APPEAL from a judgment of the Superior Court of Los Angeles County,(Los Angeles County Super. Ct. No. MA043902) Hayden Zacky, Judge. ORIGINAL PROCEEDINGS; petition for a writ of habeas corpus.
The opinion of the court was delivered by: Suzukawa, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant Rodrigo Caballero appeals from the judgment entered following his conviction by jury of three counts of willful, deliberate, and premeditated attempted murder, with findings that he personally and intentionally discharged a firearm, inflicted great bodily injury upon one victim, and committed the crimes for the benefit of a criminal street gang. (Pen. Code, §§ 664/187, subd. (a), 664, subd. (a), 12022.53, subds. (b)-(d), 186.22, subd. (b)(1)(C).)*fn1 He was sentenced to 110 years to life in state prison. Caballero contends: (1) he was mentally incompetent to waive his right against self-incrimination; (2) the failure to conduct a competency hearing deprived him of due process; (3) he was denied effective assistance of counsel; (4) there was instructional error; and (5) his sentence constitutes cruel and unusual punishment. In the published portion of the opinion, we conclude his sentence passes constitutional muster. In the unpublished portion, we reject the remainder of defendant's claims. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On June 8, 2007, a petition pursuant to Welfare and Institutions Code section 602 was filed against defendant, charging him with three counts of willful, deliberate, and premeditated attempted murder and three counts of assault with a semi-automatic firearm. (§ 245, subd. (b).) The petition also contained gang and firearm allegations. The alleged incident took place two days earlier, on June 6. Although the record does not include the complete juvenile court file, we are able to determine from the register of actions page that on August 22, 2007, counsel for the parties and the court declared a doubt as to defendant's mental competence to proceed. Reports pursuant to Evidence Code section 730 were ordered.
Defendant was examined by two psychologists, Drs. Raymond Anderson and Haig Kojian. Dr. Anderson opined that defendant had "Schizophrenia, Paranoid Type," which caused him to be delusional. He concluded that defendant was incapable of cooperating with counsel, although he appeared "to be a rather intelligent minor who has chronically worked below his potential because of his disorder or the precursors of his disorder." Dr. Kojian was asked to determine whether defendant was competent to make the decision to waive his fitness hearing.*fn2 He found that defendant was not. Dr. Kojian concluded his report by writing, "Should an opinion regarding competence to stand trial in general be required, I would like to receive all of the prior evaluations, I would like to interview the minor again especially if he is placed on medication, and I would also like to receive the juvenile hall mental health record." On November 29, 2007, based on the reports and the stipulation of counsel, the juvenile court found defendant mentally incompetent and criminal proceedings were suspended.
At some point, the court ordered that defendant be reevaluated.*fn3 On June 25, 2008, Dr. Kojian reinterviewed defendant. Defendant told him that he was taking anti-psychotic medication and was no longer hearing voices as he had in the past. Defendant reported he was currently housed in general population. Dr. Kojian confirmed defendant had been given Risperdal to treat his schizophrenia. Dr. Kojian concluded that through the use of medication, defendant had regained competency to stand trial.
On July 11, 2008, Dr. Joseph Simpson spoke to defendant. Defendant told Dr. Simpson that he began experiencing auditory hallucinations shortly after his arrest in June 2007. He said he was currently taking Risperdal and the hallucinations had ceased. Defendant understood it was important to proceed with the fitness hearing, as the sentence in juvenile court would be less punitive. Dr. Simpson determined that defendant's schizophrenia was being successfully treated with medication and concluded defendant was competent to stand trial.
According to the register of actions page, on July 23, 2008, counsel submitted on the experts' reports and the court found defendant competent and reinstituted criminal proceedings. On November 4, 2008, defendant was found unfit to remain in juvenile court and the petition was dismissed.
A complaint was filed in adult court. A preliminary hearing was conducted, an information was filed, and trial commenced on May 28, 2009.
On June 6, 2007, at about 1:25 p.m., 14-year-old Jesse Banuelos was walking home from school with friends Mark Johnson and Adrian Bautista. Banuelos noticed two individuals who he believed were friends of Bautista's. Banuelos knew one of the friends was named Carlos. The five youths continued down the street together.
Banuelos and Johnson separated from the group to go to Johnson's house. The other three continued to walk ahead of Banuelos and started to turn the corner at 37th Street and Sunstream. Banuelos saw a young Hispanic male appear. The male yelled out, "Lancas," which Banuelos thought was the male's gang's name. Banuelos saw a black gun, heard three or four shots, and started running. He stopped to turn toward the area where he heard the gunshots. He saw someone fall to the ground. Banuelos returned to the corner after the shooting and realized it was Bautista who had fallen. Banuelos noticed that Bautista's back was bleeding. Banuelos said that Val Verde Park was a gang, and he believed Bautista was a member. He could not identify the person who fired the weapon.
