Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. LA050228, Barry A. Taylor, Judge.
Andrew Reed Flier for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Defendant Cruz Cedillo appeals from a judgment of conviction entered after a jury found him guilty of four counts of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)) and found true allegations of personal weapon use (id., § 12022.5, subd. (a)) on all counts and great bodily injury (id., § 12022.7, subd. (a)) on two counts. The trial court sentenced defendant to 24 years in state prison.
On appeal, defendant claims evidentiary error, ineffective assistance of counsel, and insufficient evidence to support his conviction. We affirm.
FACTS
Prosecution
On the night of September 25, 2005, defendant and some friends, including Rigoberto Placencia (Placencia) and Alva Zuleika Arias (Arias), went to El Tucanazo, a nightclub in the San Fernando Valley. Placencia got into a fight with someone in the restroom. Defendant and Arias told him it was time to leave. They left just before 2:00 a.m., along with about 30 other people.
Someone began yelling at Placencia, asking him if he wanted to fight. Someone hit Placencia from behind, then several people began hitting and kicking him.
Marcos Teran (Teran), Mauricio Guzman (Guzman) and Gerardo Lara (Lara) were working as armed security guards at El Tucanazo. They tried to stop the fight, threatening to use their mace if the fighting did not stop. At that point, they heard a gunshot.
After Guzman heard the gunshot, he felt something warm on his hand. He looked down and saw that his arm was bleeding. He looked around and saw defendant about 12 feet away, holding a gun.
Teran saw defendant holding a gun and Guzman grabbing his own arm. Arias, who was standing beside Teran, did not hear a gunshot but heard someone say she had been shot. She looked down and saw that she was bleeding. She grabbed Teran, who helped her back into the nightclub. At that point, his gun was still in its holster, and he did not see Guzman or Lara with a gun drawn.
Teran came back out, hand on his gun. Defendant pointed his gun at Teran and told him to take his gun out. Teran ducked behind a trash can and drew his gun. Teran told defendant to drop his gun, and he told Guzman to get down. When neither defendant nor Guzman responded, Teran fired at defendant. People scattered. Defendant moved behind his pickup truck, while Guzman went for his gun then joined Teran. Defendant shot at Teran at least three times. Teran shot back, firing a total of nine shots. Lara, who was standing by a post in the driveway, also shot at defendant.
At some point during the shooting, Placencia felt his foot get hot. He later discovered he had been shot in the foot.
Defendant got into the passenger side of his truck. As the truck was driven away, defendant continued shooting. Teran, Guzman and Lara shot at the truck as it drove away.
Los Angeles Police Officer Juan Galvan observed defendant’s truck near Roscoe Boulevard and Coldwater Canyon Boulevard. He stopped the truck. Defendant was in the front passenger seat, and two women were in the truck with him. Officer Galvan searched defendant but did not find a gun in his possession.
Officer A. J. Debellis searched the area of Roscoe Boulevard and Coldwater Canyon Boulevard for a gun. He recovered a .22 semiautomatic handgun in the dirt on Roscoe Boulevard. The gun had been fired and was empty.
Detective Martin Pinner arrived at El Tucanazo at 4:15 a.m. Detective Pinner recovered five shell casings from a .22 caliber gun. An additional .22 caliber shell casing was recovered from defendant’s truck. These shell casings came from the .22 caliber semiautomatic handgun recovered from Roscoe Boulevard.
Detective Pinner recovered 11 shell casings from Guzman’s nine millimeter Astra handgun. He recovered four shell casings from Lara’s .45 caliber Ruger handgun. He also recovered seven shell casings from Teran’s nine millimeter handgun.
Detective Lizette Makarenko interviewed Arias. Arias said she had gone to El Tucanazo with Placencia and some other friends. They had no problems in the nightclub. After leaving the nightclub, she waited outside for Placencia. Placencia, who was drunk, went to talk to some of the security guards, who were friends of his. A fight broke out, and Placencia became involved. Arias was talking to one of the security guards when the shooting occurred. She saw someone shooting toward the fight from a dark blue Ford F150 truck.
Detective Steve Castro interviewed Placencia. Placencia said he approached a man and asked why the man was staring at him. The man asked Placencia if he wanted to fight. The man struck Placencia, who was knocked out. When Placencia recovered, he heard several gunshots and had a gunshot wound to his leg.
