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People v. Kozlowski3/4/2002
l.3d 333, 348.) In this case, the victims' friend Holly was dating Kozlowski's brother Anthony. Although neither had ever met Anthony or his brother before the night of the crimes, they could identify their attackers through Holly. (See People v. Perez (1992) 2 Cal.4th 1117, 1126-1127 [possibility of identification as evidence of motive].) This evidence discloses a plausible motive for the attempts to kill Lisa and Robyn-to avoid arrest for kidnapping, carjacking and robbery. (See id. at p. 1126; People v. Alcala, supra, 36 Cal.3d at p. 627.)
Finally, the manner of the assault on Lisa and Robyn supports an inference of premeditation and deliberation. The two girls were repeatedly shot or stabbed, then after a pause, both were knifed again after Kozlowski told Gatson to make sure that they were dead. The opportunity to reflect is circumstantial evidence of premeditation and deliberation. (See People v. Wright, supra, 39 Cal.3d at p. 593; see also In re Larkin, supra, 48 Cal.3d at p. 245.) The fact that the attempt to kill each girl was perpetrated by knife wounds rather than solely by rapid gunfire is also evidence tending to support a finding that the manner of the attempt to kill demonstrated premeditation and deliberation. Common sense tells us that knife wounds may take longer to inflict than bullet wounds and are necessarily perpetrated at close range where the assailant can better assess the injuries as they are being inflicted. Stabbing as the manner of injury may thus be stronger evidence of an opportunity to stop and reconsider these actions-and thus, stronger evidence of an opportunity for premeditation and deliberation-than injury by gunshot might be.
Kozlowski and Gatson construe the evidence in other manners, offering other less culpable inferences that they assert are reasonable based on the evidence. These claims are no more than an argument that the evidence may be construed to support inferences more favorable to the appellant. While that argument may be made to a jury in a trial court, it is unavailing on appeal. (People v. Bloom (1989) 48 Cal.3d 1194, 1209, cert. den. sub nom. Bloom v. California (1990) 494 U.S. 1039.) When reviewing the sufficiency of the evidence to support a jury's verdict, we must view the evidence, and all inferences that may be drawn from it, in favor of the jury's verdict. (See People v. Redmond (1969) 71 Cal.2d 745, 755; People v. Rowland, supra, 134 Cal.App.3d at pp. 5-6.) Having done so, we find evidence of planning, motive and the manner of the killing sufficient to find premeditation and deliberation, and thus, find sufficient evidence to support the jury's verdict that Kozlowski and Gatson each committed attempted murder.
IV. JURY INSTRUCTIONS
A. Extortion of PIN Code
Kozlowski and Gatson argue that the trial court's instruction defining extortion for purposes of kidnapping for extortion violated their federal constitutional rights to due process and a jury trial by removing from the jury an element of the offense. (See People v. Flood (1998) 18 Cal.4th 470 [instructing jury that police officers involved were "peace officers," which was element of offense charged, Veh. Code, ยง 2800.3].) The focus of their complaint is the court's reference to PIN code in defining extortion. The contention lacks merit.
In defining the crime of extortion, the trial court instructed: "Every person who obtains money, property or a PIN code from another with her consent, which consent has been induced by a wrongful use of force or fear, is guilty of the crime of extortion in violation of Penal Code Section 518." This instruction did no more than define what objects may be wrongfully obtained for purposes of extortio
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