P. v. Alvarez
Filed 12/3/12 P. v. Alvarez CA1/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
EDUARDO
LUIS ALVAREZ,
Defendant and Appellant.
A131036
(Solano
County
Super. Ct.
No. VCR198301)
Eduardo Luis Alvarez was convicted
by jury of second degree robbery (Pen.
Code, § 211)
title="">[1]
and false imprisonment by violence (§ 236). The jury found, as to the robbery count, that
Alvarez personally and intentionally discharged a firearm, causing great bodily
injury (§ 12022.53, subd. (d)), and, as to both counts of conviction,
that he personally inflicted great bodily injury (§ 12022.7,
subd. (a)).
Alvarez argues that: (1) the trial court prejudicially erred
by ruling that a former codefendant, whom Alvarez sought to call as a witness,
could assert the Fifth Amendment privilege against
counsel provided ineffective assistance by introducing expert testimony about
Alvarez’s character that opened the door to impeachment, and by failing to
introduce exculpatory evidence; and (3) the trial court prejudicially
erred by failing to instruct sua sponte
on a less serious firearm enhancement (personal use of a firearm;
§ 12022.53, subd. (b)). We
affirm the judgment.
name="_ftnref2" title="">[2]
I. Factual
and Procedural Background
A. The Charges
An amended information charged
Alvarez with the attempted murder of Oscar Rodriguez (count 1; §§ 187,
subd. (a), 664), robbery (count 2; § 211), and
§ 236). As to counts 1 and 2, the
information alleged that Alvarez personally used a firearm (§ 12022.53,
subd. (b)), personally and intentionally discharged a firearm
(§ 12022.53, subd. (c)), and personally and intentionally discharged
a firearm causing great bodily injury (§ 12022.53, subd. (d)). As to all three counts, the information
alleged that Alvarez personally inflicted great bodily injury (§ 12022.7,
subd. (a)).
B. The Evidence Presented at Trial
1. The
Prosecution Case
In June 2008, Oscar Rodriguez lived
in Cordelia, where he met Curtis Drennan and Alvarez, both of whom sometimes
stayed at the home of Rodriguez’s neighbors, Felicia P. and her 15-year-old
brother, Manuel P., also known as “Junior.â€
Rodriguez was a sharp dresser and appeared to have money, while Drennan
and Alvarez appeared be “broke.â€
Rodriguez liked to smoke marijuana.
Drennan took various drugs.
In early June 2008, Drennan’s
girlfriend asked Rodriguez for help because Drennan had overdosed on
ecstasy. When Rodriguez arrived at the
P.s’ house, Drennan was in pain and Alvarez was asleep. Rodriguez was unable to wake Alvarez. Rodriguez attempted to get Drennan into his
car to take him to the hospital. Drennan
was “running around aimlessly†outside the house, and at one point fell
down. Rodriguez later heard that Drennan
escaped from the hospital.
Late at night on June 11, 2008,
Drennan, using Alvarez’s cell phone, called Rodriguez and asked if he wanted to
smoke marijuana. Rodriguez said he
did. Rodriguez waited for 20 to 30
minutes for Drennan and Alvarez to arrive, and tried unsuccessfully to contact
Drennan. Rodriguez then drove down the
street and parked in front of the P.s’ house.
Rodriguez and Junior planned to obtain marijuana elsewhere. Junior told Rodriguez that Drennan and
Alvarez had called earlier and said they were planning to rob “Kesha†for
drugs.
Drennan called Rodriguez from
Alvarez’s cell phone and stated that he had been waiting at Rodriguez’s
house. Rodriguez knew that was not true
because he had just left his house.
Rodriguez drove back to his house with Junior. Drennan did not want Junior along, so
Rodriguez drove him home. Rodriguez got
into the driver’s side back seat of Alvarez’s car and sat next to Alvarez. Drennan sat in the front passenger seat. Drennan introduced Rodriguez to the driver,
“John-John,†whom Rodriguez did not know.
Drennan, Alvarez and John-John appeared to be drunk, and their speech
was slurred.
The four men drove to a Shell gas
station. Rodriguez was told to buy a
couple of Swisher cigars, which they would use to roll and smoke
marijuana. Rodriguez was unable to get
out of the car because the child safety lock was on. Alvarez said a child had been in the back
seat; Alvarez then told Drennan to get out and unlock Rodriguez’s door. As Rodriguez got out of the car, he unlocked
the child safety lock.
After Rodriguez bought the cigars
and returned to the car, John-John drove the car to a secluded vista point
parking lot and backed into a parking spot near a recreational vehicle. A semi-truck was also parked in the lot. The area was not well lit. The lot overlooked the freeway and a
Jack-in-the-Box. Rodriguez opened the
door to dump the tobacco out of one of the cigars. Everyone was silent, and it seemed to
Rodriguez that they were surprised he could open his door. Rodriguez gave his cigar to Drennan and
waited to see the marijuana. While he
waited, Rodriguez played with his $380 gold “grill†(gold caps for his teeth),
which he had shown to Drennan during the car ride. Rodriguez, who wanted to go back home to
sleep, said “ ‘let’s make this quick.’ †Drennan asked John-John if he wanted to “slap
fight†outside the car. Drennan and
John-John walked about 10 feet away from the car and exchanged a “little
smile,†but did not fight.
Drennan and John-John returned and
leaned against Rodriguez’s door. Alvarez
pulled out a revolver and held it to Rodriguez’s temple and neck. Alvarez said, “ ‘Give me everything you
got. Give me your wallet.’ †Rodriguez yelled at Drennan to “ ‘check
[his] boy[.]’ †Drennan leaned into
the partially open window and said, “ ‘You better do it the easy way or
the hard way, man. It’s like, Eddie,
man, you better use that, man. You
better not be pulling it out and not using it.
You better use it.’ â€
Pointing the gun between Rodriguez’s temple and neck, Alvarez responded,
“ ‘Don’t think that I won’t.’ â€
Rodriguez gave Alvarez his wallet, which had no money in it. Alvarez was “extremely upset†and asked
Rodriguez where all his money was.
Rodriguez said he did not have any, but then remembered he had $15 in
his pocket for “munchies,†and gave it to Alvarez. Alvarez said, “ ‘Where’s the rest of
it?’ †Rodriguez said he did not
have any more money, but took his cell phone and car keys out his pocket. Alvarez snatched them from Rodriguez. Drennan said, “ ‘Check him for more,
check him for more.’ †Alvarez
“sissy punch[ed]†Rodriguez in the face a few times, while still pointing the
gun at Rodriguez. Drennan said,
“ ‘Get his grill.’ †Drennan
put his hand into Rodriguez’s mouth.
