People v. Herr CA4/2

Filed 1/5/21 P. v. Herr CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E073223

v. (Super.Ct.No. FVI1300363)

SCOTT DAVID HERR, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Charles J. Umeda,

Judge. Affirmed with directions.

Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J.

Hilton, Deputy Attorneys General, for Plaintiff and Respondent.

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 A jury convicted defendant Scott David Herr of first degree murder for strangling

Sue Paynter (Paynter) to death in 1994. The crime was not solved until 2013, when DNA

extracted from semen found on the victim’s clothing was found to be a match to

defendant’s DNA profile. On appeal, defendant principally argues (1) the trial court

erred prejudicially by admitting evidence he strangled but did not kill Jane Doe (Doe) in

Arizona in 1995, and (2) there is no substantial evidence the murder of Paynter was

willful, deliberate, and premeditated. Defendant also argues, and the People concede,

that (1) the trial court erred by imposing a parole revocation restitution fine under a

statute that was not enacted until after his offense, (2) the trial court applied the wrong

statute when calculating defendant’s presentence custody credits, and (3) the abstract of

judgment must be corrected to eliminate confusion about defendant’s sentence.

We agree with the People’s concessions, correct the judgment appropriately, and

direct the superior court clerk to prepare an amended abstract of judgment. In all other

respects, the judgment is affirmed.

I.

PROCEDURAL BACKGROUND

A jury found defendant guilty on the sole count of first degree murder. (Pen.

Code, § 187, subd. (a).) The trial court sentenced defendant to state prison for 25 years to

life and awarded him 3,122 days of presentence credit toward his sentence (2,342 days in

presentence custody plus 780 days of conduct credit). And, relevant here, the court

ordered defendant to pay a $350 restitution fine and a $350 parole revocation restitution

fine but stayed the latter pending successful completion of parole.

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 II.

FACTS

A. 1994: Discovery of Paynter’s Body and the Initial Investigation.

According to testimony from Paynter’s daughter, in 1994, Paynter was a heroin

addict who prostituted herself mostly at truck stops in Bakersfield. The last time she was

seen by her daughter was either March 29 or 30. Paynter told her daughter she was going

to travel to Sacramento with a truck driver, but she would be back “three to four days

before Easter.” Paynter packed some clothing and makeup. Her daughter testified that

Paynter owned a pair of pink shorts and a plaid, pink, flannel shirt.

On the morning of April 1, 1994, a man was driving home from work when he

pulled to the side of the road in an undeveloped area. The area where he stopped was

dark and unlit, but he could see in the moonlight. As he stopped, the man saw a newer

model tractor-trailer truck with a sleeping cabin pull away from the side of the roadway

and drive past him. He did not see the driver’s face or notice the color of the truck, and

he could not remember the make of the truck. The man got out of his vehicle and walked

about five feet into the bushes to relieve himself. He saw a pair of legs sticking out from

the bushes about 20 feet away and, when he walked over to the bushes, he saw a body.

The man drove to the Adelanto police station to report what he had seen.

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 Police officers responded to where the body had been found. The desert area was

secluded and off a dirt road, about one mile from some industrial buildings. About 30

feet from the road, the officers found the body of a woman, laying on her right side, “by a

large bush or brush.” The woman had discoloration in her face and lower back, and she

was cold to the touch. She was barefoot and wearing a pair of light pink shorts, a mauve

shirt that was tucked into the shorts but pulled up in the back, and a flannel shirt. Her bra

was unfastened. When the coroner arrived and turned over the body, the officers saw that

her shorts were also unbuttoned and her underwear was torn on one side. Fresh tire

tracks discovered in a “turn-around-type area” not far from the body were consistent with

a large tractor-trailer truck.

During a postmortem examination, a pathologist observed that the woman’s eyes

were very congested with blood, and she had petechial hemorrhages in her eyelids. She

also had a small abrasion on her nose and a number of bruises or abrasions on her legs.

There was bruising and redness on her neck. An internal examination of her neck

revealed hemorrhaging in the tissue of the larynx and the airway. The pathologist opined

the cause of death was manual strangulation, and the assailant had strangled the woman

for three to four minutes and applied at least “four [to] five pounds” of pressure “per

square inch” to her neck. A sexual assault examination revealed no signs of trauma to the

vagina or rectum, but the pathologist testified that the results did not mean the woman

had not had sex before she died. The woman’s blood tested positive for the presence of

cocaine and opiates, probably from heroin.

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 B. 1995: Defendant’s Strangulation of Doe in Arizona.

Doe testified she was a club manager, stripper, and prostitute in Phoenix, Arizona.

