(Super. Ct. No. 07F04046)
The opinion of the court was delivered by: Nicholson ,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Wayne Albert Caskey of first degree murder (Pen. Code, §§ 187, subd. (a), 189)*fn1 and found that he intentionally and personally used a firearm and caused death (§ 12022.53, subd. (d)).*fn2 He was sentenced to state prison for 50 years to life.*fn3
On appeal, defendant contends (1) the trial court improperly excluded evidence that witness Jaspreet Hayer was pregnant, (2) the court erred when it refused to give his requested pinpoint instruction on third party culpability, and (3) his trial counsel rendered ineffective assistance in two separate respects. We affirm the judgment.
On June 11, 2006 (hereafter "June 11"), Gary Brooks's dead body was found on the floor of his business, Brooks Electric.
The previous day (June 10, 2006; hereafter "June 10"), Brooks and defendant had been seen having a lengthy discussion while seated in defendant's red and white sport utility vehicle (SUV). Brooks's friend, Brian Mitchell, and Brooks's girlfriend, Jaspreet Hayer, saw Brooks in the SUV with defendant. By the time Mitchell approached them, Brooks and defendant were standing outside the SUV having a private conversation. The last time Mitchell spoke to Brooks was at 2:30 a.m. on June 11.
In the early evening hours of June 10, Francisco Lopez saw Brooks loading a machine into defendant's SUV. This occurred in the driveway of Don Newcomb's automotive repair shop, which was next to Brooks Electric.*fn4 Kenneth Massey helped defendant and Brooks load some welders into defendant's SUV. Massey saw that defendant had Newcomb's .45-caliber Glock handgun in his waistband. Defendant was talking face-to-face to Brooks while Brooks was securing the welders in the SUV. Two gunshots were heard after defendant walked around the front of his SUV. Immediately afterward, Lopez noticed two holes in the door of Newcomb's shop. Defendant then returned to Brooks and continued the conversation. Hours later, Lopez saw Brooks leaving with defendant in defendant's SUV.
On June 11, at 2:24 a.m., Vimal Singh drove his white pickup truck to Brooks Electric. He met up with Brooks in the warehouse portion of the shop and they smoked some methamphetamine. About 20 to 30 minutes later, two Fijian men came into the shop; more methamphetamine was smoked. When Singh left the shop shortly thereafter, the Fijians were still there. Singh drove away but returned at 3:25 a.m., so he could smoke more methamphetamine. When he returned, the Fijians' car was no longer there, but Singh saw the taillights of a silver SUV parked at the street corner.
Singh drove by the SUV to see who was inside. Unable to see inside the SUV clearly, Singh initially parked in front of the SUV but then turned around and parked in front of Brooks Electric. The SUV left the area. A few minutes after Singh turned off his truck's engine, he saw two masked men with rifles enter the gated entrance for Brooks Electric. Shortly after Singh lost sight of the two men, he heard gunshots. Within a minute after the shots, one of the masked men emerged from the building and raised his rifle at Singh. Singh restarted his truck, ducked his head, and quickly drove away. As he did so, Singh heard a series of gunshots and felt one of his tires go flat. Two circular holes were later found in his left rear tire.
Singh's wife was employed by a nearby private security company. Singh parked his truck in front of the company's front gate and hid until daybreak when he contacted a security officer who summoned Singh's wife to come pick him up. Video captured by security cameras at a nearby facility conformed to Singh's recollection of the incident.
Aman Kumar and Avenal Datt stopped by Brooks Electric sometime during the early morning hours of June 11. They smoked marijuana with Brooks and then left. When Kumar and Datt returned at approximately 6:00 a.m. for more marijuana, Elizabeth Morales (whose boyfriend owned a nearby auto body shop) also was approaching Brooks Electric. Morales had a short conversation with Datt before he got back into the car and drove away with Kumar.
Morales went into the shop looking for Brooks. She found his body on the office floor. Because the telephone in the office was not working, Morales used her cellular telephone to call 911. She had not heard any gunshots that morning.
In response to the 911 call, Sacramento County Sheriff's deputies arrived shortly before 7:00 a.m.
As noted, Newcomb owned an automotive repair shop next to Brooks Electric. Newcomb was romantically involved with Hayer at the time, and he had suspicions that Hayer was also involved with Brooks. Hayer was, in fact, in a relationship with both men. Newcomb denied that there were any jealous feelings between him and Brooks regarding Hayer. Brooks and Newcomb appeared to get along.
On the morning of June 10, Newcomb saw Brooks when he lent Brooks a trailer. During the day, Newcomb worked on a car at a friend's shop. Later, he met Hayer at a friend's house and had dinner. Newcomb and Hayer returned to Newcomb's shop to sleep at around 1:00 a.m. on June 11. Newcomb saw Brooks again when Newcomb entered the gate of his shop.
When Newcomb and Hayer arrived at Newcomb's shop, they saw that Massey was asleep on the couch in the downstairs office. Newcomb and Hayer proceeded to smoke methamphetamine. Both then took showers. Before going to bed, Newcomb and Hayer discussed possibly having heard two sets of gunshots.
Newcomb's shop was searched a few hours after Brooks's body was discovered. Deputies found two .45-caliber shell casings near the door to Newcomb's shop. Two corresponding holes were found in the upper part of the door.
Two or three months prior to the murder, Newcomb discussed going into business with defendant and Kovac. The discussions were not ongoing because Newcomb was being evicted from his shop. After the murder, Newcomb discovered that his .45-caliber handgun was missing.
Kovac was the registered subscriber for three cellular telephones (hereafter phones A, B, and C). The account was established in March 2006 and discontinued in July 2006. When asked by a detective whether he had telephone numbers for defendant and Kovac, Newcomb gave phone B's number for defendant and phone C's number for Kovac.
On June 11, phone B called Derek Zeller five times: at 3:27 a.m. (activating cell tower 357, antenna 2), 3:30 a.m. (activating cell tower 102, antenna 4), 3:31 a.m. (activating cell tower 102, antenna 4), 3:59 a.m. (activating cell tower 42, antenna 2), and 4:00 a.m. (activating cell tower 42, antenna 2)
That same day, phone A called Zeller twice: at 3:28 a.m. (activating cell tower 357, antenna 2) and 3:30 a.m. (activating cell tower 47, antenna 2).
An expert witness was unable to tell whether the two phones, which appeared to be moving through the cellular network, were traveling together. The expert did not discuss where phone C, which Newcomb attributed to Kovac, was located at the time of the calls on phones A and B.*fn5
Defendant was introduced to Massey as Kovac's brother. On June 10, Massey was selling methamphetamine at Brooks's and Newcomb's shops, an activity that defendant did not appreciate. The morning after the murder, Massey saw that Brooks ...