Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Ct. No. BA279031, Norm Shapiro, Judge. Affirmed.
Koryn & Koryn and Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Susan Sullivan Pithey, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Defendant Dominic D. Hunter appeals from the judgment of conviction of first degree murder (Pen. Code, § 187, subd. (a)) and assault with a deadly weapon with force likely to produce great bodily injury (ADW) (§ 245, subd. (a)(1)). With regard to the murder conviction, he raises issues of evidentiary error, instructional error, and ineffective assistance of counsel. As for the ADW conviction, he contends the upper term was imposed in violation of Cunningham v. California (2007) 549 U.S. 270 (Cunningham). We reject his contentions and affirm the judgment.
All further undesignated statutory references are to the Penal Code.
BACKGROUND
Defendant faced three charges stemming from two separate incidents: (1) the March 6, 2004 shootings of Jermaine Choctaw (count 1; first degree murder (§ 187, subd. (a)) and Bobbie Reed (count 2; attempted murder (§§ 684, 187, subd. (a))); and (2) the October 31, 2005 jailhouse assault on inmate Eric Wright (count 3; attempted murder (§§ 684, 187, subd. (a))). The jailhouse assault alleged in count 3 occurred while defendant was awaiting trial on counts 1 and 2.
Defendant was tried twice. With regard to the jailhouse assault alleged in count 3, the jury in the first trial acquitted him of the attempted murder charge, but convicted him of the lesser included offense of ADW and found true a gang allegation. (§ 186.22, subd. (b)(1)(A).) No verdict was reached on counts 1 and 2, however, for which a mistrial was declared.
Counts 1 and 2 were retried. The second jury convicted defendant on count 1 of the first degree murder of Choctaw, but acquitted him on count 2 of the attempted murder of Reed. The jury found true the firearm and gang allegations in count 1. (§§ 12022.53, subd. (d), 186.22, subd. (b)(1)(A).)
I. The Murder Charge (Count 1)
Viewed in the light most favorable to the judgment, the evidence at the second trial established the following with regard to count 1, the murder of Choctaw. On March 6, 2004, Choctaw, a member of the Swan Bloods gang, was shot and killed. The shooting was committed by the East Coast Crips in retaliation for a shooting committed earlier that day by the Swan Bloods. The murder weapon, which the police recovered, was a Thompson semiautomatic carbine (also referred to as a Tommie gun or Thompson machine gun) that belonged to the East Coast Crips.
The shooting occurred in a laundromat parking lot near 84th Place and San Pedro Street in Los Angeles. Choctaw was standing next to a car and talking to Reed, who was wounded, when the shooting occurred.
At trial, Reed and two other eyewitnesses identified defendant, a member of the East Coast Crips, as the shooter. The other two eyewitnesses were Reed’s sister, who was in the laundromat, and Jazmine B., a 13-year-old who was at a market next to the laundromat.
After the shooting, defendant made incriminating statements that were secretly recorded with the help of an informant, Damond Vaughn, a member of the Eleven-Eight East Coast Crips, who was wearing a wire and transmitter. Defendant made the first incriminating statement at a party on the night of the shooting, when he stated, “Gotta go get the Tommy out in the car, cuz.” Defendant made the second incriminating statement about a month later. Vaughn told defendant that people were saying he had killed “Monster” (Choctaw’s aka). Defendant responded, “I didn’t know the n-----’s name was Monster, cuz. I didn’t know who the n----- was. I just knew he was a sway cat [a derogatory term Crips gang members use to refer to Swan Bloods gang members]. N----- telling me, ‘you killed — you killed Monster, woo woo, woo.’”
Another informant, Claudell Hatter, a member of the East Coast Crips, assisted the police by recovering the Thompson carbine, which testing confirmed was the murder weapon. Hatter, who wore a wire and body camera while recovering the gun, helped record a conversation in which defendant “told Hatter that he shot Choctaw with the Tommie gun, ‘which got off real good.’”
II. The Gang Allegation (Count 1)
During the retrial of count 1, the prosecution sought to introduce evidence of the jailhouse assault on Wright. The evidence was admitted, over defendant’s objection, on the theory that it was relevant to show that the motive for Choctaw’s shooting, like the jailhouse assault, was gang related. Wright, like Choctaw, belonged to the Swan Bloods.
In order to prove that the shooting was gang related, Deputy Sheriff Juan Rodriguez briefly described the jailhouse assault as follows. He testified that he saw Wright emerge from a custody module with a head injury and heard him say that “he had just got jumped.” Rodriguez investigated the incident and noticed that defendant “was short of breath,” “sweating profusely,” and had blood “on his pinky finger.” Rodriguez heard defendant say, “‘That n-----’s my enemy. He’s a Swan. I had to do what I had to do.”
Following Rodriguez’s testimony, the trial court instructed the jury that the testimony could only be considered for the limited purpose of determining the truth of the gang allegation.
III. The Sentence on Counts 1 and 3
The trial court imposed sentence on counts 1 and 3 on September 18, 2007. Defendant received a total sentence of 58 years to life.
