P. v.
Filed 9/13/13 P. v. Flores
CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
EFREN FLORES,
Defendant and Appellant.
B241530
(Los Angeles
County
Super. Ct.
No. NA086309)
APPEAL from
a judgment of the Superior Court of the County
of Los
Angeles, Arthur Jean, Jr., Judge. Affirmed.
Edward H.
Schulman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Stephanie A. Miyoshi and
Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
>
INTRODUCTION
A jury
found defendant and appellant Efren Flores (defendant) guilty of first degree
murder and two counts of attempted murder. On appeal, defendant contends that there was
insufficient evidence to support the guilty verdicts, his trial counsel
provided ineffective assistance of counsel by failing to object to certain
hearsay statements of a former codefendant, and the trial court erred by
failing to instruct the jury sua sponte on accomplice liability. Defendant also challenges his sentence under
the gun-use enhancement on the grounds that it violates California’s
multiple conviction rule and principles of double
jeopardy.
We hold
that there was substantial evidence in
support of the jury verdicts, the claimed ineffective assistance of counsel was
not prejudicial, and the claimed instructional errors were not
prejudicial. We further hold that
defendant’s challenges to his sentence under the gun-use enhancement are
without merit. We therefore affirm the
judgment of conviction.
FACTUAL BACKGROUND
A. Prosecution’s
Case
On the
morning of September 14, 2009, Carlos Garcia
former codefendant Jesus Gonzales’s
name="_ftnref2" title="">[2] Westside Longo gang—walked
to a liquor store at the corner of 20th Street and Pacific Avenue in Long Beach
to buy cigars. After he left the liquor
store, Garcia had a confrontation with African American and Hispanic members of
the 18th Street gang. As he crossed the street from the liquor store
parking lot, a van pulled up and the two Hispanic males sitting in the front
“started throwing up 18†gang signs.
Side Longo†gang signs.
Garcia continued walking, but several African American and Hispanic gang
members exited the van and began walking toward Garcia. In response, Garcia made a motion, as if he
was carrying and about to produce a gun, and then kept walking home.
On the
evening of September 14, 2009,
at around 10:30 p.m., James Gaither,
an African American, was sitting on the stairs outside his apartment complex
with his African American friends David and Robert Tripplet.
Robert was located at the middle of the stairs, and David was at the bottom. As Gaither and David were text messaging and
Robert was listening to his Ipod, two Hispanic males walked up to the group. Gaither did not notice the two men until one
of them starting talking. He heard the
words “where you from†and suspected that there was going to be trouble. David responded, “we don’t’ bang. We aren’t from nowhere,†trying to calm the situation. The same Hispanic male then said, “Fuck
Crabs, fuck Crabs, where you from. Fuck
Crabs. Where you from.â€
certain that “something was about to happen†and he “froze.â€
The male
Hispanic who had done all the talking, and who Gaither identified at trial as
defendant, seemed intoxicated, but the other Hispanic male did not. The other male Hispanic “grabbed†defendant, as
if the two were about to leave. Just as
the other male Hispanic was pulling defendant away, defendant produced a gun
from his pocket, pointed at David, and began shooting. Gaither heard gun fire and saw David, who had
been standing, fall to the ground.
Gaither
turned and tried to “get in the house,†but before he could open the door, he
was shot in the hand as he reached for the door knob.
Robert, Gaither saw defendant and the other Hispanic male running away. Then he saw Robert “sliding down the stairs,
bumping his head as he was going down.†Gaither
grabbed Robert, turned him over, and started shaking him. Robert’s eyes were closed and he was “snoring
like he was asleep.†Gaither kept
shaking Robert and “screaming his name trying to wake him up.†David stood up and told Gaither he was going
into the house to “get a towel to put on his wounds.†Gaither noticed that David had been shot in
the face and “somewhere else,†but he was not focused on David because he knew
David was “alive and talking.â€
David
testified that on September 14, 2009,
at around 10:00 or 10:30 p.m., he had just returned to his
apartment from the store with his brother Robert and his friend Gaither. He was standing at the bottom of the apartment
building’s stairs, Robert was sitting in the middle of the stairs, and Gaither
was sitting at the top of the stairs. According
to David, “[t]wo [Hispanic] guys walked up and started banging on [David,
Robert, and Gaither] asking [them] where [they] were from.†David replied, “No. We don’t bang.†The male Hispanic who asked where the men
were from responded by saying, “Fuck Crabs†two times.
