Opinion
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court of Los Angeles County No. KA081731. Tia Fisher, Judge.
Carey D. Gorden, under appointment by the Court of Appeal, for Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and G. Tracey Letteau, Deputy Attorneys General, for Respondent.
RUBIN, Acting P.J.
INTRODUCTION
A jury convicted appellant Rigoberto Arellano of robbery (Pen. Code, § 211), with allegations he personally and intentionally discharged a firearm proximately causing great bodily injury and death (§ 12022.53, subds. (b)-(d)), and that a principal was armed with a firearm (§ 12022, subd. (a)(1)). He was sentenced to a total term of 15 years in state prison. Appellant challenges the judment, contending (1) the trial court erred in failing to adequately respond to the jury’s question asking for clarification of the robbery instruction, and (2) his counsel was ineffective for failing to request a jury instruction on voluntary intoxication. These arguments are unpersuasive, and we affirm.
All code references are to the Penal Code, unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Case
At about 10:00 p.m. one evening, Kelly Franklin was walking on Mission Boulevard in Pomona when the persons -- appellant, Tommy Cota, and an unknown individual -- approached him. Appellant asked Franklin, “What you got in your pockets?” Franklin responded, “Whatever is in my pockets is mine, you know, you are not getting anything from me.” Appellant, who was about three feet from Franklin, pulled out a pistol, and, with his right arm outstretched, shot Franklin in his left calf.
Franklin took his wallet out of his pocket and gave it to appellant. Appellant then lifted the gun and pointed it at Franklin’s chest. Cota, who was standing behind Franklin, stabbed Franklin in the lower back and on his wrist. The three men left Franklin and ran away. As they ran, Franklin heard three to four additional shots being fired. Cota was later apprehended a few blocks away with Franklin’s wallet, which contained Franklin’s identification and social security number.
Appellant was detained that evening and questioned the next day. Detective Greg Freeman testified that at first, appellant denied any involvement in the shooting, seeing Franklin, or even having a gun. He later admitted having a revolver, which he said fell through his pants and accidently shot Franklin. Appellant admitted throwing the gun in an open field next to a car wash. Throughout the interview, appellant understood all questions and did not appear to be intoxicated.
Defense Case
Appellant testified at trial that on the day of the shooting he woke up at 7:00 a.m. and had smoked two marijuana cigarettes by 8:00 a.m. Cota brought some beer to appellant at about 1:00 or 2:00 p.m. While appellant consumed the 40 ounces of beer, he smoked two more marijuana cigarettes. At 3:00 p.m., Cota and appellant went to the store and purchased an 18-pack of beer. They went back to appellant’s house, where appellant drank 10 to 12 beers. Appellant and Cota then returned to the store and purchased another 18-pack of beer. Appellant consumed nine of those beers. The two then went to a friend’s house and appellant smoked a pipe of marijuana. At about 9:00 p.m., appellant smoked a “primo” of marijuana laced with cocaine. He smoked another “primo” immediately before Franklin was shot.
That evening, when appellant saw Franklin on the street, he told Cota he thought Franklin could get them some crack cocaine. Appellant explained that he craved more cocaine because its effect had worn out and he wanted more. While appellant was asking Franklin to purchase some cocaine, he pulled out his gun from his waistband, which he had earlier forgotten was still concealed under his sweater. Appellant began playing with the hammer, and “aiming it low,” when it went off. Appellant dropped the gun and said to Franklin, “My bad.” Appellant testified that he did not ask Franklin for his wallet, did not threaten or intentionally shoot him, and did not realize he was shot. The shooting was an accident. Appellant also said he did not know Cota had stabbed Franklin or taken his wallet.
Appellant initially denied his involvement in the shooting but eventually “came clean” with detectives. However, during the interview, he had a hangover and his memory was “clouded.”
Jury Deliberations
The jury was instructed with CALCRIM No. 1600, the standard instruction on robbery. During deliberations, the jury submitted the following note to the court: “Clarification of the law: Is the robbery all one event, or can it be broken down into parts, i.e.[,] the confrontation, shooting, knifing, the removal of the wallet?”
