Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 0504506
Richman, J.
A jury found defendants Darryl Daniels and Charles Gordon guilty of two counts of attempted murder that was willful, deliberate, and premeditated (Pen. Code, §§ 187, 664, subd. (a)) and one count of second degree robbery (§ 211). The jury also found Daniels guilty of carjacking (§ 215, subd. (a)), discharging a firearm from an vehicle (§ 12034), and discharging a firearm at an occupied vehicle (§ 246). The jury also found true a number of firearm-related enhancement allegations. After finding true additional allegations that Gordon had two juvenile adjudications that qualified for sentencing under the “Three Strikes” law, the trial court sentenced him to state prison for a total term of 111 years to life. Daniels was sentenced to prison for a term of 56 years and eight months to life. Daniels and Gordon filed timely notices of appeal.
Statutory references are to the Penal Code unless otherwise indicated.
Daniels contends that: (1) there is no substantial evidence that the carjacking and robbery of which he was convicted were effected by force or fear; (2) the trial court erred in not instructing the jury on grand theft from the person as a lesser included offense of robbery; and (3) the trial court abused its discretion by admitting “highly inflammatory” evidence of so-called rap lyrics that were found in a search of his cell during the trial.
Gordon contends that: (1) his trial counsel was constitutionally ineffective because he failed to object to: (a) Aranda-Bruton error when the trial court admitted hearsay evidence of a confession made by Daniels that implicated Gordon in one of the attempted murders; and (b) alleged prosecutorial misconduct in examining witnesses and presenting closing argument; and (2) his juvenile adjudications were inadequate for use as strikes to support enhanced sentences under the Three Strikes law.
See Bruton v. United States (1968) 391 U.S. 123; and People v. Aranda (1965) 63 Cal.2d 518.
We conclude that neither Daniels nor Gordon has established the existence of prejudicial error. Accordingly, we affirm the judgments of conviction.
BACKGROUND
Audie Williams testified that on September 22, 2004, he was talking to a woman on a street in Pittsburg when “I felt a gun stuck up in my back.” A man demanded “everything I had,” whereupon Williams surrendered $270 and a cell phone. Williams initially identified the robber to police as defendant Gordon, although at trial he testified that it was not Gordon. Pittsburg Police Officer Togonon and Detective Deplitch testified that Williams immediately, repeatedly, and emphatically identified Gordon as the man who robbed him.
Hilario Martinez testified that his personal property and his automobile were taken from him on December 1, 2004. Martinez testified that he was walking towards his Buick LeSabre when two men approached. One of the two men was Daniels, whom Martinez recognized. Either Daniels or the other man—Martinez did not remember which—showed a gun. One of the two—again Martinez did not remember which one—demanded that Martinez hand over his cell phone and the keys to his car. Martinez did so. Daniels was observed driving Martinez’s car ten days later.
Daniels and Gordon were convicted of the attempted murder of Sean McClelland. McClelland did not testify because he died before the trial. Pittsburg Police Officer Erik Severe testified that on the evening of December 17, 2004, he went to a hospital and spoke with McClelland, who had been shot eight times outside the Woods Manor apartment complex. McClelland refused to identify who had shot him. Officer Severe testified that after he left McClelland he went to the apartment complex, where he observed a number of .40 and 9 mm. shell casings. The casings, which were clustered together by caliber, were collected as evidence. No witness to the shooting was found.
Rhonda Hardy testified that in December 2004 she lived at Woods Manor. She was friendly with Daniels and Gordon; her brother Steve was also a friend of Gordon’s. Hardy also knew Sean McClelland, who was dating Gordon’s sister, and who was often seen with Gordon.
Hardy testified that one evening in mid-December, Daniels and Gordon were at her apartment and she heard Daniels talking on the telephone to McClelland, telling him to come to one of the Woods Manor apartments “to come pick up the gun.” Gordon left, then called the apartment and spoke to Daniels. Gordon returned, picked up Daniels—who put on “one of those pull-over hats”—and the two then left. Hardy testified that she saw Daniels and Gordon wait for McClelland. Each had a gun. When McClelland appeared, “they just started shooting.” After McClelland staggered away, Daniels and Gordon stopped firing, and they ran from the scene.
That night, and again the next day, Gordon menacingly asked Hardy “what happened” and “what [did] I see.” Hardy replied “nothing” because she was scared. “He asked me did I see who it was, and I just told him no.” Gordon told Hardy “[D]on’t talk to the police. [¶] . . . [¶] They say they was killing everybody who was talking. Babies, mommas, kids, everything.” The day after the shooting Daniels dropped by Hardy’s apartment and threatened that “they would kill me, my mama, and my son” if she talked to police. In fact, “both of them,” that is, Daniels and Gordon, threatened to kill her if she spoke with police. Moreover, both Daniels and Gordon in essence moved into Hardy’s apartment and stayed for months, to ensure that she did not inform authorities of what she had seen.
Hardy testified about one occasion when one of the investigating officers came to her apartment while Gordon was there. Gordon would not allow Hardy to answer the knocking at the front door, and the officer left, after which Gordon remarked that “he could have shot him right then and there.” Hardy called the telephone number on the card left by the officer. She told him about the McClelland shooting because “they [Daniels and Gordon] was threatening me, and I got tired of it.” Daniels and Gordon not only threatened Hardy, they also threatened her teenage son, whom she told to stop visiting at her apartment.
After Hardy told the police, and suspecting that she had, Gordon threatened her that “if we find out that you have been talking to the police we are going to kill you, I’m killing mommas, I am killing daddies, I’m killing kids, it don’t matter. I’m killing everybody.” Hearing this, Daniels “just laid a gun on his lap.” Both Gordon and Daniels always carried a gun. Hardy further testified about overhearing Daniels and Gordon say that they shot McClelland the day before because they were convinced he was complicit in a shooting where Daniels was wounded, and because he was reputed to be bad-mouthing Daniels.
Hardy also testified that after she talked with police, she received communications from Daniels’s father, and even Hardy’s own brothers, one of whom is in San Quentin. These communications induced sufficient fear in Hardy that she was put in the Witness Protection Program, and is currently receiving approximately $400 per month for her living expenses. Hardy testified on cross-examination that she was a regular if not heavy user of drugs, who often got her drugs from Daniels or Gordon. Hardy testified that she talked to police to avoid Daniels and Gordon being killed by police trying to apprehend them.
David Wagner testified that on the afternoon of January 12, 2005, he was walking home from work. He was near the Parkside Market on Davi Avenue in Pittsburg when he noticed a white sedan stopped in the middle of the intersection. The car had three African-American male occupants, one driving and two in the back seat. Wagner further testified that he heard a “bang” and saw a man “falling.” The car then “took off” at high speed. Wagner called 911.
The man shot was Irving Griffin, who testified that on January 12 he and his cousin Dupree Straughter were approaching a market on Davi Street when he was shot in the back. Griffin never saw two men jump out of a white car, and he had no memory of being shot. Griffin knew Daniels because “[w]e was incarcerated in Byrons Boys Ranch;” he did not know Gordon. Griffin further testified he did not recall telling Officer Sullivan that he saw a white Buick speeding away from the scene. After he was taken to the hospital, Griffin told police there was no reason for him to attempt to identify who shot him because he did not see his assailants. Officer Sullivan, who spoke with Griffin at the scene of the shooting, and subsequently at the hospital, testified that he believed Griffin was evading answering his questions.
Officer Sullivan testified that Griffin did make such a statement, although the vehicle was identified as an Oldsmobile.
Derrick Blanche testified that he met with Griffin in the hospital after Griffin was shot. Griffin (who at trial did not recall talking to Blanche) was unable to identify who shot him. Blanche denied telling Officer Deplitch that Griffin had identified defendants. Officer Deplitch testified that Blanche told him that Griffin did identify defendants as his assailants.
Actually, Blanche did not use defendants’ real names, but their “street” names—“Dal” for defendant Daniels and “Jam” for defendant Gordon. These names were used by others throughout the trial.
Griffin’s cousin Dupree was a witness to the shooting. He testified that he was walking on the street with Griffin when his cousin saw something and “panicked.” They ran and hid behind a building waiting for, in Griffin’s words, “somebody to go by.” Straughter further testified that he and Griffin had resumed walking when they “heard gunfire” and Griffin was on the ground screaming for help.
