Filed 12/30/14 P. v. Pantoja CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A135667
v.
MIGUEL PANTOJA,                                                      (Solano County
                                                                     Super. Ct. No. FCR 251135)
         Defendant and Appellant.


         Defendant Miguel Pantoja appeals a judgment entered upon a jury verdict finding
him guilty of first degree murder, and finding true an allegation that he personally used a
deadly and dangerous weapon. He contends the trial court erred when it denied his
motion to suppress evidence and when it refused his request for a pinpoint instruction on
the defense theory that someone else committed the crime. He also contends the
evidence does not support the verdict. We shall affirm the judgment.
                                                 I.   BACKGROUND
     A. The Killing
         Defendant and the victim, Adriana Ortiz Pantoja, were married to each other, and
divorced in late 2007. They had lived separately since 2004. Their daughter, Nancy,
lived with Adriana in Suisun during that time, and defendant lived in Fairfield.1 Under
the terms of the divorce, Adriana would be awarded the house and she would refinance it


         1
         Because defendant, his former wife, and his daughter shared a last name, we
shall refer to Adriana and Nancy by their first names. We intend no disrespect.


                                                             1
to give defendant his share of the house’s value, and Adriana would have custody of
Nancy.
       In December 2007, Nancy was spending the winter break with the pastors of the
church she and Adriana attended, Monica and Arturo Sanchez. The day before Nancy
was supposed to return to Suisun, Adriana was not in church, as she usually was on
Sundays. Nancy tried unsuccessfully to contact her that day. The following morning,
January 7, 2008, Nancy went with the Sanchezes to the house she shared with Adriana.
The front door was locked. They opened the door and saw bloodstains on the living
room carpet. Arturo Sanchez followed the stains toward the bathroom, went into the
bathroom, and saw Adriana’s body in the tub. The three of them left the house and called
the police.
       Police officers came to the scene. There was a large bloodstain in the living room,
a trail of blood leading to the bathroom as if someone had been dragged, and a large
amount of blood on the bathroom floor. A woman’s body was in the tub. Her shirt was
raised up as if from being dragged, and her pants were down toward her feet. Her neck
had been cut deeply.
       The furniture in the living room was in disarray, and the door of an entertainment
center was broken. A knife set was missing from the kitchen counter.
   B. The Investigation
       Detective William Lee of the City of Suisun Police Department spoke with Nancy,
who gave him her father’s cell phone number. Lee called defendant, who went to his
home to meet Lee. Defendant was driving a pickup truck. Lee noticed that defendant
had what appeared to be two fresh claw or fingernail scratches on the side of his face.
       Lee looked inside defendant’s truck and saw stains on the seat cushions. Lee used
a screening test on a stain on the driver’s seat, and it tested positive for blood. The stain
was later found to contain female DNA that matched Adriana’s profile. This profile
would be shared by approximately one in 1.5 sextillion African-Americans, one in 2.6
sextillion Caucasians, and one in 750 quintillion Hispanics.



                                              2
       A criminalist scraped under Adriana’s fingernails. A small piece of material under
a fingernail on her right hand appeared to be skin and was found to have DNA that
matched the profile for defendant’s blood.2 That profile would be found in
approximately one in 26 quintillion African-Americans or Caucasians and one in 38
quintillion Hispanics. Defendant could not be excluded as the source of material found
under Adriana’s left fingernails that came from a male contributor.
       An autopsy of Adriana showed a number of injuries to her neck, head, face, and
shoulder, including cuts and scratches, stab wounds, and slash wounds. The injuries
appeared to have been caused by a sharp instrument. Her death was caused by a large,
deep slash wound to her neck that went through her throat, penetrated her cervical spine,
and almost decapitated her. The slash severed her carotid arteries and jugular veins.
Blood would have come from her body at high velocity in a “geyser like flow” and
covered any part of the assailant’s body that was in front of her. The irregularity of the
wound suggested it had not been made in a continuous motion, but that the assailant had
stopped and started several times. The direction of the slash wound, from Adriana’s right
to left, suggested her killer had used the left hand if he or she was standing behind
Adriana.3 Adriana also had bruises on her face, arms, hand, finger, and thigh. Based on
the condition of her body, it appeared Adriana had probably been dead 24 to 36 hours
before she was discovered.
       No murder weapon was found in defendant’s truck or residence.
   C. Defendant’s Prior Actions and Threats
       Defendant had moved out of the family home in 2004, after an incident in which
he tried to choke Adriana in Nancy’s bedroom, when Nancy was nine years old. Nancy
testified that she heard her mother make a noise in the bedroom, went to her room, saw
defendant on top of Adriana, and began crying. Defendant immediately got off of
Adriana and told Nancy to calm down and that nothing was happening. Adriana told
       2
         The piece of material was so small it was entirely consumed in the DNA
analysis, and could not be tested to see if it was in fact skin.
       3
           Defendant is right-handed.


