Opinion
F084630 F084896
04-17-2024
THE PEOPLE, Plaintiff and Respondent, v. LEONARD LUSTER et al., Defendants and Appellants
Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant Leonard Luster. Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant Thyshawn Thompson. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Robert C. Nash, Darren K. Indermill and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F21904713. Jonathan B. Conklin, Judge.
Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant Leonard Luster.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant Thyshawn Thompson.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Robert C. Nash, Darren K. Indermill and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MEEHAN, J.
INTRODUCTION
This consolidated appeal follows from the convictions of codefendants and coappellants Leonard Luster and Thyshawn Thompson for murder and attempted murder committed by drive-by shooting in September 2020. Luster, who was the driver, and Thompson, who was the shooter, were detained within an hour of the shooting and later charged with the crimes. A jury convicted them each of one count of first degree murderand one count of attempted murder, and on both counts, the jury found that Thompson personally and intentionally discharged a firearm causing death or great bodily injury (GBI). (Pen. Code, §§ 187, subd. (a)/189/664, 12022.53, subd. (d).)
The prosecutor proceeded on the theory that the murder was both willful, deliberate and premeditated, and perpetrated by means of discharging a firearm from a motor vehicle. (§ 189, subd. (a).)
All further statutory references are to the Penal Code unless otherwise specified.
In a bifurcated proceeding, the trial court found that Luster and Thompson each had one prior serious or violent felony conviction within the meaning of the "Three Strikes" law. (§§ 667, subds. (a)(1), (b)-(i), 1170.12, subds. (a)-(d).)
Luster and Thompson were each sentenced to the lower term of five years, doubled to 10 years, for attempted murder and to a consecutive indeterminate term of 25 years to life, doubled to 50 years, for first degree murder. On each count, Thompson was sentenced to a consecutive term of 25 years to life for the firearm enhancement.
On appeal, Luster claims an instructional error and both Luster and Thompson claim sentencing errors. Relying on the appellate decision in Powell, Luster argues that CALCRIM No. 401, the pattern jury instruction for aiding and abetting, permitted the jury to convict him of first degree murder and attempted murder without finding he acted with malice, and that the error is prejudicial under Chapman, requiring reversal of his convictions. Although Luster and Thompson were sentenced in July 2022, both claim entitlement to resentencing under section 1385 as amended by Senate Bill No. 81, effective January 1, 2022, on the ground that section 1385, subdivision (c), applies to prior convictions. Thompson further argues that the trial court abused its discretion by, one, failing to give great weight to mitigating factors and make an express finding of endangerment to public safety under section 1385, subdivision (c), and, two, failing to substitute a lesser firearm enhancement in lieu of the section 12022.53, subdivision (d), enhancement, pursuant to People v. Tirado (2022) 12 Cal.5th 688, 700 (Tirado)).
People v. Powell (2021) 63 Cal.App.5th 689, 714 (Powell).
Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).
Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill 81).
The People raise forfeiture based on Luster's and Thompson's failure to object to the errors now raised on appeal, and they contend no relief is due on the merits of Luster's and Thompson's claims.
We reject Luster's claim that CALCRIM No. 401 permitted the jury to convict him based on imputed malice, and we reject Luster's and Thompson's claim that their prior strike convictions qualify as enhancements within the meaning of section 1385, subdivision (c). With respect to Thompson's remaining claims of sentencing error, we find that he forfeited those claims by failing to object on the grounds now raised on appeal and, relatedly, that trial counsel did not render ineffective assistance of counsel (IAC) by failing to raise those issues. Finally, on our own motion, we order Luster's and Thompson's judgments modified to reflect imposition of a statutory minimum restitution fine under section 1202.4, subdivision (b)(1), in the amount of $300 rather than $200, and a parole revocation restitution fine under section 1202.45, subdivision (a), in the amount of $300 rather than $200, suspended. (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.)
We provided the parties notice of the issue and the opportunity to file supplemental letter briefs. (Gov. Code, § 68081.) The People agree the trial court erred and the error is subject to correction on review. Thompson, joined by Luster, argues that the sentence was not unauthorized, and the People forfeited any objection by failing to raise the issue in the trial court, positions we do not find meritorious on this record.
Except as modified, we affirm the judgments.
FACTUAL SUMMARY
I. The Shooting
At approximately 12:30 p.m. on September 16, 2020, victims Demarko W. and Arthur T. were in a dirt lot on the corner of McKinley and Normal Avenues, across the street from a market. Video surveillance footage from the market showed a red Hyundai sport utility vehicle (SUV) turn onto northbound Normal from eastbound McKinley at 12:30 p.m. The SUV had chrome rims and a white rear plate with something white on the dashboard. The driver appeared to be a Black male wearing a white- or light-colored shirt. The front passenger also appeared to be a Black male, and his head and right arm, holding what appeared to be a handgun, extended out of the passenger window. Multiple shots rang out, killing Demarko and wounding Arthur, and the SUV sped off. Arthur, who was shot in the back and arm, told responding police that he did not see who shot him and did not know why he was shot.
II. Timeline of Events
The main issue in this case was the identity of those involved in the shooting. The prosecution pieced together a timeline of events based on Facebook messages and phone calls between cell phones linked to Luster and Thompson, video footage from multiple surveillance cameras tracking the red Hyundai's movement before and after the shooting, and cell phone tower evidence showing the locations of Luster's and Thompson's phones.
Seven days before the shooting, Luster and Thompson exchanged some messages through Facebook Messenger. Luster said, "Ntried to off me," and Thompson responded, "Bra I heard. Wht uk tryina do?" Luster replied, "You know." The next day, Luster messaged Thompson, "Just empty him," which an officer testified meant empty ammunition from a firearm.
The Facebook accounts, which were connected to Luster, whose nickname was Nook, and Thompson, were under the names HB Nook Ross and Shawn Thomas. The message from Luster contained a racial epithet, which we omit.
Three days before the shooting, Thompson messaged Luster, "Uk got an extra pole4?" Luster responded, "I'm a look," and then, "I do but I'm not sailing." Thompson said, "Bra let use it a couple days," and Luster agreed, "Yep after I get it from the homie." Thompson then messaged, "Yupk 4sho bra," and Luster responded, "Yep need another." Thompson told Luster, "Lmk," meaning let me know, and Luster said, "Yep." Thompson then messaged Luster, "Bra if we get somebody 1 4 a choppa." After a missed call from Luster to Thompson, Luster messaged Thompson, "I'll trade." Thompson replied, "He want 2 sail it." Luster asked how much and Thompson said, "But we can take it tho," before responding, "1500." During testimony about these messages, an officer explained that both "pole" and "choppa" are slang terms used for firearms, with choppa more specific to an automatic firearm.
