Filed 8/29/17 P. v. Martinez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. ANTONIO MIRANDA MARTINEZ, Defendant and Appellant.

H042444 (Monterey County Super. Ct. No. SS150148A)

I. Introduction

A jury convicted defendant Antonio Miranda Martinez of first degree murder (Pen. Code, § 187, subd. (a))[1] and found true an allegation that defendant personally and intentionally discharged a firearm causing death or great bodily injury (§ 12022.53, subd. (d)). The trial court sentenced defendant to consecutive terms of 25 years to life for the murder and the firearm allegation.

On appeal, defendant contends the trial court should have granted his motion to dismiss because the prosecution had dismissed two prior complaints involving the same charges (§ 1387, subd. (a)) and neither of those dismissals was “due solely to excusable neglect” (§ 1387.1, subd. (a)). Defendant also contends the trial court erred by instructing the jury on lying in wait as a theory of first degree murder, and he challenges CALCRIM No. 521, the lying-in-wait instruction. For reasons that we shall explain, we will affirm the judgment.

II. Background

Defendant was convicted of murdering Juan Carlos Pedraza. The prosecution’s theory was that defendant was a methamphetamine seller who shot Pedraza, a methamphetamine addict, because Pedraza owed him money for drugs. The defense theory was that defendant was misidentified as the shooter.

A. The Shooting

At about 7:00 p.m. on March 18, 2014, police responded to a report of a shooting at 718 Towt Street. Pedraza was lying on the sidewalk in a large pool of blood, with very large gunshot wounds to his chest and upper arm. Pedraza had 0.2 grams of methamphetamine in his possession.

Resuscitation efforts were unsuccessful. An autopsy revealed that Pedraza had been shot with a shotgun. The shotgun wound to his chest had been inflicted from very close range: six inches or less. The shotgun wound to his arm had been inflicted from one to two feet away.

Eduardo Silva lived across the street from Pedraza. He heard two gunshots and went outside to the front of his house. He saw Pedraza’s body lying on the sidewalk and a white SUV that “peeled out” as it backed out of the driveway of 718 Towt and drove away quickly. The SUV did not have a license plate; it had a yellow star in the license plate area. Silva did not notice any damage to the passenger side of the vehicle.

Robert Padilla lived next door to Pedraza. While in his back yard, he heard two “bangs” and then the sound of a car doing a “peel-out.” He looked over his fence and saw Pedraza on the ground.

CC-1 was 11 years old at the time of trial. He lived about four houses away from Pedraza. He was playing soccer in his front yard when he heard the shooting. He saw a man shooting from a white SUV, “[l]ike a Yukon.” He believed Pedraza was walking home from the store when he was shot.

B. Eyewitness Identification

Cristian Garcia was Pedraza’s nephew. On March 18, 2014, Garcia went to Pedraza’s house at about 5:00 p.m. Pedraza asked Garcia to sell all of Pedraza’s construction tools.

While Garcia was at Pedraza’s house, four older men came by and spoke with Pedraza. Later, defendant drove up in a white Yukon. Defendant pulled into the driveway and began talking with Pedraza. Garcia approached defendant to ask for a cigarette. Garcia saw defendant’s face clearly. Pedraza spoke with defendant, who remained in the Yukon, for about 20 to 25 minutes. Garcia remained nearby for most of the conversation, but he eventually went to the back yard. Right after he went to the back yard, he heard two gunshots. He heard a car leaving and ran to the front of the house, where he saw Pedraza was dead.

Garcia was interviewed by police on the night of the shooting. The next day, Garcia viewed a photographic lineup, and he selected defendant’s photo. At trial, Garcia testified he was sure that defendant was the shooter.

In June 2014, Garcia was arrested for stealing a car. After that arrest, Garcia had “spent some time at” Atascadero State Hospital (Atascadero)—from November 6, 2014 to January 16, 2015.[2] Garcia testified that had not been “feeling well” at that time, but by the time of trial he was taking medication and was feeling better.

Further testimony about Garcia’s mental health came from Elizabeth Lee, a psychologist. Garcia had been diagnosed with schizophrenia and had a history of methamphetamine use. Garcia told Dr. Lee he had not been using methamphetamine around the time of Pedraza’s death. Garcia admitted that he had experienced auditory and visual hallucinations in the past, but he did not describe having any hallucinations at the time of Pedraza’s death. When Garcia had testified at a preliminary hearing on February 17, 2015, he indicated that he could hear voices, that he saw objects moving, and that he had seen Jesus.

