P. v. Molina

Filed 5/25/10 P. v. Molina CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Barry A. Taylor, Judge. Affirmed.

Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

______________

Ernie Molina appeals from the judgment entered upon his conviction by jury of first degree murder (Pen. Code, 187, subd. (a)).^[1] The jury found to be true the firearm use allegations within the meaning of section 12022.53, subdivisions (b) through (d). The trial court sentenced appellant to an aggregate state prison term of 50 years to life. Appellant contends that (1) the trial court erred in denying his Batson^[2]/Wheeler^[3]motion based upon its finding that a prima facie case of group bias in jury selection had not been shown, (2) alternatively, if the record is insufficient to establish a prima facie case of group bias, then the missing reporters transcript of the first day of voir dire and lack of a settled statement to replace it effectively prevents appellant from contesting the denial of his Batson/Wheeler motion and compels reversal of the judgment, and (3) the evidence is insufficient to support his conviction.

We affirm.

FACTUAL BACKGROUND

The prosecutions evidence

The murder

Appellant, David Henriquez (Henriquez), Giovanni Mora (Mora) and a person named Whisper were members of a Panorama City clique of the Brown Pride gang called the Locos, and Joe Lima (Lima) was a member of a Northridge clique of that gang called the Psychos. The two cliques were not feuding with each other, but Mora had heard there was a problem between Lima and appellant because appellant had a gun that did not belong to him.

On July 4, 2003, appellant, Henriquez, Mora, and Whisper were waiting at Henriquezs house for Lima to pick them up and take them to Lake Piru for a barbeque. Appellant showed Mora a gun he brought to shoot for the Fourth of July.

When Lima arrived at Henriquezs house, he and appellant appeared happy to see each other. The gang members got into Limas car, and he drove to an alley behind appellants residence to meet other gang members that were going to join them. During the drive, appellant and Lima began arguing loudly. Henriquez heard appellant say to Lima, Why dont we make this a clique thing, the Locos versus the Psychos.

When they arrived in the alley, the occupants got out of the car to wait for the other gang members. Lima and appellant continued arguing. Lima called appellant shady and a dirty person that could not be trusted. Appellant told Lima, I love you. You are my cousin. I will never hurt you. Lima responded, Fuck you. I dont trust you. Appellant told Lima to do something about it. Lima rushed at appellant and tried to punch him in the face five times, but appellant blocked the blows with his left hand, while his right hand was on a gun. At some point, appellant dropped his gun. Lima tried to kick it away, but appellant picked it up. Appellant threw no punches.

Because appellant did not fight back, Lima stopped and backed off. According to Henriquez, appellant responded, Why did you do that? I am going to kill you.^[4] Appellant turned to Henriquez and the other gang members and asked, Are you a snitch? You guys better not . . . rat. A minute or two after Lima had tried to punch him, appellant had a revolver in his hand, aimed it at Lima, and fired five or six times at him, striking him. Lima fell to the ground. Appellant walked closer to Lima and continued firing until there were no more bullets in the gun. Appellant said to Lima, Look what you made me do. Thats why youre dead, bitch. He then turned and ran into the house.

Lima did not have a gun and never threatened to kill appellant during the argument. According to Henriquez, it was unusual for a gang member to pull a gun on a fellow gang member. Disputes between fellow gang members were usually resolved by fistfights, which squash their dispute. Appellant never mentioned being concerned about a green light or going with Lima to the lake. Lima had no authority to put a green light on anyone. There was therefore no reason for appellant to have shot Lima.

On the day of the shooting, Priscilla Trejo (Trejo), the mother of appellants child, was living with appellant in his parents house, with their child. She and appellant believed his homeboys were after him. She was at home and heard appellant yelling in the alley, I love you. A few minutes later appellant came in and said that Lima had threatened him by stating: If you let me leave, Ill come back and get you. Appellant said that he and Lima fought, Lima pulled a gun, and appellant pulled out his gun and shot him.

The investigation

Detectives Foster Rains and Szabo arrived at the shooting scene near 5:00 p.m. They did not find any bullet casings, bullet holes or other evidence of a shooting. Later, detectives obtained two bullets at the hospital and three bullets from the Coroners office that were recovered from Limas body.