The male
Hispanic who had been speaking, and who David identified at trial as defendant,
then pulled out a gun and pointed it at David’s face from three or four feet
away. David put up his hands, but defendant
“started shooting.†David felt pain in
his face, turned, was shot again in the back, and fell to the ground.
David
continued to hear gun shots, as many as four or five. When he stood up, he saw Robert lying on the
stairs. Robert was not moving, so David
went to him to determine if he was breathing.
After David determined that Robert was still breathing, he went into the
house to retrieve a towel and when he came out, the police had arrived. An ambulance took David to the hospital where
he stayed for a week to receive treatment and care for bullet wounds to the
face, shoulder, and back. At the time of
trial, David was still experiencing back pain from his wounds.
Robert was
transported to the hospital where he died.
The deputy medical examiner who performed the autopsy on Robert found a
single, fatal gunshot entry wound beneath the right eye. The bullet passed through the brain and was
recovered from inside the skull cavity.
According
to subpoenaed telephone records, defendant called Garcia at approximately 10:55
p.m. the night of the shootings. Garcia,
who lived near the scene of the shooting, said defendant asked him if he had
heard any gunshots. When Garcia replied in the negative,
defendant asked him if there were police outside. Garcia went outside his apartment and
confirmed to defendant that there were police near the intersection of 20th
Street and Cedar Avenue. Defendant then
told Garcia that he had “laid down some Crabs,†which Garcia understood to mean
defendant had shot some Crips gang members.
Garcia responded “all right then, whatever†and terminated the call.
The next
day Garcia walked to defendant’s house and spoke to him about the shootings the
night before. Defendant told Garcia that
he and Gonzales had been at a bar watching a Raiders game on the night of the
shootings. The two men, who were drunk,
walked from the bar down 20th Street where they saw some Crips gang
members. Defendant and Gonzales
pretended to be more drunk than they were, “acting like they couldn’t walk that
good.â€
As
defendant and Gonzales approached the three Crips gang members, one of the
three walked down the stairs, and defendant began to argue with him. According to Garcia, “Grouchy hit [the three
black Crips gang members] up. And then
one of the Crips said he ‘didn’t bang,’ but he said, ‘Cuz’ at the end. When he said that, that’s when Grouchy just
started shooting at them.†After the
shooting, defendant and Gonzales ran away.
City of
Long Beach Police Detective Todd Johnson was one of the officers assigned to investigate
the shootings of Robert, David, and Gaither.
He arrived at the scene of the shootings after midnight. Officers at the scene had already recovered
two bullet fragments.
During the
course of his initial investigation, Detective Johnson developed information
suggesting that Robert may have been involved in an altercation earlier on the
day of the shooting. That information,
in turn, caused Detective Johnson to investigate Garcia. A Crip’s gang member informed the detective
that a Hispanic male with a “W†on his hat had been involved in an incident at
a liquor store on the corner of 20th Street and Pacific Avenue. A video surveillance tape from the store
showed Garcia, as well as a group of men who “‘banged’†on Garcia. When Detective Johnson attempted to contact
Garcia, he learned that Garcia had been arrested on a probation violation. During a search of Garcia’s residence, the
detective recovered a hat with a “W†on it.
Detective
Johnson next assembled photographs of eight different Hispanic males, one of
which was a photograph of Garcia. The
detective showed the photographs to David and Gaither, but neither of them
identified Garcia as being involved in the shootings.
Because
Detective Johnson suspected that Garcia knew something about the shootings, he
went to his residence and brought him back to the police station for
questioning. Garcia initially denied any
involvement in the shootings, but after further questioning, he admitted that
“Drowsy†had called him and told him that “Little Chucky†from the West Side
Longo gang did the shooting with “Chuyito’s†older brother.
Detective
Johnson knew Drowsy’s telephone number and reviewed records for it, but did not
find any telephone calls from Drowsy to Garcia during the relevant time
frame. As a result, he interviewed
Garcia a second time. During that second
interview, Garcia told the detective that “Clover†did the shooting. When Detective Johnson investigated Clover,
he learned that he was Don Gonzales, the brother of Gonzales and a West Side
Longo gang member. But when he attempted
to locate Clover, the detective discovered that he had been incarcerated for
immigration related reasons.
