Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C150999
Lambden, J.
A jury convicted defendant of first degree murder (Pen. Code, § 187, subd. (a)). Defendant appeals and argues that the lower court abused its discretion when it allowed the forensic pathologist to give his expert opinion about the amount of time it took to strangle the victim to death. Additionally, defendant objects to the trial court’s response to a jury question that first degree murder requires a finding that premeditation and deliberation occurred “at any time prior to the moment of death.” Defendant maintains that this supplemental instruction was erroneous because the premeditation and deliberation for first degree murder had to occur prior to the strangulation of the victim and the court’s instruction permitted the jury to find that the premeditation and deliberation occurred during the strangulation. Finally, defendant contends that substantial evidence did not support the jury’s finding of deliberation and premeditation. We are not persuaded by defendant’s arguments and affirm the judgment.
BACKGROUND
On October 18, 2005, an information was filed charging defendant with murder (Pen. Code, § 187, subd. (a)). Defendant pleaded not guilty and the matter proceeded to a jury trial, which began on November 14, 2007.
Evidence Presented at Trial
The Discovery of the Body
At trial, the evidence showed that on March 17, 2004, Ashkea Coleman was found dead inside a van belonging to defendant, which was parked on a city street. Coleman, a prostitute, had been killed by manual strangulation. Coleman talked to her friend on the phone that night at 10:50 p.m. Coleman’s friend testified that Coleman said she would come by the friend’s house after Coleman’s last “date.” Coleman told her friend that she was waiting for her last “date” at 34th and San Pablo Avenues.
On March 17, 2004, at 11:40 p.m., Oakland Police Officer Gregg Dutton was driving his patrol car when he saw a van parked on Blenheim Street. The van was facing the wrong direction and the dome light in the van was on. The cargo door on the passenger side of the van was open, and a person outside the van was leaning into the cargo door of the van.
Dutton drove down Blenheim Street and then turned his car around to return to the van. Dutton saw defendant walking calmly away from the van. Defendant appeared to be talking on his cell phone. Dutton drove by defendant and defendant waved to him.
Dutton approached the van, and saw that the cargo door was now closed and the dome light was off, but the passenger side window was open. Dutton opened the unlocked door to the van and discovered a nude woman, who was Coleman. Dutton checked her pulse and believed that she was dead.
Dutton notified his dispatcher of his discovery and reported that he had seen a male walk away from the van and head west on Pearmain Street. He provided a description of the man and proceeded down Pearmain Street to see if he could find the person. He did not spot defendant.
Emergency medical personnel and other police officers arrived. Coleman’s body was still warm. Julie Jaecksch, a police evidence technician, searched the van and found women’s clothing, a purse containing a cell phone, a condom wrapper, and a used condom. She found a second cell phone on the floor of the van near the edge of the driver’s seat. A cell phone clip was attached to the driver’s side visor of the van, but neither of the two cell phones found fit into the clip. Court papers with defendant’s name were found on top of the driver’s side visor. The hood of the van was still very warm.
The Arrest of Defendant
While on patrol, Officer Jesse Gonzales responded to Dutton’s report of a man leaving the area of Blenheim and Pearmain Streets where a body of a woman had been found. He and his partner searched the area on foot. The officers heard a man’s voice calling from a gated scrap metal yard at 750 106th Avenue. The officers banged on the gate to the scrap yard and Eric Anderson, who lived in the trailer there, let them into the yard. The officers announced their presence and searched the yard. Gonzales eventually found defendant hiding next to a large brown refrigerator. Gonzales handcuffed defendant and walked him to a patrol car. Defendant was wearing a T-shirt that belonged to Anderson; Anderson kept his clothes in a camper parked near his trailer in the yard.
Dutton identified defendant as the person he had observed walking away from the van that night, but he stated that defendant was wearing a different shirt. Subsequently, Anderson found a shirt near the camper, and Dutton identified this shirt as being similar to the shirt he had seen defendant wearing when walking away from the van. Shoe prints matching defendant’s shoes were seen on top of Anderson’s car, parked next to the shop building. The officers found a cell phone in defendant’s pocket and the phone fit the phone clip attached to the driver’s side visor in the van.
