Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Diego County Super. Ct. No. SCE245883
HALLER, J.
CONSOLIDATED APPEAL from a judgment of the Superior Court of San Diego County, Christine Goldsmith, Judge, and petition for writ of habeas corpus. Judgment affirmed, petition denied.
Chad Elie was convicted of several offenses arising from shooting incidents occurring on September 6, 2003, and July 31, 2004. For the September 6 incident, he was convicted of unlawfully exhibiting a firearm. For the July 31 incident, he was convicted of attempted murder and assault with a firearm, with findings that he personally discharged a firearm causing great bodily injury and committed the offenses for the benefit of a gang.
On appeal, Elie argues the trial court abused its discretion in denying his request to bifurcate the gang enhancement allegations from the trial on the charged crimes. Further, relevant to the July 31 shooting, he argues the trial court abused its discretion in denying his motion for new trial based on two witnesses whose testimony was not proffered at trial. He has also filed a petition for writ of habeas corpus challenging his attorney's failure to request a continuance to secure the testimony of one of these witnesses.
Additionally, Elie challenges the sufficiency of the evidence to support the jury's findings that he was the perpetrator of the July 31, 2004, and September 6, 2003 offenses. Finally, he argues the trial court violated his jury trial rights under Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) when it made factual findings to support an upper term for the attempted murder conviction.
Finding no grounds for reversal of the judgment or a new trial, we affirm the judgment and deny the writ petition.
FACTUAL AND PROCEDURAL BACKGROUND
Elie was charged with offenses arising from three shooting incidents, occurring on September 6, 2003, July 15, 2004, and July 31, 2004. The latter two incidents were allegedly connected with the activities of a gang in Lemon Grove called Murder Krew (MK). After a jury trial, Elie was convicted of the offenses charged for the September 6, 2003, and July 31, 2004 incidents, but was not convicted of the offenses charged for the July 15, 2004 incident.
The September 6, 2003 incident involved gunshots fired at a party in Crest by several individuals, including Elie. Elie was convicted of misdemeanor unlawful exhibition of a firearm for this incident.
The July 15, 2004 incident occurred at about 10:00 or 11:00 p.m. when a group of friends (including Marlon Major (Marlon), Joseph Brown, Ronald McGee, and Joseph Barajas II) were sitting in or standing by two vehicles in front of the Barajas family residence in Lemon Grove. Several other vehicles arrived in front of the residence. An occupant of one these vehicles yelled "MK, finish you off" and fired two or three gunshots out the passenger window. A bullet hit the windshield of the vehicle occupied by Brown. Marlon identified Elie as the person who yelled the gang statement and who shot the gun, and identified Elie's brother (Micah Elie (Micah)) as the driver of the vehicle in which Elie was a passenger. McGee also identified Elie and Micah as being in the car from which the shots were fired. Brown and Barajas were unable to identify the perpetrators. Micah testified on his own behalf, denying any involvement in the shooting. Micah also presented an alibi defense via his girlfriend, who testified she and Micah were together that night celebrating their anniversary.
For the July 15th incident, Elie and Micah were charged with attempted murder, discharging a firearm at an occupied vehicle, and assault with a firearm, with various gun and gang enhancement allegations. The jury acquitted Micah of all charges; acquitted Elie of attempted murder; and deadlocked on the remaining charges against Elie for this incident.
The third incident, which occurred around 9:00 or 10:00 p.m. on July 31, 2004, involved a shooting of Michael Major (Marlon's brother) in the driveway of the Barajas residence. During this incident, a group of males arrived at the driveway in a vehicle. One of the males yelled "MK," and the group then began shooting. Major, who was standing in the driveway about six feet from the assailants, was shot in the leg as he fled up the driveway. Major was in the hospital for one day. The bullet remains in his leg because it was not possible to remove it without risking amputation. He was in substantial pain and for about one month walked with a severe limp. At the time of trial his activities continued to be restricted because of the injury.
At trial, Major identified Elie as one of the shooters, testifying that he recognized Elie's voice saying "MK" and also recognized his face. Elie presented an alibi defense, with his father and his brother's girlfriend testifying that he was at his residence celebrating his brother's birthday the night of July 31, 2004.
For this incident, Elie was convicted of attempted murder and assault with a firearm, with true findings on personal firearm discharge causing great bodily injury and gang enhancements.
Elie received a nine-year upper term sentence for attempted murder, and a 25-years-to-life sentence for the personal firearm discharge causing great bodily injury enhancement.