Straughter further testified that after the shooting, Officer Blazer of the Pittsburg police “threw me straight in the back of a police car, and I sat there for a long time.” Straughter acknowledged that he told an officer that, before the shooting, Griffin had pointed to a number of persons and said “he had problems with” them. The persons then got into a white car, but by then Straughter and Griffin were behind the building. Straughter did not see the white car again. Straughter did not identify the occupants beyond saying that they were from the “El Pueblo” area of Pittsburg. Straughter testified that he was not trying to be uncooperative, but that he was in shock.
Officer Blazer described Straughter immediately after the shooting as being “very evasive with any forthcoming information.”
Paul Fordyce and Steven Kaiser testified about a shooting incident they observed on January 12, 2005. They were stopped in separate cars at a stop light on Somersville Road in Pittsburg, when they saw Daniels emerge from a white two-door American-made vehicle waiting for the light. Both testified that they observed Daniels walk over to a brown-colored vehicle, produce a gun, and fire five to six shots, disintegrating the rear window. When the brown car drove away, Daniels ran back to the white car, which quickly left the scene.
The white vehicle was possibly Martinez’s stolen two-door Buick. Fordyce testified that the white car he saw was an Oldsmobile, while Kaiser remembered it as “either a Buick or an Olds.” Fordyce testified that Daniels was wearing a camouflage jacket and a black wool knit cap. Kaiser recalled the cap as a dark-colored “ski cap,” and the coat as merely “bulky” and unzipped.
Although both Fordyce and Kaiser made positive identifications of Daniels at trial, this differed from how they behaved immediately after the shooting. Kaiser was willing to look at a photo lineup, and identified Daniels. But Fordyce would not, because he did not want to get involved.
A number of shell casings recovered at the scene were subjected to ballistic analysis and determined to have been fired from the same .40 Smith and Wesson pistol used in the McClelland shooting. From photographs of Gordon holding a Sig/Sauer pistol and a Smith and Wesson revolver, an expert testified that either of these weapons could have fired the .40 cartridges. Hardy gave to police a box of Smith & Wesson .40 calibre ammunition at the scene left at her apartment by defendants. The box had blood on it.
Daniels was arrested on January 29, 2005 after the car he was in was stopped for speeding. A black knitted cap was found in the car.
Tiffany Hart testified that she was friendly with Gordon and Daniels. She had seen Daniels and Gordon carrying guns, but not during January 2005.
Hart was interviewed by Officer Deplitch on January 25 and February 15, 2005, and her version at trial was that she did not tell Deplitch that: (1) she saw Daniels, Gordon, or an individual named Alvin Harvey on January 12; (2) Daniels and Gordon were in possession of handguns on that date; or (3) Daniels and Gordon carried guns on a daily basis. With little warning, Hart blurted out that everything she had told Deplitch was untrue.
This admission came after Hart suddenly announced that she would answer no more questions. The court ordered her to answer questions and allowed the prosecutor to treat her as a hostile witness. Hart then resumed answering questions, for a while, and then again announced “I am not answering shit.”
With the aim of introducing everything Hart had said to Deplitch, the prosecutor then marched through a series of “When you told Detective Deplitch that . . ., that was a lie?” questions. Hart admitted that she still wrote letters to Gordon and visited him in jail. Hart further testified that she told Deplitch nothing at the February 15 interview about the Griffin shooting or the events of January 12. Hart concluded her direct examination by testifying that there was no way she would have voluntarily come to court.
The parties stipulated that in the several months prior to trial Hart had written letters to Gordon in which she had called herself Gordon’s “wife.”
On cross-examination, Hart testified that she was told by Deplitch that if she testified “he would help me with a case . . . that I have” (possibly a reference to a pending prostitution charge). However, she admitted that it was she who approached Deplitch; he did not come to her. Hart further testified that many of the things she had said to Deplitch were motivated by anger at Gordon, whom she nevertheless loved.
Officer Deplitch then took the stand and authenticated the videotape made of his January 25 interview with Hart. The tape was played for the jury and later admitted in evidence. On the tape, Hart told Deplitch that McClelland had told her that he was shot by Daniels and Gordon. When Hart asked Gordon if this was true, Gordon admitted that it was, that he and Daniels shot McClelland because he was believed responsible for getting Daniels shot in Richmond. As for the shooting of Griffin, Hart told Deplitch that on January 12, she, Daniels, Gordon, and Harvey were riding in a white sedan (variously described by Hart as a Buick or an Oldsmobile), with Daniels wearing a black knit cap. Daniels and Gordon saw two men (presumably Griffin and Straughter) walking on the street, and Daniels and Gordon resolved to shoot Griffin. Apparently, it was the noise of Daniels accidentally dropping his gun on the street that caught Griffin’s attention and caused him to run. Daniels and Gordon returned to the vehicle and began driving around, looking for Griffin, with Daniels and Gordon both saying “We gonna get them.” When they spotted Griffin, Gordon drove the car at him. Gordon told Daniels “Shoot him.” After Daniels shot Griffin in the back, Daniels and Gordon laughed about the shooting as they drove away.
Daniels did not testify or present any evidence.
The sole witness called by Gordon was Pittsburg Police Officer Ligouri who testified that she was one of the officers who investigated the Griffin shooting. Officer Ligouri testified that she spoke to a witness named Amber Wheeler, who told her that three black men in a white Buick were responsible for the shooting. Wheeler heard only a single shot. According to Officer Ligouri, Wheeler recounted that she asked Straughter who shot Griffin, and Straughter replied he did not know.
DISCUSSION
DANIELS’S APPEAL
The Carjacking And Robbery Convictions Are Supported By Substantial Evidence
The crime of robbery is statutorily defined as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.) The crime of carjacking covers “the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, . . . against his or her will. . . accomplished by means of force or fear.” (§ 215, subd. (a).) Thus, conviction of either offense requires proof of force or fear, and the jury was so instructed.
Daniels first contends that his convictions for robbery and carjacking of Martinez cannot stand because they are not supported by substantial evidence that the takings were accomplished by force or fear.
Daniels summarizes his view of the evidence in his brief as follows: “On December 1, 2004, Martinez was walking to his car with his cell phone and keys. He saw appellant approaching him, accompanied by another man. As they approached, Martinez heard one of the two tell him to hand over his cell phone and keys. Martinez said nothing in response, simply handing over the requested items. He then turned and walked away. He did not see where the two men went thereafter. He reported the incident later that day. [¶] Martinez was not asked and never testified that he gave the cell phone and keys to appellant or his companion because of any force used upon him. Martinez was not asked and did not testify that he gave up the items because he felt fear of appellant or his companion. During the incident, he said he saw a gun somewhere (he was not asked for more detail by the prosecution), but specifically denied that either man had a gun in hand or that anyone had pointed a gun at him. Absolutely no evidence was offered that suggested that any gun had been actively displayed or otherwise used to obtain the cell phone, car and keys. The jury acquitted defendant of the ‘use of a gun’ in the commission of both counts . . . .”
This is a selective view of Martinez’s testimony. Granted, Martinez was a little vague in particulars. He was asked on direct examination did either of the men “have a gun in their hands,” to which he answered “I just remember seeing a weapon I saw.” Martinez did not remember which of the two men “had the weapon,” but he described the weapon as “a gun.” He was then asked “And did anyone say anything to you?” He answered “I just remember demanding for my keys and my phone.” He did not remember whether it was Daniels or the other man who made the demand.
On cross-examination by Daniel’s counsel, Martinez was asked: “Q. It’s true, is it not, that Mr. Daniels never pointed a gun at you that day; isn’t that true?
“A. True.
“Q. He did not point a gun at you?
“A. . . . I don’t remember who had the gun in their possession.
“Q. Do you remember—now, listen to my question.
“A. Uh-huh.
“Q. Isn’t it true that Mr. Daniels did not point any gun at you?
“A. It is true.”
The prosecutor then asked a single question on redirect: “Q. Mr. Martinez, you have just testified that you can’t remember whether the gun was in Mr. Daniels’s hands or . . . the other man’s, that’s the truth, isn’t it? [¶] A. True.”
