Filed 7/19/16 P. v. Lee CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C079734

                   Plaintiff and Respondent,                                     (Super. Ct. No. 14F00811)

         v.

WEBSTER LEE,

                   Defendant and Appellant.




         On February 3, 2014, defendant Webster Lee, suffering from bipolar I disorder
and in a manic phase, went on a crime spree. He forced a woman at gunpoint to tie up his
wife; he then beat his own wife for hours. He shot two people, threatened others at
gunpoint, carjacked one vehicle and stole another, and violently resisted arrest. A jury
found him guilty of 15 felonies, with multiple firearm and great bodily injury
enhancements, and then found him legally sane at the time of the shootings. The trial
court sentenced defendant to a determinate term of 30 years in state prison plus an
indeterminate term of 25 years to life.

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         On appeal, defendant contends it was error to admit his wife’s testimony at the
preliminary hearing because the People failed to exercise reasonable diligence in
obtaining her presence at trial. He contends there was insufficient evidence to support a
conviction of violent resisting because an officer first used unlawful force against him,
shooting him when he was unarmed. Defendant claims his sentences on count 8 (false
imprisonment) and count 15 (felon in possession of a firearm) must be stayed because
these offenses were part of an indivisible course of conduct. He argues there was
insufficient evidence to support the finding that he was legally sane as the jury could not
reasonably reject the evidence of his insanity. Finally, defendant requests a correction to
the abstract of judgment regarding the (stayed) sentence on count 12, to which the People
agree.
         We order the abstract of judgment corrected and affirm.
                                           FACTS
         Defendant’s Various Relationships
         Defendant has been married to Cynthia Lee since 1995; they have a teenage
daughter named Deaja.1 They lived in an apartment at 2390 Oakmont. Defendant also
had a girlfriend, Tanyia Harris. Cynthia knew of this relationship and had no problems
with it. At times, all four of them--defendant, Cynthia, Deaja, and Harris--lived together.
         Cynthia’s friend, John Anderson, lived in the apartment upstairs. (RT 296, 552)
Anderson lived with his daughter Regine; Regine’s friend, Iesha Fisher; and Fisher’s
young daughter. Fisher was Cynthia’s sister. Anderson’s son Christopher was the father
of Fisher’s child; he was defendant’s neighbor as well as Anderson’s, living in a duplex
behind the apartments. Christopher looked to defendant as an uncle.




1 Because many of the people we discuss share the same last name, we will at times refer
to them by first name.

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       Defendant’s Behavior Preceding the Crimes
       In the days before the shooting, defendant was not sleeping or eating and smelled
bad. He was very talkative, made little sense, and appeared to be “foaming at the
mouth.” He was watching “stress movies” and kept saying they (his family) were
immortal, meaning they were invincible. Harris (his girlfriend) told the police that
defendant was having a mental breakdown; Cynthia (his wife) thought he was an
“emotional wreck.”
       The night before the shooting, defendant called Harris and told her Cynthia was
“lost” and asked for help finding her. Harris told him Cynthia was out doing someone’s
hair. The next morning Harris went to defendant’s residence and found Cynthia there
asleep which “kind of threw [Harris] a bit” because defendant had been acting like
Cynthia was still missing.
       Later that day defendant wanted to watch a movie that was a “little satanic” about
the Illuminati. During the movie, the power went out twice and each time defendant
went outside to the breaker box. He was angry, loud, and obnoxious and said someone
was “messing” with the power. He said Christopher (his neighbor and quasi-nephew)
was outside by the breaker box.
       The Shootings and Assaults
       Defendant was crying and emotional. He wanted Cynthia, Deaja (his teenage
daughter), and Harris to sit on his lap and say they all loved each other. Harris and Deaja
did so, but Cynthia would not and wiggled out of the hug. Cynthia said, “[T]his ain’t no
love.” Defendant got angry and told Cynthia she must be “one of them.” He was talking
about people who he perceived to be after him.
       Defendant got a shotgun from Deaja’s room and pointed it at Harris. He told
Harris to tie Cynthia up. Defendant told her she must be “one of them” if she did not do
it. He threatened to shoot Harris if she did not tie up Cynthia. He held Cynthia down
while Harris tied her up.

                                             3
       Defendant then assaulted Cynthia. He banged her head on the ground, hit and
kicked her in the ribcage, and burned cigarettes on her leg. He choked her three times.
The assault lasted for hours. During the assault defendant was sweating and crying and
looked “destroyed.” Cynthia described defendant as “acting fucking retarded.”
       Harris recalled being in the bathroom after the assault. Defendant barged in and
picked up the gun which was then in the bathroom. Defendant pointed the gun at Harris
and told her “you must be one of them.” Later, Harris went in the kitchen and picked up
a knife. Defendant told her to put it down and she threw it in the sink. Harris stepped
towards defendant and he shot her in the shoulder. Defendant said he was going to jail.
       Defendant went upstairs to John Anderson’s apartment. He had a gun and
demanded keys to a Ford Explorer, threatening that he would shoot people. Defendant
was pointing the gun at Anderson, Regine (Anderson’s daughter), and Fisher (Cynthia’s
sister). Defendant said if the car did not work, he would kill everyone. Fisher handed the
keys to Regine who gave them to Anderson who handed them to defendant.
       From the window Fisher saw defendant shoot someone in the alley. She heard
more than one shot. Christopher (Anderson’s son) was in the alley, bleeding. Police later
found a trail of shotgun shells and blood outside the apartment. Christopher was treated
for shotgun injuries to his left side and a collapsed lung. He had shotgun pellets in his
kidney and near his spine. He spent 10 days in the hospital.
       Defendant told Harris (whom he had shot in the shoulder earlier) that he would
take her to the hospital. Deaja and Cynthia got in the back seat of Fisher’s truck;
defendant and Harris got in the front. Defendant still had the shotgun, but once on the
freeway he said he needed another gun. Defendant kept driving, passing several
hospitals; he said he did not trust Sacramento hospitals. Harris wanted out of the car and
undid her seat belt, but defendant put it back on. When he stopped for gas, none of the
women got out. Finally, defendant stopped in Concord and Cynthia and Harris got out.
Cynthia put the gun in a trash can. They went to a church where a man called an

