Opinion
A098221.
11-6-2003
THE PEOPLE, Plaintiff and Respondent, v. CHEO POU SAECHAO, Defendant and Appellant.
I. INTRODUCTION
Cheo Pou Saechao appeals from a judgment of conviction for attempted first degree murder, assault with a firearm, and shooting at an inhabited dwelling/occupied building. He raises numerous issues concerning the effectiveness of counsel, jury instructions, evidentiary rulings, the sufficiency of the evidence, and sentencing. We affirm the judgment.
We will refer to participants and witnesses by their given names when necessary for the sake of clarity.
II. BACKGROUND
Cheo Pou was charged with attempted willful, deliberate, premeditated murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a)), two counts of assault with a firearm (§ 245, subd. (a)(2)), and shooting at an inhabited dwelling/occupied building (§ 246). The information also included allegations of personal firearm use and discharge (§§ 12022.53, subds. (b), (c) & (d), 12022.5, subd. (a)(1) [now subd. (a)]); and criminal street gang participation (§ 186.22, subd. (b)(1)). The evidence adduced at trial was wildly conflicting, with percipient witnesses contradicting each other and themselves. We summarize the relevant testimony as briefly as possible.
Unless otherwise indicated, all further statutory references are to the Penal Code.
On May 27, 2001, several hundred people attended a Mien cultural festival at a union hall on Hegenberger Road in Oakland. Twenty-one-year-old San Vang Saeyang (Scooby) attended the party with his friends Tungyio Saelee (Tony), Nai Saephan and John Saechao, all of whom were from Richmond. At the time, Scooby had belonged to a gang called Sons of Death (SOD) for seven years. He rode to the hall with Nai and his friend San, who claimed to be an SOD member; none of them had a gun or weapon of any kind. The group was sitting at a table drinking when Nai went out for a cigarette; Scooby and John went with him. Scooby did not recall whether Tony went with them. He did not know what happened to San, or remember whether he saw him again that day. Scooby remembered nothing thereafter until he woke up in the hospital, where he remained for about two months. According to expert medical testimony, Scooby arrived at the hospital in a coma. He may have had a stroke. He was operated on for a gunshot wound to the neck, but the bullet was not removed. He has had "memory issues" consistent with brain damage as a result of the shooting.
John went to the festival with his friend Tony, and another guy whose name he did not know, in Tonys car. John was not a gang member. At the hall, the three joined Nai and Scooby at a table. About an hour later, Cheo Pou approached the group as they were on their way outside for a cigarette and talked to Johns friends for a minute or two, but he did not hear the conversation. John had never seen Cheo Pou before that day, but he had a bad feeling because Richmond people were not welcome in Oakland, and he thought Cheo Pou was wearing gang colors. John did not see any of his friends with a gun that night. John followed his friends outside. As they approached the corner, John saw Cheo Pou with a small "goldish" automatic handgun and ran back into the building, followed by Tony; then the gun went off. John heard the gunshot, but did not actually see Cheo Pou shoot the gun. Scooby was closest to Cheo Pou. The glass door at the main entrance to the building shattered. John heard four more shots, one after another, from outside the building. John and Tony ran back to their table in the gymnasium. There were about 100 people in the building. About two minutes after the shooting stopped, John went outside, but seeing no one, he ran back into the building where he saw Scooby on the floor in the hallway next to the kitchen, bleeding. The person who had ridden to the party with John and Tony was in the crowd outside the building, but John did not see him again after the shots were fired.
Tony was not an SOD member, but his brother, two cousins and some friends were. Tony drove John and San to the cultural gathering; he did not know Sans full name. They sat at a table with Scooby and Nai, eating papaya salad and drinking beer. He had never seen Cheo Pou before that day. About an hour before the shooting, in a hallway by the kitchen, Cheo Pou asked Tony where he was from; he said Richmond. Cheo Pou asked if Tony was "banging anything;" he replied no. Cheo Pou followed Tony back to where his friends were and asked them the same question: "What do you bang?" Scooby "claimed" SOD. Tony testified that Cheo Pou then said, "Well, lets go outside," but admitted on cross-examination that he had not actually heard that himself. Tony and his friends went outside to smoke; Cheo Pou disappeared. As the group stood talking, Cheo Pou came from around the corner, said "What?" and started shooting. Tony could not tell whom the gun was pointed at, but Scooby was closest to Cheo Pou. Tony and John ran back inside the building. Cheo Pou shot twice more into the building, breaking the glass door. Hearing a commotion, Tony ran to where Scooby was lying on the floor in a hallway by the kitchen, surrounded by people, including San. Tony did not go back into the kitchen or see any of his friends do so. None of them had a gun, threatened Cheo Pou, or tried to hurt him.
Tony took this to mean, "What do I represent; what do, like, I claim, I guess."
Twenty-two-year-old Nai had not been an SOD member since he was 17. In 1997, he had been charged with two residential burglaries and placed on probation. On the evening in question, Nai drove Scooby to the event in his 1994 blue Acura Integra. Scooby left his black jacket in the car. At the party, they met up with Tony and John. When he first saw Cheo Pou, Nai noticed he was dressed in blue. Nai had never seen or heard of him before that day. As Nai and his friends were going out for a smoke, Cheo Pou approached and asked Tony where he was from (Richmond) and if he was an SOD member (no). He asked Scooby if he was an SOD member; when Scooby said yes, Cheo Pou said to meet him outside. Cheo Pou walked toward the side or back doors. Nai went out the front door, followed a minute or so later by Scooby, John and Tony. At about the same time, Nai saw Cheo Pou on the side of the building, coming around the corner, pointing a .22- or .25-caliber, chrome-colored gun at the group—John, Scooby, and Tony. Nai heard a gunshot, but did not actually see the weapon fired. He jumped over a wall and ducked down. Raising his head, he saw Cheo Pou shoot twice into the front of the building, breaking the glass doors. (Nai had forgotten to tell police he saw, as well as heard, these shots.) Neither Nai nor any of his friends had a gun. Cheo Pou walked away "like nothing happened;" an armed security guard ran after him. Nai heard one or two more shots, louder, as if from a bigger weapon. A minute or two later, he saw Cheo Pou drive out of the parking lot in a gold Acura Legend. Nai and his brother, who had been inside the hall, chased Cheo Pou (in Nais car with Nai at the wheel), trying to get his license plate number, but gave up when they saw the police arrive. Nais brother did not have a gun. Nai gave the police a statement. He testified he knew no one by the name of San and no such person rode with him that day. Later, he identified a photograph as someone named San, whom he had seen at the event, but whose last name he did not know. He denied it was his brother or a close friend. He did not remember seeing San with the others at the time of the shooting.