On the day of the shooting, Luster's girlfriend, R.C., was staying at a motel on Parkway Drive with her mother, L.C. Although Luster did not live with them, he and R.C. shared a recently purchased red, 2014, four-door Hyundai Tucson SUV. The Tucson had a temporary paper plate on the rear, a temporary paper plate on the dashboard, and temporary registration taped to the windshield on the passenger side. The rear windows had a dark tint and the vehicle had chrome "star" rims, with 15 spokes on each rim.
That morning, Luster called L.C. for a ride. She picked him up in her burgundy Mercedes SUV and brought him back to the motel. She then left again. Video surveillance footage showed they arrived at the motel at 11:37 a.m., just after Thompson's phone messaged Luster's phone, "Whts good bra?" Five minutes later, Luster drove off in the Tucson.
Approximately 30 minutes later, there was an outgoing call from Thompson's phone to Luster's phone, which lasted 53 seconds. Subsequently, there was a 21-second outgoing call from Luster's phone to Thompson's phone, and a missed call from Luster's phone to Thompson's phone.
Records reflected that between 8:30 a.m. and 8:50 a.m., Thompson's phone traveled from the area of Highway 99 and Jensen Avenue to Courthouse Park in downtown Fresno, and he later told police he had court that day, arriving at around 8:30 a.m. and breaking for lunch at 12:00 or 12:30 p.m. Thompson's phone remained in the area of Courthouse Park all morning, and at 12:07 p.m., surveillance video showed a Black male wearing an oversized black T-shirt and blue jeans, identified as Thompson, walking down the ramp from the courthouse. At 12:08 p.m., Thompson was outside the courthouse on the phone, consistent with the timing of the 53-second Facebook Messenger phone call between Thompson's and Luster's phones. Thompson bought some food from a vendor and sat on a bench, consistent with his statement that he bought a hot dog and a soda before being picked up by a friend.
At 12:18 p.m., Thompson got up from the bench and appeared to be on the phone, consistent with the 21-second call between Thompson's and Luster's phones. Thompson walked in the direction of Fulton Street. At the same time, video footage showed a red vehicle driving on Fulton. At 12:21 p.m., there was a missed call from Luster's phone to Thompson's phone and, within seconds, video footage showed an individual in a black shirt walking in the direction of a red vehicle. The sideview mirror on the passenger side of the red vehicle appeared to move, consistent with the passenger door being opened, and the red vehicle then drove off.
Between 12:21 and 12:23 p.m., the red vehicle was tracked by surveillance camera moving along Fulton to Fresno Street and then heading easterly in the direction of Divisadero Street and Highway 41. Seven minutes later, at 12:30 p.m., the red vehicle entered the left turn lane from eastbound McKinley to northbound Normal. There were no other vehicles in the turn lane, but the red vehicle stopped two to three car lengths back. After the red vehicle turned onto Normal, the front passenger's head and right arm were visible outside the window and the passenger's arm was extended in the direction of the dirt lot where Demarko and Arthur were, with what appeared to be a handgun in hand. Within seconds of the vehicle passing, dogs scattered and people were seen exiting buildings, running, and holding cell phones. The red vehicle continued north on Normal, which curves around and connects with First Street. An eyewitness heard shots fired and when she looked out her window, she saw a red compact vehicle driving fast up Normal, away from the market.
Based on surveillance camera footage and other evidence, a detective testified he was "confident" of the most likely route of travel between where the red vehicle was last seen on camera on Fresno Street and where the shooting took place seven minutes later. He traveled that route multiple times during the work week around the noon hour and depending on traffic and stoplight timing, the drive took between six and nine minutes.
At 12:31 p.m., the red vehicle was picked up on surveillance cameras traveling north on First Street, north of the crime scene and south of Clinton Avenue. The vehicle then cut across two lanes of traffic on First and turned onto eastbound Clinton. At 12:32 p.m., the red vehicle turned southbound on Cedar Avenue, where there was an onramp to Highway 180.
At 12:39 p.m., R.C.'s red Hyundai returned to the motel on Parkway Drive.Luster exited the vehicle and went to R.C.'s room. His right shorts pocket appeared to bulge from something with weight to it. Luster returned to the Tucson and left at 12:45 p.m., at which time there was no visible bulge to his shorts pocket. R.C. saw someone sitting in the passenger seat, and the lap of someone wearing jeans consistent with those worn by Thompson was visible on surveillance camera footage.
The detective also traveled what he thought was the most likely route between the last vehicle sighting at Clinton and Cedar and the motel on Parkway Drive, which included taking Highway 180 and then Highway 99. Depending on traffic and stoplight timing, the drive took between seven and 11 minutes.
Between 12:47 p.m. and 12:50 p.m., Luster pulled into a liquor store, went inside, made a purchase, returned to the Tucson, and left. While he was inside the liquor store, Luster gestured with his hands in a manner consistent with mimicking firing a handgun. At 12:53 p.m., the Tucson was on Parkway Drive heading toward Olive Avenue.
Following the shooting, law enforcement was initially looking for a black SUV. Officer Williams stopped a vehicle matching that description at Olive and Fulton, and Officer Lyon stopped to assist. While the officers were with the black SUV, a broadcast message went out updating the suspect vehicle description to a red Hyundai Tucson. Officer Lyon spotted a red Hyundai Tucson driving eastbound on Olive Avenue and he returned to his patrol vehicle to follow it. A nearby undercover officer and Officer Williams began following the Tucson shortly thereafter, and the Tucson remained in the sight of at least one of the three officers at all times until Officer Lyon effected a traffic stop at approximately 1:19 p.m., after the Tucson turned onto Effie Street from Fresno Street. Luster was driving and Thompson was in the front passenger seat.
Two of the officers who followed the Tucson heard a Mercedes honking repeatedly at the Tucson as it turned on Effie Street, consistent with R.C.'s and L.C.'s testimony that after Luster left the motel, they went to get food in L.C.'s Mercedes SUV. While driving, they saw the Tucson with someone else in it and R.C. was suspicious Luster was with another woman, so they followed the Tucson and L.C. honked her horn until Luster pulled over on Effie. Right after R.C. saw the passenger was a man and the two left, Officer Lyon pulled the Tucson over. R.C. and L.C. returned to the scene after seeing the vehicle pulled over and R.C. identified it as hers.
