Opinion
D075367
11-08-2019
THE PEOPLE, Plaintiff and Respondent, v. IRINEO ROBLES GOMEZ, Defendant and Appellant.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, County Counsel, Gerald A. Engler, Chief Deputy County Counsel, and Julie L. Garland, Charles C. Ragland and Scott C. Taylor, Deputies County Counsel, for Plaintiff and Respondent.
ORDER MODIFYING OPINION NO CHANGE IN JUDGMENT THE COURT:
It is ordered that the opinion filed herein on November 8, 2019, be modified as follows:
On page 1, paragraph three is deleted in its entirety and replaced with the following:
Xavier Becerra, Attorney General, Gerald A. Engler, Assistant Attorney General, and Julie L. Garland, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
There is no change in the judgment.
HUFFMAN, Acting P. J. Copies to: All parties
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BAF1601628) APPEAL from an order of the Superior Court of Riverside County, Jorge Hernandez, Judge. Affirmed as modified and remanded with directions. Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, County Counsel, Gerald A. Engler, Chief Deputy County Counsel, and Julie L. Garland, Charles C. Ragland and Scott C. Taylor, Deputies County Counsel, for Plaintiff and Respondent.
Irineo Robles Gomez (Gomez) shot and killed his uncle Pascual and wounded his cousin, Pascual's son, Josue (together, the victims). Rejecting his mistaken identity defense, a jury convicted Gomez of premeditated murder and attempted premeditated murder. (Pen. Code, §§ 187, subd (a), 664.) As to both counts, the jury found true allegations that Gomez personally discharged a firearm causing great bodily injury or death. (§ 12022.53, subd. (d).) The trial court sentenced Gomez to a total term of 82 years to life.
Undesignated statutory references are to the Penal Code.
Gomez appeals, contending the evidence does not support the jury's finding that he was the shooter. Assuming we reject this contention, he claims the evidence does not show that he acted with premeditation and deliberation as to both the murder and attempted murder. He also asserts that the trial court prejudicially erred by allowing Josue's brother's testimony about seeing him with a .32 caliber handgun about six weeks prior to the shootings. He further claims that the prosecutor committed error during closing argument by twice misstating the evidence and conflating the element of intent to kill with the requirements to prove premeditation and deliberation. Alternatively, he asserts that he received ineffective assistance of counsel because his counsel failed to object. Gomez asserts that the cumulative effect of the purported errors was prejudicial. Finally, Gomez asks us to independently review sealed police personnel records under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
We find no Pitchess error. We modify the order to reflect a conviction for second degree murder, and remand the matter to the trial court for resentencing. In all other respects, we affirm the order.
FACTUAL BACKGROUND
Josue's Identification of the Shooter
A deputy sheriff who responded to the shooting recorded Josue's statements. The jury heard the recording. Josue stated that his cousin "Noe" who lived "right here at the corner of my house" had shot him. At the hospital a homicide detective used an alphabet chart to communicate with Josue. When asked who shot him, Josue spelled out "Neo," and then spelled out defendant's name, "Irineo Robles."
The detective later conducted a recorded interview with Josue in the hospital. The jury heard the recording. During this interview Josue said that he, his father Pascual, his cousin Neo, and two other men were sitting in a circle near a pine tree drinking. The other men were Pascual's friend, Anastacio, and an older man.
The older man present during the shooting was extremely intoxicated and would not cooperate with police. He told police that the shooter left in a white truck. This person was not available to testify at trial.
Josue claimed that Pascual and Gomez got into an argument, Pascual stood up and moved toward Gomez. Gomez pulled out a silver gun when Pascual stood up. The gun looked like a .9 millimeter. Josue and Pascual both told Gomez to put the gun away. Josue stood up and Gomez shot him twice in the abdomen and chest. When asked why Gomez shot him, Josue replied "[be]cause I got in front of him." When asked again, Josue replied that Gomez "h[e]ld a grudge." Gomez then shot Pascual as Josue ran for help. Pascual died from three gunshot wounds to his torso and one to his abdomen.
Josue stated that he did not "get along" with Gomez and wanted Gomez "to get caught." Josue explained that Gomez "beat [him] up" over a girl three or four months prior to the shooting. Also, within the last three weeks, Josue and Gomez each threatened to kill the other because Gomez believed that Josue had stolen some marijuana plants.
A detective showed Josue a photograph of Gomez. Josue identified Gomez as the shooter, however, he stated that Gomez's name was "Neo Robles Vidaca." There is another "Neo" in the family, Irineo Diaz, also known as Irineo Vidaca. This person lived in Los Angeles.
At the preliminary hearing, Josue claimed that he could not remember who shot him or anything about the shooting incident. Josue appeared at trial, but refused to testify. The court declared Josue to be unavailable and the People read Josue's preliminary hearing transcript about his lack of memory to the jury. The People used Josue's recorded statements to police immediately after the shooting and during his hospitalization to establish Gomez's identity as the shooter.
Anastacio's Identification of the Shooter
On the day of the shooting Anastacio went to Pascual's home to get his car fixed. After Pascual looked at the car, he invited Anastacio to sit near a tree and have a beer. Anastacio sat down with Pascual, Josue, Gomez and another older man. Anastacio saw Gomez shoot both Josue and Pascual. After the shooting Anastacio ran to his car, a white Ford Explorer, and left.
