Filed 12/17/15 P. v. Lawrence CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B259517

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA410507)
         v.

DERYKE LAWRENCE,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa B.
Lench, Judge. Affirmed in part, reversed in part, and remanded.
         Tanya Dellaca, under appointment by the Court of Appeal for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Attorney General, Timothy M. Weiner and Eric J. Kohm, Deputy Attorneys
General for Plaintiff and Respondent.
         A jury convicted defendant and appellant Deryke Lawrence (defendant) of the first
degree murder of Anita Henderson in violation of Penal Code section 187,1 subdivision
(a); he was also convicted on a separate charge of grand theft for unauthorized use of an
ATM card. There were no witnesses at trial who saw or heard defendant kill Henderson,
his next-door neighbor. The circumstantial evidence allowed the jury to infer that
defendant entered Henderson’s house without permission and to conclude that at some
point while on the property he struck her head with such force as to fracture her skull and
kill her. We consider whether the circumstantial evidence is sufficient to support the first
degree murder conviction on either a felony murder theory or as a willful, deliberate, and
premeditated killing. We also decide claims of related instructional error, and error in
finding a prior “strike” conviction true for sentencing purposes.


                                     BACKGROUND
         Trial of defendant on the murder and grand theft charges took place over nine days
in June and July of 2014. The jury deliberated for three and a half hours and returned
guilty verdicts on both charged offenses. The evidence at trial established the following
facts.
         Defendant worked as a handyman for Ray Ector for approximately two years.
Ector lived with Henderson (the victim) in a house at 2121 South Redondo Boulevard in
Los Angeles. Ector was also the temporary caretaker of a vacant house next door at 2115
South Redondo Boulevard (2115 Redondo). In the fall of 2012, defendant told Ector he
was homeless and didn’t have a place to live. Ector allowed defendant to live at 2115
Redondo.
         Defendant knew Henderson for as long as he had been working for Ector.
According to Ector, during the time that defendant lived next door, Henderson and
defendant became friendly. They would talk together in Henderson’s home. Defendant
also ran errands for her.

1
         Undesignated statutory references that follow are to the Penal Code.

                                              2
      On November 1, 2012, defendant’s car was impounded and defendant sought and
obtained the temporary use of a pickup truck from Ector.2 Defendant’s stated reason for
borrowing the truck was to move some furniture for his girlfriend, Arlene Anderson.
After getting the truck, defendant met Anderson. She gave defendant her ATM card and
permission to withdraw $40 for gas. Over the next several days, defendant withdrew
about $1,200 from Anderson’s bank account without her knowledge or permission.
These withdrawals form the basis of defendant’s grand theft conviction.
      On November 5, when defendant had not returned the truck to Ector, Ector asked
where it was. Defendant replied that he would bring it back when he was done with it.
Two days after that, on November 7, defendant told Ector that the truck had been
impounded. Ector was scheduled for a medical procedure the next day and he spent the
evening at the house of a friend who could take him to the procedure early the next
morning. At some point that evening, Ector called the sheriff’s department and learned
that his truck had not been impounded as defendant claimed. Ector’s son Michael went
to defendant’s house, confronted him about the truck, and told him he would have to
move out of 2115 Redondo if he did not return the truck by the next day.
      Ector returned home around 3:30 the next afternoon, November 8, and
encountered defendant coming out of the driveway of 2115 Redondo. Ector described
defendant as looking “clean,” meaning he was not wearing construction clothes.
Defendant wore jeans and a dark hooded sweatshirt. Ector demanded defendant return
the truck, and defendant agreed to take him to the truck. Once defendant was in Ector’s
vehicle, however, defendant convinced Ector to take him instead to an ATM, and then to
take him back to 2115 Redondo. Ector thereafter went to a neighbor’s house.




2
       At trial, the prosecution contended the circumstances concerning defendant’s use
of Ector’s truck provided evidence of a potential motive for Henderson’s murder.
Accordingly, the prosecution spent significant time during trial introducing evidence
about the truck and related events that occurred prior to Henderson’s death on
November 8.

                                            3
       Unbeknownst to Ector, defendant put his belongings into the truck, which had
been hidden in the area, and drove off. He abandoned the truck at about 5:00 p.m., when
it stalled in an intersection. Ector’s son Michael saw the truck later as he drove to Ector’s
house and alerted law enforcement to the truck’s presence.
       Meanwhile, Ector returned to his own house. When he went inside, he discovered
Henderson’s dead body on the patio. She was wearing only a bra and socks. A hose was
positioned so that water was running over her body. There was disarray and blood in
Ector’s bedroom, but nothing else was out of place in the house and nothing was missing.
Ector called 911.
       Criminalists from the Los Angeles Police Department (LAPD) arrived at
Henderson’s house and took many photographs of the crime scene, including of Ector’s
bedroom. The photographs show substantial blood spatter on the wall. One section of
blood spatter near the floor was over three feet wide, and a second section was just under
three feet wide and about five feet above the floor.
       There was no sign of forced entry at Henderson’s house. The door from the den to
the patio and backyard was open as usual to allow Ector and Henderson’s dogs to come
and go. The backyard was completely fenced. The front door was double-locked, and
the gate to the driveway was also locked. Only Ector and Henderson had keys to the
locks. Ector testified that it was unusual for the doors to be locked. He also testified that
on November 7—the day before the murder—Henderson said she wanted the front door
locked because defendant had done “some mean things to her.” Ector was not asked to
elaborate about what the “mean things” were.
       An investigator with the coroner’s office placed Henderson’s time of death at
1:24 p.m. plus or minus two hours. The deputy medical examiner who performed the
autopsy did not believe that the time of death could be so precisely pinpointed, stating
that he would rely on the timeline of events established by the investigation of the crime
as the most precise way to determine the window of time in which Henderson died.
       The deputy medical examiner determined that Henderson died from blunt force
trauma to the head. The examiner explained that there was an H-shaped fracture across

