Opinion
C082820
10-18-2017
THE PEOPLE, Plaintiff and Respondent, v. GORDON JAMES, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F02663)
Defendant Gordon James contends there was insufficient evidence to support his conviction for second degree murder.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Trial Evidence
At 6:40 p.m. on April 30, 2015, police found the victim in a hallway of a residential hotel, with multiple wounds to his chest. Two women were unsuccessfully trying to administer first aid and told police the victim had been stabbed a couple of times. Paramedics arrived and pronounced the victim dead at 6:51 p.m. Police later found 0.64 grams of methamphetamine in the victim's pocket. An autopsy later revealed that the victim sustained four stab wounds, two to the chest, one to the abdomen, and one to his right arm. One of the stab wounds injured the victim's heart. The cause of death was sharp force injuries. The victim had 72 nanograms of methamphetamine in his blood at the time of death.
Earlier that day, the victim had been released from a hospital after having a boil removed from beneath his arm. According to the person who picked him up from the hospital, the victim had gauze under his arm; he was in extreme pain and could hardly move his arm.
The police interviewed defendant the next day, and the video of the interview was played for the jury at trial. Defendant, who was a resident in the building, said he had known the victim for over a year but the two did not have a good relationship due to the victim's "scams" on defendant. Defendant estimated that the victim perpetrated approximately 15 scams on him, including selling defendant a "bad" cell phone and broken hair clippers. In addition, the victim used a winning but expired lottery ticket to pay defendant for a laptop charger. The victim had also sold pills to defendant's friend that the victim falsely claimed were "Narcos." Also, the victim was jealous and accused defendant of trying to "hit on" his girlfriend. Defendant also complained that the victim was "always trying to put [defendant] down and lift himself up." At the gym, the victim taunted defendant and told people defendant lifted weights "like a little girl." Defendant said his frustration of being called a "punk" and being taken advantage of was building up for "months and months."
Defendant told the detective that he buys, repairs, and sells cell phones and cuts hair.
Defendant told police that on the night of the stabbing, he called the victim a scam artist in the presence of two women. The victim took it personally and got in defendant's face, asserting that he was not a scam artist. When the two nearby women tried to separate them, defendant looked away trying to get one of the women out of the way and the victim hit defendant in the face. Defendant tried to punch back but the victim kept backing up. The victim picked up a chair and used it to shield his face. Defendant said he injured his hand when he took a swing at the victim and punched the chair instead. Defendant said the chair was the "only reason why [he] couldn't get [the victim]." Defendant pulled out his pocket knife. He described how he advanced on the victim as the victim backed up. Defendant said, "I keep following him all the way. And so when he [got] to the smoking area he couldn't back up anymore." Defendant told the detective he felt threatened by the chair, which the victim swung a few times. As he backed up, the victim said, " 'That's a knife. Don't . . . play like that, that's a knife.' " Defendant swatted the chair away and stabbed the victim twice, once in the stomach and once in the torso. He admitted he was angry as he stabbed the victim, although he did not intend to kill him. He said he was mad because the victim punched him and he did not get a chance to punch back. Defendant said the victim thought he was bigger and stronger, so defendant really wanted to fight the victim. But because he injured his hand by hitting the chair, defendant said he could not fight anymore. After defendant stabbed the victim, the victim said, " 'You got me,' " and asked for an ambulance. Defendant fled to his apartment, where he left his knife, and then left the building.
The detective asked defendant what was going through his mind when he stabbed the victim. Defendant replied, "I can't remember. I know I was just trying to get him back somewhere somehow. And at the time, you know, the passion in me had, you know, I was angry. [¶] . . . [¶] I just wanted to let him know like, you know, I'm not this punk you think I am. [¶] . . . [¶] Because you get over on me several times. And you kicked my face and talked to me nasty several times and I walk away. That doesn't mean that I'm a punk, you know? [¶] . . . [¶] And this one time I'm gonna stand up, you know, and fight you. But I didn't really mean to kill him."
Investigating police found a chair at the scene of the stabbing and a pocket knife in defendant's apartment.