                                             3
Nancy to call the police. By the time the police arrived, defendant had already left.
There were red marks and bruising on both sides of Adriana’s neck.
       Monica Sanchez had known Adriana since about 2004. Adriana and Nancy
attended the church where Arturo and Monica Sanchez were pastors, and they lived with
the Sanchezes for about five months in 2004. Adriana returned to live with defendant for
a few months, and then defendant moved out of the house.
       On one occasion in 2007, Monica Sanchez went to Adriana’s house because
Adriana was upset. At the time, defendant and Adriana were going through a divorce.
The telephone rang, and Adriana put it on speaker. Defendant was on the phone, and he
told Adriana that he had failed the first time and he would not fail the next time. When
defendant said that, Adriana began to cry.
       Araceli Uribe, a colleague and friend of Adriana, testified that she lived with
defendant and Adriana for a few months during 2003. On several occasions, she saw
defendant grab Adriana aggressively by the waist and force her toward him. The first
time this happened, defendant forced Adriana into their bedroom, as she yelled at him to
leave her alone and tried to get away. Defendant told her that if she wasn’t going to be
his, then she would not be anyone else’s. Adriana’s pajamas were torn in the incident.
On another occasion, he pulled her from the living room toward the bedroom asking her
to have sex with him. Adriana appeared frightened.
       Adriana decided to move to Los Angeles, and Uribe helped her. As they drove,
defendant called Adriana, and she put the phone on speaker. Uribe heard defendant tell
Adriana to return home because he was going to take his life and she would be to blame.
A few minutes later defendant called back and told her, “You are gonna pay for it, and if
you are not gonna be mine, you are not gonna be anybody else’s.” He also told her, “I’m
gonna kill you. Come back. Otherwise I’m gonna kill you.” At some point in 2003,
Adriana returned to the home she shared with defendant.
       Defendant moved out of the family home in Suisun in 2004. Uribe changed the
lock to the front door. Once, Uribe saw defendant use a screwdriver to get in through the
sliding glass door in back.


                                             4
       On one occasion when Uribe was visiting Adriana, defendant came to the house
when Adriana was outside. Defendant argued with Adriana about the house, using a loud
voice and telling her not to take the house from him. He grabbed her by the shoulder
when she tried to walk to the house.
       About a month before the killing, defendant waited for Adriana in the parking lot
after work, and Uribe heard him tell Adriana that “if she wasn’t gonna be for him she
wasn’t gonna be for anybody else.”4
       A relative of defendant testified that defendant had told him two or three times in
2007 that if he lost the house during the divorce, he would kill Adriana. Defendant also
told him, “She will not humiliate me. She will not laugh at me. I will kill her.”
Defendant told the relative in 2006 or 2007 that he had tried to kill Adriana by choking
her, but that he was unsuccessful because their daughter called the police, and that this
time he would “make sure to.” The relative did not take the statements seriously and did
not call the police.
   D. The Defense
       The defense theory was that someone else, Martin Alvarez, killed Adriana.
Alvarez knew Adriana through church and had a strong affection for her.
        Nine days after Adriana’s body was found, Alvarez was arrested in Napa for
public intoxication. He appeared extremely intoxicated, had slurred speech, and seemed
confused. While he was being booked, Alvarez put his head down and began weeping.
The arresting officer, Jack Thomson, testified that he asked Alvarez what was wrong, and
Alvarez pointed at his heart and replied, “I killed her” and “I killed my girlfriend.” He
said he had done so in Fairfield eight days previously. Alvarez spoke very little English,
and a Spanish-speaking correctional officer, Carlos Quintana, came to translate for
Thomson. Thomson and Quintana testified to inconsistent accounts of the ensuing
conversation. Thomson testified that Alvarez told Quintana he had killed his girlfriend,
and identified her as Adriana Ortiz or Adriana Pantoja. However, Quintana testified that

