Filed 5/11/15 P. v. Rojas CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                     FOURTH APPELLATE DISTRICT

                                                  DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                     G050421

                   v.                                              (Super. Ct. No. RIF1203892)

JOSE ANTONIO ROJAS,                                                OPINION

     Defendant and Appellant.


                   Appeal from a judgment of the Superior Court of Riverside County,
Charles J. Koosed, Judge. Affirmed as modified with directions.
                   Allison H. Ting, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Scott Taylor, Peter
Quon, Jr., and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and
Respondent.
                                              *              *               *
              A jury convicted defendant Jose Antonio Rojas of premeditated and
deliberate first degree murder (Pen. Code, § 187, subd. (a), 190, subd. (a); all statutory
references are to the Penal Code) and personal use of a knife (§ 12022, subd. (b)(1)).
Rojas contends substantial evidence does not support the jury’s finding the murder was
premeditated and deliberate. For the reasons expressed below, we agree with Rojas and
modify the judgment to second degree murder.
                                              I
                        FACTUAL AND PROCEDURAL BACKGROUND
              In September 2012, defendant lived with his family in Perris, California.
Defendant recently had begun working with his younger brother, Daniel Rojas (Daniel),
and Daniel’s close friend, Luis Xique, in a landscaping business.
              On September 28, the men drove together to work. During the day, Daniel
and Xique made plans to meet later at the Rojas residence to socialize and drink beer, but
there was no evidence defendant was aware of this. After work, Daniel and defendant
dropped Xique off at his residence around 7:00 p.m. and returned home. Daniel ate and
drank several beers while he sat on the living room couch and watched television.
              Defendant was sitting at the kitchen table eating dinner with his father
when Xique arrived at the front door around 9:00 p.m. Through the open front door,
Xique asked Daniel, “Where’s the beer?” Defendant got up, walked over to Xique and
confronted him, asking, “What did you say to me?” and “Do you want to get down?”
Xique responded with something like, “You’re tripping,” and “I’m just asking for a
beer.” Daniel told defendant to “calm down.” Defendant reached into his pocket for the
pocketknife he always carried, then swung at or punched Xique, striking his neck and
chest. Xique started bleeding and grabbed his neck, gasping for air. Daniel estimated
Xique was stabbed 10 seconds to one minute after he arrived.
              Daniel pushed defendant and asked, “Hey, fool. Why the fuck did you hit
him, fool?” or “Why did you stab him?” Defendant’s father told defendant to “Leave.

                                              2
Leave. Get the fuck out of here.” Xique walked away from the residence and crossed the
street to seek help from a neighbor, but collapsed on the sidewalk. Daniel attempted to
stem the profuse bleeding by applying pressure to Xique’s neck while yelling for others
to call for help. Xique died from his wounds.
              An autopsy revealed the knife wound to the left side of Xique’s neck cut a
jugular vein and a carotid artery. Xique also suffered a knife wound to the left side of his
chest, piercing his pericardial sac. The pathologist found no defensive wounds. Blood
spatter analysis indicated Xique stood outside facing the closed screen door when
defendant stabbed him.
              Defendant walked away from the scene, and later placed several phone
calls to his sister in San Diego, explaining he was in trouble and had done “something
wrong.” He asked his sister to pick him up in Tijuana, Mexico, and to give him food and
money. She urged him to turn himself in to authorities.
              Daniel told investigators defendant always carried a pocketknife. Daniel
declared defendant stabbed Xique “for no reason,” and asserted that defendant never “had
a beef” with Xique. Daniel told investigators defendant also had attacked Daniel in the
past for no apparent reason. Investigators found stab marks on the drywall around the
window sill of defendant’s bedroom.
              Following a trial in May 2013, the jury convicted defendant as noted above.
In July 2013, the court imposed a sentence of 25 years to life for first degree murder plus
one year for use of the knife.
                                             II
                                       DISCUSSION
              Defendant contends the judgment should be modified to reflect a conviction
for second degree murder rather than first degree murder because there was insufficient
evidence to support the jury’s conclusion defendant acted with premeditation and
deliberation. We agree.

