Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, No. BF119960A, Arthur E. Wallace, Judge.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, J.
Procedural History
Appellant Juan Dedios Burboa was found guilty after a jury trial of first degree murder (count 1) and two counts of attempted murder (counts 2 & 3). (Pen. Code, § 187, § 664/187.) As to count 1, the jury found true two special-circumstance allegations, that the murder was committed during the commission of a robbery and during the commission of a kidnapping. (§ 190.2, subd. (a)(17)(A) & (B).) In addition, the jury found true three firearm enhancements. (§ 12022.53, subd. (d) [personal and intentional discharge resulting in great bodily injury or death], § 12022.5, subd. (a) [personal use], & § 12022, subd. (a)(1) [principal armed with firearm].)
All further references are to the Penal Code unless otherwise noted.
Burboa was sentenced on count 1 to an indeterminate term of life without the possibility of parole. On count 2, he was sentenced to a consecutive determinate upper term of nine years. On count 3, Burboa was sentenced to a consecutive one-third the mid-term of two years four months. In addition, on each count the court imposed a consecutive 25-years-to-life term (§ 12022.53, subd. (d)), a consecutive 10-year enhancement (§ 12022.5, subd. (a)), and a consecutive one-year enhancement (§ 12022, subd. (a)(1)). The latter enhancements were stayed pursuant to section 654. The total term was life without the possibility of parole plus 86 years 4 months.
Factual history
According to Burboa, a week before the murders, he and three others discussed the possibility of robbing drug couriers who were going to come through the area. The couriers were known to Rigoberto Casillas, one of the coconspirators, also know as “Pitiao.” At some point during the planning, another of the coconspirators, a man called “Parientito,” said he did not want to let the men go because they would become enemies and later repeated that the couriers could not be left alive.
On July 12, 2007, the day of the murder, Burboa was told that the couriers were on their way and gave them directions to his house. When the couriers arrived in their white Ford truck, Burboa and his coconspirators were armed. Casillas stayed behind, but the other three men, including Burboa, ordered the three drug couriers back into the truck. They drove to an orchard, where the couriers were ordered out and their wallets were taken. Burboa described the drug couriers as an older fat man, a tall light-skinned man, and a dark-skinned man. Parientito immediately shot the dark-skinned man, later identified as Jose Crispin, in the head. Crispin died as a result of his wounds. Burboa shot at the light-skinned man, later identified as Rafael Moreno. The older man who was later identified as Arturo Aviles, was shot by Parientito. Injured, Moreno and Aviles ran to a nearby residence and police were called. When police arrived, Moreno was covered with blood and had three gunshot wounds, one to his face, another to his hand, and the last to his chest. Aviles was shot above his right eyebrow and had an abrasion near his hairline. Moreno and Aviles required medical attention for their wounds.
After the shootings, the three coconspirators went to the home of Carlos Chavez, also known as “Congo.” Chavez allowed the men to hide the truck in his garage. The men removed what Burboa believed to be five, one-pound packages of crystal methamphetamine and some heroin (chiva) from the truck. The truck was abandoned at a rest stop near Frazier Park. Soon afterward, Burboa left for Mexico.
The investigation of the murders ultimately led police to Burboa, who initially denied any involvement, but later confessed to the crimes. The details of Burboa’s confession matched the physical evidence found by police at the scene and the wounds suffered by the victims. The truck was located in the rest stop where Burboa said it had been abandoned.
Burboa told police that he was afraid of the others because they had always been involved in bad things and that Chavez had killed someone in Mexico. He said he did not want to kill anyone, but he did not withdraw from the plan because he was afraid Parientito would do something to him.
Discussion
I. Prosecutorial misconduct
Burboa contends that the prosecutor committed misconduct when he made this argument to the jury:
“And, by the way, we’ll put this to rest real quick. The law flat out says gunshot wounds are great bodily injury. Anything more than an insignificant or trivial injury. Gunshot wounds are GBI.”
The prosecutor made this argument in response to the defense argument that there was no evidence that the wounds were more than insignificant or trivial. There was no objection to the prosecutor’s comments and no request for an admonition.
