Opinion
B224365
10-25-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSE C. GARCIA, Defendant and Appellant.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and Garcia. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA315471)
APPEAL from a judgment of the Superior Court of Los Angeles County. Sam Ohta, Judge. Affirmed and remanded with directions.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and Garcia.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Jose Garcia of second degree murder, with findings he personally used a firearm, personally discharged a firearm, and personally discharged a firearm causing death. (Count 1; Pen. Code, §§ 187, subd. (a); 12022.53, subds. (b), (c), (d).)Garcia was also convicted of assault with a firearm upon a separate victim, with a finding that he personally used a firearm. (Count 2; §§ 245, subd. (a); 12022.5, subd. (a).) The jury found Garcia committed both offenses for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) As to count 2, the trial court imposed an aggregate determinate sentence of 14 years in state prison, to be served before Garcia begins serving an indeterminate term of 40 years to life as to count 1. We modify Garcia's sentence as to count 2 by striking a 4-year firearm enhancement under section 12022.5, subdivision (a), which the trial court imposed and stayed. As modified, we affirm the judgment in its entirety.
All section references are to the Penal Code.
FACTS
In January 2007, Alex R. (the murder victim) and his brother, Julio R. (the firearm assault victim), lived on Woodlawn Avenue. Their residence had a gated driveway at the back of the property leading to an alley. On January 5, 2007, at about 9:00 p.m., Julio asked Alex to move his car so that Julio could leave. As Alex began backing his car from the driveway, Julio saw two men approaching up the alley. Both men were wearing dark clothing and covered their faces; they shouted something at Julio. One of the men pointed a handgun at Julio. Julio crouched behind a car in the driveway. As he crouched down, Julio heard screeching tires, five or six gunshots, and a car crash. When Julio looked up, he saw that Alex's car had crashed into a wall in the alley, and saw the two men running away. Julio ran to Alex's car. The driver's side window of Alex's car was shattered, Alex was shot in the head, and blood was splattered on the inside of the front windshield. There was also a bullet hole in the left front fender. Alex died from a gunshot that entered the back of his head. Police recovered bullet casings and fragments from the scene of the shooting.
On January 11, 2007, Los Angeles Police Department Officer Jose Calzadillas was doing normal routine checks in the parking lot area at Gilbert Lindsay Park, a "hangout" for members of the 41st Street gang. He saw Garcia, a known member of the gang, with another gang member and some others. Garcia was carrying a black plastic bag. When Officer Calzadillas approached the group, Garcia started walking away. Officer Calzadillas asked to speak to Garcia. Garcia put the bag down and walked towards the officer. Another officer retrieved the bag and found a loaded nine-millimeter handgun inside the bag. Garcia was arrested for possessing the gun. When detectives saw the gun, they believed it was connected to the shooting of Alex because the bullets in the gun were the same brand as the casings recovered at the scene of the shooting. In addition, a bullet casing in the gun and an expended casing recovered at the scene of the shooting both had unusual stamped lettering that read "9 by 19." Subsequent ballistics tests confirmed that the gun recovered from Garcia' bag had been used to shoot Alex.
Shortly after his arrest, detectives interviewed Garcia at the Newton police station. Garcia initially denied being involved in the shooting of Alex, but, after about an hour of questioning, he admitted that he was the shooter. The circumstances and content of Garcia's interview and confession are discussed more fully below in addressing his claim on appeal that his confession should not have been admitted into evidence at his trial because it was involuntary.
The People filed an information charging Garcia with Alex's murder (count 1; § 187, subd. (a)), and assault with a firearm on Julio. (count 2; § 245, subd. (a)(2)). It was further alleged as to the murder that Garcia personally used a firearm, personally discharged a firearm and personally discharged a firearm causing death. (§ 12022.53, subds. (b), (c), (d).) There was no firearm enhancement allegation on the aggravated assault count. The information alleged as to both counts that the offenses had been committed to benefit a criminal street gang. (§ 186.22, subd. (b)(1).)
