Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F03986
BUTZ, J.Defendant Julius Monterey Robinson was convicted by a jury of two counts of attempted willful, deliberate and premeditated murder (Pen. Code, § 187/664), malicious discharge of a firearm at an inhabited dwelling causing great bodily injury (§§ 246, 12022.53, subd. (d) (hereafter § 12022.53(d))) and malicious discharge of a firearm from a motor vehicle causing great bodily injury (§§ 12034, subd. (d) (hereafter § 12034(d)), 12022.53(d)). The jury also found true multiple gun use enhancement allegations and found that all the crimes were committed with specific intent to promote criminal conduct by a street gang. (§ 186.22, subd. (b)(1) (hereafter section 186.22(b)(1)).) After the trial court found prior prison term and prior conviction allegations to be true, defendant was sentenced to an indeterminate term of 205 years to life, plus a determinate term of 17 years.
Undesignated statutory references are to the Penal Code.
Defendant appeals these convictions. His assignments of error include vindictive prosecution, improper use of a peremptory challenge, instructional error, insufficiency of the evidence, and sentencing irregularities. We shall modify the sentence and otherwise affirm the judgment.
FACTUAL BACKGROUND
Prosecution’s Case
In March 2005, defendant was a member of the Nogales Crips, a street gang in the Del Paso Heights area of Sacramento. At the time, there was ongoing retaliatory violence between the Nogales Crips and its archrivals, the Del Paso Heights Bloods and Elm Street Bloods. A Crip named Shepard Scott had been killed, and Blood member Anthony Weaver was believed to have been responsible for the killing. On two occasions prior to the subject shooting, Weaver had been the target of unsuccessful assassination attempts.
The Elm Street Bloods are a subset of the Del Paso Heights Bloods street gang. The Nogales Crips are a subset of the Crips street gang. For convenience, we sometimes refer to the subset gangs generically as “Crips” or “Bloods.”
Around 1:00 p.m. on March 26, 2005, Weaver, Corey Yerger, Yerger’s uncle Andrea Wingfield, and others were hanging out in the garage of Weaver’s house on Fell Street in Sacramento.
Wingfield, a man, testified that his first name was “Andrea” but that he was sometimes called Anthony.
Except for Wingfield, everyone in the garage was a Blood gang member. Wingfield was standing by the open garage door; other men were shooting dice; Yerger was in the driveway, eating barbecued ribs.
A white, “beat up” Mercedes pulled around the corner and turned onto Fell Street. Someone in the garage yelled, “Here come the Crips” and everyone scattered. As the Mercedes drove by, defendant fired several shots at the garage from the front passenger seat. Yerger yelled that he was “hit” and blood started gushing from his neck. Weaver was shot in the arm. As a result of the shooting, Yerger was paralyzed from the waist down.
There was evidence that a Cadillac carrying two young men pulled out of the Fell Street house immediately after the shooting and started chasing the Mercedes, precipitating a furious gun battle between the occupants of the two cars. Defendant’s fingerprints were found on the Mercedes.
After being initially called to the scene of the Fell Street shooting, Sacramento Police Officer Filmore Graham was rerouted by dispatch to a house on Cypress Street. There he located defendant, who was holding his hand over his bleeding right eye. Defendant refused to give any information to Graham or tell him how he was injured.
A gang expert testified that at the time of the shootings, defendant was a validated member of the Nogales Crips, whose rivals were the Del Paso and Elm Street Bloods. The expert opined that Blood member Weaver was the target of the Fell Street shooting, since he was believed to have been responsible for the assassination of noted Crip Shepard Scott. An attempt to kill Weaver at a gas station three days earlier had gone awry. The expert stated his opinion that the shooting was in retaliation for the killing of Scott and was done to benefit and promote the Crips gang.
Defense
Deric Tennessee, a former Blood gang member, testified that he was in the garage at the time of the Fell Street shooting. When the Mercedes drove by “all hell broke loose.” Tennessee had seen someone in the garage with a gun in his pants but he did not know where the shots were coming from. Tennessee saw Yerger with a gunshot wound to the side of his neck. It was Tennessee’s opinion, based on his observations and having been shot himself, that the bullet that caused Yerger’s neck wound could not have been fired from the street.
Defendant took the stand and admitted that on the day of the shooting he was associated with the Nogales Crips. He also admitted that Shepard Scott had been a close friend and that he had heard the rumor that Scott had been murdered at the hands of the Bloods.
Defendant also admitted that he was in the front passenger seat of the Mercedes that drove by the Fell Street garage. However, he maintained the purpose of the trip was not to shoot anybody, but to pick up some marijuana.
Defendant testified that, as the Mercedes drove by the Fell Street house, he saw people scattering in the front yard and heard gunshots. His friend “Boo,” who was in the back seat said, “those dudes is tripping,” which defendant understood to mean the “dudes” were shooting at their car. None of the shots hit the Mercedes.
According to defendant, the Mercedes kept driving to escape the gunfire directed at it. Two men from the house got into a Cadillac and began chasing the Mercedes. The Cadillac eventually pulled in front of the Mercedes and several shots were fired at them. Defendant was hit twice. Boo pulled out a gun and fired back in retaliation. Defendant denied harboring any animosity towards Weaver, Yerger or Wingfield.
