(Super. Ct. No. CM028037)
The opinion of the court was delivered by: Blease , Acting P.J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant William Robert Dye of attempted murder (Pen. Code, §§ 187, subd. (a), 664),*fn1 and found that he personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)). The trial court found that he committed the offense while released on bail or his own recognizance (§ 12022.1), and that he had served four prior prison terms (§ 667.5, subd. (b)). Defendant was sentenced to state prison for a determinate term of 15 years plus a consecutive indeterminate term of 25 years to life. He was also sentenced to two consecutive terms in the case underlying the on-bail enhancement.
On appeal, defendant contends (1) the jury instructions on attempted murder were erroneous as a matter of law, (2) the trial court erroneously denied his request for a jury instruction on attempted voluntary manslaughter, and (3) he is entitled to an additional day of presentence custody credit; the Attorney General concedes this last point. We shall modify the judgment.
Prosecution Case-in-Chief On the evening of August 31, 2007, a party was held at a Chico motel. Present were defendant, Christopher Johns, Johns's girlfriend Christy Scarbrough, Lena Forbes, Chris Smith, and Smith's girlfriend Antonia Taylor. Alcohol and methamphetamine were consumed.
When the methamphetamine began to run out, Forbes suggested that they buy more from victim Donnie Powell, Jr. (Powell Jr.), who lived nearby. Forbes and Taylor went to Powell Jr.'s apartment where Forbes purchased a quarter ounce of methamphetamine for about $300. After about 45 minutes, Forbes and Taylor returned to the party and shared methamphetamine with defendant, Johns, Scarbrough, and Smith. Then the methamphetamine ran out.
Forbes believed that Powell Jr. had access to a large amount of methamphetamine and could furnish more to the group. Johns suggested to defendant that Powell Jr. could furnish more methamphetamine.
Defendant asked to borrow Forbes's car. She watched as defendant, Johns, and Scarbrough left together in her (Forbes's) car. Defendant was driving.
On the evening of the party, Donnie Powell III was staying with his father, Powell Jr., at his Chico apartment. Powell III was on the living room couch. Powell Jr. and his girlfriend, Teresa Spohr, were in the bedroom watching television, talking, and dozing off. The bedroom door was closed.
Late in the evening, Scarbrough arrived at Powell Jr.'s apartment and knocked on the door. Powell III looked through the peephole and saw Scarbrough, whom he recognized as a family friend. Powell III opened the door and saw that she was accompanied by defendant and Johns, whom he did not know. The trio entered the apartment. Scarbrough wanted to see Powell Jr. Powell III knocked on Powell Jr.'s door and told him that Scarbrough was there. Powell Jr. said, "[w]e're busy," so Powell III returned to the living room.
According to Powell III, the trio went to Powell Jr.'s bedroom door and knocked on it; Scarbrough believed that only defendant and Johns approached the door. Scarbrough sat next to Powell III on the couch and talked to him while defendant and Johns sought entry to the bedroom.
Powell III told Scarbrough that the men were going to make his dad mad; Scarbrough replied, "[w]ell, they're mad," which prompted Powell III to observe the two men.*fn2 In an ensuing police interview, Scarbrough said her words had been, "Doesn't matter, they're pissed already." However, she had not known that anything was about to happen.
Spohr testified that someone kept knocking on the bedroom door approximately every two seconds, causing Spohr to become irritated and upset. After 45 to 90 seconds, she got up and opened the door, revealing two men she had never seen before. When Powell Jr. saw the two men, he jumped out of the bed and stood next to it. Johns testified that Powell Jr. and Spohr were acting nervous, as if they had been caught having an affair. Johns entered the room, nicely put his hand on Spohr's chest, pushed her back almost to her side of the bed, and told her that she needed to leave. Johns explained that he wanted Spohr to leave because he did not know her and did not want to talk about drugs in front of her; however, she did not leave.
Powell III saw Johns walk to the bedroom doorway and stand there while defendant stood behind Johns in the hallway. After hearing the sound of a punch, Powell III ran down the hall and glanced between defendant and Johns to check on his father. Powell III made eye contact with Powell Jr., whose expression suggested that things were okay. Then Powell III returned to the living room and sat with Scarbrough on the couch. He continued to look down the hall to make sure his father was okay.
Spohr testified that the other man (defendant) entered the bedroom, almost immediately pulled a black eight-inch revolver from his waistband, and shot Powell Jr. in the face as Powell Jr. tried to duck. Powell III similarly testified that the shorter, thinner man (defendant) reached into his waistband and pulled out a gun; then Powell III heard a pop. ...