Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA071089, Lisa B. Lench, Judge.
Stacie R. Halpern, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Eric E. Reynolds and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, Acting P.J.
Appellant Natividad De Los Santos appeals from the judgment entered upon his conviction of attempted premeditated murder (Pen. Code, §§ 187, subd. (a) & 664, count 1), three counts of assault with a semiautomatic firearm (§ 245, subd. (b), counts 5, 6 and 7), and possession of a firearm by a felon (§ 12021, subd. (a)(1), count 4). As to counts 1, 5, 6 and 7 the jury found true the allegations that appellant personally and intentionally discharged a firearm causing great bodily injury or death (§§ 12022.5, 12022.53, subds. (b), (c) & (f)), and that the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). The court denied appellant’s motion to bifurcate trial on count 4 and appellant pled no contest to count 4. The court found appellant had suffered two prior felony convictions within the meaning of the “Three Strikes” law (§ 667, subds. (b)-(i), and § 1170, subds. (a)-(d).) Appellant’s motion for a new trial pursuant to section 1181.1, was denied.
All further statutory references are to the Penal Code unless otherwise indicated.
The court denied probation and sentenced appellant to 65 years to life in state prison. As to count 1, the court imposed a 15-year-to-life term tripled under the Three Strike law to 45 years to life, plus 20 years for the firearm-use enhancement. The terms for counts 4 and 5 were stayed pursuant to section 654. As to counts 6 and 7, the court imposed a term of 36 years to life for each offense pursuant to the Three Strikes law, plus 20 years for the firearm enhancement and 10 years for gang enhancement, to be served concurrently to the term imposed on count 1. Appellant was ordered to pay a $200 restitution fine (§ 1202.4, subd. (b)), and a parole revocation fine (§ 1202.45) in the same amount was imposed and stayed pending successful completion of parole. He was also ordered to pay a $30 court security fee (§ 1465.8, subd. (a)(1)) for each offense and a criminal conviction assessment of $30 (Gov. Code., § 70373). Appellant was given credit for 745 days of presentence custody.
Appellant filed a timely notice of appeal.
He contends that (1) the trial court’s failure to bifurcate count 4 (being a felon with a gun) denied him his right to a fair trial and violated his due process rights; (2) jury misconduct denied him the right to a fair and impartial jury; (3) he was denied due process of law because of prosecutorial misconduct; (4) the introduction into evidence of the “kite” was unduly prejudicial and should have been excluded; (5) there was insufficient evidence to support a conviction of assault with a deadly weapon against Campbell (count 6), and Verdin (count 7); (6) the court erred in failing to instruct the jury on imperfect self-defense and heat of passion; (7) the court improperly allowed impeachment of a defense witness with a misdemeanor conviction; and (8) that he received ineffective assistance of counsel. We affirm the judgment, as modified, to reflect proper assessments and credits.
FACTS
Prosecution Evidence
On September 21, 2007, at approximately 10:00 p.m., Nubia Verdin was working behind the counter as the cashier at the American Market on Lake Street in Glendale. Margaret Campbell came into the store to buy cigarettes, while her boyfriend Enrique Pinela remained outside. While Pinela was talking to a friend of Verdin’s, Jose Hernandez Gutierrez (Hernandez), appellant and codefendant Armando Martinez arrived in a beige Pontiac Grand Am, driven by appellant. Appellant and Martinez both said they were from “Burbank Trece, ” and asked Pinela where he was from. Pinela told them that he had belonged to the 18th Street gang in the past, but that he no longer did, and that he was there with his family and did not want trouble. Appellant and Martinez responded by cursing the “Westside Locos, ” a Glendale gang.
Armando Martinez was tried and convicted with appellant by the same jury. He is not a party to this appeal.
Appellant and Martinez then began hitting Pinela. Pinela fought back, and an individual named “Fernando” who had been in the street, joined the fray in an effort to help Pinela. For most of the fight, Martinez was occupied in fighting Fernando, while appellant was engaged with Pinela. At one point, Martinez resumed fighting with Pinela during which time appellant returned to the automobile and retrieved a gun. Hernandez saw appellant go to the passenger side of the Pontiac and get a gun “from under where he places his feet.”
When appellant returned, he pointed the gun close to Pinela’s right temple and pulled the trigger two or three times, which resulted only in clicking noises. Campbell was scared but tried to stop the fight. She returned to the store and joined Verdin behind the counter. Pinela then ran into the store, closely followed by appellant. Appellant stood in the doorway, pointed the gun at Pinela, and fired several shots in his direction. At one point, Pinela ran in front of a counter where Verdin and Campbell were standing. Verdin heard the gunshots and was scared that she would get shot. One bullet hit a container of tomato sauce or ketchup, which spattered its contents onto Pinela. That bullet and another bullet were found in the area where Pinela had run, and another was found in the back of the store. Both assailants then yelled out “Burbank Trece” and left the scene.
Witnesses were shown a security video of the incident. Verdin testified after seeing the video that the fight was initiated by one of the men “socking” Pinela. Campbell testified after seeing the video that she did not recall seeing a gun but that “[t]he video show[ed] it.” Verdin identified appellant as the shooter, but was unable to identify his companion. Hernandez identified both defendants. He was 100 percent sure of his identification of appellant as the driver and the shooter, but only 50 percent sure of his identification of Martinez.
