People v. Storrs CA3 ( 2021 )

Filed 7/7/21 P. v. Storrs CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C087437
Plaintiff and Respondent, (Super. Ct. No.
STKCRFE20160015254)
v.
KENNETH EUGENE STORRS,
Defendant and Appellant.
The victim was standing in a recycling center in Stockton, having agreed to help
E.S. redeem his recycling. While the victim was helping E.S., defendant stabbed the
victim. Defendant inflicted two superficial incised wounds in the neck area and two fatal
stab wounds penetrating from the neck area into the chest cavity, killing the victim. A
jury found defendant guilty of first degree murder and found true an allegation alleging a
sentence enhancement that, in committing the murder, defendant personally used a
deadly or dangerous weapon.
1
On appeal, defendant’s only contention is that the evidence was legally
insufficient to prove premeditation and deliberation so as to support the jury’s first degree
murder verdict. He asserts his conviction should be reversed or reduced to murder in the
second degree.
We affirm the judgment.
FACTS AND HISTORY OF THE PROCEEDINGS
Defendant was charged in an information with the murder of the victim (Pen.
Code, § 187, subd. (a) [statutory section references that follow are to the Penal Code
unless otherwise stated]; count 1) and criminal threats against E.S. (§ 422, subd. (a);
count 2). In connection with each count, the information alleged defendant personally
used a deadly or dangerous weapon within the meaning of section 12022, subdivision
(b)(1), and that he had sustained two prior serious felony convictions within the meaning
of sections 1170.12, subdivision (b), and 667, subdivision (d).
The Prosecution Evidence
On November 10, 2016, at approximately 4:15 p.m., the victim and his uncle went
to the recycling center on Worth Street in Stockton. When they arrived, the victim’s
uncle retrieved baskets to transport his recyclables. He then went inside and stood in
line. Usually, when they went to the recycling center, the victim would wait in his car.
E.S. was also at the recycling center. However, he did not have a California
identification card, which is required to redeem certain types of recyclables. E.S. looked
around for someone with a California identification card. E.S. found the victim sitting in
his white Mercedes and the victim agreed to help E.S. E.S. told the victim he would call
him inside when it was his turn.
E.S. went inside and waited in line. He noticed defendant staring at him like he
wanted to say something. E.S. asked defendant if there was something on his mind, but
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defendant did not answer him. When it was his turn, E.S. motioned for the victim to
come in.
The victim’s uncle was inside the recycling center approximately three to four
minutes. He received his money and a receipt. As he was walking out of the recycling
center, the victim said to him, “ ‘Uncle, I’m going to turn this in for this guy real quick,
turn this recycling in.’ ” The victim’s uncle left the warehouse and took a couple of steps
when he turned around. He saw that the victim and defendant were “[s]ide to side,” with
defendant to the victim’s left in the doorway. At that point, the victim’s uncle dropped
his receipt and it “ended up under [defendant’s] foot.” The victim’s uncle said, “[e]xcuse
me” and retrieved the receipt. The victim’s uncle did not exchange any additional words
with defendant and he did not see any interaction between defendant and the victim.
The victim’s uncle decided to go back to the recycling center desk and get a
couple of sodas, one for him and one for the victim. The victim’s uncle walked into the
recycling center and went several steps toward the desk. At this point, the victim and
defendant were behind him.
E.S. asked the victim to hand his recyclables to him at the scales, and the victim
gave E.S. two of the barrels. E.S. “turned back around to grab the other ones and [the
victim] had already been stabbed.” Blood “was gushing from his shoulder . . . .” E.S. did
not see the stabbing and did not see anyone around him at the time.
The victim’s uncle heard one of the workers say, “ ‘Get the F out of here.’ ” At
that point, the victim’s uncle turned around and saw the victim walking towards him.
The victim was holding his neck, and he said, “ ‘Uncle, he cut me.’ ” The victim took his
hand down and “blood squirted in the air, squirted about ten feet in the air maybe twice.”
The victim’s uncle had the victim sit down in a chair near the desk. The victim’s uncle
“told [the victim] he was going to be okay, but he wasn’t.” E.S. tried to stop the bleeding
by putting “enormous amounts of pressure” on the victim’s neck. The victim never said
anything else.
