NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

McKINSTER, J.

I

INTRODUCTION

On March 13, 2008, an information charged defendant and appellant Johnny Joe Magallanez with: (1) willful, deliberate, premeditated attempted murder of a peace officer under Penal Code1 sections 664 and 187, subdivision (a) (count 1); (2) assault with a deadly weapon upon a peace officer under section 245, subdivision (c) (count 2); and (3) resisting an executive officer under section 69 (count 3). As to counts 1 and 3, the information also alleged that defendant personally used a deadly weapon, a knife, within the meaning of section 12022, subdivision (b)(1), and that defendant personally inflicted great bodily injury, within the meaning of section 12022.7, subdivision (a). The information further alleged that defendant had a prison prior conviction, within the meaning of section 667.5, subdivision (b). The use of a knife allegation was subsequently stricken as to count 3 by the People.

On May 28, 2009, a jury found defendant guilty of counts 1 and 3. The jury also found true all allegations, including the allegation that the attempted murder was willful, deliberate and premeditated. Defendant admitted the prison prior allegation.

On October 6, 2009, defendant was sentenced to 15 years to life on count 1; plus a consecutive three-year term for the great bodily injury enhancement, and a consecutive one-year term for the personal use of a deadly weapon enhancement. Moreover, a consecutive one-year term was imposed for the prison prior, for a total term of 20 years to life. The trial court imposed concurrent sentences on count 3 and the related enhancement.

On the same date as his sentencing, defendant filed a timely notice of appeal. On appeal, defendant contends that (1) there is insufficient evidence to support his conviction for attempted murder; and (2) his conviction for count 3 should be stayed under section 654. For the reasons set forth below, we shall modify the judgment to stay defendant's sentence on count 3. In all other respects, we shall affirm the judgment.

II

FACTUAL AND PROCEDURAL BACKGROUND

On December 7, 2007, Brandon Gatewood was a loss prevention officer at Mervyn's in Upland, California. Just before 9:00 p.m., Gatewood saw defendant on the store's closed circuit television. Defendant was in the men's clothing department picking out pants without looking at the sizes or prices, and placing them in a shopping cart. Defendant met up with a woman. Gatewood then went out to the floor to continue to observe defendant and the woman. The woman left the store, got into a van, backed the van into a parking space, and left the door open with the engine running. Gatewood was concerned that defendant and the woman were engaging in a shoplifting technique where the thieves put merchandise near a door, run out of the store into a waiting car, and drive away before the thieves can be apprehended.

At the same time, Upland Police Officer Gabriel Garcia was in uniform at the store investigating a separate theft incident. Officer Garcia was informed that a potential theft was taking place. The officer went to the sales floor to investigate. Officer Garcia saw defendant with a woman. When defendant walked away from the woman, the officer contacted defendant. Officer Garcia asked defendant to walk outside; defendant started to look around the area. Officer Garcia took defendant's left arm and escorted him outside. Officer Garcia asked defendant if he was on probation or parole. Defendant stated he was not on either probation or parole. When the officer asked defendant whether he had any weapons, defendant quickly turned toward the officer and struck him on the elbow with his right hand. The officer tried to maintain his hold on defendant's arm but defendant attacked him, "throwing his arm out toward [the officer's] face and at [his] neck." Officer Garcia leaned back as defendant lunged at him and tried to avoid being struck by defendant. Defendant swung at the officer about four times.

During the struggle, defendant was not trying to back away from the officer. Instead, defendant was trying to attack the officer, "obviously" going after the officer's head and neck. At the time of the struggle, the officer was not aware that defendant was armed. A shiny object, however, was in defendant's hand when he swung at Officer Garcia. Defendant pulled away from the officer and yelled to the woman cohort to start the car. Defendant then tripped and fell.

