Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03F05730
BLEASE, Acting P. J.
A jury convicted defendant Christian Espinoza of the attempted murder of and assault with a firearm on Jesus Aguirre. The jury found true the allegations that defendant used and intentionally and personally discharged a firearm in the commission of attempted murder and personally used a firearm within the meaning of Penal Code sections 12022.53, subdivision (c), 12022.5, subdivision (a) and (d) and 1192.7, subdivision (c)(8). The jury further found defendant guilty of possession of a concealed firearm and a loaded firearm in a public place. (§§ 12025, subd. (b)(6), 12031, subd. (a)(2)(f).) Subsequent to the jury verdicts, the trial court found true an allegation that defendant had suffered a prior conviction for the crime of assault with a deadly weapon, a serious felony. The trial court sentenced defendant to a prison term of 35 years and four months.
Future references to an undesignated section are to the Penal Code.
Defendant claims evidentiary error, prosecutorial misconduct, sentencing error, and error in selecting the jury. Defendant also argues the trial court erred when it failed to instruct the jury, sua sponte, on a “heat of passion” theory of attempted voluntary manslaughter as a lesser included offense to attempted murder.
There were only two percipient witnesses, the defendant and the victim, who testified at the trial and the credibility of each was in dispute. We shall conclude their differing accounts of the events that gave rise to the charge of attempted murder provided sufficient grounds to require the giving of an instruction on the included offense of attempted voluntary manslaughter on a heat of passion theory. We shall further conclude the error was prejudicial pursuant to People v. Watson (1956) 46 Cal.2d 818 (Watson), and shall reverse the judgment of conviction for attempted murder. We shall affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
As noted, there were only two percipient witnesses who testified at trial, the defendant Christian Espinoza and the victim Jesus Aguirre, each of whom gave differing accounts of the events.
Around 4:30 p.m. on June 5, 2003, Jesus Aguirre pulled his green Thunderbird into his parking space in the alley behind his apartment building at 739 Dixieanne Avenue in Sacramento. His cousin, Lalo Leon, was in the car with him. As he was pulling into his parking space, Aguirre noticed three or four men hitting on the door of a house located across the alleyway. Aguirre recognized one of the men as defendant. Aguirre did not know defendant and had never spoken to him, but he had seen him around the apartments.
As Aguirre and Leon, who was carrying a six-pack of beer they had just purchased, got out of the car, the men they had seen hitting the neighbor’s door came up and began an unprovoked attack on them. They hit Lalo first. Defendant hit Aguirre everywhere on his body. More attackers came so that there were about seven in all. One of them had a bat, and one had a tire iron.
Aguirre tried to defend himself with a broom he picked up. He could not remember if he hit any of them with the broom, because they hit him in the head with the tire iron, and he almost fainted. When he could not defend himself, he ran. After the group started hitting Aguirre, defendant asked him what gang he was in and what his colors were, but Aguirre did not answer. Aguirre was not in a gang.
Aguirre saw defendant running from the building entrance between 733 and 739 Dixieanne carrying a black pistol. At first defendant was pointing the gun at everybody, then he pointed it at Aguirre and Lalo. When Aguirre saw defendant, he ran across the alley and hid behind a red Jetta. Aguirre hunched down and covered his face and head with his arms and hands. Aguirre felt a shot on his hands, and heard three or four more shots. He saw blood on his hands. Everyone ran away after the shots were fired.
Aguirre went to a pay phone to call his wife. He wanted to call her so she could take him to the hospital. He was not thinking very well, and it did not occur to him to go to his apartment to use the phone. Aguirre’s wife picked him up from the pay phone and took him to a hospital. There were too many people waiting to be seen there, so she took him to a second hospital, where he still had to wait for treatment.
The nurse there told him the hospital would have to call the police. After the doctor saw Aguirre, the police arrived. Officer Schumacher spoke to Aguirre. Aguirre’s wife translated because Aguirre did not speak English. Officer Schumacher observed the injuries on Aguirre’s hands, which appeared to have been grazed by a bullet. He also had a bruise on his left temple.
Aguirre told Officer Schumacher the incident had occurred around 7:30 p.m., while it was still light outside. He stated that when he pulled up to his apartment with Leon, four men were arguing with his neighbor. He gave the description of the man who shot him as a Mexican male, average height and muscular build with a long braided ponytail. He also described another chubby, blond, white male, who he said struck him with a baseball bat. He described trying to hide behind the red Jetta, and being shot by the Mexican male, who fired the gun four to six times.
Aguirre continued to reside at the apartment on Dixieanne for about a month after the incident. During that time he saw defendant several times, even though Aguirre did not go to work or leave the house during that time. Aguirre did not call the police because he did not speak English. However, he identified defendant to his wife, and she called the police.
On June 19, 2003, Officer Laird was dispatched to pick up defendant. He spotted defendant in front of 739 Dixieanne. When he pulled up and exited his marked patrol vehicle, defendant ran away. On July 3, 2003, Officer Laird was on routine patrol when he spotted defendant in front of 739 Dixieanne. Because defendant had a history of running away, Laird called for the assistance of additional officers before trying to apprehend defendant. Officer Laird approached defendant and attempted to put his arm into a twist lock in order to handcuff him. Defendant spun away from Laird, but two other officers were there to grab him. Defendant struggled, but the three officers managed to handcuff him. A search revealed a loaded, black revolver in defendant’s right front pants pocket. The gun was later determined to be registered to someone other than defendant.
Defendant testified at trial. He admitted carrying a gun not registered to him on the date he was arrested. He also admitted having been convicted of a felony as a juvenile. He testified he had one conversation with Aguirre before the incident concerning a youngster in the neighborhood who was afraid of Aguirre after Aguirre had yelled at the boy for pouring water on Aguirre’s car.
On the date of the incident, defendant said he was socializing with his friends when he was told Aguirre had driven through the alley at a high rate of speed. Defendant went over to where Aguirre’s car was parked. Aguirre had backed his car in the space and was standing near the trunk. Aguirre had about four friends with him. Defendant confronted him about driving fast through the alley. Aguirre had a bottle of Corona in his hand, which he was holding like a club. Aguirre told his passenger to open the trunk. The passenger popped the trunk, and one of Aguirre’s companions attempted to hit defendant with a Corona bottle. Aguirre jumped into the fight, and hit defendant with a beer bottle in the right temple. When Aguirre hit him, defendant had no weapon or anything else in his hands. He did, however, have a firearm on his person.
