Opinion
A151350
12-07-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSE GUADALUPE ESCARENO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUK-CRCR-15-80897)
Jose Guadalupe Escareno appeals his convictions, following a jury trial, for attempted murder and assault. He raises numerous claims, including (but not limited to) instructional error, evidentiary error, ineffective assistance of counsel, and sentencing error. We remand for the trial court to exercise its discretion to strike firearm enhancements pursuant to recent legislation, and otherwise affirm.
PROCEDURAL BACKGROUND
Appellant was charged by amended information with two counts of attempted murder (Pen. Code, §§ 664, 187); two counts of assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)); and two counts of criminal threats (§ 422). The information further alleged, as to all counts, that appellant personally used a firearm (§§ 12022.53, subd. (b), 12022.5, subd. (a)). The information charged a co-defendant, Francisco Escareno, with one count of assault with force likely to produce great bodily injury.
All undesignated section references are to the Penal Code.
For convenience, we will refer to Francisco Escareno by his first name. No disrespect is intended.
A jury found appellant guilty on all counts and found all firearm allegations true. Appellant filed a motion for a new trial, which the trial court granted as to the criminal threats counts and denied as to the remaining counts. Appellant was sentenced to an aggregate prison term of 20 years eight months.
FACTUAL BACKGROUND
David S.'s Testimony
On February 21, 2015, David S. was at home. David saw appellant's nephew, Francisco, driving very fast, and saw a dog fall off the back of Francisco's truck. About 15 minutes later, Francisco returned with appellant. David told Francisco to drive more slowly because David's children played outside. Francisco became angry and the two men started to fight. They were on the ground, David on top of Francisco, when David felt a hard blow to his back and heard a shot. David fell off Francisco, who stood up.
David saw appellant point a gun at him and pull the trigger multiple times. The gun made a "cracking" sound but no bullets were fired. Francisco kicked David and appellant said he wanted to kill David. Appellant and Francisco then left. Eduardo S.'s Testimony
David did not tell law enforcement on the day of the incident that he could hear a sound coming from the gun.
On February 21, David's brother, Eduardo, was at home and saw Francisco drive by very fast. He subsequently heard the same truck driving very fast again, and went outside. Eduardo heard David ask Francisco to slow down. Francisco responded angrily and started fighting with David. Eduardo began fighting with appellant, who was trying to hit David. Although they both attempted to punch each other, appellant never in fact hit Eduardo.
Appellant then ran to the truck, retrieved a pistol, and hit David in the back with it, causing it to fire. Appellant told David and Eduardo, " 'I'm going to kill you,' " and tried to fire at them several times, but the gun was jammed. Appellant and Francisco then got in the truck and left.
Law Enforcement Testimony
Deputy Sheriff Sergio Chora interviewed appellant on the day of the incident. Appellant told Deputy Chora he hit David on the back with the gun, which caused the gun to "go off." Appellant then saw the gun was jammed and he cleared it.
Law enforcement found the gun in Francisco's truck. It did not appear to be jammed.
Sheriff's Deputy James Elmore testified, based on his training in and experience with firearms, that a gun could discharge and jam if used as a club. There are several ways to clear a jam, including "rack[ing]" the gun to dislodge an expended shell which has not been properly ejected.
Defense Case
Appellant testified in his own defense. His boss told him to carry a firearm for protection at work. He had been working on the morning of February 21, 2015, and was carrying his gun into his house when Francisco asked for help finding his dog. Appellant left with Francisco, placing his gun in Francisco's truck.
When they found the dog, David approached Francisco, told him not to drive so fast, and then punched Francisco. The two men began to fight. Appellant tried to help Francisco, but Eduardo hit him in the face. Appellant then retrieved his gun from the truck and hit David, who was on top of Francisco, with the gun. When appellant hit David, the gun accidentally discharged. David fell off Francisco, and appellant and Francisco got in the truck. As they were leaving, Eduardo said, " 'Now we're going to kill you.' "
Appellant denied threatening to kill David or Eduardo, pointing the gun at either of them, or pulling the trigger. Appellant did not notice anything wrong with his gun and denied attempting to rack or reset it. On cross-examination, appellant denied telling Deputy Chora the gun jammed, and testified if he had so stated, it was because he wanted Deputy Chora to loosen the handcuffs, which were hurting his hands.
