Opinion
D059503 Super. Ct. No. FVA700012
12-15-2011
THE PEOPLE, Plaintiff and Respondent, v. CARLOS BERNAL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Bernardino County, Ingrid A. Uhler, Judge. Affirmed.
A jury convicted Carlos Bernal of voluntary manslaughter (Pen. Code, § 192, subd. (a)), as a lesser included offense of first degree murder, and found he personally and intentionally discharged a firearm, which proximately caused great bodily injury or death to the victim. The jury also made a not true finding on an allegation that Bernal committed the crime for the benefit of a criminal street gang. The trial court sentenced Bernal to 21 years in prison consisting of the upper term of 11 years for voluntary manslaughter and the aggravated 10-year enhancement for personal use of a firearm under section 12022.5, subdivision (a). (See fn. 2, ante.)
Statutory references are to the Penal Code unless otherwise specified.
The jury's true findings were made with respect to allegations under section 12022.53, subdivisions (b), (c) and (d). Because section 12022.53 does not apply to voluntary manslaughter (§ 12022.53, subd. (a)), the trial court ordered the true findings on the section 12022.53 allegations stricken and ordered they be substituted with an allegation under section 12022.5, subdivision (a). The court then found the section 12022.5, subdivision (a), allegation true based on the factual jury findings with respect to the section 12022.53 allegations.
FACTS
Bernal, who was originally from Chula Vista in San Diego County, moved to Rialto in San Bernardino County where his mother lived. Bernal was a member of the Varrio Chula Vista (VCV) criminal street gang and his moniker was "Bugsy."
In October 2006, Bernal met Stephanie Lenczyk at a gas station in Rialto, and they began a relationship. Lenczyk was a member of the South Side Rialto criminal street gang. Lenczyk, who was the gang's only female member, was known to carry a derringer. By the end of the year, Bernal had stopped seeing Lenczyk and had started a relationship with Crystal Moraga, who had been Lenczyk's friend. Moraga and Lenczyk had become friends after meeting in jail.
After Lenczyk found out about Bernal and Moraga, she became very angry.
During January 2007, Bernal's house and the house and place of business of Bernal's mother were the targets of drive-by shootings by members of the South Side Rialto gang.
On January 31, Bernal was driving through a Wal-Mart parking lot. Lenczyk drove her vehicle next to Bernal's vehicle, and her passenger—a South Side Rialto gang member—fired a gun and hit Bernal's car.
Lenczyk phoned Bernal several times that night, and they argued. Lenczyk said she wanted Moraga to meet her and fight. Moraga, who was much smaller than Lenczyk, did not want to fight her. Finally, Bernal drove Moraga, along with his childhood friend from Chula Vista, Joshua Mazin, and Mazin's girlfriend, to a location selected by Lenczyk. Mazin and his girlfriend were temporarily living with Bernal because "we had nowhere to stay in San Diego." Mazin had stolen a truck in San Diego and driven it to San Bernardino. Bernal asked Mazin, who also was a member of the VCV street gang, to back him up in case of trouble.
There was conflicting testimony over whether Moraga was dropped off at a Circle K store before Bernal and the others arrived at the location.
When Bernal and the others arrived, Bernal and Mazin got out of the stolen truck. Lenczyk, who had been in a garage playing darts with her friend Eric Otterbeck, went outside and started swearing and yelling at Bernal. As Bernal and Lenczyk argued, two or three shots were fired. Bernal and Mazin ran to the truck, which sped away. Once they gathered their things at Bernal's residence, Mazin and his girlfriend drove to San Diego. Bernal and Moraga later drove to San Diego as well.
Otterbeck called 911. When law enforcement arrived, Lenczyk was experiencing difficulty breathing. She told officers that "Bugsy" shot her. When asked for more information, Lenczyk said it was "Bugsy" from Chula Vista and his name was Carlos. Lenczyk died from two gunshots to the torso. Police did not recover any firearm at the scene.
After Bernal was arrested, he told police he threw the gun he used into a river in San Diego County; the gun was not recovered.
Two days before the shooting, law enforcement officers located graffiti on a wall in Rialto, which contained, among other things, the words: "Bugsy"; "VCV"; and "Rathoe." The word "Rathoe" was crossed out. Two officers with gang experience testified the graffiti meant that a female member of South Side Rialto was going to be attacked violently. One of these officers testified that the number "13" in the graffiti referred to the prison gang, the Mexican Mafia, and its control of criminal street gangs. Another officer, who did not have gang experience, testified that the placement of "Bugsy" at the beginning of the graffiti indicated that Bernal was the person who wrote the graffiti.
The prosecution presented documents with the moniker "Bugsy" that were seized from Bernal's jail cell.
