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P. v. Brawand

P. v. Brawand
04:13:2007





P. v. Brawand



Filed 3/20/07 P. v. Brawand 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,



Plaintiff and Respondent,



v.



THOMAS M. BRAWAND,



Defendant and Appellant.



F049525



(Super. Ct. No. CFR17608)



O P I N I O N



APPEAL from a judgment of the Superior Court of Tuolumne County. Eleanor Provost, Judge.



Diane E. Berley, under appointment by the Court of Appeal, for Defendant and Appellant.



Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Kathleen A. McKenna and Connie A. Proctor, Deputy Attorneys General, for Plaintiff and Respondent.



-ooOoo-



Defendant Thomas M. Brawand was convicted by jury trial of first degree murder for the stabbing death of his friend, Richard Bray, who made advances toward defendants girlfriend. Defendant was sentenced to 25 years to life in prison, plus one year for a weapon enhancement. On appeal, he contends (1) insufficient evidence supported the conviction for first degree murder and (2) insufficient evidence supported the conviction for felony murder. We conclude there was substantial evidence defendant committed first degree murder and therefore we affirm the judgment.



FACTS



The Murder



A.



Defendant and his girlfriend, Kirsten Perry, had lived together for about six months when they got arrested for possession of methamphetamine. They were convicted and defendant was sentenced to one year in jail. Defendant was required to turn himself in to begin serving his jail term on April 4, 2004.[1]



Defendant and Perry had been living on defendants workers compensation benefits and renting a room from Patrick Parrish. They were supposed to pay Parrish rent, but they did not, and therefore they had to find somewhere else for Perry to live while defendant was in jail. Perry had nowhere to go, so defendants friend, Bray, suggested she could stay in the motor home on his property.



Bray lived in a cabin on about 10 acres in the hills outside of Sonora. His property was covered with junk, including old cars, trucks, boats, chairs, rocks, a wheelbarrow, a bus, and a lot of dogs. There were over 100 vehicles on the property and tools were strewn on and around the vehicles. Well-worn paths wove in and out of the junk. Historically, Bray had had problems with his neighbors, whom he often threatened with weapons. Officers had responded to many complaints from his neighbors, and a few months before the killing, officers seized about 17 weapons from his property.



As an alternative, defendant and Perry had also considered the possibility of leaving the state to avoid defendants jail term. They discussed stealing property, including a vehicle, from Bray. Defendant had stolen property from Bray in the past. A week or two before the killing, defendant stole Brays chain saw. Defendant and Perry discussed rendering Bray unconscious using Perrys medication. Perry also suggested it might be better just to kill Bray, but she testified it was just a sarcastic joke. Defendant did not respond to it and they made no definite plan.



On the morning of April 3, about a week after their discussion and one day before defendant was required to begin his jail term, defendant bought (but never paid for) an inoperable Volkswagen from his friend, Ronnie Gomes, so Perry would have a car to use while defendant was in jail. Defendant and Perry borrowed Parrishs truck to tow the car to Brays property where defendant planned to fix the car. They took the truck back and returned to Brays property in the afternoon. They were planning to borrow one of Brays vehicles to go back to Parrishs house to get their things.



Perry started to clean out the motor home. It was messy and disgusting, but Perry had injected methamphetamine earlier in the day and felt very awake and motivated. She had been up for two days.[2] Meanwhile, defendant began working on the Volkswagen.



Gomes, who was also a friend of Bray, came to Brays property that day to trade some cars and do some auto work for Bray. Gomes towed a car to Brays property, went back home, then returned later in the evening in his girlfriends Kia. When he came back, he found defendant, Perry and Bray talking and cleaning in the motor home.



That rainy evening everyone smoked methamphetamine and marijuana and drank beer together in the motor home. Everyone was getting along; there was no arguing or fighting. Defendant and Perrys plans were still unsettled and they had made no final decision, but Perry was pretty sure defendant was going to serve his one-year jail term and she was going to live on Brays property.



