Super. Ct. No. 08CF3297 Appeal from a judgment of the Superior Court of Orange County, Glenda Sanders, Judge. Affirmed.
The opinion of the court was delivered by: O'leary, J.
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Eduardo Guillen appeals from a judgment after a jury convicted him of two counts of attempted murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a)),*fn1 shooting from a motor vehicle (§ 12034, subd. (c)), two counts of assault with a firearm (§ 245, subd. (a)(2)), possession of a firearm by a felon (§ 12021, subd. (a)(1)), and allegations of a strike prior (§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)), and a prior serious felony conviction were found to be true. He contends: (1) the trial court erred by denying his motion to dismiss; (2) the trial court abused its discretion by admitting his statements to police; (3) there was insufficient evidence to support his conviction; and (4) the trial court abused its discretion when it refused to strike his prior strike pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We reject his contentions and affirm the judgment.
Jorge Preciado and his brother-in-law, Juan Olivares, lived in Santa Ana with Preciado's family. On the day after Thanksgiving 2006, the family was having a party in the backyard of their home. Around 8:30 p.m., someone threw a beer bottle at the door in the block wall around the front of the house. The family went inside and Preciado woke Olivares. Preciado and Olivares went outside. After they had been outside for between five and 20 minutes, Preciado and Olivares saw a white Ford Bronco with a black camper shell driving along Richland Street approaching the house. Gunshots were fired at the men from the passenger side of the vehicle. Preciado and Olivares hid behind a truck and the Bronco drove off. They called the police.
Santa Ana Police Officer Nicole Quijas interviewed Preciado and Olivares at the scene. Both told her there were two men in the Bronco, both male Hispanics, between 20 and 30 years of age, with black shaved hair. The driver was described as medium build. The passenger, who was the shooter, was described as medium to heavy build. Both men described the passenger pulling a shotgun and firing, hitting the block wall and a parked vehicle. Both Preciado and Olivares told Quijas they had seen the vehicle in the area before and the owner lived in the area. Olivares told police he would be able to identify the driver if he saw him again.
A few days after the shooting Olivares saw the same white Ford Bronco with a black shell parked in front of Guillen's house. He wrote down the license plate number and gave it to the police. Detective Eric Paulson drove to the neighborhood and found the Ford Bronco. It was registered to Guillen's brother who was in custody at the time of the shooting. Paulson learned Guillen also lived at the residence.
Paulson created a six-pack photographic lineup that included Guillen's picture. He showed Olivares the six-pack and Olivares identified Guillen as the driver. Olivares also identified Guillen at trial as the driver. Olivares told Paulson, and testified at trial, he had seen Guillen many times (30 to 50) in the neighborhood prior to the shooting. Guillen lived a few blocks away, and Olivares would often see Guillen outside his house, but had never talked to him. Olivares frequently saw Guillen, with others, tagging in the neighborhood. Olivares told Paulson and testified about an incident that occurred months before the shooting where the block wall around the family's house was tagged by one person, while Guillen acted as the driver and look out. The family cleaned up the graffiti.
Over three months after the shooting, Paulson arrested Guillen. Paulson and another officer interviewed Guillen who waived his Miranda*fn2 rights. At the beginning of the interview, Paulson told Guillen he had been identified in an "incident" and they were there to get Guillen's side of the story. Guillen at first appeared unsure as to what the detectives were referring to. Guillen admitted he was using and paying insurance on the Ford Bronco while his brother was in custody.
During the interview, the officers did not mention the specific date of the incident they were investigating but mentioned holidays as points of reference. Paulson at first mentioned an incident occurring between Halloween and New Years, when Guillen's brother was in jail, but later narrowed it to a tagging incident that occurred "Halloween-ish [to] Thanksgiving." In response, Guillen described an incident where someone named Carlos (aka "Post-it"), came to his house and they went to buy alcohol. Guillen drove the Ford Bronco, and while en route, Carlos got out and walked on foot in front of the vehicle. Carlos began writing graffiti on a wall while Guillen was acting as lookout. Guillen threw a beer bottle from the vehicle. He heard loud gun shots from a rifle or shotgun, and Carlos ran back to the truck, saying they were being shot at. Carlos jumped in the truck and they fled.
Paulson changed the term he was using from "graffiti incident" to "shooting." When he did, Guillen responded by saying "'we never did no shootings, tagging is about all we've done; we've been shot at for that'" and "'there's never been a gun in my truck.'" Guillen said "we" before the detectives mentioned witnesses seeing two people in the white Ford Bronco at the time of the shooting. When Paulson said Guillen's story was different from what the witnesses reported, Guillen responded, "'I'm telling you, I was waiting in the alley, I heard shots, this guy comes running to the truck and then I left . . . ." When the detectives said perhaps Guillen was the one who shot the gun, Guillen denied shooting and said he was shot at.
At this point, Paulson asked Guillen if they were talking about the same night. Guillen said he described the only incident he had been involved where shots were fired. When the officers said they were talking about an incident where Guillen shot back, Guillen replied he was not present at "that incident." Paulson then asked if anyone else had been driving the truck on "the day of the incident," and Guillen answered that other people had driven his brother's truck in the past but not on the day of the shooting. Guillen "guessed" the time of the shooting in which he was involved was around 10 p.m., but the actual date of the shooting at Preciado and Olivares's house, the day after Thanksgiving, was not mentioned in the interview. During the interview Guillen never said "'we did [the shooting], but it was an accident'" but rather maintained he was shot at and he was not a shooter.
Paulson testified he did not narrow the time frame to the day after Thanksgiving because he thought he and Guillen were talking about the same incident given the similarities including: the general time frame, the same location, two shots being fired from a shot gun or rifle, a bottle being thrown, the same car, a witness's identification of Guillen as the driver, and Paulson's research into other reports of shots being fired in the area. Paulson testified he had researched 911 records regarding reports of shootings in the general area. He found three reports relating to the present incident. He found two reports about shots fired in late December 2006 one-eighth to one-quarter of a mile away from where this incident took place but found no reports of other shootings in the immediate area of Richland Street between October 31, 2006, and December 31, 2006.
Mary Downey testified that in late November 2006 Guillen and Javier Quintana did some general electric and other work for her at her home in Riverside. She could not remember the exact date.
Quintana testified that on November 24, 2006, he picked up Guillen after 12 p.m., and they went to Riverside to work for Downey. They worked there for at least an hour and a half after dark. Quintana drove Guillen back to Santa Ana and left him at his house. Guillen's girlfriend, Danielle Zavala, was waiting there for him. Quintana recalled that when he dropped Guillen off, Zavala was yelling and upset because they were supposed to go somewhere and Guillen was late.
Zavala testified that on November 24, 2006, she and Guillen were supposed to go out to dinner. Guillen did not arrive home from work until 9 or 9:30 p.m., so they were unable to go.
Dr. Mitchell Eisen testified as an expert on eyewitness identification. He explained about the impact of stress and trauma on memory and how the presence of a weapon can dominate a witness's attention. Eisen also testified about the suggestive nature of six-pack photographic lineups. He explained when only one picture in a photographic lineup matches the description of the witnesses then the six-pack is not effective. The witness expects ...