People v. Boatman , 165 Cal. Rptr. 3d 521 ( 2013 )


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  • Filed 12/4/13
    CERTIFIED FOR PARTIAL PUBLICATION*
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FOURTH APPELLATE DISTRICT
    DIVISION TWO
    THE PEOPLE,
    Plaintiff and Respondent,                    E054852
    v.                                                   (Super.Ct.No. RIF10001458)
    BENJAMIN JAMES BOATMAN,                              OPINION
    Defendant and Appellant.
    APPEAL from the Superior Court of Riverside County. Elisabeth Sichel, Judge.
    Affirmed with directions.
    Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and
    Appellant.
    Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
    General, Julie L. Garland, Assistant Attorney General, and Peter Quon, Jr. and Anthony
    Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
    *Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
    certified for publication with the exception of part III B. through H.
    1
    I. INTRODUCTION
    Defendant and appellant, Benjamin James Boatman, shot his girlfriend, Rebecca
    Marth, in the face, killing her. Defendant said the shooting was an accident. At trial, he
    argued that although he was criminally negligent, he did not commit murder. A jury
    convicted him of first degree murder (Pen. Code, § 187 subd. (a))1 and possession of
    marijuana for sale (Health and Saf. Code, § 11359). The jury also found true two
    enhancement allegations that defendant personally and intentionally discharged a firearm
    that caused great bodily injury or death (Pen. Code, § 12022.53, subd. (d)) and the
    offenses were committed while defendant was released from custody pending trial on
    another felony offense (Pen. Code, § 12022.1).
    Defendant was sentenced to an indeterminate term of 25 years to life on the
    murder conviction plus an additional 25 years to life for the firearm enhancement. In
    addition, the court sentenced defendant to a determinate term of three years on the
    possession of marijuana conviction to be served concurrent to the indeterminate sentence.
    The court imposed, and did not stay, a two-year consecutive term for the on-bail
    enhancement.
    In the published portion of our opinion, we address defendant’s contention that the
    evidence is insufficient to support the conviction for first degree murder. Because we
    conclude that there is substantial evidence that defendant committed murder, but
    1   All further statutory references are to the Penal Code unless otherwise indicated.
    2
    insufficient evidence to support the first degree murder elements of premeditation and
    deliberation, we will reduce the murder conviction to second degree murder. We will
    address other contentions in the unpublished portion of the opinion.
    II. SUMMARY OF FACTS
    At approximately 3:30 a.m. on March 18, 2010, defendant was released from jail
    on bail. He walked home, where he lived with his father (Jim), a sister (Hanna), an older
    brother (Brandon), and a younger brother (Brenton).2 Brandon’s girlfriend, Victoria
    Williams, was also staying there at that time.
    After talking with Brenton for awhile, defendant and Brenton drove to Marth’s
    house, picked her up, and returned home. Defendant had been dating Marth for about
    one year and, he testified, was in love with her. However, defendant also had an ex-
    fiancée and was conflicted about whom he wanted to be with.
    Around 7:05 a.m., Officer Eric Hibbard responded to a report of a shooting at
    defendant’s house. When he arrived, he saw Brenton leaning up against the fender of a
    white Cadillac holding Marth in his arms. Marth had been shot in the face. Shortly after
    Officer Hibbard placed Marth on the ground, defendant came running out of the house
    with blood on his clothes and face. Defendant told Officer Gregory Hayden to “[c]all the
    ambulance for my girlfriend.”
    2   To avoid confusion and meaning no disrespect, we will refer to the Boatmans by
    their first names.
    3
    With both defendant and Brenton detained, Officer Hibbard and two other officers
    conducted a safety sweep of the house. Inside, the officers found Brandon, Williams, and
    Hanna. Upon entering the bedroom where Marth had been shot, Officer Hibbard saw
    bloodstains on the bed and pillow. He also saw some marijuana and marijuana
    paraphernalia in the room. A trail of blood led Officer Hibbard from the bedroom to the
    kitchen. Officer Hibbard saw a black revolver on the kitchen floor. Both the floor and
    revolver appeared to be wet with water. The revolver contained five live .38-caliber
    rounds, as well as one fired round. During a subsequent search of the room where Marth
    was shot, a box containing a semiautomatic handgun, a box of .38-caliber bullets, and a
    duffel bag containing a sawed-off shotgun and a box of shotgun shells were found.
    Brandon’s bedroom shares a wall with the room in which Marth was shot. On the
    day of the shooting, Williams (who was in Brandon’s room) told an investigating officer
    that she was awoken by a “[l]oud screaming argument between a guy and a girl for at
    least three minutes.” She said she did not know where the yelling was coming from and
    that she could not tell what the “[l]oud screaming” was about. At trial, Williams did not
    remember characterizing the sounds she heard as “loud screaming,” and said she was
    awoken by “loud talking.” A couple of minutes after hearing the “loud talking,”
    Williams heard a gunshot. Immediately afterward, Williams heard a commotion and
    screaming; “it seemed like someone was panicking, like yelling or screaming like out of
    fear.”
    4
    Defendant was taken to the police station by a Riverside police officer. On the
    way to the police station, defendant asked the officer if he knew if Marth was okay.
    Defendant said: “I can’t lose her. I would do anything for her. How is someone
    supposed to go on with their life when they see something like that? We were just going
    to watch a movie.” Defendant was crying with his head down for most of the trip.
    Defendant was interviewed by two homicide detectives. He gave different
    versions of what had happened that day and admitted at trial that he lied to the officers.
    In the first version, defendant claimed that Marth had accidentally shot herself. He said
    he was showing her a gun he had recently purchased; he did not tell her it was loaded;
    and as she was playing around with it, she accidentally shot herself.
    In defendant’s second version, he said he shot Marth, but claimed the shooting
    was accidental and that he did not think the gun was loaded. He explained that they were
    sitting on the couch; Marth pointed the gun at him, he pushed the gun away, and she
    pointed it at him again; he then took the gun, pointed it at her, and accidentally shot her.
    In the third version, defendant said he knew the gun was loaded. He described the
    events this way: “She pointed it at me. I slapped it away. She pointed it at me. I
    slapped it away. We both knew it was loaded. And then I went like that and I cocked
    back the hammer just jokingly and it slipped, pow.” He later added: “I pulled it back
    . . . . [¶] . . . [¶] . . . and it slipped. [¶] . . . [¶] . . . Like I didn’t get to pull it all the
    way back.” In this version, defendant claimed that his finger was not on the trigger. At
    5
    trial, this version was placed in doubt by a criminalist with an expertise in firearms who
    testified that, because of the multiple safeties on the gun, the gun could not be fired by
    pulling the hammer back and releasing it before it is fully cocked.
    Defendant testified at trial. He stated that after a few restless nights in jail, he was
    released on bail around 3:30 a.m. and walked home. Along the way, he sent a text
    message to Marth to tell her he was going to come get her. He arrived at his house
    around 5:00 a.m. He and Brenton picked up Marth around 5:30 that morning and
    returned to their house. Defendant and Marth were happy to see each other.
    After the three returned to defendant’s house, they planned to smoke a “blunt”—a
    cigarillo in which the tobacco has been removed and replaced with marijuana—and
    watch a movie. After showering, defendant took some Xanax and Norcos pills.
    Defendant said that these pills typically make him feel drunk and euphoric and that on the
    day in question the drugs made him disoriented.3
    Defendant and Marth were in a bedroom that had been converted from a back
    patio. Defendant went to his safe, which contained marijuana and money, and began
    weighing the marijuana and counting the money. Marth said, “[h]ey, baby.” Defendant
    turned around and saw Marth pointing a gun at him. Marth had apparently retrieved the
    gun from underneath defendant’s pillow. Defendant was not worried because he trusted
    Marth. He slapped the gun away and continued to weigh the marijuana.
    3The detective who interviewed defendant testified that he did not notice that
    defendant had any symptoms of being under the influence of drugs during their interview.
    6
    At this point, a mosquito landed on Marth, causing her to “scream[] a little bit.”
    She “jumped up, started waving her hands, doing a whole bunch of girly stuff . . . .” In
    order to tease her, defendant “grabbed the mosquito, and . . . brought it closer to her, and
    she got even more upset.” To make up for the teasing, defendant gave Marth a hug and a
    kiss, then went back to weighing his marijuana.
    When defendant turned around, Marth was sitting on the edge of the bed pointing
    the gun at him again. The bed did not have a frame and was low on the floor. Defendant,
    who had just finished putting the marijuana back into the safe on the floor, was squatting
    and about “eye to eye” with Marth. He took the gun away from Marth and pointed it at
    her. He knew the gun was loaded when he received it and it “had to be loaded because
    [he] didn’t take the bullets out.” He cocked the hammer back, but did not intend to
    threaten or shoot her. He was “[j]ust kind of being stupid[.]” Defendant then described
    what happened next:
    “[DEFENDANT:] She slapped the gun, and as soon as she slapped the gun, the
    gun went off. I almost dropped it. I tried to grab hold of it. Still the gun didn’t drop. As
    soon as I squeezed it, it went off.
    “Q. Okay. Why are you squeezing it?
    “A. I didn’t want to drop it. I didn’t want anything to happen. I guess just a
    reaction.
    “Q. Okay.
    7
    “A. You drop something; you try not to drop it.
    “Q. Did you sit there and think this through step by step or was it kind of more an
    instinctive reaction?
    “A. It just happened so quick. It just happened. I didn’t think about it at all.”
