Filed 8/22/14 P. v. Medeiros CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE,
Plaintiff and Respondent,

v.

A NTHONY JOSEPH MEDEIROS,
Defendant and Appellant. B248686
(Los Angeles County Super. Ct. No. LA070072)

APPEAL from a judgment of the Superior Court of Los Angeles County, Gregory A. Dohi, Judge. Affirmed. Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D.
Matthews and Rama R. Maline, Deputy Attorney s General, for Plaintiff and Respondent.2

A jury convicted appellant Anthony Joseph Med e iros of one count of attempted murder with premeditation and deliberation and one count of assault with a deadly weapon. In this appeal from the judgment of conviction, a ppellant
contends that: (1) the trial court abused its discretion in admitting into evidence a recording of a jailhouse telephone conversation with his mother ; (2) the court erred in denying his m otion for a new trial based on alleged prosecutorial misc onduct ; and (3) the re is insufficient evidence of premeditation and deliberation to sustain the jury’s finding . We find none of his contentions meritorious and therefore
affirm.

FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence Appellant lived with his mother, Tina Shadley, and his stepfather, Eugene Hatfield, in an apartment in Valley Village

. Javier Acuna lived in an apartment upstairs from appellant

. Acuna’s friend, Christopher Cisneros, often spent time at Acuna’s apartment and knew appellant

. The victim, Mat hew Lorenceau, lived in an apartment building that was adjacent to appellant’s apartment building. On August 2, 2011, around 9:00 p.m., Lorenceau heard firecrackers being set off at appellant’s apartment building

. He went outside to his building’s parking
lot , looked through a missing slat in the fence, and saw people throwing
firecrackers

. Lorenceau yelled at them to stop, but they could not hear him

. Lorenceau then jumped on a wall to look over the fence and saw four men in the

pa rking lot

. Lorenceau angrily told them to stop or he would “bash their heads.” The men responded by trying to get Lorenceau to come fight with them. One of the men gestured toward another man whom Lorenceau had not previously noticed

. Lorenceau saw t he second man , later identified as appellant,3

start running quickly toward him

. Appellant ran between two cars in the parking lot toward the fence where Lorenceau was standing

. Appellant jumped and struck
Lorenceau in the chest twice

. Lorenceau tried to strike back at appellant but was
unable to reach him

. Lorenceau noticed blood on his shirt and realized appellant
had stabbed him. Lorenceau walked to his neighbor’s house for help , and the neighbors called the police

. Lorenceau described the group of men to the police using “the N word,” although only two of the men were African American, and appellant was
white

. Lorenceau told his neighbor that “it was those N words across the way,” and that the person who stabbed him was “a black man with no shir t, bald head,
and lots of tattoos.” However, Lorenceau subsequently told officers that his attacker was a bald white man with a square jaw and semi

- muscular build and
tattoos on both arms. Cisneros testified that, around 9:00 p.m. on August 2, 2011 , he was in Acuna’s apartment and heard firework s and yelling from the back of the apartment building

. Cisneros went downstairs to investigat e the commotion because he was on parole and wanted to leave if anything was happening

. Cisneros saw appellant acting “fidgety,” which was how Cisneros reason ed he would behave if he had
don e “something.” Cisneros asked appellant what happened, and appellant told him that “somebody on the other side of the wall was talking shit,” that appellant and his friends “got into it with him,” and “the dude got sta bbed.” Cisneros heard appellant say to himself, “fuck that fool,” and, “I got that fool.” Cisneros advised appellant and appellant’s step father to leave , which they did

. Lorenceau was in the hospital for six days

. Lorenceau told officers that his assailant was “bald looking, Caucasian, with tattoos . . . and pretty muscular build.” Los Angeles Police Department Detective Brand y Arzate took a six

- pack4

photographic lineup to the hospital to show Lorenceau

. Lorenceau immediately identified appellant as the assailant, “without any doubt or any hesitation.”
Lorenceau also identified appellant at trial as his a ssailant

. On August 6, 2011, Detective Arzate asked appellant’s parole agent to issue a parole warrant for

app ellant. In September 2011, Timothy Ohno , a peace officer for the State of California, was assigned to search for appellant

. On January 31, 2012, agent Ohno

was co nducting surveillance at appellant’s mother ’s apartment when a van was seen leaving the ap artment, with Hatfield driving and appellant in the passenger

seat

. Appellant and Hatfield were arrested

. Detective Arzate arrested Shadley at her apartment. Appellant and Shadley were placed in a patrol car together for transport to jail , and their c onversation while they were alone in the car was recorded

. In the course of the conversation, the following exchange occurred: “[Shadl e y]: Take it easy. Just get

– I told you that

– you should’ve listened. It is what it is. It’s too late, it’s a done deal. Should’ve listened. I told ya. Don’t cry, don’t cry. [¶] [Appellant]: You ain’t got nothing to do with it