Aguirre kept trying to hit defendant. Three of Aguirre’s friends were also attacking defendant. At some point defendant’s friends joined in the fight. Defendant did not see his friends use any weapons, but three in Aguirre’s group were using beer bottles. Aguirre ran back to the trunk of his car and yelled at someone to pop the trunk. When the trunk was opened, Aguirre pulled out an aluminum baseball bat. Aguirre brandished the bat, and defendant ran away, until he was stopped by a locked gate. Aguirre was screaming at defendant as he ran toward defendant, and was holding the baseball bat as if preparing to swing it. Faced with a locked gate in front of him and Aguirre coming up behind him with the bat, defendant felt he did not have enough time to run away from Aguirre, so he pulled his gun out from his waistband. He fired one shot at Aguirre, then Aguirre ran. He was not trying to kill Aguirre, just stop him. He was afraid because Aguirre had already hit him with the bottle. Defendant was scared Aguirre was going to hit him with the baseball bat. Defendant did not seek medical treatment afterward because he was not seriously hurt.
The jury convicted defendant of attempted murder and found true the allegation that he used and intentionally and personally discharged a firearm when he committed the attempted murder. (§§ 664/187, 12022.53, subds. (b) & (c).) The jury also convicted defendant of assault with a firearm, and found true the allegation that defendant personally used a firearm in the commission of the assault. (§§ 245, subd. (a)(2), 12022.5, subds. (a) & (d), 1192.7, subd. (c)(8).) The jury convicted defendant of possession of a concealed firearm, and of possession of a loaded firearm by a person other than the registered owner. (§§ 12025, subd. (b)(6), 12031, subd. (a)(2)(F).)
In a bifurcated proceeding the trial court found true the allegation that defendant had a prior conviction for assault with a deadly weapon and by means of force, which was a serious felony that qualified as a strike under the Three Strikes Law. (§§ 667, subds. (b)-(i) & 1170.12.) The court sentenced defendant to the middle term for attempted murder, which was doubled to 14 years as a second strike under the Three Strikes Law. The trial court imposed the middle term for the assault conviction, but stayed the sentence pursuant to section 654. The court sentenced defendant to a consecutive term of one year and four months (the middle term) for possession of a concealed firearm, and stayed defendant’s sentence for possession of a loaded firearm registered to another person. The court imposed a 20-year enhancement to the attempted murder count for personally and intentionally discharging a firearm. Defendant’s total sentence was 35 years and four months.
DISCUSSION
I
Exclusion of Evidence to Impeach Aguirre
Prior to the presentation of witnesses, the trial court took up the matter of several incidents defendant proposed to introduce into evidence for the purpose of impeaching Aguirre’s testimony.
Among the evidence defendant sought to use was the following. First, Aguirre was arrested on a misdemeanor charge of giving false identification to a police officer in 2003. Second, at the time of the 2003 arrest, several items were seized from Aguirre’s vehicle, including women’s undergarments, two knives, a pair of gloves, a dildo, condoms, a bottle of yellowish liquid, a container of pellets, and a roll of masking tape. Third, a bench warrant was issued (and was still outstanding at the time of trial) when Aguirre failed to appear in court after the 2003 arrest. Fourth, Aguirre entered the country illegally. Fifth, a separate arrest warrant for giving false identification to a police officer was issued in January 2004. It was unclear whether Aguirre was aware of the existence of the warrant.
The trial court allowed defendant to impeach Aguirre with evidence of the two arrests for giving false identification to the police officer. The court excluded the evidence Aguirre entered the country illegally and the items found in Aguirre’s vehicle. The trial court also excluded evidence of Aguirre’s failure to appear and the resulting bench warrant.
A witness’s past criminal conduct amounting to a misdemeanor that is relevant (i.e., “has some logical bearing upon the veracity of [the] witness”) to impeachment is admissible as impeachment evidence subject to the discretion of the trial court under Evidence Code section 352. (People v. Wheeler (1992) 4 Cal.4th 284, 295.) The past misconduct is relevant if it involved moral turpitude. (Id. at p. 296.) In this case the trial court at first stated its intention to ascertain whether the conduct had “sufficient probative value” by first finding out why Aguirre failed to appear before ruling on the admissibility of the evidence.
Later, without obtaining any additional information regarding Aguirre’s failure to appear, the trial court decided to exclude the evidence, as well as the illegal immigration evidence, pursuant to its discretion under Evidence Code section 352. In explaining its decision, the trial court said,
“whether they are moral turpitude crimes or not is moot, because in a [Evidence Code section] 352 context the Court is already allowing effectively too many trials inside this trial, that is evidence will be adduced and explored with regard to the [Penal Code section] 148.9 in March 2003 and January 2004.
It simply is too time consuming, too confusing. It gets to the point of undue prejudice to the People as well to allow additional mini trials on the immigration status and the reasons why he failed to appear in response to the . . . court order. This is particularly true given the fact that the[re] are two timely incidents involving law enforcement where he is directly untruthful.
And that’s powerful impeachment and that is allowed and it’s the exercise of my discretion under 352, even if they were moral turpitude crimes to exclude the immigration and bench warrant issue.”
A. Failure to Appear
Defendant argues the trial court’s exclusion of evidence regarding Aguirre’s failure to appear was an abuse of discretion under Evidence Code section 352 and a violation of his constitutional rights to confrontation under the Sixth and Fourteenth Amendments to the federal constitution. We shall conclude there was no error.
Evidence Code section 352 provides that it is within the trial court’s discretion to exclude evidence if it finds that the probative value of the evidence is “substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” Defendant claims the trial court abused its discretion because it did not learn the basic facts necessary for an informed decision under Evidence Code section 352, because it undervalued the potential probative value of the evidence, and because the evidence would not have been particularly confusing, time consuming, or prejudicial to the prosecution.
We find no abuse of discretion in this case. The trial court assumed the worst scenario with respect to Aguirre’s failure to appear, i.e., that the failure was a crime of moral turpitude. Thus, it was not necessary for the court to hear evidence about the prior misconduct. The court also assumed that a willful failure to appear before the court would have necessarily been probative of Aguirre’s veracity. Nevertheless, the court found such evidence would be too time consuming and too confusing in light of the fact that other evidence bearing on Aguirre’s veracity would be admitted. The trial court’s discretion to exclude evidence of witness misconduct is broad. (People v. Wheeler, supra, 4 Cal.4th at p. 296.) Trial courts are empowered, “to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.” (Ibid.) The Supreme Court has stated: “impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.” (Id. at pp. 296-297, fn. omitted.)