We will set forth further facts as needed as we address each of Elie's arguments.
I. Denial of Motion to Bifurcate Trial of Gang Enhancement Allegations
Prior to trial, Elie unsuccessfully moved to have the trial of the charged offenses bifurcated from adjudication of the charged gang enhancement allegations. Elie asserts the trial court abused its discretion in denying the bifurcation motion.
At trial, evidence was presented to prove the gang enhancements, including evidence regarding persons who were members of MK; the Lemon Grove territory claimed by MK; and hand signs, graffiti, and crimes associated with MK members. A gang expert opined that the July 15 and 31 incidents advanced the gang's interest in becoming known to, and intimidating, the community.
Because evidence of gang membership is potentially prejudicial, our Supreme Court has instructed that in cases not involving the gang enhancement this evidence should not be admitted if its probative value is minimal. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) In cases that do involve the gang enhancement, a trial court has the discretion to bifurcate the trial of the gang enhancement from the trial of guilt if it determines that the gang evidence is "so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant's actual guilt." (Ibid.)
In both types of cases, a trial court's exercise of its discretion is guided by the extent to which the gang evidence is relevant to prove issues pertinent to guilt of the charged crime. (People v. Hernandez, supra, 33 Cal.4th at pp. 1049-1050.) As explained in Hernandez, "Evidence of the defendant's gang affiliation—including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime." (Id. at p. 1049.) If the gang evidence is sufficiently relevant to the charged offenses, neither exclusion nor bifurcation is required. (See id. at pp. 1049-1050.)
A trial court's discretion to deny bifurcation of a charged gang enhancement is broader than its discretion to admit gang evidence when the gang enhancement is not charged. (People v. Hernandez, supra, 33 Cal.4th at p. 1050.) Accordingly, a trial court may deny bifurcation even if some of the gang enhancement evidence would be inadmissible under Evidence Code section 352 in a case where no gang enhancement is charged. (Ibid.)
Here, there was no abuse of discretion. During the July 15 and 31, 2004 shooting incidents, the witnesses heard the gang name "MK" being shouted out. Micah presented an alibi defense for the July 15 shooting and Elie presented an alibi defense for the July 31 shooting. The gang evidence, including evidence that Micah and Elie were MK gang members, was relevant circumstantial evidence to support the eyewitness testimony that they were involved in the shootings. Given its significant probative value on the disputed issue of identity, the trial court did not abuse its discretion in denying the request for bifurcation of the gang enhancement allegations.
II. Request for New Trial to Present Testimony of Additional Witnesses Regarding July 31 Shooting
After the jury rendered its verdict, Elie, represented by new counsel, filed a motion requesting a new trial based on the proffered testimony of two witnesses who did not testify at trial, Ismael Hernandez and Eric Dubose. Elie argued that the testimony of Hernandez and Dubose refuted the prosecution's evidence that he shot at Major on July 31, 2004. At the hearing on the new trial motion, Hernandez, who admitted he was now serving a 40-years-to-life sentence for an unrelated crime, testified that he was the sole person who arrived and fired guns at the Barajas residence. Dubose, who was serving overseas in the Navy at the time of trial, testified that after the shooting, Major told him that he thought he recognized Elie's voice during the shooting, but he did not actually see Elie. Further, Dubose testified that Major told him that he identified Elie as a shooter because someone had to pay for the shooting.
According to Elie, defense counsel did not know about Hernandez's testimony until after trial. Elie acknowledged defense counsel knew about Dubose's testimony prior to trial, but cited case authority permitting the granting of a new trial based on the failure to introduce evidence under circumstances where the defendant was deprived of a fair trial and there is a reasonable probability of a different outcome upon retrial. (People v. Martinez (1984) 36 Cal.3d 816, 823-826.)
Denying Elie's new trial motion, the trial court found the two witnesses were not newly discovered, and even if they were, their testimony would not have resulted in different verdicts. Elie asserts the trial court abused its discretion in denying his request for a new trial. Elie has also filed a petition for writ of habeas corpus, arguing that his counsel provided ineffective representation by failing to request a continuance to allow time for Dubose to return from his overseas service and testify.
To review Elie's contentions, we first detail the evidence presented at trial concerning the July 31 shooting, and then evaluate whether the new evidence he has presented warrants a new trial for this offense.
