People v. Perez

831 P.2d 1159, 2 Cal. 4th 1117, 9 Cal. Rptr. 2d 577, 92 Daily Journal DAR 9631, 92 Cal. Daily Op. Serv. 6115, 1992 Cal. LEXIS 3051

• Court: California Supreme Court
• Decided: July 9, 1992
• Docket: S021918
• Status: Published

Opinions

Opinion

PANELLI, J.

We granted review in this case after a divided Court of Appeal reduced defendant’s first degree murder conviction to second degree murder for insufficient evidence of premeditation and deliberation. As explained hereafter, we conclude that the judgment of the Court of Appeal should be reversed.

Facts

Defendant killed Victoria Mesa in her home in Garden Grove on the morning of September 30, 1988. There is no question that he was the perpetrator. The only question is the circumstances under which the murder occurred—that is, whether it was premeditated and deliberate.

Michael Mesa, the victim’s husband, testified that he left for work about 5:40 a.m. on the morning of the murder, while Victoria was still asleep. As part of their morning ritual he would leave her a note and call her before she left for work. Victoria was four months’ pregnant, and Michael was concerned about her condition. This was to be their first child after years of unsuccessful attempts to have a child. In order to protect the pregnancy, Victoria’s cervix had been sewn shut, and she could not have sexual relations. Michael called Victoria the morning of the murder about 7:35 a.m., before she left for work. She usually left for work around 8 a.m. He heard the sound of an automobile engine running in the background. The engine could have been his wife’s car.

A neighbor who generally left for work at the same time as Victoria noticed Victoria’s car in the driveway with exhaust coming from it. He also noticed that the front door to the house was open. The neighbor thought that it was about 8:05 a.m. when he drove by.

Victoria’s employer called Michael about 9:45 a.m. to tell him that Victoria had not come to work. Michael called a neighbor to ask her to check on Victoria. The neighbor enlisted the aid of a gas company meter reader who, upon approaching the house, found the front door slightly ajar; he entered, found Victoria’s body, and immediately left to call the police.

Police officers arrived about 9:50 a.m. and found Victoria’s fully clothed body lying face down with her arms under her head in the bathroom and her legs extending into the hallway. A broken dish and dog food were lying near the body. A six-inch blade of a serrated steak knife was found under Victoria’s head. A broken piece of knife handle was near her feet. The wood appeared to be the same as the handles of knives in the kitchen drawer. There was no sign of a forced entry, and the only unlocked door was the front door.

There was a large pool of blood beneath Victoria’s body and splatters all over the adjacent walls and carpet. Blood was found in every room except the nursery. There were blood drippings throughout the floor of the master bedroom. Dresser drawers were open, and drops of blood were on the clothing inside the drawers. Jewelry boxes were open and had drops of blood inside. There was blood on the sink in the master bathroom. Four Band-Aid wrappers were lying on the counter; a folded Band-Aid saturated with blood was found in the entry of the master bedroom. A guest bedroom had bloodstains in the doorway of the room almost on a direct line with the light switch.

The entire kitchen was peppered with blood spots. There were drops of blood on the refrigerator and counter top and smeared blood around the handles of cupboards and drawers. Many of the cupboards and drawers were open. There were drops of blood inside some of the drawers, including one containing knives.

Victoria’s purse was on top of a table in the kitchen. The contents of the purse were lying on the table. A removable car stereo was also on the table. All of the items had drops of blood on them.

The victim’s husband found nothing missing from the house except for one of his dress shirts.

According to the pathologist who performed the autopsy, Victoria bled to death. She had sustained blunt force trauma to her eyes, nose and lips, probably from a fist. There were about 38 knife wounds, including 26 stab and slash wounds and 12 puncture wounds. There were deep stab and slash wounds about the head, face, and neck, in the carotid artery, around the spinal column, and on the back of the arms. There were defensive wounds on her forearms, wrists, and hands. The injuries to the front part of the body were inflicted before the injuries to the back of the body. Two different knives were used. Most of the wounds were inflicted by a single-blade knife consistent with the one found under the victim’s body. Three wounds in the back were inflicted by a double-edged knife. These wounds appeared to have been inflicted after the victim was dead.

