Opinion
B160388.
11-24-2003
THE PEOPLE, Plaintiff and Respondent, v. JOE PATRICK GAINES et. al, Defendants and Appellants.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant Joe Patrick Gaines. Michael L. Plaut, under appointment by the Court of Appeal, for Defendant and Appellant Ollie Hawkins. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and John Yang, Deputy Attorney General, for Plaintiff and Respondent.
Defendants and appellants, Joe Patrick Gaines and Ollie Hawkins, appeal from the judgments entered following their convictions, by jury trial, for special circumstances murder, burglary (Gaines only), robbery, and attempted robbery, with arming and firearm use findings (Pen. Code, §§ 187/190.2, 459, 211, 664/211, 12022, 12022.5, 12022.53). Sentenced to state prison terms of life without the possibility of parole, plus 25 years to life (Gaines), and 35 years to life (Hawkins), they contend there was trial and sentencing error.
All further statutory references are to the Penal Code unless otherwise specified.
The judgments are affirmed as modified.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.
1. Prosecution evidence.
Defendant Hawkins, who was 16 at the time of the incident, testified he lived down the street from defendant Gaines. They had known each other for nine years and had gone to junior high school together. According to Hawkins, Gaines belonged to the Neighborhood 127th Street Crips gang. Hawkins did not belong to a gang.
Hawkins was not a prosecution witness. He testified in his own defense, but he gave the only eyewitness account about how the murder happened.
On July 21, 2001, Gaines came over to Hawkinss house, told him to get dressed and said they were going to visit a girl named Nicole. They walked Gainess house and went into his bedroom. Gaines took a gun from beneath his bed and told Hawkins to carry it, explaining that Hawkins "would mostly likely go home" if he were caught with the gun, whereas Gaines "would do some serious time"
They then walked the three blocks to Nicoles house. Approaching it, they passed a couple of young girls sitting in a brown van. They went up to Nicoles front door and Gaines knocked. Kathryn Dawson, a woman Hawkins did not know, opened the door. Gaines asked about Nicole, who was Dawsons granddaughter. Gaines and Dawson talked a little, and then Dawson invited them in. They all sat in the living room. Hawkins still had the gun. After a short time, Dawson went into the kitchen. Gaines gave Hawkins a signal, holding his hand up and moving his index finger as though he were pulling the trigger of a gun. Hawkins understood the signal to mean he should either rob or shoot Dawson. After Gaines made the motion a second time, Hawkins told him, "No." When Gaines started to reach for the gun, Hawkins handed it to him.
Gaines went into the kitchen, pointed the gun at Dawson and said, "Give me the money." Dawson screamed. Hawkins stood up. Dawson got her purse and dumped the contents onto the floor. Gaines handed the gun back to Hawkins and began picking up money from the floor. Gaines ordered Dawson to a back bedroom and Hawkins followed them down the hall, the gun still in his hand. When Dawson reached the back bedroom, she tried to lock the door, but Gaines got the door open and punched Dawson in the head. Gaines grabbed a pillow and started to smother Dawson. He told Hawkins to shoot her. When Hawkins refused, Gaines ordered him to hand over the gun. Hawkins testified he gave the gun to Gaines, who shot Dawson in the head through the pillow.
Gaines found a plastic shopping bag to put the bloody pillow in. He ordered Hawkins to check Dawsons wallet. Hawkins testified he only pretended to go through the victims wallet, although he admitted taking two or three quarters. Gaines made a call on his cell phone and told someone, "Come get me." Gaines gave the gun back to Hawkins and they left Dawsons house, with Gaines carrying the bloody pillow inside the plastic shopping bag. When they walked past the brown van, one of the girls said something to Gaines.
Fifteen minutes later, Leo came to pick them up. According to Hawkins, Leo belonged to the same gang as Gaines. Hawkins testified that after they got into Leos car, Gaines said, "I popped that bitch." When Leo said, "What?", Gaines "said it again, `I popped that bitch. [¶] And then [Leo] said, `Shoot her? [¶] [Gaines] said, `Yeah. [¶] And [Leo] said, `She dead? [¶] [Gaines] said, `Yeah. " Leo told defendants to lie down while he drove to Gainess house. When they arrived, Gaines asked for the gun. Hawkins gave it to him and Gaines put it under his bed. Hawkins went home to shower and eat, but he returned to Gainess house an hour or so later. A few days later, Hawkins saw Gaines dig a hole in his backyard and bury the gun. Hawkins later showed a relative of Gaines where the gun was buried.
