Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF121365, Michele D. Levine, Judge.
Richard Power, 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, Senior Assistant Attorney General, David Delgado-Rucci, and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P.J.
A jury found defendant guilty of attempted first degree murder (Pen. Code, §§ 664, 187, subd. (a)) (count 1); assault with a deadly weapon likely to produce great bodily injury (§ 245, subd. (a)(1)) (count 2); and first degree burglary (§ 459) (count 3). The jury also found true that defendant had personally used a weapon and inflicted great bodily injury in the commission of the attempted murder. (§§ 12022.7, subd. (a), 12022, subd. (b)(1).) The trial court subsequently found true that defendant had sustained two prior prison terms (§ 667.5, subd. (b)) and two prior serious felony convictions (§ 667, subd. (a)). Defendant was sentenced to a total term of 33 years to life in state prison as follows: eight years for the burglary (count 3), 14 years to life for the attempted murder (count 1), three years for the enhancement for great bodily injury, one year for the weapon enhancement, two 1-year terms for the prison priors, and five years for the prior serious felony. Sentence on count 2 was stayed pursuant to section 654.
All future statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant contends (1) the abstract of judgment should be corrected to reflect that the court imposed a sentence of five years pursuant to section 667, subdivision (a), rather than section 667.5, subdivision (b); (2) there was insufficient evidence to support his conviction for attempted murder; and (3) the sentence imposed on count 3 should have been stayed pursuant to section 654. We agree with the parties that the abstract of judgment must be modified and that defendant’s sentence on count 3 must be stayed. However, we reject defendant’s remaining contention and affirm the judgment.
I
FACTUAL BACKGROUND
On January 10, 2005, around 11:30 p.m., Andrew Laird, who lived in an apartment in Moreno Valley, was getting ready to go to bed when he heard a knock at his front door. Startled by the aggressive sound of the knock and not expecting anyone at that hour, Laird jumped up from his couch, grabbed a pocketknife, and looked through the peephole. Laird saw defendant, whom he did not recognize, standing outside the door.
Laird, holding the knife in his hand behind the door, opened the door, and asked defendant, “What’s up?” Defendant asked Laird if he was selling “weed,” meaning marijuana. Laird said, “No, . . . you [have] the wrong apartment.” Defendant then asked Laird, “Aren’t you going out with that girl Tina [Laird’s estranged wife]?” Before Laird could answer, defendant knocked open the door and punched Laird on the left side of his face. At that point, Laird did not see any weapon carried by defendant, he just thought defendant was going to punch him and “kick [his] ass.” Laird was thrown back by defendant’s punch, but he managed to hold on to his knife.
Laird acknowledged that he personally used marijuana and methamphetamine.
As defendant came back at Laird, Laird saw defendant’s knife. To avoid getting stabbed in the chest, Laird turned his body, and defendant stabbed Laird in the shoulder. The blade broke off in Laird’s shoulder. Defendant continued to beat Laird. Laird believed defendant was going to kill him, so he stabbed defendant in self-defense. Defendant then ran out the front door.
After defendant left, Laird shut his front door, locked it, and called 911. Laird later discovered that defendant had “sliced” him from the backside of his neck to the front of his face. As a result, part of Laird’s earlobe was cut off, his face was cut, and he received numerous stitches.
Laird testified that he never pulled his knife on defendant, tried to stab defendant, or threatened to stab defendant before defendant stabbed him. Laird had never met defendant until defendant came to his door that day. Laird stated that he acted in self-defense to save his own life.
Laird’s neighbor, Manuela Ybarra, testified that she had been asleep but was awakened by someone outside banging and pounding on a door and yelling for Laird to open his door. She recalled that the person, a man, was angry and heard him say, “Open up the door. Don’t be scared.” The man banged on the door four times. Ybarra was scared and afraid something was going to happen. The man sounded like “he was really, really upset.” Ybarra then heard what sounded like the door hitting the wall then heard a struggle inside Laird’s apartment and a sound as if something had fallen. Eventually, Ybarra heard an officer knock on the door.
