Opinion
I. INTRODUCTION
Bahram Nazeri was contemplating suicide on Tuesday night, August 22, 2006. He was in the company of his two brothers, Yadi and Shawn, at his own home in northern Irvine. One of the brothers decided to call the Irvine Police Department. When officers arrived, Bahram grabbed something from the kitchen and went into the backyard. Bahram told the officers he had a gun. There was a standoff. Bahram surrendered after an hour. He had no gun, but he had cut his wrists and there was blood on his face and hands.
When the police searched the house, they found the bodies of Bahrain’s wife and mother-in-law in the shower of a locked downstairs bathroom. Two nights before, each had been stabbed more than 20 times.
Bahram admitted he had done thе killings. He was subsequently convicted of two counts of first degree murder and sentenced to life imprisonment without possibility of parole.
II. THE EVIDENCE
A. Manner of Killing
1. Bahrain’s Account of the Stabbings
This case is rather remarkable in that defendant Bahram Nazeri took the stand in his own defense and told his own version of the killings of his late wife Nooshin Khaneh and his late mother-in-law, Parvane Ghararyankordestan. We will refer to all three of them by their first names: Bahram, Nooshin and Parvane respectively. (As in family law opinions, no disrespect is intended.) The main point of Bahrain's testimony was that he killed in self-defense: “They came to me with the knife and I defend myself.”
We will begin, then, with Bahram’s own account of the killings, as told on direct examination in his defense:
It was Saturday, August 19, 2006. Bahram and Nooshin were living in their home in Irvine with their two daughters and Nooshin’s mother Parvane. Bahram played with his two daughters in thе swimming pool that afternoon. Later that afternoon or early evening, Bahram told Nooshin he was going out for a run, but she said, “no, don’t go,” because she was going out shopping with her mother. He scrubbed the run and complied.
The two didn’t come back until after 9:00 p.m. that evening, after the children’s bedtime. Nooshin went upstairs to sleep, Parvane downstairs. Bahram and Nooshin then had, in his words, “wild, wild sex.” The couple intended to go to sleep, but soon smelled smoke.
By this time, Parvane had gone to her room. Nooshin said that Parvane was awake and “not sleeping,” and told Bahram she would go and talk to her mother. Nooshin went downstairs, wearing a towel. Bahram said, “Okay. I’m
Nooshin told Parvane, “I talked to Farokh today.” Then, referring to Bahram, she said: “Mommy, don’t worry. Less than two weeks, he will be finished. Less than two weeks.”
Bahram brushed into some bushes. Nooshin saw the movement of the bushes and screamed. Bahram then came into the house. The next thing, according to his testimony, was that he grabbed Nooshin. And as he grabbed her, the towel came off and she grabbed a knife.
Bahram tried to get the knife from Nooshin’s hand. “You want to kill me? You want to kill me?” he exclaimed. As he tried to get the knife from Nooshin, Parvane intervened and began “hitting [him] from behind.”
The next thing Bahram knew, “all over is blood” and he was “between” the two women. The only thing he remembered after that was the thought he needed to “take myself, too.”
Cross-examination yielded this exchange as to how, precisely, Nooshin obtained the knife. (Readers should bear in mind that English is Bahram’s third language, the first two being Farsi and Kurdish):
“Q. So, as you grab the towel and she’s facing away from you, you’re still unaware that she has the knife?
“A. She grabbed it the way she run. The way when she run to the kitchen, she — the knife was on top of the counter. She grabbed the knife. Said, ‘Get away from me. Get away from me.’
“Q. Oh, so you saw her grab the knife?
“A. Yeah, she grabbed it. And that’s why I catch her. She left the—
“Q. Why did you chase her if she had a knife?
“A. To get it from her to say, ‘Why do you want to kill me? Why you planning it?’ ” (Italics added.)
2. The Knife
a. Where?
Where, precisely, was the knife ordinarily kept? Ordinarily, said Bahram, it was located in the bedroom.
How did the knife get to the kitchen, where Bahram said Nooshin would eventually grab it from off the counter as he pursued her, then turn on him?
On cross-examination Bahram said that Nooshin took it downstairs to show her mother early Saturday morning.
When officers came to the house two mornings later, they found the knife in a cabinet underneath the kitchen sink.
b. What and How?
As mentioned, Bahram said the knife was, at least ordinarily, “located” in “my bedroom.” That made sense, the knife was hardly the sort of artifact one would normally keep alongside the dishwashing soap and the cleansers beneath a kitchen sink.
