P. v. Ortiz

Filed 9/19/07 P. v. Ortiz CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Richard R. Romero, Judge. Affirmed.

Cynthia A. Thomas, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven E. Mercer and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Defendant and appellant, Martin Ortiz, appeals from the judgment entered following his conviction, by jury trial, for two counts each of attempted murder and assault with a firearm, with firearm use enhancements (Pen. Code,  187, 245, 12022.5, 12022.53).^[1] Sentenced to state prison for 29 years, Ortiz claims there was trial error.

The judgment is affirmed.

BACKGROUND

Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, we find the evidence established the following.    

1. Prosecution evidence.

Defendant Ortiz and his girlfriend, Jacqueline Barrera (Jackie), had two young children. In September 2003, Jackie and the children returned to California from Indiana, where they had been living with Ortiz, and moved in with Jackies mother, Norma. Jackie got a job at Ralphs supermarket. Ortiz also moved back from Indiana, but he lived apart from Jackie and the kids.

On the morning of November 11, 2003, Ortiz was supposed to pick up Jackie and take her to work. When he did not show up, Jackie walked to work.^[2] As she was walking, she saw Ortiz drive by in their car, a brown Ford Explorer with Indiana license plates. There was a woman in the car with Ortiz. Jackie and Ortiz argued. Ortiz told her, It is not what you think, but Jackie said it was done and over with. Ortiz drove off. Jackie later called Norma and asked to be picked up from work because she didnt want to see Ortiz.

Norma took four-year-old Eric, Ortiz and Jackies son, along when she went to pick up Jackie that afternoon. Norma drove into the Ralphs parking lot. Suddenly, Ortiz drove up. He and Norma argued. When she told him to leave Jackie alone, Ortiz threatened to kill Norma, saying: Im going to kill you, bitch. At that point, Jackie walked out of the Ralphs store and got into Normas car. Norma drove off.

When Norma got home, she parked on the street. Norma, Jackie and Eric got out of the car and started walking toward Normas apartment complex. Jackie was walking a little ahead of Norma and Eric. As Jackie was going through the security gate, Ortiz drove up and began yelling out her name. Jackie kept walking. Norma and Eric were still behind her. When Norma turned around, Ortiz again said to her, Im going to kill you, bitch. As Norma kept walking, she heard two gunshots. She turned and saw that Ortiz, who was still inside the Explorer, had a gun in this hand which he was pointing straight up into the air. Norma and Eric, who was right beside her, kept going.^[3] As they went up the staircase leading to Normas apartment there were three or four more shots. One bullet hit the stairs near Normas foot. Norma testified, I kept walking and he was shooting, and when I was going up the stairs to get into my apartment, one of the shots hit one of the stairs. As I put my foot on the stair, the shot hit there and it just flew up. Thats when I went in [i.e., into her apartment]. I was scared and I told my husband to call the police . . . . Several of Normas neighbors witnessed the shooting. Just as Norma was entering her apartment, one of the neighbors said, Just a little bit more and it would have killed you.

At about 5:30 p.m., Los Angeles Police Officer Gil Carranza and his partner heard a radio alert about a drive-by shooting. They happened to be in the area and responded to Normas apartment complex. Just as they were getting out of their patrol car they encountered Antonio V., who pointed out the victims. After quickly checking the victims, Carranza interviewed Antonio. Antonio said he and his son Donovan had been walking home from the park, which was right across the street from the apartment complex, when he saw a tan Explorer drive by and [the driver] shoot three shots in the air and three at the victim. Antonio described the gunman as Hispanic, 20 to 30 years old, with a shaved head. Carranza also interviewed Antonios 13-year-old son, Donovan, who said that as he and Antonio were coming from the park, a tan Explorer drove by and stopped in front of the residence and fired six shots.

Carranza interviewed Norma, who said Ortiz showed up at the apartment complex after arguing with her at Ralphs. Ortiz threatened to kill her, fired three shots into the air and then, as Norma was going up the stairs, she could see the second three shots go off the ground with sparks.

