PEOPLE v. NELSON









Filed 1/20/11





IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE, )
)
Plaintiff and Respondent, )
) S085193
v. )
)
BERNARD ALBERT NELSON, )
) Los Angeles County
Defendant and Appellant. ) Super. Ct. No. BA162295
__________________________________ )

A jury convicted defendant Bernard Albert Nelson of the first degree murder, robbery, and attempted carjacking of Richard Dunbar. It concluded, as a special circumstance, that the murder was committed in the course of the other two felonies. It also convicted him of robbing, inflicting great bodily injury upon, and attempting to murder Miguel Cortez. In addition, it found defendant guilty of attempting to murder Giovanni Boccanfuso, Charles Coleman, and “John Doe.” It found that Boccanfuso and Coleman were peace officers engaged in the performance of their duties when attacked, and that defendant personally used a firearm during the crimes. Defendant was sentenced to death.
This appeal is automatic. We affirm the judgment.

I. FACTUAL BACKGROUND

A. Guilt Phase

1. Murder, Robbery and Attempted Carjacking of Richard Dunbar

a. Prosecution evidence

On the night of April 5, 1995, Richard Dunbar was murdered in front of the West Palms apartment complex on Alvern Street in Los Angeles. Christie Hervey heard the gunshots and told her son to call 911. From her balcony, she saw a man lying in the street, crying for help. Another man walked swiftly toward Hervey, coming within 40 feet of her.[1] He carried a gun and looked over his shoulder at the victim. The area was brightly lit; Hervey’s view of the gunman was unobstructed. Two years later police showed Hervey six photographs. She picked defendant’s photograph as that of the gunman. She identified defendant at the preliminary hearing and again, positively, at trial.
Lacourier Davis, a security guard, also heard the shots. He saw a man sitting on the ground with his back against a car, and blood flowing from a hole in his chest. The victim was identified as Mr. Dunbar by his sister and his roommate. He died of two fatal gunshot wounds, one passing through his lung and the other puncturing his aorta.
His roommate testified that Dunbar took his car keys when he left their Inglewood Avenue apartment that evening. While his new BMW was found at the crime scene, the keys were missing. Dunbar’s other personal effects, including his driver’s license, were found at the scene.
Guilt was established by defendant’s admissions and by ballistics evidence connecting several events.
On a single night nine months before the murder, defendant and Frank Lewis committed a series of robberies. Lewis was fourteen years old; defendant an adult. Defendant gave Lewis a gun and drove around Hollywood looking for victims. He waited in the car while Lewis accosted the targets. One intended victim sprayed Mace at Lewis, who ran away. Defendant responded by slapping his young confederate. When the pair saw Lisa La Pierre in her parked car, defendant directed Lewis to steal her phone. Wanting to prove himself, Lewis shot La Pierre, then returned the gun to defendant. A .380-caliber cartridge casing was found at the crime scene. Ms. La Pierre survived the shooting.[2] When Lewis testified at defendant’s trial he was serving a California Youth Authority (now Division of Juvenile Justice) term for the attempted murder.
Seventeen months after the Dunbar murder, Los Angeles police responded to a report of gunshots at 9700 Glasgow Place. They encountered several members of the MoneySide Hustlers gang. One of the men fled, dropping a .380-caliber pistol. A ballistics expert testified that this discarded gun fired the cartridge casings recovered at the Dunbar and La Pierre crime scenes.
Glenn Johnson was one of the gang members at Glasgow Place. When police interviewed him after the incident, Johnson was out of custody, friendly, and cooperative. He told Detective Ronald Cade that defendant said he was “trying to carjack somebody and they wouldn’t cooperate so he killed him.” Defendant gave the location of the killing as the West Palms apartment complex where Dunbar was murdered. Johnson saw defendant drop a .380-caliber pistol when he ran from Glasgow Place. Sometime before the Glasgow Place incident, defendant had loaned the gun to Johnson and told him to “be careful, there was some murders on the gun.”
Detective Cade told Johnson he might receive reward money, and later gave him $100. Cade did not intercede for Johnson on any cases. At trial, Johnson either denied, or said he could not recall, making the statements to Cade. Excerpts of the tape recorded interviews were admitted as prior inconsistent statements.