The only connection between defendant and the victim and her husband was that they had attended the same high school some 10 years earlier. Defendant had played sports with Michael Mesa. Defendant lived about two and a quarter miles away and would drive by the Mesa house about twice a week in the early evening and wave to Michael as the latter was working in the yard. Defendant’s fingerprint was found on the wall in the hallway near the victim’s body and on a bloody Band-Aid wrapper found in the master bathroom. Analysis of blood scrapings from the master bedroom, wall phone, kitchen floor, blood-soaked towel on the water cooler, and blood-soaked Band-Aid from the master bedroom revealed that they were consistent with 1 percent of the population, which includes defendant. To Michael Mesa’s knowledge, defendant had never been in his house before.

Defendant’s sister testified that he arrived home about 9 a.m. on the day of the murder. His hand was cut, and he was sweaty and pale. Defendant told her he had cut his hand on a saw. Defendant said he was going to drive to his father’s jobsite. His sister offered to drive him, but defendant declined.

At 9:20 a.m. the same day, defendant was treated at a hospital emergency room for severe cuts on his right hand and smaller cuts on his left hand. Defendant told the nurse that he had cut himself with a Skil Saw. Based on her experience, the nurse did not believe that defendant’s injury was the result of having been cut by a Skil Saw.

As a result of information learned from the hospital, police officers went to defendant’s home that night. Defendant told the officers he had injured himself at a jobsite at a private residence in Anaheim while using a Skil Saw. Defendant was unable to show the officers where the jobsite was. Defendant’s father produced for officers the shirt that Michael Mesa identified as the one missing from his house.

Defendant did not testify, and he made no statements about the offense. In argument, defense counsel challenged the sufficiency of the evidence of first degree murder and suggested that whoever killed Victoria had acted in a rage. The jury returned a verdict of guilty of first degree, premeditated and deliberate murder. As previously mentioned, a divided Court of Appeal reduced the conviction to second degree murder.

Discussion

Sufficiency of Evidence of Premeditation and Deliberation

The People contend that the Court of Appeal erred in finding the evidence of premeditation and deliberation insufficient to support the judgment. Before proceeding to that question, we find it helpful to review the definition of premeditation and deliberation that was given to the jury, CALJIC No. 8.20, which we have found to be a correct statement of the law. (People v. Lucero (1988) 44 Cal.3d 1006, 1021 [245 Cal.Rptr. 185, 750 P.2d 1342].) CALJIC No. 8.20 defines premeditated and deliberate murder as follows:

“All murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree.

“The word ‘willful’ as used in this instruction, means intentional.

“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. The word ‘premeditated’ means considered beforehand.

“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 include[d] an intent to kill, is not such 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.”

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 that was previously set forth. 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. (People v. Johnson (1980) 26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255]; see also Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 572-574, 99 S.Ct. 2781].) The standard of review is the same in cases such as this where the People rely primarily on circumstantial evidence. (People v. Bean (1988) 46 Cal.3d 919, 932 [251 Cal.Rptr. 467, 760 P.2d 996].) “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, 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 be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.” (Id. at pp. 932-933, citations and internal quotation marks omitted.)

In challenging the Court of Appeal’s reversal of the first degree murder conviction, the People argue that there is sufficient evidence to support the jury’s verdict of premeditated and deliberate murder under traditional standards of review and that the Court of Appeal majority misapplied People v. Anderson (1968) 70 Cal.2d 15 [73 Cal.Rptr. 550, 447 P.2d 942] in reaching a contrary determination. We agree.

