P. v. Cardoso

 

 

 

 

 

 

 

 

 

Filed 7/18/13  P. v. Cardoso 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

 

 

 
>

THE PEOPLE,               Plaintiff and Respondent,   v.   JOEL LEAL CARDOSO,               Defendant and Appellant.

E055392               (Super.Ct.No. INF067325)               O P I N I O N

 

            APPEAL from the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County.  Edward D.
Webster, Judge.  (Retired judge of the
Riverside Super. Ct. assigned by
the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.)  Affirmed.

            Siri Shetty, under appointment by
the Court of Appeal, for Defendant and Appellant.

            Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, and A. Natasha Cortina and Kelley Johnson, Deputy Attorneys
General, for Plaintiff and Respondent.

I.  INTRODUCTION

            Defendant and appellant Joel Leal
Cardoso was convicted by a jury of attempted
murder, assault with a deadly weapon, unlawful possession of an assault weapon,
and possession of methamphetamine for sale. 
The jury also found true allegations that the attempted murder was
premeditated and deliberate and defendant personally used and discharged a
firearm.  The trial court imposed an
aggregate term of life in prison plus 20 years.

            Following the People’s case-in-chief,
defendant moved to dismiss the attempted premeditated murder allegation
pursuant to Penal Code section 1118.1.href="#_ftn1" name="_ftnref1" title="">^[1]  Defendant argued there was href="http://www.mcmillanlaw.com/">insufficient evidence to show that he
acted with premeditation and deliberation. 
Finding sufficient evidence, the trial court denied the motion. 

            The evidence showed Robert Smith,
among others, would exchange money for drugs with defendant at defendant’s
workplace.  On the evening of November 17, 2009, a drug deal got
out of hand and defendant made serious threats toward Smith.  Later, a high-speed car chase ensued between
defendant and Smith.  When defendant’s
vehicle caught up to the car Smith was a passenger in, defendant fired two or
three shots into Smith’s car, missing Smith by only a few inches.

            On appeal, defendant claims the
trial court erred by refusing to grant a judgment of acquittal under section
1118.1 and this court should reverse the judgment.  He argues the prosecution’s evidence does not
reasonably suggest that defendant calculated and planned a design to kill
Smith.  We conclude the prosecution’s
evidence is sufficient to support a finding of attempted premeditated
murder.  We affirm.

II.  SUMMARY OF
FACTS

            In that the defendant is challenging
the trial court’s denial of his section 1118.1 motion, we summarize the facts
to the extent they were presented in the prosecution’s case.

            Defendant started working at the
Canton Bistro restaurant six to seven years prior to November 17, 2009, the night of the shooting.  Ashley McCallum worked next door and got to
know defendant over that period of time. 
Robert Smith, his fiancée Jayme Wiersma, and Eric Wheeler lived with
McCallum.  McCallum introduced them to
defendant; they regularly bought cocaine and heroin from defendant at his
workplace.

            Around 4:00
p.m. on the date of the shooting, Smith, Wiersma, and Wheeler were
on their way to pick McCallum up from work. 
Prior to getting there, McCallum contacted defendant for the purpose of
buying some cocaine.  Smith, Wiersma, and
Wheeler met defendant in a parking lot outside McCallum’s and defendant’s
places of work.  According to Smith,
defendant “gave” Smith cocaine on credit; Smith was to pay defendant $40 later
that night.

            After the drug transaction, Smith and
Wiersma saw McCallum coming out of her place of work.  They observed her go to defendant’s parked
car, open the door, and search around inside. 
Smith did not know what, if anything, was taken from the car.  McCallum, Smith, Wiersma, and Wheeler then
drove to McCallum’s trailer.  Once there,
McCallum pulled a handgun from her purse; she said she got the gun from
defendant’s car.

            At this point, Smith believed
defendant would suspect him of stealing the gun and would come looking for
him.  Smith also believed that Wiersma
feared defendant would associate her with stealing the gun, and defendant would
come after her as well.

