(Super. Ct. No. FVA024527) APPEAL from a judgment of the Superior Court of San Bernardino County, Michael A. Knish, Commissioner. Affirmed. Laura G. Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant.
The opinion of the court was delivered by: Aaron, J.
CERTIFIED FOR PUBLICATION
Roberto Canas-Fuente (Canas) killed Fernando Morales, the boyfriend of appellant Perla Isabel Gonzalez (Perla), during a fight between Morales and Canas. Morales, along with Perla, his accomplice, ambushed Canas as he was picking up his daughter at a street corner. Canas at the time did not know either Morales or Perla.
During the fight, Morales pulled out a knife with a three- to four-inch blade, thrust it at Canas and cut him in the cheek. After Canas threw Morales to the ground, Morales got up and ran to Perla, who had been standing about 10 feet away, by her car, anxiously watching the fight. From her car, Perla grabbed a rifle she had brought to assault Canas, cocked it, pointed it at Canas and then handled it to Morales. Afraid for his life, Canas ran at Morales. During the struggle for the weapon, Canas was shot three times. Although wounded, Canas gained control of the rifle and a few seconds later shot and killed Morales, as Morales ran away.
Perla was tried and convicted on a provocative act murder theory of the attempted murder of Canas and of the first degree murder of Morales. She appeals.
FACTUAL AND PROCEDURAL BACKGROUND
Because Perla challenges the sufficiency of the evidence, we describe in detail the facts surrounding the killing.*fn1
Canas and his wife Joan Curiel were married but separated in May 2005. Curiel was living with Ricardo Gonzalez (Ricardo), Perla's brother. Also living with Curiel and Ricardo was the minor child of Curiel and Canas (daughter), Curiel's other children and Curiel's mother Rosalba Osguera-Alvarez (Osguera).
Canas and Curiel shared custody of their daughter. However, because Canas and Ricardo did not get along, Canas typically picked up his daughter at a prearranged location near Curiel's residence. Before the shooting, Canas and Ricardo had argued several times on the telephone and had at least one physical altercation outside of Curiel's home. Each blamed the other as the cause of their feud.
On the evening of May 21, 2005, Curiel called Canas, who worked as an emergency room technician, to arrange for treatment for Osguera. Curiel dropped Osguera off at the hospital where Canas worked. After Osguera returned home, Curiel and Ricardo began arguing over whether Curiel had lied to him about "partying" with Canas while Ricardo was away. During their argument, Canas called and spoke to Curiel. According to Ricardo, Canas bragged that he and Curiel had been intimate while Ricardo was in Mexico.*fn2 Canas understood Curiel to say she did not want Ricardo in the home and Canas could hear children screaming in the background. Concerned for his daughter, Canas immediately left work and drove to Curiel's residence.
When Canas arrived, Curiel was leaving the house with her children, including their daughter. Ricardo was not far behind. As Curiel drove off with the children, Ricardo got into his car and followed her; Canas in turn got back inside his car and followed Ricardo. Canas testified he pulled along side Ricardo, rolled down his window and yelled, "What the fuck are you thinking? The kids are in the car. Knock it off."*fn3 After Canas cut off Ricardo, Ricardo took off in the opposite direction of Curiel. Canas followed Ricardo to make sure Ricardo did not continue following Curiel and the children, then returned to Curiel's home and called the police. Ricardo also called the police.
Later that evening, after the police had left, Ricardo's mother Beatrice Gonzalez (Beatrice), Perla, Morales and Ricardo's brother Jorge Gonzalez (Jorge) met outside Curiel's home. Ricardo discussed what had happened with Canas earlier that evening. Beatrice argued with Curiel and told Curiel that her son did not need such problems. Perla told Curiel that if anything happened to Ricardo, they were going to "kick [Canas's] ass."
As they stood outside Curiel's home, Jorge testified that Canas continued to call the house and argue with Ricardo. Finally, Jorge answered the telephone and agreed to fight Canas a short distance from Curiel's house. Jorge, his friend, Perla and Morales all drove to a nearby street corner and waited about 20 minutes for Canas to arrive. Jorge testified that Morales had a "B.B. gun" rifle in the car and that Morales shot it out the car window while they waited for Canas. When Canas failed to show, the group went back to Curiel's house and everyone left for the night.
The next morning, Perla went to Jorge's house. Perla told Jorge that Curiel had told her that Canas was going to be picking up his daughter and Perla wanted Jorge to come with her to intercept and "beat up" Canas because he was harassing Ricardo. Before Jorge left with Perla, Jorge grabbed a baseball bat. Jorge testified he intended to break Canas's car windows with the bat.
Perla and Jorge next went to pick up Morales. As Jorge walked around Perla's car, he saw a light brown rifle in the back. They all drove to Curiel's house. On the drive over, Jorge told Morales that Jorge was going to fight with Canas and break Canas's car windows with the bat. Morales agreed to help Jorge if Canas got the upper hand in the fight.
Jorge knocked on the front door of Curiel's house and asked to speak with his brother Ricardo. While he was waiting at the door, he saw Canas's daughter and knew Canas had not picked her up yet. Jorge left the house and walked back to the car, where Perla and Morales waited. They next drove to the intersection near Curiel's house where they had waited for Canas the night before.
After waiting at the intersection for a time, they decided to leave. However, Perla's car would not start. Jorge alone started running back to Curiel's house to get help while Perla and Morales waited at the car. As Jorge ran, he passed Osguera, who was walking Canas's young daughter to the street corner to meet Canas. Another of Curiel's children (minor) followed behind Osguera and Canas's daughter.
