Opinion
B162152.
10-29-2003
THE PEOPLE, Plaintiff and Respondent, v. MELINDA R. ROCHA, Defendant and Appellant.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc E. Turchin, Supervising Deputy Attorney General and Richard S. Moskowitz, Deputy Attorney General, for Plaintiff and Respondent.
After a jury trial, appellant Melinda R. Rocha was convicted of two counts of attempted murder (Pen. Code, §§ 664/187(a)), where the victims were 4-year-old Antonio Avalos (count 1) and Little Hill Gang member Francisco Avalos, Jr. (count 3), and one count of shooting at an inhabited dwelling (Pen. Code, § 246; count 5) The jury found true the allegations that those counts were committed for the benefit of a criminal street gang pursuant to Penal Code section 186.22(b)(1) (gang enhancement allegation); that count 3 was committed willfully, deliberately and with premeditation; and that as to counts 1 and 3 a principal personally and intentionally discharged a firearm pursuant to section 12022.53, subds. (b), (c), (d), (e), and (e)(1).
Appellants motion for acquittal as to count 2 (attempted murder of a young boy who was not wounded) was granted pursuant to Penal Code section 1118.1. The jury found her not guilty of count 4 (attempted murder of Uvaldo Mora) and count 6 (shooting at an unoccupied motor vehicle.) Further, the jury found not true the allegation as to count 1 that the attempted murder of Antonio Avalos was committed willfully, deliberately and with premeditation within the meaning of Penal Code section 664(a).
Unless otherwise indicated, all further statutory references are to the Penal Code.
All of the offenses arose from an incident in which appellant drove a white car down the block known to be the territory of a rival gang. Her passenger shot at a teenager from the rival gang, but the shot struck a four-year-old going to get his two-year-old brother. Shots were returned and the car drove away, perhaps stopping down the block where an occupant returned fire. Appellants defense was that she did not know the shooter was armed, was just driving him as a favor, and had no idea any violence was going to occur. Appellant was sentenced to 32 years to life in prison.
Appellant appeals from the judgment. We shall modify the judgment to award 198 days of actual time served plus 29 days of conduct credit and shall in all other respects affirm the judgment.
PROCEDURAL HISTORY AND STATEMENT OF FACTS
Rather than setting forth the evidence viewed in accordance with the usual rule of appellate review (People v. Thomas (1992) 2 Cal.4th 489, 514; People v. Johnson (1980) 26 Cal.3d 557, 575-578), we shall set forth separately the prosecutions case in chief because of appellants contention that the trial court erroneously denied her Penal Code section 1118.1 motion. However, to summarize the record as a whole, appellants own testimony put her at the wheel of her white car as she drove slowly down a street known to be the territory of the Little Hill gang, rival gang of her passenger and shooter Jorge Rivera, who belonged to the Townsmen gang. She then drove Jorge Rivera to a nearby Townsmen house and dropped him off. None of the rival Little Hill gang members, who returned fire, was hit. However, a four-year-old child was shot by the passenger in appellants car, which she painted another color soon after the shooting; she also attempted to disguise a bullet hole in the vehicle. Appellant was on probation for a drug offense, possession for sale, at the time of the shooting.
Appellant had a child with another member of the Townsmen gang, Raul Quezada.
Appellants principal defense was that she did not know that the shooter was armed or intended to shoot at his rival gang members. She had completed the Prototypes residential drug program, was employed at a local Holiday Inn, and was paying rent for her own small apartment. Her supervisor testified that she was an excellent worker, was requested as a waitress by patrons, and had a calming influence on those around her. The investigating officers did not contend that she was a gang member but did opine she was an "associate" of the Townsmen gang.
She also testified that her former boyfriend, Raul Quezada, arranged for twin sisters Maribel and Marisol Rivera, sisters of fellow Townsman Jorge Rivera, to stay in appellants one-room apartment without paying rent. When search and arrest warrants were executed at the apartment, drugs were found in appellants purse and a gun was found a common closet; Maribel Rivera told the police that both were hers, and Maribel was prosecuted and convicted for the drug offense.
