Opinion
C073001
02-22-2017
THE PEOPLE, Plaintiff and Respondent, v. TAURUS AQUARIUS BAKER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 10F03061)
A jury convicted defendant Taurus Aquarius Baker of murder and attempted robbery of Joseph Bush and robbery of Alexander Honcoop. The jury found true the allegations that defendant was engaged in the attempted commission of a robbery when he killed Bush, that defendant intentionally and personally used a firearm during the robbery of Honcoop, and that defendant was 16 years old at the time of the offenses. The trial court sentenced defendant to an aggregate determinate prison term of 13 years, followed by a consecutive indeterminate term of 25 years to life.
Defendant now contends (1) the trial court improperly modified the corpus delicti jury instruction (CALCRIM No. 359) after defense counsel gave his closing argument based on an agreed-upon unmodified instruction, and (2) his conviction for attempted robbery must be reversed because the People failed to prove the corpus delicti of attempted robbery without relying on his out-of-court statements. Defendant also raises related ineffective assistance of counsel claims.
We conclude (1) the trial court properly instructed the jury on the law after defense counsel misstated the law during his closing argument, and (2) defendant forfeited his corpus delicti claim because he did not object on that ground in the trial court. We also reject defendant's ineffective assistance of counsel claims.
We will affirm the judgment.
BACKGROUND
A police officer investigating a report of gunshots in 2006 found Joseph Bush dead in a car in a Mack Road parking lot shared by Seafood City and other businesses. Bush was seated in the driver's seat of the car. A pathologist opined that the shooter stood about two feet from Bush. He was killed with a .22 caliber weapon. Police did not locate any shell casings at the scene, there were no substantial leads, and the case went cold.
More than two years later, confidential informant Alexander Honcoop arranged to buy a gun and cocaine from Joel Trumbo. Honcoop received a call from a cell phone associated with defendant; he was told to meet Trumbo at a shopping center parking lot. Elk Grove Police Sergeant Ryan Elmore monitored the transaction. Honcoop was equipped with a recording device disguised as a pager.
Honcoop entered a car driven by Trumbo. Nimoy Davis and a black male with braids or dreadlocks were also in the car. Davis and the man with the dreadlocks pointed revolvers at Honcoop. They took Honcoop's money, cell phone, and pager. Davis gave Honcoop a backpack. The backpack contained a cardboard cutout of a gun and no drugs.
Sergeant Elmore identified Davis as one of the men in Trumbo's car. Police found a gun and some of the money Sergeant Elmore had given to Honcoop for the transaction in Davis's home. Police found defendant's palm prints on Trumbo's car. Davis was arrested for the robbery.
Davis's defense attorney contacted police in 2009 about information Davis might have concerning the Bush homicide. Davis told Sacramento Police Detectives Jason Kirtlan and Henry Jason that defendant admitted killing Bush and being caught with evidence of the homicide the day after the killing.
Detective Kirtlan found a police report concerning police contact with defendant the day after the Bush homicide. At that time police had apprehended defendant in connection with a report of a robbery at Adalberto's Mexican restaurant. A police officer saw defendant with a backpack ultimately found to contain two PMC brand .22 caliber bullets. Defendant told the police he, Francisco Ragsdale, and Kelvin Hollins saw a guy they knew from school and decided to pretend to rob the guy as a joke. Defendant said he ran from the police because his friends ran. Defendant said Hollins was the one wearing the backpack.
A criminalist testified that the bullet retrieved from Bush's body and the bullets found in the backpack shared the same design features. The criminalist could not say the bullet retrieved from Bush's body was manufactured by PMC.
Davis agreed to obtain tape-recorded admissions about the Bush homicide from defendant. He recorded about 10 meetings with defendant. The prosecutor played portions of those recordings at defendant's trial. Defendant made a number of statements that could be construed as incriminating.
Defendant told Davis, "I was gonna clap that nigga. [¶] . . . [¶] He acted like he (unintelligible) some thang, even though I had a gun on me (unintelligible) I was gonna clap his ass." "Clap" means to shoot and "thang" refers to a gun. When Davis asked, "where at?" defendant replied, "Mack Road." Defendant did not deny that he killed someone on Mack Road when Davis said, "You gonna have two bodies under your belt on the Mack." Davis testified that "You gonna have two bodies under your belt on the Mack" meant that defendant committed two murders on Mack Road.
