Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F08901436. Wayne R. Ellison, Judge.
Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, William K. Kim and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Dawson, A.P.J., Hill, J., and Poochigian, J.
Appellant Jaime Reyes-Diaz was charged with malice aforethought murder (Pen. Code, § 187, subd. (a)) and personally and intentionally discharging a firearm, resulting in death (Pen. Code, § 12022.53, subd. (d)). A jury found appellant guilty of murder in the first degree and found the use of a firearm enhancement allegation to be true. The court imposed a term of 25 years to life for the murder conviction and a consecutive term of 25 years to life for the firearm-use enhancement. On appeal, appellant contends there was insufficient evidence to prove deliberation and therefore, his conviction must be reduced from first to second degree murder. We disagree and will affirm.
FACTS
Appellant met the victim, Matilde Torres-Reyes, in mid-2005 when she was married to a friend of his. After her marriage broke up in 2006, Torres-Reyes began dating appellant. Appellant befriended Torres-Reyes’s daughter, Maria Avina. Appellant and Avina talked on the phone on a daily basis.
People began telling appellant that Torres-Reyes was dating another man. Appellant called Avina daily for information about Torres-Reyes, and Avina told him repeatedly to leave her mother alone because they had broken up. Avina testified her mother and appellant broke up about a month before the killing.
On the day before the killing, appellant called Avina and told her he was going to kill Torres-Reyes at noon the next day. He said after he shot Torres-Reyes, he was going to shoot himself, “… so he could die, because he wasn’t going to go to jail.” Appellant added, he had bought a gun that was going to be the murder weapon. To prove that he had a gun, appellant held the gun close to the phone and “pulled something so it could make a sound.” Avina did not believe appellant because he often made similar threats but did not carry them out.
The next day, appellant called Torres-Reyes and told her he wanted to see her to pay her money he owed for his cell phone bill. Between 11:30 a.m. and 12:00 p.m., Avina called Torres-Reyes to ask for a ride. Torres-Reyes told Avina she was at the DMV, but would pick her up in ten minutes. Torres-Reyes never arrived.
After her phone conversation with Avina, Torres-Reyes went to appellant’s house. Appellant testified they discussed their relationship and began to argue. Torres-Reyes took his gun from the closet. He took the gun from her and put it on the bed. Torres-Reyes began laughing at appellant. She did not respond when appellant asked why she was laughing at him, which made him feel “very bad.” Appellant grabbed the gun and shot Torres-Reyes. Torres-Reyes died of a gunshot wound to the head. Appellant then shot himself in the chest. He called 911 and told the operator he had killed his wife.
DISCUSSION
Appellant contends the evidence is insufficient to sustain the trial court’s finding that he deliberated the murder of Torres-Reyes. He concedes there is sufficient evidence to establish premeditation, but submits deliberation and premeditation are not synonymous and there is no evidence he carefully considered and weighed the reasons for and against killing Torres-Reyes and decided to do so anyway. Thus, his conviction for first degree murder must be reduced to second degree murder. We disagree.
In reviewing a criminal conviction for sufficient evidence, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial 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. Halvorsen (2007) 42 Cal.4th 379, 419.) In reviewing the sufficiency of the evidence of premeditation and deliberation, the court assesses whether the evidence supports an inference that the killing occurred as the result of preexisting reflection, as opposed to an unconsidered or rash impulse. (People v. Pride (1992) 3 Cal.4th 195, 247.) Premeditation and deliberation may be proved by circumstantial evidence. (People v. Anderson (1968) 70 Cal.2d 15, 25.)
For a killing with malice aforethought to be first rather than second degree murder, the intent to kill must be formed upon a preexisting reflection and have been the subject of actual deliberation or forethought. (People v. Whisenhunt (2008) 44 Cal.4th 174, 201, citing People v. Anderson, supra, 70 Cal.2d at p. 26.) “Deliberation” refers to a careful weighing of considerations in forming a course of action; “premeditation” means thought over in advance. (People v. Halvorsen, supra, 42 Cal.4th at p. 419; People v. Pool (1865) 27 Cal. 573, 585.)
Pertinent categories of evidence bearing on premeditation and deliberation are (1) planning activity, (2) motive to kill, and (3) manner of killing that indicates the defendant must have intentionally killed according to a preconceived design to take his victim’s life in a particular way for a reason, which the jury can reasonably infer from facts of type (1) or (2). (See People v. Anderson, supra, 70 Cal. 2d at pp. 26-27.)
There is substantial evidence that appellant’s murder of Torres-Reyes was deliberate and premeditated, rather than the result of an unconsidered or rash impulse.
Planning
There is ample evidence of planning activity prior to the actual killing. Appellant told Avina the day before the murder he had bought a gun, which was going to be the murder weapon. He specified he was going to kill Torres-Reyes the next day at noon and then shoot himself. And, appellant lured Torres-Reyes to his residence at the appointed hour by telling her he would pay her money he owed her.
Motive
There is also ample evidence that appellant had a motive to kill Torres-Reyes. Avina and others had told appellant that Torres-Reyes was seeing another man. Appellant had attacked Hugo Camargo two months earlier because he believed he was seeing Torres-Reyes. Finally, Torres-Reyes had told appellant she wanted nothing more to do with him and he should leave her alone.
Manner of Killing
There is ample evidence that appellant killed Torres-Reyes as part of a preconceived design to kill her for a particular reason. Appellant repeatedly told Avina he was going to kill Torres-Reyes. The day before he killed her, he specified the time and the manner by which he planned to kill her. He added that he planned to kill himself afterward because he was not going to jail. The day of the killing, appellant executed his plan, summoned Torres-Reyes to his house at noon and shot her in the head with the shot gun he had acquired to use as the murder weapon.
Although appellant testified he shot Torres-Reyes while she was laughing at him “without thinking,” the jury could reasonably infer premeditation and deliberation. Appellant conceived a plan to shoot and kill Torres-Reyes on a date certain at noon because she was no longer romantically interested in him and to kill himself afterwards to escape punishment. This is credible evidence that appellant carefully weighed the considerations for and against his choice to kill Torres-Reyes and, knowing the consequences, decided to kill.
Accordingly, we conclude the record contains substantial evidence from which a reasonable jury could have found beyond a reasonable doubt that appellant premeditated and deliberated the murder of Torres-Reyes.
DISPOSITION
The judgment is affirmed.