Opinion
F074429
10-15-2018
THE PEOPLE, Plaintiff and Respondent, v. OSCAR SAENZ, JR., Defendant and Appellant.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CR-03135)
OPINION
APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge. Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
A jury convicted defendant Oscar Saenz, Jr., of first degree murder and found true the allegation he personally used a knife during the commission of the murder. The court sentenced defendant to 25 years to life, plus one year for the personal use enhancement.
On appeal, defendant contends (1) the trial court abused its discretion in excluding certain third party culpability evidence and (2) insufficient evidence supports the jury's conclusion the murder was willful, deliberate, and premeditated.
We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On July 9, 2015, Brittany Dutra was stabbed to death in the apartment of Dominque Sims. Two eyewitnesses, Sims and Alexander Vernon, identified defendant as the perpetrator.
On the day of the stabbing, defendant, Sims, Vernon, Dutra, and Dutra's boyfriend, Adam Bailey, were at Sims's apartment. Bailey testified he felt uncomfortable because he noticed defendant had a "Rambo"-style knife tucked into a black case around his waist. Bailey and Dutra eventually left Sims's apartment to go to another unit in the same complex. Dutra later came back without Bailey to bring Vernon a cigarette.
Vernon, defendant, and Sims were still present when Dutra returned. Dutra sat next to Vernon on the couch, and defendant and Sims were sitting on a futon while they all watched television. Defendant got up and said he was going to make something to eat. He walked around the couch to the kitchen and was in the kitchen for approximately a minute or two.
When defendant came back into the room, he "grabbed [Dutra] by the neck and stabbed her multiple times in the torso." Dutra "gasped for some air" and "tried to say something" and then "she just hit the ground."
Vernon "grabbed [his] belongings and got the hell out of there." He fled to the house of his friend Cyrus G. Vernon was "really frantic." He told Cyrus G. he had just witnessed a murder. He stayed at Cyrus G.'s residence until another friend convinced him to speak with police. Vernon eventually went to the police station and reported the stabbing, identifying defendant as the assailant.
Sims also left the apartment after the stabbing and walked to the house of her friend, Edward Y. According to Edward Y., Sims appeared "freaked out" and "very distraught" when she arrived. Sims was mumbling and speaking in bits and pieces. Edward Y. eventually gleaned that something had happened at Sims's apartment and they needed to call the police. He called 911 and handed Sims the phone. Sims told the dispatch operator defendant stabbed Dutra in her apartment.
The prosecution introduced the recording of the 911 call. The prosecution also introduced recordings from Sims's subsequent meetings with police during which she reiterated this allegation. Consistent with Vernon's version of events, Sims reported she, Vernon, Dutra, and defendant were all watching television when defendant got up, went to the kitchen with a white shirt in his hand, and then came back and hit Dutra. Dutra started screaming at defendant that she was bleeding, and Sims and Vernon went to push defendant away. Sims stated she did not know what happened and Dutra had done nothing wrong.
In the early morning hours after the stabbing, around 2:40 a.m., Carl O. was driving home from work when he saw defendant riding his bike at a high rate of speed. Carl O. testified defendant looked "spooked" or in shock, and he appeared to be "trying to get out of somewhere." Carl O. reported his observation to police after seeing a picture of defendant and hearing about the case.
Clinical psychologist Richard Blak testified on behalf of the defense. Dr. Blak testified about factors affecting eyewitness identification, including the duration of the viewing and issues with cross-race identification. He opined a cross-racial identification after minimal exposure such as Carl O.'s is prone to inaccuracy.
Police arrived at Sims's apartment at around 3:30 a.m. and discovered Dutra lying on her back in a pool of blood in the middle of Sims's living room. Dutra had a faint pulse but died at the scene despite lifesaving efforts. She had three stab wounds: one in her right chest, one near her right shoulder, and one in her right arm. The wounds were about four inches deep. The wound on Dutra's chest went through the skin, between two ribs, and through her right lung, filling her right chest with over a liter and a half of blood. The wound on Dutra's arm punctured the wrist, with an exit wound on the opposite side. The stab wound near Dutra's shoulder was done with such force that it broke her clavicle.
