Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. VA095923 Philip H. Hickok, Judge.
Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
RELEVANT PROCEDURAL HISTORY
On November 28, 2006, an information was filed, charging appellant James Kennedy in count 1 with the willful, deliberate, and premeditated murder of Maria Sandoval (Pen. Code, § 187, subd. (a)); in count 2, with the burglary of Sandoval’s residence (Pen. Code, § 459); in count 3, with the attempted willful, deliberate, and premeditated murder of Luis Hernandez (Pen. Code, §§ 187, subd. (a), 664); in count 4, with the burglary of Hernandez’s residence (Pen. Code, § 459); and in count 5, with the burglary of the residence of Maria Esther Gonzalez (Pen. Code, § 459). The information alleged under counts 1 and 3 that appellant had personally used a knife (§12022, subd. (b)(1)); in addition, the information alleged under count 3 that Hernandez had suffered great bodily injury. After appellant pleaded not guilty to the charges and denied the special allegations, he amended his plea to that of not guilty by reason of insanity.
All further statutory citations are to the Penal Code.
Trial was by jury. On October 3, 2007, following the guilt phase of trial, the jury found appellant guilty as charged, and also found true the special allegations. On October 5, 2007, following the sanity phase of trial, the jury found appellant sane. The trial court imposed an aggregate sentence of 34 years to life in prison. Under count 1, the trial court sentenced appellant to 25 years to life imprisonment. In addition, under count 3, the trial court sentenced appellant to a consecutive term of life imprisonment, plus three years for the infliction of great bodily injury, and under count 5, the trial court imposed the high term of six years. Punishment for counts 2 and 4 was stayed (§ 654).
FACTS
A. Guilt Phase
1. Prosecution Evidence
In 2006, Maria Sandoval lived in Bell Gardens in a residential complex consisting of three units. Sandoval occupied the unit closest to the street. A driveway separated Sandoval’s unit from the remaining units, which formed a single building. Luis Fernando Hernandez lived with his wife, Victoria Moreno, in one of the rear units, and Jose Ramos and his wife, Maria Gonzalez, occupied the other unit. Appellant lived across the street from the complex.
Gloria Pineda, who resided with Sandoval, testified that appellant repeatedly sought a date with Sandoval, who rebuffed him. According to Mario Gudino, Sandoval’s son, appellant displayed a fixation toward Sandoval. He approached Gudino several times for information about Sandoval, and Gudino told him to stay away from Sandoval.
Hernandez testified that prior to June 18, 2006, he had seen appellant only once, and had no dispute with appellant. At 5:00 or 6:00 p.m. on that date, Hernandez moved a washing machine from his van into his unit’s kitchen through the front door, which he left open. While Hernandez worked on the machine, his wife saw appellant enter the unit holding a knife, and shouted a warning to Hernandez. Hernandez turned to confront appellant, who stabbed him in the chest. As they fought, appellant stabbed Hernandez a second time. Hernandez moved the location of the struggle outside the unit, and his wife closed the unit’s door. Hernandez ran from appellant, who stabbed him again. Appellant tried to follow Hernandez, but was blocked by onlookers. Appellant said nothing during the encounter. When treated, Hernandez fell into a coma for nine days, and spent 15 days in a hospital.
Victoria Moreno, Hernandez’s wife, testified that appellant entered their house at about 6:00 p.m., holding two knives, and began stabbing Hernandez. Appellant said nothing. When appellant and Hernandez went outside, she closed the door to the house. She then saw appellant go to the unit occupied by Maria Gonzalez and Jose Ramos. Shortly thereafter, he left Ramos’s unit and went into Sandoval’s unit. When he exited Sandoval’s unit, he still held two knives.
Jose Ramos testified as follows: Prior to June 18, 2006, he had seen appellant, but was unaware that appellant was a neighbor. On that date, Ramos was in his unit with other members of his family when he heard someone scream for the police. Appellant rang his door bell, knocked, and asked Ramos to open his door. Appellant held two knives. When Ramos failed to open the door, appellant cut the screen on a window and declared, “I’m going to kill you.� In response to appellant’s statement that he “was going to kill everyone,� Ramos blocked appellant’s entrance through the window with a chair. Ramos then saw appellant enter Sandoval’s unit through its rear door. After appellant left Sandoval’s unit, he yelled, “I love you, Maria.�
When Bell Gardens Police Department Officer David Torres arrived at the residential complex, he saw appellant standing in a driveway near the front of Sandoval’s unit. Appellant held a knife, and screamed, “Maria, I love you. I’m sorry.� As Torres and other officers approached, appellant yelled that he would kill himself if the police came closer. When Torres entered Sandoval’s residence, he found her dead, surrounded by blood. An autopsy disclosed that she had died of stab wounds.
