P. v. Flores
Filed 1/21/14 P. v. Flores CA2/8
OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
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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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
JUSTIN TYLER FLORES,
Defendant and Appellant.
B241025
(Los
Angeles County
Super. Ct. No.
KA095203)
APPEAL
from a judgment of the Superior Court of
Los Angeles County. George Genesta,
Judge. Affirmed as modified.
Susan
Wolk, 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, James William Bilderback II, and Marc A. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________________
A jury convicted Justin Tyler Flores of one count of shooting at an
occupied motor vehicle, and found true an allegation that he personally and
intentionally discharged a handgun, causing great bodily
evidence supported a jury finding that he was the shooter; (2) the prosecutor
engaged in numerous instances of prejudicial misconduct; (3) the trial court
abused its discretion by permitting supplemental argument on reasonable doubt
in response to a jury request; (4) the trial court erred in failing to sua
sponte instruct the jury on how to use evidence of uncharged offenses; (5) the
court erred in failing to sua
sponte instruct the jury on the lesser included offense of grossly
negligent discharge of a firearm; (6) the trial court deprived him of a fair
trial by limiting the defense to two character witnesses; (7) he was denied
effective assistance of counsel; (8) the trial court committed multiple
sentencing errors; (9) the sentence imposed constituted
the clerk’s transcript contains an error and must be amended to properly
reflect a parole revocation fine. We
modify the judgment to reflect a parole revocation fine and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Evidence
One
evening in August 2011, Luis Orellana was riding home from work with his sister
and two cousins. His sister, Adriana
Orellana, was driving.
name="_ftnref1" title="">[1] Luis sat in the front
passenger seat. His two cousins, John
Iraheta and Mariela M., sat in the back seat. Luis and his cousins noticed an SUV driving
next to them was behaving unusually. The
SUV pulled next to them, slowed, and dropped back and forth in traffic. Iraheta and Mariela saw two men in the
SUV. Mariela thought the men were trying
to flirt with Adriana. The driver’s side
window of the SUV was rolled down. The
driver’s arm was resting on the open window. He wore a white T-shirt and a blue and gray
Dodgers baseball cap. Iraheta saw a
tattoo on the driver’s forearm. The
driver was looking in the Orellanas’ car. Iraheta and Mariela saw the driver point
a gun and shoot into the Orellanas’ car. Luis was hit in the head. Soon after the shooting, Iraheta identified Flores as the shooter from a
photographic six-pack lineup. Mariela
was unable to identify the driver from a six-pack, but she identified Flores as the driver at a
preliminary hearing. Adriana identified Flores as the driver from a
six-pack lineup soon after the incident, but admitted at trial that she did not
see anyone in the act of shooting.
Flores drove away from the
scene after the shooting. In the
process, he crashed into a parked car and eventually abandoned the SUV. In the execution of a search warrant, police
found two gun cleaning kits and a gun case in Flores’s bedroom, and the hat
he was wearing during the incident. Gunshot
residue was identified on the hat.
Luis
survived the shooting but lost hearing in his right ear. His ear was ripped apart. Doctors reconstructed his face, leaving in
plates and bullet fragments. He has a
weight on his eyelid because the nerves are damaged such that he cannot close
the eyelid or lift his eyebrow. Vision
in his right eye is blurry. At the time
of trial, he could not fully open his jaw.
He faced more surgeries to repair damage to his head, eyebrow, and jaw.
Evidence
Flores testified to the
following. On the evening of the incident,
Flores
was driving his SUV with a friend, Jose Mendez, in the passenger seat. Flores and Mendez saw a “cute girl†in a
nearby car. Flores pulled next to her car, tried
to get her attention, and began flirting. Because of traffic, Flores fell behind the
Orellanas’ car a few times, then drove to catch up. As Flores and Mendez were trying to get Adriana’s
attention, Mendez said a guy in the car was “dogging†them. Flores asked Mendez what he was talking about, indicating he did not see
anyone looking at them that way and Mendez was “tripping.†The next thing Flores knew, Mendez was leaning
over Flores with his left arm out of the window. Flores was scared. He heard a
gunshot. He asked Mendez why he had shot
at the other car. Flores did not know Mendez had
a gun in the car with them. Flores knew Mendez owned a gun,
but did not know Mendez ever carried it with him. Flores panicked. He sped away and
hit two parked cars. He stopped the car,
then began calling people to ask for a ride. Flores and Mendez went to Mendez’s house. At Mendez’s brother’s suggestion, Flores called 911 to report his
SUV stolen. He made a second similar report
the next day. He lied because he was
scared. Flores had not seen Mendez
since the day of the shooting. He did
not know of Mendez’s whereabouts.
Flores had a tattoo only on his
left upper arm, not on his forearm. Two
witnesses testified they had known Flores for years and knew him to be peaceable and nonviolent.
The
People charged Flores with attempted first degree murder (Pen. Code, §§ 187, subd. (a),
664) and shooting at an occupied motor vehicle (§ 246). The jury acquitted Flores of attempted murder, but
found him guilty of shooting at an occupied motor vehicle. The jury also found true the allegation that Flores personally and
intentionally discharged a firearm, causing great bodily injury, within the
meaning of section 12022.53, subdivision (d). The trial court sentenced Flores to the high term of
seven years on the shooting at an occupied motor vehicle count, and imposed a
consecutive 25-years-to-life term for the intentional discharge of a firearm
resulting in great bodily injury enhancement, for a total prison term of 32
years to life.
