Opinion
F079711
06-14-2021
THE PEOPLE, Plaintiff and Respondent, v. CHARLES DEVON GARRETT, Defendant and Appellant.
Athena Shudde, under appointment by the Court of Appeal, Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Nos. F17901972, F18903146 Jane Cardoza, Judge.
Athena Shudde, under appointment by the Court of Appeal, Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Appointed counsel for appellant Charles Devon Garrett asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Garrett was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. He filed a letter brief raising the following claims: (1) the prosecutor misstated evidence in his opening argument; (2) the trial court erred by instructing the jury on CALCRIM No. 123; (3) trial counsel rendered ineffective assistance of counsel; (4) the trial court erred by denying Garrett's request for new counsel to argue his motion for new trial, and by denying the motion; and (5) the cumulative effect of these errors necessitates reversal of his conviction.
Finding no arguable error that would result in a disposition more favorable to Garrett, we affirm.
PROCEDURAL HISTORY
Case No. F18903146
On February 19, 2019, the Fresno County District Attorney's Office filed a first amended information charging Garrett with attempted murder (Pen. Code, §§ 664/187, subd. (a); count 1); assault with a semiautomatic firearm (§ 245, subd. (b); count 2); discharging a firearm with gross negligence (§ 246.3, subd. (a); count 3); possession of a firearm by a felon (§ 29800, subd. (a)(1); count 4); and carrying a loaded firearm in public (§ 25850, subd. (a); count 5). The information further alleged that Garrett personally discharged a firearm (§ 12022.53, subd. (c)) in the commission of count 1, and that he had personally used a firearm in the commission of count 2 (§12022.5, subd. (a)).
All undefined statutory citations are to the Penal Code unless otherwise indicated.
As to counts 1 through 3, it was further alleged Garrett committed the offenses for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) The information further alleged Garrett had suffered two prior prison terms (§ 667.5, subd. (b)), and that the instant offenses were committed while Garrett was released from custody on bail (§ 12022.1).
At a pretrial hearing, the People dismissed the section 12022.1 enhancement allegation. The trial court also granted defense counsel's motion to bifurcate the gang enhancement and prior conviction enhancement allegations.
On February 21, 2019, the People also dismissed count 5 of the information.
On March 5, 2019, a jury found Garrett guilty on all remaining counts charged in the amended information. In addition, the jury found the firearm enhancement allegations attached to count 1 and 2 had been proven.
On March 6, 2019, the People dismissed count 3 of the information. The People also subsequently moved to strike the prior prison term enhancement allegations.
On March 12, 2019, the jury declared itself deadlocked on the gang enhancements. The trial court declared a mistrial on those enhancements.
On May 24, 2019, Garrett filed a motion for new trial alleging ineffective assistance of counsel.
On June 10, 2019, following a Marsden hearing, Garrett's motion for a new trial was denied. The People moved to strike the gang enhancements.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
On July 26, 2019, the trial court sentenced Garrett to an aggregate term of 29 years in state prison. He received the upper term of nine years for attempted murder (§§ 664/187, subd. (a)), and 20 years for the firearm enhancement (§ 12022.53, subd. (c)) attached to this count. The sentences on the remaining counts and enhancements were stayed or imposed concurrently.
Garrett waived a hearing on his ability to pay court-imposed fines and fees. The trial court imposed fines and fees in the following amounts: a $250 restitution fine (§ 1202.4), a matching stayed parole revocation restitution fine (§ 1202.45), a court security fee of $40 (§ 1465.8, subd. (a)(1)), a $30 assessment fee (Gov. Code, § 70373), and a suspended probation report fee of $296 (§ 1203.1, subd. (b)).
On July 26, 2019, Garrett filed a timely notice of appeal.
Case No. F17901972
On May 31, 2017, the Fresno County District Attorney's Office filed an information charging Garrett with evading an officer (Veh. Code, § 2800.2, subd. (a); count 1); unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); count 2); receiving stolen property (§ 496d, subd. (a); count 3); criminal threats (§ 422; count 4); resisting an executive officer (§ 69; count 5); and battery on a peace officer (§ 243, subd. (b); count 6). The information further alleged that Garrett had suffered two prior prison terms (§ 667.5, subd. (b)).
