Opinion
A138685
03-14-2019
THE PEOPLE, Plaintiff and Respondent, v. SAMUEL JOSEPH CUTRUFELLI, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. SC178903A)
Samuel Joseph Cutrufelli (defendant) appeals from a judgment entered after a jury convicted him of two counts of attempted murder (Pen. Code, §§ 187, subd. (a), 664; counts 1, 6), first degree residential robbery (§ 211; count 2), residential burglary (§ 459; count 3), assault with a semiautomatic firearm (§ 245, subd. (b); count 4), possession of a firearm by a felon (§ 29900, subd. (a)(1); count 5), and receiving stolen property (§ 496, subd. (a); count 7). Various enhancement allegations were found true, and the trial court sentenced defendant to a total term of 86 years and 4 months to life in prison.
All further, undesignated statutory references are to the Penal Code.
Defendant contends: (1) the trial court should have granted his motion for a new trial because he received ineffective assistance from his trial counsel; (2) he was deprived of his constitutional right to testify; (3) the court erred in denying his motion to unseal juror contact information; (4) the court erred in allowing a detective to testify as an expert on gunshot wounds; (5) the court erred in imposing multiple punishments under section 654; and (6) remand is required for the court to exercise its discretion to consider whether to strike one or more of the firearm use and/or serious felony enhancements.
We agree the matter must be remanded for the limited purpose of allowing the trial court to exercise its discretion to consider whether to strike one or more of the firearm use and/or serious felony enhancements. We reject the remaining five contentions and affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
On March 7, 2012, an information was filed charging defendant with two counts of attempted murder (§§ 187, subd. (a), 664; counts 1, 6), first degree residential robbery (§ 211; count 2), residential burglary (§ 459; count 3), assault with a semiautomatic firearm (§ 245, subd. (b); count 4), possession of a firearm by a felon (§ 29900, subd. (a)(1); count 5), and receiving stolen property (§ 496, subd. (a); count 7). The information alleged that counts 1 and 6 were violent and serious felonies under sections 667.5, subdivision (c)(12) and 1192.7, subdivision (c)(9); count 2 was a violent and serious felony under sections 667.5, subdivision (c)(9) and 1192.7, subdivision (c)(19); and count 3 was a violent and serious felony under sections 667.5, subdivision (c)(21) and 1192.7, subdivision (c)(18).
The information further alleged as to counts 1 and 2 that defendant intentionally and personally used and discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)). As to counts 1 through 5, the information alleged defendant personally used a firearm (§ 12022.5, subd. (a)) and personally inflicted great bodily injury upon a person over the age of 70 (§ 12022.7, subd. (c)). As to count 6, the information alleged defendant personally used a firearm (§§ 12022.53, subd. (b), 12022.5, subd. (a)). The information alleged defendant had a prior conviction in 2001 for a violation of section 245, subdivision (a)(1), within the meaning of the three strikes law and section 667, subdivision (a).
After a lengthy jury trial, defendant was found guilty as charged. The trial court found true the prior conviction allegation and denied defendant's Romero motion (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) and motion for a new trial. The court sentenced defendant to prison for 50 years to life plus a consecutive term of 36 years and 4 months, and struck the firearm use enhancement as to count 5.
1. The Prosecution's Case
At about 11:00 a.m. on January 4, 2012, 90-year-old Jay L. (J.L.) was in his bedroom at his house in Greenbrae, California, when he heard a loud crash. He walked down his hallway to see what was going on. A man, later identified as defendant, approached and put a .45-caliber semiautomatic pistol to J.L'.s head. J.L. thought his life was over.
Defendant said, "There's a contract out on you." J.L. was surprised and said it "sounds like mafia days or something." Defendant asked, "You're the man with all the fancy cars? Let's go see the fancy cars." J.L. and defendant walked to the garage, and J.L. showed defendant that his cars were not fancy.
Keeping the gun pointed at J.L.'s head, defendant ordered J.L. to go to his bedroom and said he wanted all of J.L.'s valuables. Defendant tied J.L.'s hands behind his back with a belt, put a coat over J.L.'s head, went through J.L.'s things, and took $70 from a money clip.
J.L. was able to release the belt from his hands, and defendant took the cover off J.L.'s head; J.L. then came up with a plan. He stood up and said, "I've got to take a shit." Defendant said, "You can't do that," but J.L. responded, "But I have to," and pulled his pants down. Defendant said, "Stop," and told J.L. to use the bathroom.
J.L. kept four guns in the bathroom, including a .38-caliber revolver that he kept loaded for emergencies. He retrieved the revolver, flushed the toilet, and opened the bathroom door. He hoped defendant would surrender once he saw J.L. with a gun, but as soon as J.L. peeked into the bedroom closet where defendant was, defendant fired his gun, shooting J.L. in the face.
J.L., who had learned to use guns during the 15 years he was in the Sheriff's Air Patrol, used his training to shoot defendant in the right shoulder. Defendant shot back twice, barely missing J.L.'s head and leg. J.L. also shot back, hitting defendant twice in his stomach and once in his leg.
J.L. had to pull the trigger each time he fired a shot because it was a single-action weapon. As the two men fired shots at each other, J.L. said, "Fuck you, you son of a bitch. It's my turn." Defendant responded, "Don't kill me. I have two children. Please, don't kill me."