                                              4
the left side of her skull, a large bruise over the eye and cheek area on the left side of her
face, and a large laceration over her left eyebrow. Henderson also suffered contusions on
the surface of the right side of her brain. The examiner observed small bruises on
Henderson’s arm and her legs that he believed were consistent with finger pressure.
Henderson’s body bore no signs of defensive wounds, that is, wounds that she would
have suffered attempting to fend off an attack. The coroner’s office investigator believed
that a large bruise on the back of Henderson’s left hand could be consistent with an
offensive wound, but the examiner saw no definite signs of offensive wounds. The
deputy medical examiner offered no opinion on whether Henderson died immediately
from the blunt force trauma or survived for a period of time.
       During the course of their investigation, the police searched Ector’s truck that
defendant had abandoned in the intersection. Investigators found a sweatshirt that
appeared similar to the one worn by defendant during his drive to the ATM with Ector.
A portion of the left cuff of the sweatshirt tested presumptively positive for blood and
had DNA consistent with Henderson’s DNA. Defendant and Henderson were major
contributors to DNA recovered in a general swab of the sweatshirt. Defendant’s DNA
was not found on any items obtained from the victim or the crime scene, including swabs
in a sexual assault kit.
       While at the scene of the crime, police photographed a white plastic chair in the
yard of 2115 Redondo next to the wall separating the property from Henderson’s house.
According to Ector, the chair was normally on the porch; he acknowledged, however, that
he last visited 2115 Redondo two weeks before the murder and did not know when the
chair might have been moved.3
       Defendant did not have phone service at the time of the murder. A witness at trial
who was working construction next door to Henderson’s house testified that in the


3
       During summation, the prosecution argued the presence of the chair near the fence
permitted the jury to infer that defendant used the chair to climb over the fence and enter
Henderson’s house through the open den door to use her phone without her permission.


                                               5
morning on November 8 (before Henderson was killed) defendant asked to use his cell
phone to make a call. The prosecution admitted into evidence phone records for the two
landlines at Henderson’s house. The call records indicated that several local calls were
made on the day of the killing from Henderson’s line to a junk car dealer, beginning at
12:22 p.m. The phone number called for the junk car dealer matched the phone number
on a business card in defendant’s possession when he was arrested. Henderson’s landline
was also used to call the cell phone number for Anderson (defendant’s girlfriend) at
12:30 p.m. Significantly, the records also showed a 32-second call from Henderson’s
landline to Ector’s cell phone at 1:11 p.m.4 Beginning at 1:29 p.m., several more calls
were placed to the junk dealer from Ector’s landline. After 2:07 p.m., there were no
further outgoing calls until 5:03 p.m. The AT&T representative who testified at trial was
not asked whether the local calls placed by defendant resulted in any additional charges
to Henderson’s telephone bill.
       Approximately two weeks after Henderson was killed, defendant called Anderson
and asked if she knew what happened to “Miss Anita” (i.e., Henderson). Anderson said
no and defendant told her “they”—he did not say who—“beat her up.” Anderson
reported the conversation to the police, and later that same day, the police arrested
defendant.
       In a recorded post-arrest interview, police detectives told defendant they were
investigating Henderson’s murder. Defendant said, “I know Anita but I don’t know no
Henderson.” When detectives again told defendant that Henderson had been murdered,
he responded, “And?” The police told defendant they wanted to know what he knew
about “Anita.” They suggested it was suspicious that defendant “disappeared” after
being at Henderson’s house earlier that day, and asked defendant if he could explain.
Defendant told the police that Henderson “was like a sister to me.” He denied knowing
what happened to her. But he did admit that he used Henderson’s phone on the day of

4
       The prosecution focused on this call in closing argument, contending the jury
could infer Henderson, and not defendant, made this call in an effort to warn Ector of
something, perhaps that defendant was planning to sell Ector’s truck.

                                             6
the murder, claiming that he made calls outside on the porch with her permission.
Defendant told the police that he might have called Anderson and he admitted he was
“calling people about . . . the car and the truck trying to get . . . a value on that.”


                                        DISCUSSION
       Defendant contends (1) there is insufficient evidence to support his conviction for
first degree murder; (2) the trial court should have instructed the jury on the lesser
included offense of involuntary manslaughter; (3) the trial court should not have given a
jury instruction on alternative theories of murder, CALCRIM No. 548; and (4) the
evidence introduced of his prior Alabama robbery conviction did not establish the
conviction qualified as a “strike” conviction under California law.
       Under the applicable standard of review, we conclude there was sufficient
evidence, although only just, to allow the jury to find first degree murder on a willful,
deliberate, and premeditated theory. We are nevertheless compelled to reverse because
we cannot conclude the jury based its first degree finding on that theory rather than the
prosecution’s felony murder theory—which was legally inadequate. We reject
defendant’s contention that an involuntary manslaughter instruction was warranted. We
need not reach the question of whether giving the CALCRIM No. 548 instruction was
error. Lastly, the People concede, and we agree, that there is insufficient evidence to
prove defendant’s Alabama conviction was a “strike” conviction.
       We therefore reverse the first degree murder finding and the trial court’s true
finding on the prior conviction allegation. We affirm the grand theft conviction. We
remand for further proceedings.


                                                I
                                     Murder Conviction
       The prosecution urged the jury to find defendant guilty of first degree murder
under either of two theories: commission of a felony murder in the course of a burglary
or, alternatively, commission of a willful, deliberate, and premeditated murder. The

                                                7
primary difference between the two theories was that under the felony murder theory,
defendant’s use of Henderson’s phone on the day of the murder was characterized as a
theft but under the premeditation and deliberation theory it was not.
       We have no difficulty concluding there was sufficient evidence of malice to
support a second degree murder conviction. But first degree murder is not so
straightforward. As to felony murder, the prosecution presented the jury with a theory of
the underlying felony that was legally inadequate; compounding the problem, the jury
instruction the trial court gave on the elements of the underlying felony, while legally
correct, had no application to the facts of the case. As to the prosecution’s alternate
theory that defendant killed Henderson willfully, deliberately, and with premeditation,
the evidence was not strong but it was minimally sufficient under the deferential standard
of review that governs our review. The jury was therefore left with a legally adequate
and a legally inadequate theory of first degree murder. Applying Supreme Court
precedent, we conclude reversal is required.


