Opinion
G056352
10-17-2019
THE PEOPLE, Plaintiff and Respondent, v. ADRIAN DE LA RIVA, Defendant and Appellant.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Arlene A. Sevidal and Andrew Mestman, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16WF0462) OPINION Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. Affirmed in part, reversed in part and remanded with directions for resentencing. Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted defendant Adrian De La Riva of one count of first degree, special circumstance gang related murder (Pen. Code, §§ 187, subd. (a); 190.2, subd. (a)(22); count 1) and one count of first degree deliberate and premeditated attempted murder inflicting great bodily injury (§§ 664, subd.(a), 187, subd. (a), 12022.53, subd. (d), (e)(1); count 2). The jury also found true allegations that both counts were committed for the benefit of a criminal street gang and that defendant vicariously discharged a firearm causing great bodily injury, and that the shooting was committed for the benefit of a criminal street gang. (§§ 186.22, subd. (b)(4), 12022.53, subd. (d), (e)(1).)
All further statutory references are to the Penal Code.
In a bifurcated proceeding, the court found true allegations that defendant had suffered two or more prior strike convictions (§§ 667, subds. (b)-(j), 1170.12), two prior serious felony convictions (§ 667, subd. (a)), and had served two prior prison terms. (§ 667.5, subd. (b)).
The court sentenced defendant to life without possibility of parole plus 102 years to life in state prison as follows: (1) life without possibility of parole on count 1, plus 25 years to life for the firearm enhancement, plus two consecutive five-year enhancements for two prior serious felony convictions; and (2) seven years to life on count 2, plus 25 years to life for the firearm enhancement, plus two consecutive five-year enhancements for two prior serious felony convictions, plus 25 years to life pursuant to the Three Strikes Law.
Defendant raises several issues on appeal. First, he contends the court committed instructional error by instructing the jury on aiding and abetting liability, failing to instruct the jury on how to determine whether defendant, as an aider and abettor, could be guilty of first degree murder or first degree attempted murder, and failing to define the crimes that were his criminal street gang's "primary activities." Second, he claims the court made impermissible statements about the "per diem cost" of the trial, which warrant reversal. Third, he argues the court erred by denying his new trial motions without appointing conflict-free counsel to investigate and present a supplemental new trial motion based on ineffective assistance of counsel. Fourth, he contends the court erred by imposing a 25-year-to-life term pursuant to the Three Strikes Law on count 2. Finally, he claims the matter should be remanded to allow the court to exercise its discretion as to whether to strike the two five-year prior serious felony enhancements for each count.
While we agree with defendant's fourth contention, that the court erred in its sentencing on count 2, we conclude the sentence should have been greater. We also agree with defendant's fifth contention and remand the matter for the court to exercise its discretion to strike the five-year serious felony priors and to impose a lawful sentence on count 2. In all other respects, we reject defendant's contentions and affirm the judgment.
FACTS
The Incident
On October 2, 2015, a red Jeep Cherokee pulled up next to Leonel Gonzalez and Sean Reed who were walking on Keel Avenue in Garden Grove. The area was in territory claimed by the Hard Times criminal street gang. The passenger in the Jeep asked Gonzalez and Reed, "Where you fools from?" Gonzalez and Reed said they were not in a gang. The passenger then stated, "Fuck Tacos" and "This is fucking F-Troop." "Tacos" is a disrespectful term for the Hard Times gang. F-Troop is a criminal street gang of which defendant is a member.
The Jeep then drove off toward an apartment complex and pulled up to 16-year-old Saul Rivera and 17-year old Francisco Salgado who were standing in an area between their apartments. Someone from inside the car asked Rivera, "Where are you from?" Rivera answered, "I'm not from anywhere." Salgado then heard "loud bangs" and saw Rivera, who seemed to be in pain, running away. Salgado also ran and hid near Rivera's apartment. Rivera had been shot in the shoulder. The bullet travelled through his chest, and he died at the scene. Salgado discovered he also was shot in the left shoulder, but he survived his injuries.
Before the gunshots were fired, Reed heard someone by the apartment complex say, "Where the fuck you from?" and "This is F-Troop." Gonzalez and Reed ran toward the apartment complex after they heard three to four gunshots. When they reached the apartments, they realized Rivera and Salgado had been shot. Salgado told Gonzalez that a red Jeep pulled up to them and that it was the F-Troop gang. Gonzalez ran to Salgado's residence to notify his family about the shooting, and Reed ran home to tell his parents that Salgado was shot.
When police arrived, Salgado told them he and Rivera were standing in front of their apartment complex when a red Jeep drove up to them and someone from the car said, "Hey, do you bang?" Salgado told the police he responded, "What?" The passenger in the front seat then displayed a handgun and began shooting. Salgado said he did not know who the people were in the Jeep but told the police they were "gangsters."