Testifying in his own defense, Bernal said he shot Lenczyk in self-defense. Bernal testified that when they were driving to the meeting place where Lenczyk was, Mazin gave him a gun, which he put in the pocket of his hooded sweatshirt. Bernal gave this account: When they arrived, Lenczyk kept saying "Where's your fuckin' bitch at?" When she was about five feet away, Lenczyk pulled out her derringer. When he saw the gun, Bernal panicked, and after hearing one shot, he grabbed his gun and shot twice. Bernal attributed the shooting to Lenczyk's jealousy.
In his testimony, Mazin had specifically denied giving a gun to Bernal.
Bernal also claimed that his young son was in the car that was shot at earlier that day in the Wal-Mart parking lot. Bernal testified that it was Lenczyk who had fired at his vehicle in the parking lot, not her fellow South Side Rialto gang member.
Mazin had testified that Bernal's son was not in the vehicle.
At the start of the sentencing hearing, the trial court related it had read the probation report, the defense sentencing memorandum and the submitted victim impact statements. The trial court then announced it intended to impose the maximum prison term of 21 years. During the sentencing hearing, the trial court heard victim impact statements from five relatives of Lenczyk and a family friend. After Lenczyk's mother read her statement, the court commented: "I think the tragic part -- and I'm kind[] [of] going through that right now with my 16-year-old -- is they don't choose their friends wisely." After Lenczyk's aunt read her brother's victim impact statement, the court said it intended to impose the maximum sentence based on Bernal's conduct, his prior criminal history and his postoffense conduct in jail. Bernal's counsel did not argue beyond pointing out there were mitigating factors and submitted the issue based on his sentencing memorandum.
In sentencing Bernal to the upper term of 11 years for voluntary manslaughter, the trial court listed the following circumstances in aggravation: the crime involved great violence; the jury made an implied factual finding the victim was not armed and there was no physical evidence to establish the victim was armed; and the victim was particularly vulnerable. In response to the defense argument in its sentencing memorandum that the crime was committed because of unusual circumstances and was not likely to occur again, the court stated: "Carlos Bernal is a gangbanger through and through." The court went on to say Bernal is unlikely to disassociate himself from his gang, his conduct in jail indicates a refusal to follow the rules and he is a serious threat to society and the community.
As to the personal gun use, the court imposed the aggravated enhancement of 10 years because the crime involved planning and professionalism. The court noted, among other things, a stolen truck was used in the commission of the crime, Bernal threw away the gun and the graffiti indicated that Bernal planned the crime.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth evidence in the superior court. Counsel presents no argument for reversal, but asks that this court review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), counsel refers to as possible, but not arguable issues: (1) whether a remand for resentencing under People v. Sandoval (2007) 41 Cal.4th 825 is required because the offense predated amendment of the state's sentencing law and the court did not list Bernal's criminal record when imposing the upper term for voluntary manslaughter; (2) whether there was sentencing error because the trial court used improper sentencing factors, such as the court's own personal experience (her 16-year-old daughter), Bernal's postoffense conduct, the extreme violent nature of the crime, the vulnerability of the victim and Bernal's gang activities, even though the jury found the gang allegation not true; (3) whether Bernal was denied due process and a fair hearing by the court's consideration of multiple victim impact statements in imposing the upper term; (4) whether Bernal preserved his right to raise sentencing error by personally objecting to the sentence on the basis the court did not consider mitigating factors, and if not, whether the upper term sentence was attributable to ineffective assistance of counsel; (5) whether there was prejudice from the prosecution's failure to produce substantial evidence to prove all elements of gang enforcement; (6) whether the court erred prejudicially by admitting Bernal's postoffense jailhouse poetry; (7) whether the court erred prejudicially by admitting irrelevant evidence concerning the Mexican Mafia; (8) whether the court erred by imposing a firearm enhancement under section 12022.5 when the information charged only section 12022.53, which does not apply to the lesser included offense of voluntary manslaughter; (9) whether the court erred by not giving a unanimity instruction on alternative legal theories of heat of passion and imperfect self-defense; and (10) whether there was sufficient evidence to warrant an instruction on involuntary manslaughter.
We granted Bernal permission to file a brief on his own behalf. He has responded.
Bernal claims errors based on the same grounds that were raised in all but two of the 10 Anders issues listed by appellate counsel.
Bernal does not raise the Anders issues regarding the multiple victim impact statements and the admission of his postoffense jailhouse poetry.
