Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. FWV029998. Gerard S. Brown, Judge.
Alisa A. Shorago, 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, and Garrett Beaumont, Andrew Mestman and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER J.
A jury found defendant Shawn D. Boyd guilty of second degree murder for the shooting death of James Hartzell. The trial court sentenced him to 55 years to life, plus nine years.
On appeal, defendant argues that the prosecutor committed Doyle error, his trial attorney rendered ineffective assistance when he argued contrary to his testimony, the trial court failed to award him credit for actual time served, and the errors were cumulative. We reject all of defendant’s contentions, with the one exception conceded to by the People—that defendant is entitled to credit for time served. Therefore, we direct that the abstract be corrected to award defendant credit for time served. In all other respects, we affirm the judgment.
Doyle v. Ohio (1976) 426 U.S. 610 (Doyle).
FACTUAL AND PROCEDURAL HISTORY
After leaving a bar at 2:00 one morning, Eileen Meister and her longtime boyfriend James Hartzell (Hartzell or victim) went to George Kerner’s apartment so that Hartzell could fix Kerner’s video-game system. Defendant, accompanied by his friend Chris Gouweloos, went to Kerner’s residence to buy drugs and get high.
When Hartzell and Kerner began playing a video game, Meister went to sleep in an adjoining bedroom. Hartzell next played dice with defendant in the dining room. Around 8:00 or 9:00 in the morning, Kerner asked everyone to leave as friends had stopped by for breakfast to introduce him to a female friend. Hartzell woke Meister and the two began to leave the apartment.
As defendant exited the apartment, he offered to sell Kerner a videogame system for $50. Kerner asked defendant to get it and plug it in—if it worked, Kerner would pay him the money. Defendant replied, “Uh-uh, I’m coming up now,” whereupon he pulled a gun from his waistband and fired a shot at Kerner. Kerner dove to safety onto the ground.
Defendant waved the gun around the room, pointing it at everyone present. When defendant aimed the gun at Meister, Hartzell stepped in front of Meister and told him “‘Don’t point the gun at my lady.’” Hartzell and Meister stood at a distance of approximately eight to ten feet away from defendant. Defendant responded, “I’m going to put a cap in your ass, mother fucker,” then raised his arm and shot Hartzell. The bullet traveled through Hartzell’s left arm and exited his torso. Hartzell said, “‘Oh God, the fucker shot me,’” grabbed his side, and then fell to the ground. Defendant fled from the apartment, grabbing two purses lying on a coffee table on his way out the door.
Hartzell later died from a loss of blood caused by abdominal hemorrhaging. At the time of his death, Hartzell had 1.2 milligrams of methamphetamine in his system. Although at the time of trial, both Meister and Kerner denied that Kerner’s residence was a “smoke house,” Kerner was unable to explain the presence of two methamphetamine pipes found located in a trash can next to the steps leading from his sunken living room to the dining room.
Defendant was charged with one count of first degree murder (Pen. Code, § 187, subd. (a); count 1), one count of attempted second degree robbery (§ 664/221; count 2), and three counts of assault with a firearm (§ 245, subd. (a)(2); counts 3-5). Defendant was also charged in counts 1 through 3 with enhancements for personally discharging a firearm (§ 12022.53, subds. (b), (c) & (d)), and having served a prior prison term. (§ 667.5, subd. (a).) Finally, the information alleged three strikes within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d).
All further statutory references will be to the Penal Code unless indicated.
The jury found defendant guilty of the lesser-included offense of second degree murder, with the personal use of a deadly weapon as alleged in count 1, and three counts of assault with a deadly weapon as alleged in counts 3 through 5. The prosecution moved to dismiss count 2 and the personal use enhancement alleged in count 3. The trial court granted the prosecution’s dismissal request. Defendant admitted all prior conviction allegations with the understanding that the prosecutor would review his writ of habeas corpus to ascertain whether he suffered all three prior strikes, and dismiss any strikes he was not convicted of. The trial court granted the prosecutor’s motion to dismiss two of the strike allegations.
