Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF016724. Curtis R. Hinman, Judge. (Retired judge of the Riverside Sup. Ct., Banning branch, assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.)
Daniel G. Koryn, 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, Gil Gonzalez and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut, J.
All statutory references are to the Penal Code.
A jury convicted defendant Martin Gonzalez of attempted premeditated murder against his estranged wife and other offenses. The court sentenced defendant to an indeterminate term of life with the possibility of parole. The court also imposed a consecutive eight-month term and a concurrent two-year term.
On appeal, defendant argues there was not sufficient evidence of attempted premeditated murder and the court erred regarding jury instruction. We affirm the judgment.
2. Facts
Defendant and his wife were married and had two children, a boy and a girl. While married, they owned some rental properties and a cleaning company.
Defendant drank heavily and behaved violently and aggressively. The wife filed for divorce in April 2004. After defendant hit her several times, she moved in with her parents and then went to live in Mexico in December 2004. During the divorce proceedings, the wife did not allow defendant his share of the property worth about $207,000. She moved back to Perris in 2005.
On June 6, 2006, defendant left various phone messages, threatening to kill his wife and children. In his messages, he said, “This day you are going to die.... You’re dead. You’re dead. I am following you... you are going to die one of these days you’re dead.” Later in the day, he went to the family’s residence in Perris, equipped with a loaded gun, ammunition, latex gloves, rope, duct tape, some rags, a screwdriver, and a bottle of tequila half full.
When the wife and children came home, the daughter spotted defendant hiding in the backyard and the son saw he was carrying a gun. The daughter called 911 and a deputy sheriff discovered defendant crouching in the bushes and arrested him.
The children testified their parents had a volatile relationship. Once while defendant was driving, he scared them by threatening to drive off a cliff.
Defendant testified on his own behalf. He claimed that his wife took his share of their joint property. He explained that his comment to the children about driving off a cliff was made because he was nervous about how fast he was driving. Defendant did not like that his wife had a boyfriend or that a young man was living at the wife’s house with the children.
On June 6, defendant did not go to work because he had been drinking. Instead, he went to his wife’s house, taking his work bag, the gun, and the tequila. The materials he used on the job included rope, tape, gloves, rags, and screwdrivers. He bought the gun and ammunition on June 3 because he was afraid of the men at his wife’s house.
He began drinking again in the back yard. He called his wife on his cell phone and threatened to kill her. But he had no intention of hurting his family.
Defendant did not remember telling the police he had planned to tie up his wife, threaten her with a gun, and scare her until she agreed to pay him the $250,000 she owed him.
3. Sufficiency of Evidence
Defendant maintains that, as a matter of law, the evidence was insufficient to convict him of attempted murder under sections 664 and 187 because he engaged in preparation only and never intended to kill his wife. Defendant’s reliance on People v. Johnson (1981) 30 Cal.3d 444, 447-449 and People v. Ratliff (1986) 41 Cal.3d 675, 695 is not persuasive because those cases involved instructional error, not sufficiency of evidence.
Defendant also offers a citation to People v. Adami (1973) 36 Cal.App.3d 452, 455, in which the court held there was no attempted murder where defendant solicited an undercover policeman to commit a killing:
“The elements of attempted murder are the intent to murder a human being and a direct but ineffectual act in furtherance of such intent, such act being more than mere preparation. [Citations.] To constitute an attempt preparation alone is not enough but some appreciable fragment of the crime must have been accomplished, i.e., it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter. [Citations.] Accordingly, in order to constitute an attempt it must not only appear that the defendant had a specific intent to commit a crime but also that he did a direct unequivocal act toward that end. [Citations.]”
The Adami analysis, however, was disapproved in People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 10-14, as flawed in four ways, particularly: “First, and most importantly for our purposes, ‘the [Adami ] opinion makes no mention of the slight acts rule, which has long been the rule for attempted crimes in California.’ (Id. at p. 10.)” (People v. Tillotson (2007) 157 Cal.App.4th 517, 536.)
The slight-acts rule was applied in People v. Morales (1992) 5 Cal.App.4th 917, 926, in which the appellate court found sufficient evidence of specific intent of attempted murder by defendant of John, his estranged wife’s boyfriend:
“At approximately 5 p.m., defendant called his home and told Clara he was going to get her boyfriend. A short time later, defendant came home, went to his bedroom and loaded his gun. As he left the house, defendant pointed the gun at Clara, and again announced he was going to get John, then come back for her. Defendant apparently drove directly to Easton and Angus Avenues, parked his car and went to John Falkowski’s house. He was discovered crouched near a garbage pail, three or four feet from the exit of Falkowski’s house.... [¶]... where the design of the accused is clearly shown, slight acts done in furtherance of the crime will constitute an attempt [citation]; it is not necessary that the overt act be the last possible step prior to the commission of the crime.”
Similarly here, defendant also armed himself, made express and unambiguous threats, and was apprehended lurking in the bushes, waiting to execute the crime. Under the slight-acts rule, as reaffirmed in Decker in 2007, the evidence was sufficient for a reasonable trier of fact to conclude that Gonzalez harbored the intent to commit attempted murder of his wife.
The evidence also amply supported the jury’s finding of premeditation and deliberation. (People v. Anderson (1968) 70 Cal.2d 15, 26-27 [evidence of planning, motive, and manner]; People v. Raley (1992) 2 Cal.4th 870, 886.) Defendant’s telephone threats, his possession of a loaded gun and other equipment, and his anger over being cheated fully establish all three Anderson factors.
