(Super. Ct. No. 09F08737)
The opinion of the court was delivered by: Raye , P. J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Deandre Rooks guilty of first degree murder (count one; Pen. Code, § 187, subd. (a))*fn1 and found true the allegation that he personally used a firearm, causing death (§ 12022.53, subd. (d)). The trial court sentenced defendant to an aggregate state prison term of 50 years to life, consisting of 25 years to life on count one and a consecutive 25-years-to-life sentence on the enhancement.
Defendant contends: (1) "The trial court's instruction to the jury on the effect of provocation, in combination with the instruction on voluntary manslaughter, misinformed the jurors that they should apply an objective standard of reasonableness when determining whether the crime was first or second degree murder"; and (2) "The additional term of 25 years to life added to the murder sentence pursuant to Penal Code section 12022.53, subdivision (d), violates principles of double jeopardy by relying upon the same fact pertaining to both the murder and the enhancement." We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of November 21, 2009, defendant and five other young people were waiting for a train at the Mather Field light rail station. The victim, Juan Carlos Sanchez, approached the group, carrying a Styrofoam cup and looking unsteady on his feet. Sanchez asked defendant repeatedly for his cigarette. Defendant said no and finally told Sanchez to leave them alone. Defendant and his friends boarded a train; so did Sanchez.
Gralynn Archie, a Regional Transit security guard riding the next train, got a call from the train ahead telling him that several young passengers were arguing and they were going to be asked to leave the train. At the next stop, Sanchez and defendant's group boarded Archie's train. Archie smelled alcohol emanating from Sanchez. During "banter" back and forth, Sanchez said to defendant: "Nigga, I'm from the Point" and "[Y]ou know how we roll if you know about the Point."*fn2 Defendant replied that he had been to "the Point" and knew what went on there. Archie also heard someone in defendant's group saying he or she was from "east Frisco."
During the argument, Archie heard a girl in defendant's group tell defendant not to let Sanchez talk like that to him. Defendant gave her a look that Archie interpreted as "I got this."
Archie ordered Sanchez to get off at the next stop because of the argument and the alcohol in his cup; Archie did not order the others to leave. Sanchez got off at the Zinfandel station. After a female in defendant's group said something like "oh, hell no," defendant and the others also got off. Defendant's group appeared to be heading in a different direction from Sanchez.
Steven Lemmons, a passenger on the train, saw and heard the argument between defendant's group (whom he described as African Americans aged 17 through 22) and Sanchez (whom he described as Mexican). He heard one of defendant's group claim to come from East Oakland; he might also have heard Sanchez claim to come from 24th and Mission in San Francisco.*fn3 When someone mentioned fighting, the security guard ordered Sanchez off the train. Lemmons got off at the Zinfandel station along with Sanchez and defendant's group.
After they got off the train, Lemmons heard the others continue to talk about fighting. Defendant's group, and one female in particular, seemed to be "egging it on." Sanchez asked defendant to fight him one-on-one; defendant agreed. Defendant suggested an alley behind a shopping center about 200 feet from the light rail station. While there are cameras at the light rail station, there are none in the alley. Sanchez went into the alley, followed by defendant.
Lemmons heard someone in defendant's group mention a weapon. One of the girls said, "He's going to shoot him." A girl told defendant "not to do it" because "it wasn't worth it." Shortly afterward, Lemmons heard shots that sounded as if they ...