Opinion
H043805
12-11-2017
THE PEOPLE, Plaintiff and Respondent, v. ANGELO GARCIA, et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. Nos. SS150818A, SS150818B)
Defendants Angelo Garcia and Eric Ruiz, inmates at the Salinas Valley State Prison, appeal from judgments entered after a jury trial resulting in their convictions of attempted murder and related crimes against a fellow inmate. Both defendants seek reversal based on the court's denial of their joint "Pitchess" motion to discover personnel records of correctional officer witnesses. Defendants further assert error in an instruction relating to the intent necessary for attempted murder; in addition, defendants contend they should have received instructions on self defense by Ruiz and defense of others by Garcia. Both also assert ineffective assistance of counsel based on trial counsel's failure to object to prosecutor misconduct, and Garcia contests the sentence he received on one of the counts. We find merit in the last argument by Garcia; accordingly, on that ground alone we will modify the judgment as to that defendant.
Background
The events of April 25, 2013 were described at trial by three correctional officers at the prison. That afternoon about 100 inmates were on Yard B, with several officers monitoring, when a "yard down" announcement was issued over the PA system. Most of the inmates got down on the ground, but three remained upright, fighting. From about 55-60 feet away, correctional officer John Niduaza saw defendant Ruiz facing the victim, Luke Gutmann, and defendant Garcia was behind Gutmann; all three were exchanging blows. Along with two other officers, Ian Raneses and Jorge Lopez, Niduaza moved toward the three inmates and yelled to them to get down. By the time the officers reached them, they had fallen to the ground, with Gutmann sandwiched between the two defendants. Defendants appeared to be the aggressors in the fight. Garcia was holding Gutmann from behind, restraining his arms, while Ruiz stood over Gutmann, making a stabbing motion toward Gutmann's chest and torso with a sharp metal object. Neither a loud sound from the observation gunner's launcher nor three "OC blaster" grenades with a white powder irritant deterred the fighting men. Finally, they were hit with pepper spray; then they stopped fighting and lay prone on the ground. A stabbing weapon resembling an ice pick was found on the ground near Gutmann, along with a sheath for it. A second weapon with a cutting blade was also found on the ground near Gutmann.
Ruiz had three or four lacerations and slash marks on his left forearm and wrist. A small puncture wound was on his eyelid and a laceration on his right cheek. Garcia was not injured. Gutmann, however, suffered severe, life-threatening injuries. He had numerous puncture wounds in the middle of his chest and torso, mostly to the sternum over the heart. More puncture wounds were on his left arm, and a blade wound was on his back near the kidney. He had a laceration on his face or lip, and a tooth had been broken and knocked out. Because he had trouble breathing and was actively bleeding, he was taken by helicopter to an outside hospital.
Garcia and Ruiz were charged by amended information with willful, premeditated attempted murder (count 1, Pen. Code, §§ 664, 187, subd. (a)) and possession of a weapon while in custody, with the personal use of a deadly weapon (count 2, §§ 4502, subd. (a), 969f, subd. (a)). Garcia was also charged with assault by a prisoner serving a life term (count 3, § 4500) by means of a deadly weapon and with force likely to produce great bodily injury; and Ruiz was charged with assault by a state prisoner (count 4, § 4501) by means of a deadly weapon and with force likely to produce great bodily injury. Each defendant was also alleged to have two prior felony convictions.
All further statutory references are to the Penal Code except as otherwise indicated.
Defendants admitted their prior conviction allegations, and on May 19, 2016, the jury found both defendants guilty of all counts except count 2, custodial possession, as to Garcia. Ruiz was sentenced to 25 years to life for count 1 (attempted murder); 25 years to life for count 4 (assault by a prisoner); and four years, doubled pursuant to section 1170.12, subd. (c)(2), for count 2. Both the count 2 and count 4 terms were stayed under section 654. Garcia was sentenced to 27 years to life for count 3 (assault by a life prisoner) and a stayed term of 25 years to life for count 1. Both defendants filed timely notices of appeal.
Discussion
1. Pitchess Motion
Before trial, Garcia filed a motion, in which Ruiz joined, to discover the personnel records of eight officers involved in the events at the yard on the day of the fight, citing Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). Defendants specifically requested discovery of any records of complaints, investigations, or disciplinary actions pertaining to any errors or falsifications in reports, evidence tampering, or other misconduct by those officers. Garcia's counsel explained that the veracity of statements in the officers' incident reports was called into question by Garcia's alternative account of the events, and the personnel files were necessary for possible impeachment of the officers.
