People v. Magallon CA2/6

Filed 6/4/15 P. v. Magallon CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B256259 (Super. Ct. No. NA090693) Plaintiff and Respondent, (Los Angeles County)

v.

MISTY MAGALLON,

Defendant and Appellant.

A jury found Misty Magallon guilty of first degree murder. (Pen. Code, §§ 187, subd. (a)/189.) The jury also found true the allegation that she personally discharged a firearm in committing the murder. (Id., § 12022.53, subds. (b)-(d).) The trial court sentenced Magallon to 25 years to life on the murder and a consecutive 25 years to life on the personal use allegation, for a total of 50 years to life. The court awarded 902 days of actual custody credit. We modify the judgment to add two additional days of custody credit and affirm it in all other respects.

FACTS On November 20, 2011, Ramon Ruvalcaba was at home at approximately 3:00 p.m. on a rainy day. He heard three gunshots. As he walked toward the back of his home, he heard five more shots. As Ruvalcaba looked out the window of his home, he saw a person wearing a gray hooded sweatshirt standing in the alley. The sweatshirt had no logo on it. The person had one arm extended as shots were being fired. Initially, Ruvalcaba could not tell whether the shooter was male or female. He did not see anyone else in the alley. The shooter ran down the alley toward Ruvalcaba's home. From a distance of 20 feet, Ruvalcaba could then see the shooter's face. He recognized the shooter as Magallon, a woman he had seen in the area at least twice a week. She had a semiautomatic handgun in her right hand. Magallon had her hair pulled back into a ponytail. Although, her tattoos were not visible at that time, Ruvalcaba knew from seeing her on prior occasions she had tattoos of lips and a "W" on her neck. Ruvalcaba later identified Magallon in a photographic lineup. When the police arrived, they found Richard Rodriguez on the ground in the alley between a van and an apartment building. He had been shot 20 times and died as a result. The police found 21 spent 40-caliber shell casings, all fired from the same gun. The police noticed some fresh black graffiti on the wall of the apartment building. The graffiti read "Westside Wilmas X13" with the "es" in Westside crossed out. Rodriguez had black paint on his finger and on the web of his hand. A blue bandana was near Rodriguez's body. Blue is associated with the Westside Wilmas gang. Police seized from Magallon's home a gray hooded sweatshirt with a "UCLA" logo on it and a blue bandana similar to the one found at the scene. Karina Romero was one of Ruvalcaba's neighbors. She heard shots and looked to see a