Opinion
H035257
09-27-2011
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY ANTHONY CASAREZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC805917)
Defendant Timothy Anthony Casarez was convicted after jury trial of attempted murder (Pen. Code, §§ 664, 187; count 1) and assault with a deadly weapon other than a firearm (§ 245, subd. (a)(1); count 2). The jury found true allegations as to both offenses that defendant personally used a deadly and dangerous weapon, a knife, during the commission of the offense (§ 12022, subd. (b)(1)); that he personally inflicted great bodily injury (§ 12022.7, subd. (a)); and that he committed the offense for the benefit of and in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)). The jury found not true an allegation that the attempted murder was in the first degree. The trial court denied defendant's request to strike the gang enhancement and sentenced defendant to prison for 18 years.
All further statutory references are to the Penal Code.
On appeal, defendant contends that (1) the court erred and violated his constitutional right to a jury trial by removing a juror in the middle of deliberations after accepting a verdict on one count; (2) the prosecutor committed misconduct and violated his constitutional right to confrontation by referencing inadmissible hearsay during his cross-examination of defendant; (3) the court erred in relying on improper reasons for denying the motion to strike the gang enhancement; and (4) trial counsel rendered ineffective assistance by failing to object to the improper reasons. As we find no error or abuse of discretion, we will affirm the judgment.
BACKGROUND
Defendant was charged by second amended information with attempted willful, deliberate, and premeditated murder (§§ 664, subd. (a), 187, 189; count 1), and assault with a deadly weapon other than a firearm (§ 245, subd. (a)(1)). The information further alleged that defendant personally used a deadly and dangerous weapon, a knife, during the commission of the offenses (§ 12022, subd. (b)(1)); that he personally inflicted great bodily injury upon a person not an accomplice (§ 12022.7, subd. (a)); and that he committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)).
The Prosecution's Case
Jasmine Kiara Villegas, her brother Anthony Mata, and her cousins, defendant, Rebecca Villanueva, and Vanessa Trillo, went in a white minivan to the 7-Eleven store at the intersection of King Road and Flanigan Drive on the night of April 26, 2008. Several other people from a party the group had all been at went with them in other vehicles. Mata had been released from prison on parole about two days before. He had been incarcerated on a conviction for assault with a deadly weapon with a gang enhancement. He had been a Norteño gang member, but he dropped out of the gang while he was in prison. He told defendant on the night of April 26, 2008, that he no longer wanted to have anything to do with gangs.
Some members of Villegas's and Mata's group went inside the store while others stayed outside. A man with a "Mongolian" haircut and wearing a white T-shirt left the store and said to the group outside, "Hey, that fool is a scrap." Defendant responded, "We'll see what's up." When Armando Santana walked out of the store, somebody said to him, "Hey, what's up?" The man with the "Mongolian" haircut lifted up his shirt. Defendant pointed to Santana's waist area. Defendant and the man with the "Mongolian" haircut then started an attack on Santana during which Santana sustained bloody injuries to his face and back. After the attack was over, Mata told defendant, "Do you know I'm on parole? I can't believe you did that to me." Defendant responded, "Well, I have to do what I have to do."
The prosecution had not been able to identify this man prior to defendant's trial.
John Campbell drove Armando Santana from a friend's house to the 7-Eleven store to buy beer late on the night of April 26, 2008. They went inside, grabbed some beer, and paid for it. After they left the store, Campbell was walking back to his car when a man in a white T-shirt approached Santana, raised his shirt, exposed a tattoo, and asked Santana where he was from. Then one or two people started attacking Santana. Other people came out of parked cars and quickly joined the attack. After the attack, Santana ran across the parking lot and crossed the street. His attackers followed him to the end of the parking lot, then ran to three vehicles which all took off at the same time. Campbell picked up Santana and took him back to their friend's house. There, Campbell and his friends took Santana out of the car, laid him on the ground, and called 911.
San Jose police officers responded to the area of Macduee Way and Macduee Court on the report of a stabbing victim. Santana was lying on his back in a driveway. He had a lot of blood on his face and the front of his shirt. A Jeep Cherokee parked in the same driveway had a lot of blood inside it. Campbell gave a description to the officers of the incident and the three cars he had seen at the 7-Eleven.
Santana was transported by ambulance to the hospital. He had stab wounds on his face, one hand, his left forearm, and his back. He was in respiratory distress and was put on a ventilator because the stab wounds had punctured his lungs. Due to the severity of his injuries, he was not able to be discharged from the hospital until May 28, 2008. On the night he was admitted to the hospital, officers collected his clothing, which included blue tennis shoes; blue jeans; a blue T-shirt; a white, black, and blue plaid shirt; and a belt with blue tape around it.
Santana did not testify at defendant's trial.
Officers responded to the 7-Eleven store near the intersection of King Road and Flanigan Drive just after midnight on April 27, 2008. There they found a trail of blood going from the right of the main entrance of the store, across the parking lot and across King Road. They obtained copies of surveillance videos from the store's surveillance equipment. From the videos they determined that defendant appeared to have a knife during the attack on Santana. They also determined that a white and black four-door Nissan Altima, a Toyota Camry, and a white minivan might be associated with the attack. A "be on the lookout" report was broadcast as to the three vehicles.
Defendant was taken into custody on Tully Road on May 22, 2008. He had been with East Bound Mob gang members in the white and black Nissan Altima depicted in the 7-Eleven surveillance videos. At the time of his arrest, defendant had a tattoo on his neck that he did not have on April 26, 2008. The tattoo was the letters EBLM.
San Jose Police Officer Aneez Raghavan testified as an expert in the operation, membership, and activities of Hispanic criminal street gangs. He testified that the Norteño criminal street gang in San Jose has "hundreds" of subsets, and that members of one subset will "affiliate" with members of other subsets. One of the subsets is "East Bound Mob," also known as "East Bound Locos Mob." In Officer Raghavan's opinion, based on defendant's EBLM tattoo, his affiliation with East Bound Mob gang members, and his prior admission to law enforcement officers that he "represented Norte," defendant was a member of the East Bound Mob gang at the time of the offense at issue here.
Norteños identify with the color red, they commonly wear a red belt or have a tattoo on their stomach which will identify their gang affiliation, and they commonly have a "Mongolian" haircut. Their main rivals are Sureños, who identify with the color blue. The word "scrap" is a derogatory term that Norteños use to refer to Sureños. A Norteño gang member who "walked by" and "did nothing about" a Sureño in his or her territory "would be perceived as weak." A gang member who commits or participates in a crime, such as an assault against a rival gang member, furthers the gang's reputation as well as bolsters that member's own reputation within the gang. A gang member could get assaulted by other gang members for "not backing them up."