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E.S. again observed defendant looking at him. Defendant told E.S., “ ‘You’re
next,’ ” and “ ‘I’ll be waiting for you outside out here.’ ” According to the victim’s
uncle, defendant was yelling something like, “ ‘you guys going get it [sic] next.’ ” He
was threatening in the direction of the victim’s uncle and others, and the victim’s uncle
did not know whom defendant was threatening. Defendant, mad and angry, walked
outside and into the street.
Neither the victim’s uncle nor E.S. saw defendant with a weapon. Another
witness, G.S., who also tried to help the victim, remembered seeing that defendant was
wearing blue rubber gloves.
The victim’s uncle testified he had seen defendant at the recycling center “quite
often,” and he believed defendant’s grandfather “used to stay next door to me.”
However, the victim’s uncle did not have any prior problems or negative interactions
with defendant.
R.L. worked at the recycling center. He was standing by scales in the recycling
center when he heard a sound like a woman’s scream. R.L. then saw the victim bleeding.
He also saw defendant “turning around and taking off in the opposite direction out the
gate.” R.L. testified that he told police he had seen someone “creeping.” After the fact,
R.L. realized it was defendant he had seen creeping. R.L. testified that, after the fact, he
pieced things together and realized who he had seen creeping. By “creeping,” R.L. meant
defendant was “[c]rouching down, like crouching down, walking towards somebody.”
R.L. observed defendant creeping with his peripheral vision. He observed movement
from the doorway towards where the victim was standing. After R.L. heard the scream,
he noticed defendant “trotting backwards” outside and to the gate.
P.O., the manager of the recycling center was at work behind the counter. He
went to get something for a customer and, when he returned, he saw the victim had been
stabbed in the neck. The victim was holding his neck. When the victim let go of his
neck, “a fountain of blood just poured out of his neck.” P.O. did not see the stabbing.
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The victim went to a chair. A second or two after he saw the victim, and near where he
had seen the victim, P.O. saw defendant coming from the same direction the victim came
from. Defendant “was waving a knife around . . . . He was just in the air, like filleting
something.” The blade was six to eight inches long. Defendant pointed the knife in “the
direction of the guy that got stabbed and then he pointed it back at” P.O. P.O. did not
hear defendant say anything. Defendant just kept gesturing, pointing to everyone with
whom he made eye contact. Defendant then “just turned around and walked away.” P.O.
called 911.
P.O. testified he had seen defendant before, every day. According to P.O., “he’s
one of the -- the neighborhood people that lives around there.” P.O. also testified that
people use pocketknives or tools at the recycling center all the time for utility purposes.
Stockton Police Officer Paul Billman and his partner responded to the recycling
center. Billman saw the victim, sitting in a chair, bleeding heavily from the left side of
his neck. There was a large pool of blood on the ground. Another individual was
holding pressure on the victim’s neck. Eventually, paramedics arrived and took the
victim to the hospital.
Detective Joseph Bitondo arrived at the recycling center at approximately 5:40
p.m. Bitondo went to an encampment across the street from the recycling center. At
some point, he saw defendant walking towards the encampment. Defendant said it was
his encampment. Police conducted a showup with P.O. Bitondo detained defendant and
took him to the police station. Bitondo measured the left rear pocket of plaid shorts
defendant had been wearing. Depending on orientation, straight up-and-down versus
diagonal, the pocket measured between six and seven inches deep.
Inside the recycling center, police found a folding knife. The blade was
approximately two and a half inches long.
Bitondo reviewed the surveillance video that was played for the jury. The
recording did not have a time stamp. Bitondo determined the timing of events based on
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when the police arrived. The victim and his uncle arrived at the recycling center
approximately 24 minutes before police arrived. Twelve minutes before the police
arrived, the victim was in his white Mercedes while defendant walked across a part of the
parking lot. Defendant arrived at the recycling center approximately eight minutes before
the police arrived. Defendant could be seen standing behind the victim approximately
seven minutes before the police arrived. Five minutes before the police arrived, the
victim can be seen walking inside the recycling center building. Three minutes before
police arrived, defendant can be seen leaving the premises.
