People v. Munoz

COLOGNE, Acting P. J.

I concur in the majority opinion in its entirety and even though I am satisfied the jury reached its verdict on the felony-murder rule believe there is sufficient evidence to support that conviction nonetheless on the theory of premeditated acts.

After the initial contact with Klima intended to hassle the victim, the party then drove away. Sometime after this, admittedly a short time later, Munoz told Ramirez to stop and back up. About this time, he obtained the gun from *1018 Salinas and, without provocation, shot his victim “for the hell of it.” He had some time in which to develop his thoughts about a killing when he told the driver to stop and backup. I believe that period of the thought process is enough to support a jury’s finding premeditated and a first degree murder conviction.

“Since the decision in People v. Sanchez (1864), 24 Cal. 17, 30 , it has been repeatedly declared that ‘There need be no appreciable space of time between the intention to kill and the act of killing; they may be as instantaneous as successive thoughts of the mind,’ but this is not the equivalent of saying that the intention to kill can be formed without being preceded by deliberation and premeditation. It is only a declaration that the act of killing may instantaneously follow the intention once the latter is finally formulated. It does not imply that mature reflection (deliberation and premeditation) need not precede the ultimate formation of the evil intention. By its very language it has reference only to the ‘space of time between the intention to kill and the act of killing.’ In other words, a murder is of the first degree no matter how quickly the act of killing follows the ultimate formation of the intention if that intention has been reached with deliberation and premeditation. This view of the law is manifest in the Sanchez case by the statement (at p. 30 of 24 Cal.) that ‘The intent to kill must be the result of deliberate premeditation; it must be formed upon a pre-existing reflection, and not upon a sudden heat of passion sufficient to preclude the idea of deliberation.’ Neither the statute nor the court undertakes to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent which is truly deliberate and premeditated. The time would vary with different individuals and under differing circumstances. The true test is not the duration of time as much as it is the extent of reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly, but the express requirement for a concurrence of deliberation and premeditation excludes from murder of the first degree those homicides (not specifically enumerated in the statute) which are the result of mere unconsidered or rash impulse hastily executed. [f] The word ‘deliberate’ is an antonym of ‘Hasty, impetuous, rash, impulsive’ (Webster’s New Int. Diet. (2d ed.)) and no act or intent can truly be said to be ‘premeditated’ unless it has been the subject of actual deliberation or forethought (id.).” (People v. Thomas (1945) 25 Cal.2d 880, 900-901 [ 156 P.2d 7 ], italics in original; see also People v. Velasquez (1980) 26 Cal.3d 425, 435 [ 162 Cal.Rptr. 306 , 606 P.2d 341 ], judgment vacated and cause remanded (1980) 448 U.S. 903 [ 65 L.Ed.2d 1132 , 100 S.Ct. 3042 ], reiterated (1980) 28 Cal.3d 461 .)