Defendant provided more information about one Mack Road incident in a subsequent recorded conversation. He recounted that he and Hollins were on Mack Road "[t]rying to hit a lick." "Hit a lick" means commit a robbery. Defendant said it was "a robbery that went bad." He said the person was trying to do something. Defendant said he gave the gun and backpack to Hollins, and defendant ran home. Defendant agreed he shot someone by S and D Market, which was in the same shopping center as Seafood City.
Defendant said he thought his fingerprint was on the door on "[t]hat Mack Rd. shit." He said Hollins would not "tell" because then "he gotta tell on himself." Defendant did not deny killing someone on Mack Road when Davis said he heard such rumors. Defendant also talked about attempting to commit a robbery at Adalberto's. He said he had "the thang;" "it's the hot thing the same thing from Mack Rd. It's the hot one." Davis testified that "hot thang" refers to a gun that was used to commit a crime. Defendant said he ran when he saw the police and he threw the gun, and while the police found the backpack with the bullets in it, the police did not find the gun.
Detectives caused a story regarding the Bush homicide to be aired on television as part of a Crime Alert seeking the public's help in solving crimes. Defendant acknowledged, during a recorded conversation with Davis, that defendant saw the Crime Alert story and knew he was "hot." But defendant said, "they ain't got nothin on me." He agreed with Davis that the police did not have a witness or fingerprints. Nevertheless, defendant was worried about the police monitoring his cell phone calls. He expressed concern that he was going to "get the max."
Davis testified at defendant's trial. He said defendant related to Davis, in 2007, that defendant came across a man sleeping in a car, intended to rob him, and shot the victim when the victim reached for something or tried to start the car. Davis admitted his role in the Honcoop robbery. He identified defendant as the third robber. He said he and defendant used .38 caliber revolvers during the Honcoop robbery. Davis received a reduced sentence for that robbery.
The jury convicted defendant of the murder (Pen. Code, § 187, subd. (a) -- count one) and attempted robbery of Bush (§§ 211, 664 -- count two) and the robbery of Honcoop (§ 211 -- count three). The jury found true the allegations that defendant was engaged in the attempted commission of a robbery when he killed Bush (§ 190.2, subd. (a)(17), that defendant intentionally and personally used a firearm during the Honcoop robbery (§ 12022.53, subd. (b)), and that defendant was 16 years old at the time of the offenses (Welf. & Inst. Code, § 707, subd. (d)(2)(A)). The jury found not true the allegation that defendant intentionally and personally discharged a firearm during the Bush attempted robbery and murder. (§ 12022.53, subds. (b), (c), (d).)
Further undesignated statutory references are to the Penal Code. --------
The trial court sentenced defendant to an aggregate determinate prison term of 13 years, followed by a consecutive indeterminate term of 25 years to life. Additional background facts will be provided in the discussion as relevant to the contentions on appeal.
DISCUSSION
I
Defendant argues the trial court violated his right to a fair trial, due process of law, and effective assistance of counsel when it modified the instruction on the corpus delicti rule (CALCRIM No. 359) after defense counsel gave his closing argument based on an agreed-upon, unmodified instruction.
A
Under the corpus delicti rule, there must be proof, aside from the defendant's statements, that a crime actually occurred. (People v. Alvarez (2002) 27 Cal.4th 1161, 1178.) Such independent proof may be circumstantial and need not be beyond a reasonable doubt. (Id. at p. 1171.) A slight or prima facie showing permitting the reasonable inference that a crime was committed is sufficient even if a noncriminal explanation is also plausible. (Ibid.) And the evidence need not point to defendant as the perpetrator. (People v. Ray (1996) 13 Cal.4th 313, 342.) "[O]nce the necessary quantum of independent evidence [to prove the corpus delicti] is present, the defendant's extrajudicial statements may then be considered for their full value to strengthen the case on all issues" including the identity of the perpetrator. (Alvarez, supra, 27 Cal.4th at p. 1171.) The purpose of the rule is to ensure that the defendant is not admitting a crime that never occurred. (Id. at p. 1169.) The corpus delicti rule does not apply to the elements of the underlying felony when the defendant is charged with felony murder, the felony-murder special circumstance, and the knowledge and intent requirements for aiding and abetting. (§ 190.41; People v. Gutierrez (2002) 28 Cal.4th 1083, 1128 (Gutierrez); People v. Cantrell (1973) 8 Cal.3d 672, 680-681 (Cantrell), disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12 and People v. Wetmore (1978) 22 Cal.3d 318, 324; People v. Miranda (2008) 161 Cal.App.4th 98, 101, 107-108 (Miranda).)