Prosecution case in chief
The Townsmen and Little Hill gangs were rivals. On Sunday afternoon, March 17, 2002, members of the Little Hill gang were standing outside a residence on Glenthorne when a white car registered to appellant drove by slowly. A passenger in that white car shot at the Little Hill gang members, who returned fire. The prosecution witnesses were the adult occupants of the Glenthorne residence (Francisco Avalos, Sr.; his wife Maria Venegas; his daughter Claudia Venegas; and her boyfriend Wilmer Silva) as well as across-the-street neighbor Artemio Garcia, who was sitting inside his pickup truck when the shooting occurred, a truck driver whose vehicle was shot; and a woman visiting a friend on the street.
Francisco Avalos, Sr., testified he did not see anything until after the shooting and had been asleep when the shooting occurred. He identified a bullet hole in his garage door. His teenage son Francisco Javier Avalos, Jr., aka Yogi or Javier, was a Little Hill gang member who may or may not have been living at his fathers address. Javier was outside on the day of the shooting; he and his friend(s), dressed in gang attire, were the apparent target. He and his fellow Little Hill gang member Uvaldo Mora were identified by witnesses as outside the residence on the day of the shooting.
A pregnant Maria Venegas came home from church that Sunday, when her stepson Javier and some of his friends arrived. She sent her 4-year-old, Antonio, to pick up her 1½ —year-old, Eric, and ran for her children when she heard gunshots. Antonio was shot and required surgery, which led to infection.
His stepbrother Javier did not visit him in the hospital.
The neighbor saw the white car go by slowly and its occupants fire. Javiers friend, one of the two cholos by the house, shot back. The white car proceeded and someone from the white car began shooting back. Javier and his friend left in a second car. The neighbor saw that windows on a car parked near him were shot, with the rear window shattered. The neighbor thought the shattered glass was from shots from Javiers friend. At the preliminary hearing, unlike at trial, the neighbor testified that the white car stopped again two houses down.
The woman visiting her friend heard shots and saw the white car drive by. She denied telling an officer that she saw a person get out of the drivers side rear passenger seat, point a handgun in the direction of victims and fire shots at them; she did see three or four people in the car but did not know if they were men or women.
She also testified she never saw a female inside the vehicle. The deputy sheriff who interviewed her only days after the shooting testified she told him she saw the white car stop in the street in front of the location where the shooting occurred and a male Hispanic get out of the car and fire several rounds in the direction of the people in the house; she was shown a 6-pack and identified Jorge Rivera as looking just like the shooter. She also identified a photograph of the white car, although the 1994 Chevy Corsica in the photograph was a different color.
Claudia Avalos testified she was in the bedroom with her boyfriend and their baby when she heard shots, grabbed the baby, and rolled to the floor. She went outside and saw little Antonio bleeding. According to Claudia Avalos, about two weeks after the shooting, Maria Mendoza passed on a threat from "Pinky" (appellants nickname) at lunch while in high school. The message was that Pinky had called Mendoza and told her she knew who Claudia Avalos was and where she lived and that if Claudia Avalos came to court and said something about the shooting "that I saw her" that whenever appellant was going to come out, she was going to kill Claudia.
Her boyfriend testified they were all sleeping when the shots rang out and they ran outside. She told an interviewing deputy that she was sleeping when she heard gunshots.
Claudia Avalos testified she had never heard the name Pinky before but was scared by the threat and was afraid in court. She testified that Maria Mendoza told her she was scared too but had a baby and "didnt want no problems."
Claudia Avalos boyfriend, Wilmer Silva, lived with her in the Glenthorne residence, and verified that she told him about a threat to "do a job on her." He testified that on the day of the shooting he was sleeping and did not see Javier or Javiers friends but went outside and saw Antonio bleeding. Silva talked to the prosecutor only three days before testifying in court and related a conversation he testified he heard when taken into custody on March 26 on an unrelated marijuana offense.
However, Silva testified the threat came in a phone call she received because they thought she witnessed the shooting.
Jail records were produced that show Silva, appellant, and Maribel Rivera were all being booked during the same general time period at the Industry station.
