Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Super.Ct. No. 05NF1390 William Lee Evans, Judge.
Richard L. Fitzer, 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, Lilia E. Garcia and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Defendant was convicted of four counts of attempted murder and one count of residential burglary after entering the victims’ home and brandishing a knife in a bedroom occupied by two sleeping children and their parents. Defendant asserts there is insufficient evidence to support the attempted murder conviction as to the two children. He also asserts that under Penal Code section 654, he should not have been subject to additional penalty for the burglary, and claims a security fee was wrongfully imposed. We find no error and affirm.
Subsequent statutory references are to the Penal Code.
I
FACTS
We view the evidence in the light most favorable to the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The following summary is based on this standard.
In April 2004, defendant took an automobile belonging to Eric and Stacy Wall, causing approximately $12,000 in damage. As a condition of his probation, defendant was ordered to pay restitution, and was informed that probation could be extended until it was paid in full. The Walls did not know defendant, but knew his name and that he attended the same high school as their older children.
Due to their shared surname, throughout this opinion we refer to members of the Wall family by their first names. No disrespect is intended. (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475-476, fn. 1.)
During the early morning hours of April 10, 2005, defendant removed a window screen from the Wall residence, and entered the house. He brought with him a child’s golf club, which he had apparently found outside. Defendant took a large butcher knife with a 10-inch blade from the kitchen. He did not remove any of the electronics or checks that were visible in the kitchen. At some point, he removed his clothes, which were later found in a bathroom.
Defendant went to the master bedroom, where Eric and Stacy were sleeping on the bed. Two of their four children, Zachary, age 13, and Ryan, age 7, were sleeping on the floor of the bedroom. Defendant removed a cordless phone that was behind a computer monitor and disconnected it from the wall.
When Eric woke at approximately 3:15 a.m., defendant was directly over him, staring at him and pointing a knife to his head. Eric grabbed defendant and rolled him over onto the bed. They struggled as Eric yelled for Stacy to turn on the lights. Stacy, meanwhile, had woken up, believing Eric was ill. She urged the children out of the room, but she did not see defendant until she turned on the lights. Defendant was naked, in the middle of the bed on all fours. He held the knife while staring at her, and managed to get the children out of the room. She reached for the phone, but it was missing.
Stacy left the bedroom and ran to her older son’s room. Kyle, who was 15 at the time, grabbed a baseball bat and ran to his parents’ bedroom. Stacy yelled for Kyle to hit defendant with the bat, and at about the same time, he let go of the knife. Kyle and Eric then detained defendant until police arrived. During the struggle with defendant, Eric suffered cuts on his arms, and defendant bit him on the shoulder. While waiting for the police, Eric asked defendant why he had come inside the house. He made statements to the effect that the Antichrist was on Earth and that Jesus had told him to come and pick their house. It was not until after the police arrived that Eric learned that defendant was the same person who had stolen their car.
Defendant later made a number of statements to Detective Austin Phillips of the Brea Police Department. Defendant told Phillips that he was walking in the neighborhood when he recognized the Walls’ car as one he had “jacked at one time.” He checked the vehicle’s doors and found them locked. He noticed that the gate to the backyard was open, and said he wanted to go into the yard or house and see if there was something that he could steal. He admitted entering the house, and told the detective that “a sixth sense” told him that he should get a knife. After taking the knife from the kitchen, defendant said he went down the hallway and entered the master bedroom, and started rummaging through areas where he thought he might find valuables. He said that Eric suddenly awoke and lunged at him, and that Eric must have hurt himself on the knife while he was holding it.
Defendant was charged with four counts of attempted murder with deliberation and premeditation (counts one through four, §§ 187, 664), one count of first degree residential burglary (count five, §§ 459, 460), and one count of assault with a deadly weapon (count six, § 245, subd. (a)(1)). As to counts one through four, it was further alleged that defendant personally used a knife, a dangerous and deadly weapon. The jury convicted defendant on all counts and found the personal use of a knife allegation to be true.
The court sentenced defendant to two consecutive life terms on counts one and two, the attempted murders of Eric and Stacy, adding two one-year enhancements for the deadly weapon finding. The court also imposed concurrent life sentences for counts three and four, a four-year sentence on the burglary count, and stayed the assault count pursuant to section 654. Thus, defendant’s total prison sentence was for two life terms plus six years. On the record, the court imposed a $200 restitution fine, a $200 parole revocation fine and $1000 in victim restitution. The abstract of judgment and sentencing minute order also reflect a $120 security fee.
