Opinion
A147608
08-11-2017
THE PEOPLE, Plaintiff and Respondent, v. ANTOINE LEEOTIS MIMS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. 05-132290-8)
A jury convicted appellant Antoine Leeotis Mims of several felonies, including attempted murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a)), assault with a semiautomatic firearm (§ 245, subd. (b)), and shooting at a person from a car (§ 26100, subd. (c)). The jury found true various sentencing enhancement allegations, including allegations Mims committed the offenses for the benefit of a street gang (§ 186.22, subd. (b)(1)). The trial court sentenced Mims to 40 years to life in state prison.
All undesignated statutory references are to the Penal Code.
Mims appeals, contending: (1) the court erred by denying his motion to exclude statements made in a custodial interview; (2) trial counsel rendered ineffective assistance by failing to object to evidence regarding Mims's prior felony conviction and gang membership; (3) the court erred by instructing the jury that the right to self-defense cannot be contrived (CALCRIM No. 3472); and (4) cumulative errors require reversal.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution charged Mims with ten counts arising out of two shootings on July 12, 2012. The shootings involved three victims: R. Harris, D. Yates, and C. Turner.
The operative information charged Mims with attempted murder (§§187, subd. (a), 664, subd. (a) (Counts 1, 3, 6)), assault with a semiautomatic firearm (§ 245, subd. (b) (Counts 2, 5, 8)), shooting at a person from a car (§ 26100, subd. (c) (Counts 4, 7)), and possession of a firearm with a prior juvenile adjudication (§ 29820 (Counts 9, 10)). The information alleged gang, and firearm use and discharge, enhancements (§§ 186.22, subd. (b)(1), 12022.53, 12022.5).
Prosecution Evidence
We provide an overview of the evidence here, and additional factual and procedural details in the discussion of Mims's specific claims.
Deep C is a criminal street gang in Richmond. Deep C operates by "[g]un violence" and its primary activities are committing "firearm assaults" and homicides against rival gangs, including Swerve Team. In 2009—when he was a 15-year-old member of Deep C—Mims shot a North Richmond gang member. Mims claimed he acted in self-defense. Later, Mims acknowledged he shot the victim because he felt "disrespected" when the victim did not return a high five. Mims spent two years in custody for felony assault with a firearm.
The prosecution introduced eight convictions—including Mims's juvenile adjudication—to show the existence of the Deep C gang and its pattern of criminal activity (§ 186.22).
In 2012, Mims was still a member of Deep C. His gang moniker was "Bubba." On his cell phone, Mims had pictures of himself making gang signs and posing with members of Deep C. His phone also had audio files of rap songs referencing "Bubba," Deep C and rival gangs, and drive-by shootings. Mims's social media accounts referred to Deep C and gang violence.
On July 12, 2012, Mims went to a North Richmond neighborhood—where he had "enemies"—in a stolen Honda. Mims deactivated his cell phone because he believed the police had tapped it. At 9:30 a.m., Mims shot at two Swerve Team members—Harris and Yates—from the back seat of the Honda. Harris heard approximately 17 shots. A bullet hit Harris in the leg; Yates was shot in the arm and hip.
A Swerve Team gang member returned fire; a bullet passed through the exterior of the Honda and hit Mims in the back. At 9:35 a.m., Mims was dropped off at a hospital, where he received treatment for the gunshot wound. Contra Costa Detective Dale Hadley interviewed Mims at the hospital. Mims said he was in North Richmond visiting his girlfriend. Initially, Mims claimed a man shot out of a car window and he was caught in "crossfire." Later, however, Mims said the man was shooting at him; Mims claimed he did not shoot back.
That morning, another shooting occurred in North Richmond, about eight blocks from where Harris and Yates were shot. Turner—who was not a gang member—was shot in the groin and legs by a person who had gotten out of a parked black car. Officers found numerous shell casings at the two shooting scenes. Officers also found the green Honda; its interior was burned, and the exterior had bullet holes. Inside the car, officers found a shell casing from the gun used in both shootings.
The prosecution's theory was Mims or another Deep C gang member shot Turner based on a mistaken belief Turner was affiliated with Swerve Team.
Mims was arrested in January 2013 and Detective Hadley interviewed him in custody. Mims admitted being affiliated with Deep C. When Detective Hadley told Mims "being from Deep C, that's also a gang enhancement," Mims responded, " 'I already know that.' " Mims said he joined a gang at age 15, that he " 'chose to be a gang member' " and that he was once affiliated with Hot Boyz, the former name of a Deep C subset. Later, however, Mims claimed he wasn't a Deep C member—he just "hung out" in the neighborhood. When Detective Hadley discussed the shooting, Mims did not mention self-defense. Instead, Mims said a man in a gray car shot at him, he did not shoot back, and that he "just wanted to stick to the same story and go to trial."