According to Silva, about two weeks after the shooting while in custody, he overheard a conversation among three females about a shootout with some guy from Little Hill where one of their friends got away. One girl, identifying herself as Pinky, was talking about getting caught with a gun and drugs and, referring to guys from Little Hill, said "something about they wanted to go shoot at "Levas," a disparaging term. When Silva asked where she was from and told her he was from Little Hill, she replied with profanity and "Your brother-in-law [Yogi] was lucky that he didnt get shot." Silva returned the cursing because he was angry about little Antonio being shot. He told Pinky that they cant even shoot, that his little brother-in-law got shot and if they are going to do something, do it right, and do not go shoot an innocent child.
Silva identified Pinky as the "girl" who said she got caught with a gun and caught with drugs. He described her as 54" to 55", wearing pink panties and a shirt. Silva testified that all three females were dressed like gangsters and Pinky said she was "Pinky from Townsmen."
The booking information stated appellant was wearing long pants. Maribel Rivera, arrested for possession of the drugs found in appellants purse and a gun found in appellants closet, was wearing shorts.
In addition to those who heard and/or saw the shooting, other witnesses testified as to statements and/or threats allegedly made by appellant. Maria Mendoza, Jorge Riveras cousin, once was good friends with appellant, and was a friend of Claudia Avalos. Contrary to Claudia Avalos testimony, Mendoza denied calling Claudia Avalos and delivering a message from appellant telling Claudia not to go to court "because if you do go to court and testify in the trial against me, some day Ill kill you." Mendoza testified she had not heard or seen appellant in two years.
She gave a detective the same information when he questioned her about the alleged threat.
Mendoza identified a photograph taken from a camera found in appellants vehicle after the shooting. The photograph is of her cousin Jorge Rivera and appellant, with appellant driving the car and Jorge Rivera in the passenger seat of the car.
Finally, various law enforcement officers testified for the prosecution. Casings were found in the area. Witnesses were hesitant to talk to law enforcement and to testify.
Detective Steven Mills examined appellants car after a search warrant was executed. White paint showed under parts of the charcoal gray automobile. The detective noted that someone took a hammer to make the bullet hole in the rear license plate look smaller. In addition, he found a camera on the right rear floorboard, with a counter showing four photographs had been taken. When the photographs were developed, one apparently had been taken from the rear seat and showed appellant as the driver and Jorge Rivera in the passenger seat of the same car. A search of appellants residence revealed methamphetamine in her purse and a semiautomatic with two magazines and live rounds in a shoe box in the closet.
Appellant was not prosecuted for possession of drugs or the weapon found in her residence.
Detective Mills interviewed appellant in custody after advising her of her rights. Appellant was "very concerned about what was going on and cooperative." Although appellant admitted driving the car from which Townsmen Jorge Rivera shot, she told the detective she was afraid of the Townsmen; that Jorge Rivera was the brother of her roommate Maribel Rivera; and that her former boyfriend Raul Quezada (the Townsmen father of one of her children) expected her to drive his homeboys around. Mills conceded appellants tattoos are not associated with gang activity and that nothing in his records referred to her as a gang member or associate.
Mills testified that Raul Quezada was at the time of trial "probably not" an active member of Townsmen.
On the other hand, appellant admitted to the detective that her nickname was Pinky; the father of one of her babies was a Townsmen, and she knew that Little Hill controlled Glenthorne. Appellant told Mills that, at the request of her roommates brother, a Townsmen, she picked him up for a ride to Glenthorne, which she knew to be territory of rival Little Hill. She saw Little Hill guys standing out in the street and her passenger told her "there are those Levas" just before he removed a small black handgun, looked out the window, and fired several rounds at a Little Hill gang member standing outside the house as she drove slowly by.
As at trial, appellant told the detective she did not know he was going to shoot and was surprised when he did so; the Little Hill gang members shot back and she drove away, dropping her passenger off nearby at a "Townsmen house." She denied stopping either in front of the Little Hill house or closer to the corner to allow someone to get out of the car. Appellant admitted having the car worked on after the shooting, saying she was "scared because we used my car [for the shooting]," but apparently giving the detective a wrong name for the body shop. When she later read about the four-year-old being shot, she nevertheless did not report the shooting.