The Investigation and Defendant's Arrest
Police recovered surveillance video footage from the area, which indicated the shooting had occurred at 2:11 p.m. The video also showed several stickers on the Jeep and depicted the front passenger extending his arm out of the window holding a firearm. An enlarged still photograph taken from the video depicted the passenger's right arm, which had a dark line extending from below the right elbow several inches down the side of the arm. Defendant has a tattoo near his right elbow that is a symbol commonly used by F-Troop gang members.
After Garden Grove police released a crime bulletin describing the Jeep, Santa Ana police stopped and detained defendant's Jeep 10 days later on October 12, 2015. Defendant was sitting in the front passenger seat and was the registered owner of the car. The outlines of several stickers that had been removed were visible on the car.
Defendant's cell phone was recovered from the center console of the car. Records from defendant's cell phone provider indicated the cell phone "pinged" a cell tower located less than half a mile from the scene of the shooting. This occurred at 1:52 p.m. on the day of the shooting. Three minutes after the shooting at 2:14 p.m., defendant's cell phone "pinged" near El Salvador Park, a known F-Troop gang hangout.
Police also recovered three bullet casings, four bullet fragments, and one bullet from the scene. DNA extracted from one of the bullet casings contained a mixture of DNA profiles from two individuals, a major male profile and a minor partial profile. Defendant could not be excluded from the major profile. The frequency in which this profile occurred in the general population was 1 in 70 people. The testing was unable to establish the DNA profile of the minor contributor.
Trial Testimony and Closing Arguments
At trial, Gonzalez testified he looked down and tried to not look at the passenger of the Jeep during the encounter, but he identified defendant as the passenger who he observed for a few minutes. He described defendant's appearance and noted he had a big tattoo on his neck. He could not see defendant's arms. Gonzalez also acknowledged he did not identify defendant before trial and had told police he could not identify the passenger. He further testified he looked up the suspect on the "O.C. Weekly Reports of Crime" two months before trial. Defendant's photograph was posted online and refreshed Gonzalez's recollection.
Reed also described the passenger's appearance but could not identify the passenger. Gonzalez, Reed, and Salgado all identified defendant's Jeep from a photograph, but Salgado could not remember what the people in the Jeep looked like.
In closing argument, the People primarily argued defendant was the passenger of the Jeep and direct perpetrator who personally fired the gun. After detailing the evidence supporting that theory, the People noted defendant also could be guilty as the driver who aided and abetted the crimes.
In his closing argument, defendant's counsel conceded defendant was a member of F-Troop and that his Jeep was the suspect car. But he disputed defendant was the shooter and argued the tattoo on defendant's arm did not match the passenger's tattoo depicted in the surveillance video. He suggested another member of F-Troop may have been the perpetrator and noted defendant's relatives were also F-Troop gang members. He further emphasized that gang members share cars, weapons, and ammunition.
Gang Evidence
At trial, Officer Gregory Stys testified he went to El Salvador Park, located in F-Troop gang territory, in April 2006. Defendant was at the park with a known F-Troop gang member. During a subsequent search of defendant's residence, Stys found gang-related items.
Officer Gilbert Hernandez testified he served a STEP notice to defendant in August 2007. Defendant admitted to Hernandez that he was a member of the F-Troop gang for approximately two years.
A STEP notice informs the recipient that he is associated with a gang and that the recipient may face increased penalties for his conduct if he engages in certain crimes with gang members.
Officer David Juarez testified he observed defendant spray painting a sidewalk with F-Troop gang-related graffiti in November 2010. Defendant fled but was ultimately detained.
Officer Matthew Lemmon testified he served another STEP notice to defendant in July 2014. Lemmon documented that defendant's moniker was "Shockey" and noted defendant had many F-Troop gang-related tattoos. Defendant told Lemmon he was "jumped" into the F-Troop gang when he was 12 years old.
The People's gang expert, Detective Jorge Lopez testified about F-Troop. Among other things, he explained F-Troop is a traditional Hispanic criminal street gang with more than 30 members. According to Lopez, F-Troop's rivals include the Hard Times gang. He also testified about the common signs used by F-Troop, which include "FT," "FTR," "FXT," "La Tropa," "Trooper Town," and "Troopers."
Lopez explained the gang's primary activities include robberies and felony possession of firearms. Relying on records of convictions of other gang members that the People introduced, he testified an F-Troop member had pleaded guilty to possession of a controlled substance with an enhancement for criminal street gang activity and another member had pleaded guilty to felon in possession of a firearm for the benefit of F-Troop.
Lopez further opined defendant was a member of F-Troop at the time of the shooting. Based on a hypothetical constructed from the facts of the instant case, Lopez also opined the offenses were committed for the benefit of F-Troop. He explained a gang member earns respect by killing a rival in the rival's territory and the crimes were committed to promote the gang by instilling fear and terrorizing the community.