Police Officer Steven Heglar was alerted to a drive-by shooting involving a tan or gold Ford Explorer with Indiana plates. Around 9:00 p.m., Heglar saw the suspect vehicle and initiated a traffic stop. The driver came to a halt, but did not turn off his engine. The spotlights on Heglars patrol car were illuminating the Explorer. Heglar ordered the driver out of the car. Instead of complying, the driver pulled into the parking lot of a nearby apartment complex and stopped. Heglar drove up right behind the Explorer and got ready to ram it. His spotlights were still on. Then the driver jumped out of the Explorer. Heglar could see he was wearing a dark jacket and holding a Baretta semiautomatic handgun. The driver fled on foot. Heglar chased him, but couldnt catch him.

Edward Robertson testified he was inside his apartment bedroom that night when he heard a loud commotion as if somebody were running up the stairs. Robertson went into his living room and saw Ortiz, whom he did not know, closing Robertsons front door. Ortiz fled, leaving behind a blue jacket. Shortly thereafter, Ortiz was found hiding on an apartment staircase. When the police extracted him with a K-9 unit, Ortiz was in his underwear and without his shoes. Heglar went to the arrest location and identified Ortiz as the person who had jumped out of the Explorer with a Baretta in his hand. The Baretta was never found.

On the day after the shooting, Detective Tanya Bowie spoke to Norma and Jackie when they came to the police station to retrieve the Explorer. Norma described her confrontation with Ortiz at Ralphs. Norma said that when she told Ortiz to leave them alone, he yelled out, Im going to kill you. Norma drove Jackie and Eric home and, as they were walking toward the apartment complex, Ortiz showed up and started shooting.

Detective Bowie also interviewed Donovan the day after the shooting. Donovan said he saw an Explorer drive up to his apartment complex and the individual driving fired three rounds toward the building and three rounds up in the air.

At trial, both Antonio and Donovan recanted their police statements. Donovan testified he came home from the park by himself, saw Antonio standing outside the apartment complex talking to someone, and went up to his parents apartment. His mother was there and Donovan stayed with her for a while. Donovan was still inside the apartment when he heard gunshots. He did not go back out until after the shooting had stopped. Donovan said he was scared about having to testify.

Antonio testified he had been standing in front of the apartment complex talking with a friend when he saw Donovan coming home from the park. Antonio saw an Explorer stop in front of the apartment complex, but he never saw the driver. He heard two volleys consisting of three shots each, but he did not see where the shots had come from. Antonio testified that by the time the shots were fired, Donovan had already gone up to their apartment. Antonio denied having told police he saw the driver of the Explorer fire three shots toward the apartment complex. Like his son, Antonio indicated he was an unwilling witness.

2. Defense evidence.

Two shell casings were found in the street after the shooting. A ballistics expert testified the casings were from 9 millimeter bullets that could have been fired from a Baretta, but not from several other 9 millimeter guns.^[4] The expert also testified that, when he examined the gates, walls and stairs at Normas apartment complex seven months after the shooting, he did not find any gunshot damage.

Diane Santiago lived at the apartment complex where Ortiz abandoned the Explorer before fleeing on foot. On the night of the shooting, Santiago saw an Explorer drive into the parking lot very fast. The driver was talking on a cell phone, which he dropped when he jumped out of the vehicle and ran off. Santiago did not see anything else in the drivers hands. Seconds later, the police arrived. Santiago identified Ortiz as the driver and testified she had seen him around the apartment complex before.

Jackie and Ortiz were still together at the time of trial. Jackie testified that when she got off work she saw Norma talking to Ortiz in the Ralphs parking lot. Ortiz asked to speak to Jackie, but she refused. When they got back to the apartment complex, Jackie, Norma and Eric walked to the security gate. Ortiz drove up and said, Let me talk to you. When Jackie did not respond, Ortiz said, Fuck you then, bitch. Jackie, Norma and Eric kept walking. They went up the stairs and just as Jackie was opening the apartment door she heard three gunshots. Norma shoved her into the apartment. Jackie was sitting on Normas couch when she heard a second set of shots. Jackie testified she did not hear Ortiz threaten Norma.

