Filed 2/24/15 P. v. Larumbe CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B254678

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA399231)
         v.

LUIS LARUMBE,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Anne H.
Egerton, Judge. Affirmed as modified.
         David Andreasen, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Stephanie A. Miyoshi and Daniel C. Chang, Deputy Attorneys General, for
Plaintiff and Respondent.
                                          _______________________
       Luis Larumbe killed Victor Moreno by repeatedly stabbing him with a knife. A
jury convicted Larumbe of first degree murder, finding true the special allegation he had
personally used a deadly or dangerous weapon in committing the offense. On appeal
Larumbe argues there was insufficient evidence of premeditation and deliberation to
support the first degree murder verdict. We agree and modify the judgment by reducing
the conviction to second degree murder (Pen. Code, §§ 1181, subd. 6 & 1260) and
modifying Larumbe’s sentence to an indeterminate 16-year-to-life term, rather than the
                                                   1
26-year-to-life term imposed by the trial court.
                 FACTUAL AND PROCEDURAL BACKGROUND
       1. Summary of the Evidence Presented at Trial
       On July 12, 2011 Los Angeles Police Detective Stephanie Carrillo and her partner,
Detective Jose Ramirez, responded to a radio call about a possible homicide near
Hollenbeck Park. When Carrillo and Ramirez arrived, they found Moreno’s dead body
lying face down on a Caltrans dirt easement adjacent to the park. He had been stabbed
multiple times. A serrated knife, broken into two pieces, was on the ground by Moreno’s
head, and a foam mattress and comforter were nearby. It did not appear Moreno’s body
had been dragged or moved to the location.
       Officer Carrillo noticed a trail of blood leading away from Moreno’s body. She
followed the blood trail across the easement, through a hole in the chain link fence
separating the easement from the park, down a hill and west on Boyle Avenue until the
trail ended. Sample swabs were taken from some of the blood stains.

1      Larumbe also contends, and the Attorney General concedes, the minute order
entered following sentencing, as well as the abstract of judgment, erroneously identifies
the amounts of the restitution fine (Pen. Code, § 1202.4) and (stayed) parole revocation
fine (Pen. Code, § 1202.45) as $280 each instead of $200, the minimum fine applicable
when Larumbe committed the offense and the sum the trial court orally imposed at the
sentencing hearing. Accordingly, in addition to reducing the conviction to second degree
murder, we modify the written judgment to reflect restitution and parole revocation fines
of $200. Upon issuance of the remittitur the superior court is directed to correct the
abstract of judgment to reflect these modifications and to forward a copy of the corrected
abstract to the Department of Corrections and Rehabilitation.

                                             2
      Larumbe was not identified as a suspect until September 20, 2011 when Eligio
Hernandez, who had been talking to the police about another case, said he had
information about a stabbing in Hollenback Park earlier that year. Consistent with what
he told Detective Ramirez during an interview, Hernandez testified at trial he and
Larumbe lived together in July 2011 in an apartment near Hollenbeck Park and slept in
bunk beds. On July 11, 2011 Larumbe was out all evening. Hernandez heard Larumbe
return around 4:30 a.m. on July 12, 2011. When Hernandez got out of bed a few hours
later, he saw blood on Larumbe’s clothes and a cut on his hand. He asked Larumbe what
had happened. Larumbe, who always carried a knife in a backpack (either a small knife
or a kitchen knife), said he had stabbed and killed someone who had confronted him in
                                                                                2
Hollenbeck Park, which he occasionally visited and where he sometimes slept.
Hernandez initially testified Larumbe did not tell him the reason Moreno had confronted
him. During cross-examination defense counsel asked Hernandez whether he
remembered telling Ramirez that Larumbe had said Moreno slept in his spot and they had
                                                                                      3
a dispute. Hernandez responded, “Yes. I think so. I remember a little bit of that.”
Hernandez did not contact police sooner because Larumbe had threatened to kill
Hernandez and his family if Hernandez told anyone. They stopped living together in
September 2011 after Larumbe attacked him.
      Dr. Paul Gliniecki, the deputy medical examiner who had performed the autopsy,
testified the cause of Moreno’s death was multiple sharp force and blunt force traumatic
injuries. Moreno had approximately 179 sharp force trauma wounds consistent with the
use of a knife, divided roughly evenly between incise and stab wounds, on the upper half


