APPEAL from a judgment of the Superior Court of Los Angeles County. Kathleen Blanchard, Judge. (Los Angeles County Super. Ct. No. MA036245)
The opinion of the court was delivered by: Johnson, J.
CERTIFIED FOR PUBLICATION
A jury convicted Ricardo Valenzuela of five counts of attempted murder, one count of second degree murder, and three counts of shooting at an occupied motor vehicle, and found true related firearm and gang allegations. The court sentenced Valenzuela to 230 years to life in prison. Valenzuela appeals, claiming instructional and other error. We order the judgment modified but affirm in all other respects.
An information filed December 14, 2009, charged Valenzuela with five counts of attempted willful, deliberate, and premeditated murder in violation of Penal Code*fn1 sections 187, subdivision (a), and 664 (counts 1, 2, 3, 5, and 6), and one count of willful, deliberate, and premeditated murder of Ezekiel Gonzalez, in violation of sections 187, subdivision (a) and 664 (count 4).
The information also alleged that as to counts 1, 2, and 3 Valenzuela personally and intentionally discharged and used a handgun, in violation of section 12022.53, subdivisions (b) and (c). As to counts 4 and 5, the information alleged that a principal personally used (§ 12022.53, subds. (b), (e)) and personally and intentionally discharged a firearm (§ 12022.53, subds. (c), (e)(1)), which proximately caused great bodily injury and death to the victim (§ 12022.53, subds. (d), (e)(1)). As to count 6, the information alleged that a principal personally used (§ 12022.53, subds. (b), (e)(1)) and personally and intentionally discharged a firearm (§ 12022.53, subds. (c), (e)(1)). The information alleged that the attempted murder counts (counts 1, 2, 3, 5, and 6) were committed willfully, deliberately, and with premeditation, in violation of section 664, subdivision (a). The information also alleged that the attempted murder and murder charged in counts 1 through 6 were committed for the benefit of a street gang, in violation of section 186.22, subdivision (b)(4).
Valenzuela pleaded not guilty and denied the special allegations. During trial, on a motion by Respondent, the information was amended by interlineations to add three counts of shooting at an occupied vehicle, in violation of section 246 (counts 7-9) with related allegations of personal firearm use (§ 12022.5) and gang allegations (§ 186.22, subd. (b)(4)). The information was also amended to add the allegation to count 6 that a principal personally and intentionally discharged a handgun, causing great bodily injury and death to the victim. (§ 12022.5, subds. (d), (e)(1).)
The jury found Valenzuela guilty of the second degree murder of Ezekiel Gonzalez (count 4) and guilty as charged on all other counts, and found true all the enhancement allegations. On July 26, 2010, the trial court sentenced Valenzuela to a term of 230 years to life in prison, staying under section 654 the sentences for the three counts of shooting at an occupied vehicle. Valenzuela filed a timely appeal.
Valenzuela argues that several instructions were not supported by substantial evidence, and we therefore describe the evidence in some detail.
At trial, the prosecution's first witness was Anubia Gonzalez, the sister of Ezekiel Gonzalez, the murder victim.*fn2 Anubia testified that in 2004, when she was 15, she "jumped in" to "Trust No Bitch," (TNB) fighting a TNB member as her initiation. TNB had around 20 members, and Roger Martinez was their leader. TNB's territory was in Palmdale. When Anubia joined, she believed TNB was a "tagging crew," but she later learned that TNB also stole cars and fought with rivals or anyone who disrespected them, and "wanted to be a gang." Anubia "jumped out" of TNB in February 2005 by fighting two TNB members. She left because a TNB member had attacked a friend of hers whose brother was a member of Young Boys Rifa (YBR). Anubia had seen photographs of TNB members, including Martinez, with firearms.
The area Anubia lived in was YBR territory. Anubia had heard rumors that her brother Gonzalez was a YBR member, and she knew for sure in April 2006, when Anubia saw YBR tattoos on Gonzalez's hand and the back of his head. In May 2006, Anubia was at a swap meet with Gonzalez, when she approached a former boyfriend and TNB member and asked him whether TNB and YBR were "bumping heads." The former boyfriend's sister attacked Anubia, telling her to go ahead and "'[s]ay fuck T-N-B and watch what's going to happen.'" The two women pushed each other and began to fight, and Anubia's former boyfriend kicked her. Gonzalez told him to stop, and the fight ended.
A. The May 6, 2006 shooting (attempted murder, counts 1, 2, and 3)
Oscar Flores testified that he was Gonzalez's brother-in-law, and knew that Gonzalez was a YBR gang member with gang tattoos on his body. Flores was not a gang member. On May 6, 2006, Flores was driving home in his fiancee's Nissan Sentra, with Gonzalez in the passenger seat and someone called "Socko" in the back seat. It was dark out. As Flores pulled out of a gas station, he heard a gun go off and saw his car window shatter. Flores could not remember how many shots he heard. Flores saw a white Ford Festiva on his right hand side, with a "'Jesus Malverde'" sticker in the back window. Flores looked over and saw one person, Valenzuela, in the Festiva. Valenzuela had shouted "'T-N-B'" before the shooting. Flores did not know Valenzuela, but Gonzalez knew him and said he was from TNB and his nickname was "Snaps."
