Opinion
E070654
11-15-2019
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER JOSAFAT MARQUEZ et al., Defendants and Appellants.
Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant Christopher Josafat Marquez. Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Gomez, Jr. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Kristen Ramirez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB1301863) OPINION APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson, Jr., Judge. Affirmed. Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant Christopher Josafat Marquez. Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Gomez, Jr. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants and appellants Christopher Josafat Marquez and Anthony Gomez, Jr., (collectively, defendants) went out drinking and to a strip club in Colton on the night of May 2, 2013. After leaving the strip club, Gomez drove them to a nearby gas station and pulled up to the victim, who was at the gas station filling his truck. Gomez called to the victim, "white boy," and motioned for him to come to their vehicle. When the victim approached, Marquez pointed a gun in his face. The victim tried to run away but Marquez chased after him, unloading his six-shooter .357 Magnum at the victim. The victim was shot in the head, and as a result, was permanently paralyzed on the right side of his body. Gomez waited for Marquez and they drove away together. When police caught up to defendants, Gomez ran from the police but was eventually arrested.
On appeal, Marquez claims the trial court committed prejudicial constitutional error by refusing to instruct the jury with assault with a deadly weapon as a lesser included offense of attempted murder. Gomez contends (1) there was not substantial evidence presented to support that he knew Marquez intended to kill the victim or that Marquez harbored such an intent to support Gomez aided and abetted the attempted murder of the victim; and (2) his counsel was ineffective and violated his Sixth Amendment rights by failing to object to the prosecutor's closing arguments regarding aiding and abetting.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
Defendants were convicted of attempted murder. (Pen. Code, §§ 664, 187, subd. (a).) The jury also found true as to Marquez the additional allegations that he personally used a firearm, personally discharged a firearm and discharged a firearm causing great bodily injury (§ 12022.53, subds. (b), (c) & (d)); and that he inflicted great bodily injury causing paralysis (§ 12022.7, subd. (b)). The jury found true as to Gomez that a principal discharged a firearm during the commission of the crime. (§ 12022, subd. (a)(1).)
All further statutory references are to the Penal Code unless otherwise indicated.
In a bifurcated court trial proceeding, the trial court found true that Gomez had suffered three prior serious and violent felony convictions (§§ 667, subds. (a)(1), (c) & (e)(1), 1170.12, subd. (c)(1)). Gomez was sentenced to the determinate term of 11 years followed by the indeterminate term of 27 years to life to be served in state prison. Marquez was sentenced to the determinate term of nine years for the attempted murder followed by the indeterminate term of 25 years to life for the section 12022.53, subdivision (d), gun enhancement.
Marquez brought a motion for the trial court to strike his gun enhancements pursuant to section 12022.53, subdivision (h), which was denied by the trial court.
Early in the trial, Colton Police Detective Eric Campa identified Marquez as the passenger of the Dodge Durango and Gomez as the driver, from video footage retrieved from the Shell gas station and Club 215.
1. PEOPLE'S CASE-IN-CHIEF
Floyd Kanatzar was a bouncer at Club 215 in Colton. Defendants came into Club 215 around 7:00 p.m. on May 2, 2013. They stayed over an hour and had a few beers. One of them asked for change for a $100 bill but he told them they would have to try across the street at the Shell gas station, which was only one-half mile from Club 215. When defendants were leaving Club 215, they tried to take their beers but Kanatzar told them they would have to leave them. They put down the beers without incident. Kanatzar did not observe that either of them was intoxicated. When they left Club 215 at 8:44 p.m., Gomez was driving the Durango and Marquez was in the passenger seat.
Jovan Fierro stopped at the Shell gas station located on South Iowa Avenue in Colton on May 2, 2013, to get gas. The victim drove up to another pump as Fierro was pumping gas. As the victim was pumping gas, defendants quickly drove up next to the victim's truck. Fierro got back in his car and overheard the victim saying street names to the defendants; Fierro assumed the victim was giving them directions because he also heard one of the defendants in the Durango say a street name. Fierro then observed a gun pointing out of the passenger's side of the Durango. The victim stepped backward, tripping over the gas hose. The victim ran straight for the convenience store at the station.