2      Detective Ramirez testified transients frequently slept in Hollenbeck Park and on
the easement where Moreno was found. Hernandez had told Ramirez that Larumbe often
stayed at Hollenbeck Park for two to three days and would walk or bicycle there.
However, in a recorded interview Larumbe denied sleeping in the park, hurting anyone or
getting injured there. He also denied carrying a knife.
3      Detective Ramirez testified Hernandez had said there was some sort of a dispute
over a sleeping spot.

                                            3
                            4
of his body and his head. The majority of the wounds were not fatal or rapidly fatal, but
Gliniecki considered several that had punctured a lung as fatal. Moreno also had several
blunt force trauma injuries to his face and extremities, as well as defense wounds on his
                                5
right arm, left palm and legs. Gliniecki could not determine whether the sharp force or
blunt force wounds occurred first, in what order the sharp force wounds were made or if
any of the stab wounds were made after Moreno was already dead. However, Gliniecki
agreed with defense counsel that it would have taken “a while” for the assailant to have
made the stab wounds. It was stipulated Moreno’s blood-alcohol level was 0.23 percent
at the time of his death.
       Dr. Quang Nguyen, a criminalist who performed DNA testing, testified a blood
sample taken from the broken blade of the knife had a major single source profile that
matched Moreno’s. Blood on the knife handle contained a mixture of Moreno and
Larumbe’s DNA. Two stains on the blood trail leading away from Moreno’s body had
DNA profiles matching Larumbe’s.
       Larumbe did not testify or offer any evidence, other than through cross-
examination of the People’s witnesses, in his own defense.
       2. Jury Instructions, Verdict and Sentence
       The jury was instructed with CALCRIM Nos. 520 (murder); 521 (degrees of
murder); 570 (voluntary manslaughter based on killing because of a sudden quarrel or in
the heat of passion); 522 (provocation reducing first degree murder to second degree
murder or voluntary manslaughter); 505 (self-defense); and 571 (imperfect self-defense).
CALCRIM No. 521 as given stated in part, “The defendant is guilty of first degree
murder if the People have proved that he acted willfully, deliberately and with


4    Dr. Gliniecki explained stab wounds are deeper than the length of the surface
wound and incise wounds are longer on the surface than they are deep.
5     The autopsy report identified four defensive wounds. Gliniecki testified, however,
some of the other wounds were consistent with defensive wounds. In any event, even
considering those as defensive wounds, the number was small compared to the number of
times Moreno was stabbed.

                                             4
premeditation. The defendant acted willfully if he intended to kill. The defendant acted
deliberately if he carefully weighed the considerations for and against his choice and,
knowing the consequences, decided to kill. The defendant acted with premeditation if he
decided to kill before completing the acts that caused death. [¶] The length of time the
person spends considering whether to kill does not alone determine whether the killing is
deliberate and premeditated. The amount of time required for deliberation and
premeditation may vary from person to person and according to the circumstances. A
decision to kill made rashly, impulsively, or without careful consideration is not
deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be
reached quickly. The test is the extent of the reflection, not the length of time.”
       The jury began deliberating on Friday, January 31, 2014, at 2:45 p.m, and was
excused for the weekend 45 minutes later. Shortly after deliberations resumed on
Monday, February 3, 2014, the jury asked, “Can premeditation occur during the
                 6
murderous act?” The jury was instructed to reread CALCRIM No. 521. Approximately
one hour later the jury returned with a verdict, finding Larumbe guilty of first degree
murder and finding true the special allegation he had personally used a deadly or
dangerous weapon (a knife).
       The trial court sentenced Larumbe to a state prison term of 26 years to life,
comprised of 25 years to life for first degree murder plus an additional year for the deadly
weapon enhancement.
                                       DISCUSSION
       1. Standard of Review
       To assess a claim of insufficient evidence in a criminal case, “we review the whole
record to determine whether any rational trier of fact could have found the essential
lements of the crime or special circumstances beyond a reasonable doubt. [Citation.]
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