DISCUSSION
I. Substantial
Evidence Supported the Conviction
Flores contends there was
insufficient evidence to support the conviction. He argues there was no credible or solid
evidence identifying him as the shooter.
We disagree.
“ ‘In assessing the
sufficiency of the evidence, we review the entire record in the light most
favorable to the judgment to determine whether it discloses evidence that is
reasonable, credible, and of solid value such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless
it appears “that upon no hypothesis whatever is there sufficient substantial
evidence to support [the conviction].†[Citation.]’
[Citation.]†(People
v. Wilson (2010)
186 Cal.App.4th 789, 805.) We presume in
support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence. (
1263.)
Flores admitted he was driving
the SUV during the incident. Thus the
only question is the sufficiency of the evidence establishing he was the
shooter. Both Iraheta and Mariela
identified Flores as the shooter. Iraheta
testified Flores was wearing a T-shirt during the incident. He saw Flores’s arm, with tattoos. Iraheta
testified he saw tattoos on Flores’s forearm, instead of the upper arm where the tattoos were actually
located. This inconsistency did not
render his testimony entirely unbelievable or inconsequential. Iraheta and Mariela both saw Flores at close range and saw
him holding the gun pointed at their car.
The testimony of a single witness may be sufficient to support a
conviction. Iraheta’s and Mariela’s
testimony was not physically impossible or inherently improbable. (People
v. Jones (2013) 57 Cal.4th 899, 963-964.) Their testimony provided a sufficient basis for
the jury to conclude Flores was the shooter.
II. Prosecutorial
Misconduct
Flores argues he did not
receive a fair trial due to multiple instances of prejudicial prosecutorial
misconduct. However he concedes he did
not object on the basis of prosecutorial misconduct in the trial court. It is well established that prosecutorial
misconduct must be objected to in the trial court to create a basis for relief
on appeal. (People v. Fuiava (2012) 53 Cal.4th 622, 679-680 (
counsel was ineffective for failing to object.
This is the lens through which we primarily consider Flores’s prosecutorial
misconduct arguments. Reversal is not
warranted.
To establish
entitlement to relief based upon a claim of ineffective assistance
of counsel, the burden is on the
defendant to show “(1) trial counsel failed to act in the manner to be expected
of reasonably competent attorneys acting as diligent advocates and (2) it is
reasonably probable that a more favorable determination would have resulted in
the absence of counsel’s failings.†(People
v. Lewis (1990) 50 Cal.3d 262, 288; Strickland v. Washington (1984)
466 U.S. 668 (Strickland).) A defendant establishes a reasonable
probability of a more favorable determination when he persuades a reviewing
court that the result of his trial was fundamentally unfair or unreliable. (Strickland, at p. 694.)
“
‘Under California law, a prosecutor
commits
methodsâ€
the
conduct
rights—
is
violation
unless
supra, 53 Cal.4th at p. 679.)
A. Alleged
Misconduct Regarding Flores’s False Statements to Law Enforcement, His False
Statements to His Attorneys, and His Failure to Reveal His Exculpatory Version
of Events Until Trial
i.
Background
During
Flores’s
testimony on his own behalf, his counsel asked if he “stuck to†his story
about the SUV being stolen. Flores said he persisted in
repeating this false story because he was scared and he was afraid to admit he
lied. On cross-examination, the
prosecutor asked Flores about his false statements to law enforcement. Flores admitted he waived his Miranda
to talk to a detective. He admitted
he lied to the detective, twice in calls to 911, and the day he was arrested.
The
prosecutor also asked about Flores’s failure to reveal his exculpatory version
of events at a later date:
“[Prosecutor]: Did you ever – ever, until today –tell any
judge—there was a D.A. on the case before me; is that right?
“[Flores]: Yes.
“Q: He was in the courtroom a little while ago;
right?
“A: Yes.
“Q: He did your preliminary hearing?
“A: Yes
“Q: You appeared in front of a bunch of judges;
right?
“A: Correct.
“Q: You never told any judge, never told any
prosecutor, never told any law enforcement officer, detective, anybody this
story until about an hour ago; isn’t that true?
“A: True.â€
On
redirect, Flores’s counsel returned to the topic:
“Q: Who did you finally tell the truth about this
matter to?
“A: You.
“Q: Thank you.
When did that happen?
“A: The second time you came to see me.
“Q: That was quite a few months ago; correct?
“A: Correct.
“Q: At first, you even told me that your car had
been stolen; isn’t that true?
“A: True.
“Q: What made you change your mind? What made you tell me a different story?
“A: I was tired of covering up for somebody.
“Q: And during the time – before you met me, you
had another attorney; right?
“A: Right.
“Q: That attorney told you – advised you not to
talk to police officers or district attorneys; correct?
“A: Correct.
“Q: I also advised you not to talk to police
officers or district attorneys; correct?
“A: Yes.
“Q: While you were in custody and while you were
represented, you were advised not to talk to people; isn’t that true?
