Opinion
E070384
03-18-2020
THE PEOPLE, Plaintiff and Respondent, v. DION MARTELL KING, Defendant and Appellant.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1605365) OPINION APPEAL from the Superior Court of Riverside County. Steven G. Counelis, Judge. Affirmed in part, remanded in part with directions. Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
John Doe C.S., Jane Doe C.S., and John Doe I.D. were standing outside of a liquor store when defendant and appellant, Dion Martell King, shot several rounds at them from the passenger seat of a nearby car. A jury convicted defendant of two counts of attempted murder (Pen. Code, §§ 664, 187, subd. (a); counts 1 & 3); two counts of assault with a deadly weapon (§ 245, subd. (a)(2); counts 5 & 7); and one count of possession of a firearm by a felon (§ 29800, subd. (a)(1); count 4).
Unless otherwise noted, all further statutory references are to the Penal Code.
Defendant contends on appeal that (1) the trial court impermissibly admitted irrelevant gang evidence, (2) there was insufficient evidence to support his convictions for attempted murder because there was insufficient evidence that he intended to kill the victims, (3) the trial court improperly instructed the jury on the "kill zone" theory of liability for attempted murder, (4) the prosecutor committed misconduct by relying on an improper "kill zone" theory, (5) defense counsel was ineffective, (6) the case should be remanded for resentencing under the newly enacted Senate Bill No. 1393 (2017-2018 Reg. Sess.), (7) the abstract of judgment should be modified to reflect the correct sentence on count 4, and (8) the four one-year enhancements for his prior prison terms should be stricken under newly enacted Senate Bill No. 136 (2019-2020 Reg. Sess.). The People concede defendant's last three contentions, but dispute the remaining issues.
We agree with defendant that the trial court erroneously instructed the jury on the kill zone theory and that the prosecutor improperly argued the theory applied, but conclude any resulting error was harmless. We agree with the parties as to defendant's sixth through eighth contentions, but reject his remaining arguments. Accordingly, we affirm in part and remand with directions in part.
II.
FACTUAL AND PROCEDURAL HISTORY
John Doe C.S., Jane Doe, and John Doe I.D., who are Hispanic, were socializing by themselves behind a liquor store when they heard gunshots. Jane Doe got down onto the ground and saw flashes from a gun fired from the passenger side of a PT Cruiser. She heard four or five shots and the sound of bullets hitting the metal poles and trash cans surrounding the group. The PT Cruiser then drove away. No one was injured by a bullet.
A nearby Riverside police officer heard the gunshots, called for back-up, and went to investigate. Upon his arrival, two individuals pointed at a PT Cruiser and yelled, "'That's them!'" The PT Cruiser sped away and the officer began to chase it. The PT Cruiser exceeded 50 mph in 25 mph zones and did not stop at stop signs. The responding officer and other back-up units pursued the PT Cruiser, which eventually stopped. Defendant exited from the passenger side and codefendant Tyrone Norris exited from the driver's side.
When searching the car, the officers recovered five Smith & Wesson .38-caliber rounds and unspent shotgun rounds, but did not find a gun. After reviewing dashcam footage, the officers noticed that defendant had thrown something from the car during the chase that sparked as it hit the sidewalk. The officers went to the location where the object was thrown and recovered a Smith & Wesson .38-caliber revolver with spent shell casings.
Video surveillance footage from the liquor store showed that the PT Cruiser was in the parking lot for about three minutes while Norris bought beer. The car left, but immediately turned around, went back into the parking lot, and defendant fired shots from about 14 to 22 feet away.
The record contains conflicting evidence about exactly how far away from the victims defendant was when he fired the shots. It is undisputed, however, that he shot at them from a "close range" in a "tight space."
When interviewed by the officers about the incident, defendant's story changed several times. He first denied firing any shots. Later, he admitted firing the shots, but claimed he did so in self-defense because Hispanic gang members shot at him first. He then claimed the individuals standing outside of the liquor store called him racial slurs and were members of the Eastside Riva, a Hispanic gang that he claimed targeted African-American gang members and had harassed him before. Defendant eventually admitted that he was the only one who had fired shots. Defendant claimed he did so because he believed he was shooting at Eastside Riva gang members who were going to shoot first.
At trial, defendant provided another explanation for why he shot at the victims. According to defendant, on the day of the shooting, he had been confronted by Hispanic gang members who made him feel uncomfortable. After Norris returned to the car from buying beer, he told defendant that Hispanics had said racial slurs and other derogatory remarks to him inside the store. To support Norris and to retaliate for the harassment he suffered earlier in the day, defendant shot into the air to scare the victims.