Leo testified Gaines called him that day around 12:30 p.m. asking for a ride. Leo drove to the designated spot and saw the defendants on the street. Gaines was carrying a shopping bag. After they got in the car, Gaines said, " `I punked the bitch or `I slapped the bitch or `popped the bitch. " When they got to Gainess house, Leo, Hawkins and Gaines went inside. Gaines put a gun under his mattress. A few days later, Leo watched Gaines dig a hole in his backyard and bury the gun.
M. was Dawsons neighbor. On the day Dawson was killed, M. saw Gaines and Hawkins walking toward Dawsons house. She had never seen them before. She saw them at Dawsons door and she heard Dawson say, " `I never let nobody in my house. "Then the defendants went inside. Ten minutes later, M. saw the defendants walking down the street, back the way they had come. One of them was now carrying a plastic bag. M. identified both defendants at trial.
K., another neighbor of Dawsons, testified she was driving her van down the street when she saw Dawson standing at her door talking with two young men whom she identified as Gaines and Hawkins. K. parked outside her house and went in to take a quick shower. Her daughters stayed in the van. Ten or fifteen minutes later, K. came out of her house and saw Dawsons daughter, Stephanie, running down the street yelling for help. K. ran over and found Dawson lying on the floor, still breathing. K. had seen Gaines once before, at Dawsons July 4th party. K. also knew that Dawsons son had dated Gainess mother. K. had never seen Hawkins before.
One of K.s daughters testified she was sitting in the van when she saw two boys at Dawsons door. She had seen Gaines, the cuter of the two, outside Dawsons house on July 4th, a little more than two weeks earlier. The other boy was Hawkins, whom she had seen at football practice. When the defendants walked away from Dawsons house, Gaines was carrying a bag. K.s other daughter testified she saw the defendants walk up to Dawsons house. She had seen Gaines at Dawsons July 4th party. Ten or fifteen minutes later the defendants walked past the van again. One of them was now carrying a plastic shopping bag. She tried to get Gainess phone number because she thought he was cute, but the defendants just kept walking. Dawsons daughter Stephanie drove up just as the defendants were turning the corner.
C. was 13 years old at the time of trial. He testified the day Dawson was killed he was sitting in the van with two girls. The defendants walked by the van on their way to Dawsons house. C. saw the defendants at Dawsons door and he heard her say, "Usually I dont let people in my house. But since I know you all, Ill let you in." When the defendants left Dawsons house, they walked past the van again. The girls spoke to them, but the defendants did not reply. One of the defendants, C. wasnt sure which one, was carrying a bag. Stephanie arrived just as the defendants turned the corner. She parked in the driveway behind Dawsons new Mercedes. Stephanie went up to the house and then came back yelling, "Oh, come help me. My mother is dead. Shes dead." C. testified he had seen both defendants before that day. He had seen them at the park on different occasions, and he had seen Gaines at Dawsons July 4th party talking to Nicole.
Dawsons daughter, Stephanie, testified she had spoken to her mother that morning and made plans to go shopping. When Stephanie arrived about 1:00 p.m., the door of her mothers house was open. She went in and found her mother on the floor in the back bedroom. Stephanie knew Dawson had bought a new Mercedes shortly before the murder. After the murder, she learned Dawson had been keeping a lot of money in her house. She testified Gaines and his family had been at Dawsons July 4th party that year, and at one point Gaines had gone into the house to get something to eat. Stephanies brother had once dated Gainess mother. Nicole, who was Stephanies niece, had been living with Dawson up until two months before the murder.
Los Angeles County Sheriffs Detective Christine Carnes arrested the defendants and Leo five days after the murder. Hawkins admitted he had been inside Dawsons house, but he claimed Gaines had committed the robbery and the murder. Carnes had no evidence Leo had been at the crime scene. Gainess relative gave Carnes the murder weapon. Carnes confirmed one of a pair of pillows was missing from Dawsons house.
The autopsy showed Dawson had died from a single gunshot wound to the right temple. The bullet was still in her head, and analysis showed it had been fired from the gun Gaines buried in his backyard.
2. Defense evidence.
Hawkins testified that when he left Gainess house that morning carrying the gun, he had no intention of committing a crime at Dawsons house. Nor did he know Gaines was planning to commit a crime. Dawsons house was not in 127th Street Crips territory, and Hawkins believed he was carrying the gun in case Gaines needed it for protection against a rival gang attack. Hawkins testified he had wanted to run away when Gaines first pulled the gun on Dawson, but he had been afraid Gaines would kill him if he left. In the past, Gaines had said "that if anybody ratted on him he would [either] kill them" or "get somebody to do it." When Gaines gave him the gun back after Dawson dumped her purse onto the floor, Hawkins pointed the gun at the floor, not at Dawson. When he followed Gaines and Dawson to the back of the house, Hawkins still had the gun and Gainess back was turned to him, but Hawkins did not flee or try to stop Gaines because he was afraid of him. Hawkins testified he never intended to help Gaines commit any crimes at Dawsons house.