On November 20, 1995, while she was hitchhiking, defendant stopped his newer model

semitruck and spoke to her. Doe testified that she was not prostituting herself at the time,

but she did need a ride. Doe got into defendant’s truck, and they drove for a couple of

miles to an empty cul-de-sac in an industrial area. Defendant, who was bigger than her,

moved her into the sleeping cab of the truck, bound her with duct tape, and gagged her

with “a rolled up dirty sock.” He threatened her and said he was going to kill her.

Defendant then drove Doe to an unimproved desert area, about 45 miles away. He

brutalized and tortured her over a seven-hour period. He raped her, both vaginally and

anally, but ejaculated on himself. While raping her, defendant put his hands around her

neck and strangled her until she passed out. She tried to resist and had to fight to breathe.

When she came to, he once again strangled her until she passed out. He repeated this at

least one more time. All the while, defendant threatened to kill her. She did not beg for

her life because she was gagged. After strangling Doe a third time, defendant “cut [her]

loose” and “dumped [her] out” at her “sponsor’s house,” which was near the area she

originally had been hitchhiking.

C. 2012-2014: DNA Analysis of Paynter’s Shorts and Further Investigation.

In 1994, Paynter’s clothing was screened for biological evidence, and semen was

discovered on her pink shorts. Because the laboratory was not equipped to conduct DNA

testing at the time, the sections of material where the semen was discovered were cut out

so they could be frozen and preserved for future testing.

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 In 2012, DNA testing was performed on two of the cuttings from the shorts, which

revealed DNA from Paynter and an unknown male. In January 2013, the DNA profile

for the male was confirmed to be a match to defendant’s DNA profile on CODIS.1

After receiving the results of the match on CODIS, detectives traveled to Phoenix

in January 2014 to interview defendant. Defendant told the detectives he had worked as a

truck driver in 1994, and he drove all over the United States and Canada in a brand new

Volvo tractor-trailer truck, which also had a sleeping cabin. He said he had been married

once, for about a month, and currently did not have a girlfriend. Defendant told the

detectives he had “extremely dark” fantasies about raping and torturing prostitutes. He

said when he was about 19 years old, a prostitute in a “porn shop” offered to perform oral

sex on him for $5. While performing the act in a dark room, the prostitute stole $400

from his wallet. After that experience, defendant’s fantasies focused on prostitutes.

When discussing his fantasies, defendant said he thought he could get away with

raping and killing prostitutes because “nobody would really care, you know, it’s not

really a woman, it’s just a prostitute, and I had a lot of distorted thinking.” Part of his

fantasy was to overpower the prostitutes because of his size and take away their ability to

say, “no,” to him. Defendant’s fantasies involved having sex with the prostitutes, then

torturing and strangling them “to raise the ante” and “get the intensity higher” so he could

masturbate and ejaculate. Part of the arousal for defendant in his fantasies was for the

1 CODIS, an acronym for Combined DNA Index System, is “a nationwide
database that enables law enforcement to search DNA profiles collected from federal,
state, and local collection programs.” (People v. Buza (2018) 4 Cal.5th 658, 666.)

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prostitute to be “scared” and timid. In his fantasies, defendant strangled the prostitutes

with his bare hands from the front, instead of with a rope, because it would not be messy.

And after killing the prostitutes, he planned to bury them.

Defendant told the detectives that while he was driving a truck, he would pick up

prostitutes from truck stops and rest areas “all over,” and he had vaginal, anal, and oral

sex with them. He was aroused by their naked bodies, but he said that to ejaculate he had

“to sit there and fantasize about rape or whatever.” Defendant said that, while driving

from Texas to Phoenix, he started thinking about picking up a prostitute to see if he could

rape and torture her. When he arrived in Phoenix, “the fantasy kinda looked like it was

more and more real.”

Defendant picked up Doe because she looked like someone he could overpower.

He drove her to an industrial area and paid her for sex. They got undressed and moved

into the sleeper cabin. He said that, while “having consensual sex” with her, he tried to

convince himself “to change it up from this to rape,” and finally he “talked [him]self into

it.” Defendant told Doe to put her hands behind her back and “do as you’re told [and]

you won’t get hurt.” Using duct tape he “bought specifically for this,” he bound her

hands and ankles and gagged her.

