Filed 8/4/26 P. v. Herrera CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G063887
v. (Super. Ct. No. 22CF0074)
KEVIN IVAN HERRERA, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
Gary S. Paer, Judge. Affirmed.
Valerie G. Wass, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Arlene Sevidal, Assistant Attorney General,
Melissa Mandel, Collette Cavalier and Tami Falkenstein Hennick, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant Kevin Ivan Herrera was convicted of first degree
murder based on surveillance videos that show him fatally stabbing a man on
a street in Santa Ana. On appeal, Herrera contends: (1) the trial court erred
by admitting the surveillance videos into evidence and allowing police
detectives to testify about their contents; (2) the jury instructions on
eyewitness identification were flawed; and (3) there is insufficient evidence to
support the jury’s finding he acted with premeditation and deliberation.
Herrera also asks us to independently review the records the trial court
examined in connection with his Pitchess and Brady motions, which we have
done. (See Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess); Brady v.
Maryland (1963) 373 U.S. 83 (Brady).) Finding no basis for reversal, we
affirm the judgment.
STATEMENT OF FACTS
Because there were no witnesses to the fatal stabbing, the
prosecution’s case against Herrera rested on surveillance footage from
multiple locations around the crime scene. The footage shows the victim
Mylik Wright leaving a nearby 7-Eleven store at around 7:00 p.m. on
January 6, 2022. Wright walks through an alley and turns onto Pine Street,
which is where a large man with a shaved head, later identified as Herrera,
first appears in the footage. Herrera is shown walking on the sidewalk about
30 seconds behind Wright. He continues following Wright for several minutes
as Wright turns onto Baker Street.
At that point, both men are walking in the street. Herrera is just
a few steps behind Wright, with a row of parked cars on their right. Halfway
down Baker, Wright stops and leans back against one of the cars. Herrera
keeps walking, and as he passes Wright, the two appear to make eye contact
for several seconds. Herrera then continues walking for about another 20
2
feet. The surveillance footage shows he is holding a shiny object in his right
hand, which is extended by his side. After stopping to let a car go by, Hererra
turns around and starts walking back toward Wright. Wright steps into the
middle of the street to meet him face-to-face, and then Herrera raises his
right arm and makes a stabbing motion toward Wright’s chest. After that,
they step apart and stare at each other for a moment before Wright runs off
in one direction and Herrera walks off in the other.
Wright did not make it far. Shortly after the stabbing, a resident
discovered him lying face down at the end of her driveway on Pine Street. She
called the police, but Wright was dead by the time they arrived. He died from
a single stab wound to the middle chest that penetrated his ribs and pierced
the right ventricle of his heart. A police officer at the scene noticed Wright
was unkempt and looked like a transient. He was unarmed, and no weapons
were found near the crime scene.
The next day, investigators began reviewing surveillance videos
the police had obtained from multiple addresses around the crime scene.
Based on their prior contacts with Herrera, Detectives Christopher Shynn
and Francisco Gomez both recognized him in the videos as the person who
stabbed Wright. Their identifications of Herrera stemmed not only from his
facial features, skin color, and large build, but also his poor posture and
distinctive manner of walking.
Four days later, on January 11, 2022, the police arrested Herrera
at his home in Santa Ana, where he lived with his mother, Alma, and other
family members. At the house, the police found clothing—a long sleeve denim
shirt, dark shorts, and white tennis shoes—that looked similar to what
Wright’s assailant was wearing at the time of the stabbing. They also learned
from Alma that Herrera left the house four days before the stabbing and did
3
not return home until two days after the stabbing. According to Alma,
Herrera was six feet two inches tall and weighed about 250 pounds at that
time.
When the police showed Alma a video clip of the stabbing, she
said that, although she was not sure, the stabber looked like her son. Asked
why she thought so, Alma said, “By his walk.” After watching a second clip,
Alma said the stabber’s clothes also matched what Herrera was wearing
when he left her house before the stabbing.
At trial, the prosecution introduced 12 surveillance videos and 10
still photographs that were extracted from the videos. It also introduced a
video showing Herrera being booked into jail following his arrest. A sheriff’s
deputy involved with the booking testified Herrera had a distinctive gait, in
that he “kind of rocked himself while he was walking.”
During her trial testimony, Alma was questioned about her
pretrial review of the surveillance videos and was shown the videos again. On
direct examination, she said she recognized Herrera in the videos. But on
cross-examination, she said she was only 20 percent sure the assailant in the
videos was her son.