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No remand for resentencing under People v. Sandoval, supra, 41 Cal.4th 825 is required. Although the trial court did not cite Bernal's criminal history as a reason when it formally imposed the upper term for voluntary manslaughter, the court cited this factor when it reiterated its intended sentence after one of the victim impact statements was read during the hearing. The court therefore gave the defense notice and the opportunity to object to the sentence, and this is sufficient regardless of when during the hearing the court announced its reasons for imposing the upper term. (People v. Gonzalez (2003) 31 Cal.4th 745, 752.) The date of the offense does not matter under these circumstances. The defendant's criminal history is a valid aggravating factor under both the current law and the former law for imposing the upper term. Only one factor in aggravation is required to impose the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728-729.)
The trial court's reference during the sentencing hearing to her own daughter, to Bernal's postoffense conduct, to Bernal's gang activities (even though the jury rejected the gang allegation) and to facts about the crime that should have been decided by the jury, do not render the upper term sentence improper because the court relied on a valid sentencing factor—namely, Bernal's criminal history. "If one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely (Blakely v. Washington (2004) 542 U.S. 296), the defendant is not 'legally entitled' to the middle term sentence, and the upper term sentence is the 'statutory maximum.' " (People v. Black (2007) 41 Cal.4th 799, 813.)
There was no prejudice from the prosecution's failure to produce substantial evidence to prove all of the elements of the gang allegation. The prosecution had the right to offer evidence to prove the gang allegation; that it failed to present sufficient evidence to do so is shown by the jury's rejection of the allegation. Second, the trial court's mention of Bernal's gang activities during sentencing was not prejudicial because the court used a valid sentencing factor—Bernal's criminal history. (See People v. Avalos (1984) 37 Cal.3d 216, 233 [use of improper factors not determinative when valid factors existed].)
A reading of the reporter's transcript of the sentencing hearing shows that Bernal's trial counsel pointed out there were mitigating factors outlined in his sentencing memorandum. Therefore, we conclude Bernal's right to raise claims of sentencing error was preserved. Bernal's alternative theory that trial counsel provided ineffective assistance of counsel by failing to adequately preserve this right fails because he cannot show prejudice from the alleged failure. To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) deficient performance by counsel as determined by prevailing professional standards, and (2) prejudice, or a reasonable probability that, but for the deficient performance, the trial would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-696.) To demonstrate prejudice, "[t]he defendant must show that there is 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." (Id. at p. 694.) Because an ineffective assistance of counsel claim fails on an insufficient showing of either element, we need not consider whether counsel's performance was deficient before determining whether the defendant suffered prejudice as a result of the alleged deficiencies of counsel. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.) There was no reasonable probability that the trial court would have sentenced Bernal to the middle as opposed to the upper term if trial counsel had made a stronger argument regarding mitigating circumstances.
Our review of the record shows the testimony concerning the Mexican Mafia was not extensive and was for the most part relevant. In referring to one of Bernal's tattoos, a gang expert testified the number 13 referred to the Mexican Mafia, a prison gang. This was relevant evidence because of the gang allegation. The gang expert also testified the Mexican Mafia controls gang crime in southern California. Finally, the expert testified that the South Side Rialto gang was out of favor with the Mexican Mafia because it did not follow the Mexican Mafia's rule prohibiting drive-by shootings. In our view, the evidence about the Mexican Mafia and the South Side Rialto gang helped—not hurt— Bernal's case.
The trial court did not err by imposing a firearm enhancement under section 12022.5 even though the information charged only section 12022.53. Section 12022.53 does not apply to voluntary manslaughter. (§ 12022.53, subd. (a).) Here, the court followed the procedure that was approved in People v. Strickland (1974) 11 Cal.3d 946, 962, when a true finding is made on an allegation that does not apply to a lesser included offense. This procedure also did not violate Bernal's right to due process. A defendant has the right to fair notice of the specific sentence enhancement allegation that will be invoked to increase punishment for his crimes. (People v. Mancebo (2002) 27 Cal.4th 735, 747.) Where the enhancement imposed arose out of the same conduct giving rise to the allegation pled in the information, the defendant has sufficient constitutional notice. (People v. Riva (2003) 112 Cal.App.4th 981, 1002-1003.)
The trial court did not err by not giving a unanimity instruction on the alternative legal theories of heat of passion and imperfect self-defense. "Juror unanimity is not required simply because different theories of liability are presented." (People v. Napoles (2002) 104 Cal.App.4th 108, 115, fn. 5.)
There was not sufficient evidence to warrant an instruction on involuntary manslaughter. A defendant commits involuntary manslaughter when the killing occurs (1) in the commission of an unlawful act, not amounting to a felony, i.e., a misdemeanor; or (2) in the commission of a lawful act which might produce death, performed in an unlawful manner, or without due caution and circumspection. (Pen. Code, § 192, subd. (b); People v. Cook (2006) 39 Cal.4th 566, 596.) There was no evidence that either of these situations occurred here. At the very least, Bernal committed an assault with a deadly weapon (§ 245, subd. (b)), which is a felony—not a misdemeanor. Further, there was no evidence Bernal acted lawfully in this homicide. Thus, an instruction was not warranted under either of the two statutory types of involuntary manslaughter. (People v. Garcia (2008) 162 Cal.App.4th 18, 32.)