The charges were tried to a jury. At that time, the People presented evidence establishing the facts summarized above, largely through Julio's eyewitness testimony, and testimony from the investigating officers. The prosecution also called Los Angeles Police Officer Ronald Berdin to testify as a gang expert. Officer Berdin testified that Garcia was an admitted member of the 41st Street gang and that his gang moniker was "Trouble." He had numerous tattoos on his body that showed his gang membership. Frank Borruel was also an admitted member of the 41st Street gang. The 41st Street gang had about 70 to 75 members with a territory in an area near Martin Luther King Boulevard, Vernon Avenue, Main Street and Avalon Boulevard. Members of the 41st gang committed vandalism, robberies, narcotics sales, weapons possession, assaults on police officers, attempted murders and murders. Documentary evidence admitted during Officer Berdin's testimony showed that a member of the 41st Street gang had been convicted of carjacking and two counts of robbery arising from an incident in October 2005, and that another member of the gang had been convicted of murder arising from an incident in March 2004.
Officer Berdin testified that the victims' residence on Woodlawn Avenue was in the heart of the 41st Street gang's territory, and that there was 41st Street gang graffiti in the alley near the scene of the shooting. There was also Loas gang graffiti in the alley. The Loas gang and 41st Street gang were rivals. Loas gang members had moved into the victims' neighborhood shortly before Alex was shot and killed. Given a hypothetical based on the facts of the case, Officer Berdin offered an expert opinion that "the killing" would have been committed for the benefit of the 41st Street gang in that it would have been intended to impart fear and control in the local community.
Garcia did not testify. He presented testimony from an accident reconstruction expert and a criminalist. Their testimony suggested that Alex had accelerated his car out of the driveway, and that Garcia fired as the car was moving. Garcia's trial counsel argued to the jury that Garcia had fired in self-defense in that he had believed that Alex was trying to run him down with his car.
The jury returned verdicts finding Garcia guilty of the second degree murder of Alex, with findings that he personally used a firearm, personally discharged a firearm, and personally discharged a firearm causing death. (Count 1; §§ 187, subd. (a); 12022.53, subds. (b), (c), (d).) The jury also returned a verdict finding Garcia guilty of assault with a firearm upon Julio, with a finding that he personally used a firearm. (Count 2; §§ 245, subd. (a)(2); 12022.5, subd. (a).) As to both counts, the jury's verdicts included a finding that Garcia had committed the offenses for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).)
The trial court sentenced Garcia to and indeterminate term of 40 years to life on count 1. As to count 2, the trial court imposed an aggregate determinate sentence of 14 years in state prison, to be served before Garcia begins serving the indeterminate term of on count 1.
DISCUSSION
I. The Confession Issue
Garcia argues his convictions must be reversed because the trial court erred when it ruled that evidence of his confession was admissible. He argues the trial court should not have allowed the prosecution to present evidence of his confession because it was not voluntary. We disagree.
The Governing Law
A defendant's right to due process guaranteed under the United States Constitution and the California Constitution deny the prosecution the use of a defendant's involuntary confession at trial. (People v. Massie (1998) 19 Cal.4th 550, 576.) In deciding whether the prosecution may introduce evidence of a defendant's confession, the issue is whether the defendant's decision to confess was not truly free because his or her will to remain silent was overborne by the police. (Ibid.)
