Filed 1/15/16 P. v. Shaw CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066595

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD245194)

FRANK DWAYNE SHAW,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of San Diego County, Leo

Valentine, Jr., Judge. Affirmed.



         Nancy Olsen, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Heather M.

Clark, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury found defendant and appellant Frank Dwayne Shaw guilty of the first

degree murder of victim Maureen Skeffington. (Pen. Code,1 § 187, subd. (a).) The jury

also found Shaw personally used a deadly and dangerous weapon (i.e., a knife) within the

meaning of section 12022, subdivision (b)(1). In a bifurcated proceeding, Shaw admitted

that he had 14 strike priors within the meaning of sections 667, subdivisions (b) through

(i), 1170.12 and 668 for attempted robbery, robbery, and assault with a firearm. He also

admitted he had 14 prior probation denials, a first prison prior within the meaning of

sections 667.5, subdivision (b) and 668, and a first serious felony prior within the

meaning of sections 667, subdivision (a)(1), 668 and 1192.7, subdivision (c). The court

sentenced Shaw to a term of six years plus 75 years to life.

       Shaw contends the evidence in the record is insufficient as a matter of law 1) to

show he killed Skeffington; 2) to support a first degree murder conviction under a theory

of premeditation and deliberation; and 3) to support a first degree murder conviction

based on the felony-murder doctrine. Affirmed.

                               FACTUAL BACKGROUND

       A. Prosecution Evidence

       At the time of her murder, Skeffington lived in an apartment complex located in

the 3800 block of Cherokee Avenue, San Diego. Skeffington was an "escort" or

prostitute. She did not hide what she did for a living, as she even gave out business cards

to potential clients that stated she was an escort.




1      All further statutory references are to the Penal Code.
                                               2
       Witness Robert Smith testified that he lived in a garage (that had been converted

into a living space) next door to Skeffington and that they shared a common wall. Smith

saw Skeffington pretty much every day. Smith typically stayed in the converted living

space during the day, but beginning around 1:00 a.m. he would "go on [his] junking

route" until about 4:00 or 5:00 a.m.

       Smith last saw Skeffington on Friday, August 24, 2012. On that day, Smith asked

Skeffington to move her car so that he could put the trash out for pickup. Skeffington

moved her car and later that day moved it back. Smith never saw Skeffington again.

       On Tuesday, August 28, Smith decided something must have happened to

Skeffington because she had broken a promise to buy him a beer for his birthday on

Monday, August 27. Smith also was concerned because in the past when Skeffington left

town, she always told him where she was going, and because he had not seen her since

Friday, August 24. Smith contacted apartment property manager Kathy Bell who in turn

called the police.

       Witness Susan Anderson testified she had been staying with Smith in the

converted living space (after she had been discharged from the hospital) for about two

weeks before the murder. During this time, Anderson saw maybe two or three clients of

Skeffington come through the gate and go into Skeffington's apartment. On one or two

of those occasions, Anderson saw Skeffington hand her clients a key through the

bathroom window.

       Anderson testified that Skeffington's bathroom window was closed for a few days.

Anderson found this "very abnormal" because Skeffington, whom she described as very

friendly, tended to use her bathroom window to communicate with Smith, her clients, and

                                            3
others, including neighbors. Anderson also found it "very strange" that Skeffington's car

had been parked in the same location for days because Skeffington was "always running

here or there."

       Witness William Lewis, a sergeant in the United States Marine Corps, testified he

met Skeffington through an internet website about two years before her murder. Because

Skeffington was a prostitute, Lewis knew she was not looking to be in a committed

relationship, although he described his relationship with Skeffington as "a little closer

than friends" and one that was becoming closer. When Lewis met Skeffington, it was

"personal" and not because she was a prostitute. Lewis had a key to Skeffington's

apartment, and he estimated he had been to her apartment about 50 or 60 times, which

included staying the night.

       The last time Lewis saw Skeffington alive was Saturday night, August 25th.

Earlier that day, Lewis had gone to the football game of Skeffington's son, who at the

time was about nine years old and lived with his father, Michael Fowler. After the game,

they went to a hotel near Mission Bay where Skeffington was staying and had dinner.

Lewis left the hotel around 9:00 p.m. and returned to the base.

       Before he left, Lewis and Skeffington argued. Lewis was upset with Skeffington

because she had decided to do her escort business that night when she was supposed to be

taking time off. When Lewis first met Skeffington, she had said her escort business was

only temporary as she was looking for a job. But as time went on, Lewis noted she was

"getting deeper and deeper" into that business and it "started becoming her life," which he

believed was "destroying her." Lewis also was concerned Skeffington was taking "too



                                              4
many risks" in her escort business, including having people in her apartment that she did

not know.

       Lewis did not hear from Skeffington over the next few days, which he found

"weird" because they tended to stay in close contact. On Tuesday August 28, Lewis

began calling Skeffington. In one instance, a person picked up the call and Lewis could

hear music and a woman's voice in the background. Otherwise, all of his calls went

straight into voicemail. Lewis estimated he called Skeffington five or six times. In the

past when he left a voicemail message, she would call him back within a short period of

time. However, this time Skeffington did not return any of Lewis's calls.

       Although Skeffington allegedly disliked text messaging, when Lewis did not hear

back from her he started sending text messages to her phone. Lewis got a response to one

of those messages from Skeffington's phone stating, "in L.A. on business." Lewis was

surprised by this response because he had never known Skeffington to go to Los Angeles

for "anything," much less on business; her response was "cold and direct," which Lewis

said was contrary to her personality; and typically if she had been going out of town, she

would tell Lewis, particularly if she was driving by the base where he lived.

       Lewis became even more concerned about Skeffington after he received a

telephone call from an agency where Skeffington's car had been rented. Lewis also

started receiving "weird messages" from Skeffington's phone, which was "completely out

of character" for her. After Lewis called Skeffington and told her the rental car agency

was going to call the police unless she returned the car, he received a text message back

stating, "What are you talking about?" and "What's going on?" Based on these messages,

Lewis concluded someone other than Skeffington had her phone.

                                             5
       Lewis returned the text messages, finally offering to pay $25 to the person with

the phone. The person agreed and arranged to meet Lewis at a gas station. Around 9:00

or 10:00 p.m. on August 30, Lewis drove from Oceanside to San Diego to meet the

person with Skeffington's phone. Lewis ended up meeting two young women at the gas

station. They told Lewis they found the phone on the trolley.