During a photographic lineup, Anastacio identified Gomez as the shooter, stating that the photograph looked like the shooter. He was about 50 percent certain regarding the identification. The police considered this to be a probable identification. When Anastacio made the identification, police were aware of Irineo Diaz Vidaca, but they did not show a photograph of this individual to Anastacio because they had already ruled out this individual as a suspect.
At the preliminary hearing, held about seven months after the shooting, Anastacio identified Gomez as looking similar to the photograph police had earlier shown him. Anastacio acknowledged that the photograph police had shown him influenced this identification. At trial, Anastacio identified Gomez as the shooter.
The Investigation and Trial Testimony
Police initially believed that Irineo Diaz Vidaca committed the shooting. Within three days after the shooting, however, police ruled him out as a possible suspect.
Forensic toxicology analysis of Pascual's blood revealed a blood alcohol level of .16 percent, which is twice the legal limit for driving purposes. His blood also contained .026 milligrams per liter of methamphetamine.
Police did not recover a firearm, but collected six expended .32 caliber bullet casings from the scene. The six bullet casings had been fired from the same gun. A projectile recovered from Pascual's body was consistent with a .32 caliber bullet. During his hospital interview, Josue stated that he had previously seen Gomez with the gun he used in the shooting, a small silver gun. He believed that the gun was a .9 millimeter and stated that "[Gomez] always had it." Josue's brother, Juan, stated that Gomez had multiple guns, including a chrome .32 caliber handgun.
Two searches of the property where the shooting occurred revealed no indicia of residency and nothing related to Gomez. Police, however, found a receipt with the name "Gabriel Diaz." Police showed Pascual's sister a photograph of Irineo Diaz Vidaca. She told them that this was not Gomez.
Josue's brother Juan stated that he lived with Gomez for a while on the same property with Pascual and Josue. Juan knew about another Irineo in the family, could recognize this person, but did not know his last name. Juan recognized a photograph of the other Irineo and remembered that his last name was Vidaca when counsel asked if that "r[a]ng a bell." Juan knew that he had never lived with this other Irineo.
DISCUSSION
I. Sufficiency of the Evidence
A. General Legal Principles
"When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. . . . We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence." (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
" 'Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.' " (People v. Clark (2011) 52 Cal.4th 856, 943.) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Little (2004) 115 Cal.App.4th 766, 771.) The testimony of a single witness, if believed by the jury, is sufficient to support a conviction, unless that testimony is physically impossible or inherently improbable. (People v. Young (2005) 34 Cal.4th 1149, 1181.) " '[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (People v. Hatch (2000) 22 Cal.4th 260, 272, italics omitted.) Reversal is not warranted "unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.) B. Shooter Identification
Gomez contends that even viewing the evidence in the light most favorable to the prosecution, there is no substantial evidence from which the jury could find beyond a reasonable doubt that he committed the shootings. We disagree.
We uphold a conviction based on an identification if supported by substantial evidence. (People v. Cuevas (1995) 12 Cal.4th 252, 257.) For a reviewing court " 'to set aside a jury's finding of guilt the evidence of identity must be so weak as to constitute practically no evidence at all.' " (People v. Mohamed (2011) 201 Cal.App.4th 515, 521-523.)
"The strength or weakness of the identification, the incompatibility of and discrepancies in the testimony, if there were any, the uncertainty of recollection, and the qualification of identity and lack of positiveness in testimony are matters which go to the weight of the evidence and the credibility of the witnesses, and are for the observation and consideration, and directed solely to the attention of the jury in the first instance and then the trial court upon the motion for new trial. [Citation.] The general rule, then, is that it is not essential that a witness be free from doubt as to one's identity. He may testify that in his belief, opinion or judgment the accused is the person who perpetrated the crime, and the want of positiveness goes only to the weight of the testimony." (People v. Lindsay (1964) 227 Cal.App.2d 482, 493-494 (Lindsay), fn. omitted.)
Applying these principles, we conclude a reasonable jury could have found beyond a reasonable doubt that Gomez was the shooter based on Anastacio's in-court identification of Gomez and Josue's recorded statements to police. The direct evidence of one witness is sufficient for proof of any fact. (Evid. Code, § 411.) Additionally, it was the jury's role to determine witness credibility, and the truth or falsity of the facts. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 161-162.)
Significantly, the parties fully litigated the identity of the shooter at trial. During pretrial motions, the parties advised the court that whether Irineo Diaz Vidaca was the shooter would be an issue at trial. The prosecutor agreed this was permissible and the trial court allowed this line of questioning.
During trial, the court took judicial notice that "Noe" was "a well-known and common name." Defense counsel's closing argument focused on the alleged misidentification between Gomez, Irineo Diaz Vidaca and a third cousin named "Noe." Counsel argued that a reasonable inference existed that Gomez was not the shooter and the People did not prove beyond a reasonable doubt that Gomez was the shooter.
