Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Bernardino County, Super. Ct. No. FSB053998 Ronald Christianson, Judge.
O'ROURKE, J.
A jury convicted Rahsaan Hanif Greene of murder (Pen. Code, § 187, subd. (a); count 1) and first degree residential burglary (§ 211; count 2). As to count 1, the jury found true an allegation that Greene personally and intentionally used a firearm (§ 12022.53, subd. (b)) and personally and intentionally discharged a firearm that proximately caused death (§ 12022.53, subd. (d)). As to count 2, the jury found true an allegation that he personally used a firearm (§ 12022.53, subd. (b)). Greene admitted five prior prison terms. The court sentenced him to a term of 70 years to life as follows: on count 2, a term of 20 years consisting of the six-year upper term for the offense plus an additional 10 years for the firearm use (§ 12022.53, subd. (b)) and four years for the remaining prior prison terms; on count 1, a term of 50 years to life consisting of 25 years to life for the offense plus an additional 25 years to life for the firearm use. (§ 12022.53, subd. (d).)
All statutory references are to the Penal Code unless otherwise specified.
Greene appeals, contending the court prejudicially erred by instructing the jury to consider his extrajudicial statements with caution under an earlier version of CALCRIM No. 358. Greene further contends his trial counsel rendered ineffective assistance of counsel by failing to object to the instruction. We affirm the judgment.
FACTUAL BACKGROUND
David Pina testified that on January 15, 2006, he and Greene bought ecstasy pills from Robert Carreon. After sampling the drugs, Greene claimed the pills "were not strong." Pina telephoned Carreon and told him Greene said the pills were no good. Carreon told him to return the pills and he would refund the money. At the time, Carreon was at his home with his girlfriend Mouly Chhan. Chhan testified that after the phone conversation, Carreon walked to the front door and returned to his bedroom with two men whom Chhan later testified she was "very certain" were Greene and Pina. Pina handed Carreon a plastic bag containing ecstasy pills. Carreon gave the bag to Chhan and removed money from a jewelry box. Carreon passed the money to Pina. Pina gave some of the money to Greene.
David Pina was tried jointly with Greene as a codefendant, but the jury acquitted him.
Chhan testified that after the exchange, Greene told Carreon "it was no good... he had been doing this for a long time, and that he came all the way out here from Las Vegas." Carreon replied he didn't know, and "he just gets what he gets." Greene and Pina began to step backwards and Greene pulled out a gun from his jacket pocket. Greene pointed the gun at Carreon, instructed him to sit on the bed, ordered Chhan to move to the corner, and threatened to shoot Carreon, telling him "not to play with him." Carreon attempted to stand up, but Greene, holding the gun in his right hand, punched him in the face with his left hand. Carreon said "Please don't kill me, " and raised his hands, but Greene shot him in the abdomen. Pina ran out of the room. Greene pointed the gun at Chhan, and standing one foot away, demanded the bag of pills from her, and ran out of the room with it.
Carreon's mother heard a pop sound and Chhan's scream, and observed the two men run out of her son's bedroom. Carreon's mother testified Pina was approximately five feet eight inches tall and wore a baseball cap and a camouflage T-shirt. She stated the other man was approximately five feet nine inches tall, wore a black beanie, black pants, and a puffy quilted jacket.
A pathologist testified the cause of Carreon's death was a gunshot wound to the abdomen that led to rapid blood loss to Carreon's brain. The manner of death was homicide.
San Bernardino City Police Department Detective Gary Robertson interviewed Chhan, and she helped retrieve a voicemail from Carreon's cell phone. Through records obtained from both Pina's and Carreon's phone providers, Detective Robertson noted a series of calls between Carreon and Pina on the day of the murder. Detective Robertson showed Chhan a photo lineup and she identified Pina as one of the men involved in the shooting.
On February 23, 2006, the Las Vegas Metropolitan Police Department executed a search warrant at Greene's home on an unrelated matter. Greene was sleeping on the living room couch. Police recovered a loaded.45-caliber handgun between the couch cushions. They also collected keys for the residence, ecstasy pills, and athletic shoes matching Greene's shoe size. Ballistics testing revealed the gun matched the murder weapon. In a live lineup in Las Vegas, Chhan identified Greene as the shooter, noting that Greene's eyes had triggered her memory.
