Opinion
C086220
04-14-2020
THE PEOPLE, Plaintiff and Respondent, v. CALEN RYAN DANE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 62141853)
A jury convicted defendant Calen Ryan Dane of attempted murder and first degree residential burglary, and defendant admitted serving a prior prison term. The trial court sentenced him to 15 years four months in prison, which included one year for the prior prison term enhancement.
Defendant now contends (1) the prosecutor committed misconduct by suggesting to the jury that it inspect a specific detail in a photograph introduced into evidence, (2) the evidence is insufficient to prove intent to kill, (3) defendant's trial counsel was ineffective because he did not move to suppress a field showup identification, and (4) the prior prison term enhancement is no longer authorized.
We conclude (1) defendant forfeited the prosecutorial-misconduct contention by failing to request that the jury be admonished, (2) the evidence was sufficient to support a finding that defendant intended to kill, (3) trial counsel's failure to move to suppress the showup identification was not prejudicial, and (4) the one-year sentence enhancement is no longer authorized.
We will modify the judgment to strike the one-year prior prison term enhancement and affirm the judgment as modified.
BACKGROUND
R.D. lived with J.S. and D.S. on a cul-de-sac near Colfax. S.Q., J.K., and L.K. also lived on the cul-de-sac. Defendant lived nearby.
In the early morning hours of October 30, 2015, S.Q. woke to discover defendant in her home. Defendant seemed dazed. S.Q. confronted defendant, who fled through her garage. S.Q. identified defendant in a field showup later that morning.
J.K. and L.K. also woke that night and heard someone in their backyard. The person tried to open their screen door. J.K. asked who was there, and a male voice responded, "Fuck you."
That same night, R.D. woke to the sound of his dog barking. He did not recall anything after that until he found himself on the floor in a pool of blood. He called out for help, and J.S. and D.S. responded. R.D. told them someone had been in the house. R.D. suffered several wounds to the top of his head that resulted in much loss of blood and required stitches and staples to close. Since that night, he has had headaches, neck problems, and ringing in his head.
A knife was found in the area where R.D. was attacked. It was inscribed with defendant's name, "C Dane." A credit card bearing the name of defendant's mother was also located in the same area. R.D. discovered later that his car keys had been taken. His keys were found in a bag in a search of defendant's bedroom. Defendant's DNA was on the handle of the knife found in R.D.'s home.
The jury found defendant guilty of the attempted murder of R.D. (Pen. Code, §§ 664/187, subd. (a)) and found that defendant inflicted great bodily injury (§ 12022.7, subd. (a)) and personally used a deadly or dangerous weapon (§ 12022, subd. (b)). The jury also convicted defendant of the first degree residential burglary (§§ 459/460, subd. (a)) of the R.D. residence and the first degree residential burglary (§§ 459/460, subd. (a)) of the S.Q. residence. Defendant admitted an enhancement allegation that he had served a prior prison term. (§ 667.5, subd. (b).)
Undesignated statutory references are to the Penal Code.
The trial court sentenced defendant to 15 years four months in prison, consisting of the following: the upper term of nine years for the attempted murder plus three years for infliction of great bodily injury and one year for use of a deadly weapon; a concurrent four years for the burglary of the R.D. residence; a consecutive one year four months (one-third the middle term) for the burglary of the S.Q. residence; and an additional one year for the prior prison term enhancement.
DISCUSSION
I
Defendant contends the prosecutor committed misconduct during the rebuttal portion of closing argument by suggesting to the jury that a photograph of defendant's bedroom taken the night of the crimes showed R.D.'s car keys that were later recovered from the bedroom. The Attorney General counters that defendant forfeited this contention by failing to ask the trial court to admonish the jury.
Exhibit 32 is a photograph of a pile of clothing and other articles; in the pile there appears to be a red zippered backpack or bag with something hanging out of it. As defense counsel acknowledged, it appears to be a fob or keys.
During closing argument, the prosecutor argued that whoever attacked R.D. also took his car keys and that those keys were found later in defendant's home when the deputies returned to search. The prosecutor predicted that the defense would argue that, in the days after the attack, other people had access to defendant's home. But the prosecutor further argued that it was unreasonable to conclude someone other than defendant put the keys in his home, considering all the evidence placing him at the scene of the attack on R.D.
In the defense's closing argument, counsel argued the keys were found at defendant's home weeks later.
In rebuttal, the prosecutor said: "[Defense counsel] in his argument just now talked about the fact that people had access to [defendant's] home in the weeks after the attack occurred. And I just want to bring your attention to one thing just to refute that point in case you are concerned as a jury, you are concerned that somebody else put the keys in [defendant's] room after October 30th of 2015. [¶] These are the clothes that were in [defendant's] room that night. In that white circle you see the red bag." At this point, defense counsel interposed an objection to the line of argument. After an unreported sidebar discussion, the prosecutor asked the jury to take a careful look at all of the photographs in evidence.
