The opinion of the court was delivered by: Duffy, J.
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A jury convicted defendant Willie Edward Moore, Jr., of crimes arising from his efforts to wound or kill two men at a predawn party. He claims that the trial court erred in admitting certain evidence. We will affirm the judgment. In a separate discussion, we will deny the habeas corpus petition and accompany the denial with a speaking order stating reasons.
PROCEDURAL BACKGROUND AND FACTS
The jury convicted defendant of one count of attempted murder (Pen. Code, §§ 187, 664, subd. (a))*fn1 and two counts of assault with a semiautomatic firearm (§ 245, subd. (b)). It found true an allegation that the attempted murder was in the first degree because it was willful, premeditated and deliberate. (See § 189.) It found true a section 12022.53, subdivision (d), firearm-use allegation on count one, a section 12022.5, subdivision (a), firearm-use allegation on counts two and three, and a section 12022.7, subdivision (a), great bodily injury allegation for each count. Counts one and two involved Anthony Fairbanks as the victim; for count three, the victim was Sharvis Mitchell. The trial court sentenced defendant to life imprisonment with the possibility of parole, 25 years' to life imprisonment, and 19 years' imprisonment, each term to be served consecutively.
Two groups of men converged on an apartment on Gilchrist Drive in San Jose for a party that began in the predawn hours of April 5, 2009, a Sunday. Although some witnesses testified that the partiers were amicable, other evidence pointed to rivalries over women and status that emerged between the two groups. Around dawn defendant shot two members of the other group.
Specifically, several of the men were interested in some of the women in attendance at the party and tensions arose. Defendant engaged in a rapping competition, a type of music performance contest, with Anthony Fairbanks, who had arrived with the other group. Fairbanks won the audience's applause. A member of defendant's group sparred with another member of the other group, Sharvis Mitchell, over who was entitled to sit in a chair next to one of the women. About six a.m. defendant shot Fairbanks and Mitchell inside the apartment, then chased Fairbanks down Gilchrist Drive. Defendant caught up to Fairbanks and pistol-whipped him, stabbed him, and railed at him. Defendant also took another shot at Fairbanks as Fairbanks reached his car, but it missed. The police were not able to recover the gun.
At trial and in pretrial photographic lineups, both Mitchell and Fairbanks unequivocally identified defendant as the gunman.
After shooting Fairbanks and Mitchell, defendant drove to the Central Valley. At 8:09 a.m. he was near the San Joaquin County city of Lathrop, according to cell phone records, and called his cousin Robbie Hampton, Hampton is a garbage collector who works in Santa Clara County but he lives in the city of Manteca, near Lathrop. About 8:30 a.m. defendant arrived at Hampton's residence. His visit lasted for a few minutes. Hampton testified that defendant was acting normally and "didn't look . . . bothered or anything."
Defendant testified on his own behalf. He denied shooting either victim and did not understand their identifications of him. He left the party about 4:15 a.m. and was elsewhere when the two men were shot. This was the case notwithstanding prosecution evidence, which defendant did not dispute, that placed his cell phone near Gilchrist Drive at the time of the shootings. When he went to Manteca, it was not to dispose of a gun and the clothing he had been wearing.
Gunshot residue was obtained from one of defendant's hands 39 hours after the shootings. Prosecution and defense witnesses agreed that residue found that long after the shootings could not be connected to the shootings with any reliability. The defense's expert witness testified that "most . . . studies indicate that gunshot residue is effectively lost somewhere between after six to eight hours . . . ."
In this first part, we address defendant's appeal. In the next, we will address his habeas corpus petition.
I. Admissibility of Photographic and In-court Identifications of Defendant
Before trial, defendant filed a motion seeking exclusion, essentially on federal due process grounds, of the victims' identifications of him from police-administered photographic lineups and any in-court identifications that might follow. He argued that the photographic lineups had suffered from "impermissible suggestiveness" and that this defect would taint any in-court identifications, because the ...