Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB024827, Bob N. Krug, Judge. Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.
ORIGINAL PROCEEDING; petition for writ of habeas corpus. Bob N. Krug, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Petition denied.
Doris M. Frizzell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Janelle Marie Boustany, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKinster, Acting P.J.
After we reversed the original judgment of conviction entered against defendant and appellant Casimiro Amezcua (hereafter defendant), but affirmed the judgment, with modifications, against codefendant Alberto Barreto, a jury on remand found defendant guilty as charged of one count of first degree murder (count 1) and three counts of attempted murder with premeditation and deliberation (counts 2, 3, and 4). The jury also returned true findings on gun use enhancements under Penal Code section 12022.53, subdivisions (d) and (e)(1), and criminal street gang enhancements under Penal Code section 186.22, subdivision (b)(1) alleged in connection with each count. The trial court, in turn, sentenced defendant to state prison for a total term of 180 years to life.
At defendant’s request, we take judicial notice of his first appeal in case No. E030954.
In this appeal, defendant challenges the jury’s guilty verdicts and the trial court’s sentence. With respect to the former, defendant contends that the judgment must be reversed because the trial court abused its discretion when it permitted the prosecutor to question the defense investigator, Armando Cruz, about his motive for contacting only one of several witnesses who had identified defendant as one of the two shooters who committed the crimes at issue in this case. Defendant contends that the trial court’s error was compounded, and resulted in a denial of his federal due process right to a fair trial, when the prosecutor improperly argued to the jury that the defense investigator had attempted to intimidate the witness in question. Defendant also contends that the trial court improperly imposed both the gun use and gang enhancements.
We agree with defendant’s claim of sentencing error. Although we also agree that the prosecutor’s closing argument was improper, defendant did not object, and therefore did not preserve the issue for review on appeal, but in any event we conclude that the conduct was not prejudicial when viewed in the context of all the evidence. Accordingly, we will modify defendant’s sentence and affirm the judgment as modified.
In a separate petition for writ of habeas corpus defendant alleges that he was denied the effective assistance of counsel because his trial attorney did not call Elizette Morales as a witness, or have her declared unavailable and then present her prior testimony, and also did not introduce into evidence the prior favorable testimony of Ralph Robles and Sammy Perez. We conclude, as we explain below, that defendant has not made a prima facie showing upon which relief may be granted. Therefore, we will deny the writ petition.
We consolidated the writ petition with this appeal for the limited purpose of determining whether an order to show cause should issue.
FACTS
The charges in this case stem from a gang-related shooting on Union Street that occurred on the night of November 27, 1999, in which defendant and Barreto, both of whom are members of a criminal street gang called Florencia 13, were alleged to have opened fire on a group of people associated with 7th Street, a rival gang. The shooting purportedly occurred in retaliation for the shooting of a Florencia 13 member by 7th Street earlier in the day. As a result of defendant’s actions, Jesse Martinez was shot and killed. His girlfriend Natalie Molina was shot in the back and remains a paraplegic as a result of the injury. Two others, Keith Caldwell and Angela Alvarado, also were shot and injured. Ms. Alvarado was pregnant at the time, and the baby died as a result of the shooting.
The circumstances surrounding the shootings are essentially undisputed and we briefly recount the pertinent details. On the night of November 27, 1999, Sammy Perez and several of his friends were gathered outside his house on Union Street when two men walked up and asked Perez where he was from. When Perez responded “7th Street,” the name of the street gang to which Perez belonged, one or both of the men said the name of their gang, Florencia, and then one of them pulled a .22-caliber rifle out from behind his leg and started shooting. Perez ran and escaped injury.
Alex Martinez, whose brother Jesse Martinez was killed in the shooting, testified in pertinent part that he was at the gathering on Union Street and after the man with the rifle stopped shooting, the second man started shooting a handgun. Martinez believed the second person fired two or three shots at the crowd from the handgun. The two men then ran to a nearby car and drove away. Alex Martinez could not identify Barreto but he did identify defendant from a photo lineup. Alex Martinez also remembered that at the original trial, he again identified defendant and stated defendant was the second shooter, the one with the handgun.
The parties referred to the first trial as a previous hearing, presumably to prevent the jury from learning there had been an earlier trial in this case.
