Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, No. SF012905A Gary T. Friedman, Judge.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
Appellant Gerardo Romero stands convicted, following a jury trial, of attempted premeditated murder in which he personally discharged a firearm (Pen. Code, §§ 187, subd. (a), 189, 664, 12022.53, subd. (c); count 1) and assault with a firearm in which he personally used a firearm (§ 245, subd. (a)(2), 12022.5, subd. (a)(1); count 2), both of which were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Following a bifurcated court trial, appellant was found to have suffered a prior juvenile adjudication under the three strikes law (§§ 667, subds. (c)-(j), 1170.12).
All statutory references are to the Penal Code unless otherwise stated.
Appellant was sentenced on count 1 to life in prison with the possibility of parole, with a minimum parole eligibility date of 30 years (15 years, pursuant to § 186.22, subd. (b)(5), doubled for the strike), plus 20 years for the firearm enhancement. He now appeals, raising various claims of error. For the reasons that follow, we will affirm.
Sentence on count 2 was stayed pursuant to section 654.
FACTS
From 1993 to 1997, Christopher Gabriel “Jug” Contreras was a member of the Wasco 13 gang, which was also known as Varrio Wasco Rifas. The gang participated in criminal activity, particularly assaults, thefts, and narcotics use and sales. Members did not like it when someone came into court and testified about the gang; they called it snitching, and it could get a person killed. Although Contreras was “jumped out” of the gang in 1997, he still knew people who were affiliated with it and socialized with a few of them.
On October 16, 2005, Contreras had an “Octoberfest” party at his house in Wasco. Ruth Loza, a longtime friend of his, was one of approximately 50 people who attended. It was a somewhat dressy affair; guests had to wear black and/or white. Wasco 13 members, including appellant (who was known to Contreras by the moniker “Sniper”), Fernando Enriquez (who went by the monikers “Whopper” and “Ghost”), Danny Torres (“Rook-E”), and Epifanio Soto (“Popeye”) crashed the party; Contreras asked them to leave because they were not dressed correctly and had not been invited. Although Contreras did not have harsh words with appellant and the others, things got out of hand, and at some point, Loza heard a gunshot in the backyard. Shortly after, members of the sheriff’s department arrived. At Contreras’s request, Deputy Fleeman told those who were not dressed correctly, including appellant and his companions, to leave.
On October 22, 2005, Loza held a belated birthday party at her residence in Wasco. The party was inside the garage, the door to which was open. There was a fire pit or smudge pot on the driveway. Some people, including Loza, were drinking.
By approximately 2:00 the next morning, the party had been going on for several hours. About eight to 10 people were still in the garage/driveway area. They were sitting in chairs, talking. Some, including Contreras and Louis Penalber, who had had a minor dispute with appellant at Contreras’s party a week before, had been drinking.
Three young Hispanic males walked past on the sidewalk and sort of stared at the partygoers. Although no one said anything to them, the three yelled, “Wasco Sur 13,” as they crossed the street, heading away from the house. When either Albert Serna or Penalber said, “yeah, whatever, just keep on walking, just keep on walking,” the three got angry, turned around, and walked back at a fast pace.
Witnesses’ memories differed as to exactly when the phrase was uttered, although Contreras, Penalber, and Loza all testified to hearing it during the incident.
Contreras came out of the garage to try to control the situation before it got out of hand. He held up his hands and told the three – two of whom he recognized as appellant and Whopper – to calm down, that they didn’t have a problem there. As Contreras approached, appellant separated from his cohorts and moved toward him. Appellant pulled a small handgun from underneath his jacket or sweater, extended his arm, and pointed the gun at Contreras’s face. Appellant then said “fuck you,” and shot Contreras from a distance of approximately five feet, grazing his right cheek. Appellant’s two companions ran, but appellant tried to chamber another round as he started toward the garage, where everyone was gathered. When the gun jammed, he also fled.
Contreras did not know the third person.
The sheriff’s department was immediately called and officers arrived quickly. Deputy Bravo, the first on scene, found Contreras calmly standing, drinking a beer and laughing, although Bravo did not believe he was intoxicated. Contreras’s cheek was still bleeding, but he told Bravo he did not need medical attention.
Bravo then asked Contreras to tell him what happened. Contreras said nothing had happened and that he would take care of it. Bravo could hear people behind Contreras, telling him to say what had happened and who it was. Somebody pleaded with Contreras to tell Bravo it was Sniper. Bravo was unable to get much information from Contreras that night; he kept walking away from Bravo as if he did not want to tell Bravo anything. Finally, about 20 minutes after Bravo arrived, Contreras said that three Hispanic males were walking by, started “dogging” those at the house, and continued walking. When they reached the intersection, one of them came running back, pulled a black .38 semiautomatic handgun, and shot at him. Contreras gave a description of the gunman.
Bravo never attempted to speak to this person.
Around this time, Deputy Heisey, who had been at the scene and then left, contacted Bravo and said he had two subjects stopped at a particular location. Bravo took Contreras and Albert Serna in his patrol car to view the individuals. During the ride, Bravo did not ask Contreras again who shot him. Contreras and Serna said the two detained individuals were not involved. Bravo then took them back to Loza’s house. He subsequently had to leave to respond to a call for assistance from another officer.
According to Contreras, he told Bravo that Sniper had shot him, although he did not say who Sniper was, as he did not know his real name. Contreras also said he could not identify the person who shot him. Contreras lied because he was in fear of retaliation for being a snitch. Contreras told Bravo that he did not want anything done and that everything would be all right.
No one from the sheriff’s department talked to Penalber or Loza that night. Loza did not come forward, as she was scared the assailants had seen her and might return. Bravo tried telephoning Contreras several times the day after the shooting in order to obtain further information, but Contreras did not return his calls.
Three days after the shooting, Rook-E and Whopper came to Contreras’s house. Rook-E said they were not there to disrespect, but that Contreras had better not snitch, or he would be dealt with. Angry and afraid, Contreras asked them to leave.
Bravo worked one shift following the shooting, then was off for three days. When he returned, he contacted Contreras’s older brother, a member of the sheriff’s department, because Contreras still would not return his calls. He also enlisted the help of Deputy Fleeman in assembling a photographic lineup. When he informed Fleeman that someone had mentioned the name “Sniper” on the night of the shooting, Fleeman identified Sniper as appellant, and so appellant’s photograph was included in one of the photographic arrays.
On October 27, Bravo reached Contreras by telephone and told him that he wanted Contreras to view the photographs. Although Contreras refused, he informed Bravo that Loza and Penalber had seen who shot him. As a result, Bravo went to Loza’s house that same day and showed her both displays. Loza said none of the people depicted in the one lineup were present. In the second lineup, however, she positively identified appellant’s photograph. Bravo then went to Penalber’s residence and showed him the same two displays. Penalber did not recognize anyone in the first one, but positively identified appellant’s photograph in the second one.
On November 9, 2005, appellant placed a telephone call from the Kern County jail to “Larissa.” Partway through the call, appellant asked her to call Rook-E, which she did. Appellant asked Rook-E whether he had gotten hold of Jug and told his people not to go or just to say it was a misunderstanding. Rook-E replied that they had talked to Jug the day before, and that Jug had said to tell appellant to take it to trial, that he was not going to show up. Appellant also said there were two other witnesses, a male and a female, who had selected his picture. Rook-E asked appellant to get him a copy of appellant’s paperwork so that he could get whoever was on there. Appellant replied that he was going to get the paperwork on Monday, but that he would be in a lineup that day and the man and woman would be there. Appellant said he did not know them, and asked Rook-E to get hold of Jug and let him know to tell whoever talked to the police that it was a misunderstanding. When, after further conversation, Rook-E said that he and Ghost had talked to him the day before, appellant asked them to do it again and let him know to tell the people who talked to the police not to go or to deny everything. Rook-E told appellant not to “trip,” and that he would call Ghost and let him know what was happening. He also said they had tried unsuccessfully to get the names of the other witnesses.
A tape recording of the call was played for the jury.
Contreras confirmed that he had told Rook-E that he was not going to show up, and to tell appellant to take it to trial. Contreras did so because he did not want any problems with anyone. Contreras also confirmed that Rook-E had asked him for information on the other witnesses, but that Contreras refused to give it to him.
On December 5, 2005, appellant placed a telephone call from the Kern County jail to “Palmira.” Appellant claimed the police and witnesses were lying, then said, “But just with that vato says no, boom, they will dismiss.” Appellant insisted he was not the perpetrator and said the witnesses differed on what the shooter was wearing. Appellant then mentioned someone he and Palmira knew, and how this person apparently shot someone, but the case was dismissed when the witnesses recanted their identifications. Appellant then mentioned Tony, and said he was going to “send the paper” of what the witness said. Appellant said Tony needed to show it to the person so that the person would not change things. Appellant related that the person had come into the courtroom, but the prosecutor made him leave because he did not want to cooperate. After further conversation, appellant asked Palmira to let Tony know everything and tell him to talk to “that vato.” When Tony Romero arrived during the telephone call, appellant informed him that he was going to send Romero the paperwork so that the “vato” would tell the same story. When Tony asked if the case was going to be dropped, appellant replied, “Yeah, just as long as that vato tell you guys … [¶] … [¶] … you know.”
A tape recording of the call was played for the jury.
Tony Romero is appellant’s older brother.
Contreras confirmed that he was subpoenaed and so appeared for the preliminary hearing, but told Bravo and the prosecutor that he did not remember who shot him. He said that all he recalled was a blast, and then he woke up. Contreras lied because he feared for his family. He also lied when he said no one had contacted or pressured him.