A defendant's confession is not freely given under these constitutional precepts when an interrogation includes a promise of some benefit or leniency, whether express or implied, and the inducement and the defendant's ensuing statement are "causally linked." (People v. Holloway (2004) 33 Cal.4th 96, 115.) Accordingly, a court must address two factors in determining the admissibility of a defendant's confession: first, did the police use improper questioning, and, second, did the questioning cause the defendant to give his or her confession. Mere language by the police that it would be better for the accused to tell the truth, when unaccompanied by a promise of some benefit or leniency, does not render an ensuing confession involuntary. However, when an accused is given the understanding that he or she might reasonably expect more lenient treatment from the police, the prosecution, or the courts in return for making a statement, the inducement may render an ensuing statement by the defendant involuntary and, thus, inadmissible. (Ibid) The issue in the context of the first factor then is whether the police interrogator "cross[ed] the line" from proper advice and exhortations to tell the truth on the one hand, into the area of impermissible promises of some benefit or leniency on the other hand. (Ibid.) Framed in other language, a court's task is to determine whether the police urged a person to speak by factually outlining a benefit that might come from confessing, which is permissible, or whether the police expressly or impliedly promised a benefit in return for a confession, which is not. (Id. at p. 119.) The issue in the context of the second factor is whether a defendant gave his statement for a reason independent of any improper police questioning. (People v. Bradford (1997) 14 Cal.4th 1005, 1041 [coercive police questioning "does not itself compel a finding that a resulting confession is involuntary"].)
Permissible questioning by the police may include disclosure of information, a summary of evidence, an outline of theories of a crime, confrontation with contradictory facts, debate, and even exaggerated statements implying that the police know more about a crime then they actually possess. (See People v. Holloway, supra, 33 Cal.4th at p. 115; and see also People v. Jones (1998) 17 Cal.4th 279, 299.) The police may even employ deception where it is "not of a type reasonably likely to procure an untrue statement." (In re Walker (1974) 10 Cal.3d 764, 777 [officer told a suspect that he might not live until he reached hospital, and that it would be a "'smart thing'" to tell his story].) In short, the guiding rules are not hard-line, blanket prohibitions on any specific manner in which the police may interrogate a person. Instead, courts prohibit "only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable." (People v. Ray (1996) 13 Cal.4th 313, 340.)
The standard for determining the voluntariness of a defendant's confession under both federal and state constitutional law is the "totality of circumstances." (People v. Massie, supra, 19 Cal.4th at p. 576.) Where, as in Garcia's current case, the facts are not disputed, the issue whether a defendant confessed voluntarily is reviewed independently on appeal. (Ibid.) With this framework in place, we turn to Garcia's confession.
The Motion to Exclude the Confession
Garcia filed a motion to exclude the statement he gave to the police at the time of his arrest. The motion argued that the tactics used to secure his statement were coercive, and rendered his confession involuntary. In February 2009, the People filed their opposition. The motion was argued to the trial court in early July 2009. The trial court ruled that the interrogating officers "gave [Garcia] no . . . misleading assurances [that he would receive any benefit by giving a statement]. No specific benefit in terms of lesser charges were even promised or discussed and . . . [a] general assertion that circumstances of a killing could make a lot of difference to punishment, while perhaps optimistic, was not materially deceptive. [¶] The line can be a fine one between urging a suspect to tell the truth by factually outlining the benefits that may flow from confessing, which is permissible and impliedly promising lenient treatment in exchange for confession, which is not. [¶] But . . . considering all the circumstances of this case, [the court does] not believe the detectives crossed that line . . . ." At trial later in July 2009, the People used parts of Garcia's statement in which he admitted he was the shooter.
The Confession Setting and Content
The content of Garcia's statement to police showed the following: Los Angeles Police Department Detective Miguel Terrazas and his partner, Detective Fanning, interviewed Garcia shortly after he was arrested. The detectives advised Garcia of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), and Garcia agreed to talk about Alex's murder. The detectives then tape-recorded their interview of Garcia.
Initially, Garcia denied possessing the bag in which the gun had been found, and denied that he had been involved in Alex's killing. He claimed he "probably" was in San Bernardino at the time of the shooting. A moment later, Garcia said that he did not remember where he was. When the detectives asked Garcia if he knew what "guys get for murder," Garcia said, "Life." The detectives then told Garcia that the gun found in his possession had the "same fucking kind of bullets that was found at the fucking murder scene," and said that they were providing him an opportunity to explain himself. They told Garcia: "So, hey, if homeboy had a strap and — and he was a rival and shit had to be taken care of, and that's how it is, and there's self-defense issues, I can understand that. But we are only going to be here tonight to talk to you, and we can't help you once we leave." When Garcia asked the detectives how they were going to help him, they replied: "The truth. The truth is what's going to help you, man."