       A.     Malice Aforethought
       Murder is the unlawful killing of another person with malice aforethought.
(§ 187.) Malice may be express or implied, or where the felony murder doctrine applies,
it is necessarily imputed to the defendant. (§ 188; People v. Chun (2009) 45 Cal.4th
1172, 1184.) A defendant acts with express malice when he intends to kill. A defendant
acts with implied malice when he willfully commits an act, the natural and probable
consequences of which are dangerous to human life, knowing the act is dangerous to
human life and with conscious disregard for human life. (People v. Gonzalez (2012) 54
Cal.4th 643, 653.)
       Defendant hit Henderson in the head with considerable force. The coroner’s
report shows a large “H” shaped fracture on one side of her skull which caused
contusions to the opposite side of the brain. In addition, she had a possibly broken nose,
bruises and cuts on her face, and bruising around her eyes. Photos taken in a bedroom
show over three feet of blood spatter over one wall, and large amounts of blood on items

                                               8
on the floor underneath the spatter and on the front of the desk perpendicular to the
spattered wall. The force required to produce such results was necessarily extreme force.
The force and resulting injuries are sufficient to demonstrate defendant acted with at least
implied malice. (People v. Dellinger (1989) 49 Cal.3d 1212, 1222; People v. Toth (1960)
182 Cal.App.2d 819, 826 [malice may be shown by the extent and severity of the injuries
inflicted upon the victim]; see People v. Lashley (1991) 1 Cal.App.4th 938, 945.) When
combined with evidence of motive and the other circumstantial evidence, the jury was
also entitled to find express malice. (People v. Smith (2005) 37 Cal.4th 733, 742.)


       B.     First Degree Murder
       A murder is first degree murder if it is committed during the commission of
certain specified felonies, including burglary. (§ 189.) An unlawful killing with malice
aforethought is also first degree murder if it is willful, deliberate, and premeditated.
(§ 189.) Here, the prosecutor argued both theories to the jury. Defendant contends the
first degree murder conviction cannot be sustained under either theory.


              1. Felony murder
       A killing committed in the course of a burglary is automatically first degree
murder under the felony murder rule. (§ 189.) A burglary occurs when a person
unlawfully enters a building with the intent to commit theft or any felony therein.
(§ 459.)
       The prosecution’s theory of burglary as the predicate for felony murder was that
defendant intended to commit a theft when entering Henderson’s house because he
intended to use Henderson’s phone to make calls without her authorization. During
summation, the prosecutor stated, “[I]t doesn’t matter what you use in a house. If it’s a
residence, that makes it first degree. And if you’re using something inside without
permission, that constitutes theft.” During rebuttal argument, the prosecution returned to
the same point, arguing, “[U]sing a phone without permission in someone’s house is
absolutely a theft.”

                                              9
       On appeal, respondent defends the description of theft that the prosecution offered
at trial. Respondent’s brief asserts: “Appellant’s . . . argument that use of a phone to
make local calls does not constitute theft is . . . preposterous. Entry with the intent to use
a home’s utilities may form the basis of a burglary conviction. (People v. Martinez
(2002) 95 Cal.App.4th 581, 584-585 [the defendant was found guilty of burglary after he
entered a home with the intent to take a shower] (Martinez); see also People v. Dingle
(1985) 174 Cal.App.3d 21, 29 [entry for the purpose of making long-distance telephone
calls] (Dingle).)”
       There was ample evidence at trial that defendant used Henderson’s telephone to
make local calls. The jury was also entitled to infer that defendant used Henderson’s
phone without permission (indeed, that he entered Henderson’s home without
permission) based on Ector’s testimony that defendant had done mean things to
Henderson and she wanted to keep the doors locked, combined with the placement of the
plastic chair near the wall separating 2115 Redondo and Henderson’s house. But the
prosecution’s assertion that the mere use of a phone without permission constitutes theft
was an oversimplification and invited the jury to convict on a legally inadequate theory of
the predicate burglary.
       Defendant’s unauthorized use of Henderson’s phone to make local telephone calls
was not a theft from her. Theft by larceny requires that a thing taken have some intrinsic
value, and the thief must intend to deprive the owner permanently of property or to
deprive the owner of a major portion of the property’s value or enjoyment. (People v.
Franco (1970) 4 Cal.App.3d 535, 542 [intrinsic value]; see also People v. Avery (2002)
27 Cal.4th 49, 58 [intent to deprive the owner permanently of the property or to deprive
the owner of a major portion of the property’s value or enjoyment].) There was no
evidence at trial that defendant’s use of Henderson’s phone to make local calls resulted in
any additional charges to Henderson’s phone bill or that defendant intended to
permanently deprive her of any property.
       People v. Martinez (Martinez) therefore provides no support for the prosecution’s
overbroad theory of theft (“if you’re using something inside without permission, that

                                              10
constitutes theft”). In Martinez, the defendant entered the home to use “soap, shampoo
and hot water.” (Martinez, (2002) 95 Cal.App.4th 581, 585-586.) The Court of Appeal
held that the use and consumption of these items was a permanent taking of personal
property, albeit property of very slight value, that would qualify as theft by larceny.5
(Ibid.) That is not true based on the evidence the jury had—or more precisely, did not
have—concerning defendant’s use of the telephone. Martinez does not help respondent.
          Respondent also relies on the Fourth District Court of Appeal’s decision in People
v. Dingle (Dingle) to argue that the prosecution’s articulation of burglary’s theft element
was correct. Respondent’s reliance on Dingle, however, is similarly misplaced. The case
stands only for a narrower proposition: unauthorized use of a telephone to make calls
billed to a subscriber can satisfy the theft element of a burglary charge if a jury is
properly instructed on what it must find, including an intent to defraud the “person”
providing telephone service.
          The defendant in the Dingle case was convicted, among other offenses, of first
degree burglary with intent to commit theft. (Dingle, supra, 174 Cal.App.3d at p. 24.)
The theft alleged was a long distance call Dingle made without the victim’s consent. (Id.
at p. 29.) Dingle argued on appeal that the unauthorized call was not a theft, or if it was a
theft, that the jury instructions omitted an essential element: intent to permanently
deprive the victim of possession of property. (Id. at pp. 24, 29.) The Court of Appeal
reversed the judgment of conviction on other grounds but, “for purposes of guiding the
trial court on retrial,” addressed the issue of whether Dingle’s use of the phone to make a
long distance call satisfied the intention-to-commit-a-theft element of burglary. (Id. at
p. 24.)
          The Court of Appeal concluded that an intention to commit any theft offense
described in section 484, subdivision (a)—not just larceny—can satisfy the elements of
burglary. (Dingle, supra, 174 Cal.App.3d at p. 30 [“the word ‘larceny’ in section 459

