Opinion
NOT TO BE PUBLISHED
Superior Court County Super. No. 1292658 of Santa Barbara Brian E. Hill, Judge
Richard C. Gilman, 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, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Sonya Roth, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
A jury found Steven Shane Cisneros guilty of murder of the first degree. (Pen. Code, §§ 187, subd. (a), 189.) The jury also found true the special allegation that he used a deadly weapon. (§ 12022, subd. (b)(1).) The trial court found he suffered a prior strike (§§ 667, subds. (d) & (e)(1), 1170.12, subds. (b)(1) & (c)(1)) and that he had been convicted of a prior serious felony (§ 667, subd. (a)). We affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTS
Cisneros began living at the Lighthouse, a sober living facility, in November 2008. In December 2008, Larry Kaiser came to live at the Lighthouse. Cisneros shared a room with Kaiser and Richard Olivera. The room was across from Donald Chilton's room. Chilton was the Lighthouse's manager.
On the evening of December 10, 2008, Cisneros and Kaiser were watching a sporting event on television. Kaiser asked Cisneros a question about the game. Cisneros walked out of the room without answering. Olivera could not tell whether Cisneros was annoyed with Kaiser or just did not hear him.
The next morning Chilton was walking around the house checking on the residents. He saw Cisneros in the kitchen making breakfast or coffee. Another resident, Robert Williams, saw Cisneros at about 7:00 a.m. that morning. Cisneros appeared upset. Williams saw Cisneros again at about 8:00 a.m. in the living room. Cisneros appeared very upset and seething.
Cisneros went to Chilton's room and asked for a cigarette. Cisneros and Chilton walked to the back porch, smoked their cigarettes and talked. When Cisneros was about half-way finished with his cigarette, he put it out and said, "I gotta get going man."
About a minute after Cisneros left the porch, Chilton heard a "thudding" sound, like someone was getting hit against a bed. Chilton heard Kaiser cry out. Chilton ran into the bedroom and saw Cisneros standing over Kaiser with his fist raised. Kaiser said, "You're killing me." Chilton saw a knife sticking out of Kaiser's shoulder. He recognized the knife as a knife from the Lighthouse kitchen. Kaiser died later in a hospital emergency room.
Chilton told Cisneros to get out of the bedroom. Another resident, Cody Fox, saw Cisneros in the kitchen. Cisneros asked Fox, "What should I do now?" Fox did not want Cisneros near him, so he said, "Get out of here." Cisneros left through the back door and rode away on his bicycle.
Cisneros called Chilton twice in the two days following the incident. The first time Cisneros said, "I'm sorry, I'm sorry." Chilton hung up on him. The second time Cisneros called, Chilton hung up before Cisneros could say anything.
Cisneros was arrested in a park in Camarillo on December 12, 2008.
Kyle Kula testified he was a resident of the Lighthouse in the summer of 2008. He shared a room with Cisneros for the first few days, but did not socialize with him. One evening while Kula was watching television, Cisneros jumped on top of him and choked him into unconsciousness. There was no apparent reason for the attack. Kula regained consciousness when Chilton pulled Cisneros away.
DEFENSE
Cisneros testified on his own behalf. He said on the evening of December 10, 2008, he and Kaiser watched the Lakers' game together. Cisneros became a little irritated that Kaiser kept commenting on the game, so he went outside and smoked a cigarette. He returned, watched the rest of the game and went to bed.
The next morning, Cisneros went to Chilton's room and asked for a cigarette. He and Chilton went to the back porch and smoked. Cisneros smoked half of the cigarette, put it out and went inside. He read a magazine briefly in the living room. Then he went to his bedroom to get ready for work. When Cisneros came into the bedroom, Kaiser lunged at him with a knife. Cisneros got the knife away from Kaiser. Kaiser lunged at him again, and Cisneros stabbed Kaiser. Cisneros was in fear for his own life. Chilton came in and told Cisneros to leave. Cisneros got on his bike and left. He called another resident, Gary Young, and told him of his location in Camarillo. He did not try to run from the police when they arrested him.
REBUTTAL
Nicholas Leprohon, James Kinderer, and Austin Sper met Cisneros in the park on December 12, 2008. Cisneros told them he murdered a man in Santa Barbara. The man was his roommate. He said the man had been threatening him throughout the week. He thought the man was going to hurt him. After an argument, the man was in his room changing. Cisneros said he picked up a knife that had been lying on the man's bed, and stabbed him in the back of the neck. The boys called their youth pastor who called the police.