Dr. Arnold Josselson testified as an expert in the field of forensic pathology.
Josselson performed the autopsy on the victim. The victim sustained four “sharp force
injuries.” Josselson testified there are two types of sharp force injuries: stab wounds,
which are deeper than they are long on the surface of the skin, and incised wounds what
are longer on the surface of the skin than they are deep. The victim sustained an incised
wound on the upper left side of his chest, “a very superficial wound.” He sustained a
second wound, a stab wound to the left shoulder, about two and a half inches below the
top of the shoulder, that went into the chest cavity. This wound, which was fatal, was
seven inches deep. As a result of this wound, the victim suffered bleeding into the chest
cavity. According to Josselson, “[u]nless the bleeding is stopped, a person will bleed out,
which is what happened to” the victim. A third wound was a nonfatal wound to the left
shoulder which was very superficial. Finally, a fourth wound, another fatal wound, was
inflicted to the top of the back on the left side and into the left chest cavity. This wound
severed the victim’s subclavian artery, a “rather big artery” that runs under the clavicle.
This wound was six inches deep. Based on the wounds, Josselson estimated that the
knife that inflicted them would have been anywhere from “a little less than six inches”
long to quite a bit longer. Other than the “sharp force injuries” and trauma from
resuscitation, the victim did not sustain any other injuries. The victim did not sustain any
injuries to his hands, wrists, or face. The two fatal stab wounds entering the left chest
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were the causes of the victim’s death. Josselson testified that, without resuscitation, the
victim would have lost consciousness within five minutes and died within five to 10
minutes.
A DNA sample taken from the blade of the folding knife was a mixture of at least
two individuals, and included a major and minor contributor. The major contributor was
consistent with the victim’s DNA profile. Defendant was excluded as the major
contributor. The data for the minor contributor was insufficient to analyze. On the
handle of the folding knife, there was only one DNA profile found, which was consistent
with the victim’s profile. Defendant was eliminated as a source of the DNA on the
handle of the knife.
The defense presented no evidence.
Verdict and Sentence
The jury found defendant guilty of murder in the first degree. The jury further
found that, in committing the murder, defendant personally used a weapon, a knife,
within the meaning of section 12022, subdivision (b)(1). The jury found defendant not
guilty of criminal threats.
In a bifurcated proceeding, the trial court found true the allegations defendant
sustained two prior serious felony convictions.
The trial court sentenced defendant to 76 years to life, calculated as follows: 25
years to life on count 1, murder, tripled pursuant to sections 1170.12, subdivision
(c)(2)(A), and 667, subdivision (e)(2)(A), plus one year on the personal use of a deadly or
dangerous weapon enhancement pursuant to section 12022, subdivision (b)(1).
DISCUSSION
Defendant contends his conviction of first degree murder must be reversed or
reduced to second degree murder because the evidence was legally insufficient to prove
premeditation and deliberation. Defendant emphasizes the proof of premeditation was
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wholly circumstantial. Defendant asserts that, analyzing the evidence in the context of
the framework set forth by our high court in People v. Anderson (1968) 70 Cal.2d 15(Anderson), his “conviction for premediated and deliberate murder cannot be sustained.”
The Attorney General counters that evidence defendant “stalked and stabbed an
unsuspecting [victim] was substantial evidence of premeditation and deliberation.”
“The law governing sufficiency-of-the-evidence challenges is well
established . . . . [Citations.] In reviewing a claim for sufficiency of the evidence, we
must determine 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. We review the entire record in the light most favorable to
the judgment below to determine whether it discloses sufficient evidence—that is,
evidence that is reasonable, credible, and of solid value—supporting the decision, and not
whether the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither
reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] We presume
in support of the judgment the existence of every fact the jury reasonably could deduce
from the evidence. [Citation.] If the circumstances reasonably justify the findings made
by the trier of fact, reversal of the judgment is not warranted simply because the
circumstances might also reasonably be reconciled with a contrary finding.” (People v.
Jennings (2010) 50 Cal.4th 616, 638-639 (Jennings).)
