Filed 3/9/16 P. v. Jenkins CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES DEAN JENKINS,

Defendant and Appellant.

F069275

(Super. Ct. No. 13CM2857)

OPINION

APPEAL from a judgment of the Superior Court of Kings County. Donna L. 

Tarter, Judge.

John Hardesty, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and 

Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

INTRODUCTION

Defendant James Dean Jenkins challenges his conviction for attempted 

premeditated murder of a peace officer. The events giving rise to the multiple charges 

against him arose from a traffic stop and subsequent high-speed vehicle pursuit on the 

night of June 3, 2013. Defendant was charged with five felony counts: attempted 

premeditated murder of a peace officer in violation of Penal Code sections 664, 

subdivisions (e) and (f), and 187, subdivision (a), (count 1); two counts of assault with a 

deadly weapon on a peace officer in violation of Penal Code section 245, subdivision (c), 

(counts 2 and 3); one count of operating a motor vehicle with willful or wanton disregard 

for the safety of persons while fleeing from a pursuing police officer in violation of 

Vehicle Code section 2800.2, subdivision (a), (count 4); and one count of willfully 

operating a motor vehicle in a direction opposite to lawful traffic during flight from a 

pursuing peace officer in violation of Vehicle Code section 2800.4 (count 5). Defendant 

was also charged with six misdemeanors and one infraction (counts 6 through 12). As to 

counts 1 through 5, the information alleged that defendant suffered three prison priors 

pursuant to Penal Code section 667.5, subdivision (b); and as to counts 7 through 9, the 

information alleged that he suffered a prior conviction for driving with a suspended 

license in violation of Vehicle Code section 14601.1. The amended information alleged a 

prior serious felony pursuant to the three strikes law (Pen. Code, §§ 667, subds. (b)–(i), 

1170.12, subds. (a)–(d)) as to counts 1 through 5.

The trial court granted the prosecution’s motion to dismiss counts 8 and 9, and the 

parties agreed the trial court would decide count 12, the infraction. The jury convicted 

defendant of counts 1 through 7, 10, and 11. In a bifurcated proceeding, defendant 

waived jury trial on the prior allegations, and the trial court found the three prison term 

enhancements true and the prior strike conviction not true. Defendant was sentenced to 

an indeterminate sentence of 15 years to life on count 1. The court imposed consecutive 

sentences of five years (upper term) on count 3, and eight months on each of counts 4 and 
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5 (one-third of two-year midterm), for a total of six years four months. Defendant 

received credit for time served on counts 6, 7, and 10. The sentences for counts 2 and 11 

were stayed pursuant to Penal Code section 654, and he was fined $100 for count 12 (the 

infraction). He was also sentenced to one additional year for each prison prior, resulting 

in a total aggregate determinate sentence of nine years four months.

On appeal, defendant argues there was insufficient evidence to support his 

conviction for attempted premediated murder (count 1) and the prosecutor committed 

misconduct by misstating the law as well as introducing facts not in evidence.

We affirm the judgment.

FACTUAL SUMMARY

Through testimony by the two deputies involved, the People presented the 

following evidence concerning the traffic stop and subsequent vehicle pursuit.1 On 

June 3, 2013, at approximately 9:00 p.m., Kings County Sheriff’s Deputy Cole Souza 

was on assigned patrol in the area of Kansas Avenue and State Route 43, a rural area. 

Souza was in uniform and driving a marked patrol car with overhead lights. Following 

his completion of a traffic stop involving another vehicle, Souza pulled up behind a 1975 

Ford Maverick stopped at a red stoplight on Kansas Avenue. Souza noticed the vehicle’s 

registration tags were expired and he ran the plate through the county dispatch center, 

which confirmed the registration for that vehicle was expired. When the light changed 

from red to green, Souza activated his overhead emergency lights to initiate a traffic stop. 