Willie Donerson, head football coach at Dominguez High School, testified Hawkins had been on the football team for two years. Hawkins was very passive and had never been in a fight during a game or practice. Donerson had urged him to play more aggressively. He had also recommended Hawkins for scouting by four-year colleges. Donerson had never heard about Hawkins stealing anything, and his own experience with Hawkins was that he was very honest.
Belinda Andry, a close friend of Gaines, testified she saw him the day of the murder, at about 11:50 a.m., walking near her home on 127th Place. This was about two miles from Dawsons house. Hawkins was with Gaines. Andry spoke to Gaines for five or ten minutes before the defendants walked off.
3. Proceedings.
Hawkins and Gaines were tried together, but before separate juries. As to Hawkins, the trial court exercised its discretion under section 190.5, subdivision (b), to reduce what would otherwise have been a sentence of life without possibility of parole to a sentence of 25 years to life because Hawkins was under 18 when the crimes occurred.
CONTENTIONS
1. There was insufficient evidence to convict Hawkins of having aided and abetted Gainess crimes.
2. There was insufficient evidence to support the attempted robbery conviction.
3. The trial court erred by admitting gang evidence.
4. Gainess attorney was ineffective for failing to object to prosecutorial misconduct.
5. Hawkinss attorney was ineffective for not investigating the case adequately and for not presenting exculpatory evidence.
6. The trial court erred by not instructing Gainess jury that accomplice testimony should be viewed with caution.
7. The trial court erred by imposing a parole revocation fine on Gaines.
8. The trial court erred by denying Gaines presentence custody credits.
DISCUSSION
1. There was sufficient evidence to convict Hawkins.
Hawkins contends there was insufficient evidence to prove he was guilty of robbery and murder. This claim is meritless.
Hawkins argues that, because he was found not guilty of burglary, the jury necessarily concluded he did not form the intent to aid and abet Gainess crimes until after they had entered Dawsons house. Not so. Penal Code section 954 states, in part, "[a]n acquittal of one or more counts shall not be deemed an acquittal of any other count." "It is . . . settled that an inherently inconsistent verdict is allowed to stand; if an acquittal of one count is factually irreconcilable with a conviction on another, . . . effect is given to both." (People v. Santamaria (1994) 8 Cal.4th 903, 911; see, e.g., People v. Lewis (2001) 25 Cal.4th 610, 656 ["even if we assume for arguments sake that the jury verdicts were inconsistent, that conclusion does not, of itself, warrant reversal" where "there is sufficient evidence to support the convictions and findings"]; People v. Wilson (1996) 43 Cal.App.4th 839, 849 [jurys apparent inconsistency in convicting on first degree murder but not on underlying robbery does not benefit defendant].)
Hawkins argues that, in any event, there was insufficient evidence he ever intended to aid and abet Gainess crimes. He relies on his own testimony that he had nothing to do with Gainess plan to rob Dawson, with demanding money from her once they got inside the house, or with physically assaulting her in any way. He points out that a defendants mere failure to prevent a crime, or his mere presence at a crime scene, does not constitute aiding and abetting. But the jury was instructed on these rules and reasonably concluded they did not apply to him.
Although on direct examination Hawkins tried to present himself as a completely passive bystander to Gainess crimes, on cross-examination he either admitted the truth of contradictory facts, or his testimony was so inconsistent the jury reasonably questioned his credibility. Hawkins admitted he assumed the gun Gaines had given him was loaded. He admitted knowing, when he gave Gaines the gun the first time, that Gaines was planning to go into the kitchen and rob Dawson. He admitted knowing that, when Gaines ordered Dawson to the back bedroom, Gaines was going to rob her or shoot her; despite this knowledge, Hawkins followed them to the back bedroom even though he again had the gun in his possession. Finally, Hawkins admitted that, after Gaines put the pillow over Dawsons head and tried to smother her, he helped Gaines by walking over and handing him the gun while Gaines was struggling with Dawson.