Cause of Death and Estimate of the Length of Time it Took to Strangle Coleman
The prosecutor offered Dr. Paul Herrmann, a forensic pathologist, as an expert qualified to render an opinion as to the cause of death in human beings. The trial court found, without any objection by the defense, that he qualified as an expert.
Herrmann reported that he had performed over 13,000 autopsies in his career. He stated that he had performed an autopsy on Coleman, who was 24 years old, five feet and one-inch tall, and 110 pounds. He concluded that Coleman died of asphyxia due to strangulation. He explained that a hand was placed around Coleman’s neck and her neck squeezed.
Herrmann testified that there were superficial abrasions on Coleman’s forehead, above the left eye, and an old, healing scar on the midline of her forehead, just within the hair. He also found that she had abrasions on the back of her left shoulders and a small contusion on the back of one arm. He observed numerous pinpoint hemorrhages on the surface of Coleman’s eyes, the inside of her eyelids, and the inside of her lower lip. He also noted that her left eyelid had bleeding, which was related to the hemorrhages on the inside of the eye. He spotted multiple hemorrhages under the right eyelid, some so large they represented pinpoint hemorrhages that had begun to spread. Herrmann explained that blood pumped into the brain by the carotid arteries was not able to exit through the jugular vein, which caused this petechial hemorrhaging. He elaborated that the resultant pressure caused the capillaries to burst.
Herrmann described his finding that Coleman’s neck had multiple, small abrasions on the skin. He detected a prominent abrasion beneath Coleman’s chin on the upper part of her neck. Herrmann explained that he discovered hemorrhaging on the right, upper part of Coleman’s larynx, over the hyoid bone, and at the base of the tongue on the right. The hyoid bone was broken on the right side.
Herrmann concluded that a fair amount of force was used when strangling Coleman because her hyoid bone was broken. On cross-examination, Herrmann acknowledged that no studies had ever been conducted to determine how long it takes to kill a person by strangulation and that it was possible to strangle someone manually without causing the person’s death. Herrmann explained that people can die at various stages during strangulation. He admitted that Coleman could have died while being strangled for less than a minute, but he doubted that she was strangled for less than one minute. He elaborated: “In this case, however, due to the fact there are numerous hemorrhages, there are lots of hemorrhages in the eyes and also inside the lip, but primarily the eyes, I know that pressure had to be applied over a prolonged period of time for that number of blood vessels to break. Exactly how long, I can’t tell you, but I would suggest––estimate probably it would take a minute to a minute and a half of pressure on the jugular veins for that to occur.”
Herrmann further explained: “It’s just based on the numerous petechial hemorrhages and the size of them as well, indicate to me that the blood pressure had to keep enlarging those over a period of time. First of all, it had to make them occur in the first place, which isn’t going to occur right away at all, and then they had to keep getting larger and larger. I can’t tell you exactly how long this took, but my estimate is it probably took over a minute. It may have taken much longer than that; it may have taken somewhat shorter period of time than that. I can’t be certain of it.”
The court asked, “When you say ‘much longer,’ what’s the outside limit?” Herrmann answered: “Well, in a case where the heart is allowed to continue to beat, if it does continue to beat for four minutes, which it could do, it takes about four minutes for brain death to occur, so it could be anywhere up to about four minutes of pressure on the neck that could have caused this.”
DNA
Coleman’s DNA matched the DNA from the epithelial cells discovered on the condom found in the van. Defendant’s DNA matched the DNA from the sperm discovered in the condom. The criminalist who compared the samples opined that the genetic common to both defendant’s DNA and the DNA from the sperm in the condom was so rare that it was expected to occur in only one in 771 billion people.
Defendant’s Phone Calls
Defendant had a daughter with Alisha Perine. The van was registered in Perine’s name because defendant did not have a driver’s license, but defendant was the actual purchaser of the van. Perine stated that defendant was the only person who drove the van.
