Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 152852
Pollak, J.
Defendant George Braggs appeals from a judgment convicting him of attempted murder, among other things, and sentencing him to 34 years to life in state prison. He contends that he received ineffective assistance of counsel at trial and that the court improperly limited the scope of cross-examination of a prosecution witness. We affirm the judgment.
Defendant concedes that the argument asserted in his opening brief that his sentence was improperly enhanced was resolved adversely to his position in People v. Palacios (2007) 41 Cal.4th 720. Accordingly, we do not address that issue.
Background
Defendant was charged by information with assault with a firearm (Pen. Code, § 245, subd. (a)(2)), attempted murder (§§ 187, subd. (a), 664) and possession of a firearm by a felon (§ 12021, subd. (a)(1)). The information alleged that in the commission of the assault defendant personally used a firearm (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)) and personally inflicted great bodily injury (§ 12022.7, subds. (a), (b)). As to the attempted murder charge, the information alleged that defendant personally and intentionally discharged a firearm and caused great bodily injury. (§§ 12022.5, subd. (a)(1), 12022.7, subd. (a), 12022.53, subds. (b), (c), (d).) The information also alleged that defendant had previously been convicted of a felony. Prior to trial, the great bodily injury enhancement under section 12022.7, subdivision (b) was stricken and defendant stipulated to his status as a convicted felon.
All statutory references are to the Penal Code.
Evidence of the following facts was presented at trial:
Defendant and the victim, Virgil Robinson, were two of several people who sold marijuana in a particular area of west Oakland. Defendant and Robinson knew each other and had sold drugs in the same area for five years.
On November 16, 2005, at approximately 6:30 p.m., Robinson was selling marijuana in the area when his wife, Danielle White, arrived to pick him up. White testified that when she arrived, Robinson was on the corner with a group of people, including defendant. Robinson told her he would be ready to leave shortly and asked her to wait in the car. Soon thereafter she heard defendant arguing with Robinson. The argument was brief and she then saw defendant walk towards a driveway. Robinson also walked towards the driveway. White testified that she was not fixated on the two men, but she was trying to observe them through her rear-view mirror. She soon heard between six and eight rapid fire gunshots. She again looked in the rear-view mirror and saw people diving to the ground, so she crouched across the front seat of her car. When the gunshots stopped, she opened her car door and saw Robinson on the ground screaming. She started to get out of the car, but stopped when she saw defendant crossing the street. She tried to hide because she thought defendant would shoot her too if he saw her. She watched defendant get into his car and drive away.
When she reached Robinson, he was screaming and asked her to call an ambulance. When the police and ambulance arrived, she refused to tell the police what she had witnessed. At trial, she explained that a large crowd had gathered and that she did not want to be seen talking to the police. At the hospital, she asked Robinson, “[D]id George do this to you?” to which Robinson replied, “Yes” and “That bitch-ass nigga did this.” Later that evening, White repeated Robinson’s statements to the police and identified defendant in a photo lineup. At trial, White testified that she was concerned that she would be labeled a snitch but decided to testify because it was “the right thing to do.”
Robinson testified that he spent November 16 selling marijuana in west Oakland. Defendant also was in the area most of the day. As Robinson was preparing to leave, a female customer approached him and he sold her a small bag of marijuana. As he was making the sale, defendant also approached and started speaking angrily to him. Robinson waved him off, saying “whatever man.” Robinson explained that ordinarily drug dealers in that area take turns making sales. “It’s supposed to be . . . everybody out there is supposed to get a sale or two. . . . [I]t’s not going to work like every sale is going to go separately to different people. Somebody is going to get two or three sales before somebody else gets one.” At the time, however, he was not paying attention to defendant and did not know what defendant was saying to him. He was focused on trying to make another sale. Defendant left him and then reappeared from a driveway about 20 feet away with a gun. Robinson thought the gun was an AR-15 and that he had seen defendant with the same gun a few days before. Defendant pointed the gun at Robinson and began shooting. Robinson fell to the ground. Defendant got into his car and drove away. Prior to the shooting, Robinson had not “had any problems with the defendant” or with any other dealers in the area.
When Robinson was interviewed at the hospital he denied that he had been selling drugs and told the police he did not know who shot him. Robinson refused to cooperate with the police until January 26, 2006, when he finally identified the defendant as the person who shot him. At trial, Robinson explained that he decided to tell the police because that “was a way to resolve [his dispute with defendant] without having to resort to violence.”
Officer Huy Nguyen testified that when he took White’s statement at the hospital on the night of the shooting, she did not tell him that Robinson had been selling drugs on the corner that evening. She told him that Robinson and the defendant got into an argument after Robinson told defendant not to bother a woman who was crossing the street.
Defendant called Josh Morris as a witness. Morris testified that he also sold marijuana from the same corner with defendant and Robinson and considered both to be his friends. At the time of the shooting, Morris was about 10 to 20 feet from Robinson. Morris saw defendant running away with everyone else. Morris did not see defendant with a gun.
The jury found defendant guilty as charged and found the sentence enhancements true. The court sentenced defendant to state prison for a term of nine years on the attempted murder count plus a consecutive term of 25 years to life for the section 12022.53, subdivision (d) firearm enhancement. The court also imposed, but stayed pursuant to section 654, upper term sentences for counts 1 and 3, plus three-year and ten-year firearm enhancements under count 1. Defendant filed a timely notice of appeal.