On July 7, 2003, Detectives Ray Rodriguez and Szabo spoke with appellant at his home. Appellant said he heard about the shooting but had nothing to do with it. At the time of the shooting, he was at a friends house in San Fernando. The detectives left without arresting him.

On July 22, 2003, Detective Scott Crowe and other officers executed a search warrant at the home of appellants parents, where appellant resided. The search uncovered .9-caliber bullets, 12-gauge shotgun shells, and .38-caliber ammunition in a hallway closet and, taped to the bottom of an ottoman in appellants room, a .38-caliber, five-shot revolver. Appellant was arrested.

Forensic analysis determined that the gun recovered from appellants bedroom fired two of the five bullets removed from Lima. The other three bullets were too damaged to make that determination, though their condition was consistent with having been fired from that gun.

In May 2007, Trejo spoke with Detective Crowe about the shooting, in a recorded interview. She said that appellant had told her that he shot Lima. She was pretty sure she told the detective that appellant told her Lima also had a gun, but the recording did not contain such a statement.

The defenses evidence

Appellant introduced evidence that Lima had a history of mental illness and hospitalizations, was violent, and held a grudge against him. Winston Lopez (Lopez), Limas cousin, testified that Lima threatened to kill Lopez because God told Lima that Lopez had molested Limas sister. Appellant was present at two or three gang meetings at which Lima volunteered to go on missions to retaliate for shootings at the gang by rival gang members. When cliques were formed, Lima became the shot-caller for the Psychos.

Appellants house was used by fellow gang members as a drop-off zone for guns. Three or four months before Limas shooting, Trejo had gotten rid of one such gun. Lima and fellow gang members accused appellant of selling the gun to appellants cousin, a rival gang member. Appellant believed that the gang wanted to kill him. He described several instances in which associates of the Brown Pride gang shot at him, once in May 2003 and once in June 2003.

Appellant explained that the July 4th get together was not just for a barbeque but was also to discuss his status with the gang. He and Lima began arguing in the car about the missing gun. Appellant told Lima that he was done with gang life. The argument became heated, and Lima struck him in the face. While trying to block the punches, appellants gun fell from his waistband. When he went to pick it up, Lima tried to kick appellant in the face. Lima stopped fighting after appellant picked up the gun and put it back in his pocket. Appellant knew Lima regularly carried a gun and saw a bulge in Limas waistband, though Lima never took it out during the fight. Appellant said he was going into the house, but Lima continued to insult him and threatened that if [appellant] let him leave the alley, hes going to be back. As appellant was walking to the house, Lima pulled a gun from his waistband and said, Im going to kill you, mother fucker. Appellant then shot Lima and ran into the house and told Trejo that he shot Joe because Joe had a gun and was going to shoot him.

James Shaw, Ph.D., a defense gang expert, testified that if a shot-caller made a threat, it should be taken seriously. Based on his review of the materials in this matter, he opined that the facts were consistent with Limas being a shot-caller for the Psychos and able to put a hit on appellant.

Rebuttal

The prosecution introduced rebuttal evidence that appellant was violent. George Molina, appellants father, testified that he went to the police station because appellant had threatened to burn the Molinas house down if appellant could no longer live there. Trejo testified that appellant had hit her 12 to 20 times in the past and that she probably told detectives that he had guns in the closet when they lived in Phoenix.

DISCUSSION

I. Jury selection issues

A. Introduction

On October 1, 2008, jury selection began. The transcript of that days voir dire reflected that four prospective jurors were questioned before a recess was taken. After the recess, the rest of the voir dire that day was not reported due to a malfunction of the court reporters equipment.

When voir dire resumed the next day, the trial court announced that both sides had passed for cause. This indicated that the previous days voir dire questioning of at least 10 prospective jurors, six of whom ultimately served on the jury, had not been recorded.