b. Defense evidence

Dr. Scott Fraser testified as a defense expert witness on eyewitness identification. According to Dr. Fraser, studies have shown that a number of factors affect one’s ability to recognize faces. The following were among the factors he addressed.
Distance. There was conflicting evidence as to how close Ms. Hervey was to the gunman. She estimated 40 feet. Dr. Fraser’s later measurements at the scene suggested 100 feet. Measurements taken by Detective Cade, who testified on rebuttal, suggested 75 feet. Measurements taken by a defense investigator, who testified on surrebuttal, were consistent with those of Dr. Fraser. The distance was significant because, according to Dr. Fraser, the ability to recognize even familiar faces “drops down to essentially nil” beyond 80 feet. For strange faces, “recognition accuracy drops off dramatically” beyond 50 feet.
Kinetic distortions. According to Dr. Fraser, it is difficult to maintain focus on a moving object: “[W]e jerk and jump ahead in order to try to keep up with it. And in those transitions of keeping up with it, there’s no fixation. So less information is stored.” Hervey testified that defendant walked swiftly toward her while looking back at his victim.
Weapons focus. A weapon tends to distract attention. Hervey testified defendant was carrying a gun.
Time. Memory degrades over time; Hervey was first shown the photo lineup two years after the murder.

2. The Attempted Murder of Miguel Cortez

On the night of August 16, 1995, security guard Miguel Cortez was stationed at a fence enclosing two Hollywood nightclubs. He was grabbed from behind, but managed to get a look at his assailant’s face. He identified defendant as the man who shot him four times, in the eye, cheek, stomach, and hand. Multiple surgeries were required to treat those injuries. Defendant took Mr. Cortez’s pistol, a nine-millimeter Beretta, and his beeper, saying, “I took your shit.” Mr. Cortez identified defendant’s photo from a group of six men. He also identified defendant at a preliminary hearing and at trial. A ballistics expert testified that the .380-caliber bullets and cartridge casings found at the scene of the Cortez shooting were fired by the pistol that defendant dropped at Glasgow Place, to the “exclusion of all others.”
In addition to being identified by Mr. Cortez, defendant made incriminating statements to Leonard Washington, a convicted bank robber. Defendant said he had shot someone to obtain a nine-millimeter Beretta and commit a bank robbery. Washington testified: “He told me in the exact words he had to gun somebody down to get it.” Defendant said he believed he “killed the guy.”
Washington told Detective Cade that defendant had loaned him the nine-millimeter, which Washington used in a drive-by shooting. After the shooting, Washington abandoned the car, and the pistol was found by the Inglewood police. When Washington admitted this, defendant replied, “No big deal, I smoked a security guard to get the gun.”

3. Attempted Murders of Police Officers and “John Doe”

Shortly after midnight on May 7, 1997, uniformed Los Angeles Police Officers Charles Coleman and Giovanni Boccanfuso were on patrol in a marked police car. They saw a Chevrolet Monte Carlo roll through a stop sign and pick up speed. Stolen cars were common in the vicinity, and Monte Carlos, in particular, were a frequent target. The officers pursued the Monte Carlo to check the license plate and determine whether it had been reported stolen.
As the Monte Carlo and trailing patrol car approached an intersection, a Jeep pulled away from the curb and drove through the intersection with its headlights off. Officer Coleman was concerned because “this was fairly typical behavior of somebody who is about to do a drive-by shooting.” However, it was the passenger in the Monte Carlo who did the shooting. He climbed out onto the open window frame, braced his arms on the roof, and aimed a pistol at the driver of the Jeep.[3] Then, instead of firing at the Jeep, he pointed the pistol at the patrol car and fired four to six shots at the officers.
The Monte Carlo sped away with the patrol car in pursuit. When the Monte Carlo swerved at an intersection, defendant jumped or fell out, with a pistol in his hand. He tumbled three or four times and the gun slid across the pavement. Officer Boccanfuso chased him on foot, closing to within three feet of him, when defendant turned around. He pointed another pistol at the officer, but dropped it. An expended shell casing stuck in the chamber of this pistol prevented it from being fired. Defendant scaled a 10-foot wall and eluded Boccanfuso. He was caught an hour later at the registered address of the abandoned Monte Carlo. He had fresh abrasions on his elbows and one knee.
At trial, the officers identified defendant as the gunman. According to Officer Boccanfuso, they were no more than a car’s length from defendant when he shot at them, nothing obscured his face, and the intersection was well lit by street lights. Officer Coleman testified, “I got a good look at him [when] he shot at us.” Moreover, as Officer Boccanfuso chased defendant on foot, he saw his face again several times, for a total of perhaps 10 seconds, as defendant looked back during the pursuit. Boccanfuso also “star[ed] right at his face” when defendant stopped within three feet and pointed the gun at him.