Bray was known to make flirtatious comments to women and defendant had warned Perry before she met Bray that he had a smart mouth with everyone. Bray often made flirtatious comments to Perry. In general, she did not find them particularly offensive but that night was different. Bray let Perry go through some of his late wifes clothing, including some lingerie. Bray and Perry were alone in the motor home because defendant and Gomes had gone to the store for more beer. When Perry was looking at some of the lingerie, Bray told her he wasnt going to let her stay up there [on his property] for free and he wasnt going to give something for nothing. He said it would be nice for him to be warm at night once in a while. He thought it was very rude of Perry to take the lingerie to wear for someone else, suggesting she should wear it for him and they should have sex together. Brays comments offended her and made her uncomfortable because she knew he was serious. She told him his comments were really uncalled for because she was going to pay him rent. She was not going to have sex with him. Bray stood up, grabbed her buttocks and tried to kiss her. She pushed him away and told him that that wasnt going to happen. He sat back down and acted as though he accepted, but was unhappy about, the finality of her answer. He made no other overtures to Perry the rest of the evening.



Perry did not hear defendant and Gomes return from the store, but a few minutes after her disagreement with Bray, they walked through the door of the motor home. In Perrys opinion, defendant seemed upset and a little angry. He asked Perry if she was okay. They all sat around for 10 or 15 minutes and smoked some methamphetamine and marijuana.



Gomes went outside to try to move the car that had gotten stuck earlier in the day. It had stopped raining and he wanted to try pulling the car with the Kia. Defendant and Bray were talking about cars and other topics, so Perry decided to leave to listen to some music. When she left the motor home, defendant stepped out with her to make sure she was okay. She told him what had happened with Bray, including that he had tried to kiss her. Defendant was upset, but Perry told him not to worry about it at that moment.



At some point, defendant said to Bray, I dont know why youre making comments to my girlfriend. At another time, Gomes told defendant, Just be cool. Hes giving your girlfriend compliments. I thought he was your buddy. Gomes thought he had calmed defendant down. Gomes believed Bray probably meant his comments as a compliment. Gomes did not think Bray would intend any disrespect.



Perry went to the Volkswagen to get her Walkman, walked back past the motor home and sat down by a big screen television that was playing in front of a parked Corvette. Perry was very tired and burnt out. She was crashing from her earlier methamphetamine use. She was also somewhat upset with Bray and did not feel like dealing with anything.



After listening to her music for 10 or 15 minutes, Perry was getting cold and it was starting to rain. She decided to go get a jacket, but when she looked up she saw Bray walking directly toward her from the motor home. She was surprised because she thought he was with the men and she did not want him to bother her again. She was not looking forward to living on Brays property while defendant was in jail.



She immediately asked Bray if he had a coat she could borrow and he said, Yeah, down at the cabin. She walked with him to the cabin. She did not see defendant. They went into the cabin and Bray handed her a coat and they left. They were in the cabin less than five minutes. They started walking back to the motor home in the darkness. Perry was walking in front of Bray and they were having a casual conversation as they walked. She was using a flashlight to negotiate around all the junk.



Suddenly, Perry felt something bump her leg and heard a noise behind her. She thought Bray had fallen down. She turned around to help him, but when she pointed her flashlight in his direction she saw defendant instead of Bray. Defendant was squatted over Bray. Perry could see defendants face and upper body. She saw defendants right arm up in the air. She did not know what was happening so she turned and ran. She heard defendant tell her he was sorry. Bray was screaming and defendant said, This will teach you for fucking with my old lady[.]



Perry ran past the Corvette. She heard Gomes running behind her. She sat down and Gomes sat beside her. He tried to calm her but he looked upset. Bray quit screaming. After a short time, defendant joined them. He had blood on his hands and his clothes. He was shaking and he seemed very upset and nervous. He told Perry she needed to be quiet because she was making the dogs bark. Defendant and Gomes left briefly and Perry stayed by the television. When defendant came back, he told her to go into the cabin and get everything valuable and put it on the driveway. He said he wanted it to appear that Bray had caught someone trying to burglarize his house. Perry made more than one trip between the cabin and the driveway, getting all kinds of stuff, including a camcorder, a DVD player, and a rifle. She saw a pool of blood and realized Brays body had been moved. She never saw his body. As she was making a trip out of the cabin, at about 2:30 or 3:00 a.m., she saw a cars lights at the end of the driveway. She ran into the bushes by the Volkswagen and hid.



Gomess girlfriend, Julie Dinapoli, had gotten a ride from a friend so she could retrieve her Kia, which she needed the next day. She did not know what had happened to Gomes or why he had not returned with her car. She got out of the car and called out to Gomes but no one responded. Dinapoli looked around for about 30 minutes but saw no one. It was dark and rainy and difficult to see anything. She noticed the big screen television and thought it was bizarre to be playing in the middle of the night in the rain. She told her friend to come look. He told her, This is creepy. Lets get out of here. I dont like this. She honked and yelled and finally used her extra key to take the Kia home.



