Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA067451, Tomson T. Ong, Judge. Affirmed as amended.
Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
A jury convicted defendant and appellant Frank Michael Hudson (defendant) of two counts of attempted murder (Pen. Code, §§ 664/187, subd. (a) ), two counts of assault with a firearm upon a peace officer (§ 245, subd. (d)(1)), and possession of a firearm by a felon (§ 12021, subd. (a)(1)). The jury found true allegations that the attempted murder offenses were willful, deliberate, and premeditated and that defendant personally used and discharged a firearm in the commission of the attempted murder and assault offenses (§ 12022.53, subds. (b) & (c)). The trial court sentenced defendant to state prison for a term of 57 years, four months to life. As relevant here, the trial court also imposed a single court security fee of $20. (§ 1465.8.)
All statutory citations are to the Penal Code unless otherwise noted.
On appeal, defendant contends that there is insufficient evidence to support the jury’s finding that he committed the attempted murder offenses with deliberation and premeditation. Respondent contends that the trial court should have imposed a $20 court security fee for each of defendant’s five convictions for a total fee of $100. We affirm the judgment of conviction and order the abstract of judgment amended to reflect a total of $100 of court security fees.
BACKGROUND
Shortly after 11:00 p.m., on September 25, 2005, defendant contacted Long Beach Police Department Officer Jeffrey Litzinger just outside of the Long Beach Airport’s main terminal doors. Defendant was wearing a big black jacket and gray pants and was carrying a bag. Defendant asked Officer Litzinger “what time the rental cars closed” and where he could get a car.
About 11:30 p.m., “Alma,” an airport parking lot attendant for Ampco Systems Parking contacted the airport security operations dispatcher about a suspicious looking man. Officer Litzinger, who was present in the dispatcher’s office, recognized Alma’s description of the man as being that of defendant. Officer Litzinger and Officer William Neal responded to Ampco System’s parking lot. The officers were in full uniform. When the officers arrived, Officer Litzinger saw that defendant was about to enter the parking lot of a nearby gas station. As Officer Litzinger pulled into the driveway, defendant was walking in an area that was used as supplemental storage for rental cars. Defendant then walked over to a picnic table and bench and stopped. Defendant placed a black canvas bag on the table.
Officers Neal and Litzinger got out of their car. Defendant, still at the picnic table, was about four to six feet from the front of the officers’ car. Defendant stood facing the picnic table, but as the officers approached, he turned his head and looked back over his shoulder toward the officers. Defendant did not turn his body.
Officer Neal testified that he tried to “feel out” defendant, and said something along the lines of, “Hey, how’s it going, what[’s] going on.” Apparently in response, defendant said, “Why are you doing this? Why are you always harassing me? I already talked to you. I was [the] one who wanted the information.”
According to Officer Litzinger, defendant uttered these words when the officers first approached him and not in response to Officer Neal’s inquiry.
Officer Neal told defendant that the officers had received a call and that because defendant was wearing large clothing he wanted to search defendant for everyone’s safety. Defendant was wearing a large baggy jacket that covered his waistband and did not allow the officers to see if he had a weapon. Officer Neal asked defendant to place his hands behind his head and interlace his fingers and spread his legs. Defendant refused. Officer Neal repeated his request and defendant again refused, saying that every time he put his hands on his head “they” handcuff him.
Defendant was holding two objects in his hands that appeared to be a cell phone and a PDA (personal digital assistant). After Officer Neal told defendant to put down the objects two or three times, defendant complied. Defendant then reached into the bag that was in front of him. Officer Neal told defendant to take his hand out of the bag. Defendant complied and then put his hands “out on his side.”
At some point, defendant placed his hand in his pocket and Officer Litzinger told defendant to remove it. Defendant complied. Officer Neal was still trying to get defendant to put his hands behind his head so Officer Neal could search him. Defendant began to raise his hands, and then brought them back down. Defendant took a deep breath and, leaning forward, used his left hand to pull up his shirt and jacket. Defendant reached for his waistband area with his right hand. Officer Neal was “fairly certain” that defendant was reaching for a weapon, but did not see one. Officer Litzinger saw defendant retrieve a gun from his waistband. Officer Litzinger yelled, “Gun.” Defendant began to rise up and lean toward Officer Litzinger.
Officer Litzinger drew his gun as defendant was bringing up his gun and pointing it in Officer Litzinger’s direction. Defendant fired one shot and Officer Litzinger returned fire, firing about four shots. Officer Litzinger initially testified that he could not determine whether defendant had shot at him or Officer Neal. Officer Litzinger later testified that he believed that defendant had intended to shoot and kill Officer Neal. Officer Neal testified that defendant fired the first shot at Officer Litzinger. Defendant spun and fired two shots at Officer Neal who returned fire, firing one or two shots at defendant.