B. Penalty Phase

1. Prosecution Evidence

a. Victim impact evidence

Victim impact evidence was given by Richard Dunbar’s mother, father, sister, two brothers, and sister-in-law. Their testimony was brief and relatively subdued. Together they described Dunbar as an attractive young man on the cusp of a successful acting and modeling career, a son and brother to whom they were close and whom they sorely missed. His murder changed their lives “tremendously” and “dramatically.”

b. Evidence of defendant’s other violent crimes

i. Attempted murder of Lisa La Pierre

Frank Lewis essentially repeated his guilt phase testimony regarding defendant’s responsibility for the shooting of Ms. La Pierre. (See ante, pt. I.A.1.a.)
Ms. La Pierre testified that she was sitting in her parked car, talking on her cell phone. The next thing she knew she woke up in a hospital. A gunshot to her neck left her permanently paralyzed from the shoulders down, unable to breathe on her own, and unable to live without the assistance of others.

ii. Bank robberies

As he did with Frank Lewis, defendant used a juvenile, Leonard Washington, to commit a series of armed robberies, this time of banks. Each time defendant waited in the car. According to Washington, on December 17, 1996, defendant, Washington, and a third man robbed Topa Savings Bank and Great Western Bank. The total taken in the two robberies was approximately $9,000. A teller from the Topa Savings Bank testified that $2,500 to $3,000 was taken from him at gunpoint.
When he testified, Washington was incarcerated for these crimes, having been apprehended during a third bank robbery. He was bitter at defendant for abandoning him at the scene as the police closed in, and for failing to get him a lawyer.[4]

2. Defense Evidence

Defendant’s mother, Barbara Nelson, testified that defendant’s father physically abused him. She also admitted neglecting him emotionally. Mrs. Nelson married at seventeen. When defendant was an infant, the family lived in a trailer next to her parents in Batesville, Mississippi. Her husband often slapped, choked, and kicked her. To keep defendant from crying, Mr. Nelson stuffed cotton into his mouth and taped his lips shut. He also pushed defendant’s head underwater when Mrs. Nelson was bathing him. If Mrs. Nelson’s family responded to her screams, Mr. Nelson would hold defendant up by his feet and threaten to drop him if they came closer. When defendant was two years old, the family moved to Mr. Nelson’s home, British Honduras. There, according to Mrs. Nelson, “the abuse got ten times worse.”
Next, the family moved to Roswell, New Mexico. There Mrs. Nelson was hospitalized for an appendix that ruptured when Mr. Nelson beat her. When Mr. Nelson brought defendant and his two-year-old brother James to visit her, Mrs. Nelson could see that James had been slapped so hard he had a handprint on his face. James died from a blood clot in his brain, but Mrs. Nelson did not inform the police of the abuse. After his death, Mrs. Nelson became so depressed that she was mute for months at a time. Because she was too depressed to talk to him, defendant “had to try to deal with life [himself].”
Although Mrs. Nelson left her husband and moved to Milwaukee, they eventually reunited and had another son, Brian. When Mr. Nelson stuffed cotton into Brian’s mouth, a babysitter called the police. Mrs. Nelson obtained a restraining order against her husband and moved in with her sister’s family. That Christmas Mr. Nelson sat outside the sister’s house with a gun, threatening to kill all of them. The next month he killed himself. Mrs. Nelson had another abusive marriage that ended in divorce.
Because defendant was bullied in Los Angeles, Mrs. Nelson sent him home to Mississippi to complete high school. Mrs. Nelson, a hospital secretary, encouraged defendant to become a phlebotomist, which he did. Defendant had a daughter, Ania, for whom he cared while her mother worked.
Mrs. Nelson loved defendant and regretted that her chronic depression had prevented her from better caring for her children.
Defendant’s aunt, cousin, and half brother also testified in his behalf. Eunice Edwards, Mrs. Nelson’s sister, lived next door when defendant was an infant. Two or three times a week she witnessed Mr. Nelson’s abuse of Mrs. Nelson and defendant. When Ms. Edwards divorced and needed work, defendant convinced her to become a phlebotomist, too. Ms. Edwards loved defendant very much. Tiffany Edwards, Eunice’s daughter, was close to defendant growing up. When she became pregnant at the age of 15, defendant brought her food. Defendant was close to his own daughter and frequently also provided child care for Tiffany’s son. Defendant helped Ascia McCullen, his half brother, with his schoolwork and encouraged him to become a good student. Ascia loved defendant.
Psychologist Richard Romanoff testified as an expert defense witness. He met with defendant’s mother and aunt, reviewed defendant’s file, administered various tests, and interviewed defendant for 10 hours.
Dr. Romanoff testified that defendant was “very bright” and well understood society’s norms. He found no evidence of organic impairment or acute psychiatric illness. However, he did diagnose defendant as suffering from an antisocial personality disorder. According to Dr. Romanoff, this disorder “affects a person’s ability to take account of the rights and feelings of others.” It manifests itself in manipulative behavior, poor anger management, superficial social relationships, and criminality. The disorder is thought to arise from failure to attach to one’s primary caregivers during infancy and early childhood. In defendant’s case, the likely genesis was his father’s physical abuse and eventual suicide, as well as his mother’s emotional absence. In Dr. Romanoff’s opinion, defendant’s antisocial personality disorder was compounded by alcohol abuse.
On cross-examination, Dr. Romanoff acknowledged that defendant’s 1994 probation report indicated that he denied using alcohol or drugs, and that a 1997 probation report stated the probation officer had found no indication of such use. Dr. Romanoff also acknowledged that defendant told him he had a “pretty happy childhood.”