It was, in fact, something of an objet d’art. In his direct testimony, Bahram described the knife as “beautiful designed, so we located in my bedroom, our bedroom.” Then he recounted how Nooshin had said — apparently upon its acquisition at a swap meet — “It’s beautiful” — and exclaimed how she wanted to take it back to Iran.
Bahram’s testimony as found in the reporter’s transcript shows the knife itself to be remarkable. It was a two-bladed knife that could easily be mistaken for a three-bladed knife, as there is an object with a “pointy edge” in the middle. The blades also fold, locking into one of two positions (either straight or “C” shaped).
Sometimes, for purposes of description — remember the jury actually got to viеw the knife (it was admitted into evidence as exhibit 62) — it is actually important for an appellate court to view what the jury saw. Bahram’s
Here is what it looks like, as it rests in the box containing it as an exhibit:
[[Image here]]
For the benefit of readers who may not have access to the picture (or to a picture in color), we offer this description: Think of two griffin figures, facing away from each other, sharing a bronzish-looking body around four to five inches. That body was clearly intended to function as a handle. A small red glass, the size of a large рinhead, is in each eye of each griffin’s head. Each of the two heads is about an inch in size. In the middle of the body there is a carved face with two pink pieces of glass forming the eyes of the face. The bottom of the body (where the stomachs of each griffin might be) is shaped into a sort of weird smile, and from the chin of the face comes a long “pointy” edged object an inch and one-half in length. The pointy-edged protrusion consists of a flat shaft, maybe a quarter-inch wide and half an inch downward, then another half-inch downward grows out into the form of a diamond. The diamond obviously functions to protect one’s knuckles as one holds the knife, and at the same time securе one’s grip. In the center of the diamond is another large pinhead-sized piece of red glass matching the eyes of the two griffins.
The two blades protrude from each griffin’s breast, about equidistant from each griffin’s face and claws. The two blades are about five inches in length, the sharp edges starting about three-fourths of an inch from where the blades emerge from each breast, then forming into a slight curve, scimitar-style, thus ending in a sharp point. The cutting edge of each blade faces downward, in
Given its design, there is really only one way to hold the knife: Put one’s fingers and hand around the body, so that the pointy shaft ending in the diamond is between each of two fingers. To use the knife as any kind of effective weapon, though, one would have to have at least one of blades going straight out of a griffin’s breast, so that one’s hand formed a fist, gripping the body-shaped handle. With such a grip, one could raise one of the blades of the knife so as to use it in an overhead, or underhand, stabbing motion.
We have gone into such a detailed description of the knifе because Bahram testified that Nooshin initially grabbed the knife, then he disarmed her of it. In fact, on cross-examination, Bahram said that he was able to easily grab the knife from Nooshin’s hand. What’s more, he was able to do it without cutting his own hand at all.
He wasn’t able, however, to explain how he accomplished the transfer so readily and without cutting himself — all he did was refer to his original acquisition. To quote the relevant portion of transcript:
“Q. What part of this [(the prosecutor was referring to the knife)] did you grab if there were three blades pointing to you.
“A. The knife. I bought it.
“Q. It didn’t cut your hand at all?
“A. No.”
Bahram then went on to admit that he “immediately” stabbed Nooshin upon removing the knife from her.
c. Nature of the Wounds
The officer who discovered the bodies found two female bodies on top of each other in a bathtub with a shower. Nooshin was found holding human hair in her hand. Garbage bags filled with ice were next to them. A contract
As to Nooshin, she was stabbed numerous times around the head and neck, including the carotid artery, the jugular vein, the back of the neck in the same place as Parvane had been stabbed, plus wounds to her lung, diaphragm and stomach, all fatal. There were at least two “defensive” wounds to her left elbow and hand.
B. Preexisting Motive Evidence
Largely because Bahram took the stand- in his own defense, this case contains an unusual amount of evidence on motive. We emphasize that in recounting this evidence — particularly evidence that gives an unfavorable impression of the victims — we track Bahram’s own testimony, much of which centered on reasons he proffered as to why Nooshin and Parvane wanted to kill him. The evidence may be sorted into four сategories:
First, sex. In the summer of 2006, Nooshin visited Iran. Bahram could not go with her — his identification with the prerevolutionary regime would have subjected him to immediate arrest. He had suspicions of his wife’s fidelity, and his brother Shawn advised him, after her return around August, how to obtain equipment to tap the household telephone. He obtained such equipment from Fry’s and began tapping the phone and taping his wife’s conversations. The taped conversations, of which transcripts in English are part of our record, led Bahram to believe that Nooshin was having an affair with someone in Iran named Farokh. (His name for her was “Kitty Kat.”) Bahram told the jury that one reference in the tapes to a “fun racе” was to an “unbelievable” three hours of sex that Nooshin and Farokh had together.
