Opinion
B306812
10-19-2021
THE PEOPLE, Plaintiff and Respondent, v. FONUAMANA OFEINA FUAHALA, Defendant and Appellant.
Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr., and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA094013. Curtis B. Rappe, Judge. Affirmed in part, reversed in part, and remanded with directions.
Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr., and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST J.
After a shooting attack on the Tongan Crips Gang (TCG), TCG members went on a murderous rampage within surrounding rival gang territories. For their crimes, defendant and appellant Fonuamana Ofeina Fuahala and fellow gang members were charged and tried together by jury.
Codefendants Lebanon Fifita (Fifita), Samisoni Ilifeleti Lauaki (Lauaki), Otoniel Ventura-Leon (Ventura-Leon), Taniela Fonoifua (Fonoifua), and Calvin Leonard Tonga (Tonga) were also charged and tried with defendant. In the third amended information, Fifita, Lauaki, Ventura-Leon, Tonga, and defendant were charged with conspiracy to commit murder (count 1); Fonoifua was charged with the murder of Sheila Renee Gomez (count 2) and the attempted murder of Henry Godines (count 3); Lauaki and Fonoifua were charged with the murder of Aldalberto Salcedo III (count 4); Fifita, Lauaki, Ventura-Leon, Tonga, and defendant were charged with the attempted murder of Sabrina Young (Young; count 5) and the murder of Kenneth Campos (Campos; count 6); Fonoifua was charged with the attempted murder of Hernesto Ruiz (count 7); Fifita was charged with possession of a firearm by a felon (count 8); Fonoifua was charged with possession of a firearm by a felon (count 9); and Fifita, Lauaki, Ventura-Leon, Tonga, and defendant were charged with the attempted murder of Harry Coburn (Coburn; count 10). (People v. Fifita (July 28, 2020), B294952 [nonpub. opn.], at p. 2, petitions for review denied Sept. 30, 2020 (Fifita).)
The jury found defendant guilty of: (1) conspiracy to commit murder (Pen. Code, § 187, subd. (a); count 1), (2) the attempted willful, deliberate, and premeditated murder of Young (§§ 664, 187; count 5), (3) the first degree murder of Campos (§ 187, subd. (a); count 6), and (4) the attempted willful, deliberate, and premediated murder of Coburn (§§ 667, 187, subd. (a); count 10). (Fifita, supra, B294952, at p. 4, fn. 3.) He was sentenced to 130 years to life in state prison as follows: (1) 25 years to life as to count 6, plus 25 years to life for the discharge of a firearm enhancement; (2) life with a minimum of 15 years as to count 5, plus 25 years to life for the personal discharge of a firearm enhancement; (3) life with a minimum of 15 years as to count 10, plus 25 years to life for the gang-based discharge of a firearm enhancement; and (4) a stayed 25-year-to-life term as to count 1.
All further statutory references are to the Penal Code unless otherwise indicated.
As summarized in Fifita, supra, B294952, at page 3, Ventura-Leon, Lauaki, and Fifita were convicted of multiple charges. Fifita, Lauaki, and Ventura-Leon appealed their judgments of conviction. Other than striking a gang enhancement left unimposed against Fifita in connection with one of his sentences, we affirmed the judgments. (Id. at p. 4.) Tonga and Fonoifua were also convicted of various charges, and they separately appealed their judgments. Other than modifying Tonga's parole eligibility date, we affirmed these judgments as well. (People v. Tonga (Sept. 10, 2021), B301310 [nonpub. opn.].)
Defendant timely appealed, arguing that the judgment must be reversed as a result of prosecutorial misconduct. He further points out certain sentencing errors that must be corrected. We agree that the sentencing minute order must be amended to correct a clerical error as to count 1 and that the judgment must be modified to reflect that defendant is subject to a seven-year minimum parole eligibility date pursuant to section 3046, subdivision (a)(1). In all other respects, the judgment is affirmed.
FACTUAL BACKGROUND
I. Prosecution's Evidence
A lengthy and detailed summary of the People's case is set forth in Fifita, supra, B294952, at pages 4 through 27.
II. Defense Evidence
Defendant did not offer any evidence in defense.
DISCUSSION
I. No Prosecutorial Misconduct
Defendant contends that the prosecutor committed Griffin error during closing argument by commenting on his failure to testify.
Griffin v. California (1965) 380 U.S. 609 (Griffin).
A. Relevant proceedings
During closing argument, the prosecutor made the following argument regarding defendant's gang membership: "I don't think I need to say any more than to show you the photos of his tattoos to let you know how entrenched he is in TCG. [¶] 'Blood Killer, All In' on his neck. '187 Kleenex,' the derogatory name for Lennox 13. [¶] You heard Detective [Jonathan] Calvert at the very beginning of the trial, the gang expert. He went through these tattoos and he went through on his arm the '187,' murder. That's what it stands for. [¶] And all the people he's going to murder, or can murder, or did murder, however you want to interpret it. When you put that 'K' there, that means killer. Slob Killer. Kleenex killer. All the way down to pigs, cops killer. [¶] Again, he doesn't have to take the stand. You can look at that, and he's telling you what he's about and what he will do."
