APPEAL from a judgment of the Superior Court of Los Angeles County, John A. Torribio, Judge. (Los Angeles County Super. Ct. No. VA106410)
The opinion of the court was delivered by: Johnson, J.
CERTIFIED FOR PUBLICATION
Affirmed with directions.
A jury convicted Jimmy Gonzalez of first degree murder, and the trial court sentenced Gonzalez to 80 years to life in state prison. Gonzalez appeals. We affirm.
An information filed July 9, 2009 charged Gonzalez and his co-defendant Sheena Santos with one count of first degree murder of Mikko Brooks, in violation of Penal Code*fn1 section 187, subdivision (a). The information alleged that a principal personally and intentionally discharged a firearm (a rifle) causing great bodily injury (§ 12022.53, subds. (d) & (e)(1)), personally and intentionally discharged a firearm (§ 12022.53, subds. (c) & (e)(1)), and personally used a firearm (§ 12022.53, subds. (b) & (e)). The information also alleged that Gonzalez had a prior serious or violent felony conviction (§ 1170.12, subds. (a)-(d), § 667, subds. (b)-(i)), a prior serious felony conviction (§ 667, subd. (a)(1)), and had served three prior prison terms (§ 667.5, subd. (b)). Gonzalez pleaded not guilty and denied the allegations. Gonzalez and Santos were tried together, with separate juries.
The murder of Mikko Brooks
At trial, Dayanara Barrett testified that shortly after 6:30 a.m. on January 9, 2008, she received a phone call from her friend Mikko Brooks. Brooks told Barrett it was an emergency, and asked Barrett to come over to Brooks's apartment in Bellflower. Barrett could hear music and other voices in the background.
Barrett dropped her son off at school and at about 8:00 a.m. went over to Brooks's apartment. Barrett noticed that the gate and the door to the apartment were open, and a computer keyboard was on the floor about four to five feet inside the door--that was unusual--as Brooks kept the door and gate locked and kept a very tidy house. Barrett entered the apartment and saw that the cabinets were open and the apartment looked as if it had been ransacked. She found Brooks in her bedroom, tied up in the corner of the room; when Barrett called out Brooks's name, she did not answer or move. Barrett immediately dialed 911 on her cell phone and ran out of the building, waiting with the neighbors until the police arrived five minutes later.
Marni Hernandez testified that at 8:30 a.m. on the same day, January 9, 2008, she was sitting in a car outside a medical office next to the apartment complex. Through her rearview mirrors, she saw a man with a shaved head come out of the apartment complex, wearing a black short-sleeved shirt. She could not see his face, but thought the man was young. She saw the man a second time, carrying a computer monitor. Hernandez then saw the man a third time, leaving the apartment complex carrying what looked like a VCR. A young woman was walking next to him; Hernandez could not see her face. Hernandez did not see where the man went. Hernandez saw Barrett walk into the apartment building about 10 minutes after she last saw the man walk out. Barrett came out yelling and asked someone for help; Hernandez stayed where she was, and later told the police what she had seen. At the preliminary hearing, Hernandez had testified that the woman and man were tall, and the woman was close to six feet tall, with long black hair.
Chasity Phillips testified that Brooks, the victim, was her cousin. Brooks had a young Hispanic girl living with her. Phillips met the woman (who was with a man) at Brooks's apartment about three days before Brooks's murder. Phillips recognized the woman as looking like someone in the courtroom.*fn2 Brooks called Phillips later and told her she had put the girl out. To the police, Phillips had identified a photograph labeled exhibit 6 as the woman, and a photograph labeled exhibit 7 as the man.*fn3  Brooks was not a gang member, although she had some problems in her life, and when she was younger Brooks had hung out with the Rolling 20's. She was street smart and could hold her own in a fight. Brooks had told her she let the woman stay in the apartment because she was pregnant. The woman did not look pregnant.
Los Angeles County Deputy Sheriff Lorena Rodriguez testified that she responded to a radio call on January 9, 2008, arriving at Brooks's apartment at 8:30 a.m. The security door was open, and Barrett was crying and talking to another deputy who had arrived earlier. Deputy Rodriguez noticed that the apartment was "messed up," and in the bedroom she found Brooks lying on her stomach, with her ankles bound to her wrists with a telephone cord. Brooks had a gray towel on top of her head, and there was blood where her head rested. The room had been ransacked. After determining that Brooks was dead, the deputies left the apartment and waited for homicide detectives.
Deputy Sheriff Boyd Zumwalt testified that as one of the investigating officers from the homicide bureau, he went to Brooks's apartment on January 9, 2008. He saw no signs of forced entry. A keyboard, CD or DVD cases, a cable television control box, and a DVD player were on Brooks's living room couch. In the bedroom was Brooks's body, trussed up. An expended cartridge case was in the corner of the room. Brooks had wounds to her face and a gunshot wound through her head. Brooks had a "20 Crip" tattoo, meaning the Rolling 20's gang out of Long Beach.