“A: True.â€
On
re-cross, the prosecutor asked: “Whatever
attorney represented you before, you lied to that attorney; right?†Flores admitted he lied to his first attorney. The prosecutor elicited further testimony that
Flores did not tell his trial version of events to the investigating officer or
other law enforcement officers he encountered before he ever saw an attorney in
court.
In his closing
arguments, the prosecutor argued Flores had made multiple prior inconsistent statements: “It was clear he was lying based on all the
evidence you had, but he admitted, yeah, I lied. Started out with not telling his mom the
whole truth, lying to 911. Again, going
on and on and on, all the way through his attorneys, even lying to them. Prior inconsistent statements.†In his rebuttal argument, the prosecutor again
argued Flores lied to 911, the officer taking his report, the investigating
officer, his mother, and to both of his attorneys.
ii. Prosecution
questioning on Flores’s false statements to law enforcement
Flores asserts the prosecutor improperly commented on Flores’s decision to remain
silent, thereby violating his right against self-incrimination. Under Doyle
v. Ohio (1976) 426 U.S. 610 (Doyle),
a defendant’s silence at the time of arrest, and after receiving
impeach the defendant at trial without violating his or her Fourteenth
Amendment right to due process. (
does not apply when a defendant presents exculpatory testimony at trial
inconsistent with a voluntary post-Miranda
statement.†(People v. Collins (2010) 49 Cal.4th 175, 203 (Collins).) Here, Flores waived his right to
silence and repeatedly told law enforcement a false story about his SUV being
stolen. The prosecutor could not properly
question him about the inconsistencies in these statements and his trial
testimony. (Id. at pp. 203-205.) This
was not Doyle-based misconduct. Defense counsel was not ineffective for failing
to object.
iii. Prosecutor questioning on Flores’s false
statements to his attorneys,
exculpatory version to judges, prosecutors, etc.
Flores contends the prosecutor engaged in misconduct in asking Flores whether he lied to his
attorneys because the questions violated the attorney-client privilege, and
defense counsel should have objected. However,
Flores
waived the privilege by testifying on the topic on direct examination, at least
with respect to Flores’s communications with his second attorney. Defense counsel elicited testimony that the
first time Flores told his exculpatory version of events was when he told counsel,
and testimony that he lied to counsel before he admitted his involvement in the
crime. Having introduced this line of
inquiry in his own defense, Flores could not then argue the prosecutor was forbidden from examining
him on the same issues. (
prosecutor did not engage in misconduct by asking follow up questions about Flores’s false statements to
his second attorney when he had already answered similar questions posed by his
own counsel.
However,
Flores’s
counsel did not directly ask him about his communications with his first
attorney, thereby raising some question whether Flores waived the
attorney-client privilege as to those communications. The propriety of the prosecutor’s questions
regarding Flores’s failure to tell the prosecutors or judge his exculpatory version
of events is also questionable, since Flores was presumably represented by counsel at any point at which he
could have spoken to a prosecutor or judge.
(See Collins,
[prosecution questions on voluntary post-Miranda
statements to law enforcement posed no Doyle
error, but portions of cross-examination directed at defendant’s failure to
notify prosecutor or police of alibi after charges were filed and counsel was
appointed were “potentially more problematicâ€].)
not decide whether the prosecutor’s questioning constituted misconduct, or
whether counsel was ineffective for failing to object. Assuming defense counsel should have objected
to prosecutor questions touching on attorney-client privileged communications between
Flores and his first attorney, or on Flores’s failure to tell
his exculpatory version of the incident to a prosecutor or judge, we conclude
it is not reasonably probable a more favorable determination would have
resulted absent counsel’s failings. Even
if the court sustained the objections and prevented the jury from hearing any evidence
about Flores’s statements, or lack of statements, to anyone after the right to
counsel had attached, the jury still would have heard the extremely damaging
evidence that Flores called in two false reports to 911.
The jury would also have learned that rather than remaining silent after
hearing a Miranda advisement, Flores voluntarily
repeated the false stolen SUV story to law enforcement.
permissibly ask about Flores’s false statements to law enforcement, Flores
essentially contends the jury should have only heard that he told a false story
to law enforcement, and nothing more about when, before trial, if at all, he
first revealed the version of events related in his trial testimony. We do not find it reasonably probable that
had the evidence stopped at that point, the jury would have been any more
likely to find Flores’s exculpatory trial testimony credible. The record does not establish that the result
of the trial was fundamentally unfair or unreliable. We find no basis for reversal due to
ineffective assistance of counsel in the failure to object to the challenged
prosecution questioning.
B. Closing Argument
Flores contends many of the prosecutor’s statements during closing
argument constituted prosecutorial misconduct.
These contentions are forfeited as discussed above. (People
v. Sapp (2003) 31 Cal.4th 240, 310.)
But we also reject his related claim of ineffective assistance of
counsel because we conclude there was no prosecutorial misconduct warranting a
defense objection.
“ ‘To prevail on a claim of
prosecutorial misconduct based on remarks to the jury, the defendant must show
a reasonable likelihood the jury understood or applied the complained-of
comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we “do not lightly
infer†that the jury drew the most damaging rather than the least damaging
meaning from the prosecutor’s statements.’