The Defense Case
Defendant testified in his own defense. He admitted that he has been a member of the East Bound Locos Mob gang. On the night of April 26, 2008, defendant went to the 7-Eleven store with a group of people from a party so that they could buy beer. At least two other members of the group were also East Bound Locos Mob gang members. Two other members of the group, including defendant's friend Jose, also known as Goofy, went inside the store in order to use the ATM machine. Jose was not a member of the East Bound Mob gang, but he was a Norteño.
Initially, the defense rested without calling any witnesses. As the court was about to instruct the jury prior to the parties' closing arguments, defense counsel informed the court that defendant wished to testify. After a recess and a discussion with the parties, the court granted defendant's request to reopen in order to allow him to testify.
Jose came out of the store and told defendant that there was "a scrap" inside. Defendant responded, "all right, we can see what's up." When Santana walked out of the store, defendant asked him if he was "a southerner." Although Santana said that he was not, he was wearing all blue and he lifted up his shirt. Defendant thought that Santana was a Sureño gang member and that he was probably armed. Defendant pointed at Santana's waist area and hit him in the face. Other members of defendant's group, including Jose, also attacked Santana. Defendant pulled out his knife and stabbed Santana in the back eight or more times. Santana fought back and then ran towards the parking lot. Defendant ran after him and then returned to the minivan.
Defendant testified that the entire incident lasted about two minutes, and that he did not have any intention of killing Santana. "My thoughts were just to fight him." Defendant also testified that he was no longer a gang member as he had "dropped out" while in jail.
On cross-examination, defendant testified that on May 22, 2008, the day he was arrested, he was in the Nissan Altima depicted in the 7-Eleven surveillance videos with three other people: Alan Ruby, Eddie Sandoval, and Monique Lopez. He had about $257 in cash on him, but he did not know that Lopez had money stuffed in her bra. He was "not sure" how Lopez came into possession of some cash that day. The four people in the Altima had all been at a convenience store on San Jose Avenue earlier that day. However, defendant did not rob somebody inside that store at gunpoint, and the money he had on him did not come from a just-completed robbery. Defendant was aware that Lopez told the police that she had driven people to the convenience store on May 22, 2008.
Just before his arrest, defendant had been at his aunt's house on Ophelia Avenue. He had not gone there to drop off a bag with a gun in it. During a telephone call to his father from jail on May 28, 2008, defendant asked his father to try to find a duffle bag at his aunt's house and to get it for him. He did so because the bag contained his clothes and he was "concerned" about his clothes getting lost or stolen.
Verdicts and Sentencing
On Friday, June 12, 2009, the jury found defendant guilty of count 2 (assault with a deadly weapon), and found true all the allegations as to that count. On Monday, June 15, 2009, the court accepted the verdict, had the clerk read it into the record, and polled the jury. The court then excused a juror, replaced the juror with an alternate, and instructed the jury to begin deliberations anew on the remaining count. The jury returned to the jury room. On June 16, 2009, the jury found defendant guilty of count 1 (attempted murder), found not true that the murder was in the first degree, and found true all other allegations as to that count.
At the sentencing hearing on September 14, 2009, defendant requested that the court strike the penalty on the gang enhancement. The prosecutor opposed the request. The court denied the request and then sentenced defendant to 18 years in prison. The sentence consists of the mitigated term of five years on count 1 (attempted murder), three years for the enhancement for personal infliction of great bodily injury (§ 12022.7, subd. (a)), and 10 years for the gang enhancement (§ 186.22, subd. (b)(1)(C)). The court struck the personal-use enhancement (§ 12022, subd. (b)(1)), and stayed the sentence on count 2 pursuant to section 654.
DISCUSSION
Excusal of a Juror During Deliberations
Background
The court instructed the jury on the afternoon of Monday, June 8, 2009, after defendant testified and the parties rested. The court was not in session on Tuesday, June 9, 2009. The parties gave their arguments to the jury on Wednesday, June 10, 2009, and the jury was escorted to the jury room to begin deliberations at 1:02 p.m. The record does not disclose how long the jury deliberated that day. The court was not in session on Thursday, June 11, 2009. On the morning of Friday, June 12, 2009, the parties stipulated to excuse Juror No. 1, and to replace the juror with alternate Juror No. 1. The court instructed the jury to begin deliberations anew (CALCRIM No. 3575), and the jury returned to the jury room around 9:22 a.m. At 11:15 a.m., the jury sent a note to the court stating: "The jury has reached an impass [sic] on count 1. [¶] We have verdict on count 2. [¶] One juror will not be here after today." The court met with the parties outside the presence of the jury at 1:54 p.m. The prosecutor requested that the court determine whether there was "a reasonable probability of agreement by the jury," and, if so, give the jury an instruction he proposed. Defendant asked the court "to take the verdict, inquire if there's any likelihood that further deliberations will be fruitful. Evaluate that. If they all agree it won't, . . . the Court should order a mistrial on Count 1, take the verdict on Count 2." The court stated that it was not going to give the prosecution's proposed instruction, and that it was also not going to do what defendant had requested.
The court called for the jury and informed them that it had discussed their note with the parties, but that "You haven't been out that long." Juror No. 10 responded: "We have to remind you we have one juror leaving us. She's not going to be back on Monday so that means we have to start all over again on Monday." The court stated that "I'm certainly conscious of that fact." "[Y]our comment also presupposes that you won't be able to reach a verdict." "I'd ask that you please remember that if there is another replacement that that does require beginning from the beginning. And I would hope that that would be some additional impetus to try to resolve. You haven't been out that long. I'm not making light of the fact and I would not want to be perceived by anyone in any way making light of the fact that there seems to be an impasse. It's not uncommon that there are impasses. . . . I'm not trying to guilt you into making a decision because that's not right either. . . . I'm not saying you haven't tried. I don't want to be misperceived in any way . . . as in some way making fun of you or being dismissive or any other those kinds of things. It has not been that long."
