Opinion
B226308
11-10-2011
THE PEOPLE, Plaintiff and Respondent, v. CARLOS LUCAS, Defendant and Appellant.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA358376)
APPEAL from a judgment of the Superior Court of Los Angeles County, Michael E. Pastor, Judge. Affirmed.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant, Carlos Lucas, appeals the judgment entered following his conviction for premeditated attempted murder, willful infliction of corporal injury, child endangerment (3 counts), and disobeying a domestic relations court order, with enhancements for deadly weapon use and inflicting great bodily injury (Pen. Code, §§ 664/187, 273.5, 273a, subd. (b), 273.6, 12022, 12022.7). He was sentenced to state prison for a term of six years to life.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.
1. Prosecution evidence.
Teresa Martinez met defendant Lucas in 1993, and lived with him from 1995 until 2004. They had three children whose ages at the time of trial were nine, seven and five.
Martinez testified she stopped living with Lucas after a violent incident in May 2004. Lucas had come home drunk at 1:00 a.m., awakened Martinez and demanded dinner. After Martinez prepared some food, Lucas threw it on the floor because it wasn't the kind he liked, and he pushed her into a wall. Martinez, who was pregnant at the time, responded by throwing a shoe at Lucas. The shoe hit him in the mouth and bloodied his teeth. Lucas got a knife from the kitchen, put it to Martinez's throat and said, "You are going to pay for what you did." He threatened to kill her and held the knife to her throat for 10 or 15 minutes. One of the children called the police. Shortly after this incident, Martinez told Lucas to move out.
In April 2008, Lucas came to Martinez's residence one morning to get the children, claiming she had kidnapped them. He threw a cordless telephone at her, hitting her in the forehead. After Lucas called the police, he and Martinez argued about which of them would be arrested when the officers arrived.
In May 2008, Martinez obtained a restraining order which required Lucas to stay 100 yards away from her.
In February 2009, one of the children let Lucas into Martinez's home without her permission. Lucas told Martinez he was going to kill her and then throw himself from a window. Martinez called the police, but Lucas left before they arrived.
In June 2009, Martinez was living in an apartment complex. The complex was protected by a locked front gate to which Lucas did not have a key. Nevertheless, Lucas found a way inside one day and approached Martinez as she was cleaning the hallway outside her apartment. When Martinez told him to leave, Lucas replied, "What? Is the police going to be watching over you 24 hours?"
On Sunday, June 28, 2009, Martinez was again cleaning the hallway outside her apartment when she saw Lucas walking toward her. She asked what he was doing there because he was two days late for a scheduled visit with the children, and in any event he was always supposed to wait for them downstairs. Lucas smelled of alcohol and Martinez said he couldn't take the children because he was drunk. They argued in the hallway.
Martinez testified she then entered her apartment and went into the living room to call the police, leaving Lucas standing at the doorway. When she told the 911 operator about the restraining order, she was given a phone number to call. When she called that number, she was told a patrol car would be sent. As Martinez was turning around to put the phone down, she felt a blow to the right side of her head. Lucas had hit her with a metal baseball bat. He kept hitting her in the head with the bat, breaking one of her fingers when she tried to protect herself. He also hit her in the back three or four times. The children were standing there watching. They were crying and screaming, "Don't hit her. Don't hit her."
Their oldest child testified he saw Lucas hit Martinez with the bat. He did not remember how many times Martinez got hit with the bat, but it was more than once. Afterward, the child put the bat "[b]ack in its place" under the bed.
Martinez testified she was drenched in blood, which was flowing from her head. At the hospital, she received metal staples for her head wounds and surgery on her broken finger. She was hospitalized for a week.
After hearing the recording of a 911 call made after Lucas had hit Martinez with the bat, Martinez testified she called the police twice, once before and once after the attack.
After Lucas was arrested, he told police he had gone to Martinez's apartment to visit the children and then gotten into a fight with Martinez. Lucas said Martinez tried to hit him with a bat, but he ducked and she missed. He then took the bat away from her, hit her on the head once and left the apartment.
