Opinion
D074181
10-04-2018
THE PEOPLE, Plaintiff and Respondent, v. TERRELL DENNIS COLBERT, Defendant and Appellant.
Suzanne G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI1402948) APPEAL from a judgment of the Superior Court of San Bernardino County, John M. Tomberlin, Judge. Affirmed and remanded for resentencing. Suzanne G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General.
Terrell Dennis Colbert appeals his jury-tried convictions for (1) attempted willful, deliberate, and premeditated murder of H.A. (Pen. Code, §§ 664, 187, subd. (a) (count 1)) and (2) possession of a firearm by a felon (§ 29800, subd. (a)(1) (count 2).) With respect to count 1, the jury found that Colbert personally inflicted great bodily injury (§ 12022.7, subd. (a)) and found true various firearm enhancements (§ 12022.53, subds. (b), (c) & (d)). The court sentenced Colbert to 32 years to life in prison.
Undesignated statutory references are to the Penal Code.
Before trial, the prosecutor and defense counsel agreed that the court could receive evidence that, on the day of the shooting, H.A. had accused Colbert of raping H.A.'s niece. The People wanted to use this evidence to show Colbert's motive; i.e., to silence H.A. from going to the police. Conversely, Colbert's attorney intended to use this evidence to show H.A.'s motive to punish Colbert for the rape by falsely accusing him of the shooting. The prosecutor agreed to not elicit evidence of the "details" and "exact details" of the rape.
Colbert contends his convictions should be reversed because the court erroneously admitted too many details of the rape. Because Colbert's trial counsel did not object when this evidence was first elicited, and when he did object later did so only on lack-of-foundation grounds, to avoid forfeiture on appeal Colbert contends his counsel's failure to object constituted ineffective assistance.
We reject these assertions. Colbert's attorney forfeited these issues on appeal by failing to object at trial. Moreover, the court properly received the rape evidence for nonhearsay purposes and gave the jury an appropriate limiting instruction. We also reject Colbert's ineffective assistance of counsel claims. Defense counsel was not asked to explain why he failed to make the objections appellate counsel urges now, and this is not an instance in which there could be no satisfactory explanation. (See People v. Lopez (2008) 42 Cal.4th 960, 966.)
Colbert also contends the court improperly sentenced him to seven years to life on count 1. We reject that claim. However, while this appeal was pending, the Legislature amended section 12022.53, subdivision (h) to give the trial court discretion to strike or dismiss the 25-year gun enhancement imposed under section 12022.53, subdivision (d). Colbert contends, and the Attorney General concedes, that the matter should be remanded to allow the trial court to exercise its discretion under section 12022.53, subdivision (h). We agree and, therefore, will affirm the judgment of conviction and remand for resentencing.
FACTUAL BACKGROUND
For many years, H.A. lived in a neighborhood with Colbert's parents. H.A. has known Colbert since Colbert was a child. H.A.'s sister, April, is friends with Colbert's aunt.
In July 2014 Colbert and his cousin were at April's house for a party. The next day, April called H.A. and told him that early the next morning after the party, she saw Colbert raping H.A.'s niece, who was "passed out."
April took the niece, who was "incoherent," to the hospital. After seeing his niece there, H.A. was furious and told Colbert, "[Y]ou got two choices, it's jail or hell."
That afternoon, Colbert's mother, Bonita, called H.A. and defended her son. The conversation did not end well. Then, April and Colbert's aunt visited H.A., who was staying at his brother Joe's house, and tried to calm him down.
H.A. fell asleep on Joe's living room couch. At about 10 p.m., H.A. was awakened by noise at the front door.
The wood front door was open, but a metal screen security door was closed and locked. A bright porch light was on. From inside the house, H.A. could see out the security door. However, the security door is designed so that a person outside cannot see in.
H.A. testified that he saw Colbert standing at the front door. H.A. walked towards the door and saw Colbert's face. Colbert said, "Chaos, Chaos, I didn't do it. I didn't do it." Chaos is Joe's nickname. Colbert said, "It wasn't like that, Chaos."
H.A. walked away from the door, towards Joe's bedroom. H.A. turned when Colbert called out his name. Colbert then shot H.A. through the screen door.
