Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. NA080423, Gary J. Ferrari, Judge.
Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Idan Ivry, Deputy Attorneys General, for Plaintiff and Respondent.
CHANEY, J.
Librado Clemena appeals from a judgment entered after a jury convicted him of one count of willful, deliberate and premeditated attempted murder, one count of assault with a deadly weapon and two counts of attempted robbery. The jury also found gang, hate crime, and deadly weapon use enhancement allegations to be true. The trial court sentenced Clemena to 31 years and four months in prison.
Clemena contends that the trial court committed reversible error (1) in admitting into evidence a razor blade and a photograph of a razor blade based on the prosecution’s argument that this was the attempted murder weapon; (2) in instructing the jury on the hate crime enhancement; (3) in declining to instruct the jury on the absence of flight as evidence of innocence; and (4) in imposing great bodily injury enhancements on multiple counts based on the same act, and the only act, that caused great bodily injury. He also contends that the prosecutor committed reversible misconduct and that there was insufficient evidence supporting the hate crime enhancements.
We agree with Clemena that, pursuant to Penal Code section 654, the trial court should have stayed the great bodily injury enhancement imposed on count 3 for attempted robbery because it was based on the same act as the great bodily injury enhancement imposed on the attempted murder count involving the same victim. We also conclude that the trial court improperly imposed a great bodily injury enhancement on count 4 for attempted robbery because the victim of that crime was not injured and the enhancement was not charged in the information or found true by the jury. We reject Clemena’s other claims of reversible error and insufficiency of the evidence.
Statutory references are to the Penal unless otherwise indicated.
BACKGROUND
In the evening on December 3, 2008, Jamie Seang drove his friends, Robert Eir and Virakdara (Rocky) In, to a liquor store in Long Beach, located near the intersection of Cherry Avenue and Anaheim. Eir and In went inside the store to buy snacks while Seang waited outside in the car.
At or around the time Eir and In purchased their snacks, two men who appeared to be Mexican entered the store, one of whom was later identified as Clemena. Clemena and his associate approached Eir and In. Clemena made a motion, indicating that he had a gun under his sweatshirt. Clemena told Eir and In to empty their pockets and give him their money. According to Eir, Clemena “claimed he was from Eastside Longos and he said, ‘Fuck Asians.’” Eir understood that Clemena was claiming his gang. In recalled Clemena and his associate saying, “F Nips’ and ‘I hate the race.’” Clemena’s associate asked In to empty his pockets. Clemena also asked Eir and In if they wanted to die that night. Eir and In did not give any of their property to Clemena or his associate.
Clemena’s associate went outside and approached Seang, who was still sitting in his car. He asked Seang for his property. He told Seang that he was from “ESL, ” which Seang understood meant he was a member of the Eastside Longos gang. When Seang refused to turn over his cell phone, Clemena’s associate told Seang that his friends inside the store were going to die. Eir and In moved around Clemena, who was trying to block their way as they exited the store. As Eir approached the car, he saw Clemena’s associate asking Seang to turn over his property.
Eir tried to get into the car, but Clemena’s associate was leaning on the door, preventing him from opening it. Clemena approached Eir. Eir managed to pull open the car door. As he was getting into the car, he “felt something go across [his] neck” and “slit [his] throat.” He looked at Clemena and saw Clemena put his hand inside his sweatshirt pocket. Eir believed that Clemena was putting something away. Eir did not see the weapon that cut his throat. He looked in a mirror and saw that his “neck... was wide open.” The wound started to bleed.
In and Seang initially thought that Clemena had punched Eir, while Eir was struggling with Clemena to get into the car. In saw Clemena swing his closed fist toward Eir’s neck. When Clemena “pulled his hand out [In saw] something gleaming in the light but [he] wasn’t sure what it was.”
Seang drove Eir to the hospital. Eir stayed at the hospital until dawn, and received about 10 stitches. While at the hospital, he was interviewed by police. He told the officer that Clemena was wearing a “gray sweater, ” which he later clarified meant a sweatshirt, and “dark jeans.” Eir also told the officer that Clemena had “a tattoo on his head and he was bald.” Eir did not know what the tattoo depicted. At trial, Eir testified that Clemena was wearing glasses on the night of the attack. Eir stated that he did not remember that Clemena was wearing glasses until sometime after he was released from the hospital. At the preliminary hearing, Eir testified that he did not recall whether Clemena was wearing glasses.
At about 11:36 p.m. on December 3, 2008, Long Beach Police Officer Victor Hafkenscheid and his partner Officer Hernandez heard a call about this incident and responded. They were searching the area on foot. At about 12:01 a.m., Officer Hernandez looked down an alley and saw a group of people, at least one of whom was wearing a gray sweatshirt. The officers started running down the alley toward the potential suspects. Officer Hafkenscheid called for a patrol car to drive down the alley. When the black-and-white patrol car arrived in the alley with its lights on, the group of people scattered, some running east and some running west. The officers ran west.