On December 24, 2005, appellant placed a telephone call from the Kern County jail and spoke to Tony Romero. Romero related that he had talked to the person on Friday. Appellant said he knew “that vato” did not want to be labeled as a snitch, but that there were two people “[i]n front of that problem” who were saying different things and that they saw what happened. Romero said he was going to call the person right then and wish him a merry Christmas. He told appellant that the person was not going to say anything. Appellant complained about what the woman was doing, but said it did not matter as long as the “vato” did not say anything. Romero informed appellant that the man’s brother was a law enforcement officer in Shafter. When appellant asked where the brother worked, Romero said he thought at the courthouse, and that he was going to investigate everything that day and talk to the witness. Appellant agreed “that’s the main shit,” compared to the other two witnesses. Romero reiterated that he had talked to him and everything was “all cool,” and that he was going to keep in touch with him. Romero assured appellant that “this shit out here” would “get handled.”
A tape recording of the call was played for the jury.
Contreras confirmed that the voice mail response on his cell phone could be heard on the tape recording, indicating Romero twice tried to call him during the conversation with appellant. Contreras also confirmed that Romero came over to his house one night and told him not to snitch or say anything about Sniper. Romero said he was there to apologize for what his brother had done, which was a big misunderstanding. He said appellant wanted to do good now, and asked Contreras not to testify against him so that appellant could be there for his young child and have a second opportunity at life. Romero showed Contreras a picture of appellant’s little boy, as well as the statement Contreras gave to Bravo on the night of the shooting, and told him just to stick with the same story, i.e., that Contreras did not remember anything and did not want anything to happen. Because he did not want any problems with Romero or any of the others, Contreras agreed that he would not say anything in court and did not remember anything.
On or about February 11, 2006, someone fired a shotgun at Penalber’s house. Birdshot penetrated the window and blinds in his children’s bedroom, where he had been sleeping. Penalber felt scared for his and his family’s lives. Contreras learned of this incident the next day. This made Contreras fear what would happen to his own family if he testified. Contreras drew a connection between this shooting and Wasco 13, because some kind of retaliation was usually what happened when someone testified.
On March 12, 2006, Bravo went to Contreras’s house to try to find out who actually named Sniper on the day of the shooting and, in light of the intercepted conversations between appellant and his brother, whether Contreras was going to testify. Bravo surreptitiously recorded his conversation with Contreras, who was still uncooperative and said he did not want anything done and should never have said anything. Bravo used a police tactic to try to get Contreras to admit saying it was Sniper, telling Contreras that Contreras had told Bravo it was Sniper. Contreras affirmed he had said it, although Bravo had no independent recollection of Contreras naming Sniper on the night of the shooting. Bravo never put anything in a report about someone saying it was Sniper on the evening of the shooting, because his sergeant would have kicked it back and said to find out who it was. Bravo tried to confirm the information in the days following the shooting, but Contreras would not answer his telephone calls. When Bravo returned from his days off, he consulted Deputy Fleeman concerning Sniper’s identity.
Contreras first testified under oath about the shooting in May 2006. Even then, he lied about not remembering the person who shot at him. He was in fear for his family’s lives because of what had happened at Penalber’s house. It was bothering him, though, and he finally decided to identify the shooter a few days before trial. He felt he might be saving somebody else’s life.
Deputy Fleeman testified as an expert on gangs. According to him, Wasco 13, also known as Varrio Wasco Rifas, had more than 40 members. Common symbols of the gang were 13, Sur, and VWR tattoos. In Fleeman’s opinion, Wasco 13’s primary activities were the commission of vehicle burglaries and narcotics sales, mainly methamphetamine. Fleeman discussed two predicate cases in which active Wasco 13 members committed burglary and narcotic sales, and opined, based on his prior contacts with appellant and training and experience, that appellant was an active gang member at the time of the shooting, as was Whopper. Fleeman further opined that the shooting was done for the purpose of furthering criminal conduct by Wasco 13 members and the gang. According to Fleeman, respect is very important to Hispanic turf gang members, and is the ultimate goal for a gang member. Gang members gain respect through violence, typically assaults. Fleeman opined that the comment from someone at the house to keep on going made the three perpetrators feel disrespected. The shooting let everyone in the area know not to disrespect Wasco 13 gang members. This furthered the gang by placing the community in fear of it. Additionally, the shooter’s status was elevated within the gang because he actually committed a crime and shot someone.
DISCUSSION
I
THIRD-PARTY ATTEMPTS TO SUPPRESS EVIDENCE
Appellant contends the trial court erred by admitting evidence of an attempt made by his mother to dissuade Ruth Loza from identifying appellant as the shooter at the preliminary hearing. Appellant says the court compounded the error by instructing that such evidence could be considered as showing appellant’s consciousness of guilt, as there was no evidence appellant authorized his mother’s actions.
A. Background
At trial, the prosecutor elicited from Loza that she had testified at appellant’s preliminary hearing on Monday, November 28, 2005. Two or three days before, two women came to her door. One asked her, in Spanish, if her name was Ruth. When Loza said yes, the woman said she heard something had happened and asked what it was. Loza responded that some kids had shot someone, whereupon the woman asked if Loza had seen the person. Loza said she had. When Loza started to say what the woman had told her, defense counsel objected on hearsay grounds and also under Evidence Code section 352. When the trial court sustained the hearsay objection, the prosecutor countered that the statement was not being offered for the truth of the matter, but instead for the witness’s state of mind. The court stated it would permit the testimony as long as Loza could say what the woman asked her to do. Loza responded that the woman asked her not to testify, and to say that it was not her son. Loza further testified that, when the woman asked her not to say anything, Loza stayed quiet, but kind of felt bad because the woman was pleading not to say anything. The woman, who said her name was Maria and that she was the mother of Gerardo, “said they won’t do anything. I’ll take him to Mexico. His brother will come down and get him and take him.”
Evidence Code section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
When defense counsel renewed his hearsay objection and moved to strike, the prosecutor again argued that the evidence was not offered for the truth of the matter, but to show Loza’s state of mind. He also noted there would be further foundation and evidence that the jury would hear later, and with which the court was familiar. Outside the jury’s presence, defense counsel again argued the statement was highly prejudicial under Evidence Code section 352. The prosecutor countered that, under CALJIC No. 2.20, jurors were allowed to consider, in determining the believability of a witness, anything that had a tendency reasonably to prove or disprove the truthfulness of the witness’s testimony, and that whether a witness had been pressured was relevant. When the court asked whether the jury should be admonished that the statement was not to be accepted for the truth of its content, but only in regard to the credibility of the witness, the prosecutor agreed, stating, “That’s the only purpose it’s being offered is to help them evaluate the credibility. [¶] I think [Loza] is sitting here and testifying courageously, under circumstances where she has been pressured not to, and I think that’s something that the jury can evaluate when they’re … looking at her testimony.” The prosecutor also called the court’s attention to CALJIC No. 2.05, concerning third-party efforts to procure false or fabricated evidence. The court suggested to defense counsel that it would be a good idea to read that instruction to the jury, but defense counsel argued that Loza was not pressured, and instead the request by appellant’s mother had absolutely no bearing on her testimony. Defense counsel objected on foundational grounds, claiming it had not yet been established that Loza was, in fact, approached by someone, as the prosecutor needed to present the tape recordings or appellant’s mother, and reiterated his argument that the evidence was highly prejudicial. He stated, however, that if the court were to allow the testimony, he would want CALCRIM No. 371 (the corollary to CALJIC No. 2.05) read to the jury.
The trial court had already ruled on admissibility of the various tape-recorded telephone calls made by appellant from jail, and had found the bulk of them relevant and admissible under Evidence Code section 352. One of them was a conversation between appellant and his mother, in which she apparently assured him that everything was going to be all right. This conversation, which the prosecutor initially argued would corroborate Loza’s testimony, ultimately was not presented to the jury. In appellant’s December 5, 2005, call from the jail to Palmira, which was presented to the jury, however, Palmira asked whether the female witness had identified appellant. Appellant responded affirmatively, then asked Palmira not to let his mother go over there. Sometime before appellant’s trial, his mother pled guilty to a misdemeanor as a result of her conduct.
The trial court ruled that the jury should be admonished pursuant to CALCRIM No. 371, and that, if that was done, the probative value of the evidence would outweigh its prejudicial effect. Immediately after the jury returned, the court instructed:
“The comments by Miss Loza regarding the two ladies that contacted her … are not to be received for the truth of the matter, but only as they may relate to the attitude of the witness or credibility of the witness toward this action or toward the giving of testimony. [¶] … [¶]
“If someone other than the defendant tried to create false evidence, provide false testimony, or conceal or destroy evidence, that conduct may show the defendant was aware of his guilt, but only if the defendant was present and knew about that conduct or, if not present, authorized the other person’s actions. It is up to you and you alone to decide the meaning and importance of this evidence. However, evidence of such conduct cannot prove guilt by itself.”
On cross-examination, defense counsel elicited from Loza that appellant’s mother did not seem threatening, and that Loza had felt sorry for her. When defense counsel suggested Loza was not threatened at all, Loza replied, “Not by her, no.” Similarly, when counsel asked, “You weren’t intimidated by her, were you?” Loza responded, “By her, no.”
During his argument to the jury, the prosecutor suggested Loza had no motive to falsely identify appellant or otherwise testify falsely. He stated: “To the contrary. Pressure was applied to her at her home to not do this and she did testify the way she remembered.” During the giving of instructions at the conclusion of the evidentiary portion of trial, the court again instructed the jury in the language of CALCRIM No. 371, to wit: “If someone other than the defendant tried to provide false testimony, that conduct may show the defendant was aware of his guilt, but only if the defendant was present and knew about that conduct or, if not present, authorized the other person’s actions. It is up to you to decide the meaning and importance of this evidence; however, evidence of such conduct cannot prove guilt by itself.”