Detective Castro then interviewed Guzman. Guzman said he saw a fight between two men, with two other men watching. Another man walked up holding a gun and said, “I’m going to kill you.” He fired the first shot. Guzman was shot, and he went to get his gun. The man with the gun continued firing while walking backward toward a pickup truck. The man got into the truck; Guzman fired at the truck, and the man fired back.
Detectives Castro and Pinner interviewed defendant. Defendant said he went to El Tucanazo with some friends. Inside the club, one of his friends had a problem with a man about the music. Once outside the club, the same man confronted and assaulted his friend. Defendant asked one of the security guards to help his friend, but the guard said the fight would end itself. Since no one would do anything, defendant went to his truck and got his gun. He went back to the security guard and again asked for help. The guard said, “Well, you brought a gun. Use it.”
Defendant told the detectives that one of the security guards fired the first shot. He approached the same security guard he had been talking to and asked him to tell the guard who fired not to shoot defendant’s friend. The security guard who had been shot—Guzman—said, “What did you bring the gun for? Now I’m shot.” Defendant responded that he had not shot him, another security guard did.
Defendant said he hid behind one of the security guards to avoid getting shot, then he returned to his truck. One of his friends began driving away. Defendant, who was in the front passenger seat, fired four or five times into the air. Defendant threw his gun from the truck as it drove away. He later discovered several gunshot holes in the truck and a flat tire. Defendant acknowledged that if the police could confirm that any of the people shot had been shot with his gun, then he probably shot them.
Defense
On September 25, 2005, defendant and Javier Covarrubias (Covarrubias) went to El Tucanazo in his truck, while Arias and Placencia went in another vehicle. Inside the nightclub, Placencia got into a fight in the restroom. When they were leaving the nightclub, someone approached Placencia from behind and hit him. About a dozen people began beating Placencia. Concerned for Placencia’s safety, defendant approached all three of the security guards and asked them for help. Guzman said he would help, but he did not do anything.
Defendant went to his truck and got his gun, which he placed in his pants under his shirt. He returned to where the fight was taking place and saw even more people beating Placencia. He was afraid for Placencia’s safety.
Someone yelled that defendant had a gun. Guzman approached defendant and told him not to take out his gun. Then Teran told defendant to take the gun out and fire it. As both defendant and Guzman approached the fighting, Teran shot at defendant. Guzman said that defendant shot him. Defendant said that it was Teran who shot him. Defendant then took out his gun and fired it into the air, hoping it would make the people stop beating Placencia. Then the security guards started shooting at defendant.
Covarrubias and two women were in defendant’s truck. Defendant threw his keys to Covarrubias and told him to drive, or they would be killed. Defendant got into the truck and Covarrubias drove away. He fired a few shots into the air, but because he was ducking down, he may have mistakenly hit someone. The security guards fired at the truck as it drove away. Defendant threw his gun out the window as they drove away.
Defendant acknowledged that in 2004, he drove in willful and wanton disregard for the safety of persons or property while fleeing from a pursuing police officer.
DISCUSSION
Defendant’s Impeachment With Prior Conduct Amounting to Commission of a Misdemeanor
Defendant contends the trial court erred in allowing him to be impeached with evidence of his conduct amounting to the commission of a misdemeanor, because the probative value of the evidence was substantially outweighed by the possibility of undue prejudice. He also asserts the trial court did not engage in the necessary weighing process before ruling the evidence admissible. We disagree.
Defendant objected to admission of evidence of his prior misdemeanor conduct on a number of grounds, including that it was more prejudicial than probative and therefore should be excluded under Evidence Code section 352. In determining whether the evidence should be admitted, the trial court noted that crimes of moral turpitude are subject to Evidence Code section 352 analysis. After counsel argued the issue of relevancy versus prejudice, the trial court ruled the conduct could be admitted.
The Supreme Court has repeatedly held that “‘the trial [court] need not expressly weigh prejudice against probative value—or even expressly state that [it] has done so.’” (People v. Lucas (1995) 12 Cal.4th 415, 448.) So long as “ [t]he record demonstrates that the trial court ‘understood and fulfilled its responsibilities under Evidence Code section 352[, n]othing more [is] required.’” (Id. at p. 449.) The record here clearly demonstrates that the trial court understood and fulfilled its responsibility under Evidence Code section 352 to weigh the probative value of the proffered evidence against its prejudicial effect; “‘[n]othing more was required.’” (Ibid.)