As Officers Hafkenscheid and Hernandez came out of the alley, and walked between two houses onto Cherry Avenue, they saw a man—Clemena—wearing a gray sweatshirt who was sitting on the front porch of a house next to a woman. The house was located at 1100 Cherry Avenue, about half a block from the liquor store where the incident occurred. Officers detained Clemena at about 12:05 a.m. Officer Hafkenscheid did not know whether Clemena had been part of the group of people he had seen in the alley.
Long Beach Police Officer Thomas Cochran searched the area where Clemena was sitting. He found a razor blade on a driveway adjacent to the house where Clemena was detained. Clemena was sitting to the right of the razor blade.
The police took In from the hospital to identify Clemena, who was in custody. The police did not conduct a lineup. They only had In look at Clemena. When In saw Clemena, he stated, “‘Yeah, that’s him. I’m positive.’” He did not “have any hesitation” in making the identification. Clemena looked like “exactly the same guy” who had tried to rob him. In was able to identify Clemena based on his clothing, the tattoos on his head, and his glasses. In did not know what was depicted in the tattoos.
After In returned to the hospital, officers told Seang “that they were going to take [him] to go see the person who did the crime.” Seang identified Clemena based on his clothes and the tattoo on his head. Seang recalled that Clemena was wearing a white t-shirt, not a sweatshirt. Seang could not describe the tattoo on Clemena’s head. At trial, Seang recalled that Clemena was wearing glasses on the night of the incident.
The first time Eir was asked to identify Clemena was at the preliminary hearing. The prosecutor showed Eir a picture of Clemena right before the preliminary hearing, during a meeting at which a detective, In and Seang were present. The first time Eir was interviewed by the prosecutor alone, without In and Seang, was about a month before trial.
At trial, Eir, In and Seang all identified Clemena as the person who committed the charged offenses.
Long Beach Police Officer Chris Zamora testified at trial as a gang expert. He stated that Clemena was a “self-admitted” member of the Eastside Longos criminal street gang. Clemena had tattoos on various body parts, which showed his association with Eastside Longos. Clemena had “ESL, ” the acronym for Eastside Longos, tattooed on his neck. He had “HA” tattooed on the top of his head. This is a reference to his gang’s territory in the “Harbor Area.” Clemena also had the Raiders logo tattooed on his head. Officer Zamora testified that many Eastside Longos members wear gray clothing, shave their heads and have tattoos on their heads, but “[f]ar fewer” wear glasses.
Officer Zamora also explained that Eastside Longos had a rivalry with Asian gangs, and were “hostile towards Asian people” in general. Even Asian people who were not gang-affiliated were subject to “attack[]” by Eastside Longos. Officer Zamora opined that Clemena committed these crimes for the benefit of Eastside Longos.
The jury convicted Clemena of the willful, deliberate and premeditated attempted murder of Eir (count 1), assault with a deadly weapon on Eir (count 2), attempted robbery of Eir (count 3) and attempted robbery of In (count 4). On counts 1, 3 and 4, the jury found that Clemena used a deadly and dangerous weapon within the meaning of section 12022, subdivision (b). On counts 1, 2 and 3, the jury found that Clemena inflicted great bodily injury on Eir within the meaning of section 12022.7, subdivision (a). The jury found that all of the crimes constitute hate crimes under section 422.75, subdivision (b), and were committed for the benefit of a criminal street gang.
The trial court sentenced Clemena to 31 years and four months in prison: on count 1 for attempted murder, an indeterminate term of 15 years to life, plus three years for the great bodily injury enhancement, four years for the hate crime enhancement, one year for the deadly weapon enhancement and two years for the two priors under section 667.5, subdivision (b); and on count 4 for attempted robbery of In, a consecutive term of eight months (one-third the mid-term), plus one year for the great bodily injury enhancement, four months for the deadly weapon enhancement, one year for the hate crime enhancement and three years and four months for the gang enhancement. On count 3 for attempted robbery of Eir, the court sentenced Clemena to a concurrent term of two years (the mid-term), plus three years for the great bodily injury enhancement, one year for the deadly weapon enhancement and three years the hate crime enhancement. The court stayed the sentence on count 2 for assault with a deadly weapon on Eir.
Clemena admitted these priors.
As discussed below, the imposition of the great bodily injury enhancement on count 4 was improper. Rocky In was not injured during the attempted robbery and the enhancement was not charged in the information or found true by the jury. Accordingly we order the great bodily injury enhancement on count 4 reversed and stricken.
