Opinion
G057654
10-27-2020
THE PEOPLE, Plaintiff and Respondent, v. DANIEL BONILLA, Defendant and Appellant.
Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Alana R. Butler, and Heather B. Arambarri, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CF0197) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael A.. Leversen, Judge. Affirmed as modified. Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Alana R. Butler, and Heather B. Arambarri, Deputy Attorneys General, for Plaintiff and Respondent.
The information filed in superior court charged defendant Daniel Bonilla, a minor at the time of the charged offenses, with one count each of attempted murder with deliberation and premeditation (Pen. Code, §§ 664, subd. (a), 187, subd. (a); count 1), assault with a firearm (§ 245, subd. (a)(2); count 2), and active participation in a criminal street gang (§ 186.22, subd. (a); count 3). In connection with counts 1 and 2, the information further alleged the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), Bonilla personally used a firearm (§ 12022.5, subd. (a)) and personally inflicted great bodily injury (§ 12022.7, subd.(a)). Lastly, the information alleged Bonilla personally discharged a firearm (§ 12022.53, subd. (c)) and personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)) in the committing of attempted murder.
All statutory references are to the Penal Code unless otherwise stated.
The jury found Bonilla guilty of attempted murder and found the firearm and the great bodily injury enhancements true, but found the attempted murder was not deliberate and premeditated. It also found Bonilla guilty of assault with a firearm, found true the firearm enhancements alleged in connection with that count, and found Bonilla guilty of actively participating in a criminal street gang.
The court sentenced Bonilla to the middle term of seven years on the attempted murder (count 1) and imposed a consecutive term of 25 years to life on the section 12022.53, subdivision (d) enhancement attached to the attempted murder. Punishment on the remaining enhancements attached to count 1 was either stayed or stricken. The court imposed a three-year concurrent sentence on count 2 (assault with a firearm) and stayed the sentence pursuant to section 654. The sentences on the enhancements attached to count 2 were also stayed. Lastly, the court imposed a three-year concurrent sentence on count 3 (active participation in a criminal street gang).
Bonilla claims he was denied the effective assistance of counsel when his attorney did not object to the introduction into evidence of the codefendants' plea agreements; the trial court committed prejudicial error in instructing the jury; the trial court erred in failing to stay the sentence imposed on count 3 pursuant to section 654; and the abstract of judgment must be amended to reflect the section 654 stay imposed on count 2. The Attorney General appropriately concedes the merit of the last two contentions.
We conclude the ineffective assistance of counsel claim should be litigated in a separate habeas corpus proceeding, not in this appeal. We reject the instruction error claim, but accept the Attorney General's concession of the section 654 claims. So, we will modify the judgment accordingly, and affirm the judgment as modified.
FACTS
J.G.
On January 15, 2015, J.G., her boyfriend L.C., and her four children were in her white Honda, about to go to the park. J.G. was driving. The Honda was in the middle of the driveway of a mobile home park, about to turn onto First Street, when J.G. saw a man later identified as A.C. running from the east and toward her car. He ran to the front of her Honda. She was in shock and stopped the car. A.C. tried to get into the back seat of the Honda. Then she saw a silver Lexus driving from the east. It made a U-turn in front of the mobile home park and a person she later identified as Bonilla got out of the car, although J.G. did not remember which door he exited. Bonilla was the only person to get out of the car. He had a gun and started shooting at A.C. A.C. ran to the rear of the Honda, attempting to hide.
J.G. told a police officer Bonilla wore a gray hooded sweatshirt and chased three men toward the driveway of the mobile home park.
Bonilla ran after A.C. When Bonilla was in front of J.G.'s car, she heard loud popping and directed her children to "duck down." After firing four or five shots, Bonilla ran back to the Lexus. It drove off to the east. J.G. pulled onto First Street and drove in the opposite direction, because she did not know if Bonilla was going to return. She then made a U-turn at Shannon Street and went back to the mobile home park to call the police. Once she returned, J.G. saw blood on her car where A.C. had leaned against it.
One of the responding police officers eventually took her to a restaurant parking lot where four young males in handcuffs were shown to her. J.G. saw the car Bonilla had been in parked in the restaurant parking lot. She looked at each of the young males, but only recognized Bonilla, the shooter. The officer who took J.G. to the show up, said she made her identification of Bonilla from 20 feet away. After the identification, the officer took J.G. home, and then L.G. was taken to see if he could identify anyone the police had detained. L.C.
According to officer Gonzalo Gallardo, there were five male Hispanics detained in the restaurant parking lot.
