People v. Alvarado CA5 ( 2014 )

Filed 10/3/14 P. v. Alvarado CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F066255
Plaintiff and Respondent,
(Super. Ct. Nos. VCF236535 &
v. VCF252005)
VICTOR ALPHONSO ALVARADO,
OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tulare County. Darryl B.
Ferguson, Judge.
Robert D. Bacon, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Paul A.
Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury found defendant Victor Alvarado guilty of first degree murder (Pen. Code,1
§ 187, subd. (a)) and possession of a firearm by a convicted felon (former § 12021,
subd. (a)(1).2 The jury also found true allegations supporting a gang special
circumstance (§ 190.2, subd. (a)(22)) and gang and firearm enhancements (§§ 186.22,
subd. (b)(1)(C), and 12022.53, subd. (d).)
At trial, defendant admitted that he shot the victim but testified he did so out of
jealous anger, not because he believed the victim was from a rival gang. On appeal,
defendant contends that the evidence was insufficient to establish the “primary activities”
element of the gang allegations and that the trial abused its discretion by allowing an
officer to testify in unreasonable detail about the criminal activity of others. He also
challenges the finding of premeditation, arguing the evidence did not show premeditation
and the jury instruction on the issue was misleading.
We affirm.
FACTS AND PROCEDURAL HISTORY
Beginning in 2007, defendant and Jessica Yanez had an “off and on” dating
relationship, and had a child together in 2010. In late April 2011, Yanez, who had been
living with her mother, began staying at a Motel 6 in Porterville. According to Yanez,
she and defendant had been broken up for “some months,” but they reconciled while she
was staying at the motel.3 On May 1, 2011, Yanez and defendant drank alcohol in her
motel room, and she did not remember much of what happened that night. According to
defendant, he left Yanez’s motel room that night at about 9:30 p.m.
1 Subsequent statutory references are to the Penal Code unless otherwise specified.
2 Section 12021, subdivision (a)(1), has since been recodified as section 29800.
3 Defendant similarly testified that they broke up in February 2011 and got back together
right before May 2011.
2.
Kayla Cantu was Yanez’s friend. She was “on the run from [her] probation
officer” and was staying with Yanez in her motel room. Cantu testified that she
associated with Northerners and would never hang out with Southerners.4 She was
dating Leo Alvarado, and they spent a lot of time together.5 Late in the evening of
May 1, 2011, Leo and his friend Edgar Arias went to hang out in Yanez’s motel room.
Leo was wearing a white shirt and a red hat with a “C” on it for the Cincinnati Reds.
Arias was wearing a black and silver Angels hat. After the young men arrived, Cantu and
Yanez smoked marijuana. At that point, Leo, Arias, Cantu, and Yanez were in the motel
room.
Soon after Leo and Arias arrived, Arias heard whispering and a low-toned voice
outside. Arias opened the motel room door to see who was talking and Yanez and
defendant seemed to be having a normal conversation. About a minute or two later,
defendant appeared at the doorway.
Defendant stepped in the doorway of the motel room and looked around. Arias
testified that defendant asked, “Oh, you guys gangsters or something?” and “Are you
guys busters?” Arias remembered that defendant said, “Que paso, besse?” and then
asked them in English if they bang. According to Cantu, defendant said “What the fuck,
Jessica?” or “Jessica” to Yanez and did not say anything else. Cantu also testified that
defendant was mumbling and she did not understand. Defendant looked around, then
looked directly at Leo, and shot him. Arias thought defendant stood at the doorway for
“[m]aybe a minute” before he started shooting. Arias heard two shots. He was afraid
that defendant was going to shoot him, so he crouched down. When Arias looked up,
4 A gang expert testified that Northerners and Southerners are rival gangs.
5 Because Leo Alvarado shares the last name of defendant, we will refer to him as Leo to
avoid confusion. No disrespect is intended. Cantu testified that Leo had hung out in the motel
room with her four or five times before May 1, 2011.
3.
defendant was gone. He saw Yanez and Cantu run out of the room. Arias shut and
locked the motel room door and called 911. Arias had never met Cantu or Yanez before
that night, and he did not know defendant.
Porterville police officer Mark Lightfoot was dispatched to the Motel 6 at
12:11 a.m. on May 2, 2011. In Yanez’s room, Lightfoot found Leo’s body lying on the
floor just inside the doorway at the foot of a bed. Leo did not have a pulse. He died from
a single gunshot wound to the head. The entry wound was near his nose; the powder
stippling around the wound indicated that he had been shot from a distance of two to ten
feet. The bullet lodged in his spinal canal and was recovered during an autopsy.
Defendant was identified as a suspect. The police already had his cell phone
number from a previous criminal investigation and were able to track defendant’s
location based on information from his carrier. He was arrested near his residence
without incident. After the arrest, police officers reviewed the text messages on
defendant’s cell phone. They found texts between defendant and someone identified as
“Rascal.” Sergeant Brian Nix knew that Jose Astorga went by the moniker or nickname
“Rascal.”6 Astorga also happened to be staying with his aunt and cousins at the same
Motel 6 in Porterville.
It appeared to the officers from the text messages that defendant and Astorga were
trying to make arrangements to pick up a gun. At 11:17 p.m. on the night of the shooting,
defendant sent a text message to Astorga asking where he was. Astorga responded that
he was at Motel 6 and defendant should be on the look out if he comes. At 11:22 p.m.,
Astorga texted to defendant, “Ur gona want the slut?” An officer testified that “slut”
referred to a gun. At 11:44 p.m., defendant responded, “Yea wer u at.” Around
6 Astorga was a Southern gang member in a subset called Campo Loco. At trial, Astorga
was called as a witness, and the jury learned that he was involved in a separate gang-related
murder case and another gang-related attempted murder case. In both cases, he entered pleas.
4.
6:50 a.m. on May 2, 2011, defendant sent Astorga texts asking what was going on and
whether there were police or ambulance at the motel. At 7:00 a.m., defendant texted,
“Orale hey ese I drop dat shit.” Later, defendant texted, “Well I want 2 pick dat shit up
it’s rite there wer ur at in da water.” Astorga texted that he would get it, but subsequently
texted that he “didnt find it.”