                                             3
              On appeal, we review the whole record in the light most favorable to the
judgment below to determine whether it discloses 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. (People v. Johnson (1980)
26 Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) “By
definition, ‘substantial evidence’ requires evidence, not mere speculation about any
number of scenarios that may have occurred.’” (People v. Thomas (1992) 2 Cal.4th 489,
545; People v. Morris (1988) 46 Cal.3d 1, 21 (Morris) overruled on another point in In re
Sassounian (1995) 9 Cal.4th 535, 551, fn. 5.) “A finding of fact must be an inference
drawn from evidence rather than . . . a mere speculation as to probabilities without
evidence.’” (Morris, supra, at p. 21.)
              “An inference is a logical and reasonable deduction or conclusion to be
drawn from the proof of preliminary facts. [Citations.] . . . The strength of an inference
may vary widely. In some circumstances, the preliminary facts may virtually compel the
conclusion. In other circumstances, the preliminary facts may minimally support the
conclusion. But to constitute an inference, the conclusion must to some degree
reasonably and logically follow from the preliminary facts. If, upon proof of the
preliminary facts, the conclusion is mere guesswork, then we refer to it by such words as
speculation, conjecture, surmise, suspicion, and the like; and it cannot rise to the dignity
of an inference. [Citations.]” (People v. Massie (2006) 142 Cal.App.4th 365, 373-374.)
              Murder is the unlawful killing of a human being with malice aforethought.
(§ 187, subd. (a).) Murder that is “willful, deliberate, and premeditated . . . is murder of
the first degree. All other kinds of murders are of the second degree.” (§ 189.) By
dividing the offense of murder into two degrees, the Legislature attached greater moral
culpability for deliberate and preconceived murders. (People v. Holt (1944) 25 Cal.2d
59, 90-91; People v. Bender (1945) 27 Cal.2d 164, 181 (Bender) [Legislature intended to
“distinguish between deliberate acts and hasty or impetuous acts”] overruled on other

                                              4
grounds in People v. Lasko (2000) 23 cal.4th 101, 110.) Thus, the Legislature never
intended to place defendants who acted with the specific intent to kill in the “same class
with murder which is truly cold-blooded.” (Id. at p. 184.)
              Premeditation “encompasses the idea that a defendant thought about or
considered the act beforehand.” (People v. Pearson (2013) 56 Cal.4th 393, 443.)
Deliberation “‘“refers to careful weighing of consideration in forming a course of
action.”’” (Ibid.) “The word ‘deliberate’ is an antonym of ‘Hasty, impetuous, rash,
impulsive’ [citation] and no act or intent can truly be said to be ‘premeditated’ unless it
has been the subject of actual deliberation or forethought.” (People v. Thomas (1945)
25 Cal.2d 880, 901.) To find a person guilty of deliberate premeditated murder the
evidence must show the defendant’s acts were the result of careful thought and weighing
of considerations rather than an unconsidered or rash impulse. (People v. Banks (2014)
59 Cal.4th 1113, 1153.) Although, the Supreme Court has observed that “‘“[t]houghts
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 (Mendoza)), the court
also has declared the Legislature applied the “common, well-known dictionary meaning”
to the words “‘deliberate’” and “‘premeditate.’” (Bender, supra, at p. 183.) Accordingly,
the court explained “[t]he adjective ‘deliberate’ means ‘formed, arrived at, or determined
upon as a result of careful thought and weighing of considerations; as a deliberate
judgment or plan; carried on coolly and steadily, esp. according to a preconceived design;
. . . Given to weighing facts and arguments with a view to a choice or decision; careful in
considering the consequences of a step; . . . unhurried; . . . Characterized by reflection;
dispassionate; not rash.’” (Ibid.) The focus therefore is on “‘the extent of the
reflection,’” not the time it took before deciding to act. (People v. Solomon (2010)
49 Cal.4th 792, 813.)
              Applying the foregoing principles has often proved difficult, however,
because of the fine line drawn by the Legislature between first and second degree murder.