A. Trial Evidence Regarding the July 31 Shooting
1. Major's Trial Testimony
Major testified that beginning in about 1999 or 2000, when he was in high school, he was friends with Elie and a group of about 10 other males. In about 2000 or 2001, some of the males in the group identified themselves as belonging to a gang called "MK." Elie, who became the leader of the gang, wanted the gang to become larger and more organized and to acquire weapons. Under Elie's leadership, the gang grew to almost 30 members. Major spent time with Elie on a daily basis and visited his home "[h]undreds of times." In 2001, Elie recruited Major to join the MK gang, but Major declined. Major stopped associating with Elie and the other MK members in 2002, when he had his first son. In November or December 2003, there was an incident between Major and MK member Chris Campbell after Major flushed marijuana down the toilet in an effort to stop Major's younger brother from selling the drugs for MK. Campbell and several other males chased Major on the freeway until Major was able to escape.
On July 31, 2004, Major went to the Barajas residence. As he was arriving, Major saw Campbell drive by and park at a nearby residence. About 10 or 15 minutes later, Major was standing in the Barajas driveway outside the driver's door of his mother's vehicle. Major saw car headlights approach the driveway, and seconds later heard a man say "MK." Major recognized the man's voice as Elie's. As Elie mouthed "K," Major turned and saw him. Major stated Elie may have been wearing a hat, but he recognized Elie's "face and structure, his mouth, [and] his voice." Elie was with about four or five other males, but Major did not have time to determine who they were because they started shooting at him. Major saw "flashes" from the guns being fired at him. It appeared that all the men had guns and that they were all shooting at him, but he did not know how many guns they had.
Major testified that he saw Elie was one of the men shooting at him, although he did not know if the bullet that hit him was one of Elie's bullets. Elie's arm was extended, and he was holding something dark in his hand from which flashes were coming. As the shots were being fired, Major ran away; he was shot in the leg on about the third or fourth shot. He fell to the ground, got up, and continued running away as the shots continued to be fired. The assailants then left and the authorities were summoned.
2. Major's Statements to Law Enforcement
a. Statements at the Scene and at the Hospital
Major testified that when the officers at the scene questioned him about who was responsible for the shooting, he told them it was Elie and Campbell. In contrast, Deputy Sheriff Sean Ochoa, the officer who interviewed Major at the scene, stated that Major told him he did not see who shot him because of the dark hour of the night, but that he suspected Campbell.
At the hospital later that night, Major provided a lengthy tape recorded statement to Detective Gilbert Grayson. In that interview, Major told Detective Grayson that he did not see Campbell shoot him but stated, "I already know that those guys are after me." Major also stated that he used to be friends with Elie and Campbell, but he did not agree with "what they were about" and he stopped seeing them since he had his first son, and he "guess[ed] they took that as . . . he's not with us so he['s] against us." During the interview, Major described seeing Campbell arrive in a car and park nearby, which made him think "there's trouble." Regarding the shooting, Major stated: "Then I hear MK, I turned and I looked and I hear. Sounds like [Elie]. This guy named [Elie] I know say MK. [¶] . . . [¶] Hear him, say MK."
During continued questioning, Major indicated he could not positively identify the faces of the shooters. On this point, the following colloquy occurred:
"[Detective Grayson]: When somebody yelled MK, you turned around, did you see any guys faces . . . ?"
"[Major]: Not really. I couldn't really, they're just, I seen the familiar faces that are, you I know from MK, it seems like they're all standing there. Seem like they all had guns."
"[Detective Grayson]: Who were they?"
"[Major]: I don't know. Could have been [Elie], a guy named Freddy Bow . . . ."
"[Detective Grayson]: But you're not sure, right?"
"[Major]: Could have been [Campbell] there too."
"[Detective Grayson]: But you're not sure, right?"
"[Major]: Yeah, I'm not positive."
"[Detective Grayson]: Okay, it could have been El[ie] . . . ."
"[Major]: Could have been . . . ."
"[Detective Grayson]: Who was the other guy?"
"[Major]: A guy named Freddy Bow . . . ."
[¶] . . . [¶]
"[Detective Grayson]: And"
"[Major]: Another guy named [Campbell]."
Major told Detective Grayson that he thought about five males were shooting at him because it looked like they all had guns. When asked again if he actually saw Campbell there, Major responded no. When asked if he saw Elie there, Major responded "I really don't . . . ." However, when asked if he heard Elie's voice yell MK, Major responded, "Yeah." When queried about his relationship with Elie, Major stated that they had always gotten along fine, but lately a man named Anthony Jackson had told him that Elie wants to kill him. When Detective Grayson asked why Elie wanted to kill him, Major responded, "I just stood there after [Jackson] told me that." At one point during the interview, Major also made a statement suggesting that it may have been Campbell who he thought said "MK."