Based on the text messages, police officer Robert Meier was able to determine the
area where defendant left the gun after the shooting. Meier found a semiautomatic
handgun in an inch of water in a slough at Indiana Street near the motel.7 There was a
live round in the chamber and two live rounds in the magazine of the handgun.
Meier also processed the crime scene. In the motel room, he found a Cincinnati
Reds baseball cap, alcohol containers, and a .25 auto caliber shell casing. Meier observed
a bullet hole in the wall and recovered the bullet. The alcohol containers were collected
for fingerprint testing, and prints taken from the containers matched defendant, Yanez,
and Leo. A forensic firearms examiner later concluded that the bullet found in Leo’s
body and the bullet taken from the motel room wall were fired from the handgun Meier
found in the water.
Police officer Vincent Buck participated in a search of defendant’s house and
found evidence of gang involvement. The front door of defendant’s bedroom had the
number 13 in metal numbers. There were CD’s of gang-related music and movies, and
the clothing in the room was mostly blue, white, or black. Buck found a black baseball
hat with “TC” on the front8 and a wooden box with Southern gang symbols. He also
7 Defendant’s text indicated the gun (“dat shit”) was in the water near where Astorga was
staying (“rite there wer ur at”). Meier explained there was a slough that ran behind the Motel 6.
Meier walked down to the slough and then walked a path he thought defendant would have taken
to get away and looked in areas defendant could have left the gun so that it could be found later
(e.g., not in deep water).
8 Buck testified that the “TC” hat identifies the wearer as a gang member from Tulare
County.
5.
found a letter addressed to defendant from Jose Gonzalez. Jose Gonzalez and his brother
Rafael Gonzalez9 were Southern gang members. The letter from Jose included
photocopies of police reports Buck had written for a homicide investigation in which Jose
and Rafael were suspects. The photocopied reports had been redacted, i.e., the
identifying information about victims and witnesses had been removed. Above the
redacted areas, however, the names of the witnesses were handwritten in pencil. At the
time Buck searched defendant’s house, Jose and Rafael Gonzalez were waiting for trial in
the homicide case. They later entered pleas. We will sometimes refer to this case as the
Gonzalez brothers’ homicide case.
On December 20, 2011, the Tulare County District Attorney filed a two-count
information against defendant, charging him with murder (§ 187, subd. (a); count 1) and
possession of a firearm by a felon (former § 12021, subd. (a)(1); count 2). With respect
to count 1, the district attorney further alleged (1) defendant intentionally killed Leo
Alvarado while defendant was an active participant in a criminal street gang and the
murder was carried out to further the activities of the criminal street gang (§ 190.2,
subd. (a)(22)), (2) defendant personally and intentionally used and discharged a firearm
causing death (§ 12022.53, subds. (b), (c), and (d)), and (3) the offense was committed
for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)).
A jury trial began on September 18, 2012.
Police officer Joe Echevarria, who worked in the gang unit and had 16 years’ law
enforcement experience, testified as a gang expert. As part of the gang unit, he
participated in searches of gang members’ houses, made contact with gang members, and
investigated crimes in which gang members were suspects. He was familiar with the
Southern gang in Porterville. There were about 150-200 Southerners in Porterville and
9 There are are four Gonzalez brothers—Jose, Rafael, Juan, and Norberto. We sometimes
refer to them by their first names only for the sake of brevity.
6.
approximately 1,500 in Tulare County. Southerners identify with the color blue and the
numbers 13 and 3. Their rivals are the Northerners, who are associated with the color red
and the numbers 14 and 4. Among Southerners, there are many subsets or cliques. In
Porterville, some of the Southern cliques are the Wicked Side Varrio or WSV, Campo
Loco or CL, and Brown Pride Sureños. Members of the different cliques join together to
commit crime. Echevarria testified that the primary activities of the Southern gang in
Porterville include homicide, assaults, batteries, burglaries, drug sales, gun possession,
gun sales, carjackings, extortion, witness intimidation, and vandalism.
Echevarria described two predicate offenses committed by Southerners. First, in
September 2008, Eddie Villegas, a Southern gang member, threatened victims with
bricks. In that case, Villegas was convicted of vandalism, and he admitted a gang
allegation. Second, in September 2007, Juan Gonzalez,10 a Southern gang member, was
involved in a drive-by shooting. Defendant was in the car with Juan at the time. They
pulled up next to a Northern gang member, and Juan fired a few rounds, hitting the victim
in the hand. Juan Gonzalez entered a plea and admitted a gang allegation.
Echevarria was familiar with defendant from prior police contacts. In addition, he
spoke to other police officers about defendant and reviewed police records and law
enforcement records from other agencies regarding defendant. Based on this
information, Echevarria opined that defendant was an active Southern gang member.
Buck also testified as a gang expert. He explained that the Cincinnati Reds cap
worn by the shooting victim, Leo, identified him as a member of VCP, Varrio Centro
Porros, a Northern clique found in central Porterville. Buck further explained that if a
nongang member were to wear a Reds hat in Porterville, he would be “hit up” by gang
members, meaning they would ask the person why he is wearing the hat. In 2007, Leo
10 Juan is a brother of Jose Gonzalez, whose letter to defendant containing redacted police
reports in the Gonzalez brothers’ homicide case was found in a search of defendant’s house.
7.
admitted to the police that he was a Northerner. At that time, he was in a truck with three
others, all of whom also admitted to being Northerners. One of them was a high ranking
member of VCP. Buck explained that “buster” is a derogatory term for a Northerner and
the term is used primarily by Southern gang members.
Defendant has three brothers. Buck was familiar with them and testified they were
all gang members. In 2006, Buck investigated a gang-related attempted murder in which
defendant’s family was targeted. In that case, two Northern gang members drove by
defendant’s house and shot at it. Defendant’s home had been targeted at two different
locations. In a more recent incident, defendant’s mother was shot, and the family moved
shortly thereafter in February 2011.
Buck testified about photographs of defendant with other known gang members.11
The first photograph showed defendant between Jose and Rafael Gonzalez. A second
photograph showed Jose Gonzalez, defendant, Juan Gonzalez, defendant’s younger
brother Santiago Alvarado, and Rafael Gonzalez. In this photo, Jose held his finger up
for the number one, defendant was wearing his shirt with only the top three buttons
buttoned, an identifier of Southerners, Juan was wearing a blue bandanna and holding a
weapon, Santiago was forming the letters “C” and “L” for Campo Loco with his fingers,
and Rafael was holding his fingers to form the number three, which together with Jose
formed the number 13. Buck explained that defendant, Juan Gonzalez, and Rafael
Gonzalez claimed the clique Wicked Side Varrio, Santiago Alvarado claimed Campo
Loco, and Jose Gonzalez represented the clique East Side Trece, but they all were
Southerner gang members.