In rebuttal testimony, Deputy Chora testified appellant told him that after the gun accidentally discharged, he pointed it at the ground, pulled the trigger, noticed it had jammed, and "racked" it to clear the jam.
DISCUSSION
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
Appellant argues the trial court erred in denying his Batson/Wheeler motion. We disagree.
A. Legal Standard
"Both state and federal Constitutions prohibit the use of peremptory challenges to remove prospective jurors based on their race or membership in a cognizable group. [Citations.] A three-step inquiry governs the analysis of Batson/Wheeler claims. 'First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.' " (People v. Winbush (2017) 2 Cal.5th 402, 433 (Winbush).) " 'At the third stage of the Wheeler/Batson inquiry, "the issue comes down to whether the trial court finds the prosecutor's race-neutral explanations to be credible." ' " (Winbush, at p. 434.) This step "focuses on the subjective genuineness of the reason, not the objective reasonableness. [Citation.] . . . To assess credibility, the court may consider, ' "among other factors, the prosecutor's demeanor; . . . how reasonable, or how improbable, the explanations are; and . . . whether the proffered rationale has some basis in accepted trial strategy." ' " (People v. Gutierrez (2017) 2 Cal.5th 1150, 1158-1159 (Gutierrez).)
" 'We review a trial court's determination regarding the sufficiency of a prosecutor's justifications for exercising peremptory challenges " 'with great restraint.' " [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal." (Winbush, supra, 2 Cal.5th at p. 434.)
B. Additional Background
Toward the end of jury selection, Mr. Garcia had just been seated as one of the twelve jurors. All parties had passed for cause and a new panel was brought to court to complete jury selection. After the new panel was questioned, the prosecutor exercised his next peremptory challenge to strike Mr. Garcia. Appellant made a Batson/Wheeler objection, arguing the prosecutor struck the only Hispanic juror on the panel. The court found a prima facie showing.
The attorneys below disputed whether an additional juror was Hispanic, and the trial court noted other prospective jurors appeared to be Hispanic. Appellant also notes on appeal that the prosecutor previously struck a prospective juror with a Hispanic last name. This additional background is immaterial to our resolution of the issue on appeal.
The prosecutor offered the following explanation: "I passed on Mr. Garcia prior to the break, and when we came back after the break I looked at the jurors. They all nodded at me. He is the only one that gave me a really hard stare, and that bothered me. [¶] I had a question about him prior to the break. I worried about the fact that he's the only juror sitting up there with short sleeves and tattoos up and down both his arms and spiked hair. I don't know if he would be a good fit to work with the other 11 jurors to reach a fair and impartial verdict." Defense counsel responded that Mr. Garcia was not the only juror wearing short sleeves. The trial court found the prosecutor's reason race-neutral and genuine.
C. Analysis
Appellant does not dispute that the prosecutor's reasons were race-neutral. Instead, he contends they were pretextual. We disagree.
The prosecutor's stated reasons—Mr. Garcia's "really hard stare," visible tattoos, and "spiky" hair—were race-neutral and permissible. " '[A] prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons.' " (People v. Elliott (2012) 53 Cal.4th 535, 569.) " '[E]ither party may feel a mistrust of a juror's objectivity on no more than the "sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another" [citation]—upon entering the box the juror may have smiled at the defendant, for instance, or glared at him.' " (People v. Reynoso (2003) 31 Cal.4th 903, 917 (Reynoso); see also Elliott, at pp. 569-570 [finding "[t]he prosecutor's stated reasons are permissible and race neutral," including that prospective juror's "clothing stood out in its informality, [and] that his hairstyle was unusual"].) We note also that the prosecutor initially passed on Mr. Garcia. "Although not a conclusive factor, 'the passing of certain jurors may be an indication of the prosecutor's good faith in exercising his peremptories, and may be an appropriate factor for the trial judge to consider in ruling on a Wheeler objection . . . .' " (Reynoso, at p. 926.)
Appellant's numerous arguments are unavailing. Appellant suggests the prosecutor's exchange with the jurors took place during the break and was an improper communication. Appellant fails to explain the relevance to the Batson/Wheeler analysis. In any event, the record strongly suggests the exchange took place in the courtroom: the prosecutor stated it occurred "when we came back after the break," and neither the court nor defense counsel raised an objection.