The vehicle yielded and pulled over on the shoulder. Souza exited his patrol car, 

approached the driver’s side window, identified himself as a deputy sheriff, stated he 

stopped the driver for expired registration, and asked for the driver’s license, proof of 

insurance and registration. Defendant stated he had just purchased the vehicle, he did not 

yet have insurance, and he did not have his driver’s license on him but he had one, 

 

1 Defendant elected not to testify at trial. His witnesses were his wife, Laurie Jenkins, who 

testified as an alibi witness, and Deputy Souza.
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although he believed it was expired. Defendant provided a name of James G. Buchholtz 

and a birthdate of April 29, 1968. Souza returned to his patrol car and ran the 

information, which did not match a driver’s license. Souza returned to the Maverick and 

informed defendant he did not believe he was being truthful. Defendant hung his head, 

admitted to giving Souza a false name, and said he might have a misdemeanor warrant 

out of Tulare County. Souza told defendant that misdemeanor warrants did not 

necessarily require being jailed and due to jail overcrowding, “a lot of times” he was able 

to issue just a ticket and a new court date. Defendant then told Souza his name was 

James Dean Jenkins and his birthdate was April 29, 1969, and he provided a driver’s 

license number from memory. Remaining by the driver’s side window, Souza relayed 

the information to the dispatcher and was informed there were two warrants out for 

defendant’s arrest, one of which was a no bail warrant.

Souza ordered defendant to step out of the car. Defendant did not comply and 

asked if he was being taken in. Souza informed him he was under arrest and going to jail. 

Souza again ordered him to get out of the car. Defendant began revving the motor at a 

very high RPM while looking Souza directly in the eyes. Defendant ignored Souza’s 

repeated commands to shut off the car and get out, and repeatedly revved the motor. 

Souza then attempted to pull defendant from the vehicle through the driver’s side window 

by grabbing his left arm with both hands. However, defendant moved toward the center 

of the car and began to reach under the seat with his right hand. In Souza’s experience, it 

is very common for people to keep firearms under the seat and, fearing defendant might 

be reaching for a gun, he took one or two steps back from the vehicle and withdrew his 

firearm from its holster. Souza yelled at defendant that he was under arrest, and to shut 

off the car and get out. With the motor still revved up to a high RPM, defendant took off, 

the wheels of his car burning out and kicking up a lot of dust and debris. Defendant 

made a U-turn in the road and headed in the opposite direction. Souza holstered his 

weapon, radioed dispatch, and began pursuing the car with his lights flashing. At that 
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point, approximately five minutes had elapsed since Souza first pulled defendant’s car

over.

Kansas Avenue was a rural, undivided two-lane road with a speed limit of 

55 miles per hour. It was dark at 9:00 p.m. and there were few street lights in the area. 

After defendant took off with Souza in pursuit, they reached speeds between 90 and 100 

miles per hour. Two or three times, defendant turned off his vehicle’s lights, leaving the 

car completely dark and undetectable to passing motorists, and crossed over into the 

oncoming traffic lane. On two or three occasions, oncoming vehicles were forced to 

make sudden turns and leave the roadway to avoid being hit head-on by defendant. One 

incident involved a Jeep Grand Cherokee and another incident involved a big rig truck, 

which fishtailed and went off the road when the driver had to lock up his brakes suddenly 

to avoid defendant, who was traveling with his headlights off at the time. Defendant 

subsequently turned on Road 28. The speed limit remained at 55 miles per hour, and the 

pursuit continued at between 90 and 100 miles per hour. Approximately one-half mile 

along Road 28, defendant slammed on his brakes for no apparent reason, causing Souza 

to have to lock up his brakes to avoid colliding with the rear of defendant’s car. The 

chase then continued down a dry, dusty farming access road. Defendant’s vehicle was 

kicking up so much dust that Souza could not see the front of his car. At that point, 

Souza turned off his flashing lights and siren and proceeded at a slow pace. Souza caught 

up to the Maverick again when it turned on Road 36, and he picked up the pursuit and 

notified dispatch.

Defendant and Souza continued to travel at speeds averaging between 80 and 

90 miles per hour. Defendant repeatedly turned his lights on and off and drove in and out 

of his traffic lane. After defendant turned on Avenue 248, he drove onto a residential 

property with a dirt driveway. Defendant continued toward a shop area on the property 

and began spinning “brodies” in the dirt, kicking up so much dust that Souza could not 

see anything. Periodically, Souza could see defendant’s headlights and taillights through 
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the dust, followed by loss of visibility due to thick dust in the air. Souza cracked his 

window and could hear defendant revving the motor. During one of the revolutions, 

defendant’s car came within a few feet of hitting Souza’s patrol car. Defendant 

eventually made his way back onto the roadway, with Souza following behind once he 

realized defendant had left the residential property.