After Dinapoli and her friend left, Perry came out of the bushes and called out for defendant and Gomes. No one answered and she did not know where to go in the dark so she hid in some other bushes at the back of the property in the rain until morning.



At about 7:00 or 7:30 a.m., a resident in the area saw defendant walking across an open field behind his house. Defendant approached and asked if he could use the telephone. He was wearing a tank top and jeans and he was shaking from the cold. The man invited him into his house to get warm and have some coffee. He gave him a long-sleeved shirt to wear. The man did not see defendant as a threat to him. When defendant could not find a ride, the man offered to take him home. Defendant asked if he would first take him back up the road so he could get his bag and his dog. They drove to the end of the road and defendant got out and walked onto Brays property.



When Perry heard the vehicle, she came out of the bushes, crept down to the driveway and saw defendant getting into the truck. She ran down the driveway and got into the truck with him.



They arrived at Gomess house at about 8:00 a.m. Gomes was not home, but Dinapoli was just leaving the house. She was surprised to see them walk up. Defendant and Perry asked her if they could wait for Gomes in the house. After Dinapoli left, they took showers and injected some methamphetamine. Defendant hid his clothes under Gomess deck. Gomes got home about two hours after defendant and Perry arrived.



B.



According to Gomess version of the events, after he left the motor home, he spent about 30 minutes trying unsuccessfully to move the stuck car. When he parked the Kia, he noticed that all the dogs were barking. He went back to the motor home but no one was there. He walked toward the cabin and saw defendant and Bray silhouetted by a light behind them. He saw defendant run up behind Bray and hit him on the head with an object. It made the most sickening sound Gomes had ever heard. He heard defendant tell Bray, Thats for fucking with my old lady, as he was hitting him. Bray went down. Gomes thought Bray may have gotten back up and tried to defend himself. Gomes could not see any weapon at that time and he could not hear anything because all the dogs were barking. When Gomes saw Bray fall to the ground again, Gomes took out his flashlight and pointed it in his direction. He saw defendant stab Bray repeatedly with a knife. Defendant had blood all over his hands and arms.



When defendant noticed the light from Gomess flashlight, he stepped over Brays body and started chasing Gomes, who took off running. Gomes thought defendant would kill him next. Gomes ran by Perry, who was kneeling down. She said, Oh, my God. He kept running until he reached another property, losing the key to the Kia as he ran. When it started to rain again and get very cold, he got into the unlocked cab of a large truck. He locked the doors and stayed there until the sun came up. He had a large folding knife that he must have left on the truck seat.[3]



As it became light, Gomes walked a long way until he approached a house. He asked a woman if she would give him a ride to town for $20. He told her he had been at a party the night before and was left without a ride home. He said he spent the night in an old building. She told him there were mountain lions outside and brought him into the house for coffee. The womans husband gave Gomes a ride to his house.



When Gomes opened his front door, he was surprised to find defendant and Perry sitting in his house. Defendant was wearing some of Gomess old clothes and shoes. Gomess wife drove up and Gomes did not want her involved so no one talked about what had happened.



Gomes testified he was aware that defendant told the officers Gomes had killed Bray.



The Investigation



That morning, Richard Etheridge, a friend of Bray, called 911 and reported finding his dead body. It was next to the driveway, covered with a tarp. Etheridge saw Brays foot sticking out so he pulled the tarp away and found him lying on his stomach with puncture wounds on his back.



Responding officers observed fresh tire tracks, a Kia key, various items, and Brays body lying prone on a blue plastic tarp. They saw two clean puncture wounds on his back and blood on his face. A wheel barrow, a ratchet and a fixed-blade knife were near his body. There were blood stains in the soil several feet from where his body had been dragged. Brays jacket and shirt had several cuts consistent with knife wounds. A cut on one sleeve suggested Bray had raised an arm to defend himself. Fibers and hairs were found on the ratchet and DNA on the knife matched Brays DNA. A shirt in a freezer (apparently not functional) near the cabin had small blood stains on it.[4]



Bray had suffered a blunt force injury to the back of his head, which caused hemorrhaging around various parts of his brain. The head wound could have been debilitating or even fatal itself, or Bray may have been able to move, rotate and speak after its infliction. Bray had been stabbed 14 times in the face, hand, arm, neck, chest and back. Five of the 14 wounds were fatal. One wound was five and one-quarter inches deep, penetrating the rib cage and fatally penetrating the lung. Another similar wound fatally penetrated the other lung. Some wounds were consistent with defensive wounds.



