Opinion
Certified For Partial Publication
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts II A, II B, II C and II E.
Review Granted May 30, 1991.
Previously published at 228 Cal.App.3d 581, 235 Cal.App.3d 88
Jay Ruskin, San Anselmo, for defendant and appellant.
John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Herbert F. Wilkinson, Supervising Deputy Atty. Gen., Jeremy Friedlander, Deputy Atty. Gen., San Francisco, for plaintiff-respondent.
POCHE, Associate Justice.
Defendant and appellant Robert Jiminez appeals from a judgment of conviction entered upon jury verdicts finding him guilty of the first degree murder of Dr. John Irion (Pen.Code, §§ 187, 189) with the use of a firearm (§ 12022.5), and the attempted murder of Tom Cappuccio (§§ 187, 664). We affirm in all respects.
Unless otherwise indicated, all subsequent statutory references are to the Penal Code.
I. THE EVIDENCE
The evidence need not be recited in great detail. On March 17, 1988, defendant drove to his place of work, the United States Steel-POSTCO plant in Pittsburg, and parked in front of the door to the machine shop. Ignoring yells from workers to move his car, defendant exited from his vehicle, removed a shotgun, loaded it, and stated, " 'I'm going to blow his fucking head off.' " Defendant then entered the office area and asked for Cappuccio. Without looking up, Cappuccio's secretary mentioned that he was in a meeting. Defendant mumbled something then left the machine shop, expelling a shell from the shotgun.
Defendant returned to his car and stopped briefly at the roll shop (where he exited from the car without the shotgun). He then proceeded to the infirmary. Defendant entered the infirmary, without the shotgun, and asked a nurse if he could see Dr. Irion. While the nurse went to retrieve his chart, defendant returned to his car and obtained the shotgun. When he returned to the infirmary, defendant proceeded to Dr. Irion's office where he shot the physician to death.
The defense conceding that defendant had killed Irion without justification or provocation, argued that because of mental illness or mental defect, defendant did not premeditate or deliberate when he shot Irion. On this basis the defense sought a conviction of second degree murder. The jury disagreed with that assessment of the evidence and convicted defendant of first degree murder.
II. REVIEW
See footnote *, ante.
D. MOTION FOR JUDGMENT OF ACQUITTAL.
Defendant argues the trial court erred at the close of the prosecution's case in denying his motion for judgment of acquittal on the charge of attempted murder. (§ 1118.1.)
In ruling upon a motion for judgment of acquittal, the trial court utilizes the same test as does an appellate court in reviewing a challenge to the sufficiency of the evidence to support a verdict. (People v. Blair (1979) 25 Cal.3d 640, 666, 159 Cal.Rptr. 818, 602 P.2d 738.) This test is: whether from the evidence, including any reasonable inferences to be drawn therefrom, there is substantial evidence of the existence of each element of the charged crime. (People v. Lines (1975) 13 Cal.3d 500, 505, 119 Cal.Rptr. 225, 531 P.2d 793; People v. Trevino (1985) 39 Cal.3d 667, 695, 217 Cal.Rptr. 652, 704 P.2d 719.)
The rules governing the crime of attempt are familiar. "[A]n attempt to commit a crime requires proof of a specific intent to commit the crime and of 'a direct but ineffectual act done toward its commission.' " (People v. Dillon (1983) 34 Cal.3d 441, 452, 194 Cal.Rptr. 390, 668 P.2d 697; accord People v. Superior Court (Caswell) (1988) 46 Cal.3d 381, 398, 250 Cal.Rptr. 515, 758 P.2d 1046; § 664.) "Preparation alone is not enough, there must be some appreciable fragment of the crime committed [and] it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter." (People v. Buffum (1953) 40 Cal.2d 709, 718, 256 P.2d 317.) Commission of an element of the crime other than formation of the intent to commit it is not required. (People v. Dillon, supra, at p. 453, 194 Cal.Rptr. 390, 668 P.2d 697.)
Thus mere preparatory acts are insufficient to support conviction of the crime of attempt. For instance, in People v. Buffum, supra, evidence that the defendants were transporting women from California to Mexico for purposes of performing abortions was insufficient to support their conviction of attempted abortion: "such conduct is merely preparatory and does not constitute a direct, unequivocal act done toward the commission of the offense...." (Id. 40 Cal.2d at p. 718, 256 P.2d 317.)