Appellant argues the trial court did not observe Mr. Garcia's "hard stare." The record is silent on this issue, but even so assuming, a "trial court's apparent lack of personal recollection of [prospective juror's] demeanor does not remove any and all basis for deference to the trial court's ruling on the Batson/Wheeler motion. [Citation.] . . . '[T]he best evidence of the intent of the attorney exercising a strike is often that attorney's demeanor.' " (People v. Williams (2013) 56 Cal.4th 630, 657-658.)
Appellant complains Mr. Garcia was not the only juror wearing a short-sleeved shirt, but the prosecutor's apparent concern was that Mr. Garcia's short-sleeves displayed the "tattoos up and down both his arms." That Mr. Garcia's answers to the lawyer's questions were unobjectionable, as appellant contends, is immaterial. Appellant argues the trial court did not address the distinction between a "stare" and a "nod," and did not expressly analyze the prosecutor's reasons. A trial court need not "make explicit and detailed findings for the record in every instance in which the court determines to credit a prosecutor's demeanor-based reasons for exercising a peremptory challenge." (Reynoso, supra, 31 Cal.4th at p. 929; see also ibid. ["Where, as here, the trial court is fully apprised of the nature of the defense challenge to the prosecutor's exercise of a particular peremptory challenge, where the prosecutor's reasons for excusing the juror are neither contradicted by the record nor inherently implausible [citation], and where nothing in the record is in conflict with the usual presumptions to be drawn, i.e., that all peremptory challenges have been exercised in a constitutional manner, and that the trial court has properly made a sincere and reasoned evaluation of the prosecutor's reasons for exercising his peremptory challenges, then those presumptions may be relied upon, and a Batson/Wheeler motion denied, notwithstanding that the record does not contain detailed findings regarding the reasons for the exercise of each such peremptory challenge."].)
II. Jury Instructions
Appellant raises numerous claims of instructional error. We reject the challenges.
A. Premeditation and Deliberation
The information did not allege appellant committed the attempted murders with premeditation and deliberation. (See § 664, subd. (f) [sentencing enhancement imposed where it is "charged and admitted or found to be true by the trier of fact that the attempted murder was willful, deliberate, and premeditated"].) However, the jury was instructed on premeditation and deliberation and found it true that appellant so acted. Prior to sentencing, the trial court determined the uncharged enhancements were unauthorized and appellant would not be sentenced pursuant to them.
Appellant argues the instruction on the enhancement was nonetheless prejudicial because it "was utilized by the prosecutor to ratchet up the seriousness of the charges." Appellant provides no record citations for this contention, and includes no further explanation or analysis. This cursory argument is both forfeited (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 (Cahill) [contention forfeited if appellant " ' "fails to support it with reasoned argument and citations to authority" ' "]) and, in any event, fails to establish prejudice under any standard. For the same reason, we reject appellant's claim that his trial counsel's failure to object to the instruction constituted ineffective assistance of counsel. (See People v. Hinton (2006) 37 Cal.4th 839, 876 (Hinton) ["To demonstrate ineffective assistance of counsel, a defendant must show that counsel's action was, objectively considered, both deficient under prevailing professional norms and prejudicial."].)
B. Lesser Included Offenses
Appellant contends the trial court erred in failing to sua sponte instruct the jury on lesser included offenses to attempted murder, to wit, the attempted involuntary manslaughter theory of imperfect self-defense (CALCRIM No. 604) and the attempted voluntary manslaughter theory of heat of passion/provocation (CALCRIM No. 603).
The jury was instructed on self-defense and defense of others.
"Instructions on lesser included offenses ' "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." ' " (People v. Prince (2007) 40 Cal.4th 1179, 1265.) " 'The erroneous failure to instruct on a lesser included offense generally is subject to harmless error review under the standard of People v. Watson (1956) 46 Cal.2d 818, at pages 836-837. Reversal is required only if it is reasonably probable the jury would have returned a different verdict absent the error or errors complained of.' " (Prince, at p. 1267.)
"Imperfect self-defense, which reduces murder to voluntary manslaughter, arises when a defendant acts in the actual but unreasonable belief that he is in imminent danger of death or great bodily injury. [Citations.] Heat of passion, which likewise reduces murder to voluntary manslaughter, arises when the defendant is provoked by acts that would 'render an ordinary person of average disposition "liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment" ' [citation] and kills while under the actual influence of such a passion." (People v. Duff (2014) 58 Cal.4th 527, 561-562.)