R.C. did not get a good look at the man, but she testified she did not know Thompson.
Luster had a lighter complexion and was wearing a white shirt with a gold cross design on the front and light shorts, consistent with surveillance video footage showing the driver of the red vehicle in a white or light shirt. Thompson had a darker complexion and was wearing a black T-shirt and blue jeans, also consistent with surveillance video footage.
III. Other Evidence A. Thompson's Statement and Jail Call
In his statement to police on the day of the shooting, Thompson denied knowing Luster and said Luster was a friend of a friend. He stated he was dropped off at the courthouse at 8:30 in the morning and a friend he declined to identify but said was not Luster picked him up during the noon break in proceedings. Thompson also denied he was in a red car near the market on McKinley or was anywhere near that area.
Later that night, Thompson made a phone call from jail to a phone number saved in his cell phone contacts as "Baby J." Thompson told the female who answered, whom he referred to as "babe," to disconnect his phone in the morning. His cell phone was disconnected the next day.
B. R.C.'s Statement
R.C. testified Luster was arrested and then released. Approximately seven months after the shooting, R.C. had a conversation with law enforcement during which she told a police sergeant, "On Normal. He shot that boy. He went to jail for it. They let him out," and "Yeah. He went to jail for it. They took my car and he went to jail for it, they let him out. He told me he did it." At trial, R.C. denied making the statement and denied Luster told her he was involved in a shooting on Normal. She said it was the four-year anniversary of her brother's death and although she usually did not drink, she was under the influence of alcohol that night. She also said she "was just talking shit" because she was angry at Luster. However, jurors viewed the body camera footage of her statement.
C. Cell Phones
After Luster and Thompson were detained on Effie Street, officers recovered one iPhone from the driver's seat still plugged into a charger, a second iPhone from a purse located in the backseat, and one Samsung phone from the curb just outside the passenger door of the Tucson. Evidence connected the iPhone in the front seat to Luster and the Samsung phone on the curb to Thompson.
A crime analyst for the prosecution testified to the locations of the two target phone numbers connected to Luster and Thompson before and after the shooting, based on the phones' connections to cell phone towers. In addition to testimony that Thompson's cell phone was in the Courthouse Park area all morning, Thompson's phone location moved toward Fulton Street and from Fulton to Fresno Street, consistent with the prosecution's theory that Luster picked Thompson up on Fulton Street and then drove down Fresno Street. At 12:24 p.m., an outgoing phone call connected to a tower near Tulare Street and First Street, and at 12:31 p.m., the phone was located in the area of Clinton Avenue and First Street, in a cell tower sector that included the market at McKinley and Normal Avenues. At 12:35 p.m., Thompson's phone was in the area of Olive Avenue and First Street, and between 12:38 and 12:51 p.m., the phone was in the area of Highway 99 and Belmont Avenue, in a sector that included the motel on Parkway Drive. Between 1:00 and 1:30 p.m., Thompson's phone connected to numerous towers, indicating movement, and, consistent with the prosecution's postshooting timeline, the sectors included Olive Avenue and then Effie Street, where Officer Lyon effected the traffic stop of the Hyundai.
At 12:27 p.m., Luster's phone also connected to a cell tower with a sector that encompassed the market at McKinley and Normal Avenues. At 1:18 p.m., Luster's phone connected to towers with sectors covering Effie Street in the area where Officer Lyon stopped the Hyundai.
D. Shell Casings
No firearms were located in the vehicle or in R.C,'s motel room, but officers recovered 6 nine-millimeter shell casings at the scene of the shooting.
R.C. checked out of the motel the day after the shooting, prior to law enforcement's awareness of any connection between Luster and the motel room.
E. Gunshot Residue
No gunshot residue (GSR) was detected in the samples taken from Luster's and Thompson's hands or in the samples taken from the two interior door panels on the passenger side of the Tucson. Two particles characteristic of GSR were found on the front left sleeve of Luster's shirt. Four particles characteristic of GSR and one particle consistent with GSR were found on the right sleeve and front of Thompson's shirt, and two particles characteristic of GSR and two particles consistent with GSR were found on the black and gold patterned facemask that was consistent with the facemask Thompson was seen wearing on surveillance footage.
The criminalist who testified explained that in testing for GSR, they look for particles containing lead, barium, and antimony, and, if located, the particles are characteristic of GSR. If any particles contain two of the three elements, they are considered consistent with GSR.
The criminalist testified that three or fewer particles consistent with GSR was considered a low-level sample that could be attributable to transfer from one source to another, while the likelihood the GSR resulted from transfer was less likely if four or more particles were detected. She also testified that detecting particles on the right sleeve and front of a shirt but none on the door panel would be consistent with firing a gun out a window, as particles were less likely to land on an interior door panel than if the weapon was fired from inside the vehicle.
DISCUSSION
I. Instructional Error Claim
A. Forfeiture
Relying primarily on the Court of Appeal's decision in Powell, Luster claims that CALCRIM No. 401 on aiding and abetting permitted the jury to convict him of first degree murder and attempted murder without a finding of malice. (Powell, supra, 63 Cal.App.5th at p. 714.) The People argue first that Luster forfeited his claim by failing to object in the trial court and, alternatively, that his claim fails on the merits.
The "failure to object to instructional error will not result in forfeiture if the substantial rights of the defendant are affected." (People v. Mitchell (2019) 7 Cal.5th 561, 579.) Although we conclude that Luster's claim lacks merit for the reasons discussed next, the essence of his claim is that the jury was misinstructed as to an element of the offenses. If meritorious, such a claim would affect his substantial rights. Therefore, we reach the merits of his claim, notwithstanding his failure to object.
B. Standard of Review
We review allegations of instructional error de novo. (People v. Waidla (2000) 22 Cal.4th 690, 733; People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) "[Instructions are not considered in isolation. Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury" (People v. Holt (1997) 15 Cal.4th 619, 677; accord, People v. Lemcke (2021) 11 Cal.5th 644, 655 (Lemcke)), and jurors are presumed to have understood and followed the trial court's jury instructions (People v. Thomas (2023) 14 Cal.5th 327, 382 (Thomas); People v. Sandoval (2015) 62 Cal.4th 394, 422).
