Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA 049943. James Pierce, Judge. Judgment affirmed; remanded for resentencing.
Law Offices of Allen G. Weinberg and Allen G. Weinberg, under appointment by the Court of Appeal for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven G. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Jorge Evaristo Flores appeals his conviction for first degree murder (Pen. Code, § 187, subd. (a)) and assault with a semiautomatic firearm (§ 245, subd. (b)), with true findings that he personally discharged a firearm causing death (§ 12022.53, subd. (d)), and personally used a handgun (§ 12022.5, subd. (a)(1)). He contends the prosecution committed misconduct in questioning him about his pre-arrest silence; the trial court erred in failing to separately instruct on the definition of a “semiautomatic” weapon; that his sentence violated Cunningham v. California;and the abstract of judgment must be corrected. We affirm the judgment, and remand for resentencing.
All statutory references, unless otherwise noted, are to the Penal Code.
(2007) ___ U.S. ___, 127 S.Ct. 856.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Defendant and the victim, Giovanni Perez, were both dating the same woman, Delilah Smith. Smith and Perez attended a surprise birthday party together; defendant arrived at the party, chased Smith and Perez through the house, and shot Perez to death as he ran down the street. Multiple witnesses to the shooting described it to police in interviews.
Much of the testimony at trial was introduced through prior inconsistent statements because several witnesses (Delilah Smith, Victoria Smith, Abbra Contreras, and Marco Orduno) at trial denied making the statements in their police interviews. (See Evid. Code, § 1235; California v. Green (1970) 399 U.S. 149.)
1. Prosecution Case.
Delilah Smith had children with both defendant and Perez, and had known both of them since her teens. Smith was dating defendant at the time of the shooting. They had an “on and off” relationship. Defendant asked her to marry him and gave her a ring. Defendant moved up north for a job and she went to live with him for awhile; he was a good provider for both of her children. However, at the time of the shooting, she had also started dating Perez, who had just gotten out of jail. On September 22, 2001, several of her friends hosted a surprise 19th birthday party for Abbra Contreras at a house on West First Street in San Pedro. The party was held in the backyard, where there was beer and other kinds of alcohol at the party, as well as a DJ.
Delilah Smith may have told defendant about the party, but she believed he already knew because it was his best friend’s girlfriend’s party. Most of the people at the party were gang members and were dressed in gang attire. Defendant was a member of the Rancho San Pedro (RSP) gang. Smith did not know whether Christian Flores, defendant’s brother, belonged to a gang. Smith was in the backyard talking with Perez when she noticed defendant was at the party. She saw defendant’s brother Christian looking over the back wall. She could see that defendant had a gun, because he had his shirt lifted up and his hand underneath his belt, as if “he wanted people to know that he had a gun.”
Defendant saw her, and Smith took off her shoes and started running toward the front of the house. She tapped Perez on the shoulder to let him know defendant was there, and they tried to run for Perez’s car. She turned and saw what looked like Perez getting punched in the stomach, but she knew it was a gunshot. Defendant shot Perez three or four more times. She ran to a neighbor’s house, and knocked on the door. Defendant came towards her, and she heard one more shot. Defendant was shooting at her, and she felt something like pebbles on her face. She ran back to the party to see if Perez was alright. She heard defendant’s brother say, “come on George, let’s go.”
The day after the shooting, defendant told her he would take care of the children, he knew what he did was wrong, and that he was going to have to face what he did. Previously, defendant had provided child support to her. There had also been prior incidents between them; she called the police in May 2000 because defendant had hit her, and in July 2001, she called the police because defendant had broken some windows at her grandmother’s house where she was staying.
She identified defendant and Christian Flores from photographs.
Victoria Smith, Delilah Smith’s sister, knew both defendant and his brother Christian. Victoria Smith saw defendant and Christian come into the backyard, and defendant was waving a gun around. She saw her sister and Perez run through the house and she saw defendant run along the side of the house to the front yard. He had a gun. She saw defendant shoot at Perez, and then a friend of Victoria Smith’s pulled her back into the house. After the shooting stopped, Victoria Smith looked back out front and saw defendant and Christian Flores drive away in a 1997 Honda Accord. She identified defendant as the shooter from a six-pack photographic lineup.
