Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07HF0244, M. Marc Kelly, Judge.
Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
A jury convicted Ernesto Hernandez Avalos of first degree murder in the death of Woo Sung Park, and found true allegations Avalos used two deadly weapons to commit the crime; a shovel and a pickaxe. The court sentenced Avalos to serve 26 years to life in prison. On appeal, he challenges the sufficiency of the evidence to prove the premeditation and deliberation element of first degree murder, arguing that this court should reduce the crime to second degree murder, voluntary manslaughter, or involuntary manslaughter, pursuant to Penal Code section 1181.
For reasons set forth below, we conclude substantial evidence supports the jury’s finding of premeditation and deliberation. Therefore, the judgment is affirmed.
I
FACTS
On January 29, 2007, Park hired Avalos and Liborio Pantojo to do some landscaping work at Park’s home. Everything seemed fine in the morning. After lunch, however, Avalos stopped working and walked around the site as if looking for something. Pantojo, who had never worked with Avalos before, continued to work. He carried between six and eight wheelbarrows full of dirt from the front of the house to the backyard, but he stopped working when he saw Park lying facedown in the backyard and Avalos holding a shovel like a baseball bat over Park’s head. Pantojo dropped the wheelbarrow and went to a neighbor’s house to get help. As he hurried away, Pantojo heard the sound of something “hitting rocks with a shovel.” Pantojo also testified that Avalos came after him with the shovel, again, as if he were carrying a baseball bat, which prompted Pantojo to wait at the house next door until the police arrived.
Irvine Police Detective John Sanders arrived at the scene approximately seven minutes after receiving a dispatch call. Someone directed him to the backyard of the home where Sanders took up a defensive position behind a concrete wall at the yard’s side gate. From this vantage point, Sanders saw Park’s body lying facedown in the dirt. A few seconds later, Sanders saw Avalos holding a shovel like a baseball bat. Sanders repeatedly yelled at Avalos to drop the shovel. Avalos complied, but he immediately grabbed a pickaxe lying on the ground and held it over Park’s head. Sanders drew his gun and aimed at Avalos, but that did not prevent Avalos from striking Park in the back of the head with the axe. Avalos then dropped the axe and ran behind the house.
When other police officers arrived, Sanders directed them to various locations around the house, and he returned to the side yard. Avalos walked out from behind the house. He had the shovel and was carrying it like a baseball bat while walking toward Sanders. Sanders told Avalos to stop, but Avalos merely turned and walked back behind the house. Sanders testified that Avalos had a “blank stare” and appeared to be “looking through” him. Then, while the officers were considering how to subdue Avalos, he threw a dirt clod at Sanders.
Irvine Police Officer Tom Goodbrand fired two rubber bullets at Avalos. The first shot missed its mark, but the second shot grazed Avalos’s right cheek and knocked him to the ground. Avalos immediately got up, retrieved the shovel, and took a swing Goodbrand. He came within a couple of feet of Goodbrand with the shovel, but the swing knocked Avalos off balance and he fell. Goodbrand also stumbled and fell, which gave Avalos the chance to get up and swing the shovel at Goodbrand a second time. Goodbrand ducked and raised his arm to block the blow, but Avalos lost his balance and missed his mark. Goodbrand and Avalos wrestled for the shovel while Sanders and another officer attempted to place Avalos in handcuffs. The attempt started “a pretty violent struggle.” Sanders used his taser gun, but it took three shots from the gun before Avalos stopped resisting arrest.
Park was dead by the time firefighters and emergency medical personnel could reach him. A pathologist testified he died from the contusions and lacerations to his brain that occurred when his skull fractured due to blunt force trauma. The pathologist also testified that Park did not appear to have any defensive wounds.
Avalos was transported to a local hospital for treatment for his facial injury. While he was at the hospital, investigating officers took a statement from him. With the assistance of a Spanish interpreter, Avalos told them that he had worked for Park two or three times before January 29. However, on January 29, he smoked methamphetamine before going to work, something he admitted doing regularly. Avalos said that after lunch Park told him he smelled bad and worked too slowly. Park’s words upset Avalos. While Park’s back was turned to rake some leaves, Avalos picked up a nearby shovel and hit Park in the back of the head and neck. The blow knocked Park to the ground. Once Park was down, Avalos beat him with the shovel, hitting him at least five times in the back of the head. Avalos admitted hitting Park with the pickaxe, he acknowledged that he heard police officers yelling at him to leave Park alone, and he admitted throwing a rock at Sanders. He denied swinging the shovel at any of the officers. At one point, Avalos told the officers that he “did not think” he wanted to kill Park, but that “once it was done, it was done.” He admitted that he knew what he had done was wrong, but claimed he believed Park wanted to fight and/or kill him.