5
      Theft of electricity, gas, and water services—but not telephone services—are also
punishable pursuant to section 498, entitled “Theft of utility services; definitions;
presumptions; penalties.” (§ 498, subd. (a)(2) [definition of “utility”].)

                                              11
[the burglary statute] shall now be read and interpreted as if the word ‘theft’ were
substituted”]; see also §§ 484, 490a.) The court stated that larceny requires an intent to
permanently deprive a person of property, but certain other theft offenses do not.
(Dingle, supra, at p. 30.) Theft by false pretenses is one such form of theft,6 and the
Dingle court held that section 502.7—which punishes theft of telephone service by
fraud—is akin to theft by false pretenses and therefore sufficient to satisfy the theft
element in an allegation of burglary. (Ibid.) The Court of Appeal stated that on remand
for retrial of Dingle, “the court need instruct [the jury] only in the language of section
502.7.” (Ibid.)
       The statute cited by the Dingle court, section 502.7, provides: “Any person who,
knowingly, willfully, and with intent to defraud a person providing telephone or telegraph
service, avoids or attempts to avoid, or aids, abets or causes another to avoid the lawful
charge, in whole or in part, for telephone or telegraph service” by any of several specified
means is guilty of a misdemeanor or a felony.7 (§ 502.7, subd. (a).) Here, there was no




6
        Theft by false pretenses requires proof that “1. The defendant knowingly and
intentionally deceived a property owner [or the owner’s agent] by false or fraudulent
representation or pretense; [¶] 2. The defendant did so intending to persuade the owner
[or the owner’s agent] to let the defendant [or another person] take possession and
ownership of the property; [¶] AND [¶] 3. The owner [or the owner’s agent] let the
defendant [or another person] take possession and ownership of the property because the
owner [or the owner’s agent] relied on the representation or pretense.” (CALCRIM No.
1804; People v. Wooten (1996) 44 Cal.App.4th 1834, 1842.) Theft by false pretenses
must also be corroborated by either a false writing or false token, a note signed or
handwritten by the defendant, or testimony from two witnesses or testimony from one
witness plus other evidence supporting the conclusion that the defendant made the
pretense. (CALCRIM No. 1804.)
7
        Under section 502.7, the theft of telephone service by fraud is a theft from the
service provider, here AT&T, not the subscriber. One means of such theft specified in
the statute occurs where a person “charge[s] the service to an existing telephone number
or credit card number without the authority of the subscriber thereto or the lawful holder
thereof.” (§ 502.7, subd. (a)(1).) Another specified means occurs where a person uses
“any other deception, false pretense, trick, scheme, device, conspiracy, or means,

                                             12
evidence, as there was in Dingle, that defendant’s use of Henderson’s phone to make
local calls resulted in charges billed to the victim. More important, the trial court gave no
jury instruction on the elements of a section 502.7 theft by fraud. Nor did the prosecution
argue theft by fraud under section 502.7 or even a general theory of theft by false
pretenses as the basis for the burglary predicate for felony murder. Instead, the
prosecution made the blanket statement that intending to use the phone was an intention
to commit a theft.
       The instructions the trial court did give on the elements of theft did not cure the
problem with the prosecution’s oversimplified theory of theft—in fact, the instructions
could have only served to confuse matters. The court’s instructions correctly informed
the jury that defendant must have intended to commit a theft when entering a building,
and that to decide whether defendant intended to commit theft, the jury should refer to the
separate instructions given by the court. The only jury instruction the trial court gave on
the elements of theft was CALCRIM No. 1800. That instruction provides that the People
must prove “1. The defendant took possession of property owned by someone else; [¶]
2. The defendant took the property without the owner’s consent; [¶] 3. When the
defendant took the property he intended to deprive the owner of it permanently; [¶]
AND [¶] 4. The defendant moved the property, even a small distance, and kept it for
any period of time, however brief.”
       CALCRIM No. 1800 had no application to the facts relevant to felony murder. It
defines the offense of theft by larceny. (People v. Beaver (2010) 186 Cal.App.4th 107,
119, 122 [“This instruction applies to situations where a defendant physically takes
property from another’s actual or constructive possession”].) The trial court correctly
gave this instruction in connection with defendant’s theft of money from Anderson, the
grand theft offense charged in count two of the information. The theft by larceny
instruction, however, was not appropriate for the prosecution’s felony murder theory



including the fraudulent use of false, altered, or stolen identification.” (§ 502.7, subd.
(a)(5).)

                                             13
because no physical property was taken from Henderson’s house nor was there any
evidence that defendant intended to permanently deprive Henderson of any property.
       “While a general verdict of guilt may be sustained on evidence establishing any
one of the consolidated theft offenses [citation], the offense shown by the evidence must
be one on which the jury was instructed and thus could have reached its verdict.”
(People v. Curtin (1994) 22 Cal.App.4th 528, 531; accord, People v. Kunkin (1973) 9
Cal.3d 245, 250-251 [because jury instructed only on theft by larceny, court could not
look to embezzlement theory not before the jury in seeking to reconcile jury verdict with
the substantial evidence rule]; People v. Beaver, supra, 186 Cal.App.4th at p. 123.) Here,
the theft instruction given to the jury did not include the elements of a section 502.7 theft,
so even if there were sufficient evidence to support such a charge, the failure to instruct
on those elements violated defendant’s right to have the charges decided by the jury.
(People v. Beaver, supra, at p. 125 [jury was instructed on theft by larceny; if defendant
committed theft, it was theft by false pretenses].) The jury was accordingly left with a
legally inadequate theory of burglary and therefore felony murder, uncured by any
instruction from the trial court.