Two bullets struck H.A., and one lodged in his neck. At the scene, H.A. told a sheriff's deputy that "Bonita's son" had shot him. At trial, H.A. testified that he was "100 percent sure" that Colbert was the shooter.
Joe's girlfriend, who also went to the front door, testified that glare from the porch light made objects look "blurry" and she could not identify the shooter. She told police that she did not want to get involved. --------
DISCUSSION
I. ISSUES INVOLVING EVIDENCE OF ALLEGED RAPE OF H.A.'S NIECE
A. Pretrial Agreement on Admissibility of Evidence of Alleged Rape
Before trial, the prosecutor filed a trial brief stating that he intended to prove Colbert's motive so that the jury would not be misled "into thinking that this was simply a random act of violence." The prosecutor intended to prove that Colbert shot H.A. to prevent H.A. from reporting the rape. To avoid undue prejudice, the prosecutor stated that he would not elicit evidence of "the details and circumstances of the rape" or the "exact circumstances" of the rape but instead "merely [H.A.'s] accusations."
Colbert's attorney filed a pretrial motion seeking to exclude evidence of the rape. However, in light of the prosecutor's willingness to not delve into the details, defense counsel made what was called a "tactical decision" and withdrew his motion to exclude the rape evidence. Defense counsel stated he would use that evidence to show H.A.'s motive to fabricate the attempted murder charge—i.e., that H.A. was so angry at Colbert for raping his niece, he falsely accused Colbert of the shooting.
B. H.A.'s Trial Testimony About the Alleged Rape
1. Direct examination
On direct examination, H.A. initially testified that April told him Colbert had "raped" his niece. Then, without objection to the question, "What did [April] tell you on the phone?"—H.A. testified that April said she walked in on Colbert "having sex with [the niece] from the back with her pants rolled, her pants rolled inside out down to her ankles, and she [was] passed out." Again without objection, H.A. testified that April said his niece was "incoherent."
After seeing his niece in the hospital, H.A. spoke with Colbert on the telephone. H.A. testified:
"A: [Colbert] said [he] didn't do it, but I told [him], you got two choices, it's jail or hell.
"Q: What did you mean by that?
"A: I meant jail or hell.
"Q: Why did you say that?
"A: I said that because they raped my niece, and they drugged and raped my niece. And because, man, I've been knowing your family for 31 years. My niece go over to your house, and then you all drug her and rape her all night long? Because she was there all night until the next morning. [¶] So whatever you all put in her passed her out to make her like that, incoherent, you all did this all night long. And a girl to take off her pants. She take her pants off. They flipped all the way down to her ankles, and she's just laying [sic] there passed out.
"[Defense counsel]: Objection, your Honor. Calls for speculation. [¶] . . . [¶] Not have firsthand knowledge of any positioning person."
2. Limiting instruction
Ruling on the objection, the court told the jury that defense counsel "is right" because H.A. did not have "personal knowledge" of the alleged rape. Nevertheless, the court told the jury he was "not going to sustain" the objection but instead give a "limiting instruction" of "how you can handle or how you can apply the testimony."
Without objection, the court told the jury to not consider H.A.'s testimony for the truth of the matter asserted, but instead only as it reflected what H.A. had heard and how that may have affected him and Colbert:
"If you find that you believe [H.A.'s] testimony, you can use his testimony as explaining what is going on in this particular event, what he has heard and is motivating him to have a conversation with someone else, allegedly, among others, [Colbert].
"So whether or not what [H.A.] has been told this was true doesn't matter to us. What we can do is we can consider the motivation, and we can consider the circumstances and the consequences of what he heard, and how it had affected on [sic] his house and his actions.
"If you find it appropriate, you can apply it to [Colbert's] explanation of his actions. So that is the limiting instruction."