At that point, Garcia again denied that he had any knowledge about the gun in his bag; the detectives answered, "See the . . . 'it wasn't my gun' shit ain't going to work. You got caught with the gun, you know, the gun's a murder gun." Garcia again denied knowing about the gun. The detectives said they knew he was lying. They again told Garcia "just [to] be straightforward, all right. We can help you out, but you need to be truthful." Over the course of next several pages of the transcript of the interview, Garcia continued to deny involvement in the crime.
Eventually, the detectives revisited the subject of self-defense: "Hey, if you . . . tell me . . . [i]n the neighborhood I'm strapped because all the shit that's going on, and homeboy from fucking Villa Lojas who was strapped and so shit happened. I didn't mean for it to happen, but you know, if I didn't defend myself then, you know, it could have been me. We can work with that. . . . You don't . . . go to jail for the rest of your life for that, man." A detective told Garcia that it was his only chance to talk because "once I make that case strong and I come after you with a murder charge, we ain't going to want to talk to you then." An instant later, the detectives returned to the subject of punishment again: "[O]nce they send you away you're done. Because everybody goes up to Folsom or San Quentin that's on a murder rap. That's the only two places they go unless you cause trouble and the[y] send you to Pelican Bay and then life's over with." At that point, Garcia again said that he was not involved. The detectives told Garcia that he had the gun used in the shooting, and that he fit the description of the shooter. They told him, "The only thing that's going to help you now is the truth" and "we're just trying to get to the truth . . . ." Garcia again denied involvement.
After another short back-and-forth, the detectives returned to the subject of self-defense: "If you were walking in the fucking alley and he was strapped for protection, and homeboy from Villa Lojas tried to run you over with a fricken car, and you had to protect yourself, and his brother was strapped, hey I understand that. That's something we can work with, homes." The detectives also again discussed punishment: "You know, you got to do time on something like that? Yeah. You got to do life? No. That's a second-degree. . . . [¶] Yeah, you're going to have to do about maybe . . . seven to 15, but that's a lot less than doing life." They also said, "seven to 15, you know, do half of that shit you'll be out in a minute. But when you're talking life without parole, all right . . . ." They also said, "But it's got to be the truth, man." A short time later, the detectives once again urged Garcia to tell them the truth, and Garcia once again stated that he "[didn't] know who did it."
The detectives then said that Garcia was distinctive looking and that people saw him. They said, "[T]his is going to be your last opportunity, because when you see us next you're going to have that big 187 on you." They said, "Can you say life without parole?" The detectives said, "The next time we see you in court is when they convict you and then you go away. The time to tell the truth to try to explain why you did what you did is right now." Garcia again said that he did not do anything. The detectives said, "You said you weren't there and the guy didn't try to run you over; right? [¶] So later on, you know, when you're in court you[r] lawyer can't say that, hey my client was in the alley and the guy tried to run him over. That's why he did it. Because right now you're telling us that didn't happen."
At this point, Garcia asked, "Well, what happen if it was like that? How much time am I looking at?" The detectives said, "You're looking at, like, second-degree murder instead of a first-degree murder. . . . You're looking at about -- maybe 15 years. . . . You'll get out in about nine, 10, somewhere in there." They also said, "The decision you make tonight . . . [is] going to affect the rest of your life" and "the only thing that's going to help you is telling us the truth." They asked, "What did the guy in the car do to you guys that . . . made this thing all end up the way it ended up?" Garcia remained noncommittal.
A moment later, the detectives said, "I can't tell you how we can help you until you tell me how it played out " and "this is going to help you by telling me what the hell happened out there, and if you don't tell me there's nothing I can help you with." At that point, Garcia admitted that he was the shooter and said that the car tried to run him over.