DISCUSSION
Defendant contends the court committed several instructional errors. He also claims the court made improper statements about the cost of trial, erred by denying two of his new trial motions, and incorrectly imposed a 25 year to life term pursuant to the Three Strikes Law on count 2. Finally, he argues the court should exercise its discretion as to whether to strike the two five-year prior serious felony enhancements.
For the reasons stated below, we agree the court erred in its sentencing on count 2 but conclude the court should have imposed a greater sentence pursuant to the Three Strikes Law. We also agree the court should have an opportunity to exercise its discretion regarding the prior serious felony enhancements and remand the matter for that purpose and to correct the sentence on count 2. We disagree with defendant's remaining contentions.
The Court Did Not Err By Instructing the Jury on Aiding and Abetting Liability
Defendant claims the court erred by instructing the jury on aiding and abetting liability (CALCRIM Nos. 400 and 401) because there was no substantial evidence defendant was an aider and abettor of the shooting. Instead, defendant argues the People's evidence was limited to establishing defendant was the shooter. Defendant's logical conundrum: Either there was substantial evidence he was an aider and abettor of the shooting or there was not. If there was substantial evidence, the court's instructions were proper. If there was not substantial evidence, any error was harmless.
"We review defendant's claims of instructional error de novo." (People v. Johnson (2009) 180 Cal.App.4th 702, 707.) "Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.'" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." (People v. Burgener (1986) 41 Cal.3d 505, 538, disapproved on other grounds in People v. Reyes (1998) 19 Cal.4th 743.) Where reasonably possible, we interpret the instructions to support the judgment rather than defeat it. (Ramos, at p. 1088.) "'The test for determining whether instructions on a particular theory of guilt are appropriate is whether there is substantial evidence which would support conviction on that theory.'" (People v. Campbell (1994) 25 Cal.App.4th 402, 408.)
Here, the weight of the evidence supported the People's theory that defendant was the shooter, but substantial evidence also supported conviction on an aiding and abetting theory of liability. Surveillance video depicted what appeared to be the shooter's arm tattoo, which was on the same place as defendant's tattoo, but defendant argued he was not the shooter and his arm did not match the passenger's tattoo. If the jury believed defendant's argument, the jury could have found defendant was the driver (the only other person identified in the car) who aided and abetted the shooting. Defendant's car was used during the shooting, and the shooting occurred in an area that was claimed by defendant's rival gang. Defendant's DNA also was found on a bullet casing at the scene of the shooting, and his cell phone was in the vicinity of the crime scene. After the shooting, defendant's car was found with its stickers removed, suggesting defendant may have tried to conceal his identity. While all of this is circumstantial evidence, the evidence is sufficient to support a conviction for aiding and abetting the shooting.
But even if we assume the court erred by instructing the jury on an aiding and abetting theory of liability, the error was harmless. Giving instructions on a factually unsupported theory is not grounds for reversal "unless a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory." (People v. Guiton (1993) 4 Cal.4th 1116, 1130.) The People's primary theory of the case was that defendant personally committed the shooting as the passenger of the car. Most of the People's closing argument was devoted to this theory, and the People briefly discussed aiding and abetting liability as an alternative theory. Indeed, defendant concedes "all evidence tended to establish . . . defendant was possibly the passenger-shooter . . . ." Given the disproportionate emphasis on the direct liability theory, it is not reasonably likely the jury convicted defendant based solely on the theory that he was merely aiding and abetting the shooting. Any error in instructing on aiding and abetting accordingly is harmless and not cause for reversal.
The Court Did Not Err in its Jury Instructions on First Degree Murder and First Degree Attempted Murder
Defendant next claims the specific intent instructions under the standard aiding and abetting jury instructions were insufficient in this case where he was charged with first degree murder and first degree attempted murder. He argues the court should have supplemented the standard aiding and abetting instructions and informed the jury that defendant had to personally premeditate and deliberate the murder and attempted murder. Defendant did not challenge the relevant instructions in the trial court proceedings. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163 (Samaniego) [party forfeits challenge to instructions that correctly state the law even if the instructions are misleading in the particular case].) We nevertheless address the merits because defendant contends the alleged error affected his substantial rights. The court did not err; it provided the appropriate instructions. And even if we assume the instructions were somehow confusing, any error was harmless.
