P. v. Villaneda

Filed 3/16/06 P. v. Villaneda CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge. (Retired judge of the Riverside Superior Court assigned by the Chief Justice pursuant to art. VI, § of the Cal. Const.) Affirmed in part; reversed in part with directions.

Sharon M. Jones, 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,

Ivy B. Fitzpatrick, and Charles Ragland, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Alfred Villaneda of first degree murder (Pen. Code,^[1] § 187, subd. (a)), during which he discharged a firearm proximately causing death (§ 12022.53, subd. (d)); four counts of felony preventing/dissuading a witness by threats (§ 136.1, subd. (c)(1); and one count of misdemeanor attempted preventing/dissuading a witness (§ 136.1, subd. (c)(2)). In bifurcated proceedings, Villaneda admitted having suffered four prior convictions for which he served prison terms. (§ 667.5, subd. (b).) He was sentenced to two 25-year-to-life terms, plus 19 years. He appeals, contending the trial court erred in granting the prosecutor's Wheeler^[2] motion, insufficient evidence supports five of his convictions, the trial court erroneously denied his motion for a new trial on the basis of prosecutorial interference with a defense witness, and jury instruction and sentencing error occurred. We reject all his contentions save some concerning sentencing error, and we reverse five of the sentences and remand for resentencing as to four of those with directions. Otherwise, we affirm.

Facts

Villaneda was a prolific communicator. In fact, he communicated his way into these convictions and sentence. He fatally shot a man in the alley adjacent to the home of Villaneda's brother's girlfriend, where Villaneda was then staying, either because the man was urinating in the alley, or because he was Black, or because Villaneda wanted to rob him. After being arrested for this killing, while Villaneda sat in jail, he wrote letters and had conversations with his brother, in which he threatened others to get them to tell stories about the shooting he had concocted and he appeared to try to pay off a witness. He attempted to get a fellow inmate, to whom he confessed to the shooting, to help him set someone else up for the crime. More facts will be discussed as they are relevant to the issues raised.

Issues and Discussion

1. Granting the Prosecutor's Wheeler Motion

The victim was African-American. Villaneda is not. According to the prosecutor, there was evidence that Villaneda killed the victim because the latter was Black. The following colloquy occurred between a female African-American prospective juror and defense counsel during voir dire:

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