Defendant “expected fear” as part of the fantasy, but he “couldn’t get off on that

because . . . [Doe] wasn’t scared.” He had anal sex with her and said he was going to

torture and kill her, but he got “no reaction.” He became frustrated because she was

“extremely compliant” and did not react with fear, as he wanted. He then tried to strangle

her from the front but stopped because she did not have the look of fear in her eyes, and

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his hands started to cramp up. Defendant told the detectives, “It wasn’t doing it for me,”

and “I . . . realized . . . I can’t do this.” Had Doe shown fear, defendant believed he

“would have followed right through with all [his] fantasies.” When asked if that meant

he would have killed her, he replied, “I believe so.” Defendant untied Doe, apologized

and offered to pay for any medical bills, and drove her home. He drove as far as the

California border but decided to turn himself in to the police.

When asked by detectives if he had tried to act out his fantasies before the incident

with Doe, defendant said, “there [were] a couple start and stops.” He picked up a

prostitute at a rest stop in Tulare and another in Stockton. He told them “something’s

gonna happen,” but then realized he could not go through with it and played it off “like

it’s a joke.” The detectives asked him if some of his fantasies had become a reality with

a woman in the Barstow area, but he replied, “Not that I know of.”

Defendant did not recognize Paynter from a photograph he was shown and said he

had no idea if he had ever seen her before. When told there was physical evidence

connecting him to her murder and his DNA was found on her, defendant denied knowing

anything about it. He denied that he might have blurred the lines between fantasy and

reality, saying, “I think I would know if I killed somebody.” The detectives did not

portray Paynter as a prostitute in order to humanize her and make defendant feel guilty.

Defendant said he had been with prostitutes “all over the place,” and “[n]obody else

would give [him] the time of day.” When asked if he denied having “any type of sexual

relationship with [Paynter] at all,” defendant replied, “I have no idea” and “she’s not

familiar.” He had no explanation of why his DNA was found on Paynter’s shorts. But,

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when one of the detectives said, “we know that you had sexual relations with her,”

defendant replied, “Okay then, she obviously [was] the prostitute[] that I was with over

there.”

III.

DISCUSSION

A. The Trial Court Correctly Admitted Evidence of Defendant’s Uncharged

Conduct to Prove Intent and Motive.

Defendant argues that the trial court erred prejudicially by admitting evidence of

his rape and strangulation of Doe. We find no abuse of discretion and, if there was error,

it was harmless.

1. Additional background.

At a hearing on competing motions about the admissibility of defendant’s 1995

acts against Doe, the prosecutor argued the uncharged conduct was relevant and

admissible under Evidence Code section 1101, subdivision (b) (hereafter § 1101(b)) to

prove defendant intended to kill in the current case, and it was not excludable pursuant to

Evidence Code section 352. According to the prosecutor, when defendant was

interviewed in 2013, he told investigators about his fantasy of killing a prostitute, “and

one of the key components [of that fantasy] is the victim needs to beg for her life in order

for him to complete the murder.” Defendant did not kill Doe because she did not beg for

her life so, the prosecutor argued, “we can infer from those actions that the victim in the

current case must have begged and pleaded for her life because she did die of

strangulation.” Defendant told Doe (and later investigators) that he intended to kill her,

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but he did not do so because “she didn’t fulfill his fantasies.” The prosecutor also argued

that the evidence was admissible to prove motive. The defendant told investigators that

his fantasies involved killing prostitutes because they would not be missed, and he

strangled them with his hands “because it’s not messy.” Defendant strangled both

Paynter and Doe but said he did not kill Doe because she was “compliant and let[] him

hurt her.” Finally, the prosecutor argued that the evidence was admissible to prove a

“common plan or design.”

Defense counsel argued the facts of the 1995 assault on Doe and the 1994 murder

of Paynter were so different that it would be irrational to conclude the same assailant was

responsible for both cases. Defendant sexually assaulted Doe repeatedly, but there was

no evidence of sexual intercourse with Paynter. Defendant tortured and brutalized Doe

but, besides the strangulation, Paynter was not beaten. And, although defendant told Doe

and investigators that he intended to kill her, and he repeatedly strangled her, he did not

kill her. Moreover, defense counsel argued there was no practical reason to introduce

uncharged conduct in order to prove an intent to kill Paynter because premeditation or at

least reckless disregard for human life could be inferred from the strangulation itself. He

also argued the evidence did not prove motive because, other than the fact Paynter was

strangled, there was no evidence she was murdered to fulfill a fantasy, and the evidence

was not sufficient to prove a common plan or scheme. Finally, counsel argued the

evidence was more inflammatory than probative and should be excluded under Evidence

Code section 352.

