Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. C152095
NEEDHAM, J.
Appellant Jermaine Givens was convicted of first degree murder with a special circumstance and related charges after he shot two rival drug dealers, killing one and seriously injuring another. He contends: (1) the prosecutor committed prejudicial misconduct during closing argument by stating that appellant’s mother had not testified on his behalf because she knew he was guilty, and by vouching for the credibility of a police officer witness; (2) defense counsel was ineffective in failing to object to irrelevant and prejudicial testimony about the criminal activity endemic to the area where the shooting occurred; and (3) the imposition of an upper term sentence on one of the counts violated his rights under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). We agree with the last contention, but otherwise affirm.
I. Factual and Procedural History
Harold Wilson, Jr. was released from prison in April 2005 and began selling crack cocaine in Dog Town, a high crime area in Oakland known for street-level drug dealing, shootings and other violence. Michael Cole and Anthony Johnson were drug dealers in the area who were close friends of Harold Wilson’s. Appellant also sold drugs in Dog Town, along with his friends Gregory “Mouse” Davis and Jackie Wilson. There were tensions between Jackie Wilson and Michael Cole’s family, and appellant sided with Jackie Wilson. A friend of appellant’s, Keith Wilson, had been murdered recently, and a relative of Cole’s had been arrested for that murder.
At about 5:30 a.m. on June 3, 2005, Harold Wilson was selling drugs at the corner of 30th and Magnolia, along with Cole and Johnson. A car with tinted windows slowly approached and Wilson told Cole the car “looked funny.” Cole said Wilson was “tripping.” The car passed them before turning around and driving back in their direction. Wilson saw appellant smiling at him in the back seat with the window rolled down. Appellant began firing at them through the open window of the car with an AK-47, and one of the shots hit Wilson in the stomach. Some of the bullets penetrated an apartment where Sonya L. lived with her three sons, breaking a number of her belongings and leaving several bullet holes in her wall.
Wilson asked Cole to call an ambulance. The car came back toward them and more shots were fired. Wilson was shot in his side, but was able to run to a friend’s house to call for help. He was taken to the hospital, where he fell into a coma for about three weeks and received treatment for three to four months. Cole was also shot and died on the scene.
Appellant left the Dog Town area to stay with his mother. He was interviewed by police on June 21, 2005, and elected to speak with officers after he was read his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Appellant told them he had moved because his mother was concerned about his safety due to all the violence in Oakland, and he denied knowing anything about the Cole murder. A few days later, Harold Wilson awoke from his coma and identified appellant as the shooter, even though he had told officers before he lost consciousness that he did not know who shot him.
Appellant was arrested and taken into custody on June 29, 2005, where he again elected to speak with officers after being advised of his Miranda rights. During an unrecorded interview with Sergeant Derwin Longmire that lasted several hours, appellant initially denied involvement in the Cole murder. After Longmire (falsely) told him that his friends Mouse and Jackie Wilson had implicated him, appellant acknowledged that he was the shooter. Appellant admitted that he had been selling drugs. He explained that he had felt victimized by Cole and his group and that it was “kill or be killed.” He had seen Cole on the night before the early morning shooting and had taken off running because he was afraid that Cole’s group was coming for him. Appellant called a friend to pick him up and told that friend to bring an AK-47 rifle that the friend had been holding for him. When the friend arrived, appellant got into the back seat and told him to drive to the area where Cole was selling drugs. Appellant claimed he fired the rifle in Cole’s direction but never meant to hit him.
After appellant confessed to the Cole murder, Sergeant Longmire tape recorded an approximately 15-minute series of questions and answers in which appellant reiterated the facts described above. In the recording, appellant acknowledges that he received his Miranda rights, that he agreed to talk to the officers, and that they had not hit him or yelled at him during the unrecorded portion of the interview.