Around 10:00 p.m. that
evening, Wiersma and Smith drove to a convenience store so they could use the
microwave to heat up some frozen burritos. 
Wiersma was driving her Ford Explorer and Smith was in the front
passenger seat.  As they were pulling
into the store’s parking lot, they noticed McCallum walking out of the store
and around to the back.  They decided to
pick her up to take her home so they drove around to the back of the
store.  As they approached the rear of
the store, they noticed McCallum get into a Ford Taurus.  They did not recognize the driver of the
Taurus, so they made a U-turn and went back to the front of the store and parked.  Once parked, the same Taurus pulled up next
to the passenger side of the Explorer. 
At this point, the Taurus’s driver’s side backseat tinted window rolled
down and defendant pointed a rifle at Smith. 
Defendant looked straight at Smith and mouthed something that Smith was
unable to interpret.  Smith told Wiersma,
“you know, we gotta get out of here.” 
Smith was afraid for his and Wiersma’s lives.

            Smith testified he again told
Wiersma to put the car in reverse and to “get out of here.”  After exiting the parking lot, they headed
north at a high rate of speed.  Smith saw
the Taurus following them.  After driving
some distance, Wiersma stepped on the brakes and made a U-turn; the Taurus
passed them, but made a U-turn to follow them.

Wiersma once again reached high speeds to try and elude the
Taurus.  The Taurus caught up to the
Explorer until it was almost neck and neck with the driver’s side.  At that moment, Smith heard two shots and was
startled; Wiersma applied the brakes and the Taurus kept driving ahead.  Wiersma made a second U-turn to escape the
Taurus.  After they completed the U-turn,
the Taurus made another U-turn to follow them. 
They eventually found a police officer and made it to safety.

            Smith testified he did not get hit
by the bullets, but he was bleeding from shattered glass from the
windshield.  He estimated the bullets hit
as close as five to six inches from his head. 
The bullets traveled from the back rear window, between the headrests,
and out the front windshield.  One bullet
traveled from the rear window and passed through the roof approximately four to
six inches above the passenger side window.

            Smith stated he owed defendant $40
for the cocaine he obtained from defendant earlier that evening.  Smith said he never threatened defendant; in
fact, he was avoiding him because he owed him money for the drugs.  Smith did not have a firearm at any time that
day.

            Wiersma’s testimony concurred with
Smith’s with respect to the chase.  After
seeing defendant holding a weapon in the backseat of the Taurus, she pulled out
of the parking lot and headed north, reaching speeds of 80 to 90 miles per
hour.  She heard three shots fired close
together.  She saw Smith ducking in the
front seat when the shots were fired.

Wiersma noticed the damage to the front windshield and a shattered
passenger side window.  In addition, she
observed that the two backseat windows were shattered.  Wiersma thought defendant shot at them because
they obtained the cocaine from him or because they owed him money.  Wiersma did not see Smith in possession of a
gun at any time that day.

Detective Oscar Santos interviewed defendant after his arrest on November 19, 2009, two days after
the shooting.  At trial, Detective Santos
testified about the interview as follows. 
Defendant stated he believed Smith had broken into his car and stolen a
gun and other items.  During the drug
exchange, Wiersma grabbed the drugs out of defendant’s hand and took off
running back to her truck.  After the
transaction, defendant went back to work; he began receiving threatening phone
calls from Smith demanding drugs and money.

Detective Santos asked
defendant where he was on the night of the shooting.  Defendant stated he received a call from
McCallum, who needed a ride home from work. 
Defendant and his friend, Leo, drove to the convenience store near
McCallum’s work and picked her up.  Leo
was driving the Taurus, McCallum was in the front passenger seat, and defendant
was in the back.  After they drove off,
McCallum changed her mind and told them to go back to the store so her friends
could pick her up to go to a party.  They
went back to the store and parked; McCallum exited the vehicle.  Defendant saw Smith and Wiersma pulling into
the parking lot.