Twenty-year-old San Chiem Saechao testified that he went to the party with Tony and John; he also knew Scooby and Nai. Neither he nor any of his friends had a gun. He had never been a member of SOD, but his brother was. San Chiem had been sent to the California Youth Authority (CYA) for several years for participating in an attempted carjacking at the age of 15. Upon arriving at the party on the night of the shooting, the Richmond youths went inside and sat at a table eating, drinking and talking, while waiting for the performance to start. Cheo Pou caught San Chiems attention because he was going in and out of the party, returning the last time wearing a blue bandanna, like a "hard-core gangster." San Chiem had no previous contact with Cheo Pou; he did not recognize him from CYA. He never saw Cheo Pou with Tony or Scooby or anyone else that evening. San Chiem did not talk to Cheo Pou. Neither San Chiem nor any of his friends pulled a gun on him. At a certain point, San Chiems friends went outside to smoke; he stayed inside to watch Scoobys black jacket. A few minutes later, Scooby came in, grabbed the jacket and went back out again, followed by San Chiem. Right before he reached the exit, San Chiem heard a gunshot coming from the corner of the building. Stepping outside, he saw Cheo Pou at the corner holding a small silver gun pointed toward the people in front of him. San Chiem ran back inside; he heard one or two more shots as he ran into the kitchen. Standing near a sliding door opening to the outside, he saw Cheo Pou, chased by a security guard, run toward the back of the building and disappear into some bushes. A few minutes later, Cheo Pou walked back to his car, a goldish Acura Legend, and pulled away. San Chiem never saw Scooby after the shooting. He spoke briefly with Nai and his brother and learned that they had chased after Cheo Pou. In an interview with police that evening, San Chiem pretended to be "Nais younger brother, San," because he was afraid Cheo Pou would come after him. After Cheo Pou was apprehended, San Chiem identified him to police as the shooter. Later, at the Oakland Police Department, San Chiem gave a taped statement and had his picture taken, still claiming to be Nais brother San. This is the photograph identified by Nai (ante, p. 4), which is described in the exhibit list as "Xerox picture of San Saephan." About the time Cheo Pous trial was beginning, investigative officer Dale Jew contacted San Chiem, who volunteered his real name for the first time. That same day, the prosecutor told San Chiem he would be called as a witness. Until then, Nai and his brother had not known San Chiem told police he was San Saephan. San Chiem had been avoiding the police and prosecution because he was afraid to have his face seen in court.
Nai was a "good friend." San Chiem knew Tony and John fairly well. They knew him as San Saechao, but he wouldnt be surprised if they did not know his last name because while he had known Tony for years, it was only through his older brother, and he hardly knew John.
San Chiem was a "wannabe" gang member, i.e. someone who cannot get in.
Recalled after San Chiems testimony, Nai still denied knowing him well, and denied knowing his full name. He did not see San Chiem at the shooting, did not talk to him right after the shooting, and did not see him again for months thereafter. He did not know San Chiem was going to claim to be his brother. San Chiem did not pull a gun on Cheo Pou.
Cheo Pou went to the festival with his mother and brother. He was not in a gang at the time, but had been a member of the Oakland Mien Crips. He wore blue that day to show loyalty to the Crips. On his way to get a bottle of beer, he passed by Tony and another person. Tony asked where he was from. Cheo Pou replied that he was from East Oakland. Tony said he was from Richmond, "from SOD." Tony asked if Cheo Pou was "D" or "D-bo." When Cheo Pou said yes, Tony suggested they go outside. Two more people had "migrated" to the area. They all left together, going toward the front door. Cheo Pou went out the back door, and walked along the side of the building toward the front. He wanted to see what they had to say. After passing the side door, he saw Scooby, John, Tony, San Chiem and Nai coming around the corner. He knew Scooby, and knew he was SOD. He also knew San Chiem from CYA, where they had had "numerous physical altercations," and had seen Nai pass by his mothers house many times. Scooby tried to draw a gun (a black .380) on Cheo Pou. Cheo Pou hit Scooby in the mouth, and turned away. San Chiems gun went off. Cheo Pou did not see a gun in San Chiems hands until he heard a shot and turned around to look, but he testified that San Chiem had aimed toward him and Scooby. Scooby ran toward the front of the building; Cheo Pou pulled out his gun and fired toward San Chiem. Cheo Pous gun was a .357 caliber; he could not recall whether he had a .22 or a .25 with him that day. He had gone to get the gun from the car during the party, because he had seen someone with a gun and knew something was going to happen. Scooby was "gone," but his gun had fallen and Tony had picked it up. Cheo Pou fired five shots, none of them into the building. San Chiem fired two or three. Cheo Pou opened fire in self-defense; he did not intend to kill anyone. He was just trying to scare them away. The first three shots were fired "toward the air;" the last two at Nai because he had a gun. Cheo Pou thought the shots that broke the glass door came from inside. After the shooting, Cheo Pou walked away. A security guard followed him. He heard two more shots; he thought they came from the parking lot. Then he started running. He still had his gun when he got to the car. Later, he dumped it at a park.
Cheo Pou testified both that "[t]he second shot was fired by me," and that he did not fire until SanChiem had fired twice.
Cheo Pou was apprehended later that evening. A small, chrome .22 revolver containing five spent rounds was found in a canvas of the area around the building and along the path of Cheo Pous flight. A consent search of Cheo Pous bedroom yielded five .22 cartridges in a plastic bag under the mattress. They matched the casings in the weapon.
Cheo Pou admitted writing several letters from jail. In one he estimated he had a 60-to-65 percent chance of "release," because although a couple of people saw him pull the trigger, "that hoe cake ass fool, Scooby, cant remember anything." In another, he wrote, "So, how is Scooby doing after his misuneducated training day on May 27, 2001 [?]" and signed off, "Dont forget my name is D Dumbo, or should I say Scoobys nightmare, ha-ha-ha."