    Immediately after the shot, defendant told Brenton “to call the cops,” which he
    did. Defendant tried to give Marth mouth-to-mouth resuscitation. When Marth told
    defendant she could not breathe, defendant and Brenton took her outside to the driveway
    in front of the house “to get her help.”
    Defendant went back into the house to get his keys. From inside the house, he
    heard sirens and panicked. Defendant grabbed the gun and rinsed it off in an attempt to
    wash off the fingerprints. He tossed the gun into the bottom of a kitchen cabinet. He
    then ran outside where he was met by police officers.
    A recording of Brenton’s 911 call was played to the jury. Brenton lied to the 911
    operator, telling her his name was “Paul” and that he did not know who had shot Marth.
    Defendant can be heard in the background of the telephone call crying and repeatedly
    saying things like, “[n]oooo,” “[b]aby,” and “[b]aby are you alive, baby . . . .”
    A forensic pathologist estimated that the gun was fired roughly 12 inches from
    Marth’s face. She arrived at this estimate based on evidence of stippling, “a phenomenon
    where some of the gunpowder comes out of the gun and actually tattoos and burns the
    skin.” The doctor also opined on the trajectory of the bullet: “Essentially the projectile
    8
    entered just to the left side of her nose. It was recovered in the back portion of her neck a
    little bit to the right. And so the trajectory would have been front to back, slightly left to
    right, and slightly downward.”
    Marth’s best friend, Heather Hughes, testified that she and Marth had exchanged
    text messages in the hours before the shooting. A text sent at 10:29 p.m. on March 17,
    2010 (the night before defendant was released from jail) read: “Going to sleep soi [sic]
    can wake up when [defendant] calls.” At 4:24 a.m. on March 18, 2010, Marth texted:
    “[Defendant’]s out.” Two minutes later she sent: “I alrea[d]y fuckin wish he was locked
    back up.....[O]mg [you] have no clue.” At 7:02 a.m., Marth wrote: “Just were [sic]
    fighting ...with him right now.”
    III. DISCUSSION
    A. Sufficiency of the Evidence of First Degree Murder
    Defendant contends the evidence was insufficient to find him guilty of first degree
    murder. We agree. Although the evidence is sufficient for reasonable jurors to have
    found that defendant killed Marth with malice aforethought, there is insufficient evidence
    to support the finding that the killing occurred with premeditation and deliberation.
    1. Standard of Review
    A state court conviction that is not supported by sufficient evidence violates the
    due process guarantees of the federal and California Constitutions, and is therefore
    invalid. (People v. Rowland (1992) 
    4 Cal.4th 238
    , 269.) In determining whether a
    9
    criminal conviction is supported by sufficient evidence for purposes of federal due
    process, a reviewing court must “determine whether the record evidence could reasonably
    support a finding of guilt beyond a reasonable doubt.” (Jackson v. Virginia (1979) 
    443 U.S. 307
    , 318, fn. omitted.) In Jackson, the Supreme Court explained that “this inquiry
    does not require a court to ‘ask itself whether it believes that the evidence at the trial
    established guilt beyond a reasonable doubt.’ [Citation.] Instead, the relevant question 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.] This familiar standard gives full play to the responsibility
    of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and
    to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has
    been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is
    preserved through a legal conclusion that upon judicial review all of the evidence is to be
    considered in the light most favorable to the prosecution.” (Id. at pp. 318-319, fn.
    omitted.)
    The standard under our state Constitution is “identical.” (People v. Coffman and
    Marlow (2004) 
    34 Cal.4th 1
    , 87.) As our state Supreme Court has explained, we “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
    10
    beyond a reasonable doubt.” (People v. Johnson (1980) 
    26 Cal.3d 557
    , 578.) Substantial
    evidence is evidence that “maintains its credibility and inspires confidence that the
    ultimate fact it addresses has been justly determined.” (People v. Conner (1983) 
    34 Cal.3d 141
    , 149.) The “whole record” includes “the entire picture of the defendant put
    before the jury” and is not limited “to isolated bits of evidence selected by the
    respondent.” (Id. at p. 577.) This standard is the same regardless of whether the People
    primarily rely on circumstantial evidence. (People v. Bean (1988) 
    46 Cal.3d 919
    , 932.)
    2. Background Principles
    Murder is the unlawful killing of a human being with malice aforethought. (§ 187,
    subd. (a).) Malice may be either express or implied. Express malice exists when there is
    a deliberate intention unlawfully to take away the life of a fellow creature. (§ 188.) It is
    implied when no considerable provocation appears or when the circumstances attending
    the killing show an abandoned and malignant heart. (§ 188.) This statutory definition of
    implied malice “is quite vague” and “‘has never proved of much assistance in defining
    the concept in concrete terms.’ [Citation.]” (People v. Chun (2009) 
    45 Cal.4th 1172
    ,
    1181.) Courts have interpreted the statutory language to mean that malice is implied
    “when a killing results from an intentional act, the natural consequences of which are
    dangerous to human life, and the act is deliberately performed with knowledge of the
    danger to, and with conscious disregard for, human life.” (People v. Cook (2006) 
    39 Cal.4th 566
    , 596.)
    11
    Here, defendant concedes that the evidence, viewed favorably to the prosecution,
    is sufficient to support a jury’s finding of implied malice. We agree. Defendant told
    interviewing officers he knew the gun was loaded and intentionally cocked the hammer
    back, albeit “jokingly”; the hammer slipped, causing the gun to fire and kill Marth. The
    jury could have easily concluded that pointing a loaded gun at someone and pulling the
    hammer back is an intentional act, the natural consequences of which are dangerous to
    human life, and that defendant deliberately did so with knowledge of such danger and
    with conscious disregard for Marth’s life, even if, as defendant said, “it was just all in
    play.” There is thus sufficient evidence to establish that defendant acted with malice
    aforethought and committed murder.
    There are two degrees of murder. Section 189 defines first degree murder as
    “murder which is perpetrated by means of a destructive device or explosive, a weapon of
    mass destruction, knowing use of ammunition designed primarily to penetrate metal or
    armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and
    premeditated killing, or which is committed in the perpetration of, or attempt to
    perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train
    wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder
    which is perpetrated by means of discharging a firearm from a motor vehicle,
    intentionally at another person outside of the vehicle with the intent to inflict death, is
    murder of the first degree. All other kinds of murders are of the second degree.”
    12
    In People v. Thomas (1945) 
    25 Cal.2d 880
    , our state Supreme Court construed the
    meaning of “willful, deliberate, and premeditated” in light of the phrase’s placement
    among the specifically enumerated instances of a killing perpetrated, among other ways,
    during arson, rape, robbery, burglary, or mayhem. (Id. at p. 899.) Applying the ejusdem
    generis rule of statutory construction, the court stated: “By conjoining the words ‘willful,
    deliberate, and premeditated,’ in its definition and limitation of the character of killings
    falling within murder of the first degree the Legislature apparently emphasized its
    intention to require as an element of such crime substantially more reflection than may be
    involved in the mere formation of a specific intent to kill.” (Id. at p. 900, italics added.)
    In People v. Bender (1945) 
    27 Cal.2d 164
    , the Supreme Court explained the need
    to distinguish deliberation and premeditation from malice aforethought. Malice
    aforethought is “an essential element of the crime of murder whether it be of the first
    degree or of the second degree . . . . [¶] . . . [¶] . . . [and] is not synonymous with the
    elements of deliberation and premeditation . . . .” (Id. at p. 180.) “Obviously, if malice
    aforethought necessarily included or presupposed a deliberate and premeditated intent[,]
    then all murder would be of the first degree because any homicide, to constitute murder at
    all, must be an unlawful killing with malice aforethought; and the Legislature would be
    guilty of an utterly meaningless classification of murder into two degrees, with no field in
    which the second could operate. Likewise it is obvious that the mere intent to kill is not
    the equivalent of a deliberate and premeditated intent to kill.” (Id. at p. 181.)
    13
    Deliberation, the Bender court stated, “‘means careful consideration and
    examination of the reasons for and against a choice or measure.’ [Citation.]” (People v.
    Bender, supra, 27 Cal.2d at p. 183.) Premeditation “means ‘To think on, and revolve in
    the mind, beforehand; to contrive and design previously.’ [Citation.]” (Ibid.) Relying on
    the Thomas court’s emphasis on reflection, the court concluded that “‘[t]he true test is not
    the duration of time as much as it is the extent of the reflection.’” (People v. Bender,
    supra, at p. 185, quoting People v. Thomas, supra, 25 Cal.2d at p. 900.)
    These principles underpin more recent statements of premeditation and
    deliberation. “The very definition of ‘premeditation’ encompasses the idea that a
    defendant thought about or considered the act beforehand.” (People v. Pearson (2013)
    
    56 Cal.4th 393
    , 443.) “Deliberate” means “‘“‘formed or arrived at or determined upon as
    a result of careful thought and weighing of considerations for and against the proposed
    course of action.’ [Citation.]” [Citation.]’” (People v. Houston (2012) 
    54 Cal.4th 1186
    ,
    1216.) Thus, “‘[a]n intentional killing is premeditated and deliberate if it occurred as the
    result of preexisting thought and reflection rather than unconsidered or rash impulse.’”
    (People v. Pearson, supra, at p. 443.)
    Courts have also emphasized that “‘“[t]he 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 . . . .’