We begin with a summary of relevant legal principles. "'All persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission . . . are principals in any crime so committed.' [Citations.] Thus, a person who aids and abets a crime is guilty of that crime even if someone else committed some or all of the criminal acts. [Citation.] Because aiders and abettors may be criminally liable for acts not their own, cases have described their liability as 'vicarious.' [Citation.] This description is accurate as far as it goes. But . . . the aider and abettor's guilt for the intended crime is not entirely vicarious. Rather, that guilt is based on a combination of the direct perpetrator's acts and the aider and abettor's own acts and own mental state." (People v. McCoy (2001) 25 Cal.4th 1111, 1116-1117.) Assuming the natural and probable consequences doctrine is inapplicable, an aider and abettor can be guilty of the same crime as the perpetrator, or a greater or lesser crime than the perpetrator, depending on the respective mental states of the various principals. (Id. at pp. 1117-1118.)
Here, the court provided the following CALCRIM No. 400 instruction: "A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator." The court also provided the following CALCRIM No. 401 instruction: "To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] and [¶] 4. The defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime. [¶] Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime."
Defendant appears to take issue with the following language in CALCRIM No. 400: "A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator." Defendant claims the instructions erroneously allowed the jury to "find defendant guilty of whatever crime it determined that the shooter had committed, on the basis that defendant was present and his presence facilitated the crime or crimes, but without regard to whether it believed that defendant himself also premeditated that crime." But defendant's focus on a single sentence from CALCRIM No. 400 is much too narrow, ignoring the further instruction in CALCRIM No. 401. There simply is no requirement that the court must supplement these aiding and abetting instructions when a defendant is charged with aiding and abetting first degree murder or first degree attempted murder. Although the CALCRIM Nos. 400 and 401 instructions do not use the words "premeditation" or "deliberation," the instructions were sufficient to ensure the jury found defendant premeditated and deliberated. Indeed, the instructions required the jury to find "defendant knew . . . the perpetrator intended to commit the crime" and "defendant intended to aid and abet the perpetrator in committing the crime . . . ." (CALCRIM No. 401.)
We also note that defendant in the instant case was the only individual on trial, and the People's primary theory was that defendant was the perpetrator. The court also provided the jury with instructions pertaining to murder, which required the jury to find "the defendant" committed the crimes at issue. (See CALCRIM Nos. 520, 521A, 522, 600, 601.) Unlike the instant case, in murder cases wherein the perpetrator and the aider and abettor are tried at the same time, a careless reading of the instructions might possibly confuse the jury about the aider and abettor's mens rea compared to that of the perpetrator. But that was not the case here. When reviewing the aiding and abetting instructions in conjunction with the murder instructions, the jury could only conclude that it needed to focus on defendant's mens rea.
In his reply brief, defendant cites Samaniego, supra, 172 Cal.App.4th 1148, 1164-1165 to support his argument that a defendant's culpability as an aider and abettor must be based on his own intent. In Samaniego, the jury was instructed with a former version of CALCRIM No. 400, which stated, "'A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it.'" (Samaniego, supra, 172 Cal.App.4th at p. 1163.) The court found the instruction was misleading where three defendants were convicted of two counts of first degree murder and the evidence did not establish which defendant was the actual perpetrator. (Id. at pp. 1152-1153, 1162, 1165.) The facts of the instant case are distinguishable from Samaniego. Here, the CALCRIM No. 400 instructions did not contain the objectionable "equally guilty" language.
Finally, even if we assume the language in CALCRIM No. 400 was potentially confusing if read in isolation, any error was harmless. Under Chapman v. California (1967) 386 U.S. 18, we must determine "whether it appears 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'" (Neder v. U.S. (1999) 527 U.S. 1, 15.) Here, "[t]he jury . . . necessarily found that [defendant] acted deliberately and with premeditation." (Samaniego, supra, 172 Cal.App.4th at p. 1165.) As explained above, the jury received the CALCRIM No. 401 instructions. "It would be virtually impossible for a person to know of another's intent to murder and decide to aid in accomplishing the crime without at least a brief period of deliberation and premeditation, which is all that is required." (Id. at p. 1166.)
The Court Did Not Err in its Instructions on the Primary Activities Element of the Gang Enhancement Allegation
Defendant further challenges the court's instructions on the "primary activities" element of the gang enhancement allegation. He argues the court failed to define the crimes listed as F-Troop's primary activities. He accordingly requests we reverse the gang-murder special circumstance finding, the gang-benefit findings, and the gang-principal firearm discharge findings. Even if the court erred, any error was harmless because the People's expert testified about F-Troop's primary activities and the People introduced evidence that other F-Troop gang members had been convicted of crimes constituting the gang's primary activities.
Section 186.22, subdivision (b)(4) imposes an enhancement for "any person who is convicted of a felony [including an enhancement for discharging a firearm from a vehicle, § 12022.55] committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." (See id., subd. (b)(4)(B).) A criminal street gang is defined as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in [section 186.22, subdivision (e)], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity." (Id., subd. (f).) The offenses enumerated in section 186.22, subdivision (e) include, among others, robbery, unlawful possession of a firearm, and sale of a controlled substance.