A third photograph depicted brothers Rafael and Norberto Gonzalez with
defendant and his brothers Francisco and Santiago Alvarado. They all wore T-shirts that
11 Buck found the photographs during a search conducted during his investigation of the
Gonzalez brothers’ homicide case.
8.
read “In memory of Eduardo Luna, AKA Luny’s.” Eduardo was the youngest brother of
the Luna family. His two older brothers were Southern gang members, and the Luna
family lived on “G” Street in Porterville. Buck testified that in 2006, the Northerners
were trying to do a “move out” of the older Luna brothers. Buck explained that a “move
out” is “where gang members continuously shoot or vandalize or disrupt somebody’s
house in an effort to [get them to] move out of their area so they can show dominance or
control of that area.” Eduardo Luna was shot by a VCP gang member because his
brothers would not move out of the neighborhood. Buck testified that after Eduardo’s
death, the Gonzalez brothers and defendant and his brothers formed the clique Wicked
Side Varrio.
Buck was presented the hypothetical situation that a Southern gang member shows
up at a motel room and sees his girlfriend, who is also the mother of his baby, and
another girl with two men, one of whom is wearing a Cincinnati Reds hat, and the
Southern gang member shoots the man in the Reds hat. Buck gave his opinion that the
shooting would be committed for the benefit of the gang. He explained that the Southern
gang member would perceive a person wearing a Cincinnati Reds hat in the same room
with his girlfriend as disrespectful. The Southern gang member would be expected to
respond to that disrespect. In addition, the shooting would elevate the Southern gang
member’s status because he “is taking out a rival gang member.”
Defendant testified on his own behalf. He testified that he not did know Leo or
Arias. Defendant went to Yanez’s motel room around 7:00 p.m. on May 1, 2011. He
testified that he already had a gun when he went to visit Yanez. He explained that he had
a gun, “Because prior to going there, I had got robbed from my paycheck.” Cantu and
Yanez were in the room, and defendant started drinking with Yanez. Around 9:00 or
9:30 p.m., defendant and Yanez argued. They were both drunk, and defendant could not
recall what they argued about. He left the room and started walking. Then he texted with
9.
his friend Astorga. About 10:00 p.m., defendant realized Astorga was staying at the
Motel 6 and went to Astorga’s room. They hung out in Astorga’s room for a while.
Defendant “cooled off” and decided to apologize to Yanez. He walked toward
Yanez’s motel room and saw her come out of the room. Defendant and Yanez were
outside and defendant was trying to apologize when he saw a person’s head stick out of
Yanez’s motel room. Defendant thought “it was a guy’s head.” He became angry and
believed Yanez was cheating on him. He screamed at Yanez and said, “What the fuck?”
and then went to the motel room and started banging on the door. Defendant testified,
“When this guy opens the door, I just lose it. I get mad and angry and just shoot him.”
He did not remember saying “Que paso, besse?” and denied saying anything to the young
men in the motel room. He testified that he stood at the doorway for five seconds before
he shot Leo. He did not pay attention to what Leo was wearing. He did not see Arias or
Cantu in the room. Then defendant took off running. He did not realize he dropped the
gun.
Defendant testified that he was not a Southerner, he “just talked to [S]outherners.”
On cross-examination, defendant agreed that Northerners were his enemies and stated
that he had been a Southerner for five years. (He was 20 years old at the time of the
shooting.) Later in cross-examination, defendant reiterated that he associated with
Southerners but he was not a gang member. He testified that he did not know what
Northerners wear and that a Cincinnati Reds hat can mean “[w]hat they want.”
Defendant denied he texted with Astorga about a gun. He testified that he thought
“slut” (in Astorga’s text “Ur gona want the slut?”) referred to a girl. On cross-
examination, he was asked whether “picking that shit up” referred to a gun, and he
responded that he did not remember.
On September 21, 2012, the jury found defendant guilty of both counts and found
true all special allegations.
10.
The sentencing hearing took place on October 18, 2012. For count 1, the court
imposed a term of life without the possibility of parole plus 40 years to life for the
enhancements. For count 2, the court imposed the middle term of two years to be served
concurrently.
Defendant filed a notice of appeal on November 26, 2012.
DISCUSSION
I. Sufficiency of evidence on the gang’s primary activities
Under section 190.2, subdivision (a)(22), a defendant found guilty of first degree
murder is subject to the death penalty or life imprisonment without the possibility of
parole if “[t]he defendant intentionally killed the victim while the defendant was an
active participant in a criminal street gang, as defined in subdivision (f) of
Section 186.22, and the murder was carried out to further the activities of the criminal
street gang.”
A “‘criminal street gang’” is defined in section 186.22, subdivision (f), as “any
ongoing organization, association, or group of three or more persons, whether formal or
informal, having as one of its primary activities the commission of one or more of the
criminal acts enumerated …, having a common name or common identifying sign or
symbol, and whose members individually or collectively engage in or have engaged in a
pattern of criminal gang activity.” (Italics added.) The enumerated criminal acts listed in
subdivision (e) of section 186.22 include assault with a deadly weapon, homicide or
manslaughter, sale of controlled substances, shooting at an inhabited dwelling or
occupied motor vehicle, shooting from a motor vehicle, intimidation of witnesses, grand
theft, burglary, felony extortion, felony vandalism, carjacking, sale and possession of
firearms, and car theft. (§ 186.22, subd. (e)(1), (3)-(6), (8), (9), (11), (19)-(23), (25).)
In this case, the jury found true the gang-related special circumstance and
enhancement allegations. Defendant contends that the evidence was insufficient to
11.
establish the “primary activities” element of the special circumstance and enhancement.
We disagree.
In deciding a challenge to the sufficiency of the evidence, we “examine the whole
record in the light most favorable to the judgment to determine whether it discloses
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. Kraft (2000) 23 Cal. 4th 978, 1053.) We presume in support of the judgment
the existence of every fact the jury reasonably could deduce from the evidence. (Ibid.)
