Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County, Super. Ct. No. 30168, Ronald W. Hansen, Judge.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Kathleen A. McKenna and Kelly C. Fincher, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
Defendant Arturo Alvarez appeals from a judgment of conviction of multiple crimes against Elvia Gill, his girlfriend and the mother of his child. On appeal, defendant contends (1) there was insufficient evidence to support his conviction of attempted murder, and (2) the trial court violated Penal Code section 654 by sentencing him to consecutive terms for his convictions of attempted murder and making a criminal threat. We will affirm.
PROCEDURAL BACKGROUND
On July 28, 2006, the Merced County District Attorney filed an information charging defendant with seven felony counts. The first four counts were alleged to have occurred on May 11, 2006, and the remaining counts were alleged to have occurred on April 25, 2006. Specifically, the information charged defendant with attempted murder (Pen. Code, §§ 664, 187; count 1); assault by means of force likely to produce great bodily injury or with a deadly weapon (§ 245, subd. (a)(1); counts 2 & 6); dissuading a witness (§ 136.1, subd. (c)(1); counts 3 & 7); making a criminal threat (§ 422; count 4); and corporal injury to a spouse or cohabitant (§ 273.5, subd. (a); count 5). Count 1 included the special allegation that defendant was armed with a dangerous weapon during the commission of the offense (§ 12022). Count 2 included the special allegation that defendant personally used a dangerous and deadly weapon within the meaning of sections 667 and 1192.7 (§ 969f). Counts 1 and 2 each included the special allegation that defendant inflicted great bodily injury during an act of domestic violence (§ 12022.7, subd. (e)).
Further statutory references are to the Penal Code unless otherwise specified.
On September 22, 2006, a jury found defendant guilty on counts 1, 2, 4, 5, and 6. As to counts 1 and 2, the jury found the special weapons allegations to be true, but found the great bodily injury allegations to be not true. The prosecutor subsequently dismissed counts 3 and 7, which charged defendant with dissuading a witness. Defendant was sentenced to prison for a total of 11 years.
The only incident relevant to defendant’s appeal is the one occurring on May 11, 2006. Accordingly, we have omitted a summary of the facts of the April 25, 2006 incident, underlying his convictions of count 5 (assault by means of force likely to produce great bodily injury or with a deadly weapon) and count 6 (corporal injury to spouse or cohabitant).
There is no dispute that the evidence was sufficient to support the conclusion that shortly after 5:00 a.m. on May 11, 2006, defendant stabbed Elvia Gill once in the head with a pair of scissors and then fled Gill’s apartment. One of the responding paramedics testified that when he arrived at Gill’s apartment, she had a laceration on the top of her head but there was no active bleeding. Gill was then transported to the hospital emergency room and was treated by a resident physician. The physician cleaned and closed Gill’s wound with four staples. The physician testified that the part of the head where Gill was stabbed was more durable compared to other parts of the head and he thought that it would take quite a bit of force to penetrate the cranium with a pair of scissors.
Gill and defendant had a young son together. The night before the stabbing, Gill’s neighbor, Cecilia Sosa, babysat the child. Sosa testified that Gill dropped the child off around 9:00 p.m. and was supposed to pick him up by 11:00 p.m. But Gill never showed up. Concerned, Sosa called Gill’s apartment around 5:00 a.m. and asked why Gill had not come by to pick up the child. Gill was crying and Sosa had trouble understanding what she was saying. Sosa asked Gill if anybody was with her. Gill replied, “Arturo.” Defendant then got on the telephone and told Sosa nothing was happening. But Sosa could hear arguing in the background and a female screaming. After getting off the telephone, Sosa quickly changed her clothing and, a few minutes later, went upstairs to Gill’s apartment.
Gill answered the door. She was crying and bleeding and seemed upset and frightened. Sosa helped Gill to lie down on the couch and gave her a towel for the bleeding. Gill told Sosa that defendant hit her in the head with some scissors. Gill was on the telephone with a 911 operator when Sosa arrived and she remained on the telephone until police officers arrived. Both Gill and Sosa spoke to the operator and a recording of the call was played to the jury. Gill told the operator that she was bleeding and that defendant stabbed her once in the head with some scissors and then ran away.
Maria Colmenares, who lived across from Gill, testified that she saw defendant around 5:10 or 5:15 a.m. According to Colmenares, defendant was running “like crazy” down the stairs from Gill’s apartment. When defendant reached the end of the stairs, he bumped into a parked car. He looked around like he did not know which way to go. He then ran towards the yard and jumped over a wooden fence. Colmenares next went to Gill’s apartment, where she found a number of paramedics and police officers. Gill, who only spoke Spanish, asked Colmenares to tell the paramedics that defendant stabbed her with scissors.