Ortiz testified in his own defense. The woman in his car that morning was just a friend. When he arrived at the Ralphs store, he argued with Norma, but he did not threaten her: [Norma] just tells me, What are you doing here? Didnt you do enough damage already? I wish you would leave her alone for good so she could find herself a better man, And Im like, Come on, Norma, its not going to happen and you know that. She just said, Well, if I have the power to do it, Im going to do it.  When Jackie came out of Ralphs, she refused to speak to Ortiz.

Ortiz testified he drove to Normas apartment complex because he wanted to talk to Jackie. He denied threatening Norma there. Ortiz testified that as he drove up, Jackie, Norma and Eric were crossing the street. He stopped to let them cross. He thought Jackie was going to come over and speak to him, but she just kept walking toward the security gate. She only glanced over at him and said, No, just go. As Jackie, Norma and Eric were walking through the security gate, Ortiz heard three gunshots. He ducked down inside the Explorer and drove off. As he did he heard more gunshots. He drove to a friends house and used his friends phone to call Jackie and check if she was okay. Asked why he had not just used his cell phone as he drove away from the shooting scene, Ortiz testified he didnt have any minutes on it.

Later that night Ortiz was driving along when a police car started following him and then put on its flashing lights. Ortiz fled because he had an outstanding warrant for violating probation on a misdemeanor conviction. He denied having had a gun in his hand when he jumped out of the Explorer after Heglar stopped him. He denied having had a gun anytime that day.

3. Rebuttal evidence.

Detective Bowie testified that when she interviewed Norma, Jackie was standing right there but failed to contradict anything Norma said. Bowie also interviewed Jackie, whose statement corroborated Normas until the point at which the gunfire began. Jackie said she was already inside Normas apartment by the time the shooting started. Jackie said she heard six shots, but she did not see where they came from.

CONTENTIONS

1. The trial court erred by instructing the jury with CALJIC No. 8.66.1.

2. There was insufficient evidence to sustain the convictions for attempted murder.

3. The trial court erred by denying a new trial motion based on newly discovered evidence.

DISCUSSION

1. CALJIC No.  8.66.1 was properly given.

Ortiz was convicted of attempting to murder Norma and Eric. Ortiz contends the convictions must be reversed because the jury was given CALJIC No. 8.66.1, which contains an impermissible mandatory presumption allowing the jury to convict without finding he specifically intended to kill either victim. This claim is meritless.

The trial court instructed the jury with CALJIC No. 8.66.1 as follows: A person who primarily intends to kill one person may also concurrently intend to kill other persons within a particular zone of risk. This zone of risk is termed the kill zone. The intent is concurrent when the nature and the scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in that victims vicinity. [] Whether a perpetrator actually intended to kill the victim either as a primary target or as someone within the kill zone is an issue to be decided by you.

As our Supreme Court explained in People v. Bland (2002) 28 Cal.4th 313, 330: California cases that have affirmed convictions requiring the intent to kill persons other than the primary target can be considered kill zone cases even though they do not employ that term. In People v. Vang (2001) 87 Cal.App.4th 554, 563-565 . . . , the defendants shot at two occupied houses. The Court of Appeal affirmed attempted murder charges as to everyone in both houses 11 counts even though the defendants may have targeted only one person at each house. The jury drew a reasonable inference, in light of the placement of the shots, the number of shots, and the use of high-powered, wall-piercing weapons, that defendants harbored a specific intent to kill every living being within the residences they shot up. . . .  The fact they could not see all of their victims did not somehow negate their express malice or intent to kill as to those victims who were present and in harms way, but fortuitously were not killed. (Id. at pp. 563-564; see also People v. Gaither (1959) 173 Cal.App.2d 662, 666-667 . . . [defendant mailed poisoned candy to his wife; convictions for administering poison with intent to kill affirmed as to others who lived at the residence even if not the primary target].)

Ortiz acknowledges the legal principle that when a defendant shoots at one person in a group, the jury may infer an intent to kill others aside from the target, but he claims [t]he problem here is that the instruction explaining the proof of the intent element contained an impermissible presumption. Ortiz argues: CALJIC No. 8.66.1 as given here, was improperly phrased as a mandatory presumption; that is, the jury was told if it finds the predicate fact, that a second victim is within the kill zone, then the inferred fact has been proven. Specifically, CALJIC No. 8.66.1 told the jury that when a defendant intends to kill one person and there are others within the zone of danger, he conclusively intends to kill the others within that zone. (Italics added.)

