(Super. Ct. No. 08F02962)
The opinion of the court was delivered by: Mauro , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
On the night of March 12, 2008, defendant Jesse Cornish shot Jabarie Mike in front of Mike's home and continued firing as Mike retreated into his residence. Defendant was convicted of attempted murder (Pen. Code, §§ 664/187, subd. (a)) and discharging a weapon at an inhabited dwelling (Pen. Code, § 246).*fn1 The jury also found that defendant personally used and discharged a firearm (§§ 12022, subd. (b)(1), 12022.53, subds. (b), (c) & (d)) and caused great bodily injury (§ 12022.7, subd. (a)). The trial court sentenced defendant to an aggregate term of 32 years to life in state prison.*fn2
On appeal, defendant contends we must reverse the judgment because he received ineffective assistance of counsel when his attorney (1) failed to object to testimony concerning defendant's silence; (2) failed to object to character evidence; (3) failed to object to the prosecutor's misleading statements concerning the order of deliberations; and (4) failed to call witnesses who would corroborate defendant's alibi. He also contends reversal is warranted due to the cumulative prejudicial effect of the alleged errors. None of defendant's contentions are persuasive. Accordingly, we will affirm the judgment.
Defendant shot Mike as the result of a verbal altercation between Mike and defendant's girlfriend, Arika Shaw. Mike worked with Shaw at an Applebee's restaurant in Elk Grove. On March 11, 2008, Mike complained to Shaw about a co-worker, Kjerstie Montgomery. When Shaw defended her, Mike stated she should not be so quick to do so because Montgomery was not a good friend to Shaw. In support of his claim, he related that Montgomery inappropriately had shared with him a confidence about Shaw's sex life. Shaw became angry with Mike and went outside. Defendant was in the parking lot waiting to pick up Shaw when her shift ended. Shaw told defendant about the altercation and then went back inside.
Mike left to run an errand. Defendant confronted him and asked if he had a problem with Shaw. Mike denied having a problem and cut off the conversation to go run his errand. Shaw finished her shift and left work with defendant. Thereafter, Mike telephoned her repeatedly and complained about defendant's conduct. Mike said he wanted to fight defendant and Shaw hung up on him. Mike called back again and defendant took the phone from Shaw and spoke with him. Mike yelled at defendant about the confrontation at work but defendant remained calm.
Thereafter, defendant decided he wanted to fight Mike, asked Shaw to show him where he lived, and she complied. When they arrived at Mike's house, defendant pulled out a gun, claiming it was only for self-defense if necessary. Defendant got out of the car but then changed his mind about fighting with Mike, telling Shaw he did not "want to do that in front of [her]."
The next night, Mike worked the night shift with Shaw and Montgomery, and the atmosphere was "flat." Montgomery told Mike her boyfriend had just been released from jail and Mike should not have "opened up [his] mouth." Mike also felt threatened by defendant's conduct the day before. Because he feared for his safety, Mike called his girlfriend's brother, Frederick Coner, to come to Applebee's and escort him home after work. Coner arrived and the two men drove to Mike's home in their respective cars after Mike's shift ended around 9:00 p.m.
Mike lived nearby in a house he shared with his girlfriend, her mother, and three other people. When Coner decided to leave he discovered his car would not start. Around 10:30 p.m., Mike was helping Coner jump his car battery when he noticed a small red car do a U-turn and stop across the street. Two men exited the car and approached Mike, who was still wearing his Applebee's uniform. One of the men, who Mike later identified as defendant, had a "mean mug" expression. Defendant walked toward Mike, raised his arm, and began firing the gun he was holding. Mike turned and ran towards the house, but was shot through the thigh before he reached safety. Defendant continued shooting at the house after Mike went inside.
Neighbors heard multiple gunshots about 10:30 p.m., witnessed a red car speeding away, and called 9-1-1 to report a shooting. When the police responded, they found Mike wounded and several slugs in the structure of the house.
Mike spoke briefly with the police before being transported to the hospital and spoke with them again at the hospital. He did not remember exactly what he said because he was in pain and in shock. Mike recalled telling a police officer that a light skinned black man shot him and he was accompanied by a Hispanic male. At that time he did not tell the police he thought the shooter was defendant. However, when a detective visited him at home midday the next day, Mike told the detective that he thought Shaw's boyfriend shot him and that if he saw him he could identify him. A few days after the shooting, Mike viewed a photographic lineup and selected defendant as his assailant. Mike could not identify the man who accompanied defendant, and Coner was unable to identify anyone from the lineup. At trial, Mike adamantly identified defendant as his assailant.
Detectives Sanchez and Bearor questioned defendant, who waived his Miranda rights. Defendant denied shooting Mike and claimed he did not know where he lived. Defendant stated that on the night of the shooting, he drove from his mother's house in Rancho Cordova to the Applebee's in Elk Grove to return Shaw's car around 7:00 p.m. Then he went to Fresno with his brothers, Meshach and Ammiel, and Ammiel's girlfriend in her car. According to defendant, a trip to Fresno takes about 90 minutes. When they reached Fresno, they ran a few errands for about 30 minutes before returning to his mother's house in Rancho Cordova. They arrived back about 10:00 or 10:30 p.m. Defendant called Shaw around 10:40 p.m. and asked her to pick him up after her shift ended. Defendant stated he had his cell phone with him during the trip.
Cell phone records and signals from nearby cell phone towers indicated that defendant did not go to Fresno. Rather, Shaw called defendant when Mike left the restaurant around 9:00 p.m., after which defendant's cell phone (and presumably defendant) traveled from Rancho Cordova to Elk Grove. Defendant was in the vicinity of Mike's house when Mike was shot. Defendant then traveled back to Rancho Cordova.
Defendant's mother, Priscilla Cornish, owns a red Hyundai and Mike's assailants were in a small red car. Cornish works at an assisted living facility in El Dorado Hills. Her work shift is four days, for 24 hours a day, beginning on Wednesday and ending on Sunday. Cornish testified that sometimes one of her 16 children would drive her to work in her car and then pick her up several days later when her shift ended. According to Cornish, she drove herself to work on Wednesday, March 12, 2008. According to Cornish's supervisor, however, the red car was not parked at the facility on Thursday morning and she did not ...