6      The word “during” was underlined twice.

                                              5
the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we
review the evidence in the light most favorable to the prosecution and presume in support
of the judgment the existence of every fact the jury could reasonably have deduced from
the evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable
suspicion do not justify the reversal of a judgment, for it is the exclusive province of the
trial judge or jury to determine the credibility of a witness and the truth or falsity of the
facts upon which a determination depends. [Citation.] We resolve neither credibility
issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.]
A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s
verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357; accord, People v.
Manibusan (2013) 58 Cal.4th 40, 87.)
      2. There Is Insufficient Evidence of Premeditation and Deliberation To Support the
          Verdict of First Degree Murder
              a. Governing Law
       “‘“A verdict of deliberate and premeditated first degree murder requires more than
a showing of intent to kill. [Citation.] ‘Deliberation’ refers to careful weighing of
considerations in forming a course of action; ‘premeditation’ means thought over in
advance. [Citations.]” [Citation.] “‘Premeditation and deliberation can occur in a brief
interval. “The test is not time, but reflection. ‘Thoughts may follow each other with
great rapidity and cold, calculated judgment may be arrived at quickly.’”’”’” (People v.
Mendoza (2011) 52 Cal.4th 1056, 1069.) In contrast, second degree murder is an
unlawful killing with malice—either express (intent to kill) or implied (the intentional
commission of a life-threatening act with conscious disregard for life)—but without the
elements of willfulness, premeditation and deliberation. (See People v. Chun (2009)
45 Cal.4th 1172, 1181.)
       In People v. Anderson (1968) 70 Cal.2d 15 (Anderson) the Supreme Court
“[r]ecognize[ed] the need to clarify the difference between [first and second degree]
murder and the bases upon which a reviewing court may find that the evidence is


                                               6
sufficient to support a verdict of first degree murder . . . .” (Id. at p. 26.) After “set[ting]
forth standards, derived from the nature of premeditation and deliberation as employed
by the Legislature and interpreted by [the Court], for the kind of evidence which is
sufficient to sustain a finding of premeditation and deliberation” and analyzing
representative cases, the Court set forth the benchmark standard. As summarized in
People v. Elliot (2005) 37 Cal.4th 453, “‘Generally, there are three categories of evidence
that are sufficient to sustain a premeditated and deliberate murder: evidence of planning,
motive, and method. [Citations.] When evidence of all three categories is not present,
“[a reviewing court] requires either very strong evidence of planning, or some evidence
of motive in conjunction with planning or a deliberate manner of killing . . . .”’” (Id. at
p. 471; see People v. Alcala (1984) 36 Cal.3d 604, 626 [“Evidence in only one of these
areas most often is insufficient. Where fewer than all three indicia are present, we
require ‘at least extremely strong evidence of (1) [planning] or evidence of (2) [motive]
in conjunction with either (1) or (3) [deliberate manner of killing].’”].) “‘But these
categories of evidence, borrowed from [Anderson] “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.”’” (Elliot, at p. 471.)
              b. The evidence was insufficient to support an inference of planning
       Planning is the “most important prong of the Anderson test.” (People v. Alcala,
supra, 36 Cal.3d at p. 627; accord, People v. Pensinger (1991) 52 Cal.3d 1210, 1238.)
Although a plan may be “rapidly and coldly formed” just before a killing (see People v.
Mendoza, supra, 52 Cal.4th at p. 1070 [evidence defendant devised plan to kill officer
when officer indicated he would conduct pat search was substantial evidence killing was
planned]; People v. Brady (2010) 50 Cal.4th 547, 563 [evidence of plan sufficient even
though defendant shot police officer “only a few minutes passed between the time Officer
Ganz first shined his patrol vehicle’s spotlight on defendant’s car and the shooting”]),
there must nevertheless be “substantial evidence that the killing did not result from