C. Defendant’s Arrest and Police Investigation

The day after the shooting, police received a report of a vehicle matching the description of the one used by the shooter: a white GMC Yukon with Gold Star paper plates. The Yukon, which was registered to defendant, was located on the corner of Cortez Street and Towt Street, about a block and a half from Pedraza’s residence. The passenger side of the Yukon had recently been damaged: a photo taken 10 days before the shooting showed no damage to the vehicle. Gunshot residue was found inside the driver’s side door and on the outside of the driver’s side door. A license plate was located on the passenger side floorboard.

Defendant was arrested on March 20, 2014, two days after the shooting. Defendant had a large amount of cash—over $6,000—in his possession. Defendant’s wallet contained a small piece of cardboard with two phone numbers and two names written on it; one was Pedraza’s nickname, “Plebe.”

Around the time of the shooting, defendant had been staying with the Becerra family, which included brothers Ivan and Jose,[3] in the garage of a residence on Kennedy Street. A box containing empty shotgun rounds was found in the garage. The BB’s from those rounds were in a plastic bottle. Defendant’s cell phone was located at the Kennedy Street residence. The cell phone contained no text messages or phone numbers that appeared to be associated with drug sales.

D. Pedraza’s Drug Use

Carrie Appling-Lake knew Pedraza because he did work for her property management business and for her family. She had known him for over 10 years. The last time she had seen Pedraza, she noticed he was “a lot thinner” than before. Also, Pedraza had always been prompt about returning her calls in the past, but he had stopped getting back to Appling-Lake in a timely manner. The last time Pedraza had done work for Appling-Lake, he had showed up an hour late and did not have a working truck.

Pedraza’s son, Josue, testified that he and other family members had moved out of the Towt Street residence a few months before Pedraza’s death due to Pedraza’s drug activity. Pedraza would bring other drug addicts to the house, which was “a big mess.” Pedraza had been experiencing financial difficulties because of his drug use. Josue knew defendant as a friend of Pedraza’s who would come over and drink with Pedraza.

E. Interviews with Ivan and Jose Becerra

After defendant’s arrest, Ivan told the police that defendant sold drugs and that he (Ivan) had been a customer. Ivan initially stated that he had never seen defendant with a gun, but he later admitted he had seen defendant with a revolver a week earlier. Ivan also admitted that he knew defendant had obtained a sawed-off shotgun from Jose in exchange for drugs.

Jose was arrested after the search of his house, and he was interviewed by the police. After initially denying that he had given defendant a shotgun, Jose admitted he had seen defendant with a shotgun once. Jose eventually told the police he had sold defendant a shotgun about a month earlier.

At trial, both Ivan and Jose claimed they had lied during their police interviews.[4] Jose admitted that he would sometimes use methamphetamine with defendant. Ivan testified he had used methamphetamine on the day he was interviewed by the police.

F. Defense Evidence

Defendant purchased the Yukon from Gold Star Motors in December 2013. Gold Star cleans all vehicles, inside and out, before putting them on the lot for sale. The defense argued that the gunshot residue could have been on the Yukon before defendant purchased it, because the gunshot residue would have been “invisible to the eye” and not cleaned off.

When the police served a search warrant at the Kennedy Street residence, all of the occupants left the house pursuant to police orders, except for Jose, who did not come out until 13 minutes later. While searching the residence, police located methamphetamine under Jose’s bed.

Richard Long lived about a block and a half from Pedraza’s residence. He and defendant worked in construction together. Defendant’s cell phone showed a phone call at 7:13 p.m. on March 18, 2014—just a few minutes after the shooting—to Long’s number. The defense argued that defendant would not have “had a casual conversation” with Long right after committing a murder.

Maria Mendoza lived on Towt Street. She was at a neighbor’s house at the time of the shooting. She heard gunshots but thought they were fireworks. When she turned to look, she saw a person fall down and a Yukon with California plates “take off.”

Leobardo Quintero also lived on Towt Street. On the day of the shooting, he saw a white vehicle “like a Blazer” in Pedraza’s driveway. From inside his house, he heard two shots. He looked outside and saw the vehicle driving away. There was no damage to the vehicle. Quintero knew defendant because defendant’s parents lived on Towt Street. He saw defendant at the house next door, about 15 to 18 minutes after the shooting. Defendant asked Quintero “what happened.” After Quintero said that someone had shot Pedraza, defendant asked, “who did it.”

G. Charges, Verdicts, and Sentencing

On March 24, 2014, the District Attorney filed a complaint (case No. SS140692A) charging defendant with murder. Defendant asserted his speedy trial rights, and the case was set for trial on November 17, 2014. However, on November 13, 2014, the prosecutor dismissed the case and filed a new complaint (case No. S142884A). Defendant again asserted his speedy trial rights. On January 29, 2015, the prosecutor again dismissed the case and filed a new complaint (case No. SS150148A).