This occurred when Major was asked whether Campbell hated him enough to shoot him, and Major responded, "Guess so. He shot me. He said MK and shot me." Shortly before this particular line of questioning, Major told Detective Grayson that he felt "pretty sick."
b. Subsequent Statements to Law Enforcement
After he was released from the hospital, Major made several additional statements to law enforcement officers. In these interviews, he reiterated that he recognized Elie's voice but also additionally stated that he recognized Elie as one of the shooters.
On August 5, 2004, Major told Detective Grayson in an unrecorded interview that he saw Elie shoot at him, although he did not know if it was Elie's bullet that hit him.
About two months after the shooting, in a recorded interview with Detective Jerry Hartman on September 24, 2004, Major stated that he was certain the voice he heard saying MK was Elie's voice, and that he recognized Elie from his facial structure and his height. He explained that Elie may have been wearing a hat and he could not see Elie's face from his forehead to his eyes, but he could see his nose and his facial shape. He reiterated that he did not see Campbell among the shooters, although Campbell could have been there, and that he told the law enforcement officers it was Campbell because he had seen Campbell park nearby 15 or 20 minutes before the shooting.
2. Other Eyewitness Testimony
In addition to Major, several other witnesses testified regarding their observations of the July 31 shooting, including Major's friends Brian Neal and Barajas, Major's mother (Jody Deere), and Major's girlfriend (Denisse Ortega).
At the time of the shooting, Neal and Barajas were also standing in the driveway. Neal testified that he saw the headlights of a car, and then saw two males (whom he could not identify) and heard about 10 shots. After Major was shot, Major yelled, "It was M.K., it was [Elie], it was [Campbell]." Detective Hartman testified that he interviewed Neal in January 2005, and Neal told him that he recognized the car at the Barajas driveway as belonging to Campbell; he saw three males at the driveway; and he recognized Elie's voice yelling out Murder Krew. At trial, Neal testified that he did not hear anything being said, he did not tell Detective Hartman that he heard someone yelling something, and he had never seen Campbell drive a vehicle.
Barajas testified that he saw the headlights of an arriving vehicle; he heard someone yelling "Murder Krew" and "Freeze"; he saw two African-American males shooting; and he heard about 20 gunshots. He was not able to recognize the two males because it was dark. After Major was shot, Barajas heard Major say that he thought Murder Krew shot him and Major mentioned Elie's and Campbell's names.
Elie is African-American.
During the shooting, Ortega and Deere were sitting in Deere's car with Ortega and Major's two young children and Ortega's 10-year-old brother. Ortega testified that she heard someone yell "MK" and then heard shooting. She could not tell who the shooters were; when she looked out the car windows she could only see "guys just dark and like smoke in the air." One of the persons that she saw was a "[t]all and skinny" African-American male. The shooting continued and seemed to last "forever."
Deere testified that she saw headlights coming up the driveway; a few minutes later she heard someone yelling "MK" and "freeze"; and then there were gunshots. She heard about 10 to 15 gunshots. Her car was hit by several bullets in various places. Deere testified that it was dark and that she saw "figures" by the driveway, but she could not see who they were or how many were there. At the scene of the shooting, Major told Deere that he had been shot; that it was " 'Campbell from MK that did it' "; and that he had seen Campbell's car drive by. At the hospital, Major told Deere "he saw [Elie] standing there doing shooting."
3. Firearms Evidence
When the authorities searched the scene of the shooting, they were unable to find any discarded shell casings. When an automatic weapon is used, the shell casings are discarded from the weapon, whereas when a revolver is used, the casings stay inside the cylinder.
B. New Trial Motion
Elie argued to the trial court that he should be granted a new trial so that he could present the testimony of witnesses Hernandez and Dubose.
To obtain a new trial on the ground of newly discovered evidence, the defendant must show the evidence is newly discovered; the evidence is not merely cumulative; the evidence is such as to render a different result probable on a retrial of the case; the party could not with reasonable diligence have discovered and produced the evidence at trial; and these facts are shown by the best evidence of which the case admits. (People v. Dyer (1988) 45 Cal.3d 26, 50.) The granting or denying of a new trial on the ground of newly discovered evidence is a matter within the sound discretion of the trial court; each case must be judged from its own factual background; and the trial court's ruling will not be disturbed on appeal except for an abuse of discretion. (Id. at pp. 50, 52.)