Defendant was sentenced to an indeterminate term of 55 years to life, comprised of 30 years to life (15 years to life, doubled) for count 1, plus a consecutive 25 years to life for the personal use enhancement, plus six years (double the midterm of three years) on count 4 as the base term, consecutive to count 1, plus six years (double the midterm of three years) on count 5 to run concurrent, and finally, three years for the prior prison prior to be served consecutively. The charge of assault with a deadly weapon upon Hartzell alleged in count 3 was stayed pursuant to section 654. Citing section 190, subd. (e), the trial court refused to grant actual or conduct credits because it believed defendant was required to serve the full amount of his indeterminate term.
DISCUSSION
A. Although the Prosecutor Committed Doyle Error, the Error Was Harmless. During the defense’s case-in-chief, defendant testified in his own behalf. In turn, the prosecutor cross-examined defendant as follows:
“[Prosecutor]: Did you want to get away because you just shot a man?
“[Defendant]: I got away because the situation was a bad situation.
“[Prosecutor]: Did you ever call the police?
“[Defendant]: No.
“[Prosecutor]: Did you ever tell the police that you were the victim of any kind of assault by Jim?
“[Defendant]: No.
“[Prosecutor]: Isn’t this the first time you ever testified or mentioned the fact that Jim assaulted you?
“[Defense Counsel]: Objection.
“[Court]: Well, let me clarify as to whether the first time he testified. Rephrase as to whether he’s ever mentioned it before?
“[Prosecutor]: Have you ever mentioned before today, in the last two and a half years, that Jim was attacking you on January 8th?
“[Defense Counsel]: Objection. We need to approach.”
Out of the jury’s presence, defense counsel objected on the grounds that the prosecutor was seeking privileged material “about what [defendant] told his attorney.” Counsel informed the court, “The cops tried to question him, he took his Miranda rights and didn’t answer them. So I don’t know what she’s going at as far as whether the defendant has ever told his story. [¶] He definitely—this is the story that I’ve been told since I was on this case, and this is the story that the investigator passed down to me. But that’s privileged.”
The trial court noted “whether [defendant] exercised his Miranda rights doesn’t go to the question [of] whether he ever told somebody. . . . [¶] Because here’s a scenario [the prosecutor] is able to get in front of the jury, and I think it’s fair. Hey, if he felt he was a victim he could have run on down to the cops and said, ‘Hey, this guy attacked me and I think he got shot.’ Whether he exercised his Miranda rights or not before he got arrested, he could have gone to the cops. I don’t think that’s an issue. So I don’t want you to pursue come [sic] interview with the cops.”
The court finally ruled, “What you can do [is say], ‘Other than any conversations you may have had with your lawyer, have you ever told anybody before or made any statements before to the effect that you were a victim or this guy attacked you,’ that is a perfectly relevant, absolutely relevant, because if he’s an innocent man, it was really an accident, an innocent man might have gone ahead instead of running away. This is a consciousness of guilt issue. It is perfectly fine to say, ‘Why didn’t you go tell the cops about it?’ Perfectly fine.”
When the testimony resumed, the prosecutor asked the defendant:
“[Prosecutor]: . . . Mr. Boyd, have you ever told anyone previously that on January 8, 2004, you were a victim of an assault by Mr. Hartzell?
“[Defendant]: I never talked to anybody about this.
“[Prosecutor]: Is that a no?
“[Defendant]: Yes.”
