dissenting.
I respectfully dissent. Here, any error resulting from the first-degree murder instruction was harmless beyond a reasonable doubt, regardless of whether actual reflection is an element of that crime. Substantial evidence supports the verdict, and the alleged “ ‘error did not contribute to or affect the verdict.’ ” State v. Krone, 182 Ariz. 319, 321, 897 P.2d 621, 623 (1995) (quoting State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993), cert. denied, 511 U.S. 1046, 114 S.Ct. 1578, 128 L.Ed.2d 221 (1994)); see also Rankovich, 159 Ariz. at 120, 765 P.2d at 522.1
In Rankovich, the defendant shot and killed the victim after1 the two had a bar fight. In finding that erroneous admission of evidence of the defendant’s ethnicity was harmless, the court noted that the defendant had smirked just before the killing and had shot the victim three times in the back with a noticeable pause between the first and second shots. Id. The evidence in this case is .equally convincing. Appellant had a prior dispute with a person who looked just like the victim, feigned pleasantries with the victim just before the killing, shot the victim twice, paused, and then fatally shot the victim again in the back left shoulder while the victim was retreating and falling to the ground. Even assuming the jury instruction was incorrect and allowed the prosecutor to argue that proof of actual reflection was unnecessary, any such error did not affect the verdict because there was substantial evidence that such reflection occurred. This conclusion is supported by the medical examiner^ testimony that the victim had sustained a “gunshot wound which entered in the posterior left back behind the armpit on the ... shoulder blade,” and that such wound was the “more rapidly fatal” of the three. Additionally, although the trial judge overruled defense counsel’s objection to the prosecutor’s alleged misstatement of the law, she immediately went on to instruct the jury to disregard anything the lawyers said about what the law is. This admonition removed any prejudice to Appellant resulting from the prosecutor’s claimed erroneous misstatement of the law. Thus, given the substantial evidence of premeditation and the trial court’s immediate admonition, no reasonable jury could come to any other verdict.
The majority’s emphasis on the comments of the trial judge at sentencing characterizing the murder as impulsive is not persuasive. She made no finding that this murder was impulsive; if she had, I am sure she would have reduced the charge to second-degree murder. Moreover, this comment is not evidence. I believe we must base our decision on the evidence and not a statement made at sentencing that was not a formal finding.
Further, even if first-degree murder requires proof of actual reflection, and the evidence was not substantial on this element, I am not convinced that the given jury instruction was defective. The majority concludes that the instruction improperly permitted an argument that premeditation is a function of time rather than actual reflection. This position overlooks the last sentence of the instruction, which states that first-degree murder requires a “period of reflection”. . It is here where the difference between first and second-degree murder was defined for the jury; the instruction benefitted Appellant because it required actual reflection. Had the instruction strictly adhered to the statute it would have stated that first-degree murder is distinguished from second-degree murder by a “period of time sufficient to permit reflection,” or an “opportunity for reflection.” Instead, the instruction required actual reflection and in doing so was correct under the majority’s definition of premeditation. State v. Cruz, 189 Ariz. 29, 938 P.2d 78, 84 (App. 1996) (jury instructions are reviewed as a whole).
*74I also disagree with the majority’s willingness to graft a requirement of actual reflection onto the statutory definition of premeditation. This disagreement stems from A.R.S section 13 — 1101(l)’s clarity: “premeditation” is intent or knowledge of killing which precedes the killing “by a length of time to permit reflection.” Under this language no actual reflection is required, and the jury decides the factual question of whether adequate time for reflection existed. Except for rare cases, reflection most often can be proven only by the passage of time. The legislature clearly decided not to require the state to prove actual reflection. Instead, it determined that an objective standard of proof of a passage of some period of time would be adequate. Such a determination is a legitimate legislative prerogative. If the language of a statute is plain, we should look no further to determine its meaning. State v. Williams, 175 Ariz. 98, 100, 854 P.2d 131, 134 (1993). Further, if the legislature had intended that actual reflection be an element of first-degree murder, it could have readily said so. See State v. Taylor, 169 Ariz. 121, 123, 817 P.2d 488, 490 (1991).