We disagree. CALJIC No. 8.66.1 instructs that if it is reasonable to infer the defendant intended to kill a victim by killing everyone in the victims vicinity, then the defendant possessed a concurrent intent to kill the entire group of people, i.e., the primary victim as well as the bystanders. The third sentence of the instruction stated, The intent is concurrent when the nature and the scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in that victims vicinity. This sentence does not direct the jury to infer concurrent intent merely because bystanders happened to be in the vicinity. Rather, it says that if the jury reasonably finds the perpetrator intended to kill a primary victim by means of killing everyone in the area, then the jury has found the perpetrator possessed a concurrent intent to kill both the primary victim and the bystanders. The third sentence of the instruction sets forth a definition, not a presumption. The fourth sentence confirms this by advising the jury: Whether a perpetrator actually intended to kill the victim either as a primary target or as someone within the kill zone is an issue to be decided by you.

As explained by People v. Bland, supra, 28 Cal.4th at p. 329: The conclusion that transferred intent does not apply to attempted murder still permits a person who shoots at a group of people to be punished for the actions towards everyone in the group even if that person primarily targeted only one of them. Concurrent intent exists  when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victims vicinity. For example, an assailant who places a bomb on a commercial airplane intending to harm a primary target on board ensures by this method of attack that all passengers will be killed. Similarly, consider a defendant who intends to kill A and, in order to ensure As death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire or an explosive device devastating enough to kill everyone in the group. The defendant has intentionally created a kill zone to ensure the death of his primary victim, and the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim. . . .  Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone.  (Id. at pp. 329-330, italics added.)

The trial court did not err by instructing the jury with CALJIC No. 8.66.1.

2. Sufficient evidence supported the attempted murder convictions.

Ortiz contends there was insufficient evidence to sustain his convictions for attempting to murder Norma and Eric. This claim is meritless.

a. Legal principles.

In assessing a claim of insufficiency of evidence, the reviewing courts task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence that is, evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.]  Although it is the duty of the jury 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 jury, not the appellate court[,] which must be convinced of the defendants guilt beyond a reasonable doubt.  If the circumstances reasonably justify the trier of facts 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. Rodriguez (1999) 20 Cal.4th 1, 11.)

Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder. [Citations.] (People v. Jones (1990) 51 Cal.3d 294, 314.)

b. Discussion.

Ortiz argues there was no evidence whatsoever he intended to kill Eric. As for Norma, Ortiz argues the evidence was insufficient because it only showed that one shot was fired at her feet and not directly at her [sic]. We disagree with both arguments.^[5]

(1) Intent to kill Norma.

There was evidence Ortiz twice threatened to kill Norma and that he shot at her moments after uttering the second threat. This evidence tended to show Ortiz acted with intent to kill when he fired the second volley of shots. (See People v. Rodriguez (1986) 42 Cal.3d 730, 757 [A defendants threat against the victim . . . is relevant to prove intent in a prosecution for murder.]; People v. Cartier (1960) 54 Cal.2d 300, 311 [Evidence tending to establish prior quarrels between a defendant and decedent and the making of threats by the former is properly admitted and is competent to show the motive and state of mind of the defendant.]; People v. Richmond (1991) 2 Cal.App.4th 610, 618 [threat to kill victim constitutes strong evidence of defendants intent to kill].)

That Ortizs bullets came no closer to hitting Norma than striking the staircase beneath her foot does not establish a less culpable state of mind. (See People v. Smith (2005) 37 Cal.4th 733, 742 [[T]he act of purposefully firing a lethal weapon at another human being at close range,[^[6]] without legal excuse, generally gives rise to an inference that the shooter acted with express malice. . . .  [T]hat the bullet misses its mark or fails to prove lethal [is not] dispositive the very act of firing a weapon  in a manner that could have inflicted a mortal wound had the bullet been on target  is sufficient to support an inference of intent to kill.].)