Riverside County Sheriff’s Deputy David Drexler responded to the scene. Deputy Drexler waited for backup before entering Laird’s apartment. He was familiar with Laird from prior calls at a different location. From the doorway, Deputy Drexler saw Laird standing in the bathtub inside the bathroom. Laird was covered in blood from head to toe. Deputy Drexler called for medical assistance and asked Laird what had happened. Laird’s story to the deputy that night was similar to his trial testimony. Laird also told Deputy Drexler that he had no idea who defendant was but thought his wife Tina was involved. Laird gave Deputy Drexler information about Tina’s whereabouts and Tina’s car. Shortly thereafter, defendant was located inside Tina’s van during a traffic stop.
Laird’s neighbor Shannon MacKenzie recalled that on the night of the incident he heard someone yelling outside around 11:30 p.m. A woman (later identified as Tina) was yelling at a man (later identified as defendant) and telling him, “Don’t go over there. Come back.” Defendant appeared to be agitated. MacKenzie later saw defendant leave and heard him moaning and groaning, hunched over holding his stomach or chest. MacKenzie also heard defendant twice tell Tina, “I tried to stab him. It bent in, [but] [i]t’s done.” Moments later, Tina and defendant left.
Tina stated that she and Laird were separated in September 2004. She lived down the street from Laird. Tina was upset that Laird constantly called her. Two weeks prior to the incident, Tina met defendant. On the day of the incident, between 5:00 and 5:30 p.m., defendant called Tina, and she told him that she was upset because Laird was harassing her and calling her excessively. Defendant asked Tina if she wanted him to come over. Defendant arrived around 8:00 p.m., and the two began drinking. Defendant asked if she wanted him to go over to Laird’s to talk to him. Tina said no, but that she was going to get a restraining order against Laird. Tina claimed that defendant knew Laird was her ex-husband. She did not remember a shouting match in front of Laird’s apartment or telling defendant how to get to Laird’s apartment, but she acknowledged that he would not have known how to get there unless she had told him.
Tina did not recall defendant leaving her apartment that night but remembered being awakened by someone pounding on her front door. When she opened the door, she saw defendant standing outside. She did not expect defendant but let him inside, and he used her bathroom. After defendant exited her bathroom, Tina saw blood dripping down his chest and decided to take him to the hospital. As Tina drove defendant to the hospital, she was pulled over and arrested for driving under the influence.
Defendant testified on his own behalf and confirmed that he went to Tina’s apartment around 8:00 p.m. The two began drinking rum and Coca Cola and talked about getting some marijuana. Tina knew where to buy some marijuana and drove them to the location without mentioning any names. When they reached their destination, Tina told defendant which apartment to go to, but he did not know that Tina directed him to Laird’s apartment; he just thought he was going to the home of a drug dealer. Defendant knocked on the door, and Laird, whom he did not know at the time, opened the door. Defendant claimed that he saw Laird holding a knife. He told Laird his name and said, “Don’t be scared,” and “I’m a friend of Tina’s.” Defendant told Laird that Tina had told him that he would be able to buy some marijuana from Laird. Defendant claimed that Laird then stated, “You’re the one who’s fucking my old lady.” Defendant was taken aback by the comment since he did not know Laird was Tina’s ex-husband. Defendant stated that Laird then stabbed him in the chest while he (defendant) was standing on the threshold. Defendant admitted that he then forcibly pushed Laird back through the doorway into the apartment, retrieved his folding pocketknife, and followed him inside the apartment. Once inside, he unfolded his knife and armed himself after he was stabbed.
II
DISCUSSION
A. Abstract of Judgment
Defendant contends, and the People correctly concede, the abstract of judgment should be corrected to reflect that the trial court imposed a sentence of five years pursuant to section 667, subdivision (a), rather than section 667.5, subdivision (b). We also agree. We will order the abstract of judgment be modified accordingly.
