Opinion
NOT TO BE PUBLISHED
Sepulveda, J.
Defendant Yohan Perez Lopez was convicted of first degree murder accompanied by a special circumstance finding that he committed the murder while lying in wait. (Pen. Code, §§ 187, 190.2, subd. (a)(15).) The jury further found that defendant personally and intentionally discharged a firearm resulting in death. (Pen. Code, §§ 12022.53, subd. (d).) Defendant was also convicted of possessing methamphetamine for sale, based on evidence obtained in a search of his residence following the murder. (Health & Saf. Code, § 11378.) Defendant is serving a life sentence in prison, without possibility of parole.
On appeal, defendant claims: (1) there was insufficient evidence that the murder was committed while lying in wait; (2) testimony about firearms found at defendant’s residence, that were unrelated to the shooting, was wrongly admitted at trial; (3) defense counsel rendered ineffective assistance of counsel by agreeing to a joint trial of the murder and drug charges; and (4) the court improperly denied conduct credit for time spent in custody awaiting trial. We conclude that only the last point has merit. We modify the judgment to award the correct amount of presentence conduct credit and otherwise affirm the judgment.
I. Facts
A. Events preceding the shooting
Defendant had a grudge against the murder victim, Ryan Dunn, for reasons that are not entirely clear. In 1997, defendant and his girlfriend lived in Eureka, next door to Dunn’s girlfriend, Daisy Wilde. Defendant was 19 years old. Dunn was about 18 years old. A “strain” was created between defendant and Dunn when another neighbor fired shots at defendant’s apartment because of a dispute over a dog. Dunn was not “happy” about the shooting. This attitude may have been conveyed to defendant. Defendant told his girlfriend that he did not like Dunn, and defendant’s brother Santiago (who lived with defendant) offered to pay rent for Wilde if she kept Dunn away from her apartment.
Within months of the residential shooting incident, defendant and his girlfriend moved across town. Defendant’s bad feelings toward Dunn grew in October 1997, when defendant was robbed at his house, and defendant thought Dunn was the robber. Dunn’s girlfriend Wilde learned about defendant’s suspicions around December 1997, when she stopped by defendant’s house to visit his girlfriend and was confronted by defendant who was “really angry” and “yelling.” Defendant grabbed Wilde around the throat, strangled her, threw her against the wall, and demanded to know where his “stuff” was. Defendant put a gun to Wilde’s head and demanded that she go with him somewhere, perhaps to look for his stolen belongings, although this point is not clear in the record.
Around Christmas 1997, defendant spoke to Errica Finney, who was dating the victim’s brother Robert. According to Finney, defendant made death threats against both the victim and Robert. Defendant said something about coming from a big Mexican family and that it would be easy to kill Dunn. Defendant said: “ ‘That fuck will get what’s coming to him, ’ ” and “ ‘[t]hey don’t know who they’re fucking with.’ ” Defendant’s girlfriend also heard defendant say he was going to kill Dunn, and she knew that defendant and his cousin, Efren Delgadillo, owned guns.
B. The shooting
Defendant and his cousin shot and killed Dunn within weeks of defendant making those threats, on the night of January 4, 1998. On that night, Dunn had dinner with his girlfriend Wilde and Wilde’s daughter and the three of them later went to a video store to rent a movie. When they arrived, defendant and his brother Santiago were in the store with two women. Wilde later testified that she did not expect a dangerous confrontation, although she anticipated that “maybe words were going to be exchanged.”
Inside the store, defendant and Dunn had a “heated” and angry argument in which they exchanged “harsh words.” The men “kept going back and forth” and then defendant asked Dunn to step outside. Dunn said “okay” but Wilde intervened. Wilde stood between the men and told defendant “no, ” that Dunn was not going to step outside with him.
Defendant spoke to his brother Santiago, who then ran across the street from the video store to where there was a pay phone. Defendant told the two women who were with him to “ ‘get in the car, ’ ” which was a Toyota Camry. One of the women had driven the group to the video store, but defendant asked for the keys and drove back to his house with the two women. The house was only about one mile from the video store. The group had left defendant’s cousin, Delgadillo, at the house when they went to the video store. Defendant drove from the video store to his house “like a bat out of hell.” A woman in the car with defendant testified that defendant drove “[v]ery fast. Very crazy. In a hurry, ” and that she was “very frightened” as they sped through the streets with tires screeching around corners.