Defendant asked Smith, “Hey, what’s up?”  He then lifted up a rifle and pointed it at
Smith.  Defendant’s intention at the time
was only to scare Smith because he was fed up with being threatened.  Smith and Wiersma left the store after seeing
the rifle.  Defendant drove after them
and caught up to them.  Defendant
admitted to Detective Santos that he shot at the windows of the Explorer and
knew he could hit people.  He aimed at
Smith, but Smith was ducking and lying down. 
He said he wanted to hit Smith because he was tired of the threats.

III.  DISCUSSION

A.> 
Section 1118.1 Motion

The court “on motion of the defendant or on its own motion, at the
close of the evidence on either side and before the case is submitted to the
jury for decision, shall order the entry of a judgment of acquittal of one or
more of the offenses charged in the accusatory pleading if the evidence then
before the court is insufficient to sustain a conviction of such an offense or
offenses on appeal.”  (§ 1118.1.)

            Pursuant to section 1118.1,
defendant moved for a judgment of acquittal at the close of the prosecution’s
case-in-chief.  He argued that there was
no evidence that the attempted murder involved premeditation and
deliberation.  Finding that there was
substantial evidence of premeditation and deliberation, the trial court denied
the motion.  We hold that href="http://www.fearnotlaw.com/">substantial evidence supports the trial
court’s decision.

B.> 
Standard of Review

            “When reviewing a claim the trial
court erred by denying a motion for acquittal under section 1118.1, we apply
the same standard as when evaluating the sufficiency of evidence to support a
conviction, except that we consider only the evidence in the record at that
time the motion was made.”  (>People v. Roldan (2011) 197 Cal.App.4th
920, 924.)  “‘[T]hat is, “whether from
the evidence, including all reasonable inferences to be drawn therefrom, there
is any substantial evidence of the existence of each element of the offense
charged.”’”  (People v. Stevens (2007) 41 Cal.4th 182, 200.)  “The question ‘is simply whether the
prosecution has presented sufficient evidence to present the matter to the jury
for its determination.’”  (>Ibid.)

            “On appeal, we must view the
evidence in the light most favorable to the People and must presume in support
of the judgment the existence of every fact the trier could reasonably deduce
from the evidence.”  (>People v. Smith (2005) 37 Cal.4th 733,
739.)  “In reviewing a sufficiency of
evidence claim, the reviewing court’s role is a limited one.”  (Id.
at p. 738.)  “‘“The proper test for
determining a claim of insufficiency of evidence in a criminal case is whether,
on the entire record, a rational trier of fact could find the defendant guilty
beyond a reasonable doubt. . . .”’”  (Id.
at pp. 738-739.)  “Thus, if the verdict is
supported by substantial evidence, we must accord due deference to the trier of
fact and not substitute our own evaluation of a witness’s credibility for that
of the fact finder.”  (>People v. Ochoa (1993) 6 Cal.4th 1199,
1206.)

            Defendant contends the trial court
erred in denying his section 1118.1 motion for acquittal as to the attempted
premeditated murder charge because there was insufficient evidence to show
premeditation and deliberation.  We
disagree.

C.> 
Degrees of Murder

            Murder, as defined in section 187,
“is the unlawful killing of a human being, or a fetus, with malice
aforethought.”  (§ 187, subd.
(a).)  A killing which is willful,
deliberate and premeditated is murder of the first degree.  (§ 189.)

