P. v. Pickles

Filed 8/15/06 P. v. Pickles CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

Codefendants Ronald Ragesh Prasad and Joshua Scott Pickles appeal from the judgment of conviction after a jury found them guilty as charged of second degree robbery (Pen. Code, § 211; ct. 1),^[1] attempted murder (§ 664/187; ct. 2), second degree commercial burglary (§ 459; ct. 3), and assault with a firearm. (§ 245, subd. (a)(2); ct. 4.) The jury found the attempted murder was willful, deliberate, and premeditated. (§ 664, subd. (a) (hereafter § 664(a).) The jury also found true the enhancements alleged against Prasad for personally discharging and using a firearm and causing great bodily injury. (§§ 12022.5, subd. (a)(1), and 12022.53, subds. (c) and (d).) The court sentenced Prasad to a total prison term of 53 years to life plus an additional life term and sentenced Pickles to a total prison term of three years plus a consecutive term of life with the possibility of parole.

On appeal, Prasad challenges the sufficiency of the evidence of attempted murder and the finding it was willful, deliberate, and premeditated. He also contends imposition of two unstayed enhancement terms under section 12022.53, subdivision (d) violates statutory and constitutional prohibitions against double punishment.

Pickles challenges the sufficiency of the evidence of aiding and abetting and of premeditation. He also contends the trial court erred by denying his motion for acquittal on the question of premeditation (§ 1118.1), giving CALJIC No. 3.02 on aiding and abetting, denying his request to give instructions on the lesser included offenses of grand theft and petty theft, denying his motion to suppress the photographic lineup as impermissibly suggestive, denying his motion to exclude evidence of the burned car, and failing to give him sufficient custody credits. Additionally, he contends the evidence is insufficient to support the verdict for premeditated attempted murder and should be reduced to assault with a deadly weapon, and he was denied the effective assistance of counsel because counsel did not request an instruction on the defense of duress.

We find the trial court failed to give Pickles adequate custody credit and shall order that the abstract of judgment be amended to give him one additional day of credit. In all other respects, we shall affirm the judgments as to both defendants.

FACTUAL BACKGROUND

A. The Prosecution's Case

At approximately 5:00 p.m. on August 7, 2004, Harsha Rathod, the owner of Deboo's Indian Cuisine, located in Discovery Plaza on West El Camino and Truxel in Sacramento, was speaking with Surinder Kaur about selling her restaurant. Rathod's son, DeVandra (Deboo), and Kaur's daughter, Kulwinder Singh, were behind a curtain playing video games. While the two women were conversing, Prasad entered and asked if Ravi was there. Rathod told him Ravi was not there and Prasad left. Rathod recognized Prasad because he frequented her nearby tobacco store where he bought cigars from her.

Twenty minutes later, Prasad returned with defendant Pickles, who Rathod also recognized because he patronized her tobacco store on a daily basis. Both men were wearing hooded sweatshirts and Pickles was wearing gloves. Prasad pulled a rifle out from beneath his sweatshirt, told Rathod â€