During her closing argument, the prosecutor challenged the defense’s theories that the victim was the aggressor and defendant fired the gun in self-defense. She argued: “There’s an instruction that talks about flight after a crime, consciousness of guilt. You’re allowed to consider that in your deliberations. Why did this defendant flee? Like I said, he just shot and killed a man. He didn’t bother calling 911. He didn’t make any phone calls. In fact, it was interesting when I asked him, he had this story to present to you several days ago, and I asked him between January of ‘04 and today’s date, had you told anybody? And he said to you, ‘I haven’t told anybody that Jim attacked me.’ This is the first anybody ever heard of it. And he didn’t tell anybody. And there [defense counsel] then asked him, didn’t you tell anybody? And he changes his testimony and now he’s told a host of people.”
Defendant contends that the prosecutor’s line of questioning regarding his silence after arrest, and her repeated references during closing argument that defendant remained silent, were Doyle error. The People assert the matter has been waived because defense counsel never objected on the basis of Doyle.
We find that defense counsel’s objection, that “[t]he cops tried to question him, he took his Miranda rights and didn’t answer them” was sufficient to preserve the matter on appeal. (People v. Champion (2005) 134 Cal.App.4th 1440, 1451.)
Turning to the substantive issue, it is well settled, that Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) requires an officer to inform an arrestee of his constitutional right to remain silent before any custodial interrogation, and that any statement that he makes may be used against him during an adversary proceeding. (Id. at pp. 467-469.) In Doyle, supra, 426 U.S. 610, the U.S. Supreme Court explained that the use of a defendant’s postarrest silence violated due process as it was unfair for the government to use defendant’s silence to impeach his testimony when the government had given its promise that it would not use his silence. (Id. at pp. 618-619.)
As illustrated by Miranda’s ubiquitous presence in every script of every crime show.
Doyle and subsequent cases make clear that breaching the implied assurance of the Miranda warnings is an affront to the fundamental fairness that the due process clause requires. Post-Doyle cases have delineated instances when due process is not violated: defendant’s silence existing prior to Miranda warnings being given before an arrest (Jenkins v. Anderson (1980) 447 U.S. 231, 238), postarrest statements when no Miranda assurances were given (Fletcher v. Weir (1982) 455 U.S. 603, 607), statements made post-Miranda when a defendant voluntarily speaks (Anderson v. Charles (1980) 447 U.S. 404, 408), and a defendant’s refusal to take a state blood alcohol test that does not involve Miranda-like warnings (South Dakota v. Neville (1983) 459 U.S. 553, 565). (Wainwright v. Greenfield (1986) 474 U.S. 284, 291 & fn. 6.)
While no evidence was ever presented as to whether defendant was given Miranda warnings, the record does reflect that the defense attorney informed the court, “The cops tried to question him and he took his Miranda rights.” For purposes of our discussion, we will assume that defendant was advised of his Miranda rights.
We assume that this statement by counsel had been made in good faith. (United States v. Lovasco (1977) 431 U.S. 783, 796.)
Improper questioning or argument by a prosecutor, which calls attention to a defendant’s post-Miranda silence, coupled with a trial court’s validation of the questioning, constitutes a violation of Doyle. (People v. Evans (1994) 25 Cal.App.4th 358, 369-370.) In this instance, the prosecutor asked defendant, “Did you ever call the police?,” “Did you ever tell the police that you were the victim of any kind of assault by [Hartzell]?,” “Isn’t this the first time you ever testified or mentioned the fact that [Hartzell] assaulted you?,” “Have you mentioned before today, in the last two and a half years, that [Hartzell] was attacking you on January 8th?,” and “Have you ever told anyone previously that on January 8, 2004, you were a victim of an assault by [Hartzell]?”
These “have you ever” questions encompass time periods that occurred (1) before defendant was arrested, (2) immediately after he was arrested, (3) immediately after he was “Mirandized,” and (4) the two and a half year period between the murder and trial. The prosecutor’s “have you ever?” questions include within their penumbra the defendant’s silence during the time period immediately following the Miranda warnings. To the extent that these questions refer to defendant’s silence in the time period immediately after Miranda warnings were given, the prosecutor’s reference to defendant’s silence is a Doyle violation. This violates the due process clause—“‘Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances.’” (Wainwright v. Greenfield, supra, 474 U.S. at p. 291.) It was unfair to tell defendant he is entitled to remain silent and then use that silence as the basis of impeachment. Moreover, defendant’s postarrest silence may not be particularly probative of guilt. (Greer v. Miller (1987) 483 U.S. 756, 762.)
