Opinion
F052312.
6-6-2008
THE PEOPLE, Plaintiff and Respondent, v. ADRIAN BRISENO, Defendant and Appellant.
Joan Isserlis, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
INTRODUCTION
On December 27, 2004, appellant Adrian Briseno shot to death Roberto Torres and wounded Robertos brother, Luis. Appellant was convicted after jury trial of first degree murder, attempted first degree murder and assault with a firearm. The jury found the following special allegations to be true: (1) appellant committed the murder while being a member of, and to further the activities of, a criminal street gang; (2) appellant personally used and discharged a handgun during the commission of the murder and attempted murder, causing death and great bodily injury; and (3) appellant committed the murder, attempted murder and assault to benefit a criminal street gang. (Pen. Code, §§ 187, subd. (a); 664/187, subd. (a); 245, subd. (a)(2); 190.2, subd. (a)(22); 12022.53, subds. (b)-(d); 12022.5, subd. (a)(1); 186.22, subd. (b)(1).) A term of life imprisonment without the possibility of parole plus 25 years to life imprisonment was imposed for the murder (count 1); a consecutive term of life imprisonment with the possibility of parole plus 25 years to life imprisonment was imposed for the attempted murder (count 2). Additional prison terms for the assault and the remaining enhancements were imposed and stayed.
Solely to enhance readability, some individuals will be referenced by their first names. No disrespect is intended or implied.
Unless otherwise specified, all statutory references are to the Penal Code.
Appellant contends that the judgment must be reversed because of prosecutorial misconduct, improperly admitted evidence, failure to instruct sua sponte on imperfect defense of another and associated ineffective assistance of counsel. None of these arguments are persuasive. Also, appellant argues the sentence must be modified. We have determined that modification of the sentence imposed on counts 1 and 2 is necessary. On count 1, the 10-year term that was imposed and stayed for the section 186.22, subdivision (b)(1), enhancement and the 10-year term that was imposed and stayed for the section 12022.5, subdivision (a), enhancement must be stricken. On count 2, the 10-year term that was imposed and stayed for the section 12022.5, subdivision (a), enhancement must be stricken. As modified, we will affirm.
FACTS
I. The Shooting
Jaime Maciel testified that on the evening of December 27, 2004, he left a party and walked to the nearby M & M Market (the market) with appellant, Francisco Espejo and Jose Mendoza. At that time, both appellant and Jaime were Norteno gang members. Jaime saw two young men, identified at trial as Roberto and Luis, standing outside the market, pumping gasoline into a car. A woman holding a baby was standing outside the car and there appeared to be someone sitting in the cars back seat. Jaime knew that Luis and Roberto were Sureno gang members. He recognized Luis, because they had spent time together in a juvenile detention facility. Jaime, appellant, Francisco and Jose went into the market and purchased some beer. As they were leaving the market, they walked past Roberto and Luis. Either Luis or Roberto said something to the effect of, "What are you looking at?" Luis behaved as if he wanted to fight by approaching Jaime and appellant and saying things like "F-U." Meanwhile, Francisco and Jose kept on walking, stopping at a corner near a telephone booth. Appellant pulled out a handgun and pointed it at Roberto. Roberto apologized to appellant and said that he "didnt mean to come at [appellant] sideways." Roberto said something about being with his family and asked appellant not to shoot. The woman said something like, "Please dont. I got my kid." Jaime repeatedly said to appellant, "Dont do it," because Roberto had his family present. Luis said to appellant that he knew Jaime. Appellant asked Jaime, "Do you know this fool?" Jaime replied, "No, I dont know this guy." Jaime denied knowing Luis because he was frightened and did not want appellant "to look at me like a wrong way." Appellant fired the gun at Roberto and Roberto fell to the ground. Jaime ran away. Jaime heard several more gunshots as he ran. Jaime never saw Roberto or Luis with a weapon. Jaime ran a few blocks to a residence located on C Street in which Ralph Salinas lived (Ralphs house). Francisco and Jose were already there. Appellant arrived a few minutes later. Appellant said to Jaime, "We dont know nothing. We didnt see nothing. We dont know." Jaime said, "I dont know nothing." Also, Jaime said, "Im with you, dude." Appellant told Jaime "that he went back and shot Roberto Torres again." Jaime said, "All right. Thats cool." Jaime remained at Ralphs house for about five minutes and then he telephoned his mother, who came and picked up Francisco, Jose and him. Appellant remained at Ralphs house.
It was stipulated that appellant was an active member of a criminal street gang on the date of the charged crimes and that the charged crimes were committed to benefit such a gang. A gang expert, Madera Police Detective Jason Dilbeck, testified that VNSM is a subset of the Nortenos with about 40 members. The Norteno and Sureno gangs are at war with each other and have been so for a long time.
Ralph Salinas, Yiliana Martinez and Valerie Salinas all live at this residence. To enhance readability, it will be referred to as Ralphs house.
Jaime testified that the shooting caused him to decide he wanted to give up the gang lifestyle. However, he continued to carry guns and associate with Nortenos. Almost a year after the shooting he was in a vehicle with other Nortenos and the police found a rifle on the vehicles rear passenger seat. Jaime and the other people in the car pled guilty to felony possession of a firearm to benefit a gang. Jaime did not receive any special treatment.
Luis testified that in December 2004 he was a Sureno gang member and Roberto was a former Sureno gang member. Luis and Roberto were at the market buying gasoline for Robertos car when a group of five or six males arrived on foot. Robertos wife and child and Luiss girlfriend were in the car. One of the males, who Luis identified at trial as appellant, went inside the market. Appellant exited the market and the group of males began walking as if they were leaving the area. Appellant looked toward the car and repeatedly said, "Whats up, scrap?" Although the use of the word "scrap" is a disrespectful term toward Sureno gang members, Luis pretended he did not hear the remark. Appellant repeated his question and put his hand underneath his coat. Appellant approached the front of the car. Luis said, "Whats up?" Luis took a few steps forward toward appellant because he thought that his family was being threatened. Appellant pulled out a gun. Luis surrendered. Luis said to appellant, "You win," and "We are with our family." A male, who was stipulated at trial to be Jaime, approached appellant. Jaime said, "Hey, lets go. Lets go." Luis recognized Jaime and asked him to tell appellant, "to calm down. I know you." Appellant asked Jaime if he knew Luis; Jaime denied knowing him. Appellant said, "[Y]ou scraps always disrespect me when Im with my mom." Appellant told the group of males he had arrived with to leave. Jaime left appellant and joined the rest of the males, who were standing by a pay telephone. Thinking that appellant also was leaving, Luis resumed pumping gas and Roberto walked to the drivers door of the car. Appellant started shooting. Luis saw Roberto fall to the ground. Luis ducked and looked at appellant. Appellant shot Luis in his left thigh. Luis started running. Appellant shot him again in the left thigh and then shot him in the right elbow. Luis fell, got up and ran toward the market. The markets front glass door shattered. Luis threw himself onto the ground and crawled into the market. Luis heard a total of seven or eight gunshots.
