P. v. Machuca

Filed 12/10/08 P. v. Machuca CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

APPEAL from the Superior Court of Riverside County. Albert J. Wojcik, Judge. Affirmed.

Leo Fasen; and Joshua C. Needle for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Pamela Ratner Sobeck and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

A jury found defendant guilty as charged of the first degree murder of 20-year-old Ivan Zea Camacho and found he personally used a knife in the commission of the murder. (Pen. Code,  187, subd. (a), 12022, subd. (b)(1).) Defendant was sentenced to 26 years to life, consisting of 25 years to life for the murder plus one year for the knife enhancement.

Defendant appeals. He first claims his trial counsel rendered ineffective assistance in three essential respects, specifically, (1) in failing to move to suppress his in-custody statements to investigators after he invoked his right to remain silent, (2) in failing to object to gang references during the trial, though the case did not involve any gang crime charges or enhancement allegations, and (3) in failing to object to a plethora of other inadmissible and prejudicial evidence. Second, defendant claims there is insufficient evidence to support the jurys finding that the murder was in the first degree based on a premeditation theory. We find each of these claims without merit and affirm the judgment.

II. THE EVIDENCE PRESENTED AT TRIAL

The evidence described in this section is presented in the light most favorable to the judgment. (People v. Stanley (1995) 10 Cal.4th 764, 792-793.)

A. The Discovery of Ivans Body

At 6:30 a.m. on December 1, 2004, Gerald Martin, a grading contractor, arrived at a work site in a wooded area off Rancho California Road in DeLuz, an unincorporated area west of the City of Temecula. As Martin approached what he believed to be a person lying face down and sleeping next to the passenger door of a pickup truck, he saw that the person had blood all [over his] back and called 911. The body was later identified as that of Ivan Comacho.

Ivan died of multiple stab wounds to his torso. He suffered a total of 31 stab and incision wounds and one puncture wound. Most, if not all, of the wounds were likely inflicted with a two-edged knife, not less than three inches long. Ivan also had blunt force trauma to the top of his head and on his left jawline, and several abrasions on his knees. The forensic pathologist who performed the autopsy was not asked to determine, and did not determine, the time of Ivans death, but Ivan was found wearing a broken wristwatch which had stopped at 3:19 a.m.

B. The Crime Scene

Sergeant Michael Lujan processed the crime scene. He believed the area near the body had been used as an impromptu gun range because there were many expended shell casings on the ground. Until the body had been examined, Sergeant Lujan could not tell whether Ivan had been shot or stabbed. There were scuff marks in the dirt near the body as though two or more people had been fighting there. Still, Sergeant Lujan concluded that Ivan had not been robbed. His pockets contained a wallet, money, his identification, and the keys to the 1991 Ford Ranger pickup truck that was parked next to his body. The truck belonged to Ivan. Its doors were locked and its contents were secured. There were no signs of a struggle inside the truck, and no blood was found inside the truck. It appeared that Ivan was killed where his body was found.

C. Jenny Preisendanzs Testimony

Jenny Preisendanz had been Ivans girlfriend for several months at the time he was killed. She had previously dated defendant, and Ivan and defendant were friends. She last spoke to Ivan by phone around 2:45 a.m. on December 1, when she called him and asked him to pick her up. Although Ivan said he would come, he did not show up and did not answer his phone when Jenny called him several times 15 or 20 minutes later.

According to Jenny, a lot of people were getting rides from Ivan in his truck, and he may have been selling methamphetamine. Jenny and Ivan both used methamphetamine, and Jenny was in custody at the time of trial on drug possession charges. Around the time he was killed, it appeared that Ivan was having problems with someone. He had become quieter and was often not home.

D. Defendants Whereabouts and ActivitiesAroundthe Time of Ivans Death

Several witnesses testified concerning the whereabouts and activities of defendant between November 30, the day before Ivan was killed, and December 8, the day defendant was arrested for Ivans murder. The testimony of each of these witnesses is separately described below.

1. Eric Rodriguezs Testimony

Eric Rodriguez, an inmate at Donovan State Prison at the time of trial, testified that Ivan was his best friend in 2004. After midnight on December 1, Eric and Ivan met up with defendant, Osiel Garcia, and a third man named Lucas, in the parking lot of the Marie Callenders in Temecula. Eric and Ivan used methamphetamine before they arrived, and Ivan drove himself and Eric there in his truck. Around 1:00 a.m., Eric left in Osiels car with Osiel and Lucas, and defendant left with Ivan in Ivans truck. It surprised Eric [a] little bit that Ivan left with defendant. Eric, Osiel, and Lucas left the parking lot and went to a drive-through restaurant called Albertos. Then they went to Lucass apartment in Temecula, and arrived there around 2:00 a.m. Eric knew that Ivan had to pick up a friends mother from work at the Pechanga casino around 2:00 a.m.

