Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INF047780, James S. Hawkins, Judge.
Stephen M. Lathrop, 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, Assistant Attorney General, Pamela Ratner Sobeck and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Defendant Ramon Cantu was found guilty of first degree murder in the death of Albert Casey. (Pen. Code, § 187, subd. (a).) The jury also found that he used a deadly weapon, a metal file, in the commission of the offense. (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23).)
All further statutory references will be to the Penal Code unless otherwise indicated.
Defendant was sentenced to an indeterminate term of 25 years to life in prison, plus a one-year determinate term for the enhancement.
Defendant appeals, contending the evidence was insufficient to support a verdict of first degree murder. He also argues that the trial court erred in instructing the jury that it had to find him not guilty of first degree murder before it could find him guilty of second degree murder. Finally, he argues that the trial judge erred in admitting a report from a state forensic laboratory through the testimony of a supervisor rather than the person who actually prepared the report.
FACTS
Defendant stabbed Casey 44 times with a metal file on or about June 16, 2004. Since the issue in the case is whether there was sufficient evidence of deliberation and premeditation, we examine the testimony presented on those issues in some detail.
Casey, who lived in Palm Springs, was 83 years old and in poor health. Defendant had been working for Casey as a handyman for about four years before the murder. Casey also found other work for defendant with Casey’s friends and neighbors. Defendant had a room in Casey’s home and lived there part of the time.
Casey’s age is not mentioned in testimony, but the prosecutor stated Casey was age 83 in closing argument.
Trudy Hallway, a longtime friend of Casey’s, testified that she saw defendant twice at Casey’s home. The first time was when she was introduced to him four years before the murder. She described defendant as very shy and introverted. The second time was an unspecified date when Casey was irritated with defendant because defendant had answered the home telephone and had taken the car keys or used the car without permission.
A neighbor, Robert Kenny, testified that defendant worked around Casey’s home. Two or three weeks prior to the murder, defendant came to Kenny’s front door and asked him for money. Kenny refused the request.
A friend, William Sumpter, testified that he employed defendant at Casey’s request. He saw them arguing a few times, “but nothing really bad.” Once they were arguing over $65 that defendant owed Casey, and Sumpter paid Casey $65 to end the argument. The money was money that Sumpter or defendant’s employer owed defendant anyway.
Hallway testified that she and other friends became concerned when they could not contact Casey on June 17 and 18, 2004. She went to Casey’s home on June 19, 2004, entered with her key, found the body, and called police. The responding officer testified that the body was on the dining room floor. Casey had been repeatedly stabbed, and blood splatter evidence indicated that he had been killed in the dining room. A bloodstained metal file lay next to the body. It apparently came from a nearby toolbox.
Casey’s car was missing and it was subsequently located near the home of some friends of defendant. Bloodstains were found on the front seat and on towels in the car. There was no evidence that any money or other property was missing from Casey’s home.
Defendant’s friends testified that defendant came to their home on June 16, 2004. Richard Myhre testified that it was a very hot night and defendant was not wearing a shirt. Defendant seemed distressed. He had a T-shirt in his hands and was drying himself with it. He asked if he could shower and wait for Myhre’s roommate to come home, and Myhre said yes.
Myhre’s roommate, Jim O’Brien, testified that defendant was waiting for him when he returned home. Defendant was “very agitated and very nervous and emotional.” Defendant told O’Brien, “I think I killed a man.” O’Brien asked him if he had any weapons and declined to drive defendant to Mexico. O’Brien did not question defendant further but gave him a ride to another friend’s house. Defendant asked for a trash bag, put his pants and tennis shoes in it, and took it with him.
O’Brien waited while defendant talked to his friends and then drove defendant to defendant’s sister’s home in Palm Springs. On the way there, defendant threw the trash bag into an empty lot. O’Brien subsequently helped police recover the bag, and defendant’s pants were found to be soaked with Casey’s blood.
Defendant returned to O’Brien’s home on June 19 and Myhre told police where defendant could be found. Defendant was arrested on a nearby street.
DISCUSSION
A. Sufficiency of the Evidence of Deliberation and Premeditation
As noted above, defendant contends that the evidence was insufficient to support his conviction for first degree murder.
