(Super. Ct. No. 08F07509)
The opinion of the court was delivered by: Murray , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Victor Anthony Ortega of first degree murder (Pen. Code, §§ 187, subd. (a), 189;*fn1 count one) of Marcus Mayes and found true allegations that defendant personally and intentionally discharged a firearm causing death or injury (§ 12022.53, subd. (d)) and personally used a firearm (§ 12022.5, subd. (a)(1)). The jury acquitted defendant of the attempted murder (§§ 187, subd. (a), 664; count two) of Dariece Sims. Defendant was sentenced to state prison for two consecutive terms of 25 years to life for the offense and the firearm enhancements.
On appeal, defendant contends (1) his conviction is not supported by sufficient evidence of intent to kill and premeditation, (2) the trial court erred prejudicially by failing to instruct the jury sua sponte on the lesser included offense of unlawful act involuntary manslaughter, and (3) the court erred by refusing to allow defendant to discharge his retained counsel and to consider a new trial motion based on ineffective assistance.
We conclude that there is substantial evidence supporting the conviction, any error in not giving unlawful act involuntary manslaughter instructions was harmless, and the trial court did not abuse its discretion when it impliedly determined that defendant's request to discharge retained trial counsel was untimely. We affirm the judgment.
On May 28, 2008, around dusk, the victim, Marcus Mayes, and his friend Dariece Sims walked down a street. Defendant drove past them, going in the opposite direction. As the car passed, the passenger, who was reclined in his seat, leaned up and quickly glanced at Mayes and Sims while trying to hide his face. This piqued Sims's curiosity and spooked him. Sims asked Mayes if he had seen the car. Mayes looked back at Sims but did not otherwise respond as they continued walking.
After the car went down the street, it evidently made a U-turn and headed back in the direction in which Mayes and Sims were walking. The car slowly passed them and drove out of sight behind a fence and a bend in the road. As the car passed, defendant and the passenger were "mad-dogging" Mayes and Sims. Sims described the term "mad-dogging" as "[l]ooking hard, like staring at somebody for a long time." Sims got suspicious and asked Mayes, "Did you see them?" Mayes replied, "Yeah, I saw them. Just keep walking." Sims did not recognize defendant or the passenger.
Mayes and Sims kept walking. When they rounded the bend in the road, they saw that the car had parked facing toward them, as if it had made another U-turn in the interim.
Defendant and the passenger left the car and walked toward Mayes and Sims, who continued walking toward them as the distance quickly closed. When defendant and the passenger were about six feet from Mayes and Sims, everyone stopped walking. The passenger asked defendant, "[d]on't you know him?" and defendant replied, " [y]eah, that's the bitch-ass nigger from the Light Rail."*fn2 Sims believed there was going to be a fight.
Defendant drew a revolver from his jacket pocket as he finished his remark. Mayes, who was two or three steps in front of Sims, swung at defendant but missed, which threw him off balance. Mayes grabbed the front of defendant's jacket with both hands and pushed him into a gate and fence. Defendant and Mayes were upright at that point. Defendant had both hands up by his head with the gun in his left hand "pointing up in the air."
Sims rushed at defendant and tried to grab the gun. He fought for the gun for three to five seconds. As soon as Sims felt the gun, it fired, burning his hand. Sims heard the loud shot go past him; he felt heat on his hand and his shoulder. The heat caused him to let go of the gun. It was later discovered that Sims's coat had two bullet holes, one in the top right shoulder, which appeared to be an entry hole, and the second in the back of the right shoulder, which appeared to be an exit hole.
At the time the first shot was fired, defendant, Mayes and Sims were all standing upright. After the first shot was fired, Sims looked at the gun, turned around and dropped to the ground for protection. Sims could not see anything. At that point, he did not know what Mayes, defendant and the other person who had confronted them were doing. Prior to that point, the other person had not been doing anything aside from standing.
After falling to the ground, Sims grabbed for Mayes's shirt and tried to pull him down. Sims heard three more shots as he tried to pull Mayes to the ground, but he did not see what position Mayes was in at that time.