Rachel Rodriguez is Luiss girlfriend. Rachel testified that she was sitting in the back seat of Robertos car at the market when she saw a group of about six males arrive at the market. Roberto stood by the trunk of the car, which was open. Luis went to the passenger door, near the gas tank. A male, who Rachel identified at trial as appellant, and a male companion approached the front of Robertos car. Appellant repeatedly said something like, "Whats up? How are you, scrap?" The other males in the group were standing by a pay telephone near the market. Luis said something like, "Whats up," and took a few steps toward appellant. Rachel saw that appellant was holding something in his right hand. Rachel told Luis, "I think he has something." Robertos girlfriend, Fabiola Daza, said to appellant something like, "We have our family. I have my son. Just leave us." Luis said, "You win. You win." Roberto may have said that he did not want any problems. Luis said to appellants companion, "You know me." Appellant asked the companion if this was true; the companion responded negatively. The companion twice said to appellant, "Lets go." Rachel saw something in appellants hand that looked like a gun. Appellant waved his hand back and forth. Rachel heard a gunshot and ducked. When she looked up, she saw appellant standing near the place where Roberto had been standing. Appellant was pointing a gun toward the market. Rachel saw Luis running toward the market and saw the markets glass door shatter. Rachel got out of the car and saw Roberto on the ground. Appellant walked to a position north of Robertos head and pointed the gun at Roberto. Rachel assumed that appellant fired the gun at Roberto, but she did not remember hearing a gunshot. She went into the market to help Luis. She and Luis exited the store to help Roberto, who was lying on the ground.
Fabiola testified that she was in the back seat of the car with her child and Rachel. She saw five or six males arrive at the market. Roberto and Luis exchanged eye contact with the group of males. Luis said, "What are you guys looking at?" One of the males, who Fabiola identified at trial as appellant, said, "What?" Luis replied, "What?" Luis and appellant argued. Fabiola got out of the car and told Roberto not to start anything because their baby was present. Roberto replied, "I know." Roberto told appellant that his family was present and he did not want any trouble. Appellant turned as if to leave, then turned back toward Roberto and said something about having been disrespected when his family was present. Appellant put his hand inside his jacket and told the group of males to leave. Everyone left but one male companion, who repeatedly urged appellant to go. Appellant replied, "No. Just leave." Luis said to appellants companion that he knew him. Appellant asked the companion if he knew "these fools." The companion put his head down and replied that he did not. Appellant told the companion to leave and said that he would catch up. Roberto began moving. Fabiola saw a gun in appellants hand and heard a gunshot. She ducked and saw Roberto duck. She heard a second gunshot and saw Roberto fall to the ground. Fabiola testified that she saw appellant shoot Roberto. Fabiola heard a third gunshot and ducked, covering her baby. She looked up and saw appellant shooting at Luis, who was running toward the market. Then she saw appellant run away down B Street.
It was stipulated the markets employees heard gunshots and ducked. As a result, they did not observe any of the parties and could not identify anyone involved in the incident.
Jaimes mother, Carol Armijo, testified that she picked up Jaime, Jose and Francisco from Ralphs house shortly after 10:00 p.m. that evening.
Yiliana Martinez testified that she drove by the market on the evening of the shooting. Valerie Salinas was in the car with her. Yiliana saw police cars and a bunch of people at the market. She drove home. When she arrived, Jaime and appellant were in the front yard; other people were inside the house. Jaime, Jose and Francisco left in a white car driven by Jaimes mother. Appellant asked Yiliana to drive him home. During the drive, appellant asked her what happened at the market. After she told him what she saw, he became nervous and quieter than normal.
Valerie testified that she and Yiliana drove by the market and then drove home. She did not recall who was at Ralphs house when they arrived. She was confused when she told a police detective that appellant, Jaime, Jose and Francisco were at Ralphs house when she arrived. Madera Police Detective David Herspring testified that he interviewed Valerie. She told him that Yiliana and she drove by the market after the shooting and then drove home, where they found appellant, Jaime, Francisco and Jose.
II. The Investigation
Madera Police Officer Daniel Foss was dispatched to the market at approximately 8:10 p.m. Upon arrival, he found Roberto on the ground near a gas pump. Roberto did not have a pulse. Luis ran up and pleaded with Foss to help Roberto. Luis told Foss that he had been shot. Foss determined that Luis had an injury to his right elbow and left thigh. Foss took photographs of the crime scene. The markets glass front door was broken by a gunshot or gunshots. An ice cream cooler inside the store near the cash register had a bullet hole in it. A spent bullet was recovered from the cooler. Eight spent .40-caliber shell casings and some bullet fragments were recovered from the crime scene. Fresno Police Officer Michael Powell concluded from the groupings of the shell casings that the shooter fired from two different locations.
An autopsy was performed on Roberto. He suffered three gunshot wounds. A fatal gunshot wound entered the right side of Robertos head. A potentially fatal gunshot wound entered Robertos left shoulder and penetrated a portion of his left lung. A gunshot wound grazed Robertos upper back.
Luis was taken to the hospital and treated for gunshot wounds. While there, he was interviewed by a police officer. Luis told the officer that he heard appellant say, "VNSM," which he knew was a reference to "a northern gang." Also, Luis told the officer that the shooter had a tattoo on the left side of his neck. Appellant has a tattoo on the right side of his neck.
Detective Herspring was designated as the lead investigator. He opined that, based on the crime scene diagram and the location of the spent shell casings, the shooter began shooting while at the front end of Robertos car and then moved around the passenger side of the vehicle toward the front of the market where he continued shooting toward the front of the store.
Luis, Rachel and Fabiola each identified Jaime from a photographic lineup as appellants companion.
On January 13, 2005, Detective Herspring interviewed Jaime. After initially lying to the detective, Jaime ultimately admitted being present and identified appellant as the shooter.
After appellants arrest, Luis, Rachel and Fabiola were shown a photographic lineup consisting of six photographs; appellants photograph was placed in the number two position (Peoples Exhibit 33). Jail staff created the photographic lineup; Herspring did not intentionally place appellants photograph in the number two position. Herspring did not tell them that appellant had been arrested for the shooting. Rachel identified appellants photograph as the shooter. Fabiola said appellants photograph "looks like" the shooter. Luis said that photographs in the number two and four positions "looked similar" to the shooter. Fabiola and Luis "subsequently qualified their response[s]." Although Herspring wanted to conduct a live lineup, it did not occur.
III. Defense Evidence
Appellants former girlfriend, Monica Yrigollen, testified that on the night of the shooting, appellant was with her at her house watching Monday Night Football on television. During the game, Monica left the house to go to the store and drove past the market. Monica saw two police cars, an ambulance and a small crowd as she drove by. A friend named "Leticia" accompanied Monica to the store. Monica returned to the house and told appellant that "[s]omething had happened" at the market.
It was stipulated that on the evening of the shooting, there was a Monday night football game between the St. Louis Rams and the Philadelphia Eagles starting at 6:00 p.m. and ending sometime after 9:00.