[Citation.]†(
771-772 (Dykes).) As discussed in detail below, Flores has not met his
burden to show a reasonable likelihood the jury understood the prosecutor’s
comments in an improper manner.
i. Suggesting Fernando Mendez
was available as a defense witness
and pointing out the lack of evidence to corroborate
Flores asserts the prosecutor engaged in misconduct by suggesting Mendez’s
brother, Fernando Mendez, could have been called as a defense witness, and
implying Flores had the duty to produce him.
Flores argues the prosecutor’s comments introduced facts outside the
evidence and lessened the People’s burden of proof. We disagree.
In his closing argument, the
prosecutor contended Flores offered no evidence to corroborate his version of events. The prosecutor argued the defense knew
Fernando Mendez lived down the street from Flores, and Flores could have brought
him in as a witness.
inferences the jury could draw from the evidence. Flores testified the
Mendez family lived, and continued to live, on the same street as Flores’s family. The defense cross-examination of an
investigating police officer elicited testimony that the police interviewed
Fernando Mendez in the course of their investigation. Flores also testified
that Fernando Mendez was at the Mendez house immediately after the shooting,
although there was no specific evidence as to whether Fernando Mendez resided
or continued to reside in the house. We
disagree that this discrepancy suggested the prosecutor was referencing
evidence from outside the record, or making statements based on his personal
knowledge about Fernando Mendez’s availability as a witness. We do not find it reasonably likely the jury
interpreted the prosecutor’s argument in that manner.
We also disagree that the
prosecutor acted improperly in arguing no evidence was offered to corroborate Flores’s testimony. The People may properly comment on a
defendant’s failure to call logical defense witnesses. (People
v. Thomas (2012) 54 Cal.4th 908, 945 [no misconduct for prosecutor to argue
no witnesses came forward to provide alibi evidence for defendant];
565-566 [no misconduct for prosecutor to argue defendant did not present any
evidence suggesting anyone else committed the crime]; People v. Carter (2005) 36 Cal.4th 1215, 1266-1267 [no misconduct
for prosecutor to argue nothing prevented defendant from offering witnesses to
explain why defendant was in the car with property linking him to victims].) The prosecutor’s comments permissibly noted
the defense failure to offer logical material evidence, and did not suggest the
defense had the burden of proof instead of the People. (People
v. Lewis (2009) 46 Cal.4th 1255, 1304.)
Moreover, the court properly
instructed the jury that neither side was required to call all witnesses who
might have information, or to produce all physical evidence that might be
relevant. The court also instructed the
jury that the lawyer’s statements were not evidence. We presume the jury followed the court’s
instructions. (People v. Friend (2009) 47 Cal.4th 1, 33 (Friend); People v. Gray
(2005) 37 Cal.4th 168, 217.) Thus, we
find no prejudicial prosecutorial misconduct.
Similarly, even if the
prosecutor’s comments were improper, we would not find ineffective assistance
of counsel for failure to object. “Reviewing
courts defer to counsel’s reasonable tactical decisions in examining a claim
of ineffective assistance of counsel [citation], and there is a ‘strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.’ [Citation.] Defendant’s burden is difficult to carry on
direct appeal, as we have observed: ‘ “Reviewing courts will reverse
convictions [on direct appeal] on the ground of inadequate counsel only if the
record on appeal affirmatively discloses that counsel had no rational tactical
purpose for [his or her] act or omission.†’
[Citation.]†(
436-437.)
Here, defense counsel may reasonably
have concluded it was better to allow the prosecutor’s comments to pass rather
than objecting and drawing more attention to the fact that Fernando Mendez was
not offered as a defense witness. We cannot
conclude there was no rational tactical basis for not objecting to these
portions of the prosecutor’s closing argument.
(People v. Vines (2011) 51
Cal.4th 830, 876; People v. Lopez
(2008) 42 Cal.4th 960, 972 (Lopez).)
ii. Expressions of “personal opinionâ€
as to Flores’s guilt
Flores asserts several prosecutor statements constituted misconduct
because they expressed the prosecutor’s personal opinion of Flores’s guilt, such as: “The defendant did it. Why? I
don’t know. He wouldn’t tell us on the
stand. . . . Shame on him for not
manning up and taking responsibilityâ€; statements that Flores was lying whereas
the People’s case was “based on the truthâ€; and the prosecutor’s assertion that
the character witness’s testimony was of limited value because, in general,
people do not want to believe someone they know could commit a crime, noting “
crime, I’d say the same thing.†We
find no misconduct.
In People v. Bain (1971) 5 Cal.3d 839, 848, the court held a
prosecutor may not “express a personal opinion or belief in a defendant’s
guilt, where there is substantial danger that jurors will interpret this as
being based on information at the prosecutor’s command, other than evidence
adduced at trial.†There was no such
danger here. Although the prosecutor
asserted Flores was lying, he did not suggest this was based on evidence beyond
what was presented to the jury. The
prosecutor’s statements were based on Flores’s admission that
he made false statements to the police, the evidence against him, and the
implausibility of Flores’s version of events. (
suggest the defendant has fabricated a defense when there is evidence to
support the suggestion. (
1081-1082.) We also disagree that the
prosecutor’s comments regarding character witnesses improperly denigrated those
witnesses. Instead, the prosecutor
permissibly argued, based on common knowledge, about the weight the jury should
afford the witnesses’ testimony.
existence of Mendez
Flores now challenges the prosecutor’s statements asserting Flores offered no
evidence of Jose Mendez’s existence, except his own testimony.
prosecutor misstated the facts because there was evidence of a second person in
the SUV, and evidence that law enforcement interviewed Fernando Mendez. Flores further contends
his testimony that Mendez was the SUV passenger, and that Fernando Mendez is
Mendez’s brother, was unrebutted.