On appeal, Gomez focuses on weaknesses in the People's case. He argues that: (1) Anastacio's viewing of Gomez's photograph during the photographic lineup impacted Anastacio's identification of him at the preliminary hearing; (2) police did not show Anastacio a photograph of the other "Neo"; (3) police admitted that Anastacio's photographic lineup identification was only a probable identification; (4) Josue told police immediately after the shooting that "Noe" had shot him; (5) during the hospital interview, Josue referred to the shooter as "my cousin" and "Neo," but identified a photograph of Gomez as Irineo Robles Vidaca; (5) no physical evidence tied him to the scene at the time of the shooting; and (6) law enforcement witnesses never made a connection between him and the gun used in the incident. These facts, however, go to the weight of the identification for the jury to assess. (Lindsay, supra, 227 Cal.App.2d at pp. 493-494.) Where, as here, "the circumstances surrounding the identification and its weight are explored at length at trial, where eyewitness identification is believed by the trier of fact, that determination is binding on the reviewing court." (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.) C. Premeditation and Deliberation
Gomez argues that his convictions for willful, deliberate, and premeditated murder and attempted premeditated murder must be reversed because the evidence did not prove the required elements of premeditation and deliberation for first-degree murder, or premeditation for attempted premeditated murder. He asserts that the jury found premeditation and deliberation by speculation and conjecture.
Viewed in the light most favorable to the jury's finding, we conclude that evidence supports the verdict of attempted premeditated murder. The evidence, however, does not furnish a reasonable foundation for a jury to infer that Gomez killed Pasqual with premeditation and deliberation. 1. Josue's Attempted Murder
" '[A]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.' " (People v. Smith (2005) 37 Cal.4th 733, 739.) Section 664, subdivision (a), enhances an attempted murderer's sentence where the "crime attempted is willful, deliberate, and premeditated." To support a finding that an attempted murder was willful, deliberate, and premeditated, there must be sufficient evidence that a defendant carefully weighed considerations in choosing a course of action and thought about his conduct in advance. (People v. Virgo (2013) 222 Cal.App.4th 788, 798-799.)
In determining whether an attempted murder was premeditated and deliberate, courts consider three factors first identified in People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson): planning activity, motive, and the manner of killing. The Anderson factors serve as analytical guideposts and are neither exclusive nor determinative. (People v. Cage (2015) 62 Cal.4th 256, 276 (Cage).) Evidence of all three Anderson elements is not necessary to sustain a conviction. (People v. Edwards (1991) 54 Cal.3d 787, 813-814 [no evidence of motive].) "However, '[w]hen the record discloses evidence in all three categories, the verdict generally will be sustained.' " (People v. Stitely (2005) 35 Cal.4th 514, 543.) As explained next, all three Anderson guideposts are present here.
Josue's statements provided a reasonable basis for the jury to infer a motive for the attempted murder. Josue told police that he did not "get along" with Gomez. Josue explained that Gomez "beat [him] up" over a girl three or four months before the shooting. About three weeks before the shooting, Gomez threatened to kill Josue for stealing marijuana. Additionally, Juan described the relationship between Gomez and Josue as "awkward" and "sketchy." Juan believed that his presence kept things "chill" between Josue and Gomez, but Juan was not present the night of the shooting.
Gomez's possession of a loaded gun also supports an inference that Gomez planned his action. (People v. Lee (2011) 51 Cal.4th 620, 636 [premeditation evidenced by defendant's possession of a loaded handgun, indicating he considered the possibility of a violent encounter]; People v. Adcox (1988) 47 Cal.3d 207, 240 [bringing a loaded gun and using it to kill the victim from less than six feet away was evidence of prior planning and premeditation].) While this inference is weakened by Josue's statement to police that Gomez "always" had a "little silver" gun, the jury could have rationally concluded that Gomez acted after a period of reflection based on the manner of the shooting.
Anastacio testified that after he accepted Pascual's invitation to sit down and have a beer, about 30 minutes elapsed before the shooting. Although he did not know whether there had been an argument before his arrival, Anastacio agreed that everybody was getting along and "everything was fine" before the shooting started. He did not see Josue, Pascual or the old man with any weapons and did not hear Josue make any threats.
Josue told police that everyone was sitting drinking beer when Gomez got into an argument with Pascual. Gomez pulled out a gun when Pascual stood up. Josue and Pascual both told Gomez to put the gun away. Josue stated that Gomez "c[]ocked [the gun] and once I got up he just looked at me, and he was like, ah,___, at me and shot me . . . boom, boom."
The manner of the shooting also supports the premeditation and deliberation finding. "[A] close-range shooting without any provocation or evidence of a struggle, reasonably supports an inference of premeditation and deliberation." (People v. Thompson (2010) 49 Cal.4th 79, 114-115; People v. Lunafelix (1985) 168 Cal.App.3d 97, 102 [Lack of provocation by a victim "is a strong factor supporting the conclusion that [an] attack was deliberately and reflectively conceived in advance."].) Moreover, Josue's and Pascual's requests that Gomez put the gun away show that Gomez had sufficient time to deliberate—and did so—before shooting Josue, who was unarmed and had made no threats.
In sum, viewing the evidence in the light most favorable to the verdict, there was sufficient evidence for the jury to conclude that Gomez had ample time to premeditate and deliberate, and did so, before shooting Josue. 2. Pasqual's Murder
We reach a different conclusion as to Pasqual's killing.
Murder is divided into first and second degree murder. (§ 189.) First degree murder includes murder that is "willful, deliberate, and premeditated." (Ibid.) Second degree murder requires malice, either express (intent to kill) or implied (the intentional commission of a life-threatening act, with conscious disregard for life), but not willfulness, premeditation, and deliberation. (People v. Chun (2009) 45 Cal.4th 1172, 1181.) More than a specific intent to kill is required to support a finding of deliberation and premeditation. (People v. Koontz (2002) 27 Cal.4th 1041, 1080 (Koontz).) " 'Deliberation' refers to careful weighing of considerations in forming a course of action; 'premeditation' means thought over in advance." (Ibid.)