No one else was present in the apartment when police arrived. The police found a black knife sheath in the kitchen wrapped in a white T-shirt bearing the initials A.V. on the tag. According to Adam Bailey, the recovered sheath resembled the one he had seen defendant wearing earlier that day. Vernon averred that days before the stabbing, he gave defendant a knife with a sheath. The knife was about four to five inches long. Vernon identified the sheath found in Sims's kitchen as the one he had given defendant. Sims, too, recalled that Vernon had given defendant a knife, though she thought defendant had returned it. The murder weapon was not recovered.
At trial, the prosecution also introduced a recorded interview between police and Sandra C., the mother of defendant's friend. Sandra C. reported defendant came to her house between 2:30 and 3:00 a.m. on July 9. He was tired and sweaty when he arrived. According to Sandra C., defendant left for his sister-in-law's house but returned almost immediately because there were too many police at her house. Police recovered defendant's backpack from Sandra C.'s home in which they found a document from the Merced County jail with a list of property released to defendant, that included a "knife that had a lanyard attached to it."
Sims and defendant referred to each other as brother-in-law and sister-in-law. They had known each other for approximately 10 years.
Defendant's family friend, Barbara C., also contacted police to report a phone call she received from defendant at 10:14 a.m. on July 9. Defendant asked Barbara C. to pick him up without explaining why. He also asked Barbara C. to find out whether there were any warrants for his arrest and to locate Sims.
A jury convicted defendant of first degree murder and found true the allegation defendant personally used a knife during the commission of the murder. The court sentenced defendant to 25 years to life, plus one year for the personal use enhancement.
DISCUSSION
I. Admissibility of Evidence of Third Party Culpability
Saenz argues the trial court abused its discretion in denying his motion to admit evidence to support a third party culpability defense, resulting in a violation of his rights to due process and to present a defense.
A. Background—Trial Court Excluded Evidence of Stabbing Incident Involving Sims
Before trial, pursuant to Evidence Code section 1101, subdivision (b), defendant requested admission of evidence related to Sims's December 2014 stabbing of her boyfriend, Rudy Desoto. The People argued evidence of the incident was inadmissible under section 1101.
At the time of the incident, Desoto and Sims had been in a relationship for nine years, had a child together, and lived together. In December 2014, police responded to Sims's apartment and found Desoto bleeding from stab wounds to the neck. Sims was not at the apartment when the police arrived, but she returned while they were still there. She admitted to stabbing Desoto with a paring knife from the kitchen, but said it was in self-defense during a heated domestic violence argument. The police found the paring knife in Sims's car when she returned to the scene. Sims's and Desoto's daughter, who was present during the incident, told police her dad was being mean and her mom cut him. Desoto, who is six feet tall and weighed 300-350 pounds, had consumed alcohol on the date of the offense. There was conflicting evidence as to whether Sims had been choked and whether Desoto had slammed her head against the wall. There were no physical marks on Sims observed by the officers. Days after the incident, police discovered indentations on the wall, supporting Sims's story. Sims was arrested but not prosecuted for this incident; thus, there was no resulting conviction.
The trial court held evidence of the incident to be inadmissible. It concluded it was "hard to find any reasonable similarity between the two offenses, and it's even more difficult to find sufficient similarity where it would rise to an unusual and distinctive pattern of conduct to show that the same person committed both stabbings." Accordingly, the trial court held "the evidence would not be admissible under [Evidence Code section] 1101(b) for identity purposes." It further held such evidence is "not allowed under intent to kill" and there was not "a proper basis to admit it, under common plan or scheme."