                                             4
ambulance. Defendant drove off with Deaja. The police later found the shotgun in a
recycling bin.
       Cynthia was seen in the emergency room, presenting with the complaint of assault.
She changed her story as to who assaulted her, but was consistent that the assault
consisted of choking, brief loss of consciousness, being thrown to the ground and kicked
in the ribs. She had a significant headache and neck and chest pain. She had multiple
visible injuries, two inches of hair missing, and her left face and eye were bruised and
swollen. She had bruises and scratches on her neck and body. Harris had three surgeries
on her arm and at the time of trial still could not put weight on it.
       The Stolen Car and Violent Resisting
       Michele Latteri owned a white Ford Ranger with “Fleet Pride” on the side. That
day she stopped at Don’s Market, grabbed her ATM card and went inside, leaving her
keys in the truck. When she returned, the truck was gone. Latteri had left her iPhone in
her truck. Using the “find my phone” function, the police determined the phone was
traveling north on Highway 680 and then east on Interstate 80.
       California Highway Patrol Officers Scott Lander and Paul Willet were on duty that
day out of the Fairfield office, patrolling near Interstate 80 in separate cars. After 7:00
p.m. they received a be-on-the-lookout report for an armed and dangerous suspect driving
a white Ford ranger with “Fleet Pride” on the side. The report indicated that the driver
was possibly involved in a domestic violence home invasion with shots fired and
someone shot, the suspect was possibly armed with a sawed-off shotgun, and the truck
was stolen.
       Willet saw the truck go past on Interstate 80 at 90 to 100 miles per hour; he
contacted dispatch and followed. Defendant was driving the truck. Lander entered the
freeway behind Willet and radioed him. The officers conducted a vehicle stop and the
white truck stopped on the shoulder near Pedrick Road. The officers got out of their cars.
Lander ordered the defendant to put his hands up while he was still inside the truck.

                                               5
Defendant did so for a few moments, then lowered his arms and reached to the passenger
side of the truck. Defendant appeared to be digging for something.
       Suddenly the truck door opened and defendant jumped out and charged the
officers. His movement was sudden and aggressive. Lander shot defendant once and
defendant immediately fell to the ground. Willet notified dispatch that shots were fired
and called for an ambulance. Defendant fell partially in the road and the officers dragged
him to the shoulder. They found no gun on defendant or in the truck. While the officers
were attempting to assess defendant’s injuries, defendant went “violent crazy,” kicking
and grabbing at Willet, near where his gun was holstered. Defendant kicked Willet,
knocking him down. When Willet held defendant down, defendant tried to bite him.
       The police found Deaja and Fisher’s Ford Explorer in Concord.
       Psychiatric Testimony
       The court had appointed psychiatrist Charles Schaffer to evaluate defendant.
Schaffer had been a psychiatrist for about 35 years and had performed 2,500 to 3,000
forensic examinations. He reviewed the police report, defendant’s criminal history,2 the
testimony of Harris and Cynthia at the preliminary hearing, the jail psychiatric records,
medical records, psychiatric records from Elmhurst Hospital in New York,3 Cynthia’s
statement to a defense investigator, and two interviews with defendant.
       Schaffer testified that on the day of the crimes defendant was suffering from
bipolar I disorder with a recent manic episode with psychotic features. Psychotic meant
defendant had hallucinations, delusions, and disorganization. His manic phase symptoms
included disturbance of mood and effect, rapid speech, psychomotor agitation,



2 The parties stipulated defendant had two felony convictions: possession of marijuana
for sale and possession of a controlled substance for sale.
3 In 2011, defendant was hospitalized at Elmhurst Hospital in New York and diagnosed
with psychotic disorder not otherwise specified (NOS).

                                             6
inappropriate behavior, insomnia, loss of appetite, paranoid delusions, thought
disorganization, impaired concentration and attention, and impaired higher brain
functions such as judgment. Schaffer opined, to a reasonable degree of medical certainty,
that defendant’s paranoid delusion was the major contributing factor to the shooting of
the two victims.
        Schaffer also diagnosed defendant with cannabis use disorder and anti-social
personality disorder.
        The Verdicts
        The jury found defendant guilty of attempted murder (Pen. Code, § 664/187, subd.
(a))4 of Christopher (count 1) and found true firearm and great bodily injury allegations
(§§ 12022.53, subd. (d), 12022.5, subd. (a)(1), 12022.7, subd. (a)) and assault with a
deadly weapon (§ 245, subd. (a)(2)) on Christopher (count 2) and found true a firearm
(§ 122022.5, subd. (a)(1)) and a great bodily injury allegation (12022.7, subd. (a)).
        The jury found defendant not guilty of attempted murder of Harris (count 3), but
guilty of the lesser offense of attempted manslaughter (§ 664/192, subd. (a)) and found
true the same firearm and great bodily injury allegations as the assault on Christopher; the
jury found defendant guilty of assault with a deadly weapon on Harris (count 4) and
found true the same firearm and great bodily injury allegations. The jury found
defendant not guilty of kidnapping Harris (count 5) and not guilty of the lesser offense of
felony false imprisonment and could not reach a verdict on misdemeanor false
imprisonment.
        The trial court granted a motion for acquittal (§ 1118.1) on the kidnapping count
relating to Cynthia (count 6). The jury found defendant guilty of inflicting corporal
injury on Cynthia (§ 273.5; count 7) and false imprisonment (§ 236) of Cynthia (count 8)