When the prosecutor asked, "After you told [Colbert] jail or hell, how did [Colbert] respond?" H.A. interjected, "Can I say, I'd seen [my niece] at the hospital. . . . I'd seen her incoherent at the hospital." Colbert's lawyer objected, "Nonresponsive." Instead of ruling on that objection, the court restated its previous limiting instruction:
"Let me make sure everyone understands my ruling. My ruling was really related not to what he says he saw. That is admissible without limitation. Really the objection that [Colbert's attorney] made was to suggest specifics about the position that the alleged rape victim was in with her ankles together and her panties down around her ankles. [¶] If [Colbert] didn't see that and he's talking about what somebody else told him, then again, you can take that as evidence for an explanation of all the events that occurred, how it affected the hearer, what he might have said to someone else, and what that person may have responded to him. All that is fine. [¶] But again, things that he didn't personally see, that's for a limited purpose."
C. Instructions and Closing Argument
The court instructed the jury with CALCRIM No. 303, which states, "During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other."
In closing argument, defense counsel told the jury it could use the evidence of sexual assault only to show motive, and not to establish that the rape occurred:
"You heard the allegations that [Colbert] and his cousin had been engaged in a sexual assault on [H.A.'s] niece. Okay.
"You actually didn't hear any evidence that that happened. All right. And actually the only evidence that you can consider related to that is that [H.A.] himself believed this happened. And he didn't see this himself. He heard it from someone who is related to him. He obviously felt very emotionally about it. . . .
". . . So you can't consider allegations, but you certainly can consider the effect that would have had on [H.A.] And just as the [P]eople have shown that there was a motive in the case by [Colbert][,] so, two [sic], there is a motive for the victim, [H.A.], to point the finger at my client . . . . [¶] . . .
". . . So when I started off this whole thing talking about the [rape] incident, that you are not allowed to consider as evidence but you are allowed to consider for purposes of the effect it may have had on [H.A.], that is what I'm talking about. I'm talking about his motive.
D. Colbert's Contentions and the Standard of Review
Colbert contends the court erred in overruling his objection to H.A.'s testimony about the rape. He asserts the testimony was inadmissible because it was not based on H.A.'s personal knowledge. While conceding that evidence of the alleged rape itself was relevant, Colbert contends the details (i.e., that the woman's pants were rolled down to her ankles and she was drugged unconscious) "had no bearing" on any contested issue and were, therefore, irrelevant. Colbert contends these details were inflammatory, had "no probative value" and, therefore, should have been excluded under Evidence Code section 352.
Colbert further contends that H.A.'s testimony that his niece was drugged to facilitate the rape was "a clear violation" of the agreed-upon scope of the rape evidence.
Colbert acknowledges that apart from the lack-of-personal-knowledge objection, his trial attorney made no objection or motion to strike this evidence. He contends, however, that if any issue was forfeited on appeal as a result, his attorney rendered constitutionally ineffective assistance. Colbert asserts that defense counsel had no reasonable tactical ground for failing to make the proper objection because H.A.'s graphic descriptions of the alleged rape "could only have served to inflame the jury."
We review the trial court's ruling on these evidentiary issues for abuse of discretion. (See People v. Lewis (2001) 25 Cal.4th 610, 637.) An abuse is established only where the court "exceeds the bounds of reason, all of the circumstances being considered." (People v. Stewart (1985) 171 Cal.App.3d 59, 65.)
E. Analysis
Generally, the rules of evidence are not self-executing. We may not reverse a judgment based on "the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection." (Evid. Code, § 353, subd. (a).)
On direct examination, H.A. testified that April told him that Colbert raped his niece "from the back with her pants rolled . . . down to her ankles" and while she was "passed out." Colbert's attorney did not object to the question and did not later move to strike this testimony.
Colbert's argument that evidence of the details of the rape were (a) not relevant, (b) excessively prejudicial under Evidence Code section 352, and (c) exceeded the agreed scope of the pretrial ruling is forfeited because his attorney did not object on these grounds during H.A.'s direct examination. "The objection requirement is necessary in criminal cases because a 'contrary rule would deprive the People of the opportunity to cure the defect at trial and would "permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal."' [Citation]. 'The reason for the requirement is manifest: a specifically grounded objection to a defined body of evidence serves to prevent error. It allows the trial judge to consider excluding the evidence or limiting its admission to avoid possible prejudice. It also allows the proponent of the evidence to lay additional foundation, modify the offer of proof, or take other steps designed to minimize the prospect of reversal.'" (People v. Partida (2005) 37 Cal.4th 428, 434.)