Analysis
We have independently reviewed the circumstances and content of Garcia's interview, and find his confession was properly admitted at this trial because it was voluntary. Although the detectives stated numerous times that they could "help" Garcia, they never expressly promised him that they could or would secure more lenient treatment for him in return for confessing. Indeed, the detectives repeatedly told Garcia that they could only help him if he told them the truth. The detectives' statements that a killing in self-defense is punished less severely than a murder was a fairly accurate explanation of facts, and was not materially misleading or coercive. We conclude that the detectives in Garcia's current case "did not cross the line from proper exhortations to tell the truth into impermissible . . . promises of leniency." (People v. Holloway, supra, 33 Cal.4th at p. 116.)
Garcia's reliance on People v. Cahill (1994) 22 Cal.App.4th 296 (Cahill)in support of a different conclusion is misplaced. In Cahill, an interrogating officer told the defendant that he could not be convicted of first degree murder and could not receive the death penalty for a murder that was not premeditated. The Third District Court of Appeal ruled these averments were materially misleading because the defendant could have been convicted of first degree murder and could have received the death penalty based on a felony murder theory. (Cahill, supra, 22 Cal.App.4th at pp. 309-315.) In Garcia's current case, the situation is different, and the difference makes for a different result — the detectives accurately told Garcia that a killing in self-defense is punished less severely than is a murder.
Garcia's reliance on People v. McClary (1977) 20 Cal.3d 218 (McClary)is also unpersuasive. McClary involved a 16-year-old suspect. During an interview, the interrogating officers ignored her repeated requests for talk to a lawyer, and falsely told her that she would face the death penalty unless she changed her statements that she had not been involved. The officers also strongly implied that she would be charged only as an accessory after the fact if she admitted mere knowledge of the murder. (McClary, supra, 20 Cal.3d at p. 229.) Under these circumstances, it is not surprising that the Supreme Court found the confession was not voluntary. Again, Garcia's circumstances are materially different. Garcia was an adult when questioned. Although Garcia was at the young end of the adult spectrum when he was questioned, his age was tempered by significant experience with the criminal justice system. Apart from the factor of age, to the extent it is a factor at all, Garcia's current case does not involve the type of overbearing and false tactics used in McClary.
In People v. Cahill (1993) 5 Cal.4th 478, 509-510, fn. 17, the Supreme Court overruled McClary to the extent it indicated that the erroneous admission of a confession is reversible per se.
Garcia turned 18-years-old in June 2006; he was questioned in January 2007.
We reject Garcia's contention that the detectives threatened him with death unless he confessed to his involvement in Alex's killing. This is what the detectives actually said: "A murder case never goes away, holmes. Never goes away until we catch the guy that did it. And when we catch the guy that did it, he goes away forever. He never comes out. He never comes out. [¶] And the problem with that is, since you got to go to Folsom or Quentin, shit, you know maybe the first month or two some family members might come up and visit, but after a while it's like, it's just too far to come and see you, man. So you're pretty much - year, you're right. You're dead. Because you [are] cut off from - from everybody, because nobody is going to make that ride to see you. [¶] Some of the homies are going to talk about you. They might drop you a line once in a while, but, you know, after the second or third year they - they even quit writing, because homies don't write, man, shit." Whatever the tone of the detectives' language, we are confident that Garcia did not understand the detectives to be saying to him that he was going to be killed in prison if he did not confess. The detectives' words to Garcia that a person in prison for life faces the prospect of being forgotten by those on the outside, i.e., the person will be "dead" to outsiders, did not impart a threat against his life.
Finally, we disagree with Garcia that the detectives falsely told him that his lawyer would be barred from later claiming self-defense if Garcia continued denying his involvement in the shooting. Again, the detectives explained a truism: if Garcia denied his involvement during the interview, and then claimed self-defense at trial, his interview statements that he was not present at the crime scene could be used to impeach his claim of self-defense at trial. We find no problem in this part of the detectives' statements during the interview.