In Mills opinion, appellant was an associate of the Townsmen gang. He based his opinion on her participation in this drive-by shooting; her association with Townsmen gang members; and the fact that Raul Quezada, the father of her baby, is or was a Townsmen gang member. Moreover, this was about as "typical a drive by shooting as you can get." According to Mills, the objective of Townsmen driving down a street controlled by Little Hill and carrying a gun is to go down and shoot someone. He thought there was a shooting between these two gangs in the days leading to the March shooting, at the house on Northem where appellant dropped off Jorge Rivera. From the totality of circumstances, Mills opined that appellant knew there was going to be a shooting: She knew her passenger was a Townsmen and that the two gangs were at war. She knew the area she was driving into was Little Hills and a violent confrontation could took place. Nevertheless, she drove slowly by, dropped the shooter off at a house and did not report the crime even after learning a 4-year-old had been shot; she then had her car repainted and bullet holes covered up right after the shooting. She did not give the detective the name of the shooter, although identifying him as the brother of her roommate.
According to Mills, he had information that days prior to this shooting, Francisco Javier Avalos, Uvaldo Mora, and another Little Hill friend drove by the Northem address and shot a couple of rounds.
She pointed out "Sleepy," Jorge Riveras nickname, in the 6-pack.
Defense
Appellant testified in her own behalf. She explained her nickname Pinky was a family nickname and produced photographs as a young child with "Happy Birthday Pinky" and one signed "Love always, Pinky." She admitted having tattoos, but they were related to her family members, not to a gang.
She admitted her relationship with Raul Quezada, who was 29 years old when they met in 1998, and her knowledge that he had previously been in a gang. Soon after they met, he started going around his old gang member friends and physically abusing appellant; he was incarcerated off and on after that. When he was not incarcerated, he brought obvious gang members over and was clearly using drugs again.
She knew they were gang members because of their shaved heads and dress. Similarly, she knew Jorge was a gang member. She testified she never noticed various tattoos on his face, hands, wrists and arms.
Appellant admitted she was arrested in December 1999 for possession of drugs for sale. She pled no contest and entered the Prototypes residential rehabilitation program, which she says she successfully completed. She got a job working at the Holiday Inn in Ontario and moved into an apartment in November 2000. Quezada moved in soon thereafter and lived with her until April when he returned to prison. He would bring over friends and, according to appellant, brought Maribel and Marisol Rivera to be her roommates about two days before he returned to prison. Appellant paid the rent. By the time Quezada was paroled to her apartment in September, appellant had used her income tax refund to buy the Chevy Corsica later driven in the shooting.
No one from Prototypes testified on her behalf. The facility was not locked, and appellant got pregnant when there.
Living in appellants studio apartment with a kitchen were Marisol and her three young children, Maribel, their sister-in-law Maria, appellant, and appellants then 4-year-old child. Appellant gave birth to Quezadas child on June 23 and returned to work a month later, leaving both her children with Maribel, Marisol having moved out. According to appellant, Quezada wanted the Rivera sisters to keep an eye on appellant.
Because appellant had transportation, she was asked to assist others. Maribel Rivera asked her to pick up Maribels 17-year-old brother Jorge Rivera when he was released from juvenile hall in Malibu in February. Appellant did so, driving, with Jorge in the front passenger seat and Jorges mother and Maribel in the back seat. Appellant assumes the photo found in the camera was taken by Maribel that day.
Appellant drove people to the subject area three or four times before and was "pretty familiar" with those streets."
Appellant explained her participation on the day of the shooting in much the same way and testified it was the next time she saw Jorge Rivera. Maribel told appellant Jorge called and asked for a ride to La Puente; appellant had nothing to do that day so picked him up in Pomona and followed his directions to Glenthorne. Appellant did not know where she was dropping him off and could not tell he was armed. She admits knowing he was a gang member, but did not know he was going to shoot and was "like shocked" when she saw the gun. As she drove by, Jorge reached out the window and started firing at the men on the street; she did not stop and had no idea if anyone was struck.
