Opinion
E073432
12-09-2020
THE PEOPLE, Plaintiff and Respondent, v. JOE ANTHONY JORDAN, Defendant and Appellant.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FWV17002957) OPINION APPEAL from the Superior Court of San Bernardino County. Katrina West, Judge. Affirmed. Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.
I.
BACKGROUND
Defendant and appellant, Joe Jordan, was with fellow gang members, Joseph Bates and Daniel Aguilar, in a nightclub's parking lot. Bates began talking to a woman in a BMW. Raymond Watts was nearby and talking to a friend of the woman in the BMW. Bates asked Watts where he was from. Watts said he was from north Pomona. Bates said that he was also from Pomona and showed Watts the "P" (for Pomona) tattoo on his forearm. Watts understood that Bates was telling him that he was in a gang.
Watts briefly walked away. When he came back, he saw Bates holding a gun and standing next to defendant and Aguilar. Bates told Watts, "'[t]ell your boy from Baltimore to calm down.'" Watt's friend, Brian King, was from Baltimore and was talking to the woman in the BMW.
Watts tried talking to the Bates, Aguilar, and defendant. One of them responded, "'Blood, we don't even know you like that. Blood, back up.'" Bates handed the gun to Aguilar, who handed it to defendant. Bates approached King and became aggressive, and they began arguing. While they were arguing, defendant shot King multiple times, killing him.
A jury convicted defendant of first-degree murder (Pen. Code, § 187, subd. (a); count 1), active participation in a criminal street gang (street terrorism) (§ 186.22, subd. (a); count 2), and unlawful possession of a firearm (§ 29800, subd. (a)(1); count 3). The jury found defendant personally and intentionally discharged a firearm resulting in death (§ 12022.53, subd. (d)), and that he committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)). The trial court found true that defendant had suffered two prior prison terms (§ 667.5, subd. (b)), two prior felony strike convictions (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), and two prior serious felony convictions (§ 667 (a)(1)). The trial court sentenced defendant to an indeterminate term of 125 years to life, plus a determinate term of 20 years.
Unless otherwise indicated, all further statutory references are to the Penal Code. --------
On appeal, defendant contends (1) the trial court erroneously instructed the jury with CALCRIM No. 315, (2) insufficient evidence supports the jury's street terrorism verdict and true finding on the gang enhancement, (3) the trial court was unaware of its discretion to strike his prior serious felony convictions, (4) the trial court erroneously imposed various fines and fees without holding a hearing on whether defendant could pay them, and (5) his trial counsel was ineffective for failing to object to the fines and fees. We reject defendant's contentions and affirm the judgment.
II.
DISCUSSION
A. The Trial Court Properly Instructed the Jury With CALCRIM No. 315
The trial court instructed the jury with CALCRIM No. 315, which directed the jury to consider a number of questions to evaluate an eye witness's testimony, including "'[h]ow certain was the witness when he or she made an identification?'" Defendant contends this particular question is erroneous because it impermissibly allows juries to equate an eye witness's certainty with the witness's accuracy.
The People assert defendant forfeited the argument by failing to object to CALCRIM No. 315 below. We agree. (See People v. Sanchez (2016) 63 Cal.4th 411, 461-462 [defendant forfeited argument that instruction improperly directed jurors to consider eye witness's certainty by failing to object to it in the trial court]; accord, People v. Rodriguez (2019) 40 Cal.App.5th 194, 199-200 ["Rodriguez argues CALCRIM No. 315 violates his Fourteenth Amendment due process rights because it tells the jury to consider eyewitness certainty. Rodriguez's counsel did not object at trial. This is forfeiture."].)
Even if defendant did not forfeit the argument, it fails on the merits. We note that the precise issue of whether CALCRIM No. 315 properly instructs the jury to consider a witness's certainty is currently pending before our Supreme Court. (See People v. Lemcke (June 21, 2018, G054241) 2018 WL 3062234, review granted Oct. 10, 2018, S250108.) We are bound, however, by our Supreme Court's decisions in People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232, and People v. Sanchez, supra, 63 Cal.4th at page 462, which held that jury instructions allowing the jury to consider a witness's certainty are proper. (Auto Equity Sales, Inc. v. Superior Court (1962) 450, 455.) In light of those decisions, we reject defendant's argument that the trial court erroneously instructed the jury with CALCRIM No. 315.