Officer Litzinger took cover behind the corner of the gas station. Officer Neal moved into an area that had no cover. Defendant pointed his gun at Officer Neal as Officer Neal ran, and defendant tracked the officer with the gun. Then, as Officer Neal began to run towards Officer Litzinger, Officer Neal yelled, “I’m empty.” Officer Litzinger fired two more shots at defendant. Defendant lost his footing and fell. Defendant first was seated on the ground with his gun pointed at Officer Neal and then lay on the ground with his gun on his chest. Both officers reloaded their weapons.
From different cover positions, Officers Litzinger and Neal peeked out at defendant to determine where he was and what he was doing. Defendant sat up, pointed his gun at the officers, and fired two more rounds. It appeared to Officer Litzinger that defendant was firing at him. Officer Litzinger thought that defendant was trying to shoot and kill him. Officer Litzinger fired three shots. Officer Neal testified that he looked out at defendant and defendant sat up and fired a shot at him. Officer Neal took cover and fired one or two more shots. Defendant said, “I give up.” Defendant threw his gun to his side, rolled onto to his stomach, crossed his legs, and placed both arms straight out to his side. The officers placed defendant in handcuffs and searched him. Shortly thereafter, paramedics arrived.
Defendant, who had complained he was in pain, was put into a paramedic ambulance. While in the ambulance, defendant stated that he could not believe that “he was that close that they couldn’t get a head shot.” Defendant had multiple gunshot wounds and said that if something happened to him to not resuscitate him. A paramedic said to defendant that defendant knew what he had to do to “keep this from happening.” According to the paramedic, defendant responded that he did not want it to stop and then “brought up the head shot again.” A police officer riding in the ambulance testified that defendant said words to the effect of “I wanted it to happen and I wouldn’t have drawn if I didn’t want it to happen.”
A criminalist with the Long Beach Police Department crime lab testified that the firearm defendant apparently used was a Smith and Wesson revolver that was chambered for .44 caliber Remington Magnum cartridge cases. One of the cartridges in defendant’s gun had not been fired. The criminalist testified that the cartridge held a “Winchester silver-tip jacketed hollow-point bullet.” Such a bullet is designed to open up when it strikes tissue or liquid causing the bullet to increase in diameter and create a larger wound path. A photograph taken the night of the shooting appears to show a “through and through” bullet hole on Officer Neal’s pants leg. There also was a bullet hole on the “bottom portions of the grille” of the officers’ police car.
Although the weapon was marked for identification, it appears that it was never identified in the prosecution’s case. Testifying in his own behalf, defendant admitted that he was armed with a .44 caliber handgun.
A police officer testified that the bag that defendant had placed on the picnic table contained a black knit cap with holes “punched” in it – apparently eye holes, black knit gloves, and 19 extra rounds of .44 caliber ammunition. Also in the bag or on the table next to the bag was a complete change of clothes – except for underwear and socks – consisting of a pair of khaki pants, a plaid shirt, and a black tie. The police recovered a small metal spoon and a vial containing .02 grams of methamphetamine from defendant’s shirt pocket and a holster that defendant had been carrying.
Testifying in his own behalf, defendant stated that he went to the airport on the night of September 25, 2005, to steal a rental car from one of the agencies. Defendant admitted that he had ingested a small amount of methamphetamine, but testified that the drug had not impaired his cognitive ability.
Defendant admitted that he was carrying a .44 caliber firearm in a holster tucked in his waistband on his right hip. Defendant testified that he knew it was illegal to carry a firearm, but that he had carried one “most evenings for most of his life” for personal protection and because he believed in his right to bear arms. Defendant testified that he went to firing ranges frequently, and that he considered himself to be a “great shot.” Defendant could hit a target at a distance of 25 yards quite easily. If defendant tried to shoot a person from a distance of about six feet, there was “no way” he would miss whether the person was stationary or moving.
Defendant testified that the extra ammunition just happened to be in his bag.
Defendant testified that he carried a bag that night that held a “beanie” that he intended to use to cover his face when he stole a rental car and gloves that he would use to avoid leaving fingerprints. Ultimately, defendant abandoned his plan to steal a car because there were too many people present. Defendant tried to call someone to pick him up, then headed to a nearby gas station to hire a taxi cab he saw pull into the station.