B. Sufficiency of the Evidence
Defendant contends there was insufficient evidence to sustain his conviction for attempted murder. We disagree.
Our review of any claim of insufficiency of the evidence is limited. It is well settled that when a defendant challenges the sufficiency of the evidence, the reviewing court must examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence from which the jury could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576-577.) Substantial evidence—meaning, evidence that is reasonable, credible and of solid value—must support each essential element of an offense. (Id. at p. 576.) A judgment of conviction will not be set aside for insufficiency of the evidence to support the jury’s verdict unless it is clearly shown there is no basis on which the evidence can support the jury’s conclusion. (Ibid.; see also People v. Rodriguez (1999) 20 Cal.4th 1, 11) If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (Jackson v. Virginia (1979) 443 U.S. 307, 319, 326; People v. Davis (1995) 10 Cal.4th 463, 509.)
In determining whether substantial evidence exists, we do not reweigh the evidence, resolve conflicts in the evidence or reevaluate the credibility of witnesses. (People v. Jones (1990) 51 Cal.3d 294, 314 (Jones); see also People v. Hale (1999) 75 Cal.App.4th 94, 105; People v. Cortes (1999) 71 Cal.App.4th 62, 71.) “Although it is the duty of the [trier of fact] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [trier of fact], not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.”’” (People v. Bean (1988) 46 Cal.3d 919, 932-933.) In other words, “[r]esolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact.” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “We cannot reject the testimony of a witness that the trier of fact chooses to believe unless the testimony is physically impossible or its falsity is apparent without resorting to inferences or deductions. As part of its task, the trier of fact may believe and accept as true only part of a witness’s testimony and disregard the rest. On appeal, we must accept that part of the testimony which supports the judgment.” (In re Daniel G. (2004) 120 Cal.App.4th 824, 830.) The standard of review applies even “when the conviction rests primarily on circumstantial evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
A conviction for attempted murder “requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. [Citations.]” (People v. Lee (2003) 31 Cal.4th 613, 623.) Defendant does not dispute that he stabbed Laird, but instead claims the evidence was insufficient to show that he had an intent to kill, noting that he did not “attack . . . a vital area of [Laird’s] body such as the heart” but rather his face and shoulder area. The mental state required for attempted murder is express malice. (People v. Smith (2005) 37 Cal.4th 733, 739 (Smith).) “Intent to unlawfully kill and express malice are, in essence, ‘one and the same.’” (Ibid., quoting People v. Saille (1991) 54 Cal.3d 1103, 1114.) “Malice is express when the killer harbors a deliberate intent to unlawfully take away a human life.” (People v. Lasko (2000) 23 Cal.4th 101, 104.) “Express malice requires a showing that the assailant ‘“‘either desire[s] the result [i.e., death] or know[s], to a substantial certainty, that the result will occur.’ [Citation.]”’ [Citation.]” (Smith, at p. 739.) “Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense.” (People v. Pre (2004) 117 Cal.App.4th 413, 420.) For example, a defendant’s use of a lethal weapon is often probative of intent to kill. (Smith, at p. 741.)
Our review of the record discloses sufficient, credible evidence from which the jury could reasonably conclude defendant attempted to kill Laird; or, in other words, he specifically intended to kill Laird. Defendant attacked Laird at close range with a knife. Most significantly, the evidence demonstrated defendant used a lethal weapon and attempted to stab Laird in the chest area but Laird turned his body and defendant ended up stabbing Laird in the shoulder. A specific intent to kill can be inferred from the fact that an assailant used a deadly weapon, such as a knife, and targeted a vital area of the victim’s body. (See, e.g., People v. Bolden (2002) 29 Cal.4th 515, 561 [stating that “[i]n plunging the knife so deeply into such a vital area of the body of an apparently unsuspecting and defenseless victim, defendant could have had no other intent than to kill”].)
