THE PEOPLE v. HOWARD (1992)

OPINION

Harry Lloyd Howard appeals his first degree murder conviction, contending: (1) there was insufficient evidence of premeditation and deliberation; (2) the trial court erred reversibly in admitting evidence of flight; and (3) the court erroneously denied his motion to suppress evidence. We affirm.

Three eyewitnesses heard arguing inside Junior's Market and then saw Howard and Yeon Kon Chang yelling and shoving each other at the doorway. Howard took his skateboard from under his arm and hit Chang in the head about four times with it. Chang tried to fight back but eventually fell to the ground.

One witness yelled at Howard twice to “knock it off.” She saw Howard go through Chang's top shirt pocket, where he usually kept his wallet, but did not see Howard take anything. Howard dragged Chang by the feet partially behind an automobile and peeked over the hood. When Chang attempted to sit up, Howard hit him once or twice more in the head with the skateboard. The witness again screamed at Howard to “knock it off,” and he paused for a moment to look at them. Realizing Howard was not going to stop, the witnesses left to call the police.

Chang was alive when the paramedics arrived but died the next day from massive head injuries. His wallet was missing and was never found. Nothing was missing from the store, and neither Chang's watch, which was found in his shoe, nor his money, kept in a side pants pocket, was taken. His keys were found later in Howard's room.

Howard presented evidence that he had consumed great quantities of alcohol and cocaine the weekend leading up to the killing. Such usage can cause defects in thinking and judgment, resulting in overreaction and an inability to perceive whether a situation is truly threatening.

Howard testified that he went into Chang's store to get change to call his relatives in Texas.¹ When Chang refused they argued and Howard hit the counter with his skateboard. Chang jumped across the counter and shoved Howard out of the store. After Chang kept pushing and yelling, Howard hit him with his skateboard until Chang fell. When Chang rose and lunged at him, Howard hit Chang again. In his confusion, Howard accidentally picked up Chang's keys, but took nothing else. He did not intend to kill Chang or steal from him.

I

Howard contends the evidence was insufficient to convict him of first degree murder. Not so.

The prosecution sought a first degree murder conviction on a theory of felony murder. However, the jury was divided ten to two for acquittal on the burglary charge against Howard, and was divided seven to five for conviction on the robbery charge. Although the jury need not be unanimous on the theory upon which a first degree murder finding is based (Schad v. Arizona (1991) 501 U.S. 624 [111 S.Ct. 2491] ), some of the jurors must have found the murder was premeditated and deliberate to support the conviction.²

It is the prosecution's burden to prove premeditation and deliberation beyond a reasonable doubt. (People v. Rowland (1982) 134 Cal.App.3d 1, 9.) However, when the sufficiency of the evidence is challenged, an appellate court is not required to “ “ ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” [Citation.] Instead the relevant question is 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.]” (People v. Johnson (1980) 26 Cal.3d 557, 576.)

“In determining whether a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt, the appellate court ‘must ․ presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citations.] The court does not, however, limit its review to the evidence favorable to the respondent․ ‘[O]ur task ․ is two-fold. First, we must resolve the issue in the light of the whole record-i.e., the entire picture of the defendant put before the jury-and may not limit our appraisal to isolated bits of evidence selected by the respondent. Second, we must judge whether the evidence of each of the essential elements ․ is substantial; it is not enough for the respondent simply to point to “some” evidence supporting the finding, for “[n]ot every surface conflict of evidence remains substantial in the light of other facts.” ’ [Citation.]” (Id. at pp. 576-577; see also People v. Cruz (1980) 26 Cal.3d 233, 244 [applying the same standard to review first degree murder conviction].)

Both parties rely on People v. Anderson (1968) 70 Cal.2d 15 to analyze the sufficiency of the evidence. The Anderson court supplied the following factors “which might lead an appellate court to sustain a finding of premeditated murder: (1) facts showing prior planning activity; (2) facts suggesting motive; (3) facts about the manner of the killing which suggest a preconceived design.” (People v. Murtishaw (1981) 29 Cal.3d 733, 749.)