Defendant was charged with three counts of attempted murder (§§ 664, 187, subd. (a); counts 1, 2 & 3), possession of a firearm by a felon (§ 29800, subd. (a)(1); count 4), and three counts of assault with a firearm (§ 245, subd. (a)(2); counts 5, 6 & 7). As for counts 1 through 3, the People also alleged defendant intentionally discharged a firearm (§§ 12022.53, subd. (c), 1192.7, subd. (c)(8)). As to counts 5 through 7, the People alleged defendant personally used a firearm (§ 12022.5, subd. (a)). The People also alleged defendant had one prior strike conviction (§§ 667, subds. (c), (e), 1170.12, subd. (c)(1)), one serious felony prior conviction (§ 667, subd. (a)), and four prior prison terms (§ 667.5, subd. (b)).
A jury convicted defendant of counts 1, 3, 4, 5, and 7, but found him not guilty of counts 2 and 6, which were related to John Doe C.S. The jury also found true the enhancement allegations relating to the guilty counts. Defendant was sentenced to 14 years to life plus 25 years in prison. The trial court, however, "permanently stayed" the one-year prison terms imposed for each of defendant's four prison priors under section 1385.
The People concede that the evidence was inconclusive "in relation to where . . . John Doe C.S. stood."
Defendant timely appealed.
III.
DISCUSSION
A. Gang Evidence
Defendant claims the trial court erroneously admitting evidence about his gang affiliations and his knowledge about Riverside gangs. We conclude the trial court did not err by admitting the evidence and, even if it did, any resulting error was harmless.
1. Additional Background
Before trial, the People moved to admit the entirety of defendant's interview with the police about the incident. Defendant objected to the admission of some portions of the interview transcript as unduly prejudicial under Evidence Code section 352. Defense counsel highlighted the objected-to portions, which consisted of "a sentence here, [a] couple words there" on five pages of the transcript. The statements defense counsel moved to exclude related to (1) defendant's interaction with Hispanic males on the day of the shooting who threw gang signs at defendant and claimed Eastside Riva, (2) defendant's references to certain gangs, (3) defendant's statements reflecting his knowledge of Riverside gangs, and (4) defendant's reference to previously being a member of a Los Angeles-based gang.
Although the transcript of defendant's police interview is in the record, the highlighted version of the transcript is not.
The trial court agreed with the People that the statements were relevant to establish defendant's motive. In the trial court's view, defendant's statements explained that he shot at the victims because they were Hispanic and he believed they were members of the Eastside Riva gang. The trial court therefore found defendant's statements were relevant "to the existence or absence of [defendant's] motive" and not unduly prejudicial, and admitted the entire transcript of his interview.
2. Applicable Law and Standard of Review
"[A]s [a] general rule, evidence of gang membership and activity is admissible if it is logically relevant to some material issue in the case, other than character evidence, is not more prejudicial than probative and is not cumulative. [Citation.] Consequently, gang evidence may be relevant to establish the defendant's motive, intent or some fact concerning the charged offenses other than criminal propensity as long as the probative value of the evidence outweighs its prejudicial effect. [Citations.] 'Evidence of the defendant's gang affiliation—including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove . . . motive . . . or other issues pertinent to guilt of the charged crime. [Citations.]' [Citation.]" (People v. Albarran (2007) 149 Cal.App.4th 214, 223-224.)
However, "admission of evidence of a criminal defendant's gang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged. [Citations.] . . . [B]ecause it may have a highly inflammatory impact on the jury trial courts should carefully scrutinize such evidence before admitting it." (People v. Williams (1997) 16 Cal.4th 153, 193.) Nonetheless, "[t]he erroneous admission of gang or other evidence requires reversal only if it is reasonably probable that appellant would have obtained a more favorable result had the evidence been excluded." (People v. Avitia (2005) 127 Cal.App.4th 185, 194.)
"[T]he decision on whether evidence, including gang evidence, is relevant, not unduly prejudicial and thus admissible, rests within the discretion of the trial court. [Citation.] 'Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion "must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]" [Citation.]'. . . It is appellant's burden on appeal to establish an abuse of discretion and prejudice." (People v. Albarran, supra, 149 Cal.App.4th at pp. 224-225.)