On July 25, 2019, Garrett entered a plea of no contest pursuant to People v. West (1970) 3 Cal.3d 595, to counts 1, 3, and 5 of the information. The remaining counts and allegations were dismissed by the People.
On July 26, 2019, Garrett was sentenced to a term of three years in state prison, to run concurrent with the sentence imposed in case No. F18903146. The trial court struck the prior prison term enhancements. The trial court imposed fines and fees in the same amount as those imposed in case No. F18903146.
On July 29, 2019, Garrett filed a timely notice of appeal. He did not request a certificate of probable cause.
STATEMENT OF FACTS
Case No. F18903146
On March 27, 2018, at approximately 9:30 p.m., Vincent M. was at the Sierra Inn Motel on Parkway Drive. He had just gotten off work and was standing outside of his room when he observed a Dodge Charger drive through the parking lot and then leave. Ten minutes later, the Charger returned and parked.
The vehicle's passenger, whom Vincent identified as Garrett, exited the vehicle and approached a man standing near the entrance to the parking lot. Garrett was yelling about his gold Cadillac being stolen. He had a pistol in his hand and was waving it at the man, who was later identified as Phillip M. Garrett took a step back, held the gun sideways, and fired a shot at Phillip, but missed. Following the shooting, Garrett fled. Vincent approached Phillip and told him that based upon the close range of the shooting, Phillip was “a very lucky man to be alive, ” and that he did not see how Garrett had missed.
Fresno Police officers recovered one expended nine-millimeter shell casing from the area. Police also recovered surveillance video of the parking lot that depicted the shooting.
Vincent was shown a six-pack photographic lineup of individuals matching the description of the shooter. He identified Garrett as the shooter.
The Charger and the Cadillac belonged to Felicia Edwards, Garrett's girlfriend. Garrett had borrowed the Cadillac from Edwards. On the night of the incident, Garrett called Edwards and told her the Cadillac had been stolen. Edwards called the police to report the vehicle stolen and then drove to Garrett's location in her Charger.
Following further investigation and after obtaining a search warrant, Fresno Police officers searched Edwards's residence and Edwards's Dodge Charger. They found a box of nine-millimeter ammunition in the garage, bullets of two other calibers, mail in Garrett's name, as well as articles of clothing matching the description of the clothing worn by the shooter. Specifically, police found a black t-shirt with the phrase, “Courtesy of the Mac” written on the front in white writing, and tan cargo shorts. Garrett, who used the moniker “Courtesy of The Mac” on Facebook, acknowledged owning a black shirt with this moniker written on the front.
Following a search of the Charger, police found mail in Garrett's name, a nine-millimeter semiautomatic handgun with 16 out of 17 bullets in the magazine, and an empty spare magazine. The nine-millimeter handgun was determined to have fired the shell casing found at the scene of the shooting.
Garrett was arrested and was interviewed by a detective. He waived his Miranda rights. Garrett denied being in the vicinity of the shooting. He claimed that after the Cadillac was stolen, he purchased a bottle and then went home. Garrett also claimed he did not live with Edwards, and he denied any knowledge about the bullets found in Edwards's garage.
Miranda v. Arizona (1966) 384 U.S. 436.
After his arrest, Edwards went to visit Garrett in jail. During their visit, which was recorded, Edwards and Garrett discussed taking something out of her garage and putting it into the trunk of the Charger. Edwards stated she “put it in there cause [she] didn't know what to do with it, ” and that “[t]hey searched the garage.” In another recorded visit, Garrett and Edwards discussed the case, and how she could be Garrett's witness.
On December 27, 2018, police searched Garrett's jail cell and found a letter under the mattress area of Garrett's bunk. The letter referenced a story about a dark-complected Hispanic male named “JC, ” which was a manufactured name. The letter was signed, “Courtesy of the Mac.”
Defense Case
Garrett testified that on the night of the shooting, he was putting gas in Edwards's Cadillac. When he returned from the store after paying for gas, the Cadillac was gone. Garrett's friend “James” happened to be across the street when the vehicle was stolen. James told Garrett that a “Mexican guy with a hoodie just got in your car and drove off.” Garrett called Edwards so that she could report the vehicle as stolen.
