Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Super. Ct. No. RIF125009 Ronald L. Taylor, (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and William M. Wood, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
After taking methamphetamine and staying awake for several days, defendant was driving in Cathedral City when he saw his ex-girlfriend in her car with a man seated in the passenger’s seat. Defendant became angry and followed her to the Cabazon area. During this time, he shot at the driver’s side of her car with an AK-47 rifle. When a California Highway Patrol officer tried to stop defendant, defendant shot at him and drove in the wrong direction on the freeway, and a high-speed chase ensued. The chase culminated in a gun battle. Defendant was finally stopped when his gun jammed and the officer shot him in the stomach.
A jury found defendant guilty of one count of attempted willful, premeditated, and deliberate murder and one count of attempted premeditated and deliberate murder of a peace officer (Pen. Code, §§ 664/187, subd. (a)), being a felon in possession of a firearm (§ 12021, subd. (a)(1)), and negligent discharge of a firearm (§ 246.3). The jury also found as enhancements to the attempted murders that defendant personally and intentionally discharged a firearm (§ 12022.53, subd. (c)) and that the attempted murders were premeditated and deliberate. Defendant admitted he had suffered a prior conviction within the meaning of section 667.5, subdivision (b). The trial court sentenced defendant to a total term in state prison of two life terms with minimum parole terms of 7 and 15 years, plus a determinate term of 43 years.
All further statutory references are to the Penal Code unless otherwise specified.
Defendant now contends:
1. The trial court committed reversible error when it failed to instruct the jury on the elements of premeditated, deliberate, and willful attempted murder.
2. The trial court erred when it failed to instruct the jury on voluntary intoxication as a defense to premeditated and deliberate attempted murder.
3. He is entitled to presentence custody and conduct credits for the time he spent in custody on the instant crimes and on a parole hold.
4. The trial court prejudicially erred by sentencing him to a life term with a minimum parole period of seven years on one of the attempted premeditated and deliberate murder convictions.
5. The abstract of judgment should be corrected to reflect that he was found guilty by a jury, not due to a guilty plea.
We find no prejudicial trial error but agree that defendant’s sentence should be modified to award him additional presentence custody and conduct credits, to correct the term on the attempted premeditated and deliberate murder conviction, and to correct the abstract of judgment to reflect he was convicted by a jury.
I
FACTUAL BACKGROUND
A. Facts
Elda Alvarez had dated defendant for about two years prior to July 21, 2005, but they were in the process of breaking up. During their relationship, they had used methamphetamine on a daily basis. For about two days prior to July 21, Alvarez had been taking methamphetamine and partying with her friends at the Dorel Hotel in Cathedral City. About 7:00 a.m., Alvarez left the hotel with Albert Chai; she was driving her father’s Toyota, and Chai was in the passenger’s seat.
Alvarez was granted immunity to testify pursuant to section 1324.
Alvarez had several prior convictions, including credit card fraud. She had been detained in jail prior to the trial in order to secure her testimony.
Chai and Alvarez were just friends.
As Alavarez and Chai were driving in Cathedral City, defendant suddenly drove up on the passenger’s side of Alvarez’s car. Chai rolled down his window. Defendant asked Chai, “Who the fuck are you[?]” Alvarez told defendant that Chai was doing her a favor by helping her pick up another car. Alvarez asked defendant to stop following her. She was scared.
Alvarez continued to drive, and defendant followed behind her. While she was driving, she heard one or two gunshots. She thought the gunshots were directed at her. Alvarez called 911. At this point, Alvarez did not see any damage to her car, although her side rear view mirror had been shot out.
At trial, Alvarez did not recall telling police officers during an interview prior to trial that she was shot at twice. However, a transcript of the interview shows that she did state to officers that defendant shot at her and Chai while they were in her car. She also stated she noticed her driver’s side rear-view mirror had been shot out.
Defendant called Alvarez on her cellular telephone. He asked her to stop and to let Chai out of her car. Alvarez accused defendant of shooting at her. Alvarez hung up the phone and did not stop. Chai told Alvarez not to stop. Despite Chai’s protests, Alvarez pulled into a gas station and let Chai out of her car. She pulled out of the gas station and got onto Highway 111. Defendant called her again. He wanted her to pull over, but she refused.
Alvarez reached Interstate 10 and began driving west on the freeway. She exited the freeway at Main Street in Cabazon. She saw a California Highway Patrol car parked at the end of the off ramp. Alvarez pulled into a Shell gas station and drove around to the back of the station. She then lost sight of defendant.