    14
    [Citations.]” [Citation.]’” (People v. Houston, supra, at p. 1216.) Judicial reliance on
    this language, however, has led to criticism that courts have “collapsed any meaningful
    distinction between first and second degree murder.” (People v. Solomon (2010) 
    49 Cal.4th 792
    , 812, citing Mounts, Premeditation and Deliberation in California:
    Returning to a Distinction Without a Difference (2002) 36 U.S.F. L.Rev. 261, 327-328.)
    In response, our state Supreme Court reaffirmed the significance of “preexisting
    reflection, of any duration” to distinguish first degree murder (based on premeditation
    and deliberation) from second degree murder. (People v. Solomon, supra, at p. 813;
    accord, People v. Houston, supra, 54 Cal.4th at p. 1217.)
    Here, the only direct evidence of defendant’s mental state at the time of the
    shooting is defendant’s statements to investigators and his testimony at trial. Although
    his statements regarding the shooting were inconsistent in significant respects, there is
    nothing in any of his statements to indicate that he considered shooting Marth beforehand
    or carefully weighed considerations for and against killing her. The evidence of such
    premeditation and deliberation, if any, was circumstantial.
    The use of circumstantial evidence in proving first degree murder was discussed in
    People v. Anderson (1968) 
    70 Cal.2d 15
     (Anderson). The court stated: “Given the
    presumption that an unjustified killing of a human being constitutes murder of the
    second, rather than of the first, degree, and the clear legislative intention to differentiate
    between first and second degree murder, [a reviewing court] must determine in any case
    15
    of circumstantial evidence whether the proof is such as will furnish a reasonable
    foundation for an inference of premeditation and deliberation [citation] or whether it
    ‘leaves only to conjecture and surmise the conclusion that defendant either arrived at or
    carried out the intention to kill as the result of a concurrence of deliberation and
    premeditation.’” (Id. at p. 25.)
    An inference is a “conclusion reached by considering other facts and deducing a
    logical consequence from them.” (Black’s Law Dict. (8th ed. 2004) p. 793, col. 2.) “The
    strength of an inference may vary widely. In some circumstances, the preliminary facts
    may virtually compel the conclusion. In other circumstances, the preliminary facts may
    minimally support the conclusion. But to constitute an inference, the conclusion must to
    some degree reasonably and logically follow from the preliminary facts. If, upon proof
    of the preliminary facts, the conclusion is mere guesswork, then we refer to it by such
    words as speculation, conjecture, surmise, suspicion, and the like; and it cannot rise to the
    dignity of an inference.” (People v. Massie (2006) 
    142 Cal.App.4th 365
    , 373-374.)
    The defendant in this case gave multiple false versions of how Marth was shot.
    The question of whether a defendant’s false denials of wrongdoing can support an
    inference that he committed the charged crimes was recently addressed in People v.
    Velazquez (2011) 
    201 Cal.App.4th 219
    . In rejecting such an inference, the Velazquez
    court stated: “The prosecution bears the burden to prove each element of the crimes
    charged. [Citation.] That burden is not met through mere disbelief of defendant’s denial
    16
    that he committed the crimes. ‘A reasonable inference “‘may not be based on suspicion
    alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work.’”
    [Citation.] It must logically flow from other facts established in the action.’ [Citations.]
    Disbelief of defendant’s testimony, without more, does not constitute ‘other facts’ from
    which logically flows the conclusion, beyond a reasonable doubt, that defendant did that
    which he denied doing.” (Id. at p. 231.)
    3. Analysis
    The Anderson court provided guidelines “for the kind of evidence which is
    sufficient to sustain a finding of premeditation and deliberation.” Such evidence “falls
    into three basic categories: (1) facts about how and what defendant did prior to the actual
    killing which show that the defendant was engaged in activity directed toward, and
    explicable as intended to result in, the killing—what may be characterized as ‘planning’
    activity; (2) facts about the defendant’s prior relationship and/or conduct with the victim
    from which the jury could reasonably infer a ‘motive’ to kill the victim, which inference
    of motive, together with facts of type (1) or (3), would in turn support an inference that
    the killing was the result of ‘a pre-existing reflection’ and ‘careful thought and weighing
    of considerations’ rather than ‘mere unconsidered or rash impulse hastily executed’
    [citation]; (3) facts about the nature of the killing from which the jury could infer that the
    manner of killing was so particular and exacting that the defendant must have
    intentionally killed according to a ‘preconceived design’ to take his victim’s life in a
    17
    particular way for a ‘reason’ which the jury can reasonably infer from facts of type (1) or
    (2). [¶] Analysis of the cases will show that this court sustains verdicts of first degree
    murder typically when there is evidence of all three types and otherwise requires at least
    extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3).”
    (Anderson, supra, 70 Cal.2d at pp. 26-27.)
    To illustrate planning evidence, Anderson discussed the case of People v. Hillery
    (1965) 
    62 Cal.2d 692
    , in which “the defendant’s surreptitious conduct[,] subjection of his
    victim to his complete control, and carrying off of his victim to a place where others were
    unlikely to intrude, can be described as ‘planning’ activity directly related to the killing.”
    (Anderson, supra, 70 Cal.2d at p. 27.) In another case, planning evidence was found
    when the defendant left the victims to retrieve a rifle from his car and, after killing one
    victim, manually loaded a second shot into the gun’s chamber to kill the second victim.
    (People v. Thomas (1992) 
    2 Cal.4th 489
    , 517.) There was also planning evidence in
    People v. Young (2005) 
    34 Cal.4th 1149
    , where the defendant, after being denied entry to
    a house, crashed through a living room window armed with a gun before killing a
    resident inside the house. From such evidence, the jury could infer that the “defendant
    ‘considered the possibility of murder in advance’ . . . .” (Id. at p. 1183.)
    The present case lacks any planning evidence whatsoever. Defendant, along with
    his younger brother, picked up Marth from her house and drove back to his home, not to
    a remote or isolated location. The house was occupied by four other people who could
    18
    identify him. There is 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. Indeed, the only evidence
    regarding his possession of the gun was that he took it away from Marth just prior to the
    shooting. Defendant testified that he did not intend to shoot Marth. Although the jury
    could refuse to believe such testimony, such disbelief cannot support an inference “that
    defendant did that which he denied doing.” (People v. Velazquez, supra, 201
    Cal.App.4th at p. 231.)
    Defendant’s behavior following the shooting is of someone horrified and
    distraught about what he had done, not someone who had just fulfilled a preconceived
    plan. Immediately after the fatal shot, defendant tried to resuscitate Marth and directed
    his brother to “call the cops.” Defendant could be heard crying in the background during
    the 911 call. He asked the first officer who arrived to call an ambulance and, when being
    taken to the police station, he cried and asked rhetorically how someone could “go on
    with their life when they see something like that.” The evidence not only fails to support
    an inference of a plan to kill Marth, but strongly suggests a lack of a plan to kill. Even
    viewed in the light most favorable to the prosecution, there is no evidence of planning.
    There is little or no relevant motive evidence here. The Attorney General points to
    Marth’s text messages to Hughes and asserts that the jury may have inferred that
    “[defendant] was in a bad mood after being released from custody and he was angry with
    [Marth].” Other than the references to the text messages, the Attorney General does not
    19
    cite to evidence defendant was in a “bad mood” or “angry” with Marth. Even if such a
    mood or anger can be reasonably inferred from Marth’s texts and could suggest the intent
    to kill, it is, at most, weak evidence of a motive suggesting premeditation and
    deliberation. The second Anderson factor refers not merely to a motive to kill, but to the
    kind of motive that “would in turn support an inference that the killing was the result of a
    ‘pre-existing reflection’ and ‘careful thought and weighing of considerations’ rather than
    ‘mere unconsidered or rash impulse hastily executed.’” (Anderson, supra, 70 Cal.2d at p.
    27, italics added.) The text messages and the evidence of a loud screaming argument,
    which the Attorney General relies on, do not suggest this kind of motive. To the
    contrary, any evidence of defendant’s “bad mood” or “anger with the victim” indicates a
    motive to kill based on “‘unconsidered or rash impulse hastily executed,’” not the sort of
    “‘pre-existing reflection’” and “‘careful thought and weighing of considerations’”
    required to find premeditation and deliberation. (Ibid.)
    As for the manner of killing evidence, defendant shot Marth in the face. As noted
    above, this manner of killing supports the finding of malice necessary to convict
    defendant of murder. To support first degree murder, however, the prosecution must
    show more than an intent to kill. (People v. Koontz (2002) 
    27 Cal.4th 1041
    , 1080
    (Koontz).) It must still establish that the gunshot to the face was pursuant to a
    “‘preconceived design’ to take his victim’s life . . . .” (Anderson, supra, 70 Cal.2d at p.
    27.)
    20
    Even when manner of killing evidence is strong, cases in which findings of
    premeditation and deliberation are upheld typically involve planning and motive evidence
    as well. For example, in People v. Cruz (1980) 
    26 Cal.3d 233
    , the defendant killed one
    of his victims, his wife, by crushing her skull with a pipe and shooting her in the face
    with a shotgun. (Id. at pp. 240, 245.) The court held that the finding of premeditation
    and deliberation was supported by “all three types of evidence specified in Anderson” (id.
    at p. 245); the defendant resented the victims (motive), snuck out of his house to secure a
    pipe and load a shotgun (planning), and returned to the house to kill one of his victims by
    crushing her skull with the pipe followed by a shotgun blast to the face (manner of
    killing). In People v. Mendoza (2011) 
    52 Cal.4th 1056
    , the defendant shot a police
    officer in the face, killing him. (Id. at p. 1063.) In upholding the first degree murder
    conviction, the court relied not only on evidence of the manner of killing, but also on
    evidence that the defendant “devised a plan to kill [the officer] once the officer indicated
    he would conduct a weapons search,” and had a motive for the killing—to avoid arrest
    and parole revocation. (Id. at p. 1070.)