Defendant called Perine three times after 11:00 p.m. on March 17, 2004. Defendant told Perine to go to his home and unplug his truck from a battery charger. He also asked her to call Faith Sanford, the mother of his other children, and ask her to go to his house. Additionally, he asked Perine to take the registration of the van out of her name. Perine did not comply with any of defendant’s requests.
The Court’s Response to the Jury’s Question
While deliberating, the jury asked the following: “For first degree murder deliberation/premeditation, may premeditation happen after commencement of the act that caused death? Or must the deliberation be before commencement of the act?” The court, over the defense’s objection, responded: “The premeditation and deliberation required to find that an unlawful killing with express malice is murder in the first degree may occur at any time prior to the moment of death.”
The Verdict, Sentence, and Appeal
On December 17, 2007, a jury convicted defendant of first degree murder. On February 21, 2008, the court sentenced defendant to prison for 25 years to life.
Defendant filed a timely notice of appeal.
DISCUSSION
I. Admitting the Expert’s Testimony on the Estimated
Length of Time it Took to Strangle Coleman
The trial court found that Herrmann, a forensic pathologist, qualified as an expert to render an opinion as to the cause of death. Defendant does not challenge the trial court’s determination that Herrmann qualified as an expert. However, he maintains that the court should not have permitted Herrmann to testify that the killer strangled Coleman probably for one to one and one-half minutes and possibly up to four minutes. He asserts that Herrmann was qualified to testify about the cause of death, but was not qualified to testify about how long it would take to cause death. This evidence was the only evidence supporting premeditation and deliberation, according to defendant, and therefore defendant argues that the admission of this testimony deprived him of his constitutional due process right to a fundamentally fair trial.
A person may testify as an expert “if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” (Evid. Code, § 720, subd. (a).) Expertise is relative to the subject matter of the testimony, and is not subject to rigid classification according to formal education or certification. (People v. Brown (2001) 96 Cal.App.4th Supp. 1, 37.) The issue is whether the witness’s “peculiar skill, training, or experience enable[s] him to form an opinion that will be useful to the jury.” (People v. Davis (1965) 62 Cal.2d 791, 800.) “[A]n expert’s qualifications ‘must be related to the particular subject upon which [s]he is giving expert testimony. Qualifications on related subject matter are insufficient. [Citations.]’ ” (People v. Chavez (1985) 39 Cal.3d 823, 828.) “If the witness exhibits an unusual skill and knowledge gained from study and experience not possessed by the man on the street he is competent to give an opinion.” (People v. Horowitz (1945) 70 Cal.App.2d 675, 689.)
Once the trial court determines a witness has sufficient knowledge of the subject matter to entitle the opinion to go to the jury, the question of the degree of the expert’s knowledge goes to the weight of the evidence, not its admissibility. (People v. Bolin (1998) 18 Cal.4th 297, 321-322.) “A trial court’s determination to admit expert evidence will not be disturbed on appeal absent a showing that the court abused its discretion in a manner that resulted in a miscarriage of justice.” (People v. Robinson (2005) 37 Cal.4th 592, 630.)
Here, Herrmann is a medical doctor specializing in forensic pathology and he estimated that he had performed over 13,000 autopsies in his career. He had testified about 7,000 times as an expert witness as to the cause of death. Additionally, he performed seven or eight autopsies each year on victims of either manual or ligature strangulation. Thus, the record amply supported the trial court’s determination that Herrmann qualified as an expert to give his opinion about the cause of Coleman’s death.
Defendant contends that Herrmann should not have been able to testify about the length of time the victim was strangled because there was a lack of foundation for this testimony. Defendant’s principal objection is that Herrmann did not base his testimony on prior studies as he admitted there had been no studies conducted to determine how long it takes for a petechial hemorrhage to occur during strangulation. Defendant asserts that Herrmann’s experience of conducting autopsies could not provide him with knowledge about how long it would take for a person to die by strangulation.
