Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Ruffo Espinosa, Jr., Judge, Los Angeles County Super. Ct. No. BA275712
Maria Morrison, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie C. Brenan and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Defendant and appellant George Edward Hicks appeals from the judgment entered following a jury trial that resulted in his conviction of first degree murder of Raymond Mitchell. He contends: (1) there was insufficient evidence to support either the murder by torture or premeditation theories of first degree murder to survive defendant’s Penal Code section 1118.1 motion at the close of the prosecution’s case-in-chief or at all; (2) there was insufficient evidence to warrant an instruction on torture; and (3) it was error to not instruct on provocation vis a vis murder by torture. We affirm.
Defendant was charged by information with first degree murder; enhancements for personal use of a deadly weapon and prior prison terms were also alleged. His first trial ended in a mistrial after the jury was unable to reach a verdict on September 29, 2005. An amended information was filed on December 12, 2005, which included the prior prison term enhancement, but not the deadly weapon enhancement. His second jury trial, the subject of this appeal, began that day.
All undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Killing
Viewed in accordance with the usual rules on appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053), the evidence established that at about 8:00 a.m. on December 4, 2004, Mitchell was standing on Edgehill near Jefferson Blvd., talking to Tyrone Smith, Jacqueline Astengo and Angela Worthy, who was seated in her car. Defendant came out of an alley, walked up behind Mitchell and threw a gasoline-smelling liquid on him, which defendant ignited with a lighter before running away. Mitchell died of pneumonia two days later; the pneumonia was the result of burn injuries Mitchell sustained to his respiratory tract.
When Officer Todd Hinrichsen of the Los Angeles Police Department and his partner arrived at the scene, Mitchell was being treated by the paramedics. After Mitchell was transported to the hospital, Hinrichsen’s partner interviewed Worthy, Smith and Astengo while Hinrichsen looked for physical evidence. The witnesses did not appear to be under the influence and all of them were cooperative. Astengo identified Mitchell’s assailant as “George.” At the base of the alley that opened onto Edgehill, Mitchell found a caped Gatorade bottle that contained about one inch of fluid which smelled like gasoline.
B. The Post-Arrest Interview
On December 12, 2004, defendant was in custody on drug-related charges when he was interviewed by Detectives White and Evans. When Evans informed defendant that the officers were there to interview defendant not about the drugs, but about “Raymond,” defendant denied knowing Raymond. Evans showed defendant a photograph of Mitchell and asked whether defendant knew that person or had ever seen him before; defendant responded in the negative. Defendant maintained that he was downtown, not in the area of Jefferson and Crenshaw on Saturday, December 4th. After defendant denied knowing anything about the man in the photograph catching on fire, this colloquy occurred: “DETECTIVE EVANS: Okay. George, well, let me kind of help you refresh your memory. You and Raymond got into some argument over something. I don’t know if it was because y’all were trying to hook some woman to – to buy some dope or whatever. But for whatever reason there was a falling out. [¶] And, now, maybe – just maybe, ‘cause only you can tell the story, because I don’t know, because I wasn’t there. Now, maybe Raymond jacked you, and maybe you had every reason to defend yourself. Is that what happened? Did you defend yourself? [¶] [DEFENDANT]: I got jumped on by two people, man. [¶] DETECTIVE EVANS: Okay. Now, one of the two people that jumped on you, was one of them Raymond? [¶] [DEFENDANT]: Yes. [¶] DETECTIVE EVANS: Okay. That was the guy whose picture I showed you? [¶] [DEFENDANT]: Yeah. [¶] DETECTIVE EVANS: Why did Raymond jump on you? [¶] [DEFENDANT]: He claimed that I was interfering with his business. [¶] DETECTIVE EVANS: He claimed that your were interfering with his business? [¶] [DEFENDANT]: His business. [¶] DETECTIVE EVANS: Okay. Now, did that occur on the 4th? [¶] [DEFENDANT]: I need an attorney for this.” While Evans was explaining that he could no longer talk to defendant if defendant was invoking his right to an attorney, defendant interrupted Evans to state that he suffered from posttraumatic stress syndrome; defendant said he had been beaten, robbed and taken advantage of and was “tired of people taking things from me, and hurting me, man. I’m tired of people hurting me, man. [¶] DETECTIVE EVANS: Is that what Raymond did? Did Raymond take something -- [¶] [DEFENDANT]: Raymond hurt me man, and take stuff from me, man. I’m tired of that.” After confirming that defendant wanted an attorney, Detective Evans tried to end the interview but defendant interrupted again to state: “This gentleman jumped on me. This gentleman jumped on me, sir. This gentleman – see, but nobody telling their story – [¶] DETECTIVE EVANS: Okay. I was giving you -- [¶] [DEFENDANT]: Nobody telling the truth about -- [¶] DETECTIVE EVANS: -- an opportunity to tell the story, but I can no longer talked to you now . . . .”
