California Court of Appeal Jul 18, 2013 No. E055392Unpublished
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E055392
v. (Super.Ct.No. INF067325)
JOEL LEAL CARDOSO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of 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.
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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
“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.”
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(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
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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
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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
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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
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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.
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. There,
the defendant and two others were driving around; the defendant was in the backseat.
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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.
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IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING J.
We concur:
McKINSTER Acting P. J.
RICHLI J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the prosecution presented sufficient evidence of premeditation and deliberation to support the attempted murder conviction, thereby justifying the trial court's denial of the defendant's motion for acquittal.
Issues
Whether the trial court erred in denying the defendant's motion for judgment of acquittal under Penal Code section 1118.1 regarding the attempted premeditated murder charge.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We conclude the prosecution’s evidence is sufficient to support a finding of attempted premeditated murder.”
“We hold that substantial evidence supports the trial court’s decision.”
“These facts clearly demonstrate the necessary preexisting reflection to support a finding of premeditation and deliberation.”