2. Defense evidence.
Lucas did not testify. The defense theory was that he was the one who had been a long-time victim of spousal abuse. There was evidence Martinez was substantially larger than Lucas and that, in the past, he sometimes complained to the police she had physically attacked him. In February 2004, Lucas went to the police with a minor head laceration and reported Martinez had assaulted him. There was evidence that during the May 2004 incident, Martinez broke Lucas's teeth when she hit him in the mouth three times with her high-heeled shoe; Lucas was taken to the hospital where he received stitches in his gums.
CONTENTIONS
1. There was insufficient evidence to support the attempted murder conviction.
2. [By the Attorney General] The trial court miscalculated Lucas's sentence on count 1.
DISCUSSION
1. There was sufficient evidence of premeditated attempted murder.
Lucas contends there was insufficient evidence to sustain his premeditated attempted murder conviction. This claim is meritless.
a. Legal principles.
"In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence - that is, 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. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] ' "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt. ' "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.]" ' [Citation.]" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
" 'An appellate court must accept logical inferences that the [finder of fact] might have drawn from the circumstantial evidence.' [Citation.] 'Before the judgment of the trial court can be set aside for the insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the [finder of fact].' [Citation.]" (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) "Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error. [Citation.] Thus, when a criminal defendant claims on appeal that his conviction was based on insufficient evidence of one or more of the elements of the crime of which he was convicted, we must begin with the presumption that the evidence of those elements was sufficient, and the defendant bears the burden of convincing us otherwise. To meet that burden, it is not enough for the defendant to simply contend, 'without a statement or analysis of the evidence, . . . that the evidence is insufficient to support the judgment[] of conviction.' [Citation.] Rather, he must affirmatively demonstrate that the evidence is insufficient." (Ibid.)
An attempt to commit a crime consists of (1) the specific intent to commit the target crime, and (2) a direct but ineffectual act done towards its commission. (People v. Swain (1996) 12 Cal.4th 593, 604.) Specific intent must often be inferred from circumstantial evidence. (People v. Cole (1985) 165 Cal.App.3d 41, 48.)
People v. Anderson (1968) 70 Cal.2d 15, a murder case, discussed the following types of premeditation and deliberation evidence: "The type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: (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 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]; (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). [¶] 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 (1) or evidence of (2) in conjunction with either (1) or (3)." (Id. at pp. 26-27.)
"We do not distinguish between attempted murder and completed first degree murder for purposes of determining whether there is sufficient evidence of premeditation and deliberation. [Citation.]" (People v. Herrera (1999) 70 Cal.App.4th 1456, 1462, fn. 8.)
b. Discussion.
Contrary to Lucas's assertion that there was insufficient evidence of intent to kill, let alone premeditation and deliberation, each of the three Anderson factors was amply established by substantial evidence.
It appears Lucas and Martinez had an extremely tumultuous relationship, one which may have entailed mutual physical violence. For Lucas's part the evidence showed that, prior to the bat attack, he had threatened to kill Martinez at least once implicitly and twice explicitly, one of those times while he was holding a knife to her throat. This history provided more than substantial evidence Lucas had a motive to kill Martinez. (See, e.g., People v. Lasko (2000) 23 Cal.4th 101, 112 [evidence defendant threatened to kill victim six weeks before fatal attack showed intent to kill].)
The very nature of Lucas's attack, striking Martinez in the head multiple times with a baseball bat and then failing to seek emergency medical attention, amply showed he was trying to kill her. (See People v. Lasko, supra, 23 Cal.4th at p. 112 [hitting victim in head with baseball bat one or more times with extreme force, and not calling ambulance, showed intent to kill]; see also People v. Silva (2001) 25 Cal.4th 345, 369 [multiple shotgun wounds inflicted on victim indicated manner of killing consistent with premeditation and deliberation].)
That Lucas stopped before killing Martinez does not prove he lacked intent to kill. He might have feared bystanders would overhear the children's screams, had a last-minute change of heart, or believed she was already dying. (See People v. Smith (2005) 37 Cal.4th 733, 741 [that perpetrator "may have fired only once and then abandoned his efforts out of necessity or fear" does not compel conclusion he lacked intent to kill "in the first instance"]; People v. Dillon (1983) 34 Cal.3d 441, 455 ["last-minute change of heart by the perpetrator should not be permitted to exonerate him" of attempt to commit crime]; People v. Fields (1976) 56 Cal.App.3d 954, 956-957 [attempted kidnapping conviction affirmed where defendant grabbed 13-year-old, ordered her into his car and said he would hit her when she refused, but then immediately released the child because she threatened to scream].)