       Lewis next looked through Skeffington's phone and found the text messages he

had sent and her response that she was in Los Angeles on business. Lewis saw this same

response had been sent to one of Skeffington's close friends. Lewis next drove to

Skeffington's apartment. When he walked up to her apartment door about 11:00 p.m., he

saw candles, a rose and a small teddy bear and realized something had happened to

Skeffington. A neighbor told Lewis that Skeffington had been murdered. Lewis in

response gave Skeffington's cell phone to the neighbor, who called "right then and there"

one of the detective's assigned to the case.

       Witness Kristin Graham testified that Skeffington moved into the apartment

complex about a year and a half before the murder and that they became friends. The last

time Graham saw Skeffington alive was in the morning of either Saturday, August 25th

or Sunday, August 26th.

       After not seeing Skeffington for a few days and noticing her car had not moved

during that time, Graham became concerned and sent Skeffington a text message about

8:00 p.m. on Monday, August 27 asking Skeffington if she was "around" and "wanted to

get together for a little while." About 20 minutes later, Graham received a response from

Skeffington's phone stating, "in L.A. on business."



                                               6
       A few days after the murder, Lewis came to Graham's door asking about

Skeffington. When Lewis learned what had happened, he gave Skeffington's phone to

Graham, who in turn gave the phone to detectives.

       Witness Tanea Fowler testified she was with Skeffington about 4:00 p.m. on

Sunday, August 26. Skeffington picked up Tanea and her brother—Skeffington's son—

and took them along with a few other people to the park near Tanea's dad's house. They

stayed at the park for about 20 minutes. When Tanea got home, she remembered she had

left a picture in the trunk of Skeffington's car. Around 4:30 p.m., Tanea called

Skeffington asking about the picture. Skeffington stated she would drop off the picture,

but never did. After sending Skeffington a text message, Tanea later received a response

from Skeffington's phone stating, "in L.A. on business."

       San Diego Police Officer Richard Page testified he got a call from dispatch about

5:00 p.m. on Tuesday, August 28 to conduct a welfare check at Skeffington's apartment.

When he and his partner arrived, they were met by Smith and Bell. Officer Page found

the front door unlocked. When they walked inside the apartment, everything at first

seemed "completely normal" as the apartment appeared "neat and tidy" and nothing

seemed "out of place." However, the bathroom door was locked. When Officer Page

opened that door, he immediately detected the smell of a decaying body. He next pulled

back the shower curtain and saw a partially-submerged body in the bathtub. When

Officer Page went into the bedroom, he saw a large, oval-shaped dark brown stain on the

bed and similarly-colored stains on the pillow and mattress.

       San Diego Police Homicide Detective Michelle Velovich testified she responded

to Skeffington's apartment about 6:00 p.m. on Tuesday, August 28. Detective Velovich

                                             7
initially searched the trash cans outside the apartment and found what appeared to be

bloody blankets and sheets inside a trash bag. During processing, the police also found in

the trash bag a woman's blood-soaked blouse, with at least two tear or cut marks near the

neck area, and a handheld lighter. The police also found a lone glove in another of the

garbage cans and a broken acrylic fingernail in the alley that ultimately was found to

match one of the victim's missing fingernails.

       Detective Velovich testified they spent more than 15 hours inside the apartment

collecting evidence. Inside the kitchen, they found multiple cabinets open and, on closer

inspection, smudges that appeared to be blood on the exterior of the cabinets near the

handles. Several knives were found soaking in the kitchen sink. Detectives also

identified apparent blood smears on the front of the stove and on a light switch inside the

kitchen.

       Inside the living room near the kitchen, Detective Velovich found a trash can with

its interior lining missing. Inside the trash can was an empty bottle of a spray cleaner.

Detective Velovich surmised the trash bag she had found in one of the trash cans outside

the apartment was the missing liner. In the living room, detectives found a "glass item"

on the entertainment center that appeared to have drug residue, a cup with lipstick on a

straw inside the cup, wine glasses, a "mini scan disk" on the floor, a shirt with blood

stains and a box of latex gloves.

       In the bedroom, detectives found several items that appeared to have been dumped

in the center of the bed. The sheets to the bed had been pulled off and there were blood

stains on the mattress. The pillow cases were missing. On the bed, they found a pair of

women's jean shorts "turned inside out," which caught Detective Velovich's attention.

                                             8
Also on the bed, detectives found what appeared to be two shoe prints made with blood.

Given the amount of blood on the bed, Detective Velovich surmised Skeffington was

killed on the bed and her body moved into the bathroom.

       After the medical examiner removed the body from the bathtub, detectives saw

Skeffington had two black eyes; her nose and mouth appeared to have sustained severe

trauma; and she had stab wounds around her neck and on the front part of her face, near

her right eye. In the bathroom, the police found blood stains in the sink area and on the

underside bowl of the toilet.

       The police returned to the apartment two days later to conduct what Detective

Velovich referred to as "luminol" testing. Under this procedure, a surface is sprayed and

blood stains not visible to the naked eye are fluoresced. Detective Velovich noted this

process can detect the presence of blood even after a "clean-up effort." The luminol

testing showed blood spatter on black furniture and a wall located inside the bedroom and

on a cabinet against the wall leading into the hallway. The results of the luminol testing

suggested someone had attempted to clean up the bedroom after the murder. From the

blood spatter evidence, Detective Velovich determined Skeffington had been stabbed

multiple times, and then bled out, on the bed.

       Detective Velovich obtained Skeffington's phone and downloaded information

from it. Detective Velovich noted there were no text messages on the phone earlier than

Monday, August 27.

       Medical Examiner Craig Nelson M.D. testified Skeffington's injuries included stab

wounds on the right and left side of her neck; two black eyes; a broken nose with

lacerations; bruising on her mouth and lower lip; deep incised wounds to her forehead

                                             9
consistent with "sharp force injuries"; cuts or incised wounds to her neck; bruises on her

back; and a number of small bruises on her arms and legs. Toxicology tests showed the

presence of cocaine and morphine in Skeffington's body at the time of the murder.

Although there was no evidence of sexual assault, Dr. Nelson noted that such evidence,

including sperm, can be washed away when a body is submerged in water.

       Dr. Nelson determined that Skeffington died of sharp force injuries of the head

and neck. Dr. Nelson noted the stab wound to the left side of Skeffington's neck cut her

left internal jugular vein and left internal carotid artery, which resulted in a lot of

bleeding. Dr. Nelson opined that Skeffington likely died within minutes from the time

her neck was incised.

       Dr. Nelson further opined that Skeffington likely had been dead a minimum of a

day and probably closer to two from when he first went to the apartment in the early

morning of Wednesday, August 29. However, he noted it was hard to pin down the

"exact hour" of death because Skeffington had lost most if not all of her blood and

because her body had been submerged in the bathtub.

