Filed 8/23/24 P. v. Salgado CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 certified for publication or 

ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for 

purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

GUSTAVO ROJAS SALGADO,

Defendant and Appellant.

 D081441

 (Super. Ct. No. SCE403413)

APPEAL from a judgment of the Superior Court of San Diego County, 

Patricia K. Cookson, Judge. Reversed in part, affirmed as modified, and 

remanded for resentencing with directions.

Mary Woodward Wells, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. 

Swenson and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff 

and Respondent. 

A jury found Gustavo Rojas Salgado guilty of, relevant here, first 

degree murder of Victor Garcia (Pen. Code, § 187, subd. (a)) and arson (§ 451, 
2

subd. (d)), and found true the allegation that Salgado personally used a 

deadly weapon in the commission of the murder (§ 12022, subd. (b)(1)). 

Following a bifurcated bench trial, the court found true three aggravating 

circumstances. The court sentenced Salgado to an indeterminate term of 

25 years to life for murder, plus one year for the personal use of a deadly 

weapon enhancement, and a consecutive three-year upper term for arson. 

On appeal, Salgado challenges the sufficiency of evidence of 

premeditation and deliberation required for first degree murder. He also 

argues the jury instructions inadequately defined premeditation. We agree 

there is insufficient evidence to support a conviction of murder in the first 

degree and reduce the conviction to second degree murder. We thus need not 

address the jury instruction. 

Salgado also argues the court abused its discretion in selecting the 

upper term for arson. As the People concede, the court improperly considered 

a fourth factor in aggravation but we need not address whether the error was 

harmless, as we remand the matter for a full resentencing. 

We reverse in part, affirm as modified, and remand for resentencing

with directions. 

I.

Salgado contends the jury’s finding of premeditation and deliberation is 

not supported by substantial evidence, requiring us to reduce his murder 

conviction to second degree. Having reviewed the entire record with the 

following principles in mind, we agree.1

We review claims of insufficient evidence under the substantial 

evidence standard. (People v. Johnson (1980) 26 Cal.3d 557, 578.) In a 

1 We refer only to the facts that are relevant and necessary to resolve the 

issues on appeal.
3

criminal case, we review the entire record in the light most favorable to the 

judgment for substantial evidence that would allow any reasonable trier of 

fact to find the defendant guilty beyond a reasonable doubt. (People v. 

Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).) To be “‘substantial,’” the 

“evidence must be of ponderable legal significance” (Estate of Teed (1952) 

112 Cal.App.2d 638, 644), “reasonable, credible, and of solid value” (Zamudio, 

at p. 357). Such evidence can include not only circumstantial evidence, but 

also all reasonable inferences that can be drawn from such evidence. (People 

v. Soriano (2021) 65 Cal.App.5th 278, 286.) “A reasonable inference, 

however, ‘may not be based on suspicion alone, or on imagination, 

speculation, supposition, surmise, conjecture, or guess work[.]’” (People v. 

Morris (1988) 46 Cal.3d 1, 21 (Morris).) “‘A finding of fact must be an 

inference drawn from evidence rather than . . . a mere speculation as to 

probabilities without evidence.’” (Ibid.) 

“Murder is the unlawful killing of a human being . . . with malice 

aforethought.” (Pen. Code, § 187, subd. (a).) Killing that is “willful, 

deliberate, and premeditated” is murder in the first degree. (§ 189, subd. (a).) 

Willfulness is undisputed in this case. Premeditation “encompasses the idea 

that a defendant thought about or considered the act beforehand.” (People v. 

Pearson (2013) 56 Cal.4th 393, 443.) Deliberation refers to the careful 

weighing of considerations in forming a course of action. (Ibid.) Thus, “[a]n 

intentional killing is premeditated and deliberate if it occurred as the result 

of preexisting thought and reflection rather than unconsidered or rash 

impulse.” (People v. Stitely (2005) 35 Cal.4th 514, 543.) However, “[t]he 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 
4

judgment may be arrived at quickly.” (People v. Thomas (1945) 25 Cal.2d 

880, 900.)

In assessing the sufficiency of the evidence of premeditation and 

deliberation, a reviewing court typically analyzes three categories of 

evidence: (1) “‘planning’ activity” prior to the killing, showing the defendant 

engaged in acts intended to result in the death; (2) “‘motive,’” inferred from 

the defendant and victim’s prior relationship; and (3) “the nature of the 

killing,” including whether the manner of killing was “so particular and 

exacting that the defendant must have intentionally killed according to a 

‘preconceived design.’” (People v. Anderson (1968) 70 Cal.2d 15, 26-27.) 

