Opinion
A139775 A146454
03-22-2018
THE PEOPLE, Plaintiff and Respondent, v. BRIAN BROWN, Defendant and Appellant. In re BRIAN BROWN, on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. C168759)
Defendant Brian Brown was sentenced to serve 50 years to life in state prison after being convicted of first degree murder and related charges by a jury. On appeal and in a related habeas corpus petition, defendant contends his trial counsel was constitutionally ineffective as a result of failing to investigate an alibi defense. He also argues that his counsel's argument to the jury was prejudicially incompetent in suggesting he could be convicted by less than proof beyond a reasonable doubt, that the prosecutor violated a promise and the court's order by introducing testimony bearing upon whether defendant had been searching for the victim, that the court failed to strike testimony suggesting that defendant had committed murders on prior occasions, and that cumulative error necessitates reversal of the jury's verdict. In a supplemental brief, defendant urges that the matter must be remanded for the trial court to exercise its discretion to strike firearm use enhancements in light of recent changes in the law.
The People concede, and we agree, that remand is appropriate for the court to consider its discretion to strike firearm use enhancements. Because we reject defendant's other claims of error, we shall otherwise affirm the judgment and summarily deny the writ petition.
FACTUAL AND PROCEDURAL BACKGROUND
Procedural History
In January 2013, the Alameda County District Attorney filed an amended two-count information charging defendant with murder (Pen. Code, § 187) and possession of a firearm by a felon (§ 12021). As to the murder count, it was alleged that defendant personally and intentionally discharged a firearm causing great bodily injury and death. (§§ 12022.7, subd. (a), 12022.53, subd. (d).) It was further alleged that defendant personally discharged a firearm (§ 12022.53, subd. (c)) and personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subds. (b) & (g)) in connection with the murder count. The district attorney further alleged that defendant was on bail at the time of the offenses (§ 12022.1).
All further statutory references are to the Penal Code unless otherwise specified.
The matter proceeded to trial by jury, which found defendant guilty as charged of first degree murder and being a felon in possession of a firearm. The jury also found true the firearm use enhancements. The trial court sentenced defendant to a term of 50 years to life, composed of 25 years to life for the first degree murder conviction with a consecutive sentence of 25 years to life associated with the enhancement for discharging a firearm causing great bodily injury and death. The court stayed the terms as to the remaining enhancements and the conviction for possessing a firearm as a felon.
Defendant timely appealed. While the matter was on appeal, he filed a petition for a writ of habeas corpus claiming that he received ineffective assistance of counsel. We consolidated the writ petition with the pending appeal.
Trial Testimony
At trial, the prosecution set forth evidence establishing that defendant shot the victim, James Wilkins, three times as the victim sat in his car in front of a local market in Oakland. The mortally wounded victim crawled out of the car and collapsed on the pavement. As he lay dying, Wilkins told responding officers he had been shot by "Pow." It was undisputed that "Pow" was defendant's nickname. We set forth the relevant evidence below.
On July 23, 2010, at about 1:30 p.m., Cherria Chavies was stopped at a stop sign at an intersection in Oakland. Before she stopped, she heard "pops" she thought were firecrackers. She looked to her left and saw a tall, slender African-American man with long braids and a baseball hat. The man's hand, with something in it, was extended toward a car. She assumed the object in the man's hand was a gun. There was also a shorter man next to the taller man. As she watched, a man exited the passenger door of the car and fell on the sidewalk, crawling toward a store.
Danna Taylor was walking in Oakland on July 23, 2010, when she saw a man parked in a blue car in front of a market. The man was arguing with two men who were standing in the street. She heard one of the men outside the car say, "give me my half or else I am going to . . . kill your ass." The man inside was saying, "what, what, what?" Taylor saw the victim's car roll backwards down the street after the encounter.
Oakland School District Police Commander Jonathan Bellusa was the first officer to arrive on the scene. He saw the victim, an African-American man in his 30s, lying on the ground in front of a store. Another man was hovering over the victim and saying, "stay with me." Commander Bellusa slapped the victim to try to keep him awake.
Commander Bellusa went into the store looking for suspects or victims but saw only the man who had been hovering over the victim. He handed business cards to possible witnesses. He observed that a Toyota had crashed into a fence nearby, with its right passenger door open.
At around 1:41 p.m., Commander Bellusa received a telephone call from a citizen who refused to give his name. The caller seemed afraid of retaliation, but, at the outset of the phone call, told the officer that he saw "Pow" walk to a compact car, take something out of a black bag, put the object in his right front pants pocket, and then shoot the victim a couple of times. The caller referred to the victim as "J". He said he used to see Pow in the area in a Mercedes Benz and also in a compact car. The caller mentioned that he had heard Pow make comments about killing "J" in the past.
The conversation lasted about a minute. Commander Bellusa suggested the caller identify himself so he could help find a suspect. He also mentioned the possibility of a reward. The caller gave the name Charles and provided a phone number. Commander Bellusa agreed to the caller's request not to put his name in the police report.
Oakland police officer Frank Mendoza testified that he responded to the scene with officer Francisco Romero. He saw the victim on the ground in front of Melrose Market, and saw Commander Bellusa controlling the crowd. As officer Mendoza stood a foot or two away from the victim, he asked, "Who shot you?" The victim responded, "Pow shot me." Officer Mendoza conceded he was not certain of the word the victim had used, and thought it could have been "P-O-W," "P-A-L," or "P-O-W-E-L." Officer Romero heard officer Mendoza ask the victim who shot him. He did not hear the victim's reply, but he did hear officer Mendoza say, "who, Pow?" Officer Mendoza later told officer Romero that the victim had said "Pow," and officer Romero included that information in the police report. A number of different witnesses testified that defendant was known as "Pow."
Charles Lomack testified at trial on behalf of the prosecution. He was the individual who had called Commander Bellusa shortly after the shooting. Lomack knew both the victim, James Wilkins, and defendant. Lomack testified that Wilkins went by the nickname "J. Rolla" while defendant was known as "Pow." The victim also called defendant "Pow." Lomack had known defendant from the neighborhood around 51st Avenue and Vicksburg Avenue for about five years. He had once hired defendant to work in his hauling business. Lomack considered the victim a good friend. Before the shooting, he had also considered defendant a friend.