Second, money. Prior to the summer 2006 Iranian trip, Nooshin pestered Bahram to increase the amount of life insurance on his life. She wanted him to increase the amount from $1 million to $2 million. He decided against the idea while she was out on vacation, but he also acknowledged that he already had half a million dollars of life insurance on her.
Third, fear. One of the tapes that Bahram listened to between Nooshin and her paramour Farokh made a reference to “plots” or “plans” by Nooshin against Bahram. The message from Farokh was: Act normally, don’t let on
Fourth, humiliation. Bahram recounted the poignant story of his meeting Nooshin and Parvane at the airport after their recent trip to Iran. There he was, waiting with two dozen very beautiful roses for both ladies, with toys for the children, and a limousine to take the family home. And the first thing that Nooshin wanted to talk about was — whether he had complied with her request to increase the amount of insurance on his life. He also learned directly, from a taped conversation between Parvane and Nooshin’s sister Nargess, what his mother-in-law thought of him: “You don’t know what kind of scorpion he is.” He was a man “busy with his own misery,” who had “become so miserable and low.” Parvane was also not impressed with Bahram’s recent hair transplant operation; his head was “all stitched up and bumpy under the hair.” And she was apparently laughing in a mocking tone when she said so. 2
C. Pre-August 19 Planning Activity
Bahram’s nephew Dan (son of Bahram’s brother Shawn) testified that, about six days befоre the stabbings he overheard his father and Bahram talking in Kurdish on Shawn’s patio, and in the conversation Bahram said (in Dan’s words) “he’s going to kill Nooshin.”
Bahram himself admitted on cross-examination that he had his own plan, “not to kill her” but to divorce her and leave her with “no money.” 3
A. Standard of Review
We pause for a moment to note how the substantial evidence standard of review plays out in a case such as this. Our task is not to determine, for example, whether the weight of the evidence might favor second degree murder over first degree murder for either or both victims. Our task is to determine whether there was sufficient evidence by which a rational jury could decide that both victims were the objects of first degree murder.
The statutоry definition of all murder is “the unlawful killing of a human being, or a fetus, with malice aforethought.” (Pen. Code, § 187, subd. (a).) First degree murder is any “kind of willful, deliberate, and premeditated killing.” (Pen. Code, § 189.) Second degree murder is any kind of murder that doesn’t fall within the definition of first degree murder. 4 That is, the key words are “willful, deliberate and premeditated,” which are generally treated under the rubric of “premeditation and deliberation.” If a rational jury could have come to the conclusion that both these killings were willful, deliberate and premeditated, then we must affirm even if, had we been members of the jury, we would not have so concluded.
B. Three Common Categories Used for Appellate Review
In
People v. Anderson
(1968)
In our Supreme Court’s most recent iteration on the topic, the court had occasion to point out that the three categories provide
“one framework
for reviewing the sufficiency of the evidence supporting findings of premeditation and deliberation.”
(People v. Solomon
(2010)
The high court has further cautioned that the
Anderson
categories are only a set of “guidelines” for analysis.
(People
v.
Sanchez
(1995)
Rather, as stated in
People
v.
Prince
(2007)
And in fact, in several recent cases, the Supreme Court has described the various
Anderson
categories in the disjunctive, inserting an “or” in the series, as if to emphasize that a first degree murder conviction may be upheld with evidence from any of the three categories: “First degree willful, deliberate, and premeditated murder involves a cold, calculated judgment, including one arrived at quickly . . . and is evidenced by planning activity, a motive to kill,
or
an exacting manner of death.”
(People
v.
Carasi
(2008)
We therefore may confidently articulate this synthesis of our high court’s premeditation and deliberation jurisprudence vis-a-vis the Anderson categories: Those categories do not constitute some simplistic set of three elements, all of which must be present before a reviewing court may find sufficient evidence to uphold a first degree murder conviction.