Defendant’s objection has little merit. Obviously, researchers cannot conduct experiments on the length of time necessary to cause death by manual strangulation. Such research, however, was not necessary as Herrmann could base his conclusion on his examination of Coleman, his understanding of human anatomy, and his prior experience of examining people who had been strangled. He testified that his estimate of the length of time Coleman was being strangled was based on the number and size of the hemorrhages she suffered, especially those around the eyes. He emphasized that he knew “that pressure had to be applied over a prolonged period of time for that number of blood vessels to break....” Given his experience and medical knowledge he estimated that it would take a minute to one and one-half minutes of pressure on the jugular veins for this to occur. This testimony about how long it took to strangle Coleman certainly was within the subject matter of his expertise.
Indeed, courts have permitted pathologists to provide their opinion as to how long the killer strangled the victim. “A forensic pathologist who performed an autopsy is generally permitted to offer an expert opinion not only as to the cause and time of death but also as to the circumstances under which the fatal injury could or could not have been inflicted.” (People v. Mayfield (1997) 14 Cal.4th 668, 766.) In People v. Stitely (2005) 35 Cal.4th 514, 544, the pathologist testified that lethal pressure had been applied to the victim’s neck for a “ ‘long’ ” time. In People v. Davis (1995) 10 Cal.4th 463, 510, the expert testified that the victim was strangled for a period of up to five minutes.
We note that these appellate decisions did not directly address this issue because the expert’s testimony on the length of time it took to strangle the victim was not challenged on appeal in either of these cases.
Defendant claims that this case resembles People v. Hogan (1982) 31 Cal.3d 815, overruled on another ground in People v. Cooper (1991) 53 Cal.3d 771, 836. In Hogan, the Supreme Court held that the trial court had erroneously permitted a criminalist to offer blood splatter testimony where the criminalist had merely observed many bloodstains without any inquiry, analysis, or experiment. (Hogan, supra, at pp. 852-853.) The criminalist testified that some of the stains on the defendant’s clothes were “ ‘splatters,’ ” caused by blood drops flying through the air following impact rather than by a surface-to-surface contact with a bloody object. (Id. at p. 851.) However, the criminalist had never performed laboratory analyses to determine the source of bloodstains either in past cases or in the present case. (Id. at p. 852.) Moreover, he had received no formal education or training to make such a determination. (Ibid.) His only experience involved viewing several years earlier an exhibit demonstrating patterns of human blood dropped from various heights and angles, reading a book about flight patterns of blood, and observing bloodstains at many crime scenes. (Ibid.) Since the criminalist’s qualifications “boiled down to having observed many bloodstains[,]” the Supreme Court concluded that he was not qualified to render an expert opinion on the source of bloodstains. (Id. at p. 853.)
In contrast to the criminalist in People v. Hogan, supra, 31 Cal.3d 815, Herrmann’s qualifications were not limited to merely observing people who had died from strangulation. Rather, he was a medical doctor who specialized in forensic pathology. As already stressed, he had performed more than 13,000 autopsies, which included seven or eight on victims of either manual or ligature strangulation every year. Further, his estimate of the time it took to strangle Coleman was based on his examination of her, the number and size of the hemorrhages she had suffered, and the fact that her hyoid bone had been broken. Thus, unlike the situation in People v. Hogan, at pages 852-853, Herrmann’s qualifications were based on his past experience dealing with people who had died from strangulation, his training and experience as a forensic pathologist, and his analysis of Coleman’s injuries. His estimate of the length of time of the strangulation was well within his expertise and based on his specialized knowledge.
It is unclear from the record whether Herrmann performed autopsies on seven or eight victims of strangulation every year from the time he completed his training or from some other time. Herrmann completed his training in 1971.
Accordingly, we conclude that the lower court did not abuse its discretion in permitting Herrmann to testify that he believed that the strangulation took one to one and one-half minutes and four minutes at most.