Avalos’s blood tested positive for methamphetamine and amphetamine over four hours after the attack. An investigator who rode with Avalos to the hospital testified he noticed that Avalos was fidgety, continually licked his lips, stuck out his tongue, and had body tremors. At trial, the defense called Dr. Max Schneider as an expert in the field of addiction and methamphetamine abuse. He explained that methamphetamine is a psychomotor stimulant that can cause agitation, dysphoria, decreased appetite, increased sexual drive, delusions, insomnia, paranoia, and inappropriate behavior. Someone under the influence of methamphetamine will demonstrate hyperactivity, increased heart rate and blood pressure, dry mouth, frequent lip licking, and involuntary muscle movement. He also testified that it generally takes 20 to 30 minutes to see the effects of methamphetamine ingestion, although it can take longer. In Schneider’s expert opinion, Avalos was under the influence of methamphetamine when he repeatedly hit Park with a shovel and then a pickaxe.
The court instructed the jury on how to consider evidence of voluntary intoxication, stating, in part, “You may consider evidence, if any, of the defendant’s voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with the intent to kill or premeditation and deliberation or the defendant acted in the heat of passion or imperfect self-defense.” Without a specific verdict form, it is impossible to know the extent to which the jury relied on evidence of Avalos’s ingestion of methamphetamine to arrive at its verdict. In any event, Avalos does not rely on this evidence to advance his argument and we do not consider it in reaching our determination.
II
DISCUSSION
At trial, defense counsel argued methamphetamine affected Avalos’s ability to form the requisite mental state for first degree murder, and that he killed Park under an honest but unreasonable belief in the need for self-defense. Accordingly, the court gave instructions on second degree murder and voluntary manslaughter. On appeal, Avalos adds that instructions on involuntary manslaughter were appropriate. However, the court did not so instruct the jury, nor did either party request them. We find no fault with the court’s instructions to the jury and solely address Avalos’s challenge to the sufficiency of the evidence.
Appellate counsel raises the issue by making the following statement: “Appellant does note that Mr. Avalos did not admit an intent to kill, and without an intent to kill or implied malice, the crime of involuntary manslaughter would also be a lesser offense on which instruction should be given.” In support of this argument, counsel directs us to compare People v. Cook (2006) 39 Cal.4th 566, 596 to the facts of the present case. We have done so, but find the comparison supportive of the position, more fully explained below, that the evidence supports the inference that Avalos acted with malice, which is the essential difference between murder and manslaughter. (Id. at p. 597.)
When determining the sufficiency of the evidence to support a judgment, we apply the substantial evidence test: “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.... 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. [Citations.]” (People v. Perez (1992) 2 Cal.4th 1117, 1124 (Perez).) “Our task is not to determine... whether the weight of the evidence might favor second degree murder over first degree murder... Our task is to determine whether there was sufficient evidence by which a rational jury could decide” the defendant committed first degree murder. (People v. Nazeri (2010) 187 Cal.App.4th 1101, 1111.) Thus, we determine whether the record contains legally sufficient evidence, “‘i.e., evidence that is credible and of solid value.’” (People v. Jennings (1991) 53 Cal.3d 334, 364.)
First degree murder is defined as any “willful, deliberate, and premeditated” homicide. (Pen. Code, § 189.) “‘Deliberation’ refers to careful weighing of considerations in forming a course of action; ‘premeditation’ means thought over in advance. [Citations.] ‘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.]’ [Citation.]” (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)
The full text of the statute provides, “All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree. [¶] As used in this section, ‘destructive device’ means any destructive device as defined in Section 12301, and ‘explosive’ means any explosive as defined in Section 12000 of the Health and Safety Code. [¶] As used in this section, ‘weapon of mass destruction’ means any item defined in Section 11417. [¶] To prove the killing was ‘deliberate and premeditated, ’ it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act.” (Pen. Code, § 189.)
The parties rely on the tripartite test of People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson). Under Anderson, there are three basic, but not exhaustive, categories of evidence that will sustain a finding of premeditation and deliberation. The Anderson court relied on “the nature of premeditation and deliberation as employed by the Legislature and interpreted by this court, for the kind of evidence which is sufficient to sustain a finding of premeditation and deliberation, ” and analyzed several “representative cases” to develop the following categories of evidence: “(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).” (Anderson, supra, 70 Cal.2d at pp. 26-27.)
All of these factors need not be present to sustain a finding of premeditation and deliberation. (People v. Pride (1992) 3 Cal.4th 195, 247.) Although the Anderson court stated appellate courts generally sustain verdicts based on some evidence of all three categories, strong evidence of planning, or strong evidence of motive in conjunction with planning and method of killing (Anderson, supra, 70 Cal.2d at pp. 26-27), more recent cases have stated that the Anderson factors need not be in any special combination or accorded a particular weight. (People v. Young (2005) 34 Cal.4th 1149, 1183 (Young) [“The Anderson guidelines are ‘descriptive, not normative, ’ and reflect the court’s attempt ‘to do no more than catalog common factors that had occurred in prior cases.’”]; see also People v. Sanchez (1995) 12 Cal.4th 1, 33 (Sanchez), disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; Perez, supra, 2 Cal.4th at p. 1125.) Moreover, premeditation and deliberation may be shown by circumstantial evidence. (People v. Thomas (1992) 2 Cal.4th 489, 514.) Nevertheless, the prosecution bears the burden of establishing beyond a reasonable doubt that any intentional killing is also the result of premeditation and deliberation to convict the defendant of first degree murder. (People v. Holt (1944) 25 Cal.2d 59, 91.)