On its fourth peremptory challenge, after having already accepted the jury panel on at least three occasions, the prosecution thanked and excused Juror No. 6888, called as Juror No. 5 That juror had responded to voir dire questioning as follows: She was a resident of Mission Hills with two adult children and had retired after 45 years of working as a union administrative assistant. Her husband was a retired assistant to the Postmaster. Juror No. 6888 had trouble hearing the trial court because of her allergies, though she heard all of the voir dire questions. She said she could be fair to both sides. Even if the other 11 jurors disagreed with her, and after honestly listening to all points of view, she would not change her vote just to return a verdict. She had served on a federal criminal jury, on a civil jury, and on three criminal juries, all of which reached verdicts, except one that was dismissed. Her previous jury services were over a period of years, and she tried to forget them. Juror No. 6888 had no opinion about gangs because everyone should have a fair chance at whatever it is discussed. She did not have any guns in her house. She hoped and believed she would be able to tell the difference between someone who is telling the truth and someone who is not.

Defense counsel objected to the prosecutions peremptory challenge of Juror No. 6888. The following colloquy occurred: [DEFENSE COUNSEL]: Your Honor, I object to the DA excusing Juror Number 6888. I assume and I believe that she is Hispanic. My client is obviously Hispanic. I dont know what she had said that even arguably could have prompted the DA to throw her off other than her heritage. Again, the record speaks for itself. There [are] no other jurors that I would allege he did that with today, but certainly this one in my eyes was so glaring that I dont see it. [THE COURT]: Well, I dont think you have established enough for me to even inquire. Just parenthetically, I noticed that you have excused four or five people that appear to have Hispanic names themselves. [DEFENSE COUNSEL]: I havent made the DA for me doing that [sic] and I certainly had my own reasons to. We are not talking about my actions. My clients constitutional rights under both equal protection and due process [sic]. [] [THE COURT]: I dont think there is enough for me to inquire so your motion is denied. [PROSECUTOR]: Your Honor, just to also note, there are several other individuals on this particular panel that are of Hispanic or Latino ethnicity and I have passed or I have accepted those individuals so I just wanted to make sure that was noted. [THE COURT]: Okay. [PROSECUTOR]: Thats it.

B. Batson/Wheeler Claim

Appellant contends that the trial court misapprehended the reasonable inference standard in finding no prima facie case of group bias and erred in denying his Batson/Wheeler motion. He argues that there was no reason other than group bias for the prosecutor to exercise a peremptory challenge against Hispanic Juror No. 6888. He further argues that the facts that the defense also excused Hispanics and that the prosecutor left other Hispanics on the panel are not relevant. This contention is meritless.

[T]he use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16, of the California Constitution (Wheeler, supra, 22 Cal.3d at pp. 276-277) and the equal protection clause of the Fourteenth Amendment to the United States Constitution (Batson, supra, 476 U.S. at p. 89; Miller-El v. Dretke (2005) 545 U.S. 231, 238 (Miller-El)). Hispanics are a cognizable group for Wheeler purposes. (People v. Garceau (1993) 6 Cal.4th 140, 171, disapproved on other grounds in People v. Yeoman (2003) 31 Cal.4th 93, 117-118.)

The analysis for determining whether group bias motivated the prosecutions use of its peremptory challenges is well established. First, the defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. [Citation.] Second, once the defendant has made out a prima facie case, the burden shifts to the State to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes. [Citations.] Third, [i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination. [Citation.] (People v. Mills (2010) 48 Cal.4th 158, 173.)

Here, the trial court determined that appellant had failed to present a prima facie case of group bias, and thus its analysis began and ended at the first step of the three-step Batson/Wheeler analysis. The sole issue we must decide is whether a prima facie case was established.

A defendant establishes a prima facie case of discrimination by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. (Johnson v. California(2005) 545 U.S. 162, 170; People v. Hawthorne(2009) 46 Cal.4th 67, 79.) An inference is a logical conclusion deduced from a set of facts. (Johnson v. California, supra, at p. 168, fn. 4.) A prima facie case is not established simply because the excused prospective jurors are of the same background as the defendant. (See People v. Box(2000)23 Cal.4th 1153, 1188-1189.) Even exclusion of all members of a defendants race does not automatically establish a prima facie case. (People v. Crittenden (1994) 9 Cal.4th 83, 119, 120, fn. 3.) Challenging one or two prospective jurors of the same racial or ethnic group as a defendant, even when the panel contains no other members of the group, does not establish a prima facie case unless there is significant supporting evidence. (See People v. Christopher (1991) 1 Cal.App.4th 666, 673.)