Based on
the information he obtained on Clover, Detective Johnson and his partner,
Detective William Mutsubara, interviewed Garcia a third time, and the latter
portion of that interview was tape recorded.
During the recorded portion of the interview, which was played for the
jury, Garcia provided, inter alia, the “real story.†Garcia admitted that the first version of the
shootings that he told the detectives was not true, and then he explained to
the detectives that he learned about the shootings from defendant in a
telephone conversation the night of the shootings. Defendant telephoned Garcia and asked if
there were police outside Garcia’s apartment.
Garcia went outside and informed defendant that he saw the police. In response, defendant said “Yeah, I just laid
down some crabs . . . .â€
The next
day Garcia went to defendant’s house and defendant provided details of the
shootings. According to defendant, he
and Gonzales left a bar after watching a Raiders game and as they were walking
and acting like they were drunk, they saw “three crabs right there where
[Garcia] live[d] . . . .†One of the men
came down the stairs toward defendant who told the men “where he was
from.†When the man said, “Oh, we don’t
bang cuz†defendant “stepped back and he said fuck crabs and he started
shooting at them and . . . both Chuyito and Grouchy started running away.â€
Garcia informed
the detectives that he also spoke to Gonzales after the shootings. Gonzales’s version of the shootings was
substantially similar to the version defendant had given Garcia. According to Gonzales, he and defendant were
coming back from watching a Raiders game, walking near Garcia’s residence. Gonzales and defendant were acting as if they
were drunk, holding on to one another. The two men “went up to the three black guys
that live[d] right there upstairs . . . .â€
Defendant “hit them up†and told them “where he was from . . . .†One of the African American males responded
“oh we don’t bang cuz†and then defendant “stepped back and . . . just started
shooting at them and . . . [Gonzales and defendant] started running.â€
In addition
to recounting his conversations with defendant and Gonzales about the shootings,
Garcia told the detectives about the incident at the liquor store that occurred
earlier on the day of the shootings. That morning, Garcia went to Eddie’s liquor
store on 20th Street and Pacific Avenue to buy some cigars. As he was walking home, a burgundy van pulled
into the parking lot of the liquor store and a male in the front passenger seat
“[threw] up 18,†causing Garcia to “throw up Longo at
him . . . .†Some
Mexican males and two African American males emerged from the van and began
walking toward Garcia. In response,
Garcia “grabbed [his] little pocket knife from [his] key chain and then [he]
acted [as] if [he] had a gun or something.â€
Following
the detectives’ third interview with Garcia, they asked him to make “pretextâ€
phone calls to defendant in an effort to obtain an admission to some type of
involvement in the shootings. The calls
were made over a two-day period in April 2010. In July 2010, Detective Johnson interviewed
defendant’s girlfriend, Marisa Gallegos, who informed him that defendant had
“concerns about the security of his phone . . . .†Using a wire tap on defendant’s telephone, the
detectives heard several phone conversations between Gonzales and
defendant. They determined that after
Garcia would make pretext calls to defendant, Gonzales would receive calls from
defendant.
Using their
drivers license pictures, Detective Johnson created “flyers†with sketched
faces of Gonzales and defendant. Police
officers walked around neighborhoods passing out the flyers and speaking with
residents. They targeted neighborhoods
around the scene of the shootings. They
also passed the flyers out in the territory of the Westside Longo gang. In addition, they posted the flyers on every
front door of defendant’s apartment complex, including defendant’s front
door. The flyers stimulated “phone
traffic†between Gonzales and defendant.
Detective
Johnson learned from defendant’s girlfriend, Gallegos, that after the flyers
were passed out, defendant and Gallegos switched telephones. One text message from Gallegos’s telephone
that the detectives intercepted read, “Crab killa gang ain’t no other way for
this longerothang, woopty, woop, woop, weeesst brackkking blood.â€
City of
Long Beach Police Detective Sean Magee, who was assigned to the gang investigations
unit as a gang detective, testified as the prosecution’s gang expert. He was familiar with the Westside Longo gang
which had a gang injunction issued against its members. The Westside Longo gang had approximately 300
members of which approximately 100 members were active. The gang claimed the area of Long Beach west
of the Los Angeles riverbed. The scene
of the shootings in this case was located in a disputed territory claimed by
several gangs other than the Westside Longo gang. The Westside Longo gang utilized Oakland
Raider football team colors—silver and black. They also had distinctive hand signs.