Respondent primarily relies on the third of the Anderson factors, i.e., “the nature of the killing” and “the manner of the 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....” (Anderson, supra, 70 Cal.2d at p. 27.) Although the words “particular and exacting” and the notion the murder was part of a “preconceived design” are suggestive of careful planning and cold execution, this is a bit of a misnomer.
In Perez, the California Supreme Court upheld a first degree murder conviction where the defendant viciously beat and then repeatedly stabbed a woman after breaking into her home. He apparently engaged in a sneak attack because a broken dog bowl and dog food lay scattered on the kitchen floor, and while he used his own fists to subdue the woman, he grabbed her kitchen knives to inflict the fatal wounds. (Perez, supra, 2 Cal.4th at p. 1126.) The court noted that there was no evidence the defendant intended to do the woman harm before he entered her apartment, but they were acquaintances and she probably would have been able to identify him if left alive. (Ibid.) The court found evidence of planning activity in where the defendant parked his car (not in the victims’ driveway), his surreptitious entry into her home, and in his grabbing knives from the kitchen drawer. The court inferred defendant’s motive to be escape from apprehension. But perhaps most importantly, the court stated, “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.” (Id. at p. 1127.)
In People v. Cartier (1960) 54 Cal.2d 300, a jealous husband and trained butcher took his wife home from one of many bars they visited after he became enraged at her brief interaction with a sailor. Although he appeared to calm down before they left the bar, once they returned home he hit her in the head, procured various knives from the kitchen, and proceeded to kill her by inflicting some 40 knife wounds, some superficial, and then severing her heart and vagina from her body. (Id. at p. 309.) The Anderson court described this as a case of “strong type (3) evidence: the manner of killing must have been the result of calculation” because “the superficial wounds apparently inflicted with blunt instructs supply evidence of ‘planning’ activity intended to dull the victim’s resistance; the weapons used were consistent with deliberate choice by defendant made on the basis of his experience as a butcher; and the fatal wounds were consistent with a sexual-jealously ‘motive’ for killing which the evidence reasonably supported.” (Anderson, supra, 70 Cal.2d at pp. 28-29.)
In this case, Avalos did not immediately react to Parks critical words. Instead, he walked around the job site as if looking for something. A reasonable inference is that he was looking for some type of weapon. Once he had located the shovel, Avalos waited until Park turned his back and began to rake some leaves. While Park was distracted by his work, Avalos retrieved the shovel, snuck up behind Park, and hit him in the back of the head and neck. Once Park was down and unable to fight back, Avalos repeatedly hit him in the head before the police officers could respond to Pantojo’s call for help. Even after police officers arrived, Avalos continued to carry the shovel around before he dropped it in favor of a pickaxe for one last blow to the head. As in Perez, there is some evidence of planning and motive, but even stronger evidence in the manner of the killing.
Avalos argues the number of wounds, the crudity of his method, and absence of any planning activity or motive equate to legally insufficient evidence of premeditation and deliberation. True, there is little evidence of planning activity. The testimony showed at most that Avalos was “looking all over” after his lunchtime interaction with Park. The next thing Pantojo saw was Park lying facedown in the dirt and Avalos standing over him with a shovel in hand. However, a reasonable juror could have inferred from this evidence that Avalos was looking for weapons before he attacked Park. Furthermore, just because Avalos used weapons that happened to be close at hand does not preclude a reasonable inference that he planned to kill Park when the opportunity presented itself. As has been stated, the mind can quickly formulate both the intent to kill and a workable plan to achieve that end.
As for their prior relationship establishing a motive, Avalos said the he had worked for Park prior to January 29, although he did not elaborate, and Pantojo testified that he, Avalos, and Park worked together without incident in the morning. This supports a reasonable inference that Park’s reference to Avalos’s personal hygiene and work habits changed things and anger can be a powerful motive for murder.
As noted in Cartier, “Obviously the evidence in this case admits of various and conflicting inferences both as to some basic facts and as to the ultimate law-defined operative fact. Insofar as the record reflects the evidence for consideration by this reviewing court, it is easy to suggest that the trier of fact could have found that the crime was murder of the second degree. But that is no answer to the question immediately before us. That question is not would the evidence support some other finding, but, rather, is there substantial evidence to sustain the finding which the trial court made.” (Cartier, supra, 54 Cal.2d at p. 306.) In this case, the substantial evidence supports the verdict.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, J., IKOLA, J.