B. Substantial Evidence Supports the Jury's Street-Terrorism Verdict and True Finding on the Gang Enhancement
Defendant contends there was insufficient evidence for the jury to convict him on count 2 (street terrorism) and to find the gang enhancement true. He claims there was not substantial evidence that he committed the murder for the benefit of, at the direction of, or in association with any criminal street gang. We disagree.
1. Standard of Review
"When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] . . . We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility." (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
"'Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.'" (People v. Thomas (1992) 2 Cal.4th 489, 514.) We may reverse a conviction for a lack of substantial evidence only if it appears "'"that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]."'" (People v. Cravens (2012) 53 Cal.4th 500, 508.)
2. Analysis
Section 186.22, subdivision (a) criminalizes active participation in a criminal street gang, an offense that is also known as "street terrorism." Street terrorism has three elements. "First, active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; second, knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and third, the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang." (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130.)
Defendant does not dispute that the first two elements were satisfied here, but he argues that there was insufficient evidence on the third element.
Viewing the record in the light in the most favorable to the judgment, we conclude there is substantial evidence that defendant assisted fellow gang members Bates and Aguilar in murdering King. Bates brandished the gun and gave it to Aguilar, who gave it to defendant. When Watts appeared concerned about the gun, defendant told him to calm down. Then, when Bates began acting aggressively toward King, defendant shot and killed King while he was arguing with Bates. On this record, the jury could reasonably find that defendant willfully helped fellow his fellow gang members kill King. The jury did not have to find that the murder was gang-related to convict defendant of street terrorism, as he suggests. (People v. Rodriguez, supra, 55 Cal.4th at p. 1133 ["[T]he felonious conduct that is willfully promoted, furthered, or assisted need not be gang related."].)
Similarly, to find the gang allegation true, the jury had to find that defendant committed a felony "for the benefit of, at the direction of, or in association with any criminal street gang" and (2) "with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1), italics added.)
As to the first element, it "may be established with substantial evidence that two or more gang members committed the crime together, unless there is evidence that they were 'on a frolic and detour unrelated to the gang.'" (People v. Weddington (2016) 246 Cal.App.4th 468, 484.) Thus, "the typical close case is one in which one gang member, acting alone, commits a crime." (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.)
Here, there was substantial evidence from which the jury could reasonably find that defendant, Aguilar, and Bates "committed the underlying offenses as gang members acting in association, thus satisfying the" first element of the gang enhancement. (People v. Weddington, supra, 246 Cal.App.4th at pp. 484-485.) Bates, Aguilar, and defendant were members of the same gang. Bates gave Aguilar the gun, and Aguilar handed it to defendant. While Bates aggressively confronted and argued with King, defendant shot King repeatedly. Based on this evidence, the jury could rationally find that defendant committed the offenses "in association with" his fellow gang members, Bates and Aguilar. (See People v. Morales, supra, 112 Cal.App.4th at p. 1198 ["[T]he jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members."].)
Based on the same evidence, the jury could rationally find that defendant acted "'with the specific intent to promote, further, or assist in any criminal conduct by gang members.'" Defendant incorrectly argues that the underlying offense must be gang-related. "[T]he scienter requirement in section 186.22(b)(1)—i.e., 'the specific intent to promote, further, or assist in any criminal conduct by gang members'—is unambiguous and applies to any criminal conduct." (People v. Albillar (2010) 51 Cal.4th 47, 66.) As we explained, defendant took the gun from Aguilar, who took it from Bates. Bates confronted King and acted aggressively toward him. While King was arguing with Bates, defendant shot King multiple times. This evidence was sufficient for the jury to reasonably infer that defendant specifically intended to "promote, further, or assist" Bates in killing King. (See id. at p. 68 ["[I]f substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members."].)
In sum, substantial evidence supports the jury's verdict on the street terrorism charge (count 2) and the jury's true finding on the gang enhancement.