II. DISCUSSION

A. Guilt Phase Issues

1. Sufficiency of the Evidence

Defendant claims the evidence is insufficient to support his convictions for the Dunbar crimes and the special circumstance finding. He also attacks the evidentiary sufficiency for the attempted murder of “John Doe.” The claims lack merit.[5]
“In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we ‘examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—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.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance allegations. [Citation.] ‘[I]f the circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.’ [Citation.] We do not reweigh evidence or reevaluate a witness’s credibility. [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1129; see People v. Lindberg (2008) 45 Cal.4th 1, 27.)

a. The crimes against Richard Dunbar

i. The murder

Christie Hervey identified defendant as the gunman who walked swiftly toward her and who looked back at the body of Mr. Dunbar. (See ante, pt. I.A.1.a.) Defendant claims Ms. Hervey’s testimony was insubstantial because she was 100 feet away, could have seen the man only briefly, had to study the photo lineup for 20 minutes before identifying defendant, and could not say whether the man had a mustache or beard. His argument fails. According to Ms. Hervey and Detective Cade, Ms. Hervey was 40 to 75 feet from the gunman. The scene was brightly lit and her view was unobstructed. (See ante, pt. I.A.1.a.) Ms. Hervey not only identified defendant in the photo lineup, but also at the preliminary hearing and again at trial. (Ibid.) Moreover, defendant admitted to Glenn Johnson that he killed a man during a failed carjacking at the West Palms apartment complex, the scene of Dunbar’s murder. Johnson saw him in possession of the pistol used to kill Dunbar. (Ibid.) Finally, the same pistol was used in the attempted murder of Miguel Cortez, and Mr. Cortez identified defendant as his attacker. (See ante, pt. I.A.2.)

ii. The robbery

Defendant claims the evidence of robbery was insubstantial because no one saw him take Mr. Dunbar’s car keys, he did not admit having taken them, and they were not discovered in his possession. However, there was substantial circumstantial evidence of the taking. Mr. Dunbar left his apartment with his keys and used them to drive to the murder scene. They were not found on his person or at the scene, although his other personal effects were. (See ante, pt. I.A.1.a.) We held substantially similar circumstantial evidence sufficient to support a robbery-murder special circumstance finding in People v. Maury (2003) 30 Cal.4th 342. The victim was last seen in Maury’s company. She had a roll of cash and announced her intention to buy marijuana with it. However, neither money nor drugs were found when her body was later discovered. We concluded “the jury could reasonably infer” that Maury had “stole[n] either the money or marijuana from [her].” (Id. at p. 402.)