On count 1, the trial court imposed a term of 25 years to life for the first degree murder conviction, plus a consecutive term of 25 years to life for the firearm enhancement under section 12022.53, subdivision (d). The trial court struck the gang allegation under section 186.22, subdivision (b)(1).
On count 3, the trial court imposed the upper term of four years for the ADW conviction, citing the increasing seriousness of defendant’s criminal record and the lack of any mitigating factors. The trial court also imposed a consecutive four-year upper term for the gang allegation under section 186.22, subdivision (b)(1).
DISCUSSION
I. The Murder Conviction (Count 1)
A. Evidentiary Error
Defendant contends that the trial court abused its discretion during the retrial of count 1 by admitting evidence of the jailhouse assault, because: (1) the assault was not relevant to prove any fact other than his disposition to commit the offense charged in count 1 (Evid. Code, § 1101, subd. (b)), and (2) the trial court failed to weigh the proper factors in determining whether the probative value of the evidence of the jailhouse assault outweighed its prejudicial effect (Evid. Code, § 352). We disagree.
Evidence Code section 1101 provides in relevant part: “(a) Except as provided in this section and in [Evidence Code] Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.
Under Evidence Code section 1101, subdivision (a), evidence of a defendant’s prior bad acts is inadmissible when it is offered to show his propensity to commit the charged offense. But such evidence may be admitted when it is “relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act.” (Evid. Code, § 1101, subd. (b).)
In this case, the trial court found that the evidence of the jailhouse assault was relevant to show that the motive for both the shooting and the assault was gang related, as indicated by defendant’s statement immediately after the assault, “That n-----’s my enemy. He’s a Swan. I had to do what I had to do.” Accordingly, the trial court admitted the evidence under Evidence Code section 1101, subdivision (b).
The fact that the jailhouse assault occurred after, rather than before, the shooting does not render the evidence inadmissible. (People v. Balcom (1994) 7 Cal.4th 414, 425 [if an uncharged prior offense is relevant, it is admissible whether it was before or after the charged offense]; People v. Garcia (2001) 89 Cal.App.4th 1321, 1335.) In addition, the fact that evidence of the jailhouse assault may have been cumulative does not render it inadmissible, although its cumulative nature is a factor to be considered under Evidence Code section 352. (People v. Gurule (2002) 28 Cal.4th 557, 625.)
As for the trial court’s balancing of the competing factors under Evidence Code section 352, the record does not support defendant’s assertion that the trial court abused its discretion. Rodriguez’s testimony regarding the jailhouse assault was brief, to the point, and less inflammatory than that presented to prove the underlying murder. He said nothing to inflame the jury’s passions or overcome its rationality. Moreover, even assuming the trial court abused its discretion in allowing the evidence, the record fails to show there was any prejudice. The evidence identifying defendant as the shooter—as established by the testimony of three eyewitnesses, defendant’s own taped statements, and the manner in which the murder weapon was recovered—was overwhelming. There is no reasonable probability that a different result would have been reached had the evidence of the jailhouse assault been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.)
B. Instructional Error
Defendant argues that the trial court erred in failing to provide CALJIC No. 3.20, which instructs the jury to view the testimony of informants with caution and close scrutiny. The contention lacks merit.
The jury received CALJIC instructions rather than CALCRIM instructions.
In reviewing issues of instructional error on appeal, we consider whether the trial court “fully and fairly instructed on the applicable law.” (People v. Partlow (1978) 84 Cal.App.3d 540, 558.) “‘In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.’ [Citation.]” (People v. Yoder (1979) 100 Cal.App.3d 333, 338.)
1. The Jury Was Properly Instructed
In this case, the jury was apprised of the gang affiliations, prior felony convictions, and pending criminal cases of both informants, and defendant does not contend otherwise. The jury received CALJIC No. 2.20, which lists among the factors to be considered in determining the credibility of a witness, the “existence or nonexistence of a bias, interest, or other motive,” the “witness’ prior conviction of a felony,” and “[w]hether the witness is testifying in return for future leniency.” Although CALJIC No. 2.20 does not expressly state that the testimony of a convicted felon or informant must be viewed with caution, it nonetheless indicates that the jury should take into account factors such as an informant’s gang affiliations, prior felony convictions, and pending criminal cases when assessing the informant’s credibility as a witness.
The jury also received CALJIC No. 2.13 (prior consistent or inconsistent statements); CALJIC No. 2.21.1 (discrepancies in testimony); CALJIC No. 2.21.2 (witness willfully false); CALJIC No. 2.22 (weighing conflicting testimony); and CALJIC No. 2.23 (believability of a witness — conviction of a felony), which assisted the jury to evaluate any alleged inconsistencies in the informants’ testimony. Viewed as a whole, we conclude the instructions fully and fairly instructed the jury on the applicable law.
2. No Sua Sponte Duty to Provide CALJIC No. 3.20
The trial court had no sua sponte duty to provide CALJIC No. 3.20. (People v. Horning (2004) 34 Cal.4th 871, 909; People v. Turner (1994) 8 Cal.4th 137, 201-202, disapproved on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5; People v. Pensinger (1991) 52 Cal.3d 1210, 1250, fn. 13.) In addition, CALJIC No. 3.20, which refers to in-custody informants, is inapplicable to this case because neither informant was in custody. (People v. Horning, supra, 34 Cal.4th at p. 909.)