The jury heard a tape-recording of Oakland Police Investigator Brian Medeiross interview with Cheo Pou on the night of the incident. Cheo Pou told Madeiros that an hour and a half after he arrived at the event, he walked by a group of young Asians whom he did not know. They "instigated it" by asking each other, "Who does he think he is?" or "Who is that?" He felt they were trying to disrespect him. They said "all this little crazy shit," and told or asked him to go outside three times. Anticipating a fight, he went out the back door, while they went out the front. Asked what kind of weapon he was carrying, Cheo Pou first said he did not know, then "a gun" (whose caliber he forgot), and finally a gray .22 with five rounds. Outside, he saw the four youths by the front door, coming toward him. One of them tried to pull a gun on him (a black .380), so he "did what I had to do," shot his gun in the air. Then he went to his car and left. His gun fell out of his pocket while he was trying to climb over a gate. He did not know anyone had been shot and injured. He heard gunshots but did not see anyone shoot at him. He did see the glass doors shatter. Cheo Pou said he was wearing blue only because it is his favorite color, but later admitted it was out of loyalty to the Crips. Reminded that he had said earlier that he shot at the group of young Asians, Cheo Pou said he shot at them before they could shoot him. He was trying to defend himself, not to kill anyone. He could have just left by the back door, but he wanted to see what they were talking about. He did not recall if he shot the person trying to get his gun out, but he knew he was shooting at one of the four.
Bystander Meuy Yien Saelee testified that after she heard breaking glass, she saw a man with a gun run into the kitchen and hide under a table. He was wearing a black jacket. Bystander San Chan Saichow testified that while the security guard was chasing Cheo Pou, he saw an Asian man get out of the drivers side of a blue or green Honda Civic or Accord holding a gun. He did not fire any shots. Someone was sitting in the passenger side. San Chan went inside, came back out, and saw the Honda take off after Cheo Pou, but he did not know if the same people were in the car.
The jury found Cheo Pou guilty as charged, and the court sentenced him to a total of 56 years, 4 months to life in prison. Cheo Pou filed a timely notice of appeal.
The sentence was calculated as follows:
(1) concurrent indeterminate terms of life with possibility of parole (attempted murder of Scooby) and twenty-five years to life (firearm/great bodily injury enhancement); (2) consecutive three-year midterm (assault with firearm on Tony), ten-year firearm enhancement, ten-year gang enhancement; (3) consecutive one year (assault with firearm on John), three years, four months gang enhancement, one year, four months firearm enhancement; (4) consecutive one year, eight months (shooting into occupied building), one year gang enhancement.
III. DISCUSSION
A. Gang Enhancement Findings
Cheo Pou attacks the jurys gang enhancement findings on several grounds, none of them meritorious.
1. Ineffective Assistance of Counsel: Miranda/Massiah Violations
First he contends the findings were based on inadmissible statements that his counsel incompetently failed to challenge. The testimony he believes to have been objectionable is that of Alameda County Sheriffs Deputy Lauren Tucker: On June 12, 2001, while he was incarcerated in the Santa Rita jail, Tucker asked Cheo Pou if he had any gang affiliation and he said he was a member of Asian Crips Everywhere (ACE). She had been asked to do this, and immediately reported the conversation to Officer Robert Chan by telephone. On October 7, Cheo Pou approached Tucker and said he was not ACE, but Oaktown Crips. Tucker also testified that during Cheo Pous initial intake, another officer had written down, "Hes an Asian Crips," and noted an "O.M.C." tattoo.
Cheo Pou contends these two admissions of gang membership were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (custodial interrogation without proper warnings) and Massiah v. United States (1964) 377 U.S. 201 (questioning represented defendant without notifying attorney). Counsels failure to seek to exclude his statements was prejudicial, he argues, because without them there was insufficient evidence to support the jurys gang enhancement findings.
The Attorney General points out that Cheo Pous contentions rely on facts not in the record before us, i.e., he cites nothing in the record to substantiate his claim that he was not given timely prophylactic warnings and/or that his attorney was not notified before he was questioned by Deputy Tucker. Nor does he cite authority for his suggestion that we rely on facts he says "may reasonably be inferred" from the records silence. Thus, the claim of ineffective assistance "must be raised, if at all, by petition for writ of habeas corpus rather than on appeal" (People v. Waidla (2000) 22 Cal.4th 690, 743-744), unless we can determine from the record that any deficiency in counsels performance was harmless (People v. Mayfield (1997) 14 Cal.4th 668, 784 (Mayfield)), i.e., that a more favorable result was not reasonably probable absent counsels omission (People v. Dennis (1998) 17 Cal.4th 468, 540-541 (Dennis)).
Tuckers testimony was elicited after Cheo Pou testified that he had once been a member of the Oakland Mien Crips, but was not a member of any gang at the time of the shooting. Since the challenged statements were admissible for impeachment purposes (Harris v. New York (1971) 401 U.S. 222, 224-226; People v. Brown (1996) 42 Cal.App.4th 461, 473-474) even if they were obtained in violation of Miranda and/or Massiah, any objection would not have been sustained, and failure to object did not constitute ineffective assistance.
Moreover, even if Tuckers testimony were introduced in the prosecutors case-in-chief, as it arguably was through Officer Chans reliance, in part, on her report of Cheo Pous statements as one basis for his opinion that Cheo Pou was an ACE member, and even if counsel had successfully challenged their admission (but see Evid. Code, § 801, subd. (b) [expert opinion may be based on otherwise inadmissible evidence]), there was still sufficient evidence to support the jurys gang enhancement findings. In addition to the numerous references to gangs, Crips, colors, SOD, etc. throughout the witnesses testimony about events leading up to the shooting, on August 3, 2001, self-admitted ACE member, Mark Molysis, told Chan that Cheo Pou was an ACE member, and in a letter from jail, Cheo Pou referred to someone as his "ACE homey." Chan said "homey" means partner, good friend, or buddy.
2. Primary Activities
The California Street Terrorism Enforcement and Prevention (STEP) Act (§ 186.20 et seq.; see People v. Sengpadychith (2001) 26 Cal.4th 316, 319 (Sengpadychith)) mandates a sentence enhancement for "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1), italics added.) A "criminal street gang" is "any ongoing organization, association or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, of subdivision (e), . . . and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (§ 186.22, subd. (f), italics added.) One of the 25 enumerated offenses is, "Shooting at an inhabited dwelling or occupied motor vehicle, as defined in Section 246." (§ 186.22, subd. (e)(5), italics added.) Section 246 punishes any person who "willfully discharge[s] a firearm at an inhabited dwelling house, occupied building, occupied motor vehicle, occupied aircraft, inhabited housecar . . . or inhabited camper . . . ." The statue defines "inhabited" as "currently being used for dwelling purposes, whether occupied or not." (Ibid.)
