Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. PA 062388, Daniel B. Feldstern, Judge.
Mark David Greenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Baine P. Kerr, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Appellant Antelmo Cruz Perez was charged with one count of murder in violation of Penal Code section 187, subdivision (a) and with personal use of a knife within the meaning of section 12022, subdivision (b)(1). At trial, the jury found appellant guilty of first degree murder and personal use of a deadly and dangerous weapon. The court sentenced appellant to 26 years to life imprisonment. Appellant contends that the evidence was insufficient to support a verdict of first degree murder. He also contends that the trial court erred in denying his motion to suppress a custodial interrogation because he did not waive his Fifth Amendment right to counsel. We find no error and affirm.
All further statutory references are to the Penal Code unless otherwise stated.
FACTS
1. Prosecution Evidence
a. Victim’s Roommate
The victim, Israel Ortiz, died on July 12, 2008. Appellant and Ortiz worked together at company called Armor Cast. In July 2008, Ortiz was sharing an apartment with a man named Oscar Suchite. Ortiz had been living with Suchite for roughly a month when the incident occurred on July 12, 2008. At approximately 6:30 a.m., Suchite was awakened by someone screaming “help.” Suchite ultimately determined that the screaming was coming from his own apartment and that it was his roommate, Ortiz, screaming.
Suchite knocked on the closed door of Ortiz’s bedroom. He thought there was a fight going on and he told the occupants of the room to “stop fighting and to take the fight to the street.” In response, a person who was not Ortiz told Suchite “not to get involved.” Suchite also heard that person telling Ortiz to “shut up.”
Suchite was able to force the door to Ortiz’s bedroom open partially. The person inside the bedroom with Ortiz appeared to be blocking the door. Through the partial opening, Suchite saw Ortiz lying face down on the floor with blood around him. Ortiz was not moving or speaking. Except for a white t-shirt, he was not clothed. Suchite struggled with the door and had it partially open for roughly two minutes. During this two-minute period he was trying to get into the bedroom, but the person on the other side of the door was resisting.
The person on the other side of the door finally applied enough force to close the door on Suchite. Suchite then went to the living room. The person inside Ortiz’s room came out with his face partially covered by his shirt. He had brought his shirt up to just below his eyes. He also was carrying a sharp, shiny object in his hand that looked to Suchite like a potato peeler. His hand and the sharp object he was carrying had blood on them. The person told Suchite not to say anything, and then he ran out of the apartment. Suchite later identified the person who came out of the room as appellant. Police and firefighters eventually arrived at the scene, at which time they determined that Ortiz was dead.
b. Investigating Officer
Detective Armando Acero was the investigating officer in this case. Detective Acero examined the scene the afternoon of the incident. In Ortiz’s room, he observed, among other things, blood on the carpet and bed, used condoms, a white towel with blood on it, clumps of hair consistent with the hair of the victim, and a handmade knife sheath.
Detective Acero interviewed appellant on three separate occasions. The first occasion was two days after the incident, on July 14, 2008. The detective and his partner went to appellant’s home that day, and appellant agreed to accompany them to the police station, where the interview took place. Appellant went voluntarily and was not under arrest at the time. Appellant told the detective that he was involved in a sexual relationship with Ortiz, but he was hesitant to admit this because he did not want his family to know that he was engaged in homosexual activity. Because appellant did not want anyone to know about the relationship, he and Ortiz avoided communicating at work as much as possible and communicated mostly by phone. The relationship had began before Ortiz moved into the apartment with Suchite, but once he moved there, appellant decided to end the relationship. Appellant denied that he had ever visited the apartment that Ortiz shared with Suchite.
Later the same day, Detective Acero interviewed appellant again, this time at appellant’s place of employment. The detective still had not arrested appellant at this point. The detective confronted appellant with some information he had learned from other witnesses. This time, appellant admitted that he had been at Ortiz’s apartment the morning that Ortiz died. He said he had lied to the detective because he did not want his family to know that he was a homosexual.