B. Standard of Review and Applicable Law
1. Admissibility of evidence of third party culpability
In People v. Hall (1986) 41 Cal.3d 826 (Hall), the California Supreme Court held that to be admissible, evidence of third party culpability must be capable of raising a reasonable doubt of the defendant's guilt. (Id. at p. 833; see People v. Davis (1995) 10 Cal.4th 463, 501 (Davis).) "[E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (Hall, supra, at p. 833.)
Notably, "Hall did not abrogate Evidence Code section 1101 as applied to such evidence." (Davis, supra, 10 Cal.4th at p. 501.) That statute provides, in relevant part:
"(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character ... is inadmissible when offered to prove his or her conduct on a specified occasion."A 'person' under the provision is any person, whether or not a defendant." (Davis, supra, 10 Cal.4th at p. 501.)
"(b) Nothing in this section prohibits the admission of evidence that a person committed a crime ... when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity ...) other than his or her disposition to commit such an act." (Evid. Code, § 1101, subds. (a), (b).)
A trial court's ruling excluding third party culpability evidence is reviewed for an abuse of discretion. (People v. Elliott (2012) 53 Cal.4th 535, 581.)
2. Defendant's constitutional right to present a defense
While a defendant has a right to present a complete defense at trial, state evidentiary rules do not ordinarily infringe upon this right. (People v. Prince (2007) 40 Cal.4th 1179, 1243.) Indeed, the United States Supreme Court has noted:
"'[T]he Constitution guarantees criminal defendants "a meaningful opportunity to present a complete defense,"' [citation], but we have also recognized that '"state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials,"' [citation]. Only rarely have we held that the right to present a complete defense was violated by the exclusion of defense evidence under a state rule of evidence." (Nevada v. Jackson (2013) 569 U.S. 505, 509.)And "rules regulating the admission of evidence proffered by criminal defendants to show that someone else committed the crime with which they are charged" "are widely accepted" as not violating a defendant's constitutional right to present a defense. (Holmes v. South Carolina (2006) 547 U.S. 319, 327.)
C. Analysis
Defendant contends the trial court erred in excluding evidence of Sims's 2014 stabbing of Desoto as evidence of third party culpability, thereby denying him his rights to due process and to present a defense. He asserts "[t]he trial court's ruling in this case constituted error, because it appears to have set too high a requirement for the degree of probative value the evidence must have in order to be admissible." And "[t]he proffered evidence was clearly substantial enough to raise a reasonable doubt as to [defendant's] guilt."
Defendant correctly notes that to be admissible, evidence of third party culpability must be capable of raising a reasonable doubt of the defendant's guilt. (See Hall, supra, 41 Cal.3d at p. 833; see also Davis, supra, 10 Cal.4th at p. 501.) But the inquiry does not end there. Even if third party culpability evidence can raise a reasonable doubt of the defendant's guilt, such evidence is still subject to Evidence Code section 1101's limitations on character evidence. (See Davis, at p. 501.) Accordingly, evidence offered to show a third party was more likely the perpetrator of a charged crime because he or she had a history of violence may be properly excluded under section 1101 where it is not offered to show a fact other than the third party's criminal disposition. (See Davis, supra, at p. 501.) "Such evidence does not amount to direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (Ibid.)
Defendant contends evidence of Sims's uncharged offense was admissible to establish identity under Evidence Code section 1101, subdivision (b) because there were "numerous substantial similarities, despite trivial distinctions" between Sims's previous assault of Desoto and Dutra's murder. He asserts both assaults: were motivated by anger (he contends Sims was angry at Dutra because she thought Dutra had taken her phone); occurred in Sims's apartment; involved knives; resulted in identical life-threatening injuries to upper torso-neck areas; and reflected Sims's callous disregard for the plight of the victims, leaving them for an extended period to bleed to death. Additionally, in both instances, Sims fled to a trusted third person and called her father before calling 911; another person called 911; and Sims provided self-serving excuses. Defendant does not argue on appeal that such evidence was admissible under section 1101, subdivision (b) to establish any fact other than identity. The People respond that Sims's uncharged offense and Dutra's murder were not sufficiently similar for Sims's stabbing of Desoto to be admissible to prove identity. We agree with the People.