Juror No. 10 responded, "I'd like to remind you also that one of the jurors has to leave at 2:30." "In an hour. I don't think we can -" The court interrupted and addressed Juror No. 7, who had previously informed the court that she was a student and could not be there on Monday: "Is this something that's going to - if you can't come back on Monday, is it going to cause irreparable harm?" Juror No. 7 responded: "Yes, 'cause -yeah. I mean I paid for my classes [at UC Berkeley], and we have to be there on the first day." The court stated that it could write a note or make a phone call for the juror. "[L]et's assume hypothetically that it's one day and that I can - I can make it right." Juror No. 7 responded: "It's not really the problem of me missing the first day of class." "Like I have to move in before then and like I'm moving back to Berkeley." "I don't think I can come back after that" because the juror did not have a car.
After an unreported bench conference, the court addressed the jury: "Again, look, I'm not angry. I don't want anyone to perceive me as being angry. This is important, and it's my responsibility and not just my responsibility, counsel as well. I mean there's obviously a lot invested. [¶] There's a sense that because of the concerns with respect to [J]uror [No.] 7 and with respect to another person who has some urgency in terms of leaving this afternoon that there seems to be almost a self-imposed deadline on the jury with respect to decision-making, that is, that, gee, we need to - we can't decide it by 2:30 and we're deadlocked. No?" Juror No. 2 responded: "It's my opinion I don't think that we're necessarily saying that. I think that we're all just trying to be conscious of other colleagues' other goings-on. . . . I don't think that anybody whatever impasse we are at is necessarily throwing up their hands and saying, 'we don't want to discuss it anymore. We've come to an impasse.' . . . I don't think that's the case. I think we're just in there discussing the bigger picture rather than the moment while we're in there. Realizing that there's a time restraint for today . . . . [¶] I actually would suggest that everybody has no problem with coming Monday and inserting a new one and starting all over again to give it the full deliberation process. I think that . . . us suggesting or inferring that we're deadlocked and we don't want to do anymore is just . . . not the case."
The court then readdressed Juror No. 7: "You understand, . . . that if you're replaced that that requires, even with respect to - I've been informed that the jury has reached a decision with respect to Count 2, that they have to start deliberating all over again with respect to Count 2. You understand that? [¶] The next question I have is . . . Do I understand correctly that in your opinion, you would be so preoccupied about what's going on in your personal life that you would be unable to be fair and neutral and impartial to both sides, and that your mind would be diverted such that you have some serious concerns about your ability to deliberate?" Juror No. 7 responded: "Um, yeah. I guess if I were - if I had to be here on Monday, then I would be more distracted with -" The court interrupted: "Well, distracted. I mean we're all distracted. The law requires that I - I need to understand for purposes of a record in terms of what we're talking about here in terms of the level of hardship. I have to balance a personal hardship with my responsibility, balancing my responsibility to both parties in terms of their receiving a fair trial as well. It's one thing to be a little distracted. It's one thing, for example, the juror that was replaced whose mother had an emergency medical episode, there's no way that he could continue. There's just no way. His mother is potentially dying and, you know, how could anyone, you know, focus on that. [¶] Now, fortunately, your situation is not that grave. I'm not making light of your situation. I'm saying fortunately, it's not that grave. So the question is though - and I have to ask . . . do you believe that you would be so - so distracted by the events that you couldn't give the important attention that the case requires? Because if the answer is no, then you need to be here." Juror No. 7 responded: "I think that, yes, I would not be able to be as fair and impartial as I would be if I didn't have to be somewhere else."
The court asked the parties if they had any questions of the juror. Defense counsel asked: "You feel that you couldn't do your job as a juror because you'd be worried about school and your housing problems? You couldn't set it aside for a day or two?" Juror No. 7 responded: "I would like to but, honestly, I don't - yeah, I don't think I could be." The court stated, "Juror No. 7 is excused. If you would please give your badge to the deputy."
The prosecutor immediately asked, "Could we just hold on one minute before she leaves?" The court responded, "Yes." After an unreported bench conference, the prosecutor asked Juror No. 7: "[W]ith the school situation being before you now, do you feel more rushed to come to a decision one way or the other?" Juror No. 7 responded: "Yes. Like - well, I mean I already made my own decision, and we're still talking about it but I would - [¶] . . . [¶] I think I would try to move things along more because I do want to finish this before -"
Juror No. 3 stated: "Her concern might be if you go past Monday, Tuesday, Wednesday, Thursday." "If I could, I guess the question to this juror is is she able to go the distance, not just go Monday, and maybe be able to get to school on Tuesday, is she able to stay focused and fair and . . . impartial even if it goes till next Friday? I mean there's no . . . guarantees that Monday we could be done." The court asked Juror No. 7: "[I]s that your concern is that if it goes beyond Monday, is that the concern?" Juror No. 7 responded: "That would be an even greater concern . . . ." The court asked: "[L]et's say hypothetically that the jury is able to reach a decision on Monday and you don't have to consider Tuesday, Wednesday, Thursday or Friday; . . . is what you told counsel, the defendant, and myself still applicable . . . or was your thought process based upon concerns and stressors if it went beyond that?" Juror No. 7 responded: "No. It would apply to Monday. Just Monday."
After a recess, the court stated: "This is what I'm going to have to do. I'm going to order that you [Juror No. 7] come back Monday morning. I'm not saying you're going to have to deliberate but I need to - I can't even tell you what I have to research but there are things that I have to research. [¶] You're ordered to come back at nine o'clock on Monday. Hopefully you won't be staying long. If you want me to handwrite a note to whoever that person is, I'm happy to do that. If you want me to call that person, I'm happy to call that person. Whatever I can do to mitigate your problems, I'm happy to do. This is too important a situation, and I'm just not willing to shoot from the hip on this. [¶] W[ith] respect to everyone else, please remember the Court's admonishment not to form or express any opinion. Please keep an open mind. . . . Thank you. And you're excused." The clerk's minutes indicate that the jury was excused at 2:33 p.m.
After the jury left, defense counsel stated on the record, "I object to the excuse of juror number 7. I don't think it's good cause. I think she must continue to deliberate. I don't think it's an undue hardship under the law . . . ." The prosecutor stated: "There's two separate issues I'd like to address with the Court. One is the prospective excusal of juror number 7, which still hasn't quite occurred yet. [¶] . . . [¶] I believe that based on juror 7's comments that [there]'s an issue with respect to th[e] juror duty about openly exchanging thoughts and ideas about the case, she said, well, I do want to move things along. That's certainly her prerogative. But she did say because of her school situation that she would be more inclined to move things faster than without that situation. [¶] I believe both the People and the defendant are entitled to an unfettered exchange of ideas without outside influences coming to bear on this." "The second issue with respect to continued jury deliberation, I'm asking that the Court make a finding on the record based on the comments the Court heard from the particular jurors, including especially . . . juror number 2 who spoke up, where I think it was quite evident from her comments that further deliberations could very well be helpful and that they weren't necessarily at an absolute impasse. I'm asking the Court to make a finding at this time . . . if that's what the Court feels is the correct finding that further deliberations would be potentially productive." The court asked defense counsel if he had any objection to that and, after some discussion, defense counsel stated: "I assume as long as one juror thinks that deliberations would be beneficial, they're going to continue. That's the way it's always been as far as I can remember." The court then found that "there's still a reasonable probability of agreement by the jury," and recessed until Monday, June 15, 2009.