We summarize Hernandez's and Dubose's testimony at the new trial motion hearing to determine whether, when this new evidence is considered in conjunction with the trial evidence summarized above, the trial court abused its discretion in ruling that a new trial was not warranted.
1. Hernandez
At the hearing on the new trial motion, Hernandez (who is Hispanic) testified that he shot Major. Hernandez stated he was an MK member and Elie was his friend. On the night of the shooting he was at a birthday party at Elie's house with Elie. He took Elie's car without Elie's permission and went to the Barajas residence by himself. He saw Major in the driveway kissing a woman in a car. He yelled out "Grove bound" and "Fuck you," and used two revolvers to shoot about nine rounds. After the shooting he returned to the party at the Elie residence, and saw that Elie was still there. Hernandez testified that he had been convicted of second degree murder in another case and was serving a sentence of 40 years to life.
The trial court found that even if Hernandez's testimony was newly discovered evidence his testimony was "patently unbelievable" when considered in light of the witnesses' testimony at trial, and thus the jury would not have reached a different result. The trial court's ruling was not an abuse of discretion. Hernandez's description of the shooting was markedly different from the witness testimony presented at trial. The trial witnesses described more than one person involved in the shooting and identified one or more of them as African-American. Major testified there were five or six persons and that he recognized Elie; Neal testified he saw two persons; Barajas testified he saw two African-American males; Ortega described seeing "guys," including an African-American male; and Deere described seeing "figures." In contrast, Hernandez's description of the shooting involved a sole Hispanic male, himself. Further, Hernandez claimed he shouted "Grove bound" and "Fuck you," whereas Major and Ortega testified that they heard "MK," and Barajas and Deere testified they heard "Murder Krew" or "MK" and "freeze."
In a tape recorded interview with Detective Hartman, Barajas described the two persons as "light-skinned dudes." Detective Hartman testified that Neal told him that he saw three males; one male was a dark-complexioned African-American; the other two males were light-complexioned but he was not sure of their race; and Murder Krew members included light-complexioned African-Americans, Caucasians, and Hispanics. Although the testimony about the racial identity was not entirely consistent, the witnesses consistently described seeing more than one person at the time of the shooting.
Deere testified that she heard "Murder Krew" and "freeze" or "police," but she thought it was "freeze."
A trial court is permitted to consider the credibility of testimony proffered at a new trial motion. (People v. Hernandez (1971) 19 Cal.App.3d 411, 416; People v. Sousa (1967) 254 Cal.App.2d 432, 435.) The trial court did not abuse its discretion in concluding Hernandez's testimony was not credible given its marked deviation from the description of the shooting presented by other witnesses. The reasonableness of the trial court's ruling is further supported by the fact that Hernandez had virtually nothing to lose by claiming responsibility for the shooting since he was serving a lengthy prison sentence for another crime.
2. Dubose
Dubose was friends with both Major and Elie. A defense investigator spoke to Dubose in January 2005, and prior to trial provided a report to Elie's attorney summarizing the interview. According to Dubose, in August or September 2004, when Dubose returned from boot camp, Major told him about the shooting. Major told Dubose that his problems with Elie started when Major and some of his friends got into a fight with Elie at a liquor store and Major chased Elie with a hammer until Elie escaped at a friend's home. Major told Dubose that on the night of the shooting he saw five or six people jump out of a car; he did not know who they were because it was dark; he heard someone yell out "MK"; and it sounded like Elie. Further, Major stated to Dubose that he told the authorities he did not know "who it was," but "he thought about it and felt that someone had to get in trouble for his getting shot" and "because he thought it was [Elie] that he heard yell, 'MK', he told a detective that he recognized the shooter as [Elie]."
In his testimony at the hearing on the new trial motion, Dubose essentially reiterated the information he provided the defense investigator. Dubose testified that Major told him about the incident when Major, armed with a hammer, chased after Elie. Sometime thereafter, the shooting incident occurred. When describing the shooting incident, Major told Dubose that he did not know who the five or six people were because it was dark, and "he wasn't sure who [shot at him], but he just remembered hearing [Elie's] voice." Dubose elaborated that Major stated that "he didn't know who really did it, but he know[s] he thinks he heard [Elie's] voice there, so he told on [Elie]." When asked if Major told him he was sure he heard Elie's voice, Dubose responded, "He didn't say he was sure. He said he thought he did." When asked if Major told him that "somebody had to pay for this" and that he identified Elie as the shooter because the voice sounded like Elie's voice, Dubose answered yes.