To be relevant and admissible under section 1101, subdivision (b) of the Evidence Code to establish her identity as the perpetrator of the charged crime, Sims's uncharged crime had to be "highly similar" to the charged offense. (See People v. Kipp (1998) 18 Cal.4th 349, 369; see also People v. Ewoldt (1994) 7 Cal.4th 380, 403, superseded by statute on other grounds as stated in People v. Britt (2002) 104 Cal.App.4th 500, 504-505 ["The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity"].) The "'"pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature."' [Citations.]" (People v. Elliott, supra, 53 Cal.4th at p. 581.) A large number of common marks may, when viewed in combination, establish the required distinctive pattern. (Ibid.)
Here, the trial court did not abuse its discretion in concluding the characteristics of Sims's stabbing of her boyfriend during a domestic dispute and Dutra's murder are not sufficiently similar to be admissible to show identity under Evidence Code section 1101, subdivision (b). The circumstances surrounding Dutra's murder were distinct from the circumstances involved in Sims's stabbing of Desoto. Sims stabbed Desoto during a domestic dispute, allegedly in self-defense, with a paring knife; Sims and Desoto had a long-term relationship leading up to the incident; there was a history of domestic violence; and Sims admitted to stabbing Desoto after the incident. Here, there was no evidence of a long-term relationship or history of violence between Sims and Dutra; there was no evidence Dutra's stabbing took place as part of a larger dispute or that it was done in self-defense; the knives used in both incidents appeared distinct, a paring knife versus a four- to five-inch-long knife that fits in a sheath; and Sims has consistently denied any involvement in Dutra's murder and she herself reported the stabbing to the police.
True, both incidents involved a stabbing in Sims's apartment after which she fled the scene, but the alleged similarities between Sims's prior stabbing of Desoto and the current offense are not sufficiently unique or distinctive as to imprint Sims's "signature" on both. (Accord, People v. Elliott, supra, 53 Cal.4th at p. 581 ["Although the charged and uncharged offenses are similar in some respects—each involved the robbery of an armored truck guard at a business immediately after a cash pickup—those common features, whether considered separately or together, are not so unusual and distinctive as to be like a signature"]; People v. Tackett (2006) 144 Cal.App.4th 445, 449, 457 [third party's acts of reckless driving while under influence of alcohol "were not sufficiently distinctive or unique to be admissible to establish the identity of the person who was driving the truck that caused the fatal collision in this case"].) Thus, the excluded evidence was not admissible to show identity, but rather was an attempt to show Sims was more likely to have been the killer because she had a history of violence. Such evidence does not amount to direct or circumstantial evidence linking Sims to the actual perpetration of the charged crime. (See Davis, supra, 10 Cal.4th at p. 501.) Accordingly, the trial court did not abuse its discretion in excluding such evidence under section 1101, subdivision (a) of the Evidence Code. (People v. Elliott, supra, at p. 580 ["Evidence of a third party's prior crimes is inadmissible to establish the third party's criminal propensity" under Evid. Code, § 1101, subd. (a)]; In re Hardy (2007) 41 Cal.4th 977, 1008 [evidence of third party's reputation for violence is inadmissible at trial on question of third party's character].)
Because the trial court did not err in applying the rules of evidence, we similarly reject defendant's claim he was denied his constitutional right to due process and to present a defense. (Accord, People v. Prince, supra, 40 Cal.4th at p. 1243 ["'[W]e ... reject defendant's various claims that the trial court's exclusion of the proffered [third party culpability] evidence violated his federal constitutional right[] to present a defense .... There was no error under state law, and we have long observed that, "[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's [state or federal constitutional] right to present a defense"'"]; People v. Robinson (2005) 37 Cal.4th 592, 626 [similar].)
