Filed 8/30/17 P. v. Caro CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

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A jury convicted defendant Cesar Adolfo Caro of conspiracy to commit murder, count 1. The jury was unable to reach a verdict on count 2, attempted first degree murder, and the court declared a mistrial on count 2. Count 2 was later dismissed. The jury found a firearm enhancement not true. In bifurcated proceedings, the court sustained a strike prior for dissuading a witness.

Sentenced to state prison for an aggregate term of 50 years to life (25 years to life, doubled for the strike prior), defendant appeals. He contends the jury returned inconsistent verdicts, the verdicts indicated that the jury was confused in its deliberations, and the court erred in failing to grant a new trial on the ground of inconsistent verdicts and jury confusion. Defendant also contends defense counsel rendered ineffective assistance in recommending that defendant not accept a plea offer of six years. We reject defendant’s contentions and affirm the judgment.

FACTS

About 3:00 or 4:00 p.m. on June 27, 2012, defendant agreed to help Carlos Perez find Jaheem Barton and back Perez up in a fight. Alejandro Lara had been with Perez earlier and they had seen Barton but Barton was with his cousin, Jamal Coffer, his girlfriend, and a baby. Perez decided not to fight Barton at that time because of the baby.

Perez picked up defendant and they drove around looking for Barton. They saw Coffer and tried to follow him but he disappeared along a walking path. Perez, his cousins, Oscar and Efrain Villagomez, Lara, and defendant continued to drive around, looking for Barton. Lara was in his own car with Perez’s cousins as passengers. Perez was driving his car with defendant as his front seat passenger.

Perez and defendant found Barton with a group of people and Perez texted Lara. Perez decided he needed a weapon and drove to his house to get defendant’s handgun. Perez had defendant’s handgun at his house because he was planning to buy it from defendant. Defendant held the gun, loaded three bullets into the magazine and handed the gun to Perez. Perez planned to shoot Barton and told defendant he “wanted to make the problem end,” meaning he intended to kill Barton. Lara followed Perez’s car. Perez was going to shoot, claiming he was a “good shot.” Perez told defendant to roll his window down. Defendant said he would shoot because Barton and his group were on his side of the car. Perez handed the gun to defendant and drove forward. When defendant asked if Perez wanted him to shoot to scare or to hit someone, Perez told defendant to “do whatever.” Barton’s group started running toward the woods and defendant shot at the group as Perez drove by.

Lara, Oscar, and Efrain saw flashes from the passenger side of Perez’s car and from the wooded area. Oscar and Efrain claimed the first shot came from Perez’s car. Efrain did not know where defendant was sitting at the time of the shot. Lara did not know where the first shot originated. Perez and Lara drove their cars away from the scene. Defendant got in the car driven by Lara who took him home. Perez threw the gun in a dumpster.[1]

Earlier in the day, Coffer had called Austin Sharon and reported two or three men were harassing him, wanting to fight him. Sharon saw a car drive by the group a couple of times and park down the street. Grafton Dodge saw two cars parked at the end of the street. Coffer identified the men in the cars as the men who harassed him earlier in the day. Barton walked towards the two cars, threw up his hands, and said, “What.” The cars drove towards the group and accelerated as the group ran toward the wooded area. The passenger window of one car was rolled down and a 20-year-old Hispanic male sat in the front passenger seat. Sharon heard approximately five gunshots and ducked. Dodge looked back and saw sparks coming from the back window of the second car. Dodge described the driver of the first car as a heavyset Hispanic male.

Video footage from a nearby apartment complex showed the shooting. The first car drove down the road toward a group of people who were walking. The car slowed to a stop, and then gunshots were fired.

Perez was arrested the next day. He claimed he had been alone and did not stop because Barton was with a large group. Perez subsequently claimed that Barton had shot at him first. Perez had also claimed that defendant was armed when Perez first picked him up.

Sometime after the shooting, Oscar and Efrain were arrested and interviewed. In his interview, Oscar stated they went to Perez’s house after the shooting and both Perez and defendant said, “Oh, shit. I can’t believe we shot those [n------].”[2] Oscar also stated that he had seen defendant load bullets into the gun when they were parked.

Two weeks later, a detective found an expelled casing from a small semiautomatic handgun near the side of the road at the scene of the shooting. Nothing of forensic value was found.