Pursuant to CALCRIM No. 1401, the court instructed the jury as follows: "A criminal street gang is any ongoing organization, association, or group of three or more persons, whether formal or informal: [¶] 1. That has a common name or common identifying sign or symbol; [¶] 2. That has, as one or more of its primary activities, the commission of robbery, felon in possession of a firearm, or [p]ossession of narcotics for sale; [¶] AND [¶] 3. Whose members, whether acting alone or together; engage in or have engaged in a pattern of criminal gang activity. [¶] In order to qualify as a primary activity, the crime must be one of the group's chief or principal activities rather than an occasional act committed by one or more persons who happen to be members of the group."
Defendant relies on the bench notes to CALCRIM No. 1401, which state, "The court should also give the appropriate instructions defining the elements of crimes inserted in the list of alleged 'primary activities,' or the definition of 'pattern of criminal gang activity' that have not been established by prior convictions or sustained juvenile petitions." (Judicial Council of Cal. Crim. Jury Instns. (2019) Bench Notes to CALCRIM No. 1401). Defendant interprets this comment to mean a court is required to instruct on the elements of a crime constituting a primary activity even if it resulted in a conviction but not on the elements of a crime constituting a pattern of criminal gang activity if it resulted in a conviction. The People disagree and interpret this comment to mean a court need not instruct on the elements of a crime resulting in a conviction when defining either a primary activity or a pattern of criminal gang activity. Their disagreement appears to concern the comma after the word "activities" in the bench notes and the following bracketed language in CALCRIM No. 1401: "<Give this paragraph only when the conduct that establishes the pattern of criminal gang activity, i.e., predicate offenses, has not resulted in a conviction or sustained juvenile petition.>"
The placement of the comma is irrelevant. CALCRIM No. 1401 is clear that instructions on the underlying crime are required only if they have not been established by prior convictions or sustained juvenile petitions. It would make no sense to require the jury to consider the elements of crimes that already resulted in convictions. Here, the People introduced the records of convictions of gang members for possession of methamphetamine for sale for the benefit of the gang and felon in possession of a firearm for the benefit of the gang. Any instructions on the elements of those crimes were therefore unnecessary.
Defendant notes the People did not produce records of convictions for robbery. Even if we assume the court erred by failing to define the elements of robbery (or the other two crimes), the error was harmless under any standard. (Chapman v. California, supra, 386 U.S. 18; People v. Watson (1956) 46 Cal.2d 818.) "The phrase 'primary activities,' as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group's 'chief' or 'principal' occupations." (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) Evidence of past or present criminal acts listed in section 186.22, subdivision (e) is admissible to prove a criminal street gang's primary activities. (Ibid.) A criminal street gang's primary activities also may be established through expert testimony. (Id. at p. 324.)
Here, robbery instructions would have made no difference in the outcome. The People's expert opined that F-Troop's primary activities included robbery and felony possession of firearms, including carrying a loaded firearm and possession of firearm by a convicted felon. Contrary to defendant's assertion that the expert gave no reasons for his opinion, he testified he investigated those types of crimes pertaining to F-Troop, talked to other officers who investigated those crimes, and reviewed court documents where gang members admitted committing those crimes. Any error accordingly was harmless.
The Court's Comments on the Cost of Trial Do Not Warrant Reversal
Defendant next contends the court made impermissible statements about the "per diem cost" of the trial, which implied the jury had to make a decision because a mistrial would waste time and money. Defendant's counsel did not object to the above comments. Even assuming defendant did not forfeit the issue by failing to object, the court's comments do not warrant reversal.
After one of the jurors arrived late to trial, the court made the following comments to the jury: "I know one of the jurors were late. I'm not going to inquire, I'm sure it's valid, but just keep in mind we can't get going unless everybody is here. [¶] This is an expensive operation. It's really expensive. I've heard quotes anywhere from $10,000 a day to $15,000 a day and, you know, that's why when it's prime time, we need you to be present. And there is a perception that maybe it's sort of unfair that we send you into the room and it's your time on this, but, you know, those are the rules that I have to follow. [¶] So once again, just—just keep in mind the expense and all of the work that goes into a case that we need your time."