– it’s fucked up

. . . . They bang you with this shit dude man. [Inaudible] you and Eugene

– constantly I’m fucking you guys up, man. Y ou know I’m fucked. They probably

– they want me to do life maybe. You know? ” 1 On March 2, 2012, appellant called his mother from jail

. A recording of the conversation was played for the jury and a transcript provided

. In discussing

1 The prose cutor played an excerpt of the conversation and provided a transcript of the excerpt for the jury

. The court advised the jury that the transcript was “one side’s version” of the recording

. Defense counsel subsequently played the rest of the conversation, beginning from where the prosecution stopped the recording, and provided its own transcript for the jury.5

appellant’s will ingness to plead guilty to a charge of assault with a deadly weapon, appellant made statements tending to acknowledge his guilt of the stabbing: “[Appellant]: So fuck. So they should just hurry up and drop that to a 245.
Come a t me with some deal. You know?

“ Shadley: Yeah.

“ [Appellant] : I might just take the first fucking deal. You know? Fuck, come at me with 17. Come at me with um 17 and under. I might fucking take it. You know what I’m sayin? “Shadley: Okay.

“ [Appellant] : Shit. Fuck. Sh it kills me. “Shadley: Yeah.

“ [Appellant] : Fuck shit. Yeah, but I did that shit to myself. You know? “Shadley: I know.

“ [Appellant] : Yeah stupid

– “Shadley: Yeah, I agree

.

“ [Appellant] : Huh? “Shadley: I agree.

“ [Appellant] : Yeah. Yup. Y up. Yup. People played off my emotions and I fell for it. Mhmm. Damn. They got me. That’s cool. Mhmm. Damn. Yup. But

u h

– shit. I’m hoping this goes down quick though. That way I can go wherever.
You know? ” (Italics added.)

Defense Evidence Appellant presented two witnesses whose testimony called into question whether appellant had a tattoo on his neck at the time of the stabbing.6

David Estephan testified that he owned a mortuary and that appellant’s stepfather, Hatfield, worked for him as a driver to pick up bodies

. Estephan testified that, on August 2, 2011, Hatfield picked up approximately five bodies

. Around 8:30 or 9:00 p.m. that night, Hatfield was sent to pick up a body in Tehachapi and drive it to a mortuary in Sylmar

. Estephan stated that Hatfield took appellant with him on most of his calls, but he could not remember if appellant was with Hatfield on August 2.
Hatfield testified that , on August 2, 2011, appellant accompanied him on two pick

- ups, one at 5:00 p.m. and the other around 7:30 or 8:00 p.m

. Hatfield left for Tehachapi around 8:00 p .m., dropped appellant off at appellant’ s sister’s house in Lancaster, and then continued alone to Tehachapi, returning around midnight

. Under cross

- examination, Hatfield acknow ledged that he never told Detective Arzate that he had dropped appellant off in Lancaster the night of the stabbing

. He stated that he did not know at the time because he had not checked the mortuary’s
records. Shadley testified that Detective Arzate h ad warned her she could be arrested for being an accessory after the fact if she did not reveal appellant’s whereabouts while the police were searching for him

. Shadley believed appellant was innocent and did not want “to turn [appellant] in for something he didn’t do.” Shadley also testified that, in the conversation that was recorded in the poli ce car, appellant said, “I know it was somebody,” and “It must be Tony, I think it’s Tony.” Appellant testified that Tony wa s Cisneros’ nickname. Appellant
believed that Cisneros lied to the police when he told them that appellant was at home at the time of the stabbing. Appellant testified that, on August 2, 2011, he was working with Hatfield the entire evening and was not home

. He asked Hatfield to take him to Lancaster7

on the way to Tehachapi
, and he did not return until 6:00 the following morning

. He denied stabbing Lorenceau

. According to appellant, his paro le officer had threatened to find him in violation of parole if he did not enter a transition home

. Appellant explained that he did not turn himself in to the police for questioning
because , when he had done so in the past , it resulted in his arrest for a n offense he
did not commit.

Procedural Background Appellant was charged by information with attempted murder (Pen. Code, §§ 664 / 187, subd. (a)) (count 1 ) and assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) (count 2 )

. It was further alleged as to count 1 that appellant used a deadly and dangerous weapon (Pen. Code, § 12022, subd. (b)(1) ) , and as to both counts that appellant inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a))

. The information alleged that appellant had su ffe red a prior strike (Pen. Code, §§ 667, subds. (b)

- (i), 1170.12, subds. (a)

- (d))
, had served three prior prison terms (Pen. Code, § 667.5, subd. (b)) , and had suffered a prior conviction of a serious felony (Pen. Code, § 667, subd. (a)(1))

. The jury f ound appellant guilty of both counts, found that the attempted murder was willful, deliberate and premeditated, and found true the weapon and great bodily injury enhancements

. Appellant subsequently admitted t o all the prior
conviction allegations

. Appel lant filed a motion for new trial, which the court
denied after hearing argument

. The trial court sentenced appellant to a term of 14 years to life as to count 1, plus three years for the great bodily injury enhancement and five years for the prior serious felony conviction, for a total of 22 years

. The court struck the prior prison term and deadly weapon allegations in the interest of justice

. As to count 2, the8

court imposed and stayed the sentence pursuant to Penal Code section 654

. Appe llant filed a timely notice of appeal.