Major testified at the hearing on the new trial motion, claiming that he did not make the statements about the shooting as reported by Dubose.
Analysis
In his new trial motion, Elie relied on case authority which permits granting of a new trial based on newly discovered evidence, regardless of counsel's diligence, when the new evidence contradicts the strongest evidence introduced against the defendant, the defendant did not have a fair trial, and the result could reasonably and probably be different on a retrial. (People v. Martinez, supra, 36 Cal.3d at pp. 823-826.) Elie did not request a new trial on the basis that his counsel was ineffective for failing to request a continuance to present Dubose's testimony.
Under the principle set forth in Martinez, if consideration of the newly discovered evidence is essential to a fair trial and a just verdict, a new trial should be granted regardless of whether trial counsel's failure to discover and produce the evidence was constitutionally ineffective. (People v. Martinez, supra, 36 Cal.3d at p. 826.) The Martinez principle is viewed as an exception to the general rule that a new trial based on new evidence is warranted only upon a showing that defense counsel exercised due diligence to discover and present the testimony. (See People v. Dyer, supra, 45 Cal.3d at pp. 51-52.)
When denying the new trial motion based on Dubose's testimony, the trial court found that Dubose's testimony was generally consistent with the trial evidence that Elie's voice was recognized, and concluded Dubose's testimony would not have caused a different verdict.
As we shall explain, we conclude the trial court did not abuse its discretion under the Martinez standard because Dubose's testimony could have undermined the defense case, and further Dubose's testimony was duplicative of strong impeachment evidence that was presented at trial. Accordingly, the trial court was not required to find that Dubose's testimony was essential to a fair trial and that there was reasonable probability of a different verdict if a new trial were granted.
Elie's defense at trial was to present alibi testimony showing he was at home at the time of the shooting. An alibi defense was not unreasonable given the weaknesses in the prosecution's evidence placing Elie at the scene; i.e., it was dark at the scene; none of the witnesses except Major claimed that they were able to recognize Elie; Major's statements that he recognized Elie's face were impeached by Officer Ochoa's testimony and by Elie's recorded statement at the hospital indicating that Elie told the officers he was not able to visually identify the assailants; and Major had only a short opportunity to hear the voice of the person who shouted "MK."
If defense counsel were to introduce Dubose's testimony at a new trial, this could create potential detriments as well as benefits for the defense. Dubose's testimony that Major told him he thought he recognized Elie's voice just prior to the shots being fired could weaken the alibi defense by providing evidence of a generally consistent statement by Major on the voice identification issue. Major consistently reported that he recognized Elie's voice. In the recorded interview with Detective Grayson at the hospital, in the subsequent recorded interview with Detective Hartman, and in his trial testimony he did not deviate from this claim. If the jury believed that Major recognized Elie's voice at the scene, this would seriously undermine the alibi defense and support the conclusion that Elie was at the scene. Once finding that Elie was at the scene based on the voice identification evidence, the jury could readily infer that he was a shooter given his leadership role in the MK, the consistent eyewitness testimony that numerous shots were fired, and the failure to find discarded casings from an automatic weapon which could suggest there were multiple shooters using revolvers. Thus, Dubose's testimony showing another generally consistent statement by Major that the voice sounded like Elie's voice could hurt the defense on both the attempted murder charge and the personal gun discharge enhancement. Additionally, Dubose's testimony could harm the defense if Dubose testified about the portion of the conversation in which Major stated that on a previous occasion he chased Elie with a hammer, which could provide a motive for Elie to shoot Major.
We note that at the new trial motion hearing, Dubose testified that Major did not state he was sure he heard Elie's voice, but rather merely stated he thought it was Elie's voice. This testimony could be used by the defense to question the degree of Major's certainty that he recognized Elie's voice; i.e., to challenge Major's more affirmative statements to the officers and at trial that he recognized the voice. However, particularly given Major's repeated statements that he recognized Elie's voice, the jury could view Major's statement to Dubose as essentially consistent with Major's other statements.
Under the circumstances of this case, it was not necessary that the prosecution prove which shooter's bullet actually hit the victim to establish the great bodily injury portion of the personal gun discharge enhancement (which carried the 25-years-to-life sentence). (In re Sergio R. (1991) 228 Cal.App.3d 588, 601-602; People v. Gutierrez (1996) 46 Cal.App.4th 804, 816; People v. Modiri (2006) 39 Cal.4th 481, 496-497 [when it cannot be determined which perpetrator in a group of assailants caused great bodily injury, all assailants are liable for great bodily injury enhancement].)