DISCUSSION
I. Vindictive Prosecution
In an elaborately constructed argument, defendant claims that the entire judgment should be reversed because the prosecution added new and more serious charges after defendant exercised his right to self-representation under Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta). The argument is predicated on the fact that the original complaint charged him with attempted murder, accompanied by gun and gang enhancement allegations. Two years later, promptly after the trial court granted defendant’s motion to represent himself, the prosecutor amended the information, adding a premeditation and deliberation allegation to the murder charges and adding a fourth count of discharging a firearm from a motor vehicle (§ 12034(d)). Enlisting his own hearsay remark at a Marsden hearing about what his attorney said the prosecutor would do if he did not waive time, defendant accuses the prosecutor of filing the additional charges for the sinister purpose of punishing him for representing himself.
People v. Marsden (1970) 2 Cal.3d 118.
Defendant’s argument has been forfeited because he made no objection to the additional charges, nor did he ever move to dismiss them on grounds of vindictive prosecution. (People v. Maury (2003) 30 Cal.4th 342, 439; People v. Edwards (1991) 54 Cal.3d 787, 827.) The record shows that, at the time the amended information was offered, defendant was asked if he had any objection and he replied, “No, sir.” Neither defendant nor his subsequently appointed counsel ever moved to dismiss the added charges for the reasons he now asserts.
The Faretta motion was granted on May 11, 2007. Two months later, defendant changed his mind about representing himself and the court appointed counsel for him. Attorney Laurance Smith represented defendant during the trial.
Defendant’s claim of vindictive prosecution may not be raised for the first time on appeal. (People v. Lucas (1995) 12 Cal.4th 415, 477, citing People v. Edwards, supra, 54 Cal.3d at p. 827.)
II. Batson/Wheeler Error
Defendant argues the trial court erred in denying his motion for mistrial based on the prosecutor’s use of a peremptory challenge to excuse an African-American juror. (See Batson v. Kentucky (1986) 476 U.S. 79, 89 [90 L.Ed.2d 69, 83] (Batson) and People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler).) We disagree.
A. Procedural Background
During voir dire, prospective juror Ms. W., a female African-American, was seated. She stated that her ex-boss was a police officer and that she was a union representative for state workers. Defense counsel asked her if, after the case was concluded, she had a reasonable doubt about defendant’s guilt, could she vote not guilty. Ms. W. replied, “I would-I would-if I had doubt, I can’t make a decision, I guess, if that answers your question. If I had doubt about something, then I don’t feel I could make a firm decision about that.” The prosecutor then questioned her about circumstantial evidence. After explaining that both direct and circumstantial evidence were “equal under the eye of the law to prove a point,” the prosecutor asked, “Is that okay with you in your mind when you’re judging a criminal case, that those-direct and circumstant[ial] evidence-are going to be equally strong?” Ms. W. answered, “I think they are both important. I would think one would be-because it depends on what is stated as hearsay, if it is as strong as direct. I think they are both highly important, but I think one can be stronger than the other.” The prosecutor then asked, “Based on facts?” to which Ms. W. replied, “Or not facts.” (Italics added.)
After passing for cause, the prosecutor exercised her 13th peremptory challenge to excuse Ms. W.
Defense counsel then “mov[ed] the Court for a mistrial under [People v. Wheeler], and on that basis of the strike against Juror [Ms. W.], who was the last People’s peremptory challenge.” This precipitated the following discussion out of the presence of the venire:
“MR. SMITH [Defense Counsel]: Ms. [W.] is African-American, as is the defendant. I could see nothing in her responses that would indicate that she was biased against the prosecution. She doesn’t-as frequently is the case with African-Americans, have family members who have been defendants or in prison or any of that stuff. [¶] It is true that I have excused one African-American who was the-I forget the name off the bat, but the lady who was the wife of a police officer.
“THE COURT: Actually, two.
“MR. SMITH: But I can’t think of a nonracial reason for having excused Ms. [W.], so I make that motion.
“THE COURT: Well, the first step here is make a prima facie case of exclusion. It used to be systematic exclusion. I think now the courts simply-even the first use of the improper peremptory challenges is sufficient for the making of a prima facie case; in other words, somebody is being excluded because they are a member of a cognizable group. [¶] I guess I’m having difficulty that a prima facie case has been made; however, I’m going to allow the People, if they so wish, to state their reasons as to why they exercised the challenge, as if the Court did find [a] prima facie case, so the Court can analyze that, in case I’m incorrect in simply saying I can find no reason, other than race to exercise the peremptory being sufficient for the prima facie case. [¶] Ms. Brown.
“Ms. BROWN [Prosecutor]: Certainly. The first one, based just upon her questionnaire is that she is a union representative, and my experience is that union representatives, they tend to be on the opposite side of the establishment or anti-establishment. [¶] Secondly, on her questionnaire, she indicated that she does have a friend or relative who was arrested for arson, two felony counts of arson. That was the other thing, and there is not another juror who [is] on the panel right now in the box that has the same serious type of felony conviction or arrest in their background with people they know. [¶] But, moreover, it was her answers to Mr. Smith’s questions about reasonable doubt and then my question about circumstantial and direct evidence. And her responses to those two questions cemented my concern about the employment issue of union representation and the history of having a relationship with someone who has been arrested for felony arson charges.”
Although defense counsel agreed with the prosecutor that Ms. W. had “a little bit of trouble” with the concepts of reasonable doubt and circumstantial evidence, he still thought she did “well enough,” and also suggested Ms. W. “should [not] be penalized for being affiliated with organized labor.”
The court then ruled: “Well, I do find that the explanations given by the district attorney as to the exercise of the peremptory challenge are neutral, and they are not race based. So, therefore, respectfully, I’m going to deny your Wheeler motion.”