William Shomer testified as an expert on the reliability of eyewitness identification of strangers in criminal cases. He opined that the largest source of erroneous convictions in the United States is honest but mistaken witness identification. Shomer opined that an in-person identification of a suspect made while the suspect is in court, after the witness has already seen the suspects photograph in a lineup, is improperly suggestive and unreliable. Shomer opined that Peoples exhibit No. 33 is improperly suggestive because appellants photograph was placed in position number two and this is the position upon which an eyewitness will naturally focus. Also, appellants photo has a different color background than the other photographs and the size of his head in the photograph is smaller than all but one of the other heads in the lineup. Shomer opined that the photographic lineup was conducted improperly. Herspring held the photographs in such a manner that he was effectively pointing to appellants photograph. Also, the lineup should have been conducted by an officer who was not related to the case.
DISCUSSION
I. The alleged prosecutorial misconduct during Monicas cross-examination and closing argument was waived; in any event, the claimed misconduct was harmless beyond a reasonable doubt.
A. Facts
i. Cross-examination of Monica
During the prosecutors cross examination of Monica, he asked her if she spoke with Herspring in the past. Monica replied affirmatively. Then he asked if her mother spoke with Herspring. Monica replied, "I believe so." The prosecutor asked Monica if her "version of whether [appellant] was there that night and your mothers version were different, werent they?" Monica replied, "I dont know." The prosecutor asked, "You dont know. You never talked to your mother?" Monica answered, "Yeah, I talked to her about it." The prosecutor asked Monica if she "told Detective Herspring your mother was wrong, didnt you?" Monica replied, "About?" The prosecutor responded, "About Mr. Briseno not being at your house." Monica replied, "I dont recall." The prosecutor asked, "Where is your mother?" Defense counsel interposed his first objection to this line of question, saying, "Objection. Relevance." The objection was overruled. Monica answered that she did not know where her mother was right now. The prosecutor asked, "Have you seen her in the last month?" Monica answered, "Yeah, yeah." The prosecutor asked Monica if she was "aware that weve been trying to serve her for the last month?" Monica replied, "Yeah." The prosecutor asked, "And we havent been able to serve her, have we?" Monica replied, "Huh-uh." The prosecutor asked, "And you dont know where shes at?" Monica answered, "No, I dont." Monica testified that her mother is "not living at home" and Monica agreed with the prosecutor when he said, "She just kind of took off?"
Shortly thereafter, the prosecutor asked, "... after the 27th of December you discussed with your mom whether [appellant] was at the house, didnt you?" Monica replied, "I cant remember [the] exact conversation. I cant." The prosecutor asked, "Do you recall telling Detective Herspring that your mother was wrong when she said he wasnt there?" Defense counsel objected, stating that the question "[c]alls for hearsay." Before the court could rule on the objection, Monica answered the question, replying, "I cant remember." A bench discussion was held, after which the court overruled the hearsay objection. Defense counsel then objected on the ground that the question was asked and answered. This objection also was overruled. The prosecutor asked Monica, "Again, do you remember talking to Detective Herspring about the fact that your mother was mistaken with respect to Mr. Briseno not being at your house on that night?" Monica replied that she could not remember the conversation.
The prosecutor established that Monica told Herspring that she had seizures and that she could have told Herspring "that sometimes [she doesnt] remember things very well?" After examining Monica on other matters, he returned to her seizures and memory loss. In response to the prosecutors question what Monica meant when she said that she had memory losses, Monica explained, "Everybody forgets things. I cant remember everything that I do and all the times that I do them or whatever, but I dont have memory loss as in [it] just goes away right now and it will come back later. Its nothing like that." The prosecutor asked, "Well, you talked to Detective Herspring and when you talked to him you told him that you had memory losses and that sometimes you forget things and sometimes, you know, you are not — some of the things you think happened may not have happened. Do you remember telling him that?" Monica replied, "No."
Next, the prosecutor asked Monica "who saw you watching football with [appellant]?" Monica replied, "I dont know." Upon further questioning Monica stated that her mother could have been present but she did not know. The prosecutor asked, "But we dont know where your mom is and you havent asked her about it?" Monica replied, "I havent talked to her about it." The prosecutor asked, "Did you ask your mom whether or not she remembers [appellant] being at the house watching the football game that night?" Defense counsel objected, stating that the question "[c]alls for hearsay." The objection was overruled. Monica replied, "I dont remember ever talking to her about what she said right now."
The prosecutor asked Monica about driving to the store with Leticia during the time period when Monday Night Football was televised. The prosecutor asked, "And did you ever discuss this with Leticia?" After Monica stated that she "cant remember [the] exact conversation," the prosecutor asked, "Did you ever tell Leticia, oh, you know, Mr. Briseno got arrested for a shooting at M&M Market when he was at my house watching football?" Monica replied that she did not recall any particular conversations with Leticia. The prosecutor asked, "How could I reach Leticia?" Monica replied that she did not know. She had not talked to Leticia recently and "[Leticia] dont have the same phone number." The prosecutor asked, "Detective Herspring asked you the same question back then, didnt he? How could he find Leticia?" Monica replied, "I dont know. He could have." Upon further questioning, Monica said that she thought she gave Leticias telephone number to Herspring but she was not certain if she did so.
ii. Prosecutors closing argument
During the prosecutors closing argument, he made the following remarks:
"Now, the defense put on another witness, Monica Yrigollen, to testify that she was with the defendant the night of the killing, that for some reason she drove from the other side of town and went by the M&M Market and then came back and the defendant was there the whole time and they were watching Monday night football. You heard her testimony. You observed her reactions. You saw how she testified. You get to judge her credibility. But in judging that credibility, remember some of the statements she made. She admitted that her mother had a different story. And then when asked where her mother was she said, I dont know. I dont know where my own mother is. I dont know where this Leticia is. I dont know. I dont know. I cant recall....
"Shes hiding her mother. Shes hiding Leticia. People who can contradict her testimony. She says she doesnt know where they are."
Shortly thereafter, the prosecutor argued that the People "put [Yiliana] on second. Because that alibi doesnt hold water. And you know it."
B. The prosecutorial misconduct claims were waived.
Appellant argues that the prosecutor committed misconduct during cross-examination of Monica and during his closing argument. He argues that the prosecutor acted as an unsworn witness by asking Monica about statements her mother may have made to Herspring and by asserting during his closing argument that Monicas mother "had a different story" than Monica and that Monica is "hiding her mother." Appellant asserts that the prosecutor impermissibly smuggled hearsay evidence before the jury that was imbedded in his questions and his closing argument. He contends that the prosecutors actions resulted in a prejudicial infringement of his Sixth Amendment confrontation right and his Fourteenth Amendment due process right. As will be explained, we agree with respondent that defense counsel failed to preserve the prosecutorial misconduct claim for appellate review. In any event, the alleged misconduct and claimed resultant infringement of appellants confrontation right is harmless beyond a reasonable doubt.