                                              5
Express malice is required for one form of second degree murder, which exists “when
there is manifested a deliberate intention to take away the life of a fellow creature.”
(§ 188.) Express malice is also required for a deliberate and premeditated murder. But a
person who intentionally murders another cannot be convicted of first degree murder
without substantial evidence of premeditation and deliberation. (People v. Elmore (2014)
59 Cal.4th 121, 133.) Juries therefore must determine whether a defendant premeditated
and deliberated in “the interval between the fully formulated intent and its execution.”
(Bender, supra, 27 Cal.2d at p. 182.) This may be difficult to assess where, as here, the
prosecution alleges these mental states followed in instantaneous succession.
              Reviewing courts face an equally challenging task. As explained in People
v. Anderson (1968) 70 Cal.2d 15 (Anderson), “Given the presumption that an unjustified
killing of a human being constitutes murder of the second, rather than of the first, degree,
and the clear legislative intention to differentiate between first and second degree murder,
[a reviewing court] must determine in any case of 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.’” (Id. at p. 25.)
              Anderson addressed this problem by providing guidelines for the kind of
evidence which would sustain a finding of premeditation and deliberation, noting the
evidence “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

                                               6
and weighing of considerations’ rather than ‘mere unconsidered or rash impulse hastily
executed’ [citation]; (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). [¶] Analysis of the cases will show that this court sustains verdicts of first degree
murder typically when there is evidence of all three types and otherwise requires at least
extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3).”
(Anderson, supra, 70 Cal.2d at pp. 26-27.)
              The Supreme Court has explained the Anderson framework was designed to
“‘assist reviewing courts in assessing whether the evidence supports an inference that the
killing resulted from preexisting reflection and weighing of considerations.’” (People v.
Koontz (2002) 27 Cal.4th 1041, 1081.) The Anderson court did not intend to preclude
reviewing courts from “‘“ other types and combinations of evidence that could support a
finding of premeditation and deliberation.”’” (Mendoza, supra, 52 Cal.App.4th at p.
1069.) The Attorney General, however, relies only on evidence supporting the three
Anderson factors—planning, motive, and manner of killing—to support its argument
substantial evidence shows defendant premeditated and deliberated the murder. We
therefore analyze the evidence under the three Anderson factors.
              Under the category of “planning” evidence, Attorney General contends
defendant knew Xique would be coming over to the house in the evening to drink beer
with Daniel. She also states defendant “made the conscious decision to get up from his
seat, walk over to the front door, and confront Xique,” and after “Xique explained that he
was just asking for a beer, [defendant] made another conscious decision to reach into his
pocket for his knife.” When Daniel told defendant to “‘calm down,’” defendant “made
yet another conscious decision to take the pocket knife out of his pocket, unfold the knife,
and then stab the left side of Xique’s neck with the knife and thrust the knife deep into

                                              7
the left side of Xique’s chest.” She says the “strong force [that] severed Xique’s external
jugular vein and carotid artery and injured Xique’s pericardial sac, diaphragm, and liver
shows [defendant] did not accidentally stab Xique or randomly pierce him during a
struggle but rather, made precise and targeted decisions to strike Xique’s most vulnerable
areas of the body. Additionally, that [defendant] was neither distraught nor horrified
about what he had done to Xique and did not try to help Xique afterwards, leaves no
doubt that [his] decision to kill Xique was neither rash nor impulsive. [Defendant’s]
actions, albeit quick and successive, were clearly directed toward, and intended to result
in, the killing of Xique.”
              In essence, the Attorney General concludes defendant planned the murder
because he consciously reached for the knife in his pocket and struck the victim with the
intent to kill. We agree the evidence shows defendant made a conscious decision to use
his knife, but this evidence shows an intent to kill only. A defendant acts with the
specific intent to kill when he assaults his victim in a manner designed to achieve the
additional consequence of the victim’s death. (See People v. Atkins (2001) 25 Cal.4th 76,
82 [specific intent defined as the intent to do some further act or achieve some additional
consequence].) The Attorney General’s description of defendant’s conscious decision to
use his knife in a manner designed to bring about the victim’s death constitutes
substantial evidence defendant specifically intended to kill, but does not show he
carefully weighed the consequences of his act. To conclude otherwise would be nothing
more than conjecture. To prove a defendant premeditated and deliberated the
consequences of his action, there must be “substantially more reflection than may be
involved in the formation of a specific intent to kill.” (People v. Thomas, supra,
25 Cal.2d at p. 900, italics added.)
              The record also does not support the Attorney General’s contention
defendant knew of Xique’s impending visit and plan to attack Xique when he arrived.
The Attorney General fails to identify any direct evidence defendant knew Daniel and