B. Analysis
1. Law.
“Both the state and federal Constitutions prohibit the use of peremptory challenges to remove prospective jurors based solely on group bias.” (People v. Thompson (2010) 49 Cal.4th 79, 107 (Thompson).) “[A]n objection on the basis of Wheeler also preserves claims that may be made under Batson.”(People v. Salcido (2008) 44 Cal.4th 93, 135-136, fn. 7.)
“The law applicable to Batson/Wheeler claims is now familiar. ‘First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citation.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide... whether the opponent of the strike has proved purposeful racial discrimination.”’” (Thompson, supra, 49 Cal.4th at p. 107.)
“‘Review of a trial court’s denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions.’ [Citation.] ‘We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses.’ [Citation.] As long as the court makes ‘a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal.’” (Thompson, supra, 49 Cal.4th at p. 107.)
2. No prima facie case.
The first stage of Batson/Wheeler review is to determine whether the defendant has made a prima facie case of discrimination based on group bias. As the California Supreme Court made clear in People v. Taylor (2010) 48 Cal.4th 574 (Taylor), we do not infer from the mere fact that the trial court invited the prosecutor to state reasons for the challenge that the court necessarily found a prima facie case of intentional discrimination had been made. Instead, we examine the totality of the circumstances, considering all of the court’s remarks in proper context. (Id. at pp. 612-613, citing People v. Hayes (1990) 52 Cal.3d 577, 605, fn. 2.)
Here, although Judge Garcia’s remarks are somewhat garbled in the transcript, we conclude he did not make an implicit finding of a prima facie case. The judge stated that he was “having difficulty that a prima facie case has been made,” but invited the prosecutor to state her reasons “in case I’m incorrect.” He also invited the People to state reasons “if they so wish,” so “the Court can analyze that.” (Italics added.) Such language is inconsistent with a ruling that a prima facie case had been established. We therefore conclude the trial court found no prima facie case and invited the prosecutor to state reasons as a precautionary measure to preserve the appellate record. (See Taylor, supra, 48 Cal.4th at p. 613 [no implicit finding where judge invited prosecutor to state reasons in order to “‘complet[e] the record on appeal’”].)
When the trial court finds no prima facie case has been made, but still invites the prosecution to justify its challenges for the record, the question whether a prima facie case has been made is not moot. (People v. Howard (2008) 42 Cal.4th 1000, 1018.) “Under such circumstances, we sustain the trial court if, upon independently reviewing the record, we conclude the totality of the relevant facts does not give rise to an inference of discriminatory purpose.” (Ibid.)
Such is the case here. Defense counsel offered no evidence to warrant an inference that the prosecution was systematically excluding African-Americans because of their race. All he did was point out that Ms. W. was Black and offer his opinion that he saw no reason why she would not make a fine juror.
The exclusion of a single prospective African-American juror cannot, by itself, warrant an inference of purposeful exclusion. As the California Supreme Court has observed, “‘“the small absolute size of this sample makes drawing an inference of discrimination from this fact alone impossible.”’” (Taylor, supra, 48 Cal.4th at pp. 614-615, quoting People v. Bonilla (2007) 41 Cal.4th 313, 343.)
Defendant cites no evidence from which a reasonable inference could be drawn that the prosecutor was purposefully challenging jurors based on race. We note that defense counsel himself used peremptory challenges on two African-American jurors. Nor was this a racially charged case, since both defendant and the victims were African-American.
Defendant’s attempts to persuade us that the prosecutor’s reasons for excluding Ms. W. were pretextual are pointless, since an inquiry into the legitimacy of reasons is not triggered unless a prima facie case is first established. (Johnson v. California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129, 138-139].) Since no prima facie case was shown here, no parsing of the prosecutor’s reasons is necessary.
3. No showing of discrimination.
Even if we determined there was a prima facie case and proceeded to the next stage of the inquiry, we would uphold the court’s finding of no intentional discrimination. As shown by the exchange we have quoted above, Ms. W. gave confused, muddled responses when questioned about reasonable doubt and the contrast between direct and circumstantial evidence. Her position as a union representative posed a risk of anti-establishment bias. Most significantly, the fact that Ms. W. had a relative or friend who had been charged with felony arson was an indubitably sound reason for excusing her. (See People v. Gray (2005) 37 Cal.4th 168, 192 [prosecutorial challenge based on prospective juror who had family members facing criminal charges was a “plausible and credible” reason for disqualification].) Indeed, we find it ironic that defense counsel had no problem excluding an African-American juror because she was the wife of a police officer, yet cast aspersions of racial prejudice against the prosecutor for challenging an African-American who had a friend or relative who was a criminal defendant. Because the prosecutor articulated legitimate, race-neutral reasons for challenging Ms. W., no Batson/Wheeler violation was shown.
Defendant’s argument that the prosecutor improperly discriminated against “organized labor” does not merit an extended response. Defendant cites no authority holding that labor union members constitute a cognizable minority group so as to trigger a Batson/Wheeler analysis, and even if they did, the disqualification of a single prospective juror on that basis would be insufficient as a matter of law to show a purposeful pattern of discrimination.
III. Misstatement of the Reasonable Doubt Standard
Under a single heading, defendant argues that the judgment should be reversed because the trial court and the prosecutor made statements misinforming the jury about the standard of proof beyond a reasonable doubt. Counsel’s presentation conflates two distinct arguments, prosecutorial misconduct and misinstruction by the court, and blends them together. We shall discuss each one individually.