Assuming substantial evidence supports both theories, it is not reasonably probable the outcome would have been more favorable to appellant had the jury been so instructed. The jury might have concluded appellant acted in imperfect self-defense or in the heat of passion when he struck David with the gun while David was on top of Francisco. However, David then immediately rolled off Francisco, and Francisco stood up and kicked David. David and Eduardo testified appellant pointed the gun at them and pulled the trigger, although at this point David posed no threat to either appellant or Francisco. Appellant testified he did not attempt to shoot the brothers. "Having considered ' "whether the evidence supporting the existing judgment is . . . relatively strong, and the evidence supporting a different outcome is . . . comparatively weak" ' [citation], we do not believe it is reasonably probable that the absence of [an imperfect self-defense or heat of passion] instruction could have affected the outcome of the jury's deliberations." (Prince, supra, 40 Cal.4th at pp. 1267-1268.) For the same reason, appellant's claim that he received ineffective assistance of counsel in connection with this instruction is unavailing.
Appellant argues the applicable prejudice standard is that of Chapman v. California (1967) 386 U.S. 18. Our conclusion would remain the same under either standard.
C. Inapplicable Instructions
The jury was instructed that "[a] person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force" (CALCRIM No. 3472) and that "if [appellant] failed in his testimony to explain or deny evidence against him, and if he could reasonably be expected to have done so based on what he knew, you may consider his failure to explain or deny in evaluating that evidence" (CALCRIM No. 361). In his motion for a new trial, appellant argued both instructions were given in error because they were not supported by the evidence. As to both instructions, the trial court agreed but found the error harmless, noting closing arguments contained no argument on either instruction. Appellant renews the challenges on appeal.
Any error was harmless. "[G]iving an irrelevant or inapplicable instruction is generally ' "only a technical error which does not constitute ground for reversal." ' " (People v. Cross (2008) 45 Cal.4th 58, 67; see also People v. Eulian (2016) 247 Cal.App.4th 1324, 1335 ["If CALCRIM No. 3472 was erroneously given because it was irrelevant under the facts, the error is merely technical and not grounds for reversal."]; People v. Lamer (2003) 110 Cal.App.4th 1463, 1472 ["courts have routinely found that the improper giving of CALJIC No. 2.62 [the analog to CALCRIM No. 361] constitutes harmless error"].) We note the jury was properly instructed: "Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts." (CALCRIM No. 200.) For the same reason, we reject appellant's ineffective assistance of counsel claim regarding CALCRIM No. 361.
D. Specific Intent for Criminal Threats
The trial court failed to instruct the jury that the crime of criminal threats requires a specific intent. After appellant raised the issue in his new trial motion, the trial court granted a new trial on the two criminal threats charges. On appeal, appellant contends he was nonetheless prejudiced, arguing (without further analysis): "Because the threats, assaults and attempted murder charges were interrelated, it is impossible to know how this error affected the jury verdict on the assault and attempted murder charges." This cursory assertion is forfeited (Cahill, supra, 194 Cal.App.4th at p. 956) and, in any event, fails to demonstrate prejudice. We note the jury was properly instructed that attempted murder requires specific intent, and appellant does not contend otherwise.
E. Additional Instructions
Appellant contends the trial court erred in failing to sua sponte instruct the jury, during the final instructions, not to investigate (CALCRIM No. 201), on the role of note taking (CALCRIM No. 202), and on considerations for evaluating witness testimony (CALCRIM No. 226). Appellant was not prejudiced by the error. The trial court provided the introductory version of these instructions (CALCRIM Nos. 101, 102, & 105) at the beginning of trial, the day before the jury received closing instructions. In addition, the written versions of the introductory instructions were provided to the jury during deliberations. In closing arguments, defense counsel specifically addressed "judging credibility" as discussed "in your instruction . . . 105."
Appellant also argues the trial court failed to instruct the jury that multiple defendants must be separately considered (CALCRIM No. 203). Although the failure to sua sponte instruct was error, the error was harmless under any standard. (People v. Mask (1986) 188 Cal.App.3d 450, 457.) Francisco was charged with one count of assault, and David and Eduardo testified consistently about the separate conduct of Francisco and appellant. Appellant "has pointed to no evidence and we have found none which was improperly used against defendant." (Ibid.; see also ibid. ["This is not a case where, for example, the flight of one defendant was improperly used as evidence of the guilty conscience of another, nonfleeing defendant."].)
