Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF128040, Richard T. Fields, Judge.
Richard Jay Moller, 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, Lynne McGinnis, Supervising Deputy Attorney General, and Kelley Johnson, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant Christopher Daniel Machuca appeals seeking reversal of two attempted murder convictions. He contends there is insufficient evidence to establish the specific intent to kill. He also seeks modification of the court’s minutes from his sentencing hearing and the abstract of judgment to accurately reflect the sentence the court imposed.
FACTUAL AND PROCEDURAL BACKGROUND
A jury found defendant guilty of all of the charges alleged in a five-count, amended information. In count 1, the jury convicted defendant of deliberate, premeditated attempted murder of minor victim Jane Doe (the minor victim) in violation of Penal Code sections 664 and 187, subdivision (a), by personally using a deadly and dangerous weapon, a knife, within the meaning of sections 12022, subdivision (b)(1), and 1192.7, subdivision (c)(23). In connection with count 1, the jury further concluded defendant personally inflicted great bodily injury upon the minor victim within the meaning of sections 12022.7, subdivision (a), and 1192.7, subdivision (c)(8). In count 2, the jury convicted defendant of deliberate, premeditated attempted murder of the minor victim’s fetus in violation of sections 664 and 187, subdivision (a), by personally using a deadly and dangerous weapon, a knife, within the meaning of sections 12022, subdivision (b)(1), and 1192.7, subdivision (c)(23). In count 3, the jury found defendant guilty of assaulting the minor victim in violation of section 245, subdivision (a), with a deadly weapon, a knife, with force likely to produce great bodily injury, and found defendant did, in fact, inflict great bodily injury on the minor victim within the meaning of sections 12022.7, subdivision (a), and 1192.7, subdivision (c)(8). In count 4, the jury found defendant committed a first degree burglary in connection with the above-listed offenses in violation of section 459. Finally, in count 5, the jury concluded defendant was guilty of statutory rape of the minor victim in violation of section 261.5, subdivision (b), a misdemeanor.
All further statutory references are to the Penal Code unless otherwise indicated.
Based on the evidence presented at trial, the minor victim stayed at the home of a minor friend, A.B., the night before her 15th birthday. A.B. slept in her own room. The minor victim slept on a sofa in the living room. Another minor friend named D.P. slept on a second sofa in the living room. D.P. is also defendant’s cousin. Several other people slept in the home that night, including A.B.’s mother, the mother’s boyfriend, the boyfriend’s son Daniel, and another friend named John. At least two witnesses indicated defendant did not approve of the minor victim staying at A.B.’s house. Defendant frequently went to A.B.’s house to socialize and was a friend of Daniel who lived there.
The minor victim recalled waking up when defendant pulled the blanket off of her. She pulled the blanket back up over her head and felt someone hitting her. However, she soon realized she had been stabbed because she was bleeding from her neck, just below her Adam’s apple, and from one of her armpits. She started screaming and tried to get up but fell on the floor. After falling on the floor, she was able to get up and run to A.B.’s room. She did not see anything in defendant’s hands, and she did not hear him say anything.
D.P., who was sleeping on a nearby sofa, woke up when she heard the minor victim screaming; she saw defendant walking toward the door with a knife in his hand. D.P. also recalled seeing what looked like a black handle on the floor. From her room, A.B. heard a scream, a thump, and someone yelling “[g]et off of her.” She then recalled the minor victim running into her room bleeding, holding her neck, and yelling “[h]e stabbed me.”
A.B.’s mother was also awakened by the commotion and opened the door to the bedroom where she had been sleeping. She said she heard screaming and a loud thud. She also heard D.P. yelling, “Knock it off, get off of her, stop hitting her, stop it.” When she opened her bedroom door, she saw defendant from the back, and he was leaving the living room and walking toward the laundry room, which led out of the home into the driveway. However, she did not see a knife or any other object in his hand. She also recalled hearing D.P. yelling that defendant stabbed the minor victim.
A.B.’s mother drove the minor victim to the emergency room. On the way to the hospital, A.B.’s mother and the minor victim both saw defendant walking down the sidewalk away from the house. When they arrived at the hospital, the minor victim was taken to a second hospital by ambulance where her wounds were treated. She stayed at the hospital for three days. The pain from the wounds lasted two weeks or a month. She also had trouble sleeping and moving around during her recovery and has scars on her neck and side.