In this case, the trial court delivered a special instruction requested by the prosecution, in which "criminal street gang" was defined as "any ongoing organization, association or group . . . having as one of its primary activities the commission or attempted commission of one or more of the following offenses: [¶] 1. Assault with a deadly weapon or by means of force likely to produce great bodily injury, as defined in Penal Code section 245; [¶] 2. Unlawful homicide or manslaughter, as defined in Penal Code section 187 or 192; [¶] 3. Shooting at an occupied building, as defined in Penal Code section 246; [¶] 4. Burglary, as defined in Penal Code section 459." (Italics added.)
a. Instructional Error
Cheo Pou contends the foregoing instruction was erroneous for two reasons.
The Attorney General does not dispute Cheo Pous assertion that the issue is cognizable on appeal despite the lack of objection below.
(1) Failure to define "primary activities"
"As a general rule, in the absence of a request for amplification, the language of a statute defining a crime or defense usually is an appropriate basis for an instruction. If a statutory word or phrase is commonly understood and is not used in a technical sense, the court need not give any sua sponte instruction as to its meaning. If, however, a word or phrase is used in a technical sense differing from its commonly understood meaning, clarifying instructions are appropriate and should be given on the courts own motion. [Citations.]" (People v. Rodriguez (2002) 28 Cal.4th 543, 546-547 (Rodriguez).) "A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning. [Citation.]" (People v. Estrada (1995) 11 Cal.4th 568, 574 (Estrada).)
Cheo Pous contention that the court had a sua sponte duty to define the phrase "primary activities" in the gang enhancement statute is based on his reading of Sengpadychith, supra, 26 Cal.4th 316, in which the court held that a jury may consider currently charged crimes as well as prior conduct as evidence of a groups primary activities (id. at pp. 320, 322-323), and announced the harmless error standard governing a trial courts failure to instruct on primary activities (id. at pp. 320-321, 324-327). In Sengpadychith, the trial court failed to include the primary activities element in its gang enhancement instruction, but the appellate court found the error harmless under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), concluding the evidence established the gangs primary activity was committing "gang crimes," without identifying any specific felonies. (Sengpadychith, supra, at pp. 321, 322, 329.) The Sengpadychith court remanded the matter for redetermination of whether the trial courts instructional error was prejudicial or harmless, and also asked the Court of Appeal to reconsider the defendants claim that the evidence was insufficient to support a finding that his gang was primarily engaged in the commission of one or more of the specified offenses. (Id. at pp. 328-329.)
Presumably to guide the Court of Appeal on remand, the Supreme Court noted that evidence of past or present criminal acts listed in section 186.22, subdivision (e), without more, would "[n]ot necessarily" be sufficient to prove the groups primary activities. (Sengpadychith, supra, 26 Cal.4th at p. 323.) Citing a dictionary definition of the word "primary," the court noted, "The phrase `primary activities, as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the groups `chief or `principal occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the groups members." (Ibid., italics added; this language has since been incorporated into CALJIC No. 17.24.2, the standard instruction on felonies committed for the benefit of street gangs.) "Sufficient proof of a gangs primary activities," the court added, "might consist of evidence that the groups members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony, as occurred in [People v.] Gardeley [1996] 14 Cal.4th 605 [Gardeley]." (Sengpadychith, supra, at p. 324.)
Thus, the portion of the Sengpadychith opinion on which Cheo Pou relies offers evidentiary, not instructional, guidance. It suggests what kind of evidence might satisfy the primary activities requirement; it does not require a court, sua sponte, to clarify the meaning of "primary activities" in jury instructions. As indicated by the courts reliance on a dictionary definition, the words are not used "in a technical sense differing from [their] commonly understood meaning" (Rodriguez, supra, 28 Cal.4th at p. 547), nor does the statutory phrase have "a definition that differs from its nonlegal meaning" (Estrada, supra, 11 Cal.4th at p. 574). Both "chief" and "principal" are among the most common synonyms of "primary" (Rogets II The New Thesaurus (3d ed. 1995) p. 766), from which it follows "necessarily" that the phrase does not include "occasional" gang activity. Thus, the trial court had no sua sponte duty to include the Sengpadychith language in its gang enhancement instruction.
(2) Shooting into an occupied building
The court did err, however, in instructing the jury that it could consider shooting at an inhabited or occupied building as a primary activity of the ACE. While section 246 punishes discharging a firearm at any of six specified targets, including an inhabited dwelling house, an occupied motor vehicle and an occupied building, section 186.22, subdivision (e)(5) is expressly limited to shooting at an inhabited dwelling or occupied motor vehicle. (See ante, p. 11.)
As indicated (ante, p. 11), the written instruction referred to "an occupied building," but the courts oral instruction used the phrase "inhabited or occupied building."
"Our task in construing the STEP Act, as with any statute, is to ascertain and effectuate legislative intent. [Citations.] We turn first to the words of the statute themselves, recognizing that `they generally provide the most reliable indicator of legislative intent. [Citations.]" (Gardeley, supra, 14 Cal.4th at p. 621.) Since the language of section 186.22, subdivision (e)(5) is clear and unambiguous, susceptible of only one meaning, there is no need for judicial construction. (Gardeley, supra, at p. 621.) Had the legislature wished to include shooting at an occupied building in subdivision (e)(5), it could easily have done so, but it did not.
The trial courts instructional error was, however, harmless. In People v. Green (1980) 27 Cal.3d 1, 69 (Green), the court held that "when the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand." In People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129 (Guiton), the court construed Green as applying only to cases of legal insufficiency, holding that where, as here, "the inadequacy is legal, not merely factual, that is, when the facts do not state a crime under the applicable statute . . . the Green rule requiring reversal applies, absent a basis in the record to find that the verdict was actually based on a valid ground." (Fn. omitted.) While not called upon to decide the exact standard of review in cases governed by Green, the Guiton court noted that the general rule of reversal has not been universal. "One way of finding this kind of error harmless has long been recognized. Sometimes it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory. [Citations.]" (Guiton, supra, 4 Cal.4th at p. 1130.) "There may be additional ways by which a court can determine that error in the Green situation is harmless. We leave the question to future cases." (Id. at p. 1131.)