DISCUSSION
I. Admissibility of Telephone Call Appellant contends that the trial court abused its discretion in admitting i nto evidence the recording of the jail telephone call between appellant and his mother.
He further contends that the admission of the telephone call violated his right to due process by rendering the trial fundamentally unfair. W e disagree

.

A. Telephone Call and the Court’s Ruling The pertinent e xcerpts of the conversation , some of which we have previously set forth, are as follows:

“ [Appellant] : Fuck this jail shit. I wanna go over to prison already. You
know? “Shadley: Mhmm.

“ [Appellant] : I’m hoping they hurry up and drop that

– . . . to a 245 already, you know? “Shadley: Yeah.

“ [Appellant] : Cause it’s 245, you know? “Shadley: Uh huh.

“ [Appellant] : It’s a 245. “Shadley: It is?

“ [Appellant] : With a GBI. You know? “Shadley: Uh huh.9

“ [Appellant] : It’s a

– it’s

– in all my paperwork, it says a 245

– cutting 245, you know? A fucking ADW, ADW, ADW

– assault with a deadly weapon, you
know? All over all my paperwork. You know? I only got a couple pieces of paperwork says attempted murder, attempted murder. You know? But everything
else is fuckin

– and that initial report is a fucking ADW, a 245. You know? “Shadley: Mhmm.

“ [Appellant] : So fuck. So they should just hurry up and drop that to a 245.
Come at me with some deal. You know? “Shadley: Yeah.

“ [Appellant] : I might just take the first fucking deal. You know? Fuck,
come at me with 17. Come at me with um 17 and under. I might fucking take it. You know what I’m sayin? “Shadley: Okay.

“ [Appellant] : Shit. Fuck. Shit kills me

. “Shadley: Yeah.

“ [Appellant] : Fuck shit. Yeah, but I did that shit to myself. You know? “Shadley: I know.

“ [Appellant] : Yeah stupid

– . . . “Shadley: I agree

.

“ [Appellant] : Yeah. Yup. Yup. Yup. People played off my emotions and I fell for it. Mhmm. Damn. They got me. That’s cool. Mhmm. Damn. Yup. But

u h

– shit. I’m hoping this goes down quick though. That way I can go wherever.
You know?

. . .

“ [Appellant] : You know I fucking hope they kill me. You know? Shit. If they don’t, then fuck. Then fuck

– more grief.

. . .10

“ [Appellant] : Yeah. You know? It should be a 245, man. I know eventually they gonna go to a 245, you know? Yep. “Shadley: That’d be good.

“ [Appellant] : With a GBI, you know? “Shadley: That’d be good.

“ [Appellant] : Yeah. They’ll probably give me like fucking

– what if it’s
like uh

– you said four years? “Shadley: Yes.

“ [Appellant] : Double up, eight

– and then they’ll give me uh, one year in priso n prior enhancement is nine

– and then they throw you up for the uh

– for the weapon, on a three year enhancement. You know, so that brings that to twelve, you know? Twelve years right there. You know? “Shadley: Okay.

“ [Appellant] : I would take that

. Because upstate, uh

– 85’s going to 60. “Shadley: Oh okay.

“ [Appellant] : 80%

– . . . is going to 60%, so I think I’ll

– you know? “Shadley: Oh.

“ [Appellant] : I’ll only gotta do is like fucking 8 years. “Shadley: Oh okay.

“ [Appellant] : Yep. Yeah, 8, 7 years. That ain’t shit. “Shadley: No, that’d be good.

“ [Appellant] : Yep. Yeah. You know, shit

– after doing that ten, seven
sounds cool. “Shadley: I hear you.11

“ [Appellant] : You know? Yeah, shit shoot it. I would like to take it all the

way. You know? And then there’s that fucking chance that jury’s not fucking uh

– not liking the way I look. You know? Get me. “Shadley: Yeah.

“ [Appellant] : Yep. I got that look

. ” (Italics added.) Appellant objected to the introduction of the telephone call . The trial court held a hearing pursuant to Evidence Code section 402. 2 Defense counsel argued that the telephone call was inadmissible because it reflec ted settlement talks

. The prosecutor argued that the call was not relevant as evidence of appellant’s willingness to accept a plea agreement but as evidence of appellant’s guilt
, point ing out that appellant never denied committing the offense during the
conversation

. The court initially expressed conc ern about the probative value of the
evidence under section 352. 3 The court not ed that appellant never admitted committing a crime during the telephone call

. I nstead , appellant only stat ed that he was “willing to take a 245,” which was a reference to Pen al Code section 245, assault with a deadly weapon