The primary
activities of the Westside Longo gang were murders, attempted murders,
manslaughters, assaults with deadly weapons, robberies, and illegal
distribution of narcotics, particularly methamphetamine. Garland White and Eric Benites were Westside
Longo gang members. White was convicted
of manslaughter in 2005 and Benites was convicted of assault with a deadly
weapon in 2008.
Detective Magee
knew that defendant was a Westside Longo gang member based on his tattoo and
gang graffiti recovered from his room, including graffiti that stated,
“Grouchy, Longo Beach Crab killing gang.â€
Defendant’s nickname was Grouchy.
The term “Crab†was a disrespectful reference to a member of a Crips
gang. The Crips in Long Beach were
predominately African American or Asian.
Detective
Magee also knew that Gonzales was a Westside Longo gang member based on Gonzales’s
admissions of gang membership, his tattoos, conversations with Detective
Johnson, and surveillance of Gonzales during the investigation of the shootings
in this case. His nickname was Chuyito.
Detective
Magee was familiar with the facts of this case.
Based on a hypothetical question premised on facts that closely mirrored
the facts of this case, he opined that the shootings in the hypothetical case
were committed for the benefit of, at the direction of, and in association with
a criminal street gang and were committed with the intent to promote, further,
and assist gang members in their criminal activities. He based his opinion on several factors. The shooter’s use of the phrase “Where are
you from†was a challenge to enemies and the term “Fuck Crabs†was consistent
with the Westside Longo gang because they were “notoriously racist.†Also, the shootings appeared to be part of a
plan which was carried out by two Westside Longo gang members who “witnessed
[each] other†so they could “brag about [the shootings] to others†and verify
that the shootings did occur. The
shootings heightened the perpetrators reputation as killers and would “strike
fear†in any potential witnesses. When
gang members were able to instill fear in a community, it made it easier for
gang members to “run a neighborhood†and commit crimes, such as illegal
narcotics sales. By instilling such fear
in a community, the gang members had a greater ability to control the streets
they claimed for their gang.
Case
The defense
called as a witness an expert on eyewitness identifications. The expert testified about various issues
associated with eyewitness identifications, including reliability. According to the expert “sometimes [eyewitnesses]
get it right and sometimes they get it wrong.â€
PROCEDURAL BACKGROUND
In an
information, the Los Angeles County District Attorney charged defendant in
count 1 with the murder of Robert in violation of Penal Code section 187,
subdivision (a)
title="">[8];
in count 2 with the attempted murder of David in violation of sections 664 and
187, subdivision (a); and in count 3 with the attempted murder of Gaither in
violation of sections 664 and 187, subdivision (a). The District Attorney alleged that all three
counts were committed for the benefit of, at the direction of, and in
association with a criminal street gang with the specific intent to promote,
further, and assist criminal conduct by gang members within the meaning of
section 186.22, subdivision (b)(1)(C). The
District Attorney also alleged as to all three counts that defendant personally
used a firearm, personally discharged a firearm, and personally discharged a
firearm causing great bodily injury or death within the meaning of section
12022.53, subdivisions (b), (c) and (d). In addition, the District Attorney alleged
that a principal personally discharged a firearm causing great bodily injury or
death within the meaning of section 12022.53, subdivisions (d) and (e)(1).
Following
trial, the jury found defendant guilty on all three counts and, as to all three
counts, found true the allegations that defendant personally discharged a
firearm causing great bodily injury or death within the meaning of section
12022.53, subdivision (d); a principal personally discharged a firearm causing
great bodily injury or death within the meaning of section 12022.53,
subdivisions (d) and (e)(1); and defendant committed the charged crimes for the
benefit of, at the direction of, and/or in association with a criminal street
gang with the specific intent to promote, further, and assist in criminal
conduct by gang members within the meaning of section 186.22, subdivision
(b)(1)(C). The trial court sentenced
defendant to an aggregate sentence of 130 years to life comprised of a term of
25 years to life on count 1, plus an additional consecutive 25 years to life
term pursuant to section 12022.53, subdivision (d), for a total sentence of 50
years to life on count 1; an additional consecutive term of 15 years to life on
count 2, plus an additional consecutive term of 25 years to life pursuant to
section 12022.53, subdivision (d), for a total sentence on count 2 of 40 years
to life; and an additional consecutive term of 15 years to life on count 3,
plus an additional consecutive 25 years to life term pursuant to section
12022.53, subdivision (d), for a total sentence on count 3 of 40 years to life.