3. Analysis
Defendant argues the trial court abused its discretion by admitting his statements concerning his involvement with and knowledge of various gangs because they were unduly prejudicial. In defendant's view, his statements should not have been admitted because they were "not relevant to any material issue." We disagree.
The trial court admitted defendant's statements because they tended to prove that he had a motive for the shootings—to retaliate against a Hispanic gang, the Eastside Riva, who had harassed him on several previous occasions. Defendant admitted that he shot at the victims because they were Hispanic and he thought they may have been Eastside Riva members. "Gang evidence is relevant and admissible when the very reason for the underlying crime, that is the motive, is gang related." (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167-1168.) "'[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence.' [Citations.]" (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.) We conclude the trial court did not abuse its discretion in admitting the evidence because defendant's statements were directly related to his motive for shooting at the victims. (See People v. Gonzalez (2012) 210 Cal.App.4th 724 [gang evidence was not unduly prejudicial because it was probative of the defendant's motive for shooting rival gang member].)
Even if the trial court erred in admitting defendant's statements, we conclude any resulting error was harmless. (People v. Davis (1996) 42 Cal.App.4th 806, 813.) The evidence of defendant's guilt was substantial. Immediately after the shooting, the victims identified the PT Cruiser Norris was driving, at the scene of the crime, as the vehicle from which the shots came from. After the officers pursued and stopped the vehicle, defendant was found in its passenger side with ammunition that matched a gun thrown from the vehicle during the officers' pursuit. Before and during trial, defendant admitted to shooting at the victims because he thought they were Eastside Riva gang members. In light of the overwhelming evidence of defendant's guilt, we conclude any error caused by the admission of the transcript of defendant's statements to the police was harmless because it is not reasonably probable that defendant would have obtained a more favorable result had his statements been excluded. (People v. Avitia, supra, 127 Cal.App.4th at p. 194.)
Defendant asserts the federal standard of prejudice articulated in Chapman v. California (1967) 386 U.S. 18, applies here, whereas the People argue the California standard articulated in People v. Watson (1956) 46 Cal.2d 818 applies. We conclude the People are correct. (See People v. Avitia, supra, 127 Cal.App.4th at p. 194 ["The erroneous admission of gang or other evidence requires reversal only if it is reasonably probable that appellant would have obtained a more favorable result had the evidence been excluded."].)
B. There Was Substantial Evidence Defendant Acted With the Intent to Kill
Defendant contends his convictions for attempted murder must be reversed because there was insufficient evidence to establish that he acted with an intent to kill. We disagree.
To determine whether there is sufficient evidence to uphold a conviction, we review the entire record to determine whether it discloses reasonable and credible evidence to allow a rational trier of fact to determine guilt beyond a reasonable doubt. (People v. Smith (2005) 37 Cal.4th 733, 738-739.) The conviction must be based on substantial evidence—evidence that is reasonable, credible, and of solid value. (People v. Cravens (2012) 53 Cal.4th 500, 508.)
The elements of attempted murder are "specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the attempted killing." (People v. Lee (2003) 31 Cal.4th 613, 623.) Intent usually must be inferred from the circumstances of the attempt. (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.) Although proof of a motive to kill is not required to establish intent to kill, it is often probative of intent. (People v. Smith, supra, 37 Cal.4th at p. 741.) Further, an inference of an intent to kill arises when the defendant purposefully uses a lethal weapon with lethal force against a victim. (Id. at p. 742.)
Here, substantial evidence supports the jury's finding that defendant acted with the intent to kill. "'The act of firing toward a victim at a close, but not point blank, range "in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill . . . ."'" (People v. Smith, supra, 37 Cal.4th at p. 741; accord, People v. Lee (1987) 43 Cal.3d 666, 667-679.) As outlined above, defendant had a motive to shoot at the victims, who he mistakenly believed were affiliated with the Eastside Riva gang. Defendant admitted that he shot at the victims, and it is undisputed that he rapidly shot four to five rounds from a close range. This was more than enough for the jury to find that defendant acted with the requisite intent to kill. (See People v. Lashley (1991) 1 Cal.App.4th 938, 945 ["The very act of firing a .22-caliber rifle toward the victim at a range and in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill under the circumstances presented here."]; People v. Vang (2001) 87 Cal.App.4th 554, 563-564 ["The jury drew a reasonable inference, in light of the placement of the shots, the number of shots, and the use of high-powered, wall-piercing weapons, that defendants harbored a specific intent to kill every living being within the residences they shot up."].) We therefore reject defendant's contention that there was insufficient evidence for the jury to convict him of attempted murder.