Even if the trial court had abused its discretion in this case, we would find no prejudice to defendant. The exclusion of the evidence of Aguirre’s failure to appear and resultant bench warrant did not keep the jury from learning of two instances directly bearing on Aguirre’s veracity -- his two arrests for giving a false identification to a police officer. The jury could adequately assess Aguirre’s character for credibility from the impeachment evidence the trial court permitted.
As for defendant’s constitutional argument, “not every restriction on a defendant's desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citations.] California law is in accord. [Citation.] Thus, unless the defendant can show that the prohibited cross-examination would have produced ‘a significantly different impression of [the witnesses'] credibility’ [citation], the trial court's exercise of its discretion in this regard does not violate the Sixth Amendment.” (People v. Frye (1998) 18 Cal.4th 894, 946.) We have determined the defendant was not prejudiced by the excluded evidence because other evidence was admitted bearing on Aguirre’s credibility. We necessarily conclude the excluded evidence would not have produced “a significantly different impression” of Aguirre’s credibility.
B. Evidence of Aguirre’s Illegal Entry
As previously stated, past criminal conduct involving moral turpitude is admissible to impeach a witness in a criminal proceeding, subject to the trial court’s discretion under Evidence Code section 352. (People v. Wheeler, supra, 4 Cal.4th at p. 295.) The trial court expressed its opinion that illegal entry did not involve moral turpitude, but further found that whether or not the conduct involved moral turpitude, the evidence was too confusing and time consuming to present to the jury.
We need not decide whether Aguirre’s illegal entry was conduct involving moral turpitude because the trial court did not abuse its discretion by excluding the evidence. Defendant argues the trial court abused its discretion because the evidence was highly probative, because the trial court did not ascertain the circumstances of Aguirre’s entry, and because the evidence would not have been unduly prejudicial. However, evidence of Aguirre’s illegal entry would not have been as probative of his credibility as the evidence he gave a false name to the police -- evidence the trial court allowed. The trial court cannot be faulted for failing to determine whether Aguirre’s illegal entry involved moral turpitude, i.e., a “general readiness to do evil.” (People v. Castro (1985) 38 Cal.3d 301, 314, italics deleted.) Assuming the facts surrounding Aguirre’s entry would have shown such moral turpitude, it was well within the trial court’s discretion to conclude the evidence to be introduced to make such a determination would have consumed an undue amount of time and would have confused the jury. Additionally, considering the current politically charged nature of illegal immigration, someone on the jury could have been unduly prejudiced against Aguirre because of his illegal entry.
Additionally, even if we were to find the trial court abused its discretion in failing to allow evidence of Aguirre’s illegal entry, we would find no prejudice given the other, more probative evidence of Aguirre’s credibility which the trial court admitted. The trial court did not err in excluding the evidence, and defendant was not denied his constitutional rights.
II
Defendant’s Prior Felony
Defendant had a juvenile record, including a juvenile adjudication for assault with a deadly weapon when he was 16. During a pretrial hearing defense counsel argued the incident should not be admitted. Counsel stated there was no conviction, but rather a juvenile adjudication. He recognized that the two, “in many ways are similar[.]” He argued that the similarity of the prior to the current charge rendered it highly prejudicial, and said, “I think, that the relevant fact should the Court allow it at all, the relevant fact isn’t that he suffered a conviction or adjudication for assault with a deadly weapon; it’s that he stood convicted of a felony at the age of 16. [¶] And I would ask A, that it be eliminated or not be used to impeach; or B, that impeachment be limited to the fact that he was convicted of a felony.”
Defendant was 23 years old at the time of the current offense.
The trial court ruled that the juvenile prior could be used to impeach defendant and stated that since the prior was similar to the present offense, “to avoid any undue prejudice the defendant can limit the impeachment to the use of the word felony as being probably the best option, moral turpitude, felony if you want it, but felony either one or the two.” Defense counsel stated he would choose the term “felony” and noted the term “conviction” was “technically incorrect.” “However,” he stated, “in the context of the Court’s ruling probably not grossly inappropriate with the Court’s preference be referred to as a felony conviction or felony adjudication.” The court stated it was, “[p]robably more correct not to use the word conviction; although, it is almost a distinction without a meaning.”
Later, just before defendant testified, defense counsel raised the issue of defendant’s prior again. “I know you ruled on in limine and I don’t recall the exact framing of your ruling. . . . The fact that he has a prior felony adjudication, what is the language that is admissible?” The court replied that “prior felony adjudication” and “prior felony conviction” were admissible. The court stated, “[t]he distinction between adjudication and conviction is a subtl[et]y which we understand which the jury will not.” The prosecutor stated her preference for the word “conviction” because she felt the jury would not know the meaning of an “adjudication[.]” Defense counsel said, “I accept that language.” Defense counsel expressed his preference for leaving out any moral turpitude language. The court ruled, “[t]hat’s your language. And just so we’re clear, because we are revisiting this, the reference to the prior use of [a] deadly weapon, the 245(a) would, of course, be prohibited under the current state of the law.”
Thereafter defense counsel asked defendant if he had been “convicted of a felony[,]” to which defendant replied, “[y]es, as a juvenile.” In her closing argument, the prosecutor referred to defendant as a “convicted felon” three times without objection. Defense counsel also referred to defendant’s felony “conviction” in his closing argument.
Defendant now claims the trial court erred when it allowed him to be impeached with evidence of a “felony conviction” as opposed to a “juvenile adjudication.” Defendant does not argue that the evidence of the prior conduct was not admissible for impeachment, an issue decided against him in People v. Lee (1994) 28 Cal.App.4th 1724, 1740. He merely argues the court erred in allowing the prior to be called a felony conviction.
Because defendant did not raise this claim of error below, and in fact acquiesced in the use of the terminology, the issue is not preserved for appeal. (People v. Stowell (2003) 31 Cal.4th 1107, 1114.) Defendant argues his trial counsel rendered ineffective assistance by failing to object to the felony conviction terminology. We disagree.