This position is supported by Rankovich. In its discussion of the elements of first-degree murder in the context of the defendant’s claim that he was too intoxicated to premeditate, the supreme court did not find that actual reflection was required. 159 Ariz. at 121-22, 765 P.2d at 523-24. Rather, the court reiterated the requirement that there be a length of time that would permit reflection. Id,; see also State v. Murray, 184 Ariz. 9, 32, 906 P.2d 542, 565 (1995), cert. denied, 518 U.S. 1010, 116 S.Ct. 2535, 135 L.Ed.2d 1057 and — U.S. -, 117 S.Ct. 193, 136 L.Ed.2d 130 (1996) (“To show premeditation, the state must prove that the defendant acted with either the intent or knowledge that he would kill his victim and that such intent or knowledge preceded the killing by a length of time permitting reflection.”) (citing Rankovich); State v. Neal, 143 Ariz. 93, 98, 692 P.2d 272, 276 (1984) (same); State v. Just, 138 Ariz. 534, 546, 675 P.2d 1353, 1365 (App.1983) (same). In Murray, the court found that evidence of several gunshots and the victims’ helpless positions “show[ed] that defendants had sufficient time to permit reflection.” 184 Ariz. at 32, 906 P.2d at 565 (emphasis added).
I also note that, under the majority’s reasoning, an instruction based on A.R.S. section 13-1101(1) now constitutes error. Although clearly not dispositive of the issue, I suspect a few trial judges and practitioners will be surprised to learn that the statute’s explicit definition of premeditation is inadequate because it does not specify that actual reflection is required. To me, the legislature clearly intended otherwise.2
I appreciate the majority’s concern that, under the present statutory definition of premeditation, the line between first and second-degree murder is not entirely clear. But this complaint, while reasonable, is not new. “[W]hile the distinction between premeditated and unpremeditated murder fails as an intellectual edifice, it has served a critical if ill-articulated purpose: it allows juries to bring in a second-degree verdict when murder appears to them to be the product of passion rather than a cool mind.” Benjamin Cardozo, “What Medicine Can Do for Law,” Law and Literature and Other Essays at 155 (1931). Thus, while I share the majority’s concern, the answer more appropriately rests with the legislature. “Defining criminal behavior and establishing penalties for violating criminal laws are functions of the legislature, not the judiciary.” State v. Womack, 174 Ariz. 108, 112, 847 P.2d 609, 613 (App.1995).
The majority also criticizes the premeditation instruction in this case because “the instantaneous as successive thoughts in the mind” language was not balanced by language distinguishing premeditation from impulse. While this may be a fair criticism, Appellant’s counsel invited and waived any possible error by requesting such language in his proposed instructions. State v. Diaz, 168 Ariz. 363, 365-66, 813 P.2d 728, 730-31 *75(1991). Moreover, our supreme court has expressly approved this language. See State v. Zmich, 160 Ariz. 108, 111, 770 P.2d 776, 779 (1989). Thus, there was no error, and even if there was, it was waived.
To be sure, the supreme court on occasion in discussing whether the evidence supported the charge of first-degree murder has said premeditation is proven by evidence showing deliberation and reflection. See e.g., Willoughby, 181 Ariz. at 589, 892 P.2d at 1328. On the other hand, that same court expressly approved definitions of premeditation that did not require an act of reflection. See e.g., Murray, 184 Ariz. at 32, 906 P.2d at 565; Rankovich, 159 Ariz. at 121-22, 765 P.2d at 523-24; and Amarillas, 141 Ariz. at 623, 688 P.2d at 631. Also, on its face the statute clearly does not require actual reflection. These factors force me to disagree with the majority’s rationale.
In sum, the instruction here did not affect or contribute to the verdict in light of the substantial evidence of Appellant’s actual reflection. Further, the court’s instructions, when read in their entirety, did require actual reflection. Finally, the statutory definition of premeditation does not require proof of actual reflection. Accordingly, I would affirm.
. Incorrect jury instructions are subject to a harmless error analysis. California v. Roy, - U.S.-,-, 117 S.Ct. 337, 338, 136 L.Ed.2d 266 (1996); Pope v. Illinois, 481 U.S. 497, 503-04, 107 S.Ct. 1918, 1922-23, 95 L.Ed.2d 439 (1987); accord State v. Jensen, 153 Ariz. 171, 177, 735 P.2d 781, 787 (1987).
. The majority's reference to a partisan analyst's summary, opinion at 69-70, 945 P.2d at 380-381, is unpersuasive. The statement is vague and, in my view, incorrect given the significant changes the 1978 code made to the homicide statutes. Compare former A.R.S. §§ 13-451 and 452, repealed by Laws 1977, ch. 142, § 60, eff. Oct. 1, 1978, with A.R.S. §§ 13-1101(1),-1105, amended by Laws 1977, ch. 142 § 60, eff. Oct. 1, 1978.