C. The Trial
1. The Prosecution
Worthy testified that she observed defendant come out of the alley, walk up behind Mitchell and say, “You won’t be saying that shit no more.” She next saw defendant throw a gasoline-smelling liquid on Mitchell, then run away. Mitchell’s upper body burst into flames, which Smith and Mitchell tried to put out.
Astengo testified that she heard defendant say, “You won’t do it again.” A “sizzle” sound caused Astengo to turn to her left and she saw defendant approaching Mitchell. At a distance of about eight feet from Mitchell, defendant used a lighter to light something in his hand and then a “wave of fire” came over Astengo and Mitchell; the arm of Astengo’s jacket caught fire and Mitchell was engulfed in flames.
Smith testified that defendant used a lighter to ignite a liquid he threw on Mitchell. In a telephone call to 911, Smith reported that “George” who was “at the Arco all the time pumping gas” had set Mitchell on fire.
There is an Arco station located about five or six blocks west of Edgehill.
2. The Defense
Defendant testified that he was not in the area of Jefferson and Edgehill at 8:00 a.m. on December 4, 2004, and he did not throw gasoline on Mitchell and light him on fire. He could not think of any reason why Worthy, Smith and Astengo would say that he had done so. A former rock cocaine addict, defendant was the owner/operator of “Body George Mobile Auto Detailing” and he sometimes pumped gas for people and passed out fliers and cards at the Arco station in the Jefferson Park area of Los Angeles. He first encountered Mitchell at that Arco station the previous summer when Mitchell allowed defendant to pump his gas and to tape up a registration sticker in the back window of Mitchell’s car; Mitchell gave defendant a generous tip on this occasion. Defendant subsequently pumped gas for Mitchell several more times. Defendant maintained that he had never had a disagreement with Mitchell. Defendant could not recall telling anyone that he had a dispute with Mitchell. Regarding his post arrest interview with Detective Evans, defendant maintained that he was not talking about Mitchell during the interview, but about someone else who had assaulted him while he was in jail. The tape of the interview was played for the jury.
Defendant testified that he arrived at Victoria and Exposition, which is about five blocks west of Edgehill and three blocks south of Jefferson, at about 9:15 a.m.
Defendant had known Smith for about five years; defendant met Smith while defendant was living at a rehabilitation and training center run by the Salvation Army; Smith was not a resident at the facility, but he sometimes had dinner there with his girlfriend; defendant had purchased crack cocaine from Smith. Defendant had known Worthy for about three years; defendant had paid Worthy for sex and had purchased rock cocaine from her; Worthy had once taken money from defendant. Defendant was also familiar with Astengo, whom he often saw walking up and down Jefferson and had also seen smoking rock cocaine in a certain “dope spot.” Smith, Worthy and Astengo characterized defendant as a “friend,” but defendant characterized them as people he knew from the street.
3. The Verdict and Sentencing
The jury found defendant guilty of first degree murder. Defendant moved for a new trial on the grounds of ineffective assistance of counsel, and filed a petition for writ of habeas corpus on the grounds that he was not competent to stand trial. After both were denied, defendant was sentenced to 25 years to life in prison. He filed a timely notice of appeal.