An appealing defendant seeking to establish a claim of ineffective assistance of trial counsel has the burden of showing that his trial counsel failed to represent him in a reasonably competent manner, and that this failure “resulted in the withdrawal of a potentially meritorious defense.” (People v. Pope (1979) 23 Cal.3d 412, 425, overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) If defendant meets this burden, we look to see if the record contains any explanation for the challenged action. (People v. Pope, supra, 23 Cal.3d at p. 425.) If it does, we determine whether the explanation demonstrates trial counsel acted within the range of reasonable competence. (Ibid.) If trial counsel was reasonably competent, the conviction must be affirmed. (Ibid.) Even where the record adequately demonstrates deficient performance, the defendant is not entitled to relief unless it is reasonably probable a more favorable outcome would have resulted in the absence of trial counsel’s failings. (People v. Lewis (1990) 50 Cal.3d 262, 288.)
In this case, the record discloses that defendant’s trial counsel made a tactical decision to ask that the impeaching information against defendant be referred to as a prior felony conviction, rather than allowing defendant’s actual conduct to impeach him. Defense counsel explained this was because the similarity of the prior assault with a deadly weapon to the current offense would make the admission of the facts of the prior case unduly prejudicial. Trial counsel’s tactical decisions are entitled to great deference, and a reviewing court will defer to counsel’s reasonable tactical decisions. (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) Counsel’s decision to refer to the prior as a conviction or adjudication rather than have the prejudicial facts of the prior adjudication admitted was well within the bounds of reason.
It also appears counsel did not insist that the prior be referred to as an “adjudication” because he understood that as a practical matter for the purpose of impeachment, a juvenile adjudication is similar to a conviction, and the use of the word “conviction” would not be inappropriate. The court agreed that in the context it was being used, the difference between “conviction” and “adjudication” would be a “distinction without a meaning.” The court further indicated, and defense counsel did not deny, that the jury would not understand the difference between a conviction and an adjudication.
This decision by trial counsel was also well within the bounds of reason. We agree that for the purposes of impeachment there is very little difference between a conviction and an adjudication, and that the difference is not one the jury would have understood. The jury was aware that the prior crime defendant was found to have committed occurred when he was a juvenile. Finally, because the jury was likely unaware of the technical difference between the two terms, and because the technical difference was immaterial for the purpose of impeaching defendant’s testimony, there is no reasonable probability that the result of the proceeding would have been different if defense counsel had insisted the term “adjudication” be used. Defendant has failed to meet his burden of proving his claim of ineffective assistance.
III
Prosecutorial Misconduct
At the very end of the prosecutor’s closing argument, she made the following statement.
“If you are going to say that this is self-defense, then you are going to say it is okay what he did. If you are going to do that, you may as well take out an ad in the Sacramento Bee and invite any convicted felon who wants to pack a gun, come on and move to Sacramento, because it is okay to do that here. We don’t mind. We’ll call it self-defense.”
Defendant’s trial counsel made no objection to this statement. The prosecutor finished her closing remarks in just five more sentences.
Defense counsel began his closing argument in the following manner.
“You know I had all these nicely prepared arguments I was going to make and I was going to start with something. [¶] It is just a great beginning point. It is really good but something the District Attorney said pushes me away from that. I wanted to respond to that, then I will get to that nicely prepared really good opening . . . . Towards the close [of] the District Attorney’s argument, she did a couple of things that were sort of outrageous to me.
A litany of don’t let him this, don’t let him that, don’t let him think it is okay. You might as well take an ad out in the Sacramento Bee. She is not appealing to the facts of this case. She is not appealing to your sense of logic in doing that. [¶] That is a direct appeal to your reasonable fears of crime. You might as well take an ad out in the Sacramento Bee and invite all the felons to come to Sacramento if you find him not guilty. If I didn’t prove my case who cares, just don’t let them think it is okay.
That is ridiculous. You can convict him of any counts that you are convinced beyond a reasonable doubt he is guilty of. That’s it. [¶] If you are unconvinced your job, your oath, your duty what we’re paying you the grand and glorious sum of fifteen dollars a day, I think it is for, is to apply the law to the facts and come up with a decision that is consistent with the law and the facts.
You are not being asked to send him a message. You get verdict forms. None of them will say do you think this was cool? Hey, was it okay for this to happen? Is it really neat for that to happen? Should we take out an ad in the Sacramento Bee? [¶] You are not buying ads in the Sacramento Bee. You are not sending invitations to anybody to do anything with your verdict.
With your verdicts, what you are doing is determining whether her evidence is sufficient to prove beyond a reasonable doubt that Mr. Espinoza is guilty of any of the charged offenses. That’s all. Don’t let her confuse you by saying if you find him not guilty of something, it sends some confusing message out to criminals all over the place. They might as well come on down and make Sacramento their headquarters.
Don’t confuse any failure of proof you may find as to Count One and Two with sending some kind of a message. Your verdict form isn’t about sending a message. Your verdict form is about whether the People have proven and proven beyond a reasonable doubt the truth of their charges. [¶] And don’t let some appeal to your fears, to your emotions, to something else change your job which is to decide this case on the facts and the law.”
Later, defense counsel revisited the matter, stating:
“The end of her first close we heard a litany about don’t tell them this, don’t tell them that. Honestly, the only thing you are going to tell them with your verdict is whether the People have satisfactorily proven his guilt. It is not about anything else. It is not about what ads you think should appear in the Bee and it is not about whether you approve.
After this case is all done and you’ve been excused, if there is something or someone you don’t approve of let them know. But that’s not what your verdict is about. Your verdict is about whether his guilt has been satisfactor[ily] proven and if not he is entitled to a verdict of not guilty.
So if you hear a lot of don’t tell him what he did was okay. You are not. If you find him not guilty, what you are telling us is that you are not satisfactorily convinced beyond a reasonable doubt of his guilt of that charge. [¶] That’s all. You are not telling him he deserves a medal for his conduct. You are not telling him that you got together you had a discussion and you think it is really cool. [¶] And you are not telling him it is okay to carry a gun. . . . You are not telling him go ahead and carry a gun. That’s cool, do it every time you want. . . . You are not telling him that we think what you should do is go around shooting people. You are telling them that on the facts of this particular case, on the evidence presented by the District Attorney and by the defense side through the questions asked of witnesses and stipulations, we are not satisfied beyond a reasonable doubt that you’re guilty of those offenses that’s all you are telling him.”