Although Ralph Robles could not recall his original trial testimony or any other detail of the events at issue in this case, he did acknowledge that he had testified under oath at the first trial, and that his testimony at that proceeding was the truth. According to his original testimony, Robles was a member of Florencia 13, and on the night of the shooting was with his girlfriend at her home. Robles was suffering from an asthma attack. Barreto, whom Robles knew as Demon, called Robles on the telephone and later showed up at the girlfriend’s house. While at the house, Demon went into the bedroom where Robles was sleeping and put two guns under the mattress. The next morning, when he and his girlfriend were making the bed, Robles found a .22-caliber rifle and a .380-caliber handgun under the mattress. Robles got rid of the rifle by taking it to a friend of his girlfriend, but he kept the handgun which police later found in the closet of his bedroom.
Additional evidence presented at trial will be discussed below as pertinent to the issues defendant raises on appeal.
1.
DUE PROCESS CLAIM
Defendant, as previously noted, contends that his right to a fair trial under the due process clause of the federal Constitution was violated in this case because the trial court overruled defendant’s objections to the prosecutor’s purportedly improper questioning of defendant’s investigator, and then the prosecutor committed misconduct in closing argument by improperly arguing the significance of the investigator’s testimony. We agree with defendant, for reasons we now explain, that the prosecutor’s argument was improper. However, defendant did not object to that improper argument, and we do not share defendant’s view that the oversight is excused in this case.
The pertinent details are that Armando Cruz, a defense private investigator, testified in pertinent part that he was assigned this case in November 2000. As part of his investigation, in September 2001, Cruz contacted Mona Perez, a witness to the shooting who, in December 1999, had identified defendant from a police photo lineup as one of the shooters. Cruz testified that he showed Ms. Perez the same photo lineup from which she had originally identified defendant, and asked her to pick out the person she had previously identified. Instead of pointing to defendant’s photograph, which was in the second position in the photo lineup, as she had done in 1999, Ms. Perez pointed to the person in the first photograph. When Cruz asked whether she had been sure when she identified defendant in 1999, Ms. Perez said that “she wasn’t sure back then and that she had told the police the fact that she was unsure.”
On cross-examination, the prosecutor asked Cruz why he had not contacted Mona Perez’s cousin, Sammy Perez, who also had been at the gathering where the shooting occurred. When defendant objected that the question was beyond the scope of direct, the trial court initially agreed but then overruled the objection when the prosecutor asserted that it “goes to his bias as to only contacting this witness [Mona Perez], but not contacting any other witness.” The prosecutor later asked Cruz why he had not contacted Alex Martinez, another witness who had also identified defendant as one of the shooters. The trial court again overruled defendant’s objection that the question was beyond the scope of direct and irrelevant.
In this appeal, defendant challenges the trial court’s evidentiary ruling on various grounds, only one of which defendant actually asserted in the trial court. We will not belabor the oversight, however, because even if we were to agree with defendant’s claim, we nevertheless would conclude that the purported error was not prejudicial. (See Evid. Code, § 353.) First, we note that defendant’s complaint is not with the evidence, i.e., Cruz’s answers to the prosecutor’s questions, but with the questions themselves. As the trial court instructed the jury, the questions posed by the attorneys are not evidence; they are the means by which evidence is elicited from witnesses. (See CALJIC No. 1.02.) The actual evidence, i.e., Cruz’s answer, was innocuous. Cruz stated, in response to the first question, that there could be a number of reasons why he did not contact Sammy Perez. In response to the second question, Cruz said, “A lot of witnesses don’t want to talk and that is what I have come across on a lot of these cases. I have investigated lots of cases as a police officer and also as a private investigator. People don’t want to talk.” Given Cruz’s responses, and the trial court’s instruction to the jury to disregard the attorney’s questions, it is not reasonably probable the jury in this case would have reached results more favorable to defendant on any of the charges if the trial court had sustained defendant’s objections to the noted questions. (People v. Watson (1956) 46 Cal.2d 818, 836.)
It occurs to us that another explanation for Cruz’s action is that defense counsel had asked him to contact only Ms. Perez, a fact that is protected from disclosure under the attorney work product privilege. (Code Civ. Proc., § 2018.030, subd. (b).)