. The court reasoned that “a willingness to take a determinate sentence, when you’re looking at a life term, isn’t necessarily an
admission.”
T he trial court subsequently listened to the recording again and decide d that
it was relevant

. The court found the following statements by appellant to be

2 All unspecified statutory references are to the Evidence Code.

3 The statute provides: “ The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of con fusing the issues, or of misleading the jury. ” ( § 352.)12

relevant : “Yeah, but I did that shit to myself”; “people played off my emotions, and I fell for it. They got me”; and “It’s a 245, you know.” The court reasoned that those statements indicated appellant’s belief that his actions constituted a ssault with a deadly weapon, rather than attempted murder

. The trial court accordingly
held that those portions of the telephone call w ere admissib le and that the entire
conversation was admissible under section 356

. 4 We conclude that the trial court did not abuse its discretion in admitting the conversation.

B. Applicable Law and Discussion “‘“‘“Only relevant evidence is admissible [citations], and all relevant
evidence is admissible unless excluded under the federal or California Constitution or by statute. [Citations.] Relevant evidence is defined in Evidence Code section 210 as evidence ‘having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.’ The test of relevance is whether the evidence tends ‘“logically, naturally, and by reasonable inference” to establish material facts . . . . [Citation s .] ’ [Citation.] The trial court has broad discretion in determining the relevance of evidence . . . .”’ ” [Citation.]’ [Citation.]” ( People v. Fields (2009) 175 Cal.App.4th 1001, 1016.) “‘“‘Prejudice’ as contemplated by [Evidence Code] section 352 is not so sweeping as to inclu de any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in a section 352 context, merely because it

4 Section 356 provides: “ Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence. ”13

undermines the opponent’s position or shores up that of the proponent. The ability
to do so is what makes evide nce relevant. The code speaks in terms of undue prejudice. Unless the dangers of undue prejudice, confusion, or time consumption ‘“substantially outweigh”’ the probative value of relevant evidence, a section 352 objection should fail. [Citation.] ‘“The ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, ‘prejudicial’ is not synonymous with ‘damaging.’” [Citation.]’ [Citation.]” ( People v. Scott (2011) 52 Cal.4th 452, 490

- 491 ( Scott ) .) We review the trial court’s ruling on the admissibility of evidence for abuse of discretion. ( Id. at p. 491.) Appellant contends that the telephone conversation had no probative value because he did not admit guilt or provide any details about the crime. He further argues that his comments regarding the possibility of pleading guilty do not
indic ate that he was actually guilty, but only th at he and his mother were discussing how to “avoid a devastating verdict and sentence that they believed was
unwarranted.” We disagree. Although appellant did not expressly admit guilt, his statements, reasonably interpreted, strongly suggest that he was acknowledging his guilt of stabbing Lorenceau and blaming himself for his predicament. Thus, in complaining about his situation and discussing his willingness to plead guilty to a charge of assault with a deadly weapon for the stabbing , he acknowledge d that he was responsible and had been stupid: “Fuck shit. Yeah, but I did that shit to myself. You know?” Shadley agreed, and appellant added, “Yeah stupid

. ” Then, apparently referring to the circumstances of the argument that preceded the stabbing and being directed by others to stab Lorenceau, appellant said, “Yeah.14

Yup. Yup. Yup. People played off my emotions and I fell for it. Mhmm. Damn. They got me.” Taken as a whole, these comments tended to prove that appellant
found himself in custod y for stabbing Lorenceau, hoping for a negotiated sentence for assault with a deadly weapon, because he in fact stabbed Lorenceau (“I did that shit to myself

. . . . Yeah stupid

. . . . Yeah. Yup. Yup. Yup. People played off my emotions and I fell for it. Mhmm. Damn. They got me

. ”). Appellant relies on People v. Duarte (2000) 24 Cal.4th 603 ( Duarte ) to argue that his statements were not sufficiently inculpatory to be admitted. Duarte
considered whether a witness’s statements were admissible under the hearsay exception for declarations against penal interest. ( § 1230.) T o be admissible under this exception, the statement must be “specifically disserving to the declarant’s interests [citation]

. ” ( People v. Valdez (2012) 55 Cal.4t h 82, 144.) “‘[A] hearsay statement “which is in part inculpatory and in part exculpatory (e.g., one which admits some complicity but places the major responsibility on others) does not
meet the test of trustworthiness and is thus inadmissible.” [Citations.]’ [Citation.]” ( People v. Arauz (2012) 210 Cal.App.4th 1394, 1400.)
Duarte is inapposite. Appellant does not argue that his statements were inadmissible hearsay, and unlike in Duarte , the prosecutor here was not required to show that appellant’s statements were so specifically disserving to appellant’s penal interests as to qualify as declarations against penal interest. Rather, the inquiry here only required the trial court to determine in its discretion whether the asserted prejudice from introduction of the statements substantially outweighed their clear probative value in acknowledging appellant’s guilt. In this inquiry, the
trial court did not abuse its discretion. At trial, ap pellant sought to explain hi s incriminating statements. He
testified that t he reason he repeatedly stated, “It’s a 245,” was that the original15

charge was assault with a deadly weapon, not attempted murder

. He was concerned about the charge because the sentence for attempted murder would be greater if he was convicted

