Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura No. 2005014863, Rebecca S. Riley, Judge
Diane E. Berley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, David F.Glassman, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Mario Flores Tapia appeals from the judgment entered following his conviction by a jury of willful, deliberate, and premeditated attempted murder (Pen. Code, §§ 664, 187, subd. (a), 189) and assault with a deadly weapon. (§ 245, subd. (a)(1).) As to both offenses, the jury found true allegations that appellant had personally inflicted great bodily injury. (§ 12022.7, subd. (a).) As to the attempted murder, the jury also found true an allegation that appellant had personally used a deadly weapon. (§ 12022, subd. (b)(1).) On the attempted murder conviction, the trial court sentenced appellant to life imprisonment with the possibility of parole. It stayed imposition or execution of the sentences on the enhancements. On the assault with a deadly weapon conviction, the trial court imposed the three-year middle term plus three years for the great bodily injury enhancement. Execution of these sentences was stayed pursuant to section 654.
All statutory references are to the Penal Code.
Appellant contends that the evidence is insufficient to support the jury's finding that the attempted murder was deliberate and premeditated. We disagree. Appellant concedes that, by staying the sentences on the enhancements pertaining to the attempted murder conviction, the trial court pronounced an unauthorized sentence. We vacate the stay of the sentences on these enhancements and affirm the judgment in all other respects.
Facts
Appellant and Elba Camacho were never formally married, but they lived together for about nine or ten years and had two daughters. They rented a room from Juana Munoz in a residence in Thousand Oaks. Gerardo Lopez, Munoz's adult son and the victim of the attempted murder, also lived at the residence. Appellant told Camacho that he was jealous of Lopez.
Appellant and Camacho separated, and appellant moved out of the Munoz residence. For several months after the separation, Camacho continued to live there with her daughters. One night at about 1:00 a.m., appellant came to the Munoz residence and asked to see Camacho. Lopez told him to come back in the morning. Appellant became angry and hit Lopez three or four times. Lopez's mother told appellant "to stop looking for trouble." At that point, appellant left the residence. While he was walking away, appellant said that he was going to kill Lopez and that Lopez "would pay for it."
One day Lopez was talking to Camacho in a park. Appellant arrived and hit Lopez with his fists. Lopez ran away. On another occasion, Lopez was conversing with Camacho at her place of work when appellant "hit him from behind on the face."
Camacho moved to a different residence in Thousand Oaks. In the evening on May 1, 2005, Lopez parked his car on the street in front of her residence. Camacho walked to the passenger side of the vehicle, where she conversed with Lopez for about three minutes. Camacho then went inside the residence to look for a document that Lopez needed. Lopez waited in his car for between eight and ten minutes.
Appellant drove a large pickup truck toward the front of Lopez's car and switched on the truck's high beams. Because of the bright light, Lopez had difficulty seeing. Appellant stopped about three feet to the side of Lopez's car and exited the truck. Through the open driver's window of the car, he repeatedly stabbed Lopez with a knife "all over [his] body." During the attack, appellant said several times that he was going to kill Lopez.
Lopez got out of his car and ran toward Camacho's residence. Appellant chased Lopez while yelling that he was going to kill him. Camacho came out of her residence and walked toward appellant. She told him to "[l]eave [Lopez] alone." Appellant replied, "I'm gonna kill him. I'm gonna kill him." Appellant "grabbed" Camacho and tried "to take her away with him." Appellant said to Camacho: "Does it hurt you that I did that to him?" Camacho broke loose from appellant and went to assist Lopez. Appellant drove away in his truck and fled to Mexico.
Lopez had "multiple traumatic injuries to his neck, chest, left arm, and abdomen." Some of Lopez's stab wounds were life-threatening. These included "a major laceration of the neck" and "three separate lacerations on his left chest, one of which produced collapse of the left lung." A doctor testified, "[A]ny of those injuries [on his left chest] could have penetrated into his heart . . . ." At the time of trial, Lopez had not regained full use of his left arm.
In his defense, appellant testified as follows: He blamed Lopez for the breakup of his relationship with Camacho. He believed that Lopez and Camacho were lovers. In the evening on May 1, 2005, appellant drove to Camacho's residence. He wanted "to check out . . . the house where [his] daughters had moved in." Upon arriving at Camacho's residence, he saw Lopez inside a car parked on the street. Appellant had not expected to find Lopez at the location. He was "furious" and "jealous." He thought that Lopez was waiting for Camacho. Appellant remembered stabbing Lopez, but he remembered little else about the incident. When appellant drove away in his truck, he thought that he had killed Lopez. That same night, appellant's brother drove him to Tijuana.
