Opinion
D057389
08-05-2011
THE PEOPLE, Plaintiff and Respondent, v. GABRIEL GERARD RESVALOSO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF015408)
APPEAL from a judgment of the Superior Court of Riverside, F. Paul Dickerson III, Judge. Affirmed.
Gabriel Resvaloso appeals from a judgment convicting him of first degree murder. He argues there was insufficient evidence to support the jury's finding of premeditation and deliberation. We reject this contention and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On the morning of December 4, 2005, cab driver James Burrows was found lying on a roadway at a quarry. Burrows had been shot in the back of the head, and later died from his injury. Defendant does not dispute the evidence supports that he committed second degree murder by intentionally shooting Burrows after Burrows picked him up for a cab ride on the night of December 3. However, defendant argues there is insufficient evidence to support the jury's finding that the killing was a first degree, premeditated murder.
On the night of the shooting, defendant was staying at a motel in Hemet. At 10:52 p.m. on December 3, defendant asked the motel clerk to call for a taxi to give him a ride to Riverside. The cab company sent Burrows to pick up defendant. Burrows was not specifically requested by defendant, but was merely the next driver in line for an out-of-town fare.
The motel's video surveillance camera showed Burrows leaving the motel with defendant shortly after 11:09 p.m. About one-half hour later (at 11:35 p.m.), a camera used to record license plates showed Burrows's cab driving along Soboba Road on the Soboba Indian Reservation. Between 11:35 p.m. and 4:45 a.m., the camera showed the cab being driven back and forth along Soboba Road for a total of seven round trips. The motel surveillance camera showed defendant walking back into the motel at 5:15 a.m.
The camera did not capture images of who was in the cab.
Meanwhile, cab company dispatchers had become concerned about Burrows's long absence and began to investigate the matter. Sometime after 5:30 a.m., a dispatcher found Burrows's cab parked in a parking lot near the motel. The police were summoned, and at about 7:17 a.m. defendant was arrested in his motel room.
Shortly after 10:00 a.m. that same morning, Burrows was found, still alive, lying on a dirt roadway in a quarry off of Soboba Road near the Soboba Casino. The quarry, consisting of dirt and rocks, was in a remote rural area. Burrows was lying about one-quarter mile down the roadway into the quarry. There was a baggie in the roadway containing a small amount of methamphetamine. Burrows had been shot in the back of the head, and there were several pools of blood near his body. The bullet had entered the back of his head in a slightly downward and right-to-left direction. A bullet fragment was found imbedded in his head. After surgical treatment at the hospital, Burrows died about two weeks after the shooting.
The quarry road was accessible by car and was frequently used by trucks when the quarry was open. It was essentially a dead-end road; the area beyond the road was not easily accessible. The main road (Soboba Road) leading to the quarry roadway was a well-traveled road that led to the casino.
The forensic examiner was unable to determine how far the gun was from Burrows's head, nor the relative positions of Burrows and the shooter at the time of the shooting.
There was no blood in Burrows's cab, suggesting that he had not been shot while inside the cab. A homicide detective opined that Burrows had been shot at the location where he was found lying on the ground. There was a spent bullet casing on the driver's side floorboard of the cab. In defendant's motel room, the police found a gun, a gun holster, ammunition, a cocaine or methamphetamine pipe, and a baggie with what appeared to be cocaine or methamphetamine residue. The authorities determined that the bullet fragment found in Burrows's head and the shell casing found in Burrows's cab had been fired from the gun found in defendant's motel room. Forensic testing revealed gunshot residue on one of defendant's hands.
A homicide detective testified that Burrows could have been shot outside the cab, and the casing ejected into the cab or retrieved by the shooter and placed in the cab.
The cab had travelled about 190 miles that night. Cash ($170) was found in a pocket of the driver's side visor organizer. There were beer cans inside the cab.
At trial, cab company dispatchers Vicki Heavin and Tiffany Thomas described Burrows's typical work performance and the communications with Burrows that occurred after he picked up defendant. Burrows had been driving for the cab company for about two years. He was a reliable, honest, professional employee who took pride in his work and who was friendly and nonconfrontational. The cab drivers were required to contact dispatch when they started and completed a fare, and Burrows regularly complied with this procedure.