However, this evidence did not render the prosecutor’s argument a
misstatement of facts, or a reference to facts not in evidence. It was accurate for the prosecutor to
state that, aside from Flores’s testimony, there
was no evidence offered about Jose Mendez.
It is not reasonably likely the
jury understood these comments in an improper manner. The point was that Flores was not credible,
and his testimony was uncorroborated by logical material evidence. This was a proper comment on the evidence.
iv. Denigration of defense
counsel
Flores asserts the prosecutor “impliedly denigrated†defense counsel by
insinuating Flores’s story changed only after meeting with trial counsel. The prosecutor did not make any explicit
statements to this effect, and we are hard pressed to find even a suggestion of
this in the record. Our review of the
record indicates the prosecutor argued Flores lied for a long
time, only changing his story late in the game.
We will not infer the jury would have drawn a damaging implication about
defense counsel from the prosecutor’s statements. (Dykes,
supra, 46 Cal.4th at pp. 769, 771-772; Lewis,
supra, 46 Cal.4th at p. 1305.)
Flores challenges the prosecutor’s statements that Flores’s behavior was
cold and cowardly, and that Flores was trying to get
the jury to believe lies, as appealing to the passions and prejudices of the
jury. The record does not support this contention. The prosecutor’s comments were well
within the bounds of permissible
argument. (Friend, supra, 47 Cal.4th at p. 84; People v. Stanley (2006) 39 Cal.4th 913, 951-953.)
In
light of the discussion above, we reject Flores’s contention that reversal is required because the cumulative
effect of prosecutorial misconduct deprived him of a fair trial. (Fuiava,
supra, 53 Cal.4th at p. 625.)
C. No
Prejudicial Error in Prosecutor’s Explanation of Reasonable Doubt
or Trial Court Abuse of Discretion in Allowing
Supplemental Argument
Flores contends the trial court
erred in allowing supplemental argument on reasonable doubt, and that the
prosecutor engaged in misconduct by incorrectly explaining the meaning of
“abiding conviction.†We find no
prejudicial error.
Background
In the original
charge to the jury, the trial court gave CALCRIM No. 220, which provides in
relevant part: “Proof beyond a reasonable doubt is proof that
leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible
doubt because everything in life is open to some possible or imaginary doubt.†In his closing argument, the prosecutor
stated: “The key phrase in [the reasonable
doubt] instruction is abiding conviction.
The proof must leave you with an abiding conviction that the charge is
true. Abiding, meaning lasting. Conviction means belief. It’s a lasting belief that the charge is
true.†While deliberating, the jury sent
out a note requesting that “the judge give further guidance as to what ‘abiding
conviction’ and ‘reasonable doubt’ mean.â€
After
conferring with the parties, the court indicated the best solution would be to
give counsel five minutes each to argue further what reasonable doubt meant in
the context of the case. Neither side
objected. The court reread CALCRIM No.
220. Then each side presented
supplemental argument. Defense counsel
contrasted reasonable doubt with the preponderance of the evidence and clear
and convincing evidence standards. The
prosecutor argued that “abiding conviction†had no special meaning. He argued “lasting†was another word for
“abiding,†and “conviction†meant “belief.†He then repeated that the question for the
jury was whether the evidence left the jurors with a “lasting belief.â€
ii. The
prosecutor’s definition of “abiding conviction†was not misconduct
On appeal, Flores contends the prosecutor
should have defined “abiding conviction†with words such as “evidentiary
certainty†or referencing “near certitude of the guilt.†He asserts “lasting†was too vague and
subjective. We find no
reasonable likelihood the jury understood
the prosecutor’s comments in an improper or erroneous manner.
Using
“lasting belief†to explain the term “abiding conviction,†is not
incorrect. Indeed, several courts have
used the word “lasting†in describing “abiding conviction.†In People
v. Zepeda (2008) 167 Cal.App.4th 25, 30-31, the court rejected a
defendant’s argument that the trial court was required to reference a
subjective state of certitude when explaining reasonable doubt. The Zepeda
court explained: “The phrase ‘abiding
conviction,’ even without being described as ‘felt,’ adequately conveys the
subjective state of certitude required by the standard of proof. The modifier ‘abiding’ informs the juror his
conviction of guilt must be more than a strong and convincing belief. Use of the term ‘abiding’ tells the juror his
conviction must be of a ‘lasting, permanent nature,’ and it informs him ‘as to
how
his conviction must be held.’ (People v. Brigham (1979) 25
Cal.3d 283, 290–291, italics added.) [¶] The term ‘abiding conviction’ in the
reasonable doubt instruction ‘convey[s] the requirement that the jurors’ belief
in the truth of the charge must be both long lasting and deeply felt.’
[Citation.]†(
original.)