B
The trial judge conducted a jury instruction conference prior to closing arguments. The only comment with regard to CALCRIM No. 359 at that conference was the trial judge's statement that the instruction would be given. The parties agree the trial court said it would give an unmodified CALCRIM No. 359 instruction. At the time of trial, CALCRIM No. 359 provided: "The defendant may not be convicted of any crime based on (his/her) out-of-court statement[s] alone. You may only rely on the defendant's out-of-court statements to convict (him/her) if you conclude that other evidence shows that the charged crime [or a lesser included offense] was committed. [¶] That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed. [¶] The identity of the person who committed the crime [and the degree of the crime] may be proved by the defendant's statement[s] alone. [¶] You may not convict the defendant unless the People have proved (his/her) guilt beyond a reasonable doubt." (CALCRIM former No. 359 (Aug. 2006 rev.).)
The trial court did not instruct the jury with CALCRIM No. 359 before closing arguments. It reserved some of the jury instructions until after closing arguments were presented.
Regarding the count two charge for attempted robbery of Bush, the prosecutor argued defendant was guilty as a direct perpetrator. In the alternative, the prosecutor said the jury could find that defendant aided and abetted Hollins in attempting to commit a robbery. The prosecutor pointed to defendant's recorded statements that he intended to commit a robbery and that he had a gun.
Defense counsel, in turn, said the People's entire case on count two was based on defendant's statements to Davis. Defense counsel explained the judge would instruct the jury it could not convict defendant based on his out-of-court statements alone, and the jury could only consider defendant's out-of-court statements if it concluded other evidence showed the charged crime was committed. Defense counsel said the instruction meant the jury could not consider what defendant told Davis, and once the jury disregarded defendant's statements to Davis, the only evidence was that Bush was found dead in a car. According to defense counsel, the prosecution failed to prove attempted robbery and the felony-murder special circumstance. It appears defense counsel also argued the corpus delicti rule applied to aiding and abetting liability and felony murder.
A sidebar conference was held at the prosecutor's request following defense counsel's closing argument. According to the prosecutor, the bench notes for CALCRIM No. 359 said independent evidence is not required to prove the elements of an underlying felony when the defendant is charged with felony murder, and special circumstances when the defendant is charged with a felony-based special circumstance murder. The prosecutor asked the trial court to instruct the jury on those points based on defense counsel's closing statement.
The next court day, the prosecutor submitted a modified CALCRIM No. 359 instruction which the trial court found confusing. The trial court proposed different language. Defense counsel asked the trial court to give an unmodified CALCRIM No. 359 instruction, but if the trial court instructed with a modified instruction, defense counsel asked the trial court to instruct the jury that the corpus delicti rule applied to the charged crimes and the first and fourth elements of aiding and abetting. The prosecutor argued that a modified CALCRIM No. 359 instruction was required because defense counsel "inadvertently misargued" the corpus delicti rule.
The trial court determined it would instruct with the modified CALCRIM No. 359 instruction it proposed and permit defense counsel to re-argue. Defense counsel expressed concern that the jury might think he tried to mislead the jury. Defense counsel said he did not want to "go too much into it" with the jury.
The trial judge told the jury he and counsel modified one of the instructions to fit the case, and defense counsel would be allowed to supplement his argument based on that modification. The trial judge said the modified instruction and defense counsel's augmented closing argument should not suggest to the jury that the modified instruction was more important than or different from the other instructions.
The trial judge read the following modified CALCRIM No. 359 instruction to the jury: "The defendant may not be convicted of any crime based on his out-of-court statements alone. You may only rely on the defendant's out-of-court statements to convict him if you conclude that, quote, other evidence, closed quote, shows that the charged crime was committed. That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed. [¶] The following may be proved by defendant's statements alone: The degree of the crime charged, the identity of the person who committed the crime, the elements of the underlying felony for the felony murder charge, the underlying felony for the special circumstances allegation, and the knowledge and intent requirements for aiding and abetting. [¶] You may not convict defendant unless the People have proved his guilt beyond a reasonable doubt."
