Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Los Angeles County No. YA054685 Superior Court, Eric C. Taylor, Judge. Affirmed.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ZELON, J.
This case is before us for a second time. Darryl T. Burnside, a known gang member, fired three shots at Jorge Bueno’s face, killing him, before leaving with Bueno’s bicycle.
A jury convicted Darryl T. Burnside of the first-degree murder (Pen. Code, § 187, subd. (a)) (count 1) and second-degree robbery (§ 211) (count 2) of Jorge Bueno, and found Burnside committed the offenses to benefit a criminal street gang (§ 186.22, subd. (b)(1)) and personally discharged a firearm proximately causing great bodily injury and death to Bueno (§ 12022.53, subd. (d)).
Statutory references are to the Penal Code.
The trial court sentenced Burnside to indeterminate terms of 25 years to life for first degree murder (count 1) and 25 years to life for the firearm-use enhancement, plus determinate terms of three years for second degree robbery (count 2), and 10 years for the criminal street gang enhancement.
Among Burnside’s contentions in his first appeal was the trial court erred in failing to state its reasons for imposing consecutive sentences on counts 1 and 2. We agreed, and affirmed the judgment but remanded the matter for resentencing on count 2.
On remand, the trial court resentenced Burnside to three years for second degree robbery (count 2) plus 10 years for the criminal street gang enhancement. The court ordered this 13-year determinate sentence was to be served concurrently with the indeterminate 25 years to life terms imposed for first degree murder (count 1) and the firearm-use enhancement.
Burnside timely filed a notice of appeal and we appointed counsel to represent him on this second appeal. After examination of the record counsel filed an “Opening Brief” in which no issues were raised. On February 20, 2008, we advised Burnside he had 30 days in which to personally submit any contentions or issues he wished us to consider. On July 28, 2008, we granted Burnside’s motion to recall the remitter issued July 3, 2008, to vacate the opinion filed April 28, 2008, and to allow him to file a supplemental brief within 30 days of our order.
On August 19, 2008, Burnside filed a handwritten supplemental brief in which he challenged his conviction on several grounds. Although none of Burnside’s claims present an arguable issue, pursuant to People v. Kelly (2006) 40 Cal.4th 106, 110, 120-121, we identify Burnside’s contentions and explain the reasons they fail.
Ineffective Assistance of Counsel Claims
Burnside claims defense counsel rendered constitutionally ineffective assistance in failing to subpoena certain telephone records or to object to the “perjured testimony” of a police officer who witnessed the shooting and identified Burnside as the shooter at trial. However, the record on appeal is simply insufficient to overcome the presumption defense counsel performed effectively and his actions were a matter of sound trial strategy. (Strickland v. Washington (1984) 466 U.S. 668, 686, 689-690 [104 S.Ct. 2052, 80 L.Ed.2d 674]; People v. Prieto (2003) 30 Cal.4th 226, 261.) Similarly, the record provides no support for Burnside’s assertion defense counsel provided ineffective assistance by not seeking to present a diminished capacity defense. This assertion is more appropriately decided in a habeas corpus proceeding where all relevant facts can be developed. (People v. Avena (1996) 13 Cal.4th 394, 419.)
Insufficient Evidence Claim
Burnside claims, as he did in his prior appeal, the evidence was insufficient to support the street gang enhancement because it showed he acted alone, and any benefit accrued solely to him, rather than to any gang. We considered and rejected this contention as unmeritorious in the prior appeal. (People v. Burnside (Feb. 27, 2007, B188512) [nonpub. opn.].)
For the first time, Burnside also claims the gang expert’s testimony was inadmissible under Evidence Code section 801. Assuming this issue has been preserved for appellate review, Burnside could have disputed the admissibility of the gang expert’s testimony in his prior appeal when he challenged the sufficiency of the evidence to support the street gang enhancement finding. Because he failed to do so, the issue has been forfeited. (People v. Senior (1995) 33 Cal.App.4th 531, 538 [direct appellate review of an issue is forfeited in a subsequent appeal if defendant could have, but failed to raise the issue in an earlier appeal]; see also People v. Murphy (2001) 88 Cal.App.4th 392, 395-396 [same].)
We have examined the entire record and are satisfied Burnside’s attorney has fully complied with the responsibilities of counsel and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly, supra, 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436, 441.)
The judgment is affirmed.
We concur: PERLUSS, P. J., WOODS, J.