Opinion
F052045
4-21-2008
THE PEOPLE, Plaintiff and Respondent, v. JUAN RAMON AGUILAR et al., Defendants and Appellants.
Eileen S. Kotler, under appointment by the Court of Appeal, for Defendant and Appellant, Juan Ramon Aguilar. John Hardesty, under appointment by the Court of Appeal, for Defendant and Appellant, Manuel Lopez. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
INTRODUCTION
This case involves separate appeals by co-defendants. Manuel Lopez appeals his convictions and upper term sentence for attempted murder and assault with a firearm. He contends, among other things, that there was prosecutorial misconduct and ineffective assistance of counsel. Juan Ramon Aguilar appeals from his conviction and enhanced sentence for being an aider and abettor in the attempted murder. He contends, among other arguments, that there was insufficient evidence to support his conviction because the jury found that he did not know that Lopez was armed with a firearm. For the following reasons, we affirm the judgments against Lopez and Aguilar.
PROCEDURAL BACKGROUND
On August 4, 2006, a second amended, consolidated information was filed in Fresno County Superior Court charging appellants Juan Ramon Aguilar and Manuel Lopez with attempted premeditated and deliberate murder (Pen. Code, §§ 187, subd. (a), 664; Count 1) and assault with a firearm (§ 245, subd. (a)(2); Counts 2 and 3). Appellant Lopez was separately charged with possession of a firearm by a convicted felon (§ 12021, subd. (a)(1); Count 4). It was further alleged in regard to Count 1 that appellant Lopez discharged a firearm and caused great bodily injury or death (§ 12022.53, subd. (d)). It was also alleged in regard to Count 1 that a principal was armed with a firearm in the commission of the charged offense (§ 12022, subd. (a)(1), (d)). It was further alleged in regard to Counts 1, 2, and 3 that appellants, acting in concert, committed a hate crime in which appellant Lopez personally used a firearm. It was also alleged in regard to Counts 1 and 2 that Lopez personally inflicted great bodily injury (§ 12022.7, subd. (a)). In regard to Lopez, it was further alleged that he had suffered a conviction or juvenile adjudication of a "serious" or "violent" felony, that is, a "strike" (§ 667, subds. (a), (b)-(i), 1170.12, subds. (a)-(d)) and had served a separate term in state prison (§ 667.5, subd. (b)). In regard to Aguilar, it was alleged that he had suffered a conviction or juvenile adjudication of a "serious" or "violent" felony, that is, a "strike" (§ 667, subds. (a), (b)-(i), 1170.12, subds. (a)-(d)).
All further section citations are to the Penal Code, unless otherwise noted.
On August 8, 2006, appellants Lopez and Aguilar entered pleas of "not guilty," and denied the enhancements.
On October 30, 2006, appellants consolidated case was assigned for jury trial. The presentation of evidence took three days, concluding on November 6, 2006. Also on November 6, 2006, appellants various motions for a directed verdict of acquittal (§ 1118.1) were denied.
On November 8, 2006, outside the presence of the jury, the trial court noted for the record that Lopezs trial counsel had brought to the trial courts attention, a letter signed by inmates Priscilla Castillo and Marcy Duarte (hereafter the "Castillo-Duarte letter") which alleged that Felicia Tobias, a witness in the case who was in jail while the trial occurred, had admitted to them that she had lied on the stand to get Lopez three life terms in return for an offer of a home, a new car, and a new location. Defendants trial counsel moved for a "short continuance" to investigate the Castillo-Duarte letter in order to provide due process and a fair trial. The trial court denied the continuance.
That same day, the jury returned its verdicts, finding Lopez guilty of all counts and the various enhancements to be "true." On the same day, the jury found Aguilar guilty on Count 1 but acquitted him on Counts 2 and 3. The jury found "true" three of the four enhancements on Count 1 (the jury found that Aguilar did not know a principal was armed with a firearm in commission of the crime within the meaning of section 12022, subd. (a)).
Also on November 8, 2006, appellants waived their right to a jury trial on the charged prior convictions. On November 13, 2006, the prior conviction allegations were found "true" at a court trial.
On December 20, 2006, Aguilars motion for a new trial as well as his application for probation were denied and he was sentenced to life imprisonment with the possibility of parole plus four years, consecutive, for the enhancement pursuant to section 12022, subdivision (a)(1) and the enhancement pursuant to section 422.75, subdivision (b). Aguilar was ordered to serve two years in prison for the enhancement pursuant to section 422.75, subdivision (a); however, this term was stayed pursuant to section 654.