DISCUSSION
I
Cisneros contends there is no substantial evidence to support a finding of first degree murder.
In reviewing the sufficiency of the evidence, we view the evidence in a light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 578.) We discard evidence that does not support the judgment as having been rejected by the trier of fact for lack of sufficient verity. (People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.) We have no power on appeal to reweigh the evidence or judge the credibility of witnesses. (People v. Stewart (2000) 77 Cal.App.4th 785, 790.) We must affirm if we determine that any rational trier of fact could find the elements of the crime beyond a reasonable doubt. (Johnson, at p. 578.)
A murder that is "willful, deliberate and premeditated" is murder of the first degree. (§ 189.) In People v. Anderson (1968) 70 Cal.2d 15, 26-27, our Supreme Court surveyed a number of prior cases involving the sufficiency of evidence to support findings of deliberation and premeditation. The court identified three categories of evidence that could support such findings: (1) planning activity, (2) motive, and (3) manner of killing. (Ibid.) The court stated: "Analysis of the cases will show that this court sustains verdicts of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3)." (Id. at p. 27.)
Here Cisneros was seen in the kitchen approximately an hour before the stabbing. The knife he stabbed Kaiser with came from the kitchen. There was no legitimate reason for the knife to be in the bedroom. The jury could conclude Cisneros obtained the knife from the kitchen and carried it to the bedroom for the purpose of stabbing Kaiser. Thus there was evidence of planning.
There was also evidence of motive. Witnesses who saw Cisneros shortly before the stabbing testified he appeared to be very upset and seething. Cisneros admitted that on the night before the stabbing he became annoyed with Kaiser for commenting during the Lakers' game. The jury could reasonably conclude Cisneros stabbed Kaiser because he found him annoying.
Substantial evidence of planning and motive supports the jury's finding of first degree murder.
II
Cisneros contends evidence of the unprovoked attack on Kula should have been excluded under Evidence Code section 1101.
Evidence Code section 1101, subdivision (a) provides evidence of a person's character or a trait of character is inadmissible when offered to prove his or her conduct on a specific occasion. Subdivision (b) of the section provides: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit an act."
The trial court instructed the jury the evidence of the uncharged conduct could only be considered for two limited purposes: whether the defendant acted with the intent to kill, and whether the defendant acted in self-defense.
Cisneros concedes the evidence has some relevance to his claim of self-defense. He argues, however, that it has no relevance to the intent to kill. But Cisneros choked Kula into unconsciousness and had to be pulled away by Chilton. The jury could reasonably conclude the evidence shows a willingness to kill. That is relevant to prove an intent to kill.
Cisneros argues the evidence is more prejudicial than probative. The court has the discretion to exclude evidence if its probative value is substantially outweighed by the probability its admission will create a substantial danger of undue prejudice. (Evid. Code, § 352.) Substantial prejudicial effect is inherent in evidence of uncharged offenses. (People v. Ewoldt (1994) 7 Cal.4th 380, 404.) Uncharged offenses are admissible only if they have substantial probative value. (Ibid.)
Cisneros claims that the intent to kill is evident from the facts of the instant crime. Assuming that to be so, the uncharged offense evidence is highly probative on the question of self-defense. The trial court did not abuse its discretion in admitting evidence of the uncharged offense.
III
Cisneros contends the judgment must be reversed because verdict forms given to the jury mistakenly advised the jury of the existence of a prior offense.
One of the verdict forms submitted to the jury asked it to make a finding whether Cisneros had a prior conviction for assault with a deadly weapon with a great bodily injury enhancement. This was error because trial on the prior strike allegation was bifurcated from the substantive charge. Cisneros concedes the error was inadvertent.
When the jury is inadvertently exposed to matter not in evidence, it is similar to evidence that had been proffered at trial and to which a valid objection had been erroneously overruled. (People v. Gamache (2010) 48 Cal.4th 347, 396-397.) The question is whether it is reasonably probable the verdict would have been the same absent exposure to the matter. (Ibid.)
Here the trial court polled the jury asking each juror whether he or she was "in any way whatsoever influenced" by exposure to the prior conviction allegation. Each juror answered no. The foreman represented to the trial court that the jury had reached its verdict before exposure to the improper verdict form. The error was harmless.
Cisneros argues the error was cumulative with the error in admitting evidence of the uncharged offense against Kula. Admitting evidence of the uncharged offense against Kula was not error. But because the improper verdict form was the only error, it cannot be cumulative.
The judgment is affirmed.
We concur: COFFEE, J. PERREN, J.