                                             8
Xique had agreed to meet later at Daniel’s house. Rather, she infers defendant knew
about their plans because he carpooled to work with them. But without evidence Daniel
and Xique made their plans in defendant’s presence, the conclusion defendant knew of
Daniel’s and Xique’s plans does not reasonably and logically follow from the preliminary
fact that defendant carpooled to work with them. The possibility defendant knew Xique
planned to meet Daniel is based on speculation and is not a substitute for reasonable and
credible evidence.
              The Attorney General also asserts there was motive evidence. She
acknowledges “the record does not indicate the specific reason why [defendant] became
angry with Xique,” but nevertheless argues motive was shown because defendant “had
engaged in similar behavior before. Daniel told the investigators that [defendant] always
carried a pocket knife in his pocket, that [he] stabbed Xique ‘for no reason,’ and [he] had
done the same thing before to Daniel. The fact [he] had done the ‘same thing’ to Daniel
leads to the reasonable inference that . . . stabbing Xique was not the result of
unconsidered or rash impulse.”
              We agree the record reveals no reason why defendant exploded in anger at
the victim. The Attorney General’s acknowledgment there was no evidence why
defendant attacked the victim is simply another way of stating there was no evidence to
show the motive for defendant’s senseless act. And assuming defendant previously had
assaulted Daniel, it simply does not logically follow that defendant premeditated and
deliberated an assault on either occasion. Here, there was no evidence defendant
harbored any animosity toward Xique before the argument and stabbing. The evidence
showed he carried a knife with him “[a]lmost every day,” and nothing demonstrated he
was engaged in planning or activity directed toward killing Xique when he arrived.
Apart from defendant’s unprovoked burst of anger at the door, nothing about defendant’s
relationship with Xique suggests a motive to kill him.



                                              9
              Finally, as to the manner of killing, the Attorney General emphasizes
defendant “deliberately stabbed two particularly vulnerable areas of Xique’s body—the
neck and chest. Stabbing a person in a highly vulnerable area of the body—e.g., in the
chest, as opposed to an arm or a leg—is circumstantial evidence of an intent to kill.
Thus, the evidence of [defendant’s] manner of killing leaves no doubt that [his] actions
resulted from thought or reflection and weighing of considerations and not unconsidered
or rash impulse.”
              We agree the manner of killing was particular and exacting. The issue on
appeal is whether evidence of how a victim was slain supports an inference the defendant
carefully weighed the consequences of his conduct before acting. The Supreme Court
has recognized that “manner-of-killing evidence is often ambiguous, and frequently
cannot by itself to support an inference of premeditation” unless there is evidence of an
“execution-style murder.” (People v. Hawkins (1995) 10 Cal.4th 920, 956-957 [evidence
showed victim kneeling or crouching when the defendant fired two shots to the victim’s
head from a distance of three to 12 inches].) Absent evidence of an execution-style
slaying, more is required. “Even when manner of killing evidence is strong, cases in
which findings of premeditation are upheld typically involve planning and motive
evidence as well.” (People v. Boatman (2013) 221 Cal.App.4th 1253, 1268 (Boatman).)
              Here, there is no evidence of motive and planning. Under these
circumstances, may an inexplicable and unprovoked homicide committed in a particular
and exacting fashion, by itself, demonstrate defendant premeditated and deliberated the
crime? The appellate court in Boatman faced the same issue. With no evidence of
planning and “no meaningful evidence” of motive, the Boatman court concluded no
substantial evidence supported an inference the defendant premeditated and deliberated
the killing of his girlfriend, despite evidence the defendant fired a gunshot approximately
12 inches from the victim’s face. (Boatman, supra, 221 Cal.App.4th at p. 1261, 1269.)