Garcia's alternative account was described as one raising his defense of Ruiz against Gutmann. Garcia said he had been throwing a football back and forth with Ruiz, an inmate he did not personally know, when Gutmann attacked Ruiz without warning. Garcia stepped in to try to "break up the fight" and "de-escalate the incident." Garcia argued that discovery of the requested records was warranted because "[t]he discrepancies between the correctional staff's account and Mr. Garcia's lack of participation in any type of creation or possession of an inmate manufactured device indicates that the evidence does not present a truthful account of the charges in this case, thereby satisfying the low threshold of plausibility and internal consistency most recently affirmed by the Supreme Court in Garcia v. Superior Court [(2007)] 42 Cal.4th 63."
The accounts submitted by the eight officers were consistent in describing Garcia holding Gutmann down while Ruiz made stabbing motions to Gutmann's upper chest or torso. They did not respond to repeated commands to "get down and prone out" on the ground.
The trial court denied the motion, explaining that "there has not been a clear articulation of how the discovery may lead to relevant evidence regarding who made the false statement, the materiality, the misconduct, the factual scenario supporting the claim of misconduct. [¶] While there is a plausible factual foundation set forth by [Garcia's attorney] as to what happened, there is no indication of how his plausible factual presentation is contradicted by the reports by the officers listed in the report." On appeal, both defendants assert error in this ruling.
In Pitchess, defendants in criminal proceedings obtained the right to discovery of personnel files of California peace officers which contain information about prior citizen complaints of misconduct by those officers. The Legislature codified this right in 1978 with the enactment of sections 832.5-832.8 and Evidence Code sections 1043-1045. These statutes generally "permit a criminal defendant to ' "compel discovery" of certain relevant information in the personnel files of police officers by making "general allegations which establish some cause for discovery" of that information and by showing how it would support a defense to the charge against him.' [Citation.] When the trial court, in exercising its discretion, grants a defendant's Pitchess motion, it orders disclosure of the names, addresses, and telephone numbers of individuals who have in the past witnessed alleged officer misconduct or who have complained of misconduct by the officer named in the motion." (Galindo v. Superior Court (2010) 50 Cal.4th 1, 5, quoting Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1018-1019 (Warrick).)
The statutory procedures for obtaining access to peace officer personnel records require a showing of good cause. Under Evidence Code section 1043, subdivision (b)(3), the motion must include an affidavit or declaration "showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records." "A showing of good cause is measured by 'relatively relaxed standards' that serve to 'insure the production' for trial court review of 'all potentially relevant documents.' [Citation.] If the defendant establishes good cause, the court must review the requested records in camera to determine what information, if any, should be disclosed." (People v. Gaines (2009) 46 Cal.4th 172, 179 (Gaines), quoting City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 84.) Its ultimate duty in reviewing those records must maintain "a balance between the officer's legitimate privacy interests and the criminal defendant's constitutionally guaranteed right to a fair trial." (Warrick, supra, 35 Cal.4th at pp.1027-1028.)
In Warrick, our Supreme Court explained that in order to show good cause, a defense attorney's declaration to support a Pitchess motion "must propose a defense or defenses to the pending charges. The declaration must articulate how the discovery sought may lead to relevant evidence or may itself be admissible direct or impeachment evidence [citations] that would support those proposed defenses." (Warrick, supra, 35 Cal.4th at p. 1024.) In addition, the declaration "must also describe a factual scenario supporting the claimed officer misconduct." (Ibid.) Upon receiving the peace officer's report or other documents in addition to the attorney declaration, the trial court will examine those documents to determine whether the defendant has presented "a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents." (Id. at p. 1025.) Generally, "a plausible scenario of officer misconduct is one that might or could have occurred. Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges." (Id. at p. 1026.)
The standards for good cause in Evidence Code section 1043 set a " ' "relatively low threshold," ' " in which "a defendant need demonstrate only 'a logical link between the defense proposed and the pending charge' and describe with some specificity 'how the discovery being sought would support such a defense or how it would impeach the officer's version of events.' " (Gaines, supra, 46 Cal.4th at p. 182, quoting Warrick, supra, at p. 1021.) "[T]he information sought must be described with some specificity to ensure that the defendant's request is not so broad as to garner ' "all information which has been obtained by the People in their investigation of the crime" ' but is limited to instances of officer misconduct related to the misconduct asserted by the defendant." (Warrick, supra, at p. 1021.) "This specificity requirement excludes requests for officer information that are irrelevant to the pending charges." (Ibid.) We review a trial court's denial of a Pitchess motion for abuse of discretion. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 992; Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.)
