P. v. Maldonado

Filed 1/22/07  P. v. Maldonado CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION ONE

            APPEAL from a judgment of the Superior Court of Los Angeles County, Charles L. Peven, Judge.  Affirmed in part and reversed in part with directions.

            Randy S. Kravis for Defendant and Appellant.

            Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth N. Sokoler and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

INTRODUCTION

            Defendant Rene Maldonado appeals from a judgment of conviction entered after a jury trial.  The jury found defendant guilty on two counts of attempted murder (Pen. Code, §§  187, 664).  It found true the allegations that the attempted murders were committed willfully, deliberately and with premeditation (id., §  664, subd. (a)), that a principal personally and intentionally used and discharged a firearm, a rifle, in the commission of the crimes (id., §  12022.53, subds. (b) & (e)(1), (c) & (e)(1)), and that the crimes were committed for the benefit of a criminal street gang (id., §  186.22, subd.  (b)(1)(C)).  The jury found untrue the allegations that a principal caused great bodily injury to one of the victims (id., §  12022.53, subds. (d) & (e)(1)), and that defendant personally used and discharged a firearm, a handgun, causing great bodily injury to one of the victims (id., §  12022.53, subds. (b), (c), & (d)).

            The jury also found defendant guilty on two counts of possession of a firearm, a rifle (count 3) and a handgun (count 4), by a felon (Pen. Code, §  12021, subd. (a)(1)).  It found true the allegations that these crimes were committed for the benefit of a criminal street gang (id., §  186.22, subd. (b)(1)(C)).

            Defendant admitted a prior conviction of a serious or violent felony (Pen. Code, §§  667, subds. (b)-(i), 1170.12).  As to each attempted murder count, the trial court sentenced him to 50 years to life, plus 20 years for the discharge of a firearm by a principal and 30 years for committing the crime for the benefit of a gang.  The court imposed concurrent terms for firearm possession, for a total state prison term of 100 years to life.

            On appeal, defendant challenges the sufficiency of the evidence as to count 3, he challenges certain evidentiary rulings, he claims ineffective assistance of counsel and he claims sentencing error.  We agree as to the insufficiency of the evidence to support defendant's conviction on count 3, and that there was sentencing error.  We disagree with the remainder of defendant's contentions.  We remand for resentencing.

FACTS

            At about 3:00 p.m. on June 1, 2003, Adam Smith (Smith) was driving his black Suburban on the 118 Freeway at the 210 Freeway interchange.  His girlfriend, Diana Magana (Magana), was riding with him.  A black Ford Explorer pulled alongside the driver's side of the Suburban, and two of its passengers began shooting into the Suburban.  Smith was hit in the stomach and the leg.  Smith swerved and hit the Explorer with his vehicle, causing the Explorer to roll over.  Smith then drove himself to the hospital, where he was treated for his wounds.

            Smith acknowledged that he was a member of the Pacoima 13 street gang.  He testified that he could not remember much about the incident except that he was shot twice, in his gut and his leg.  He remembered waking up in the hospital.  He also remembered talking to a detective at the hospital and looking at some photographs.  He did not remember talking to Los Angeles Police Detective Mario Santana.  He denied that there was a code among gang members that prohibited testifying in court.  He testified that he moved out of California because his employer transferred him, not because he feared for his safety.

            Detective Santana testified, however, that he spoke to Smith three days after the incident and thereafter.  Smith said that saw a black SUV with four men inside, one of whom was wearing a white tank top.  The SUV pulled up on the driver's side of his Suburban, and the two men in the back seat shot at him.  As the black SUV began to pass him, he swerved into it, causing it to roll over.  Smith told Detective Santana that he could not identify the shooters and would not tell the detective if he could identify them.

            Magana testified that Smith told her to get down.  She did so and heard a couple of gunshots, but she was unable to see anything.  She remained ducked down as Smith thereafter drove to the hospital.  She acknowledged being scared to testify but insisted that it was not because the crime was gang-related.