    Here, as discussed above, there is no evidence of any plan to kill Marth and little
    or no meaningful evidence of a motive to kill her.
    Cases that have found sufficient evidence of premeditation and deliberation in the
    absence of planning or motive evidence are those in which “[t]he manner of the killing
    clearly suggests an execution-style murder.” (People v. Hawkins (1995) 
    10 Cal.4th 920
    ,
    21
    956, overruled on other grounds in People v. Lasko (2000) 
    23 Cal.4th 101
    , 110; see also
    People v. Bloyd (1987) 
    43 Cal.3d 333
    , 348.) In Hawkins, the victim was found in a ditch
    in an open field with two gunshot wounds: one in the back of the neck and one in the
    back of the head near the base of the skull. (People v. Hawkins, supra, 10 Cal.4th at p.
    956.) There was also evidence that the victim was crouching or kneeling at the time.
    (Ibid.) The court concluded: “In sum, although evidence of planning and motive was
    indeed minimal if not totally absent in the present case, we conclude that the manner-of-
    killing evidence was sufficiently strong to permit a trier of fact to conclude beyond a
    reasonable doubt that defendant committed the . . . murder with premeditation and
    deliberation.” (Id. at p. 957.) In Bloyd, two people were killed; one victim was lying
    down on her back and another was kneeling. The first victim “died from a pointblank
    gunshot wound to the head that entered the brain.” (People v. Bloyd, supra, 43 Cal.3d at
    p. 342.) The bullet in the second victim “went down, back to front, and left to right,
    through the midportion of the brain, and exited just below the ear lobe on the right side.”
    (Ibid.) The evidence of “cold and calculated—execution-style killings,” the court
    explained, “was very strong evidence of deliberation and premeditation[.]” (Id. at p.
    348.)
    Here, the Attorney General does not assert that the shooting of Marth was an
    “execution-style” murder. Nor is there any evidence from which jurors could reasonably
    infer such a manner of killing. None of the events preceding the shooting or its location
    22
    suggests an execution. Unlike the shots to the head from behind in Hawkins and Bloyd,
    defendant and Marth were facing toward each other, and there is no evidence that Marth
    was crouching or kneeling at the time. Although the gun was only 12 inches away from
    Marth when fired, the bullet completely missed Marth’s brain; and although the gun still
    held five live rounds, no second shot was fired. Defendant’s actions immediately
    afterward—directing Brenton to call 911 and attempting to resuscitate Marth and seek
    medical aid—are not the actions of an executioner. In short, the manner of killing Marth
    was not “so particular and exacting that the defendant must have intentionally killed
    according to a ‘preconceived design’ . . . .” (Anderson, supra, 70 Cal.2d at p. 27.)
    With no evidence of planning or motive and a killing that cannot be described as
    “execution-style,” the application of the Anderson factors weigh heavily in favor of
    concluding there was insufficient evidence for a reasonable jury to conclude that the
    killing was the result of premeditation and deliberation.
    As the Attorney General points out, the Anderson factors are not exhaustive or
    exclusive of other considerations. Indeed, our Supreme Court has cautioned that an
    “‘[u]nreflective reliance on Anderson for a definition of premeditation is inappropriate.
    The Anderson analysis was intended as a framework to assist reviewing courts in
    assessing whether the evidence supports an inference that the killing resulted from
    preexisting reflection and weighing of considerations. It did not refashion the elements
    of first degree murder or alter the substantive law of murder in any way.’ [Citation.]”
    23
    (Koontz, 
    supra,
     27 Cal.4th at p. 1081.) The question thus remains whether, in light of the
    whole record, there is substantial evidence from which rational jurors could have found
    that defendant’s killing of Marth was the result of preexisting thought and the careful
    weighing of considerations. (See Jackson v. Virginia, 
    supra,
     443 U.S. at pp. 318-319;
    People v. Johnson, supra, 26 Cal.3d at pp. 577-578.)
    The Attorney General emphasizes three aspects of the evidence to support
    premeditation and deliberation. First, the Attorney General argues that defendant did not
    shoot Marth during the “[l]oud and screaming argument” heard by Williams, but did so
    only after the screaming ended. This, the Attorney General contends, “reasonably
    supports the inference that [defendant] had time to consider his actions before [h]e
    pointed his Taurus pistol at [Marth’s] face and fired from close range.” However,
    “‘“[t]he true test [of premeditation and deliberation] is not the duration of time as much
    as it is the extent of the reflection. . . .” [Citations.]’ [Citation.]” (Koontz, 
    supra,
     27
    Cal.4th at p. 1080.) Thus, the mere fact that a defendant has time to consider his actions
    is, without more, insufficient to support an inference that the defendant actually
    premeditated and deliberated. Indeed, if the mere passage of time was enough to infer
    premeditation and deliberation, then virtually any unlawful killing with malice
    aforethought would be first degree murder because premeditation and deliberation does
    not require any extended period of time. (See ibid.) As discussed above, however,
    premeditation and deliberation is not synonymous with malice aforethought (People v.
    24
    Bender, supra, 27 Cal.2d at p. 180); it requires “substantially more reflection.” (People
    v. Thomas, supra, 25 Cal.2d at p. 900.) Clearly, there must be some evidence that the
    defendant actually engaged in such reflection, and not merely had the time to do so.
    For this argument, the Attorney General relies on People v. Harris (2008) 
    43 Cal.4th 1269
    . In that case, a mother worked at a donut shop and took her daughter to
    work with her. (Id. at p. 1277.) The mother tapped at a door to signal the daughter to
    open it. As the daughter approached the door, defendant was standing at the service
    window. The daughter attempted to open the door for her mother, but could not. The
    mother told the daughter to wait on the customer. The daughter took the defendant’s
    order and began to prepare it. The defendant then attacked and killed the mother with a
    butcher knife. (Ibid.) The court held that there was sufficient evidence of premeditation
    and deliberation and explained: “In the time it took for [the daughter] to go from the
    door to the service window, and to take and prepare defendant’s order, there was ample
    time for him to deliberate and premeditate before attacking [the mother].” (Id. at p.
    1287.)
    Contrary to the Attorney General’s suggestion, Harris does not hold that
    premeditation and deliberation can be inferred whenever the defendant had time to
    premeditate and deliberate. The facts in Harris indicate that the defendant had a reason
    to be at the service window (to buy donuts) and left his position at the window to go to
    the door where he had no reason to be other than to attack the mother. This implies that
    25
    he made the decision to attack the mother while he was at the service window before
    walking to the door to carry out his plan. It was not the mere passage of time that was
    significant, but the fact that the defendant’s actions imply that he made the decision to
    kill while he was at the service window and then considered the decision as he walked to
    the door to commit the murder. Here, by contrast, there is no fact analogous to leaving
    the donut store service window or other evidence that defendant had given any thought or
    consideration to killing Marth.
    Harris was followed in People v. Nelson (2011) 
    51 Cal.4th 198
    . The Nelson court
    relied on Harris to conclude that the defendant in Nelson “had ample time to premeditate
    and deliberate” before attempting to shoot his intended victim. (Id. at p. 213.) The court
    did not hold that having such ample time was itself sufficient to infer premeditation and
    deliberation. As the court further explained, the defendant “formed an intent to kill and
    took several steps to achieve that end. He took up a firearm, climbed out of a moving
    car, sat on the window frame, reached across the roof, braced himself, and aimed at Doe.”
    (Ibid.) Thus, as in Harris, there was evidence in Nelson that the defendant formed an
    intent to kill and then took steps—which took “ample time”—before aiming his gun at
    the intended victim. Here, by contrast, there is no substantial evidence from which the
    jury could determine the point (if any) when defendant formed the intent to kill or any
    steps thereafter taken to fulfill that goal.
    26
    Next, the Attorney General argues, “[t]he close-range shooting . . . supports a
    rational inference by the jury of premeditation and deliberation.” For this argument, the
    Attorney General cites to People v. Gonzales and Soliz (2011) 
    52 Cal.4th 254
    , People v.
    Marks (2003) 
    31 Cal.4th 197
    , and Koontz, 
    supra,
     27 Cal.4th at page 1082. These cases
    are distinguishable from ours in that they all had other types of Anderson evidence in
    addition to a close-range shooting.
    In Gonzales and Soliz, the defendants were members of a Hispanic street gang.
    (People v. Gonzales and Soliz, supra, 52 Cal.4th at p. 263.) They and others were in a
    car when they saw two or three African-American men from a rival gang standing in the
    driveway of a gas station. (Id. at pp. 268-270.) The defendants recognized the men and
    told the driver of the car to go back to the gas station. (Id. at p. 270.) One of the
    defendants shot the African-American men. (Id. at p. 269.) When one of the victims
    started to crawl away, the shooter walked up and shot him again. (Ibid.) One of the
    victims had been shot from behind while kneeling on the ground with the shooter
    standing over him; the other had been shot seven times, including two fatal wounds to the
    head. (Id. at p. 271.) In holding that there was sufficient evidence of premeditation and
    deliberation, the court stated: “Here, the evidence of motive was that defendants targeted
    [the victims] for a gang retaliation murder . . . . This motive evidence supported the
    inference that defendants, who were armed at the time, had the prospect of retaliation in
    mind and quickly decided to commit the murders once they identified potential targets.