Defendant, who is "a big guy," then charged at J.L. and knocked him to the floor. He wrested J.L.'s revolver from him, placed it against J.L.'s temple, and pulled the trigger. The gun went " '[c]lick.' " There were no bullets left in the gun because J.L. had been trained to use every bullet " 'so your enemy cannot use it on you and kill you.' "
Defendant appeared startled and left. Blood was dripping out of J.L.'s head "like a [faucet]." J.L. called 911 and staggered outside through the garage when he heard police sirens. There, he met police officers, who told him to hold his hands up. J.L. complied and said, "It's not me."
J.L. was taken to Marin General Hospital, then to Kaiser, where he stayed for "a long time[.]" He had a gunshot wound to his left cheek and a wound to his neck. A doctor opined the wounds were life-threatening. His jaw was still hurting at the time of trial, and he was unable to chew anything hard or talk for long periods of time.
J.L. identified photographs of various items that were taken from his home, including his cell phone, watches, glasses, cuff links, a charm, and a money clip. He testified that defendant also damaged the front door of the house when he broke into the home.
J.L. had two housemates—S.N., who lived in the lower unit of the house, and G.L., who lived in a room in J.L.'s unit. S.N. testified she heard a loud bang and strange noises coming from J.L.'s bedroom. When she ran upstairs, she saw a chair propped against the door to prevent entry. S.N. called out, "Jay, Jay, Jay," and heard J.L. say, "No, no." S.N. ran downstairs, called 911, and hid under the porch. As she hid, she heard gunshots. S.N. left the house after police arrived. When she returned the next day, she saw a hole in the ceiling and on her desk.
G.L. was not home at the time of the incident. She had left the house about 30 minutes before the incident and had locked the front door. She did not know defendant and had not given him or anyone else permission to enter the home.
At about 11:00 a.m. the same day, contractor M.T. was working in San Rafael, about a quarter-mile from J.L.'s house, when he heard two long horn blasts. He looked up and saw a black Lexus. M.T. approached the Lexus and asked the driver—defendant—what was wrong. Defendant was bleeding and said, "I have been shot." M.T. called 911. Defendant tried to drive away but M.T. stopped him. Paramedics came, removed defendant's clothing, and took him away in an ambulance.
Marin County Deputy Sheriff Adam Brown was dispatched to San Rafael in response to M.T.'s 911 call. When he arrived, he saw a black Lexus with traffic collision damage on the front right side. Defendant was bleeding from his right upper arm and had blood on his face. He was moaning in pain and said he had shot himself.
Brown saw a pistol holster in defendant's waistband and a knife in his front pocket. Brown asked where the gun was, and defendant pointed to a revolver that had blood on it. Brown placed the gun on the trunk of the Lexus. Another deputy sheriff secured the gun in his patrol car and took photographs of defendant's injuries, including bullet wounds to his right leg, right arm, right back, and right side of his chest. Defendant said he had been shot in the arm, hip, and leg, and wanted to call his girlfriend before he died. Defendant said the automobile damage was old.
Crime scene investigator Edmund Rudolph collected various items from the Lexus, including a .38-caliber handgun, a handgun holster, a pocketknife, clothing, keys, and defendant's driver's license. The gun's cylinder contained five fired cartridge casings; there was no live ammunition in the gun. The numbers engraved on the handgun matched J.L.'s driver's license number. Rudolph also recovered bags containing jewelry, electronic equipment, and personal items from the Lexus. Rudolph determined that defendant's stepmother was the registered owner of the car.
Rudolph also searched J.L.'s house and the surrounding neighborhood and recovered a latex glove in the roadway, next to a blood trail that came from inside the house. The wood was split on the front door, consistent with the door having been kicked. Drawers in the master bedroom were wide open and the closet appeared to have been ransacked. There were a rolled-up belt, a bullet hole in the comforter, a box with unfired ammunition, and a box that contained three firearms. There was a spent .38-caliber bullet casing in the bathroom. There were a .45-caliber semiautomatic pistol (plus three fired bullet casings and two bullet projectiles from this pistol) and two expended .38-caliber bullets in the master bedroom closet. A third .45-caliber bullet projectile was found downstairs. A path of blood drops went from the master bedroom to the front foyer, through the kitchen and garage to the outside of the house. A technician who assisted in cleaning J.L.'s house found a bullet on the master bedroom closet floor and placed it in a plastic bag.
An expert latent print analyst was unable to find usable fingerprints on the guns or on the stolen items recovered from the Lexus. The analyst found defendant's left thumbprint on the magazine for the .45-caliber pistol.
A ballistics expert opined that the .38-caliber revolver was functional and the .38-caliber bullets that were recovered from J.L.'s house came from that revolver. The .45-caliber pistol was also functional, and the .45-caliber cartridge casings recovered from the scene were fired by that weapon. The expert said it was inconclusive whether the .45-caliber spent bullets that were recovered were fired by the .45-caliber pistol.
A criminalist found some blood on various parts of the .38-caliber revolver and the .357-caliber revolver. An expert in DNA analysis examined the DNA samples and found J.L.'s DNA on the .357-caliber revolver. He found that defendant was the major contributor of DNA found on the .45-caliber pistol. The .38-caliber revolver had J.L.'s DNA as a major profile as well as a mix of defendant's and J.L.'s DNA. Blood on a bedspread matched defendant's DNA profile, and a glove recovered from the scene matched defendant's DNA as the major profile and J.L.'s DNA as a minor profile. A swab from the interior bedroom closet door matched defendant's DNA.
The chief of the radiology department at Marin General Hospital reviewed defendant's X-rays and CT scan taken on the day of the incident. Defendant had an intact bullet in his thoracic cavity and had several fractured ribs that were not likely caused by a bullet.
