Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. CH40114
Reardon, J.
Geraldo Salinas died as the result of multiple stab wounds. A jury found appellant Luis Rene DeLeon guilty of the second degree murder of Salinas and found true an allegation that DeLeon used a knife during the commission of the offense. (See Pen Code, §§ 187, subd. (a), 189, 12022, subd. (b)(1).) The trial court denied his motions for new trial and to reduce his conviction to manslaughter. DeLeon was sentenced to state prison for an indeterminate term of 15 years to life with the possibility of parole. On appeal, he contends that there was insufficient evidence of malice necessary to support the second degree murder conviction, requiring that we reduce his conviction to voluntary manslaughter. We affirm the judgment.
All statutory references are to the Penal Code.
I. FACTS
On the evening of November 26, 2007, Geraldo (“Jerry”) Salinas celebrated his 21st birthday at a party at his new apartment in San Leandro. Many of Salinas’s family members—including his 70-year-old mother, several of his siblings and as many as a dozen nieces and nephews—attended. Some of his friends were there, too, including his girlfriend Melissa Volau.
For clarity, the opinion refers to some persons who share the same last name by their first names. References to “Salinas” are to the decedent, Geraldo Salinas.
The barbeque had been fired up—dinner, birthday cake and alcohol were served. Some guests were watching a movie with the children or dancing. Salinas started drinking beer, talking to his guests. He had some hard liquor, too.
Salinas’s roommate Jenny Acuna joined the party about 7:00 p.m., along with her 11-year-old half-brother Christopher, and her stepsisters Kemberley Flores and Ulissa Flores. Kemberley’s boyfriend—22-year-old appellant Luis DeLeon—and Ulissa’s boyfriend Adelson Guerrero were also with them. When they arrived, Jenny and her crowd went directly to the kitchen. Many of them began drinking hard alcohol that they found there—DeLeon, Ulissa, Kemberley and Guerrero were all drinking hard liquor. DeLeon was drinking a lot of it.
DeLeon’s blood-alcohol level was 0.17 when it was tested shortly before midnight.
Some friction arose between Jenny’s friends and Salinas’s friends. Jenny’s stepsister Ulissa and Salinas’s girlfriend Volau began to argue. Salinas, Jenny and Volau withdrew to another room to discuss the matter. Salinas’s mother was concerned about the situation. Ulissa tried to enter the room and assault Volau. Salinas prevented Ulissa from doing so. Volau remained with Salinas for a few minutes before they returned to the party.
Ulissa was involved in a second disagreement, this one with her boyfriend Guerrero. Believing he was on the telephone talking to another girl, she slapped him in the face hard enough to knock his hat off. An altercation developed and guests separated the two. Ulissa—who appeared to be intoxicated—was removed to Salinas’s room, attended by her sister Kemberley. Then, the two sisters began arguing and another fight ensued. This time, Ulissa punched Kemberley, who tried to hit back. Other guests—including Salinas—separated the sisters. When the two sisters were together again, Ulissa hit Kemberley again.
The last altercation prompted Salinas’s mother, his brother Jose Salinas and many other family members to leave the party with their children. Soon, Ulissa also left the party. DeLeon left his girlfriend Kemberley behind and went with Ulissa. As he left the apartment, DeLeon punched the metal front door, leaving a visible dent in it.
Upset, Salinas asked, “Who punched my fucking door?” Someone identified DeLeon as the culprit. Salinas said, “He better not come back.” He put his shoes on and went outside, but by then, DeLeon was gone. He thought that DeLeon might return, so he stayed outside talking to some friends for a few minutes and taking a hit off a joint of marijuana.
By this time, only a few people were left at his birthday party. They sat around in shock, upset that Jenny’s stepsisters had ruined the party. Soon, Kemberley’s father came to drive her home and she left, too.
After Jose left the party, he walked to his car, stopping to talk with a friend. He overheard DeLeon and Guerrero—who was wearing red that night—arguing about Ulissa. At that time, DeLeon was wearing a blue sweater. DeLeon removed it so that he was shirtless and challenged Guerrero to “box it up.” DeLeon mentioned “Sur Trece”—a gang reference to those who claim blue colors. Guerrero said that he did not claim any colors. Jose advised Guerrero to walk away from the fight. Guerrero did so before any blows were exchanged.