Fierro heard several gunshots. He crouched down in his car and did not see whether anyone got out of the Durango. The Durango then left the gas station. He looked up and saw the victim on the ground.
David Carranza was at the Shell gas station on May 2 pumping gas; the victim was pumping gas at the same time. He recalled that defendants arrived at the gas station and appeared to ask the victim for directions. Carranza heard the victim ask them, "Oh, you need to go where?" Carranza believed the victim was speaking loudly in order to get the attention of other customers at the gas station. Carranza then heard the passenger, identified as Marquez, in the Durango ask, "Where is the money at?" Marquez asked one more time and then jumped out of the vehicle. The victim began to run and Marquez ran after him. Carranza saw that Marquez had a gun. Carranza heard gunshots and got under his car to avoid being shot. He saw the victim trip over the gas hose and then keep running. Marquez was shooting toward the victim. Marquez jumped back into the Durango and they drove off.
The victim, who survived the shooting, explained that he had stopped at the Shell station to get gas on his way to work at approximately 9:45 p.m. He was pumping gas when defendants drove up next to him and the driver, identified as Gomez, got his attention by calling out "white boy." Gomez motioned the victim over. The victim thought that he wanted directions. The victim asked the driver what he wanted. From his vantage point, the victim could only see the driver. The victim approached the SUV and saw Marquez, who had the seat leaned all the way back. Marquez stuck a gun in the victim's face but did not say anything. The victim took off running. As he was running toward the entrance to the convenience store, he heard four gunshots "racing by [his] ear"; he was then shot in the head.
On May 2, Colton Police Corporal Gregory Castillo was dispatched to the Shell gas station regarding a report of shots fired. When he arrived, he discovered the victim on the ground. There was a large amount of blood on and around him. There was a bullet hole on the side of the victim's head. The victim had no weapons on him. The victim was unable to speak. The victim was immediately transported to the hospital.
Corporal Castillo reviewed video surveillance from the Shell station and obtained a description of the suspect Durango. As discussed ante, Detective Campa obtained video surveillance from the Shell station, which depicted the shooting of the victim and the parking lot of Club 215. Marquez could be clearly seen on the video. Defendants had arrived at the Shell station at 8:48 p.m. and left at 8:49 p.m.
Riverside Police Department dispatch broadcasted a description of the Durango and defendants. At 9:27 p.m., Riverside Police Officers Henry Park and Brett Stennett observed a vehicle that matched the description of the broadcasted vehicle as they were traveling on University Avenue. Two Hispanic males were in the vehicle. Officer Park pulled behind the vehicle intending to initiate a traffic stop. As the driver pulled into the parking lot of a fast food restaurant, Officer park initiated his lights and siren. The driver ignored the lights and siren and pulled forward into the drive-through lane, stopping behind a vehicle at the drive-through window.
Officers Park and Stennett exited the patrol vehicle and started walking toward the Durango. Officer Park made eye contact with the driver, identified at trial as Gomez, and told him to shut off the vehicle. Gomez said, "Fuck this" and drove forward. Gomez exited the Durango and ran away. Officer Stennett approached the passenger's side of the Durango; the passenger, identified at trial as Marquez, put his hands up and asked "What did I do?" Officer Stennett could see into the Durango that the stereo was broken out and there was a handgun shoved into the space where the stereo had been. He arrested Marquez. Marquez had no trouble following commands, easily got out of the Durango, and was handcuffed.
Officer Park pursued Gomez who ran across University toward another fast food restaurant, through the parking lot and down a back alleyway, where he eventually tripped and fell "on his rear end" facing Officer Park. Officer Park demanded that he lie down on the ground but Gomez refused. Officer Park kicked him in the chest and Gomez fell backward, where he immediately rolled on to his stomach placing his hands beneath him. Officer Park was able to pull Gomez's hands out and handcuffed him.
Detective Campa saw defendants once they were transported to the Colton Police Department. He met with Marquez approximately one hour after he was arrested. Marquez's eyes were bloodshot and he smelled of alcohol. He appeared to be intoxicated. Marquez was able to answer questions and understood what was happening; he was not overly intoxicated or incoherent. Gomez did not exhibit any signs of being intoxicated.