C. Sentencing Discretion
When sentencing defendant, the trial court declined to strike defendant's four prior serious felony convictions. The trial court expressly recognized its discretion to strike the firearm enhancements, but did not mention its authority to strike the prior serious felonies. Defendant argues that the trial court did not know it could strike the convictions, so we must remand the case to allow the trial court to decide whether to strike them.
We disagree. "[R]emand is unnecessary if the record is silent concerning whether the trial court misunderstood its sentencing discretion." (People v. Brown (2007) 147 Cal.App.4th 1213, 1229.) The record is silent here. As defendant acknowledges, the trial court did not mention its discretion to strike defendant's prior serious felony convictions. As a result, we need not remand defendant's case. (Ibid.)
D. Fine and fees
As part of its sentence, the trial court imposed a $10,000 restitution fine (§ 1202.4, subd. (b)), a $30 court construction fee (Gov. Code § 70373, subd. (a)(1)), a $40 court operations fee per count (§ 1465.8, subd. (a)(1)), and a $727 presentence-report fee. Defendant did not object to the fine or fees. Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157—which was decided before his sentencing—he now claims the trial erred because it did not sua sponte hold a hearing to determine whether defendant could pay the fine and fees before imposing them.
By failing to object to the fine or fees and failing to request a hearing on his ability to pay them, defendant forfeited any Dueñas objection. (See People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1030; accord, People v. Lowery (2020) 43 Cal.App.5th 1046, 1054; People v. Aviles (2019) 39 Cal.App.5th 1055, 107; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153.) His "failure to challenge the fees in the trial court precludes him from doing so on appeal." (People v. Aguilar (2015) 60 Cal.4th 862, 864.)
Defendant alternatively argues we may address his challenge to the fine and fees because his trial counsel was ineffective for failing to object to them and for failing to request an ability-to-pay hearing. We exercise our discretion to address the issue on the merits "to avert any claim of inadequate assistance of counsel." (People v. Yarbrough (2008) 169 Cal.App.4th 303, 310.)
To establish ineffective assistance of counsel, "the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (People v. Mai (2013) 57 Cal.4th 986, 1009.) On direct appeal, ineffective assistance is established "only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (Ibid.) "[R]arely will an appellate record establish ineffective assistance of counsel." (People v. Thompson (2010) 49 Cal.4th 79, 122.) If the record sheds no light on counsel's actions, the claim must be rejected unless no satisfactory explanation exists or counsel was asked for an explanation and failed to provide one. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) We will not find ineffective assistance of counsel "unless there could be no conceivable reason for counsel's acts or omissions." (People v. Weaver (2001) 26 Cal.4th 876, 926.)
The record is silent as to why defendant's counsel did not object to the fine and fees However, it is conceivable defendant's attorney decided not to object for reasons unrelated to his ability to pay. A defendant's inability to pay is just one among many factors the court should consider in setting the restitution fine above the minimum. The court should also consider "the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered losses as a result of the crime, and the number of victims involved in the crime. Those losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses, such as psychological harm caused by the crime." (§ 1202.4, subd. (d).) Defendant's attorney may have concluded that, given the seriousness of his offenses and the psychological harm to King and his family, any objection to the maximum restitution fine would have been fruitless.
As to the other fees, we reach the same conclusion. "[A] defense counsel's decision whether to object to the imposition of fines and fees can encompass factors beyond a defendant's financial circumstances, especially in serious cases involving potentially long prison sentences. . . . We cannot speculate, given the absence of information before us, what led to defense counsel's decision not to object, but a myopic focus on [defendant's] financial circumstances that neglects any of the other factors at play in a sentencing hearing may not provide an accurate picture of counsel's strategic calculus." (People v. Acosta (2018) 28 Cal.App.5th 701, 707.) Because "[w]e have no idea why counsel did not raise the ability to pay issue," and because "[w]e have no idea whether the fine[] . . . or [fees] were of any consequence," we conclude defendant's ineffective assistance of counsel claim should be addressed through a petition for habeas corpus, not on direct appeal. (People v. Keene (2019) 43 Cal.App.5th 861, 864-865.)
IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: SLOUGH
J. FIELDS
J.