Guerrero had come to the party with DeLeon and needed a ride home. Jose gave him money for BART fare. Guerrero told Jose to tell Salinas that he was sorry for all the commotion and to wish him a happy birthday. Guerrero walked in the direction of a nearby BART station. DeLeon and Ulissa drove off.
While Jose was talking with Guerrero, Brisa Rojas—the sister of Jose’s girlfriend—called his cell phone to say that she was on her way to the party. He told her that the party was over, but she was determined to come by to wish Salinas a happy birthday. Once Guerrero, DeLeon and Ulissa left, Jose walked back toward the apartment to wait for Brisa.
When Brisa arrived at the apartment, she gave Salinas a hug. He seemed relaxed to her—the atmosphere in the room was not angry or upset. Then, Ulissa returned to the apartment, announcing that the police were on their way. DeLeon was right behind her, coming up to the door of the apartment.
Underage drinkers had been at the party, so some of the remaining guests were concerned by this announcement. Ulissa and Jenny were still under 21 at the time of the party. Also, Ulissa had also given several shots of hard liquor to her brother Christopher, who was only 11.
Salinas confronted DeLeon about why he had punched in the door. DeLeon denied doing this, but Salinas did not believe him, telling DeLeon to leave because he was “disrespecting” the house. The two young men began to argue, standing face to face just inside the door of apartment.
Salinas’s friends tried to keep the two men apart and urged DeLeon to leave. DeLeon resisted, trying instead to go at Salinas, who was also trying to break free of his friends’ restraint and get to DeLeon. Salinas was angry—he broke free of his friends, ran toward DeLeon and shoved him.
For a moment, it seemed that DeLeon might leave, although it is unclear whether he started backing away of his own volition or was pushed or pulled from the apartment by others. Then, suddenly, Salinas and DeLeon both were swinging at each other. The two men fell to the ground in the driveway, wrestling and punching each other with their fists. At first, they were hunched over on their knees, each man holding the other in a headlock. Eventually, DeLeon was atop Salinas, who was on his back on the ground.
Volau screamed at DeLeon and yanked at his hooded jacket, trying to pull him off of her boyfriend. Ulissa screamed for DeLeon to stop. Jose and Paul Rojas—the brother of Jose’s girlfriend—joined in. They punched DeLeon several times, ordering him off of Salinas. Eventually, Salinas stopped holding DeLeon. Jose and Rojas were able to pull DeLeon away from Salinas.
Jose tossed DeLeon into some nearby bushes. Ulissa screamed at DeLeon: “What did you do? What did you do?” He appeared to be dazed or intoxicated. He was covered in blood, including some from a cut on his forehead. He stood up slowly. Many eyewitnesses saw that he held a knife in his hand. DeLeon staggered away from Salinas, dropping the knife when he was a few feet away.
At trial, Jenny Acuna demonstrated that DeLeon held the knife in his hand balled up into a fist with his thumb up toward the top.
It is unclear whether Salinas stood up on his own or was pulled up when DeLeon was pulled off of him. However he got up, Salinas fell, hitting his head on the bumper of a car. The impact sounded like gunshot. He was not moving—he had a weak pulse, his eyes were closed and his breathing was labored. He seemed to have lost consciousness and did not respond to attempts to revive him.
By this time, onlookers realized that Salinas had been stabbed in the neck and abdomen. They tried to help stop his bleeding. Volau left Salinas and ran off in pursuit of DeLeon.
Two 911 calls were placed about 10:20 p.m. Jose—having heard his brother’s head hit the car bumper—mistakenly reported that his brother had been shot. In the midst of this call, Jose saw DeLeon running off. He handed his cell phone to Jenny and took off after DeLeon.
The tape recordings of these two 911 calls were played for the jury. During one call, a woman was heard to ask people not to touch the knife that was on the ground—apparently, the knife that was found near Salinas’s body.
The police began to arrive. Still running toward DeLeon, Jose saw an approaching police car. He and Volau waved the car down, screaming at San Leandro Police Officer Ken Shedd that DeLeon had killed Salinas. Officer Shedd drew his weapon. He ordered DeLeon to the ground and told Jose to step back. Both men complied. DeLeon was arrested.