L.C. said he heard a shot and saw A.C. run into the driveway where he, J.G., and the four children were in J.G.'s car. It was clear A.C. was running away from something. A car then appeared in the center divider. The vehicle appeared to be following A.C. A male got out of the car via the left rear door and gave chase. After unsuccessfully attempting to hide in some bushes, A.C. went to the driver's side of their car and attempted to get in. Bonilla was 10 feet in front of the Honda and fired at A.C., who was attempting to get into the car. L.C. said Bonilla fired at least three shots at A.C. with a revolver.
According to L.C., he made eye contact with Bonilla when he (L.C.) put his hands up and motioned to Bonilla that there were children in the car. J.G. and the children in the back seat were screaming. A.C. was calling out, "Help me, help me." L.C. yelled at him that there were children in the car. L.C. could see blood on the back of A.C.'s shirt. Bonilla ran back to the car stopped in the middle of the street and got in. The car then sped away. A.C. ran toward the office at the mobile home park.
L.C. and J.G. argued over what to do next. J.G. first drove in the opposite direction of the Lexus and subsequently made a U-turn and returned to the mobile home park after L.C. told J.G., "Let's go back home." Once they were back, they checked on the children.
After the police responded, an officer took J.G. away in a patrol car and L.C. stayed with the children. When J.G. returned, an officer took L.C. to a location where he was shown five young male Hispanics who looked like they were in their teens. He was shown the males one at a time. He only recognized one: Bonilla, the shooter. L.C. was confident in his identification of Bonilla. He said he never forgets a face.
When he spoke to the police, L.C. gave his first name, but used his stepbrother's last name. He did so because he is an undocumented alien and he also had an outstanding warrant for his arrest. J.F.
J.F. testified for the prosecution after entering into a plea agreement. Although he had been charged with possession of methamphetamine for sale (Health & Saf. Code, § 11378), in addition to the attempted murder, assault with a firearm, and active gang participation, along with Bonilla, J.F. pled guilty to being an accessory after the fact (§ 32) and actively participating in a criminal street gang. In exchange for his testimony in this and another matter, J.F. said he will be sentenced to credit time served.
According to J.F., he had been washing clothing in the community laundromat at the mobile home park with his two brothers B.F. and G.F., when there was an altercation with A.C., someone he did not know. A.C. approached B.F. and said, "F***k Middleside." B.F. replied that he was not from Middleside. After another profane comment, A.C. left the laundromat.
J.F. stated Middleside is a gang and the mobile home park is in or near territory claimed by the gang. J.F.'s brothers know people in the gang.
J.F. and his brothers were hungry and decided to get something to eat, so Bonilla and V.S. were called. The brothers drove for a block away and picked up V.S. and Bonilla. J.F. wanted to put more quarters in at the laundromat before they went out to eat, so he headed back to the mobile home park. When they got back to the mobile home park, J.F. saw A.C. again as they pulled into the entrance of the mobile home park. A.C. was in the driveway holding a "pretty long" stick or pipe. A.C. ran toward J.F.'s car as J.F. was about to pull out into the street, and hit the left rear side of the car with the long stick. J.F. pulled into the middle turn lane and stopped, because he wanted to find out who A.C. was. J.F. said he wanted to ask A.C. what his problem was.
Then J.F. heard his right rear door open. Bonilla got out of the car. A.C. was still standing at the entrance to the mobile home park. J.F. heard B.F. say, "No," and saw Bonilla running across the street. A.C. ran too, and J.F. heard four gunshots.
There was a car in the driveway about to exit. It was between Bonilla and A.C. J.F. made a U-turn, Bonilla returned to the car, got in, and said, "I got him, I got him." J.F. drove away. While they were driving on Sullivan Street, a police car made a U-turn and got behind J.F.'s car. It followed them to a parking lot at the shopping center on First Street and Harbor Boulevard, and everyone got out of the car. The officer asked J.F. if he had a driver's license. Once they were all placed under arrest, the police brought people by the location. J.F. remembers sitting in a police car, handcuffed, being taken out of the police car and told to stand in front of another car.
J.F. believes Bonilla associated with the Middleside gang, based on Bonilla's wearing of the gang's colors (gray & black) and his having made derogatory comments about other gangs.
When J.F. was interrogated by police, he initially denied any knowledge of the shooting. After about 20 minutes, however, he "came clean" and told the police Bonilla committed the shooting. He said a male hit his car, he stopped in the middle of the road, and Bonilla got out of the car, walked up to the male and shot him.