Appellant cried on the stand describing her discovery that a 4-year-old had been shot.
Jorge put the small gun back in his pocket and instructed appellant to turn and take him to a house on Northem Street, where she dropped him off. She was not sure who fired first because her radio was too loud. Later, appellant saw she had a bullet hole in her trunk. She did not report the incident to law enforcement because Jorge was her roommates brother; appellants sons father is from the same gang and very violent; and "I didnt want to have no problem . . . ."
Appellant testified she was able to hear Jorge Riveras street directions but not the gunshots.
Appellant testified that while incarcerated Quezada called her mothers house and threatened appellant.
Appellant admitted having her car painted the next day but testified she had the appointment when she scratched the side of the car and took off the side mirror in February. There was no corroboration of the previous appointment. No one from the body shop appeared in court to testify.
As for the conversation overheard by Wilmer Silva, appellant testified she was wearing pajama pants, not shorts, when booked in the early morning of March 26. Maribel Rivera was wearing plaid boxer shorts and a white t-shirt and was much taller than appellant, who is 54". Two other females, including Maribel, were booked before appellant, who did not remember either getting in an argument or talking to someone; she specifically denied telling anyone she was a Townsmen gang member or ever describing herself as such. At the time of trial, appellant was pregnant by a man she had been dating when Quezada was incarcerated.
After hearing appellants testimony, Detective Mills in rebuttal testified that he believed appellant is an associate of the Townsmen gang. He reviewed her possession of narcotics for sale conviction from December 1999 and discovered she was associating with Tommy Machado, an active Townsmen gang member known as "Menace." Both were in front of an address known as the residence of two Townsmen gang members. In surrebuttal, appellant testified Machado was a friend of Raul Quezada and that day was the last time she saw Tommy; she was dropping off two ladies at that address.
Regarding her arrest on March 26, appellant denied the dope found in her purse was hers. She also denied knowing the firearm was at her place; she shared the closet with Maribel. She was on felony probation at the time of the shooting. Appellant denied calling Maria Mendoza and telling her to threaten Claudia Avalos, but emphasized that Quezada had the power to make things happen even when in custody.
Appellant testified she wanted to be a probation officer and took criminal justice classes at a local community college from September to December 2000. She did not explain how her probation officer would get her felony possession for drugs for sale reduced to a misdemeanor.
Justifying her cooperative and revealing interview with Detective Mills, appellant conceded she did not give Jorge Riveras name as the shooter. However, she did point out Sleepy in the 6-pack and said the shooter was Maribels brother; she believes she and Mills both knew who they were talking about without her saying his name.
Maria Castillo, the restaurant manger at the Holiday Inn who hired and supervised appellant, was called by the defense. Appellant worked five days a week, full time, for close to a year and a half, including maternity leave, and was a very good employee. Castillo described appellant as follows: "Very charming personality. She got along with everybody. [¶] In many cases I would say she was kind of a mediator. [¶] When other employees were kind of losing their temper, she would be like okay, while she was working there, she would calm everybody." Appellant was "Happy. Very smiley all the time." Appellant never lost her temper and a lot of the customers asked for her "because she was always ready to help and smiling."
The prosecution objected that Maria Castillos name had not been on the witness list that was supposed to be revealed 30 days prior to trial. Defense counsel thought it would not be a problem, especially since the prosecution had called witnesses unknown to the defense, including Maria Mendoza. The court ruled it would allow Maria Castillo to testify but would instruct the jury about the discovery obligation and that failure to comply can be considered in assessing the witnesss credibility. The giving of that instruction is one of the issues on appeal.
The court excluded the testimony of other proposed defense witnesses who had not been revealed to the prosecution. When Detective Mills was called by the defense, the court would not allow him to testify to Maribel Riveras admission that the drugs were hers, but did allow another deputy to do so. Initially rejecting Marisol Rivera as a witness, the court eventually allowed her to testify. But the court would not grant a continuance for the defense to bring in Maribel Rivera, who was under subpoena with a warrant outstanding.
Because appellant was such a good employee, Castillo accommodated her when she needed to change shifts from morning to a later shift for personal reasons.
