Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF05-424
DAVIS, J.
A jury convicted defendant Hershel Wayne Casto of first degree murder (Pen. Code, §§ 187, subd. (a), 189); and sustained enhancements for personally using a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)), and personally discharging a firearm (§ 12022.53, subds. (c) & (d)). The trial court sentenced defendant to a prison term of 50 years to life: 25 years to life for first degree murder plus 25 years for the section 12022.53, subdivision (d) enhancement.
Hereafter, undesignated section references are to the Penal Code.
On appeal, defendant contends there is insufficient evidence of premeditation to support his conviction for first degree murder; the trial court erroneously refused to give defendant’s requested instruction on the legal effect of antecedent threats by the victim; and various unauthorized enhancements should be stricken. We shall affirm the judgment.
Background
On June 21, 2005, Chris Fitzer, a drug dealer, went to an apartment shared by defendant and Tom G. in Yuba County. According to Vanessa M., Fitzer’s girlfriend, defendant and Fitzer had met the night before. On June 21, before Fitzer went to defendant’s apartment, Vanessa heard Fitzer on his cell phone telling defendant he did not want to go to defendant’s apartment and asking if defendant would please come to Fitzer’s apartment.
After Fitzer’s conversation with defendant, Vanessa saw Fitzer go to Vanessa’s car and get a belt knife. She believed defendant, who was a friend of Fitzer’s, owed him $100. Fitzer did not own a gun.
Around 9:00 p.m. on June 21, 2005, Juan Carlos M. was in defendant’s apartment with Tom, defendant, Jessica D. and Trina C. He later went downstairs and ran into Fitzer, who asked if there was any “money upstairs.” Juan Carlos told Fitzer, “‘I know they want to talk to you upstairs.’” Juan Carlos saw Fitzer go up the stairs to the apartment carrying a black pocket knife that was about three and a half to four inches long. He did not see a gun in Fitzer’s hand.
When Fitzer arrived at the apartment, Tom, defendant, Trina, and Jessica were all present. Defendant entered Tom’s bedroom and took the sawed-off shotgun Tom kept behind his mattress.
Defendant entered the living room while Tom remained in the bedroom. After hearing loud arguing, Tom went to the living room, where he saw defendant pointing a shotgun at Fitzer and Fitzer pointing a handgun at defendant. Tom went back into his bedroom, thought about the matter, and returned to the living room one to two minutes later. At this point, defendant was still pointing the shotgun at Fitzer, but it now appeared that Fitzer no longer had a weapon in his hand and his hands were at his side.
Tom exclaimed to defendant, “‘What are you doing? You guys crazy or what?’” and told defendant to put the gun down. About 30 seconds later, defendant shot Fitzer in the side of the head with the shotgun, killing him. A minute or two passed; Tom recalled someone saying, “Let’s get out of here,” and defendant left with Trina and Jessica.
Tom never found the handgun he thought he saw in Fitzer’s possession. At the preliminary hearing, Tom did not mention seeing Fitzer carry a weapon during the incident. He also did not tell the police about Fitzer’s alleged firearm when interviewed.
Vanessa ran to defendant’s apartment when she heard the shot fired. A man named Eddie also went to the apartment. Neither of them picked up a weapon before leaving defendant’s apartment. Vanessa’s friend Ashley also came up the stairs; she testified that neither she nor Vanessa carried a weapon from defendant’s apartment.
Juan Carlos walked back up to the apartment some time after Fitzer went there. He knocked on the door and heard a loud boom, followed by the door opening as defendant, Jessica and Trina ran of the apartment. Two people came up the stairs behind him and ran into the apartment. Tom, who was in the apartment, came out and said, “‘He’s dead. He got shot in the head.”
Trina is defendant’s wife; the two were married on December 4, 2005. Trina was in the kitchen area of the apartment when she heard Fitzer tell defendant he was going to “shank” him. After Fitzer made the threat, Trina walked into the living room, where she saw defendant with a gun and Fitzer with a knife.
Trina heard defendant twice tell Fitzer to leave. She heard a knock on the door and went to see who it was. She looked through the peephole and recognized Juan Carlos. Trina did not open the door. She went back into the kitchen and heard a shot. After Fitzer was shot, Trina left the apartment with Jessica.
The trial court found that Jessica was unavailable to testify as she could not be located, so the transcript of her preliminary hearing testimony was read to the jury.
Jessica arrived at defendant’s apartment approximately 20 minutes before she saw defendant with the shotgun. When she got there, she got “high” on methamphetamine. Fitzer came to the door and Jessica let him in. Fitzer sat on the couch on which defendant was sitting. After defendant asked Fitzer where the dope was, Fitzer got a knife from his belt and swung it at defendant in a backhand motion. Fitzer was yelling at defendant, but defendant did not yell back at him.
According to Jessica, defendant stood up and grabbed a shotgun from a cushion under the couch and pointed the weapon at Fitzer. Defendant pulled the trigger as Jessica gathered up her belongings to leave. She believed defendant told Fitzer to go home before he fired the shotgun, and thought the two were arguing over drugs. Jessica told a detective that she saw defendant put the shotgun under his shirt after it was fired.