"Q. What did you think you were giving him the gun for? [¶] A. To go rob [Dawson]. [¶] Q. So you knew what he was going to do? [¶] A. At that point, yeah." "You knew when you gave him the gun he was going to do something with the gun, didnt you, Mr. Hawkins? [¶] A. Yes. [¶] Q. You knew it was going to be easier to rob this woman, didnt you, Mr. Hawkins? [¶] . . . [¶] A. Yes."
"Q. What was he trying to do with [the pillow]? [¶] A. Possibly smother her. [¶] Q. . . . [¶] And what were you doing at that time? [¶] A. I was watching." "Q. And then what happens? [¶] A. Then he says, `Give it here. [¶] Q. And what do you do? [¶] A. I give him the gun. [& para;] Q. Do you walk over and give it to him? [¶] A. I reached over — yeah, I walked and reached over the bed, yes. [¶] Q. You walked and reached over the bed to give it to him? [¶] A. Yes." "Q. You had to hand him the gun because he was so busy dealing with Ms. Dawson he couldnt grab the gun from you? You had to go over and give the gun to him, didnt you, sir? [¶] A. Yes. [¶] Q. She was struggling at this time, right? [¶] A. Yes. [¶] Q. And you didnt help her, did you? [¶] A. No."
Hawkins argues the evidence established he had acted under duress, which is an affirmative defense. But the jury was given a duress instruction and reasonably rejected this defense. The instruction properly required the threat or menace to be one that "would cause a reasonable person to fear that his life would be in immediate danger if he did not engage in the conduct charged[.]" (Italics added.) (See People v. Bacigalupo (1991) 1 Cal.4th 103, 125 ["Central to a defense of duress is the immediacy of the threat or menace on which the defense is premised. [Citations.] `[A] phantasmagoria of future harm, such as a death threat to be carried out at some undefined time, will not diminish criminal culpability."]; People v. Manson (1976) 61 Cal.App.3d 102, 206 ["Compulsion as a legal defense requires evidence that the accused acted upon reasonable cause and belief that her life was presently and immediately endangered if she refused to participate. [Citations.] Here there is no evidence that Mansons instructions were accompanied by any threat. Simply following orders is not a defense under the facts of this case."].) Hawkins testified he was afraid Gaines would kill him later, not while they were in the house.
The duress instruction was more favorable to Hawkins than it had to be. In People v. Anderson (2002) 28 Cal.4th 767, a case decided after the trial in this matter, our Supreme Court held that duress is not a defense to any form of murder. However, even under Anderson, Hawkins would have been entitled to a partial duress instruction because one of the prosecution theories was felony murder: "[D]uress can, in effect, provide a defense to murder on a felony-murder theory by negating the underlying felony. [Citations.] If one is not guilty of the underlying felony due to duress, one cannot be guilty of felony murder based on that felony." (Id. at p. 784.)
During closing argument, defense counsel misstated the evidence by asserting Hawkins "thought Gaines could conceivably take the gun and turn it on him and kill him." Hawkinss actual testimony was: "Q. Why didnt you leave at that time, turn around and leave, out the front door as shes going to the kitchen? [¶] A. I was afraid if I did he would assume he would have to kill me. [¶] Q. He would kill you, then, on the spot. [¶] Is that your — [¶] A. Yes — no, not on the spot. Later."
We conclude there was sufficient evidence to sustain Hawkinss convictions.
For the same reasons, we also reject Hawkinss contention the trial court erred by denying a new trial motion based on his claim the robbery and murder convictions were contrary to the law and the evidence.
2. There was insufficient evidence of attempted robbery.
Gaines contends he was improperly convicted of attempted robbery, either because there was insufficient evidence to sustain the conviction, or because he could not be convicted of both robbery and attempted robbery arising out of a single incident in which several items were stolen. This claim has merit.
The People argue the attempted robbery conviction was properly based on the evidence Gaines intended to steal Dawsons car. They argue it was common knowledge in the neighborhood that Dawson had a new Mercedes, and in "the absence of any other reason why [] Gaines . . . chose Dawson to rob, the trier of fact [could] reasonably infer that it was the new Mercedes which led Gaines to believe robbing Dawson would be worthwhile." (Italics added.)
But Hawkins did not say anything indicating Gaines wanted to steal Dawsons car. Hawkins testified Gaines spoke of wanting to visit Nicole, and in his police statement Hawkins said Gaines thought Dawson had money. There was no evidence Gaines asked Hawkins to look for the car keys, or that he expressed disappointment about not finding them. Indeed, Hawkins told police Gaines seemed disappointed because Dawson did not have more money. Moreover, the Peoples theory ignores the fact there was evidence Dawson had three safes in her house in which she kept at least $7,000.