Approximately 20 minutes later, Edwards arrived at the gas station. Edwards, Garrett, and James drove down Parkway Drive in the same direction the suspect had driven. They stopped near the Valley Inn Motel and Edwards let James out near a group of people he knew. Edwards then drove to the Welcome Inn Motel where she let Garrett out to canvass the area.
Edwards returned less than 10 minutes later. She and Garrett drove to the gas station where they stopped to get gas and get “a bottle.” Garrett last observed James near a motel by the Valley Inn, which was adjacent to the Sierra Inn Motel. James flagged Garrett down. James told Garrett he was going to remain in the area all night, and that he would keep Garrett posted.
Garrett claimed the discussion he had with Edwards about a duffle bag concerned a bag containing hydroponic equipment and marijuana. He denied telling Edwards what to say to police or how to testify.
Case No. F17901972
The parties stipulated that the transcript from Garrett's preliminary hearing furnished a factual basis for Garrett's plea.
On March 31, 2017, Garrett was arrested after a police pursuit of his vehicle. Garrett failed to yield to a traffic stop initiated by Fresno County Sheriff's deputies. He was subsequently detained by another agency. Garret failed to comply with orders by a sheriff's deputy and he spat on a deputy. He was arrested for suspicion of driving under the influence of alcohol. After refusing a breathalyzer, he was taken to a medical center for a blood draw. The vehicle he was driving had been reported stolen.
DISCUSSION
After independent review of the record, we find that no reasonably arguable factual or legal issues exist. With respect to Garrett's assertions in his supplemental brief, we find no error for the reasons discussed below.
I. The Prosecutor's Comments During Opening Argument
Garrett contends the prosecutor misstated the evidence when he remarked during opening argument that Garrett had tried to shoot the victim in the head. Garrett contends that Vincent M. testified Garrett aimed his gun at the victim's torso, not his head. We conclude the record does not support Garrett's assertion that the prosecutor misled the jury, or that he committed prosecutorial error.
As the trial court concluded, the prosecutor's statement describing where Garrett had aimed and fired his gun was a fair comment based on the evidence. Even assuming error however, we find no prejudice upon this record. A surveillance video depicting the shooting was played for the jury at Garrett's jury trial. Thus, the jury could reasonably ascertain how the shooting occurred based upon the evidence adduced at trial.
Additionally, whether the firearm was aimed at the victim's head or his torso is a distinction without a difference as either fact would support a conviction for attempted murder. To convict Garrett of attempted murder, the jury found he (1) made a direct but ineffectual act toward killing Phillip M. and (2) he intended to kill Phillip. (People v. Smith (2005) 37 Cal.4th 733, 739; CALCRIM No. 600.) The jury could reasonably infer Garrett had the requisite intent to kill Phillip by aiming and then firing a gun either at his head or his torso. Garrett's assertions to the contrary are unpersuasive.
II. CALCRIM No. 123
Garrett contends the trial court prejudicially erred by giving a jury instruction which identified the witness as “John Doe.” The instruction provides the following in relevant part: “In this case a person is called John Doe. This name is used only to protect his privacy as required by law. The fact that the person is identified in this way is not evidence. Do not consider this fact for any purpose.”
Defense counsel did not object to the instruction, nor are there any discussions on the record explaining why this instruction was given. We presume the instruction was given because the victim was an uncooperative witness. He would not look at a photographic lineup of suspects, and the prosecutor was unable to secure his presence at trial and for the preliminary hearing.
We will presume the trial court erred by giving the instruction insofar as the instruction stated the pseudonym “John Doe” was used to protect the victim's privacy, “as required by law.” As the victim here was not a victim of a designated sex offense (§ 293.5), protection of his privacy was not required by law.
We are unable to conclude however that the improper instruction amounted to anything more than harmless error. It is not reasonablyprobable that a result more favorable to Garrett would have been reached if the instruction had not been given. (People v. Watson (1956) 46 Cal.2d 818, 836.)
The evidence presented against Garrett at trial was strong. An eyewitness who testified at his trial identified Garrett as the shooter, and a gun found in the trunk of Edwards's Dodge Charger was determined to have been fired at the scene of the shooting. Clothing matching a description of the clothes worn by the shooter was also recovered by police when they searched Edwards's residence. Further, the shooting was depicted on surveillance video.