Concomitantly, it is not surрrising that the standard jury instruction defining deliberate and premeditated murder, is not framed in terms of the standard Anderson categories, but in terms of extent of reflection on the decision to kill. 7 (And, for what it is worth, the jury instructions in this case as orally given to the jury also did not mention any of the three Anderson categories, but focused on extent of reflection. 8 )
Indeed, one of the Supreme Court’s most recent discussions of premeditation and deliberation emphasizes the extent of reflection on the decision to kill. (See Solomon, supra, 49 Cal.4th at pp. 812-813 [“Defendant overlooks a core principle that has guided appellate courts in assessing the sufficiency of the evidence of premeditation and deliberation for over 60 years: ‘The true test is not the duration of time as much as it is the extent of the reflection.’ ”].)
The
speed
by which such reflection takеs place may not be as short as the flicker or twinkling of an eye (see
Solomon, supra,
In ascertaining the sufficiency of reflection, we must of course be guided by what our high court has concluded in similar circumstances. In
People v. Perez
(1992)
D. Application
While the Anderson categories do not constitute a simple set of elements to be met before a first degree murder conviction may be upheld, it is remarkable how strong two of those categories, pre-event planning activity and motive, are in this case.
1. Planning activity
Indeed, the single most important item of evidence for purposes of this appeal is Bahrain’s testimony that the “beautiful” ornamental knife that turned out to be the murder weapon was normally kept in the upstairs bedroom. The jury, of course, did not have to believe Bahrain’s story that Nooshin had taken the knife from where it was normally kept in the upstairs bedroom and brought it down to the kitchen Saturday morning, August 19. Given the nature of the knife — an ornament, not a kitchen utensil — and the inference that it had not been so recently acquired as to compel Nooshin to bring it down to show off to her mother (there was no evidence of any trips to a swap meet that morning) — the jury could have reasonably concluded that the knife remained in the upstairs bedroom when Nooshin smelled smoke and got up ostensibly to check on her mother Parvane.
On top of that, the jury had a ready basis to disbelieve Bahram’s assertion that Nooshin initially had the knife. According to his testimony, he was able
The point is, the knife was in Bahram’s hands all along.
The jury could also have reasonably inferred a few things about Bahram’s state of mind from the events of the day. Instead of going for a run as he had planned, Bahram stayed behind and had pizza with the kids while Nooshin and her mother went out. Obviously, at least a few hours passed, since Nooshin and her mother did not arrive back until after 9:00 p.m. — after the girls’ bedtime.
In those hours, waiting for Nooshin and Parvane to return, Bahram had time. Time to ponder the perceived unfaithfulness of his wife and brood on her supposed plots against him. Time to reflect on the ingratitude of a mother-in-law for whom he had done “everything” while she had repaid him with scornful mockery. Time to wonder if he dared follow through on what he had already told his brother Shawn he planned to do.
The jury could therefore logically infer that at some point, after pondering the absence of his wife and mother-in-law all evening, Bahram forced the moment to its crisis and took the knife downstairs.
There were still three opportunities to turn back. He might have turned back as he descended the stairs. Or later, as he crept around the outside of the house to eavesdrop on his wife’s conversation with his mother-in-law. Or even after Nooshin heard the bushes move and screamed. Nothing required Bahram to open the sliding door and come into the house where he would soon stab two people. The jury could thus infer this: Only a man already resolute on the use of deadly force would have, upon being discovered on the outside of his home, proceeded to enter it through the sliding glass door and then pursue his wife with a knife still in his hand.
He might, of course, have descended the stairs the first time merely to satisfy his curiosity as to the discussion between his mother-in-law and his
2. Preexisting Motive
As noted above, preexisting motive has clearly been an accepted category of evidence for reviewing court analysis of premeditation and deliberation since
Anderson,
10
and has been reiterated, by the Supreme Court, as one of the “three types оf evidence commonly shown in cases of premeditated murder” as recently as less than two months ago.
(Solomon, supra,
What is remarkable about the case before us is the abundance of evidence on preexisting motive, that is, evidence quite independent of any reaction that the comments by Nooshin about talking to Farokh that day, or reassuring her mother of Bahram’s soon being “finished,” would engender. Indeed, if this case were a mystery novel, a reader might guess that someone else would have “done it” because the evidence of Bahram’s preexisting motives was so strong that he had to be a red herring.
We have already recounted the abundance of motives that Bahram had before the evening of August 19, particularly as regarding Nooshin. Sexual jealousy: Bahram thought she was having an affair with an Iranian named Farokh. Money: He worried she was plotting his death for the life insurance money and to be free to be with her Iranian lover. Fear: He worried about being given drugs that simulate heart attacks. Humiliation: As Bahram would later look at events, Nooshin, fresh from her stay with her lover in Iran, was more interested in an increase in life insurance than greeting her husband.
