Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. CRF073675, CRF053508
HULL, J.
A jury convicted defendant Christopher Allen Buchanan of first degree murder (count 1; Pen. Code, § 187, subd. (a)), arson (count 2; § 451, subd. (d)), and unlawful mutilation of human remains (count 3; Health & Saf. Code, § 7052, subd. (a)). As to count 1, the jury found that defendant personally used a deadly weapon. (Pen. Code, § 12022, subd. (b)(1).) In a bifurcated proceeding, the trial court found that defendant had one strike (id., § 667, subds. (b)-(i)) and one prior serious felony conviction (id., § 667, subd. (a)(1)), and that he had violated probation in two trailing matters. (Undesignated statutory references that follow are to the Penal Code.)
Sentenced to a total state prison term of 61 years to life, defendant contends: (1) there was insufficient evidence to support his conviction on count 1 under either theory raised by the People (premeditation and deliberation or felony murder); (2) there was insufficient evidence to instruct on either theory; (3) Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 376 as modified by the trial court created an illogical permissible presumption; (4) the trial court erred prejudicially by admitting evidence of an uncharged prior theft under Evidence Code section 1101, subdivision (b); and (5) the trial court failed to award custody credits as to the present offenses. Agreeing only with defendant’s last point, we modify the sentence to include the required credits and otherwise affirm.
FACTS AND PROCEEDINGS
Defendant beat Ryan Pimentel to death with a metal pipe in the bedroom of defendant’s apartment in Sacramento, then dumped Pimentel’s body in a remote spot and set it on fire. Items of Pimentel’s property were later found in the apartment. The People argued that the crime was first degree murder based on alternative theories of premeditation and deliberation or felony murder in the commission of robbery. Defendant did not present evidence, but argued that he was guilty only of manslaughter based on his prior accounts of the crime.
Defendant and Pimentel belonged to a circle of friends in their late teens and early twenties. Pimentel sometimes sold marijuana to the others. There was no evidence of any grudge or quarrel between defendant and Pimentel before June 25, 2007.
On June 25, after mentioning to another in a phone call that he was with defendant, Pimentel did not show up at events he was expected to attend. On June 26, Vickie L., Pimentel’s aunt, called defendant, who said he had dropped Pimentel off in West Sacramento. Vickie L. called the police that evening. (Ibid.)
On the morning of June 26, Yolo County Sheriff’s deputies went to an agricultural area off Russell Boulevard in West Sacramento where a body had been found. Near the partly burned body were shoe prints, possibly from Converse sneakers, and tire tracks. Later that day, the decedent was identified as Pimentel.
At an autopsy conducted on June 27, a forensic pathologist found that the decedent had suffered at least three blows to the face and head from a linear instrument with a sharp end, producing a depressed skull fracture, a gaping wound over the left eye, and injuries to the bridge of the nose and the mouth. There were no other injuries. The front of Pimentel’s body and one of his hands was burned, but no soot was found in the trachea or the lungs. So far as could be determined, the hands had no offensive or defensive wounds.
Pimentel was five feet nine inches tall and weighed 138 pounds. When arrested, defendant stood 5 feet 11 inches tall and weighed 190 to 200 pounds.
The pathologist concluded that death was caused by a combination of blunt force and sharp force injuries to the head. When shown the metal pipe alleged to be the murder weapon, he opined that its ends could have inflicted sharp force injury and the remainder could have inflicted blunt force injury.
Because law enforcement had learned that Pimentel was last seen with defendant, on the night of June 27 Sacramento police questioned defendant at his residence. He again claimed he had left Pimentel in West Sacramento, but this story did not fit the known facts, and defendant’s Converse sneakers were flecked with blood. The officers arrested him. In custody, he gave a videotaped statement, which was viewed by the jury.
In the statement, defendant told the police that he called Pimentel on June 25 to say that defendant’s friend Brandon S. wanted to buy marijuana from Pimentel. (Brandon S. testified at trial that he had not given defendant any such message.)
After Pimentel agreed to sell the marijuana, defendant, driving a Dodge Neon that belonged to defendant’s girlfriend, Dawn J., picked Pimentel up in West Sacramento. Pimentel was at the time wearing a silver chain or necklace. Defendant and Pimentel went to a store where Pimentel activated a new cell phone and transferred the numbers from his old one. They then went to defendant’s and Dawn J.’s apartment in Sacramento.
According to defendant, he caught Pimentel rifling through drawers in the bedroom. The ensuing argument became physical. Defendant punched Pimentel two or three times, and they wrestled a little. Defendant admitted that Pimentel did not land a blow or injure him in any way. After wrestling, defendant picked up the pipe (which he had found in the back alley some time before and thought “nifty”) and hit Pimentel with it twice. Defendant was not trying to kill Pimentel, but lost his temper or blacked out.