A crime victim’s inexactitude in recollecting events laden with potential violence is a matter the law accepts. “In the words of Justice Holmes, ‘Detached reflection cannot be demanded in the presence of an uplifted knife.’ ” (People v. Humphrey (1996) 13 Cal.4th 1073, 1094, quoting Brown v. United States (1921) 256 U.S. 335, 343.) On the crucial point that Daniels emphasizes, all Martinez stated with certainty is the Daniels did not “point a gun” at him. Martinez did not categorically state that it was not Daniels who either had the gun in his hand—but did not point it—or otherwise displayed it to Martinez. But even if it was the other man who had the gun, this fact does not avail Daniels because he was clearly a principal to the crime—and thus no less culpable. (§ 31.)
Daniels might as well focus upon Martinez not testifying that he actually saw the men drive off in his car, yet it is undisputed that Daniels was seen driving Martinez’s car ten days later. Daniels also makes the almost specious argument that “since Martinez knew appellant . . . Martinez had no sense of menace in dealings with appellant.” According to this logic, Martinez would hardly have made an immediate report to the police that his car had been stolen.
Daniels elides over the fact that Martinez testified that he was the recipient of a “demand” that he surrender his cell phone and keys. It a reasonable inference that the weapon was displayed at or before the demand was made, thus giving the demand the potency to ensure submission. And Martinez expressly testified that he did not give permission to the men to take his vehicle, or his keys, or his cell phone.
“Although the victim need not explicitly testify that he or she was afraid in order to show the use of fear to facilitate the taking [citation], there must be evidence from which it can be inferred that the victim was in fact afraid, and that such fear allowed the crime to be accomplished.” (People v. Mungia (1991) 234 Cal.App.3d 1703, 1709, fn. 2.) Fear may be inferred from the circumstances (People v. Holt (1997) 15 Cal.4th 619, 690), and “[c]ircumstantial evidence alone is sufficient to support a finding that an object used by a robber was a firearm.” (People v. Monjaras (2008) 164 Cal.App.4th 1432, 1436.) The conclusion that the transfer was involuntary and the result of implied coercion was within the jury’s power to draw. The jury’s conclusion that constructive force or fear was applied to Martinez is supported by substantial evidence.
The Trial Court Did Not Err In Not Instructing On Theft As A Lesser Included Offense Of Robbery
Theft is ordinarily treated as a lesser included offense of robbery. (E.g., People v. DePriest (2007) 42 Cal.4th 1, 50.) Thus, if there is substantial evidence from which the jury could conclude that a charged offense of robbery was actually only larceny, the trial court has the independent obligation to instruct the jury on the lesser offense. (Ibid., citing People v. Breverman (1998) 19 Cal.4th 142, 154.) Daniels contends that the trial court erred to his prejudice when instructing on robbery by not giving the jury the opportunity to convict him of the lesser included offense of larceny of personal property from Martinez. We are not persuaded.
“[T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser included offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is ‘ “evidence from which a jury composed of reasonable [persons] could . . . conclude[]” ’ that the lesser offense, but not the greater, was committed.” (People v. Breverman, supra, 19 Cal.4th 142, 162.) “ ‘[I]f there is no proof, other than an unexplainable rejection of the prosecution’s evidence, that the offense was less than that charged, such instructions shall not be given.’ ” (People v. Abilez (2007) 41 Cal.4th 472, 514, quoting People v. Kraft (2000) 23 Cal.4th 978, 1063.)
As shown in the preceding discussion, we conclude that the evidence was sufficient to support the jury’s conclusion that force or fear was used to obtain possession of Martinez’s property. And Daniels cannot articulate a version of the evidence that would logically permit the jury to conclude that Daniels committed theft, but not robbery. Put another way, there is no scenario by which Daniels could come into possession of Martinez’s car keys and cell phone that can be divorced from the element of force or fear.
Granted, in light of the jury’s refusal to find true the enhancement allegations that Daniels personally used a firearm, we must accept that Daniels did not hold or use a weapon in a manner that satisfied the definition of personal use. But only an explainable rejection of the prosecution’s evidence could turn a robbery into simple theft. The only evidence of the robbery was the uncontradicted testimony of the victim, Martinez, who never changed his testimony that there were two men, one of whom had a gun which was shown to him. Martinez never admitted the possibility that he was mistaken in his recollection that a “demand” for his possessions was made by one of the two men. And he was adamant that Daniels was one of the two men.
All of this testimony must be accepted unless Daniels is forced to rely on a theory of an unexplainable rejection of parts of Martinez’s testimony. Daniels cannot posit a scenario where Martinez was approached by only one man, who was not Daniels, and where there was no weapon and no demand that Martinez surrender his property. Thus, there was no substantial evidence that would have supported a conviction for theft, but not for robbery, and consequently no sua sponte obligation to instruct on theft. (People v. Abilez, supra, 41 Cal.4th 472, 514; People v. Breverman, supra, 19 Cal.4th 142, 162.)
There Was No Abuse Of Discretion In Admitting The Rap Lyric Found in Daniels’s Cell
After trial had begun, jailers made a search of Daniel’s cell and found several handwritten pages of his. The trial court determined that the material was relevant, and that its probative value substantially outweighed any prejudicial impact it might have. Daniels contends that ruling was an abuse of the discretion granted the trial court by Evidence Court section 352. We disagree.
We do not have before us the original version of the material found in Daniels’s cell. What was read to the jury—with minor editorial changes added to aid comprehension—was as follows:
“These Niggas be working wit the D.A. and investigators. They scared of me because I pack big pistols and I ain’t scared to blap a hater. I am tired of the pain. My life always feels like a struggle. I’m on a mission to bubble. I got the ball in my hands and I ain’t going to fumble. You Niggas think I’m cool, but don’t let this smooth taste fool ya.
“I’m that Nigga that is quick to pull that Ruger. I ain’t talking about six shots, I’m talking about 30. Pop my shit off . . ., and it time to get it dirty. Always flirty wit a bitch wit big hips and tits. I jus want to be rich. Eat lobster and wear expensive shit. You Niggas tried to take my life, but didn’t succeed. What goes around comes around. Thought it would—it was cool, but got 40 ass hit wit about eight rounds. Screaming like a bitch, trying to plead you case now. Ain’t no talking, just killing Niggas. Got me on one now. Caught a Nigga at the store that was running his mouth a few months ago. But now the table’s turned, it’s him on the other end now. And me behind the gun. He saw me, the Nigga tried to run. Pow one shot was released from my gun. Now he lay in the street begging for his life. Too late, now you should have thought twice. I tell the real life, I tell the real shit, nothing fake in my raps. Never trust a bitch, she’ll have you rapped up. Sent off doing life I keep my shit on my hip. Ain’t no telling who try and test my .357 Sig . . . guaranteed to split a Nigga wig. HK-93 is the problem solva. Only automatics, no revolver. So I say it again, fuck you mama and all you ken. You talk a good game, but I see right through you all. Just let these 40 cal shots go right through ya.
A firearms expert testified that Sig/Sauer manufactures a handgun that can fire the .357 cartridge, and that an HK-93 is .223 calibre “semiautomatic gas operated rifle.”
“I pray to God every day to let me out of these four walls. The whole town mad at me. Haters want to see me fall. They say I’m outta control. Want me sent to the pen and let me out on parole. Who can I trust is that question.
“Youself is what I can go. Which way can I die. I try not to cry because I have too much pride. They put me in a cage away from the street. They say I’m wild because them suckas I defeat. Stressed out sitting on my bunk thinking to myself I just wanted a few bucks. I ask myself is this a dream. But when I see these four walls I know it’s reality. Trust no one because you’ll end up a casualty. In this game come up a statistic. Fuck wit me or family and get your wig split. I try not to sin, but it just keeps on happening. Just like my gun keeps on clapping. El Pueblo projects that’s where I’m from. All my life raised around coke and guns. Yeah it was fun I can say that, but when it’s time to put on all your black you better be ready to bust yo gat.
“I get caught, you get caught, matter say it’s a rap. Win trial, I guarantee we’ll be back. Fat sack on my lap right beside my gat. Paint shining, rim spinning, when I pass through the street middle fingers in the air wit . . . . Yeah, the same Niggas suckas can’t be. So as I say just keep it street. ”
After hearing argument, the trial court ruled that the evidence could be used. The court’s thoughtful ruling deserves to be quoted at length:
“I’m relying on People v. Olguin . . . 31 Cal.App.4th, 1355, pages 1372 through 74, a very similar case. [¶] And People v. Gibson . . . 90 Cal.App.4th, . . . 371, page 383.
