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People v. Kozlowski3/4/2002
jury could reasonably infer a motive to kill the victim-which inference of motive, together with evidence of planning activity or the particular manner of the attempt to kill would in turn support an inference that the attempt to kill was the result of a pre-existing reflection and careful thought and weighing of considerations rather than a mere unconsidered or rash impulse hastily executed. The third category is facts about the nature of the attempted killing from which a jury could infer that the manner of attempted killing was so particular and exacting that the defendant must have intentionally attempted to kill according to a preconceived design to take this victim's life in a particular way for a reason that the jury can reasonably infer from evidence of planning activity or motive. (People v. Anderson, supra, 70 Cal.2d at pp. 26-27; People v. Rowland, supra, 134 Cal.App.3d at pp. 7- 8.)
On appeal, Kozlowski and Gatson suggest that all three of these factors should be present in order to find substantial evidence of premeditation and deliberation. They argue that there must be extremely strong evidence of planning as well as evidence of motive in conjunction with planning or the manner of the attempted killing in order to find premeditation and deliberation. However, the California Supreme Court instructs us to the contrary, that these three factors need not be present in any special combination nor that they must be accorded any particular weight. (People v. Sanchez, supra, 12 Cal.4th at p. 33.)
These factors do not establish normative rules, but provide descriptive, analytical guidelines for use in evaluating whether substantial evidence of premeditation and deliberation was presented to a jury. (People v. Sanchez, supra, 12 Cal.4th at pp. 32-33.) Applying this legal standard, much of Kozlowski and Gatson's argument in support of this claim of error fails.
We find evidence or reasonable inferences of all three factors were presented to the jury in this case. First, there was evidence of planning in Gatson's act of being armed with a weapon before kidnapping Lisa and Robyn. Use of a deadly weapon is not always evidence of a plan to kill, but obtaining a weapon in advance of an attempted killing has been held to support an inference of planning. (People v. Wright, supra, 39 Cal.3d at p. 593, fn. 5; see People v. Alcala (1984) 36 Cal.3d 604, 626; People v. Hayes (1985) 172 Cal.App.3d 517, 525, fn. 6 [presence of gun in car is equivocal on issue of planning].) There was evidence that the tape used by Kozlowski and Gatson to restrain Lisa and Robyn was not from Robyn's car, but had been seen before the kidnapping, evidence suggesting that one of the defendants brought the tape. This evidence would allow a reasonable jury to infer that Kozlowski and Gatson planned to commit their crimes. The fact that Robyn was instructed to drive to an isolated area where the attempt to kill occurred also allows a reasonable inference of planning in order to avoid detection and thus, sufficient evidence of premeditation and deliberation. (People v. Alcala, supra, 36 Cal.3d at pp. 626-627.)
Kozlowski and Gatson contend that there was no evidence of motive to kill, arguing that the prosecutor appears to have conceded that he was uncertain what their motive was for the kidnapping. The issue before us is whether there was sufficient evidence of premeditation and deliberation on the attempted murder counts. Even assuming arguendo that there was no clear evidence of motive for the kidnapping, we find ample evidence of motive to attempt to kill Lisa and Robyn. The need to escape apprehension may be a motive to kill for purposes of premeditation and deliberation. (People v. Bloyd (1987) 43 Ca
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