Appellant further stated that on the morning of July 12, 2008, Ortiz called him and said he was alone and invited appellant over to his apartment. Once there, the two went directly to Ortiz’s room and engaged in sexual relations. Ortiz performed oral sex on appellant while appellant lay on the bed, and then he put a condom on appellant. The two attempted to have anal sex, but appellant was unable to maintain an erection. Ortiz then performed oral sex on appellant again, after which they attempted anal sex another time. Again, appellant was unable to maintain an erection. Ortiz began to try once more. As Ortiz was performing oral sex on appellant, he grabbed appellant’s right leg behind the knee, and with his long fingernails, Ortiz cut appellant behind the knee. Appellant then pushed Ortiz off him, and Ortiz fell on the floor. Ortiz got up and began to approach appellant with “an angry look on his face.” Appellant again pushed him away.
At this point, appellant noticed Ortiz looking in the direction of a kitchen knife that was in the room. Appellant went to the knife and grabbed it, thinking that he did not want Ortiz to get to the knife before he did. Appellant then went to Ortiz, turned him around, and grabbed his head from behind. Ortiz began screaming for help, and appellant told him to “shut up.” Appellant slit Ortiz’s throat from left to right. Appellant said he then “lost control” and started stabbing and cutting Ortiz. Suchite tried to enter the room, but appellant pushed back against the door and told him “not to get involved.” Appellant was surprised to discover that Suchite was in the apartment because he had thought they were alone. Appellant ran out of the apartment, telling Suchite “that he hadn’t seen anything, not to say anything.” He then went to his bicycle, which he had parked at a nearby market. He rode the bicycle to Hansen Dam, approximately nine miles away, where he tried to wash blood off himself.
Detective Acero observed multiple injuries on appellant, including a laceration on his hand, scratches on his front torso and back, two scratches on his left leg, and one on his right leg. The cut on the back of appellant’s right knee, where appellant said Ortiz had scratched him with his long fingernail, looked to Detective Acero like it could not have been caused by a fingernail. It was more than an inch long and approximately one inch deep.
After this second interview, Detective Acero placed appellant under arrest. Detective Acero went to appellant’s residence and collected some clothing and other items. He then conducted a third interview of appellant to go over the items recovered at appellant’s residence. This interview took place at the police station and was recorded and transcribed. At the beginning of this interview, the detective informed appellant of his Miranda rights as follows:
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
“[Detective Acero]:... Okay, ahm, I’m going to rea to read you your rights, okay?
“[Appellant]: Okay.
“[Detective Acero]: Ahm, you have the right to, to remain silent. Do you understand that? Yes or no?
“[Appellant]: Yes.
“[Detective Acero]: Yes? Okay, ahm...
“[Appellant]: Yes, but, one, one question [UNINT.].
“[Detective Acero]: Ah, when you’ve been arrested we have to give, tell you your rights.
“[Appellant]: Okay.
“[Detective Acero]: Right? So that, to know that, that you understand your rights. Ahm, anything you say can be used against you in a court. Do you understand that?
“[Appellant]: Uh huh.
“[Detective Acero]: Yes or no?
“[Appellant]: Yes.
“[Detective Acero]: Yes. Okay. Ahm, you have the right to have an attorney present before and during any ahm, ah, questions you’re asked. Do you understand?
“[Appellant]: Yes.
“[Detective Acero]: Ah, if you can’t hire an attorney, one ca ah, you will be assigned one, free of charge, before any ah, question, if you so wish. Understand?
“[Appellant]: Can you repeat?
“[Detective Acero]: That if, if you can’t ah, if you can’t hire an attorney...
“[Appellant]: Hmmm.
“[Detective Acero]: That if you can’t pay an attorney, ah, you will be assigned one free of charge, ah, before asking questions, if you so wish. You understand?
“[Appellant]: How do you mean, free of charge, how?
“[Detective Acero]: That it won’t cost you anything. That it’ll be the, the attorney, a government attorney.
“[Appellant]: Yes.
“[Detective Acero]: Yes? Okay. Okay, ahm, we went up to your house.
“[Appellant]: Uh huh....”
Detective Acero continued questioning appellant from here. After a brief period of questioning, the detective and appellant had the following exchange:
“[Appellant]: Can I ask you a question?
“[Detective Acero]: Yes.
“[Appellant]: Ah, what, what difference is there between the attorney that’s... free of what? Of...
“[Detective Acero]: Ah, free, as one would say.
“[Appellant]: It’s free?