[W]hen a trial court denies a Wheeler motion without finding a prima facie case of group bias the reviewing court considers the entire record of voir dire. [Citations.] As with other findings of fact, we examine the record for evidence to support the trial courts ruling. Because Wheeler motions call upon trial judges personal observations, we view their rulings with considerable deference on appeal. [Citations.] (People v. Mayfield (1997) 14 Cal.4th 668, 723; see also People v. Box, supra, 23 Cal.4th at p. 1188, disapproved on other grounds in People v. Martinez (2010) 47 Cal.4th 911, 948, fn.10; see People v. Reynoso (2003) 31 Cal.4th 903, 908 [denial of a Wheeler motion is givencustomary great deference].) Where, as here, it is unclear whether the trial court used the reasonable inference standard, rather than the disapproved strong likelihood standard, we review the record independently. (People v. Kelly (2007) 42 Cal.4th 763, 779.)

We begin our review with a presumption that the prosecution constitutionally exercised its peremptory challenges. (People v. Ayala (2000) 24 Cal.4th 243, 260.) We also bear in mind that peremptory challenges are not challenges for causethey are peremptory. We have said that such challenges may be made on an apparently trivial or highly speculative basis. (People v. Jones (1998)17 Cal.4th 279, 294.) Indeed, they may be made without reason or for no reason, arbitrarily and capriciously. (People v. Williams (1997) 16 Cal.4th 635, 663.)

Defense counsel objected to the prosecutors use of a peremptory challenge against prospective Juror No. 6888, believing that that juror was excused because she was Hispanic, as was appellant. That was the sole basis of the Batson/Wheeler motion. Defense counsel could point to nothing specifically indicating that Juror No. 6888 was excused because of her ethnicity. The motion was based exclusively on defense counsels opinion that nothing Juror No. 6888 said warranted excusing her. But it is difficult to assess the bona fides of the exercise of peremptory challenges because subjective considerations, such as reliance on body language and the prospective jurors mode of answering questions, are permissible in exercising peremptory challenges. (People v. Johnson (1989) 47 Cal.3d 1194, 1219.)

Nothing in the questioning of Juror No. 6888 suggested a discriminatory motivation by the prosecutor. Of the four peremptory challenges exercised by the prosecutor up to and including the challenge to Juror No. 6888, defense counsel acknowledged there [are] no other jurors that I would allege [the prosecutor]  . . . [excused because of group bias] . . . today . . . . Only the prosecutors fourth peremptory challenge was questioned, and the prosecutor had already accepted the jury with several Hispanic jurors on it. Furthermore, the record is silent on the number of Hispanics in the jury venire and jury panel.

While the exercise of even one peremptory challenge for a discriminatory reason is improper (People v. Silva (2001) 25 Cal.4th 345, 386), it does not follow that a single challenge to a member of defined group by itself makes out a prima facie case. (People v. Bell (2007) 40 Cal.4th 582, 598, fn. 3 [Although circumstances may be imagined in which a prima facie case could be shown on the basis of a single excusal, in the ordinary case, including this one, to make a prima facie case after the excusal of only one or two members of a group is very difficult].) If it did, any time a prosecutor challenged a single juror who was a member of a defined group, the prima facie case would be established, emasculating the requirement that a prima facie showing be made. The exercise of a limited number of such challenges which are insufficient to establish a pattern of such use requires significant supporting evidence (People v. Christopher, supra, 1 Cal.App.4th at p. 673), which appellant has failed to provide.

Relying on Miller-El,which sanctioned the use of a comparative analysis between the excluded juror and those allowed to remain on the jury, defendant argues that we should conduct such an analysis. We do not find Miller-El, which conducted a comparative analysis in the third step of the Batson/Wheeler analysis, applicable to determining whether a prima facie case is presented.