Lopezs application for probation was denied and he was sentenced to an aggregate term of 31 years determinate plus life with the possibility of parole, plus 25 years to life. On Count 1, Lopez was order to serve life imprisonment with the possibility of parole plus 25 years to life, consecutive for the firearm enhancement pursuant to section 12022.53, subdivision (d) and four years, consecutive, for the enhancement pursuant to section 422.75, subdivision (b). On Count 2, the trial court ordered Lopez to serve the upper term of eight years plus 10 years for the firearm enhancement thereon; three years for the great bodily injury enhancement pursuant to section 12022.7, subdivision (a); three years for the enhancement pursuant to section 422.75, subdivision (a); and four years for the enhancement pursuant to section 422.75, subdivision (b). However, all of these terms were stayed pursuant to section 654. On Count 3, Lopez was ordered to serve the upper term of eight years, consecutive, plus 10 years for the firearm use enhancement thereon and four years, consecutive, for the hate crimes enhancement pursuant to section 422.75, subdivision (b). In regard to Count 4, Lopez was ordered to serve the upper term of six years in prison; this term was ordered to be served concurrently with the terms of imprisonment imposed in regard to Counts 1 and 3. Lopez was also ordered to serve 10 years for the firearm enhancement on Count 4; three years for the enhancement pursuant to section 422.75, subdivision (a); and four years for the enhancement pursuant to section 422.75, subdivision (b). These terms, like those imposed in regard to Count 2, were stayed pursuant to section 654. Lopez was also ordered to serve a consecutive term of five years in prison for the prior conviction pursuant to section 667, subdivision (a)(1).
On January 9, 2007, Aguilars trial counsel filed a timely notice of appeal on Aguilars behalf. On this same date, Lopezs trial counsel filed a timely notice of appeal on Lopezs behalf. On January 16, 2007, Lopez, in propria persona, filed a separate notice of appeal.
FACTS
Lopez lived with his younger sister, Margarita Lopez ("Margarita"), her infant daughter, their grandmother, and Aguilar at a house on East Illinois Avenue in Fresno. Aguilar was the father of Margaritas children, and Aguilars mother also then lived in the house with the Lopezes. The neighborhood was mainly Hispanic, but there were people of other races and ethnicities in the neighborhood as well.
One of these neighbors was Albert Hood, Sr., an African-American male who also lived at a house on East Illinois Avenue, which was about three blocks away from Margaritas house. Hoods girlfriend, Felicia Tobias, had been living with him until the first part of September 2005, when she moved out and went to live with her cousin, Georgina Salazar, at a house that was across the street from Margaritas house. Tobias testified that Hood was still her boyfriend as of September 2005, but that they "were having problems."
Hood walked past Salazars house at least twice a day. In the morning, he would walk past Salazars house as he walked from his house to an AM/PM store where he would get a ride to work. After work, he would walk home from the same location. He also would walk from his house to Salazars house to visit Tobias. Margarita often saw Hood making these walks.
Hood testified that, during these walks, he frequently saw two or more young men, including on occasion, appellants, hanging out in front of Margaritas house. According to Hood, "If there was one or two of them, they would speak. If there was a gang of them, they would look at me like what you looking at nigger. Dont be looking over here."
The afternoon of September 27, 2005, Lopez was outside with a man Margarita knew only as "Duck." That afternoon, Margarita heard Lopez and Duck make racial comments about Hood. She heard them talking to "some girls across the street." Lopez said to the women, "whats up with all these niggers on the block." Duck then said that "he was gonna handle that shit." Margarita told Lopez "not to start problems at my house." Aguilar was not present during the conversation. Margarita later testified that Aguilar had Black friends, liked watching BET, and that she had never heard him speaking bad about Black people.
A.
Shooting Incident
The jury heard slightly different accounts of the shooting of Hood by Lopez on the night of September 27, 2005, from four witnesses.
1. Margaritas Testimony
According to Margarita, at approximately 9:00 p.m. that night, Aguilar came home. She tried to tell him what she overheard Lopez and Duck saying that afternoon — that Duck said he was "gonna handle" the fact that there were Blacks on the block — but he did not pay attention to her. Instead, he went outside to talk to a man named Joey. Lopez also was outside, talking to Duck. There were several other men outside at the time. As Margarita watched, Duck took a handgun out of the trunk of his car and gave it to Lopez, who then put it somewhere in his pants. Later, Margarita changed her testimony on this point, stating that Aguilar had not gotten home yet when she saw Duck give the gun to Lopez. A short while later, Margarita saw Hood, who was across the street, walking in the direction of Salazars house. Because the lights were on outside her house, Margarita could easily see it was Hood.
During this time, Aguilar and Lopez and the other men were outside Margaritas house. According to Margarita, Hood approached the group of men and said, "Whats up then?" Hood and Aguilar walked towards one another. Then, without warning, Hood suddenly hit Aguilar in the face, causing Aguilar to stagger to the side. Margarita said Aguilar looked "dazed out."
Immediately after Hood had hit Aguilar, Lopez fired three shots at Hood. Margarita heard three gunshots. She turned and ran inside. She then turned off all the lights on the house. Lopez, along with several other men, "just jumped in cars and took off." Duck left by himself in his own car.