In a footnote in his opening brief on appeal, appellant appears to challenge additional instructions. The footnote includes no record citations and little analysis. " 'We do not have to consider issues discussed only in a footnote' " (Sabi v. Sterling (2010) 183 Cal.App.4th 916, 947), and we decline to do so here.
III. David's Misdemeanor Conviction
A. Additional Background
Before defense counsel's cross-examination of David, counsel announced his intent to ask David "if he was convicted of" misdemeanor domestic violence battery, "per his guilty plea to that charge" entered in February 2015. The People objected, representing that when David was sentenced, the charge was reduced to disturbing the peace. The prosecutor argued the conviction should be excluded under Evidence Code section 352 because disturbing the peace was "a de minimis offense" and it would "result in undue consumption of time" because defense counsel would "have to bring the victim in and we have to have a mini trial on that." The prosecutor reiterated, defense counsel "can't bring in the fact that [David] was convicted. All he can do is raise the issues surrounding it. The only way he can do that is through other witnesses." Defense counsel responded that the consumption of time was a "red herring" because "[a]ll we're trying to do is impeach him with the prior conviction." The trial court excluded the evidence as more prejudicial than probative, reasoning it "would result in undue consumption of time and would create a substantial danger of undue prejudice, confusing the issue, and misleading the jury."
Defense counsel did not dispute this representation, asserting David was "put on a deferred entry type program" after his plea.
B. Trial Court Error
Appellant contends the trial court erred in excluding the evidence because it would not result in an undue consumption of time, as David was likely to admit to the conduct (which he had already pled guilty to) so the victim would not need to testify, and the evidence would not have been confusing because the jury would have been instructed to consider it with respect to credibility. " 'A trial court's exercise of discretion in admitting or rejecting evidence pursuant to Evidence Code section 352 "will not be disturbed on appeal unless there is a manifest abuse of that discretion resulting in a miscarriage of justice." ' " (People v. Thomas (2011) 51 Cal.4th 449, 485.) Appellant has shown no abuse of discretion. While David may have admitted the underlying conduct, the surrounding circumstances were unknown and the prosecutor would have been entitled to present witnesses to testify to any mitigating facts.
Appellant also argues the conduct involved moral turpitude, but the trial court did not exclude the evidence on this ground.
C. Ineffective Assistance of Counsel
Appellant argues trial counsel was constitutionally ineffective by seeking only to introduce David's conviction, not the underlying conduct. Any deficient performance was not prejudicial. The trial court's ruling, finding the evidence would result in an undue consumption of time, reflects the court's understanding that trial counsel sought to introduce the underlying conduct, and further demonstrates that, had counsel so sought, the effort would have been unsuccessful.
Appellant next argues counsel was constitutionally ineffective in failing to seek to introduce the evidence as a character trait for violence, pursuant to Evidence Code section 1103. Assuming the evidence was admissible for this purpose, appellant fails to demonstrate prejudice. As an initial matter, the trial court already excluded the evidence pursuant to Evidence Code section 352, and would likely have done so again. Moreover, as the trial court reasoned in denying appellant's motion for a new trial on this ground, "the confrontation and fighting initiated by the initial contact, even if initiated by David S[.], had abruptly ceased with the gunshot. At that point the S[.] brothers had separated from the Escarenos. There was no evidence in the record that either of the S[.] brothers had undertaken any threatening conduct or made any verbal threats to either of the Escarenos between the firing of the shot and [appellant's] attempt to shoot them . . . . The jury clearly found the S[.] brothers to be credible witnesses and disbelieved [appellant's] denials, as does the court. Under these circumstances, it is difficult to conceive of a scenario wherein a determination that David S[.] was the initial aggressor would have probably resulted in a more favorable outcome for [appellant] . . . ."
V. Sufficiency of the Evidence
A. New Trial Motion
Appellant contends the trial court erred in denying his motion for a new trial on the attempted murder and assault counts because no substantial evidence supports the convictions. He argues David and Eduardo's testimony was neither credible nor consistent, there was no evidence of appellant's intent to kill, and there was no evidence of assaults or the personal use of a firearm in the commission of any assaults.