On Monday, defense counsel filed a motion for mistrial, arguing that the court had excused Juror No. 7 without good cause, creating a de facto mistrial. The prosecutor requested that the motion be denied. He also requested that the court decide "whether or not Juror Number 7 is to be excused." The court ruled that "[u]ltimately, she is to be. The question is whether she's excused before accepting a verdict or afterwards." The prosecutor then requested that the court, "before making that final decision today . . . ask the juror as well whether she wishes to be excused or discharged." "I'm asking that the Court make that inquiry again; reserve making a decision on excusal until doing that; and then to make a decision. But I would like that to occur if the Court allows the rendering of the partial verdict."
The court stated: "If I'm interpreting the law correctly, and I want both counsel to . . . certainly give their opinions. I think that the Court has two options: One is to accept the verdict, and one is not to. [¶] And my question to Counsel would be what their preference would be. . . ." The prosecutor responded that he believed that accepting the verdict is "an appropriate thing to do." Defense counsel again moved for a mistrial, but the court denied the motion, finding that the juror had not yet been removed. Defense counsel stated, "In view of the Court's ruling, if there is to be any inquiry now that the jury has announced a split regarding whether a juror can serve, that we follow the Cleveland/Barber line of cases, that the Court conduct an inquiry of the juror independently . . . ." The court responded: "The only thing I'm going to ask is if anything has changed since Friday, and if she says nothing has changed since Friday, then I'm going to receive the verdict and relieve her." Defense counsel said, "That's fine."
People v. Cleveland (2001) 25 Cal.4th 466; People v. Barber (2002) 102 Cal.App.4th 145.
The jury and alternate No. 2 were called in. The court asked Juror No. 7, "is there anything that has changed in terms of your situation from Friday? By that I mean, on Friday you requested to be excused. You gave . . . a number of circumstances that you were facing. [¶] And is there anything that has changed over the weekend, or is it your request for hardship reasons that you be excused?" Juror No. 7 responded, "Yes." After both counsel stated that they had no questions, the court stated, "Before doing so, however, the Court would like to accept the verdict for the Count 2 that the jury has decided." The court had the clerk read the verdicts on count 2 (assault with a deadly weapon other than a firearm) and its enhancement allegations, and then polled the jury. After the jurors confirmed their verdicts, which were guilty on the assault with a deadly weapon count and true findings as to all the alleged enhancements, the court ordered the clerk to file the verdict forms and stated, "The Court intends to excuse Juror Number 7 at this time. [¶] Is there anything additional before I do so?" Both parties responded negatively, so the court excused Juror No. 7, seated alternate No. 2, and directed the jury to start deliberations anew on the remaining count and allegations. The clerk's minutes state that the jury was escorted to the jury room at 9:32 a.m. At the request of the prosecutor, the court then stated on the record that it "found good cause" to dismiss Juror No. 7.
At 10:39 a.m., the jury signed a request "to hear the transcript of testimony of defendant. At 11:20 a.m., the court reporter entered the jury room to read back the requested testimony. At 12:10 p.m., the court reporter exited the jury room and the jurors took a lunch break. The court reporter re-entered the jury room at 1:35 p.m., and completed the read back of the testimony at 2:30 p.m. The record does not indicate how long the jury continued to deliberate on June 15, 2009, or when the jury began their deliberations on June 16, 2009. The clerk's minutes state that the jury informed the court at 10:47 a.m. on June 16, 2009, that it had reached a verdict. The court called the jury in, accepted the guilty verdict on count 1 (attempted murder), and polled the jury, but found that the jury had not reached a verdict on the four allegations as to count 1, including whether the attempted murder was premeditated. The jury was escorted back to the jury room to continue deliberating at 11:07 a.m. At 11:30 a.m., the jury notified the court that it had reached a verdict on the allegations. The court then accepted the remaining verdicts, which were a not true finding as to whether the attempted murder was in the first degree but true findings as to all other allegations.
The Parties' Contentions
Defendant challenges his conviction only on count 1, the attempted murder count. He contends that the court dismissed Juror No. 7 without good cause, violating his state and federal constitutional jury trial rights. "Here, in the midst of deliberations - and after the jury had announced that it was split on the attempted murder count - the trial court discharged Juror [No.] 7 because she was starting school at Berkeley the following Monday and would have difficulty commuting to San Jose for court." Defendant further contends that, "[a]ssuming, without conceding, that the court had good cause to discharge Juror [No.] 7, that good cause existed on Friday, June 12, just after the juror had brought her transportation issues to the court's attention. By Monday, her circumstances had changed, since she had already made it back to court on the very day when she said she would be unable to make it back." "Furthermore, despite her concerns, Juror [No.] 7 never actually asked the court to remove her from the jury."
The Attorney General contends that "substantial evidence supports the trial court's determination that good cause existed to discharge Juror No. 7 due to doubts she expressed regarding her inability to continue deliberating given her personal concerns regarding classes and housing at college. She told the court that she did not think she would be able to be as 'fair and impartial' as she would be if she did not have to be somewhere else, she did not think she could set her worries about school and housing aside for a day or two, and because of her personal problems, she thought she would try to move things along faster than she would otherwise." "And, Juror No. 7's concerns were not related solely to her ability to get to court on Monday, but to her ability to fairly deliberate given her personal situation. [¶] In sum, the removal of the juror was based on a demonstrable reality that she could not or would not be able to perform her duty. Accordingly, the trial court did not abuse its discretion in removing Juror No. 7."
Analysis
"A sitting juror can be removed only for illness or other good cause. (§ 1089.)" (People v. Price (1991) 1 Cal.4th 324, 400.) "Removing a juror is, of course, a serious matter, implicating the constitutional protections defendant invokes. While a trial court has broad discretion to remove a juror for cause, it should exercise that discretion with great care." (People v. Barnwell (2007) 41 Cal.4th 1038, 1052, fn. omitted (Barnwell).) However, the discharge of a juror for good cause "even after deliberations have commenced, ' "does not offend constitutional proscriptions." ' " (People v. Wilson (2008) 44 Cal.4th 758, 820-821.)