Similarly,
in People v. Pierce (2009) 172
Cal.App.4th 567, the court rejected a claim of prosecutorial misconduct based
on the prosecutor’s statements to the jury in which she disputed defense
counsel’s explanation of an abiding conviction as one that is lasting. The Pierce
court explained: “The United States
Supreme Court and the California Supreme Court, respectively, have described ‘an
abiding conviction’ as one that is ‘settled and fixed’ [citation] and one that
is ‘lasting [and] permanent’ [citation] . . . . [¶] The
prosecutor’s challenged statements concerning ‘an abiding conviction’ were not
only brief, but they evoked a certain ‘permanen[ce]’ in that each juror’s
conviction that the charge was true had to be ‘permanent’ in that, considering
the law and the facts presented, that conviction would ‘abide,’ that is, would
not change, through the end of the trial when the jury rendered its verdict in
open court. . . . Thus, there is no reasonable likelihood that
the prosecutor’s brief remarks led the jury to think that ‘an abiding conviction’
of the truth of the charge was something less than the self-evident nature of
‘abiding’ as ‘settled and fixed’ and ‘lasting [and] permanent.’ The record does not establish a reversible
error.†(Id. at pp. 573-574.)
Here,
the prosecutor did not misstate the law by describing an “abiding convictionâ€
as a “lasting belief.†Not only was this
consistent with relevant case law, it did not improperly lessen the People’s
burden of proof. We find no error.
argument
In addition, we conclude
the court properly allowed supplemental argument in response to the jury’s
request for additional instruction on reasonable doubt. Flores did not object below and has forfeited the issue. (People
v. Turner (2004) 34 Cal.4th 406, 437.) But even had he preserved the argument we
would find no error. As Flores acknowledges, California
Rules of Court rule 2.1036 authorizes trial courts to allow attorneys to make
additional closing arguments if a jury reaches an impasse. In People
v. Ardoin (2011) 196 Cal.App.4th 102, 129, footnote 10, the court noted it
had “no difficulty in concluding that the same rule applies when a jury
expresses confusion and an impasse in its deliberations related to the
governing law and instructions, particularly in light of the trial court’s
broad discretion to alter the sequence of trial proceedings.†We agree with this reasoning. We find no abuse of discretion in the court’s
procedure.
We similarly
cannot find defense counsel was ineffective for failing to object, or in
failing to request additional time to prepare.
There was nothing improper in the court’s decision to allow supplemental
argument, and, on the record before us, there is no reason to believe defense
counsel needed more time to prepare argument on this fundamental concept that
both sides had already discussed in their earlier arguments. Flores is not entitled to relief due to ineffective assistance of counsel
on this issue. (People v. Young (2007) 156 Cal.App.4th 1165, 1171-1172.)
Trial Court Did Not Err in Failing to Sua Sponte Instruct the Jury On Evidence
of Uncharged Offenses
Flores contends the trial court should have sua sponte instructed the jury
it could only consider evidence of uncharged offenses for a limited purpose
(CALCRIM No. 375).
name="_ftnref7" title="">[7] The argument concerns
evidence that during the incident, Flores committed two “hit and runs†and filed false police reports. However, the legal authorities Flores relies upon to support
his contention establish the argument has no merit. For example, in People v. Collie (1981) 30 Cal.3d 43, our high court explained:
“Evidence of past offenses may not improperly affect the jury’s
deliberations if the facts are equivocal, the charged offense is dissimilar, or
the evidence is obviously used to effect one or more of the many legitimate
purposes for which it can be introduced. (See Evid. Code, § 1101, subd. (b); [citation].) Neither precedent nor policy favors a rule
that would saddle the trial court with the duty either to interrupt the
testimony sua sponte to admonish the jury whenever a witness implicates
the defendant in another offense, or to review the entire record at trial’s end
in search of such testimony. There may
be an occasional extraordinary case in which unprotested evidence of past
offenses is a dominant part of the evidence against the accused, and is both
highly prejudicial and minimally relevant to any legitimate purpose. In such a setting, the evidence might be so
obviously important to the case that sua sponte instruction would be
needed to protect the defendant from his counsel’s inadvertence. But we hold that in this case, and in general,
the trial court is under no duty to instruct sua sponte on the limited
admissibility of evidence of past criminal conduct.†(Id.
at p. 64.)
This
was not an extraordinary case. The prosecution
evidence regarding Flores’s “hit and run†activity was offered as a description of how law
enforcement determined he was involved in the shooting. The evidence of his filing false police
reports was offered to show Flores’s consciousness of guilt and his attempts to cover up his
involvement in the shooting. These were
not similar “past offenses†offered to suggest Flores had a propensity to
engage in criminal conduct. Instead, the
evidence was highly relevant to the central issue and offered for the
legitimate purpose of demonstrating his knowledge, identity, and absence of
mistake. (Evid. Code, § 1101, subd.
(b).) There was little danger the jury
would consider the evidence for the improper purpose of showing a general
criminal disposition. (
1225-1226.) The trial court did not have
an obligation to sua sponte instruct on the limited admissibility of the hit
and run or false report evidence.