Burbank Police Detective Mark Stohl was called as the prosecution’s gang expert. He testified that the Burbank Trece gang had more than 100 members in the past but its membership was shrinking, and there were only 10 to 15 active members between 2004 and 2008. Burbank Elmwood gang had between 10 and 20 active members in the same time period. The primary activities of both gangs are vandalism, burglary, firearms possession, drug sales, auto theft, witness intimidation, robbery, shootings, mayhem, assault with a deadly weapon and attempted murder.
Detective Stohl testified that appellant, whose gang moniker was “Cholo, ” had been a member of Burbank Elmwood for many years. He based his opinion on photographs of appellant showing numerous gang tattoos, his own experience investigating gangs, and discussions with other Burbank gang investigators. Martinez, whose gang moniker was “Baby Boy, ” had been a member of the Burbank Trece gang for many years. Detective Stohl based this opinion on a “Burbank 13” tattoo visible on Martinez’s back, and discussions with other detectives familiar with the Burbank Trece gang.
Detective Stohl testified that gang members knew their boundaries and those of rival gangs, and controlled their territory with violence and intimidation. Upon leaving his own territory, a gang member would carry a weapon. Ordinarily, a “gang gun” would be kept in a safe location, usually not a member’s house, and would be periodically moved from location to location, to be available when a rival gang member was seen in the area.
Respect was very important to gangs. Disrespect would be punished, while respect earned respect in return. Committing crimes enhanced the gang’s respect and allowed gang members to ascend the gang hierarchy. A Burbank Trece gang member could gain credit from his gang by yelling out the gang’s name at the time of a shooting.
When gang members carried out a “mission”—a crime committed by more than one gang member—they would assign roles, such as driver, lookout, or shooter. A gang member must support fellow gang members or lose face, and would be branded a coward and weak if he did not back his “homies” or friends. The result could be that the member would be “green-lighted, ” meaning targeted for assault by any member of any gang.
Traditionally, the Burbank Trece and Burbank Elmwood gangs were enemies, but in June 2007, Detective Stohl encountered Burbank Trece member Michael “Demon” Garcia in a car driven by Burbank Elmwood member Tran “Chinito” Nguyen. Burbank Trece and Burbank Elmwood both considered the Westside Locos, a Glendale based street gang, to be an enemy, and American Market was located in the heart of Westside Locos territory. The rivalry was more intense with Burbank Elmwood, and between 2001 and 2007, Burbank Elmwood and Westside Locos waged war with regular shootings. Detective Stohl testified that asking, “Where are you from” is a typical gang challenge that precedes an assault, usually with fists, bats, clubs, guns, knives, or any type of weapon, and the wrong answer would usually precipitate an assault in kind.
North County Correctional Facility deputies recovered a “kite” from appellant while he was in custody awaiting trial. A “kite” is a small piece of paper containing handwritten notes that inmates pass to each other within the jail to avoid detection by the authorities. The kite recovered from appellant was a “roll call” and included names, booking numbers, gang affiliations, monikers, court and court date. Roll call kites are usually in the possession of the inmate who is the shot caller and/or his right-hand man. The shot caller is the top ranked gang member housed in that particular location and directs all gang activities. The only gang member inmates whose personal information is not included on the roll call sheets are the shot caller and his right-hand man. Appellant’s name and personal information were not listed on the “roll-call” in his possession.
Defense Evidence
In his defense, appellant called Rick Pruett, who testified that he had been acquainted with appellant since 2003, and had employed appellant in his home repair business. Pruett testified that appellant was a hard worker, and he had no problems with appellant. When Pruett saw appellant’s tattoos, he worried that clients might feel uneasy about letting him into their homes, but Pruett received no complaints about him. Pruett did not think appellant was an active gang member, and would not have employed him if he were. Pruett admitted to having convictions for petty theft in 2003 and contracting without a license in 2008.
Rebuttal
The prosecution called Martinez’s mother, Corina Delgado. She testified that Martinez was arrested after he turned himself in on September 27, 2007. That September, she had season tickets to the Dodgers games, and Martinez picked some up from her on September 25, 2007. She did not know if her son had gone to the game.
Stipulations
The parties stipulated that the Pontiac Grand Am was registered to Theresa Corona, appellant’s mother, and further stipulated that if appellant’s mother had been called to testify, she would testify that appellant went to a Dodgers game on September 26, 2007, the day before his arrest.
DISCUSSION
I. Bifurcation of Count 4
Appellant’s motion to bifurcate trial on count 4, possession of a firearm by a felon, was denied. Appellant pled no contest to count 4. He contends he was denied due process and a fair trial because he would have been prejudiced by disclosure of his status as a felon to the jury. We disagree.
A not guilty plea puts every element of the charged offense in issue. (People v. Balcom (1994) 7 Cal.4th 414, 422.) A defendant’s tactical decision not to contest an essential element of the offense does not relieve the prosecution of its burden of proving every element. (Estelle v. McGuire (1991) 502 U.S. 62, 69.) The California Constitution was amended in 1982 by Proposition 8, referred to as the Victims’ Bill of Rights. As relevant here, it provides: “When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.” (Cal. Const., art. I, § 28, subd. (f), par. (4).) As such, the prosecution was required to prove the prior conviction as an element of the charged offense.
In People v. Valentine (1986) 42 Cal.3d 170 (Valentine), our Supreme Court held that article I, section 28, subdivision (f) of the California Constitution, required that the jury be advised that the defendant has suffered a prior felony if such felony conviction is an element of a current charge. Under Valentine, the defendant has the option of either stipulating to felony status and thereby keeping the nature of the prior convictions from the jury, or forcing the prosecution to prove up the prior before the jury. (Valentine, supra, at p. 173.)
