(Super. Ct. No. CRF086038, CRF064539, CRF073015)
The opinion of the court was delivered by: Raye , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A simple sale of marijuana deteriorated into attempted murder and robbery when defendant Anthony Ryan Vasquez shot Pablo S. in the chest. An information charged defendant with attempted murder, second degree robbery, assault with a firearm, and attempting to dissuade a witness. (Pen. Code, §§ 664/187, subd. (a), 211/212.5, subd. (c), 245, subd. (a)(2), 136.1, subd. (a)(2).)*fn1 A jury found defendant guilty of second degree robbery, assault with a firearm, and attempting to dissuade a witness. The court sentenced defendant to five years in state prison for the robbery, seven years to life for attempting to dissuade a witness, and 25 years to life for the section 12022.53, subdivision (d) enhancement. Defendant appeals, arguing (1) insufficient evidence supports his robbery conviction, (2) instructional error, (3) insufficient evidence supports the jury's finding that he intentionally discharged a firearm, (4) ineffective assistance of counsel, (5) the court erred in denying his request to strike the gang enhancement, and (6) the information was improperly amended. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND Two Prior Cases
In July 2007 defendant pleaded no contest to two felonies: assault by means of force likely to cause great bodily injury and manufacturing, importing, or possessing for sale prohibited weapons (metal knuckles). (Super. Ct. Yolo County, case Nos. 064539 and 073015, respectively; §§ 245, subd. (a)(1), 12020, subd. (a)(1).) Defendant was admitted to probation for a period of four years and served 180 days in county jail.
Defendant was charged with violating his probation in May 2008, and the court revoked probation in both cases.
In May 2008 defendant arranged to buy marijuana from Pablo S. Defendant pulled out a gun, the pair struggled, and defendant shot Pablo in the chest.
An information charged defendant with attempted murder (count 1), second degree robbery (count 2), assault with a firearm (counts 3 and 4), and attempting to dissuade a witness (count 5). In addition, the information alleged as to all counts that the crimes were committed for the benefit of a criminal street gang, and that defendant personally discharged a firearm, causing great bodily injury, as to count 1. (§§ 186.22, subd. (b)(1), 12022.53, subd. (d).) As to counts 1, 2, and 3, the information alleged that defendant personally inflicted great bodily injury, and as to counts 3 and 4, that defendant personally used a firearm. (§§ 12022.7, subd. (a), 12022.5, subd. (a); Super. Ct. Yolo County, case No. 086038.)
Defendant entered a plea of not guilty. The following evidence was introduced at trial.
The Incident. Pablo sold marijuana and cocaine. He received a call from defendant, who wanted to buy marijuana. They agreed to meet at an apartment complex for a "stop and go" transaction; defendant was to purchase a quarter pound of marijuana.
Pablo, his girlfriend M.L., and his brother Julian drove to the assignation in Julian's car, a Chevy Tahoe. As they arrived, they saw defendant walking down the stairs. Pablo told defendant to get into the car and defendant complied, sitting in the back seat next to M.L. Pablo's brother sat in the driver's seat with Pablo next to him.
Pablo asked defendant to "show [him] some money," and defendant asked to see the marijuana. The marijuana was packed in two bags; Pablo placed one of the bags on the car's center console.
Suddenly, defendant pulled out a gun and demanded that Pablo give him everything. Pablo reached for the bag of marijuana in defendant's hands and the two struggled.
Defendant shot Pablo in the chest. Pablo recalled seeing the gun and being blinded by a flash, but he did not hear anything. Pablo drifted in and out of consciousness, but he remembered defendant jumping out of the car and running away. Pablo's brother drove to the hospital, where Pablo was treated for life-threatening injuries.
M.L. testified she saw defendant reach over and grab the marijuana from the console. Pablo and defendant struggled over the drugs, and defendant pulled out a gun, shooting Pablo.
As defendant was getting out of the car, M.L. grabbed his shirt. Defendant pointed the gun at her and got out of the car. Pablo's brother drove them to the hospital. Later, a woman confronted M.L., told her not to testify, and beat her up.
Other Witnesses. Bryanna C., eight years old, lived with her mother in the apartment complex where the shooting occurred. One night she heard something that sounded like fireworks and saw a spark. Bryanna looked out her window and saw a man standing a few feet away from a truck, pointing something at another person who was standing closer to the vehicle. She ran and told her mother someone had been shot.