iii. The attempted carjacking

Defendant claims the evidence of attempted carjacking was insubstantial. He argues “it was far more likely than not that there was no intent or attempt to take the vehicle, as the victim was incapacitated and nothing prevented the assailant from taking the victim’s car.” To the contrary, the jury was entitled to conclude that defendant, having taken Mr. Dunbar’s car keys, would have taken the car itself, but that the gunshots drew the security guard to the scene and may have prompted neighbors to call the police, as Ms. Hervey did. (See ante, pt. I.A.1.a.) Defendant himself told Glenn Johnson that he killed a man at the West Palms complex because he resisted an attempted carjacking. Further, the gun defendant later abandoned was conclusively linked to the murder through ballistics evidence. (Ibid.)

iv. Special circumstance

As with the underlying crimes, substantial evidence supported the special circumstance finding that the murder occurred in the commission of robbery or attempted carjacking. “From evidence that a defendant killed another person and at the time of the killing took substantial property from that person, a jury ordinarily may reasonably infer that the defendant killed the victim to accomplish the taking and thus committed the offense of robbery. (People v. Hughes (2002) 27 Cal.4th 287, 357; People v. Kipp [(2001)] 26 Cal.4th [1100,] 1128; People v. Turner (1990) 50 Cal.3d 668, 688.)” (People v. Bolden (2002) 29 Cal.4th 515, 553 [special circumstance finding supported by substantial evidence].)

b. The attempted murder of “John Doe”

i. Specific intent

“Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. (Pen. Code, § 21a; People v. Lee (2003) 31 Cal.4th 613, 623.)” (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 7.)
Defendant contends there was insufficient evidence that he intended to kill “John Doe,” the driver of the Jeep.
When Doe drove through the intersection, defendant pulled himself up onto the window frame on the passenger side of his car, braced his arms on the roof, and aimed at Doe. He changed his target only when he noticed the patrol car and shot at the officers, instead. (See ante, pt. I.A.3.) The evidence supported the jury’s conclusion that defendant intended to kill the officers. Defendant does not challenge those convictions here. The evidence is also compelling that defendant aimed at Doe intending to kill him. Indeed, at trial defense counsel argued that defendant was shooting at Doe, not at the officers. Simply pointing his gun at Doe under these circumstances is sufficient to support a finding of attempted murder. As we noted in People v. Dillon (1983) 34 Cal.3d 441, 455, “the law of attempts would be largely without function if it could not be invoked until the trigger was pulled, the blow struck, or the money seized.” Also instructive is our decision in People v. Ervine (2009) 47 Cal.4th 745. In Ervine we concluded that sufficient evidence supported a conviction for attempting to murder a third police officer, because the evidence indicated that the defendant wanted to kill all the officers at the scene but had “undertaken a direct but ineffectual act toward accomplishing the intended killing by firing . . . at the [two] officers who posed the most immediate threat.” (Id. at p. 786.) In the present case, as in Ervine, it appeared that defendant was first trying to eliminate the threat posed by the police officers who were pursuing him, before returning his attention to Doe, the attempted murder victim.

ii. Premeditation

Defendant contends the evidence was also insufficient to support the jury’s verdict that the attempted murder of Doe was premeditated and deliberate.
An intentional killing is premeditated and deliberate if it occurred as the result of reflection rather than unconsidered or rash impulse. (People v. Stitely (2005) 35 Cal.4th 514, 543; People v. Perez (1992) 2 Cal.4th 1117, 1125.) However, the requisite reflection need not span a specific or extended period of time. Thoughts may follow each other with great rapidity, and cold, calculated judgment may be arrived at quickly. (People v. Harris (2008) 43 Cal.4th 1269, 1286-1287 (Harris); People v. Koontz (2002) 27 Cal.4th 1041, 1080.) A conviction will be upheld on any reasonable theory supported by substantial evidence. (People v. Manriquez (2005) 37 Cal.4th 547, 577; People v. Hughes, supra, 27 Cal.4th at p. 370.)
Defendant clearly formed an intent to kill and took several steps to achieve that end. He took up a firearm, climbed out of a moving car, sat on the window frame, reached across the roof, braced himself, and aimed at Doe. He had ample time to premeditate and deliberate. (See Harris, supra, 43 Cal.4th at p. 1287.)