We remind counsel that a failure to present each argument under a separate heading may result in a forfeiture of that argument. (See California Rules of Court, rule 8.204(a)(1)(B); Teachers’ Retirement Bd. v. Genest (2007) 154 Cal.App.4th 1012, 1038, fn. 6.) We nevertheless reach the arguments so as not to penalize defendant for counsel’s procedural misstep.
A. Misinstruction by the Trial Court
During voir dire of prospective jurors, Judge Garcia gave an extensive and indisputably correct recitation of the reasonable doubt standard. When he discussed the standard a second time, he made the following comments.
“Now, the other side of that coin is that if the district attorney proves each element of the charge or allegation to you beyond a reasonable doubt, you must return a verdict of guilty. You may not substitute in your own standard of proof. [¶] For instance, we hear a lot in the movies, the shadow of a doubt. It has no legal meaning. I don’t know what it means, but assume it was your standard, you could not use it. [¶] Also, the People don’t have to prove the case beyond all reasonable doubt. They don’t have to prove beyond all reasonable doubt. If they prove it beyond a reasonable doubt, a reasonable doubt, you must return a verdict of guilty as to the charge or true as to the allegation.(Italics added.)
Defendant claims the italicized language misstated the law, since there is no functional difference between “all reasonable doubt” and “a reasonable doubt.”
It is probable that the judge misspoke, intending to say that the People did not need to prove their case beyond “all possible doubt,” rather than “all reasonable doubt.” (Italics added.) In any event, such a minor slip-up is no cause for reversal.
CALCRIM No. 220 states: “The evidence need not eliminate “all possible doubt because everything in life is open to some possible or imaginary doubt.” (Italics added.)
Instructions to the jury are never viewed in isolation. “‘It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.’” (People v. Bolin (1998) 18 Cal.4th 297, 328, quoting People v. Burgener (1986) 41 Cal.3d 505, 538, overruled on a different ground in People v. Reyes (1998) 19 Cal.4th 743, 753.) “[A] single instruction is not to be viewed in ‘artificial isolation’; instead, it must be evaluated ‘in the context of the overall charge.’” (People v. Espinoza (1992) 3 Cal.4th 806, 823-824 (Espinoza), quoting Cupp v. Naughten (1973) 414 U.S. 141, 146-147 [38 L.Ed.2d 368, 373-374].)
In Espinoza the trial judge, just before sending the jury to deliberate, erroneously indicated that it had to be convinced beyond a reasonable doubt that the defendant was not guilty of the charged offense before considering a lesser included offense. (Espinoza, supra,3 Cal.4th at p. 823.) Since the jury had twice been correctly instructed about the burden of proof, the California Supreme Court held the jury could not have been misled by “the trial court’s brief and apparently inadvertent misstatement.” (Id. at p. 824.)
Similarly here, the court’s inadvertent misstatements were not prejudicial because (1) they were made during voir dire and not during the trial; (2) during the same monologue, the judge correctly told the jury that the quantum of proof need not “eliminate all possible doubt because everything in life is open to some possible or imaginary doubt”; and (3) the jury was given complete and correct instructions about the burden of proof before deliberating. (Italics added.) Under the circumstances, we find no reasonable possibility the jury could have been misled by the court’s stray, inadvertent misstatements concerning reasonable doubt.
Defendant’s claim that the trial court’s verbal blooper constituted “Cage” or structural error requiring automatic reversal (Cage v. Louisiana (1990) 498 U.S. 39 [112 L.Ed.2d 339]) is spurious. In Cage, the United States Supreme Court determined Louisiana’s standard instruction on reasonable doubt was structural error because it allowed a finding of guilt based on a degree of proof below that required by the due process clause of the Fourteenth Amendment. (Cage,at p. 42; see also In re Winship (1970) 397 U.S. 358, 364 [25 L.Ed.2d 368, 375].) Later, the high court explained that “structural error” is a “‘defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself,’” and has been found only in a “very limited class of cases.” (Johnson v. United States (1997) 520 U.S. 461, 468-469 [137 L.Ed.2d 718, 728].)
B. Prosecutorial Misconduct
Defendant takes issue with three remarks by the prosecutor, Ms. Brown, which are italicized below. The first was made during voir dire of prospective Juror No. 8:
“Ms. BROWN: Now, are you the type of person who has to-before you can make a decision, do you have to know the answer to every single question in the puzzle?
“[JUROR NO. 8]: No.
“Ms. BROWN: In other words, can you look at the puzzle and say, all right, based on the pieces that I have of this puzzle, beyond a reasonable doubt I know what the picture is. But there might be a piece missing up in the right corner or there might be a piece missing down in the left corner. You still know by looking at it beyond a reasonable doubt what that picture is. Are you okay with making a decision on that, or do you need to have those two little pieces?
“[JUROR NO. 8]: I’m okay without the two pieces.” (Italics added.)
During her closing argument, Ms. Brown made the following remarks:
“[MS. BROWN]: During voir dire, we talk about a puzzle. You may have a piece missing here, and you may have a piece missing there, but when you look at that picture, you know what it is. It is a human standard....
“It is certainly a high standard, and it should be, shouldn’t it? We should all agree ‘beyond a reasonable doubt’ is a high standard, and it is only right that I meet that standard in this case, in any criminal case. But when you look to what an abiding conviction is, I want you to just think about this, perhaps.