When they arrived at the house, defendant began speaking in Spanish with his cousin, Delgadillo, and the men left the frightened women in the living room to go into a back bedroom. The men were gone for only about a minute. Delgadillo then placed a gun in his belt, and the men “quickly” left the house. A woman familiar with defendant, Santiago, and Delgadillo testified that Delgadillo was “the more [sic] dominating of the three men, ” “aggressive, ” and the likeliest to “be the leader in a crisis.”
Meanwhile, Dunn, Wilde, and Wilde’s child remained at the video store after defendant and his group left. Wilde heard defendant drive away from the parking lot and thought “it was all over.” But Wilde soon heard the car, which had a loud muffler, return to the area. This time, however, the car drove through the parking lot and went to a side street. Dunn or Wilde remarked: “ ‘Oh it sounds like they’re back.’ ” Dunn told Wilde that he was going outside. At trial, Wilde was asked about Dunn’s state of mind when Dunn went outside. Wilde said: “In my mind it was-I mean it was okay, they’re back, let me take care of this before you guys have to walk outside. Let me try to talk to them type thing. It just seemed like he was I’ll be right back type of thing.”
From inside the video store, Wilde heard “a lot” of gunshots along the side of the building, and some people took cover. Wilde ran over to the counter and left her daughter with the store clerk, whom she knew, and went outside. She found Dunn lying on the ground at the side of the building, fatally wounded. Dunn was shot three times: in his leg, abdomen, and head. Two bullets were later recovered from Dunn’s body: one from his head and one from his leg. The third bullet that struck Dunn passed through the side of his torso.
The pathologist who performed the autopsy died before trial. A deputy coroner assisted in the autopsy and testified at trial concerning his observations, as well as about diagrams and photographs from the autopsy. A police detective was also present at the autopsy and testified about his observations. On appeal, defendant raises no objection to the testimony concerning the autopsy.
C. Forensic evidence
The police responded to the scene of the shooting around 9:30 p.m. Evidence was collected, and forensic experts later analyzed the evidence and made several significant findings. First, the two bullets recovered from Dunn’s body were fired from different guns. The bullets were both “nominal.38 caliber which includes nine millimeter” but the groove impressions on the recovered bullets differed. Second, ammunition cartridge casings recovered from the crime scene indicated that there were at least two shooters, and they fired at Dunn from a distance. A clump of eleven brass-colored casings fired by one gun were found close together near the sidewalk on the east side of Union Street, across a two-lane street from where Dunn’s body was found. Two silver-colored casings from a different gun were found in the middle of Union Street, about 186 feet from Dunn’s body. Third, the shooter across Union Street was stationary as he fired multiple rounds, as indicated by the close proximately of the casings to each other. The shooter stood at the corner of a large building across Union Street, near shrubbery, according to the testimony of a ballistics expert and a photograph of the scene. Fourth, the casings recovered from across Union Street were consistent with a Beretta handgun. Fifth, the bullet removed from Dunn’s head had impressions similar to the casings recovered from the middle of Union Street and distinct from the casings recovered from across Union Street. Sixth, there were low bullet strikes near Dunn’s body, which were consistent with shots being fired after Dunn had fallen to the ground. Seventh, there was no indication that Dunn ever returned fire. The police searched for return bullet strikes at the location of the shooters but found none. No casings were recovered near Dunn’s body. Dunn’s girlfriend said he owned a single gun, and that gun was found by the police during a search of his apartment on the night of the shooting. Also, Dunn was reportedly right-handed, and he had a large, stiff plastic cast over sutures on his right hand on the night he was shot. A gunshot residue test found no residue on Dunn’s right hand and only six microscopic particles of lead on his left hand. A defense expert conceded that the small number of lead particles was equally consistent with bullet strikes occurring near Dunn or with contamination at the crime scene as with discharge of a firearm.
D. Events following the shooting
Events following the shooting added to the evidence of defendant’s guilt. A resident in the area of the video store was out for a walk on the night of the shooting when he heard nine or ten gunshots and, soon after, saw a Toyota Camry “racing down [the] street.” The street was about nine blocks from the video store. The car came to a sudden stop and “[t]hree Hispanic males” exited the Camry and rushed down Spring Street on foot. Another neighbor also saw the men, and later identified defendant as one of the men from a photographic lineup. The witness said she was 99.9 percent certain of the identification. The police impounded the Camry, which was registered to defendant. A vehicle search found photographs of defendant with his girlfriend, and defendant’s fingerprint was located on the driver’s side front door handle. The police also noted that the Camry’s muffler was “very loud.”