Rodriguez was angry, slapped Drennan’s hand away, pulled the grill out
himself, and threw it on the ground.
John-John then opened Rodriguez’s
door. Rodriguez put his left leg out of
the car. Rodriguez also attempted to
slap or push away the gun Alvarez was holding.
Alvarez, Drennan and John-John yelled at Rodriguez to put his leg back
in the car, saying “ ‘You ain’t going nowhere. Where do you think you’re going?’ †Drennan was holding a knife with a 10-12 inch
blade, and threatened to stab Rodriguez if he did not do what Alvarez
said. Drennan also told John-John to
pull out his “thing,†which Rodriguez believed meant a gun, but he never saw
John-John holding one. John-John kicked
Rodriguez in the head about five times.
Rodriguez noticed that Drennan was smirking. Alvarez then shot Rodriguez in the back. Rodriguez yelped. He saw that Drennan “had a big old smile on
his face[.]†Rodriguez estimated that
about two seconds elapsed between the time he put his leg out of the car and
the time Alvarez shot him.
Alvarez tried to take off
Rodriguez’s belt and pants, but Rodriguez, who was hunched over after being
shot, said he would do it himself.
Rodriguez fumbled with the belt but could not unfasten it. Alvarez, Drennan and John-John yelled at
Rodriguez to “ ‘get out of the F’ing car.’ †As Rodriguez got out of the car, Alvarez shoved
him. Rodriguez dropped to his knees
outside the car, fearing that, if he stood up, his attackers “would think that
one shot wasn’t enough[.]†John-John
jumped into the driver’s seat. Drennan
looked at Rodriguez for a split second, slammed Rodriguez’s door, and said
“ ‘This isn’t the way this is supposed to happen.’ †Drennan got into the front passenger
seat. As the car drove away, Rodriguez
could see Drennan looking at him through the rear window.
Rodriguez knocked on the door of
the RV and then the semi-truck, but no one answered. Rodriguez walked back to the Shell gas
station, which took 15–20 minutes. He
passed out after arriving at the gas station.
Police and paramedics later arrived.
Rodriguez was in pain, and was lying on the floor with blood around
him. Rodriguez told police that “Eddie,
Curtis, and John-John†had attacked and robbed him at the vista point, and that
“Eddie†had shot him. The paramedics
took Rodriguez to the hospital, where he underwent emergency trauma surgery.
The parties stipulated that the
medical evidence showed that the bullet entered the right side of Rodriguez’s
back, traveled through his lower left lung, and into his seventh rib,
fracturing it. There were bullet
fragments throughout his chest area. The
bullet remains lodged in his rib cage, and he has a scar.
At the time of trial, Rodriguez
still had sleepless nights and was nervous and antisocial. He believed his physical problems were the
reason he lost his job wrapping pallets.
He testified he had been “completely by myself†during the two years
between the shooting and trial.
Detective Chad Sayre of the Solano
County Sheriff’s office responded to the scene of the shooting in the early
morning hours of June 12, 2008. Sayre
found part of a cigar at the vista point.
He knocked on the doors of the RV and the semi-truck, but no one
answered. Sayre photographed Rodriguez
after his surgery. He had bruises and scuff marks on his face,
as well as a cut lip.
Police found Alvarez’s car in
Pittsburg. Evidence technician Kari Lee
processed the car. Lee found a grill on
the floor, as well as blood on the rear driver’s side seat. (Rodriguez later identified a grill
apparently found in the car as belonging to Alvarez.) Lee also found a Swisher cigar, a pair of
bloodstained jeans, Rodriguez’s wallet (containing his driver’s license), and a
receipt in Rodriguez’s name. The glove
compartment contained evidence of insurance in Alvarez’s name. In the trunk was a juvenile minute order in
Alvarez’s name. At trial, Rodriguez
identified the bloodstained jeans as belonging to Alvarez.
2. The
Defense Case
Alvarez presented a duress defense
to the robbery and false imprisonment charges, and an accident defense to the
attempted murder charge and the allegation that he personally and intentionally
discharged the gun.
Alvarez testified on his own
behalf. When Alvarez was about
17 years old, he met Drennan, who Alvarez believed was older. They went to parties, drank, and smoked
marijuana and crystal methamphetamine together.
Alvarez’s stepfather kicked Alvarez out of the house when Alvarez turned
18 and received a “settlement check†for over $11,000. Alvarez began staying with Drennan, who was
his good friend. During a two-month period,
Alvarez spent $6,000 of his settlement money to buy crystal methamphetamine and
smoke it with Drennan.
On the afternoon before the
shooting, Alvarez and Drennan were drinking and smoking marijuana and crystal
methamphetamine. Drennan, who had
escaped from a hospital, was mad at Rodriguez and told Alvarez that he planned
to rob Rodriguez. Alvarez did not think
Drennan was serious, but played along to impress Drennan.
Drennan told Alvarez that John-John
was going to drive that night. When
John-John stopped the car at the Shell gas station and Rodriguez went inside,
Drennan handed Alvarez a small gun.
Alvarez had never used a gun before.
Either when Alvarez took the gun or when Drennan and John-John later got
out of the car at the vista point, Alvarez realized Drennan was serious about
robbing Rodriguez. Alvarez believed that
Drennan and John-John had another gun, although he never saw one. Alvarez was scared that, if he did not go
along with the robbery, Drennan and John-John would shoot him. Alvarez knew that Drennan was a “bad dude,â€
who had talked about robberies and carrying guns.
At the vista point, Alvarez wanted
to get out of the car, but the child safety lock on his door was locked. When Drennan and John-John leaned against
Rodriguez’s door, Alvarez pointed the gun at Rodriguez and told him to
“ ‘Give me everything.’ â€
Drennan yelled at Alvarez that he had “better use it[.]†Rodriguez gave Alvarez some items. At some point, however, Rodriguez grabbed the
gun and got on top of Alvarez. Drennan
yelled at Rodriguez to get off Alvarez or he would stab him. Rodriguez got off Alvarez, and Alvarez
punched him. Drennan and John-John
opened Rodriguez’s door and started beating him. When Rodriguez tried to get out of the car,
Alvarez tried to pull him back because he did not want Drennan or John-John to
shoot Rodriguez. As Alvarez grabbed
Rodriguez, the gun “accidentally went off.â€
Alvarez never meant to shoot Rodriguez.
Alvarez denied pushing Rodriguez out of the car; Alvarez believed that
Drennan and John-John pulled Rodriguez out of the car. Alvarez did not help Rodriguez because he was
afraid of Drennan and John-John.
After the shooting, Drennan and
John-John asked for the gun, so Alvarez gave it back to them. After dropping off John-John, Drennan drove
to a “dope house†in Pittsburg, where he and Alvarez smoked crystal
methamphetamine. After Drennan left,
Alvarez stayed at the house for three days.