Kings County Sheriff’s Deputy W. Brabant, Jr., was also on duty that night, 

patrolling an area approximately eight miles from Souza’s pursuit of defendant. At 

9:35 p.m., he headed toward Souza’s location to assist with the pursuit. Brabant was also 

in a marked patrol car, and the flashing lights and siren were activated. He was traveling 

at approximately 80 miles per hour when he caught sight of a silhouette in the dark. 

Once his headlights caught the silhouette, he saw it was a vehicle traveling toward him. 

When the unlit vehicle was approximately 100 to 150 yards away from him, the driver 

switched on the headlights and swerved into Brabant’s traffic lane, coming toward him 

head-on. Brabant reflexively jerked the steering wheel to the right and his patrol car went 

onto the shoulder of the road. Brabant lost some control of the car due to the loose dirt 

on the shoulder and he saw he was heading directly for a power pole. Brabant “whipped 

the wheel” back to the left to regain control. Defendant’s vehicle remained on the wrong 

side of the road in Brabant’s lane. Brabant did not observe brake lights and he heard the 

vehicle continue to accelerate away, building speed.

After Brabant was back on the roadway, he was the first vehicle in pursuit of 

defendant, with Souza following behind.2 Brabant could see a 1970’s model Ford 

Maverick, subsequently identified as defendant’s, ahead of him traveling at 

approximately 100 miles per hour. Souza and Brabant continued pursuing defendant at 

speeds between 60 and 70 miles per hour. Defendant continued to turn his lights on and 

 

2 Brabant was a K-9 handler, and K-9 units generally take the first position in a vehicle 

pursuit, in the event the dog is needed to apprehend a fleeing driver.
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off and cross over into the oncoming traffic lane. After turning on yet another road, 

defendant ran a stop sign in excess of 100 miles per hour. Defendant then turned on 

another dirt road and kicked up so much thick dust that Souza and Brabant were forced to 

discontinue the pursuit. It was approximately 10:00 p.m. when they discontinued their 

pursuit of defendant. Souza, Brabant, and other law enforcement officers subsequently 

canvassed the area for defendant, without success.

When Souza returned to the substation that night, he pulled up the DMV photo on 

the computer using the information defendant had provided during the traffic stop. The 

photo for James Dean Jenkins matched the driver he had been pursuing in the Maverick. 

Several hours later, Souza was notified by a Tulare County Police Department sergeant

that defendant’s vehicle had been located behind a Walmart in Tulare.

DISCUSSION

I. Sufficiency of the Evidence

Defendant was convicted of the willful, deliberate, and premediated attempted 

murder of Deputy Brabant (count 1). As to this count, he argues that the evidence was 

insufficient to support the jury’s findings of either intent to kill or deliberation and 

premeditation.

A. Standard of Review

On appeal, the relevant inquiry governing a challenge to the sufficiency of the 

evidence “‘is whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.’ [Citation.]” (People v. Nguyen (2015) 61 Cal.4th 1015, 

1055.) “The record must disclose substantial evidence to support the verdict—i.e., 

evidence that is reasonable, credible, and of solid value—such that a reasonable trier of 

fact could find the defendant guilty beyond a reasonable doubt. [Citation.]” (People v. 

Zamudio (2008) 43 Cal.4th 327, 357.) “In applying this test, we review the evidence in 

the light most favorable to the prosecution and presume in support of the judgment the 
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existence of every fact the jury could reasonably have deduced from the evidence. 

[Citation.]” (Ibid.) “‘[I]t is the jury, not the appellate court which must be convinced of 

the defendant’s guilt ....’ [Citation.]” (People v. Nguyen, supra, at pp. 1055–1056.) “A 

reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no 

hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s 

verdict. [Citation.]” (People v. Zamudio, supra, at p. 357.)

B. Specific Intent to Kill

Unlike murder, “attempted murder is not divided into degrees, but the sentence

can be enhanced if the attempt to kill was committed with premeditation and deliberation. 

