Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05CF3635, William R. Froeberg, Judge.
Seymour I. Amster for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Susan Miller and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
RYLAARSDAM, ACTING P. J.
A jury convicted defendant Ricardo Salas of first degree murder (Pen. Code, § 187, subd. (a); all further statutory references are to this code; count 1) and street terrorism (§ 186.22, subd. (a); count 2). As to count 1, it also found true allegations that a principal purposely discharged a firearm from a motor vehicle with the intent to kill (§ 190.2, subd. (a)(21)), and that defendant, an active participant in a criminal street gang committing the murder to further gang activities, intended to inflict death (§ 190.2, subd. (a)(22)), aided and abetted the murder to benefit a criminal street gang with the specific intent to further gang activities (§ 186.22, subd. (b)(1)), and was a principal in the crime during which another principal intentionally discharged a firearm causing death (§ 12022.53, subds. (d) & (e)(1)). The court denied defendant’s new trial motion and sentenced him to life in prison without the possibility of parole on count 1, plus a consecutive 25-years-to-life term for the section 12022.53 sentence enhancement attached to that count. It imposed a concurrent 2-year term on count 2 and struck the section 186.22, subdivision (b) gang enhancement attached to count 1 for sentencing purposes.
Defendant contends the admission of testimony by a jailhouse informant violated his right to counsel under Massiah v. United States (1964) 377 U.S. 201 [84 S.Ct. 1199, 12 L.Ed.2d 246] (Massiah)) and that his counsel was ineffective in allowing the evidence to be introduced. He also argues his counsel denied him his constitutional right to testify on his own behalf and that the court erred by admitting his prior conviction, refusing to give his requested voluntary manslaughter jury instruction, and denying his motion for new trial.
In addition, we requested supplemental briefing on whether the sentence imposed for street terrorism should be stayed. We conclude section 654 does so require. In all other respects, the judgment is affirmed.
FACTS
Late one night, defendant, Jesus Madrigal and Juan Pablo Becerra, all members of the Seventh Street gang, got into the front bench seat of Madrigal’s car, with Madrigal in the driver’s seat, defendant in the middle, and Becerra on the right. Defendant and Becerra both had guns.
Madrigal was driving Becerra home when the latter suggested they “take a cruise through another street.” They drove to an area controlled by rival gang F Troop because Becerra wanted to show them where a member of that gang lived. When they drove by, they saw the gang member get out of his car and walk toward his house.
Madrigal continued driving past the house. A car approached from the opposite direction, made a U-turn, and started following them. Madrigal turned into a shopping center and the other car did not follow. But it drove past as Madrigal exited the parking lot. Becerra started shooting out of the window and defendant began shooting through Madrigal’s dashboard and windshield. No shots were fired from the other car and although Becerra stated “he thought he saw a gun, ” Madrigal did not see one. The driver of the other car died from a gunshot wound to the head and a gun was found on the driver’s seat.
DISCUSSION
1. Massiah Violation
While in jail, defendant told fellow inmate Landon Horning about his role in the shooting. About two weeks later, Horning sent a letter to the district attorney’s office and was interviewed by police. During cross-examination, defense counsel elicited from Horning that after he met with the police, defendant showed him a document containing the “murder with gang enhancements” charges against him. On redirect, Horning testified that when defendant showed it to him, “[h]e seemed proud of the fact that he... had these charges and... was in there for a large thing, that he was in Seventh Street. He was kind of showing it off.”
Defendant argues the information elicited on redirect examination about his demeanor violated his right to counsel under Massiah. We disagree.
In Massiah, the United States Supreme Court held that after a defendant has been charged with a crime and has counsel, police may not deliberately seek to elicit information from the defendant without counsel being present. (Massiah, supra, 377 U.S. at p. 206.) Statements obtained under such prohibited circumstances are inadmissible. (People v. Slayton (2001) 26 Cal.4th 1076, 1079.)
To prevail on a Massiah claim in the present factual context, defendant must provide evidence to “‘establish that the informant (1) was acting as a government agent, i.e., under the direction of the government pursuant to a preexisting arrangement, with the expectation of some resulting benefit or advantage, and (2) deliberately elicited incriminating statements.’ [Citation.] The requirement of agency is not satisfied when law enforcement officials ‘merely accept information elicited by the informant-inmate on his or her own initiative, with no official promises, encouragement, or guidance.’ [Citation.] A preexisting arrangement, however, need not be explicit or formal, but may be inferred from evidence of the parties’ behavior indicative of such an agreement. [Citation.]” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 67.)
According to defendant a “preexisting relationship” between the prosecution and Horning “can be inferred from the fact that the prosecutor brought a motion to have the informant’s sentence reduced.” This is based on an in camera hearing at which the court noted that, when housed with defendant, Horning was serving a 180-day sentence for a probation violation with four actual and two good time/work credits. Two months later, about a month before the trial in this case, the prosecutor appeared at Horning’s probation violation modification hearing. After the hearing, the court in a nunc pro tunc order increased Horning’s presentence custody credits and released him.
