Opinion
D073595
10-15-2018
THE PEOPLE, Plaintiff and Respondent, v. JONATHAN KIM, Defendant and Appellant.
Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Randall D. Einhorn and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SWF1401563) APPEAL from a judgment of the Superior Court of Riverside County, John M. Monterosso, Judge. Affirmed with directions. Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Randall D. Einhorn and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Jonathan Kim of the first degree murder of Wileysha G., with the special circumstance of lying in wait (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(15); count 1), and attempted murder of Samantha F. (§§ 664, 187, subd. (a); count 2). The jury found that Kim personally used a deadly or dangerous weapon while committing each offense (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)) and that he personally inflicted great bodily injury upon Samantha (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)). In separate proceedings, Kim admitted one prior serious felony conviction (§667, subd. (a)), which is a strike prior. The court sentenced Kim to prison for 33 years plus life without the possibility of parole. At sentencing the court stated, "I've seen a lot of things in twenty-five years in this business. There are very few crimes I would characterize as just pure unadulterated evil, and this is one of them."
Undesignated statutory references are to the Penal Code. --------
On appeal Kim contends the jury's lying-in-wait special circumstance finding is not supported by sufficient evidence. We reject that contention. Kim also asserts that the abstracts of judgment should be corrected to accurately reflect the enhancements on the determinate and indeterminate sentences. The Attorney General agrees these corrections should be made. Accordingly, we affirm the judgment and direct the trial court to correct the abstracts of judgment.
FACTUAL BACKGROUND
A. Count 1—Attempted Murder
On May 14, 2014, Samantha F. was living with Kaylin K. in an apartment in Temecula. At around 11 p.m. Samantha fell asleep on the living room couch. At around 12:30 a.m., Kaylin made sure the front door was locked, left the lights on, and went to sleep in her bedroom.
At around 2:50 a.m. (May 15), Samantha awakened, screaming when she felt something sharp and felt blood gushing out of her neck. She saw a man walking out the front door of the apartment.
Hearing Samantha's scream, Kaylin ran out of her bedroom, got a towel to stop the bleeding, and called 911. While talking with the 911 dispatcher, Kaylin checked the front door. It was closed, but unlocked. Then she checked the living room window. The screen had been removed and the window was open.
Police found two knives about four feet from the apartment's front door. One of them was pink and did not belong to Kaylin or Samantha. Another had a black handle, which did not match any knives in the apartment.
Kim lived in the same apartment complex, and police later matched Kim's finger and palm prints to those on the window and screen.
B. Count 2—Murder
In May 2014 Noval P. and her friend, Wileysha G., were working as prostitutes out of Wileysha's Temecula home. Early in the morning of May 15 they posted Internet ads for their services. Kim saw Wileysha's ad and arranged for her to pick him up at his apartment and drive him back to her house.
Wileysha picked up Kim and returned home with him at 8:52 a.m. Noval, who was upstairs when they arrived, went downstairs to the living room as Wileysha and Kim walked past her on their way to the upstairs master bedroom. Noval said, "Hi" to Kim, who replied, "Hi." Noval asked Wileysha, "Are you straight?" Wileysha responded, "Yeah, I'm good. I'm fine. I'm cool."
Noval heard the bedroom door close. About 30 seconds to a minute later, she heard a "large thump" or "wrestling" sounds from the bedroom, as if someone was fighting.
Noval ran upstairs. The bedroom door had no doorknob, but instead a deadbolt which locked from the inside. Noval pushed on the door, but it was locked. She pushed again; this time it opened.
Wileysha came out, fully clothed, looking scared, and holding her neck. When Wileysha moved her hand from her neck to grab the banister, blood "spray[ed] everywhere."
By this time, Kim was in the hallway, facing Noval, and running down the stairs. As he passed Noval, she pushed him down the stairs. Kim fell, got up, and ran out the front door.
Screaming, Noval ran after Kim, who was now running on the street, away from the house. After a short chase, Noval returned to the house to attend to Wileysha, who was on the floor—crying, gagging, and choking on her own blood.
Kim had stabbed Wileysha twice—once on the right side of her neck, completely severing the external jugular vein and carotid artery, and also on the left, cutting through her esophagus. Both stabs were front to back. Noval applied pressure to the wounds with a towel, but the bleeding would not stop. Wileysha was dead by 9:07 a.m.
Meanwhile, a neighbor who heard Noval screaming got in his car and followed Kim. He alerted police, who arrested Kim at a nearby home improvement store.