In this case, the trial court offered the jury four possible offenses—assault with a deadly weapon, homicide/manslaughter, shooting at an occupied building, burglary—with which to satisfy the primary activity requirement of the gang enhancement statute (ante, p. 11), only one of which (shooting at an occupied building) was a legally inadequate basis for the finding. The only relevant evidence was offered by Officer Chan, who testified as a gang expert that one of ACEs primary activities was the commission or attempted commission of burglary (based on evidence of an ACE members burglary conviction), and that it was also "involved with" solicitation, conspiracy to commit murder, assault with a deadly weapon (one of the currently charged crimes), robbery, unlawful possession of firearms, and narcotics dealing. Chan did not identify shooting at an occupied building as a primary activity or even an activity with which ACE was involved. Therefore, we are confident that no juror could have concluded that shooting at an occupied building, but not assault with a deadly weapon or burglary, was a primary activity of ACE. Since the jury needed to find only that one of the four listed offenses was a primary activity, the trial courts erroneous inclusion of shooting into an occupied building on the list was harmless under Green and Guiton.
b. Sufficiency of the Evidence
Finally, Cheo Pou contends there was insufficient evidence of ACEs primary activities to support the jurys finding on the gang enhancement allegation. "In assessing a sufficiency-of-evidence argument on appeal, we review the entire record in the light most favorable to the prevailing party to determine whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the [allegation true] beyond a reasonable doubt. [Citations.] We draw all reasonable inferences in support of the judgment. [Citation.]" (People v. Wader (1993) 5 Cal.4th 610, 640.)
As indicated above, Officer Chan testified as an expert witness on ACEs primary activities. The jury was instructed on how to evaluate expert testimony: "In determining what weight to give to any opinion expressed by an expert witness, you should consider the qualifications and believability of the witness, the facts or materials upon which each opinion is based, and the reasons for each opinion. [¶] An opinion is only as good as the facts and reasons on which it is based. If you find that any fact has not been proved, or has been disproved, you must consider that in determining the value of the opinion. Likewise, you must consider the strengths and weaknesses of the reasons on which it is based. [¶] You are not bound by an opinion. Give each opinion the weight you find it deserves. You may disregard any opinion if you find it to be unreasonable." (CALJIC No. 2.80.)
Expert testimony can furnish sufficient proof of a gangs primary activities. (Sengpadychith, supra, 26 Cal.4th at p. 324.) In Gardeley, supra, 14 Cal.4th at page 620, for example, the "gang expert based his opinion on conversations he had with Gardeley and fellow gang members, and on `his personal investigations of hundreds of crimes committed by gang members, together with information from colleagues in his own police department and other law enforcement agencies. [Citation.]" (Sengpadychith, supra, at p. 324.)
In this case, Officer Chan testified he had been an Oakland police officer for almost ten years—five years on patrol, then in the crime prevention unit, then the gang unit, where he specialized in Asian gangs in Oakland. He had received both formal and on-the-job training, and trained other officers as well. He had personally spoken to at least 50 Asian gang members and arrested at least 40. He had been qualified as an expert in the culture, habits, trends and customs of Asian gangs in Oakland at the preliminary hearing in this case. Cheo Pou did not challenge the trial courts finding that Chan qualified as an expert in the investigation of gang-related crime, specifically involving Asian gangs in Oakland.
Chan further testified he had patrolled areas ACE frequented for nearly 10 years, assisted senior gang investigators in investigations of Asian crime, spoken to members of the community, to ACE members, members of other gangs, "persons in the area where they live," victims and witnesses of ACE crimes. This is, as the Attorney General notes, "precisely the sort [of testimony] approved" in Gardeley and Sengpadychith.
In addition to his general expertise, Chan expressly based his opinion that burglary was the ACEs primary activity on documentary evidence of an admitted ACE members November 1998 burglary conviction. The jury could also consider the shooting incident underlying the charged crimes—two counts of assault with a firearm—on the issue of the gangs primary activities. (Sengpadychith, supra, 26 Cal.4th at p. 320, 322-323.)
We conclude there was sufficient "primary activity" evidence to support the jurys gang enhancement findings.
B. Sufficiency of the Evidence: Assault With A Firearm
Count three of the second amended information charged Cheo Pou with assault with a firearm against John Chiew Saechao, with gang enhancement and firearm use clauses (§§ 245, subd. (a)(2), 186.22, subd. (b)(1), 12022.5, subd. (a)(1)). The trial court denied Cheo Pous motion for directed verdict of acquittal on this count (§ 1118.1), and the jury found him guilty as charged. On appeal, Cheo Pou contends there was insufficient evidence to support the verdict.
As previously noted (ante, p. 15), "To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Kipp (2001) 26 Cal.4th 1100, 1128.)
"An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§240.) It "does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault [requires only] an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (People v. Williams (2001) 26 Cal.4th 779, 790.) Cheo Pou contends there was no substantial evidence that he "targeted" John or that John would probably be injured by his conduct.
The testimony of participants and eyewitnesses (ante, pp. 2-8) produced conflicting evidence about the details of the shooting. John testified that when he saw Cheo Pous gun, he ran back into the building. While he was running, he heard the first shot. After he was inside, he heard four more shots coming from the front of the building; the glass door shattered. He ran back to his table in the gym.
Nai saw Scooby, Tony and John come out of the building. Cheo Pou pointed a gun toward "the crowd" walking out of the building, but Nai could not tell if it was pointed at a specific person. (Later, Nai testified the gun was pointed at the group: John, Scooby and Tony.) After the first shot, Nai saw Cheo Pou standing in front of the doors, shooting inside; the glass broke. Nai heard two shots.
San Chan heard a "bang." He turned and saw three or four guys running toward the building, followed closely by a man with a gun, shooting at them. The man was aiming at the guys he was chasing into the building. When they got inside, he shot into the closed door and the glass came down.
The prosecutor argued that Cheo Pou "shot Scooby first and then continued firing at the victims friends as they ran away." The testimony set out above certainly supports such a finding. Cheo Pou asserts that a "more reasonable interpretation" is that he continued to shoot at Scooby as he ran into the building. As has often been noted, however, "If the findings are reasonable and supported by the evidence, reversal is not warranted because a contrary finding might also be reasonable. [Citation.]" (People v. Rushing (1989) 209 Cal.App.3d 618, 621.) We may conclude there is no substantial evidence in support of conviction only if it can be said that on the evidence presented no reasonable factfinder could have found the defendant guilty. (People v. Nguyen (1993) 21 Cal.App.4th 518, 528-529.)