Jose ran back to where Salinas lay on the ground. By then he could see that his brother had been cut open with a knife. When Salinas’s shirt was lifted up, it was obvious that his abdomen had been cut open and his intestines were visible outside of his body. By this point, paramedics had arrived to attend to Salinas, who had stopped breathing and no longer had a pulse. Salinas was taken to a hospital, but died that evening of multiple stab wounds to his neck, heart and abdomen.
A police lieutenant who observed DeLeon at the scene opined that he was intoxicated—his speech was slurred, his demeanor was depressed, and his movements were slow and deliberate. Officer Shedd observed that DeLeon’s jeans were soaked in blood. DeLeon was taken to a hospital for treatment. He had suffered a stab wound to his lower left thigh that required stitches. DeLeon told the doctor that he was walking down the street, minding his own business when he was stabbed. He had also suffered a superficial abrasion on his forehead.
During one 911 call, a voice was heard to report that there was a knife on the ground. Police found a blood-stained knife on the driveway near Salinas’s body. No other weapons were found on or near Salinas’s body. Witnesses testified that Salinas, Rojas and Jose were all unarmed at the time of the incident.
In December 2005, DeLeon was charged by information with Salinas’s murder. (See § 187, subd. (a).) The information also alleged that DeLeon used a deadly weapon—a knife—during the commission of this offense. (See § 12022, subd. (b)(1).)
DeLeon did not testify at trial. The defense put on no evidence. Defense cross-examination of prosecution witnesses suggested that DeLeon was retreating from the apartment when Salinas attacked him. That cross-examination also attempted to bring out evidence that the Salinas brothers and Rojas were more aggressive in their attack on DeLeon than they had admitted—that they brutally beat and choked him instead of simply attempting to get him off of Salinas.
Prosecution witnesses testified that no one—not Salinas, Paul or Jose—jumped or choked DeLeon. When he was examined by medical personnel on the night of the stabbing, DeLeon did not seem to have suffered any neck injury. He had a full range of motion to his neck without any apparent stiffness. Three days after the incident, DeLeon’s neck still showed no sign of injury, mark or bruising. There was also evidence that, during the fight, no one saw DeLeon signal that he wanted to stop fighting.
In April 2006, the jury acquitted DeLeon of first degree murder, but guilty of the lesser included offense of second degree murder. It also concluded that he used a knife during the commission of this offense. DeLeon filed a motion for new trial, arguing that the evidence was insufficient to support a verdict of murder with malice aforethought. He also moved for a reduction of the conviction from second degree murder to manslaughter, inviting the trial court to reweigh the evidence of malice. The trial court denied both motions. In October 2006, DeLeon was sentenced to an indeterminate state prison term of 15 years to life with the possibility of parole. Sentence on the deadly weapon enhancement was stayed.
II. MALICE
A. Legal Standard
On appeal, DeLeon contends that the evidence offered at trial does not support the finding of malice required to support his second degree murder conviction. He reasons that the trial evidence compels the conclusion that he acted both in the heat of passion and while he had an unreasonable belief in the need for self-defense. He cites evidence of his alcohol intoxication in support of his claim that he was guilty of no more than voluntary manslaughter.
When testing the sufficiency of evidence in support of a criminal conviction, the scope of our appellate review is narrow. (See, e.g., People v. Protopappas (1988) 201 Cal.App.3d 152, 167.) We determine whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof that DeLeon acted with malice when killing Salinas. We must view the evidence in the light most favorable to the jury’s verdict to determine whether there is substantial evidence—reasonable, credible and solid—that could support a reasonable jury’s finding of guilt beyond a reasonable doubt. (People v. Welch (1999) 20 Cal.4th 701, 758, cert. den. sub nom. Welch v. California (2000) 528 U.S. 1124; People v. Johnson (1980) 26 Cal.3d 557, 576.) We presume in support of those findings the existence of every fact that could be reasonably deduced from that evidence. A reasonable inference must be based on evidence, not suspicion, speculation or supposition. (People v. Tran (1996) 47 Cal.App.4th 759, 771-772.)
