Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF022703 F. Paul Dickerson III, Judge.
Nancy Olsen, 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 Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster, J.
Defendant and appellant George Mickael Acuna (hereafter defendant) appeals his conviction for first degree murder. He contends that the evidence supported a verdict of either second degree murder or voluntary manslaughter. However, because substantial evidence supports the jury’s verdict, we affirm the conviction.
PROCEDURAL HISTORY
Defendant was charged with one count of first degree murder and personal use of a deadly weapon, a bayonet. (Pen. Code, §§ 187, subd. (a), 12022, subd. (b)(1), 1192.7, subd. (c)(23).) A jury returned a verdict of guilty with a true finding on the weapon-use allegation. The court denied defendant’s motion to reduce the offense to voluntary manslaughter and sentenced him to 25 years to life in state prison for first degree murder, with a consecutive term of one year for the weapon-use enhancement. Defendant filed a timely notice of appeal.
FACTS
On the evening of June 15, 2007, defendant stabbed and killed Shane MacLachlan. Defendant and his friend, Israel de la Cruz, had driven to Lake Elsinore to speak to de la Cruz’s father, Manuel. Israel and Manuel de la Cruz were somewhat estranged at the time because of Manuel’s relapse into drug use. Manuel was homeless. He had previously lived in defendant’s home, and defendant considered him a good friend and a part of his family. Israel wanted Manuel to spend Father’s Day, which was the next day, at his home in Corona with Israel and his family.
They found Manuel outside the Suds R Us Laundromat with Israel’s cousin Albert Calderon. As they were speaking to Manuel, Shane MacLachlan and Luis Chavez approached them. MacLachlan and his companions—Chavez, MacLachlan’s girlfriend Savannah Buchanan and another friend, Kimberly Beckham—had noticed Manuel and the other man sitting on a wall outside the laundromat when they had walked by on their way to a Kentucky Fried Chicken/Taco Bell restaurant across the parking lot from the laundromat. When the group came out of the restaurant, they saw defendant and de la Cruz engaged in what appeared to them to be a loud argument or a confrontation with two homeless men. Both defendant and de la Cruz, who testified for the prosecution, said they were talking calmly, trying to encourage Manuel to go home with them, and that no one was speaking loudly. However, de la Cruz told an investigator shortly after the incident that someone who walked in on the conversation could “probably” have perceived it as “something going on, something wrong.”
According to both defendant and de la Cruz, MacLachlan and Chavez approached them in an aggressive manner. “They” said “What’s going on here?” as though they thought something was wrong. Based on their demeanor, de la Cruz thought they were looking for a fight. Chavez turned his cap around and said he was “old school, ” and “from L.A., ” apparently intending to imply that he was or had been in a gang. He also had a “213” tattoo, which has gang implications. MacLachlan or Chavez or both said words to the effect of “You mother-fucker” and “This is going to happen, ” or “You’re going to get it.” Defendant and de la Cruz attempted to tell MacLachlan and Chavez that nothing was wrong, that it was just a family conversation. Nevertheless, a fight ensued. There was no evidence that either MacLachlan or Chavez was armed and the fight, according to de la Cruz, was “just a fight, ” i.e., fists only.
Savannah Buchanan testified that she saw MacLachlan and Chavez backing away from defendant and de la Cruz, and that she knew then that there was going to be a fight. Kimberly Beckham did not see how the fight started.
Defendant testified that after MacLachlan struck him in the face, he was “really pissed off.” He went to his truck, which was parked nearby, to retrieve a knife which he had left in the truck after a camping trip. At that point, he looked back and saw that Israel was on the ground being kicked. He was very upset and angry. He grabbed the knife and walked back toward the fight. MacLachlan walked up to him and, according to defendant, “took a swing at [him] and a kick.” When MacLachlan threw a punch at him, defendant was very “pissed off.” He “stuck” MacLachlan with the knife, stabbing him in the lower back. MacLachlan later died from his injury.