Moreover, on cross-examination, Colbert's attorney elicited the same evidence by asking H.A. to "elaborate" on his prior testimony:
"[Defense counsel]: Now, I did write down this quote on direct when you were testifying earlier today indicating that you felt betrayed, and you stated they needed to be punished. Can you elaborate on that?
"A: Sure. For the simple fact that if I been knowing your family for 30 years—okay?—and man, I tell you we over your house and we kicking it, and then me and my brother leave and you all say leave her here, she all right, okay? Then we leave her there because we thinking this like family. We known [sic] you all 30 years. Then the next day my niece ends up drugged, raped incoherent. Man, that's betrayal at the highest moment."
Colbert's attorney used this testimony to show that H.A. wanted Colbert to be "punished" and, therefore, had a motive to fabricate the attempted murder charges against Colbert. By eliciting evidence of the rape details on cross-examination, Colbert again forfeited these issues on appeal. (People v. Brooks (1965) 234 Cal.App.2d 662, 681 [defendant cannot complain of the prejudicial effect of evidence elicited on cross-examination in support of his own case].)
Attempting to avoid forfeiture, Colbert contends that "inherent" in the one objection his attorney did make—lack of personal knowledge—is that H.A.'s testimony violated the pretrial agreement to not elicit evidence of the rape details. He also contends the same objection sufficed to invoke Evidence Code section 352. Colbert cites People v. Scott (1978) 21 Cal.3d 284, 290, which states that an objection may be preserved for appeal where the trial court understood the true objection despite "inadequate phrasing."
This argument is untenable because there is nothing in the record to suggest that the trial court understood, or even should have understood, that the objection "calls for speculation" was in fact an objection that the People had violated the pretrial agreement or that the court should rule engage in the balancing of probative value against undue prejudice under Evidence Code section 352. "'A party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct.'" (People v. Hopson (2017) 3 Cal.5th 424, 458.)
Moreover, with respect to the objection Colbert did make (lack of personal knowledge), the trial court did not abuse its discretion in allowing the testimony subject to the limiting instruction. On direct examination, the prosecutor asked H.A. why he wanted Colbert to go to "jail or hell" for what he had done. In explaining his motivation, H.A. testified it was because Colbert had "raped" his niece "all night long" by taking off her pants and drugging her. Just moments before, H.A. had already testified that his knowledge about the rape came exclusively from a telephone conversation with April. Thus, the jury was keenly aware that H.A.'s testimony about the alleged rape was based solely on what April had told him and not anything he saw firsthand. Thus, while it is true that H.A.'s testimony was based on hearsay and not his personal knowledge, the trial court properly instructed the jury to not consider the evidence for the truth of the matter asserted, but only as to its effect on H.A.; i.e., what was motivating him. (See Rufo v. Simpson (2001) 86 Cal.App.4th 573, 591 [statements offered to explain a person's conduct are not hearsay]; Evid. Code § 355 [When evidence is admissible for one purpose and not another, the court "shall restrict the evidence to its proper scope and instruct the jury accordingly."].)
F. Ineffective Assistance of Counsel
Colbert asserts that if we find he forfeited his evidentiary claims, he received ineffective assistance of counsel.
To establish a claim of ineffective assistance of counsel, a defendant must establish both that counsel's representation fell below an objective standard of reasonableness and that it is reasonably probable that, but for counsel's error, the result of the proceeding would have been different. (People v. Benavides (2005) 35 Cal.4th 69, 92-93.) "Whether to object to inadmissible evidence is a tactical decision . . . ." (People v. Hayes (1990) 52 Cal.3d 577, 621.) Accordingly, "[f]ailure to object rarely constitutes constitutionally ineffective legal representation." (People v. Boyette (2002) 29 Cal.4th 381, 424.)
