Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Riverside County No. RIF127509, Douglas E. Weathers, Judge.
Randy Baker, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
Jerron Henderson appeals from a judgment after a jury convicted him of burglary and attempted robbery. Henderson argues the trial court erroneously failed to bifurcate the street terrorism enhancements from trial on the substantive offenses. He recognizes his defense counsel did not request bifurcation of the enhancements from the offenses in his joint trial with Jaray Christy, and alternatively suggests his counsel was ineffective for failing to request bifurcation, although he asserts any request would have been futile because the court denied Christy’s motion to bifurcate. He also contends the court miscalculated his custody credits. We agree with his credits contention but conclude his other claim is meritless. We affirm the judgment as modified.
FACTS
One December evening, Samir Samaan and his wife, Catia Samaan, were working at the Alessandro Liquor Store in Riverside. Around closing time, Marshawn Burns and Christy entered the store carrying guns, and wearing ski masks, hooded sweatshirts, and gloves. Burns grabbed Samir and pointed a gun at his head. Christy pointed a gun at Catia and prevented her from running into the back room. The bandits took money from the cash register, put it in a bag, and demanded more. When Samir stated they had all the money, Burns told Christy to restrain Catia. Samir, a former police officer, grew concerned for Catia, and he pulled a gun from his waistband and shot Burns twice. Christy heard the shots and ran towards Samir, who shot Christy three times before Christy escaped. Christy got into a dark blue sports utility vehicle driven by Henderson. Catia called 911.
For sake of clarity, we will refer to the Samaans by their first names and intend no disrespect.
Henderson drove Christy to Burns’s sister and husband’s house at 24407 Wildwood Street. Christy told them he and Burns had been shot. The husband took Christy to the hospital.
Law enforcement officers found Burns, who was wearing a hooded sweatshirt, mask, and gloves, dead from multiple gunshot wounds. Officers also found a nine-millimeter handgun, a bag of money, expended bullets and casings, and duct tape.
Officers tracked the sports utility vehicle to the Wildwood address. Inside the vehicle, officers found a hooded sweatshirt, mask, gloves, and blood stains. They also found bloody clothes in a trash can on the property. Law enforcement officers found Henderson’s fingerprints on the sports utility vehicle.
About nine days later, officers arrested Henderson at his mother’s house in Hope, Arkansas. Henderson initially denied involvement in the robbery but then admitted driving the getaway vehicle. Henderson claimed he did not know what Burns and Christy were doing, and that they forced him at gunpoint to be the getaway driver.
The prosecutor offered the testimony of two law enforcement gang experts. They testified Santana Blocc Compton Crips was a criminal street gang in Compton. One of the officers stated some Los Angeles County gangs had migrated to the Riverside area. He also opined Burns and Christy were active members of Santana Blocc criminal street gang. The officer explained Henderson was not an active member of Santana Blocc, but he was an associate. The officer opined Henderson was the getaway driver in the liquor store robbery, and therefore, he was acting at the direction of and in association with Santana Blocc.
An amended information charged Henderson with the murder of Burns (Pen. Code, § 187, subd. (a)) (count 1), burglary (§ 459) (count 2), attempted robbery of Samir (§§ 664, 211) (count 3), attempted robbery of Catia (§§ 664, 211) (count 4), and robbery of Singh Guru (§211) (count 6). At to counts 1, 3, and 4, the amended information alleged Henderson was one of two principals and one principal personally used a firearm within the meaning of section 12022.53, subdivisions (b) and (e). With respect to counts 1, 2, 3, 4, and 6, the amended information alleged he was one of two principals knowing another principal was armed with a firearm within the meaning of section 12022, subdivision (a)(1). As to counts 1, 2, 3, 4, and 6, the amended information alleged he committed the offense for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b).
All further statutory references are to the Penal Code, unless otherwise indicated.
Before trial, Christy’s defense counsel indicated Christy would move to bifurcate the street terrorism enhancements from the substantive offenses. Later when the trial court granted Christy permission to submit a written brief on the matter, Henderson’s defense counsel did not join in the motion. Instead, Henderson’s defense counsel obtained a stipulation from the prosecutor the gang expert would not testify Henderson ever was or is a gang member. When Christy moved to bifurcate, Henderson did not join in this motion, and his defense counsel was not present at the hearing on the motion. The trial court denied the motion.