Alvarez drove back to the front of the station and ended up right in front of defendant, who was now out of his car. She jumped out of her car. Defendant told her to get back in her car. Defendant had a gun in his hands. She ran back toward the gas station and hid behind a pole. She recalled hearing two gunshots while she ran. While she hid behind the pole, she heard “pinging” sounds, which she believed were gunshots ricocheting off things at the gas station. Alvarez claimed that defendant was not shooting at her.
Alvarez also stated in her pretrial interview that she did not see defendant pointing his rifle at her at the gas station.
Alvarez got back in her car and tried to leave the location. She was stopped by a California Highway Patrol officer and ordered out of her car. Alvarez had methamphetamine secreted in her bra. While she was talking to the police after the shooting, she tried to hide the methamphetamine in the dirt near where she was detained.
California Highway Patrol Sergeant Kirk Van Orsdel was assigned to patrol the San Gorgonio Pass area, which included Banning, Beaumont, and Cabazon, in Riverside County. At 7:00 a.m. on the date of the incident, he was in a marked patrol car patrolling his area.
Sometime after 7:00 a.m., Sergeant Van Orsdel was driving eastbound on Interstate 10 in Cabazon near Main Street. A radio call reported a possible shooting between two cars in that area. The report indicated that the two cars involved were gray and black.
Sergeant Van Orsdel exited the freeway at Main Street. He positioned himself at the off-ramp of the westbound 10 freeway so he could see traffic on the freeway. At this point, he observed a black Toyota exit the freeway at a high rate of speed being closely followed by a silver Lincoln. Sergeant Van Orsdel could see a female driving the Toyota, who was later identified as Alvarez, and a male, identified as defendant, driving the Lincoln.
They both passed Sergeant Van Orsdel, and defendant made eye contact with him. Alvarez and defendant both drove into the nearby Shell gas station. Alvarez drove to the back of the station. Sergeant Van Orsdel accelerated and came up behind the Lincoln driven by defendant.
Defendant drove around the gas station, squealing his tires, and then got back on the street. Sergeant Van Orsdel followed defendant and lost sight of Alvarez. Defendant entered the westbound 10 freeway; Sergeant Van Orsdel followed behind him with lights and siren activated. Defendant pulled over to the shoulder. Sergeant Van Orsdel thought that defendant was stopping for him, so he pulled up behind him. Defendant suddenly made a U-turn and began driving eastbound on the westbound freeway.
Sergeant Van Orsdel called for backup. Defendant cut across all lanes of traffic and entered the on-ramp to Main Street. Sergeant Van Orsdel followed him and ended up positioned down the street facing defendant. As Sergeant Van Orsdel contemplated how he could stop defendant, a bullet came through his windshield. It made a hole was in the windshield, and glass flew into Sergeant Van Orsdel’s face. The bullet passed just to the left of his head.
Defendant then drove past Sergeant Van Orsdel and got back on the westbound 10 freeway. After driving on the freeway for a distance, defendant again pulled over to the shoulder, appearing to be yielding to Sergeant Van Orsdel’s lights and siren. Sergeant Van Orsdel got out of his vehicle with his gun drawn. Defendant again made a U-turn into traffic lanes going in the wrong direction on the freeway. Sergeant Van Orsdel heard another gunshot but did not see a weapon. Sergeant Van Orsdel opened fire on defendant’s vehicle, shooting toward the passenger’s seat of the car. He emptied his gun and reloaded.
Sergeant Van Orsdel got back in his car and drove after defendant. Defendant was driving at a high rate of speed. Defendant again crossed all lanes of traffic and exited on the on-ramp. By the time Sergeant Van Orsdel had caught up with defendant, defendant’s car was parked, and the driver’s side door was open. Defendant did not appear to be in the vehicle. Sergeant Van Orsdel then saw defendant walking near a cement barrier that lined the street. Defendant was holding a rifle. Sergeant Van Orsdel felt he was being ambushed by defendant.
Sergeant Van Orsdel exited his patrol vehicle and drew his weapon. Defendant got back into the driver’s seat of his car. Sergeant Van Orsdel shot at defendant. Defendant drove off at a high rate of speed. Sergeant Van Orsdel got back in his car and followed defendant. Sergeant Van Orsdel was running out of ammunition for his pistol. He unlocked his rifle, chambered a round, and set the rifle on the front seat.