The revolver retrieved from the Durango contained six fired casings. Bullet fragments and bullet holes / strikes were found at the Shell station, including bullet holes on the walls of the convenience store and bullet fragments on the ground near the gas pumps. Viable bullet fragments recovered from the Shell station were compared to the casings retrieved from the revolver and bullets test fired from the revolver. It was determined the fragments were fired from the revolver.
Dr. David Patterson treated the victim at his rehabilitation facility in July 2013 after his initial stay at an area hospital. The victim had been shot in the head, which resulted in traumatic brain injury including skull fractures. He initially was unable to speak. He was paralyzed on the right side of his body. He had trouble swallowing and had drooping in his face. The paralysis was permanent. He had a seizure disorder that had to be treated with medication. He was clinically depressed and had chronic headaches.
2. DEFENSE CASE
Michael Troy Peoples had known Gomez since he was a baby and was close with his family. Gomez was not a gang member but had grown up around gang members. Gomez had gone to prison for committing robbery and carjacking and when he was released, he got a job. He had been in prison for at least 11 years. Peoples insisted that Gomez had changed after prison. Gomez was not a violent person.
Louis Pinckney had known Gomez for five years; he testified that Gomez was quiet and not aggressive. The mother of Gomez's girlfriend visited Gomez in jail; she visited to see how he was, and to bring Gomez's son to visit him. Gomez was always kind and gentle with her and her daughter. He was a good father.
Marquez's sister Vianey Coyote saw Marquez at around 3:00 or 4:00 p.m. on May 2, 2013. He was having troubles in his marriage; he was drunk and emotional. Marquez was picked up from her house by a friend or friends.
DISCUSSION
A. SUBSTANTIAL EVIDENCE THAT GOMEZ AIDED AND ABETTED ATTEMPTED MURDER
Gomez contends the evidence was insufficient to support that he aided and abetted the attempted murder of the victim. He insists he was unaware that Marquez intended to kill the victim before Marquez got out of the Durango because Marquez "instantaneously" decided to kill the victim. Gomez further insists that the fact he waited for eight seconds while the shooting occurred and did not drive away was due to the fact he was "stunned" by the "totally unexpected shooting" and not because he was complicit in Marquez's plan to kill the victim. He contends that the record supports only that he was an accessory after the fact.
1. STANDARD OF REVIEW
"When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] . . . We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility." (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
2. ANALYSIS
" 'Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.' " (People v. Thomas (1992) 2 Cal.4th 489, 514.)
Here, the prosecutor proceeded against Gomez based on a theory of aiding and abetting attempted murder. " 'The mental state required for attempted murder has long differed from that required for murder itself. Murder does not require the intent to kill. Implied malice—a conscious disregard for life—suffices. [Citations.]' [Citation.] In contrast, '[a]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.' " (People v. Smith (2005) 37 Cal.4th 733, 739; see also People v. Lee (2003) 31 Cal.4th 613, 623.)
"One who intentionally attempts to kill another does not often declare his state of mind either before, at, or after the moment he shoots. Absent such direct evidence, the intent obviously must be derived from all the circumstances of the attempt, including the putative killer's actions and words. Whether a defendant possessed the requisite intent to kill is, of course, a question for the trier of fact." (People v. Lashley (1991) 1 Cal.App.4th 938, 946.)
"An aider and abettor . . . must 'act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.' " (People v. Mendoza (1998) 18 Cal.4th 1114, 1123.) "Mere presence at the scene of a crime is not sufficient to constitute aiding and abetting, nor is the failure to take action to prevent a crime, although these are factors the jury may consider in assessing a defendant's criminal responsibility. [Citation.] Likewise, knowledge of another's criminal purpose is not sufficient for aiding and abetting; the defendant must also share that purpose or intend to commit, encourage, or facilitate the commission of the crime." (People v. Nguyen (1993) 21 Cal.App.4th 518, 529-530 (Nguyen).) Nevertheless, "presence at the crime scene, companionship, and conduct before and after the offense" are factors that "may be considered in determining aiding and abetting" liability. (In re Juan G. (2003) 112 Cal.App.4th 1, 5.)