       4
           Uribe later testified this incident might have taken place in 2005.


                                                5
when he asked Alvarez why he was upset, Alvarez said his girlfriend had just been killed
and that was why he was out drinking. He did not say he had killed her and did not
identify her by name. The entire conversation with defendant took place in Spanish.
       The Napa Police Department contacted the Suisun Police Department, and officer
Eric Vera went to interview Alvarez. Alvarez told Vera he did not kill Adriana. Three
months later, Alvarez spoke with Vera again and told him he had a “crush” on Adriana.
He said he did not go to her funeral because he had been depressed.
       Alvarez testified that he did not recall having said he killed Adriana. He
remembered telling another officer the next day that he had not killed her. He denied
having had a dating relationship with Adriana. He said he did not go to her funeral
because he was working and he had not been invited. He testified that he did not kill
Adriana.
       Defendant also presented evidence that Adriana had driven defendant’s truck in
the past, that a stain on the truck’s steering wheel tested negative for blood, and that
fingerprints found in the house did not match defendant’s.
   E. Verdict and Sentence
       The jury found defendant guilty of first degree murder (Pen. Code, § 187, subd.
(a))5 and found true an allegation that he personally used a deadly and dangerous weapon
in the commission of the offense (§ 12022, subd. (b)(1)). The trial court sentenced him to
a prison term of 25 years to life for murder and imposed a one-year enhancement for the
use of the deadly and dangerous weapon.
                                        II. DISCUSSION
   A. Motion to Suppress Evidence
       1. Background
       Before trial, defendant moved to suppress evidence of the bloodstain in his truck
on the ground that its discovery was the result of an unlawful detention. According to the
motion, he was subjected to an unlawful detention, his consent to the search of the truck

       5
           All statutory references are to the Penal Code.


                                               6
was invalid, and he was arrested and subjected to DNA testing without probable cause.
At the hearing on the motion, Sylvia Martinez, an investigator with the district attorney’s
office, and Detective William Lee testified about how the bloodstain was found.
       When Lee arrived at the scene of the killing, Nancy told him that defendant and
Adriana fought a lot and that defendant had made death threats toward Adriana.
       Later that day, Martinez and several detectives and officers arrived at defendant’s
home. Lee was in uniform, as was at least one other officer. Defendant was not home, so
they called the cell phone number Nancy had given them, identified themselves, and
asked him if he would come meet them at the home. Defendant arrived a few minutes
later, parked his truck, and approached them without being directed. They noticed two
red marks on his left cheek, approximately two inches long, as if the skin had been
scratched. The scratches appeared to have ointment on them. The officers also noticed
defendant had cuts on his left hand and a Band-Aid on one of his fingers.
       Martinez explained to defendant that the officers wanted to talk with him about
what was going on with his wife. At Lee’s direction, she also asked defendant what had
happened to his face.6 Defendant said that a few days previously he had been confronted
by a man who asked for money and assaulted him. Lee reached for defendant’s hand,
held it and looked at it, and asked him about the Band-Aid.7 Defendant did not try to
pull his hand away or hide it from Lee.
       Martinez asked defendant whether the officers could search the truck. Defendant
said that would be fine, and then said a second time, without being asked again, that he
had no problem and that the search was fine. He got his keys and unlocked the truck, and



       6
        Martinez was fluent in Spanish, and defendant was more comfortable speaking
Spanish than English.
       7
         Lee described the injuries as sharp wounds or cut marks to the sides and top of
defendant’s hand, and as “linear cut marks, laterally across his fingers.” Photographs
taken after defendant was arrested show red marks at the top of the index and middle
fingers of his left hand, what appear to be slight markings across the knuckles of the same
hand, and a scrape on the underside of his left hand, just below his smallest finger.


