Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County Super. Ct. No. VCF143389. Joseph A. Kalashian, Judge.
Kim Malcheski, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, Acting P. J.
Defendant Andre Contreras was convicted of first degree murder, two counts of attempted murder, permitting another to shoot from a vehicle, shooting from a motor vehicle, and shooting at an inhabited dwelling. As to the first degree murder charge, the jury found true the special circumstances that the murder was committed to further gang activities and the murder was committed by discharging a firearm from a motor vehicle. In addition, multiple gun and gang enhancements were found true. Defendant appeals, raising numerous claims of ineffective assistance of counsel, arguing that the matter must be remanded for resentencing, and asserting it was error to impose a parole revocation fine. We agree that the matter must be remanded for resentencing; in all other respects, the judgment is affirmed.
FACTS
On March 26, 2005, Alejandro Gonzales reported that his white Honda four-door car had been stolen.
Pedro Flores was standing outside of his home on Easter morning March 27, 2005. A white car with two Hispanic male occupants drove by. The occupants of the car stared at Flores. Flores “flipped them off” and made a Northerner gang sign. The car turned around and one of the occupants fired shots at Flores. Flores later told an officer that the driver was the shooter. Flores ran inside and moved his sister from the front bedroom to the rear bedroom. More shots were fired into the front bedroom. Flores testified that the passenger was the person who was shooting after Flores went inside his home. Flores described the driver as skinny and the passenger as heavier. A handgun was used.
J.B., an 11-year-old neighbor of Flores, testified he was playing in the backyard on Easter morning. He heard gunshots and ran to a window and looked out. Flores was calling out names to the males in a four-door white car. The car contained two males in the front seat. Flores went inside his home. The car turned around and the passenger started shooting a rifle.
Later that same Easter morning, V was with his older brother, Anthony Castro (Castro). They went to a gas station to put gas in their mother’s car. A white Honda drove by and the passenger flashed a Southerner gang sign at them. V and Castro ignored the incident. The driver stopped at the gas station and put gas in the car. V said the driver was skinny. They left the gas station and the white Honda followed them.
Castro then drove to pick up his good friend Alejandro Salazar, a Norteno gang member. Castro was still being followed by a white Honda with two males inside. The Honda continued to follow them after Castro picked up Salazar. Castro returned to his house and dropped off V. Castro changed his clothes and then he and Salazar began walking back to Salazar’s house.
As Castro and Salazar were walking back toward Salazar’s house, the white Honda drove in their direction. A rifle came out of the back seat window and shots were fired. Salazar fell to the ground, then got up and ran to his house. Castro ran into a different house.
V was outside of his house when his cousin Sandra came and said that Castro had been shot. V saw the white Honda speeding away from the area. Castro had been shot three times. He bled to death from the gunshot wound to his back. This bullet passed through his liver, kidney, diaphragm and heart. He had two other bullet wounds, one to his leg and one to his hip.
Salazar’s aunt took Salazar to the hospital. He had been shot three times, once each to the head, back and leg.
On Easter evening, law enforcement received a call reporting the location of a stolen vehicle. Deputy Sheriff William Hakker went to the location. He saw a white Honda with a Hispanic male in the driver’s seat. The male ran into an apartment. Defendant came out of the same apartment; he was not the male who ran inside the apartment. The white Honda matched the description of a vehicle used earlier in a shooting. The vehicle contained a .22 rifle, and a 12-gauge shotgun.
Defendant was questioned. At first, defendant denied all involvement in the shootings. He then admitted that during the first shooting he shot at the window of the house. In the second shooting, defendant was driving when Ezekial Perez shot at the two males walking down the street. Defendant said that earlier that morning he went to Kmart with Ezekial and gave him money to buy ammunition. Ezekial bought the ammunition.
On Easter morning, March 27, 2005, two bald, “gangster-type” males came into the Delano Kmart and purchased a box of .22 caliber ammunition. An employee of the store identified Ezekial Perez from a picture as the “chubby” person who walked out of the store with a bag of ammunition.