In People v. Sapp (2003) 31 Cal.4th 240 (Sapp), the court again addressed the interpretation of article I, section 28, subdivision (f) of the California Constitution and referring to the rule established in Valentine stated: “Valentine... allows the trial court only two options when a prior conviction is a substantive element of a current charge: Either the prosecution proves each element of the offense to the jury, or the defendant stipulates to the conviction and the court ‘sanitizes’ the prior by telling the jury that the defendant has a prior felony conviction, without specifying the nature of the felony committed.” (Sapp, supra, at p. 262.)
Appellant nevertheless argues that bifurcation was appropriate, and the court erred because it did not “carefully exercise its discretion whether to try an ex-felon count separately.” But the “balancing” language appellant relies on in Valentine “pertains not to a motion to bifurcate trial on a charge that requires proof of a prior felony conviction... but to a motion to sever charges properly joined under section 954.” (Sapp, supra, 31 Cal.4th at p. 261.) Here, appellant was offered the two choices set forth in Valentine, and he chose the option to have the details of the prior kept from the jury. There was no error.
II. Juror Misconduct
Appellant claims he is entitled to a new trial based on two separate instances of juror misconduct. At the outset, we note appellant has conceded that his counsel failed to request a mistrial on grounds of juror misconduct. As such, the claim is waived on appeal. (People v. Stanley (2006) 39 Cal.4th 913, 950.) We nevertheless consider the issue and find the contention lacks merit.
The first incident of which appellant complains occurred during voir dire. Prospective Juror No. 15 informed the court and counsel at sidebar that she had negative feelings towards gangs because she had lost two students to gang activity when she worked in the school system. She was also concerned about disclosing personal information in open court and possible gang retaliation. She said that other jurors shared her concerns about disclosing personal information. Prospective Juror No. 15 was ultimately dismissed for cause, because it was not the court’s intention “to put people through emotional trauma as a result of being on a jury.” Appellant contends the court should have made further inquires to determine whether other prospective jurors had safety concerns.
Voir dire plays a critical function in assuring the criminal defendant that his or her Sixth Amendment right to an impartial jury will be honored. (Rosales-Lopez v. U.S. (1981)451 U.S. 182, 188.) Without an adequate voir dire, the trial judge cannot fulfill his or her responsibility to remove prospective jurors who will not be able to follow the court’s instructions and evaluate the evidence impartially. (Ibid.) We review appellant’s challenge to the trial court’s decision not to conduct a further investigation here under the abuse of discretion standard. (People v. Cleveland (2001) 25 Cal.4th 466, 478 [trial court has discretion on whether to investigate the possibility of juror bias or misconduct].)
At the outset of voir dire, the court instructed all prospective jurors of the measures taken to preserve the confidentiality of their personal information. Prospective jurors would only be referred to by number, and no questions regarding their home address, business address, telephone numbers, or other personal information would be asked of them. The court listened to prospective Juror No. 15’s concerns regarding the disclosure of personal information and her safety. There is nothing in the record to indicate that any other prospective juror disclosed any personal identifying information or expressed any similar concerns. As such there was no reason for the court to conduct any further inquiries based on prospective Juror No. 15’s concerns. Additionally, no prejudice can be shown as prospective Juror No. 15 was ultimately dismissed from the panel.
The second incident occurred during the first day of trial. Juror No. 9 informed the court that she overheard some comments. The first comment occurred when she was in an elevator with two other jurors. One of the witnesses said something to a companion and she believed it was “about jury selection something—it was hard to tell.” On a separate occasion later, she overheard the same witness say, “Don’t they know someone’s life is on the line?” While walking to her car at the end of the day, a different witness asked Juror No. 9 if she was on jury duty and how much she was paid. Appellant contends that these incidents caused the jurors to be scared and nervous, and to consider him dangerous, which denied him his right to a fair and impartial jury.
The court conducted an extensive investigation of the incidents. The first comment was not addressed to Juror No. 9 and it occurred in the presence of other people. She did not hear it clearly. She told the court that the incidents made her “a little uncomfortable” but would not affect her ability to sit as a juror in the case. None of the other jurors heard the comments and only learned of the incidents from Juror No. 9. They also told the court that the incidents would not affect their ability to sit as a juror in the case. Juror No. 9 was questioned again and confirmed that no other incidents had taken place.
The court made it clear it would not tolerate any improper behavior towards the jurors and asked defense counsel to communicate this to the families. Juror No. 9 was instructed to refrain from speaking to other jurors, and to communicate directly with the court if she felt her “level of discomfort” rise. The entire jury was instructed to inform the court or the bailiff of any matter in the future, and not to discuss it amongst themselves.
The party moving for a new trial on the ground of juror misconduct “must establish both that misconduct occurred and that the misconduct was prejudicial.” (Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 57 (Ovando).) In this case, the trial court found that there was no juror misconduct. We accept the trial court’s credibility determinations and findings of fact because they are supported by substantial evidence. (People v. Nesler (1997) 16 Cal.4th 561, 582.)
But even if misconduct occurred the presumption of prejudice that arises from such misconduct has been rebutted, because based on our examination of the record, including (1) the juror’s conduct, (2) the contact with the witnesses, (3) the instructions the jury received, and (4) the nature and strength of the evidence, there is no substantial likelihood that one or more jurors were actually biased against the defendant.
First, Juror No. 9 did not seek out the witnesses and initiate contact. The only direct contact occurred when a witness approached her and asked if she got paid for serving on a jury. Because the incidents occurred outside the courtroom, the juror mistakenly believed she could discuss them with the other jurors. She immediately advised the court when the other jurors told her to do so, and the other jurors’ accounts of their conversations with her were consistent with what she told the court.