            “Attempted murder requires the
intent to kill plus a direct but ineffectual act toward its commission.”  (People
v. Ramos (2004) 121 Cal.App.4th 1194, 1207 (Ramos).)  “‘“The wrong-doer
must specifically contemplate taking life; and though his act is such as, were
it successful, would be murder, if in truth he does not mean to kill, he does
not become guilty of an attempt to commit murder.”  [Citation.]’” 
(People v. Bland (2002) 28
Cal.4th 313, 328.)  For an attempted
murder to be premeditated and deliberate “the intent to kill must have been
formed upon a preexisting reflection and must have been the subject of actual
deliberation and forethought.”  (>People v. Rowland (1982) 134 Cal.App.3d
1, 7; see People v. Herrera (1999) 70
Cal.App.4th 1456, 1462-1463, fn. 8 [“We do not distinguish between attempted
murder and completed first degree murder for purposes of determining whether
there is sufficient evidence of premeditation and deliberation”], disapproved
on another point in People v. Mesa
(2012) 54 Cal.4th 191, 199.)

            “‘“[P]remeditated” means “considered
beforehand,” and “deliberate” means “formed or arrived at or determined upon as
a result of careful thought and weighing of considerations for and against the
proposed course of action.”’”  (>People v Felix (2009) 172 Cal.App.4th
1618, 1626 (Felix).)  â€œâ€˜â€œThe true test is not the duration of time
as much as it is the extent of reflection.”’” 
(Ibid.)

            “‘“The process of premeditation and
deliberation does not require any extended period of time.”’”  (People
v. Young (2005) 34 Cal.4th 1149, 1182.) 
There is no requisite minimum length of time between the prior
reflection on killing a person and taking action to commit the killing.  (People
v. Thomas (1945) 25 Cal.2d 880, 900.) 
“‘Thoughts may follow each other with great rapidity and cold,
calculated judgment may be arrived at quickly . . . .’”  (People
v. Perez (1992) 2 Cal.4th 1117, 1127.)

D.> 
Analysis

“In examining whether the evidence is sufficient to show that a
defendant premeditated, a reviewing court may consider a tripartite
framework––(1) planning activity, (2) motive, and (3) manner of the killing or
attempt––in determining whether such intent may be inferred from the trial
record.”  (Felix, supra, 172
Cal.App.4th at p. 1626.)  These
categories are “‘descriptive, not normative,’” and “reflect the court’s attempt
‘to do no more than catalog common factors that had occurred in prior
cases.’”  (People v. Young, supra,
34 Cal.4th at p. 1183.)  “The categories
of evidence . . . do not represent an exhaustive list of evidence
that could sustain a finding of premeditation and deliberation, and the
reviewing court need not accord them any particular weight.”  (Ibid.)  While these categories are helpful for
review, they are not a sine qua non to finding first degree premeditated
murder, nor are they exclusive.  (>People v. Koontz (2002) 27 Cal.4th 1041,
1081.)  “However, ‘[w]hen the record
discloses evidence in all three categories, the verdict generally will be
sustained.’”  (People v. Stitely (2005) 35 Cal.4th 514, 543.)

            In essence, the fundamental inquiry is
whether “the crime occurred as a result of preexisting reflection rather than a
rash or unconsidered impulse.”  (>Felix, supra, 172 Cal.App.4th at p.
1626.)  This is generally inferred from
the circumstances of the crime.  (>Ramos, supra, 121 Cal.App.4th at pp. 1207-1208.)  Here, the circumstances of the present
incident are clearly susceptible to a reasonable inference that defendant’s
conduct was the result of preexisting reflection as opposed to a rash
unconsidered impulse.

            Substantial evidence supports a
conclusion that defendant had a motive for the shooting.  According to Smith, he was supposed to pay
defendant $40 for drugs that evening, and had not done so.  Defendant told Detective Santos that Wiersma
had stolen drugs from him and he suspected Smith had stolen a gun and other
items from his car.  Relative to
planning, while the meeting at the store could be viewed as coincidental, the
evidence suggests it might have been planned: 
defendant had armed himself with a gun and was in the company of McCallum,
an individual whom defendant knew lived with Smith.  Further, even if the planning did not occur
before the encounter at the convenience store, it is evident by the very nature
and duration of the car chase that defendant planned to shoot Smith.  Lastly, the manner of the attack clearly
evidenced premeditation and deliberation. 
Defendant’s vehicle pursued Wiersma’s Explorer.  At the time of the shooting, defendant’s
vehicle was positioned alongside the Explorer and slightly behind it so as to
give defendant a clear shot between the front headrests.  Defendant rolled down the rear window on the
passenger side of the Taurus and shot with his gun protruding out the
window.  As Smith testified, the shots
nearly hit him.  And, as defendant
acknowledged in his statement to Detective Santos, he tried to hit Smith
because he was tired of the threats.