As to whether the trial court’s ruling was correct, in People v. Wheeler (1992) 4 Cal.4th 284, the Supreme Court held that prosecutors may use evidence showing commission of a misdemeanor, but not the misdemeanor conviction itself, to impeach the credibility of a defense witness in criminal proceedings. (Id. at pp. 288, 300.) The justices stated that the plain fact that a witness was convicted of a misdemeanor is still inadmissible under traditional hearsay rules, although a felony conviction is admissible. (Id. at p. 298.) If past criminal conduct amounting to a misdemeanor has some logical bearing upon the veracity of a witness in a criminal proceeding, however, that conduct is admissible under “Truth in Evidence” provisions of Proposition 8. (Id. at p. 299.) Even if the evidence is admissible, it still may be excluded under Evidence Code section 352 if its probative value is outweighed by the possibility its admission will be unduly prejudicial. (Wheeler, supra, at pp. 296-297.)
In 1982, the passage of Proposition 8 affected the use of prior convictions for impeachment purposes. Proposition 8 added section 28 to article I of the California Constitution.
The conduct underlying defendant’s misdemeanor conviction for operating a motor vehicle with intent to evade a pursuing peace officer in willful or wanton disregard of public safety (Veh. Code, § 2800.2) is admissible for impeachment purposes. (People v. Dewey (1996) 42 Cal.App.4th 216, 222.) The conduct involves moral turpitude because it involves not only an attempt to evade pursuing peace officers but also involves consciously placing the safety of others in jeopardy. (Ibid.) It evidences “‘a general readiness to do evil.’” (Id. at p. 221.)
Defendant argues that the evidence nonetheless should have been excluded as unduly prejudicial, in that the sole issue was his credibility, and the evidence was “designed to destroy [his] believability.” That, of course, is the whole purpose of impeachment evidence. (See People v. Wheeler, supra, 4 Cal.4th at pp. 295-296.)
For purposes of Evidence Code section 352 analysis, unduly prejudicial evidence is that which “uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues.” (People v. Yu (1983) 143 Cal.App.3d 358, 377.) Evidence of defendant’s prior conduct in evading a pursuing police officer was not so sensational or inflammatory as to evoke an emotional bias against defendant. We therefore cannot say that the trial court abused its discretion in ruling the evidence admissible. (People v. Ramirez (2006) 39 Cal.4th 398, 453.)
Defendant also argues that the prosecution’s failure to notify him in advance of its intent to impeach him with his misdemeanor conduct deprived him of the opportunity to make a knowing and intelligent decision as to whether or not to testify. In the absence of any citation to authority suggesting that this is a basis for reversing the judgment or to anything in the record indicating that defendant would not have testified in his own behalf had he known he would be impeached with his prior misdemeanor conduct, we reject his argument. (People v. Cooks (1983) 141 Cal.App.3d 224, 329; People v. Dougherty (1982) 138 Cal.App.3d 278, 282.)
Ineffective Assistance of Counsel
When a defendant raises a claim of ineffectiveness of counsel, he must establish that his “‘counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and there is a reasonable probability that, but for counsel’s unprofessional errors and/or omissions, the trial would have resulted in a more favorable outcome.’” (In re Cudjo (1999) 20 Cal.4th 673, 687; People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) “‘“The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”’” (In re Cudjo, supra, at p. 687; accord, Strickland v. Washington (1984) 466 U.S. 668, 686.)
Defendant first contends his trial counsel provided ineffective assistance in failing to make any cogent argument concerning the admission of evidence that Guzman was involved in drug dealing at El Tucanazo on the night of the shooting, and in inviting the trial court to admonish him when he mentioned drug dealing.
Prior to the examination of Guzman, the prosecution sought to exclude evidence that since the date of the shootings, Guzman had been convicted of possession for sale of a controlled substance. The basis for the prosecution’s request was the lack of a connection between the shooting and Guzman’s drug dealing.
Defense counsel argued that he should be allowed to ask Guzman whether he was under the influence of drugs at the time of the shootings. Additionally, since Guzman was a drug dealer, counsel should be “allowed to ask the question was he carrying out his business at the club. It goes to the fact that he wasn’t doing his job.”
The trial court responded that defense counsel could ask Guzman whether he was under the influence of drugs or alcohol at the time of the shootings, and whether he had been convicted of possession for sale of a controlled substance. That was “the limit of what you can go into at this time.”
