Filed 10/19/20 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, G057657 v. (Super. Ct. No. 15WF1099) TROY SON, OPINION Defendant and Appellant. Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed. Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent. * * * Defendant Troy Son was charged with murder (Pen. Code, § 187, subd. (a)) with an enhancement for the personal use of a deadly weapon (Pen. Code, § 12022, subd. (b)(1)). The jury found defendant guilty of first degree murder, unanimously finding that the murder was willful, deliberate and premeditated and committed by lying in wait. The jury found the weapon use allegation to be true. Defendant was sentenced to a state prison term of 26 years to life, comprised of 25 years to life for the murder, plus a consecutive one year for the enhancement. Defendant raises three issues on appeal. First, defendant contends the court committed evidentiary error by permitting a detective to describe the events of a surveillance video that was subsequently watched by the jury. The court did not abuse its discretion, however, as the detective’s narration was admissible lay testimony based on her extensive review of the video. Defendant’s second and third arguments go to each of the first-degree murder theories. The jury made separate findings on two theories of first-degree murder: premeditation, and lying in wait. Defendant contends both were infected with error. To prevail on appeal, he must prevail on both arguments—if either the premeditation or lying-in-wait finding is upheld, then any error in the other is necessarily harmless. As to premeditation, defendant argues the prosecutor committed misconduct when explaining the concept of premeditation by offering two improper examples: the decision to drive through a yellow light, and the decision to fire a gun not just once, but a second time. We take no issue with the yellow light example. In the way the prosecutor described that example, it accurately depicted the sort of calculated, deliberate choice that constitutes premeditation. As to the second-shot example, we agree that it was somewhat suspect. There certainly are cases where the number of shots fired can indicate premeditation, but not always. Nevertheless, the example was harmless: the multiple-shots example is not entirely wrong, the prosecutor mentioned it only briefly, this was not a gun case, the issue of premeditation hinged on defendant’s mental health, and the court properly instructed the jury. Because we uphold the first-degree murder conviction on a theory of premeditation, we need not address lying in wait. 2 FACTS Prosecution Case It was late in the evening on May 19, 2015, when Luis and his friend Jarret were hanging out near Jarret’s house, smoking ...
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