. He also explained that he stated, “Why don’t they come at me with some deal?” because he was tired of being in county jail

. He explained that he wanted to go to prison because, unlike in jail, he could shave, shower, and not worry about co nstant fighting

. Appellant further testified that his statement, “I did that shit to myself” was a reference to coming home and getting arrested

. His statement, “People played off my emotions, and I fell for it,” was a reference to his mother’s attempts to move
him into the transition home. Appellant’s testimony giving his explanations of his statements does not
detract from th e fact that, on their face, the statements reasonably suggested that he was acknowledging his guilt of stabbing Lorenceau. Indeed, his testimony describing the meaning of his words tended to lessen any asserted prejudice by presenting the jury with an alternative explanation, one the jury apparently did not credit. In short, the trial court did not abuse its discretion in admitting the
conversation.
Because we conclude that the court’s decision to admit the evidence was not an abuse of discretion, we further conclude that the admission of the evidence did

not render the trial fundamentally unfair.16

II. Prosecutorial Misconduct Appellant contends that the trial court abused its discretion in denying his motions for a mistrial and new trial based on alleged prosecutorial misconduct. 5 He argues that the pro secutor engaged in misconduct during rebuttal arg ument by accusing defense counsel of alter ing the transcript of the recording of appellant’s
conversation with his mother in the police car.

A. Disputed Comments and Court’s Ruling
Both t he prosecution and the defense provided transcripts of the recording of appellant’s conversation with his mother in the police car

. Because defense counsel played the full recording, his transcript contained the entire conve rsation

. As relevant here, defense counsel’s transcript contained the following statemen t by appellant: “They have several witness [ sic ] ( inaudible ) I wasn’t even there. He’s all, ‘Well, they said there was a group of black men and one white male. That’s how we know it’s you. They were hanging out with blacks.’” During closin g argument, defense counsel address ed appellant’s statements in the conversation with his mother in the police car

. Defense counsel argued that appellant tol d his mother , “I wasn’t even there. They said it was a black guy and one white guy and therefore it’s me.” During rebuttal argument, the prosecutor also addressed the conversation in the police car

. He argu ed, “[Defense counsel] said in that recording the defendant said at one point, ‘I wasn’t even there.’ I’m not sure if that’s what’s in the transcript that you were given, but that’s the reason why the transcript is in

5 Respondent argues that appellant has forfeited this argument by failing to address it in his brief. We disagree. Appellant addressed the argument and therefore has not forfeited it.17

evidence [ sic ]

. It’s what you heard. That transcript’s created by [defense counsel]. The transcripts I’m giving you are transcripts created by me.” Defense counsel responded, “That’s not t rue. That was paid for by the
court.” The court stated, “Well, bottom line the transcripts, as I’ve said, are
themselves

– if you hear something . . . on the audio that’s different from the transcripts, go with what you hear. The transcripts are provide d by each side as their interpretation of the words on the audio.” The court added that if the prosecutor was “saying that [defense counsel] did this himself, that would not be

accurate. That’s not in the evidence.” The prosecutor continued, “Okay. From the defense. Didn’t come from the People. That transcript came from the defense, not from the People.” Defense counsel again objected, but the court advised him that there were to be “no speaking objections.” The prosecutor added, “as [defense counsel] said in his closing that at the end of the car ride [appellant] said, ‘I wasn’t even there.’ Well
, that’s not what he said. If you actually listen to that, it says, ‘I told them I wasn’t
even there.’ And that’s wh at this has been about.”
D efense counsel asked to be heard as to his objection

. The court stated, “As I understand it, [the prosecutor] was talking about a transcript and suggesting that there was something in the audio that was not contained on the tr anscript. This is not an accusation of wrongdoing.” Defense counsel replied, “It certainly sounded like it.” The prosecutor stated that he did not intend to accuse defense counsel of wrongdoing

. The court told the jurors that, “although the lawyers the mselves may not have written [the transcripts], they are presented by each side to help you follow along. If you hear something different, go with what you hear. I’m certainly not finding that either side committed any type of misconduct in any way
with regard to the preparation of the transcripts.”18

After dismissing the jury, the court told both counsel, “ So when it comes to the issue of the transcripts, I think . . . me telling [the jury] that I have found no misconduct and [ the prosecutor] . . . sayi ng he’s not alleging any should sufficiently address that issue.” The court explained that it did not tell the jury, as requested by defense counsel, that “the transcript was prepared at the court’s direction or at least at the court’s expense,” because t he court did not ask for the transcript to be prepared