Generally, we evaluate claims of instructional error under Watson, which provides that "'an error [under state law is] harmless unless it is "reasonably probable" the outcome would have been different in the absence of the error. [Citation.] As a general matter, this test applies to "'"incorrect, ambiguous, conflicting, or wrongly omitted instructions that do not amount to federal constitutional error."'"'" (People v. Schuller (2023) 15 Cal.5th 237, 251.) However, we evaluate errors of federal constitutional magnitude under Chapman, which "'requires reversal unless the error is "harmless beyond a reasonable doubt."'" (Schuller, supra, at p. 251.) As Luster argues, "Chapman review applies to instructional errors that 'misdescribe[]' [citation] an element of the charged offense or are otherwise 'incomplete and misleading' [citation] with respect to the findings necessary to prove an element of the offense. [Citation.] The key inquiry is whether the instruction operated to 'preclude[] the jury from making a finding' [citation] on any fact necessary to establish an element of the offense." (Ibid.)
People v. Watson (1956) 46 Cal.2d 818 (Watson).
C. Instructional Error: Imputing Malice to Aider and Abettor
"The mental state required for the crime of murder is the existence of malice, which may be either express or implied." (People v. Mumin (2023) 15 Cal.5th 176, 190.) "Malice is express when a defendant intends to kill and implied when a defendant consciously disregards danger to human life." (In re Ferrell (2023) 14 Cal.5th 593, 600.) "Because malice may be implied, second degree murder does not require a specific intent to kill." (Mumin, supra, at p. 190.) "[A]ttemptedmurder[, in contrast,] requires a specific intent to kill." (Ibid.)
"Aider and abettor liability is premised on the combined acts of all the principals, but on the aider and abettor's own mens rea." (People v. McCoy (2001) 25 Cal.4th 1111, 1120.) "'To prove that a defendant is an accomplice . . . the prosecution must show that the defendant acted "with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense." ([People v. Beeman (1984) 35 Cal.3d 547,] 560, italics in original.) When the offense charged is a specific intent crime, the accomplice must "share the specific intent of the perpetrator"; this occurs when the accomplice "knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime." (Ibid.)' (People v. Prettyman [(1996)] 14 Cal.4th [248,] 259.)" (Id. at p. 1118, fn. omitted.)
Recently, a line of cases recognized an instructional ambiguity in the context of directly aiding and abetting implied malice murder. (Powell, supra, 63 Cal.App.5th at p. 714; People v. Langi (2022) 73 Cal.App.5th 972, 982 (Langi); People v. Maldonado (2023) 87 Cal.App.5th 1257, 1265 (Maldonado).) Powell, a direct appeal case, concluded that the ambiguity was harmless beyond a reasonable doubt (Powell, supra, at p. 718), and Langi and Maldonado, appeals from resentencing petitions under section 1172.6, both concluded the trial court erred in denying the petition for relief at the prima facie stage because the jury instructions left open the possibility that the defendant was convicted of directly aiding and abetting murder without finding he personally acted with malice; that is, based on imputed malice (Langi, supra, at p. 984; Maldonado, supra, at p. 1269). Relying on Powell, Luster claims that the trial court's instruction with CALCRIM No. 401, a pattern instruction on aiding and abetting, failed to properly explain intentional murder, implied malice murder, or attempted murder, and the error is prejudicial under Chapman, necessitating reversal of his convictions. Before reaching Luster's claimed error, we summarize the error as recognized in Powell, Langi, and Maldonado.
Powell explained, "The reason why there is a dearth of decisional law on aiding and abetting implied malice murder may be the heretofore availability of the natural and probable consequences doctrine for second degree murder, which was easier to prove. While, like implied malice, part of the analysis is based on the natural and probable consequences of an act, the natural and probable consequences doctrine did not require that the aider and abettor intend to aid the perpetrator in committing a life endangering act; it only required the aider and abettor to intend to aid the perpetrator in committing a specific target offense, the natural and probable consequences of which offense was a nontarget crime. What was natural and probable was judged by an objective standard and it was enough that murder was a reasonably foreseeable consequence of the crime aided and abetted." (Powell, supra, 63 Cal.App.5th at p. 711, fn. 26.)
Pursuant to section 1172.6, subject to certain qualifying circumstances, "A person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter may file a petition with the court that sentenced the petitioner to have the petitioner's murder, attempted murder, or manslaughter conviction vacated and to be resentenced on any remaining counts ..." (§ 1172.6, subd. (a), italics added.)
1. Powell
In Powell, four individuals entered a home in the middle of the night to exact revenge for an earlier altercation. (Powell, supra, 63 Cal.App.5th at pp. 691-692.) Two or three of the individuals beat the victim, who was asleep on the couch, and he died from a stab wound to the heart. (Id. at p. 692.) Jeffery Powell, whom the prosecutor theorized inflicted the stab wound, and Christopher Langlois were convicted of second degree murder. (Ibid.) On direct appeal, Langlois argued that the jury instructions given permitted the jury to convict him of directly aiding and abetting an implied malice murder, which he asserted was an invalid theory. (Id. at pp. 709-710.) The appellate court rejected that argument, but concluded the jury instructions were not tailored to aiding and abetting implied malice murder. (Id. at p. 714; see People v. Reyes (2023) 14 Cal.5th 981, 990 [directly aiding and abetting implied malice murder a valid theory].)
The trial court in Powell had instructed the jury on the natural and probable consequences doctrine, and on direct aiding and abetting. (Powell, supra, 63 Cal.App.5th at pp. 706-708.) The jury was instructed on aiding and abetting, pursuant to CALCRIM No. 401, as follows: "'To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove the following: [¶] 1. The perpetrator committed the crime. [¶] 2. The defendant knew that the perpetrator intended to commit the crime. [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; and [¶] 4. The defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime. [¶] Someone aids and abets a crime if he knows of the perpetrator's unlawful purpose, and he specifically intends to and does in fact aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime. [¶] If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor. [¶] If you conclude that [the] defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor; however, the fact that a person is present at the scene of a crime or fails to prevent the crime does not by itself make him an aider and abettor.'" (Powell, supra, at pp. 706-707.)
Pursuant to CALCRIM No. 520, the pattern instruction on murder with malice, the jury was instructed, "'There are two kinds of malice aforethought: [¶] Express malice and implied malice. [¶] Proof of either is sufficient to establish the state of mind required for murder. [¶] The defendant acted with express malice if he unlawfully intended to kill. [¶] The defendant acted with implied malice if: [¶] 1. He intentionally committed an act; 2. The natural and probable consequences of the act were dangerous to human life; 3. At the time he acted, he knew his act was dangerous to human life and 4. He deliberately acted with conscious disregard for human life.'" (Powell, supra, 63 Cal.App.5th at pp. 707-708.)
