Opinion
A152184
11-20-2019
THE PEOPLE, Plaintiff and Respondent, v. JAMONTEE JONES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51415736)
Defendant Jamontee Jones appeals from his conviction of murder and related offenses. He contends: (1) the trial court erred by not excluding a witness's identification of him; (2) the prosecutor committed misconduct during closing argument and trial counsel was ineffective in failing to object; (3) trial counsel was ineffective in failing to correctly advise defendant of his right to testify and in not calling defendant to testify; and (4) cumulative error warrants reversal. In a supplemental opening brief, defendant also argues his case must be remanded for resentencing pursuant to Senate Bill No. 620 (2017-2018 Reg. Sess.). In addition, we asked for supplemental briefing concerning the propriety of defendant's determinate sentence in light of People v. Sanders (2010) 189 Cal.App.4th 543 and Penal Code section 1170.1, subdivision (a).
We conclude a remand is necessary in light of Senate Bill No. 620. We will also remand with instructions that the trial court correct the sentence on the attempted murder count. Otherwise, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with the murder of Amber Abangan (Pen. Code, § 187, subd. (a), count 1). He was also charged with the attempted murder of David B. Jr. (§§ 187, subd. (a), 664, count 2), assault with a semiautomatic firearm against David B. Sr. (§ 245, subd. (b), count 3), and being a felon in possession of a firearm (§ 29800, subd. (a)(1), count 4). As to count 1, it was alleged defendant personally and intentionally discharged a firearm causing great bodily injury and death within the meaning of section 12022.53, subdivision (d). As to count 2, it was alleged he personally used, and personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (b), (c) and (d). As to count 3, it was alleged he personally used a firearm within the meaning of section 12022.5, subdivision (a), and personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a).
All further statutory references are to the Penal Code unless otherwise specified.
We will use the last initial of the victim's family name pursuant to California Style Manual (4th ed. 2000) section 5:12. Subsequent references to the members of the B. family will use their first names and suffixes, where applicable, or initials. We will refer to witnesses by their first name and last initial.
The evidence at trial included the following.
A. The Fistfight
On the night of September 7, 2013, the B. family went to a roller skating rink in Antioch. Eighteen-year-old David Jr. bumped into Nathaniel H. as he walked to the skating rink's patio. Subsequently, Nathaniel H. heard two individuals, one with dreadlocks, say something about having a "30, a stick, a gun" or "30's" in their car. Nathaniel H. later saw the man with dreadlocks and David Jr. engage in a fistfight on the patio. Before it began, the man with dreadlocks cast off his green sweater. Skating rink employee, Kim L., broke up the fight by grabbing the man with dreadlocks. Kim L. noticed that an African-American woman dressed in all white seemed to be with the man with dreadlocks. Nathaniel H. gave the green sweater to the woman in white, who returned it to the man with dreadlocks. Jeffrey W., owner of the skating rink, and his son Jason W., an employee, came outside as the fight ended.
The slang term "30 stick" means a high capacity magazine.
B. The Brandishing and the Commotion in the Skating Rink
After the fight, Jeffrey W. and Jason W. returned to the rink and saw a commotion. They learned someone had flashed a gun in the lobby area and then left. Hearing someone say there was a gun outside, Jeffrey W. and Jason W. went outside and saw someone in a group of four to six people pick up what they assumed was the gun. Jeffrey W. and Jason W. followed the group to a gold Toyota Solara in the parking lot.
Meanwhile, David Sr. (David Jr.'s father), who was skating inside, noticed a commotion near the entrance and wanted to leave. He found David Jr. sitting alone and out of breath. As father and son made their way to exit, a man confronted David Jr. about fighting his "partner," whom the man described as a light-skinned male with dreadlocks. David Sr. diffused the confrontation and pulled David Jr. outside where they met with K.B. (David Sr.'s wife) who had come to pick them up. K.B. had one of David Jr.'s siblings with her. As the four B. family members walked to the parking lot, David Sr. told K.B. that David Jr. had been fighting. K.B. told David Sr. that something was going on and that she had seen a gun outside the skating rink.
C. The Shooting
As the B. family reached their car, a man cursing at a woman drew K.B.'s attention. K.B. saw that man begin shooting a gun and dropped to the ground. K.B. heard at least 12 shots fired towards the passenger side of her car, where David Sr. and David Jr. stood. K.B. described the shooter as a brown, light skinned male with dreadlocks.