II. Trial Court’s Response to Jury Question
The court instructed the jury regarding first and second degree murder, which included CALJIC No. 8.20. Defendant agrees that the instructions provided correctly stated the law.
CALJIC No. 8.20 reads: “All murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree.
Defendant, however, objects to a supplemental instruction given in response to a question asked by the jury. While deliberating, the jury asked the following: “For first degree murder deliberation/premeditation, may premeditation happen after commencement of the act that caused death? Or must the deliberation be before commencement of the act?” The court, over the defense’s objection, provided the following written response: “The premeditation and deliberation required to find that an unlawful killing with express malice is murder in the first degree may occur at any time prior to the moment of death.”
Defendant asserts that the trial court should have repeated CALJIC No. 8.20 or provided CALCRIM No. 521 in response to the jury’s question. Defendant argues that the court’s supplemental instruction was incorrect because the jury could find that the premeditation and deliberation could occur before the moment of death and, according to defendant, the premeditation and deliberation had to occur prior to the time he started strangling the victim. He argues that “it is well-established that a conviction of first degree murder requires proof that the defendant premeditated and deliberated over the killing prior to committing the act that caused the victim’s death, not merely prior to the death itself.”
CALCRIM No. 521 states: “If you decide that the defendant has committed murder, you must decide whether it is murder of the first or second degree. [¶]... [¶]
“In reviewing a claim of error in jury instructions in a criminal case, this court must first consider the jury instructions as a whole to determine whether error has been committed. [Citations.] We may not judge a single jury instruction in artificial isolation, but must view it in the context of the charge and the entire trial record. [Citation.] An appellate court cannot set aside a judgment on the basis of instructional error unless, after an examination of the entire record, the court concludes that the error has resulted in a miscarriage of justice. [Citation.] A miscarriage of justice occurs only when it is reasonably probable that the jury would have reached a result more favorable to the appellant absent the error. [Citations.]” (People v. Moore (1996) 44 Cal.App.4th 1323, 1330-1331.)
The jury instructions define premeditation and deliberation and these definitions do not support defendant’s argument that the premeditation and deliberation required for first degree murder must occur prior to the strangulation of the victim. CALJIC No. 8.20 provides that “the word ‘premeditated’... means considered beforehand.” CALCRIM No. 5.21 defines “premeditation” as the person having “decided to kill before committing the act that caused death.” Conceptually, there is no difference between the two phrases “considered beforehand” and “decided to kill before committing the act.” Both convey the correct principle that the defendant must have formed the requisite intention before committing the actual act that killed the victim. (See People v. Mayfield, supra, 14 Cal.4th at p. 767 [“ ‘premeditated’ means ‘considered beforehand’ ”].) Some reflection is required as the word “ ‘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. ’ ” (Ibid.) Nothing in these definitions suggest that premeditation and deliberation cannot occur after the strangulation occurs.
An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse. (People v. Perez (1992) 2 Cal.4th 1117, 1125, applying People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson).) 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....” ’ ” (People v. Bolin, supra, 18 Cal.4th at p. 332.)
Case law makes it clear that premeditation and deliberation can occur after the strangulation begins, as long as it occurs before the final amount of pressure is applied that actually kills the victim. Indeed, the California Supreme Court has held that the longer it takes to strangle a victim, the more this suggests deliberation. (See, e.g., People v. Davis, supra, 10 Cal.4th at p. 510 [strangulation of sexual assault victim for up to five minutes suggested deliberate plan to kill her].) Thus, when the method used to kill the victim takes time, the defendant has ample opportunity to consider the deadly consequences of these actions, and therefore the method of killing may support a finding of premeditation and deliberation. (See, e.g., People v. Bonillas (1989) 48 Cal.3d 757, 792 [“ligature strangulation is in its nature a deliberate act”]; People v. Stitely, supra, 35 Cal.4th at p. 544 [The manner of killing suggested premeditation when pathologist testified that lethal pressure had been applied to the victim’s neck for a “ ‘long’ ” time and instead of easing the pressure on the victim’s neck, “defendant used multiple means of strangulation, namely, manual choking sufficient to break the thyroid cartilage, use of a choke hold sufficient to break the cricoid cartilage, and application of a ligature sufficient to damage the neck”]; People v. Bradford (1997) 15 Cal.4th 1229, 1345 [“The circumstance that the manner of killing, ligature strangulation, might be somewhat more time-consuming than other methods, for example firing a weapon, does not obviate the conclusion that defendant might not have premeditated or deliberated before killing the victims”].)