       2.     Willful, deliberate, and premeditated murder
       The prosecution’s alternate theory of the murder was that defendant killed
Henderson willfully, deliberately, and with premeditation. Because there were no
witnesses to the killing, the prosecution was forced to rely entirely on circumstantial
evidence. The prosecution contended the murder was premeditated by focusing on the
testimony concerning defendant’s deteriorating relationship with Henderson shortly
before the murder; the events on the day of the murder, including the phone calls from
Henderson’s telephone line; and the manner in which defendant killed Henderson, as
established by the forensic evidence.8



8
       The prosecution argued in closing: “Was [Henderson’s] murder willful, deliberate
and premeditated? That bludgeoning. That’s not an accident. The wounds and that wall,

                                             14
       “‘“[W]e 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.” [Citation.] We determine “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.”
[Citation.] In so doing, a reviewing court “presumes in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence.”
[Citation.]’” (People v. Williams (2015) 61 Cal.4th 1244, 1281; see also People v.
Combs (2004) 34 Cal.4th 821, 849 [“An appellate court must accept logical inferences
that the jury might have drawn from the evidence even if the court would have concluded
otherwise”].) The same standard of review applies where the prosecution relies on
circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.) Where the
circumstances reasonably justify the jury’s findings, the opinion of the Court of Appeal
that the circumstances could be reconciled with a contrary finding does not require
reversal. (Id. at pp. 792-793.)
       “In [the context of first degree murder], ‘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.]” (People v. Mayfield (1997) 14 Cal.4th 668, 767.) “‘The process of


the blood, it speaks for itself. [¶] Is it deliberate? Yes. You know because the only
reason he would do this is because she was going to do something he didn’t like. . . . [¶]
The last phone call is at 1:11. [Defendant]’s going to do something she doesn’t want him
to do. Like stop him from selling the truck or tell [Ector] what’s going on. He makes a
decision to stop her from doing it. So he deliberated. Do I let her stop me or do I get rid
of her? [¶] Hitting her with that amount of force, the amount of force that’s required for
those injuries, tells you that. Is it premeditated? Well, he let himself into the house. He
thinks about what he’s doing. He climbs that wall to get into the door that he knows is
open, and he uses [Ector’s] phone. [¶] It’s a continuous, building intent. What are the
logical inferences? [Henderson] did not invite [defendant] in to use the phone. She said
he had done some mean things to her before. [Henderson] told [Ector] she wanted to
lock those locks. Both locks were locked.”

                                             15
premeditation and deliberation does not require any extended 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. . . . ” [Citations.]’” (People v. Lee (2011) 51 Cal.4th 620, 636.)
       The leading case discussing the sufficiency of premeditation and deliberation
evidence is People v. Anderson (1968) 70 Cal.2d 15 (Anderson). In that case, our
Supreme Court explained: “The type of evidence which this court has found sufficient to
sustain a finding of premeditation and deliberation falls into three basic categories: (1)
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—what may be characterized as ‘planning’ activity; (2) facts about the
defendant’s prior relationship and/or conduct with the victim from which the jury could
reasonably infer a ‘motive’ to kill the victim, which inference of motive, together with
facts of type (1) or (3), 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’; . . . [and] (3) 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 type (1) or (2).” (Id. at pp. 26-27.)
       The Anderson factors do not establish strict rules, and they are not a sine qua non
to finding deliberation and premeditation. (People v. Sanchez (1995) 12 Cal.4th 1, 32.)
But they do provide guidelines for a reviewing court’s analysis. (Ibid.; People v. Raley
(1992) 2 Cal.4th 870, 886 [when evidence of all three Anderson factors are not present,
appellate courts look for either very strong evidence of planning or some evidence of
motive in conjunction with planning or a deliberate manner of killing].)




                                              16
                     a.     Motive
       It is undisputed that defendant and Henderson had a relationship prior to the day
he killed her. This is not, therefore, a case in which the jury was left to search elsewhere
for a motive because of the absence of any “prior relationship and/or conduct with the
victim.” (Anderson, supra, 70 Cal.2d at p. 27 [italics omitted]; compare People v. Caro
(1988) 46 Cal.3d 1035, 1050, overruled on another ground by People v. Whitt (1990) 51
Cal.3d 620, 657, fn. 29 [no evidence of prior relationship, but jury could reasonably infer
defendant killed victim because she was an actual or potential witness to kidnapping].)
       Substantial evidence at trial permitted the jury to conclude the relationship
between defendant and Henderson became antagonistic before the murder took place.
Ector provided uncontradicted testimony that defendant had come to Henderson’s house
and done some mean things to her. Although Ector was not asked by either the
prosecution or the defense to explain what the “mean things” were, Ector did explain that
Henderson was sufficiently concerned to have asked him—when he left just the day
before the murder—to make sure the front door to her house was locked because she did
not want defendant in the house.9
       Defendant, however, did come on Henderson’s property the next day, the day he
killed her while Ector was away undergoing a medical procedure. The jury could
properly rely on the placement of the white plastic chair near the wall separating 2115
Redondo and Henderson’s house, in combination with Ector’s testimony that the chair
was not normally in that location, to infer that defendant gained access to Henderson’s
property without her permission by hopping over the wall.
       Having drawn such an inference, the jury could properly rely on the phone call
records to make reasonable inferences about what happened once defendant was on
Henderson’s property. The records established that defendant made five short telephone
calls (the longest was 47 seconds and the others were all 25 seconds or less) to a junk car

9
       Ector’s trial testimony on this point, that Henderson wanted the doors locked to
keep defendant out of the house, was also what he told police when first interviewed on
the day of the murder.