David Sr. also observed the man speaking rudely to the woman. He thought the man was wearing a black or brown hoodie and did not recall seeing dreadlocks. As David Sr. was about to enter his car, he saw David Jr. raise his arms to about shoulder height with his hands over his head. Within seconds, David Sr. heard gunfire. David Sr. was shot three times from behind. He did not see the shooter.
David Jr.'s younger sister, Ky.B., was sitting in the family car when the shooting occurred. She saw the shooter, who was about 20 feet away, pull out the gun. She then heard multiple shots as she ducked inside the car. She described the shooter as a man in a green jacket with slightly longer than shoulder-length dreadlocks, half pulled back.
Kim L., who was on the pathway to the parking lot at the time of the shooting, also saw the shooter. She described him as wearing a white shirt and having long dreadlocks or braids pulled back.
Jeffrey W. and Jason W. also witnessed the shooting. They had seen two African-American males by the gold Solara: one with dreadlocks in a green sweater or jacket, and a large male with short hair wearing a white t-shirt. There was also an African-American female wearing all white by the Solara. Jason W. remembered her from the patio when the fistfight occurred. The male in the white shirt tried to stop Jason W. from recording the Solara's license plate number, but Jason W. got it just as he saw gunfire in front of him. Jason W.'s immediate recollection of the shooter was of a man with a shaved head and a striped shirt. Jeffrey W. recalled the shooter as being the man with dreadlocks in the green jacket. Shortly after the shooting, Jason W. and Jeffrey W. saw the Solara and the three individuals leave the scene. Ky.B. also observed that the gunman and the champagne colored car were gone after the shooting.
In the aftermath, Amber Abangan, who had been at the skating rink to attend a birthday party, lay bleeding on the ground near the rear passenger side of the B. family car. K.B. tried to help, applying pressure to her wounds before others stepped in. K.B. then saw that David Sr. and David Jr. had been shot. David Jr. and David Sr. were taken to the hospital and survived. Tragically, Abangan died. Her autopsy revealed she was shot four times.
D. The Investigation and Defendant's Arrest
Jason W. provided the police with the license plate number of the Solara. Detective Bai's investigation revealed the Solara belonged to Arlee W. On September 24, 2013, Bai obtained photographs of Arlee W. and defendant after discovering connections between the two (e.g., they shared multiple addresses). In his photo, defendant had braids or dreadlocks. Detective Bai compared the photos with the skating rink's surveillance video, and it appeared Arlee W. was there the night of the crimes with someone in a green hooded sweatshirt, who appeared to be defendant.
On the same day, Detective Bai returned to the skating rink with four photographs, including one of defendant and one of Arlee W. Jason W. viewed them and initially said he recognized defendant as having been involved in the fight preceding the shooting. Later, Jason W. said defendant was the shooter. Subsequently, Bai put together six-pack photo lineups with defendant's photograph and filler photographs resembling him. On September 25, 2013, Bai showed the lineups to K.B. and David Jr., who both identified defendant as the shooter. Bai testified when K.B. identified defendant, she said "she wasn't a hundred percent." Ky.B. selected someone other than defendant. Nathaniel H., who only saw the fight, identified defendant in a photo lineup as one of the fighters. Nathaniel H. also told Bai the brother of the fighter with dreadlocks had a gun and extended magazine in his pants. Jeffrey W., Jason W., and Kim L. were not shown photo lineups.
In November 2013, defendant was stopped by police and fled on foot after falsely identifying himself, but was apprehended. Defendant refused to give his name until one officer explained they would need it to release him on bail. After defendant provided his name, the officers learned he had a warrant for murder.
E. The Defense Case
Defendant's defense at trial centered on misidentification. The witnesses who saw the shooting were K.B., David Jr., Ky.B., Jason W., Jeffrey W., and Kim L. Of these witnesses, K.B., David Jr., and Kim L. were asked in court if they could identify the shooter. K.B. and Kim L. identified defendant as the shooter. K.B. testified she "tunneled in" on defendant's face at the crime scene and would never forget his face. David Jr. evaded questions on the stand and identified no one in court, but his prior statements to Detective Bai were admitted. This included David Jr.'s statement that the shooter was the man with dreadlocks whom he fought, and his identification of defendant in the photo lineup. In addition to David Jr.'s out-of-court identification, evidence that Jason W. and K.B. identified defendant as the shooter by photo was also presented. When testifying about her selection of defendant's photograph during the lineup, K.B. denied being anything but absolutely sure.