“The same standard of review applies to cases in which the prosecution relies
mainly on circumstantial evidence . . . .” (People v. Maury (2003) 30 Cal.4th 342, 396
(Maury), disapproved on another ground in Barnett v. Superior Court (2010) 50 Cal.4th
890, 901.) “An appellate court must accept logical inferences that the jury might have
drawn from the circumstantial evidence.” (Maury, at p. 396; see also People v. Bloom
(1989) 48 Cal.3d 1194, 1208 (Bloom) [“Evidence of a defendant’s state of mind is almost
inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to
support a conviction”].)
8
“ ‘A reversal for insufficient evidence “is unwarranted unless it appears ‘that upon
no hypothesis whatever is there sufficient substantial evidence to support’ ” the jury’s
verdict.’ ” (People v. Penunuri (2018) 5 Cal.5th 126, 142 (Penunuri), italics added.)
“ ‘Murder is the unlawful killing of a human being . . . with malice aforethought.’
[Citation.] Malice aforethought may be express or implied.” (People v. Elmore (2014)
59 Cal.4th 121, 132.) “A killing with express malice formed willfully, deliberately, and
with premeditation constitutes first degree murder.” (People v. Beltran (2013) 56 Cal.4th
935, 942 (Beltran).) “ ‘Second degree murder is the unlawful killing of a human being
with malice aforethought but without the additional elements, such as willfulness,
premeditation, and deliberation, that would support a conviction of first degree murder.’ ”
(Ibid.)
“The very definition of ‘premeditation’ encompasses the idea that a defendant
thought about or considered the act beforehand. ‘ “ ‘[P]remeditation’ means thought over
in advance,” ’ and ‘ “ ‘[d]eliberation’ refers to careful weighing of considerations in
forming a course of action . . . .” ’ [Citations.] ‘An intentional killing is premeditated
and deliberate if it occurred as the result of preexisting thought and reflection rather than
unconsidered or rash impulse.’ ” (People v. Pearson (2013) 56 Cal.4th 393, 443.)
“ ‘ “ ‘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.’ ” ’ ” (People v. Casares (2016) 62 Cal.4th 808, 824 (Casares),
disapproved on another ground in People v. Dalton (2019) 7 Cal.5th 166, 214.)
In Anderson, supra, 70 Cal.2d 15, our high court stated: “The type of evidence
which this court has found sufficient to sustain a finding of premeditation and
deliberation falls into three basic categories: (1) facts about how and what defendant did
prior to the actual killing which show that the defendant was engaged in activity directed
toward, and explicable as intended to result in, the killing -- what may be characterized as
‘planning’ activity; (2) facts about the defendant’s prior relationship and/or conduct with
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the victim from which the jury could reasonably infer a ‘motive’ to kill the victim, which
inference of motive, together with facts of type (1) or (3), would in turn support an
inference that the killing was the result of ‘a pre-existing reflection’ and ‘careful thought
and weighing of considerations’ rather than ‘mere unconsidered or rash impulse hastily
executed’ [citation]; (3) facts about the nature of the killing from which the jury could
infer that the manner of killing was so particular and exacting that the defendant must
have intentionally killed according to a ‘preconceived design’ to take his victim’s life in a
particular way for a ‘reason’ which the jury can reasonably infer from facts of type (1) or
(2). [¶] Analysis of the cases will show that this court sustains verdicts of first degree
murder typically when there is evidence of all three types and otherwise requires at least
extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3).”
(Id. at pp. 26-27.)
As our high court has since cautioned, however, “ ‘ “[u]nreflective reliance on
Anderson for a definition of premeditation is inappropriate. The Anderson analysis was
intended as a framework to assist reviewing courts in assessing whether the evidence
supports an inference that the killing resulted from preexisting reflection and weighing of
considerations. It did not refashion the elements of first degree murder or alter the
substantive law of murder in any way.” [Citation.] In other words, the Anderson
guidelines are descriptive, not normative.’ ” (Casares, supra, 62 Cal.4th at p. 824,
quoting People v. Koontz (2002) 27 Cal.4th 1041, 1081, italics added; see People v.