“Review on appeal of the sufficiency of the evidence supporting the finding of premeditated and deliberate murder involves consideration of the evidence presented and all logical inferences from that evidence in light of the legal definition of premeditation and deliberation . . . . Settled principles of appellate review require us to review the entire 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—from which a reasonable trier of fact could find that the defendant premeditated and deliberated beyond a reasonable doubt. [Citations.] The standard of review is the same in cases such as this where the People rely primarily on circumstantial evidence. [Citation.]” (People v. Perez (1992) 2 Cal.4th 1117, 1124.)
Our review of any claim of insufficiency of the evidence is therefore a limited review. If the evidence presented to the trial court is subject to differing inferences, the reviewing court must assume that the trier of fact resolved all conflicting inferences in favor of the prosecution. (Jackson v. Virginia (1979) 443 U.S. 307, 326.) A reviewing court is precluded from making its own subjective determination of guilt or innocence. (Id. at p. 319, fn. 13.)
In People v. Perez, supra, 2 Cal.4th at page 1127, our Supreme Court emphasized: “[T]he relevant question on appeal is not whether we are convinced beyond a reasonable doubt, but whether any rational trier of fact could have been persuaded beyond a reasonable doubt that defendant premeditated the murder.”
“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331; see also People v. Hill (1998) 17 Cal.4th 800, 848-849.)
Given this court’s limited role on appeal, defendant bears a heavy burden in claiming there was insufficient evidence to sustain his conviction for first degree murder. If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. “On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) It is the exclusive function of the trier of fact to assess the credibility of witnesses and draw reasonable inferences from the evidence. (People v. Alcala (1984) 36 Cal.3d 604, 623.)
Defendant’s hurdle to secure a reversal is just as high when the prosecution’s case depends on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792, citing People v. Bean (1988) 46 Cal.3d 919, 932.) “‘“‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.’” [Citations.]’” (People v. Stanley, at p. 793, quoting People v. Bean, at pp.932-933.)
“Murder is the unlawful killing of a human being . . . with malice aforethought.” (§ 187.) To prove one variety of first degree murder, the prosecution must show a willful, deliberate and premeditated killing. If it fails to do so, the murder is a second degree murder. (§ 189.)
In this case, the jury was properly instructed on the difference between first degree and second degree murder: “The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and then, knowing the consequences, decided to kill. [¶] The defendant acted with premeditation if he decided to kill before committing the act that caused death. So the length of time a person spends considering whether to kill does not alone determine whether the killing is deliberate [and] premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. [¶] A decision to kill made rashly, impulsively, or without careful consideration, is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of reflection not the length of time.”
“‘A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] “Deliberation” refers to careful weighing of considerations in forming a course of action; “premeditation” means thought over in advance. [Citations.] “The process of premeditation . . . 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. . . .’ [Citations.]”’ [Citation.] [¶] In People v. Anderson (1968) 70 Cal.2d 15, 26-27 [(Anderson)], this court reviewed earlier decisions and developed guidelines to aid reviewing courts in assessing the sufficiency of evidence to sustain findings of premeditation and deliberation. [Citation.] We described three categories of evidence recurring in those cases: planning, motive, and manner of killing. [Citations.] The Anderson decision stated: ‘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 [planning] or evidence of [motive] in conjunction with [evidence of] either [planning] or [manner of killing].’ [Citations.] Since Anderson, we have emphasized that its guidelines are descriptive and neither normative nor exhaustive, and that reviewing courts need not accord them any particular weight. [Citations.]” (People v. Halvorsen (2007) 42 Cal.4th 379, 419-420.)
Thus, while the Anderson factors are not exclusive or exhaustive, they provide a sound basis to determine if the evidence supports the jury’s finding that a murder was willful, deliberate, and premeditated. (See People v. Thomas (1992) 2 Cal.4th 489, 517.) “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, we must determine in any case 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.’ . . . [Citation.]” (Anderson, supra, 70 Cal.2d at p. 25.)
With this background, we consider the applicability of the Anderson factors to this case, keeping in mind our purpose of differentiating between a deliberate and premeditated killing and a killing perpetrated on “‘mere unconsidered or rash impulse hastily executed’ [citation] . . . .” (Anderson, supra, 70 Cal.2d at p. 27.)
The first factor is planning: “(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 . . . .” (Anderson, supra, 70 Cal.2d at pp. 26-27.)