We
also reject the argument that defense counsel was ineffective for failing to
request such an instruction. Even if the
instruction had been given, it is not reasonably probable a result more
favorable to Flores would have resulted, “since the likelihood of the jury’s
using the evidence for an improper purpose was so minimal under the facts of
this case that any conceivable error was harmless.†(Bunyard,
supra, 45 Cal.3d at p. 1226.) Moreover,
defense counsel could reasonably have concluded that even if such an
instruction was appropriate, it would have the negative effect of highlighting
the fact that Flores engaged in additional criminal activity in connection with the
shooting. As things stood, the hit and
runs and false police reports were characterized only as part of the story of
the shooting, not separate crimes.
Defense counsel could rationally determine this was more beneficial to
his client than the potential utility of CALCRIM No. 375. (People
v. Hernandez (2004) 33 Cal.4th 1040, 1052-1053.)
the Jury on the Lesser Included Offense of Grossly Negligent Discharge of a
Firearm
We reject
Flores’s
contention that the trial court erred in failing to sua sponte instruct on the
lesser included offense of grossly negligent discharge of a firearm (Pen. Code,
§ 246.3).
“It
is error for a trial court not to instruct on a lesser included offense when the evidence raises a
question whether all of the elements of the charged offense were present, and
the question is substantial enough to merit consideration by the jury. [Citation.]
When there is no evidence the offense committed was less than that
charged, the trial court is not required to instruct on the lesser included offense. . . . [¶] On appeal, we review independently whether
the trial court erred in failing to instruct on a lesser included offense. [Citation.]â€
(People v. Booker (2011) 51
Cal.4th 141, 181.)
To convict Flores of shooting at an
occupied motor vehicle, the People were required to prove Flores willfully and
maliciously shot a firearm, and he shot the firearm at an occupied motor
vehicle. (See CALCRIM No. 965; see also Pen.
Code, § 246.) To secure a
conviction for grossly negligent shooting of a firearm, the People would have
been required to prove Flores intentionally shot a firearm; he did so with gross negligence; and
the shooting could have resulted in the injury or death of a person.
less than a willful and malicious shooting at an occupied motor vehicle. The prosecution evidence established that Flores deliberately pointed a
gun at the Orellana car and fired. Flores contended he was not the
shooter. There was no evidence that,
although Flores was the shooter, his behavior was only grossly negligent, rather
than willful and malicious. Nor is there
evidence that Flores shot the gun anywhere other than directly at an occupied motor
vehicle. (See Ramirez, at p. 990.) Neither
the eyewitness evidence, nor Flores’s testimony, supported such a theory.
We reject Flores’s contention that his
lack of a criminal record or the absence of a confession was sufficient to
warrant instruction on the lesser offense.
While these factors may have cast doubt on Flores’s guilt generally, they
did not provide an evidentiary basis for the jury to conclude he was guilty
only of a grossly negligent shooting. Lesser
included offense instructions are “required only where there is ‘substantial
evidence’ from which a rational jury could conclude that the defendant
committed the lesser offense, and that he is not guilty of the greater
offense. [Citations.]†(People
v. DePriest (2007) 42 Cal.4th 1, 50.)
There was no such substantial evidence in this case. The trial court was not required to sua sponte
instruct on grossly negligent shooting of a firearm. (People
v. Valdez (2004)
32 Cal.4th 73, 116 [there must be evidence a reasonable jury could find
persuasive to warrant instruction on lesser offense].)
Further, in the
absence of any evidence to support a theory of grossly negligent discharge of a
firearm rather than shooting at an occupied vehicle, we cannot conclude defense
counsel was ineffective for failing to request instruction on the lesser
included offense.
V. The
Trial Court Did Not Limit the Defense to Two Character Witnesses
Flores contends the trial court abused its discretion by limiting Flores to offering testimony
from only two character witnesses. Flores mischaracterizes the
record on this point. Although the trial
court cautioned against having cumulative testimony, it did not limit the
defense to only two character witnesses.
In every discussion on the issue, defense counsel voluntarily indicated
he would only call some of the available character witnesses. Before trial began, the court and defense
counsel had the following colloquy about the character witnesses:
“[Defense Counsel]: I haven’t provided a formal witness list
because all I have is character witnesses, but I will read four potential
character witnesses, if the court wants me to.
“Court: Okay. If the four witnesses are overlapping, pick
the best two.
“[Defense Counsel]:
I’m not planning to call them all.
I don’t know what their schedules will provide me.
“Court: So we
have a common understanding of a certain point where we get cumulative.
“[Defense Counsel]:
I understand that. Don’t plan to
call more than two.â€
Later
during the trial, the court asked how many character witnesses the defense
planned to call. Defense counsel
answered: “I have three of them. I’ll call two of them.†We cannot construe either exchange as the
court limiting the defense’s presentation of evidence. Initially, the court told defense counsel to
pick the best two witnesses if the
testimony was overlapping. After that
comment, defense counsel did not object but indicated he did not intend to call
more than two of the witnesses. The
trial court was never called upon to allow or exclude testimony from more than
two character witnesses. It was not an
abuse of discretion for the court to caution against cumulative testimony. (People
v. Mincey (1992) 2 Cal.4th 408, 439; see also Evid. Code, § 352.)