Defendant also contends that the prosecutor engaged in misconduct, first, by asking defense investigator Cruz a series of argumentative questions (to which the trial court sustained defendant’s objections) that implied Cruz had attempted to intimidate Mona Perez in order to get her to recant her identification of defendant and, next, by arguing in closing that Cruz in fact had intimidated Mona Perez and the reason he did not contact any other witnesses was because Cruz knew he could not intimidate them. We are inclined to agree that the prosecutor’s questions and closing argument were improper.
Our discussion must begin with the principle that “the prosecutor’s role transcends that of an adversary: [the prosecutor] ‘is the representative not of an ordinary party to a controversy, but of a sovereignty . . . whose interest . . . in a criminal prosecution is not that it shall win a case, but that justice shall be done.’ [Citations.]” (United States v. Bagley (1985) 473 U.S. 667, 675, fn. 6, quoting Berger v. United States (1935) 295 U.S. 78, 88; see also People v. Hill (1998) 17 Cal.4th 800, 820.) Under federal law, a prosecutor’s improper remarks or questions constitute misconduct if they “‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ [Citation.]” (Darden v. Wainwright (1986) 477 U.S. 168, 181.) “‘Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.”’” [Citation.]’ [Citation.]” (People v. Hill, supra, 17 Cal.4th at p. 819.) “‘“‘[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.’ [Citation.]”’” (Ibid.)
With these principles in mind, we can conceive of no legitimate reason for the prosecutor to ask the defense investigator a series of argumentative questions, to which the trial court sustained defendant’s objections and admonished the prosecutor to “go back to the subject at hand,” and then persist, despite the admonishment, by asking a final question: “You would agree that a visit [to Mona Perez] on the eve of testimony would smack of intimidation versus fact finding, wouldn’t you?” When defendant objected “again, same grounds [argumentative],” the prosecutor withdrew the question, and said, “Nothing further.”
The prosecutor’s improper purpose is revealed by her act of withdrawing the challenged question. Although dramatic, and therefore a maneuver often engaged in by actors portraying lawyers in movies and on television, the maneuver is unethical at the very least and borders on misconduct. The prosecutor in this case did not have a factual basis for her claim that defense investigator Cruz had intimidated Mona Perez, as revealed by the prosecutor’s questioning of Ms. Perez, the one witness actually qualified to testify on the subject. In that questioning, the prosecutor avoided the subject and did not ask Ms. Perez if she had been intimidated by the defense investigator. Nevertheless, the prosecutor pursued the issue with the investigator, even after the trial court had sustained defendant’s objections to the prosecutor’s questions, and then the prosecutor culminated with the blatantly argumentative, and therefore withdrawn, question.
The prosecutor committed additional improprieties during closing argument by putting forth her personal view that defense investigator Cruz had intimidated Ms. Perez: “Now, [defense counsel] talks about the interview with Ms. Perez some two years later with Mr. Cruz. And I think you could tell from my cross [of Mr. Cruz] that I had some issue with that as I struggled to get through numerous binders of an investigation, and he is assigned an investigation and that is what we get after 10 months. Do I have an issue with that? I do. I do have an issue with that. [¶] When you are assigned a case like this and there are two witnesses who have ID’d the person they saw and you don’t get around to going and talking to one of them for over 10 months, just happened to be three days before she testified, and you don’t even talk to anybody else? What happened to talking to Mr. Martinez? He ID’d. [¶] But let’s face it, ladies and gentlemen, that was intimidation. And I think that you and I know that Mr. Martinez [who testified at trial] was not going to be intimidated by Mr. Cruz. But he goes to Ms. Perez and he says, [‘]Read your statement. Read where you said you identified number 2. Now here look at the lineup, which one did you identify?[’] And she says after just reading she had identified number 2, [‘]well, I think it was number 1.[’] How reasonable is that? [¶] And I asked him [Cruz], [‘]Didn’t that make you feel -- cause any concern that she just said she read it, she identified number 2, yet she is telling you I think it was number 1? Isn’t that kind of unusual?[’] No, it is not. You know why, because that is what witnesses who are intimidated, that is what they do. That is exactly what they do. They submit to the pressure. They submit to the reminder that in three days you are going to go testify against a shot caller from a gang who came to your neighborhood and shot up everybody. She was afraid. That is what that is all about.” The prosecutor added that Ms. Perez did not identify the person in photo No. 1, as defense counsel had argued during his closing. Instead, “She submitted to the pressure of being intimidated. And she sat here and told you, [‘]What I said the first time to the officers, that one was the truth.[’] The time when I wasn’t under pressure, the time when it was right after the incident occurred, the time when I am not in my own home with my children and my family being reminded that I am about to go testify against a gang member. [¶] That is offensive.”