In denying defendants' Pitchess motion in this case, the trial court explained that while Garcia had proffered a "plausible factual foundation" there was "no indication of how his plausible factual presentation is contradicted by the reports by the officers listed in the report." We agree with that reasoning. The eight officers reported what they saw: a physical altercation on the yard involving three inmates on the ground, with Gutmann being restrained by Garcia as Ruiz made stabbing motions to Gutmann's chest or torso. The officers did not claim to have seen the fight begin. In the motion no misconduct was related by the defense or evident in counsel's accompanying declaration; instead, he provided an account of the events that merely supplemented the reports by positing the origin of the altercation. Defendants have thus failed to show how the requested discovery would support their defense or "how it would impeach the [officers'] version of events." (Warrick, supra, 35 Cal.4th at p. 1021.) No abuse of discretion is evident in the court's denial of the discovery motion.
2. Instructions on Self-Defense and Imperfect Self-Defense
In his argument to the jury, Ruiz's attorney disputed the accounts of the officers who had testified. Comparing the incident to a "dog fight," counsel suggested that Gutmann could have been holding one of the weapons and that he had injured Ruiz during the fight. He emphasized to the jurors that no one knew how this "melee" started; it was "spontaneous combustion."
On appeal, Ruiz asserts prejudicial error in the trial court's failure to instruct the jury sua sponte on reasonable self-defense. He argues that because there was sufficient evidence to support the instruction, the court's failure to give with CALCRIM No. 505 deprived him of due process and prevented him from presenting a complete defense. We disagree.
"A trial court's duty to instruct, sua sponte, on particular defenses arises ' "only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case." ' [Citations.]" (People v. Maury (2003) 30 Cal.4th 342, 424; People v. Brooks (2017) 3 Cal.5th 1, 73 (Brooks).) Substantial evidence for this purpose "is evidence that is 'sufficient to "deserve consideration by the jury, i.e., 'evidence from which a jury composed of reasonable [persons] could have concluded' " ' that the particular facts underlying the instruction did exist." (Brooks, supra, at p. 75.)
Moreover, "reversal is not warranted unless an examination of 'the entire cause, including the evidence,' discloses that the error produced a "miscarriage of justice." (Cal Const., art. VI, § 13.) This test is not met unless it appears "reasonably probable" the defendant would have achieved a more favorable result had the error not occurred. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)" (People v. Breverman (1998) 19 Cal.4th 142, 149 (Breverman); People v. Moye (2009) 47 Cal.4th 537, 556 (Moye) [following Breverman to find it "not reasonably probable defendant would have obtained a more favorable outcome" had the jury been instructed on heat of passion].) A prejudice analysis " 'focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.' " (Moye, supra, at p. 556, quoting Breverman, supra, at pp. 177-178.) Thus, even if the duty to give a sua sponte instruction arose, " '[a]pplication of the Watson standard of appellate review may disclose that, though error occurred, it was harmless.' " (Moye, supra, at p. 556, quoting Breverman, supra, at pp. 177-178.)
Here there were no witnesses to the beginning of the fight and hence no one who could testify that Gutmann initiated it by attacking Ruiz. Ruiz can point to no other evidence in support of his self-defense theory except for the lacerations on his arm and face. These injuries could as readily have been attributable to Ruiz's injuring himself as Gutmann attempted to defend himself. In any event, there is no evidence whatsoever that Gutmann started the fight and hence nothing to support Ruiz's theory that he needed to defend himself against an attack. And even if there were evidence that Gutmann was the initial aggressor, Ruiz could not have reasonably believed that it was necessary to stab the victim multiple times with a deadly weapon while Garcia restrained the victim, and to continue stabbing him even after corrections officers were alerted and ran over to stop the violence. An instruction with CALCRIM No. 505 would necessarily have included the admonition not only that Ruiz reasonably believed he was in "imminent danger," but that he "used no more force than was reasonably necessary to defend against that danger." On the facts presented at trial and in light of the jury's finding that the crime was "willful, deliberate, and premeditated," we see no reasonable probability that Ruiz would have obtained a more favorable outcome had the self-defense instruction been given.