“[Detective Acero]: That it won’t cost you. Ah?
“[Appellant]: What’s the difference between that one, and the one I have to pay for?
“[Detective Acero]: What difference... ? Based on money, or difference in, in... ?
“[Appellant]: I mean if, for instance, if, if I want to get an attorney I pay for, what... ? Like what advantage would I have, or something like that [UNINT].
“[Detective Acero]: Well, that...
“[Appellant]: Like the advantages and disadvantages.
“[Detective Acero]: As for being attorneys, they’re all attorneys.
“[Appellant]: Uh huh.
“[Detective Acero]: They have the, the same, the same degree in law. Ah, the attorneys appointed by the government, are for people who don’t have the means to pay for a private attorney.
“[Appellant]: Oh, okay.
“[Detective Acero]: Ah, the difference is that the private attorney you have to pay for from your own pocket, the attorney appointed by the government ah, you don’t have to pay for. Ah... you can decide which attorney you want to use, ah, it’s just that ah, you will be asked that, the judge will ask you.
“[Appellant]: Uh huh.
“[Detective Acero]: Ahm, if you have money to pay for an attorney. How much money? It depends on the attorney, not, ah, different attorneys charge different ah, fees, you understand?
“[Appellant]: Uh huh.
“[Detective Acero]: Ah, if you don’t have money to pay for the attorney, you tell the judge you don’t have the money to pay him, and you, you’ll be given an attorney free, same thing. So you won’t be left ah, saying I don’t have an attorney to, to represent me, I don’t have... No. You’ll have an attorney, whether you pay for it, or the government appoints one. It doesn’t matter.
“[Appellant]: Yes.
“[Detective Acero]: Right?
“[Appellant]: Right.
“[Detective Acero]: I can’t tell you, it’s better if you get this one, it’s better if you get another one, because it’s not my place. You understand? I can’t, can’t give you ah, legal advice.
“[Appellant]: Uh huh.
“[Detective Acero]: But you will have the option, and you need to decide ah, ah, what, what attorney you get. And if you can’t pay, one will be appointed for you.
“[Appellant]: Okay.
“[Detective Acero]: Ahm, did you feel when you cut your leg?
“[Appellant]: No, I didn’t feel it....”
The interview continued again after this exchange. Detective Acero elicited a few more details from appellant about the incident. Appellant thought that Ortiz may have scratched him and gotten angry with him because he could not maintain an erection. When Ortiz got back up after appellant pushed him a second time, he looked like he wanted to attack appellant, and appellant wanted to defend himself. Appellant kicked Ortiz and went to grab the knife before Ortiz could get it. Detective Acero asked appellant if it was possible that he cut himself behind the knee because the cut did not appear to the detective to have been caused by a mere fingernail. Appellant admitted that it was possible he had cut himself when he lost control and was cutting Ortiz. Appellant took the knife with him when he left the apartment and disposed of it at Hansen Dam. He later led Detective Acero to the dam and to the location where he disposed of the knife by throwing it in the lake. The knife was not recovered.
c. Medical Examiner
The medical examiner determined that Ortiz’s cause of death was multiple stab and incised wounds. He found four stab wounds and 19 incised wounds on Ortiz’s body. The most serious of Ortiz’s wounds was the fatal incised wound to his neck. The wound was six inches long and up to one inch deep. It had penetrated the neck muscles and right jugular vein. Such a wound would cause the victim to lose the ability to fight or resist and lose consciousness within minutes. The wound was sufficient in itself to cause death by bleeding.
A stab wound is deeper in measurement than it is long. An incised wound is longer in measurement than it is deep.
Other serious wounds to Ortiz included a stab wound on his right temple that was roughly one and a quarter inches long and one and a half inches deep; an incised wound in the right cheek that was four and a quarter inches long and up to one inch deep; a potentially fatal stab wound to the right side of the chest that cut into the right lung and was three inches long and four to five inches deep; and a stab wound in the abdominal area that was two and one quarter inches long and of indeterminate depth because it went through the abdominal wall and into the abdominal cavity.
2. Defense Evidence
The defense did not present any evidence at trial.