Although the prosecutor did not pursue the theory that Langlois directly aided and abetted an implied malice murder and the appellate court concluded the error was ultimately harmless, it explained, "Guilt as an aider and abettor is guilt 'based on a combination of the direct perpetrator's acts and the aider and abettor's own acts and own mental state.'" (Powell, supra, 63 Cal.App.5th at p. 710, quoting People v. McCoy, supra, 25 Cal.4th at p. 1117.) "[T]he aider and abettor of implied malice murder need not intend the commission of the crime of murder. Rather, relative to the aider and abettor's intent, he or she need only intend the commission of the perpetrator's act, the natural and probable consequences of which are dangerous to human life, intentionally aid in the commission of that act and do so with conscious disregard for human life. [¶] Because the application of aiding and abetting liability for implied malice murder as to Langlois was not foreclosed by the instructions and the aiding and abetting instructions here were not tailored for implied malice murder, the instructions were erroneous." (Powell, supra, at p. 714.)
2. Langi
Subsequently, in the context of an appeal from the denial of a section 1172.6 resentencing petition, the appellate court in Langi drew from Powell. (Langi, supra, 73 Cal.App.5th at p. 982.) Langi, who was convicted of second degree murder, was one of four men who beat and robbed a group of people, resulting in the death of one person who fell from a punch and hit his head. (Id. at p. 975.) In considering whether Langi could have been convicted under a theory of imputed malice, the appellate court concluded that the jury could have found Langi guilty of murder as an aider and abettor (id. at p. 980), and "[t]he instructions should have explained that, to be guilty as a direct aider and abettor of second degree murder, an accomplice must have acted with the mental state of implied malice. (Powell, supra, 63 Cal.App.5th at pp. 713-714.) More precisely, as Powell holds, the accomplice must have aided the perpetrator's commission of the life-endangering act while 'personally harbor[ing]' the mental state of implied malice. (Id. at p. 713.) That mental state includes 'knowledge that the perpetrator intended to commit the [life-endangering] act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and . . . conscious disregard for human life.' (Ibid., italics omitted.) The standard aiding-and-abetting instruction given in Powell, a CALCRIM instruction identical in relevant substance to the CALJIC instruction used here (see id. at pp. 706-707, citing CALCRIM No. 401), was inadequate as applied to the crime of second degree murder because it did not clarify that an accomplice must personally harbor that mental state of implied malice. (Id. at p. 714.) Similarly, nothing in the standard [CALJIC] aiding-and-abetting instruction given here states that the accomplice himself must have acted with such knowledge and conscious disregard" (Langi, supra, at p. 983, fns. omitted).
3. Maldonado
In Maldonado, also an appeal following denial of a resentencing petition under section 1172.6, the appellate court followed Langi in the context of a first degree murder case in which the jury did not necessarily find express malice. (Maldonado, supra, 87 Cal.App.5th at p. 1266.) The victim in Maldonado was found dead in a storage unit and the defendant made conflicting statements concerning whether he or another individual stabbed the victim and whether he did or did not aid the other individual in the murder. (Id. at pp. 1259-1260.) Although the defendant in Maldonado was convicted of first degree murder, the jury was instructed on two theories, one of which-willfull, deliberate and premeditated murder-required a finding of intent to kill and the second of which- murder committed by lying in wait-did not. (Maldonado, supra, at pp. 1262-1263.)
The jury found the lying-in-wait special circumstance allegation not true, which, in contrast with lying-in-wait as a theory of murder in the first degree, required a finding the murder was intentional. (Maldonado, supra, 87 Cal.App.5th at p. 1262, fn. 3.)
The jury was instructed with the same aiding and abetting instruction found deficient in Powell. (Maldonado, supra, 87 Cal.App.5th at p. 1265.) Maldonado concluded, "[T]he jury was instructed that a person aids and abets a crime if 'he or she knows the perpetrator's unlawful purpose and he or she specifically intends to and does in fact aid, facilitate, promote, encourage or instigate the perpetrator's commission of that crime.' The murder by lying in wait instruction did not instruct the jury that the perpetrator needed to intend to cause death. While the perpetrator must have concealed his purpose from the victim, waited and watched for an opportunity to act, intentionally made a surprise attack from a position of advantage, and have lain in wait for a substantial enough duration to show a state of mind equivalent to deliberation or premeditation, the jury may have found the perpetrator's purpose was only to injure or intimidate the victim in a surprise attack. Thus, using Langi's reasoning, the jury could have construed the instructions such that, 'to be guilty as an aider and abettor of [lying in wait first degree] murder, [the] appellant need only have intended to encourage the perpetrator's intentional act-in this case, [a surprise attack on the victim]-whether or not [the] appellant intended to aid or encourage [the victim's] killing, and whether or not he personally knew of and disregarded the risk of such a killing.'" (Id. at p. 1266, quoting Langi, supra, 73 Cal.App.5th at pp. 982-983.)
D. Luster's Convictions Required Jury to Find Intent to Kill
The concern raised by the foregoing decisions is the possibility that in view of imprecise or ambiguous instructions on direct aiding and abetting and implied malice murder, a jury might find a defendant guilty of aiding and abetting implied malice murder if it found, one, the killing resulted from the actual killer's intentional act and, two, the defendant knowingly and intentionally aided this intentional act, irrespective of whether the defendant personally harbored any malice. (Powell, supra, 63 Cal.App.5th at pp. 713-714; Langi, supra, 73 Cal.App.5th at p. 982; Maldonado, supra, 87 Cal.App.5th at p. 1266.)
Powell also implicates another interpretation whereby the jury does not construe the aiding and abetting instruction's reference to the crime to mean the perpetrator's intentional act. Instead, when the instruction's reference to the crime is replaced with murder, the instruction reads that the aider and abettor must knowingly aid and abet the commission of murder with the intent or purpose of facilitating the commission of murder. "Murder by any commonsense definition is a form of killing ...." (People v Coleman (1989) 48 Cal.3d 112, 139.) "[I]t is impossible to intend to commit a murder without intending to kill." (Ibid.) Interpreting the instruction this way, a jury could understand (incorrectly) that, to be liable for murder, the aider and abettor had to knowingly aid and abet with an intent to kill. That does not implicate a theory of imputed malice, and it actually inures to the benefit of an aiding and abetting principal, but it demonstrates the ambiguity of the aiding and abetting instruction in the implied malice murder context.