Officer Garcia jumped on top of defendant and tried to hold him on the ground. Defendant continued to attempt getting up. Officer Garcia hit defendant in the head several times to get him to stop resisting. When Officer Wyman arrived, he ordered defendant to stop resisting. Other officers arrived and helped take defendant into custody; defendant continued to resist. The officers got defendant up and handcuffed him. It was at this time that Officer Garcia felt blood dripping down his arm and realized that his elbow was bleeding.2 Officer Wyman stated that he saw defendant with a knife in his hand which defendant tossed to the side during the struggle.

Around the time Officer Garcia noticed his wound, the other officers found a knife about two feet from where defendant was taken into custody. The police jacket that Officer Garcia had been wearing had cuts on the elbow and the shoulder. Defendant's right hand also had a cut that was bleeding. Blood was on the handle and blade of the knife.

Upland Police Officer Antonio Macias responded to the call of a theft in progress. When he arrived at the scene, he ran from his car and saw defendant struggling with three officers. Officer Macias noticed a van backed into a parking space with a subject in the driver's seat. The officer contacted the woman in the van and asked her to step out. She complied and stated, "[W]e didn't do anything." The woman in the van was identified as Tina Magallanez.

III

ANALYSIS

A. The Jury's Verdict Is Supported by Substantial Evidence

Defendant claims that there is insufficient evidence to support the finding that the attempted murder was deliberate and premeditated.

Our review of any claim of insufficiency of the evidence is limited. "`"When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence—i.e., evidence that is credible and of solid value—from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt."'" (People v. Hill (1998) 17 Cal.4th 800, 848-849.) We must presume in support of the judgment the existence of every fact the trier of fact could have reasonably deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) The same standard of review applies when a conviction rests primarily on circumstantial evidence. (People v. Perez (1992) 2 Cal.4th 1117, 1124 (Perez).)

"`If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.]' [Citation.]" (People v. Thomas (1992) 2 Cal.4th 489, 514.) Reversal is warranted only where it clearly appears that "upon no hypothesis whatever is there sufficient substantial evidence" to support the conviction. (People v. Redmond (1969) 71 Cal.2d 745, 755.)

Given this court's limited role on appeal, defendant bears an enormous burden in claiming there was insufficient evidence to sustain his conviction for premeditated attempted murder. If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (Jackson v. Virginia (1979) 443 U.S. 307, 319, 326; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) In determining whether substantial evidence exists, "we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses." (People v. Cortes (1999) 71 Cal.App.4th 62, 71.) "Although it is the duty of the [trier of fact] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [trier of fact], not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. `"If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment."' [Citations.]" (People v. Bean (1988) 46 Cal.3d 919, 932-933.)

"Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Lee (2003) 31 Cal.4th 613, 623.) "Intent to unlawfully kill and express malice are, in essence, `one and the same.' [Citation.] . . . Express malice requires a showing that the assailant `"`either desire[s] the result [i.e., death] or know[s], to a substantial certainty, that the result will occur.' [Citation.]"' [Citations.]" (People v. Smith (2005) 37 Cal.4th 733, 739.)

An unlawful "willful, deliberate, and premeditated [attempted] killing" is attempted murder in the first degree. (§ 189.) "`Deliberation' refers to careful weighing of considerations in forming a course of action; `premeditation' means thought over in advance. [Citations.]" (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)

In determining whether evidence is sufficient to support a finding that a killing or attempted killing was willful, deliberate, and premeditated, reviewing courts may consider evidence of prior planning, motive, and whether the manner of killing shows a preconceived design to take the victim's life. (People v. Anderson (1968) 70 Cal.2d 15, 26-27.) Such evidence need not be present in some special combination or be accorded a particular weight, nor is the list exhaustive. (People v. Pride (1992) 3 Cal.4th 195, 247; Perez, supra, 2 Cal.4th at p. 1125; People v. Garcia (2000) 78 Cal.App.4th 1422, 1427.) Rather, they serve as an aid to assess whether the killing or attempted killing was the result of preexisting reflection. (Perez, at p. 1125.)

Generally, it must be shown that the killing or attempted killing resulted from a preexisting reflection, rather than an unconsidered and rash impulse. (People v. Hughes (2002) 27 Cal.4th 287, 342.) But "`[t]he process of premeditation and deliberation does not require any extended period of time. "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . ." [Citations.]' [Citation.]" (People v. Koontz, supra, 27 Cal.4th at p. 1080.)