Second, the circumstances of the contact are ambiguous. There is nothing to indicate that either comment was intended specifically for Juror No. 9 or for any of the members of the jury. Nor is there anything to indicate that the other person knew he was talking to a juror from this case, when she was asked general questions related to jury service and payment. Significantly, each juror said the incidents would not affect their ability to remain on the jury.
Third, immediately after the incident came to the court’s attention, the jurors were again instructed individually and collectively, not to converse with each other, and to bring all matters to the court’s attention. Before deliberations, the jury was instructed to decide the case based only on evidence presented during trial (CALCRIM No. 200) and were to disregard anything they “saw or heard when the court was not in session, even if it was done or said by one of the parties or witnesses” (CALCRIM No. 222).
Finally, the evidence of appellant’s guilt was overwhelming. A security videotape obtained from American Market that captured the incident was shown to the jury and appellant was positively identified by eyewitnesses.
Appellant has not demonstrated prejudice sufficient to warrant a new trial.
III. Prosecutorial Misconduct
Appellant claims the prosecutor intentionally elicited information regarding appellant’s custody status, and the inflammatory effect of the testimony resulted in a denial of due process.
Jose Hernandez was outside the store, when appellant and Martinez confronted Enrique Pinela. Hernandez was called as a witness for the prosecution. Hernandez was nervous about testifying at trial, as he had been during the preliminary hearing. He felt intimidated by Martinez during the preliminary hearing. At that time he still lived in the area and he knew gangs were involved in this case. Hernandez was asked, “Did something happen as far as your circumstance after the preliminary hearing that makes you feel a little safer talking about what you observed?” Hernandez responded, “That I shouldn’t be afraid because they could not do anything to me because they were in custody.” Hernandez was immediately asked, “Well, did you move after you testified at the preliminary hearing?” Hernandez testified that he was no longer living at the same location.
To preserve a claim of prosecutorial misconduct for appeal, a defendant must object and seek an admonition if an objection and admonition would have cured the harm. (People v. Hill (1998) 17 Cal.4th 800, 820.) Appellant did not object at trial to this questioning and though the claim has been forfeited, we consider the issue and find no misconduct.
“Conduct by a prosecutor that does not violate a court ruling is misconduct only if it amounts to ‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury’ [citations] or ‘is so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process’ [citation].” (People v. Silva (2001) 25 Cal.4th 345, 373.) A finding of misconduct does not require a determination that the prosecutor acted in bad faith or with wrongful intent. (People v. Crew (2003) 31 Cal.4th 822, 839.)
Here, the prosecutor did not ask a general question regarding Hernandez’s relative comfort level in answering questions now as opposed to the time of the preliminary hearing. His question was specifically tailored to elicit whether something was different in Hernandez’s circumstances, namely, whether he had moved. Hernandez’s response was unexpected. The prosecutor’s immediate follow-up question is further indication of the anticipated answer the prosecutor expected from the preceding question. In sum, there is no evidence the prosecutor engaged in misconduct.
IV. Kite Evidence
Appellant contends that introduction into evidence of a kite recovered from appellant on May 23, 2009, while in custody, denied him due process of law because it was prejudicial, highly inflammatory and not relevant in time to the crime that occurred on September 21, 2007.
Appellant’s gang membership at the time of the shooting was at issue because counts 1, 5, 6 and 7 included gang allegations. Detective Stohl testified that appellant had numerous tattoos at the time of his arrest indicating membership in the Burbank Elmwood gang. Appellant conceded the tattoos did indicate gang membership but that he was no longer active. The prosecutor sought to introduce the kite to establish appellant’s continuing gang involvement a year and a half after the shooting.
The court ruled the kite was relevant and its probative value outweighed its prejudicial impact. The court stated the kite was relevant “given the positions of the parties concerning at least Mr. De Los Santos’ prior and then the subsequent involvement in gangs, but his lack of involvement on September 21, 2007.” We find no error in admission of this evidence.
“In reviewing the ruling of the trial court, we reiterate the well-established principle that ‘the admissibility of this evidence has two components: (1) whether the challenged evidence satisfied the “relevancy” requirement set forth in Evidence Code Section 210, and (2) if the evidence was relevant, whether the trial court abused its discretion under Evidence Code Section 352 in finding that the probative value of the [evidence] was not substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice.’ [Citation.]” (People v. Heard (2003) 31 Cal.4th 946, 972.) We review the trial court’s rulings on relevance and the admission of evidence for an abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1195.)
“The test of relevancy is whether the evidence tends, logically, naturally, or by reasonable inference to establish a material fact, not whether it conclusively proves it.” (People v. Yu (1983) 143 Cal.App.3d 358, 376.) One of the ways Hispanic gang members from Southern California identify themselves to other inmates is by putting their information on a kite and reporting to the shot-caller for that housing location. The “roll call” kite was found on appellant’s person. The fact that appellant’s name was not listed on the roll call was indicative of his status as either a “shot-caller” or the shot-caller’s right hand man. The kite was evidence of appellant’s position in the gang hierarchy within the prison system.
The jury heard testimony that gang members lived for respect as it represented their reputation, and the more respect a gang member had, the higher up he was within the gang. Respect was gained by protecting your own turf, and committing a crime in a rival gang’s territory. A jury could reasonably infer from appellant’s status as shot-caller (or right-hand man) that he was respected within the prison system. A jury could also reasonably infer that appellant had gained that respect by committing a gang related crime, i.e., the shootings at the American Market.