For the same reasons, no prejudice resulted from the lack of a sua sponte instruction on attempted voluntary manslaughter based on a theory of imperfect self-efense, as described in CALCRIM No. 604. Given the absence of evidence that Gutmann initiated the fight, and the absence of evidence that Ruiz believed, even unreasonably, that it was necessary to protect himself by repeatedly stabbing Gutmann even after the officers attempted to subdue him, it is not reasonably likely that the jury would have found attempted voluntary manslaughter in these circumstances.
3. Instruction on Defense of Others
Garcia contends that he was deprived of the effective assistance of counsel when his attorney failed to request an instruction on defense of others to support the defense theory that he was only trying to protect Ruiz from Gutmann's initial attack. "Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215 (Ledesma).) " '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.]' " (People v. Lopez (2008) 42 Cal.4th 960, 966.) Errors in representation are not reversible unless defendant can show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington (1984) 466 U.S. 668, 694 (Strickland); Harrington v. Richter (2011) 562 U.S. 86, 104 (Harrington).)
Given this standard of prejudice, we cannot find a basis for reversal on the ground of ineffective assistance of counsel. The evidence that Ruiz needed defending was far from substantial; indeed, it was negligible. It was especially deficient when viewed in light of Garcia's own actions, which were to restrain Gutmann's arms while Ruiz repeatedly stabbed Gutmann. "In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. [Citations.] Instead, Strickland asks whether it is 'reasonably likely' the result would have been different. . . . The likelihood of a different result must be substantial, not just conceivable." (Harrington, supra, 562 U.S. at pp. 111-112.) Reversal on this ground is not warranted.
It is settled that if the record reveals that the defendant suffered no prejudice, we may decide the issue of ineffective assistance of counsel on that basis alone. (Strickland, supra, 466 U.S. at p. 697.) If it is easier to dispose of an ineffective assistance of counsel claim on the ground of lack of sufficient prejudice that course should be followed. (Ibid.)
4. Instruction on Intent for Attempted Murder
The trial court instructed the jury with CALCRIM No. 252 that attempted murder required both general intent and specific intent, as follows: "The crime charged in Count 1 requires proof of the union or joint operation of act and wrongful intent. The following crime requires . . . general criminal intent[:] attempted murder, as . . . charged in Count 1. For you to find a person guilty of this crime, that person must not only commit the prohibited act, but must do so with wrongful intent. [¶] A person acts with wrongful intent when he or she intentionally does a prohibited act. However, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime. [¶] The following crime requires a specific intent or mental state: attempted murder, as charged in Count 1. For you to find a person guilty of this crime, that person must not only intentionally commit the prohibited act, but must do so with specific intent."
Both defendants assert prejudicial error in the court's telling the jury that attempted murder is a general intent crime, because this crime requires specific intent. The People concede, and we agree, that this part of the instruction was incorrect. (See People v. Swain (1996) 12 Cal.4th 593, 604 [attempt crime requires specific intent to commit the target crime and a direct, ineffectual act done toward its commission].) But we do not find the error prejudicial. The court also gave CALCRIM No. 600, which clearly informed the jury that proof of attempted murder required a finding that defendant "intended to kill" the victim and took at least one "direct step" toward killing him. A "direct step," according to the instruction, "indicates a definite and unambiguous intent to kill"; it is a "direct movement" toward the commission of the crime, an "immediate step that puts the plan in motion . . . ." In addition, CALCRIM No. 601 was given, thus advising the jurors that if a defendant is guilty of attempted murder, they must determine whether he acted willfully—that is, if he "intended to kill" when he acted—and whether he "weighed the considerations for and against his choice and, knowing the consequences, decided to kill."
Thus, notwithstanding its partial error in delivering CALCRIM No. 252, the jurors were given clear instruction that attempted murder requires a specific intent to kill. Because they were also told to consider all the instructions together, we cannot conceive of their inaccurate understanding that a defendant could be guilty of attempted murder if he only "intentionally does a prohibited act." Even if the jury absorbed this statement, it would necessarily have understood that intending to commit this prohibited act—attempted murder—necessarily required an attempt to do a further act—that is, an attempt to commit murder. The jury was clearly informed that neither defendant could be convicted of this crime unless he had the specific intent to kill during the attack on Gutmann. The prosecutor and both defense attorneys also discussed these points, correctly, during their arguments.