                                             17
dealer using Henderson’s phone, and defendant admitted in his post-arrest interview that
the purpose of the calls was to “get a value on that,” i.e., Ector’s truck. The next
outgoing call following the calls to the junk car dealer was the 1:11 p.m. call from
Henderson’s phone to Ector’s cell phone, and the jury was entitled to conclude
Henderson made that call to Ector; there was no evidence that suggested any reason why
defendant would have been calling Ector at the time. After the 1:11 p.m. call, there were
no further outgoing calls on Henderson’s line until after 5 p.m. Defendant did make three
additional short calls to the junk car dealer starting at 1:29 p.m., but he switched to using
Ector’s phone line to make those calls.
       With Ector’s unrebutted testimony that Henderson did not want defendant in her
house and undisputed evidence that defendant nevertheless made calls from her
telephone, the jury could reasonably infer that defendant killed Henderson to prevent her
from talking to Ector. The investigator for the coroner’s office put the time of death at
roughly 1:24 p.m., which was between the last call made from Henderson’s phone line
(the 1:11 p.m. call to Ector’s cell phone) and the resumed attempts by defendant to reach
the junk car dealer that started at 1:29 p.m. The jury could reasonably believe the
purpose of Henderson’s 1:11 p.m. call to Ector was to warn him about defendant’s plans
to sell Ector’s truck, as the prosecution argued, or it may have simply been to ask for
Ector’s help because she had found defendant on her property without her permission or
because defendant was doing “mean things” to her again. But the motive to kill would be
the same in each scenario: the relationship between Henderson and defendant had
become antagonistic, Henderson did not want defendant in the house and tried to contact
Ector, and defendant acted to prevent Henderson from reaching Ector (or anyone else) by
killing her.


                     b.      Planning and the manner of killing
       Under the remaining two Anderson factors, we consider whether there is evidence
of planning activity that reveals a premeditated intention to kill and whether the manner



                                             18
of the killing is particular and exacting in a way that suggests an intention to kill
according to a preconceived design. (Anderson, supra, 70 Cal.2d at pp. 26-27.)
       The evidence of planning activity was quite minimal. There was no evidence, for
example, that defendant brought the murder weapon, whatever it might have been, with
him. (Compare People v. Young (2005) 34 Cal.4th 1149, 1183 [evidence of planned
entry with a gun supports inference of plan to kill].) But that is not to say there was no
evidence whatsoever. In People v. Tully (2012) 54 Cal.4th 952, our Supreme Court
stated that a defendant’s care in eliminating his fingerprints from the victim’s residence
was some evidence of planning activity. (Id. at p. 1008, fn. 24.) Here, there was no
evidence that defendant eliminated fingerprints, but there was evidence that defendant
took care to eliminate or remove other physical evidence. The testimony from the
criminalists, the coroner’s investigator, and Ector, along with the exhibits admitted at
trial, established that defendant dragged Henderson’s dead body to the patio, removed
most of the clothing she was wearing at the time, positioned a hose so that water was
running over her body, and used the house’s bathroom or the kitchen to wash her blood
off him. Like the elimination of fingerprints in People v. Tully, the care taken by
defendant to eliminate physical evidence gives rise to an inference that he was acting
according to a plan to kill, not reacting to an unexpected or unconsidered state of affairs.
       The manner in which defendant killed Henderson provides further evidence of
premeditation. The coroner testified that Henderson was killed by blunt force trauma to
her head. Defendant fractured the left side of Henderson’s skull and there were also other
non-fatal injuries to Henderson’s head and face. By contrast, the rest of her body was
nearly wound free, a point the prosecution highlighted during closing argument.10 Our


10
       There was a bruise on the back of Henderson’s left hand, but there was no
testimony concerning the cause of that injury. There were also small bruises on
Henderson’s arm and on her legs, but the medical examiner testified that those bruises
were consistent with finger pressure.
       During closing argument the prosecution called attention to the lack of other
injuries: “He [the deputy medical examiner] tells you the cause of death is blunt-force
trauma to the head. There are little to no injuries anywhere else on her body. There are

                                              19
Supreme Court has found blunt force injuries focused entirely on a victim’s head
probative of premeditation and the jury could reach the same conclusion on the facts
here. (People v. Cruz (1980) 26 Cal.3d 233, 245 [“[T]he killings [of the defendant’s wife
and two child victims] by blows to only the head and by a shotgun blast in his wife’s face
permit the jury to infer that the manner of killing was so particular and exacting that
defendant must have killed intentionally according to a preconceived design and for a
reason”]; see also People v. Hovey (1988) 44 Cal.3d 543, 556.)
       To be sure, there is at least one case in which the court appeared to take a contrary
view. (People v. Lucero (1988) 44 Cal.3d 1006, 1020 [strangulation of one victim was a
deliberate manner of killing suggestive of premeditation but manner in which another
victim was killed, multiple blows to the skull from a blunt object, “much less suggestive”
of premeditated murder].) In this case, however, there was evidence not just of
defendant’s near-exclusive focus on Henderson’s head, but also of defendant’s demeanor
near in time to when he attacked Henderson. Relying on the phone records and the
testimony from the coroner’s investigator, the jury could conclude that defendant killed
Henderson around 1:30 p.m. Only two hours later, around 3:30 p.m., defendant
encountered Ector outside 2115 Redondo and asked Ector to drive him to an ATM. On
the way, defendant told Ector, “You have been in control and now I’m in control.” Ector
also testified on cross-examination that defendant appeared very calm during the drive,
which was just two hours after defendant had killed Henderson, dragged her bleeding
body outside, and taken steps consistent with an effort to wash away forensic evidence.
From defendant’s demeanor shortly after the killing and the blows he inflicted only to
Henderson’s head, the jury could infer his actions that caused her death were not the
product of an unconsidered or rash impulse but the desired culmination of a preexisting
intention. (People v. Lee (2011) 51 Cal.4th 620, 636 [manner of killing indicative of




small bruises on her arm. There are small bruises on her leg. About the size of
fingerprints. From being drug out of the house.”

                                             20
premeditation where defendant was calm when shooting victim multiple times and
continued to be “calm and collect[ed]” on the way home, after the victim’s death].)