Defendant moved to dismiss the complaint, arguing that his prosecution for murder was barred since the charge had previously been dismissed twice. (See § 1387, subd. (a).) The District Attorney opposed the motion to dismiss, arguing that the third filing was permitted because the prior dismissals were attributable to “excusable neglect.” (See § 1387.1, subd. (a).) The trial court denied the motion to dismiss.

A jury subsequently convicted defendant of first degree murder (§ 187, subd. (a)) and found true an allegation that defendant personally and intentionally discharged a firearm causing death or great bodily injury (§ 12022.53, subd. (d)). The trial court sentenced defendant to consecutive terms of 25 years to life for the murder and the firearm allegation.

III. Discussion

A. Motion to Dismiss

Defendant contends the trial court should have granted his motion to dismiss pursuant to section 1387, because the prosecution had dismissed two prior complaints involving the same charges and neither of those dismissals was “due solely to excusable neglect,” which would permit a third filing under section 1387.1.

1. Statutory Background and Standard of Review

Section 1387, subdivision (a) provides in pertinent part: “An order terminating an action pursuant to this chapter . . . is a bar to any other prosecution for the same offense if it is a felony . . . and the action has been previously terminated pursuant to this chapter . . . .”

Section 1387.1, subdivision (a) provides: “(a) Where an offense is a violent felony, as defined in Section 667.5^[[5]] and the prosecution has had two prior dismissals, as defined in Section 1387, the people shall be permitted one additional opportunity to refile charges where either of the prior dismissals under Section 1387 were due solely to excusable neglect. In no case shall the additional refiling of charges provided under this section be permitted where the conduct of the prosecution amounted to bad faith.”

The term “excusable neglect” is defined in section 1387.1, subdivision (b): “As used in this section, ‘excusable neglect’ includes, but is not limited to, error on the part of the court, prosecution, law enforcement agency, or witnesses.” Case law has further defined the term: “Simply [put], ‘[e]xcusable neglect is neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances.’ [Citation.]” (People v. Woods (1993) 12 Cal.App.4th 1139, 1149; see also People v. Massey (2000) 79 Cal.App.4th 204, 211 (Massey).)

As used in section 1387.1, the term “bad faith” refers to “a situation where one party commits acts with the purpose and intent to cause harm to another, or with a conscious disregard of the welfare of the other party, with full knowledge of the negative consequences of his or her actions.” (Miller v. Superior Court (2002) 101 Cal.App.4th 728, 744 (Miller).)

“The application of section 1387.1 is generally a discretionary determination for the judge which should be afforded great weight unless clear abuse of discretion is demonstrated. [Citation.]” (Massey, supra, 79 Cal.App.4th at p. 211.)

2. Proceedings Below – Motion to Dismiss

As noted above, the District Attorney initially filed a complaint on March 24, 2014, but the prosecutor moved to dismiss that complaint and refiled a new complaint on November 13, 2014. The prosecutor subsequently dismissed and refiled a second time, on January 29, 2015.

Defendant moved to dismiss, arguing that his prosecution for murder was barred by section 1387 since the charge had previously been dismissed twice and no statutory exception applied. The District Attorney opposed the motion to dismiss, arguing that the third filing was permitted under section 1387.1 because the prior dismissals were attributable to “excusable neglect.”

In a declaration, the prosecutor described the reason for the first dismissal and refiling on November 13, 2014. After his arrest in June 2014, Garcia—a “key witness”—had been found incompetent to stand trial. On November 6, 2014, Garcia was sent to Atascadero. The prosecutor believed that Garcia was incompetent to testify and that he had insufficient evidence to proceed without Garcia’s testimony. Garcia had only been at Atascadero for a “relatively short time” at that point and in the prosecutor’s experience, a person who has been found incompetent to stand trial needs a few months of treatment before there are any “positive impacts.”

Prior to the second dismissal and refiling on January 29, 2015, the prosecutor “began researching the issue of whether a third filing would be available” if Garcia remained incompetent to stand trial. On January 9, 2015, the prosecutor reviewed an update on Garcia’s status, which indicated that Garcia was still incompetent to stand trial. On January 22, 2015, the prosecutor learned that Guillermo Mixer, an investigator for the District Attorney’s Office, had interviewed Garcia and believed that Garcia “could not be a witness” due to his mental condition. A few days later, the prosecutor reviewed a recording of the Mixer-Garcia interview. In addition, the prosecutor had Dr. Lee review some materials pertaining to Garcia’s mental status. Dr. Lee opined that if Garcia was returned to county jail, he “would not do well” and might “completely freeze up or lie in order to avoid the stress.” Dr. Lee had seen progress, however, and hoped Garcia would be “much better” after a few months of further treatment. The prosecutor believed that Garcia might be competent to testify but that there was a risk he would not be “compelling as a witness,” such that there was still “insufficient evidence to proceed.” The prosecutor also noted that an investigator was also having problems serving some witnesses with subpoenas, that a fingerprint expert was on leave due to a medical emergency, and that the prosecution had only recently been able to obtain cell phone data.