Twin Cities Police Detective Michael Mejia identified two wounds to defendant's knee. Defendant had an entrance wound to his right shoulder and no exit wound. He also had an entrance wound to the lower right side of his body and an exit wound to his lower rear back. Mejia acknowledged that entry and exit wounds can look very similar.
K.M., who lives a block away from J.L., testified that about 10:00 a.m. on the day of the incident, a man rang her doorbell and asked for "Jimmy." K.M. thought the man was looking for a neighbor whose first name is Jim, and told the man that the neighbor was not there. Video surveillance footage from K.M.'s home showed a man walking near J.L.'s house wearing clothing that matched what defendant was wearing that day. The man had his hand on his waistband, which a deputy sheriff testified was consistent with him carrying a gun. The man's shoes matched the shoes that were recovered from the Lexus. A black Lexus with the same front-end damage as defendant's Lexus drove on the street. K.M. identified defendant's photograph in a lineup and said she was "10 percent sure" of her identification.
S.F., whose house is across the street and up the hill from J.L.'s house, also had video surveillance equipment that captured a black car driving into J.L.'s driveway at about 10:08 a.m. on the day of the incident and pulling away from the house at about 10:47 a.m.
The parties stipulated that defendant had a prior felony conviction and that he was not impaired by alcohol at the time of the incident.
The prosecution also presented evidence that T.C., a neighbor and friend of defendant, purchased a .45-caliber semiautomatic pistol in September 2007 and showed it to defendant. On January 1, 2012, T.C. returned home after spending the New Year's holiday away with family and realized his house had been burglarized. The side door to his garage had been kicked in, and his scuba dive vest, his and his mother-in-law's laptops, a television, jewelry, and guns—including the .45-caliber pistol he had shown to defendant—were missing. T.C. reported the theft to police the same day.
A few days later, T.C. saw a television report about defendant and the incident at J.L.'s house and contacted the Twin Cities Police Department because he knew defendant was not allowed to have guns. T.C. went to San Rafael where the police showed him a black Lexus, which he recognized as belonging to defendant's mother-in-law. Inside the trunk and passenger compartment of the Lexus, T.C. found his scuba dive vest, his and his mother-in-law's laptops, and other items that had been taken from his home. T.C. identified the .45-caliber semiautomatic pistol found in J.L.'s house as his. T.C. had not given defendant permission to possess any of the items in the Lexus or his gun.
The Defense
J.B. testified that he was friends with defendant and T.C. and that the three of them would ride their motorcycles together a couple of times a month. During one outing, the three of them talked about how defendant had received new gear from his insurance company after he was involved in a motorcycle accident. T.C. said that all of his belongings were insured and that it would be nice to get "all new stuff and money . . . ."
T.C. received insurance money for the items that were stolen from his home, but he denied discussing any scheme to falsely report items missing to his insurance company in order to collect payment.
B.M., an Oakland attorney, dated defendant from July to October 2010. One day, B.M. followed defendant, who was riding his motorcycle, to a house in Greenbrae to get the motorcycle repaired. The house was on the same street on which J.L. lives. They dropped the motorcycle off and stopped at another house on that street to look at a car. B.M. believed this house was on the corner (where J.L.'s house was). There, defendant talked to an older man who was working on a white, collector-type car in his garage.
Defendant's father testified that he was a contractor and that he and defendant sometimes worked together. In September 2011, defendant asked him to take him to Greenbrae to look at a house. Defendant went inside J.L.'s house and came out a half-hour later. The next week, defendant's father got his contractor tools together, and he and defendant drove back to J.L.'s house. Defendant went inside J.L.'s house and came out a half-hour later, "stoned" and "messed up." Later that day, defendant's father found white powder, a syringe, and a spoon in the tool bag he had taken with him. Defendant's father had seen defendant on drugs before and believed defendant obtained the drugs from J.L.'s house.
J.L. and his housemates denied they ever used or sold illegal drugs. The police detective who searched J.L.'s house found no evidence of drugs.
Dr. Edward Alfrey, who treated defendant on the day of the incident, testified that defendant had gunshot wounds to his back, right shoulder, right chest and left leg. As a trauma doctor, Dr. Alfrey had experience seeing gunshot wounds, but his job did not include the determination of whether a wound was an entry or exit wound. In general, a small wound is an entry wound, but it is hard to tell if a wound is an entry or exit wound unless one hole is small and the other is large. Because defendant's wound to the back was a small hole, Dr. Alfrey believed it was an entry wound.
DISCUSSION
1. Ineffective Assistance of Counsel
Defendant contends the trial court should have granted his motion for a new trial because he received ineffective assistance from his trial counsel. We reject his contention.
a. Conflict of Interest
(1) Background
In his motion for a new trial, defendant argued, among other things, that his trial counsel had a conflict of interest that affected his ability to represent him because counsel filed a civil negligence action against J.L. on defendant's behalf during the criminal trial, without defendant's knowledge or consent. Defendant claimed he was prejudiced because the lawsuit received negative publicity and jurors might have seen newspaper headlines or articles about it that were published during the criminal trial.
Defendant submitted various documents in support of his motion, including his declaration, a copy of the civil lawsuit in which defendant claimed J.L. caused him to suffer injuries and financial loss by negligently shooting him, a Marin Independent Journal article entitled Shooting defendant files lawsuit, and three online articles from the same journal entitled Greenbrae shooting defendant sues 90-year-old man who was shot, Lawyer who sued 90-year-old Greenbrae shooting victim calls social-media criticism unfair, and Greenbrae gunman who sued 90-year-old victim leads top 10 web stories for 2012. Three of the articles came out during or around the time of the criminal trial, and counsel was attributed in one of them as saying that defendant was a methamphetamine user, the incident was the result of "a drug deal gone sideways," and that J.L. shot defendant in the back as he fled.