The jury convicted Herrera of first degree premeditated murder
while personally using a deadly weapon. After finding Herrera had a prior
strike conviction, the trial court sentenced him to 50 years to life in prison.
DISCUSSION
I.
ISSUES REGARDING THE SURVEILLANCE VIDEOS
Herrera contends the surveillance videos and still photographs
extracted from them should have been excluded for lack of authentication,
and the trial court erred in allowing the police detectives to offer their
4
opinions about what was depicted on the videos. We find both contentions
unavailing.
A. Authentication of the Surveillance Videos and the Still Photographs
1. Factual Background
Gustavo Moroyoqui was one of the lead investigators in the case.
At trial, he testified about the surveillance videos the police collected after
the stabbing from multiple homeowners in the area. Because some of the
videos did not have accurate time and date stamps on them, Moroyoqui spoke
with the homeowners about that issue and determined when they were
actually taken. He was then able to correlate the videos and piece together
the route Wright took from the 7-Eleven store to the scene of the stabbing.
As the videos were being played to the jury in court, Moroyoqui
identified Wright at various locations along the route, and he pointed out
where the man later identified as Herrera was in relation to Wright.
Moroyoqui also testified about the contents of the still photographs that were
extracted from the surveillance videos. Those photos focused primarily on the
interaction between Wright and Herrera on Baker Street before, during, and
after the fatal stabbing.
2. Analysis
Herrera claims the prosecutor failed to properly authenticate the
surveillance videos and the still photos, thereby violating his constitutional
rights to due process and a fair trial. Before getting to the merits of that
claim, we briefly address two procedural issues raised by the parties.
First, the Attorney General correctly notes that, although
Herrera’s trial counsel objected to the still photos, she did not object to the
surveillance videos. Therefore, Herrera has forfeited his right to challenge
the videos on appeal. (Evid. Code, § 353; People v. Cage (2015) 62 Cal.4th 256,
5
287.) Nevertheless, because Herrera claims his attorney was ineffective for
failing to object, we exercise our discretion to not apply the forfeiture rule for
the sake of judicial economy. (See People v. Butler (2003) 31 Cal.4th 1119,
1128 [taking up forfeited issue to forestall a subsequent petition for a writ of
habeas corpus based on ineffective assistance of counsel]; People v. Williams
(2000) 78 Cal.App.4th 1118, 1126 [same].)
The second procedural issue relates to the briefing on appeal.
Herrerra contends that by focusing solely on the surveillance videos and not
providing any argument regarding the admissibility of the still photos in his
respondent’s brief, the Attorney General has impliedly conceded the photos
should have been excluded for lack of foundation. However, just as we have
discretion to consider issues Herrera failed to raise in the trial court, so too
do we have discretion to consider issues the Attorney General failed to brief
on appeal. (People v. Hill (1992) 3 Cal.4th 959, 995, fn. 3, overruled on
another ground as stated in Price v. Superior Court (2001) 25 Cal.4th 1046,
1069, fn. 13; People v. Kim (2011) 193 Cal.App.4th 836, 847.) In the interest
of justice, we exercise our discretion to address the merits of the trial court’s
decision to admit the still photographs into evidence.
To satisfy the authentication requirement for a photograph or a
video recording, the proponent of the evidence must show it is a fair and
accurate representation of the scene depicted. (People v. Goldsmith (2014) 59
Cal.4th 258, 267.) This does not require testimony from the person who took
the subject photo or video. (Id. at p. 268.) Instead, authentication may be
established “by other witness testimony, circumstantial evidence, content and
location.” (Ibid.) The proponent of the evidence need only produce evidence
from which the jury could infer the photo or video in question accurately
reflects what it purports to show. (People v. Valdez (2011) 201 Cal.App.4th
6
1429, 1434–1435.) “‘The fact conflicting inferences can be drawn regarding
authenticity goes to the . . . weight [of the] evidence, not its admissibility.’”
(Goldsmith, at p. 267.)
During his testimony, Detective Moroyoqui described the various
locations from which the surveillance videos were obtained following the
stabbing. He also explained how he reviewed the videos by date, time and
content to ensure they were relevant to this case. Based on the various
locations from which the videos were taken and what they showed,
Moroyoqui was able to correlate them and trace the route Wright and
Herrera traveled from the 7-Eleven store to the scene of the stabbing.
Moroyoqui explained he was able to do that because the videos
match up from one location to the next. For example, the video in people’s
exhibit No. 12 shows Wright and Herrera walking west on Pine Street and
turning north on Baker Street near a white van, and people’s exhibit No. 13
shows them walking north on Baker moments later by the same white van.