A police officer who was fluent in Spanish spoke to Gill at her apartment before she was transported to the hospital. Gill was crying and appeared very emotional. Gill told the officer that prior to the stabbing, defendant kicked her twice in the back and grabbed her by the throat with his left hand. Gill also told the officer that when she received a telephone call defendant told her he would kill her if she said anything was wrong. Afterwards, defendant attacked her with scissors. Police officers failed to locate the scissors, which Gill simply described as having a pink handle.
The defense
Defendant’s sister testified that there was bad blood between her family and Maria Colmenares, defendant’s and Gill’s neighbor.
One of the detectives investigating the case was unable to locate Gill for a follow-up interview after the incident on May 11, 2006.
DISCUSSION
I. Substantial Evidence of Attempted Murder
Defendant contends the evidence was insufficient to establish one of the elements of attempted murder – that he acted with the specific intent to kill Gill – and therefore his conviction must be reversed. Defendant places strong reliance on the facts that he stabbed Gill only once and inflicted a relatively minor head wound before he fled the apartment. He also argues that evidence of his threat to kill the victim did not support his conviction, asserting: “It is not uncommon for someone to say ‘I will kill you’ during a heated domestic dispute. That statement coupled with the one single stabbing in this case, followed by a decision to flee without inflicting any further injury does not show an intent to kill.”
In determining the sufficiency of the evidence, we review the entire record to determine whether the evidence was reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Catlin (2001) 26 Cal.4th 81, 139; People v. Bolin (1998) 18 Cal.4th 297, 331.) The trier of fact may reasonably rely on the testimony of a single witness, unless the testimony is physically impossible or patently false. (Evid. Code, § 411; People v. Cudjo (1993) 6 Cal.4th 585, 608-609.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless “‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, 18 Cal.4th at p. 331.)
“An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.” (§ 21a; People v. Swain (1996) 12 Cal.4th 593, 604-605.)
“Penal Code section 187, subdivision (a) provides: ‘Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.’ In order to prove an attempted murder charge, there must be sufficient evidence of the intent to commit the murder plus a direct but ineffectual act toward its commission. [Citation.] Although malice may be express or implied with respect to a charge of murder, implied malice is an insufficient basis upon which to sustain a charge of attempted murder because specific intent is a requisite element of such a charge. [Citation.] Thus, to sustain a charge of attempted murder, the evidence must demonstrate a deliberate intention unlawfully to kill a fellow human being. [Citation.] ” (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690 (Chinchilla.)
Attempted murder thus requires express malice, i.e., an intent to kill. (People v. Carpenter (1997) 15 Cal.4th 312, 391 (Carpenter).)
“There is rarely direct evidence of a defendant’s intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant’s actions. [Citation.] The act of firing toward a victim at a close, but not point blank, range ‘in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill ....’ [Citation.] ‘The fact that the shooter may have fired only once and then abandoned his efforts out of necessity or fear does not compel the conclusion that he lacked the animus to kill in the first instance. Nor does the fact that the victim may have escaped death because of the shooter’s poor marksmanship necessarily establish a less culpable state of mind.’ [Citation.]” (Chinchilla, supra, 52 Cal.App.4th at p. 690, italics added.)
Although intent to kill is an element of attempted murder (Carpenter, supra, 15 Cal.4th at p. 391), whether a person possessed that intent is a question for the trier of fact (People v. Lashley (1991) 1 Cal.App.4th 938, 945-946 & fn. 4), which can be proved by direct or circumstantial evidence (People v. Belton (1980) 105 Cal.App.3d 376, 380-381). Absent direct evidence, the defendant’s intent must be derived from all the circumstances of the attempt, including his actions and words. (People v. Lashley, supra, 1 Cal.App.4th at pp. 945-946.) “While reasonable minds may differ on the resolution of that issue, our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Id. at p. 946.) “Our role is to determine the legal sufficiency of the found facts and not to second guess the reasoning or wisdom of the [jury].” (Ibid.)