“I reviewed the letters carefully for relevance, probative value and prejudicial effect, and I find they contain a great deal of probative information. Specifically, the statement that Mr. Daniels is . . . from the El Pueblo Project, which is consistent with the evidence in this case.
“The reference to people working with the D.A. investigators in this case . . . [is] directly relevant to this case, and a specific description of what appears to be the shooting of Mr. Griffin. That is, putting one bullet in his back, and he tried to run and one shot was released from my gun, now he is in the street begging for his life. That entire portion of the writings is specifically relevant to this case, is in my view an admission of the conduct that is alleged here.
“So the probative value is very high, and also is relevant to motive, intent and intent that the acts were committed with.
“Compared to prejudicial value in light of the evidence in this case, I don’t think that these writings add much in the way of prejudicial value.
“I do believe that they are admissible only against Mr. Daniels, because they are not statements in furtherance of a conspiracy. [¶] Therefore, . . . I will [instruct] the jury that they are not to be considered against Mr. Gordon.
“There are two portions of the letters that I believe have to be redacted under Bruton. [¶] First is . . . on the third page of the copy I have . . . [where] it referred to driving in the street with my—using the ‘N’ word, in the passenger seat with his hand on his heat, I think has to be redacted because it is arguably a reference to Mr. Gordon.
“And, secondly, on the . . . second to last page in the middle of the description on the apparent shooting of Mr. Griffin it says he hit one of my closest, again using the ‘N’ word, in my view is in light of the fact that Mr. [Griffin] had previously been shot, although not by Mr. [Gordon], that that is too close of a reference to Mr. [Gordon] under Aranda and Bruton . . . . [T]hey must be redacted so there is no potential use against Mr. Gordon against who[m] these letters are not admissible.
“With those redactions I think the probative value very substantially outweighs the prejudicial effect.
“On the issues of interpretation, that is again a matter of proof by the People. They call an expert or a person who is qualified to render an opinion on the issue, then the remaining arguments that [Daniels’s counsel] made are appropriate for cross-examination and argument to the jury as to the weight to be given to these statements, but they do not make the statements inadmissible.”
We conclude that the trial court did not abuse its discretion under section 352: the probative value of the evidence was not substantially outweighed by its prejudicial effect.
“ ‘[A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including one that turns on the relative probativeness and prejudice of the evidence in question [citations]. Evidence is substantially more prejudicial than probative (see Evid. Code, § 352) if, broadly stated, it poses an intolerable “risk to the fairness of the proceedings or the reliability of the outcome” [citation].’ ” (People v. Jablonski (2006) 37 Cal.4th 774, 805.)
The “undue prejudice” mentioned in Evidence Code section 352 has a distinct meaning. It refers to evidence “ ‘that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues.’ ” (People v. Samuels (2005) 36 Cal.4th 96, 124, quoting People v. Crittenden (1994) 9 Cal.4th 83, 134,) It is not synonymous with evidence that is merely damaging to the defendant. (People v. Bolin (1998) 18 Cal.4th 297, 320.)
Daniels’s trial counsel opposed admission on the ground that the material was reflective of a large segment of “black culture” and Daniels’s own “cultural background.” They were symptomatic of nothing more that “innumerable [tapes] on the market as to this type of inference as to guns, police activity,” he argued, and did not qualify as true admissions. Putting the evidence before the jury would permit the jury to move from “generalities” and “historical . . . prejudices that have been induced on black people” to a specific vote of guilty against Daniels.
Daniels also unsuccessfully claimed that the material should be excluded because the warrantless search of his cell was improper. He does not renew this claim here.
Daniels adopts a slightly different tack on appeal. It is this: “The circumstances presented here required the exclusion of the evidence, and had the court conducted the proper weighing of probative value versus prejudicial impact, it would have agreed. The Exhibits were only in small part relevant: only a few sentences made elliptical references to witnesses, a ‘nigga’ at a market, and a housing project possibly involved in the case. The issue of identity was obviously of great materiality in general to the case, but the Exhibits were utterly unnecessary to this issue, since by the time the prosecution sought admission of the rap writings the jury had eyewitness testimony identifying appellant as the shooter of Griffin and McClelland by two women present at the scenes of these shootings, and had been identified by two strangers as the man who shot into a car on Somersville Road using a gun which had also been used in the McClelland shooting. One witness had also testified to appellant’s admission to the shooting of Griffin, and to a substantial motive for it. The points found relevant by the court—the description of appellant’s background from El Pueblo and the description of ‘nigga’ near a market—were thus entirely cumulative to the numerous other much more specific admissions made to witnesses and the onslaught of evidence from eyewitnesses to the crimes. In sum, the probative value of the two Exhibits was minimal, given the accurate assessments of overall relevancy, materiality and necessity.
“On the other hand, the court’s ruling failed to properly comprehend how truly malignant the Exhibits were. The court concluded that since there had been evidence of threats made to witnesses Hardy and Hart, the Exhibits were just ‘more of the same’ and therefore did not pose any more pressing potential for prejudice. But this conclusion ignored many aspects of the Exhibits’ prejudicial impact which were more likely to render a jury emotionally biased against appellant. The Exhibits portrayed a person whose determination to wreck havoc with a gun was undiminished by his prosecution and would continue upon his release—no juror could but conclude that the narrator in the Exhibits posed a threat to society if he were ever to be released rather than just to those persons who had turned state’s evidence. Thus, the Exhibits could only induce a strong commitment in a jury to keep appellant jailed regardless of doubts as to the credibility of the witnesses. Without question, the two Exhibits generated an awesome force for ill-will toward appellant, stemming from the criminal attitude and propensity for violence described in the lyrics.”
The argument that the material should not have been admitted because it was merely cumulative ordinarily would be disregarded because it was not made in the trial court. (Evid. Code, § 353, subd. (a); People v. Kennedy (2005) 36 Cal.4th 595, 612; People v. Boyette (2002) 29 Cal.4th 381, 424.) We will relax this rule here, because demonstrating the distinct relevancy of the evidence will also defeat Daniels’s argument that the evidence was cumulative.
Taking the material at face value, it clearly—as the trial court concluded—qualified as an admission within the meaning of Evidence Code section 1220. The material did not have to be viewed solely as an abstract statement of “gangsta” culture. The details set forth in the lyrics were sufficiently close to the evidence of the crimes that lyrics could be viewed as autobiographical. That made it an admission, and thus eminently relevant. (People v. Lewis (2008) 43 Cal.4th 415, 497; People v. Horning (2004) 34 Cal.4th 871, 898, fn. 5.) And, as an admission from Daniels himself, it obviously had a greater probative value than the other incriminatory sources identified by Daniels in his brief.
As for prejudice, the argument that the lyrics were simply an expression of a different “cultural background” does not necessarily mean their admission would inure to Daniels’s prejudice. Trial counsel himself conceded that rap could be heard on “innumerable [tapes] on the market.” It is almost a matter of judicial notice that “rap” music, even the subgenre of “gangsta rap,” are the bread and butter of a large part of the current pop music scene. It is sufficiently common that it would be hardly likely to evoke such revulsion from a jury that it would condemn Daniels out of hand.
Most assuredly do we not agree with Daniels that the trial court “failed to properly comprehend” the material or failed to conduct “the proper weighing of probative value versus probative impact.” On the contrary, the trial court’s conscientious ruling shows that it had total command of the evidence admitted to that point. Having heard that evidence, the court was best placed to evaluate its overall import and impact.
Our conclusion is the same as that expressed by the Court of Appeal in People v. Olguin (1994) 31 Cal.App.4th 1355, 1373: “The mere fact the lyrics might be interpreted as reflective of a generally violent attitude could not be said ‘substantially’ to outweigh their considerable probative value. It looks to us like the trial court got it right; certainly it has not been shown there was any abuse of discretion.” That expression is a fortiori applicable here: The passage of fourteen years has seen the shock value of such lyrics decrease in direct correlation to their dissemination throughout the general culture.