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 The trial court found there were enough similarities between defendant’s assault

on Doe and the murder of Paynter to support the admission of the uncharged conduct to

prove intent and motive. However, the court limited the scope of the evidence the

prosecutor could admit to evidence that (1) defendant picked up Doe and drove her to an

industrial area, (2) he told her he would have sex with her whether she was a prostitute or

not, (3) he “duct taped her mouth” and had vaginal and anal sex with her numerous times,

but only ejaculated on himself, (4) he threatened to kill her, and (5) he strangled her three

times from the front with both hands until she passed out, but ultimately said he could not

kill her. The court ruled the prosecutor could not elicit testimony about “other details” of

the assault, including that defendant gouged Doe’s eye, bent her finger back until it

broke, and hit her with a hammer. In addition, the court ruled the evidence was not

admissible to prove “common plan or scheme.”

Following his conviction, defendant moved for a new trial contending the

testimony about his assault and strangulation of Doe was “shocking in its nature” and

violated his right to a fair trial. The trial court once more found the probative value of the

evidence outweighed its prejudicial impact and denied the motion.

2. Applicable law.

“Only relevant evidence is admissible (Evid. Code, §§ 210, 350), ‘and all relevant

evidence is admissible unless excluded under the federal or California Constitution or by

statute. (Evid. Code, § 351; see also Cal. Const., art. I, § 28, subd. (d).)’ [Citation.] ‘The

test of relevance is whether the evidence tends “logically, naturally, and by reasonable

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inference” to establish material facts such as identity, intent, or motive.’” (People v.

Harris (2005) 37 Cal.4th 310, 337.)

Evidence Code section 1101, subdivision (a), generally prohibits admission of

evidence of a person’s character, including evidence of character in the form of specific

instances of uncharged misconduct, “to prove his or her conduct on a specified occasion.”

Section 1101(b) clarifies, however, that this rule does not prohibit the admission of

evidence of uncharged misconduct when it is relevant to establish some fact other than

the person’s disposition to commit such an act, such as motive, intent, and absence of

mistake or accident.

“‘“[T]he admissibility of other crimes evidence depends on (1) the materiality of

the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those

facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.”’”

(People v. Fayed (2020) 9 Cal.5th 147, 191.) “The conduct may also have occurred after

the charged events, so long as the other requirements for admissibility are met.” (People

v. Leon (2015) 61 Cal.4th 569, 597.)

“The least degree of similarity (between the uncharged act and the charged

offense) is required in order to prove intent. [Citation.] ‘[T]he recurrence of a similar

result . . . tends (increasingly with each instance) to negative accident or inadvertence or

self-defense or good faith or other innocent mental state, and tends to establish

(provisionally, at least, though not certainly) the presence of the normal, i.e., criminal,

intent accompanying such an act . . . .’ [Citation.] In order to be admissible to prove

intent, the uncharged misconduct must be sufficiently similar to support the inference that

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the defendant ‘“probably harbor[ed] the same intent in each instance.”’” (People v.

Ewoldt (1994) 7 Cal.4th 380, 402.)

“‘[T]he probativeness of other-crimes evidence on the issue of motive does not

necessarily depend on similarities between the charged and uncharged crimes, so long as

the offenses have a direct logical nexus.’” (People v. Fayed, supra, 9 Cal.5th at p. 191.)

There must be sufficient evidence showing in each instance the defendant acted with the

same motive. (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 827; People v.

McCurdy (2014) 59 Cal.4th 1063, 1097.)

“The probative value of the uncharged offense evidence must be substantial and

must not be largely outweighed by the probability that its admission would create a

serious danger of undue prejudice, of confusing the issues, or of misleading the jury.”

(People v. Kipp (1998) 18 Cal.4th 349, 371.) “[E]vidence of uncharged misconduct ‘“is

so prejudicial that its admission requires extremely careful analysis”’” under Evidence

Code section 352. (People v. Lewis (2001) 25 Cal.4th 610, 637.) “‘The “prejudice”

referred to in Evidence Code section 352 applies to evidence which uniquely tends to

evoke an emotional bias against the defendant as an individual and which has very little

effect on the issues. In applying section 352, “prejudicial” is not synonymous with

“damaging.”’” (People v. Karis (1988) 46 Cal.3d 612, 638.)

“‘“Rulings made under [Evidence Code sections 1101 and 352 . . .] are reviewed

for an abuse of discretion. [Citation.]” [Citation.] “Under the abuse of discretion

standard, ‘a trial court’s ruling will not be disturbed, and reversal . . . is not required,

unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd

13
manner that resulted in a manifest miscarriage of justice.’”’” (People v. Rogers (2013)

57 Cal.4th 296, 326.)

3. Analysis.

Defendant argues the trial court should not have admitted evidence of the assault

on Doe in order to prove an intent to kill Paynter because “it could not be disputed that

the killer intended to kill.” But, because defendant pleaded not guilty, the prosecutor was

required to affirmatively prove every element of the offense of first degree murder

beyond a reasonable doubt, including the intent to kill. (Pen. Code, § 1019; People v.