Sufficiency of the Evidence
Appellant contends that the evidence is insufficient to support the jury's finding that the attempted murder was deliberate and premeditated. "[W]e review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence that is reasonable, credible and of solid value - from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Snow (2003) 30 Cal.4th 43, 66.) We must " ' "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' [Citation.]" (People v. Rayford (1994) 9 Cal.4th 1, 23.) "[I]t is not within our province to reweigh the evidence or redetermine issues of credibility. [Citation.]" (People v. Martinez (2003) 113 Cal.App.4th 400, 412.) '[A]ll conflicts in the evidence . . . must be resolved in favor of the judgment. [Citations.]" (People v. Mitchell (1986) 183 Cal.App.3d 325, 329.) "Reversal . . . is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
"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.] 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. . . .' " ' [Citations.] [¶] '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. [Citation.] However, '[w]hen the record discloses evidence in all three categories, the verdict generally will be sustained.' [Citation.]" (People v. Stitely (2005) 35 Cal.4th 514, 543.)
Here the record discloses evidence in all three categories. Appellant had a motive to kill Lopez. He was jealous because he believed that Lopez was Camacho's lover. Appellant blamed Lopez for the breakup of his relationship with Camacho. Moreover, the jury could have reasonably inferred that appellant wanted to kill Lopez to inflict emotional pain on Camacho. Immediately after the stabbing, appellant said to her, "Does it hurt you that I did that to him?"
There is also evidence of planning activity. After assaulting Lopez at the Munoz residence, appellant said that he was going to kill Lopez and that Lopez "would pay for it." Moreover, the jury could have reasonably inferred that, when appellant saw Lopez seated inside the car in front of Camacho's residence, he switched on his high beams to blind Lopez, thus rendering him more vulnerable to attack. "This conduct clearly shows that [appellant] thought before he acted." (People v. Villegas (2001) 92 Cal.App.4th 1217, 1224.)
Finally, the manner of the attempted killing suggests deliberation and premeditation because it "shows a calculated design to ensure death rather than an unconsidered explosion of violence. [Citation.]" (People v. Horning (2004) 34 Cal.4th 871, 902-903.) Appellant stabbed Lopez multiple times while saying that he was going to kill him. When Lopez exited his car and ran toward Camacho's residence, appellant chased him and continued to threaten him with death. When Camacho told appellant to "[l]eave [Lopez] alone," appellant replied, "I'm gonna kill him. I'm gonna kill him." Lopez's life-threatening injuries included three stab wounds to the left chest and one stab wound to the neck.
"In sum, we find that a reasonable jury could have returned a guilty verdict on a willful, deliberate, and premeditated killing theory of [attempted] first degree murder . . . . We therefore reject [appellant's challenge] to the sufficiency of the evidence." (People v. Elliot (2005) 37 Cal.4th 453, 471.)
Sentencing on Attempted Murder Enhancements
As to the attempted murder conviction, the jury found true enhancement allegations that appellant had personally inflicted great bodily injury (§ 12022.7, subd. (a)) and had personally used a deadly weapon. (§ 12022, subd. (b)(1).) The trial court did not strike these enhancements. Instead, it stayed imposition or execution of sentence on the enhancements. In a supplemental letter brief, appellant concedes that the stay resulted in an unauthorized sentence subject to correction on appeal. (People v. Langston (2004) 33 Cal.4th 1237, 1241; People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1121-1124; People v. Calhoun (1983) 141 Cal.App.3d 117, 124-125.) Appellant states, "This matter should be remanded to the trial court for resentencing as to the enhancements. [Citation.] In the alternative, this Court may modify the judgment to include the enhancements. (Pen. Code, § 1260.)"
In the interest of judicial economy, we adopt appellant's suggested alternative of modifying "the judgment to include the enhancements." We vacate the stay and modify the judgment to impose a three-year consecutive sentence on the great bodily injury enhancement and a one year consecutive sentence on the deadly weapon use enhancement.
Disposition
The stay of the sentences on the enhancements (§§ 12022.7, subd. (a), 12022, subd. (b)(1)) pertaining to the first degree attempted murder conviction is vacated. The judgment is modified to impose a consecutive three-year sentence on the section 12022.7, subdivision (a), enhancement and a one year consecutive sentence on the section 12022, subdivision (b)(1), enhancement. The trial court is directed to prepare an amended abstract of judgment reflecting the corrected sentences and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J.