In People v. Anderson, supra, 70 Cal.2d 15, this court surveyed a number of prior cases involving the sufficiency of the evidence to support findings of premeditation and deliberation. (Id. at p. 26.) From the cases surveyed, the court distilled certain guidelines to aid reviewing courts in analyzing the sufficiency of the evidence to sustain findings of premeditation and deliberation. The Anderson analysis was intended only as a framework to aid in appellate review; it did not propose to define the elements of first degree murder or alter the substantive law of murder in any way. (People v. Daniels (1991) 52 Cal.3d 815, 869-870 [277 Cal.Rptr. 122, 802 P.2d 906].) Nor did Anderson change the traditional standards of appellate review that we have set forth above. The Anderson guidelines are descriptive, not normative. (People v. Thomas (1992) 2 Cal.4th 489, 516-517 [7 Cal.Rptr.2d 199, 828 P.2d 101].) The goal of Anderson was to aid reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse. (People v. Anderson, supra, 70 Cal.2d at p. 27.)

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. (People v. Anderson, supra, 70 Cal.2d at p. 27.) From the cases surveyed, the Anderson court identified three categories of evidence pertinent to the determination of premeditation and deliberation: (1) planning activity, (2) motive, and (3) manner of killing. Regarding these categories, Anderson 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 (1) or evidence of (2) in conjunction with either (1) or (3).” (Ibid.) It is thus evident from the court’s own words that it was attempting to do no more than catalog common factors that had occurred in prior cases. 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.

The Court of Appeal, in the lead opinion, while purporting to follow the Anderson analysis, failed to focus on the evidence presented and the possible inferences drawn therefrom, but instead reviewed the theories articulated in the prosecutor’s argument. It is elementary, however, that the prosecutor’s argument is not evidence and the theories suggested are not the exclusive theories that may be considered by the jury. Moreover, the argument was not entirely indicative of the prosecution’s approach to the case because much of it was aimed at rebutting innuendo injected by the defense cross-examination and argument. When the lead opinion finally focused on the evidence presented, it refused to credit any inference advanced in support of motive or deliberate manner of killing. In so doing, the lead opinion did not so much misapply the Anderson factors as it did simply disregard settled principles of appellate review. In effect, the lead opinion substituted its judgment for that of the jury. Even if we might have made contrary factual findings or drawn different inferences, we are not permitted to reverse the judgment if the circumstances reasonably justify those found by the jury, It is the jury, not the appellate court, that must be convinced beyond a reasonable doubt. Our task and responsibility is to determine whether that finding is supported by substantial evidence.

We now turn to that task. From the evidence presented, the jury reasonably could have inferred the following: Defendant surreptitiously entered the house while Victoria was warming up her car; there were no signs of forced entry or of the presence of an additional car. Defendant surprised her as she was carrying the dog food; the broken dog dish and dog food were strewn about the floor. Defendant first beat Victoria about the head and neck with his fists. Then he stabbed her with a steak knife obtained from the victim’s kitchen; the handle and blade were consistent with knives in the kitchen drawer. When that knife broke, cutting him, defendant went in search of another knife; drippings of defendant’s blood were found all over the kitchen, including a drawer containing knives. Regardless of defendant’s motive for entering the house, once confronted by Victoria, who knew him and could identify him, he determined to kill her to avoid identification.

As so viewed, the evidence is sufficient to support the jury’s findings of premeditation and deliberation. Evidence of planning activity is shown by the fact that defendant did not park his car in the victim’s driveway, he surreptitiously entered the house, and he obtained a knife from the kitchen. (See People v. Wharton (1991) 53 Cal.3d 522, 546-548 [280 Cal.Rptr. 631, 809 P.2d 290]; People v. Haskett (1982) 30 Cal.3d 841, 849-850 [180 Cal.Rptr. 640, 640 P.2d 776].) As to motive, regardless of what inspired the initial entry and attack, it is reasonable to infer that defendant determined it was necessary to kill Victoria to prevent her from identifying him. (See People v. Bonillas (1989) 48 Cal.3d 757, 792 [257 Cal.Rptr. 895, 771 P.2d 844]; People v. Alcala (1984) 36 Cal.3d 604, 627 [205 Cal.Rptr. 775, 685 P.2d 1126]; People v. Haskett, supra, 30 Cal.3d at p. 850.) She was acquainted with him from high school and obviously would have been able to identify him. The manner of killing is also indicative of premeditation and deliberation. The evidence of blood in the kitchen knife drawer supports an inference that defendant went to the kitchen in search of another knife after the steak knife broke. This action bears similarity to reloading a gun or using another gun when the first one has run out of ammunition.