Nathaniel H.'s photo lineup identification of defendant as one of the men in the fistfight was also presented, as was Kim L.'s testimony that the shooter was involved in the fight. Kim L. acknowledged she told the police after the shooting that she was unsure if the shooter was one of the fighters and also that she watched surveillance footage of the fight with Jason W.
In court, K.B., Ky.B, Jeffrey W., Jason W., and Kim L. all indicated the shooter was an African-American man with dreadlocks. Jeffrey W. denied giving another description to an officer after the shooting, and denied ever watching the skating rink surveillance video.
Jason W. admitted he told police immediately after the shooting that the shooter had a shaved head and striped shirt. He stated he changed his description after he watched the surveillance footage. He said he did not remember who was with him when he watched the video, but thought his father might have been. He asserted he was confident the shooter was the man with dreadlocks in the green hoodie, but setting aside what he saw on the video, his actual memory of the shooter was a bald man not wearing green.
Detective Bai testified the shooting occurred around 1:39:59 a.m. She described what could be seen on the surveillance videos, including that: at 1:33:02, defendant and David Jr. fought; at 1:38:25, Arlee W. picked up an unknown object from the walkway and defendant, who was beside Arlee W., did not pick up anything; at 1:39:01, defendant, Arlee W., and a female congregated around the suspect vehicle; at 1:39:57, Arlee W. was facing away from the B. family's car and David Jr. raised up his arms; and at 1:39:58, David Jr. could be seen running. The shooting itself was not captured on video.
At trial, it was stipulated that Arlee W. and defendant were half-brothers and that a green zip up hoodie was found in defendant's bedroom. A criminal analyst testified that on the night of the crimes, defendant's and Arlee W.'s phones were utilizing cell phone towers in the Antioch area from midnight to around 1:40 a.m., at which point they started moving westward to Pittsburg then Walnut Creek.
After a day of deliberations, the jurors found defendant guilty of first-degree murder and all the remaining charges. They also found all the enhancement allegations true. After denying a motion for new trial, the trial court sentenced defendant. Defendant appeals.
DISCUSSION
A. Suggestive Identification
Defendant first contends the trial court erroneously denied his motion to exclude Jason W.'s identification of him.
i. Additional Facts
Defendant moved to exclude Jason W.'s identification on the ground the identification procedure Detective Bai used was impermissibly suggestive. At the hearing to determine admissibility, Bai was the only witness. The following is a summary of her testimony.
Shortly after the shooting, Jason W. told Detective Bai his memory of the shooter differed from others, at which point Bai stopped him and told him she was only interested in what he remembered. Jason W. then described the shooter as six foot, two inches, with short hair, and wearing a striped shirt. Bai knew some other witnesses had described the shooter as having braids and wearing a green sweatshirt.
After further investigation led Detective Bai to obtain photographs of Arlee W., defendant, and two other men, Bai met with Jason W., showed him the four photographs, and asked if anyone looked familiar or if any of them were at the skating rink the night of the crimes. Jason W. said defendant was involved in the fight on the patio. Bai left asking no further questions, but returned about three hours later at the behest of her supervisor who thought she should have asked follow-up questions. During this later interaction, Bai asked Jason W. to identify the four photographs he previously viewed, then asked him to reiterate why defendant looked familiar and if he had seen him anywhere else or involved in something else. At this point, Jason W. said defendant was the shooter. Bai testified Jason W.'s identification of defendant as the shooter was unsolicited and unexpected.