C. Kill Zone Jury Instruction
Defendant contends his convictions for attempted murder must be reversed because the jury was erroneously instructed on the kill zone theory of attempted murder. We agree the trial court improperly instructed the jury on the kill zone theory, which was inapplicable, but conclude the error was harmless.
We agree with the People that defendant forfeited this claim by failing to assert it in the trial court and failing to object to the kill zone instruction. (People v. Windfield (2019) 43 Cal.App.5th 809, 832 [defendant forfeited challenge to kill zone instruction by failing to object to it in trial court].) We nonetheless address the issue on the merits "to avert any claim of inadequate assistance of counsel." (People v. Yarbrough (2008) 169 Cal.App.4th 303, 310.)
We review a claim of instruction error under the de novo standard of review. (People v. Guiuan (1998) 18 Cal.4th 558, 569-570.) Under the kill zone theory of liability for attempted murder, "a defendant who intends to kill A and, in order to ensure A's death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire or an explosive device devastating enough to kill everyone in the group[,] [t]he defendant has intentionally created a "kill zone" to ensure the death of his primary victim . . . ." (People v. Bland (2002) 28 Cal.4th 313, 330.) The theory "simply recognizes that a shooter may be convicted of multiple counts of attempted murder on a 'kill zone' theory where the evidence establishes that the shooter used lethal force designed and intended to kill everyone in an area around the targeted victim (i.e., the 'kill zone') as the means of accomplishing the killing of that victim." (People v. Smith, supra, 37 Cal.4th at pp. 745-746.)
The kill zone theory thus applies "only when a jury concludes: (1) the circumstances of the defendant's attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm—that is, an area in which the defendant intended to kill everyone present to ensure the primary target's death—around the primary target[;] and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm." (People v. Canizales (2019) 7 Cal.5th 591, 607 (Canizales).)
While this appeal was pending, the California Supreme Court issued Canizales, which resolved "the conflict in the Courts of Appeal regarding the evidentiary basis for applying, and instructing on, the kill zone theory for establishing the intent to kill element of attempted murder." (Canizales, supra, 7 Cal.5th at p. 602.) Neither party requested the opportunity to submit supplemental briefs on Canizales.
"In determining the defendant's intent to create a zone of fatal harm and the scope of any such zone, the jury should consider the circumstances of the offense, such as the type of weapon used, the number of shots fired (where a firearm is used), the distance between the defendant and the alleged victims, and the proximity of the alleged victims to the primary target. Evidence that a defendant who intends to kill a primary target acted with only conscious disregard of the risk of serious injury or death for those around a primary target does not satisfy the kill zone theory. . . . [T]he kill zone theory does not apply where 'the defendant merely subjected persons near the primary target to lethal risk. Rather, in a kill zone case, the defendant has a primary target and reasons [that] he cannot miss that intended target if he kills everyone in the area in which the target is located. In the absence of such evidence, the kill zone instruction should not be given.'" (Canizales, supra, 7 Cal.5th at p. 607, fn. omitted.)
Here, the trial court's kill zone instruction was not proper under Canizales. "[I]n a kill zone case, the defendant has a primary target and reasons [that] he cannot miss that intended target if he kills everyone in the area in which the target is located. In the absence of such evidence, the kill zone instruction should not be given." (Canizales, supra, 7 Cal.5th at p. 607, quoting People v. Medina (2019) 33 Cal.App.5th 146, 156, italics added.) There was no evidence that defendant had a primary target. Instead, defendant indiscriminately shot at Jane Doe, John Doe C.S., and John Doe I.D., none of whom were defendant's primary target. In the absence of any evidence of a concurrent intent to kill everyone in the kill zone in order to kill a primary target, a kill zone instruction is improper. Because there was no such evidence here, the trial court erred in giving a kill zone instruction. (See People v. Medina, supra, 33 Cal.App.5th at p. 155 ["[A] kill zone instruction is not appropriate where a defendant fires a deadly weapon into a group of individuals with the intent to kill but without a primary target. Nor, in the absence of a primary target, is a kill zone instruction appropriate even if the defendant intends to kill everyone in that group."]; People v. McCloud (2012) 211 Cal.App.4th 788, 798 ["[T]he kill zone theory applies only if the evidence shows that the defendant tried to kill the targeted individual by killing everyone in the area in which the targeted individual was located"].)
