P. v. Smith
Filed 6/24/13 P. v. Smith CA2/3
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
COLEMAN KENYATTA SMITH,
Defendant and Appellant.
B240264
(Los Angeles
County
Super. Ct.
No. TA119283)
APPEAL
from a judgment of the Superior Court
of
County, Pat Connolly, Judge. Modified and, as so modified, affirmed.
Mark D.
Lenenberg, 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, Assistant Attorney General,
Steven D. Matthews and Roberta L. Davis, Deputy Attorneys General, for
Plaintiff and Respondent.
_________________________
Coleman Kenyatta Smith appeals the judgment entered
following his conviction by jury of first
degree murder in which he personally discharged a firearm causing
death. (Pen. Code, §§ 187, subd. (a),
12022.53, subd. (d).) The trial court
found Smith had a prior serious felony conviction within the meaning of Penal
Code section 667, subdivision (a) and sentenced him
to a term of 55 years to life in state prison.
Smith contends
the prosecutor engaged in prejudicial misconduct during argument and
assistance in failing to object. We
reject these contentions but modify the judgment to reflect imposition of a
five-year enhancement pursuant to Penal Code section 667, subdivision (a),
rather than section 667.5, subdivision (a).
As so modified, the judgment is affirmed.
BACKGROUND
1.
The
evidence adduced at trial.
On the evening
of July 25, 2011,
Duncan Tasevski drove fellow gang members Smith, Gary Sanders and another
individual to Smith’s home on East
87th Place in Los
Angeles. Tasevski had known Smith for a few years but
was best friends with Sanders. Smith had
a bag of clothes when he entered the car.
Upon arrival at Smith’s residence, Smith and Sanders exited the
car. Tasevski remained in the car
texting on his phone. He heard two
or three gunshots and saw muzzle flash, then saw Smith returning to the car
with a dark object in his hand. Smith
appeared “frantic†and “wired up.†In
fear for his life, Tasevski drove from the scene as Smith arrived at the car.
At the time of
the shooting, Smith’s mother, Annette Saxton, Smith’s
12-year-old daughter Keynia Smith, and Keynia’s mother Kalita Lucas, were in
Smith’s residence. They went outside and
saw Sanders slumped against a fence.
Saxton testified she has known Sanders “for a long time†and considered
him “like my son.†Sanders asked
for help, repeatedly said he was dying and told Saxton, “ ‘Your son shot
me.’ †While Sanders remained in the
front of the residence, Keynia and Lucas saw Smith come from the rear of the
building and enter the residence. Keynia
saw him leave shortly thereafter. The
.38-caliber revolver used in the shooting and a bag of clothing were found in a
trash can on the side of the building from which Smith emerged after the
shooting.
Keynia
testified she opened the door during the shooting. She did not see the shooter’s face but
described the shooter as light-skinned, tall, slender male with short, wavy
hair, which described Tasevski.
Sanders was
taken to California
Hospital
where he died of gunshot wounds.
Jose Ramirez
lives across the street from California
Hospital. In the early morning hours after the
shooting, Ramirez was awakened by screaming.
Ramirez looked outside and saw three men hitting, kicking and stomping
Smith while several others watched. The
men punched Smith more than 15 times, knocked him to the ground and stomped him
with their feet. They ceased the attack
and went to the entrance of the hospital but returned and “continued punching
him.†Smith was hospitalized as a result
of the attack but refused to discuss the assault with police officers.
Tasevski
testified he alone attacked Smith outside the hospital.
Two DNA samples
were obtained from the weapon used in the shooting. One sample was too small to render a
profile. The other sample was matched to
Smith’s fellow gang member, Darrell Jones.
Jones testified at trial he was not involved in the shooting but he may
have handled the gun as guns frequently are passed among gang members. Jones has a tattoo dedicated to Sanders’s
memory and, after Sanders died, Jones stopped associating with Smith.
Phone records
indicated that at 3:06 p.m.
on the day of the shooting, Smith sent a text message to his brother
stating: “Time to kill some cheese
toast,†a derogatory term for a member of Smith’s gang.
2.
prosecutor’s argument, as relevant to Smith’s claim.
The prosecutor
argued the jury reasonably could infer Smith’s fellow gang members beat him
because Tasevski told them Smith had killed Sanders. The prosecutor asserted: “And we could logically understand why, as
[Tasevski had] just witnessed his best friend being shot by the defendant. [¶]
And it was obvious that the gang was mad at [Smith] for shooting
[Sanders], and they were getting their own street justice . . . .â€
Regarding Jones, the prosecutor noted he “has a memorial, a
tattoo for [Sanders]. And we asked him,
‘Well, do you still associate with the defendant?’ And he said no, obvious. [¶] We
can logically infer that [Tasevski] told the gang that the defendant was the
person responsible for shooting [Sanders].â€
Toward the end
of rebuttal argument, the prosecutor asserted that, based on the nature of the
attack, the jury reasonably could infer the attackers blamed Smith for
Sanders’s death. The prosecutor
concluded by stating Smith “ends up getting brutally beaten and left in the
street outside the hospital†where Sanders died.
Defense counsel
did not object to any of these remarks.