After hearing Detective Bai's testimony and argument from counsel, the trial court denied defendant's motion to exclude Jason W.'s identification, finding the evidence did not show that Bai suggested defendant was the shooter.
ii. Analysis
"In determining whether a defendant's right to due process is violated by the admission of identification evidence, 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. Clark (2016) 63 Cal.4th 522, 556 (Clark).) "Defendant bears the burden of showing unfairness as a demonstrable reality, not just speculation." (People v. DeSantis (1992) 2 Cal.4th 1198, 1222 (DeSantis).) With regard to the first prong, "[g]enerally, a pretrial procedure will only be deemed unfair if it suggests in advance of a witness's identification the identity of the person suspected by the police. [Citation.] However, there is no requirement that a defendant in a lineup, either in person or by photo, be surrounded by others nearly identical in appearance. [Citation.] Nor is the validity of a photographic lineup considered unconstitutional simply where one suspect's photograph is much more distinguishable from the others in the lineup." (People v. Brandon (1995) 32 Cal.App.4th 1033, 1052 (Brandon).) "A claim that an identification procedure was unduly suggestive raises a mixed question of law and fact to which we apply a standard of independent review, although we review the determination of historical facts regarding the procedure under a deferential standard." (Clark, supra, 63 Cal.4th at pp. 556-557.)
Here, Detective Bai showed Jason W. four photographs, which included one of defendant. She asked open-ended questions about whether any of the individuals looked familiar, if any of them were at the skating rink the night of the crimes, and—after Jason W. identified defendant as one of the fighters—if he had seen defendant anywhere other than the fight that night. Bai never prompted him to identify the shooter and was surprised when he did so. Considering these facts, we cannot see how Bai's presentation of the photographs to Jason W. suggested defendant's suspected involvement in the shooting or his potential role in events leading up to the murder.
That defendant was the only person with dreadlocks in the four photographs shown to Jason W. did not render the photo lineup "unduly suggestive." (People v. Yeoman (2003) 31 Cal.4th 93, 124.) The men in the photographs generally resemble each other: all were African-American males appearing to be around the same age, with similar complexions, builds, and amounts of facial hair. Although defendant had what appeared to be shoulder length dreadlocks while the others had short hair, Bai did not need to surround defendant's photo with others nearly identical in appearance. (See Brandon, supra, 32 Cal.App.4th at p. 1052; People v. Johnson (1992) 3 Cal.4th 1183, 1215-1218 [identification procedure not unduly suggestive where the defendant was the only person in jail clothing]; DeSantis, supra, 2 Cal.4th at p. 1222 [identification procedure not unduly suggestive where the defendant was the only man in a red shirt and witness recalled perpetrator wore red jacket].)
Defendant's reliance on People v. Johnson (2010) 183 Cal.App.4th 253 is misplaced. Johnson does not hold or otherwise suggest that any identification procedure where the defendant has dissimilar hair from others necessitates the conclusion the identification procedure is unduly suggestive. Defendant also relies on Foster v. California (1969) 394 U.S. 440, but that case is clearly distinguishable. (Foster, at pp. 441-444.)
Finally, defendant's argument and authorities about "one-man show ups" and single photograph identifications are inapposite. As indicated, defendant's photo was one of four that Bai showed to Jason W.
Because defendant has not established that the identification procedure used was impermissibly suggestive, we need not determine whether the identifications were reliable under the totality of the circumstances. (DeSantis, supra, 2 Cal.4th at p. 1222.) Nevertheless, even if we were to assume the trial court erred in denying suppression, the identification evidence against defendant in this case was ample and compelling. K.B. and Kim L. identified defendant in court as the shooter. K.B. testified that she looked at defendant at the scene for several seconds, "tunneled in on his face," and would never forget his face. K.B. and David Jr. identified defendant as the shooter in photo lineups; Nathaniel H. identified defendant in a photo lineup as one of the fighters; and Kim L. testified the shooter was involved in the fistfight. Further, K.B., Ky.B., Jeffrey W., and Kim L. all indicated the shooter was an African-American man with dreadlocks.
Additionally, Jason W.'s testimony made clear he changed his description of the shooter based on the surveillance video. During closing arguments, the prosecutor and the defense both questioned Jason W.'s identification of defendant. The prosecutor himself said during his closing argument, "I don't give any credit to either one of his [Jason W.'s] descriptions."
On this record, any perceived error in the admission of Jason W.'s identification was harmless beyond a reasonable doubt. (People v. Sandoval (1977) 70 Cal.App.3d 73, 86.)
B. Prosecutorial Misconduct
Defendant next argues the prosecutor committed misconduct during closing argument when explaining premeditation and deliberation to the jury.
i. Additional Facts
The jury was instructed with CALCRIM No. 521, in part, as follows: "The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. . . . The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before completing the acts that caused death. [¶] The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. . . . A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time." The jury was further instructed on the doctrine of transferred intent and the principle that nothing the attorneys say is evidence.
