Opinion
F059360 Super. Ct. No. CRM000336
09-01-2011
THE PEOPLE, Plaintiff and Respondent, v. BRIAN MATTHEW SAUDE, Defendant and Appellant.
Marilyn G. Burkhardt, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Leanne LeMon, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Merced County. Carol Ash, Judge.
Marilyn G. Burkhardt, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Leanne LeMon, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Brian Matthew Saude guilty of attempted murder and two other felonies and found criminal street gang and personal firearm discharge allegations true. On appeal, he argues ineffective assistance of counsel and challenges the admission in evidence of his prior juvenile adjudications. We affirm.
FACTUAL BACKGROUND
On April 26, 2009, Anthony Sanchez drove to his infant son's mother's home in Delhi. Sanchez's brother, waiting outside in the car while Sanchez went to the door to pick up his son, saw Saude peeking over a fence from his house across the street. Saude "looked like he was focused" on Sanchez, who put his son into his car seat and started to drive away. Sanchez stopped when Saude ran toward the car as if to tell him something. Saude pointed a gun at Sanchez's face. Sanchez "hit reverse and floored the gas." Saude fired a shot that put a bullet hole through the driver's side of the windshield.
PROCEDURAL BACKGROUND
On September 15, 2009, an information charged Saude with attempted willful, deliberate, and premeditated murder (count 1; Pen. Code, §§ 187, subd. (a), 664, subd. (a)), shooting at an occupied motor vehicle (count 2; § 246), and active participation in a criminal street gang (count 3; § 186.22, subd. (a)). The information alleged in count 1 that he committed a crime punishable by life in prison for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(5)), in count 2 that he committed the crime for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(4)), and in counts 1 and 2 that he personally and intentionally discharged a firearm (§ 12022.53, subd. (c)).
Later statutory references are to the Penal Code unless otherwise noted.
On December 11, 2009, a jury found Saude guilty as charged and found all of the allegations true. On January 13, 2010, the court imposed a term of 15 years to life on the attempted murder consecutive to a term of 20 years to life on the firearm enhancement in count 1, imposed and stayed a term of 15 years to life on the shooting at an occupied motor vehicle consecutive to a term of 20 years to life on the firearm enhancement in count 2, and imposed and stayed the aggravated term of three years on the active participation in a criminal street gang in count 3.
DISCUSSION
1. Assistance of Counsel
Saude argues that his attorney was ineffective by failing to object, not only to the gang expert's testimony about telling a fellow officer Saude might be a possible suspect, but also to a detective's testimony about Saude invoking his Miranda rights, and that the cumulative impact of the individual errors prejudiced him. The Attorney General argues the contrary.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
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To establish ineffective assistance of counsel, the defendant has the burden of showing that the attorney's performance not only "fell below an objective standard of reasonableness" but also prejudiced the defense. (Strickland v. Washington (1984) 466 U.S. 668, 684-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) The defendant also has the burden of showing that the attorney's act or omission was not attributable to a tactical decision that a reasonably competent and experienced criminal defense attorney would make. (People v. Gurule (2002) 28 Cal.4th 557, 610-611.) If the defendant makes an insufficient showing that the attorney's performance fell below the requisite standard or prejudiced the defense, the ineffective assistance of counsel claim fails. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.) If the record fails to show the reason for the acts or omissions challenged on appeal, our duty is to affirm unless there could be no satisfactory explanation. (People v. Anderson (2001) 25 Cal.4th 543, 569.) That is so here.
The gang expert testified that he told a fellow officer Saude might be a possible suspect due to the "area that it happened, the description of the suspect, and the victim." Asked if he was familiar with the victim, he answered, "Yes." Asked how, he testified, "Several years ago, I was told of an incident regarding the victim and Brian Saude."
The detective testified Saude acted "cocky" after his arrest, saying things like "might as well let me go right now" and "didn't do nothing." After learning he was a suspect in a shooting around the corner from the house, he "slumped down in his seat, seemed to become nervous," and started to "stutter" and "stammer." As the detective started reading him his Miranda rights, Saude interrupted him, saying, "I don't even know what you're talking about. I want to talk to a lawyer."
As to the gang expert's testimony, Saude analogizes his case to, inter alia, People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77 (Coffman and Marlow)("A witness may not express an opinion on a defendant's guilt ... not because guilt is the ultimate issue of fact for the jury ... [but because] opinions on guilt or innocence ... are of no assistance to the trier of fact."), People v. Killebrew (2002) 103 Cal.App.4th 644, 651 (Killebrew)(A "'statement by the witness which amounts to no more than an expression of his general belief as to how the case should be decided ... would tend to suggest that the judge and jury may shift responsibility for decision to the witnesses; and in any event it is wholly without value to the trier of fact in reaching a decision.'"), and People v. Torres (1995) 33 Cal.App.4th 37, 47-48 (Torres)(The "rationale which prohibits the witness from expressing an opinion on the meaning of statutory terms or the guilt of the defendant also prohibits the witness from expressing an opinion as to whether a crime has been committed.")