The People point out that the abstract of judgment incorrectly indicates that the trial court imposed a consecutive eight-month term (one-third the mid-term) for the attempted robbery of Eir. As set forth in the reporter’s transcript, the trial court imposed a concurrent term of two-years (the mid-term) on this offense. The minute order from the April 6, 2010 sentencing hearing correctly reflects that the trial court imposed a concurrent term on count 3, but incorrectly states that the term was eight months. We order these clerical errors corrected as set forth below in the disposition.
DISCUSSION
I. Admission of Razor Blade
Clemena contends that the trial court violated his federal constitutional rights to due process and a fair trial when it admitted into evidence the razor blade (People’s Exhibit No. 15) and a photograph of the razor blade (People’s Exhibit No. 16). Clemena argues that the razor blade and the photograph have no relevance because “[t]here was no evidence presented that linked the razor blade to [Clemena] or to the crime.” We disagree.
We have reviewed People’s Exhibit No. 16, and all other exhibits referenced in this opinion, with the exception of the actual razor blade.
At trial, Clemena objected to the admission of this evidence, arguing that the evidence did not show that the “razor blade is connected to this case.”
To be admissible, evidence must be relevant. (Evid. Code, § 350 [“No evidence is admissible except relevant evidence”].) Under Evidence Code section 210, “‘[r]elevant evidence’” is evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” “The trial court has broad latitude in determining relevance. We review such a ruling for abuse of discretion.” (People v. Howard (2010) 51 Cal.4th 15, 31-32 [gun “found, concealed in shrubbery, near the crime scene and the apartments where defendant was seen on the night of the murder” was “plainly relevant to establish defendant’s participation in the attempted armed robbery”].)
Evidence presented at trial demonstrated that, as Eir struggled with Clemena and his accomplice, trying to get into the car, Eir “felt something go across [his] neck” and “slit [his] throat.” He did not see the weapon that Clemena used, but he could feel that it was something sharp.
Rocky In saw Clemena make a motion like he was preparing to punch Eir with a closed fist. Then In observed “something gleaming in the light, ” after Clemena “pulled his hand out” from Eir’s neck. In could not describe the weapon either.
When Eir looked at Clemena after the attack, it appeared to Eir that Clemena was putting something inside his sweatshirt pocket. Eir looked in the mirror and saw that his neck “was wide open” and there was “white stuff on [his] neck.” Then he put his hand on his neck and felt “blood coming out.” Photographs, which were admitted into evidence, show the wound on Eir’s neck as it appeared soon after the attack (People’s Exhibit Nos. 1, 2 & 3). Eir testified that he required about 10 stitches. The prosecutor suggested that, at the time of trial, the scar on Eir’s neck (across his throat) was about six inches long. Clemena did not dispute this point.
Police detained Clemena about half a block away from the scene. He was on the front steps of a house. An officer spotted a razor blade on a driveway adjacent to the house. Photographs, which were admitted into evidence, show the location where the officer found the razor blade, in relation to the place where Clemena was sitting (People’s Exhibit Nos. 14 & 15). The officer testified that when he picked up the razor blade to put it in an evidence envelope, there “appeared to be what [he] thought might be blood” on the “sharp edge.” He did not note this finding of the appearance of blood in his report.
At trial, the prosecutor argued that the razor blade admitted into evidence was the attempted murder weapon. The prosecution did not present any evidence of blood or fingerprint analysis conducted on the razor blade.
The trial court did not abuse its discretion in admitting into evidence the razor blade and the photograph of the razor blade. There was sufficient evidence linking the razor blade with Clemena and the crime. The weapon was a sharp, gleaming object that was used to slit Eir’s throat. A reasonable inference from In’s testimony is that the weapon was small enough to fit inside Clemena’s fist as he swung his arm toward Eir’s neck. When Clemena was detained after the crime, there was a razor blade on the ground near where he was sitting. The razor blade and photograph are relevant. It was for the jury to decide whether the razor blade found where Clemena was detained was the weapon Clemena used to slit Eir’s throat. The absence of blood and fingerprint analysis on the razor blade does not mean that the razor blade admitted into evidence in this case could not have been the attempted murder weapon, as Clemena appears to suggest.
We reiterate that in this case the prosecution presented what it believed was the attempted murder weapon. Cases Clemena relies on in support of his argument that the trial court erred in admitting this evidence are distinguishable. For example, in Alcala v. Woodford (9th Cir. 2003) 334 F.3d 862, 886-887, the prosecution attempted to show that the defendant was linked to a carving knife found near the victim’s body by presenting “two complete, unused sets of kitchen knives that police seized” from the defendant’s shared residence, which were the same brand as the alleged murder weapon. The Ninth Circuit concluded that the knife sets admitted into evidence were irrelevant because they did not tend to prove that the defendant was connected to the murder weapon. (Id. at p. 887.) Here, in contrast, the razor blade was found on the ground near Clemena, not long after the crimes were committed, and after police had chased possible suspects out of a nearby alley. Its use as the weapon was supported by other evidence.