For purposes of evaluating the admission of evidence under Evidence Code section 352, “‘“evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors’ emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.” [Citation.]’” (People v. Branch (2001) 91 Cal.App.4th 274, 286; see People v. Crew, supra, 31 Cal.4th at p. 841 [evidence “was not unduly prejudicial because it would not arouse an emotional bias against defendant in the jury”].)
Nothing about the kite would inflame the emotions of the jury to punish appellant because of the jurors’ emotional reaction to it. The kite did not show evidence of other crimes, nor was it presented for that purpose. The jury was instructed that it could consider the gang evidence for the limited purpose of the intent, purpose and knowledge necessary to prove the gang enhancement, appellant’s motive to commit the crimes charged, or the credibility of witnesses. Nothing indicates the jury did otherwise.
Appellant’s claim of denial of due process is unavailing. Appellant fails to demonstrate that this is one of those “rare and unusual occasions” in which the admission of evidence amounts to a due process violation. (People v. Albarran (2007) 149 Cal.App.4th 214, 232.) To make this showing, appellant would have to establish not only that there were no permissible inferences to be drawn from the evidence, but also that its admission so infected the case that the entire trial was rendered fundamentally unfair. (Id. at pp. 229–230.) In light of the other evidence of gang involvement and the strong evidence of appellant’s guilt, it cannot be said that admission of the kite served to render the trial fundamentally unfair.
V. Assault with a Deadly Weapon Against Campbell and Verdin
Appellant contends that there was insufficient evidence to support convictions for assault with a semiautomatic firearm against Campbell and Verdin.
When determining whether the trial evidence was sufficient to sustain a conviction, “our role on appeal is a limited one.” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We review the entire record in the light most favorable to the judgment to determine whether a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (Ibid.) Where the circumstances reasonably justify the trier of fact’s findings, a reviewing court’s conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment’s reversal. (People v. Kraft (2000) 23 Cal.4th 978, 1053–1054.) Thus, unless it is clearly shown that “on no hypothesis whatever is there sufficient substantial evidence to support the verdict” the conviction will not be reversed. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
An assault is “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) Assault is a general intent crime that does not require a specific intent to injure the victim or a subjective awareness of the risk that an injury might occur. (People v. Williams (2001) 26 Cal.4th 779, 788, 790.) The mens rea of the offense of assault with a firearm does not require a specific intent to inflict a particular harm. (In re Tameka C. (2000) 22 Cal.4th 190, 198.) A victim taking effective steps to avoid injury does not negate a defendant’s “present ability” to apply force with a firearm to a person. (People v. Raviart (2001) 93 Cal.App.4th 258, 266.)
Here, there was substantial evidence to support the jury’s findings. The evidence established that appellant retrieved a gun from his automobile, pointed it at Pinela’s temple, and pulled the trigger. The gun failed to discharge and Pinela ran inside the store. Meanwhile, Campbell and Verdin were hiding inside the store in the vicinity of the counter area. Appellant followed Pinela into the store and commenced firing in Pinela’s direction. In attempting to evade appellant, Pinela ran past the counter where Campbell and Verdin were hiding. Appellant pointed the gun at Pinela and discharged the gun a number of times. Shell casings and expended bullets were recovered from various areas of the interior of the store.
In sum, the jury heard evidence that Campbell and Verdin were in the line of fire, even if only briefly, while appellant was shooting a semiautomatic firearm inside the store. A jury’s finding will not be reversed unless it is clearly shown that under no hypothesis is there sufficient evidence to support it. (People v. Martinez (2008) 158 Cal.App.4th 1324, 1329.) As long as substantial evidence supports the jury’s finding, the possibility that the jury could reasonably have reached a different conclusion does not justify reversal. (People v. Sullivan (2007) 151 Cal.App.4th 524, 564; People v. Perez (1992) 2 Cal.4th 1117, 1124.) We are satisfied that substantial evidence supports appellant’s convictions on these counts.
VI. Jury Instructions
Appellant contends that the trial court should have instructed the jury on heat of passion or imperfect self-defense, both of which theories he contends are supported by the evidence, and which could have resulted in an attempted voluntary manslaughter conviction rather than attempted murder. We disagree.
A trial court has a sua sponte duty to instruct on all lesser included offenses that find substantial support in the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 148–149, 162 (Breverman).) “[T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is ‘“evidence from which a jury composed of reasonable [persons] could... conclude[]”’ that the lesser offense, but not the greater, was committed. [Citations.]” (Ibid.) Thus, the trial court properly refuses to instruct on a lesser included offense when there is insufficient evidence to support the instruction. (People v. Daniels (1991) 52 Cal.3d 815, 868.)
Attempted voluntary manslaughter is a lesser included offense of attempted murder. (People v. Manriquez (2005) 37 Cal.4th 547, 583; People v. Gutierrez (2003) 112 Cal.App.4th 704, 708.) Attempted voluntary manslaughter, like attempted murder, requires proof of the intent to kill. (People v. Montes (2003) 112 Cal.App.4th 1543, 1546–1552.) Unlike attempted murder, however, it does not require proof of malice. (Id. at p. 1548.) The element of malice is presumptively negated by a sudden quarrel or heat of passion, or when a defendant attempts to kill in an “‘unreasonable, but good faith, belief that deadly force is necessary in self-defense.’” (People v. Manriquez, supra, at p. 583.)
“On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense.” (People v. Cole, supra, 33 Cal.4th at p. 1215; People v. Waidla (2000) 22 Cal.4th 690, 733.)