Abbra Contreras saw Delilah Smith and Perez in the backyard. She saw defendant in the backyard, and he was pulling up his pants to show a gun. Some people began to push defendant towards the wall and told him to calm down. They were trying to restrain him. Defendant pulled out his gun, and everyone backed up. Defendant said, “Where’s that fool Giovanni [Perez]?” Defendant ran to the front of the house, and Contreras heard five or six shots. She saw Perez fall to the ground, motionless, and she heard a car screeching away. Contreras identified defendant and his brother from photographs.
During the interview, Detective Ulley showed her his firearm, which was a semiautomatic weapon, and she told him defendant’s gun was similar. At trial, Detective Ulley testified that a semiautomatic is magazine fed, and the magazine is usually located in the handle of the weapon.
Marco Orduno was in the backyard at the party. He saw defendant walk into the backyard. Orduno knew something was going to happen, so he got his wife and cousin and they turned to leave. Orduno saw Perez and Delilah Smith run through the house. When he got to the front of the house, he saw defendant run to the front of the house, stop on the sidewalk, and lift his gun up and start shooting. Orduno heard six rounds.
Perez died of multiple gunshot wounds. One of the gunshot wounds, to the right of the neck, showed stippling, which meant that it had been fired from a range of less than 18 inches. There was no evidence of any defensive wounds, nor was there any gunpowder on Perez’s clothing. Seven bullet casings found at the scene were fired from the same firearm.
2. Defense Case.
Defendant testified on his own behalf that he met Delilah Smith when he was about 15. They dated about eight months before she got pregnant. He moved to Vallejo and got a job in the oil refineries because he wanted to get away from the gang environment. He sent money to Delilah. When he moved back to Los Angeles, he discovered that Delilah had a child with Perez.
On the date of the party, Delilah called him in the afternoon. He was at his brother’s house watching a fight on the television. She said there would be a surprise party for Abbra, and asked if defendant wanted to go with her. Defendant said he could not go because he already had plans with his brother. Later, after he decided to go, defendant’s brother gave him a ride to the party; defendant did not know Perez was going to be there.
When he got to the party, he saw Delilah’s car, so he knew she was there. He told his brother to wait, that he was “going to have it out” with Delilah. Defendant planned to leave if Delilah was at the party. Defendant denied that he brought a gun. Instead, someone handed him a gun and told him to be careful. He took the gun for his safety.
He did not see Delilah in the back, so he went to the front of the house, where he saw Delilah and Perez holding hands. Defendant felt upset and hurt. Perez turned and flicked his cigarette at defendant. Perez ran towards defendant, and reached for his waistband, and pulled out a gun. Defendant was scared. He pulled out his gun, and fired. The next thing defendant knew, he was in the car and they were leaving. Defendant was going to turn himself in, but he was afraid.
Defendant denied calling Delilah and telling her that he knew what he had done was wrong and he had to face it. He learned the next morning his brother had been arrested. He called the police the next morning and told them to let his brother go and that he was going to turn himself in. Defendant went to San Diego and Mexico.
The jury found defendant guilty of count 1, first degree murder, and on count 2, of the lesser included offense of assault with a semiautomatic weapon. The trial court sentenced defendant to an aggregate term of 69 years to life in state prison, consisting of 25 years-to-life on count 1 with a consecutive 25 year-to-life term for the section 12022.53, subdivision (d) firearm enhancement, and the upper term of nine years for Count 2 with the upper term of 10 years for the section 12022.5, subdivision (a) firearm enhancement.
DISCUSSION
I. PROSCUTORIAL MISCONDUCT.
Defendant contends the prosecution’s cross-examination regarding his failure to come forward when his brother was arrested and charged for murder improperly referred to irrelevant and prejudicial material not in evidence, denying his Confrontation Clause rights. He further contends the questioning constituted Griffin/Doyle error because the questions were an impermissible comment on his pre-arrest silence.
