(Super. Ct. No. 08F01220)
The opinion of the court was delivered by: Robie , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Ben Edward Lee guilty of the premeditated attempted murder of M., rejecting his defense he had nothing to do with the shooting and was at a carnival at the time.
Defendant appeals raising contentions relating to the evidence, instructions, and his counsel's representation. Finding no merit in these contentions, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
M., the victim., was a friend of J. and was staying at J.'s house in North Highlands for a few days in February 2008. J. knew defendant because defendant and J.'s sister had dated for eight years and had a child together. M. had known defendant for about three or four years.
Around 6:30 p.m., J. left M. with J.'s 22-month-old daughter in J.'s house while J. went to the store to get some chicken. There was a knock at the door, and M. asked who it was. The man at the door asked if J. was there. As M. opened the door, she noticed the man had a gun. She had never seen this man before. M. "pushed the door back as hard as [she] could and ran for the baby." As the man followed her, M. said, "'No please. There is a baby in here. Don't do this. There's a baby in here.'" M. hid the baby between the love seat and couch and then ran through the kitchen and back out the front door. She did not realize she had been shot in the arm.
Once outside, M. ran near a neighbor's fence. M. saw defendant standing about five feet from her with a gun in his hand. She turned around and ran the other direction. She looked back at defendant and heard a loud noise and then felt as though somebody had pushed her down on her back. While she was on the ground, defendant came up to her and said, "'God forgive me for my sins'" and "shot [her]." M. summoned the neighbor, who had already called police.
Another one of the neighbors had heard gunshots and saw a dark car with a missing front license plate that looked like a Nissan Maxima or Lexis that was parked (but still running) with a driver inside. Two men jumped in the car -- the bigger one in the front passenger's seat and the other one in back. The car sped off.
Police responded at 7:05 p.m., five minutes after they were dispatched. M. was "very seriously hurt." She could not communicate with police. She had to have immediate surgery to remove part of her kidney and liver because they were "[c]ompletely shattered." Her hand is partially paralyzed.
About 8:15 p.m., J. returned home. J. told police that about two weeks prior to this shooting, defendant had called her and "threatened to shoot her, her baby, [and] [her] house." Defendant thought J. was going to tell his current girlfriend S. about the fact defendant had a baby with J.'s sister and that he had been "sleeping with" other women while dating S. J. threatened to report defendant to police for a fight defendant had had with J.'s sister.
Police pulled over defendant later that evening in South Sacramento. He was driving his girlfriend's black Lexus. The neighbor who saw the shooters and the getaway vehicle was called for an in-field lineup of defendant and the car he was driving. Defendant "definitely fit the description" of the person the neighbor saw jump into the front passenger's seat, down to his "small peanut-shaped head compared to the body." The car "look[ed] similar . . . in the body shape and its style" to the getaway car and was also missing a front license plate.
Four days after being in the hospital, M. woke up from a coma. According to M., she talked to police before she talked with anybody else and told them defendant was the second person who shot her. According to a sheriff's detective, he spoke to M. only after receiving a call from J. stating J. and M. had spoken and M. had identified one of the shooters as defendant. According to J., M. told her she (M.) did not know who had shot her, and it was J. who told M. that she (J.) thought defendant was one of the shooters.
Six months after being shot, M. was arrested for having an Ecstasy pill in a purse in a car that she was in. She faced a sentence of six years, but the case was dismissed for lack of sufficient evidence. The dismissal ...