That analysis is helpful in determining whether a rational juror could have found premeditation and deliberation beyond a reasonable doubt when the evidence surrounding the killing is entirely circumstantial. However, these factors “are not elements of the crime of first degree murder.” (People v. Lucero (1988) 44 Cal.3d 1006, 1021.) They “merely set forth a standard of appellate review by identifying the type of evidence that [the Supreme Court] has found sufficient to sustain a finding of premeditation and deliberation.” (Ibid., emphasis added.) We need not rely exclusively on the factors where, as here, witnesses watched the killing. (See People v. Sirhan (1972) 7 Cal.3d 710, 727-728 [finding ample evidence of premeditation and deliberation without resort to the Anderson analysis]; but see People v. Jackson (1989) 49 Cal.3d 1170, 1200 [applying the Anderson factors to a witnessed killing].)

Three witnesses saw Howard deliver the fatal blows. They saw him drag Chang behind an automobile after the first blows had rendered Chang virtually helpless. They saw Howard peek over the car as if to see whether he was being watched, and then deliver more blows to Chang.

No particular amount of time is necessary to premeditate and deliberate about a killing. “ ‘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, but the express requirement for a concurrence of deliberation and premeditation excludes ․ those homicides ․ which are the result of mere unconsidered or rash impulse hastily executed.’ [Citations.]” (People v. Velasquez (1980) 26 Cal.3d 425, 435.) From the circumstances here, a reasonable juror could conclude that Howard engaged “careful thought and a weighing of considerations.” (People v. Stress (1988) 205 Cal.App.3d 1259, 1270; see People v. Jackson, supra, 49 Cal.3d at pp. 1200-1201 [defendant killed officer at end of argumentative confrontation]; People v. Lunafelix (1985) 168 Cal.App.3d 97, 101-102 [after brief conversation at a bar, defendant pursued the victim, rendered him helpless, and killed him]; compare People v. Munoz (1984) 157 Cal.App.3d 999, 1010 [evidence insufficient where defendant killed victim, a stranger, within seconds of confronting him].) No matter what the circumstances of the initial assault were, Howard's actions leading to the final attack were all that was necessary to support a finding of first degree murder.³

Howard's argument that “the” fatal blow may have been struck during the first beating does not change this result. Although there must be a joint operation of act and intent (Pen.Code, § 20; People v. Green (1980) 27 Cal.3d 1, 53-54), no case has sought to dissect the “act” of killing into such fine portions. It is enough that at some time during the assault, the defendant premeditates and deliberates about the intended killing and does an act in furtherance of it.⁴

II

Howard argues the trial court erred reversibly by admitting evidence he gave a false name and apartment number and then fled when detained by the police. He claims it was irrelevant because he admitted the killing and was prejudicial because the jury might use it in an improper way.

His argument fails to take into account his reliance at trial on a Flannel defense. (People v. Flannel (1979) 25 Cal.3d 668.) To establish the defense, the defendant must show an “honest belief” in the need to defend. (Id. at p. 674.) Evidence that Howard fled and gave false information tends to show a consciousness of guilt and is directly relevant to the existence of an “honest belief.” The court properly admitted it.⁵

III

Howard asserts the trial court should have granted his motion to suppress evidence. He is wrong.

A week after the murder, Officer Ballew saw Howard making a telephone call within 100 yards of where the killing occurred. Howard was the same general size as the killer, had the same kind of curly hair in the back, wore similar tennis shoes and carried a skateboard.⁶ When Howard finished his call, Ballew approached him and said he wanted to talk. Howard, appearing nervous, provided identification and asked why he was being stopped. Ballew said he wanted to eliminate him as a suspect in a crime and had called other officers to view him. Howard twice expressed a desire to leave, and Ballew eventually ordered him to remain. As the other officers approached, Howard fled, dropping his skateboard along the way.

Ballew soon discovered the apartment where Howard lived with Deanna Warren. Ballew asked Warren to notify him when Howard returned. Later that evening she called, saying Howard had returned and the police should come and arrest him. When the police arrived, she admitted them and directed them to Howard's room. They knocked and when Howard came to the door, they arrested him.⁷ Two warrantless searches of the apartment days after Howard's arrest yielded evidence against him.

