Opinion
B158017.
11-20-2003
THE PEOPLE, Plaintiff and Respondent, v. JOSE MERINO, Defendant and Appellant.
Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc E. Turchin and Lisa J. Brault, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Jose Merino of attempted murder and assault with a firearm against Alfredo Valadez and found he personally used and intentionally discharged a firearm in committing those offenses. In bifurcated proceedings, he admitted having suffered a prior serious felony conviction, making him eligible for sentencing under the "Three Strikes" law. He also admitted having served eight separate prison terms for prior felonies. The trial court sentenced him to a total term of 38 years in state prison. Appealing from the judgment, he contends defense counsel was constitutionally ineffective for failing to object to the admission of his former codefendants hearsay statements. We disagree. However, due to sentencing errors raised by respondent, we remand the matter for the limited purpose of resentencing. We express no opinion as to what that sentence should be.
Penal Code sections 664, 187, 245, subdivision (a)(2), 12022.53, subdivisions (b) and (c).
Penal Code sections 1170.12, subdivisions (a)-(d), 667, subdivisions (b)-(i), 667, subdivision (a), 667.5, subdivision (b).
Appellant filed a petition for writ of habeas corpus in this court, In re Jose Merino, case No. B162341 in conjunction with this appeal on the same ground of ineffective assistance of counsel. We consider the petition for writ of habeas corpus concurrently with this appeal and dispose of it by separate order.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
At 1:50 a.m. on June 16, 2001, codefendant Karen Barrera entered a liquor store and bought some beer. After she left, appellant came into the store. He appeared to have been drinking and was loud and abusive with customers and employees. He challenged Alfredo Valadez, the store security guard, and slapped his face before leaving the store. Minutes later appellant returned to the store holding a handgun and fired three shots at Valadez. The store owner, Michael Hill, and Valadez each fired his own gun at appellant, who fled. Hill followed appellant outside and saw him get into a car driven by Barrera. Hill and appellant exchanged gunshots and the car sped away.
Karen Barrera pleaded guilty to being appellants accessory in a related proceeding before appellants trial. She is not a party to this appeal.
Hill and Valadez identified appellant from a six-pack of photographs prepared by police.
Police officers traced the car to Barrera and arrested her on an unrelated warrant. After obtaining a Miranda waiver (Miranda v. Arizona (1966) 384 U.S. 436), Detective Liberman interviewed her. Barrera said she drove appellant to the liquor store and appellant went inside. He emerged and retrieved a gun from the car and returned to the store. Barrera heard gun shots. Appellant ran from the store holding the gun, jumped into the passenger seat, and urged Barrera to "Go. Go." Appellant exchanged gunshots with somebody at the store entrance as Barrera drove away.
Following his arrest, appellant waived his Miranda rights and initially stated to Detective Liberman "he was set up" by Barrera. When he was told witnesses inside the store had identified him, appellant said he did not remember what happened. He never mentioned self-defense. Nor did he indicate people in the store shot him first.
At trial, the parties stipulated appellant was the person involved in the shooting at the liquor store.
Defense Evidence
Appellants defense was self-defense. Barrera testified and recanted her earlier statements to Detective Liberman. She admitted appellant went into the store after she came out. However, Barrera denied he returned to the car and then went back into the store as she waited in the car. She claimed she heard shooting while appellant was inside the store, before seeing him run from the store followed by Hill with his gun drawn. She did not recall appellant firing any shots. She denied telling the detective appellant had ordered her to drive the car and threatened to kill her. Barrera admitted she had pleaded guilty as an accessory in this case.
Rebuttal Evidence
Detective Liberman called to impeach Barrera. He testified Barrera said during the interview appellant held a gun to her head and pulled the trigger as she drove him away. He also struck her several times with the barrel of the handgun. Barerra told the detective she feared for her life and thought appellant was going to kill her. She pulled over to the side of the road, emerged from the car, and said to appellant: "Go ahead and kill me." Appellant slid into the driver seat and drove away.
DISCUSSION
Appellant contends his defense counsel rendered ineffective assistance by failing to object to Detective Libermans direct testimony relating Barreras hearsay statements incriminating him. Appellant argues by the time Barrera recanted those statements in court, her testimony "fell on the deaf ears of the jurors because the avoidable damage had been done." According to appellant, Barreras statements to the detective were inadmissible during the prosecutions case-in-chief, suggesting they were only admissible as rebuttal evidence. We disagree.
Because codefendant Barrera testified in this case, her extrajudicial statements inculpating appellant did not raise an Aranda/Bruton issue. (People v. Aranda (1965) 63 Cal.2d 518, 530-531; Bruton v. United States (1968) 391 U.S. 123, 137.)
