P. v. Wells

Filed 2/14/07  P. v. Wells CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

            Defendant was convicted of first degree murder.  At the time of the shooting, he lived in Richmond, but the shooting occurred in Vallejo.  Soon afterward, police reviewed videotapes from a toll bridge connecting the two cities and failed to locate defendant's car at the expected time.  Following the review, the tapes were reused rather than preserved as evidence.  Defendant asserts various errors associated with the failure to preserve these tapes.  In addition, defendant raises several instructional issues and contends that the trial court erred in failing to conduct a hearing into the reliability of expert testimony regarding the use of defendant's cellular telephone on the night of the shooting.  We affirm.

I.  BACKGROUND

            Defendant was charged in an information with one count of murder (Pen. Code, §  187, subd. (a)) with enhancements for personal use of a firearm.  (Pen. Code, §§  12022.5, subd. (a)(1), 12022.53, subds. (b), (c) & (d).) 

            Evidence presented at trial demonstrated that sometime before December 2001, a woman who was living with defendant, Christina Jones, began dating another man, Michael Sinay.  Over the course of a year, as Jones maintained relationships with both men, the men engaged in an escalating series of confrontations involving threats, violence, and property damage, most of which were initiated by defendant.  As one example among several, in October 2002, defendant pursued a car driven by Sinay in a high speed chase through Vallejo, Sinay's hometown, eventually rear-ending the car.  Soon after, Sinay drove with a friend, Michael Yokoi, to defendant's home in Richmond.  Throwing rocks, they smashed the windows of defendant's vehicle. 

            On December 21, 2002, Sinay was driving with Yokoi in the latter's white truck when they spotted defendant's parked vehicle in Vallejo.  Yokoi put his truck in reverse gear and backed into the car, denting it.  In an interview with police a few days later, Jones, who had driven defendant's car to Vallejo, said defendant was aware that a white truck had caused the damage to his car.  She also told police that defendant was so angry after the incident that she took her children to spend the night at her mother's house, rather than remain in the home she shared with defendant.  That night, Sinay saw defendant drive by his home. 

            Two nights later, on December 23, Sinay, Yokoi, Fred Heley, and Sinay's brother, James, were in Sinay's garage, which doubled as a recreation room.  Around 11:30 p.m., Yokoi, James, and Heley left the garage to go to Heley's house.  Yokoi split off to go to his truck, which was parked across and up the street.  James and Heley continued up the street and around the corner toward Heley's house.  James heard a vehicle start.  Then he heard gunshots behind him.  The two ran back toward Sinay's house, where they found Yokoi lying in the driveway.  As he ran up, James saw a black Ford Mustang drive away with its lights off. 

            Sinay's mother was wrapping Christmas gifts in a bedroom on the second floor when she heard the gunshots.  She got up, looked out the window, and saw a man in the driveway firing a gun.  He was wearing dark clothes and a beanie.  She opened the bedroom door and began shouting.  Sinay heard the gunshots while he was still in the garage.  He grabbed a telephone to call 911 and, as he called, stood on a stool to see out the garage window.  He saw a â€