A. Imperfect Self-Defense
Unreasonable or imperfect self-defense is not an affirmative defense, but rather a shorthand description of one type of voluntary manslaughter. (People v. Barton (1995) 12 Cal.4th 186, 200; People v. Cruz (2008) 44 Cal.4th 636, 664.) Unreasonable self-defense requires the defendant to have an actual, if unreasonable, belief that he is in imminent danger to his life or of suffering great bodily injury. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) In such circumstances, the defendant is deemed to have acted without malice and cannot be convicted of murder (or attempted murder) but only of (attempted voluntary) manslaughter. (Ibid.)
The evidence here does not show that appellant believed he was in imminent danger of being killed or suffering great bodily injury and that the immediate use of deadly force was necessary to defend against the danger. It is undisputed that Pinela was never armed. Even if Pinela was getting the upper hand in the fight against appellant and Martinez, which may have necessitated the retrieval of the gun, appellant’s pursuit of Pinela into the market and discharge of the gun multiple times in the direction of a fleeing Pinela, undermined that claim. Thus, appellant failed to show that he believed he faced an imminent peril that had to be “‘“instantly dealt with.”’” (In re Christian S. (1994) 7 Cal.4th 768, 783, italics omitted.)
In any event, we conclude that any error in the trial court’s failure to instruct on unreasonable self-defense was harmless under the test of People v. Watson (1956) 46 Cal.2d 818 (Watson), i.e., that appellant would not have achieved a more favorable outcome had his requested instruction been given. (People v. Blakeley (2000) 23 Cal.4th 82, 93 [failure to instruct on unreasonable self-defense is state law and subject to the harmless error test of Watson, supra, at p. 836].) Appellate review under Watson “focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.” (Breverman, supra, 19 Cal.4th at p. 177.)
The eyewitness identifications and accounts of the incident, particularly by Verdin and Hernandez, the gang affiliations which were yelled out by appellant and Martinez, and the videotape of the incident retrieved from the market constitutes very strong evidence. Appellant did not testify. There was no evidence that Pinela was the aggressor, or that appellant was threatened by Pinela at any time. Thus, any error was harmless, and appellant’s argument fails.
B. Heat of Passion
“Heat of passion arises when ‘at the time of the [attempted] killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.’ [Citations.]” (People v. Barton (1995) 12 Cal.4th 186, 201 (Barton).) Both sufficient provocation and heat of passion must be shown. (People v. Steele (2002) 27 Cal.4th 1230, 1252 (Steele).) The provocation must arise from the victim. (People v. Gutierrez, supra, 112 Cal.App.4th at p. 709.) Unless the People’s evidence suggests there was provocation, the burden is on the defendant to establish sufficient evidence of provocation and heat of passion. (People v. Rios (2000) 23 Cal.4th 450, 460–462; People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1704.)
The heat of passion requirement for manslaughter contains an objective component and a subjective one. The defendant must actually and subjectively act under the heat of passion. The circumstances giving rise to the heat of passion, however, are also viewed objectively, requiring that the “passion” be one that would “‘naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances.’” (Steele, supra, 27 Cal.4th at p. 1252.) No defendant can have recourse to his own standard of conduct and declare his passions were aroused; rather, the jury must believe the circumstances were sufficient to arouse the passion of a reasonable man. (Ibid.)
Appellant contends that there was substantial evidence that Pinela was the aggressor and that Pinela’s conduct was sufficiently provocative such that it would cause the “‘ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection.’” (See Barton, supra, 12 Cal.4th at p. 201.) Appellant argues that it is not clear who initiated the confrontation, or who threw the first punch. Appellant wants the jury to consider Pinela was a heavy drinker, a gang member, and was loitering outside the market at night.
The record does not support any of appellant’s contentions. The evidence showed that appellant and Martinez drove up to the market where Pinela was waiting outside while his girlfriend, Campbell, went inside to purchase cigarettes. Appellant and Martinez engaged in a fistfight with Pinela. Appellant then retrieved a gun from his car, and when it failed to initially discharge when placed to Pinela’s temple, appellant struck Pinela with the gun. Appellant then chased Pinela into the market and discharged a semiautomatic weapon multiple times in Pinela’s direction.
There was no evidence that Pinela provoked appellant in any way. “The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim.” (People v. Lee (1999) 20 Cal.4th 47, 59.) Contrary to appellant’s assertion, there was ample evidence that appellant was the aggressor, from eyewitnesses Hernandez and Verdin. Confirmation that appellant threw the first punch was provided by the security videotape which captured the incident and was shown to the jury. Appellant’s reference to Pinela’s gang affiliation is not helpful. “Reasonable people do not become homicidally enraged when hearing” a fleeting gang reference or challenge. (People v. Avila (2009) 46 Cal.4th 680, 706.) There was testimony that Pinela said he had been with the 18th Street gang, but that he no longer had anything to do with gangs. Furthermore, it was appellant and codefendant Martinez who issued the gang challenge. A claim of provocation cannot be based on events for which appellant is responsible. (See People v. Oropeza (2007) 151 Cal.App.4th 73, 83.) Thus, not only was there a lack of evidence of sufficient provocation by the victim, there was no evidence appellant was disturbed by passion to the degree that he acted rashly and without deliberation or reflection.
In light of the totality of the evidence, we conclude that an instruction on attempted voluntary manslaughter based on heat of passion was not warranted, and any error in the trial court’s failure to so instruct was harmless. Under the harmless error test of People v. Watson, supra, 46 Cal.2d 818 (Watson), it is not “reasonably probable” that appellant would have obtained a more favorable outcome at trial had a heat of passion instruction been given. (Id. at p. 836; see also People v. Moye (2009) 47 Cal.4th 537, 557–558.)