Eric did not see or speak with Ivan again, but he saw and spoke with defendant when defendant came to Lucass apartment around 4:00 a.m. on December 1. Defendant appeared tired and had a cut on his right pinky finger that was bleeding. Defendant said he got the cut while fighting with two [B]lack guys at the Pechanga casino. Eric saw the handle portion of a knife defendant had wrapped in a jacket or sweater. Eric asked defendant where Ivan was, and defendant said Ivan had dropped him (defendant) off, but Eric was unsure whether defendant said Ivan had dropped him off at Lucass apartment or the casino. Eric was certain there had never been any problems between defendant and Ivan. Eric had heard that defendant and Ivan were involved in, and that defendant had been arrested for, something like printing money and making fake checks.

2. Yolanda Penas Testimony

Yolanda Pena testified that, around 2:35 a.m. on December 1, defendant and Ivan picked her up from the Pechanga casino in Ivans truck and gave her a ride to her home in Old Town Temecula. The trip took around 10 minutes, and Yolanda arrived home around 2:45 a.m. Yolanda did not notice anything unusual about Ivan or defendant. They were not angry with each other, and they were both talking and very calm.

When sheriffs deputies told Yolanda that Ivan had been killed, she suggested they talk to Osiel, who lived one street over from Yolanda in Old Town. Yolandas son, Angel Pena, was friends with Osiel and Ivan. Osiel and Angel were members of the Old Town Trece street gang and were also friends with defendant.

3. Jennifer Bo Young Lees Testimony

At the time Ivan was killed, Jennifer Bo Young Lee had been dating defendant for no more than two weeks. Jennifer was also living in an apartment in Murrieta with defendants friend, Wesley Porter, and defendant would often stay at the apartment. Jennifer met Wesley before she met defendant. Jennifer was using methamphetamine almost daily, and described defendant as a typical meth user. When he used methamphetamine, he would become maybe a little shaky, paranoid, but nothing out of the ordinary. . . . She did not know defendant to display a temper or be quick to anger.

According to Jennifer, defendant left her and Wesleys apartment around 7:00 p.m. on November 30 and did not return until 4:00 or 5:00 a.m. on December 1. Jennifer was alone with Wesley in the apartment between midnight and 3:00 a.m., and neither of them left the apartment during that time. When defendant returned to the apartment, Jennifer saw that his hand was bandaged and he was wearing completely different clothes from when she last saw him. After defendant took a shower, Jennifer helped him rewrap the bandages on his hand. At that point, she saw that the last two fingers of his hand were sliced . . . down to his wrist. Defendant told Jennifer he had injured his hand while he and his friends were dismembering a car.

Jennifer further testified that, later during the morning of December 1, defendant told her he had killed somebody and not to be afraid. At first, Jennifer did not believe him. But later, defendant told her to purchase a Press-Enterprise newspaper and read the local section. On December 2, Jennifer purchased the paper and read that a slain body had been found. This made Jennifer worried and nervous. Nevertheless, she stayed with defendant pretty much all the time over the next several days. On December 6, she purchased some hair dye for defendant, and he changed his hair color from black to kind of orange.

Around December 5, defendant began driving a green Honda Accord, and on December 8, he and Jennifer drove to Osiels house in the Honda. Defendant had a Samurai sword in the Honda which, according to Jennifer, defendant carried around with him. Shortly after Jennifer and defendant arrived at Osiels house, the police came to the house and arrested defendant. Later that day, Jennifer told Investigator Eileen Casey that defendant told her he had killed someone. Jennifer had never met Ivan but had heard of him, and knew there was some kind of animosity towards [defendant] and Ivan.

4. Wesley Porters Testimony

Wesley Porter testified that, during late 2004, he and defendant both earned a living by selling drugs. Wesley was convicted of possessing methamphetamine for sale in December 2005. According to Wesley, he, defendant, and Jennifer were in his and Jennifers apartment during the daytime on November 30, 2004, and the three of them were smoking a lot of methamphetamine.

Contrary to Jennifers testimony, Wesley recalled that Jennifer and defendant left the apartment together during the evening of November 30. Later that night, and possibly around 3:00 a.m., Wesley received a phone call from Jennifer. Jennifer said something happened, and sounded like something was wrong. Wesley asked Jennifer what was wrong, and she told him, I dont know, just some crazy stuff, crazy stuff, crazy stuff. She said she and defendant would be coming back to the apartment in a little bit.

Shortly after Jennifers call, but before 6:00 a.m., Wesley came out of his bedroom and saw that Jennifer and defendant were both in the apartment. He did not know whether they arrived together. He saw that defendant had bandages on his hand. Defendant and Jennifer appeared real nervous and sketchy, meaning they were showing effects of being high on methamphetamine. Defendant told Wesley he cut his hand while fighting with some [B]lack guys at the casino.

Around one week before December 1, defendant had a nine-millimeter handgun that he needed to fix. Wesley fixed the gun for defendant, but promptly broke it again because he decided he did not want a working handgun with his fingerprints on it in defendants possession. A couple of days later, Wesley gave the broken, inoperable handgun back to defendant. Defendant then asked Wesley for a knife for protection. Wesley said he was really, really into knives and collected them. He gave defendant a knife, which he described as a Kershaw [brand] three[-]and-a-half inch lock blade, or a regular blade with a clip that you can put in your pocket and legally carry. Between December 1 and 4, Wesley asked defendant to return the Kershaw knife, but defendant told him he was not going to get it back.