Lomack described how a friend used to cut hair on his back porch on Vicksburg Avenue near the site of the shooting. About seven months before the killing, Lomack saw defendant drive up near the residential barbershop. Defendant, who was carrying a handgun, told Lomack that he came to kill J. Rolla. After a brief conversation with Lomack, defendant jumped back in his car and drove away. On a subsequent occasion, Lomack observed defendant and the victim at the residential barbershop shaking hands as if they had settled their dispute.
On the day of the shooting, Lomack had parked near Melrose Market in Oakland. After buying beer and exiting the market, he saw the victim parked at the curb in front of the market in his blue Toyota. Lomack got into the passenger seat and spoke to the victim for a couple of minutes. As Lomack was getting out of the car, he saw defendant drive up in a light green Mazda 323, or "something like that," and get out of the car. Defendant was wearing a red sweat jacket and a baseball cap turned backwards, with braids hanging out the back held together by a rubber band. There was also a smaller African-American man with a large head in the passenger seat of defendant's car. Defendant walked toward the market and stopped at the window of the victim's car. According to Lomack, defendant returned to his car, reached in, and removed a pistol that he put in his pocket. As defendant was walking back to the victim's car, Lomack started his own car and drove slowly away. He claimed that the other, "bubble-headed man" remained seated in the Mazda. Lomack looked back and saw defendant at the victim's car. He also saw the "Arab guy with a big beard and glasses" who worked in the market standing outside smoking a cigarette.
Lomack initially told officers that defendant's car was a light green Toyota.
Lomack continued driving to the residential barbershop, where he encountered seven or eight people on the porch. He told them that "Pow just walked up on J. Rolla with a gun, man, and he looked like he finna [sic] shoot him." A few seconds later, he heard three shots. Lomack and a man he identified as "B" jumped back in Lomack's car and drove back toward Melrose Market. When they arrived, Lomack noticed that both the defendant's car and the victim's car were gone. He saw the victim on the ground and tried to revive him.
When Commander Bellusa arrived, Lomack told him that "Pow did it." The officers kept telling Lomack to step back, so after he got Commander Bellusa's business card, he drove back to the residential barbershop.
Lomack confirmed on cross-examination that at first he told the officer on the telephone that he would not give his last name because he did not want to get caught up in the case. Lomack admitted that he told an officer that he should be getting paid for his testimony because he was putting himself in jeopardy. Lomack mentioned $10,000 had been offered for his testimony although he had never received any money.
Esam Kobarree testified that he was working at Melrose Market on July 23, 2010, when the victim entered the store alone and purchased a burrito, chips, and water. About 10 minutes after the victim exited, he heard a sound like firecrackers and saw the victim on the ground. Kobarree testified that he does not smoke.
In August 2010, Oakland police sergeant Michael Weisenberg found a Mazda 626 at a tow yard in Vallejo. He had located a contact card associating defendant with that vehicle. In the glove compartment of the vehicle, officers found a fitness club membership form in defendant's name.
Tiffany Dedmon testified that defendant was the cousin of her baby's father. She confirmed that defendant goes by the name "Pow." As of August 2010, she was living with her daughter and the daughter's father, Jerome, in an apartment in Sacramento. In late July or early August 2010, defendant came to visit, although Dedmon did not know why. Defendant had come to visit them previously in Oakland but never in Sacramento. Defendant stayed for about two weeks and had worn out his welcome. He had no visitors during his stay.
On August 17, 2010, while Dedmon was visiting a nearby apartment, she heard a bullhorn loudly telling defendant to come out of her apartment. She went outside and saw police officers pointing guns at her apartment and repeatedly asking defendant to come out. Defendant never responded to the officers to ask why they were there. When defendant did not come out, Dedmon gave the officers permission to go into the apartment. The officers evacuated the entire building and called for SWAT backup.
The SWAT team called for defendant to come out of the apartment at least 30 times. After about 30 minutes, the SWAT team fired tear gas into Dedmon's apartment and entered it. Officers found no one there. They saw movement in an adjacent apartment and fired tear gas into it. Defendant exited that apartment peacefully and was arrested. Officers observed a broken hole in the wall separating Dedmon's apartment from the neighboring apartment.
Oakland police officer Omega Crum drove to Sacramento that day and took custody of defendant. Officer Crum and officer Cliff Bunn put defendant in the back of a patrol car and drove him back to Oakland. Defendant was talkative during the drive. A tape recording of a portion of the conversation was played for the jury. During the conversation, defendant began by asking the officers, "Y'all ready?" The officers asked, "for what?" Defendant replied, "for $80,000." The officers again asked for what, and defendant replied, "to let me out." Defendant then told the officers, "I got 50,000 cash. My boy got 30,000." When the officers asked why defendant wanted them to let him out, he replied, "because you guys are arresting me. And I've got everything I got stashed under the dog house for that. I got $50,000 cash on my own if you don't want to go through no one else."
DISCUSSION
I. Alleged Failure to Investigate Alibi Defense
After defendant was convicted, the trial court conducted two lengthy, in camera hearings at which it considered whether to appoint new counsel for defendant. Although defendant raised a number of different complaints about his trial counsel during those hearings, on appeal he focuses on one particular claim—that defense counsel was incompetent for failing to investigate his alibi defense that he was in Sacramento at the time of the murder. As we explain below, the trial court acted well within its discretion in declining to appoint new counsel for defendant.
A. Background
After the jury returned its verdict, defense counsel filed a motion requesting to withdraw as defendant's counsel, claiming a complete breakdown in the attorney-client relationship. A related motion sought to have the court appoint a new lawyer to represent defendant for the purposes of filing a motion for a new trial. Defense counsel also moved for an in camera hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) on behalf of her client. The court proceeded to conduct an in camera hearing to consider the grounds for the Marsden motion and the related motions filed by counsel.
Defense counsel began by stating that she wished to withdraw because of a complete breakdown in her relationship with defendant. She was reluctant to elaborate on the basis for the breakdown out of a concern that she would violate the attorney-client privilege by doing so.
Defendant stated that he did not have all of his materials, and did not anticipate that the court would be conducting a Marsden hearing at that time, but nevertheless proceeded to explain his concerns. He spoke for approximately two hours.