Walker (2006) 139 Cal.App.4th 782, 796.)

In addition, defendant argues the charged offense and the uncharged conduct

“were not sufficiently similar” to warrant admitting the uncharged conduct to prove

intent. True, there were distinct points of dissimilarity between the incidents, most

importantly that Paynter was murdered while Doe was not, and Doe was bound and

gagged, but there was no evidence Paynter was. But, the similarities were significant.

Both were prostitutes, although Doe testified she was not working when defendant picked

her up. Paynter’s assailant engaged in some form of sex with her, though not to the same

extent that defendant had with Doe. In both instances, the assailant ejaculated outside the

victim’s body. There is circumstantial evidence from which a jury could conclude

Paynter was taken by her assailant somewhere remote before, during, and after her

murder, and Doe expressly testified that defendant had driven her to a remote location

where he raped and strangled her. And both victims were manually strangled from the

front. Defendant told the detectives he did not kill Doe because he was unable to

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provoke fear in her, but he probably would have killed her had she begged for her life and

shown fear. Therefore, we conclude the charged and uncharged conduct was

“sufficiently similar to support the inference that the defendant ‘“probably harbor[ed] the

same intent in each instance.”’” (People v. Ewoldt, supra, 7 Cal.4th at p. 402; see People

v. Walker, supra, 139 Cal.App.4th at p. 805 [fact prior victim was not murdered “does

not negate the similarity of the two incidents”].)

As he does with respect to intent, defendant argues the uncharged conduct was

also cumulative with respect to the question of motive. For that reason, he contends the

evidence was highly prejudicial and should have been excluded under Evidence Code

section 352. Defendant is correct that evidence of what happened to Doe was

inflammatory. But, the analysis under section 352 requires a comparison between the

inflammatory nature of the uncharged conduct and that of the charged offense. “The

potential for . . . prejudice is ‘decreased’ when testimony describing the defendant’s

uncharged acts is ‘no stronger and no more inflammatory than the testimony concerning

the charged offenses.’” (People v. Eubanks (2011) 53 Cal.4th 110, 144, quoting People

v. Ewoldt, supra, 7 Cal.4th at p. 405.) Though indisputably horrifying, the evidence of

what defendant did to Doe was certainly no more and perhaps less inflammatory than the

fate that ultimately befell Paynter, who was murdered and left on the side of the road.

Finally, even if we were to agree with defendant that the trial court abused its

discretion by admitting the uncharged conduct, we cannot reverse the judgment unless we

conclude the error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; Evid.

Code, § 353, subd. (b).) Erroneous admission of uncharged conduct under

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section 1101(b) is harmless if “it is not reasonably probable that a result more favorable

to defendant would have resulted absent admission of [the] evidence.” (People v. Welch

(1999) 20 Cal.4th 701, 750, citing People v. Watson (1956) 46 Cal.2d 818, 836.)

Even without the evidence of defendant’s rape and strangulation of Doe, the

prosecution introduced strong direct and circumstantial evidence that defendant murdered

Paynter. During his interview, defendant described in great detail his “fantasy” of raping

and strangling prostitutes, and he articulated his motive for having such a fantasy. He

operated a new tractor-trailer truck, with a sleeping cabin, at the time of the murder, and

it was consistent with the truck observed by the man who found Paynter’s body and

consistent with the tire tracks found nearby. Defendant admitted he picked up prostitutes

“all over” in truck stops and rest areas. According to her daughter, Paynter did work as a

prostitute, mostly at truck stops. And, the state of undress in which her body was found,

the semen stains found on her shorts that contained defendant’s DNA, and the cause of

her death were all consistent with defendant’s fantasy of strangling prostitutes to death

while engaged in sex acts to elicit a fear response so he could masturbate and ejaculate.

Therefore, even if the trial court erred by admitting evidence of the uncharged

conduct, defendant was not prejudiced.

B. Substantial Evidence Supports Defendant’s Conviction for First Degree

Murder.

Defendant argues the prosecutor presented no evidence that the murder by

asphyxiation was deliberate and premeditated, and the mere fact Paynter died by manual

strangulation is not enough to support the inference of a deliberate and premeditated act.

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Therefore, he contends the conviction must be reduced to second degree murder. We

disagree.