On June 15, 2008, Alvarez turned himself in to the police.
C. The Verdict and Sentence
The jury was unable to reach a
verdict on the attempted murder charge (count 1), and the court declared a
mistrial on that count. The jury
convicted Alvarez on the robbery and false imprisonment charges (counts 2 and
3). As to count 2, the jury found true
the enhancement allegation concerning personal and intentional discharge of a
firearm causing great bodily injury (§ 12022.53, subd. (d));
as to counts 2 and 3, the jury found true the allegation that Alvarez
personally inflicted great bodily injury (§ 12022.7, subd. (a)).
The court sentenced Alvarez to a
determinate term of three years and eight months imprisonment (the three-year
midterm for robbery, plus eight months (one-third the midterm) for false
imprisonment), and a consecutive indeterminate sentence of 25 years to life for
the firearm enhancement (§ 12022.53, subd. (d)). The court stayed sentence on the great bodily
injury enhancement (§ 12022.7, subd. (a)) pursuant to section
654. Alvarez filed a timely notice of
appeal.
II. Discussion
A. Drennan’s Invocation of the Fifth Amendment Privilege
1. Background
The original complaint charged both
Alvarez and Drennan with attempted murder, robbery, and false
imprisonment. According to statements by
counsel for the parties during trial court proceedings, Drennan entered a plea
of guilty to the robbery count (and to a robbery charge in another case), in
exchange for a seven-year prison sentence.
By the time of Alvarez’s trial, Drennan was serving his prison sentence,
and his time to appeal had expired.
At the request of Alvarez’s
counsel, the trial court ordered that Drennan be brought from prison to testify
at trial. In his declaration in support
of this request, Alvarez’s counsel stated that Drennan made statements to the
police that were exculpatory, specifically “that the shooting was
accidental.†Alvarez’s counsel also stated
that Drennan “made statements to third party witnesses that it was his idea to
rob the victim.†Counsel stated that
“without Mr. Drennan’s testimony, the defense will be unable to adequately
represent [Alvarez].â€
Before the defense began presenting
witnesses (and out of the presence of the jury), Drennan’s counsel informed the
court that Drennan would assert his Fifth Amendment privilege against
self-incrimination.
title="">[5] Drennan’s counsel stated that Drennan still
faced potential criminal liability because, if Rodriguez later died from his
injuries, the prosecution could charge Drennan with murder. Drennan’s counsel stated that, “if [the
privilege claim is] overruled by the Court, then I think [Drennan] will testify.â€
Alvarez’s counsel argued that Alvarez
had a due process right to put on witnesses.
Alvarez’s counsel contended that Drennan’s counsel had not met his
burden to show that Drennan could be prosecuted for homicide or that it was
reasonable to believe Rodriguez could later die from his injuries. Alvarez’s counsel also noted that the cases
relied on by Drennan’s counsel allowed subsequent prosecution after a victim
died from his or her injuries; the cases did not involve assertions of the
possibility that a victim might die in the future.
The court held an Evidence Code
section 402 hearing, at which Drennan was sworn as a witness. Alvarez’s counsel asked Drennan if he had
been with Alvarez on June 12, 2008, and Drennan responded by asserting his
Fifth Amendment privilege. Drennan then
confirmed that he would assert the privilege in response to any question
Alvarez’s counsel asked.
Alvarez’s counsel noted that the
prosecutor could grant Drennan immunity, but the court could not compel her to
do so. The prosecutor stated that she
did not intend to grant Drennan immunity.
The court ruled that Drennan had
the right to assert the Fifth Amendment privilege. The court noted the parties’ stipulation as
to the serious nature of Rodriguez’s injuries—“the bullet remains lodged in his
rib cage, and there’s bullet fragments throughout his chest area.†The court also noted that the Fifth Amendment
is to be liberally construed, and concluded that Drennan could be prosecuted for
homicide if Rodriguez later died from his injuries. The court noted that there is no statute of
limitations for murder (§ 799), and that, if a victim such as Rodriguez
were to die more than three years and a day after his injury, there would only
be a rebuttable presumption that the killing was not criminal
(§ 194). The court therefore
concluded that “Mr. Drennan, quite frankly, is on potentially the hook for
murder should [Rodriguez] succumb to the injuries that were inflicted on the
night in question.â€
2. Analysis
Alvarez contends that the trial
court erred when it ruled that Drennan could assert his Fifth Amendment
privilege. Alvarez further argues that
the trial court, by so ruling, violated Alvarez’s federal and state constitutional
rights to compulsory process and to present a defense, and that the error
requires reversal, either because it was a structural error, or because it was
not harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18 (Chapman). We conclude that,
even if the trial court erred in ruling that Drennan could assert the Fifth
Amendment privilege (a question we do not decide), the ruling did not violate
Alvarez’s constitutional rights, and was harmless under the
nonconstitutional errors (People v.
Watson (1956) 46 Cal.2d 818, 836).
In
People v. Seijas
(2005) 36 Cal.4th 291 (Seijas), our
Supreme Court summarized the standards governing a witness’s invocation of the
Fifth Amendment. “It is a bedrock
principle of American (and California) law, embedded in various state and
federal constitutional and statutory provisions, that witnesses may not be
compelled to incriminate themselves. . . . [T]his privilege ‘must be
accorded liberal construction in favor of the right it was intended to
secure.’ [Citation.] A witness may assert the privilege who has
‘reasonable cause to apprehend danger from a direct answer.’ [Citations.]
However, ‘The witness is not exonerated from answering merely because he
declares that in so doing he would incriminate himself—his say-so does not of
itself establish the hazard of incrimination.’
[Citation.] The court may require
the witness ‘to answer if “it clearly appears to the court that he is
mistaken.†’ [Citation.] ‘To sustain the privilege, it need only be
evident from the implications of the question, in the setting in which it is
asked, that a responsive answer to the question or an explanation of why it
cannot be answered might be dangerous because injurious disclosure could
result.’ [Citation.] To deny an assertion of the privilege, ‘the
judge must be “ ‘perfectly clear, from a careful consideration of
all the circumstances in the case, that the witness is mistaken, and that the
answer[s] cannot possibly have such tendency’ to incriminate.†’ [Citations.]
[¶] California’s Evidence Code states the test broadly in favor of
the privilege: ‘Whenever the proffered evidence is claimed to be privileged
under Section 940 [the privilege against self-incrimination], the person
claiming the privilege has the burden of showing that the proffered evidence
might tend to incriminate him; and the proffered evidence is inadmissible
unless it clearly appears to the court that the proffered evidence cannot
possibly have a tendency to incriminate the person claiming the
privilege.’ (Evid.Code, § 404,
italics added.)†(Seijas, at
pp. 304–305.)