In People v. McCall (1935) 10 Cal.App.2d 503, 505, the prosecution presented, and the trial court admitted into evidence, several items found in the victim’s car, which the prosecutor argued could have been the weapon the defendant used to injure the victim, causing his death—“an automobile crank which was found in the car between the front and rear seats, a wrench from the pocket of the rear seat, a wooden hammer handle that lay on top of the seat springs..., and a tire iron or jack handle which was under the springs.” The defendant testified that he had been a passenger in the victim’s car, and had argued with the victim and punched him with his fists, on the evening that the victim sustained the skull injury which caused his death. (Id. at pp. 504-505.) The appellate court concluded that “it was highly prejudicial to the appellant to exhibit to the jury all of the implements that were found in the car of the deceased, upon the sole ground that if any one of them had been used, it might have caused the injury which resulted in death.” (Id. at p. 508.) In this case, the prosecution presented the only weapon it believed was the attempted murder weapon, based on evidence connecting the razor blade to the crime and Clemena to the razor blade. As discussed above, a reasonable inference from the evidence is that the weapon used to slice open Eir’s neck was small enough to be concealed in Clemena’s fist and later inside his sweatshirt pocket. Police found a razor blade a short distance away from Clemena when they detained him. The officer who found it believed there was something on it which could have been blood.
The trial court did not abuse its discretion in concluding that the razor blade and the photograph of the razor blade constituted relevant evidence, and admitting them.
II. Claims of Prosecutorial Misconduct
Clemena contends that “the prosecutor committed multiple instances of prosecutorial misconduct during argument that deprived [Clemena] of his constitutional right to a fair trial.” We reject all of Clemena’s claims of prosecutorial misconduct.
“A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction 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. Furthermore, and particularly pertinent here, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (People v. Morales (2001) 25 Cal.4th 34, 44; People v. Cash (2002) 28 Cal.4th 703, 733.)
“As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion-and on the same ground-the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]” (People v. Samayoa (1997) 15 Cal.4th 795, 841.) “A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal if ‘“an admonition would not have cured the harm caused by the misconduct.”’ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 820.)
In his opening brief, Clemena asserted that the prosecutor misstated the evidence during closing argument by indicating (1) that there was a link between the razor blade, Clemena and the crime, and (2) that witnesses had described the tattoos on Clemena’s head. He also argued that the prosecutor misstated the law on premeditation during closing argument. We reject each of Clemena’s claims of prosecutorial misconduct.
A. Argument regarding the razor blade
Clemena contends that the prosecutor committed misconduct during her argument when she made the following statements about the razor blade: (1) “Well, we know that the defendant used a razor to slice open the neck of Robert Eir”; (2) “We know the defendant deliberately swung the razor towards the victim’s neck”; and (3) “He swung the razor at Robert Eir and when he swung that razor blade, it was likely that he could injure Robert.” Clemena argues that these statements constitute misconduct because “[t]here was no evidence a razor blade was used and no evidence that it was the razor blade found near [Clemena].”
Clemena did not object to these statements about the razor blade. We do not find that he has forfeited his claim of prosecutorial misconduct, however, because he did make an earlier objection to the admission of the razor blade and the photograph of the razor blade. He based his earlier objection on the same ground—that there was no evidence connecting the razor blade with this case.
The prosecutor’s statements about the razor blade do not constitute misconduct. Based on the evidence discussed at length in the previous section of this opinion, it was proper for the prosecutor to argue that the razor blade found near Clemena when he was detained was the weapon Clemena used to slit Eir’s throat.
B. Argument regarding eyewitness testimony about Clemena’s tattoos
Clemena contends that the prosecutor also committed misconduct during her argument when she made the following statements: (1) “We also know about the defendant and what he looks like and we know this is significant because everyone who sees the defendant that night describes these very distinctive markings, these tattoos. The tattoos on the back of his head, the tattoos on the front of his head”; and (2) “defendant has tattoos on his head and every one [sic] described the tattoos on his head.” Clemena argues that these statements constitute misconduct because, although Eir, In and Seang all saw and testified about the tattoos on Clemena’s head, none was able to describe those tattoos.
Clemena forfeited this claim of prosecutorial misconduct by failing to object below. Nonetheless we address the merits because Clemena raises an ineffective assistance of counsel claim based on his counsel’s failure to object.
“‘To establish ineffective assistance of counsel, a [defendant] must demonstrate that (1) counsel’s representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation subjected the [defendant] to prejudice, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the [defendant]. [Citations.] “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” [Citation.]’ [Citation.]” (In re Jones (1996) 13 Cal.4th 552, 561.)