Nonetheless, we conclude the error was harmless beyond a reasonable doubt. (People v. Aledamat (2019) 8 Cal.5th 1, 12; Canizales, supra, 7 Cal.5th at p. 617.) In evaluating what the jury likely would have done without a kill zone instruction, we "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." (People v. Breverman (1998) 19 Cal.4th 142, 177.)
To convict defendant of attempted murder of Jane Doe and John Doe C.S., the People had to prove that he took at least one direct but ineffective step toward killing them and intended to do so. (CALCRIM No. 600.) By shooting four to five times at Jane Doe and John Doe C.S. from a close distance in a confined area, defendant took a directed but ineffective step toward killing them. The uncontroverted evidence showed that defendant intentionally shot at Jane Doe and John Doe C.S. in an effort to retaliate against the Eastside Riva. The jury could have reasonably concluded that he did so with the requisite intent given his admissions before and at trial that he shot at the victims because he mistakenly believed they were affiliated with the Eastside Riva. (See People v. Smith, supra, 37 Cal.4th at p. 743 ["evidence that defendant purposefully discharged a lethal firearm at the victims, both of whom were seated in the vehicle, one behind the other, with each directly in his line of fire, can support an inference that he acted with intent to kill both"].)
Further, the trial court instructed the jury on attempted murder, including the elements that defendant took a direct step toward killing another person and intended to kill that person. The court also instructed the jury that convicting defendant of attempted murder required finding that he intended to kill Jane Doe, John Doe C.S., and/or John Doe I.D. Consistent with this instruction, the People repeatedly emphasized in closing that defendant intended to kill all three of them.
The jury specifically found true the allegations that defendant acted willfully, deliberately, and with premeditation in attempting to murder Jane Doe and John Doe C.S. To make that finding, the jury had to find that defendant "intended to kill when he acted," "carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill," and "decided to kill before completing the act[] of attempted murder."
Given the lethal capability of the weapon defendant used, the amount of shots fired, the distance between defendant and the victims, the victims' vulnerability, the People's unambiguous, repeated argument that defendant specifically intended to kill all three victims, and the jury's findings, the evidence of defendant's guilt for attempted murder "was overwhelming under the 'kill zone' theory or otherwise." (People v. Campos (2007) 156 Cal.App.4th 1228, 1244.) The error in giving the kill zone instruction was harmless "because any reasonable jury would have convicted on the charge of attempted murder . . . without reliance on a kill zone theory." (People v. Falaniko (2016) 1 Cal.App.5th 1234, 1245; see also Canizales, supra, 7 Cal.5th at p. 604 ["[A] defendant who fires into a group of people intending to kill one of them, but not knowing or caring which one he or she kills, can be convicted of an attempted murder because there is no requirement that a defendant intend to kill a specific target, so long as he or she intended to kill someone."].) We therefore conclude the trial court's erroneous kill zone instruction was harmless beyond a reasonable doubt. (People v. Aledamat, supra, 8 Cal.5th at p. 12; Canizales, supra, at p. 617.)
D. Prosecutor Misconduct
Defendant contends the prosecutor committed misconduct by relying on "a legally erroneous kill zone theory of attempted murder during his closing argument." The People argue defendant forfeited the argument by failing to make it in the trial court and, in any event, it fails on the merits.
When the defendant alleges prosecutorial misconduct based on the prosecutor's closing argument, the defendant must show that in the context of the whole argument and the instructions given, there was a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. (People v. Centeno (2014) 60 Cal.4th 659, 667.) "If the challenged comments, viewed in context, 'would have been taken by a juror to state or imply nothing harmful, [then] they obviously cannot be deemed objectionable.' [Citation.]" (People v. Cortez (2016) 63 Cal.4th 101, 130.)
"'"'"A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.'"' [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves '"'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.'"' [Citation.]" [Citation.]'" (People v. Zambrano (2004) 124 Cal.App.4th 228, 241.)
"'"A prosecutor's misconduct violates the Fourteenth Amendment to the United States Constitution when it 'infects the trial with such unfairness as to make the conviction a denial of due process.'"'" (People v. Tully (2012) 54 Cal.4th 952, 1009.) A prosecutor's misconduct violates California law if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (Id. at pp. 1009-1010.) An objection must be raised and an admonition sought for the issue to be preserved on appeal. (Id. at p. 1010.)