When the officers went to Gomess house on April 5, defendant was present. An officer found a pair of damp white shoes on the dryer that smelled as though they had been washed with bleach. Defendant told an officer he had been living at Parrishs house. He explained the events of the previous day as follows. He and Perry went to Brays property. Defendant was working on a car. Gomes was there because he had towed a car up to the property. Two men defendant described as biker[s] pulled up in a big white truck, got out and started yelling and screaming at Bray that they were going to kill him. Bray yelled and screamed back at them. Defendant did not know the men and could not identify them. Defendant was afraid so he turned and ran into the woods. He told Perry to run and they became separated. He spent the night in the woods. He was lost but he came to a resident who let him use the telephone. The resident gave him a ride back to Brays property to get his dog. He yelled for Bray but got no response. Perry rushed out of the woods and got in the vehicle with them. The man drove them to Gomess house.



As the officers interview of defendant proceeded, defendants story changed. He said the two people were not unknown bikers but were in fact two people he knew, Jason Gurney and Richard Etheridge. They argued with Bray over money and a car. Defendant said he saw Gurney strike Bray in the head with a shiny object and then stab him to death. Defendant said he got scared and he, Perry and Gomes all ran away.



Perry overheard the officer interview defendant and Gomes, so she told the officer the same story about seeing two people kill Bray. Defendant had told her to identify these particular people as the perpetrators.



Two days later, on April 7, more officers were at Gomess house. They found a tank top, jeans, a sock, shorts, a belt and a cap wadded up underneath the deck off the back of the house. Officers again interviewed defendant, who had been arrested on an unrelated warrant. He repeated the story about Gurney and Etheridge, but on further questioning, he eventually changed his story again, this time saying he saw Gomes kill Bray. Gomes hit Bray with a ratchet then stabbed him. Defendant believed Gomes wanted to rob Bray because Gomes had seen a lot of neat shit laying around that he wanted. Although they got scared after Gomes killed Bray, they stayed at the scene and tried to take some items.



On April 11, in a freezer near the cabin, officers found a white thermal shirt and a gray work shirt. The officer believed the white thermal shirt was the same shirt defendant was wearing the night of the murder because it matched the one he was wearing when he went to get beer that night.[5]



That day, the officers interviewed Perry and Gomes at the crime scene and they walked through what had happened. The information they gave the officers was consistent with their testimony at trial.



On May 16, an officer received a message that defendant wanted to speak to him. Defendant gave the officer a written statement in which he explained that he confronted Bray about the advances he was making toward Perry. Bray pulled a gun and defendant hit him with a ratchet. Bray went down and defendant walked away. When Bray started to move for the gun, Gomes stabbed him to death.



When the officer told defendant that Perry and Gomes had revealed what had happened, defendant changed the story to implicate himself. He repeated the same story but said he went back to stab Bray when he saw him trying to get the gun. Defendant said he used a knife he had found in the motor home earlier that evening and had sharpened.



Defense Evidence



A.



Defendant testified on his own behalf. He explained he had been using methamphetamine for over 20 years. He had a prior conviction for possession of methamphetamine for the purposes of sales. He was scheduled for a sentencing hearing on April 4 on that case and had expected to go to jail that day.



Defendant had worked as a laborer until he injured his back on the job. He then received about $500 per month in workers compensation benefits and was essentially homeless for quite a while. He had no vehicle and usually got rides with friends, such as Gomes or Parrish.



Defendant met Bray through a mutual friend in October 2003. Defendant started staying on Brays property in November 2003. Defendant considered Bray a good friend who helped him out when he was in need. They would also use methamphetamine together.



Defendant met Perry in August 2004. She was also a methamphetamine user. At that time, defendant was renting a room at Parrishs house. Defendant and Perry started living together a week after they met. They were looking for a safe place for Perry to live while defendant was in jail. Bray offered to let her stay on his property.



At some point, defendant and Perry talked about alternatives to jail. They discussed leaving the state but had no real plans. They had no money because he had not saved any of defendants benefits. About two weeks before the killing, they talked about drugging Bray, taking some of his property and leaving town. When Perry mentioned that they might as well kill him, defendant did not take her seriously and he did not consider killing Bray.