In this case, there was substantial evidence to support the jury's finding that the attempted murder was deliberate and premeditated. The evidence showed that defendant looked around in the store when first contacted by Officer Garcia. Defendant then waited until the two of them went outside the doors to swing the knife at the officer's head and neck. The motive for the attempted murder was also supported by substantial evidence. Here, defendant wanted to break away from the officer's grip and escape to avoid the consequences of the crime he was in the midst of committing with his female cohort. As the prosecutor argued, defendant made a decision that necessarily involved a decision to kill the officer in order to escape from his custody. Moreover, it can be reasonably deduced that defendant had the closed knife in his pocket and had to manipulate the knife in his pocket to open it, prior to bringing it out to slash the officer's neck or head. During this time, defendant chose to use his knife to do what it took to escape, or even kill the officer. Furthermore, the manner of the attempted murder showed premeditation and deliberation. Gatewood testified that defendant had the knife in his hand when he swung at the officer. Defendant initially cut the officer's arm when he swiped at the officer with the knife. Defendant then lunged at the officer in a deliberate attempt to slice the officer's head or neck, again cutting the officer's jacket. A videotape of this incident clearly shows defendant's vicious acts. Defendant's acts were not those of a person who was simply trying to get away from a police officer. Instead, the acts were those of a person who had decided to use a knife to inflict deadly wounds on the officer's head and neck.

Notwithstanding this evidence, defendant argues that the evidence—taking the knife out of his pocket and slashing the officer with the knife—only supports a conviction for assault with a deadly weapon and shows that defendant was simply trying to escape, not kill the officer. Although defendant would characterize the evidence in favor of his argument, under the substantial evidence standard of review, we must view the evidence in the light most favorable to the People and presume every fact which the trier of fact could reasonably have deduced from the evidence in favor of the judgment. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Reversal for insufficiency of the evidence is unwarranted "unless it appears `that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin (1998) 18 Cal.4th 297, 331.) Here, as provided above, the jury could have reasonably deduced deliberation and premedication from the evidence.

Therefore, we find that defendant's conviction for attempted murder is supported by substantial evidence.

B. The Concurrent Sentence on Resisting an Executive Officer Conviction Should Be Stayed Under Section 654

Defendant contends that the trial court erred in imposing a concurrent sentence on his conviction for resisting an executive officer, instead of staying the sentence, under section 654. The People agree.

In this case, the jury found defendant guilty of resisting an executive officer (count 3), in violation of section 69. The jury also found true that in the commission of the offense, defendant personally inflicted great bodily injury upon the victim, Officer Garcia. At sentencing, the trial court imposed the aggravated term of three years on count 3 and a consecutive one-year term for the infliction of great bodily injury enhancement. The court ordered that the four-year term on count 3 be served concurrent to the 20 years-to-life term on the attempted murder conviction.

"`Section 654 precludes multiple punishment for a single act or indivisible course of conduct punishable under more than one criminal statute. Whether a course of conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the "intent and objective" of the actor. [Citation.] If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not more than one. [Citation.] If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citation.]' [Citation.]" (People v. Hairston (2009) 174 Cal.App.4th 231, 240.)

Here, Officer Garcia suffered only one significant injury: the cut on his arm caused by defendant slashing the officer with the knife. The jury found defendant's use of the knife was the conduct that constituted the resisting an executive officer conviction. Because the use of the knife was also alleged and found to be the conduct constituting the attempted murder conviction, the sentence on the resisting an officer conviction should have been stayed under section 654.

Therefore, we agree with the parties and find that the trial court erred in imposing a concurrent sentence on count 3.

IV

DISPOSITION

The judgment is modified to stay defendant's sentence on count 3 pursuant to section 654. The trial court is directed to amend the abstract of judgment and its minute order so as to reflect this modification and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

We concur:

Hollenhorst, Acting P.J.

King, J.