                                            10
               There, after being released from jail, the defendant returned home to see his
girlfriend who was staying with the defendant and his family. One of the defendant’s
brothers heard the couple arguing shortly before the shooting. The defendant testified he
and his girlfriend planned to smoke marijuana and watch a movie. After showering, he
took Xanax and Norco pills, and felt disoriented. (Boatman, 221 Cal.App.4th at pp.
1259-1260.) While he was weighing his marijuana and counting his money, his
girlfriend retrieved a gun from underneath the defendant’s pillow and pointed it at him.
He slapped the gun away and continued to weigh his marijuana. A mosquito landed on
the girlfriend, she screamed, and he teased her by grabbing the mosquito and bringing it
closer to her. He then hugged and kissed her and then returned to weighing his
marijuana. The girlfriend pointed the gun at him again. He took it away from her and
pointed it at her but did not intend to threaten or shoot her. She slapped the gun, which
discharged when he squeezed it to keep it from dropping to the ground. He told his
brother to call the police and tried to give his girlfriend mouth-to-mouth resuscitation.
She said she could not breathe and he took her outside. He went back inside to get his
keys, heard sirens, panicked, rinsed off the gun to remove fingerprints, tossed the gun
into the bottom of a kitchen cabinet and ran outside. (Id. at p. 1261.) In a 911 call, the
defendant could be heard saying “‘[n]oooo,’” “‘[b]aby,’” and “‘[b]aby are you alive,
baby . . . .’” (Id. at p. 1261.)
               The forensic pathologist testified the gun was fired roughly 12 inches from
the victim’s head directly into her face. A criminalist testified defendant could not have
fired the gun by pulling the hammer back and releasing it before it was fully cocked
because of the multiple safeties on the gun. Finally, the victim sent a text message to her
best friend shortly before the murder stating she wished the defendant was back in jail
and she was “‘fighting . . . with him right now.’” (Boatman, supra, 221 Cal.App.4th at
pp. 1259-1261.) The appellate court concluded the manner of killing supported a finding
of malice necessary to convict the defendant of murder, but there was insufficient

                                             11
evidence of planning or motive to conclude it was an “‘execution-style’” murder. (Id., at
pp. 1269-1270; People v. Edwards (1991) 54 Cal.3d 787, 814 [strong evidence of
planning where the defendant drove past his two victims and turned around to follow
them in his car, called out, “‘Girls,’” and then, as an expert marksman who worked at a
gun club, he shot one girl with a bullet between the eyes].)
              The Attorney General distinguishes Boatman by asserting that “none of the
evidence in the instant case indicates [defendant’s] killing of Xique was the result of
unconsidered or rash impulse.” The Attorney General concludes, “Whereas the
defendant in Boatman was distraught and tried to help his victim, [defendant] was
unfazed by what he had done and neither offered Xique any assistance nor called for
help. Simply stated, [defendant] coldheartedly stabbed Xique in the neck and chest and
then left him there to die.” The Attorney General, however, never distinguishes the
requisite intent to kill from the premeditation and deliberation necessary to constitute first
degree murder. Instead, the Attorney General merely assumes that absent evidence of
remorse, a defendant’s specific intent to kill also demonstrates premeditation and
deliberation. But the absence of remorse by itself does not show a defendant weighed the
consequences of a murderous act, just as the presence of remorse by itself does not show
an absence of premeditation and deliberation.
              Boatman is similar to this case because of the absence of any evidence
defendant killed the victim according to a preconceived plan. Although premeditation
and deliberation can occur in a brief interval, there must be substantial evidence showing
defendant weighed the consequences of his actions. (People v. Stitely (2005) 35 Cal.4th
514, 543.) The Attorney General identifies no interval in which defendant may have
reflected on a decision to kill, but instead conflates the decision to kill with premeditation
and deliberation. An intent to kill and reflection on that decision are not synonymous.
Nothing in the abrupt confrontation at the door suggested reflection or a preexisting
design to kill. The Attorney General’s claim that Thomas holds “even a senseless,