Bray had the habit of making suggestive comments to women. Initially, defendant was not concerned about the comments Bray made to Perry because he did not see them as a threat and he had never known Bray to try anything.



Defendant and Perry usually injected methamphetamine, which made defendant extremely high and euphoric. He felt as though he could do anything. When he came down from it, however, he felt very irritable. On April 3, he had gotten only two hours of sleep. He had only taken naps in the previous six or seven days. In the afternoon, he took Parrishs truck to Gomess house to get the Volkswagen and tow it to Brays property. He and Perry were planning to spend the night there. He started to fix the car so Perry could drive it while he was in jail but he could not get it running.



When Bray arrived, they went to the motor home and drank beer and smoked methamphetamine. The motor home was a mess and junk was everywhere. Defendant and Bray argued about a recording Bray had made and given to Perry. Perry had told defendant about it that morning. On the recording, Bray told Perry that defendant did not love her, but he did. Defendant confronted Bray about it and Bray told him that if he wanted to fight they would do it later.



At some point that day, Bray gave defendant a hunting knife to sharpen. Defendant put it in his back pocket.



By the time defendant and Gomes went to the store, defendant had calmed down and was not concerned about leaving Perry alone with Bray. He did not see Bray as threat at the time and he considered him his friend, despite their frequent arguments. He and Gomes were gone for about 30 minutes.



When they came back, they returned to the motor home. As they approached, they could hear voices. Defendant heard Bray tell Perry that she was going to model the lingerie for him when defendant went to jail. He spoke in an unusually aggressive voice. Defendant was angry but he did not confront Bray because he did not know if Bray was armed. Defendant had heard Bray threaten neighbors many times before and defendant knew he had guns on the property. So, when defendant entered the motor home, he opened a vodka and started drinking it. He was upset so he drank the whole bottle.



When Perry said she wanted to listen to music, defendant left with her to have a cigarette. She told him that Bray had grabbed her buttocks and tried to kiss her. She said he expected her to sleep with him while defendant was in jail. Defendant became irate but Perry calmed him down and told him not to do anything. He went back into the motor home with Bray and Gomes. He listened to them talk about cars. He felt betrayed and very upset. He did not want Perry to stay on Brays property but they had no other options.



About 15 minutes after Perry left the motor home, Bray walked out. Gomes left right after Bray. Gomes was going to try to move the stuck car. After about 10 minutes, defendant went to find Perry. He walked past the television and on to the cabin. Through the back window of the cabin, he saw Bray and Perry inside the cabin. They were coming out the door onto the front porch. Bray had his hand on Perrys lower back. Defendant was extremely upset and he was ready to confront Bray. Seeing Bray touch Perry made defendant decide he had to do something about it.



When defendant met up with them, he confronted Bray and told him he had to stop disrespecting him and his girlfriend. Perry walked on. Bray said something about fighting. Defendant grabbed a ratchet out of the nearby toolbox and hit Bray in the back of the head. He did it because he was upset, had had enough of Bray and thought he might have a gun. Bray fell forward onto the ground and told defendant he was going to kill him. Perry started to run away. Defendant jumped on top of Bray, who was trying to get up. Defendant pulled the knife from his back pocket, told Bray, [T]his is what you get for fucking with my old lady, and started stabbing him.



Defendant testified that he snapped. He stated, I snapped. I dont know, I snapped. I was upset. I had enough. I had been betrayed by him.



He got up off Bray and went to find Perry. She was crying by the television. Gomes was there too. Defendant hugged Perry and told her he thought he had killed Bray. Defendant was shaking and sweating. Gomes asked him what had happened and defendant said, I think I just killed [Bray].



Defendant confirmed that Bray was dead. Defendant took off some of his clothes and put them in the freezer. He went back and told Perry to take valuable items and make it look like a robbery. Gomes wanted to get rid of the body so they tried to put it in a wheelbarrow but it was too heavy. They dragged the body and Gomes wrapped it in a tarp.



While Perry and defendant were moving items out of the cabin and motor home and piling them outside, a car pulled up at the end of the driveway. Defendant thought it was the police. He ran to the cabin and yelled at Perry to run. She took off running in one direction; defendant and Gomes ran in another. Eventually, defendant and Gomes were separated. Defendant ran all the way to a field behind a trailer park. He found a shed and spent the night in it.