Minor, who was 15 years old at the time of trial and 13 years old at the time of the killing, testified she passed Jorge who was quickly walking in the opposite direction, toward Curiel's home. Minor caught up with Osguera and Canas's daughter, and saw Morales, whom she knew, further down the road under the hood of the car. Minor also saw Perla. Minor testified she and Osguera were waiting for Canas to tell him to leave with his daughter because Morales and Perla were there waiting for him and minor knew that Canas and Ricardo had argued the night before. Osguera testified Perla approached her and told her to leave.
After about 10 minutes, Canas arrived at the intersection. Canas drove past Perla's broken-down car and stopped near where Osguera, his daughter and minor waited. Canas opened his driver side door and beckoned Osguera to approach. Osguera hastily approached Canas and told him to take his daughter and leave. At the same time, Morales--who Canas did not then know--approached Canas and said, "Hey, puto, I heard you had a problem." Canas initially thought Morales was joking. Canas saw Perla, who he also did not know at the time, standing near the trunk of her car, staring at him about 10 feet away. Canas told Osguera to get his daughter in the car and leave just as Morales started throwing punches. Osguera drove off in Canas's car with his daughter.
Canas started to throw punches back at Morales. Canas next saw Morales pull a three- to four-inch knife from his waistband, raise it near his ear and point it at Canas. Morales then lunged at Canas and cut Canas on the left side of his face. Morales came at Canas again with the knife. Canas ducked, grabbed Morales's legs, lifted him up and slammed him to the ground on his back. Morales quickly got up and ran towards Perla. Canas saw Perla move to the passenger side of the car, reach inside and meet Morales near the trunk with a "rifle type weapon" in her hand. Before Perla handed the rifle to Morales, Canas saw her "cock it" by pulling back the hammer of the gun. Perla also pointed the rifle at Canas.*fn4
Scared for his life, Canas ran at Morales. During the struggle, the rifle discharged multiple times and Canas suffered three gun shot wounds. Canas wrestled the rifle away from Morales, who got up and began to run away. Perla also began to run. Afraid both Morales and Perla intended to do him more harm, Canas pointed the rifle at Morales and fired. Morales buckled and fell face down on the ground.
Canas testified he shot in the direction of Morales about five to ten seconds after he gained control of the rifle. Canas could not tell whether the shots were hitting Morales until he fell to the sidewalk. Canas fired the rifle at least three times until it ran out of ammunition.
Canas went to Morales to make sure he did not have any additional weapons on him. Canas next looked for Perla because he was afraid she still intended to harm him. Canas saw Curiel drive up in her car, start screaming and leave. Canas still did not know his attackers or why they attacked him. Canas also saw minor standing by an unoccupied car.
About a minute or two later, Canas saw Curiel drive up again. This time, however, a brown car driven by Ricardo was following closely behind Curiel. Canas saw Perla and an unidentified man, later determined to be Jorge, riding in Curiel's car. Still concerned he would be attacked, Canas spied Perla as she got out of the car and approached Morales. Perla started screaming at Canas for help. Still holding the rifle, which was out of ammunition, Canas responded, "You are kidding me; right? He just tried to kill me. You want me to help you? . . . You deal with it." Perla dragged Morales to Curiel's car, put him inside and they transported him to the hospital.
Morales died from multiple gunshot wounds. One bullet entered his right chest and lodged in the chest cavity; one bullet entered his right back side and exited his stomach; and one bullet entered to the right of his back midline, severed his spinal cord and lodged in his vertebrae.
When police arrived at the scene, they confiscated a .22 semi-automatic rifle with a magazine capacity of 14. Police found several expended .22 long-rifle shells casings and a pocket knife, with the blade closed, in the street. Police also found a baseball bat in Perla's car and a "bullet strike" in a newly constructed building near the crime scene. Inside Perla's car, police found a roll of red duct tape that matched the red "X" on the back of her car's rear license plate, ostensibly put there to obscure the plate number.
Beatrice, the mother of Ricardo, Jorge and Perla, testified Ricardo called her the night before the killing in an agitated state and informed her that while driving Canas had followed him in his car. Beatrice in turn called Jorge and Perla. That evening, they all met outside Curiel's home. Ricardo talked about another incident involving Canas, where Ricardo claimed Canas had struck him and then thrown him into the bushes. Perla was upset by Canas's alleged mistreatment of her brother and told Ricardo that if Canas ever struck him again, "they" would beat up Canas.
Marlen Morales, the sister of Morales, testified she was a "little" angry with Perla over the death of her brother. About four to eight days after he was killed, Marlen and her other brother went to the location of the shooting and discovered a "pointy" knife. She testified the knife had a black handle, was about 10 inches long, and was a "little dirty." She kicked the knife into a "bush area" because, she testified, she did not want her other brother to see it and suffer more. Marlen had no explanation why she neglected to tell the detective investigating her brother's murder, during an interview about eight days after his death, about this knife.
Canas testified he had no weapons in his possession, including a knife, the day Morales attacked him. Canas also testified he no weapons in his car, he did not see the knife described by Marlen at the crime scene or in anyone else's possession, and the only knife he saw on the day of the killing was the one Morales had that was shorter than the one described by Marlen.
D. Charges and Conviction
Perla was charged with attempted premeditated and deliberate murder (Pen. Code,*fn5 §§ 664, 197 [count 1]) and murder (§ 187 [count 2]). It was further alleged that Perla personally used, and personally and intentionally discharged, a firearm in the ...