“When you walked into this courtroom, you didn’t know [defendant]. You didn’t know any of the facts in this case, and you all agreed that if you were asked to vote right then, you would have to vote not guilty. So at the end of this case when you go into deliberation, if you say, I know he did it, I know he’s guilty, that has to be based on the evidence that you heard in this case. You didn’t know anything about him before you came in.
“If you know it in your head, you know it in your heart, and you know it in your gut, then you know it. It’s beyond a reasonable doubt, and it’s based on the evidence in this case.
It couldn’t be based on anything else.” (Italics added.)
Defendant contends the prosecutor’s “puzzle” comments “minimized the proof that is required for a conviction,” and that she “trivialized the duty of jurors to analyze evidence carefully” by urging the jurors to follow their “heart” and their “gut.”
These claims are forfeited. A defendant “‘“may not complain on appeal of prosecutorial misconduct unless in a timely fashion-and on the same ground-the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.”’” (People v. McDermott (2002) 28 Cal.4th 946, 1001, quoting People v. Hill (1998) 17 Cal.4th 800, 820 .) Here, defense counsel remained silent in the face of the prosecutor’s remarks and defendant makes no attempt to show that they were so egregious that no admonition could have cured the harm. Consequently, these arguments are not cognizable.
IV. Lesser Included Instruction on Voluntary Manslaughter
Defendant claims the trial court erred in failing, sua sponte, to instruct the jury on voluntary manslaughter based on the doctrine of imperfect self-defense, as a lesser offense to the murder charge. We disagree.
“‘The trial court has a sua sponte duty to instruct on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present and there is evidence that would justify a conviction of such a lesser offense.’” (People v. Bradford (1997) 14 Cal.4th 1005, 1055 .) “[E]ven on request, a trial judge has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction.” (People v. Cunningham (2001) 25 Cal.4th 926, 1008.)
“To warrant such an instruction, there must be substantial evidence of the lesser included offense, that is, ‘evidence from which a rational trier of fact could find beyond a reasonable doubt’ that the defendant committed the lesser offense.” (People v. Mendoza (2000) 24 Cal.4th 130, 174; see People v. Barton (1995) 12 Cal.4th 186, 195.)
In this case, defendant testified that neither he nor his companions discharged weapons as they passed by the Fell Street garage, although he asserted that the occupants of the garage fired at his car as it drove by. Thus, the hypothesis that defendant fired shots at the garage under a perceived need to defend himself finds no support in the evidence. Because there was no testimony or evidence that defendant fired the shots under a perceived need to defend himself, there was no basis for the instruction and the trial court did not err by failing to give it.
V. Sufficiency of the Evidence to Support the Section 246 Conviction
Defendant claims there was insufficient evidence to support his conviction for shooting at an inhabited dwelling within the meaning of section 246, because the People failed to prove that the garage was part of an occupied dwelling.
As the court held in People v. Adams (1982) 137 Cal.App.3d 346, 354–355, “Section 246 by its express language does not limit itself to an inhabited dwelling house, but rather includes any ‘occupied building.’ The term ‘building’ is a generic term meaning any edifice or structure built by man. [Citation.] A ‘building’ is ‘[a] structure... [e]nclosing a space within its walls....’ [Citation.] The term ‘building’ would include such structures as outhouses, barns, garages, and an occupied building includes areas controlled by the occupants, such as a garage.” Thus, as defendant concedes, a person who shoots into “an attached garage” violates section 246. (Adams, at p. 355.) Defendant asserts, however, there was no evidence that the Fell Street garage was attached to the house.
As the People point out, the jury was instructed that “[a] house includes any garage that is attached to the house and functionally connected with it.” (See CALCRIM No. 965.) Photographs of the Fell Street house “with white garage door on right” were introduced into evidence without objection and defense counsel never argued to the jury that the garage was not attached to the house. Absent an indication to the contrary, we may presume these photos filled the evidentiary lacuna of which defendant complains.
In his reply brief, defendant concedes the photographs were in evidence, but maintains that because the People failed to include them as part of the record, his claim of insufficient evidence should be credited.
Defendant has the burdens backwards. A respondent has no burden to produce evidence to rebut a claim of insufficiency. Judgments are presumed correct in criminal as well as civil cases, and it is the appellant’s burden to show error by an adequate record. (People v. Carter (2010) 182 Cal.App.4th 522, 531, fn. 6; Osgood v. Landon (2005) 127 Cal.App.4th 425, 435-436.)“‘One aspect of that burden requires that the appellant develop the fullest possible evidentiary record before seeking review.’” (Villano v. Waterman Convalescent Hospital, Inc. (2010) 181 Cal.App.4th 1189, 1200.) A judgment is conclusively presumed correct as to all matters on which the record is silent. (Baker v. Children’s Hospital Medical Center (1989) 209 Cal.App.3d 1057, 1060.) Because defendant did not produce the photographic exhibits as part of the record on appeal, we must presume they would support the judgment. Hence, defendant’s substantial evidence argument fails.
VI. Shackles
During a break in closing argument defense counsel, Attorney Smith, advised the court that defendant complained that some of the jurors might have seen him in shackles. The court offered to give the jurors a special instruction telling them to disregard the shackles, if in fact, they saw them. Attorney Smith responded, “My inclination is to not draw attention to it, and so that’s how I’m going to leave it, unless [defendant] has strong feelings to the contrary.”
The parties have not cited any prior reference in the record to the requirement that defendant wear shackles.
When the prosecutor finished her initial summation, Judge Garcia gave Attorney Smith a copy of CALCRIM No. 204 and offered to give it, or a modified version of it.