DISCUSSION
A. Substantial
Evidence
of Review
Defendant’s challenge to the
sufficiency of the evidence in support of the jury’s guilty verdicts on the
first degree murder of Robert and the attempted murders of David and Gaither is
governed by the substantial evidence standard of review. “In assessing . . . a claim [of insufficient
evidence], we review the 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.’ (People v. Johnson (1980) 26 Cal.3d
557, 578 [162 Cal.Rptr. 431, 606 P.2d 738].)
‘The federal standard of review is to the same effect: Under principles of federal due process,
review for sufficiency of evidence entails not the determination whether the
reviewing court itself believes the evidence at trial establishes guilt beyond
a reasonable doubt, but, instead, whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)’ (People v. Rodriguez (1999) 20 Cal.4th
1, 11 [82 Cal.Rptr.2d 413, 971 P.2d 618] (Rodriguez).) [¶]
Moreover, as observed in Rodriguez: ‘The standard of review is the same in cases
in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792 [42 Cal.Rptr.2d 543,
897 P.2d 481].) “‘Although it is the
duty of the jury to acquit a defendant if it finds that circumstantial evidence
is susceptible of two interpretations, one of which suggests guilt and the
other innocence [citations], it is the jury, not the appellate court[,] which
must be convinced of the defendant’s guilt beyond a reasonable doubt. “‘If the circumstances reasonably justify
the trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does
not warrant a reversal of the judgment.’â€
[Citations.]’†[Citation.]’ (Rodriguez, supra, 20 Cal.4th at p.
11, italics added; see generally People v. Clark (2011) 52 Cal.4th 856,
942-943 [131 Cal.Rptr.3d 225, 261 P.3d 243] (Clark), and cases
cited.)†(People v. Watkins (2012) 55 Cal.4th 999, 1019-1020.)
Defendant
contends that there was insufficient evidence to support a finding that he was
present during the shooting, much less a finding that he was the shooter. According to defendant, the eyewitness
identifications of defendant as the shooter made by David and Gaither were
unreliable, as were Garcia’s preliminary hearing testimony and recorded
statements about his conversations with defendant and Gonzales.
Both David
and Gaither, who were victims of the shootings, unequivocally identified
defendant as the shooter in open court.
The jury heard their testimony and observed their demeanor, and was
therefore entitled to give it credence.
David was standing within three to four feet of the shooter and Gaither
was at the top of the stairs looking down at the shooter at the bottom of the
stairs. Given the proximity of both men
to the shooter as he spoke prior to firing his handgun, they had ample
opportunity to observe the shooter, a fact on which the jury was entitled to
rely in evaluating the veracity and reliability of the witnesses’
identifications. Under the substantial
evidence standard discussed above, the identification testimony of either David
or Gaither, by itself, was sufficient to support the jury’s findings that
defendant was present during the shootings and that he was the shooter. Therefore, because there was not one, but two
eyewitness identifications, substantial evidence supported the verdicts.
In addition
to the eyewitness identifications, the jury heard Garcia’s preliminary hearing
testimony which was made under oath and subject to cross-examination. The jury also heard the recorded statement
that Garcia gave to the detectives that substantially corroborated his
preliminary hearing testimony. Based on
that evidence, the jury was presented with admissions by defendant and Gonzales
that defendant was the shooter. Although
any one of those admissions, by itself, would have been sufficient to support
the jury’s verdicts, when they each are considered together with the eyewitness
identifications, they clearly supported a reasonable inference that defendant
was the shooter.