After the jury began deliberating, defense counsel put on the record that he had objected to the prosecutor's use of a photograph on the screen during rebuttal with an area of the photograph circled. Defense counsel acknowledged that there was an object in the photograph "that could appear to be the fob or a set of keys." Defense counsel claimed the use of the photograph was "beyond the scope of [the defense's] closing" and was "improper argument based on evidence that had not been presented." Defense counsel further argued that, even though the photograph was in evidence, it would be improper for the jury to infer that the apparent fob or keys in the photograph were the keys found several weeks later in defendant's room because it would not have been a reasonable inference, and, furthermore, the photograph was left up on the screen for the remainder of the prosecutor's rebuttal argument. Defense counsel argued that "this seemed to be a last minute end-around attempt in trying to present evidence that was not presented through any witness to the jury." Based on this argument, defense counsel moved for mistrial.
The trial court remembered that, after defense counsel's objection at sidebar, the trial court did not allow the prosecutor to continue with the argument. Defense counsel did not ask that the photograph be taken off the screen. The trial court denied the motion for mistrial.
" '[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.]" (People v. Stanley (2006) 39 Cal.4th 913, 952.) Here, the defense objected to the prosecutor's line of argument but did not request that the jury be admonished. Therefore, review of the asserted prosecutorial misconduct is forfeited.
Defendant claims a request for admonishment would have been futile, but we disagree. We presume jurors follow instructions. (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 861.) And we presume that, if the jurors had been instructed to disregard the prosecutor's argument concerning exhibit 32, the jury would have followed that instruction. There was nothing so inflammatory or prejudicial about the argument that would prevent the jury from following such an admonition.
II
Defendant next asserts the evidence was insufficient to support a finding that he intended to kill R.D.
A conviction for attempted murder requires a showing of a "specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Lee (2003) 31 Cal.4th 613, 623.) "Because direct evidence of a defendant's intent rarely exists, intent may be inferred from the circumstances of the crime and the defendant's acts." (People v. Sánchez (2016) 63 Cal.4th 411, 457.) Whether a defendant acted with such intent is a question for the trier of fact that can be proven by either direct or circumstantial evidence. (People v. Lashley (1991) 1 Cal.App.4th 938, 945-946.)
In People v. Avila (2009) 46 Cal.4th 680, the defendant became involved in a confrontation with a group of friends socializing in a parking lot. (Id. at p. 686.) The group included David Montoya. (Ibid.) After the confrontation appeared to dissipate, the defendant grabbed a large knife. (Ibid.) As Montoya tried to roll up the window of his car, the defendant shattered the window and stabbed him more than twenty times. (Ibid.) The defendant also stabbed two other members of the group in the heart, killing them. (Ibid.) In finding sufficient evidence of an intent to kill Montoya, the California Supreme Court observed that the "defendant repeatedly attempted to stab Montoya, an unarmed and trapped victim, and succeeded in stabbing him in the arm and leg. This evidence alone is substantial evidence of defendant's intent to kill." (Id. at pp. 701-702.)
Here, defendant went into R.D.'s home, where R.D. was sleeping. Having invaded the home, defendant attacked the barely-awake victim with a knife, striking R.D. multiple times in the head and causing serious injury. There is no evidence of mutual combat or mistake. Instead, defendant went for R.D.'s head with a knife. This evidence was sufficient to support a reasonable inference that defendant intended to kill R.D.
Defendant argues on appeal that a knife is not inherently deadly, the attack produced only scalp lacerations, defendant had no preexisting relationship with R.D., defendant's other crimes on the night of the attack were inconsistent with an intent to kill R.D., and defendant left his knife behind. While these may have been circumstances to argue to the jury, they do not call into question the sufficiency of the evidence to support a reasonable jury inference that defendant intended to kill R.D.
III
On the morning of the crimes, S.Q. was transported to defendant's nearby home, where she identified him. Defendant's failure to file a suppression motion forfeits review of the Fourth Amendment issue. (People v. Miranda (1987) 44 Cal.3d 57, 80.) Nevertheless, defendant contends his trial counsel provided constitutionally deficient representation because he did not move to suppress the field showup identification of defendant by S.Q.
"To succeed in a claim of ineffective assistance of counsel, defendant must show that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms and that, but for counsel's error, the outcome of the proceeding, to a reasonable probability, would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 ; People v. Ledesma (1987) 43 Cal. 3d 171, 216-218.)" (People v. Lawley (2002) 27 Cal.4th 102, 133, fn. 9 (Lawley).) It is not necessary for the appellate court to examine the performance prong of the test before examining whether the defendant suffered prejudice as a result of counsel's alleged deficiencies. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." (Strickland, at p. 697.)
Deputy Joseph Jacinto was dispatched at about 1:20 a.m. to the cul-de-sac to investigate suspicious circumstances. When he arrived, he was told there was an injury, and he encountered R.D., who was bleeding. Deputy Jacinto saw the knife with the name "C Dane" on it, as well as the credit card with the name of defendant's mother, and he reported those findings to dispatch.