Defendant was driving in excess of 100 miles per hour. Defendant’s left front tire blew out in front of the Cabazon outlet stores. Defendant approached the entrance to the Morongo Indian Reservation. He drove on the wrong side of the road past a guard kiosk and pulled to a stop just past the kiosk. Sergeant Van Orsdel stopped within 45 feet of defendant. Defendant quickly exited his car, leaned over the hood of the car with an AK-47 rifle held in both of his hands, and aimed the rifle at Sergeant Van Orsdel.
David Broadfoot, who was manning the guard shack, testified that defendant had also pointed his rifle at him. Broadfoot was injured when he ducked for cover.
Sergeant Van Orsdel was still seated in the driver’s seat of his vehicle. Defendant began firing at Sergeant Van Orsdel. A volley of bullets shattered the windshield, and the officer was peppered with glass; his head was hurting. He was not hit by any bullets, but when he was examined later, he had bullet fragments in his arm. Sergeant Van Orsdel shot back at defendant with his rifle.
During a slight pause in gunfire, Sergeant Van Orsdel was able to get out of his car. Defendant’s car started to roll back toward Sergeant Van Orsdel. Defendant shot at Sergeant Van Orsdel again. Sergeant Van Orsdel was having a hard time seeing because blood was running down his face into his eyes from all of the glass cuts. Sergeant Van Orsdel just kept shooting at defendant hoping that defendant would be unable to aim back at him. Sergeant Van Orsdel was “out gunned” because defendant’s gun had more bullets in the magazine than the officer’s rifle, and it was more powerful. Defendant was using his car as a shield, popping up and down behind the car in order to take shots at the officer.
After this second round of gunfire, defendant’s car rolled away from him, and defendant was left standing in the open. Sergeant Van Orsdel shot defendant in the stomach. Defendant leaned forward and grabbed himself momentarily. Sergeant Van Orsdel ran out of bullets. Defendant was still holding his rifle and did not fall to the ground. Sergeant Van Orsdel reloaded his rifle. By this time, defendant had recovered and appeared to be aiming his rifle at Sergeant Van Orsdel with the intent to shoot at him, but defendant’s gun jammed.
Defendant forcefully threw his gun to the ground. Defendant then fell to the ground and assumed a spread eagle position. Sergeant Van Orsdel moved to the back of his car and waited for backup. Backup officers arrived and approached defendant. Sergeant Van Orsdel held his rifle to defendant’s head and told him that he would kill him if he moved. While he was being handcuffed, defendant said in a calm, matter-of-fact tone, that Sergeant Van Orsdel was not a good shot.
After the shooting, a search of Sergeant Van Orsdel’s car revealed that some of the bullets went through Sergeant Van Orsdel’s seat and were inches away from hitting his body. The left rear door window on Sergeant Van Orsdel’s patrol vehicle had been shot out. There were also bullet holes in the same door and in the driver’s side door, and the spotlight was shot out. The front windshield had approximately four bullet holes.
Sumaya Valenzuela was at the Shell gas station that night. She heard what she believed were fireworks, then saw Alvarez run to the gas station. Valenzuela saw defendant chasing Alvarez. He was holding a rifle and pointed it at Alvarez. After defendant left, Alvarez attempted to leave the scene. While she was being detained, Valenzuela saw her take something out of her bra and hide it in the dirt.
The manager of the Shell gas station did not see defendant shoot at Alvarez while they were at the gas station. However, when she checked the gas pumps the following day, she found a bullet hole in one of the pumps. Glass fragments, copper bullet jackets, and shell casings were found at the scene.
B. Defense
Defendant testified on his own behalf and admitted that he was addicted to methamphetamine. When he was smoking methamphetamine and getting high, he would not sleep or shave. Around July 2005, defendant was doing from an “eight-ball” to a quarter ounce of methamphetamine a day. When he was high, he was forgetful and very paranoid. In July 2005, defendant was still dating Alvarez.
Defendant had numerous prior convictions and was on parole at the time he committed the instant offenses.
At the time of the incident, defendant had been taking methamphetamine nonstop since July 18, 2005. On July 21, 2005, defendant was with a friend “John” in the Beaumont or Banning area. Defendant had not slept for a week. They had finished all of their “dope.” John asked if defendant knew someone who would trade the gun for drugs. Defendant believed that he did, so John gave him a gun and let him borrow his silver Lincoln. Defendant believed that the Lincoln belonged to John. Defendant smoked methamphetamine just before he left.
The Lincoln had been reported stolen on April 9, 2005.
As defendant was driving, he observed Alvarez driving in another car. He pulled up beside her. After this, all defendant could recall was that he was chased by a police officer and shot at; he did not recall shooting back. He did not recall shooting at Alvarez and Chai. Defendant recalled being at the Shell station but nothing after that. Defendant was shot in the left hand, back, and shoulder. Defendant did not recall receiving medical treatment. Defendant claimed he would not have committed the crimes if he had not been on drugs.