"Removal of a juror under section 1089 is committed to the discretion of the trial court, and we review such decisions by asking whether the grounds for such removal appear in the record as a demonstrable reality. [Citation.]" (People v. Thompson (2010) 49 Cal.4th 79, 137 (Thompson).) This standard differs from the substantial evidence standard of review in that it "entails a more comprehensive and less deferential review. It requires a showing that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion . . . . It is important to make clear that a reviewing court does not reweigh the evidence under either test. Under the demonstrable reality standard, however, the reviewing court must be confident that the trial court's conclusion is manifestly supported by evidence on which the court actually relied." (Barnwell, supra, 41 Cal.4th at pp. 1052-1053.) In making our determination, "we defer to the trial court's judgment on [the juror's] credibility." (People v. San Nicolas (2004) 34 Cal.4th 614, 646; see also People v. Beeler (1995) 9 Cal.4th 953, 989 [recognizing the importance of a court's observation of a juror's demeanor in reviewing a decision to discharge]; People v. Lucas (1995) 12 Cal.4th 415, 489 (Lucas) [same].)
"The most common application of [section 1089] permits the removal of a juror who becomes physically or emotionally unable to continue to serve as a juror due to illness or other circumstances. [Citations.]" (People v. Cleveland, supra, 25 Cal.4th at p. 474.) "We have recognized that both trial-related and non-trial-related stress can provide good cause for discharging a juror. [Citations.]" (Thompson, supra, 49 Cal.4th at p. 138.) In addition, "a juror facing personal hardship might feel 'some pressure to bring the penalty deliberations to a speedy close.' " (People v. Earp (1999) 20 Cal.4th 826, 893.)
In People v. Fudge (1994) 7 Cal.4th 1075, a juror who would soon be starting a new job "informed the trial court that her anxiety over the paperwork she must complete to terminate her position at her present employer would affect her ability to deliberate." (Id. at p. 1099.) The juror's request to be discharged from the jury occurred after the jury had returned verdicts of guilty on three of five murder counts, the jury had been polled, and it had returned to deliberate the remaining counts. (Id. at p. 1098.) The Supreme Court held that the record supported the trial court's ruling that good cause existed to excuse the juror. "In this case, the record reveals that [the juror] affirmatively stated on July 31st that her anxiety over her new job would not affect her deliberations. On August 10th, after the court received the three murder verdicts, the court twice asked [the juror] whether her problems would affect her deliberations. She twice replied in the negative. It was only after she spoke on the telephone with her employer that she—for the first time—informed the trial court that her anxiety over the paperwork she must complete to terminate her position at her present employer would affect her ability to deliberate. It was at that point the court excused her. [¶] The record thus supports the trial court's ruling that good cause to excuse [the juror] did not exist until after she spoke with her employer on the telephone on August 10th. Indeed, just prior to calling her employer, she had affirmed her ability to remain impartial. Under these circumstances, . . . [w]e . . . conclude the trial court's finding of good cause to excuse [the juror] after her phone call to her employer was supported by substantial evidence. [Citation.] Accordingly, the trial court did not abuse its discretion by excusing [the juror]." (Id. at pp. 1099-1100, fn. omitted.)
In Lucas, the court excused a juror after the guilt phase but before the commencement of the penalty phase of a trial. The juror had informed the court that it seemed likely that the penalty trial would require the juror to cancel her vacation. The juror said that she would forfeit some money and could not reschedule the vacation for some months due to her work and school schedule. (Lucas, supra, 12 Cal.4th at p. 487.) Although the juror stated the cancellation of her vacation would not affect the discharge of her duties as a juror, the trial court determined that the juror's demeanor indicated her ability to deliberate fairly would be substantially impaired if the penalty trial caused her to cancel her vacation. The Supreme Court found that the trial court did not abuse its discretion in discharging the juror. "We find no abuse of discretion. Although the juror stated the cancellation of her vacation would not affect the discharge of her duties as a juror, her behavior and demeanor supplied substantial evidence to the contrary. She had repeatedly brought the problem of the vacation to the court's attention, exhibiting concern and agitation over it. The court determined that the juror's demeanor indicated her ability to deliberate fairly would be substantially impaired if the penalty trial caused her to cancel her vacation. [Citation.] We also observe that the juror would have felt some pressure to bring the penalty deliberations to a speedy close in order to preserve her planned vacation. It was not an abuse of discretion to discharge her." (Id. at p. 489.)
In this case, Juror No. 7 had paid for her classes at a university in another county. She needed to move there and to be there for the first day of classes on Monday. She would also have to arrange for transportation back to the court, as she did not have a car. She told the court on Friday that she would not be able to be as fair and impartial as she would be if she did not have the school situation, and that because of her situation she would feel more rushed to come to a decision one way or the other. Although she was able to return to court on Monday after being ordered by the court to do so, she told the court at that time that her situation had not changed and that she was still asking to be excused. The court then excused the juror. This record, as did the records in Fudge and Lucas, provides substantial evidence for the trial court's determination that the juror's situation would affect the discharge of her duties as a juror, and we find grounds for the court's removal of Juror No. 7 as a demonstrable reality. (Barnwell, supra, 41 Cal.4th at pp. 1052-1053.) The trial court did not abuse its discretion in discharging Juror No. 7, and defendant's constitutional jury trial rights have not been violated by the juror's removal.
Cross-Examination of Defendant
Background
After the court granted defendant's request to reopen so that he could testify in his own behalf, the prosecutor requested leave to impeach defendant with evidence of an uncharged robbery offense. The prosecutor made an offer of proof as to the facts underlying an armed robbery that occurred at a convenience store on San Jose Avenue on the day of defendant's arrest, and the seizure of a gun at a residence on Ophelia Avenue associated with defendant. Defendant sought to exclude the evidence under Evidence Code section 352. The court "denie[d] the defendant's request to prohibit the People from impeaching [him] with the uncharged crime as requested by [the prosecutor]." Later, during the prosecutor's cross-examination of defendant, the following occurred.
"[The Prosecutor:] Isn't it true that you went into that store [on San Jose Avenue] and robbed somebody there at gunpoint?
"[Defendant:] No, sir.
"[The Prosecutor:] And you did it with Eddie Sandoval?
"[Defendant:] No, sir, I did not.
"[The Prosecutor:] And that a few hours later, you were arrested by the police?