In another declaration, District Attorney Investigator Mixer described his January 15, 2015 interview of Garcia at Atascadero. Garcia had been “confused, mentally impaired, and incapable of communicating in a coherent manner.” Mixer also described his attempts to contact Jose and Ivan, his attempts to find a fingerprint expert, and his attempts to locate witnesses who had resided at Pedraza’s residence at the time of the shooting.

3. Hearing on Motion to Dismiss

The trial court held a hearing on the motion to dismiss over two days. During the hearing, the trial court took judicial notice of the fact that just after the second dismissal, Garcia had been certified as mentally competent—the certification had been filed on February 5, 2015 and was dated January 29, 2015.

Investigator Mixer testified about his attempts to serve various witnesses with subpoenas. He could not find any of the people who had lived at Pedraza’s residence at the time of the shooting, despite going out to the residence twice and searching for county jail records. He tried to serve Ivan and Jose several times, but they were not at their residence on any of those occasions.

Investigator Mixer also testified about his interview of Garcia at Atascadero on January 15, 2015.[6] Garcia seemed very nervous, had a difficult time making eye contact, appeared disheveled, and was reluctant to talk. Garcia’s thought process was disoriented and he indicated he was communicating with spirits. Mixer did not believe Garcia would be able to communicate “in a manner that would be understood,” and Mixer had communicated that to the prosecutor.

District Attorney Investigator Peter Austen testified that in December 2014, he had determined that some cell phone mapping data was missing. He had since been able to find some of the data, but he was still working to get additional data.

Dr. Lee testified that the prosecutor had contacted her on January 26, 2015, and had sent her some materials relating to Garcia’s competency, including an August 2014 competency evaluation report, a November 2014 progress report, police reports, and a recorded interview from January 15, 2015. Dr. Lee spoke with the prosecutor the next day, informing him that she was not sure Garcia would be competent to testify. It appeared that Garcia’s condition was improving, but Dr. Lee was concerned about him “disintegrating in the courtroom process.”

Detective Zuniga began trying to retrieve the “sector or GPS coordinates” for defendant’s cell phone in April 2014. He forwarded the information to the Department of Justice for analysis, but he did not inform the prosecutor until late January or early February of 2015. Detective Zuniga also tried to retrieve data from Pedraza’s cell phone in April 2014, to look for communication between defendant and Pedraza. However, he had to go through Apple, which informed him that it would be about a six-month wait, and the data was not provided until January 2015.

Detective Zuniga had interviewed Garcia on July 1, 2014. At that time, Garcia appeared capable of understanding the questions he was asked and was able to communicate in a manner that Detective Zuniga could understand. However, “it was very hard to gather his focus on one particular question.”

The prosecutor discussed his past experiences with witnesses who were “not all there mentally” and had difficulty communicating while testifying. Whereas an interview occurs in “more of a conversational setting,” trial testimony is more formal and a witness’s answer to a question may be stricken as non-responsive if the answer is not “appropriate” or “on target.” The prosecutor had handled a number of prior cases involving witness competency. He had seen people “return from Atascadero sit in the jail and decompensate.”

Regarding the first dismissal, the prosecutor testified that the decision was made after he learned Garcia had been found incompetent to stand trial in October 2014 but not transferred to Atascadero until November 6, 2014. Based on his review of the competency report prepared in Garcia’s case several months earlier, which described Garcia’s hallucinations and disorganized thoughts, the prosecutor did not believe Garcia would be competent or a credible witness, “considering he’d been at Atascadero for a week” and had received no treatment while in jail awaiting transfer to Atascadero. The prosecutor was aware he could have continued the case for a week, but he had never seen anyone regain competency in less than two months. He did not want to mislead the court by asserting that he would be ready in one week, and he did not want to “put the defendant sitting there for another week [of] dead time.”

