Filed 4/5/22 P. v. Iseli CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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Defendant Branden Willie Iseli attacked his great-uncle and great-grandfather with a knife, killing his great-uncle and inflicting life-threatening injuries on his great-grandfather. A jury convicted defendant of attempted murder with premeditation and deliberation, along with elder abuse with respect to his attack on his great-grandfather (Pen. Code, §§ 664/187, subd. (a), 368, subd. (b)(1)),[1] but it could not reach a verdict on a charge of murdering the great-uncle. In a second trial, a jury convicted defendant of first degree premeditated murder of his great-uncle. (§§ 187, subd. (a), 189, subd. (a).) The trial court sentenced defendant to a term of 25 years to life for first degree murder, with a consecutive term of life with the possibility of parole for attempted murder and five years for inflicting great bodily injury on an elder. The trial court imposed and stayed the upper term for elder abuse.

Defendant now contends (1) the trial court erred by admitting evidence of a knife that was found in his bedroom but was not used as a weapon in the crimes, and (2) the evidence was insufficient to support findings of premeditation and deliberation for the murder and attempted murder convictions.

We conclude (1) defendant forfeited his challenge to the admissibility of the knife evidence, and (2) the evidence was sufficient to support findings of premeditation and deliberation for the murder and attempted murder convictions.

We will affirm the judgment.

BACKGROUND

The evidence was essentially the same in the two trials. We will therefore recite the facts only once and indicate any material differences in the evidence. Many of the witnesses were related, so we will refer to all of them by their first names for clarity.

Defendant lived at his great-grandparents’ small home in Stockton with six other people: his great-grandparents Manuel and Raquel, his great-uncle Juan, his mother Anita, his sister Denise, and his uncle Carlos. Manuel and Raquel shared a bedroom. Juan had his own bedroom. Defendant shared a bedroom with his mother and sister. Carlos slept on the couch in the living room.

On December 14, 2017, Anita and Denise left the home a little before 7:00 a.m. Defendant opened the driveway gate for them. When Raquel woke up and left her bedroom, she saw Juan sitting on the floor. Juan told Raquel defendant had hit him and asked her to call the police. Defendant was standing at his bedroom door. Raquel went into the kitchen and saw Manuel standing in the kitchen, grabbing the side of his neck where he was bleeding. Manuel told her that defendant had hit him.

Juan was throwing up blood and told Manuel to call the police. When Manuel sat down in a chair in the kitchen because he did not feel well, defendant began hitting him in the head. Defendant then left the house. During the first trial (in which the jury convicted defendant of attempted murder of Manuel), Manuel testified defendant said to Manuel that he was going to kill him.

Carlos was awakened by defendant walking out of the house. He saw Juan bleeding on the floor and Manuel holding his neck, so he called 911. He told the 911 operator that Juan and Manuel were bleeding from their necks as if they had been stabbed. A video from a surveillance camera at a nearby apartment complex showed a person around 7:00 a.m. the same morning who appeared to change his clothing.

When sheriff’s deputies arrived, they found Manuel standing near the front door, bleeding from his neck, and Juan on the floor in the hallway, unresponsive. Medical personnel determined Juan was deceased, and they transported Manuel to the hospital.

Juan died from stab wounds to the right and left sides of his neck caused by a knife. He had multiple areas of trauma on his body, including seven sharp force injuries. There were no defensive wounds on Juan’s body.

Manuel arrived at San Joaquin County General Hospital in critical condition with life-threatening injuries. He had seven stab wounds, including to his neck, the left side of his chest, and his left hand. The knife hit but did not fully penetrate Manuel’s carotid artery in his neck, causing a dangerous aneurysm. He was stabilized and transferred to UC Davis for further treatment.

Defendant turned himself in four days after the attacks. He claimed he had not been at the residence when Juan and Manuel were injured.

In the first trial, after which the jury was unable to reach a verdict on the murder charge, the following evidence was introduced, but it was not introduced in the second trial: About 10 years before the murder, Juan was rude to defendant’s sister and went into defendant’s room. Defendant told Juan to back off, and Juan pushed defendant. Juan was rude to the others in the household, especially when he was on drugs. Even though defendant was normally patient and kind, he occasionally got angry at Juan and usually left the house to cool down.

Additional evidence will be identified in the discussion as relevant to the contentions on appeal.

DISCUSSION

I

Defendant contends the trial court erred by admitting evidence about a knife that was found in his bedroom but was not used as the weapon for the crimes. The Attorney General responds that defendant failed to make a timely objection to this evidence.

In the first trial, the prosecution introduced evidence that a knife was found hidden in defendant’s bedroom. In closing argument, the prosecutor acknowledged there was no biological evidence on the knife and argued the knife was evidence defendant owned knives, even if he took the actual weapon used in the crimes with him when he left the residence. Defendant did not object to admission of the physical knife or testimony about the knife in the first trial.

In the second trial, the prosecution again introduced testimony that a knife was found hidden in defendant’s bedroom, again without objection from the defense. No blood was found on the knife.