Eir, In and Seang all recalled that Clemena had at least one tattoo on his head, and that was one factor they each used to describe Clemena and identify him. Clemena is correct, however, when he states that none of these witnesses was able to explain what was depicted in Clemena’s tattoos (“ESL, ” “HA, ” the Raiders logo). The prosecutor would have more accurately characterized the evidence if she had stated that the witnesses “saw” tattoos rather than “described” them.
The prosecutor’s statements about the tattoos did not render Clemena’s trial fundamentally unfair. To the extent they were “deceptive” under state law standards—an overreaching attempt to bolster the strength of the eyewitness identifications—we do not find that Clemena’s trial counsel rendered ineffective assistance by not objecting to the statements. It is doubtful that an admonition by the trial court would have been helpful to the jury. The court most likely would have instructed the jury to rely on its own recollection of the evidence on this point. Instead, Clemena’s counsel argued in his own closing argument that although the witnesses based their identifications of Clemena on his “clothing and tattooed head, ” these witnesses “don’t know what any of the tattoos look like.” Given his attempt to cure any mischaracterization, counsel’s representation was not deficient and it is not reasonably probable that Clemena would have obtained a more favorable result if his counsel had objected to the prosecutor’s statements.
C. Argument regarding willful, deliberate and premeditation
Clemena contends that the prosecutor committed further misconduct when she argued to the jury about the meaning of willful, deliberate and premeditation. She stated: “The second instruction that you’re going to receive -- I’m sorry, this is [the] willful and premeditated portion. This is kind of tough, it’s a little difficult to wrap your head around because you not only have to decide what the defendant intended to do but whether or not he premeditated it, whether or not he thought about it ahead of time. And the instruction is not all that helpful. It says, ‘intentional or deliberate means it’s arrived or determined as a result of careful consideration.’
“The law says it doesn’t have to be a specific amount of time. You don’t have to plan this out for weeks or even an hour, it can be arrived at within a few moments. And this is difficult because you think about it, you think, ‘Well, how can anyone decide to kill someone in such a short amount of time, such an important decision?’
“I’m going to give you an example from everyday life. Something you guys do probably everyday that affects life or death. And I always use driving a car because it’s kind of an easy one, everyone does it.
“You’re driving down the 405 freeway, you’re late to court. You have to serve jury service, you’re in that no. 1 lane, you’ve got at least two lanes to get over and you see your exit come up about a mile ahead.
“Now, to get to that exit, you’re going to have to switch a few lanes and switch at least one. Think about what you do when you switch lanes? You look in your blind spot to see if a car is there, you might look up to the front in the lane you’re about to get into to make sure the car in front isn’t stopped or slowed down.
“You look in the far lane to see if there is a car about to jump in the lane you are trying to merge into. You look at the car in front to make sure it doesn’t stop and slam on its break [sic] and cause an accident. You do all of these things to decide whether or not you can or cannot make that lane switch.
“Think about the consequences if you mess that up. Right. High speed car collision can be dangerous and deadly for anyone involved but you do this everyday. You do it without even thinking about it, you make that decision within a moment and then you do it.
“The same thing is happening here. The defendant can make this decision, make a decision to commit some -- a crime like this in just a moment. So we know again that the defendant came onto something. You don’t bring a weapon like that -- you don’t carry a weapon around unless you intend to do something violent with it. It’s not something that everybody sticks in their pocket or purse when they go in the store....”
Clemena forfeited this claim of prosecutorial misconduct by failing to object below. Again we address the merits because Clemena raises an ineffective assistance of counsel claim based on his counsel’s failure to object.
We find no misconduct in this portion of the argument. Taken as a whole, the prosecutor’s argument about switching lanes was an example of “careful thought” and “reflection” (CALJIC No. 8.67)—looking in the blind spot, checking the conditions in three, separate lanes to determine whether it is safe to switch. We do not find that her comment, “You do it without even thinking about it, ” rendered the trial fundamentally unfair or constituted a deceptive or reprehensible method. Nor do we find “a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (People v. Morales, supra, 25 Cal.4th at p. 44.) The prosecutor was arguing that a person can carefully consider a course of action in an instant.
Even assuming that this argument constituted misconduct, Clemena’s ineffective assistance of counsel claim fails because there was no resulting prejudice. It is not reasonably probable that there would have been a more favorable outcome if Clemena’s counsel had objected. Clemena does not dispute that the jury was properly instructed on this issue. Moreover, there was strong evidence tending to show Clemena’s willful, deliberate and premeditated conduct. After Clemena attempted to rob Eir and In, he followed them outside the store. As he and his associate prevented Eir from getting into the car, Clemena took a concealed weapon and slit Eir’s throat. This evidence shows a “cold, calculated judgment and decision” to kill that was the result of a “pre-existing reflection.” (CALJIC No. 8.67.)
