Opinion
B188292
12-6-2006
THE PEOPLE, Plaintiff and Respondent, v. RICKY GRASHAWN ELLIOTT, Defendant and Appellant.
Earl C. Broady, Jr., for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews, and Paul M. Roadarmel, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant, Ricky G. Elliott, appeals from his convictions of three counts of criminal threats in violation of Penal Code section 422 and one count of shooting at an inhabited dwelling. (§ 246.) He contends: the evidence is insufficient; the trial court should have excluded gang evidence; defense counsel was ineffective for failing to object to certain gang evidence; defendants right to testify on his own behalf was violated; and there was cumulative error which requires reversal of the judgment. We reject these contentions and affirm the judgment.
II. SUFFICIENCY OF THE EVIDENCE CONTENTION
Defendant argues the evidence is insufficient as to both the criminal threat and shooting at an inhabited dwelling counts. Our sole function is to determine if "any rational trier of fact" could have found elements of the charged crimes to be present beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34.) The Supreme Court has held, "Reversal on this ground is unwarranted unless it appears `that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.) We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia, supra, 443 U.S. at p. 319; People v. Osband (1996) 13 Cal.4th 622, 690; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) Much, but not all, of the prosecution case consisted of prior inconsistent statements of persons who initially cooperated with the authorities. Crystal Robinson, Amber Hunter, and Daniel Doston all originally cooperated with sheriffs investigators. But at the time of trial, they testified they could not remember their prior statements or denied making them. The bulk of the evidence incriminating defendant came from testimony by sheriffs deputies concerning various witnesses prior inconsistent statements as to the threatening telephone calls and the shooting.
There was testimony in the form of prior inconsistent statements that on November 13, 2004, Ms. Hunter, Mr. Robinson, and defendant had a three-way telephone conversation. During that conversation, defendant said to Ms. Hunter, "`Im going to get you." Deputy Shai Shecklow described Ms. Hunters reaction to defendants threat, "She thought it meant he was going to kill her." Further, there was evidence, in the form of prior inconsistent statements, that on November 15, 2004, a second telephone conversation occurred between defendant, Ms. Hunter, and Ms. Robinson. Defendant said to Ms. Hunter, `"Go kiss your daughter good-bye because — because she not gonna have a Mama." As in the case of the first threat, Ms. Hunter thought this meant defendant was going to kill her. On November 18, 2004, there was evidence, again presented as a prior inconsistent statement of Ms. Hunter made to Deputy Shecklow that defendant threatened: `"I want to call you and say good-bye because youre going to die." After the November 18, 2004 conversation, Ms Hunter was "very afraid" of defendant. Deputy Shecklow described Ms. Hunters expressed opinion, "She was afraid that he was going to hurt her and her child." Deputy Shecklow testified: "She told me that she knew that he carried a gun, and that he was a gangster, and that the reasons that he just told her that he shot up your babys Daddys house; and she was also afraid he was going to hurt her."
Shortly after the third threatening telephone call, shots were fired into the 3461 Santa Barbara Court residence where there was evidence Mr. Smith resided along with Mr. Dotson and Ms. Hunter. According to Brandon Chavez, Ms. Hunter would occasionally spend the night at Mr. Smiths Santa Barbara Court residence with Mr. Dotson. Mr. Dotson was the father of a child born to Ms. Hunter. There was evidence in the form of a prior inconsistent statement that defendant telephoned Ms. Hunter after the shooting and reported that he had "shot up her babys Daddys house." This was in reference to the residence where defendant believed Mr. Dotson resided. There were bullet holes in the Santa Barbara Court residence and a car parked in front of the home.
Defendant was arrested on December 3, 2004. In the pick up truck in which defendant was riding, sheriffs deputies recovered a .25 caliber handgun. Four of the five rounds in the handgun were of the same brand found at the Santa Barbara Court shooting scene. But a firearms comparison of the rounds found at the Santa Barbara Court shooting scene and the handgun recovered from the El Camino in which defendant was riding were inconclusive. The foregoing constitutes substantial evidence defendant made the three criminal threats and shot at the Santa Barbara Court residence. (People v. Boyer (2006) 38 Cal.4th 412, 480-481; People v. Cuevas (1995) 12 Cal.4th 252, 263-275.)
III. GANG EVIDENCE
Defendant argues that the trial court improperly admitted limited testimony as to defendants alleged membership in a local street gang. (Evid. Code § 353; People v. Partida (2005) 37 Cal.4th 428, 433-434.) As to the merits, we review this contention for an abuse of discretion. (People v. Cox (2003) 30 Cal.4th 916, 955; People v. Champion (1995) 9 Cal.4th 879, 922.) As noted previously, Ms. Hunter claimed she could not recall the content of the threatening telephone conversations. There was evidence in the form of a prior inconsistent statement that Ms. Hunter was afraid of defendant because he was a "gangster"; i.e. a member of a local gang. The trial court reasonably could have concluded the challenged evidence was admissible to explain Ms. Hunters reluctance to testify as to her prior statements was the result of defendants gang membership. (People v. Green (1980) 27 Cal.3d 1, 19-20 overruled on another point in People v. Dominguez (2006) 39 Cal.4th 1141, 1155; People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449-1450.) Finally, we need not address the question of whether the challenged evidence was admissible to support the sustained fear element of the criminal threat charges. (§ 422; People v. Melhado (1998) 60 Cal.App.4th 1529, 1536.)
