Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF023106. Rodney L. Walker, Judge.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf, and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
McKinster, J.
After the trial court granted his Penal Code section 1118.1 motion and dismissed three counts of attempted murder, six criminal street gang enhancements, and two great bodily injury allegations, a jury found Michael Bowling (hereafter defendant) guilty of three counts of attempted manslaughter, three counts of assault with a firearm, and made true findings on two great bodily injury allegations and a personal use of a firearm allegation. Defendant later admitted the allegations that he had served three prior terms in prison, and also had previously been convicted of one prior serious felony and one strike. The trial court sentenced defendant to serve a total term of 33 years eight months in prison.
All further statutory references are to the Penal Code unless indicated otherwise.
In this appeal, defendant contends he was denied the effective assistance of counsel because his trial attorney did not move to strike the gang evidence after the trial court dismissed the gang enhancements. Defendant also claims the trial court violated defendant’s right to a jury trial because the trial court failed to instruct the jury on the burden and standard of proof pertinent to defendant’s claim of self-defense and defense of others. Finally, defendant contends, and the Attorney General concedes, that the trial court erred when it imposed a full-term great bodily injury enhancement on a subordinate determinate term sentence.
We conclude, as we explain below, that the Attorney General’s concession on the sentencing issue is appropriate and therefore we will modify defendant’s sentence accordingly. Defendant’s other issues lack merit. Therefore, we will affirm the judgment as modified in all other respects.
FACTS
The facts are not in dispute. The only issue at trial was the identity of the person who fired shots at a group of people leaving a high school graduation party in the early morning hours of May 14, 2005. The graduate, Virgil Meakins, hosted the party on the evening of May 13, 2005, at the home of his mother. Around 1:00 a.m., as the party was breaking up, Osbert Grey and several other people including defendant, attempted to join the festivities. Grey pushed Meakins’s sister as she tried to keep the group from gaining entrance. Several of the invited guests took offense; one of them, a boy referred to by the nickname Foolish, attacked Grey and beat him unconscious. Foolish and his brother then dragged Grey into the middle of the street where Foolish stomped on Grey’s head twice. When Meakins told him to stop, Foolish left Grey in the middle of the street and then got involved in one of the many other fights that were taking place in the street that night.
Meakins was trying to get his family in the house when he saw a group of people carry Grey from the street and leave him on the sidewalk. Meakins also saw defendant talk with a male, who then ran to a nearby car, and when he returned to defendant, withdrew something from the waistband of his pants which he handed to defendant. Meakins then saw defendant walk toward a car in which several people were attempting to drive away. After a few steps, defendant fired a gun at the vehicle. Defendant fired a total of 10 shots, and hit three people: Damion Salter, Ranesha Hicks, and Steven Goines. Meakins identified defendant as the shooter at an in-field show up, and then again from a photo lineup, and finally in court during trial.
Damion Salter was running down the street when he was hit in the ankle by a bullet. Salter did not see the shooter and had never met defendant. Ranesha Hicks was hit in the thigh by a bullet as she was getting into a car. She did not know defendant. A bullet hit Steven Goines in the back of his calf.
Goines testified for the defense that he watched defendant as he approached a group of people, and defendant was not the shooter.
After firing the shots, defendant put Grey in a car and drove off. A deputy sheriff pulled defendant over and the deputy called for an ambulance after he saw Grey unconscious in the back seat of the car. While waiting for help, defendant paced and yelled profanities.
Detective Robert Kwan testified in pertinent part that he told defendant the results of a gunshot residue test of defendant’s hands was positive even though at the time he made the statement the detective did not have the actual test results. At the police station, defendant told his girlfriend that the test “came back positive,” but he did not know how that could have happened because he had scrubbed his hands and urinated on them. Unbeknownst to defendant, that conversation was videotaped. The videotape was played during trial, and the jury was provided with a transcript of the audio recording.
DISCUSSION
We address defendant’s claims according to the order they are set out in his opening brief.
1.
INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
As previously noted, defendant contends he was denied his Sixth Amendment right to the effective assistance of counsel because after the trial court granted defendant’s section 1118.1 motion and dismissed the gang enhancements, his trial attorney did not move to strike the gang evidence that had been introduced during the prosecution’s case-in-chief. In order to establish a claim of ineffective assistance of counsel, defendant must “demonstrate (1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result. [Citations.] A ‘reasonable probability’ is one that is enough to undermine confidence in the outcome. [Citations.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing, among other cases, Strickland v. Washington (1984) 466 U.S. 668.)