At this point, defense counsel stated, "Objection." The prosecutor continued with her comments about defendant's tattoos, stating, "It's written right there on his arm for all the world and everybody in the community to see what he's capable of and what he will do and what he might have already done." Counsel interjected and said, "Your Honor, can we-" and the trial court responded, "Overruled." The prosecutor then resumed her comments on defendant's tattoos.
Thereafter, during a break in the prosecutor's argument, defense counsel informed the trial court that he believed that the prosecutor "made a reference to [defendant's] failure to testify on his own behalf." The trial court indicated that it did not recall such an incident and did not recall an objection. Defense counsel responded that he had objected but could not state a ground because the trial court overruled his objection before counsel had the chance to do so. The trial court replied that it had paused about 10 seconds waiting for a reason and counsel "never stated one." Counsel then stated, "Well, I didn't want to make-." The trial court interjected, "Well, but you have to state a reason." Counsel stated, "I would have. I thought that the court was just dismissing me." The trial court stated, "I have overruled a number of objections where there was no ground, and most of them were from you." The parties reexamined the transcript to see what was said.
The trial court then indicated the following: "[T]he prosecutor, in my opinion, simply acknowledged the right your client has not to take the stand and indicated that the tattoo said everything. [¶] Again, the focus was the tattoos, not failure to testify. She acknowledged he has a right to not testify. [¶] And as I say, taken with your failure to object at the time, the court took that for what it's worth; namely, no ground, no objection. [¶] But at any rate, the way it was said I took to be a comment on your silence. [¶] I did offer to give the jury a further limiting instruction, and my recollection is that you didn't want that, correct?" Counsel responded, "Not at this time, Your Honor."
B. Relevant law
The Fifth Amendment to the United States Constitution "forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." (Griffin, supra, 380 U.S. at p. 615.) This rule has been extended to prohibit a prosecutor from commenting, either directly or indirectly, on the defendant's failure to testify. (People v. Medina (1995) 11 Cal.4th 694, 755; People v. Guzman (2000) 80 Cal.App.4th 1282, 1287 [Griffin has been interpreted as prohibiting prosecution from "so much as suggesting to the jury that it may view the defendant's silence as evidence of guilt"]; People v. Vargas (1973) 9 Cal.3d 470, 476 [prosecutor's argument asserting "'there is no denial at all that they were all there'" connotes a personal response from the accused himself].)
"[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom." (People v. Hill (1998) 17 Cal.4th 800, 819.) But, "[d]irecting a jury's attention to a defendant's failure to testify at trial runs the risk of inviting the jury to consider the defendant's silence as evidence of guilt." (People v. Lewis (2001) 25 Cal.4th 610, 670.)
"The applicable federal and state standards regarding prosecutorial misconduct are well established. '"A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.'"' [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves '"'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.'"'" (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
"[W]hen [a] claim [of misconduct] focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Samayoa, supra, 15 Cal.4th at p. 841; see also People v. Sanders (1995) 11 Cal.4th 475, 526.) Accordingly, we evaluate Griffin claims by inquiring whether there is "a reasonable likelihood that any of the [prosecutor's] comments could have been understood, within its context, to refer to defendant's failure to testify." (People v. Clair (1992) 2 Cal.4th 629, 663.) We review prosecutorial remarks referring to the defendant's failure to testify de novo. (See People v. Roybal (1998) 19 Cal.4th 481, 514.)
C. Analysis
Applying these legal principles, we conclude that there was no prosecutorial misconduct. The prosecutor did not simply refer to defendant's failure to take the stand. (People v. Bradford (1997) 15 Cal.4th 1229, 1339.) In fact, the wording itself, "he doesn't have to take the stand," does not assert the fact that defendant did not testify, but rather simply asserts he is not required to testify. This phrase does nothing more than echo CALCRIM No. 355, the instruction given in this case prohibiting the jury from drawing adverse inferences from defendant's failure to testify.
We reject the People's contention that defendant forfeited this objection by not raising it below. It follows that defendant's ineffective assistance of counsel argument lacks merit.
Furthermore, when considered in context, there is no reasonable likelihood that the jury would have interpreted the prosecutor's statement as referring to defendant's decision not to testify or that his failure to do so suggests his guilt. Rather, it was argument that defendant's tattoos, in and of themselves and without any other evidence, spoke loudly as to defendant's gang membership. (See People v. Turner (2004) 34 Cal.4th 406, 419 [the prohibition in Griffin "does not . . . 'extend to comments on the state of the evidence'"]; People v. Frye (1998) 18 Cal.4th 894, 970, overruled in part in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 ["In conducting this inquiry, we 'do not lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements."].)
Nor can this comment by the prosecutor be characterized as a pattern of egregious conduct giving rise to fundamental unfairness or as a reprehensible and deceptive method to sway the jury. The comment was but a single passing reference. Its neutral tone regarding defendant's right to not testify and its primary focus on the subject matter on tattoos did not invite the jury to draw an adverse inference from defendant's silence. As such, no prosecutorial misconduct can be found. (See, e.g., People v. Dykes (2009) 46 Cal.4th 731, 772 ["even if the comment was inappropriate, it constituted a mere passing reference of no real import to the case"].)