. The cour t added that it had “appointed somebody who
the defense r ecommended, and to somehow suggest that this is a court prepared document, wouldn’t be accurate either.” Defense counsel argued, “N o, but you could say that was prepared by a third party.” He argued that the prosecutor’s comment that the transcript was misleading and that the misleading part came from defense counsel directly impugned defense counsel’s integrity

. He moved for a mist rial, arguing, “To sit there and say, ‘oh, you know, this is not in the transcript, but [defense counsel] prepared it,’ I don’t see how you can interpret that in any possible way. . . . He attacked my credibility, attacked my integrity before the jury for no reason knowing way better that it was done by a third party, I had nothing to do with it. To suggest I did, even in a small way, is wrong.” The court repli ed that its admonition to the jury that there was no misconduct in the preparation of the tra nscripts was sufficient to cure any harm

. The court thus denied the motion for a mistrial

. The court subsequently denied appellant’s motion for a new trial, which was based in part on the prosecutorial

m isconduct claim

.19

B. Applicable Law and Discussion
We review the denial of a motion for mistrial under the abuse of discretion standard. ( People v. Montes (2014) 58 Cal.4th 809, 884.) “A trial court should grant a motion for mistrial ‘only when “‘a party’s chances of receiving a fair trial
ha ve been irreparably damaged’”’ [citation], that is, if it is, ‘apprised of prejudice that it judges incurable by admonition or instruction’ [citation].” ( People v. Avila (2006) 38 Cal.4th 491, 573 ( Avila ) .) “‘“We review a trial court’s ruling on a motion for a new trial under a
deferential abuse

- of

- discretion standard.” [Citations.] “‘A trial court’s ruling on a motion for new trial is so completely within that court’s discretion that a reviewing court will not disturb the ruling absent a manifest and u nmistakable abuse of that discretion.’”’ [Citation.]” ( People v. Lightsey (2012) 54 Cal.4th 668, 729.) “The standards governing review of misconduct claims are settled. ‘A prosecutor who uses deceptive or reprehensible methods to persuade the jury

comm its misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such “‘unfairness as to make the resulting conviction a denial of due process.’” [Citations.] Under state law, a prosecutor who uses such met hods commits misconduct even when those actions do not result in a fundamentally unfair trial. [Citation.] ’” ( People v. Parson (2008) 44 Cal.4th 332, 359 ( Parson ).) The trial court did not abuse its discretion in denying appellant’s motion for

a mistria l . Appellant has failed to establish that the prosecutor’s comments constituted “‘deceptive or reprehensible method s to persuade the jury’” of appellant’s guilt. ( Parson , supra , 44 Cal.4 th at p. 359.) Even if the prosecutor’s comments were improp er, appellant’s chances of receiving a fair trial were not irreparably damaged by the comments. ( Avila
, supra , 38 Cal.4th at p. 573.)20

First, the trial court repeatedly admonishe d the jury that it was to rely on the recording of the conversation, not the transcripts provided by the parties

. The jury thus was instructed to determine for itself what appellant said in the conversation. Second, the record indicates that the prosecutor’s comment regarding the

transc r ipt was in response to defense counsel’s ar gument that appellant said, “I
wasn’t even there.” When the prosecutor made the disputed comment, he referred to defense counsel’s argument and then reminded the jury that the jury was to rely on its own interpretation of the recording, not the transcript s, which were created by the parties. Third, as the trial court reasoned, the prosecutor himself stated before the jury that he did not intend to accuse defense counsel of wrongdoing in the preparation of the transcript

. In addition, t he trial court specifically told the jury,
“I ’ m certainly not finding that either side committed any type of misconduct in any way with regard to the preparation of the transcripts.” Thus, even if the prosecutor’s comment could be seen as impugning defense counsel’s in tegrity, the
court’s admonition that there was no misconduct in the preparation of the transcripts sufficiently cured any possible prejudice to appellant. We therefore conclude that appellant has not met his burden of showing a
federal constitutional viol ation by establishing that his trial was infected “‘with such “‘unfairness as to make the resulting conviction a denial of due process.’” [Citations.]’” ( Parson , supra , 44 Cal.4th at p. 359.) Even if the prosecutor’s comment did constitute misconduct, i f such misconduct does not rise to the level of a federal constitutional violation, we determine, after reviewing the totality of the evidence, if “it is reasonably probable
that a result more favorable to defendant would have occurred absent the
misconduc t. [Citations.]” ( People v. Castillo (2008) 168 Cal.App.4th 364, 386.)21

“‘Additionally, when the claim [of prosecutorial misconduct] focuses upon comments made by the prosecutor before the jury, the question is whether there is
a reasonable likelihood th at the jury construed or applied any of the complained

- of remarks in an objectionable fashion.’ [Citation.]” ( People v. Ochoa (1998) 19 Cal.4th 353, 427 ( Ochoa ).) It is not reasonably probable that a result more favorable to appellant would
have occurre d absent the alleged prosecutorial misconduct. The conversation between appellant and his mother in the police car was only one piece of evidence in the trial. Cisneros testified that appellant made incriminati ng comments after the stabbing, such as “I g ot that fool.” Lorenceau testified that he had no doubt that appellant was the person who stabbed him