Regardless of whether these facts show a “preexisting relationship, ” they do not demonstrate that Horning was acting at the prosecution’s direction pursuant to a prior arrangement when he observed defendant’s demeanor as defendant showed him the document containing the charges against him, or that Horning made that observation with the expectation of a benefit or advantage. (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 67.) Defendant thus failed to satisfy his burden on the first prong of the test.
Nor is there evidence Horning deliberately elicited any information. The record shows defendant initiated the conversation with Horning by showing him the document with the pending charges against him. Horning merely observed defendant’s attitude as he did so. Defendant fails to explain how the testimony about his demeanor qualifies as a deliberate elicitation of incriminating statements from him. He also provides no authority prohibiting testimony regarding a witness’s observations as opposed to a defendant’s incriminating statements.
Defendant maintains that by getting a copy of the Penal Code from the library and going through it with him in search of something that would help both of their cases, Horning “took deliberate action that would elicit the information from [defendant]” “regarding his actions in the charged crime.” The contention lacks merit because defendant told Horning of his participation in the shooting before Horning met with police. Further, the testimony, which was elicited during direct examination, did not constitute a Massiah violation because, as defendant concedes, “information elicited on direct examination concerned information [Horning] learned prior to becoming a government agent.”
There was no error in admitting Horning’s testimony. Given that, we reject defendant’s claims his counsel was ineffective in failing to object to Horning’s testimony (see People v. Zavala (2008) 168 Cal.App.4th 772, 780 [no ineffective assistance of counsel for failure to make futile objection]) and that the trial court abused its discretion in denying his motion for new trial on this ground.
2. Violation of Right to Testify
Defendant contends his constitutional right to testify on his own behalf was violated because his attorney told him he could not testify and he did not know he had the right to do so over his attorney’s objection. He claims he would have testified had he known. But defendant forfeited his right to testify by not asserting it until after he had been found guilty, in his motion for new trial.
A defendant’s right to testify over defense counsel’s objection “is subject to one significant condition: The defendant must timely and adequately assert his right to testify. [Citation.]” (People v. Hayes (1991) 229 Cal.App.3d 1226, 1231.) “When the record fails to disclose a timely and adequate demand to testify, ‘a defendant may not await the outcome of the trial and then seek reversal based on his claim that despite expressing to counsel his desire to testify, he was deprived of that opportunity.’ [Citations.]” (People v. Alcala (1992) 4 Cal.4th 742, 805-806; see People v. Guillen (1974) 37 Cal.App.3d 976, 984-985 [assertion untimely where the defendant first told court of his desire to testify at posttrial hearing].) The “right to testify can be waived by conduct and does not require a personal and explicit waiver....” (People v. Hayes, supra, 229 Cal.App.3d at p. 1234, fn. omitted.) Courts have no sua sponte obligation to obtain a defendant’s personal waiver and without a timely statement of the desire to testify, the decision by defense counsel is binding. (Id. at p. 1232.) That is the case at bar.
Defendant argues “there was no opportunity available to [him] to assert his right prior to the time he did..., at the motion for a new trial, after being correctly informed of his rights by new appellate counsel.” He testified at the hearing on the new trial motion that although he wanted to testify at trial, his attorney told him he could not and he did not know he could testify over his attorney’s objections. In Guillen, the defendant similarly waited until after his conviction, during a motion for new trial, to inform the court that he wanted to testify despite his attorney’s advice not to take the stand. The court held this was untimely. (People v. Guillen, supra, 37 Cal.App.3d at pp. 984-985.) Defendant’s request here was untimely as well.
3. Admission of Prior Conviction
Prior to trial, the court denied defendant’s motion to exclude his prior gang-related conviction, finding the evidence was probative “for the purpose of establishing active participation” in a criminal street gang. Subsequently, police officer David Rondou, a criminal street gang expert, testified defendant was shot in 2000 by a rival gang member and at the time claimed to be a Seventh Street gang member. Defendant refused to cooperate with the police and as a result of the investigation pleaded guilty to possessing a handgun for the benefit of the Seventh Street gang. This prior conviction was one of the factors Rondou relied upon in determining defendant was an active participant in that gang.
Relying on People v. Valentine (1986) 42 Cal.3d 170, defendant asserts the court erred in admitting evidence of his prior conviction rather than allowing him to stipulate to having been convicted of a felony. In Valentine, the court held that where a defendant charged with possession of a firearm by a felon offers to stipulate to the prior conviction, the nature of the prior felony should not be disclosed to the jury. (Id. at p. 173.) Here, although defendant moved to exclude evidence of his gang-related conviction on the ground it was more prejudicial than probative, he acknowledges his counsel never stipulated to the prior conviction. Nor did he offer to do so. Therefore the court did not err under Valentine in admitting evidence of the prior conviction.
Defendant maintains the trial court failed to give a limiting instruction on the use of the prior conviction, allowing the jury to consider it as evidence of his propensity to commit weapons-related crimes. But defendant did not request one and a trial court generally has no sua sponte duty to give a limiting instruction on the admissibility of prior criminal acts. (People v. Collie (1981) 30 Cal.3d 43, 63.)
