Filed 8/22/14 P. v. Medeiros CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY 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 Attorneys General, for Plaintiff and 

Respondent.
2

A jury convicted appellant Anthony Joseph Medeiros 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, appellant 

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 motion for a new trial based on alleged prosecutorial misconduct; 

and (3) there 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, Mathew 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 

parking 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 the 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 shirt, 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 fireworks and yelling from the back of the apartment 

building. Cisneros went downstairs to investigate the commotion because he was 

on parole and wanted to leave if anything was happening. Cisneros saw appellant 

acting “fidgety,” which was how Cisneros reasoned he would behave if he had 

done “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 stabbed.” Cisneros heard 

appellant say to himself, “fuck that fool,” and, “I got that fool.” Cisneros advised 

appellant and appellant’s stepfather 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 Brandy Arzate took a six-pack 
4

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 assailant. On August 6, 2011, 

Detective Arzate asked appellant’s parole agent to issue a parole warrant for 

appellant. 

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 conducting surveillance at appellant’s mother’s apartment when a van was 

seen leaving the apartment, 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 conversation while they were alone in the car was recorded. In the 

course of the conversation, the following exchange occurred: “[Shadley]: 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. You 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 prosecutor 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 willingness 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 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: Yeah, I agree.

“[Appellant]: Huh?

“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 

uh – 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 acknowledged 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 had 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 

police car, appellant said, “I know it was somebody,” and “It must be Tony, I think 

it’s Tony.” Appellant testified that Tony was 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 Lancaster 
7

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

He denied stabbing Lorenceau. According to appellant, his parole 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 an 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 suffered 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 found 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 to all the prior 

conviction allegations. Appellant 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, the 
8

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

Appellant filed a timely notice of appeal. 

DISCUSSION

I. Admissibility of Telephone Call

Appellant contends that the trial court abused its discretion in admitting into 

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. We disagree.

A. Telephone Call and the Court’s Ruling

The pertinent excerpts 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 

uh – 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 

prison 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 reflected 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, 

pointing out that appellant never denied committing the offense during the 

conversation. 

The court initially expressed concern about the probative value of the 

evidence under section 352.3 The court noted that appellant never admitted 

committing a crime during the telephone call. Instead, appellant only stated that he 

was “willing to take a 245,” which was a reference to Penal 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.”

The trial court subsequently listened to the recording again and decided 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 confusing 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 assault 

with a deadly weapon, rather than attempted murder. The trial court accordingly 

held that those portions of the telephone call were admissible 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 . . . . [Citations.]’ [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 include 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 evidence 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 

indicate that he was actually guilty, but only that 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 acknowledged 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 custody 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.) To be admissible under 

this exception, the statement must be “specifically disserving to the declarant’s 

interests [citation].” (People v. Valdez (2012) 55 Cal.4th 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, appellant sought to explain his incriminating statements. He 

testified that the reason he repeatedly stated, “It’s a 245,” was that the original 
15

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 constant 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 the 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 prosecutor engaged in misconduct during rebuttal argument by 

accusing defense counsel of altering the transcript of the recording of appellant’s 

conversation with his mother in the police car. 

A. Disputed Comments and Court’s Ruling

Both the 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 conversation. 

As relevant here, defense counsel’s transcript contained the following statement 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 closing argument, defense counsel addressed appellant’s statements 

in the conversation with his mother in the police car. Defense counsel argued that 

appellant told 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 argued, “[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 true. 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 provided 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 what this has been about.” 

Defense 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 transcript. 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 themselves 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] . . . saying 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 the court did not ask for the 

transcript to be prepared. The court added that it had “appointed somebody who 

the defense recommended, and to somehow suggest that this is a court prepared 

document, wouldn’t be accurate either.” 

Defense counsel argued, “No, 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 mistrial, 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 replied that its admonition to the jury that there was no 

misconduct in the preparation of the transcripts 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 

misconduct 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 

have 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 unmistakable 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 

commits 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 methods 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 mistrial. Appellant has failed to establish that the prosecutor’s comments 

constituted “‘deceptive or reprehensible methods to persuade the jury’” of 

appellant’s guilt. (Parson, supra, 44 Cal.4th at p. 359.) Even if the prosecutor’s 

comments were improper, 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 admonished 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 

transcript was in response to defense counsel’s argument 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 transcripts, 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, the 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 integrity, 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 violation 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, if 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 

misconduct. [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 that 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 occurred 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 incriminating comments after 

the stabbing, such as “I got 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 complainedof remarks in an objectionable fashion. (Ochoa, supra, 19 Cal.4th at p. 427.) 

Again, the trial court admonished the jury that it did not find any misconduct in the 

preparation of 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 prosecutor 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 jurors.”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 made 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 denial 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 defendant 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 reasonable, 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 deduce 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.’ 

[Citation.]” (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 premeditated 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 follow each other with great rapidity 
24

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 considered 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.

The 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 inference 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) 54 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 “without 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 witnessed the shooting. The defendant gave different versions of 

what happened, initially telling officers that his girlfriend accidentally 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 pointed 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 squatting 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,” noting that he 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 concluded that “[t]he evidence not only fails 

to support an inference of a plan to kill [his girlfriend], 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. 

The evidence shows that appellant and other people were involved in an 

argument with Lorenceau in which they repeatedly urged Lorenceau to come over 

the fence to fight with them, thus establishing a motive. After someone gestured to 

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

stabbed 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 Lorenceau, then took the 

time to run through the parking lot toward the fence. Because Lorenceau was 

standing on a wall to look over the fence, appellant needed to jump in order to 

reach Lorenceau, and he jumped not once but twice, stabbing him in the chest both 

times. All of these actions support 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 the 
27

service window 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 argument 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.