Defendant obtained a new cell phone after the shooting and discarded his old cell phone. His new cell phone was seized when he was arrested. A search of defendant’s new cell phone reflected that a month after the shooting, defendant sent text messages to his girlfriend: “ ‘Did you see that car with the [n-----] came off [sic], the one driving was one of the black guys who was there when I shot at them.’ ” His girlfriend replied, “ ‘Really? Do you think they recognized you?’ ” Defendant responded, “ ‘IDK.[[3]] That’s why I told you I had to go inside. [F---] all that. Ha ha.’ ”

Defendant testified. Perez needed backup in a fistfight. Perez picked him up and they drove around looking for Barton and Coffer. Perez believed he had gone to prison because Barton had “snitched” on him. They saw Coffer near a church, got out, and looked for him. Defendant noticed a gun in Perez’s waistband. Defendant tried to persuade Perez not to use the gun but Perez ignored him.

Later, defendant and Perez met with Lara, Oscar and Efrain who were in a separate car. They drove around until they saw Barton with a group of people. Perez told defendant to shoot at the group. Defendant refused. Defendant climbed into the backseat. Perez shot at the group and sped off. Perez threatened to hurt defendant and his family if he told. They returned to Perez’s house and no one talked about the shooting.

Defendant denied owning the gun used in the shooting. He feared for his and his family’s safety when he initially lied to the detective and said he was home babysitting at the time of the shooting. He got rid of his old cell phone Perez had given him because he did not want to be tied to Perez. Defendant explained the texts to his girlfriend by saying Perez told him to take the blame. Defendant admitted a prior misdemeanor conviction for petty theft and a prior felony conviction for dissuading a witness.

DISCUSSION

I

Defendant contends the jury returned inconsistent verdicts, the verdicts indicated the jury was confused in its deliberations, and the court erred in failing to grant a new trial on the ground of inconsistent verdicts and jury confusion. We disagree.

Defendant notes the jury asked certain questions. The jury asked whether it had to agree on all four elements of conspiracy or whether it was enough if they agreed on just two of the four elements; (2) whether the instruction on conspiracy meant to say defendant or one of the coconspirators committed at least one of the overt acts alleged to “attempt to kill” (rather than “accomplish the killing” as instructed); (3) whether the jury could find defendant guilty of attempted murder through aiding and abetting but find the additional allegation of deliberation and premeditation not true; and (4) whether the instruction on attempted murder meant to refer to defendant as well as Perez (rather than just defendant) since the additional allegation of premeditation and deliberation referred to both defendant and Perez.

The court referred the jury to the instruction that stated “ ‘[t]he defendant or any of the alleged co-conspirators committed at least one of the following overt acts alleged to accomplish the killing.’ ” The court stated the instruction was very clear and would not give the jury additional direction. After consulting with counsel, the court reread the instruction on conspiracy to commit murder. The trial court later reread other instructions in response to other questions from the jury, including instructions on aiding and abetting, attempted murder, and deliberation and premeditation.

Defendant argues the jury’s questions reflect its confusion in deliberations, which led to the inconsistent verdicts, and it “either ignored the jury instructions or misunderstood them.” The jury was split 11-to-one, with 11 jurors believing defendant was not guilty of attempted murder. Had the jury followed the instructions, defendant argues, the jury had but two options: (1) find defendant guilty of conspiracy and guilty of attempted murder or (2) find defendant not guilty of attempted murder and not guilty of conspiracy. Defendant claims that having failed to find him guilty of attempted murder, the elements necessary for conspiracy were negated since counts 1 and 2 were linked together. By finding him guilty of conspiracy to commit first degree murder, defendant claims, the jury had to find the conspiracy was undertaken willfully, deliberately, and with premeditation. Defendant argues the jury was confused because the jury found he “had not acted willfully, deliberately, and with premeditation in his alleged role in the shooting at Jaheem Barton (by an 11-1 vote) while at the same time the jury found that [defendant] had acted willfully and deliberately in his role as a conspirator in allegedly planning this attempt to murder.” Defendant claims the jury was confused because it asked four questions. Finally, defendant claims the trial court erred in denying his motion for a new trial based on the ground the jury returned inconsistent verdicts, which indicated that they were confused.