       3. Summary and Analysis of Prejudice
       Viewing the record as a whole, we cannot say that the evidence at trial was so
deficient as to preclude any rational trier of fact from concluding that defendant had
committed a deliberate and premeditated murder. We have in this case the second
scenario contemplated by the Raley court—evidence of motive combined with some
evidence of planning and/or a manner of killing that is indicative of a preconceived plan
to kill. That is not to say, however, the evidence of premeditation was strong. It wasn’t,
and that weighs heavily in the analysis of prejudice we now undertake.
       The jury had before it a legally inadequate theory of felony murder advanced by
the prosecution and uncured by a correct jury instruction, as well as a legally adequate
theory of premeditated murder. “When one of the theories presented to a jury is legally
inadequate . . . the jury cannot reasonably be expected to divine its legal inadequacy. The
jury may render a verdict on the basis of the legally invalid theory without realizing that,
as a matter of law, its factual findings are insufficient to constitute the charged crime. In
such circumstances, reversal generally is required unless ‘it is possible to determine from
other portions of the verdict that the jury necessarily found the defendant guilty on a
proper theory.’ [Citation.]” (People v. Perez (2005) 35 Cal.4th 1219, 1233; accord,
Griffin v. United States (1991) 502 U.S. 46, 58-59; People v. Guiton (1993) 4 Cal.4th
1116, 1121-1122 [“‘[W]hen the prosecution presents its case to the jury on alternate
theories, some of which are legally correct and others legally incorrect, and the reviewing
court cannot determine from the record on which theory the ensuing general verdict of
guilt rested, the conviction cannot stand,’” quoting People v. Green (1980), 27 Cal.3d 1];
People v. McDonald (2015) 238 Cal.App.4th 16, 27.) Our Supreme Court’s decision in
People v. Chun, supra, 45 Cal.4th 1172 states that we must be able to conclude, beyond a
reasonable doubt, that the jury based its verdict on the legally valid theory in order to find
the error harmless. (Id. at p. 1203 [if other aspects of the jury’s verdict or the evidence

                                             21
leave no reasonable doubt that the jury made the findings necessary for the legally valid
theory, the error is harmless]; see also People v. Chiu (2014) 59 Cal.4th 155, 167.)
       Felony murder is the theory that the prosecution primarily emphasized when
urging the jury to convict defendant of first degree murder. Understandably so, because
that theory was the far easier of the two to prove, particularly with the prosecution’s
oversimplified definition of theft. The prosecutor described the deliberate and
premeditated theory as an “alternate theory,” in contrast to the felony murder theory that
was “automatically first degree”: “Is [defendant] guilty of first degree murder? Felony
murder, yes. That’s pretty clear. Is he guilty of murder under an alternative theory? The
judge gave you two instructions. . . . [¶] . . . [¶] To get to first degree without felony
murder, you need willful, deliberate and premeditated.” As we have already explained,
the case for premeditated murder was sufficient but not strong. Confronted with both a
relatively weak theory of premeditated murder that would require carefully parsing the
evidence and drawing multiple inferences, and an apparently stronger (albeit legally
inadequate) felony murder theory that would “automatically” justify a first degree
finding, we are convinced the jury likely opted for the straightforward theory and not the
one that respondent acknowledges was “far from overwhelming.” Although we
recognize the danger that generally inheres in drawing conclusions based on the amount
of time a jury deliberates, we believe the short amount of time the jury was out here—
two and a half hours before lunch and one hour after—is some further indication that the
jury arrived at its decision based on the less complicated felony murder theory rather than
the weaker and more complicated premeditated murder theory.
       We therefore hold reversal is required under the circumstances. There is nothing
about the jury’s guilty verdicts here, as there was in People v. Chun, supra, 45 Cal.4th at
p. 1205, that would allow us to reliably conclude the jury rendered its first degree murder
finding on a legally valid theory.11



11
       We certainly have no basis to conclude beyond a reasonable doubt that the jury
based its verdict on the premeditated murder theory. Moreover, on this record, we would

                                              22
                                               II
          Instruction on Alternative Murder Theories (CALCRIM No. 548)
       In a supplemental brief, defendant contends that the first degree murder conviction
must also be reversed because the trial court’s decision to instruct the jury with
CALCRIM No. 548 on alternate theories of murder was error. The instruction informed
the jury that it did not need to agree on the same theory of murder in order to convict the
defendant. Defendant contends jurors may have understood this instruction to permit
them to convict defendant of first degree murder even though some jurors believed he
committed only second degree murder. Since we have found the first degree murder
finding must be reversed, we do not reach this claim.


                                              III
               Lesser Included Instruction on Involuntary Manslaughter
       Defendant contends the trial court had a sua sponte duty to instruct the jury on the
lesser included offense of involuntary manslaughter and that the court’s failure violated
his federal constitutional rights to due process and a fair trial.
       “Instruction on a lesser included offense is required . . . when the record contains
substantial evidence of the lesser offense, that is, evidence from which the jury could
reasonably doubt whether one or more of the charged offense’s elements was proven, but
find all the elements of the included offense proven beyond a reasonable doubt. (People




reach the same result—the conclusion that the first degree murder finding was infected
by prejudicial error—even if we employed the more permissive standard for
harmlessness that applies when a court confronts a factually inadequate, rather than a
legally inadequate, theory of guilt. (People v. Guiton, supra, 4 Cal.4th at p. 1130 [“[T]he
appellate court should affirm the judgment unless a review of the entire record
affirmatively demonstrates a reasonable probability that the jury in fact found the
defendant guilty solely on the unsupported theory”]; cf. People v. Poindexter (2006) 144
Cal.App.4th 572, 586-587 [affirming conviction where prosecutor spent more time in
closing arguing the valid premeditation theory of murder and jury deliberated for one full
day and an hour the next day before returning its verdict].)