A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it results in such unfairness at trial that the conviction amounts to a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. (People v. Ayala (2000) 23 Cal.4th 225, 283-284.) Misstatement of the law generally is considered to be misconduct by a prosecutor. (People v. Anzalone (2006) 141 Cal.App.4th 380, 393 [prosecutor committed error when he misstated law relevant to definition of attempted murder]; People v. Pigage (2003) 112 Cal.App.4th 1359, 1369-1370 [prosecutor committed misconduct when he muddled law governing entrapment defense].)
Although a close call, the prosecutor’s remarks can be construed to suggest that gunshot wounds are, as a matter of law, a category of injuries falling within the statutory definition of “great bodily harm.” This is an incorrect statement of the law. There is no generic category of injury that qualifies as great bodily injury as a matter of law, without a determination of the quality of that injury. (People v. Nava (1989) 207 Cal.App.3d 1490, 1497.) Whether great bodily injury occurred is a question of fact for the jury. (People v. Le (2006) 137 Cal.App.4th 54, 58-59.) Under these circumstances, however, in order to preserve a claim of misconduct for appeal, a defendant must object to the alleged misstatement of law and seek an admonition. Failure to do so forfeits the challenge on appeal. (People v. Ayala, supra, 23 Cal.4th at p. 284.) Burboa has failed to preserve his challenge.
Burboa raises two additional challenges in the hopes of breathing life into his claim. The first we reject summarily. An objection would not have been futile. (People v. Wright (1990) 52 Cal.3d 367, 433 [no need to make futile objection].) There is ample case authority to support the premise that misstatements of the law by the prosecutor are correctable with a proper admonishment from the court, and this case poses no exception to the general rule. (See People v. Combs (2004) 34 Cal.4th 821, 854 [failure to object to prosecutor’s misstatement of law forfeits issue on appeal because misstatements can be cured by admonition].) There is nothing about the statement here that could not have been disregarded by the jury had it been instructed to do so.
Burboa’s second claim is that he was denied effective assistance of counsel when counsel failed to object to the prosecutor’s misstatement. Where there is a claim of ineffective assistance of counsel, the defendant must show that (1) counsel failed to act in a manner to be expected of a reasonably competent attorney, and (2) it is reasonably probable that a more favorable result would have been obtained absent counsel’s failings. (People v. Lewis (1990) 50 Cal.3d 262, 288.) Prejudice must be demonstrated. (People v. Williams (1988) 44 Cal.3d 883, 937.) When a defendant cannot establish that it is reasonably probable a more favorable result would have been obtained absent counsel’s failings, it is unnecessary to first consider whether counsel’s performance was deficient. (People v. Welch (1999) 20 Cal.4th 701, 751.)
When there has been a claim of prosecutorial misconduct based on remarks to the jury, in order to show prejudice, a defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. (People v. Gurule (2002) 28 Cal.4th 557, 627.) Burboa cannot do so. The jury properly was instructed that it was to determine whether Burboa had personally and intentionally inflicted great bodily injury. The instructions and the arguments of both counsel put the issue squarely in the hands of the jury, in spite of the prosecutor’s isolated misstatement.
The jury was also told that the term “‘great bodily injury’” means “a significant or substantial physical injury.” (§ 12022.7, subd. (f).) The jury correctly was instructed that minor, trivial, or moderate injuries are not great bodily injury. (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.) Additionally, the jury was told that if anything said by the attorneys conflicted with the instructions given, the jury was to follow the law as given by the court. We presume that the jury understood and followed the instructions given in the absence of evidence to the contrary. (People v. Hinton (2006) 37 Cal.4th 839, 871.) Nothing in the record suggests the jury misunderstood the instructions or misapplied the law. (People v. Pigage, supra, 112 Cal.App.4th at pp. 1369-1370.)