Castillo knew appellant had been referred by the Prototype Rehab Center but did not ask the details. She was unaware about the search warrant or the narcotics or handgun found in appellants apartment; it would not change her opinion of appellants work but she would not imagine that to be the same person Castillo knew at work. Any reports that appellant was on probation for possessing narcotics for sale are inconsistent with the person Castillo knew.
The defense also called deputies who interviewed witnesses and assisted with the March 26 search warrant. Deputy Hinds, possibly initially misidentifying appellant in court as Maribel Rivera, testified that Maribel Rivera and not appellant took responsibility for the narcotics and gun found at appellants apartment during the search. Maribel said the gun was hers and told the deputy that appellant was just holding the narcotics for her.
Finally, Marisol Rivera was called. She and her nonidentical twin are about the same height and weight, 56" and almost 200 pounds. She testified that appellant went to pick up her brother Jorge from juvenile hall about 7 or 8 months ago. She stayed at appellants apartment for a whole week at the most; her sister stayed there with appellants permission.
The defense argued that Wilmer Silva described a larger person wearing underwear as the belligerent woman in custody who knew about the shooting. The prosecution argued in closing that this was an admission by silence if Maribel made the statements and appellant did not deny them.
CONTENTIONS ON APPEAL
Appellant contends: 1. The trial court erred when it failed to grant her Penal Code section 1118.1 motion on all counts or in the alternative the jurys verdict was against the weight of the evidence and her conviction violated her federal due process right to have the State prove guilt beyond a reasonable doubt. 2. The trial court erred when it failed to instruct the jury that appellant could not be subject to the increased penalty for deliberate, willful, premeditated attempted murder unless she personally premeditated the attempted murder. 3. Giving CALJIC No. 2.28 violated appellants Fifth, Sixth, and Fourteenth Amendment rights to present a defense; there were sanctions the court could have used which would not have undermined the weight of Ms. Castillos testimony for appellant. 4. The trial court incorrectly determined the number of appellants custody credits.
While arguing that Penal Code section 1237.1 requires the claim should first be made in the superior court, respondent recognizes that Divisions Two, Four, and Five of this district have construed the section to mean that if "there are other appellate issues to be decided, the appellate court may simply resolve the custody credits issue in the interest of economy." (People v. Jones (2000) 82 Cal.App.4th 485, 493.) Respondent then concedes that appellant, as she contends, is entitled to 198 days of actual time served, plus 29 days of conduct credit. Given that appellant personally told the court she had been incarcerated for 189 days, the People argue that the trial court did not err in assuming she was correct. As the People concede, however, appellant was not correct; we shall correct the mistake and order the appropriate credits.
DISCUSSION
1. The trial court did not err when it failed to grant appellants Penal Code section 1118.1 motion on all counts. Substantial evidence supports the judgment.
Appellant timely moved for a judgment of acquittal after the close of the prosecutions case in chief and claims the trial court erred in denying her motion as to counts 1, 3 and 5 (the attempted murders of 4-year-old Anotonio Avalos and Little Hill gang member Francisco Avalos, Jr. and the charge of shooting at an inhabited dwelling) as well as the gang enhancement allegation. "The standard applied by a trial court in ruling upon a motion for judgment of acquittal pursuant to section 1118.1 is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction, that is, `whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged. [Citations.]" (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13; accord People v. Cuevas (1995) 12 Cal.4th 252, 261.)
Appellant contends that the section 1118.1 motion should have been granted because the People failed to introduce evidence that appellant knew Jorge Rivera had a gun and intended to shoot it at the Glenthorne address. Thus, she did not have knowledge of the unlawful purpose of the perpetrator and could not be convicted of aiding and abetting the shooter. (People v. Beeman (1984) 35 Cal.3d 547, 561 ["a person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime."]) Rather than conforming to the requirements in Beeman, supra, according to appellant the People proved only two "nonprobative categories," 1) that appellant drove slowly by the location of rival gang members and perhaps stopped further down the street and 2) guilt by association with gang members. As for the gang enhancement, appellant again claims that the prosecution evidence showed solely her association with members of the Townsmen gang and no specific intent to promote further, or assist in any criminal conduct by gang members, as required by section 186.22, subd (b)(1).