Defendant, his brother Santiago, and his cousin Delgadillo went to a friend’s house on Spring Street and asked for a ride. Santiago said “they may have shot somebody.” The friend, Carrie Black, gave the three men a ride across town to McFarlan Street. Timothy Myers lived on a street intersecting McFarlan Street. Defendant and his brother and cousin went to Myers’s house, and defendant asked for a ride to Sacramento. Defendant was “nervous.” He told Myers that he had “problems going on” and that “someone was looking for him.” On the drive to Sacramento, Delgadillo said that they had a confrontation at a video store, and Delgadillo “emptied his clip” into a man until the gun jammed on the tenth or eleventh round. Delgadillo said he used a Beretta nine millimeter. Defendant said he fired a couple shots but did not know what damage he did.
Shortly after Dunn was killed, defendant spoke on the telephone to Finney, the girlfriend of Dunn’s brother Robert. Defendant said “how easy it was to catch up with Ryan [Dunn] so it would be just as easy to catch up with Robert.” Defendant also said that Robert should plan his own funeral.
The police searched defendant’s residence the day after the shooting and found over 40 grams of methamphetamine. Both Black and Myers, who assisted defendant in his escape, testified that they previously bought drugs from defendant. The police search also found a handgun, a rifle, ammunition, and two empty gun holsters. Defendant was not apprehended until October 2007, when the police stopped him in the Modesto area for driving while intoxicated. Defendant gave a false name to the arresting officer. At the time of trial, both defendant’s brother and cousin were dead.
E. Prosecution and defense theories at trial
The prosecution argued to the jury that the evidence showed a calculated ambush. The prosecutor said defendant and his accomplices “concealed the fact they were out there. They didn’t park in the [parking] lot They’re on the side of the building, hiding in the shadows, ” waiting and watching from the bushes “for an opportunity to act.” Defense counsel argued self-defense and relied on the presence of several lead particles on Dunn’s left hand to maintain that Dunn “fired the first shot of the gun fight that ended his life.”
F. Verdict and sentencing
The jury rejected the defense and convicted defendant of first degree murder accompanied by a special circumstance finding that he committed the murder while lying in wait. (Pen. Code, §§ 187, 190.2, subd. (a)(15).) The jury further found that defendant personally and intentionally discharged a firearm resulting in death. (Pen. Code, §§ 12022.53, subd. (d).) Defendant was also convicted of possessing methamphetamine for sale. (Health & Saf. Code, § 11378.)
The court sentenced defendant to life without possibility of parole for the special circumstance murder, plus 25 years to life for the firearm enhancement. The court also imposed a two-year determinate term for possessing drugs for sale. The court awarded 479 days credit for actual time served but denied defendant conduct credit.
II. Discussion
As noted above, defendant claims on appeal that (1) there was insufficient evidence that the murder was committed while lying in wait; (2) testimony about firearms found at defendant’s residence, that were unrelated to the shooting, was wrongly admitted at trial; (3) defense counsel rendered ineffective assistance of counsel by agreeing to a joint trial of the murder and drug charges; and (4) the court wrongly denied presentence conduct credit. We discuss these claims in turn, beginning with a review of principles relating to the lying-in-wait special circumstance finding.
A. Evidence required to support a lying-in-wait special circumstance finding
Defendant argues, through appellate counsel, that the evidence was insufficient to support the jury’s finding that he committed the murder while lying in wait. “The legal standard is a familiar one: ‘On appeal we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]’ [Citation.] [¶] To prove lying in wait, the prosecution must prove there was a concealment of purpose, a substantial period of watching and waiting for a favorable or opportune time to act, and that immediately thereafter the defendant launched a surprise attack on an unsuspecting victim from a position of advantage.” (People v. Gurule (2002) 28 Cal.4th 557, 630 (Gurule).)
“The court must consider the evidence and all logical inferences from that evidence in light of the legal definition of lying in wait. [Citation.] But it is the jury, not the appellate court, which must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] Therefore, an appellate court may not substitute its judgment for that of the jury. If the circumstances reasonably justify the jury’s findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding.” (People v. Ceja (1993) 4 Cal.4th 1134, 1139, italics omitted.)
B. Survey of lying-in-wait cases
Our Supreme Court has affirmed lying-in-wait findings in varied circumstances, both as a theory of first degree murder and to establish a special circumstance. A “typical scenario of murder by means of lying in wait” is “waiting and watching until a victim falls asleep, ” as defendant did in the case of People v. Michaels (2002) 28 Cal.4th 486, 516.) In Michaels, defendant and an accomplice waited for two to three hours outside the victim’s apartment for the victim to go to sleep so “the killing would be a ‘little less noisy, ’ ” and then slipped in for the attack. (Ibid.) The court found substantial evidence supported the jury’s special circumstance finding. (Id. at pp. 516-517.) But a sleeping victim is not the only scenario that will support a lying-in-wait finding. A review of lying-in-wait cases demonstrates that the evidence presented here is more than enough to support the jury’s verdict.