At the time of Alvarez’s
trial, Drennan had entered a guilty plea to robbery in connection with the
events of June 12, 2008; his time to appeal had expired; and he was serving his
prison sentence. Courts have held that,
“[w]hen a defendant has already pled guilty to a charge, and time to appeal the
conviction has run without an appeal being filed, the defendant’s privilege to
avoid compelled self-incrimination with regard to the facts underlying the
conviction no longer exists.
[Citations.]†(People v. Lopez
(1999) 71 Cal.App.4th 1550, 1554; accord, People
v. Sisneros (2009) 174 Cal.App.4th 142, 151; see Mitchell v. United States (1999) 526 U.S. 314, 326 [“where there can
be no further incrimination, there is no basis for the assertion of the
privilegeâ€].) Here, however, Drennan’s
counsel argued, and the trial court held, that Drennan could assert the Fifth
Amendment privilege because, if Rodriguez were to die from his injuries,
Drennan could face prosecution for homicide.
Under the double jeopardy
provisions of the United States and California Constitutions, a defendant’s
conviction or guilty plea bars a subsequent prosecution for the “same offenseâ€
(People v. Scott (1997) 15 Cal.4th
1188, 1201 (Scott)), which generally
precludes trying the defendant for a greater offense after he has been
convicted of a lesser included offense (In
re Saul S. (1985) 167 Cal.App.3d 1061, 1065 (Saul S.)). However, an
exception to traditional double jeopardy analysis applies when the prosecution
was unable to proceed on the more serious charge in the initial prosecution
because a fact necessary to sustain that charge (such as the victim’s death)
had not yet occurred. (
an injury-causing crime, and the victim subsequently dies from the injuries,
double jeopardy principles do not preclude prosecuting the defendant for
homicide. (See Diaz v. United States (1912) 223 U.S. 442, 448–449;
515; People v. Bivens (1991)
231 Cal.App.3d 653, 661–663; People
v. Breland (1966) 243 Cal.App.2d 644, 650–652; Saul S., at p. 1068.)
The parties dispute whether
this exception to double jeopardy principles warrants a witness’s invocation of
the Fifth Amendment privilege based
on the possibility that a victim may die in the future from his or her
injuries. The People argue that, “under
the unique circumstances of this case,†and in light of the seriousness of
Rodriguez’s injuries, Drennan could face a future prosecution for homicide, so
the trial court was correct in ruling he could assert the Fifth Amendment
privilege. Alvarez contends that the
above double jeopardy cases are “inapposite,†and that the Fifth Amendment
privilege did not apply, because (1) Drennan could not incriminate himself
for a homicide that had not yet occurred, (2) Drennan’s guilty plea to
robbery already subjected him to prosecution for felony murder, and any
testimony he provided could not further incriminate him, and (3) Drennan’s
guilty plea would preclude a future prosecution.
We need not determine whether
the trial court erred by ruling that Drennan could assert the Fifth Amendment
privilege, because we conclude that any such error was harmless. Alvarez contends that the court’s ruling “violated
[Alvarez’s] constitutional right to compel the attendance of witnesses and to
enjoy a meaningful opportunity to present a full defense[.]†(See Crane v. Kentucky (1986) 476 U.S. 683, 690; In re Martin (1987) 44 Cal.3d 1, 29–30.) He argues that therefore the error either is
reversible per se or is
reversible unless harmless beyond a reasonable doubt, the standard set forth in
Chapman, supra, 386 U.S. 18. We
disagree.
Where a trial
court’s erroneous ruling is not a refusal to permit a defendant to present a
defense, but only rejects certain evidence relating to the defense, the error
is nonconstitutional and is analyzed for prejudice under Watson, supra, 46 Cal.2d
818, i.e., reversal is appropriate only if it is reasonably probable that the
defendant would have obtained a more favorable result absent the error. (People
v. Bradford (1997) 15 Cal.4th 1229, 1325; People v. Fudge (1994) 7 Cal.4th 1075, 1103; People v. Garcia (2008) 160 Cal.App.4th 124, 126, 133 (
to order removal from prison of several inmates who would have testified for
defendant was nonconstitutional error].)
For example, in People v. Cudjo
(1993) 6 Cal.4th 585 (Cudjo), the
trial court erroneously excluded the testimony of a proffered defense witness
(who testified, in a hearing out of the jury’s presence, that the defendant’s
brother had confessed to the crime) on the basis that the testimony was not
credible. (Id. at pp. 604–606, 610.)
The Supreme Court held that this error was not a constitutional one, and
therefore the Watson standard for
prejudice applied. (Cudjo, at pp. 610–612.)
Under that standard, the error was harmless in light of the strong
evidence of the defendant’s guilt. (
Here, the trial
court did not preclude Alvarez from presenting his defense.
Amendment privilege, the court, at most, precluded the presentation of some
evidence concerning the defense.
name="_ftnref8" title="">[8] Alvarez was able to present his defense
without Drennan’s testimony. As Alvarez
notes in his opening brief on appeal, the “heart†of his defense was that he
accidentally shot Rodriguez.
name="_ftnref9" title="">[9] Alvarez testified to this himself—he stated
that “[i]t was an accident the gun even went off[,]†a point he repeated
several times during his testimony. In
addition, Rodriguez, under questioning by both the prosecution and the defense,
provided testimony that Alvarez claims supports his defense of
accident—specifically, Rodriguez testified that, after the shooting, Drennan
stated repeatedly, “ ‘This isn’t the way this is supposed to
happen.’ †The jury also heard
evidence about the circumstances of the offense that Alvarez argues are more
consistent with his theory of accident than with a conclusion that he
intentionally fired the shot. For
example, Alvarez contends that he would not have been likely to intentionally
discharge a firearm when the car was parked so close to other (possibly
occupied) vehicles, that the brief scuffle between Rodriguez and his assailants
was “conducive to an accidental discharge of the firearm,†and that, because
Drennan and John-John were just outside the open car door, “in the line of
fire,†it is “logical to assume†Alvarez would not intentionally fire the gun
and risk hitting them. Defense counsel
also made some of these points in closing argument. Because this evidence was presented to the
jury, the court’s privilege ruling did not deprive Alvarez of the right to
present his defense. Accordingly, the
Under the Watson standard,
the trial court’s privilege ruling, even if erroneous, was harmless. As an initial matter, even if the trial
court had rejected Drennan’s privilege claim and ordered him to testify, it is
not clear whether he would have done so.
would have provided little coercive effect, given that Drennan was already
incarcerated for a substantial period.
Further, if Drennan had testified, it is not clear that he would have
provided helpful testimony as Alvarez hoped.