. Detective Arzate similarly testified that Lorenceau immediately identified appellant as his assailant when she showed him the photographic lineup

. Nor is there a reasonable likelihood that the jury construed the complained

of remarks in an objectionable fashion. ( Ochoa
, supra , 19 Cal.4th at p. 427.) Again, the trial court admoni shed the jury that it did not find any misconduct in the preparation o f the transcripts, and the prosecutor stated in the jury’s presence that he did not intend to accuse defense counsel of wrongdoing. Appellant relies on People v. Bain (1971) 5 Cal.3d 839 ( Bain ), in which the California Supreme Court found that the prosecut or engaged in misconduct. In
Bain , the complaining witness accused the defendant of rape, but the defendant’s
version of the events was that he attempted to “pick up” the witness, and she eventually engaged in consensual sex with him. Beginning with voir dire and continuing through his closing argument, the prosecutor repeatedly stated that the defendant and his attorney had fabricated the defendant’s version of the events. The prosecutor also expressed his personal belief that the defendant was guilty,22

declaring that he would not prosecute a man whom he did not believe to be guilty. In addition, the prosecutor made “an argument based on racial prejudice and the status of the public prosecutor’s office

– a serious threat to objective deliberation by juro rs.” 6 ( Id. at p. 849.) The trial court “offered no admonition to the jurors during the entire trial, except to say that defense counsel was not ‘drumming up any stories.’” ( Id. at p. 847.) The California Supreme Court concluded that “[t]he
combination of the two elements of such misconduct

– the unsupported assertion that the defendant and his counsel fabricated the ‘pick

- up’ story and the statements of personal belief in defendant ’ s guilt, built on a racial foundation

– may well have swayed the jury in what was otherwise a close case.” ( Id. at p. 849.) This case is very different from Bain , in which the prosecutor repeatedly impugned both the defendant’s and his attorney’s credibility, expressed his personal belief that the defendant was guilty, and m ade comments based on race

. Unlike Bain , in which the prosecutor explicitly and repeatedly accused defense counsel of fabricating a story, the prosecutor here specifically disavowed accusing
defense counsel of misconduct. As discussed above, the court’s admonition, the prosecutor’s d enial that he was accusing defense counsel of misconduct, and the other evidence of appellant’s guilt lead us to conclude that appellant’s trial was not
infected with such unfairness as to render his conviction a violation of due process. ( Parson , supra , 44 Cal.4th at p. 359.)

6 The prosecutor stated several times that he believed the defendan t was guilty and “wove these statements into a tight web with comments referring to the fact that he and defendant were both black.” ( Bain , supra , 5 Cal.3d at p. 846.)23

III. Cumulative Error Appellant contends that the cumulative error rendered his trial fundamentally unfair, requiring reversal of his conviction. Because we find no error, we reject this contention.

IV

. Sufficiency of the Evidence Appellant contends that the evidence is insufficient to support his conviction for attempted first degree murder because there is insufficient evidence of premeditation and deliberation. We disagree. “The law we apply in assessing a claim of sufficiency of the evidence is well established: ‘“‘“[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial
evidence

– that is, evidence which is reason able, credible, and of solid value

– such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”’”’ [Citation.] . . . ‘We presume “‘in support of the judgment the existence of every fact the trier could reasonably de duce from the evidence.’ [Citation.]” ’” ( People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 294.) “‘Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.’ [C itation.]” ( People v. Perez (2010) 50 Cal.4th 222, 224.) “Like first degree murder, attempted first degree murder requires a finding of premeditation and deliberation.” ( People v. Villegas (2001 ) 92 Cal.App.4th 1217, 1223 .) “An intentional killing is p remeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse. [Citation.] However, the requisite reflection need not span a specific or extended period of time. ‘“‘Thoughts may fo llow each other with great rapidity24

and cold, calculated judgment may be arrived at quickly. . . .’”’ [Citation.]” ( People v. Stitely (2005) 35 Cal.4th 514, 543 .) Appellant relies on People v. Anderson (1968) 70 Cal.2d 15, 26

- 27 ( Anderson )
, which consid ered types of evidence found sufficient to sustain a verdict of premeditated and deliberate murder