In that sense, the videos mutually reinforce one another, ensuring their
authenticity. Given how the videos logically fit together, the trial court did
not abuse its discretion in allowing the jury to consider them.1
1
In arguing otherwise, Herrera notes the foundational basis for
the authenticity of the videos was not as extensive as the foundation laid for
the video evidence in People v. Tran (2020) 50 Cal.App.5th 171. But in Tran,
the video shown to the jury was derived from several other videos that had to
be enhanced and synchronized as part of a sophisticated video tracking
process. (Id. at pp. 177–182.) Rather than proving the videos played at
Herrera’s trial were not properly authenticated, Tran simply illustrates that
foundational issues are fact specific, and more evidence may be required to
establish authenticity when the images in question have been manipulated
from their original format.
7
Turning to the still photographs, the record shows Herrera
objected to them in the trial court for lack of foundation and on the basis they
were misleading and unduly prejudicial within the meaning of Evidence Code
section 352. However, as the trial court explained in overruling the objection,
the photos added “nothing new” because they were simply images from the
surveillance videos that were “frozen in time.” Moreover, the photos were
highly relevant because they captured the interaction between Wright and
his assailant in the critical moments before, during, and after their fatal
encounter. All things considered, we discern no abuse of discretion in the trial
court’s decision to admit the photos into evidence.
B. Identification Testimony from the Detectives
As set forth above, Detectives Shynn and Gomez testified they
recognized Herrera as Wright’s assailant when they reviewed the
surveillance videos the day after the stabbing. Herrera contends their
testimony lacked foundation, invaded the province of the jury, and violated
his right to a fair trial. We disagree across the board.
1. Factual Background
Before trial, Herrera filed a motion to exclude identification
testimony from the detectives for lack of foundation and undue prejudice.
Herrera argued the detectives did not have sufficient contact with Herrera to
make their identifications reliable, and because identification was the
ultimate issue in the case, it should rest exclusively with the jury. The trial
court held an evidentiary hearing to address those issues.
At the hearing, Detective Shynn testified he had four contacts
with Herrera before the present case arose in January 2022. The first was in
April 2018, when he detained Herrera on the street, took him into custody,
and interviewed him for about 20 minutes. At that time, Shynn noticed
8
Herrera, then age 17, was large in stature, but Shynn did not notice anything
peculiar about the way Herrera walked.
The second contact was in September 2019, when Shynn arrested
Herrera on suspicion of criminal activity and booked him into jail. During
this encounter, which lasted between 30 and 60 minutes, Shynn noticed that,
in terms of posture, Herrera’s head protruded forward somewhat. In addition,
Herrera’s legs seemed disproportionally small compared to his upper body.
The third contact occurred on a later date, as Herrera was being
taken into custody by other police officers. Herrera was seated at the time,
and Shynn saw him for a few minutes from about 10 feet away.
Shynn’s fourth and final contact with Herrera occurred sometime
after 2019, when Shynn testified as a gang expert during Herrera’s
preliminary hearing in an unrelated case. While Shynn was on the witness
stand, he was able to see Herrera seated at counsel’s table, about 15 feet
away. Shynn noticed Herrera’s head was “leaning forward almost in a bent
over manner.”
Like Detective Shynn, Detective Gomez testified at the pretrial
hearing regarding the basis for his identification of Herrera as Wright’s
assailant. Gomez stated Herrera was a victim of a shooting he investigated in
2016. As part of the investigation, Gomez spoke with Herrera at the hospital,
at the police station, and at Herrera’s home, for about three hours in total. In
identifying Herrera in the present case, Gomez not only relied on his contacts
with Herrera in 2016, but he also looked at various photographs that were
taken of Herrera at that time. Based on his personal contacts with Herrera
and the photos, Gomez testified Herrera resembled Wright’s assailant in
terms of stature, build, and facial features.
9
After hearing argument on the issue, the trial court ruled Shynn
and Gomez each had sufficient personal knowledge of Herrera’s appearance
before this case arose to allow them to testify they recognized Herrera from
the surveillance videos as Wright’s assailant. In so ruling, the court
determined the testimony would be more probative than prejudicial, and any
weaknesses in the foundation for their knowledge of Herrera’s appearance
went to the weight, not admissibility, of their testimony. Viewing the
detectives’ identification testimony as “just another competent piece of
evidence that the jury can either accept or disregard,” the court denied
Herrera’s motion to exclude it.