GORDON’S APPEAL
Gordon Has Not Shown Prejudice From His Trial Counsel’s Failure To Object To Any Aranda-Bruton Error
Gordon first contends that he was the victim of Aranda-Bruton error when the jury heard hearsay testimony from Hardy about a statement made by defendant Daniels concerning the attempted murder of Griffin.
The legal principle commonly abbreviated as Aranda-Bruton is based on a criminal defendant’s rights of confrontation and cross-examination. Our Supreme Court explained the matrix of the principle:
“A recurring problem in the application of the right of confrontation concerns an out-of-court confession of one defendant that incriminates not only that defendant but another defendant jointly charged. Generally, the confession will be admissible in evidence against the defendant who made it (the declarant). (See Evid. Code, § 1220 [hearsay exception for party admissions].) But, unless the declarant submits to cross-examination by the other defendant (the nondeclarant), admission of the confession against the nondeclarant is generally barred both by the hearsay rule (Evid. Code, § 1200) and by the confrontation clause (U.S. Const., 6th Amend.). If the two defendants are tried together, the court may instruct the jury to consider the confession in determining the guilt only of the declarant, but it may be psychologically impossible for jurors to put the confession out of their minds when determining the guilt of the nondeclarant. The United States Supreme Court has held that, because jurors cannot be expected to ignore one defendant’s confession that is ‘powerfully incriminating’ as to a second defendant when determining the latter’s guilt, admission of such a confession at a joint trial generally violates the confrontation rights of the nondeclarant. (Bruton v. United States[, supra, ] 391 U.S. 123, 126-127.) Earlier, this court had reached a similar conclusion on nonconstitutional grounds. (People v. Aranda (1965) 63 Cal.2d 518, 528-530.)” (People v. Fletcher (1996) 13 Cal.4th 451, 455, fn. omitted.)
The court made it clear that that it was using the term “confessions” to extend also to partial admissions of guilt. (People v. Fletcher, supra, 13 Cal.4th 451, 455, fn. 1.)
Gordon’s Aranda-Bruton issue arose in the following circumstances:
On direct examination, the prosecutor, Ms. Knox, asked Hardy:
“Q. Ms. Hardy, did either Dal [Daniels] or Jam [Gordon] talk to you about a shooting on Davi Street?
“A. Darryl did.
“Q. And when he talked to you about that shooting, did that conversation take place the day after the shooting?
“A. Yeah.
“Q. Okay. Where did you talk to him about that?
“A. Outside . . . [¶] . . . [¶] In the parking lot . . . [¶] . . . [¶] [of] Woods Manor.
“Q. And what did Darryl tell you about the shooting that happened on Davi Street?
“A. Him, Alvin, Tiffany and Jam
“MR. SIINO [counsel for Daniels]: Objection, hearsay.
“THE COURT: Ms. Knox.
“MS. KNOX: Your Honor, it’s [a] statement made by a co-conspirator during the pendency of that conspiracy admitting to the crime.
“THE COURT: Okay. Anything further, Mr. Siino?
“MR. SIINO: No conspiracy charge, Your Honor.
“THE COURT: I understand. [¶] The objection is overruled, the charge is not required.
“BY MS. KNOX:
“Q. What did Darryl tell you about the shooting that happened on Davi Street?
“A. Him, Jam, Tiffany—Alvin shot some dude over on Davi.
“[¶] . . . [¶] Q. And when the shooting happened were the four of them on foot or were they in some sort of vehicle?
“A. A white Buick.”
“[¶] . . . [¶] Q. Okay. And did Dal tell you why he shot Irving Griffin?
“A. No.
“Q. Do you recall talking to Detective
“MR. SIINO: Objection, move to strike. Presumes—calls for a conclusion and fact not in evidence.
“THE COURT: What does?
“MR. SIINO: Why he shot someone. There is no evidence as to who—anybody shooting anybody.
“[¶] . . . [¶] THE COURT: I may have got it wrong, so if you want to
“BY MS. KNOX:
“Q. Okay. Did Darryl tell you who shot the guy on Davi Street?
“A. He did.
“Q. Darryl shot the guy on Davi Street, And he was with
“A. Jam
“Q. Jam
“A. Tiffany and Alvin.
“Q. Okay. Did Darryl tell you why he shot that guy?
“A. No.
“[¶] . . . [¶] Q. Do you recall telling Detective Deplitch that Darryl told you that they shot the guy on Davi Street . . . because that guy had, quote, unquote, been in Darryl’s business?
“A. Yeah.
“Q. Okay. And do you also . . . recall Darryl telling you anything that had happened involving this victim before that shooting?
“A. No.
“Q. Do you recall telling Detective Deplitch that Darryl had told you that he and Jam had shot that same guy
“A. Oh, before
“Q. —in the
“A. —yeah.
“[¶] . . . [¶] Q. Okay. So Darryl did tell you that he had shot the same guy
“A. Yeah, before.
“[¶] . . . [¶] Q. Did Darryl tell you that the guy they shot on Davi Street hadn’t learned the first time so they had to shoot him again?
“MR. KELLY [counsel for Gordon]: Objection, leading.
“[¶] . . . [¶] THE COURT: Overruled, I’ll permit it.
“THE WITNESS: Yeah.”
Gordon necessarily concedes he did not make the specific and contemporaneous objection required by Evidence Code section 353, subdivision (a) to preserve the issue of the allegedly erroneous admission of evidence for review, as the “leading” objection by Gordon’s counsel cannot be read to advise the trial court of an Aranda-Bruton problem. Gordon nevertheless argues that “Given the court’s ruling on Daniels’s objection, an additional objection from Gordon was unnecessary.” He asserts that “Daniels timely objected to the evidence at issue under the hearsay rule,” at which point “the duty of affirmative action shifted to the prosecution.” Not so. Gordon cannot now associate himself for the first time with Daniels’s objection (e.g., People v. Sanders (1990) 51 Cal.3d 471, 508; People v. Brown (1980) 110 Cal.App.3d 24, 35), especially as there is specific precedent from our Supreme Court that an Aranda-Bruton objection is not preserved for review unless precisely articulated to the trial court. (E.g., People v. Hill (1992) 3 Cal.4th 959, 994-995; People v. Mitcham (1992) 1 Cal.4th 1027, 1044; People v. McGautha (1969) 70 Cal.2d 770, 785.)
Gordon then argues, relying upon People v. Partida (2005) 37 Cal.4th 428, that his objection was sufficient to preserve his Aranda-Bruton claim for review. In Partida, the trial court admitted evidence of the defendant’s gang involvement over his objection that the evidence was more prejudicial than probative. On appeal, the defendant argued for the first time that the trial court’s overruling of his Evidence Code section 352 objection violated his federal due process rights. The Supreme Court held that the objection was not sufficient to include the new due process argument: “On appeal, defendant may argue that the court erred in its ruling. But he may not argue that the court should have excluded the evidence for a reason different from his trial objection. If he had believed at trial, for example, that the trial court should engage in some sort of due process analysis that was different from the Evidence Code section 352 analysis, he could have, and should have, made this clear as part of his trial objection. He did not do so. Accordingly, he may not argue on appeal that due process required exclusion of the evidence for reasons other than those articulated in his Evidence Code section 352 argument.” (Id. at p. 435.)
We do not understand how Partida favors Gordon. On the contrary, to invoke it seems to underscore the applicability of the traditional waiver analysis. The only objection made by Daniels was that the testimony the prosecutor was seeking to elicit was “hearsay.” The hearsay rule, and its myriad of exceptions, is not shorthand for an Aranda-Bruton objection. To cite only the most obvious difference, Aranda-Bruton only applies in the far less common setting of a trial involving more than one criminal defendant, one of whom has made a statement that incriminates not only himself or herself, but also incriminates a codefendant. Another significant difference is that the judicial responses are very dissimilar. With a hearsay objection, the evidence either is admitted or it is excluded. But with Aranda-Bruton, the evidence may be admissible only if the trial court can alter the evidence by redacting its constitutionally objectionable parts, or, if that is not possible, by ordering separate trials. (See People v. Aranda, supra, 63 Cal.2d 518, 530-531.) A simple hearsay objection would hardly alert a trial court that these consequences might loom. In the language of Partida, such an objection would clearly require an analysis very different from that resolving an Aranda-Bruton objection. (People v. Partida, supra, 37 Cal.4th 428, 435.)
