Opinion
G057842
12-14-2020
THE PEOPLE, Plaintiff and Respondent, v. RODNEY LEE CARTER, Defendant and Appellant.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, and Kristine A. Gutierrez, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16WF0119) OPINION Appeal from a judgment of the Superior Court of Orange County, Maria D. Hernandez, Judge. Affirmed. Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, and Kristine A. Gutierrez, Deputy Attorney General, for Plaintiff and Respondent.
This appeal started out as a standard Wende appeal in which defense counsel declared he was unable to find any arguable issues to raise on behalf of appellant. (See People v. Wende (1979) 25 Cal.3d 436 (Wende).) However, after appellant brought it up in his supplemental brief, we invited the parties to brief the following issue: Should the matter be remanded to permit the trial court to exercise its discretion as to whether appellant's firearm enhancements should be stricken in the interest of justice? Having considered the parties' briefing, and having reviewed the record as required under Wende, we answer that question in the negative and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On December 31, 2015, Cherokee Wallace was driving in Anaheim with her boyfriend Keith Livingston when appellant started tailgating them in his car for no apparent reason. Wallace tried to evade appellant, but he pulled alongside her car, lowered his window and flashed a semiautomatic handgun. Then he pointed the gun toward Wallace's car and yelled out that he was not "fucking playing." To prove it, appellant fired a shot into the roadway, near Wallace's car. After that, Wallace managed to lose appellant in traffic, but neither she nor Livingston reported the incident to the police.
A week later, Alex Herrera had an even more harrowing encounter with appellant while driving in Los Alamitos. Herrera had just turned onto Katella Avenue when appellant pulled alongside him and rolled down his window. Like Wallace and Livingston, Herrera had no prior contact with appellant and no idea what he was up to. He watched with great trepidation as appellant pulled out a black handgun and fired a shot into the passenger side of his car. Following the shooting, Herrera continued driving to a nearby military base, where he worked as a police officer, and reported the incident to authorities.
The next week, Wallace and Livingston happened to spot appellant in the parking lot of a shopping center, not far from where they had encountered him before. While appellant was sitting in his car, Livingston approached his vehicle on foot to get his license number. He also called 911 and reported appellant as the person who had shot at him two weeks earlier. Seeing Livingston, appellant exited his car and asked him what he was doing. Livingston dodged the question and ducked into a nearby store. Then Garden Grove Police Officer Danny Mihalik arrived on the scene and contacted appellant near his car.
During his encounter with Mihalik, appellant was agitated and upset. Against Mihalik's repeated demands, he tried to access his car multiple times, and eventually, Mihalik had to use pepper spray to effectuate his arrest. By then, other officers had arrived on the scene. They looked inside appellant's car and discovered appellant's four-year-old daughter in the back seat wearing a backpack. Upon removing the child from the vehicle, they searched the backpack and found a loaded semiautomatic handgun.
As it turned out, the gun was not registered to appellant, but it did contain his DNA. A firearms expert for the prosecution test-fired the gun and compared the spent bullets to the bullet that was recovered from Herrera's car. Although the expert was unable to declare a conclusive match between the bullets, meaning he couldn't tell for sure if the bullet from Herrera's car was actually fired from appellant's gun, he did testify the two sets of bullets shared many of the same characteristics.
Appellant was charged with a multitude of crimes. At trial, he testified he had nothing to do with the subject shootings. He also denied being uncooperative when the police confronted him and took him into custody. Although appellant admitted knowing about the gun in the backpack, he testified the backpack was tucked into the rear area of his car, outside his daughter's reach. He had no idea how she ended up with it.
The jury struggled to reach a verdict; it convicted appellant of carrying a loaded unregistered firearm in public, but it deadlocked on all of the remaining charges, and the trial court declared a mistrial on those counts.
The matter was then retried, and this time around, appellant did not fare as well. The jury convicted him of two additional counts of carrying a loaded unregistered firearm in public, three counts of assault with a semiautomatic firearm, and one count each of carrying a concealed firearm in a vehicle, shooting at an occupied vehicle, child endangerment and resisting arrest. The jury also found true allegations appellant personally used a firearm during the assaults. (Pen. Code, § 12022.5, subd. (a); all further statutory references are to the Penal Code.)
Appellant's maximum prison exposure for his crimes was over 30 years, and the prosecution was seeking a minimum term of 22 years, given the serious nature of his offenses. However, seeing this was appellant's first serious brush with the law, the trial court sentenced him to 14 years and 8 months in prison. Sixty-four months of that term was attributable to two of the firearm enhancements. Appellant also received an additional four-year term on the third firearm enhancement the court ran concurrently to his primary sentence.
Appellant appealed, and we appointed counsel to represent him. Counsel filed a Wende brief which set forth the facts of the case. (See Wende, supra, 25 Cal.3d 436.) Counsel did not argue against appellant, but advised the court no issues were found to argue on his behalf. Appellant was given 30 days to file written argument on his own behalf. He filed a supplemental brief raising six arguments. In argument number five, he asserted the trial court erred by failing to consider whether to strike the firearm enhancements in the interest of justice pursuant to Senate Bill No. 620 (SB 620).
We solicited supplemental briefing from the parties on that issue. Appellant's attorney maintains the matter must be remanded because the trial court was unaware it had the discretion to strike the firearm enhancements under SB 620. However, for the reasons explained below, we disagree. We also conclude appellant's five other arguments lack merit and that the record is devoid of any additional arguable issues.