                                               7
unconsidered or rash impulse.” (Mendoza, at p. 1070; see Anderson, supra, 70 Cal.2d at
p. 26 [describing “‘planning’” activity as “facts about how and what defendant
did prior to the actual killing which show that the defendant was engaged in activity
directed toward, and explicable as intended to result in, the killing”].) The only evidence
as to what may have transpired between Larumbe and Moreno before the killing was
Hernandez’s testimony Larumbe had said Moreno confronted him and there may have
been some sort of a dispute about a sleeping spot. Unlike in Mendoza, supra, 52 Cal.4th
1057 and People v. Brady, supra, 50 Cal.4th 547, in which there was eyewitness
testimony about what had transpired prior to the shooting and the shooting itself, there is
simply nothing here that supports an inference of planning activity. To the contrary, to
the extent the jury may have believed the killing was the product of an argument about an
outdoor sleeping spot, it suggests a rash or impulsive act, not one informed by careful
thought and deliberation.
       The Attorney General argues Larumbe’s possession of a kitchen knife in advance
of the killing amply supports an inference of planning. (See People v. Manriquez (2005)
37 Cal.4th 547, 578 [“defendant, armed with a concealed firearm, left his room at the
motel, angrily confronted the victim, and fired several times, inflicting multiple wounds
to the victim’s chest”]; People v. Steele (2002) 27 Cal.4th 1230, 1250 [“[a]s to planning,
the jury could infer that defendant carried the fatal knife into the victim’s home in his
pocket, which makes it ‘reasonable to infer that he considered the possibility of homicide
from the outset’”].) However, Hernandez testified Larumbe always carried a knife with
him—sometimes a small knife and sometimes a kitchen knife. No evidence indicated he
had specifically armed himself in advance of his encounter with Moreno, in contrast to
the many cases in which possession of a deadly weapon was evidence from which
planning could be inferred. (See People v. Wright (1985) 39 Cal.3d 576, 593 & fn. 5
[“[a]fter confronting [victim], defendant returned to his trailer and obtained a loaded
weapon”; “‘[o]f course, use of a deadly weapon is not always evidence of a plan to kill[]’
[citation], but obtaining such a weapon in advance of a killing is one fact that has been
held to support an inference of planning activity”]; cf. People v. Wharton (1991)

                                              8
53 Cal.3d 522, 547 [defendant killed sleeping victim with hammer; evidence suggested
he either removed hammer from his toolbox in advance for purpose of killing victim or
                                                                                         7
retrieved it from garage after arguing with the victim and returning to his bedroom].)
Indeed, a knife, unlike a gun, has many legitimate uses for someone like Larumbe, who
often slept at Hollenbeck Park for up to three nights at a time. Absent any evidence
Larumbe used the knife to engage in illicit activity there, his possession of the knife is not
sufficient to support an inference he carried it because he planned to kill somebody. (See
People v. Morris (1988) 46 Cal.3d 1, 23 [defendant brought revolver to bathhouse during
early morning and “evidence strongly suggest[ed] that homosexual prostitution was
involved”; it was reasonable to infer defendant “‘considered the possibility of homicide
from the outset’”], disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th
535, 543, fn. 5.)
       Without citation or elaboration, the Attorney General also argues Larumbe’s
escape from the murder scene supported an inference of planning. In People v. Morris,
supra, 46 Cal.3d at pages 22-23 the Court did find the defendant’s escape, in conjunction
with his possession of a weapon in advance of the killing, substantial evidence supporting
an inference of planning activity. There, however, the defendant made a “rapid escape to
a waiting car” moments after the killing. In contrast, Larumbe left the murder weapon
next to Moreno’s head and either walked or rode his bicycle home in bloody clothing,
leaving a trail of blood that stopped, according to Detective Carillio, about a three-minute