                                             7
Lee looked inside and saw the stain on the seat cushion that was later found to contain
Adriana’s blood.
       The entire conversation took four to six minutes. During the conversation,
defendant was never told he was not free to leave and was not handcuffed.
       Martinez asked defendant if he was willing to come to the police department and
speak with the officers, and he said yes. Defendant was taken to the Sheriff’s
Department in one of the officers’ cars. He was not placed in handcuffs either on the ride
there or at the interview room. He was not told explicitly that he did not have to go with
the officers. When the interview began, defendant was told multiple times that he was
free to leave any time he wanted.
       At the end of the interview, defendant was arrested. The arrest was based on
Lee’s observations of defendant’s injuries, the truck, the fact that there were no signs of
forced entry or disturbance other than the living room and bathroom at Adriana’s house,
and discrepancies in defendant’s statements during the interview.
       Martinez testified that when the group went to defendant’s home, he was the focus
of the investigation and they wanted to “speak to him and try to see if he was a suspect.”
       The trial court denied the motion to suppress. It found the defendant acted
voluntarily both in returning to his home and in accompanying the officers to the police
station. The court also found that Lee’s action in taking defendant’s hand to see it better
did not constitute coercive behavior and that defendant remained free throughout the
process to tell the officers he did not want to talk with them, allow them to look in his
vehicle, or go to the police station.
       2. Discussion
       Defendant contends that by the time Lee obtained defendant’s permission to
search the truck, the encounter had become an unlawful detention, and his consent to the
warrantless search was therefore invalid. “The standard of appellate review of a trial
court’s ruling on a motion to suppress is well established. We defer to the trial court’s
factual findings, express or implied, where supported by substantial evidence. In
determining whether, on the facts so found, the search or seizure was reasonable under


                                              8
the Fourth Amendment, we exercise our independent judgment. [Citations.]” (People v.
Glaser (1995) 11 Cal.4th 354, 362.)
       “Police contacts with individuals may be placed into three broad categories
ranging from the least to the most intrusive: consensual encounters that result in no
restraint of liberty whatsoever; detentions, which are seizures of an individual that are
strictly limited in duration, scope, and purpose; and formal arrests or comparable
restraints on an individual’s liberty. [Citations.] . . . Unlike detentions, [consensual
encounters] require no articulable suspicion that the person has committed or is about to
commit a crime. [Citation.]” (In re Manuel G. (1997) 16 Cal.4th 805, 821; see also
People v. Terrell (1999) 69 Cal.App.4th 1246, 1253.) “[A] detention does not occur
when a police officer merely approaches an individual on the street and asks a few
questions. [Citation.] As long as a reasonable person would feel free to disregard the
police and go about his or her business, the encounter is consensual and no reasonable
suspicion is required on the part of the officer. Only when the officer, by means of
physical force or show of authority, in some manner restrains the individual’s liberty,
does a seizure occur. [Citations.] ‘[I]n order to determine whether a particular encounter
constitutes a seizure, a court must consider all the circumstances surrounding the
encounter to determine whether the police conduct would have communicated to a
reasonable person that the person was not free to decline the officers’ requests or
otherwise terminate the encounter.’ [Citation.] This test assesses the coercive effect of
police conduct as a whole, rather than emphasizing particular details of that conduct in
isolation. [Citation.] Circumstances establishing a seizure might include any of the
following: the presence of several officers, an officer’s display of a weapon, some
physical touching of the person, or the use of language or of a tone of voice indicating
that compliance with the officer’s request might be compelled. [Citations.]” (In re
Manuel G., supra, 16 Cal.4th at p. 821.)
       Defendant makes a two-part argument. First, he contends that by taking his hand
to examine it, Lee restrained his freedom to leave and thereby transformed the encounter
from a consensual one to a detention, and that Lee lacked a reasonable suspicion to


                                              9
justify a detention. For this point, defendant relies on Caifornia v. Hodari D. (1991) 499
U.S. 621, 625, which indicates a seizure or arrest may take place by “the slightest
application of physical force,” and People v. Castaneda (1995) 35 Cal.App.4th 1222,
1227, which states, “[u]ntil the officer asserts some restraint on the contact’s freedom to
move, no detention occurs.” Second, defendant argues, the unlawfulness of the detention
tainted his subsequent consent to the search of the truck and rendered it nonvoluntary,
and the evidence discovered in the search was therefore inadmissible. (People v. Stier
(2008) 168 Cal.App.4th 21, 28; People v. Saldana (2002) 101 Cal.App.4th 170, 176; see
also United States v. Washington (9th Cir. 2004) 387 F.3d 1060, 1072 [“ ‘ “evidence
obtained subsequent to an illegal investigation is tainted by the illegality and thus
inadmissible, notwithstanding . . . consent, unless subsequent events have purged the
taint.” ’ ”].)
        We need not decide whether the encounter had become a detention because we
conclude that, even assuming it was a detention, the detention was lawful. “Temporary
detentions for questioning or investigation may be justified by circumstances falling short
of probable cause. [Citation.] In order to justify such a detention, ‘ “the circumstances
known or apparent to the officer must include specific and articulable facts causing him
to suspect 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. Not
only must he subjectively entertain such a suspicion, but it must be objectively reasonable
for him to do so: the facts must be such as would cause any reasonable police officer in a
like position, drawing when appropriate on his training and experience [citation], to
suspect the same criminal activity and the same involvement by the person in question.” ’
[Citation.]” (In re J.G. (2010) 188 Cal.App.4th 1501, 1506.) Thus, “ ‘ “an investigative
stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though
the officer may be acting in complete good faith. [Citation.]” ’ ” (People v. Pitts (2004)
117 Cal.App.4th 881, 885.)
        The facts in this case easily meet the standards for a permissible detention. The
officers knew Adriana had been found dead, with her throat slit. The area of the house


