Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, Super.Ct.No. RIF123125, Roger A. Luebs, Judge.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant Juan Guerrero.
Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant Edwardo Guerreo.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
A jury found defendants Edwardo Guerrero (Edwardo) and Juan Guerrero (Juan) guilty of first degree murder. (Pen. Code, § 187, subd. (a).) The jury also found true that Edwardo had personally discharged a firearm within the meaning of section 12022.53, subdivision (d). Edwardo was sentenced to 50 years to life; Juan was sentenced to 25 years to life.
All future statutory references are to the Penal Code unless otherwise stated.
On appeal, Juan contends (1) the trial court prejudicially erred and violated his constitutional rights when it refused to instruct the jury on the elements of accessory after the fact, and (2) his counsel was ineffective when counsel failed to request a pinpoint instruction concerning his defense theory that he was only an accessory after the fact to the murder offense. We reject these contentions and affirm the judgment.
Edwardo also appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record. Edwardo also filed a personal supplemental brief, which we have read and considered.
I
FACTUAL BACKGROUND
In August 2004, Edwardo purchased a .38-caliber automatic pistol from Turner’s Outdoorsman in Riverside. At that time, and through April 2005, Edwardo’s father, Juan, owned an automotive body and repair shop called Quality Automotive located on Mission Boulevard in Rubidoux.
In December 2004, Dr. Kayoko Fukuda delivered her 1993 Infiniti to Juan’s shop for body repair work. When the car was delivered for repairs, the odometer showed that the Infiniti had previously been driven 155,831 miles.
On April 10, 2005, around 11:00 a.m., Frank Valdez was sitting on a bench drinking a beer near Quality Automotive waiting to go to work at Lee’s Discount Market (Lee’s Market), located about a block from Juan’s auto shop. Valdez saw a car with red flames on the side of it, which was later identified as one of Edwardo’s cars, pull into a parking lot near Quality Automotive at a fairly high rate of speed. A Hispanic man got out of that car and had a conversation with another Hispanic man. As they spoke, one or both of them pointed at a person on a bicycle who was riding near the intersection of Mission Boulevard.
Anthony Lopez was traveling on Mission Boulevard in his 1988 Cadillac and saw a friend, Richard Gutierrez, riding his bicycle near Mission Boulevard. Lopez stopped near Lee’s Market, and Gutierrez came over to the driver’s side window of Lopez’s car to talk to him. A few minutes later, a car stopped quickly near them, and a man, later identified as Edwardo, got out of the driver’s seat of the vehicle. Edwardo approached Gutierrez and asked him, “‘What the fuck is your problem[?]’” Edwardo then produced a handgun from his waistband and shot Gutierrez once in the arm.
Lopez died of natural causes prior to trial, so his preliminary hearing testimony was read to the jury.
Gutierrez ran toward Lee’s Market, and Edwardo chased after him and fired more shots at him. Gutierrez entered the market and tried to hold the glass door shut, but Edwardo fired a shot that shattered the glass door. Edwardo then entered the market and fired multiple shots at Gutierrez, changing the magazine in the gun at one point. Gutierrez was hit multiple times and died at the scene.
Valdez, who was working in Lee’s Market when Gutierrez entered the store followed by Edwardo, also saw the shooting. He identified Edwardo as the shooter. Valdez believed that Gutierrez was the same person he had seen the Hispanic men pointing at near the intersection of Mission Boulevard about 30 minutes prior to the shooting.
After Edwardo entered the market, Lopez looked over at the car in which Edwardo had arrived and saw Juan sitting in the driver’s seat. Lopez identified the car as Dr. Fukuda’s Infiniti, the car depicted in People’s exhibit 1, although there were no primer spots on the car on the day of the shooting, as there were in the photograph. Valdez was also shown a picture of the Infiniti and said the car looked similar to the one into which Edwardo had gotten after the shooting.
Lopez believed that Juan had slid over from the passenger seat to the driver’s seat. While Edwardo was in the store, Juan warned Lopez that he better not leave. When Edwardo came out of the store and jumped into the passenger side of the car, Lopez, fearing that he might be the next victim, quickly pulled out of the parking lot. Juan and Edwardo chased Lopez for a considerable distance at a high speed before Lopez lost them.
Investigating police officers found five .38-caliber bullet casings, three .38-caliber live bullets, and one .38-caliber projectile at Lee’s Market. They also found a bicycle on its side in the parking lot of the market.
On April 12, 2005, police arrested Juan and Edwardo. Juan was arrested at his place of business and, at that time, had the key to Dr. Fukuda’s 1993 Infiniti in his pocket. A search of the Infiniti revealed some personal items that may have belonged to Juan, including a day planner, papers from Quality Automotive with Juan’s name on them, a checkbook, and an envelope with $500 cash in it. The police impounded the Infiniti; it was stipulated that the odometer at that time showed 155,831 miles on it, the same as when Dr. Fukuda delivered the vehicle to Quality Automotive a few months earlier.
Juan’s defense was that he had been mistakenly identified as being the driver of the getaway car. Alternatively, he claimed that if he was in that vehicle, he did not know his son Edwardo intended to shoot Gutierrez and that he only aided his son in escaping from the area after the offense had been committed.