In this case, the jury was instructed with CALCRIM No. 401 as follows: "To prove the defendant is guilty of a crime based upon aiding and abetting[,] the People must prove: [¶] One, the perpetrator committed the life-endangering act; [¶] Two, the defendant knew the perpetrator intended to commit the life-endangering act; [¶] Three, before or during the commission of the crime the defendant intended to aid and abet the perpetrator in committing the life-endangering act; [¶] And four, the defendant's words or conduct did, in fact, aid and abet the perpetrator's commission of the life-endangering act." Luster focuses on this instruction, claiming that notwithstanding its use of the term "'life endangering act'" rather than the "' crime,'" it failed to apprise the jury that to convict him of murder or attempted murder as an aider and abettor, it must find he personally harbored malice.
The jury was separately instructed with CALCRIM No. 521, which provided, "[T]he People must prove: [¶] One, the defendant committed or aided and abetted, an act that caused the death of another person; [AND] [¶] Two, when the defendant acted or aided and abetted the act he had the state of mind called malice aforethought. There are two kinds of malice aforethought; express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder. [¶] A defendant had express malice if he unlawfully intended to kill. A defendant had implied malice if he intentionally committed or intentionally aided and abetted the life-endangering act; [¶] Two, the natural and probable consequences of the life-endangering act were dangerous to human life; [¶] Three, at the time he acted or aided and abetted the act he knew his act was dangerous to human life; [¶] And four, he deliberately acted or aided and abetted the act with conscious disregard for human life."
Effective September 2023, CALCRIM No. 526 was added to the pattern instructions to address implied malice murder in the context of aiding and abetting. The instruction provides, in relevant part: "To prove that the defendant is guilty of aiding and abetting murder by acting with implied malice, the People must prove that: [¶] 1. The perpetrator committed [an] act[s] that (was/were) dangerous to human life; [¶] 2. The perpetrator's act[s] caused the death of (another person/[or] a fetus); [¶] 3. The defendant knew that the perpetrator intended to commit the act[s] that (was/were) dangerous to human life; [¶] 4. Before or during the commission of the perpetrator's act[s], the defendant intended to aid and abet the perpetrator in committing the act[s] that (was/were) dangerous to human life; [¶] 5. Before or during the commission of the perpetrator's act[s], the defendant knew the perpetrator's act[s] (was/were) dangerous to human life, and the defendant deliberately acted with conscious disregard for human life; [¶] AND [¶] 6. By words or conduct, the defendant did in fact aid and abet the perpetrator's commission of the act[s]."
Luster fails to persuade us that CALCRIM No. 401 "'"so infuse[d] the trial with unfairness as to deny due process of law"'" (Lemcke, supra, 11 Cal.5th at p. 655), or that it otherwise confused or mislead the jury. This was not a complicated case, factually or legally; the victims were shot during a daytime drive-by shooting, and the prosecutor theorized that Luster was the driver and Thompson was the shooter, backed by evidence that officers pulled over the suspect vehicle with Luster driving and Thompson in the passenger seat within an hour of the crime, extensive video surveillance footage, marked distinctions between the duo's clothing and appearance, and a distinct timeline of events before and after the shooting. "'"It is well established that the instruction 'may not be judged in artificial isolation,' but must be considered in the context of the instructions as a whole and the trial record."'" (Ibid.) We do not agree that when considered together, CALCRIM Nos. 401 and 520 created, or left, an ambiguity that allowed the jury to convict Luster of second degree murder in the absence of malice; and the jury did not, in fact, convict Luster of either second degree murder or first degree murder under a theory that did not require a finding of intent to kill.
Although Luster argues that because of the aiding and abetting instruction at issue, the instructions on murder and attempted murder were "circular" and "hopelessly confusing," we find no merit to this argument. "'Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions.'" (Thomas, supra, 14 Cal.5th at p. 382.) Under the instructions given, the jury found that Demarko's killing was either willful, deliberate, and premeditated, or "perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death ._" (§ 189, subd. (a).) Thus, whichever theory the jury relied on to convict Luster of first degree murder, it was required to find he had the intent to kill. Likewise, to convict Luster of the attempted murder of Arthur T., the jury was required to find he had the intent to kill. Accordingly, we reject Luster's claim of instructional error.
The jury was instructed on first degree murder with CALCRIM No. 521 and attempted murder with CALCRIM No. 600, both of which were modified to incorporate aiding and abetting and required a finding of intent to kill as an element.
In the absence of error, we do not reach the issue of prejudice, but were we to assume some ambiguity existed for the sake of argument, on the record in this case, it was harmless whether measured under Watson or Chapman.
II. Sentencing Error Claims A. Section 1385 as Amended by Senate Bill 81
Following amendment by Senate Bill 81, effective January 1, 2022, section 1385, subdivisions (a) through (c)(2), provides, in relevant part:
"(a) The judge or magistrate may, either on motion of the court or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal shall be stated orally on the record. The court shall also set forth the reasons in an order entered upon the minutes if requested by either party or in any case in which the proceedings are not being recorded electronically or reported by a court reporter. A dismissal shall not be made for any cause that would be ground of demurrer to the accusatory pleading.
"(b) [¶] (1) If the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a).
"(2) This subdivision does not authorize the court to strike the additional punishment for any enhancement that cannot be stricken or dismissed pursuant to subdivision (a).
"(c) [¶] (1) Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.
"(2) In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. 'Endanger public safety' means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.
"(A) Application of the enhancement would result in a discriminatory racial impact as described in paragraph (4) of subdivision (a) of Section 745.
"(B) Multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed.
"(C) The application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed.
"(D) The current offense is connected to mental illness. "(E) The current offense is connected to prior victimization or childhood trauma.
"(F) The current offense is not a violent felony as defined in subdivision (c) of Section 667.5.
"(G) The defendant was a juvenile when they committed the current offense or any prior offenses, including criminal convictions and juvenile adjudications, that trigger the enhancement or enhancements applied in the current case.
"(H) The enhancement is based on a prior conviction that is over five years old.
"(I) Though a firearm was used in the current offense, it was inoperable or unloaded."