Appellant contends that her association with Raul Quezada and the Riveras demonstrates she was "unknowingly used by the Riveras."
Appellant alternatively contends that the jurys verdict was against the weight of the evidence and her conviction violated her federal due process right to have the State prove guilt beyond a reasonable doubt.
We have detailed the testimony above and conclude both that the record as a whole constitutes substantial evidence to support the judgment and that the prosecutions evidence was sufficient to withstand the section 1118.1 motion.
2. The trial court did not err when it failed to instruct the jury that appellant could not be subject to the increased penalty for deliberate, willful, premeditated attempted murder unless she personally premeditated the attempted murder.
The jury found that the attempted murder in count 3 (Francisco Avalos, Jr.) was committed wilfully, deliberately and with premeditation but found not true the allegation that the attempted murder in count 1 (Antonio Avalos) was so committed. Appellant contends that, unless she personally premeditated the attempted murder, the charged allegation cannot be true and that the instructions as given permitted the jury to find the allegation true without the necessary finding of her personal premeditation.
The jury was instructed that in the attempted murder counts and the premeditated and gang allegations, "There must exist a union or joint operation of act or conduct and a certain specific intent in the mind of [the] perpetrator. Unless this specific intent exists, the crime or allegation to which it relates is not committed. [¶] The specific intent required is included in the definitions of the crimes or allegations set forth elsewhere in these instructions."
In discussing the allegations that crimes attempted in counts 1, 3 and 4 were "willful, deliberate and premedi[t]ated murder," the jury was told:
"`Willful means intentional. `Deliberate means formed or arrived at or determined upon as a result of careful thought and weighing of consideration for and against the proposed course of action. `Premeditated means considered beforehand.
"If you find that the attempted murder was preceded and accompanied by a clear deliberate intent to kill which was the result of deliberation and premeditation so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is attempt to kill willful, deliberate and premeditated murder."
After explaining the length of time versus the extent of reflection required, the court instructed: "To constitute willful, deliberate and premeditated attempted murder, a would be slayer must weigh and consider the question of killing and the reasons for and against such a choice and having in mind the consequences decides (sic) to kill and make a direct but uneffectual act to kill another human being."
Regarding allegations that a principal personally used a firearm, personally discharged a firearm, and personally discharged a firearm causing great bodily injury, the jury was told: "As to these allegations, it is not necessary that the People prove that the defendant personally discharged the weapon but rather it is sufficient if the proof shows that any principal in the underlying offense discharged a firearm." No such disclaimer was made as to the premeditation allegations. Appellant argues that the trial court should have sua sponte instructed the jury that she must have personally deliberated or premeditated.
After briefing was completed in the case at bench, our Supreme Court in People v. Lee (2003) 31 Cal.4th 613, 616 concluded that "[Penal Code] section 664(a) properly must be interpreted to require only that the murder attempted was willful, deliberate, and premeditated, but not to require that an attempted murderer personally acted willfully and with deliberation and premeditation, even if he or she is guilty as an aider and abettor." (Italics added; see also People v. Laster (1997) 52 Cal.App.4th 1450, 1473.) We are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Thus, there was no error in failing to give an instruction contrary to the ruling in Lee.
3. Giving CALJIC No. 2.28 regarding Ms. Castillos testimony did not prejudice appellant.
"On June 5, 1990, the electorate adopted Proposition 115, the `Crime Victims Justice Reform Act, which, inter alia, mandated reciprocal discovery in criminal matters. (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 363 [285 Cal.Rptr. 231, 815 P.2d 304].)" (People v. Edwards (1993) 17 Cal.App.4th 1248, 1259.) Californias reciprocal discovery law requires both sides in criminal cases, absent certain exceptions, to reveal their witnesses at least 30 days before trial. The defense in the case at bench disclosed most of its witnesses, including appellants supervisor, only two days before trial. Sanctions may be imposed for violation of discovery. (See Pen. Code,§ 1054.5.)