In support of his mistaken identification defense, Juan’s wife and daughter both testified that he was with them at home at the time of the shooting. In support of his defense that he only aided his son in escaping from the scene after the offense was committed, Juan’s counsel pointed to Lopez’s testimony that Juan was in the passenger seat when they arrived at the market and argued that this indicated that he did not know what his son intended at that time. Juan’s counsel also noted that there was no evidence that he gave any aid to Edwardo, other than driving him away from the scene after the offense had been committed.
Edwardo’s defense was also mistaken identification and the fact that the odometer reading on Dr. Fukuda’s car had not changed since she dropped the car off at the shop. The defense also presented several character witnesses, all of whom testified that Edwardo had a reputation for peacefulness. Edwardo’s counsel also pointed out that the prosecution presented no evidence of motive or any evidence of prior contact between the defendants and the victim prior to the shooting.
II
DISCUSSION
A. Juan’s Appeal
Juan argues that the trial court erred when it refused his request to instruct the jury on the lesser related offense of accessory after the fact pursuant to section 32. Juan acknowledges that California law does not allow a court to instruct on an uncharged lesser related crime unless agreed to by the prosecution. (People v. Birks (1998) 19 Cal.4th 108 (Birks).) He also concedes that accessory after the fact is a lesser related offense to murder (People v. Majors (1998) 18 Cal.4th 385, 408) and that the prosecution did not agree to such an instruction here. Nevertheless, he maintains that the trial court erred because, he says, “the elements of accessory would have explained his defense theory to the jury by drawing a clear distinction between persons that aid perpetrators before or during a crime, and those that aid the perpetrator to escape after a crime has been committed,” and thus the failure to give an accessory after the fact instruction infringed on his constitutional rights to present a defense, due process, and trial by jury.
Juan’s argument seeks to have us ignore Birks. We cannot. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In this case, the prosecutor opposed an instruction on accessory after the fact, and the trial court’s refusal to instruct the jury on the lesser related offense was proper. (Birks, supra, 19 Cal.4th at p. 136.) Juan’s characterization of the court’s refusal as a failure to instruct on a defense theory misses the mark. The offense of accessory after the fact is not a defense to murder; rather, it is a theory of criminal liability based on a different offense. Thus, the failure to give an accessory instruction did not impinge on Juan’s right to present a defense to murder, fair trial, or trial by jury; it simply reflected the fact the prosecutor chose not to file accessory charges. There was no error.
We further note that the court’s refusal to instruct on the lesser related offense of accessory after the fact in no way prevented Juan from presenting a strong defense. As our Supreme Court observed in Birks, “[N]othing in our holding prevents the defendant from arguing in any case that the evidence does not support conviction of any charge properly before the jury, and that complete acquittal is therefore appropriate.” (Birks, supra, 19 Cal.4th at p. 136, fn. 19.) Juan had ample opportunity to argue his defense to the jury in this case and the trial court did not err in refusing the accessory after the fact instruction.
Juan’s arguments completely ignore a fundamental basis of our judicial system: that a prosecutor has complete charging discretion. (Birks, supra, 19 Cal.4th at pp. 134-136 [allowing court to instruct on lesser related offenses over the objection of the prosecutor would interfere with the prosecutor’s “sole discretion to determine whom to charge with public offenses and what charges to bring”].)
In a related claim, Juan contends his counsel was ineffective in failing to request a pinpoint instruction on his defense theory that he was only an accessory after the fact to the murder offense.
To prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel’s performance fell below a standard of reasonable competence, and that there is a reasonable probability the result would have been more favorable to the defense in the absence of counsel’s deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [104 S.Ct. 2052, 80 L.Ed.2d 674]; People v. Dennis (1998) 17 Cal.4th 468, 540-541.) When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. (People v. Pope (1979) 23 Cal.3d 412, 426.)
Juan has failed to establish either deficient performance or prejudice under the Strickland standard. Upon request, the defendant is entitled to instructions that pinpoint the theory of the defense case. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1142.) Neither party, however, is entitled to an instruction that pinpoints specific evidence and asks the jury to draw certain conclusions from the specified evidence. (People v. Wright (1988) 45 Cal.3d 1126, 1135.) The trial court need not give a pinpoint instruction that merely duplicates other instructions or is not supported by substantial evidence. (People v. Bolden (2002) 29 Cal.4th 515, 558.) Additionally, a trial court need not give a pinpoint instruction if it is argumentative. (Ibid.; see also People v. Gurule (2002) 28 Cal.4th 557, 659.)
In the present matter, the jury was properly instructed on aiding and abetting. The jury was informed that an aider and abettor must have knowledge of the perpetrator’s intent to commit the crime, that the defendant intended to aid and abet the perpetrator in committing the crime before or during the commission of the crime, and that the defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime. Based on the instructions given, defense counsel was able to argue to the jury that even if the jury believed Juan was at the scene of the crime, there was no evidence to prove that Juan knew Edwardo was going to shoot Gutierrez or knew of Edwardo’s intent to commit the murder before or during the commission of the crime. Because the aiding and abetting instructions given were sufficient to cover the theory of the defense, and a pinpoint instruction emphasizing that “a person who aids the perpetrator only after the felony has been committed, with the intent that the perpetrator avoid or escape arrest, trial, conviction, or punishment is an accessory” would have been properly refused, defense counsel had a reasonable basis for not requesting such an instruction. (Cf. People v. Slaughter (2002) 27 Cal.4th 1187, 1222 [finding no ineffective assistance where defense counsel reasonably could have concluded that requesting a particular jury instruction would have been futile].)