"[Defendant:] I was arrested by the police a few hours later, yes.
"[The Prosecutor:] After dropping a gun off at the Ophelia address?
"[Defendant:] No, sir.
"[The Prosecutor:] And at the time that you were arrested, you had about 257 in cash?
"[Defendant:] Approximately, yes.
"[The Prosecutor:] You didn't have a job at that time, right?
"[Defendant:] No, sir, but I did have a bank account.
"[The Prosecutor:] Answer my question, okay?
"[Defendant:] No, sir.
"[The Prosecutor:] You didn't have a job. You didn't have a regular source of income?
"[Defendant:] Not at that time, no.
"[The Prosecutor:] And that money that you had in your possession was from just completing a robbery with three other East[ B]ound Mob gang members?
"[Defendant:] No, sir.
"[The Prosecutor:] You've been getting comments or copies of interviews and statements by other people as part of the discovery in this case, right?
"[Defendant:] Yes, sir, I have.
"[The Prosecutor:] Including statements by Monique Lopez?
"[Defendant:] I believe so, yes.
"[The Prosecutor:] And you understand that she told the police she confessed to going to this store, Kim's Market, on San Jose Avenue on May 22nd of last year, correct?
"[Defense Counsel:] Objection. Relevance as to statement of Monique Lopez that he may have read in discovery.
"THE COURT: Overruled.
"[Defendant]: Can you ask that question again?
"[The Prosecutor:] You understand she confessed to driving people to Kim's Market on San Jose[] Avenue on May 22?
"[Defendant:] Yes, sir.
"[THE PROSECUTOR]: And you understand that she confessed the people in her car with her were yourself, Eddie Sandoval and Alan Ruby?
"[Defendant]: Yes, sir.
"[Defense Counsel]: Objection insofar as her hearsay declaration might be a declaration against her own interest, there might be some relevance but her statement regarding other people is hearsay. I would object.
"[The Prosecutor]: It's just to lead up to a question.
"THE COURT: The objection will be sustained, and the answer will be stricken. "[Defense Counsel]: Thank you.
"[The Prosecutor:] And you understand that she informed the police that you and Eddie Sandoval went into that store and robbed it, correct?
"[Defense Counsel]: Objection.
"THE COURT: Sustained.
"[The Prosecutor:] Did you - was Monique Lopez telling the police the truth?
"[DEFENSE COUNSEL]: Objection.
"THE COURT: Sustained.
"[The Prosecutor:] Was anybody else in that white Nissan Altima when you were arrested other than the four people that had already been identified: Yourself, Monique, Eddie, and Alan?
"[DEFENDANT]: No, sir."
The Parties' Contentions
Defendant contends that the prosecutor committed "misconduct, which violated [defendant's] Sixth Amendment right to confront Monique Lopez about her testimonial statements implicating him." He contends that the prosecutor's questions were designed to elicit inadmissible hearsay and that, "[i]n a case which turned on [defendant's] credibility as a witness, the misconduct was extraordinarily prejudicial since it effectively brought in a percipient witness to show that [defendant] had just lied about his involvement in the robbery." "It is immaterial that the trial court sustained objections before [defendant] was required to answer the prosecutor's questions. . . . The impropriety was in the questioning itself." Defendant further contends that, "[a]s defense counsel adequately preserved the issue for appeal, and a request for admonition would have been futile, the issue has not been forfeited." Alternatively, he contends that "his attorney provided ineffective assistance of counsel by failing to object on the grounds of prosecutorial misconduct and a violation of the confrontation clause."
The Attorney General first contends that defendant forfeited his claim of prosecutorial misconduct by failing to raise it in the trial court. "Here, although [defendant] objected to the challenged questions by the prosecutor, he made no claim of prosecutorial misconduct and made no request that the trial court admonish the jury in any way." The Attorney General further contends that "the prosecutor's challenged questions did not rise to the level of misconduct." "In questioning [defendant] about his participation in the robbery of the market, the prosecutor was seeking to bring in evidence of a crime of moral turpitude which the trial court had already ruled was relevant and admissible." "However, even if the prosecutor's questions could be construed as improper, '[m]erely asking a question to which an objection is sustained does not itself show misconduct.' "
Analysis
"The applicable federal and state standards regarding prosecutorial misconduct are well established. ' "A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.' " ' [Citations.] 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.] As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]" (People v. Samayoa (1997) 15 Cal.4th 795, 841; see also Darden v. Wainwright (1986) 477 U.S. 168, 181; People v. Benavides (2005) 35 Cal.4th 69, 108.) "[F]ailure to request the jury be admonished does not forfeit the issue for appeal if ' "an admonition would not have cured the harm caused by the misconduct." ' [Citation.]" (People v. Hill (1998) 17 Cal.4th 800, 820 (Hill).)
The standard for establishing ineffective assistance of counsel is also well established. "[The defendant] must show that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates. In addition, [the defendant] must establish that counsel's acts or omission resulted in the withdrawal of a potentially meritorious defense." (People v. Pope (1979) 23 Cal.3d 412, 425; see also, Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Price, supra, 1 Cal.4th at p. 440.)
Defendant's objection at trial was hearsay, not prosecutorial misconduct. Accordingly, he has forfeited a claim of misconduct on appeal "unless an admonition would have been useless to cure the alleged harm." (People v. Dennis (1998) 17 Cal.4th 468, 518; Hill, supra, 17 Cal.4th at p. 820.)
"Although it is misconduct for a prosecutor intentionally to elicit inadmissible testimony [citation], merely eliciting evidence is not misconduct." (People v. Scott (1997) 15 Cal.4th 1188, 1218.) "Moreover, merely asking a question to which an objection is sustained does not itself show misconduct." (People v. Freeman (1994) 8 Cal.4th 450, 495.) Here, the court sustained a hearsay objection to the prosecutor's questions at issue and struck defendant's answer to one of the questions. Defendant did not answer the other questions at issue and his counsel did not ask the court to admonish the jury to disregard any of the questions. The court instructed the jury at the conclusion of the trial that, "[d]uring the trial, the attorneys may have objected to questions or moved to strike answers given by the witnesses. I ruled on the objections according to the law. If I sustained an objection, you must ignore the question. If the witness was not permitted to answer, do not guess what the answer might have been or why I ruled as I did. If I ordered testimony stricken from the record you must disregard it and must not consider that testimony for any purpose." (See CALCRIM No. 222.) We presume that the jury followed the court's instructions and disregarded the prosecutor's questions and defendant's answer. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Therefore, any harm caused by the prosecutor's questions and/or counsel's failure to request an admonishment was cured by the court's instructions. And, because defendant's one answer was stricken, nothing more would have been gained if counsel had also interjected a prosecutorial misconduct objection and a request for admonition. For all these reasons, defendant has not shown either that the prosecutor committed misconduct or that counsel rendered ineffective assistance by failing to request an admonition after the court sustained his hearsay objections and struck defendant's one answer.