The Police Respond
When officers responded to the mobile home park, they found blood splatters on the front end of J.G.'s car and blood drops on the ground. Police also located a wooden stick with a screw sticking out of one of the ends.
Gallardo described Bonilla as five feet eight inches tall, 130 pounds, with brown hair and eyes. B.F., J.F.'s brother, is also five feet eight inches tall. He weighs 145 pounds and has dark hair and brown eyes
Police searched J.F.'s car and found a number of items. Inside a sock in the rear of the vehicle was a .38-caliber revolver. Inside a passenger door pocket, police found a small black plastic bag containing four expended .38-caliber shell casings. A speed loader and six empty .38-caliber shell casings were found in the glove box. A .38-caliber shell was found inside the center console. DNA samples were obtained from the revolver, but the results could not be used for comparison because it contained the DNA from multiple contributors. No gunshot residue tests were performed on any of the five suspects.
The police found A.C. at a hospital. He had wounds to his right elbow, right side of his torso, upper thigh, and pelvic region.
Gang Evidence
Santa Ana Detective Greg Beaumarchais testified as a gang expert. He said Middleside has been an active gang since the 1970's and in January 2015, it had 50 documented members. Beaumarchais was aware of at least five members being convicted of gang-related offenses. The gang claims territory, has symbols, hand signs, rivals, allies, and its primary activities include possession of firearms by prohibited persons. Beaumarchais reviewed the change of plea forms of B.F., G.F., and V.S. He found it significant that B.F. and G.F. each admitted to being Middleside gang members in their respective guilty plea forms. He opined B.F. and G.F. are both active members of the gang. He further opined Middleside is a criminal street gang.
Beaumarchais conducted a background check on Bonilla. Although he has not had any prior contact with Bonilla, he reviewed prior police contacts, including police reports, and a step-notice. The location where Bonilla was contacted and the people he was contacted with were significant to Beaumarchais. Beaumarchais also looked at Bonilla's Facebook page. It contained a photograph of Bonilla making an "M" sign with his hand. It also contained a post concerning a well-respected Middleside gang member who had been killed. The post referred to the gang member by his moniker, rather than by name.
Beaumarchais also considered Bonilla's tattoos. On his right wrist and right shin are the initials for Middleside, "MS." In Beaumarchais's opinion, Bonilla was an active participant in Middleside on the date of the shooting. In response to a hypothetical question based on evidence from the trial, Beaumarchais stated the shooter's action was committed for the benefit of the Middleside gang. He said that if an individual hit up a Middleside gang member and hit the car with a stick in which Middleside gang members were riding, a Middleside gang member shooting the individual in retaliation for the disrespect would be a "proper violent response."
Lastly, Beaumarchais testified that if a gang member possesses a firearm, the firearm belongs to the gang. Thus, it can be passed around "very quickly," and there would be DNA from multiple members on the gun. The Plea Agreements of B.F., G.F., and V.S.
The plea agreements of B.F., G.F., and V.S., were admitted into evidence. All three pled guilty to attempted murder and actively participating in a criminal street gang. The factual bases for the guilty pleas were the same, although not identical. Each admitted aiding and abetting the attempted murder of "John Doe" by fellow gang members with the specific intent to kill him. Each admitted the attempted murder was for the benefit of the Middleside criminal street gang and that Bonilla was an active participant in the Middleside gang. The evidence was admitted without objection.
Defense
The defense introduced J.F.'s and L.C.'s statements to police. Detective Elias Martinez of the Santa Ana Police Department testified to interviewing L.C. at the mobile home park after the shooting. L.C. said he was in the car with J.G. when he saw four juveniles walking outside the mobile home park. As their car approached the exit, L.C. saw a gray car "kind of" parked in the center lane of the street. He saw a male come from the area of the parked gray car and then heard three shots. J.G., L.C., and the children in their car all put their heads down. A few seconds later, L.C. saw A.C. running toward their car and attempt to get in. He also saw the male who came from the area of the gray car point a gun in their direction. L.C. told J.G. to drive away and she did.
Martinez said L.C. did not tell him that he had made eye contact with the shooter or that he signaled to the shooter the presence of the children in the car. Neither did he say A.C. asked them to help him during the incident.
Additionally, the defense introduced J.F.'s statement to the police. In the beginning of the interrogation, J.F. denied knowing about the shooting or any of the ammunition found in his car. Later, he said Bonilla had been sitting behind G.F., who was seated in the right front passenger seat. He said he has known Bonilla for a year or two "because of [B.F.] and [G.F.]." Bonilla and J.F.'s brothers "all hang out."