None of the above-referenced statements from the prosecutor’s closing argument, by itself or in combination with any of the others, constitutes prejudicial misconduct.
D. Additional statements Clemena raises in his reply brief
Responding to the People’s argument that Clemena had not shown “a constant barrage” of purportedly improper statements (see People v. Hill, supra, 17 Cal.4th at p. 821), Clemena listed four additional statements in his reply brief that he “omitted” from his opening brief. He did not object to any of these statements below, so he has forfeited his claims of prosecutorial misconduct. And it is not clear whether he is claiming that his trial counsel rendered ineffective assistance in failing to object to these statements, which he references for the first time in his reply brief. We briefly address these additional statements.
Clemena contends that it was improper for the prosecutor to argue: “We know that our defendant was found about a half a block away. He was found presumably walking down the alley with some grouping of friends.” It was not improper for the prosecutor to argue that Clemena was probably among the group of people in the alley, who scattered when the officers gave chase. Officers spotted Clemena as they came out of the alley.
Clemena also contends that it was improper for the prosecutor to argue: “And we know that we found the defendant sitting on the stoop and we saw a razor blade within ten feet of that location.” A photograph showing the distance between the razor blade and Clemena was shown to the jury and admitted into evidence (People’s Exhibit No. 14). The prosecutor’s estimation of this distance does not constitute prosecutorial misconduct.
The next statement Clemena references from the prosecutor’s closing argument is: “We know he walked right up to these Asians – these kids, these boys in the store....” Clemena argues there is no evidence that the victims are Asian. As discussed in more detail in the next section of this opinion, there is sufficient evidence supporting the hate crime enhancement demonstrating that when Clemena approached Eir and In to rob them, he perceived them to be Asian.
Finally, Clemena cites another statement about the razor blade, and argues that the prosecutor improperly attempted to connect Clemena with the razor blade: “Again, if the defendant was far away and was swinging the razor blade around, you might say, ‘Well, you know, he really wouldn’t have had a chance to hit him.’” For reasons already discussed in this opinion, the prosecutor did not commit misconduct in arguing that the razor blade near Clemena is the weapon he used to slit Eir’s throat.
III. Hate Crime Enhancement
A. Jury instruction
Clemena contends that the trial court erred when it instructed the jury on the hate crime enhancement. We agree, but find that the error was harmless.
On counts 1, 2, 3 and 4, the information alleged, and the jury found true, a hate crime enhancement allegation under section 422.75, subdivision (b). This statutory provision provides: “Except in the case of a person punished under Section 422.7 or subdivision (a) of this section, any person who commits a felony that is a hate crime, or attempts to commit a felony that is a hate crime, and who voluntarily acted in concert with another person, either personally or by aiding and abetting another person, shall receive an additional two, three, or four years in the state prison, at the court’s discretion.”
The trial court instructed the jury with CALJIC No. 17.24.5, titled “Felony Interference with Civil Rights (Penal Code § 422.7)”, as follows: “It is also alleged that [Clemena] committed the crimes alleged in Counts 1, 2, 3 & 4 against the person of another for the purpose of intimidating or interfering with that other person’s free exercise or enjoyment of any right secured to him by the Constitution or laws of California or the United States and because of the person’s race, color, religion, ancestry, national origin, disability, gender, or sexual orientation, and:
“The crime against the person of another either includes the present ability to commit violent injury or causes actual physical injury.
“‘Because of’ means that the bias motivation must be a cause in fact of the offense, whether or not other causes also exist. When multiple concurrent motives exist, the prohibited bias must be a substantial factor in bringing about the particular result.
“In order to prove this allegation, each of the following elements must be proved: [¶] 1. A person committed the crime of ATTEMPTED MURDER, ASSAULT WITH A DEADLY WEAPON, OR ATTEMPTED ROBBERY; [¶] 2. That crime was committed against another’s person; [¶] 3. The perpetrator of that crime did so with the specific intent to intimidate or interfere with the alleged victim’s free exercise or enjoyment of any right secured to him by the Constitution or laws of California or the United States; [¶] 4. The perpetrator committed the crime because of the alleged victim’s RACE OR ETHNICITY; and [¶] 5. The perpetrator caused actual injury to the alleged victim.”
The first issue Clemena raises about this instruction is that it improperly states that the prosecutor must prove “actual injury to the alleged victim.” Clemena asserts: “This error in the instruction actually made the prosecution’s case more difficult but it illustrates the lack of care with which the court instructed the jury.” Clemena could not have been prejudiced by this misstatement of the law, which indicated that the prosecution was required to prove an element—actual injury—that it was not required to prove under section 422.75, subdivision (b). In any event, it is evident that the jury was not misled by this misstatement in that it found the hate crime enhancement to be true on count 4, attempted murder of Rocky In, a crime for which the victim did not sustain actual physical injury.