CALCRIM No. 204 states, “The fact that physical restraints have been placed on [the defendant] is not evidence. Do not speculate about the reason. You must completely disregard this circumstance in deciding the issues in this case. Do not consider it for any purpose or discuss it during your deliberations.”
At the conclusion of closing arguments, defendant engaged in a disruptive outburst and was escorted from the courtroom. Judge Garcia promptly gave the jury the following admonition:
“The record should reflect that there was a glass of water on the table. Mr. Robinson pounded the table. Mr. Robinson has also knocked over a bookcase that was on top of the Court’s desk onto the floor as he was leaving.
“Now, ladies and gentlemen, Mr. Robinson is not now present. I will give you the last instruction and, before I do so, I’m going to instruct you to ignore what just took place. That is not evidence of guilt. Remember, as we went along about anything that you may have seen? It’s obvious now that Mr. Robinson is in custody to you, and, again, that’s not evidence of his guilt. You need to ignore that.
“So anything that you may have seen that would indicate to you that he is in custody or being housed at the jail, again, ignore all of that.... It is not evidence of his guilt. You need to make your decision based upon the evidence, dispassionately, and based upon the law. Okay? Not upon this-this particular activity that was just-took place or anything else.”
After the court finished instructing the jury, Attorney Smith acknowledged that he had made the tactical decision not to have the jury instructed with CALCRIM No. 204 regarding physical restraints. However, Smith felt “constrained at this point to move for a mistrial,” based upon his client’s outburst in the courtroom. The court denied the motion.
Based on this sequence of events, defendant seeks reversal because he was shackled without just cause and the jury was not given a sufficient admonition.
The argument suffers from multiple fatal flaws. First, for the reasons just elucidated in the previous section, defendant’s failure to produce a record of the proceedings that led to the shackling precludes appellate review of the issue. In the absence of an adequate record, we must uphold the trial court’s decision to use restraints.
Second, defendant has forfeited the issue because he failed to object to the shackles during trial. (People v. Tuilaepa (1992) 4 Cal.4th 569, 583 [failure to object at trial to the use of restraints forfeits the issue on appeal].)
In any event, defendant graphically justified the court’s decision at the end of the trial by his explosive outburst in the courtroom, which required his removal.
Third, the California Supreme Court has “consistently held that courtroom shackling, even if error, was harmless if there is no evidence that the jury saw the restraints, or that the shackles impaired or prejudiced the defendant’s right to testify or participate in his defense.” (People v. Anderson (2001) 25 Cal.4th 543, 596.) That is the case here.
Fourth, defendant cannot complain of the court’s failure to admonish the jury against drawing adverse inferences from the use of shackles where, as here, the trial court offered to give such an instruction but counsel, for tactical reasons, declined the offer. (People v. Wader (1993) 5 Cal.4th 610, 657-658.)
For all of these reasons, we reject defendant’s assignments of error regarding the use of shackles.
VII. End of Trial Faretta Motion
After defendant was found guilty of all charges, defendant waived his right to jury trial on the priors and a bench trial was scheduled.
On the day of the bench trial, defendant moved to substitute himself as his own attorney in place of Attorney Smith. (See Faretta, supra, 422 U.S. 806 [45 L.Ed.2d 562].) Judge Garcia quickly observed that defendant had once previously represented himself, that he had made multiple Marsden motions and was now on his fourth attorney. After noting that he retained discretion to deny a postverdict motion for self-representation as untimely, and finding that there was a “high likelihood” that defendant was simply orchestrating delay, Judge Garcia denied the Faretta motion. Defendant replied that he wanted to “put on the record” that he was requesting self-representation for the purpose of making a motion for new trial and then asked for a continuance “for my family to have enough time to get me a private attorney.”
The court replied that it would continue sentencing for one week due to perceived errors in the probation report. “During this one-week period of time, if, in fact, your family does hire an attorney to represent you on the remainder of the case, I will certainly entertain that motion one week from today to allow that attorney to step in, as long as they are ready to go or there is good cause shown as to why there should be a motion for new trial.” Attorney Smith added that if he were to be contacted by successor counsel, “I would certainly give that person my full cooperation.”
A week later, defendant appeared at sentencing with Attorney Smith, who answered “no” when asked whether there was any legal cause why sentence should not be pronounced.
Defendant now claims the trial court’s denial of his Faretta motion was an abuse of discretion and that his ability to make a motion for new trial was impeded. Neither claim is meritorious.
A defendant who makes a Faretta motion after the commencement of trial does not enjoy an absolute, constitutional right to self-representation. (People v. Rivers (1993) 20 Cal.App.4th 1040, 1050.) Such requests are committed to the sound discretion of the trial court. (People v. Doolin (2009) 45 Cal.4th 390, 453.)
Judge Garcia did not abuse his discretion in denying defendant’s motion. As he correctly observed, defendant had initially been granted the right to represent himself, but changed his mind and proceeded to trial with counsel. During trial, he made five Marsden motions and was on his fourth attorney. Defendant did not pursue the Faretta motion after Judge Garcia remarked that he had shown a consistent pattern of orchestrating delay. Instead, he immediately switched gears and asked for a continuance to find counsel who would make a motion for new trial. Although the court did continue the matter for one week, defendant did nothing in the interim and did not object when sentence was pronounced. Defendant’s extensive history of obstructionism, his penchant for creating delay and demonstrated willingness to treat the judicial system as his personal playground amply justified denial of the Faretta motion.