The effect of the prosecutor’s closing argument was to put before the jury the prosecutor’s personal views regarding not only the proper way to investigate a case, but also regarding the motives that would compel someone like the defense investigator to depart from the prosecutor’s method. Not only are the prosecutor’s personal views irrelevant, but in order to convey those views the prosecutor also had to rely on facts that were not in evidence. A prosecutor may not argue facts not in evidence. (People v. Velez (1983) 144 Cal.App.3d 558, 569.) Moreover, and as previously noted, the prosecutor did not ask Ms. Perez if she had been intimidated by Mr. Cruz. Therefore, the prosecutor did not establish the critical fact of intimidation. In arguing that Ms. Perez had been intimidated, and as a result identified someone other than defendant in the photo lineup, the prosecutor was not relying on inferences from the evidence and therefore engaging in proper argument. Instead, the prosecutor was improperly arguing facts that had not been established by the evidence, and that reflected nothing more than the prosecutor’s personal views.
Although Mr. Cruz testified that he contacted Ms. Perez at her home, we have found nothing in the record to support the prosecutor’s statement that Ms. Perez’s family and children were present during that interview.
Although we conclude that the prosecutor’s argument was improper, defendant did not object at trial to that argument. “‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]’ [Citation.] [¶] The foregoing, however, is only the general rule. A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal if ‘“an admonition would not have cured the harm caused by the misconduct.”’ [Citations.] Finally, the absence of a request for a curative admonition does not forfeit the issue for appeal if ‘the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.’ [Citations.]” (People v. Hill, supra, 17 Cal.4th at pp. 820-821.)
Defendant contends that an objection would have been futile in this case, and therefore his failure to object is excused, because the trial court had overruled his objections to the prosecutor’s cross-examination of investigator Cruz. Defendant is wrong. The trial court, as noted above, allowed the prosecutor to ask Cruz why he had not contacted two other witnesses to the shootings. The trial court sustained defendant’s objections to questions the prosecutor posed that were directed at showing Cruz had attempted to intimidate Ms. Perez. Presumably, the trial court would also have sustained defendant’s objections to the prosecutor’s closing argument on that same subject, if defendant had posed those objections. Under these circumstances we simply cannot say that defendant’s failure to object is excused.
Because he did not object we will not discuss the other instances defendant cites of purported misconduct by the prosecutor. We note only that we do not share defendant’s view that it necessarily was improper for the prosecutor to use the phrase “abiding conviction” to describe the degree of certainty Alex Martinez and Mona Perez held in their respective pretrial identifications of defendant as one of the shooters.
But even if we were to conclude that an objection was not required in order to preserve the issue for review on appeal, we nevertheless would conclude that the prosecutor’s actions in this case were not prejudicial and therefore do not require reversal of the judgment. We do not share defendant’s view that the prosecutor’s conduct rendered defendant’s trial fundamentally unfair and thus constituted a denial of defendant’s right to due process under the federal Constitution. (Darden v. Wainwright, supra, 477 U.S. at p. 181.) The prosecutor’s actions at worst were misconduct under state law, which requires reversal if “it is reasonably probable that a result more favorable to the defendant would have occurred had the district attorney refrained from the untoward [argument]. [Citations.]” (People v. Pigage (2003) 112 Cal.App.4th 1359, 1375.)
