Filed 5/28/14 P. v. Kumar CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                            F065487
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. BF130458A)
                   v.

NARINDER KUMAR,                                                                          OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. David R.
Lampe, Judge.
         Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Catherine Chatman and Julie A. Hokans, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-
         Defendant Narinder Kumar armed himself with two knives and attacked Moti Lal,
who was his brother, and Balwinder Singh, his brother’s business partner. Kumar
stabbed Lal and Singh many times, killing both men. He was convicted of two counts of
first degree murder and one count of assault with a deadly weapon on a third man. The
court imposed two counts of life without the possibility of parole, plus five years.
       Kumar now maintains that there was insufficient evidence to support the
conviction of the count alleging assault with a deadly weapon. He also argues that the
court improperly imposed a parole revocation restitution fine and that there is a clerical
error in the abstract of judgment. The People agree regarding the clerical error. We will
order the error corrected and otherwise affirm the judgment.
                        FACTS AND PROCEDURAL HISTORY
       The district attorney filed an information charging Kumar with three counts:
(1) premeditated murder of Lal (Pen. Code, § 187, subd. (a)1); (2) premeditated murder
of Singh (ibid.); and (3) assault with a deadly weapon against the third man, Meeka
Mander (§ 245, subd. (a)(1)). A multiple-murder special circumstance was alleged for
counts 1 and 2. (§ 190.2, subd. (a)(3).) For all counts, personal use of a deadly weapon,
namely a knife, was alleged. (§ 12022, subd. (b)(1).)
       At trial, Gurpal Singh Dhillon testified that Lal and Singh were partners in GMB
Ice Cream Warehouse. Dhillon was a partner of Lal and Singh’s in another business.
Dhillon was also an ice cream truck driver and bought his ice cream from GMB Ice
Cream Warehouse. Kumar was an ice cream truck driver as well. He complained to
Dhillon about his brother’s business practices and sometimes tried to persuade Dhillon to
join him in launching a venture that would undersell GMB Ice Cream Warehouse.
Kumar frequently told Dhillon, in an angry tone, that he had done much for Lal and
Singh in India, but they had done nothing for him in the United States. Dhillon finally
asked Kumar not to speak ill of his partners, and Kumar apologized.




       1Subsequent   statutory references are to the Penal Code unless noted otherwise.



                                             2.
       Dhillon testified that on December 25, 2009, at about 11:30 a.m., he was standing
outside the ice cream warehouse with Lal, Singh, and Mander when Kumar drove up in
his ice cream truck and walked inside. Lal went inside and Dhillon drove off in his truck.
       Mander remained outside talking with Singh. He testified that he soon heard
screams from inside. Singh ran in and Mander followed at a distance. Inside, Mander
saw Singh and Lal each restraining one of Kumar’s arms. Lal had a cut on his face and
Kumar had a knife in his hand. Singh yelled, “[H]e’s killing. He’s killing. He’s going to
kill.” Lal and Singh urged Mander to take the knife from Kumar. Mander “snatched the
knife from him.” As he did so, Kumar was “holding onto it very tight .…” As he took
the knife, Mander received a cut on the ring finger of his right hand. Mander and Lal
stepped away from Kumar. Mander threw the knife down among some wooden pallets.
Then Singh screamed, “[H]e has killed me. He has killed me.” Mander looked back and
saw Kumar stabbing Singh with another knife. Mander got scared and ran outside, where
he called 911.
       Dhillon, who had stopped at a gas station, received a cell phone call from Lal. Lal
was crying in pain, but did not respond when Dhillon spoke to him. Dhillon hung up and
tried to call Lal back, but Lal did not answer.
       The police received a 911 call from Lal, a recording of which was played for the
jury. After Lal told the operator there had been a stabbing and he needed an ambulance
and the police, the confrontation between Kumar and Lal was heard continuing in
Punjabi in the background:

       “Kumar: Go ahead, dog, call the police!

       “Lal: Ah, I’m dying!

       “[Operator]: Sir?

       “Lal: What did I ever do wrong to you?? Tell me!

       “Kumar: Sister-f___er! What did you ever do for me?



                                             3.
      “Lal: What did I ever do wrong?

      “[Operator]: Sir? Hello. Oh … 27 bravo four.

      “Lal: Inaudible.

      “[Operator]: It didn’t dump, I’m sorry. Hello? Hello?

      “Lal: Inaudible. What did I do?

      “[Operator]: Sir? Hello?

      “Kumar: Inaudible.

      “Lal: (Inaudible) Now I’m dead!

      “[Operator]: Hello?

      “Lal: Inaudible.

      “Kumar: You’re not dead yet!

      “Lal: Why are you killing me? At least I should know why you are doing
      this!

      “Kumar: You ‘sister’s vagina!’ [Punjabi expletive.] What didn’t you do!?

      “Lal: What did I do? Tell me?

      “[Operator]: Sir? Hello? Hello?

      “Lal: I’m already dead; why are you still stabbing me?

      “[Operator]: Hello, sir? Hello?