The second issue Clemena raises about this instruction is that it omits an element required under section 422.75, subdivision (b)—that the defendant “voluntarily acted in concert with another person.” As Clemena acknowledges, however, the jury’s verdicts indicate that the jury made this required finding on all counts. The jury found true that each offense “is a hate crime and that [Clemena] committed the offense voluntarily and in concert with another and others within the meaning of Penal Code section 422.75(b).” Based on the evidence, we conclude that the trial court’s error in omitting this element from the jury instruction was harmless beyond a reasonable doubt. (People v. Flood (1998) 18 Cal.4th 470, 503.) Clemena and his associate approached Eir and In inside the store and stated racial epithets and attempted to rob them. Clemena and his associate both tried to prevent Eir from getting into the car immediately before Clemena cut Eir’s neck. There are no conflicting inferences from the testimony. The only reasonable inference is that Clemena voluntarily acted in concert with his associate to commit these crimes. Clemena points out that there was a period of time when Clemena was inside the store with Eir and In, and his associate was outside the store with Seang. This does not negate the evidence establishing that Clemena acted in concert with his associate during each of the crimes for which Clemena was convicted.
The last issue Clemena raises about this instruction is that it does not define “cause in fact.” As set forth above, the instruction states, “‘Because of’ means that the bias motivation must be a cause in fact of the offense, whether or not other causes also exist. When multiple concurrent motives exist, the prohibited bias must be a substantial factor in bringing about the particular result.” Clemena contends that the trial court had a sua sponte duty to instruct the jury with CALJIC Nos. 3.40 and 3.41. We disagree.
CALJIC No. 3.40 provides in pertinent part: “The criminal law has its own particular way of defining cause. A cause of the (result of the crime) is an [act] [or] [omission] that sets in motion a chain of events that produces as a direct, natural and probable consequence of the [act] [or] [omission] the (result of the crime) and without which the (result of the crime) would not occur.”
CALJIC No. 3.41 provides in pertinent part: “There may be more than one cause of the (result of the crime). When the conduct of two or more persons contributes concurrently as a cause of the (result of the crime), the conduct of each is a cause of the (result of the crime) if that conduct was also a substantial factor contributing to the result. A cause is concurrent if it was operative at the moment of the (result of the crime) and acted with another cause to produce the (result of the crime).”
“A court has no sua sponte duty to define terms that are commonly understood by those familiar with the English language, but it does have a duty to define terms that have a technical meaning peculiar to the law.” (People v. Bland (2002) 28 Cal.4th 313, 334.) As used in section 422.75, “and as a matter of common usage, ‘because of’ means the conduct must have been caused by the prohibited bias. A cause is a condition that logically must exist for a given result or consequence to occur. (American Heritage Dict. (2d ed. 1982) p. 249.)” (In re M.S. (1995) 10 Cal.4th 698, 719, italics and footnote omitted.) The term “cause in fact, ” as used in this instruction, has no particular legal meaning giving rise to a duty to clarify it sua sponte. “‘A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.’ [Citation.]” (People v. Jennings (2010) 50 Cal.4th 616, 671.) Clemena did not request a clarifying instruction.
B. Sufficiency of evidence
Clemena contends that the hate crime enhancements are not supported by sufficient evidence because the record is devoid of evidence “as to the race, ethnicity ancestry, color, ethnic background, [or] religion... as to Mr. Eir or Mr. In.” He also argues that the evidence shows that the crimes were gang-motivated, and not motivated by bias. To assess the merits of this contention, we “review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
Section 422.55, subdivision (a), provides that “‘[h]ate crime means a criminal act committed, in whole or in part, because of one or more of the following actual or perceived characteristics of the victim: [¶]... [¶] (3) Nationality. [¶] (4) Race or ethnicity....” Thus, the fact a crime is gang-motivated does not mean that it cannot also be a hate crime. Moreover, the actual race or ethnicity of the victim is not a required element of a hate crime. A hate crime may be perpetrated based on the “perceived characteristics of the victim.” (Id.)
There is substantial evidence in the record that Clemena committed the crimes against these victims because of their race. As he attempted to rob Eir and In, he said, “Fuck Asians.” Rocky In recalled Clemena and his associate saying to him, “‘F Nips, ’ and, ‘I hate the race.’” Clemena concedes that “Nip” is a derogatory term for someone who is Japanese. The fact Clemena made these statements to Eir and In as he attempted to rob them indicates that he perceived them to be Asian. A reasonable inference from the evidence is that Clemena targeted Eir and In for these crimes because of their race. The evidence of gang-motivation does not negate racial bias as a cause of these crimes.