Even assuming there was Griffin error, it was harmless beyond a reasonable doubt. (People v. Vargas, supra, 9 Cal.3d at p. 478.) As set forth above, the prosecutor's point was that defendant's tattoos clearly demonstrated his TCG membership, separate and apart from any evidence that may or may not have been presented. Thus, even if the argument could be construed as a reference to defendant's failure to testify, it was a comment on the state of the evidence rather than a suggestion that defendant's silence showed his guilt. (See also People v. Bradford, supra, 15 Cal.4th at p. 1340 ["'indirect, brief and mild references to a defendant's failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error. [Citation.]'"], accord People v. Boyette (2002) 29 Cal.4th 381, 455-456.)
Moreover, as set forth above, the jury was instructed with CALCRIM No. 355, which advises that no inference can be made from the defendant's silence. We presume the jury understood and properly applied this instruction (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 83), and nothing in the appellate record indicates the jury did not do so.
Finally, there was no evidentiary gap to the prosecution's case that needed to be filled by any improper Griffin-related inference as appellant now suggests. The evidence of defendant's guilt was overwhelming. Defendant was one of two TCG gang members who suffered injuries from a shooting attack that led to this retaliatory shooting spree. (Fifita, supra, B294952, at pp. 4- 5, 9-13.) His involvement in this gang-motivated crime spree was amply shown by the evidence. As such, any alleged error was harmless beyond a reasonable doubt. II. Sentencing Errors
A. Clerical Error in Minute Order on Sentencing
Defendant contends that the July 28, 2020, sentencing minute order erroneously reflects a stayed 50-year-to-life sentence on count 1 when the trial court actually imposed a 25-year-to-life sentence. The People agree that he is correct.
We agree with the parties. Because the minute order conflicts with the trial court's oral pronouncement of sentence, it must be corrected to conform to the trial court's oral pronouncement. (People v. Scott (2012) 203 Cal.App.4th 1303, 1324.)
B. Defendant's 15-Year-to-Life Base Term on Count 10 Must be Modified to Seven-Year-to-Life Base Term
On count 10, the jury found true the allegations that (1) the offenses were committed for the benefit of a criminal street gang, and (2) that "a principal personally and intentionally discharged a firearm." It did not find that defendant personally discharged a firearm. The trial court sentenced him to a life term with a minimum of 15 years (§ 186.22) plus 25 years to life for the gun enhancement (§ 12022.53, subds. (d) & (e)(1)).
Defendant contends that because the jury did not find that he discharged a firearm, the gang enhancement on these same counts (§ 186.22, subd. (b)(4)) requiring a minimum parole eligibility of 15 years in prison, cannot take effect if the trial court imposed the 25-year minimum parole eligibility for the firearm enhancement (§ 12022.53). In other words, defendant asserts that he is not subject to both enhancements. The People agree.
We agree with the parties. "Section 12022.53's sentencing scheme distinguishes between four types of offenders. The first group consists of those offenders who personally used or discharged a firearm in committing a gang-related offense that is specified in section 12022.53. These defendants are subject to both to the harsh enhancement provisions of 12022.53 and the gang-related sentence increases of section 186.22. The second group consists of accomplices to a gang-related offense specified in section 12022.53 in which, as here, not the defendant but another principal personally used or discharged a firearm. They are subject to additional punishment under either section 12022.53 or the gang-related sentence increases under section 186.22, but not both." (People v. Brookfield (2009) 47 Cal.4th 583, 593-594.)
In other words, absent a determination that the accused is subject to the enhanced sentencing provisions of section 186.22 or some other provision of law, a sentence for willful, deliberate, and premeditated murder is for a life term with a minimum wait for parole of seven years. (§ 3046, subd. (a)(1).) If a finding pursuant to section 186.22, subdivision (b)(5), is returned, the minimum wait for parole eligibility under a life sentence is increased to 15 years. (People v. Salas (2001) 89 Cal.App.4th 1275, 1280-1281.) But, if a defendant is "never found to have personally used a firearm, the section 186.22, subdivision (b)(5) 15-year minimum parole eligibility term is inapplicable." (People v. Salas, supra, at p. 1281.)
Here, the jury did not find that defendant personally discharged a firearm. Thus, we direct the trial court to modify the 15-year-to-life minimum parole eligibility to reflect the default minimum parole eligibility of seven years designated for life terms under section 3046, subdivision (a)(1). (People v. Salas, supra, 89 Cal.App.4th at p. 1283.)
DISPOSITION
The matter is remanded to the trial court with directions to correct the clerical error in the sentencing minute order so that it conforms to the trial court's oral pronouncement of sentence. Further, that portion of the judgment that imposes a 15-year minimum parole eligibility date pursuant to section 186.22, subdivision (b)(5), is reversed. The judgment is to be modified to reflect that defendant is subject to a seven-year minimum parole eligibility date pursuant to section 3046, subdivision (a)(1). In all other respects, the judgment is affirmed.
We concur: LUI P. J., HOFFSTADT J.