Defendant testified that as he stood at a picnic table, he saw a police vehicle enter the parking lot and officers exit the vehicle. Defendant did not attempt to shoot the officers and had no intention of shooting them. Defendant had encountered one of the officers about 10 to 15 minutes earlier. Defendant was armed during that encounter and could have shot the officer then, if he had wanted to, but he was not there that night to shoot police officers.
Defendant testified that when Officer Neal approached him, he did not draw his gun and shoot the officer, he had no intention of shooting the officer or anyone else. Defendant had no reason to pay close attention to the officers, he had done nothing wrong. Officer Neal asked defendant how he was doing. Defendant responded that he was all right and inquired about Officer Neal. Defendant did not turn and face Officer Neal when he spoke with the officer; he spoke over his shoulder. Officer Neal then asked defendant what he was doing there. Defendant responded that he planned on hiring the taxi cab.
Defendant testified that even though he told Officer Neal that he was not on probation or parole and had told Officer Neal that he had identification, Officer Neal told defendant that he wanted to pat down defendant. Defendant asked why. Officer Neal said because he wanted to. Defendant told Officer Neal that he did not want to be patted down. Defendant did not turn to face Officer Neal because he had a loaded firearm on his hip, his jacket was open, he knew it was illegal to carry the firearm, and he was afraid that if he turned around the gun would be exposed to the officer. Defendant believed that if he turned around and the officers saw the gun, he would be arrested for possession of a concealed weapon.
Officer Neal asked to search defendant a few times. Defendant refused because he did not want Officer Neal to discover the loaded firearm. Defendant had tried to convince the officers to leave – he had offered them his identification, and they did not believe that he was not on probation or parole. Instead, the officers wanted to search defendant so defendant lifted his jacket with the intention of placing his gun on the table. Defendant admitted that he was “pretty hostile” by that time and had intended to say, “Here, you go, is this what you want.” Defendant was not able to execute his intentions as Officer Litzinger yelled, “Gun,” and defendant was shot multiple times in the back from behind and fell to the ground. Defendant never told the officers that he had a gun or that he was going to put the gun on the table.
Defendant testified that while he stood by the picnic table, he never turned and fired a shot at Officer Neal or at Officer Litzinger and denied ever shooting at the officers while he was near the picnic table. Defendant remembered firing shots as he lay on the ground, but could not remember how many. Asked why he fired the shots, defendant responded, “I just kept being shoot. [sic] I don’t really know. Trying to get them to stop. I don’t know.” Defendant testified that he fired in the officers’ general direction, but he did not rise up. Asked if he was shooting at the officers, defendant responded, “I would assume so. I mean I can’t say I remember for sure.” Later, defendant testified that he was not shooting at anyone specifically. Defendant knew that a single shot from a .44 caliber firearm could kill a person.
DISCUSSION
I. Sufficient Evidence Supports The Jury’s Finding That Defendant’s Attempted Murder Offenses Were Deliberate And Premeditated
Defendant contends that insufficient evidence supports the jury’s finding that the attempted murders of Officers Litzinger and Neal were deliberate and premeditated. We disagree.
A. Standard of Review
“‘In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”’ ([People v.] Rowland [(1992)] 4 Cal.4th [238,] 269, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 99 S.Ct. 2781].) We apply an identical standard under the California Constitution. (Ibid.) ‘In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court “must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ (People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738].)” (People v. Young (2005) 34 Cal.4th 1149, 1175.)
B. Application of Relevant Legal Principles
Section 664, subdivision (a) provides in pertinent part,
“If the crime attempted is punishable by imprisonment in the state prison, the person guilty of the attempt shall be punished by imprisonment in the state prison for one-half the term of imprisonment prescribed upon a conviction of the offense attempted. However, if the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole. . . . The additional term provided in this section for attempted willful, deliberate, and premeditated murder shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact.”
“‘[P]remeditated’ means ‘considered beforehand,’ and ‘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.’ (CALJIC No. 8.20 (5th ed. 1988), quoted with approval in People v. Perez (1992) 2 Cal.4th 1117, 1123 [9 Cal.Rptr.2d 577, 831 P.2d 1159].)” (People v. Mayfield (1997) 14 Cal.4th 668, 767.) However, “[t]he 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. . . .’ (People v. Thomas (1945) 25 Cal.2d 880, 900 [156 P.2d 7]; accord, People v. Perez, supra, 2 Cal.4th at p. 1127.)” (Ibid.; People v. Stitely (2005) 35 Cal.4th 514, 543 [“An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse. [Citations.] However, the requisite reflection need not span a specific or extended period of time”].)