This case is quite similar to People v. Lee (1994) 28 Cal.App.4th 1724 (Lee), in which a defendant convicted of attempted murder of Young and assault with a firearm against Green (id. at p. 1728), contended there was no evidence he attempted to shoot Green, but rather, the evidence showed he intended to shoot only Young (id. at p. 1734). Noting that the defendant was aware of the presence of a group, including Green, near Young, as they moved toward the parking lot where the shooting occurred, the court found sufficient evidence to sustain the conviction: "The jury could reasonably conclude that Lee intended to harm not only Young, but also some or all of his companions." (Id. at pp. 1730, 1735.) Here, as in Lee (id. at p. 1736), the jury could reasonably conclude from the evidence either that Cheo Pou was firing at Scooby and John, or that he was simply firing at the group, hoping to kill someone.
C. Exclusion of Impeachment Evidence
Cheo Pou next contends the trial court erred in refusing to allow him to impeach Scooby and John with evidence of their prior criminal conduct.
The prosecutor moved before trial to exclude juvenile and other criminal records of certain witnesses, including Nai and John (but not Scooby), principally on the ground that the evidence was more prejudicial than probative (Evid. Code, § 352). The court reserved ruling as to Nai, and granted the motion as to John. The next day, the court ruled that under People v. Sanchez (1985) 170 Cal.App.3d 216, juvenile findings are inadmissible for impeachment.
During trial, however, the court revisited its ruling after the prosecutor brought to its attention the Lee case (supra, 28 Cal.App.4th 1724), in which the court held at page 1740, "the prosecution may introduce prior conduct evincing moral turpitude even if such conduct was the subject of a juvenile adjudication, subject, of course, to the restrictions imposed under Evidence Code section 352 and other applicable evidentiary limitations." The court reversed its earlier ruling, saying it would subsequently address the affect of this reversal on witnesses who had already testified, among whom were Scooby, Nai and John.
After the prosecution rested, it provided the court with the relevant juvenile records for in camera inspection. After reviewing the records (which defense counsel now saw for the first time), the court permitted reference to the conduct underlying Nais two juvenile burglary findings (§ 459). After a short hearing to determine certain foundational facts (Evid. Code, § 402), Nai was recalled and testified accordingly. (See ante, p. 3.)
Johns record reflected a 1998 juvenile court petition alleging auto theft (Veh. Code, § 10851), disposition unknown, and a 1999 burglary arrest (§ 459) "closed at in-take," in which the disposition was released to a parent, suggesting to the court that there was no finding. The court excluded both incidents, explaining it was disinclined, on Evidence Code section 352 grounds, to admit the auto theft even if there were a finding, because although it was "certainly not commendable conduct," it did not bear significantly on the issues in this case. As to the burglary, the court did not think the conduct was admissible under Lee without a finding, and in addition, under section 352, its probative value was not worth the excess consumption of time, since there was no documentation with which to meet a possible denial of the conduct.
Scoobys record showed he had been arrested in 1995 for auto theft (Veh. Code, § 10851) and two counts of receiving stolen property (§ 496), resulting in a Welfare and Institutions Code section 777 petition (modification of prior order after violation). The court excluded the priors "on section 352 grounds, lack of probative value," observing that since Scooby disclaimed any meaningful information about events immediately following the shooting, and admitted his gang membership, "Im not sure theres much testimony out there to impeach in that respect."
Cheo Pou contends the trial courts rulings violated his due process and confrontation rights (U.S. Const., 6th & 14th Amends.). Our Supreme Court has repeatedly rejected such constitutional claims. (See, e.g., People v. Clair (1992) 2 Cal.4th 629, 656, fn. 3 (Clair); People v. Cudjo (1993) 6 Cal.4th 585, 611-612 (Cudjo); People v. Frye (1998) 18 Cal.4th 894, 946.) We review the exclusion of evidence under section 352 for abuse of discretion. (Clair, supra, at p. 655.) "[T]he latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues." (People v. Wheeler (1992) 4 Cal.4th 284, 296.) We need not decide, however, whether the trial court abused its broad discretion in this case, for any error is harmless. Cheo Pou does not assert, much less demonstrate, a reasonable probability that the verdict was affected by the exclusion of evidence of Johns and Scoobys juvenile court records. (See Cudjo, supra, at p. 611, citing Watson, supra, 46 Cal.2d at p. 836.)
D. Ineffective Assistance of Counsel
Cheo Pou "raises an array of claims of ineffective assistance of counsel. The standards applicable to these claims are familiar. Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsels performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsels deficient representation prejudiced the defendant, i.e., there is a `reasonable probability that, but for counsels failings, defendant would have obtained a more favorable result. [Citations.] A `reasonable probability is one that is enough to undermine confidence in the outcome. [Citations.]" (Dennis, supra, 17 Cal.4th at pp. 540-541.) Our review is deferential, based on "a strong presumption that counsels acts were within the wide range of reasonable professional assistance. [Citation.]" (Id. at p. 541.) "Reviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsels omissions." (People v. Lucas (1995) 12 Cal.4th 415, 442.) Defendants burden to demonstrate the inadequacy of trial counsel is, therefore, difficult to carry on direct appeal. (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1447-1448.)
1. Three Omissions
Cheo Pou objects to three omissions that, he contends, rendered counsel ineffective. First, he claims counsel failed to elicit "helpful testimony" from Tony. Nai, John, San Chiem, and Tony all testified at trial that they had never seen Cheo Pou before the day of the incident. Cheo Pou testified that Tony asked if he was "D-Bo," and that he knew San Chiem from CYA, Nai by sight, and Scooby through an acquaintance. In a statement given to police right after the incident, but not placed in evidence, Tony had written, "Some of my friends know this guy as `Dumbo. " Cheo Pou claims this statement corroborated his testimony and impeached Tonys friends, lending credence to his testimony of prior altercations with San Chiem, thus explaining why Sam Chiem "would harass, challenge, and threaten" him.