       Dr. Nelson determined Skeffington was alive when she sustained blunt force

trauma to her face, inasmuch as she bled around the eyes leading to the two black eyes.

During the autopsy, Dr. Nelson also found no fluid in Skeffington's lungs, which he noted

was consistent with the victim being placed in the bathtub either after she was dead or

when she was unconscious.

       Based on interviews, it appeared Tanea Fowler was the last witness to see

Skeffington alive, as they had gone to the park in the afternoon on Sunday, August 26.

Using this information, detectives obtained a search warrant for Skeffington's cell phone

                                               10
records between August 26 and August 31, 2012. Detectives next began calling numbers

from those records that they otherwise could not identify. One such number they

called—the last four digits being 2004—was Shaw's number. Shaw answered the phone

call and, after detectives explained why they were calling, agreed to an interview.

       San Diego Police Detective Timothy Norris testified he reviewed the cell phone

records from Skeffington's phone. Detective Norris noticed a call from the 2004 number

was made on Sunday, August 26 at 3:04 p.m. That call lasted 65 seconds. Detective

Norris noticed there were two other calls from this same number made closely thereafter,

with one of the calls going to voicemail.

       Detective Norris found the following additional communications between

Skeffington's phone and the 2004 number on that same day: a text message was sent at

5:06 p.m. from the 2004 number; a call was made at 6:42 p.m. from the victim's phone

that lasted 65 seconds; a call was made at 9:43 p.m. from the 2004 number that lasted two

seconds; a call was made from the 2004 number at 10:01 p.m.; a text message was sent at

10:02 p.m. from the victim's phone; a text message was sent at 10:05 p.m. from the 2004

number; a text message was sent at 10:06 p.m. from the victim's phone; a text message

was sent at 10:07 p.m. from the 2004 number; a call was made at 10:09 p.m. from the

2004 number that lasted 52 seconds; a text message was sent at 10:13 p.m. from the 2004

number; a text message was sent at 10:23 p.m. from the victim's phone; a text message

was sent at 10:24 p.m. from the 2004 number; a text message was sent at 10:25 p.m. from

the victim's phone; a text message was sent at 10:26 p.m. from the 2004 number; a text

message was sent 40 seconds later from the victim's phone; a text message was sent at

10:28 p.m. from the 2004 number; a text message was sent at 11:35 p.m. from the 2004

                                            11
number; a text message was sent at 11:40 p.m. from the victim's phone; a text message

was sent at 11:44 p.m. from the victim's phone; a text message was sent at 11:45 p.m.

from the 2004 number; a call was made at 11:49 p.m. from the 2004 number that lasted

two seconds and went into voicemail; a text message was sent at 12:13 a.m. on Monday,

August 27 from the 2004 number; and finally, a text message was sent at 12:19 a.m. from

the victim's phone.

       Detective Norris found the "pattern" of outgoing calls from the victim's phone

changed noticeably beginning at 12:25 a.m. on Monday, August 27. After 12:25 a.m.,

the phone records showed that for the next 12 hours or so, virtually all of the calls to the

victim's phone were routed to voicemail. In addition, the records showed that no

outgoing calls or texts were made during that same time period; that there was one call at

10:39 a.m. on August 27 from the 2004 number to the victim's phone, which call went

into voicemail and lasted nine seconds; that when outbound calls resumed, the frequency

of such was nowhere near the frequency at or near midnight on August 27; and that most

of the activity thereafter involving the victim's phone was inbound calls.

       The October 3, 2012 police interview of Shaw was recorded and played for the

jury.2 Shaw told detectives that he first met Skeffington in July or August at a football

field either on a Tuesday or Thursday; that he knew her as "Tabby"; and that he "texted"

with her. Shaw was at the field because he has a little cousin who plays football. Shaw

was smoking marijuana at the field when a guy named "Mark" walked past and told



2      The parties stipulated to admit into evidence the audio recording of Shaw's
October 3, 2012 interview, a video recording of his December 20, 2012 interview and an
audio recording of the December 27, 2012 jailhouse call between Shaw and his wife.
                                             12
Shaw that Skeffington was a "porn star." Shaw ended up talking to Skeffington and

although they were supposed to "hook up" later that night, they ended up not doing so

because Shaw was busy.

       Shaw told detectives he next called Skeffington the following weekend, when he

was off work. Shaw said he had a "little crystal" on him, and he and Skeffington

discussed trading the drug for "a little head or whatever." On questioning, Shaw admitted

going to an alley to meet Skeffington between 10:00 p.m. to 12:00 a.m. on either a

Saturday or Sunday night. Shaw told detectives he texted Skeffington and waited in the

alley about five minutes and then left because she did not respond to his text message.

When asked if he ever went inside her apartment, Shaw said "No," and then said, "The

closest I went was to the alley and she never, she didn't come out to the alley fast enough

for me; so I left." At that time, Shaw denied having any sexual contact with Skeffington.

At the conclusion of the interview, detectives obtained a DNA sample from Shaw.

       San Diego Police Department Information Analyst Peter Villaver reviewed the call

records subpoenaed from Skeffington's cell phone provider. Using the call detail from

such records, Villaver determined among other information the "time stamps, the

duration of the call and the servicing cell sites" for each call. This information, in turn,

allowed him to track the general location of the victim's phone between certain dates and

times. Villaver subsequently conducted a similar analysis on Shaw's phone records.

       Based on the call detail, including in particular the cell sites activated, Villaver

concluded that Shaw's cell phone was in the area of Skeffington's apartment from 10:08

p.m. on August 26 through 12:08 a.m. on August 27; that it was "highly unlikely" during

this time period that Shaw's phone was at his home in the 3800 block of Ocean View

                                              13
Boulevard; and that after 12:08 a.m., the "activations" from both the victim's and Shaw's

phones showed the phones moved in a southerly direction from near where the victim

lived to near where Shaw lived. Villaver noted that about 6:00 p.m. on August 27, both

the victim's and Shaw's phones activated cell towers in the same area as the 47th Street

trolley station.

       San Diego Police Department Criminalist David Cornacchia testified regarding the

DNA findings in this case. Because Cornacchia found a large amount of female DNA

from Skeffington and a small amount of male DNA on some of the crime scene swabs, he

used an alternate DNA testing method known as Y-STR testing on some of the samples.

He opined that using the Y-STR testing method worked well in this case because the

victim's DNA was ignored and that allowed him to obtain a DNA profile specific to

males, inasmuch as only males carry the Y chromosome.