B. Analysis
Here, although Loza testified she did not feel threatened or intimidated by appellant’s mother herself, the clear import of her testimony was that she did feel some fear or intimidation. Pressure was brought to bear on her, by both appellant’s mother and the circumstances surrounding the shooting. While Loza never wavered in her identification of appellant as the shooter, there were some discrepancies between her testimony at the preliminary hearing, before the grand jury, and at trial, and she did not come forward on the night of the shooting, but only identified appellant after Contreras informed Bravo that Loza had seen the shooter. Thus, the challenged testimony was relevant to Loza’s credibility. (See People v. Guerra (2006)37 Cal.4th 1067, 1141-1142; People v. Avalos (1984) 37 Cal.3d 216, 232.) Inasmuch as the jury was promptly and correctly instructed concerning the limited purpose of the evidence, and given the essentially polite tenor of the interaction between Loza and appellant’s mother, we cannot say the trial court abused its discretion under Evidence Code section 352 by permitting the testimony. (See People v. Burgener (2003) 29 Cal.4th 833, 869-870.)
Turning to CALCRIM No. 371, we note that defense counsel asked the court to give the instruction if it allowed the challenged testimony. Under these circumstances, any objection to the instruction may be deemed forfeited on appeal, assuming the actions of appellant’s mother were in some way directed by him. (People v. Gutierrez (1994) 23 Cal.App.4th 1576, 1589-1590.) If jurors could not have found appellant authorized his mother’s conduct, the instruction either should not have been given with respect to her conduct because there was no evidence supporting an inference of appellant’s consciousness of guilt (see People v. Hart (1999) 20 Cal.4th 546, 620; People v. Hannon (1977) 19 Cal.3d 588, 596-600; People v. Terry (1962) 57 Cal.2d 538, 565-566), or it should have been modified so as to preclude the jury from finding such authorization (see People v. Guerra, supra, 37 Cal.4th at p. 1142).
However, any error in giving CALCRIM No. 371 with respect to the conduct of appellant’s mother (or in admitting that evidence in the first place) was manifestly harmless. The instruction told jurors not to consider such evidence to show consciousness of guilt without evidence of appellant’s authorization, and we presume jurors heeded this admonition. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17; see People v. Burgener, supra, 29 Cal.4th at p. 870 [reviewing court presumed jury followed trial court’s admonition to disregard evidence defendant threatened witness].) Moreover, the instruction clearly benefited appellant by preventing jurors from using the shooting of Penalber’s house against him. (See People v. Gutierrez (1978) 80 Cal.App.3d 829, 836-837.) In addition, the evidence concerning appellant’s mother was minor in light of the evidence of appellant’s involvement in, and authorization of, attempts to keep Contreras from testifying or identifying him as the shooter. (Contrast People v. Brooks (1979) 88 Cal.App.3d 180, 187-188.) Under the circumstances, it is neither reasonably probable appellant would have obtained a more favorable result had the evidence been excluded or the instruction not given (People v. Watson (1956) 46 Cal.2d 818, 836; see People v. Hannon, supra, 19 Cal.3d at p. 603 [applying Watson standard where consciousness-of-guilt instruction given without sufficient evidentiary support]), nor did admission of the evidence or the giving of the instruction render the trial fundamentally unfair so as to result in a violation of due process (People v. Partida (2005) 37 Cal.4th 428, 439; People v. Albarran (2007) 149 Cal.App.4th 214, 229-230).
We recognize, as has the United States Supreme Court, that “[c]ases may arise in which the risk of prejudice inhering in material put before the jury may be so great that even a limiting instruction will not adequately protect a criminal defendant’s constitutional rights. [Citations.]” (Francis v. Franklin (1985) 471 U.S. 307, 324, fn. 9; see, e.g., Bruton v. United States (1968) 391 U.S. 123 [admission of codefendant’s statement, implicating defendant, at joint trial]; Jackson v. Denno (1964) 378 U.S. 368 [admission of involuntary confession].) “Absent such extraordinary situations, however, we adhere to the crucial assumption underlying our constitutional system of trial by jury that jurors carefully follow instructions.” (Francis v. Franklin, supra, 471 U.S. at p. 324, fn. 9.) Contrary to appellant’s claim, this case does not present an extraordinary situation.
II
ADOPTIVE ADMISSION
Appellant contends the trial court erroneously instructed on adoptive admissions, thereby permitting jurors to draw adverse inferences from his silence. He says the instruction was error “under compulsion of” People v. Carter (2003) 30 Cal.4th 1166 (Carter), and violated his Fifth Amendment privilege against self-incrimination.
A. Background
The prosecutor argued that the tape recordings of appellant’s telephone calls from jail were admissible, inter alia, as admissions. Defense counsel objected that the evidence was irrelevant and highly inflammatory. As previously described, the trial court found the bulk of them relevant and admissible under Evidence Code section 352.
In the December 24, 2005, conversation between appellant and his brother, Tony Romero described for appellant his conversation with “the vato” (inferentially, Contreras). According to the transcript of the recording, this ensued:
“[Romero]: … you know he’s got a kid. I showed him a picture of your, of your son.
“[Appellant]: Yeah.
“[Romero]: I man look, look at the cute baby. (inaudible) you know if you got feelings you know how you got babies you know this and that you gotta (inaudible) he wants to see his son grow. He wants to see his son grow, you know.
“[Appellant]: Yeah.
“[Romero]: He’s barely and my brother’s young too, you know, he made a fucking stupid mistake which anybody can make you know. You were out there in the streets too (inaudible) fucking work whatever, if you were whatever, you know.
“[Appellant]: Yeah.
“[Romero]: But everybody makes mistakes you know fucking excuse this and that you know fucking what can I tell you shit. He’s all no this and that you know fucking whatever. But it’s cool and shit.
“[Appellant]: (inaudible) dawg.
“[Romero]: (inaudible).
“[Appellant]: All right then, all right then brother.” (Italics added.)
During the instructional conferences, no mention was made of CALCRIM No. 357 (Adoptive Admissions), although the trial court stated it would be giving CALCRIM No. 358 (Evidence of Defendant’s Statements). In his argument to the jury, the prosecutor discussed the various recorded telephone calls. As he started to talk about the call that took place on December 24, he advised the court that there was, potentially, one more jury instruction that needed to be discussed. When the court said they would take that up at the end of that day’s session, the prosecutor proceeded to describe the contents of the telephone call, then argued, “If Gerardo Romero was innocent, he’d say what are you talking about I made a big mistake? This isn’t me. But that’s not how that conversation goes. He’s basically listening and he’s taking it in and he’s basically agreeing with Tony.”
After the jury was excused for the evening, the prosecutor asserted that appellant’s lack of denial, in response to Romero telling him that Romero said to Contreras that his brother made a big mistake, constituted an adoptive admission, and so it would be appropriate to give CALCRIM No. 357. Defense counsel responded that there was no adoptive or tacit admission, that appellant had never admitted anything during the various conversations, and that appellant could have been thinking he made a big mistake by going out on the night in question and not staying home with his girlfriend. After further argument, the trial court ruled: “Put it this way: I think it’s quite a stretch, but you’ve got enough to get it to the jury and they can assess the facts and what my duty is is to give the jury the law so that if they feel that those four requirements are all there, then they can consider whether it’s an adoptive admission .… [¶] And so let’s give the 357 .… [¶] … [¶] Well, one brother, Tony, was telling the other brother, the defendant, I made this statement to the victim and said, in so many words, you, Gerardo, made a blank stupid mistake which anyone can make, you know. [¶] I think if you read it in the context of the other language, it could be an adoptive admission and I feel I’ve got to give it sua sponte to make sure that the jury knows that all four requirements have to be met before they reach a conclusion that [appellant] admitted that the statement was true by virtue of his silence. [¶] I think it’s a stretch, but there’s a plausible – there may be someone on there that buys that.”
The trial court subsequently instructed in the language of CALCRIM No. 357, to wit:
“If you conclude that someone made a statement outside of court that accused the defendant of a crime or tended to connect the defendant with the commission of the crime and the defendant did not deny it, you must decide whether each of the following is true:
“One, the statement was made to the defendant or made in his presence;
“Two, the defendant heard and understood the statement;
“Three, the defendant would, under all the circumstances, naturally have denied the statement if he thought it was not true;
“And, fourth, the defendant could have denied it, but did not.
“If you decide that all of these requirements have been met, you may conclude that the defendant admitted the statement was true. If you decide that any of these requirements has not been met, you must not consider either the statement or the defendant’s response for any purpose.”
B. Analysis
Despite the general prohibition against hearsay (see Evid. Code, § 1200, subd. (b)), Evidence Code section 1221 permits the introduction into evidence of adoptive admissions. “Under this provision, ‘If a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution, and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt.’ [Citations.] “For the adoptive admission exception to apply, … a direct accusation in so many words is not essential.’ [Citation.] ‘When a person makes a statement in the presence of a party to an action under circumstances that would normally call for a response if the statement were untrue, the statement is admissible for the limited purpose of showing the party’s reaction to it. [Citations.] His silence, evasion, or equivocation may be considered as a tacit admission of the statements made in his presence.’ [Citation.]” (People v. Riel (2000) 22 Cal.4th 1153, 1189.)
Evidence Code section 1221 provides: “Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.”