A. Factual Background.
During its cross-examination of defendant, the prosecution pursued the following line of questioning:
“Q. Did you feel bad when your brother was arrested and charged with murder?
“A. Yes. I did.
“Q. [You d]idn’t come up and [tell] the story then, did you?
“[Defense counsel’s objection overruled.]
“THE WITNESS:. I tried. I called.
“. . . Q. You didn’t come to court to help your brother, did you?
“A. No, I didn’t.
“[Defense counsel’s objection overruled.]
“The Court: . . . Did you?
“THE WITNESS: No I didn’t.
“The Court. Thank you. [¶] Next question.
“. . . Q. When your brother was facing murder charges, you didn’t come to court and say, ‘Giovanni [Perez] had a gun,’ did you?
“A. No I didn’t.
“Q. In fact, you let your brother plead guilty to these charges.
“[Defense counsel’s objection sustained.]”
Outside the presence of the jury, defendant moved for a mistrial. Defendant pointed out that the testimony regarding defendant’s brother Christian Flores had described his brother as minimally involved; he did some driving, looked over a fence, and stood near defendant at the party. Defendant argued the prosecution’s questions about his brother’s guilty plea implied that if a person who was minimally involved was guilty, then defendant must also be guilty. The court found the questions constituted misconduct, but denied the motion for a mistrial, finding that the court’s instructions to the jury, previously given, had cured the problem.
B. Discussion.
Prosecutorial misconduct “involves the use of deceptive or reprehensible methods to persuade the trial court or the jury.” (People v. Panah (2005) 35 Cal.4th 395, 462.) There may be prosecutorial misconduct even in the absence of intentionality or bad faith. (People v. Bradford (1997) 15 Cal.4th 1229, 1333.) Reversal for prosecutorial misconduct is not required unless defendant has been prejudiced thereby, that is unless it is reasonably probable defendant would have obtained a more favorable result absent the misconduct. (Cal. Const., art. VI, § 13; People v. Hill (1998) 17 Cal.4th 800, 844; People v. Watson (1956) 46 Cal.2d 818, 836.)
1. Defendant Cannot Demonstrate Prejudice from the Prosecution’s Reference to Facts Not In Evidence.
The prosecution’s reference to facts not in evidence constitutes misconduct. (People v. Hill, supra, 17 Cal.4th at p. 827-828.) Such statements “‘tend[] to make the prosecutor his own witness – offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, “although worthless as a matter of law, can be ‘dynamite’ to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence.” [Citations.]’” (Id. at p. 828.)
Here, the prosecutor’s questions regarding defendant’s brother Christian Flores were improper because they referred to his arrest and plea, thereby implying that defendant was also guilty. However, defendant cannot demonstrate the questions affected the result at trial. The trial court instructed the jury that the prosecution’s questions did not constitute evidence; furthermore, there was overwhelming evidence of defendant’s guilt, as well as evidence implicating defendant’s brother. Therefore, any reference to Christian Flores’s arrest and guilty plea was not likely to have affected the verdict.
2. Griffin/Doyle Error.
The prosecution may not, consistent with due process and fundamental fairness, use post-arrest silence following Miranda warnings to impeach a defendant’s trial testimony. (Doyle v. Ohio (1976) 426 U.S. 610, 617-618 (Doyle).) Miranda warnings implicitly assure that the defendant’s silence will not be used against him; therefore, it is unfair to use that silence to impeach the defendant at trial. (People v. Earp (1999) 20 Cal.4th 826, 856.)
Miranda v. Arizona (1966) 384 U.S. 436.
Doyle error can occur either in questioning of witnesses or during jury argument. (People v. Evans (1994) 25 Cal.App.4th 358, 368.) A single unanswered question may constitute Doyle error if the question improperly refers to the defendant’s silence, and a defense objection to the question is erroneously overruled. (Ibid.) Doyle error requires reversal of the judgment unless the error was harmless beyond a reasonable doubt under the standard of Chapman v. California (1967) 386 U.S. 18, 24. (People v. Earp, supra, 20 Cal.4th at p. 858.) Under this test, we evaluate whether the guilty verdict actually rendered in the trial was unattributable to the error. (People v. Quartermain (1997) 16 Cal.4th 600, 621.)