Pimentel fell. Thinking correctly that he had killed Pimentel, defendant put a bag over his head, wrapped a towel around it, carried Pimentel’s body down the back stairs, and put it in the trunk of the car. Defendant then drove off to pick up Dawn J. at work; they had something to eat and returned home. She asked him about the bloodstains she saw in the apartment and but did not believe his answers to her questions.
The next morning, after taking Dawn J. to work, defendant drove to an agricultural area in Yolo County, took Pimentel’s body out of the trunk, put it on the ground, poured gasoline over it, lit the gasoline, and drove away. He was so panicked and “freaked out” that he did not try to cover his tracks. He dumped Pimentel’s cell phone and other property in Roseville. He did not know what happened to the chain Pimentel was wearing around his neck.
Dawn J. testified that when defendant picked her up at work on June 25 he seemed “[a] little more excitable” than usual. When she had called him from work, he had been “really irritable, kind of short” with her, which was unusual. Arriving home, she noticed stains in the carpet, the living room, and the bedroom, and a dent in the bedroom wall which had not been there that morning. Defendant claimed he had spilled coffee and barbecue sauce and had dented the wall when he tripped over the cat. She did not believe these stories, but no other explanations occurred to her. She cleaned up the stains as much as possible.
Later that night, defendant’s friend Brandon S. came over; they sat around, smoked marijuana, and played video games through the night, even after she went to bed. Defendant told Brandon S. he had gotten the marijuana that day from Pimentel.
The next morning, defendant took Brandon S. home, then returned and drove Dawn J. to work. She noticed that the car smelled of gas and the gas can normally kept in the trunk was in the back seat. She also noticed that the metal pipe which was usually in the back seat was missing. From the time defendant found it, they had always kept it in the car; she had never seen it anywhere else.
After defendant’s arrest, he told Dawn J. a story that differed from his confession to the police. He now claimed he had picked up Pimentel to get marijuana for himself. They went back to the apartment because Pimentel was waiting for friends. Pimentel wanted to use the bathroom, so defendant propped open the downstairs door with the metal pipe, then stayed outside to smoke a cigarette. When he finished, he grabbed the pipe, went upstairs, and threw it on the bed. He went to use the bathroom, but it was out of toilet paper. Coming out to get some, he saw Pimentel in the bedroom trying to steal a pair of defendant’s underwear. When defendant confronted him and a fight broke out, Pimentel pepper sprayed him. Defendant pushed Pimentel against the wall where the dent was later found. There was a litter box by the wall. Pimentel grabbed a handful of cat litter and threw it in defendant’s eyes, causing him to fall back on the bed. Reaching behind him, defendant grabbed the pipe and swung it at Pimentel.
After defendant’s arrest, police officers searching the apartment found Pimentel’s old cell phone in a drawer in the bedroom, and his silver chain in a pill box in the bedroom closet.
DISCUSSION
I
Sufficiency of the Evidence
Defendant contends that the evidence was insufficient to support his conviction for first degree murder on either a theory of premeditation and deliberation or a theory of felony murder in the commission of robbery. We disagree. The evidence was sufficient on either theory.
We note that defendant asserts without record citation that “the prosecutor placed primary reliance in argument to the jury” on the felony murder theory. Defendant is incorrect. The prosecutor discussed felony murder first, but only because “it’s really the easiest one to break down to understand” (i.e., it required only the findings that defendant robbed Pimentel and killed him in the course of the robbery). The prosecutor gave equal emphasis to both theories.
In reviewing a claim of insufficient evidence, we determine whether, when the evidence and the reasonable inferences from it are viewed most favorably to the judgment, substantial evidence supports the verdict. (People v. Johnson (1980) 26 Cal.3d 557, 578.)
A. Premeditation and deliberation
A murder that is premeditated and deliberate is first degree murder. (§ 189.) “Premeditated” means “considered beforehand,” and “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.” (People v. Mayfield (1997) 14 Cal.4th 668, 767.) An intentional killing is premeditated and deliberate if it is “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. (Mayfield, at p. 767.)
Although reviewing courts typically consider evidence of preexisting motive, planning activity, and manner of killing--the so-called Anderson factors (cf. People v. Anderson (1968) 70 Cal.2d 15, 26-27)--as means of proving premeditation and deliberation, these factors need not be present in any particular combination, nor are they exhaustive. (People v. Stitely, supra, 35 Cal.4th at p. 543; People v. Bolin (1998) 18 Cal.4th 297, 331-332.)