In People v. Gardeley (1996) 14 Cal. 4th 605, 617, 620 (Gardeley), a gang expert
testified that the primary activity of the Family Crip gang was the sale of narcotics and
the gang also engaged in witness intimidation. The expert’s testimony was based on his
conversations with gang members, personal investigation of crimes committed by gang
members and information from his colleagues and various law enforcement agencies.
(Ibid.) Our Supreme Court concluded the expert’s testimony was sufficient for the jury
to find that the Family Crip was a criminal street gang, including the element that one of
its primary activities was the commission of one or more of the crimes enumerated in
section 186.22, subdivision (e). (Gardeley, supra, at p. 620.)
Here, Echevarria was asked what the primary activities of Southern gangs in
Porterville were. He replied, “Ranges from homicide, assaults, batteries, burglaries, drug
sales, gun possession, gun … [s]ales, carjackings, car thefts, grand theft, extortion, victim
witness intimidation, vandalism. To name a few.” Echevarria’s expert opinion, like the
expert’s opinion in Gardeley, was based on his own contacts with defendant and other
gang members, investigations of crimes committed by gang members, and information
from police officers and other law enforcement agencies. Accordingly, Echevarria’s
testimony was sufficient evidence to support a finding that the identified crimes were one
of the primary activities of the Southerners.
12.
Defendant argues this case is similar to In re Alexander L. (2007) 149 Cal. App. 4th
605, 614 (Alexander L.) in which the court concluded there was insufficient evidence to
support a finding that the gang at issue, Varrio Viejo, was a criminal street gang for
purposes of section 186.22. We are not persuaded.
In Alexander L., the gang expert’s testimony was as follows:
“At trial, Lang testified as a gang expert. He testified generally
about the benefits graffiti might create for a gang, such as intimidating
rivals. He also stated his opinion that Varrio Viejo was an active street
gang as of the date of [the defendant’s] arrest. When asked about the
primary activities of the gang, he replied: ‘I know they’ve committed quite
a few assaults with a deadly weapon, several assaults. I know they’ve been
involved in murders. [¶] I know they’ve been involved with auto thefts,
auto/vehicle burglaries, felony graffiti, narcotic violations.’ No further
questions were asked about the gang’s primary activities on direct or
redirect examination.” (Alexander L., supra, 149 Cal.App.4th at p. 611.)
The Court of Appeal concluded the gang expert’s testimony was inadequate,
explaining: “Lang’s entire testimony on this point is quoted above—he ‘kn[e]w’ that the
gang had been involved in certain crimes. No specifics were elicited as to the
circumstances of these crimes, or where, when, or how Lang had obtained the
information. He did not directly testify that criminal activities constituted Varrio Viejo’s
primary activities. Indeed, on cross-examination, Lang testified that the vast majority of
cases connected to Varrio Viejo that he had run across were graffiti related.”
(Alexander L., supra, 149 Cal.App.4th at pp. 611-612, fn. omitted.)
The court continued: “Even if we could reasonably infer that Lang meant that the
primary activities of the gang were the crimes to which he referred, his testimony lacked
an adequate foundation.… [¶] We cannot know whether the basis of Lang’s testimony
on this point was reliable, because information establishing reliability was never elicited
from him at trial. It is impossible to tell whether his claimed knowledge of the gang’s
activities might have been based on highly reliable sources, such as court records of
convictions, or entirely unreliable hearsay. [Citation.] Lang’s conclusory testimony
13.
cannot be considered substantial evidence as to the nature of the gang’s primary
activities.” (Alexander L., supra, 149 Cal.App.4th at p. 612, fns. omitted.)
We conclude the gang experts’ testimony in the present case is distinguishable
from—and far more substantial than—the testimony in Alexander L. First, the
Alexander L. court determined that the gang expert did not directly testify that criminal
activities constituted Varrio Viejo’s primary activities. (Alexander L., supra, 149
Cal.App.4th at pp. 611-612.) Here, Echevarria identified various crimes as the
Southerners’ primary activities.
Second, in Alexander L., the gang expert testified that the vast majority of cases
connected to Varrio Viejo that he had run across were related to graffiti. In the present
case, there was no similar testimony that the vast majority of cases involving Southerners
were minor or did not involve crimes enumerated in section 186.22, subdivision (e).
Instead, considering Echevarria’s testimony together with Buck’s and Astorga’s
testimony, the jury learned that Southern gang members threatened victims with bricks
(Villegas) , committed a drive-by shooting (Juan Gonzalez), and were involved in
murders (Gonzalez brothers, Astorga) and an attempted murder (Astorga).
Third and perhaps most important, in Alexander L., there was no evidence on how
the gang expert obtained his information. Here, in contrast, there was evidence of the
basis for Echevarria’s opinion. He had served in the gang unit and had 16 years’ law
enforcement experience, and he testified that he had prior personal contacts with
defendant and other gang members, he had investigated crimes committed by gang
members, and he obtained information from other police officers and other law
enforcement agencies. For these reasons, defendant’s reliance on Alexander L. is
unavailing.
Defendant next asserts: “A judgment concerning what is and is not a primary
activity cannot be based on an assessment of the group’s criminal activities alone. It
demands familiarity with all the group’s activities, criminal and otherwise, so that the
14.
number and nature of the enumerated crimes committed by its members on its behalf can
be assessed in context.” Defendant cites no authority for the proposition that there must
be evidence of a gang’s noncriminal activities in order to assess whether its criminal
activities are one of its primary activities. To the contrary, the authority cited by
defendant supports our conclusion that the expert testimony in this case was sufficient to
establish that commission of the crimes identified by Echevarria was among the Southern
gang’s primary activities.
Defendant cites People v. Sengpadychith (2001) 26 Cal. 4th 316, 323-324
(Sengpadychith), in which the California Supreme Court considered the “primary
activities” element of section 186.22, subdivision (f). In that case, the court observed that
evidence of past commission of an enumerated crime by gang members by itself may not
necessarily be sufficient to establish the primary activities of the gang. The court
explained: “The phrase ‘primary activities,’ as used in the gang statute, implies that the
commission of one or more of the statutorily enumerated crimes be one of the group’s
‘chief’ or ‘principal’ occupations. (See Webster’s Internat. Dict. (2d ed. 1942) p. 1963
[defining ‘primary’].) That definition would necessarily exclude the occasional
commission of those crimes by the group’s members.” (Sengpadychith, supra, at p. 323.)