       After what he described as the "quantitation step," Cornacchia used the Y-STR

testing method on one of the swabs taken from the kitchen cabinets and on one taken

from the mattress in the victim's bedroom. Cornacchia found the DNA from both swabs

came from the same "male lineage." At the time of this testing, Cornacchia did not yet

have a reference sample that matched the male DNA.

       Cornacchia next tested swabs from the bathtub knob and drain stop. Again, he

found the mixture of the victim's DNA to the male DNA required him to use the Y-STR

testing method because Cornacchia knew from the quantitation step there was male DNA

present. This time, Cornacchia found DNA from more than one male, although there was

a single major male contributor on that swab. Further analysis showed the male DNA



                                            14
from the mattress and the kitchen cabinet matched the male DNA from the single major

contributor on the bathroom knob and drain stop.

       In about mid-October 2012, Cornacchia obtained a DNA reference sample taken

from Shaw. Cornacchia then created two profiles using Shaw's DNA, one using

conventional testing and one using the Y-STR method.

       On one of the swabs taken from the kitchen cabinet, Cornacchia was able to use

conventional DNA testing. He determined Shaw was a "possible minor contributor,"

noting the odds of someone other than Shaw being the contributor was 1 in 9.2 million.

Cornacchia also used the Y-STR method to test that same sample and found the "Y-DNA

profile" from it and Shaw was "consistent with coming from the same male lineage."

Cornacchia explained his results as follows:

       "I talked before about how you get half of all your DNA from your mom, and you

get half of all your DNA from your father. So in a sense, you don't match either mom or

dad. You are a composite of the two of them. [¶] Now, the way Y-STR's are inherited

are slightly different because fathers pass them on to sons in their entirety. So a father

and son have exactly the same Y-STR types, and therefore within a male lineage we're

talking fathers, sons, grandfathers, great-grandfathers, as far back as you can think. The

same Y chromosome is being passed. [¶] So that's why I can only put individuals in

terms of they're in -- appear to be in the same male lineage or they are not in the same

male lineage. I can't get more specific than that because obviously entire families of men

are going to have the exact same Y-DNA types."

       Cornacchia found the odds were 1 in 7,874 that a person with the same male

lineage as Shaw was not the contributor on this particular swab taken from the kitchen

                                             15
cabinet. Cornacchia explained the Y-STR numbers are usually "much lower" than the

numbers for conventional DNA testing because of how the Y chromosome is inherited

from father to son, generation after generation.

       Cornacchia next compared the swab from the mattress to the reference sample

taken from Shaw and determined Shaw "was included as the possible source of the male

DNA type," with the odds it was a coincidental match being 1 in 3,846. Cornacchia also

compared the swab taken from the bathtub knob and drain stop with the reference sample

and found Shaw also was included as the possible source of the male DNA type, with the

odds it was a coincidental match being 1 in 7,874.

       After Cornacchia's initial results showed Shaw could not be excluded on samples

taken from the kitchen cabinets, the mattress and the bathroom, he conducted additional

DNA testing. Cornacchia analyzed a swab taken from another kitchen cabinet. Because

there was much more female DNA than male DNA on this swab, Cornacchia again used

the Y-STR testing method. He obtained a Y-STR profile from a single male and

determined Shaw again was included as the possible source of that profile, with the odds

it was a coincidental match being 1 in 8,621. Cornacchia also tested a swab taken from

the oven door using the Y-STR testing method. Cornacchia obtained a DNA profile from

a single male and found Shaw was included as the possible source of that male profile,

with the odds that it was a coincidental match again being 1 in 8,621.

       Based on the fact Shaw was found to be a possible source of DNA from six

samples obtained from various locations in the apartment, including the kitchen, bedroom

and bathroom, Cornacchia opined the source of this DNA was consistent with "primary

transfer," as opposed to "secondary transfer." Cornacchia explained "secondary transfer"

                                            16
was when DNA moves from one location to another by a mechanism other than direct

"touching."

       Out of all the DNA testing performed, Cornacchia found only one sample

containing DNA matching Marquis Veal, Shaw's cousin from his mother's side, which

Cornacchia found on a shot glass located inside the apartment. Cornacchia noted Veal

and Shaw did not share the same male lineage and thus, did not share the same Y-STR

profile. Cornacchia also found only one DNA sample matching Lewis, which sample

was taken from the toilet seat.

       The police initially arrested Shaw for a parole violation on December 20, 2012.

At the time of his arrest, the police collected four pairs of shoes from Shaw's bedroom to

determine whether any of his shoe bottoms matched the pattern found on the blood-

stained sheets from Skeffington's bed. After being read his Miranda3 rights, Shaw

expressly agreed to be interviewed regarding Skeffington's murder, which interview was

played for the jury.

       Shaw told detectives during the December 20 interview that he first met

Skeffington at a field where her son played football; that they spoke for about five or 10

minutes; and that Shaw initially asked Skeffington on a date after an individual named

"Mark" told Shaw what Skeffington did for a living. According to Shaw, Skeffington

refused to go out on a date, stating she had no social life. Shaw described Skeffington as

being "straight-forward" about what she did for a living and told detectives Skeffington

was "straight business."



3      Miranda v. Arizona (1966) 384 U.S. 436.
                                            17
       Shaw told detectives the following Sunday he called Skeffington during the day

and told her he wanted some "services." When Shaw told Skeffington he was unable to

come to her apartment right then, Skeffington told Shaw to call back when he was ready

and promptly hung up the phone "in [his] face." According to Shaw, Skeffington then

was straight to the point, wanted money and was "serious about her money." On further

questioning, Shaw reiterated to detectives that Skeffington was all about the money.

       Shaw told detectives that later that night, Shaw text messaged Skeffington "a few

times," and she messaged him back. At some point, Shaw went to an alley near where

Skeffington lived. After waiting about five minutes, Shaw told detectives he became

impatient. He thus text messaged Skeffington he was "gone" and left.

       Shaw told detectives that he had about $50 of "meth" on him when he went to the

alley that night to meet Skeffington; that someone had given him the drug; and that he did

not use methamphetamine but instead smoked marijuana. Shaw said he was smoking

marijuana while he waited in the alley for Skeffington. After Shaw left, he told

detectives he called Skeffington about 45 minutes later to ask her "what's goin['] on."

When Skeffington did not answer her phone, Shaw hung up without leaving a voicemail

message.

