(Super. Ct. No. 10F01139)
The opinion of the court was delivered by: Blease , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Frank James Smith not guilty of attempted murder (Pen. Code,*fn1 §§ 664, 187) but guilty of the lesser included offense of attempted voluntary manslaughter (§§ 664, 192, subd. (a)). The jury also found true allegations defendant personally used a firearm (§ 12022.5, subd. (a)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)) in the commission of the attempted voluntary manslaughter. The trial court sentenced defendant to an aggregate term of 10 years in state prison, consisting of 3 years (the middle term) for the attempted voluntary manslaughter, plus 4 years for the firearm enhancement, and 3 years for the great bodily injury enhancement.
Defendant appeals, contending the trial court abused its discretion and violated his constitutional right to present a defense when it excluded evidence of prior threats and acts of vandalism by members of the victim's family. He also claims the trial court ran afoul of section 654 in imposing sentences on both the firearm and great bodily injury enhancements, and erred in relying on defendant's firearm use and planning in deciding to impose the middle term on the substantive offense.
We shall conclude that any error in excluding evidence of prior threats or acts of vandalism by members of the victim's family did not rise to the level of an unconstitutional deprivation of the right to present a defense, is reviewable under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), and is harmless. We shall further conclude that the trial court did not err in sentencing defendant. Accordingly, we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On February 10, 2010, Joseph Williams sprained his back at work lifting a heavy object and telephoned his mother to pick him up. Joseph's*fn2 mother stopped by her home on Conifer Way in North Sacramento on the way to drop off Joseph at his residence. Joseph did not live with his parents; he lived with his wife and two children. Joseph's teenage brothers Benjamin Williams and David Williams lived with Joseph's parents.
While preparing to leave his parents' home, Joseph heard his brother Benjamin arguing with defendant who lived next door. Joseph walked over to where the argument was taking place and told Benjamin to leave because he was making matters worse. Defendant went inside his home and Benjamin left.
Moments later, defendant and his brother Wayne came outside. Defendant had a .40-caliber handgun. Wayne shouted that Joseph had a knife and told defendant to shoot Joseph. Joseph raised his hands and told defendant he did not have a weapon, only an iPod. Joseph was holding an iPod in his right hand; he did not have a knife. Defendant shot Joseph in the abdomen while Joseph's hands were raised above his head.
Prior to that day, Joseph had never seen defendant or his brother Wayne. Members of Joseph's family had argued with defendant and members of his family in the past.
Defendant and his brother Wayne both testified on defendant's behalf. Wayne, who was 48 years old at the time of trial, testified that on the day of the shooting he was laying in bed when he heard yelling. He got up to see what was going on and saw Joseph running toward him stating, "I'll take on both you mother fuckers" while making stabbing motions with a knife with a six-inch blade. As Joseph approached defendant, defendant hit Joseph in the face, causing Joseph to take a couple of steps backwards. Joseph again came at defendant and attempted to stab defendant in the neck, and defendant shot Joseph in the abdomen. Wayne did not know where the knife went after the shooting. "It was in [Joseph's] hand and then it disappeared." He did not see anyone take anything from Joseph after the shooting.
Defendant, who was 40 years old at the time of trial, testified that he shot Joseph because Joseph attempted to stab him. He had just awakened and gone outside to smoke a cigarette when Benjamin rode by on a bicycle, and the two exchanged words. Thereafter, Joseph approached him and screamed for defendant to "quit fucking with my little brother." Joseph then pulled out a knife and threatened to kill everyone in defendant's house and to burn the house down. Defendant went inside his home, grabbed his gun off a DVD cabinet, and placed it in his pocket. His intention was to scare Joseph with it. While defendant reached for his gun, Joseph disappeared from view. At that point, Wayne came outside, and he and defendant walked into the street. As defendant stood there with his brother Wayne, he saw Joseph walking back toward his parents' house. Joseph then turned around, jogged back toward defendant and Wayne, and said, "I'll take on both of you motherfuckers." Joseph was agitated, pulled out his knife, and began "swing[ing] it around." At that point, Benjamin came around the corner, and Joseph said, "[N]ow it's two and two." Defendant placed his hand on the gun, which was in his ...