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that he was denied the right to effective assistance of counsel. Our standard of review was specified by the Supreme Court as follows: `"In order to demonstrate ineffective assistance, a defendant must first show counsels performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Second, he must show prejudice flowing from counsels performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsels 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 Avena (1996) 12 Cal.4th 694, 721.) (People v. Williams (1997) 16 Cal.4th 153, 215.) [¶] Where `there was no sound legal basis for objection, counsels failure to object to the admission of the evidence cannot establish ineffective assistance. (People v. Cudjo (1993) 6 Cal.4th 585, 616.) . . . "In order to prevail on [an ineffective assistance of counsel] claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission." (People v. Ray (1996) 13 Cal.4th 313, 349.) (People v. Williams, supra, 16 Cal.4th at p. 215.)" (People v. Majors (1998) 18 Cal.4th 385, 403.) In terms of the failure to object contention raised by defendant, the Supreme Court has held: `"Failure to object rarely constitutes constitutionally ineffective legal representation . . . ." (People v. Boyette (2002) 29 Cal.4th 381, 424.)" (People v. Huggins (2006) 38 Cal.4th 175, 206.)
First, he argues an objection should have been interposed to exhibit 5. Exhibit 5 consists of a transcript of an emergency telephone call made by Ms. Robinson or Ms. Hunter immediately after the shooting. According to Ms. Hunter, the emergency telephone call was made to the authorities after the shooting. She testified that all of the persons on the line, except the emergency operator, were extremely excited when the telephone call was made. Ms. Hunter initialed all of the lines on the transcript which set forth what she said during the telephone call. We cannot tell why no objection was interposed to the transcript. Potentially, the excited hearsay declarations in the transcript could be subject to Evidence Code section 1240 but we cannot be certain one way or another whether the statements would be admissible on that ground. (People v. Roybal (1998) 19 Cal.4th 481, 516; People v. Corella (2004) 122 Cal.App.4th 461, 465-466.) Further, there is nothing in the record on appeal as to what evidence the prosecution may have possessed that may have made it unwise to interpose any objection. There is no evidence how Ms. Robinson would have testified as to what she said during the telephone call. Ms. Hunter identified in court the portions of the transcript that reflected what she said. This a case where on direct appeal the record indicates there could have been good reasons not to object, a rationally based tactical decision, or there was no good reason. For direct appeal purposes, we cannot eliminate the potentiality there was a good reason not to object. (People v. Lawley (2002) 27 Cal.4th 102, 146; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
Second, defendant argues that a section 1118.1 entry of judgment of acquittal motion should have been made. As noted, there is substantial evidence defendant committed the criminal threats and shooting into a residence charges. A section 1118.1 motion may only be granted when there is no substantial evidence to support a charge. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 89-90; see People v. Hatch (2000) 22 Cal.4th 260, 269.) Because the trial court was obligated to deny a judgment of acquittal motion, defense counsel was not constitutionally ineffective for failing to raise a futile objection and there was no prejudice. (People v. Maury (2003) 30 Cal.4th 342, 419; People v. Price (1991) 1 Cal.4th 324, 387.)
Third, defendant argues the failure to call him as a witness to testify on his own behalf constitutes ineffective assistance of counsel. There is no evidence the decision that defendant not testify was anything other than a tactical decision. Hence, there is no merit to defendants ineffective assistance of counsel contention in this regard. (People v. Jones (2003) 29 Cal.4th 1229, 1254; People v. Williams (1988) 44 Cal.3d 883, 936.)
V. DEFENDANTS FAILURE TO TESTIFY
Defendant argues he was denied the right to testify because the trial court explained he could be subject of cross-examination on his gang status. The trial court tentatively indicated it would permit unspecified questioning on defendants alleged gang membership. This contention has no merit. (People v. Rowland (1992) 4 Cal.4th 238, 258; People v. Collins (1986) 42 Cal.3d 378, 383-384 (lead opn. of Mosk, J.).)
VI. CUMULATIVE ERROR
Defendant argues that the cumulative effect of errors committed by the trial court requires the reversal of his convictions. We disagree. There has been no showing of cumulative prejudicial error. (People v. Seaton (2001) 26 Cal.4th 598, 675, 691-692 [few errors identified were minor and either individually or cumulatively would not alter the outcome of the trial]; People v. Catlin (2001) 26 Cal.4th 81, 180 [same]; People v. Cudjo, supra, 6 Cal.4th at p. 630 [no cumulative error when the few errors which occurred during the trial were inconsequential].) Whether considered individually or for their cumulative effect, any of the errors alleged did not affect the process or accrue to defendants detriment. (People v. Sanders (1995) 11 Cal.4th 475, 565; People v. Cudjo, supra, 6 Cal.4th at p. 637.) As the California Supreme Court has held, "[A] defendant [is] entitled to a fair trial but not a perfect one." (People v. Cunningham (2001) 25 Cal.4th 926, 1009; People v. Mincey (1992) 2 Cal.4th 408, 454; People v. Miranda (1987) 44 Cal.3d 57, 123.) In this case, defendant received more than a fair trial.
VII. DISPOSITION
The judgment is affirmed.
We Concur:
ARMSTRONG, J.
KRIEGLER, J. --------------- Notes: All further statutory references are to the Penal Code unless otherwise indicated.