The prosecutor argued the civil lawsuit did not affect the criminal trial, as there was no evidence the jurors disobeyed the trial court's admonition not to look at media coverage during the trial. The prosecutor also argued the articles contained information that was consistent with the defense theory.
The trial court rejected defendant's claim, finding it was not credible that he had no knowledge of, or did not consent to, the filing of the civil lawsuit. The court noted that defendant had "admitted here, in open court, that he will bullshit, or B.S., anybody, essentially admitting that he will say whatever he needs to say to get what he wants . . . . [¶] And when I listened to that statement and evaluate [his] testimony here today, . . . I cannot accept that [he] has given honest testimony, either here in court or through his declaration." The court found defendant also failed to establish prejudice: "There is no evidence that any of the jurors saw a newspaper article. They were admonished, repeatedly, throughout the trial not to view the media coverage in the case." "I am presuming, as the law does, that the jurors followed my admonitions. And, again, there is no conflict based on a lawsuit being filed in this case. So, on those grounds, the motion is denied."
(2) Discussion
A criminal defendant is guaranteed the right to the effective assistance of counsel, which includes the right to representation free from any conflict of interest that undermines counsel's loyalty to the defendant. (People v. Doolin (2009) 45 Cal.4th 390, 417.) Thus, under both the California and the federal Constitutions, "a defendant is deprived of his or her constitutional right to the assistance of counsel in certain circumstances when, despite the physical presence of a defense attorney at trial, that attorney labored under a conflict of interest that compromised his or her loyalty to the defendant." (People v. Rundle (2008) 43 Cal.4th 76, 168, disapproved on another ground in People v. Doolin, supra, at p. 421, fn. 22.) "[C]laims of Sixth Amendment violation based on conflicts of interest are a category of ineffective assistance of counsel claims that, under Strickland [v. Washington (1984) 466 U.S. 668, 694], generally require a defendant to show (1) counsel's deficient performance, and (2) a reasonable probability that, absent counsel's deficiencies, the result of the proceeding would have been different." (People v. Doolin, supra, at p. 417.)
The trial court's denial of a motion for a new trial based upon a claim of ineffective assistance of counsel will not be disturbed on appeal absent " ' "a manifest and unmistakable abuse of discretion . . . ." ' " (People v. Delgado (1993) 5 Cal.4th 312, 328.) Where, as here, the ineffective assistance claim is raised in a motion for a new trial, the Supreme Court has observed: "[T]rial judges are particularly well suited to observe courtroom performance and to rule on the adequacy of counsel in criminal cases tried before them." (People v. Fosselman (1983) 33 Cal.3d 572, 582-583.)
We agree with the trial court that counsel's filing of a civil lawsuit did not create a conflict of interest that rendered counsel's representation of defendant in the criminal case ineffective. Defendant claimed that counsel violated his trust and loyalty by filing the lawsuit without his knowledge or consent, but the court reasonably found the claim was not credible. There was also no evidence that counsel sacrificed defendant's interests in the criminal case for the benefit of the civil lawsuit. In fact, because the civil lawsuit was consistent with the defense theory, it was in counsel's interest to obtain the best verdict in the criminal case in order to achieve a good result in the civil case.
This case is therefore distinguishable from People v. Corona (1978) 80 Cal.App.3d 684, on which defendant relies. There, defense counsel rendered ineffective assistance where he purposefully engaged in conduct that harmed his client and made the trial "lengthy and sensational . . . at any price," thereby "render[ing] the trial a farce and a mockery" because he had entered into a fee agreement with the defendant whereby counsel received exclusive literary rights to defendant's life story in exchange for representing him in the criminal case. (Id. at pp. 704, 727.) The record reflects no such fee arrangement or conflicting motivation here.
Moreover, even assuming counsel compromised his loyalty to defendant by filing the civil lawsuit, we agree with the trial court that defendant failed to establish prejudice. The court repeatedly admonished the jurors not to view media during the criminal trial, and there was no reason to believe that any juror had violated the instruction. (See People v. Gray (2005) 37 Cal.4th 168, 231 [jurors are presumed to follow the court's instructions].) It was also unlikely that any juror who may have seen a newspaper headline or article would have been negatively influenced by it in reaching a verdict in the criminal case, especially in light of the fact that the allegations in the civil lawsuit supported the defense theory and reflected an assertion of innocence. In light of defendant's failure to establish a conflict of interest or any prejudice stemming from a possible conflict, the court did not err in denying defendant's motion for a new trial.
b. Counsel's Performance
Defendant contends the trial court should have granted his motion for a new trial based on trial counsel's failure to fully cross-examine J.L. and his failure to present an expert witness to "explain[] how some of [J.L.'s] medical conditions could have impacted his memory . . . ." We reject his contention.
After the verdict, defendant retained new counsel, who argued that trial counsel had not provided adequate representation. The trial court rejected the argument, stating: "[New counsel] is claiming that [prior counsel] didn't try the case to the level of her standards, therefore, he is incompetent. That is not the Constitutional standard. [Prior counsel] provided the Constitutionally adequate representation to [defendant] in a tough case." The court noted, among other things, that trial counsel conducted an investigation, requested funds for—and consulted with—experts, offered a consistent defense theory, and competently represented defendant at trial with an "aggressive and forceful and focused" "courtroom approach," which "the Court appreciate[d] and admired . . . ."