In the present case, the evidence at issue was Romero’s recitation, in his conversation with appellant, of how he told Contreras that appellant had made a mistake. That Romero was recounting a conversation appellant could not have heard is immaterial, as his statement that appellant had made a mistake implicated appellant in the shooting. (See People v. Davis (2005) 36 Cal.4th 510, 537.) We question the premise that appellant did not respond; a sentence later, the transcript shows, he said, “Yeah.” The transcript also shows a response, albeit mostly inaudible, following Romero’s comment that everybody makes mistakes. In any event, appellant did not protest the notion that he had made a mistake that, in context, almost certainly referred to the shooting of Contreras. Accordingly, “[t]he circumstances warranted presenting the evidence to the jury and letting the jury decide what weight to give it. ‘To warrant admissibility, it is sufficient that the evidence supports a reasonable inference that an accusatory statement was made under circumstances affording a fair opportunity to deny the accusation; whether defendant’s conduct actually constituted an adoptive admission becomes a question for the jury to decide.’ [Citation.] The court correctly instructed the jury how to consider the evidence. [Citation.]” (People v. Riel, supra, 22 Cal.4th at pp. 1189-1190; see People v. Medina (1990) 51 Cal.3d 870, 891 [discussing CALJIC No. 2.71.5, counterpart to CALCRIM No. 357], affd. sub nom. Medina v. California (1992) 505 U.S. 437.)
Appellant claims, however, that Carter, supra, 30 Cal.4th 1166, compels a finding of error and, pursuant to that opinion, when, as here, the prosecution requests the instruction and the defense objects, the instruction must not be given. Appellant has misread the case.
In Carter, the defendant claimed the trial court erred by failing to instruct, sua sponte, with CALJIC No. 2.71.5, concerning adoptive admissions. (Carter, supra, 30 Cal.4th at p. 1197.) While recognizing that several Court of Appeal decisions had held such a sua sponte duty exists, the California Supreme Court rejected that line of authority as “lack[ing] continuing validity in view of People v. Collie (1981) 30 Cal.3d 43,” in which the court had held that a trial court has no sua sponte duty to instruct on the limited purpose for which evidence of other crimes is admitted. (Carter, supra, at pp. 1197-1198.) The Collie court “distinguished such evidentiary matters from the sua sponte duty to instruct regarding defenses and lesser included offenses, which ‘are required because those matters are “closely and openly connected” with the evidence and the fate of the defendant in cases to which they apply.’ [Citation.]” (Carter, supra, at p. 1198.) Carter concluded: “The same reasoning applies to CALJIC No. 2.71.5. Trial courts are not to be ‘saddle[d] … with the duty … to review the entire record at trial’s end in search of’ adoptive admissions. [Citation.]” (Carter, supra, at p. 1198.) As is directly pertinent to appellant’s contention here, the California Supreme Court continued: “As CALJIC No. 2.71.5 explains, adoptive admissions require certain foundational facts. Trial courts may certainly instruct on the matter if they think it is best to do so. But, as the Evidence Code makes clear, courts are required to so instruct only at a defendant’s request.… [¶] In a given case, it may be far from clear whether the defendant would wish the court to give CALJIC No. 2.71.5. The instruction is largely a matter of common sense – silence in the face of an accusation is meaningful, and hence may be considered, only when the defendant has heard and understood the accusation and had an opportunity to reply. Giving the instruction might cause the jury to place undue significance on bits of testimony that the defendant would prefer it not examine so closely. [Citation.] [¶] For these reasons, we hold that a trial court must give CALJIC No. 2.71.5 only when the defendant requests it.” (Carter, supra, at p. 1198; original italics omitted, italics added.)
Nothing in Carter suggests a defendant may preclude the giving of an instruction on adoptive admissions simply by objecting to it. Instead, absent a defense request, the giving of the instruction rests within the trial court’s discretion. (Carter, supra, 30 Cal.4th at p. 1198.) Here, the trial court clearly was concerned with whether the evidence in issue constituted an adoptive admission, and wanted to make sure jurors knew they had to find all four requirements before they could conclude appellant tacitly admitted the statement was true. The trial court did not err by giving the instruction.
It appears the court may have been misled by the Bench Notes to CALCRIM No. 357, which have consistently stated that trial courts have a sua sponte duty to instruct on the foundational requirements for adoptive admissions if such evidence is admitted and, inexplicably, do not mention Carter. (Bench Notes to CALCRIM No. 357 (2006) p. 135; Bench Notes to CALCRIM No. 357 (2006-2007) p. 135; Bench Notes to CALCRIM No. 357 (2007-2008) p. 133.)
Appellant contends, however, that, by authorizing the drawing of adverse inferences from his silence, the instruction violated his Fifth Amendment privilege against self-incrimination. Although respondent makes no assertion of waiver or forfeiture (preferring, apparently, not to address the Fifth Amendment issue at all beyond saying any error was harmless beyond a reasonable doubt due to the strength of the evidence appellant was the shooter), we question whether this claim is properly before us: At no time did appellant object to the giving of the instruction on the ground he now advances. (See People v. Geier (2007) 41 Cal.4th 555, 590; People v. Jurado (2006) 38 Cal.4th 72, 117.) While we are aware that, in the context of evidentiary rulings, the California Supreme Court has held a defendant may advance on appeal a claim made in the trial court and may further argue an additional legal consequence of the asserted error (People v. Partida, supra, 37 Cal.4th at pp. 437-439), the court reiterated “that a defendant may not argue that the court committed error for a reason not included in the trial objection” (id. at p. 438, fn. 3) and “may not argue on appeal that the court should have excluded the evidence for a reason different from the one stated at trial. A party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct. [Citation.]” (Id. at p. 438, fn. 5.)
In any event, we find no derogation of appellant’s constitutional rights. “[T]he Fifth Amendment … forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” (Griffin v. California (1965) 380 U.S. 609, 615, fn. omitted.) “The rationale of Griffin implicitly proscribes drawing an inference adverse to the defendant from his failure to reply to an accusatory statement if the defendant was asserting his constitutional privilege against self-incrimination.” (People v. Cockrell (1965) 63 Cal.2d 659, 669-670.) Thus, “[w]here a defendant’s failure to reply is based on his constitutional right to remain silent, instructing the jury that it can treat the failure to reply as an adoptive admission violates the Fifth Amendment. [Citations.]” (Arnold v. Runnels (9th Cir. 2005) 421 F.3d 859, 869.)
Although at least one federal court appears to have placed a blanket prohibition on the use of a defendant’s post-Miranda silence because such silence “is ‘insolubly ambiguous’” (Franklin v. Duncan (N.D.Cal. 1995) 884 F.Supp. 1435, 1447-1448, affd. (9th Cir. 1995) 70 F.3d 75), the California Supreme Court has not yet drawn such a bright line (see People v. Medina, supra, 51 Cal.3d at pp. 890-891). Here, the circumstances simply do not lend themselves to any inference appellant was relying on his right to remain silent. We assume appellant was advised of his constitutional rights upon his arrest, and we assume, as defense counsel represented to the trial court during a discussion about the tape recordings, appellant was warned that his telephone calls would be monitored or recorded or both. As defense counsel recognized, however, “people have a tendency to continue speaking, and in this case that happens to be the situation .…” Appellant revealed he was more than willing not only to discuss his case, but to openly direct others to pressure the witnesses against him. In light of all the circumstances, we see no constitutional impediment to allowing the jurors to decide whether appellant reasonably could have been expected to respond to, and deny, his brother’s statement about making a mistake, and, if so, permitting them to conclude appellant thereby admitted the statement was true.
Miranda v. Arizona (1966) 384 U.S. 436.
III
CIRCUMSTANTIAL EVIDENCE OF INTENT OR MENTAL STATE
Next, appellant contends the trial court erred by failing to give CALCRIM No. 225 (Circumstantial Evidence: Intent or Mental State), as the prosecutor relied on circumstantial evidence to prove appellant’s intent to kill with respect to count 1. Calling our attention to Zorro’s proclivity for slicing a “Z” on the cheeks of his vanquished foes, appellant says the omission was prejudicial because the evidence was reasonably susceptible to several interpretations, including not only an intent to kill, but also an intent to disrespect, injure, or disable Contreras. Respondent contends this argument is nonsense. We are equally unimpressed.
A. Background
The trial court initially listed CALCRIM No. 225 as one of the instructions it intended to give. Both counsel later stipulated to withdraw the instruction, however, as the trial court would be giving CALCRIM No. 224 (Circumstantial Evidence: Sufficiency of Evidence).
In his argument to the jury, the prosecutor relied on circumstantial evidence to prove appellant intended to kill Contreras. Defense counsel did not discuss intent, but instead attacked the eyewitness identifications and the investigation of the shooting. The court subsequently defined direct and circumstantial evidence for the jury pursuant to CALCRIM No. 223 (Direct and Circumstantial Evidence: Defined), then gave CALCRIM No. 224, to wit:
“Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.
“Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty.
“If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”
The court did not give CALCRIM No. 225, which would have told jurors:
“The People must prove not only that the defendant did the acts charged, but also that (he/she) acted with a particular intent or mental state. The instructions for each crime explain the intent or mental state required.
“An intent or mental state may be proved by circumstantial evidence.
“Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.
“Also, before you may rely on circumstantial evidence to conclude that the defendant had the required intent or mental state, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required intent or mental state. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required intent or mental state and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required intent or mental state was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”
We quote the 2006 version of the instruction. Minor revisions were made in August 2006, around the time of appellant’s trial, that do not affect our reasoning.