Defense counsel then presented a supplemental closing argument. He explained to the jury there must be some evidence, other than defendant's out-of-court statements, to prove defendant was guilty of the murder and attempted robbery of Bush and the robbery of Honcoop. Defense counsel said independent evidence was also required for the first and fourth elements of aiding and abetting. Defense counsel added that his argument on corpus delicti was only a small portion of his case, and he only argued the corpus delicti rule after showing that the People had failed to prove its case against defendant. Defense counsel said the modified instruction did not change the fact that the People's case against defendant was based on recordings that were of "poor quality" and were insufficient to establish defendant's guilt beyond a reasonable doubt.
The prosecutor acknowledged, in rebuttal, that the corpus delicti rule applied to the charge of murder, but he argued there was more than enough evidence of a murder even without defendant's statements. The prosecutor also acknowledged that the corpus delicti rule applied to the attempted robbery and robbery counts. As for the attempted robbery count, the prosecutor said defendant attempted to rob Adalberto's the day after Bush was killed. The prosecutor argued there was no reason for defendant to kill Bush. The prosecutor also asked the jury to consider the gunshot residue on Bush's hand and shoulder. The prosecutor told the jury it could consider defendant's statements in deciding whether the underlying elements of attempted robbery occurred as it related to felony murder and in deciding the murder special circumstance, defendant's knowledge of an attempted robbery, and aiding and abetting.
C
Defendant does not claim the trial court gave an incorrect modified instruction. Rather, he argues the trial court erred in modifying the instruction after defense counsel presented his closing argument based on the unmodified instruction.
"In any criminal case which is being tried before the court with a jury, all requests for instructions on points of law must be made to the court and all proposed instructions must be delivered to the court before commencement of argument. Before the commencement of the argument, the court, on request of counsel, must: (1) decide whether to give, refuse, or modify the proposed instructions; (2) decide which instructions shall be given in addition to those proposed, if any; and (3) advise counsel of all instructions to be given." (§ 1093.5.) This rule gives the parties an opportunity to intelligently argue the case to the jury. (People v. Kronemyer (1987) 189 Cal.App.3d 314, 341, disapproved on another point in People v. Whitmer (2014) 59 Cal.4th 733, 739-741.) "However, if, during the argument, issues are raised which have not been covered by instructions given or refused, the court may, on request of counsel, give additional instructions on the subject matter thereof." (§ 1093.5; see People v. Ardoin (2011) 196 Cal.App.4th 102, 127-128 [trial court may give a modified jury instruction after closing arguments particularly upon learning of the jury's confusion].)
Section 1093.5 is consistent with the principle that a trial court must ensure the jury is correctly instructed on the law. (See generally People v. Frye (1998) 18 Cal.4th 894, 1028 [A defendant "is not entitled to an instruction that misstates the law."], disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Kelly (1992) 1 Cal.4th 495, 532 ["The court had no duty to give a legally incorrect instruction."]; People v. Beardslee (1991) 53 Cal.3d 68, 97 ["The court has a primary duty to help the jury understand the legal principles it is asked to apply."].) "[T]he judge must always be alert to the possibility that counsel in the course of argument may have befuddled the jury as to the law. If this occurs, then either at the time the confusion arises or as part of the final instructive process the judge should rearticulate the correct rule of law. Just as the law imposes a sua sponte obligation to instruct on certain principles of law in the first place (those rules openly and closely connected with the case) so does it impose on the judge a duty to reinstruct on the point if it becomes apparent to him that the jury may be confused on the law." (People v. Valenzuela (1977) 76 Cal.App.3d 218, 221, italics omitted.)
Here, defense counsel misstated the law regarding the corpus delicti rule. As defendant now acknowledges, the rule does not apply to the elements of the underlying felony when the defendant is charged with felony murder, the felony-murder special circumstance, and the knowledge and intent requirements for aiding and abetting. (§ 190.41; Gutierrez, supra, 28 Cal.4th at p. 1128; Cantrell, supra, 8 Cal.3d at pp. 680-681; Miranda, supra, 161 Cal.App.4th at pp. 101, 107-108.) The agreed-upon, unmodified CALCRIM No. 359 instruction did not address those points. Thus, the trial court could not have referred the jury to the unmodified instruction when defense counsel misspoke. (Cf. People v. Pierce (2009) 172 Cal.App.4th 567, 571 [trial court directed defense counsel to restate the law as set out in the jury instructions when the prosecutor objected that defense counsel's closing argument remark misstated the law].)