Assistance of Counsel Based on Trial Counsel’s Failure to Object to Certain of
Gonzales’s Out-of-Court Statements to Garcia
1. Background
Prior to trial,
the prosecution filed a motion to introduce at trial certain out-of-
court statements made by defendant and Gonzales. According to the motion, the night of the
shooting, defendant called Garcia and admitted he was the shooter. The next day, defendant made more detailed
statements to Garcia concerning his involvement in the shootings. The prosecution’s motion also stated that on
the evening the flyers with sketches of defendant and Gonzales were posted,
Gonzales told his girlfriend that he and defendant did the shooting. In support of the motion, the prosecutor argued
that both defendant’s statements to Garcia and Gonzales’s statements to
Hernandez were admissible as nontestimonial admissions against penal interest.
At the
hearing on the motion, the trial court and the prosecutor had the following
exchange: “The Court: So you intend to call [Gonzales’s girlfriend]
Maria Hernandez. And she is going to
testify that Mr. Gonzales said that [defendant] was part of this murder? [¶]
[Prosecutor]: Correct. [¶]
The Court: And that’s
hearsay. [¶] [Prosecutor]:
Under Cervantes and
argue-- [¶] The Court:
But this isn’t contravention of Crawford. It is one thing for Hernandez to say Gonzales
[said] that he did it. That’s a
declaration against [Gonzales’s] penal interest. But the declaration that [defendant] did it
too is not a declaration against [Gonzales’s] penal interest. It is a separate issue. [¶]
[Prosecutor]: [The] People would
argue under Greenberger and
the person that not only makes the statement and you find that he is not
exposing his co-defendant in a situation like that, to exposure, saying that I
was there, he is the one that shot, it is inherently reliable. And it should be allowed. [¶]
The Court: But the statement that
[defendant] did it is not a declaration against [Gonzales’s] penal
interest. [¶] [Prosecutor]:
It exposes him to the same amount of culpability as it does defendant
Gonzales. [¶] The Court:
But it is not a declaration against penal interest. Gonzales saying I was there and [defendant]
was too and we both did it, the part that he was there and he did it, is a
declaration against [his] penal interest.
But that [defendant] did it is not a declaration against [Gonzales’s] penal
interest. And Gonzales isn’t here to be
cross-examined. So I don’t think it
comes in. [¶] [Prosecutor]:
That’s fine. [The] People submit
on that.â€
Although
there was discussion at the hearing about Gonzales’s statement to Hernandez
implicating defendant as the shooter, there was no discussion of Gonzales’s
similar statement to Garcia implicating defendant as the shooter, which
statement was contained in the tape-recorded interview of Garcia. At trial, the prosecution did not call
Hernandez, presumably because of the trial court’s ruling set forth above. But without any objection from the defense, the
tape recording of Garcia’s interview with the detectives was played for the
jury, including Garcia’s statement that Gonzales told him defendant was the
shooter.
Defendant concedes that he
forfeited on appeal his claim that the trial court erroneously admitted Gonzales’s
statements to Garcia implicating defendant as the shooter by failing to object
to the relevant portion of Garcia’s tape recorded interview with the
detectives. Nevertheless, defendant
argues that he received ineffective assistance of counsel based on his trial
counsel’s failure to object.
“‘To establish a violation of the
constitutional right to effective assistance of counsel, a defendant must show
both that his counsel’s performance was deficient when measured against the
standard of a reasonably competent
attorney and that counsel’s deficient performance resulted in prejudice to defendant in the sense
that it “so undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result.â€â€™ (People v. Kipp (1998) 18 Cal.4th 349,
366 [75 Cal.Rptr.2d 716, 956 P.2d 1169], quoting Strickland v. Washington [(1984)] 466 U.S. [668,] 686.) Preliminarily, we note that rarely will an
appellate record establish ineffective
assistance of counsel. (People v.