    27
    A reasonable inference, therefore, is that defendants formed the intent to commit
    premeditated and deliberate murder as early as when they asked the driver to turn the car
    around and return to the gas station to confront [the victims]. . . .” (Id. at p. 295.) As for
    “manner” evidence, the court stated: “The manner of killing—a close-range shooting
    without any provocation or evidence of a struggle—additionally supports an inference of
    premeditation and deliberation.” (Ibid.)
    In Marks, the defendant and his girlfriend entered the victim’s taxi without any
    money to pay for the ride. (People v. Marks, 
    supra,
     31 Cal.4th at p. 206.) They arrived
    at their destination and the defendant asked his girlfriend to exit the taxi. (Ibid.) She
    went into an alley and then heard a gunshot from where the taxi was parked. (Ibid.) The
    defendant shot the driver in the face, killing him. (Ibid.) The Supreme Court stated that
    “[t]he shooting . . . manifested all three [Anderson] factors. Defendant ordered [his
    girlfriend] out of the taxi, which supports the inference that he did so to remove her from
    the scene before he killed. Moreover, if he brought a gun rather than money with which
    to pay for the taxi ride, it supports the inference that he planned a violent encounter with
    [the victim]. [Citations.] Defendant was found with seven $1 bills, whereas [the victim]
    was found with no bills (nor was any money found in the car), which tends to show a
    robbery motive. Finally, the manner of the killing, a close-range shooting without any
    provocation . . . or evidence of struggle, likewise demonstrates premeditation and
    deliberation.” (Id. at p. 230.)
    28
    In Koontz, the court summarized the facts as follows: “Defendant, having armed
    himself in the early morning hours with two concealed and loaded handguns, argued with
    the victim in the apartment they shared. When the victim sought refuge in [a security
    guard’s office], located in a different apartment in the complex, defendant pursued him
    and persisted in the argument . . . . After [the security guard] unsuccessfully exhorted the
    two men to resolve their differences . . . defendant said, ‘All right, I’ll settle it.’
    Defendant then entered the office, locked the door and pulled a handgun from the
    waistband of his pants. After the victim refused defendant’s demand for his car keys,
    defendant fired a shot at the victim’s abdomen. He then took active steps to prevent [the
    security guard] from summoning medical care, without which the victim was certain to
    die.” (Koontz, supra, 27 Cal.4th at pp. 1081-1082.) The court concluded: “Applying the
    Anderson guidelines, we easily find evidence of planning (defendant’s arming himself
    and following the victim to the [security guard’s] office), motive (to effectuate a
    robbery), and a manner of killing indicative of a deliberate intent to kill (firing a shot at a
    vital area of the body at close range, then preventing the witness from calling an
    ambulance). These facts suffice to support a verdict of premeditated and deliberate first
    degree murder.” (Id. at p. 1082.)
    Gonzales and Soliz, Marks, and Koontz are easily distinguishable from the present
    case. In each case cited by the Attorney General, the evidence indicated the defendants
    decided to confront and kill the victims some time prior to the shooting. In Gonzales and
    29
    Soliz, the armed defendants turned their car around to confront the victims; the defendant
    in Marks entered the taxi with a gun without the ability to pay for the cab ride; and the
    armed defendant in Koontz pursued the victim to the apartment complex security office
    and announced that he would “settle it.” Such evidence supports reasonable inferences
    that the killings were planned. Each defendant also had a motive (e.g., gang retaliation or
    robbery) that suggested the killing was the result of a pre-existing reflection, careful
    thought, and the weighing of considerations. Significantly, in none of these cases did the
    Supreme Court indicate that each defendant’s manner of shooting would be sufficient to
    support the premeditation and deliberation finding in the absence of evidence of planning
    and motive.
    Lastly, the Attorney General argues, defendant’s “act of shooting [Marth] does not
    bear the characteristics of a rash impulse because he took the time to pull back the
    hammer, point the pistol at [Marth’s] face, and fire the weapon.” Pulling the hammer
    back on a loaded gun and pointing it at another is certainly evidence of an intentional act
    performed with conscious disregard for human life, i.e., acting with implied malice.4
    However, the Attorney General provides no authority for the argument that these actions,
    without more, are sufficient to support a finding of premeditation and deliberation.
    4 We note that cocking, aiming, and firing a revolver essentially describes the act
    of shooting with a revolver. If these actions could, without more, constitute
    premeditation and deliberation, we would effectively add killing perpetrated by a
    revolver to the list of crimes specifically enumerated in section 189 and thereby
    substantially broaden the scope of first degree murder and eliminate the purposeful
    division created by the Legislature.
    30
    Although the cocking of a loaded rifle was one factor supporting such a finding in People
    v. Gonzalez (2012) 
    54 Cal.4th 643
    , there was also uncontroverted evidence of the
    defendant’s plan to attack the victim by ambush with the loaded rifle and a motive to kill
    the victim because of a conflict between the victim and the defendant’s brother. (Id. at
    pp. 663-664.) There is nothing in Gonzalez to suggest that the mere cocking of the
    loaded rifle would be sufficient to support a finding of premeditation and deliberation.
    A first degree murder conviction premised upon premeditation and deliberation
    requires more than a showing of the intent to kill; it requires evidence from which
    reasonable jurors can infer that the killing is the result of the defendant’s preexisting
    thought and reflection. (People v. Solomon, supra, 49 Cal.4th at pp. 812-813; Koontz,
    
    supra,
     27 Cal.4th at p. 1080.) Here, viewing the evidence in the entire record in the light
    most favorable to the prosecution, we conclude that there is ample evidence to support
    the jury’s verdict of murder, but insufficient evidence to support the finding that
    defendant killed Marth with premeditation and deliberation. We will therefore reduce the
    conviction to second degree murder. (See People v. Steger (1976) 
    16 Cal.3d 539
    , 553;
    § 1260.)
    B. Failure to Instruct, Sua Sponte, on Voluntary Manslaughter
    Defendant was charged with first degree murder. At trial, the jury received
    instructions regarding the crimes of involuntary manslaughter, first degree murder, and
    second degree murder. The court was not requested to, and did not, instruct on voluntary
    31
    manslaughter. Defendant argues that the court should have instructed the jury, sua
    sponte, on voluntary manslaughter under a heat of passion theory because it is a lesser
    included offense of murder and there was substantial evidence at trial that the killing was
    a “heat of passion” killing. We reject this contention.
    The law is well settled on this issue. “‘[A] trial court must instruct on lesser
    included offenses, even in the absence of a request, whenever there is substantial
    evidence raising a question as to whether all of the elements of the charged offense are
    present.’ [Citation.] Conversely, . . . a trial judge has no duty to instruct on any lesser
    offense unless there is substantial evidence to support such instruction.” (People v.
    Cunningham (2001) 
    25 Cal.4th 926
    , 1008.)
    Voluntary manslaughter is a lesser included offense of murder. (People v. Beltran
    (2013) 
    56 Cal.4th 935
    , 942; People v. Breverman (1998) 
    19 Cal.4th 142
    , 154.) Thus, in a
    murder case, instructions on voluntary manslaughter must be given to the jury if there is
    substantial evidence to support it. (People v. Breverman, 
    supra, at p. 160
    .)
    “[T]he existence of ‘any evidence, no matter how weak’ will not justify
    instructions on a lesser included offense, but such instructions are required whenever
    evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to
    merit consideration’ by the jury.” (People v. Breverman, 
    supra,
     19 Cal. 4th at p. 162.)
    “‘Substantial evidence’ in this context is “‘evidence from which a jury composed of
    32
    reasonable [persons] could . . . conclude[]”’ that the lesser offense, but not the greater,
    was committed.” (Ibid.)
    “[T]he factor which distinguishes the ‘heat of passion’ form of voluntary
    manslaughter from murder is provocation. The provocation which incites the defendant
    to homicidal conduct in the heat of passion must be caused by the victim [citation], or be
    conduct reasonably believed by the defendant to have been engaged in by the victim.
    [Citations.] The provocative conduct by the victim may be physical or verbal, but the
    conduct must be sufficiently provocative that it would cause an ordinary person of
    average disposition to act rashly or without due deliberation and reflection.” (People v.
    Lee (1999) 
    20 Cal.4th 47
    , 59.)
    Thus, in order for the trial court to have had a sua sponte duty to instruct, there
    must have been substantial evidence of such a provocation. In our case, there was not.
    The evidence includes the text messages indicating that defendant and Marth were
    fighting and the testimony by Williams and a police officer that Williams was awakened
    by “[l]oud screaming.” Although such evidence suggests a verbal fight or argument
    between defendant and Marth, there is no evidence about its duration, nature, or intensity.
    Without evidence to determine these facts, the jurors could not reasonably determine if
    the argument would have provoked an ordinary person to act rashly or without due
    deliberation and reflection. For that reason, there was not substantial evidence that the
    33
    killing occurred in a heat of passion. Therefore, the trial court had no sua sponte duty to
    instruct the jury on that theory.
    Defendant asserts that “[g]iven the absence of evidence of deliberation and
    premeditation and given [defendant’s] uncontrollable anguish in the immediate aftermath
    of the shooting, the worst that can be inferred is that he ‘saw red’ during the . . . heated
    argument.” However, the absence of premeditation and deliberation is not affirmative
    evidence that defendant acted “rashly or without due deliberation and reflection” as a
    result of a provocation.