Like Jennifer, Wesley had never met Ivan and had only heard of him. Wesley did not know of any problems between defendant and Ivan. Wesley told police he had heard Ivan was killed over a female.

E. Defendants Arrest

On December 8, sheriffs deputies conducted a probation search of Osiels house and garage. Inside the garage, they found defendant on a couch under a pile of blankets. Deputy Christopher Gaskins testified that he recognized defendant from the M-M tattoos he had on both his shoulders and his prior booking photos. The M-M tattoos were not gang tattoos, and defendant did not have any gang tattoos. Defendant told the deputies his name was Ramses Marquez. A sawed-off shotgun and an M-14 rifle were found behind some removable drywall in the garage, and defendant had counterfeit bills in his pockets. Defendant was taken into custody.

F. Defendants Interview

Defendant waived his Miranda^[1]rights and agreed to speak with Investigator Casey on December 8. At the time of the interview, Investigator Casey saw that defendant had a cut on his right hand and small cuts on the tops of his knuckles. The interview was videotaped and was played to the jury in its entirety. The interview was one hour eight minutes long.

During the interview, defendant told Investigator Casey he was with his girlfriend Jennifer on November 30 and December 1, and Eric, who was also known as Sancho, was the last person who was with Ivan before Ivan was killed. Defendant denied meeting with Ivan and Eric or with Osiel and Lucas on November 30, and claimed he only spoke with Osiel on the phone that day. When asked how he found out about Ivan, defendant said that, on the night of December 1, Osiel told him that Eric had told Osiel that they had found Ivan. He had [barely] met Eric and did not consider him a friend. He preferred not to hang out with Eric because he was a drama queen guy and would say things behind defendants back. Defendant did not trust Eric.

When Investigator Casey told defendant that everybody was saying he had at one point been sleepin[g] with Jenny, defendant responded that that was one of the reasons . . . [he] got away . . . from that place . . . . [] . . . it was just like a bunch of drama with . . . them you know. Then, when Investigator Casey asked who would have a reason to hurt Ivan, defendant said that the only person he could think of was Sancho or Eric, because one night Ivan almost raped Sanchos girlfriend. Defendant also said someone named Hector may have had a reason to hurt Ivan because Ivan had once slept with Hectors girlfriend and another girl, both of whom were underage.

Investigator Casey then told defendant that Osiel had said defendant was with Osiel and Lucas on November 30, and the three of them met with Ivan and Eric that evening. Defendant denied this occurred, and told Investigator Casey that Wesley would vouch for defendant. Osiel was then brought into the room, and Investigator Casey told Osiel and defendant that one of them was lying. Osiel denied he was lying and insisted that what he told Investigator Casey was true.

After Osiel left the room, defendant changed his story. He said that after he and Ivan dropped Yolanda off at her house, Ivan dropped him off at the Temecula Gardens apartments in Temecula. Defendant intended to see whether his ex-girlfriend Jessica E. was home, but decided it was too late. He was high on methamphetamine. He called Osiel from a pay phone but got his answering machine, then he called Wesley from a guys cell phone, apparently a guy he met on the street after 3:00 a.m. He said Wesley and Jennifer picked him up and took him to their apartment. He slept until the afternoon. Later that night he called Osiel, and Osiel told him about Ivan.

Defendant initially denied stopping by Lucass apartment during the early morning hours of December 1, then he said he was unsure. He may have stopped by the apartment or saw Lucas and Eric outside the apartment. He denied he stabbed Ivan, had any part in stabbing Ivan, or that he and Ivan had ever had any problems. Investigator Casey then asked defendant what the whole check fraud thing was about, and defendant said Ivan and others, came to [him] with the checks and there was no trouble concerning the checks. At this point during the interview, Investigator Casey had Ivan remove his tennis shoes and asked him what the reddish color on the shoes was. Defendant said it was oil or something like that.

When asked how he cut his hand, he said he cut it while helping Wesley remove a seat from a car the weekend before Tuesday, November 30. When asked what kind of car it was, defendant hesitated and struggled to describe the car. The car was in a parking lot of an apartment complex, but he did not know where the complex was. When asked how he got the scrapes and bruises on his knuckles, he said he hit them on something in the car but he did not know what. At this point, Investigator Casey told defendant she knew he was lying; his story did not match what other people were saying; there was DNA and blood evidence at the scene; and Jennifer and Wesley were not going to lie for defendant. Defendant told Investigator Casey to call Jennifer and Wesley, and the interview ended.

G. Analysis of Physical Evidence

On December 8, officers seized the green Honda defendant had been driving. They soon discovered that the car had been stolen. Inside the car, officers found paperwork with defendants name on it, counterfeit money, and what appeared to be fraudulent, forge[d] checks. They also found a beauty supply receipt, a Gerber-brand folding knife, and a pair of tennis shoes with red stains that appeared to be bloodstains.