2. Defense Evidence
Appellant presented no evidence.
B. Sanity Phase
1. Defense Evidence
Sherri Kennedy, appellant’s mother, testified that appellant, though initially a happy child, engaged in episodes of rage as he grew older. Appellant said he heard voices in his head during the episodes. Appellant began using drugs in high school, and experienced hallucinations when he took them. After he served in the National Guard, he resided in his parents’ home, and displayed strange behavior.
According to Sherri Kennedy, on the date of Sandoval’s murder, appellant sat in her house, holding a Father’s Day card and crying. Later, she saw appellant, wearing dirty clothes, enter Sandoval’s house through a window. When she yelled at him to leave Sandoval’s house, she saw another man with blood on his shirt run past her. After appellant emerged from the house with a knife, he refused to give the knife to her. He said he was looking for his step-brother’s head, and stated, “They cut off his head and put it in the dumpster.� She tried unsuccessfully to persuade appellant that his step-brother was alive.
Kenneth Kennedy, appellant’s father, testified that on the date of Sandoval’s murder, appellant was at home, looking despondent. Later, he saw appellant climbing in and out of nearby dumpsters. When Kenneth Kennedy asked appellant to explain his conduct, appellant ignored him. According to Janis Shepherd, appellant’s half-sister, appellant began to display violent behavior as a seven- or eight-year old, and started to abuse drugs when he was teenager. Appellant sometimes said he heard voices directing him to break his toys.
Bell Gardens Police Department Officer Christopher Wiggins testified that when he transported appellant after his arrest, appellant’s demeanor was “a bit bizarre.� Appellant said: “I see them. They’re right in front of me. There he is in the white shirt. Kill that mother fucker.� Appellant also said, “I’m so sorry, Maria. You didn’t deserve this.�
Richard Romanoff, a clinical and forensic psychologist, opined that appellant suffered from paranoia schizophrenia, exacerbated by drug abuse, and that he was legally insane at the time of the crimes.
2. Prosecution Evidence
Mario Gudino testified that he had known appellant for approximately three years before June 2006. According to Gudino, appellant acted like a “regular person� when he was not using drugs, but spoke unintelligibly while under their influence.
Lucia Sandoval testified that she resided with Maria Sandoval from December 2003 until April 2006. She had frequently encountered appellant, who was polite and never acted bizarrely.
DISCUSSION
Appellant contends the evidence was insufficient to establish that Sandoval’s murder and the attempted murder of Hernandez were deliberate and premeditated. He also contends there was sentencing error under Cunningham v. California (2007) 549 U.S. 270 (Cunningham).
A. Substantial Evidence
We begin with appellant’s contentions regarding the sufficiency of the evidence. Generally, the terms “premeditated� and “deliberate,� as applied in the context of attempted murder, carry the same meaning they convey in connection with first degree murder. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1462, fn. 8.) So understood, “‘premeditated’ means ‘considered beforehand,’ and ‘deliberate’ means ‘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.’ [Citations.]� (People v. Mayfield (1997) 14 Cal.4th 668, 767; see People v. Lenart (2004) 32 Cal.4th 1107, 1127.) Thus, “[a]n intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse. [Citations.] However, the requisite reflection need not span a specific or extended period of time. ‘“‘Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .’�’ [Citation.]� (People v. Stitely (2005) 35 Cal.4th 514, 543.)
“‘The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] 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.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]’ [Citation.]â€� (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
In People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson), our Supreme Court identified three kinds of evidence a reviewing court should consider in determining the existence of premeditation and deliberation, namely, planning activity, motive, and manner of killing. It has subsequently cautioned that these factors “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, 420 (Halvorsen).)
