(Super. Ct. No. 07F09612)
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following the denial of a motion to suppress evidence (Pen. Code, § 1538.5),*fn1 a jury found defendant Andre Pulido guilty of the first degree murder of Rodrigo Rodriguez, Jr. (§ 187, subd. (a)). The jury also found true allegations he used a firearm in the commission of the murder (§ 12022.53, subds. (b)-(d)) and committed the murder while lying in wait (§ 190.2, subd. (a)(15)). The trial court sentenced defendant to life in prison without the possibility of parole for the special circumstance murder, plus a consecutive 25 years to life for the firearm enhancement. The court also imposed, among other things, a $10,000 parole revocation fine. (§ 1202.45.)
Defendant appeals, contending the trial court prejudicially erred in (1) denying the motion to suppress, (2) admitting evidence regarding an eyewitness's identification of defendant's car as the getaway car, and (3) excluding evidence that a key prosecution witness lied to police in connection with a prior, unrelated incident. Defendant also asserts, and the People concede, that the parole revocation fine must be stricken because he was sentenced to life in prison without the possibility of parole.
We shall order the parole revocation fine be stricken and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Defendant is shot on September 2, 2007
On the evening of September 2, 2007, defendant attended a party with his girlfriend Francine Guzman, his friend Oliver Garrett, and Garrett's girlfriend. While defendant and the others were drinking in the backyard, Guzman's cousin, Joseph Garcia, arrived with two or three other men. Garcia, who previously had been associated with the Bloods street gang, "exchanged some looks" with Garrett. Defendant introduced the two men, and they shook hands. Later, a song began playing and Garrett began doing the "Crip dance" and said, "Valley Hi Crips." When Garcia saw and heard Garrett, the two men again exchanged hostile looks.
Guzman and defendant asked Garrett and his girlfriend to leave the party "so nothing further would happen," and they did. Shortly thereafter, Garcia left with four or five men. As Garrett walked away from the party, he and Garcia exchanged words, including "Crip" and "Blood." Garcia lifted up his shirt and displayed a gun in his waistband. Defendant attempted to intervene, and Garcia shot him in the face.
Guzman told a friend that defendant "went crazy" after he was shot. Several days later, defendant's brother telephoned Guzman and asked if she "knew that it was [her] cousin Joseph [Garcia]" who shot defendant, where Garcia lived, and what kind of car he drove. Guzman responded that she did not know whether Garcia was involved, where he lived, or what kind of car he drove. Guzman never saw defendant with a handgun, and she would not have dated him if he had one. Gangs were not any part of defendant's life.
B. Rodriguez is murdered on September 16, 2007
Rodriguez, the victim in this case, was Garcia's cousin. In September 2007, Rodriguez was a student at UC Berkeley. He returned home to Sacramento on weekends to cut hair and earn money for college. He rented a chair at the House of Skillz Barber Shop on Martin Luther King Jr. Boulevard.
At approximately 5:30 p.m. on September 16, 2007, Rodriguez and his half-brother Andrew Lopez went to the barber shop so that Rodriguez could cut Lopez's hair. Rodriguez drove them there in his blue Mustang, which he parked in front of the shop. The shop was closed, but Rodriguez opened the door with his key and locked the door behind them. No one else was in the shop at that time. It took Rodriguez about 40 minutes to cut Lopez's hair. When he was nearly finished, the building manager, Lorenzo Walsh, stopped by. Walsh coached a Pop Warner football team and was returning some equipment he stored elsewhere in the building. Rodriguez and Walsh exchanged pleasantries and Walsh left. When Rodriguez was finished cutting Lopez's hair, they cleaned up and prepared to leave.
Lopez left the shop first, while Rodriguez turned off the power. While Lopez was waiting for Rodriguez outside, he saw a man crouched down on the side of the building. As Rodriguez walked outside, the man came around the corner, fired two shots at Rodriguez, then pointed the gun at Lopez. Lopez dove underneath Walsh's truck, which was parked in front of the shop. When Walsh started the truck, Lopez rolled out from underneath it and saw the shooter straddle Rodriguez and shoot him four or five more times. Lopez then ran to get help.
At 6:40 p.m., Sacramento police were dispatched to the scene. Rodriguez was pronounced dead at 6:48 p.m. He was shot six times -- once in the abdomen, once in the right buttock, and twice in the upper and lower back.