This exchange is from Hawkinss police interrogation: "Q. Okay. Thats what Im asking you. From that day or any day after the murder was there anything said as to why he [i.e., Gaines] did this? [¶] A. Cause he thought she had money."
In sum, the Peoples theory rests on the following chain of reasoning: Dawson had a new Mercedes; since Gaines planned to rob Dawson, he must have been planning to steal her car; because he wanted to steal her car, he must have tried to find her car keys once he gained entry to her house; when he failed to find the car keys, he had been forced to call Leo for a ride. But the only links in this chain supported by the evidence are that Dawson had a new Mercedes, Gaines planned to rob her, and Gaines called Leo for a ride. The remaining links are speculative. And as for Gaines calling Leo from Dawsons house to ask for a ride, the People fail to acknowledge Leos testimony that this was the second phone call he got from Gaines that day. One could just as easily speculate this second call had been pre-arranged.
In any event, even if there had been sufficient evidence Gaines tried to take Dawsons car, there could not have been a separate conviction for that act because of the general rule that robbing a victim of several items at the same time only constitutes a single crime. (See People v. Bauer (1969) 1 Cal.3d 368, 376-377 ["the taking of several items during the course of a robbery may not be used to furnish the basis for separate sentences," and "the fact that one of the crimes may have been an afterthought does not permit multiple punishment where there is an indivisible transaction."].)
The People argue this rule does not apply because "the attempted robbery occurred in the living room, which ended with one of [the] appellants dumping the contents out of Dawsons purse to look for keys. Thereafter, an interruption occurred when the activity was moved to another location, the back bedroom, where Dawson was beaten. Thereafter, another robbery was commenced which resulted in the shooting death of Dawson and the taking of several quarters from Dawsons wallet." (Italics added.)
But it was during the living room episode that Gaines took the $20 and, under the theory the prosecutor argued to the juries, taking the $20 was part of the robbery. If Gaines was looking for Dawsons cars keys at the same time he was taking her $20, these virtually simultaneous acts cannot be divided into two crimes.
The prosecutor told both juries: "What is robbery? The judge gave you five elements of robbery. A taking, was there a taking in this case? What was taken? $20, three quarters and the very pillow that Kathryn Dawson used to sleep on. It doesnt matter the value. It can be slight. The issue is was there a taking."
For these reasons, the attempted robbery convictions and the attempted robbery special circumstance findings against both defendants cannot stand, and we will order them vacated. However, because there were other special circumstance findings made against each defendant, and because the trial court stayed the sentences for the attempted robbery convictions, our holding does not require a remand for resentencing.
3. Admission of gang evidence was proper.
Gaines contends Hawkins should not have been allowed to testify he was afraid because Gaines was a gang member. This claim is meritless.
Gaines objected to letting Hawkins testify about Gainess gang membership on the ground there was no evidence Dawsons murder was gang-related, and because gang evidence would be extremely inflammatory. The trial court ruled the evidence was admissible. Gaines contends this was error because "[t]he evidence had no relevance to Gaines. Neither the prosecutor nor codefendant Hawkins alleged that the crime was gang motivated. The fundamental issue for Gaines was identity." Gaines argues, "Hawkins wanted to introduce the evidence in order to minimize his culpability. He wanted to show that he did not object to or attempt to thwart Gainess actions in the house because he feared retaliation from Gainess gang. There were, however, separate juries for Gaines and Hawkins. Hawkins could easily have presented the gang evidence before his own jury without prejudicing Gaines . . . ."
The People argue Gaines waived this issue on appeal by not specifically objecting below that the gang evidence was more prejudicial than probative under Evidence Code section 352. We disagree. Defense counsel for Gaines told the trial court, "Well, let me say this, Your Honor, and put it on the record. There has been no allegation of any kind of gang activity. As soon as the jury hears the word `gang, that is all over. I think it is impermissible." This was an implicit [Evidence Code] section 352 objection.