At trial, Henderson neither testified nor offered any affirmative evidence. Christy, however, testified and offered many witnesses that Henderson’s jury heard. Christy admitted he was a member of Santana Blocc criminal street gang but he moved away and was no longer a member of that gang. He explained Burns also disassociated himself from the gang. Christy said he, Burns, and Burns’s brother-in-law decided to commit a robbery, but the brother-in-law backed out so he recruited Henderson. Christy stated the three men drove around until they found a place they agreed was “hittable.” Christy testified he never threatened Henderson.
The jury acquitted Henderson of counts 1, 4, and 6 but convicted him of counts 2, second degree burglary, and 3, attempted robbery of Samir. As to counts 2 and 3, the jury found true the allegations pursuant to section 12022, subdivision (a)(1), but found not true the street terrorism enhancements.
The parties do not indicate the disposition of the section 12022.53 enhancement allegation as to count 3. Based on our review of the record, it appears the jury did not return a verdict on this allegation. At the sentencing hearing, the trial court did not discuss this allegation, but the minute order indicates the court struck the enhancement.
The trial court sentenced Henderson the upper term of three years on count 2 and a one-year consecutive term on the firearm enhancement. The court stayed sentencing on count 3 and its corresponding enhancement pursuant to section 654.
DISCUSSION
I. Bifurcation & Ineffective Assistance of Counsel
Henderson argues the trial court erroneously failed to bifurcate the street terrorism enhancements from the substantive offenses. The Attorney General responds Henderson forfeited appellate review of this issue because he did not move to bifurcate. Because we agree Henderson forfeited appellate review of this issue under People v. Richardson (2008) 43 Cal.4th 959, 1002, we will address his alternative claim he received ineffective assistance of counsel. We conclude he was not prejudiced.
“In order to establish a violation of the right to effective assistance of counsel, a defendant must show that counsel’s performance was inadequate when measured against the standard of a reasonably competent attorney, and that counsel’s performance prejudiced defendant’s case in such a manner that his representation ‘so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ [Citations.] Moreover, ‘a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.’ [Citation.] Prejudice is shown when there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.] If defendant fails to show that he was prejudiced by counsel’s performance, we may reject his ineffective assistance claim without determining whether counsel’s performance was inadequate. [Citation.]” (People v. Sanchez (1995) 12 Cal.4th 1, 40-41, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390.)
Here, it is not reasonably probable that had Henderson’s defense counsel moved for bifurcation and the trial court granted the motion, the result of the proceeding would have been different. There was overwhelming evidence Henderson participated in the burglary and attempted robbery of Samir. Henderson initially denied any involvement but eventually admitted to police officers being present and driving the vehicle. The only issue was whether he participated voluntarily or whether Christy and Burns forced him to participate at gunpoint. Although Henderson told police officers he did not know what his confederates intended until he stopped at the liquor store and they threatened him, Christy testified Henderson participated voluntarily and he helped choose the location. Christy stated he did not threaten Henderson with bodily harm to force his participation in the offenses. Thus, there was sufficient evidence for the jury to convict Henderson of counts 2 and 3.
Additionally, the jury found not true the street terrorism enhancements as to counts 2 and 3. Although during closing argument defense counsel conceded guilt on counts 2 and 3 to avoid Henderson being convicted of the more serious crimes, had the jury believed the gang expert’s testimony it would have also found true the accompanying street terrorism enhancements. It did not, and Henderson was not prejudiced by his defense counsel’s failure to bring a bifurcation motion.
II. Custody Credits
Henderson argues the trial court miscalculated his custody credits. The Attorney General responds the trial court awarded him the number of credits he now requests, and the issue is moot because Henderson has served his sentence. Henderson replies the Attorney General misreads his claim, and the matter is not moot because it affects his parole eligibility date. The trial court awarded Henderson 1,538 days credit. Based on our calculations, we conclude he is entitled to an additional six days credit for a total of 1,544 days credit (People v. Smith (1989) 211 Cal.App.3d 523, 526). We modify the judgment to reflect he be awarded an additional six days credit.
DISPOSITION
The abstract of judgment is modified to reflect Henderson be awarded an additional six days credit. The clerk of the superior court is ordered to forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation, Division of Adult Operations. We affirm the judgment as modified.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.
Counts 1, 2, 3, 4, and 6 also involved Christy. Counts 5, 7, 8, 9, 10, and 11 only involved Christy.