A sergeant from the Yuba County Sheriff’s Department subsequently found a knife in Fitzer’s pants pocket. The knife was in a closed position in Fitzer’s left hand. The sergeant also found a plastic bag containing a white powdery substance in Fitzer’s pocket and a live shotgun shell on the apartment floor.
According to the forensic pathologist, Fitzer had shotgun wounds on the surface of the back of his right hand, centered over the third knuckle, and in the area of his right eye. Pellets went through Fitzer’s eye and into his brain, killing him. Fitzer’s hand was three to four feet away from the shotgun when it was fired, extended directly toward the muzzle of the gun.
A forensic pathologist for San Joaquin and Stanislaus Counties testified as a defense witness. He testified that the position of Fitzer’s hand could be consistent with him reaching for the gun or trying to bat the gun away; “there [were] many possibilities.” The shooter aimed the shotgun at the face of the victim, and the blast traveled in a straight line, so the shooter hit his target. There was no way to tell the shooter’s intent from the nature of Fitzer’s wounds.
Discussion
I
Defendant contends his conviction must be reduced to second degree murder because there was insufficient evidence of premeditation and deliberation to support the verdict of first degree murder. We disagree.
“Review on appeal of the sufficiency of the evidence supporting the finding of premeditated and deliberate murder involves consideration of the evidence presented and all logical inferences from that evidence in light of the legal definition of premeditation and deliberation . . . . Settled principles of appellate review require us to review the entire 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--from which a reasonable trier of fact could find that the defendant premeditated and deliberated beyond a reasonable doubt. [Citations.]” (People v. Perez (1992) 2 Cal.4th 1117, 1124.)
In the context of first degree murder, “‘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.’ [Citation.] The process of premeditation and deliberation does not require any extended period of time. ‘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 . . . .’ [ Citations.]” (People v. Mayfield (1997) 14 Cal.4th 668, 767 (Mayfield).)
Premeditation and deliberation require more than the reflection necessary to form the specific intent to kill. (People v. Anderson (1968) 70 Cal.2d 15, 26 (Anderson).) However, to establish this mental state, it is not “necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act.” (§ 189, 4th par.) “The act of planning--involving deliberation and premeditation--requires nothing more than a ‘successive thought[] of the mind.’ [Citations.]” (People v. San Nicolas (2004) 34 Cal.4th 614, 658.)
In Anderson, the Supreme Court identified three categories of evidence that have been found sufficient to sustain a finding of premeditation and deliberation: (1) facts showing planning activity; (2) facts suggesting motive; and (3) facts about the manner of killing that suggest a “‘preconceived design.’” (Anderson, supra, 70 Cal.2d at pp. 26-27.) “[I]t is not necessary that the Anderson ‘factors be present in some special combination or that they be accorded a particular weight.’ [Citation.]” (People v. Sanchez (1995) 12 Cal.4th 1, 33.) These categories are intended to provide guidance for appellate review and are not prerequisites to establishing premeditation and deliberation. (Mayfield, supra, 14 Cal.4th at p. 768.)
There is substantial evidence of planning. The evidence suggests one of two scenarios after defendant’s initial confrontation with Fitzer. He either went to Tom’s room to get the shotgun and returned with the weapon to the living room, or he removed the shotgun from under a cushion of the living room couch. Both actions support premeditation--either a conscious decision to arm himself or a conscious decision to place a concealed weapon in the couch during his encounter with Fitzer--and each constitutes planning activity. (People v. Wharton (1991) 53 Cal.3d 522, 547.)
Although Fitzer and defendant appeared to have been friends, the evidence shows their meeting on June 21 was commercial rather than social. Fitzer sold drugs. He told his girlfriend that defendant owed him $100, asked Juan Carlos whether there was money in defendant’s apartment, and according to Jessica, argued with defendant over drugs prior to his death.
Fitzer did not want to meet at defendant’s apartment. He preferred meeting at his own place, a prescient idea considering what happened to him in defendant’s apartment. Viewed in this context, Fitzer’s decision to take the knife to the meeting is evidence of his belief that the meeting would not be friendly. Taken together, these facts support a finding that an argument over a drug debt provided defendant with motive to kill Fitzer.
The manner of the killing also supports the verdict. Although Fitzer may have threatened defendant with a knife before the shooting, according to Tom’s testimony, Fitzer was unarmed with his hands at his sides when he was murdered. Defendant had the gun aimed at Fitzer for one to two minutes and had been told by Tom to put the weapon down. Having time to consider his actions, defendant aimed at Fitzer’s head and successfully hit Fitzer with a shotgun at close range, killing him.
From all the evidence, it was not unreasonable for the jury to infer that defendant actually premeditated and deliberated Fitzer’s murder.
II
Defendant requested that the trial court provide the jury with an instruction on antecedent threats (CALJIC No. 5.50.1). He contends on appeal that his conviction must be reversed because the trial court refused the requested instruction. He is mistaken.