During closing argument, the prosecutor explained to the jury that premeditation and deliberation are necessary to elevate murder from the second degree to the first. Prefacing his discussion of premeditation and deliberation, the prosecutor explained that each of the jurors premeditated and deliberated at least once while driving to or from the courthouse. Echoing the instructional language, the prosecutor explained the elements of deliberation and premeditation and asserted that the test for those elements is not about the length of time one considers whether to kill. Rather, he emphasized, the test concerned the extent of a defendant's reflection, and premeditation and deliberation could be achieved quickly.
The prosecutor then discussed a common driving experience involving a quick decision. After noting various things a driver must consider when deciding whether he or she can safely drive through a yellow light (e.g., the surroundings cars, how close they are, whether they would stop or potentially hit the driver's car), the prosecutor said: "Yellow light lasts two seconds, ladies and gentlemen. In two seconds, you weigh all the thoughts that you have about that intersection and make a decision as to whether you are going to safely stop or safely proceed through." The prosecutor reiterated premeditation and deliberation do not reflect a measure of time, but rather a measure of the extent of one's reflection. Subsequently, the prosecutor urged that the jury find defendant premediated and deliberated based on the evidence showing he decided to get "that 30 stick firearm out of the vehicle the moment that he had got in the fight with David [Jr.]" and, at the moment that David Jr. threw up his arms in the parking lot, defendant already had the gun on his person and pulled the trigger or held it down for thirteen rounds.
ii. Analysis
Defendant contends the prosecutor misstated the meaning of premeditation and deliberation. That is, he inappropriately used "the yellow light decision process as the definition of premeditation and deliberation" and argued that "premeditation and deliberation was the exact equivalent of deciding whether to go through a yellow light." He also claims the prosecutor improperly trivialized the process of premeditation and deliberation, and collapsed any meaningful distinction between first and second degree murder. We reject this.
As an initial matter, defendant admits he did not object to the portions of the argument that he presently takes issue with, and he fails to offer any applicable exception to the general requirement of an objection. The claims are therefore forfeited. (People v. Avila (2009) 46 Cal.4th 680, 710-711 (Avila).)
Seeking to surmount this barrier, defendant contends his trial attorney's failure to object constituted ineffective assistance of counsel. To prevail on such a claim, a defendant must show, in part, that "counsel's representation fell below an objective standard of reasonableness." (Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland).) The decision whether to object to an argument is a tactical one that is not ordinarily reviewable on appeal. (People v. Frierson (1991) 53 Cal.3d 730, 749.) Generally, "where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions." (People v. Weaver (2001) 26 Cal.4th 876, 926.)
Defendant's ineffective assistance claim fails because the record does not disclose trial counsel's reasons for his failure to object, and a conceivable reason for that omission is apparent. Namely, counsel could have made a tactical decision to refrain from objecting to avoid drawing the jury's attention to the specific argument (see People v. Harris (2008) 43 Cal.4th 1269, 1290), and to instead focus, as counsel did, on the defense of misidentification.
The claim fails for the additional reason that the prosecutorial misconduct claim is meritless. " ' "A prosecutor's misconduct violates the Fourteenth Amendment to the United States Constitution when it 'infects the trial with such unfairness as to make the conviction a denial of due process.' [Citations.] In other words, the misconduct must be 'of sufficient significance to result in the denial of the defendant's right to a fair trial.' " (People v. Covarrubias (2016) 1 Cal.5th 838, 894 (Covarrubias).) While it is improper for a prosecutor to misstate the law (People v. Hill (1998) 17 Cal.4th 800, 829), " 'a prosecutor is given wide latitude during argument' " and " 'may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience.' " (People v. Wharton (1991) 53 Cal.3d 522, 567.) Assertedly improper remarks must be considered in the context of the argument as a whole, and courts " ' "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.' " (Covarrubias, at p. 894.)
