Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Harold W. Hopp, Judge. No. INF054419
Gerald J. Miller, 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, Daniel Rogers and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
MILLER J.
A jury convicted defendant Miguel Romo Aguilar of first degree murder (count 1—Pen. Code § 187, subd. (a)). The jury additionally found true allegations that defendant had personally and intentionally discharged a firearm proximately causing death to another person (§§ 12022.53, subd. (a), 1192.7, subd. (c)(8)) and personally used a firearm (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)). The trial court sentenced defendant to an aggregate, indeterminate term of imprisonment of 50 years to life. On appeal, defendant contends that this court should reduce his conviction to second degree murder or manslaughter because insufficient evidence was adduced below that the killing was deliberate, premeditated, and committed with malice. We disagree and, therefore, affirm the judgment in full.
All further statutory references are to the Penal Code unless indicated.
FACTS
A. Prosecution’s Case
The victim’s brother, Victor Moroles, testified that on May 23, 2006, around 5:30 p.m., he, defendant, the victim, Jose Hernandez, Hector and his children, and Omar left the victim’s home to go ATV riding in Dillon, a local venue for off-road vehicles. They stopped to purchase a 12-pack of beer on the way. While at Dillon everyone was drinking. They returned to the victim’s home between 7:00 and 8:00 p.m. where they continued to drink.
No last name for Hector is given in the record.
It is unclear from the record whether “Omar” is the individual’s first or last name. No other name, first or last, was given for “Omar” during the rest of the trial.
At some point that evening, Omar and Hernandez got into an argument. They started pushing and shoving each other. The victim and Moroles separated the two. This angered defendant, which resulted in an argument and the exchange of punches between defendant and the victim. Hernandez and Moroles intervened after a minute or two.
Defendant cursed the victim as defendant walked down the driveway toward the street. The victim told defendant to leave his home. Defendant took his shirt off when he reached the street. Defendant had tattoos all over his body including “across his whole back.” The victim also removed his shirt and the two began fighting again in the street. The victim knocked defendant to the ground where he continued to punch defendant. Defendant was the loser of the fight. Defendant walked off and the victim returned to the house. No one attempted to prevent defendant from leaving or chased after him.
Defendant returned in a black Jeep Cherokee four to five minutes later. He exited from the front passenger side of the vehicle and walked towards the victim. The victim and defendant exchanged a few words and shook hands. Moroles then heard a gunshot. He saw the victim running towards him. Defendant had a gun in his hand. Defendant began walking towards Moroles and pointed the gun at him. Moroles ran and heard another gunshot. At no time during the evening did Moroles see the victim with a weapon.
The victim’s aunt, Amelia Rios, who lived in a neighboring home, testified that she heard music and talking coming from the victim’s home around 11:00 p.m. At some point she heard arguing. Prior to midnight she went to her front door, opened it, and peered outside toward the victim’s home. She saw the victim standing in the driveway. Someone came from a vehicle and approached the victim. The individual, whose face she did not see, had a shaved head, was not wearing a shirt, and bore what appeared to be either tattoos or there was a shadow on his back. As the individual approached the victim, the victim extended his right hand as if to shake the other’s hand.
Rios then heard a popping noise, reminiscent of a firecracker. The victim stumbled backward and expressed an expletive. Rios turned away from the door and heard another popping noise less than a minute later. Someone then sped away in a vehicle.
Stacy Rios, the victim’s cousin who resided with Amelia Rios, testified that she also heard and saw approximately 10 people having a get-together at the victim’s home around 11:00 p.m., during which they played music and were loud. Sometime before midnight persons at the party appeared to be arguing. She heard some fairly loud shouting and looked out her window. She saw one individual get into the passenger seat of a black SUV and leave at a high rate of speed. No more than five minutes later the vehicle returned. An individual with a shaved head, no shirt, and what appeared to be a shoulder-to-shoulder tattoo exited the vehicle, approached the victim, and appeared to extend his hand toward the victim. The victim also extended his hand. The victim held nothing in his hands. She then heard gunshots and called 911.
Deputy Espinosa was dispatched to the residence and arrived at 11:51 p.m. Hernandez, Moroles, and a Victor Reyes were detained at the scene. The victim was found lying on his back outside the front door. There was a bullet wound in the center of his chest. He did not appear conscious and he had no pulse.