At Wileysha's home police found blood spatter on the inside of the master bedroom wall and matching splatter on the back side of the door, indicating that Wileysha had been stabbed inside the bedroom while the door was closed. There was also a large amount of blood on the bedroom carpet. Police found a red knife inside the master bedroom. After searching Kim's flight path, police recovered a red knife sheath.
A forensic pathologist found no cuts, nicks, scrapes or anything similar on Wileysha's right forearm and right shoulder. Wileysha had no defensive wounds on her right hand and arm, and only one defensive-type wound to her left index finger and a partially torn fingernail on her left pinky finger. From these findings, the pathologist opined that Wileysha was overcome quickly and had no time to defend herself.
At the time of his arrest, Kim's shirt, shorts, socks, and shoes had blood on them. DNA analysis showed that blood was Wileysha's. DNA analysis also showed that Wileysha's blood was on the red knife's blade.
After obtaining a search warrant for Kim's residence, police found a pink knife sheath that matched the pink knife found at Samantha's apartment. Police also found several other colored knives in Kim's kitchen.
Police determined that the red knife found in Wileysha's bedroom and the pink knife found outside Samantha's door were part of a set of knives sold exclusively at a club store. The set contained one red knife, a pink knife, a blue knife, a green knife, and a yellow knife, along with matching colored sheaths. Police found a set of those knives in Kim's apartment; however, the pink and red knives were missing. The pink knife found outside the front door of Samantha's apartment fit inside the pink sheath found in Kim's apartment.
C. Defense Motion—Lying-in-Wait Special Circumstance
After the People rested, Kim's attorney brought a motion under section 1118.1 to dismiss the lying-in-wait special circumstance. The court denied the motion, stating in part: "The fact that he did not immediately attack [Wileysha] upon getting in the car, nor did he attack her on immediately entering the home, but rather waited until he was behind a locked, closed door in the bedroom is also strong evidence that he intended to conceal his purpose until he was in a place of relative privacy and safety to where he could act with surprise . . . . The fact that the other witness who was in the home stated that the attack occurred almost immediately after that door was closed shows that the defendant simply waited for the opportune moment . . . . [¶] This evidence is extremely powerful in my mind to demonstrate the attempt to make a surprise attack on a person and [that he] did indeed attack [Wileysha] by surprise."
D. Defense Case
Kim's father, David, testified that in elementary school Kim was diagnosed with attention deficit disorder (ADHD). Starting at about age 12, Kim could not control his anger and had mood swings. Kim's behavior problems worsened as he got older, and he was later diagnosed with bipolar disorder.
When Kim was in high school, he was violent towards his father. Kim's parents sent him to boarding school for one year; however, Kim returned home at age 18 and was taking drugs and getting worse. In 2013 Kim was treated at a psychiatric clinic after saying he "heard strange sounds" and "saw strange things."
In 2014 Kim continued having visual and auditory hallucinations and was treated by a psychiatrist who prescribed medication. The psychiatrist recommended that Kim's parents keep constant watch over Kim. Accordingly, David and his wife "stopped all other activities" and lived in the Temecula apartment with Kim.
In March 2014 Kim unsuccessfully attempted suicide. In the days before these May 2014 stabbings, Kim was placed on a 72-hour psychiatric hold because he was complaining of seeing "strange things" and threatening suicide. A few days before he attacked Samantha and killed Wileysha, Kim was released from the hospital, despite having severe mood swings. On the night of the attacks Kim had probably not taken his medication.
Robert Leark, a forensic neurological psychologist, reviewed some of Kim's medical records and met with him to conduct a "mental-status examination." Dr. Leark testified that Kim's violent outbursts were consistent with bipolar disorder, and "[i]t's not uncommon in manic states to reach the level of psychosis . . . ." In response to a hypothetical question, Dr. Leark testified that "[i]ndividuals in manic phases are more prone to act out impulsively."
On cross-examination, Dr. Leark testified that Kim does not have any organic brain disease or brain injury and that he has average intelligence. Dr. Leark conceded that Kim could concentrate, had "some ability to focus," and had the ability to plan. Dr. Leark acknowledged that tests administered to Kim two days after his arrest showed that Kim was "greatly exaggerating" his mental illness.
DISCUSSION
I. SUBSTANTIAL EVIDENCE SUPPORTS THE JURY'S LYING-IN-WAIT FINDING
A. Kim's Contention
Under California law, the special circumstance of murder while lying in wait requires "'an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage.'" (People v. Casares (2016) 62 Cal.4th 808, 827.)
Kim challenges the sufficiency of evidence only as to the third element—whether he killed "from a position of advantage." Kim contends "no substantial evidence showed that [he] had any 'position of advantage'" because "the physical evidence did not show that he attacked [Wileysha] from behind, or in the dark, or while she was sleeping, urinating, or otherwise engaged in activity that made her particularly vulnerable to an attack."