Most importantly, defendant claimed he asked his counsel to investigate an alibi that he was in Sacramento at the time of the murder on July 23, 2010. He claimed that the manager at the apartment complex where he was arrested in August 2010 would have testified to him being in Sacramento at the time of the murder. He asserted that the manager's husband and son could corroborate the story. And, he claimed that a security guard at the same complex had him listed in a report associated with an unrelated incident that happened at around noon on the date of the murder. According to defendant, it was the defense investigator and not defense counsel who refused to investigate the alibi defense He claimed that he and the investigator got into an argument about the investigation. The investigator purportedly told defendant he did not want to "waste his time" with the Sacramento alibi. As a result, the facts were never investigated, according to defendant.
Defendant then raised a number of other issues, which we will not detail here because they are not the subject of defendant's claim on appeal. Defense counsel responded to defendant's various claims and ultimately turned to the Sacramento defense. She corroborated defendant's claim that there was a dispute with the investigator about investigating the Sacramento alibi. Defense counsel expressed concern about the alibi defense because the prosecutor was "lying in the weeds" waiting for defendant to claim he had been in Sacramento at the time of the murder. She explained that there was a bridge receipt in the Mazda that was associated with the crime reflecting that the vehicle crossed the Benicia bridge going from Oakland in the direction of Sacramento at approximately 8:23 p.m. on the date of the murder. She said she did not think it was worth it to present the alibi defense and allow the prosecutor to "whip [the receipt] out and go, come on." She described the decision as "tactical."
Further, although defense counsel claimed to have heard about an apartment manager who could place defendant in Sacramento, she did not know the manager's name or anything about a husband or son, and she had never previously heard about a security guard. Defense counsel also explained that, at the time, defendant was suggesting "a completely different defense that would have negated alibi as the basis for reasonable doubt" and that the two defenses "could not work together."
At the conclusion of the hearing, the court acknowledged that defendant had not been fully prepared for a Marsden hearing and agreed to put the matter over so that defendant could bring whatever he needed and respond to counsel's assertions. Roughly three months later, the court conducted a second Marsden hearing to allow defendant to elaborate upon his claims. Again, defendant was allowed to speak for about two hours.
Defendant sought to minimize the importance of the bridge toll receipt that purportedly showed the vehicle he was driving crossing the bridge going toward Sacramento after 8:00 in the evening on the date of the murder. He claimed there was no "paper trail" that showed the vehicle had departed from Oakland, and he pointed out that Lomack had given inconsistent descriptions of the suspect vehicle. Defendant asserted it would be "easy" for any competent attorney to discount the importance of the receipt, pointing out that the receipt did not have a name on it and the car was not the one that was originally identified as the suspect vehicle. Although he did not dispute having previously driven the vehicle, which belonged to a female friend, he nevertheless sought to establish that it would be difficult to connect him to the car.
Defendant conceded that defense counsel told him she would go with the Sacramento defense if defendant insisted upon pursuing it, regardless of any reservations the investigator may have had. He claimed his relatives would have supported his Sacramento defense, and he reiterated his claims about an apartment manager and a security guard placing him in Sacramento at around the time of the murder.
Defense counsel again mentioned that the investigator and defendant had a disagreement about investigating the Sacramento alibi. At the time, defendant raised a possibility about pursuing a Marsden motion, but after further discussion, defendant declared he was prepared to proceed, and the investigator informed defense counsel that everything had been worked out. The Sacramento alibi therefore was not pursued. Defense counsel explained that she could not expand upon her answer without violating the attorney-client privilege.
The court asked defendant directly if it was his position that he was in Sacramento at the time of the shooting. Defendant responded, "yes," and testified as follows: "The incident, I was over my cousin's house and these dudes speaking to my cousin, selling weed, came with a knife tried to force their way into [the] complex with my niece present. The manager's doorway is right across and she came out and witnessed this and my cousin said, get the F out of here and so she called the armed patrolman."
Defense counsel responded that she could expand upon her prior testimony because defendant had opened up the issue. She explained: "At the time that we met with [defendant, he] believed that a manslaughter defense was a good defense, that he was there with somebody else and that the other person that he was with, shot and killed Wilkins in self-defense of [defendant]. That is the discussion that he was with [defendant] when [the investigator] said, 'then what am I running up to Sacramento for or words to that effect.' "
The court asked defense counsel whether defendant had ever stated he was in Oakland at the time of the shooting. She responded that he "suggested that very strongly" and proposed presenting an "alternative" defense. She explained to defendant that a heat of passion defense would be a good defense but that he could not assert that defense at the same time he was claiming to have been in Sacramento. In response, defendant claimed he never admitted to being at the scene of the crime and instead always put things in terms of hypotheticals about how the jury might view the available evidence.
Defense counsel testified that she was still interested in pursuing the Sacramento defense, despite the investigator's misgivings, but changed her mind after the investigator spoke to defendant. Following that discussion, she knew "for sure one thing. [Defendant] knew that I wasn't pursuing the Sacramento defense. [Defendant] did not object to that. That is for sure. [Defendant] never said to me, at any time, . . . , I have an alibi. This is my alibi. That is what happened. Though an alternative number of scenarios can be looked at . . . . [T]here was no question in my mind that [defendant] was fully aware that we weren't going forward with that defense and he knew that, he knew that before the end of the defense's case. There is no question about that."
The court again inquired of defense counsel whether defendant told her he was present at the scene of the shooting. She responded, "Yes. He told me that and then at another time, he told me that he was in Sacramento and at another time, he told me something different." The court took the matter under submission.
When the court reconvened, it announced its ruling denying defense counsel's motion to withdraw, denying defendant's Marsden motion, and denying the request to appoint new counsel for purposes of moving for a new trial. The court noted that, in many instances, the positions of defendant and his counsel were 180 degrees apart. The court explained that it was taking into account "criteria which don't show up on the cold record, includ[ing] all of the Court's personal observations of their relative demeanor. That is the demeanor of [defendant] and [defense counsel] as they addressed the court, things like facial expressions, tone of voice, attitude towards the action, whether the statements made appear spontaneous and genuine."
After addressing each of defendant's claims of deficient representation, the court turned to the Sacramento defense last. The court began by pointing out that defendant's actions were inconsistent with an alibi defense. He was arrested after a lengthy standoff that required the intervention of a SWAT team. He broke a hole in the wall to the neighboring apartment to evade capture. After he was taken into custody, he "ran off at the mouth" without being interrogated, but did not mention he had been in Sacramento for weeks or suggest he had an alibi. Instead, he offered the officers a bribe.