Defense Evidence
On the morning of July 12, 2012, a man who lived near the neighborhood where Harris and Yates were shot saw a gray Buick. Two men with guns were in the car. The car drove away; then the man heard "multiple gunshots." The defense theory was Mims acted in self-defense—that he was a "target" of Swerve Team because of the 2009 shooting. The defense also argued law enforcement officers made the faulty assumption Mims was the perpetrator and failed to adequately investigate.
Verdict and Sentence
The jury found Mims guilty of attempted murder of Harris and Yates (§§ 664, subd. (a), 187, subd. (a) (Counts 3, 6)), shooting at Harris and Yates from a car (§ 26100, subd. (c) (Counts 4, 7)), assault with a semiautomatic firearm as to Harris and Yates (§ 245, subd. (b) (Counts 5, 8)), and possession of a firearm with a prior juvenile adjudication (§ 29820 (Count 9)). It also found the gang, and firearm use and discharge, allegations true (§§ 186.22, subd. (b)(1), 12022.53, 12022.5). The jury found Mims not guilty of the attempted murder of Turner (§§ 187, subd. (a), 664, subd. (a) (Count 1)) and not guilty of assault with a semiautomatic firearm as to Turner (§ 245, subd. (b) (Count 2)).
The court dismissed Count 10 at the prosecution's request and sentenced Mims to 40 years to life in state prison.
DISCUSSION
I.
The Miranda Claim Fails Because Mims Did Not Unambiguously Invoke His Right
to Silence During the Custodial Interview
Mims contends the court erroneously denied his motion to exclude statements made during the January 2013 custodial interview.
A. Background
The day after his January 2013 arrest, Detective Hadley interviewed Mims in custody. Detective Hadley Mirandized Mims and asked him about the shooting. Approximately halfway through the interview, the following discussion took place:
"MIMS: You have my story. I don't know why you keep on asking questions—like.
"HADLEY: I'm not ans - I'm trying to . . . (Crosstalk) . . . talk to you.
"MIMS: Trying to talk (unintelligible).
"HADLEY: Don't you think you—you should talk about it?
"MIMS: No, I already gave you my story—what is there to talk about?
"HADLEY: Okay. You want to know what other evidence we have against you? You gotta care, Antoine. You gotta girlfriend—you got kids? Last time I talked to you, you said you had a kid on the way.
"MIMS: Mm-hm.
"HADLEY: Do you have one now?
"MIMS: Mm-hm.
"HADLEY: 'Kay, so is that important [to] you?
"MIMS: Mm-hm."
Detective Hadley told Mims the police found a shell casing inside the car and there "was a bullet hole in the back right seat." Then the following exchange took place:
"MIMS: Mm-hm.
"HADLEY: Where you were shot.
"MIMS: Yeah.
"HADLEY: So you were seated in the back right seat, right?
"MIMS: Mm-hm.
"HADLEY: Okay. So, if you were seated in the back right seat—stay with me here, okay? Antoine?
"MIMS: I don't feel like talking about it no more.
"HADLEY: Why not?
"MIMS: Because I'm tired. I have a headache (unintelligible) go to court and take it to trial and see what happens from there.
"HADLEY: You don't think it's important?
"MIMS: It's—it's important to you all but to me it's . . .
"HADLEY: It's not important to you?
"MIMS: Nah, not really.
"HADLEY: There has to be some reason, Antoine.
"MIMS: There's no reason.
"HADLEY: You're not listening to the evidence, then. I mean it would be different if we didn't have anything but we have a lot of evidence. So you're in the back right seat. We got your bullet in your back where you got shot.
"MIMS: And I understand everything, you know what I'm saying, right now but (unintelligible).
"HADLEY: I mean it's—it's not just gonna go away. I mean you make . . . (Crosstalk). I'm just telling you. (Crosstalk) You know I have . . . (Crosstalk) You're not a little kid—I know you're not a little kid. (Crosstalk) . . .
"MIMS: Then why—then why'd you all tell me—why—why they not up in here like talking . . .
(Crosstalk)
"HADLEY: Who?
(Crosstalk)
"MIMS: Fucking deal. The people's that's out there in North Richmond got shot. Why you all talking to me for? All you do . . .
(Crosstalk)
"HADLEY: There was tons of other people. Well, why don't you tell me your story?
"MIMS: I gave you my story and I'm stickin' with my story. There's nothing else I want to talk about."
Detective Hadley continued questioning Mims, who admitted being a gang member but denied the Harris/Yates shooting.
Before trial, Mims moved to exclude statements made during the interview. Mims claimed he invoked his right to remain silent when he made the following comments: (1) "I don't feel like talking anymore, right now"; (2) he would "take it to trial and see what happens from there"; and (3) "I gave you my story, and I'm sticking with my story. There's nothing else I want to talk about." According to Mims, any statements made after he invoked his right to silence violated Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). The prosecution opposed the motion, arguing Mims's statements were not unambiguous invocations of the right to remain silent.