On the night Burrows picked up defendant, Burrows contacted dispatcher Thomas to tell her he had picked up his fare for the ride to Riverside. He should have finished the round trip drive between Hemet and Riverside in about two hours. When Thomas had not heard from him after two or three hours, she tried several times to reach him on his radio and cell phone. He did not answer her calls, which was out of character for him.
Thomas finally reached Burrows at about 2:20 a.m., and he told her he was still "on service" but was on his way back to Hemet. His voice did not sound distressed, although he sounded as if he were in a hurry. Thomas reached him again at about 3:40 a.m. on his cell phone. Again, he did not sound distressed, but he sounded tired and "a little bit" withdrawn. When Thomas asked him what he was doing, he was "[r]esponsive but evasive." He answered her questions, but did not give her a lot of details, which was not his normal behavior. When she asked him if he was still working, he told her, "maybe, maybe not." Feeling frustrated, Thomas told him to let her know when he knew what he was doing, and hung up. Burrows never notified dispatch that his destination had changed from the Riverside trip, as he would have been expected to do.
Thomas testified that cab drivers who are in trouble can use the radio to contact the dispatcher and say a secret distress code, but Burrows did not utilize this procedure the night of the shooting.
About 10 minutes after Thomas's last conversation with Burrows, Burrows's girlfriend called Thomas. After speaking with Burrows's girlfriend, Thomas tried to recontact him, but was unable to reach him. When Burrows still had not contacted Thomas by 5:00 a.m., Thomas and Heavin commenced a search for him, which resulted in the discovery of his cab at the motel.
Jury Verdict and Sentence
Defendant was convicted of first degree, premeditated murder and possession of a firearm by a felon. The murder verdict included a special circumstance finding that the victim was a taxicab driver performing his duties, and an enhancement finding that
defendant personally discharged a firearm causing death. Defendant admitted prior prison term allegations. He was sentenced to life without the possibility of parole, plus 25 years to life and a determinate six-year term.
The jury was unable to reach a verdict on a special circumstance allegation that the murder was committed during a carjacking.
DISCUSSION
Defendant argues the evidence was insufficient to support the jury's premeditation finding, and that his conviction should be reduced to second degree murder.
In evaluating a challenge to the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether there is substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Nelson (2011) 51 Cal.4th 198, 210.) We presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (Ibid.) If the circumstances reasonably justify the jury's findings, reversal is not warranted merely because the circumstances may also be reasonably reconciled with a contrary finding. (Ibid.)
A murder that is willful, deliberate, and premeditated is murder in the first degree. (People v. Booker (2011) 51 Cal.4th 141, 172.) Premeditation and deliberation require more than a showing of intent to kill. (Ibid.) Deliberation refers to careful weighing of considerations in forming a course of action; premeditation means thought over in advance. (Ibid.) "An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse." (People v. Stitely (2005) 35 Cal.4th 514, 543.) Premeditation and deliberation do not require an extended period of time, merely an opportunity for reflection. (People v. Cook (2006) 39 Cal.4th 566, 603.) Premeditation and deliberation can occur in a brief interval; 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 . . . [distinguishing] those homicides . . . which are the result of mere unconsidered or rash impulse hastily executed." (People v. Thomas (1945) 25 Cal.2d 880, 900-901; People v. Solomon (2010) 49 Cal.4th 792, 813.)
The evidence shows that in response to defendant's call, Burrows was dispatched as the next-in-line driver to take defendant from a motel in Hemet to Riverside. Burrows and defendant left the motel at about 11:00 p.m., and the last communication between Burrows and the dispatcher occurred at about 3:40 a.m. Burrows and defendant did not go to Riverside, but instead traveled to a location outside of Hemet where the cab was driven back and forth along a road for several hours. Burrows was a responsible, professional cab driver, yet on the night of his ride with defendant he did not inform dispatch of the change in circumstances that brought him to a different destination and that occupied him for several hours beyond the expected two-hour roundtrip drive between Hemet to Riverside. Initially the dispatcher was unable to contact Burrows, and when she did reach him, he sounded in a hurry during the first call, and he sounded evasive, tired and withdrawn during the second call. Thereafter, Burrows was found lying in a quarry with a gunshot wound to the back of his head, and his cab was found near defendant's motel room. There is no dispute on appeal that the evidence supports that defendant was the person who shot Burrows and that the shooting was intentional.