B. Analysis
“An instruction on the principles contained in [CALCRIM No. 224] ‘must be given sua sponte when the prosecution substantially relies on circumstantial evidence to prove guilt. [Citations.]’ [Citation.]” (People v. Rogers (2006) 39 Cal.4th 826, 885; People v. Yrigoyen (1955) 45 Cal.2d 46, 49.) “The general instruction on sufficiency of circumstantial evidence [CALCRIM No. 224] is a more inclusive instruction on sufficiency of circumstantial evidence than the instruction on sufficiency of circumstantial evidence to prove specific intent or mental state [CALCRIM No. 225], and the former is the proper instruction to give unless the only element of the offense that rests substantially or entirely on circumstantial evidence is that of specific intent or mental state. [Citations.]” (People v. Cole (2004) 33 Cal.4th 1158, 1222; accord, People v. Hughes (2002) 27 Cal.4th 287, 347.)
Cases involving CALJIC No. 2.01 (sufficiency of circumstantial evidence – generally) and CALJIC No. 2.02 (sufficiency of circumstantial evidence to prove specific intent or mental state) are equally applicable to CALCRIM Nos. 224 and 225.
Here, the perpetrator’s intent in shooting Contreras was not the only issue before the jury that rested substantially or entirely on circumstantial evidence. For instance, circumstantial evidence was also a substantial part of the prosecution’s proof of the gang enhancement. (See, e.g., People v. Ferraez (2003) 112 Cal.App.4th 925, 930; People v. Olguin (1994) 31 Cal.App.4th 1355, 1375; People v. Gamez (1991) 235 Cal.App.3d 957, 980 (conc. opn. of Wallin, J.), disapproved on other grounds in People v. Gardeley (1996) 14 Cal.4th 605, 624, fn. 10.)
Assuming, however, that CALCRIM No. 225 should have been given specifically as to the attempted murder charge, we cannot reverse. Unlike appellant, we do not focus on whether the evidence was reasonably susceptible of a conclusion appellant lacked intent to kill – something we doubt, but which would be of importance if no instruction had been given on circumstantial evidence. (See, e.g., People v. Yrigoyen, supra, 45 Cal.2d at pp. 49-50; People v. Yokum (1956) 145 Cal.App.2d 245, 253-255.) Instead, we look to see whether the requisite legal principles were adequately conveyed to the jury. In this regard, we do not ignore the fact that the trial court gave CALCRIM No. 224 – a circumstance appellant fails to acknowledge, and one which, in light of settled appellate authority construing the counterpart instructions, CALJIC Nos. 2.01 and 2.02, is dispositive.
“[T]he correctness of jury instructions must be determined from all of the instructions given, not from a consideration of parts of an instruction or from a particular instruction. The absence of a critical element in one instruction may be supplied by another or cured by the instructions as a whole. [Citation.]” (People v. Lee (1990) 220 Cal.App.3d 320, 327-328.) Thus, “[t]here is no error in a trial court’s failing … to instruct on one matter, unless the remaining instructions, considered as a whole, fail to cover the material issues raised at trial. As long as the trial court has correctly instructed the jury on all matters pertinent to the case, there is no error.” (People v. Dieguez (2001) 89 Cal.App.4th 266, 277.)
The only difference between CALCRIM Nos. 224 and 225 is that CALCRIM No. 225 “focuses the jury’s attention on the sufficiency of the circumstantial evidence to prove specific intent or a mental state, while [CALCRIM No. 224] broadly covers all circumstantial evidence.” (People v. Burch (2007) 148 Cal.App.4th 862, 872.) “[T]he more general instruction logically includes the more specific .…” (People v. Cole, supra, 33 Cal.4th at p. 1222.) “Because the trial court delivered the more inclusive instruction under [CALCRIM No. 224], its [failure] to additionally instruct with [CALCRIM No. 225] clearly was not prejudicial error. [Citations.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1142.)
IV
INEFFECTIVE ASSISTANCE OF COUNSEL
Appellant contends he was denied the effective assistance of counsel. He complains that his trial attorney (1) neglected to object to the prosecutor’s failure to disclose information and correct false or misleading testimony by both Contreras and Deputy Bravo, which misconduct by the prosecutor constituted a denial of due process; and (2) failed to obtain important pretrial discovery, carefully investigate the case, and provide informed advice, thereby depriving appellant of an advantageous plea bargain.
A. Background
Appellant’s trial began on August 7, 2006, with Ruth Loza, the People’s first witness, called on August 9. During cross-examination that day, defense counsel elicited that, although she could not recall how long sheriff’s deputies were at her house on the night of the shooting, she remembered them taking Contreras and her brother-in-law to take a look at someone. During his testimony the next day, Contreras stated, on direct examination, that, on the night of the shooting, Deputy Bravo asked Contreras to get in his patrol car because they thought they had found the perpetrators. Prior to getting into the car, Contreras had told Bravo that Sniper was the shooter. During his cross-examination of Contreras on August 14, defense counsel asked about the in-field identification procedure and elicited that Contreras did not identify anyone. Defense counsel also questioned Contreras about what he told Bravo. Court then recessed for lunch.
After the lunch break, defense counsel stated that he had learned from the prosecutor, over the noon hour, that a one-page letter had been sent to him, informing him of a discussion or interview between Bravo and Contreras, and that the discussion was on a CD. The prosecutor clarified that Bravo had told him on a previous occasion that he could not remember who was talking about Sniper at the crime scene, although someone obviously mentioned the name, as Bravo was able to include appellant’s picture in the photographic lineup he showed to Loza and Penalber a few days after the shooting. When the prosecutor spoke to Bravo over the lunch hour, Bravo said he was fairly sure that when he talked to Contreras in spring of 2006, Contreras – although still being uncooperative – confirmed that he was the one who had mentioned Sniper. Bravo referred the prosecutor to Bravo’s one-page report from March 2006. The prosecutor represented that this report had been turned over to defense counsel, although he admitted that there was no reference in it to the content of the recorded conversation. Instead, the report simply related that Bravo reinterviewed Contreras on March 12 and booked the CD of the conversation into property. The prosecutor further admitted he had not given that CD to defense counsel until over the lunch hour that day, i.e., August 14. Defense counsel confirmed that he had not had the CD; all the one-page report said was that there was a discussion and it was taped; and counsel received many CD’s in this case and probably assumed it was included. Defense counsel stated he would have the CD transcribed that day, and the prosecutor agreed to call Fleeman as his next witness instead of Bravo, as he originally had planned, in order to give counsel time to listen to the CD.
The next morning, defense counsel moved to dismiss the case pursuant to section 1385 or, alternatively, for a mistrial. He stated that, until trial, he was unaware there had been an in-field showup on the night of the shooting. He further stated that, during the March 2006 conversation between Bravo and Contreras that was on the CD (which had now been transcribed), Contreras said he did not want to do anything, but Bravo told him it was too late for that, that Contreras should have said he did not know anything, and that instead Contreras himself told Bravo it was Sniper. Bravo told Contreras that Contreras did not have to get in the patrol car and tell Bravo that it was “these two cats” who were the perpetrators. Defense counsel argued that this statement totally contradicted the report Bravo wrote in this case and that, while Bravo had prepared a one-page document referencing a discussion between Contreras and himself, no report laid out the substantive portion of the discussion. Furthermore, although the conversation was recorded, defense counsel did not receive the CD until the day before. Counsel asserted that, had this evidence been presented or included in Bravo’s initial report of the shooting, “more likely than not, …, we would not have been here.”
Defense counsel represented that Bravo testified, at the preliminary hearing in November 2005, that he believed Contreras told him on the night of the shooting that he knew some of the perpetrators, but Bravo was unsure. When the prosecutor then asked Bravo if anything would refresh his memory, Bravo said no, and that it was not documented in his report. According to the preliminary hearing transcript, Bravo testified that someone said it was “a” sniper, and that he did not remember who told him that. Defense counsel argued that this all meant Bravo knew, on the night of the shooting, that Sniper was named as a suspect, yet did not include it in his report. Counsel represented that appellant had been picked up two or three days later because he made an illegal left turn; given this new information, counsel argued, he should now be afforded the possibility of a suppression motion. Counsel accused Contreras of repeatedly committing perjury, and Bravo of concealing and falsifying information and of obstructing justice. Counsel represented that, had the information been provided, appellant would have taken a deal early on in the proceedings.
The trial court ascertained that, although defense counsel did not receive the CD of the March 2006 interview until the day before, he believed he had received Bravo’s report, dated March 24, 2006, which stated that Bravo had reinterviewed Contreras on March 12, 2006, had digitally recorded the interview and transferred it to a compact disc, and had booked the CD into the evidence locker at the Wasco substation. Counsel represented that, when he substituted into the case, he received approximately six binders’ worth of discovery and a box of discs, which he listened to and reviewed. Counsel related that the prosecutor had been very good about providing discovery, and it was possible defense counsel overlooked the report referencing the March 2006 interview. However, neither the prosecutor nor defense counsel realized counsel did not actually have that CD until the day before and, in fact, the prosecutor likewise was unaware of the CD until he spoke to Bravo then. When the prosecutor responded that Bravo’s report referencing the CD had been turned over in discovery on May 31, 2006, and that defense counsel did not have the CD because the prosecutor did not go and get it and turn it over, defense counsel stated, “I don’t give a darn about this tape,” then argued that the problem was Bravo’s omission, from his initial report, of the in-field identification trip and Contreras’s apparent statement that Sniper was the shooter. Counsel accused Bravo of lying and of omitting substantive, important information in his October 2005 report.