Discussion
1. Defendant was not denied effective assistance of counsel.
On cross-examination, defense witness Josh Morris was asked, “When you and the defendant . . . were selling marijuana together for the past ten years . . . isn’t it true that you guys have, on occasion, had to arm yourselves with weapons?” Morris answered, “To be honest, yes.” When the prosecutor asked what type of guns, Morris said, “Little handguns.” Morris testified that in the past he had seen defendant carrying an automatic gun “like a .380 [caliber].” They carried the guns to protect themselves from “people coming to rob [them] and harm [them].” Morris testified that he had never seen defendant with a shotgun or AR-15 rifle.
Defendant contends that his attorney provided ineffective assistance by failing to object to this portion of Morris’s testimony. “To prevail on a claim of ineffective assistance of counsel, the defendant must show counsel’s performance fell below a standard of reasonable competence, and that prejudice resulted. [Citations.] When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citation.] Even where deficient performance appears, the conviction must be upheld unless the defendant demonstrates prejudice, i.e., 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.’ ” ’ ” (People v. Anderson (2001) 25 Cal.4th 543, 569.)
In this case we need not evaluate whether an objection to the prosecutor’s questions would have been well taken or whether counsel was derelict in failing to object, because it is clear that defendant was not prejudiced by Morris’s answers. Prior to Morris’s testimony, White had testified that she had heard that guns were stashed in the back of the driveway, and Robinson had testified that he had seen defendant four or five days earlier hiding the gun that was later used to shoot him. Morris’s testimony concerning defendant’s prior possession of guns was not mentioned by the prosecutor in closing argument and was merely cumulative of the testimony of White and Robinson. More importantly, defendant’s access to a gun was neither disputed nor particularly significant to the case as it was tried. The defense argued simply that Robinson and White were not credible witnesses and that the prosecution had failed to carry its burden of proving the offenses. According to the defense attorney, the prosecutor was “[a]sking for the conviction of a man on the testimony of a drug dealer, who lies to the police and the D.A., and there’s not a single piece of corroborative evidence . . . .” It is not reasonably probable that the jury would have reached a different verdict in the absence of Morris’s disputed testimony.
2. The trial court did not abuse its discretion by limiting defendant’s cross- examination of White.
The Sixth Amendment Confrontation Clause guarantees “the right of an accused in a criminal prosecution ‘to be confronted with the witnesses against him.’ ” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678 (Van Arsdall).) The fundamental purpose of this right is “to secure for the opponent the opportunity of cross-examination,” which is the “principal means by which the believability of a witness and the truth of his testimony are tested.” (Davis v. Alaska (1974) 415 U.S. 308, 315-316.) The Confrontation Clause, however, does not prohibit the court from restricting the scope of cross-examination. “[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, . . . prejudice, confusion of the issues, . . . or interrogation that is repetitive or only marginally relevant.” (Van Arsdall, supra, 475 U.S. at p. 679.) The trial court’s decision to limit or exclude evidence offered for impeachment is reviewed for abuse of discretion. (People v. Ledesma (2006) 39 Cal.4th 641, 705.) “ ‘[U]nless the defendant can show that the prohibited cross-examination would have produced “a significantly different impression of [the witness’s] credibility[,]” . . . the trial court’s exercise of its discretion . . . does not violate the [Confrontation Clause].’ ” (People v. Cornwell (2005) 37 Cal.4th 50, 95; Van Arsdall, supra, 475 U.S. at p. 680.)
Defendant contends that his rights under the Confrontation Clause were violated when the court excluded evidence that White was employed by the Alameda County Department of Social Services. He argues that “White’s employment as a county social services worker bore significantly on her credibility in view of her admissions that she aided and abetted her husband’s drug sales.” He continues, “White’s testimony . . . left the jury with a false aura of her credibility—she cast herself as a courageous witness who was testifying despite her fear of retaliation for being labeled a ‘snitch,’ and because ‘it was the right thing to do.’ In fact, she was a county employee who was not being prosecuted, despite the fact that she knowingly aided and abetted Robinson’s drug dealing. [¶] Moreover, the jury would have viewed White’s testimony in a significantly different light, had the jury known that she was cynical enough to facilitate drug dealing in the same community where she was responsible for the protection and welfare of the public.” (Fns. omitted.)
White’s credibility was impeached by her testimony that she was aware of Robinson’s illegal activities and nonetheless regularly took him to the corner on her way to work. Defendant’s attorney emphasized in closing argument that “she had gone to pick her husband up where he sells drugs on a daily basis, near Longfellow Elementary School” and that she “drops him off [and] picks him up like he has a real job.” Additional testimony regarding the identity of White’s employer was marginally relevant at best. Nor is there any basis in the record for the suggestion that White was receiving some form of leniency in exchange for her testimony. The Attorney General states without citation to the record that “[t]he Oakland city police and prosecutor thought that Robinson and White had received enough punishment because of the physical injuries that Robinson sustained and the emotional injuries that they both sustained.” The basis for this assertion is unclear but, in any event, there was no showing that White was testifying to avoid prosecution or that she was not prosecuted because of her employment. Indeed, there is no evidence that anyone ever contemplated charging White with a crime, much less what that crime might have been. In short, the court did not unreasonably restrict the cross-examination, and the exclusion of evidence concerning White’s employment was not prejudicial.
Finally, contrary to defendant’s assertion, we perceive no cumulative error in the court’s rulings.
Disposition
The judgment is affirmed.
We concur: McGuiness, P. J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.