In light of the foregoing, we conclude there is no basis for relaxing the requirement that a specific and contemporaneous objection at trial is required to preserve for review a claim that evidence was erroneously admitted. Because Gordon did not make anything that can reasonably be interpreted as an Aranda-Bruton objection, he cannot make a direct attack on a ruling the trial court was not asked to make. (E.g., People v. Rowland (1992) 4 Cal.4th 238, 259; People v. Lilienthal (1978) 22 Cal.3d 891, 896.)
Anticipating that we would reach this conclusion, Gordon reframes the issue as one of his trial counsel’s incompetence for not making a sufficient objection that would have preserved the Aranda-Bruton issue for appeal. This is allowed. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 82.)
“ ‘In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it “fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms.” [Citations.] Unless a defendant establishes the contrary, we shall presume that “counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.” [Citation.] If the record “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 unless there simply could be no satisfactory explanation.” [Citations.] If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” [Citation.]’ ” (People v. Lopez (2008) 42 Cal.4th 960, 966 (Lopez); accord, People v. Salcido (2008) 44 Cal.4th 93, 152.)
The statements made by Daniels clearly qualify as admissions, and are thus admissible against him. (Evid. Code, § 1220; People v. Lewis, supra, 43 Cal.4th 415, 497; People v. Horning, supra, 34 Cal.4th 871, 898, fn. 5.) However, because certain of the statements incriminate Gordon, they would not be admissible against him under Aranda-Bruton. We therefore presume that reasonably competent counsel would have raised an Aranda-Bruton objection and sought to have Daniels’s statements redacted to delete reference to Gordon. Nevertheless, we conclude the omission was not prejudicial.
Citing Crawford v. Washington (2004) 541 U.S. 36, the Attorney General argues that there was no confrontation problem because Daniels’s statements were not testimonial. Our Supreme Court appears to have rejected this argument:
The clear import of the statement had Daniels confessing that he shot Griffin because Griffin had interfered “in Darryl’s business.” Gordon was present, but he was not identified as taking an active role. On the other hand, this incident is stated to be the second attempt on Griffin, and Gordon is tied to that shooting as well. But the few, often elliptical references to Gordon pale in comparison to the impact of Tiffany Hart’s recorded interview with Office Deplitch, where Hart—who was an eyewitness—described in detail Gordon’s part in the Griffin shooting. In addition, the testimony of Officer Deplitch had Griffin himself fingering Gordon as one of his attackers. We believe that this evidence would have much greater heft with the jury. Thus, deducting the scattered references to Gordon in this part of Hardy’s testimony still leaves ample evidence of guilt. Accordingly, we conclude that Gordon has not shown that this omission was prejudicial, that is, that there is a reasonable probability of a more favorable result. (Lopez, supra, 42 Cal.4th 960, 966.)
Gordon Has Not Shown That His Trial Counsel Provided Constitutionally Ineffective Assistance of Counsel By Failing To Object During Direct Examination Of Witness Blanche
Gordon’s second claim of trial counsel incompetence must be viewed against two excerpts of testimony elicited by the prosecutor in direct examination of two of witnesses in her case-in-chief. The first witness was Blanche, who, it will be recalled, met with Griffin in the hospital after he was shot, and who talked with Officer Deplitch. The parts of Blanche’s testimony about which Gordon complains have been italicized:
“Q. And did you tell Detective Deplitch that you had known both Charles Gordon and Darryl Daniels for about ten years, and that you commonly referred to them by their street names Dal and Jam?
“[¶] . . . [¶] A. Right . . . .
“Q. And did Detective Deplitch then ask you why you had specifically asked if Irving Griffin—if Dal and Jam were the people that shot him?
“A. I didn’t ask him.
“MR. SIINO [counsel for Daniels]: Objection, leading, your Honor. [¶] Uhmm, may I approach, Your Honor?
“THE COURT: Yes.
“(Discussion at bench, not reported)
“THE COURT: The last objection is overruled.
“BY MS. KNOX:
“Q. Did Detective Deplitch ask you specifically why you asked Irving Griffin if Dal and Jam had shot him?
“A. I didn’t ask him that.
“Q. Okay. And then did you tell Detective Deplitch that Irving Griffin had told you that for about a month before the shooting he had been in several arguments with Darryl Daniels?
“A. Yeah.
“[¶] . . . [¶] Q. Okay. And did you also tell Detective Deplitch that your reason for asking if it was Dal and Jam that shot Irving Griffin was that you had heard on the streets that Darryl Daniels did not like Irving Griffin?
“A. No.”
The second witness was Officer Deplitch, and the relevant excerpts are as follows:
“Q. Did you ask Mr. Blanche why he specifically asked Irving Griffin if Dal and Jam had shot him?
“A. Yes, I did.
“Q. And what did Mr. Blanche tell you?
“A. He said his reasoning for this was based on the prior month to the shooting Irving Griffin had told him about numerous altercations that Irving had evidently been in with Darryl Daniels and Charles Gordon.
“Q. Did Mr. Blanche tell you that there was any other reason for him asking that question?
“A. Yes, he did.
“Q. And what did he tell you?
“[¶] . . . [¶] A. Because he had heard from subjects who he associated—associated with or a subject, he would not provide names, but had been told that they were the [ones] responsible.” (Italics added.)
“[¶] . . . [¶] BY MR. KELLY (counsel for Gordon):
“Q. Now, did Derrick tell you that someone had told him Dal and Jam were the responsibles?
“A. Yes, because when I specifically [asked] him why he specifically said the names of Dal and Jam.
“Q. And are you confident that he didn’t hear that from police personnel?
“A. Yes, I am.
“Q. Okay. And why are you confident of that?
“A. Because he tends to associate and hang out in the areas where Mr. Gordon and Mr. Daniels prior to this tended to frequent, and they knew a lot of the same people.
“Q. So you figured he heard it on the street sometime in the hours preceding your meeting with him?
“A. He told me that, yes.” (Italics added.)
Gordon argues that Blanche’s statements were riddled with hearsay that: (1) Blanche had been in several arguments with Daniels, (2) Griffin had had “numerous altercations” with Daniels and Gordon, and (3) people “on the street” were saying that Daniels and Gordon were “responsible” for Griffin’s shooting, and that those statements that should have drawn objections if his trial counsel had been competent. We do not agree.
Gordon’s trial counsel subsequently cross-examined Officer Deplitch about the basis for Blanche’s statement that Daniels and Gordon were the “responsibles” for the Griffin shooting. In doing so, counsel planted the suggestion that what actual knowledge Blanche had came from law enforcement, a point that merged with counsel’s suggestion that the prosecution had planted evidence that tainted the identification of Gordon made by robbery victim Audie Williams (see discussion post). The Attorney General has, we think, cogently captured counsel’s intent:
“Q. Now, did Derrick tell you that someone had told him Dal and Jam were the responsibles? [¶] A. Yes, because when I specifically [asked] him why he specifically said the names of Dal and Jam. [¶] Q. And are you confident that he didn’t hear that from police personnel? [¶] A. Yes, I am. [¶] Q. Okay. And why . . . are you confident of that? [¶] A. Because he tends to associate and hang out in the areas where Mr. Gordon and Mr. Daniels prior to this tended to frequent, and they knew a lot of the same people. [¶] Q. So you figured he heard it on the street sometime in the hours preceding your meeting with him? [¶] A. He told me that, yes.”
“[I]t is readily apparent that counsel for Gordon wanted to explore this area rather than foreclose it, and thus had a tactical reason for withholding objection . . . . [¶] The most damaging portion of Blanche’s statement was already properly before the jury, namely Blanche’s report that Griffin identified Daniels and Gordon as the assailants. That identification by Griffin was devastating because it fully confirmed Hart’s testimony describing the shooting. [¶] Defense counsel therefore had a strong incentive to suggest to the jury that Griffin did not identify Daniels and Gordon based on actually seeing them at the time of the shooting. Rather, counsel for Gordon wanted to plant the seed that Griffin merely assumed it was them based on his prior problems and based on the speculation on the street that Daniels and Gordon may have done it. By so doing, counsel was subtly attempting to transform Griffin’s identification from one based on an actual observation into one based on nothing more than Griffin’s speculation flowing from rumors on the street and prior disputes. This allowed counsel for Gordon to discount Griffin’s identification and focus his attack squarely on Hart as the only eyewitness, which is precisely what he did in closing.”