During Deputy Jacinto's investigation that night, he spoke with S.Q. and took an initial statement from her. Deputy Jacinto was later informed that other deputies had detained a male subject, and Deputy Jacinto was asked to transport S.Q. for a field identification. At around 3:18 a.m., Deputy Jacinto read S.Q. an admonishment about field identifications. The admonishment informed S.Q. that she was not obligated to identify anyone and that she should not conclude that the person committed a crime just because she was being shown the person. He then transported S.Q. in the front passenger seat of his patrol vehicle to a nearby address between a quarter-mile and a half-mile away. He parked and activated forward-facing bright lights on his vehicle. A deputy told S.Q. that the clothing would not the same.
When S.Q. saw defendant, who was handcuffed, she said she was 80 percent sure it was the person she had seen. The clothing was throwing her off, but the facial hair, the color of his hair, and the shape of his face were what she remembered. Deputy Jacinto reminded S.Q. that it was just as important to be able to set him free if he was innocent. S.Q. said the person had been wearing a faded red shirt. S.Q. was asked whether it was red and black, and S.Q. responded that it could have been red and black. A shirt was then shown to S.Q., and she identified it as the shirt the person was wearing. She was 100 percent sure about the shirt.
" ' "In order to determine whether the admission of identification evidence violates a defendant's right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances. . . ." ' " (People v. Thomas (2012) 54 Cal.4th 908, 930-931.) The defendant bears the burden of demonstrating the identification procedure was unduly suggestive. (In re Carlos M. (1990) 220 Cal.App.3d 372, 386 (Carlos M.).) Showups -- even single person showups -- for purposes of field identification are not inherently unfair and are encouraged. (People v. Ochoa (1998) 19 Cal.4th 353, 413; Carlos M., at p. 387.)
A field showup may be necessary for a number of reasons: "[T]he justification for that onsite confrontation, as opposed to a formal lineup procedure, is generally the need to exclude from consideration innocent persons so that the police may continue to search for the defendant while it is reasonably likely that he is still in the immediate area." (People v. Nash (1982) 129 Cal.App.3d 513, 517.) Thus, prompt identification of a suspect close to the time and place of the offense serves a legitimate purpose in quickly ruling out innocent suspects and apprehending the guilty. (People v. Martinez (1989) 207 Cal.App.3d 1204, 1219.) Such identifications are also likely to be more accurate than a more belated identification because they permit the police to conduct an identification procedure while the events are still fresh in the witness's mind. (Carlos M., supra, 220 Cal.App.3d at p. 387).
Here, the deputies quickly identified a suspect and used S.Q. to confirm or reject the idea that they had the right person. Under these circumstances, and with the admonishment given to S.Q. that she was not obligated to identify anyone and that it was just as important to clear an innocent person, S.Q.'s field identification was not unduly suggestive. In addition, there was a need to identify whether defendant was the right person quickly so that the deputies could keep searching in the critical hours after the attack.
Defendant argues the showup was unduly suggestive because it occurred close to the scene of the crimes, defendant was handcuffed, S.Q. was told he was wearing different clothing, S.Q. was asked if the shirt was red and black, and S.Q. was shown the red and black shirt. However, none of these circumstances made the field showup identification unduly suggestive. S.Q. was 80 percent sure based on defendant's face and hair, and she was 100 percent sure about the shirt.
Defendant also argues the field showup identification was unnecessary because a line-up identification could have been done on a different day. But, as discussed above, there are good reasons to do a field showup identification when it can be done shortly after the crime and in the vicinity of the crime. Therefore, the identification was proper even if a line-up could have been done on a different day.
The record does not support defendant's suggestion that the field showup identification would have been suppressed if his trial counsel had made a motion to suppress. "[T]rial counsel is not required to make frivolous or futile motions, or indulge in idle acts." (People v. Reynolds (2010) 181 Cal.App.4th 1402, 1409.) Because a motion to suppress the field showup identification would not have been granted, defendant cannot establish that it is reasonably probable defendant would have obtained a better result if trial counsel had moved to suppress the field showup identification. (Lawley, supra, 27 Cal.4th at p. 133, fn. 9.)
Under the circumstances, defendant's claim of ineffective assistance lacks merit.
IV
Defendant contends we must strike the enhancement under section 667.5, subdivision (b) because it is no longer authorized. He argues the one-year prior prison term enhancement must be stricken under the amendment provided in Senate Bill No. 136 (2019-2020 Reg. Sess.), effective January 1, 2020. The People agree, and so do we.
Senate Bill No. 136 modified section 667.5, subdivision (b), to eliminate one-year sentence enhancements for prior prison terms served unless the prior prison term involved a conviction for a sexually violent offense (which is not the case here). The statute is retroactive and applies to cases not yet final as of its effective date. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303, 308; In re Estrada (1965) 63 Cal.2d 740.) Accordingly, we will strike the one-year sentence enhancement imposed under section 667.5, subdivision (b).
Because we will strike the section 667.5, subdivision (b) enhancement, we need not consider defendant's other contentions relating to that enhancement.
DISPOSITION
The judgment is modified to strike the one-year prior prison term enhancement imposed under section 667.5, subdivision (b), and the judgment is affirmed as modified. The trial court is directed to prepare an amended abstract of judgment reflecting the judgment as modified and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
/S/_________
MAURO, J. We concur: /S/_________
RAYE, P. J. /S/_________
ROBIE, J.