Contrary to defendant's claim, the prosecutor in this case did not use the yellow light decision process as the definition of premeditation and deliberation. He defined premeditation and deliberation in accord with the standard jury instruction. (CALCRIM No. 521.) Taken as a whole, the prosecutor's argument merely gave the jury an example of a common decision-making process to illustrate that premeditation and deliberation can occur quickly and that those elements test the extent of one's reflection, not time. The prosecutor never equated a premeditated and deliberate decision to kill with a two-second decision whether to drive through a yellow light, and he never argued that defendant premediated and deliberated in as short a time as two seconds. Rather, the prosecutor's argument on premeditation and deliberation focused on the evidence that defendant retrieved a gun from his vehicle after he fought with David Jr., that defendant had the gun in hand when David Jr. threw up his arms in the parking lot, and that defendant then pulled the trigger (or held it down) for thirteen rounds.
We are equally unpersuaded that the prosecutor either trivialized the process of premeditation and deliberation or collapsed the difference between second and first degree murder, particularly since he echoed the instructions regarding these concepts. (See People v. Seumanu (2015) 61 Cal.4th 1293, 1336 ["absent some indication to the contrary, we assume a jury will abide by a trial court's admonitions and instructions"].) Here, we find it instructive that the California Supreme Court found no impropriety with a similar argument made in Avila, supra, 46 Cal.4th 680. (Avila, at p. 715.) Defendant argues Avila is distinguishable because the prosecutor there stated the consequences of deciding to kill are different from deciding whether to run a yellow light. The Avila court, however, noted the prosecutor stated this as an additional reason for rejecting the claim that the prosecutor equated the decision to murder with whether to stop at a yellow light. In this case, the prosecutor did not equate deciding to kill with deciding to run a yellow light, and those two decisions obviously entail different considerations and consequences.
Finally, we reject defendant's conclusory allegation that the yellow light argument somehow lowered the prosecution's burden of proof. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.) We note the jury was repeatedly instructed on the burden of proof.
In sum, defendant waived his claim of prosecutorial misconduct, which in any event was meritless and thereby insufficient to support his related claim of ineffective assistance of counsel.
C. Right to Testify
Defendant also contends his trial attorney, Mr. Castillo, rendered ineffective assistance in failing to re-advise him during trial of his absolute right to testify and in neglecting to put him on the stand.
i. Additional Facts
After the jury rendered its verdict, Castillo withdrew, whereupon defendant—aided by new counsel—filed a motion for new trial. Defendant argued, in part, that Castillo rendered ineffective assistance by not advising him of his right to testify or advising him to tell the court he wanted to testify. Both Castillo and defendant testified at the hearing on the motion, as summarized below.
Castillo testified he and defendant discussed prior to trial that the defense theory would be misidentification. Castillo advised defendant of his right to testify and encouraged him to do so, but defendant declined primarily because he did not want to answer questions about who he was with the night of the crimes. In the midst of trial, near the close of the People's case, defendant told Castillo he wanted to testify and admit he committed the shooting but without intending to kill Abangan. Castillo reminded defendant the defense theory up to that point had been misidentification, advised him it would be a "big mistake" to shift the defense strategy in this manner mid-trial, and also informed defendant of the doctrine of transferred intent. Defendant went along with Castillo's advice, and that was the end of that. Other than giving defendant his opinion, Castillo said he did nothing to dissuade defendant from testifying. Castillo did not recall telling defendant during their mid-trial conversation that he had a right to testify against counsel's advice, but testified he did so prior to trial.
Defendant testified Castillo never discussed with him his right to testify or what he should do if he wanted to testify; they only discussed whether he wanted to testify. Defendant said prior to trial he was open to testifying. During trial, he told Castillo three times he wanted to testify. The first time was during jury selection, when one prospective juror said she would think a defendant was guilty if he did not testify. The second time was after David Jr.'s interview video was shown, because defendant felt the evidence incorrectly made him look like the aggressor. The third time was at the end of trial when the judge asked Castillo what his next steps would be and whether defendant was going to testify. Defendant stated he asked Castillo to talk to him outside of court about testifying, but Castillo responded he could not. Defendant said he would have told the judge he wanted to testify had he been so advised. As it stood, defendant said he thought he would be penalized or held in contempt if he spoke up in court about wanting to testify.
Defendant then admitted he was the shooter and explained he shot the gun because he was scared for his life. He claimed the people who were with David Jr. earlier that night had threatened to kill him and pulled a gun on him. Defendant testified he retrieved a gun from the gold Solara. Believing the people who threatened him were in the parking lot, defendant "blanked" and shot in David Jr.'s direction. He testified that he did not intend to kill David Jr. and that he accidentally killed Abangan. He stated he was not worried about looking bad in front of the jury if he switched his defense mid-trial.