In a detailed written order, the trial court rejected these contentions. The court noted the issue "obviously depends primarily upon the determination of credibility. Based upon the observation of the demeanor of the witness while testifying and a thorough review of the entire record of trial testimony, the court concludes that David S[.] and Eduardo S[.] testified credibly about the gun use and threats and that [appellant's] denial that he attempted to shoot and made threats against the S[.] brothers was not credible." The court noted that statements by David and Eduardo taken immediately after the incident "were consistent in their essentials." Although their trial testimony included some details not included in their statements to law enforcement and there were some discrepancies in David's statements, the court "d[id] not believe these additional details and the discrepancies substantially detracted from the credibility of the trial testimony of David S[.] and Eduardo S[.]" In contrast, the trial court found "[appellant's] testimony of the events that occurred after the accidental discharge of the gun to be not credible."
The court concluded, "credible evidence established beyond a reasonable doubt that after the accidental discharge, [appellant] pointed the gun at David S[.] and Eduardo S[.] and threatened to kill them. He attempted to pull the trigger more than one time but the gun did not fire due to a jam which he had been unable to clear by racking." With respect to the attempted murder convictions, the court found "[e]vidence that [appellant] pointed the gun at the S[.] brothers, attempted to fire the gun and stated he was going to kill them is sufficient to support the findings that he intended to kill the S[.] brothers and that he took at least one direct but ineffective step towards killing them." With respect to the assault convictions, the court found, in relevant part: "The People argued in closing that the two counts of [assault with force likely to cause great bodily injury] were based on [appellant's] conduct in pointing his gun at the S[.] brothers and pulling the trigger two or more times. Willfully pointing a gun at a person and pulling the trigger would directly and probably result in the application of force likely to cause great bodily injury."
" 'We review a trial court's ruling on a motion for a new trial under a deferential abuse-of-discretion standard.' " (People v. Thompson (2010) 49 Cal.4th 79, 140.) The trial court's well-reasoned ruling was not an abuse of discretion.
B. Motion for Acquittal
Appellant argues trial counsel was ineffective in failing to move for acquittal at the close of the prosecution's evidence. Appellant argues such a motion would have been granted with respect to the premeditation and deliberation penalty enhancement. As the trial court subsequently agreed these enhancements were unauthorized and did not consider them in sentencing, appellant has shown no prejudice from counsel's failure to file a motion for acquittal. Appellant also argues there was insufficient evidence to support the attempted murder charges. The trial court denied appellant's new trial motion so arguing, and appellant offers no reason why the court's ruling on a motion for acquittal would have been different. Moreover, as discussed above, there was ample evidence supporting the attempted murder charges. Appellant fails to demonstrate any prejudice from trial counsel's failure to file a motion for acquittal.
IV. Ineffective Assistance of Counsel
We have disposed of some of appellant's ineffective assistance of counsel claims above. We address the remaining contentions now.
"To demonstrate ineffective assistance of counsel, a defendant must show that counsel's action was, objectively considered, both deficient under prevailing professional norms and prejudicial. [Citation.] To establish prejudice, a defendant must show a reasonable probability that, but for counsel's failings, the result of the proceeding would have been more favorable to the defendant." (Hinton, supra, 37 Cal.4th at p. 876.)
A. Deputy Elmore's Testimony
At the beginning of Deputy Elmore's testimony, the prosecutor began to question him about his experience with firearms. Defense counsel objected "on the basis that statements were not provided as far as his qualification as an expert." The People responded, "he's been on the witness list since day one, his name is on the report. There are no written reports by this deputy." The trial court allowed the People to continue questioning.
Appellant argues trial counsel was deficient "in not objecting to Deputy Elmore's testimony for lack of notice, not only to his qualifications, but more to the point his testimony"; and further in failing to request a proffer from the prosecution of the substance of the testimony, request a continuance to prepare, file a motion to exclude the testimony for lack of notice, or seek discovery sanctions. Appellant has failed to show any further objection would have succeeded. As relevant here, section 1054.1 requires the disclosure only of "[t]he names and addresses of persons the prosecutor intends to call as witnesses at trial" and "any reports or statements of experts made in conjunction with the case." (§ 1054.1, subds. (a) & (f).) The prosecutor represented that Deputy Elmore was on the witness list and did not prepare any reports or statements in conjunction with the case. Moreover, appellant fails to demonstrate that receiving a proffer and time to prepare would have materially impacted the witness's testimony.