As Alvarez notes, “it is impossible to determine with any degree of
certitude what [Drennan’s] testimony would have been.â€
In any event, even if Drennan had
testified that he believed the shooting was accidental, it is not reasonably
probable that Alvarez would have obtained a more favorable result, because Alvarez’s accident defense
was fully explored before the jury. (See
Garcia, supra, 160 Cal.App.4th
at p. 134 [error resulting in exclusion of testimony harmless where
defense fully explored before the jury].)
As noted above,
the evidence included Alvarez’s testimony that the gun accidentally went off,
Drennan’s statement that “ ‘[t]his isn’t the way this is supposed to
happen[,]’ †and the circumstantial evidence that Alvarez contends
supports the accidental discharge theory. The
jury nevertheless rejected Alvarez’s position and concluded that he intentionally
discharged the gun. It is not reasonably
probable that the jury would have reached a different conclusion if it had
heard Drennan testify that he believed the shooting was an accident. Whether Alvarez intentionally pulled the
trigger or not was a matter uniquely within Alvarez’s knowledge, and Drennan
could not have testified to Alvarez’s mental state at the moment of the
shooting. Moreover, to the extent
Drennan might have testified that he and Alvarez did not plan in advance to
shoot Rodriguez, such testimony may well have been relevant to the charge of
attempted murder (on which there was no verdict), but would not be inconsistent
with the conclusion that, during the scuffle with Rodriguez, Alvarez
intentionally fired the gun.
Alvarez contends that the
jury’s conclusion that he intentionally discharged the gun is inconsistent with
its failure to reach a verdict on the attempted murder charge; he argues that
this inconsistency shows the case was close and the trial court’s ruling was
prejudicial. (See, e.g.,
1389, 1394, 1398; People v. Epps
(1981) 122 Cal.App.3d 691, 698 [where verdict reflected jury’s “selective
belief in the evidence,†erroneous admission of other crimes evidence was
prejudicial].) We disagree. The jurors’ conclusion that Alvarez
intentionally fired the gun during the struggle with Rodriguez is not
inconsistent with its inability to reach a verdict on the question of whether
Alvarez intended to kill Rodriguez.
Indeed, in closing argument, defense counsel argued forcefully that, if
Alvarez had intended to kill Rodriguez, he would not have stopped after
shooting him once. Noting Rodriguez’s
testimony that he had seen multiple bullets in the gun’s chamber, defense
counsel stated: “So if your intention,
as [the prosecutor] is asserting in this case, is that you’re going to kill
someone, you’re going to empty that pistol in them, you know.†Defense counsel later reiterated this point,
noting that Alvarez did not shoot Rodriguez again after he had gotten out of
the car and was lying on the ground. “If
you want to kill this guy, you shoot him once, he’s out on the ground, you just
walk over to him and empty that gun in him, and you’re assured that he’s gone.†The jury’s inability to reach a verdict as to
whether Alvarez intended to kill Rodriguez does not show a reasonable
probability that, in the absence of the trial court’s alleged error, Alvarez
would have obtained a more favorable result on the different question of
whether Alvarez intended to discharge the gun.
B. Ineffective Assistance of Counsel
Alvarez contends his trial counsel
provided ineffective assistance by (1) introducing expert psychological
testimony about Alvarez’s nonviolent character, thereby allowing the prosecutor
to refer to Alvarez’s prior misconduct during cross-examination of the expert,
and (2) failing to introduce certain exculpatory evidence. On the record before us on direct appeal, we
find no basis for reversal of the judgment.
1. Legal
Standards
“To prevail on a claim of
ineffective assistance of counsel, a defendant ‘must establish not only
deficient performance, i.e., representation below an objective standard of
reasonableness, but also resultant prejudice.
[Citation.] Tactical errors are
generally not deemed reversible; and counsel’s decisionmaking must be evaluated
in the context of the available facts.
[Citation.] To the extent the
record on appeal fails to disclose why counsel acted or failed to act in the
manner challenged, we will affirm the judgment “unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no
satisfactory explanation . . . .†[Citation.]
Finally, prejudice must be affirmatively proved; the record must
demonstrate “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.†[Citations.]’
[Citations.]†(People v. Hart
(1999) 20 Cal.4th 546, 623–624; see also People
v. Mendoza Tello (1997) 15 Cal.4th 264, 266 (Mendoza Tello) [“ ‘ “[if] the record on appeal sheds no
light on why counsel acted or failed to act in the manner challenged[,]
. . . unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory explanation,†the
claim on appeal must be rejected’ â€]; People v. Fosselman (1983) 33
Cal.3d 572, 581 (Fosselman) [on
direct appeal, reviewing court will reverse conviction on the ground of
ineffective assistance of counsel “only if the record on appeal affirmatively
discloses that counsel had no rational tactical purpose for his act or
omissionâ€].)
2. Introduction
of Expert Testimony
a. Background
Prior to trial, Alvarez moved in
limine to introduce expert psychological testimony about Alvarez’s character
trait for nonviolence. The prosecutor
moved to exclude the testimony, arguing that the expert should not be permitted
to testify as to whether Alvarez possessed the mental state required for
conviction. The trial court ruled the
testimony was admissible as character evidence.
After the close of the
prosecution’s case, the prosecutor stated that defense counsel had incorrectly
stated in his opening statement that Alvarez had not been involved in the legal
system prior to the current incident.
The prosecutor had since reviewed Alvarez’s juvenile court file, which
reflected that Alvarez had 32 disciplinary referrals, for matters including disruptive
behavior and fighting, including a gang-related fight. Alvarez was also suspended for shooting a
classmate with a weapon made out of pencils and a large rubber band, and on
another occasion for threatening other students by brandishing a paring knife
over his head. Alvarez apparently had no
sustained juvenile petitions. The
prosecutor asked the court to authorize her to use the information when she
cross-examined Alvarez and his expert witness, Dr. Howard Friedman, because it
was relevant to whether Alvarez had a nonviolent character.
Defense counsel objected, arguing
that the information in the juvenile court file was unreliable hearsay, and was
unsupported by any sustained petitions, documentation or other evidence. He also argued that any evidence of gang
involvement was more prejudicial than probative.
The trial court ruled that the
prosecutor could use the information in Alvarez’s juvenile court file for
impeachment purposes during the cross-examination of Dr. Friedman. The court stated that, since Alvarez was
presenting evidence of his nonviolent character through Dr. Friedman,
cross-examination about his alleged violent conduct was “fair game.†The court noted that a defendant’s
introduction of character evidence can be “dangerous,†because it can result in
jurors hearing more about the defendant’s background than they otherwise
would. As to Alvarez’s hearsay
objection, the court noted that the information was not being admitted for its
truth, but to challenge the character witness’s opinion about Alvarez’s
nonviolent character. The court
concluded that, because the prosecutor’s questions would be based on
information in the juvenile court file, they would be asked in good faith.