We also disagree with defendant’s claim that the court “improperly impede[d]” his ability to make a motion for new trial through new counsel. As the cited exchange indicates, defendant was granted a week to find another attorney and Attorney Smith pledged his full cooperation with any new counsel who might be retained. Judge Garcia also expressed his willingness to entertain any motion for new trial that would be brought. Defendant took no action during the week-long postponement and appeared at sentencing without objection. No impairment of his rights appears in the record.
VIII. Sentencing
As defendant correctly notes, the trial court sentenced him to an aggregate indeterminate term of 205 years to life, plus a determinate term of 17 years. The minimum term for the indeterminate sentence was comprised of 55 years to life on count one (attempted premeditated murder of Yerger); 55 years to life on count two (attempted premeditated murder of Weaver); and 95 years to life for count three (shooting at an inhabited dwelling). The determinate term was arrived at by adding the three five-year prior serious felony enhancements (§ 667, subd. (a)) and the two one-year prior prison term enhancements (§ 667.5, subd. (b)).
An indeterminate life term on count four (shooting from a motor vehicle) was stayed pursuant to section 654.
Defendant complains of four sentencing errors committed by the trial court. We discuss each one separately.
A. Consecutive Versus Concurrent Sentences
Defendant requests remand for resentencing on the two attempted murder charges, because he claims the record “suggests” the court lacked awareness of its ability to impose these terms concurrently rather than consecutively.
It is well established that in the absence of an affirmative indication in the record that the trial court believed it lacked discretion to impose concurrent sentences, it will be presumed on appeal that the court understood the scope of its discretion. Where the record is silent, we must presume the trial court understood its discretion and sentenced defendant accordingly. (Evid. Code, § 664; People v. Fuhrman (1997) 16 Cal.4th 930, 945-946; People v. Mosley (1997) 53 Cal.App.4th 489, 496-497.)
Defendant cites nothing in the record indicating that the trial court misunderstood the scope of its discretion. Instead, he points only to the absence of any statement by either the judge or counsel as to whether the attempted murder sentences should run consecutively or currently. Because we cannot presume error from silence, the point must be rejected.
B. The Sentence for Shooting at an Inhabited Dwelling
Defendant contends the trial court miscalculated the sentence for shooting at an inhabited dwelling (§ 246). For the reasons that follow, we agree.
The trial court correctly determined that defendant was subject to an indeterminate life sentence for the section 246 violation. (§ 186.22, subd. (b)(4) (hereafter section 186.22(b)(4)).) It is the minimum term of that life sentence that is in dispute.
Section 186.22(b)(4) changes the term for a gang-related section 246 conviction from the normal determinate “triad” to an indeterminate life sentence. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900, fn. 6.) The minimum term of that life sentence is described in section 186.22(b)(4):
“[(b)](4) Any person who is convicted of a felony enumerated in this paragraph 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, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of:
“(A) The 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 3046, if the felony is any of the offenses enumerated in subparagraph (B) or (C) of this paragraph.
“(B) Imprisonment in the state prison for 15 years, if the felony is a home invasion robbery, in violation of subparagraph (A) of paragraph (1) of subdivision (a) of Section 213; carjacking, as defined in Section 215; a felony violation of Section 246 ; or a violation of Section 12022.55.” (§ 186.22(b)(4)(A), (B), italics & boldface added.)
Since the life sentence under section 186.22(b)(4), subpart (A) will yield a term greater than the 15-year-to-life term specified in subdivision (b)(4)(B), it is subdivision (b)(4)(A) that governs.
The parties agree that we start with the initial determinate sentence, then add applicable enhancements. The trial court chose the midterm of five years. However, because defendant was a “second striker” (§ 667, subd. (e)), the court doubled that to 10 years. The court then added the mandatory consecutive 25-year enhancement for the firearm discharge/great bodily injury finding (§ 12022.53(d)-gun enhancement), bringing the total up to 35 years. The court doubled the resulting term again as a second strike, which brought the total to 70 years. As a final flourish, the court imposed the gun enhancement a second time, arriving at a total minimum term of 95 years to life. This was overkill.
First, the trial court could not properly use the gun enhancement twice. (People v. Sok (2010) 181 Cal.App.4th 88, 97 (Sok).) Section 186.22(b)(4) is an alternate penalty provision that combines the term of the underlying felony with applicable enhancements to establish the minimum term. (Sok, at p. 97, citing People v. Montes (2003) 31 Cal.4th 350, 361; see also People v. Briceno (2004) 34 Cal.4th 451, 460, fn. 7.) Since the 25-year gun enhancement was already used as a basis for establishing the minimum term, it cannot be used a second time to add more time to the sentence. (Sok, supra, at p. 97; see also People v. Jenkins (1995) 10 Cal.4th 234, 253 [five-year enhancement under § 667, subd. (a) cannot be used both to establish minimum term and be imposed consecutively to the life sentence].)
People v. Dotson (1997) 16 Cal.4th 547, cited by the People to support the court’s double usage of the gun enhancement, does not persuade us otherwise. There, the trial court permitted separate enhancements to be added onto a third striker’s life sentence even where they were also used to calculate the minimum term. However, the statute the court was interpreting in Dotson, section 1170.12, subdivision (c) “expressly state[d] that the indeterminate life term is imposed ‘in addition to any other enhancements or punishment provisions which may apply.’” (Dotson,at pp. 559-560, italics added.) As the court noted in Sok, no similar language appears in section 186.22(b)(4). (Sok, supra, 181 Cal.App.4th at p. 98, fn. 9.)