In People v. Hovarter (2008) 44 Cal.4th 983, the court held that evidence of the time it took to strangle the victim supported a finding of premeditation and deliberation. The court stated the following: “Finally, and most tellingly, the evidence shows that [the victim] was strangled with a rope and that her death from asphyxiation would have taken between five and eight minutes.... This prolonged manner of taking a person’s life, which requires an offender to apply constant force to the neck of the victim, affords ample time for the offender to consider the nature of his deadly act. ‘A rational finder of fact could infer that [this manner of killing] demonstrated a deliberate plan to kill her.’ [Citation.]” (Id. at pp. 1019-1020.)
Defendant points to a hypothetical presented by the trial court when arguing that the court’s supplemental instruction was erroneous. When rejecting defendant’s position that the deliberation and premeditation had to occur prior to the beginning of the strangulation, the court provided an example of a defendant who buries the victim alive and then deprives the victim of food and water until death ensued. The court surmised that such a killing would be deliberate and premeditated. We need not consider the validity of the hypothetical, since that is not the fact situation presented here.
The case law does not support defendant’s position that the premeditation and deliberation had to occur prior to defendant’s beginning to strangle the victim. Since strangulation can be a series of acts or applications of pressure, the requirement for first degree murder is that the premeditation and deliberation preceded the actual act or application of pressure that killed the victim. The court’s response to the jury’s question that the premeditation and deliberation had to occur “at any time prior to the moment of death” was not an incorrect statement of the law and the court provided the jurors with the correct instruction when it gave CALJIC No. 8.20.
III. Substantial Evidence of Premeditation and Deliberation
The jury convicted defendant of first degree murder based on a theory of premeditation and deliberation. Defendant contends that substantial evidence does not support the jury’s finding of premeditation and deliberation and therefore the conviction violated his constitutional right to due process. (See Jackson v. Virginia (1979) 443 U.S. 307, 318.)
“In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we ‘examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence––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.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Guerra (2006) 37 Cal.4th 1067, 1129.) “We do not reweigh evidence or reevaluate a witness’s credibility.” (Ibid.)
In Anderson, supra, 70 Cal.2d 15, the California Supreme Court established the following test for deciding whether sufficient evidence supports a finding of premeditation and deliberation: “(1) planning activity; (2) motive (established by a prior relationship and/or conduct with the victim); and (3) manner of killing. [Citations.] ‘[T]his 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 (1) or evidence of (2) in conjunction with either (1) or (3).’ (Anderson, [at p. 27].)” (People v. Sanchez (1995) 12 Cal.4th 1, 32.)
“[T]he Anderson factors do not establish normative rules, but instead provide guidelines for our analysis.... ‘The Anderson analysis was intended as a framework to assist reviewing courts in assessing whether the evidence supports an inference that the killing resulted from preexisting reflection and weighing of considerations. It did not refashion the elements of first degree murder or alter the substantive law in any way.’ ” (People v. Sanchez, supra, 12 Cal.4th at p. 32.)
“In identifying categories of evidence bearing on premeditation and deliberation, Anderson did not purport to establish an exhaustive list that would exclude all other types and combinations of evidence that could support a finding of premeditation and deliberation.... The Anderson factors, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive.” (People v. Perez, supra, 2 Cal.4th at p. 1125.) Nevertheless, although the Anderson factors do not have to be present in any “special combination” or accorded a “particular weight” (People v. Sanchez, supra, 12 Cal.4th at p. 33), the factors do guide our determination of whether the murder occurred as a “result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse. [Citation.]” (People v. Perez, at p. 1125; People v. Hovarter, supra, 44 Cal.4th at p. 1019.)
