Filed 9/18/13 P. v. Compian CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B242940
                                                                          (Super. Ct. No. 2009046937)
     Plaintiff and Respondent,                                                 (Ventura County)

v.

ALEX COMPIAN,

     Defendant and Appellant.


                   Alex Compian appeals a judgment following his conviction of first degree
murder (Pen. Code, § 187, subd. (a), 189), with jury findings that he "personally and
intentionally discharged a firearm, which proximately" caused the death of Mario
Cisneros. We conclude, among other things, that: 1) the trial court did not err by
denying a motion to exclude a witness's pretrial photographic identification and in-court
identification of Compian, and 2) substantial evidence supports the finding the murder
was deliberate and premeditated. We affirm.
                                                         FACTS
                   Gustavo Nevarez knew Compian since Compian was 13 years old.
Nevarez's brother and Compian had lived at the same address. Over the years Nevarez
had seen Compian hundreds of times.
                   On the evening of December 24, 2009, Nevarez celebrated Christmas with
family members. Later that evening he went to Mario Cisneros's house at 220 Alpine
Street. He knocked on the door. Cisneros did not answer. Nevarez saw Cisneros
walking on the sidewalk near a neighbor's driveway. He called out to Cisneros, but
Cisneros did not hear him because he was talking to somebody. Nevarez heard Cisneros
say "Fuckin' rat. Damn rat. . . . . A rat, you are a rat."
              Compian was "following" Cisneros. He "cut across" a "neighboring yard"
while pursing Cisneros. As Cisneros walked toward his residence, Compian was
"walking behind him."
              Nevarez decided to walk to an area to wait for Cisneros. While walking,
Nevarez heard gunshots. He saw Compian running away towards a car.
              Nevarez went to a relative's house nearby and told them to call an
ambulance. He told his relatives that Compian had shot Cisneros. Nevarez went back to
Cisneros and told him, "Hold on, hang in there, we're going to go get help," but Cisneros
died from his wounds. Nevarez noticed that the car Compian ran to was no longer there.
              Police Officer Sonia Sanchez arrived at the scene and drove Nevarez to the
Oxnard police station. Nevarez told Sanchez that Compian was "the shooter." She
showed him a photograph of Compian. Nevarez identified him as the shooter and said he
had known Compian for five years.
              Joanna Hernandez was the mother of Compian's child. During a phone call
after the shooting, Compian told her that he had "smoked a homie" on Alpine Street and
the victim had called him a rat.
              In a pretrial motion, Compian's counsel moved to exclude the evidence of
Nevarez's photo identification of Compian at the police station. He argued that the
procedure was "unduly suggestive." He requested that no "eyewitness identification in
court" be introduced. The trial court denied the motion.
              At trial, Nevarez identified Compian as the person he saw running from the
scene of the shooting.
              Gabriel Anthony Cisneros (Gabriel), the victim's son, testified that before
the shooting he heard a man yell, "What's up, homie?" It was not his father's voice.


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Gabriel believed the angry tone in the man's voice while uttering this phrase was intended
to deliver the message: "I have a problem with you. What are we going to do about it or
how are we going to solve it?"
              Samuel Frias, the victim's stepson, testified that before the shooting he
heard a man "arguing" and "cussing . . . really loud." He said, "[I]t was not [Cisneros's]
voice."
              Edwin Jones, a forensic scientist, testified the victim was behind a wooden
gate in the yard of a residence when he was shot. The shooter was outside the fence.
Bullets passed through the wooden fence showing "clean circular holes."
              Ronald O'Halloran, the Ventura County chief medical examiner, testified
he performed an autopsy on Cisneros. He died of gunshot wounds to "the upper torso."
Two bullets penetrated his back and a third bullet hit his "upper thigh area."
              Compian did not testify or present a defense case.
                                        DISCUSSION
              Excluding the Pretrial and In-Court Identifications of Compian
              Compian contends the trial court erred by denying his motion to exclude
Nevarez's pretrial and in-court identifications of him. He claims the pretrial identification
was "impermissibly suggestive" because police showed Nevarez only a single
photograph--a picture of Compian. He argues Nevarez's in-court identification was
consequently "tainted" by this suggestive procedure. We disagree.
              "[T]o determine whether the admission of identification evidence violates a
defendant's right to due process of law, we consider (1) whether the identification
procedure was unduly suggestive and unnecessary, and, if so, (2) whether the
identification itself was nevertheless reliable under the totality of the circumstances . . . ."
(People v. Cunningham (2001) 25 Cal.4th 926, 989.) Important factors include "the
opportunity of the witness to view the suspect at the time of the offense, the witness's
degree of attention," at that time, and the "accuracy of his or her prior description of the
suspect . . . ." (Ibid.) We also consider "the level of certainty demonstrated at the time of