In our view it is not reasonably probable the jury would have reached a result more favorable to defendant on any of the charges in this case if the prosecutor had not asked the improper questions or made the improper closing argument. The prosecutor’s misconduct was directed at bolstering the credibility of Mona Perez’s identification of defendant as one of the two men who fired shots at the people on Union Street on the night of November 27, 1999. The weaknesses in Perez’s testimony regarding defendant’s identity as the second shooter were obvious, notwithstanding the prosecutor’s effort to disguise them. Moreover, Perez did not identify defendant at trial as the second shooter. Instead, she identified him only as the person whose picture was in the No. 2 position of the photo lineup. Given the obvious weaknesses, we assume that the jury did not rely on Perez’s testimony in finding defendant guilty. Instead, the jury relied on the testimony of Alex Martinez, who also identified defendant as the second shooter, the one with the handgun. In addition, the jury heard the testimony of Alejandro Obezo (Cyclone) that he was in a car with defendant and Barreto on the night in question. Defendant and Barreto had been talking about paying someone back for a shooting earlier that day of a Florencia 13 member. When they passed a group of people in the street, defendant pulled the car over, and defendant and Barreto got out. Obezo said that defendant had a handgun and Barreto had a rifle. They walked back toward the people in the street, after which Obezo, who stayed in the car, heard gun shots. Defendant and Barreto ran back to the car. Obezo heard both men talk about how they had fired shots and heard defendant specifically say something about how he had shot someone in the head.
The prosecutor asked Perez, “Looking at this exhibit number 19 [the photo lineup] and the person in number 2, do you see anyone in court who is depicted in that photo?” When Perez answered, “That looks like him,” the prosecutor repeated, “That is this person in number 2?” Perez answered, “It looks like him, but I can’t say it is him.” The prosecutor then asked that the record reflect that Ms. Perez identified defendant.
During deliberations, the jury asked for the court reporter to read back the testimony of Mona Perez, Alex Martinez, and Detective Dillon, the police detective who had investigated the crimes.
Alejandro Obezo died before defendant’s second trial, and therefore his testimony from the first trial was read into evidence, but not transcribed.
Accordingly, for each of the reasons discussed, we must reject defendant’s prosecutorial misconduct claim.
2.
SENTENCING ISSUE
Defendant contends, and the Attorney General concedes, that the trial court incorrectly imposed the Penal Code section 12022.53 gun use enhancements and the section 186.22 gang enhancements. The Attorney General’s concession is appropriate. Section 12022.53, subdivision (d) provides for an enhancement of 25 years to life on a defendant who intentionally and personally discharges a firearm and proximately causes death in the commission of a murder. Prior to its amendment in 2002, and therefore as pertinent to this case, section 12022.53, subdivision (e)(1) provided: “The enhancements specified in this section shall apply to any person charged as a principal in the commission of an offense that includes an allegation pursuant to this section when a violation of both this section and subdivision (b) of Section 186.22 are pled and proved.” Thus, a principal is subject to the 25-year enhancement even if he did not personally use a firearm, if the murder was committed for the benefit of, at the direction of, or in association with a criminal street gang and at least one principal used a firearm. (People v. Salas (2001) 89 Cal.App.4th 1275, 1281.) Section 12022.53, subdivision (e)(2) provides that an enhancement for participation in a criminal street gang pursuant to section 186.22 shall not be imposed on a person in addition to a gun use enhancement imposed pursuant to section 12022.53, subdivision (e)(1), “unless the person personally used or personally discharged a firearm in the commission of the offense.” Thus, a defendant who did not personally use a firearm but who was a principal in an offense in which another principal used a firearm can only receive the 25-to-life enhancement under section 12022.53, subdivision (e)(1), not the pertinent gang enhancement. (People v. Salas, supra, at pp. 1281-1282.)
All further statutory references will be to the Penal Code unless otherwise indicated.
The jury in this case did not make a finding that defendant personally used a firearm as required under section 12022.53, subdivision (e)(1). Therefore, the trial court incorrectly imposed both the criminal street gang enhancement and the gun use enhancement on all four counts. The criminal street gang enhancements the trial court imposed on each count must be stricken.
The trial court instructed the jury in connection with the gun use allegations that the jury must determine whether “defendant or a principal” in the crime intentionally and personally discharged a firearm. The jurors in turn returned a true finding that stated, in pertinent part, that in the commission of each of the charged crimes, “a principal personally and intentionally discharged a firearm.”
3.