            However, Detective Santana testified that Magana told him that a black SUV with four men inside pulled up by the driver's side of the Suburban.  The black SUV then moved to the passenger side of the Suburban.  At some point, the occupants of the black SUV started shooting at the Suburban.  Smith swerved into the black SUV, causing it to roll over.  The four men left the SUV, one of them shooting at the Suburban as he did so.  Magana testified that she did not recall telling any of this to Detective Santana.  Magana was shown several pictures, including defendant's, but she was unable to identify any of them as being one of the four men in the SUV.

            Ramiro Rodriguez (Rodriguez) was driving on the 118 Freeway at the 210 Freeway interchange when he heard the sound of tires squealing behind him.  He looked in his rearview mirror and saw a Ford Explorer rolling over on the freeway.  He pulled over to call 911 and to see if he could help the occupants of the Explorer.  He saw four people walking away from the Explorer.  Three of them were wearing white tee shirts, and one was carrying what looked like a bat.  When he saw that they did not need help, he left.  He later went to a police station to report the incident.  He denied telling the police that the four people were male, two were wearing white tee shirts and two were wearing checkered shirts, and one was carrying what appeared to be a rifle.

            Los Angeles Police Officer Daniel Parra spoke to Rodriguez on the day of the shooting.  Rodriguez told him that he saw three men leave the Explorer.  One of the men was holding what appeared to be a rifle.  A fourth man then got out of the Explorer and joined them.  All four men had shaved heads.  Two were wearing white tee shirts and two were wearing checkered shirts.

            Richard Bankhead (Bankhead) was driving on the 118 Freeway when he saw an overturned Ford Explorer.  He also saw a pistol in the middle of the freeway.  He retrieved it, using a pen to pick it up.  He placed it in his car and waited for the police.

            Officers Howard Slack and Anna Stebbins of the Los Angeles County Police Department, Office of Public Safety, were driving on the 210 Freeway when they saw an overturned Ford Explorer on the 118 Freeway overpass.  They went to the scene of the accident to check for victims but found the Explorer empty.  Bankhead then approached the officers and directed them to the pistol in his car.  Officer Slack took possession of it, noting that the safety was off and the hammer was pulled back, so the gun was ready for firing.  He later gave the gun to the Los Angeles Police Department.

            Detective Santana responded to the scene and recovered shell casings and a broken magazine containing live rounds in the roadway.  He followed a trail of blood from the Ford Explorer to Gladstone Avenue, where he took a swab of the blood.  He discovered a bloody tee shirt underneath a part of the sidewalk that had been lifted up by a tree.

            Examination of Smith's Suburban revealed six bullet holes--five in the driver's side door and one in the right front fender.  A bullet was recovered from the door, and bullet fragments were recovered from inside the Suburban.

            An examination of the Explorer revealed a bloodstained eyeglass case inside the vehicle and blood in three different locations on the outside of the vehicle.  An identification card and other paperwork inside the vehicle bore defendant's name.

            DNA tests revealed that the blood from the eyeglass case, the    Explorer, and Gladstone Avenue matched defendant's.  The blood from the tee shirt was not a match.

            The pistol that Bankhead recovered was a 7.62 by 25-millimeter Tokarev semiautomatic.  The magazine and cartridges that Detective Santana recovered were 7.62 by 25-millimeter.  Three shell casings recovered by Detective Santana had been fired by the Tokarev, while one had not.  One of the bullet fragments found in the Suburban was not fired by the Tokarev.  It could not be determined whether the other bullet fragments or the bullet found in the door of the Suburban were fired by the Tokarev.

            Defendant's palm print was found on the Tokarev.  Fingerprints found on the Tokarev and on one of the cartridges were not his, however.

            Detective Santana arrested defendant on November 19, 2003.  When he asked defendant his name, defendant responded, â€