"We have long held that 'the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.' " (People v. Delgado (2017) 2 Cal.5th 544, 573-574 (Delgado), quoting People v. Burgener (1986) 41 Cal.3d 505, 538.) "The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole." (People v. Galloway (1979) 100 Cal.App.3d 551, 567-568; accord, Delgado, supra, at p. 574.) Here, "[v]iewing together the instructions, counsel's legally correct arguments, and the evidence presented to the jury for its consideration, we do not believe that it is reasonably ' likely the jury was "misled to defendant's prejudice," ' " by believing that general intent was all that was necessary to convict defendants of attempted murder. (People v. Hughes (2002) 27 Cal.4th 287, 341.) The error was harmless under any standard. (See People v. Wilkins (2013) 56 Cal.4th 333, 350 [misinstruction on element of offense harmless if it appears beyond a reasonable doubt that the error did not contribute to the verdict]; but see Breverman, supra, 19 Cal.4th at p. 178 [erroneous omission of element prejudicial if it is "reasonably probable the error affected the outcome"]; see also Estelle v. McGuire (1991) 502 U.S. 62, 72 [allegedly misleading " 'instruction by itself so infected the entire trial that the resulting conviction violates due process' "]; Boyde v. California (1990) 494 U.S. 370, 380 [in case of ambiguous instruction proper inquiry is "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence"].)
Garcia further argues that the same error contributed to his conviction on count 3, assault with a deadly weapon by a life prisoner. Again we find no prejudice. The court did not explicitly state that this crime required only general intent; what it did unambiguously state, using CALCRIM No. 2720 and 2721, was that assault by a life prisoner pursuant to section 4500 must have been done willfully and with malice. Malice was defined in this context as either express, if he "unlawfully intended to kill the person assaulted," or implied, if he intentionally committed the act while knowing that the act was dangerous and with conscious disregard for human life. The jury did in fact find these elements to have existed beyond a reasonable doubt. Thus, under any standard no prejudice is shown by the court's error in reading CALCRIM No. 252 with regard to the jury's consideration of count 3.
5. Failure to Object to Prosecutor Misstatements during Argument
Ruiz's next contention, in which Garcia joins, is that trial counsel was ineffective for failing to object to misconduct by the prosecutor. At the beginning of his opening argument, the prosecutor said, "Couple of things that I wanted to mention. One, you were asked quite a bit in voir dire about the presumption of innocence. Okay. That's over. There's no presumption of innocence, at this point. You have the evidence. Now, you need to look at that and see what evidence you have, what is uncontroverted, and what you've heard, and what you—how you assess that." Neither attorney interjected an objection to this statement, and both defendants assert constitutionally defective representation as a result.
Courts have reached different conclusions regarding a prosecutor's suggestion that the presumption of innocence had disappeared. In People v. Goldberg (1984) 161 Cal.App.3d 170 (Goldberg) the appellate court rejected the defendant's claim of misconduct after the prosecutor stated, " 'And before this trial started, you were told there is a presumption of innocence, and that is true, but once the evidence is complete, once you've heard this case, once the case has been proven to you—and that's the stage we're at now—the case has been proved to you beyond any reasonable doubt. I mean, it's overwhelming. There is no more presumption of innocence. Defendant Goldberg has been proven guilty by the evidence.' " (Id. at p. 189.) In the Goldberg court's view, this comment reflected the principles articulated in section 1096 and CALJIC No. 2.90 was merely a "rhetorical" restatement of the rule that a defendant is presumed innocent " 'until the contrary is proved . . . .' " (Goldberg, supra, at p. 189.)