Further, although there may be some factual circumstances where a gunshot wound does not amount to great bodily injury, for example, a superficial graze without pain or disfigurement, the evidence presented in this case was that Moreno had been shot three times. He had extensive bleeding from his face, hand, and chest. He had holes in his skin. The jury saw pictures of the wounds. Moreno reported significant pain and was taken to the hospital for treatment. Given this evidence, it is highly unlikely the jury would have concluded that the injuries suffered by Moreno were trivial, insignificant, or moderate in quality. The lack of a permanent or long-lasting injury does not preclude a finding of great bodily injury. (People v. Mixon (1990) 225 Cal.App.3d 1471, 1489.) A “significant or substantial physical injury” does not have to meet any particular standard for severity or duration. It need only be a substantial injury beyond that injury inherent in the offense itself. (People v. Escobar (1992) 3 Cal.4th 740, 746-747, 750.)
For these reasons, under any theory or standard of review, the comments of the prosecutor did not affect the fairness or outcome of the trial. (People v. Ayala, supra, 23 Cal.4th at pp. 283-284 [in misconduct cases, question is whether there is reasonable likelihood jury construed or applied complained-of remarks in objectionable fashion]; People v. Welch, supra, 20 Cal.4th at p. 751 [when defendant cannot establish reasonable probability that more favorable result would have been obtained absent counsel’s failings, claim of ineffective assistance of counsel fails].) Since there is no prejudice, Burboa cannot prevail on his ineffective-assistance-of-counsel claim.
II. Marsden motion
Burboa contends the trial court erred when it denied his pretrial request for new appointed counsel. He claims the trial court limited the Marsden hearing to a determination of whether counsel was ineffective and refused to consider whether there were other grounds for substitution.
People v. Marsden (1970) 2 Cal.3d 118, 123.
Under Marsden, when a defendant in some manner moves to discharge current counsel, the trial court must permit the defendant to articulate his dissatisfaction, must question counsel if the defendant’s assertions have raised a question about counsel’s effectiveness, and must allow counsel to respond. In addition, the trial court must make a sufficient record for review. (People v. Mendez (2008) 161 Cal.App.4th 1362, 1368; see also People v. Eastman (2007) 146 Cal.App.4th 688, 695.) The court should not appoint new counsel without a proper showing, i.e., whenever a defendant can establish that appointed counsel is not providing adequate representation or that the relationship between counsel and client has deteriorated to the point that ineffective representation is likely to result. (People v. Roldan (2005) 35 Cal.4th 646, 681; People v. Smith (1993) 6 Cal.4th 684, 696.) Whether the proper showing has been made lies within the trial court’s discretion, which will not be overturned on appeal absent a clear abuse of that discretion. (People v. Smith, supra, at pp. 695-696.)
The record shows that the trial court opened the hearing by telling Burboa:
“In order for the Court to grant your motion, you must establish or convince the Court that Mr. Terry and/or the Public Defender’s office has represented you in a way that could constitute incompetence; that they failed to do something they should have. In the alternative, they have done something that has been against your best interest as far as this case is concerned. [¶] What is it you want to tell the Court at this time to convince it that it should relieve the public defender?”
Although this opening comment does not specifically ask whether there are irreconcilable differences between Burboa and his attorney, the comments did not restrict Burboa in any way. The court focuses on the adequacy of representation because, as we have stated, this is the focus of a Marsden hearing.
The court also invited Burboa to raise anything that he thought counsel had done that would be against Burboa’s best interest. The court continued the discussion with a number of inquiries, all open-ended and all seeking to understand the nature of Burboa’s complaints. Burboa offered the court names of witnesses who could vouch for his innocence, but he could not explain how those witnesses could testify about Burboa’s connection to the charges.
Burboa claimed he had told counsel he had not caused the death in this case and expressed disappointment with the nature of the offers coming from the district attorney’s office (25 years), something counsel did not control. Burboa told the court, “I’ve explained everything to [counsel] about all of my involvement in this situation.” When asked if there was anything else Burboa wanted to tell the court, Burboa stated, “Well, all I can say is it seems that he hasn’t helped me.” Burboa’s complaints expressed a vague dissatisfaction with the way things were looking for him, but he never identified any specific problem with his relationship with counsel or a breakdown in the attorney-client relationship.