A second pair of tennis shoes were taken from defendants person on December 8. When defendants blood sample was being taken following his arrest, he asked whether any blood had been found on the shoes, apparently referring to the shoes that had been taken from his person. Neither Ivans DNA nor his blood were found on the shoes taken from defendants person. No blood or DNA was found on the Gerber knife taken from the Honda. However, Ivans DNA was found on the tennis shoes that were taken from the Honda and on a jacket that was in defendants possession.

No blood or DNA evidence linked defendant to the crime scene. Neither the Kershaw knife that Wesley loaned to defendant nor the Samurai sword that, according to Jennifer, defendant had with him when he went to Osiels house on December 8, were apparently ever found. In closing argument, the prosecutor conceded that the People had no murder weapon.

H. Defense Evidence

Defendants younger brother, Juan, testified that defendant is right handed. The defense theory in presenting this evidence was that defendant could not have been the killer, because he could not have killed Ivan with a knife, using his right hand, and also cut himself on his right hand.

Investigator Casey testified that, although she collected video surveillance discs from a 76 gas station near Albertos restaurant, she was unable to view the discs because she did not have the proper equipment. Customers of Albertos have to drive through the gas station parking lot in order to reach the drive-through area of the restaurant. Cameras at Albertos did not show anything concerning customers.

III. DISCUSSION

A. Defendants Ineffective Assistance Claims Are Without Merit

Defendant claims his trial counsel rendered ineffective assistance in three essential respects: (1) in failing to object to the admission of the latter portion of his videotaped interview with Investigator Casey after he invoked his Fifth Amendment right to remain silent; (2) in failing to object to various references to gangs by the prosecutor and witnesses; and (3) in failing to object to the admission of a plethora of other inadmissible and prejudicial evidence. We reject each of these claims.

1. Ineffective Assistance/Standard of Review

To establish an ineffective assistance claim on appeal, a defendant has the burden to show: (1) his counsels performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) counsels deficient performance was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland).) To establish prejudice, [t]he defendant must show that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. [Citations.] A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.] . . . . (People v. Montoya (2007) 149 Cal.App.4th 1139, 1147.)

2. Failure to Object to Interview Statements

We first address defendants claim that his trial counsel was ineffective because he failed to move to suppress or otherwise object to the admission of statements defendant made to Investigator Casey during his December 8 in-custody interview, after defendant invoked his right to remain silent. Defendant concedes that, shortly after the interview began, he waived his Miranda rights and agreed to speak to Investigator Casey. He argues, however, that he invoked his right to remain silent later during the interview and specifically as indicated on page 23 of the 74-page interview transcript. Thus, he argues, the statements he made following his invocation of his right to silence were inadmissible, and his trial counsel was ineffective in failing to move to suppress those statements.

The People maintain that defendant did not clearly and unequivocally invoke his right to silence, and his statements following his alleged invocation of his right to silence indicate he desired to continue with the interview. We agree with the People. As we explain, and contrary to defendants argument, defendant did not clearly and unequivocally invoke his right to silence on page 23 of the interview transcript. Thus, defense counsel was not ineffective in failing to move to suppress the statements defendant made after that point or otherwise object to their admission.

(a) Relevant Facts

The entire December 8 interview was one hour eight minutes in length. During the initial portion of the interview, and before defendant claims he invoked his right to silence, Investigator Casey was asking defendant who would have had a reason to hurt Ivan. Defendant responded that the only person he could think of was Sancho or Eric, because one night Ivan almost raped Sanchos girlfriend. Defendant also said someone named Hector may have had a reason to hurt Ivan because Ivan had once slept with Hectors girlfriend and another girl, both of whom were underage.

At this point during the interview, the following exchange occurred as indicated on page 23 of the interview transcript:

CASEY: These are things that happened.

[DEFENDANT]: . . . thats what I heard. Thats what I heard and, and I believe it because, ah, I believe it because Ivan was talking that like it just I dont know who hes, hum, thats all I want to say right now,I dont wanna talk right now cause . . . .

CASEY: You dont want to talk about Ivan any more or you dont wanna talk about?

[DEFENDANT]: I dont wanna talk about anything cause just, huh.

CASEY: How come?

[DEFENDANT]: Because for what I mean.

CASEY: Okay well well get off of this, what happened to your hand?

[DEFENDANT]: Cut myself. (Italics added.)

Investigator Casey then asked defendant how he cut his hand. Without missing a beat, defendant explained he cut his hand while helping Wesley remove a seat from a car, and the interview continued.

(b) Applicable Law andAnalysis

Defendant argues that he unambiguously invoked his right to remain silent when he told Investigator Casey he did not want to talk about anything. We disagree. In order to invoke the Fifth Amendment privilege after it has been waived, and in order to halt police questioning after it has begun, the suspect must unambiguously assert his right to silence or counsel. [Citation.] It is not enough for a reasonable police officer to understand that the suspect might be invoking his rights. [Citation.] Faced with an ambiguous or equivocal statement, law enforcement officers are not required under Miranda, supra, 384 U.S. 436, either to ask clarifying questions or to cease questioning altogether. [Citation.] (People v. Rundle (2008) 43 Cal.4th 76, 114-115.)