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the identification, and the lapse of time between the offense and the identification."
(Ibid.)
              The defendant has "the burden of showing an unreliable identification
procedure." (People v. Ochoa (1998) 19 Cal.4th 353, 412.) We make an "independent
review" to decide whether the trial court correctly found the identification procedure was
not suggestive. (People v. Kennedy (2005) 36 Cal.4th 595, 609, overruled on other
grounds in People v. Williams (2010) 49 Cal.4th 405, 459.)
              Compian contends the pretrial identification was unfair and procedurally
invalid because police only showed Nevarez a photograph of him. But our Supreme
Court has held that such single suspect identifications are not prohibited. (People v.
Medina (1995) 11 Cal.4th 694, 753.) "[A]lthough a one-person showup may pose a
danger of suggestiveness, such showups 'are not necessarily or inherently unfair.
[Citation.] Rather, all the circumstances must be considered.'" (Ibid.) Excluding
evidence of this police procedure is not required where there is proof that the
identification was reliable. (People v. Cunningham, supra, 25 Cal.4th at p. 989.)
              The trial court found there was no "unduly suggestive" identification and
the police did not "plant in a witness' mind an idea of who they believe committed the
crime." The court was correct.
              Nevarez identified Compian as the shooter before the police showed him
the photograph. The reliability of the identification was high as Nevarez had known
Compian for five years. Over the years he said had seen Compian on 500 prior
occasions. Consequently, he did not need a photograph to identify him. The line-up
cases cited by Compian involve witnesses identifying suspects who are strangers. That is
not the case here. Moreover, Officer Sanchez testified she only showed Nevarez the
picture to confirm what he had previously told her about who committed the crime.
Nevarez told his relatives Compian committed the crime before the police arrived at the
scene. These facts show the pretrial identification was not the product of any police
suggestive measures. (People v. Harris (1985) 175 Cal.App.3d 944, 958-959; People v.


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Cooks (1983) 141 Cal.App.3d 224, 307 [in-court identifications were not inadmissible
where witnesses relied on "their observations of the defendants at the time of the crimes
. . . independent of pretrial identifications"].)
               Moreover, any error would be harmless. The evidence of Compian's guilt
is compelling given the strength of the prosecution's evidence. After the shooting,
Compian made highly incriminating admissions to Hernandez. He said that he "smoked
a homie" on Alpine Street and that the victim had called him a rat. He said, "They're
gonna try to get me for murder. And you know what? I'm not gonna be out for a long
time . . . ." He also showed his consciousness of guilt by instructing Hernandez to "lie" to
the police and fabricate a story if she was questioned about him. Expert testimony
confirmed that he had gunshot residue on his hands.
                                     Substantial Evidence
               Compian contends the evidence is insufficient to support a conviction for
first degree murder. He claims the record does not support a finding of deliberation and
premeditation because it only shows he shot Cisneros after a "spontaneous" "encounter,"
and he then "departed." We disagree.
               "The role of an appellate court in reviewing the sufficiency of the evidence
is limited." (People v. Ceja (1993) 4 Cal.4th 1134, 1138.) We review the record in the
light "most favorable to the judgment." (Ibid.) We do not weigh the evidence or decide
the credibility of the witnesses. (People v. Belcher (1961) 189 Cal.App.2d 404, 407.) In
attacking the sufficiency of the evidence, the appellant has a strong burden to meet. "'The
reviewing court presumes in support of the judgment the existence of every fact the jury
could reasonably deduce from the evidence.'" (People v. Halgren (1996) 52 Cal.App.4th
1223, 1232.)
               Murder is "'the unlawful killing of a human being . . . with malice
aforethought.' [Citation.] First degree murder is any 'kind of willful, deliberate, and
premeditated killing.'" (People v. Nazeri (2010) 187 Cal.App.4th 1101, 1111.) "Second
degree murder is any kind of murder that doesn't fall within the definition of first degree