The police came to Margaritas house about half an hour after the shooting. Margarita said she did not talk to the police at that time because she "didnt want to be involved in nothing." She was interviewed by the police about the incident a couple of days later; during the interview, she told the police that she did not see anything.
2. Tobiass Testimony
Tobias was outside in the front yard of Salazars house at about 10:00 p.m. on the night of September 27, 2005. She saw Hood and his son, Albert Hood, Jr. ("Albert"), walking up the street but before he could get to Salazars house, three young men approached them: Lopez, Aguilar, and another man that Tobias did not know. Tobias heard one of the young men say, "[Y]ou didnt get the fucking message. We dont want no fuckin niggers on this block." Tobias then saw Hood hitting Aguilar in the face whereupon "Manuel pulled his gun to shoot" Hood. Tobias claimed she heard "at least six, seven gunshots."
After Hood was shot, Lopez and Aguilar and the other man "jumped in their car." Tobias then "directly told them to their faces that" she was going to call the police. Lopez responded that he "didnt give a fuck." Tobias saw Lopez wrap the handgun he was holding in a red bandana as he ran to the car. Aguilar drove away in a black Honda sedan; Lopez was in the front passenger seat.
Tobias went to Hoods aid. She dragged him from the street to Salazars house. After getting Hood into the house, she called 911. Shortly thereafter, police and emergency medical services personnel came to Salazars house. Tobias testified that when she spoke with the police and made a statement, the incident was still fresh in her mind. According to Tobias, "[w]hat I told [the police officer] back then I cant really remember because its been a long, long time. But whatever I did say, that was what was the truth."
Tobias also admitted that she had a 2006 felony conviction for evading police officers.
On cross-examination, Lopezs trial counsel stated "Im gonna have to walk you through your prior statement because it was very different than the statement you gave today." He proceeded to do so, by, for example, pointing out that in her prior statement to police officers (in the police report), Tobias stated that she ran outside Salazars house after she heard gunshots. However, Lopezs trial counsel was never able to get Tobias to explicitly admit that she never saw the shooting.
3. Hoods Testimony
Hood testified that he walked to Salazars house at about 11:00 p.m. on September 27, 2005. He was going to the house to get Tobias because she had told his son, Albert, that she "wanted to come home" to his house. Hood was accompanied by his son, Albert. Hood was on the north side of the street, across from Margaritas house, because he "didnt want no problems." He had been told by Tobias that "they were gonna beat me up if I walked down the street again." Hood understood "they" to mean Lopez and Aguilar. Tobias also told Hood that she had told "them that they couldnt whoop [Hood].... So she said then they said that they would shoot me."
When Hood got to Salazars house, he talked briefly with Tobias. As they stood outside the house talking, Hood saw "a bunch of cars coming, people getting out and stuff at" Margaritas house. Tobias said she had to gather her clothes before she could go with Hood; he said he would go get his car and come back for her.
Hood and Albert started to walk home. Three young men came up to them. Hood said Aguilar was in front of the other two men, one of whom was Lopez. Lopez and the other man were behind Aguilar "on each side." Hood said that he had seen Lopez on the porch in front of Margaritas house a couple of times before that night, but they had never spoken. Hood said that he had once talked to Aguilar about "hooking up some music in his car or something."
Aguilar stopped within two-and-a-half to three feet of Hood. Aguilar said, "Hey dog, can I holler at you?" Hood replied, "I aint no dog, but you can holler all you want." After Hood told his son to step back, Aguilar said, "Did you get my message?" Hood said, "[W]hat message?" Aguilar said, "We dont want no niggers walking down this street, mainly you." Hood then hit Aguilar, causing Aguilar to fall back.
After hitting Aguilar, Hood went after the third man while Lopez "fumble[d] for something" in the waistband of his pants. A moment later, Hood "felt something sting [his] arm." Hood told Albert to run because he (Hood) had been shot. Hood turned towards Lopez; Lopez shot Hood again, this time in the chest. Hood then turned and started to run. As he did, Hood was shot in the back. His son "kind of grabbed" him and kept running with him. Hood said he heard five gun shots altogether. The shots were fired in rapid succession.
Hood said they ran into Salazars house. As he sat on Salazars couch, Hood heard "cars burning out." He noticed Tobias running out with sticks and a bottle hollering some name. "So [he] told her to get back in. Just call the ambulance[.]"
4. Albert Hood, Jr.s Testimony
Alberts testimony was consistent with his fathers testimony about the shooting incident. However, Albert was not able to positively identify Aguilar as the "heavyset" man whom his father punched. Moreover, Albert testified that the heavyset man began saying "Didnt I tell ... " but did not finish before Hood hit the man.
B.