The evidence also showed Ortiz had a motive for wanting to kill Norma. [W]here motive is shown, such evidence will usually be probative of proof of intent to kill. (People v. Smith, supra, 37 Cal.4th at p. 742.) Although Ortiz testified he was not angry at Norma, the evidence showed he believed she was meddling in his relationship with Jackie with the aim of breaking them up. Indeed, in the very act of denying he was angry, Ortiz revealed his strong feelings when he gave this testimony: No, I wasnt angry at Norma. I wasnt angry or mad at Norma. You know, I was just a little frustrated because of the way she came at me telling me to leave her daughter alone, you know, and she didnt even know what was really going on between me and Jackie. But she always done that before. She always done that. She always got into it between us.^[7] (Italics added.)

Finally, there was substantial consciousness of guilt evidence. Ortiz fled from the scene of the shooting, and fled again when Officer Heglar tried to apprehend him. The evidence showed Ortiz managed to get rid of his gun as he outran Heglar, tried to hide in a strangers apartment, and tried to disguise his identity in order to escape the police dragnet. (See People v. Vu (2006) 143 Cal.App.4th 1009, 1030 [consciousness of guilt evidence includes attempt to hide after the crime]; People v. Haynes (1967) 253 Cal.App.2d 1060, 1065 [effort to hide or destroy evidence shows consciousness of guilt].)

In sum, there was overwhelming evidence Ortiz intended to kill Norma.

(2) Intent to kill Eric.

Ortiz argues the evidence of an intent to [kill Eric] was non-existent. The prosecutor essentially conceded as much to the trial court, and he never argued there was evidence of an intent to kill as to Eric. The prosecutor only argued that [Ortiz] was guilty of the attempted murder of Eric by virtue of the killing zone theory of CALJIC No. 8.66.1. Ortizs argument is unpersuasive because its factual and legal predicates are faulty.

As for the prosecutors supposed concession, Ortiz points to the following colloquy at the jury instruction conference regarding CALJIC No. 8.66.1: The Court: I take it the issue is the target was Jackie and actually Norma was there. [] [The prosecutor]: Or if it was Eric and Norma. Lets say the target is Norma, and Eric is right there. [] The Court: Yes, because I dont think you are arguing that the intent was to kill the child but hes there in the kill zone.  Commenting on this exchange, Ortiz argues: The prosecutor said nothing in response to the courts statement, thereby conceding to the court that it [sic] was not arguing there was an intent to kill Eric. Thus, the evidence was that [Ortiz] either had an intent to kill Jackie or Norma, and Eric was just there.

We disagree with this interpretation of the record.. The prosecution theory was always that Ortiz shot at, and intended to kill, Norma and Eric. That is what the information charged and that is what the prosecutor told the jury in an opening statement. In the colloquy cited by Ortiz, it appears the trial court meant the prosecution was not trying to prove Ortiz had a motive to kill Eric in the same way he had a motive to kill Norma and, therefore, the inference allowed by CALJIC No. 8.66.1 would properly be used to prove an intent to kill Eric. The prosecutor subsequently urged the jury to do just that, saying: So we know the attempt [sic] murder of Norma has occurred. An issue for you, though, is going to be whether or not there is actually a second attempt murder as to . . . [Eric]. 8.66.1 deals with that. Remember, she said shes holding him going up the stairs, grabbing him. [] . . . [] The intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in that victims vicinity. [] Thats what we have here. So there has been a second [degree] attempt murder thats been committed on Eric. As discussed above, in section 1 of this Discussion, the inference allowed by CALJIC No. 8.66.1 is merely a method for proving intent to kill.

The evidence showed Ortiz fired a semiautomatic handgun three times at Norma and Eric as they were going up the stairs. Witnesses described these gunshots as a single volley, suggesting they were fired in quick succession. At least one of the bullets came extremely close to hitting Norma, and thus presumably might have hit Eric because he was right at her side. Given Ortizs obvious intent to kill Norma, the jury could have reasonably concluded Ortiz intended to kill her by killing Eric too.^[8] (See People v. Bland, supra, 28 Cal.4th at p. 330 [killing zone hypothetically created if defendant shoots at group that includes primary target with fire power devastating enough to kill everyone in the group]; People v. Vang, supra, 87 Cal.App.4th at pp. 563-564 [The jury drew a reasonable inference, in light of the placement of the shots, the number of shots, and the use of high-powered, wall-piercing weapons, that defendants harbored a specific intent to kill every living being within the residences they shot up.].)