Sandoval (2015) 62 Cal.4th 394, 424.) Put another way, the Anderson guidelines are not
exhaustive, and “reviewing courts need not accord them any particular weight.”
(Sandoval, at p. 424; People v. Halvorsen (2007) 42 Cal.4th 379, 420.) In addition to
referring to planning, motive and manner of killing as guidelines and collectively as a
framework, our high court has also characterized those factors for consideration as an
“ ‘aid [for] reviewing courts in assessing whether the evidence is supportive of an
inference that the killing was the result of preexisting reflection and weighing of
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considerations rather than mere unconsidered or rash impulse.’ ” (People v. Brooks
(2017) 3 Cal.5th 1, 59, italics added.)
Discussing the evidence in context of the framework set forth by our high court in
Anderson, defendant argues there “does not appear to be any evidence” of planning
activity. We disagree. Defendant was obviously armed with a knife. The knife blade,
according to Dr. Josselson, was anywhere from “a little less than six inches” long to quite
a bit longer. The left rear pocket of the shorts defendant was wearing measured six to
seven inches deep. He was apparently living in an encampment across the street from the
recycling center. True, there does not appear to be direct evidence establishing defendant
brought the knife with him from outside of the recycling center. However, defendant
acknowledges he “brought a knife to the recycling center,” and “had a knife in his pocket
and wore gloves.” Additionally, there is no evidence defendant found a knife with a
blade six inches long or longer in the recycling center and armed himself with it.
“We presume in support of the judgment the existence of every fact the jury
reasonably could deduce from the evidence. [Citation.] If the circumstances reasonably
justify the findings made by the trier of fact, reversal of the judgment is not warranted
simply because the circumstances might also reasonably be reconciled with a contrary
finding.” (Jennings, supra, 50 Cal.4th at pp. 638-639.) Moreover, “[a]n appellate court
must accept logical inferences that the jury might have drawn from the circumstantial
evidence.” (Maury, supra, 30 Cal.4th at p. 396; see also Bloom, supra, 48 Cal.3d at
p. 1208 [“Evidence of a defendant’s state of mind is almost inevitably circumstantial, but
circumstantial evidence is as sufficient as direct evidence to support a conviction”].)
Based on all the foregoing, the jury reasonably could have inferred defendant armed
himself with the knife and concealed it in his pocket before leaving his encampment for
the recycling center. While this does not, in itself, suggest defendant was planning to kill
this victim at the recycling center that day, it does establish that he planned to arm
himself with a knife to accomplish whatever might have come about while he was there.
11
According to R.L., he saw defendant “creeping” around at the time of the
stabbing. By “creeping,” R.L. meant defendant was “[c]rouching down, like crouching
down, walking towards somebody.” R.L. observed movement from the doorway towards
where the victim was standing. Defendant creeping up on his victim strongly supports
the conclusion that he was planning the killing, and that the killing was premeditated and
deliberate.
According to G.S., defendant was wearing blue rubber gloves. This, too, suggests
planning and premeditation.
The Attorney General also raises the “unprovoked and surprise nature” of
defendant’s attack on the victim as “further demonstrate[ing] planning.” We agree that
the absence of any clear evidence of a heated exchange between defendant and the victim
suggests it was not a sudden, violent outburst. A reasonable jury could infer that, in the
absence of any such exchange, defendant’s actions were planned. Additionally, from the
absence of injuries to the victim’s hands and wrists, a reasonable jury could infer
defendant’s attack was not the result of a heated confrontation between the victim and
defendant, but instead a planned surprise attack on the victim.
Turning to the second consideration, defendant asserts there was no evidence of
any motive. On this record, we agree. There is no evidence in the trial record
establishing any sort of relationship between defendant and the victim or any reason for
the attack.
As to the manner of killing, defendant acknowledges that “the manner of killing --
deep stab wounds which severed the subclavian artery -- indicates a clear intention to
kill . . . .” However, he further asserts this manner of killing was “certainly not so
‘particular and exacting’ that it tends to prove that the defendant had a preconceived
design to take his victim’s life in a particular way, so as to indicate premeditation rather
than an impulsive or explosive killing.”