In the morning, he contacted a resident who gave him a shirt and a ride. When they stopped at Brays property, defendant got his things and his dog but he did not check on Bray. He did not want to see him again. Perry came running out of the woods as he walked down the driveway back to the truck. The resident dropped them off near Gomess house.



At Gomess house, defendant took off his clothes and hid them under the deck. When Gomes returned home, he started talking about what had happened but defendant did not want to talk. Defendant and Perry stayed at Gomess house that night. The police contacted them the next day. Defendant did not tell them the truth because he was afraid to spend the rest of his life in prison. The first story he told the police was the story he, Perry and Gomes had discussed. The names of the two men just popped into defendants mind.



When everything was over, defendant felt very upset about having killed Bray. He could not believe he had done it. He thought the methamphetamine had something to do with it because he had been awake for so long and had been using it excessively. He believed his emotions changed when he was using methamphetamine. He eventually decided he could not lie anymore and he told the police the truth. He accepted that he was going to serve time in prison.



Perry was planning to start drug court due to her conviction. Drug court involved attendance at a lot of meetings and sessions, perhaps four or five times every week. Defendant had discussed this with Bray and Bray said he would give her a ride when she needed one. He was willing to help with her transportation. Although defendant attempted to provide a car for Perry, it did not yet run. Furthermore, Perry did not know how to drive a stick shift. Bray, however, had promised to teach her how to drive it safely. That night, when defendant decided he could not fix the car, he quit working on it and partied instead. At that point, Bray became responsible for transporting Perry.



An officer testified Perry said she regretted making certain comments to defendant, such as joking about killing Bray and then telling defendant Bray had tried to kiss her. On cross-examination, the officer said Perry never mentioned a confrontation between defendant and Bray occurring immediately before defendant struck Bray.



A neighbor testified that he had lived on the property abutting Brays property for about 20 years. He described Bray as the neighbor from hell and called him a crackhead. Bray had threatened his life on many occasions. Once or twice every year, Bray would pull a weapon on him, threaten to kill him or his wife, and threaten to burn down his house. Officers made frequent visits to Brays property. The neighbor had shot and killed three of Brays dogs because they were killing his chickens.



A forensic psychologist specializing in drug and alcohol cases, testified that at high doses methamphetamine can cause a prolonged state of alertness, arousal, fear and readiness to deal with danger. It can cause hypervigilance, irritability and paranoia. It tends to intensify emotional responses, even when taken in small doses. Many acts of violence occur during the crashing or tweaking period when a user comes down off the methamphetamine and needs more of the drug and becomes nervous, irritable and possibly paranoid. Even though the person is coming down, he or she is still under the influence of the drug. The person tends to act more impulsively and with impaired judgment when under the influence and may commit violence without any conscious planning.



B.



On cross-examination, defendant testified that after he told Bray he was mad because Bray was disrespecting him and his girlfriend, Bray started to speak but defendant hit him before he could say much. The blow was hard enough to fracture Brays skull. Bray survived the blow, was upset and told him, Im going to fucking kill you. Defendant grabbed the knife, got on top of him and stabbed him 14 times in the back, neck and chest. Bray was trying to roll over and get defendant off of him as defendant was stabbing him.



Defendant testified the knife in his back pocket was contained in a leather sheath but he did not remember pulling the sheath off before stabbing Bray. He denied having taken the sheath off earlier with the intent to kill Bray.



Defendant testified he knew that Bray liked to flirt with women. Bray was old enough to be Perrys father. When defendant introduced Perry to Bray, defendant told Perry that Bray would flirt with her and she should not let it bother her. But that night was different because Bray was not just flirting anymore; he was telling Perry in an aggressive voice what she would do for him. Perry was upset by it too but she told defendant to calm down. She did calm him down but they did not leave because they had no where else to stay. Defendant agreed with the prosecutors characterization that defendant got upset and calmed down, [he] got upset again and calmed down[,] [and he] got upset a third time and killed Richard Bray.



Rebuttal Evidence



An officer testified that the window defendant testified he had looked through from the back of the cabin was covered by a blanket, as shown in a photograph.



DISCUSSION



Defendant contends there was insufficient evidence he acted with premeditation and deliberation when he killed Bray. He asserts that his striking and stabbing of Bray was a sudden, angry, explosive attack on Bray, brought on by a fit of jealousy.



In reviewing a claim of insufficiency of evidence, we review the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Silva (2001) 25 Cal.4th 345, 368.) We apply the same standard when the evidence is primarily circumstantial. (People v. Perez (1992) 2 Cal.4th 1117, 1124-1125.)