The Sengpadychith court recognized that sufficient proof of a group’s primary
activities could consist of expert testimony, such as the gang expert testimony in
Gardeley, supra, 14 Cal. 4th 605. (Sengpadychith, supra, 26 Cal.4th at p. 324.) The
court, however, did not require an assessment of “all the group’s activities, criminal and
otherwise” as advocated by defendant. Likewise, in Gardeley, the court did not require
consideration of all of the Family Crip’s activities in order to assess whether sale of
narcotics or witness intimidation were among its primary activities. (Cf. Gardeley,
supra, at p. 620.) Nor was there any mention that the gang expert in Gardeley considered
the Family Crip’s noncriminal activities before opining that sale of narcotics was the
Family Crip gang’s primary activity. (See id. at pp. 611-614 [describing gang expert’s
15.
testimony].) In sum, the Sengpadychith court endorsed the gang expert testimony in
Gardeley and did not suggest that satisfaction of the “primary activities” element of
section 186.22 requires consideration of all the alleged gang’s activities.
Here, as we have discussed, Echevarria’s testimony is similar to the expert
testimony in Gardeley. As a result, Sengpadychith supports our conclusion that there was
sufficient evidence to establish that commission of the crimes identified by Echevarria
were “one of [the] primary activities” of the Southern gang. (§ 186.22, subd. (f).)
II. Buck’s testimony regarding criminal activity of others
Defendant also contends the trial court abused its discretion by allowing Buck to
testify about the criminal activity of others. We find no abuse of discretion.
A. Background
In a pretrial motion, defendant argued that references to his putative gang
membership were inadmissible. He argued that the gang expert’s opinion testimony
should be excluded because, among other things, under Evidence Code section 352, its
slight probative value was outweighed by the probable prejudicial effect. The trial court
ruled that it would allow the gang expert’s testimony, but stated, “If something should
come up during his testimony, I guess, that I’m not aware of, we’ll deal with that then.”
At trial, Buck testified that defendant’s brothers were Southern gang members.
Defense counsel objected to this testimony on the ground of lack of foundation. The trial
court overruled the objection with the understanding that Buck would be able to lay a
foundation. Buck then explained that he was familiar with defendant’s brothers and
knew they were gang members based on previous contacts, admissions of gang
membership made to Buck, and police reports.
In describing the formation of the Wicked Side Varrio clique, Buck testified:
“After [Eduardo Luna’s] death, you can see a huge increase in violent criminal activity
between the Gonzalez brothers, the Alvarado brothers, and rival [N]ortherners.” Defense
16.
counsel raised an objection based on lack of foundation and the trial court overruled the
objection.
Buck continued: “The Gonzalez brothers and the Alvarado brothers were
continuously involved in violent confrontation with rival [N]orthern gang members
where one group of brothers would be involved in a crime or together, and they would
shuffle weapons back and forth amongst their houses when they were involved in these
crimes. [¶] … [¶] For the most part, that was the beginning of what they call Wicked
Side Varrio, WSV. It was this initial core group other than Santiago and others that lived
on G Street [where the Luna brothers lived] that developed or established WSV.”
Buck testified that WSV did not recruit people at the time of trial. He explained:
“Basically, the [clique] has been pretty much fragmented ever since then. Several of the
individuals were arrested during the course of the Gonzalez homicide investigation. And
that’s pretty much a result of it. They’re in custody.”
B. Analysis
“Evidence Code section 352 gives the trial court discretion to determine if
otherwise relevant evidence should be excluded because its probative value is
substantially outweighed by its prejudicial effect or if the evidence is cumulative. We
review for an abuse of discretion while giving the trial court’s determination deference.
[Citation.] For Evidence Code section 352 purposes, prejudice refers to evidence that
uniquely tends to evoke an emotional bias against the defendant without regard to its
relevance on material issues. [Citation.]” (People v. Killebrew (2002) 103 Cal. App. 4th
644, 650 (Killebrew), fn. omitted, disapproved on another ground in People v. Vang
(2011) 52 Cal. 4th 1038, 1047-1048, fn. 3.)
As a “general rule, evidence of gang membership and activity is admissible if it is
logically relevant to some material issue in the case, other than character evidence, is not
more prejudicial than probative[,] and is not cumulative. [Citation.]” (People v.
Albarran (2007) 149 Cal. App. 4th 214, 223.) “Gang evidence is relevant and admissible
17.
when the very reason for the underlying crime, that is the motive, is gang related.
[Citation.] ‘“[B]ecause a motive is ordinarily the incentive for criminal behavior, its
probative value generally exceeds its prejudicial effect, and wide latitude is permitted in
admitting evidence of its existence.” [Citations.]’” (People v. Samaniego (2009) 172
Cal. App. 4th 1148, 1167-1168.)
Here, Buck’s testimony about how the Northerners’ “move out” campaign aimed
at the Luna brothers resulted in the formation of Wicked Side Varrio was relevant to
establish that defendant was an active gang member of a clique of the Southerners and to
establish the bitter rivalry between WSV and the Northerners. The details regarding
different cliques committing crimes together was relevant to show that defendant, a
member of the WSV clique of the Southerners, would have worked together with
Astorga, a member of a different clique of the Southerners, in obtaining and then
retrieving a handgun. The evidence that defendant’s fellow WSV gang members
committed violent crimes aimed at Northern gang members was relevant to support the
prosecution’s theory that defendant was motivated to shoot Leo because defendant
perceived him to be a rival gang member and not simply because Leo was in a motel
room with defendant’s sometime girlfriend. Further, in light of defendant’s claim that he
was not a Southern gang member and did not know what Northerners wear, Buck’s
testimony was relevant to impeach defendant’s testimony. Under these circumstances,
we cannot say the admission of Buck’s testimony in this case exceeded the bounds of
reason. (See People v. Gonzalez (2005) 126 Cal. App. 4th 1539, 1550 [“‘[A]dmission of
gang evidence over an Evidence Code section 352 objection will not be disturbed on
appeal unless the trial court’s decision exceeds the bounds of reason.’”].)