Events After The Shooting Incident
An ambulance subsequently came to Salazars residence and Hood was taken to the hospital, where his injuries were treated. It was stipulated that, if called to testify, Dr. Davis, the physician who had treated Hood at the University Medical Center, would testify as follows:
"Albert Hood was treated by emergency room doctors at University Medical Center at 11:40 p.m. on September 27, 2005. Albert Hood was hit by three bullets resulting in four gunshot wounds to his body. A bullet entered, went through and exited Albert Hoods right arm. Another bullet hit Albert Hoods right chest. Another bullet his [sic] Albert Hoods right back. The bullet that hit Albert Hoods right chest caused injury to Albert Hoods internal organs. Specifically, this bullet pierced Albert Hoods liver, right diaphragm, and kidneys. The injury [sic] Albert Hood received from the gunshot wounds were life-threatening. Without the medical attention he received at the University Medical Center, Albert Hood would have died."
It was further stipulated that Hoods injuries constituted great bodily injury for the purposes of the charged enhancements pursuant to sections 12022.7 and 12022.53, subdivision (d).
Appellants did not testify at trial.
DISCUSSION
I.
Aguilars Conviction
On appeal, Aguilar contends that there was insufficient evidence to support his conviction for attempted murder. According to Aguilar, to convict him as an aider and abettor in the attempted murder of Hood requires proof beyond a reasonable doubt that Aguilar knew of Lopezs intent to shoot Hood and had the specific intent to facilitate or encourage it. However, in this case, the jury also found that Aguilar did not know that Lopez had a gun. Thus, according to Aguilar, there was not substantial evidence to support his conviction. We disagree.
The test to determine a claim of insufficient evidence is whether, on the entire record, a rational trier of fact could find appellant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576-578.) In making this determination, the appellate court must review the evidence in a light most favorable to the judgment and presume the existence of every fact the trier of fact could reasonably deduce from the evidence. The task of the court on appeal is twofold. First, the court must resolve the issue in light of the whole record. Second, the court must judge whether the evidence of each of the elements of the offense is substantial. (Id. at pp. 576-577.) "Substantial evidence" is evidence that is credible and of solid value, from which a rational trier of fact could have found in favor of the prosecution beyond a reasonable doubt. (Id. at p. 578.)
Here, we must determine whether there is substantial evidence for a jury to convict Aguilar of aiding and abetting the shooting of Hood. An aider and abettor is one who aids, promotes, encourages or instigates a crime with knowledge of the unlawful purposes of the perpetrator and with the intent to assist, facilitate or encourage the commission of the crime. (People v. Beeman (1984) 35 Cal.3d 547, 561.) "Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act towards accomplishing the intended killing. [Citations.]" (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 7.)
Here, there were inherently inconsistent verdicts because the jury found that Aguilar was guilty of aiding and abetting the shooting of Hood but also found not true the allegation that Aguilar knew that Lopez possessed a firearm. However, "[a]s a general rule, inherently inconsistent verdicts are allowed to stand. [Citations.] For example, `if an acquittal of one count is factually irreconcilable with a conviction on another, or if a not true finding of an enhancement allegation is inconsistent with a conviction of the substantive offense, effect is given to both. [Citation.] Although `"error," in the sense that the jury has not followed the courts instructions, most certainly has occurred in such situations, `it is unclear whose ox has been gored. [Citation.] It is possible that the jury arrived at an inconsistent conclusion through `mistake, compromise, or lenity. [Citation.]" (People v. Avila (2006) 38 Cal.4th 491, 600.)
In order to convict Aguilar of aiding and abetting Lopezs shooting of Hood, substantial evidence must support the fact that Aguilar knew that Lopez was armed with a firearm and intended to shoot Hood. That substantial evidence can be found in the trial testimony of Margarita. Margarita testified that she saw Duck take a small handgun out from the trunk of his car to give to Lopez. In one version of her testimony, she was inside the house and Aguilar was outside the house talking to Joey when this happened. It is reasonable for a jury to infer that Aguilar, who was outside with Lopez, also would have seen Duck go to the trunk of his car, get a gun, and give it to Lopez. In the other version of her testimony, the one which the prosecutor apparently believed based upon his closing argument, Margarita saw Duck give Lopez the gun not long after Duck said that he was going to "handle" the problem of Blacks on the block. Margarita told Lopez and Duck that they should not start any trouble in front of her house. When Aguilar came home, she tried to tell him about it "so he could know what was going on." It would be reasonable for the jury to conclude that she would have told Aguilar that Duck had given Lopez a handgun.
There was also substantial evidence to support the fact that Aguilar knew that Lopez intended to shoot Hood. Tobias and Hood both testified that Lopez had threatened to shoot Hood if Lopez saw Hood walking down the street. Aguilar was present when Lopez made this threat; it was alleged that Lopez and Aguilar threatened to shoot Hood. Margarita also testified that she tried to tell Aguilar that she had overheard Lopez and Duck saying that they were going to "handle" the problem of Black people on the block, but that he did not pay attention to her. It was reasonable for a jury to infer that Aguilar did hear Margarita even though it appeared to Margarita that he was not paying attention.