Lopez described the shooter as a light-skinned African American or Puerto Rican man, with long dark hair that was pulled back in a ponytail, between 18 and 24 years old, between 5 feet 10 inches and 6 feet 2 inches tall, thin build, between 150 and 165 pounds, with acne scars or razor bumps along his jaw line, and wearing a red t-shirt with some kind of design on it and faded black jean shorts. Shortly after the shooting, Lopez worked with a sketch artist in creating a composite sketch of the shooter.
At trial, Lopez testified that he did not believe defendant was the shooter. He explained that the person who shot his brother had long hair, little sideburns, a "little jawline [sic] hair," and more acne scars than defendant had at trial. He believed the people in Walsh's truck would have gotten a better look at the shooter because the shooting happened right in front of them. Bert Moore, a parent volunteer, and three of Walsh's young players -- Dejanerio Woldridge, Demariae Woldridge,*fn2 and Derayne Duncan -- were sitting in Walsh's truck at the time of the shooting.
As Walsh turned to get into his truck to leave, he heard multiple gun shots. He watched as the shooter continued to fire shots at Rodriguez. He heard the shooter say, "Punk mother fucker," "Bitch mother fucker," or "Bitch ass mother fucker." Once inside the truck, Walsh fumbled around, and finally was able to start the truck and drive off. After he got the children to safety, he returned to the shop.
Walsh described the shooter as black and white or white and Hispanic, light-skinned, with long hair that was pulled back in a ponytail, in his mid-twenties, with facial hair, slim, approximately 5 feet 10 inches tall, 160 pounds, and wearing a plain red t-shirt and knee length blue jeans. Walsh thought defendant looked like the shooter but could not positively identify him as the shooter. Walsh met with the sketch artist and was shown the composite drawing that was created based on Lopez's description. The sketch artist altered the shooter's hair after meeting with Walsh.
Prior to the shooting, Moore noticed a man sitting on the side of the building. It appeared to Moore that he was smoking a cigarette while waiting for a haircut. When Moore, who was seated in the front passenger seat of Walsh's truck, heard the gunshot, he ducked. He then heard a series of other shots and someone say, "Your momma [F]rench you, bitch ass mother fucker." Moore observed the same man he saw standing next to the building prior to the shooting walking away from the building after the shooting. Moore described the man as mixed race, possibly Puerto Rican or Cuban, with his hair in a ponytail, approximately 6 feet and 1 inch tall, between 160 and 170 pounds, and wearing a red shirt. On November 16, 2007, Moore picked defendant out of a photographic lineup as the man he saw walking away from the building after the shooting. At trial, Walsh testified the man he saw after the shooting looked similar to the defendant, but he was not positive defendant was that man.
At the time of the shooting Demariae and Dejanerio Woldridge were seated in the back seat of Walsh's truck. Demariae was 10-years-old, and Dejanerio was 6-years-old. Each described the shooter as light-skinned, with black hair that was pulled back in a ponytail. At trial, Demariae testified the shooter was wearing a white t-shirt, and Dejanerio testified the shooter was white.
Demariae was shown several pictures of defendant's car and positively identified it as the car he saw the shooter get into after the shooting. Prior to identifying defendant's car as the getaway car, Demariae described the getaway car as a large, blue four door with tinted windows and shiny rims. Defendant's car did not have rims. Dejanerio described the car as a large, dark blue car. At trial, Dejanerio described the car as a gray, four door car with tinted windows.
Immediately after the shooting, a neighbor who witnessed the shooter get into a car described the car as a "small black newer compact." At trial, the neighbor testified the car was a four door, medium-sized, dark colored car.
Four other witnesses observed a man standing alongside the building prior to the shooting or the shooting itself. Each of the witnesses generally described the man they saw as mixed race, possibly Hispanic and African American or Puerto Rican, with light skin, long curly dark hair, in his 20s, between 5 feet 6 inches and 5 feet 10 inches tall, around 150 pounds, and wearing a red t-shirt. Three of the four witnesses indicated the man's hair was partially pulled back or in a ponytail. One of the four witnesses was able to positively identify defendant as the shooter, stating she was 90 percent sure of her identification.
Defendant is half African American and half Mexican. In September 2007, he drove a blue Buick LeSabre and had shoulder length hair that he typically wore in a ponytail. Telephone records for defendant's cellular telephone indicated no calls were made to or from defendant's phone around the time of the murder. The records ...