Notably, the trial court's ruling did not preclude defendant from presenting to the jury his third party culpability defense in its entirety. Defense counsel questioned both Vernon and Sims regarding whether Sims was angry with Dutra in the time leading up to the stabbing. In response to defense counsel's questions, Vernon testified that before Dutra was stabbed, Sims was upset because her phone was missing and she thought Dutra had taken it. Vernon also testified during cross-examination that Sims was so calm after the stabbing "it made [him] think that she had something to do with it." And, during closing argument, defense counsel expressly accused Sims and Vernon of the murder, arguing: "The ones who fled, the ones whose behavior indicates guilt, were [Sims] and [Vernon]. They fled. They did not seek attention. They did not seek help. They left [Dutra] to die and gave her plenty of time to do it." "They acted the way they did because they were guilty of the crime. That's the only reasonable explanation."
We reject defendant's first contention.
II. Sufficiency of Evidence of First Degree Murder
Defendant contends there was insufficient evidence of deliberate and premeditated murder, and his conviction for first degree murder must be reversed.
A. Standard of Review
On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence "'is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) The reviewing court's task is to review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—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. Bolin (1998) 18 Cal.4th 297, 331 (Bolin); People v. Johnson (1980) 26 Cal.3d 557, 578.)
"The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence." (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) It is the jury, not the appellate court, which must be convinced of a defendant's guilt beyond a reasonable doubt. (Ibid.) If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (Ibid.)
We "presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (People v. Zamudio (2008) 43 Cal.4th 327, 357.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis ... is there sufficient substantial evidence to support"' the jury's verdict. [Citation.]" (Ibid.)
B. Applicable Law—Deliberation and Premeditation
"First degree murder, like second degree murder, is the unlawful killing of a human being with malice aforethought, but has the additional elements of willfulness, premeditation, and deliberation, which trigger a heightened penalty. [Citation.]" (People v. Chiu (2014) 59 Cal.4th 155, 166.) "That mental state is uniquely subjective and personal. It requires more than a showing of intent to kill; the killer must act deliberately, carefully weighing the considerations for and against a choice to kill before he or she completes the acts that caused the death." (Ibid.)
The issue on appeal concerns the jury's finding of premeditation and deliberation. "'An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse.' [Citation.]" (People v. Pearson (2013) 56 Cal.4th 393, 443.) Premeditation "encompasses the idea that a defendant thought about or considered the act beforehand." (Ibid.) Deliberation "'"refers to careful weighing of considerations in forming a course of action."' [Citation.]" (Ibid.)
In People v. Anderson (1968) 70 Cal.2d 15, the California Supreme Court surveyed prior cases and developed guidelines to aid reviewing courts in assessing the sufficiency of the evidence to sustain findings of premeditation and deliberation. (Id. at pp. 26-33; People v. Young (2005) 34 Cal.4th 1149, 1163.) The court identified three categories of evidence pertinent to this analysis: planning, motive, and manner of killing. (Bolin, supra, 18 Cal.4th at pp. 331-332, citing Anderson, supra, at pp. 26-27.) Notably, the Anderson guidelines are "'descriptive, not normative,' and reflect the court's attempt 'to do no more than catalog common factors that had occurred in prior cases.' [Citation.]" (People v. Young, supra, at p. 1183.) Anderson does not require these factors be present in some special combination or that they be accorded a particular weight, nor is the list exhaustive. (Bolin, supra, at p. 331.) Anderson was intended to guide an appellate court's assessment whether the evidence supports an inference the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse. (Bolin, at pp. 331-332; People v. Pride (1992) 3 Cal.4th 195, 246-247.)
C. Analysis
Defendant contends his first degree murder conviction cannot stand because the evidence does not support the jury's conclusion the murder was deliberate and premeditated. Rather, he argues the attack on Dutra "was, at the very most, the result of a rash impulse to kill that was hastily executed without any conceivable reason. It was spontaneous, and completely unexpected." And "[t]he record does not reveal that [he] formed an intent to kill 'on preexisting reflection' 'resulting from careful thought and weighing of considerations.'" We disagree.
