(Super. Ct. No. 08F10252)
The opinion of the court was delivered by: Butz , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Dominick West of second degree murder as a lesser included offense; it sustained allegations that in committing the offense defendant personally fired a gun from a motor vehicle with the intent to inflict great bodily injury. The jury also convicted him of making a criminal threat against a different victim at another location, sustaining an allegation that he personally used a gun in committing the offense. The trial court sentenced defendant to state prison for a term of 51 years to life, awarding only custody credits in accordance with the prohibition in Penal Code section 2933.2*fn1 on presentence conduct credits for defendants convicted of murder.
On appeal, defendant contends the trial court erred when it excluded evidence of third party culpability for the murder. He also argues there is insufficient evidence of a criminal threat. Finally, he asserts there is insufficient evidence to support an award of $10,000 in restitution to the murder victim's family. We shall affirm the judgment, but must vacate the restitution order.
Defendant paints a thorough picture of the evidence at trial, particularly highlighting inconsistencies or any potential for bias in the circumstantial and direct evidence connecting him with the offenses. However, as he does not contest the sufficiency of the evidence identifying him as the perpetrator, and we do not need to assess prejudice from any error, our account is more streamlined.
On the afternoon of June 1, 2007, a friend used his credit card to rent a silver 2007 Ford Taurus for defendant (who did not have a credit card). Defendant was still driving the car on June 9 when a police officer detained him to compare his appearance with a composite sketch of the suspect in the offenses involved here. (During the traffic stop, defendant jocularly denied any involvement and the officer let defendant continue on his way.)
The events being investigated took place after 1:00 a.m. on June 2. A patron had been at the Avalon Club at 15th and I Streets with friends. His gray Cadillac CTS was parked around the corner. Returning to the car, he heard one of his friends talking. The Avalon patron turned and saw that his friend was talking with a man in a car, which appeared to be white or silver with a Taurus silhouette.*fn2 As the Avalon patron was about to get into his car, the Taurus driver asked him where to find girls. In describing the Avalon clientele, the Avalon patron apparently rankled the Taurus driver when he called him "Dude." The Avalon patron then told his companions to get into the car (feeling the situation was starting to heat up and wanting to avoid any problems).
As the Avalon patron started to get into his car, one of his friends "scamper[ed]" into it quickly. The Avalon patron turned around and heard the Taurus driver say he would not tolerate any disrespect and was willing to hurt someone that evening. The Avalon patron told him he did not want any problems with him; the Taurus driver then brandished a large black "scary" handgun with a long barrel that made the patron afraid. The Avalon patron backed into his car as the Taurus driver stuck the gun out of the window of the Taurus and pointed it at him. The Avalon patron took this gesture "pretty seriously." He was afraid something could happen at any moment, and thus needed to get out of the area. He could not understand how the situation had escalated to this "scary and terrifying" point. The Taurus driver repeated that he was serious about hurting someone around there and then accelerated away.
The Avalon patron and his friends debated whether they should call the police. They attempted to follow the Taurus. They were unable to connect with 911 (reaching the Highway Patrol instead), and were not able to get the license plate number of the Taurus. After following for a few blocks, they decided to head home.
A patron from Stockton was leaving the Empire Club on 15th and R Streets at closing time. He walked with a friend to the friend's car, about a block away. A white car stopped next to him. It looked like a Ford Taurus. The driver called out to him. The Stockton patron approached the driver, who asked whether anything interesting was happening. The Stockton man bent down to see the driver and noticed a black gun-shaped object in the driver's hand in his lap. The driver mentioned that he was looking for someone and intended to shoot them. The Stockton patron thought it prudent to back off; he returned to his friend's car. The friend, who had approached the Taurus with him, had already retreated to his car after seeing part of a gun. In November 2008, the friend told a detective that he thought the car was a blue Taurus.
Another Empire patron left after the club turned up the lights. She and her friend were paused at a stop sign in their car at the corner of 14th and S Streets when a "light-colored" car drove slowly past them on S Street headed west. She saw the driver look in their direction and point a black gun at them.
The murder victim, Mary Ourk, lived in Sacramento with her boyfriend. A girlfriend who had known the murder victim since their school days in Stockton drove up in her dark blue Volkswagen Jetta to visit on June 1. They planned to go to the Empire Club that evening with other friends from Stockton who had joined them. (The Empire patron from Stockton was casually familiar with a couple of people in their group.) They left the Empire Club at closing time. The murder victim decided to drive her girlfriend home in her boyfriend's white Camaro, ...