                                             10
where she was killed was in some disarray, but there were no signs of forced entry or any
other crime having taken place there. Nancy had told officers the couple fought a lot and
defendant had made death threats against Adriana. Defendant had fresh scratch marks on
his face and injuries on his hand. These facts support more than a mere “hunch” that
criminal activity had taken place and that defendant was involved in it. (See People v.
Pitts, supra, 117 Cal.App.4th at p. 885.)
       We are not persuaded otherwise by defendant’s argument that the information
Nancy provided about the death threats was stale (see People v. Hirata (2009) 175
Cal.App.4th 1499, 1504 [information supporting warrant was stale where there was 82-
day delay between drug transaction and issuance of warrant]) or that defendant gave an
innocent explanation for his facial scratches (see In re Tony C. (1978) 21 Cal.3d 888, 894
[detention not permissible where circumstances not reasonably consistent with criminal
activity]). The facts of which the officers were aware showed that Nancy had recently
been killed, that defendant had made death threats, and that he had suffered injuries that
were consistent with being scratched. As noted in In re Tony C., “[t]he possibility of an
innocent explanation does not deprive the officer of the capacity to entertain a reasonable
suspicion of criminal conduct.” (Id. at p. 894.) Assuming defendant was detained when
Lee took his hand, the detention was justified.
       Because we conclude there was no unlawful detention, we reject defendant’s
argument that his consent to the search of the truck was tainted by the unlawfulness. The
trial court properly denied the suppression motion.
   B. Refusal of Third Party Culpability Instruction
       Defendant requested the jury be instructed as follows on third party culpability:
“You have heard evidence that a person other than the defendant committed the offense
with which the defendant is charged. The defendant is not required to prove the other
person’s guilt. It is the prosecution that has the burden of proving the defendant guilty
beyond a reasonable doubt. Therefore, the defendant is entitled to an acquittal if you
have a reasonable doubt as to the defendant’s guilt. Evidence that another person
committed the charged offense may by itself leave you with a reasonable doubt. [¶] If


                                            11
after considering all the evidence, including evidence that another person committed the
offense, you have a reasonable doubt that the defendant committed the offense, you must
find the defendant not guilty.” The trial court denied the request, concluding that even
without the requested instruction, the jury would be adequately instructed on all the
issues raised in the instruction. Defendant contends the trial court erred prejudicially in
denying his request that the jury be given the instruction pinpointing his theory of the
case, that is, that Martin Alvarez killed Adriana. (See People v. Ward (2005) 36 Cal.4th
186, 214–215 [trial court must give pinpoint instruction on defendant’s theory of case
upon request, if supported by substantial evidence].)
       Our Supreme Court rejected a similar contention in People v. Hartsch (2010) 49
Cal.4th 472, 504 (Hartsch). The trial court there had refused to give two proposed
instructions regarding third party liability. The first proposed instruction stated in
pertinent part: “ ‘If the evidence presented in this case convinces you beyond a
reasonable doubt that the defendant is guilty, you should so find, even though you may
believe that one or more other persons are also guilty. [¶] On the other hand, if you
entertain a reasonable doubt of the defendant’s guilt after an impartial consideration of
the evidence presented in the case, including any evidence of the guilt of another person
or persons, it is your duty to find the defendant not guilty.’ ” (Ibid.) The second
proposed instruction stated, “ ‘Evidence has been presented during the course of this trial
indicating or tending to prove that someone other than the defendant committed, or may
have had a motive and opportunity to commit the offense(s) charged. In this regard, it is
not required that defendant prove this fact beyond a reasonable doubt. [¶] The weight
and significance of such evidence are matters for your determination. If after
consideration of all of the evidence presented, you have a reasonable doubt that the
defendant committed the offense(s) charged, you must give the defendant the benefit of
the doubt and find him not guilty.’ ” (Ibid.)
       The court in Hartsch rejected the defendant’s argument that the trial court erred in
refusing the proffered instructions. The court began its analysis, “[w]e have noted that
similar instructions add little to the standard instruction on reasonable doubt. [Citation.]