2. Analysis
Evidence that a police officer identified the defendant from
surveillance videos or photos of a crime may be admitted if the officer had
prior personal knowledge of the defendant and such evidence would assist the
trier of fact in determining the issue of identity. (People v. Leon (2015) 61
Cal.4th 569, 601.) The trial court has broad discretion in determining
whether these requirements have been met, and we will not disturb a court’s
decision to admit evidence regarding an officer’s identification of the
defendant unless the court clearly abused its discretion. (People v. Mixon
(1982) 129 Cal.App.3d 118, 127.)
That did not happen here. Herrera contends Detectives Shynn
and Gomez did not have enough prior contact with him to make their
identifications relevant to the issue of identification. As the trial court
pointed out, however, the degree of the detectives’ personal knowledge of
Herrera before the stabbing went to the weight, rather than the
admissibility, of the evidence. (People v. Perry (1976) 60 Cal.App.3d 608, 613.)
In that regard, it is important to keep in mind the jury heard extensive
10
testimony about the detectives’ prior contacts with Herrera. Therefore, the
jury was well positioned to assess the value and validity of the detectives’
identifications.
The trial court also properly understood the detectives’
identifications of Herrera were only one aspect of the prosecution’s case. The
jury also heard from Herrera’s mother on the issue of identification, and it
saw the videotape of Herrera being booked into jail following his arrest in
this case, which showed his posture and gait. Of course, the jury also saw the
surveillance videos and still photos surrounding the stabbing itself, from
which it could independently determine whether Herrera was the person who
killed Wright.
Under these circumstances, the evidence regarding the
detectives’ identification of Herrera did not improperly invade the province of
the jury or constitute an improper opinion regarding Herrera’s guilt. The
evidence was but one piece of the evidentiary puzzle, and the trial court did
not abuse its discretion or violate Herrera’s fair trial rights by allowing the
jury to consider it.
C. Interpretation of Surveillance Videos
Herrera also contends the trial court prejudicially erred in
allowing Detective Moroyoqui to testify about the surveillance videos that
depicted Wright and his assailant walking from the area around the 7-Eleven
store to the scene of the crime. Herrerra does not challenge Moroyoqui’s
testimony to the extent it helped the jury understand how the videos fit
together chronologically and geographically in relation to the stabbing.
Instead, Herrera claims Moroyoqui offered improper lay opinion and invaded
the province of the jury by testifying the assailant was “following” Wright and
11
that the object the assailant had in his hand before the stabbing “appeared”
to be a knife.2
The claim is not well taken. Herrera argues Moroyoqui’s
testimony about the assailant following Wright improperly suggested the
assailant was stalking Wright, as opposed to simply walking behind him. But
the record shows Moroyoqui often used the phrase “following behind” to
describe what the assailant was doing in relation to Wright. This suggests
Moroyoqui was merely pointing out the assailant’s physical location vis-à-vis
Wright, as opposed to implying the assailant was shadowing Wright for some
nefarious purpose. It is not reasonably likely the jury construed Moroyoqui’s
testimony in the latter fashion.
Nor is it remotely possible the jury was prejudiced by how
Moroyoqui described the assailant’s movement or by his testimony the
assailant appeared to be carrying a knife before the stabbing. That is because
the jurors were able to watch the surveillance videos for themselves. The
jurors were far more likely to draw their own conclusions from the videos, as
opposed to blindly relying on Moroyoqui’s descriptions of them.
Moreover, regardless of what Moroyoqui said in his testimony
about what was shown on the videos, there is no getting around the core
undisputed facts of the case: (1) the assailant was holding a shiny object in
his right hand after he passed Wright in the street; (2) moments later, the
assailant raised his right hand and thrust the shiny object toward Wright’s
2
Although Herrera did not object to much of this testimony at
trial, thereby raising the prospect of forfeiture, we consider his claim on the
merits rather than effectively converting it into a habeas petition based on
ineffective assistance of counsel. (People v. Butler, supra, 31 Cal.4th at p.
1128; People v. Williams, supra, 78 Cal.App.4th at p. 1126.)
12
chest when they squared off in the street; and (3) soon after that, Wright died
from a stab wound that lacerated his right heart ventricle. To conclude the
object in the assailant’s hand was anything other than a knife or some other
sharp object would be to defy common sense and simple logic. Therefore, even
if we assumed the court erred in allowing Moroyoqui to opine that the object
appeared to be a knife, the error was surely harmless.
II.