"[I]t is not necessary that the primary actor expressly communicate his criminal purpose to the defendant since that purpose may be apparent from the circumstances." (Nguyen, supra, 21 Cal.App.4th at pp. 531-532.)
The jury here was instructed with CALCRIM No. 401 on aiding and abetting that the People must prove: "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." The jury was further instructed, "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." It was further advised, "If you conclude that the defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of the crime or fails to prevent the crime does not, by itself, make him or her an aider and abettor. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant did not withdraw. If the People have not met this burden, you may not find the defendant guilty under an aiding and abetting theory." The jury was instructed as to attempted murder that Marquez, as the direct perpetrator, had to have the intent to kill the victim.
Here, there was substantial evidence presented to support that Marquez intended to kill the victim, and that Gomez shared Marquez's intent to kill the victim. While the prosecutor conceded that Marquez decided instantaneously to shoot the victim, that did not foreclose the jury from concluding that Gomez also shared that intent.
Gomez called over to the victim, "white boy," when defendants pulled up next to the victim. The victim testified that when he approached the Durango, he could only see Gomez. However, as he got closer, he could see that Marquez was leaned back in his seat and had a gun in his hand. Marquez immediately exited the Durango and started shooting directly at the victim, emptying his gun. The jury could reasonably conclude Gomez was aware that Marquez had the gun in the Durango and that when he exited the vehicle and started shooting that Marquez intended to kill the victim. Even if Marquez instantaneously decided to kill the victim, Gomez still could share his intent. "Aiding and abetting may be committed 'on the spur of the moment,' that is, as instantaneously as the criminal act itself." (Nguyen, supra, 21 Cal.App.4th at p. 532.) The jury could reasonably conclude that since Gomez observed Marquez with the revolver, and his subsequent shooting of the victim, that he shared Marquez's intent.
Gomez's intent to facilitate and encourage the attempted murder of the victim was further evidenced by the fact that Gomez waited for Marquez to return to the Durango and drove him away from the scene. Gomez had eight seconds to drive away once Marquez started shooting. Gomez contends the evidence supports that he was "stunned" and could not move because of the unexpected shooting. This claim is merely Gomez's interpretation of the evidence. However, in reviewing a sufficiency of the evidence claim, "we presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding." (People v. Lindberg, supra, 45 Cal.4th at p. 27.) The evidence supports that Gomez waited for Marquez to shoot the victim and then facilitated and encouraged the shooting by helping Marquez leave the scene.
Finally, the jury could reasonably rely on Gomez's flight after the crime to show consciousness of guilt. The jury was instructed with the flight instruction (CALCRIM No. 372): "If the defendant fled immediately after the crime was committed, that conduct may show he was aware of his guilt. If you conclude the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself." The jury could consider this evidence, along with the above evidence, in finding Gomez aided and abetted the attempted murder. Substantial evidence supports Gomez's conviction of attempted murder.
B. PROSECUTORIAL MISCONDUCT AND INEFFECTIVE ASSISTANCE OF COUNSEL
Gomez insists the prosecutor committed misconduct in closing argument by improperly arguing the law on aiding and abetting; the jury relied on this argument in finding Gomez guilty of aiding and abetting in the attempted murder without finding he shared Marquez's intent to kill the victim. Gomez admits that defense counsel did not object to any of the instances of prosecutorial misconduct but argues that he received ineffective assistance of counsel in violation of his Sixth Amendment rights.
1. ADDITIONAL FACTS
After the presentation of evidence and instruction to the jury, which included CALCRIM No. 401, as detailed ante, the prosecutor argued in closing that Marquez got out of the Durango with the firearm in his hand ready to shoot. He had prepared, as he was seen in the video "fiddling" with something—presumably the revolver—before exiting the vehicle. The victim was hit by one of the bullets. The prosecutor also argued that defendants targeted the victim, a "white boy," rather than anyone else who was also at the station. The prosecutor argued there was no other reason to point a gun at someone and shoot six times other than to intend to kill.