As stated in People v. Carasi (2008) 44 Cal.4th 1263, 1295-1296, in a first-stage Wheeler-Batson case, comparative juror analysis would make little sense. In determining whether defendant has made a prima facie case, the trial court did not ask the prosecutor to give reasons for his challenges, the prosecutor did not volunteer any, and the court did not hypothesize any. Nor, obviously, did the trial court compare the challenged and accepted jurors to determine the plausibility of any asserted or hypothesized reasons. Where, as here, no reasons for the prosecutors challenges were accepted or posited by either the trial court or this court, there is no fit subject for comparison. [Citation.] Whatever use comparative juror analysis might have in a third-stage case for determining whether a prosecutors proffered justifications for his strikes are pretextual, it has little or no use where the analysis does not hinge on the prosecutions actual proffered rationales, and we [may properly] decline to engage in a comparative analysis in a first-stage case. [Citation.]

C. Missing portion of voir dire transcript

On July 13, 2009, the trial court held a hearing to settle the record for the missing jury voir dire and selection proceedings conducted on October 1, 2008. The trial court found: Due to incomplete notes and the loss of recollection of trial counsel, the parties are unable to prepare a settled statement reconstructing the missing first day of jury voir dire and selection in this case.

Appellant contends that if the existing record is insufficient to establish a prima facie case of group bias, then the lack of a settled statement to substitute for the missing reporters transcript of oral proceedings precludes appellant from contesting the denial of his Batson/Wheeler motion, compelling reversal of the judgment. He argues that he has a due process right to an appellate record adequate to allow meaningful appeal. This contention is without merit.

Section 1181, subdivision 9, provides that because of the loss or destruction, in whole or in substantial part, of the notes of such reporter . . . the reviewing court shall have power to set aside and vacate the judgment . . . from which an appeal has been taken or is to be taken and to order a new trial of the action or proceeding. The unavailability of a full reporters transcript does not automatically entitle a defendant to a new trial. (People v. Jones (1981) 125 Cal.App.3d 298, 300.) Where other methods of reconstructing the trial record are available, the defendant must proceed with those alternatives in order to obtain review. (Ibid.) It must be shown that it is impossible to secure an adequate substitute for the missing transcript testimony and that there are substantial issues requiring the transcript. (Ibid.) The defects in the record must be of a prejudicial character, not merely inconsequential inaccuracies or omissions. (People v. Moore (1988) 201 Cal.App.3d 51, 56.)

We do not find the defects in the reporters transcript here to be prejudicial. All of the prosecutions peremptory challenges were exercised on the second day of voir dire, for which there is an adequate record. When the Batson/Wheeler motion was made, defense counsel did not claim that there were any other instances, besides the one challenged, in which the prosecution used a preemptory challenge inappropriately. To the contrary, defense counsel stated that [t]here [are] no other jurors that I would allege [the prosecutor] . . . [peremptorily challenged because of group bias] . . . today. Rather, defense counsel argued that the only basis for the preemptory challenge of Juror No. 6888 was because that juror was Hispanic. Consequently, we need not review the transcript of the voir dire to determine whether there were other Hispanics improperly excluded from the jury.

Further, appellant argues that the missing record is necessary to compare Juror No. 6888 with jurors retained on the jury to determine if the retained jurors were similarly situated to the excused juror, as probative of the fact that ethnicity was the only reason for the exclusion. As we stated in part IB, ante, such a comparison is neither desirable nor logically beneficial for a denial of a Batson/Wheeler motion based upon the failure of the defendant to present a prima facie case of group bias. (People v. Carasi, supra, 44 Cal.4th at pp. 1295-1296.) Because we find such a comparison inappropriate in this case, the missing transcript is unnecessary for that purpose.

We conclude that the transcript of voir dire in the record before us is adequate to resolve the Batson/Wheeler issue presented.

II. Sufficiency of the evidence

Appellant contends that there is insufficient evidence to support his conviction of first degree murder. He argues that while he admitted shooting Lima, there was inadequate evidence that he acted deliberately and with premeditation. This contention is without merit.