We emphasize that this inquiry is an objective one. (People v. Gonzalez (2005) 34 Cal.4th 1111, 1124, citing and discussing Davis v. U.S. (1994) 512 U.S. 452.) A reviewing court must ask whether a reasonable person in the interrogating officers position would have understood defendant to be unambiguously invoking his right to remain silent, given the circumstances in which the alleged invocation was made. (People v. Gonzalez, supra, at p. 1125; People v. Stitely (2005) 35 Cal.4th 514, 535.) A defendant does not unambiguously invoke his right to silence when, under the circumstances, the interrogating officer could have reasonably understood the defendant to be refusing to discuss only one or more particular subjects. (People v. Rundle, supra, 43 Cal.4th at p. 115.)

Here, defendant did not unambiguously invoke his right to remain silent when he simply said he did not want to talk about anything following the discussion about Erics and Hectors possible motives for killing Ivan. Given the circumstances in which the statement was made, Investigator Casey could have reasonably understand defendant to mean he did not want to talk about the particular subject of whether Eric or Hector had a motive to kill Ivan because Ivan had been involved with one or more of their girlfriends. Thus here, Investigator Casey was not required to cease all questioning of defendant. Defendant also reinforced Investigator Caseys apparent and reasonable understanding of his statement when he promptly and without protest continued to talk to her after she changed the subject to how defendant cut his hand. It follows that defense counsel was not ineffective in failing to challenge the admission of defendants interview statements appearing on and after page 23 of the interview transcript.

3. Failure to Object to Gang References

Defendant next claims his trial counsel was ineffective because he failed to object to various references to drugs and gangs by the prosecutor, when this case did not involve substantive gang charges or gang enhancement allegations. Defendant specifically argues that the prosecutor, although he did not present any direct evidence or argue that defendant was a gang member, painted defendant with the same broad gang-banger brush. In support of this argument, defendant points out that the prosecutor told the jury in his opening statement that the trial was going to take them into what some might refer to as a pit of hell. Moreover, he emphasizes that, in closing argument, the prosecutor said the case involved a world of violence, drugs, and gangs, and suggested that Ivan died because, as defendant puts it, he hung out with drug dealers and was involved with gang members, including defendant.^[2]

Defendant greatly exaggerates the extent of the prosecutors remarks during his opening statement and closing argument, and misrepresents the context in which those remarks were made. For this reason, we disagree that defense counsel was ineffective in failing to object to those remarks. (Strickland, supra, 466 U.S. at p. 688 [counsel renders ineffective assistance if his acts or omissions fall below an objective standard of reasonableness under prevailing professional norms].)

Indeed, the prosecutors opening statement remark that the trial was going to take the jurors into what some might refer to as a pit of hell properly prepared the jury for much of the testimony it was about to hear. Each of the witnesses who observed defendant near the time Ivan was killed, namely, Eric Rodriguez, Jennifer Bo Young Lee, and Wesley Porter, was using methamphetamine at that time. Thus, their credibility could not have been fully assessed without the jury hearing that they were using methamphetamine. Also, the overall content of these witnesses testimony clearly revealed they were involved in drug use and crime, and it would have been impractical to sanitize their testimony to conceal this reality.

And, during closing argument, the prosecutor never argued or suggested that the jury should convict defendant of first degree murder simply because he was involved in a world of gangs, drugs, and violence. Rather, the prosecutor began his closing argument by telling the jury there was a much different world outside the safety of the four walls we are currently surrounded by, and that Ivans life ended . . . as a result of living in that world . . . . This was a proper interpretation of the evidence. Moreover, it was not directed at defendant but, rather, at the evidence as a whole and as a means of making several specific points about the evidence.

For example, in his initial closing remarks, the prosecutor told the jury that bad things happen when persons, meaning Ivan, surround themselves in such a world, and reminded the jury that they should not hold that against Ivan. Although Ivan died as a result of living in such a world, the prosecutor told the jury this did not change your duty or your obligation in this courtroom. The prosecutor also referred to the world of drugs, gangs, and violence, in arguing that his witnesses were nevertheless credible when he said, just because individuals have been convicted of a felony, do drugs, doesnt mean you cant believe what theyre telling you.

On the issue of defendants guilt, the prosecutor focused on the evidence and not on defendants drug use or association with other drug users or gang members, and never once intimated that defendant had a propensity for violence. Indeed, the entire focus of the prosecutors closing and rebuttal arguments was on the evidence of defendants guilt, including, for example, the fact that he borrowed a knife from Wesley which he never returned, his confession to Jennifer that he had killed someone, the cut on his hand that he suffered around the time of the murder, the fact he changed his clothes shortly after the murder and dyed his hair several days later, and the fact he was with Ivan barely more than one-half hour before Ivan was killed. He also urged the jury to disbelieve defendants story that he was helping Wesley remove a seat from a car at the time Ivan was killed.