The Supreme Court in People v. Booker (2011) 51 Cal.4th 141, 185 (Booker) cited Goldberg with approval when the defendant challenged the following prosecutor statement to the jury: "I had the burden of proof when this trial started to prove the defendant guilty beyond a reasonable doubt, and that is still my burden. It's all on the prosecution. I'm the prosecutor. That's my job. [¶] 'The defendant was presumed innocent until the contrary was shown. That presumption should have left many days ago. He doesn't stay presumed innocent.' " (Id. at p. 183.) Upon objection by defense counsel, the trial judge told the jury, " 'Well, ladies and gentlemen, the presumption of innocence is the point at which you start the case. At some point you come to the conclusion the person is guilty, the presumption is gone. On the other hand, if you find the person is not guilty, the presumption of innocence is always there. Again, you have to interpret how to use that.' " (Id. at pp. 183-184.) The prosecutor then resumed his argument by stating, " 'As the Court instructed you, I was correct, that the defendant starts out with the presumption of innocence. That doesn't stay. That isn't an automatic thing forever. That's why we have a trial. Once the evidence convinces you he is no longer innocent, that presumption vanishes. That's all it is.' " (Id. at p. 184.) Our Supreme Court rejected the defendant's claim of prosecutorial misconduct: " 'Although we do not condone statements that appear to shift the burden of proof onto a defendant (as a defendant is entitled to the presumption of innocence until the contrary is found by the jury), the prosecutor here simply argued the jury should return a verdict in his favor based on the state of the evidence presented.' " (Id. at p. 185; see also People v. Romo (2016) 248 Cal.App.4th 682, 691-693 [finding "far more innocuous" than statements in Booker and Goldberg in prosecutor's assertion that " 'there's no presumption of innocence' " once the evidence proves guilt]; see also People v. Panah (2005) 35 Cal.4th 395, 463 (Panah ) [no prosecutorial misconduct by arguing that the evidence had " 'stripped away' " the "presumption of innocence" because it was made "in connection with [the prosecutor's] general point" that the evidence had overcome the presumption of innocence].)
Distinguishing the facts in Booker, the Second District, Division 6, considered the following argument to be improper misconduct: " 'Let me tell you that presumption [of innocence] is over. Because that presumption is in place only when the charges are read. But you have now heard all the evidence. That presumption is gone.' " (People v. Cowan (2017) 8 Cal.App.5th 1152, 1154.) In this "grossly inaccurate" statement, the appellate court held, "the prosecutor did not simply argue that the presumption of innocence had been overcome by the evidence. Instead, she told the jury the presumption ends with the reading of the charges. To put it another way, even before the evidence is received, the presumption of innocence disappears. This is an unfair attempt to lighten the prosecution's burden of proof and constitutes misconduct." (Id. at p. 160.)
In People v. Dowdell (2014) 227 Cal.App.4th 1388, 1407 (Dowdell), the prosecutor twice told the jury that the presumption of innocence was " 'over.' " "First, he argued that 'The evidence is overwhelming. My goal was to give [defendant Lincoln] a fair trial, he just got one. You have the evidence. The presumption of innocence is over. I have the evidence. It wasn't a fair fight, it wasn't supposed to be. Go and deliberate, be thorough and come back guilty on all counts.' (Italics added.) Similarly, he later argued that 'It's fairly obvious that Mr. Lincoln committed all of the crimes we are accusing him of. The presumption of innocence is over. He has gotten his fair trial. Be thorough, deliberate, and come back with guilty verdicts on all counts.' " (Ibid.) This court held that these comments were improper misstatements of the law, given that "the presumption of innocence continues into deliberations, and the presumption was in no sense 'over' when the prosecutor declared it to be so. [Citation.] Second, the prosecutor twice made this misstatement of the law." (Id. at p. 1408.)
"A prosecutor's conduct violates the federal Constitution when it infects the trial with unfairness, and violates state law if it involves the use of deceptive or reprehensible methods of persuasion. [Citation.] To preserve a misconduct claim for appellate review, a defendant must make a timely objection and ask the trial court to admonish the jury to disregard the remark (or conduct) unless such an admonition would not have cured the harm. [Citation.] When the claim focuses on the prosecutor's comments to the jury, we determine whether there was a reasonable likelihood that the jury construed or applied any of the remarks in an objectionable fashion." (Booker, supra, 51 Cal.4th at pp. 184-185; People v. Jackson (2016) 1 Cal.5th 269, 349.)
In Dowdell the defense attorney failed to make the requisite objection, and no exceptions were applicable; the defendant could not show the futility of any objection or the insufficiency of any resulting admonition to cure the harm. This court concluded that defendant had therefore forfeited the misconduct claim on appeal. Further, the failure to object did not constitute ineffective assistance of counsel: In light of the "abundant" evidence of his guilt, the defendant had not established prejudice—that is, "a reasonable probability of a more favorable outcome had his trial counsel objected to the remarks." (Dowdell, supra 227 Cal.App.4th at p. 1408.)