JURY INSTRUCTIONS ON EYEWITNESS IDENTIFICATION
Herrera contends the trial court’s instructions on eyewitness
identification violated his constitutional right to due process and a fair trial
by lowering the prosecution’s burden of proof. Again, we disagree.
A. The Given Instructions
Pursuant to CALCRIM No. 315, the trial court provided the jury
a list of standard factors to consider in determining the reliability of
identification evidence, such as whether the witness had contact with the
defendant before the identification, and whether the witness and the
defendant are different races. Herrerra does not challenge this aspect of the
instruction.
But he does challenge the inclusion of some of the bracketed
language that appears in CALCRIM No. 315. Utilizing this optional
language, the trial court told the jury that, in assessing the reliability of
identification testimony, it may also consider how certain the witness was in
making the identification. In addition, the court instructed the jury, “A
witness’ expression of certainty about an identification, whether the
identification was made before or at the trial, may not be a reliable indicator
of accuracy.” The court also instructed the jury on factors to consider in
evaluating the significance of the witness’s certainty in the identification,
13
including whether the witness received information before making their
identification or the police utilized procedures that may have increased the
witness’s level of confidence.
The trial court concluded its instructions on identification by
telling the jury, “The People have the burden of proving beyond a reasonable
doubt that it was the [d]efendant who committed the crime. If the People
have not met this burden, you must find the [d]efendant not guilty.”
B. Analysis
Herrera argues the trial court erred by including the bracketed
language in CALCRIM No. 315 regarding a witness’s expression of certainty
about his or her identification. Herrera claims that language was inapt and
prejudicial because none of the prosecution’s witnesses were certain when
they identified him in the surveillance videos before or during trial. The claim
is unavailing.3
At trial, Detectives Gomez and Shynn testified they identified
Herrera from the surveillance videos because he looked and walked like the
person who stabbed Wright. Although the detectives did not say they were
certain Herrera was the stabber, they testified Herrera resembled the
stabber in many ways and they recognized Herrera based on their previous
contacts with him. They did not express any doubt about whether Herrera
and the stabber were one and the same.
3
The Attorney General argues Herrera forfeited this claim by
failing to raise it the trial court. However, because Herrera contends the
instruction violated his constitutional rights, we consider the claim on its
merits. (Pen. Code, § 1259; People v. Stitely (2005) 35 Cal.4th 514, 556, fn.
20.)
14
Similarly, despite telling the jury she was only 20 percent sure
the assailant in the surveillance videos was her son, Alma admitted—both
before and during trial—the assailant looked like her son, based on the
assailant’s walk and what he was wearing.
Under these circumstances, we fail to see how the bracketed
language in CALCRIM No. 315 about the certainty of a witness’s
identification could have prejudiced Herrera. Even if the jury did not believe
the prosecution witnesses were certain about their identifications of Herrera,
the bracketed language was still relevant to the extent it informed the jury
not to read too much into any identification that implicated Herrera. In that
regard, the language was beneficial to the defense. (See People v. Lemcke
(2021) 11 Cal.5th 644, 647, 666 [supporting the use of instructions that
disabuse jurors of the common misconception that certainty and accuracy
correlate in witness identifications].)
Herrera argues that including the bracketed language in
CALCRIM No. 315 was prejudicial because it allowed the jury to “discount
the uncertainty of the identifications [made] by Alma, Gomez and Shynn.” In
other words, Herrera would have us believe the bracketed language somehow
made the prosecution witnesses’ identifications look stronger than they
actually were. We disagree. As explained above, the bracketed language is
geared toward the idea that identifications expressed with certainty should
be taken with a grain of salt, not that uncertain identifications should be
questioned or dismissed. Accordingly, inclusion of the bracketed language in
CALCRIM No. 315 is not cause for reversal.4
4 Having rejected all of Herrera’s individual claims of trial court
error, we reject his claim of cumulative error because there is no error to
accumulate. (People v. Johnson (2015) 60 Cal.4th 966, 996.)
15
III.
SUFFICIENCY OF THE EVIDENCE REGARDING PREMEDITATION
AND DELIBERATION
Herrera contends there is insufficient evidence to support the
jury’s finding he murdered Wright with premeditation and deliberation. The
record shows otherwise.
A. Standard of Review and Applicable Legal Principles
The standard of review for assessing the sufficiency of the
evidence to support a criminal conviction is “highly deferential.” (People v.
Lochtefeld (2000) 77 Cal.App.4th 533, 538.) Our task is to “review the entire
record in the light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is reasonable, credible,
and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Lindberg (2008) 45
Cal.4th 1, 27.)