Defendant asserts: “The evidence here supports only a finding of a spontaneous, deadly attack, and they [sic] do not sustain a finding of premeditation and deliberation without resorting to speculation and conjecture. In light of the ‘whole record,’ evidence of premeditation and deliberation is lacking.” He claims that there was no “planning” evidence: “For a man to beat fatally an acquaintance with a pipe, leaving blood and damage all over one’s own bedroom, shows no planning at all.” He also claims that there was no evidence of any motive other than anger, which shows only an “‘unconsidered or rash impulse hastily executed’” (Anderson, supra, 70 Cal.2d at p. 27). Finally, he claims that the nature of the killing, “a violent outburst,” was not sufficiently “particular and exacting” to prove premeditation and deliberation under the Anderson test. We are not persuaded.
Viewed most favorably to the judgment, the evidence showed: (1) Defendant lured Pimentel into his company with a false promise of profit from a drug deal; (2) defendant brought him to the apartment, knowing it would be empty because Dawn J. was at work; (3) defendant took the metal pipe from the car, where it was always kept, and carried it up to the apartment; and (4) defendant then fatally beat Pimentel, an unarmed and much slighter man, by smashing his head in with the pipe. This sequence of events shows a calculated and ruthlessly executed plan of homicide. Even under Anderson, this is sufficient.
We further note that defendant fails to discuss these facts under this heading, except by purporting to “incorporate[] his factual summary from pages 4 through 17” of his opening brief. Instead, defendant says, “[h]e will await respondent’s attempts to identify the evidence that establishes premeditation and deliberation, without resort to ‘speculation’ or ‘conjecture.’” Defendant misunderstands his responsibility on appeal.
When making an insufficient-evidence argument it is the defendant’s burden to identify the strongest evidence in support of the judgment and to explain why that evidence is insufficient. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) An appellant may not simply assert error and challenge the respondent to prove that the trial court was right. (Estate of Palmer (1956) 145 Cal.App.2d 428, 431-432.)
In any event, the fact that defendant left incriminating physical evidence in the apartment does not prove that he had no plan, only that the plan was flawed. Defendant’s claim that his motive was anger is “speculation and conjecture” based only on his own conflicting and uncorroborated stories, whereas the undisputed evidence suggested a different motive--to steal Pimentel’s property; in any event, motive is not needed to prove premeditation and deliberation. Lastly, a killing method which involved bringing a lethal weapon to the scene and using it to strike only at the victim’s head is sufficiently “particular and exacting” to show a “‘preconceived design’” of killing. (Anderson, supra, 70 Cal.2d at p. 27.)
B. Felony murder in the commission of robbery
A murder committed in the perpetration of robbery is first degree felony murder. (§ 189; People v. Cavitt (2004) 33 Cal.4th 187, 197.) Robbery is the felonious taking of personal property from another person or his immediate presence against his will by means of force or fear. (§ 211.) The mental state required for felony murder is the specific intent to commit the underlying felony. (Cavitt, at p. 197.)
For purposes of felony murder, a homicide occurs “in the perpetration of” the felony if both offenses were part of a continuous transaction, regardless of whether there is a strict causal or temporal relationship between the offenses. (People v. Prince (2007) 40 Cal.4th 1179, 1259 (Prince).) Thus, so long as the felony is not merely incidental to the killing or an afterthought to it, the killing may be felony murder even if it did not occur in the midst of the commission of the felony. (Ibid.)
Circumstantial evidence may suffice to support a felony murder/robbery conviction, and specifically to establish the defendant’s intent. (Prince, supra, 40 Cal.4th at p. 1260.)
Viewed most favorably to the judgment, the evidence showed: (1) by enticing Pimentel into his company with the promise of a marijuana transaction, defendant ensured that Pimentel would be carrying the drug on his person; (2) before the murder, defendant also knew that Pimentel was wearing a silver chain and carrying a deactivated cell phone, which (unlike his new phone) could be used by someone else; and (3) the chain and the old cell phone were found on defendant’s premises after the killing, and defendant told his friend Brandon S. that the marijuana they shared that night had come from Pimentel earlier in the day.
From this circumstantial evidence, a reasonable jury could have inferred that defendant killed Pimentel with the specific intent to take those items of property from him. Whether the jury could have inferred instead that defendant took the property only as an afterthought, as he asserts, is irrelevant on appeal. (Prince, supra, 40 Cal.4th at p. 1260.)