We recognize there are aspects of Dubose's testimony that could benefit the defense. Most significantly, Dubose's testimony, if believed, would impeach Major's claim that he recognized Elie's face. However, the jury heard this precise impeachment evidence from another source. In Major's tape recorded interview at the hospital, Major told Detective Grayson that he could not positively identify the faces of the men who were shooting at him. Evidence that is merely cumulative does not warrant a new trial unless the evidence is such that it creates a reasonable probability of a different result upon retrial. (People v. Shepherd (1936) 14 Cal.App.2d 513, 518.) Here, because the interview with Detective Grayson was recorded, it was virtually incontrovertible that Major told Detective Grayson that he could not identify the shooters' faces. In contrast to the recorded impeachment evidence, Dubose's impeachment evidence was subject to cross-examination for veracity and accuracy. Thus, via the recorded statement, the jury was presented with impeachment evidence that was even stronger than Dubose's testimony on this point. Notwithstanding the recorded impeachment evidence, the jury credited the identification evidence and concluded Elie was a shooter.
Under these circumstances, we conclude the trial court could reasonably find that Dubose's testimony did not create a reasonable probability of a different verdict upon retrial. First, defense counsel at a retrial might elect not to introduce Dubose's testimony because it could undermine the alibi defense. Second, even if defense counsel were to decide to call Dubose to testify, his testimony could hurt the defense by showing a largely consistent statement by Major identifying Elie's voice and, if Dubose testified about Major's description of the hammer-chase incident, by providing a motive for Elie to shoot Major. Further, although Dubose's testimony could benefit the defense by impeaching Major's claims that he recognized Elie's face, impeachment evidence on this point was in fact presented to the jury in an even stronger form through Major's recorded statement at the hospital without causing the jury to reject the prosecution's evidence of Elie's guilt.
The trial court did not abuse its discretion in denying the new trial motion based on Dubose's testimony.
C. Petition for Writ of Habeas Corpus
For similar reasons, we reject Elie's request for a new trial based on ineffective representation presented in his writ of habeas corpus petition. To prevail on an incompetency of counsel claim, the defendant must show counsel's representation fell below an objective standard of reasonableness, and there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. (People v. Diaz (1992) 3 Cal.4th 495, 557.) To support the habeas petition, Elie's trial counsel submitted a declaration stating that he should have anticipated Major's visual identification of Elie at trial and that he had no tactical reason for not requesting a continuance to allow presentation of Dubose's testimony to impeach Major's testimony that he saw Elie firing a gun. We construe this statement as premised primarily on hindsight—i.e., if trial counsel had known the jury would reject the alibi defense, he may have concluded that it was worth the risk to call Dubose as a witness to impeach Major's claim that he recognized Elie's face. However, a hindsight standard does not govern our evaluation of incompetency of counsel claims. (People v. Stanley (2006) 39 Cal.4th 913, 954.) Rather, we evaluate counsel's decisionmaking in the context of the available information, and apply an objective standard of reasonableness. (Ibid.) If counsel's omission resulted from " 'an informed tactical choice within the range of reasonable competence, the conviction must be affirmed.' " (People v. Diaz, supra, 3 Cal.4th at p. 557.)
Applying an objective standard, competent defense counsel could have reasonably foregone presentation of Dubose's testimony to avoid additional testimony that Major claimed he recognized Elie's voice, and to avoid the possible presentation of evidence about a previous confrontation between Major and Elie which could give Elie a motive to assault Major. As stated, if a new trial were ordered, defense counsel could reasonably decide that Dubose should not be called as a witness because the potential disadvantages outweighed the potential advantages. Elie has not carried his burden to show ineffective representation warranting a new trial.
III. Sufficiency of the Evidence
Elie challenges the sufficiency of the evidence to support his convictions of attempted murder on July 31, 2004, and exhibition of a firearm on September 6, 2003.
When reviewing a challenge to the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment to determine whether there is substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Thomas (1992) 2 Cal.4th 489, 514.) If the circumstances reasonably justify the jury's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (Ibid.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.)
A. Attempted Murder on July 31, 2004
Elie contends the evidence does not support that he was one of the persons shooting at Major at the Barajas residence on July 31, 2004.
