(Super. Ct. No. 09F00466)
The opinion of the court was delivered by: Nicholson , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In this case, defendant, Kory Darty, a drug dealer, and a companion, gunned down a competitor and attempted to gun down three of his competitor's cohorts.
A jury convicted Darty of four counts of attempted murder (Pen. Code, §§ 664, 187, subd. (a) -- counts one through four).*fn1 As to count one, the jury found Darty personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)) and as to counts two, three, and four that he personally discharged and used a firearm (§§ 12022.5, subd. (a)(1), 12022.53, subds. (b), (c)).
Sentenced to state prison for 50 years to life, defendant appeals contending (1) the evidence is insufficient to support the attempted murder convictions in counts two, three, and four; (2) the trial court erred in denying his motion to suppress his identification from a photo lineup; (3) the court erred when it failed, sua sponte, to instruct the jury on attempted voluntary manslaughter as an included offense of the attempted murders charged in all counts; and (4) the prosecutor committed prejudicial misconduct. We reject the contentions and affirm the judgment.
In November 2008, defendant was living at the Azure Park Apartments (Azure Apartments) on Sky Parkway in Sacramento. Defendant sold marijuana and was known as "D," "KD," and "the Weed Man." Charles W., Donnell A., Sidney W., and Jonathan F. (all teenagers) hung around the Azure Apartments and also sold marijuana.
In the early evening on November 18, 2008, Charles, Donnell, Jonathan, and Sidney were at a market across the street from the Azure Apartments when, based upon a prior problem, Donnell slapped and/or punched Syra Drones, a young female who was involved with defendant. Drones was angry, crying, and threatened to tell defendant what had happened. She also threatened to return with a gun and then walked off into the Azure Apartments.
About 30 minutes after the fight with Drones, Charles and his group were standing in front of the Azure Apartments when two men walked toward them asking for some "tree" or "weed," meaning marijuana. Jonathan gave Charles a bag of marijuana to sell to them and Charles walked away toward the two. Charles recognized one of the men as defendant, having met him in Charles's aunt's apartment in the complex, but Charles did not know the other man.
Charles gave defendant's companion a bag of marijuana and as that man was handing Charles the money, defendant started shooting at Charles. Defendant's companion joined in the shooting and Charles was shot five to six times and fell to the ground. Charles had gunshot wounds to his abdomen, lower back, left arm, left leg, and bottom of his left foot.
Devon Washington, who knew defendant, Charles, Sidney, and Jonathan, testified that he came out of the market and saw Charles, Sidney, and Jonathan across the street in front of the Azure Apartments. Charles was talking to two men. Washington watched as the two men started backing away from Charles as they were shooting him with handguns. From the light generated by the muzzle flashes of the guns, Washington identified defendant, who was wearing a black sweatshirt with the hood up, as one of the shooters. Washington thought he heard "at least 20" gunshots.
Sidney, Jonathan, and Donnell testified that after the shooting started, they ran and heard the bullets striking the metal gate near them. Donnell testified that for a shooter to have shot at them after shooting at Charles, "[h]e would have had to turn the gun to be facing towards us." Neither Sidney, Jonathan nor Donnell was shot, and they escaped by running into the apartment complex.
Jason Lyle knew defendant from having purchased marijuana from him. The night of the shooting, Lyle called defendant and arranged to buy marijuana from him. Lyle arrived at the Azure Apartments, parked his car and walked over to defendant and bought marijuana from him. As the two were talking, defendant told Lyle to "hold on real quick" and walked away. As Lyle waited he heard gunshots. Defendant returned with a man in a wheelchair, and the two got into Lyle's car. Defendant was wearing gloves and had a gun, and Lyle thought he was wearing dark clothing. Defendant told Lyle, "Let's go." When Lyle just sat there, defendant and the other man got out of the car and left.
At trial, Donnell claimed he was unable to identify defendant as one of the shooters, but admitted that he had told a police officer that he "saw the people who were shooting." Detective Robert Stewart testified that in audio/video recorded statements, Donnell identified defendant as one ...