VI. No Ineffective Assistance of Counsel
Flores separately contends he received ineffective assistance of
counsel. However, his appellate briefing
on this issue merely lists a number of alleged defense counsel failures,
without providing accompanying argument or legal authorities.
demonstrating either that counsel’s actions fell below an objective standard of
reasonableness when judged by professional norms, or that but for these
failings the result of the trial would have been more favorable to him. (In re Cudjo
(1999) 20 Cal.4th 673, 687; People v.
Ledesma (1987) 43 Cal.3d 171, 216-218; see Strickland, supra, 466
U.S. at pp. 687-696.) Indeed, “all of [Flores’s] claims suffer from
the same defect—the present record does not preclude the possibility that
defense counsel’s actions were based upon reasonable strategic decisions . . .
. [U]nless the record reflects the
reason for counsel’s actions or omissions, or precludes the possibility of a
satisfactory explanation, we must reject a claim of ineffective assistance
raised on appeal. [Citation.] Such claims are more appropriately addressed
in a habeas corpus proceeding.†(
746.)
Trial Court Did Not Abuse its Discretion in Sentencing
2
The trial court
sentenced Flores to the high term of seven years on the Penal Code section 246
count. Flores contends this was an
abuse of discretion because he did not have a criminal record, the case did not
involve gang activity, and he was employed at the time of the offense. However, the trial court properly took into
consideration that Luis Orellana was a particularly vulnerable victim, and Flores’s behavior after the
shooting demonstrated he posed a serious danger to society. (See Cal. Rules of Court, rule 4.421(a)(3),
(b)(1); People v. Eades (1979) 95
Cal.App.3d 688, 690 [victim particularly vulnerable where defendant shot from
back seat of car, apparently without motivation or provocation].) The trial court concluded the aggravating
circumstances outweighed the mitigating circumstances. We will not reweigh these valid factors on
appeal. (People v. Delgado (2013) 214 Cal.App.4th 914, 919.) We find no abuse of discretion.
We
also reject Flores’s contention that the trial court improperly used the great bodily
injury factor to impose both the enhancement under section 12022.53,
subdivision (d) and the high term on count 2.
The trial court indicated it was imposing the upper term based on the
particular vulnerability of the victim and evidence that Flores posed a serious danger
to society. The court did not suggest it
was imposing the upper term based on the great bodily injury Orellana suffered. The aggravating factors the court relied upon
to impose the upper term were distinct from Orellana’s great bodily
injury. (People v. Yim (2007) 152 Cal.App.4th 366, 369.) We find no error.
VIII. The
Sentence Did Not Constitute Cruel and Unusual Punishment
Flores argues the sentence
imposed constituted cruel and unusual punishment because he had no criminal
record or gang affiliation, and he was employed at the time of his arrest. Even were this claim preserved for appellate
review we would reject it. (People v.
“Under the Eighth Amendment of the federal Constitution, ‘the courts
examine whether a punishment is grossly disproportionate to the crime.’ [Citation.]
‘Under the California Constitution, a sentence is cruel or unusual if it
is so disproportionate to the crime committed that it shocks the conscience and
offends fundamental notions of human dignity.’ [Citation.]â€
(Ibid.)
We find no such
disproportionate punishment here. Flores’s crime was extremely
serious and caused significant injury.
Orellana lost hearing in one ear, and suffered blurred vision, nerve
damage, and facial disfigurement as a result of the shooting. The crime itself was apparently
unprovoked. Flores shot into a car
containing four people, including Orellana’s 13-year-old cousin. He then fled the scene and tried to hide his
involvement by calling in false stolen vehicle reports and repeatedly lying to
police. The jury rejected Flores’s exculpatory version of
events in which he was not the shooter. Despite
Flores’s
lack of criminal history, there was no evidence indicating Flores’s actions were anything
but willful and malicious. In light of
these circumstances, the sentence was “neither ‘grossly disproportionate’ to
his crimes nor so disproportionate as to shock the conscience and offend
fundamental notions of human dignity.†(
973, 993, citing Harmelin v. Michigan (1991)
501 U.S. 957, 1001, and In re Lynch
(1972) 8 Cal.3d 410, 424; People v.
Szadziewicz (2008) 161 Cal.App.4th 823, 843-846.)
As we reject
this arguments on its merits we also decline to find Flores is entitled to relief
for ineffective assistance of counsel due to counsel’s failure to object to the
sentence as cruel and unusual.
Judgment Must Be Modified to Reflect a Parole Revocation Fine Rather than a
Probation Revocation Fine
The parties
agree the clerk’s transcript and abstract of judgment erroneously indicate the
trial court assessed a probation revocation fine, rather than a suspended
parole revocation fine. We agree that
the abstract of judgment must be corrected to reflect the fine pronounced in
court. (People v. Scott (2012) 203 Cal.App.4th 1303, 1324.)
DISPOSITION
The trial court
is ordered to correct its minutes from the sentencing hearing of May 4, 2012, and the abstract of judgment, by striking the reference to the
imposition of a probation revocation fine, and indicating a suspended $500
parole revocation fine was assessed. The
trial court is further ordered to forward a copy of the corrected abstract of
judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is
affirmed.
BIGELOW,
P. J.
We concur:
FLIER, J. GRIMES, J.
by their first names in this factual summary.
name="_ftn2" title="">[2] Miranda v.