Sheriff’s Investigator Brewster arrived at the scene at 12:40 a.m. He noted a blood trail leading to the house. There were numerous indicators that the individuals at the residence had been drinking: Multiple plastic cups spread all over the front yard and driveway contained various levels of what smelled of alcohol; there were empty beer bottles, several empty beer boxes, and at least one empty vodka bottle. Two.32-caliber shell casings were found at the scene. One shell casing was located in close proximity to the beginning of the blood trail and appeared to have blood on it. The other shell casing was found “a fair distance from the first one.” The victim was wearing heavy work boots, but no weapons were found on his body.
The forensic pathologist who conducted the autopsy of the victim’s body concluded that the cause of death was a gunshot wound through the chest. The victim had an entry wound on his chest and an exit wound through his back. The projectile went through the victim’s heart. The entry wound was determined to be a “contact wound,” meaning “that the end of the barrel of the weapon used was actually in contact with the skin surface or very close, within an inch or less.” There was actual depositing of gunpowder on the surface of the victim’s skin. A toxicology screening of the victim’s blood taken 12 hours after his death revealed the presence of alcohol and cocaine in his system.
It was stipulated by the parties that defendant left the victim’s home that night and returned thereafter in a black Jeep Cherokee owned by Hernandez. It was further stipulated that defendant fled to Mexico after the incident, was arrested there on September 2, 2006, and was subsequently extradited in connection with this matter.
B. Defense’s Case
Edgar Perez testified that he arrived at the victim’s home on May 23, 2006, sometime between 3:00 and 4:00 p.m. When he arrived, the victim, defendant, Hernandez, Moroles, and Omar were already there. Perez left the victim’s home with the others when they headed for Dillon. They stopped to purchase beer on the way. Everyone at Dillon was drinking beer and vodka. They were all “heavily buzzed.” Everyone, except Moroles, was also using marijuana and cocaine. On their way back to the victim’s home they obtained more beer and vodka.
Both in the prosecution’s case-in-chief and on rebuttal, Moroles testified that no one by the name of Edgar Perez was at the house that night. In fact, he testified that he did not even know anyone by that name.
Perez testified that at some point during the evening, Omar and Hernandez engaged in an argument, which almost evolved into a physical confrontation until defendant broke it up. The victim became upset that defendant had intervened. The victim grabbed defendant’s head, yelled profane epithets at him, repeatedly asked defendant, “‘[w]here the fuck is your cousin at,’” and eventually “took [defendant] to the ground.” Hernandez and Joe Saenz intervened in an attempt to separate defendant and the victim. Moroles started hitting Hernandez and defendant. The victim went up to defendant and “sucker punch[ed]” him. The victim got on top of defendant and continued hitting him. Hernandez pulled the victim off defendant.
It is unclear from the record who defendant’s cousin was or why the victim wanted to know where he was.
Both in the prosecution’s case-in-chief and on rebuttal, Moroles testified that, though he knew Joe Saenz, Saenz was not at the house that night.
Defendant left, but returned as a passenger in the Jeep a minute or two later. Defendant exited the vehicle and walked towards the driveway of the victim’s home. The victim walked towards defendant. The victim spoke to defendant in an angry tone. The victim did not have anything in his hands, but he made a fist as if in preparation to throw a punch. A gun “popped out” from defendant’s pocket in his left hand, a flame shot out, and Perez heard a gunshot. Defendant fired the gun at point-blank range. The victim stumbled towards the house then fell to the ground. Defendant chased Moroles and took a shot at him. Perez admitted that he was “heavily buzzed” and high during the entire incident. Perez testified that from his first arrival at the victim’s home to the time of the incident, he had imbibed between 16 and 17 beers, had smoked marijuana during the entirety of the day, and had used cocaine at Dillon and afterward.
Hernandez testified that he picked defendant up for work that day at 5:30 a.m. He did not see defendant with a gun at work, nor to his knowledge was there a gun in his Jeep Cherokee. After work, Hernandez and defendant went to a Mexican restaurant where Hernandez drank three beers; defendant drank something too. However, neither of them was drunk. They left the restaurant and went to the victim’s home. Moroles, Saenz, Omar, and Perez were there when they arrived. They all left to go bike riding in Dillon, where everyone used the victim’s bike. Everyone was drinking, and everyone was “highly buzzed.” On the way back to the victim’s home they stopped off to buy more beer.