First degree murder by means oflying in wait, “the functional equivalent of proof of premeditation, deliberation and intent to kill” (People v. Ruiz (1988) 44 Cal.3d 589, 614), is different from the special circumstance of intentionally killing while lying in wait, and may be established on lesser evidence. (People v. Ceja, supra, 4 Cal.4th at p. 1140, fn. 2.) Nevertheless, both types of lying-in-wait cases are instructive concerning the basic elements of a surprise attack after a period of watching and waiting. (Ibid.; see Peoplev. Poindexter(2006) 144 Cal.App.4th 572, 580, fn. 10, 585, fn. 21.) Our survey of lying-in-wait cases thus includes both types of cases.
In Gurule, the evidence showed that defendant and an accomplice (Mark Garrison) planned to rob a service station, picked a time (early morning) when fewer people would be about, and determined the victim (a station attendant) was alone. (Gurule, supra, 28 Cal.4th at pp. 582, 630.) “Garrison dropped defendant off across the street before driving his Cutlass into the station. Garrison paced around the station, helping customers top off their tanks so as to hasten their departures, leaving the victim alone. Garrison engaged the victim in a conversation about fixing the Cutlass, pretending he needed auto repairs. At some point, he and the victim entered the service bay. While Garrison and the victim were talking, defendant entered the area unnoticed, surprised the victim with a headlock from behind, and displayed the knife. After defendant and Garrison obtained the money, defendant killed the victim.” (Ibid.) The court concluded that “[t]he concealment of defendant and Garrison’s deadly purpose was obviously shown by this evidence. That Garrison waited, trying to hurry customers out of the station, and that defendant hung back, waiting for a time to strike, amply satisfy the requirement of a substantial period of watching and waiting. Once defendant and Garrison were inside the station, the victim had no reason to believe defendant posed a threat to his life, assuming he was aware of defendant’s presence at all. Once the victim was surrounded, defendant attacked suddenly from behind.” (Id. at pp. 630-631.) The court held there was “credible and substantial evidence supporting the jury’s finding that defendant killed after lying in wait, ” and thus was guilty of first degree murder. (Id. at p. 631.)
In a case upholding a lying-in-wait special circumstance finding, defendant passed a couple of hikers on a park trail, then proceeded to an observation deck where he peered with binoculars toward the trail. (People v. Carpenter (1997) 15 Cal.4th 312, 345, 388-389, superseded by statute on other grounds as recognized in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107.) The hikers were returning along the trail when defendant confronted them with a gun. (Carpenter at p. 345.) The court concluded that “a jury could reasonably infer that defendant concealed his purpose, waited and watched for an opportune time to act, and then, when his victims reached an isolated spot where no help could be expected, made a surprise attack from a position of advantage.” (Id. at p. 389.)
The court upheld a lying-in-wait first degree murder conviction upon evidence that defendant, an estranged live-in boyfriend of the victim, sat for several hours outside her new residence in a truck before going to the front door to return her clothes and to ask her to come outside with him. (People v. Ceja, supra, 4 Cal.4th at pp. 1139 fn. 1, 1142-1143.) Defendant and the victim went to the front yard and spoke together for five minutes or more before the victim cried out for help. (Id. at pp. 1140-1142, 1145.) As fellow residents ran to her aid, defendant shot the victim three times with a loaded firearm he had concealed on his person. (Id. at pp. 1138, 1143.) The court found “ample evidence to support all the elements of lying-in-wait murder, ” and reversed a court of appeal opinion that had faulted the evidence as showing nothing more than a spur of the moment killing during an argument. (Id. at pp. 1142-1143, 1146.) The high court noted that, although other interpretations of the evidence were possible, a jury could reasonably conclude that defendant concealed his purpose by returning the victim’s clothes as a ruse to gain access to the victim and to kill her. (Id. at p. 1143.) The court also discerned evidence of watching and waiting for an opportune time to act in the hours defendant spent sitting outside the residence, and his maneuvering her into “the relative isolation of the front yard before he struck.” (Ibid.) The element of a surprise attack from a position of advantage was supported by evidence that defendant waited until he had the victim alone, and the court found that the victim’s screams for help indicated that she was taken by surprise. (Id. at pp. 1143-1144.) The court rejected the argument that the shooting was not immediately preceded by the lying in wait because five minutes or more of conversation transpired. (Id. at p. 1145.) The court concluded: “As long as the murder is immediately preceded by lying in wait, the defendant need not strike at the first available opportunity, but may wait to maximize his position of advantage before taking his victim by surprise.” (Ibid.)