The court then mentioned that Tiffany Dedmon failed to support defendant's alibi defense even though she presumably would have been able to corroborate defendant's claim that he was in Sacramento on the day of the murder. She testified that he arrived unexpectedly in late July or early August 2010 and that he stayed approximately two weeks, but did not suggest he had been there for a longer period or that he had been there at the time of the shooting. The court questioned why defense counsel did not ask Dedmon whether defendant was with her in Sacramento on the day of the murder, but pointed out that the answer was obvious.
The court continued: "I believe [defense counsel] was telling me the truth when she indicated [defendant] had informed her that he had been present at the date, time and place of the shooting in Oakland and that he related certain additional facts regarding that shooting. . . . I make the opposite conclusion regarding the defendant when he tells me he was in Sacramento [at the] time of the shooting. I do not believe him. I do not believe he was telling me the truth."
The court concluded it was not constitutionally deficient for defense counsel to refrain from further investigation of the Sacramento defense under the circumstances. The court noted that defense counsel had an ethical responsibility not to elicit testimony or present evidence she knew to be false. The decision was not only an ethical one, but a tactical one, as the court explained: "In view of the uncontested evidence of what she already knew happened in Sacramento, the defendant's conduct, his statements, his attempt to bribe the officers and so on . . . and in view of the other matter she knew that the Prosecutor had in his possession, I recall her stated fear that the [prosecutor] was lying in the weeds, it was in my judgment, an entirely reasonable tactical decision not to pursue such a bogus defense."
B. Analysis
At issue here is whether the court abused its discretion in denying the Marsden motion and related motions based on the finding that defense counsel made a reasonable decision to conduct no further investigation of the Sacramento defense. (See People v. Barnett (1998) 17 Cal.4th 1044, 1085 [denial of Marsden motion reviewed for abuse of discretion].)
The law is settled regarding counsel's duty to make reasonable investigations. " '[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffective case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.' " (In re Lucas (2004) 33 Cal.4th 682, 722.) Citing The American Bar Association Standards for Criminal Justice, our Supreme Court has recently indicated that the " 'duty to investigate exists regardless of the accused's admissions or statements to the lawyer of facts constituting guilt or the accused's stated desire to plead guilty. '" (In re Thomas (2006) 37 Cal.4th 1249, 1262.) " 'Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.' " (In re Lucas, supra, 33 Cal.4th at p. 722, italics added.)
In In re Alcox (2006) 137 Cal.App.4th 657, the court examined a claim that defense counsel had failed to investigate an alibi defense. The trial court granted habeas relief to the defendant after finding that his defense counsel had failed to adequately investigate an alibi. (Id. at p. 664.) In reversing the trial court, the appellate court described the case as a "textbook example of a court impermissibly 'second-guessing' criminal defense counsel's tactical decisions in derogation of United States and California Supreme Court precedent." (Id. at p. 660.) In an interview with the police, the defendant initially claimed he was partying at a friend's house at the time of the murder that was being investigated. (Id. at p. 663.) After the police told the defendant his alibi was false, the defendant admitted lying and confessed. (Ibid.) In jailhouse conversation overheard by a police dispatcher, the defendant told a codefendant that he would tell his lawyer that he falsely confessed and that he could get his friends to testify falsely and provide an alibi. (Id. at p. 661.)
The Court of Appeal in Alcox concluded counsel made a reasonable decision not to investigate the alibi. (In re Alcox, supra, 137 Cal.App.4th at p. 666.) The defendant had been aware of the decision not to present an alibi defense and agreed with that defense strategy at trial. (Ibid.) Further, defense counsel reasonably believed the jury would interpret the jailhouse statement as a promise to have his friends testify falsely. (Id. at p. 667.) Because the police had interviewed possible alibi witnesses, they could be easily impeached. (Ibid.) Plus, defense counsel had an "ethical obligation not to present perjured testimony or call a witness who would testify untruthfully." (Ibid.) Ultimately, the court noted that even after years had passed in which defendant could have located alibi witnesses, he had still failed to offer a single witness who could place him at the party he claimed was held at a friend's house. (Ibid.)
In this case, the trial court did not err in concluding that defense counsel acted reasonably in declining to conduct a further investigation of the Sacramento defense. Among other things, the court emphasized that it necessarily had to make credibility determinations in light of the conflicting testimony. In reviewing the court's ruling, we accept its credibility determinations. (See In re Alvernaz (1992) 2 Cal.4th 924, 945.) The court concluded that defendant told defense counsel he was at the scene of the murder. The investigator's refusal to "waste time" pursuing the Sacramento defense is consistent with having been told that defendant was, in fact, at the scene of the murder. Further, defense counsel told the court that defendant never insisted to her that he had an alibi and agreed to go along with the defense presented at trial. The court found defense counsel credible.
The trial court appropriately emphasized the lack of evidence corroborating defendant's purported alibi. As the court observed, it was telling that no effort was made to have Tiffany Dedmon corroborate the alibi. In light of defendant's description of the Sacramento incident that allegedly occurred on the date of the murder, Dedmon and the other relatives who were there would have presumably remembered both the incident and whether defendant was present.
Defendant complains there was no investigation at all and that defense counsel had an obligation to investigate regardless of his admissions to her. But this was not a case where defense counsel simply believed defendant's admission of guilt and declined to investigate. Rather, defense counsel had convincing evidence that defendant had been present at the scene of the crime. Raising an alibi defense would have allowed the prosecution to introduce the bridge toll receipt and raise serious questions about the veracity of the alibi. As the trial court observed, there were ethical restraints as well as tactical concerns underlying counsel's decision. Under the circumstances, given the heavy measure of deference we must apply to counsel's judgment, the decision not to investigate the Sacramento defense was reasonable.
C. Habeas Claims
While the appeal was pending, defendant filed a petition for a writ of habeas corpus claiming ineffective assistance of counsel on the ground his counsel failed to adequately investigate his alibi defense. He also claims defense counsel failed to adequately investigate defenses involving provocation and self-defense.