VII. Impeachment
Appellant contents that the trial court erred when it allowed defense witness Rick Pruett to be impeached with evidence of misdemeanor convictions for petty theft and contracting without a license.
“It is well established that issues or theories not properly raised or presented in the trial court may not be asserted on appeal, and will not be considered by an appellate tribunal.” (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 117.) As an initial matter, the record indicates that appellant did not object to impeachment with the petty theft conviction. Therefore the claim has been forfeited. We nevertheless consider the issue, and find no error.
The prosecutor sought to impeach the witness with misdemeanor convictions for contracting without a license and petty theft. Appellant argued that contracting without a license was not a crime of moral turpitude but he did not object to impeachment with the petty theft conviction. The trial court ruled both were admissible. In response to appellant’s questions, the witness confirmed that he had been convicted of both misdemeanor offenses.
Conduct underlying a misdemeanor conviction which involves moral turpitude is relevant to a witness’s credibility and is admissible for impeachment subject to the discretion of the trial court under Evidence Code section 352. (People v. Wheeler (1992) 4 Cal.4th 284, 292, 295 (Wheeler).) Petty theft is a crime of moral turpitude (People v. Mendoza (2000) 78 Cal.App.4th 918, 925) as is contracting without a license (Harrington v. Department of Real Estate (1989) 214 Cal.App.3d 394, 400–402).
Under Wheeler, only the underlying facts of the misdemeanor conviction, not the conviction, are admissible. (Wheeler, supra, 4 Cal.4th at pp. 297–300.) Here, after the court ruled that the evidence of both crimes was admissible, counsel both agreed to admission of evidence of the fact of conviction rather than the underlying conduct. As such any error was invited. (See, e.g., People v. Williams (2008) 43 Cal.4th 584, 629.)
Finally, we would find any error harmless. The witness admitted convictions for petty theft and contracting without a license, both offenses constituting conduct reflecting moral turpitude. In light of the weight of the evidence against appellant, had the witness been impeached with the underlying conduct rather than the actual conviction, it is not reasonably probable that appellant would have received a more favorable outcome. Thus, the error was harmless. (People v. Castro (1985) 38 Cal.3d. 301, 319; People v. Watson, supra, 46 Cal.2d at p. 836.)
VIII. Ineffective Assistance of Counsel
Appellant contends his trial counsel provided ineffective assistance by failing to (1) request a mistrial after alleged juror misconduct; (2) object to the introduction of evidence regarding appellant’s custody status; and (3) object to the People’s expert’s reliance on hearsay evidence to form his opinion.
To establish ineffective assistance of counsel, a defendant must prove that (1) counsel’s representation was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, but for counsel’s failings, the defendant would have received a more favorable result. (Strickland v. Washington (1984) 466 U.S. 668, 687–688, 694; People v. Waidla, supra, 22 Cal.4th at p. 718.)
A. Alleged Juror Misconduct
Appellant contends his trial counsel was ineffective for failing to request a mistrial but concedes that such a request would have been futile given that the trial court had rejected defense counsel’s motion to dismiss Juror No. 9.
Appellant’s concession is correct and fatal to this claim of ineffective assistance. The court conducted an extensive inquiry into the circumstances and did not dismiss Juror No. 9. Therefore, it is highly unlikely the court would have granted a mistrial motion on this basis. The Sixth Amendment does not require counsel to raise futile motions. (People v. Gutierrez (2009) 45 Cal.4th 789, 804–805; People v. Frye (1998) 18 Cal.4th 894, 985.) Thus, where a motion would have been futile, there can be no claim of ineffective assistance of counsel.
B. Appellant’s Custody Status
Appellant contends that his trial counsel should have objected to a question posed by the prosecutor which elicited an unexpected response that revealed appellant’s custody status.
A reviewing court must be highly deferential in scrutinizing trial counsel’s performance. (People v. Lewis (1990) 50 Cal.3d 262, 288.) A fair assessment of counsel’s performance requires that every effort be made to eliminate the distorting effects of hindsight. (Ibid.) Because of the difficulties inherent in making an evaluation of trial counsel, a reviewing court must indulge the presumption that trial counsel’s performance comes within the wide range of reasonable professional assistance and that actions taken in defense of the accused were a matter of sound trial strategy. (Ibid.) Unless there can be no satisfactory explanation for counsel’s actions, where the appellate record sheds no light on why counsel acted or failed to act in the manner challenged, the case is generally affirmed on appeal. (People v. Ledesma (1987) 43 Cal.3d 171, quoting People v. Pope (1979) 23 Cal.3d 412, 426.)
The witness’s response to the prosecutor’s question was not anticipated by the parties. Appellant’s trial counsel could have objected to the single reference to appellant’s custody status, but doing so could also have focused the jury’s attention on the statement. Therefore, it was a reasonable trial strategy to refrain from objecting. Additionally, appellant was not prejudiced because evidence was introduced (the kite), and testimony was elicited from other witnesses, from which the jury would have learned that appellant was in custody. There is no reasonable probability appellant would have received a better result but for appellant’s trial counsel’s failure to object to the prosecutor’s question.
C. Testimony Regarding Pictures of Appellant
Detective Stohl relied in part on photographs showing appellant’s gang tattoos, and of appellant in the company of other gang members, to form his opinion that appellant was an active gang member at the time of the commission of the offenses. Detective Stohl admitted on cross-examination that he did not know when appellant got the tattoos or when some of the photographs were taken. Appellant’s trial counsel did not object to the detective’s testimony and appellant now claims this constituted ineffective assistance of counsel.