The prosecutor conceded that the original report should have included the in-field showup, but argued the omission was unimportant since appellant was not part of, or implicated by, the procedure. The prosecutor also conceded that if Contreras told Bravo that he had a moniker for the shooter, it should have been put in the report. The prosecutor argued, however, that a number of things about the report could be deemed sloppy, such as Bravo reporting the wrong incident date. The prosecutor suggested things should not be coming as a shock to defense counsel, as appellant’s picture was in a photographic lineup shown by Bravo three or four days after the shooting, and it was apparent the information had to have come from somewhere. In addition, Bravo testified at the preliminary hearing that he believed Contreras had told him he knew some of the perpetrators. The prosecutor argued that Bravo did not intentionally conceal information, and concluded that neither a mistrial nor a dismissal was warranted. Defense counsel responded that he was not accusing the prosecutor of malfeasance, and that, in fact, the prosecutor had been very generous and prompt with discovery. He conceded that the in-field showup produced negative results, but argued that omission of something as important as the fact Contreras identified Sniper as the shooter showed a total disregard for the truth and the law. Counsel further represented that appellant had gone from an offer of nine years to an offer of 30 years.
Based on the totality of the circumstances, the trial court found no effort by Bravo to conceal anything and no bad faith on his part, despite the fact his initial report contained important omissions. The court further found no bad faith on the part of the prosecutor. Accordingly, it denied the motions to dismiss and for mistrial.
Bravo subsequently testified that his recollection of where he got the name Sniper, prior to putting together the photographic lineups with Fleeman, was that somebody said it at the scene. Bravo believed it was Contreras, because only Contreras and another subject were in the area when Bravo talked to Contreras, and Bravo told the other subject to get back. Bravo agreed that the potential identity of the shooter was a significant fact in the investigation, but he did not mention it in the initial report regarding his conversation with Contreras because he did not know for sure if Contreras said it. When Bravo spoke to Contreras in March 2006, Contreras said he did not want anything done and should never have said anything. Bravo “[k]ind of coerced” Contreras into admitting he was the one who named Sniper on the night of the shooting. Bravo further testified that he did not discuss the events of the morning with Contreras and Serna while in the vehicle on the way to the in-field showup, nor did he ask Contreras while in the vehicle who shot him. Although the transcript of the March 2006 conversation may have given the impression that Contreras identified Sniper as the shooter while in the car, Bravo was simply using a police tactic to try to get Contreras to confirm he was the one who had said Sniper was the shooter. Bravo had no recollection of Contreras actually giving him Sniper’s name while in the vehicle. According to Bravo, the problem with mentioning Sniper in the original report was that, if Bravo reported, vaguely, that somebody said it was a sniper, his sergeant would have told him to find out who Sniper was. Bravo had tried to confirm the information with Contreras, but Contreras never answered his telephone calls.
B. Analysis
The burden of proving ineffective assistance of counsel is on appellant. (People v. Pope (1979) 23 Cal.3d 412, 425.) “To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings. [Citations.] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1003; see generally Strickland v. Washington (1984) 466 U.S. 668, 687-694.)
“A defendant who raises the issue on appeal must establish deficient performance based upon the four corners of the record.” (People v. Cunningham, supra, 25 Cal.4th at p. 1003.) The same is true of prejudice: the record must demonstrate a reasonable probability of a different result. (People v. Catlin (2001) 26 Cal.4th 81, 163.) Moreover, a defendant “‘must carry his burden of proving prejudice as a “demonstrable reality,” not simply speculation as to the effect of the errors or omissions of counsel.’ [Citation.]” (People v. McPeters (1991) 2 Cal.4th 1148, 1177.) It should go without saying, but apparently does not, that merely asserting prejudice does not establish it. “Finally, ‘there is no reason for a court deciding an ineffective assistance claim … to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, 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.’ (Strickland v. Washington, supra, 466 U.S. at p. 697.)” (People v. Cox (1991) 53 Cal.3d 618, 656.)
We turn first to the asserted discovery violation. “‘The prosecution has a duty under the Fourteenth Amendment’s due process clause to disclose evidence to a criminal defendant’ when the evidence is ‘both favorable to the defendant and material on either guilt or punishment.’ [Citations.] Evidence is ‘favorable’ if it hurts the prosecution or helps the defendant. [Citation.] ‘Evidence is “material” “only if there is a reasonable probability that, had [it] been disclosed to the defense, the result … would have been different.”’ [Citations.]” (People v. Earp (1999) 20 Cal.4th 826, 866; see, e.g., United States v. Bagley (1985) 473 U.S. 667, 674-678; Brady v. Maryland (1963) 373 U.S. 83, 87 (Brady); In re Sassounian (1995) 9 Cal.4th 535, 543-545.) “A prosecutor’s duty under Brady to disclose material exculpatory evidence applies to evidence the prosecutor, or prosecution team, knowingly possesses or has the right to possess. The prosecution team includes both investigative and prosecutorial agencies and personnel. [Citations.] The prosecution must disclose evidence that is actually or constructively in its possession or accessible to it. [Citation.] The important determination is whether the person or agency has been ‘acting on the government’s behalf’ [citation] or ‘assisting the government’s case’ [citation].” (People v. Jordan (2003) 108 Cal.App.4th 349, 358; accord, Youngblood v. West Virginia (2006) 547 U.S. 867, 869-870; Kyles v. Whitley (1995) 514 U.S. 419, 437.) “Moreover, the duty to disclose exists regardless of whether there has been a request by the accused, and the suppression of evidence that is materially favorable to the accused violates due process regardless of whether it was intentional, negligent, or inadvertent. [Citations.]” (In re Sodersten (2007) 146 Cal.App.4th 1163, 1225.)
Despite the foregoing, “evidence that is presented at trial is not considered suppressed, regardless of whether or not it had previously been disclosed during discovery. [Citations.]” (People v. Morrison (2004) 34 Cal.4th 698, 715.) This last sentence is dispositive of any claim of ineffective assistance of counsel with respect to what occurred at trial, insofar as disclosure of the Contreras-Bravo CD is concerned. No further claim of prosecutorial misconduct or malfeasance, or of a violation of due process, would have assisted appellant.
Turning to the issue of allegedly uncorrected testimony, “‘[u]nder well-established principles of due process, the prosecution cannot present evidence it knows is false and must correct any falsity of which it is aware in the evidence it presents, even if the false evidence was not intentionally submitted.’ [Citations.] Put another way, the prosecution has the duty to correct the testimony of its own witnesses that it knows, or should know, is false or misleading. [Citations.] This obligation applies to testimony whose false or misleading character would be evident in light of information known to the police involved in the criminal prosecution [citation], and applies even if the false or misleading testimony goes only to witness credibility [citations].” (People v. Morrison, supra, 34 Cal.4th at pp. 716-717; see, e.g., Giglio v. United States (1972) 405 U.S. 150, 153-154; Napue v. Illinois (1959) 360 U.S. 264, 269.)
As nearly as we can discern, appellant faults defense counsel for not objecting to the prosecutor’s failure to correct Contreras’s assertedly false and misleading testimony that he told Bravo, just following the shooting, that Sniper was the perpetrator. We are not sure why appellant says this testimony was false or misleading, as the evidence presented at trial was susceptible of the interpretation Contreras mentioned Sniper’s name just after the shooting. In any event, Contreras’s credibility was in shreds, given the number of times he admitted having lied. One more tatter cannot possibly have made a difference.
Appellant also says defense counsel should have objected to the prosecutor’s failure to correct Bravo’s testimony that Contreras admitted to him, during the March 2006 conversation that was recorded on the CD, that Contreras mentioned Sniper just after the shooting. Appellant points out that Bravo testified he stated Contreras told him it was Sniper, to which Contreras replied, “yeah,” whereas the transcript of the conversation does not show Contreras saying this.
Again, appellant fails to establish trial prejudice as a demonstrable reality. Whether Contreras mentioned Sniper during the investigation immediately following the shooting or whether Bravo got the name from someone else did not matter: authorities clearly obtained the moniker, put a face and true name to it, and obtained two positive eyewitness identifications within a matter of days. Defense counsel ably attacked the less-than-stellar investigation, and placed before the jury Bravo’s failure to include information concerning the perpetrator’s identity – significant information, as Bravo himself admitted – in his report for what defense counsel succeeded in implicitly attributing to laziness or incompetence. Moreover, as the transcript of the CD gives the impression Contreras implied, during the conversation, that Sniper was the perpetrator, a challenge to Bravo’s recollection of what was actually said would have had little, if any, effect.
Appellant makes a further claim that he was denied the effective assistance of counsel at the pleading and plea bargaining stage of proceedings. He says his attorney failed to obtain, investigate, and advise him concerning the CD, which led appellant to reject a favorable plea bargain.
Appellant’s argument is not a model of clarity. Given defense counsel’s argument in support of dismissal or mistrial, we believe appellant’s claim to be that, had he known Contreras identified him, he would have accepted a proffered plea bargain.
“[A] substantial portion of the obligation counsel owes is not directly connected with the trial but involves investigation and advice at pretrial and posttrial stages. [Citation.]” (People v. Pope, supra, 23 Cal.3d at p. 423.) “The pleading- and plea bargaining-stage of a criminal proceeding is a critical stage in the criminal process at which a defendant is entitled to the effective assistance of counsel guaranteed by the federal and California Constitutions. [Citations.]” (In re Alvernaz (1992) 2 Cal.4th 924, 933-934.) Where the ineffective assistance of counsel results in the defendant’s decision to plea bargain or to reject a proffered plea bargain and proceed to trial, “the defendant has suffered a constitutional violation giving rise to a claim for relief .… [Citations.]” (Id. at p. 934.) The violation is not remedied by the fact the defendant, having turned down a proffered plea bargain, subsequently receives a fair trial. (Id. at p. 936.)