A lying-in-wait special circumstance finding was upheld where defendant, a prison inmate, “loiter[ed] in the hall for a few minutes” before he approached another inmate from behind and stabbed the victim to death, either in retaliation for a prior slur or as a planned gang attack. (People v. Roberts (1992) 2 Cal.4th 271, 294-295, 322-323.) The court noted that “no physical concealment” is required to establish lying in wait; it is enough to “take the victim unawares” even if the victim saw his attacker standing in the open. (Id. at p. 323.)
In People v. Edwards (1991) 54 Cal.3d 787, 804-805, 826, defendant drove his truck slowly toward two girls at a camp site, turned his truck around, and then followed them for about a quarter mile as the girls walked to a picnic spot for lunch. As the girls were walking, defendant drove alongside them, stopped, and said, “Girls.” (Id. at pp. 804-805.) Defendant immediately fired two shots from a pistol, first at one girl, then at the other. (Id. at p. 805.) The court found sufficient evidence to support the lying-in-wait special circumstance finding. (Id. at pp. 825-826.) On the element of concealment of purpose, the court observed: “Defendant drove alongside the victims where there were no witnesses and where they would be most vulnerable. While they were completely unsuspecting, he called to them so they would look his way and become ideal live targets. After gaining this position of advantage, he shot and killed.” (Id. at p. 825.) “An ambush or a ‘situation where the victim is taken unawares and by surprise, ’ combined with an intent to kill, necessarily places the intended killer in a position of advantage.” (Id. at p. 823.) The court also found evidence of a substantial period of watching and waiting in the “minutes” that elapsed during the quarter mile that defendant followed the victims. (Id. at p. 826.) The court noted that “[w]e have never required a certain minimum period of time, only a period not insubstantial.” (Id. at p. 823.)
A lying-in-wait special circumstance finding was also upheld in People v. Morales (1989) 48 Cal.3d 527, 553-559. In Morales, defendant and his accomplice plotted to kill a woman, and the accomplice asked her to accompany them in a car to a shopping mall to select a gift for a friend. (Id. at pp. 540-541, 554.) After the accomplice had driven through town to a more isolated location, defendant reached from the back seat to the victim in the front passenger seat and started strangling her with his belt. (Id. at p. 554.) The victim cried for help from the driver as defendant completed his attack with a hammer. (Id. at p. 554.) The court found sufficient evidence of concealment to obtain a position of advantage “based on defendant’s watchful waiting, from a position of advantage in the backseat, while the car was driven to a more isolated area, and his sudden surprise attack, from behind and without warning, on [the] victim.” (Id. at p. 555.)
In People v. Harrison (1963) 59 Cal.2d 622, 625-626, defendant had an angry and threatening telephone call with his estranged girlfriend and, 30 minutes later, confronted her on the street with a knife as she left her apartment building with her mother to go to church. The victim’s son had left the apartment ahead of his mother and grandmother, and neither he nor his grandmother saw defendant until he appeared out of the darkness to attack the victim. (Id. at pp. 625-626, 630.) The court concluded that “the jury could reasonably have inferred that the killer was in hiding, as no one saw him before the murder, and that he was waiting for [the victim], as he immediately attacked her when she left the apartment house.” (Id. at p. 630.)
C. Substantial evidence supports the jury’s lying-in-wait special circumstance finding
On appeal, defendant’s counsel argues that the evidence fails to show murder while lying in wait-only “a deadly duel” between mutual combatants. The argument relies on a creative reading of select facts, which is not an approach we may indulge. As noted above, we must “ ‘review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence... from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” (Gurule, supra, 28 Cal.4th at p. 630.) “[A]n appellate court may not substitute its judgment for that of the jury. If the circumstances reasonably justify the jury’s findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding.” (People v. Ceja, supra, 4 Cal.4th at p. 1139.)