4. Jury Instruction
During deliberations, the jury submitted the following inquiry to the court:
“(1) Does the jury need to be [unanimous] as to not guilty to the charge attempted murder prior to deciding on the charge of voluntary manslaughter. If the jury is hung on the charge of attempted murder do we move to voluntary manslaughter. (2) If there is unanimous decision as to conditions 1 & 2 8.66 [attempted murder] but not [unanimous] decision with the additional condition of #5 (603) [attempted voluntary manslaughter] & the statement provided in 603 Line 29 to the next page Line 1 &2 then we need assistance in how to proceed. (Re: Heat of passion.)”
CALJIC No. 8.66 identifies two elements to prove attempted murder: “1. A direct but ineffectual act was done by one person towards killing another human being; and 2. [¶] The person committing the act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being.” CALCRIM No. 603 concerns the lesser included offense of attempted voluntary manslaughter committed in the heat of passion. The fifth element provides: “The attempted killing was a rash act done under the influence of intense emotion that obscured the defendant’s reasoning or judgment.” Additionally, “[i]n deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts.”
The court responded by telling the jury to reread CALJIC No. 17.10: “If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the crime charged, you may nevertheless convict him of any lesser crime, if you are convinced beyond a reasonable doubt that the defendant is guilty of the lesser crime.
“The crime of voluntary manslaughter is lesser to that of attempted murder as charged in Counts 1, 2, and 3.
“Thus, you are to determine whether the defendant is guilty or not guilty of the crimes charged in Counts 1, 2, and 3 or of any lesser crime. In doing so, you have discretion to choose the order in which you evaluate each crime and consider the evidence pertaining to it. You may find it productive to consider and reach a tentative conclusion on all charges and lesser crimes before reaching any final verdicts. However, the court cannot accept a guilty verdict on a lesser crime unless you have unanimously found the defendant not guilty of the charged crime.”
Defendant contends the court erred “by giving such a cursory answer to a jury that was manifesting difficulty with arguably how the elements on the greater and lesser offenses could be interrelated.” He repeatedly cites language from People v. Thompkins (1987) 195 Cal.App.3d 244, 250:
“The trial judge’ instructions to the jury have always been recognized to be a fundamentally important stage of the criminal proceeding. [Citation.] Indeed, one can legitimately argue that the primary function of the judge in a jury trial is to explain the applicable legal principles in such a way as to focus and define the factual issues which the jury must resolve. In this role, the trial judge acts much like a teacher or a guide; it is no accident that we refer to the trial court’s obligation to ‘instruct’ the jury on the applicable law. It is not sufficient that the trial judge be an adequate legal lecturer. Jurors are not first year law students with some independent motive for legal study. At best, they are well meaning but temporary visitors in a foreign country attempting to comprehend a foreign language.
“To perform their job properly and fairly, jurors must understand the legal principles they are charged with applying. It is the trial judge’s function to facilitate such an understanding by any available means. The mere recitation of technically correct but arcane legal precepts does precious little to insure that jurors can apply the law to a given set of facts. A jury’s request for reinstruction or clarification should alert the trial judge that the jury has focused on what it believes are the critical issues in the case. The judge must give these inquiries serious consideration. Why has the jury focused on this issue? Does it indicate the jurors by-and-large understand the applicable law or perhaps it suggests a source of confusion? If confusion is indicated, is it simply unfamiliarity with legal terms or is it more basically a misunderstanding of an important legal concept?”
In Thompkins, the appellate court was also critical of the court’s one-word response of “no” to the jury’s question about whether sudden heat of passion can nullify premeditation. The appellate court also admitted “to some difficulty understanding exactly what the jury was asking. If the trial judge shared our confusion, it may be he should have begun by asking the jury to clarify their questions.” (People v. Thompkins, supra, 195 Cal.App.3d at p. 250.)
In the present case, as explained by the People, the jury’s questions were understandable in context. And the trial court sufficiently answered the questions by its reference to CALJIC No. 17.10.
Its first question, the jury asked whether it had to decide about attempted murder before considering attempted voluntary manslaughter. That question is clearly answered by CALJIC No. 17.10: “... you have discretion to choose the order in which you evaluate each crime and consider the evidence pertaining to it.”
The second jury question asks for guidance if the jury had reached a unanimous decision on elements one and two of attempted murder but had not agreed whether defendant acted rashly and with sufficient provocation. Again the jury’s question is answered by CALJIC No. 17.10, stating the jury must unanimously find defendant not guilty of attempted murder in order for the court to accept a verdict of guilty of attempted voluntary manslaughter. The jury also needed to agree unanimously that defendant acted in the heat of passion or not.
If the court had done more than direct the jury to CALJIC No. 17.10, it risked intruding on the jury’s function: “‘When a question shows the jury has focused on a particular issue, or is leaning in a certain direction, the court must not appear to be an advocate, either endorsing or redirecting the jury’s inclination.’ (People v. Moore (1996) 44 Cal.App.4th 1323, 1331.)” (People v. Montero (2007) 155 Cal.App.4th 1170, 1180.) The court’s direction to reread CALJIC No. 17.10 “kept the court out of the jury’s deliberating role, while at the same time provided the jury with the complete information it needed to convict....” (Montero at p. 1180.) The jury reached a verdict less than one hour after the court answered its question. The court did not abuse its discretion when it directed the jury to reread CALJIC No. 17.10.
5. Disposition
We affirm the judgment.
We concur: Hollenhorst, Acting P. J., King, J.