All references in this opinion to CALJIC are to the January 2005 edition of California Jury Instructions, Criminal (revised & renumbered as Judicial Council of Cal. Crim. Jury Instns. (Jan. 2006)).
A homicide defendant who asserts self-defense is entitled, upon request, to a pinpoint instruction on antecedent threats or antecedent assaults by the victim or third parties associated with the victim if there is evidence in the record to support such an instruction. (See, e.g., People v. Gonzales (1992) 8 Cal.App.4th 1658, 1663-1664; People v. Pena (1984) 151 Cal.App.3d 462, 475 (Pena).)
Defendant contends the alleged actions by Fitzer before defendant retrieved the shotgun constituted antecedent threats supporting the refused instruction. The cases establishing the right to a pinpoint instruction regarding antecedent threats or assaults involve prior threats or assaults made on occasions before, and separate from, the events underlying the charged offense. (See, e.g., Pena, supra, 151 Cal.App.3d at pp. 476-477 [distinguishing between antecedent threats made by the victim on prior occasions and events actually perceived by the defendant immediately before the shooting].) A pinpoint instruction may be necessary or helpful in such circumstances to assist the jury in evaluating the significance of otherwise unrelated events in the past, and the effect these past events had on the reasonableness of the defendant’s response to the victim’s present conduct.
However, the same reasoning does not logically apply to the victim’s alleged threats to defendant, which constituted an integral part of the events just preceding the fatal shooting. In a homicide case where a defendant claims self-defense based on threatening conduct by a victim, at most a few minutes before the killing, jurors do not need a special pinpoint instruction to understand the significance of the victim’s assaultive conduct immediately prior to the killing. The standard CALJIC self-defense and unreasonable self-defense instructions, which were given to the jury in this case, were sufficient to cover the topic. (See CALJIC Nos. 5.12, 5.15, 5.17, 5.30, 5.50-5.53.)
III
Defendant was convicted of one count first degree murder, and the jury sustained four enhancement allegations--two for personally using a firearm under sections 12022.5, subdivision (a) and 12022.53, subdivision (b), and two for personally discharging a firearm under section 12022.53, subdivisions (c) and (d). The court imposed a 25-year term for the section 12022.53, subdivision (d), enhancement and stayed sentence on the three other enhancements.
Defendant contends the trial court should have stricken rather than stayed the three enhancements. We disagree, as the Supreme Court has decided the issue contrary to defendant’s contention.
Section 12022.53, subdivision (f), provides: “Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment. An enhancement involving a firearm specified in Section . . . 12022.5, . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to this section.”
Subdivision (h) of section 12022.53 provides: “Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.” Section 12022.5, subdivision (c) contains an identical provision.
These provisions were recently harmonized by the Supreme Court in People v. Gonzalez (2008) 43 Cal.4th 1118. Construing section 12022.53, subdivision (f) in context and keeping in mind the legislative intent behind the statutory scheme, the Supreme Court concluded “the construction which best serves to harmonize the statute internally is the construction that interprets the words ‘impose’ and ‘imposed,’ as used throughout subdivision (f), as shorthand to mean impose and then execute, as opposed to impose and then stay.” (Id. at p. 1126.)
It explained that “[i]f subdivision (f) is so interpreted, it directs that only one enhancement may be imposed and then executed per person for each crime, and allows a trial court to impose and then stay all other prohibited enhancements.” (Gonzalez, supra, 43 Cal.4th at p. 1127.) The court pointed out a contrary interpretation would make it “more difficult, if not impossible, to impose and execute the term of imprisonment for an initially prohibited firearm enhancement in the event the section 12022.53 enhancement with the longest term of imprisonment is invalidated on appeal.” (Id. at p. 1128.) An interpretation requiring the sentencing court to stay rather than strike the prohibited firearm enhancements serves the legislative goals of section 12022.53, that is, “to ensure that defendants who use a gun remain in prison for the longest time possible.” (Id. at p. 1129.)
The Supreme Court concluded that “section 12022.53 “requires that, after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime must be imposed and then stayed.” (Gonzalez, supra, 43 Cal.4th at p. 1130.) Applying Gonzalez, we hold that the trial court properly stayed the remaining section 12022.5 and 12022.53 enhancements.
Disposition
The judgment is affirmed.
We concur: SIMS, Acting P. J., RAYE, J.
At the time of trial, CALJIC No. 5.50.1 stated:
“Evidence has been presented that on [a] prior occasion[s] the alleged victim [threatened] [or] [assaulted] [or participated in an assault or threat of physical harm upon] the defendant. If you find that this evidence is true, you may consider that evidence on the issues of whether the defendant actually and reasonably believed [his] [her] life or physical safety was endangered at the time of the commission of the alleged crime.
“In addition, a person whose life or safety has been previously threatened, or assaulted by [another] [others] is justified in acting more quickly and taking harsher measures for self protection from an assault by [that person] [those persons], than would a person who had not received threats from or previously been assaulted by the same person [or persons].”