"'The process of premeditation and deliberation does not require any extended period of time.'" (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) "'"The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly."' [Citation.]" (Ibid.) The fundamental inquiry is whether a rational jury could have concluded the crime occurred as the result of preexisting reflection rather than a rash or unconsidered impulse. (People v. Sanchez (1995) 12 Cal.4th 1, 33, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Felix (2009) 172 Cal.App.4th 1618, 1626.)
In People v. Harris (2008) 43 Cal.4th 1269, Marta took her daughter Alba to work with her at a donut shop. (Id. at p. 1277.) Marta left to get supplies and tapped on the door when she returned, signaling to Alba to open it. (Ibid.) As Alba approached the door, she saw the defendant standing at the service window. (Ibid.) Alba unsuccessfully attempted to open the door for Marta, and then went to wait on the defendant. (Ibid.) Alba took the defendant's order and began to prepare it when the defendant attacked and killed Marta with a butcher knife. (Ibid.) The Harris court held there was sufficient evidence of premeditation and deliberation and explained: "In the time it took for Alba to go from the door to the service window, and to take and prepare defendant's order, there was ample time for him to deliberate and premeditate before attacking Marta." (Id. at p. 1287.)
As in People v. Harris, here, there was sufficient evidence of premeditation and deliberation. Although defendant's motive is unclear, there is circumstantial evidence of planning activity. The prosecution presented evidence defendant rose from the futon while concealing a knife in a white T-shirt, walked to the kitchen where he disposed of the white T-shirt and a knife sheath, and returned to the living room before stabbing Dutra in multiple places. There was no evidence of provocation. And, regarding the manner of killing, defendant used enough force to break Dutra's clavicle, pierce through her wrist, and puncture her right lung, resulting in her death.
The prosecutor was not required to prove motive. (E.g., People v. Halvorsen, (2007) 42 Cal.4th 379, 421 ["[The Supreme Court has] '"never required the prosecution to prove a specific motive before affirming a judgment, even one of first degree murder. A senseless, random, but premeditated, killing supports a verdict of first degree murder"'"]; see People v. Thomas (1992) 2 Cal.4th 489, 519 [same]; see People v. Larrios (1934) 220 Cal. 236, 251; CALJIC No. 2.51; CALCRIM No. 370.) --------
Viewing the evidence in the light most favorable to the verdict, as we must, the jury could reasonably have concluded defendant's movement from the futon to the kitchen while concealing the knife to better position himself to stab Dutra, coupled with the lack of apparent provocation, and the severity of Dutra's injuries supported a conclusion the murder was deliberate and premeditated. (See People v. Harris, supra, 43 Cal.4th at pp. 1286-1287 [sufficient evidence of premeditation and deliberation where defendant was armed with knife and stabbed victim without provocation directly in heart with enough force to penetrate rib and pierce heart]; People v. Perez (1992) 2 Cal.4th 1117, 1129 ["Defendant's obtaining of the steak knife from the kitchen is indicative of planning activity"]; People v. Morris (1959) 174 Cal.App.2d 193, 197 [stab wounds to chest and heart, absence of immediate provocation, and readiness of weapon were consistent with jury's conclusion killing was premeditated and not result of "'rash impulse hastily executed'"]; see also People v. Cook (1940) 15 Cal.2d 507, 516 [jury may determine whether premeditation exists "from a consideration of the type of weapon employed and the manner of its use; the nature of the wounds suffered by the [victim]; the fact that the attack was unprovoked and that the [victim] was unarmed at the time of the assault; the conduct of [the] assailant in ... neglecting to aid [the victim] ..., and [the assailant's] immediate flight thereafter from the scene of the assault"].)
We reject defendant's second contention.
DISPOSITION
The judgment is affirmed.
/s/_________
PEÑA, Acting P.J. WE CONCUR: /s/_________
MEEHAN, J. /s/_________
DESANTOS, J.