As support for the claim defense counsel inadequately investigated his alibi claim, appellate counsel states that he was able to locate the security company that managed the apartment complex in Sacramento where Tiffany Dedmon lived as of July 2010. Appellate counsel declared that he spoke with the manager of the security company, who told him there was a "document" associated with a July 23, 2010 incident in apartment 49, where Dedmon resided. The manager told appellate counsel that he believed it was his company's practice to obtain an incident number from a police agency at the scene and include that number in an incident report. The manager could not release the document without a court order or the owner's approval. Appellate counsel wrote a letter seeking release of the report but neither the apartment owner nor the security company agreed to provide him with a copy of a report taken on July 23, 2010.
When an appellate court receives a petition for a writ of habeas corpus, it must first determine whether the petition's factual allegations, if taken as true, entitle the petitioner to relief. (People v. Duvall (1995) 9 Cal.4th 464, 474-475.) "If no prima facie case for relief is stated, the court will summarily deny the petition." (Id. at p. 475.)
Ordinarily, claims of ineffective assistance of counsel are not addressed on direct appeal due to the limited record. They are typically relegated to a habeas petition, where additional evidence outside the record can be developed. Here, we have the unusual case where the incompetence claim was fully litigated in the trial court, which held a hearing, took testimony, made findings of fact, and fully disposed of the claim. Defendant's habeas petition adds no significant allegations of fact to the record that was thoroughly considered by the trial court.
Even if we assume the truth of the petition's allegations, they do not establish that defendant was present at Tiffany Dedmon's apartment on July 23, 2010, that he was in any way involved in the incident, or even that his name appears in the report. Further, there is nothing in the allegations presented by defendant establishing when the incident supposedly took place. Given that Sacramento and Oakland are less than two hours apart by car, the fact that an incident occurred in Sacramento on July 23 would prove little, unless the incident occurred within two hours of the time of the shooting.
It is telling that, even with ample time to locate alibi witnesses, defendant has still not offered any declarations from Dedmon or other family members that were purportedly present at the July 23 incident in Sacramento. They could presumably confirm when the incident occurred and address whether defendant was present. The lack of any such evidence speaks volumes.
In sum, defendant fails to allege facts establishing that counsel's reasoned decision not to waste further resources investigating the Sacramento defense was incompetent. Likewise, defendant has failed to establish that counsel failed to adequately investigate issues related to provocation and self-defense. He alleges no facts that would show the defenses were viable or that he was prejudiced by his counsel's failure to pursue them.
II. Defense Counsel's Closing Argument
Defendant next contends that his trial counsel's closing argument was prejudicially incompetent. He argues that his counsel told the jury in two distinct ways that he could be convicted on something less than proof beyond a reasonable doubt. We address each of defendant's claims after setting forth the standard governing our review.
A. Governing Law
We apply settled standards to determine whether defense counsel rendered ineffective assistance of counsel during closing argument. " 'In assessing claims of ineffective assistance of trial counsel, we consider whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is a probability sufficient to undermine confidence in the outcome. [Citations.] A reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. [Citations.] If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citations.]' These standards apply with particular force at closing argument because, as we have recognized, '[t]he decision of how to argue to the jury after the presentation of evidence is inherently tactical . . . .' " (People v. Gamache (2010) 48 Cal.4th 347, 391, italics added.)
We generally may not second guess counsel's tactical decision about what to argue to the jury. (People v. Williams (1997) 16 Cal.4th 153, 219.) "[S]ensible concessions [in closing argument] are an acceptable and often necessary tactic." (People v. Gamache, supra, 48 Cal.4th at p. 392.) We view statements made during closing argument not in isolation but in the context of the argument as a whole. (See People v. Denis (1998) 17 Cal.4th 468, 522.)
B. Presumption of Innocence
During her closing argument, defense counsel reminded the jury that the presumption of innocence "means that as [defendant] sits here right now he is presumed innocent." She warned the jury against dispensing with the presumption now that they had heard the evidence, arguing: "I wonder a little bit if your minds have closed from [the prosecutor's] opening and closing arguments, but let's open them all up again and remember that the presumption of innocence is something that until you go into the courtroom, until you pick your foreman, until you begin to sit [sic] through all of this evidence and spend your time doing it, you have got to be holding on to right now." (Italics added.) She continued: "One of the things that I am going to have to ask all of you to do when you go in and begin your deliberations is, remember that that presumption of innocence is something that lasts right up until the time you pick your foreman and you start to deliberate." (Italics added.)
Defendant focuses on the italicized passages and urges that defense counsel improperly truncated the concept of presumption of innocence, presumably by failing to expressly state that the presumption continued through the deliberation process. According to defendant, defense counsel inaccurately told the jury "they could jettison the presumption of innocence once they picked a foreperson and deliberations began."
Defendant's interpretation of counsel's remarks is not reasonable. In context, defense counsel was simply encouraging jurors to keep an open mind and retain the presumption of innocence, even as the trial moved through different phases and the jurors began to deliberate. Merely because defense counsel repeatedly emphasized that the presumption of innocence continued "until" various stages of trial did not imply that the presumption vanished when each of those stages was reached. Indeed, counsel specifically stated that the presumption continued until they went into the jury room and began to "sit" (or more likely, "sift") "through all of this evidence and spend your time doing it." In short, the thrust of counsel's argument was not that the presumption of innocence was gone, but precisely the opposite.
Even if counsel's discussion of the presumption of innocence could be characterized as incompetent, the trial court's instructions eliminated the possibility of prejudice. "Jurors are presumed to understand and follow the court's instructions." (People v. Holt (1997) 15 Cal.4th 619, 662.) The court here expressly instructed the jury that the court's instructions were controlling, and that counsel's argument must be disregarded to the extent it differed from the instructions. The court then instructed that defendant was presumed innocent until the contrary was proved beyond a reasonable doubt. Further, the court expressly instructed the jury that they had the duty not just to decide the case, but rather, to do so "only after discussing the evidence and the instructions with the other jurors." Defense counsel's argument that the presumption of innocence continued into the jury room did not undercut the thrust of these instructions. Defendant cannot show serious error in counsel's argument or any possibility that he suffered prejudice as a result.
C. Comments on Circumstantial Evidence
Defendant next focuses on comments made by defense counsel about the treatment of circumstantial evidence. He claims the argument erroneously led the jury to believe that it could convict him based solely upon a "reasonable" account of the evidence, thereby diluting the prosecution's burden of proof.