Defendant’s sister, Irene Sanchez, testified that defendant had a drug problem. She saw him on July 19, 2005, and he was unshaven and looked tired.
Dr. Thomas MacSpeiden, a clinical psychologist, testified as an expert to the effects of methamphetamine, including the stages of use, which he explained went from a rush when the drug is initially ingested to a euphoric period lasting for four or five hours. Whether a person was paranoid while on methamphetamine depended upon tolerance and the amount of methamphetamine taken. Dr. MacSpeiden indicated that taking methamphetamine affects the user’s memory; the person does not acquire information because they are not focused. Methamphetamine users do not hallucinate.
A person high on methamphetamine was still able to function and could be very “adroit.” A person with 500 nanograms of methamphetamine per milliliter of blood in his system was more likely to have delusions and be psychotic. However, there was no way of knowing for sure how much a person would be distorted with this amount of methamphetamine in his system. He had not seen a case of total amnesia with methamphetamine use. A frequent user of methamphetamine would build up a tolerance. Persons on methamphetamine have a reduced feeling for pain, especially on the skin.
C. Rebuttal
Maureen Black, a toxicologist, tested defendant’s blood 15 to 16 hours after the crime. The level of methamphetamine in defendant’s blood was 258 nanograms of methamphetamine per milliliter of blood. There was also 56 nanograms per milliliter of blood, which was broken down methamphetamine. A typical result for someone abusing methamphetamine was between 200 to 250 nanograms of methamphetamine. In defendant’s case, if he had taken methamphetamine 15 to 16 hours prior to the blood test, and not taken any in the interim time, defendant would have had at least 500 nanograms of methamphetamine per milliliter of blood in his system at the time he committed the crimes.
Black opined that a person with this level of methamphetamine in his body would likely be hyperactive and physically perspiring. The person would have rapid speech and might stay up for days. A daily user may be better at controlling these symptoms. Black indicated that a person develops tolerance for methamphetamine. A person could suffer from delusions with 500 nanograms in their system. A loss of memory was usually not associated with methamphetamine use because the person is usually wakeful and alert.
II
FAILURE TO INSTRUCT ON PREMEDITATION, DELIBERATION, AND WILLFULNESS FOR ATTEMPTED MURDER
Defendant contends that the trial court committed reversible error by failing to sua sponte instruct the jury with Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 601, which defines premeditated, deliberate, and willful attempted murder; since the jury made a true finding on premeditation and deliberation without the aid of an instruction defining the term, reversal of the finding and remand to the trial court for retrial on the issue of premeditation and deliberation or resentencing are required.
Section 664, subdivision (a) provides that a defendant convicted of attempted murder is subject to a sentence of life with the possibility of parole if the jury finds that the attempted murder was willful, deliberate, and premeditated, as defined in section 189; however, a defendant convicted of attempted murder without premeditation and deliberation is subject to a determinate term of five, seven, or nine years.
Initially, we agree with defendant that the jury should have been instructed with CALCRIM No. 601 or its equivalent. “‘“It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.]’” (People v. Breverman (1998) 19 Cal.4th 142, 154.) Accordingly, a trial court has a sua sponte duty to instruct on the principles of law that are relevant to the case, including instruction on all the elements of the offense. (People v. Cummings (1993) 4 Cal.4th 1233, 1311.)
A jury must be given explanatory instructions “where a term used in an instruction has a specific or technical meaning peculiar to the law. . . .” (People v. Ryan (1999) 76 Cal.App.4th 1304, 1318-1319.) “Deliberate” has been defined as “‘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.’” (People v. Perez (1992) 2 Cal.4th 1117, 1123.) “Premeditation” has been defined as “‘considered beforehand.’” (Ibid.) “Premeditation and deliberation can occur in a brief interval.” (People v. Memro (1995) 11 Cal.4th 786, 862-863.)
We have found no cases directly on point addressing whether the trial court has a sua sponte duty to instruct a jury with the definition of premeditation and deliberation as embodied in CALCRIM No. 601. The People rely on People v. Anderson (1968) 70 Cal.2d 15. In Anderson, the court concluded that the terms “premeditation” and “deliberation” were given their ordinary dictionary meanings by the Legislature. (Id. at p. 26.) The People contend that since the terms had no special legal meaning, no further instruction to the jury was required. However, in a later case -- People v. Perez (1992) 2 Cal.4th 1117, 1124 -- the California Supreme Court assumed that “premeditation” and “deliberation” had “legal definition[s].” Both cases involved the sufficiency of the evidence, not instructional error.