On direct examination, Dr.
Friedman, a clinical
neuropsychologist, opined that, based on his evaluation, Alvarez was not a
sociopath, did not have an aggressive or violent personality, and did not have
antisocial attitudes. Dr. Friedman
testified that alcohol would cause a person with Alvarez’s personality
characteristics to have less control over his behavior; in a violent situation
or if others pushed him toward violence, he would have difficulty managing and
restricting his behavior. Dr. Friedman
testified that his testing indicated that Alvarez had some problems with acting
out, but not at a level that would suggest he would be violent. Alvarez told Dr. Friedman that he had been
involved in fights at school. After
evaluating Alvarez but before testifying, Dr. Friedman reviewed materials from
Alvarez’s juvenile file. Nothing in
those materials changed Dr. Friedman’s conclusions about Alvarez.
During the prosecutor’s brief
cross-examination, Dr. Friedman testified that he had read Alvarez’s juvenile
file earlier that day. He had not read
the police reports until after he prepared his report. Dr. Friedman testified that, although Alvarez
told Dr. Friedman that his legal problems did not begin until he was 18,
Alvarez still was a good source of information because he told Dr. Friedman
about most of the information in his juvenile file (without specifying his age
when the events occurred). Alvarez told
Dr. Friedman he had possessed a knife at school, but did not tell him about a
separate incident in which he threatened other students with a knife. Dr. Friedman conceded that there were some
indicators of violence in Alvarez’s life, because he had been in numerous
fights while growing up. Dr. Friedman
also agreed that it is violent to rob another person, point a gun at his head
and neck, shoot him in the back, and push him out of a car and leave him for
dead.
On redirect, Dr. Friedman testified
that people generally act in conformity with their character and personality,
but that it is not possible to predict how an individual will act at a particular
time. Part of a psychologist’s job is to
look for reasons when a person acts outside of his or her character and
personality.
b. Analysis
Evidence Code section 1101
generally precludes the introduction of character evidence to prove a person’s
conduct on a particular occasion. (Evid.
Code, § 1101, subd. (a).)
Under Evidence Code section 1102, a criminal defendant may offer
evidence of his character or a trait of his character “to prove his conduct in
conformity with such character or trait of character†(Evid. Code, § 1102,
subd. (a)), and the prosecution may offer character evidence in rebuttal
(Evid. Code, § 1102, subd. (b)).
If a defense witness gives character testimony about the defendant, the
prosecutor may cross-examine the witness by asking if he or she has heard of
acts or conduct by the defendant that are inconsistent with the witness’s
testimony. (People v. Ramos (1997) 15 Cal.4th 1133, 1173.)
Alvarez contends that, because the
trial court ruled the prosecutor could impeach Dr. Friedman by asking him about
Alvarez’s prior alleged conduct, defense counsel performed deficiently by
nevertheless deciding to introduce Dr. Friedman’s character testimony. We reject this argument, because the record
does not disclose that trial counsel’s decision lacked a tactical basis, and
the decision is not of the type for which there could be no satisfactory
explanation. (See Hart, supra, 20 Cal.4th
at pp. 623–624, 625, 629, 633; Mendoza Tello, supra, 15 Cal.4th at p. 266;
Fosselman, supra, 33 Cal.3d at p. 581.) Based on the present record, defense counsel
reasonably could have concluded that, despite the risk of impeachment, Dr.
Friedman’s testimony would bolster Alvarez’s accident and duress defenses.
Dr. Friedman’s testimony that
Alvarez was not a sociopath or a violent person supported the defense theory
that Alvarez shot Rodriguez accidentally, rather than intentionally. Although the prosecutor sought to impeach
this testimony by asking Dr. Friedman about Alvarez’s fights at school, his
possession of a knife at school, and his threatening other students with a
knife, that conduct was less serious than the crimes charged in the present
case. Accordingly, a tactical decision
to present evidence suggesting that an intentional shooting was inconsistent with
Alvarez’s character (despite the risk of impeachment with incidents of lesser
misconduct) would be consistent with defense counsel’s effort to persuade the
jury that the shooting was accidental.
Dr. Friedman also testified that
alcohol could cause a person with Alvarez’s personality characteristics to have
less control over his behavior, and, if the situation involved violence or if
others were pushing him toward violence, he would have difficulty managing and
restricting his behavior. Defense counsel
could have reasonably concluded that this testimony would bolster the defense
theory that Alvarez was afraid of Drennan and John-John and acted under duress
when he participated in the crimes against Rodriguez. Accordingly, on the basis of the facts disclosed
by the record, defense counsel could have had a reasonable tactical basis for
his decision to present Dr. Friedman’s testimony.
Alvarez cites cases in which courts
found defense counsel performed deficiently by failing to object to damaging
evidence that otherwise would have been inadmissible. (See, e.g., In re Wilson (1992) 3 Cal.4th 945, 955–956 [in habeas corpus
proceeding, trial counsel’s declaration established he had no tactical reason
for failure to object]; People v. Ledesma
(1987) 43 Cal.3d 171, 226–227; People v.
Robertson (1982) 33 Cal.3d 21, 41–42; People
v. Nation (1980) 26 Cal.3d 169, 178–179.)
These cases are inapposite.
Defense counsel did object to the prosecution’s planned use of Alvarez’s
juvenile record to cross-examine Dr. Friedman, but that examination was
permissible in light of defense counsel’s tactical decision to introduce Dr.
Friedman’s testimony. (See
p. 1173.)
Alvarez also cites cases from other
jurisdictions in which courts found defense counsel performed deficiently by
introducing or eliciting harmful evidence.
(See, e.g., United States v.
Villalpando (8th Cir. 2001) 259 F.3d 934, 939 [defense counsel elicited
harmful testimony during cross-examination of witness]; Glancy v. State (Fla.App. 2006) 941 So.2d 1201, 1203 [same];
588 S.E.2d 797, 798 [defense counsel introduced harmful evidence].) Here, defense counsel did not introduce
harmful evidence; instead, he introduced what he apparently hoped would still
be helpful character evidence, despite being subject to impeachment on
cross-examination. As discussed above,
the record does not disclose the ultimate reasons for counsel’s tactical
choice, and it is not of the type that could have no reasonable basis.
Because the appellate record does
not establish that trial counsel’s performance was deficient, we need not
address the parties’ arguments as to whether the alleged deficiency prejudiced
Alvarez.
