Filed 3/7/16 P. v. Lopez CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA

THE PEOPLE,                                                         D067393

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD254543)

ERNESTO LOPEZ, JR.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Louis R.

Hanoian, Judge. Affirmed.


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

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Peter Quon, Jr., Randall Einhorn and Stacy Tyler, Deputy Attorneys General, for Plaintiff

and Respondent.

         A jury convicted Ernesto Lopez, Jr. of attempted murder and assault by means of

force likely to produce great bodily injury. The jury found the attempted murder was

willful, deliberate and premeditated. The jury also found true allegations as to both
counts that Lopez used a deadly and dangerous weapon, a knife, and personally inflicted

great bodily injury upon the victim, Ivan Rivas. Lopez appeals, contending there is

insufficient evidence to support the jury's finding that the attempted murder was willful,

deliberate and premeditated. We affirm.

       Lopez also filed a petition for writ of habeas corpus (In re Ernesto Lopez, Jr.

(D068948)), which we ordered considered with this appeal. We deny the petition by

separate order. We also deny Lopez's motion to consolidate the appeal with the petition.

                              FACTUAL BACKGROUND

       In February 2014, Lopez, whose nickname was Boonie, and his next-door

neighbor, Brittnie Ross, were involved in a dating relationship. (Undesignated date

references are to the year 2014.) They broke up on February 10. Lopez spent the next

day in Tijuana, Mexico. That same day, Ross had gone to a restaurant where Lopez and

Rivas both worked. Eventually, Ross and Rivas went to Ross's house where they danced

and drank vodka together. Rivas became very intoxicated and fell asleep on the couch.

Rivas believed he may have kissed Ross but did not remember any other physical

intimacy.

       Lopez arrived at the house he shared with his parents around 2:30 a.m. that night.

He received several text messages from Ross. One message read, "I wish you were in

bed with me right now instead of this random person." Lopez texted back, "whatever."

He then got another message from Ross, stating "what's really fucked up is that you know

him." Lopez was aggravated by Ross's first message and became very upset by the

second.


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       Around 3:00 a.m., Lopez's father heard him leave the house and thought he

sounded upset. Lopez's mother asked him where he was going and Lopez responded, "I'll

be right back, mother." She thought he sounded calm and normal.

       Early that morning, Ross's roommate, Danica Bonner, heard glass breaking and

then 90 seconds to two minutes later, she heard Ross scream, "Boonie, no" and "Boonie,

stop it." Bonner went to Ross's room and saw a man on the floor bleeding. Bonner

called 911.

       When police and paramedics arrived, they found Rivas in the bedroom with

multiple wounds. He had nine stab wounds, which included injuries to his liver,

intestines, bladder, and colon. Although he did not suffer fatal injuries, Rivas underwent

multiple surgeries and had long-term health complications from the incident. The front

door to Ross's house had been broken off the door jamb and the glass on it shattered.

       A few weeks later, the United States Fugitive Task Force apprehended Lopez in

Mexico. After he was transferred to the San Diego Police Department, Lopez told an

officer that Ross's text message angered him so he "smashed in there and handled his

shit." Lopez admitted that he stabbed Rivas with a knife he found in Ross's bedroom.

Lopez told the officer he threw the knife out of the car window when he fled.

       Lopez's mother stated that she only had small knives in her house because she did

not like knives and did not use them. However, a detective who searched the Lopez

home after the stabbing testified that he found a drawer with multiple knives, including

large ones. Bonner testified that she was responsible for cleaning the house she shared




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with Ross, including cleaning Ross's room from "top to bottom" and Bonner was certain

that Ross did not keep a knife in the bedroom.

Defense

       Lopez testified on his own behalf. He stated that on February 11, he went to

Tijuana to see his brother. Lopez and his brother engaged in a physical altercation.

When he returned to the United States, Lopez was emotional and under the influence of

alcohol, Xanax, cocaine and methamphetamine.

       Lopez testified that Ross's text messages made him feel "betrayed in a way" and

"curious" about the man Ross was with. Thus, Lopez went to Ross's house "to check out

who was in there." Lopez forced his way into Ross's house by breaking the front door,

which was typically difficult to open. He kicked the door several times and had to use

quite a bit of force to get it open. Lopez denied going to Ross's house intending to kill

her companion.

       When he entered Ross's bedroom, Lopez saw a man who "seemed familiar."

Lopez admitted stabbing Rivas, but did not have a specific recollection of the incident

because he was in shock and everything happened quickly. Lopez claimed he was

provoked by Ross's text messages and "something just took over [him] and [he] just

acted." According to Lopez, anyone in his situation would have done the same thing. He

further explained that "it's not just, 'oh, I got provoked. I'm jealous. I'm going to go stab

[Rivas].' It's not that." Rather, Lopez stated he was in a bad mood from other things that

occurred over the years.