Here, substantial evidence supports the jury’s finding that all the elements of lying in wait were met: “a concealment of purpose, a substantial period of watching and waiting for a favorable or opportune time to act, ” and “a surprise attack on an unsuspecting victim from a position of advantage” launched immediately thereafter. (Gurule, supra, 28 Cal.4th at p. 630.) In the weeks before the shooting, defendant had threatened Dunn’s life. On the night of the shooting, defendant had a chance encounter with Dunn in a video store, who was on a date with his girlfriend and accompanied by the girlfriend’s young daughter. Defendant left his brother at the video store, sped home to collect his cousin and firearms, and returned to the video store for an attack upon Dunn. Defendant, upon returning to the location of the video store, did not go into the store to openly confront Dunn, nor did he park in the store parking lot where he would have been visible to Dunn. Instead, defendant drove to a side street. From the ballistics evidence and later admissions of the shooters, the jury could reasonably conclude that the cousin, Delgadillo, took a watchful position across Union Street while defendant waited down Union Street for Dunn to exit the store. When Dunn exited the store and went looking for defendant, he was immediately bombarded by gunfire from at least two directions. Delgadillo stood across a two-lane street at the corner of a building near shrubbery as he repeatedly fired shots. Defendant stood over 180 feet away, down a dark street where he, too, fired rounds at Dunn. One of those shots struck Dunn in the head. Bullet strikes near Dunn’s body suggest that the gunfire did not abate even after Dunn fell to the ground.
This evidence amply supports a finding of murder while lying in wait. Defendant and his cousin (and possibly his brother) concealed themselves by placing themselves outside the store at a distance from Dunn. There, they watched and waited for Dunn to exit the store and launched a sudden and surprise attack upon Dunn on the street. Defense counsel on appeal argues that there was no concealment because Dunn heard defendant’s car return to the neighborhood. Although Dunn heard defendant’s car return to the area, defendant did not park in the store parking lot but somewhere on a side street. Delgadillo stood across the street from the video store near shrubbery, and defendant stood over 180 feet down the street. The jury could infer that defendant concealed himself. (See People v. Harrison, supra, 59 Cal.2d at pp. 625-626, 630 [“the jury could reasonably have inferred that the killer was in hiding, as no one saw him before the murder, and that he was waiting for [the victim], as he immediately attacked her when she left the apartment house”].)
In any event, a defendant may be guilty of lying in wait if he conceals his purpose even if his physical presence is not concealed. (People v. Roberts, supra, 2 Cal.4th at p. 323.) “[N]o physical concealment” is required to establish lying in wait; it is enough to “take the victim unawares” even if the victim saw his attacker standing in the open. (Ibid.) “The element of concealment is satisfied by a showing ‘ “that a defendant’s true intent and purpose were concealed by his actions or conduct. It is not required that he be literally concealed from view before he attacks the victim.” ’ ” (People v. Sims (1993) 5 Cal.4th 405, 432-433.) Although Dunn knew defendant returned to the neighborhood, he did not know that defendant and his family members were standing outside in the dark with loaded guns waiting to pounce as soon as Dunn was within sight. Knowledge of a defendant’s presence and hostility is not akin to knowledge of a defendant’s murderous plan.
Nor is the element of a surprise attack negated by the fact that Dunn consciously went outside to confront defendant. His conduct does not, as counsel argues, prove an intention to engage in mutual armed combat. Dunn’s girlfriend Wilde testified that her impression of the situation was that Dunn went outside to “try to talk” to defendant before Wilde and her young daughter had to walk outside past defendant. A victim may be surprised by an attack, and lying in wait established, even where the victim consciously meets and converses with the defendant before the attack is sprung. (People v. Ceja, supra, 4 Cal.4th at p. 1145.)
Moreover, the only evidence of “a deadly duel” between mutual combatants, as defense counsel on appeal characterizes the encounter, is the negligible fact that six microscopic particles of lead were detected on Dunn’s left hand. As summarized above, the great weight of the evidence was that Dunn never possessed, much less discharged, a firearm on the night he was shot. It will be recalled that no ammunition casings were recovered near Dunn’s body. Of course, defendant is correct that no casings would have been left if Dunn had fired a revolver. But there was no revolver found at the scene of the crime. Dunn’s girlfriend said he owned a single gun, and that gun was found by the police during a search of his apartment on the night of the shooting. Also, Dunn was apparently right-handed, and he had a large, stiff plastic cast over sutures on his right hand on the night he was shot. The few lead particles on Dunn’s left hand were equally consistent with bullet strikes occurring near him or with contamination at the crime scene as with discharge of a firearm. The defense expert at trial conceded as much. There was certainly substantial evidence from which the jury could reasonably infer that Dunn was not a mutual combatant but the victim of an ambush.