"Error with respect to prosecutorial misconduct is evaluated under Chapman v. California[,] [supra,] 386 U.S. 18, to the extent federal constitutional rights are implicated, and People v. Watson[,] [supra,] 46 Cal.2d 818 if only state law issues were involved. [Citation.] Chapman is implicated if the prosecutor's conduct renders the trial so fundamentally unfair that due process is violated. [Citations.] Watson applies where the prosecutor uses '"'deceptive or reprehensible methods to attempt to persuade either the court or the jury.'"' [Citation.]" (People v. Fernandez (2013) 216 Cal.App.4th 540, 564.) "Misconduct that does not constitute a federal constitutional violation warrants reversal only if it is reasonably probable the trial outcome was affected." (People v. Shazier (2014) 60 Cal.4th 109, 127.)
We review de novo a defendant's claim of prosecutorial misconduct. (People v. Uribe (2011) 199 Cal.App.4th 836, 860.) "'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. Brown (2003) 31 Cal.4th 518, 553-554.) We consider the prosecutor's remarks in context of the entire record. (People v. San Nicolas (2004) 34 Cal.4th 614, 665-666.) We presume, in the absence of evidence to the contrary, that the jury understands and follows instructions from the trial court. (People v. Fauber (1992) 2 Cal.4th 792, 823.) We presume that jurors treat the court's instructions as statements of law, and the arguments of the prosecutor as words spoken by an advocate in an attempt to persuade. (People v. Thornton (2007) 41 Cal.4th 391, 441.)
As a general rule, a defendant may not complain on appeal of prosecutorial misconduct unless a timely objection was made, and the defendant asked the court to admonish the jury to disregard the perceived impropriety. (People v. Centeno, supra, 60 Cal.4th at p. 674.) In limited circumstances, "[t]he defendant's failure to object will be excused if an objection would have been futile or if an admonition would not have cured the harm caused by the misconduct." (Ibid.) Because "[a] prosecutor's misstatements of law are generally curable by an admonition from the court," the issue is deemed forfeited unless a timely objection was made in the trial court. (Ibid.)
Defense counsel made no objection to the prosecutor's closing argument and no objection upon learning about the jury note. Therefore, we find the issue forfeited. (People v. Centeno, supra, 60 Cal.4th at p. 674.) But, as outlined below, defendant asserts his trial counsel was ineffective for failing to object to the prosecutor's alleged misconduct, so we exercise our discretion to address the issue on the merits. (People v. Yarbrough, supra, 169 Cal.App.4th at p. 310 ["We also confront the issue to avert any claim of inadequate assistance of counsel."].)
Although the prosecutor's argument was impermissible because the kill zone theory did not apply, we conclude the error was harmless beyond a reasonable doubt for the same reasons the kill zone jury instruction was harmless. Because the evidence of defendant's guilt was overwhelming, we conclude beyond a reasonable doubt that defendant would not have received a more favorable outcome had the prosecutor not made a kill zone argument in closing.
E. Ineffective Assistance of Counsel
Defendant argues his trial counsel was ineffective for three reasons: (1) counsel did not request that the trial court instruct the jury with a limiting instruction, such as CALCRIM No. 1403, so the jury would not use the gang evidence for an improper purpose; (2) counsel did not object to the trial court's instructing the jury on the kill zone theory; and (3) counsel did not object to the prosecutor's improper closing argument related to the kill zone theory. We conclude defense counsel was not ineffective.
To prevail on an ineffective assistance of counsel (IAC) claim, the defendant must show that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694; accord, People v. Johnson (2015) 60 Cal.4th 966, 979-980; see also People v. Mbaabu (2013) 213 Cal.App.4th 1139, 1148.) A "'"reasonable probability"'" is a probability sufficient to undermine confidence in the outcome of the proceeding. (People v. Mbaabu, supra, at p. 1149, citing Strickland v. Washington, supra, at p. 697.) The defendant bears the burden of demonstrating by a preponderance of the evidence that defense counsel's performance was deficient and it resulted in prejudice. (People v. Centeno (2014) 60 Cal.4th 659, 674.) If we can determine an IAC claim on the ground of lack of prejudice, we need not decide whether defense counsel's performance was deficient. (People v. Mbaabu, supra, at p. 1149, citing Strickland v. Washington, supra, at p. 697.)