. Anderson “identified three categories of evidence pertinent to the determination of premeditation and
deliberation: (1) planning activity, (2) motive, and (3) manner of killing.” ( People
v. Perez (1992) 2 Cal.4th 1117, 1125 ( Perez ) .) Appellant contends that there is insufficient evidence of these three factors to support the finding of premeditation
and deliberation.
T he California Supreme Court has subsequently explained , however, that “[t]he Anderson guidelines are descriptive, not normative. [Citation.] The goal of
Anderson was to aid reviewing courts in assessing whether the evidence is supportive of an inferen ce that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse. [Citation.] [¶] In identifying categories of evidence bearing on premeditation and deliberation, Anderson did not purport to establish an exhaustive list that would exclude all other types and combinations of evidence that could support a finding of premeditation and deliberation. [Citation.]” ( Perez , supra , 2 Cal.4th at p. 1125 ; see also People v. Gonzalez (2012) 5 4 Cal.4th 643, 663 [the Anderson factors “are not all required [citation], nor are they exclusive in describing the evidence that will support a finding of premeditation and deliberation”] .) We therefore consider
whether the evidence is sufficient “withou t belaboring the bullet points of planning, motive, and manner of killing on which

. . . Anderson focused.” ( People
v. Gunder (2007) 151 Cal.App.4th 412, 420.)25

Appellant contends that his case is similar to People v. Boatman (2013) 221 Cal.App.4th 1253 ( Boatman ) , which held that the evidence was insufficient to support the first degree murder elements of premeditation and deliberation. The
facts of Boatman are very different from those presented here.
In Boatman , the defendant shot his girlfriend while they were in a bedroom of his family’s home. There were other family members in the home at the time
, but none of them witnesse d the shooting . The defendant gave different versions of what happened, initially telling officers that his girlfriend accident ally shot herself, then stating that he accidentally shot her because he thought the gun was not loaded, and finally stating that he knew it was loaded, but she playfully pointed it at him, and he slapped it away. At trial, he testified that after she poi nted the gun at him, he took it and pointed it at her and accidentally shot her. Immediately after the shot, the defendant attempted to give her mouth

- to

- mouth resuscitation and told his brother to call the police.
The Boatman court concluded that there was no planning evidence presented

. ( Boatman , supra , 221 Cal.App.4th at p. 1267.) The court pointed out
that there was “ no evidence that defendant left the room or the house to get a gun, or that he even moved from his squatti ng position on the floor.” ( Ibid. ) The court
further reasoned that the “[d]efendant’s behavior following the shooting [was] of someone horrified and distraught about what he had done, not someone who had just fulfilled a preconceived plan,” not ing that h e tried to resuscitate his girlfriend, told his brother to call the police, and could be heard crying in the background during the 911 call . ( Ibid. ) The court conclud ed that “[t]he evidence not only fails to support an inference of a plan to kill [his gi rlfriend], but strongly suggests a lack of a plan to kill.” ( Ibid. )26

The court in Boatman also found “little or no relevant motive evidence.” ( Boatman , supra , 221 Cal.App.4th at p. 1267.) The only motive evidence was a text message from the victim to a friend, stating that she was having a fight with the defendant. The Attorney General relied on this to argue that the jury may have inferred that the defendant was “‘in a bad mood after being released from custody and he was angry with [his girlfriend]. ’” ( Id. at pp. 1267

- 1268.)
This case is unlike Boatman , in which there was no evidence “that defendant had given any thought or consideration to killing [his girlfriend].” ( Boatman , supra , 221 Cal.App.4th at p. 1271.) Instead, there was sufficient evidence to
establish that appellant had a motive for attacking Lorenceau and had time to premeditate and deliberate before running through the parking lot to attack him.
T he evidence shows that appellant and other people were invo lved in an argument with Lorenceau in which they repeatedly urged Lorenceau t o come over the fence to fight with them
, thus establishing a motive

. A fter someone gestured to

a ppellant , he ran through a parking lot to the fence, jumped up and repeatedly

sta bbed Lorenceau in the chest

. Appellant thus was armed with a weapon, and he had time during the argument with Lorenceau to consider whether he would attack Lorenceau. He responded to someone’s gesture to attack Lorencea u, then took the time to run throug h the parking lot toward the fence

. Because Lorenceau was standing on a wall to look over the fence, appellant needed to jump i n order to reach Lorenceau, and he jumped not once but twice, stabbing him in the chest both
times

. All of these actions suppor t the finding of premeditation and deliberation. (See Boatman , supra , 221 Cal.App.4th at p. 1271 [distinguishing People v. Harris (2008) 43 Cal.4th 1269, which found deliberation and premeditation because the defendant’s decision to walk from a donut shop service window to the door, where he killed the victim, implied that “he made the decision to kill while he was at the27

service wi ndow and then considered the decision as he walked to the door to commit the murder”].)
“‘“‘Premeditation and deliberation can occur in a brief interval. “ The test is not time, but reflection. ‘ Thoughts may follow each other with great rapidity and
cold , calculated judgment may be arrived at quickly. ’ ”’ [Citation.]”’” ( People v. Mendoza (2011) 52 Cal.4th 1056, 1069.) Engaging in an arg ument with someone, running toward him through a parking lot , and jumping twice to stab him in the
chest is sufficient evidence of premeditation and deliberation “from which a rational trier of fact could find [appellant] guilty beyond a reasonable doubt.” ( Ibid. )

DISPOSITION

The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P. J.

We concur:

MANELLA, J. EDMON, J.*

*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.