DISCUSSION
1. Sufficient Evidence Supports the Verdict of First Degree Murder
Appellant contends that the evidence of first degree murder was insufficient to support the verdict. In evaluating this contention, we “must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence that is, evidence which is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) Even if we might have made different factual findings or drawn different inferences than the jury, we are not to reverse the judgment if the circumstances reasonably justify the factual findings of the jury. (People v. Perez (1992) 2 Cal.4th 1117, 1126 (Perez).) Applying this standard, we find substantial evidence to support appellant’s conviction for first degree murder.
First degree murder is a “willful, deliberate, and premeditated killing.” (§ 189.) “A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] ‘Deliberation’ refers to careful weighing of considerations in forming a course of action; ‘premeditation’ means thought over in advance.” (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) Deliberation and premeditation do not necessarily require any extended period of time. (Perez, supra, 2 Cal.4th at p. 1127.) “‘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....’” (Ibid., quoting People v. Thomas (1945) 25 Cal.2d 880, 900.)
In People v. Anderson (1968) 70 Cal.2d 15, 26-27, our Supreme Court identified three categories of evidence pertinent to determining premeditation and deliberation: (1) planning activity prior to the murder; (2) motive to kill, as gleaned from a prior relationship or conduct with the victim; and (3) manner of killing, from which may be inferred a preconceived design to kill. The court noted that first degree murder typically involved all three types of evidence, or “at least extremely strong evidence” of planning activity, or evidence of motive in conjunction with either planning activity or manner of killing. (Id. at p. 27.) Anderson did not, however, purport to define the elements of first degree murder or “establish an exhaustive list that would exclude all other types and combinations of evidence.” (Perez, supra, 2 Cal.4th at p. 1125.) “The Anderson guidelines are descriptive, not normative.” (Ibid.)
Here, evidence of all three types supports a finding of premeditation and deliberation. First, there is sufficient evidence of planning activity. Appellant parked his bicycle at a nearby market rather than at the victim’s apartment. (Perez, supra, 2 Cal.4th at p. 1126 [fact that defendant did not park his car in the victim’s driveway was planning activity]; People v. Hillery (1965) 62 Cal.2d 692, 704 [fact that defendant parked his car a short distance from the victim’s home and approached on foot was planning activity].) Moreover, appellant went to Ortiz’s apartment on July 12 only after Ortiz told him he was alone there. The jury could have reasonably inferred from this conduct that appellant was trying to avoid detection and planning an attack on Ortiz.
Second, there is sufficient evidence from which a motive to kill may be inferred. Appellant and Ortiz were seeing each other in secret. At work, they tried to avoid contact. Appellant was hesitant to disclose the relationship to Detective Acero. He admitted that he was secretive because he did not want his family to know that he was in a homosexual relationship. The day of the killing, appellant was having difficulty engaging in intercourse, so much so that Ortiz became angry over it. From this evidence, the jury could have inferred that appellant was uncomfortable with or upset over his homosexual relationship with Ortiz, and appellant wanted to prevent anyone from ever discovering it.
Third, the manner in which appellant killed Ortiz provides sufficient evidence of a preconceived design to kill. Appellant stated that he saw Ortiz looking at the knife and made a decision to get to the knife first. Instead of trying to ward off Ortiz in a nonlethal manner, appellant grabbed Ortiz from behind and slit his throat, inflicting a wound that was both debilitating and fatal. Appellant’s inflicting a wound of such lethal severity was consistent with deliberation and premeditation. (People v. Hillery, supra, 62 Cal.2d at p. 704 [defendant must have known plunging a lethal weapon deep into the victim’s chest would be likely to cause death, evidencing a deliberate intention to kill].) Even if the first wound were not so serious, together with the subsequent 22 stab and incised wounds, there was sufficient evidence from which to infer a preconceived design to kill. (People v. Pride (1992) 3 Cal.4th 195, 247 [“A violent and bloody death sustained as a result of multiple stab wounds can be consistent with a finding of premeditation”].)
Appellant contends that, to the contrary, the multiple wounds were evidence of a frenzied explosion of violence rather than a premeditated and deliberate attempt to kill. But appellant stated that he “lost control” and inflicted the numerous knife wounds only after he had slit Ortiz’s throat. Appellant’s statement gives rise to the inference that he was in complete control when he made the decision to inflict the fatal wound on Ortiz.