7      People v. Steele, supra, 27 Cal.4th 1230, is readily distinguishable. Although the
court identified the defendant’s carrying of a knife into the victim’s home in his pocket as
a reasonable basis to infer he had considered the possibility of homicide in advance, the
inference was “much stronger in [that] case, because defendant had already stabbed
another woman to death. When a person stabs a woman to death, then leads another
woman into her apartment with a knife in the pocket, the jury can readily infer that the
person possessed the knife for the same purpose. Additionally, as the trial court
noted . . . , Richard Blakeslee testified that when he was speaking with ‘Lee Ann,’ whom
the jury could reasonably have found was the victim, he heard defendant say, ‘Put the
phone down or I'll kill you.’ This evidence suggests a planned killing.” (Id. at p. 1250.)
In the case at bar, there is nothing more than Larumbe’s routine possession of a knife,
which is insufficient standing alone to support an inference the killing was planned.

                                              9
drive or 15-minute walk from Larumbe’s apartment. There was no waiting car or other
means of quickly transporting him from the crime scene that might support an inference
he had planned to kill someone in the park. Given the undisputed fact that Larumbe
killed Moreno, it would be unreasonable to expect him simply to remain at the crime
scene.
               c. There was no evidence of motive that would reasonably support an
                  inference of premeditation
         Evidence of motive as defined in Anderson is similarly absent. “The second
Anderson factor refers not merely to a motive to kill, but to the kind of motive that
‘would in turn support an inference that the killing was the result of a “pre-
existing reflection” and “careful thought and weighing of considerations” rather than
“mere unconsidered or rash impulse hastily executed.”’” (People v. Boatman (2013)
221 Cal.App.4th 1253, 1266.) For example, the Supreme Court has found motive
supporting an inference of premeditation when there was evidence the victim could
implicate the defendant in a crime against a third person or even the victim. (See People
v. Elliot, supra, 37 Cal.4th at p. 471 [“jury could have construed the evidence as
establishing a motive, such as that defendant deliberately intended to kill Gandy to
eliminate her as a witness to the attempted robbery and torture”]; People v. San Nichols
(2004) 34 Cal.4th 614, 658 [“prosecution credibly advanced the theory that defendant
killed April because she was . . . the lone witness to his crime [(murder)] against Mary,
and her killing served to facilitate his escape”]; People v. Perez (1992) 2 Cal.4th 1117,
1126-1127 [“regardless of what inspired the initial entry and attack, it is reasonable to
infer that defendant determined it was necessary to kill Victoria to prevent her from
identifying him”; Victoria knew defendant “and obviously would have been able to
identify him”]; People v. Alcala, supra, 36 Cal.3d at p. 627 [“apparently there were no
eyewitnesses to the abduction except defendant and his victim”].)
         The Attorney General argues the jury could infer Larumbe’s motive to kill Moreno
from Hernandez’s testimony that Larumbe had said there was a dispute over a sleeping
spot. Even if Hernandez’s hazy recollection of having mentioned Larumbe’s comment to