In People v. Anderson (1968) 70 Cal.2d 15 (Anderson), the California Supreme Court established a tripartite test for deciding whether there is sufficient evidence to support a finding of premeditation and deliberation. (People v. Sanchez (1995) 12 Cal.4th 1, 32.) The three factors in the Anderson test are: “(1) planning activity; (2) motive (established by a prior relationship and/or conduct with the victim); and (3) manner of killing. [Citations.] ‘[T]his 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).’ (Anderson, supra, 70 Cal.2d at p. 27.)” (People v. Sanchez, supra, 12 Cal.4th at p. 32.)
For purposes of determining whether there is sufficient evidence of premeditation and deliberation, California courts do not distinguish between murder and attempted murder. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1462, fn. 8.)
In People v. Sanchez, supra, 12 Cal.4th 1, the Supreme Court stated that “the Anderson factors do not establish normative rules, but instead provide guidelines for our analysis. In People v. Thomas (1992) 2 Cal.4th 489, 517 [7 Cal.Rptr.2d 199, 828 P.2d 101] we observed: ‘The Anderson analysis was intended as a framework to assist reviewing courts in assessing whether the evidence supports an inference that the killing resulted from preexisting reflection and weighing of considerations. It did not refashion the elements of first degree murder or alter the substantive law in any way.’” (Id. at p. 32.)
“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. . . . 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.” (People v. Perez, supra, 2 Cal.4th at p. 1125.) Nevertheless, although the Anderson factors do not have to be present in any “special combination” or accorded a “particular weight” (People v. Sanchez, supra, 12 Cal.4th at p. 33), the factors do guide our determination of whether the murder occurred as a “result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse. [Citation.]” (People v. Perez, supra, 2 Cal.4th at p. 1125; People v. Hovarter (2008) 44 Cal.4th 983, 1019).
The record contains sufficient evidence from which a reasonable juror could find that the attempted murders of Officers Litzinger and Neal were the product of thought and reflection—premeditation and deliberation—rather than unconsidered or rash impulse. The evidence demonstrates that defendant had a motive to kill the officers. Defendant testified that he went to the airport parking lot intending to steal a rental car. Defendant, a convicted felon, knew he was illegally armed with a firearm. Defendant possessed items indicating he was going to commit a crime and ammunition. Officer Neal repeatedly requested to pat down defendant. At some point, it became clear to defendant that Officer Neal was going to search him. Defendant testified that he believed if the officers discovered the firearm he would be arrested for possession of a concealed weapon. Thus, the evidence shows that defendant had a motive to kill the officers to avoid arrest and a conviction.
The parties stipulated that defendant was convicted of felony marijuana smuggling in United States District Court in 1999.
The manner in which defendant fired his gun at the officers further supports the jury’s finding of deliberation and premeditation. When Officer Neal requested defendant to put his hands behind his head so that the officer could search defendant and, thereafter, repeatedly requested to search defendant, defendant tried to talk his way out of being searched. Defendant testified that he tried to convince the officers to leave so that they and he could go their separate ways. When it became apparent that Officer Neal was going to search defendant, defendant began to raise his hands as if he was going to comply with Officer Neal’s prior request. Defendant then brought his hands down, took a deep breath, pulled up his shirt and jacket with his left hand, and drew his firearm with his right hand. Defendant then turned on Officers Litzinger and Neal and opened fire. A reasonable juror could infer from defendant’s apparent feigned compliance with Officer Neal’s request to put his hands behind his head that defendant sought to engender a false sense of security in the officers so that he could gain an advantage in an ensuing attack.
Accordingly, the motive for and manner in which defendant attempted to murder Officers Litzinger and Neal provided the jury with sufficient evidence to find that the attempted murders were committed with deliberation and premeditation. (Anderson, supra, 70 Cal.2d at p. 27; People v. Hovarter, supra, 44 Cal.4th at p. 1019; People v. Perez, supra, 2 Cal.4th at p. 1125.)
II. Defendant’s Court Security Fees
Respondent contends that the trial court erred in imposing a single court security fee of $20 pursuant to section 1465.8, subdivision (a)(1) rather than a $20 fee for each of defendant’s five convictions for total fees of $100. Defendant did not address respondent’s contention in his reply brief. We agree with respondent. (§ 1465.8, subd. (a)(1); People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) Accordingly, the abstract of judgment is ordered amended to reflect a total of $100 in court security fees pursuant to section 1465.8, subdivision (a)(1).
Section 1465.8, subdivision (a)(1) provides, “To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code.”
DISPOSITION
The judgment is affirmed. The abstract of judgment is ordered amended to reflect a total of $100 in court security fees pursuant to section 1465.8, subdivision (a)(1).
We concur: TURNER, P. J., ARMSTRONG, J.