The trial court said as to counsel's alleged failure to fully cross-examine J.L. or to retain an expert on memory issues: "My own observations of [J.L.'s] testimony supported by notes I took throughout the trial, [were] that he was an awfully good, powerful, persuasive prosecution witness, who it might well have done the defense attorney good to not keep on the stand for too long. He was an attractive witness, an engaging witness, a sympathetic witness, a witness who had a memory of what happened and whose recitation of what happened was completely consistent with all the corroborating evidence that was presented throughout the trial. [¶] I am not sure a defense attorney would want that witness on the stand for very long. And impeaching him with minor inconsistencies of various statements that may have been made, from this Court's perspective, would have had no effect."
The trial court also found defendant had failed to show prejudice: "Nothing . . . that has been mentioned here would have impacted the jury's verdict in this case, even had it been presented in a different fashion, as [new counsel] suggests it should have been presented. There just is simply no reasonable probability but for by ineffective assistance of counsel that the results in this case would have been different. [¶] There is no question, from my perspective, that with . . . approximately 20 years of experience in the criminal justice system, presiding over criminal matters and having worked as both a prosecutor and a defense attorney . . . , that this case was the strongest prosecution case that I have ever been involved in. The evidence of [defendant's] guilt is simply overwhelming, and I cannot see how any ineffective assistance of counsel, if it occurred, would have prejudiced the defendant."
We agree that defendant failed to show that his counsel's performance was deficient, or that there was a reasonable probability the result would have been different absent any deficient performance. (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Doolin, supra, 45 Cal.4th at p. 417.)
Reviewing "courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight." (People v. Scott (1997) 15 Cal.4th 1188, 1212.) "Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts." (People v. Bolin (1998) 18 Cal.4th 297, 333.) Where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, courts will not find ineffective assistance of counsel on appeal unless there could be " ' "no conceivable tactical purpose" ' " for counsel's acts or omissions. (People v. Earp (1999) 20 Cal.4th 826, 896; People v. Fosselman, supra, 33 Cal.3d at p. 581.) In particular, a trial counsel's manner of cross-examination is a matter within his or her discretion and rarely implicates ineffective assistance of counsel. (People v. McDermott (2002) 28 Cal.4th 946, 993.)
Here, the record shows that trial counsel thoroughly and competently cross-examined J.L. to discredit his testimony, including eliciting testimony suggesting J.L. spent some time covering something up because there was a 22-minute gap between the time defendant left the house and the time J.L. went outside to greet police. Counsel also asked—and J.L. could not answer—why there was an unspent bullet in the .38-caliber revolver even though J.L. had testified the gun was empty when defendant pointed it at J.L.'s head and pulled the trigger. Counsel also impeached J.L. with prior inconsistent statements, including the fact that he had previously said he " 'started shooting' " at defendant " '[a]s soon as I saw him[.]' "
Further, as the trial court noted, J.L. was a sympathetic witness, and an attractive witness for the prosecution. He was 90 years old at the time he was violently robbed and attacked in his own home. He convincingly described in detail how defendant broke in, pointed a gun at him, tied him up, ransacked his home, then shot him in the face, tackled him, wrested away his gun, and tried to kill him. He answered many difficult questions appropriately during cross-examination. Defendant argues that counsel should have asked J.L. about additional prior inconsistent statements, including whether the struggle took place on the floor or on the bed, whether J.L. pointed the gun at defendant or kept it at his side until after defendant fired, and whether defendant was standing over J.L. or lying on top of him when he pulled the trigger. In light of J.L.'s powerful, persuasive, and sympathetic testimony, counsel could have reasonably determined that further cross-examination on these additional points would not have served defendant's interests.
We also reject defendant's claim that trial counsel rendered ineffective assistance by failing to present expert testimony regarding J.L.'s potential memory issues. Defendant asserts, as he did below, that counsel should have presented the testimony of an expert who questioned J.L.'s ability to recall the incident accurately because J.L. "had periods of severe confusion while hospitalized following the incident" and suffered complications " 'that increased [his] challenges in accurately recalling the events . . . .' " As the trial court noted, however, J.L. had a good memory of the incident and his testimony was "completely consistent with all the corroborating evidence that was presented throughout the trial." In light of this, counsel could have reasonably determined that presenting the testimony of an expert witness who had never spoken with or examined J.L. would not be helpful to defendant's case. Counsel could have also reasonably determined that jurors could become even more sympathetic towards J.L. if they heard testimony about how his brain functioning suffered as a result of being shot in the face or head by defendant.
Generally, counsel's decision to call particular witnesses is "precisely the type of choice which should not be subject to review by an appellate court." (People v. Floyd (1970) 1 Cal.3d 694, 709, overruled on another ground in People v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 36.) As long as trial counsel has adequately investigated what a witness will say, courts rarely conclude that counsel's tactical decision not to call a witness amounts to ineffective assistance, because counsel cannot be faulted for deciding not to call a witness whose testimony might do more harm than good. (People v. Miranda (1987) 44 Cal.3d 57, 121, overruled on another ground in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.) Counsel did not perform deficiently in making the reasonable tactical decision not to present expert testimony regarding J.L.'s memory.
Defendant also asserts counsel failed to conduct an adequate investigation of the potential expert testimony. The record, however, suggests that counsel investigated the issue and simply decided against presenting the testimony. Counsel stated, for example, in a declaration he filed in support of a request for a continuance, that he needed additional time to develop expert testimony on the subject of "dementia and age-related mental states . . . ."