After the interview, appellant was allowed to make a tape-recorded telephone call in which he spoke to his grandmother. He told her he was going to jail for murder, that he had made his statement because everybody “told” on him, and that there had been a witness to the crime. Appellant also spoke to his mother and told her he had confessed. When his mother asked him whether he “did it,” appellant said he had. Appellant’s mother asked whether he had an attorney present, and he told her there was no need because there had been witnesses. She asked appellant, “Why did you gotta get into this stuff, . . . I could have hid you?” to which appellant responded, “The boy who lived seen me, I already told you that.”
Appellant was charged with Cole’s murder and a number of other offenses. He was tried before a jury, where he testified and denied any involvement in the shooting. He claimed that he was tired and suffering from a migraine headache when he was interviewed, and he had confessed only because the police refused to give him a lawyer and he had been up all night. He claimed he thought Sergeant Longmire was going to beat him up, though he acknowledged that Longmire had not threatened him. Appellant testified that the recording of his telephone call with his mother had been altered, because it did not include an exchange in which he told her they would not let him have a lawyer.
The tape recording of the telephone call, which was introduced at trial as People’s Exhibit 5, has been reviewed, and it did not appear abnormal. The defense did not present any expert testimony to support the theory that the tape recording had been altered.
The jury convicted appellant of first degree murder with a drive-by shooting special circumstance (Pen. Code, §§ 187, subd. (a), 189, 190.2, subd. (a)(21)), attempted premeditated murder (§§ 187, subd. (a), 664), shooting at an inhabited dwelling (§ 246) and possession of a firearm by a felon (§ 12021, subd. (a)(1)). As to the murder and attempted murder counts, it found that appellant personally used a firearm causing great bodily injury or death. (§§ 12022.7, subd. (a), 12022.53, subd. (d).) The court imposed the following prison sentence: life without the possibility of parole (LWOP) on the murder count plus 25 years to life for the firearm enhancement attached to that count; a concurrent sentence on the attempted murder count of life imprisonment plus 25 years to life for the firearm enhancement; the seven-year upper term for discharging a firearm and a consecutive eight-month term (one-third the middle term) for the felon with a firearm count, both to run concurrently with the LWOP sentence for murder.
All further statutory references are to the Penal Code unless otherwise indicated.
II. Discussion
Prosecutorial Misconduct During Closing Argument
Appellant argues that the prosecutor committed misconduct during closing argument by stating that appellant’s mother had not testified because she knew he had killed a man. He also claims the prosecutor improperly vouched for Sergeant Longmire, whose veracity was critical given appellant’s claim that he had been denied counsel during the interview Longmire conducted. Although appellant has forfeited these arguments by failing to object in the trial court (People v. Williams (1997) 16 Cal.4th 153, 254), we consider the merits to forestall his alternative claim that defense counsel was ineffective.
A prosecutor’s conduct violates the federal Constitution when it is “ ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’ [Citations.]” (People v. Espinoza (1992) 3 Cal.4th 806, 820.) Under state law, misconduct requires “ ‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ’ [Citations.]” (Ibid.) It is misconduct for a prosecutor to refer to facts not in evidence, because 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.]’ [Citations.]” (People v. Hill (1998) 17 Cal.4th 800, 828.)
Appellant complains that the prosecutor referred to facts not in evidence by arguing that appellant’s mother believed he had killed a man. The challenged comments were made in response to defense counsel’s suggestion during closing argument that the authorities had altered the tape recording of appellant’s telephone conversation with his mother, in which he told her he had committed the killing and had confessed to the police:
“He says, [defense counsel] says that when Michael was killed, [appellant] left Oakland because his mom wanted him to. We would suggest to you that the real reason he left was because Harold Wilson lived. The boy who lived seen me. And that reality made it clear to the defendant I got to get out of dodge. I got to get out of Dog Town because the boy who lived seen me. This is the problem. And if he really left Oakland because mom said son, [it’s] dangerous down there, you got all those gangsters running around shooting each other, why don’t you come on up and stay with me in Woodland for a while until things blow over.