                                             10
Detective Ramirez and Ramirez’s testimony confirming it are given full weight, in
conjunction with Hernandez’s unequivocal and repeated insistence Larumbe said Moreno
had confronted him, this evidence at most suggests Larumbe killed Moreno based on rash
impulse in response to the circumstances, not the careful thought and weighing of
considerations necessary to find premeditation and deliberation. (See People v. Boatman,
supra, 221 Cal.App.4th at p. 1268 [victim’s text messages to friend she had been fighting
with defendant and evidence of loud screaming argument “do not suggest this kind of
motive”].)
              d. The brutality of Moreno’s murder, standing alone, is insufficient to
                 support a conviction for first degree murder
       The Anderson Court explained evidence about the manner of killing that, in
combination with circumstantial evidence of planning and motive, might justify finding
an intentional killing was premeditated encompasses “facts about the nature of the killing
from which the jury could infer that the manner of killing was so particular and exacting
that the defendant must have intentionally killed according to a ‘preconceived design’ to
take his victim’s life in a particular way for a ‘reason’ which the jury can reasonably infer
from facts” of planning and motive. (Anderson, supra, 70 Cal.2d at p. 27.)
Notwithstanding the clear implication in Anderson that the manner of killing alone is
insufficient to support a conviction for first degree murder, the Supreme Court in
subsequent decisions has held “the method of killing alone can sometimes support a
conclusion that the evidence sufficed for a finding of premeditated, deliberate murder.”
(People v. Memro (1995) 11 Cal.4th 786, 863-864.) One such method is execution-style
murder. (See People v. Hawkins (1995) 10 Cal.4th 920, 957 [“In [People v. Bloyd (1987)
43 Cal.3d 333] the forensic evidence ‘described actions that were cold and calculated,’
shots to the head taken at extremely close range while one of the victims was on her back,
the other kneeling, with no bruises and lacerations to show a struggle. [Citation.]
Although the Bloyd court found evidence of motive as well, such evidence is not
indispensable to proving premeditation when the manner-of-killing evidence is so
compelling.”].)


                                             11
       In the instant case Moreno was repeatedly stabbed and hit or kicked, which,
according to the deputy medical examiner, may have taken “awhile.” There is little
question the jury’s verdict was influenced by the amount of time it may have taken
Moreno to stab and beat Larumbe: The jury asked soon after deliberations began whether
premeditation could “occur during the murderous act.” After being told to reread
CALCRIM No. 521, which instructed a deliberate decision to kill can be reached
“quickly,” the jury returned its verdict. The manner of Moreno’s murder, however,
without any evidence of motive or planning simply cannot support a finding of
premeditated and deliberate murder. (See Anderson, supra, 70 Cal.2d at p. 24 [“[i]t is
well established that the brutality of a killing cannot in itself support a finding that the
killer acted with premeditation and deliberation”]; People v. Alcala, supra, 36 Cal.3d at
p. 626 [“The fact that a slaying was unusually brutal, or involved multiple wounds,
cannot alone support a determination of premeditation. Absent other evidence, a brutal
manner of killing is as consistent with a sudden, random ‘explosion’ of violence as with
calculated murder.”].)
       None of the cases cited by the Attorney General—People v. San Nichols, supra,
34 Cal.4th at pages 658-659, People v. Pride (1992) 3 Cal.4th 195, 247-248, People v.
Elliot, supra, 37 Cal.4th at page 471—in which the victim sustained multiple wounds
supports the proposition the manner of killing here, without more, is sufficient for a
finding of premeditated and deliberate murder. In each of these cases there was also
evidence of planning and motive, evidence that is absent here. (See San Nichols, at
p. 658 [evidence defendant killed victim because “she saw him in the bathroom covered
in Mary’s blood and carrying a knife as he attempted to clean up, and defendant saw in
the bathroom mirror that [victim] had seen him at this critical juncture”]; Pride, at p. 247
[evidence of two possible motives including to “silence [victim] as a possible witness to
her own sexual assault”; testimony supported inference defendant waited until victim was
alone and then followed or forced her to secluded location in building]; Elliot, at pp. 457-
459, 471[bartender responsible for closing bar killed in storeroom where safe was kept;
evidence money was missing, defendant had armed himself with knife and surveyed bar