DISCUSSION
A. Standard of Review
“ ‘The standard applied by a trial court in ruling upon a motion for judgment of acquittal pursuant to section 1118.1 is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction . . . .’ [Citation.]” (People v. Stevens (2007) 41 Cal.4th 182, 211 (Stevens).) The standard of review for sufficiency of the evidence is well known: we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence which is reasonable, credible, and of solid value (i.e. substantial) from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Cole (2004) 33 Cal.4th 1158, 1212.) We do not reweigh the evidence or determine credibility. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Conflicts in the evidence justify reversal only if it is physically impossible that the evidence believed by the trier of fact is true, or the falsity of that evidence is apparent without resorting to inferences or deductions. (People v. Meals (1975) 48 Cal.App.3d 215, 221-222; see also People v. Green (1985) 166 Cal.App.3d 514, 517.) The same standard applies when the conviction rests primarily on circumstantial evidence. “ ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]” ’ [Citation.]” (People v. Kraft, supra, 23 Cal.4th at pp. 1053-1054.)
“ ‘The purpose of a motion under section 1118.1 is to weed out as soon as possible those few instances in which the prosecution fails to make even a prima facie case.’ [Citations.] The question ‘is simply whether the prosecution has presented sufficient evidence to present the matter to the jury for its determination.’ [Citation.] The sufficiency of the evidence is tested at the point the motion is made. [Citations.] The question is one of law, subject to independent review. [Citation.]” (Stevens, supra, 41 Cal.4th at p. 211.)
B. Substantial Evidence Supported A Conviction of First Degree Murder Under the Murder By Torture Theory
Defendant contends there was insufficient evidence to support a conviction of first degree murder under the murder by torture theory at the close of the prosecution’s case-in-chief, when defendant made his section 1118.1 motion, or at all. He argues that “the simple action of throwing the substance at the victim’s back from a distance of [between 9 and 30 feet away] and igniting it . . . does not give rise to a reasonable inference that” defendant harbored the requisite intent. We disagree.
One form of first degree murder is murder perpetrated by means of torture. (§ 189.) “The elements of torture murder are: (1) acts causing death that involve a high degree of probability of the victim's death; and (2) a willful, deliberate, and premeditated intent to cause extreme pain or suffering for the purpose of revenge, extortion, persuasion, or another sadistic purpose. [Citations.] The defendant need not have an intent to kill the victim [citation], and the victim need not be aware of the pain. [Citations.] An intent to torture ‘ “may be inferred from the circumstances of the crime, the nature of the killing, and the condition of the victim’s body.” ’ [Citation.]” (People v. Cook (2006) 39 Cal.4th 566, 602.) But, our Supreme Court has “ ‘cautioned against giving undue weight to the severity of the victim’s wounds, as horrible wounds may be as consistent with a killing in the heat of passion, in an “explosion of violence,” as with the intent to inflict cruel suffering.’ [Citation.]” (Cole, supra, 33 Cal.4th at p. 1214.)
In Cole, the court found the following evidence sufficient to support a first degree murder conviction on a torture murder theory: the defendant and victim had an abusive relationship, the defendant poured a flammable liquid on the victim and ignited it, as he did so, the defendant stated that he hoped the victim burned in hell, and subsequently stated that he was angry with the victim and wanted to kill her. (See also People v. Chavez (1958) 50 Cal.2d 778, 789 (Chavez) [evidence that defendants poured gasoline on the floor and ignited it to avenge eviction from bar and that victim died of asphyxia and severe burns was sufficient to support murder by torture]; People v. Martinez (1952) 38 Cal.2d 556, 560-561 (Martinez) [evidence defendant doused victim with gasoline and ignited it sufficient to support murder by torture].)
Here, the trier of fact could reasonably conclude from evidence presented in the prosecution’s case-in-chief that defendant’s act of dousing Mitchell’s head and upper body with a flammable liquid and then igniting it involved a high degree of probability of the victim’s death – either directly from burn injuries or indirectly, as was the case here, from burn complications. From this conduct, the trier of fact could also reasonably infer that defendant intended to cause the victim extreme pain or suffering. That defendant did so for the purpose of persuading Mitchell to not behave in a particular way towards defendant again can be inferred from defendant’s statements just before he set Mitchell on fire: “You won’t say that shit no more,” and “You won’t do it again.” This evidence was sufficient to establish a prima facie case of murder by torture. (Stevens, supra, 41 Cal.4th at p. 211.)