HABEAS CORPUS PETITION
Defendant alleges in his habeas corpus petition that Elizette Morales testified at his first trial, and gave testimony that inculpated his codefendant but that was favorable to defendant. Defense counsel did not call Ms. Morales as a witness at defendant’s second trial. When asked why he had not called Ms. Morales, trial counsel stated he had tactical reasons for that decision, but did not specify the reasons. Trial counsel did not respond when appellate counsel sent a letter asking for a specification of the tactical reasons that drove his decision to not call Ms. Morales as a witness. Defendant recalls that his trial attorney told him he could not locate Ms. Morales and as a result she would not testify at trial. Defendant also alleges that although Sammy Perez and Ralph Robles did testify at his second trial, both claimed failures of recollection on key facts favorable to defendant about which both had testified in defendant’s first trial. Defendant’s trial attorney did not introduce the prior favorable testimony of these two witnesses into evidence at defendant’s second trial. When asked for an explanation, trial counsel expressed his belief that he did bring up the prior favorable testimony in his cross-examinations of Perez and Robles. As a result of trial counsel’s oversights, defendant alleges that he was denied his right to the effective assistance of counsel as guaranteed in both the state and federal Constitutions. As previously noted, we consolidated this petition with defendant’s appeal for the limited purpose of determining whether an order to show cause should issue.
A. Analysis
The legal principles that govern our review of these allegations are well settled. First, “[w]e presume the regularity of proceedings that resulted in a final judgment [citation],” and place the burden on defendant to plead sufficient grounds for relief. (People v. Duvall (1995) 9 Cal.4th 464, 474.) We will only issue an order to show cause if the factual allegations of the petition, taken as true, establish a prima facie case for relief. (Id. at p. 475.) To establish a prima facie claim for relief based on ineffective assistance of counsel, defendant must allege facts in his habeas corpus petition that “demonstrate (1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s 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.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing, among other cases, Strickland v. Washington (1984) 466 U.S. 668.) “In evaluating defendant’s showing we accord great deference to the tactical decisions of trial counsel in order to avoid ‘second-guessing counsel’s tactics and chilling vigorous advocacy by tempting counsel to “defend himself against a claim of ineffective assistance after trial rather than to defend his client against criminal charges at trial . . . .”’ [Citations.]” (In re Fields (1990) 51 Cal.3d 1063, 1069-1070.)
In his supporting points and authorities, defendant points out that the principal prosecution witness at both trials was Alejandro Obezo. In her testimony at defendant’s first trial Elizette Morales stated, in pertinent part, that on the day of the shootings codefendant Barreto and Alejandro Obezo were at her house to talk with her boyfriend, Ralph Robles. According to Ms. Morales, and contrary to Obezo’s testimony, defendant was not with Obezo and Barreto. Defendant contends that Morales’s testimony was favorable to him and contradicted the testimony of Obezo, and therefore, trial counsel should have called Ms. Morales as a witness in the second trial. If, as he told defendant, trial counsel could not locate Ms. Morales, then defense counsel should have made a motion to have her declared unavailable so that her prior testimony could have been introduced into evidence at defendant’s second trial. Defendant asserts that failure to either call Ms. Morales as a witness, or have her declared unavailable as a witness, constitutes deficient performance.
The record of his first trial does not support defendant’s assessment of the exculpatory value of Ms. Morales’s testimony. In arguing otherwise, defendant relies on this court’s opinion in the first appeal in which we reversed the judgment against defendant after finding that the trial court had committed error by admitting the hearsay statement of codefendant Barreto and then compounded that error by instructing the jury that they could consider Barreto’s statement in deciding defendant’s guilt. In concluding the error was prejudicial we noted that Obezo, who had testified that defendant was the driver of the car and one of the shooters, had a motive to lie in order to avoid being implicated himself. We cited Ms. Morales’s testimony that she had spoken with Obezo on the phone, had seen him at her home on the night in question, and that she had been unable to identify defendant, as support for the inference that Obezo could have been one of the shooters. We did not hold as, defendant contends, that the testimony of Ms. Morales was necessarily beneficial to defendant. We held only that her testimony, combined with the trial court’s instruction to the jury, along with portions of the testimony of Sammy Perez and Ralph Robles, rendered prejudicial the trial court’s error in admitting the hearsay statements of Barreto.