In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995)37 Cal.App.4th 351, 358.) [T]he appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] This standard applies whether direct or circumstantial evidence is involved. (People v. Catlin (2001) 26 Cal.4th 81, 139.) Reversal on this ground is unwarranted unless upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. (People v. Bolin, supra, at p. 331.) Given this courts limited role on appeal, appellant bears an enormous burden in claiming there was insufficient evidence to sustain the finding. If the finding is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

Murder is the unlawful killing of a human being with malice aforethought ( 187), and is first degree murder if committed with premeditation and deliberation. ( 189.) Rarely will the intent of a wrongdoer be proven by direct evidence for [o]ne who intentionally attempts to kill another does not often declare his state of mind either before, at, or after the moment he shoots. (People v. Lashley (1991) 1 Cal.App.4th 938, 945.) Rather, circumstantial evidence will usually determine this issue.

The evidentiary sufficiency of a finding of premeditation and deliberation requires review of, among other circumstantial factors, (1) facts about the defendants conduct showing prior planning, (2) facts about the defendants relationship with the victim from which motive can be inferred, and (3) facts about the manner of killing from which the jury could infer that the defendant intentionally wanted to kill the victim as part of a preconceived plan to do so in a particular way for a specific reason. (People v. Anderson (1968) 70 Cal.2d 15, 26-27.)

There is overwhelming evidence here that appellant intended to kill Lima. He shot him five times from close range, continuing to shoot him even after he had fallen to the ground. This is a strong indicator of an intent to kill. (See, e.g., People v. Thomas (1992) 2 Cal.4th 489, 518; see also People v. Francisco (1994) 22 Cal.App.4th 1180, 1192 [five or six shots from five feet away]; People v. Chinchilla (1997) 52 Cal.App.4th 683, 690; People v. Lashley, supra, 1 Cal.App.4th at p. 945 [shooting at point-blank range undoubtedly creates a strong inference that the killing was intentional].)

The question for our determination is whether there is sufficient evidence that the intent to kill was deliberate and premeditated. The evidence supports the jurys finding that it was. Appellant was going to Lake Piru with Lima and other Brown Pride gang members. At the time, appellant knew that Lima and the other gang members were angry with him because they believed that he had improperly disposed of a gun that did not belong to him. Appellant and Lima got into a heated argument in the car. When they got out of the car in the alley to wait for the other gang members, the argument continued. Lima called appellant names, but appellant did not respond in kind. He remained calm and told Lima that, I love you. You are my cousin. I will never hurt you. When appellant told Lima to do something about it, Lima rushed appellant and began punching him. Appellant still remained composed, as he blocked the punches and did not throw any punches himself.

Because appellant was not fighting back, Lima stopped fighting and backed away. In gang culture, it was customary that this fistfight should have squashed or concluded their disagreement. It was unusual for fellow gang members to threaten or shoot each other with guns. According to Mora, five to 10 minutes then elapsed after the fistfight, during which the parties verbally argued before appellant shot Lima. At one point, as Lima continued calling appellant names, appellant said, Why did you do that? I am going to kill you. I am going to dome your ass. Lima told appellant to go ahead and kill him. Appellant then demonstrated the cold and calculated presence of mind to turn to Henriquez and other gang members to ask if they were snitches and to tell them that they had better not rat on him. Appellants statements of what he was going to do and that the other gang members should not snitch reflect that he deliberated and premeditated Limas murder before killing him. He then shot Lima to death, unloading all of the bullets in his gun at close range, continuing to shoot even after Lima fell to the ground. While the time period during which this deliberation and premeditation occurred was not much before the shooting, premeditation and deliberation do not require much time. (People v. Hughes (2002) 27 Cal.4th 287, 371.) Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. (Ibid.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

________________, P. J.

BOREN

We concur:

___________________, J.

DOI TODD

___________________, J.

CHAVEZ

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2]Batson v. Kentucky(1986) 476 U.S. 79 (Batson).

^[3]People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).

^[4] According to Mora, before the fistfight, appellant had already threatened Lima, stating, I am going to Dome your ass, meaning shoot Lima in the head. After Lima stopped punching appellant, they verbally argued for five to 10 minutes, during which appellant said, I cant believe you hit me. I love you. I would never hurt you. Lima replied, You are full of shit. You are a traitor. I cant trust you. After that, appellant became angry and said, I am going to kill you. Lima responded, Go ahead, placing his hands in his pocket and ignoring appellant. Appellant continued arguing with him, and Lima called him a Bum.