The prosecutor described Gomez as the "get-away driver." The prosecutor referred to the elements of CALCRIM No. 401. The prosecutor argued that the jury had to consider what Gomez did before, during and after the shooting. The prosecutor then set forth the evidence supporting that Gomez aided and abetted Marquez: defendants "hang out" prior to the shooting; Gomez knew that Marquez had the gun prior to Marquez getting out of the Durango because he was holding it prior to exiting the vehicle; the entire time that Marquez shot at the victim, Gomez remained at the gas station and let Marquez back in the Durango after the shooting; Gomez waited because he knew that Marquez was shooting at the victim and he was willing to drive them away; once Gomez was stopped by the police, he ran; Gomez pulled right up to the victim, the "white boy"; Gomez had eight seconds where Marquez was out of the Durango during which time he could have driven away.
The prosecutor also argued, "The law also talks about different factors that you can consider when you're determining whether someone is an aider and abettor. Some of those factors are presence at the crime scene, companionship, conduct before, conduct after, and flight from the crime scene, also the failure to prevent the crime." (Italics added.) The prosecutor apparently used a PowerPoint presentation and presented a slide with the above information, which also included citations to case law. The prosecutor argued defendants were companions, Gomez waited for Marquez, and Gomez evaded police. The prosecutor then discussed the fourth element of aiding and abetting that Gomez's actions in being the getaway driver helped Marquez commit the crime. At no time did Gomez's counsel object to the argument.
Gomez's counsel argued in response that Gomez was just a victim of Marquez's actions. Gomez's counsel argued that aiding and abetting required knowledge and specific intent to aid the crime before and during the crime, not after. Marquez was emotional and it was not clear why he committed the crime. Gomez had no specific intent to aid Marquez; Marquez acted on his own.
The prosecutor responded to Gomez's argument that Gomez did not have the intent to aid the attempted murder by arguing, "They were together in the car, at the club after—acting together, hanging out together. The reason why I can refer to them as " 'they' " is because companionship is a factor that you can use. The law says that. I'm just following the law. I can use companionship as a factor for aiding and abetting."
After trial, Gomez's trial counsel, James Gass, brought a motion for new trial based on insufficient evidence and prosecutorial misconduct. As to the prosecutorial misconduct claim, he argued that a new trial must be granted because the prosecutor improperly argued to the jury that companionship was enough to show aiding and abetting by Gomez. Gass submitted his own declaration. He insisted he did not pay close attention to the prosecutor's argument because he was formulating his own closing argument; he thought the prosecutor had presented a slide to the jury with case citations. The prosecutor had argued that the case law was clear that companionship was a factor that could be considered evidence of aiding and abetting; Gass was unaware of any such supporting case law. After trial, Gass was given a copy of the prosecutor's PowerPoint presentation and it included a case citation and a quoted paragraph that " 'among the factors which may be considered in determining aiding and abetting are: presence at the crime scene, companionship, and conduct before and after the crime, including flight.' " This citation to case law constituted prosecutorial misconduct.
Marquez also filed a motion for new trial but does not raise any issues pertaining to the denial of his motion on appeal.
The prosecution filed opposition. Defense counsel had been shown the PowerPoint presentation prior to closing argument. There was no objection by either defense counsel during closing argument. Further, citing published case law was not misconduct. Moreover, no reasonable jury would have concluded that any companionship would automatically lead to aiding and abetting liability.
The prosecutor included the PowerPoint presentation with the opposition. Included was the CALCRIM No. 401 instruction, which set out the four elements, as outlined ante. Also was included a slide which provided, "In re Jesse L. (131 Cal.App.3d 202): [¶] "among the factors which may be considered in determining aiding and abetting are presence at the crime scene, companionship, and conduct before and after the crime, including flight." [¶] in re Lynette G. 54 Cal.app.3d 1087; People v. McDaniels, 107 Cal.App.3d 898) [¶] Failure to prevent the crime, may be considered in determine if driver was aider and abettor." The next slide provided the evidence that supported companionship, presence at the crime scene, and actions after the crime. In response, Gass insisted that he did not look through the entire PowerPoint presentation, including the slides on aiding and abetting.