The trial court also properly found defendant failed to show prejudice. Evidence of defendant's guilt was extremely strong; the court stated that in its 20 years of experience, this was "the strongest prosecution case that I have ever been involved in." J.L. testified in detail about the incident, and video surveillance showed a black Lexus with the same front-end damage as defendant's Lexus going in and out of J.L.'s driveway. A man was seen walking near J.L.'s house wearing clothing that matched what defendant was wearing that day, and the man's shoes matched the shoes recovered from defendant's Lexus. Defendant was shot by J.L. in J.L.'s home, and J.L.'s gun was recovered from defendant's Lexus about a quarter-mile away. The front door to J.L.'s house was kicked in, the drawers in the master bedroom were open, and the closet was ransacked, strongly suggesting a burglary. The police recovered property taken from J.L.'s house and T.C.'s house in defendant's car. Defendant's DNA was found on the firearms, on the bedroom closet floor, and on J.L.'s bedspread. In light of J.L.'s coherent and persuasive testimony and the overwhelming evidence of defendant's guilt, there is no reasonable probability the result would have been different if counsel had cross-examined J.L. on additional inconsistent statements, or if he had presented expert testimony on J.L.'s potential memory issues.
2. Defendant's Right to Testify
Defendant contends he was deprived of his right to testify and the effective assistance of counsel because he was not allowed to take the stand. We reject his contention.
A defendant who wishes to testify may not be deprived of doing so even if counsel objects as long as the defendant timely and adequately asserts the right to testify. (People v. Hayes (1991) 229 Cal.App.3d 1226, 1231.) "Without such an assertion, '. . . a trial judge may safely assume that a defendant who is ably represented and who does not testify is merely exercising his Fifth Amendment privilege against self-incrimination and is abiding by his counsel's trial strategy.' " (Ibid.) "When the record fails to show such a demand, a defendant may not await the outcome of the trial and then seek reversal based on his claim that despite expressing to his counsel his desire to testify, he was deprived of that opportunity." (Id. at pp. 1231-1232.) "Absent [a] timely assertion of his desire to testify, [a defendant] is bound by his counsel's decision and must seek relief, if any is due, by showing ineffective assistance of counsel." (Id. at p. 1232.)
Here, defendant claimed in a motion for a new trial that his trial counsel "violated his fundamental right" by not allowing him to testify. Defendant stated he told counsel he wanted to testify and was "stunned" when he was not called to the stand. The trial court rejected the claim, stating defendant was not credible: "I do not accept [defendant's] representation in the declaration that he wanted to testify or that he told [trial counsel] that he wanted to testify. The facts support that just the opposite happened in that he is now making the claim at this late date. [¶] At no point before his declaration was filed, some five months after the verdict, did [defendant] ever indicate that he was being denied an opportunity to testify, that he wanted to testify, and the Court finds that to be compelling corroborative information to support my conclusion that [he] is not being truthful in his declaration."
Defendant asserts on appeal that he made his intent to testify clear when he told his prior counsel of his wish to testify during a Marsden hearing, but there was no evidence—other than his declaration, which the court found not credible—that he told his trial counsel that he wanted to testify. Instead, the record shows that defendant sat silent when counsel informed the court that his client would not be testifying. He also did not say anything when counsel stated during voir dire that defendant was not going to take the stand. Defendant's failure to protest to the court at those times, or at any time during the trial, or for five months after the trial, belied his claim and supported the court's finding that defendant did not make a "timely assertion of his desire to testify . . . ." (People v. Hayes, supra, 229 Cal.App.3d at p. 1232 [in the absence of a timely assertion, a defendant must seek relief by showing ineffective assistance of counsel]; People v. Dickens (2005) 130 Cal.App.4th 1245, 1252 [a trial court's factual findings will be upheld if supported by substantial evidence].)
We also conclude counsel did not render ineffective assistance by not calling defendant to the stand. Defendant's prior use of a weapon in conjunction with his prior conviction for assault with a deadly weapon would have provided a basis for questioning about the prior conviction. The prosecution would have also been able to cross-examine defendant regarding the stolen property that was recovered from his Lexus. "Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts." (People v. Bolin, supra, 18 Cal.4th at p. 333; People v. Earp, supra, 20 Cal.4th at p. 896 [even where counsel's strategic reasons for decisions do not appear on the record, courts will not find ineffective assistance unless there could be " ' "no conceivable tactical purpose" ' " for counsel's acts].) Because there were legitimate reasons not to present defendant's testimony to the jury, we will not second-guess counsel's tactical decision not to call defendant to the stand. (People v. Scott, supra, 15 Cal.4th at p. 1212 [reviewing courts do not second-guess reasonable tactical decisions "in the harsh light of hindsight"].)
3. Jurors' Personal Information
Defendant contends the trial court erred by failing to release juror information. We reject his contention.
Trial counsel sought the release of sealed juror information so that the defense could investigate whether any jurors had engaged in misconduct in connection with the publicity that defendant's civil lawsuit against J.L. received. The prosecutor argued it was "speculative" whether any misconduct occurred and that the privacy of jurors should not be "invaded on a serious case such as this merely for a fishing expedition." The prosecutor noted the trial court had admonished the jurors almost daily during trial to avoid looking at media coverage, and it was presumed they followed the admonitions. The court denied the motion, finding defendant had failed to establish a prima facie showing of good cause because "the showing made here is speculative at best . . . ."
Once the jury's verdict is recorded, the trial court's record of personal identifying information of individual jurors must be sealed until ordered otherwise. (Code Civ. Proc., § 237, subd. (a).) The defense may "petition the court for access to personal juror identifying information within the court's records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose." (Code Civ. Proc., § 206, subd. (g).) The petition must be "supported by a declaration that includes facts sufficient to establish good cause for the release of the juror's personal identifying information." (Code Civ. Proc., § 237, subd. (b).) "The court shall set the matter for hearing if the petition and supporting declaration establish a prima facie showing of good cause for the release of the personal juror identifying information . . . ." (Code Civ. Proc., § 237, subd. (b).)