Our conclusion that the asserted misconduct and claimed resultant constitutional violation was harmless beyond a reasonable doubt obviates any need to determine whether the trial court erred in overruling defense counsels hearsay objections to two questions posed by the prosecutor during his cross-examination of Monica.
A prosecutor violates the federal Constitution when he or she engaged in a pattern of misconduct so egregious that it infects the trial with such unfairness that it makes the conviction a denial of due process. (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill).) Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves "`"`"the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."" [Citation.] [Citation.]" (Ibid.) To preserve a claim of prosecutorial misconduct, a defendant must timely object on this ground and request a curative instruction. This requirement is excused only when an objection would have been futile or the claimed misconduct could not have been cured by timely judicial admonishment. (Id. at p. 820.)
In this case, defense counsel did not object on any ground to the portion of the prosecutors argument that is the subject of contention. Also, defense counsel did not object on the ground of prosecutorial misconduct at any time during Monicas testimony. Although defense counsel asserted two hearsay objections to questions the prosecutor posed during his cross-examination of Monica about statements her mother may have made to Herspring, defense counsel did not object to the form or phrasing of the prosecutors questions on the ground that they were inherently improper because the questions conveyed hearsay information to the jury. Defense counsel did not assert that the prosecutor improperly was acting as an unsworn witness by asking questions containing imbedded hearsay. Defense counsel only asserted in each instance that the challenged questions "[c]alls for hearsay." This is insufficient to preserve the claim of prosecutorial misconduct that is asserted on appeal.
Furthermore, the alleged misconduct could have been cured if it was timely called to the judges attention during trial. If defense counsel raised the alleged misconduct during cross-examination of Monica and pointed out that in his opinion the prosecutor was acting as an unsworn witness, the judge could have instructed the jury that the prosecutors questions do not constitute evidence. Alternatively, it could have ordered the prosecutor to rephrase the challenged questions. If defense counsel had objected to the allegedly improper closing argument, the court could have instructed the jury that it may derive reasonable inferences from the evidence but such inferences must be based solely on trial evidence and not on questions posed by the prosecutor during trial.
Appellants reliance on People v. Boyer (2006) 38 Cal.4th 412 (Boyer) and People v. Pardita (2005) 37 Cal.4th 428 (Pardita) to support his assertion that the claim was preserved for review is misplaced. Both cases are inopposite. In Boyer and Pardita, our high court concluded that if appellant makes an objection to admission of evidence on the basis of state law and the objection is overruled, appellant may argue that the trial courts act or omission also had the additional legal consequence of violating the Constitution, provided that the new arguments do not invoke facts or legal standards different from those the trial court applied. (Boyer, supra, 38 Cal.4th at p. 441, fn. 17; Pardita, supra, 37 Cal.4th at p. 436.) The high court did not conclude in either of these cases that an appellant may present for the first time on appeal entirely new claims of error or new legal theories requiring a different mode of analysis than those theories presented to the trial court. It did not broaden the general rule requiring a timely and specific trial objection. (People v. Chaney (2007) 148 Cal.App.4th 772, 776-780.)
For these reasons, we conclude appellants claim that the prosecutor engaged in a pattern of misconduct whereby he acted as an unsworn witness was waived.
C. The asserted misconduct and alleged resulting infringement of appellants constitutional rights is harmless beyond a reasonable doubt.
Furthermore, we reject appellants claim of prosecutorial misconduct and resultant constitutional violation for lack of prejudice, even when the alleged misconduct is assessed under the stringent harmless beyond a reasonable doubt test enunciated in Chapman v. California (1967) 386 U.S. 18. We agree with respondents characterization of the evidence proving appellants guilt as overwhelming. Four eyewitnesses (Jaime, Luis, Rachel and Fabiola) testified that they saw appellant pull out a gun and shoot at Roberto and Luis. One of the eyewitnesses, Jaime, was a member of the same gang to which appellant belonged. There is no danger of cross-racial misidentification. The ballistics evidence found at the crime scene was consistent with the testimony of the eyewitnesses. Jaimes testimony that appellant went to Ralphs house after the shooting was corroborated by other witnesses. In contrast, Monicas alibi testimony was uncorroborated and she was not a convincing witness. Also, the evidentiary portion of the trial lasted six days and the jurys deliberations lasted less than two hours. This is another indicator of the strength of the prosecutions case. (People v. Robertson (1982) 33 Cal.3d 21, 36.) It is not reasonably possible that the jury would have returned a more favorable verdict in the absence of the claimed prosecutorial misconduct; accordingly, we find the claimed misconduct to be harmless beyond a reasonable doubt.
II. Refusal to exclude Valeries testimony was not an abuse of discretion and the associated prosecutorial misconduct claim was waived; the challenge to the courts handling of Valeries assertion of the privilege against self-incrimination was waived and the associated ineffective assistance claim fails for lack of prejudice.
A. Facts
At the conclusion of Luiss testimony, the prosecutor asked, "Valerie Salinas in the audience? Valerie Salinas." When Valerie replied affirmatively, she was called to the stand. Defense counsel objected and an unreported bench conference was held. At the outset of Valeries testimony she stated, "Just say one thing. I take the 5th. I dont have anything to say." The prosecutor replied, "You plead the 5th?" Valerie answered, "I have nothing to do with this court. Im just here to hear the trial and thats it." The prosecutor replied, "No. You are here to testify." She answered, "Why? I havent even been subpoenaed." The prosecutor replied, "You are here to testify." She asked, "Shouldnt I get subpoenaed first?" The prosecutor replied, "Do you want me to hand you a subpoena? I can do that." At this point, the court stated, "Miss Salinas, answer his question. Go ahead with your question."
Thereafter, Valerie testified as set forth in the statement of facts.
After Valerie was excused, a hearing was held outside the jurys presence. Defense counsel argued that Valeries testimony should be excluded because she was not included on the Peoples witness lists and witnesses were excluded from court. Defense counsel Michael Fitzgerald stated that defense counsel Craig Collins "indicated that [Valerie] was here on at least two days last week [and] that he saw her and spoke to her."
The prosecutor responded that Valerie was not on his final witness list because he was unable to serve her. He was planning to have Herspring serve Valerie in the afternoon and have her removed from the courtroom. However, he unexpectedly "ran out of witnesses for the moment. I was advised just prior to that that that [sic] was Valerie Salinas. I have never met Valerie Salinas. I did not know Valerie Salinas. Had I known it was Valerie Salinas, I would have made sure that she was not in the courtroom." The prosecutor explained, "The only reason I didnt keep her on my witness list was because I couldnt find her and I wasnt going to throw witnesses on there that I didnt have." The prosecutor continued, "And I was certainly not trying to pull a fast one on the Court or on counsel. It was just, I certainly didnt know, I honestly didnt have any clue as to what she was going to testify to other than what was in the report written by Detective Herspring."
The court ascertained from the prosecutor that discovery was provided to the defense concerning Hersprings pretrial interview with Valerie.
