People v. Summers

147 Cal. App. 3d 180, 195 Cal. Rptr. 21, 1983 Cal. App. LEXIS 2180

• Court: California Court of Appeal
• Decided: September 21, 1983
• Docket: Crim. 13931
• Status: Published

Opinions

Opinion

COLOGNE, Acting P. J.

George Edward Summers appeals his court-tried conviction and sentence to prison for second degree murder with use of a firearm (Pen. Code,¹ §§ 187, 12022.5). The trial court first found Summers guilty of first degree murder but reduced the degree pursuant to section 1181.

On September 28, 1981, Summers went to a bar and found a person who could lead him to Larry Wood, went home, put on a shirt and cowboy hat, armed himself with a loaded .38 revolver, drove a car other than his own to Wood’s residence, entered with gun drawn and shot Wood in the chest, killing him, while the two struggled for control of the gun.

Several weeks earlier, Summers sold some amphetamines to Wood who had come to Summers’ residence with another man to make the purchase. Wood told his wife how easy it would be to steal narcotics from Summers and returned to Summers’ place, stealing $500 to $600 worth of amphetamines and some cash. Summers later told his roommate, Marina Villalpando (Rina), he thought she had set him up for the theft and he announced they were not going to get away with it; no one rips him off. Summers found out Rina had a friend named Larry who was bragging about ripping people off. He also determined Mark Martin (Marcos), another friend of Rina, knew Larry. He saw Marcos at the bar in the evening of September 28 and Marcos mentioned Larry'Wood owed him some money and a shirt. Summers said he, too, had some business with Larry and volunteered to give Marcos a ride if he would show him where Wood lived. Marcos agreed and the two left, first going to Summers’ home where he armed himself, unknown to Marcos, and donned a cowboy hat and outer shirt. He also changed cars, driving away in a Volkswagen “bug” belonging to a customer of his upholstery business instead of his Mercedes which he had at the bar. When they parked near Wood’s apartment, Summers took with him a wad of cotton upholstery material that was in the car.²

At Wood’s door, Marcos knocked and was invited in, but the door was locked. Wood then came to the door and, as Marcos said something about Wood having his shirt, Summers stepped by Marcos and, waving the gun, in the air, pushed Wood back. As Wood backed up, Summers said “[y]ou stole my dope, punk,” to which Wood responded, “[y]ou got the wrong guy. I didn’t do it. Let’s talk about it.” Summers lowered the gun as he got closer and pushed it against Wood’s chest. Wood grabbed the gun’s barrel and a struggle ensued, during which a first shot went into a wall. Marcos heard someone coming up the stairs to Wood’s apartment, closed the apartment door and began walking away. He told the person on the stairs, Wood’s son, not to go into the apartment. When he was at the bottom of the stairs, Marcos heard a second shot. Wood, mortally wounded, staggered out of the apartment and fell over the railing to the ground below. Wood’s wife was in the apartment and witnessed most of Summers’ attack on her husband.

Summers caught up with Marcos who told him he did not know what he did but to get away from Marcos. Summers complied, driving away leaving Marcos behind. Later, Summers threw away the gun as well as the hat and shirt he wore at the killing.

Summers’ defense essentially consisted of his testimony he sought out Wood to find out if he was the one who stole his amphetamines and money and to locate his son who was the subject of some threatening telephone calls after the theft and who could not be located on the day of the killing. Summers claimed his amphetamines were stolen at gunpoint and the robbers had threatened to harm his son if he reported the crime. He denied intending to kill Wood, explaining he took the cotton wadding to shove in Wood’s mouth as the amphetamine robbers had done to him, not to silence the gunfire. He testified his first question to Wood was “[wjhere is my boy?” and Wood said, “[yjou’ve got the wrong guy,” to which Summers said “no.” Wood then said, “[ljet’s talk,” and Summers responded “[yjou stole my dope, punk.” Wood then started backing around the front door. Summers thought he was going for a weapon and lowered the gun to point it at Wood’s chest at which time the struggle ensued.

Summers offered explanations for the incriminating evidence against him.

He contends the judgment must be reversed with instructions to enter a judgment of acquittal or must be modified to reduce the verdict to involuntary manslaughter because there was insufficient evidence of implied malice to constitute second degree murder.

The contention cannot prevail because it relies on evidence and inferences which were not accepted by the trial court as trier of fact. Summers’ argument contravenes the basic rule: “We ‘must view the evidence in a light most favorable to [the People] and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] The People may rely on circumstantial evidence to connect the defendant with the commission of the crime charged and to establish beyond a reasonable doubt that he committed it. [Citations.] If the circumstances reasonably justify the trial court’s findings, an appellate court cannot reverse merely because the circumstances might also be reasonably reconciled with a contrary finding. [Citations.] The test on appeal becomes whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. [Citation.]’ (People v. Mosher (1969) 1 Cal.3d 379, 395 . . . ; see also People v. Johnson, supra, 26 Cal.3d 557, 575-577 [162 Cal.Rptr. 431, 606 P.2d 738].)” (People v. Love (1980) 111 Cal.App.3d 98, 106 [168 Cal.Rptr. 407].)

On the question of malice, we apply the following definition outlined by this court in the Love case, supra, 111 Cal.App.3d 98, as we review the substantiality of the evidence: “. . . Penal Code section 188 defines implied malice as ‘. . . when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.’ . . .

“ ‘The mental state constituting malice aforethought does not presuppose or require any ill will or hatred of the particular victim. [Citation.] When a defendant “ ‘with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death, ’” he acts with malice aforethought. [Citations.]’ . . . Malice is evidenced ‘by circumstances indicating that the killing was proximately caused by “ ‘an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.’ ” . . .’ [Citation.]

“. . . In each such case where malice is found, there is an element of viciousness—an extreme indifference to the value of human life. [Citation.] It is where a defendant, free from any mental impairment or not acting in the heat of passion or on adequate provocation, makes a voluntary choice to commit a person-endangering act. [Citation.]” (People v. Love, supra, 111 Cal.App.3d 98, 105-106.)

Malice, of course, can be “express,” which is manifested by evidence showing a deliberate intent unlawfully to kill (Pen. Code, § 188).

Viewing all of the evidence, as we must (People v. Johnson (1980) 26 Cal.3d 557, 577 [162 Cal.Rptr. 431, 606 P.2d 738]), but doing so in a light most favorable to the People, it is clear Summers entertained malice. His barter of a ride to find out where Wood lived, his making a special trip to arm himself with the means to effect deadly force on Wood, his concealment of the revolver even from Marcos, his efforts to confound the possibility of identification by changing his attire and vehicle and his immediate confrontation of the retreating Wood with revolver pointed to Wood’s chest accompanied by the words rejecting Wood’s attempt to talk it out, all demonstrate Summers’ determination to engage in activity involving a high probability death would result. The facts show intentional conduct evidencing extreme indifference to the value of human life. Summers entertained malice. Substantial evidence supports the conclusion of the trial court as trier of fact that Summers is guilty of second degree murder.³

Judgment affirmed.

Lewis, J.,

* concurred.

1 All statutory references are to the Penal Code unless otherwise specified.

2 The prosecution argues this was used to muffle the sound of the gun, but the evidence is not clear exactly how it was used.

3 We find somewhat misleading Summers’ attempt to label as findings certain statements of the trial court during the motion hearing considering reduction of degree. We observe that after all the trial court’s statements Summers quotes or partially quotes as if they were findings, the court informed counsel “I am listening to both of you. I still have an open mind.” The statements were merely points of discussion between court and counsel, not findings.

Assigned by the Chairperson of the Judicial Council.