In sum, the prosecutor at no time urged the jury to convict defendant based on his involvement in or association with a world of drugs, gangs, and violence. Defendants argument to the contrary takes the prosecutors opening statement and closing argument remarks completely out of the context in which they were made.

4. Failure to Object to a Plethora of Other Evidence

Defendant further claims his trial counsel was ineffective in failing to object to a plethora of inadmissible and highly prejudicial character evidence. We reject these claims.

(a) Defendants Association With Gang Members

Yolanda testified that her son Angel and defendant were friends, and that Angel was in juvie or . . . a rehab house for drugs and alcohol. Defendant claims this evidence was highly prejudicial because it associated him with a gang member and drug user, namely, Angel Pena. (Earlier, Yolanda testified that both Angel and Osiel were gang members.) Defendant reads too much into this tangential piece of evidence.

The context in which the testimony arose shows the prosecutor elicited the testimony to explain why Ivan, and not Yolandas son Angel, picked up Yolanda from work at 2:45 a.m. on December 1. Angel was unavailable because, as Yolanda said, he was either in juvenile hall or in a rehab house for drugs and alcohol at the time. Nothing in the question or answer tied defendant to juvenile hall or drug rehabilitation.

Furthermore, defense counsel apparently had a rational tactical purpose for not objecting to Yolandas testimony that her son Angel and Osiel were gang members.^[3] In cross-examining Yolanda, defense counsel established that defendant and Ivan were not angry with each and were getting along well at 2:45 a.m., shortly before Ivan was killed. Thereafter, defense counsel confirmed that Yolanda knew that Osiel was a gang member. This suggested to the jury that Osiel and other gang members, but not defendant, killed Ivan.

(b) The Handgun and Knivesin Defendants Possession

Defendant also complains his trial counsel was ineffective in failing to object to Jennifers and Wesleys testimony concerning the handgun and knives that defendant had or was seeking to obtain near the time Ivan was killed. He complains that the following constituted inadmissible character evidence: Wesleys testimony that, around one week before Ivan was killed, defendant asked Wesley to fix a nine-millimeter handgun for him; that Wesley then gave defendant a Kershaw three[-]and[-]a[-]half inch lock blade knife for his protection; and the Gerber knife found in the green Honda at the time of defendants arrest belonged to Wesley. Similarly, he argues that Jennifers testimony that defendant owned a Samurai sword that he carried around with him, and that she had also seen him with another, smaller type knife or pocket knife, also constituted inadmissible character evidence.

None of this evidence constituted inadmissible character evidence. Rather, all of the evidence was highly probative on the issue of defendants guilt, because it tended to show that, shortly before Ivan was killed, defendant was both seeking to obtain and had in fact obtained the means to commit the premeditated murder of Ivan.

Indeed, the evidence that defendant asked Wesley to fix a nine-millimeter handgun for him around one week before Ivans murder tended to show that defendant was looking for a murder weapon. Then, after Wesley refused to return the handgun to defendant in an operable condition, defendant asked Wesley for a knife for his protection. In response to that request, Wesley gave defendant a Kershaw three[-] and[-]a[-]half inch lock blade knife and never got it back. The Kershaw knife fit the forensic pathologists description of the probable murder weapon. Also, defendant apparently took Wesleys similar-size Gerber-brand knife, which was found in the green Honda defendant was driving shortly after Ivan was killed. Finally, Jennifers testimony that defendant carried around a Samurai sword and that she had also seen him with a smaller pocket knife also tended to show that defendant was keeping himself armed around the time Ivan was killed.

(c) TheOther Alleged Character Evidence Was Harmless

Lastly, defendant complains his trial counsel was ineffective in failing to object, also on character evidence grounds, to a plethora of additional evidence, including: (1) Eric Rodriguezs testimony that defendant had been arrested on something like printing money and making fake checks; (2) the officers testimony that, when defendant was arrested in Osiels garage, he had counterfeit bills in his pockets and was in the vicinity of sheets of paper with bills printed on them; (3) that defendant was found during a probation search of Osiels house and garage; (4) that the officers conducting the search recognized defendant from [h]is tattoos, the M-M on both shoulders that appeared in his prior booking photos; (5) that he was found in the vicinity of a sawed-off shotgun and an M-14 rifle in the garage; (6) Jennifers testimony that he was a daily methamphetamine user; (7) Wesleys testimony that he sold drugs to earn money; and, finally, (8) Investigator Caseys testimony that Jessica [E.] was [defendants] girlfriend, and was a victim of a statutory rape [that defendant] was involved in.

We agree that defense counsel should have sought to exclude at least some of the evidence delineated as items (1) through (8) above, and that no rational tactical purpose appears for defense counsels omission. (People v. Jones, supra, 29 Cal.4th at p. 1254, citing People v. Fosselman, supra, 33 Cal.3d at p. 581 [conviction will be reversed on grounds of ineffective assistance only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission].) For example, the evidence that a sawed-off shotgun was found in defendants vicinity at the time he was arrested in Osiels garage apparently had no probative value on the issue of defendants guilt or any other issues at trial. Nevertheless, we will not parse which items of evidence were objectionable and which were not, because the admission of all of the evidence delineated as items (1) through (8) above was harmless.