The prosecution’s case was thereafter bolstered by evidence of defendant’s statements during his post-arrest interview, introduced after defendant’s section 1118.1 motion was denied, from which it can reasonably be inferred that defendant intended to exact revenge from Mitchell for “jumping.” Thus, substantial evidence supported the murder by torture theory.
C. Substantial Evidence Supported A Conviction Based On the Willful, Deliberate And Premeditated Theory of First Degree Murder
Also unpersuasive is defendant’s contention that there was insufficient evidence of premeditation to support a verdict of first degree murder under that theory at the time he made his section 1118.1 motion, or at all. He argues that the act of spraying the victim with a flammable liquid and igniting it is not the type of potentially lethal act from which an intent to kill can be inferred.
In addition to torture murder, a “willful, deliberate, and premeditated killing” is also murder of the first degree. (§ 189.) As used in section 189, the terms “willful,” “deliberate,” and “premeditated” are cumulative and express the same idea. (People v. Ottey (1936) 5 Cal.2d 714, 721, overruled on another point in People v. Cook (1983) 33 Cal.3d 400, 412, fn. 13; People v. Pool (1865) 27 Cal. 572.) To prove first degree murder under this theory, it is not “necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act.” (§ 189.)
The three types of evidence generally relied upon to support a finding of premeditation and deliberation are (1) planning; (2) motive; and (3) a manner of killing from which it can be inferred that the defendant must have intentionally killed “according to a preconceived design to take his victim’s life in a particular way for a reason which the jury can reasonably infer from facts of type (1) or (2).” (People v. Martinez (2003) 113 Cal.App.4th 400, 412, internal quotations and citations omitted.) Evidence of motive together with evidence of planning or manner of killing will support an “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.” (Ibid.)
A manner of killing or attempted killing indicating that the defendant acted according to a preconceived design can be inferred from the absence of any provocation by the victim. (People v. Miller (1990) 50 Cal.3d 954, 993; compare, e.g. People v. Velasquez (1980) 26 Cal.3d 425, 435 [sudden killing in the course of an argument and struggle does not constitute premeditated murder], vacated and remanded on other grounds in California v. Velasquez (1980) 26 Cal.3d 425, 435 with People v. Boyd (1985) 38 Cal.3d at 762, 769-770 [only evidence of argument or struggle consisted of the victim pushing the weapon away].) Planning can be inferred from evidence that the defendant brought a weapon with him and used it upon the victim. (See e.g. People v. Miller, supra, 50 Cal.3d at p. 993 [defendant brought pipe and used it to kill unarmed victim; lack of provocation suggests planning rather than rash explosion of violence].)
In Martinez, supra, 38 Cal.2d at page 560, the evidence that the court found sufficient to support a first degree murder conviction on a willful, deliberate and premeditated theory included evidence that the defendant filled an empty can with gasoline, poured it on his wife, ignited it, and failed to aid in the rescue attempts that followed. (Id. at p. 561.)
Here, a manner of killing indicating that the defendant acted according to a preconceived design can be inferred from the absence of any evidence of provocation by Mitchell. Evidence that defendant brought with him to the scene both a flammable liquid and the means to ignite it, suggest planning. This was sufficient to establish a prima facie case of premeditated murder. (Stevens, supra, 41 Cal.4th at p. 211.)
As with the murder by torture theory, the premeditation theory was bolstered by evidence of defendant’s statements to police in the post-arrest interview which suggest that he was motivated by revenge for Mitchell having previously “jumped” defendant.
D. The Trial Court Correctly Instructed On the Torture Theory of First Degree Murder
Defendant contends it was error to give CALJIC No. 8.24, which describes the elements of first degree murder perpetrated by torture, because there was no evidence to support this theory. Inasmuch as we have concluded that there was substantial evidence to support this theory of first degree murder, defendant’s contention necessarily fails.