Defendant, however, argues that Buck’s testimony is akin to the gang expert’s
testimony this court found objectionable in Killebrew, supra, 103 Cal. App. 4th 644. We
disagree.
18.
In Killebrew, police officers observed young Black men riding in three cars in East
Side Crip territory after midnight. The police conducted a traffic stop of one of the cars,
a Chevrolet. They found a handgun in the car, and the four occupants of the Chevrolet
were arrested. The other two cars were located nearby at a taco stand. Seven young
Black men were identified as the occupants of the two cars, and a handgun was found
hidden in a shoebox near the taco stand. These seven men were arrested. (Killebrew,
supra, 103 Cal.App.4th at pp. 648-649.) The defendant Killebrew was not found in the
Chevrolet or at the taco stand. Rather, he was seen watching the traffic stop of the
Chevrolet from a street corner. (Ibid.) The prosecution theorized that the occupants of
the three cars had conspired to possess the handgun found in the Chevrolet and the
handgun found at the taco stand. The prosecution further argued that Killebrew had been
a passenger in one of two cars found near the taco stand and, therefore, he also
participated in the conspiracy. (Id. at p. 649.)
At trial, a gang expert gave his opinion that all twelve men arrested that night were
members of the East Side Crips. (Killebrew, supra, 103 Cal.App.4th at p. 659.) The
gang expert “then spent over 100 pages of transcript explaining in detail why he believed
each man was a gang member. This testimony varied from convictions, to arrests without
convictions, to pure speculation.” (Ibid.) The Killebrew court was particularly troubled
by the expert’s testimony regarding a juvenile, T.D., who was an occupant of the
Chevrolet. “[The gang expert] testified (1) T.D. was with other gang members near
where a man was killed, (2) T.D. was accused of shooting at two people, (3) T.D. was
suspected of involvement in a gun battle with two rival gang members shortly before he
was arrested for possession of a handgun and possession of marijuana, and (4) T.D. was
accused of robbing a store with three other gang members. There was no evidence that
T.D. was arrested, tried or convicted (or the allegations of juvenile petitions found true)
for any of these accusations.” (Ibid.)
19.
The court found the trial court abused its discretion by allowing so much
testimony that appeared to lack evidentiary basis: “It is disturbing that the trial court
allowed [the gang expert] to offer this testimony on direct examination despite repeated
objections. The law in California is well settled: An expert may not testify to
incompetent hearsay under the guise of stating reasons for an opinion. [Citations.] [The
gang expert’s] testimony was clearly incompetent hearsay that should neither have been
elicited nor admitted. Moreover, the trial court is obligated by Evidence Code
section 352 ‘“to weigh the probative value of inadmissible evidence relied upon by an
expert witness … against the risk that the jury might improperly consider it as
independent proof of the facts recited therein.”’ [Citation.] The trial court abused its
discretion by allowing [the gang expert] to testify at such great length about material that
inflamed the jury’s passions and had little or no probative value.” (Killebrew, supra, 103
Cal.App.4th at p. 659.)
Buck’s testimony in the current case is not akin to gang expert’s testimony in
Killebrew. It does not appear that Buck’s testimony was based on incompetent hearsay
since he testified that he was familiar with defendant and his family from personal
criminal investigations. He knew the Gonzalez brothers and personally investigated the
Gonzalez brothers’ homicide case. In addition, he testified that Jose and Rafael were
charged with murder and later entered pleas. Echevarria testified that Juan Gonzalez
committed a drive-by shooting against a rival Northerner and entered a plea. Buck
testified that most of the members of the WSV clique were in custody. Thus, Buck’s
testimony was not based on “arrests without convictions … [or] pure speculation” as in
Killebrew. (Killebrew, supra, 103 Cal.App.4th at p. 659.)
Instead, Buck’s testimony is more like the background gang information that was
found to be permissible in Killebrew. As we have described, the prosecution’s theory in
Killebrew was that all twelve men conspired to possess the handguns found in the
Chevrolet and near the taco stand. This theory was premised on the effect an earlier
20.
gang-related shooting would have had on members of the East Side Crips. (Killebrew,
supra, 103 Cal.App.4th at p. 650.) This shooting occurred in the early evening the day
before the traffic stop and mass arrest. At a park, members of the Country Boy Crips
criminal gang, along with many women and children, attended a gathering to honor a
friend who had died. A black Jeep drove by the park, and gunfire erupted from the Jeep.
At least two people at the park were killed. The shooters identified themselves as
members of the East Side Crips. (Id. at p. 647.) At Killebrew’s trial, the court allowed
extensive testimony about the events at the park. (Id. at p. 650.)
The prosecution argued that the park shooting was a major gang event guaranteed
to generate retaliation by the Country Boy Crips. “The prospect of retaliation was the
basis for the actions taken by the officers that night as well as the foundation of the
prosecution’s conspiracy theory.” (Killebrew, supra, 103 Cal.App.4th at p. 650.) The
appellate court rejected Killebrew’s argument that the trial court erred by allowing such
extensive testimony on the park shooting. The court found that the evidence of the park
shooting was relevant because it provided support for the prosecution’s theory of the
case. The court acknowledged that evidence that Killebrew was an East Side Crip and
that the East Side Crips were responsible for at least two deaths “undoubtedly evoked the
kind of emotional bias that Evidence Code section 352 is designed to preclude from the
courtroom.” (Ibid.) Nonetheless, it concluded that the trial court did not abuse its
discretion by allowing the extensive testimony about the park shooting given its
relevance.
In a similar vein, Buck’s testimony about the formation of the WSV clique and the
violence between the clique and rival Northerners was relevant to support the
prosecution’s theory in this case. The testimony supported the theory that defendant shot
Leo because he was wearing a hat that signified he was a member of the rival clique that
was responsible for the death of Eduardo Luna.
21.
Defendant’s reliance on People v. Albarran, supra, 149 Cal. App. 4th 214 is
misplaced. In that case, the Court of Appeal found that the prosecution failed to present
sufficient evidence that the crimes were gang motivated and, as a result, the gang
evidence presented at trial was irrelevant. (Id. at p. 217.) The court specifically found
that the gang evidence was not relevant to the issue of motive and intent, noting that “the
motive for the underlying crimes … was not apparent from the circumstances of the
crime.” (Id. at p. 227.) The court went on to conclude that the admission of the
irrelevant gang evidence was prejudicial. (Id. at pp. 228-232.)