II
DISCUSSION
Sufficient Evidence of Attempted Murder
Defendant contends that there was insufficient evidence with respect to the attempted murder of the two children, compelling us to reverse the judgment on those counts. In addressing such challenges, “the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — evidence that is reasonable, credible and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] ‘“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. [Citation.]”’ [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)
Defendant’s specific argument is that because he did not know the children were present and could not have seen them because the bedroom was dark, he lacked the requisite intent to kill the children. “Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. [Citations.]” (People v. Lee 31 Cal.4th 613, 623.) The mental state required for attempted murder is express malice. (People v. Smith (2005) 37 Cal.4th 733, 739 (Smith).) “Intent to unlawfully kill and express malice are, in essence, ‘one and the same.’” (Ibid.) “Malice is express when the killer harbors a deliberate intent to unlawfully take away a human life.” (People v. Lasko (2000) 23 Cal.4th 101, 104.) “Express malice requires a showing that the assailant ‘“‘either desire[s] the result [i.e., death] or know[s], to a substantial certainty, that the result will occur.’ [Citation.]”’ [Citations.]” (Smith, supra, 37 Cal.4th at p. 739.) “Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense. [Citations.]” (People v. Pre (2004) 117 Cal.App.4th 413, 420.) For example, “evidence of motive is often probative of intent to kill.” (Smith, supra, 37 Cal.4th at p. 741.)
“One who intentionally attempts to kill another does not often declare his state of mind either before, at, or after the moment he [attacks]. Absent such direct evidence, the intent obviously must be derived from all the circumstances of the attempt
. . . .” (People v. Lashley (1991) 1 Cal.App.4th 938, 945-946.) Our review of the record discloses sufficient, credible evidence from which the jury could reasonably conclude defendant specifically intended to kill everyone in the bedroom, and he attempted to do so in a manner that was premeditated and deliberate. Most significantly, the evidence demonstrated defendant had a motive to kill. The evidence strongly suggests that defendant was angry and wanted revenge on the family. The fact that defendant stripped further suggests that he intended to kill and leave no incriminating evidence behind — an inference that could logically include witnesses. Defendant’s argument that the light was insufficient for him to see the children on the floor is simply not credible. It is based on Stacy’s testimony that she did not see defendant until he was on the bed. Stacy, however, had just been woken from sleep. Defendant had crept through the house, entered the bedroom, and had sufficient light to locate and disconnect the telephone. The argument that he accomplished this without either tripping over the sleeping children or seeing them strains all credulity.
As respondent notes, it is “beyond dispute that the boys, as well as their mother, were in harm’s way.” In People v. Bland (2002) 28 Cal.4th 313 (Bland), the Supreme Court noted that a defendant may be convicted of attempted murder of those he deliberately places in harm’s way, even if he could not see them. (Id. at p. 330.) Although this case is not as compelling as one in which the defendant uses a bomb or automatic weapon, the same principles apply. Like a perpetrator who fires an automatic weapon at a house, seeking a particular target but ultimately uncaring if others are hit in the crossfire, defendant entered a bedroom carrying a large knife with two vulnerable, sleeping children on the floor. He stated, “‘the anti-Christ sent me here to kill you.’” From these circumstances, defendant’s intent to kill everyone in the room can be reasonably inferred by the jury. We therefore find no error.
Section 654Defendant next asserts that his only intent upon entering the Wall home was to kill. Therefore, he argues, pursuant to section 654, he should not have been sentenced to the four-year term for burglary. Section 654 requires that an act or omission that is made punishable in different ways by different provisions of the Penal Code may be punished under either of such provisions, “but in no case shall [it] be punished under more than one . . . .” (§ 654, subd. (a).) Section 654, therefore, bars multiple punishment when a defendant is convicted of two or more offenses that are incident to one objective. (Neal v. State of California (1960) 55 Cal.2d 11; People v. Latimer (1993) 5 Cal.4th 1203 [reaffirming Neal].)
Defendant’s argument ignores, however, the fact that he told the detective that he wanted to enter the home to “see if there was something that he could steal.” Further, upon entering the master bedroom, he looked for valuables.
Defendant argues that during the trial, the prosecutor argued the defendant had lied and that he was there only to commit murder. Obviously, the prosecutor’s argument has no evidentiary import. He further claims that the fact that he did not disturb any belongings or simply steal anything and leave is sufficient evidence that he had no intent to steal. We disagree. His own words to the police are sufficient evidence of his intent to commit burglary, an intent he claimed changed after he entered the house. Therefore, the evidence in the record supports the conclusion that defendant had multiple objectives at different times, and sentencing him for both the burglary and attempted murders was therefore proper.
Security Fee
In what can only be described as a make-work argument, defendant claims the sentencing minute order reflects a $120 security fee that was not orally imposed on the record. Defendant cites People v. Zackery (2006) 147 Cal.App.4th 380. In that case, the appellate court reversed a restitution fine and parole revocation fine that were added to the record without being pronounced by the court in defendant’s presence. (Id. at p. 388.) The court noted that the trial court could decline to impose the restitution fine if it found compelling reasons for not doing so. Thus, “[w]hen a restitution fine is imposed in the absence of the defendant, the defendant has no opportunity to address the propriety of imposing the fine or its amount.” (Id. at pp. 388-389.)
Unlike the fines in Zackery, the statute authorizing the court security fee does not include such a provision — it states that the security fee “shall” be imposed.
(§ 1465.8, subd. (a)(1).) Thus, the reasoning in Zackery is simply inapposite here. Further, even if the trial court had neglected to add the fee altogether, this court would have jurisdiction to correct that omission. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157.) Thus, we find no error.
III
DISPOSITION
The judgment is affirmed.
We concur: BEDSWORTH, ACTING P. J. O’LEARY, J.