After the verdicts were rendered, the defendant, representing himself, brought a motion for new trial in which he raised the issue of prosecutorial misconduct based upon the prosecutor’s comments in closing argument. The trial court denied the new trial motion, stating: “there is just nothing here that rises to that level [of prosecutorial misconduct] . . . . [¶] . . . [¶] There is nothing that the prosecutor did here that is egregious of the kind of nature that would seriously give consideration to a new trial motion.”
“As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion - and on the same ground - the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.” (People v. Samayoa (1997) 15 Cal.4th 795, 841.) This general rule does not apply where either a timely objection and/or a request for admonition would have been futile. (People v. Hill, supra, 17 Cal.4th at p. 820.) A subsequent argument in a motion for new trial does not substitute for a timely objection. (People v. Williams (1997) 16 Cal.4th 153, 254.)
Defendant argues he did not forfeit this argument by failing to raise it because it would have been futile to object. He concludes an objection would have been futile because his motion for new trial was denied based upon the trial court’s determination that the prosecutor’s remarks did not rise to the level of prosecutorial misconduct. However, the trial court found that nothing the prosecutor did was egregious enough to warrant a new trial. It does not follow that the trial court would not have sustained an objection and given the jury an appropriate admonishment if defendant had timely objected. Because we conclude a timely objection would not have been futile, the argument was forfeited when it was not raised at trial.
Defendant asserts his trial counsel was ineffective for failing to object to the prosecutor’s comments. However, where, as here, the record does not reveal why counsel failed to object, we must reject the claim of ineffective assistance unless counsel was asked for an explanation and failed to provide one or there could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
Here, defense counsel met the prosecutor’s statements with a thorough and vigorous rebuttal. Defense counsel explained to the jury the fallacy of the prosecutor’s argument more completely than any admonition from the court likely would have. This was a rational tactical decision on the part of defense counsel which we will not second guess. (People v. Hinton (2006) 37 Cal.4th 839, 876.)
IV
Cumulative Error
Defendant contends the foregoing errors are prejudicial when viewed singly or in combination. We have found no error in the trial court’s admission or exclusion of evidence. We have also concluded defendant received effective assistance of counsel. Accordingly, there was no cumulative error.
V
Lesser Included Offense Instruction
The trial court instructed the jury on the elements of attempted murder and the lesser included offense of attempted voluntary manslaughter on the theory of unreasonable self defense. The court did not, however, give an attempted voluntary manslaughter instruction on the theory defendant acted in the heat of passion.
California law requires a trial court to instruct on all lesser necessarily included offenses, even in the absence of a request. (People v. Breverman (1998) 19 Cal.4th 142, 148-149 (Breverman).) “The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given.” (Id. at p. 154 and fn. 5.) Voluntary manslaughter is considered a lesser necessarily included offense of intentional murder. (Id. at p. 154.) Likewise, attempted voluntary manslaughter is a lesser necessarily included offense of attempted murder. (People v. Heffington (1973) 32 Cal.App.3d 1, 11-12.)
In Breverman, supra, the Supreme Court held that a trial court must, sua sponte, give an instruction on any and all lesser included offenses or theories of lesser included offenses. (19 Cal.4th at p. 160.) “In a murder case, this means that both heat of passion and unreasonable self-defense, as forms of voluntary manslaughter, must be presented to the jury if both have substantial evidentiary support.” (Ibid.)
Instructions on a lesser included offense are required if the 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.]” (Breverman, supra, 19 Cal.4th at p. 162.) In assessing whether there is substantial evidence of the lesser offense, courts may not evaluate the credibility of witnesses. (Ibid.)
The People point to defendant’s testimony that he was not trying to kill or injure Aguirre, and that he was not angry. They argue this expressly refutes any claim defendant acted under a sudden quarrel or heat of passion; therefore, there was not substantial evidence of heat of passion at trial which would have required the trial court to instruct on that theory. However, defendant testified he was scared, and that he was afraid he was going to be hit with a baseball bat. Heat of passion may be produced by fear as well as another intense emotion. (People v. Mitchell (1939) 14 Cal.2d 237, 252.)
Defendant’s testimony, which we do not evaluate for credibility, that he was afraid because Aguirre was running at him with a bat and preparing to hit him, constitutes evidence from which a reasonable jury could conclude that defendant acted from fear rather than from judgment when he pulled out his gun and shot Aguirre. (See People v. Berry (1976) 18 Cal.3d 509, 515 [the fundamental inquiry is whether defendant’s reason was so obscured by some passion that he acted from this passion rather than from judgment].) Accordingly, there was substantial evidence of the lesser offense of attempted voluntary manslaughter based on a heat of passion theory, and the trial court erred in failing to give such an instruction sua sponte.
Breverman teaches that in a noncapital case, such error is reviewed under the standard set forth in Watson, supra, 46 Cal.2d at page 836, and “is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome.” (Breverman, supra, 19 Cal.4th at p. 165.) Under Watson, reversal is required only if “‘after an examination of the entire cause, including the evidence’ [the court] is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (46 Cal.2d at p. 836.) Watson explains that this test is “essentially the same” as the double negative test, that “a reversal [is] required if the court is of the opinion that ‘a different verdict would not have been improbable had the error not occurred’ [Citation] . . . .” (Id. at pp. 836-837.) “[T]he double negative approach . . . presupposes that a reversal will result only when there exists, in the opinion of the court, at least such an equal balance of reasonable probabilities as to leave the court in serious doubt as to whether the error has affected the result.” (Id. at p. 837.)
Appellate review under the Watson standard, “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 evidence in this case did not overwhelmingly point to defendant’s guilt. Only two witnesses, defendant and Aguirre, testified about the events surrounding the fight. Essentially, this case was a credibility contest between Aguirre and defendant. Both witnesses had credibility problems because of prior bad acts. (See sections I and II, infra.) Moreover, the jury’s rejection of the imperfect self defense voluntary manslaughter theory does not mean it would not have found all the elements of voluntary manslaughter based on heat of passion. Voluntary manslaughter based on imperfect self defense requires the defendant to have had an actual, if unreasonable, belief that he was in imminent danger to life or great bodily injury. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) The jury reasonably could have found on the facts presented here that defendant did not actually believe his life was in danger or that he was about to suffer great bodily injury, yet still have found he acted out of fear rather than reason.