    Defendant further stated that “[t]here is as much evidence that the killing was
    committed in the heat of passion as there is that malice was present, because heat of
    passion can involve ‘any violent or intense emotion that causes a person to act without
    due deliberation and reflection.’” We disagree. There is, as discussed above (and as
    defendant concedes), substantial evidence that the killing was committed with at least
    implied malice; i.e., as a result of an intentional act, the natural consequences of which
    are dangerous to human life, deliberately performed with knowledge of the danger to, and
    with conscious disregard for, human life. There is not, however, substantial evidence that
    the killing was committed in the heat of passion.
    Even if we agreed with defendant that the court had a duty to instruct as to
    voluntary manslaughter, the error would have been harmless.
    34
    The failure to instruct as to a lesser included offense is reviewed under the
    Watson5 standard for prejudice. (People v. Moye (2009) 
    47 Cal.4th 537
    , 555-556; People
    v. Breverman, 
    supra,
     19 Cal.4th at p. 178.) Under Watson, a reviewing court will reverse
    a judgment “only when the court, ‘after an examination of the entire cause, including the
    evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to
    the appealing party would have been reached in the absence of the error.” (Watson,
    supra, 46 Cal.2d at p. 836.) With no evidence that establishes the intensity, duration, or
    subject matter of the fight, it is not reasonably probable that the jury would have found
    defendant guilty of voluntary manslaughter. Thus, under the Watson standard, any error
    was harmless.
    C. Giving CALCRIM No. 224 Instead of CALCRIM No. 225
    At trial, defense counsel requested that the court instruct the jury with CALCRIM
    No. 225. The court denied this request and instead instructed the jury with CALCRIM
    No. 224. Defendant claims this was prejudicial error. We hold that the court did err by
    giving CALCRIM No. 224, but conclude that the error was harmless.
    1. CALCRIM Nos. 224 and 225
    “CALCRIM No. 224 is a form jury instruction that describes the manner in which
    the jury is to consider circumstantial evidence that the prosecution offers to prove facts
    5   People v. Watson (1956) 
    46 Cal.2d 818
     (Watson).
    35
    necessary to find a defendant guilty.” (People v. Contreras (2010) 184 Cal.App 4th 587,
    591.)
    CALCRIM No. 224 reads: “Before you may rely on circumstantial evidence to
    conclude that a fact necessary to find the defendant guilty has been proved, you must be
    convinced that the People have proved each fact essential to that conclusion beyond a
    reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the
    defendant guilty, you must be convinced that the only reasonable conclusion supported
    by the circumstantial evidence is that the defendant is guilty. If you can draw two or
    more reasonable conclusions from the circumstantial evidence, and one of those
    reasonable conclusions points to innocence and another to guilt, you must accept the one
    that points to innocence. However, when considering circumstantial evidence, you must
    accept only reasonable conclusions and reject any that are unreasonable.”
    “CALCRIM No. 225 is a form jury instruction that describes the manner in which
    the jury is to consider circumstantial evidence that the prosecution offers to prove a
    defendant’s intent or mental state.” (People v. Contreras, supra, 184 Cal.App.4th at p.
    592.)
    CALCRIM No. 225 reads: “The People must prove not only that the defendant
    did the act[s] charged, but also that (he/she) acted with a particular (intent/ [and/or]
    mental state). The instruction for (the/each) crime [and allegation] explains the (intent/
    [and/or] mental state) required. [¶] A[n] (intent/ [and/or] mental state) may be proved by
    36
    circumstantial evidence. [¶] Before you may rely on circumstantial evidence to conclude
    that a fact necessary to find the defendant guilty has been proved, you must be convinced
    that the People have proved each fact essential to that conclusion beyond a reasonably
    doubt. [¶] Also, before you may rely on circumstantial evidence to conclude that the
    defendant had the required (intent/ [and/or] mental state), you must be convinced that the
    only reasonable conclusion supported by the circumstantial evidence is that the defendant
    had the required (intent/ [and/or] mental state). If you can draw two or more reasonable
    conclusions from the circumstantial evidence, and one of those reasonable conclusions
    supports a finding that the defendant did have the required (intent/ [and/or] mental state)
    and another reasonable conclusion supports a finding that the defendant did not, you must
    conclude that the required (intent/ [and/or] mental state) was not proved by the
    circumstantial evidence. However, when considering circumstantial evidence, you must
    accept only reasonable conclusions and reject any that are unreasonable.”
    The Bench Notes to both jury instructions detail under what circumstances each is
    to be read. The Bench Notes for CALCRIM No. 224 (2011) pages 56 and 57 state: “If
    intent is the only element proved by circumstantial evidence, do not give this instruction.
    Give CALCRIM No. 225 . . . .” Conversely, the Bench Notes for CALCRIM No. 225,
    supra, pages 59 and 60 state: “Give this instruction when the defendant’s intent or
    mental state is the only element of the offense that rests substantially or entirely on
    37
    circumstantial evidence. If other elements of the offense also rest substantially or entirely
    on circumstantial evidence, do not give this instruction. Give CALCRIM No. 224 . . . .”
    Therefore, if the only element that rested substantially or entirely on circumstantial
    evidence was the defendant’s intent, CALCRIM No. 225 should have been read. In the
    present case, defendant’s intent was the only element that rested substantially on
    circumstantial evidence.
    In denying defense counsel’s request for CALCRIM No. 225, the trial court judge
    explained: “The entire case is circumstantial. So I’m giving [CALCRIM No.] 224.” The
    court further stated that the prosecution is “relying on circumstantial evidence as to who
    fired the gun. [¶] . . . [¶] . . . And who owned the gun because there were other people
    in the room.” On appeal, the Attorney General contends: “[C]ontrary to [defendant]’s
    assertions otherwise, the record reveals that the prosecutor relied upon circumstantial
    evidence not only to prove the mental state for murder, but also to prove motive and the
    manner of killing.”
    Both the trial judge and the Attorney General are mistaken. The prosecution was
    not relying on circumstantial evidence to prove who fired the gun or who owned the gun.
    Defendant, by his own admission, stated that he owned the gun and pulled the trigger.
    The lack of any dispute on this point was noted in the prosecutor’s closing argument:
    “Murder requires that the defendant committed an act that caused the death of Rebecca
    38
    Marth. That is undisputed. He did an act that caused her death. [¶] The second element
    is that when he acted, he had a state of mind called malice aforethought. . . .”
    Although the prosecution relied on circumstantial evidence to prove a motive and
    the manner of killing, neither motive nor the manner of killing are elements of the offense
    of murder. They are relevant to prove malice aforethought, premeditation, and
    deliberation—all mental states.
    Because defendant admitted the gun was his and that he was the person who
    pulled the trigger, the actus reus in this case did not rely either substantially or entirely on
    circumstantial evidence. Accordingly, the only element of the offense of murder that
    substantially or entirely relied on circumstantial evidence was the mental state or intent
    element: malice aforethought. Thus, the court erred in denying defense counsel’s
    request for CALCRIM No. 225.
    2. Harmless Error
    “Instructional error is subject to harmless error review.” (People v. Whisenhunt
    (2008) 
    44 Cal.4th 174
    , 214.) When trial error implicates a criminal defendant’s federal
    constitutional rights, the reviewing court must “be able to declare a belief that [the error]
    was harmless beyond a reasonable doubt” before it can find the error not prejudicial or
    harmless. (Chapman v. California (1967) 
    386 U.S. 18
    , 24.) If, on the other hand, the
    error arises under state law or state procedure, a more forgiving standard of review is
    appropriate under the Watson test. (Watson, supra, 46 Cal.2d at p. 836.) Under this test,
    39
    the error is harmless if there is no “reasonabl[e] probab[ility]” the error affected the
    outcome. (Ibid.) A reasonable probability does not mean “more likely than not”; rather,
    a reasonable probability exists when there is merely a “reasonable chance, more than an
    abstract possibility” of a different outcome. (College Hospital, Inc. v. Superior Court
    (1994) 
    8 Cal.4th 704
    , 715.)
    Under either the Chapman standard or the Watson standard, we hold the error is
    harmless. In People v. Rodrigues (1994) 
    8 Cal.4th 1060
     (Rodrigues), the court faced an
    analogous situation where the trial court gave CALJIC No. 2.01 rather than CALJIC No.
    2.02. (Rodrigues, 
    supra, at p. 1141
    .) Like CALCRIM No. 224, CALJIC No. 2.01
    instructs on the sufficiency of circumstantial evidence to prove guilt; like CALCRIM No.
    225, CALJIC No. 2.02 instructs more specifically on the sufficiency of circumstantial
    evidence to prove a defendant’s specific intent or mental state. (Rodrigues, 
    supra, at p. 1141
    .) CALJIC No. 2.02 “‘is designed for use instead of CALJIC [No.] 2.01 in a specific
    intent or mental state case in which the only element of the offense which rests
    substantially or entirely on circumstantial evidence is the element of specific intent or
    mental state.’” (Rodrigues, 
    supra, at pp. 1141-1142, fn. 46
    .) The defendant in Rodrigues
    argued that the court erred in failing to give the more specific CALJIC No. 2.02.