"Premeditation and deliberation do not require an extended period of time, merely an opportunity for reflection." (People v. Cook (2006) 39 Cal.4th 566, 603.) The presumption is that an unjustified killing is second degree murder, not first degree murder. (Anderson, supra, 70 Cal.2d at p. 25.) "[T]the People bear the burden of establishing beyond a reasonable doubt that the killing was the result of premeditation and deliberation, and that therefore the killing was first, rather than second, degree murder." (Ibid.)
There is insufficient evidence to sustain a finding that Gomez formed the intent to kill Pascual upon preexisting reflection, actual deliberation, or forethought. (Anderson, supra, 70 Cal.2d at p. 26.) First, there is no evidence of motive. At trial, the prosecutor argued that "bad blood" existed between Gomez and Josue. He provided no explanation, however, regarding the nature of the relationship between Gomez and Pascual. Instead, he suggested that Gomez's desire to eliminate a witness to Josue's shooting motivated the killing.
"An inference is a 'conclusion reached by considering other facts and deducing a logical consequence from them.' [Citation.] 'The strength of an inference may vary widely. In some circumstances, the preliminary facts may virtually compel the conclusion. In other circumstances, the preliminary facts may minimally support the conclusion. But to constitute an inference, the conclusion must to some degree reasonably and logically follow from the preliminary facts. If, upon proof of the preliminary facts, the conclusion is mere guesswork, then we refer to it by such words as speculation, conjecture, surmise, suspicion, and the like; and it cannot rise to the dignity of an inference.' " (People v. Boatman (2013) 221 Cal.App.4th 1253, 1265-1266 (Boatman).)
Here, the preliminary facts viewed in the light most favorable to the verdict are: (1) Gomez and Pascual had a disagreement; (2) Pascual stood up and moved toward Gomez; (3) Gomez pulled out a gun when Pascual stood up; (4) Josue and Pascual told Gomez to put the gun away; (5) Josue stood up and Gomez shot him twice in the abdomen and chest; (6) Gomez then shot Pascual four times as Josue ran for help; and (7) Gomez fired no shots at Anastacio or the old man.
The People's theory that Gomez shot Pascual to eliminate a witness is unreasonable because there were two other witnesses to Josue's shooting, who Gomez did not attempt to kill—or even threaten. Apart from pure conjecture, there is no evidence that Gomez had a preconceived plan to kill Pascual, nor does the evidence support a reasonable inference that Gomez deliberated before shooting Pascual. (Koontz, supra, 27 Cal.4th at p. 1080.) Rather, the only reasonable inference from the evidence is that after shooting Josue, Gomez shot Pascual as a rash impulse. (Boatman, supra, 221 Cal.App.4th at p. 1264.)
The Attorney General's reliance on People v. San Nicolas (2004) 34 Cal.4th 614 to show that a first degree murder may be supported by evidence of a very brief period of reflection is misplaced as a full reading of the opinion does not support this conclusion. There, the defendant murdered his wife, raped his nine-year old niece, and then murdered the child. (Id. at pp. 624, 661.) After the crimes, defendant admitted stabbing his wife and claimed that while rinsing the knife he saw the child's reflection in a mirror. (Id. at p. 629.) He asserted that he grabbed the child, stabbed her, and then sexually molested the body. (Ibid.) Some of the forensic evidence, however, revealed that the child was alive during the rape. (Id. at pp. 660-661.) The jury found defendant guilty of rape, and rape requires a live victim. (Ibid.) In discussing whether sufficient evidence supported defendant's conviction for the deliberate and premeditated murder of the child, the Supreme Court noted defendant's admission that he killed the child after she saw him cleaning up after his wife's murder. (Id. at p. 658.) Although not discussed in the opinion, it is equally probable that defendant killed the child to prevent her from reporting the rape. Notably, the rape conviction and evidence showing that defendant raped the child before killing her severely undercuts defendant's claim he decided to kill the child after merely seeing her reflection in a mirror.
While we agree with the People that there was some evidence of premeditation and deliberation, we conclude that the evidence was not of reasonable, credible, and solid value from which a reasonable jury could have concluded beyond a reasonable doubt that Gomez premeditated and deliberated Pascual's killing.
Gomez made no claim that the evidence does not support a conviction of second degree murder. Accordingly, we reduce the conviction to second degree murder and remand for resentencing. (Anderson, supra, 70 Cal.2d at p. 23; § 1260 ["The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed . . . ."].)
II. Alleged Evidentiary Error
The trial court denied defense counsel's motion under Evidence Code section 352 to exclude Juan's testimony that he had seen Gomez with either a .9 millimeter or a .32 caliber handgun weeks before the shooting. At trial, Juan testified he had been around guns all his life and knew the difference between a revolver and a semiautomatic gun. About one month before the shooting he saw Gomez with a .45 caliber semiautomatic and twice saw him with a smaller chrome .32 or .38 caliber handgun. Juan did not testify about seeing a .9 millimeter handgun.
Gomez contends the court erred in admitting the evidence because it was irrelevant, created a strong likelihood of confusing or misleading the jury, and caused a verdict based upon speculation rather than reasonable inference. Alternatively, he claims the court abused its discretion in failing to exclude the evidence because it was unduly prejudicial and the erroneous admission of the evidence undermined his rights to due process and a fair trial.