Thus, there was sufficient evidence to support Aguilars conviction for attempted murder because a jury could reasonably infer that Aguilar knew that Lopez intended to use a handgun to shoot and kill Hood.
II.
CALCRIM No. 220
Appellants jointly contend that their convictions should be reversed because the trial court improperly instructed the jury on the burden of proof on all the charged offenses because the trial court used CALCRIM No. 220 on reasonable doubt. According to appellants, CALCRIM No. 220 is constitutionally defective because it removes the ability of the defendant to prove that he is not guilty based upon the lack of evidence about his guilt. We disagree.
As given in this case, CALCRIM No. 220 provides:
"The fact that a criminal charge has been filed against the defendants is not evidence that the charge is true. You must not be biased against the defendants just because they have been arrested, charged with a crime, or brought to trial. A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime and special allegation beyond a reasonable doubt. [¶ ] Whenever I tell you that the People must prove something, I mean they must prove it beyond a reasonable doubt unless I would specifically tell you otherwise. [¶ ] 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 deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendants guilty beyond a reasonable doubt, they are entitled to an acquittal, and you must find them not guilty."
From the jury instruction, we conclude that CALCRIM No. 220 is not constitutionally defective. CALCRIM No. 220 addresses the burden of the prosecution, not of the defendants. Under CALCRIM No. 220, the prosecution must prove beyond a reasonable doubt that the defendants are guilty by evidence that is presented at trial. CALCRIM No. 220 does not impose this same burden on defendants. Thus, under CALCRIM No. 220, a jury can still find the defendants not guilty by insufficient evidence or by lack of evidence. We also note that appellants argument has been rejected by our court recently, and we see no reason to reassess that decision. (See People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1156-1157.)
III.
Denial of Continuance
Appellants also contend that their convictions should be reversed because the trial court abused its discretion in denying their motion for a short continuance to investigate the Castillo-Duarte letter. According to appellants, the Castillo-Duarte letter indicated a potential violation of People v. Brady (1963) 373 U.S. 83, 87 (Brady), because the letter alleged that the prosecutor offered a house, car and new location to Tobias in return for her testimony. Appellants also contend that the Castillo-Duarte letter could be used to impeach Tobiass testimony, especially her testimony that appellants had threatened to kill Hood prior to the shooting incident, which was key to the finding of premeditation. We disagree that the trial court abused its discretion in this case.
The decision whether or not to grant a continuance of a matter rests within the sound discretion of the trial court, and the party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion. (People v. Beeler (1995) 9 Cal.4th 953, 1003.) A trial court abuses its discretion where the decision is outside the bounds of reason. (People v. Jones (1998) 17 Cal.4th 279, 318.) The denial of a continuance may be so arbitrary as to deny due process. (People v. Frye (1998) 18 Cal.4th 894, 1012-1013) Whether denial of a continuance is so arbitrary as to violate due process depends upon the circumstances of the case, "particularly in the reasons presented to the trial judge at the time the request is denied." (Ungar v. Sarafite (1964) 376 U.S. 575, 589.)
Our review of the record here indicates that the trial court carefully considered the circumstances and contents of the Castillo-Duarte letter before denying the continuance. After learning about the Castillo-Duarte letter, the trial court reviewed its notes on the testimony of Tobias. The trial court also noted that, while it was not discounting or accepting the contents of the Castillo-Duarte letter, "it is vague at best. She [Tobias] lied on the stand. Theres absolutely no specificity to that." The trial court noted that the investigation of the Castillo-Duarte letter would require three investigations — one by each of the two co-defendants and one by the prosecution.
In response to the suggestion that there was a potential Brady violation, the District Attorney in this case made the following representation to the trial court: "I would also represent that no one in our office makes any promises on our cases, Your Honor." The trial court accepted the representation.
The trial court stated that it would consider the following factors in denying the continuance: 1) the stage of the proceedings when the motion was made, 2) whether the motion was timely made, 3) the prospect that the jury would accord it undue emphasis, and 4) the significance of the evidence. The trial court noted that the case had proceeded past closing arguments and that the motion for a continuance appeared timely. The trial court noted its belief that the continuance would be longer than a couple of days because multiple investigations were required to properly evaluate the Castillo-Duarte letter. The trial court thought that it could instruct the jury properly so that there would be no undue emphasis. The trial court noted that the evidence was not significant in that "at very best" "there would be impeachment testimony as to this one witness." In light of these factors, the trial court concluded that a grant of a continuance to investigate the letter was not warranted. The trial court also rejected the contention that there was prosecutorial misconduct stating that "there is precious little basis" in the letter for that contention.