In the bench notes to CALCRIM No. 601, trial courts are advised to give the instruction sua sponte. (Bench Note to CALCRIM No. 601 (2006) p. 430.) As previously noted, the trial court is required to sua sponte instruct the jury on the general principles of law relevant to the issues raised by the evidence. (People v. Breverman, supra, 19 Cal.4that p. 154; see also People v. Williams (2006) 40 Cal.4th 287, 325.) Moreover, as will be discussed, post, premeditation and deliberation constituted an element of the offense. The jury was not given any instruction on premeditation and deliberation or the finding it was required to make. We believe that the trial court should have instructed the jury on premeditation and deliberation as defined in CALCRIM No. 601 in the instant case, as no other instruction on premeditation and deliberation was given. Its failure to do so constituted error. The question remains as to whether such error is subject to harmless error analysis.
In People v. Bright (1996) 12 Cal.4th 652, 669, the California Supreme Court concluded that section 664, subdivision (a) constituted a penalty provision and not an element of the crime. However, in People v. Seel (2004) 34 Cal.4th 535, the California Supreme Court revisited the issue based on the United States Supreme Court’s intervening decision in Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi). In Apprendi, the court held, “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) In Seel, the question before the court was not whether a finding of premeditation or deliberation had been made, but rather whether there was insufficient evidence presented to support premeditation and deliberation. (Seel, at p. 544.)
The Seel court concluded, “In contrast to a prior conviction allegation, a section 664(a) allegation requires the trier of fact to determinate whether ‘the attempted murder was willful, deliberate, and premeditated’ before imposing the term of life imprisonment with the possibility of parole. ‘The defendant’s intent in committing a crime is perhaps as close as one might hope to come to a core criminal offense “element.”’ [Citation.] Applying the rationale of Apprendi to this case, we conclude that ‘[w]hereas recidivism “does not relate to the commission of the offense” itself, [citation], [section 664(a)’s] inquiry goes precisely to what happened in the “commission of the offense.”’ [Citation.] Apprendi compels the conclusion that section 664(a) constitutes an element of the offense. [Citation.]” (People v. Seel, supra, 34 Cal.4th at p. 549.)
The failure to instruct the jury on premeditation and deliberation in this case constituted a failure to instruct the jury on an element of the offense. “[F]ailure to instruct the jury on an element of the offense[] is subject to harmless error analysis under Chapman v. California [(1967)] 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705], i.e., whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict. [Citation.]” (People v. Magee (2003) 107 Cal.App.4th 188, 194.) “‘To say that an error did not contribute to the verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.’ [Citation.]” (People v. Mayfield (1997) 14 Cal.4th 668, 774.) Where the record contains “overwhelming” and “uncontroverted” evidence supporting an element of the crime, the error is harmless. (Neder v. United States (1999) 527 U.S. 1, 17-18 [119 S.Ct. 1827, 144 L.Ed.2d 35]; see also People v. Flood (1998) 18 Cal.4th 470, 504-507 failure to instruct on element of offense may be considered harmless beyond a reasonable doubt if evidence of element is overwhelming and uncontradicted and the issue is effectively conceded by the defense].)
Here the evidence overwhelmingly shows that the defendant possessed premeditation and deliberation, as defined, ante, when he shot at Alvarez and Sergeant Van Orsdel.
Defendant armed himself with an AK-47 rifle prior to driving in a stolen car that night. He purposefully followed Alvarez after he saw her driving with another man shortly after they had broken up. Defendant yelled obscenities at the car. At some point, the record supports that defendant shot at the driver’s side of Alvarez’s car. The rear view window on the driver’s side was shot out. Although Alvarez appeared to believe that defendant did not intend to shoot at her, the fact remains that defendant shot the driver’s side of Alvarez’s car after he saw her with another man and after he relentlessly pursued her. This clearly constituted premeditated and deliberate attempted murder.
Furthermore, when defendant encountered Sergeant Van Orsdel, he immediately shot at him. Defendant evaded Sergeant Van Orsdel, pretending to pull over and then driving away, all the while continuing to shoot at him. During their final gun battle, defendant immediately exited his car, reached over the hood of the car, and shot directly at Sergeant Van Orsdel. Defendant hid behind his car and then jumped up to shoot again. Defendant only stopped when his gun jammed and he was shot in the stomach. There is no doubt that a properly instructed jury would have found beyond a reasonable doubt that defendant committed premeditated and deliberate attempted murder against Sergeant Van Orsdel.