An expert may testify as to his or her opinions on relevant matters and, if questioned, may relate the information and sources on which they relied in forming those opinions, including hearsay. (People v. Gardeley (1996) 14 Cal.4th 605, 618–619.) Here, no error in fact occurred and “defense counsel was not ineffective in making no objection” (People v. Thomas (1992) 2 Cal.4th 489, 531), since “counsel is not required to advance unmeritorious arguments on the defendant’s behalf.” (People v. McPeters (1992) 2 Cal.4th 1148, 1173.)
A court should proceed directly to the issue of prejudice if it is easier to dispose of an ineffectiveness claim on that basis. (Strickland v. Washington, supra, 466 U.S. at p. 697; People v. Fairbank (1997) 16 Cal.4th 1223, 1241; People v. Holt (1997) 15 Cal.4th 619, 703; In re Fields (1990) 51 Cal.3d 1063, 1079.)
Counsel’s failure to object to the testimony was not prejudicial. The jurors were instructed that they were neither bound by nor required to accept an expert’s opinion, and that each opinion should be given the weight that they felt it deserved. In addition to the photographs, Detective Stohl based his opinion that appellant was an active gang member on his own past experiences with gangs and his discussions with other Burbank gang investigators. There were eyewitness identifications and testimony that appellant and codefendant Martinez yelled out their gang affiliations when they confronted Pinela. Given the instructions and the overwhelming weight of the evidence against appellant, there is no reasonable probability that appellant would have received a better result but for his counsel’s failure to object to the gang photographs.
IX. Amendment of Abstract to Reflect Proper Assessments
The People contend that the abstract of judgment must be amended to reflect the proper criminal conviction assessment pursuant to Government Code section 70373. The minute order and abstract of judgment reflect that the trial court imposed one $30 criminal conviction assessment, but the court failed to impose any such assessment. The People contend that the proper assessment should be $150 because appellant suffered five convictions.
Government Code section 70373 provides in part: “To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463 of the Penal Code, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony and in the amount of thirty-five dollars ($35) for each infraction.” (Gov. Code, § 70373, subd. (a)(1).)
The language in Government Code section 70373, subdivision (a)(1) which provides that “an assessment shall be imposed” is mandatory. Because the trial court had no discretion to refuse to impose the assessment, the failure to order them as part of the oral pronouncement constituted an unlawful sentence. (People v. Turner (2002) 96 Cal.App.4th 1409, 1414.)
The People did not object at the sentencing hearing to the court’s omission of the assessment under Government Code section 70373, subdivision (a)(1). Although the People’s failure to object to a discretionary sentencing choice will bar its correction on appeal (People v. Tillman (2000) 22 Cal.4th 300, 303), an exception to this forfeiture rule exists for “obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings.” (People v. Smith (2001) 24 Cal.4th 849, 852 (Smith).) Thus, in Smith, the high court held that where the trial court omits the imposition of, or imposes the erroneous amount for, a mandatory parole revocation fine under section 1202.45, the appellate court may correct the error even if the People failed to object at sentencing. (Smith, supra, at p. 852) In People v. Talibdeen (2002) 27 Cal.4th 1151 (Talibdeen), the Supreme Court upheld the appellate court’s imposition of mandatory penalties under section 1464, subdivision (a) and under Government Code section 76000, subdivision (a), where the trial court had omitted them and the People did not object. The court concluded that “at the time of sentencing, the trial court had no choice and had to impose state and county penalties in a statutorily determined amount on [the] defendant. The erroneous omission of these penalties therefore ‘present[ed] a pure question of law with only one answer....’ (Smith, supra, 24 Cal.4th at p. 853.)” (Talibdeen, supra, at p. 1157.)
The court below was required to impose an assessment under Government Code section 70373, subdivision (a)(1) in the amount of $30 for each of the five felonies of which defendant was convicted, for a total assessment of $150. Accordingly, we will order the judgment modified to reflect imposition of this assessment.
X. Amendment of Abstract to Reflect Presentence Custody Credits
The trial court failed to award appellant presentence custody credits and the abstract of judgment reflects only credit for the actual time appellant was in custody.
Section 2933.1 provides, in pertinent part: “(a)... [A]ny person who is convicted of a felony offense listed in Section 667.5 shall accrue no more than 15 percent of worktime credit. [¶]... [¶] (c) Notwithstanding Section 4019 [which authorizes presentence conduct credit] or any other provision of law, the maximum credit that may be earned against a period of confinement in... a county jail, ... following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a).”
Appellant was convicted of attempted willful premeditated murder, in violation of sections 664, 187, subdivision (a). Thus, appellant committed an offense that is a violent felony within the meaning of section 667.5, subdivision (c). Section 667.5, subdivision (c)(12), provides that a “violent felony” includes “(12) Attempted murder.” Accordingly, appellant is entitled to the following custody credits: 745 days of actual custody credit and 111 days of conduct credit (745 days X 15 percent = 111.75 days) for a total of 856 days (745 days + 111 days).
DISPOSITION
The superior court shall direct its clerk to amend the abstract of judgment to reflect: (1) an assessment of $150 pursuant to Government Code section 70373, subdivision (a)(1); and (2) that appellant is entitled to 745 days of actual custody credit, plus 111 days of conduct credit, for a total of 856 days of presentence custody credit. The superior court shall send the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed as modified.
We concur: ASHMANN-GERST, J., CHAVEZ, J.