Defendant contends that there is no evidence of a plan to kill Casey. The People argue that “the jury could reasonably conclude that [defendant] armed himself with the metal file prior[] to attacking 83[-]year-old Casey. In short, the circumstances support the inference that [defendant] seized an opportunity to attack the elderly Casey, overpowering him in the private sanctity of his own home.”
Defendant lived in the home and was frequently there with Casey. He thus had many opportunities to attack Casey if he chose to do so. Defendant obviously had to arm himself with the file at some point before stabbing Casey. The issue is whether he planned to do so or whether he just grabbed the first available weapon in the dining room in a fit of anger.
Planning might be shown by the use of a more suitable weapon, such as a knife from the kitchen. Here, the file was apparently taken from a tool box in the dining room itself, and it could have been grabbed in a fit of anger.
There is no evidence either way that would differentiate this killing from a killing in sudden anger. The facts that the victim was alone in the house with his roommate and was killed with a file, standing alone, do not provide substantial evidence from which a reasonable jury could conclude that the attack was planned.
The People cite People v. Elliott (2005) 37 Cal.4th 453, 471 (Elliott), and People v. Pensinger (1991) 52 Cal.3d 1210, 1237, footnote 4 (Pensinger). In Elliott, our Supreme Court quoted Pensinger: “Cases indicate that the total vulnerability of the victim and the evidence of a previously selected remote spot for the killing do suggest planning. [Citations.]” (Pensinger, supra, 52 Cal.3d at pp. 1237-1238.) Pensinger was a case in which the victim was lured to a remote location, and the cases cited found plawnning where the victims were transported to remote locations before being killed.
In Elliott, the victim was alone in a bar after closing time and defendant apparently planned to surprise her and take the night’s receipts. The court found that “a reasonable jury could have interpreted defendant’s actions earlier during the evening of the murder as surveying the [bar] for a later attack.” (Elliott, supra, 37 Cal.4th at p. 471.) There was no such evidence of any activity before the attack in the present case that would support an inference by a reasonable jury that defendant planned the killing.
Evidence of planning activity is not necessary if there is evidence of motive (Anderson factor 2) and the nature of the killing supports the conclusion that the killing was the result of a preexisting reflection (Anderson factor 3). (Anderson, supra, 70 Cal.2d 15 at pp. 26-27.)
The second Anderson factor is motive: “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 . . . .” (Anderson, supra, 70 Cal.2d 15 at p. 27.)
Defendant contends there was no motive for the killing because there was no evidence of any significant disagreement between defendant and Casey.
The People argue: “As for motive, the evidence suggests that [defendant] was most likely motivated to murder Casey over money. Casey’s longtime friend Sumpter testified that Casey and [defendant] had money issues, and that he even paid [defendant] in order to avoid watching an argument between the two. Moreover, Casey’s neighbor Kenney noted [defendant’s] nervous request for money, a few days prior to [defendant] slaughtering Casey in Casey’s own home.”
The exact testimony of the two witnesses, Sumpter and Kenny, is set forth above. (Ante, p. 3.) Suffice it to say that Sumpter saw defendant and Casey arguing several times, but only saw one argument over money at an unspecified date in the several years that Sumpter had known defendant. Kenny initially testified that defendant approached him for money about a week before the murder. He subsequently gave his “best guess” that the incident occurred two or three weeks before the murder.
Sumpter was asked: “Did you ever see them in an argument?” He replied: “They were heated but not really arguing, fighting or nothing, but not really. A couple of times . . . Casey was worried about it, but nothing real bad.”
Neither of these incidents provides substantial evidence of a motive to kill Casey for money. After all, there was no evidence that money or any other valuables were taken from Casey’s home, except for his car. Defendant fled in the car without taking anything, not even his own possessions. Evidence of one argument over money in a four year employer/employee relationship is not substantial evidence of a motive to kill for money. We therefore find that there is no substantial evidence that would allow a reasonable jury to conclude that the prosecution established a murder for money as the motive for the crime.
The third Anderson factor is the manner of killing, i.e., “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 particular way for a ‘reason’ which the jury can reasonably infer from facts of type (1) or (2).” (Anderson, supra, 70 Cal.2d at p. 27.)
In the trial court, the prosecutor relied solely on the fact that Casey was stabbed 44 times to establish deliberation and premeditation. She argued that defendant had ample time to think about what he was doing as he repeatedly stabbed Casey. She did not argue that there was any evidence of planning or motive.