                                             12
random homicide can be deliberate and premeditated” is misleading. Hewing to the
distinction between an intent to kill and acting with substantial deliberation on that intent,
Thomas declared: “‘A senseless, random, but premeditated, killing supports a verdict of
first degree murder.’ (Citation.)” (People v. Thomas, supra, 2 Cal. 4th at p. 519, italics
added.)
              The Attorney General relies on the Supreme Court’s decision in People v.
Harris (2008) 43 Cal.4th 1269 (Harris). There, a mother brought her daughter to help
her work the nightshift at a doughnut shop. The mother left to get supplies from another
store, and when she returned her daughter could not get the door open to let her mother
back into the shop. As the daughter attempted to open the door, the mother noticed the
defendant waiting at the shop’s service window and she told her daughter to wait on the
defendant. The daughter walked to the service window, took the defendant’s order, and
began preparing it when she heard her mother scream. The daughter looked up to see the
defendant attack and kill her mother with a large butcher knife. (Id. at p. 1277.) At trial,
the defendant moved for a judgment of acquittal on the first degree murder charge,
arguing there was no evidence of premeditation and deliberation. The trial court denied
the motion and the Supreme Court affirmed, explaining the record supported a finding of
premeditation and deliberation because the defendant (1) brought a butcher knife to a
doughnut shop in the middle of the night when few witnesses were likely to be present;
(2) stabbed the mother in the chest with enough force to completely penetrate her heart;
and (3) had ample time to premeditate and deliberate as he waited at the service window,
placed his order, and then moved to the door where the mother stood waiting. (Id. at
pp. 1286-1287.)
              Harris is distinguishable. First, the evidence showed the defendant in
Harris planned his attack because he armed himself with a butcher knife and went to a
doughnut shop in the middle of the night. Here, defendant killed Xique with a
pocketknife he carried almost every day and Xique came to defendant’s home, defendant

                                             13
did not go out looking for Xique. As explained above, there is no evidence of planning in
this case.
              Second, the defendant in Harris had no reason to leave the service window
to go to the door where he killed the victim while he was waiting for his order. The
victim had not called out to the defendant or otherwise engaged him in any way, and
there was no evidence they knew one another. The Harris court therefore concluded the
fact the defendant waited at the service window after spotting his victim standing next to
the store entrance, and had no reason to go over to the victim other than to attack her,
supported the inference he made the decision to attack the victim while he stood at the
service window and considered that decision as he continued to wait and then walked
over to the victim’s location. Here, defendant was not waiting at the table for Xique, but
immediately reacted when Xique appeared and called out at the front door. This case
lacks the same facts to support an inference defendant carefully considered whether to
kill Xique as he sat at the table and contemplated that decision before or while walking to
the front door to confront Xique. The Boatman court also distinguished the Harris
decision on this latter ground. (Boatman, supra, 221 Cal.App.4th at p. 1271.)1