Evidence of premeditation and deliberation is likely sufficient if it includes 

(1) some “evidence of all three types,” (2) “extremely strong evidence” of 

planning, or (3) evidence of motive with evidence of either planning or 

manner of killing. (Id. at p. 27.) These “guidelines are descriptive,” are 

“neither normative nor exhaustive,” and “need not [be] accord[ed] . . . any 

particular weight.” (People v. Halvorsen (2007) 42 Cal.4th 379, 420.) 

Salgado argues there is no evidence of planning activity or motive, and 

the brutal manner of killing evidenced “nothing more than the commission of 

a spontaneous act.” The People concede there is “little evidence” of planning

yet identify no such evidence, and our review of the record reveals none. The 

People argue, however, that evidence of motive and the manner of killing

supports the jury’s finding of premeditation and deliberation. 

Regarding motive, the prosecutor below admitted to the jury: “the 

hardest part of this case is the why . . . why did [Salgado] do that [kill 

Garcia]? . . . We don’t know.” The People acknowledge on appeal the 

prosecutor “did not seek to establish” that Salgado had a “specific motive” for 

killing Garcia but argue the jury could have inferred two possible motives. 
5

First, Garcia’s mother testified she gave Garcia cash every day and he 

had substantial cash the night of the murder. Detectives did not find any 

wallet, identification, credit card, cell phone, or keys with Garcia’s body. The 

People contend that because Salgado lived with Garcia for one to two months, 

Salgado knew he carried cash on him. Although the People do not state it, 

the inference would be that Salgado was motivated to murder Garcia to steal 

his money. But without any evidence that Salgado may have taken Garcia’s 

money or that he was even in need of money, we are asked to speculate—and 

speculation is not substantial evidence. (Morris, 46 Cal.3d at p. 21.)

The People’s second theory of motive is also speculative. Based on 

evidence that Garcia had asked Salgado to move out of his house, the People 

urge an inference that Salgado had “hard feelings” toward Garcia. To the 

contrary, Salgado’s brother, who helped him move out, told a detective there 

was no argument about the move. There is no evidence to infer otherwise. 

We conclude there is no substantial evidence of motive. 

The People contend the strongest evidence of premeditation and 

deliberation is the manner of killing. This category looks to “facts about the 

nature of the killing from which the jury could infer that the manner of 

killing was so particular and exacting that the defendant must have 

intentionally killed according to a ‘preconceived design’ to take [the] victim’s 

life in a particular way for a ‘reason’ which the jury can reasonably infer” 

from facts regarding planning activity or motive. (Anderson, 70 Cal.2d at 

p. 27.) The People argue Salgado stabbed Garcia over 100 times, focusing on 

vital areas of Garcia’s head, neck, and torso, and urge us to follow cases 

where injuries concentrated in areas vulnerable to fatal harm supported a 

finding of premeditation and deliberation. In each of the cases on which the 

People and the dissent rely, however, there was also substantial evidence of 
6

motive and planning activity. (See People v. Lewis (2009) 46 Cal.4th 1255, 

1292-1293; People v. Hovarter (2008) 44 Cal.4th 983, 1019; People v. Elliot

(2005) 37 Cal.4th 453, 471; People v. San Nicolas (2004) 34 Cal.4th 614, 658-

659, People v. Pride (1992) 3 Cal.4th 195, 247-248; and People v. Perez (1992)

2 Cal.4th 1117, 1126-1127.) 

As in Anderson, “the condition of the victim’s body in the instant case, 

when considered in light of the absence of any evidence of the defendant’s 

conduct immediately prior to the killing or any ‘unusual’ relationship with 

the victim, points to a ‘random’ attack which was explosive rather than 

calculated.” (Anderson, 70 Cal.2d at p. 30.) The People argue the placement 

and severity of the stab wounds in this case is distinguishable from those in 

Anderson, where the victim sustained 60 wounds, both severe and superficial, 

over her entire body. (Id. at p. 22.) However, there was arguably stronger 

evidence of particular and exacting acts there, including a cut extending from 

the rectum through the vagina and the partial cutting off of the victim’s 

tongue. (Ibid.) Nonetheless, Anderson concluded the only inference the 

evidence reasonably supported was that the killing resulted from a “‘random,’ 

violent, indiscriminate attack rather than from deliberately placed wounds 

inflicted according to a preconceived design.” (Id. at p. 32.) Here, too, the 

evidence “points only to a violent, brutal attack.” (Id. at p. 33.) This is not a 

case where the manner of killing is so compelling, such as with an executionstyle murder, to support a finding of premeditation and deliberation in the 

absence of evidence of planning and/or motive. (See e.g., People v. 