Bernal also raises four new claims of error: (1) the gang detectives' interpretation of "Rathoe" in the wall graffiti was incorrect; (2) the gang detective's testimony about Lenczyk's dying declaration being recorded was false; (3) the trial court improperly denied his continuance request when he sought to change counsel; and (4) he was denied effective assistance of counsel because his new counsel was given only four days to prepare for trial.
Bernal asserts "Rathoe" in the graffiti referred to South Side Rialto gang—not to Lenczyk, as Detectives Aaron Vigil and Glenn Stark testified based on their experience investigating street gangs. We find no error. It was up to the jury as trier of fact to assess the detectives' opinion testimony and decide what weight, if any, to give to it. The detective's expert opinion was proper in light of the gang allegation and the key issues of intent presented by the case and the fact the average juror is not privy to the machinations in the average gangster's mind. (See People v. Valdez (1997) 58 Cal.App.4th 494, 507-508; People v. Avitia (2005) 127 Cal.App.4th 185, 192; see also Evid. Code, § 801.) Thus, a properly qualified gang expert may testify about a wide range of issues, including a gang's territory, retaliation, graffiti, hand signals, tattoos and clothing. (People v. Ochoa (2001) 26 Cal.4th 398, 438-439, abrogated on another point as stated in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14.)
To the extent that Bernal is claiming that Detective Vigil falsely testified that Lenczyk's dying declaration was recorded by a machine, we fail to see any prejudice. Vigil, one of the first law enforcement officers to arrive at the shooting scene, testified that Lenczyk told him "Bugsy" from Chula Vista had shot her and his first name was Carlos. Rialto police officer John Black, who also was one of the first officers to arrive, testified Lenczyk told him "Bugsy" had shot her. When Black asked who "Bugsy" was, Lenczyk said he was Carlos. When Black asked if Carlos was a gang member, Lenczyk replied: "Chula Vista."
Bernal claims that the trial court erred by denying him a continuance on the eve of trial when he moved to change retained counsel. In denying the continuance, the court said it viewed Bernal's move as a delay tactic and ruled both counsel could appear together. The court also noted: "For the record, Mr. Bernal has hired a series of attorneys. . . . [¶] And the interesting part about this is every time we're on the eve of trial . . . there's a problem. And so this Court has a problem with that. And this Court is now seeing that as a ruse; simple as that." The court noted that during the proceedings leading up to trial, Bernal had been represented by more than six attorneys.
The constitutional rights of due process and of effective assistance of counsel include a right to defend with privately retained counsel of one's own choice. (People v. Courts (1985) 37 Cal.3d 784, 789.) Given this weighty constitutional backdrop, "trial courts are required to 'make all reasonable efforts to ensure that a defendant financially able to retain an attorney of his own choosing can be represented by that attorney.' " (Id. at p. 790.) Nonetheless, this right of retained counsel is not absolute. For example, a defendant may not demand a continuance to exercise this right if he has been " 'unjustifiably dilatory' in obtaining counsel," or " 'if he arbitrarily chooses to substitute counsel at the time of trial.' " (Id. at pp. 790-791.) The decision to grant or deny a continuance in this context is within the trial court's sound discretion. (Id. at p. 790.) Given the history of continuances in this case and the court's finding that the latest continuance motion was a delay tactic, the court did not abuse its discretion in denying Bernal's latest continuance motion.
Finally, Bernal claims because his new counsel was given only four days to prepare for trial, he was denied a fair trial based on ineffective assistance of counsel. As indicated above, in a claim of ineffective assistance of counsel, the burden is on Bernal to show both deficient performance by counsel and prejudice. With respect to the trial itself, Bernal cannot reasonably claim deficient performance as the jury rejected the charged offense of first degree murder and returned a voluntary manslaughter verdict. The jury also rejected the gang allegation. Regarding sentencing, we find neither deficient performance nor prejudice. The trial court used a valid sentencing criterion in imposing the upper term and the available mitigating factors were of questionable application and weight. Despite the shortened preparation time, Bernal's new counsel provided more than effective assistance of counsel.
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issues referred to by appellate counsel, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Bernal on this appeal.
DISPOSITION
The judgment is affirmed.
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HALLER, Acting P. J.
WE CONCUR:
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AARON, J.
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IRION, J.