The Attorney General cites the stipulated testimony of defendant’s children that they had previously seen the knife in defendant’s truck as evidence that defendant always kept the knife handy “for just such a purpose.” We disagree with this characterization of the evidence. The children were eight, nine and eleven years old. None of the children recognized the bayonet; they recognized the scabbard. The oldest child said he had last seen the scabbard two years earlier, next to a tool box in the garage. The two younger children said they had previously seen the scabbard in the truck. One said she had seen it sometime in the last year; the other said he had seen it approximately three weeks earlier. (On the date of the interview, the bayonet had been in the custody of the police for over two months.) There is nothing in the children’s recollections that supports the inference that defendant kept the bayonet handy just in case he had to stab someone who “pissed [him] off.”
Kimberly Beckham saw defendant involved in the melee. Then she saw him run to the truck. She did not see what he did because her attention was on the fight. She then saw him running back toward the fight, in which MacLachlan was still engaged. She thought she saw a knife in defendant’s hand. He ran up to MacLachlan. It looked almost like they were hugging. Then MacLachlan stepped back and said, “I got stuck.” He had a knife hanging out of his back.
None of the other witnesses saw the stabbing. Savannah Buchanan was waiting in the car and was not watching the fight. Suzanna Fluornoy, who was leaving another restaurant which shared the parking lot with the laundromat, testified that she saw defendant take the knife from his truck, take the sheath off, and walk away from the truck holding the knife in his hand. She did not see the stabbing. She could see from defendant’s manner and body language as he approached the truck that he was very angry. The others had ceased fighting as defendant walked back to the truck. She heard him say, “You better run or you’re going to get shot.” As defendant walked back toward the fight, Fluornoy’s companion urged her to get into the car and she did not see what happened.
Angel de la Cruz, who is not related to Israel de la Cruz, was working at the Kentucky Fried Chicken restaurant that night. He testified that as he was watching the fight, he first noticed defendant standing by the truck. He did not recall seeing a knife in defendant’s hand, but he did recall yelling, “He has a knife.” He testified that he did not remember anything further. He told police shortly after the incident that he saw defendant and MacLachlan running toward each other, but he didn’t see what happened next because his attention was on the man who was on the ground.
Defendant and de la Cruz left in defendant’s truck. As they drove off, Savannah and Kimberly heard defendant yell, “You don’t fuck with family” or “It was a family issue.”
Although most of the witnesses referred to the weapon as a knife, the police officer who found it at the scene described it as a military bayonet, “very sharp, double-edged [and with] some jagged edges on it.” Further, he said, “When it goes in, it doesn’t come out clean. When it goes in, it pulls internals [sic] out.”
MacLachlan and Chavez were both on parole at the time of the homicide. MacLachlan’s offense is not discussed in the record. Chavez had served sentences for discharging a firearm within city limits, possession of a controlled substance, and being an ex-felon in possession of a firearm. He had an additional conviction for possession of a controlled substance and one for possession of ammunition. At the time of the trial, Chavez was in prison for failure to report to his parole officer, a parole violation. He refused to speak with law enforcement about the stabbing because he was “old school” and was concerned about his safety in prison. He also refused to testify in any detail concerning the stabbing.
Neither defendant nor Israel de la Cruz had a criminal record. Defendant had worked for the same employer for about 15 years and had risen to a management position. He lived in Corona with his wife and their four children. Israel de la Cruz lived around the corner from him. Two character witnesses opined that defendant is not a violent person.
LEGAL ANALYSIS
The verdict is supported by substantial evidence.
Defendant contends that his first degree murder conviction must be reversed or reduced to voluntary manslaughter or second degree murder because there is insufficient evidence of premeditation, deliberation and intent to kill and sufficient evidence that the killing took place during a sudden quarrel and in the heat of passion. In effect, he asks us to view the evidence in the light most favorable to him and to hold that the jury should have found him guilty of a lesser offense. This argument inverts the substantial evidence rule.