The admission of gang evidence always carries a risk of prejudice. "When offered by the prosecution, we have condemned the introduction of evidence of gang membership if only tangentially relevant, given its highly inflammatory impact." (People v. Cox (1991) 53 Cal.3d 618, 660.) Here, the gang evidence was not merely tangentially relevant. The only eyewitness account of what had happened inside Dawsons house came from Hawkinss testimony. Although there was other evidence showing Gaines was one of the two young men who went into Dawsons house, Hawkinss testimony was the only direct evidence showing it was Gaines who had initiated the robbery and then shot Dawson. The only other evidence Gaines had been the chief perpetrator was circumstantial, e.g., Gaines telling Leo he had shot someone, or Gaines burying the gun in his backyard. Hawkinss testimony was extremely relevant for Gainess jury because it inculpated Gaines as the principal perpetrator. In general, the prosecution cannot be prevented from presenting all relevant evidence proving a defendants culpability. (See, e.g., People v. Wash (1994) 6 Cal.4th 215, 246 [crime scene photographs and autopsy slides were "not unduly cumulative of the testimony of the crime scene expert and pathologist" because People were "not obliged to prove these details solely from the testimony of live witnesses, and the jury was entitled to see how the physical details of the scene and body supported the prosecution theory"]; People v. Edelbacher (1989) 47 Cal.3d 983, 1007 ["general rule is that the prosecution in a criminal case cannot be compelled to accept a stipulation if the effect would be to deprive the states case of its persuasiveness and forcefulness"].) And because Hawkins testified the reason he failed to either flee from the house or stop Gaines from killing Dawson was because of Gainess gang membership, that gang evidence was more than tangentially relevant.
But even assuming, arguendo, there was error, it would have been harmless. This is because Gainess defense was not that he had been the less culpable perpetrator. Rather, Gainess defense was that he was not the person who had gone into Dawsons house with Hawkins. And, on this point, the evidence against Gaines was overwhelming. In addition to Hawkinss testimony that Gaines took him to Dawsons house, Hawkins testified Gaines called someone to pick them up, evidence which was corroborated by Leos testimony that, at Gainess request, he gave them a ride. In addition, five other witnesses who had no connection whatsoever to the crimes testified they saw Gaines either going to or coming from Dawsons house in Hawkinss company, and four of these five witnesses testified they had seen Gaines prior to the day Dawson was killed.
4. Counsel was not ineffective regarding C.s identification.
Gaines contends his trial counsel was ineffective for not objecting to an instance of prosecutorial misconduct. This claim is meritless.
A claim of ineffective assistance of counsel has two components: "`First, the defendant must show that counsels performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsels errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. [Citation.] [¶] To establish ineffectiveness, a `defendant must show that counsels representation fell below an objective standard of reasonableness. [Citation.] To establish prejudice he `must show that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]" (Williams v. Taylor (2000) 529 U.S. 362, 390-391.) "Defense counsel is not required to advance unmeritorious arguments on the defendants behalf." (People v. McPeters (1992) 2 Cal.4th 1148, 1173.)
There was evidence at trial that A.O. showed C. a picture of Gaines taken at Dawsons July 4th party, and that C. identified the picture as being one of the young men he had seen in front of Dawsons house the day she was killed. While arguing the strength of the identification evidence implicating Gaines, the prosecutor told the jury: "But theres more. [C.] was shown not just one photograph by [A.O.], . . . he was shown many digital photographs. Do you recall that testimony? You [sic] werent just shown one man. There were many distinctions. He just picked one man out." Gaines argues this statement "flatly contradicts the testimony of the only two percipient witnesses," that it constituted prosecutorial misconduct, and that defense counsel was incompetent for not objecting to it.
But the record demonstrates the prosecutors statement was not flatly contradicted by the testimony of A.O. and C. Gaines relies on the following portions of the transcript which appear to demonstrate C. was shown only a single photograph. "Q. How many pictures did [A.O.] show you[?] . . . [¶] A. Just one. Q. Could it have been more than one? A. Huh-uh." A.O. was asked: "Q. You showed one picture of [Gaines]? [¶] A. Yes [¶] Q. And no other picture of males? [¶] A. No." Based on this testimony, Gaines argues that "far from selecting Gaines out of a multitude of possible suspects, [C.] selected the single male out of the single photo that [A.O.] showed him. The prosecutor therefore committed misconduct in arguing otherwise."
Although the response "huh-uh" is ambiguous on its face, it appears from an examination of C.s testimony that this was meant as a "no."
But A.O.s testimony was far more ambiguous than the little snippet cited by Gaines indicates. First, A.O. explained he had not shown C. an actual photograph; he had been using a digital camera and what he showed C. were the disc-stored pictures displayed on the camera itself. Second, as the following portions of his testimony indicate, A.O. was far from clear as to exactly how the identification was made:
"Q. When you showed [C.] the photographs, did he recognize anyone?
"A. Yes.
"Q. Now let me show you Peoples 8. [¶] Do you see Peoples 8?
"A. Yes.