B. The Standard of Review
"A sufficiency of evidence challenge to a special circumstance finding is reviewed under the same test applied to a conviction." (People v. Stevens (2007) 41 Cal.4th 182, 201.) Our role in reviewing a sufficiency of the evidence claim is limited. (People v. Smith (2005) 37 Cal.4th 733, 738.) We examine the entire record in the light most favorable to the judgment and determine whether the evidence is of such solid value that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 294.) "[W]e do not reweigh the evidence, resolve conflicts in the evidence, . . . or reevaluate the credibility of witnesses." (People v. Little (2004) 115 Cal.App.4th 766, 771.) The testimony of a single witness, if believed by the jury, is sufficient to support a conviction, unless that testimony is physically impossible or inherently improbable. (People v. Young (2005) 34 Cal.4th 1149, 1181.)
C. Analysis
The "position of advantage" element of lying in wait refers to the killer's relative advantage over the victim. (See People v. Jantz (2006) 137 Cal.App.4th 1283, 1290-1291.) For example, in People v. Edwards (1991) 54 Cal.3d 787 (Edwards), the defendant drove his truck slowly toward two girls at a camp site, turned his truck around, and then followed them for about a quarter mile as the girls walked to a picnic spot for lunch. As the girls were walking, defendant drove alongside them, stopped, and said, "Girls." (Id. at pp. 804-805.) The defendant immediately fired two shots from a pistol, first at one girl, then at the other. (Id. at p. 805.) The court found sufficient evidence to support the lying-in-wait special circumstance finding. (Id. at pp. 825-826.) The court observed: "Defendant drove alongside the victims where there were no witnesses and where they would be most vulnerable. While they were completely unsuspecting, he called to them so they would look his way and become ideal live targets. After gaining this position of advantage, he shot and killed." (Id. at p. 825.) The court held that "a 'situation where the victim is taken unawares and by surprise,' combined with an intent to kill, necessarily places the intended killer in a position of advantage." (Id. at p. 823.)
A surprise attack on an unsuspecting victim from a position of advantage also occurs when the killer uses pretense to conceal his purpose to kill and has held off his attack until he has a relative advantage over the victim. (See, e.g., People v. Hillhouse (2002) 27 Cal.4th 469, 501.) The "position of advantage" requirement may be satisfied where the defendant attacks the victim in a place with no witnesses, and where the victim would be the most vulnerable, ignorant of the defendant's intention to kill. (Edwards, supra, 54 Cal.3d at p. 825.)
The jury's finding that Kim held a position of advantage is supported by substantial evidence. Kim lured Wileysha to be alone with him in an isolated location—her locked bedroom—by feigning to be a prostitution client. On the way to the bedroom, Wileysha told Noval she was "fine" and everything was "cool." From this, the jury could reasonably conclude that in their brief time together (driving from Kim's apartment to Wileysha's house) Kim's behavior gave Wileysha no reason to fear for her safety. By thus gaining her confidence and by concealing the knife, Kim executed a surprise attack. The absence of any significant defensive wounds indicates that Wileysha did not have time to defend herself and, because Wileysha was alone behind the locked bedroom door, she was unable to summon help. If Wileysha had seen the knife before Kim plunged it in her neck, she undoubtedly would have screamed and put up her hands to fight. She never got the chance. The blood spatter on the inside of the bedroom door showed that Kim overpowered Wileysha soon after the door was closed. (See People v. Webster (1991) 54 Cal.3d 411, 448 [finding sufficient evidence that defendant held a position of advantage by luring the victim to an isolated location on a pretext]; People v. Livingston (2012) 53 Cal.4th 1145, 1173 [killing victim trapped in small room shows defendant attacked from a position of advantage].)
Disagreeing with this analysis, Kim contends there is insufficient evidence of lying in wait because he did not attack Wileysha "from behind, or in the dark, or while she was sleeping, urinating, or otherwise engaged in activity that made her particularly vulnerable to an attack." He contends the forensic evidence shows that Wileysha was facing Kim when he stabbed her, and thus distinguishes Kim's case from numerous other cases where courts have upheld a lying-in-wait finding because the victim was blindsided.