In summary, although there are isolated uses of the word "help" found within the body of the interview before us on appeal, Garcia has not convinced us that he believed, or that any reasonable person would have believed, that the detectives made promises of more lenient treatment in return for a confession. The detectives strongly urged Garcia to tell the truth, and repeatedly told him that telling the truth would be in his best interests. The detectives did not cross the line into impermissible promises.
II. Instructional Issues
a. The Aggressor's Right to Self-Defense
In accord with Garcia's defense theory that Alex tried to run Garcia down, the trial court instructed the jury on an aggressor's right to self-defense or defense of another when a victim responds with an excessive counter-assault. On appeal, Garcia contends his murder conviction must be reversed because the trial court wrongly denied his request for broader instructions addressing an aggressor's right to self-defense. We find no error.
The trial court instructed the jury that Garcia was not guilty of murder if the killed in justifiable self-defense. (CALCRIM Nos. 505, 3471, 3474.) Within these instructions, the court told the jury that an "initial aggressor" has the right to self-defense if he stopped fighting and indicated by words or conduct to his opponent that he wanted to stop fighting and did stop fighting. The court also instructed the jury on voluntary manslaughter based upon imperfect self-defense. (CALCRIM No. 571.)
Garcia requested that the trial court read a bracketed portion of CALCRIM No. 3471 which would have told the jury: "If you decide that the defendant started the fight using non-deadly force and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to stop fighting." The trial court denied Garcia's request, ruling the evidence did not show he started the fight with "non-deadly force," but rather, the evidence showed he had started the fight by using "deadly force" in that he pointed a gun at Julio.
The language requested may be found in the 2009 version of CALCRIM No. 3471.
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Garcia then requested that the trial court give a similarly themed instruction to the following effect: Where a counter-assault is so sudden and perilous that no opportunity is given to the initial aggressor to decline to fight further, and he cannot retreat in safety, the initial aggressor is justified in killing in self-defense. Garcia cited People v. Quach (2004) 116 Cal.App.4th 294 in support of his proffered instruction. The trial court discussed the instruction with the attorneys, and deferred its ruling. A short time later, the court denied Garcia's requested instruction.
The bracketed language in CALCRIM No. 3471, and Garcia's proffered special instruction are both derived from People v. Quach, supra, 116 Cal.App.4th 294 and similar cases which stand for two inter-related basic principles. First, when an initial aggressor does not commit a deadly attack, but only a simple assault, the target of the attack has no right to resort to deadly force against the initial attack. Second, when the target of a simple assault responds with deadly force, the initial aggressor's right of self- defense arises. (People v. Quach, supra, 116 Cal.App.4th at pp. 301-302; and see People v. Gleghorn (1987) 193 Cal.App.3d 196, 202.)
The trial court properly denied Garcia's requested instructions. Garcia's initial attack was not a simple assault; he pointed a gun at Julio. Garcia essentially wanted the jury to be instructed that an attacker who starts a fight with deadly force is justified in killing a victim who responds with deadly force. That simply is not the law.
b. The Heat of Passion Instruction Issue
Garcia contends his conviction must be reversed because the trial court failed to instruct the jury sua sponte on heat of passion voluntary manslaughter. We see no error.
Under the theory of self-defense, upon which the trial court instructed Garcia's jury, a defendant may be wholly exonerated of criminal liability based on the principle that a killing was legally justified. Imperfect self-defense, upon which the trial court also instructed the jury, and heat of passion, upon which the trial court did not instruct the jury, are defense theories of "partial exculpation" that may be applied to reduce a murder to manslaughter based on the principle that the element of malice was negated. (People v. Moye (2009) 47 Cal.4th 537, 549 (Moye).) Imperfect self-defense and heat of passion are not necessarily overlapping defense theories. In other words, assuming that Garcia killed Alex because Garcia unreasonably feared for his life or the life of his companion, it does not necessarily follow that Garcia also killed in the heat of passion. (Moye, supra, 47 Cal.4th at pp. 554-555.) In order for a heat of passion instruction to have been warranted, there must have been evidence that Garcia shot Alex under an impulse caused by conduct and or words from Alex that were so provocative they would have caused a person of average disposition to act rashly, without deliberation and reflection. (Ibid.)