Here, the Doyle rule does not apply because defendant, while evading police, had not been given his Miranda warnings. In Earp, the Supreme Court distinguished between comment on the defendant’s silence before he received Miranda advisements, which was permissible under Fletcher v. Weir (1982) 455 U.S. 603, 606-607, and comment on his silence after the advisements, which was prohibited under Doyle. (Earp, supra, 20 Cal.4th at pp. 856-857.) Thus, commentary on defendant’s failure to come forward and tell his story prior to his arrest does not have the effect of extinguishing his Miranda rights.
Under Griffin v. California (1965) 380 U.S. 609, 615, the prosecution may not comment on the defendant’s exercise of his or her right not to testify at trial. Griffin error can also be found where the reference to the defendant’s failure to testify is indirect or veiled. “[I]t is [Griffin] error for a prosecutor to state that certain evidence is uncontradicted or unrefuted when that evidence could not be contradicted or refuted by anyone other than the defendant testifying on his or her own behalf. [Citations.] . . . [I]t is error for the prosecution to refer to the absence of evidence that only the defendant’s testimony could provide.” (People v. Hughes (2002) 27 Cal.4th 287, 371-372.) Here, the prosecution’s comments do not implicate Griffin because the defendant did not testify at trial, and the prosecution did not identify any failure by defendant to provide evidence to explain any gaps in the testimony at trial.
II. NO INSTRUCTIONAL ERROR IN FAILURE TO SEPARATELY DEFINE “SEMI-AUTOMATIC” WEAPON.
Defendant argues his conviction on count 2 for assault with a semiautomatic firearm must be reversed because he was denied his constitutional right to due process as a result of the trial court’s failure to define the term “semiautomatic” firearm; he asserts that the instruction as given improperly removed an element of the offense defined in section 245; subdivision (b).
Section 245, subdivision (b) provides: “(b) Any person who commits an assault upon the person of another with a semiautomatic firearm shall be punished by imprisonment in the state prison for three, six, or nine years.”
The instruction given here did not improperly remove an element of the offense from the jury’s consideration. “‘[T]he language of a statute defining a crime or defense is generally an appropriate and desirable basis for an instruction, and is ordinarily sufficient when the defendant fails to request amplification. If the jury would have no difficulty in understanding the statute without guidance, the court need do no more than instruct in statutory language.’” (People v. Estrada (1995) 11 Cal.4th 568, 574, quoting People v. Poggi (1988) 45 Cal.3d 306, 327.) The Estrada court further held, “When a word or phrase ‘“ is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request.”’” (People v. Estrada, supra, 11 Cal.4th at p. 574, quoting People v. Rowland (1992) 4 Cal.4th 238, 270-271.)
Here, the trial court instructed the jury: “Assault with a Semi Automatic Firearm is a lesser charge to that in count 2. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant did an act with a semiautomatic firearm that by its nature would directly and probably result in the application of force to a person. . . .”
“Semiautomatic firearm” is not a technical legal term requiring clarification by the court. (See People v. Estrada, supra, 11 Cal.4th at p. 574 [“A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning].) The jury would have no difficulty in understanding the statutory language without guidance. As a result, the trial court had no obligation to further define semiautomatic weapon.
Furthermore, any error in failing to define “semiautomatic weapon” was harmless. (Chapman v. California, supra, 386 U.S. at p. 24.) Officer Ulley testified that a semiautomatic firearm differed from a revolver in that a semiautomatic was magazine-fed; as one round is expended, from the explosive reaction of that round being fired, another round is placed into the chamber. With a revolver, after a round is fired, the revolver will click to the next chamber. This definition mirrors that found in Webster’s Third New International Dictionary (2002), at page 2063, which defines a semiautomatic weapon as a firearm “that employs . . . force of recoil and mechanical spring action in ejecting the empty cartridge case after the first shot and in loading the next cartridge from the magazine.” Because Detective Ulley’s explanation regarding the nature of a semiautomatic weapon was accurate and the term “semiautomatic” did not have a technical meaning, the trial court’s failure to define the term was harmless under any standard of reversible error. (Chapman v. California, supra, 386 U.S. at p. 24.)