1. Applicable law.

“Where, as here, a defendant challenges the sufficiency of the evidence on appeal,

we review the whole record in the light most favorable to the judgment below to

determine whether it discloses substantial evidence—evidence that is reasonable,

credible, and of solid value—such that a reasonable trier of fact could find the defendant

guilty beyond a reasonable doubt. [Citations.] A reviewing court must reverse a

conviction where the record provides no discernible support for the verdict even when

viewed in the light most favorable to the judgment below. [Citation.] Nonetheless, it is

the jury, not the reviewing court, that must weigh the evidence, resolve conflicting

inferences, and determine whether the prosecution established guilt beyond a reasonable

doubt. [Citation.] And if the circumstances reasonably justify the trier of fact’s findings,

the reviewing court’s view that the circumstances might also reasonably be reconciled

with a contrary finding does not warrant reversal of the judgment.” (People v. Hubbard

(2016) 63 Cal.4th 378, 392.)

Murder is the unlawful killing of a human being or fetus with malice aforethought.

(Pen. Code, § 187, subd. (a).) Malice may be express or implied. (Pen. Code, former

17
§ 188, 1st par.)2 Express malice means “a deliberate intention unlawfully to take away

the life of a fellow creature.” (Ibid.) Malice is implied “when no considerable

provocation appears, or when the circumstances attending the killing show an abandoned

and malignant heart.” (Ibid.) An unlawful killing with express malice, such as a “willful,

deliberate, and premeditated killing,” is first degree murder. (Pen. Code, former § 189,

1st par.) An unlawful killing with implied malice is second degree murder. (Ibid.)

To prove a killing was willful, deliberate, and premeditated, the prosecutor is not

required to prove the defendant “maturely and meaningfully reflected upon the gravity of

his or her act.” (Pen. Code, former § 189, 4th par.) “‘An intentional killing is

premeditated and deliberate if it occurred as the result of preexisting thought and

reflection rather than unconsidered or rash impulse.’ [Citation.] The reflection may be

arrived at quickly; it need not span a specific or extended period of time.” (People v.

Lopez (2018) 5 Cal.5th 339, 354-355.)

A killing is willful if it is done intentionally. (People v. Delgado (2017) 2 Cal.5th

544, 571; People v. Moon (2005) 37 Cal.4th 1, 29; see Pen. Code, § 7, subd. (1) [“The

word ‘willfully,’ when applied to the intent with which an act is done or omitted, implies

2 Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.)
amended Penal Code sections 188 and 189 (Stats. 2018, ch. 1015, §§ 2, 3) to separate
their previously unnumbered paragraphs “into sequential subdivisions and subsections.”
(People v. Prado (2020) 49 Cal.App.5th 480, 488, fns. 5, 6.) The substantive
amendments made to those sections by Senate Bill No. 1437 have no bearing here. For
the sake of clarity, we will cite to and quote from Penal Code former sections 188 and
189 as they read on the date of defendant’s offense. (See Cal. Style Manual (4th ed.
2000) § 2:7, pp. 50-51 [“If a section or subdivision has several unnumbered or unlettered
paragraphs, specific paragraphs should be referenced.”].)

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simply a purpose or willingness to commit the act, or make the omission referred to.”].)

Direct evidence of intent is rarely available, but intent to kill may be inferred from the

circumstances of the crime and a defendant’s actions. (People v. Sánchez (2016)

63 Cal.4th 411, 457.)

With respect to premeditation and deliberation, our Supreme Court has identified

three categories of evidence to consider: planning activity, motive, and the manner of the

killing. (People v. Anderson (1968) 70 Cal.2d 15, 26-27.) When the record contains

evidence in all three categories, the verdict is generally affirmed. (People v. Stitely

(2005) 35 Cal.4th 514, 543.) But those categories or factors are not exclusive or

determinative—they are merely intended to guide a reviewing court’s assessment of

whether the evidence supports a reasonable inference that the killing was the result of the

defendant’s preexisting reflection and not the result of an unconsidered or rash impulse.

(People v. Cage (2015) 62 Cal.4th 256, 276.) “[C]onvictions for first degree murder

typically have been upheld where there is ‘“either very strong evidence of planning, or

some evidence of motive in conjunction with planning or a deliberate manner of

killing.”’” (People v. Proctor (1992) 4 Cal.4th 499, 529.)

2. Analysis.

As the People contend, the manner of killing in this case strongly supports the

inference that the murder by manual strangulation was deliberate and premeditated.3

“[C]ase law holds that killing a victim by strangulation shows the type of premeditation

3As stated, ante, defendant does not argue the evidence failed to establish the
murder was intentional, as opposed to accidental.

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and deliberation necessary to support a conviction for first degree murder.” (People v.

Quintanilla (2020) 45 Cal.App.5th 1039, 1064.)