Mario McEachin, a resident at the building, testified that he gave drugs to the victim the day of the stabbing. An hour later, Mario heard defendant and the victim arguing in the hallway. Mario briefly went into his apartment. When he came out, defendant, the victim and Kristina Brown, a resident at the hotel, were "all bunched together," pushing and shoving each other. Brown was pushed out of the way and defendant and the victim began hitting each other with their fists. Defendant pulled a knife out of his pocket and unfurled it, and the victim picked up a chair and tried to hold off defendant. Mario testified the victim did not move or charge forward at defendant with the chair. The victim "back-peddled" up to the end of the hallway, and both Mario and the victim asked defendant to put the knife down. Defendant ignored them and continued to advance. The victim put down the chair and defendant moved around the chair toward the victim. Defendant then stabbed defendant in the torso with the knife four to five times. Defendant fled and the victim stumbled back into the hallway and fell. Mario asked his wife, Carly McEachin, to call 911. Mario then found defendant in the apartment where defendant lived, preparing to leave. Mario did not want anyone else hurt, so he told defendant to leave, and defendant did so. The night of the stabbing, Mario told police the victim hit defendant first. Mario also told police he did not trust the victim and told the defense investigator he had never seen defendant be violent before.
Carly testified that, the day of the stabbing, she was in her apartment when she heard arguing in the hallway. She asked Mario to investigate while she stayed in their apartment. She opened the door and saw the victim with a chair in his hand, trying to fend off defendant and backing up down the hallway. She did not see the victim advance forward with the chair. She returned inside the apartment and shut the door, and then Mario told her to call 911 because the victim had been stabbed. Carly saw defendant running away with a knife.
Kristina Brown testified she was visiting the building the day of the stabbing. The victim asked her for Mario's phone number and she went inside her friend's apartment. She came out and saw defendant approach the victim, looking at the victim with "glossy" eyes. His appearance alarmed her. The victim approached defendant and defendant said to the victim, " 'Why do you come here always starting drama?' " Brown got in the middle of the two men but they ignored her. The victim tried to punch over Brown to get at defendant, but missed and hit Brown with a glancing blow. The victim and defendant started wrestling, and Brown got out of the way, ran inside her friend's apartment, and shut the door. When she opened the door again, she could still hear the victim and defendant fighting. She screamed, " 'Gordon, no!' " and saw the victim on the ground in the hallway. Brown knew defendant as a peaceful man.
Sara Pratt testified that she heard defendant and the victim arguing the day of the stabbing. She heard the victim say, " 'We could fight. We could do this. What are you doing? What's going on? Things aren't that big of a deal.' " Pratt then heard defendant say, " 'Are you fucking serious? I'll do this right now. I said I would fucking do this, and I will fucking get you.' " She saw the victim try to get away from defendant, but defendant followed him, holding a knife in his hand. The victim then picked up a chair to "make space" between himself and defendant. The victim asked defendant to put the knife away, saying he did not have a weapon. The victim then put the chair down, so they could " 'fight like men.' " The next thing Pratt saw was the victim walking down the hallway while holding his stomach and chest, saying, " 'He stuck me.' " The victim collapsed and Pratt unsuccessfully tried to help him. Defendant walked by and said, " 'I told [you] I would fucking get you.' "
The evening of the stabbing, Pratt told police she heard the fight was over the victim stealing a bike owned by defendant's neighbor. In addition, Pratt told police that she heard the victim and defendant arguing, with the victim throwing the first punch. She also told police she heard defendant say, " 'Let's be adults and knock this off,' " and " 'I don't want to hurt you. Back away,' " but the victim continued to advance. The victim saw the knife and backed up, but then advanced again. Pratt did not tell police she saw the victim holding a chair.
Defendant did not testify.
Verdict, Post-Conviction Motion, and Sentencing
A jury convicted defendant of second degree murder and found true the allegation that defendant personally used a deadly weapon. (Pen. Code, §§ 187, subd. (a), 12022, subd. (b)(1).) Thereafter, the trial court denied defendant's motion to reduce his conviction to voluntary manslaughter. The trial court sentenced defendant to state prison for 15 years to life plus one year for the deadly weapon enhancement.