[Citation.]” (People v. Gonzalez (2012) 54 Cal.4th 643, 654.) Attempted murder 

requires specific intent to kill, or express malice, “‘and the commission of a direct but 

ineffectual act toward accomplishing the intended killing.’ [Citations.]” (People v. Smith

(2005) 37 Cal.4th 733, 739.) Express malice is shown when the defendant “‘either 

desires the victim’s death, or knows to a substantial certainty that the victim’s death will 

occur.’ [Citation.]” (People v. Houston (2012) 54 Cal.4th 1186, 1217.) “[E]vidence of 

motive is often probative of intent to kill,” but it “is not required to establish intent to 

kill.” (People v. Smith, supra, at p. 741.) Intent “may in many cases be inferred from the 

defendant’s acts and the circumstances of the crime.” (Ibid.)

Deputy Brabant testified that he was driving along a rural two-lane road at 

approximately 80 miles an hour with his patrol car emergency lights and siren activated. 

It was nighttime and the area was completely dark. Brabant caught sight of a silhouette 

in the road, and a vehicle’s headlights then turned on and it crossed over into Brabant’s 

lane, moving straight toward him, head-on and at high speed. Brabant reflexively yanked 

the wheel to the right, avoiding a collision.

The jury could have reasonably inferred from the events that defendant was in full 

control of his vehicle, was well aware Brabant was approaching at a high speed, and 

intentionally concealed his vehicle’s visibility by keeping the lights off until Brabant was 
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approximately 100 to 150 yards away, at which time he changed lanes and aimed directly 

for Brabant’s rapidly approaching car. Further, given these actions and the high speed 

involved, the jury could have reasonably inferred that defendant desired to kill Brabant, 

or knew to a substantial certainly that Brabant’s death would occur. That Brabant “may 

have escaped death” in a head-on collision by virtue of his reflexive reaction in jerking 

his steering wheel to the right does not “necessarily establish a less culpable state of 

mind.” (People v. Lashley (1991) 1 Cal.App.4th 938, 945.) Even if these facts might be 

reconcilable with a contrary finding, as defendant argues, that is not grounds for reversal. 

(People v. Booker (2011) 51 Cal.4th 141, 172). There was sufficient evidence to support 

defendant’s conviction for attempted murder, and the jury’s finding is affirmed.

C. Deliberation and Premeditation

Defendant next argues there was insufficient evidence to support the enhancement 

for deliberate, premediated attempted murder of a peace officer. More than a specific 

intent to kill is required to support a finding of deliberation and premeditation. (People v. 

Koontz (2002) 27 Cal.4th 1041, 1080.) “‘Deliberation’ refers to careful weighing of 

considerations in forming a course of action; ‘premeditation’ means thought over in 

advance. [Citations.]” (Ibid.) “‘The process of premeditation and deliberation does not 

require any extended period of time. “The true test is not the duration of time as much as 

it is the extent of the reflection. Thoughts may follow each other with great rapidity and 

cold, calculated judgment may be arrived at quickly....” [Citations.]’ [Citation.]” (Ibid.)

“In People v. Anderson (1968) 70 Cal.2d 15, 26–27, [the Supreme Court] 

reviewed earlier decisions and developed guidelines to aid reviewing courts in assessing 

the sufficiency of evidence to sustain findings of premeditation and deliberation. 

[Citation.] [The court] described three categories of evidence recurring in those cases: 

planning, motive, and manner of killing. [Citations.]” (People v. Halvorsen (2007) 42 

Cal.4th 379, 419–420.) “[H]owever, ‘[u]nreflective reliance on Anderson for a definition 

of premeditation is inappropriate.’” (People v. Koontz, supra, 27 Cal.4th at p. 1081.) 
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The “guidelines are descriptive and neither normative nor exhaustive, and ... reviewing 

courts need not accord them any particular weight. [Citation.]” (People v. Halvorsen, 

supra, at p. 420.)

Here, defendant’s actions toward Deputy Brabant occurred approximately 

30 minutes after he fled the scene of the traffic stop and during the course of a high-speed 

pursuit that lasted approximately one hour. Prior to changing lanes and speeding directly 

toward Brabant, defendant had repeatedly turned his headlights off and on, changed lanes 

into the oncoming traffic lane, and caused two vehicles to swerve to avoid being hit by 

him head-on. Given the extended passage of time that occurred prior to encountering 

Brabant and defendant’s engagement in similar conduct during that time period, there 

was sufficient evidence from which a reasonable jury could have concluded that 

defendant reflected on his options and determined he would evade capture even at the 

cost of life, including his own. This demonstrates planning.