       Shaw told detectives Skeffington was unaware that Shaw intended to use drugs

and not money to pay for her services. However, Shaw had heard from "Mark" that

Skeffington used "meth." Although he had money, Shaw told the detectives he "wasn't

really tryin' to pay her in money." Shaw admitted in the past he had hired prostitutes, but

claimed he had never paid for sex.

       The record shows Detective Velovich and Shaw next had the following exchange:

                                            18
       "[Detective]: Okay. Um, and so, uh, I just wanna know if there's any way your

DNA could be inside that house?

       "[Shaw]: No.

       "[Detective]: None?

       "[Shaw]: No. Never been in there. Eh-mmm.

       "[Detective]: Are you curious as to why I would even ask you that?

       "[Shaw]: Yes.

       "[Detective]: Okay. Because I have some information that is -- I'm believing it's

your DNA in there.

       "[Shaw]: Mm-hmm? Nah, my DNA couldn't be in there.

       "[Detective]: It couldn't?

       "[Shaw]: No."

       The record shows throughout the December 20 interview, Shaw continued to deny

ever being in Skeffington's apartment. He also denied having any sexual contact with her

at any time and denied taking her phone. Instead, Shaw told detectives he went home

after he left the alley. When detectives confronted him with the cell phone evidence

showing he was near Skeffington's apartment for more than five minutes, Shaw changed

his story somewhat and told detectives that he got back into his car and smoked a "joint"

and that, after he smoked it, he then rolled another marijuana cigarette because he

smoked "weed a lot."

       San Diego Police Department Criminalist Tanya DuLaney testified she was asked

to compare shoes, including a pair of black Adidas, taken from Shaw's bedroom with the

shoeprint evidence found on the blood-stained sheet from Skeffington's bed. DuLaney

                                            19
found a "chevron" or "V" pattern pointing upwards on the sheet. DuLaney next made

"test impressions" from the shoes and compared those impressions to the shoeprint

evidence.

        Based on the size, the shape and the general sole pattern, DuLaney concluded

Shaw's black Adidas shoes had a chevron design matching the designs on the sheet.

DuLaney also concluded the black Adidas shoes were the "exact same size"—men's

10.5—as the shoeprint on the sheet. No blood evidence was found on Shaw's shoes.

        About a week after his arrest, Shaw called his wife, Donneshia Allen-Shaw, from

jail. During the call, which was recorded and played for the jury, Shaw told his wife he

had told his grandma to get " 'all my clothes and my shoes, can you–can you please get

'em up in–in even. . . [.]' " (Italics added.) Allen-Shaw in response stated that she had

been at Shaw's grandma's house until midnight the night before and that Shaw's grandma

"just did this last night." She also told Shaw she took a pair of his new black "Mecca

shoes" from the closet after her "house shoes ripped."

        When Shaw next asked his wife about his "other black" shoes, the following

exchange took place:

        "[Allen-Shaw]: I think the police might of took them.

        "[Shaw]: Hmm. You know which ones I'm talking about?

        "[Allen-Shaw]: Yeah. I know exactly what you're talking about. They look like

mine.

        "[Shaw]: Yeah.




                                             20
       "[Allen-Shaw]: But remember I told you they took all yours Adid – the ones that

look like Adidas. So I think those ones are Adidas. So I'm assuming that's one of the

ones they took."

       B. Defense Evidence

       Witness Roger Spahn testified at the time of the murder he lived in the same

apartment building as Skeffington, where he had lived for 44 years. On the night of

Sunday, August 26, Spahn testified he decided to reset the clock on his car radio.

Although he did not know how to reset the clock, he decided if he unhooked and

reconnected his car battery near midnight the clock would automatically reset to 12:00.

Thus, a few minutes before midnight Spahn went to his car parked outside the apartment

complex and unhooked the car battery. He found, however, the clock radio reset to 1:00

a.m. Spahn thus waited in his car about an hour to unhook and reconnect his battery.

       Sometime between 12:00 and 1:00 a.m., Spahn heard someone walking from what

appeared to be the courtyard of the apartment complex toward the street. When he

"briefly" looked up and saw this person, he "assumed" it was Skeffington based on the

direction the person was walking. Spahn estimated he saw this person for about three

seconds. Spahn stated there was a "noise" to this person's walk, which he described as

the sound made by "flip-flops."

       Witness Marquis Veal (Shaw's cousin) testified his son and Skeffington's son

played on the same football team. Veal met Skeffington in 2011. Veal knew what

Skeffington did for a living because at one point she had passed out "business cards" to a

few of the male parents that stated she was an "escort." Veal described Skeffington as a

"faithful parent" who participated in fundraising activities for her son's football team.

                                             21
Veal said he went to Skeffington's apartment for a fundraiser about once a week. He

denied ever using Skeffington's services, however.

       Veal testified he told Shaw to come to the games and practices because there were

a lot of women who attended. Toward the end of July 2012, Shaw came to a practice and

Veal introduced him to Skeffington. Toward the end of July or the early part of August,

2012, Veal picked up Shaw and together they went to Skeffington's apartment. While

there, they had a "couple shots" and then Veal left for about 30 minutes. During the 20

minutes or so while Veal was at the apartment, the conversation between Shaw and

Skeffington led Veal to "believe that something was going to occur," which is why Veal

left. According to Veal, that was the only time he took Shaw to Skeffington's apartment.

Veal became concerned about Skeffington when she missed several of her son's football

practices.

       Shaw testified in his own defense. He knew Skeffington as "Tabby," and they met

on July 27, 2012, when football practice for his cousin and her son began. Shaw went to

the practice because Veal had told him there were a lot of women there. Shaw heard

Skeffington was a former "porn star," which "caught [his] interest," but he did not then

realize she was a prostitute. Thus, Shaw asked Skeffington out on a date. Skeffington

refused, telling Shaw she was "always busy" and had "absolutely no social life."

       A few days later, Veal called Shaw and said he had to make "a run." Shaw did not

realize they were headed over to Skeffington's apartment. Once inside, Shaw went into

the kitchen and got shot glasses at Skeffington's request. According to Shaw, they all

drank wine and had a good time. Shaw also smoked marijuana. When Shaw offered

Skeffington marijuana, she declined, telling Shaw she "only [did] white."

                                            22
       Shaw determined Skeffington liked him "a little bit" as they were flirting with

each other as they became intoxicated. At Shaw's request, Veal left the apartment. Next,

Shaw and Skeffington went into her bedroom and she orally copulated him. They then

had sexual intercourse. Shaw testified he was not expecting to have sexual intercourse

with Skeffington, but he "didn't fight it." Afterwards, Shaw went into the bathroom,

removed the condom Skeffington had placed on him and washed his hands. Before he

left, Skeffington told Shaw that next time "it's going to cost you."