“Where was mom? Why didn’t mom come into this courtroom and tell you folks that? The one thing that I was really, really surprised at in counsel’s argument. I was really surprised that he not with a great deal of conviction and force but suggested that maybe that phone call to mom and grandma was altered somehow. [¶] . . . [¶] . . . But, if there are parts missing, counsel told you, you weren’t there, he wasn’t there, I wasn’t there. The parties of the phone conversation were the defendant, his mom and his grandmother. If in that conversation he said mom, I wanted a lawyer but they wouldn’t let me have one, if that’s true, if that is true, mom would have come right through the door, taken that witness stand, sworn an oath to tell the truth and would have told you that. . . .
“[¶] . . . [¶] If he had not told her that he was involved in this, if he had not told her the boy who lived seen me, she would have come through that door, taken an oath to tell the truth, looked at you and said my son never told me that. She would have been there. That’s just the way it is. [¶] But she didn’t come in here for that purpose either because she was not prepared to come into this courtroom, take an oath to tell the truth and lie to you, not even to help her son, because she knows that he did it. She knows that he killed a man.”
In context, the prosecutor was commenting on a failure by the defense to call a logical witness to support its claim that the authorities had altered a tape recording of a conversation in which appellant confessed to the charged crimes. (People v. Medina (1995) 11 Cal.4th 694, 755-756.) The point was not that appellant was probably guilty because his mother believed he was guilty, or that appellant’s mother had information not available to the jury that would lead her to believe in her son’s guilt. Rather, the prosecutor was arguing the logical inference that appellant’s mother could not contradict what appellant had said to her during the tape-recorded conversation because the recording was accurate and appellant had confessed. (See People v. Bolton (1979) 23 Cal.3d 208, 212.) Unlike People v. Hall (2000) 82 Cal.App.4th 813, 817, on which appellant relies, the prosecutor did not tell the jury what the testimony of appellant’s mother would have been, and did not present evidence not subject to cross-examination.
Moreover, the statement that appellant’s mother knew he had committed the crime was not prejudicial. The prosecutor’s point was that appellant’s mother believed in his guilt because he had, in fact, told her he was guilty when he spoke to her on the telephone. This argument was based on admissible evidence (the tape-recorded telephone call) and would have been apparent even in the absence of any specific argument. There is no reasonable likelihood the jury believed the prosecutor was referring to additional information on the subject that was not presented at trial. (See People v. Dennis (1998) 17 Cal.4th 468, 522.) And there is no reasonable probability that the result of the trial would have been different if counsel had objected to the comments and obtained a curative instruction from the court. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694 (Strickland); People v. Mesa (2006) 144 Cal.App.4th 1000, 1007-1010 (Mesa) [applying Strickland test of prejudice applicable to ineffective assistance of counsel claims to alleged prosecutorial misconduct that was not objected to by defense counsel].)
We similarly reject appellant’s claim that reversal is required because the prosecutor improperly vouched for Sergeant Longmire: “You heard from Sergeant Longmire. You are in the best position to judge whether or not that officer is sincere and hard working and honest. And I will submit to you that he is and that he showed that side of him in this trial when he came in and testified to you. [¶] A homicide investigation is a search for truth. It’s an effort to bring those responsible for murder to justice. Those ends are not served by forcing a confession out of somebody that just happens to live in the neighborhood. I would submit to you that Sergeant Longmire is a professional. He’s an honest man. He’s an honest law enforcement law officer who’s not going to jeopardize his career, risk termination, civil suit and criminal prosecution to get Jermaine Givens to admit to something that he did not do. He’s a man who wants the right person brought to justice.”
“Vouching consists of placing the prestige of the government behind a witness through personal assurances of the witness’s veracity, or suggesting that information not presented to the jury supports the witness’s testimony.” (United States v. Necoechea (9th Cir. 1993) 986 F.2d 1273, 1276.) “[S]o long as a prosecutor’s assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the ‘facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,’ her comments cannot be characterized as improper vouching. [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 971.)