                                               23
v. Hughes (2002) 27 Cal.4th 287, 365; People v. Breverman (1998) 19 Cal.4th 142,
162.)” (People v. Moore (2011) 51 Cal.4th 386, 408-409.)
       “Involuntary manslaughter is a lesser offense of murder, distinguished by its mens
rea. (People v. Rios (2000) 23 Cal.4th 450, 460.)” (People v. Butler (2010) 187
Cal.App.4th 998, 1006.) “[T]here are three types of acts that can underlie commission of
involuntary manslaughter: a misdemeanor, a lawful act, or a noninherently dangerous
felony. (See [People v. Garcia (2008) 162 Cal.App.4th 18, 27-29].) . . . [F]or all three
types of predicate acts the required mens rea is criminal negligence.” (Ibid.)
       “If a defendant commits an act endangering human life, without realizing the risk
involved, the defendant has acted with criminal negligence. By contrast where the
defendant realizes and then acts in total disregard of the danger, the defendant is guilty of
murder based on implied malice.” (People v. Guillen (2014) 227 Cal.App.4th 934,
1027.) Criminal negligence is judged under an objective standard. Thus, a person acts
with criminal negligence when he “acts in a reckless way that creates a high risk of death
or great bodily injury” and a “reasonable person would have known that acting in that
way would create such a risk.” (CALCRIM No. 580.)
       Defendant argues this case involves the first of these predicate acts. He contends
“gaps in the evidence left considerable room for reasonable doubt that the offense
committed was murder, and shows nothing more than a simple battery.” We are not
persuaded. We have already reviewed, ante, the evidence that demonstrates defendant’s
crime was far more than a simple battery. The injuries and the force required to produce
such injuries was necessarily extreme force, likely to cause great bodily injury. (See
People v. Covino (1980) 100 Cal.App.3d 660, 667 [nature and extent of any injury
inflicted is a relevant and often controlling factor in determining if force used was likely
to cause great bodily injury].) Thus, defendant committed a serious felony rather than a
simple misdemeanor battery. (See People v. Moore (1992) 10 Cal.App.4th 1868, 1871
[battery causing serious bodily injury is a serious felony, within the meaning of section
1192.7, subdivision (c)(8)].)



                                             24
       Further, the evidence, especially the photos of the blood spatter, is not consistent
with the hypothetical scenario defendant offers on appeal: that he pushed Henderson and
she fell and hit her head. Nor was there any substantial evidence at trial offered by the
defense (or prosecution) to suggest such a scenario occurred. Moreover, we have also
already detailed the evidence, particularly the evidence as to motive, that allowed the jury
to infer defendant intended to kill Henderson when using such force.
       Because the jury could not reasonably have found that defendant committed
involuntary manslaughter but not murder, the trial court did not err in failing to instruct
the jury on involuntary manslaughter.


                                              IV
                                 Prior Alabama conviction
       The trial court found true the allegation that defendant had suffered a conviction in
Alabama which qualified as a prior serious felony conviction within the meaning of
section 667, subdivision (a), and the Three Strikes law (sections 667, subdivisions (b)
through (i) and 1170.12). The court sentenced defendant to a total term of 59 years to life
in state prison, consisting of a term of 25 years to life in state prison for the murder
conviction, doubled to 50 years to life pursuant to the Three Strikes law, plus a five-year
enhancement term pursuant to section 667, subdivision (a), plus a two-year term for the
theft conviction, doubled to four years pursuant to the Three Strikes law.
       Defendant contends and respondent agrees that the prosecution presented
insufficient evidence from which the court could find that this prior conviction for
robbery in Alabama was a strike or serious felony conviction under California law. We
reach the same conclusion.
       A prior conviction from another jurisdiction qualifies as a strike if the out of state
conviction includes all the elements of a strike offense in California. (§ 667, subd.
(d)(2).) To determine if the prior conviction so qualifies, the trier of fact “may ‘look
beyond the judgment to the entire record of the conviction’ . . . ‘but no further.’” (People
v. Trujillo (2006) 40 Cal.4th 165, 177.) The record of conviction consists of matters in

                                              25
the record that establish the facts of the offense for which the defendant was convicted.
(Id. at pp. 179-180 [statements in post-guilty plea probation report not part of record of
conviction].)
       Defendant’s prior conviction was for first-degree robbery in violation of Alabama
Code, title 13A, section 13A-8-41 (1975). That statute incorporates the elements of third-
degree robbery under 13A-8-43, and further requires either that a defendant be armed
with a deadly weapon or dangerous instrument or that the defendant cause serious
physical injury to another. Our Supreme Court has noted at least one distinction between
the underlying third-degree robbery statute in Alabama and the California robbery statute,
section 211. (People v. Nguyen (2000) 24 Cal.4th 756, 763, fn. 4 [California robbery
statute requires the property to be taken “from the possession” of the victim].) Thus, the
mere fact of a conviction for robbery in Alabama does not establish all of the elements of
robbery in California. The prosecution was required to show through the record of the
Alabama conviction that the Alabama robbery contained all of the elements of a robbery
in California. (People v. Saez (2015) 237 Cal.App.4th 1177.)
       That did not happen here; all that was presented was an Alabama document
similar to a California probation report. The trial court erred in relying on the factual
summary in the report. The trial court’s true finding on the prior conviction allegation is
reversed, and the matter is remanded for a retrial on the allegation or, if the People elect
not to retry the allegation, for resentencing. (People v. Monge (1997) 16 Cal.4th 826, 843
[“federal double jeopardy clause does not apply to the trial of the prior conviction
allegation”].)




                                             26
                                      DISPOSITION
       The conviction for first degree murder is reversed and the matter is remanded for a
new trial. Unless the People bring defendant to trial within the term prescribed by law
after issuance of the remittitur, the trial court shall proceed as though the judgment on
appeal had been reduced on count one to second degree murder.
       The judgment is reversed as to the true finding on the prior conviction allegation
arising out of defendant’s Alabama robbery conviction and the matter is remanded to the
trial court for further proceedings consistent with this opinion.
       The conviction on count two of the information is affirmed.


               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                           BAKER, J.



I concur:



       TURNER, P.J.




                                             27
The People v. Deryke Lawrence
B259517


MOSK, J., Concurring




      I concur.
      I concur in the result. I do not believe there is sufficient evidence of premeditation
and deliberation. The prosecutor’s theory was based only on speculation. The inferences
used to support premeditation and deliberation are consistent with second degree murder.




                                  MOSK, J.