Defense counsel told the jury "[t]here is something in this case that we have talked about a lot and that's called circumstantial evidence." She mentioned that if there are two reasonable interpretations of circumstantial evidence, one of which points to guilty and one of which points to not guilty, it is the jury's obligation to vote not guilty. Then she went through a chart to explain the various scenarios the jury might consider: "So, if the prosecution's theory is reasonable and the defense's theory is reasonable, what do you could [sic]? You go not guilty. Of course, if the prosecution theory is reasonable and the defense theory is unreasonable, sorry, you vote guilty. Now, conversely, just as easy if the prosecution theory is unreasonable and the defense theory is reasonable, the result is not guilty. But here is the one that's kind of hard to understand, but as also what the jury instructions tell you and that is; if the prosecution theory is unreasonable and the defense theory is unreasonable, you have got to vote not guilty. That's what the circumstantial evidence instruction tells you. So, there is one out of four situations only, where based on the evidence, that you can enter a verdict of guilty." Defense counsel emphasized that this was a circumstantial evidence case, without an eyewitness.
Near the end of her argument, defense counsel again focused on the treatment of circumstantial evidence: "We started to talk about circumstantial evidence, just remind you of the chart so you will remember what to do. Prosecution theory is reasonable. Defense theory is reasonable, not guilty. Prosecution theory reasonable, defense theory unreasonable, guilty. Prosecution theory unreasonable, defense theory reasonable, not guilty. And finally, both theories unreasonable, not guilty." Defense argued that the prosecution's theory was unreasonable.
Defendant argues that defense counsel misled the jury to believe it could convict defendant if the prosecution's theory was simply reasonable, without proof beyond a reasonable doubt as to each essential fact supporting the theory. We disagree.
With regard to whether defense counsel's performance was deficient, we reiterate that it is not our role to second guess tactical decisions about how to argue the case to the jury. (People v. Williams, supra, 16 Cal.4th at p. 219.) Here, in a circumstantial evidence case, defense counsel chose to focus on whether the prosecution and defense theories were reasonable. And the thrust of her argument was that the prosecution's theory was unreasonable. She emphasized that the jury must vote not guilty in such a case, irrespective of whether the defense theory was also unreasonable. This argument was rational in light of the tactical decision to focus on the unreasonableness of the prosecution's theory of the case. And, although defense counsel neglected to mention that each fact supporting a particular theory must be proved beyond a reasonable doubt, she elsewhere addressed the prosecution's burden of proof in her closing argument. We are not persuaded that defense counsel's closing argument, taken in its entirety, was deficient.
In any event, defendant cannot establish that he was prejudiced by counsel's argument. In a case relied upon by defendant, People v. Ellison (2011) 196 Cal.App.4th 1342, 1352, the prosecutor improperly attempted to lessen the prosecution's burden by implying that guilt could be predicated upon a theory was merely reasonable. Although the court concluded the argument was improper, it determined the error was harmless, reasoning in part that the jury was properly instructed on the requirement of proof beyond a reasonable doubt and had been reminded that the law comes from the judge. (Id. at p. 1353.) Likewise, in People v. Centeno (2014) 60 Cal.4th 659, 676, the court explained why counsel's statements about the reasonable doubt standard, standing alone, normally are not prejudicial in light of correct instructions on reasonable doubt.
In this case, the challenged statements were uttered by defense counsel, not the prosecutor, and were arguably tactical. Defense counsel specifically cautioned the jury that the trial court would provide the authoritative instructions to guide its review of the evidence. After closing arguments, the trial court repeated the full instructions on the presumption of innocence and the definition of reasonable doubt. And, the court specifically instructed the jury that each fact essential to a theory supported by circumstantial evidence must be proved beyond a reasonable doubt. Under these circumstances, we conclude that defendant cannot establish he was prejudiced as a result of defense counsel's closing argument.
III. Testimony Concerning Defendant Looking for the Victim
Defendant argues that the prosecutor violated a promise and an in limine ruling when he elicited testimony from Lomack in redirect examination to the effect that there were multiple occasions when defendant was in the neighborhood looking for Wilkins. According to defendant, the prosecutor had promised to introduce only one such incident.
During pretrial motions, the prosecutor indicated he wished to introduce evidence that on a prior occasion Lomack witnessed defendant come into the neighborhood where the murder occurred and state that he intended to kill J-Rolla. The prosecutor claimed the evidence came within the exception to the prohibition against evidence of prior bad acts because it was relevant in establishing defendant's state of mind and intent. (See Evid. Code, § 1101, subd. (b).)
The trial court ruled, without objection by defense counsel, that the incident was "admissible showing a motive and previous intent to kill." The court noted there was "no question that that's admissible testimony." Defense counsel sought to limit to one incident Lomack's testimony about seeing defendant driving around threatening to kill the victim. The prosecutor mentioned that he recalled Lomack stating there were other occasions when defendant had come into the neighborhood looking for the victim. Nevertheless, the prosecutor stated he only intended to offer the one prior event. Defense counsel stressed that the other incidents should be suppressed because Lomack lacked personal knowledge on which to base his testimony. The court expressed that it would take appropriate action if Lomack were to stray and expected the prosecutor to intercede or defense counsel to object if the testimony extended beyond the one incident.
On direct examination, Lomack testified about the incident, recalling that, about seven months before the shooting, he pulled in front of the residential barbershop and saw defendant's car double parked in the street. Defendant had a gun in his hand. When Lomack asked defendant "what's wrong," defendant responded, "I came to kill J. Rolla." Lomack tried to discourage defendant, telling him there was no need to kill J. Rolla and that they could just fight. After defendant rejected his suggestion, Lomack asked if defendant was afraid of going to jail. Defendant responded that he did not "give a damn." Lomack testified that defendant was "without a doubt" serious and "wasn't playing." The prosecutor asked no further questions about the incident on direct examination.
During cross-examination, defense counsel referred to the incident and quizzed Lomack about his previous statements that defendant and the victim had later shaken hands and made up. Lomack agreed with defense counsel when she queried, "so, to the best of your knowledge, whatever the beef was, they shook hands and their friendship renewed, right?"