Let us at this point, however, zero in on Parvane. By Bahram’s own testimony
she
was in on the perceived plot to kill him, and certainly in his
But not only that. As Bahram related events, Parvane came to the aid of her daughter, hitting him from behind. She was thus a percipient witness to the stabbings of Nooshin, and had to be eliminated.
Our Supreme Court has recognized that the elimination of a percipient witness is motivation enough in the premeditation and deliberation context. (See
Sanchez, supra,
3. Manner of Killing
Manner of killing is the least strong of the Anderson categories as the case comes to us. The manner of killing here — stabbing two victims more than two times each, including around the face, the neck and lungs — is, at least in a vacuum, associated with someone losing his mind and going berserk, which is not a state of mind we associate with premeditation or deliberation. We note an irony here: The more gentеel the form of dispatch, the more readily premeditation may be inferred. Vicious brutal knifings, particularly when the victim is awake and fighting back, tend to fall on the opposite side of the spectrum from, say, the administration of arsenic in a guest’s tea. That said, our Supreme Court has, in Perez, upheld a first degree murder conviction in a vicious knife attack no less gruesome than the ones here.
To be sure, Bahram did not have the element of surprise, as shown by the “defensive” wounds sustained by both victims. Even so, the numerous blows to the neck and vital organs of both victims, including a blow that penetrated Parvane’s eye, supports the reasonable inference, similar to
Lewis,
that the blows were intended to kill rathеr than merely wound. (See
Lewis, supra,
The judgment of conviction of two counts of first degree murder is affirmed.
Moore, J., and Fybel, J., concurred.
A petition for a rehearing was denied September 15, 2010, and appellant’s petition for review by the Supreme Court was denied December 1, 2010, SI86807.
Notes
Exact quote translated from the Farsi: “Let it be proven to him you are living a normal life. God forbid, you don’t have any plans or plots for him.”
“Q. You were glad to have your mother-in-law laughing about your hair transplants?
“A. Well, that’s what you do everything for somebody and they will laugh at you.”
Apparently the idea was to liquidate all the family wealth and hide it; either that, or Bahram didn’t know anything of California divorce law. Here’s his testimony verbatim: “I had a plan. Not to kill her. I had a plan to finally broke her and then leave there. That’s why we decided to refinance the home, and take all the 300,000 dollars and whatever car and truck we have, sell and take everything. Financially broke her. And then divorce her. And get my kids.”
Here is the complete text of Penal Code section 189:
“All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree.
“As used in this section, ‘destructive device’ means any destructive device as defined in Section 12301, and ‘explosive’ means any explosive as defined in Section 12000 of the Health and Safety Code.
“As used in this section, ‘weapon of mass destruction’ means any item defined in Section 11417.
“To prove the killing was ‘deliberate and рremeditated,’ it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act.”
The basic passage is: “Drawing on these three categories of evidence,
Anderson
provided one framework for reviewing the sufficiency of the evidence supporting findings of premeditation and deliberation. In so doing, Anderson’s goal ‘was to aid reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse.’ ”
(Solomon, supra,
Legal researchers take note: A red flag or red pennant by a case doеs
not
mean “don’t bother to read.”
People v. Doolin
(2009)
After defining “murder,” “willful,” “deliberate,” and “premeditated,” CALJIC No. 8.20 elaborates on premeditation and deliberation in its final four paragraphs. We set those forth now, to show just how much the instruction focuses on the idea of reflection:
“If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree.
“The law does not undertake 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 to kill which is truly deliberate and premеditated. The time will vary with different individuals and under varying circumstances.
“The true test is not the duration of time, but rather the extent of the reflection. A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it includes an intent to kill, is not deliberation and premeditation as will fix an unlawful killing as murder of the first degree.
“To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, [he] [she] decides to and does kill.” (Ibid., italics added.)
To quote the core of the instruction: “If you decide that the defendant has committed murdеr, you must decide whether it is murder of the first or second degree. The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. [][] The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice, and knowing the consequences, decided to kill. . . .”
There is no assertion in this appeal that the jury was in any way instructed incorrectly.
The case came from this court. The high court reversed a majority judgment that held there was insufficient evidence of premeditation and deliberation.
As mentioned above,
Anderson
derived its three categories from
People v. Thomas, supra,