After defense counsel demonstrated that Valerie had not been on the Peoples initial witness list, the prosecutor acknowledged his error and agreed that Valerie had not been included in either the Peoples initial witness list or the Peoples final witness list. The prosecutor reiterated that he was "not trying to hide the ball here. Plus she didnt testify to anything thats of any real relevance here."
Defense counsel responded, "I would agree with that except other than I dont know if her whole attitude could have a negative effect on our case. I dont know which way it would go."
The prosecutor responded, "I have the same attitude."
The court commented that the prosecutors attitude toward Valerie "may hurt you with the jury ...." The court said, "... I dont know that [the prosecutor] made points with that behavior in front of the jury." The prosecutor agreed, "Im sure I didnt."
During the prosecutors examination of Valerie, the prosecutor said that she was a "[s]omewhat hostile" witness and said she was getting "cute." Also, he accused Valerie of lying when she testified that she could not remember what she told Herspring. The prosecutor concluded his examination by sarcastically thanking Valerie for being "very helpful." This last remark caused defense counsel to ask the court to preclude the prosecutor "from making comments to his own witness like that."
The court ruled as follows:
"All right. As to Miss Salinas, there was a motion to exclude witnesses. At that time she was not on the witness list. She has been in and out of the courtroom, but I dont know what days she was or was not here. There has been a representation [that] she was not here during Yiliana Martinezs testimony which was the only testimony that she could have listened to that is relevant to her, Miss Salinas, testimony. The defense did have discovery of her name and statements that she made in the case, although the defense did not have notice that she was a potential witness in terms of a witness list, but they did have her name and the statements she had made to law enforcement prior to trial.
"At this point she hasnt said anything one way or the other except that she remembers nothing because this case meant nothing to her, which is curious since if it means nothing to her why is she sitting here in the audience? Be that as it may, I dont see any prejudice to the defense case from her testifying and not having been on the witness list. So her testimony was allowed."
Next, defense counsel argued that Herspring should not be permitted to testify about Valeries prior statements to him because she was not on the Peoples witness lists. The court confirmed from defense counsel that the defense was provided with discovery on Hersprings interview with Valerie. Thereafter, it admitted evidence of Valeries prior statements to Herspring.
Herspring testified about his interview with Valerie as set forth in the statement of facts.
B. Admission of Valeries testimony was not an abuse of discretion and admission of this evidence did not infringe any of appellants constitutional rights.
Appellant argues that the trial courts decision to admit Valeries testimony constitutes an abuse of discretion. We disagree.
Penal Code section 1054.1, subdivision (a), requires the prosecutor to turn over to the defense the names and addresses of persons the prosecutor intends to call as trial witnesses. Subdivision (b) of Penal Code section 1054.5 provides that upon a showing that a party has not complied with section 1054.1, "a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure." However, subdivision (c) of section 1054.5 provides that "[t]he court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted." Preclusion sanctions are appropriate only for the most egregious discovery abuse; specifically, such sanctions should be reserved for those cases in which the record demonstrates a willful and deliberate violation that was motivated by the desire to obtain a tactical advantage at trial. (People v. Edwards (1993) 17 Cal.App.4th 1248, 1263.) This court previously held in People v. Gonzales (1994) 22 Cal.App.4th 1744 that prohibiting testimony of a witness is not an appropriate discovery sanction in a criminal case absent a showing of significant prejudice and willful conduct. (Id. at pp. 1758-1759.) The appellate court reviews a trial courts ruling on matters regarding discovery under an abuse of discretion standard. (People v. Lamb (2006) 136 Cal.App.4th 575, 581.)
Appellant argues the trial court abused its discretion by refusing to exclude Valeries testimony at trial. This contention is premised on the assertion that the omission of Valeries name from the witness lists was a deliberate and willful discovery violation that was motivated by an improper intent on the part of the prosecutor to obtain an unfair advantage at trial. We reject this argument because it is not supported by evidence presented to the trial court during the hearing when the contested ruling was made. The prosecutor explained to the court that he did not include Valeries name on the witness lists because he was unable to serve her. He did not intend to call her as a trial witness until it was brought to his attention that she was present in the courtroom watching some of the trial proceedings. Defense counsel did not dispute this explanation or indicate in any fashion that it disbelieved the prosecutor. The court accepted the undisputed representation of the prosecutor that did not intend to "hide the ball" or to "pull a fast one on the Court or on counsel."
Furthermore, the record does not show that appellant suffered any significant prejudice as a result of the failure to include Valeries name on the witness list. The trial court verified from defense counsel that the People provided discovery to the defense about Hersprings investigatory interview with Valerie. Defense counsel knew Valerie was in the courtroom and spoke with her prior to the time she was called as a witness. Therefore, we conclude the trial court did not abuse its discretion by failing to exclude Valeries testimony.
C. The prosecutorial misconduct claim arising from the failure to include Valeries name on the Peoples witness lists was waived.
Appellant argues the prosecutor engaged in misconduct by deliberately omitting Valeries name from the witness lists "willfully and for a tactical reason." Appellant asserts that the "omission was motivated by a desire to obtain a tactical advantage," because the prosecutor "did not want to prompt counsel to interview Salinas" or to uncover evidence that Herspring threatened Valerie with being charged as an accessory after the fact unless she told him that she saw appellant at her home on the night of the shooting. We reject this claim of prosecutorial misconduct because it was not asserted in the trial court.
As previously explained, to preserve a claim of prosecutorial misconduct, a defendant must timely object and request a curative instruction. Failure to object to the alleged prosecutorial misconduct is only excused where it would have been futile or the claimed misconduct could not have been cured by timely judicial admonishment. (Hill, supra, 17 Cal.4th at p. 820.) At no time during trial did defense counsel indicate in any manner that he disputed the prosecutors representation that the omission of Valeries name from the Peoples witness lists occurred as a result of his inability to serve Valerie. The prosecutor repeatedly stated that he was not "trying to pull a fast one on the Court" or to "hide the ball" from the court or defense counsel. Defense counsel did not contend that the omission was an intentional decision motivated by a desire to obtain a tactical advantage or otherwise question the prosecutors integrity or good faith. Asserting an objection on the ground of prosecutorial misconduct during trial would not have been futile and the claimed misconduct could have been cured. There were statutory sanctions available to the court and those sanctions were within the courts sound discretion. If an objection on the ground of prosecutorial misconduct had been asserted by defense counsel, the court could have investigated, made a factual finding, and fashioned an appropriate remedy if it concluded the prosecutor intentionally omitted Valeries name from the witness lists to obtain an unfair tactical advantage. Therefore, this prosecutorial misconduct claim was waived.
D. Appellant waived review of the trial courts handling of Valeries assertion of her privilege against self-incrimination; appellants related ineffective assistance claim fails for lack of prejudice.
Appellant argues that the trial court erred by failing to follow the procedure contained in Evidence Code section 404 after Valerie said, "I take the 5th." He contends the issue was not waived because counsel was given no real chance to object and because an objection would have been futile. Furthermore, if counsel did waive the issue, his representation was ineffective. Neither argument is convincing.