Relying on People v. Gainer (1977) 19 Cal.3d 835 (Gainer), disapproved on a different point in People v. Valdez (2012) 55 Cal.4th 82, 163, and People v. Barraza (1979) 23 Cal.3d 675 (Barraza), defendant claims the court's comments "inferred to the jurors and led them to believe that if they failed to reach a verdict, a mistrial would be declared and the case would have to be retried, thereby resulting in a wasted effort and money." In Gainer, our Supreme Court condemned "'Allen charge[s]'" or "'dynamite charge[s]'"—improper instructions intended to dislodge a deadlocked jury. (Gainer, at p. 842.) One such instruction is a direction to minority jurors favoring acquittal to reconsider their doubts in light of the majority position favoring conviction. (Id. at p. 845.) The court also disapproved an instruction to jurors that "'You should consider that the case must at some time be decided,' with its attendant implication that a mistrial will inevitably result in a retrial . . . ." (Id. at p. 851.) Following Gainer, our Supreme Court found the following instructions to a deadlocked jury constituted prejudicial error: "'[T]he case is an important one, and its presentation to you has involved expense to both sides. If you fail to agree upon a verdict, the case will have to be tried before another jury selected in the same manner and from the same source as you . . . .'" (Barraza, at p. 681.)
Here, context matters. The comments were not given to the jury in the face of a deadlock or to minority jurors to rethink their position. The comments also did not urge the jury to reach a verdict to avoid a mistrial. Instead, the court was simply motivating jurors to show up on time.
People v. Andrews (1989) 49 Cal.3d 200 (Andrews) is instructive. In Andrews, our Supreme Court found comments similar to the one in the instant case did not run afoul of Barraza or Gainer. The trial court had commented on the costs of trial on three separate occasions during jury selection. (Andrews, at p. 220 & fn. 16.) The trial court first told the panel of prospective jurors: "'At between $3-4,000 a day to run this courtroom, you can imagine what it costs L.A. County.'" (Ibid.) The second comment (heard by three jurors who ultimately were empaneled to sit on the case) was: "'At a cost of between $300,000 to $400,000 a day to run this courtroom, you can imagine what it cost the taxpayers of L.A. County to have the case retried.'" (Ibid.) The third comment (heard by two people who later became jurors) was: "'[I]t costs something like $3-$4,000 a day to run this courtroom.'" (Ibid.) Because the comments did not suggest that the jury consider the cost of trial in their deliberations and "merely constituted an attempt by the trial court to stress the importance of obeying the court's admonitions" not to discuss the case with others or obtain information outside the courtroom, our Supreme Court found no reversible error. (Id. at pp. 220-221.)
The same considerations apply here. "[T]here is no reasonable probability the statements could have improperly affected the jury's deliberations." (Andrews, supra, 49 Cal.3d at p. 221.) "The comments did not suggest to the jurors that they consider the cost of trial in their deliberations." (Ibid.) Viewed in their proper context, it is clear the court merely intended to discourage the jurors from being late to trial. The court accordingly did not err.
The Court Did Not Err by Denying Defendant's Motions for New Trial
Defendant also argues the court erred by denying "his new trial motions, including his motion for new trial based on ineffective assistance of counsel, without appointing conflict-free counsel to investigate and present, if appropriate, a supplemental new trial motion based on ineffective assistance of counsel." He accordingly contends he was denied his right to counsel and that the matter should be remanded for new post-conviction proceedings. Because defendant never requested to substitute another attorney for his retained counsel, the court did not err.
Defendant's Motions for New Trial
Here, the court continued the sentencing hearing to May 11, 2018 after defendant's counsel received a letter from Reed, one of the People's trial witnesses. On May 11, 2018, defendant's counsel requested another continuance so he could subpoena Reed "who claim[ed] he ha[d] additional testimony which he didn't give at trial." The court continued the sentencing hearing to May 22, 2018. On the same day (May 11), defendant filed two handwritten motions on his own behalf - a "Motion For New Trial: Ineffective Assistance of Counsel" and a "Motion for New Trial Newly Discovered Evidence."
On May 22, 2018, the court stated it had not read the motions because defendant was represented by counsel. Defendant's counsel suggested he had filed the motion on defendant's behalf. Based on the record, it is not clear whether defendant's counsel was referring to both motions or only the motion for new trial due to newly discovered evidence. The People indicated they had not been served with the motions but had discovered the motions from the court's minutes and were prepared to address the merits.
The court then noted defendant's counsel had not filed a motion for new trial and that defendant's motion was an improper ex parte communication, which is why the court had not reviewed it. The court ultimately agreed to hear the motion, given that the People were prepared to address it, but explained there was nothing filed under oath. Based on the record, it appears the court was referring to the motion for new trial due to newly discovered evidence. After defendant's counsel stated there were no witnesses to call for the motion, the court announced its tentative ruling was to deny the motion "in that the document is not sworn and the defense does not have a witness that would testify to the items that are mentioned."
The court then turned to the motion for new trial due to ineffective assistance of counsel. Despite the court's initial statement that it had not read the motions, the court stated it had read the motion for new trial due to ineffective assistance of counsel and "disagree[d] with the facts that are contained in there as it relates to what [it] witnessed in court." The court observed the motion was filed late and again noted it was an ex parte communication. The court then asked defendant if he had retained another attorney, and defendant stated he had not. The court asked defendant to elaborate on the allegations in his motion. Defendant stated he did not believe his attorney had conducted a thorough pretrial investigation. He also claimed he had witnesses who could have testified as to his whereabouts at the time of the crime and claimed "they were never interviewed . . . never followed through on . . . ." He further stated he believed he had been misled and his attorney was not prepared.