E. There Was No Error in Failing to Instruct On Provocation As It Relates to Murder By Torture
Defendant contends the trial court prejudicially erred in failing to instruct sua sponte that evidence of provocation could be considered in determining whether defendant harbored the requisite intent for murder by torture. He argues that as given, the instruction on provocation “was misleading because it is likely the jury would have inferred from it that it should not consider evidence of provocation in deciding whether appellant deliberately and premeditatedly inflicted extreme and prolonged pain.” (Italics in original.) We conclude that there is no reasonable likelihood that the jury would have misapplied the challenged instruction.
Anticipating the People’s argument that he forfeited this claim by failing to request amplifying instructions in the trial court, defendant argues that his trial attorney was ineffective for failing to do so. Because we conclude that there is no reasonable likelihood that the jury misapplied this instruction, defendant has necessarily failed to establish the prejudice prong of a claim of ineffective assistance of counsel. (In re Thomas (2006) 37 Cal.4th 1249, 1256.)
In People v. Chatman (2006) 38 Cal.4th 344, 353, it was undisputed that the defendant stabbed the murder victim 51 times. In pertinent part, the jury was instructed as to both the willful, deliberate and premeditated theory of first degree murder, as well as the torture murder theory. (Id. at p. 389.) Consistent with CALJIC No. 8.73, the trial court instructed that the jury could consider provocation for such bearing as it may have on whether the defendant killed with or without deliberation and premeditation. (Id. at p. 393.) On appeal, the defendant challenged the trial court’s failure to sua sponte instruct that evidence of provocation could be considered in determining whether the defendant had the requisite specific intent to willfully, deliberately and with premeditation, inflict extreme and prolonged pain. (Ibid.) Our Supreme Court found that the defendant could not complain the instruction given was incomplete because he did not ask for clarification or amplification in the trial court. (Ibid.) Moreover, it found no reasonable likelihood that “the jury would parse this instruction so finely as to find a negative inference that it could not consider provocation regarding defendant’s mental state in inflicting torture. Logically, whatever relevance any provocation had on the mental state with which defendant killed would apply to his mental state regarding infliction of torture. Accordingly, ‘[t]here is no reasonable likelihood that the jury would have understood these instructions to foreclose them from considering evidence of provocation, if any, in connection with murder by torture.’ [Citation.]” (Ibid.)
Here, in addition to first degree murder, the jury was instructed on second degree murder and voluntary manslaughter as lesser included offenses. The trial court instructed that an essential element of first degree murder by torture is that the perpetrator “committed the murder with a willful, deliberate and premeditated intent to inflict extreme and prolonged pain upon a living human being for the purpose of revenge, extortion, persuasion or for any sadistic purpose[.]” (CALJIC No. 8.24.) They were further instructed: “In the crime of murder in the first degree that is perpetrated by torture, there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator. Unless this specific intent exists the crime to which it relates is not committed. The crime of murder in the first degree that is perpetrated by torture requires the specific intent to willfully, deliberately and with premeditation, inflict extreme and prolonged pain upon a living human being for the purpose of revenge, extortion, persuasion or for any sadistic purpose.” (CALJIC No. 3.31.) Pursuant to CALJIC No. 8.73, the jury was instructed: “If the evidence establishes that there was provocation which played a part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to manslaughter, you should consider the provocation for the bearing it may have on whether the defendant killed with or without deliberation and premeditation.”
As to voluntary manslaughter, jurors were instructed only on the unreasonable self-defense theory of that crime, not as to the heat of passion/provocation theory. (CALJIC No. 8.50.)
Here, as in Chatman, there was no reasonable likelihood that the jury would parse this instruction so finely as to find it applicable to provocation vis a vis the willful, deliberate and premeditated intent to kill, but not applicable to the willful, deliberate or premeditated intent to inflict extreme and prolonged pain.
DISPOSITION
The judgment is affirmed.
WE CONCUR: COOPER, P. J., FLIER, J.