Following defense counsel's attempt to rehabilitate the relationship between defendant and the victim, the prosecutor began his redirect by questioning Lomack about the supposed reconciliation. The prosecutor asked Lomack if he continued to warn Wilkins about defendant even after the handshake. After the trial court overruled several objections by defense counsel, Lomack testified that he warned Wilkins about "sitting here, like twiddling your thumbs" while defendant had been coming into the neighborhood. Lomack stated that "it seemed like [defendant] was still riding around like looking for [Wilkins]." After confirming that he was trying to discourage defendant from doing anything to Wilkins, Lomack testified that he was doing that "[b]ecause I could tell the way he was riding around that he had bad intentions. He wasn't just riding by for nothing. When he was riding around, he was looking on the porch." He told the victim not to sit in his car in the neighborhood because " 'you be seeing Pow riding around here like he be looking for you.' "
Defendant contends he was prejudiced by the prosecutor's failure to abide by the alleged promise to introduce only one incident in which defendant was looking for the victim. In addition, he asserts that the trial court erred in failing to sustain defense counsel's objections to the evidence. We are not persuaded.
As support for his claim that the prosecutor violated a promise, defendant relies upon United States v. Shapiro (9th Cir. 1989) 879 F.2d 468. In that case, the defendant offered to testify at trial but would do so only if a prior theft conviction was not used for impeachment purposes. (Id. at p. 469.) The prosecution stipulated that it would not offer evidence of the prior theft conviction, subject to the qualification that it would use the prior conviction if the defendant took the stand and gave the false impression that he had no prior record. (Id. at pp. 469-470.) At trial, the prosecution cross-examined the defendant about his prior conviction, purportedly because it was relevant on the issues of motive and intent. (Id. at p. 470.) The trial court admitted the conviction into evidence for those purposes. (Ibid.) On appeal, the court reversed the conviction, holding that the government was bound by its stipulation. (Id. at p. 472.) The court observed that it had "never wavered in its obligation to enforce agreements made by prosecutors upon which defendants have justifiably relied to their detriment." (Id. at p. 471.)
Shapiro is inapposite. There, the defendant agreed to testify only after the prosecution stipulated that it would not use the prior conviction to impeach defendant, with one express exception. The prosecutor violated the stipulation after the defendant relied upon it. Here, by contrast, there was no formal agreement or stipulation. Among other things, defendant does not explain what he agreed to do (or not do) in exchange for the promise. More importantly, there is no claim that defendant detrimentally relied upon the prosecution's purported promise not to introduce other incidents in which defendant was searching for Wilkins. Indeed, there is nothing to indicate that any defense decision or strategy turned upon the prosecution's purported agreement to offer no more than one incident in which defendant threatened to kill Wilkins. Consequently, we are not convinced the prosecution was bound by a promise not to introduce other incidents in which defendant was searching for the victim.
Further, there was no violation of the pretrial evidentiary ruling by the prosecution. In his direct examination of Lomack, the prosecutor complied with the pre-trial ruling by eliciting just one instance in which defendant threatened Wilkins. Plainly, the circumstances changed after defense counsel attempted to establish on cross-examination that defendant and the victim had reconciled and no longer had a dispute. " 'The extent of redirect examination of a witness is largely within the discretion of the trial court. . . . It is well settled that when a witness is questioned on cross-examination as to matters relevant to the subject of the direct examination but not elicited on that examination, he may be examined on redirect as to such new matter.' " (People v. Steele (2002) 27 Cal.4th 1230, 1247-1248; see People v. Sakarias (2000) 22 Cal.4th 596, 643-644 [cross-examination may open the door to previously inadmissible material].) Here, after defense counsel cross-examined Lomack about a supposed reconciliation between the defendant and the victim, the court acted within its discretion in allowing the prosecution to introduce evidence showing that the dispute had not been fully resolved. Lomack's testimony that he continued to warn Wilkins about defendant and that defendant continued to look for Wilkins tended to show that the purported reconciliation was illusory. Therefore, we conclude the court did not abuse its discretion in permitting Lomack to testify on redirect examination about other incidents in which defendant had been looking for Wilkins.
IV. Testimony Suggesting Defendant Committed Murder Previously
A major dispute in the case concerned Lomack's reasons for testifying. The defense asserted he was fabricating a story in the hope of receiving a monetary reward. Lomack testified to various reasons for agreeing to testify, including that he wanted to get defendant off the street because the way he carried out the murder suggested to Lomack that defendant had killed before. On appeal, defendant contends the court erred in failing to strike Lomack's testimony implying that defendant might have committed murder previously, which defendant characterizes as "pure propensity evidence" that was impermissibly offered to show that defendant had a predisposition to commit similar crimes. As we explain, there was no error.
On cross-examination, defense counsel asked whether Lomack had been interested in a reward for testifying. Lomack initially denied any interest in a reward but later expressed the view that he "should be getting paid" because he "put himself in jeopardy." After defense counsel reminded Lomack he had previously testified that he had promised Wilkins he would testify in court on his behalf if anything happened to him, she asked why Lomack thought he deserved money for being a witness. Lomack explained that he "might as well get paid" because of the position he was putting himself in. But then he claimed "it wasn't even about that from the start." He continued: "It was like just, I wanted to get this dude off the streets, though, because the way he did it was just like he was so nonchalant about it, like he had done it before. That's what it seemed like to me." (Italics added.)
Defense counsel moved to strike the reference to defendant having "done it before." The court denied the request.
In subsequent testimony, Lomack continued to explain his motives and describe why he was different from others in the neighborhood who had declined to come forward. He stated that he did not "give a damn" and was "no damn thug" or "one of them dudes that be going to jail." Lomack testified that he was "going to do what I got to do" because defendant "needs to be put where he belong, because you could tell he done killed some damn body before or shot somebody before, the way he did it." (Italics added.) Defense counsel did not move to strike Lomack's statement.
In closing argument, the prosecutor addressed attacks on Lomack's credibility and the claim that he was in it for the money. The prosecutor went through the various reasons Lomack had offered for testifying, including that he had made a promise to Wilkins to testify, that he was angry at defendant, and that no one else would come forward. The prosecutor further explained that Lomack "continued by stating that he wanted to get the defendant off the street since the way the defendant did it was so nonchalant like he had done it before." According to the prosecutor, it was these reasons that motivated Lomack to testify, and not a $10,000 reward.
We review a decision admitting evidence of uncharged crimes "for an abuse of discretion, examining the evidence in the light most favorable to the court's ruling." (People v. Catlin (2001) 26 Cal.4th 81, 120.) " 'The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.' " (People v. Steele, supra, 27 Cal.4th at p. 1243.)