4   Further undesignated statutory references are to the Penal Code.

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and found the firearm allegation true as to each count but could not reach a verdict on the
great bodily injury allegations.
       The jury found defendant guilty of carjacking (§ 215, subd. (a); count 9) with
personal use of a firearm (§ 12022.53, subd. (b), and robbery (§ 211; count 10) with the
same firearm allegation true. It found defendant guilty of making criminal threats (§ 422)
against Fisher (count 11) and Regine (count 13) and found true the firearm allegation on
each count. It found defendant guilty of assault with a deadly weapon as to Fisher (count
12) and Regine (count 14) and found the firearm allegations true as to both counts.
       Finally, the jury found defendant guilty of being a felon in possession of a firearm
(§ 29800, subd. (a)(1); count 15), vehicle theft (Veh. Code, § 10851; count 16), and
violent resisting (§ 69; count 18) as to Officer Willet. The charge of violently resisting
Officer Lander (count 17) was dismissed.
       The Sanity Trial
       Defendant initially pled not guilty and later added a plea of not guilty by reason of
insanity (§ 1026). Pursuant to section 1027, the court appointed Doctors Charles
Schaffer and Michael Kelly to examine defendant and investigate his mental status. They
presented reports, reaching different conclusions as to whether defendant was legally
insane at the time of the crimes. Kelly found defendant had been able to understand
nature and quality of his acts and to distinguish right from wrong. Schaffer found
defendant had lacked the capacity to distinguish right and wrong.
       After the verdicts, defendant withdrew his plea of not guilty by reason of insanity
as to all counts except counts 1 through 4, the shootings of Christopher and Harris. The
parties stipulated the jury could consider the evidence from the guilt phase of the trial.
       Dr. Schaffer testified for defendant. In his opinion, at the time of the two
shootings defendant had the ability to understand the nature and quality of his acts but
lacked the ability to distinguish right from wrong. Defendant thought he acted in self-
defense. His paranoid thoughts contributed to the shootings; there was no rational reason

                                              8
for them. Schaffer stressed that defendant had had a long-term, close relationship with
both of his victims, and therefore shooting them on short notice without warning made no
sense. He believed the shootings were the product of disturbed thinking and could not be
explained as rational or provoked. Schaffer found Harris’s statements that defendant
thought people were out to get him significant in reaching this conclusion.
       Schaffer noted that defendant had a prior similar episode in 2011 at Elmhurst
hospital. Then defendant was diagnosed with psychotic disorder NOS, which would now
be bipolar I, most recent episode manic with psychotic features in partial remission, his
current diagnosis.
       Schaffer explained that defendant fled after the shootings because he knew it was
legally wrong, but he lacked the capacity to know it was morally wrong. Defendant’s
statement about going to jail showed he knew his actions were legally wrong. Schaffer
testified defendant believed he was acting in self-defense and thought it was morally
justified, but he acknowledged that defendant did not say he shot his victims “for fear of
his safety being in jeopardy.” Schaffer asked defendant his rationale for shooting
Christopher. Defendant was uncertain; he said he may have shot Christopher because he
believed the unpleasant events earlier in the day were Christopher’s fault. Schaffer
assumed defendant meant the shooting of Harris and abuse of Cynthia.5 Also, defendant
said Christopher had come over to his house several times before the shooting asking for
help with his child and defendant found that annoying. Christopher reported he did not
bother defendant about his child; he may asked for advice once when the child was sick,
but he did not go over every day. Defendant never told Christopher he was a bother.




5 Defendant may have been referring instead to the power going out several times; as we
noted ante he had thought Christopher was “messing” with the power the day of the
shootings. Christopher said he was on the phone with SMUD and headed to the meter
when he was shot.

                                             9
       Schaffer had reviewed Dr. Kelly’s report. Schaffer thought Kelly was very
thorough in his interview. Kelly agreed with him as to the diagnosis, except for the
psychotic features part. Schaffer felt that parts of Kelly’s report supported his diagnosis
of psychosis. For example, defendant told Kelly that preceding the offenses his eyes
changed color and that he was contemplating scientific methods of accelerating particles
and how this might apply to the design of UFO’s. Schaffer conceded other portions of
Kelly’s report could support a finding that defendant was legally sane at the time of the
shootings. After defendant shot Christopher, he told him, “ ‘Take your ass to the
hospital. You’ll be the fuck all right.’ ” Schaffer thought defendant was questioning
what he had done, but understood others might interpret the statement as indicating
defendant knew his action were morally wrong. Defendant’s statement to Kelly that he
regretted shooting Christopher could support a finding that defendant knew his action
was morally wrong, but it might indicate only his awareness of that wrongness a year
later. Today defendant knew his act was morally wrong.
       Dr. Kelly testified for the People. He had considerably less experience than
Schaffer; he was still in training at the time of the evaluation and this was his first sanity
evaluation. The trial court accepted him as an expert and had appointed him to evaluate
defendant. In Kelly’s opinion, defendant was legally sane at the time of the shootings; he
was able to understand the nature and quality of his action and to distinguish right from
wrong.
       Kelly found no evidence defendant had delusional thoughts. He explained that
defendant’s statements about his eyes changing color could reflect his perception that eye
color changes depending on clothing and ambient lighting. Kelly did not think defendant
had a visual hallucination, but simply misattributed a lot of significance to something he
noticed. An inaccurate perception was not necessarily a delusion.
       Kelly found defendant’s version of events differed from those provided by
witnesses; defendant painted himself in a more favorable light and consistently