Additionally, the court instructed the jury that the right of self defense was only available to a person engaging in mutual combat if that person has tried in good faith to stop fighting, has informed his opponent that he wants to stop fighting, has informed his opponent that he has stopped fighting, and has given his opponent an opportunity to stop fighting. The jury may have believed defendant was required to meet these criteria to satisfy the elements of imperfect self defense voluntary manslaughter.
Under the circumstances of this case, there is “such an equal balance of reasonable probabilities as to leave the court in serious doubt as to whether the error has affected the result.” (Watson, supra, 46 Cal.2d at p. 837.) We conclude the trial court’s error in failing to sua sponte instruct the jury on the lesser included offense of heat of passion voluntary manslaughter was prejudicial under the Watson standard.
Because we are reversing the conviction for attempted murder, we need not consider defendant’s argument that his trial counsel was ineffective for failing to interview a neighbor who told police she heard only one shot. The only prejudice defendant claims from the witness’s failure to testify is that the prosecutor used the fact of multiple gunshots to argue intent to kill for the purpose of proving attempted murder.
VI
Jury Selection
The prosecutor made seven peremptory challenges before the jury was sworn in. Her second challenge was to Kenneth F., who was African American. Her fifth challenge was to Simond J., who was also African American. Her seventh challenge was to Manuel H., who was Hispanic. Defendant made a Wheeler motion after each of these challenges, arguing the prosecutor was not using her peremptory challenges in a race-neutral manner. After the jury was sworn in one of the sworn jurors, who was of Mexican heritage, told the court he had anxiety disorders, that he was not comfortable deciding a person’s guilt or innocence, and that he did not know if he could reach a verdict. The trial court allowed the prosecutor to reopen the exercise of peremptory challenges, she challenged the juror, and defendant did not make a Wheeler motion as to that juror.
People v. Wheeler (1978) 22 Cal.3d 258, overruled in part by Johnson v. California (2005) 545 U.S. 162 [162 L.Ed.2d 129].
The record does not indicate the ethnic makeup of the jury that was finally sworn in. We note, however, that at least one juror appears to have a Hispanic surname (Aviles). Defendant is Native American.
When defendant made his first Wheeler motion as to Kenneth F., his showing that the prosecutor’s peremptory challenge was motivated by a discriminatory purpose consisted of the fact that 50 percent of the prosecutor’s challenges had been used against African Americans, leaving no African American jurors among the 12 prospective jurors being questioned.
The trial court ruled defendant had not made a prima facie case of discrimination “because [Kenneth F.] and the defense attorney Mr. Sampson have had a prior acquaintanceship or social acquaintanceship. [¶] They played cards together[;] that alone constitutes a proper basis for a challenge.”
During jury voir dire the trial court asked the prospective jurors if anyone wanted to talk to the court about the subject of race outside the presence of the other prospective jurors. Simond J. indicated to the court that he did. When the court later spoke with Simond J., he said that he did not want to speak to the issue of race, but about his son, who was incarcerated at that time in Folsom for rape. When the court asked if he felt his son had been fairly treated, Simond J. responded that he felt, “that there was a misapplication of the Three Strikes law.” He said that he had some frustration with the Alameda District Attorney, but not with the Sacramento District Attorney or with law enforcement generally.
When defendant made his second Wheeler motion as to Simond J., his showing was that Simond J. was African American and that two of the prosecutor’s five peremptory challenges had been used against African Americans. Defense counsel said, “I don’t know how many -- how many jurors of African American descent there are in our group. [¶] But I do know there have only been two who the defense and People have had an opportunity to . . . either challenge or not challenge.”
The trial court found no prima facie case had been made because Simond J.’s son was incarcerated in Folsom prison for rape and Simond J. indicated he thought his son’s sentence was excessive and improper. The trial court also noted that the prospective juror’s “demeanor during this line of questioning manifested to this Court serious concern and anger with regard to the situation that his son finds himself in.”
When the trial court asked the prospective jurors if anyone wanted to talk to the court about the issue of race for any reason, Manuel H. indicated he did. Outside the presence of the other prospective jurors, Manuel H. began by stating, “the first thing that I noticed, sir, when I walked in was that Mr. Espinoza was Hispanic. . . . And I [have] done some research and I know of the over representation of Black males and Hispanic males in prison and that bothers me.” The trial court told Manuel H. it would be improper to “raise the bar” against the prosecutor because the defendant was Hispanic, and asked Manuel H. if he might “raise the bar a little bit” because of the study he had done. Manuel H. replied the he would, “like to say no, sir. But to be honest, I am not sure.” The court then asked Manuel H. whether he could be fair and impartial for the prosecution, and Manuel H. replied that he could. The prosecutor asked whether, if she proved defendant guilty beyond a reasonable doubt, Manuel H. would have trouble convicting him simply because of his race, to which he replied, “I would say no.”
Defendant’s showing with regard to the third Wheeler motion against Manuel H., was that the prosecutor had used three of her seven peremptory challenges against persons of color, and that the jury was coming close to being “all white[.]” Defense counsel argued that the jury was “coming closer and closer to Mississippi of 1960 or something like that.” Notably, defense counsel did not indicate that the prosecutor had challenged all of the non-white prospective jurors, or that the jury would contain no persons of color.
The trial court again found the defense had made no prima facie case of discrimination. The court stated that Manuel H. had indicated in a closed hearing that he had serious concerns about race particularly because of the disproportionate presence of Hispanics and African Americans in the prison system. The court stated that at one point he had indicated he would be hard pressed to return a guilty verdict, although the court had subsequently rehabilitated him. However, the court found that his demeanor, “was that of concern in expressing his initial opinions and stress and difficulty in coming to his final position which reflected rehabilitation response to the Court’s inquiry.”
The trial court then told defense counsel that some of his comments had been “inflammatory and inappropriate.” The court stated, “There is clear basis [for a peremptory challenge] here. If the Court, the Judge sitting here had been the District Attorney, I would have exercised the exact same challenges for the reasons I have articulated here on the record.”
“A prosecutor's use of peremptory challenges to strike prospective jurors on the basis of group bias-that is, bias against ‘members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds’ - violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.] Such a practice also violates the defendant's right to equal protection under the Fourteenth Amendment to the United States Constitution. [Citations.]
“The United States Supreme Court has recently reaffirmed that Batson states the procedure and standard to be used by trial courts when motions challenging peremptory strikes are made. ‘First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citations.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.” [Citation.]’ [Citation.]