In People v. Lenart, supra, 32 Cal.4th at page 1127, the court summarized the three Anderson categories as follows: “‘(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; (2) 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, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that 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]; (3) 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).’�
We find guidance on appellant’s contentions from Halvorsen and People v. Smith (1973) 33 Cal.App.3d 51 (Smith), reversed on another ground in People v. Wetmore (1978) 22 Cal.3d 318, 325, 327, fns. 5, 7. In Halvorsen, the defendant shot four men in a single day, killing two of them. (Halvorsen, supra, 42 Cal.4th at pp. 385-388.) The defendant armed himself with a gun, confronted his first victim -- who did not know the defendant -- and demanded access to the victim’s house in order to search it for another individual. (Id. at p. 385.) When the first victim agreed, the defendant shot him, inflicting a nonmortal wound. (Ibid.) About ten minutes later, the defendant drove past a trucking business, called out to a trucker -- again, who did not know the defendant -- and fatally shot him in the head; the defendant then fired a fatal shot into the neck of a security guard who happened upon the defendant as he left the trucking business. (Id. at pp. 386-387, 420.) Less than an hour later, the defendant entered the home of his fourth victim, who had once collected a debt from the defendant. (Id. at pp. 387-388, 422.) The defendant pointed a gun at the victim, said, “‘You’re dead, Gene, you’re dead,’� and shot the victim, inflicting a nonmortal wound. (Id. at pp. 387-388.) At trial, the defendant presented evidence that prior to the shooting, he had serious financial problems, had been drinking heavily, and suffered from bipolar disorder. (Id. at pp. 388-396.) A jury found him guilty of, inter alia, two counts of premeditated and deliberate murder. (Id. at p. 384.)
On appeal, the defendant contended there was insufficient evidence of premeditation and deliberation. Our Supreme Court rejected this contention, stating: “Defendant’s purposive actions in driving to seek out various persons and then killing them, viewed in a light favorable to the judgment, indicate defendant had some motive for his killings -- a method to his madness -- and that is enough. The record suggests the motive may have been related to defendant’s feelings about his desperate financial state, as each of the locations where defendant committed the shootings . . . conceivably had some connection, in defendant's mind, to his financial troubles.� (Halvorsen, supra, 42 Cal.4th at pp. 421-422.) As evidence of planning, the court pointed to the lack of provocation by the murder victims, the defendant’s cold demeanor, and the planning activity he displayed in connection with the shooting of his fourth victim. (Ibid.) Moreover, the court concluded that the defendant, in shooting his victims in the head or neck at close range, had selected a method calculated to result in death. (Id. at p. 422.)
In Smith, the defendant displayed a knife, expressed a hatred for hippies, whom he accused of stealing his tools, and said he was going “down to the [Bear] river� to take revenge. (Smith, supra, 33 Cal.App.3d at p. 58.) A day or two later, he launched a knife attack on a public campground on the Bear River, killing two campers and injuring two others. (Id. at pp. 58-59.) At trial, he presented evidence that he had abused alcohol and suffered from mental disorders. (Id. at p. 60.) After a jury found him guilty of one count of first degree murder and other offenses, he contended there was insufficient evidence of premeditation and deliberation. (Id. at pp. 57, 61-67.) In rejecting this contention, the appellate court remarked that the attack on the campground was “bizarre, [] unprovoked and thinly motivated,� but concluded the record adequately established that the defendant’s design was to “kill any group member he could catch.� (Id. at pp. 65-66.) Regarding planning and the manner of killing, the court noted that the defendant had talked about an attack before his assault on the camp, and selected a knife suited for cutting and stabbing. (Id. at p. 66.) The court remarked: “It is altogether illogical and unrealistic to infer that a surprise attack on strangers with such a weapon was intended only to wound and not to kill.� (Ibid.)
In view of Halvorsen and Smith, there is sufficient evidence that the attempted murder of Hernandez and the murder of Sandoval were premeditated and deliberate. The record adequately establishes that appellant had a motive in carrying out his attack on Sandoval’s residential complex -- presumably related to his failure to create a relationship with Sandoval -- in view of his methodical and persistent attempt to kill everyone he could catch within the complex. Regarding planning, the record discloses that appellant’s attacks were unprovoked; he arrived at the complex with two knives, in apparent anticipation that he might lose or break a knife as he executed his plan; and, in attempting to enter Ramos’s unit, he declared his intention to kill everyone in it. Finally, regarding the manner of killing, there is ample evidence of appellant’s determination to kill Hernandez and Sandoval, consistent with his announced intention: he repeatedly stabbed Hernandez, even as Hernandez fled from him, and Sandoval’s body revealed seven knife wounds to her left arm and chest, including two fatal chest wounds.