In the present case, the manner of strangulation supported a finding of deliberation and premeditation. Herrmann testified about the extent of the victim’s injuries. He reported that defendant strangled the victim for probably one to one and one-half minutes and squeezed Coleman’s neck so hard that he broke a bone. Herrmann found abrasions on Coleman’s throat, which suggested that Coleman tried to pull defendant’s hands away. The evidence regarding the scratches showed that defendant needed to adjust his grip several times and therefore he had time to contemplate his actions.
There was also some evidence of planning as the evidence indicated that defendant was waiting for Coleman on 34th and San Pablo Avenues. He not only contacted her or someone else to have a “date” with her but he also had her get into his van and then drove to a different location. (See e.g., People v. Williams (1995) 40 Cal.App.4th 446, 455 [defendant parked his car on a side street to avoid detection].)
Further, defendant’s behavior after he killed Coleman provided evidence the jury could consider as indicating that he acted with premeditation and deliberation. A jury may consider a defendant’s actions after the murder in relation to the manner of killing to show that murder was not impulsive. (See People v. Perez, supra, 2 Cal.4th at p. 1128.) Here, Officer Dutton saw defendant calmly walking away form the murder scene. Defendant made a number of calls to the mother of his child to have her change the registration of the van. Defendant’s calmness, attempt to hide, and calls to the mother of his child showed that he was not overwrought with emotion and supported a conclusion that he had premeditated and deliberated the murder.
Defendant argues that the present case is comparable to People v. Rowland (1982) 134 Cal.App.3d 1. In Rowland, the court held that none of the evidence presented about a fatal strangulation supported a finding of deliberation and premeditation. (Id. at pp. 8-10.) The defendant in Rowland met a woman at a bar and took her home. (Id. at p. 9.) However, the defendant’s live-in girlfriend was also home. (Ibid.) Defendant told his girlfriend some friends were staying over, and that she should stay in her bedroom. (Ibid.) Defendant took the woman into the next bedroom and strangled her with an electrical cord. (Ibid.) The court concluded that the apparent motive “to prevent any sound which would have betrayed the victim’s presence to [the girlfriend]... supports the conclusion that the murder was more of a spontaneous reaction than a premeditated and deliberated plan to end the victim’s life.” (Ibid.) Further, with regard to the manner of killing, the court held that strangulation of the victim with an electrical cord did not suggest that defendant had taken “ ‘thoughtful measures’ to procure a weapon for use against the victim.” (Id. at p. 8.)
In People v. Rowland, supra, 34 Cal.App.3d 1, no expert testified about the length of time it took to kill the victim. Moreover, an expert did not testify about the extent of the victim’s injuries. Here, there was evidence of the extensive injuries suffered by Coleman, which took time to inflict and indicated that Coleman tried to move his hand away. The evidence of the manner of the killing supported the jury’s finding that defendant had sufficient time to consider the nature of his act (see People v. Hovarter, supra, 44 Cal.4th at pp. 1019-1020) and that he killed with premeditation and deliberation. Accordingly, we conclude that substantial evidence supported the finding of first degree murder based on a finding of premeditation and deliberation.
DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Richman, J.
“The word ‘willful,’ as used in this instruction, means intentional.
“The word ‘deliberate,’ which relates to how a person thinks, 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.
“The word ‘premeditated’ relates to when a person thinks and means considered beforehand. One premeditates by deliberating before taking action.
“If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree.
“The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated. The time will vary with different individuals and under varying circumstances.
“The true test is not the duration of time, but rather the extent of the reflection. A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it includes an intent to kill, is not deliberation and premeditation as will fix an unlawful killing as murder of the first degree.
“To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, [he] decides to and does kill.”
“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, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before committing the act that caused death.
“The length of time the 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 the reflection, not the length of time. [¶]... [¶]
“All other murders are of the second degree.
“The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder.”