12
We conclude, however, that the manner of the killing readily supports the
conclusion that the killing was deliberate and premeditated. The evidence established
defendant stabbed the victim in the left shoulder and neck area into the victim’s chest
cavity. This seven-inch-deep wound was fatal, causing the victim to bleed out.
Defendant also stabbed the victim on the top of the back on the left side and into the left
chest cavity. This wound, which was also fatal, severed the victim’s subclavian artery, a
“rather big artery” that runs under the clavicle. This wound was six inches deep. These
two fatal stab wounds were obviously to vital and vulnerable areas. Additionally, the
victim sustained two minor knife wounds to the same area. The victim had no defensive
wounds to his hands and wrists further suggesting that defendant intentionally snuck up
on the victim in a stealthy way intended to take the victim by surprise. This is strong
evidence not only of planning, but also of premeditation as defendant was approaching
his victim.
These facts bore directly on, and supported the conclusion that, defendant acted
with premeditation and deliberation. (See People v. Morales (2020) 10 Cal.5th 76, 102
[the trial evidence showed, among other things, that the defendant delivered the fatal
wound to one victim’s neck from behind, and in a manner that resulted in no defensive
wounds, and other evidence established the adult victims suffered multiple fatal stab
wounds to the neck or chest; these facts bore directly on whether the defendant acted with
premeditation and deliberation]; see also People v. Booker (2011) 51 Cal.4th 141, 152,
173 [Corina suffered multiple “sharp force injuries” to the neck and bled to death because
her right carotid artery and jugular vein were severed; although the defendant claimed he
only “nicked” her, the wounds on her throat indicate she was killed deliberately]; People
v. Harris (2008) 43 Cal.4th 1269, 1287 [the defendant was armed with a knife and
stabbed the victim without provocation directly in the heart with enough force to
penetrate part of a rib and pierce entirely through the heart, and, in the time it took for the
victim’s daughter to go from the door to the service window, and to take and prepare the
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defendant’s order, there was ample time for him to deliberate and premeditate before
attacking the victim; under these circumstances, we cannot say the jury could not
reasonably have found the defendant guilty of first degree murder].)
A stab wound to a vital area such as the neck “ ‘is indicative of a reasoned
decision to kill.’ ” (People v. Lewis (2009) 46 Cal.4th 1255, 1293 [even if initial
strangulation was spontaneous, the additional act of slashing victim’s throat is indicative
of a reasoned decision to kill].)
The fact that defendant inflicted on the victim two stab wounds to the neck (as
well as two incised wounds to the neck) with an implied interval to reflect supports the
conclusion defendant killed in an intentional and deliberate manner. (People v. Williams
(2018) 23 Cal.App.5th 396, 410 [there is evidence of the intentional and deliberate
manner of killing: two neck stabs, with an implied interval to reflect, as well as the
infliction of blunt force trauma in different areas of the victim’s body].)
“[C]lustered stab wounds” may support an inference that the killing was
deliberate. (People v. Prince (2007) 40 Cal.4th 1179, 1253 [“With regard to method, the
clustered stab wounds support an inference of a deliberate killing”].)
Based on the foregoing, we conclude substantial evidence supports a finding that
the “manner of killing was so particular and exacting that the defendant must have
intentionally killed according to a ‘preconceived design’ to take his victim’s life in a
particular way.” (Anderson, supra, 70 Cal.2d at p. 27.)
Employing the Anderson categories as a framework to evaluate the evidence of
premeditation and deliberation, and viewing the evidence in the light most favorable to
the prosecution, as we must, we conclude substantial evidence supports the jury’s
determination. There was substantial evidence of both planning and that the manner of
the killing demonstrated premeditation and deliberation. As such, the evidence was
legally sufficient to support the verdict.
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In short, we cannot say that, “ ‘ “ ‘upon no hypothesis whatever is there sufficient
substantial evidence to support’ ” the jury’s verdict.’ ” (Penunuri, supra, 5 Cal.5th at
p. 142, italics added.)
DISPOSITION
The judgment is affirmed.
HULL, J.
We concur:
BLEASE, Acting P. J.
HOCH, J.
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