Burboa’s primary complaint was that the public defender had not been able to negotiate a better deal and that the law found him culpable in the murder, even though he had not pulled the trigger himself. A full reading of the hearing transcript convinces us that Burboa was not restricted with respect to the nature of his complaints. He was allowed to express his concerns and the trial court correctly concluded that his complaint was insufficient to relieve the public defender and to require appointment of new counsel. There is no Marsden error.
III. IAC claim
At trial, the jury heard the entire transcript of the police interview of Burboa and his confession. The interviewing detective told Burboa that the surviving victim had identified Burboa from a photo as one of the perpetrators. The detective also told Burboa, “I have your … wife in jail” and “she told me everything.” Burboa contends (1) he was denied effective assistance of counsel when his attorney failed to either request that these two statements be redacted from the interview presented to the jury, or (2) to request a limiting instruction telling the jury they could not consider these two statements for the truth of the matter asserted.
To reiterate, Burboa must show that counsel failed to act in a manner to be expected of a reasonably competent attorney, and that it is reasonably probable a more favorable result would have been obtained absent counsel’s failings. (People v. Lewis, supra, 50 Cal.3d at p. 288.) When a defendant cannot establish the second prong of this test, it is unnecessary to first consider whether counsel’s performance was deficient. (People v. Welch, supra, 20 Cal.4th at p. 751.)
Even if we assume the statements are objectionable, we conclude there is no prejudice. (See Crawford v. Washington (2004) 541 U.S. 36 [out-of-court statements by witness who does not testify at trial are inadmissible under Sixth Amendment].) Considering the detective’s statements in context, whether true or not, they are easily understood to be enticements to tell the truth. Although Burboa at first denied any involvement in the crimes, the detective, by confronting Burboa with these two statements, was trying to convince Burboa the police already had information connecting him to the crime. The impact of these two statements was limited. No further evidence was presented about identification, no detail was provided about the wife’s statements, and the prosecutor did not emphasize or rely upon these statements at trial. The evidence of guilt is strong. The case rested on Burboa’s detailed accurate confession and the corroborating physical evidence. This included the location of the crime, the people involved, the guns that were used, the location of the truck at the rest stop, and the location of the drugs in Chavez’s garage.
At trial, Burboa’s defense was that he participated in the crime under duress because he was afraid that if he objected to the killings, his family would be in danger. Although Burboa claims on appeal that he confessed to protect his wife who had been arrested and was innocent, this claim does not offer a defense to the crime and was not framed as a defense at trial. There was no evidence at trial and no assertion on appeal that Burboa’s wife was the actual perpetrator of the crimes or that the police believed she was the perpetrator. Given the corroborated detail of Burboa’s confession, it is unlikely the jury would have disregarded it even had they not heard the two statements Burboa now claims were wrongly admitted. For these reasons, we are convinced beyond a reasonable doubt that the outcome would not have been more favorable to Burboa even had the jury been given a limiting instruction or had the interview been redacted to omit these two statements. (Chapman v. California (1967) 386 U.S. 18.) Burboa’s ineffective-assistance-of-counsel claim fails.
IV. Sentencing issues
A. Presentence time credits
Burboa contends and the Attorney General concedes that the trial court erred in failing to award presentence time credits. (People v. Taylor (2004) 119 Cal.App.4th 628, 646-647 [defendant entitled to actual time-served credits under § 2900.5].) We agree. The failure to award presentence custody credits for actual time served is an unauthorized sentence subject to correction on appeal. (People v. Taylor, supra, at p. 647.)
B. Parole-revocation restitution fine
Burboa contends that, although the clerk’s minute order and the abstract of judgment impose a parole-revocation fine, the trial court did not impose the fine and it would be error to do so because the fine is only authorized when the sentence includes a period of parole. (§ 1202.45; People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1185; People v. Jenkins (2006) 140 Cal.App.4th 805, 819.) The reporter’s transcript of the sentencing hearing does not show that the court imposed a parole-revocation fine, though it did impose a restitution fine under section 1202.4, subdivision (b). The clerk’s transcript and the abstract of judgment, however, indicate that a $200 parole-revocation fine was imposed under section 1202.45.