                                              12
before attack and waited until all customers left].) The infliction of multiple wounds was
simply additional evidence consistent with a finding of premeditation and deliberation.
Indeed, the deputy medical examiner also testified it was impossible to determine which
stab wounds occurred first—the fatal puncture of Moreno’s lung may have occurred
early—or whether any of the wounds were inflicted after he had already died. Because,
as the jury was instructed, premeditation must occur before the defendant has completed
the acts that caused death (see CALCRIM No. 521), any inference Moreno carefully
considered killing Larumbe during the beating, but before he was killed, is highly
speculative and insufficient to support the first degree murder conviction. (See Anderson,
supra, 70 Cal.2d at p. 25 [reviewing court must determine when prosecution relies on
circumstantial evidence “whether the proof is such as will furnish a reasonable
foundation for an inference of premeditation and deliberation [citation] or whether it
‘leaves only to conjecture and surmise the conclusion that defendant either arrived at or
carried out the intention to kill as the result of a concurrence of deliberation and
premeditation’”].)
       To be sure, the Supreme Court has repeatedly emphasized that Anderson, supra,
70 Cal.2d 15 “‘“did 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. Mendoza, supra, 52 Cal.4th at p. 1069; see People v.
Manriquez, supra, 37 Cal.4th at p. 577 [“Anderson does not require that these factors be
present in some special combination or that they be accorded a particular weight, nor is
the list exhaustive”]; People v. Welch (1999) 20 Cal.4th 701, 758 [“[a]s we have stated,
these guidelines ‘were formulated as a synthesis of prior case law, and are not
a definitive statement of the prerequisites for proving premeditation and deliberation in
every case’”]; People v. Thomas (1992) 2 Cal.4th 489, 517 [explaining Anderson “did not
refashion the elements of first degree murder or alter the substantive law of murder in any
way”].) Nevertheless, when affirming a first degree murder conviction, the Court has
inevitably identified at least some evidence of planning, motive and method of killing
that supports the finding of premeditation and deliberation, even if academic critics have

                                              13
complained these decisions blur any meaningful distinction between first degree murder
and express malice, second degree murder. (See, e.g., Mounts, Premeditation and
Deliberation in California: Returning to a Distinction Without a Difference (2002)
36 U.S.F. L.Rev. 261, 307-328; see generally Ferzan, Plotting Premeditation’s Demise
(2012) 75 Law & Contemp. Problems 83.)
       Viewing the entire record in the light most favorable to the People, there is
abundant evidence to support the jury’s verdict of murder but insufficient evidence to
support the finding Larumbe killed Moreno with premeditation and deliberation.
                                                                   8
Accordingly, pursuant to Penal Code section 1181, subdivision 6, we modify the
judgment by reducing Larumbe’s conviction to second degree murder (see People v.
Steger (1976) 16 Cal.3d 539, 553; People v. Boatman, supra, 221 Cal.App.4th at
p. 1274), with a commensurate reduction in his sentence from 26 years to life to 16 years
to life. (See Pen. Code, §§ 190, subd. (a) [sentence for second degree murder]; 12022,
subd. (b)(1) [one-year enhancement for personal use of a deadly weapon during
commission of a felony].)




8       Penal Code section 1181, subdivision 6, states “When the verdict or finding is
contrary to law or evidence, but if the evidence shows the defendant to be not guilty of
the degree of the crime of which he was convicted, but guilty of a lesser degree thereof,
or of a lesser crime included therein, the court may modify the verdict, finding or
judgment accordingly without granting or ordering a new trial, and this power shall
extend to any court to which the cause may be appealed.”

                                            14
                                      DISPOSITION
       The judgment is modified to reflect a conviction for second degree murder with a
sentence, including deadly weapon enhancement, of 16 years to life. The judgment is
further modified to reflect a restitution fine of $200 and a parole revocation fine (stayed)
of $200. As modified, the judgment is affirmed. The superior court is directed to prepare
a corrected abstract of judgment and forward it to the Department of Corrections and
Rehabilitation.



                                                  PERLUSS, P. J.


We concur:



              WOODS, J.



              ZELON, J.




                                             15