            These facts clearly demonstrate the
necessary preexisting reflection to support a finding of premeditation and
deliberation.

            Felix,
supra, 172 Cal.App.4th 1618 and Ramos,
supra, 121 Cal.App.4th 1194 are instructive.  In Felix,
the defendant had been drinking during the day. 
He threatened his girlfriend with death and hit her on the head with the
butt of a gun, causing her to bleed.  (>Felix, supra, at p. 1622.)  The mother of his girlfriend came to pick her
up and take her to the hospital.  The
defendant believed they were going to the police and threatened to kill her
again; he also threatened to kill the mother’s husband.  (Ibid.)  The defendant called the husband and made
serious threats of death to him and his family. 
Later, the husband heard the defendant’s car pull up to the house.  The defendant pulled out a .38-caliber
handgun.  The husband dropped to the
floor and heard two gunshots and items breaking in the house, then heard the
defendant’s car drive away.  (>Id. at pp. 1622-1623.)  The Court of Appeal held a reasonable jury
could infer premeditation.  The jury
could infer planning, in that the defendant armed himself with a .38-caliber
gun and drove to the husband’s home knowing he was there.  (Id.
at p. 1627.)  Such is the case here;
defendant was in the company of McCallum, whom he knew to be a roommate of
Smith.  Prior to the contact with Smith,
defendant had armed himself with an assault weapon.

            In Ramos, the defendant was at a house party when rival gang members
approached the front yard of the house. 
(Ramos, supra, 121 Cal.App.4th
at p. 1198.)  As the defendant came from
the backyard to the front yard to confront the rival gang members, the gang members
proceeded to drive off down the street. 
(Ibid.)  As they drove off, the defendant, among
others, shot at the fleeing car, hitting it a number of times.  The Court of Appeal held there was sufficient
evidence to support the finding that the attempted murders were willful,
deliberate, and premeditated.  (>Id. at p. 1208.)  The admission of gang affiliation, arming
themselves before attending the party, parking around the corner so as not to
be identified when they left the party, and purposely shooting at an occupied
vehicle were all factors the Ramos
court considered.  (Ibid.)  The court explained
that “these circumstances demonstrated planning and a preconceived willingness
to take immediate lethal action should the need arise.”  (Ibid.)  “Based on these same factors, the jury
. . . could conclude the attempted murder had been willful,
deliberate and premeditated.”  (>Ibid.)

            Here, as
in Ramos, defendant had a
motive.  In Ramos, it was gang affiliation; here, it was defendant suspecting
Smith of stealing items from his car, coupled with the money Smith owed
him.  Each defendant, by arming himself
with a weapon, demonstrated planning and a preconceived willingness to take
lethal action.  And, in each case, the
defendant, in a calculated manner, shot into a moving vehicle as the vehicle
sought to evade the respective defendants.

            We agree
with the trial court that there is ample evidence to support a conclusion that
defendant’s attempted murder of Smith was premeditated and deliberate.

E.> 
Defendant’s Argument

Defendant relies primarily on three cases to support his argument as
to the insufficiency of the evidence to support a finding of premeditation and
deliberation.  He cites each of these
cases to support the argument that his conduct was not premeditated and
deliberate, but rather unconsidered and a rash impulse hastily executed.