In so doing, we do not reweigh the evidence or reevaluate the
credibility of the trial witnesses; rather, “[w]e presume in support of the
judgment the existence of every fact the trier of fact reasonably could infer
from the evidence. [Citation.] If the circumstances reasonably justify the trier
of fact’s findings, reversal of the judgment is not warranted simply because
the circumstances might also reasonably be reconciled with a contrary
finding.” (People v. Lindberg, supra, 45 Cal.4th at p. 27.) “The conviction shall
stand ‘unless it appears “that upon no hypothesis whatever is there sufficient
substantial evidence to support [it].”’” (People v. Cravens (2012) 53 Cal.4th
500, 508.)
The three categories of evidence traditionally deemed relevant to
the issues of premeditation and deliberation are: (1) planning activity; (2)
16
facts concerning the defendant’s prior conduct with the victim, i.e., motive
evidence; and (3) the method of the killing. (People v. Thomas (1992) 2
Cal.4th 489, 516–517, citing People v. Anderson (1968) 70 Cal.2d 15.) These
categories are descriptive, not exhaustive, and are intended “to aid reviewing
courts in assessing whether the evidence is supportive of an inference that
the killing was the result of preexisting reflection and weighing of
considerations rather than mere unconsidered or rash impulse.” (People v.
Perez (1992) 2 Cal.4th 1117, 1125.)
In making that assessment, we must remember “premeditation
can occur in a brief 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.’”
(People v. Perez, supra, 2 Cal.4th at p. 1127.) The question of just “how long a
thought must be pondered before it can be said to be deliberated and
premeditated” is a question of fact for the jury to decide. (People v. Bender
(1945) 27 Cal.2d 164, 184; overruled on another ground in People v. Lasko
(2000) 23 Cal.4th 101, 110.)
B. Analysis
In this case, there is no evidence Herrera and Wright had any
contacts or knew each other before the night Wright was killed. So, in terms
of motive, there is no way of knowing why Herrera killed him. However, the
lack of a discernable motive does not preclude a conviction for premeditated
murder. (People v. Whisenhunt (2008) 44 Cal.4th 174, 202.) Based on the
surveillance videos, the jury could reasonably find Herrera followed Wright
for about half a mile on foot after Wright left the 7-Eleven store. During that
time, Herrera had ample opportunity to devise a plan to kill Wright and to
weigh the considerations involved in doing so.
17
Yet, after catching up to Wright on Baker Street, Herrera made
no immediate attempt to attack Wright. Instead, Herrera continued walking
for about another 20 feet, waited for a car to pass, and then calmly circled
back to where Wright was standing, all while holding the knife by his side.
This gave Herrera even more time to think about what he was doing.
Based on what happened next, it would be reasonable to infer
Herrera was thinking about killing Wright because as soon as he got within
striking distance of Wright, he raised his right hand and plunged the knife
into Wright’s chest, a highly vulnerable area of the body. Herrera’s actions
evince cool calculation and a singleness of purpose. There is nothing to
suggest he was provoked or threatened by Wright before killing him.
In light of all these circumstances, we conclude there is
substantial evidence to support the jury’s finding Herrera acted with
premeditation and deliberation. We therefore reject his challenge to the
sufficiency of the evidence.
IV.
PITCHESS AND BRADY ISSUES
Before trial, defense counsel filed a motion pursuant to Pitchess,
supra, 11 Cal.3d 531 and Brady, supra, 373 U.S. 83 to obtain information
about three police officers who were involved in the investigation that led to
Herrera’s arrest. The motion requested the trial court conduct an in camera
review of the officers’ personnel files for information bearing on their
character and credibility.
After conducting two in camera review hearings, the trial court
ordered the disclosure of certain information in one of the officer’s files, but it
found nothing discoverable in the other officers’ files. Herrera requests that
we: (1) independently review the record of the in camera proceedings to
18
determine whether the trial court followed the correct procedures in
adjudicating his motion, and (2) independently review the officers’ personnel
files to determine whether the court should have ordered the disclosure of
any additional information. The Attorney General does not oppose this
request, and we agree it is the most effective way to assess the propriety of
the court’s ruling.
Having conducted the requested review, we are satisfied the trial
court complied with the necessary procedures and did not abuse its discretion
in finding there was no additional information to disclose. There is no basis to
disturb the court’s ruling on Herrera’s discovery request.
DISPOSITION
The judgment is affirmed.
GOODING, J.
WE CONCUR:
MOTOIKE, P. J.
SANCHEZ, J.
19