Regarding the second dismissal, the prosecutor felt that given Garcia’s mental health status, he should have as much corroborating evidence as possible before going to trial, but there were problems with obtaining certain evidence. First, Pedraza’s fingerprints had been identified on beer cans at the scene and defendant’s fingerprints had been identified on a beer can inside the vehicle, and an expert witness was prepared to testify that the cans likely came from the same pack. However, the expert was unavailable due to a medical emergency, and no replacement expert had been found by January 26, 2015. Second, the prosecutor wanted to establish motive by having witnesses from Pedraza’s residence testify, since they had previously given statements regarding Pedraza’s financial problems, but they could not be located. Third, Ivan and Jose had given statements “that put a shotgun in the defendant’s hands,” but the investigator could not serve them. Fourth, the prosecutor was hoping to obtain cell phone tower information in order to “put the defendant in the area of the homicide,” but that information had not been obtained yet, despite the fact that warrants had issued in March of 2014. Fifth, the prosecutor wanted information from Pedraza’s cell phone to establish that he and defendant knew each other, but he had learned that the information was not yet available.

At the time of the second dismissal, the prosecutor had spoken to Investigator Mixer and listened to the interview Mixer had conducted with Garcia. The prosecutor had “grave concerns” about proving the case in light of Garcia’s doubtful credibility and the lack of corroborating evidence. The prosecutor considered having Garcia transported for an Evidence Code section 402 hearing, but he was concerned that the transfer would be disruptive and stressful to Garcia, such that even if he was found competent, he would “nut up” when called to testify, especially if the defense cross-examined Garcia about his hallucinations. The prosecutor had called some of Garcia’s doctors at Atascadero but was unable to get any information from them. Defendant’s treating psychiatrist had informed the prosecutor that he “wasn’t sure he was legally allowed” to speak with the prosecutor and that he would call back, but he never did. None of the other people the prosecutor had called at Atascadero called him back, either.

On cross-examination, the prosecutor acknowledged he had probably not listened to all of Garcia’s recorded interviews from “start to finish,” but he noted that he had watched or listened to parts of multiple interviews and that he had listened to the entire interview conducted on January 15, 2015. He did not recall listening to Detective Zuniga’s interview of Garcia on July 1, 2014. When he learned that Garcia had been found incompetent to stand trial, he did not contact the jail to find out about Garcia’s treatment or progress, and he did not seek to have Garcia evaluated prior to the first dismissal. The prosecutor did not seek an evaluation of Garcia prior to the second dismissal because he knew Garcia was being treated by experts at Atascadero. He did not subpoena any of Garcia’s mental health records from Atascadero, but he did review a “1370 court progress report” that was signed on December 2, 2014, approved on December 3, 2014, and filed on December 8, 2014.

At the end of the hearing, defendant argued that the prosecutor had acted in bad faith and that there was no excusable neglect. The prosecutor argued that there was excusable neglect and that he did not act in bad faith.

4. Trial Court Findings

The trial court denied the motion to dismiss. The court first noted that the prosecution had the burden of showing that “one of the two prior dismissals was due solely to [excusable] neglect,” that excusable neglect is “neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances,” and that “unless inexcusable neglect is clear, the policy favoring trial on the merits prevails.” The trial court further noted that “a finding of diligence is equivalent to a finding of excusable neglect.”

As to the first dismissal and refiling, the trial court found the prosecutor credible in asserting that he believed Garcia was not competent to testify. Garcia had been transported to Atascadero only 11 days before the initial trial date of November 17, 2014, and it was “reasonable” for the prosecutor to decide to dismiss the case at that time due to Garcia’s “unavailability . . . as a competent and qualified witness.” The trial court found this was excusable neglect: “The neglect was the failure of the People to have [Garcia] available as a witness on the date of trial. The neglect was excusable because [the prosecutor] had acted with diligence in determining where [Garcia] was located, his status, and when he had started receiving his treatment at Atascadero. Basically reasonable efforts had been made to secure the witness[’s] attendance . . . .” The trial court also found no bad faith. Although the prosecutor had not listened to Garcia’s full police interview, the prosecutor had reviewed transcripts or summaries, and the interview had taken place before Garcia’s incompetency finding and commitment to Atascadero.