D. Defendant was not prejudiced by the introduction of testimony concerning firearms that were located at defendant’s residence after the shooting
A police detective testified about a search of defendant’s residence conducted the day after the shooting. During the course of his testimony, the detective stated that the police recovered a handgun and rifle from the residence, along with ammunition, and two empty holsters. While the detective testified, an investigator with the district attorney’s office wheeled a cart into the courtroom with boxes containing the firearms that were the subject of the testimony. Cross-examination by defense counsel soon established that the recovered handgun and rifle were not the weapons used in the shooting of Dunn and, when the prosecutor offered the weapons in evidence during a court recess, defense counsel objected on relevancy grounds. The court asked the prosecutor to explain the relevancy of the evidence, and the prosecutor said “[p]ropensity to commit violence by use of weapons.” The court noted that propensity evidence is generally inadmissible and asked the prosecutor to expound upon his position. The prosecutor replied, vaguely, “[a]ccess to weaponry, your Honor.” The court ruled the evidence irrelevant and inadmissible. The firearms were not received in evidence. Defense counsel made no objection to the testimony about the firearms previously introduced and made no motion to strike the testimony.
On appeal, defendant argues that the detective’s testimony concerning the handgun, rifle, and ammunition was wrongly admitted and that either the court erred in failing to strike the testimony sua sponte when the testimony’s irrelevance became apparent, or defense counsel rendered ineffective assistance of counsel in failing to move to strike the testimony. Neither assertion has merit.
Defendant is correct in noting that evidence of a person’s character, including evidence of character in the form of specific instances of prior misconduct, is inadmissible to prove that defendant had the disposition or propensity to commit the charged offense. (Evid. Code, § 1101, subd. (a); People v. Falsetta (1999) 21 Cal.4th 903, 910-911.) Accordingly, “ ‘[w]hen the prosecution relies... on a specific type of weapon, it is error to admit evidence that other weapons were found in [the defendant’s] possession, for such evidence tends to show, not that he committed the crime, but only that he is the sort of person who carries deadly weapons.’ ” (People v. Smith (2003) 30 Cal.4th 581, 613.) But it is also true that a defendant’s possession of weapons is admissible when relevant to prove, not propensity, but a fact concerning disputed issues. (Id. at pp. 613-614.) Such evidence may be admitted when relevant to prove some fact (such as motive, intent, plan, or preparation), other than the defendant’s disposition. (Evid. Code, § 1101, subd. (b).) Arguably, there was some basis for admitting the evidence of defendant’s firearm possession to show defendant’s plan and preparation for killing Dunn or, at least, to substantiate the allegations charging defendant with possession of methamphetamine for sale. The possession of firearms in close proximity to a large amount of drugs is indicative of drug dealing. (See People v. Bland (1995) 10 Cal.4th 991, 1005 [“[d]rug dealers are known to keep guns to protect not only themselves, but also their drugs and drug proceeds; ready access to a gun is often crucial to a drug dealer’s commercial success.”) But the prosecution failed to articulate any basis for admitting the firearm evidence apart from propensity, and thus the trial court properly excluded the evidence.
It does not follow, however, that either the court or defense counsel erred in allowing the previously admitted testimony to stand. The testimony was short and mundane. Directing the jury to disregard the testimony may have been counterproductive in emphasizing testimony that otherwise had little impact. Moreover, any error in allowing the testimony to stand was not prejudicial given its cumulative nature. Evidence of defendant’s possession of firearms on several separate occasions was introduced at trial. A witness testified that defendant assaulted Dunn’s girlfriend with a firearm when defendant confronted the girlfriend with his suspicions that Dunn robbed him. Defendant’s own girlfriend testified that defendant possessed a firearm in the weeks leading up to the shooting. During his escape, defendant admitted to Myers that he fired shots at Dunn, and the defense at trial never denied defendant’s possession and use of a firearm, relying instead on a claim of self-defense. In the context of the trial as a whole, the detective’s limited testimony about firearms found at defendant’s residence was not prejudicial.
E. Defense counsel was not ineffective in stipulating to joint trial of the homicide and drug charges
The police obtained a search warrant of defendant’s residence as part of their investigation of the shooting. The police uncovered methamphetamine during the course of their search and called in officers from the drug task force. The drug task force officers found 28.7 grams of methamphetamine in a bedroom and an additional 14.9 grams of methamphetamine in the kitchen refrigerator.