At the time of the stabbing, the minor victim was five months pregnant with defendant’s child. By the time of trial, the minor victim had given birth to a son. She testified she told defendant he was the father of the child when she was about a month and a half along in her pregnancy. He wanted her to have an abortion, but she said “no.” A week before the stabbing, the minor victim had broken up with defendant. Although she had seen him in the neighborhood after they broke up, the minor victim stated she had not spoken with defendant during that week and intended to sever the relationship completely.
The trial testimony of the minor victim and D.P. was significantly different from and more favorable to defendant than prior statements they made during initial interviews and the preliminary hearing. Their prior inconsistent statements were presented to the jury through other witnesses and by reading the relevant transcripts into the record. To help explain the differences in the minor victim’s testimony, a jail employee reviewed visitors’ logs and testified the minor victim and her infant son visited defendant at the jail prior to trial. Because defendant challenges the sufficiency of the evidence, we, of course, review and summarize the evidence in the light most favorable to the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
DISCUSSION
I. Attempted Murder – Sufficiency of the Evidence
Defendant contends there is insufficient evidence that he specifically intended to kill the minor victim or that the attack was premeditated and deliberate. In his view, the evidence is only enough to establish he acted rashly with an intent to commit an assault. To support his argument, he cites his own failure to make any statements indicative of any intent to kill before or after the incident. Citing a police investigator’s testimony during cross-examination by the defense about the size of the minor victim’s injuries, defendant argues the evidence proved the knife wounds to the victim were minor, “small,” “not lethal” or “life-threatening.” As a result, he contends the wounds show he did not intend to kill the victim, but rather meant to assault her because he was angry and “mentally-troubled.” To further support this contention, defendant cites the lack of any testimony by a medical expert about the nature and extent of the injuries to the minor victim.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) “In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts.” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact.” (Ibid.) “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.)
“Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.” (People v. Lee 31 Cal.4th 613, 623.) The mental state required for attempted murder is express malice. (People v. Smith (2005) 37 Cal.4th 733, 739.) “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, supra, 37 Cal.4th 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, “evidence of motive is often probative of intent to kill.” (Smith, supra, 37 Cal.4th at p. 741.)
In this case, the jury not only found there was a specific intent to kill both the minor victim and the fetus, but also concluded the attempted murders were “willful, deliberate, and premeditated” within the meaning of section 664, subdivision (a). “An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse. [Citations.] However, the requisite reflection need not span a specific or extended period of time. ‘ “ ‘Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .’ ” ’ [Citation.] [¶] Appellate courts typically rely on three kinds of evidence in resolving the question raised here: motive, planning activity, and manner of killing. [Citations.] These factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation.” (People v. Stitely (2005) 35 Cal.4th 514, 543.)
Our review of the record discloses sufficient, credible evidence from which the jury could reasonably conclude defendant specifically intended to kill the minor victim, and he attempted to murder the minor victim in a manner that was premeditated and deliberate. Most significantly, the evidence demonstrated defendant had a motive to kill. Defendant and the minor victim had been involved in a dating relationship, and there was a breakup only a week before the attack. She was also pregnant with defendant’s child, and there was evidence defendant did not want her to have the child. An abortion had been discussed early in the pregnancy, but the minor victim refused. In addition, the night before the attack, the minor victim spent the night at the home of mutual friends. There was testimony indicating defendant did not approve of the minor victim staying in this particular household. From this evidence, the jury could reasonably infer the relationship was fraught with tension over the pregnancy and other issues in the months preceding the attack. Under these circumstances, it would be reasonable for the jury to give little or no weight to conflicting evidence, such as testimony suggesting defendant may have shown concern for the minor victim and/or the baby when he saw the minor victim riding a bicycle.
