APPEAL from a judgment of the Superior Court of Los Angeles County, George Genesta, Judge. (Los Angeles County Super. Ct. No. KA092630)
The opinion of the court was delivered by: Manella, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Appellant Gonzalo Alarcon was convicted of attempted murder and shooting at an occupied motor vehicle. He contends the judgment must be reversed due to inadequacy of the evidence, instructional error, and the admission of irrelevant and inflammatory evidence. In the published portion of this opinion, we reject appellant's contention that under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), the gun enhancement allegations in the accusatory pleading required the trial court to instruct the jury regarding assault with a deadly weapon as a lesser included offense of attempted murder. In the unpublished portions of the opinion, we reject his remaining contentions. We therefore affirm.
RELEVANT PROCEDURAL BACKGROUND
On February 2, 2011, an information was filed charging appellant with the attempted willful, deliberate, and premeditated murder of Javier Partida (Pen. Code, §§ 187, subd. (a), 664), and with shooting at an occupied vehicle (Pen. Code, § 246).*fn2 Accompanying the counts was an allegation that appellant caused great bodily injury to Partida by personally and intentionally discharging a handgun (§ 12022.53, subd. (d)), together with other gun use allegations (§12022.53, subds. (b), (c)). In addition, the information alleged that appellant had suffered one prior felony conviction for purposes of section 667, subdivision (a)(1); had served one prior prison term for purposes of section 667.5, subdivision (b); and had two convictions for purposes of the "Three Strikes" Law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Appellant pleaded not guilty and denied the special allegations.
A jury found appellant guilty as charged and found the gun use allegations to be true. Appellant waived a jury trial on the prior conviction allegations. After dismissing one of these allegations, the trial court found the remaining prior conviction allegations to be true. Appellant was sentenced to a total term of 49 years to life.
Beginning in May 2009, appellant had a brief relationship with Erika Horta. Horta sometimes called appellant, "Chalo." In July 2009, when Javier Partida began dating Horta, he saw appellant, who lived near Horta. Partida also saw pictures of appellant on Horta's phone.
Regarding the offenses charged against appellant, Partida testified that after he began dating Horta, he took up residence in her house, which she shared with her parents. In May 2010, when Partida returned from a trip to Las Vegas, Horta's mother told him that Horta had not come home the night before. Unable to contact or locate Horta, Partida left the house and took his belongings with him.
The next day, May 24, 2010, at 5:00 or 6:00 p.m., Partida parked a short distance from the house and drank beer. Soon afterward, he saw a Nissan Altima enter the parking lot of a nearby school. Partida could not see the driver. When Partida observed Horta leave the Nissan through a passenger door, he walked up to the Nissan and threw a beer bottle at it. Although the bottle hit the driver's door, the driver did not get out of the Nissan. Instead, the car drove away.
Partida confronted Horta, who said that "a friend of a friend" had given her a ride. At Partida's urging, Horta entered his car, and they went for a drive, during which he attempted to reconcile with her. When she asked him to take her home, he drove back to the school parking lot near her house, stopped his car, and continued to talk to her.
While Partida and Horta conversed, the Nissan returned. Carrying a gun, appellant left the Nissan's passenger side, moved to the front of Partida's car, and asked Horta, "Who the fuck is this?" Partida answered, "That's my girl now. What's up?" Appellant walked to Partida's side of the car, where Partida's door was open, pointed the gun at Partida's head, and asked, "You want to throw beer bottles, motherfucker?" When Horta cried out, "No, Chalo, no," appellant re-aimed his gun at Partida's "midsection area," that is, his stomach or "privates." In anticipation of a shot, Partida moved his body up and lifted his leg. Appellant fired the gun, hitting Partida near his kneecap. Appellant then ran back to the Nissan, which left.
Accompanied by Horta, Partida drove to a nearby hospital emergency room. During the drive, Horta stated that she loved Partida, and explained that appellant had only given her a ride in the Nissan. After arriving at the hospital, they agreed to tell a false story regarding the shooting. When Los Angeles County deputy sheriffs interviewed Partida in the hospital, he said he did not know who had shot him. He described the shooting as an incident of road rage, and suggested that his assailant may have been a gang member. According to Partida, he lied because his parents were felons and his upbringing made him distrust police officers.*fn3 Partida was released from the hospital after a six-hour stay.
Following the shooting, Partida resumed his relationship with Horta until October 2010, when Horta began to treat him coolly. In early November 2010, after spying on her, he discovered that she was involved with appellant. In an effort to preserve his relationship with Horta, Partida left voice mail messages for her, sent her text messages, and communicated with her on MySpace. He acknowledged that his numerous messages often contained "hate-filled" language directed at her. On November 14, 2010, Partida gave a different report of the May 24 shooting at a Los Angeles County Sheriff's station. He identified appellant as the shooter, and told the investigating officers that he had lied in denying knowledge of the assailant. According to Partida, he failed to make the report earlier because he initially thought he should retaliate against appellant rather than be a "snitch," but he could not bring himself to shoot appellant. In addition, he wanted no trouble with appellant, whom he regarded as "a dangerous guy."
At trial, Horta provided a different account of the shooting and its aftermath. According to Horta, on May 24, 2010, she rode a bus home from the college she was attending. After getting off the bus, she began the short walk to her house when she saw Partida drive by. He stopped his car, left it, and threw a beer bottle at a passing car. He then accused Horta of seeing other people. Horta believed that he was drunk. She agreed to go for a drive in his car, during which they argued.
After two and a half hours, Partida stopped his car in the school parking lot near Horta's house. While Partida and Horta talked, Partida opened his car door. A man whom Horta did not recognize left a car parked nearby, walked to Partida's car carrying a handgun, and accused Partida of throwing bottles at cars. Standing approximately three to four feet from Partida, the man shot at him and fled. Later, at Partida's urging, Horta corroborated the gang-related account of the shooting that Partida initially gave to the deputy sheriffs at the hospital. However, when the deputy sheriffs accused her of being the shooter, she told them that Partida had been shot by the driver of the car Partida had hit with a bottle.
In September 2010, Horta stopped seeing Partida and resumed her relationship with appellant. Because Partida's hostile communications and other conduct frightened her, she sought a restraining order against him. After appellant was arrested, Horta told investigating officers that appellant had fired the gun that injured Partida. According to Horta, she identified appellant as the shooter at Partida's urging because appellant's arrest left her vulnerable to Partida. Horta acknowledged that she ...