Only relevant evidence is admissible. (Evid. Code, §§ 350, 351.) Relevant evidence is evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) The trial court has "wide discretion in determining relevance under this standard." (People v. Kelly (1992) 1 Cal.4th 495, 523.) Under Evidence Code section 352, "[a] trial court may exclude otherwise relevant evidence when its probative value is substantially outweighed by concerns of undue prejudice, confusion, or consumption of time." (People v. Scott (2011) 52 Cal.4th 452, 490.) "Evidence is substantially more prejudicial than probative [citation] if, broadly stated, it poses an intolerable 'risk to the fairness of the proceedings or the reliability of the outcome [citation].' " (People v. Waidla (2000) 22 Cal.4th 690, 724.)
A trial court's exercise of discretion under Evidence Code section 352 will not be overturned on appeal absent a manifest abuse of that discretion. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.) " 'It is . . . well settled that the erroneous admission or exclusion of evidence does not require reversal except where the error or errors caused a miscarriage of justice. [Citation.] "A 'miscarriage of justice' should be declared only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." ' " (People v. Fields (2009) 175 Cal.App.4th 1001, 1018.)
To the extent Gomez claims the trial court erred in admitting evidence regarding the .45 caliber handgun, this claim is forfeited because he did not object to this evidence in the trial court. (Perez v. Grajales (2008) 169 Cal.App.4th 580, 591-592 ["arguments raised for the first time on appeal are generally deemed forfeited"].) Regardless of forfeiture, however, this brief testimony about another handgun, not connected to the shooting, presented a very low risk of jury confusion and was not unduly prejudicial.
We disagree with Gomez's relevancy argument regarding his possession of either a .32 or .38 caliber chrome handgun at some unknown time before the shooting. In People v. Carpenter (1999) 21 Cal.4th 1016, the California Supreme Court found no error when a witness testified that a murder defendant told her he kept a gun in his van and another witness testified that the defendant showed her a gun that "look[ed] like" the murder weapon. (Id. at p. 1052.) "Although the witnesses did not establish the gun necessarily was the murder weapon, it might have been. . . . The evidence was thus relevant and admissible as circumstantial evidence that he committed the charged offenses." (Ibid.; People v. Homick (2012) 55 Cal.4th 816, 877, fn. 36 [To admit evidence of defendant's possession of a weapon, "(1) some degree of connection between the weapon and the crime must be shown before it is admissible, but (2) this determination turns on the facts of the individual case."].) Gomez's argument that the .32 or .38 caliber handgun Juan saw was not necessarily the firearm used in the crime goes to the weight of the evidence. "The final determination as to the weight of the evidence is for the jury to make." (People v. Brown (2014) 59 Cal.4th 86, 106.) Accordingly, we conclude that the court did not err by finding evidence of this handgun relevant.
Nor did the trial court err in declining to exclude this evidence as unduly prejudicial under Evidence Code section 352. "On the prejudice side of the scale, we are concerned only with the possibility of an emotional response to the proposed evidence that would evoke the jury's bias against defendant as an individual unrelated to his guilt or innocence." (People v. Gunder (2007) 151 Cal.App.4th 412, 417.) We discern no undue prejudice from the evidence and find no abuse of discretion on the part of the trial court in declining to exclude the evidence under Evidence Code section 352.
III. Alleged Prosecutorial Error
A. Additional Background
The prosecutor argued that Gomez decided to shoot Josue, stating: "He's had enough of Josue []. He's had enough of Josue's antics, Josue's disrespect. He's had enough of the bad blood between him and Josue. And [Gomez] is going to show Josue who's in charge. So he shoots Josue." The prosecutor then argued that the case was not about who did it, rather it was a case about "what is it." After arguing that Gomez intended to kill the victims, the prosecutor explained the law regarding premeditation and deliberation as follows:
"[PROSECUTOR]: [W]hat's the difference between second degree and first degree is this: willful, deliberate, premeditated. If that exists, and I'll talk to you about what that is and why it exists in this case, you have a first degree murder. If that does not exist, no premeditation, willfulness, or deliberation, you're still at second degree murder because you have an intent to kill another human being.
"So CALCRIM 521 defines for us what this—sometimes we call it premed for short which is short for premeditation. But it includes premeditation, willfulness, and deliberation. And those are defined in CALCRIM 521. The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation.
"He acted willfully if he intended to kill. We've talked about that. He acted deliberately if he carefully weighed considerations for and against his choice and knowing the consequences decided to kill. We'll talk about that. And he acted with premeditation if he decided to kill before completing the act that caused the death. And that just means he decided—before he started pulling the trigger and pumping his two victims full of bullets, he decided before he's doing the act that he's intending to kill them. And that of course exists in this case. That's why he pulled the trigger. So we'll talk about deliberation and whether it exists. And I submit to you it does.
"The length and time a person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. So it's not ten seconds or 20 seconds or one second or five minutes. That's not set in stone. This is something you as jurors—reasonable jurors using common sense can decide. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate. So it's not first degree murder if that's the case.
"On the other hand, this is important, a cold, calculated decision to kill can be reached quickly. And that's what we have here with the
murder of Pascual []. The test is the extent of the reflection, not the length of time. And this has to be proved beyond a reasonable doubt.