The prosecution’s questions also focused on whether defendant mentioned or told “police” or “anyone” he was a victim. Our state Supreme Court in People v. Earp (1999) 20 Cal.4th 826 observed that the issue in Doyle was whether the prosecutor improperly commented on defendant’s failure to tell police his version of events after his right to silence was invoked. (Id. at p. 856.) It assumed for the sake of argument that Doyle prohibited comments on defendant’s failure to tell friends and family his version of events. (Ibid.) We follow that precedent here to the extent that the prosecutor asked whether defendant told anyone—which would include the police, friends, and family—that he was a victim of assault. Therefore, we find the government’s questions were improper.
Applying the Chapman standard of review, we conclude that the prosecution’s use of defendant’s postarrest silence to impeach his claim that Hartzell assaulted him was harmless beyond a reasonable doubt. (People v. Earp, supra,20 Cal.4th at p. 858; Brecht v. Abrahamson (1993) 507 U.S. 619, 629-630.) The evidence of defendant’s guilt was strong—Kerner and Meister saw defendant shoot Hartzell at a distance of approximately eight to ten feet. Defendant was the aggressor—he first shot at Kerner and then waved his gun towards everyone in the room. When defendant assaulted Meister by pointing the gun at her, Hartzell stepped in front of Meister and said “[d]on’t point the gun at my lady.” No one saw Hartzell assault the defendant.
Chapman v. California (1967) 386 U.S. 18.
Moreover, the forensic evidence corroborated Kerner and Meister’s testimony that defendant shot at Hartzell from a distance, while contradicting defendant’s testimony that Hartzell’s grasping his hand caused the gun to go off. The bullet entered Hartzell’s left arm while it was close to the body, and then it exited from the other side of the victim’s left arm and entered his body. The bullet entered at a height of four feet, four inches, passed horizontally through his body into adjacent organs (his spleen, pancreas, inferior vena cava, and liver) and exited out of the other side of the body at a height of four feet, three inches. As the bullet did not travel at an angle, but rather passed through Hartzell’s body in a straight line, it was consistent with Kerner and Meister’s testimony that defendant raised his arm at a height of four feet and shot Hartzell from eight to ten feet away, and inconsistent with defendant’s version that he and Hartzell struggled over the gun at close range, and the gun went off.
In addition, the references to defendant’s post-Miranda silence were minimal and did not encompass a large part of the two week trial. Finally, defendant admitted he told his attorney and the defense investigator his version that Hartzell was the aggressor and he was the victim.
B. Defense Counsel Did Not Argue Contrary to His Client’s Testimony.
During cross-examination, the prosecutor quizzed defendant regarding the struggle between the defendant and the victim over the gun:
“[Prosecutor]: So Jim grabs your arm?
“[Defendant]: Grabs my hand with the gun. I know he grabbed.
“[Prosecutor]: Did he grab the gun?
“[Defendant]: He grabbed me. That’s all I know is he grabbed me.
“[Prosecutor]: And how did the gun go off?
“[Defendant]: I have no idea. . . .
“[Prosecutor]: Do you remember pulling the trigger back?
“[Defendant]: I don’t remember pulling the trigger. I know Jim grabbed the gun, and [the] only thing in my mind is he’s going to take the gun. He’s pulling. I’m pulling. I’m trying to get out the door. The door is right here. I’m trying to leave.
“[Prosecutor]: So if we might, I have your arm here.
“[Defendant]: I think probably his hand was down some.
“[Prosecutor]: Grab your arm, is that okay?
“[Defendant]: Yeah.