Thus, though the evidence is admittedly not overwhelming, it is sufficient to sustain the jury’s finding. As we have stated, the 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. (See People v. Wharton, supra, 53 Cal.3d at p. 546; People v. Lucero, supra, 44 Cal.3d at p. 1020.) We have previously observed that premeditation can occur in a brief 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 . . . .” (People v. Thomas (1945) 25 Cal.2d 880, 900 [156 P.2d 7]; accord People v. Kelly (1990) 51 Cal.3d 931, 956 [275 Cal.Rptr. 160, 800 P.2d 516]; People v. Miranda (1987) 44 Cal.3d 57, 87 [241 Cal.Rptr. 594, 744 P.2d 1127].)

Defendant challenges the strength of the inferences we have set forth, claiming that they are speculative and insubstantial. He asserts that it is speculative that the steak knife came from the kitchen. We disagree. Although one might think of other possibilities, the most reasonable inference is that the knife came from the kitchen, because it matched the kitchen knives and the victim’s husband testified that he and Victoria were well-organized and kept everything in its place. (Cf. Hemphill v. United States (D.C. Cir. 1968) 402 F.2d 187, 190-191 [131 App.D.C. 46] [government could not close gap in proof by relying on assumption that people do not leave hammers lying around].) Defendant dismisses reliance on the use of the second knife by noting that the coroner’s testimony indicated that the wounds inflicted by it were post mortem and in nonvital areas. There is no indication, however, that it would have been readily apparent, at the time of the assault, that the victim was already dead. She was knocked to the ground and lay bleeding to death; defendant would not have known the precise moment of death or which wound would cause it. Moreover, the jury could reasonably infer that the post mortem wounds were inflicted to make certain the victim was dead. Given that the post mortem wounds were inflicted after defendant had broken the first knife and used a second knife to inflict these wounds, it is difficult to characterize defendant’s conduct as “mere rash and unconsidered impulse.” Some period of time necessarily must have elapsed between the first and second set of wounds. While this conduct, in itself, may not necessarily support a finding of premeditation, in conjunction with the manner of killing, it could easily have led the jury to infer premeditation and deliberation.

Additionally, the conduct of defendant after the stabbing, such as the search of dresser drawers, jewelry boxes, kitchen drawers and the changing of a Band-Aid on his bloody hand, would appear to be inconsistent with a state of mind that would have produced a rash, impulsive killing. Here, defendant did not immediately flee the scene. Again, while not sufficient in themselves to establish premeditation and deliberation, these are facts which a jury could reasonably consider in relation to the manner of killing.

Defendant also claims that the weight of the evidence in this case is more comparable to that in People v. Anderson, supra, 70 Cal.2d 15 than it is to that in People v. Wharton, supra, 53 Cal.3d 522.

In People v. Anderson, supra, 70 Cal.2d 15, the defendant lived with the family of the 10-year-old victim. He killed the victim in a brutal assault involving over 60 knife wounds all over the child’s body. Although there was no question that defendant was the perpetrator, there were no eyewitnesses to the crime and there was no explanation of what led up to the murder. The defendant did not testify or confess. There was, however, evidence of the defendant’s subsequent efforts to conceal the crime. On this record, our court concluded that the evidence was insufficient to demonstrate that the murder was premeditated or deliberate. We therefore reduced the conviction from first to second degree murder.