During cross-examination, defense counsel asked Guzman about his conviction. Guzman responded, “Does that have anything to do with this here?” He then added that his case was closed. The court asked Guzman whether he had been convicted, and Guzman said that he had. Defense counsel then asked Guzman, “So you were working in the capacity of a drug dealer?” The prosecutor objected, and the court sustained the objection.
The trial court reminded defense counsel that it had ruled the evidence inadmissible, and the question was “out of line.” Defense counsel agreed to be admonished on the record. The trial court responded, “You’ve already been admonished. Now let’s move on.” The prosecutor requested that the court instruct the jury that the question was improper. The court said it would, and defense counsel said, “All right.” The court then instructed the jury that the question was inappropriate, the jury would be instructed later as to how it could consider Guzman’s prior conviction, “but it has nothing to do with anything that happened the night of the shooting.”
What is missing from the record is any evidence or offer of proof that Guzman was, in fact, dealing drugs on the night of the shootings, and that his drug dealing was in any way related to the shootings. (See, e.g., People v. Cooks, supra, 141 Cal.App.3d at p. 269 [evidence of victim’s drug use inadmissible where there was no suggestion or evidence that she and her killer were involved in a drug transaction at the time].) Defendant speculates that “if Guzman was selling drugs that evening he very [well] could have been shot by someone other than [defendant] as drug dealing is often associated with such violent crime.” Absent an offer of proof that this was the case, the trial court properly ruled the proffered question improper and refused to allow defense counsel to ask it. (Cf. People v. Bittaker (1989) 48 Cal.3d 1046, 1098 [prosecutorial misconduct to ask questions suggesting the existence of facts absent a belief that the facts can be proved if their existence is denied]; People v. Pitts (1990) 223 Cal.App.3d 606, 734 [prosecutorial misconduct to ask questions of witnesses for the purpose of getting the jury to consider the insinuations contained within the questions without a good faith belief in the existence of facts on which the questions are based].)
Placencia himself testified that there were no security guards in the restroom when he was initially attacked, and he did not report the incident to any of the security guards. There was no evidence connecting the security guards to any of the participants in the restroom fight or the later fight in the parking lot.
This resolves defendant’s further contention that the trial court violated his constitutional rights to confront witnesses against him and to a fair trial. “‘“As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s right to present a defense. Courts retain, moreover, a traditional and intrinsic power to exercise discretion to control admission of evidence in the interests of orderly procedure and the avoidance of prejudice.” [Citation.]’ [Citation.]” (People v. Gurule (2002) 28 Cal.4th 557, 620.) The trial court’s rulings did not deprive defendant of the opportunity to present a defense or confront witnesses against him. They merely prevented him from asking prejudicial questions which he had no basis for believing would result in admissible, relevant evidence in his favor.
Defendant has not established that defense counsel had any basis upon which to make a stronger argument in favor of allowing him to ask the question regarding drug dealing by Guzman or that, had counsel made the argument, he would have been able to ask the question and get an affirmative response or otherwise been able to offer evidence that Guzman was dealing drugs at the nightclub the night of the shootings, and his drug dealing had a bearing on the shootings. Defendant also has not established that it was error for the trial court to instruct the jury regarding counsel’s improper question. Defendant therefore has not established ineffective assistance of counsel with respect to the questioning of Guzman as to his drug dealing at El Tucanazo. (In re Cudjo, supra, 20 Cal.4th at p. 687; People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.)
Defendant also claims defense counsel incompetently attempted and failed to refresh Guzman’s memory as to where Lara was standing at the time of the shootings and in failing to call any percipient witnesses on defendant’s behalf. After Guzman testified that he did not remember where Lara was standing at the time of the shootings, defense counsel asked, “Well, would it refresh your recollection if you looked at this picture and I pointed here and say he was here? The prosecutor objected “that’s not refreshing someone’s recollection,” and the trial court agreed.
In defendant’s view, his counsel’s improper attempt at refreshing Guzman’s memory showed the jury that counsel was inexperienced, unfamiliar with the law, did not understand the case and therefore could not be trusted in putting together a defense for defendant. We disagree that one improper question during the course of a trial utterly destroyed counsel’s credibility and the defense. It is not reasonably probable that but for the improper attempt at refreshing Guzman’s memory, defendant would have been acquitted. Counsel’s failure thus did not amount to ineffective assistance of counsel. (In re Cudjo, supra, 20 Cal.4th at p. 687; People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.)