Although it was an issue at trial whether DeLeon was the actual killer, on appeal, he does not challenge the jury’s finding that he used a deadly weapon in the commission of this offense. Thus, the jury necessarily found that DeLeon—the man who held the murder weapon—was the killer.
We may not reweigh or reinterpret the evidence on appeal. (People v. Pace (1994) 27 Cal.App.4th 795, 798.) Credibility is the exclusive province of the jury. We have no power to substitute our judgment of the credibility of the evidence for that found by the jury. (People v. Barnes (1986) 42 Cal.3d 284, 303-304.) We must determine whether substantial evidence supports the conclusion of the trier of fact, not whether evidence proves the disputed issue beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Crittenden (1994) 9 Cal.4th 83, 139, cert. den. sub nom. Crittenden v. California (1995) 516 U.S. 849; People v. Johnson, supra, 26 Cal.3d at p. 576.) As we must draw all inferences in support of the jury’s finding, DeLeon bears an enormous burden when he challenges the sufficiency of evidence. (See, e.g., People v. Vasco (2005) 131 Cal.App.4th 137, 161.) A judgment may be reversed for insufficiency of evidence only if it appears that under no hypothesis whatever is there substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331, cert. den. sub nom. Bolin v. California (1999) 526 U.S. 1006.)
DeLeon challenges the sufficiency of evidence in support of the jury’s second degree murder verdict, arguing that there was no evidence that he acted with malice. The federal Constitution requires proof beyond a reasonable doubt of every fact necessary to constitute a charged offense in order for a criminal conviction to satisfy the requirements of due process. (In re Winship (1970) 397 U.S. 358, 364.) Malice is an element of murder. (§ 187, subd. (a).) Thus, if there was insufficient evidence of malice, DeLeon’s conviction for second degree murder would violate his right to due process.
Murder is the unlawful killing of a human being committed with malice aforethought. (§ 187, subd. (a).) Malice may be express or implied. (§ 188; People v. Timms (2007) 151 Cal.App.4th 1292, 1296 (Timms).) “Malice is implied . . . when a killing results from an intentional act, the natural consequences of which are dangerous to human life, and the act is deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.” (People v. Cook (2006) 39 Cal.4th 566, 596, cert. den. sub nom. Cook v. California (May 21, 2007, No. 06-10302) ___ U.S. ___ [127 S.Ct. 2438]; Timms, supra, 151 Cal.App.4th at p. 1296.) When one kills a human being without malice, the offense is manslaughter, not murder. (§ 192.)
B. Voluntary Intoxication
Before we turn to the merits of DeLeon’s claims that he lacked malice, we note that both of his arguments hinge, in large part, on evidence of his alcohol intoxication. However, evidence of voluntary intoxication may not be considered to disprove implied malice. This was not always the law in California. Before 1995, courts interpreted section 22 to permit consideration of evidence of voluntary intoxication in both express and implied malice cases. (See former § 22, subd. (b) [Stats. 1982, ch. 893, § 2, pp. 3317-3318]; People v. Whitfield (1994) 7 Cal.4th 437, 446-447, 451; Timms, supra, 151 Cal.App.4th at pp. 1296-1297; see also People v. Cameron (1994) 30 Cal.App.4th 591, 601 [applying pre-1995 law].) In 1995, the Legislature amended section 22 to make it clear that evidence of voluntary intoxication was only admissible in cases of express malice. (See Stats. 1995, ch. 793, § 1, p. 6149; People v. Mendoza (1998)18 Cal.4th 1114, 1126.) After this amendment, evidence of voluntary intoxication was no longer admissible to negate implied malice. (Timms, supra, 151 Cal.App.4th at p. 1298; People v. Reyes (1997) 52 Cal.App.4th 975, 984, fn. 6; see § 22, subd. (b).)
Section 22 states in relevant part: “(a) No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act. [¶] (b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.”
As enacted in section 22, it is the policy of this state that an act is no less criminal because the actor committed it while voluntarily intoxicated. One who kills another person while he or she is intoxicated bears the same criminal responsibility as a sober person. (§ 22, subd. (a); Timms, supra, 151 Cal.App.4th at p. 1300.) Voluntary intoxication is thus irrelevant to existence of the mental state of implied malice or conscious disregard. (Timms, supra, 151 Cal.App.4th at pp. 1300-1301.) The jury in DeLeon’s case was so instructed. With this prohibition on the use of evidence of DeLeon’s voluntary intoxication in mind, we consider the merits of his claim of error on appeal.