"[R]arely will an appellate record establish [IAC]." (People v. Thompson (2010) 49 Cal.4th 79, 122.) If the record sheds no light on counsel's actions, the claim must be rejected unless no satisfactory explanation exists or counsel was asked for an explanation and failed to provide one. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) We will not find IAC "unless there could be no conceivable reason for counsel's acts or omissions." (People v. Weaver (2001) 26 Cal.4th 876, 926.)
For the reasons outlined above, we conclude the trial court's kill zone instruction and the prosecutor's argument on the kill zone theory, though improper, were harmless. Even if defense counsel objected to both, the trial court omitted the instruction, and the prosecutor did not mention the theory, it is not reasonably probable that defendant would have received a more favorable outcome given the overwhelming evidence of his guilt.
As for not requesting a limiting instruction, defense counsel may have had a legitimate tactical reason to do so. Defense counsel "may well not have desired the court to emphasize the [gang-related] evidence." (People v. Freeman (1994) 8 Cal.4th 450, 495.) Defense counsel may have reasonably concluded that asking for a limiting instruction on the gang-related evidence would have drawn more attention on it, which could have been harmful to defendant's overall defense. (People v. Ferraez (2003) 112 Cal.App.4th 925, 934 ["[T]he decision not to request [a limiting instruction] was a reasonable tactical choice by defense counsel to avoid directing the jury to focus on the evidence that proved the gang-related charges."].) Defense counsel therefore could have reasonably "deemed it unwise to call further attention" to the gang-related evidence by asking for a limiting instruction. (People v. Hinton (2006) 37 Cal.4th 839, 878.) Accordingly, we conclude defense counsel was not ineffective for failing to request a limiting instruction. Even if defense counsel was ineffective, defendant cannot show prejudice because, as previously discussed, the evidence of defendant's guilty was overwhelming. We therefore conclude defendant's IAC claim fails.
F. Senate Bill No. 1393
At the time defendant was sentenced, the trial court had no discretion to strike the five-year serious felony enhancement imposed under section 667, subdivision (a)(1). While defendant's case has been pending review, on January 1, 2019, Senate Bill No. 1393 became effective. (Stats. 2018, ch. 1013, §§ 1-2.) Senate Bill No. 1393 amends sections 667, subdivision (a)(1) and 1385. Under the new law, for sentencing purposes, trial courts have discretion to strike or dismiss alleged section 667, subdivision (a) prior serious felony convictions, in the interests of justice.
Defendant contends his case should be remanded for resentencing because Senate Bill No. 1393 applies retroactively. The People concede that a remand is required since the new laws could reduce defendant's punishment and the record shows a remand would not be futile. We conclude that a remand for resentencing in this case is appropriate.
In enacting Senate Bill No. 1393, the Legislature did not expressly declare that Senate Bill No. 1393, or the amendments it makes to sections 667, subdivision (a) and 1385, subdivision (b), apply retroactively to judgments not final on January 1, 2019, when the amendments to sections 667 and 1385 went into effect. However, the Legislature may enact laws that apply retroactively, either explicitly or by implication. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 311-312.) Under the new laws, the trial court has discretion to either impose the same penalty as under the former law or impose a lesser penalty. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308.)
"When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply" (In re Estrada (1965) 63 Cal.2d 740, 745; People v. Francis (1969) 71 Cal.2d 66, 75-76; accord, People v. Superior Court (Lara), supra, 4 Cal.5th at p. 307.)
In People v. Francis, supra, 71 Cal.2d 66, the Supreme Court found an inference that the Legislature intended retroactive application "because the Legislature ha[d] determined that the former penalty provisions may have been too severe in some cases and that the sentencing judge should be given wider latitude in tailoring the sentence to fit the particular circumstances." (Id. at p. 76.) Thus, absence of an express statement to the contrary by the Legislature, as applied in Lara and Francis, it is also appropriate to infer that the Legislature intended Senate Bill No. 1393 to retroactively apply to all nonfinal cases to which it could constitutionally be applied. We therefore conclude the Legislature intended retroactive application of Senate Bill No. 1393 to all judgments not yet final. (People v. Garcia (2018) 28 Cal.App.5th 961, 973.)