The People now argue that the manner of killing is the most significant factor. The People paraphrase Elliott, supra, 37 Cal.4th 453: “The method of killing here also suggests premeditation. [Citation.] [The victim] suffered three potentially lethal knife wounds, not to mention almost 80 other stab and slash wounds to her body. The jury could have construed the repeated slashing of [the victim’s] throat, in connection with the dozens of other wounds, as intimating a preconceived design to kill. We also observe that defendant shot [the victim] in the head four times from a few feet away. Even though these wounds were inflicted after [the victim] was clinically dead, Dr. Anthony testified that when the shots were fired a layman would not necessarily know that [the victim] had already died. A reasonable jury could have construed these shots as an ultimately unnecessary coup de grâce to a fatal attack effected with a calculated design to kill.” (Id. at p. 471.)
It is certainly true that the manner of killing here indicated an intent to kill. An intent to kill shows that the killing was willful. Willfulness is, of course, a necessary element of first degree murder because this type of first degree murder must be “willful, deliberate and premeditated.” (§ 189.) But, in addition to an intent to kill, the prosecution must, to establish that the murder was first degree murder, also prove beyond a reasonable doubt that the killing was deliberate and premeditated.
The issue, therefore, is not whether defendant intended to kill Casey. The issue is whether “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] . . . .” (Anderson, supra,70 Cal.2d at p. 27.) “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.” (People v. Thomas (1945) 25 Cal.2d 889, 900.) “[W]e find no indication that the Legislature intended to give the words ‘deliberate’ and ‘premeditated’ other than their ordinary dictionary meanings. Moreover, we have repeatedly pointed out that the legislative classification of murder into two degrees would be meaningless if ‘deliberation’ and ‘premeditation’ were construed as requiring no more reflection than may be involved in the mere formation of a specific intent to kill. [Citations.]” (Anderson, supra,70 Cal.2d at p. 26.)
The intent to kill in this case could have arisen either from a preconceived plan or from a sudden frenzy. In the absence of evidence of planning or motive, a reasonable jury would have no basis for distinguishing between the two types of killings. “Evidence in only one of these categories most often is insufficient; we require either very strong evidence of planning, or some evidence of motive in conjunction with planning or a deliberate manner of killing. [Citation.]” (Pensinger, supra, 52 Cal.3d at p. 1237.) “If the evidence showed no more than the infliction of multiple acts of violence on the victim, it would not be sufficient to show that the killing was the result of careful thought and weighing of considerations. [Citations.]” (People v. Caldwell (1955) 43 Cal.2d 864, 869.)
Defendant relies on People v. Alcala, supra, 36 Cal.3d 604: “The fact that a slaying was unusually brutal, or involved multiple wounds, cannot alone support a determination of premeditation. Absent other evidence, a brutal manner of killing is as consistent with a sudden, random ‘explosion’ of violence as with calculated murder. [Citations.]” (Id. at p. 626.) “Nor does the sheer quantity of the wounds or the existence of defensive wounds on [the victim’s] hands prove that the assault was not committed upon sudden provocation, as the Attorney General argues. [Citation.]” (People v. Pantoja (2004) 122 Cal.App.4th 1, 14.)
Superseded on other grounds as stated in People v. Falsetta (1999) 21 Cal.4th 903, 911.
We therefore must agree with defendant that the scant evidence presented to the jury was not sufficient to support a reasonable jury’s inference that the killing was deliberate and premeditated. There was no evidence of planning or motive. The manner of killing suggests an explosion of violence as much as it does a cold, calculated decision to murder. There is therefore no evidentiary support for the jury’s conclusion that Casey’s murder was a first degree murder.
Defendant’s other arguments for reversal have no merit. Defendant acknowledges that our Supreme Court has rejected his instructional error argument in People v. Jurado (2006) 38 Cal.4th 72. Defendant’s argument that he had the right to confront the author of a laboratory report has been rejected by our Supreme Court in People v. Geier (2007) 41 Cal.4th 555, 596-607.
The judgment is modified by reducing the degree of the crime of murder to second degree murder, and the judgment is affirmed as modified. The case is remanded to the trial court with directions to arraign and pronounce judgment on defendant in accordance with this opinion. (Anderson, supra, 70 Cal.2d at p. 36.)
We concur: HOLLENHORST, Acting P.J., GAUT, J.