As discussed, in order to establish the prejudice component of his ineffectiveness claim, defendant must show that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. [Citations.] A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.] . . . . (People v. Montoya, supra, 149 Cal.App.4th at p. 1147.) Defendant has not met this burden.

Quite apart from the evidence of defendants daily methamphetamine use or his methamphetamine sales, his involvement in making counterfeit money or false checks, his prior bookings for unspecified crimes, or Investigator Caseys suggestion that he was involved in a statutory rape, the evidence of defendants guilt was exceedingly strong. Furthermore, the prosecutor focused exclusively on the indisputably admissible evidence, and not on any of the evidence delineated above as items (1) through (8), in arguing to the jury that they should find defendant guilty as charged.

Indeed, the indisputably admissible evidence showed that defendant was with Ivan at 2:45 a.m. on December 1, the time defendant and Ivan dropped Yolanda off at her home in Old Town Temecula. Ivan was stabbed to death in DeLuz around 3:19 a.m., as indicated by Ivans broken watch. The crime scene was no more than 15 minutes from Yolandas home. Ivans girlfriend, Jenny, spoke to Ivan by phone at 2:45 a.m., and Ivan said he would pick her up. Ivan did not show up, which was unusual for him, and Jenny was unable to reach him by phone when she attempted to call him again several times around and shortly after 3:00 a.m.

Around one week before Ivan was killed, defendant obtained a Kershaw three and one-half-inch blade knife from Wesley. The Kershaw knife fit the forensic pathologists description of the likely murder weapon, and was never found. And, shortly after Ivan was killed, defendant told Jennifer he had killed someone. According to Jennifer, defendant was wearing a completely different outfit of clothing on the morning of December 1, compared to what he was wearing when she last saw him on the evening of November 30. And according to Jennifer, Wesley, and Eric, defendant had a fresh cut on his right hand on the morning of December 1. Investigator Casey also observed the cut on defendants hand, and bruises on his knuckles, when she interviewed him on December 8.

Defendant also gave conflicting accounts of how he cut his hand. He told Investigator Casey he cut his hand while helping Wesley remove a car seat during the early morning hours of December 1. He told Jennifer he cut his hand while dismembering a car. And he told Eric and Wesley he cut his hand during a fight with some Black guys at the casino. Defendant also told Investigator Casey that he was with Jennifer and Wesley at the time Ivan was killed, but Jennifer and Wesley testified that they did not see defendant until after the time Ivan was killed.

In view of the evidence of defendants guilt and the prosecutors exclusive focus on this evidence in closing argument, it is not reasonably probable that the admission of the evidence delineated as items (1) through (8) above affected the outcome, specifically the jurys determination that defendant was guilty of the first degree murder of Ivan, and that defendant personally used a knife in the commission of the murder.^[4]

Finally, defendant argues his trial counsel manifested a cozy relationship with court personnel and prosecution witnesses, and for this reason couldnt be disturbed with objecting to the admission of the excludable evidence. This claim is utterly lacking in substance. Apart from the specific evidence discussed above, which defendant claims his trial counsel was ineffective in failing to object to, defendant does not claim there are any additional items of evidence his trial counsel should have objected to.

B. There is Substantial Evidence to Support the Jurys Finding of First Degree Murder Based on a Premeditation Theory

The jury was instructed that it could find defendant guilty of first degree murder on any of three alternative grounds, namely, (1) torture murder, (2) lying in wait, and (3) that the murder was willful, deliberate, and premeditated. Defendant claims there is insufficient evidence to support the first degree murder finding on a premeditation theory. We disagree. For the reasons we explain, there was substantial evidence that the murder was willful, premeditated, and deliberate.

1. Applicable Law

In reviewing a claim that insufficient evidence supports a verdict, we review the 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, such that a reasonable trier of fact could have found the defendant guilty of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.)

A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] Deliberation refers to careful weighing of considerations in forming a course of action; premeditation means thought over in advance. [Citations.] The process of premeditation and deliberation does not require any extended period of time. The trust 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. Koontz (2002) 27 Cal.4th 1041, 1080.)

In People v.Anderson (1968) 70 Cal.2d 15 (Anderson), the state Supreme Court surveyed a number of cases addressing claims of insufficient evidence to support findings of premeditation and deliberation. (People v. Perez (1992) 2 Cal.4th 1117, 1125.) From the cases surveyed, the court identified three categories or types of evidence pertinent to the determination of premeditation and deliberation: (1) planning activity, (2) motive, and (3) manner of killing. (Ibid.) The court concluded that, in the cases surveyed, the courts had sustained premeditation and deliberation findings 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). (Ibid., quoting Anderson, supra, at p. 27.)

Stated another way, courts have found sufficient evidence of premeditation and deliberation when (1) there is evidence of planning, motive, and a method of killing that tends to establish a preconceived design; (2) extremely strong evidence of planning; or (3) evidence of motive in conjunction with either planning or a method of killing that indicates a preconceived design to kill. (People v. Tafoya (2007) 42 Cal.4th 147, 172.)