"Q. Although this is a photograph, do you also recognize it as being part of the digital photograph that was on your camera?
"A. Yes.
"Q. Is this one of the photographs you showed to [C.]?
"A. Yes.
"Q. When you showed this photograph to [C.], did he recognize someone?
"A. Yeah. I was real excited about showing it. And he said, `Thats him. "
"Q. Did I understand you that you only showed one picture to [C.]?
"A. I actually had other pictures in it. But I went right to the picture. That is the best one I had.
"Q. Sorry. You showed him one male person; is that right?
"A. I showed [C.] the picture with [Gaines] . . . , yes.
. . . . . . . . . . . . . . . . . . . .
"Q. You showed one picture of [Gaines]?
"A. Yes.
"Q. And no other picture of males?
"A. No.
"Q. Is that right?
"A. Thats right."
"Q. Were there any other males at the party?
"A. There were . . . other males there with him. I dont remember because you got the pictures. But there were . . . some other pictures that I took with some other males there.
"Q. Did you show him those other pictures, as well?
"A. I think I did. But this one right here was the clearest one that I showed [Gaines].
"Q. When you showed him the pictures with the other males, did he recognize any of the other people in the pictures?
"A. I dont think. But he — I just remember — he remembered the picture with [Gaines], and he got a little excited." (Italics added.)
Gainess reply brief backs away from his initial assertion, that A.O. showed C. only one picture, to make the substantially lesser assertion that C. "selected the sole male out of the first photo" he was shown, "whether or not he browsed through other photos later." However, the record does not necessarily support this interpretation because A.O. was unclear as to exactly how C. made the identification. But in any event, there was no misconduct because all the prosecutor told the jury was that A.O. showed C. not just one, but many digital photographs, that C. was not "just shown one man. There were many distinctions. He just picked one man out." This is not a clear instance of prosecutorial misconduct and, therefore, defense counsel was not ineffective for failing to object. (See People v. Sims (1993) 5 Cal.4th 405, 463 ["We repeatedly have stated that `[t]he prosecution has broad discretion to state its views as to what the evidence shows and what inferences may be drawn therefrom. "].)
5. Hawkins was not denied effective assistance of counsel.
Hawkins contends trial counsel was ineffective for failing to adequately investigate the case and produce more evidence to support his duress defense. This contention is without merit.
Hawkins complains defense counsel failed to do the following: try to hire a private investigator; try to find witnesses to testify Gaines was feared in the community and had a propensity for threatening people; interview Gainess probation officer regarding his gang membership and violent nature; put on a gang expert to testify about the violent and intimidating nature of gang members; look for witnesses who had been threatened by Gaines; present corroborating evidence for Hawkinss testimony that Gaines belonged to the Crips; hire a psychiatrist to examine Hawkins to see if he "suffered from a dissociative disorder" or "was particularly susceptible to intimidation, threats, and menace."
Although with further fleshing out these claims might be legitimately raised in a habeas corpus petition, they are meritless here because they are conclusory and speculative. The record on appeal does not establish any of the predicate facts necessary to sustain a finding that defense counsel did not adequately investigate Hawkinss case. "Although trial counsel clearly has a duty to adequately investigate possible defenses to enable formulation of an informed trial strategy [citations], we will not presume from a silent record that counsel failed in this duty." (People v. Jennings (1991) 53 Cal.3d 334, 375.) Moreover, Hawkins cannot demonstrate prejudice because he only speculates about what sort of evidence might have been discovered. For instance, he fails to show what witnesses were available to give the corroborating evidence he asserts defense counsel was incompetent for not producing. Hawkinss ineffective assistance of counsel claim fails.
For the same reason, we also reject Hawkinss contention the trial court erred by denying his new trial motion on the ground of ineffective assistance of counsel.
6. Failure to give accomplice instruction was harmless error.
Gaines contends the trial court erred by failing to instruct the jury, sua sponte, with CALJIC 3.18 (accomplice testimony to be viewed with caution). Although the trial court erred, the error was harmless.
"We have [held] that `whenever an accomplice, or a witness who might be determined by the jury to be an accomplice, testifies, the court should sua sponte instruct the jury as follows: `"To the extent an accomplice gives testimony that tends to incriminate the defendant, it should be viewed with caution. This does not mean, however, that you may arbitrarily disregard that testimony. You should give that testimony the weight you think it deserves after examining it with care and caution and in the light of all the evidence in the case." Such a pretailored instruction is applicable regardless which party called the accomplice. [Citation.]" (People v. Box (2000) 23 Cal.4th 1153, 1208-1209.) "Ordinarily, the instructions on accomplice testimony need be given on the courts own motion only when the accomplice witness is called by the People [citations] or when a defendant in testifying implicates his codefendant while confessing his own guilt [citation]. In the latter instance, the confession on the stand, for all practical purposes, relieves the jury of the decision whether the declarant was an accomplice. When a defendant has confessed his guilt, there is little need to worry about prejudicing him by giving an accomplice testimony instruction for the protection of his codefendant." (People v. Terry (1970) 2 Cal.3d 362, 399.)