DISCUSSION
1.
Smith
fails to demonstrate prosecutorial misconduct.
a.
Smith’s
arguments.
Smith contends
the prosecutor urged an improper inference premised on facts not in
evidence. He claims that because the
identity of the attackers, other than Tasevski, was unknown, there was no
evidence as to their state of mind with respect to Smith’s culpability for
Sander’s death. Thus, the prosecutor
“fictionalize[d] evidence†and committed misconduct in arguing Smith’s fellow
gang members believed Smith killed Sanders.
The argument also violated the rule prohibiting opinion evidence on the
issue of guilt. (People v. Torres (1995) 33 Cal.App.4th 37, 46-47.)
Smith further
claims defense counsel rendered ineffective assistance in failing to object to
the misconduct. He argues there was no
reasonable explanation for the failure to object, the evidence was not
overwhelming, the defense credibly blamed Tasevski for the shooting and the
prosecutor’s egregious misconduct warrants retrial.
b.
Resolution.
A prosecutor is given wide latitude
during argument. (People
v. Hill (1998) 17 Cal.4th 800, 819, overruled
on another ground in Price v. Superior Court (2001) 25 Cal.4th
1046, 1069, fn. 13.) Argument may be vigorous as long as it amounts
to fair comment on the evidence, which can include
reasonable inferences or deductions drawn
from the evidence.
(Ibid.)
Here, the prosecutor’s
argument was based on inferences drawn from the evidence. Tasevski knew Smith was with Sanders at the
time of the shooting and Smith returned to Tasevski’s car immediately after the
shooting holding a dark object and looking frantic. As a result of these observations, Tasevski
drove from the scene in fear for his life.
Later that night, a group of males beat Smith in the parking lot of the
hospital where Sanders died. Tasevski
admitted beating Smith just hours after the shooting. Ramirez, an unbiased eyewitness, testified
several people participated in the beating.
The obvious
inference to be drawn from this evidence is that Tasevski told the assailants
what he had seen and the group beat Smith in retaliation for the shooting of
Sanders. Thus, the prosecutor’s argument
that Tasevski told other gang members what he had witnessed was a reasonable
inference drawn from the evidence. The
prosecutor did not commit misconduct in drawing this inference from the
evidence.
Smith complains
the prosecutor impermissibly relied on the assailants’ belief Smith shot
Sanders in urging the jury to find Smith was the shooter. Smith claims this argument amounted to
inadmissible opinion evidence on the issue of Smith’s guilt. This argument fails because the
prosecutor’s “street justice†argument, in which the prosecutor asserted Smith
was beaten because he shot Sanders, was based on the evidence presented at trial
and was a permissible inference from the evidence. Thus, the prosecutor properly could argue
Tasevski identified Smith as the shooter to other gang members and their
conduct thereafter constituted circumstantial evidence of Smith’s guilt.
Because it is not misconduct “to ask
the jury to
believe the prosecution’s
version of
events as drawn
from the evidence,â€
the prosecutor’s argument was proper. (People
v. Huggins (2006) 38 Cal.4th 175, 207.) Thus, there were no grounds on which counsel
could have objected and any objection would have been overruled. (People v.
Cole (2004) 33 Cal.4th 1158, 1202, fn.
11.)
In any event, because it is not reasonably probable Smith
would have achieved a more favorable result absent the argument, Smith is
unable to demonstrate ineffective
assistance of counsel. (Strickland
v. Washington (1984) 466 U.S. 668, 687 [80
L.Ed.2d 674].) The evidence of Smith’s
guilt included Sanders’s dying declaration identifying Smith as the shooter and
Smith’s text message to his brother indicating his intent to kill a member
of the gang. Also, Tasevski testified he
drove from the scene in fear for his life after the shooting when he saw Smith
approaching frantically with a dark object in his hand. Additionally, the murder weapon was found in
the trash on the side of the building from which Smith emerged immediately
after the shooting. The presence of
Jones’s DNA on the gun used in the shooting was explained by Jones’s testimony
that guns are passed among gang members.
In sum, given the evidence of Smith’s guilt and the obvious
interpretation of the evidence urged by the prosecutor, Smith cannot show
prosecutorial misconduct or deficient performance in defense counsel’s failure
to object. Even without the prosecutor’s
argument, the jury reasonably would have inferred the beating of Smith
corroborated Tasevski’s account of the murder.
Thus, the claim of prosecutorial misconduct, as well as the assertion defense
counsel rendered ineffective assistance, fail.
2.
The
abstract of judgment must be corrected.
The People
correctly note the abstract of judgment must be modified to reflect the
imposition of a five-year enhancement pursuant to Penal Code section 667,
subdivision (a), rather than section 667.5, subdivision (a). We shall order the requested
modification. (See People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The judgment is modified to reflect
imposition of a five-year enhancement pursuant to Penal Code section 667,
subdivision (a), rather than section 667.5, subdivision (a). As so modified the judgment is affirmed. The clerk of the superior court shall prepare
and forward an amended abstract of judgment to the
KLEIN,
P. J.
We concur:
CROSKEY,
J.
KITCHING,
J.