    (Rodrigues, 
    supra, at p. 1141
    .) The Supreme Court explained that it did not need to
    decide the merits of the argument, explaining that “[b]ecause the trial court delivered the
    40
    more inclusive instruction under CALJIC No. 2.01, its refusal to additionally instruct
    with CALJIC No. 2.02 clearly was not prejudicial error.” (Id. at p. 1142.)
    Here, as in Rodrigues, the more inclusive instruction was given. For that reason,
    the refusal to instruct with CALCRIM. No. 225 was not prejudicial error.
    D. Inadmissible Evidence/Ineffective Assistance of Counsel
    Defendant claims he was denied a fair trial by the admission of audio recordings
    of his interviews with police. He argues that portions of the recordings contained
    inadmissible character evidence. At trial, defense counsel failed to object to these
    portions of the recordings. For that reason, defendant additionally claims he was denied
    effective assistance of counsel. We conclude that defendant failed to preserve this claim
    on appeal and was not denied a fair trial or effective assistance of counsel.
    The challenged portions of the interviews are statements made by defendant to
    police officers about his pending criminal cases involving his use of firearms and
    statements made about his “gang” or “crew.” When asked if he was “on probation or
    anything like that,” defendant said he had “cases pending.” In one case he “got caught
    with a firearm.” More recently, he had been charged with “discharging . . . a firearm in
    unfashionable manner . . . .” Relative to this charge, he said he bailed himself out on the
    morning Marth was shot. When he was later asked if he had ever fired a gun, he
    answered, “the gun that I got busted with,” and added, “I had fired right before I got
    busted with it and I haven’t fired one since.” The officers also informed defendant that
    41
    “[e]arlier that night people saw you go by . . . the brothers that you guys were having a
    problem with . . . . [¶] . . . [¶] . . . [w]ent by the house and shot your gun in the air when
    you got down the street.” Defendant responded: “I hate that, no fucking way. I would
    never, never shoot my, shoot a gun out of my car.”
    Regarding the reference to a gang, defendant told the officers: “When my ex-
    fiancé[e] and I started having problems I ran back to the gang. I ran into [Marth]. I
    pretty much left my ex-fiancé[e] for her.” The detectives questioned defendant about this
    “gang,” asking, “is that a legit . . . . [¶] . . . [¶] . . . group?” Defendant clarified, “It’s
    like fucking five of ‘em” and “some other people will try to claim it and we’ll clown on
    ‘em cause it’s like five, I mean . . . . [¶] . . . [¶] . . . it’s not a gang. It’s not a [clique].
    [¶] . . . [¶] . . . And we don’t even like bang it. . . . [¶] . . . [¶] . . . It’s not like that.”
    Initially, we note that a lack of an objection generally forfeits the right to assert the
    issue on appeal. (Evid. Code, § 353.) “‘It is, of course, “the general rule”’ . . . ‘“that
    questions relating to the admissibility of evidence will not be reviewed on appeal in the
    absence of a specific and timely objection in the trial court on the ground sought to be
    urged on appeal.”’” (People v. Alvarez (1996) 
    14 Cal.4th 155
    , 186.) Here, no timely
    objection was made; therefore, questions relating to the admissibility of the evidence
    need not be reviewed.
    If the matter had been preserved for appeal, we would find no error in admitting
    the recorded interviews. Defendant contends the challenged evidence “was not relevant
    42
    to any issue in the case and was thus inadmissible.” We disagree. Defendant’s
    statements regarding his pending cases were relevant to the alleged on-bail enhancement
    under section 12022.1, subdivision (b). That statute states: “[A]ny person arrested for a
    secondary offense which was alleged to have been committed while that person was
    released from custody on a primary offense shall be subject to a penalty enhancement of
    an additional two years in state prison which shall be served consecutive to any other
    term imposed by the court.” The fact that defendant had pending criminal cases and was
    out on bail was relevant to show that defendant had been released from custody in a
    pending case (i.e., the primary case) at the time he committed the charged offenses in this
    case (i.e., the secondary offenses).
    His statements regarding his prior discharging of a firearm was relevant to the
    issue of mistake. It had some tendency to prove that defendant had prior knowledge and
    experience with firearms and, therefore, the shooting of Marth was not an accident
    attributable to a lack of experience in handling firearms.
    Lastly, defendant’s reference to his “gang” (which he said was not a gang or a
    clique) was tied to his statements regarding his relationship with Marth and his ex-
    fiancée. He said he “ran back to the gang” when he and his fiancée began “having
    problems.” He then met Marth and left his fiancée. Such relationship evidence and the
    inextricable reference to his gang were relevant to the issue of whether he had a motive to
    kill Marth.
    43
    None of the challenged statements are inadmissible under Evidence Code section
    352 or otherwise. The evidence that arguably had the most potential to be prejudicial was
    defendant’s reference to his gang. However, this reference was isolated, brief, and
    promptly minimized by defendant as merely a group of five “friends,” “not a gang” or a
    clique. They “don’t even . . . bang it” and merely “clown” on people. Viewed in its
    context, the reference to a gang was not unduly prejudicial.
    Because the challenged statements were admissible, the court did not err in
    allowing them into evidence and defendant was not deprived of a fair trial.
    We now turn to defendant’s contention that he was deprived of the effective
    assistance of counsel. For an appellant to prevail on this claim, he must show that
    defense counsel was not only deficient, but that this deficiency was prejudicial. “A
    convicted defendant’s claim that counsel’s assistance was so defective as to require
    reversal of a conviction or death sentence has two components. First, the defendant must
    show that counsel’s performance was deficient. . . . Second, the defendant must show that
    the deficient performance prejudiced the defense.” (Strickland v. Washington (1984) 
    466 U.S. 668
    , 687.)
    With regard to the first component, “the defendant must show that counsel’s
    representation fell below an objective standard of reasonableness.” (Strickland v.
    Washington, 
    supra,
     466 U.S. at p. 688.) He “must overcome the presumption that, under
    the circumstances, the challenged action ‘might be considered sound trial strategy.’” (Id.
    44
    at p. 689.) The failure to object to evidence ordinarily involves tactical decisions by
    counsel “and seldom establish[es] a counsel’s incompetence.” (People v. Frierson
    (1979) 
    25 Cal.3d 142
    , 158.)
    Here, defendant argues that “it is not possible to imagine a tactical benefit to
    failing to request that the offending material be redacted from the interview.”
    Additionally, he claims, “[t]he only reasonable explanation is that counsel simply missed
    the references to that conduct in the interviews.” We disagree.
    As noted above, the challenged evidence was relevant to issues in the case and
    admissible. Counsel may have thus reasonably concluded that there was no benefit to
    asserting objections that likely would have been overruled. Moreover, there was a
    possible tactical benefit in allowing the interviews to be played in full—to show the jury
    he had nothing to hide. While the recordings contained information favorable to the
    prosecution, they also included his explanations of the unfavorable evidence. Perhaps
    more importantly, the interviews set the foundation for defendant’s explanation of how
    the events unfolded that day. For example, when defendant testified as to the mosquito
    incident, the prosecutor asked: “You mentioned the mosquito to the police?” Defendant
    responded by citing the interviews: “I mentioned that there was a—that there was
    something that had happened . . . .” He continued on: “Detective Sanfilippo says, ‘So
    there’s no argument going on?’ And I respond, ‘No. We were joking. No, we were, we
    were joking. What happened was, uh, me and my little brother were, oh, we’re like,
    45
    we’re kind of like tag-teamed on a joke, and me and him started laughing, and she got
    mad.’”
    Because the recordings contained both defendant’s rebuttal to the unfavorable
    evidence presented against him, as well as the foundation for the defendant’s version of
    the story, defense counsel may have tactically decided it would be best to have the jury
    hear the recording in its entirety. Because the challenged action may be considered
    “sound trial strategy,” defendant has failed to establish that his counsel was
    constitutionally ineffective.
    Furthermore, even if defendant’s counsel’s failure to object fell below the requisite
    standard of reasonableness, he has failed to establish prejudice. To establish prejudice,
    “[t]he defendant must show that there is a reasonable probability that, but for counsel’s
    unprofessional errors, the result of the proceeding would have been different. A
    reasonable probability is a probability sufficient to undermine confidence in the
    outcome.” (Strickland v. Washington, 
    supra,
     466 U.S. at p. 694.) The defendant “must
    carry his burden of proving prejudice as a ‘demonstrable reality,’ not simply speculation
    as to the effect of the errors or omissions of counsel.” (People v. Williams (1988) 
    44 Cal.3d 883
    , 937.) He has failed to do so. As discussed above, the objections he claims
    his counsel should have made would probably have been overruled because the evidence
    was relevant and admissible. Even if his objections were made and sustained, any
    46
    possible prejudice due to his statements regarding his pending firearms charges and his
    “gang” of five friends is insufficient to undermine confidence in the outcome of this case.
    E. Cross-examination Error
    Defendant contends the trial court erred when it refused to “rein in” the prosecutor
    while he was cross-examining defendant about his other pending firearms case. We
    disagree.
    The relevant testimony is as follows:
    “Q: That’s the one that you got caught in Colton with; right?
    “A: Yes, sir.
    “Q: You had fired that gun before you got caught with it, didn’t you?
    “A: Yes, sir.
    “Q: Fired it while you were in your vehicle, didn’t you?
    “A: No, sir.
    “Q: Shell casings were found in your vehicle; right?
    “A: No, they were found in the gun. [¶] . . . [¶]
    “Q: All right. Now, the .32 or .38 that you were caught in Colton with, you
    understand that people had seen you shooting that just before you were caught with it—
    not at a gun range but on the street?