Although Bryanna described the man to officers after the shooting, she could not identify defendant at trial. Bryanna told the police three days after the incident that she heard a pop, looked out the window, and saw a man pointing a gun at someone's head. The man ran away. She identified defendant in a photo lineup as the man with the gun.
The night of the shooting, Kristine Stapleton hosted a party nearby. Stapleton was a friend of defendant but could not recall at trial if he was at the party. However, Stapleton had told police that defendant, who was drunk, went outside around 9:00 p.m. to "handle something." Stapleton heard a "pop," looked out, and saw defendant standing beside a black vehicle. There were some "Mexican guys" in the front seat. Defendant, yelling, waved a gun. He put the gun in his waistband and ran back into the apartment. Defendant told Stapleton, "I think I shot somebody."
At trial, Stapleton denied being threatened about testifying. However, prior to trial, Stapleton told an investigator that she had been threatened on three occasions about the case and that she did not want to testify.
Defendant's father, Ronald Vasquez, told the police that defendant's mother, Diana Dawson, had confided in him that defendant admitted shooting someone and needed a place to hide. At trial, Ronald Vasquez and Dawson denied defendant had made any such statements.
Subsequent Events. Officers found a .40 caliber Smith and Wesson expended cartridge on the floor of the Tahoe behind the passenger seat. An anonymous caller stated the victim had put a gun to the shooter's head.
While defendant was incarcerated, authorities searched a fellow inmate and found a letter containing defendant's name, with the jail's address as the return address. The letter, written that month, was addressed to defendant's mother and discussed threatening Stapleton and M.L. In the letter, defendant tells his mother, "let Debrahs sister know what the fuck and she better not fucking come to my trial or else . . . . And find out from Tasha or Steven where [M.L.] live she stay with her mom they know where their mom stays then let the homies know and if this shit going to trial and it aint lookin good and she snitchin, tell one my homies fuck they shit up cocktails and all or something. Cuz this shit needs to start changing for the best and not the fucking worst." (Sic.)
Gang Evidence. Officer Ronald Cordova, a gang expert, testified regarding the Norteno gang.*fn2 According to Cordova, agencies identify a person as a gang member through the validation process. Cordova had previously validated defendant as a member of the Norteno gang, noting defendant had gang tattoos, had been in the company of other gang members, displayed gang graffiti on personal items, and had been involved in gang-related crimes.
In Cordova's opinion, defendant's letter to his mother was consistent with gang activity, in that it was an attempt to intimidate a witness in the case. Cordova also believed defendant's crimes benefitted the Norteno gang.
Defense Case. Following the shooting, an officer received information that an anonymous person at the local high school had information about the incident. This person said "some guy" who was selling marijuana got shot, the shooter had been trying to steal the marijuana, and defendant was the shooter. According to this source, the victim pulled a gun and put it to defendant's head, then defendant shot the victim, who was in the front seat.
M.L. did not identify defendant as the shooter to anyone in law enforcement until she was in court in April 2009. When asked for an explanation, M.L. said she could not be sure and did not recognize defendant's mouth and mustache until she was in court.
A licensed private investigator testified it was very common for individuals selling drugs to arm themselves. The investigator also testified that if a person looked at a photo lineup for about 30 seconds, pointed to a photo, and then stated, "I think that's him," it would not be a positive identification sufficient to obtain a warrant. He also testified 75 percent of wrongful convictions are the result of false identification.
Verdict and Sentencing. The jury found defendant guilty on counts 2 (second degree robbery), 3 (assault with a firearm), and 5 (attempting to dissuade a witness) and found true the section 12022.53, subdivision (d) allegation as to count 2, the section 12022.7 allegations as to counts 2 and 3, the section 12022.5, subdivision (a) allegation as to count 3, and the section 186.22, subdivision (b) allegation as to count 5. The jury was unable to reach a verdict as to the remaining counts and enhancement allegations, and the trial court declared a mistrial as to those matters. The trial court also found defendant in violation of probation in case Nos. 064539 and 073015.
The court sentenced defendant to a determinate term of five years and an indeterminate term of 32 years to life in prison: on count 2, five years plus an indeterminate term of 25 years to life on the section 12022.53, subdivision (d) enhancement; and for count 5 and the section 186.22, subdivision (b) enhancement, a consecutive seven years to life. The court stayed the sentences on count 3, on ...