After the conclusion of testimony in the trial, the trial court held a conference to consider admission of exhibits. At that time, defendant objected to admission of the knife. He argued it was irrelevant because there was no DNA evidence on the knife. The trial court overruled the relevance objection.

After the trial court overruled defendant’s objection to admission of the knife as an exhibit, the prosecutor argued to the jury that defendant had knives available to him and had a knife in his room. The prosecutor also argued the knife in defendant’s bedroom was evidence of consciousness of guilt because it was hidden in a laundry basket.

“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion . . . .” (Evid. Code, § 353; People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1214 [failure to make timely objections forfeits appellate consideration].) The objection must be made at the time the evidence is introduced. (People v. Demetrulias (2006) 39 Cal.4th 1, 22.)

Defendant did not address forfeiture in his opening brief. And, after the Attorney General raised forfeiture in the respondent’s brief, defendant again did not address the issue.

Defendant forfeited appellate consideration of the admissibility of evidence concerning the knife found in his bedroom. While defendant objected to the admission of the knife as an exhibit, he did not object to the testimony concerning the knife. His argument on appeal focuses on the relevance of the testimony. The argument is forfeited because defendant did not make a timely and specific objection to testimony concerning the knife. (Evid. Code, § 353, subd. (a).)

II

Defendant next contends the evidence was insufficient to support findings of premeditation and deliberation for the murder and attempted murder convictions.

The juries found defendant committed attempted murder with premeditation and deliberation (§§ 664/187, subd. (a) (first trial)) and first degree premeditated murder (§§ 187, subd. (a), 189, subd. (a) (second trial)). “A crime is premeditated when it is considered beforehand and deliberate when the decision to commit the crime is 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. [Citations.] [¶] The process of deliberation and premeditation does not require any extended period of time: ‘ “The true 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.] The requirement of premeditation and deliberation excludes acts that are the ‘result of mere unconsidered or rash impulse hastily executed.’ ” (People v. Gonzalez (2012) 210 Cal.App.4th 875, 886-887.)

When assessing the sufficiency of evidence of premeditation and deliberation, courts often consider three “Anderson factors”: planning, motive, and manner of killing or attempted killing. (People v. Shamblin (2015) 236 Cal.App.4th 1, 10, citing People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson).) However, the Anderson factors are merely guidelines. (People v. Gonzalez (2012) 54 Cal.4th 643, 663 (Gonzalez).) Although motive is an Anderson factor, “the lack of a discernable rational motive does not preclude a conviction for first degree premeditated murder.” (People v. Whisenhunt (2008) 44 Cal.4th 174, 202.) “ ‘A senseless, random, but premeditated, killing supports a verdict of first degree murder.’ ” (People v. Thomas (1992) 2 Cal.4th 489, 519.) “In reviewing a sufficiency of evidence challenge, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” (Gonzalez, at p. 653, italics omitted.)

With respect to his killing of Juan, defendant argues there was no evidence in the second trial of motive or that the manner of killing suggested premeditation and deliberation. He also claims there was minimal evidence of planning. We disagree. While there was no evidence of motive, the evidence of defendant’s planning and the manner in which he killed Juan support the jury’s determination that defendant’s killing of Juan was premeditated and deliberate.

There was evidence defendant planned to kill Juan. Defendant secreted at least one knife in his bedroom, and the jury could reasonably infer he also had in his bedroom the knife he used to kill Juan. There appears to have been no argument or confrontation leading up to his killing of Juan, as Juan had no defensive wounds. Additionally, there was evidence defendant left the house with other clothing to change into once he was away from the house. From all of this evidence, the jury could reasonably infer defendant had a plan to use a knife, attack Juan unprovoked, and flee with a change of clothing.

The manner of the killing also supported a finding of premeditation and deliberation. Along with the evidence noted above concerning planning, defendant’s sustained attack on Juan with the knife, focusing on Juan’s neck where maximum effect toward killing Juan could be obtained, indicated that the manner of the killing was intended to take Juan’s life. Considering this evidence of planning and the manner in which defendant killed Juan, we conclude there was sufficient evidence introduced in the second trial to sustain a finding of premeditation and deliberation in support of a first degree premeditated murder conviction.

The same is true concerning the evidence presented in the first trial supporting a finding that defendant’s attempted murder of Manuel was premeditated and deliberate. The jury could have reasonably determined defendant had a motive to kill Manuel because Manuel saw Juan throwing up blood and Juan asked Manuel to call the police. Defendant’s attack on Manuel was unprovoked while Manuel was sitting down. Defendant attacked Manuel in the neck, injuring but not quite severing Manuel’s carotid artery. Defendant told Manuel he was going to kill him. Again, defendant had hidden at least one other knife and took clothing with him when he immediately made his escape. This evidence of motive, planning, and manner of attempted murder was sufficient to support a jury finding of premeditation and deliberation in the first trial.

DISPOSITION

The judgment is affirmed.

/S/

MAURO, J.

We concur:

/S/

RAYE, P. J.

/S/

KRAUSE, J.

[1] Undesignated statutory references are to the Penal Code.