Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD217810, David J. Danielsen, Judge.
BENKE, Acting P. J.
By amended information filed on July 31, 2009, the district attorney for San Diego County charged Derelle Anthony Oliver (Oliver) with conspiracy to commit assault with a firearm (count 1; Pen. Code, § 182, subd. (a)(1)), two counts of assault with a firearm (counts 2 & 3; § 245, subd. (a)(2), and with making a criminal threat (count 4; § 422). All of the offenses were alleged to have been committed with the personal use of a firearm in violation of section 12022.5, subdivision (a). It was also alleged each offense was committed for the benefit of a street gang in violation of section 186.22, subdivision (b)(1). A prior conviction for robbery was charged within the meaning of sections 667 and 1170.12.
All further statutory references are to the Penal Code unless otherwise specified.
Oliver entered a guilty plea to assault by means of force likely to cause great bodily injury, in violation of section 245, subdivision (a)(1), stipulated to be a lesser included offense of count 2. He admitted the gang enhancement and the robbery strike prior, and agreed to a 10-year maximum sentence. All remaining charges were dismissed. The plea included a "Harvey" waiver (People v. Harvey (1979) 25 Cal.3d 754), which allowed the sentencing court to consider Oliver's prior criminal history, and the entire factual background of the offenses, including any unfiled, dismissed or stricken charges or allegations. It was contemplated that Oliver's attorney could argue for striking the prior.
On January 14, 2010, Oliver was sentenced to nine years in prison: three years for the midterm of assault by means likely to produce great bodily injury, doubled to six years due to the prior strike; and the midterm of three years for the gang enhancement allegation.
Oliver filed a timely notice of appeal.
BACKGROUND
On December 5, 2008, Oliver was a member of the East Side Piru and Skyline street gangs. On that date he attended a party in rival gang territory. Members of the rival gangs, including Lincoln Park and 5/9 Brim, also attended the party. Two young girls, Monique Palmer and B.W., left the party in the early morning hours of December 6. As they walked away, Oliver and his friends drove past them. Oliver pointed a BB gun at them and yelled gang slurs. The girls believed it was a real hand gun. It had a red rag tied around it. Oliver told the girls, "We shoot bitches too." As the girls continued to walk, Oliver and his friends drove past them a second time. Before driving away from the frightened girls, Oliver repeated his threats and his friend James Tyler pointed a gun at the girls.
Minutes after Oliver and his friends drove away, a black Cadillac drove up to the girls, who by this time had been joined by Michael Taylor. Two men, not connected to Oliver, got out of the Cadillac and approached the group. One of the men had a handgun with a red rag tied around it. Taylor identified himself as a member of the 5/9 Brim gang. The man with the handgun then shot and killed Taylor. As the girls ran, the second man who came from the Cadillac fired at them, killing Palmer.
In the days immediately following the murders of Taylor and Palmer, Oliver posted messages on his MySpace page stating his allegiance to the Piru gang, claiming membership in that gang, and bragging about the shootings by fellow gang members.
ANALYSIS
Oliver's principal contention is that at the time of sentencing, the trial court's consideration of his motion to strike the prior was tainted by the statements of the murder victims' parents, Denise Saunders (Taylor's mother) and Tracy Swafford (Palmer's mother) (together, the parents).
Initially, we note the Attorney General argues that this issue is forfeited because Oliver did not object to the statements during the sentencing hearing. As the People note, where, as here, it is within the trial court's discretion to allow witnesses to testify at a sentencing hearing, the failure to object forfeits the issue on appeal. (People v. Scott (1994) 9 Cal.4th 331, 353; People v. Smith (2001) 24 Cal.4th 849, 852.) In any event, we conclude that even if not forfeited, Oliver's claim is without merit.
Oliver pleaded guilty to "naked" assault on Williams, as a lesser included offense of the assaults charged in count 2. In reciting the factual basis for the plea, he admitted pointing a BB gun at Williams and threatening her. He admitted the offense was gang related in association with the Skyline street gang and was committed by him with the intent to promote the interests of that gang. In addition, Oliver entered a Harvey waiver, which allowed the court to consider all of the facts and circumstances surrounding the crimes, including the murders of Palmer and Taylor. Part of those circumstances included Oliver's assertions on his MySpace page that he was a part of the deaths and bragging about his gang's role in their murders. Thus, the parents who spoke at his sentencing were not strangers to his crimes. His conduct directly affected their children and impacted their lives. While not technically victims for purposes of section 1191.1, the trial court, in its broad discretion, could permit them to speak. (People v. Brown (2003) 31 Cal.4th 518, 573, fn. 24; People v. Williams (2006) 40 Cal.4th 287, 306, fn. 4; People v. Zikorus (1983) 150 Cal.App.3d 324, 332.)