                                              10
minimized his conduct. Defendant said shooting Harris was an accident and he
immediately regretted it. Defendant felt bad and did not feel threatened. Kelly believed
defendant shot Christopher out of frustration. Defendant chased Christopher with a
loaded shotgun and fired several times; he was not threatened and regretted his actions.
       The jury found defendant legally sane at the time of the shootings.
                                      DISCUSSION
                                             I
                  Admission of Cynthia’s Preliminary Hearing Testimony
       Cynthia testified at the preliminary hearing, but the prosecution could not find and
serve her for trial. The People moved to deem Cynthia an unavailable witness and admit
at trial her testimony at the preliminary hearing and evidence of Cynthia’s prior
inconsistent statements to medical personnel. On May 11, 2015, the trial court held a
hearing on the People’s due diligence. The trial court found due diligence and ruled
Cynthia’s preliminary hearing testimony was admissible. The court also ruled Cynthia’s
inconsistent statements to medical personnel were admissible, although it later ordered
them stricken.6
       Defendant contends the admission at trial of Cynthia’s testimony at the
preliminary hearing violated his right to confrontation. He contends the People failed to
exercise due diligence to obtain her presence at trial. Instead, the People made only last
minute efforts and failed to serve Cynthia when she appeared at the jail to visit defendant.
       A. The Law
       “A criminal defendant has the right, guaranteed by the confrontation clauses of
both the federal and state Constitutions, to confront the prosecution’s witnesses. (U.S.
Const., 6th Amend.; Cal. Const., art. 1, § 15.) The right of confrontation ‘seeks “to



6 Defendant unsuccessfully moved for a mistrial. There is no issue on appeal as to these
statements.

                                            11
ensure that the defendant is able to conduct a ‘personal examination and cross-
examination of the witness, in which [the defendant] has an opportunity, not only of
testing the recollection and sifting the conscience of the witness, but of compelling him to
stand face to face with the jury in order that they may look at him, and judge by his
demeanor upon the stand and the manner in which he gives his testimony whether he is
worthy of belief.’ ” [Citation.] To deny or significantly diminish this right deprives a
defendant of the essential means of testing the credibility of the prosecution's witnesses,
thus calling “into question the ultimate ‘ “integrity of the fact-finding process.” ’ ”
[Citation.]’ [Citation.]” (People v. Herrera (2010) 49 Cal.4th 613, 620-621 (Herrera).)
        “Notwithstanding the importance of the confrontation right, it is not absolute.
[Citation.] Traditionally, there has been ‘an exception to the confrontation requirement
where a witness is unavailable and has given testimony at previous judicial proceedings
against the same defendant [and] which was subject to cross-examination . . . .’
[Citation.] Before the prosecution can introduce testimony from a prior judicial
proceeding, however, it ‘must . . . demonstrate the unavailability of’ the witness.
[Citation.] Generally, a witness is not unavailable for purposes of the right of
confrontation ‘unless the prosecutorial authorities have made a good-faith effort to obtain
[the witness’s] presence at trial.’ [Citations.]” (People v. Cromer (2001) 24 Cal.4th 889,
897.)
        In California, this traditional exception to the right of confrontation for prior
recorded testimony is codified in Evidence Code section 1291, subdivision (a), which
provides: “Evidence of former testimony is not made inadmissible by the hearsay rule if
the declarant is unavailable as a witness and: [¶] (2) The party against whom the former
testimony is offered was a party to the action or proceeding in which the testimony was
given and had the right and opportunity to cross-examine the declarant with an interest
and motive similar to that which he has at the hearing.” A witness is unavailable if
“[a]bsent from the hearing and the proponent of his or her statement has exercised

                                               12
reasonable diligence but has been unable to procure his or her attendance by the court’s
process.” (Evid. Code, § 240, subd. (a)(5).) “Reasonable diligence, often called ‘due
diligence’ in case law, ‘ “connotes persevering application, untiring efforts in good
earnest, efforts of a substantial character.” ’ [Citation.]” (People v. Cogswell (2010) 48
Cal.4th 467, 477.)
       In determining whether the People exercised reasonable diligence in procuring
Cynthia’s presence at trial, the factors we consider include “ ‘the timeliness of the search,
the importance of the proffered testimony, and whether leads of the witness’s possible
location were competently explored.’ [Citation.]” (Herrera, supra, 49 Cal.4th at p. 622.)
Courts have found reasonable diligence “when the prosecution’s efforts are timely,
reasonably extensive and carried out over a reasonable period,” but not where “the efforts
of the prosecutor or defense counsel have been perfunctory or obviously negligent.”
(People v. Bunyard (2009) 45 Cal.4th 836, 856, 855.) Reasonable diligence does not
require exhaustion of every possible means of investigation, only “reasonable efforts to
locate the witness.” (People v. Cummings (1993) 4 Cal.4th 1233, 1298 (Cummings).)
“That additional efforts might have been made or other lines of inquiry pursued does not
affect” the finding of reasonable diligence. (Ibid.)
       “We review the trial court’s resolution of disputed factual issues under the
deferential substantial evidence standard [citation], and independently review whether the
facts demonstrate prosecutorial good faith and due diligence [citation].” (Herrera, supra,
49 Cal.4th at p. 623.)
       B. Evidence at the Due Diligence Hearing
       Jeremias Barboza, a process server for the District Attorney’s Office, testified he
received a subpoena for Cynthia Lee on March 23, 2015. He ran her name through
pertinent databases, including SMUD, EDD, DMV, and welfare, all of which confirmed
the address on the subpoena. He attempted service there but the house was vacant.
People outside the house told him the occupants had been evicted. Barboza’s further