The motion was heard by the trial court. Gass argued that the prosecutor improperly cited case law and argued that a factor in aiding and abetting was companionship. The prosecutor relied on the theory of companionship. The prosecutor advised the trial court that defense counsel was shown the PowerPoint and never objected at trial. Further the prosecutor argued it was proper for the jury to consider companionship, like presence, in deciding aiding and abetting liability. Gass stated on the record that he should have objected to the slide.
The trial court first found that there was sufficient evidence of aiding and abetting based on Gomez being with Marquez at Club 215, Gomez waiting for Marquez, and evading law enforcement. As for the PowerPoint slide, companionship was not the only argument made by the prosecutor to the jury. The trial court concluded, "[T]he Court will find that, although the Court has some concern that that case was cited in [the prosecutor]'s closing argument without running it past the Court or directly with counsel, the Court finds that it didn't impact the jury to such an extent that the Court would grant a new trial in this matter." It clarified there was no prosecutorial misconduct.
2. INEFFECTIVE ASSISTANCE OF COUNSEL
Gomez concedes that he did not object to the instances of misconduct. Despite this acknowledgment, he still appears to contend that the prosecutor committed misconduct by claiming the prosecutor's argument was improper, incomplete and misleading. "[A] claim of prosecutorial misconduct is not preserved for appeal if defendant fails to object and seek an admonition if an objection and jury admonition would have cured the injury." (People v. Crew (2003) 31 Cal.4th 822, 839.) Even if the slide or comments made by the prosecutor during closing argument were improper, all of the instances could have been cured by an admonition to the jury referring the jurors to the instructions and instructing it to ignore the comments of counsel. As such, to the extent Gomez raises an independent prosecutorial misconduct claim, in addition to his ineffective assistance of counsel claim, he has waived his claims of prosecutorial misconduct.
Gomez contends that he received ineffective assistance of counsel due to his counsel's failure to object. In order to prevail on a claim that defense counsel rendered ineffective assistance, Gomez must show both 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., that a reasonable probability exists that, but for counsel's failings, the result would have been more favorable to Gomez. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694 (Strickland); People v. Hernandez (2012) 53 Cal.4th 1095, 1105.) " 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " (People v. Bolin (1998) 18 Cal.4th 297, 333.) "It is not sufficient to show the alleged errors may have had some conceivable effect on the trial's outcome; the defendant must demonstrate a 'reasonable probability' that absent the errors the result would have been different." (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.)
"[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." (Strickland, supra, 466 U.S. at p. 697.)
Gomez has failed to establish a reasonable probability exists that, but for counsel's failings, the result would have been more favorable to him. (Strickland, supra, 466 U.S. at pp. 688, 694.) Gomez's argument revolves around the PowerPoint presentation in which the jury was informed by the prosecutor that factors that could be considered in determining aiding and abetting liability were presence at the crime scene, companionship and conduct before and after the crime and citation to case law. He insists the prosecutor's argument allowed the jurors to find him guilty as an aider and abettor without finding that he knew Marquez intended to kill the victim and that he intended to help him. The jury relied on only those factors listed by the prosecutor in the PowerPoint slide in finding him guilty of aiding and abetting Marquez, without finding the necessary intent.
However, based on the instructions as a whole and the argument by both counsel, it is not reasonably probable the jury convicted Gomez based only on the factors listed by the prosecutor in the PowerPoint slide and necessarily concluded that Gomez shared Marquez's intent to kill.
The jury was instructed with CALCRIM No. 401 setting forth the elements of aiding and abetting liability, which included that Gomez had to share the intent of the perpetrator. The prosecutor included this slide in her closing argument PowerPoint presentation. The jury was also instructed that not only did the People have to prove that defendants did the acts charged, but acted with a particular intent. In addition, Gass almost exclusively argued that Gomez did not share Marquez's intent. The jury was well aware it must find that Gomez shared Marquez's intent to kill the victim; the argument by the prosecutor, which was legally correct, did not obviate that requirement. Gomez has failed to show ineffective assistance of counsel based on the prosecutor's argument, as it is not reasonably probably a different result would be obtained had the argument not been made by the prosecutor.
C. ASSAULT WITH A DEADLY WEAPON LESSER OFFENSE
Marquez contends the trial court erred by failing to instruct on the lesser included offense of assault with a firearm. The trial court refused to so instruct the jury as it concluded it was not a lesser included offense despite the attempted murder being charged with firearm enhancements.