Undesignated statutory references are to the Penal Code in effect at the time of the charged offense.
DISCUSSION
Defendant's sole contention is that the evidence is insufficient to establish malice. (AOB 16) According to defendant, the evidence shows that he killed the victim in the heat of passion and his conviction must be reduced to voluntary manslaughter. We disagree.
"Murder is the unlawful killing of a human being . . . with malice aforethought." (§ 187, subd. (a).) Malice aforethought may be express or implied. (§ 188.) " 'Express malice is an intent to kill. . . . Malice is implied when a person willfully does an act, the natural and probable consequences of which are dangerous to human life, and the person knowingly acts with conscious disregard for the danger to life that the act poses.' " (People v. Beltran (2013) 56 Cal.4th 935, 941-942 (Beltran).)
Manslaughter, a lesser included offense of murder, is an unlawful killing without malice upon heat of passion or imperfect self-defense. (§ 192; People v. Elmore (2014) 59 Cal.4th 121, 133.) Heat of passion exists if, " ' "at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment." ' " (Beltran, supra, 56 Cal.4th at p. 942.)
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] We determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.] In so doing, a reviewing court 'presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " (People v. Avila (2009) 46 Cal.4th 680, 701.) A reviewing court does not reweigh evidence or reevaluate a witness's credibility. (People v. Lindberg (2008) 45 Cal.4th 1, 27.) If the evidence reasonably justifies the jury's findings, we may not reverse the judgment simply because the circumstances reasonably might also be reconciled with a contrary finding. (People v. Clark (2011) 52 Cal.4th 856, 945.) Stated differently, reversal for insufficiency of the evidence is " ' "unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " ' " (People v. Manriquez (2005) 37 Cal.4th 547, 577 (Manriquez).)
There is more than sufficient evidence from defendant's statement to the police and the testimony of Carly, Mario, and Pratt to conclude defendant was the aggressor and acted with express malice. Brown saw defendant before the fight began, staring at the victim with glossy eyes. Defendant essentially admitted he initiated the fight by insulting the victim and calling him a scam artist. When the victim punched him, defendant tried to hit back and they began fighting. Whether defendant pulled out his knife before the victim picked up the chair or after, multiple witnesses testified the victim only used the chair to protect himself as he was backing up. Defendant admitted he kept "following" the victim as the victim backed up until he could not back up anymore. According to defendant's own statement, the victim was retreating backwards when he pulled out his knife. Defendant disregarded the victim's and Mario's requests to put the knife down. In addition, defendant disregarded the victim's reassurance that " '[t]hings aren't that big of a deal.' " Although defendant told the police he had no intent to kill the victim, he was angry at the victim and wanted the victim to know "I'm not this punk you think I am." And during the fight, defendant was heard to say " 'I'll do this right now. I said I would fucking do this, and I will fucking get you.' " After the fight was over, defendant walked by the collapsed and dying victim and was heard to say, " 'I told [you] I would fucking get you.' " The victim sustained a total of four stab wounds, two to the chest, one to the abdomen, and one to his right arm.
This court observed many years ago that a judgment cannot be set aside for insufficient evidence unless it clearly appears " ' "that upon no hypothesis whatever" ' " is there sufficient substantial evidence to support the conviction. (People v. Roberts (1975) 51 Cal.App.3d 125, 138 [rejecting the defendant's contention on appeal that the evidence showed a quarrel between the victim and the defendant sufficient to reduce the second degree murder conviction to voluntary manslaughter]; see also Manriquez, supra, 37 Cal.4th at p. 577.) Looking at the evidence in a light most favorable for the judgment, there was sufficient evidence to conclude any provocation here was not adequate to "induce the ordinary person of average disposition to react from that passion and not from judgment" (Beltran, supra, 56 Cal.4th at p. 953); instead, defendant simply got tired of being scammed, wanted to show the victim he was not a punk, and killed the victim with express malice.
DISPOSITION
The judgment is affirmed.
MURRAY, J. We concur: RAYE, P. J. BUTZ, J.