At its core, Kim's argument is that because Wileysha was facing Kim when he stabbed her, the jury was required to find that he did not kill from a position of advantage. Certainly, the jury was entitled to consider the inferences Kim urges on appeal. However, his argument fails because we are required to view the evidence in a light most favorable to the judgment. "'"'"If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment."'"'" (People v. Cravens (2012) 53 Cal.4th 500, 508.) Reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (People v. Olea (1971) 15 Cal.App.3d 508, 513.) No rule prohibits a jury from finding a defendant killed by lying in wait simply because the killer and victim were facing each other. Indeed, in several cases, the California Supreme Court has upheld a finding that a murder was done by lying in wait where the victim and killer were facing each other. For example, in People v. Mendoza (2011) 52 Cal.4th 1056, the defendant shot the victim, a police officer, in the face from a distance of less than three feet. (Id. at p. 1065.) The California Supreme Court affirmed a lying-in-wait finding, stating that although the officer was aware of the defendant's physical presence the evidence showed that the defendant concealed his murderous purpose so well that he took the victim completely by surprise when he fired a single deadly shot at close range. The court held: "From this evidence, a rational jury could infer that defendant did not kill out of rash impulse, but rather in a purposeful manner that required stealth and maneuvering to gain a position of advantage over the unsuspecting officer." (Id. at p. 1074.) Similarly here, Kim concealed his purpose so well, that literally minutes before Kim stabbed her in the neck Wileysha told Noval she was "fine" and "cool." And, as in Mendoza, the absence of any significant defensive wounds shows that Kim took his victim completely by surprise from a position of advantage.
People v. Cage (2015) 62 Cal.4th 256 also involved a face-to-face killing. There, the defendant hid a shotgun in a laundry basket of clothes and went to the victim's house. When the victim opened the front door, the defendant fatally shot her in the face. (Id. at p. 263.) The California Supreme Court held that a jury could rationally conclude that the defendant planned and undertook a deliberate subterfuge aimed at making his presence appear to be innocuous so that the victim would open the door and admit him. (Id. at p. 279.) The ruse disguised his intent to kill. The Court held that the jury could also reasonably determine on these facts that the defendant attacked the unsuspecting victim from a position of advantage. (Id. at p. 280.)
II. THE ABSTRACTS OF JUDGMENT SHOULD BE CORRECTED
Kim and the People agree there are errors in the abstracts of judgment for the indeterminate and determinate sentences that should be corrected to conform to the oral pronouncement of judgment. Appellate courts may order correction of abstracts of judgment that do not accurately reflect the oral statements of sentencing courts. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) "Where there is a discrepancy between the oral pronouncement of judgment and the . . . abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) "[T]he abstract of judgment is not the judgment of conviction and it cannot add to or modify the judgment which it purports to digest or summarize." (People v. Caudillo (1980) 101 Cal.App.3d 122, 126.)
In sentencing Kim, the court imposed the upper term of nine years on count 2 (attempted murder). After doubling that term to 18 years based on the strike conviction, the court imposed three sentencing enhancements to that count: (1) one year consecutively for personally using a deadly or dangerous weapon (§ 12022, subd. (b)(1)); (2) three years consecutively for inflicting great bodily injury (§ 12022.7, subd. (a)), and five years consecutively for a prior serious felony conviction under section 667, subdivision (a). Thus, the total determinate term on count 2 is 27 years.
On count 1 (murder, lying in wait), the court imposed life without the possibility of parole. Additionally, the court imposed a determinate term of one year for using a deadly or dangerous weapon and five years for the prior serious felony conviction, for a total of six years determinate plus life without the possibility of parole, consecutively.
Thus, the total determinate term as to counts 1 and 2 is 33 years, with count 1 to be served consecutively, plus life without the possibility of parole.
The court prepared two separate abstracts of judgment: one for the indeterminate term (count 1) and a separate abstract of judgment for the determinate term (count 2).
However, the abstracts of judgment reflect that all of the sentencing enhancements were added to the determinate sentence and none to the indeterminate sentence. This does not reflect the oral pronouncement of judgment. As indicated above, Kim's determinate sentence for attempted murder was increased by 27 years, and his indeterminate sentence for murder was increased by six years determinate term. Both abstracts of judgment must be corrected.
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the abstracts of judgment as follows: (1) the abstract of judgment for the determinate sentence should be corrected to show only one prior serious felony conviction enhancement under section 667, subdivision (a), and the abstract of judgment for the indeterminate sentence should be corrected to show one prior serious felony conviction enhancement under section 667, subdivision (a); (2) the abstract of judgment for the determinate sentence should delete one of the references to the one-year enhancement under section 12022, subdivision (b)(1), and (3) that enhancement should be reflected on the indeterminate sentence abstract of judgment. The court shall forward a certified copy of this amended abstract to the Department of Corrections and Rehabilitation.
NARES, Acting P. J. WE CONCUR: DATO, J. GUERRERO, J.