Furthermore, although argument by the prosecution does not substitute for the court’s failure to instruct on the meaning of premeditated, willful, and deliberate attempted murder (see People v. Miller (1996) 46 Cal.App.4th 412, 426, fn. 6), the fact the prosecutor correctly defined this concept is properly considered in the harmless error analysis. (See People v. Champion (1995) 9 Cal.4th 879, 949; People v. Visciotti (1992) 2 Cal.4th 1, 58-59.)
The prosecutor advised the jury that it was required to make a finding whether there was intent to kill and whether defendant committed willful, deliberate, and premeditated attempted murder. The prosecutor indicated that “[w]illful just means intentional.” The prosecutor then stated, “Deliberate means consider the consequences, and premeditated means before hand. Those kind of go together. Consider the consequences before hand.” The prosecutor further stated, “Because the law does not set out any time frame, there’s no requirement, for example, that the defendant have considered killing for an hour or two hours or three hours before he actually did it. The amount of time can be instantaneous. It can be just a moment. . . . [¶] . . . [¶] . . . There’s no requirement that he have this elaborate scheme, you know, plan that has gone on for days or weeks to kill somebody.” The prosecutor summed up by stating, “The bottom line is: Did he consciously decide to kill before trying to kill? That’s really what you are here to decide.”
The prosecutor argued that before defendant shot at Alvarez and Sergeant Van Orsdel, he armed himself with an AK-47 rifle. This showed his willingness to kill. Defendant shot within one foot of Alvarez’s head. At the end of the prosecutor’s rebuttal argument, he advised the jury that if it found defendant guilty in counts 1 and 2, it must make a further finding as to “whether or not it was willful, deliberate, and premeditated murder.”
Based on the argument by the prosecution, the jury was aware that they not only had to find an intent to kill, but also that prior to shooting the AK-47, defendant had to have thought about killing both Alvarez and Sergeant Van Orsdel. The prosecution gave an appropriate definition of both “premeditation” and “deliberation.” Based on the overwhelming evidence of premeditation and deliberation, coupled with the prosecution essentially instructing the jury with CALCRIM No. 601, the error in this case was clearly harmless beyond a reasonable doubt.
III
VOLUNTARY INTOXICATION
Defendant next contends that the trial court erred by failing to instruct the jury on voluntary intoxication as it affected defendant’s ability to commit willful, premeditated, and deliberate murder, and that the failure to instruct constituted reversible error. Defendant also contends he received ineffective assistance of counsel.
A. Additional Factual and Procedural Background
Defense counsel requested that the jury be instructed with CALCRIM No. 3426. The prosecution did not object. The trial court then inquired, “So we would give this with regard to Count[s] 1 and 2?” Defense counsel responded yes. The trial court stated, “Then the specific intent would be intent to kill?” Defense counsel again responded yes. The trial court indicated that it had modified paragraph one of the instruction as follows: “[Y]ou may consider evidence, if any, of the defendant’s voluntary intoxication only in a limited way. You may consider the evidence only in deciding whether the defendant acted or failed to do an act with the specific intent required in Counts 1 and 2, that is intent to kill.”
The trial court asked defense counsel, “And you’re not getting this instruction as it relates to any of the other specific intent crimes, are you[?]” Defense counsel responded no. Defense counsel asked that the court insert the word “specific” so that the instruction would read, “the People have the burden of proving the defendant acted or failed to act with the specific intent to kill.” The trial court then inquired about the final paragraph of the instruction, which stated, “You may not consider evidence of voluntary intoxication for any other purpose. Voluntary intoxication is not a defense to any other intent charges.” The parties decided that it should just be “other charges,” not “other intent charges.”
Prior to the instructions being given, the trial court indicated that it intended to give the People’s special instruction No. 1 relating to section 22. Defense counsel objected on the ground that CALCRIM No. 3426 was adequate to instruct the jury. The jurors were instructed with CALCRIM No. 3426 and the People’s special instruction No. 1. At no time did defense counsel ask that voluntary intoxication be related to premeditation and deliberation.
The jury was instructed, “You may consider evidence, if any, of the defendant’s voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted or failed to do an act with the specific intent required in Counts I & II, that is, specific intent to kill. [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] In connection with the charge of Attempted Murder, the People have the burden of proving beyond a reasonable doubt that the defendant acted or failed to act with the specific intent to kill. If the People have not met this burden, you must find the defendant not guilty of Counts I and II. [¶] You may not consider evidence of voluntary intoxication for any other purpose. Voluntary intoxication is not a defense to any other charge.”