Two arrest warrants were issued, one for homicide and one for drug offenses. Separate complaints were likewise filed, and separate preliminary hearings conducted on the homicide and drug offenses. The prosecutor later filed a single information that listed both case numbers and charged homicide and drug offenses. The court observed that “[i]t is unclear whether it was the intent of the People that the matters be joined or whether the matters are to be consolidated.” The court directed the prosecutor and defense counsel “to discuss the Information prior to the next court date.” Initially, it appeared that the homicide and methamphetamine charges would be separately tried but, as voir dire was underway, “counsel did agree to join the matters for purposes of trial, ” as noted in court minutes.
On appeal, defendant argues that defense counsel was ineffective in agreeing to a joint trial of the murder and methamphetamine charges. “In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it ‘fell below an objective standard of reasonableness [¶]... under prevailing professional norms.’ [Citations.] Unless a defendant establishes the contrary, we shall presume that ‘counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.’ [Citation.] If the record ‘sheds no light on why counsel acted or failed to act in the manner challenged, ’ an appellate claim of ineffective assistance of counsel must be rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ [Citations.] If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” (People v. Ledesma (2006) 39 Cal.4th 641, 745-746.)
Defendant has not provided us with the reporter’s transcript of the day the parties agreed to a joint trial, and the minute order memorializing the agreement provides no insight as to why defense counsel agreed to join the murder and methamphetamine charges for trial. Given this state of the record, defendant’s claim of ineffective assistance of counsel must be rejected because counsel may well have made a tactical decision that the court was likely to allow joinder or consolidation, making any opposition futile.
The Penal Code permits an accusatory pleading to “charge two or more different offenses connected together in their commission..., and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated.” (Pen. Code, § 954.) “Because consolidation ordinarily promotes efficiency, the law prefers it. ‘Joinder of related charges, whether in a single accusatory pleading or by consolidation of several accusatory pleadings, ordinarily avoids needless harassment of the defendant and the waste of public funds which may result if the same general facts were to be tried in two or more separate trials [citation], and in several respects separate trials would result in the same factual issues being presented in both trials.’ [Citation.] Thus ‘[a] defendant can prevent consolidation of properly joined charges only with a “clear showing of prejudice”....’ ” (People v. Ochoa (1998) 19 Cal.4th 353, 409.)
Defense counsel may have determined that the court was likely to allow consolidation of the murder and methamphetamine charges. Although the charges presented distinct elements, there was a significant evidentiary overlap. The methamphetamine was discovered during a residential search prompted by the shooting, and several witnesses presented testimony relevant to both the homicide and the methamphetamine charges. Separate trials would have resulted in some of the same factual issues being presented in both trials, making an order of consolidation possible and defense counsel’s opposition arguably futile.
In any event, defendant was not prejudiced even if we assume that counsel was deficient in agreeing to a joint trial. Defendant claims that most, if not all, of the evidence concerning drug dealing would have been excluded from a severed homicide trial and that a jury was less likely to convict defendant of murder if the jury never learned of his drug dealing. Whether, and to what extent, evidence concerning drug dealing would have been excluded from a trial limited to homicide charges is debatable. The determinative point here, however, is that the jury would have convicted defendant of murder even if the homicide charge had been tried alone and no methamphetamine evidence introduced at trial. The evidence of defendant’s murder of Dunn, committed while lying in wait, was overwhelming. It was not defendant’s methamphetamine dealing that led the jury to reject his self-defense claim on the homicide change but witness testimony and forensic evidence that amply demonstrated a murderous ambush.
F. Presentence conduct credit was wrongly denied
Defendant spent 479 days in custody before sentencing and the court properly credited him with that time against his prison sentence. The court, however, denied defendant presentence good conduct credit. The court relied upon Penal Code section 2933.2, which denies credit for those convicted of murder. As the People concede, the statute denying conduct credit to murderers applies only to murders committed after its operative date of June 3, 1998. (Pen. Code, § 2933.2, subd. (d); People v. Ly (2001) 89 Cal.App.4th 44, 47.) The murder here occurred on January 4, 1998, and thus defendant is entitled to conduct credit (of a limited amount) pursuant to Penal Code section 2933.1, subdivision (c). (People v. Ly, supra, at p. 47.) The parties agree that defendant must be awarded 71 days of conduct credits, in addition to 479 days of actual time served, for a total credit of 550 days. We will modify the judgment accordingly.
III. Disposition
The judgment is modified to award conduct credit of 71 days under Penal Code section 2933.1, subdivision (c), in addition to the 479 days credited for actual time served, for total presentence credit of 550 days. The trial court is directed to amend the abstract of judgment to state the correct amount of presentence credit and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
We concur: Reardon, Acting P.J., Rivera, J.