Defense counsel who represented defendant at trial was retained counsel. --------
The court denied defendant's motion and explained: "The court does not know what was presented outside the record. I can only tell you what I saw in the record, and within the record, there was nothing that suggested to me that your lawyer was either not prepared or was incompetent. But again, the procedural aspect of this, I'm denying this motion because of the lateness when it was filed. There is nothing under oath. And in addition to that, with respect to the merits, what you've given to me and your statement does not justify nor does it raise any issue with the court as to the ineffectiveness of your counsel."
Standard of Review and Applicable Law
Although ineffective assistance of counsel is not a statutory ground for granting a new trial, the issue may nevertheless be asserted as the basis for a motion for new trial. (§ 1181; People v. Fosselman (1983) 33 Cal.3d 572, 582-583 (Fosselman).) We review a trial court's denial of a motion for new trial for abuse of discretion. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1251.)
Relying on Fosselman, supra, 33 Cal.3d 572, 582-584, defendant argues the court "erred in denying defendant competent counsel and a meaningful opportunity to investigate and present a supplemental motion for new trial based on ineffective assistance of trial counsel." Fosselman held that ineffective assistance of counsel is a valid, nonstatutory ground for granting a new trial. (Ibid.) But the case did not address the precise issue here—whether the trial court is required to appoint substitute counsel to investigate and present a supplemental new trial motion based on ineffective assistance of counsel after the defendant files his own motion.
As the People correctly note, the court had no duty to undertake an inquiry under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Under Marsden, a defendant is deprived of his constitutional right to effective assistance of counsel if a trial court denies his motion to substitute one appointed counsel for another without an opportunity to state the reasons for his request. (People v. Ortiz (1990) 51 Cal.3d 975, 980, fn. 1.) Here, defendant did not have appointed counsel. (Id. at p. 984 [holding a nonindigent defendant was not required to satisfy the Marsden requirements to discharge his retained counsel].)
Regardless, defendant never requested substitute counsel. People v. Gay (1990) 221 Cal.App.3d 1065 (Gay) is instructive. In Gay, the defendant filed a handwritten motion for new trial claiming ineffective assistance of counsel. (Id. at pp. 1066-1067.) He asserted his appointed counsel failed to provide an adequate defense but did not request the court appoint new counsel to prepare or argue the motion for new trial. (Id. at pp. 1067-1068.) The trial court denied the motion without questioning the defendant or his counsel about the claimed ineffective assistance of counsel. (Ibid.) On appeal, the defendant argued the trial court erred because it "failed to determine whether it should appoint substitute counsel to present his motion for new trial." (Ibid.) The appellate court rejected the defendant's contention because he did not request substitute counsel to prepare and present a motion for new trial based on inadequate representation. (Id. at p. 1071.)
As in Gay, defendant did not request substitute counsel at any point in the proceedings. The court even asked defendant if he had retained another attorney, and defendant did not use that opportunity to request substitute counsel. Even without such a request, defendant suggests the court had a duty to determine whether to appoint substitute counsel. But "[a] trial judge should not be obligated to take steps toward appointing new counsel where defendant does not even seek such relief." (Gay, supra, 221 Cal.App.3d at p. 1070.) "[U]nless requested to do so by defendant, the trial court has no statutory or inherent power to substitute appointed counsel, sua sponte, based on the judge's subjective opinion the attorney is incompetent." (Ibid.) Because defendant did not request substitute counsel, the court was only required to consider defendant's motion.
While defendant contends the court "did not read the motions and had insufficient information to properly rule on them," the court stated it had read the motion regarding ineffective assistance of counsel despite its initial statement that it had not. The court explained, "I've read it, and when I read it, I do disagree with the facts that are contained in there as it relates to what I witnessed in court." The court also allowed defendant to summarize his allegations and provided an opportunity for him to call witnesses (which he did not have) for the motion regarding newly discovered evidence. Defendant does not challenge the court's denial of the motions on any other grounds. We accordingly find no error.
There Is No Cumulative Error
Defendant contends the cumulative effect of the individual errors compels reversal. Because we reject defendant's primary contentions of error on appeal, there was no cumulative error.
The Court Erred in Calculating the Sentence on Count 2
When it sentenced defendant on count 2, first degree attempted murder, the court imposed a term of 67 years to life. This consisted of seven years to life for the substantive charge, 25 years to life for the firearm enhancement, two consecutive five-year enhancements for the two prior serious felony convictions, and 25 years to life pursuant to the Three Strikes Law. Defendant argues his sentence should have been 21 years to life, and the People argue the sentence should have been 77 years to life. We agree with the People.