1. The Standard of Review
"`Every person accused of a criminal offense is entitled to constitutionally adequate legal assistance." To establish ineffective assistance of counsel, a defendant must show his counsels performance fell below a standard of reasonable competence, and prejudice resulted. A defendant has been prejudiced if there is a reasonable probability, but for counsels performance, the result would have been different; a reasonable probability is one sufficient to undermine confidence in the outcome. In reviewing a claim of ineffective assistance of counsel on appeal, we accord great deference to trial counsels tactical decisions. Were it otherwise, appellate courts would be required to engage in the "`"perilous process" of second-guessing counsels trial strategy." An attorneys decision whether to object to inadmissible evidence is considered part of trial tactics. Accordingly, to reverse a conviction on appeal on the ground of inadequate counsel; the appellate record must affirmatively disclose that counsel had no rational tactical purpose for the act or omission.
People v. Frye (1998) 18 Cal.4th 894, 979, quoting People v. Pope (1979) 23 Cal.3d 412; see also People v. Ledesma (1987) 43 Cal.3d 171, 215.
People v. Anderson (2001) 25 Cal.4th 543, 569; People v. Kelly (1992) 1 Cal.4th 495, 519-520; Ledesma, supra, 43 Cal.3d at pp. 217-218.
In re Fields (1990) 51 Cal.3d 1063, 1069-1070.
Frye, supra, 18 Cal.4th at p. 979.
See Frye, supra, 18 Cal.4th 894; People v. Bolin (1998) 18 Cal.4th 297; People v. Fairbank (1997) 16 Cal.4th 1223; People v. Williams (1997) 16 Cal.4th 153.
People v. Fosselman (1983) 33 Cal.3d 572, 581.
2. Effective Assistance of Counsel
Defense counsels failure to object to the complained of statements did not render his performance deficient. Contrary to appellants claim, a hearsay objection would not have barred the prosecutor from introducing those statements as part of his case-in-chief. If defense counsel had interposed an objection, the prosecutor could have called Barerra as a prosecution witness. If Barerra then recanted the statements she made to Detective Liberman, the prosecutor could have called the detective as a witness to impeach Barerras credibility. Barreras statements to the detective would have qualified as prior inconsistent statements, which are admissible for their truth. Thus, as defense counsel acknowledged during a side bar discussion, although Barreras statements were hearsay, they would "come out one way or the other" as part of the prosecutions case-in-chief. Defense counsel cannot be deemed constitutionally ineffective for failing to make an objection he reasonably determined would be futile.
Evidence Code section 780, subdivision (h).
Evidence Code section 1235; People v. Hawthorne (1992) 4 Cal.4th 43, 55, footnote 4; People v. Johnson (1992) 3 Cal.4th 1183, 1219.
See People v. Price (1991) 1 Cal.4th 324, 387.
Furthermore, defense counsel knew how Barrera would testify in court because she was a defense witness. His decision not to object to her hearsay statements was a reasonable tactical choice. Defense counsel undoubtedly preferred having Barrera testify favorably to the defense as a defense witness on direct examination. Finally, there was no prejudice to appellant. Had a defense objection been made, the only difference would have been the order in which the jury heard Barreras hearsay statements during the prosecutions case-in-chief — either alone or after Barreras in-court testimony as a prosecution witness. Thus, there was no ineffective assistance of counsel.
3. Sentencing Errors
Respondent correctly argues the trial court imposed an unauthorized sentence when it erroneously stayed rather than either imposing or striking the one-year enhancements. (We note appellant cannot be sentenced cumulatively to enhancements under both Penal Code sections 667, subdivision (a)(1) and 667.5. Thus, appellants prior robbery conviction (case No. A634796) cannot be used for a one-year enhancement because it was the basis for the five-year enhancement admitted by appellant.)
Respondent also points out a clerical error: The clerks transcript and the abstract of judgment incorrectly show there were six stayed one-year enhancements, when the sentencing hearing transcript shows the court concluded there were four stayed one-year enhancements.
People v. Jones (1993) 5 Cal.4th 1142, 1153.
A review of the record also reveals the court and counsel wrongly assumed the court could not make dual use of the prior robbery conviction to double the base term and to impose a five-year enhancement under Penal Code section 667, subdivision (a)(2). As a result, the court improperly stayed sentencing on the five-year enhancement. Imposition of the five-year term is mandatory. The statute does not preclude the use of the same prior conviction to double the base term and to enhance the sentence imposed.
People v. Green (1996) 50 Cal.App.4th 1076, 1086.
DISPOSITION
The judgment is affirmed, except appellants sentence is vacated, the matter is remanded, and the sentencing court is directed to resentence appellant in a manner consistent with this opinion. The sentencing court is also directed to forward to the Department of Corrections an amended abstract of judgment reflecting the resentencing.
We concur: PERLUSS, P. J., WOODS, J.