IV. Request for Instruction on Absence of Flight
Clemena requested that the trial court instruct the jury on “lack of flight after the crime as evidence of innocence.” He proposed a modified version of CALJIC No. 2.52. The court denied the instruction, noting that Clemena was not found at the scene after the crimes were committed. He had moved to another location before police detained him. In closing argument, Clemena argued that he did not attempt to hide after the crimes were committed. Instead, police found him “sitting ten feet from Cherry Avenue with cops all over the area looking for the perpetrator of a crime.”
Clemena’s proposed instruction states: “The flight or lack of flight after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish guilt or innocence, but is a fact which may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.”
Clemena contends that the trial court violated his due process right to a fair trial in refusing his proposed instruction. We disagree. “[T]here is no right to an instruction on the absence of flight.” (People v. Williams (1997) 55 Cal.App.4th 648, 651.) Evidence of absence of flight is often “‘of little value as tending to prove innocence because there are plausible reasons why a guilty person might also refrain from flight.’ [Citation.]” (Id. at p. 652.) Notwithstanding that, a court may exercise its “broad discretion” and “giv[e] an appropriate instruction on the absence of flight when supported by the evidence and of sufficient relevance in the context of the case.” (Ibid.)
Clemena did not remain outside the liquor store after the crimes were committed. The police found him half a block away, sitting outside on the front porch of a house. Based on this evidence, we do not find that the trial court erred in declining to instruct on absence of flight. The location where Clemena was found does not necessarily tend to prove his innocence. In any event, Clemena argued his position on this issue in closing argument, and could not have been prejudiced by lack of the proposed instruction.
V. Imposition of Multiple Great Bodily Injury Enhancements
Clemena contends that the trial court erred in imposing the great bodily injury enhancement under section 12022.7, subdivision (a), on counts 3 and 4. The People concede that the court erred in imposing this enhancement on count 4, the attempted robbery of Rocky In. In was not injured during the attempted robbery. Accordingly, there was no great bodily injury enhancement charged in the information on count 4, and the jury was not asked to make a finding of great bodily injury to In. The trial court imposed the great bodily injury enhancement on count 4 in error, and it must be reversed and stricken.
As to count 3 (attempted robbery of Robert Eir), Clemena contends that the trial court should have stayed imposition of the great bodily injury enhancement pursuant to section 654, rather than imposing a three-year concurrent term. There was one act which caused great bodily injury to Eir. The court imposed the enhancement on counts 1 (attempted murder of Eir) and 3.
Section 654 provides in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” In People v. Moringlane (1982) 127 Cal.App.3d 811, 817, the Court of Appeal held that section 654 “prohibits the imposition of multiple enhancements for the single act of inflicting great bodily injury upon one person.” The court explained: “While the imposition of three sentence enhancements for the same act of inflicting great bodily injury upon the same person may not literally be prohibited by the statutory language, the effect of section 654 has not been strictly limited to its language. It is now accepted law in this state that section 654 proscribes multiple punishment for the same act unless the act constituted a crime against several persons.” (Ibid.)
“Our Supreme Court has established that section 654 does not apply to enhancements that are based on the status of the defendant, such as an enhancement for the fact that the defendant has served a prior prison term. However, as the parties acknowledge, our Supreme Court has not reached the issue of whether section 654 applies to enhancements, like the [great bodily injury] enhancement at issue here, that are based on the circumstances of the crime committed by the defendant.” (People v. Wynn (2010) 184 Cal.App.4th 1210, 1218-1219, citing People v. Coronado (1995) 12 Cal.4th 145, 156-157, People v. Rodriguez (2009) 47 Cal.4th 501, 507, and other cases.)
We conclude that the great bodily injury enhancement falls within the scope of section 654 because “the factual basis for the enhancement is ‘an act or omission.’” (People v. Wynn, supra, 184 Cal.App.4th at p. 1220.) Clemena committed one act which caused great bodily injury to Eir. He should not be punished twice for the same act. Accordingly, we direct the trial court to modify the judgment to stay the great bodily injury enhancement on count 3, the attempted robbery of Eir.
DISPOSITION
The great bodily injury enhancement imposed on count 4 under Penal Code section 12022.7, subdivision (a), is reversed and stricken. The superior court is directed to modify the judgment to stay the great bodily injury enhancement imposed on count 3 under Penal Code section 12022.7, subdivision (a). The superior court is further directed to correct the abstract of judgment and the April 6, 2010 minute order from the sentencing hearing to reflect the concurrent two-year term imposed on count 3 for attempted robbery. In all other respects, the judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
We concur: ROTHSCHILD, Acting P. J., JOHNSON, J.