B. Luster's Claim
No sentence enhancements were alleged or found true as to Luster, but the trial court found he suffered one prior strike conviction. Trial counsel filed a statement of mitigating factors and invited the trial court to strike Luster's prior conviction under Romero and section 1385, subdivision (a). The court declined to strike the prior conviction but, "in an abundance of caution," imposed the lower term for attempted murder.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504 (Romero).
On appeal, Luster claims that subdivision (c) of section 1385 applies to strike convictions and, under Walker, the presence of a mitigating circumstance creates a rebuttable presumption "that dismissal of an enhancement is in the furtherance ofjustice (and that its dismissal is required) unless the court makes a finding that the resultingly shorter sentence due to dismissal 'would endanger public safety.'" (People v. Walker (2022) 86 Cal.App.5th 386, 398, review granted Mar. 22, 2023, S278309 (Walker).) He argues that he was a juvenile when he committed the prior strike offense, the prior offense occurred more than five years ago, and enhancements and strikes are arguably disproportionately applied to Black defendants such as himself, implicating section 1385, subdivision (c)(2)(A), (G), and (H). Because the trial court did not apply subdivision (c) of section 1385 during sentencing, he claims entitlement to remand for resentencing.
Alternatively, he argues his trial counsel was ineffective for failing to request relief under section 1385, subdivision (c).
Luster's claim of sentencing error under section 1385 requires that we agree that section 1385, subdivision (c), applies to prior strike convictions. However, it is well established that the Three Strikes law is an alternative sentencing scheme for the current offense rather than an enhancement (Romero, supra, 13 Cal.4th at p. 527), and section 1385, subdivision (c), expressly applies to the dismissal of an "'enhancement'" (People v. Burke (2023) 89 Cal.App.5th 237, 243). Appellate courts have uniformly rejected the argument that section 1385, subdivision (c), applies to prior strike convictions and Luster offers no persuasive argument for departing from those decisions. (Burke, supra, at p. 244; accord, People v. Dain (2024) 99 Cal.App.5th 399, 411; People v. Olay (2023) 98 Cal.App.5th 60, 69; People v. Tilley (2023) 92 Cal.App.5th 772, 776, fn. 2; see People v. McDowell (2024) 99 Cal.App.5th 1147, 1154 [rejecting argument § 1385, subd. (c), applies to alternative punishment for human trafficking under § 236.1, subd. (c)(2)].) Having rejected Luster's foundational argument that section 1385, subdivision (c), applies to his prior strike conviction, we do not reach his remaining contentions concerning error under that statutory subdivision.
C. Thompson's Claims
As to murder and attempted murder, the jury found the sentence enhancement allegations for personal and intentional discharge of a firearm true, and the trial court found Thompson had a prior strike conviction. At sentencing, trial counsel requested the court stay any enhancements it could. The court construed counsel's request to include striking Thompson's prior strike conviction under Romero and declined to do so. The court also declined to exercise discretion to strike the firearm enhancements, but imposed the lower term for attempted murder.
Thompson argues, as did Luster, that section 1385, subdivision (c), applies to his prior strike conviction and, under that subdivision, four mitigating factors apply: multiple enhancements alleged in a single case, application of an enhancement could result in a sentence exceeding 20 years, Thompson was a juvenile when he committed the prior strike offense, and the prior strike offense is more than five years old. (§ 1385, subd. (c)(2)(B), (C), (G), (H).) Pursuant to Walker, Thompson argues the trial court failed to give great weight to these mitigating factors and failed to make a finding that dismissal would endanger public safety. (Walker, supra, 86 Cal.App.5th at p. 398, review granted.)
For the reasons set forth in part II.B. of the Discussion, we reject Thompson's argument that subdivision (c) of section 1385 applies to his prior strike conviction, which forecloses his arguments that sentencing under the Three Strikes law and imposition of the firearm enhancements together constitute imposition of multiple enhancements, he was a juvenile at the time he committed the prior strike offense, and the prior conviction was more than five years old. Any remaining argument that the trial court abused its discretion because it otherwise failed to afford great weight to the relevant factors and failed to make a finding that dismissal would endanger public safety, or that it failed to consider imposing a lesser firearm enhancement under Tirado, are forfeited for failure to object, as discussed next.
Tirado resolved a split among the appellate courts and held that the trial court has the discretion to substitute a lesser enhancement under section 12022.53 under certain circumstances. (Tirado, supra, 12 Cal.5th at p. 700 & fn. 12.)
1. Forfeiture
Thompson was sentenced in July 2022, approximately six months after section 1385 was amended by Senate Bill 81 and after the California Supreme Court decided Tirado. "'A party in a criminal case may not, on appeal, raise "claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices" if the party did not object to the sentence at trial. [Citation.] The rule applies to "cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons ...."'" (People v Scott (2015) 61 Cal.4th 363, 406.) "Strong policy reasons support this rule: 'It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. [Citations.]' [Citation.] '"'"The law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal."'"'" (People v. Stowell (2003) 31 Cal.4th 1107, 1114; accord, People v. Salazar (2016) 63 Cal.4th 214, 239-240; People v. French (2008) 43 Cal.4th 36, 46.)
'"[Discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue.'" (In re Sheena K. (2007) 40 Cal.4th 875, 887-888, fn. 7.) Absent a change in the law that applies retroactively (e.g., People v. Stamps (2020) 9 Cal.5th 685, 698-699), or an extenuating circumstance such as futility (e.g., People v. Perez (2020) 9 Cal.5th 1, 7-8), neither of which is applicable here, the policy reasons underlying the forfeiture doctrine fully support its application where a defendant remains silent in the trial court when sentenced and then seeks to obtain appellate relief based on asserted sentencing errors under changes in the law that had long been in effect.
Thompson does not dispute the foregoing legal principles, but argues that trial counsel's request for relief from the enhancement suffices to preserve his claims for review. We disagree. Thompson did not object or otherwise alert the trial court to the errors he now claims entitle him to remand for resentencing. Had he done so, the asserted errors could have been corrected or the record otherwise developed as to the issues. "[A] party cannot argue on appeal that the trial court erred in failing to conduct an analysis it was not asked to conduct" (People v. Fruits (2016) 247 Cal.App.4th 188, 208, fn. omitted), and strong policy reasons support application of the rule in the situation presented in this case (People v. Stowell, supra, 31 Cal.4th at p. 1114).