                                             13
research revealed a second address, but when he went there the tenants, who had lived
there two years, did not know Cynthia. The case was then continued and Barboza
stopped his efforts. When Barboza learned the house on Oakmont was boarded up, he
put that fact in the system. On April 16 he sent the prosecutor an e-mail requesting
assistance locating Cynthia.
       On April 29, 2015, Barboza received another subpoena for Cynthia and again ran
all the pertinent databases, receiving the same address as before. He rechecked that
address on Oakmont Street and discovered the apartment was being renovated. He
obtained the name of the leasing agent and contacted him, but the agent had no
information on Cynthia. Barboza called the phone number on the subpoena and was told
it was a wrong number. On May 15, he rechecked the databases and learned no new
information. He checked the main jail logs and learned that Cynthia had visited on
May 5. He made no further attempt to contact Cynthia.
       Steve Glen, an investigator with the District Attorney’s Office, was given the task
of finding Cynthia in late April 2015. He, too, checked the databases and he went to the
address on Cynthia’s driver’s license. There he spoke with a woman named Carol
Anderson, identified as a friend of Cynthia’s, to whom, he knew, a process server had
already spoken. Anderson said the process server had given her his card which she
passed on to Cynthia’s daughter to give to Cynthia. Glen checked Anderson’s residence
and Cynthia was not there.
       Glen next went to Deaja’s high school and spoke with her. Deaja said she was
staying with a friend and did not know where Cynthia was. Glen asked Deaja to update
her contact information with the school; when he checked later, she had not done so.
Later he called a number for Cynthia and Deaja answered; she said she was getting on
light rail and hung up.




                                            14
        On May 1, Glen entered comments into a county-wide system for law
enforcement, asking for a call if anyone contacted Cynthia. He also left a subpoena at the
jail.
        Glen checked several residences where cars connected to Cynthia might be. He
either drove by or had someone else drive by, but no one saw any of the vehicles. At one
location residents told him they received mail for Cynthia, but they did not know her. He
checked with the post office and Cynthia had no forwarding address. He spoke again
with Carol Anderson who told him that if Cynthia did not want to be found, he would not
find her. She had passed Glen’s message on to Cynthia and there were no calls.
Anderson said Cynthia did not want to testify because she thought the world of
defendant, “that’s her man.”
        Glen called area hospitals, but none listed Cynthia as a patient. Nor was she listed
as a missing person. He checked Sacramento County In-Home Health Services (IHHS)
to see if Cynthia was receiving payment for services. IHHS had no record of Cynthia
currently receiving payment; her last services were provided December 31, 2014. Glen
checked Facebook and could not locate Cynthia. He also checked a private database and
found only the Oakmont address.
        Glen received notice that Cynthia had made a jail visit on May 9. Glen asked jail
personnel why he was not notified and received no answer. A deputy checked the file
and Glen’s note to call him was still there.
        Gayla Denison was the security officer working the front counter at the main jail
when Cynthia visited on May 9. She noticed the comment on the computer that Cynthia
needed to be served and that Glen should be contacted. Cynthia, who may have read
Denison’s computer screen, told Denison she had talked to the district attorney about the
subpoena and had it. Denison noted the comment on the screen did not indicate the
subpoena was at the jail. She did not call Glen because it was a Saturday and she
assumed the office would be closed.

                                               15
       The trial court took judicial notice that the trial was originally set for June 14,
2014, and continued several times. After defendant entered a plea of not guilty by reason
of insanity, the trial date was vacated and there were multiple continuances. On April 23,
2015, trial was assigned to that department with the understanding that trial would begin
with the hearing of in limine motions on April 30. It was also agreed voir dire would
begin May 11.
       In finding due diligence, the court noted that while Cynthia was protective of
defendant at the preliminary hearing, there had been no issue over her appearing. The
court found the leads were competently explored and the failure to serve Cynthia at the
jail was the product of unclear communication and the jail security officer trusting what
Cynthia had told her.
       C. Analysis
       Defendant contends the People failed to show due diligence in procuring
Cynthia’s presence at trial. He argues Cynthia was a very important witness because she
was in the best position to describe the dramatic change in him. Simply because she
appeared at the preliminary hearing did not mean she would appear at trial. Defendant
contends the search was not begun timely, and the People wasted time checking the same
databases over and over and continually being stonewalled by Cynthia’s family.
       We agree with the trial court’s finding of due diligence. Nothing in the record
indicates the prosecution should have suspected that Cynthia would not appear at trial.
There is no obligation on the People “to keep ‘periodic tabs’ on every material witness in
a criminal case.” (People v. Hovey (1988) 44 Cal.3d 543, 564.) Glen explained the
reason behind continually checking the same databases; people change addresses
frequently. The efforts to find and serve Cynthia were not “too late,” as defendant
argues. After Barboza was unable to locate Cynthia, Glen became involved in the search
at the end of April, more than 10 days before trial. Courts have upheld a trial court’s
finding of reasonable diligence where the witness search was begun shortly or even