The only exception is in the rare and “occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose.” (People v. Collie, supra, 30 Cal.3d at p. 64.) This does not qualify as such a case. The evidence of defendant’s prior conviction was not a dominant part of the evidence, was highly relevant for the purpose of establishing his active participation in a criminal street gang, and was not unduly prejudicial. Accordingly, no departure from the general rule recognized in Collie is warranted. (See People v. Griggs (2003) 110 Cal.App.4th 1137, 1140 [no sua sponte limiting instruction required where “evidence of appellant’s prior felony convictions did not dominate the People’s case and was substantially relevant to prove the charges”].)
4. Imperfect Self-Defense Instruction
Defendant contends the trial court erred by refusing his request to instruct the jury on imperfect self-defense. We are not persuaded.
“Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter.” (In re Christian S. (1994) 7 Cal.4th 768, 771.) “[T]he doctrine is narrow. It requires without exception that the defendant must have had an actual belief in the need for self-defense.... ‘“[T]he peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with.”’ [¶].... Finally, we reiterate that, just as with perfect self-defense or any defense, ‘[a] trial court need give a requested instruction concerning a defense only if there is substantial evidence to support the defense.’ [Citation.]” (Id. at p. 783, italics omitted.)
Here, the trial court denied defendant’s request for an imperfect self-defense instruction, stating there was no “evidence... defendant perceived an imminent threat of harm.” Defendant contends this “overlook[s] the fact that Madrigal testified that shots were fired from the other car before any shots were fired by himself or [defendant].” The record does not support his claim. Four of the pages referred to by defendant reflect argument by counsel, which does not constitute evidence. (People v. Richardson (2008) 43 Cal.4th 959, 1004.) In the remaining 60 pages he cites, Madrigal testified that as the victim’s car passed in front of them, Becerra and defendant were the ones who started shooting. Although Madrigal also testified Becerra “said he thought he saw a gun, ” defendant did not testify and there is no evidence defendant believed he was in danger of imminent harm or that that was the reason he started shooting. Because there was no evidence defendant had any belief he needed to defend himself, reasonable or unreasonable, the court did not err in denying defendant’s request for an instruction on imperfect self-defense.
5. Section 654
The court sentenced defendant to life in prison without the possibility of parole on count 1 (murder) and imposed a concurrent 2-year term on count 2 (street terrorism). The sentence on count 2 should have been stayed.
Under section 654, subdivision (a), “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision....” Whether section 654 applies is generally a question of fact. (People v. Perez (1979) 23 Cal.3d 545, 552, fn. 5.) Thus, except in cases of “the applicability of the statute to conceded facts” (People v. Harrison (1989) 48 Cal.3d 321, 335), “the trial court’s finding will be upheld on appeal if it is supported by substantial evidence. [Citations.]” (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583; see also People v. Andra (2007) 156 Cal.App.4th 638, 640.)
In Neal v. State of California (1960) 55 Cal.2d 11 (Neal), the Supreme Court recognized the general rule that “‘[i]f only a single act is charged as the basis of... multiple convictions, ’... the defendant can be punished only once. [Citation.]” (Neal, supra, 55 Cal.2d at p. 19.) Neal also observed that because “[f]ew if any crimes... are the result of a single physical act, ” “‘section 654 has been applied not only where there was but one “act” in the ordinary sense... but also where a course of conduct violated more than one statute....’ [Citation.]” (Ibid.) “Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Ibid.)
The Attorney General urges this court to follow People v. Herrera (1999) 70 Cal.App.4th 1456. But as noted by another panel of this court in People v. Vu (2006) 143 Cal.App.4th 1009, “Herrera is distinguishable because the defendant was charged with a course of criminal conduct involving two gang-related, drive-by shootings in which two people were injured. [Citation.]” (Id. at p. 1034.) Vu held the defendant in that case could not be separately punished for conspiracy to commit murder and street terrorism because although he “committed different acts, violating more than one statute, ... the acts... constituted a criminal course of conduct with a single intent and objective” of conspiring to “avenge” the prior murder of a fellow gang member. (Id. at p. 1034.) Thus, while “that intent or objective could be parsed further into intent to promote the gang and intent to kill, those intents were not independent, ” but rather “dependent on, and incident to, the other.” (Ibid.)
Similarly, here, defendant’s act of shooting at the car resulting in the murder of its driver was the sole evidence supporting the element of promoting, furthering, or assisting felonious criminal conduct by the gang and there was no evidence of a separate and independent objective other than the intent to kill a rival gang member in order to promote his gang. Because the record reflects that defendant committed but a single criminal act with but a single intent and objective, the trial court erred by imposing a separate sentence on defendant for his street terrorism conviction in this case. That offense carries a shorter potential term of imprisonment than murder and thus should have been stayed under section 654.
In light of this conclusion, we need not discuss the discord between the recent cases of People v. Sanchez (2009) 179 Cal.App.4th 1297 and People v. Mesa (2010) 186 Cal.App.4th 773.)
DISPOSITION
The judgment is modified to stay imposition of sentence under count 2 pursuant to Penal Code section 654 with the stay to become permanent upon completion of the sentence imposed under count 1. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
WE CONCUR: BEDSWORTH, J., O’LEARY, J.