“If ‘counsel’s omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed.’ ” (People v. Diaz (1992) 3 Cal.4th 495, 557, quoting People v. Pope (1979) 23 Cal.3d 412, 425.) Moreover, it must be presumed that counsel’s decisions are within the realm of reasonable tactical choice unless the appellate record proves otherwise. (E.g., Lopez, supra, 42 Cal.4th 960, 966; People v. Weaver (2001) 26 Cal.4th 876, 925-926; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266 and authorities cited.) “ ‘It is not sufficient to allege merely that the attorney’s tactics were poor, or that the case might have been handled more effectively . . . Rather, the defendant must affirmatively show that the omission of defense counsel involved a critical issue, and that the omissions cannot be explained on the basis of any knowledgeable choice of tactics.’ [Citations.]” People v. Lanphear (1980) 26 Cal.3d 814, 828-829.)
Here, the record does show a reason for counsel’s omission that is well within the realm of reasonable tactical choice. In any event, given the state of the evidence against Gordon on this charge, we could not find the choice to be prejudicial.
Gordon Has Not Shown That His Trial Counsel Provided Constitutionally Ineffective Assistance of Counsel By Failing To Object To Alleged Misconduct By The Prosecutor
Prosecutorial misconduct can be judged according to differing federal and state standards. “ ‘A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such “ ‘unfairness as to make the resulting conviction a denial of due process.’ ” [Citations.] Under state law, a prosecutor who uses deceptive or reprehensible methods commits misconduct even when those actions do not result in a fundamentally unfair trial. [Citations.]’ ” (Lopez, supra, 42 Cal.4th 960, 965-966.)
Gordon contends that the prosecutor committed misconduct “in arguing facts not in evidence.” Gordon’s angle of attack is oblique, however, because only one instance of the purported misconduct drew a contemporaneous objection. To get past the waiver doctrine, Gordon is compelled to reframe the issue as his trial counsel’s incompetence for his failure to object.
“ ‘A defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the impropriety.’ [Citation.] A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel’s inaction violated the defendant’s constitutional right to the effective assistance of counsel. The appellate record, however, rarely shows that the failure to object was the result of counsel’s incompetence; generally, such claims are more appropriately litigated on habeas corpus, which allows for an evidentiary hearing when the reasons for defense counsel’s actions or omissions can be explored. [Citation.]
“ ‘In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it “fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms.” [Citations.] Unless a defendant establishes the contrary, we shall presume that “counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.” [Citation.] If the record “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 unless there simply could be no satisfactory explanation.” [Citations.] If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” [Citation.]’ ” (Lopez, supra, 42 Cal.4th 960, 966; accord, People v. Salcido, supra, 44 Cal.4th 93, 152.)
The ground selected by Gordon is hardly favorable to success. A trial attorney’s failure to object to inadmissible evidence or prosecutor’s improper argument is rarely proof of reversible ineffectiveness. (E.g., People v. Harris (2008) 43 Cal.4th 1269, 1290; People v. Maury (2003) 30 Cal.4th 342, 415-416, 419; People v. Avena (1996) 13 Cal.4th 394, 421.) And, again, Gordon must overcome the presumption that his trial counsel was acting within the range of reasonable tactical choice. (Lopez, supra, 42 Cal.4th 960, 966; People v. Weaver, supra, 26 Cal.4th 876, 925-926.)
Gordon cites two instances of his trial attorney acting below acceptable professional norms or competence. The first involves one of the not-so implicit threats to keep Hardy from telling what she knew. Hardy testified that she as at the home of a friend named Mary. Daniels was present. According to Hardy, “Five minutes later Jam [Gordon] called on the phone and it was like we know you been talking to the police . . . if we find out you have been talking to the police we going to kill you, I’m killing mommas, I’m killing daddies, I’m killing kids, it don’t matter. I’m killing everybody.” Asked by the prosecutor “Did Darryl Daniels have anything to say during or after this conversation in reference to you talking to police?” Hardy answered, “He just laid a gun on his lap.”
In closing argument the prosecutor stated that Hardy “testified to you that on at least one occasion she was threatened at her friend Mary’s home. Mary witnessed the threats, and Mary walked her home to her father’s house.” Gordon’s counsel objected: “not only is it patently untrue, but . . . it’s outside the evidence.” The trial court in effect overruled the objection, stating “I don’t recall the testimony about Mary, but it may be. [¶] It’s up to the jury to decide whether . . . that comment is supported by the evidence. So the jury will decide whether that has been proven or not.
But a careful reading of Hardy’s transcript shows that the trial court’s ruling was sensible on the major point. Although Hardy did not expressly testify that Mary was aware of a threat explicit in Gordon’s call and implicit in Daniels’s gesture, it is not an unreasonable inference. It was, after all, Mary’s house, and she presumably was present. If it is inferable that Daniels’s gesture was timed to respond to the content of Gordon’s call, it is inferable that Daniels was aware of the call’s content. It would be no less inferable that Mary had a similar awareness.
The crucial—and undisputed—point of the testimony was that Hardy did in fact receive threats obviously aimed to preserve her silence. The number of persons beside Hardy who overheard the threats was tangential, to the point of irrelevance. We conclude there could be no prejudice in the trial court’s overruling Gordon’s objection as to this portion of the prosecutor’s argument.
However, the prosecutor’s argument that after witnessing the threat “Mary walked her home to her father’s house” is not supported by Hardy’s testimony. Nevertheless, the point is so inconsequential that it cannot qualify as prejudicial. (Lopez, supra, 42 Cal.4th 960, 966; People v. Lanphear, supra, 26 Cal.3d 814, 828-829.) In addition, counsel could have decided that an objection might only have drawn the jury’s attention to the point most disadvantageous to Gordon—the undisputed fact of the threat uttered over the phone, which in turn might remind the jury of other threats recounted by Hardy. Trial counsel’s decision not to object has not been shown to be outside the realm of reasonable tactical choice. (E.g., Lopez, supra, 42 Cal.4th 960, 966; People v. Weaver, supra, 26 Cal.4th 876, 925-926.)
The second object of Gordon’s attack is the testimony of robbery victim Audie Williams and what the prosecutor made of it.
Williams testified that Officer Deplitch showed him a photo array in which Gordon’s photo was already circled. Officer Deplitch denied that the line-up he showed to Williams had Gordon’s photograph already circled, that the circling was done by Williams when he made the identification and initialed the photo array. In her closing argument the prosecutor told the jury: “Mr. Williams testified to you that Detective Deplitch went—he brought that photo lineup to him, had already circled Charles Gordon’s picture and written the name ‘Jam’ underneath as an attempt to explain how that photo lineup was conducted. [¶] Well, you can look at the photo lineup yourselves. It’s very clear that there is a circle around the picture of Charles Gordon and the initials ‘A.W.’ The word ‘Jam’ appears nowhere on that photo lineup.”
Gordon argues that “In testifying that Gordon’s picture was pre-circled, Williams in turn questioned Detective Deplitch’s credibility and motivation. The jury had seen—and had in the jury room . . . the photo lineup at issue. And it [confirmed] the prosecutor’s argument: The name ‘Jam’ was not written on Gordon’s picture. The fact that the actual dispute was about the circling, not the name, was likely lost on the jury at that point.” But there was no misconduct, merely a divergence in testimony, simply a credibility contest between Williams and Deplitch. And once the evidence was in, the absence of the word “Jam” on the lineup was surely a point the prosecutor was entitled to argue in her closing argument. (People v. Dennis (1998) 17 Cal.4th 468, 522.) “Defense counsel’s performance cannot be considered deficient if there was no error to object to.” (People v. Eshelman (1990) 225 Cal.App.3d 1513, 1520.) An objection would have been pointless, and futile efforts are not required of trial counsel. (See People v. Anderson (2001) 25 Cal.4th 543, 587; accord, People v. Jackson (1989) 49 Cal.3d 1170, 1189; People v. Jones (1979) 96 Cal.App.3d 820, 827.)