Cheo Pou reads too much into Tonys statement to police, which was not, on its face, inconsistent with what he and the other participants said at trial. Tony did not identify the "friends" who knew Cheo Pou as Dumbo, and there was no evidence he meant Nai or John or San Chiem or Scooby. Thus, Tonys testimony in this regard would not necessarily have been helpful to impeach anyone, and it can hardly be said that counsels failure to initiate this line of questioning fell outside the wide range of reasonable professional assistance. Moreover, the prosecutor admitted his witnesses had engaged in "various falsehoods," so even if counsel could have established that they lied specifically about previously knowing Cheo Pou, it is not reasonably probable the jury would then have concluded that San Chiem started the fight.
Next, Cheo Pou contends counsel failed to object to speculative testimony. The colloquy in question concerned the moment of confrontation between Cheo Pou and the other participants. The prosecutor asked John why he thought Cheo Pou was already there by the time the others got to the corner, to which John responded: "Because—because the gun—gun was out when I seen him, when I took a look to the corner; and then it went off. So, it was really planned out, I guess." (Italics added.)
Cheo Pou asserts the italicized testimony was speculative and not based on personal knowledge (Evid. Code, § 702), but it is clear that John was offering an opinion, not asserting a fact. "A lay witness may testify to an opinion if it is rationally based on the witnesss perception and if it is helpful to a clear understanding of his testimony [Citation.]" (People v. Farnam (2002) 28 Cal.4th 107, 153.) John was trying to explain what made him think Cheo Pou was already at the corner when the others arrived, not claiming to know what was in Cheo Pous mind. Although premeditation was an issue, Johns off-hand conjecture can hardly be called "highly prejudicial." It is not reasonably probable that had counsel objected to the remark, the jury would have returned a more favorable verdict.
Finally, Cheo Pou asserts his counsel failed to object to two instances of prosecutorial misconduct in closing argument. "Prosecutors have wide latitude to discuss and draw inferences from the evidence at trial. [Citation.] Whether the inferences the prosecutor draws are reasonable is for the jury to decide." (Dennis, supra, 17 Cal.4th at p. 522.) "Ultimately, the test for misconduct is whether the prosecutor has employed deceptive or reprehensible methods to persuade . . . the jury. [Citation.]" (Ibid.) Although Cheo Pou singles out a few sentences, we must view the challenged statements in the context of the whole argument (ibid.), which comprises 49 pages of reporters transcript. "Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]" (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
Cheo Pou contends his counsel should have objected when the prosecutor told the jury, "None of the witnesses have really changed their testimony about what happened at the actual shooting from when they gave their statements to the police and when they testified at the preliminary hearing," because neither the witnesses statements to police nor their preliminary hearing testimony were entered into evidence, though numerous portions were used to impeach their trial testimony. "It is misconduct . . . to suggest to the jury in arguing the veracity of a witness that the prosecutor has information undisclosed to the trier of fact bearing on the issue of credibility, veracity or guilt. The danger in such remarks is that the jury will believe that inculpatory evidence, known only to the prosecution, has been withheld from them. [Citations.] But that is not what occurred in this case." (People v. Padilla (1995) 11 Cal.4th 891, 946.) Rather than "vouching for the reliability of his witnesses," as Cheo Pou suggests, the prosecutor was trying to convince the jury that the inconsistencies in their statements, were not really material. "[T]his he was entitled to do, and no basis for a defense objection appears." (Ibid.)
Cheo Pou also claims the prosecutor improperly relied on his personal professional experience when he argued, "Youve heard the defense story; the testimony of the defendant who came up to the stand, took the oath with a straight face, and then proceeded to tell you one of the most bald-faced, self-serving piece of fiction I have ever seen as a prosecutor." (Italics added.) "Harsh and vivid attacks on the credibility of opposing witnesses are permitted, and counsel can argue from the evidence that a witnesss testimony is unsound, unbelievable, or even a patent lie. [Citation.]" (Dennis, supra, 17 Cal.4th at p. 522.) In People v. Rich (1988) 45 Cal.3d 1036, 1092, for example, the court found the prosecutors statement, "`I have never seen deliberation and premeditation like that "to be "nothing more than a fair comment on the evidence [citation] and vigorous argument . . . ." And in People v. Stansbury (1993) 4 Cal.4th 1017, 1057, the court considered "not inappropriate" the prosecutors comment, "`thats the best case Ive ever seen in any case Ive ever prosecuted of intentional misrepresentation and consciousness of guilt." Judged against those cases, the prosecutors characterization of Cheo Pous testimony was a permissible comment on the evidence.
2. Closing Argument
Cheo Pou also challenges the effectiveness of counsels closing argument. Specifically, he contends that: (1) counsel failed to marshal facts that might suggest someone other than Cheo Pou (perhaps San Chiem) shot Scooby; (2) counsel rejected the theory of self-defense in favor of imperfect self-defense; (3) counsel failed to mention "the strongest defense evidence," e.g., there were discrepancies in the testimony about San Chiems identity, whereabouts and role in the incident, Scoobys amnesia may have been feigned, Cheo Pous .22 caliber revolver was smaller and less lethal than the SOD members firearms; (4) counsel failed to explain why Cheo Pous trial testimony was inconsistent with that of other witnesses and with his own statement to police, or suggest which of his statements jurors should believe; (5) counsel made "mistakes of fact" in his selection of two examples of Nais alleged material misrepresentations, and in his comment on the prosecutions failure to obtain gunshot residue tests; (6) counsel failed to renew his unsuccessful argument that there was insufficient evidence of assault upon John; (7) counsel appeared uncertain about the witnesses names; and (8) the overall tenor of counsels argument was brief, perfunctory, passive, weak, apologetic, vague, confusing, disorganized, half-hearted and ineffectual.
"The decision of how to argue to the jury after the presentation of evidence is inherently tactical" (People v. Freeman (1994) 8 Cal.4th 450, 498), and "[t]he effectiveness of an advocates oral presentation is difficult to judge accurately from a written transcript" (Cudjo, supra, 6 Cal.4th at p. 634). We have carefully reviewed defense counsels closing argument to the jury, and while it certainly might have been better, we are not persuaded that it fell below the standard of reasonably competent representation. Moreover, Cheo Pou has failed to establish that any deficiency in counsels closing was prejudicial.