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murder." (Ibid.) For first degree murder, the evidence must support the finding that the
defendant killed the victim "'as the result of preexisting reflection rather than
unconsidered or rash impulse.'" (People v. Manriquez (2005) 37 Cal.4th 547, 577.)
              Here the jury was instructed on first and second degree murder. The trial
court advised jurors that "[p]rovocation may reduce a murder from first degree to second
degree." It instructed them that "[a] decision to kill made rashly, impulsively, or without
careful consideration is not deliberate and premeditated." But the jury unequivocally
rejected Compian's claim that his crime was the result of an "unconsidered or rash
impulse" when it found him guilty of first degree murder. (People v. Manriquez, supra,
37 Cal.4th at p. 577.)
              "[A]n appellate court may not substitute its judgment for that of the jury."
(People v. Ceja, supra, 4 Cal.4th at p. 1139.) "If the circumstances reasonably justify the
jury's findings, the reviewing court may not reverse the judgment because it believes that
the circumstances might also support a contrary finding." (Ibid.)
              "[P]remeditation can occur in a brief period of time." (People v. Perez
(1992) 2 Cal.4th 1117, 1127.) It can happen in "a matter of seconds." (People v. Brito
(1991) 232 Cal.App.3d 316, 324.) "'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, at p. 1127.) "[A]
killing resulting from preexisting reflection, of any duration, is readily distinguishable
from a killing based on unconsidered or rash impulse." (People v. Solomon (2010) 49
Cal.4th 792, 813.)
              Cisneros was outside a residence at the time he was shot. He posed no
threat to Compian. Cisneros was particularly vulnerable as Compian approached him
from behind when he (Cisneros) was unarmed and intoxicated. Compian fired multiple
shots. The jury could reasonably find deliberation and premeditation from the "manner
of killing," which involved multiple gun shots. (People v. Silva (2001) 25 Cal.4th 345,
369.) In Silva, our Supreme Court stated, "The manner of killing--multiple shotgun


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wounds inflicted on an unarmed and defenseless victim who posed no threat to
defendant--is entirely consistent with a premeditated and deliberate murder." (Ibid.)
              The People suggest the killing was execution style. "[A]n execution-style
killing may be committed with such calculation that the manner of killing will support a
jury finding of premeditation and deliberation, despite little or no evidence of planning
and motive." (People v. Lenart (2004) 32 Cal.4th 1107, 1127.) Here there was no
execution style shot to the head. (People v. Stewart (2004) 33 Cal.4th 425, 495.) But
courts have upheld findings of premeditation and deliberation in cases where defendants
shot helpless or retreating victims in the back. (People v. Manriquez, supra, 37 Cal.4th at
p. 578; People v. Brito, supra, 232 Cal.App.3d at p. 323.) A "deliberate intent to kill"
also may be inferred from the act of firing shots "at a vital area of the body," such as the
upper torso. (People v. Koontz (2002) 27 Cal.4th 1041, 1082.) Here the two bullets that
penetrated Cisneros's back also penetrated his left lung. One bullet caused a "perforation
in his heart." That single shot would cause a "fatal" injury. Jurors could draw inferences
about Compian's state of mind from his act of firing two shots to the back. (Manriquez,
at p. 578.) His state of mind is also shown by the callous language he used to describe
this incident. He said that he "smoked a homie."
              The jury could also reasonably infer from Compian's other actions that he
had time to deliberate and planned the attack. Compian followed Cisneros before he shot
him. Jurors could draw a reasonable inference that he selected a path to attack his victim.
While armed, he "cut across" a "neighboring yard" to catch up with Cisneros. (People v.
Koontz, supra, 27 Cal.4th at p. 1082 [evidence that defendant followed the victim
supports a finding of planning].)
              Motive may also be considered in evaluating evidence of preexisting
reflection. (People v. Solomon, supra, 49 Cal.4th at pp. 813-814.) The jury could find
that Compian's admission to Hernandez showed he had a motive to kill because Cisneros
called him a rat. By its verdict the jury necessarily found no evidence of provocation to
support a second degree murder verdict. (People v. Ward (2005) 36 Cal.4th 186, 214.)


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Jurors could reasonably find that while following Cisneros, Compian made the "cold,
calculated judgment" that he had to be "smoked" for his remarks. (People v. Perez,
supra, 2 Cal.4th at p. 1127.) In addition, from Gabriel's and Frias's testimony they could
also infer preexisting reflection. It showed Compian's anger or problem with Cisneros
before the shooting supported a motive for the killing. The evidence is sufficient.
              The judgment is affirmed.
              NOT TO BE PUBLISHED.




                                          GILBERT, P.J.


We concur:



              YEGAN, J.



              PERREN, J.




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                             Charles W. Campbell, Jr., Judge

                            Superior Court County of Ventura

                           ______________________________


             Mark D. Lenenberg, under appointment by the Court of Appeal, for
Defendant and Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M.
Roadarmel, Jr., Supervising Deputy Attorney General, Daniel C. Chang, Deputy Attorney
General, for Plaintiff and Respondent.




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