When considered only for its exculpatory value, Ms. Morales’s testimony at best is marginal. Although Ms. Morales did testify that on the night in question Alejandro Obezo (whom she referred to as Cyclone) had been one of the people who came to her house with codefendant Barreto, she also acknowledged that she had only just remembered that Obezo had been with Barreto. Ms. Morales also testified that her pager had beeped earlier in the evening, and when she returned the call, Cyclone answered and asked to speak with Robles. Ms. Morales could not explain why Cyclone would have her pager number. Moreover, the police detective in charge of the investigation testified in pertinent part that he interviewed Ms. Morales several days after the shooting and she never mentioned Cyclone. In addition to her testimony about Cyclone, Ms. Morales also stated that although she could only identify Barreto and Cyclone, at least four people had been at her house to talk with Robles on the night in question. One of the other people could have been defendant. Accordingly, we conclude that trial counsel could have had a valid tactical reason either for not calling Ms. Morales as a witness or, in the alternative, for not presenting her prior testimony.
We do not share defendant’s view that trial counsel failed to present the favorable prior testimony of Sammy Perez and Ralph Robles. The record on appeal in this case reveals that trial counsel presented their prior favorable testimony when he cross-examined each witness. In his testimony at the first trial, Ralph Robles confirmed that Barreto and Obezo had been at the house, both before the shooting and again after when they hid the guns under the mattress, but Robles had not seen defendant that night. In defendant’s second trial, Robles could not remember any detail about the events surrounding the shooting or his testimony at the prior trial. However, when asked about defendant, Robles said that he had never seen him before. Similarly, although Sammy Perez’s memory not only of the shooting but also of the prior trial was vague by the time of the second trial, he did concede that he had testified in the first trial and that his memory of the shooting was better at that time. When trial counsel read a portion of Perez’s former testimony to him, Perez again said he did not recall having said that in the first trial, and added, “but if that is what I said, then, I mean, my memory would probably be . . . better back then.” In other words, Perez acknowledged, albeit inartfully, that he made the statements attributed to him in the reporter’s transcript of the first trial. Consequently, when trial counsel read his former testimony to him, Perez acknowledged, although he could not actually recall having said so, that he had seen a car with three people inside pull up to the corner, the two shooters got out from the passenger side, and he did not see the driver get out of the car.
Defendant takes issue with the manner in which trial counsel presented the former testimony, and apparently is of the view that trial counsel should have read all of the former testimony into the record. Defendant is wrong in his view. Perez claimed a failure of recollection and therefore had to be afforded an opportunity to have his recollection refreshed by his former testimony. The manner in which Perez’s prior testimony was presented in this case was due to the passage of time and his failure of recollection rather than as a result of deficient performance by trial counsel.
In summary, we conclude that defendant has not made a prima facie showing of ineffective assistance of counsel and therefore we will deny the petition for writ of habeas corpus.
DISPOSITION
The petition for writ of habeas corpus is denied.
Defendant’s sentence is modified by striking the 10-year sentence imposed under section 186.22, subdivision (b)(1) on count 1, and the 15-year-to-life sentences imposed under section 186.22, subdivision (b)(1) on counts 2, 3, and 4. Defendant’s sentence, as modified, consists of a term, on count 1, of 25 years to life for murder, with a consecutive term of 25 years to life on the section 12022.53, subdivisions (d) and (e)(1) enhancement; on count 2, a consecutive term of life with the possibility of parole for attempted willful, premeditated, and deliberate murder, with a consecutive term of 25 years to life under section 12022.53, subdivisions (d) and (e)(1); on count 3, a consecutive term of life with the possibility of parole for attempted willful, premeditated, and deliberate murder, with a consecutive term of 25 years to life under section 12022.53, subdivisions (d) and (e)(1); and on count 4, a consecutive term of life with the possibility of parole for attempted willful, premeditated, and deliberate murder, with a consecutive term of 25 years to life under section 12022.53, subdivisions (d) and (e)(1). As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment that reflects defendant’s modified sentence and to forward copies of that amended abstract to the appropriate agencies and entities
We concur: Gaut J., Miller J.