2. Consciousness of Guilt

Defendant contends the trial court erred by admitting a handwritten “script” giving defendant an alibi for the attempted murders of Doe and the officers. Detective Mark Campbell impounded a Jeep from defendant’s girlfriend, “Cher.”[6] The Jeep was registered to “Terry James.” Robert Cross, who lived at the Jeep’s registered address, told Campbell that “Terry James” was defendant.[7] Campbell found a backpack in the Jeep. It contained the script, other handwritten notes, and a notebook with rap lyrics. On cross-examination, Campbell admitted that the script and the other notes did not appear to be in the same handwriting as the lyrics. As noted in part II.B.4, post, defendant’s authorship of the rap lyrics was undisputed. The script was read into the record.[8]
While the prosecutor did not expressly say so, he apparently offered the script to prove that defendant had tried to fabricate an alibi, thereby manifesting a consciousness of his guilt. Defendant objected to the script on the ground it was not in his handwriting. The court overruled the objection, noting that it was found among his possessions.
An attempt to fabricate evidence may manifest a defendant’s consciousness of guilt, but only if the attempt was made by the defendant or by another with the defendant’s knowledge or authorization.[9] (People v. Bell (2004) 118 Cal.App.4th 249, 256; People v. Caruso (1959) 174 Cal.App.2d 624, 640-641; People v. Perez (1959) 169 Cal.App.2d 473, 477.)
Defendant claims there was no evidence that he “had anything to do with” the script, which he notes was dated May 22, 1997. Because he had been arrested two weeks earlier, he could not have placed the script in the backpack. The backpack and car had been accessible to others after his arrest.
Assuming that admission of the script was error, the error was clearly harmless. Evidence that defendant tried to fabricate an alibi for the incident involving the officers and John Doe turned out to be entirely superfluous. Defendant admitted he was the shooter. In arguing for the exclusion of the rap lyrics, as discussed below, defense counsel represented to the court that “we’re not saying somebody else shot the police officers, shot at police officers, or shot at the car.” “I am going to argue, frankly, the shooting was not directly at the police officers, and it had nothing to do with the fact that they were police officers.” In his guilt phase argument to the jury, defense counsel admitted that defendant was at the scene and was the shooter, although he denied that defendant was attempting to murder the police officers.[10] Moreover, following admission of the script, the parties did not refer to it again, except during closing argument. There, defense counsel argued the script was prepared by defendant’s girlfriend, and the prosecutor characterized this argument as pure speculation because the girlfriend did not testify. The prosecutor did not argue to the jury that the script showed defendant’s consciousness of guilt.[11]

3. Instructions on Lesser Related Offenses

With regard to the attempted murders of Officers Boccanfuso and Coleman, the court declined defendant’s request to instruct on assault with a deadly weapon (§ 245) and negligent discharge of a firearm (§ 246.3) as lesser offenses. In People v. Birks (1998) 19 Cal.4th 108, this court overruled its holding in People v. Geiger (1984) 35 Cal.3d 510 that a defendant’s unilateral request for a related-offense instruction must be honored over the prosecution’s objection. (Birks, at p. 136; see People v. Rundle (2008) 43 Cal.4th 76, 146-147; People v. Yeoman (2003) 31 Cal.4th 93, 129.) Defendant admits that assault with a deadly weapon and negligent discharge of a firearm are not lesser included offenses of attempted murder, but rather lesser related offenses. Thus, under Birks, the court did not err. We have previously rejected an argument that the Birks rule violates the federal Constitution. (Rundle, supra, 43 Cal.4th at pp. 147-148.)

4. Instructions on Circumstantial Evidence

Defendant contends that the standard instructions on circumstantial evidence, which use the phrase “appears to you to be reasonable,” undermine the constitutional requirements of proof beyond a reasonable doubt. “We have repeatedly rejected the argument and continue to do so. (People v. Maury, supra, 30 Cal.4th at p. 428.)” (People v. Horning (2004) 34 Cal.4th 871, 910.)




TO BE CONTINUED AS PART II….


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