Here, however, the gang expert did not express an opinion on Saude's guilt, on how the case should be decided, or on whether a crime had been committed. Nor did he express an opinion on whether Saude was the shooter or on whether Saude "had specific knowledge or possessed a specific intent." (Killebrew, supra, 103 Cal.App.4th at p. 658.) He simply testified, on the basis of the "area that it happened, the description of the suspect, and the victim," that as soon as he heard about the shooting he gave Saude's name to a fellow officer as someone who (in the prosecutor's words) "might be a possible suspect." (Italics added.) Saude's reliance on Coffman and Marlow, Killebrew, and Torres is misplaced.
Even if the gang expert's testimony was inadmissible, an attorney's decision whether to object to inadmissible evidence is a tactical decision that receives substantial deference on appeal, and the absence of an objection seldom establishes ineffective assistance of counsel. (People v. Williams (1997) 16 Cal.4th 153, 215.) Saude's attorney might well have decided to forego an objection so as not to draw the jury's attention to a passing reference to him as someone who might be a possible suspect. !(3 RT 844-846)!
As to the detective's testimony, Saude analogizes his case to, inter alia, Doyle v. Ohio (1976) 426 U.S. 610, 619 (Doyle)(Since "every post-arrest silence is insolubly ambiguous" and "assurance that silence will carry no penalty ... is implicit to any person who receives the warnings," "it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial."), Coffman and Marlow, supra, 34 Cal.4th at p. 118 ("No less unfair is using that silence against a defendant by means of the prosecutor's examination of an interrogating detective even before the defendant has had the opportunity to take the stand."), and People v. Guajardo (1994) 23 Cal.App.4th 1738, 1743 (Guajardo)("Any doubt [the arresting officer] might have had would have been resolved by [the defendant's] demonstrated consciousness of guilt (he kept looking around as he approached the patrol car, appearing nervous and anxious to leave the area).")
Here, however, Saude's attorney stipulated to the admission in evidence of his having changed his demeanor "from confident to nervous," his having "slumped slightly in his chair," and his having interrupted the detective during the reading of his Miranda rights to say "that he did not know anything about that and did not want to say anything." The stipulation enabled his attorney to argue to the jury that "when he is accused of the crime, yes, he changes reactions. I think anyone changes reactions," and to emphasize to the jury that "what's more telling is his reaction when they then begin to read him his Miranda rights. He breaks in, interrupts them, and says 'I don't know anything about that and I'm not going to answer any of your questions. I want a lawyer.' That's the response of an innocent person, okay. He didn't try to talk his way out of it. He didn't try to explain anything. He exercised his constitutional rights, and in so doing, said, 'I don't know anything about this.'" No stipulation to the admission in evidence of pre-Miranda and post-Miranda statements was at issue in Doyle, Coffman and Marlow, or Guajardo. Saude's reliance on those cases is misplaced.
Even if stipulating to be able to argue to the jury that his pre-Miranda and post-Miranda statements showed his innocence was not a reasonable tactical decision, Saude has the burden, to establish prejudice, of showing a "reasonable probability" "sufficient to undermine confidence in the outcome" that but for his attorney's performance "the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.)
From jail, Saude made several incriminating phone calls. In one, he said, "I'll probably get like about 20 years or some shit probably" and added that "it ain't even lookin' too good right now." In another, he said to "talk to him and see what he says." He added, "It's the only way I can get out." In another, he said to "get at the homies." In yet another, he said to "get at them for sure." In still another, he said to "tell him, know what I mean, be cool or whatever." He implied, in the gang expert's words, that Sanchez and his brother and other witnesses should "change their story or not cooperate with law enforcement."
At trial, Sanchez's brother positively identified Saude as the shooter. He testified that while waiting in the car as Sanchez picked up his son he saw Saude across the street, first in one place, then in another, looking at Sanchez. Saude and Sanchez's son's mother lived across the street from each other. The area was hotly disputed between Norteños and Sureños. Saude was an active member of a Norteños gang that did not get along well with the Sureños gang to which Sanchez used to belong. A few years earlier, Saude had called Sanchez a "scrap," a derogatory term Norteños use to degrade Sureños.
On a record of overwhelming evidence of his guilt, Saude fails to discharge his burden of showing that his attorney's performance fell below an objective standard of reasonableness and prejudiced the defense. Since he fails to persuade us that any error occurred, his cumulative error argument likewise is meritless. (People v. Heard (2003) 31 Cal.4th 946, 982.)
2. Prior Juvenile Adjudications
Saude argues that the court committed an abuse of discretion in violation of due process by admitting evidence of his prior juvenile adjudications as proof of the crime of active participation in a criminal street gang and of the allegations that he committed the other two crimes for the benefit of, at the direction of, or in association with a criminal street gang. The Attorney General argues the contrary.