Pointing to Anderson, appellant contends that the pattern of wounds on Sandoval’s body establishes that her killing was the result of impetuous action or compulsion. In Anderson, a jury found the defendant guilty of the first degree murder of a 10-year old girl. (Anderson, supra, 70 Cal.2d at p. 19.) The victim’s body disclosed more than 60 knife wounds all over her body, including her genitals; moreover, part of her tongue had been cut off. (Id. at p. 22.) No evidence was presented regarding the events immediately preceding the victim’s death. (Id. at pp. 19-22.) The court in Anderson concluded that the evidence was insufficient to establish first degree murder, reasoning that the brutality of the killing, by itself, could not support a finding of premeditation and deliberation. (Anderson, supra, 70 Cal.2d at pp. 24-34.)
Here, aside from the seven wounds to Sandoval’s chest and left arm, she suffered a knife wound on her leg. Appellant argues that the leg wound is inconsistent with a premeditated and deliberate plan to kill her. We disagree. Unlike Anderson, the record before us establishes appellant’s conduct prior to his attack on Sandoval. Appellant arrived at the residential complex with two knives, tried to kill Hernandez, announced his intention to kill everyone in Ramos’s unit, and then entered Sandoval’s unit. Although nothing directly discloses the precise manner in which appellant killed Sandoval, the fact that all but one of her wounds occurred on her chest and left arm supports the reasonable inference that he repeatedly tried to stab her in the chest, which she resisted. In view of the evidence, the jury could properly conclude that Sandoval’s murder was the product of premeditation and deliberation. In sum, there is substantial evidence to support the findings of premeditation and deliberation.
B. Cunningham Error
Appellant contends that the trial court erred under Cunningham in imposing the upper term on count 5, which concerned the burglary of Jose Ramos’s residence. In Cunningham, the United States Supreme Court established that under the Sixth Amendment of the United States Constitution, a defendant is entitled to a jury trial on the facts supporting the selection of the upper term, with the exception of those facts regarding the defendant’s recidivism that the trial court may determine under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). (Cunningham, supra, 549 U.S. at pp. ____, ___ [127 S.Ct. at pp. 860, 871].) Regarding count 5, the trial court stated that it had selected the upper term “not only because of the callousness and viciousness of the series of crimes, but the opportunity [appellant] had to reflect upon what [appellant was] doing,� and his failure to desist upon reflection. Appellant argues that the trial court denied him the right to a jury trial in making these determinations. For the reasons explained below, we find no reversible error.
In Apprendi, defendant’s sentence had been doubled because the trial court found the crime to have been motivated by racial animus. The court held that the doubling was improper because “[o]ther 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.� (Apprendi, supra, 530 U.S. at p. 490.)
Appellant also suggests that in imposing sentence on count 5, the trial court improperly relied on facts about the viciousness of the crimes charged in the other counts. As explained below, the facts pertaining to count 5, viewed in isolation, support a determination of viciousness adequate for the imposition of the upper term.
That a “crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness� is an aggravating circumstance, as is the fact that “[t]he manner in which the crime was carried out indicates planning.� (Cal. Rules of Court, rules 4.421(a)(1), (a)(8).) Upon a proper finding of fact, the trial court may impose the upper term for making a threat of great bodily injury (People v. Reid (1982) 133 Cal.App.3d 354, 369 [defendant’s threat to blow victim’s head off with gun supported upper term for robbery]), and for engaging in premeditation and planning prior to the offense (People v. Begnaud (1991) 235 Cal.App.3d 1548, 1558 [defendant’s planning supported high term for robbery]).
Because these factors fall outside the “prior conviction� exception in Apprendi, the key question is whether this error resulted in prejudice, an analysis we undertake pursuant to Chapman v. California (1967) 386 U.S. 18, 22-24. (Washington v. Recuenco (2006) 548 U.S. 212, 218-222.) As our Supreme Court explained in People v. Sandoval (2007) 41 Cal.4th 825, 839, “if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.�
In our view, there is no reasonable doubt that a jury would have found aggravating circumstances sufficient to support the imposition of the upper term, had the matter been submitted to the jury. The record discloses undisputed evidence that appellant threatened to kill Ramos and his family when he tried to cut his way into Ramos’s unit with knives. Moreover, the burglary of Ramos’s unit occurred between the attempted murder of Hernandez and the murder of Sandoval, which the jury properly concluded were premeditated and deliberate (see pt. A., ante). As the evidence established that the burglary of Ramos’s unit fell within appellant’s plan to kill everyone in the residential complex, there is no reasonable doubt that the jury would have found the burglary was premeditated and planned. Accordingly, the error was harmless.
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, Acting P. J., SUZUKAWA, J.