       1
                Our dissenting colleague asserts that answering a knock at a door and use
of a pocketknife is as strong or “stronger evidence of first degree murder” than the Harris
defendant’s possession of a butcher knife when he approached his victim for no
conceivable reason except to kill her. (Dis. & conc. opn., at p. 3.) We disagree. In our
view, the defendant’s custom of carrying a pocketknife and reaction to Xique’s knock at
the front door do not support an inference he carefully weighed the consequences of his
acts.
                The dissent also relies on the brief interval in which the offense occurred,
10 seconds to a minute, as sufficient time for defendant not only to form an intent to kill,
but to consider and carefully weigh that decision. As we have emphasized, time is but
one among several factors to evaluate. As observed in Boatman, “if the mere passage of
time was enough to infer premeditation and deliberation, then virtually any unlawful
killing with malice aforethought would be first degree murder because premeditation and
deliberation does not require any extended period of time. [Citation.] As discussed
above, premeditation and deliberation is not synonymous with malice aforethought
[citation]; it requires ‘substantially more reflection.’ [Citation.] Clearly, there must be

                                             14
              The evidence did not support the jury’s conclusion that defendant reflected
or deliberated on a premeditated plan to kill. We must therefore modify the judgment.
                                             III
                                        DISPOSITION
              The judgment is modified (§ 1260) to reflect a conviction for second
degree murder and a sentence of 15 years to life, plus one year for the knife enhancement.
In all other respects, the judgment is affirmed. The trial court is directed to transmit a
certified abstract of the judgment as amended to the Department of Corrections and
Rehabilitation.



                                                   ARONSON, J.

WE CONCUR:



O’LEARY, P. J.




some evidence that the defendant engaged in such reflection, and not merely had the time
to do so.” (Boatman, supra, 221 Cal.App.4th at p. 1270.)

                                             15
FYBEL, J., Concurring and Dissenting.
              I concur in the affirmance of the judgment but respectfully dissent from the
modification reducing the degree of murder. In my view, People v. Harris (2008) 43
Cal.4th 1269 (Harris) compels us to affirm the first degree murder conviction. As I will
explain, the evidence supporting first degree murder in this case is even stronger than that
in Harris.
              In Harris, the victim and her daughter went to work at a donut shop.
(Harris, supra, 43 Cal.4th at p. 1277.) The victim left the shop to get supplies and, on
returning, tapped on the door as a signal for her daughter to open it. (Ibid.) As the
daughter approached the door, the victim saw the defendant standing at the service
window and told her daughter to wait on him. The daughter took the defendant’s order
and, while preparing it, heard the victim scream. (Ibid.) The daughter ran to the door
and saw the victim struggling with the defendant, who had a butcher knife. The victim
collapsed and died. (Ibid.) She had a stab wound to the left side of her chest, four inches
deep, which cut through a piece of one rib and completely through the heart. (Ibid.) The
trial court, applying the sufficiency of the evidence standard, denied the defendant’s
motion for a judgment of acquittal as to the charge of first degree murder. (Id. at
p. 1286.)
              The California Supreme Court upheld the trial court’s decision. (Harris,
supra, 43 Cal.4th at p. 1287.) The Supreme Court stated: “Here, defendant was armed
with a knife and stabbed [the victim] without provocation directly in the heart with
enough force to penetrate part of a rib and pierce entirely through the heart. In the time it
took for [the daughter] to go from the door to the service window, and to take and prepare
defendant’s order, there was ample time for him to deliberate and premeditate before
attacking [the victim]. Under these circumstances, we cannot say the jury could not
reasonably have found defendant guilty of first degree murder.” (Ibid.)