"Absent a showing of good cause for the release of the information, the public interest in the integrity of the jury system and the jurors' right to privacy outweighs the defendant's interest in disclosure." (People v. McNally (2015) 236 Cal.App.4th 1419, 1430.) "Our Supreme Court has cautioned that requests to access confidential juror records ' "should not be used as a 'fishing expedition' to search for possible misconduct . . . ." ' " (Id. at p. 1431, citing People v. Avila (2006) 38 Cal.4th 491, 604.) We review the court's rulings regarding disclosure of juror information for an abuse of discretion. (See People v. Tuggles (2009) 179 Cal.App.4th 339, 380.)
Here, the trial court did not abuse its discretion in denying defendant's request because his juror misconduct claim amounted to a fishing expedition. Defendant asserts, as he did below, that the jurors could have seen newspaper headlines that appeared in newsstands at the courthouse, or could have read one or more of the online articles that came out during and around the time of trial. There was, however, nothing, other than speculation, that any of the jurors violated the trial court's repeated instructions not to view media coverage during the trial. (See People v. Gray, supra, 37 Cal.4th at p. 231 [jurors are presumed to follow the court's instructions].) There was also no indication that a juror who may have inadvertently seen a newspaper headline would have been negatively influenced by it in reaching a verdict in the criminal case, because the allegations in the civil lawsuit were consistent with the defense theory. In light of the lack of any evidence suggesting impropriety or misconduct, the court did not err in determining that defendant failed to meet his burden of making a prima facie showing of good cause for the release of juror information.
4. Mejia's Expert Testimony
Defendant contends the trial court erred in allowing a detective to testify as an expert on gunshot wounds. We reject his contention.
Mejia had worked for several law enforcement agencies and had received specialized training in the investigation of homicides, which included training on gunshot wounds. He also had experience working at the coroner's office and attending autopsies, where he had seen the effect of gunshot wounds on the human body. When the prosecutor asked Mejia whether a photographed wound was an entrance or exit wound, defense counsel raised an objection, which the trial court overruled. Mejia testified that he believed the wound to defendant's lower rear back was an exit wound, and that his opinion was based on the fact that there were jagged edges around the wound.
Evidence Code section 801 provides that expert testimony is admissible if it relates "to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact" and is based on information "that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates." Evidence Code section 720 requires a proponent of expert testimony to establish the qualifications of the witness if there is an objection. "The trial court's determination of whether a witness qualifies as an expert is a matter of discretion and will not be disturbed absent a showing of manifest abuse." (People v. Bolin, supra, 18 Cal.4th at pp. 321-322; People v. Johnson (1993) 19 Cal.App.4th 778, 790 [because the trial judge is the "one neutral expert in the courtroom," a reviewing court will "give great weight to the trial judge's decision as to the admission of expert testimony"]; People v. Hogan (1982) 31 Cal.3d 815, 852, overruled on other grounds in People v. Cooper (1991) 53 Cal.3d 771, 836 [abuse of discretion will be found where a witness " ' "clearly lacks qualification as an expert" ' "].)
Here, the trial court found Mejia was qualified to testify as an expert based on his knowledge, experience, and training. (Evid. Code, § 720; see People v. Bolin, supra, 18 Cal.4th at p. 322 [witness qualified to testify as an expert based on education, training and work experience as a criminalist].) Defendant notes that Mejia had no medical training, but he cites no relevant authority to support his position that medical training is a necessary prerequisite to expertise on firearms wounds. Law enforcement personnel who routinely deal with gunshot wounds and firearms could have as much or more relevant knowledge compared to a doctor who does not treat gunshot wounds on a regular basis. In fact, here, Mejia had specialized training on gunshot wounds and relevant experience in the coroner's office. The court's determination was not a manifest abuse of discretion.
The cases on which defendant relies are distinguishable. In People v. Hogan, supra, 31 Cal.3d 815, 852, for example, the witness had no training or any lab experience analyzing blood splatters, which was the proposed subject of his expert testimony. Here, in contrast, Mejia had training in wound ballistics and homicides and had experience working in the coroner's office. In People v. Williams (1992) 3 Cal.App.4th 1326, 1330-1332, disapproved on another ground by People v. Randolph (2018) 28 Cal.App.5th 602, 613-614, the trial court allowed an officer to give a lay opinion on the results of a scientific test where he lacked sufficient knowledge and training to give an opinion as an expert. The Court of Appeal held this was error because lay opinions can be based only on factual observations, such as slurred speech, and not on scientific issues that are beyond common experience. (Id. at p. 1333.) Here, in contrast, there was no challenge to the tests and procedures underlying Mejia's opinions, and he testified as an expert, not a lay, witness.
We also conclude that any error in admitting Mejia's testimony was harmless under People v. Watson (1956) 46 Cal.2d 818, 836, i.e., there was no reasonable probability of a more favorable result for defendant. (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103 [errors relating to the ordinary application of the rules of evidence are measured under the Watson standard].) Mejia testified that he believed the wound on defendant's back was an exit wound, but he was unable to identify other wounds and acknowledged it is difficult to distinguish between entry and exit wounds because they can look "very similar." Further, because there was overwhelming evidence that defendant entered J.L.'s house without his permission, and with the intent to steal from J.L. while assaulting him with a stolen gun, defendant's exact positioning as J.L. shot him was of little consequence. There is no reasonable probability the result would have been more favorable to defendant if Mejia had not been allowed to testify regarding entry and exit wounds.