No heat of passion instruction was required in Garcia's current case because there was no evidence of heat of passion. There was no evidence that Garcia shot because he experienced an intense emotional impulse prior to the shooting. Garcia was the initial aggressor; he pointed a gun at Julio. As the Court of Appeal explained in People v. Oropeza (2007) 151 Cal.App.4th 73, this scenario defeated the applicability of a heat of passion theory: "A defendant may not provoke a fight, become the aggressor, and, without first seeking to withdraw from the conflict, kill an adversary and expect to reduce the crime to manslaughter by merely asserting that it was accomplished upon a sudden quarrel or in the heat of passion. The claim of provocation cannot be based on events for which the defendant is culpably responsible." (Id. at p. 83.)
III. The Prosecutorial Misconduct Issue
Garcia contends his conviction must be reversed because the prosecutor engaged in misconduct during closing argument. We disagree.
The Governing Law
Prosecutorial misconduct is the use of a trial tactic by a prosecutor that wrongly persuades a jury to render a verdict independent of the properly admitted trial evidence; a defendant need not show a prosecutor acted in bad faith to establish misconduct because a defendant is injured by an improperly persuasive trial tactic, regardless of whether it occurred inadvertently or through intentional design. (People v. Hill (1998) 17 Cal.4th 800, 822-823.) A misstatement of the law regarding reasonable doubt may constitute prosecutorial misconduct. (People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1269.) But more than a showing of the occurrence of an improper trial tactic is required to warrant reversal upon a misconduct claim. An improper trial tactic warrants reversal under the federal Constitution only when a reviewing court finds that the prosecutor's act or words so infected the trial with unfairness as to make the defendant's conviction a denial of due process; under the California Constitution a prosecutor's trial tactic justifies reversal when it is a "deceptive or reprehensible . . . attempt to persuade the . . . jury." (People v. Cash (2002) 28 Cal.4th 703, 733.)
The Prosecutor's Closing Argument
During his closing argument, the prosecutor argued that Julio's testimony about the shooting showed that Garcia had pointed a gun at Julio, and that Garcia acted as the initial aggressor. The prosecutor urged the jury to find Julio's testimony believable, telling the jury: "[Defense] counsel can say [Julio] lied or he's being evasive and all this, but you saw him. Where was he found to be lying? On what issue? He said he's standing there by the house and two guys -- he doesn't identify them because he can't. He's not even telling you, hey, convict this defendant because that's the guy I saw. He's being honest with you saying I couldn't identify him, the guy I saw." Defense counsel objected that the argument was improper.
The trial court overruled the objection, but did admonish the jury as follows: "Ladies and gentlemen, you are the judges of the facts of this case and the attorneys' comments on the facts are not obviously what you would use to determine what facts have been proved. It's your own recollection of what you heard the facts to be. So the attorneys are free to believe what they believe the facts are that have been shown, but it is up to you to decide what it is ultimately."
Analysis
A prosecutor may comment on a witness's credibility based on the evidence at trial, but is prohibited from vouching for a witness's credibility by explicitly or implicitly referring to matters outside the trial record bolstering the person's testimony. (People v. Redd (2010) 48 Cal.4th 691, 740.) Garcia contends the passage from the prosecutor's closing argument reproduced above constituted such improper vouching for Julio's credibility. We disagree. The prosecutor at Garcia's trial did no more than comment on the credibility of Julio's testimony based on the trial evidence. The prosecutor did no more than argue that Julio was credible because his description of the shooting event had not been embellished to include an express identification of the shooter — instead, he had admitted in his testimony that he could not identify the shooter. These facts were in the record. The prosecutor did not vouch for Julio's credibility in closing argument because the prosecutor did not refer, explicitly or implicitly, to any evidence outside the record which showed that Julio was a credible witness. There simply was no misconduct that can be gleaned from the prosecutor's statements.