Evidence of motive is also present. Defendant thought he might have a warrant 

out for his arrest and, immediately prior to his flight from Deputy Souza, he had been told 

to get out of the car because he was under arrest. The ensuing high speed chase resulted 

from defendant’s determination to avoid arrest, and, contrary to his argument, it is 

immaterial that he did not know Brabant personally or know the identity of the patrol 

car’s driver. (See People v. Stone (2009) 46 Cal.4th 131, 139.) Given the dark 

conditions and the approaching patrol car’s flashing emergency lights and wailing siren, 

defendant knew the car coming toward him was a law enforcement vehicle, supporting a 

reasonable inference that defendant’s actions in changing lanes and driving directly 

toward the car at high speed were motivated by his determination to avoid apprehension.

In sum, although the Anderson factors “‘are not a sine qua non ... nor are they 

exclusive’” (People v. Koontz, supra, 27 Cal.4th at p. 1081), we nonetheless reject 
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defendant’s argument that there was insufficient evidence as to any of the factors.3 To 

the contrary, there was evidence of planning (factor 1) and motive (factor 2) from which 

a reasonable jury could have concluded that defendant’s action toward Brabant “‘was the 

result of “a preexisting reflection” and “careful thought and weighing of considerations” 

rather than “mere unconsidered or rash impulse hastily executed” [citation] ....’” (People 

v. Koontz, supra, at p. 1081.) “[A] killing resulting from preexisting reflection, of any 

duration, is readily distinguishable from a killing based on unconsidered or rash 

impulse.” (People v. Solomon (2010) 49 Cal.4th 792, 813.) Here, evidence of the 

timeline of the events and the specific actions taken by defendant is sufficient to support 

the jury’s finding of willful, deliberate, and premeditated attempted murder, and the 

finding is affirmed.

II. Prosecutorial Misconduct

Defendant also argues on appeal that the prosecutor committed misconduct by 

misstating the law and introducing facts not in evidence during closing argument, in 

violation of his federal right to due process and right to a fair trial.

A. Standard of Review

“‘When a prosecutor’s intemperate behavior is sufficiently egregious that it infects 

the trial with such a degree of unfairness as to render the subsequent conviction a denial 

of due process, the federal Constitution is violated. Prosecutorial misconduct that falls 

short of rendering the trial fundamentally unfair may still constitute misconduct under 

state law if it involves the use of deceptive or reprehensible methods to persuade the trial 

court or the jury.’ [Citation.]” (People v. Jablonski (2006) 37 Cal.4th 774, 835.) “When 

attacking the prosecutor’s remarks to the jury, the defendant must show that, ‘[i]n the 

context of the whole argument and the instructions’ [citation], there was ‘a reasonable 

 

3 Respondent concedes the inapplicability of factor 3, manner of killing. We agree the 

facts do not evidence “a manner of killing that reflects a preconceived design to kill.” (People v. 

Gonzalez, supra, 54 Cal.4th at pp. 663–664.)
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likelihood the jury understood or applied the complained-of comments in an improper or 

erroneous manner. [Citations.] In conducting this inquiry, we “do not lightly infer” that 

the jury drew the most damaging rather than the least damaging meaning from the 

prosecutor's statements. [Citation.]’ [Citations.]” (People v. Centeno (2014) 60 Cal.4th 

659, 667.)

“‘As a general rule a defendant may not complain on appeal of prosecutorial 

misconduct unless in a timely fashion—and on the same ground—the defendant made an 

assignment of misconduct and requested that the jury be admonished to disregard the 

impropriety.’ [Citation.]” (People v. Maciel (2013) 57 Cal.4th 482, 541.) “[O]nly if an 

admonition would not have cured the harm is the misconduct claim preserved for review. 

[Citation.]” (People v. Cook (2006) 39 Cal.4th 566, 606.) However, “‘[a] defendant 

whose counsel did not object at trial to alleged prosecutorial misconduct can argue on 

appeal that counsel’s inaction violated the defendant’s constitutional right to the effective 

assistance of counsel.’ [Citation.]” (People v. Centeno, supra, 60 Cal.4th at p. 674.)