Flores inspected the Sentra afterward and noticed bullet holes in the headrest on the passenger's side, near the handle on the front passenger door, and near the handle on the rear passenger door. The passenger side windows were shattered, and Flores found a bullet lodged in the front passenger headrest, where Gonzalez had been sitting. Flores did not report the incident because he was worried that he would be labeled a "snitch." He filled the bullet hole in the front passenger door the next day.
B. The July 10, 2006 shooting (murder, count 4, and attempted murder, counts 5 and 6)
Flores testified that after dark on July 10, 2006, after playing handball with Gonzalez and someone called "Smokes"*fn3 at McAdam Park, he drove off in the Sentra, with Gonzalez in the passenger seat and Smokes in the back seat. Flores noticed the same white Festiva. Gonzalez suggested he follow, and Flores started after the Festiva.*fn4 Flores' intention was to talk to whoever had shot at him earlier and tell him he didn't want any problems, although Gonzalez wanted to beat the Festiva driver up. Flores followed about three lengths behind the Festiva through two traffic lights, driving under the speed limit. When the Festiva made a left turn onto a two-lane highway, Flores noticed that the driver was using a cell phone. There was another person in the Festiva.
Flores then noticed a black car (later determined to be a green Dodge Stratus, belonging to Roger Martinez) on his driver's side, on the wrong side of the road, and saw one person in the car. The driver of the Dodge lowered the passenger side window, raised a gun, and started firing multiple shots at Flores's Sentra. Flores ducked down, and Gonzalez fired back at the Dodge. At the same time, the Festiva moved next to the Sentra's passenger side on the shoulder of the highway, and Valenzuela, the driver of the Festiva, also fired at the Sentra.*fn5 At some point, Flores's Sentra hit the back of the Festiva. Flores's left arm was struck by a bullet which he was sure came from Martinez's Dodge.
Flores crashed the Sentra into an oncoming car. When he came to, he saw that the Sentra was on fire and got out of the car. Seeing that Gonzalez was not moving, he asked people to help get him out, and someone pulled a bleeding Gonzalez from the burning Sentra. Flores and Smokes ran five feet away from the car.
Los Angeles County Sheriff's Deputy Douglas Parkhurst testified that he arrived on the scene at 10:33 p.m. The Sentra was in flames, and a black vehicle it had collided with was at the corner. The Festiva was abandoned about 200 to 250 yards away. Gonzalez was lying on the sidewalk with a gunshot wound, and paramedics pronounced him dead.
Los Angeles County Sheriff's Detective Jonas Shipe testified that he arrived on the scene at 1:05 a.m. A .38 bullet casing was found north of the collision scene on the highway. A gun (a Walther PPK) was recovered from the Sentra's front dashboard area. On the driver's side of the Sentra, there was a bullet hole in the sideview mirror, a strike to the frame of the door, and a strike to the keyhole of the door. A bullet fragment was recovered from the door.
From the Dodge, police recovered a bullet that matched the Walther PPK recovered from the Sentra. The other two bullets--the fragment in the door of the Sentra, and the casing found in the street--were not fired by the Walther PPK. When interviewed, Flores said "Snaps" was the person involved, and identified Valenzuela as a suspect in a six-pack photo identification.
Flores was initially arrested and booked for murder. On July 12, 2006, he told Detective Shipe that he did not follow the Festiva, and that the Festiva hit the Sentra from behind. He denied having seen the Festiva before, and said he did not know how he got shot. Flores also said that he saw that Gonzalez had a gun in his work boot, before he saw the Festiva or the Dodge. After the police showed him a photo of Gonzalez lying dead, Flores said he knew where "Snaps" lived, showed Detective Shipe where the house was, and identified the Festiva, stating that he had seen it parked outside Valenzuela's house.
C. July 18, 2006 arrest of Valenzuela and interview in custody
Detective Shipe arrested Valenzuela on July 18, 2006. Valenzuela was leaving his house in the back seat of a car. Detective Shipe recovered a loaded .22-caliber pistol, wrapped in a shirt, from the storage compartment of the driver's seat, in front of where Valenzuela was sitting. A search of Valenzuela's house found shotgun shells, .22-caliber rounds, a bandanna, and in Valenzuela's room, notebooks with TNB written on them.
A tape-recorded interview of Valenzuela that same day with Detectives Shipe and David Carver was played for the jury at trial. Valenzuela stated that he had a TNB tattoo from two or three years earlier, and his nickname was "Snaps" because he used to have an anger management problem. He was 18 years old. When asked when he had "jumped in" to TNB he replied that he was 15 or 16, but was no longer a TNB member. He admitted that about two weeks ago on the streets, he acquired the gun found at the time of his arrest in the car storage compartment. He owned the ammunition found in his room. Sometimes Valenzuela borrowed his mother's Festiva, which had a Malverde sticker on it. He took the car without telling his mother on July 10, 2006, and was at the house of his friend "Puppet." Valenzuela then said he didn't want to answer any more questions, and the interview ended.
Detective Shipe testified that Valenzuela called the detectives back to talk more. Detective Shipe mistakenly believed he had started the tape recorder when the second interview began, but he hit the wrong button and the interview was not recorded. Valenzuela told the detectives that he saw rival gang members and fired the shots at Flores's Sentra in May 2006, but he never stated that he saw a gun, that someone in the Sentra shot at him ...