(Super. Ct. No. 06F07649)
The opinion of the court was delivered by: Duarte , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) and found he had two prior serious or violent felonies (Pen. Code, §§ 667, subds. (b)-(i); 1170.12). Sentenced to 25 years to life in prison, defendant appeals.
He contends (1) the prosecutor committed misconduct in vouching for the credibility of witnesses and unfairly denigrating defendant's credibility; (2) the instruction on transitory possession erroneously required defendant to prove the defense by a preponderance of the evidence rather than merely to raise a reasonable doubt; and (3) his sentence of 25 years to life is cruel and unusual punishment. He also raises ineffective assistance of counsel in an attempt to prevent our finding of forfeiture where he failed to object in the trial court as required to preserve his claims. As we explain, we find neither error nor ineffective assistance of counsel. Accordingly, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In August of 2006, Clem Carney, also known as Toot,*fn1 was living with Joakima Gregg and her boyfriend Marcus Owens. Gregg sold methamphetamine out of the house.
Defendant was a good friend of Carney's. He came to Carney's house multiple times on August 20.*fn2 On one of the visits, he bought drugs from Gregg. He returned about 2:00 a.m. the next morning, August 21, with a shotgun. Gregg and two other women were in the living room playing dice. Carney and Owens were in the back bedrooms. Defendant pointed the gun at Gregg and demanded money, claiming she had "gypped him off [sic] of $10, or something like that." Carney came in the living room, followed by Owens. There was a struggle, and Carney was shot in the leg.
Defendant's wife was waiting in a car in front of the house. Defendant got in the car with the gun and left.
The police went to defendant's residence that same morning and spoke with his wife, who arrived at the house just after 3:00 a.m. She said defendant had not stayed there for two weeks. She told the police that she had seen defendant the day before, August 20, at about noon for an hour, and after that had not seen him again until he came over to the house and asked for a ride that same morning, August 21, at about 2:30 a.m. She had just returned from taking him to the area of Sacramento City College (Freeport and Sutterville Roads), where she had left him awaiting a ride to Stockton. The police searched defendant's residence, his wife's car, and the front yard at Carney's, but never found the gun.
Almost three years later, defendant was found in Houston, Texas. In his original interview, he told the police he was not at Carney's house the morning of the shooting. He instead claimed that he was fishing with his nephew (who was now at an unknown prison) and that the witnesses who had identified him as the shooter all owed him money and all were lying.
At trial, defendant admitted to visiting Carney's house twice on August 20, purchasing methamphetamine from Gregg through Carney, and snorting it while there. He added that while there, he had loaned Carney $10 and Carney had promised to pay him $15 back later that day. He then left and went fishing again, with his wife and others, and did not get home from fishing until about 9:00 p.m. He left his house with his wife and stepdaughter at around 2:00 a.m. the next morning, and decided to pick up the $15 owed to him.
He testified that when he went to Carney's house to ask for his $15, Gregg had a "crack attitude," meaning she did not want to deal with him, and she started screaming at him. Owens emerged from the back with a shotgun; defendant hit him twice in the jaw and took the gun. Carney came out yelling about a gun in his house. As they stood outside and talked, Carney tried to take the gun away from defendant and the gun fired, wounding Carney. Defendant left, unloading the gun and throwing it on the grass as he went to the car where his wife was waiting. He went to meet his ...