In sum, the combination of the foregoing evidence was sufficient to support a finding of premeditation and deliberation. Substantial evidence supported appellant’s conviction for first degree murder.
2. At His Third Interview, Appellant Waived His Right to Counsel Before Speaking to Police
Appellant contends that the trial court should have granted a motion to suppress his third interview with Detective Acero because he did not voluntarily waive his right to counsel. We disagree.
Appellant’s brief states that he moved to suppress the second interview with Detective Acero. It is clear, however, that he moved to suppress the third interview. According to Detective Acero, the second interview took place at appellant’s place of employment, when appellant was not under arrest. It was the transcript of the third interview, which took place at the police station, that was provided to the trial court as the subject of appellant’s motion to suppress.
“On review of a trial court’s decision on a Miranda issue, we accept the trial court’s determination of disputed facts if supported by substantial evidence, but we independently decide whether the challenged statements were obtained in violation of Miranda.” (People v. Davis (2009) 46 Cal.4th 539, 586.)
A waiver of Miranda rights must be free from coercion or deception and made with a full awareness of the nature of the right being waived and the consequences of the decision to waive it. (People v. Davis, supra, 46 Cal.4th at pp. 585-586.) “No particular manner or form of Miranda waiver is required, and a waiver may be implied from a defendant’s words and actions, ” looking at the totality of the circumstances. (Id. at p. 585.) A defendant’s willingness to answer questions after acknowledging an understanding of his or her Miranda rights is sufficient to constitute an implied waiver of such rights. (People v. Hawthorne (2009) 46 Cal.4th 67, 86.) “In contrast, an unambiguous request for counsel or a refusal to talk bars further questioning.” (People v. Cruz (2008) 44 Cal.4th 636, 667.)
In consideration of the totality of the circumstances, we find that appellant knowingly and intelligently waived his right to counsel. At the very beginning of the interview, Detective Acero explained to appellant that he had the “right to have an attorney present before and during” the interview. The detective asked appellant if he understood, and appellant replied in the affirmative. He then explained to appellant that an attorney would be provided to him “free of charge, ” if appellant could not afford an attorney. There was some back and forth discussion between the detective and appellant about the meaning of “free of charge, ” but after Detective Acero explained further, appellant indicated that he understood by saying “Yes, ” and he proceeded to answer Detective Acero’s questions. A short while later, appellant asked the detective about the difference between the “free” government attorney and one whom he would pay. This did not evidence confusion about the right to have an attorney, only confusion about how the government attorney and one he might retain differed. Detective Acero again offered some explanation, and appellant appeared to be satisfied and proceeded to answer questions. Detective Acero’s responses to appellant’s questions about counsel were clear and straightforward. Appellant did not request counsel in any way, shape, or form. He did not refuse to talk to Detective Acero.
These circumstances are similar to those in People v. Cruz, supra, 44 Cal.4th at pages 669-670, in which our Supreme Court found a valid waiver of the defendant’s right to counsel. In that case, the detective read the defendant his Miranda rights, and after each, he asked the defendant whether he understood the right. (Id. at p. 669.) The defendant replied in the affirmative each time. (Ibid.) The detective then commenced questioning the defendant. (Ibid.) The court held that the “defendant’s responses to [the detective’s] inquiries reciting his Miranda rights reflect a knowing and intelligent understanding of those rights, ” and the “defendant’s willingness to answer questions after expressly affirming on the record his understanding of each of those rights constituted a valid implied waiver of them.... ‘[T]he record is devoid of any suggestion that the police resorted to physical or psychological pressure to elicit statements from defendant. To the contrary, defendant’s willingness to speak with the officers is readily apparent from his responses. He was not worn down by improper interrogation tactics, lengthy questioning, or trickery or deceit.’” (Id. at pp. 668-669, quoting People v. Whitson (1998) 17 Cal.4th 229, 248-249.)
Appellant’s knowing and intelligent understanding of his rights is equally reflected here, and the record is equally devoid of any suggestion that Detective Acero resorted to any improper tactics. Under these circumstances, appellant impliedly waived his right to counsel.
DISPOSITION
The judgment is affirmed.
WE CONCUR: RUBIN, Acting P. J., GRIMES, J.