The special instruction as given to the jury stated, “No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in that condition. Evidence of voluntary intoxication shall not be considered by you or negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, or malice aforethought. [¶] Evidence of voluntary intoxication may be considered by you solely on the issue of whether or not the defendant actually formed the required specific intent in the case.”
B. Analysis
Evidence of voluntary intoxication is inadmissible to negate a defendant’s capacity to form any mental state but is admissible “solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.” (§ 22, subd. (b).)
Here, the parties dispute whether the trial court had a sua sponte duty to instruct the jury regarding voluntary intoxication as it related to premeditation and deliberation. Defendant contends that once the trial court instructed the jury on voluntary intoxication for specific intent to kill, it had a duty to correctly and fully instruct the jury on the relation between voluntary intoxication and all mental states (see People v. Castillo (1997) 16 Cal.4th 1009, 1015-1016). The People, on the other hand, claim that consideration of voluntary intoxication in determining whether defendant had committed premeditated or deliberate attempted murder was a pinpoint instruction (see People v. Saille (1991) 54 Cal.3d 1103, 1119), and therefore the trial court had no obligation to give the instruction. Since we find that any conceivable error in failing to instruct the jury was harmless, we need not resolve the issue.
Although it would have been preferable in this case for the trial court to have specifically instructed that evidence of voluntary intoxication may be considered in determining premeditation and deliberation, any error was harmless under either the California or federal constitutional standard of prejudice. (Chapman v. California, supra, 386 U.S. at p. 24; People v. Watson (1956) 46 Cal.2d 818, 836.)
Defendant argues that the instructional error in this case is reversible per se because it completely removed a defense shown by the evidence that was relied upon by defendant, citing People v. Quach (2004) 116 Cal.App.4th 294, 303. Initially, since defendant did not request that the instruction apply to premeditation and deliberation in the lower court, it is not entirely clear whether he was relying on intoxication as a defense to premeditation and deliberation. Further, the jury was instructed on the defense as to specific intent, and he would have been acquitted had it concluded that he could not form specific intent. Hence, the instant error is subject to harmless error analysis.
Initially, although there was sufficient evidence of defendant’s intoxication to support the instruction, it was not particularly strong evidence. Although there was a significant amount of methamphetamine in defendant’s blood stream at the time he committed the offenses, there was evidence that his tolerance to the drug could be a factor in whether he was able to function. Defendant admitted he was addicted to methamphetamine. Furthermore, he was able to drive a car, shoot a gun while driving the car at a high rate of speed, and shoot directly at the victims. Defendant also was able to duck and cover during the shoot out with Sergeant Van Orsdel, showing he was cognizant of the need to protect himself.
Furthermore, as previously noted, the jury was properly instructed on voluntary intoxication as it related to defendant’s ability to form the specific intent to kill. By finding defendant guilty of attempted murder, it is evident that they rejected the theory that he was too intoxicated to form the specific intent to kill. It is inconceivable that the jury would have found that he could form the specific intent to commit the crime but determine based on the same intoxication evidence that he was able to unable to commit premeditated, deliberate, and willful murder. (See People v. Cain (1995) 10 Cal.4th 1, 45 [inconceivable that jury would find no ability to form specific intent to rape based on intoxication when it determined that the same intoxication evidence did not negate the specific intent to kill].) Any error conceivably occasioned by the trial court’s failure to instruct the jury on voluntary intoxication as it related to premeditation and deliberation was therefore harmless.
Since we find no prejudice, defendant’s related claim of ineffective assistance of counsel also fails. (See People v. Hart (1999) 20 Cal.4th 546, 623 [in order to establish ineffective assistance of counsel, a defendant must show “resultant” prejudice].)
IV
PRESENTENCE CUSTODY CREDIT
Defendant contends that the trial court erred by denying him presentence custody and conduct credits in the instant case for the time that he was in custody simultaneously for the new crimes he committed and a parole hold on another case.