In People v. Seijas (2005) 36 Cal.4th 291 (Seijas), our Supreme Court determined that a party must specifically object to the trial courts resolution of a witnesss assertion of the privilege against self-protection or the claim is waived in subsequent appellate proceedings. (Id. at pp. 301-302.) Although the trial court in Seijas upheld the assertion of privilege, the chain of reasoning advanced in the opinion applies with equal force to cases in which the trial court rejects an assertion of privilege.
Here, defense counsel had ample opportunity to object when the trial court ordered Valerie to testify after she stated that she wanted to "take the 5th." The prosecutor and Valerie engaged in a brief dialogue after Valerie purported to "take the 5th" and before the court ordered her to testify. Defense counsel certainly had the opportunity to object at that point. Furthermore, there is no evidence that such an objection, if timely made, would have been futile. Previously, defense counsel objected to Valeries testimony based upon the prosecutors failure to include her on the witness list and this resulted in a bench conference and a subsequent hearing on the issue. There is nothing in the record indicating that if defense counsel had interposed an objection to Valeries testimony on the ground that validly asserted her protection against self-incrimination, the court would not have given it the same full consideration it gave to the objection that defense counsel did make. Accordingly, we conclude the issue was not preserved for appellate review.
We reject the associated ineffective of counsel claim for lack of prejudice. To prevail on the claim, appellant bears the burden of showing both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome. (People v. Gurule (2002) 28 Cal.4th 557, 610-611.) When an ineffective assistance claim can be resolved solely on the basis of lack of prejudice, it is unnecessary to determine whether counsels performance was objectively deficient. (In re Jackson (1992) 3 Cal.4th 578, 604.) It is not reasonably possible that exclusion of Valeries testimony and exclusion of Hersprings testimony of Valeries prior statements would have resulted in a more favorable verdict. This testimony was merely corroborative of, and cumulative to, Yilianas testimony. Valerie was not an eyewitness to the shooting and appellant did not make any incriminating statements to her. It is not probable that the jury would be prejudiced against appellant as a result of Valeries contemptuous manner. Even the prosecutor acknowledged that the aggressive way he conducted Valeries examination was likely to have hurt his case. Therefore, we conclude that the asserted deficient performance is harmless and reject the ineffective assistance claim on this basis.
III. Evidence concerning Jaimes fear of retaliation was relevant on the issue of his credibility; appellant waived hearsay and excessive prejudice challenges and the associated ineffective assistance claim fails; the court did not have a sua sponte duty to give a limiting instruction and the omission is harmless.
A. Facts
i. Trial testimony concerning possible retaliation against Jaime
Near the outset of Jaimes testimony, the prosecutor established without objection that Jaime was a Norteno gang member in 2004, that he was frightened to testify and that he was worried about his personal safety and the safety of his family. During cross-examination, defense counsel questioned Jaime about this testimony. Defense counsel asked Jaime whether he remembered telling Herspring that "you didnt care about your safety, you werent afraid of your safety, do you remember that?" Jaime replied, "No." Defense counsel asked, "If the detective were to testify that you had indicated you werent concerned about your safety, that would be incorrect then?" Jaime replied, "I cant — I dont know. I cant remember." Later, defense counsel asked, "the only reason why you are testifying against [appellant] is to avoid getting in trouble yourself, isnt that right?" Jaime answered, "No." Defense counsel asked why he was testifying and Jaime replied, "Because its just the right thing to do."
During redirect examination, the prosecutor asked, "Previously you talked to me and I asked you if you were afraid and you told me no, is that right?" Jaime answered, "Right." The prosecutor asked, "Whats changed?" Jaime replied, "Just all this process of getting it done just got me." The prosecutor asked, "Im sorry?" Jaime replied, "Just, I dont know, I want to get this over with." The prosecutor said, "Its scarier now than it was then?" Jaime answered, "Right." The prosecutor asked, "Its more real now?" Jaime answered, "Right." Then the prosecutor asked, "Have you heard rumors that people are out to get you?" Defense counsel objected on the grounds of relevance and speculation. The prosecutor responded that the question goes to state-of-mind. The objections were overruled. Jaime replied, "Yes." The prosecutor asked. "Do you believe those rumors?" Jaime replied, "Yeah." He asked, "That would make you scared now, wouldnt it?" Jaime answered, "Yeah." He asked, "You didnt hear those before, did you?" Jaime replied, "No."
During cross-examination of Herspring, defense counsel asked if he realized that Jaime lied when he said during interviews that he had enough of the gang lifestyle and he quit the Nortenos. Herspring replied, "I believe that hes trying very hard not to be in the gangs. Its just some of the people that he associates with happen to be family members or close friends that are." Herspring continued, "I also believe given what he has done as far as being a former Norteno or whether you would call it former or current Norteno to come and testify against another Norteno has put his life extremely at risk as well as potentially his familys life. I think hes taking a huge risk." Herspring denied effectively telling Jaime that he had the choice of going to prison as an accessory to murder or testifying and facing "a bullet in [the] head."
During redirect, the prosecutor elicited testimony from Herspring without objection that one of the reasons he believed Jaime was telling the truth when he identified appellant as the shooter was because Jaime was endangering himself and the safety of his family. Herspring also testified without objection that Jaime explained that he lied during an early interview and said that Deena gave him a ride home because "he didnt want to put his mother in any danger. He was afraid for her safety if she was identified as giving him a ride home and if she had to come to court."
During recross-examination defense counsel asked Herspring, "And also you testified on redirect that, well, Jaime Maciel is believable because essentially because hes stepping forward and putting his life in peril, am I correct?" Herspring replied, "Yes, sir, he is." Defense counsel asked whether Jaime put his life in jeopardy during the time he was a Norteno gang member and Herspring replied affirmatively. Defense counsel asked, "if it were to become known that Jaime Maciel is located at the scene of a murder of a ... former Sureno gang member and a current Sureno gang member, then his life and safety of he and his family would be in more jeopardy as well, am I correct?" Herspring replied, "Yes." Defense counsel asked, "Because [of] retaliation, right?" Herspring said, "Yes, sir." Defense counsel asked, "[A]nd also Jaime Maciel in the situation that he got himself in put his own freedom in jeopardy, am I correct?" Herspring said, "No, not ultimately." Defense counsel asked, "Because you pointed out that he could be charged with even accessory and go to prison?" Herspring answered, "If the elements to accessory to murder were met, but in my opinion they were not met." Defense counsel asked, "This was Mr. Maciels way out, wasnt it, this was his way out of a bind, wasnt it?" The prosecutors objection that the question called for a legal conclusion was sustained.
Detective Dilbeck testified during defense counsels cross-examination that a gang member who is present when a fellow gang member shoots a rival gang member might be subject to retaliation from the rival gang. However, he doubted that the Surenos would retaliate against Jaime because witnesses testified that he tried to stop appellant from carrying out the shooting. Yet, this same conduct could cause his fellow Nortenos to view Jaime as weak and sympathetic to Surenos. "There is quite a few things that could stem from that."