"So I want to talk about this deliberation period. And what we have here is a situation. The defendant makes a decision to shoot his cousin Josue []. We'll call him A, person A. As a result of shooting Josue [], Pascual gets up basically, like, what are you doing? You just shot my son. That's probably what's going through his mind. The defendant does this, and this is why it's first degree murder: He sees Pascual get up. And he makes the decision to eliminate him, to kill him. Why? Because he's a witness to what the defendant just did to Josue.
"[DEFENSE COUNSEL]: Objection. Misstates the evidence.
"[THE COURT]: Ladies and gentlemen, what the lawyers say is not evidence. It's what their take of the evidence is. But nothing they say is evidence. So he can argue some things, but it's not evidence. Okay?
"[PROSECUTOR]: The evidence you've heard shows Pascual [] was there and witnessed the defendant perpetrating these crimes. Now, when you're deciding whether this decision the defendant made to kill Pascual was cold and calculated, consider why he would've done it. If his beef is with Josue, why shoot Pascual? To get rid of him, to make it so Pascual can't make a statement to police which is precisely what happened, to make it more likely for him, the defendant, to get away with this crime."
"Now, you could say well, why didn't he shoot Anastacio? Why didn't he shoot [the old man]? Anastacio was gone. And maybe he—the defendant figured well, the [old man], no one's going to believe him. He's the town drunk or he's not going to be around by the time this case goes trial. So this simple timeline of events of the shooting is evidence of why the murder of Pascual is first degree murder, why the defendant's decision, albeit a quick one, was a calculated one and a cold-blooded one. And Pascual is dead because of that decision.
"And more evidence of deliberation and more evidence that this was a calculated decision, the defendant fired six shots because there were six casings found on the ground. All six of those shots hit his
target. That's impressive even from a range of under 10 feet. That means he's concentrating and thinking about what he's doing. He's not freaking out and shooting a gun in the air and, you know, some of the bullets hit his victims and some of them don't.B. Analysis
"He shoots at one person twice and hits him both times. And then he turns on his second victim, shoots at him four times and hits him four times. That's an impressive feat. And the reason it's impressive or the reason he was able to do it is because he was thinking about what he's doing. And he's acting coldly and he's deliberating about it. So the six bullets hitting six victims is more evidence of why the murder of Pascual [] is first degree murder.
"So to kind of recap here, we have—let's start with whether or not the defendant perpetrating these crimes or in perpetrating these crimes he was intending to kill his victims Pascual and for the same reasons we'll talk in a second Josue because all this applies to attempted murder as well, an intent to kill, premeditation, all applies to attempted murder.
"We're starting with second degree murder because we know he had an intent to kill both Josue and Pascual. And the questions I ask you to decide, ladies and gentlemen, and I want you to come up with the right answer and I urge you that that right answer is first degree murder. But the question is really is what is it? Not a who done it, what is it?" (Italics added.)
Gomez contends that the prosecutor misstated the law by collapsing the distinction between second degree intentional murder and first degree deliberate and premeditated murder and expressing nothing more than the concept that he had the intent to kill. He contends that this error likely caused confusion and misled the jury, preventing a reliable jury verdict under due process principles.
Gomez next argues that the prosecutor misstated the evidence when he conjectured that: (1) after sitting with the group, drinking and having a good time, Gomez decided he "had enough" of Josue's disrespect and antics and pulled out his gun to "show Josue who's in charge"; and (2) the sequence of the shootings, shooting Josue first, followed by the immediate shooting of Pascual was based on a deliberate decision by Gomez to eliminate a witness.
Gomez objected to the prosecutor's argument that his motive to kill Pascual was to eliminate him as a witness. The trial court did not rule on the objection, but instructed the jury that what the lawyers say is not evidence. Gomez contends this argument misstated the evidence and was illogical since two other witnesses to Josue's shooting were not shot.
A prosecutor commits misconduct by misstating material facts or relying on facts that are not in evidence. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 95.) Referring to facts not in evidence constitutes misconduct when the prosecutor has essentially acted as his own witness by "offering unsworn testimony not subject to cross-examination." (People v. Hill (1998) 17 Cal.4th 800, 828.) However, prosecutors have wide latitude to comment on the state of the evidence and draw reasonable inferences or deductions. (People v. Martinez (2010) 47 Cal.4th 911, 957.) " 'Whether the inferences the prosecutor draws are reasonable is for the jury to decide.' " (People v. Wilson (2005) 36 Cal.4th 309, 337.) "When attacking the prosecutor's remarks to the jury, the defendant must show that, '[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained- of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.' " (People v. Centeno (2014) 60 Cal.4th 659, 667 (Centeno).)
Here, the prosecutor did not attempt to prove his case by attesting to facts that were not in evidence before the jury. Instead, he asked the jury to draw inferences from the evidence, which included that Gomez's motive to kill Pascual was to eliminate him as a witness. Shortly thereafter, the prosecutor argued, without objection, that Gomez could not kill Anastacio because Anastacio ran away and did not bother to kill the old man because he is the "town drunk" and no one's going to believe him or he would not be around by the time the case went to trial. Counsel's argument "did not mischaracterize the evidence or assume facts not in evidence, but merely commented on the evidence and made permissible inferences." (People v. Valdez (2004) 32 Cal.4th 73, 134.) Moreover, the trial court reminded the jury that statements by attorneys are not evidence. Thus, "[e]ven if we were to assume there was some impropriety in the prosecutor's argument, it was cured when the trial court instructed the jury with the standard admonition that argument is not evidence." (People v. Cash (2002) 28 Cal.4th 703, 734.)