After the shooting stopped, Sims looked up and saw defendant and the passenger run off. The duo ran to the car, got inside, backed up and drove away.
Mayes hit the ground right next to Sims but hopped right back up. Sims tried to grab Mayes. Mayes took about five steps and fell. Sims talked to Mayes, but Mayes did not respond. Sims, who was hysterical and yelling, stayed with Mayes until the police arrived.
Five citizen witnesses testified at trial. Joanne Parker, who lived in the area, heard two gunshots back to back. She looked out the window of her home and saw two males run and get into a car that sped off, made a U-turn, and drove away.
Karen Johnston, who also lived in the area, heard what she thought was a car backfiring. She went out to her backyard and determined that she had heard gunfire -- five shots in quick succession. Johnston looked over her fence, heard one man screaming and saw a second man running to a car as she heard someone yell "[g]o, go, go." The second man entered the car on the driver's side. Then the car, with the two occupants, backed up and drove away.
Sandra Swift, who also lived in the area, was watching a movie on her television when she heard a pop that she thought was a gunshot. A "few seconds" later, she heard three more shots. From her window, she saw two men hurriedly run down the street and jump into a car. The car made a U-turn and sped off.
Harold Fulkerson was standing in a parking lot approximately 200 yards away from the shooting scene. He heard "five or six gunshots" in rapid succession "about as fast as [someone could] pull the trigger." He estimated that all of the shots were fired within a span of approximately three seconds. Because of his distance from the scene, he could not see the shooting or see or hear anything that had occurred prior to or after the shooting.
Diane Barber was driving her car and stopped at a stop sign at a nearby intersection. From a distance of 30 to 40 feet, she saw four males walking in two pairs and heading toward each other. It looked as if one or two words were exchanged, but she could not hear what was said. "[T]he victim" threw a punch, but she did not know whether he made contact. A scuffle ensued. The person accompanying the victim was trying to help him fight the others. To Barber, it seemed as if all four males began fighting. Ten seconds or less after she first observed the males, Barber heard at least two to three gunshots in very quick sequence. Barber thought all four men were upright when the shots were fired. She "gassed [it]" -- pressed her gas pedal -- and drove away. At that time, it appeared to her that all four men were "going to the ground." She had no idea who had fired the gun.
Dr. Mark Super, chief forensic pathologist for the Sacramento County Coroner's Office, performed the autopsy on Mayes and testified as an expert regarding autopsy results and findings. Mayes sustained gunshot wounds to the right arm, right shoulder and right hip. He also had abrasions on both knees, on his left palm, and above his temple, which had occurred at or about the time he received the other injuries and which could have occurred around the time of his death or hours before. Mayes also had abrasions around the knuckles of his right hand. Dr. Super opined that the abrasions to Mayes's knees were "fairly characteristic of somebody just falling down on their knees," and the abrasions to his knuckles were consistent with Mayes putting out his hand during the fall. Dr. Super opined that the abrasion to Mayes's head was the result of his head impacting a broad surface such as the ground or a wall or something like that. The abrasions were also consistent with Mayes having been involved in a physical altercation, but Dr. Super opined that bruising to the hand is more common than abrasions to the hand in that scenario, and Mayes did not sustain any bruising.
The bullet that struck Mayes's right arm entered his forearm on the pinky finger side below the elbow, traveled in a straight line anatomically upward into his upper arm, and exited near his right armpit. Dr. Super opined that, given the bullet's path, Mayes's arm had to have been away from his body and his elbow had to have been bent somewhat backward, as if throwing a ball. Otherwise, the bullet would have entered his chest.
The gunshot wound to Mayes's right hip entered from the outside of his hip and exited on the inside of his right hip, traveling on a downward and slightly back-to-front path.
The gunshot wound to Mayes's right shoulder was fatal. It entered at the top of Mayes's shoulder close to the base of his neck and traveled anatomically straight down in a direction toward his feet. The bullet path was from right to left, not significantly frontward or backward. The bullet traveled behind his collarbone, struck his right lung, traveled through his heart, passed between two ribs, and came to rest in the front left portion of his chest. The ...