In response to the question, the court discussed the matter with counsel and proposed the answer that would be given. Neither defense counsel nor the prosecutor voiced any objections to the proposed response. Then, in front of the jury, the court asked the foreperson whether the question related to the robbery or both the robbery and the allegations. After the foreperson said the question pertained to the robbery only, the court stated:
“As to the portion of the question[,] ‘Is the robbery all one event or can it be broken down into parts,’ the answer to that question depends on what you find to be the facts. I will remind you of the first line in jury instruction 104 on page 2 of your instruction set: ‘You must decide what the facts are in this case.’ I cannot answer that question any further. Because the question itself includes language pertaining to factual issues when you use the words ‘confrontation, the shooting, the knifing, and the removal of the wallet.’ I, as the judge of the law, can’t provide you any response in terms of what you find to be the facts.
“The next portion of the question where you request a clarification on the law, that will be found -- I’ve got the original packet which I had my clerk go in and bring out for me so I had it in my hand. I know you each have sets of this. Page 9 at the top it says, robbery. I wrote it in myself because my computer actually spelled it wrong when I printed it out, only one B. 1600 on the left-hand column and 1603 down there below it. I’m referring you specifically to that page because those two instructions specifically speak to the law of robbery. And that is my response to your inquiry.”
After the jury resumed deliberations, the court asked defense counsel if she had any objection to the way the court handled the response to the jury’s question. Counsel said, “No, your Honor.”
DISCUSSION
The Trial Court Appropriately Responded to the Jury’s Question.
Appellant first argues the trial court erred by inadequately responding to the jury’s question. Specifically, appellant contends the court should have done more than “re-read” the robbery instruction. As the Attorney General correctly points out, the issue was forfeited. Also, the claim is without merit.
Section 1138 provides: “After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.”
“When a trial court decides to respond to a jury’s note, counsel’s silence waives any objection under section 1138. [Citation.] ‘The failure of defendant’s counsel to object or move for a mistrial upon the court frankly informing him of the court’s action might also be construed to be a tacit approval. Approval of the court’s action, even though it might have been a technical violation of section 1138 of the Penal Code, cures any possible error.’ [Citations.]” (People v. Roldan (2005) 35 Cal.4th 646, 729, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421; see also People v. Dykes (2009) 46 Cal.4th 731, 798-799; People v. Rogers (2006) 39 Cal.4th 826, 877; People v. Hughes (2002) 27 Cal.4th 287, 402.)
Here, defense counsel made no objection in response to the court’s proposal of how it would respond to the jury’s question. Indeed, after responding to the jury’s note, the court asked defense counsel if she had any objection to how the matter was handled. She said, “No.” This was an express approval of the court’s action. We therefore conclude the claim was waived.
In any event, we also reject the claim on its merits. The court has a duty to help the jury understand the legal principles it is asked to apply. (People v. Beardslee (1991) 53 Cal.3d 68, 97.) But this does not mean the court must always elaborate on the standard instructions. (Ibid.) “Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information. [Citation.] Indeed, comments diverging from the standard are often risky. [Citation.]... But a court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given.” (Ibid., original italics.)
The trial court did not figuratively throw up its hands in this case. The trial court took action. The court discussed the matter with counsel and correctly decided that the jury’s question presented factual issues, and that diverging from the standard instruction was risky. The court then questioned the jury concerning the scope of the question, referred the jury to CALCRIM No. 104 regarding its role in deciding the facts, advised the jury that the court could not answer factual questions, and directed them to the specific instruction on robbery, which provided a full and accurate statement of the law. We conclude the court acted well within its discretion and adequately complied with the mandate of section 1138.
Appellant Was Not Denied Effective Assistance of Counsel.
Appellant next contends his trial counsel was ineffective because there was substantial evidence he was “highly intoxicated entitling him to a jury instruction on voluntary intoxication” and counsel failed to request such an instruction. We disagree.
Section 22, subdivision (b), provides that intoxication is admissible only on the issue of whether the defendant actually formed a required specific intent, premeditated, deliberated or harbored express malice aforethought when murder or a specific intent crime is charged. A defendant is entitled to an intoxication instruction only when there is substantial evidence of the defendant’s voluntary intoxication and the intoxication affected the defendant’s actual formation of the specific intent. (People v. Horton (1995) 11 Cal.4th 1068, 1119; see People v. Roldan, supra, 35 Cal.4th at p. 716 [evidence showing the defendant habitually used marijuana and was “‘ecstatic’” and on “‘cloud nine’” a few hours after the crime did not constitute substantial evidence that he was actually intoxicated or under the influence at the time of the crime].)