The Supreme Court has also rejected the claim that failure to consider voluntary intoxication evidence to negate the mental state necessary for implied malice would violate due process. (See People v. Atkins (2001) 25 Cal.4th 76, 93 [arson case], citing Montana v. Egelhoff (1996) 518 U.S. 37, 39-40, 56 [plurality opinion]; see also Timms, supra, 151 Cal.App.4th at p. 1301.)
C. Heat of Passion
First, DeLeon argues that the evidence at trial proved that he must have killed Salinas in the heat of passion in response to the provocation of the victim and his allies, necessarily negating a finding of malice. When a killer intentionally but unlawfully kills in a sudden quarrel or heat of passion, the killer lacks malice and is guilty of voluntary manslaughter, not murder. A killer is guilty of voluntary manslaughter if the killer acts with conscious disregard for life and—knowing that his or her conduct endangers the life of another—unintentionally but unlawfully kills as the result of a sudden quarrel or heat of passion. (People v. Lasko (2000) 23 Cal.4th 101, 104, cert. den. sub nom. Lasko v. California (2000) 531 U.S. 951; Timms, supra, 151 Cal.App.4th at p. 1296; see also People v. Rios (2000) 23 Cal.4th 450, 460-461.)
In the case before us, DeLeon’s interpretation of the circumstances leading to the killing that persuade him that malice was not proven in the trial court is not the only one that could logically be made from the evidence. (See People v. Bolin, supra, 18 Cal.4th at p. 331.) DeLeon attempted to suggest to the jury that Salinas may have had his arm wrapped around DeLeon’s face and neck such that he was being choked. However, there was also evidence from eyewitnesses that Salinas’s headlock might not have blocked DeLeon’s airway. The jury could have found this evidence to be more credible than DeLeon’s claim that he was being choked. (See People v. Barnes, supra, 42 Cal.3d at pp. 303-304; People v. Pace, supra, 27 Cal.App.4th at p. 798.) In addition, there was undisputed evidence that DeLeon suffered no injury to his neck—no bruising, stiffness, or loss of movement that would be expected if Salinas’s headlock had been so strong and so positioned that it forced DeLeon to struggle in order to breathe. Faced with this lack of evidence of neck injury, the jury could reasonably have rejected DeLeon’s argument that Salinas had choked off his airway.
DeLeon contends that Salinas pushed him before the two of them began fighting in earnest. The provocation that incites a defendant to kill in the heat of passion must be caused by the victim. It may be verbal or physical, but must be sufficiently provocative that it would cause an ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection. The test of adequate provocation is an objective one—the provocation must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment. (People v. Johnston (2003) 113 Cal.App.4th 1299, 1311.) In the case before us, the jury could reasonably have found that Salinas’s push was not sufficient provocation to inflame an average, sober person to a homicidal response in the heat of passion.
DeLeon also argues that he was viciously assaulted by Salinas and a gang of his allies once the fight began. In fact, the evidence was conflicting on whether Salinas’s friends were trying to stop the fight using half-hearted blows or whether they brutally beat DeLeon. This was a credibility question to be resolved by the jury. The jury resolved this issue against DeLeon. We have no power to draw the contrary inferences that DeLeon would require us to make in order to accept his claim that the evidence necessarily proved that he acted in the heat of passion. (See People v. Barnes, supra, 42 Cal.3d at pp. 303-304.)
There was substantial evidence from which a jury could conclude that Salinas, his brother and his friend did not provoke DeLeon such that a reasonable person would be prompted to strike out in the heat of passion, obliterating the reason that would otherwise prevail in the mind of that reasonable person. (See People v. Johnston, supra, 113 Cal.App.4th at p. 1311.) The evidence of provocation adduced at trial was not such that it would inflame an average sober person—someone very different from the person who stormed out of Salinas’s birthday party on the night of the killing, tried to pick a fight with Guerrero and then returned to Salinas’s apartment—to escalate a fist fight into a brutal knife attack that resulted in Salinas’s death. Thus, we conclude that the evidence did not necessarily establish that DeLeon acted in the heat of passion.