In contrast, the erroneous jury instruction merely told the jury not to consider the fact that a person at trial was referred to as “John Doe” for any purpose. As the jury is presumed to have followed the trial court's instruction (People v. Letner and Tobin (2010) 50 Cal.4th 99, 172), the record does not support Garrett's assertion that the jury assumed the victim did not testify because he was afraid of Garrett. We therefore conclude there is no reasonable probability that had this instruction not be given, the jury would have reached a different verdict.
Garrett further contends the prosecutor's failure to secure Phillip's presence at his trial violated his Sixth Amendment right to confrontation. However, the prosecutor did not seek to admit any testimonial statements made by Phillip at Garrett's trial.
III. Ineffective Assistance of Counsel
Garrett contends his trial counsel was incompetent on the following grounds: (1) for failing to present mitigating evidence showing where the gun was pointed; (2) for failing to subpoena the victim to testify at Garrett's trial; and (3) for failing to argue for mitigated charges, such as negligent discharge of a firearm. Upon this record, Garrett has not met his burden of establishing prejudicial error.
To demonstrate prejudice from trial counsel's incompetence, the defendant must show a reasonable probability that he would have received a more favorable result had counsel's performance not been deficient. (Strickland v. Washington (1984) 466 U.S. 668, 693-694; Harrington v. Richter (2011) 562 U.S. 86, 112 [“[t]he likelihood of a different result must be substantial, not just conceivable”]; People v. Fairbank (1997) 16 Cal.4th 1223, 1241 [“A defendant must prove prejudice that is a ‘ “demonstrable reality, ” not simply speculation' ”].) As Garrett's assertions of prejudice are purely speculative, we reject his claim of ineffective assistance of counsel.
With respect to Garrett's claim that trial counsel should have argued for mitigated charges, “[t]he prosecutor … has sole discretion to determine whom to charge, what charges to file and pursue, and what punishment to seek.” (Dix v. Superior Court (1991) 53 Cal.3d 442, 451.) Nothing upon this record suggests that the prosecutor would have been amenable to resolving Garrett's case for a conviction of negligent discharge of a firearm. As previously discussed, the evidence supporting Garrett's conviction for attempted murder is strong.
IV. Motion for New Trial
Garrett claims the trial court denied him his right to effective assistance of counsel by forcing trial counsel to prove his own incompetence when arguing the motion for new trial. He further contends the trial court improperly denied his motion for a new trial. Both assertions are without merit. As the question of whether to appoint new counsel to present a motion for new trial upon a claim of ineffective assistance of counsel is distinct from the question of whether a new trial is warranted, we address each claim separately below.
First, the record does not support Garrett's assertion that the trial court should have appointed new counsel to present his motion. “[I]n hearing a motion for new trial based on incompetence of trial counsel, the trial court must initially elicit and fully consider the defendant's reasons for believing he was ineffectively assisted at trial. In so doing, the court must make such inquiries of the defendant and trial counsel as in the circumstances appear pertinent. If the claim is based upon acts or omissions that occurred at trial or the effect of which may be evaluated by what occurred at trial the court may rule on the motion for new trial without substituting new counsel. If, on the other hand, the claim of incompetence relates to acts or omissions that did not occur at trial and cannot fairly be evaluated by what occurred at trial, then, unless for other good and sufficient reason the court thereupon grants a new trial, the court must determine whether to substitute new counsel to develop the claim of incompetence. New counsel must be appointed when the defendant presents a colorable claim that he was ineffectively represented at trial; that is, if he credibly establishes to the satisfaction of the court the possibility that trial counsel failed to perform with reasonable diligence and that, as a result, a determination more favorable to the defendant might have resulted in the absence of counsel's failings.” (People v. Stewart (1985) 171 Cal.App.3d 388, 396-397, disapproved by People v. Smith (1993) 6 Cal.4th 684, 691-696.)