In this case, trial counsel failed to object to the prosecutor’s statements during 

trial, and respondent argues that defendant forfeited his prosecutorial misconduct claims 

on appeal as a result. Recognizing this, defendant seeks to excuse trial counsel’s failure 

to object on the ground of ineffective assistance of counsel. However, the forfeiture issue 

aside, the prosecutor’s statements did not constitute error. It is therefore unnecessary for 

the court to determine whether defendant’s prosecutorial misconduct claims are forfeited 

or whether trial counsel’s failure to object to the prosecutor’s statements constituted 

ineffective assistance of counsel.

B. Analysis

1. Misstatement of Law

Defendant argues that the prosecutor conflated the nonexistent crime of seconddegree attempted murder with the attempted murder charge in count 1 when she told “the 

jury that [defendant] committed attempted premeditated murder by intentional acts that 
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placed Brabant and his K-9 partner ‘in danger’ due to the possibility of a head-on 

collision at high speeds from which ‘it’s reasonable to believe someone’s going to die or 

at least get severely injured.’” In response, respondent asserts that defendant’s “real 

complaint is that the prosecutor was arguing the facts in such a way that they could 

support a lesser degree [attempted] murder charge,” and “[e]ven assuming for the sake of 

argument that the prosecutor’s argument to the jury demonstrated that the facts would 

support a second degree [attempted] murder conviction, the prosecutor properly argued 

that the evidence supported attempted first degree murder and at no time misstated the 

law.”

We find no prosecutorial error. Prior to the remark at issue, the prosecutor told the 

jury they were required to follow the law as instructed by the judge and she reiterated the 

People’s burden of showing “defendant took at least one direct but ineffective step 

toward killing another person, and ... defendant intended to kill that person.” The jury 

had been instructed by the trial court as to count 1 and no instructional errors are asserted 

on appeal. Further, in their closing arguments, the prosecutor and trial counsel both 

addressed the need for defendant to have possessed specific intent to kill to support a 

guilty finding on count 1; and specific intent was addressed by the prosecutor in her 

closing argument both before and after the statement at issue. Under these 

circumstances, we reject defendant’s argument that the statement rose to the level of 

prosecutorial error. At worst, the statement amounted to poor word choice, and there is 

simply no merit to an argument that the statement “infect[ed] the trial with unfairness” or 

“involve[d] the use of deceptive or reprehensible methods of persuasion. [Citation.]”4 

(People v. Booker, supra, 51 Cal.4th at p. 184.)

 

4 Moreover, even if we were to assume prosecutorial error, there was no prejudice. (See

People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 429.)
14.

2. Introduction of Facts Not in Evidence

Defendant also argues that the prosecutor introduced facts not in evidence when, 

in her rebuttal argument, she stated to the jury, “[W]hen one is ‘trying to play chicken’ on 

the highway, you eventually brake when you get too close to the person or you move 

over. That’s not what happened.” Respondent contends that the prosecutor’s statement 

was made in direct response to an argument made by defendant’s counsel during his 

closing argument and was not an introduction of facts not in evidence.

Referring to facts not in evidence is misconduct. (People v. Hill (1998) 17 Cal.4th 

800, 827–828). Further, “[a]lthough prosecutors have wide latitude to draw inferences 

from the evidence presented at trial, mischaracterizing the evidence is misconduct. 

[Citations.]” (Id. at p. 823.) Neither occurred.

The prosecutor’s remark regarding “trying to play chicken” did not refer to facts 

not in evidence but instead was a comment responsive to trial counsel’s characterization 

of the evidence relating to count 1. During defendant’s closing argument, trial counsel 

stated, “I come over, I’m going to try to have a head-on collision with him? That’s my 

intent? No. He’s going to get out of my way. That’s what I’m trying to do, I’m trying to 

get away, I’m not trying to crash. He’s going to get out of the way. He’s not going to 

head-on with me anymore than I want to head-on with him. [¶] I want him to get out of 

my way and I want to get on my way. He’s going to hit his brakes, he’s going to pull 

over and I’m going to sail on by....” We agree with respondent that the prosecutor 

merely affixed a label to trial counsel’s characterization of defendant’s actions and, in 

doing so, the prosecutor used a commonly known term for such actions. The attachment 

of this label to trial counsel’s description of events was neither an introduction of facts 

not in evidence nor a mischaracterization of the evidence. Thus, no prosecutorial error 

occurred.
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DISPOSITION

The judgment is affirmed.

_____________________

KANE, Acting P.J.

WE CONCUR:

_____________________

FRANSON, J.

_____________________

SMITH, J.