Penal Code section 1054.5 provides: "(a) No order requiring discovery shall be made in criminal cases except as provided in this chapter. This chapter shall be the only means by which the defendant may compel the disclosure or production of information from prosecuting attorneys, law enforcement agencies which investigated or prepared the case against the defendant, or any other persons or agencies which the prosecuting attorney or investigating agency may have employed to assist them in performing their duties.
"(b) Before a party may seek court enforcement of any of the disclosures required by this chapter, the party shall make an informal request of opposing counsel for the desired materials and information. If within 15 days the opposing counsel fails to provide the materials and information requested, the party may seek a court order. Upon a showing that a party has not complied with Section 1054.1 or 1054.3 and upon a showing that the moving party complied with the informal discovery procedure provided in this subdivision, a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure.
"(c) The court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted. The court shall not dismiss a charge pursuant to subdivision (b) unless required to do so by the Constitution of the United States." (Italics added.)
The court instructed the jury regarding the testimony of Maria Castillo, appellants supervisor at work, pursuant to CALJIC No. 2.28: "The prosecution and the defense are required to disclose to each other before a trial the evidence each intends to present at trial so as to promote the ascertainment of the truth, save court time and avoid any surprise which may arise during the course of the trial. Concealment of evidence or delay in the disclosure of evidence may deny a party a sufficient opportunity to subpoena necessary witnesses or produce evidence which may exist to rebut the non-compliant partys evidence.
"Disclosures of evidence are required to be made at least 30 days in advance of trial. Any new evidence discovered within 30 days of trial must be disclosed immediately. In this case, the Defendant concealed or failed to timely disclose the following evidence: The testimony of Maria Castillo.
"Although the Defendants concealment or failure to timely disclose evidence was without lawful justification, the Court has under the law permitted the production of this evidence during the trial.
"The weight and significance of any concealment or delay[ed] disclosure are matters for your consideration. However, you must ["should" in written CALJIC instructions] consider whether the concealed or untimely disclosed evidence pertains to a fact of importance, something trivial or subject matters already established by other credible evidence."
The oral instruction, cited in the text, varies only slightly from the written CALJIC instruction. The Use Note to CALJIC 2.28 states: "The committee has drafted this instruction to strictly conform to Penal Code § 1054.5, subdivision (b). There may be other sanctions or admonitions possible, but the committee believes that prudence dictates awaiting further appellate interpretation of this section and clarification."
Appellant contends that the trial court erred in giving CALJIC 2.28 and that that error was prejudicial. We disagree. Within constitutional limits, the trial court has a great deal of discretion in fashioning an appropriate sanction for discovery violations, ranging from preclusion of a nondisclosed witness (People v. Edwards, supra, 17 Cal.App.4th 1248, 1262-1266 [error but no prejudice in using the preclusion sanction]) to the much less drastic instruction given in the case at bench.
Witness Maria Castillo was a mostly favorable witness for the defense and bolstered her defense in giving credence to appellants testimony that she did not know the shooter was armed and contrary to Wilmer Silvas testimony about her belligerent attitude when in custody. Castillos testimony as an unrelated witness who exercised supervisorial authority over appellants workplace was very complimentary to appellants work habits and pleasant demeanor. On the other hand, as cross-examination revealed, she was completely unaware of appellants admitted criminal history or use of drugs.
The instruction as given allowed the jury to make a decision about the weight it would give to her testimony. This was not a severe sanction but was an appropriate and relatively minimal one in comparison to the other possible sanctions the court could have imposed under section 1054.5. We conclude the trial court did not abuse its discretion by instructing with CALJIC 2.28. Moreover, given the content of the instruction and the cross-examination of the witness, we find no prejudice from the trial courts giving of CALJIC 2.28.
4. The trial court incorrectly determined the number of appellants custody credits.
The trial court gave appellant credit for 189 days of actual custody and 28 days good time/work time. The People concede an error in the calculation and that appellant is entitled to 198 days of actual time served, plus 29 days of conduct credit, as requested by appellant.
DISPOSITION
The judgment is modified to award 198 days of actual time served plus 29 days of conduct credit. In all other respects, the judgment is affirmed.
We concur: RUBIN, J. and BOLAND, J.