We conclude that, on this record, the trial court did not abuse its discretion. The trial court carefully considered the circumstances of the case and reached conclusions that were within the bounds of reason. Although appellants contend that the continuance would be short, we agree with the trial court that the continuance would not be short. We can foresee interviews of Castillo and Duarte by each of the three parties, review of recent prison records to assess the credibility of the allegations, and interviews with Tobias to respond to these allegations. These interviews and investigations likely would not be completed within a couple of days, and the trial courts conclusion that it would take three to four weeks is well within the bounds of rationality. Furthermore, the significance of the evidence in the Castillo-Duarte letter is undermined by the District Attorneys representation that his office does not make promises in their cases. The trial court accepted that representation, and it was well within its discretion to do so. Thus, the trial court did not abuse its discretion in denying the continuance.
Of course, if appellants have or subsequently acquire evidence to support the allegations in the Castillo-Duarte letter, they should seek relief in the superior court.
IV.
Ineffective Assistance of Lopezs Trial Counsel
Lopez contends that the judgment should be reversed because he was provided ineffective assistance of counsel in two instances. In order to prevail on a claim for ineffective assistance of counsel, Lopez must make two showings. First, he must show that counsels representation fell below an objective standard for reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-88; People v. Gray (2005) 37 Cal.4th 168, 206-207.) Second, Lopez must show that there is a reasonable probability that, but for counsels unprofessional errors, the result would have been more favorable to the defendant. (Strickland v. Washington, supra, 466 U.S. at p. 687; People v. Kelly (1992) 1 Cal.4th 495, 519-520.) We examine each of Lopezs claims of ineffective assistance under this standard.
1. Tobiass Perception of the Shooting
Lopezs first claim of ineffective assistance of counsel is that his trial counsel "failed inexplicably to obtain from [Tobias] on cross-examination any testimony that distinctly affirmed counsels assertion during closing argument that [Tobias] admitted `[w]hatever I said that day, thats what really happened." Essentially, Lopez wanted his trial counsel to get Tobias to admit that her trial testimony — that she saw the shooting — was different from her prior statement to the police and the prior statement was the more truthful recollection of events. Because Tobias never made these admissions, Lopez believes that his trial counsels argument on this point was severely undermined. We disagree with this contention.
Trial counsel was able to get Tobias to admit that what she had stated to the police at that time was fresher and more accurate. The record on appeal provides:
"Q Before you said, though, what was stated to the police at the time was fresh on your mind and more accurate, correct?
A Yeah.
Q And in that you stated that
THE COURT: No, no. Mistates, the more fresher on her mind.
[LOPEZS TRIAL COUNSEL]: Q It was more fresh on your mind, correct?
A Yes."
It thus appears that trial counsel did get Tobias to admit that what was in the police report was more accurate. And the police report indicated that she stated that she was inside and did not see the shooting. Although trial counsel could not get Tobias to state that she never saw the shooting, and Tobias subsequently asserted that "I know what the police report says, but I know what I remember," we believed there was ample evidence from Tobiass cross-examination to support trial counsels assertion that Tobias had admitted "it was fresher on my mind the night this happened. Whatever I said that day, thats what really happened. She said she was inside, didnt see anything, and ran outside."
Moreover, even if trial counsel erred in failing to get Tobias to admit that she did not see the shooting, there was evidence from other percipient witnesses that supported trial counsels closing argument. Specifically, Hood testified that Tobias was inside the house and then she ran outside the house after the shooting. Margarita and Albert also did not observe the presence of Tobias during the shooting incident.
Thus, we conclude that there was no ineffective assistance of counsel on this claim.
2. Failure to Appreciate the Introduction of Evidence on the Hate Crime and Premeditation Allegations.
Lopez next contends that he was provided ineffective assistance of counsel because his trial counsel failed to appreciate the fact that the prosecution had introduced evidence against Lopez on the hate crime and premeditation allegations. According to Lopez, as a result of this failure, his trial counsel failed to cross-examine Tobias on these allegations.
After the verdict, Aguilars trial counsel moved to dismiss pursuant to section 1118.1, Lopezs trial counsel announced that he joined in the section 1118.1 motion as to the hate crime allegation. Lopezs trial counsel asserted that the prosecution had not submitted evidence sufficient on the hate crime allegation. The trial court asked, "Wasnt there—if not an abundance, but there was multiple testimony that Mr. Lopez had made remarks about Blacks in the neighborhood prior to the actual shooting." Lopezs trial counsel responded, "I thought that was Mr. Aguilar." The record indicates that trial counsel was incorrect on this point. However, the same record does not indicate that trial counsel failed to appreciate that the prosecution had introduced evidence on the premeditation allegations.