B. Lack of Registration and Concealed Weapons Permit
On direct examination, appellant testified that his boss asked him to carry a firearm for work. On cross-examination, the prosecutor asked whether the firearm was registered to appellant. The trial court sustained defense counsel's objection to the question. The prosecutor then asked whether appellant had a concealed weapons permit. Defense counsel objected on relevance grounds, and the trial court overruled the objection. Defense counsel then advised appellant to invoke his Fifth Amendment rights and appellant refused to answer. After a break, appellant answered the question and testified he did not have a concealed weapons permit.
Appellant contends trial counsel was prejudicially ineffective in failing to file an in limine motion to exclude evidence relating to the gun's registration status and appellant's right to carry a firearm. With respect to the registration status, the trial court sustained defense counsel's objection and appellant has identified no prejudice from any failure of trial counsel to file an in limine motion. With respect to the concealed weapons permit, as the People note, appellant fails to provide authority that an in limine motion seeking to exclude this evidence would have been successful. Even so assuming, appellant has demonstrated no prejudice. The material evidence against appellant was the testimony of David and Eduardo, which the jury plainly credited. We note that appellant does not contend the prosecutor's closing argument emphasized his lack of a concealed weapons permit.
Appellant argues the cumulative effect of the trial errors denied him a fair trial. Although we have found or assumed several errors, we have concluded all are harmless. The cumulative effect of such errors does not warrant reversal.
VI. Sentencing
A. Consecutive Sentences
Appellant contends the trial court did not realize it had discretion to sentence appellant to concurrent, rather than consecutive, sentences. We disagree.
Appellant also argues the court did not realize it had authority to strike the firearm enhancements as unconstitutionally excessive. Because we are remanding the firearm enhancements pursuant to new legislation (part VI.B, post), we need not decide this issue.
The probation report recommended the assault counts be stayed pursuant to section 654, but the attempted murder counts be sentenced consecutively. Appellant's sentencing memorandum requested the attempted murder sentences "be run concurrently," quoted California Rules of Court rule 4.425, and argued "[t]here is nothing in Penal Code §1170.1(a) which requires consecutive sentencing." At the beginning of the sentencing hearing, the trial court confirmed it had read both the probation report and appellant's sentencing memorandum. Defense counsel's argument repeatedly emphasized the court's discretion to order concurrent sentences: "the Court has authority to at the very least issue concurrent sentences"; "here we have a situation where the Court can issue concurrent sentences"; "my argument is not that Count Two should be somehow stayed under 654. No. I'm saying impose the 15-year terms on both and run them concurrently. That's something the Court has discretion to do." The People did not contend the trial court lacked such discretion, instead arguing that "to grant concurrent sentencing does ignore the victim, Eduardo S[.]"
The trial court sentenced appellant to "the mitigated term of five years, . . . because of the absence of the record of [appellant], also his character, his place in the community, and somewhat in view of the way that the situation developed." The court imposed the second attempted murder count and firearms enhancements consecutively, and stated at the conclusion of the hearing: "I think under the circumstances where he had the firearm in hand and pointed it at two individuals, not only threatened to kill them but pulled the trigger attempting to kill them, warrants the consecutive sentences."
"Remand for resentencing is not required . . . if the record demonstrates the trial court was aware of its sentencing discretion. [Citations.] Further, remand is unnecessary if the record is silent concerning whether the trial court misunderstood its sentencing discretion. Error may not be presumed from a silent record." (People v. Brown (2007) 147 Cal.App.4th 1213, 1228-1229.) The record is, at best, silent as to the court's understanding of its discretion. No remand is required.
B. Firearm Enhancements
Appellant argues (and the People agree) he is entitled to a remand of the firearm enhancements pursuant to new legislation which grants trial courts the discretion to strike or dismiss a firearm enhancement. (§ 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018; People v. Robbins (2018) 19 Cal.App.5th 660, 679 [§ 12022.53, subd. (h) applies retroactively in cases that are not yet final on appeal on its effective date].) We will reverse and remand the enhancements to permit the trial court to exercise its discretion.
DISPOSITION
The section 12022.53 enhancements are reversed and remanded to permit the trial court to exercise its discretion under section 12022.53, subdivision (h). In all other respects, the judgment is affirmed.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------