There was also evidence of planning activity. The evidence showed that while Martinez was talking on the phone in the living room, Lucas went to find the baseball bat, which was in the bedroom, either under the bed or inside the closet. " 'The process of premeditation and deliberation 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.]' " (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)
In the face of all this evidence establishing premeditated attempted murder, Lucas argues the evidence was insufficient because Martinez's testimony was inherently improbable. Not so.
"To warrant the rejection of the statements given by a witness who has been believed by the [jury], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions." (People v. Barnes (1986) 42 Cal.3d 284, 306.) "The inherently improbable standard addresses the basic content of the testimony itself - i.e., could that have happened? - rather than the apparent credibility of the person testifying. Hence, the requirement that the improbability must be 'inherent,' and the falsity apparent 'without resorting to inferences or deductions.' [Citation.] In other words, the challenged evidence must be improbable ' "on its face" ' [citation], and thus we do not compare it to other evidence (except, perhaps, certain universally accepted and judicially noticeable facts). The only question is: Does it seem possible that what the witness claimed to have happened actually happened? [Citation.]" (People v. Ennis (2010) 190 Cal.App.4th 721, 729.)
Lucas points to minor inconsistencies in testimony regarding peripheral details, inconsistencies which did no more than go to witness credibility. (See People v. Thompson (2010) 49 Cal.4th 79, 124-125 [claim of inherently improbable evidence which depended "on the asserted inconsistencies that defendant argues exist between [the witness's] testimony and other evidence presented at trial" rejected as "attempt to reargue the evidence on appeal"]; People v. Ennis, supra, 190 Cal.App.4th at p. 730 [claim of inherent improbability fails because defendant "does not claim it would be impossible for him to have committed the acts of sexual abuse attributed to him, but instead suggests the jury should have inferred or deduced from the circumstances in which these allegations arose, or the other evidence admitted in the case, that each of these witnesses was lying"].)
Here, the most significant disputed issue concerned the number of times Lucas hit Martinez with the bat. Lucas told police he hit Martinez only once, which was contradicted by Martinez's testimony, the physical evidence of her injuries, and the eyewitness observations of their oldest child. The day after the incident, the child told police Lucas hit Martinez four times with the bat, and at trial he testified that, although he could not recall exactly how many times Martinez had been hit, it was more than once. While the precise circumstances in which the bat attack occurred might not be completely unambiguous, it was clear Lucas had hit Martinez in the head with a baseball bat multiple times.
There was sufficient evidence to sustain Lucas's conviction for premeditated attempted murder.
2. Trial court did not miscalculate Lucas's sentence.
The Attorney General contends the trial court miscalculated Lucas's indeterminate sentence by failing "to declare a minimum term of confinement before adding the applicable enhancements to that term." This claim is meritless.
The Attorney General acknowledges the trial court properly sentenced Lucas to a determinate term of six years, and correctly added that determinate term to the indeterminate life term the court imposed for premeditated attempted murder. But the Attorney General argues the trial court "erred because it neglected to declare appellant's minimum term of confinement before being eligible for parole on the indeterminate sentence." The Attorney General asserts the determinate enhancement terms must be added to the minimum parole term, and that Lucas's "correct sentence should effectively be 13 years to life."
That determinate term consisted of a one-year enhancement for deadly weapon use (§ 12022, subd. (b)(1)), plus a five-year great bodily injury enhancement (§ 12022.7).
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But, as Lucas points out, his term already is effectively 13 years to life by operation of section 3046, subdivision (a)(1), which provides that any prisoner serving a life sentence may not be paroled until he or she has served at least seven years, and section 669, which provides that "[w]henever a person is committed to prison on a life sentence which is ordered to run consecutive to any determinate term of imprisonment, the determinate term of imprisonment shall be served first and no part thereof shall be credited toward the person's eligibility for parole as calculated pursuant to Section 3046."
There was no sentencing error.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J. We concur:
KITCHING, J.
ALDRICH, J.