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                                        DISCUSSION

                                    I. Standard of Review

       "We do not distinguish between attempted murder and completed first degree

murder for purposes of determining whether there is sufficient evidence of premeditation

and deliberation." (People v. Herrera (1999) 70 Cal.App.4th 1456, 1462-1463, fn. 8

(Herrera).) " 'Review on appeal of the sufficiency of the evidence supporting the finding

of premeditated and deliberate murder involves consideration of the evidence presented

and all logical inferences from that evidence . . . . Settled principles of appellate review

require us to review the entire record in the light most favorable to the judgment below to

determine whether it discloses substantial evidence . . . from which a reasonable trier of

fact could find that the defendant premeditated and deliberated beyond a reasonable

doubt.' " (Id. at p. 1463.)

       Further, it is the exclusive function of the trier of fact to assess the credibility of

witnesses. (People v. Alcala (1984) 36 Cal.3d 604, 623; People v. Lopez (1982) 131

Cal.App.3d 565, 571.) We will "not substitute our evaluation of a witness's credibility

for that of the fact finder." (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; see also

People v. McLead (1990) 225 Cal.App.3d 906, 917.) It is not our function to reweigh the

evidence. (People v. Perry (1972) 7 Cal.3d 756, 785.) Thus, a judgment will not be

overturned even if we might have made contrary findings or drawn different inferences,

as "[i]t is the jury, not the appellate court, that must be convinced beyond a reasonable

doubt." (People v. Perez (1992) 2 Cal.4th 1117, 1126.)




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                               II. Sufficiency of the Evidence

       Lopez contends there is insufficient evidence to support the jury's finding that the

attempted murder was willful, deliberate and premeditated. We reject this argument.

       The crime of attempted murder requires proof of the specific intent to kill coupled

with the commission of a direct but ineffectual act toward accomplishing the intended

killing. (People v. Smith (2005) 37 Cal.4th 733, 739.) For purposes of sentence

enhancement, the prosecution may seek a jury finding that an attempted murder was

willful, deliberate, and premeditated. (Pen. Code, § 664, subd. (a)); People v. Bright

(1996) 12 Cal.4th 652, 669.)

       There are "three categories of evidence for a reviewing court to consider with

respect to premeditation and deliberation: (1) prior planning activity; (2) motive; and

(3) the manner of killing. These factors are 'not a sin qua non to finding first degree

premeditated murder, nor are they exclusive.' " (Herrera, supra, 70 Cal.App.4th at

pp. 1462-1463, fn. omitted.) " ' "When evidence of all three categories is not present, 'we

require either very strong evidence of planning, or some evidence of motive in

conjunction with planning or a deliberate manner of killing.' " ' " (People v. Prince

(2007) 40 Cal.4th 1179, 1253.) Further, "[p]remeditation 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.

Memro (1995) 11 Cal.4th 786, 863.)




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       Here, the jury could have reasonably found that Lopez had a motive to kill Rivas.

After receiving Ross's text messages about being in bed with another man, Lopez felt

betrayed and upset. As a result, Lopez decided to "handle [Rivas's] shit." This evidence

was sufficient for a motive finding.

       The jury could also have reasonably found that Lopez was deliberate in his

manner of killing. There was no evidence of a struggle. Rather, the evidence showed

that Rivas was passed out when Lopez marched into Ross's home and stabbed Rivas nine

times. Lopez continued to stab Rivas despite Ross's demands for Lopez to stop. Rivas

had injuries to his liver, intestines, bladder, and colon. The wounds were deep enough

that Rivas's intestines began to protrude from one of the puncture wounds on his

abdomen. (See People v. Pride (1992) 3 Cal.4th 195, 247 ["A violent and bloody death

sustained as a result of multiple stab wounds can be consistent with a finding of

premeditation."].)

       Lastly, contrary to Lopez's argument, the jury could also have reasonably found

Lopez planned to kill Rivas. The evidence showed that Lopez left his house to find out

who Ross was with, kicked Ross's front door repeatedly with force to gain entry, and

obtained a knife before stabbing Rivas nine times. (See People v. Millwee (1998) 18

Cal.4th 96, 134 [protracted and elaborate planning activity is not required for finding of

sufficient evidence of premeditation].) Lopez contends there was no evidence that he

armed himself with a knife before he entered Ross's house. Although there was

conflicting evidence about where Lopez obtained the knife, the jury could have

reasonably inferred that Lopez brought the knife with him to Ross's home. Lopez told


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officers that he found the knife in Ross's bedroom and testified that it just "popped" into

his hand. His mother claimed she did not like knives and only had small ones. An

officer, however, found a kitchen drawer full of cutting utensils, including large knives,

in the Lopez home. Further, Bonner, who was responsible for cleaning Ross's room and

claimed to do a thorough job at it, testified that she had never seen a knife in Ross's

bedroom. Lopez also confirmed that he had never seen a weapon in Ross's room. The

jury was entitled to discredit Lopez's and his mother's testimony. While the evidence

may have supported a contrary finding, it is not our role to reweigh the evidence where

the circumstances reasonably justify the trier of fact's findings. (People v. Albillar (2010)

51 Cal.4th 47, 60.)

       Based on the foregoing, we conclude there was substantial evidence to support the

jury's finding of willfulness, premeditation and deliberation.

                                      DISPOSITION

       The judgment is affirmed.


                                                                             McINTYRE, J.

WE CONCUR:


BENKE, Acting P. J.


O'ROURKE, J.




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