During redirect examination, the prosecutor asked Dilbeck, "What kind of danger is [Jaime] in from the Nortenos for having testified here?" Dilbeck replied, "Basically, hes looked at as a traitor and so there would be a green light for [Jaime], which would mean his name is in the hat to be violently assaulted or killed by either members of the Norteno[s] or members that had done some type of violation against the bonds that wanted to get back into the good graces of the Norteno[s]." Dilbeck testified, without objection, that he had personal knowledge "that there is a green light out on [Jaime]." The prosecutor asked Dilbeck, "So he had absolutely nothing to gain by testifying here is what you are saying, is that right?" Dilbeck agreed and explained that if Jaime had refused to testify, fellow Nortenos would have held him in higher respect because he refused to cooperate with law enforcement and demonstrated firm resolve to support his fellow gang members. To Dilbecks knowledge, Jaime was not provided anything by law enforcement as an inducement to testify in this case.
Defense counsel asked Dilbeck during recross if Jaime "testified, so now hes in danger of the Nortenos, is that correct?" Dilbeck replied,
"Yes. He was in danger all along if ... his identity [had] been realized as all along the Nortenos involved in this case knew that there was an informant, but prior to a short amount of time before the trial started the identity of that informant had been [kept] secret [from] them. So, therefore, [Jaime] not wanting to be fronted out as the snitch still stayed with hanging out with gang members, he still, he didnt want to be ousted as the snitch, so he still associated with gang members...."
Defense counsel asked if Jaime was in danger prior to the shooting because he "participated in gang activity knowing that what he did may very well subject him to danger, is that correct?" Dilbeck agreed. Defense counsel asked if Jaime could have been charged with lying to a peace officer. Dilbeck replied that this crime was a misdemeanor, and is "the least of [Jaimes] worries." Defense counsel asked if Jaime could have been charged as an accomplice to murder. Dilbeck said that in his opinion Jaime could not have been charged or convicted as an accomplice to murder because he tried to stop it from happening. Dilbeck does not "see anything there that [Jaime] would go to prison for."
ii. Closing Arguments relating to Jaimes fear of retaliation
During defense counsels closing argument he argued that Jaimes alleged fear of testifying was nonexistent or meaningless because he was still an active gang member who, on this basis alone, risked his life daily.
During the prosecutors rebuttal argument, he argued that the level of danger experienced by a person by virtue of gang membership is different than the level of danger a person faces as a result of testifying against a fellow gang member. Also, he argued that Jaimes willingness to testify against appellant despite this danger enhances his credibility as a witness.
B. Evidence concerning Jaimes fear of retaliation was relevant; hearsay and excessive prejudice claims were waived; the associated ineffective assistance claims fails.
Appellant contends admission of evidence that there was a "`green light" out for Nortenos to assault or kill Jaime was improper because this evidence "had no relevance and was simple hearsay." Furthermore, he contends this evidence should have been excluded as excessively prejudicial pursuant to Evidence Code section 352. Finally, he contends the jury should have been instructed sua sponte that evidence concerning the possibility of retaliation against Jaime was admissible solely for the limited purpose of evaluating Jaimes credibility.
We summarily reject appellants relevancy challenge to evidence concerning Jaimes fear of retaliation because the contested testimony was relevant to establish Jaimes state-of-mind and to assess his credibility. Evidence that a witness is afraid to testify is relevant and admissible on the issue of the witnesss credibility, a nonhearsay purpose. (People v. Navarette (2003) 30 Cal.4th 458, 507 (Navarette).)
Appellant argues that "[f]or the most part" the hearsay and Evidence Code section 352 issues were not waived because counsel interposed a relevancy and speculation objection during Jaimes testimony when the prosecutor asked Jaime if he heard rumors that people are out to get him. We disagree. It is a well established principle of jurisprudence that only points that were raised and ruled on in the trial court are considerable on appeal. (Evid. Code, § 353; People v. Clark (1993) 5 Cal.4th 950, 988, fn. 13.) To preserve an evidentiary issue for review, timely objection must have been interposed on the same ground during trial. (Navarette, supra, 30 Cal.4th at p. 458; People v. Kirkpatrick (1994) 7 Cal.4th 988, 1014-1015.) "Specificity is required both to enable the court to make an informed ruling on the motion or objection and to enable the party proffering the evidence to cure the defect in the evidence. [Citations.]" (People v. Mattson (1990) 50 Cal.3d 826, 854.) In this case, defense counsel did not object on the ground of hearsay or interpose an excessive prejudice objection pursuant to Evidence Code section 352. Defense counsel did not argue that admission of testimony on the subject of possible retaliation against Jaime infringed any of appellants constitutional rights. Defendant did not object on any ground to Dilbecks testimony that he had personal knowledge there was a "green light" on Jaime. Therefore, the hearsay and excessive prejudice claims were not preserved for appellate review.
Appellant summarily asserts in a single paragraph in his opening brief that if his hearsay or excessive prejudice arguments are deemed waived, this court "should consider" whether he received the effective assistance of counsel. Appellant did not mention this claim in his reply brief. We deem this contention to be undeveloped and reject it on this basis. (People v. Williams (1997) 16 Cal.4th 153, 206; People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19.) Furthermore, this issue is one that is properly pursued in a habeas proceeding. Defense counsel actively cross-examined witnesses on the topic of Jaimes fear of retaliation in order to disprove the assertion. Also, defense counsel raised the topic during closing argument, arguing that the alleged fear was nonexistent or meaningless because Jaime already exposed his family and himself to danger as a result of his decision to join the Nortenos. Based on the appellate record before us, we conclude that defense counsels failure to object on the grounds raised on appeal may have been the result of a conscious and reasonable tactical decision concerning proper treatment of evidence about Jaimes fear of retaliation. It does not appear that defense counsels performance in this area fell outside the range of reasonable competence. Therefore, the ineffective assistance claim fails on appeal. (People v. Pope (1979) 23 Cal.3d 412, 427.)
C. The court did not have a sua sponte duty to instruct on the limited admissibility of this evidence; in any event, the omission is harmless.
"Trial courts generally have no duty to instruct on the limited admissibility of evidence in the absence of a request. [Citation.]" (People v. Lang (1989) 49 Cal.3d 991, 1020.) Our Supreme Court has recognized a narrow exception for "`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. [Citation.]" (Ibid.) This is not an extraordinary case. Evidence about Jaimes fear of retaliation was briefly presented and did not involve an uncharged crime in which appellant was a participant. This evidence did not comprise a dominant part of the states case against appellant, nor was it especially prejudicial or of questionable relevance. Therefore, in the absence of a request, the trial court was not obligated to give a limiting instruction.
Furthermore, appellant was not prejudiced by the absence of a limiting instruction. No evidence was elicited indicating appellant personally wanted to retaliate against appellant or that he participated in the issuing of the "green light." Also, the prosecutor did not use the evidence concerning fear of retaliation for any improper purpose. He did not reference this evidence in his initial opening argument. It was defense counsel who raised the subject during his closing argument. In response, the prosecutor only argued that the fear of retaliation enhanced Jaimes credibility. Finally, it is not reasonably likely that the jury speculated on unmentioned issues such as the identity of the person who issued the "green light" and whether appellant knew this person. Therefore, we conclude it is not reasonably probable that the absence of a limiting instruction affected the verdict.