J.F. denied knowing A.C. was going to be shot. He said Bonilla jumped out of the car and chased A.C., who had run at J.F.'s car and hit it with something "like a crowbar." After the shooting, Bonilla returned to the car and told J.F., "Drive, drive, drive."
DISCUSSION
Ineffective Assistance of Counsel
Bonilla first argues his convictions must be reversed because his counsel rendered ineffective assistance. Without objection, the prosecution introduced into evidence the guilty pleas of three of the four other defendants who were in J.F.'s car at the time of the shooting and who did not testify at the trial. According to Bonilla, his counsel's failure to object to the hearsay statements of B.F., G.F., and V.S. contained in their plea agreements resulted in damning evidence of his guilt, in violation of his right of confrontation.
A criminal defendant has a federal and state constitutional right to the effective assistance of counsel. (U.S. Const., 6th & 14 Amends.; Cal. Const., art. I, § 15.) The requirements to prevail on a state or federal claim of ineffective assistance of counsel are the same. (Strickland v. Washington (1984) 466 U.S. 668, 687-694; People v. Ceja (1994) 26 Cal.App.4th 78, 87-88.) "To establish ineffective assistance of counsel, [appellant] must demonstrate that (1) counsel's representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation subjected the petitioner to prejudice, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the petitioner. [Citations.]" (In re Wilson (1992) 3 Cal.4th 945, 950, citing Strickland v. Washington, at p. 687.)
An appellant must establish counsel's ineffectiveness by a preponderance of the evidence in order to prevail on appeal. (People v. Ledesma (1987) 43 Cal.3d 171, 218.) An ineffective assistance claim based on failure to object to inadmissible evidence presents an additional consideration. "Whether to object to inadmissible evidence is a tactical decision" (People v. Hayes (1990) 52 Cal.3d 577, 621), and we defer to counsel's reasonable tactical decisions. (People v. Hinton (2006) 37 Cal.4th 839, 876.)
"'[W]e accord great deference to counsel's tactical decisions' [citation], and we have explained that 'courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight' [citation]. 'Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts.'" (People v. Weaver (2001) 26 Cal.4th 876, 925-926.) Consequently, "'"[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," the claim on appeal must be rejected.' [Citations.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding." (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
"[C]ompetent counsel may often choose to forgo even a valid objection. '[I]n the heat of a trial, defense counsel is best able to determine proper tactics in the light of the jury's apparent reaction to the proceedings. The choice of when to object is inherently a matter of trial tactics not ordinarily reviewable on appeal.' [Citation.]" (People v. Riel (2000) 22 Cal.4th 1153, 1197.) However, if there could have been no valid reason for failing to object, an appellate court may entertain and determine the merits of an appellant's ineffective assistance of counsel claim without providing counsel an opportunity to state whether the decision was tactical. (People v. Nation (1980) 26 Cal.3d 169, 179.)
The appellate record herein does not reveal defense counsel's thinking process in deciding not to object to the guilty pleas of the three former codefendants who did not testify and we cannot say as a matter of law that no competent attorney would have failed to object to that evidence. We can readily imagine a situation where competent counsel would rather have the guilty pleas entered into evidence, instead of having the prosecutor present the live testimony of the former codefendants. As we do not know whether defense counsel's decision was the result of a reasonable tactical decision or not, we cannot determine whether counsel's failure to object rendered his performance deficient. Thus, any claim of ineffective assistance of counsel in this matter is more appropriately litigated in a separate habeas corpus proceeding, not in this appeal.
Jury Instruction Issue
The jury was instructed on the issue of eyewitness identification pursuant to CALCRIM No. 315. That instruction sets forth a number of factors the jury should consider in determining whether to give credence to an eyewitness identification, including: "How certain was the witness when he or she made an identification?" Bonilla maintains certainty does not correlate with an accurate identification having been made and the court erred in so instructing the jury.
The Attorney General asserts Bonilla forfeited this issue by failing to object to the instruction or request a modification. (See People v. Sanchez (2016) 63 Cal.4th 411, 461 [forfeiture found where the defendant failed to request a modification or object to the certainty factor in CALJIC No. 2.92, the precursor to CALCRIM No. 315].) Anticipating that argument, Bonilla claims his counsel was ineffective for failing to preserve the issue. We need not address these forfeiture and ineffective assistance claims because Bonilla's instructional argument fails on the merits.