III. THE TRIAL COURT IMPROPERLY IMPOSED THE HIGH TERM ON THE ENHANCEMENT.
Defendant contends his upper term sentence on count 2 and imposition of the upper term on the gun enhancement for that count violated due process because no aggravating factors were alleged in the information, nor did the jury find any true beyond a reasonable doubt. He contends the error was not harmless because no rational jury could have found the aggravating factors, which are functionally the elements of the offense, because none was alleged. (Cunningham v. California, supra, 549 U.S. ___ [127 S.Ct. 856].)
A. Factual Background.
Defendant’s sentence of 69 years-to-life consisted of 50 years on count 1 and 19 years on count 2. The sentence on count 2 consisted of the upper term of nine years for the assault with a semiautomatic firearm, plus the upper term of 10 years on the firearm enhancement under section 12022.5, subdivision (a). As to the underlying offense, the court stated that it found the aggravating factors outweighed the mitigating factors because of the high degree of violence and defendant’s previous probation for violence against the same victim; as to the enhancement, the court found the high term appropriate because of the high degree of violence. Defendant admitted a previous conviction of domestic violence against Delilah Smith, and defendant’s probation report contained two prior convictions for corporal injury to a spouse for which he received probation.
B. No Cunningham Error As To The Underlying Offense.
In People v. Black (2007) 41 Cal.4th 799, our Supreme Court held that prior convictions and related facts involving a defendant’s recidivism, need not be found by a jury under Blakely and Cunningham to make a defendant eligible for the upper term sentence. Black also held that as long as at least one aggravating factor is proven in a manner that satisfies Cunningham, the defendant is eligible for the upper term, and any additional fact-finding by the court does not violate Cunningham. (Black, supra, at pp. 805-806, 812-820.) Nor does the requirement of proof beyond a reasonable doubt apply to the aggravating fact of a prior conviction. (People v. Sandoval (2007) 41 Cal.4th 825, 836-837.) Here, the admitted fact of defendant’s prior conviction and probation made him eligible for the upper term on count 2 even in the absence of any jury finding supporting the finding of a high degree of violence. (Black, supra, 41 Cal.4th at p. 813.)
C. The Court Erred In Imposing The Upper Term On The Enhancement.
The court solely relied on the high degree of violence, a fact not found by the jury, in imposing the upper term on the enhancement. However, because that factor was not a fact found by the jury, under Cunningham, the trial court could not use it to enhance defendant’s sentence. (Cunningham, supra, __ U.S. at p. ___; 127 S.Ct. at p. 868.) The trial court could not have relied instead on defendant’s prior conviction, as it did for the underlying offense, because to have done so would have been an improper dual use of facts. (See People v. Scott (1994) 9 Cal.4th 331, 350 [trial court may not use same factor to impose upper term on offense and impose enhancement].)
However, the record discloses that defendant suffered more than one prior conviction, making available for the trial court’s use additional convictions to properly impose the upper term on the enhancement. Because the court declined to use these additional priors in the first instance, we cannot presume that it found them appropriate to use. Accordingly, we must remand for the trial court to exercise its discretion with respect to sentencing on the enhancement on Count 2.
IV. CORRECTION OF ABSTRACT OF JUDGMENT.
Defendant contends, and the People concede, that the abstract of judgment erroneously reflects that defendant was convicted on count 2 of attempted murder. The abstract shall be corrected to reflect that defendant was convicted of assault with a semiautomatic firearm. (§ 245, subd. (b).)
DISPOSITION
The judgment of conviction is affirmed, and the matter is remanded for resentencing in accordance with this opinion. The trial court is directed to correct the abstract of judgment to reflect that on Count 2, defendant was convicted of assault with a semiautomatic firearm. (§ 245, subd. (b).)
We concur: PERLUSS, P. J., WOODS, J.