Mendoza Tello (1997) 15 Cal.4th 264, 267-268 [62 Cal.Rptr.2d 437, 933 P.2d
1134].)†(People v. Thompson (2010) 49 Cal.4th 79, 122.) “We have repeatedly stressed ‘that “[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.’ (People v. Wilson (1992) 3 Cal.4th
926, 936 [13 Cal.Rptr.2d 259, 838 P.2d 1212] quoting People v. Pope
(1979) 23 Cal.3d 412, 426 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th
1].) A claim of ineffectiv
a habeas corpus proceeding. (People
v. Wilson, supra, at p. 936; People v. Pope, supra, at
p. 426.)†(People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)
3. Analysis
Assuming,
without deciding, that defendant’s trial counsel provided ineffective
assistance of counsel by failing to object to the relevant portion of the tape
recorded interview of Garcia, any such error was harmless. As discussed above, in addition to Gonzales’s
statement to Garcia implicating defendant as the shooter, the two surviving
shooting victims identified defendant at trial as the man who shot them. And defendant himself admitted to Garcia in
two separate conversations that he was the shooter. Garcia testified at the preliminary hearing
and was subject to cross-examination by defendant’s counsel. Thus, notwithstanding defendant’s contentions
as to Garcia’s reliability, the additional statement by Gonzales implicating
defendant as the shooter was, at best, cumulative corroborating evidence. Therefore, trial counsel’s failure to object
to that statement cannot be said to have so undermined the proper functioning
of the adversarial process that the trial cannot be relied on as having
produced a just result. (See
p. 122.) To the contrary, given all of
the other substantial evidence in support of the finding that defendant was the
shooter, it was not reasonably probable that defendant would have obtained a different
result at trial if Gonzales’s statement to Garcia had been excluded. (People
v. Watson (1956) 46 Cal.2d 818, 836.)
Similarly, given the nature and quality of the other evidence showing
that defendant was the shooter, a reasonable juror could have found defendant
guilty of the charged crimes beyond a reasonable doubt. (Chapman
v. California (1967) 386 U.S. 18, 24.)
C. Jury
Instructions
Defendant
contends that the trial court failed to fulfill its sua sponte duty to give appropriate
jury instructions on accomplice liability under section 1111 concerning
Gonzales’s statements to Garcia implicating defendant as the shooter. But, as defendant concedes, the California
Supreme Court has held that a trial court’s failure to instruct on accomplice
liability is harmless error if there is sufficient corroborating evidence. (See
People v. Lewis (2001) 26 Cal.4th 334, 370.)
Here, as
defendant also concedes, there was sufficient corroborating evidence concerning
Gonzales’s statements to Garcia implicating defendant as the shooter, including
defendant’s own admissions against interest that he was the shooter. Notwithstanding the holding in
defendant urges us to reconsider the issue and hold that the claimed instructional
error was prejudicial. Because we are
bound by the holding in that Supreme Court case (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455),
we must follow it and conclude that the claimed failure to instruct on
accomplice liability was harmless.
D. Multiple Conviction Rule
and Double Jeopardy Principles
Defendant contends that the
imposition of a section 12022.53, subdivision (d) firearms enhancement on a
defendant convicted of murder violates the multiple conviction rule set forth
in People v. Ortega (1998) 19 Cal.4th
686, 692-694 and People v. Pearson (1986)
42 Cal.3d 351, 355-360, as well as federal constitutional principles of double
jeopardy. According to defendant, the
factual element essential to establishing the section 12022.53, subdivision (d)
enhancement—discharge of a firearm causing death—is necessarily subsumed within
the elemental components of murder—proximately causing the death of the victim.
Defendant concedes, as he must,
that two California Supreme Court decisions have rejected his contention under
California’s multiple conviction rule. (
115-125 and People v. Izaguirre (2007)
42 Cal.4th 126, 130-134.) Because we are
bound by those decisions under Auto
Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at page 455, we
reject defendant’s contention that his punishment violated California’s
multiple conviction rule.
Defendant also concedes that,
historically, federal double jeopardy has not applied to multiple punishment within
a unitary trial, but contends that recent United States Supreme Court decisions
“suggest†that it now should. Again,
because there is California Supreme Court and United States Supreme Court
authority holding that multiple criminal punishments that arise out of a
unitary criminal proceeding do not implicate federal double jeopardy
principles, People v. Sloan, supra, 42
Cal.4th at page 121, Hudson v. United
States (1997) 522 U.S. 93, 99, we are bound to follow that authority and
reject defendant’s double jeopardy contention.
DISPOSITION
The
judgment of conviction is confirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
MOSK,
J.
We concur:
TURNER,
P. J.
KUMAR,
J.
name="_ftn1" title="">[1] Because
the trial court found that Garcia was unavailable to testify, the prosecution
introduced his preliminary hearing testimony at trial.
name="_ftn2" title="">[2] Garcia
knew defendant by the nickname “Grouchy†and Gonzales by the nickname “Chuyitoâ€
or “Little Chewy.†Gonzales was charged
in the same information as defendant, but his case was severed prior to trial.