Howard claims Officer Ballew did not have sufficient cause to detain him because the description of the killer was general and he differed from that description. The detention was reasonable.

An officer may detain a suspect when the officer has a reasonable suspicion based on articulable facts “that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity.” (In re Tony C. (1978) 21 Cal.3d 888, 893 .) To determine whether the trial court correctly found that test was met here, we use the following standard: “ ‘[T]he power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor the exercise of that power, and the trial court's findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence.’ ․ [¶] ‘The trial court also has the duty to decide whether, on the facts found, the search was unreasonable within the meaning of the Constitution.’ [Citation.] Because ‘that issue is a question of law,’ the appellate court is not bound by the substantial evidence standard in reviewing the trial court's decision thereon. Rather ․ in such review it is ‘the ultimate responsibility of the appellate court to measure the facts, as found by the trier, against the constitutional standard of reasonableness.’ [Citation.] On that issue, in short, the appellate court exercises its independent judgment.” (People v. Leyba (1981) 29 Cal.3d 591, 596-597, fn. omitted.)

A number of appellate decisions have upheld detentions based in part upon a general description of the suspect. (See, e.g., People v. Flores (1974) 12 Cal.3d 85, 91-92 [general physical descriptions coupled with unique automobile]; People v. Rodriguez (1987) 196 Cal.App.3d 1041, 1047-1048 [general description of suspect and automobile coupled with possible motive]; People v. Fields, supra, 159 Cal.App.3d at pp. 564-566 [sex, height, race, age, and attire provided sufficient distinguishing characteristics]; People v. McClusky (1981) 125 Cal.App.3d 220, 223 [general description and detention made five minutes after burglary]; compare Williams v. Superior Court (1985) 168 Cal .App.3d 349, 361 [invalid detention based upon officer's materially distorted recollection of description].)

Howard relies upon Williams v. Superior Court, supra, to claim the differences between Howard's characteristics and the description given invalidated the detention. But unlike the officer in Williams, Ballew never distorted the description provided by the witnesses. He merely noted the similarity as his basis for the detention. Further, the differences were not sufficient to invalidate it. Howard was a young man of moderate height and weight. Although these factors alone would not have justified the detention, some differences between Howard's characteristics and the description given were not fatal to it. And there was more. Seeing a skateboarder of the same general description within 100 yards of the crime scene wearing similar tennis shoes and sporting a similar hair style was sufficient to justify Ballew's initial inquiry. At the very least, when Howard became nervous it justified Ballew's order that he not leave. (See People v. Fields, supra, 159 Cal.App .3d at p. 564.)

Howard stresses that the detention did not occur until a week after the killing. “Certainly the length of time that transpires after the offense ․ may be a factor. If the description is sufficiently unique, the time lapse may expand to hours, days, or longer․ The ultimate question is whether the description affords a sufficient basis for ‘selective investigative procedures,’ vis-a-vis a universe made up of all persons within fleeing distance of the crime in question.” (People v. Fields, supra, 159 Cal.App.3d at p. 565.) The factors related above provided sufficient distinguishing marks to reasonably and appropriately “narrow the field.”⁸ The detention was reasonable.

Howard challenges his warrantless arrest inside his residence later that same day. (See People v. Ramey (1976) 16 Cal.3d 263, 276 [with certain exceptions warrantless arrest in residences are illegal].) He reasons that the police only had probable cause to arrest him for a violation of Penal Code section 148, misdemeanor resisting arrest, and could not rely on hot pursuit of a misdemeanant as an exigent circumstance obviating the need for a warrant. (See Welsh v. Wisconsin (1984) 466 U.S. 740, 749-750.)