The jury’s deadlock on attempted murder is not a verdict but instead a “nonevent that does not bar retrial.” (Yeager v. U.S. (2009) 557 U.S. 110, 118 [174 L.Ed.2d 78, 87].) “To ascribe meaning to a hung count would presume an ability to identify which factor was at play in the jury room. But that is not reasoned analysis; it is guesswork. Such conjecture about possible reasons for a jury’s failure to reach a decision should play no part in assessing the legal consequences of a unanimous verdict that the jurors did not return.” (Id. at pp. 121-122, fn. omitted.) “[T]he fact that a jury hangs is evidence of nothing—other than, of course, that it has failed to decide anything.” (Id. at p. 125.)

Further, even assuming the jury reached a verdict of an acquittal on attempted murder, an inherently inconsistent verdict is allowed to stand even if “factually irreconcilable with a conviction on another.” (People v. Santamaria (1994) 8 Cal.4th 903, 911.) A limited exception applies when the conspiracy count alleges overt acts identical to the crime charged in another count. (In re Johnston (1935) 3 Cal.2d 32, 33-34.) Johnston reversed a conspiracy conviction because the jury had acquitted the defendants on the remaining substantive counts, which meant none of the overt acts had been committed. (Id. at pp. 34-36.) Here, even assuming a verdict of acquittal on the attempted murder, Johnston would not compel reversal of the conspiracy count.

“ ‘A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act “by one or more of the parties to such agreement” in furtherance of the conspiracy.’ [Citations.]” (People v. Johnson (2013) 57 Cal.4th 250, 257.) “Criminal activity exists along a continuum. . . . ‘An attempt to commit a crime consists of . . . a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.’ [Citation.]” (Id. at pp. 257-258.) “Conspiracy law attaches culpability at an earlier point along the continuum than attempt. ‘Conspiracy is an inchoate offense, the essence of which is an agreement to commit an unlawful act.’ [Citations.] Conspiracy separately punishes not the completed crime, or even its attempt. The crime of conspiracy punishes the agreement itself and ‘does not require the commission of the substantive offense that is the object of the conspiracy.’ [Citation.]” (Id. at p. 258.) “Once one of the conspirators has performed an overt act in furtherance of the agreement, ‘the association becomes an active force, it is the agreement, not the overt act, which is punishable. Hence the overt act need not amount to a criminal attempt and it need not be criminal in itself.’ [Citations.]” (Id. at p. 259.)

To convict defendant of conspiracy to commit first degree murder, the jury had to find (1) defendant intended to agree and did agree with at least one coconspirator to kill Barton, (2) at the time of the agreement, defendant and at least one coconspirator intended that one or more of the conspirators would intentionally and unlawfully kill Barton, (3) defendant or any coconspirator committed at least one overt act in furtherance of the conspiracy, and (4) at least one overt act occurred in California.

The jury convicted defendant of conspiracy to commit murder, finding certain overt acts to be true: Defendant “1. [] did gather together with Carlos Perez, Alejandro Lara, Efrain Villagomez and Oscar Villagomez, to seek out and confront Jaheem Barton on June 27, 2012 in El Dorado County,” that defendant “2. [] did seek out and confront Jaheem Barton [on the same date and county],” and that defendant “5. [] did, while with Carlos Perez, try to locate Jamal Coffer at St. Theresa’s Church and again on the walking path near Jack-In-The-Box [on the same date and county].”[4]

To convict defendant of attempted murder, the jury had to find (1) defendant took at least one direct but ineffective step toward killing another person, meaning a step that goes beyond planning or preparation showing a definite and unambiguous intent to kill after preparations have been made, and (2) defendant intended to kill that person. The additional allegation that the attempted murder was done willfully, and with deliberation and premeditation, required the People to prove that defendant or Perez intended to kill when he acted, carefully weighed the consequences and decided to kill, and made the decision to kill before acting.

The elements of the two offenses were different. The jury could have found defendant guilty on one but not the other. The jury’s verdict of guilty on conspiracy to commit attempted murder is not inconsistent with a “nonevent,” i.e., the jury’s deadlock on attempted murder. For example, the jury could have found defendant conspired with Perez to kill Barton but defendant never took a step that went beyond planning, which showed an unambiguous intent to kill. Further, unlike the defendants in Johnston, defendant was not acquitted of the substantive offense.