In March 2007, Phillip Richardson wrote a letter to the district attorney's office from prison stating he had information on Pina's case that he could offer in exchange for the prosecutor's help. Detective Robertson interviewed Richardson, who said Greene came to his San Bernardino home sometime in January 2006 and attempted to sell him a gun. Richardson described the gun as a "dark color four five Beretta." Richardson said Greene told him that during a robbery gone bad, he "shot some white dude... and needed to get rid of it." Richardson testified Greene said he "bought some pills from the dude, and then went back to retrieve 'em' cause he said they were no good. And while he was there he decided to just take the money and the pills." Richardson stated that Greene described the victim as "soft" and "an easy robbery to jack." Greene also told Richardson the pills were good.
Greene testified he sold ecstasy pills and marijuana out of a drug house in Las Vegas where Mario Sanders stayed. On January 15, 2006, his driver drove him and Sanders to San Bernardino to meet Pina and buy ecstasy pills. The men picked up Pina and drove to meet Carreon to buy the drugs. Afterwards, Greene sampled the drugs, but did not feel its effects. Pina called Carreon and told him the pills did not work. They went to Carreon's house to return the pills and get their money. Greene did not enter Carreon's house, but waited by the car while Pina and Sanders went inside.
Pina corroborated Greene's version of the events and testified that Sanders followed him into Carreon's bedroom, where Chhan was located. According to Pina, he counted the pills and Carreon returned the money to him. Sanders pulled out a gun and Carreon grabbed a knife. Sanders shot Carreon and Pina and Sanders ran out of the room.
Greene testified he saw Pina and Sanders run out of the house and jump into the car. Pina testified that Greene stated "Man, I knew I should have went in there, " and that Greene said to Sanders, "Man, what the fuck did you do?" Pina said, "Man, he shot him." Greene asked Sanders why he shot Carreon and Sanders replied, "He came at me with a knife." After dropping off Pina, Sanders and Greene drove back to Las Vegas.
Pina testified Greene telephoned him and asked "what happened because he still didn't know what happened." Greene apologized, saying "he never meant for none of that to happen. That wasn't nothing that was planned."
Greene's wife, Lillian Greene, testified that Sanders gave her a ride to the drug house in the middle of January. During the ride, Sanders received a telephone call and she heard the caller tell Sanders the police arrested Pina and "everybody in San Bernardino knew that you shot someone." She asked Sanders what happened and Sanders stated he had shot someone because "[h]e wouldn't give him the shit" and "pulled out a knife on him."
DISCUSSION
Greene contends the court prejudicially erred by instructing the jury to view his extrajudicial statements with caution because the instruction caused the jury to view even the exculpatory portions of his statements with suspicion. Greene points in particular to Pina's testimony of Greene's statement: "Man, I knew I should have went in there, " and Greene's response to Sanders, "Man, what the fuck did you do?"; Greene's statement to Pina during a telephone conversation that Greene "still didn't know what happened"; Greene's apology for bringing Sanders along, and statement: "I never meant for none of that to happen. That wasn't nothing that was planned"; and Greene's testimony of Pina's remark about, "Man, [Sanders] shot him."
Greene asserts no objection to the instruction was necessary because the instruction adversely affected his substantial rights. The People concede the instruction contained legal error, but contend the error was harmless.
The court instructed the jury with the 2007 version of CALCRIM No. 358, which stated: "You have heard evidence that the defendant made oral statements before the trial. You must decide whether or not the defendant made any of those statements in whole or in part. If you decide that the defendant made such statements, consider the statements, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give such statements. You must consider with caution evidence of a defendant's oral statement unless it was written or otherwise recorded."