In order to establish a claim of ineffective assistance of counsel in the context of rejection of a plea bargain, a defendant must establish the same two prongs – deficient performance and prejudice – as in any other context in which an ineffectiveness claim is made. (In re Alvernaz, supra, 2 Cal.4th at pp. 936-937.) With respect to the performance prong, “defense counsel must communicate accurately to a defendant the terms of any offer made by the prosecution, and inform the defendant of the consequences of rejecting it .… [A] defense attorney’s simple misjudgment as to the strength of the prosecution’s case, the chances of acquittal, or the sentence a defendant is likely to receive upon conviction, among other matters involving the exercise of counsel’s judgment, will not, without more, give rise to a claim of ineffective assistance of counsel. [Citations.]” (Id. at p. 937.) “To establish prejudice, a defendant must prove there is a reasonable probability that, but for counsel’s deficient performance, the defendant would have accepted the proffered plea bargain and that in turn it would have been approved by the trial court.” (Ibid.)
We need not (and do not) determine whether defense counsel’s performance was deficient, as appellant “has failed to sustain his burden on the issue of prejudice. [Citations.]” (In re Alvernaz, supra, 2 Cal.4th at p. 945.) The record suggests at least two different offers were made to appellant, and that defense counsel likely would have recommended a plea agreement had he been aware of the Contreras-Bravo CD or that Contreras may have named Sniper during the initial investigation. On the record before us, however, we simply cannot tell whether there is a reasonable probability appellant would have accepted a proffered plea bargain, or, instead, continued to pin his hopes on the ability of his cohorts to intimidate witnesses into silence. Thus, appellant’s claim fails. (See People v. Osband (1996) 13 Cal.4th 622, 665; compare People v. Snyder (1993) 14 Cal.App.4th 1166, 1171, 1177 [factual issues that could not be resolved on record on appeal to be resolved at evidentiary hearing where appellant filed petition for writ of habeas corpus that was consolidated with appeal], abrogated on other grounds in People v. Brown (1994) 8 Cal.4th 746, 749-750, 756.) The same is true with respect to appellant’s assertedly lost opportunity to move for suppression of evidence. (See People v. Wharton (1991) 53 Cal.3d 522, 576.)
V
CUMULATIVE ERROR
Appellant says he was prejudiced by cumulative errors, which violated his constitutional right to a fair trial. “We have rejected most of the claims on which [appellant] predicates this cumulative error argument, and as to the rest we conclude none, singly or in combination,” rendered his trial unfair or otherwise prejudiced him. (People v. Marshall (1996) 13 Cal.4th 799, 861, fn. 14.)
VI
USE OF JUVENILE ADJUDICATION AS STRIKE
Appellant contends the trial court erred by finding that his prior juvenile adjudication constituted a “strike” under the three strikes law and, as a result, doubling his minimum parole eligibility on count 1 from 15 years to 30 years. We disagree.
A. Background
The information alleged appellant was previously “convicted,” in Kern County Juvenile Court, of a prior felony offense, to wit, a violation of section 245, subdivision (a)(1), within the meaning of sections 667, subdivisions (c) through (j) and 1170.12, subdivisions (a) through (e). At the court trial on the issue, the prosecutor introduced various certified documents. These included:
· a juvenile wardship petition, filed in Kern County Superior Court, Juvenile Division, on August 18, 2004, alleging in count 1 that appellant, age 17, came within the jurisdiction of the juvenile court under Welfare and Institutions Code section 602 and under a previous order of the court in which the minor was named a ward of the court (Welf. & Inst. Code, § 777, subd. (a)(2)), by virtue of his commission, on or about July 25, 2004, of assault with a deadly weapon, to wit, a knife, in violation of section 245, subd. (a)(1), and further alleging that the offense was a serious felony within the meaning of section 1192.7, subdivision (c), and had an available confinement time of four years;
· a minute order from August 30, 2004, showing that appellant admitted count 1 of the petition and a violation of probation, with the remaining counts and enhancement allegations dismissed, and that appellant was found to be a person described by Welfare and Institutions Code sections 602 and 777, subdivision (a);
· an initialed advisal and waiver of rights form, which related that appellant was admitting, inter alia, count 1 without enhancement, and which listed the Penal Code sections for both the substantive offense and the serious felony finding;
· the probation officer’s report (RPO), which related that, during a fight between appellant, his two companions, and several victims, appellant began swinging a knife at one of the victims, but did not strike him; and
· the minute order for the September 14, 2004, disposition hearing, which contained findings that count 1 was a felony; that appellant was already a ward of the court and was continued on the terms of probation and committed to the Kern Crossroads facility; and that the available confinement time was four years six months, less credit for time served.
The trial court found proven all four requirements for use of a juvenile adjudication as a strike. Accordingly, it found the prior strike allegation to be true.
We enumerate and discuss those requirements, post.
B. Analysis
The three strikes law mandates longer prison sentences for those who commit a felony after having been previously convicted of serious and/or violent felonies. (See § 667, subd. (b).) Subdivision (d) of section 667 defines “a prior conviction of a felony” – i.e., a strike – as “[a]ny offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state” (§ 667, subd. (d)(1)) or “[a] conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison” (id., subd. (d)(2)). Subdivision (d) of the statute further provides:
“(3) A prior juvenile adjudication shall constitute a prior felony conviction for purposes of sentence enhancement if:
“(A) The juvenile was 16 years of age or older at the time he or she committed the prior offense.
“(B) The prior offense is listed in subdivision (b) of Section 707 of the Welfare and Institutions Code or described in paragraph (1) or (2) [of subdivision (d) of section 667] as a felony.
“(C) The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law.
“(D) The juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code.”
Henceforth, we refer to these requirements as paragraphs (A), (B), (C), and (D). Section 1170.12, subdivision (b)(3) contains the same prerequisites, albeit phrased slightly differently. Our discussion of section 667 applies equally to section 1170.12.
The first three requirements are not at issue in the present case. The documentary evidence established that appellant was born in February 1987, and so was 17 years old when he committed the prior offense; subdivision (c)(31) of section 1192.7 lists, as a serious felony, “assault with a deadly weapon … in violation of section 245”; and the juvenile court’s rulings establish it implicitly found appellant to be a fit and proper subject to be dealt with under the juvenile court law.
Subdivision (c)(23) of section 1192.7 lists, as a serious felony, “any felony in which the defendant personally used a dangerous or deadly weapon.” In the present case, the wardship petition neither alleged that appellant personally used a knife nor referenced subdivision (c)(23) of section 1192.7. The only evidence of personal use was the statement of one of the victims, as contained in the RPO upon derivation from crime reports. We do not rely on the RPO’s contents, as a question exists whether, and, if so, to what extent, that document may properly be considered in determining whether a prior offense was a serious or violent felony. (See People v. Trujillo (2006) 40 Cal.4th 165, 179 [concluding defendant’s statements, made after guilty plea accepted & contained in RPO prepared after guilty plea accepted, are not part of record of prior conviction because such statements do not reflect facts of offense for which defendant convicted]; People v. Reed (1996) 13 Cal.4th 217, 230 [declining to decide whether excerpt from RPO was part of record of conviction because excerpt was multiple hearsay that did not fall within recognized exception to hearsay rule]; People v. Williams (1990) 222 Cal.App.3d 911, 917-918 [concluding victim’s statements, reported by probation officer as related by investigating law enforcement officer, constituted multiple hearsay & improper basis for enhancement finding].) In the present case, the petition expressly alleged that appellant committed an assault with a deadly weapon, to wit, a knife, in violation of section 245, subdivision (a)(1), and appellant admitted the allegation as pleaded. This is sufficient to establish “an assault with a deadly weapon … in violation of section 245” for purposes of establishing a serious felony under section 1192.7, subdivision (c)(31). (See People v. Guerrero (1988) 44 Cal.3d 343, 345, 355.)
We turn now to the only real dispute: whether appellant was adjudged a ward of the juvenile court within the meaning of section 602 of the Welfare and Institutions Code because he committed an offense listed in section 707, subdivision (b) of that code. This is a requirement distinct from that set forth in paragraph (B); as the California Supreme Court has made clear, “we interpret paragraph (B) as setting out the list of prior juvenile offenses that will qualify as strikes and paragraph (D) as requiring, in addition, that in the prior juvenile proceeding giving rise to the qualifying adjudication the juvenile have been adjudged a ward of the court because of a Welfare and Institutions Code section 707(b) offense, whether or not that offense is the same as the offense currently alleged as a strike.” (People v. Garcia (1999) 21 Cal.4th 1, 6 (Garcia).) “By their terms, then, paragraph (B) sets out the list of qualifying priors, and paragraph (D) provides that those priors may be counted as strikes so long as the record of the prior juvenile proceeding shows that the adjudication of wardship was premised at least in part upon an offense listed in Welfare and Institutions Code section 707(b).” (Garcia, supra, at p. 8.)
Appellant was already a ward of the court when the assault allegation was adjudicated. In conjunction specifically with that charge, however, the petition alleged that he came within the juvenile court’s jurisdiction under Welfare and Institutions Code section 602, as well as a previous court order, and the juvenile court expressly found he was a person described by both Welfare and Institutions Code sections 602 and 777, subdivision (a). Appellant does not contend paragraph (D) applies only to an initial wardship adjudication, and indeed, such an interpretation would be illogical.
In the proceeding leading to appellant’s prior juvenile adjudication that was found to be a strike, the only felony offense for which appellant was adjudged a ward of the juvenile court was assault with a deadly weapon, in violation of section 245, subdivision (a)(1). If this offense is not listed in Welfare and Institutions Code section 707, subdivision (b), then, even though it is classified as serious and would, therefore, qualify as a strike under paragraph (B), the separate requirement of paragraph (D) would not be satisfied, and we would be compelled to conclude the trial court erred in sentencing appellant as a second striker. (Garcia, supra, 21 Cal.4th at p. 15.)