      “Lal: I’m dying! Stop now … Dying .…

      “Kumar: You’re not dead yet!

      “Lal: I’m dying .…

      “[Operator]: Sir …? Hello …? Hello …?”
      Police arrived at the warehouse and found Kumar, has hands and clothes covered
in blood, in the parking lot. Officer Claude Brooks testified that as Kumar was being
detained, he took a dagger sheath from his pants and threw it on the ground. Other

                                           4.
officers entered the warehouse and found Lal and Singh motionless on the floor with stab
wounds. One bloody knife was on the floor beside Singh and another was on top of
some pallets.
       A forensic pathologist testified about the autopsies he performed on Lal and
Singh. Singh had nine knife wounds on his head and neck, one on his chest, three on his
back, and two on his hand. His death was caused by multiple stab wounds. Lal had 33
knife wounds on his back and the back of his neck, 16 on his hands and arms, 11 on his
head and the front of his neck, 10 on his abdomen, and 8 on his chest. His death also was
caused by multiple stab wounds.
       The jury was shown a recording of a television news interview Kumar gave while
in jail. During the interview, Kumar said, “If I get the death penalty, so be it.” Asked
whether he was sorry, Kumar replied, “Obviously I am because it’s my brother … Singh
came to stop it and pulled the knife from my hand … then I pulled the other knife out.
The partner came and I hit him. There’s nobody else to blame.”
       In an effort to show that the killings were not murder but instead voluntary
manslaughter because of a mental disease or disorder, the defense presented medical
testimony by Dr. Joseph Wu, a professor of medicine and director of the Brain Imaging
Center at the University of California at Irvine. Dr. Wu testified that he ordered a
positron emission tomography (PET) scan of Kumar’s brain. The scan showed that the
activity in the temporal lobes of Kumar’s brain was “massively asymmetrical,” with the
left temporal lobe much less active than the right temporal lobe. Further, the activity of
the left striatum of Kumar’s brain was “almost entirely wiped out,” his occipital lobe was
damaged, and the ratio of activity between the cerebral cortex and the cerebellum was
below normal. Dr. Wu testified that these results were indicative of a traumatic injury to
the brain, resulting in extensive brain damage. The results were “among the more severe
abnormalities” Dr. Wu had seen in his career. The injury was to areas of the brain,
especially the temporal lobe, involved with emotional processing and aggression and


                                             5.
anger functions. It would tend to interfere with the accurate perception of reality and
lead to overreactions to slight provocations or insults. These overreactions could include
an outburst of violence, such as stabbing someone many times.
       Dr. Wu had been informed that Kumar had been in a motorcycle accident in the
mid- to late-1990’s. He opined that the damage revealed by the PET scan was consistent
with an injury sustained during that period, and that it would be possible for a person
with Kumar’s type of brain injury to function for that length of time after the injury,
except under conditions of stress requiring emotional control. He also opined that it was
not surprising that Kumar did not report any recollection of the accident, as people who
suffer brain injuries often do not recall being hurt.
       Dr. Wu testified about some of the contents of a report by Dr. Eugene Couture, a
psychologist who evaluated Kumar. Dr. Wu reviewed this report after analyzing the PET
scan results in order to correlate those results with other facts in Kumar’s medical history.
According to the report, Kumar told Dr. Couture that he had a history of disagreements
with Lal and Singh over Kumar competing with GMB Ice Cream Warehouse by buying
products from other suppliers and reselling them at lower prices. Someone had
threatened to shoot Kumar. Kumar was unwilling to go to the police because he had a
pending asylum request with the immigration authorities and Singh said he would have
Kumar deported. When Kumar went to the warehouse on December 25, 2009, he
believed Lal and Singh were going to beat him up and he armed himself with two knives
in order to defend himself. He said he stabbed Lal and Singh because he believed he was
going to be assaulted.
       The prosecution presented Dr. Couture as a rebuttal witness. Dr. Couture
interviewed Kumar, conducted a mental status evaluation and a cognitive screening, and
administered a small number of psychological tests. He concluded that, although Kumar
was not of high intelligence, he was “able to run his own life,” had “no diagnosable
mental disorder,” had no cognitive status problems, and was competent to stand trial.


                                              6.
Kumar told Dr. Couture he had never had any kind of traumatic head injury, had no
previous contacts with the mental health system, and had never taken any psychiatric
medications or felt any need to take them. Based on Kumar’s own reports, Dr. Couture
saw no indication that Kumar had any problem managing anger. Dr. Couture did not
order any brain scans.
       The jury found Kumar guilty as charged, finding the two murders to be in the first
degree. It also found the multiple-murder and weapon-use allegations true.
       The court imposed consecutive sentences of life without the possibility of parole,
plus one year each for the weapon enhancement, on counts 1 and 2. On count 3, the
court imposed the lower term of two years plus one year for the weapon enhancement.
                                      DISCUSSION
I.     Sufficiency of evidence of assault with a deadly weapon
       Kumar contends that the evidence was not sufficient to prove count 3, assault
upon Mander with a knife. Specifically, he argues the evidence did not establish that he
engaged in any willful act that could constitute that offense. In his view, the evidence
showed only that Mander took the knife away from him and got cut in the process.
       The standard of review for a challenge to the sufficiency of the evidence
supporting a conviction is well-established:

               “‘When considering a challenge to the sufficiency of the evidence to
       support a conviction, we review the entire record in the light most favorable
       to the judgment to determine whether it contains substantial evidence—that
       is, evidence that is reasonable, credible, and of solid value—from which a
       reasonable trier of fact could find the defendant guilty beyond a reasonable
       doubt.… We presume in support of the judgment the existence of every
       fact the trier of fact reasonably could infer from the evidence. [Citation.] If
       the circumstances reasonably justify the trier of fact’s findings, reversal of
       the judgment is not warranted simply because the circumstances might also
       reasonably be reconciled with a contrary finding. [Citation.] A reviewing
       court neither reweighs evidence nor reevaluates a witness’s credibility.
       [Citation.]’ [Citation.]” (People v. D’Arcy (2010) 48 Cal.4th 257, 293.)




                                               7.
       Mander’s testimony was that, as Lal and Singh held Kumar’s arms, Kumar
grasped the knife tightly as Mander struggled with Kumar to disarm him. The evidence
established that Kumar committed stabbings both before (when he wounded Lal’s face)
and after (when he killed the victims) this struggle. Given this context, the jury could
reasonably infer that Kumar’s intent was not merely to retain his grasp on the knife, but
to fight back against Mander in order to continue his onslaught. In light of that intent, the
jury could reasonably make the further inference that, as Kumar struggled, he
intentionally acted to resist Mander with at least the mental state necessary for assault:
“actual knowledge of those facts sufficient to establish that the act by its nature will
probably and directly result in the application of physical force against another.” (People
v. Williams (2001) 26 Cal.4th 779, 790.) Accordingly, we conclude that the evidence
was sufficient to prove that Kumar committed a willful act supporting the conviction of
assault with a deadly weapon.
II.    Parole revocation restitution fine
       As part of the sentence, the court imposed and suspended a parole revocation
restitution fine of $240. (§ 1202.45.) Kumar maintains that this fine was unauthorized
because his sentence precludes the possibility of parole. As we will explain, our
Supreme Court has held otherwise in the same type of situation.
       In People v. Brasure (2008) 42 Cal.4th 1037, the defendant was sentenced to
death and also to a determinate term of two years eight months. (Id. at p. 1049.) The
trial court imposed and suspended a parole revocation restitution fine under
section 1202.45. The Supreme Court rejected the defendant’s argument that the fine
should not have been imposed because his sentence precluded parole. It stated that the
determinate term carried a parole term by law (i.e., § 3000, subd. (a)(1)) and that every
such sentence is subject to a parole revocation restitution fine by the terms of
section 1202.45. Although it was unlikely the defendant would ever serve any of the




                                              8.
parole period, the imposition of the fine could not prejudice the defendant because it was
suspended. (People v. Brasure, supra, at p. 1075.)
       The Supreme Court distinguished People v. Oganesyan (1999) 70 Cal.App.4th
1178, on which Kumar relies. There, the defendant was sentenced to life without parole,
a 10-year firearm enhancement, and an indeterminate term of 25 years to life. (Id. at
p. 1181.) The Court of Appeal held that, because the sentence did not allow for any term
of parole, the trial court did not err when it declined to impose a parole revocation
restitution fine. (Id. at pp. 1183-1184.) The Supreme Court stated that Oganesyan did
not conflict with its holding because no determinate term was included in the base
sentences in that case, so no parole term was mandated for any sentence. (People v.
Brasure, supra, 42 Cal.4th at p. 1075.)
       People v. Battle (2011) 198 Cal.App.4th 50, on which Kumar also relies, is
indistinguishable from Oganesyan. Like Oganesyan and unlike Kumar, Battle received
no determinate term. (People v. Battle, supra, at p. 58.) Therefore, in light of the
Supreme Court’s discussion in Brasure, Battle does not support Kumar’s position.
III.   Clerical error
       The court imposed one-year enhancements for personal use of a knife on each of
the three counts. The parties agree that the abstract of judgment erroneously labels these
enhancements as applying to counts 1, 2, and 2. We will order the error corrected.




                                             9.
                                     DISPOSITION
       The trial court is directed to amend the abstract of judgment to show that the court
imposed one-year enhancements pursuant to section 12022, subdivision (b)(1), on each
of counts 1, 2, and 3, rather than one enhancement on count 1, two on count 2 and none
on




count 3. The trial court will forward the amended abstract to the appropriate correctional
authorities. The judgment is affirmed in all other respects.


                                                                _____________________
                                                                           Sarkisian, J.*

WE CONCUR:


 _____________________
 Poochigian, Acting P.J.


 _____________________
 Peña, J.




       *Judge  of the Superior Court of Fresno County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.



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