The trial court denied the new trial motion. As relevant here, the court fully credited Castillo's testimony that he advised defendant prior to trial of his absolute right to testify and recommended defendant testify; that defendant was reluctant to testify because he did not want to name his brother and others who were with him the night of the shooting; that during trial, defendant expressed to Castillo a desire to testify and Castillo advised him not to; that defendant agreed to follow Castillo's advice and elected not to testify; and that there was no reason for Castillo to advise defendant to tell the court if he wanted to testify since defendant agreed to follow Castillo's advice. The court offered its view that the defenses of self-defense and imperfect self-defense were not viable because the video evidence made clear the shooter did not act in self-defense or imperfect self-defense. Further, the misidentification defense was most likely to be successful, and it would have been disastrous to change the defense mid-trial as proposed.
ii. Analysis
"While the defendant has the right to testify over his attorney's objection, such right is subject to one significant condition: The defendant must timely and adequately assert his right to testify. . . . When the record fails to show such a demand, a defendant may not await the outcome of the trial and then seek reversal based on his claim that despite expressing to his counsel his desire to testify, he was deprived of that opportunity." (People v. Hayes (1991) 229 Cal.App.3d 1226, 1231-1232.) Without a timely assertion of the desire to testify, a defendant is bound by counsel's decision and "must seek relief, if any is due, by showing ineffective assistance of counsel." (Id. at p. 1232.) Where a new trial motion based on an ineffective assistance claim has been denied, "we apply the standard of review applicable to mixed questions of law and fact, upholding the trial court's factual findings to the extent they are supported by substantial evidence, but reviewing de novo the ultimate question of whether the facts demonstrate a violation of the right to effective counsel." (People v. Cervantes (2017) 9 Cal.App.5th 569, 590-591, citing People v. Taylor (1984) 162 Cal.App.3d 720, 724-725.)
In this case, defendant raises two claims of ineffective assistance. His first is based on Castillo's failure to re-advise him of his absolute right to testify, after he told Castillo during trial he wanted to testify. Defendant does not dispute that Castillo advised him prior to trial of his absolute right to testify, nor does he challenge the trial court's finding he was advised of that right prior to trial. Instead, he argues Castillo's pre-trial advisement was insufficient because it occurred days before defendant expressed a desire to testify, and their conversation on the topic was only about whether defendant wished to testify in support of the misidentification defense, not about whether he wished to testify regarding a self-defense theory.
We conclude defendant fails to demonstrate a case of deficient performance. Defendant cites no authority recognizing an obligation on counsel's part to re-advise on the right to testify. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) Defendant's reliance on United States v. Teague (11th Cir. 1992) 953 F.2d 1525 is misplaced, as that decision says nothing about an obligation to re-advise defendants who have already been advised.
Defendant's second argument is that Castillo violated his duty to present a meritorious defense. For this claim, defendant does not argue Castillo was ineffective for proceeding to trial with a misidentification defense. (Strickland, supra, 466 U.S. at p. 689 [an attorney's performance is assessed "from counsel's perspective at the time"].) Rather, he appears to contend that Castillo should have called defendant to testify and presented the defense of self-defense or imperfect self-defense mid-trial after defendant privately admitted that he was the shooter. Defendant claims he would have testified he fired the gun because one of David Jr.'s friends pulled out a gun and threatened to shoot him, which would have established he acted in self-defense or imperfect self-defense.
The choice of what defense to present is generally a tactical decision, controlled by counsel. "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. . . . '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.' " (People v. Welch (1999) 20 Cal.4th 701, 728-729; see, e.g., People v. Mitcham (1992) 1 Cal.4th 1027, 1059.)
Here, we cannot conclude Castillo performed deficiently by not shifting the defense theory mid-trial in the manner suggested. Castillo cultivated the misidentification defense throughout the trial proceedings, starting with voir dire and continuing throughout his examination of the witnesses. It appears this was a reasonable defense theory to continue with, as even the trial court indicated the video evidence appeared to undermine any claim of self-defense or imperfect self-defense. While defendant argues the videos did not disprove a self-defense claim, he makes no attempt to explain how they could have assisted him, or to address what evidence—other than his word—would have supported his new claim. Considering this, it appears defendant's credibility would have been crucial for the viability of a self-defense theory, and Castillo could reasonably have concluded that the proposed mid-trial change would damage defendant's credibility and that it would be a mistake to present it.