Appellant relies on United States v. Weatherspoon (9th Cir. 2005) 410 F.3d 1142 (Weatherspoon), in which the prosecutor made several statements amounting to misconduct during closing argument, among them: “These are officers that risk losin’ their jobs, risk losin’ their pension, risk losin’ their livelihood. And, on top of that if they come in here and lie, I guess they’re riskin’ bein’ prosecuted for perjury. Doesn’t make sense because they came in here and told you the truth, ladies and gentlemen.” (Id. at pp. 1146-1147.) Though the prosecutor’s comments about Sergeant Longmire in this case were similar in flavor, they do not require reversal.
First, the challenged remarks did not suggest the prosecutor had information unavailable to the jury that showed Longmire to be a credible witness. Rather, he specifically indicated that the jurors were the best judge of Longmire’s veracity. Second, the prosecutor prefaced the challenged comments with the phrase, “I submit,” which conveyed that the statements were intended only as a submission for the jury’s consideration, rather than a personal assurance. (See Weatherspoon, supra, 410 F.3d at p. 1147, fn. 3 [prosecutor’s use of phrase “I submit” preferable to “I think”].) Third, the prosecutor’s argument that Longmire would not risk civil suit was based on the evidence introduced at trial, because Longmire had testified that he would be subject to a lawsuit if he refused a suspect’s request for an attorney (as appellant claimed Longmire had). Given the strong evidence of appellant’s guilt (an eyewitness identification coupled with a tape-recorded confession), it is not reasonably probable that he would have obtained a more favorable outcome if defense counsel had objected to the alleged vouching. (See Mesa, supra, 144 Cal.App.4th at pp. 1007-1010.)
Defense Counsel’s Failure to Object to Evidence That 30th and Magnolia Was a High Crime Area
Oakland Police Department Officer Brad Baker testified that the corner of 30th and Magnolia in Dog Town is a high crime area in which shootings, homicides and drug deals regularly occur. He described it as one of the most active areas in the city for street-level drug dealing, which take place 24 hours a day, seven days a week. Baker testified that he had never seen appellant selling drugs there, but had seen him in the company of Gregory “Mouse” Davis, who was associated with drug dealing. Appellant argues that this testimony was irrelevant to the charges in this case, and that defense counsel committed prejudicial error by failing to object to its admission.
Relevant evidence is that which “ ‘tends “logically, naturally, and by reasonable inference” to establish material facts such as identity, intent, or motive.’ [Citation.]” (People v. Benavides (2005) 35 Cal.4th 69, 90; see Evid. Code, § 210.) A defense attorney’s failure to object to irrelevant and incriminating evidence may amount to ineffective assistance of counsel. (See In re Neely (1993) 6 Cal.4th 901, 919.) As with other claims of ineffective assistance, the defendant must prove that counsel’s performance “fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney,” and that “there is a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings.” (People v. Cunningham (2001) 25 Cal.4th 926, 1003; see also Strickland, supra, 466 U.S. at pp. 687, 694.) On direct appeal, the record must affirmatively disclose that counsel had no rational tactical purpose for the alleged omission. (People v. Bolin (1998) 18 Cal.4th 297, 333; People v. Fosselman (1983) 33 Cal.3d 572, 581.)
We are not persuaded that Baker’s testimony was irrelevant. Other evidence established that 30th and Magnolia was an area where drugs were sold with some frequency, that appellant, Davis and Wilson were friends who dealt drugs together, and that Cole and his group did the same. The prosecution’s theory was that appellant killed Cole because he was a rival dealer who did not get along with appellant’s group, and that appellant wanted to control a lucrative location for selling drugs. Baker’s testimony about the area tended to support the prosecution’s theory of motive, and defense counsel was not required to lodge an unmeritorious relevancy objection. (People v. Felix (1994) 23 Cal.App.4th 1385, 1394-1395.)
Even if we assume an objection to Baker’s testimony would have been sustained, reversal is not required because it is not reasonably probable appellant would have received a more favorable outcome if the testimony had been excluded. (Strickland, supra, 466 U.S. at pp. 687, 694.) Other evidence established that 30th and Magnolia was an area prone to drug dealing and street violence. Harold Wilson testified that appellant was one of the people who dealt drugs on that corner, a fact that was confirmed by appellant himself during his interview with Officer Longmire. Baker’s testimony about the general reputation of Dog Town and the corner of 30th and Magnolia would not have prejudiced appellant or caused the jury to convict him on grounds other than the strength of the evidence against him.