A. Additional Factual Background
According to the probation report, defendant was released on parole on February 28, 2005, in Riverside Superior Court case No. INF046680. On May 26, 2005, a warrant was issued for his arrest for absconding. In assessing defendant’s sentence on the instant crimes, the probation officer noted, “Although the defendant was booked into custody on July 21, 2005, the California Department of Corrections had a hold on him for a violation of parole until July 21, 2006, at that time their detainer and/or hold cleared. The defendant was given credit on this case from July 21, 2006. Pursuant to In Re Nickles, 231 [Cal.App.]3d 415, and People v. Bruner, 9 [Cal.]4th 1178, as this was not the sole basis for the parole violation, he is not entitled to dual credit until he completed serving his time on the parole violation.” The probation officer recommended that defendant be given 92 days local time, plus 13 days of section 2933.1 time, for a total of 105 days. The trial court and defense counsel agreed these were the correct presentence custody and conduct credits.
B. Analysis
Section 2900.5 provides that presentence credits shall be given “only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted.” (Id., subd. (b).) “The statute’s application is clear when the conduct that led to the conviction and sentence was the sole cause of the custody to be credited.” (People v. Bruner (1995) 9 Cal.4th 1178, 1180.) In most cases when a defendant is on a parole hold and then parole is revoked due to the new crimes and other reasons, the defendant does not receive presentence custody credit for the new crimes. (Id. at p. 1191, 1193-1194.)
In this case, defendant was in custody both on the parole hold and the new crimes. However, the record supports that defendant’s parole was never revoked, and the hold expired.
In re Bustos (1992) 4 Cal.App.4th 851 is instructive. In that case, an arrest warrant was issued by the Board of Prison Terms for the defendant’s failure to report to his probation officer. Subsequent to the issuance of the warrant, he committed a new crime and was placed in custody both on the new crime and the parole hold. At the time of defendant’s sentencing on the new crime, no formal parole revocation proceedings had been held. He was granted no presentence custody credits for the time spent in custody on the new crime because of the parole hold. Subsequent to that sentencing, his parole was revoked, and he received credit against the parole violation for the time of the parole hold pursuant to title 15, California Code of Regulations, section 2635.1, subdivision (c). (Bustos, at pp. 853-854.)
The appellate court concluded that the defendant was not entitled to presentence custody credit on the new crime. It concluded, “[D]efendant has failed to sustain his burden of proving that he is entitled to duplicative credits against the sentence imposed on July 5, 1990, pursuant to Penal Code section 2900.5, subdivision (a) and pursuant to title 15, California Code of Regulations, section 2635.1, subdivision (c) for the time spent in custody while subject to the parole hold.” (In re Bustos, supra, 4 Cal.App.4th at p. 855.)
In People v. Shabazz (2003) 107 Cal.App.4th 1255, the defendant was on a parole hold based on a parole revocation warrant issued prior to his committing the new crimes. At the time he was sentenced on the new crime, no revocation hearing had been held. In that case, the appellate court concluded that defendant was not entitled to presentence custody credit because he could not show that “but for” the new crimes, he would have been released from custody, as he would still be subject to the parole hold. (Id. at pp. 1258-1259.) However, the appellate court noted, citing to In re Marquez (2003) 30 Cal.4th 14, 19-24, “In the event defendant’s parole was never revoked . . ., he can seek a modification of the presentence credit order in superior court.” (Shabazz, at p. 1259.)
Here, an arrest warrant was issued against defendant on May 26, 2005, for absconding from parole. Upon defendant’s arrest for the instant crimes, a parole hold was placed on defendant. The record supports that defendant’s parole was not revoked, and the hold expired. Hence, defendant would not have received any credits under California Code of Regulations, section 2635.1, subdivision (c), and therefore, pursuant to the reasoning in Shabazz and Bustos, defendant here is entitled to presentence custody credits for the crimes in this case.
Based on the foregoing, defendant is entitled to an additional 365 days of presentence custody credit. Defendant is also entitled to conduct credits calculated pursuant to section 2933.1, which would total 54 days.
V
SENTENCING ERROR AND CORRECTION OF ABSTRACT OF JUDGMENT
Defendant additionally claims that he was improperly sentenced on count 1 because the trial court erred by imposing a seven-year minimum term on his life sentence, rather than imposing a life with the possibility of parole sentence without a minimum term. (See § 664, subd. (a) [sentence for premeditated and deliberate murder is life with the possibility of parole].) In addition, defendant argues that the abstract of judgment should be corrected to reflect he was found guilty by a jury rather than by pleading guilty. The People concede both errors.
We agree. We order that defendant’s sentence be modified to reflect a sentence of life with a possibility of parole on count 1 and that the abstract of judgment reflect that defendant was convicted by a jury, rather than pleading guilty.
VI
DISPOSITION
The trial court is directed to amend the abstract of judgment to reflect the modifications directed herein, including the additional custody and conduct credits, and to send a copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: RAMIREZ, P.J., KING, J.