                                             12
We have also held that even if such instructions properly pinpoint the theory of third
party liability, their omission is not prejudicial because the reasonable doubt instructions
give defendant ample opportunity to impress upon the jury that evidence of another
party’s liability must be considered in weighing whether the prosecution has met its
burden of proof. [Citations.]” (Hartsch, supra, 49 Cal.4th at p. 504.) The court went on
to note that the first proposed instruction did little more than restate the reasonable doubt
standard, and that “[t]he omission of this instruction, if error, could not have affected the
verdict. It is hardly a difficult concept for the jury to grasp that acquittal is required if
there is reasonable doubt as to whether someone else committed the charged offenses.”
(Ibid.) The court then concluded the second proposed instruction was improper because
it was unduly argumentative. (Ibid.)
       Our Supreme Court reached a similar conclusion in People v. Earp (1999) 20
Cal.4th 826, 887 (Earp). There, the defendant offered a pinpoint instruction that
“ ‘[e]vidence has been offered that a third party is the perpetrator of the charged offense.
It is not required that the defendant prove this fact beyond a reasonable doubt. In order to
be entitled to a verdict of acquittal, it is only required that such evidence raise a
reasonable doubt in your minds of the defendant’s guilt.’ ” The high court ruled that the
defendant suffered no prejudice from the trial court’s refusal to give the instruction: the
jury was instructed that the prosecution had to prove the defendant’s guilt beyond a
reasonable doubt, and the jury knew from defense counsel’s argument that it was the
defense theory that someone else had committed the crimes charged. (Ibid.)
       Here, the jury received the standard instructions on the presumption of innocence,
the burden of the prosecution to prove defendant guilty beyond a reasonable doubt, and
the jury’s duty to consider all the evidence presented at trial. Defense counsel had the
opportunity to emphasize the evidence of Alvarez’s guilt in his closing argument, and he
did so. He also pointed out to the jury that the prosecution had the duty to prove
defendant’s guilt beyond a reasonable doubt and that defendant had no burden at all.
Like the courts in Hartsch and Earp, we conclude the requested instruction added little to
the standard instructions and that defendant suffered no prejudice by their omission.


                                               13
       Defendant argues, however, that he was prejudiced by the trial court’s failure to
give the requested instruction because the prosecutor “exploited” the lack of the
instruction by arguing to the jury, “In order for you to believe that Martin Alvarez
committed this crime you have to believe that then there was some type of a conspiracy
against Mr. Pantoja” and that if Alvarez had committed the crime, he would have been
covered in blood. This argument, however, was simply the prosecutor’s theory of the
defense’s case; it did not misinform the jury about the burden of proof. Accordingly, we
reject defendant’s contention that the trial court prejudicially erred by refusing
defendant’s proposed instruction on third party culpability.
   C. Sufficiency of the Evidence
       Defendant contends there was no substantial evidence to support a finding either
that he killed Adriana or that he acted with premeditation and deliberation. Our standard
of review in evaluating such a claim is well settled. “In reviewing a claim for sufficiency
of the evidence, we must determine whether, after reviewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime or special circumstance beyond a reasonable doubt. We review the
entire record in the light most favorable to the judgment below to determine whether it
discloses sufficient evidence—that is, evidence that is reasonable, credible, and of solid
value—supporting the decision, and not whether the evidence proves guilt beyond a
reasonable doubt. [Citation.] We neither reweigh the evidence nor reevaluate the
credibility of witnesses. [Citation.] We presume in support of the judgment the existence
of every fact the jury reasonably could deduce from the evidence. [Citation.] If the
circumstances reasonably justify the findings made by the trier of fact, reversal of the
judgment is not warranted simply because the circumstances might also reasonably be
reconciled with a contrary finding.” (People v. Jennings (2010) 50 Cal.4th 616, 638–639
(Jennings.)
       Applying these standards, we conclude the evidence is sufficient to support a
finding that defendant killed Adriana. Evidence of prior threats may serve as proof of the
identity of an offender. (People v. San Nicolas (2004) 34 Cal.4th 614, 668 (San