E. Sentencing
1. Section 654
"Section 654 prohibits the imposition of punishment for more than one violation arising out of an act or omission which is made punishable in different ways by different statutory provisions. This proscription applies not only where there is `but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citations.]" (People v. Masters (1987) 195 Cal.App.3d 1124, 1127 (Masters).) "Whether a course of conduct is indivisible depends upon the intent and objective of the actor. [Citation.]" (People v. Perez (1979) 23 Cal.3d 545, 551.) "The purpose of the protection against multiple punishment is to insure that the defendants punishment will be commensurate with his criminal liability." (Neal v. State of California (1960) 55 Cal.2d 11, 20 (Neal).)
Cheo Pou contends the consecutive term of one year, eight months imposed upon him for shooting into an occupied building violates the prohibition against multiple punishment because the act(s) underlying that offense were, or reasonably could have been, the same ones that constituted the attempted murder of Scooby and the firearm assaults on Tony and John. In accordance with the rule of lenity, he urges us to give him the benefit of the doubt concerning the factual bases for the verdicts (People v. Coelho (2001) 89 Cal.App.4th 861, 885-886). Shooting into the occupied building, he argues, was part of a course of conduct with the single objective of assaulting Scooby and his confederates.
But "[t]he section 654 proscription against multiple punishment does not apply to violations arising from an indivisible course of conduct if during the course of that conduct the defendant committed crimes of violence against different victims. [Citations.]" (Masters, supra, 195 Cal.App.3d at p. 1127.) This is because "[a] defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person." (Neal, supra, 55 Cal.2d at p. 20.) Thus, the Masters court held that a defendant who shot at a car carrying three people and injured a passenger was properly punished for both assault with a deadly weapon and discharging a firearm at an occupied motor vehicle. (Masters, supra, at pp. 1126-1127, 1130.) "In our view," the court explained, "Masterss violation of section 245, subdivision (a)(2), and section 246, while in the same course of conduct, resulted in the commission of violent crimes against different victims. Manifestly, [the injured passenger] was the unfortunate victim of Masterss assault with a deadly weapon and all three occupants of the [car] were victims of his discharge of the firearm at the vehicle. As Masterss violent actions were performed in a manner likely to cause harm to all three individuals in the vehicle, and in fact did seriously injure one person, the section 654 proscription against multiple punishment for violations arising from an indivisible course of conduct is inapplicable." (Masters, supra, at p. 1128.)
Similarly, the hundreds of people other than Tony, John and Scooby, who were inside the union hall during the Mien cultural festival, were the victims of Cheo Pous shooting into the building. Cheo Pous argument that section 246 does not have "victims" in the traditional sense of the word was rejected by the Masters court. "Masters shot at an occupied moving vehicle containing a driver and two passengers. Clearly, all three individuals were victims of [his] violation of section 246. In view of the fact that the offense requires that the vehicle be occupied, logic dictates that the occupants of the vehicle are victims of the crime." (Masters, supra, 195 Cal.App.3d at p. 1130, distinguishing Martin v. Hall (1971) 20 Cal.App.3d 414, 426 [no victims in the ordinary sense where firearm discharged at inhabited but temporarily vacant dwelling].)
Contrary to Cheo Pous suggestion, the recent case of People v. Kramer (2002) 29 Cal.4th 720 has not undermined the holding in Masters. In Kramer, the defendant, who shot at a moving car containing two occupants, was convicted of both discharging a firearm at an occupied vehicle and assault with a firearm. (Id. at p. 722.) The trial court imposed a prison term for the former violation and stayed the sentence for the latter (ibid.), but this ruling was not before the Supreme Court. Rather, the question was whether a sentencing court considers enhancements in determining, under section 654, which provision of the law provides for the longest potential term of imprisonment. (Id. at p. 723.) "Cases are not authority for propositions not there considered." (People v. Darnell (1990) 224 Cal.App.3d 806, 811.)
2. Statement of Reasons
As previously noted (ante, p. 8 & fn. 7), the court sentenced Cheo Pou to 56 years, 4 months to life in prison. Cheo Pou contends the court erroneously failed to state reasons for imposing the determinate terms consecutive to the concurrent indeterminate terms and to each other, and for imposing the 10-year upper term for the firearm use enhancement in count two (assault with firearm against Tony).
The court is required to state the reasons for its sentence choices on the record at the time of sentencing. (§ 1170, subd. (c).) Sentence choices that generally require a statement of reasons include selecting a term other than the midterm for an offense or enhancement, and imposing consecutive sentences. (Cal. Rules of Court, rule 4.406 (b)(4) & (5).)
The Attorney General does not deny that a statement of reasons was required in this case, nor claim that the trial court stated adequate reasons. Rather, he points out that Cheo Pou waived the issue by failing to raise it below (People v. Scott (1994) 9 Cal.4th 331, 352-353). In reply, Cheo Pou claims that counsels failure to object to the inadequacy of the courts statement of reasons constituted ineffective assistance.
Where, as here, the record does not illuminate the basis for the challenged omissions, a claim of ineffective assistance is more appropriately made in a petition for habeas corpus. (People v. Pope (1979) 23 Cal.3d 412, 426.) However, "If a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsels performance was deficient. [Citation.]" (Mayfield, supra, 14 Cal.4th at p. 784.) Prejudice must be proved as a demonstrable reality, not mere speculation. (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) In this case, it is not reasonably probable that counsels intervention at the sentencing hearing would have resulted in a shorter prison term.
As to imposition of the upper term for firearm use in count two, the courts remarks repeatedly indicated an awareness of its general sentencing discretion. Although the court did not expressly acknowledge the range of terms available for this particular enhancement —three, four, or ten years—both defense counsels sentencing memorandum and the prosecutors sentencing recommendation to the probation department indicated the triad of available punishments. While no one was actually injured when Cheo Pou shot at Tony, his wanton gun use endangered not just Tony and his friends, but a large number of innocent bystanders.
The court was also aware of its discretion to sentence concurrently (as it did on count one) or consecutively. Both in his sentencing memorandum and at the hearing, defense counsel argued for concurrent sentences. The court was entitled to consider the fact that the crimes of which Cheo Pou was convicted involved separate acts of violence (Cal. Rules of Court, rule 4.425(a)(2)), and to impose a consecutive sentence for each one.
Thus, even if counsel were deficient in failing to preserve the issue on appeal, it is not reasonably probable that his reminding the court to state its reasons in the record would have resulted in a shorter enhancement term or concurrent sentences.
IV. DISPOSITION
In a separate order filed this date in case number A102900, we denied Cheo Pous petition for writ of habeas corpus.
We concur: Reardon, J., Sepulveda, J.