Howard ignores the evidence that Warren gave the police consent to enter. Consent is an exception to the rule of People v. Ramey, supra, 16 Cal.3d 263. (People v. Superior Court (Kenner ) (1977) 73 Cal.App.3d 65, 68.) Howard urges the police had no consent to enter his room to arrest him. But he directs us to no case suggesting further consent is necessary after the police have been voluntarily admitted to the residence. And there is no evidence they arrested him in the room. They knocked; he responded; they arrested him, as he puts it, “in an area in which the officers had Warren's permission to be.” People v. Ramey, supra, 16 Cal.3d 263 allows the police to request that a suspect leave a protected area and move to where a warrantless arrest is appropriate. (People v. Tillery (1979) 99 Cal.App.3d 975.) The warrantless arrest was valid.

Howard urges that two warrantless searches of the residence days after his arrest were illegal. But Howard was on probation when the searches occurred. It is irrelevant that the police were unaware of that fact. (People v. Viers (1991) 1 Cal.App.4th 990, 993.) The searches were proper.

Howard contends his statement made to the police after his release from jail was the product of an illegal detention. But the police testified Howard voluntarily accompanied them to the police station, and the trial court believed them. (People v. Fields, supra, 159 Cal.App.3d at pp. 563-564 [appellate court bound by trial court resolution of credibility issue where supported by substantial evidence].)⁹

The judgment is affirmed.

FOOTNOTES

1.  Howard offered testimony by others to corroborate his claim that he was attempting to make such a call.

2.  Howard suggested that the prosecution did not rely on a premeditation and deliberation theory of first degree murder. Although the great majority of the prosecutor's argument was devoted to a felony murder theory, both counsel mentioned it in argument and the court instructed on it.

3.  Couched in terms of the analysis used in People v. Anderson,supra, 70 Cal.2d 15, these acts constituted “extremely strong evidence” of “how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing․” (Id. at pp. 26-27.) Strong evidence of planning has been held sufficient to uphold first degree murder convictions. (Ibid.)The facts are also susceptible of a finding of the second Anderson factor, motive. A jury could reasonably infer that once Howard saw the witnesses, he decided to kill Chang to eliminate him as a witness to the circumstances behind the assault. Evidence of planning and motive have also been held to support findings of first degree murder. (People v. Anderson,supra, 70 Cal.2d at p. 27.) However, we reiterate that the Anderson analysis is not a sine qua non of affirmance.

4.  In People v. Green,supra, 27 Cal.3d 1, the Supreme Court stated. “[T]he defendant's intent to rob will not support a conviction of felony murder (§ 189) if it arose after the infliction of the fatal wound. [Citations.]” (Id. at p. 54, fn. 44.) This might seem to support Howard's position. However, The Green court also phrased the rule as follows: “ ‘[T]he evidence must establish that the defendant harbored the felonious intent either prior to or during the commission of the acts which resulted in the death ․” ’ (Ibid., emphasis added.) This language better describes the proper rule.

5.  Howard argues that because the Flannel defense would only result in a reduction in the crime to manslaughter, he might well have lied and fled to avoid conviction for that crime. The claim is specious. If Howard had an honest belief in the right to defend, he would anticipate exoneration even though the justice system might later find his belief was unreasonable.

6.  Howard differed somewhat from the physical description given. He was 26 years old, 5 feet, 10 inches tall, and weighed 155 pounds. The description was of a 15 to 18 year old, 5 feet, 6 inches, to 5 feet, 7 inches, and 140 pounds. It turned out that Howard did not match the composite drawing of the suspect, but Ballew made the detention based upon the description he recalled.

7.  Some of Warren's testimony at the motion to suppress evidence was at odds with the officer's, but the trial court's express and implied factual findings are binding on this court. (People v. Fields (1984) 159 Cal.App.3d 555, 563-564.)

8.  Howard's possession of a skateboard is a major factor. Although millions of youths own skateboards, and one might hardly wait a minute in beach areas without seeing one, there was no testimony here that this was such an area. Although a young person with a skateboard would not necessarily be the killer, it provided a significant limiting factor.

9.  Even if the statements were the product of an illegal detention, it was proper to admit them for impeachment. (UnitedStates v. Havens (1980) 446 U.S. 620.)

WALLIN, J.

We Concur: CROSBY, ACTING P. J., SONENSHINE, J.