Filed 9/28/18 P. v. Rodriguez CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

In the course of a domestic dispute, defendant Lorenzo Rodriguez threatened to kill several people, grabbed a knife, and ran toward a teenager with the knife, not stopping until after the teenager had shot him multiple times. After a court trial, Rodriguez was found guilty of attempted murder, assault with a deadly weapon, and two counts of criminal threats, and the trial court sentenced him to nine years and four months in prison. On appeal, his sole contention is that the conviction for attempted murder lacks substantial evidence. We disagree and affirm.

I.
Factual and Procedural
Background

In August 2015, Rodriguez began renting an upstairs room in the home of C.G. and her two young daughters. Rodriguez and C.G., who had known each other for several years, soon began an intimate relationship. She gave birth to another daughter that December and told Rodriguez that he had to either “sober up and stop drinking or leave” because he was “drinking constantly every single day” and “go[ing] to bed drunk.” Even though he agreed to stop drinking, she soon asked him to move out, and he did so in late January 2016. Still, he often stayed overnight at C.G.’s, and as far as C.G. knew he did not drink for the next few months. Meanwhile, around March of that year, L.K. and three of her children, including two teenage sons, began renting two downstairs rooms at the house.

On the night of April 22, 2016, Rodriguez spent the night at the house with C.G. When C.G. woke up the next morning, a Saturday, he had already left. C.G. planned to take her daughters to a birthday party, but shortly before she was going to leave, Rodriguez returned to the house. C.G. had not told him about the party because she did not want to take him, and he became angry, wanting “to know where [she] was going, who [she] was going with.” C.G. told him that he was not her husband and could not tell her what to do, and she went to the party with her daughters.

When C.G. got home at around 3:30 p.m., Rodriguez was upstairs in his former room. The room’s door was locked, which was unusual, and C.G. used her spare key to open it. When she went inside, she saw Rodriguez asleep on the bed and “a bunch of beer cans on the floor.” There were three empty 24-ounce cans and a fourth that was mostly full. His drinking upset her because he had promised not to drink, and she left the room without waking him and went downstairs.

Sometime later, Rodriguez also came downstairs. He tried to talk to C.G. in English, a language he usually spoke when he was drunk, but she ignored him. She then went upstairs to check on her baby, who was asleep in C.G.’s bedroom. Rodriguez entered the room, and C.G. started yelling at him, saying, “Why are you drinking? You promised me you weren’t going to drink.” Rodriguez told her that he had “just put a little bit of beer in his mouth, swirled it around and spit it out,” but C.G. did not believe him because he was stumbling around and otherwise “acting . . . drunk.” After they argued, Rodriguez “left in a rage,” and C.G. lay down to take a nap with the baby.

A few hours later, Rodriguez woke C.G. up and asked her to call a tow truck because “his tire had exploded” while he was driving and “his truck was in a ditch.” She agreed, but she refused to drive him to his truck or to let him borrow her car to go there. He became angry again and left in his other vehicle, a van, but returned a few minutes later and told her that police officers were already on the scene. She again refused to drive him there, and he became “verbally aggressive,” telling her she was “nothing” and was “going to pay for everything [she was] doing.”

As Rodriguez continued yelling at C.G., she lay on the bed with her baby and ignored him. He then told her that she was “going to go to hell.” C.G. sat up and slapped him, at which point he “turned his head and looked at [her] straight in [her] eyes and said with a very calm voice, . . . [¶] . . . [¶] . . . ‘Slap me one more time so I can kill you, then kill myself.’ ” C.G. became scared for her and her baby’s lives.

C.G. lay back down on the bed, and Rodriguez moved to slap her. C.G. rolled off the bed to avoid his hand, although he was able to “gently tap[]” her mouth. As she lay on the floor, curled into a fetal position, Rodriguez knelt down beside her and told her again that he was going to kill her. She tried to get up, but he pushed her down. She then told him that she needed to check on the baby, who was still on the bed, and he allowed her to do so. C.G. grabbed her daughter, and Rodriguez said, “ ‘I told you not to do this. Don’t be messing with me. They tell me that you’re trying to mess with me.’ ” At trial, C.G. explained that she understood “they” to refer to “the voices in his head” Rodriguez had mentioned to her, which told him “all kinds of bad things,” including that she was cheating on him.

C.G. ran downstairs and told L.K. to call the police because Rodriguez wanted to kill her. Instead, L.K. and her sons, 18-year-old B.K. and 16-year-old C.K., went upstairs to talk to Rodriguez. From downstairs, C.G. could hear L.K. screaming and telling Rodriguez to leave. L.K. did not testify, but according to B.K., Rodriguez said L.K. and her sons “needed to leave because it was not [their] business.”