5. Consecutive Term for the Robbery Count
Defendant contends the trial court violated section 654 by imposing consecutive term for the robbery count, because counts 1 and 2—attempted murder and robbery—involved an indivisible course of conduct. We disagree.
"Section 654 precludes multiple punishment for a single act or indivisible course of conduct punishable under more than one criminal statute. Whether a course of conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the 'intent and objective' of the actor. [Citation.] If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not more than one. [Citation.] If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]" (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268.)
The purpose of section 654 "is . . . to ensure that punishment is commensurate with a defendant's criminal culpability." (People v. Alvarado (2001) 87 Cal.App.4th 178, 196.) The question of whether the defendant entertained multiple criminal objectives is one of fact for the trial court, and the reviewing court must sustain the findings if there is substantial evidence to support them. (People v. Wynn (2010) 184 Cal.App.4th 1210, 1215.) The trial court "is vested with broad latitude in making its determination." (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) As such, the reviewing court views the trial court's determination "in the light most favorable to the respondent and presume[s] the existence of every fact the trial court could reasonably deduce from the evidence." (Ibid.)
Here, the trial court found that counts 1 and 2 were not part of an indivisible course of conduct. The court found that attempted murder, robbery, and burglary "all are distinguishable in their intent and their objective and not subjected to a Penal Code [section] 654 staying. [¶] The first degree burglary, the Court concludes it was clear that [defendant's] intent was to steal from an unoccupied home. The evidence showed he did not want to break into a home where there was a person inside, that he was looking for an empty home. And when he broke into that house, his intent then had to change, and did change, because there was a person in there, and it became then an intent to steal from a person. He blindfolded and bound the victim in this case and didn't want to be identified and started asking for things. [¶] At that point, the defendant didn't have a murderous intent; he had an intent to commit a robbery. Only once the victim was able to relieve himself of the blindfold and could identify [defendant] by sight, because [defendant] was not wearing a disguise himself, did [defendant's] intent, from the Court's perspective, change from an intent to rob to an intent to kill. [¶] It is clear that all three of these criminal offenses have different intents and objectives and are not subject to Penal Code Section 654."
We agree that defendant had the intent and objective of stealing from J.L. by force—as opposed to a murderous intent—when he threatened J.L. at gunpoint, tied his hands up, covered his head, and stole his belongings. He had a different intent and objective in shooting at J.L. with the intent to kill when he shot J.L. multiple times rather than flee the scene after J.L. was able to release his hands, remove the coat from his head, and obtain a gun. Substantial evidence supports the trial court's determination.
6. Enhancements
The jury found true various firearm use enhancements under sections 12022.53, subdivision (d) and 12022.5. The trial court enhanced defendant's sentence by 50 years on account of the two section 12022.53, subdivision (d) enhancements, and stayed the section 12022.5 enhancements. The court also imposed a five-year enhancement under section 667, subdivision (a) for a prior serious felony conviction for assault with a deadly weapon.
Defendant contends the matter must be remanded for the trial court to exercise its discretion to consider whether to strike one or more of the firearm use enhancements in light of Senate Bill No. 620, and whether to strike the serious felony enhancement in light of Senate Bill No. 1393. The People concede, and we agree, the matter must be remanded.
Before enactment of Senate Bill No. 620, which came into effect on January 1, 2018, a trial court was prohibited from striking firearm use enhancement allegations or findings under those sections. (Former § 12022.5, subd. (c), as amended by Stats. 2011, ch. 39, § 60, No. 2 Deering's Adv. Legis. Service, p. 244; former § 12022.53, subd. (h), added by Stats. 2010, ch. 711, § 5, No. 5E Deering's Adv. Legis. Service, pp. 323, 327.) Senate Bill No. 620 deleted that prohibition (Sen. Bill No. 620 (2017-2018 Reg. Sess.) §§ 1-2), and courts are now permitted to strike or dismiss firearm use enhancements in the interest of justice (§§ 12022.5, subd. (c), 12022.53, subd. (h)). Similarly, Senate Bill No. 1393, which came into effect on January 1, 2019, deleted the prohibition against striking a prior serious felony enhancement. (Sen. Bill No. 1393 (2017-2018 Reg. Sess.) § 2; § 1385, subd. (b)(1).) These changes apply retroactively here because the judgment in this case was not yet final when these laws came into effect. (In re Estrada (1965) 63 Cal.2d 740, 745-748, 750 [statute mitigating punishment that becomes effective before judgment is final should be applied in absence of express statement to the contrary by the Legislature]; People v. Francis (1969) 71 Cal.2d 66, 75-78 [extending Estrada holding to statutory amendment that vests discretion in trial court to impose lesser penalty].)
Remand for a proper exercise of discretion is required unless the record clearly indicates the trial court would not have exercised its discretion to strike the enhancements even if it had the authority to do so. (Cf. People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.) The People assert that given the court's comments regarding the serious nature of the offenses, it is questionable whether it would strike any of the enhancements upon remand. Nevertheless, the People concede, and we agree, that the record does not clearly indicate whether the court would have stricken the enhancements had it had the authority to do so. We therefore remand the matter for the court to exercise its discretion.
DISPOSITION
The matter is remanded for resentencing for the limited purpose of allowing the trial court to exercise its discretion to consider whether to strike one or more of the firearm use and/or serious felony enhancements. In all other respects, the judgment is affirmed.
/s/_________
Wiseman, J. WE CONCUR: /s/_________
Siggins, P. J. /s/_________
Fujisaki, J.
Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.