There was sufficient evidence to sustain both attempted murder convictions.

3. Trial court did not err by denying a new trial motion.

Ortiz contends the trial court erred by denying a motion for new trial based on his claim of newly discovered evidence. The alleged new evidence was Donovans post-trial claim that Norma bribed him to falsely tell the police he had witnessed the shooting. This claim is meritless.

a. Legal principles.

A defendant is entitled to a new trial on grounds of newly discovered evidence only if the evidence is: newly discovered; not merely cumulative; such as to render a different result probable on retrial; and, not reasonably available at trial. (People v.Martinez (1984) 36 Cal.3d 816, 821.) A motion for a new trial on newly discovered evidence is looked upon with disfavor, and unless a clear abuse of discretion is shown, a denial of the motion will not be interfered with on appeal. (People v.McDaniel (1976) 16 Cal.3d 156, 179.)

The trial court may consider the credibility as well as the materiality of the proffered new evidence in its determination of whether it would render a different result reasonably probable. (People v.Delgado (1993) 5 Cal.4th 312, 329.) A new trial motion should be granted when the newly discovered evidence contradicts the strongest evidence introduced against the defendant at trial. (Ibid.)

b. Testimony at the new trial hearing.

At the new trial motion evidentiary hearing, Donovan testified he came back from the park alone and went upstairs to his parents apartment, that he was still inside when the gunshots were fired,^[9]and that he did not leave the apartment until 10 or 15 minutes after the shooting stopped. When he left, he saw Norma standing by the door of her apartment. Norma asked if he had seen the shooting and Donovan said no. Norma said, Ill give you some money if you say you saw it. Donovan agreed and Norma gave him a $100 bill. According to Donovan, Norma told him to say he had seen Ortiz in a Ford Explorer shooting a gun in front of the apartment complex, that he had seen the shootings [sic] come out of the [car] window and shot into the air. When the police arrived and asked who had seen the shooting, Donovan said he had. Antonio was still inside the apartment and he did not come out until after Donovan had already started talking to the police. Donovan repeated what Norma had told him to say, except he did not say Ortiz was the gunman.

Antonio also testified at the evidentiary hearing. He was outside talking to some friends when he heard the gunshots. He did not see Donovan walk past just before the shooting. Antonio could not see where the shots came from. He did not see a tan Ford Explorer in the street when the shots went off. When Antonio went up to the apartment after the shooting, Donovan was there. Antonio left his apartment after the police arrived. He saw Donovan talking to a police officer. Antonio told the officer he had seen the same things Donovan had seen, even though he knew Donovan could not have seen anything. Antonio did this because they could have taken my son away. I was afraid the police would say something to me to take my son away.

The trial court denied the new trial motion, finding the new evidence would not make a different result on retrial probable because the testimony of the alleged bribe is implausible, the fact that Donovan didnt give the account he was paid $100 to give . . . , the fact that the impeaching testimony is consistent with the facts at trial. . . . [I]ts implausible that Donovan so quickly could have gotten down the details of the account. I think the only plausible explanation for why he was so detailed and corroborated by other testimony was that he saw what he saw.

c. Discussion.

Ortiz asserts [t]he trial courts determination that Donovans admission of the bribe was not credible because Norma did not have sufficient time before the police arrived to give him money [sic]^[10]was pure speculation. This argument appears to be grounded on Ortizs suggestion there was no evidence presented at trial as to how long it took the police to arrive at the scene, so there was nothing to support the prosecutors argument that Donovans testimony was not credible based on the theory that Norma had insufficient time to bribe Donovan. However, there was evidence at trial as to how long it took the police to arrive. Norma testified the police arrived 15 to 20 minutes after the shooting. Antonio testified that within 15 minutes of the shooting the police had arrived and were already interviewing witnesses. Officer Carranza testified he and his partner arrived within a couple minutes after hearing the report of the shooting.^[11] Thus, contrary to Ortizs assertion, the trial courts determination there had been insufficient time to prepare Donovans false story was not based on pure speculation.