Section 1385, subdivision (b)(1) permits a court, if it has the authority, to strike or dismiss the punishment for that enhancement in the furtherance of justice. When a trial court exercises its authority in furtherance of justice, it does not wipe out the prior conviction or prevent it from being considered in connection with later convictions. Instead, it simply embodies the court's determination that, in the interest of justice, the defendant should not be required to undergo the statutorily increased penalty. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 508.) A remand is appropriate where the record indicates that the trial court may exercise its discretion to strike or dismiss the enhancement under section 1385, if permitted to do so. (People v. McDaniels (2018) 22 Cal.App.5th 420, 424.) Defendant was sentenced to 39 years to life. The trial court added a then-mandatory five-year enhancement for defendant's prior serious felony.
We agree with the parties that the record does not demonstrate a remand would be futile. We therefore remand this case to the trial court to consider whether to exercise its new discretionary authority to strike defendant's serious felony prior conviction for purposes of sentence enhancement.
G. Abstract of Judgment Correction
The parties agree that the abstract of judgment and sentencing hearing minute order contain an error that must be corrected. The trial court ordered defendant's sentences on counts 1 and 4 to run concurrently, but the abstract of judgment and sentencing hearing minute order incorrectly stated that defendant's sentence on count 4 was stayed.
At defendant's unopposed request, we direct the trial court on remand to correct the sentencing minute order and to prepare an amended abstract of judgment to reflect that defendant's sentences on counts 1 and 4 shall run concurrently. (People v. Jones (2012) 54 Cal.4th 1, 89 [appellate court may correct clerical errors on appeal].)
H. Senate Bill No. 136
After this case was fully briefed, the parties filed supplemental briefs on the applicability of recently enacted Senate Bill No. 136. Senate Bill No. 136 amended section 667.5, subdivision (b), which now limits one-year prior prison term enhancements to convictions for certain sexually violent offenses. (See People v. Lopez (2019) 42 Cal.App.5th 337, 341.) Senate Bill No. 136 became effective on January 1, 2020. (People v. Jennings (2019) 42 Cal.App.5th 664, 680.)
Defendant thus contends—and the People agree—that his four one-year terms for his prison priors should be stricken under Senate Bill No. 136. We agree with the parties.
The trial court imposed four one-year enhancements for defendant's four prior prison terms. However, none of defendant's prior prison terms were for sexually violent offenses. Accordingly, defendant is entitled to have his four one-year enhancements for his prison priors stricken under Senate Bill No. 136 so long as it applies retroactively.
We agree with the parties that Senate Bill No. 136 applies retroactively to defendant's case. Under In re Estrada, supra, 63 Cal.2d 740, unless the Legislature provides otherwise, ameliorative legislation applies retroactively to all nonfinal judgments that are not final when the legislation goes into effect. Defendant's judgment will not be final on January 1, 2020, when Senate Bill No. 136 went into effect. (See People v. Vieira (2005) 35 Cal.4th 264, 306.) Defendant is therefore entitled to relief under Senate Bill No. 136. (See People v. Jennings, supra, 42 Cal.App.5th at p. 680 [holding Senate Bill No. 136 applies retroactively].)
Because the trial court "permanently stayed" the one-year prison terms for defendant's four prison priors, the People concede defendant's "sentence will be unchanged by striking a stayed penalty" because "there is no additional time that the court could otherwise impose." The People also concede the trial court erroneously stayed the prior prison terms under section 1385, which allows the trial court either to strike or dismiss enhancements. The People therefore agree with defendant that his four one-year prison prior enhancements "should simply be stricken." We agree with the parties and strike the enhancements. (See People v. Jordan (2003) 108 Cal.App.4th 349, 368 ["Prior prison term enhancements may be imposed or stricken but not stayed."].)
IV.
DISPOSITION
The four one-year enhancements for defendant's prior prison terms are stricken. The case is remanded for the purpose of allowing the trial court to consider whether to dismiss or strike the section 667, subdivision (a) serious felony enhancement. If the court so exercises its discretion, it shall resentence defendant accordingly. Irrespective of resentencing defendant, the trial court also is directed to correct the sentencing minute order and prepare an amended abstract of judgment to reflect that defendant's sentences on counts 1 and 4 shall run concurrently and that defendant's four one-year enhancements for his prior prison terms are stricken. After the trial court decides whether to resentence defendant and corrects the sentencing minute order and prepares an amended abstract of judgment, the clerk of the superior court is directed to issue the amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
In a footnote, defendant requests that this court strike as superfluous the not true findings on the firearm enhancements on counts 2 and 6 because the jury was instructed to return findings on only the guilty counts. We decline to do so, and express no opinion on whether the trial court should do so on remand.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: SLOUGH
J. RAPHAEL
J.