In People v. Hovarter (2008) 44 Cal.4th 983, the victim was strangled with a rope,

and it took between five and eight minutes for her to die. (Id. at pp. 1019-1020.) The

court held: “This prolonged manner of taking a person’s life, which requires an offender

to apply constant force to the neck of the victim, affords ample time for the offender to

consider the nature of his deadly act.” (Id. at p. 1020.) The defendant in People v.

Stitely, supra, 35 Cal.4th 514 applied “lethal pressure” to the victim’s neck for a “‘long’

time.” (Id. at p. 544.) The court held: “This evidence suggests defendant had ample

opportunity to consider the deadly consequences of his actions.” (Ibid.) And in People v.

Davis (1995) 10 Cal.4th 463, the defendant strangled a woman for as long as five minutes

after she had suffered internal injuries during a car accident. (Id. at p. 510.) The

Supreme Court held the jury could reasonably infer the defendant premeditated and

deliberated before killing the victim. (Ibid.)

As indicated, ante, a pathologist testified that the hemorrhaging found in Paynter’s

eyes and internal neck and airway tissues was consistent with manual strangulation from

the front. When asked how long the strangulation would have lasted, he answered,

“about three to four minutes and that’s assumed it’s being sustained the whole time with

no breaks, so to speak.” He further explained: “[I]n order to cause damage to the brain

that’s irreversible, it takes somewhere in the order of three to four minutes because the

brain cannot survive being deprived of adequate oxygenation for more than that.” And

when asked how much pressure had to have been applied to Paynter’s neck, he testified it

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would have been “four, five pounds, at the minimum, per square inch and upwards from

there.” From the evidence that defendant applied significant force to Paynter’s neck for a

“prolonged period of time, a rational juror could find that [he] committed a premeditated

and deliberate murder.” (People v. Shamblin (2015) 236 Cal.App.4th 1, 11.)

Relying on People v. Rowland (1982) 134 Cal.App.3d 1, defendant argues,

“Strangling a person does not by itself indicate a preconceived design to kill.” This court

found Rowland to be unpersuasive in a case where the evidence showed the defendant

strangled his victim for one to five minutes, during which he applied 15 to 30 pounds of

pressure to her throat. (People v. Shamblin, supra, 236 Cal.App.4th at pp. 11-12.)

“Rowland is a case where the court found, on the limited evidence in the record, that the

mere fact that the victim was strangled with an electric cord was insufficient to support a

finding of premeditation and deliberation. [Citation.] Since Rowland, the California

Supreme Court has held that strangulation that takes place over several minutes affords

the killer ample time to think over the consequences of his action. [Citations.] Not only

did Rowland predate this precedent, but also it is a case where there was no expert

testimony about the length of time it took to kill the victim or about the extent of the

victim’s injuries. For these reasons Rowland does not affect our conclusion that the

evidence in this case supports a finding of prolonged strangulation and, as a result,

premeditation and deliberation.” (Shamblin, at p. 12; see People v. Disa (2016)

1 Cal.App.5th 654, 667-668 [distinguishing Rowland in a case where “there was

significant additional evidence regarding the manner of killing . . . absent from

Rowland”].)

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 So too here. Whereas in Rowland the reviewing court had no evidence before it

about the duration of the strangulation or the amount of force applied to the victim’s

neck, here the jury heard evidence that defendant would have had to have strangled

Paynter for three to four minutes with no break, while applying at least “four [to] five

pounds” of pressure “per square inch” to her neck in order to kill her.

Finally, we agree with the People that strong evidence of defendant’s motivation

for the killing, and somewhat weaker evidence of planning activity, also supports the

jury’s finding that the murder was deliberate and premeditated. During his interview

with detectives, defendant described in significant detail his fantasy of raping and killing

prostitutes. He singled out prostitutes because of the negative experience he had with one

when he was around 19 years old and because he believed they were not real women and

would not be missed. Defendant said prostitutes’ naked bodies, and the sex acts

themselves, were not enough for him to achieve climax. Instead, he needed to fantasize

about threatening, then strangling, the women to instill terror and timidity for him to

increase the intensity of the act. From the state of Paynter’s clothing—unfastened bra,

unbuttoned shorts, shirt pulled up in the back, and torn underwear on one side—and

defendant’s semen discovered on her shorts, the jury could reasonably have concluded

defendant had at least some limited sexual contact with her, during which he acted out his

strangulation fantasy and achieved the desired fear response he needed so he could

masturbate and ejaculate. And from the circumstantial evidence that defendant left her

body on the side of the road in an undeveloped part of Adelanto, a newer truck similar to

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defendant’s was seen driving off, and consistent tire treads were found near her body, a

reasonable jury could infer defendant planned out the murder to some degree.