We agree with the trial courts conclusion it was implausible Donovan would have taken Normas $100 but then failed to tell police Ortiz was the gunman. We also agree it strains credibility to believe Donovan made up details about a shooting he never saw, details which turned out to be accurate. For instance, Donovan claimed that when he testified at trial he had seen Norma and Eric, but not Jackie, run into the apartment after the shots were fired, he simply invented those details. We agree with the trial court it is more plausible Donovan had actually witnessed the shooting than that he had made up such a specific accurate detail.

Antonios testimony at the evidentiary hearing, which was supposed to corroborate Donovans story about the bribe, also lacked credibility. Antonios testimony contradicted not only his police statement, but even his own trial testimony. For instance, Antonio testified he was outside when the shots were fired, but he did not see where they came from. To explain away his having given police a description of the gunman, Antonio testified he was simply repeating the story he heard Donovan give to the police. But it appears Officer Carranza interviewed Antonio before he interviewed Donovan, not the other way around.^[12] Antonio claimed at the evidentiary hearing he did not see a Ford Explorer in the street or Donovan walk past on his way up to the apartment. Antonio also claimed his trial testimony had been truthful, yet both these assertions were contradicted by his trial testimony.

Given the trial courts authority to consider the credibility of the proffered new evidence (People v. Delgado, supra, 5 Cal.4th at p. 329), the trial court would have been justified in discounting Donovan and Antonios testimony at the evidentiary hearing.

Ortiz argues the credibility of Donovans bribe story was bolstered because of the following exchange at trial. The prosecutor asked if it was true Donovan told police the night of the shooting that he had seen a Hispanic man in a tan car, to which Donovan answered Yes, thats what the lady said, thats what I told them. Donovan glosses this exchange by asserting, As Donovan testified at the [evidentiary] hearing, he told the police what Norma told him to say. But not only is there no indication Norma was the lady being referred to,^[13]there is no indication Donovan was repeating what this unknown woman told him to say as opposed to simply repeating what he heard her say. Moreover, the trial court was aware that at some point Donovan told a defense investigator that the story he gave police was just something he overheard a man say on a cell phone the night of the shooting. Given the inconclusive nature of the colloquy cited by Ortiz, it does not demonstrate the trial court abused its discretion by denying the new trial motion.

Ortiz complains there was no real physical evidence identifying him as the gunman. But the shell casings found at the shooting scene, casings which the defense expert testified could have been fired from a Baretta, were physical evidence. Officer Heglar testified he saw Ortiz jump out of the Explorer with a Baretta gun in his hand just hours after the shooting. Ortiz asserts Heglars testimony was contradicted by Ms. Santiago who said she saw a telephone in [Ortizs] hand as he ran from the car, which was corroborated by [Jackies] testimony about the cell phone found in the [Explorer] after it had been impounded. But Ortiz is forgetting it was he himself who effectively demolished Santiagos otherwise exculpating evidence when he testified the reason he did not use his cell phone to contact Jackie right after the shooting was because he did not have any minutes left. As the prosecutor argued to the jury, Ortizs own testimony showed Santiago was mistaken about having seen Ortiz talking on a cell phone.^[14] Hence, Heglars testimony that he saw Ortiz with a Baretta in his hand was, ultimately, undisputed. Contrary to Ortizs argument, there was very strong evidence he had done the shooting.

We cannot say the trial court abused its discretion when it denied Ortizs motion for a new trial. (See People v.McDaniel, supra, 16 Cal.3d at p. 179 [unless a clear abuse of discretion is shown, a denial of the [new trial] motion will not be interfered with on appeal.].)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

ALDRICH, J.

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^[1] All further statutory references are to the Penal Code unless otherwise specified.

^[2] The evidence set forth in this paragraph was part of Jackies testimony for the defense. It is given here for the sake of chronological continuity.

^[3] Q   Were you running upstairs? [] I was walking fast. [] Q   Where was Eric? [] A   I had him right beside me.