“[Prosecutor]: So I’m grabbing your hand at below the wrist towards the knuckles, between the knuckles [and] the wrist?
“[Defendant]: Somewhere in that area. I can’t pinpoint exactly where it would be.
“[Prosecutor]: And then the gun goes off; is that fair?
“[Defendant]: Somewhere between there the gun definitely went off.
“[Prosecutor]: So the gun has gone off like this. I’m holding your right hand with my right hand. So the gun goes off, and where was Jim’s left-hand?
“[Defendant]: I have no idea. [¶] . . . [¶]
“[Prosecutor]: When the gun goes off what does Jim do?
“[Defendant]: I don’t even know when the gun went off, is what I’m trying to explain to you. Jim was like this—Jim grabs my hand, and I’m pulling this way and Jim is pulling that way. Only thing I can remember is this.
“[Prosecutor]: And you run out the door.
“[Defendant]: Exactly.”
In his closing argument, defense counsel announced to the jury: “I’m going to say something that may shock you, but I’m going to say it anyways. I wasn’t there. She wasn’t there. None of us were there. But there is a possibility, and this is not necessarily the smartest thing . . . that a defense attorney can say, but I think it’s there and I have to say it: There are two possibilities from my vantage point. One is there was a struggle over the gun and it went off. The other is there’s a struggle over the gun and amid the adrenalin and the fear and the drugs and everything else, that pulling back, defendant fired. You have to say that that’s a possibility.
“And I’m not going to walk away from that and say that that couldn’t have happened. And I know that’s not the greatest defense attorney move, especially considering that’s not what he said. Again, it goes back to memory. It goes back to consciousness. It goes back to in the heat of the moment of what happened. I don’t know. I’m not an expert but it certainly lines up with everything else that the doctor said. And it lines up even with what he said. It’s just something that you consider, which would lead you to involuntary manslaughter.”
Defendant contends that trial counsel rendered ineffective assistance because the attorney argued contrary to his testimony. He claims he was deprived of a fair trial because defense counsel informed the jury that he did not believe his client’s own testimony and exacerbated the situation by repeatedly pointing out to the jury that he should not be making the argument. We find no prejudicial error.
Defendant must meet two prongs to establish inadequate legal representation: he must show (1) under prevailing professional norms, his counsel’s performance was deficient because it fell below an objective standard of reasonableness, and (2) prejudice resulted from counsel’s act or omission. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692.) Prejudice will be found if there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (In re Sixto (1989) 48 Cal.3d 1247, 1257, citing Strickland, supra, at p. 694.) A defendant must also show that counsel’s act or omission was not attributable to a tactical decision which a reasonably competent, experienced criminal defense attorney would make. (People v. Gurule (2002) 28 Cal.4th 557, 611 (Gurule).)
Although we believe defense counsel’s self-deprecating comments, “I know that’s not the greatest defense attorney move,” or “this is not necessarily the smartest thing that a defense attorney can say” may not have necessarily inspired his client’s confidence; these remarks do not rise to the level of ineffective assistance. The attorney did not abandon defendant nor violate any professional ethics rule.
There is a strong presumption that counsel’s actions were based on sound trial strategy, even when counsel concedes some degree of guilt. (People v. Freeman (1994) 8 Cal.4th 450, 498.) Where evidence of guilt is quite strong, it is understandable that trial counsel, given the weight of incriminating evidence, would not make sweeping declarations of the defendant’s innocence but instead adopt a more realistic approach. Good trial tactics may depend on complete candor with the jury. (Gurule, supra, 28 Cal.4th at p. 612; People v. Lucas (1995) 12 Cal.4th 415, 446; People v. Powell (1974) 40 Cal.App.3d 107, 167.)