The Sentence-Enhancing Allegations Found True By The Trial Court Are Not Defective
After the jury returned its verdicts finding Daniels and Gordon guilty of the substantive offenses charged, the trial court considered the truth of the allegation that Gordon had two juvenile adjudications—for armed robbery and discharging a firearm at an inhabited dwelling—that qualified as prior strikes for purposes of the Three Strikes law. (See §§ 667, subd. (d)(3)(B), 667.5, subd. (c)(9), 1170.12, subd. (b)(3)(B)(i); Welf & Inst. Code, § 707, subds. (b)(3) & (b)(15).) The prosecution submitted three pages of certified court documents: a two-page dependency petition filed in 1994, and one page of minutes, filed the day after the petition, reciting that the Contra Costa County Juvenile Court ordered Gordon detained. Gordon did not submit any evidence. The trial court found that the allegations had been proved.
Gordon presents two contentions to overturn the trial court’s findings. He first argues that the evidence presented by the prosecution was insufficient.
Our Supreme Court has recently stated the principles governing our review: “[T]he trier of fact may draw reasonable inferences from the record presented. Absent rebuttal evidence, the trier of fact may presume that an official government document, prepared contemporaneously as part of the judgment record, and describing the prior conviction, is truthful and accurate. Unless rebutted, such a document, standing alone, is sufficient evidence of the facts it recites, about the nature and circumstances of the prior conviction. [¶] On review, we examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt.” (People v. Miles (2008) 43 Cal.4th 1074, 1083; accord, People v. Delgado (2008) 43 Cal.4th 1059, 1066-1067.)
This is not the usual situation where the evidence is in the form of an abstract of judgment from a criminal proceeding or other documents governed by section 969b. Of the three pages introduced by the prosecution, only two are relevant, the two pages of the petition specifying the offenses Gordon was alleged to have committed. Ordinarily, what is in effect merely a charging document would be wholly inadequate to demonstrate the ultimate outcome on those charges. But here, the petition has the handwritten notations “nolo” beside two of the allegations.
This is enough, but only barely. We think it a reasonable inference for the trial court to accept that only judicial officers would make handwritten notations on original documents in a court file. This would be particularly so here, because the record originated from the same county and same superior court where Gordon was tried for the instant offenses. Given its presumed familiarity with local practices, it is even possible that the trial court recognized the handwriting as coming from a particular judicial officer. Thus, acting as the trier of fact, the trial court could accept that the marginalia were made by the juvenile court contemporaneously with Gordon admitting the allegations. Because Gordon introduced nothing to rebut these inferences, the trial court, acting as a rational trier of fact, could, and we must assume did, accept them. That qualifies as substantial evidence. (People v. Delgado, supra, 43 Cal.4th 1059, 1066-1067; People v. Miles, supra, 43 Cal.4th 1074, 1083.)
Next, relying on two federal cases, Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and U.S. v. Tighe (9th Cir. 2001) 266 F.3d 1187 (Tighe), Gordon contends that since he had no right to a jury trial in the juvenile proceeding, the use of that adjudication to enhance his sentence in this case violated his “rights to due process, notice, and jury trial under the Fifth, Sixth and Fourteenth amendments. We reject the contention.
In Apprendi, the United States Supreme Court invalidated a New Jersey “hate crime” statute that provided for an extended prison term if the trial judge found, by a preponderance of the evidence, that certain felonies were committed with a purpose to intimidate certain individuals or groups. (Apprendi, supra, 530 U.S. 466, 468-469) The defendant was sentenced on one count of possession of a firearm for an unlawful purpose, which carried a sentence of five to 10 years. In addition, the trial court found that the defendant had intended to intimidate the victims because of their race, and sentenced the defendant to an additional 12 years under the hate crime statute. Addressing the right of criminal defendants to have a jury decide certain facts related to increased punishment, the Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.)
Citing to Tighe, Gordon contends that Apprendi’s exception for prior convictions should not include juvenile adjudications. The defendant in Tighe claimed that the use of a prior juvenile adjudication to increase his sentence beyond the statutory maximum violated Apprendi because “the fact of his juvenile adjudication [had not been] charged in an indictment and found by a jury beyond a reasonable doubt.” (Tighe, supra, 266 F.3d 1187, 1191.) A divided panel of the Ninth Circuit Court of Appeals considered Apprendi’s prior conviction exception. The majority observed that prior convictions are reliable when they are the product of fair notice, reasonable doubt, and jury trial. Because juvenile adjudications do not include the right to jury trial, they are not encompassed by the Apprendi exception. The court explained, “the ‘prior conviction’ exception to Apprendi’s general rule must be limited to prior convictions that were themselves obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt. Juvenile adjudications that do not afford the right to a jury trial and a beyond-a-reasonable-doubt burden of proof, therefore, do not fall within Apprendi’s ‘prior conviction’ exception.” (Id. at p. 1194.) Numerous cases hold to the contrary. (See U.S. v. Burge (11th Cir. 2005) 407 F.3d 1183, 1190-1191 [holding that a juvenile adjudication may be used as a prior conviction under Apprendi]; U.S. v. Jones (3d Cir. 2003) 332 F.3d 688, 696 [concluding that there is “nothing in Apprendi or Jones, two cases relied upon by the Tighe court . . . that requires us to hold that prior nonjury juvenile adjudications that afforded all required due process safeguards cannot be used to enhance a sentence”]; U.S. v. Smalley (8th Cir. 2002) 294 F.3d 1030, 1033 [concluding that “juvenile adjudications can rightly be characterized as ‘prior convictions’ for Apprendi purposes”]; see also Boyd v. Newland (9th Cir. 2006) 467 F.3d 1139, 1152 [denying petition for writ of habeas corpus; holding that, “in the face of authority that is directly contrary to Tighe [from California and the Third, Eighth and Eleventh Circuits], and in the absence of explicit direction from the Supreme Court, we cannot hold that the California courts’ use of Petitioner's juvenile adjudication as a sentencing enhancement was contrary to, or involved an unreasonable application of, Supreme Court precedent”].)
Gordon’s reliance on Apprendi and Tighe is misplaced. The Three Strikes law provides the right to a jury to establish, under the reasonable doubt standard, the existence of a strike, including a juvenile adjudication. In addition, unlike Tighe, appellant’s prior juvenile adjudication was alleged in the information as the basis for an enhanced sentence. In the current proceeding, Gordon had notice, the right to a jury trial, and the benefit of the reasonable doubt standard with respect to the existence of the juvenile adjudication. Indeed, Tighe itself distinguished California law on this basis. (Tighe, supra, 266 F.3d 1187, 1192, fn. 3; see People v. Bowden (2002) 102 Cal.App.4th 387, 390-394 [finding Apprendi and Tighe had no application in the situation of proof of a strike under Three Strikes law where a qualifying conviction must, in the current proceeding, be pleaded and proved beyond a reasonable doubt].)
Moreover, until 2007 every California court that considered the question of whether a juvenile adjudication can be used as a strike under the Three Strikes law concluded in the affirmative. (See People v. Buchanan (2006) 143 Cal.App.4th 139, 149; People v. Palmer (2006) 142 Cal.App.4th 724, 733; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 831-834; People v. Lee (2003) 111 Cal.App.4th 1310, 1316; People v. Smith (2003) 110 Cal.App.4th 1072, 1075, 1077-1078; People v. Bowden, supra, 102 Cal.App.4th 387, 390-394; People v. Fowler (1999) 72 Cal.App.4th 581, 585-587.) It was not until this unanimity was broken that the Supreme Court agreed to provide an authoritative answer. (People v. Nguyen, review granted Oct. 10, 2007, S154847 .) Until that answer is given, we agree with the clear majority of the Courts of Appeal that have addressed the issue. (See People v. Del Rio (2008) 165 Cal.App.4th 439, 441.)
DISPOSITION
The judgments of convictions are affirmed.
We concur: Kline, P.J., Lambden, J.
“Codefendant Clark’s statement to police was redacted to delete any reference to another person. Defendant contends that admission of the statement was erroneous under Crawford v. Washington . . . . [¶] . . . [¶] [T]he claim lacks merit. Crawford addressed the introduction of testimonial hearsay statements against a defendant. Clark’s redacted statement contained no evidence against defendant. [Citation.] Thus, it cannot implicate the confrontation clause. [Citations.] The same redaction that ‘prevents Bruton error also serves to prevent Crawford error.’ [Citation.]” (People v. Stevens (2007) 41 Cal.4th 182, 198-199.)