“We review the trial court's ruling on the question of purposeful racial discrimination for substantial evidence. [Citation.] It is presumed that the prosecutor uses peremptory challenges in a constitutional manner, and we give deference to the court's ability to distinguish ‘bona fide reasons from sham excuses.’ [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 541 (Avila).)
Defendant first argues the trial court must have used the incorrect standard in ruling on his Wheeler motion. He argues that at the time of trial, binding law in California held that the defendant had to show that it was more likely than not that the prosecutor’s peremptory challenge was based on impermissible group bias. (See People v. Johnson (2003) 30 Cal.4th 1302, 1306.) However, approximately one year after jury selection in this case, the United States Supreme Court decided Johnson v. California (2005) 545 U.S. 162, 170 [162 L.Ed.2d 129, 139], which held that a defendant must show that the evidence is sufficient to permit the trial judge to draw an inference of impermissible group bias. Defendant recognizes that the trial court did not articulate the standard by which it judged whether defendant had made a prima facie case, but argues we must reverse because the trial court would have been bound to apply the “more likely than not” standard.
The California Supreme Court has considered and rejected this argument. Instead, we review the record to resolve the legal question “whether the record supports an inference that the prosecutor excused a juror on the basis of race.” (People v. Cornwell (2005) 37 Cal.4th 50, 73 (Cornwell).)
Defendant also argues the trial court did not properly evaluate whether he had made a prima facie case when it speculated as to a rational, theoretical race-neutral bases for the challenges. Cornwell addressed this issue as well. (Cornwell, supra, 37 Cal.4th at p. 73.) Cornwell noted that Johnson v. California cautioned: “‘The Batson framework is designed to produce actual answers to suspicions and inferences that discrimination may have infected the jury selection process. [Citation.] The inherent uncertainty present in inquiries of discriminatory purpose counsels against engaging in needless and imperfect speculation when a direct answer can be obtained by asking a simple question. See Paulino v. Castro, 371 F.3d 1083, 1090 ([9th Cir.] 2004) (“[I]t does not matter that the prosecutor might have had good reasons . . . [w]hat matters is the real reason they were stricken” . . .).’ (Johnson [v. California], supra, 545 U.S. at p. 172 [162 L.Ed.2d at pp. 140-141].)”
Cornwell held that this cautionary language, “must be read in light of the high court's statement that a prima facie case is established when the ‘defendant satisfies the requirements of Batson's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.’ [Citation.] Once the trial court concludes that the defendant has produced evidence raising an inference of discrimination, the court should not speculate as to the prosecutor's reasons - it should inquire of the prosecutor, as the high court directed. But there still is a first step to be taken by the defendant, namely producing evidence from which the trial court may infer ‘that discrimination has occurred.’ [Citation.]” (Cornwell, supra, 37 Cal.4th at pp. 73-74.)
Additionally, since Johnson v. California, supra, the California Supreme Court has repeatedly concluded that a defendant has failed to establish a prima facie case of discrimination where the record contains grounds for a reasonable challenge of the juror. (People v. Guerra (2006) 37 Cal.4th 1067, 1102; Avila, supra, 38 Cal.4th at p. 553; Cornwell, supra, 37 Cal.4th at pp. 69-77.)
We thus turn to the record regarding each of the challenged jurors to determine whether defendant presented evidence sufficient to permit the trial judge to draw a reasonable inference of discrimination.
When the prosecutor exercised a peremptory challenge against Kenneth F., she had exercised one other peremptory challenge. Therefore, defendant’s argument that 50 percent of her challenges were against African Americans is not persuasive. Although defense counsel stated there were no other African Americans in the 12 jurors then in the box, clearly there were other African Americans in the juror pool, since the prosecutor later challenged another African American. These facts alone are insufficient to infer racial bias. They are particularly insufficient when considered in light of the fact that Kenneth F. was acquainted with defendant’s trial counsel.
Defendant’s showing of discrimination on the challenge of Simond J. was that the prosecutor had used two of her five peremptory challenges against African Americans, and that the prosecutor had challenged both the African American jurors against whom she had an opportunity to exercise a challenge. Even if the prosecutor had challenged the only two African Americans on the entire panel, a circumstance that is not shown on this record, this alone would not be a sufficient prima facie showing. (People v. Rousseau (1982) 129 Cal.App.3d 526, 537 [the fact that there were only two black jurors on the panel and both challenged by the prosecutor was not a prima facie showing].)
Moreover, it cannot be said of the two African American jurors that, apart from their group identification they were “as heterogeneous as the community as a whole.” (Wheeler, supra, 22 Cal.3d at p. 280.) Simond J. had a negative experience with the judicial and penal system because of his son, and the trial court indicated his demeanor during voir dire showed that he harbored anger over his son’s treatment by the system. Simond J. expressed a particular displeasure with the way in which the three strikes law was imposed against his son. This case also involved application of the three strikes law, a fact which may have affected Simond J.’s objectivity. These were sufficient reasons other than racial bias for a peremptory challenge.
Defendant’s showing of bias as to Manuel H. was that the prosecutor had used three of her seven challenges against “jurors of color” (one Hispanic and two African Americans). Defendant argued the jury was “coming close to an all white jury.” However, the record does not indicate that the jury was all white, or that the prosecutor challenged every non-white juror. The showing that the prosecutor exercised three of seven challenges against non-white jurors is insufficient for an inference of racial bias, particularly in light of Manuel H.’s answers on voir dire.
Impermissible group bias occurs “when a party presumes that certain jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds . . . .” (Wheeler, supra, 22 Cal.3d at p. 276.) However, a peremptory challenge may properly be based on a broad range of evidence that suggests juror partiality, even though such evidence may be “apparently trivial” and “highly speculative.” (Id. at p. 275.) In this case, there was a reasonable concern about Manuel H.’s objectivity, given that Manuel H. specifically asked to speak to the court about the race issue, and expressed his belief at one point that he was not sure if he could appropriately apply the reasonable doubt standard. No prima facie case was made as to Manuel H., and the defendant’s Wheeler motions were appropriately denied.
VII
Prior Juvenile Adjudication as a “Strike”
Defendant argues the trial court erred in using his prior juvenile adjudication to impose a two strike sentence. The trial court used the prior juvenile adjudication to double the sentences on both the attempted murder and the assault with a firearm convictions. The assault term was stayed pursuant to section 654.