These are not the exclusive means of establishing premeditation and deliberation, however. (People v. Tafoya, supra, 42 Cal.4th at p. 172.) The goal of Anderson was not to establish bright-line rules, but to aid reviewing courts in assessing whether the evidence supports 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. (Anderson, supra, 70 Cal.2d at p. 27.)

Thus, an execution-style killing may be committed with such calculation that the manner of killing will support a jury finding of premeditation and deliberation, despite little or no evidence of planning and motive. (People v. Tafoya, supra, 42 Cal.4th at p. 172, quoting People v. Lenart (2004) 32 Cal.4th 1107, 1127.) Indeed, the three categories of evidenceplanning activity, motive, and manner of killingneed not be present in any particular combination to find substantial evidence of premeditation and deliberation. (People v. Stitely, supra, 35 Cal.4th at p. 543.)

2. Analysis

Here, there is substantial evidence to support the first degree murder finding on a premeditation theory. In other words, there is substantial evidence that defendant killed Ivan as a result of a pre-existing reflection and careful thought and weighing of considerations rather than a mere unconsidered or rash impulse hastily executed. (Anderson, supra, 70 Cal.2d at p. 27.)

First, substantial evidence showed that defendant was planning to murder Ivan. Around one week before the murder, defendant asked Wesley to fix a broken nine-millimeter handgun for him. And, when Wesley refused to return the gun to defendant in an operable condition, defendant asked Wesley to loan him a knife for his protection. Wesley gave defendant a Kershaw knife with a three and one-half-inch blade, and the knife fit the forensic pathologists description of the probable murder weapon. Wesley never saw the knife again, and it was never found.

Other circumstances preceding the murder also indicate planning. The murder took place in a remote location in DeLuz, around 3:19 a.m. Ivan was supposed to pick up his girlfriend around 3:00 a.m., and apparently had no plans to go to the DeLuz area with defendant. But the jury could have reasonably inferred that defendant convinced Ivan to drive to DeLuz, where Ivan was to be murdered, after Ivan and defendant dropped off Yolanda at her home in Old Town at 2:45 a.m.

The manner of the killing also indicates that defendant conceived the murder in advance and had sufficient time to weigh the considerations for and against its commission. Ivan was struck on the top of his head with a blunt object, then stabbed in his torso more than 30 times. Each time Ivan was stabbed, defendant had time to reflect on his actions and consider their consequences.

IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ McKinster

Acting P.J.

/s/ Gaut

J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

^[1]Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

^[2] Contrary to the Peoples interpretation of defendants argument, defendant does not claim his trial counsel was ineffective in failing to object when the prosecutor elicited testimony from Yolanda that Osiel and Yolandas son Angel were both members of the Old Town Trece gang and defendant was friends with both of them.

In any event, the record indicates that defense counsel had a rational tactical purpose in failing to object to these questions. (See, e.g., People v. Jones (2003) 29 Cal.4th 1229, 1254, citing People v. Fosselman (1983) 33 Cal.3d 572, 581 [on appeal, conviction will be reversed on grounds of ineffective assistance only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission].) In cross-examining Yolanda, defense counsel elicited testimony that Ivan and defendant were getting along well, were not angry with each other, and did not appear to have any weapons when Ivan picked up Yolanda at 2:45 a.m. on December 1. Counsel then asked Yolanda whether she knew that Osiel was a gang member, and Yolanda responded yes. This suggested to the jury that Osiel or other gang members, and not defendant, killed Ivan.

^[3] See footnote 2, ante.

^[4] As part of his ineffective assistance claim, defendant has requested that we take judicial notice of four documents which he argues support his claim that his trial counsel, Attorney Ken Byrd, rendered ineffective assistance. These are: (1) a March 2, 2004, minute order of the Riverside County Superior Court, indicating that Attorney Byrd was defense counsel in People v. Jose DeJesus Ramirez, case No. RIF112658, at the time of Mr. Ramirezs preliminary hearing; (2) a July 30, 2004, minute order indicating that the charges against Mr. Ramirez were dismissed pursuant to a Penal Code section 995 motion brought by new defense counsel on grounds of inadequate representation of counsel during preliminary hearing; (3) a letter dated August 31, 2007, from the State Bar of California to defendants appellate counsel, Leo Fasen, regarding an unspecified complaint by Attorney Fasen concerning Attorney Byrd; and (4) a letter dated October 4, 2007, from the State Bar to Attorney Fasen, confirming Attorney Byrds resignation from the State Bar.

The request is denied. The letters from the State Bar are not proper subjects of judicial notice. (Evid. Code,  452, 459.) Moreover, neither the letters nor the superior court minute orders from the Ramirez file have any bearing on whether Attorney Byrd rendered ineffective assistance to defendant at his trial. Even if Attorney Byrd was ineffective in representing Ramirez at his preliminary hearing, that does not mean he was ineffective in representing defendant at his trial.