Colbert's ineffective assistance claim fails because he cannot establish deficient performance. The record does not disclose why defense counsel failed to assert the objections that Colbert's appellate lawyer now urges. Colbert cites nothing in the record showing that his attorney was asked to explain these omissions and, contrary to Colbert's claim, this is not an instance in which there could be no satisfactory explanation. Indeed, it is not clear that H.A.'s testimony about the rape even exceeded the scope of the pretrial agreement—which may well explain defense counsel's failure to object. Before trial, the parties agreed that the prosecutor could offer evidence that H.A. accused Colbert of raping his niece but would not produce evidence of "the exact circumstances" but "merely the accusations . . . ." The phrase "exact circumstances" is inherently ambiguous. It is unclear which "circumstances" the parties agreed the jury should hear and which "exact circumstances" were to be excluded. The parties never put the details of the agreement on the record. Moreover, the niece's state of undress and her being unconscious were H.A.'s "accusations." Thus, because the parties agreed that the jury should hear evidence of H.A.'s "accusations," it is entirely possible that defense counsel did not object to H.A.'s testimony because nothing objectionable occurred.
Further, even if H.A.'s testimony did exceed the scope of the pretrial agreement, Colbert's counsel could have had tactical reasons to not object. As the Attorney General notes, "by definition rape involves nonconsensual sexual intercourse accomplished by threats, force, or fraud, or with a victim who is unconscious or incapable of consenting." (§ 261.) Defense counsel could reasonably conclude that the jury, hearing that the niece's pants were rolled down and that she was unconscious, would not have been inflamed to any significantly greater extent than hearing that a rape had occurred. Moreover, once that evidence had been received, defense counsel made a tactical decision to use it. In closing, Colbert's lawyer argued that H.A. was so angry, he was falsely accusing Colbert of the shooting to punish him for the rape.
An attorney may choose not to object for many reasons. Our role is not to "second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight." (People v. Scott (1997) 15 Cal.4th 1188, 1212.) Under these circumstances, we reject Colbert's claim of ineffective assistance of counsel.
II. SENTENCING ISSUES
A. Original Sentence
Colbert contends his sentence of seven years to life for premeditated attempted murder is unauthorized. He asserts the court should have sentenced him to life in prison with the possibility of parole. We disagree. The sentence for attempted premeditated murder is an indeterminate term of life in prison with the possibility of parole after seven years. (§§ 664, subd. (a); 3046, subd. (a)(1); see People v. Campos (2011) 196 Cal.App.4th 438, 445 [sentence imposed for attempted willful, deliberate and premeditated murder described as seven years to life], disapproved on other grounds by People v. Fuentes (2016) 1 Cal.5th 218, 229, fn. 8.) Moreover, at the time of sentencing, the court properly imposed a consecutive term of 25 years to life under section 12022.53, subdivision (d) for the gun enhancement attached to count 1. Thus, the trial court correctly imposed a total indeterminate term of 32 years to life.
B. Statutory Amendment and Resentencing
Section 12022.53 provides a 25-year-to-life enhancement for personally and intentionally discharging a firearm causing great bodily injury during an attempted murder. (§ 12022.53, subds. (a)(1), (a)(18) & (d).) Here, the court imposed this enhancement, adding 25 years to Colbert's sentence.
When sentencing Colbert in 2016, the court lacked the authority to strike this enhancement. (See, e.g., People v. Kim (2011) 193 Cal.App.4th 1355, 1362-1363, citing former § 12022.53, subd. (h).) However, effective January 1, 2018, section 12022.53, subdivision (h) provides, "The court may, in the interest of justice pursuant to [s]ection 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law."
Colbert's case was not yet final when this amendment to section 12022.53 became effective. Accordingly, because section 12022.53, subdivision (h) now gives the trial court authority to lower Colbert's sentence, the matter is remanded to the trial court to exercise its discretion in determining whether to strike the enhancement previously imposed under section 12022.53, subdivision (d). (See People v. Arredondo (2018) 21 Cal.App.5th 493, 506-507.)
DISPOSITION
The judgment of conviction is affirmed. The sentence is vacated and the matter is remanded for resentencing in which the trial court is directed to exercise its discretion with respect to the firearm enhancement under section 12022.53, subdivisions (d) and (h).
NARES, Acting P. J. WE CONCUR: O'ROURKE, J. IRION, J.