II
The Instructions on Murder
As a corollary to his previous argument, defendant contends that there was insufficient evidence to justify instructing the jury on either theory of murder. Having found sufficient evidence to uphold his conviction on either theory, we reject this argument.
III
CALCRIM No. 376
Defendant contends that the trial court’s instruction on possession of recently stolen property “embodied a permissive presumption without any support in logic,” thereby violating the due process clauses. We again disagree.
The trial court instructed the jury pursuant to CALCRIM No. 376 as follows:
“If you conclude that the defendant knew he possessed property, and you conclude that the property had, in fact, been recently stolen, you may not convict the defendant based on those facts alone.
“However, if you also find that supporting evidence tends to prove that the killing took place during the course of a robbery, then you may consider that the evidence is sufficient to prove he committed felony murder. The supporting evidence need only be slight and may not be enough by itself to prove that the defendant was committing a robbery at the time of the killing.
“You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of felony murder. You may also consider whether the defendant gave false, contradictory, or inconsistent statements regarding his possession of stolen property.
“Remember that you may not convict the defendant of felony murder unless you are convinced that each element essential to prove that the defendant committed robbery and that the killing took place during the course of that robbery has been proved beyond a reasonable doubt.” (Italics added.)
The reader should note that we have italicized the passages in which the trial court (1) modified the generic instruction to specify the crime in this case, (2) added the phrase “whether the defendant gave false, contradictory or inconsistent statements regarding his possession of the stolen property” where the generic instruction advises the court to “insert other appropriate factors for consideration,” and (3) substituted the phrase “to prove that the defendant committed robbery and that the killing took place during the course of that robbery” in place of the generic instruction’s phrase “essential to the conclusion that the defendant is guilty of that crime.” (CALCRIM No. 376.)
Defendant acknowledges that CALCRIM No. 376, like its predecessor, CALJIC No. 2.15, has been upheld against due process challenges. (People v. Snyder (2003) 112 Cal.App.4th 1200, 1226 [CALJIC No. 2.15 did not create improper presumption of guilt from mere possession of stolen property or reduce prosecution’s burden of proof]; see also People v. Mendoza (2000) 24 Cal.4th 130, 176-177 [same]; People v. Solorzano (2007) 153 Cal.App.4th 1026, 1035-1036 [CALCRIM No. 376].)
But defendant contends that by improperly modifying the instruction the trial court made it vulnerable to such a challenge. This is so, according to defendant, because (1) the modified instruction told the jury that his possession of stolen property sufficed to prove felony murder/robbery “if corroborated by lies with regard to possession of the property,” but he had the same motive to lie even if he committed only homicide followed by theft; (2) therefore, the instruction allowed the jury to draw “irrelevant and irrational inferences”; and (3) an instruction which does this violates due process under the United States and California Constitutions. Defendant is incorrect.
Contrary to defendant’s assertion, the instruction did not tell the jury that possession of stolen property, “if corroborated by lies with regard to possession of the property,” sufficed to prove felony murder/robbery. It said only that the jury “may also consider whether the defendant gave false, contradictory, or inconsistent statements regarding his possession of the stolen property.” Even if the jury concluded that defendant did so, the instruction also told the jury that it had to find a robbery occurred before it could convict defendant of felony murder in the course of robbery, and did not direct the jury to conclude that if defendant made false statements about the property he must have acquired it by robbery rather than theft. Finally, the instruction reminded the jury that it had to find that each element essential to prove robbery (on which the jury was separately instructed with CALCRIM No. 1600) and the commission of the killing in the course of robbery was proved beyond a reasonable doubt before it could convict defendant of murder on this theory. Thus, the instruction did not direct or invite the jury to draw any irrelevant or irrational inferences and did not violate due process.
IV
Uncharged Acts of Misconduct
The People moved in limine to introduce evidence of three prior uncharged acts by defendant under Evidence Code section 1101, subdivision (b): a 2004 theft, a 2005 assault with deadly weapon, and a 2007 theft. After hearing argument, the trial court admitted only the last. Defendant contends the court prejudicially abused its discretion by doing so. We conclude the evidence was properly admitted, and in any event could not have prejudiced defendant.
According to the People’s motion, in February 2007 defendant was hired by Pimentel’s aunt, Vickie L., on Pimentel’s recommendation, to work at a Chevron station she managed, then stole from the business. After defendant confessed to the theft in writing, Vickie L. agreed not to pursue prosecution of the crime.
The prosecutor argued that this act was relevant under Evidence Code section 1101, subdivision (b) to show that defendant intended to steal in the present case and that he had a motive to “victimize” Pimentel because Pimentel’s aunt had fired him. The prosecutor also noted that she would be called as a material witness in his case-in-chief even if this evidence did not come in.