Mark Johnson testified he was going home from school on the afternoon of June 6 in the company of Jesse Banuelos and Adrian Bautista. At some point, the group met up with two or three of Bautista's friends. Bautista and his friends walked ahead. Johnson heard three or four gunshots and ran. He returned to the area where he had last seen Bautista and his friends and saw Bautista on the ground. He did not know where Bautista's friends had gone. Johnson described the shooter as a male Hispanic. Johnson estimated the male was a couple of years older than he was (Johnson was 14 at the time of the incident). He could not identify the shooter.
On the day of the shooting, Carlos Vargas was in the company of Vincent Valle, Adrian Bautista, and two others. A male approached and began asking where they were from. The male yelled, "Lancas," and Vargas responded by shouting, "Val Verde." Vargas, Valle, and Bautista were members of the Val Verde Park gang and one of their rivals was the Lancas gang. The male opened fire and Bautista was shot in the back.
Although the shooter was approximately 20 feet away and Vargas had a clear view of him, the only description Vargas could provide at trial was that he was Hispanic and about 17 years old. Vargas denied that defendant looked familiar, that he knew defendant as "Dreamer," and that he was acquainted with anyone in the Lancas gang.
After the incident, Vargas was interviewed by Detective Robert Gillis at the scene. When asked by the prosecutor if he told the detective that he knew defendant and that defendant had shot at him, Vargas claimed he did not remember. After further questioning, Vargas acknowledged he told the detective that before shooting Dreamer got out of the car and yelled, "Vario Lancas." Vargas conceded that if he knew the identity of the shooter he would not say so because the gang code provides that a member does not snitch and snitches can be killed by other gang members. Vargas admitted and then denied that he selected defendant's picture from a photographic lineup and informed Detective Gillis that defendant was the shooter. On cross-examination, he said defendant was not the shooter.
Adrian Bautista confirmed that he, Jesse Banuelos, and Mark Johnson were walking home from school on the afternoon of June 6, 2007. They met up with Carlos Vargas and Vincent Valle, whom Bautista knew to be members of the Val Verde Park gang. Bautista said he was shot in the back and upper shoulder, but he did not know who shot him or where the shooter was located when he fired. He thought the shooter said "Lancas" before opening fire.
Bautista was asked a series of questions about an interview conducted by Detective Gillis. He did not remember looking at a number of photographs and telling Detective Gillis that none of the individuals depicted was the person who fired the gun. Nor could he recall circling a photograph of a male and identifying him as the shooter or stating the shooter drove up in a blue or green Toyota Celica. Bautista acknowledged he was a member of the Val Verde Park gang and gang members do not testify.
Vincent Valle stated that on June 6, 2007, he was with friends Carlos Vargas and Adrian Bautista and two others. Someone approached and shot towards the group. After Vargas told him the identity of the shooter, Valle realized that he recognized the shooter as someone he knew who was a friend of Valle's sister. That person had been to his house once before. Valle identified defendant as the individual who fired the gun at the group when shown photographs by Detective Gillis and before the jury. On cross-examination, Valle conceded that when he was initially questioned by a deputy at the scene he said that he was unable to identify the shooter.
Valle, who was a member of the Val Verde Park gang at the time of the shooting, said he got out of the gang a couple of weeks after the incident. He was aware that gangs retaliate against people who testify in court and expressed concerns for his safety.
On June 6, 2007, Los Angeles County Sheriff's Deputy Jason Jones was driving a patrol unit in the City of Palmdale. At approximately 1:30 p.m., he was flagged down by several people. Deputy Jones stopped and got out of his vehicle. He was informed that someone was lying on the grass in a nearby front yard. He walked to the yard and observed Bautista face down on the lawn and bleeding from an injury to his back. The deputy lifted Bautista's shirt and observed what appeared to be a bullet wound near his shoulder blade. Deputy Jones called for paramedics.
While waiting for them to arrive, Deputy Jones spoke to several witnesses in the area, including Carlos Vargas, Vincent Valle, Jesse Banuelos, and Mark Johnson. Banuelos said he saw a Hispanic male wearing black clothing emerge from an older model green Toyota Celica. The male approached Bautista and Vargas and asked them where they were from. The male said, "Lancas," and started shooting. Johnson told Deputy Jones substantially the same. The deputy searched the area and located five shell casings on the sidewalk.
Detective Gillis is assigned to the Antelope Valley Gang Task Force and works exclusively with the Lancas gang. The primary activity of the gang is shooting members from other gangs. Detective Gillis had investigated approximately 20 such incidents involving Lancas and their rivals. He testified to the predicate acts required by the Penal Code to establish that Lancas is a criminal street gang.
As part of his investigation into Bautista's shooting, Detective Gillis interviewed defendant. Defendant admitted he was a member of the Lancas gang and had the moniker "Dreamer." Detective Gillis opined that the shooting benefitted the Lancas gang. One of the effects of committing a shooting in a neighborhood is that residents become afraid to cooperate with police or testify in court.
Detective Gillis said he spoke to Carlos Vargas within a half hour of the shooting. Vargas told him that Dreamer from Lancas was the shooter. Vargas said he had known Dreamer for a couple of years. He stated that just prior to the shooting Dreamer got out of a car and ...