A few minutes later, L.K. and her sons came back downstairs, and Rodriguez pushed his way into the room where C.G. was sitting. Rodriguez asked C.G. if they could talk, but C.G. refused and left the room. Meanwhile, B.K. went into his bedroom, where his siblings and C.G.’s older children were. B.K. told C.K. to take the other children out through the back door, because they were scared and “really freaking out,” and he was worried that Rodriguez had a weapon. After several minutes of Rodriguez’s going up and down the stairs and yelling, L.K. called 911.

Meanwhile, C.G. had gone into B.K.’s room at L.K.’s direction. B.K. had retrieved a revolver from a locked case under his bed, and he stood in front of the bedroom door and resisted as Rodriguez tried to enter the room. B.K. repeatedly told Rodriguez to leave but did not yet display the gun, which B.K. was holding behind his leg.

Rodriguez was eventually able to push into the bedroom. B.K. told him to calm down, and as L.K. stood between him and Rodriguez, Rodriguez repeatedly threatened to kill him. When Rodriguez attempted to move toward B.K., C.G. put down her baby and grabbed Rodriguez by the “face to make him look at [her] so he could snap back to reality.” B.K. then pointed the gun in the air and said, “ ‘Lorenzo, please stop.’ ” Rodriguez responded, “ ‘Oh, you’re a man, I can kill you now,’ ” and the other three pushed him out of the room.

B.K. testified that his mother then left the room and Rodriguez went upstairs. Rodriguez quickly came back into B.K.’s bedroom, and L.K. “came in, probably just five seconds after him, and she was holding [B.K.’s] little sister’s BB gun.” Rodriguez and L.K. were arguing, and Rodriguez reached out to grab L.K. L.K. then hit him in the head with the butt of the BB gun, and after he told her to hit him again, L.K. did so.

C.G. did not mention the BB gun incident in her testimony, and according to her, after Rodriguez was pushed out of B.K.’s bedroom she was alone in the room with her baby. C.G. closed the door, but she could hear Rodriguez say, “ ‘I’m going to kill you all.’ ” B.K. testified that meanwhile, he briefly blacked out after seeing his mother hit Rodriguez with the BB gun, and the next thing he knew he was outside his room.

After hearing “a bunch of footsteps,” C.G. opened the bedroom door and heard L.K. say, “ ‘Oh, shit, he’s getting a knife.’ ” Both C.G. and B.K. saw Rodriguez proceeding quickly down the hallway toward the kitchen, where knives were kept in a container on the windowsill. According to C.G., Rodriguez then came back “holding [a] knife . . . with the blade pointing towards [B.K.]” B.K. testified that Rodriguez was moving quickly toward him with the knife pointed at an upward angle and seemed “furious.” B.K. perceived Rodriguez’s actions as threatening, and they prompted him to point his gun at the other man.

C.G. heard B.K. say, “ ‘Please, I don’t want to do this, Lorenzo.’ ” She then saw Rodriguez “running towards [B.K.],” and B.K. fired the gun when Rodriguez was about 20 feet away. Similarly, B.K. testified that he aimed at Rodriguez’s shoulder and shot him from about 20 feet away, and Rodriguez “kind of twitch[ed], like he got hit, and he was still coming.”[1] B.K. pulled the trigger a second time, but the gun “jammed,” and pulled it a third time, but was not sure whether the gun fired. According to B.K., he then “just kept pulling the trigger. And then [Rodriguez] went down,” about four to five feet away. C.G. and B.K. agreed that Rodriguez was still holding the knife after he fell.

Because Rodriguez still had the knife, B.K. believed that he “wasn’t going to stay down.” B.K. testified that he therefore pulled the trigger several more times, resulting in the gun firing once. He then switched to holding the gun by the barrel so that he could use it to hit Rodriguez, who was still approaching him. When Rodriguez “got close enough,” B.K. pushed him, and Rodriguez “stumbled and fell on the floor and that’s when the knife slid away from him.” B.K. told L.K. to get the knife, which she did, and he then approached Rodriguez, who was “[h]alf on the couch” and had been shot in the upper body and leg.[2] Rodriguez told B.K. to “ ‘[s]top,’ ” stumbled out of the house, and left in his van.

Rodriguez testified in his own defense and disputed much of C.G.’s and B.K.’s accounts, including insignificant details. Broadly, Rodriguez denied threatening anyone or hitting anyone. He also claimed that L.K. had not only hit him with a “long gun” but had shot him with it, and that this was the only reason he went to get the knife. In discussing his possession of the knife, he acknowledged that he was “prepared” to stab somebody.