IV. The Sentencing Issue
On count 2, assault with a firearm, the trial court sentenced Garcia to a determinate aggregate term of 14 years in state prison. The court calculated the 14-year aggregate term as to count 2 as follows: the upper term of 4 years for the assault, plus a 10-year term for the gang benefit enhancement. The court also imposed a 4-year firearm enhancement under section 12022.5, subdivision (a), but stayed its execution under section 654, citing People v. Rodriguez (2009) 47 Cal.4th 501 (Rodriguez).In Rodriguez, our Supreme Court determined that section 1170.1, subdivision (f) prohibited the imposition of both a firearm enhancement under 12022.5, subdivision (a), and a gang enhancement under section 186.22, subdivision (b)(1)(C).
On appeal, Garcia contends the stay of the firearm enhancement is not sufficient. Relying on Rodriguez, supra, 47 Cal.4th at pages 508-509, and section 1170.1, subdivision (f), he contends the error requires that we remand his case for resentencing. Citing the same authorities, the People concede the trial court should not have imposed the two enhancements, but argue that the proper remedy is not resentencing. Rather, they request a remand with directions to the trial court to strike the 4-year firearm enhancement imposed under section 12022.5, subdivision (a), leaving in place the 10-year gang enhancement under section 186.22.
Because the record shows that the trial court clearly understood the constraints of its sentencing discretion under Rodriguez, and further, that it intended to impose the gang enhancement, not the firearm enhancement under 12022.5, subdivision (a), we find that remand for resentencing is not necessary. Instead, we simply strike the 4-year firearm enhancement that was imposed and stayed.
In an alternative argument, Garcia contends the gang enhancement should not be imposed at all. We disagree. Section 186.22, subdivision (b)(1)(C), provides that a trial court shall punish a defendant with a 10-year gang enhancement when the defendant has been convicted of a violent felony as defined by section 667.5, subdivision (c). Section 667.5, subdivision (c)(8), defines a violent felony to include any felony in which the defendant used a firearm. Garcia was convicted of assault with a firearm. The gang enhancement was properly imposed.
To avoid his conclusion, Garcia argues the 10-year gang enhancement could not be imposed in his case because the information did not allege as to count 2 the section 12022.5, subdivision (a), firearm allegation. (See § 667.5, subd. (c)(8) [a defendant uses a firearm for purposes of the section 667.5 when the firearm use is "charged and proved" as provided section 12022.5].) Although it is true that the information did not charge the section 12022.5, subdivision (a), firearm allegation as to count 2, the pleading error does not preclude the imposition of the gang enhancement. The trial court instructed the jury on the firearm allegation with no objection from Garcia, and the verdict form submitted to the jury included a space for a finding on the firearm allegation, and the jury returned a true finding on the allegation in its verdict. Under these circumstances, we deem Garcia to have impliedly consented to submission of the firearm allegation to the jury. (People v. Toro (1989) 47 Cal.3d 966, 976 (Toro), disapproved on other grounds in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3.) We discern no difference in principle between adding a new offense at trial by amendment of the information, which is permissible, and adding an allegation by verdict forms and jury instructions. (Toro, supra, 47 Cal.3d at p. 976.) Therefore, the firearm allegation was properly charged and proved, meaning the 10-year gang enhancement was properly imposed.
DISPOSITION
The cause is remanded with directions to the trial court to issue a new abstract of judgment which reflects no firearm enhancement under section 12022.5, subdivision (a), on count 2. The trial court is directed to forward copies of the amended abstract of judgment to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
BIGELOW, P. J. We concur:
FLIER, J.
GRIMES, J.