The sentence for a third strike defendant "shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of [one of three options]." (§ 667, subd. (e)(2)(A).) Option 1 is "[t]hree times the term otherwise provided as punishment for each current felony conviction . . . ." (Id., subd. (e)(2)(A)(i).) Option 2 is "25 years." (Id., subd. (e)(2)(A)(ii).) Option 3 is "[t]he term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046." (Id., subd. (e)(2)(A)(iii).)
Defendant argues the court erred by imposing a 25 year to life term pursuant to the Three Strikes Law on top of the seven year to life sentence for the substantive charge. Relying on option 1 under section 667, subdivision (e)(2)(A)(i), defendant claims his sentence on count 2 should be 21 years to life, which reflects a sentence of seven years to life tripled. The People disagree. Relying on option 3 under section 667, subdivision (e)(2)(A)(iii), the People argue the proper sentence was 77 years to life.
The People are correct because the indeterminate term described in the Three Strikes Law is life imprisonment with a minimum term calculated "as the greater of" one of three options. (§ 667, subd. (e)(2)(A).) Under option 3, the entire "nonstrike" sentence, which includes any enhancements, is used to set the punishment for the crime. (People v. Dotson (1997) 16 Cal.4th 547, 559.) Any enhancements are then added to the punishment even though they were included in the computation of the minimum term. (Ibid.) Here, defendant's term for the underlying conviction is seven years to life plus 25 years to life for a firearm enhancement plus two consecutive five-year enhancements for the two prior serious felony convictions. His term for the crime is therefore 42 years to life. The court then should have added the enhancements, which include the 25 years to life for the firearm enhancement and the two 5-year priors. His total sentence was therefore 77 years to life, which is the greatest sentence under section 667, subdivision (e)(2)(A). The judgment accordingly must be modified to provide the sentence on count 2 (first degree attempted murder) is 77 years to life, unless the court exercises its discretion to strike one or more of the five-year prior serious felony enhancements as discussed post.
The Court Should Have an Opportunity to Exercise Its Discretion With Regard To the Five-Year Prior Serious Felony Enhancements
Defendant's sentence in this case includes two five-year prior serious felony enhancements pursuant to section 667, subdivision (a)(1). At the time of defendant's sentencing, the court had no power to strike or dismiss the five-year serious felony priors. While this appeal was pending, the Governor signed Senate Bill No. 1393 (2017-2018 Reg. Sess.) into law, which took effect on January 1, 2019. Senate Bill No. 1393 amends sections 667, subdivision (a) and section 1385, subdivision (b) so the court may now, in its discretion, strike or dismiss a prior serious felony conviction for sentencing purposes.
The People concede the rule of retroactivity under In re Estrada (1965) 63 Cal.2d 740 applies to Senate Bill No. 1393. However, the People argue remand is futile because the "court's statements at sentencing clearly indicated that it would not have dismissed the enhancements in any event." The People note the court denied defendant's request to strike the firearm enhancement under section 12022.53 after noting that "this act by the defendant was an act of great violence, it showed cruelty, it showed viciousness, it showed all of those things to cause the death of a young man and severely injuring another." The People also note the court stated: "I cannot conclude any mitigating facts in this case. There are just none."
Where, as here, "the record shows that the trial court proceeded with sentencing on the . . . assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing." (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) "Defendants are entitled to 'sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,' and a court that is unaware of its discretionary authority cannot exercise its informed discretion." (Ibid.; accord, People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) "[U]nless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion,'" the appropriate remedy is to remand for resentencing. (Gutierrez, at p. 1391; accord, People v. McDaniels (2018) 22 Cal.App.5th 420, 425 ["remand is required unless the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the previously mandatory] enhancement"].)
Despite the court's comments, we cannot conclude categorically that the court would not exercise its discretion to strike the prior serious felony enhancements. Although the court did not strike the firearm enhancement, the sentencing impact of striking the five-year prior serious felony enhancements is much less than striking the firearm enhancement which had added 25 years to life on the base term for counts 1 and 2. The court's statements do not include any remarks indicating whether or not it would strike the five-year prior felony enhancements if it had the ability to do so. We are not suggesting how the court should exercise its discretion, but rather giving it the opportunity to do so in the first instance.
DISPOSITION
The judgment of conviction is affirmed, but the matter is remanded for the court to consider whether to dismiss or strike the two 5-year prior serious felony enhancements in the furtherance of justice. Following that decision, the court shall resentence defendant taking into account the effect of its decision on the five-year prior serious felony enhancements together with the correct calculation of the sentence on count 2 as described in this opinion.
IKOLA, J. WE CONCUR: O'LEARY, ACTING P. J. BEDSWORTH, J.