The first is People v. Anderson
(1968) 70 Cal.2d 15.  In that case, the
defendant had been living with a woman and her three children for approximately
eight months.  The victim, age 10, was
the youngest of the children.  On the day
of the murder, the defendant was highly intoxicated.  While the autopsy report was not submitted
into evidence, the victim appeared to have been brutalized, including a sexual
attack as well as being stabbed over 60 times with cuts extending over her
entire body.  (Id. at pp. 21-22.)  Relying
on a three-part test that considers evidence of the defendant’s conduct prior
to the killing, his motive to kill, and whether the manner of killing shows a
preconceived design to take life, the Supreme Court reversed the first degree
murder conviction.  (Id. at pp. 25-27, 33.)  It
found no reasonable evidence of planning before the murder or any motive for
the defendant to kill the victim. 
Further, the court found the manner of the killing, as brutal as it was,
was inconsistent with a calculated and planned murder.  (Id.
at p. 33.)

Anderson is
distinguishable.  As previously stated,
in the present matter there was ample evidence of both motive and
planning.  Further, the manner in which
the present shooting occurred shows careful reflection by defendant in the
moments before he pulled the trigger. name=f71968130790>

            Defendant next relies on >People v. Rowland, supra, 134 Cal.App.3d
1.  In Rowland, the defendant brought a woman home from a party.  The defendant later strangled her with an
electrical cord and carried her body to an abandoned dirt road.  (Id.
at pp. 6-7.)  The Court of Appeal held there was no
evidence of motive in that the defendant did not know the victim before the
encounter.  As stated by the court:  “It appears that he took her to his home in
hopes of a sexual interlude, but such evidence fails to provide a motive for
murder.”  (Id. at p. 9.)  The court
rejected the People’s argument that the defendant took thoughtful measures to
procure a weapon for use against the victim, stating:  “An electrical cord . . . is a
normal object to be found in a bedroom and there was no evidence presented that
defendant acquired the cord at any time prior to the actual killing.”  (Id.
at p. 8.)  Rowland is distinguishable because, in the present case, there was
substantial evidence of motive, as well as evidence of defendant arming himself
before his encounter with Smith.

            Lastly, defendant relies on> People v. Munoz (1984) 157 Cal.App.3d
999. name="SDU_27">name="_______#HI;b10">name="SDU_34">name="sp_226_7">name="citeas((Cite_as:_134_Cal.App.3d_1,_*7)">name=f3a1982133594> There, the
defendant and two others were driving around; the defendant was in the
backseat.  The defendant spotted a man
walking along the street.  The defendant
asked the driver to pull over to ask the man for directions.  As the man bent over, the defendant asked for
his wallet; as the man stepped back, the defendant shot him in the chest, “‘For
the hell of it,’” and told the driver to drive off.  (Id.
at pp. 1004-1005.)  The Court of Appeal
held that the requisite solid evidence of premeditated first degree murder was
lacking.  (Id. at p. 1009.)  The brief
amount of time during the encounter and the defendant’s senseless desire to
shoot someone that night did not establish the killing was a result of careful
thought and weighing of considerations. 
(Id. at p. 1010.)  While the conduct in the present matter may
have been equally senseless, it is clear that defendant gave his conduct
thorough consideration prior to shooting out of the back passenger window.

            Again, we note that “‘“[t]he process
of premeditation and deliberation does not require any extended period of
time.”’”  (People v. Young, supra,
34 Cal.4th at p. 1182.)  There is no
requisite minimum length of time between the prior reflection on killing a
person and taking action to commit the killing. 
(People v. Thomas, supra, 25
Cal. 2d at p. 900.)  “‘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.)

In conclusion, there is substantial evidence upon which a rational
trier of fact could find that defendant had the requisite intent, and acted
with premeditation and deliberation, in committing attempted murder as to
Smith.  The trial judge properly denied
defendant’s section 1118.1 motion for
acquittal.

IV.  DISPOSITION

            The judgment is affirmed.

            NOT TO BE PUBLISHED IN OFFICIAL
REPORTS

 

KING                                     

                                                J.

 

 

We concur:

 

McKINSTER                        

                             Acting
P. J.

 

RICHLI                                  

                                             J.