In his new trial motion, defendant raised the same argument, that is, the jury returned inconsistent verdicts indicating the jury was confused. The prosecutor replied simply, a hung jury is not the same as a not guilty verdict, and the conspiracy to commit murder was completed before the crime of attempted murder began. The trial court denied defendant’s new trial motion.

Defendant relies upon In re Johnston, supra, 3 Cal.2d 32 in support of his argument that the jury’s inconsistent verdicts constitute grounds for a new trial. Having previously concluded that Johnston has no application here, we conclude the trial court did not err in denying defendant’s new trial motion.

II

Defendant contends defense counsel rendered ineffective assistance in advising him to reject two plea offers. The record refutes defendant’s claim.

On January 11, 2013, the prosecutor offered an eight-year prison deal, which he planned to withdraw later that day. Defense counsel said he met with defendant, advised him of the offer, and defendant desired to proceed to trial, even though he had seen the discovery, reflecting he could be charged with attempted murder and a 20-year gun enhancement, as well as a strike prior. Defense counsel said defendant wished to go forward to trial. When asked if that was correct, defendant responded, “Yes, sir.” The court advised defendant that the prosecutor was not required to make additional offers. Defense counsel stated it would be “an honor to represent” defendant, he (defense counsel) was “certainly not disappointed” defendant chose not to accept the offer, and he (defense counsel) would “go all the way” with defendant. Defendant thanked defense counsel and a preliminary hearing was set.

On March 26, 2013, the prosecutor said defendant made a counter offer of five years, which the prosecutor stated was too low. The prosecutor made two offers, one for a six-year prison term on the present case with credits waived and the other offer for six years on the present case and a consecutive eight-month term on another case with credits. The offers were open for two days to March 28, 2013, for defendant to consider.

At the preliminary hearing held on May 28, 2013, the prosecutor noted there had been “substantial negotiation” but there was currently no offer and there would be no offer after the preliminary hearing. Defense counsel stated he met with defendant, defendant did not want to settle, and defendant wanted to proceed to jury trial. When asked if that was correct, defendant responded, “Yes.” Defense counsel said he and defendant “talked it out forever” and they were “ready to go.”

To establish ineffective assistance of counsel, a defendant must show (1) counsel’s performance was below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)

“In determining whether a defendant, with effective assistance, would have accepted the offer, pertinent factors to be considered include: whether counsel actually and accurately communicated the offer to the defendant; the advice, if any, given by counsel; the disparity between the terms of the proposed plea bargain and the probable consequences of proceeding to trial, as viewed at the time of the offer; and whether the defendant indicated he or she was amenable to negotiating a plea bargain. In this context, a defendant’s self-serving statement—after trial, conviction, and sentence—that with competent advice he or she would have accepted a proffered plea bargain, is insufficient in and of itself to sustain the defendant’s burden of proof as to prejudice, and must be corroborated independently by objective evidence. A contrary holding would lead to an unchecked flow of easily fabricated claims.” (In re Alvernaz (1992) 2 Cal.4th 924, 938, italics omitted.)

Despite defendant’s claim otherwise, there is nothing in the record that reflects defense counsel “strongly recommended” to defendant that he reject the offers or that defense counsel gave poor advice. As defendant concedes, the record on appeal “does not and cannot fully support the [ineffective assistance of counsel] claim.” Defendant’s reliance upon the disparity in the offer and his ultimate sentence is not sufficient alone to show ineffective assistance of counsel.

Defendant’s reliance upon Lafler v. Cooper (2012) 566 U.S. 156 [182 L.Ed.2d 398] is misplaced. In Lafler, all parties conceded the defense attorney gave legally incorrect advice which constituted deficient performance and the only question was whether the defendant suffered prejudice as a result. (Id. at pp. 160-162, 174.) Nothing in the record here reflects either defense counsel advised defendant to reject the offers or provided poor advice. Even if, for example, defense counsel misjudged the strength of the district attorney’s case in advising defendant about an offer, such advice alone is not deficient performance. (In re Alvernaz, supra, 2 Cal.4th at p. 937.) Defendant’s ineffective assistance claim fails.

DISPOSITION

The judgment is affirmed.

NICHOLSON , J.

We concur:

BLEASE , Acting P. J.

HULL , J.