Our Supreme Court has held instructing the jury to consider a witness's certainty of their identification is proper. (People v. Johnson (1992) 3 Cal.4th 1183, 1232; People v. Sanchez, supra, 63 Cal.4th at p. 462.) Although the issue is presently pending in the California Supreme Court in People v. Lemcke, review granted October 10, 2018, S250108, we are still bound by the high court's decisions in Johnson and Sanchez, which ruled against Bonilla's position on the certainty instruction. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we find the trial court did not err in instructing the jury using CALCRIM No. 315.
Cumulative Error
Bonilla next argues the cumulative effect of his trial attorney failing to object to the admission of the guilty pleas of his former codefendants and the error in instructing the jury pursuant to CALCRIM No. 315 resulted in prejudice and require reversal. "'[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.'" (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) However, because we do not decide the ineffective assistance of counsel claim in connection with the admission into evidence of the codefendants' guilty pleas and we find no error occurred in instructing the jury, there is no error to cumulate. (People v. Reed (2018) 4 Cal.5th 989, 1018.)
Section 654 Error on Count 3
Bonilla argues the trial court erred in failing to stay pursuant to section 654 the two-year concurrent sentence it imposed on count 3, the conviction for actively participating in a criminal street gang (§ 186.22, subd. (a).) The Attorney General concedes the error and we accept that concession.
Section 654 provides, in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other." (§ 654, subd. (a).) This section does not prohibit multiple convictions (People v. Pearson (1986) 42 Cal.3d 351, 359); it prohibits multiple punishments based on the same act (People v. Siko (1988) 45 Cal.3d 820, 823).
Imposition of a concurrent sentence, such as was imposed below, is multiple punishment for purposes of section 654. (People v. Pearson, supra, 42 Cal.3d at p. 360.) To avoid multiple punishment when section 654 applies, the court should impose sentence on the count carrying the longest potential sentence (here the attempted murder charge), and then impose and stay the sentence on the count to which section 654 applies, pending successful completion of the sentence imposed and not stayed. (Pearson, at p. 360.)
The trial court in People v. Mesa (2012) 54 Cal.4th 191, 195-196 (Mesa), imposed sentences on the defendant for assault with a firearm, possession of a firearm by a felon, and actively participating in a criminal street gang. Each conviction was based on the same act. (Id. at pp. 193-194.) Our Supreme Court found the trial court erred in failing to stay the sentence imposed on the conviction for actively participating in a criminal street gang pursuant to section 654. (Id. at p. 193.) The pertinent facts in the present case are indistinguishable from those in Mesa. In Mesa, the defendant was sentenced on an assault with a firearm that also served as the basis for his conviction for actively participating in a criminal street gang, for which the court also sentenced the defendant.
Here, Bonilla was convicted of three felonies, including active participation in a criminal street gang. They all arose out of the act of Bonilla chasing and shooting A.C. The trial court imposed an aggregate term of 32 years to life on the attempted murder and attached firearm enhancements and imposed a two-year concurrent term on count 3, the conviction of active participation in a criminal street gang. But the sentence on the attempted murder, like the assault charge in Mesa, served as the basis of his conviction for actively participating in a criminal street gang. It follows the trial court erred in failing to stay the sentence imposed on count 3 pursuant to section 654.
We will order the sentence on count 3 to be stayed pursuant to section 654 pending successful completion of the sentence imposed on count 1, and then permanently stayed.
Amendment of the Abstract
Lastly, after sentencing Bonilla to an aggregate term of 32 years to life on count 1 (attempted murder) with its attendant firearm enhancement, the trial court imposed a concurrent three-year midterm sentence on count 2 (assault with a firearm) and ordered it stayed pursuant to section 654. The abstract of judgment, however, fails to reflect the stay. Because the trial court's oral pronouncement prevails over a contrary abstract of judgment (People v. Mitchell (2001) 26 Cal.4th 181, 185-186), the abstract must be corrected to bring it in compliance with the court's oral pronouncement. The Attorney General agrees. Therefore, we will order the abstract of judgment corrected to show the sentence on count 2 is stayed pursuant to section 654.
DISPOSITION
The sentence on count three is ordered stayed pursuant to section 654 pending successful completion of the sentence on count 1, and then permanently stayed. The clerk of the superior court is directed to correct the abstract of judgement to reflect the sentence on counts 2 and 3 were stayed pursuant to section 654, and forward a copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
THOMPSON, J. WE CONCUR: ARONSON, ACTING P. J. GOETHALS, J.