In this case, assuming the prosecutor's argument to have been improper, we find no constitutionally ineffective assistance of counsel. "Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (Ledesma, supra, 43 Cal.3d at p. 215.) To prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish both that his counsel's performance was deficient and that he suffered prejudice. (Strickland, supra, 466 U.S. at p. 687.) The deficient performance component of an ineffective assistance of counsel claim requires a showing that "counsel's representation fell below an objective standard of reasonableness" "under prevailing professional norms." (Id. at p. 688.) With respect to prejudice, a defendant must show that "there is a reasonable probability"—meaning "a probability sufficient to undermine confidence in the outcome"—"that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.) We "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." (Id. at p. 697; People v. Anderson (2001) 25 Cal.4th 543, 569.)
Like our Supreme Court, "we do not condone statements that appear to shift the burden of proof onto a defendant (as a defendant is entitled to the presumption of innocence until the contrary is found by the jury)." (Booker, supra, 51 Cal.4th at p. 185.)
In evaluating an ineffective assistance of counsel claim on appeal, we presume, absent defendant's contrary showing, 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." ' [Citations.] When the record on direct appeal sheds no light on why counsel failed to act in the manner challenged, defendant must show that there was ' " 'no conceivable tactical purpose' " for counsel's act or omission. [Citations.]' '[T]he decision facing counsel in the midst of trial over whether to object to comments made by the prosecutor in closing argument is a highly tactical one' . . . [citation], and 'a mere failure to object to evidence or argument seldom establishes counsel's incompetence.' [Citation.]" (People v. Centeno (2014) 60 Cal.4th 659, 675; (People v. Lewis (2001) 25 Cal.4th 610, 675.)
Here we find no constitutionally inadequate representation by either defense attorney based only on the lack of objection to the prosecutor's remark on the presumption of innocence. The trial court thoroughly and accurately instructed the jury on the presumption of innocence, using CALCRIM No. 220. The court also emphasized, using CALCRIM No. 200, that the jurors "must follow the law as I explain it to you, even if you disagree with it. If you believe the attorneys' comments on the law conflict with my instructions, you must follow my instructions." (Italics added.) Further, it is not inconceivable that Ruiz's attorney made a tactical decision to withhold his objection, preferring instead to correct the impression the jurors may have drawn from the prosecutor's apparent misstatement in his own argument. At the outset of his remarks to the jury Ruiz's attorney said, "[A]lthough I respect and admire my colleague, [prosecutor] Mr. Frost, for many years, I have to disagree with him once again. That presumption of innocence isn't gone yet. Not unless and until you collectively find him guilty of one or more of the charges." (Italics added.) On this record, we cannot agree with defendants either that there was "no conceivable tactical purpose" for counsel's silence during the prosecutor's opening remarks or that an objection would have resulted in a more favorable outcome.
CALCRIM No. 220, as read to the jury, stated, in part: "A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt . . . . [¶] Unless the evidence proves the defendants guilty beyond a reasonable doubt, they are entitled to an acquittal, and you must find them not guilty." --------
6. Cumulative Prejudice
Ruiz contends that even if each individual error was harmless, the cumulative effect of the asserted errors compels reversal. (See People v. Hill (1998) 17 Cal.4th 800, 844 ["a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error"].) We disagree. We have concluded that the lack of sua sponte instructions on self-defense was not error, and that Ruiz did not receive ineffective assistance of counsel at trial. The misstep in instructing the jury on the intent required for attempted murder was clearly nonprejudicial. Thus, to the extent that error occurred, no significant prejudice accrued to Ruiz. Considered either individually or in the aggregate, the errors of which he complains did not adversely affect the outcome or deny him a fair trial.
7. Sentence Correction
The trial court sentenced Garcia to "life without the possibility of parole for 27 years to life." The 27-year term consisted of nine years for the section 4500 violation in count 3, tripled under the three strikes law, plus a stayed term of 25 years to life for count 1, the attempted murder. The People appropriately agree that Garcia should not have been denied parole during the entire 27-year period of his prison term; the correct sentence should be "27 years to life," We will order the judgment (not merely the abstract) corrected accordingly.
Disposition
The judgment as to Ruiz is affirmed. The judgment as to Garcia is modified to reflect a prison sentence of 27 years to life on count 3. The trial court is directed to prepare an amended abstract of judgment reflecting these changes and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As so modified the judgment as to Garcia is affirmed.
/s/_________
ELIA, Acting P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.