3. Failure
to Present Exculpatory Evidence
a. Background
In his declaration supporting his
request for removal of Drennan from prison to testify, Alvarez’s trial counsel
stated that Drennan made statements to the police that were exculpatory as to
Alvarez, specifically “that the shooting was accidental.†Alvarez’s counsel also stated that Drennan
“made statements to third party witnesses that it was his idea to rob the
victim.†After Drennan asserted the
Fifth Amendment privilege, Alvarez’s trial counsel did not seek to introduce
the above statements through the testimony of the persons to whom Drennan
allegedly spoke.
b. Analysis
Alvarez contends that his trial
counsel provided ineffective assistance because he failed to introduce evidence
of Drennan’s alleged out-of-court statements.
This contention is unavailing, because the record on appeal does not
reveal the basis for trial counsel’s decision not to seek to introduce this
evidence, and that decision is not of the type for which there could be no
satisfactory explanation. (See
Tello, supra,
15 Cal.4th at p. 266; Fosselman, supra, 33 Cal.3d at p. 581.) The record on appeal does not reveal the
identities of the third party witnesses, much less the full content of their
potential testimony. If Drennan told the
witnesses about his and Alvarez’s involvement in the crimes, such statements
may well have been inculpatory as to Alvarez, in addition to the potentially
helpful statements described in trial counsel’s declaration. We do not know if Drennan’s statements were
consistent or inconsistent with Alvarez’s duress defense. Moreover, trial counsel may not have been
able to ascertain exactly what the witnesses would say if called to testify. Based on the present record, defense counsel
reasonably could have concluded that the witnesses in question would provide
testimony more harmful to Alvarez than helpful.
Because the record on appeal does
not establish counsel’s deficient performance, we do not address the parties’
arguments as to whether Drennan’s alleged out-of-court statements would have
been admissible, or whether counsel’s allegedly deficient performance was
prejudicial.
C. The Firearm Use Instruction
1. Background
In connection with counts 1 and 2,
the amended information alleged as enhancements that Alvarez: (1) personally used a firearm
(§ 12022.53, subd. (b)); (2) personally and intentionally
discharged a firearm (§ 12022.53, subd. (c)); and (3) personally
and intentionally discharged a firearm causing great bodily injury (§ 12022.53,
subd. (d)). The prosecutor
submitted a proposed instruction based on CALCRIM No. 3149, the
instruction for the section 12022.53, subdivision (d) enhancement. Neither party requested instructions on the
enhancements in section 12022.53, subdivisions (b) and (c).
In connection with his defense that
the shooting was accidental (and therefore he was not guilty of attempted
murder or intentional discharge of a firearm), Alvarez submitted a proposed
instruction based on CALCRIM No. 3404.
While discussing this proposed instruction, the trial court and the
parties agreed that it should refer to the enhancement in section 12022.53,
subdivision (d) (intentional discharge with great bodily injury), but not
the enhancement in section 12022.53, subdivision (c) (intentional
discharge), because there was no basis for a jury finding that Alvarez
intentionally discharged the gun but did not cause great bodily injury to the
victim. The court and the parties had
the following exchange:
“THE
COURT: . . . So if it reads—you’re
in agreement then if it reads, ‘The defendant is not guilty of attempted murder
or the allegation of personal and intentional discharge of a firearm, a
handgun, which proximately caused great bodily injury to O.R. within the
meaning of Penal Code section 12022.53?’
Would we have (d) or (c), because I don’t—I think the evidence here is
either there’s the discharge of a firearm with great bodily injury or nothing,
because I don’t think there’s any testimony that—that the complaining witness
didn’t suffer anything but great bodily injury.
“[DEFENSE
COUNSEL]: Right. Right.
No, but it’s just—I just did it according to the Information.
“[PROSECUTOR]: Right.
“THE
COURT: I know. This is not a criticism. This is—
“[PROSECUTOR]: No. I
agree. I mean, I don’t think they’re
going to find that he shot the gun but didn’t cause great bodily injury.
“THE
COURT: Right. So we should just tell them 12022.53
subdivision (d), correct?
“[PROSECUTOR]: Right.
“THE
COURT: Do you agree, [defense counsel]?
“[DEFENSE
COUNSEL]: Yes, I agree.â€
After the court read the proposed
accident instruction with the reference only to section 12022.53,
subdivision (d), defense counsel confirmed that he agreed with the
instruction.
Later in the jury instruction conference,
the court and the parties discussed the instructions on the elements of the
charged crimes and enhancements, and noted that neither the instructions nor
the verdict form should refer to the enhancement in section 12022.53,
subdivision (c). They decided not
to use CALCRIM No. 3150, which is appropriate when the enhancements in
section 12022.53, subdivisions (c) and (d) are both charged. (See CALCRIM No. 3150, Bench Notes.) The parties did not discuss the enhancement
in section 12022.53, subdivision (b) (personal use of a firearm), or
CALCRIM No. 3146, the instruction covering that enhancement. At the conclusion of the conference, the
parties confirmed they had no objections or additions to the court’s
instructions.
The court subsequently instructed
the jury on the section 12022.53, subdivision (d) enhancement, using a
modified version of CALCRIM No. 3149.
The court also instructed the jury on the defense of accident, using a
modified version of CALCRIM No. 3404 that referred only to the section 12022.53,
subdivision (d) enhancement. The
court did not instruct the jury on the enhancements in section 12022.53,
subdivisions (b) and (c).
The verdict form, which both
parties approved, asked the jury to determine the applicability of the section
12022.53, subdivision (d) enhancement.
The verdict form did not refer to the enhancements in section 12022.53,
subdivisions (b) and (c), and did not ask the jury to determine whether
those enhancements applied.
2. Analysis
Alvarez contends that the trial
court had a sua sponte duty to
instruct the jury on the section 12022.53, subdivision (b) enhancement,
either because that enhancement was charged in the information, or because “it
is a lesser included to†the section 12022.53, subdivision (d)
enhancement. We disagree.
The People initially suggest that
Alvarez, by failing to object to the prosecutor’s request to instruct on the
section 12022.53, subdivision (d) enhancement (CALCRIM No. 3149), and
by agreeing that the accident instruction (CALCRIM No. 3404) should refer
only to that enhancement, forfeited his claim of instructional error under the
doctrine of invited error. We reject
this argument. “Invited error
. . . will only be found if counsel expresses a deliberate tactical
purpose in resisting or acceding to the complained-of instruction.†(People
v. Valdez (2004) 32 Cal.4th 73, 115.)
Here, the record does not reflect that the trial court or the parties
considered or discussed whether to instruct on the section 12022.53,
subdivision (b) enhancement (although they expressly decided not to
instruct on the section 12022.53, subdivision (c) enhancement), much less
that defense counsel expressed a deliberate tactical purpose for withholding
such an instruction. (See
[invited error doctrine did not apply where record was ambiguous as to whether
instructions on all potential lesser included offenses]; People v. Moon (2005) 37 Cal.4th 1, 28 [record showed no tactical
reason for defense counsel’s acquiescence in instruction].) The invited error doctrine does not apply.