Furthermore, "[a]bsent evidence to the contrary, we presume that the trial court knew the law and followed it." (People v. Ramirez (2021) 10 Cal.5th 983, 1042.) Thus, "we presume that a judgment or order of the trial court is correct, '"[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown."'" (People v. Giordano (2007) 42 Cal.4th 644, 666.) In this instance, notwithstanding Thompson's contrary argument, there is no indication the trial court misunderstood the scope of its sentencing discretion. By failing to object to the court's discretionary sentencing decisions, Thompson has forfeited review of his claims of sentencing error under section 1385 and Tirado.
2. IAC
If we find his claims forfeited, Thompson argues that trial counsel was ineffective. To prevail on a constitutional claim of IAC, a defendant "'must satisfy a two-pronged showing: that counsel's performance was deficient, and that [he] was prejudiced, that is, there is a reasonable probability the outcome would have been different were it not for the deficient performance.'" (People v. Woodruff (2018) 5 Cal.5th 697, 736 (Woodruff), quoting People v. Alexander (2010) 49 Cal.4th 846, 888; accord, Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) "'[T]he standard for judging counsel's representation is a most deferential one.' (Harrington v. Richter (2011) 562 U.S. 86, 105 (Richter).) We 'must indulge a "strong presumption" that counsel's conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight.' (Bell v. Cone (2002) 535 U.S. 685, 702.) 'Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge.' (Richter, at p. 105.)" (In re Long (2020) 10 Cal.5th 764, 773 (Long).)
Therefore, a "defendant's burden [is] 'difficult to carry on direct appeal,' as a reviewing court will reverse a conviction based on [IAC] on direct appeal only if there is affirmative evidence that counsel had '"'no rational tactical purpose'"' for an action or omission." (People v. Mickel (2016) 2 Cal.5th 181, 198, quoting People v. Lucas (1995) 12 Cal.4th 415, 437.) "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Strickland, supra, 466 U.S. at p. 690; accord, People v. Barrett (2012) 54 Cal.4th 1081, 1105.) At issue here, "'[d]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.'" (People v. Carrasco (2014) 59 Cal.4th 924, 985, quoting People v Hillhouse (2002) 27 Cal.4th 469, 502.)
The record in this case does not suggest the existence of any obvious grounds favoring dismissal or reduction of one or both firearm enhancements. Thompson was the actual shooter and he shot two people in broad daylight, without any explanation so far as the trial evidence showed, resulting in the death of one victim and injury to the other. While it is true that Thompson was a young man at the time, as he points out, he was 25 years old, not a juvenile; he had multiple prior juvenile adjudications; and he received a six-year prison sentence for a prior assault with a deadly weapon with an enhancement for causing GBI and an assault with force likely to produce GBI.
Thompson's conviction for assault with a deadly weapon with infliction of GBI is a violent felony within the meaning of the Three Strikes law. (§ 667.5, subd. (c)(8).)
Trial counsel may well have reasonably determined that on the facts of this case and where his client personally used a gun to shoot two people without apparent provocation or explanation, a more specific request for relief from one or both firearm enhancements under section 1385 or Tirado would not have been fruitful. Furthermore, Thompson fails to persuade us that there is a reasonable probability of a more favorable outcome had it not been for counsel's failure to either object or argue further on the points now advanced on appeal. (Woodruff, supra, 5 Cal.5th at p. 739; see Harrington v. Richter (2011) 562 U.S. 86, 112 ["The likelihood of a different result must be substantial, not just conceivable."].) Accordingly, Thompson's IAC claim fails.
III. Modification of Judgment to Reflect $300 Restitution and Parole Revocation Restitution Fines
For both Luster and Thompson, the trial court expressly selected the statutory minimum restitution fine under section 1202.4, subdivision (b)(1), in recognition of their inability to pay, with a corresponding parole revocation restitution fine, suspended, under section 1202.45, subdivision (a). However, the court erred when it pronounced the statutory minimum as $200 rather than $300. Further, neither Luster's nor Thompson's abstract ofjudgment reflects imposition of these fines, a clerical error we may order corrected on review. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
"[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (People v. Scott (1994) 9 Cal.4th 331, 354.) Errors of this type are "'clear and correctable' independent of any factual issues presented by the record at sentencing." (Ibid., quoting People v. Welch (1993) 5 Cal.4th 228, 235.) "A claim that a sentence is unauthorized . . . may be raised for the first time on appeal, and is subject to judicial correction whenever the error comes to the attention of the reviewing court." (People v. Dotson, supra, 16 Cal.4th at p. 554, fn. 6, citing People v. Scott, supra, at p. 354.)
Effective January 1, 2014, the statutory minimum restitution fine was increased to $300. (Stats. 2011, ch. 358, § 1.) Therefore, the trial court erred when it pronounced the statutory minimum fine as $200. Thompson, joined by Luster, seeks to avoid correction of the fine amount by arguing that because the trial court chose to impose the fine in the amount of $200 in view of inability to pay, the sentence is not unauthorized, and the People forfeited any objection by failing to bring the error to the court's attention at the time of sentencing. We disagree.
The record in this case is not ambiguous. Based on its finding of Luster's and Thompson's inability to pay, the trial court elected to impose the statutory minimum restitution fine, which had long been $300, and to forego imposing the court fees and fines. However, the court erred in orally pronouncing the statutory minimum fine as $200. This resulted in a sentence that was unauthorized under the law and is not subject to forfeiture. (In re Sheena K., supra, 40 Cal.4th at pp. 886-887, citing People v. Smith (2001) 24 Cal.4th 849, 852 &People v. Scott, supra, 9 Cal.4th at p. 354 &fn. 17.) Accordingly, Luster's and Thompson's judgments are modified to reflect imposition of a statutory minimum restitution fine of $300 under section 1202.4, subdivision (b)(1), and a parole revocation restitution fine of $300, suspended, under section 1202.45, subdivision (a). The trial court shall order the issuance of amended abstracts ofjudgment reflecting these fines.
The probation reports recommended the maximum restitution fine of $10,000.
DISPOSITION
Luster's and Thompson's judgments are modified to reflect imposition of a statutory minimum restitution fine of $300 under section 1202.4, subdivision (b)(1), and a parole revocation restitution fine of $300, suspended, under section 1202.45, subdivision (a); and the trial court shall order the issuance of amended abstracts of judgment reflecting these fines.
Except as modified, Luster's and Thompson's judgments are affirmed.
WE CONCUR: POOCHIGIAN, Acting P. J. DETJEN, J.