D. Imperfect Self-defense
DeLeon also argues that the trial evidence showed that he killed Salinas while unreasonably believing that he needed to defend himself. Imperfect self-defense is the good faith but unreasonable belief in the need to act in self-defense. (People v. Rios, supra, 23 Cal.4th at p. 461; People v. Barton (1995) 12 Cal.4th 186, 199.) The defendant must have entertained the actual, though unreasonable, belief that he or she was in imminent danger of death or great bodily injury in order for the doctrine of imperfect self-defense to apply. (In re Christian S. (1994) 7 Cal.4th 768, 771.) Imperfect self-defense is inconsistent with malice because the mental state required for malice cannot coexist with an actual belief that a lethal act was necessary to avoid the killer’s own death or serious injury at the hands of the victim and his allies. If a defendant shows that he or she killed the victim while laboring under an unreasonable but actual belief in the need for self-defense, the killing lacks malice such that it constitutes voluntary manslaughter, not murder. (People v. Rios, supra, 23 Cal.4th at p. 461.)
Again, the evidence does not compel the conclusion that DeLeon entertained an actual, but unreasonable belief in the need to defend himself from imminent harm. The jury heard evidence that DeLeon was angry when he returned to Salinas’s apartment after the aborted fight with Guerrero. He was asked to leave Salinas’s house, but he did not do so. He was asked to stop fighting with Salinas, again, to no avail. He had opportunities to walk away from the fight, but chose not to take advantage of them. DeLeon did not seek to avoid confrontation, but sought it out.
For this reason, DeLeon’s case is factually distinguishable from that of People v. Elmore (1914) 167 Cal. 205, 208.
The jury appears to have found the evidence that Salinas did not choke DeLeon such that he was unable to breathe to be more credible than the contrary evidence that DeLeon would have us believe. The jury acted within its authority when resolving this credibility issue. Thus, we find that the jury could have reasonably concluded that DeLeon did not act out of an actual belief that he was in imminent danger. (See In re Christian S. supra, 7 Cal.4th at p. 771.) As such, the jury reasonably rejected DeLeon’s claim that the doctrine of imperfect self-defense applied in this matter to negate the malice element of second degree murder.
E. Substantial Evidence of Malice
Having rejected both of DeLeon’s arguments that the evidence did not show malice, we also conclude that the evidence adduced at trial was sufficient to establish malice. We construe the evidence and make all reasonable inferences that could be drawn from it in favor of the jury’s verdict, as we must. (See Jackson v. Virginia, supra, 443 U.S. at pp. 318-319; People v. Crittenden, supra, 9 Cal.4th at p. 139; People v. Johnson, supra, 26 Cal.3d at p. 576; People v. Vasco, supra, 131 Cal.App.4th at p. 161.) That evidence showed that DeLeon was part of a group of guests who caused such a disturbance at a family birthday party that most of Salinas’s family left. When DeLeon left, he was so angry that he struck Salinas’s metal door hard enough to leave a dent in it. He would have gotten into a physical altercation with Guerrero, if the latter had not walked away. DeLeon then returned to Salinas’s apartment in an angry mood, itching for a fight. Angry words and a push occurred. Once a fist fight started with Salinas, the victim’s friends attempted to intervene in an attempt to force DeLeon to stop fighting and leave. Then, DeLeon pulled out a knife that he had brought with him and inflicted multiple, mortal stab wounds to Salinas’s neck, heart and abdomen, including an abdominal wound that was one of the worst that the paramedic had ever seen. These circumstances could lead a reasonable jury to conclude, at a minimum, that DeLeon harbored implied malice when he intentionally stabbed Salinas in a manner that displayed a conscious disregard for life. (See, e.g., People v. Cook, supra, 39 Cal.4th at p. 596; Timms, supra, 151 Cal.App.4th at p. 1296.) Thus, there was substantial evidence of malice to support the jury’s second degree murder verdict.
The judgment is affirmed.
We concur: Ruvolo, P.J., Rivera, J.