The trial court ruled that this evidence was material and probative on the issues of “motive, intent to steal, [and] that events occurred that were not an accident.” The court also found under Evidence Code section 352 that the evidence was more probative than prejudicial and would not consume undue time.
Vickie L. testified that she met defendant through Pimentel, who told her that defendant’s girlfriend was pregnant and they needed help. Vickie L. hired him to work as a cashier at the Chevron station on January 22, 2007. However, the first weekend he was alone on the job, the station’s videotape showed him stealing several hundred dollars. She told him she would call the police unless he signed a confession and agreed to pay the money back. He signed the confession.
Evidence of prior uncharged acts is inadmissible to prove the defendant’s bad character, but may be admitted if relevant to prove motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident, among other facts. (Evid. Code, § 1101, subds. (a), (b).) We review the trial court’s evidentiary rulings for abuse of discretion. (People v. Smithey (1999) 20 Cal.4th 936, 970; People v. Crittenden (1994) 9 Cal.4th 83, 132.)
The evidence at issue was plainly relevant to defendant’s intent because that fact was squarely in dispute: according to the People, defendant killed Pimentel with the intent to steal his property, but according to defendant’s out-of-court statements the killing occurred in the course of a fight and defendant had had no prior intent to take anything from Pimentel. Evidence that defendant, when presented with an opportunity to steal six months before the present crime, had taken advantage of that opportunity was highly probative on that issue.
Contrary to defendant’s assertion, the fact that the two crimes were not highly similar is not dispositive. “The least degree of similarity (between the uncharged act and the charged offense) is required to prove intent [rather than identity or common design].” (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).) “In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘“‘probably harbore[ed] the same intent in each instance.’” [Citations.]’ [Citation.]” (Ibid.) Here, the uncharged misconduct was sufficiently similar to the charged offense in that in both instances defendant saw an opportunity to steal from an apparently vulnerable victim (a workplace where he was alone with access to the business’s cash, a significantly smaller person whom defendant knew would be carrying valuable items of property) and acted on the opportunity.
Defendant also asserts that the evidence was inadmissible as to intent because if he committed the alleged acts, his intent in doing so could not reasonably be disputed. (Cf. Ewoldt, supra, 7 Cal.4th at p. 406.) This assertion contradicts defendant’s argument, addressed above in part III, ante, of the Discussion, that the evidence of his possession of Pimentel’s property was consistent either with robbery (with the intent to steal formed in advance) or with theft (with the intent formed only as an afterthought). In other words, defendant himself, on the prior issue, has explained why his intent in coming into possession of Pimentel’s property was reasonably open to dispute. For this reason, the evidence was relevant and admissible.
The trial court also acted within its discretion in finding the evidence relevant to prove motive (a grudge against Pimentel because of his aunt’s action), even though the People did not argue this theory at trial. Based on the People’s showing on the motion in limine, it was plausible that defendant could have had such a motive. In any event, since the evidence was admissible to prove intent to steal, its admission for the additional purpose of proving motive could not have prejudiced defendant.
But even if the evidence should not have been admitted, defendant cannot show prejudice. Aside from his own uncorroborated and conflicting out-of-court statements (which did not even try to explain how he came to possess Pimentel’s property after the killing), all the evidence in the case pointed toward his guilt of first degree murder--the only count he contested even at trial.
V
Custody Credits
Defendant contends that the trial court failed to award custody credits for time served prior to sentencing in this case. The People agree. We shall modify the sentence to award the appropriate credits.
When the trial court imposed sentence in this case, it simultaneously sentenced defendant on two trailing probation violations and awarded custody credit on those trailing matters. However, though the probation report had calculated that defendant was also entitled to 257 days of credit for time served on the present case, from June 28, 2007 through March 10, 2008, the court failed to award those credits.
Defendant points out that after the probation report was submitted, defendant remained in custody until April 9, 2008, when the trial court imposed sentence. Thus, defendant calculates that he is entitled to a total of 286 days of custody credit for the period June 28, 2007 through April 9, 2008. The People do not dispute this calculation.
The failure to award custody credits results in an unauthorized sentence which we may correct on appeal. (People v. Taylor (2004) 119 Cal.App.4th 628, 647.) We shall therefore remand the matter with directions that the trial court correct the abstract of judgment to award defendant 286 days of custody credit for the time served in this case and forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
DISPOSITION
The matter is remanded for further proceedings in light of part V, ante, of the Discussion. In all other respects, the judgment is affirmed.
We concur: RAYE , Acting P. J. BUTZ , J.