                                              16
during trial. (People v. Saucedo (1995) 33 Cal.App.4th 1230, 1238 [subpoenas generated
eight days before trial], disapproved on another point in People v. Cromer, supra, 24
Cal.4th at p. 901, fn. 3, and cases cited therein.)
       Further, Glen made considerable efforts to find Cynthia. In addition to checking
databases and Cynthia’s last known address several times, he followed up several leads as
to cars that might be connected to Cynthia, checked hospitals, IHHS, Facebook, the post
office; he put a comment in a law enforcement system and left word at the main jail to
serve Cynthia and contact him. He contacted Carol Anderson and Cynthia’s daughter
Deaja more than once. Courts have found these types of efforts sufficient to constitute
diligence. Cummings, supra, 4 Cal.4th at p. 1297 [frequent stops at witness's last known
residence over a one-week period, contacting neighbors, employer, and relatives]; People
v. Wise (1994) 25 Cal.App.4th 339, 344 [checking several addresses where witness might
be found, as well as local jail, hospital, and coroner].) Despite these efforts, Cynthia was
not found because, as Carol Anderson told Glen, she did not want to be found. A
witness’s calculated effort to avoid service of process does not establish lack of diligence.
(People v. Diaz (2002) 95 Cal.App.4th 695, 706-707 [numerous attempts to find witness
defeated by witness's determined effort to avoid testifying].)
       Defendant criticizes the People’s failure to serve Cynthia when she visited the jail.
We agree with the trial court’s assessment that this failure reflected “unclear
communication.” Although more could have been done to serve Cynthia, the
prosecution’s reasonable efforts demonstrate due diligence. The standard for due
diligence is reasonableness, not perfection. (Cummings, supra, 4 Cal.4th at p. 1298;
People v. Diaz, supra, 95 Cal.App.4th at p. 706; People v. Wise, supra, 25 Cal.App.4th at
p. 344.)




                                              17
                                             II
                          Sufficiency of the Evidence of Resisting
       The jury found defendant guilty in count 18 of violating section 69, resisting
Officer Willet. (RT 1424) Defendant contends there is insufficient evidence of resisting
because Officer Lander used excessive force in shooting defendant, who was unarmed.
       Section 69, subdivision (a) states: “Every person who attempts, by means of any
threat or violence, to deter or prevent an executive officer from performing any duty
imposed upon such officer by law, or who knowingly resists, by the use of force or
violence, such officer, in the performance of his duty, is punishable by a fine not
exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison, or in a
county jail not exceeding one year, or by both such fine and imprisonment.” Section 69
describes two offenses, attempting to deter and actually resisting an officer. (People v.
Lopez (2005) 129 Cal.App.4th 1508, 1530.)
       Here the People relied on the resisting offense. To violate section 69 by resisting
an officer “by the use of force or violence” requires “that the officer was acting lawfully
at the time of the offense.” (People v. Smith (2013) 57 Cal.4th 232, 241.) A person has a
right to resist excessive force used in making an arrest. (People v. Adams (2009) 176
Cal.App.4th 946, 953.) “The reasonableness of a particular use of force is judged from
the perspective of a reasonable officer on the scene, not by the 20/20 vision of hindsight.
The inquiry is an objective one: Was the officer's action objectively reasonable in light
of the facts and circumstances confronting him, without regard to his underlying intent or
motivation? [Citation.]” (In re Joseph F. (2000) 85 Cal.App.4th 975, 989.)
       The standard for judicial review of a criminal conviction challenged as lacking
evidentiary support is well established: “[T]he court must review the whole record in the
light most favorable to the judgment below to determine whether it discloses substantial
evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that
a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”

                                             18
(People v. Johnson (1980) 26 Cal.3d 557, 578.) We accord due deference to the verdict
and will not substitute our conclusions for those of the trier of fact. (People v. Koontz
(2002) 27 Cal.4th 1041, 1078.) A conviction will not be reversed for insufficient
evidence unless it appears “ ‘that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18
Cal.4th 297, 331.)
       Defendant contends Lander’s shooting was excessive force because defendant was
unarmed, the videotape of the car theft at the market did not show any weapon, and
defendant had his hands up when shot. He adds that he did not grab at Willet’s gun or
even kick Willett, but merely “responded to the use of excessive force by waiving his
arms and legs after he was down.”
       First and foremost, neither Lander nor Willet was aware of the first two facts. The
be-on-the-lookout report indicated the suspect may be armed and dangerous and may
have been involved in a domestic violence incident involving a shooting. There was no
evidence the officers knew the contents of the surveillance video at the market. As to the
third point, the record does not support defendant’s assertion that his hands were up as he
jumped out of the car immediately before he was shot. As we have discussed, the
officers testified that defendant initially put his hands up while inside the truck but then
put them down and bent forward and down as if retrieving something. He then jumped
out of the truck suddenly and ran toward them, and immediately was shot. When asked
at trial whether the video from the CHP car showed defendant’s hands were up, Lander
responded it was “very hard to see where his hands are” at the time he was shot. We
have reviewed the video and agree. As defendant leaves the truck, his movements are
sudden and exaggerated and his arms are swinging. His right hand is initially hidden
from view. Lander shoots defendant almost immediately after he sprints from the truck
toward the officers; it appears possible defendant’s hands raise in response to the impact.
It is difficult to determine at what precise point defendant’s hands raise.

                                              19
       In assessing whether Lander used reasonable or excessive force, we must consider
the circumstances as they appeared to the officer at the time. (In re Joseph F, supra, 85
Cal.App.4th at p. 989.) Further, as the United States Supreme Court has observed in the
context of determining reasonable force: “The calculus of reasonableness must embody
allowance for the fact that police officers are often forced to make split-second judgments
-- in circumstances that are tense, uncertain, and rapidly evolving -- about the amount of
force that is necessary in a particular situation.” (Graham v. Connor (1989) 490 U.S.
386, 396-397 [104 L.Ed.2d 443].) Here, the officers were confronted with a suspect who
they had reason to believe was armed and dangerous and had engaged in violence and
shootings that day. Defendant had fled at very high rates of speed before stopping. After
being ordered to put his hands up, defendant first complied but then appeared to
rummage in the seat next to him and bolted unexpectedly from the car towards the
officers. At that point, it was reasonable to believe defendant had obtained a weapon and
intended to do harm to the one or more of the officers. Substantial evidence supports the
jury’s finding that Officer Lander was acting lawfully and did not use excessive force.
       Our review of the video similarly supports Willet’s testimony regarding
defendant’s actions when resisting. It shows defendant on the ground, after being very
still for multiple minutes as the officers gather around him, pat him down, and administer
first aid, suddenly lurching upward and appearing to grab at Willet’s right side, almost
touching Willet’s holstered gun as Willet attempts to step away. Defendant almost
simultaneously violently kicks Willet and rolls off-screen. Substantial evidence supports
the conviction for violating section 69.
                                            III
                                 Section 654 and Count 8
       The jury found defendant guilty in count 7 of domestic violence with a firearm
enhancement and in count 8 of false imprisonment with the same enhancement. The
defense argued the sentence on count 8 should be stayed pursuant to section 654. The

