(Super. Ct. No. CRF07-5385)
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Rudy Joseph Ornelas of attempted murder (Pen. Code, §§ 21a, 187, subd. (a), 664--count 1),*fn1 possession of a firearm by a felon (former § 12021, subd. (a)(1)--count 2), and assault with a semiautomatic firearm (§ 245, subd. (b)--count 4). The jury found true allegations that defendant intentionally and personally discharged a firearm (former § 12022.53, subd. (c)) in the commission of count 1 and that he personally used a firearm (former § 12022.5, subd. (a)) in the commission of count 4. The jury found not true an allegation that count 1 was "done willfully with premeditation and deliberation." (§ 664, subd. (a).) The jury deadlocked and a mistrial was declared on a count of conspiracy to commit assault with a semiautomatic firearm. (§ 182, subd. (a)(1)--count 3.)
In a bifurcated proceeding, the trial court found that defendant had suffered a prior serious felony conviction (§ 667, subd. (a)(1)) and had served four prior prison terms (§ 667.5, subd. (b)).
Defendant was sentenced to state prison for 45 years, consisting of 18 years (double the upper term) for count 1, 20 years for discharge of a firearm, five years for the prior serious felony conviction, and two years for prior prison terms.*fn2 He was awarded 1,480 days of presentence credit pursuant to section 2933.1.*fn3
On appeal, defendant contends (1) his trial counsel rendered ineffective assistance when he failed to request a mistrial; (2) the trial court erred by failing to instruct the jury sua sponte on the lesser included offense of attempted voluntary manslaughter; and (3) the court erred by failing to instruct sua sponte that defendant's out-of-court statements must be viewed with caution (CALCRIM No. 358). We shall affirm the judgment.
In February 2007, Melinda McKinnon was dating and living with Claudio Magobet.*fn4 One day, McKinnon left Magobet's house and took his wallet with her. That night she met up with victim Abel Trevino, with whom she had had a prior sexual relationship, and they ended up having sex at a local motel.
The next day, defendant telephoned Magobet and told him that he had seen McKinnon with Trevino the previous night and that McKinnon had Magobet's wallet. Defendant also said that his own keys were missing; he believed Trevino might have them. Defendant and Magobet agreed to meet up and look for McKinnon and Trevino. Magobet took his loaded nine-millimeter handgun with him.
Defendant and Magobet spent the day driving around West Sacramento, drinking beer, and checking multiple locations for Trevino or McKinnon. At one point, defendant asked Magobet if he could hold Magobet's gun because "he would know how to handle the situation."
Defendant and Magobet found Trevino at a trailer owned by Ray Mata. Defendant and Magobet yelled and threatened Trevino as they approached the trailer. Mata allowed the duo to enter because Magobet assured Mata that there would be no problems.
Defendant and Magobet asked Trevino about the location of Magobet's wallet and defendant's keys. Trevino denied knowing anything about them. Defendant then asked Trevino to step outside to continue the conversation. Trevino resisted but eventually followed defendant out the front door.
As soon as they got outside, Trevino used his left hand to strike defendant on the back of the head. Defendant "bobbl[ed] around" and hit a truck. Before Trevino could strike him again, defendant regained his composure and reached in his pants for the gun. Trevino pushed defendant and tried to run away.
Defendant fired the gun at Trevino from close range but missed. Trevino took cover behind the truck. Defendant then fired a second shot at Trevino, missing again. Still hiding behind the truck, Trevino pleaded for defendant to stop shooting. Defendant fired a third shot at Trevino, missing again. Finally, Trevino ran from the truck and tried to jump a wooden fence. Defendant fired a fourth shot at Trevino, which also missed.
Defendant's wife, Angelina Ornelas (Angelina), testified that a few months after the shooting Magobet gave her a key to his Lexus: "He said, I'm giving you this key to my '99 Lexus. He said, tell [defendant] to stay quiet, and I'll get him out of this mess because all of this mess is mine." Magobet also told Angelina that he had fired the gun at Trevino.
Angelina further testified about a conversation she had with Trevino after the shooting. "He said he was sorry for [defendant] being in custody and that he was going to clean his [sic] self up from drugs and go ...