Stephen Pederson testified as an expert on gangs. He testified that defendant was a gang member and the crimes were committed for the benefit of a criminal street gang.
DISCUSSION
I. Effective Assistance of Counsel
Defendant raises a laundry list of claims he asserts as instances of the ineffective assistance of his defense counsel. He contends that the repeated instances should be considered presumptively prejudicial because they cumulatively demonstrate ineffectiveness and, even if not presumptively prejudicial, counsel’s deficiencies were prejudicial in any event.
“‘“[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was ‘deficient’ because his ‘representation fell below an objective standard of reasonableness … under prevailing professional norms.’ [Citations.] Second, he must also show prejudice flowing from counsel’s performance or lack thereof. [Citations.] Prejudice is shown when there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’”’ [Citations.]” (In re Thomas (2006) 37 Cal.4th 1249, 1256.) The test “is not solely one of outcome determination. Instead, the question is ‘whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.’ [Citation.]” (In re Harris (1993) 5 Cal.4th 813, 833.)
“‘“Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of professional assistance.’” [Citation.] “[W]e accord great deference to counsel’s tactical decisions” [citation], and …“courts should not second-guess reasonable … tactical decisions in the harsh light of hindsight” [citation]. “Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts.” [Citation.]’” (People v. Stanley (2006) 39 Cal.4th 913, 954.)
Defendant’s first claim of ineffective assistance of counsel is that defense counsel was not prepared for trial. Defendant argues that defense counsel represented him at trial without filing any written motions, calling any witnesses, or filing a sentencing report. Defendant fails to argue or show how any of these claimed deficiencies may have prejudiced him at trial.
In addition to the above vague claims of lack of preparedness, defendant points to one specific instance as evidence that his counsel was unprepared. During his opening statement to the jury, defense counsel stated that the evidence will show that defendant is not guilty of murder or assault with a deadly weapon. Defendant was not charged with assault with a deadly weapon. Although this was a misstatement by defense counsel, counsel may have used it merely as a short-hand term for the other counts, which all involved shooting a gun. In any event, defendant has failed to show any prejudice. The jury was well aware of the charges against defendant from the instructions and the verdict forms. In addition, before the opening statement was made the court informed the jury that an opening statement is not evidence but is merely an overview as to what the attorney believes the evidence is going to be. Defendant has failed to show that the alleged lack of preparation by his counsel had any effect on the outcome of his case.
As to his second claim of ineffectiveness, defendant points to defense counsel’s opening statement and closing argument to the jury where his counsel said that defendant was 15 years old at the time of the offenses. The information alleged that defendant was 16 years old at the time of the current offenses, thus making him eligible for a sentence of life without the possibility of parole if he was found guilty of first degree murder with special circumstances. (Pen. Code, § 190.5.)
Defendant claims that if defense counsel believed that defendant was only 15 years old at the time of the shooting, he had the obligation to produce legally admissible evidence to prove this contention and was ineffective in not doing so.
Defendant was asked his date of birth during his interview with law enforcement. He responded that his date of birth was February 7, 1989, thus making him 16 years of age at the time of the current offense in March of 2005. The probation report lists the same birth date. Defense counsel’s argument to the jury included that defendant was a scared 15-year-old boy with a 22-year-old man and that defendant had no intent to kill.
Regardless of what may have caused defense counsel to refer to defendant as a 15 year old, it was to defendant’s benefit to be portrayed by defense counsel as young as possible. In any event, there is nothing in the record to contradict the evidence that defendant was 16 years old. A claim that defendant may have been 15 years old at the time of the offense is a claim falling outside the record and would be more appropriately raised in a petition for writ of habeas corpus. On this record, we cannot say this claim of ineffectiveness prevails.
Flores testified that he thought the gun that was used was a “small” .22, but that his neighbor said it was a rifle. Defendant contends, as a third claim of ineffectiveness, that this was inadmissible hearsay and his counsel should have objected, made a motion to strike, and asked the court to instruct the jury to disregard the evidence. Even if this failure constitutes ineffective assistance of counsel, the ineffectiveness would be harmless.