       Shaw testified he called Skeffington either in the morning or afternoon of August

26, 2012. The day before, Shaw had obtained some "crystal" from one of his

"homeboys" that he wanted to trade or sell. Shaw remembered Skeffington was into

"white" and thus he contacted her on August 26 and asked if she knew anyone that would

be willing to trade marijuana for methamphetamine. Skeffington in response told Shaw

that she did not "mess around" with methamphetamine, but that she nonetheless would be

willing to trade him a little marijuana and oral sex for the drug. When Shaw declined to

go to Skeffington's apartment right then, Skeffington became frustrated, told Shaw to call

back when he was ready and hung up the phone.

       Later that same day, Shaw text messaged and/or called Skeffington for her

address. According to Shaw, Skeffington gave him the wrong address. Shaw

remembered the alley, however, from his prior visit to the apartment with Veal. About

midnight, Shaw text messaged Skeffington that he was waiting for her in the alley. After

not responding initially, Skeffington text messaged Shaw she would be "out in a few."

Shaw became impatient after a police car drove past him. Shaw thus text messaged

Skeffington he was leaving. He testified he went back to his car and drove home.

                                             23
       Shaw admitted he lied during his prior interviews with detectives. Shaw testified

he lied about being with Skeffington because she was a prostitute. He did so in order to

protect his image and the image of his grandparents, inasmuch as his grandfather had

been a respected pastor, his grandmother was "well known in the churches," and Shaw

played the piano for his church. Shaw testified he also lied because he did not want his

wife to know he had been with a prostitute. Shaw also decided not to tell police that

Veal, who it turns out was "Mark" from the practice field, had introduced him to

Skeffington because he did not want the police to bother Veal.

       Shaw explained that he did not tell police he had been inside Skeffington's

apartment before the murder because he did not believe his "DNA was still at the lady's

house when [he] was there three and a half to four weeks [before]," and thus he was

"confident [his] DNA wasn't still over there." Shaw testified the truth needed to be told,

however.

       Shaw's intent when he went to Skeffington's apartment on the night of August 26

was to exchange methamphetamine for marijuana and to obtain oral sex from

Skeffington. Shaw testified he did not use methamphetamine, and he did not want that

drug in his grandmother's house, where he was then living.

       With respect to the recorded jailhouse call regarding his shoes, Shaw testified

when he asked his wife what shoes did "they" take," the "they" he was referring to was

his family and not the police because his mother and brother often wore his clothes.

       Shaw explained the reason phone records showed him in the area of Skeffington's

apartment for about two hours on the night of August 26. Shaw stated after he left the

alley he went back to his car, smoked marijuana, and fell asleep. According to Shaw, he

                                            24
was often tired because of a sleep apnea condition. Shaw claimed he previously told

detectives about this condition.

                                       DISCUSSION

       A. Sufficiency of the Evidence to Support Finding Shaw Killed Skeffington

       1. Guiding Principles

       "To assess the evidence's sufficiency, we review the whole record to determine

whether any rational trier of fact could have found the essential elements of the crime or

special circumstances beyond a reasonable doubt." (People v. Zamudio (2008) 43 Cal.4th

327, 357 (Zamudio).) "The record must disclose substantial evidence to support the

verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a

reasonable trier of fact could find the defendant guilty beyond a reasonable doubt."

(Ibid.) "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 jury

could reasonably have deduced from the evidence." (Ibid.) We do not resolve credibility

issues or evidentiary conflicts. (Ibid.) We accept logical inferences the jury might have

drawn from circumstantial evidence and affirm where "the circumstances reasonably

justify the trier of fact's findings" (id. at p. 358), even if we conclude "the circumstances

might also reasonably be reconciled with a contrary finding" (ibid.).

       "The standard of appellate review is the same in cases in which the People rely

primarily on circumstantial evidence. [Citation.] Although it is the duty of the jury to

acquit a defendant if it finds that circumstantial evidence is susceptible of two

interpretations, one of which suggests guilt and the other innocence [citations], it is the

jury, not the appellate court which must be convinced of the defendant's guilt beyond a

                                              25
reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the

opinion of the reviewing court that the circumstances might also be reasonably

reconciled with a contrary finding does not warrant a reversal of the judgment." '

[Citations.] 'Circumstantial evidence may be sufficient to connect a defendant with the

crime and to prove his guilt beyond a reasonable doubt.' [Citation.]" (People v. Bean

(1988) 46 Cal.3d 919, 932-933, italics added (Bean).)

       2. Analysis

       In the instant case, the key issue at trial was the identity of the murderer. As to

that issue, we conclude there is no question that on this record a reasonable jury could

find the evidence established beyond a reasonable doubt that Shaw killed Skeffington.

Although Shaw attempted to explain why cell phone records placed him at or near

Skeffington's apartment for about two hours on the night of August 26; or why his DNA

was found in the kitchen, the bathroom and in the bedroom of Skeffington's apartment; or

why he repeatedly lied to the police about ever being inside the apartment and about

many other details including who had introduced him to Skeffington, how long he was at

or near the apartment on the night of August 26 and what he was doing during the two-

hour time period he was there, the jury clearly did not believe him—as was its right. (See

People v. Smith (2005) 37 Cal.4th 733, 739 [a court of review is bound to accept the

factual and credibility determinations of the trier of fact if supported by substantial

evidence].) The cell phone evidence, the DNA evidence and the shoeprint evidence all

point to Shaw as being in the apartment on the night of August 26 and as being the

murderer.



                                              26
       Indeed, as we have summarized in great detail ante, the cell phone evidence shows

that there were myriad calls and/or text messages between Shaw's and Skeffington's

phones on Sunday, August 26; that Shaw's cell phone was in the area of the Skeffington's

apartment from 10:08 p.m. on August 26 through 12:08 a.m. on August 27; that after

12:08 a.m., the "activations" of Skeffington's and Shaw's phones showed both phones

moved in a southerly direction from near where the victim lived to an area near where

Shaw lived; that for the next 12 hours or so all of the calls to Skeffington's phone went

directly into voicemail; that about 6:00 p.m. on August 27, both Skeffington's and Shaw's

phones activated cell towers in the same area as the 47th Street trolley station; and that

Skeffington's phone was subsequently found on a trolley.