Turning to the merits, Alvarez
contends that, even if the section 12022.53, subdivision (b) enhancement
had not been charged in the information, the trial court had a sua sponte duty
to instruct on it as a “lesser included to†the section 12022.53,
subdivision (d) enhancement. “[A] trial court must instruct on lesser
included offenses, even in the absence of a request, whenever there is
substantial evidence raising a question as to whether all of the elements of
the charged offense are present.
[Citations.]†(
645; accord, People v. Cook (2001)
91 Cal.App.4th 910, 917.) In
410 (Majors), the California Supreme
Court expressly held that a trial court has no duty to instruct sua sponte on
“so-called ‘lesser included enhancements.’ †The court explained: “One of the primary reasons for requiring
instructions on lesser included offenses is ‘ “to eliminate the distortion
of the factfinding process that is created when the jury is forced into an
all-or-nothing choice between [guilt] and innocence†’—that is, to eliminate
‘ “the risk that the jury will convict . . . simply to avoid
setting the defendant free.†’
[Citation.] This risk is wholly
absent with respect to enhancements, which a jury does not even consider unless
it has already convicted defendant of the underlying substantive
offenses.†(Id. at pp. 410–411.)
This court is bound by the holding in Majors. (
(1962) 57 Cal.2d 450, 455.)
Alvarez
argues that the holding in Majors has
been undercut by subsequent authority, including Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v.
Washington (2004) 542 U.S. 296 (Blakely),
and People v. Seel (2004) 34 Cal.4th
535 (Seel). Alvarez asserts that these cases have
“eviscerated Major’s distinction
between a sentence enhancement and a substantive offense because the essential
principle underlying the Apprendi
line of cases is that there can be no constitutionally meaningful difference
between the two.†We disagree. In Apprendi,
the United States Supreme Court held that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond
maximum must be submitted to a jury, and proved beyond a reasonable
doubt.†(Apprendi, at p. 490; accord, Blakely, at pp. 301, 303–305 [under Apprendi, facts that authorize sentence longer than that authorized
by jury verdict must be found by jury rather than judge].) In Seel,
our Supreme Court held that, in light of Apprendi,
double jeopardy protections precluded retrial of premeditation allegations
after a finding of evidentiary insufficiency.
(Seel, at p. 539.)
The cited
cases do not undercut the holding in Majors
that the trial court has no obligation to instruct sua sponte on lesser
included enhancements. As to
does not remove from the jury the ability to act as the factfinder to increase
the penalty for a crime beyond the maximum sentence that would be available for
a conviction of the underlying offense alone.
Here, for example, the jury, not the trial court, determined the section
12022.53, subdivision (d) enhancement applied. Similarly, the Seel court’s double jeopardy holding can be applied consistently
with Majors, in the event an
enhancement is reversed following a finding of insufficient evidence. We thus follow Majors, and we decline to impose an obligation to instruct sua
sponte on lesser included enhancements.
In
addition to his argument about lesser included enhancements, Alvarez contends
that the trial court was obligated to instruct on the section 12022.53,
subdivision (b) enhancement because it was alleged in the
information. The trial court must
instruct sua sponte on “the general principles of law relevant to and governing
the case,†including the elements of charged offenses. (People
v. Cummings (1993) 4 Cal.4th 1233, 1311; see People v. Sengpadychith (2001) 26 Cal.4th 316, 324 (
v. Wims (1995) 10 Cal.4th 293 (Wims),
overruled on other grounds in Sengpadychith,
at pages 325–326, our Supreme Court applied that obligation to
enhancements, holding that “a defendant is entitled to proper jury instructions
regarding the meaning of a weapon use enhancement allegation which is tried to
a jury.†(Wims, at p. 303; accord, People
v. Najera (1972) 8 Cal.3d 504, 510 (Najera), approved in part and disapproved in part in
588.) When a trial court submits an
enhancement allegation to the jury for decision, the court’s failure to
instruct on an element of the enhancement is error—the failure is federal
constitutional error if submission of the enhancement to the jury is
constitutionally required under Apprendi;
it is state law error if submission is not required under Apprendi but is required under state law. (See Sengpadychith,
at pp. 321, 324–326 [trial court submitted criminal street gang
sentence enhancement to jury, but failed to explain all elements of
enhancement].)
The above
cases are distinguishable. Here, the
trial court did instruct on the
elements of the only firearm use enhancement that was submitted to the jury for
decision (the § 12022.53, subd. (d) enhancement), and Alvarez does
not claim that instruction was inaccurate. Neither the court’s instructions nor the
verdict form asked the jury to determine the applicability of the section
12022.53, subdivision (b) enhancement, and the jury rendered no verdict on
that enhancement. Accordingly, this is
not a case in which the jury found a sentence enhancement applicable without
adequate instructions as to its elements; instead, the enhancement at issue
just was not submitted to the jury at all.
Even assuming the trial court erred
by failing to ensure (in the absence of a request from either party) that the
section 12022.53, subdivision (b) enhancement was submitted to the jury,
Alvarez has shown no prejudice from that error.
the section 12022.53, subdivision (d) enhancement, found that Alvarez
personally and intentionally discharged a firearm causing great bodily
injury. If the jury had also considered
and found true the lesser allegation that Alvarez personally used a firearm
under section 12022.53, subdivision (b), the statute would have required
the trial court to impose “the enhancement that provides the longest term of
imprisonment[,]†i.e., the 25-years-to-life term specified in section 12022.53,
subdivision (d). (See
§ 12022.53, subd. (f).)
| Description | Eduardo Luis Alvarez was convicted by jury of second degree robbery (Pen. Code, § 211)[1] and false imprisonment by violence (§ 236). The jury found, as to the robbery count, that Alvarez personally and intentionally discharged a firearm, causing great bodily injury (§ 12022.53, subd. (d)), and, as to both counts of conviction, that he personally inflicted great bodily injury (§ 12022.7, subd. (a)). Alvarez argues that: (1) the trial court prejudicially erred by ruling that a former codefendant, whom Alvarez sought to call as a witness, could assert the Fifth Amendment privilege against self-incrimination; (2) his trial counsel provided ineffective assistance by introducing expert testimony about Alvarez’s character that opened the door to impeachment, and by failing to introduce exculpatory evidence; and (3) the trial court prejudicially erred by failing to instruct sua sponte on a less serious firearm enhancement (personal use of a firearm; § 12022.53, subd. (b)). We affirm the judgment.[2] |
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