“Failure to object rarely constitutes constitutionally ineffective legal representation.” (People v. Boyette (2002) 29 Cal.4th 381, 424.) Error, if any, in failing to object was harmless since the neighbor, J.B., testified that the gun he saw was a rifle. Thus, Flores’ testimony was cumulative and secondary to the testimony of J.B.
The fourth area of concern raised by defendant is Deputy Julie Strange’s testimony regarding what Flores told her after the shooting. Defendant claims counsel was ineffective in failing to object to inadmissible hearsay statements testified to by Deputy Strange.
At the time of trial Deputy Strange’s last name was Stamper.
Flores testified that the white Honda drove by and “they started shooting at me.” When asked who started shooting, Flores responded that he did not remember. Flores then reviewed his statement to law enforcement and agreed that the statement helped him recall who was shooting first. He testified that it was the driver who was shooting first. Later on, he testified that he thought it was the driver’s side where the shooting came from. Flores was asked if he saw anything after he looked outside the window from inside his home. He testified he did not see anything else. He was asked to look at the report of Deputy Strange. Flores said that the report refreshed his memory. He was asked if he saw the passenger of the car shooting. He replied that he had not seen them that well. Flores testified he did not call the police right away because it did not matter to him, he did not like contact with the police, and he did not like the police “that much.”
On cross-examination, Flores was asked who was shooting after Flores had gone inside his home. He testified he saw the passenger shooting, then said it was not the passenger, it was the other one, then he said he did not know and could not remember if that was when he saw the passenger shooting. He testified that he could not remember if the passenger had a gun in his hand when he looked out the window.
On redirect examination, Flores said he may have told the officer that he saw the passenger shooting at the apartment when he looked out the window, but he did not now recall.
Deputy Strange testified that Flores told her that two Hispanic males were in the car from which shots were fired at him while he was outside his home. Flores told Deputy Strange that when the car first drove by, the driver shot at him; when he was inside of the house he saw the passenger shooting at him. Flores told Deputy Strange that he saw the passenger shooting at him with a possible .22 caliber handgun.
Defendant argues that the testimony of Deputy Strange was not admissible as a prior inconsistent statement because her testimony was consistent with Flores’s testimony and any failure of Flores to recall was a case of innocent loss of memory.
“A witness’s prior statement that is inconsistent with his or her testimony is admissible so long as the witness is given the opportunity to explain or deny the statement.” (People v. Ledesma (2006) 39 Cal.4th 641, 710.) “[T]o the extent a claimed lack of memory amounts to deliberate evasion … inconsistency is implied.” (People v. Gonzalez (2006) 38 Cal.4th 932, 950.)
Flores made inconsistent statements within his own testimony and gave testimony that was inconsistent with his prior statements. In addition, the court could have found that his failure to remember was a deliberate evasion. Under either scenario, the testimony of Deputy Strange was properly admitted as a prior inconsistent statement and counsel was not ineffective in failing to object to her testimony.
Salazar testified that he saw only the driver, but did not get a very good look at him. He said the driver was bald but could not remember his body type. On cross-examination, Salazar said he did not remember what the shooter looked like. Defense counsel asked if he recognized the defendant as being there during the shooting. Salazar responded, “A little bit.” He was asked if defendant was the driver or the passenger and he said defendant was the passenger. Salazar thought defendant was the person who shot the gun. Salazar also said the driver was chunkier and the passenger was skinnier. He was asked if he picked defendant out of a lineup. He said he did not pick out anybody from a lineup even though the lineup was right after the shooting. When asked how sure he was that defendant was the person who shot him, he replied, “Not that sure, because I really didn’t see his face. I just seen that they were bald and that was it.” When asked to give a percentage of certainty, he said he was about 60 percent sure defendant was the person who shot him.