Burboa contends that the issue is governed by the decision in Oganesyan, which held that the trial court did not err when it declined to impose a parole-revocation fine. (People v. Oganesyan, supra, 70 Cal.App.4th at pp. 1185-1186.) The defendant in Oganesyan was sentenced to life without the possibility of parole (LWOP) for first degree murder with special circumstances and, on a separate count, an indeterminate term of 25 years to life for second degree murder, plus a four-year firearm enhancement. The court found that, because the defendant’s sentence did not allow for a period of parole, it was not necessary to order the fine. The court reasoned, using principles of statutory interpretation, that the purpose of the fine is to recoup the costs resulting from the revocation of parole, and the chances of recouping these costs would be “extremely rare for a prisoner serving sentences one of which prohibits parole and another from which the defendant could ultimately be paroled .…” (Id. at p. 1184.)
The Attorney General disagrees and argues that the controlling authority is People v. Brasure (2008) 42 Cal.4th 1037, 1075-1076, which held that, where the defendant is sentenced to death for first degree murder with special circumstances, and on remaining counts to an aggregate determinate term of two years eight months, the parole revocation fine was not only authorized but mandated. The court in Brasure does not expressly overrule or disapprove Oganesyan, although it rejected the underpinnings of its holding. Instead, it distinguishes the decision in Oganesyan as follows:
“People v. Oganesyan …, upon which defendant relies, is distinguishable as involving no determinate term of imprisonment imposed under section 1170, but rather a sentence of life without the possibility of parole for first degree special circumstance murder and an indeterminate life sentence for second degree murder. (Oganesyan, at p. 1181.) As in Oganesyan, to be sure, defendant here is unlikely ever to serve any part of the parole period on his determinate sentence. Nonetheless, such a period was included in his determinate sentence by law and carried with it, also by law, a suspended parole revocation restitution fine. Defendant is in no way prejudiced by assessment of the fine, which will become payable only if he actually does begin serving a period of parole and his parole is revoked.” (People v. Brasure, supra, 42 Cal.4th at p. 1075.)
Burboa counters that, because Brasure merely distinguishes Oganesyan and does not disapprove it, Brasure applies only where there are separate wholly determinate terms, and that any time multiple indeterminate terms are stacked onto an LWOP term, Oganesyan applies. Oganesyan is the older of the two cases, decided by a sister appellate court. Brasure is a recent pronouncement of our state Supreme Court.
Although neither Oganesyan nor Brasure involve the same sentences as those imposed here, the analysis in Oganesyan is seriously undermined by the court’s holding in Brasure. We feel compelled to follow Brasure and conclude that a parole-revocation fine is mandated on counts 2 and 3, even though the sentence imposed in count 1 makes it highly unlikely a period of parole will ever be served. Although the sentences imposed on counts 2 and 3 include an indeterminate enhancement of 25 years to life, the sentences, whether classified as determinate or indeterminate, carry with them a possibility of a period of parole should anything happen to the sentence imposed on count 1. The sentences on counts 2 and 3 were imposed pursuant to section 1170, unlike the indeterminate sentences in Oganesyan. Under these circumstances, we conclude this case is more closely aligned to the facts and rationale in Brasure.
We acknowledge that there was a four-year enhancement imposed in Oganesyan, but the base sentence was not imposed pursuant to section 1170—it was an indeterminate 25-years-to-life sentence. Just the opposite is true in this case.
C. Indeterminate and determinate terms
Burboa contends that the abstract needs correction because it fails to note both the indeterminate and determinate terms imposed. The Attorney General again concedes error and we agree that the judgment does not accurately reflect the sentence pronounced by the trial court. In this case there were consecutive determinate terms imposed on counts 2 and 3, and the clerk should have prepared both CR-292 and CR-290.1 forms, recording the determinate and indeterminate sentences. We have authority to order that the abstract be corrected. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The judgment of conviction is affirmed. The case is remanded to the trial court with directions (1) to award actual-time presentence credits; (2) to prepare a corrected abstract of judgment showing the custody credits awarded and to accurately reflect the indeterminate as well as determinate terms; and (3) to send the corrected abstract of judgment to the appropriate authorities.
WE CONCUR: Vartabedian, Acting P.J., Hill, J.