Appellant testified that the day of the shooting he consumed a considerable amount of beer and smoked marijuana and cocaine. But there was little evidence appellant was intoxicated and no evidence that intoxication affected his actual formation of the specific intent to rob Franklin. The evidence was to the contrary. Appellant walked over to Franklin and, according to his own testimony, had the mental clarity to ask Franklin for cocaine because the effect from the cocaine he had already consumed that day had worn out and he wanted more. He also asked Franklin what he had in his pockets. When Franklin refused to turn over his wallet, appellant took out his gun from his waistband, pointed it at Franklin with his outstretched arm, and shot at Franklin’s leg. After lifting the gun and pointing it at Franklin’s chest, appellant had the wherewithal to run from the scene and throw his gun away so that it could not be found. When he was apprehended a short time later, he was sufficiently able to run from the police.
This evidence suggests that even if it were true that appellant had consumed alcohol and drugs, he probably was not intoxicated. (People v. Miller (1962) 57 Cal.2d 821, 830-831 [“The mere fact that a defendant may have been drinking prior to the commission of a crime does not establish intoxication...”].) But even if appellant was intoxicated, there was no evidence he was unaware of what he was doing because of intoxication. There was simply no substantial evidence that appellant did not form the necessary specific intent. Far more evidence has been found insufficient to warrant the giving of the instruction. (See People v. Carpenter (1997) 15 Cal.4th 312, 395 [testimony that as a result of drinking alcohol the defendant’s speech was “‘weird,’” he had a “‘dreamy look in his eyes,’” and was “‘in a daze, like spaced out’” was insufficient to warrant a diminished capacity instruction].)
To establish a claim of ineffective assistance of counsel, appellant must show that his counsel’s conduct was deficient -- that it fell below an objective standard of reasonableness under prevailing professional norms -- and that he was prejudiced as a result, meaning a favorable verdict was reasonably probable had the instruction been given. (People v. Palmer (2005) 133 Cal.App.4th 1141, 1158.) Appellant bears a heavy burden of proof of both requirements by a preponderance of the evidence. (In re Stier (2007) 152 Cal.App.4th 63, 81-82.) Since there was no substantial evidence to support the intoxication instruction, the trial court had no obligation to give it, either sua sponte or upon request. Consequently, appellant’s trial counsel did not provide ineffective assistance of counsel by failing to request the instruction. (See People v. McPeters (1992) 2 Cal.4th 1148, 1173 [defense counsel not required to advance unmeritorious arguments].)
Even assuming counsel would have been entitled to a jury instruction had she asked for it, we conclude counsel had a reasonable tactical reason for not doing so. To prove that counsel’s performance was deficient, appellant must affirmatively show counsel’s deficiency cannot be explained on the basis of any knowledgeable choice of tactics. (People v. Floyd (1970) 1 Cal.3d 694, 709, disapproved other grounds in People v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 36.) We note the strong presumption that counsel’s performance falls within the wide range of reasonable professional representation. (People v. Jones (1997) 15 Cal.4th 119, 178, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Where the record shows counsel’s omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed. (People v. Pope (1979) 23 Cal.3d 412, 425, overruled on another point in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.)
The record indicates counsel’s primary defense theory was simply that appellant did not commit the robbery. Appellant testified repeatedly that he did not take Franklin’s wallet and was not present when the wallet was taken or when Franklin was stabbed. The focal point of counsel’s closing argument concerning the robbery was that appellant had left the scene, did not commit the robbery, that it was Cota who did it, and that victim Franklin was not being truthful. Counsel did argue an alternative defense of accident, but this appears to have been directed at the firearm allegations.
Because the central defense theory was that appellant did not commit the robbery, any instruction on voluntary intoxication would arguably have been inconsistent with this primary argument. (See People v. Wader (1993) 5 Cal.4th 610, 643 [rejecting claim of ineffective assistance of counsel for failing to request voluntary intoxication instruction because it “would have been inconsistent with the defendant’s theory of the case”].) Accordingly, because there was a reasonable tactical explanation for counsel’s decision not to request such an instruction, appellant has failed to show his counsel was ineffective.
Disposition
The judgment is affirmed.
WE CONCUR: BIGELOW, J., BENDIX, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.