The entertainment center near Brooks's head was stained with blood, and an expended bullet was inside. A cushion of the bedroom couch also had blood stains on it, and there was blood on the towel on Brooks's head. When Brooks was rolled over, a misfired .30-caliber M1 carbine round was found stuck to her shirt. On a shelf of the entertainment center were a computer modem and mouse, and cables indicating that a computer had been there. The kitchen trash can contained a beer can and liquor bottles.
Santos's fingerprint was found on the interior front door of the apartment. No other fingerprints at the crime scene or on any other evidence were matched to anyone. Detective Zumwalt found Brooks's cell phone in her bedroom; she had received a call from Santos at 5:56 a.m. on January 9, 2008. A custodian of records for the cell phone company testified that Santos's cell phone made a two minute call to Brooks's cell phone at 12:40 p.m. on January 8, 2008, and made another call to Brooks's phone at 5:56 a.m. on January 9 for one minute. There were hundreds of calls made from Santos's phone to Brooks's phone before January 9.
The forensic pathologist in the coroner's office who conducted Brooks's autopsy determined that Brooks suffered multiple contusions and lacerations to the head, and she had died from a gunshot wound that entered the left back of her head, traveled upwards, and exited through the right top of her head. The wound was consistent with Brooks being shot by a rifle while on the ground, while the shooter stood back. The marks on Brooks's body from the ligatures used to tie her hands behind her back showed that Brooks was alive when she was tied up. Toxicology tests showed Brooks had alcohol and methamphetamine in her system.*fn4
The murder weapon and stolen items
Two or three days after Brooks's murder, Gonzalez's cousin Steven Puentes was at home in Long Beach when Gonzalez came over with Santos, whom Puentes had not met before. Puentes identified a photograph as showing Gonzalez as he appeared at the time, with his head shaved. Gonzalez carried an item about three feet long and wrapped in a towel into Puentes's bedroom, leaving it there. Gonzalez did not tell Puentes what the item was, or what he should do with it. Gonzalez then went out and brought Santos inside. She appeared to be about five feet two inches, and did not appear to be pregnant. Puentes, Gonzalez, and Santos sat around for about four hours, and then Gonzalez and Santos left together, saying, "we'll be back." Puentes found the item wrapped in a towel in his clothes hamper; he moved the towel and saw it was a rifle, with a magazine in it. Puentes took the rifle with him when he moved to Paramount, leaving it in the clothes hamper.
In March 2008, Detective Zumwalt recovered the rifle (wrapped in a jacket) and a magazine (wrapped in a sock) from Puentes's hamper. There were no bullets in the gun but there were bullets in the magazine.
A Los Angeles County Sheriff's firearms expert testified that the rifle, a semi-automatic .30 M1 carbine, was operable. The bullets found at the scene and the expended cartridge found stuck to Brooks's body had been cycled through the M1 carbine. The shooter had fired through the towel found at the scene, from more than two feet away.
On January 12, 2008, three days after Brooks was killed, a Long Beach police officer pulled over a blue Chevy Cobalt for speeding and running two stop signs. Santos was the driver, and Gonzalez was the passenger. The car was impounded. Detective Zumwalt searched the car and found a computer monitor behind the right passenger seat, and under the carpet in the trunk was a computer tower registered to Brooks.
Jailhouse informant testimony
Roberto Andrade testified that he had been in custody in the Los Angeles County jail since April 29, 2009, and had also been in the jail from January 28, 2008 to May 2008. Andrade had been in prison about six times. He had known Gonzalez since he was about 10 or 11 years old; they grew up in the same neighborhood. Andrade was a West Side Longo member with the moniker PeeWee; Gonzalez was in the same gang, with the moniker Indio. Beginning in 2007, Andrade became an informant for the Long Beach Police Department, with Officer Luke Everts as his contact. He had been paid between $5,000 and $6,000 for the information he had given, and also had received leniency in return. For his testimony in this case, he was to receive a lesser sentence on his current conviction of second degree robbery.
In March 2008, Andrade and Gonzalez shared a jail cell. Andrade knew from Officer Everts that a black woman had been shot in Bellflower, and Gonzalez was "paranoid" because "he had shot some girl in the head in Bellflower." He told Andrade he shot the woman in the head as she was on the floor. Gonzalez had been drinking, smoking meth, and hanging out in her apartment, and the woman had asked him and others to leave after she saw the gang tattoo on Gonzalez's head. He told the rest of the group to wait in the car, and then shot the woman in the head because she was related to Insane Crips. Gonzalez told Andrade he used a M1. Gonzalez told Andrade that he had hogtied the woman first. After he killed her, he put her in a closet and sprayed something that smelled good (Andrade said, "I guess to try to wipe down the prints") as he left the house.
Andrade testified that Gonzalez had a big Westside Longo tattoo on the back of his head. He identified a tattoo shown in exhibit 55 as similar to the tattoo on Gonzalez's head. Gonzalez told Andrade that because the Crips and the Longos were rivals, he wore a ...