In People v. Wharton, supra, 53 Cal.3d 522, the defendant killed the woman with whom he had been living, stuffed her body in a barrel, and left it in the apartment. The autopsy revealed that the victim had been struck three times on the head with a blunt instrument, probably a hammer. A hammer was found hidden under a mattress, and the hammer was missing from a toolbox kept in the garage. The defendant confessed, claiming that he had killed the victim in an uncontrolled rage. On appeal, we found the evidence sufficient to support the jury’s finding of premeditation and deliberation. The evidence indicated that the defendant either retrieved the hammer in advance to have it accessible in the event of an argument, or that the defendant became angry during the argument and went to the garage to obtain the hammer and kill the victim while she slept. Either version was sufficient to support planning activity. We also identified a plausible motive—the defendant was selling some of the victim’s belongings. Though admitting that these were not the only inferences that could be drawn, we found the evidence of planning and motive sufficient despite the fact that the manner of killing was not in itself indicative of a preconceived design to kill. (Id. at p. 548.)

In our view, the evidence in the present case is more comparable to that in People v. Wharton, supra, 53 Cal.3d 522, than it is to that in People v. Anderson, supra, 70 Cal.2d 15. Defendant’s obtaining of the steak knife from the kitchen is indicative of planning activity. A plausible motive is evident from the fact that the victim was acquainted with defendant. After defendant initially surprised and attacked Victoria, he then decided it was necessary to silence her to prevent her from identifying him. Finally, the manner of the killing is indicative of premeditation. Defendant went searching for another knife after the first knife broke. Even if the initial knifing was spontaneous, defendant had time to reflect upon his actions when the knife broke. That he went searching for another knife is indicative of a reasoned decision to kill. Thus, the evidence here is actually stronger than that in Wharton.

Accordingly, we conclude that the evidence is sufficient to sustain the jury’s finding of premeditation and deliberation and that the judgment of the Court of Appeal should be reversed.

Failure to Instruct Sua Sponte

The Court of Appeal’s disposition had obviated the need to address the other contention that defendant had raised—namely, whether the trial court had erred in failing to instruct sua sponte on the provocation sufficient to reduce first degree murder to second degree (CALJIC No. 8.73). Our disposition, however, revives the necessity to address the claim. The court instructed on the provocation that would reduce a murder to voluntary manslaughter (CALJIC No. 8.42) at the request of the prosecution. The prosecution withdrew its request for CALJIC No. 8.73, and that instruction was not given. CALJIC No. 8.73 states: “When the evidence shows the existence of provocation that played a part in inducing the unlawful killing of a human being, but also shows that such provocation was not such as to reduce the homicide to manslaughter, and you find that the killing was murder, you may consider the evidence of provocation for such bearing as it may have on the question of whether the murder was of the first or second degree.”

It is settled that a court must instruct on general principles of law that are closely and openly connected with the facts of the case. (People v. Sedeno (1974) 10 Cal.3d 703, 715 [112 Cal.Rptr. 1, 518 P.2d 913].) The duty to instruct sua sponte on general principles encompasses the duty to instruct on defenses that are raised by the evidence, and on lesser included offenses when the evidence has raised a question as to whether all of the elements of the charged offense were present. (Id. at pp. 715-716.)

The evidence in the present case did not give rise to a duty to instruct sua sponte on the provocation that would reduce first degree murder to second degree murder. There was no evidence of any provocation, reasonable or unreasonable. People v. Valentine (1946) 28 Cal.2d 121 [169 P.2d 1] does not help defendant because, unlike that case, there was no testimony whatsoever about the existence of a quarrel. The fact that the prosecutor requested a heat of passion instruction for manslaughter does not establish that the evidence would have necessitated a sua sponte instruction. Such instructions are commonly requested out of an abundance of caution.

Conclusion

The judgment of the Court of Appeal is reversed.

Lucas, C. J., Arabian, J., Baxter, J., and George, J., concurred.