       Although Shaw contends the cell phone evidence was insufficient because among

other reasons it was not based on GPS technology but was instead based on cell site

activation records, we nonetheless conclude the cell phone evidence, and the reasonable

inferences to be drawn from it—when considered in light of the other evidence (i.e.,

DNA)—is sufficient to justify the jury's findings that Shaw did in fact enter Skeffington's

apartment on the night of August 26, despite his testimony otherwise, and that once

inside he murdered Skeffington. (See Bean, supra, 46 Cal.3d at p. 933 [noting " ' "[i]f the

circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing

court that the circumstances might also be reasonably reconciled with a contrary finding

does not warrant a reversal of the judgment" ' "].) Indeed, it was reasonable for a jury to

infer that if Shaw waited outside Skeffington's apartment for two hours on the night of

August 26, he would not have left after merely waiting for her in the alley for about five

minutes, as he later testified.

                                             27
       As also summarized in detail ante, DNA consistent with Shaw's was found in six

locations in the apartment, including in key areas tied to the murder. While several of the

samples predominately consisted of the victim's own DNA, conventional DNA testing

nonetheless indicated that Shaw was a possible minor contributor of the sample taken

from one of the kitchen cabinets and that the odds of a coincidental match on this

particular sample was 1 in 9.2 million. Again, although Shaw attempted to explain the

presence of his DNA in the apartment based on his visit to the apartment three or four

weeks earlier, it was reasonable for the jury to infer under the circumstances that Shaw

left his DNA in the apartment on the night of August 26, the last day anyone saw

Skeffington alive. (See Bean, supra, 46 Cal.3d at p. 933.)

       In addition, Y-STR testing showed Shaw was the possible source of male DNA on

swabs taken from the mattress, where Skeffington was murdered; from the bathtub knob

and drain stop of the bathtub, where Skeffington's body was dumped after she was

stabbed and her throat was slashed; and from the oven door and two other kitchen

cabinets. The DNA samples from the kitchen were significant in light of the evidence

that Skeffington was stabbed with a knife, that detectives found knives soaking in the

kitchen sink, and that the murderer left several kitchen cabinets open, ostensibly while

looking for a cleaning solution (later discovered by detectives in the trash can near the

kitchen) after the murder. The odds of a "coincidental match" were 1 in 3,846 for the

mattress; 1 in 7,874 for the bathtub knob and drain stop; and 1 in 8,621 for both the oven

door and the two other kitchen cabinets. This evidence also supports the jury's finding

that Shaw was in Skeffington's apartment on the night of August 26 and that he murdered

her. (See Bean, supra, 46 Cal.3d at p. 933.)

                                             28
       Finally, the shoeprint evidence also supports the finding that Shaw was the

murderer. The size, shape and general sole pattern of the shoeprints found on

Skeffington's blood-soaked sheet were consistent with having been made by Shaw's black

Adidas shoes. Although Shaw explained to the jury his intent when he spoke to his wife

on December 27 regarding whether his grandmother had gotten his clothes and shoes and

"put 'em up," including a pair of black Adidas shoes, a reasonable jury also could find

that Shaw was inquiring about the black Adidas shoes because he had worn them on the

night of the murder.

       Considered in the light most favorable to the judgment, we conclude there is

substantial evidence—including the reasonable inferences to be drawn from such

evidence (see Zamudio, supra, 43 Cal.4th at p. 357 [noting a reviewing court accepts

logical inferences the jury might have drawn from circumstantial evidence])—justifying

the jury's finding that Shaw went into Skeffington's apartment on the night of August 26

and killed Skeffington.

       B. Sufficiency of the Evidence and Premeditation and Deliberation

       Shaw next contends the evidence was insufficient as a matter of law to support a

first degree murder conviction under a premeditation and deliberation theory.

       1. Guiding Principles

       " 'In reviewing the sufficiency of evidence . . . , the question we ask 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." '

[Citations.] . . . 'In determining whether a reasonable trier of fact could have found

defendant guilty beyond a reasonable doubt, the appellate court "must . . . presume in

                                             29
support of the judgment the existence of every fact the trier could reasonably deduce

from the evidence." ' [Citation.] The same standard also applies in cases in which the

prosecution relies primarily on circumstantial evidence. [Citation.]" (People v. Young

(2005) 34 Cal.4th 1149, 1175.) "Before a trial court's judgment may be set aside for

insufficiency of evidence to support the verdict, it must clearly appear that on no

hypothesis whatever is there sufficient evidence to support it." (People v. Russell (2010)

187 Cal.App.4th 981, 992.)

       The reviewing court does not reweigh the evidence, evaluate the credibility of

witnesses, or decide factual conflicts. (People v. Culver (1973) 10 Cal.3d 542, 548.)

Thus, although "mere speculation cannot support a conviction" (People v. Marshall

(1997) 15 Cal.4th 1, 35), a finding that "the circumstances also might reasonably be

reconciled with a contrary finding would not warrant reversal of the judgment" (People v.

Proctor (1992) 4 Cal.4th 499, 528-529).

       Penal Code section 189 defines first degree murder as "[a]ll murder which is

perpetrated by . . . any other kind of willful, deliberate, and premeditated killing . . . ."

First degree murder requires evidence of deliberation, defined as a " 'careful weighing of

considerations in forming a course of action; "premeditation" means thought over in

advance. [Citations.]' [Citation.]" (People v. Solomon (2010) 49 Cal.4th 792, 812.)

However, deliberation and premeditation " ' "can occur in a brief interval." ' " (Ibid.)

"The test is not time, but reflection." (People v. Bloyd (1987) 43 Cal.3d 333, 348.)

       " ' "Generally, there are three categories of evidence that are sufficient to sustain a

premeditated and deliberate murder: evidence of planning, motive, and method.

[Citations.] . . . But these categories of evidence, borrowed from People v. Anderson

                                               30
(1968) 70 Cal.2d 15, 26-27, 'are descriptive, not normative.' [Citation.] They are simply

an 'aid [for] reviewing courts in assessing whether the evidence is supportive of an

inference that the killing was the result of preexisting reflection and weighing of

considerations rather than mere unconsidered or rash impulse.' [Citation.]" [Citation.]'

[Citation.] These three categories are merely a framework for appellate review; they

need not be present in some special combination or afforded special weight, nor are they

exhaustive. [Citation.]" (People v. Booker (2011) 51 Cal.4th 141, 173.)

       2. Analysis

       Here, we conclude there is substantial evidence in the record to show Skeffington's

murder was premeditated and deliberate. Turning first to motive, Shaw admitted he went

to Skeffington's apartment on the night of August 26 to trade methamphetamine, which

he valued between $50 and $80, for marijuana and oral sex. Shaw told detectives during

the December 20 interview that, when he went to Skeffington's apartment on August 26,

he had not told Skeffington beforehand that he intended to use drugs and not money to

pay for her services.