In discussing the instructions, Marquez's counsel requested the lesser included offense instruction of assault with a firearm and Gomez joined in the request. The instruction could be limited to a violation of section 245, subdivision (a)(2), assault with a firearm. The People argued that a violation of section 245, subdivision (a)(2) was not a lesser included offense of attempted murder. Although the prosecutor conceded that it may be a lesser related offense, based on the facts and the evidence, it was not applicable. The trial court denied the instruction.
A trial court has a sua sponte duty to instruct on all necessarily included offenses supported by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 148-149.) "For purposes of determining a trial court's instructional duties," a " 'lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.' " (People v. Smith (2013) 57 Cal.4th 232, 240.) When applying the accusatory pleading test, a court considers whether the charging allegations describe the offense in such a way that, if committed as alleged, the lesser offense is necessarily committed. (People v. Alarcon (2012) 210 Cal.App.4th 432, 436 (Alarcon).)
Assault with a firearm is not a lesser included offense of attempted murder. (People v. Parks (2004) 118 Cal.App.4th 1, 6.) Moreover, assault with a firearm does not become a lesser included offense of attempted murder when the accusatory pleading includes firearm allegations. (People v. Wolcott (1983) 34 Cal.3d 92, 100-102 (Wolcott); Alarcon, supra, 210 Cal.App.4th at pp. 436-439 [assault with a firearm not a lesser offense of attempted murder with firearm enhancement]; accord People v. Bragg (2008) 161 Cal.App.4th 1385, 1398.)
In Wolcott, our Supreme Court held that assault was not a lesser included offense of robbery, and the "addition of an allegation that defendant used a firearm . . . does not alter this conclusion." (Wolcott, supra, 34 Cal.3d at pp. 98, 100-102.) Wolcott concluded that the addition of the firearm allegation did not result in a new offense, but merely prescribed additional punishment for an offense in which a firearm was used. (Id. at p. 100.) It found that considering the enhancement allegation as part of the accusatory pleading for the purpose of defining a lesser included offense would "confuse the criminal trial." (Id. at p. 101.)
Recognizing the conclusion in Wolcott, Marquez argues that it was "fatally undermined" by Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Alleyne v. United States (2013) 570 U.S. 99, which both concluded any fact that increases punishment beyond the prescribed statutory maximum for the charged offense "is the functional equivalent of an element of a greater offense than the one covered by the jury verdict" and must be found true beyond a reasonable doubt by a jury. (Apprendi, at p. 494, fn. 19; Alleyne, at p. 103.) Hence, Wolcott's conclusion that the enhancement was not part of the substantive crime was erroneous.
In Alarcon, supra, 210 Cal.App.4th 432, the defendant made the same argument that Marquez makes here—that the trial court erroneously refused to instruct on assault with a deadly weapon as a lesser included offense of attempted murder based on the firearm use enhancement allegations associated with the attempted murder allegation. The defendant in Alarcon "maintain[ed] that Wolcott was 'overruled sub rosa' by Apprendi." (Id. at p. 436.) Alarcon rejected the claim finding that Apprendi did not undermine Wolcott because Apprendi established "that an enhancement allegation specifies an element of a greater crime only for certain purposes not encompassing the accusatory pleading test." (Alarcon, at p. 438.) We agree with Alarcon. Apprendi does not require us to "treat penalty allegations as if they were actual elements of offenses for all purposes under state law." (Porter v. Superior Court (2009) 47 Cal.4th 125, 137 [enhancements should not be considered in defining necessarily included offenses for double jeopardy protection, Apprendi notwithstanding]; see also People v. Izaguirre (2007) 42 Cal.4th 126, 128, 134 [enhancement allegations may not be considered in defining necessarily included offenses for the multiple conviction rule, Apprendi notwithstanding].)
The trial court properly refused to instruct on a lesser charge of assault with a firearm and none of the cases cited by Marquez or his arguments compel us to reject the reasoning in Wolcott or Alarcon, supra.
DISPOSITION
The judgments of conviction are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. MENETREZ
J.