Major testified that he recognized Elie's voice and face. Although he initially told the authorities he could not recognize the shooters' faces, this inconsistency did not compel the jury to reject the identification evidence he provided. Resolution of evidentiary conflicts and inconsistencies is the exclusive province of the trier of fact. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Unless testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction, and a jury may accept a witness's testimony in whole or in part. (Ibid.; In re Daniel G. (2004) 120 Cal.App.4th 824, 830.) Major's testimony identifying Elie as the shooter was not physically impossible nor inherently improbable. To the contrary, the plausibility of Major's identification of Elie as one of the shooters was supported by the circumstantial evidence that several witnesses heard "MK" being shouted at the time of the shooting, Elie was a leader of the MK, and Major had been in frequent contact with Elie for several years and thus was very familiar with his voice and face. Further, the jury was entitled to credit the corroborative evidence provided by Detective Hartman, who testified that Neal told him he recognized Elie's voice at the time of the shooting, even though at trial Neal denied this. The evidence was sufficient to support the jury's verdict that Elie was guilty of the attempted murder of Major.
B. September 2003 Firearm Exhibition at Crest
Elie contends there is insufficient evidence to show that he was one of the persons who exhibited a firearm at the party in Crest on September 6, 2003.
Tyler Reese and Ryan Faber testified at trial regarding the September 2003 incident. They testified that after a fight broke out at the party, two or three males yelled gang slurs, shot guns, and then fled in a vehicle. Shortly after being notified of the shooting, the police stopped a suspect vehicle in El Cajon. Elie was one of the occupants of the car. The police found two guns on the ground about 200 feet from the suspects' vehicle. Empty shell casings at the scene of the shooting matched the type of guns found near the car. Reese and Faber participated in a curbside lineup of the vehicle's occupants. Reese and Faber testified that at the curbside lineup they selected the person in People's Exhibit 20 as one of the shooters. People's Exhibit 20 depicted a photograph of Elie.
To support his argument, Elie points to evidence showing that Reese and Faber identified a Hispanic male (Raymond Mullins, depicted in People's Exhibit 21) as a shooter. Although the record supports this contention, Elie ignores the evidence showing that these witnesses also identified the person in Exhibit 20 as one of the shooters. Although there were some discrepancies in the identification evidence, this was a matter for the jury to resolve. Notably, the witnesses described more than one person shooting. Thus, the jury could reasonably resolve the discrepancies by concluding that both Elie and Mullins were shooters.
For example, at trial Faber identified Elie and a Caucasian male (Tim Cloyd) as the shooters. In contrast, according to law enforcement witnesses, at the curbside lineup Faber identified a Hispanic male as a shooter (Mullins) and another African-American male (Keith Dunn) as the driver of the suspects' vehicle. At trial, Faber testified he was sure that he told the authorities that Elie was one of the shooters, and he testified he did not recognize Mullins. No evidence was presented to show any such discrepancies in Reese's identification of Elie, although there was some unclarity as to the location of the curbside lineup when Reese identified Elie.
The evidence was sufficient to support the jury's verdict for this offense.
IV. Apprendi Rights
The trial court selected an upper term sentence of nine years for the July 31 attempted murder conviction, based on findings that the crime involved vulnerable victims, Elie has a prior conviction for possessing a bat during another gang-related incident, and Elie showed no remorse. Elie contends the trial court's factual findings violated his constitutional right to have the jury, not the trial judge, decide all facts (except for the fact of a prior conviction) that increase the penalty for a crime beyond the prescribed statutory maximum. (Apprendi, supra, 530 U.S. at p. 490.) Interpreting the Apprendi jury trial rights, in People v. Black (2007)41 Cal.4th 799, the California Supreme Court determined that a trial court is permitted to make factual findings beyond the jury's verdict to support an upper term selection, if the defendant is eligible for the upper term because at least one aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior convictions. (Id. at p. 816, cert. den. Black v. California (Jan. 14, 2008) ___U.S.___ [128 S.Ct. 1063]; accord People v. Towne (2008) 44 Cal.4th 63, 76.)
Elie acknowledges that under Black, his jury trial rights were not violated because he was eligible for the upper term based on his prior conviction. He challenges his upper term sentence for purposes of preserving his rights to further review of this issue. Based on Black, we reject his contention.
DISPOSITION
The judgment is affirmed. The petition for writ of habeas corpus is denied.
WE CONCUR: McCONNELL, P. J., McINTYRE, J.