The gang evidence at issue in this case consists of the testimony of Daniel Ponder, a Riverside County Deputy Sheriff assigned to the county regional gang task force, who testified in pertinent part that defendant is a member of the Neighborhood Pimp Mob, which is a criminal street gang in the north section of the City of Perris that was started by members of a Compton-area Crip gang who “had migrated into Riverside County.” The deputy based his testimony on law enforcement contacts with defendant in both 2004 and 2006 in which defendant admitted his gang membership. The deputy testified that Osbert Grey is also a self-admitted member of the Neighborhood Pimp Mob. Grey uses Swift and OJ as his gang monikers. Deputy Ponder also expressed the opinion that defendant’s act of shooting people at the party was done to avenge the attack on Osbert Grey. According to the deputy, someone at the party reportedly heard someone yell “Neighborhood Crip.”
During the videotaped conversation between defendant and his girlfriend defendant expressed regret over the decisions he had made in his life and then said, “I should a just hopped in the car and left instead of trying to get swift.” Presumably “swift” is a reference to Osbert Grey.
In arguing trial counsel’s performance was deficient, defendant acknowledges that the gang evidence was relevant to show motive, and that the trial court also instructed the jury that the evidence could be considered only for that limited purpose. In defendant’s view the relevance is “tangential” because defendant’s motive in firing the gun was obvious—“his friend Osbert Grey had been beaten to an unconscious pulp by the other partygoers.” The evidence is also “highly tangential” according to defendant because the gang evidence was cumulative to common experience, namely that a young man might react violently in response to seeing his friend beaten to a pulp. In other words, defendant contends trial counsel should have objected and moved to strike the gang evidence under Evidence Code section 352 because it was cumulative, and in any event the probative value of that evidence was substantially outweighed by its potential for prejudice.
In order to show that trial counsel’s performance was deficient, defendant must show that the trial court would have sustained an objection under Evidence Code section 352 and as a result would have stricken the gang evidence. Trial counsel’s failure to make a futile objection does not constitute deficient performance. (People v. Diaz (1992) 3 Cal.4th 495, 562.) Defendant has not made the necessary showing. Instead he asserts, “There is no question that a motion to strike the gang evidence from the jurors’ consideration would have been granted after the trial court dismissed the gang allegations.” We are not so sanguine and under the circumstances of this case must conclude that defense counsel’s failure to make the motion did not constitute deficient performance. Accordingly, we must further conclude that defendant has not met his burden to demonstrate ineffective assistance of counsel.
2.
DUE PROCESS CLAIM
Defendant contends the trial court gave inadequate jury instructions on the burden of proof and standard of proof on the issue of self-defense as it relates to voluntary manslaughter, and as a result violated defendant’s due process right to have a jury resolve all disputed factual issues. We conclude, for reasons we now explain, that the instructions viewed as a whole clearly conveyed the pertinent principles to the jury.
We note at the outset that during the discussion of jury instructions, defense counsel asked the trial court to give an instruction “something along the lines of [then CALJIC No.] 5.15, the burden of proof regarding justification or excuse... so that it indicates that the burden is on the People” even when the charge is manslaughter or assault. The trial court agreed and expressed the view that the principle is included in the jury instructions: “The burden is to prove that the attempted killing was unlawful and not justifiable. It’s in the instructions.” When defense counsel indicated that he could not find that language in the murder, attempted murder, or manslaughter instructions, the trial court responded that the language was in the self-defense instructions but then assured defense counsel that if the trial court could not find the language in the agreed-upon instructions, the trial court would make sure to add it. Before actually instructing the jury, the trial court informed defense counsel that the language in the jury instructions “[is] not exactly the language that you wanted. But it’s that the assault be both unlawful and justified [sic]. If you read carefully, you’ll find it. It doesn’t make specific reference to the People’s burden. But it’s in there. And it’s enough to satisfy, I think, your purposes.” The trial court then asked if defense counsel had “[a]nything else,” and defense counsel said, “No.”