                                            20
trial court disagreed, finding that defendant had a separate intent to keep Cynthia from
leaving to support the false imprisonment count. The court sentenced defendant on count
7 to one year plus one year four months on the enhancement and on count 8 to a
consecutive unstayed term of eight months plus one year four months for the
enhancement.
       Defendant contends the trial court violated section 654 by not staying the sentence
on count 8. He contends both the domestic violence and the false imprisonment were
part of an indivisible course of conduct with a single intent and objective. He notes the
coextensive timing of the two crimes.
       Section 654 provides in part: “(a) An act or omission that is punishable in
different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.”
       “Case law has expanded the meaning of section 654 to apply to more than one
criminal act when there is a course of conduct that violates more than one statute but
nevertheless constitutes an indivisible transaction. [Citation.]” (People v. Hairston
(2009) 174 Cal.App.4th 231, 240.) “ ‘If all of the offenses are incident to one objective,
the court may punish the defendant for any one of the offenses, but not more than one.
[Citation.] If, however, the defendant had multiple or simultaneous objectives,
independent of and not merely incidental to each other, the defendant may be punished
for each violation committed in pursuit of each objective even though the violations
shared common acts or were parts of an otherwise indivisible course of conduct.
[Citation.]’ [Citations.]” (Ibid.) “[T]he purpose of section 654 is to ensure that a
defendant's punishment will be commensurate with his culpability. [Citations.]”
(People v. Correa (2012) 54 Cal.4th 331, 341.)
       A trial court “is vested with broad latitude” in making the factual determination
whether section 654 applies. (People v. Vang (2010) 184 Cal.App.4th 912, 915-916.) “A

                                            21
trial court’s express or implied determination that two crimes were separate, involving
separate objectives, must be upheld on appeal if supported by substantial evidence.
[Citation.]” (People v. Brents (2012) 53 Cal.4th 599, 618.)
       That the false imprisonment was coextensive with the brutal assault on Cynthia is
not dispositive of the section 654 issue because “[i]t is defendant’s intent and objective,
not the temporal proximity of his offenses, which determine whether the transaction is
indivisible. [Citations.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.) As the trial
court noted, defendant did not need to tie Cynthia up to assault her, so the false
imprisonment was not merely incidental to the domestic violence.
       The record supports the trial court’s determination that defendant had separate
objectives and intents in committing the domestic violence and the false imprisonment
offenses. Defendant’s intent in the domestic violence was to inflict corporal punishment
on Cynthia; he did so by hitting and kicking her, banging her head on the floor, choking
her until she lost consciousness, and burning her with a cigarette. The length and breadth
of the assault shows an intent to inflict pain. His intent in the false imprisonment was to
keep Cynthia from leaving, demonstrating his dominance and control. Cynthia testified,
“[H]e basically overpowers me.” Defendant displayed this separate intent to show
dominance by forcing Harris to tie Cynthia up, thereby physically restraining her.
       The trial court did not violate section 654 in failing to stay the sentence on count
8.




                                             22
                                            IV
                                Section 654 and Count 15
       Defendant contends the trial court erred in failing to stay the sentence on count 15,
felon in possession of a firearm.7 He argues the People failed to prove he possessed the
firearm with an intent separate from the intent to commit the offenses in which he used a
gun. We find no error.
       The crime of being a felon in possession of a firearm “is committed the instant the
felon in any way has a firearm within his control.” (People v. Ratcliff (1990) 223
Cal.App.3d 1401, 1410, italics omitted (Ratcliff).) “Thus where the evidence shows a
possession distinctly antecedent and separate from the primary offense, punishment on
both crimes has been approved. On the other hand, where the evidence shows a
possession only in conjunction with the primary offense, then punishment for the illegal
possession of the firearm has been held to be improper where it is the lesser offense.’
[Citation.]” (People v. Bradford (1976) 17 Cal.3d 8, 22.) “[I]f the evidence
demonstrates at most that fortuitous circumstances put the firearm in the defendant’s
hand only at the instant of committing another offense, section 654 will bar a separate
punishment for the possession of the weapon by an ex-felon.” (Ratcliff, at p. 1412.) But
where the “defendant’s possession of the weapon was not merely simultaneous with” his
crimes, “but continued before, during and after those crimes,” section 654 does not
prohibit separate punishments. (Id. at p. 1413.)
       Here the evidence shows that defendant possessed the gun prior to pointing it at
Harris and ordering her to tie up Cynthia. Defendant retrieved the gun from Deaja’s
room. Although there is no evidence as to how the gun got there, the reasonable



7 Defendant was charged with possession of both the shotgun he used and a rifle which
was in the living room. The jury instructions limited the offense of conviction to
possession of the shotgun.