In People v. Freeman (1994) 8 Cal.4th 450, the trial court admitted evidence that an alibi witness had previously committed a robbery with the defendant. (Id. at p. 493.) The trial court reasoned that testimony regarding the nature of the parties' prior relationship was admissible to show bias. (Ibid.) The Supreme Court concluded there was no error in admitting the testimony. (Id. at p. 494.) The court explained the evidence was admitted for the purpose of judging the witness's credibility and therefore did not violate the general proscription against the use of other crimes evidence. (Ibid.)
Here, the testimony to which defendant objects was plainly offered to show Lomack's motivation to testify, not to establish that defendant had committed other murders. Indeed, Lomack never alleged that defendant had, in fact, committed any other killings. He simply observed that the cool and detached manner in which defendant carried out the crime suggested to him that defendant must have committed other, similar crimes, which provided motivation for Lomack to testify against defendant. Notably, Lomack never indicated that he was aware of any other murders, and the prosecution never attempted to prove, or even asserted, that defendant had committed any previous murder. The probative value of the testimony was significant in establishing that Lomack was genuinely frightened of defendant and therefore had a motive to testify beyond the mere promise of a monetary reward. The prejudicial value was minimal in light of the context of the remarks, since it would have been clear to the jury that Lomack's supposition that there might have been prior killings was based solely upon defendant's behavior in this case and not upon any knowledge or awareness that defendant had actually committed any similar crimes.
Defendant urges that the court's error in allowing the testimony was compounded by the lack of an instruction specifying that the testimony could only be considered for the limited purpose of demonstrating defendant's motive to testify. Because the court did not have a sua sponte duty to provide a limiting instruction, the failure to request an admonition forfeited any such claim. (People v. Freeman, supra, 8 Cal.4th at p. 495.) Further, defendant cannot demonstrate that his counsel was ineffective for failing to request such an admonition. Counsel may have wished to de-emphasize the testimony, particularly because it was obvious for what purpose it was being offered. (Ibid.) Because there was a conceivable tactical reason for declining to request a limiting instruction, defendant cannot establish that counsel's performance fell below an objective standard of reasonableness. In any event, defendant cannot establish that he was prejudiced by the failure to give a limiting instruction. As noted, the evidence was probative of Lomack's motivation for testifying and was not reasonably likely to be used as propensity evidence by the jury.
Accordingly, we conclude the court acted within its discretion in declining to strike Lomack's testimony interpreting defendant's demeanor to suggest that he had killed before.
V. Cumulative Error
Defendant urges that the cumulative impact of the various errors he asserts requires that we reverse the judgment. Because we have concluded there was no error, or that defendant suffered no prejudice even if there was error, we reject the contention that the cumulative effect of the errors requires reversal. (See People v. Rountree (2013) 56 Cal.4th 823, 860 [no cumulative prejudice where "there was no error to accumulate"]; People v. Homick (2012) 55 Cal.4th 816, 875, fn. 35 [rejecting a claim of cumulative prejudice by finding that "[t]he occasional evidentiary error defendant points to could not have had a prejudicial impact sufficient to require reversal"].)
VI. Discretion to Strike Firearm Use Enhancements
In conjunction with the murder count, the jury found that defendant personally and intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d)), personally and intentionally discharged a firearm (§ 12022.53, subd. (d)), and personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)). The court imposed a consecutive sentence of 25 years to life pursuant to section 12022.53, subdivision (d). The court imposed but stayed the remaining firearm use enhancements.
In supplemental briefing, defendant argues that the trial court should exercise its discretion upon remand to consider striking one or more firearm use enhancements in light of Senate Bill No. 620, which went into effect on January 1, 2018. Before enactment of Senate Bill No. 620, sections 12022.5, subdivision (c) and 12022.53, subdivision (h) prohibited the trial court from striking firearm use enhancement allegations or findings under those sections. (Former § 12022.5, subd. (c), as amended by Stats. 2011, ch. 39, § 60; former § 12022.53, subd. (h), added by Stats. 2010, ch. 711, § 5.) Senate Bill No. 620 deleted that prohibition and now permits the court to strike or dismiss the enhancements as follows: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section." (§§ 12022.5, subd. (c), 12022.53, subd. (h).)
Defendant contends, the People concede, and we agree that Senate Bill No. 620 applies retroactively to defendants whose judgments were not yet final when the law came into effect. (See People v. Estrada (1965) 63 Cal.2d 740, 750 [statute mitigating punishment that becomes effective before judgment is final should be applied in absence of express statement to the contrary to the Legislature]; see also People v. Francis (1969) 71 Cal.2d 66, 75-78 [extending Estrada holding to statutory amendment that vests discretion in trial court to impose lesser penalty].) Because defendant's sentence was not yet final when Senate Bill No. 620 became effective, the provisions allowing the trial court to consider striking or dismissing firearm use enhancements under sections 12022.5 and 12022.53 are applicable to him.
Remand for a proper exercise of discretion is required unless the record clearly indicates that the sentencing court would not have exercised its discretion to strike the firearm use enhancements even if it possessed the authority to do so. (Cf. People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.) Here, the trial court imposed a 25-year enhancement under section 12202.53, subdivision (d), noting that it had no discretion to do otherwise. As the People concede, there is nothing in the record clearly indicating that the court would have elected to impose the firearm use enhancements even it had been authorized to strike them.
Accordingly, remand is appropriate for the court to exercise its discretion to consider striking one or more of the firearm use enhancements under sections 12022.5 and 12022.53.
VII. Correction to Abstract of Judgment
The abstract of judgment incorrectly lists the crime of which defendant was convicted as second degree murder. Although the abstract correctly reflects a 25-years-to-life sentence associated with the murder conviction, the description of the crime should be corrected to avoid any confusion as to the nature of defendant's conviction.
DISPOSITION
The matter is remanded for resentencing for the limited purpose of allowing the trial court to consider whether to strike one or more of the firearm use enhancements pursuant to sections 12022.5, subdivision (c), and 12022.53, subdivision (h).
In addition to any changes to the abstract of judgment that may be necessitated by the limited remand for resentencing, the trial court shall correct the abstract of judgment to reflect that the conviction in count one is for first degree murder.
In all other respects, the judgment is affirmed. The petition for a writ of habeas corpus is denied.
/s/_________
McGuiness, Acting P.J. We concur: /s/_________
Pollak, J. /s/_________
Jenkins, J.
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------