The trial court’s instructions in this case told the jury that, “Attempted voluntary manslaughter is described as follows: Every person who unlawfully attempts without malice aforethought to kill another human being is guilty of the crime of attempted voluntary manslaughter. And this is a violation of Penal Code Sections 664 and 192(a) of the Penal Code. This is a crime charged as a felony here. [¶] Voluntary manslaughter is the unlawful killing of a human being without malice aforethought. There is no malice aforethought if the attempted killing occurred upon a sudden quarrel or heat of passion or in the actual but unreasonable belief in the necessity to defend oneself or another person against imminent peril to life or great bodily injury. [¶] In order to prove this crime, each of the following elements must be proved: First, a direct but ineffectual act was done by one person towards killing another human being; and that person had the specific intent to kill the other person; and, three, the actions taken to kill were unlawful.” (Italics added.) The trial court further instructed that, “An attempt to kill is lawful if done in lawful self-defense or defense of others.” The trial court also instructed in connection with the assault charges that, “A willful application of physical force upon the person of another is not unlawful when done in lawful self-defense or defense of others. [¶] The People have the burden to prove that the application of physical force was not in lawful self-defense or defense of others. If you have a reasonable doubt that the application of physical force was lawful, you must find the defendant not guilty.”
In addition to the above quoted instructions, the trial court gave CALJIC No. 2.90 on the presumption of innocence and reasonable doubt, in general, and CALJIC No. 2.91 on the prosecution’s burden to prove guilt beyond a reasonable doubt: “The burden is on the People to prove beyond a reasonable doubt that the defendant is the person who committed the crime with which he’s charged. If after considering the circumstances of the identification and any other evidence in this case you have a reasonable doubt whether the defendant was the person who committed the crime, you must give the defendant the benefit of the doubt and find him not guilty.”
Jury instructions must be viewed as a whole and not in isolation in order to determine whether there is a reasonable likelihood the jury understood the instructions in a manner that violated defendant’s rights. (See People v. Davison (1995) 32 Cal.App.4th 206, 212, citing People v. Warren (1988) 45 Cal.3d 471, 487, and People v. McPeters (1992) 2 Cal.4th 1148, 1191.) Although the trial court’s instruction on voluntary manslaughter did not expressly tell the jury that the prosecution has the burden to prove beyond a reasonable doubt that the killing was not in self-defense or in defense of others, viewed as a whole, the instructions conveyed that principle to the jury. The instructions in this case advised the jury that unlawfulness of the killing is an element of the crime of manslaughter, that the prosecution has the burden to prove the elements of the crimes, and that the prosecution’s burden is to prove guilt beyond a reasonable doubt. In this case it is not reasonably likely the jury understood the instructions to mean that defendant had the burden of proof on self-defense. (Estelle v. McGuire (1991) 502 U.S. 62, 72.) Accordingly, we must reject defendant’s claim of instructional error.
3.
SENTENCING CLAIM
Defendant contends, and the Attorney General concedes that the trial court incorrectly imposed a full-term great bodily injury enhancement on a consecutive subordinate determinate term sentence. In particular, the trial court identified count 1 as the principal term. In sentencing defendant on the voluntary manslaughter conviction in count 3, the trial court imposed a consecutive subordinate term of one year, i.e., one-third the middle term of three years, which the trial court doubled to two years under the three strikes law. The trial court then imposed the enhancements: a consecutive term of 16 months (one-third the middle term) on the firearm enhancement under section 12022.5, subdivision (a), and a consecutive term of three years on the great bodily injury enhancement under section 12022.7, subdivision (a). The trial court should have imposed one-third the three-year term, or one year, on the great bodily injury enhancement because the enhancement was imposed on a count for which the trial court imposed the subordinate term. (§ 1170.1, subd. (a); see also People v. Felix (2000) 22 Cal.4th 651, 655.) We will modify the sentence on count 3, accordingly.
DISPOSITION
Defendant’s sentence is modified by reducing the three-year term on the section 12022.7, subdivision (a) great bodily injury enhancement imposed on count 3 to a term of one year. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment that reflects the modification to defendant’s sentence on count 3, and to forward copies of that amended abstract to the appropriate agencies.
We concur: Hollenhorst, Acting P.J., Richli, J.