The trial court noted that it did not need to address the second dismissal since it had found excusable neglect as to the first dismissal. (See § 1387.1 [third refiling permissible if “either of the prior dismissals under Section 1387 were due solely to excusable neglect”].) However, the trial court would do so “in the interest of being complete.” Considering the “totality of the circumstances,” the trial court found excusable neglect. At the time of the second dismissal, the prosecutor “knew that there was a lack of corroborating evidence” for Garcia’s testimony, which might not have been “believable enough for a conviction due to his mental state or mental issues.” When interviewed by Investigator Mixer, Garcia had been “unresponsive and unfocused” and had referred to reading minds and seeing spirits, and Dr. Lee had believed that Garcia was at a risk of lying or freezing up on the stand. Although Garcia had been certified as competent just a week later, it was speculative that the prosecutor could have discovered that, even if Garcia had been brought to court for a hearing. The relevant circumstances included the prosecution’s reasonable attempts to locate and subpoena Ivan and Jose. Finally, there was no bad faith with respect to the second dismissal. The prosecutor had dismissed the case before the 60th day, which indicated that the prosecution was not “simply seeking to keep the defendant in custody as long as possible.”

5. Analysis

Defendant argues that the first dismissal and refiling was not due to “excusable neglect” because the prosecutor did not undertake sufficient investigation into Garcia’s availability as a witness and simply made a tactical decision to wait and see if Garcia would be more compelling after further treatment at Atascadero.

Defendant argues that reasonable diligence was not shown for several reasons. He first complains that the prosecutor failed to read “the alienist’s reports which led to the section 1370 referral.” However, the prosecutor could not have read “the alienist’s reports which led to the section 1370 referral” at the time of the first dismissal on November 13, 2014, because the report or reports had not yet been prepared. As noted above, the “[section] 1370 court progress report” was signed on December 2, 2014, approved on December 3, 2014, and filed on December 8, 2014. The report finding Garcia had returned to competency was prepared on January 29, 2015 and filed on February 5, 2015.

Defendant also faults the prosecutor for failing to review Detective Zuniga’s interview of Garcia prior to the first dismissal. However, Detective Zuniga’s July 1, 2014 interview of Garcia had taken place several months before Garcia was found incompetent to stand trial and thus was not particularly relevant to Garcia’s competence to testify at the time of the first dismissal on November 13, 2014.

Defendant additionally notes that prior to the first dismissal, the prosecutor failed to obtain Garcia’s Atascadero records, failed to talk to someone at Atascadero, failed to seek an Evidence Code section 402 hearing as to Garcia’s competence as a witness, and failed to seek a continuance “to allow any of these things to be done.” However, at the time of the first dismissal on November 13, 2014, Garcia had only been transferred to Atascadero a week earlier, on November 6, 2014. The prosecutor knew Garcia had received no treatment while in jail awaiting transfer to Atascadero, and he had never seen anyone regain competency in less than two months. Moreover, the prosecutor testified that he made a number of attempts to contact personnel at Atascadero, all without success. The record thus supports the trial court’s finding that the prosecutor exercised reasonable diligence prior to the first dismissal.

Defendant acknowledges that a number of cases have found excusable neglect when the prosecution is unable to obtain the attendance of key witnesses despite reasonable diligence. (E.g., People v. Mason (2006) 140 Cal.App.4th 1190, 1197 [prosecutor “had every reason to believe that” the witness “would make himself available, as he had in the past”]; Miller, supra, 101 Cal.App.4th at p. 742 [prosecutor made “reasonable efforts to locate a recalcitrant witness”]; Massey, supra, 79 Cal.App.4th at p. 211 [“reasonable efforts had been made to secure the witnesses’ attendance”].) Defendant contends those cases are distinguishable from this case, which he describes as one in which the prosecutor “made a tactical decision not to produce a witness in the belief the witness would be more persuasive after time had passed.”

The record does not support defendant’s characterization of the first dismissal as a tactical decision by the prosecutor not to produce Garcia. Rather, as the trial court found, the prosecutor dismissed the case because Garcia was “unavailabl[e] . . . as a competent and qualified witness.” Under Evidence Code section 701, subdivision (a)(1), a person is “disqualified to be a witness” if he is or she is not capable of “expressing himself or herself concerning the matter so as to be understood.” (See also People v. Anderson (2001) 25 Cal.4th 543, 574 (Anderson) [a witness who “cannot communicate intelligibly” may be disqualified from testifying].) Prior to the first dismissal, the prosecutor had reviewed the competency report prepared in Garcia’s case, which described Garcia’s hallucinations and disorganized thoughts and concluded he was not competent to stand trial. (Cf. People v. Lyons (1992) 10 Cal.App.4th 837, 844 [witness’s testimony should not have been admitted where it was “clear” that she was “delusional and unable to distinguish truth from lies”].) The prosecutor reasonably believed Garcia would not be able to “communicate intelligibly” (Anderson, supra, at p. 574), such that he was not competent to testify. The prosecutor found it significant that Garcia had been transported to Atascadero for treatment only a week earlier (and 11 days before the initial trial date of November 17, 2014). The prosecutor had never seen anyone regain competency in less than two months. The trial court explicitly found the prosecutor credible with respect to the foregoing testimony, a determination to which we must defer. (See People v. Stewart (2000) 77 Cal.App.4th 785, 790 [credibility of witnesses is a matter “exclusively within the province of the trier of fact”].)