B. Edwardo’s Appeal
In his supplemental brief, Edwardo makes several claims related to the sufficiency of the evidence to sustain the jury’s verdict and alleged constitutional errors. Specifically, he asserts (1) the jury failed to make a determination that Edwardo’s acts proximately caused the victim’s death as they were instructed to do; (2) his constitutional rights were violated when the jury’s verdict was insufficient; (3) the People failed to prove beyond a reasonable doubt every element of the crime; and (4) the jury’s finding of first degree murder as to Edwardo and Juan is an “inconsistent verdict” because there was insufficient evidence to support the jury’s findings that there were two perpetrators that both willfully and intentionally committed the murder. He also generally argues that his counsel was ineffective during the entire proceedings. He further claims his appellate counsel was ineffective for filing a Wende brief when meritorious issues exist in the appellate record.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error. First, having thoroughly reviewed the record, we find substantial evidence to support the jury’s verdict that Edwardo committed first degree murder and that he personally discharged a firearm in the commission of the crime. There was more than ample evidence to support the jury’s verdict. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [99 S.Ct. 2781, 61 L.Ed.2d 560]; People v. Bolin (1998) 18 Cal.4th 297, 331.) Second, contrary to Edwardo’s claim, the jury found every element of the crime without a reasonable doubt when it announced the verdict and as instructed by law. (See People v. Hendricks (1987) 43 Cal.3d 584, 597.)
Additionally, the jury’s findings do not reflect an inconsistent verdict. (People v. Santamaria (1994) 8 Cal.4th 903, 911, disapproved on another ground in People v. Palmer (2001) 24 Cal.4th 856, 865.) In criminal cases, an inconsistent verdict generally occurs when a jury acquits a defendant on certain charges or does not find an enhancement allegation true. (Santamaria, at p. 911.) Here, the jury found all of the charges and enhancement allegations true.
Nonetheless, even in cases where a jury renders an inconsistent verdict, appellate courts generally do not reverse inconsistent verdicts. (Ibid. [“[w]hen a jury renders inconsistent verdicts, ‘it is unclear whose ox has been gored.’ [Citation.] The jury may have been convinced of guilt but arrived at an inconsistent acquittal or not true finding ‘through mistake, compromise, or lenity . . . .’ [Citation.] Because the defendant is given the benefit of the acquittal, ‘it is neither irrational nor illogical to require her to accept the burden of conviction on the counts on which the jury convicted’”]; People v. Williams (2001) 25 Cal.4th 441, 449 [“[a] jury in a criminal case may return inconsistent verdicts”]; People v. Lewis (2001) 25 Cal.4th 610, 656 [“[i]t is well settled that, as a general rule, inherently inconsistent verdicts are allowed to stand”].)
Moreover, contrary to Edwardo’s claims, there is also no evidence that his counsel rendered ineffective assistance. (Strickland v. Washington, supra, 466 U.S. at p. 688; People v. Hinton (2006) 37 Cal.4th 839, 876 [“‘“[r]eviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’” [Citation.] . . . “[C]ourts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight”’”].) Even if we assume for the sake of argument that his counsel had rendered ineffective assistance, Edwardo cannot show prejudice. To establish prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland, supra, 466 U.S. at p. 694.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Ibid.) In demonstrating prejudice, the defendant “must carry his burden of proving prejudice as a ‘demonstrable reality,’ not simply speculation as to the effect of the errors or omissions of counsel.” (People v. Williams (1988) 44 Cal.3d 883, 937.) Here, Edwardo cannot meet that standard.
Finally, we reject Edwardo’s claim that his appellate counsel was ineffective for failing to include any possible issues in the opening brief. Appellate counsel has the duty to prepare a legal brief containing citations to the appellate record and appropriate authority. Counsel must set forth all arguable issues and cannot argue the case against his or her client. To establish ineffective assistance of counsel, however, as noted above, the defendant must show that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms and prejudice from counsel’s unprofessional errors. The defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. (People v. Harris (1993) 19 Cal.App.4th 709, 714.)
The fact that appellate counsel followed the procedure set forth in Wende is insufficient, by itself, to show appellate counsel has been ineffective. Edwardo has failed to meet his burden of proof on this issue. After our own independent review of the record, we have concluded no reasonably arguable legal or factual argument exists. Appellate counsel’s filing of a Wende brief was not unprofessional.
Pursuant to Wende, supra, 25 Cal.3d 436 and Anders v. California, supra,386 U.S. 738, we have now concluded our independent review of the record. We find no arguable issues.
III
DISPOSITION
The judgments are affirmed.
We concur: McKINSTER, Acting P.J., GAUT J.