Here, in contrast, there was evidence of gang motive from the circumstances of the
crime. According to Arias, defendant used a derogatory term for Northerners in
addressing Leo and Arias and then, after looking at the two men, chose to shoot Leo, who
was wearing a Cincinnati Reds hat. Buck testified that wearing a Cincinnati hat in
Porterville signifies that the person is a member of VCP, a Northern clique. Thus, unlike
People v. Albarran, the possible gang motive was apparent from the circumstances of the
crime. As we already have concluded, Buck’s testimony was relevant to support the
prosecution’s theory that defendant shot Leo because he perceived Leo to be a member of
a rival gang.
III. Sufficency of evidence of premeditation
The jury found defendant guilty of first degree murder. Defendant contends the
evidence did not show a premeditated killing as defined by section 189. This contention
lacks merit.
Section 189 provides in relevant part: “All murder which is perpetrated by means
of a destructive device or explosive, a weapon of mass destruction, knowing use of
ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture,
or by any other kind of willful, deliberate, and premeditated killing, or which is
committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking,
robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under
22.
Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of
discharging a firearm from a motor vehicle, intentionally at another person outside of the
vehicle with the intent to inflict death, is murder of the first degree. All other kinds of
murders are of the second degree.”
The statute further provides, “To prove the killing was ‘deliberate and
premeditated,’ it shall not be necessary to prove the defendant maturely and meaningfully
reflected upon the gravity of his or her act.” (§ 189.)
In People v. Mayfield (1997) 14 Cal. 4th 668, 767 (Mayfield), the California
Supreme Court explained: “In this context, ‘premeditated’ means ‘considered
beforehand,’ and ‘deliberate’ means ‘formed or arrived at or determined upon as a result
of careful thought and weighing of considerations for and against the proposed course of
action.’ [Citation.]”
Defendant argues the rule of esjudem generis supports his position that there was
insufficient evidence of premeditation in this case. “The canon of ejusdem generis ‘ …
means that if a statute contains a list of specified items followed by more general words,
the general words are limited to those items that are similar to those specifically listed.’
[Citation.]” (Sterling Park, L.P. v. City of Palo Alto (2013) 57 Cal. 4th 1193, 1202.) In
People v. Thomas (1945) 25 Cal. 2d 880, 899-900 (Thomas), the California Supreme
Court applied this canon of construction to section 189. “[T]he more general words ‘or
any other kind of willful, deliberate, and premeditated killing,’ following the specifically
enumerated instances of killing which are expressly declared to constitute murder of the
first degree, must be construed in the light of such specifically listed types and be held to
include only killings of the same general kind or character as those specifically
mentioned. By conjoining the words ‘willful, deliberate, and premeditated’ in its
definition and limitation of the character of killings falling within murder of the first
degree the Legislature apparently emphasized its intention to require as an element of
23.
such crime substantially more reflection than may be involved in the mere formation of a
specific intent to kill.” (Thomas, supra, at pp. 899-900.)
Relying on the rule of esjudem generis, defendant asserts, “Nothing in this record
is of a piece with poisoning, murder by explosives, and the other statutory examples of
premeditated killings, so the present offense is not within the scope of section 189. By all
accounts it was a matter of seconds from the time [defendant] became aware that there
was a man or men in [Yanez’s] room until he fired.” Defendant’s argument seems to
imply that a premeditated killing must take as much as time, or require as much planning,
as a killing achieved by poisoning or explosives, but this is not the law. To the contrary,
the Thomas court observed, “[A] murder is of the first degree no matter how quickly the
act of killing follows the ultimate formation of the intention if that intention has been
reached with deliberation and premeditation.” (Thomas, supra, 25 Cal.2d at p. 900.)
The Thomas court continued: “‘The intent to kill must be the result of deliberate
premeditation; it must be formed upon a pre-existing reflection, and not upon a sudden
heat of passion sufficient to preclude the idea of deliberation.’ Neither the statute nor the
court undertakes to measure in units of time the length of the period during which the
thought must be pondered before it can ripen into an intent which is truly deliberate and
premeditated. The time would vary with different individuals and under differing
circumstances. 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, but the express requirement for a concurrence of
deliberation and premeditation excludes from murder of the first degree those homicides
(not specifically enumerated in the statute) which are the result of mere unconsidered or
rash impulse hastily executed. [¶] The word ‘deliberate’ is an antonym of ‘Hasty,
impetuous, rash, impulsive’ (Webster's New Int. Dict. (2d ed.)) and no act or intent can
truly be said to be ‘premeditated’ unless it has been the subject of actual deliberation or
forethought (id.).” (Thomas, supra, 25 Cal.2d at pp. 900-901.)
24.
In People v. Anderson (1968) 70 Cal. 2d 15, 26-27, the California Supreme Court
“surveyed a number of prior cases involving the sufficiency of the evidence to support
findings of premeditation and deliberation” and identified three categories of evidence
generally relevant to the determination: (1) motive, (2) planning activity, and (3) manner
of killing. (People v. Perez (1992) 2 Cal. 4th 1117, 1125 [analyzing People v.
Anderson].). “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.] In conducting this analysis, we draw all reasonable inferences necessary to
support the judgment. [Citation.]” (People v. Stitely (2005) 35 Cal. 4th 514, 543.)
Here, as we already have discussed, evidence of defendant’s gang activity and his
rivalry with Northern gang members in general and the VCP clique in particular provides
motive for the killing. (People v. Sanchez (2001) 26 Cal. 4th 834, 849 [“Premeditation
can be established in the context of a gang shooting even though the time between the
sighting of the victim and the actual shooting is very brief.”].) Arias’s testimony that
defendant used the term “buster” and, after looking at Leo and Arias, shot Leo, who was
wearing a hat identifying him as member of VCP, further supports the gang motive.
(People v. Rand (1995) 37 Cal. App. 4th 999, 1001 [“A studied hatred and enmity,
including a preplanned, purposeful resolve to shoot anyone in a certain neighborhood
wearing a certain color, evidences the most cold-blooded, most calculated, most culpable,
kind of premeditation and deliberation.”].)