                                            23
inference is that defendant put it there and he had control over it. Deaja was his minor
daughter and her room was the only bedroom in the small apartment. Defendant went
straight to the gun when he wanted to use it, indicating he knew where the gun was. That
Harris had not seen the gun before is immaterial as she had not lived with defendant since
the previous November. Defendant kept the gun with him until he stopped in Concord
and let Harris and Cynthia out. This is not a case like People v. Bradford, supra, 17
Cal.3d at page 13, where defendant wrestled the gun away from the officer just before
firing, or like People v. Venegas (1970) 10 Cal.App.3d 814, 818-821, where there was no
evidence the defendant possessed the gun prior to the shooting and the defense presented
evidence that defendant obtained the gun during a struggle moments before the shooting.
Here no “fortuitous circumstances put the firearm in the defendant’s hand only at the
instant of committing another offense.” (Ratcliff, supra, 223 Cal.App.3d at p. 1412.)
The trial court correctly declined to stay sentence.
                                             V
                        Sufficiency of the Evidence of Legal Sanity
       Defendant contends there is insufficient evidence to sustain the jury’s finding that
he was legally sane at the time he shot Cynthia and Christopher. He contends that due to
his mental illness he lacked the ability to know the shootings were morally wrong.
       Citing People v. Drew (1978) 22 Cal.3d 333, 351 and People v. Skinner (1986)
185 Cal.App.3d 1050, 1059, defendant contends the question on appeal is whether the
jury could reasonably reject the evidence of defendant’s insanity. Defendant contends
the jury could not reasonably reject Dr. Schaffer’s testimony and opinion because he was
more experienced than Dr. Kelly. Further, his opinion that defendant suffered a
psychotic episode was based on (1) defendant’s prior psychotic episode in New York at
Elmhurst Hospital; (2) Harris’s statements that defendant thought someone was out to get
him, believed that Cynthia was “lost,” was not making sense, and was acting strangely;
(3) defendant’s refusal to take Harris to hospital nearby; and (4) the lack of any reason to

                                             24
shoot Christopher without warning. In contrast, defendant argues, Kelly was
inexperienced, relied only on defendant’s interview statements in reaching his opinion,
and failed to examine the circumstances of the day of the shootings. Defendant ridicules
Kelly for failing to find the following symptoms delusions: defendant’s claim he was
thinking faster than anyone else, his belief his eyes changed color, believing he could use
particle acceleration to create UFO’s, and finding a call on a stranger’s phone to be a
supernatural sign.8
       We have already set forth the standard for reviewing a claim of insufficient
evidence in Part II, ante. Applying the correct standard, Dr. Kelly’s testimony and
opinion provided credible and sufficient evidence for the jury to find defendant sane.
       This is not a case like Drew or Skinner where the prosecution offered no evidence
of sanity. Although Kelly was less experienced than Schaffer, the trial court found Kelly
qualified as an expert and defendant did not challenge that finding. The difference in the
experience of the two experts was a factor for the jury to consider. Kelly met with
defendant for seven hours and cited defendant’s statements extensively in his report, but
he denied he relied exclusively on those statements in reaching his opinions. Kelly
reviewed the police reports, the CHP video, the audiotape of defendant at Kaiser
Hospital, the transcript of the preliminary hearing, 40 minute conservations with Cynthia
and Harris, defendant’s medical records, Christopher’s statements, and the medical
records from Elmhurst Hospital. As to the symptoms Schaffer thought were delusions,
Kelly considered them paranoia or misattributing significance to an observation. He
explained, “Delusion is a fixed, false belief that someone holds despite evidence to the



8 Defendant told Kelly there were a number of unusual coincidences the week before the
offenses. For example, defendant claimed an acquaintance on the street said hello and
told him his wife was on the phone, handing defendant a cell phone. Defendant thought
these coincidences were meaningful and said “yes” when Kelly asked if they seemed
supernatural.

                                            25
contrary. So an inaccurate perception of people is not necessarily a delusion.” He
testified to the recognized difficulty in distinguishing between a delusion and a firmly
held belief. Kelly testified he did not have enough information to determine whether
defendant was delusional in New York.
       Further, Schaffer recognized the existence of information that challenged his
opinion. He acknowledged that defendant’s statement to Kelly that he regretted shooting
Christopher and his statement to Christopher at the time of shooting--“Take your ass to
the hospital. You’ll be the fuck all right.”--could be interpreted as showing that
defendant knew his actions were morally wrong, although Schaffer did not interpret them
that way. Schaffer also testified it was possible that defendant was suffering from
disturbed behavior but still knew the shootings were morally or legally wrong.
       Sufficient evidence supports the jury’s finding of sanity.
                                                VI
                                       Correction of Abstract
       Defendant requests a correction of the abstract of judgment as to count 12, the
assault on Fisher. The trial court imposed a sentence of one year, one-third the mid-term,
and stayed it pursuant to section 654. The abstract, however, shows a stayed term of one
year and four months. The People agree the error should be corrected, as do we.
       “Where there is a discrepancy between the oral pronouncement of judgment and
the minute order or the abstract of judgment, the oral pronouncement controls.
[Citations.]” (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) “ ‘If the judgment
entered in the minutes fails to reflect the judgment pronounced by the court, the error is
clerical, and the record can be corrected at any time to make it reflect the true facts.’
[Citation.]” (People v. Rowland (1988) 206 Cal.App.3d 119, 123.) We shall direct the
trial court to correct the abstract.




                                                26
                                    DISPOSITION
      The judgment is affirmed. The trial court shall prepare a corrected abstract of
judgment to show the one-year stayed sentence on count 12 and to forward a certified
copy to the Department of Corrections and Rehabilitation.




                                                      /s/
                                                Duarte, Acting P. J.



We concur:



     /s/
Hoch, J.




     /s/
Renner, J.




                                           27