Once they arrived at the victim’s house they started partying and listening to music. Everyone, including Moroles, was drinking, smoking marijuana, and using cocaine. Omar and Hernandez got into an argument. Defendant broke up the argument. Moroles and the victim then began fighting with defendant. Defendant dropped to the ground where Moroles and the victim beat him, kicked him, and sucker punched him. Hernandez’s girlfriend pulled up to the house and intervened, helping defendant into the black Jeep Cherokee.
Moroles testified that the victim never kicked defendant in the head. Likewise, Perez testified that he did not see anyone kicking defendant.
Defendant returned in the Jeep two to three minutes later. Defendant got out of the vehicle and walked towards the victim. The victim reached out with his hand toward defendant; however, it did not appear to Hernandez that the victim was attempting to shake defendant’s hand. It appeared to Hernandez as if they were going to fight again. Hernandez turned away, but heard a gunshot; everyone started running. He heard a second gunshot five to ten seconds later. Defendant looked angry, disrespected, and embarrassed because he had been beaten in front of all his friends. Defendant ran off thereafter.
DISCUSSION
Defendant contends that the evidence adduced below demonstrated that defendant was extremely intoxicated, high on cocaine and marijuana, and sufficiently provoked such that his killing of the victim was committed in the heat of passion, i.e., the evidence was insufficient to demonstrate that defendant had the requisite mental state to sustain a first degree murder conviction. Hence, he maintains his conviction must be reduced to second degree murder or manslaughter. We disagree.
The due process provisions of the federal and state Constitutions require sufficient evidence to support a conviction. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Johnson (1980) 26 Cal.3d 557, 576-577.) To determine whether there was sufficient evidence to support a conviction, we review the entire record in the light most favorable to the judgment. (People v. Chatman (2006) 38 Cal.4th 344, 389.) Substantial evidence is evidence that is “reasonable, credible, and of such solid value ‘that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (Ibid.)
“In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “‘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.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1141.)
“‘The word “deliberate” means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. The word “premeditated” means considered beforehand.’” (People v. Perez (1992) 2 Cal.4th 1117, 1123.) Courts look at three types of evidence to determine whether a murder was deliberate and premeditated: (1) planning activity, (2) prior conduct with the victim sufficient to reasonably infer a motive to kill, and (3) the manner of the killing. (People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson).) This list is not exhaustive, does not comprise mandatory elements requisite to be proven in order to sustain a conviction, and is used only to aid reviewing courts in assessing whether the evidence supports the finder of fact’s conclusion that a killing was the result of preexisting reflection and deliberation. (Perez, at p. 1125.) In determining whether an act is premeditated and deliberate “‘[t]he true test is not the duration of time, but rather the extent of the reflection. A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it include[s] an intent to kill, is not such [a] deliberation and premeditation....’” (Id. at p. 1124.)
Of course, a defendant is free to show that, due to voluntary intoxication, the requisite intent to kill was not formed. (People v. Saille (1991) 54 Cal.3d 1103, 1116-1117.) “In a murder case, if this evidence is believed, the only supportable verdict would be involuntary manslaughter or an acquittal. If such a showing gives rise to a reasonable doubt, the killing (assuming there is no implied malice) can be no greater than involuntary manslaughter. [Citation.]” (Ibid, fn. omitted.)
Initially, we note that much, if not most, of defendant’s assertion that he was highly intoxicated is simply not supported by the record. There was no specific testimony by any of the witnesses as to how much liquor defendant drank, how much marijuana he smoked, and/or how much cocaine he used. Likewise, as to how much everyone drank and whether everyone, or anyone, was using marijuana and cocaine, this was a credibility determination that the jury, not this court, was empowered to make. Although Moroles testified that he was “sure” everyone was drinking at Dillon and that everyone continued to drink once they returned to the victim’s home, he also testified that he never saw any drug use during the entire day. Likewise, although Perez testified that everyone, except Moroles, was using marijuana and cocaine, Moroles testified that Perez was not even present at all during any of the events of the day. Hernandez testified that everyone, including Moroles, was drinking, smoking marijuana, and using cocaine. Thus, to the extent the jury believed Moroles and disbelieved Perez and Hernandez, it could rationally have concluded that defendant had not used any cocaine or marijuana that day.