                                             14
Nicolas).) The evidence at trial showed that defendant made one attempt on Adriana’s
life in 2004; that he subsequently threatened multiple times to kill her; that some of those
threats were made in 2007, as the couple was going through their divorce; that when
making one of those threats, defendant told a relative he would kill Adriana if he lost the
house during the divorce; and that Adriana in fact was awarded the house in the divorce
proceedings. After Adriana was killed, fresh scratch marks were observed on defendant’s
face as well as injuries on his hands. Finally, DNA that matched defendant’s to a near
certainty was found under one of Adriana’s fingernails.
       Defendant points out that the fragment of material that contained his DNA was
small and was not tested to determine whether it was skin; he argues that the DNA might
have been transferred from one sample to another before or during DNA testing. The
jury heard the testimony of the criminalists who collected and analyzed the sample, and
we see no basis to conclude the evidence is insufficient to support a conclusion that
defendant’s DNA was in fact found under Adriana’s fingernail. This DNA, in
conjunction with defendant’s fresh injuries, in turn supports a conclusion that Adriana
scratched defendant during the course of the attack on her life. Defendant also points out
that there was no evidence of how long Adriana’s blood had been in his truck, that
Adriana had driven his truck in the past, and that there was no other physical evidence
that he killed her. These facts, however, do not undermine the conclusion that substantial
evidence supports the jury’s finding that defendant killed Adriana.
       We likewise reject defendant’s contention that there is insufficient evidence that
the murder was in the first degree. Section 189 provides that a murder perpetrated by
specified means “or by any other kind of willful, deliberate, and premeditated killing” is
murder of the first degree. “ ‘An intentional killing is premeditated and deliberate if it
occurred as the result of preexisting thought and reflection rather than unconsidered or
rash impulse.’ [Citation.] In this context, ‘ “premeditated” means “considered
beforehand” and “deliberate” means “formed or arrived at or determined upon as a result
of careful thought and weighing of considerations for and against the proposed course of
action.” ’ [Citation.] We normally consider three kinds of evidence to determine


                                             15
whether a finding of premeditation and deliberation is adequately supported—preexisting
motive, planning activity, and manner of killing—but ‘[t]hese factors need not be present
in any particular combination to find substantial evidence of premeditation and
deliberation.’ [Citation.]” (Jennings, supra, 50 Cal.4th at p. 645.) These factors, which
are described in People v. Anderson (1968) 70 Cal.2d 15, 26–27, are intended to “aid
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,” but “[do] not purport to establish an exhaustive list
that would exclude all other types and combinations of evidence that could support a
finding of premeditation and deliberation.” (People v. Perez (1992) 2 Cal.4th 1117,
1125, citing Anderson, supra, 70 Cal.2d at p. 27.) Moreover, “premeditation can occur in
a brief period of time. ‘The true test is not the duration of time as much as it is the extent
of the reflection. Thoughts may follow each other with great rapidity and cold, calculated
judgment may be arrived at quickly . . . .’ ” (Perez, supra, 2 Cal.4th at p. 1127.)
       The evidence here is sufficient to sustain the jury’s finding. Defendant’s prior
threats to kill Adriana, some made in connection with the divorce, as well as his earlier
attempt on her life, support the conclusion that his intent to kill her was not the result of a
rash impulse. (See San Nicolas, supra, 34 Cal.4th at p. 668 [evidence of prior threats
admissible to show defendant’s state of mind].) There is evidence of preexisting motive:
defendant’s statements show that he believed Adriana was humiliating him and said he
would kill her if he lost the house in the divorce—as in fact he did. Finally, the manner
of the killing itself—in which the knife was repositioned several times as Adriana’s
throat was cut—and the killer’s success in leaving few traces, provide some evidence of
planning and deliberation. This evidence is sufficient to support the jury’s finding.
                                    III.    DISPOSITION
       The judgment is affirmed.




                                              16
                                 _________________________
                                 Rivera, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Reardon, J.




                            17