Hawkins (1995) 10 Cal.4th 920, 957.)

Finally, while evidence that Salgado tried to clean up the scene of the 

crime could bear on his state of mind after the killing, it alone does not 

support a finding of premeditation and deliberation. “Evasive conduct shows 
7

fear: it cannot support the double inference that defendant planned to hide 

his crime at the time he committed it.” (Anderson, 70 Cal.2d at p. 32.) We 

must focus on the difference between a first degree premeditated murder, 

which the People argue for, and a second degree murder, which Salgado

concedes. And the People never attempt to suggest how the manner of 

cleaning up the scene and disposing of incriminating evidence would be 

different if this were only an intentional murder that was not premeditated. 

Moreover, in the case the People cite to argue otherwise, the post-killing 

evidence did not involve evasive conduct, there was other manner of killing 

evidence, and the court acknowledged the defendant’s post-killing conduct 

alone would not have been sufficient to establish premeditation and 

deliberation. (See Perez, 2 Cal.4th at p. 1128.)

We conclude there is insufficient evidence on this record of 

premeditation and deliberation to support a conviction of murder in the first 

degree and that conviction must be reduced to murder in the second degree. 

We thus need not reach Salgado’s argument that the jury instruction 

provided an insufficient definition of premeditation. The matter is remanded 

for a full resentencing. (People v. Buycks (2018) 5 Cal.5th 857, 893.) 

II.

As the issue may resurface at resentencing, we briefly address 

Salgado’s argument that the trial court abused its discretion by imposing the 

upper term of imprisonment for arson. The People concede the court 

improperly relied on an aggravating factor that was not found true by a trier 

of fact or admitted by Salgado. We agree. 

The trial court may impose an upper term only when justified by 

circumstances in aggravation and “the facts underlying those circumstances 
8

have been stipulated to by the defendant” or “found true beyond a reasonable 

doubt” at a jury or bench trial. (§ 1170, subd. (b)(2).)

Here, after a bench trial on three aggravating factors—that Salgado 

(1) had numerous serious convictions, (2) was on felony probation during the 

offense, and (3) had unsatisfactory performance while on probation—the 

court found them all true beyond a reasonable doubt. At sentencing, 

however, the court invoked a fourth aggravating factor that Salgado engaged 

in violent conduct, determined “the circumstances in aggravation outweigh 

those in mitigation,” and selected the upper term for arson. 

As asserted by Salgado and conceded by the People, the court erred in 

considering the fourth aggravating circumstance. Because we remand for a 

full resentencing, we need not address whether the error was harmless but

caution the court to comply with section 1170 on remand. 

III.

We reverse in part and reduce the conviction for first degree murder 

under Penal Code section 187, subdivision (a), to second degree murder. As 

modified, we affirm the judgment of conviction. We remand for a full 

resentencing consistent with this opinion. Upon resentencing, the court is 

directed to prepare and forward an amended abstract of judgment to the 

Department of Corrections and Rehabilitation.

CASTILLO, J.

I CONCUR:

DATO, Acting P. J.
RUBIN, J., Dissenting.

I respectfully dissent. The issue in this case is whether any rational 

jury could find Salgado committed a premeditated and deliberate murder 

when he killed Victor Garcia. This attack included over one hundred knife 

wounds inflicted by Salgado on Garcia primarily to Garcia’s torso and head. I 

would find that viewing the judgment in the “light most favorable to the 

prosecution and presum[ing] in support of the judgment the existence of 

every fact the trier could reasonably deduce from the evidence to determine 

whether the record discloses substantial evidence” (People v. Southard (2007) 

152 Cal.App.4th 1079, 1085), the jury could find the evidence before it 

supported premeditation and deliberation. (See People v. Hovarter (2008) 

44 Cal.4th 983, 1015 (Hovarter) [“ ‘ “An appellate court must accept logical 

inferences that the jury might have drawn from the evidence even if the court 

would have concluded otherwise” ’ ”].)

A. Analysis

Relying primarily on People v. Anderson (1968) 70 Cal.2d 15, Salgado 

argues inadequate evidence supports a first degree murder conviction. But in 

the many years since Anderson, our Supreme Court, has placed in context the 

Anderson ruling, emphasizing “ ‘that its guidelines are descriptive and 

neither normative nor exhaustive, and that reviewing courts need not accord 

them any particular weight.’ ” (People v. Rivera (2019) 7 Cal.5th 306, 324.) 