Defendant argues that pursuant to the Ninth Circuit’s decision in United States v. Tighe (9th Cir. 2001) 266 F.3d 1187 (Tighe), the use of a prior juvenile adjudication violated his rights under the Fifth, Sixth and Fourteenth Amendments because the prior adjudication was not decided by a jury. We decline to follow Tighe.
Tighe held that the trial court could not use a prior nonjury juvenile adjudication to increase the penalty beyond that authorized for the current offense alone. The Tighe majority based its decision on Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), which held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi, supra, at p. 490 [at p. 455].) Tighe held that the Apprendi exception for prior convictions is limited to convictions, “obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt." (Tighe, supra, 266 F.3d at pp. 1194, 1197.)
Decisions of a lower federal court interpreting federal law are not binding on this court. (People v. Williams, supra, 16 Cal.4th at p. 190.) Moreover, California appellate courts, including this court, have rejected Tighe (see People v. Palmer (2006) 142 Cal.App.4th 724, 733; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830-834; People v. Lee (2003) 111 Cal.App.4th 1310, 1315-1316; People v. Smith (2003) 110 Cal.App.4th 1072, 1075-1079; People v. Bowden (2002) 102 Cal.App.4th 387, 393-394.) Specifically regarding juvenile adjudications, these cases have concluded that because a juvenile can be constitutionally adjudicated a delinquent without a jury trial, use of the juvenile adjudication to increase a defendant’s sentence is constitutional. (People v. Palmer, supra, 142 Cal.App.4th at pp. 732-733; People v. Bowden, supra, 102 Cal.App.4th at pp. 393-394; Andrades, supra, 113 Cal.App.4th at pp. 830-831; People v. Lee, supra, 111 Cal.App.4th at p. 1316; People v. Smith, supra, 110 Cal.App.4th at p. 1079.)
In any event, as the prior California cases have noted, Tighe is distinguishable because in that case the fact that increased the defendant’s sentence was not tried to the jury or proved beyond a reasonable doubt, but was a factual finding made solely by the sentencing judge. California’s three strikes law requires that a prior conviction be pleaded and proved beyond a reasonable doubt, and the defendant has a statutory right to a jury trial on the issue of whether he or she suffered the prior conviction. (See People v. Bowden, supra, 102 Cal.App.4th at pp. 392-393.) The use of defendant’s prior juvenile adjudication did not violate defendant’s constitutional rights.
Defendant also argues the trial court abused its discretion in refusing to dismiss the prior strike. In ruling on defendant’s Romero motion, the trial court considered defendant’s prior criminal record and the fact that although defendant’s juvenile record was extensive, there was only one act of violence. However, that act of violence was “very serious” and could have resulted in death. The trial court considered both defendant’s young age when he committed the prior act of violence and the “gang flavor” of the prior act and the present act. The court was particularly concerned that when defendant was arrested for the current offense one month after its commission he was in possession of a weapon. The court considered defendant’s “sharp” intellect and the fact that he had educated himself at CYA. However, the court felt this cut both ways, because it meant defendant had the intellect to understand “what’s going on in himself, in his relationship with other people and in this violent conduct and with regard to this gang background, what impact it is having on him and the importance to separate himself from it.” The trial court concluded that defendant did not fall outside the spirit of the three strikes law.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
A trial court’s failure to dismiss or strike a prior conviction is reviewable under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) Two “fundamental precepts” guide our review of the trial court’s exercise of discretion. (Id. at p. 376.) First, the defendant has the burden of showing that the sentencing decision was irrational or arbitrary, and in the absence of such a showing we presume the trial court properly exercised its discretion. (Id. at pp. 376-377.) Second, we do not substitute our judgment for the judgment of the trial judge; therefore, the decision will not be reversed where reasonable people might disagree. (Id. at p. 377.)
In order to find an exception to the sentencing requirements of the three strikes law, the Supreme Court has set forth “stringent standards” for sentencing courts to follow. (Carmony, supra, 33 Cal.4th at p. 377.) A sentencing court is required to consider, “‘whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’ [Citation.]” (Ibid., quoting People v. Williams (1998) 17 Cal.4th 148, 161.)
A sentencing court’s power to depart from the sentencing norm set forth in the three strikes law is “carefully circumscribe[d,]” and there is a “strong presumption” that a sentence that adheres to the sentencing norm is proper. (Carmony, supra, 33 Cal.4th at p. 378.) Therefore, the sentencing court will only abuse its discretion in failing to strike a prior felony in limited circumstances, such as where the court was not aware of its discretion to dismiss, where the court considered impermissible factors in declining to dismiss a prior, or where the sentencing norms produce an “‘“arbitrary, capricious or patently absurd” result’ under the specific facts of a particular case. [Citation.]” (Ibid.) The Supreme Court has held that the circumstances must be “extraordinary” before we may conclude that a career criminal is outside the spirit of the three strikes law and that no reasonable person could disagree with such a conclusion. (Ibid.)
Defendant argues his circumstances are extraordinary because of his “rough start in life[,]” his “minor” juvenile record (with the exception of one crime of assault with a deadly weapon), his prospect of receiving a harsh sentence without the imposition of the strike, and the meager evidence of gang involvement in the present crime. However, defendant does not claim that the trial court was not aware of its discretion to dismiss the strike or that it considered impermissible factors in declining to dismiss the prior, and we cannot say that no reasonable person could disagree that the trial court’s failure to strike the prior felony produced a patently absurd result.
The trial court based its decision in part because of the “gang flavor” of this case, but that was not, as defendant argues, an arbitrary reason for its decision. The sentencing court is required to consider defendant’s background, character, and prospects in making its determination. The indication that defendant claimed at the time of the prior offense to be a gang member, and that some gang-related statements were made just before the attack in the instant case was pertinent to the factors the trial court was required to consider.
The trial court also properly considered the seriousness of the prior offense, the fact that defendant absconded off of parole, and the fact that defendant had the intellect and ability to change his violent behavior, but had not done so. These were proper considerations, and we find no abuse of discretion.
DISPOSITION
The judgment of conviction for attempted murder is reversed and remanded to the trial court for further proceedings consistent with the views expressed herein. In all other respects the judgment is affirmed. If the prosecution does not elect to retry the defendant on the charge of attempted murder within 30 days of the filing of the remittitur, the stay of the sentence for the assault conviction pursuant to section 654 shall be vacated and the court shall amend the abstract of judgment in compliance with this opinion.
We concur: ROBIE, J., BUTZ, J.