During closing argument, defense counsel argued that Salazar was not able to identify anyone from a photographic lineup including defendant right after the shooting. “Then mysteriously one year and six months later Salazar is sitting in the witness stand, and he identifies the defendant as being the shooter…. But he doesn’t say, ‘Well, I’m one hundred percent sure he’s the shooter.’ He’s 60 percent sure. Proof beyond a reasonable doubt. Is that 60 percent? It’s got to be higher than that.”
Defendant claims, as a fifth instance of ineffectiveness, that defense counsel made a fatal mistake when he opened the door during cross-examination to Salazar’s identifying defendant as the shooter. Defendant argues there could be no informed, tactical reason for defense counsel to help the prosecutor prove his client guilty of murder.
Defense counsel was attempting to show Salazar’s inability to identify the shooter when he questioned Salazar about the identity of the shooter. Although he may not have received the answer he was seeking, counsel cannot be faulted for seeking to show that Salazar could not identify defendant as the shooter. Defense counsel utilized Salazar’s weak and questionable identification in his closing argument. Furthermore, defendant admitted he was in the car when shots were fired at Salazar and Castro. Counsel’s decision to question Salazar on his identification was a sound tactical decision, and in any event it was not prejudicial since Salazar’s identification was weak and defendant admitted he was in the car at the time of the shooting.
V testified that he was outside when his “cousin came quick and told me my brother had been shot.” As his sixth claim of ineffective counsel, defendant asserts counsel failed to object to this inadmissible hearsay.
That V’s cousin came and told him his brother had been shot had absolutely no evidentiary value in proving that defendant was guilty. This was commentary that Castro had been shot, a fact well-demonstrated by the autopsy. Defense counsel had no reason to object to an answer that provided nothing of evidentiary value. Also, because it provided no evidentiary value, any failure to object did not result in prejudice to defendant.
Deputy Hakker testified that Deputy Kent approached him at the scene of the recovery of the stolen Honda and asked if he had seen the “arsenal” in the back of the vehicle. Hakker testified that he then looked in the back of the car and saw a .22 caliber rifle, and a 12-gauge shotgun. Photographs were taken and admitted of the weapons in the back of the vehicle.
Defendant claims, as part of his seventh claim of ineffectiveness of counsel, that the arsenal statement was not only inadmissible hearsay but was a highly prejudicial statement that should have been excluded because those two weapons alone do not constitute an “arsenal.” He asserts counsel should have objected to this testimony.
The argument itself reveals the answer to the question. Two weapons do not constitute an “arsenal.” The jury was clearly aware of this because Hakker testified that he found two weapons in the back of the Honda, and the pictures also showed this. The “arsenal” comment only shows that Deputy Kent was exaggerating, a fact clearly shown to the jury by the evidence. No prejudice could have resulted from this comment.
Defendant’s eighth ground of ineffective assistance of counsel is that defense counsel asked open-ended questions of Detective Hunt regarding why he did not include defendant’s photograph in a photographic lineup he showed to the people who worked at the Kmart where the ammunition was purchased on Easter morning. When Hunt was asked why he showed a lineup that included Ezekiel Perez to the Kmart employees but not a photographic lineup that included defendant, Hunt replied that at that point he felt they had a solid case against defendant and he needed to work on his case against Perez. Defendant argues that the open-ended questions resulted in highly prejudicial and inadmissible lay opinion that the detective thought there was a solid case against defendant.
We again find no prejudice from this instance of claimed ineffective assistance of counsel. At the time the photographic lineup was shown to the Kmart employees, law enforcement had a strong case against defendant. Defendant was found at the apartment where the stolen car used in the shootings was located. Weapons matching the description of the weapons used during the shootings were in the car. Defendant admitted he went to Kmart with Perez and Perez purchased ammunition; most importantly, defendant admitted he was in the car during both shootings and fired the weapon during the first shooting. That there was a stronger case against defendant and that his identification was not in issue was clearly shown by otherwise admissible evidence.