Because “we do not view informants’ testimony as inherently unreliable (People v. Alcala [(1984)] 36 Cal.3d 604, 624 [disapproved on another ground in People v. Falsetta (1999) 21 Cal.4th 903, 911]), we reject defendant’s argument that the use of such testimony undermines the reliability of the fact-finding process in violation of the Eighth and Fourteenth Amendments to the United States Constitution.” (People v. Pensinger, supra, 52 Cal.3d at p. 1250, fn. 13.)
We distinguish People v. Guiuan (1998) 18 Cal.4th 558, 569, in which the court held there is a sua sponte duty to provide CALJIC No. 3.18, which states that the incriminating testimony of an accomplice must be viewed with caution. Defendant argues that because CALJIC No. 3.18 must be given sua sponte, CALJIC No. 3.20 must also be given sua sponte because accomplices are analogous to informants. As the Supreme Court explained, however, the motives of accomplices and informants are not the same. An accomplice has an “overwhelming motive to shift blame to defendant. He must do so, either to minimize his own liability at trial, or to convince the authorities it is worth immunizing him to obtain his testimony against the defendant. Whatever consideration a jailhouse informant may expect for testifying, the direct, compelling motive to lie is absent.” (People v. Alcala, supra, 36 Cal.3d at p. 624.)
In light of the evidence and the instructions given in this case, we conclude that defendant has failed to establish the applicability of CALJIC No. 3.20 to this case, the existence of a sua sponte duty to give CALJIC No. 3.20, or that its omission was prejudicial. (People v. Watson, supra, 46 Cal.2d at p. 836.)
C. Ineffective Assistance of Counsel
Defendant contends that his trial counsel was ineffective in failing to request that CALJIC No. 3.20 be given to the jury. We are not persuaded.
“A defendant claiming ineffective assistance of trial counsel has the burden of showing that counsel failed to act in a manner to be expected of reasonably competent counsel, that ‘counsel’s representation fell below an objective standard of reasonableness . . . .’ (Strickland v. Washington (1984) 466 U.S. 668, 688.) Defendant must also show prejudice, that 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.’ (Id. at p. 694; see People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) The appellate court must look to the record to determine whether there is any explanation for counsel’s acts or omissions. When the record is silent on the reason that counsel acted as he or she did[,] ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal.’ (People v. Pope (1979) 23 Cal.3d 412, 426.)” (People v. Pensinger, supra, 52 Cal.3d at p. 1252.)
The record in this case is silent as to the reason that defense counsel acted as he did. Possibly, defense counsel made a tactical decision not to request CALJIC No. 3.20 because neither informant was an in-custody informant. (People v. Horning, supra, 34 Cal.4th at p. 909.) Given that the record is silent as to the reason for counsel’s decision, the contention must fail. (People v. Pensinger, supra, 52 Cal.3d at p. 1252.) Moreover, given our conclusion that the jury was fully and fairly instructed on the applicable law, any alleged error by counsel was harmless.
II. The Sentence on Count 3
Defendant contends that the trial court violated Cunningham, supra, 549 U.S. 270, by imposing two consecutive four-year upper terms on count 3 for the assault conviction and gang enhancement. The contention lacks merit.
Cunningham held that California’s sentencing law violated the Sixth Amendment by allowing the trial court to impose sentence in reliance on factors not found true by a jury. In response to Cunningham, the California Legislature in 2007 amended section 1170, subdivision (b) by deleting language that required the middle term to be imposed in the absence of aggravating or mitigating circumstances. (Stats. 2007, ch. 3.) As amended, section 1170, subdivision (b) states that “[w]hen a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court,” which shall select the term that, “in the court’s discretion, best serves the interests of justice.”
The trial court imposed sentence on September 18, 2007, well after the March 30, 2007 effective date of the 2007 amendment. (Stats. 2007, ch. 3.) The trial court stated that “under current law,” it was authorized to “take into consideration . . . those factors that [were] urged by the District Attorney and [that it would] take [them] into consideration.” It explained that it was imposing “the high terms for reasons stated by the District Attorney, four years on count 3 and an additional four years on the gang allegations, . . . for a total of eight” years.
The prosecutor argued to impose the upper term because of the increasing seriousness of defendant’s criminal record, the lack of any excuse for the offenses committed, the lack of any mental state that would negate responsibility for the crimes, and the lack of mitigating factors.
Contrary to defendant’s assertion that the trial court did not address the applicability of the amended version of the statute, the transcript shows that the trial court was aware of the 2007 amendment, which it described as the “current law,” and stated that it would apply the “current law,” subject to being reversed on appeal if the “current law” did not apply to crimes committed before the effective date of the amendment.
Given that sentence was imposed under the amended version of section 1170, subdivision (b), defendant’s contention that the trial court violated Cunningham lacks merit.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., WILLHITE, J.
“(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.”