On these facts, defendant cannot establish the deficient performance prong, and the appellate claim of ineffective assistance fails.
D. Cumulative Error
Defendant contends that the cumulative prejudicial effect of the foregoing errors warrants reversal of his convictions. We disagree and conclude that no identified or assumed error, individually or cumulatively, requires reversal of the judgment. (See People v. Bolden (2002) 29 Cal.4th 515, 567-568.)
E. Remand for Resentencing
In a supplemental opening brief, defendant asks us to remand the case to the trial court in light of Senate Bill No. 620, in order to permit the court to exercise its discretion whether to strike the firearm enhancements pursuant to amended sections 12022.5, subdivision (c), and 12022.53, subdivision (h). (See People v. Zamora (2019) 35 Cal.App.5th 200, 206-207.) The People concede that defendant is entitled to the requested remand. We agree that remand is appropriate because the record contains no clear indication of how the court might have acted had it been presented the opportunity to strike the firearm enhancements imposed in this case. (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.)
F. Sentencing Error on the Attempted Murder Count
Finally, we asked for additional briefing addressing the propriety of defendant's determinate sentence in light of Sanders, supra, 189 Cal.App.4th 543, and section 1170.1, subdivision (a). As relevant here, the trial court designated the sentence for count 3 (assault with a semiautomatic firearm) as the "principal term" for purposes of section 1170.1, subdivision (a), and sentenced defendant to six years for the count, plus four years for the section 12022.5, subdivision (a) enhancement and three years for the section 12022.7, subdivision (a) enhancement. The court then sentenced defendant to a full consecutive seven-year term for count 2 (attempted murder), plus 25 years to life for the section 12022.53, subdivision (d) enhancement.
Attempted murder has a determinate sentence triad of five, seven, or nine years per section 664, subdivision (a). The term is a determinate one, regardless of whether the firearm enhancement attached to it carries an indeterminate term and, as such, it is subject to the one-third rule for subordinate consecutive sentences in section 1170.1, subdivision (a). (Sanders, supra, 189 Cal.App.4th at p. 559.) We accept the People's concession that the trial court incorrectly sentenced defendant to a full consecutive seven-year term for count 2, after selecting the sentence for count 3 as the principal term. We will order the court to correct this on remand, modifying the term to one-third of seven years, which is two years and four months.
We reject defendant's argument in his supplemental brief that the trial court should have designated the sentence for count 2 as the principal term and applied the one-third rule for subordinate determinate terms to count 3 and its enhancements. While the principal determinate term is "the greatest term . . . imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements" (§ 1170.1, subd. (a)), and while "specific enhancement" includes a section 12022.53 enhancement (§ 1170.11), the 25 year to life term prescribed by section 12022.53, subdivision (d), is an indeterminate one. (People v. Felix (2000) 22 Cal.4th 651, 659 (Felix).) Defendant cites no authority for his contention that an enhancement carrying an indeterminate term must be taken into account when assessing which of several determinate terms should be designated the principal term. The Supreme Court has repeatedly stated that section 1170.1 applies only to determinate sentences, which militates against defendant's position. (See People v. Williams (2004) 34 Cal.4th 397, 402; Felix, supra, 22 Cal.4th at p. 659; see also People v. Reyes (1989) 212 Cal.App.3d 852, 856 [determinate and indeterminate terms are to be considered and calculated independently of one another]; § 1170, subd. (a)(3) ["Nothing in this article shall affect any provision of law that . . . expressly provides for imprisonment in the state prison for life"].) In the absence of supporting authority, we reject defendant's argument.
DISPOSITION
The case is remanded to the trial court to consider whether to strike the firearm enhancements imposed under sections 12022.5 and 12022.53. The court is also directed to correct the sentence on the attempted murder count, consistent with this opinion, to one-third of seven years, which is two years and four months. The clerk of the superior court is ordered to forward a certified copy of any amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
/s/_________
Fujisaki, J. WE CONCUR: /s/_________
Siggins, P. J. /s/_________
Petrou, J.