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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Donna G. Garza, Judge. Affirmed.

ORIGINAL PROCEEDINGS; petitions for writ of habeas corpus. Donna G. Garza, Judge. Petition for writ of habeas corpus in case No. E038990 dismissed without prejudice on motion of defendant. Petition for writ of habeas corpus in case No. E040120 denied without prejudice to filing a petition for writ of habeas corpus in the trial court.

Patrick M. Ford, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, David Delgado-Rucci, Ronald K. Jakob, Scott Taylor, and Michael Gower, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant appeals from his conviction for murder. (Pen. Code, § 187.)^[1] On appeal he contends that the court committed instructional error. We find any error to be harmless. The judgment is affirmed.

Defendant also filed a writ of habeas corpus (case No. E038990) which we considered with the direct appeal (case No. E037807) solely for the purpose of determining whether an order to show cause should issue. Before oral argument, we issued a tentative opinion affirming the judgment and denying the petition for habeas corpus for failure to state a prima facie case due to inadmissible hearsay in the affidavits of defendant's wife and trial counsel in support of the petition. There was no affidavit from the only eyewitness to testify at trial, and the affidavits submitted only recounted information that eyewitness told them.

On March 7, 2006, immediately before oral argument was to be heard in this case, counsel for defendant attempted to file an amendment to the petition. We denied the filing of the amendment. The court heard oral argument, and the cause was submitted.

On March 22, 2006, counsel for defendant submitted for filing a motion to either withdraw the petition for habeas corpus (case No. E038990) or dismiss it without prejudice. Concomitantly with that motion, counsel submitted for filing a new petition for writ of habeas corpus containing a new affidavit from the only eyewitness to testify at trial. It was filed March 23, 2006 (case No. E040120).

We grant defendant's motion to dismiss the first petition for writ of habeas corpus in case No. E038990 without prejudice to refiling it.

However, we decline to hear the new petition in case No. E040120. We deny that petition without prejudice to filing it in the trial court. Assuming without deciding that it states a prima facie case, we would have issued the order to show cause and made it returnable to the trial court for an evidentiary hearing. Defendant can simply refile his petition there, and the trial court can determine whether it states a prima facie case. If the court determines that it does, then it can proceed with an evidentiary hearing and rule on that petition.

PROCEDURAL FACTS

Defendant was charged in the information with murder. It was further alleged that during the commission of the offense he personally discharged a firearm (§ 12022.53, subd. (d)) and that he had suffered a prior conviction for robbery (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)).

The prior conviction allegation was bifurcated. The case was heard by a jury. Defendant did not testify. The jury convicted defendant of second degree murder and found the intentional discharge of a firearm enhancement true. The court found the prior conviction true and sentenced defendant to a term of 55 years to life.

FACTS

Misael Rosales (the victim) and Monroe Thomas (Thomas) lived across the street from each other and had been friends for about three years. The victim did janitorial work at Loma Linda University Medical Center (the hospital). On May 8, 2004, after drinking most of the day, the victim and Thomas went to the hospital to clean the emergency room floor using the hospital's buffer. Both donned scrubs. Thomas helped even though he was not employed at the hospital. When they were done, they left with the buffer while still wearing scrubs. Thomas testified that the buffer was borrowed by the victim in order to do a cleaning job. It was placed in back of the victim's Ford Explorer.

They returned to the victim's home to scrounge change in order to buy more beer.^[2] They then left for the Muscoy Liquor Store after midnight on May 9th. Once there, they determined that they were short and could not buy a beer. The victim backed up to leave and bumped into defendant's dark green sport utility vehicle (SUV). Thomas told the victim to stop as he had hit a vehicle. The victim denied that he had. There was a biker club next door, and a large group standing out in front of the club began to yell at the victim.^[3] Defendant approached on the passenger side and told the victim, who did not understand English very well, that he had struck defendant's car and asked what he was going to do about it.

The victim had his insurance papers in the car with him and at some point retrieved them. They got out of the car and went to its rear. Thomas observed a gun in defendant's pants pocket. Thomas could not see any damage to the cars and returned to the passenger side of the victim's car to get a cigarette. Defendant followed him there and told him that he did not have anything to do with this. Defendant then punched Thomas three times in the face and head. Later, a police officer felt a bump behind Thomas's left ear, but saw no other injuries.

Thomas ran toward the sidewalk. He stopped and looked back. He saw defendant and the victim together about two to three feet apart. Defendant was pacing and waving a nine-millimeter gun around. Thomas was concerned because he did not think that his friend knew English well enough to understand what defendant was saying to him. There were some other people near the cars, but they were substantially more than three feet from where defendant and the victim stood. Thomas looked away for three seconds and then heard a shot.

Thomas looked back and he could no longer see his friend, but he did see defendant standing and looking in his direction while holding the gun. Concerned for his own safety, Thomas ran into the liquor store. Thomas looked back and saw defendant enter his SUV and drive away.

Thomas returned to the parking lot and saw his friend in a pool of blood. Thomas heard sirens and left the scene, walked two miles to his home and put on his pajamas. The crowd that had gathered from the biker club also left the scene. Thomas did not call the police.^[4]

At the scene, the police found an envelope with the victim's insurance papers on the ground near his body. There was one spent nine-millimeter cartridge on the ground. There was a dark green paint transfer on the bumper of the victim's vehicle.

The victim had a single gunshot wound to the head that was determined to be the cause of death. The victim's blood-alcohol level was at least .17 percent.^[5] There were no drugs in his system. The pathologist testified that stippling around the wound indicated that the victim was shot at close range, from inches to two feet with three feet the outside limit.

The morning of May 9th, a detective went to the victim's home to talk with the victim's wife. He saw Thomas across the street and recognized him from viewing a security videotape from the liquor store. The detective made contact with Thomas.

Thomas looked concerned as the detective approached and readily admitted to being at the scene of the crime. He gave a detailed interview of the events of May 8th and 9th. He also told the detective that he had seen defendant around his neighborhood. He did not know his true name, but he was known as â€