Welfare and Institutions Code section 707, subdivision (b) lists those offenses that have been deemed sufficiently serious, if committed by a minor 14 years of age or older, to give rise to a presumption that the minor is not a fit and proper subject to be dealt with under the juvenile court law. (See id., subd. (c); In re Sim J. (1995) 38 Cal.App.4th 94, 98; Sheila O. v. Superior Court (1981) 125 Cal.App.3d 812, 814.) Like section 1192.7, subdivision (c), it “includes both specific, enumerated crimes and more generic descriptions of criminal conduct.” (People v. Banuelos (2005) 130 Cal.App.4th 601, 604 [discussing § 1192.7, subd. (c)].) “Assault with a deadly weapon” is not listed, and there is no reference to section 245. However, subdivision (b)(14) of Welfare and Institutions Code section 707 lists “[a]ssault by any means of force likely to produce great bodily injury.” The question, then, is whether assault with a dangerous or deadly weapon – a knife – falls within this category.
We conclude the answer is yes. We do not view Welfare and Institutions Code section 707, subdivision (b)(14) as referring to a particular crime, viz., one specific means of violating section 245, subdivision (a)(1). Instead, we conclude the subdivision is a broad, generic description of criminal conduct. Taking into account the purpose of the statute, it clearly would make no sense to find presumptively unfit a minor who, for instance, beat someone with fists and feet (see People v. Aguilar (1997) 16 Cal.4th 1023, 1028 [assault with hands & feet can constitute assault by means of force likely to produce great bodily injury]), while not extending the same presumption to a minor who committed a more serious and potentially dangerous assault by, for example, attempting to stab someone.
Section 245, subdivision (a)(1) prescribes the punishment for “[a]ny person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury.…” An assault by means of force likely to produce great bodily injury, without more, does not constitute a strike. (People v. Rodriguez (1998) 17 Cal.4th 253, 261; People v. Banuelos, supra, 130 Cal.App.4th at p. 605.)
In a 1982 opinion not cited to us by either party, the Attorney General addressed the question whether every violation of section 245 is an offense described in Welfare and Institutions Code section 707, subdivision (b). In reaching an affirmative conclusion, the Attorney General reasoned: “The offense defined by subdivision (a) of Penal Code section 245 was described in People v. Perales (1904) 141 Cal. 581, 583 as follows: ‘The term “deadly weapon” has a precise, well-recognized meaning, and the nature of such weapon as being one likely to produce great bodily injury is well understood. It is expressly declared by the statute a specific means, the use of which in making an assault shall constitute an offense, and, therefore, under the general rule, an assault with it may be pleaded in the language of the statute. The term, however, “or by any means of force” likely to produce great bodily injury, immediately following in the section, is a general and comprehensive term designed to embrace many and various means or forces, which, aside from a deadly weapon or instrument, may be used in making an assault. What these means or forces may be, other than that they must be such as are likely to produce great bodily injury, the statute does not declare or define. As an example of such means it specifies a deadly weapon; as to any other means its language is general and indefinite.’ [Citation.] Thus the words ‘assault on the person of another … by any means of force likely to produce great bodily injury’ describes [sic] every offense embraced by the section though, as the court in Perales points out, not with sufficient particularity to meet pleading requirements. A ‘deadly weapon’ is one likely to produce death or great bodily injury. [Citation.] The words ‘with a deadly weapon or instrument’ in subdivision (a) simply describe one of the many possible ‘means of force likely to produce great bodily injury.’” (65 Ops.Cal.Atty.Gen. 359 (1982).)
In re Pedro C. (1989) 215 Cal.App.3d 174 (Pedro C.), the minor was alleged to have committed an assault with a deadly weapon, to wit, a motor vehicle, upon a peace officer, in violation of section 245, former subdivision (b). He admitted the allegation and was committed to what was then known as the California Youth Authority (CYA). At issue was the length of CYA’s jurisdiction – until age 21 or age 25 – which turned on whether the offense was one listed in Welfare and Institutions Code section 707, subdivision (b). (Pedro C., supra, at pp. 178, 182.) Because the Welfare and Institutions Code section 602 petition did not charge the minor with “‘[a]ssault by any means of force likely to produce great bodily injury,’” the referee concluded the offense did not fall within section 707, subdivision (b) of that code. (Pedro C., supra, at p. 182.) The appellate court disagreed, stating:
“The precise issue before us is thus whether [Welfare and Institutions Code] section 707(b)(14) embraces violations of Penal Code section 245, subdivision (b) which are charged as assaults with deadly weapons or instruments, rather than as assaults by means likely to produce great bodily injury. We conclude that it does.
“In determining whether [Welfare and Institutions Code] section 707, subdivision (b)(14) includes assault with a deadly weapon, our primary goal is to ascertain the intent of the Legislature. [Citation.] Section 707, subdivision (b) [of the Welfare and Institutions Code] was enacted in substantially its present form by Statutes 1976, chapter 1071, section 28.5. This subdivision contains descriptions of serious felonies, including murder [citation], assault with intent to murder [citation], and assault with a firearm or destructive device [citation]. Minors who have committed these offenses must be evaluated to determine if they are fit subjects to be dealt with under the Juvenile Court Law [citation]. If they are, and are subsequently committed to CYA, its jurisdiction over them extends, pursuant to [Welfare and Institutions Code] section 1769, subdivision (b), until their 25th birthday.
“Given this statutory scheme, for this court to determine that assault with a deadly weapon is not a [Welfare and Institutions Code] section 707, subdivision (b) offense would be to elevate form over substance. [Citation.] ‘“A deadly weapon is one likely to produce death or great bodily injury.”’ [Citations.] Necessarily, then, assault with a deadly weapon includes assault by means likely to produce great bodily injury.
“We therefore concur with the Attorney General’s conclusion [supra] that appellant’s Penal Code section 245, subdivision (b) offense falls within the purview of [Welfare and Institutions Code] section 707, subdivision (b) .…” (Pedro C., supra, at pp. 182-183.)
We agree with Pedro C. We recognize that the California Supreme Court has since observed that there are assaults involving weapons that are deadly per se, such as dirks and blackjacks, in which a conviction for aggravated assault may be “based on the mere character of the weapon. [Citations.]” (People v. Aguilar, supra, 16 Cal.4th at p. 1037, fn. 10.) We do not read this to mean, however, that assaults with inherently dangerous or deadly weapons (as opposed to assaults with instruments that may become deadly weapons, depending on how they are used) cannot fall within Welfare and Institutions Code section 707, subdivision (b)(14) because a conviction for use of such a weapon does not require the use of force likely to produce great bodily injury. The interpretation of subdivision (b)(14) of Welfare and Institutions Code section 707 was not before the Supreme Court in Aguilar; in addition, the court observed that “[b]oth the ‘weapon or instrument’ clause of [section 245] and the ‘force likely’ clause look to the probability or capability of producing great bodily injury” (Aguilar, supra, at p. 1033), and quoted with approval, at page 1035, the statement in People v. Davis (1996) 42 Cal.App.4th 806, 814-815, that “all aggravated assaults are ultimately determined based on the force likely to be applied against a person. [Citations.]” (Fn. omitted.)
Moreover, it has been held that a knife is not an inherently dangerous or deadly instrument as a matter of law. (People v. McCoy (1944) 25 Cal.2d 177, 188.) Here, the petition expressly alleged appellant committed an assault with a deadly weapon and specified that weapon was a knife. Appellant’s admission of the allegation thus constituted an admission the knife, as he used it, constituted a deadly weapon. Assault “requires an unlawful attempt to apply physical force and a present ability to apply such physical force. [Citation.]” (People v. Wright (1996) 52 Cal.App.4th 203, 209.) Where the attempt to apply physical force – which necessarily moves beyond mere threat, menace, or display of aggression and is instead “violence begun to be executed” (People v. Yslas (1865) 27 Cal. 630, 633; see People v. Wright, supra, at p. 211) – is accomplished by means of a deadly weapon, the resultant assault with a deadly weapon is necessarily subsumed into the general category of “[a]ssault by any means of force likely to produce great bodily injury,” as described in subdivision (b)(14) of Welfare and Institutions Code section 707. This being the case, appellant was properly sentenced as a second striker, based on his juvenile adjudication.
In re Jensen (2001) 92 Cal.App.4th 262, on which appellant relies, does not assist him. In that case, the jury found the defendant had suffered a strike based on a juvenile adjudication for voluntary manslaughter. (Id. at p. 264.) The appellate court found this was error: the juvenile adjudication did not meet the requirement of paragraph (D), because, at all pertinent times, voluntary manslaughter was not an offense listed in Welfare and Institutions Code section 707, subdivision (b). (Jensen, supra, at p. 266.) The court rejected the People’s argument that it should go behind the bare adjudication to determine from the entire record whether the defendant’s conduct, in addition to the adjudicated offense, amounted to an assault by any means of force likely to produce great bodily injury and was, accordingly, an offense listed in Welfare and Institutions Code section 707, subdivision (b)(14). The court reasoned that the juvenile petition did not allege such an assault, and no true finding was made on such an offense; hence, the defendant was not adjudged a ward of the court under Welfare and Institutions Code section 602 because he committed an assault by means of force likely to produce great bodily injury, as required by paragraph (D). (Jensen, supra, at p. 266.) In the present case, by contrast, we need not and do not go behind the bare adjudication in order to make our determination.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Hill, J. Kane, J.