The Gang Enhancement
Background
The probation officer's report stated that defendant admitted stabbing the victim and that defendant said that he testified at trial to having done so. Defendant said that he regrets what he did, and that he prays for the victim and the victim's family. He said that he had been "jumped in" the gang by the end of 2007, and that by the time of his arrest he was drinking alcohol "from sunup to sundown." Defendant also reported that he had recently "dropped out of the gang lifestyle," and that he planned on pursuing a psychology degree while in prison. He hoped to open a group home and work in the field of gang prevention. Attached to the probation officer's supplemental report were documents indicating that defendant had obtained his G.E.D. and had been regularly attending Narcotics Anonymous meetings. The probation officer recommended that defendant be sentenced to prison for 21 years, with the sentence to include the middle term for the attempted murder conviction as well as punishment for all the alleged enhancements.
At the sentencing hearing, defense counsel requested that the court "exercise its discretion under [section 186.22, subdivision (g)] to strike the penalty on the gang enhancement on the grounds that this is an unusual case and the interests of justice would be served by the facts set forth in the probation report and the supplemental report." "[T]his is an unusual case, primarily due to the sincerity of the defendant's remorse for the crime that he committed. He has obvious willingness to take responsibility for that, and his avowed statements that he . . . wants to spend his life turning around the effects of what he's done, which are not empty words. He's actually gone forward and taken steps to do everything within his power to make things right." "And we're not arguing for finding an unusual circumstance on the crime itself. Just the gang enhancement. What's the purpose of that? It's to lock up the really dangerous people for a longer period of time, and it's to deter other people from committing the same crime." "But it seems to me this is not the right case to add that ten years to his sentence. I think society will benefit somewhat from his early release, that he will do the good work that he tells the Court he wants to do."
The prosecutor opposed defendant's request, arguing that "there's nothing unusual about this case whatsoever. It's a prime example of the ongoing violence that happens in this city throughout the year, the City of San Jose throughout the year between Norteños and Sureños." "If there's anything unusual in this case, it's the intensity and amount of violence that was inflicted on this person in such a short amount of time." "The defendant's role in this was not minor. He was a major, active participant. . . . He was the person . . . who initiated the attack. He was the person who stabbed the victim more times than anybody else. About eight times, by his own testimony." "I suppose if remorse was the only consideration that a Court had to find for unusual circumstances to avoid imposing a gang enhancement, then any defendant who came along therefore and said 'I'm sorry' would be enough to set aside what by all accounts in this case is nothing other than a gang motivated attack." "In terms of the defendant's testimony also during the trial, I think the jury had to conclude that he was lying during part of it, because he denied on the stand that he intended to kill the victim, and the jury could not have arrived at its verdict unless the jury found a specific intent to kill. That's a required element in this case."
When denying defendant's request to strike the gang enhancement, the court stated: "I don't know if Counsel were here earlier this morning. On a - a case that I had with respect to a strike prior and a current offense of driving under the influence and having a 12020 prohibited weapon, defense counsel requested that the Court strike the strike, at first requesting probation. And when the Court indicated an uncomfortableness with doing that, suggested striking the strike and giving a mitigated sentence.
"The Court indicated on the record at that time that the Court does the best that it can to follow the law, whether the Court agrees or disagrees with it and whether the outcome is - whether the Court is comfortable with the outcome or not. In that particular case, the Court was not comfortable for the 32 months that the Court was required to impose, and the Court stated that the Court thought that 16 months was more appropriate. But in order for the Court to get there, the Court would have to strike the strike, which required following the principles of Romero. And the Court, for the reasons that the Court gave at that time, did not think that those principles had been met; and therefore, the Court was required to give a sentence that it thought to a certain extent was unjust. I say that to the - both of you as well as to the defendant as a preview in terms of my further comments.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
"The longer that I have the privilege of sitting here, the more that I understand the importance of local legal culture, in the sense that the community makes decisions with respect to the prosecutors that it elects, the judges that it elects in terms of the sentiment that it wishes to communicate to the community at large.
"Santa Clara County is probably the most punitive county in Northern California. That's what the community wants. That's what the community has said since I've been a resident here since 1972 that it wants. It wants people doing maximum times for crimes. That's what the citizens want.
"Whether I agree with it or disagree with it, that is in fact local culture. Local culture is different in some of the surrounding communities. In San Francisco County, local culture supports a prosecutor who takes the position that under no circumstances would she ever file a death penalty complaint or information. And apparently that's what the citizens of San Francisco are comfortable with, and that is their right.
"Santa Cruz County is certainly different than Santa Clara County. Alameda County is certainly different than Santa Clara County. And the reason why the Court is giving these examples is because when the Court considers the request of defendant - and with respect to unusual circumstances, the Court is of the opinion that the definition or how one gets to an unusual circumstance is dependent upon several factors, the most important being the individual. But I think that reality also requires an examination of local culture, what is unusual circumstances to a certain extent within the local culture, meaning the local community. Something that would be viewed as unusual in San Francisco County might not be viewed as unusual in this county and vice versa.
"The Court agrees with [the prosecutor], to the extent that the jury found the defendant guilty of attempted second degree murder, but the Court does not agree with [the prosecutor] that that necessarily means that the defendant when he testified was therefore being untruthful with respect to his intent. The jury - the Court's of the opinion that there was ample evidence to support the jury's finding, and this Court is not going to substitute and is not suggesting that it substitute its judgment for that of the jury. Because the Court feels that there was in fact evidence, given the evidence and the instructions, that the jury could find as it did that the defendant was guilty of Count 1.
"Having said that, however, the Court does not jump to the conclusion that the People suggest that therefore, by virtue of that verdict, that the defendant was lying. The jury weighed the evidence and decided that the evidence supported the finding of guilt. Having said that, that does not necessarily by operation of that fact lead to the conclusion that the defendant was lying.