From the evidence outlined above, the jury could reasonably infer that Burrows involuntarily remained under defendant's control for a period of time after he picked him up in the cab until he was shot; that Burrows's compliance was secured by the defendant's possession of a gun; and that defendant's use of a gun to coerce Burrows showed that defendant ultimately committed a premeditated, rather than a rash, impulsive killing. That is, based on the evidence showing defendant went with Burrows in the cab and later shot him at another location, the jury could find that defendant possessed the gun while Burrows was driving him in the cab. Based on Burrows's reputation as an honest, reliable employee, his uncharacteristic failure to contact dispatch about the changed destination, and his rushed, evasive, and tired-sounding responses when dispatch did reach him, the jury could deduce that at some point Burrows was not a voluntary participant in whatever events unfolded along Soboba Road. Based on defendant's possession of the gun, the jury could infer that Burrows was afraid to speak freely to the dispatcher. The jury could conclude that defendant secured Burrows's compliance by threatening him with the gun, and that defendant intended to shoot and kill Burrows in the event that Burrows refused to comply. A finding that defendant used the gun to force Burrows's compliance supports an inference that defendant was engaged in the reflective process characteristic of a premeditated killing, and that he did not merely engage in a rash, unconsidered killing with no conscious weighing of the decision to shoot and kill.
The inference of a deliberative, rather than impulsive, killing is further buttressed by evidence concerning the nature and location of the shooting. The jury could reasonably conclude that Burrows was shot in the back of the head in the early morning hours at the quarry. Again, based on the evidence showing that Burrows was a professional, responsible cab driver who was acting out of character vis-à-vis dispatch, the jury could infer that Burrows did not willingly go to this isolated location off the main road, but was forced to go there and then to exit the cab. From this scenario, the jury could deduce that defendant was thinking about shooting and killing Burrows while forcing him to go to the quarry, and that he engaged in further reflective processes as he made Burrows leave the cab, pointed the gun at him, and shot him in the back of his head. (See, e.g., People v. Nelson, supra, 51 Cal.4th at p. 213 [evidence showed ample time to premeditate and deliberate based on steps taken by defendant prior to firing gun, including climbing out of moving car, sitting on window frame, reaching across roof, bracing himself, and aiming at victim].)
To support his challenge to the jury's finding of premeditation, defendant asserts there was no evidence that he planned the shooting in advance or that he had a motive to kill the victim. The absence of these factors is not determinative. The California Supreme Court has explained that the evidentiary categories of planning, motive, and method are simply an aid for reviewing courts to assess whether the evidence supports that the killing was the result of preexisting reflection rather than rash impulse; however, the categories need not be present in any special combination nor afforded special weight, nor are they exhaustive. (People v. Booker, supra, 51 Cal.4th at p. 173.) The three categories do not " 'establish an exhaustive list that would exclude all other types and combinations of evidence that could support a finding of premeditation and deliberation.' " (People v. Solomon, supra, 49 Cal.4th at p. 812.) As set forth above, the premeditation finding is supported by factual circumstances from which the jury could reasonably conclude that defendant reflected upon his decision to shoot and kill when, armed with a gun, he forced the victim to comply with his directives and ultimately shot him in the back of the head.
Defendant also argues the evidence did not show a typical "execution style" shooting because there was no showing that the gun was fired at close range or that the victim was kneeling or lying down when he was shot. Again, this evidentiary showing was not necessary to support the jury's verdict.
The record supports the jury's finding of premeditation and deliberation.
DISPOSITION
The judgment is affirmed.
HALLER, J. WE CONCUR:
BENKE, Acting P. J.
AARON, J.