However, a trial courts failure to give CALJIC No. 3.18 can be harmless if the general instructions on witness credibility provide a sufficient surrogate. (See People v. Lewis (2001) 26 Cal.4th 334, 371 ["To the extent defendant argues the jury should have been instructed to view [the accomplices] testimony with distrust (CALJIC No. 3.18), we find the other instructions given — including `[a] witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others (CALJIC No. 2.21.2), along with instructions on a witnesss credibility (CALJIC No. 2.20) and the character of a witness for honesty or truthfulness or their opposites (CALJIC No. 2.24) — were sufficient to inform the jury to view [the accomplices] testimony with care and caution, in line with CALJIC No. 3.18."].) The error was harmless here because the jury was given general instructions for evaluating witness credibility.
7. Parole revocation fine properly imposed on Gaines.
Gaines contends, and the People concur, that the trial court erred by imposing a parole revocation fine on Gaines because he was given a sentence of life without possibility of parole. But the parties are incorrect because Gaines was also sentenced to a term of 25 years to life.
Section 1202.45 provides: "In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional restitution fine shall be suspended unless the persons parole is revoked."
Relying on People v. Oganesyan (1999) 70 Cal.App.4th 1178, Gaines argues it was improper to impose a parole revocation fine because, due to the fact one of his sentences was for life without the possibility of parole, he was ineligible for parole. Oganesyan held that where one of the terms imposed on a defendant was for life without possibility of parole, the trial court did not err by declining to impose a parole revocation fine "because the sentence does not presently allow for parole and there is no evidence it ever will." (Id. at p. 1185.) Oganesyan reasoned the legislative purpose of restitution fines is to recoup "from prisoners and potentially from parolees who violate the conditions of their parole some of the costs of providing restitution to crime victims," but given there is only the slimmest chance anything would be recouped from a defendant sentenced to a term that prohibited parole, "there is no evidence the Legislature intended that its cost recoupment purposes were to apply under such an extremely limited set of circumstances." (People v. Oganesyan, supra, 70 Cal.App.4th at p. 1185.)
However, under a plain reading of section 1202.45, this is a case in which the defendants sentence "includes a period of parole" as to the non-life without possibility of parole portion of Gainess sentence. Although he may never serve a period of parole, it is possible he might. "It bears emphasizing that by the terms of the statute the parole revocation restitution fine comes due only if the defendants parole is eventually revoked. Until then, the fine is suspended. Thus, the statute contemplates that the conditions for the restitution fine may never materialize." (People v. Tye (2000) 83 Cal.App.4th 1398, 1401-1402 [holding trial court properly imposed parole revocation fine after suspending execution of defendants sentence and ordering probation].) Thus, the trial court did not err by imposing a parole revocation fine.
8. Trial court erred by denying Gaines credit for presentence custody.
The parties properly agree the trial court erred by denying Gaines presentence custody credit for actual time served prior to sentencing. Although the recently amended statutory scheme disallows conduct credit for defendants convicted of murder, it does not disallow credit for actual time served. (See People v. Cooper (2002) 27 Cal.4th 38, 40-41, fn. 2 ["In June 1998, . . . the voters approved the legislative amendment to section 190 and the legislative enactment of section 2933.2 by the passage of Proposition 222. [Citations.] Regarding defendants convicted of murder, section 2933.2 expressly prohibits the award of postsentence prison worktime credits and presentence conduct credits, while section 190, as amended, expressly prohibits the award of postsentence prison worktime credits."].)
Gaines contends he is entitled to 348 days of actual time served prior to sentencing. The People do not contest this calculation, and therefore we will order the trial court to amend the abstract of judgment to reflect these credits.
DISPOSITION
Defendants convictions for attempted robbery, and the special circumstance findings of murder during the commission of an attempted robbery, are vacated. Gaines is to be awarded 348 days of presentence custody credit. As modified, the judgments are affirmed. The trial court will forward a corrected abstract of judgment to the Department of Corrections.
We concur: KITCHING, J. and ALDRICH, J.