Moreover, nothing in the record before us indicates the trial judge or the prosecutor misled defense counsel in formulating his arguments to the jury. (People v. Bastin (Colo. App. 1996) 937 P.2d 761, 764 [defense counsel was not unfairly misled in formulating his closing arguments when the specific legal argument he made was not brought to the court's attention before closing arguments].) The trial judge and counsel did not discuss any exceptions to the corpus delicti rule prior to closing arguments. Under the circumstances, the trial court did not violate defendant's rights to a fair trial, due process of law, or effective assistance of counsel by correctly advising the jury on the law after defense counsel misstated the law.
People v. Sanchez (1978) 83 Cal.App.3d Supp. 1, a case cited by defendant, is factually distinguishable. Unlike in Sanchez, defense counsel's statements were not based on a point expressly approved by the trial court or expressly stated in the agreed-upon unmodified instruction, and the trial judge did not interrupt defense counsel's closing argument or make a statement from which the jury might infer that defense counsel had misled the jury.
Defendant contends without explanation that his trial counsel "was deprived of whatever else he might have argued had the modified instruction been given earlier." We do not consider undeveloped perfunctory claims. (People v. Oates (2004) 32 Cal.4th 1048, 1068, fn. 10 (Oates); People v. Earp (1999) 20 Cal.4th 826, 881 (Earp).)
D
Defendant further claims he received ineffective assistance of counsel because his trial counsel misstated the law as to the corpus delicti rule.
To establish ineffective assistance of trial counsel, defendant must prove that (1) trial counsel's representation was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficiency resulted in prejudice to the defendant. (People v. Maury (2003) 30 Cal.4th 342, 389 (Maury); Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) If defendant makes an insufficient showing on either one of these components, his ineffective assistance claim fails. (People v. Holt (1997) 15 Cal.4th 619, 703; Strickland v. Washington, supra, 466 U.S. at p. 687 .)
"[P]rejudice must be affirmatively proved; the record must demonstrate 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citation.]" (Maury, supra, 30 Cal.4th at p. 389) It is not enough for defendant to show that errors had some conceivable effect on the outcome of the case. (People v. Ledesma (1987) 43 Cal.3d 171, 217.) Defendant must show a reasonable probability of a more favorable result. (Id. at pp. 217-218; Strickland v. Washington, supra, at pp. 693-694.)
Defendant claims his trial counsel's misstatement of the law of corpus delicti during closing argument destroyed his credibility in the eyes of the jury and, thus, destroyed his defense. We disagree.
After the trial court announced its intent to instruct the jury with a modified version of CALCRIM No. 359, defense counsel expressed concern that the jury might think he tried to mislead the jury. The trial judge addressed counsel's concern by telling the jury the revised CALCRIM No. 359 instruction was not available the prior day so defense counsel would be allowed to supplement his argument based on the modification. The trial judge did not indicate that defense counsel did anything improper. Defense counsel emphasized those portions of his original closing statements which were consistent with his augmented closing statement remarks. His primary argument -- that the recordings of defendant's statements to Davis did not establish defendant's guilt of the charged offenses beyond a reasonable doubt -- was unchanged.
Nothing in the record shows that the jury perceived defense counsel's closing statement as an effort to mislead the jury. We reject defendant's ineffective assistance of counsel claim because defendant fails to demonstrate a reasonable probability of a more favorable result in the absence of his trial counsel's misstatement regarding the corpus delicti rule. (Maury, supra, 30 Cal.4th at p. 389; Strickland v. Washington, supra, 466 U.S. at p. 687 .)
Citing United States v. Cronic (1984) 466 U.S. 648 , defendant argues he should not be required to demonstrate prejudice in this case because he was denied the assistance of counsel at the critical stage of closing argument. The United States Supreme Court identified the following circumstances where prejudice is presumed: counsel is totally absent or prevented from assisting the defendant during a critical stage of the proceeding; counsel entirely fails to subject the prosecution's case to meaningful adversarial testing; and defendant is denied the right of effective cross-examination. (Id. at p. 659 & fn. 25 [80 L.Ed.2d at p. 668 & fn. 25].) The Supreme Court said there are also circumstances when, although counsel is available to assist the defendant during trial, the likelihood that any lawyer could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial. (Id. at pp. 659-660 .) Apart from the above circumstances, the defendant must demonstrate that specific errors of counsel resulted in prejudice to establish a Sixth Amendment violation. (Id. at p. 659, fn. 26 [80 L.Ed.2d at p. 668, fn. 26].)