Defendant also claims that it is uncontroverted that three other individuals were with him as his truck left the area. Defendant then argues that “[d]espite the presence of these witnesses, who were available to corroborate [defendant’s] testimony, defense counsel failed to call any of those witnesses and thereby failed to establish [defendant’s] credibility and version of what truly transpired.”
The selection of which evidence to present ordinarily is a tactical decision which is left to trial counsel. (People v. Jones (1981) 123 Cal.App.3d 83, 92; People v. Haylock (1980) 113 Cal.App.3d 146, 151.) In the absence of a showing as to how a decision would have resulted in a different outcome, we will not reverse based on such a decision. (In re Avena (1996) 12 Cal.4th 694, 721; People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.)
Defendant points to nothing in the record showing that the three potential witnesses could or would have corroborated defendant’s testimony. He points to nothing in the record establishing that the decision not to call the three individuals as witnesses was not an appropriate tactical one. Accordingly, he has not established ineffective assistance of counsel. (In re Avena, supra, 12 Cal.4th 694, 721; People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.)
Sufficiency of the Evidence
Defendant “contends that there was insufficient evidence to support his conviction for assault with a deadly weapon because there was no independent evidence presented that [he] was the initial aggressor. Further, . . . there was a great deal of evidence that [defendant] acted in defense of his friend Rigoberto Placencia.”
When the sufficiency of the evidence is challenged, the question on appeal is whether the conviction is supported by substantial evidence, i.e., evidence from which a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt. (People v. Hill (1998) 17 Cal.4th 800, 848-849.) “In making this determination, we ‘“must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ [Citation.]” (People v. Rayford (1994) 9 Cal.4th 1, 23; accord, People v. Cuevas (1995) 12 Cal.4th 252, 260-261.) We also must examine the entire record, not merely “‘“isolated bits of evidence.”’” (Cuevas, supra, at p. 261.)
It is the exclusive province of the trier of fact to determine witness credibility and the truth or falsity of the facts; the court is not free to substitute its view of the evidence for that of the trier of fact. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Ceja (1993) 4 Cal.4th 1134, 1139.) The uncorroborated testimony of even one witness may provide substantial evidence, unless the testimony is physically impossible or inherently improbable. (People v. Scott (1978) 21 Cal.3d 284, 296.) Reversal is not warranted unless there is no hypothesis under which the trier of fact could have found the evidence consistent with guilt. (People v. Mobley (1999) 72 Cal.App.4th 761, 789, disapproved on another ground in People v. Trujillo (2006) 40 Cal.4th 165, 181, fn. 3.)
It is true, as defendant claims, that no one testified that he or she saw defendant fire the first shot. However, Guzman and Teran testified that they heard a shot then saw a man—whom Teran identified as defendant—with a gun. It is reasonably inferable that he was the one who fired the shot. Since we “‘“presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence”’” (People v. Rayford, supra, 9 Cal.4th at p. 23), there is evidence that defendant fired the first shot.
While there was evidence that defendant acted in defense of Placencia, there was evidence to the contrary as well. We cannot reject evidence the jury found credible in favor of evidence the jury found not to be credible. (People v. Ochoa, supra, 6 Cal.4th at p. 1206; People v. Ceja, supra, 4 Cal.4th at p. 1139.)
Viewing the evidence and reasonable inferences drawn therefrom in the light most favorable to the judgment, the evidence shows that once defendant and Placencia left El Tucanazo, someone hit Placencia from behind, then several people began hitting and kicking him. While Teran, Guzman and Lara were attempting to stop the fight, threatening to use mace but not drawing their guns, they heard a gunshot. Guzman saw that he had been shot. He looked around and saw defendant about 12 feet away, holding a gun.
Teran also saw defendant holding a gun. Arias, who was standing beside Teran, also was shot. She grabbed Teran, who helped her back into the nightclub. Only after Guzman and Arias were shot did Guzman, Teran and Lara get or draw their guns and fire at defendant, who fired back at them.
The evidence supports a conclusion that defendant fired the initial shot, and that he assaulted Guzman, Teran, Arias and Placencia. The judgment thus is supported by substantial evidence. That there is evidence from which the trier of fact could have found defendant not guilty is an insufficient basis on which to reverse the judgment. (People v. Ochoa, supra, 6 Cal.4th at p. 1206; People v. Ceja, supra, 4 Cal.4th at p. 1139.)
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, Acting P. J., VOGEL, J.