Premeditation and deliberation, as well as a specific intent to kill, are evidenced by the circumstances of the attack. Planning activity includes the evidence indicating defendant entered the household surreptitiously when the minor victim and others in the household were sleeping. The minor victim stated defendant pulled a blanket off of her, which suggested premeditation and planning—he wanted to be sure who was sleeping there and to take note of the position of her body before striking with the knife. Surprised and obviously frightened, the victim pulled the blanket back and up over her head. Determined and undeterred, defendant plunged the knife through the blanket, not once, but twice. Both the number and location of the minor victim’s wounds suggest premeditation and a specific intent to kill. He stabbed her in the neck, an especially vulnerable spot. He also stabbed her under her left arm. The prosecutor argued the location of this wound was significant because it was “near the heart.” Defendant dismisses this argument as merely unsupported “hyperbole.” However, the jury could reasonably infer from the location of the two stab wounds that defendant was aiming for the center of her body or the heart, as opposed to a limb or other extremity, because his objective was not simply to wound or hurt her but to kill her. 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 expert medical testimony concerning the gravity of the injuries and the relatively “small” size of the stab wounds 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 claims he could have inflicted lethal wounds on the minor victim if that were his intent, because she was sleeping at the time of the attack. Testimony by a medical expert was unnecessary given the nature of the injuries and the obvious source, as well as the victim’s testimony she spent three days in the hospital and experienced significant discomfort for an extended period following the attack. A qualified expert did identify the victim’s injuries as stab wounds. The jury was shown the holes in the blanket that covered the victim during the attack, the extent of blood stains found in the home, and pictures of the wounds themselves. As a result, the jury was in a position to be able to assess the severity of the injuries in relation to the attack without the assistance of testimony by a medical expert.
There was also compelling evidence explaining the likely reasons for the relatively “small” size of the wounds, which did not in any way detract from the convincing nature of the other evidence demonstrating premeditation, deliberation, and a specific intent to kill. First, there was testimony suggesting defendant used a small kitchen knife to stab the minor victim. During the investigative interview conducted at the hospital, D.P. said she saw defendant leaving with a knife in his hand, and she described it as a “regular kitchen” knife. Although none had fresh blood on them, a police investigator testified he found “up to ten” dirty knives in the kitchen sink. He further testified the size of the knives he found in the sink matched the size of the victim’s wounds. In addition, the prosecutor argued defendant would have had the impression the knife penetrated deeper than it actually did, because the blanket was between the victim and the knife during the attack. He also argued the blanket acted as a protective shield and essentially saved the minor victim’s life. In other words, the stab wounds could have been significantly more serious had it not been for the presence of the blanket. Given the physical evidence and the eyewitness testimony about the attack, these arguments are exceedingly persuasive. Finally, the minor victim testified she fell to the floor after she was stabbed. Defendant then walked out of the house, suggesting he believed he had accomplished his objective, so no further attack was necessary. 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.)
We also reject defendant’s argument there was insufficient evidence of his intent because he did not make incriminating statements close in time to the attack. “One who intentionally attempts to kill another does not often declare his state of mind either before, at, or after the moment he [attacks]. Absent such direct evidence, the intent obviously must be derived from all the circumstances of the attempt . . . .” (People v. Lashley (1991) 1 Cal.App.4th 938, 945-946.) For the reasons outlined above, there was an abundance of circumstantial evidence of defendant’s intent. As a result, we are unconvinced by the absence of incriminating statements in the trial record by defendant that would have been probative of his intent.
Defendant also contends there is insufficient evidence that he specifically intended to kill the fetus or that the attack was premeditated and deliberate. He believes the “small” size, location, and non-lethal nature of the wounds on the minor victim show the attack was “obviously not directed at the fetus.” In addition, he believes the only other evidence relevant to his intent toward the fetus was equivocal (i.e., an abortion was only discussed once early in the pregnancy, and he later demonstrated concern for the fetus when he saw the minor victim riding a bicycle). He therefore contends there was “no evidence” he intended to kill the fetus.
In this argument, defendant quotes a portion of our Supreme Court’s decision in People v. Bland (2002) 28 Cal.4th 313, 317 (Bland), which refers to the doctrine of transferred intent. “In its classic form, the doctrine of transferred intent applies when the defendant intends to kill one person but mistakenly kills another. The intent to kill the intended target is deemed to transfer to the unintended victim so that the defendant is guilty of murder.” (Ibid.) In Bland, our Supreme Court held the theory of transferred intent “does not apply to an inchoate crime like attempted murder.” (Ibid.)