We also believe that there was adequate cross-examination that undermined Tobiass testimony because, besides alerting the jury to the discrepancy between Tobiass trial testimony and her statement to the police that she did not see the shooting, trial counsel also was able to elicit that Hood is still her boyfriend and that she was not aware that the police could not find drag marks outside Salazars house with blood or anything.
Moreover, even assuming that trial counsel erred when he failed to ask Tobias about her allegations relating to premeditation and hate crime, there was no prejudice because these allegations were supported by substantial evidence. Specifically, Margarita testified that the afternoon before the shooting, Lopez had stated "Whats up with all these niggers on the block?" and that Duck had said that "he was gonna handle that shit." Later that day, Duck had then given Lopez a handgun. From that testimony, a jury could have reasonably inferred that Lopez premeditated the shooting and intended to commit a hate crime.
Thus, we reject Lopezs claim of ineffective assistance of counsel on this point.
V.
Prosecutorial Misconduct
Lopez next contends that the judgment should be reversed because the prosecutor committed misconduct during closing argument.
In his closing argument, the prosecutor addressed the reasonable doubt standard as follows:
"Reasonable doubt, again, is not really complex. Whatever example youre given for reasonable doubt or beyond a reasonable doubt, whatever numbers, whatever formulas you see, thats nowhere in the laws. Thats just argument counsel may make. Again, reasonable doubt is just an abiding conviction in the truth of the charge. That is all it is. Nothing more complex than that. Decisions are made every day based on abiding convictions in making that decision." (Italics added.)
The remainder of the prosecutors comments relating to reasonable doubt accurately reflected the law. The prosecutor also told the jury, "Your sole decision is to take the law the Judge is going to give to you and apply it." On appeal, Lopez contends that the prosecutor committed misconduct by misstating the law on reasonable doubt. We disagree.
This case is superficially similar to People v. Nguyen (1995) 40 Cal.App.4th 28, (Nguyen), wherein the prosecutor had argued:
"`The standard is reasonable doubt. That is the standard in every single criminal case. And the jails and prisons are full, ladies and gentlemen. [¶ ] Its a very reachable standard that you use every day in your lives when you make important decisions, decisions about whether you want to get married, decisions that take your life at stake when you change lanes as youre driving. If you have reasonable doubt that youre going to get in a car accident, you dont change lanes." (Id. at pp. 35-36.)
In Nguyen, the appellate court "strongly disapprove[d] of arguments suggesting the reasonable doubt standard is used in daily life to decide such questions as whether to change lanes or marry." (Nguyen, supra, 40 Cal.App.4th at p. 36; see also People v. Johnson (2004) 115 Cal.App.4th 1169, 1171 [rejecting the general argument that people planning vacations or scheduling flights apply the reasonable doubt standard in making their decisions].)
Here, however, the prosecutor did not say that the reasonable doubt standard is what is used in every day life to decide whether to get married, to change lanes, to take a vacation, or to get on a plane. Rather, he stated that "[d]ecisions are made every day based on abiding convictions in making that decision." We believe that this is a true statement, although an individual person likely would not be making decisions based on a reasonable person standard on a daily basis. Moreover, the prosecutor did not give any examples but merely reiterated the language in the jury instructions on the reasonable doubt standard. Furthermore, the prosecutor told the jury to take the law that the trial judge was going to give them and to apply that law. And here, the jury was properly instructed on the reasonable doubt standard by the trial judge. (See Discussion, Part II, ante.) Thus, any error was harmless.
However, we can appreciate that a juror might misunderstand the prosecutors statement, especially if the juror focused on it out of context. Even in such situations however, the claim of error has been forfeited because trial counsel failed to object. In a recent case, the California Supreme Court explained that: "`A defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety. [Citation.] A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsels inaction violated the defendants constitutional right to the effective assistance of counsel. The appellate record, however, rarely shows that the failure to object was the result of counsels incompetence; generally, such claims are more appropriately litigated on habeas corpus, which allows for an evidentiary hearing where the reasons for defense counsels actions or omissions can be explored. [Citation.]" (People v. Lopez (2008) 42 Cal.4th 960, 966.)
Here, there is no evidence on the record about why Lopezs trial counsel failed to object. It is possible that trial counsel did not believe that a jury would have misunderstood the prosecutors statement as being contrary to the jury instruction on reasonable doubt or trial counsel thought any error was harmless. Thus, we decline to reach Lopezs claim of ineffective assistance of counsel for failing to object to the prosecutors statement. As stated by our Supreme Court, that claim is more appropriately litigated on habeas corpus.
VI.
Sentencing of Aguilar
With respect to his sentence on the attempted murder charge, Aguilar contends that it should be reduced to a determinate sentence of five, seven, or nine years because the jury did not specifically find that he possessed the requisite mental state of willfulness, deliberation, and premeditation. We disagree.