At the hearing on Garrett's motion for new trial, Garrett requested the trial court relieve his trial counsel and appoint new counsel to argue the motion. Following Garrett's request, the trial court held a Marsden hearing to discuss Garrett's claims. We have reviewed the claims made in Garrett's motion for new trial, as well as transcripts from the confidential hearing. Neither suggest Garrett made a viable claim of ineffective assistance of counsel. We therefore conclude the trial court properly denied Garrett's request to have his appointed attorney relieved.
Insofar as Garrett further contends he intended to retain new counsel to argue the motion for new trial but that the trial court denied him the opportunity to do so, the record does not support the conclusion that he made a timely request to discharge his appointed attorney. Garrett's appointed attorney advised the trial court at the hearing on Garrett's motion for new trial that Garrett “may want to” hire an attorney. (Italics added.) This is not sufficient to infer that a timely request was made.
Second, with respect to the trial court's denial of Garrett's motion for new trial, we find no abuse of discretion. (People v. Lightsey (2012) 54 Cal.4th 668, 729 [“ ‘ “ ‘A trial court's ruling on a motion for new trial is so completely within that court's discretion that a reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of that discretion' ”' ”].) Garrett's motion was premised on ineffective assistance of counsel and prosecutorial misconduct. The record does not support that a new trial was warranted on either ground.
Garrett asserts the cumulative effect of the errors he has identified necessitates reversal of his conviction. As we have found no merit to his assertion of error on any basis, we summarily reject his argument that his conviction must be reversed.
V. The Restitution Fines Imposed Were Unlawful
Probation recommended Garrett pay a restitution fine in the amount of $8,700. At sentencing, the trial court advised Garrett it intended to impose a fine in the amount of $250, but that Garrett was “entitled to a hearing to determine his ability to pay.”
The trial court observed the probation officer's report noted Garrett was in good physical health, he reported no mental health issues, and nothing would preclude him from obtaining employment while in state prison. In light of these findings, and given the trial court's stated intention to impose a fine in the amount of $250 rather than $8,700, the trial court asked Garrett whether he was requesting an ability to pay hearing. Garrett waived his right to the hearing, and the trial court imposed a restitution fine in the amount of $250, and a stayed parole revocation restitution fine in the same amount. The trial court also imposed a court operations fee in the amount of $40, and an assessment fee in the amount of $30. The same fines and fees were applied in both of Garrett's cases.
At the time of Garrett's offenses in March 2017 and March 2018, section 1202.4, subdivision (b)(1) provided in relevant part as follows: “The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. If the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300), and not more than ten thousand dollars ($10,000).” (Former § 1202.4, subd. (b)(1), italics added.)
Imposition of the restitution fine is statutorily required “[i]n every case where a person is convicted of a crime, … unless [the court] finds compelling and extraordinary reasons for not doing so and states those reasons on the record.” (§ 1202.4, subd. (b).) Thus, the trial court was required to impose a minimum restitution fine of $300, or no fine at all. (§ 1202.4, subd. (b).) The erroneous imposition of a restitution fine in an amount other than that which is authorized by statute presents a pure question of law, which is correctible on appeal as it is an obvious sentencing error. (People v. Smith (2001) 24 Cal.4th 849, 853.) We will therefore modify the judgment to reflect a restitution fine in the amount of $300 in both case Nos. F18903146 and F17901972, as well as an identical parole revocation restitution fine (§ 1202.45), which is to remain stayed unless Garrett's parole is revoked.
VI. The Abstracts of Judgment Must be Corrected
The abstract of judgment for both cases reflects a conviction for assault with a semiautomatic firearm in count 2, but the corresponding citation is to “186.22(b)(1).” As the abstracts of judgment must be corrected to reflect the statutorily required minimum restitution fines, we will order the trial court to correct these documents to reflect a conviction for section 245, subdivision (b).
DISPOSITION
The trial court is directed to prepare new minute orders for the sentencing on July 25, 2019, and July 26, 2019; to prepare new abstracts of judgment to amend the restitution fine (§ 1202.4) and matching parole revocation fine (§ 1202.45); and to correct the Penal Code section citation for Garrett's conviction for assault with a semiautomatic firearm appearing in the abstracts of judgment. The trial court is ordered to forward the new abstracts of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
[*] Before Peña, Acting P.J., Smith, J. and Snauffer, J.