The texts between Astorga and defendant before and after the shooting support an
inference that defendant arranged to pick up the gun from Astorga prior to the killing,
which, in turn, shows planning. (People v. Caro (1988) 46 Cal. 3d 1035, 1050 [evidence
that the defendant armed himself showed planning].) This may be so even if defendant
did not know Leo and, therefore, did not have a specific plan to kill him. (See People v.
Rand, supra, 37 Cal.App.4th at p. 1001 [rejecting the defendant’s argument that a
25.
“‘“kneejerk”’” reaction of shooting a suspected rival gang member would not be done
with premeditation and deliberation].) Finally, the manner of killing—firing two shots at
the victim’s face at close range—supports an inference of premeditation. (Mayfield,
supra, 14 Cal.4th at p. 768 [“the firing of the gun at Sergeant Wolfeley’s face is a manner
of killing that was entirely consistent with a preconceived design to take his victim’s
life”].)
In People v. Manriquez (2005) 37 Cal. 4th 547, 564-566, the defendant killed a
man in a bar. A witness testified that the victim was asleep at the bar when the defendant
shot him. (Id. at p. 565.) The victim died of multiple gunshot wounds to the back. (Id. at
p. 566.) The state Supreme Court found sufficient evidence to support premeditation,
reasoning: “[T]he evidence adduced at trial revealed that defendant, having armed
himself with a loaded firearm, approached the victim, who was asleep at the bar, grabbed
him and shot him repeatedly in the back from very close range, causing multiple fatal
gunshot wounds. The evidence was sufficient to establish premeditation and
deliberation.” (Id. at p. 578.) Similarly, in this case, the evidence was sufficient for the
jury to find that defendant acted with premeditation and deliberation.
IV. CALCRIM No. 521
In his final argument, defendant claims the jury instruction on first and second
degree murder did not adequately or correctly differentiate between premeditation and
intent.
The jury was given CALCRIM No. 521 as follows:
“If you decide that the defendant has committed murder, you must
decide whether it is murder of the first or second degree.
“The defendant is guilty of first degree murder if the People have
proved that he acted willfully, deliberately, and with premeditation. The
defendant acted willfully if he intended to kill. The defendant acted
deliberately if he carefully weighed the considerations for and against his
choice and, knowing the consequences, decided to kill. The defendant
26.
acted with premeditation if he decided to kill before completing the act that
caused death.
“The length of time the person spends considering whether to kill
does not alone determine whether the killing is deliberate and premeditated.
The amount of time required for deliberation and premeditation may vary
from person to person and according to the circumstances. A decision to
kill made rashly, impulsively, or without careful consideration is not
deliberate and premeditated. On the other hand, a cold, calculated decision
to kill can be reached quickly. The test is the extent of the reflection. The
length of time alone is not determinative.
“All other murders are of the second degree.
“The People have the burden of proving beyond a reasonable doubt
that the killing was first degree murder rather than a lesser crime. If the
People have not met this burden, you must find the defendant not guilty of
first degree murder.”
Defendant claims the instruction’s description of premeditation (“The defendant
acted with premeditation if he decided to kill before completing the act that caused
death”) blurs the distinction between premeditation and intent. He asserts it is misleading
because a juror would be tempted “to mistakenly believe that a decision an instant before
the killing suffices for first-degree murder.”
As a preliminary matter, the Attorney General argues that defendant has forfeited
this claim by not objecting to the instruction at trial. “A trial court has no sua sponte duty
to revise or improve upon an accurate statement of law without a request from counsel
[citation], and failure to request clarification of an otherwise correct instruction forfeits
the claim of error for purposes of appeal. [Citations.]” (People v. Lee (2011) 51 Cal. 4th
620, 638.) Defendant responds that “no forfeiture will be found where … the court’s
instruction was an incorrect statement of the law [citation], or the instructional error
affected the defendant’s substantial rights.” (People v. Mason (2013) 218 Cal. App. 4th
818, 823.) Defendant asserts there is no forfeiture here because his claim is that
“CALCRIM No. 521 is not ‘correct in law.’” Accordingly, we consider defendant’s
claim, but we conclude the claim fails on the merits.
27.
As we have mentioned, our Supreme Court has explained that “‘premeditated’
means ‘considered beforehand.’” (Mayfield, supra, 14 Cal.4th at p. 767.) Defendant
finds fault with the sentence, “The defendant acted with premeditation if he decided to
kill before completing the act that caused death.” We do not find this to be an incorrect
statement of the law. In the context of the instruction, we see no meaningful distinction
between “‘considered beforehand’” (ibid.) and “decided to kill before” (CALCRIM
No. 521).
Defendant argues that “[c]onsideration takes more time than decision.” Again,
defendant’s argument seems to imply a certain amount of time must pass to find
premediation, but “[t]houghts may follow each other with great rapidity and cold,
calculated judgment may be arrived at quickly.” (Thomas, supra, 25 Cal.2d at p. 900.)
To the extent defendant’s argument is that the act of “considering” is an additional
requirement of first degree murder, we observe that “weigh[ing] the considerations for
and against” is part of the instruction’s definition of acting “deliberately.”
Defendant quotes the following language from People v Holt (1944) 25 Cal. 2d 59:
“‘Further, the use of “wilful, deliberate, and premeditated” in conjunction would seem to
indicate that the legislature meant, by reiteration, to emphasize its intent to require, as an
element of first degree murder, considerably more reflection than the mere amount of
thought necessary to form the intention.’” (Id. at p. 87, quoting Pike, What is Second
Degree Murder in California? (1936) 9 So.Cal. L.Rev. 112.) He then asserts, “That is
the message that is missing from CALCRIM No. 521.” We disagree.
The jury instruction provided in relevant part: “The defendant is guilty of first
degree murder if the People have proved that he acted willfully, deliberately, and with
premeditation. The defendant acted willfully if he intended to kill. The defendant acted
deliberately if he carefully weighed the considerations for and against his choice and,
knowing the consequences, decided to kill. The defendant acted with premeditation if he
decided to kill before completing the act that caused death.” This instruction conveys to
28.
the jury that first degree murder requires more reflection than the amount of thought
necessary for an intention to kill. For the foregoing reasons, we reject defendant’s claim
that CALCRIM No. 521 is not a correct statement in law.
DISPOSITION
The judgment is affirmed.
_____________________
Kane, J.
WE CONCUR:
_____________________
Hill, P.J.
_____________________
Detjen, J.
29.