A verdict of deliberate and premeditated first degree murder requires more than an intent to kill; it requires deliberation and premeditation. ( 189.) Deliberation refers to careful weighing of considerations in forming a course of action; premeditation means thought over in advance. [Citations.] (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) Generally, it must be shown that the killing resulted from a preexisting reflection, rather than an unconsidered and rash impulse. (People v. Hughes (2002) 27 Cal.4th 287, 342.)



In People v. Anderson (1968) 70 Cal.2d 15, the Supreme Court identified three categories of evidence relevant to resolving the issue of premeditation and deliberation: planning activity, motive, and manner of killing. (Id. at pp. 26-27.) However, as the court later explained in People v. Pride (1992) 3 Cal.4th 195: Anderson does not require that these factors be present in some special combination or that they be accorded a particular weight, nor is the list exhaustive. Anderson was simply intended to guide an appellate courts assessment whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse. [Citation.] (Id. at p. 247.) Thus, while premeditation and deliberation must result from careful thought and weighing of considerations [citation], we continue to apply the principle that [t]he process of premeditation and deliberation does not require any extended period of time. 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.... [Citations.] [Citation.] (People v. Hughes, supra, 27 Cal.4th at pp. 370-371.)



Here, there was ample evidence supporting an inference that the killing occurred as a result of preexisting reflection rather than unconsidered or rash impulse. Defendant armed himself with a knife earlier in the day. He and Perry had previously discussed alternatives to jail time, most of which included harm to Bray. They had discussed stealing from him and they had even mentioned killing him, although Perry claimed it was in jest. Defendant and Perry usually tolerated Brays flirtatious and inappropriate remarks toward Perry, but they both believed his comments that evening were more offensive than usual because they thought he was seriously demanding sexual payment from Perry in return for a place to live while defendant was in jail. The evidence, including defendants testimony, established that defendants anger toward Bray was aroused and pacified more than once throughout the day. Defendant stated he was irate and betrayed, but afraid to confront Bray because he was often armed. The jury reasonably could have inferred that defendant planned and intended to kill Bray because of his advances toward Perry and that he waited until he could strike Bray unexpectedly from behind so he would be incapable of defending himself. (See People v. Brito (1991) 232 Cal.App.3d 316, 323 [gunshot wound to the back suggests a preconceived plan].)



Defendant waited and even engaged in social interaction with Bray. After Bray left the motor home, defendant followed him to Perry. When Bray and Perry came out of the cabin, defendant hid then struck Bray from behind in the dark. Defendant hit Bray on the back of the head with a ratchet with a blow so hard it fractured his skull and caused the large man to fall to the ground. The blow could have been fatal but it was not. So, as Bray lay face down, unable to defend himself, defendant removed the knife from his pocket, unsheathed it and stabbed Bray in the back. Bray struggled and attempted to rotate. As he did, defendant continued stabbing him. In combination with the other evidence, the 14 stab wounds suggested that defendant did not simply lose control, but deliberately continued in his effort to kill Bray until he succeeded. The evidence here supports a reasonable conclusion that defendants decision to kill was the result of a cold and calculated judgment and decision. We conclude there was substantial evidence of premeditated and deliberate first degree murder. In light of this conclusion, we need not reach the issue of whether substantial evidence supported a conviction for felony murder.



DISPOSITION



The judgment is affirmed.



_________________________________



Kane, J.





WE CONCUR:



__________________________________



Harris, Acting P.J.



__________________________________



Dawson, J.



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Analysis and review provided by Spring Valley Property line attorney.







[1] All dates refer to 2004 unless otherwise noted.



[2] On cross-examination, Perry testified she and defendant had been awake for six to seven days.



[3] The owner of the property found the knife under the truck the next day.



[4] The stains were not testable for DNA.



[5] A surveillance tape showed defendant and Gomes in the store.





Description Defendant was convicted by jury trial of first degree murder for the stabbing death of his friend, Richard Bray, who made advances toward defendants girlfriend. Defendant was sentenced to 25 years to life in prison, plus one year for a weapon enhancement. On appeal, he contends (1) insufficient evidence supported the conviction for first degree murder and (2) insufficient evidence supported the conviction for felony murder. Court conclude there was substantial evidence defendant committed first degree murder and therefore Court affirm the judgment.

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