When a criminal defendant challenges the sufficiency of the evidence supporting his conviction, the appellate court is required to affirm the conviction if, “‘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. Johnson (1980) 26 Cal.3d 557, 576.) If there is substantial evidence which supports the verdict, the reviewing court is not empowered to reverse or modify the conviction merely because the trier of fact could have reached a different conclusion. (People v. Holt (1997) 15 Cal.4th 619, 668.) “Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 403.) It is the jury, not the appellate court, which must be convinced of the defendant’s guilt beyond a reasonable doubt. (People v. Holt, supra, at p. 668.) The same standard applies if the verdict is supported by circumstantial evidence. (Ibid.)
First degree murder is an unlawful killing with express malice aforethought, i.e., the intent to kill, and with premeditation and deliberation. (See People v. Chun (2009) 45 Cal.4th 1172, 1181.) “Deliberation” refers to careful weighing of considerations in forming a course of action; “premeditation” means merely that the defendant thought about committing the crime before carrying it out. (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) The process of premeditation and deliberation does not require any extended period of time. (Ibid.) In contrast, a rash, impulsive killing with malice but without the elements of premeditation and deliberation is second degree murder (People v. Chun, supra, at p. 1181), while a killing committed under circumstances which negate malice—either when the defendant acts in a “sudden quarrel or heat of passion” or when the defendant kills in the honest but unreasonable belief in the need for self-defense—may be deemed voluntary manslaughter (People v. Lasko (2000) 23 Cal.4th 101, 108-110).
Here, the evidence supports the inference that defendant acted deliberately, with premeditation and with the intent to kill. He testified that after MacLachlan hit him, he was “really pissed off” and went to his truck to retrieve his knife. He implied that he didn’t think of getting the knife until he saw that Israel was on the ground being kicked—which also “pissed [him] off”—and claimed that he took the knife for protection and hoped not to have to use it. On cross-examination, however, he admitted that he went to the truck with the intention of retrieving the knife because he was angry. When he saw MacLachlan walking toward him, he removed the knife from its sheath. Rather than brandishing the knife as a warning to MacLachlan, he walked toward MacLachlan as MacLachlan approached him, apparently not displaying the knife. When MacLachlan threw a punch at him, he “got pissed off” and “stuck” MacLachlan with the knife. He did not claim that MacLachlan was armed or that he thought he was.
Defendant emphasized throughout his testimony that he was “pissed off” by what he viewed as the unprovoked assault on him and on Israel. Presumably, he sought to convey to the jury that the decision to stab MacLachlan arose out of the heat of passion engendered by the assault. However, although jurors can view an act done in anger as rash and impulsive, thus negating premeditation and deliberation (see People v. Chun, supra, 45 Cal.4th at p. 1181) and possibly negating malice as well (see People v. Lasko, supra, 23 Cal.4th at p. 108), anger can also be viewed as a motive to commit murder. (See People v. Lunafelix (1985) 168 Cal.App.3d 97, 102.) And, an act committed out of anger can be deliberate and premeditated, as long as the evidence supports the conclusion that the defendant weighed the considerations and decided in advance to kill. (People v. Koontz, supra, 27 Cal.4th at p. 1080.)
Here, the evidence supports the conclusion that defendant, angered by the assault, went to his truck to retrieve the knife and that either as he retrieved it or as he walked or ran back toward MacLachlan, he reached a decision to stab and kill MacLachlan. The time it took him to walk from the truck to where he encountered MacLachlan was sufficient. “‘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, supra, 27 Cal.4th at p. 1080.) It is irrelevant that, as defendant argues, rational jurors could have come to a different conclusion. (People v. Holt, supra, 15 Cal.4th at p. 668.) The evidence also supports the conclusion that defendant intended to kill MacLachlan because by its nature, the weapon he used was extremely likely to cause serious injury or death. Accordingly, even though a different trier of fact might have reached a different conclusion, we must affirm the judgment. (People v. Holt, supra, at p. 668.)
Because the verdict is supported by substantial evidence, we also reject defendant’s contention that the trial court should have granted his motion to reduce the conviction to a lesser offense. (People v. Sheran (1957) 49 Cal.2d 101, 108.) We note that the trial court, too, found that there was “ample evidence” to support the verdict.
DISPOSITION
The judgment is affirmed.
We concur: Hollenhorst, Acting P.J., King, J.