When viewed in the light of the preceding test, the jury’s finding that defendant possessed the requisite intent to kill is clearly supported by the evidence. According to the victim’s undisputed police statement, the stabbing was preceded not only by a verbal threat to kill, but also by a physical attack wherein defendant kicked the victim in the back and grabbed her by the throat. Defendant then picked up a deadly weapon (the scissors) and targeted a vital area of the victim’s body (the head). (See, e.g., People v. Alvarado (1991) 232 Cal.App.3d 501, 505-506 [where defendant killed victim with knife stab to the head, which penetrated her skull and brain, court held that “‘“no further proof of malice or of intent to kill [was] required.”’”]; see also People v. Moore (2002) 96 Cal.App.4th 1105, 1114 [sufficient evidence of specific intent to kill attempted murder victim where defendant “stabbed the victim not in the arm or leg, but in the abdomen, an extremely vulnerable area of the body.”].) Under the legal principles set forth above and in light of the circumstances just discussed, the facts that defendant’s strike happened to fall upon a less vulnerable portion of the head than it could have, and that defendant fled after inflicting a single stab wound, do not necessarily establish a less culpable mental state as defendant suggests. Indeed, a reasonable interpretation of defendant’s actions is that defendant hastily stabbed the victim and then fled, not because he lacked the requisite intent to kill, but because he correctly anticipated that Sosa would shortly intervene. Sosa lived in the same apartment complex and knew defendant and Gill. Their young son was still at her apartment six hours after Gill was supposed to come pick him up. Defendant certainly would have been aware of Gill screaming in the background when he got on the telephone and tried to assure Sosa that nothing was happening. These circumstances suggest a motive for fleeing other than defendant’s asserted lack of an intent to kill.
Throughout his briefing, defendant describes the victim’s head wound as superficial. While the resulting injury could have been a lot worse, it bears noting that the wound was evidently serious enough to require emergency medical treatment and surgical staples. In any event, the severity of the injury is not dispositive but just one of the circumstances for the jury to consider in determining whether defendant possessed the specific intent to kill the victim.
Finally, the case relied on by defendant to support his argument is not on point. In People v. Johnson (1981) 30 Cal.3d 444, the victim reached into the defendant’s car after the victim had blocked the defendant’s passage and uttered racial obscenities. The defendant fired two shots at close range at the victim. The jury was not instructed that they must find that the defendant entertained an actual intent to kill. In this context, the court found that the shooting of the victim at close range did not conclusively demonstrate an intent to kill and thus the instructional error was not harmless. (Id. at pp. 447-449.) The court did not hold the evidence was insufficient to support an intent to kill. For all the reasons discussed above, the evidence in this case was sufficient to support an intent to kill and we reject defendant’s arguments to the contrary.
II. Section 654
As noted above, defendant was convicted of attempted murder in count 1 and making a criminal threat in count 4 based on the events of May 11, 2006. The court imposed the middle term of seven years for attempted murder, with a consecutive term of eight months (one-third the midterm) for making a criminal threat. Defendant contends that section 654 precluded consecutive terms, asserting that “[t]he two offenses occurred close in time, were part of a continuous course of conduct, and were committed with the same criminal objective, thus the two counts constituted one criminal action.”
Section 654, subdivision (a), provides in pertinent part, “an act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” Section 654 therefore “‘precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts. “Whether a course of criminal conduct is divisible … depends on the intent and objective of the actor.” [Citations.] “If all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.” [Citation.]’ [Citation.]” (People v. Spirlin (2000) 81 Cal.App.4th 119, 129, last bracketed insertion added; People v. Latimer (1993) 5 Cal.4th 1203, 1207-1208; Neal v. State of California (1960) 55 Cal.2d 11, 19.)
However, if the defendant harbored “multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]” (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268; People v. Solis (2001) 90 Cal.App.4th 1002, 1021; People v. Alvarado (2001) 87 Cal.App.4th 178, 196.)
Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312; People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) Its findings will not be reversed on appeal if there is any substantial evidence to support them. (People v. Hutchins, supra, 90 Cal.App.4th at p. 1312; People v. Herrera, supra, 70 Cal.App.4th at p. 1466; People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.) We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. (People v. Hutchins, supra, 90 Cal.App.4th at pp. 1312-1313; People v. Jones (2002) 103 Cal.App.4th 1139, 1142-1144.)
Here, substantial evidence supports the trial court’s finding that count 4 making a criminal threat was “a separate and distinct offense” from count 1 attempted murder. Although the offenses occurred relatively close in time, there was evidence they were motivated by different intents. The trial court could find that, by threatening to kill the victim if she said anything was wrong on the telephone, defendant evinced an intent to intimidate and to prevent her from reporting his physical abuse or from seeking help. By subsequently stabbing the victim in the head with scissors, defendant evinced a separate intent to kill. Because the trial court reasonably could conclude defendant harbored multiple criminal intents under the circumstances, multiple punishment for these acts is not prohibited by section 654.
DISPOSITION
The judgment is affirmed.
WE CONCUR: CORNELL, Acting P.J., KANE, J.