Section 664, subdivision (a) provides in relevant part: "[I]f the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole. If the crime attempted is any other one in which the maximum sentence is life imprisonment or death, the person guilty of the attempt shall be punished by imprisonment in state prison for five, seven, or nine years. The additional term provided in this section ... shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact." (§ 664, subd. (a).)
In People v. Lee (2003) 31 Cal.4th 613 (Lee), the California Supreme Court noted that "section 664(a) states only that the murder attempted must have been willful, deliberate, and premeditated, not that the attempted murderer personally must have acted willfully and with deliberation and premeditation." (People v. Lee, supra, 31 Cal.4th at p. 622.) The Lee court held that "section 664(a) properly must be interpreted to require only that the murder attempted was willful, deliberate, and premeditated, but not to require that an attempted murderer personally acted with willfulness, deliberation, and premeditation, even if he or she is guilty as an aider and abettor." (Id. at p. 627.)
Here, the jury found that the principal, Lopez, committed the attempted murder willfully, deliberately and with premeditation, within the meaning of section 664, subdivision (a). According to the jury instruction on premeditation that was given, this finding meant the jury concluded that the attempted murder was done willfully and with premeditation and deliberation. The jury also found Aguilar guilty of aiding and abetting the attempted murder. Thus, even though there was no specific finding as to Aguilars mental state, the jurys finding that the attempted murder was willful, deliberate and premeditated renders Aguilar eligible for the enhanced sentence of life imprisonment provided for in section 664, subdivision (a).
Aguilar contends that this case is distinguishable from Lee because in this case the jury never made a finding on the special allegation of willfulness, deliberation and premeditation as to Aguilar. We disagree that this renders the enhanced sentence erroneous. The jury did not have to find that Aguilar had the mental state of willfulness, deliberation and premeditation to render him eligible for the enhanced sentence. As the Lee Court noted: "[T]he Legislature reasonably could have determined that an attempted murderer who is guilty as an aider and abettor, but who did not personally act with willfulness, deliberation, and premeditation, is sufficiently blameworthy to be punished with life imprisonment." (Lee, supra, 31 Cal.4th at p. 624.) Thus, under Lee, there was no error in sentencing.
VII.
Sentencing of Lopez
Finally, Lopez challenges his sentencing to the upper term of imprisonment on all counts and their corresponding enhancements as being unconstitutional under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Cunningham v. California (2007) ___ U.S. ___ (Cunningham) because the sentence is based upon recidivist factors that the U.S. Supreme Court is likely to find must be proven beyond a reasonable doubt. We disagree.
In Cunningham, the United States Supreme Court held that Californias Determinate Sentencing Law "violates Apprendis bright-line rule: Except for a prior conviction, `any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Cunningham, supra, 127 S.Ct. at p. 868.) However, the Apprendi exception for prior convictions has been broadly interpreted by California courts to apply to facts relating to defendants recidivism. In People v. Black (2007) 41 Cal.4th 799, 818-820, f n.9 (Black II), the California Supreme Court held that a defendants prior convictions can be found true by a judge by a preponderance of the evidence, and that a defendants criminal history can be an aggravating circumstance that independently satisfies the Sixth Amendment of the federal Constitution and renders the defendant eligible for the upper term. As the U.S. Supreme Court has not ruled otherwise, we are bound by Black II. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Here, the trial court found:
"[T]he factors in aggravation as set forth in the Report of Probation clearly outweigh the—any factors in mitigation. This crime clearly involved great violence, great bodily harm, and factors disclosing a high degree of cruelty, viciousness, or callousness. Callousness in particular, Mr. Lopez. This Court is appalled at the casual nature which you chose to shoot repeatedly this victim. And based on the evidence, likewise, this crime indicated planning, although certainly it would be unduly complimentary to you or your co-defendant to say that it involved sophistication or planning. It did further as to you, evidence the violent conduct, your convictions as an adult and juvenile are numerous, increasing in seriousness which is self-evident in your record, Mr. Lopez. You begin as a juvenile with a petty theft in 1992. And likewise, your record of criminality goes effectively unabated. You were committed to the California Youth Authority in 1997. And then in the year 2000 you began your adult criminal career with an [Health and Safety Code section] 11350, Department of Corrections for that. Then another of [the] 459 felony in 01. Another 459/460 in 01. Violation of parole, sent to corrections as of 05 to finish your term. And then this matter in 06. So there is an uninterrupted record of criminality, Mr. Lopez. You served prior prison terms. Your conduct on parole or probation was unsatisfactory. I think the record should indicate likewise, I think, we did this before, Mr. Lopez was not on probation or parole at the time of this event."
In light of the trial courts findings that Lopez was convicted of prior felonies and served prior prison terms for felony convictions, and the lack of any apparent mitigation, the record amply establishes that the trial court could have imposed the upper term. Thus, we reject Lopezs challenge of his sentence.
DISPOSION
The judgments are affirmed.
We concur:
Harris, J.
Hill, J.