Perez testified that he drank a total of between 16 and 17 beers during the day, smoked marijuana, and used cocaine; nevertheless, he was quite clear that while he was “heavily buzzed” and “high,” he was not drunk. Indeed, he testified that “[i]t takes a lot to get me buzzed.” He also testified that everyone else was either “buzzed” or “heavily buzzed.” Likewise, Hernandez testified that everyone was drinking beer and vodka, smoking marijuana, and using cocaine. Everyone was “highly buzzed.” However, it is difficult to understand the basis for either Perez or Hernandez’s conclusions that everyone was “buzzed” or “highly buzzed” because those conclusions were inherently speculative. Neither individual specifically indicated how much everyone imbibed nor testified that they knew each individual’s level of tolerance. Defendant attempts to infer that because Perez drank so much, defendant must have drank a similar amount, but that leap in logic is an obvious non sequitur. Similarly, defendant contends that because the victim’s body still contained traces of alcohol and cocaine 12 hours after his death, this is demonstrative of how extremely high and intoxicated both the victim and, by implication, defendant must have been. Of course, again, just because one individual imbibed a high degree of alcohol and drugs does not necessarily mean defendant did.
Hernandez testified that everyone used the victim’s ATV while they were in Dillon. However, both Perez and Moroles testified that only the victim used his ATV in Dillon. Hernandez testified that Moroles and the victim kicked defendant when he was on the ground; however, Moroles testified that the victim never kicked defendant in the head and Perez testified he never saw the victim kick defendant at all. Both Perez and Moroles testified that defendant walked away from the final fight between defendant and the victim; however, Hernandez testified that defendant had to be helped into the Jeep Cherokee by Hernandez’s girlfriend. It was the jury’s role, not this court’s, to resolve these inconsistencies. Nonetheless, the testimonies of every percipient witness concurred that defendant was able to walk towards the victim with no apparent problems after exiting the Jeep Cherokee. Substantial evidence was adduced during the trial from which the jury could reasonably have inferred that, despite whatever degree of intoxication it determined defendant had at the time he killed the victim, he, nevertheless, had sufficient presence of mind to manifest deliberation and premeditation. Likewise, the evidence was reasonably susceptible to the jury’s apparent interpretation that defendant manifested express malice toward the victim.
Finally, substantial evidence existed that defendant did not act rashly or out of heat of passion such that the first degree murder conviction was improper. Again, it was properly the jury’s province in deciding whose testimony should be believed and whose should be disbelieved. Moroles testified that the first physical confrontation between defendant and the victim lasted only a minute or two; it was broken up quickly. Defendant suffered no discernible injuries. The second fight was also “rather quick.” The victim punched defendant only twice after he went to the ground. Again, defendant incurred no obvious wounds. All in all, Moroles testified that the victim hit defendant only four to five times. No one chased defendant after the final physical confrontation or prevented him from leaving. Thus, to the extent the jury credited Moroles’s testimony, the beating defendant received did not objectively warrant a lethal response. Defendant could have simply left the house unharmed, yet he chose to return armed with a pistol and shoot the victim at point-blank range through the heart.
Moreover, the evidence satisfies all the Anderson criteria for establishing deliberation and premeditation. Hernandez testified he never saw a gun on defendant at work. He also testified that to his knowledge there was no gun in the Jeep Cherokee. Thus, the jury could reasonably have concluded that in the one to five minutes defendant left the victim’s house and returned, he went to get a gun. This is planning activity. Second, defendant’s one or two physical confrontations with the victim that evening established a sufficient subjective motive, albeit an objectively unreasonable one, for him to kill the victim. Finally, the manner of killing suggests premeditation, deliberation, and express malice. Testimony established that defendant approached the victim with his arm and hand outstretched to shake the victim’s hand in an apparent attempt at reconciliation. This falsely conveyed impression of conciliation proved to be a sufficient artifice to lower the victim’s guard enough to permit defendant to shoot defendant in the chest, through the heart, at point-blank range, even perhaps touching defendant’s chest with the gun. Substantial evidence supported the jury’s conclusion that defendant deliberately, premeditatedly, and with express malice sought and accomplished the death of the victim.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST Acting P. J., GAUT J.