“To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else. The defendant’s mental state must be examined as to each alleged attempted murder victim. Someone who intends to kill only one person and attempts unsuccessfully to do so, is guilty of the attempted murder of the intended victim, but not of others.” (Bland, supra, 28 Cal.4th at p. 328.) However, a primary intent to kill a specific victim does not eliminate the possibility the defendant harbored a concurrent intent to kill another. (Id. at p. 331.)
As defendant acknowledges, the prosecutor proceeded on a “kill zone” theory to support the charge of attempted murder as to the fetus. The prosecutor argued defendant harbored a concurrent and specific intent to kill the fetus. In pertinent part, the prosecutor stated as follows: “Count 2 is the attempted murder of [the minor victim’s] baby, also his baby. It’s a direct but ineffectual act by the defendant towards the victim, again more than mere planning, and the defendant intended to kill her. [¶] The baby inside [the minor victim’s] womb at this point in time is what we’re talking about. [¶] . . . He . . . stabbed him in his mom’s throat, then he stabbed again at the heart. He doesn’t have to stab at the [womb], it’s the kill zone, the kill zone is her body. [¶] And the Court gives you a definition of that. [¶] If you believe he’s intending to kill [the minor victim], and he’s stabbing like that (indicating), she’s—the baby is within the body. You kill the mom, you’re killing the baby if that’s your intent. That’s what he’s doing. [¶] . . . [¶] [H]e also specifically intended to kill another human being. Killing [the minor victim] and killing the fetus, killing the baby, the one he wanted aborted and she wouldn’t do it. He couldn’t control her. [¶] . . . His intent in killing the baby, if he hurts [the minor victim] bad enough, the baby could die too.”
Because the prosecutor proceeded on a “kill zone” theory, the trial court instructed the jury as follows: “Now, with respect to Count 2 only, a person may intend to kill a specific victim or victims and at the same time intend to kill anyone in a particular zone of harm or kill zone. [¶] In order to convict a defendant of the attempted murder of the fetus, the People must prove that the defendant not only intended to kill [the minor victim], but also either intended to kill the fetus, or intended to kill anyone within the kill zone. [¶] If you have a reasonable doubt whether the defendant intended to kill the fetus or intended to kill [the minor victim] by harming everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of the fetus.”
The trial court’s instruction is based on our Supreme Court’s decision in Bland, supra, 28 Cal.4th at pp. 329-330. Essentially, Bland recognized that the trier of fact may reasonably infer the specific intent to kill when the means employed to attack a primary target “create a zone of harm around that victim” and make it apparent the perpetrator also intended to ensure harm to everyone in the “zone of harm.” (Ibid.) Although it did not confine the inference to these factual circumstances, the Supreme Court in Bland provided two examples of when such an inference may be appropriate: (1) where “an assailant who places a bomb on a commercial airplane intending to harm a primary target on board ensures by this method of attack that all passengers will be killed”; and (2) when “a defendant who intends to kill A and, in order to ensure A’s death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire or an explosive device devastating enough to kill everyone in the group.” (Ibid.)
In our view, the record refutes defendant’s contention there is insufficient evidence he specifically intended to kill the fetus or that the attempted murder of the fetus was premeditated and deliberate. This is the case whether or not the evidence is viewed in light of the prosecutor’s “kill zone” theory. As outlined above, the jury could reasonably believe defendant specifically intended to kill the victim and that the attempt to kill was premeditated and deliberate. Although standing alone it is insufficient to establish a specific intent to kill the fetus, the evidence is probative of defendant’s intent toward the fetus at the time he stabbed the minor victim. At that time, the minor victim and the fetus were essentially inseparable. Defendant knew the minor victim was pregnant, so he also knew he was stabbing someone vital to the survival of the fetus. In other words, he knew to a substantial certainty the fetus would not live if he succeeded in his objective of killing the mother.
There was also evidence of a motive to kill the fetus, based on testimony indicating an abortion had been discussed because defendant did not want the minor victim to have a baby. Although there was some conflicting evidence on this point, it was weak in light of all of the other evidence and, for the reasons outlined in the previous discussion, it would have been reasonable for the jury to reject it. In addition, as outlined more fully in the previous discussion, premeditation and deliberation could reasonably be inferred by the jury based on the circumstances of the attack, including the surreptitious entry into the home and the number and location of the wounds.