But where preparation ends and perpetration commences is an elusive determination. Just how elusive is well illustrated in People v. Miller (1935) 2 Cal.2d 527, 42 P.2d 308. There the defendant, slightly intoxicated, entered the town post office and in the presence of others threatened to kill the victim. Later the same day the defendant went to the hop field where the victim was working with a constable. He walked in a direct line toward the victim who was 250 to 300 yards away. Stopping after he had gone about a hundred yards, the defendant loaded his .22 caliber rifle with a "long or high speed cartridge." The victim fled. The defendant then walked toward the constable who without resistance took the gun from defendant. On these facts, the California Supreme Court concluded that there was insufficient evidence that the defendant had progressed beyond mere preparation: "up to the moment the gun was taken from the defendant no one could say with certainty whether the defendant had come into the field to carry out his threat to kill [the victim] or merely to demand his arrest by the constable. Under the authorities, therefore, the acts of the defendant do not constitute an attempt to commit murder." (People v. Miller, supra, 2 Cal.2d at p. 532, 42 P.2d 308.)
As one commentator noted: "As one approaches the other we may find a difficult 'twilight zone' rather than a sharp and clear dividing line. But it is wide as a matter of law." (Perkins & Boyce, Criminal Law (3d ed. 1982) p. 617.)
Unlike the weapon involved, the criticism of Miller has been double barrelled: clearly the actor had gone beyond the stage of preparation when he loaded the rifle in the presence of the victim and obviously his intent to kill the victim had been unequivocally . expressed. (See, e.g., 1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) § 148, p. 165; Note, Crime Prevention and Judicial Casuistry, 5 Hastings L.J. 169, 170-174.) Other jurisdictions have not stood in line for a chance to follow Miller's logic. (See Annot., What Constitutes Attempted Murder (1973) 54 A.L.R.3d 612 [an excellent collection of attempted murder cases across the states].)
It could be argued that in this jurisdiction Miller's command is treated as a request to create grounds to ignore it. For instance, in People v. Parrish (1948) 87 Cal.App.2d 853, 197 P.2d 804, the defendant was stopped at the threshold of the victim's house by the police and arrested. He was carrying a loaded firearm, had earlier expressed his intent to kill the victim, and had hired an accomplice who had assured him that the victim was inside the house. In upholding the conviction of attempted murder the court purported to distinguish Miller on the grounds that the defendant's intent to kill was not equivocal. (See People v. Parrish, supra, 87 Cal.App.2d at p. 857, 197 P.2d 804.) That may be excellent reasoning but it is at odds with Miller. Under Miller's logic, the intent of the defendant in Parrish was equivocal: at the point the gun was removed from the defendant, no one could say with certainty that he had come to the house to carry out his earlier threat to kill the victim or merely to scare her. Under the Miller analysis the conduct of the defendant in Parrish was merely preparatory. (See People v. Miller, supra, 2 Cal.2d at pp. 529-532, 42 P.2d 308.)
Fortunately there are two genuine factors in this case which make Miller inapposite. First, in Miller some considerable period of time elapsed between the verbal threat to kill and the rifle march through the hop field. Here, there was very little time in between the threat to kill, the loading of the gun, and the entry into the victim's office. That rapid and uninterrupted sequence removed any doubt about what it was that defendant was about to do.
The second notable difference is the existence of very probative post-crime conduct. In Miller, as far as we can tell, nothing relevant happened once the gun was taken from the defendant. Here, there was a very significant occurrence immediately subsequent to the Cappuccio incident: defendant proceeded to Dr. Irion's office and killed him. That evidence, as we note again later in this opinion, was admissible as circumstantial evidence of his intent to kill Cappuccio. (Evid.Code, § 1101, subd. (b); cf. People v. Robbins (1988) 45 Cal.3d 867, 879, 248 Cal.Rptr. 172, 755 P.2d 355; People v. Wade (1988) 44 Cal.3d 975, 990-991, 244 Cal.Rptr. 905, 750 P.2d 794.) From the substantial similarity of their commission, the jury could reasonably infer that defendant harbored the identical intent with respect to each victim: to kill him. (Cf. People v. Robbins, supra, 45 Cal.3d at p. 879, 248 Cal.Rptr. 172, 755 P.2d 355.) A jury could also easily conclude that this evidence rendered defendant's intent to kill Cappuccio unequivocal.
In sum, a reasonable jury could find that defendant intended to kill when he entered Cappuccio's office, that his conduct had gone beyond mere preparation and that the crime would have been consummated but for its interruption by circumstances independent of defendant's will: the absence of Cappuccio. (Cf. People v. Miller, supra, 2 Cal.2d at p. 530, 42 P.2d 308.) Because there was substantial evidence of the existence of each element of the crime of attempted murder, the trial court properly denied defendant's motion for judgment of acquittal on the charge of attempted murder and allowed the matter to go to the jury.
See footnote *, ante.
The judgment is affirmed.
ANDERSON, P.J., and PERLEY, J., concur.