Indeed, “[t]he Anderson guidelines were formulated as a synthesis of prior 

case law, and are not a definitive statement of the prerequisites for proving 

premeditation and deliberation in every case.” (People v. Hawkins (1995) 

10 Cal.4th 920, 957, overruled on another ground in People v. Blakeley

23 Cal.4th 82.) In fact, “[t]he Anderson factors, while helpful for purposes of 
2

review, are not a sine qua non to finding first degree premeditated murder, 

nor are they exclusive.” (People v. Perez (1992) 2 Cal.4th 1117, 1125, 

italics added (Perez).) Importantly, the Anderson factors “are not elements of 

premeditation and deliberation.” (People v. Shamblin (2015) 236 Cal.App.4th 

1, 10.) 

Applying these rules to the evidence here supports the jury’s finding of 

a premeditated and deliberate murder. The proof on which I focus is broadly 

of two kinds. First, there is a crime scene containing a body with over one 

hundred assaultive wounds, including stab wounds of various severity and 

many incised wounds. Second, there are post-crime actions including cleanup activities and false statements by Salgado to the police. I start with 

Garcia’s body. 

1. Victor Garcia’s Body

The medical examiner’s testimony about the victim’s body reveals 

Garcia suffered “multiple sharp force injuries, incised wounds or cuts, and 

stab wounds of the head, neck, torso and extremities, and some blunt force 

injuries, abrasions and contusions on his neck, torso and left leg.” The fact 

that there are “blunt force injuries,” as well as “sharp force injuries” and 

“abrasions,” reflects a change in weapons or tactics during the murder. A 

reasonable jury could conclude, therefore, that this was more than a rash, 

impulsive attack, but reflected a premeditated, deliberate, and willful effort 

to kill Garcia. (See Perez, supra, 2 Cal.4th at p. 1127 [getting another 

weapon after the first one broke during murder supports finding of 

premeditation and deliberation].) That’s especially true here when we look at 

the wounds themselves.

Salgado inflicted 38 sharp force injuries (stabbing, slicing, cutting) to 

Garcia’s head and neck. Garcia also suffered 22 sharp force injuries to his 
3

torso and back, 19 to his right arm and 22 on his left arm. In all, Garcia 

suffered more than one hundred sharp force wounds. This many individual 

injuries would take time to inflict, and any reasonable jury could conclude 

this murder did not occur quickly. Indeed, if a killing endures for a period of 

time sufficient to allow a killer to consider his actions, that supports a finding 

of premeditation and deliberation. (Hovarter, supra, 44 Cal.4th at p. 1020 

[“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, from which a jury can find 

premeditation and deliberation”].) That is the situation here.

Even if a jury determined this killing started as an unplanned event, 

they could rationally conclude that Salgado’s assault on Garcia evolved 

during the attack from an impulsive act to one demonstrating Salgado’s 

reflecting on, and then deciding, to kill Garcia. That’s premeditated and 

deliberate murder. “ ‘ “Premeditation and deliberation can occur in a brief 

interval. ‘The test is not time, but reflection. “Thoughts may follow each 

other with great rapidity and cold, calculated judgment may be arrived at 

quickly.” ’ ” ’ ” (People v. Solomon (2010) 49 Cal.4th 792, 812.)

Significant, aside from the number of wounds, is their effectiveness. In 

addition to what are described by the medical examiner as defensive wounds 

on Garcia’s forearms, three of the most serious injuries occurred to his head 

and neck: A stab through the mouth; a stab to the skull that cracked it; and 

a stab into Garcia’s neck, which cut open his jugular (and his voice box), and 

struck the spine, fracturing it. Another stab wound went into the victim’s 

diaphragm. Two more punctured Garcia’s right lung. Any jury viewing this 

evidence rationally could conclude Salgado was alert, focused and goal 

oriented, targeting Garcia’s vital areas. (See People v. Elliot (2005) 
4

37 Cal.4th 453, 471 [where victim stabbed 82 times, with two slashes to her 

throat “[t]he jury could have construed the repeated slashing of [the victim’s]

throat, in connection with the dozens of other wounds, as intimating a 

preconceived design to kill”].)

Further, a reasonable jury could conclude that, after a series of injuries 

that cracked bone and penetrated muscle tissue, Salgado was aware of what 

he was doing and wanted to make sure that the victim died. As an 

illustration, once Salgado cut open Garcia’s jugular vein, blood would be 

“eject[ed] under hydraulic pressure.” However, the cascading blood did not 

stop the attack, suggesting Salgado wanted to make certain Garcia died. 

This too supports a jury’s finding that if not from the very beginning, at some 

point, Salgado’s mental state encompassed premeditation and deliberation in 

the continued fatal attack.