A trial court has a sua sponte duty to instruct the jury to view evidence of a defendant's oral admissions with caution. (People v. Carpenter (1997) 15 Cal.4th 312, 392, superseded by statute on other grounds as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.) The purpose of a cautionary instruction is to assist the jury in determining if a statement was in fact made. (Carpenter, supra, at p. 393.) A cautionary instruction only applies to a defendant's inculpatory statements. (People v. Slaughter (2002) 27 Cal.4th 1187, 1200.) Instructional error involves state law and is reviewed under the People v. Watson (1956) 46 Cal.2d 818 harmless error standard. (People v. Dickey (2005) 35 Cal.4th 884, 905.) A " 'miscarriage of justice' should be declared only when the court, 'after an examination of the entire cause, including the evidence, ' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Watson, supra, at p. 836.) The test must be "based upon reasonable probabilities rather than upon mere possibilities." (Id. at p. 837.) Further, challenged instructions may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record. (People v. Tuggles (2009) 179 Cal.App.4th 339, 365.)
The 2007 version of CALCRIM No. 358 was erroneous because as stated in People v. Slaughter, supra, 27 Cal.4th at page 1200, a cautionary instruction does not apply to a defendant's exculpatory statements. The current version of CALCRIM No. 358 corrects the error and now states in the cautionary portion: "Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement is written or otherwise recorded." Nevertheless, it is not reasonably probable that a result more favorable to Greene would have been reached if the cautionary instruction had been limited only to Greene's incriminating statements.
Greene asserts the instruction to view his extrajudicial statements with caution was equivalent to directing the jury to distrust his entire version of the events. However, in evaluating a defendant's inculpatory or exculpatory statements, the jury's primary focus is whether the witness is credible or is fabricating the testimony, and instructions on witness credibility may provide adequate guidance for the jury to properly evaluate the evidence of the defendant's statements. (People v. Dickey, supra, 35 Cal.4th at pp. 906-907.)
Here, both defendants testified at trial and corroborated each other's testimony regarding Greene's exculpatory statements. Although the trial court's instruction may have led the jury to view both Greene's inculpatory and exculpatory out-of-court statements with caution, the jury also heard the direct testimony of each defendant. We also note the jury was instructed at length regarding how to evaluate a witness's credibility with CALCRIM No. 226. We conclude the jury reasonably determined how much weight to give Greene's exculpatory statements. Under these circumstances, it is not reasonably probable the jury would have reached a different result had the instruction been limited only to Greene's inculpatory statements.
Moreover, substantial evidence supported Greene's conviction. Chhan witnessed the murder in a small bedroom where she sat only feet away from the shooter. She positively identified Greene as the shooter at a live lineup and correctly identified the hands he used to hold the gun and punch Carreon. Chhan and Carreon's mother correctly described the clothes Greene wore. Both Chhan and Pina testified the shooter stated "he had been doing this for a long time." Greene admitted he started selling drugs in 2001, but testified that Sanders only recently began selling marijuana. There is no evidence in the record to suggest that Sanders sold ecstasy pills. Police uncovered the murder weapon in Greene's couch. The officers also found house keys for the front door, ecstasy pills, and shoes matching Greene's shoe-size. Further, Richardson testified that Greene admitted to shooting someone with a gun and Greene attempted to sell a pistol with similar characteristics to the murder weapon. The jury was entitled to rely upon this evidence to find beyond a reasonable doubt that Greene was Carreon's shooter.
Because we conclude the jury had substantial evidence to support Greene's conviction and the trial court properly instructed the jury on how to evaluate a witness's credibility, there is no reasonable probability the jury would have reached a different result had the trial court limited its cautionary instruction only to Greene's inculpatory statements.
II
Greene also contends he received ineffective assistance of counsel because his trial counsel did not object to the jury instruction. This claim fails in light of our conclusion Greene has failed to establish any merit to his substantive claims or prejudice from the alleged error. (People v. Price (1991) 1 Cal.4th 324, 440.) A defendant seeking relief on the basis of ineffective assistance of counsel must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel's failings. (People v. Fosselman (1983) 33 Cal.3d 572, 584; see also Strickland v. Washington (1984)466 U.S. 668, 687-696.) It is not necessary to determine whether counsel's challenged action was professionally unreasonable in every case, however. If the reviewing court can resolve the ineffective assistance claim by first deciding whether there is a reasonable probability that the outcome would have been different absent counsel's challenged actions or omissions it may do so. (Strickland, at p. 697.) Because Greene has not satisfied the second part of the test, we need not consider whether trial counsel's performance was professionally unreasonable.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McDONALD, Acting P. J., IRION, J.