^[4] The defense expert testified, I believe [the casings] could have been fired by a Beretta. I dont believe they were fired in a Glock, a Smith & Wesson Sigma but other than that, I wouldnt say they could not have been fired from a Baretta.

^[5] Ortizs reliance on People v. Ratliff (1986) 41 Cal.3d 675,to support his argument with respect to Norma is misplaced. Ratliff was an instructional error case, not a sufficiency of the evidence case. Moreover, the failure to tell the Ratliff jury that attempted murder requires a specific intent to kill was prejudicial because the shooting occurred during the commission of a robbery and it was unclear from the evidence whether the perpetrator intended to kill the victims or only wound them. (See id., at p. 695 [Although it seems clear that defendant had the intent to shoot and thus disable his victims, there was no further evidence of a specific intent to kill necessary to sustain an attempted murder conviction.].)

^[6] The record does not contain an estimate of the distance between Ortiz and the victims when he shot at them. However, Norma testified, [A]s I was going up the stairs, thats when one of [the shots] hit the step and things were flying, and one of her neighbors said, Just a little bit more and it would have killed you. Given Ortizs threat to kill Norma, this evidence tended to show Ortiz had fired within his weapons effective range.

^[7] In this regard, the prosecutor argued to the jury: Well, what is the motive here? It is anger. He is pissed. . . .  He gets caught with another woman earlier in the morning, but hes upset that not only wont his girlfriend, the mother of his children, talk to him . . . but hes also pissed that his mother-in-law is meddling in his affairs and telling him . . . to get lost. Thats whats going on here. Hes upset. [] There is every reason in the world to believe that that is the motive for this shooting.

^[8] During closing argument, defense counsel questioned the prosecutions killing zone/concurrent intent theory by arguing there were other bystanders besides Eric who had been in danger: The kill zone seems to be a rather expansive zone that night. I think we heard testimony from Norma there was all kinds of people [sic]. [] We know from . . . Antonio, that he was in the line of fire. . . .  Why isnt he a named victim in this case. [] There are all kinds of other people out there. Where are they? Kill zone. Thats a very broad zone. What does that mean? Somehow we got Eric, his four-year-old son, in there, and you have to decide on that. What does that mean? The People, however, were not required to charge Ortiz with every crime he may have committed. (See Dix v. Superior Court (1991) 53 Cal.3d 442, 451 [The prosecutor ordinarily has sole discretion to determine whom to charge, what charges to file and pursue, and what punishment to seek.].)

^[9] Donovans mother testified at the evidentiary hearing that he was with her in the apartment when the gunfire erupted, but the parties agreed her testimony was not newly discovered evidence.

^[10] The trial court concluded there was insufficient time for Donovan to have learned the story he was supposed to tell, not insufficient time for Norma to get the $100 bill. However, we take Ortizs argument to be that the trial courts stated reasoning was improperly based on speculation.

^[11] Carranza testified the radio call reported [s]hots fired and we were around the area so we responded and we were there within a couple minutes.

^[12] Carranza testified he interviewed Antonio in Spanish because Antonio initially spoke to him in Spanish. Carranza testified he interviewed Donovan in Spanish, assuming he didnt know English so I went directly to Spanish. [] . . . [] Q   What did Donovan tell you that he had just seen occur? [] A   He told me exactly the same thing his dad said, was when they were coming from the park, a tan Explorer drove by and stopped in front of the residence and fired six shots. It appears Carranza assumed that, just because the father spoke Spanish, so did the son. It also appears Antonio gave Carranza more details than Donovan did; Antonio described three shots fired into the air and three shots fired at the victims.

^[13] Donovan himself testified that, after the shooting, practically all the residents of the apartment complex had gone outside.

^[14] During closing argument, the prosecutor said: [Santiago] is certain [Ortiz is] talking on his cell phone. He gets off the phone, gets out of the vehicle, drops the cell phone back into the vehicle, then runs. And she is absolutely certain that he had nothing in his hands. . . .  [] But why do we know that shes wrong? . . .  [] First of all, by the defendants own words, whats he tell you about that cell phone? He didnt use it. Remember, he is so broken up about his girlfriend . . . why didnt he use the cell phone? He didnt have any minutes left so he cant use the cell phone.