The circumstances in this case are not of a magnitude warranting a presumption of prejudice. Defendant was represented by counsel at trial. Counsel effectively cross-examined prosecution witnesses. He presented a closing argument regarding the crimes against Bush based on the theory defendant insisted upon, i.e., that defendant was not present at the scene of the crime. The closing argument did not fail "to subject the prosecution's case to meaningful adversarial testing." The trial judge concluded, in the context of an ineffective assistance of counsel claim in a motion for a new trial, that defense counsel represented defendant very ably in the case. We have no basis for disagreeing with the trial court's assessment.
Defendant states in a perfunctory manner that the trial court abused its discretion in denying his motion for a new trial based on his trial counsel's erroneous statement of the corpus delicti rule. We do not discuss the claim because it is not supported with analysis. (Oates, supra, 32 Cal.4th at p. 1068, fn. 10; Earp, supra, 20 Cal.4th at p. 881.)
II
Defendant next argues his conviction for attempted robbery must be reversed because the People failed to prove the corpus delicti of attempted robbery without relying on his out-of-court statements.
The Attorney General responds that defendant's corpus delicti claim is forfeited because he did not object on that ground in the trial court. We agree with the Attorney General. (People v. Horning (2004) 34 Cal.4th 871, 899 (Horning) [defendant may not object that the prosecution did not establish the corpus delicti of an uncharged crime when he did not object on that ground at the trial]; People v. Martinez (1994) 26 Cal.App.4th 1098, 1103-1104; People v. Sally (1993) 12 Cal.App.4th 1621, 1628; see also People v. Martinez (1996) 51 Cal.App.4th 537, 544.)
The trial court and counsel discussed the recordings of defendant's statements to Davis prior to trial. During those discussions, defendant did not ask the trial court to limit the jury's consideration of defendant's out-of-court statement under the corpus delicti rule. Defendant also did not object to the recordings when the prosecutor played them at trial.
Because defendant did not object on this ground, the prosecutor did not have the need or opportunity to fill any asserted evidentiary gap. The prosecutor listed Hollins as a potential witness, but did not call him to testify. The People's trial brief said Hollins told detectives defendant tried to steal Bush's car and defendant had a .22 caliber revolver. Testimony by Hollins would have supplied independent proof of the corpus delicti for attempted robbery. The prosecution might have withheld such independent proof because defendant did not raise a corpus delicti objection at trial as a strategy to avoid the presentation of more damaging evidence. (Horning, supra, 34 Cal.4th at p. 899 [objection that the prosecution did not establish the corpus delicti of an uncharged crime at trial would have given the prosecutor the opportunity to attempt to satisfy the evidentiary gap]; People v. Wright (1990) 52 Cal.3d 367, 404, disapproved on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459.) "[I]t would be inappropriate to allow a party not to object to an error of which the party is or should be aware, ' "thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not." ' " (In re Dakota S. (2000) 85 Cal.App.4th 494, 501; see People v. French (2008) 43 Cal.4th 36, 46; see also In re Sheena K. (2007) 40 Cal.4th 875, 881 [rule of forfeiture encourages parties to bring errors to the attention of the trial court so that they may be corrected].)
Defendant next argues that if his appellate claim is forfeited, his trial counsel was ineffective for failing to object based on the corpus delicti rule.
The California Supreme Court has said it is particularly difficult to prevail on an appellate claim of ineffective assistance of counsel. (People v. Mai (2013) 57 Cal.4th 986, 1009.) We review trial counsel's performance with deferential scrutiny, indulging a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance and recognizing the many choices that attorneys make in handling cases and the danger of second-guessing an attorney's decisions. (Maury, supra, 30 Cal.4th at p. 389; Strickland v. Washington, supra, at p. 689.) "Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts. [Citation.]" (Maury, supra, 30 Cal.4th at p. 389.) "On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (Mai, supra, 57 Cal.4th at p. 1009.)
Defendant's trial counsel could have reasonably believed that objecting on the ground of the corpus delicti rule and, thereby, requiring the prosecutor to call Hollins as a witness or to seek admission of Hollins's police interview statement concerning the attempted robbery of Bush would have been more damaging to defendant's case. Defendant took the position that he was not present when Bush was shot. According to the People's trial brief, Hollins would have placed defendant at the scene of the shooting. Defendant's ineffective assistance claim fails because a satisfactory explanation existed for defense counsel's failure to raise a corpus delicti objection in the trial court.
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
NICHOLSON, Acting P. J. /S/_________
HOCH, J.