People v. Lee CA3 ( 2016 )


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  • 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    NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
    1
    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.
    2
    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.
    7
    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