Defendant acknowledges that Garcia had been found incompetent to stand trial, but he asserts that competency to stand trial under section 1367 is not the same as witness competency under Evidence Code section 701. As he points out, a defendant is incompetent to stand trial “if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” (§ 1367.) However, as discussed above, the record supports the trial court’s finding that the first dismissal was due to Garcia’s “unavailability . . . as a competent and qualified witness” in light of not just the competency finding, but the competency report, which indicated that due to his hallucinations and disorganized thoughts, Garcia would not be able to “communicate intelligibly” to a jury without treatment at Atascadero. (See Anderson, supra, 25 Cal.4th at p. 574.)

As to the second dismissal, defendant claims that the dismissal was due to a number of factors, and not based “solely” on excusable neglect. Because we have found that the first dismissal was “due solely to excusable neglect” (§ 1387.1, subd. (a)), we need not address the second dismissal (see ibid. [third refiling permissible if “either of the prior dismissals under Section 1387 were due solely to excusable neglect”]; Massey, supra, 79 Cal.App.4th at p. 212).

B. Lying in Wait

Defendant contends the trial court erred by instructing the jury on lying in wait as a theory of first degree murder[7] because substantial evidence did not support that theory.

1. First Degree Murder Instruction

Pursuant to CALCRIM No. 521, the jury was instructed as follows: “The defendant has been prosecuted for first degree murder under two theories: One, the murder was willful, deliberate, and premeditated. And two, the murder was committed by lying in wait. . . . [E]ach theory of first degree murder has different requirements, and I will instruct you on both. [¶] You may not find the defendant guilty of first degree murder unless all of you agree that the People have proved that the defendant committed murder, but all of you do not need to agree on the same theory. [¶] Deliberation and premeditation. The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately and with premeditation. . . . [¶] . . . [¶] Lying in wait. The defendant is guilty of first degree murder if the People have proved that the defendant murdered while lying in wait or immediately thereafter. The defendant murdered by lying in wait if, one, he concealed his purpose from the person killed, two, he waited and watched for an opportunity to act, and three, then from a position of advantage he intended to and did make a surprise attack on the person killed. [¶] The lying in wait does not need to continue for any particular period of time, but its duration must be substantial enough to show a state of mind equivalent to deliberation or premeditation. Deliberation means carefully weighing the considerations for and against a choice, and knowing the consequences deciding to act. An act is done with premeditation if the decision to commit the act is made before the act is done. [¶] A person can conceal his or her purpose even if the person killed is aware of the person’s physical presence. The concealment can be accomplished by ambush or some other secret plan. [¶] . . . The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder, and the murder is second degree murder.”

2. Argument to the Jury

During argument to the jury, the prosecutor described how defendant pulled into Pedraza’s driveway, engaged Pedraza in “a casual conversation,” and waited for Garcia “to go to the back of the house” before shooting Pedraza. The prosecutor argued that the evidence supported a finding that the murder was premeditated and deliberate, and that it was also committed by lying in wait. As to lying in wait, the prosecutor argued: “Lying in wait is the defendant concealed his purpose . . . while he was there from the victim. He waits and watches for an opportunity to act, and then from a position of advantage he launches a surprise attack.”

The prosecutor then went into more detail, arguing that defendant concealed his purpose from Pedraza by giving “no indication that this was going to go bad” when he first pulled into the driveway, by waiting and watching for “an opportunity to act,” and, after Garcia went into the backyard, by shooting “from a position of advantage” when Pedraza was not “expecting this to happen.” The prosecutor acknowledged that this incident was “not a ‘jumping out of the bush’ kind of scenario” because defendant concealed only his intent, not his person.

3. Analysis

“A trial court must instruct the jury on every theory that is supported by substantial evidence, that is, evidence that would allow a reasonable jury to make a determination in accordance with the theory presented under the proper standard of proof. [Citation.] We review the trial court’s decision de novo. In so doing, we must determine whether there was indeed sufficient evidence to support the giving of a lying-in-wait instruction. Stated differently, we must determine whether a reasonable trier of fact could have found beyond a reasonable doubt that defendant committed murder based on a lying-in-wait theory. [Citations.]” (People v. Cole (2004) 33 Cal.4th 1158, 1206.)