DISCUSSION
The Firearm Enhancements
As noted above, the jury found true allegations that, in committing the charged assaults, appellant personally used a firearm within the meaning of section 12022.5, subdivision (a). As amended by SB 620, that section gives the trial court discretion to strike a firearm enhancement in the interest of justice pursuant to section 1385. (§ 12022.5, subd. (c).) However, the trial judge did not allude to this discretion in imposing sentence on the firearm enhancements. In fact, at no point during the sentencing hearing did the judge mention SB 620 or the prospect of striking the enhancements in the interest of justice. But, contrary to appellant's contention, that does not mean the judge was unaware of her authority to do so.
SB 620 became effective on January 1, 2018, and appellant was not sentenced until nearly a year and a half later, in late May of 2019. Thus, the trial judge had plenty of time to get up to speed on SB 620, and we presume she did so by the time of appellant's sentencing hearing. (See People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 398 ["a trial court is presumed to have been aware of and followed the applicable law."]; People v. Weddington (2016) 246 Cal.App.4th 468, 492 ["we presume that the trial court followed established law and thus properly exercised its discretion in sentencing a criminal defendant"].)
In addition, defense counsel's sentencing brief informed the judge she had discretion to strike appellant's firearm enhancements pursuant to SB 620. And, at the outset of the sentencing hearing, the judge announced she had read and considered the parties' sentencing briefs. Under these circumstances, it is reasonable to conclude the judge was aware of her striking authority under SB 620. Indeed, because there is nothing in the record showing otherwise, we must adopt that conclusion. (People v. Lee (2017) 16 Cal.App.5th 861, 867; People v. Bolian (2014) 231 Cal.App.4th 1415, 1421.) We thus reject appellant's claim of error respecting the trial court's failure to strike his firearm enhancements.
Appellant's Additional Arguments
Appellant's remaining arguments are equally meritless. He contends his double jeopardy rights were violated when he was retried on the charges the jury deadlocked on during his first trial, and his attorney was ineffective for not moving to dismiss the charges on that basis. However, it is well established the constitutional prohibition against double jeopardy does not bar retrial following a hung jury. (People v. Fields (1996) 13 Cal.4th 289, 299-300.) Therefore, appellant's second trial did not violate double jeopardy principles, and his attorney was not ineffective for failing to raise this issue below.
In attacking his convictions, appellant also points out the prosecution's firearms expert was unable to say for certain that appellant's gun (i.e., the gun found in his daughter's backpack) fired the shot that hit Herrera's car. Given this fact, and because there was no gunshot residue found inside his car, appellant contends there was insufficient evidence to prove he was the person who fired on the victims.
However, Wallace and Livingston both identified appellant in court as the person who shot at them from his car. And although Herrera was unable to identify appellant at trial, he was able to identify his distinctive car and his gun. Furthermore, the firearms expert testified the bullet recovered from Herrera's car had many of the same characteristics as the bullets he test-fired from appellant's gun, which suggested the recovered bullet was fired from appellant's gun. Taken as a whole, the evidence was sufficient to support appellant's gun-related convictions. (See generally People v. Young (2005) 34 Cal.4th 1149, 1181 [the testimony of a single witness is generally sufficient to support a criminal conviction].)
In a related argument, appellant contends his attorney was ineffective for failing to call an expert witness who could testify that appellant's gun was never actually fired from his car. But it is purely speculative as to whether any such expert exists. For all we know, defense counsel did attempt to find an expert witness on this topic but came up empty-handed. Because the record is silent on this issue, we cannot say defense counsel was derelict for failing to call an expert witness to support appellant's testimony that he never fired the gun from his car. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268.)
Even if she was, it is debatable whether such testimony would have carried the day in light of the victims' testimony to the contrary. (See CALCRIM No. 332 [the jury is not required to accept the opinion of an expert as true or correct].) Therefore, appellant's claim also fails for lack of prejudice. (Strickland v. Washington (1984) 466 U.S. 668 [a defendant alleging ineffective assistance of counsel must not only prove deficient performance but also resulting prejudice by showing it is reasonably probable he would have obtained a more favorable result at trial absent counsel's alleged errors].)
Next, appellant asserts the trial court erred by denying his request for probation. Although he was presumptively ineligible for probation due to his firearm enhancements (§ 1203, subd. (e)(2)), appellant maintains probation was justified because, before this case arose, he had a minimal criminal record, and he suffers from a cognitive impairment due to anxiety and depression. However, the trial court considered these factors in making its sentencing decision. The court simply did not believe they warranted a grant of probation given the dangerousness of appellant's conduct. Indeed, the record shows appellant created a serious risk of harm to his victims (and the public at large) by repeatedly firing his gun on the roadway and by allowing his four-year-old daughter access to a loaded firearm. In light of all the relevant circumstances, the trial court did not abuse its discretion in refusing to grant appellant probation.
Lastly, appellant contends his appellate attorney was ineffective for filing a Wende brief and not raising any arguments on his behalf. However, when counsel is unable to identify any arguable issue on appeal, he or she has an ethical obligation to forego making frivolous claims and comply with the procedures outlined in Wende, which have been approved by the United States Supreme Court. (Smith v. Robbins (2000) 528 U.S. 259.) Thus, appellate counsel did not render ineffective assistance by filing a Wende brief. Having examined the entire record, we are satisfied appellate counsel has fulfilled his responsibilities under Wende and that no additional issues exist to warrant further briefing or discussion. (Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment is affirmed.
BEDSWORTH, J. WE CONCUR: O'LEARY, P. J. MOORE, J.