We reject defendant’s contention that the absence of an attempt by defendant to inflict a mortal wound, such as a stab at the heart, neck, or abdominal area, demonstrated a lack of intent to kill. We are equally unconvinced by defendant’s contention the evidence of a specific intent to kill is lacking because he “simply gave up his non-lethal attack and fled.” The jury found that defendant personally used a knife and inflicted great bodily injury on the victim in the commission of the attempted murder. The fact defendant missed a vital organ when Laird turned his body does not necessarily establish a less culpable state of mind. (Smith, supra, 37 Cal.4th at p. 741.) Nor does circumstances that defendant “abandoned his efforts [i.e., “simply gave up”] . . . compel the conclusion that he lacked the animus to kill in the first instance.” (Ibid.) By immediately leaving the scene to avoid detection, defendant demonstrated consciousness of guilt by his flight. (People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1437.)
For the reasons outlined above, and viewing the evidence in the light most favorable to the judgment, we find there was an abundance of circumstantial evidence of defendant’s intent to kill Laird.
C. Section 654
The trial court imposed consecutive terms for the burglary conviction in count 3 and the attempted murder conviction in count 1. The trial court reasoned, “the act of committing a first degree burglary is separate and apart and carries a separate intent from that which goes towards the intent in committing . . . attempt[ed] murder. Therefore, the Court finds that it is not precluded under [section] 654 of multiple punishment for the same criminal act, and instead finds that these are separate acts with separate intentions.”
Defendant claims that the court’s imposition of a consecutive sentence on count 3 was prohibited under section 654 because the “burglary was the means of committing attempted murder.” In other words, defendant contends he committed the attempted murder and the burglary with a single intent and objective, to kill Laird, during one indivisible transaction, and therefore the sentence for the burglary conviction should have been stayed pursuant to section 654. The People correctly concede that defendant’s sentence for the burglary should have been stayed. Under the circumstances of this case, we also agree.
Section 654, subdivision (a) provides in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” Section 654 precludes multiple punishments not only for a single act, but for an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294.) Whether a course of conduct is divisible, and therefore gives rise to more than one act within the meaning of section 654, depends on the intent and objective of the actor. (People v. Norrell (1996) 13 Cal.4th 1, 6.) The Supreme Court has long applied section 654 to preclude multiple punishment where multiple acts, or offenses, were committed incident to a single intent and objective. (People v. Gaio (2000) 81 Cal.App.4th 919, 935.)
The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless it is not supported by substantial evidence. (People v. Saffle (1992) 4 Cal.App.4th 434, 438, cited and approved on this point in People v. Osband (1996) 13 Cal.4th 622, 730.) The court’s findings may be either express or implied from the court’s ruling. (People v. McCoy (1992) 9 Cal.App.4th 1578, 1585.) One relevant consideration in determining whether multiple crimes should be considered severable for section 654 purposes is the “‘temporal proximity’” of the crimes. (People v. Evers (1992) 10 Cal.App.4th 588, 603, fn. 10.)
It appears that the only objective defendant had when he entered Laird’s apartment was to try and kill Laird. (See People v. James (1977) 19 Cal.3d 99, 119-120 [burglary for committing robbery]; People v. Radil (1977) 76 Cal.App.3d 702, 713 [burglary for purpose of committing an assault].) The record also shows that the jury was instructed that when defendant entered the building, he did so to commit attempted murder or assault with a deadly weapon. Consequently, defendant’s sentence on count 3 should have been stayed.
III
DISPOSITION
The judgment is modified to reflect that defendant’s sentence on count 3 (burglary) is stayed pursuant to section 654. The trial court is directed to prepare a new abstract of judgment to reflect the modified sentence and to note that the trial court imposed a sentence of five years pursuant to section 667, subdivision (a), rather than section 667.5, subdivision (b) and to forward the abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: KING, J., MILLER, J.