Defendant contends the lying-in-wait theory did not apply here because the evidence showed he was seen by witnesses and the shooting took place on a public street. He contrasts those facts with those of People v. Ruiz (1988) 44 Cal.3d 589 and a string cite of 36 other cases, all of which found sufficient evidence to support a lying-in-wait instruction. However, cases finding sufficient evidence of lying in wait do not establish that the facts here were necessarily insufficient to support a lying-in-wait instruction. For example, although some of the cited cases involved ambush-type attacks, our Supreme Court has held that lying in wait does not require such evidence: “ ‘ “ ‘The element of concealment is satisfied by a showing that a defendant’s true intent and purpose were concealed by his actions or conduct. It is not required that he be literally concealed from view before he attacks the victim.’ ” ’ [Citation.]” (People v. Stevens (2007) 41 Cal.4th 182, 202 (Stevens).) Thus, the cited cases do not establish that in this case, there was no substantial evidence to support a lying-in-wait instruction.[8]

We find substantial evidence of lying in wait here. First, although defendant did not conceal himself from Pedraza or Garcia, he did conceal his “deadly purpose” by engaging Pedraza in casual conversation, thereby “creating or exploiting a false sense of security.” (See Stevens, supra, 41 Cal.4th at p. 203.) Defendant then “waited and watched for an opportunity to act” (CALCRIM No. 521), by keeping up the conversation until Garcia—the only eyewitness nearby—left for the back of the house. Finally, when defendant shot Pedraza from inside his vehicle, defendant took Pedraza by surprise and “struck from a position of surprise and advantage, factors which are the hallmark of a murder by lying in wait.” (See People v. Hardy (1992) 2 Cal.4th 86, 164.)

Because a reasonable trier of fact could have found beyond a reasonable doubt that defendant concealed his purpose, watched and waited until Garcia left, and then took Pedraza by surprise when he shot him from a position of advantage, substantial evidence supported the jury instruction on first degree murder by lying in wait.

C. CALCRIM No. 521

Defendant challenges CALCRIM No. 521, the lying-in-wait instruction. The focus of defendant’s argument is the portion of CALCRIM No. 521 that requires the jury find the “the defendant murdered while lying in wait or immediately thereafter.” (Italics added.) He contends the instruction improperly focuses on the “temporal relationship between waiting and murder” rather than the “causal relationship between the two.” Defendant raises this issue specifically to preserve it for review by the California Supreme Court.

As the Attorney General points out, defendant failed to object to CALCRIM No. 521 below. Relying on People v. Laws (1993) 12 Cal.App.4th 786 (Laws), the Attorney General argues we should find defendant’s claim forfeited. In Laws, the defendant presented a similar challenge to CALJIC No. 825. The court rejected that argument and also found it forfeited: “To the extent defendant believes the instruction on murder perpetrated by means of lying in wait required elaboration or clarification to ensure that the jurors understood the requisite causal relationship between the lying in wait and the murder, he had the obligation to request the trial court to give an amplifying instruction. [Citations.] Because he failed to do so, he cannot complain on appeal. [Citation.]” (Laws, supra, at pp. 796-797.)

Defendant contends that no objection was necessary because the instruction contained an incorrect statement of law and affected his substantial rights. (See People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7; § 1259.) Even if the issue was not forfeited by defendant’s failure to object, we would find it lacks merit.

“Challenges to the wording of jury instructions are resolved by determining whether there is a reasonable likelihood that the jury misapplied or misconstrued the instruction. [Citation.]” (People v. Crew (2003) 31 Cal.4th 822, 848.)

Defendant’s challenge to CALCRIM No. 521 “ignores a commonsense reading of the instruction as a whole.” (Laws, supra, 12 Cal.App.3d at p. 796.) Although CALCRIM No. 521 initially refers to a killing “while” lying in wait or immediately thereafter, the instruction then lists three elements that must be proven beyond a reasonable doubt to establish such a killing: that the defendant (1) “concealed his purpose,” (2) “waited and watched for an opportunity to act,” and (3) “from a position of advantage . . . intended to and did make a surprise attack on the person killed.” These elements in combination, and in particular the third element, require that the act of lying in wait must be the mechanism by which the killing is achieved, that is, it must cause the killing. The defendant must intend to and “make a surprise attack on the person killed.” (CALCRIM No. 521, italics added.) This requires that the defendant’s acts of concealment affect the killing. The instruction does not permit a jury to find a lying-in-wait murder simply because a defendant concealed himself or his purpose at some point prior to or during the commission of the killing. There is no reasonable likelihood the jury misconstrued CALCRIM No. 521 as permitting a mere temporal connection between the defendant’s actions and the killing to prove lying in wait.

IV. Disposition

The judgment is affirmed.

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