Appellant did not argue that failure to request a limiting instruction constitutes ineffective assistance of counsel. Such a claim would have failed on appeal. The decision whether to seek a limiting instruction is a tactical decision properly left to defense counsel, since defense counsel might conclude that the risk of a limiting instruction outweighed the questionable benefits such an instruction would provide. (People v. Maury (2003) 30 Cal.4th 342, 394.)
IV. Failure to instruct on the defense of imperfect defense of others is harmless.
The defense requested instruction on imperfect self-defense. Over the prosecutors objection, the trial court determined there was sufficient evidence to warrant instruction on this defense. Imperfect self-defense instructions were given in connection with both the murder and the attempted murder charges. Appellant contends the court erred by failing to instruct sua sponte on imperfect defense of another, to wit, Jaime. Assuming without deciding that the court had a sua sponte duty to instruct on imperfect defense of another, we find the omission to be harmless.
The trial court has a duty to instruct, sua sponte, on defenses that are supported by substantial evidence and are "not inconsistent with the defendants theory of the case." (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) In People v. Randle (2005) 35 Cal.4th 987 (Randle), our Supreme Court held that it was erroneous to refuse to instruct on imperfect defense of another. If broadly read, Randle implies that trial courts have a sua sponte duty to instruct on imperfect defense of another when the instruction is supported by the evidence.
In Randle, our Supreme Court declared that improper failure to instruct on imperfect defense of another is reviewable under the harmless error test articulated in People v. Watson (1956) 46 Cal.2d 818, 836. (Randle, supra, 35 Cal.4th at p. 1003; see also People v. Breverman (1998) 19 Cal.4th 142, 176.) In considering whether the instructional omission was prejudicial, we consider the totality of the jury charge. (People v. Guerra (2006) 37 Cal.4th 1067, 1136; People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) Here, the jury was correctly instructed on the applicable law of imperfect self-defense. The omitted instructions are merely a variant on imperfect self-defense, which was rejected by the jury. The evidence supporting a claim that appellant shot at Roberto and Luis to defend Jaime is weak. The record lacks convincing evidence showing that appellant fired at Roberto and Luis because he possessed an unreasonable belief that he needed to defend Jaime. Appellant did not testify or make any statements directly reflecting his state-of-mind. Jaime did not testify that he felt threatened by either Roberto or Luis. The circumstantial evidence from which appellant argues a jury reasonably could have concluded he fired in an unreasonable but honestly held belief that he needed to defend Jaime is not convincing. The evidence strongly supports the jurys guilty verdicts on counts 1 and 2. It is not reasonably probable that the jury would have accepted a claim of imperfect defense of another. Therefore, we find the instructional omission to be harmless.
V. The sentence imposed on counts 1 and 2 must be modified.
A. Facts
Appellant was sentenced on count 1 as follows. First, the court imposed a term of life imprisonment without the possibility of parole for the murder and the special circumstance under section 190.2, subdivision (a)(22). Then a consecutive term of 25 years to life imprisonment for the section 12022.53, subdivision (d), enhancement was imposed pursuant to section 12022.53, subdivision (f). A consecutive 20-year term for the section 120225.3, subdivision (c) enhancement, a consecutive 10-year term for the section 12022.53, subdivision (b) enhancement and a consecutive aggravated 10-year term for the section 12022.5, subdivision (a) enhancement were imposed; these terms were stayed pursuant to section 12022.53, subdivision (f). A consecutive 10-year term for the section 186.22, subdivision (b)(1) enhancement was imposed; this term was stayed pursuant to section 654.
Appellant was sentenced on count 2 as follows. First, the court imposed a consecutive term of life imprisonment without the possibility of parole for the premeditated attempted murder. Then a consecutive term of 25 years to life imprisonment was imposed for the section 12022.53, subdivision (d) enhancement. As a result of the true finding on the section 186.22, subdivision (b)(1) enhancement, the court ordered that pursuant to section 186.22, subdivision (b)(5), the earliest parole date on count 2 is 15 years. A consecutive 20-year term for the section 120225.3, subdivision (c) enhancement, a consecutive 10-year term for the section 12022.53, subdivision (b) enhancement and a consecutive aggravated 10-year term for the section 12022.5, subdivision (a) enhancement were imposed; these terms were stayed pursuant to section 12022.53, subdivision (f).
B. The 10-year term that was imposed and stayed for the section 186.22, subdivision (b)(1), enhancement attached to count 1 must be stricken.
Appellant asserts and respondent concedes that pursuant to People v. Lopez (2005) 34 Cal.4th 1002 the 10-year term imposed for the section 186.22, subdivision (b)(1) enhancement attached to count 1 must be stricken because it does not apply to life terms. We accept this concession as properly made.
C. It is proper to stay the subordinate 12022.53 enhancements; the 10-year terms that were imposed and stayed for the section 12022.5 enhancements attached to counts 1 and 2 must be stricken.
Appellant argues the subordinate section 12022.5 and 12022.53 firearm enhancements should have been stricken. Respondent argues the sentence is proper. Neither party is entirely correct. People v. Bracamonte (2003) 106 Cal.App.4th 704 (Bracamonte) held that when the jury has found true allegations under section 12022.53, subdivisions (b), (c), and (d), for the same count, the trial court should impose all three enhancements, but should stay executing the section 12022.53, subdivisions (b) and (c) enhancements. (Id. at p. 713.) Bracamonte also concluded that a section 12022.5 enhancement must be stricken when an enhancement under section 12022.53 applies. (Id. at pp. 712-713, fn. 5.) Bracamonte reflects the current state of the law (see People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061), and we find its analysis persuasive. Until directed to do otherwise, we continue to accept the reasoning of Bracamonte. Accordingly, we find no error in the trial courts decision to impose and stay the lesser section 12022.53 firearm use enhancements. However, the section 12022.5, subdivision (a) enhancements must be stricken.
The issue of how to treat subordinate section 12022.5 and 12022.53 firearm enhancements currently is pending before the Supreme Court in three cases: People v. Gonzalez, review granted March, 17, 2007, S149898; People v. Ybarra, review granted August 15, 2007, S152984; and People v. Warner, review granted November 28, 2007, S157246.
DISPOSITION
The judgment is modified on count 1 to strike the 10-year term that was imposed and stayed for the section 186.22, subdivision (b)(1) enhancement and to strike the 10-year term that was imposed and stayed for the section 12022.5, subdivision (a) enhancement. The judgment is modified on count 2 to strike the 10-year term that was imposed and stayed for the section 12022.5, subdivision (a) enhancement. The superior court is directed to prepare an amended abstract of judgment reflecting these sentencing modifications and to transmit it to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
WE CONCUR:
Wiseman, Acting P.J.
Dawson, J.