    “[DEFENSE COUNSEL]: I’m going to object. This is [Evidence Code section]
    1101 evidence. Outside the scope and irrelevant.
    47
    “[PROSECUTOR]: Your Honor, it goes to impeachment. It’s inconsistent—
    “THE COURT: Well, I’ll give you a little leeway, but you’re wandering off into
    [Evidence Code section] 352 territory here.
    “[PROSECUTOR:] Within hours of being caught with this gun in Colton,
    someone had seen you firing that gun from your vehicle in Riverside, hadn’t they?
    “A: No.
    “Q: Well, it was reported, though, wasn’t it?
    “A: Reported—alleged does not mean it’s the truth. No, sir. I was on the
    freeway, and I went straight to Colton.
    “Q: Coincidentally, you got arrested in Colton two hours after someone reported
    you were shooting a gun from your car. Is that what you’re saying?
    “A: I never seen the reports on that, if that’s what you’re saying.”
    When the admissibility of evidence is at issue, abuse of discretion is the
    appropriate standard of review. (People v. Rowland (1992) 
    4 Cal.4th 238
    , 264.) Under
    this standard, a trial court’s ruling “will not be disturbed except on a showing the trial
    court exercised its discretion in an arbitrary, capricious, or patently absurd manner that
    resulted in a manifest miscarriage of justice.” (People v. Rodriguez (1999) 
    20 Cal.4th 1
    ,
    9-10.)
    The trial court did not abuse its discretion. As defendant notes, the court was
    clear: “[E]vidence that [defendant] was familiar with guns and had shot them before
    48
    would be admissible to show absence of mistake; however, it must not be used to show
    his ‘proclivity’ to use guns.” Based on this explanation, the court’s ruling—that the
    evidence was admissible for the purpose of showing the absence of mistake—was not an
    abuse of discretion. There was no error.
    F. Failure to Give a Limiting Instruction
    Defendant next claims his federal due process rights were violated because the
    court failed to give a limiting instruction, CALCRIM No. 375. CALCRIM No. 375
    explains for what purpose the evidence of defendant’s prior use of firearms could be
    used. We conclude that the court had no sua sponte duty to instruct on the limited
    admissibility of this evidence. Defendant’s argument therefore fails.
    In People v. Collie (1981) 
    30 Cal.3d 43
    , the California Supreme Court discussed
    the trial court’s duty to give a limiting instruction regarding evidence of past criminal
    conduct: “Although the trial court may in an appropriate case instruct sua sponte on the
    limited admissibility of evidence of past criminal conduct, we have consistently held that
    it is under no duty to do so.” (Id. at p. 63.) The court continued: “Neither precedent nor
    policy favors a rule that would saddle the trial court with the duty either to interrupt the
    testimony sua sponte to admonish the jury whenever a witness implicates the defendant
    in another offense, or to review the entire record at trial’s end in search of such
    testimony. There may be an occasional extraordinary case in which unprotected evidence
    of past offenses is a dominant part of the evidence against the accused, and is both highly
    49
    prejudicial and minimally relevant to any legitimate purpose. In such a setting, the
    evidence might be so obviously important to the case that sua sponte instruction would be
    needed to protect the defendant from his counsel’s inadvertence. But we hold that . . . in
    general, the trial court is under no duty to instruct sua sponte on the limited admissibility
    of evidence of past criminal conduct.” (Id. at p. 64, fn. omitted.)
    Indeed, the Bench Notes to CALCRIM No. 375 cite Collie and state: “The court
    is only required to give this instruction sua sponte in the ‘occasional extraordinary case
    in which unprotected evidence of past offenses is a dominant part of the evidence against
    the accused, and is both highly prejudicial and minimally relevant to any legitimate
    purpose.’” (Bench Notes to CALCRIM No. 375, supra, p. 155, citing People v. Collie,
    supra, 30 Cal.3d at pp. 63-64.)
    The present case is not an extraordinary case in which “evidence of past offenses
    is a dominant part of the evidence against the accused.” The questions regarding
    defendant’s firearm use were few and limited. This is not the “occasional extraordinary
    case” the Collie court imagined. Therefore, the court had no sua sponte duty to instruct
    on the limited admissibility of the evidence. Thus, with no request by counsel and no sua
    sponte duty to instruct, the trial court did not err by failing to give a limiting instruction.
    G. The On-bail Enhancement
    The jury found true an enhancement allegation under section 12022.1 that
    defendant committed the murder and possession of marijuana for sale charged in this case
    50
    while released from custody pending trial on another felony offense. Based on this
    finding, the court imposed a two-year sentence enhancement. The court then granted the
    prosecutor’s motion to dismiss without prejudice the prior felony offense referenced in
    the enhancement allegation. Defendant contends the two-year on-bail enhancement
    should be stricken because defendant was never convicted of the prior felony offense.
    Section 12022.1, subdivision (b) states: “Any person arrested for a secondary
    offense which was alleged to have been committed while that person was released from
    custody on a primary offense shall be subject to a penalty enhancement of an additional
    two years in state prison which shall be served consecutive to any other term imposed by
    the court.”
    Section 12022.1, subdivision (a)(1) defines “primary offense” as “a felony offense
    for which a person has been released from custody on bail or on his or her own
    recognizance. . . .” “‘Secondary offense’ means a felony offense alleged to have been
    committed while the person is released from custody for a primary offense.” (§ 12022.1,
    subd. (a)(2).)
    Subdivision (d) of section 12022.1 explains how the section operates when the
    secondary offense is adjudicated first: “Whenever there is a conviction for the secondary
    offense and the enhancement is proved, and the person is sentenced on the secondary
    offense prior to the conviction of the primary offense, the imposition of the enhancement
    shall be stayed pending imposition of the sentence for the primary offense. The stay shall
    51
    be lifted by the court hearing the primary offense at the time of sentencing for that
    offense and shall be recorded in the abstract of judgment. If the person is acquitted of the
    primary offense the stay shall be permanent.”
    In People v. Meloney (2003) 
    30 Cal.4th 1145
    , the court explained the application
    of this enhancement in greater detail: “[W]hen . . . the secondary offense is adjudicated
    first and an on-bail enhancement is proved, the secondary-offense court may proceed in
    one of two ways: (1) The secondary-offense court may—following the express terms of
    section 12022.1, subdivision (d)—stay ‘imposition of the enhancement.’ . . . (2)
    Alternatively, the secondary-offense court may immediately consider whether to strike
    the enhancement under section 1385, or to impose the enhancement as part of the
    defendant’s sentence. If the court concludes it is appropriate to exercise discretion to
    strike the enhancement, it may do so. If the court determines to impose the enhancement,
    it may do so, but it also must stay execution of that aspect of the sentence, pending
    resolution of the prosecution of the primary offense. If the court imposes the
    enhancement and stays its execution, that aspect of the imposed sentence becomes
    effective immediately upon the primary-offense court’s order lifting the stay after the
    defendant has been convicted of the primary felony offense.” (Id. at p. 1149.)
    Here, the primary offense had not been adjudicated when defendant was sentenced
    in this case. Because the secondary offense was adjudicated first and the on-bail
    enhancement was proved, the court should have either “stay[ed] ‘imposition of the
    52
    enhancement,’” stricken the enhancement under section 1385, or “impose[d] the
    enhancement . . . but . . . stay[ed] [its] execution . . . pending resolution of the . . .
    primary offense.” (People v. Meloney, 
    supra,
     30 Cal.4th at p. 1149, second italics
    added.) Here, the court imposed the enhancement, but erroneously failed to stay its
    execution. We will modify the judgment to stay the execution of the enhancement term.
    Defendant contends the dismissal of the primary offense precludes execution of
    the enhancement term and the stay should therefore be permanent. We disagree.
    According to the statute: “If the person is acquitted of the primary offense the stay shall
    be permanent.” (§ 12022.1, subd. (d), italics added.) Defendant was not acquitted of the
    primary offense. Rather, the primary offense was dismissed without prejudice. As the
    Attorney General correctly states: “[T]he prosecutor retains the authority, within the
    statutory limitations, to re-file and commence prosecution of that charge against
    [defendant].” Because defendant can still be charged and convicted of the primary
    offense, the stay should not be made permanent.
    H. Cumulative Error
    Lastly, defendant asserts the cumulative effect of the errors was so prejudicial as
    to require reversal of the judgment. We disagree. There were three errors——the failure
    to stay the execution of the on-bail enhancement, the insufficiency of the evidence of
    premeditation and deliberation, and the failure to read CALCRIM No. 225. We correct
    the first two of these; only the failure to read CALCRIM No. 225 was error, but harmless.
    53
    As such, there can be no accumulation of error sufficient to warrant reversal of the
    conviction.
    IV. DISPOSITION
    The judgment is modified such that the conviction of first degree murder is
    reduced to second degree murder and the execution of the on-bail enhancement under
    section 12022.1, subdivision (b) is stayed pending final resolution of the primary offense.
    As modified, the judgment is affirmed. On remand, the court shall resentence defendant
    in light of the modified judgment. Following resentencing, the trial court is directed to
    prepare a minute order and an amended abstract of judgment to reflect the modification
    of the sentence and to forward a certified copy of the amended abstract to the Department
    of Corrections and Rehabilitation.
    CERTIFIED FOR PARTIAL PUBLICATION
    KING
    J.
    We concur:
    HOLLENHORST
    Acting P. J.
    CODRINGTON
    J.
    54