Gomez failed to object to the prosecutor's arguments that (1) his motive to kill Josue was he "had enough" of Josue's disrespect and to show him "who's in charge", and (2) allegedly conflating the law on premeditation and intent to kill. The People contend, and we agree, that Gomez forfeited these claims of prosecutorial error by failing to make a timely objection. (People v. Maciel (2013) 57 Cal.4th 482, 541.) There is nothing in the record indicating that an objection would have been futile or that the prosecutor's argument was "so extreme or pervasive that a prompt objection and admonition would not have cured the harm." (Centeno, supra, 60 Cal.4th at p. 674.) Accordingly, for these two issues we analyze Gomez's alternative argument that defense counsel's failure to object constituted ineffective assistance of counsel.
To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) deficient performance by his counsel and (2) resulting prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687; Centeno, supra, 60 Cal.4th at p. 674.) While we presume counsel's performance fell within a wide range of professional competence and sound trial strategy, counsel is deficient if there is no conceivable tactical purpose for the failure to object. (Centeno, at pp. 674-675.) Prejudice is shown if there is no " 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " (Id. at p. 676.) Because the decision whether to object to a prosecutor's comments during closing argument is highly tactical, " 'a mere failure to object to evidence or argument seldom establishes counsel's incompetence.' " (Id. at p. 675.) "On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
First, regarding the prosecutor's argument that Gomez was motivated to kill Josue because he "had enough" of Josue's disrespect and to show him "who's in charge", the record shows that the prosecutor based this argument on the evidence. Juan testified that Gomez and Josue had a poor relationship. Josue also told police that he and Gomez did not get along and had threatened to kill each other.
Defense counsel could have reasonably chosen not to object because (1) he viewed the statements as being within the prosecutor's province to reasonably characterize the evidence, and (2) the trial court instructed the jury that counsel's remarks during closing argument are not evidence. (CALCRIM Nos. 104 & 222.) Trial counsel is not obligated to raise meritless objections to forestall an appellate claim of ineffective assistance of counsel. (People v. Riel (2000) 22 Cal.4th 1153, 1202 ["no duty to object simply to generate appellate issues"].) Additionally, jurors are presumed to understand and follow the trial court's instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
Finally, as to the prosecutor's argument allegedly conflating the law on premeditation and intent to kill, Gomez claims that the prosecutor's arguments expressed nothing more than an intent to kill before the act, which is not synonymous with the elements of deliberation and premeditation. He claims that the argument eliminated the distinction between first and second degree murder, and provided the jury a confusing, fundamentally flawed, and misleading explanation of premeditation and deliberation. We disagree.
Murder is the unlawful killing of a human being "with malice aforethought." (§ 187, subd. (a).) "Malice may be either express or implied. [Citation.] Express malice is an intent to kill. . . . Malice is implied when a person willfully does an act, the natural and probable consequences of which are dangerous to human life, and the person knowingly acts with conscious disregard for the danger to life that the act poses." (People v. Gonzalez (2012) 54 Cal.4th 643, 653.) "A killing with express malice formed willfully, deliberately, and with premeditation constitutes first degree murder. [Citation.] 'Second degree murder is the unlawful killing of a human being with malice aforethought but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction of first degree murder.' " (People v. Beltran (2013) 56 Cal.4th 935, 942.)
Comparing the italicized portions of the prosecutor's statements (set forth above) with the italicized portions of CALCRIM No. 521 (set forth below in footnote 4), shows that the prosecutor's comments directly tracked CALCRIM No. 521. CALCRIM No. 521 is consistent with its predecessor, CALJIC No. 8.20. The California Supreme Court has held that CALJIC No. 8.20 is a correct statement of the law. (People v. Millwee (1998) 18 Cal.4th 96, 135, fn. 13 [CALJIC No. 8.20 is a correct statement of the law]; People v. Lucero (1988) 44 Cal.3d 1006, 1021 ["The trial court had correctly defined a deliberate and premeditated murder by giving CALJIC No. 8.20"].) Accordingly, the prosecutor did not misstate the law.
CALCRIM No. 521 provides:
"The defendant is guilty of first degree murder if the People have proved that [he] acted willfully, deliberately, and with premeditation. The defendant acted willfully if [he] intended to kill. The defendant acted deliberately if [he] carefully weighed the considerations for and against [his] choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if [he] decided to kill before completing the acts that caused death.
"The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time.[¶] . . . [¶]
"The requirements for second degree murder based on express or implied malice are explained in CALCRIM No. 520, First or Second Degree Murder With Malice Aforethought.
"The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder and the murder is second degree murder." (Italics added.)
CALJIC No. 8.20 states in relevant part: "All murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree. [¶] The word 'willful,' as used in this instruction, means intentional. [¶] The word 'deliberate' means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. The word 'premeditated' means considered beforehand."
Gomez also points to another portion of the prosecutor's argument telling jurors that that premeditation means "he decided—before he started pulling the trigger and pumping his two victims full of bullets, he decided before he's doing the act that he's intending to kill them." He claims that this argument essentially collapsed the distinction between second degree intentional murder and first degree deliberate and premeditated murder. He asserts that the jurors could have interpreted this argument to mean that deliberation and premeditation involved nothing other than having the intent to kill before pulling the trigger, and that the number of shots fired was sufficient to prove first degree. Again, we disagree.