Rodriguez was charged with felony counts of attempted murder of B.K., assault with a deadly weapon on B.K., and criminal threats against B.K., C.G., and L.K. respectively.[3] In connection with the attempted murder charge, it was also alleged that Rodriguez had personally used a deadly or dangerous weapon, a knife.[4] The trial court found him not guilty of criminal threats against L.K. and guilty of the remaining charges, and it found true the enhancement allegation. He was sentenced to a total term of nine years and four months in prison, composed of the midterm of seven years for the attempted murder and consecutive terms of one year for the personal use of a knife and eight months each for the criminal threats against B.K. and C.G. A three-year term for assault with a deadly weapon was imposed and stayed under section 654.

II.
Discussion

Rodriguez claims that there was insufficient evidence to support either of the two elements of attempted murder, namely a direct but ineffective step toward killing another person and an intent to kill. We are not persuaded.

To sustain a conviction of attempted murder, there must be substantial evidence of “ ‘the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.’ ” (People v. Houston (2012) 54 Cal.4th 1186, 1217.) Attempted murder, unlike murder, requires a showing of express malice, a mind state that requires a defendant to have “a deliberate intention unlawfully to kill a fellow human being.” (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.) To constitute an attempt, “the overt act must go beyond mere preparation and show that the killer [was] putting his or her plan into action.” (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8 (Decker).)

In analyzing a claim of insufficient evidence, “ ‘we review the whole record to determine whether . . . [there was] substantial evidence to support the verdict . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the [factfinder] could reasonably have deduced from the evidence.’ ” (People v. Manibusan (2013) 58 Cal.4th 40, 87.)

We begin by addressing the act requirement, on which Rodriguez focuses. He claims that there was no evidence of any “act that can constitute an attempt at murder” because, although he armed himself with a knife, this was “mere preparation.” He relies on the principle that “ ‘[b]etween preparation for the attempt and the attempt itself, there is a wide difference. The preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement toward the commission after the preparations are made.’ ” (Decker, supra, 41 Cal.4th at p. 8.) Here, however, there was evidence not only that Rodriguez picked up a knife but also that he ran toward B.K. while pointing it at him, not stopping even after being shot. We conclude that running toward someone while holding a knife, particularly after threatening to kill the person, crosses the line from preparation to putting a plan to kill into action. (See ibid.; see also People v. Johnson (2013) 57 Cal.4th 250, 258 [“rushing up to . . . intended victim with [a] gun drawn . . . may constitute an attempt to commit murder”].) Specifically, we reject Rodriguez’s suggestion that a defendant must make a “stabbing, slashing[,] or cutting motion” to commit attempted murder with a knife. As Rodriguez himself recognizes, a direct but ineffectual step “need not be the last proximate or ultimate step toward commission of the substantive crime.” (People v. Kipp (1998) 18 Cal.4th 349, 376.)

Nor are we persuaded by Rodriguez’s attempt to analogize this case to People v. Miller (1935) 2 Cal.2d 527, in which the Supreme Court concluded that there was insufficient evidence to sustain a conviction of attempted murder. (Id. at p. 532.) There, the defendant walked toward another man while holding a rifle, stopped approximately 200 yards away and loaded it, and continued walking in the same direction without ever “lift[ing] his rifle as though to take aim.” (Id. at p. 529.) The putative victim began running away, but the defendant did not chase him. (Ibid.) Instead, the defendant maintained his original course until he reached a third man, who “took the gun into his own possession, the defendant offering no resistance.” (Ibid.) Here, in contrast, Rodriguez ran toward B.K. from a short distance away holding a weapon that can be deployed more quickly than a gun. Moreover, Rodriguez persisted in moving toward B.K. without deviation, only giving up after being shot several times. Thus, Miller does not assist Rodriguez because its facts are plainly distinguishable.

Rodriguez also claims that there was insufficient evidence of the required intent to kill because “[h]e was charged with one count of attempted murder, but we cannot say of whom and we cannot say how.” In fact, the information charged him with the attempted murder of B.K., and we are at a loss to understand how the evidence creates any confusion about whom Rodriguez intended to kill when he ran toward B.K. with the knife. It is true that Rodriguez threatened to kill multiple people, not just B.K., but there is no suggestion in the record that after retrieving the knife Rodriguez made a move to stab anyone other than B.K. In short, there was ample evidence of both the required act and the required intent to sustain the conviction for attempted murder.

III.
Disposition

The judgment is affirmed.

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Humes, P.J.

We concur:

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Dondero, J.

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Banke, J.

People v. Rodriguez A150109