The parents' statements were very brief. They took place at the outset of the hearing. Together they comprise two pages of a 48-page sentencing hearing. The statement of Swafford was directed at the toll taken on their community by gang activity and her attempts to cope with the death of her daughter. Except in the last sentence, it did not specifically address Oliver. The one-paragraph statement of Saunders was directed at Oliver's gang activities, in particular his comments on MySpace bragging about the death of her son, and Oliver and his gang's involvement in the deaths. We do not find the admission of these statements beyond the judge's discretion. They are not inflammatory and there is no evidence they improperly swayed the trial judge in his sentencing.
Likewise, while there was an understandable focus on Oliver's gang activities, we do not find any of the prosecutor's sentencing argument an improper accusation that Oliver murdered the victims. The prosecutor's argument that the prior should not be stricken rested upon Oliver's actions before and after the murders, in particular his Internet statements reflecting a deliberate foray into rival gang territory with the intent to frighten others, and increase potential gang violence. In arguing against striking the prior, the prosecutor also noted he had not been amenable to probation in the past and his crimes were becoming more serious. Although Oliver alleges the prosecutor and victims' parents "implied throughout the sentencing hearing that appellant murdered the children in question, " he does not point to any specific statement reflecting this assertion.
Finally, we focus on the reasons the trial judge refused to strike the prior. First, we note the sentence is within the maximum term agreed upon in the plea bargain. Second, the sentence was clearly not based on the belief Oliver murdered the two victims. We note the trial judge expressly stated, "I think it's important not to lose sight of what this case is about and what it's not about. This case is not about the personal responsibility of this defendant for the murders of two wholly innocent individuals. [¶] That reprehensible set of acts is something for which at least two judges have already decided that there isn't even probable cause to believe that he's responsible, and I respect those decisions." The trial judge then carefully weighed Oliver's criminal history. He was particularly concerned with the nature of the prior Oliver sought to strike. As the court noted, the prior was for robbery, described as involving the use or threat of use of weapons. The prior conviction was March 10, 2008, just less than two years before the current offense. The trial court stated, "given the totality of circumstances, given the nature of the strike offense and the current offense, this is not a case that one would likely strike a strike." The record reflects the trial judge did not refuse to strike the prior because he believed Oliver murdered the two victims in this case.
The trial judge did not abuse his discretion in allowing the parents to speak at Oliver's sentencing. Their statements were short and limited to the facts surrounding Oliver's personal culpability. Nor is there evidence on this record that the prosecutor urged the court to deny Oliver's motion to strike the prior based on his involvement in the two murders. Finally, when one examines the actual reasons the trial court denied the motion to strike, it is apparent the court refrained from confusing this case with the murders, and relied instead on Oliver's past criminal history and the increasingly serious nature of his criminal activity.
II
Oliver states any objection to the statements of the parents would not have been effective and counsel should be excused from the need to object to discretionary victim-witness testimony. There is no indication the trial judge would not have accepted and heard an objection.
Oliver states that counsel's lack of objection can be reviewed as ineffectiveness of counsel. California Rules of Court, rule 8.204(a)(1)(B) requires each legal point raised by an appellant be addressed under a separate heading or subheading summarizing the point and each point must be supported by argument, and if possible, by citation to authority. We are uncertain whether Oliver is actually raising an issue of ineffectiveness of counsel or if he is merely making a legal observation that such an assertion is available. If it is meant as a legal argument, it is barely adequate to alert the court it must address the matter and further alert the People that a response is needed. In any event, assuming Oliver's assertion is a legal argument based on the facts of this case, we conclude that there has been no showing counsel was ineffective. As part I, ante, reflects, there was no error in allowing the parents of the victims to speak at the sentencing hearing and in any event, their statements did not result in the trial court denying the motion to strike the prior.
Likewise, we note that in his reply brief, Oliver inappropriately discusses a prosecution case not before us and not a part of this record. Apparently the case involves someone arrested as the shooter in the murders of Palmer and Taylor. Any request we judicially notice that case here or consider it in our opinion is denied.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McINTYRE, J., AARON, J.