On December 7, 2009, the prosecutor filed a request for judicial notice of juvenile records for proof of Saude's three prior juvenile adjudications. The records at issue, as to two of the three priors, were a petition filed on January 31, 2002, alleging violations of section 487, subdivision (c) (grand theft person) and of Health and Safety Code section 11359 (possession of marijuana for sale), and a minute order showing his admission of both allegations on March 14, 2002; and, as to the other prior, a petition filed on January 22, 2003, alleging a violation of section 245, subdivision (a)(1) (assault with a deadly weapon) on November 21, 2002, and a minute order showing his admission of the allegation on February 21, 2003. (Evid. Code, § 452, subd. (d).) Over Saude's objection, the court, on the ground that the "probative value far outweighs any prejudicial effect," granted the motion on December 8, 2009. (Evid. Code, § 352.)
Saude challenges the court's ruling on two grounds. First, "the evidence had no probative value and was cumulative because the prosecutor could have introduced evidence of numerous predicate offenses committed by others." Second, "the evidence was prejudicial because it informed the jury that [he] had committed three felonies, including assault with a deadly weapon or with force likely to produce great bodily injury, a crime of violence that closely resembled the charged offenses."
Saude's primary authority is People v. Leon (2008) 161 Cal.App.4th 149, which held, on a record of overwhelming evidence of the defendant's active membership in a criminal street gang, that the admission of a prior juvenile adjudication that was "'merely cumulative regarding an issue that was not reasonably subject to dispute'" was an abuse of discretion. (Id. at p. 169, quoting People v. Ewoldt (1994) 7 Cal.4th 380, 406.) The court emphasized that "the prosecutor had ample evidence apart from [the defendant's] juvenile offense to establish both that [the defendant's gang] was a criminal gang and that [the defendant] was a gang member." (Leon, supra, at p. 169.)
After briefing here was complete, our Supreme Court held in People v. Tran (2011) 51 Cal.4th 1040 that the prosecutor's "ability to develop evidence of predicate offenses committed by other gang members does not require exclusion of evidence of a defendant's own separate offense to show a pattern of criminal gang activity." (Id. at p. 1044.) Even so, "the trial court of course retains discretion to exclude details of offenses or related conduct that might tend to inflame without furthering the purpose for admitting the evidence." (Id. at p. 1049.)
The deferential abuse of discretion standard of review applies to Evidence Code section 352 rulings. (People v. Pollock (2004) 32 Cal.4th 1153, 1171.) "Prejudice for purposes of Evidence Code section 352 means evidence that tends to evoke an emotional bias against the defendant with very little effect on issues, not evidence that is probative of a defendant's guilt." (People v. Crew (2003) 31 Cal.4th 822, 842.) A ruling that is arbitrary, capricious, or patently absurd is an abuse of discretion. (People v. Ledesma (2006) 39 Cal.4th 641, 705.)
The record persuades us that, by the applicable standard of review, the court's admission of Saude's three prior juvenile adjudications was not an abuse of discretion. Proof of the crime charged in count 3 required the prosecutor to show Saude was a "person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang." (§ 186.22, subd. (a).) Proof of his active participation required the prosecutor to show that his "involvement with a criminal street gang" was "more than nominal or passive." (People v. Castenada (2000) 23 Cal.4th 743, 747.) Proof of a "pattern of criminal gang activity" required the prosecutor to show "the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more [predicate] offenses." (§ 186.22, subd. (e).)
Proof of the criminal street gang allegation in counts 1 and 2 required the prosecutor to show Saude had "the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).) Evidence of gang affiliation and activity is relevant to prove intent and motive as to the charged crimes. (People v. Funes (1994) 23 Cal.App.4th 1506, 1519.) None of his prior juvenile adjudications - grand theft person, possession of marijuana for sale, or assault with a deadly weapon - was as inflammatory as the charged attempted willful, deliberate, and premeditated murder. (Cf. People v. Hernandez (2004) 33 Cal.4th 1040, 1050-1051.) All three were adjudications, which "minimize[d] the risk the jury would be tempted to punish [him]" for bad acts for which he had not been punished already. (Cf. People v. Williams (2009) 170 Cal.App.4th 587, 610.)
Saude criticizes the court's admission of his adjudications of possession of marijuana for sale and assault with a deadly weapon as "merely cumulative to evidence that [he] was a member of the gang and the evidence that he personally participated in the criminal activities of the gang." He fails, however, to show that his adjudications either tended to evoke an emotional bias against him or had very little effect on issues or that the court's ruling admitting the evidence was arbitrary, capricious, or patently absurd. He claims that the admission of the evidence denied him due process, but since the premise of his constitutional claim is that the court's ruling was prejudicial error, his due process claim likewise fails. (People v. Sanders (1995) 11 Cal.4th 475, 510, fn. 3.) The essential question is "whether the admission of the evidence so fatally infected the proceedings as to render them fundamentally unfair." (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 919.) The record answers that question in the negative.
DISPOSITION
The judgment is affirmed.
Gomes, Acting P.J. WE CONCUR:
Kane, J.
Franson, J.