In sum, based on the totality of the evidence viewed in the light most favorable to the judgment, we conclude that the jury could reasonably infer defendant specifically intended to kill the minor victim, as well as the fetus, and that the attempted murder of each was premeditated and deliberate. We therefore conclude there is sufficient evidence to support two separate convictions for attempted murder of the minor victim and the fetus.
II. Sentencing Error
Defendant contends the court’s minutes and the abstract of judgment should be modified because they do not reflect the sentence imposed by the court in several respects as evidenced by the transcript of his sentencing hearing.
“It is, of course, important that courts correct errors and omissions in abstracts of judgment. An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize.” (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Appellate courts have the authority to correct clerical errors in the abstract of judgment so the record will conform to the oral judgment pronounced by the sentencing court. (People v. Boyd (1988) 46 Cal.3d 212, 256.)
As to count 1, attempted murder of the minor victim, the trial court imposed a life sentence with the possibility of parole. The court also imposed a one-year enhancement for the personal use of a knife (§ 12022, subd. (b)(1)), as well as a three-year enhancement for personally inflicting great bodily injury on the minor victim (§ 12022.7, subd. (a)). The court’s minutes and the abstract of judgment both indicate the enhancements to count 1 were to be served consecutively to the life sentence.
Both sections 12022, subdivision (b)(1), and 12022.7, subdivision (a), provide for “an additional and consecutive term.” However, citing section 669, the court stated these enhancements were to be served concurrently with the life sentence on count 1. The trial court stated it relied on the use of the term “may” in section 669 to conclude it had discretion under section 669 to impose the enhancements to count 1 to be served concurrently with the life term on count 1. In pertinent part, section 669 states as follows: “Life sentences, whether with or without the possibility of parole, may be imposed to run consecutively with one another, with any term imposed for applicable enhancements, or with any other term of imprisonment for a felony conviction.” Defendant therefore argues the court’s minutes and the abstract of judgment should be modified to reflect the concurrent terms actually imposed during the sentencing hearing. The People agree to the proposed modification and has not indicated any disagreement with the court’s interpretation of section 669.
As to count 2, attempted murder of the fetus, the trial court imposed life with the possibility of parole to be served consecutively to the life term on count 1. As to count 2, the court struck the enhancement imposed pursuant to section 12022, subdivision (b), for the use of the knife. However, the court’s minutes and the abstract of judgment indicate the enhancement to count 2 was stayed pursuant to section 654. Defendant therefore contends the minutes and the abstract of judgment should be modified to reflect a stay of the enhancement. The People agree to the proposed modification and has not argued it was inappropriate for the court to strike the enhancement on count 2 pursuant to section 1385.
As to count 3, assault with a deadly weapon, the court imposed the middle term of three years but stayed it pursuant to section 654. The court also imposed a three-year enhancement under section 12022.7, subdivision (a), for the use of a knife but also stayed it pursuant to section 654. However, the court’s minutes and the abstract of judgment both indicate the enhancement was stricken rather than stayed. Defendant therefore argues we should modify the minutes and the abstract of judgment to reflect a stay of the enhancement on count 3. The People agree to the proposed modification. No error is claimed as to the sentence imposed on count 4.
Based on the foregoing, we conclude it is appropriate for us to direct the superior court to modify the minutes of the sentencing hearing held February 15, 2007, and the abstract of judgment to correctly reflect the sentence imposed.
DISPOSITION
The enhancements imposed on count 1 pursuant to sections 12022, subdivision (b)(1), and 12022.7, subdivision (a), shall be served concurrently with the life term imposed on count 1 pursuant to section 669. The section 12022, subdivision (b), enhancement imposed on count 2 is stricken pursuant to section 1385. The three-year enhancement imposed on count 3 under section 12022.7, subdivision (a), is stayed pursuant to section 654. The Superior Court of Riverside County is directed to amend the minutes of the sentencing hearing held February 15, 2007, and the abstract of judgment to reflect these modifications and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST, J., KING, J.