Cunningham Error
Appellant argues that the court committed Cunningham error when it imposed the seven-year upper term sentence for his conviction of shooting at an inhabited dwelling under section 246. This contention has merit.
Under the federal Constitution, any factor increasing the penalty for a crime beyond the statutory maximum is akin to an element of the offense and must be submitted to the jury and proved beyond a reasonable doubt. (Blakely v. Washington (2004) 542U.S. 296, 303-304 (Blakely); Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi).) In Cunningham, the court analyzed California’s determinate sentencing law (DSL) and concluded that under the three-tiered sentencing structure applicable to most offenses, the middle term was the statutory maximum because the upper term could not be imposed absent additional factual findings. (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at pp. 868, 871]; see also § 1170, subd. (b).) Subject to an exception for recidivism that is not relevant here, Cunningham held that the DSL ran afoul of the principles set forth in Apprendi and Blakely to the extent it allowed the imposition of an upper term sentence based on aggravating factors that were found true by the trial court using only a preponderance of the evidence standard. (Cunningham, supra, at p. 871.)
Section 1170 has since been amended to comply with Cunningham by eliminating the statutory preference for the middle term and by making the selection of a determinate term subject to the sound discretion of the court. (Stats. 2007, ch. 740 (A.B. 1539), § 1.)
The court in this case relied on four factors in aggravation when it imposed the upper term sentence: the crime involved great violence (Cal. Rules of Court, rule 4.421(a)(1)); appellant was armed with a weapon and used that weapon at the time of the offense (rule 4.421(a)(2)); the crime involved planning, sophistication and professionalism (rule 4.421(a)(8)); and appellant engaged in violent conduct indicating a serious danger to society (rule 4.421(b)(1)). None of these factors were specifically admitted by appellant or found true by the jury.
All further references to rules are to the California Rules of Court.
The People argue that any error was harmless beyond a reasonable doubt because a jury presented with these factors would have found them to be true. (See People v. Sandoval (2007) 41 Cal.4th 825, 838-839.) We do not agree. Although appellant’s conduct as a whole involved “great violence” and “violent conduct indicating a serious danger to society,” we are concerned here not with the murder and attempted murder counts, but with the single crime of shooting at an inhabited dwelling. Though the shots that were fired into Sonya L.’s apartment were no doubt terrifying to her, no one in the apartment was injured and it does not appear that she was an intentional target. A jury might have determined that the “violence” factors applied, but we cannot conclude beyond a reasonable doubt that it would have done so. Similarly, the “planning and sophistication” factor, though applicable to the murder and attempted murder counts, does not clearly apply to the violation of section 246, which appears to have been incidental to the intentional shootings of Cole and Harold Wilson. And while it was clear appellant was armed and used a weapon in the commission of the offense, that was not a proper aggravating factor when the discharge of a firearm is an element of section 246. (See rule 4.420(d) [fact that is element cannot be used to impose upper term]; People v. Zamarron (1994) 30 Cal.App.4th 865, 872 [aggravating factor must render offense distinctively worse than average].) The error under Cunningham cannot be deemed harmless.
III. Disposition
The seven-year upper term sentence for the violation of section 246 (count 3) is vacated. The trial court, by written notice to counsel, and the prosecutor, by written notice to the trial court and counsel, each has the right to initiate, within 30 days after the filing of the remittitur in the trial court, a contested resentencing hearing within 60 days after the filing of the remittitur in the trial court, to be conducted in accordance with the procedures recently outlined by our Supreme Court in People v. Sandoval, supra, 41 Cal.4th at pages 843-852. If no resentencing hearing is initiated within 30 days of the issuance of the remittitur, the sentence on count 3 shall be modified to the five-year middle term. The judgment is otherwise affirmed.
We concur. SIMONS, Acting P. J, STEVENS, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.