                                              1
              In this case, Daniel Rojas and the victim, Luis Xique, had decided to “hang
out” and drink beer after work at the Rojas home. After dropping off Xique at his home,
Daniel and defendant Jose Antonio Rojas drove to their home, where they drank beer and
watched television. About 40 minutes later, at about 9:00 p.m., Xique arrived and
walked up to the front door, which was open. Defendant was eating at the kitchen table.
              While standing at the open door, Xique asked, “where’s the beer?”
Defendant got up from the kitchen table, walked to the door, and asked Xique, “[w]hat
did you say to me?” and “[d]o you want to get down?” Xique responded by saying,
“[w]hy are you tripping?” and “I’m just asking for a beer.”
              Defendant pulled out a pocketknife that he carried in his pants pocket,
unfolded it, and stabbed Xique directly in the carotid artery and in the chest. As in
Harris, the stab to the chest penetrated the rib cage.
              Daniel pushed defendant and asked, “[h]ey fool, why . . . did you hit him
fool?” Defendant answered, “[’c]ause I want to fight.”
              As somebody was shouting “[w]hy did you stab him? Why did you stab
him,” Daniel tried to help Xique, who was bleeding profusely and gasping for air.
Defendant did not try to help Xique. Defendant’s brother, Miguel Rojas, Jr., told
defendant to “[l]eave . . . [g]et the fuck out of here.” Defendant walked away from the
scene and later made several telephone calls to his sister. He told her that he was in
Tijuana and that he had done something wrong.
              The evidence supporting first degree murder is stronger here than in Harris
in two ways. First, defendant’s comments both before and after killing Xique show that
defendant did reflect on his course of action. When approaching Xique, defendant said,
“[w]hat did you say to me?” and “[d]o you want to get down?” When defendant was
asked afterwards why he stabbed Xique, defendant said he “want[ed] to fight.” These
comments support the jury’s determination of premeditation and deliberation. In



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contrast, in Harris, the defendant attacked the victim without comment and for no
apparent reason.
              Second, the manner of killing in this case is stronger indicia of
premeditation than in Harris. (See People v. Anderson (1968) 70 Cal.2d 15, 26
(Anderson).) In Harris, supra, 43 Cal.4th at page 1277, the defendant wielded a butcher
knife, which can inflict a fatal wound even if clumsily handled. Here, defendant stabbed
Xique with a pocketknife. Defendant aimed the pocketknife precisely at the carotid
artery and chest, where the stabs would be fatal. The stab to the chest pierced the rib
cage and damaged the pericardial sac, the diaphragm, and the liver. The fact defendant
carried, unfolded, and used a pocketknife to kill Xique supports the inferences of
premeditation and deliberation because, to use a pocketknife to inflict fatal wounds,
defendant would have had to think carefully about how to use it and where to stab the
victim.
              As in Harris, “[u]nder these circumstances, [I] cannot say the jury could
not reasonably have found defendant guilty of first degree murder.” (Harris, supra, 43
Cal.4th at p. 1287.)
              The majority asserts that Harris is distinguishable from this case in two
ways. First, the majority states the defendant in Harris “armed himself with a butcher
knife” and went to the doughnut shop in the middle of the night, while defendant in this
case used a pocketknife he carried with him almost every day, and Xique came to
defendant’s home. (Maj. opn., ante, at p. 13.) The Harris opinion does not reveal why
the defendant had a butcher knife or why the defendant went to the doughnut shop. As I
have explained, defendant’s use of a pocketknife is stronger evidence of first degree
murder than use of a butcher knife. Second, the majority states the defendant in Harris
had no reason to leave the service window and go to the door where he killed the victim.
(Maj. opn., ante, at p. 14.) The majority says the lack of any reason for the defendant in



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Harris to approach the victim supports an inference of premeditation. (Ibid.) Under that
reasoning, the same inference would arise in this case.
              The important facts here are that defendant got up from the kitchen table,
walked to the open front door of the house, confronted Xique, fatally stabbed him by
placing a pocketknife directly in the carotid artery and rib cage, and later said he wanted
to fight Xique. This evidence is sufficient for the jury to have concluded defendant
weighed the considerations in forming his course of action. The time from the moment at
which defendant got up from the kitchen table to the time at which he stabbed Xique was
not long—perhaps 10 seconds to one minute. However, “premeditation can occur in a
brief period of time.” (People v. Perez (1992) 2 Cal.4th 1117, 1127.) “‘“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.]’ [Citation.]” (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)
              Except for the locale of the murder and the size of the knife, this case is not
distinguishable in any meaningful way from Harris.
              Substantial evidence supported a finding that defendant deliberated and
premeditated the murder of Xique and, therefore, I would affirm the jury verdict of first
degree murder.



                                           FYBEL, J.




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