Finally, while defendant’s minimum life term for his gang-related life sentence was subject to sentence-doubling as a second strike under section 667, subdivision (e)(1) (People v. Jefferson (1999) 21 Cal.4th 86, 101), as the People concede, the court should not have doubled it twice-first by doubling the five-year initial base term, then by doubling the 35-year term arrived at after the gun enhancement was added on.
The proper term for the section 246 conviction was 60 years to life: the five-year normal midterm plus 25 years for the gun enhancement (30 years), doubled under the second strike law (§ 667, subd. (e)(1)) (or 60 years to life, rather than 95 years to life). We shall order the correction.
C. The Section 12034 Conviction
The jury found defendant guilty of count four, willfully and maliciously discharging a firearm from a motor vehicle (§ 12034(d)), with special findings that he personally discharged a firearm causing great bodily injury (§ 12022.53(d)) and committed the crime for the benefit of a street gang (§ 186.22(b)(1)).
Under the apparent belief this crime merited an indeterminate life sentence owing to the gang enhancement (§ 186.22(b)(4)), the trial court sentenced him to 83 years to life, although it stayed the sentence. As defendant points out and the People concede, a conviction under section 12034 does not trigger the life sentence provided for in section 186.22(b)(4), because the offense of shooting from a motor vehicle is not one of the felonies “enumerated in this paragraph” (§ 186.22(b)(4)). Instead, the gang enhancement of section 186.22(b)(1) applies.
Section 12034(d) provides that the violation of that section is punishable as a felony. Since no specific term is specified in the section itself, the triad choice is “16 months, or two or three years” (§ 18). The trial court stated its intent to apply the middle term, or two years, so we use that as the starting point. The two-year term is doubled as a second strike (§ 667, subd. (e)(1)). Ten years must be added to this term because it was a “violent felony” committed to benefit a street gang (§§ 186.22(b)(1)(C), 667.5, subd. (c)); and five years added for the prior serious felony conviction (§ 667, subd. (a)). Thus, defendant’s total determinate term was 19 years. Owing to the enhancement for personal discharge/great bodily injury, defendant was also subject to a mandatory consecutive term of 25 years to life. (§ 12022.53(d).) Thus the proper sentence on count four should have been 25 years to life, plus 19 years. We shall make that correction. Because the trial court stayed the sentence on count four pursuant to section 654, we shall do so as well.
D. Additional Application of Section 654
Defendant claims the section 246 count for shooting at an inhabited dwelling must be stayed pursuant to section 654, since that crime and the two attempted murder offenses were all committed as part of the same indivisible course of conduct. He is wrong.
Section 654, subdivision (a) provides that “[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” The protections of section 654 have been extended to cases in which several offenses are committed during a course of conduct deemed to be indivisible in time. (People v. Palacios (2007) 41 Cal.4th 720, 727.)
However, the judicially created “multiple victim” exception to section 654 allows separate punishment for each crime of violence against a different victim, even if all crimes are part of an indivisible course of conduct with a single objective. (People v. Felix (2009) 172 Cal.App.4th 1618, 1630-1631 (Felix); see also People v. McFarland (1989) 47 Cal.3d 798, 803.)
In People v. Masters (1987) 195 Cal.App.3d 1124 the court, citing the multiple victim exception, upheld consecutive terms for assault with a deadly weapon and shooting at an occupied motor vehicle, where the defendant fired shots into an automobile containing three passengers, but injured only one of them. The court held: “The preclusion of section 654’s application does not depend upon a determination that the victims of one violent crime are entirely different from the victims of a second violent crime committed in the same course of conduct. As long as each violent crime involves at least one different victim, section 654’s prohibition against multiple punishment is not applicable.” (Masters, at p. 1128, italics added.)
Here, defendant fired multiple shots into a dwelling that injured only two people, Yerger and Weaver. Defendant’s act of shooting into the Fell Street garage was thus a violent crime that targeted victims not accounted for by the attempted murder convictions. Under such circumstances, the prohibition against multiple punishment does not apply. (Felix, supra, 172 Cal.App.4th at pp. 1630-1631.)
Defendant’s reliance on People v. Kramer (2002) 29 Cal.4th 720 is misplaced. In that case, the trial court stayed an assault count pursuant to section 654 while allowing punishment for a section 246 conviction. The latter had a longer prison term when considered in isolation, but the former had the longer term when enhancements were added. The California Supreme Court decided that, in light of a recent amendment to section 654, a sentencing court must impose punishment for the crime with the longest prison term, including the applicable enhancements. (Kramer,at pp. 723-725.) The court never considered whether the trial court properly applied section 654 in the first instance. “‘“An opinion is not authority for propositions not considered.”’” (People v. Knoller (2007) 41 Cal.4th 139, 155.)
DISPOSITION
The sentence on count three (§ 246) is modified to 60 years to life, in accordance with the formula set forth in part VIII.B. of this opinion. The stayed sentence on count four (§ 12034) is modified to 25 years to life plus 19 years, in accordance with the formula set forth in part VIII.C. of this opinion. Defendant’s total unstayed aggregate prison term is 170 years to life, plus 17 years.
The trial court shall prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. So modified, the judgment is affirmed.
We concur: BLEASE, Acting P. J. ROBIE, J.
Here, the trial court’s closing instructions to the jury were correct. It merely used the wrong adjective (“reasonable” instead of “possible”) during a preinstruction to prospective jurors. This can hardly be deemed a fundamental defect affecting the entire framework of the trial.