In sum, we conclude there is substantial evidence in the record to support the

jury’s finding that the murder was deliberate and premeditated.

C. Sentencing Errors.

Defendant contends, and the People mostly concede, that certain errors at

sentencing must be corrected.

First, defendant contends the trial court erred by imposing a $350 parole

revocation restitution fine because the statute mandating such a fine was not enacted until

1995, one year after his offense. (Pen. Code, § 1202.45, as enacted by Stats. 1995, ch.

313, § 6, eff. Aug. 3, 1995.) “The United States Constitution states: ‘No state shall . . .

pass any . . . ex post facto law . . . .’ (U.S. Const., art. I, § 10, cl. 1.) The California

Constitution also provides that an ‘ex post facto law . . . may not be passed.’ (Cal.

Const., art. I, § 9.) Our California provision provides the same protections and is

analyzed in the same manner as the federal provision.” (In re Vicks (2013) 56 Cal.4th

274, 287.) “The purpose of the ex post facto doctrine is to ensure fair notice of the

conduct that constitutes a crime and of the punishment that may be imposed for a crime.

[Citation.] Therefore, it is ‘aimed at laws that “retroactively alter the definition of crimes

or increase the punishment for criminal acts.”’” (Ibid., fn. omitted.) The People concede

that imposition of the later enacted parole revocation restitution fine on defendant

violates the ex post facto clauses, and it must be stricken. (People v. Callejas (2000)

85 Cal.App.4th 667, 676-678 [so holding].) We agree and strike the fee.

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 Next, defendant argues the trial court violated the ex post facto clauses when it

calculated his presentence conduct credits pursuant to Penal Code section 2933.1, a

statute that did not become effective until five months after his offense. (Stats. 1994,

ch. 713, § 1, eff. Sept. 21, 1994.) But as the People assert in their brief, although the

minute order and abstract of judgment purport to indicate the court calculated conduct

credits under section 2933.1, the transcript of oral proceedings expressly states the court

“computed [conduct credits] pursuant to Penal Code section 2931.” When the minutes

and abstract of judgment conflict with the oral pronouncement of sentence, the latter must

generally prevail. (People v. Leon (2020) 8 Cal.5th 831, 855.)

In any event, the People concede the trial court erred by applying Penal Code

section 2931 because that section governs postsentence good behavior credits awarded by

the Department of Corrections and Rehabilitation. (People v. Cooper (2002) 27 Cal.4th

38, 40.) The People agree with defendant that the court should have calculated

presentence conduct credits pursuant to Penal Code section 4019 (see People v. Cooper,

at p. 47), which would have resulted in an award of 1,170 days of conduct credit instead

of 780, for a total award of 3,512 days instead of 3,122.4 We too agree and amend the

judgment to award the correct sum of presentence credits.

4 The arithmetic is: 2,342 (actual days in presentence custody) ÷ 4 = 585.5;
585 x 2 = 1,170; and 1,170 + 2,342 = 3,512. (See People v. Culp (2002) 100 Cal.App.4th
1278, 1283 [formula for calculating presentence credits under Pen. Code, § 4019].)

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 And last, defendant argues the abstract of judgment does not accurately reflect the

trial court’s oral pronouncement of a sentence of 25 years to life. The box on the abstract

for a sentence of 25 years to life is correctly checked, but the box for a sentence of “LIFE

WITH THE POSSIBILITY OF PAROLE” is also checked. The People contend the

abstract is technically correct, but nonetheless concede it should be amended to avoid

potential confusion. We conclude the abstract of judgment is both erroneous and

potentially confusing, so we direct the clerk of the superior court to prepare an amended

abstract that does not have the box checked for a sentence of life with the possibility of

parole. (People v. Wilson (2010) 186 Cal.App.4th 789, 823 [When a defendant is

sentenced to 25 years to life, checking the boxes on the abstract of judgment for that

sentence and for a sentence of life with the possibility of parole is “erroneous,”

“unnecessary and could be confusing.”].)

IV.

DISPOSITION

The $350 parole revocation restitution fine imposed on defendant is hereby

stricken. The award of presentence conduct credits to defendant is increased from

780 days to 1,170 days, for a total award of 3,512 days of presentence credit toward his

sentence. The clerk of the superior court is directed to prepare an amended abstract of

judgment and forward it to the Department of Corrections and Rehabilitation. The

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amended abstract of judgment shall reflect that defendant was sentenced to 25 years to

life but shall not reflect a sentence of life with the possibility of parole.

In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
Acting P. J.
We concur:

SLOUGH
J.

RAPHAEL
J.

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