"The Court had the opportunity to observe the defendant to observe the defendant's testimony, and the Court appreciates the position of the prosecution that the defendant is insincere, lying, and will say or do anything in order to mitigate his ultimate sentence. The Court disagrees with the prosecution. The Court takes it - the Court believes it has the responsibility to observe each defendant individually and to reach a -its conclusions on an individual basis, again taking into consideration the local culture.
"The Court does not feel that the facts of this case meet the requirements of law with respect to the striking of the ten-year enhancement. The Court reaches that conclusion not because the Court does not believe what the defendant has had to say orally during the trial or with respect to his comments, but rather with respect to the totality of the circumstances presented in this particular case. And the Court's of the opinion that no matter how sincere the Court finds the defendant to be, that the totality of his sincerity does not outweigh what the Court observed with respect to the viciousness of the - of the crime that is the subject matter of this particular case."
The Parties' Contentions
Defendant contends that "the trial court erred by relying on improper factors in denying [his] request to strike the gang enhancement." "[F]actors like local culture and the will of the electorate, quite simply, have no reasonable relationship to any sentencing determination." "Moreover, the trial court's rationale was also improper because it permitted political considerations to enter its sentencing determination." Defendant argues that the trial court's error requires a new sentencing hearing. "Here, it is reasonably probable that the trial court would have struck the gang enhancement were it not for its improper consideration of 'local legal culture.' " Additionally, defendant argues that his counsel's failure to object, when the court denied the oral motion to dismiss the gang enhancement "due to its views about 'local culture' and its belief that local voters wanted judges who impose tough sentences," "constituted ineffective assistance of counsel in violation of the Sixth Amendment."
The Attorney General contends that, because defendant "did not object to the trial court's reasons for denying his request to strike the punishment on the gang enhancement," he forfeited his right to raise on appeal "an issue regarding defects in the court's reasons for sentencing terms." The Attorney General further contends that defendant's claim "also fails on the merits" because the trial court "did not exercise its discretion in an 'arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' " Lastly, the Attorney General contends that "[t]here was no basis on which to raise a meritorious objection to the trial court's decision and defense counsel was not required to ' "waste the court's time with futile or frivolous motions." ' "
Analysis
Section 186.22 "prescribes certain penal consequences for crimes committed 'for the benefit of, at the direction of, or in association with' a criminal street gang." (People v. Gardeley (1996) 14 Cal.4th 605, 615.) "Underlying the enactment of this statutory scheme was a legislative finding declaring that 'California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against peaceful citizens of their neighborhoods.' (§ 186.21.) To combat the problem, the Legislature declared its intent 'to seek the eradication of criminal activity by street gangs by focusing on patterns of criminal gang activity and upon the organized nature of street gangs.' (Ibid.)" (Gardeley, supra, at p. 615.)
Section 186.22, subdivision (g) provides that "the court may strike the additional punishment for the enhancements provided in this section . . . in an unusual case where the interests of justice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition." "In striking [a gang] enhancement ' "in furtherance of justice" ' the court 'may look to general principles, outside the framework of the sentencing scheme, or be guided, instead, by the particulars of the scheme itself, informed as well by "generally applicable sentencing principles relating to matters such as the defendant's background, character, and prospects," including the factors found in California Rules of Court, rule 410 [now rule 4.410] et seq.' [Citations.]" (People v. Torres (2008) 163 Cal.App.4th 1420, 1433, fn. 6; see also People v. Levingston (1982) 136 Cal.App.3d 724, 730-731 (Levingston).)
Rule 4.410(a) of the California Rules of Court lists seven general objectives of sentencing, among them "[p]rotecting society," "[p]unishing the defendant," "[d]eterring others from criminal conduct by demonstrating its consequences," and "[a]chieving uniformity in sentencing." "Because in some instances these objectives may suggest inconsistent dispositions, the sentencing judge must consider which objectives are of primary importance in the particular case. The sentencing judge should be guided by statutory statements of policy, the criteria in these rules, and the facts and circumstances of the case." (Rule 4.410(b).)
All further rule references are to the California Rules of Court.
We review the trial court's decision not to strike an enhancement for abuse of discretion. (See People v. Williams (1998) 17 Cal.4th 148, 162; see also People v. Sinclair (2008) 166 Cal.App.4th 848, 855.) "The trial court's sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.' [Citation.]" (People v. Sandoval (2007) 41 Cal.4th 825, 847.) "[A] trial court will abuse its discretion . . . if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision. [Citations.]" (Ibid.) To establish an abuse of discretion, defendant must demonstrate that the court's sentencing decision " 'exceeds the bounds of reason, all of the circumstances being considered.' " (People v. Warner (1978) 20 Cal.3d 678, 683; People v. Carbajal (1995) 10 Cal.4th 1114, 1121 (Carbajal).) "When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper." (People v. Price, supra, 1 Cal.4th at p. 492.)
Here, the trial court stated that in determining whether to strike the punishment for the gang enhancement, it considered the offense, the offender, and the public interest. (People v. Sandoval, supra, 41 Cal.4th at p. 847.) The court stated that the evidence supported the jury's finding that the offense was attempted murder, and that it agreed with the prosecution that the facts showed that it was a vicious offense. The court stated that it did not agree with the prosecution that defendant was lying or that he was insincere, but it found that the viciousness of the offense outweighed any sincerity defendant demonstrated. The court also stated that it considered the public interest in that it understood that the local community wanted criminal offenders such as defendant to serve maximum terms for their crimes. Although the court denied defendant's request to strike the punishment for the gang enhancement, it imposed the mitigated term of five years on the attempted murder count and struck the personal-use enhancement.
The court "did not abandon individualized sentencing; instead it carefully considered defendant's background, the offense involved, and the . . . probation report, and then deliberately based its decision on these factors. The judge's additional comments explaining rejection of defendant's unusual claim for leniency properly considered the effect a reduced punishment would have on society." (Levingston, supra, 136 Cal.App.3d at p. 731.) On this record, we cannot say that the court's decision to not strike the punishment for the gang enhancement " ' " 'exceeds the bounds of reason, all of the circumstances being considered' " ' " (Carbajal, supra, 10 Cal.4th at p. 1121), or that "it is reasonably probable that the trial court would have chosen a lesser sentence" (People v. Price, supra, 1 Cal.4th at p. 492) had counsel raised an objection to the trial court's statement of reasons. Accordingly, defendant has not shown either that counsel rendered ineffective assistance by failing to object to the trial court's statement of reasons or that resentencing is required.
DISPOSITION
The judgment is affirmed.
BAMATTRE-MANOUKIAN, ACTING P. J.
WE CONCUR:
MIHARA.J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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