Ninth, defendant contends that during the cross-examination of Detective Benitez (the person who interviewed defendant) defense counsel asked open-ended questions that allowed Benitez to testify that he could tell when defendant was telling the truth during the interview. Defendant asserts that it was improper for Benetiz to offer a personal opinion regarding his credibility and his counsel should have objected to the inadmissible lay opinion.
Defense counsel wanted to show that defendant was truthful during his interview. From defendant’s statement, defense counsel argued that defendant was not the shooter during the second incident and did not intend to kill Castro. We cannot say that this was not a reasonable tactical decision.
As his final claim of ineffective assistance of counsel, defendant again attacks defense counsel for asking open-ended questions. This time his claim is that he asked open-ended questions of the gang expert that allowed the expert to testify about a possible prior arrest for fighting. Defendant contends it was error to allow the gang expert to rely on unreliable hearsay to support his opinion.
When defendant was interviewed, he was asked if the Anthony Castro that he got in a fight with during school was the same person who was shot. Defendant said it was not the same person.
During the cross-examination of the gang expert, defense counsel asked him if he had any documentation of a fight at school involving defendant. He then asked if it was known whether the person he fought with was the person who was killed in this case. The expert replied that there were some allegations, but he did not have any specific documentation.
Asking questions to show there was documentation that defendant did get in a fight with the murder victim is a reasonable tactical decision. Defense counsel wanted to show that defendant did not shoot the murder victim and had no intent to kill him. Showing that defendant did not have any previous encounters with the murder victim aided this theory. Counsel was not ineffective in asking the questions regarding fights during his cross-examination of the expert.
Defendant claims that because of the repeated instances of defense counsel’s ineffectiveness we should presume that the ineffectiveness was presumptively prejudicial. We strongly disagree. Defendant has for the most part raised meritless claims of ineffective assistance of counsel. In those instances where the claims could possibly have some merit, it is clear that counsel’s actions were based on reasonable tactical decisions or were not prejudicial.
Defendant has not proved a prejudicial claim of ineffective assistance of counsel.
II. Imposition of Sentence of Life Without the Possibility of Parole
Defendant was convicted in count 1 of the first degree murder of Castro. Two special circumstances were found true for this count. The trial court imposed the sentence of life without the possibility of parole for the murder.
Penal Code section 190.5 provides in pertinent part that the punishment for a defendant “who was 16 years of age or older and under the age of 18 years at the time of the commission of the crime, shall be confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life.”
Neither the probation report nor the record from the sentencing hearing reflects awareness by the court that it had the discretion to impose a sentence other than life without the possibility of parole.
Defendant contends and respondent concedes that the sentence on count 1 must be reversed and the case remanded to the trial court in order for the sentencing court to exercise its discretion to determine which sentence to impose for the first degree special circumstance murder. We agree the silence of the record about the sentencing choice is suggestive of a lack of awareness by the court and counsel that a sentence other than life without the possibility of parole was available for this 16-year-old defendant.
Defendant and respondent both rely on a case from this court, People v. Ybarra F047855, previously published at 149 Cal.App.4th 1175. Review was granted in Ybarra on other grounds. Respondent has not withdrawn the concession.
III.
Parole Revocation Fine
The trial court imposed a $5,000 parole revocation fine pursuant to Penal Code section 1202.45. Defendant argues the trial court erred in imposing such a fine because a parole revocation fine cannot be imposed when the defendant is sentenced to a term of life without the possibility of parole.
The trial court is not authorized to impose a parole revocation fine when the defendant receives a sentence that does not include a parole period. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183-1186, People v. Jenkins (2006) 140 Cal.App.4th 805, 819.)
If the court on remand imposes a term of life without the possibility of parole it should revoke the $5,000 parole revocation fine.
DISPOSITION
The defendant’s sentence of life without the possibility of parole for murder is vacated. The matter is remanded to the trial court for resentencing in accordance with the views expressed in this opinion. In all other respects, the judgment is affirmed.
WE CONCUR: HARRIS, J., WISEMAN, J.