Based on this record, we conclude defense counsel never argued contrary to defendant’s testimony. Defendant testified that the victim grabbed his hand that was holding the gun below the wrist and above the knuckles. The victim pulled the gun one way and defendant pulled it another way. Defendant did not remember pulling the trigger. This testimony logically gives rise to the two scenarios posited by defense counsel—either the gun went off during the struggle or when pulling back, defendant fired the gun.
Under these circumstances, we cannot equate such candor with incompetence. (Gurule, supra, 28 Cal.4th at p. 612.) “‘A defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense. [Citation.] Tactical disagreements between the defendant and his attorney do not by themselves constitute an “irreconcilable conflict.” “When a defendant chooses to be represented by professional counsel, that counsel is ‘captain of the ship’ and can make all but a few fundamental decisions for the defendant.”’ [Citation.]” (People v. Roldan (2005) 35 Cal.4th 646, 682.)
There was no dispute that that defendant was involved in the shooting. Defendant testified to this fact. Faced with this evidence, it was patently reasonable for defense counsel to argue that the struggle caused the gun to fire or the pulling of the gun caused it to fire. It was a reasonable trial tactic to counter the prosecution’s claim of premeditated first degree murder with the theory that defendant committed involuntary manslaughter: defendant did not intend to kill Hartzell and that his struggle over the gun was not an act taken with a conscious disregard for the risk to human life.
Defense counsel’s tactic of honestly telling the jury that either the gun went off or the struggle caused defendant to pull back on the trigger was successful. The jury found defendant guilty of second degree and not first degree murder. In arguing that defendant’s pulling back on the gun was at most involuntary manslaughter, it inured to defendant’s benefit by limiting his exposure to a maximum sentence of four years, rather than an indeterminate life term for first degree murder as charged by the district attorney.
We conclude it was not ineffective assistance on defense counsel’s part to concede some measure of culpability and offer the jury another choice in defendant’s favor; it is a reasonable trial tactic. (People v. Bolin (1998) 18 Cal.4th 297, 334-335; In re Alcox (2006) 137 Cal.App.4th 657, 669.) Where the incriminating evidence was strong and counsel offered some other choice in the defendant’s favor, concessions in closing argument do not constitute ineffective assistance of counsel. (People v. Hart (1999) 20 Cal.4th 546, 561.)
Under any standard, defendant cannot show prejudice caused by counsel’s concessions in closing argument that “this is not the best defense move.” By virtue of the overwhelming evidence, there is no reasonable probability that the result of the proceeding would have been different.
C. There Is No Cumulative Error.
Defendant asserts that reversal is required due to cumulative errors which deprived him of a fair trial. We do not agree, as there were no errors to accrue. Therefore, we reject defendant’s argument that cumulative error deprived him of a fair trial or warrants reversal of the verdict in whole or in part. Defendant is entitled to a fair trial, not a perfect one. (People v. Houston (2005) 130 Cal.App.4th 279, 320.)
D. The Trial Court Erroneously Denied Defendant Credit for Actual Time Served.
Defendant contends that the trial court erroneously applied section 190, subdivision (c) in denying him credit for actual time spent in custody. The People concede that it was error not to give defendant credit for actual time served. We agree.
Section 190, subdivision (e) only limits a defendant’s post-sentencing, but not presentencing, credits. (People v. Cooper (2002) 27 Cal.4th 38, 40, fn. 2.) Section 2933.2 prohibits anyone convicted of murder from receiving work or conduct credits. Section 2900.5, subdivision (a) provides “[i]n all felony and misdemeanor convictions . . . all days of custody of the defendant . . . shall be credited upon his or her term of imprisonment.” (Italics added.) Accordingly, defendant is entitled to presentencing credits in the amount of 965 days for actual time served in custody from the date of arrest (January 10, 2004) to the date of sentencing (August 31, 2006).
2004 was a leap year.
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment reflecting that defendant receive 965 days credit for actual time served (§ 2900.5, subd. (a)), and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.) In all other respects, the judgment is affirmed.
We concur: HOLLENHORST Acting P.J., GAUT J.