The jury also heard that several of Garcia’s injuries showed minimal 

blood loss (lack of hemorrhaging) —for example, stab wounds deep enough to 

puncture the diaphragm, through the victim’s right flank, and to his lower 

back— which “indicate that the decedent had minimal blood volume left in 

his circulation, meaning he had already lost a large amount of blood, there 

wasn’t more blood to leak out into the tissue, or it could mean that he had 

very poor circulation or no circulation, meaning the heart had stopped.” Put 

another way, he bled out, his jugular injury was no longer under pressure—

which would be visible because it would not be ejecting blood—the victim was 

for all intents and purposes dead (but not legally so), and still Salgado 

stabbed him. Again, a jury could conclude Salgado was being thorough and 

making sure the victim died. That reflects following through with a plan to 

kill, which is classic premeditation and deliberation. “A violent and bloody 

death sustained as a result of multiple stab wounds can be consistent with a 
5

finding of premeditation.” (People v. Pride (1992) 3 Cal.4th 195, 247, italics 

added (Pride).) This evidence alone would support the jury’s finding on 

premeditation and deliberation. However, the jurors received more facts 

supporting their conclusion. I turn now to Salgado’s actions after killing 

Garcia.

2. Post-crime Actions

The jury heard information about post-crime activities. These we do 

not consider in isolation from other evidence in this case. (See People v. 

Thompson (2010) 49 Cal.4th 79, 113 [“While . . . Anderson thus warns against 

using evidence of a defendant’s postcrime actions and statements as the sole

support for upholding a finding of premeditated and deliberate murder, such 

postcrime actions and statements can support a finding that defendant 

committed a murder for which his specific mental state is established by his 

actions before and during the crime” (italics added)], Perez, supra, 2 Cal.4th 

at p. 1128 [post-crime actions probative of premeditation and deliberation]; 

People v. Eggers (1947) 30 Cal.2d 676, 686 [“the means of disposing of the 

body, the efforts made to prevent identification, and [defendant’s] conduct 

both prior to and immediately after the crime was committed” supported the 

jury’s conclusion that the crime was premeditated and deliberate].)

Here, there is no evidence to suggest Salgado called police or an 

ambulance to assist Garcia. (See People v. Williams (2018) 23 Cal.App.5th 

396, 412.) Rather, evidence showed efforts by Salgado, and later his brother, 

to clean the crime scene afterwards. The question is whether those activities 

reflect pre-attack planning. Here, the post-event activities include: partially 

stripping Garcia’s body, efforts to clean the area where the murder occurred, 

getting two drivers—one for victim’s truck, one for the getaway vehicle, 

loading Garcia’s clothes into the truck driving to Fiesta Island, and bringing 
6

material to ignite Garcia’s vehicle. A rational jury could find these activities 

reflect pre-event, organized planning of how to dispose of valuable evidence 

linking defendant to the murder, notions consistent with premeditation, not 

impulsive actions. (Perez, supra, 2 Cal.4th at p. 1128 [conduct after a killing 

may reflect on whether a murder is planned or impulsive].) Here, the postmurder actions took planning, coordinating, and considered reflection to 

concoct. A reasonable jury could conclude such activity, combined with the 

manner Salgado killed Garcia, demonstrated that during the murder Salgado 

acted with premeditation and deliberation. As our supreme court said, “[i]f 

the circumstances reasonably justify the jury’s findings, the reviewing court 

may not reverse the judgment merely because it believes that the 

circumstances might also support a contrary finding.” (People v. Ceja (1993) 

4 Cal.4th 1134, 1139.)

In addition to the physical evidence, jurors heard untruthful 

statements made by Salgado to law enforcement. For instance, of the injuries 

Salgado sustained during the murder, he told detectives that he sustained 

the wounds after using methamphetamine, falling, and waking up with a cut 

to his hand from the mishap. And, when confronted by law enforcement 

about Garcia’s death, Salgado claimed he knew nothing of it. Such actions 

reflect purposeful evasion which, when considered with the other evidence 

discussed above, a reasonable jury could determine reflected the overall 

premeditated and deliberate nature of the murder. “Of course, the appellate 

court does not substitute its judgment for that of the jury but affirms the 

verdict if a rational trier of fact could find premeditation and deliberation 

beyond a reasonable doubt.” (Pride, supra, 3 Cal.4th at p. 247.) I would find 

here the jury acted like any rational jury and that sufficient evidence 
7

supports the verdict. Therefore, I dissent regarding reversal of the 

premeditation and deliberation finding.

Further, finding the balance of Salgado’s arguments unconvincing, I 

would find no error and affirm the judgment.

RUBIN, J.