Gomez's argument takes the prosecutor's statement out of context. Examining this statement in context shows that the prosecutor first argued that Gomez intended to kill the victims. The prosecutor explained that the key difference between second degree and first degree murder is that first degree requires willful, deliberate, premeditated conduct. He then stated that if there is "no premeditation, willfulness, or deliberation, you're still at second degree murder because you have an intent to kill another human being." Thus, viewed in context the prosecutor simply urged the jury to find that Gomez committed first degree murder because Gomez acted with the intent to kill, deliberately, and with premeditation.
Because the prosecutor's comments were not improper, defense counsel's failure to object is not ineffective assistance of counsel.
In any event, to establish prosecutorial misconduct based on misstatements of law, a defendant "must show that, '[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.' " (Centeno, supra, 60 Cal.4th at p. 667.) Here, even assuming the comment improperly eliminated the distinction between second and first degree murder, CALCRIM No. 520 instructed the jury on deciding whether Gomez's actions constituted murder and told jurors: "If you decide that the defendant committed murder, it is murder of the second degree, unless the People have proved beyond a reasonable doubt that it is murder of the first degree as defined in CALCRIM No. 521." In turn, CALCRIM No. 521 correctly explained how to determine whether a murder was first degree and concluded by reiterating: "The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder and the murder is second degree murder." The jury was also instructed with CALCRIM No. 522 regarding provocation in deciding between first and second degree murder. On this record, we find no reasonable likelihood that the jury misunderstood the requirements to find willful, deliberate, premeditated conduct.
IV. Alleged Cumulative Error
Gomez contends the cumulative effect of the court's alleged errors deprived him of a fair trial. Here, we have found none of Gomez's claims of error meritorious or prejudicial. Thus, there was no cumulative error in this case. (People v. Famalaro (2011) 52 Cal.4th 1, 44.)
V. Pitchess Review
A. Additional Background
Before trial, Gomez sought the personnel records of a Riverside County Sheriff's sergeant regarding false statements or dishonesty. Defense counsel alleged that the sergeant reported that Josue said that his cousin had shot him, but at the preliminary hearing Josue denied this statement. Defense counsel argued that the sergeant may have misrepresented what the witness said in his report, and that the defense should thus be allowed to access impeachment evidence on the officer.
The trial court conducted an in camera review of the officer's personnel file. It set an additional hearing to determine whether anything reviewed during the in camera hearing would be provided to the defense. At that hearing, the court raised whether the statement allegedly made to the sergeant by Josue had been recorded and if so, whether it was consistent with the sergeant's report. After learning that such a recording existed, the trial court concluded that defense counsel had not provided good cause to discover the records and denied the motion. B. Analysis
Law enforcement personnel records are presumptively confidential (§ 832.7); however, under some circumstances, the privacy interests supporting confidentiality conflict with a criminal defendant's equally compelling due process interest in obtaining evidence necessary to his defense. (Fletcher v. Superior Court (2002) 100 Cal.App.4th 386, 400.) To obtain discovery of these records, a defendant must file a written motion accompanied by an affidavit showing good cause for the discovery, explaining the materiality of the requested documents and stating "upon reasonable belief" that the governmental agency actually has them. (Evid. Code, § 1043, subds. (a), (b)(3).)
"A showing of 'good cause' requires defendant to demonstrate the relevance of the requested information by providing a 'specific factual scenario' which establishes a 'plausible factual foundation' for the allegations of officer misconduct committed in connection with defendant." (California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1020.) The allegations may be based on information and belief rather than personal knowledge; however, they must be stated with adequate specificity to preclude the possibility that the defendant is merely engaging in a fishing expedition. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 85; People v. Mooc (2001) 26 Cal.4th 1216, 1226.) We review a trial court's Pitchess ruling under an abuse of discretion standard. (People v. Memro (1985) 38 Cal.3d 658, 684, overruled on other grounds in People v. Gaines (2009) 46 Cal.4th 172, 181, ft. 2.)
Here, the trial court initially found good cause to review the personnel records for impeachment material, but then reversed this ruling based on information obtained during the in camera proceeding. The People do not contest the trial court's initial good cause finding. The People argue that because the trial court reversed of its good cause finding, Gomez no longer has the right to have us review the privileged records. We disagree.
Because defense counsel does not have access to the transcripts of the in camera proceedings we conclude that it is necessary for us to review the personnel records and the transcripts of the in camera proceedings to determine whether the trial court erred in reversing its prior good cause finding.
The transcripts of the trial court's confidential in camera hearings and the confidential materials reviewed by the court have been transmitted to this court under seal. We have independently examined these materials and conclude that the trial court did not abuse its discretion in reversing its prior good cause finding. Accordingly, we conclude that the trial court properly denied Gomez's Pitchess motion because the declaration did not establish a plausible factual foundation for the allegations of police dishonesty or other misconduct. (California Highway Patrol v. Superior Court, supra, 84 Cal.App.4th at p. 1020.)
DISPOSITION
The order is modified to reduce the conviction of first degree murder to second degree murder. As modified, the order is affirmed. On remand, the court shall resentence defendant in light of the modified order. Following resentencing, the trial court is directed to prepare a minute order and an amended abstract of judgment to reflect the modification of the sentence and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
HUFFMAN, J. WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.