       However, the December 20 interview with detectives shows that Shaw was keenly

aware that Skeffington was, in Shaw's words, "straight business," was "serious about her

money" and was all about the money. In addition, Shaw testified Skeffington did not use

methamphetamine, although he testified it (allegedly) was her idea to trade marijuana and

oral sex for methamphetamine. The jury also heard expert testimony that cocaine and

morphine, but not methamphetamine, were found in Skeffington's system when she was

murdered. And there was testimony from Shaw that when he and Veal went to

Skeffington's apartment about three or four weeks before the murder, Shaw had offered

                                             31
Skeffington marijuana and she had refused, telling Shaw she "only [did] white." (Italics

added.) The jury also heard Shaw testify that, after his previous sexual encounter with

Skeffington, she told Shaw the next time it was "going to cost [him]."

       In our view, this evidence—when considered in light of the other evidence

including that Skeffington was attacked while on her bed, that she was found completely

nude and that Shaw had waited outside her apartment for two hours on the night of

August 26—supports an inference that Shaw did not leave after waiting for Skeffington

for about five minutes in the alley outside her apartment, as he testified; that Shaw

instead went inside her apartment; and that once inside, he became angry and killed

Skeffington in her bedroom, on the bed, after she refused to accept methamphetamine—a

drug she did not use—in lieu of money as payment for her services.

       There is also evidence in the record to support a finding that Shaw, however

briefly, planned the murder. The record shows that Skeffington sustained severe trauma

to her nose and mouth likely from blunt force trauma; that she was still alive at the time

she sustained such trauma, as indicated by her two black eyes; and that her attacker then

used a knife to stab Skeffington multiple times on her bed, where the evidence shows she

bled heavily and either lost consciousness or likely died.

       In addition, as noted the record shows the police found knives soaking in the

kitchen sink and blood smears on the kitchen cabinets and in or about the kitchen. One

swab taken from a kitchen cabinet showed Shaw (using conventional DNA testing) was a

possible minor contributor, with the odds it was a coincidental match being 1 in 9.2

million. Other swabs taken from the oven door and from additional smears on the



                                             32
kitchen cabinets showed Shaw (using Y-STR testing) was included as the possible

source, with the odds it was a coincidental match being 1 in 8,621 for each sample.

       We conclude this evidence, when considered under the circumstances, supports an

inference that after Skeffington refused to trade services for drugs, Shaw inflicted blunt

force trauma on Skeffington while she was on the bed; that as a result, she became

unconscious; and that Shaw then used a knife he obtained from the kitchen to stab her.

Indeed, the fact Skeffington did not have any defensive wounds or injuries strongly

supports the inference that Skeffington was rendered unconscious before she was

stabbed, which further supports the inference there was a delay between the blunt force

trauma and the stabbing.

       The inference that Shaw obtained the knife after Skeffington was rendered

unconscious is further supported by the fact that Skeffington was a prostitute and that she

and Shaw had already engaged in sexual activity about three or four weeks earlier. That

is, Shaw went to Skeffington's apartment on the night of August 26 reasonably expecting

to obtain services from Skeffington, and there is no evidence in the record suggesting

Skeffington would not have willingly provided those services if Shaw had money to pay

for them, inasmuch as Skeffington was a prostitute and was all about the money. Thus,

there would have been little reason for Shaw to have obtained a knife before he and

Skeffington went into her bedroom to engage in, like before, consensual sexual activity.

We conclude this evidence supports a reasonable inference that Shaw, however briefly,

planned the murder after Skeffington refused to swap drugs for sex and after he inflicted

blunt force trauma on her in the bedroom. (See People v. Sanchez (2001) 26 Cal.4th 834,

849 [noting " '[p]remeditation and deliberation can occur in a brief interval,' " and noting

                                             33
the " ' "test is not time, but reflection" ' "]; see also People v. Pensinger (1991) 52 Cal.3d

1210, 1238 [noting a "cold and calculating decision to kill can be arrived at very

quickly," and noting a court of review does "not measure the necessary reflection solely

by its duration"].)

       Finally, we conclude the manner of killing also evidenced reflection. Here, the

evidence showed that Skeffington was stabbed three different times, and slashed four

separate times, in the neck and face region; that the fatal wound was to her left internal

jugular vein and left internal carotid artery; and that there were no defense wounds. As

noted, the lack of any defensive wounds suggests Skeffington was repeatedly stabbed

after being rendered unconscious by blunt force trauma.

       In addition, the evidence shows that Skeffington's shorts were found inside out on

the bed, suggesting her attacker—and not Skeffington—removed her pants. In contrast,

detectives found Skeffington's blood-soaked shirt in the trash can outside Skeffington's

apartment. On that shirt, the police found cut or tear marks near the neck region,

suggesting Skeffington was wearing the shirt when she was stabbed. This evidence

supports the reasonable inference that Skeffington's attacker initially removed only her

pants and later removed the remainder of her clothes, including her shirt, after the

murder.

       Because a cold and calculating decision to kill can be arrived at very quickly, in

this case between the time Skeffington's pants were involuntarily removed and the time

the murderer obtained the knife and stabbed her (see People v. Pensinger, supra, 52

Cal.3d at p. 1238), we conclude Skeffington's injuries, the sequence of the removal of her

clothing and the manner of the stabbing " 'shows a calculated design to ensure death

                                              34
rather than an unconsidered explosion of violence' " (People v. Brady (2010) 50 Cal.4th

547, 565), as Shaw contends. (See ibid. [noting the "mere possibility of a contrary

finding as to [a] defendant's mental state does not warrant a reversal of the guilt

judgment"]; contra, People v. Craig (1957) 49 Cal.2d 313, 318 [reversing a first degree

murder conviction because there was no evidence the defendant had ever seen the victim

before he killed her, there was no evidence to show how the killing of the victim was

accomplished and there was no evidence to show the defendant committed the murder

either in the attempt to commit rape or in the commission of rape, but instead only

evidence that the victim had been dragged about 20 to 25 feet before the defendant's

brutal attack].)

       On this record, we conclude substantial evidence supports a finding beyond a

reasonable doubt that Shaw committed a deliberate and premeditated murder. In light of

our decision, we deem it unnecessary to determine whether substantial evidence

supported Shaw's first degree murder conviction based on the felony-murder doctrine.

                                      DISPOSITION

       The judgment of conviction is affirmed.
                                                                                  BENKE, J.

WE CONCUR:


McCONNELL, P. J.


AARON, J.




                                             35