The court listened to a recording of the interview and read the interview transcript. Then it denied the motion, concluding: "any statements by Mr. Mims about sticking to his story; don't know why you keep asking questions—and I'm paraphrasing here—I don't feel like talking anymore, right now, because I'm tired and I have a headache; um, I gave you my story and I'm sticking with it; There's nothing else I want to talk about, . . . I find those to be ambiguous and I would not be granting the motion." The court noted, "The wording is conditional here. I don't feel like talking anymore, right now, does not close the door to talking. And then, Why don't you feel like talking anymore right now? Well, right now, I'm tired and I have a headache. Again, that's conditional.
"Then it's expressed, . . . I just want to go to court and take it to trial and see what happens from there. That is not . . . unequivocal invocation of his right to remain silent even in conjunction with the other statements. . . . [P]art of what the police do, I believe, is entice somebody with the idea that if the conversation keeps going, the suspect is gonna learn more information which is permissible . . . I think there may be some of that dynamic going on that, perhaps, Mr. Mims wants to know more about what the police know, and perhaps, why it might be ambiguous, his statements. But if one of you said that, I'd probably call it speculative, but there is enough here that I can't say that there was an unambiguous unequivocal [invocation of the] right to silence."
At trial, Detective Hadley testified to statements Mims made during the custodial interview.
B. The Court Properly Denied the Motion and Concluded Mims Did Not Unambiguously Invoke His Right to Silence
"To safeguard the federal constitutional right not to be compelled to be a witness against oneself at trial, a suspect in police custody 'must be warned prior to any questioning that he has the right to remain silent [and] that anything he says can be used against him in a court of law.' [Citation.] A suspect may waive his right to remain silent; and, if he does so voluntarily, knowingly and intelligently, statements made during police interrogation may be used against him at trial." (People v. Thomas (2012) 211 Cal.App.4th 987, 1005 (Thomas); People v. Nelson (2012) 53 Cal.4th 367, 374-375.)
Here, Mims waived his Miranda rights at the outset of the interview. To " 'invoke the Fifth Amendment privilege after it has been waived, and in order to halt police questioning after it has begun, the suspect "must unambiguously" assert his right to silence or counsel. [Citation.] It is not enough for a reasonable police officer to understand that the suspect might be invoking his rights. [Citation.] Faced with an ambiguous or equivocal statement, law enforcement officers are not required under Miranda . . . either to ask clarifying questions or to cease questioning altogether.' [Citations.] Because [Mim's] statements are undisputed, we independently determine whether he unambiguously asserted his right to counsel." (People v. Suff (2014) 58 Cal.4th 1013, 1068.)
Mims contends he invoked his right to silence during the interview. We disagree. A defendant has not invoked his right to silence when his " 'statements were merely expressions of passing frustration or animosity toward the officers, or amounted only to a refusal to discuss a particular subject covered by the questioning.' " (People v. Williams (2010) 49 Cal.4th 405, 433 (Williams).) Similarly, "statements that can be reasonably construed to mean, 'That's my story and I'm sticking to it' or 'I don't know what else to tell you' are not unambiguous statements a reasonable officer would know to be an invocation of a defendant's right to end the interrogation." (People v. Villasenor (2015) 242 Cal.App.4th 42, 62.)
When Detective Hadley interviewed Mims in the hospital, Mims claimed a man shot at him and he did not return fire. In the custodial interview, Detective Hadley repeatedly asked Mims to explain the incident. In response, Mims said, "I don't know why you keep on asking questions" and "I already gave you my story—what is there to talk about?" Mims answered some of Detective Hadley's questions, but refused to answer others. When Detective Hadley pressed Mims to explain the shooting, Mims said: "I don't feel like talking about it no more" and that he would "take it to trial and see what happens from there." Later he said, "I gave you my story and I'm stickin' with my story. There's nothing else I want to talk about."
Viewed in context, these statements were not "an unambiguous invocation of the right to remain silent," but rather expressions of Mims's frustration at Detective Hadley for continuing to question him about the shooting and for failing to accept the explanation Mims gave in the hospital. (Williams, supra, 49 Cal.4th at p. 434.) Numerous cases addressing similar statements support our conclusion. (Ibid. [" 'I don't want to talk about it,' " was not "an unambiguous invocation of the right to remain silent"]; People v. Martinez (2010) 47 Cal.4th 911, 946 [" 'That's all I can tell you' " and " 'I don't want to talk anymore right now' " were not unambiguous statements invoking right to terminate questioning].) For example, in Thomas, supra, 211 Cal.App.4th at p. 1006, the appellate court concluded the defendant's statement to the detectives, " 'I ain't talking no more and we can leave it at that' " was "not an unambiguous invocation of his right to remain silent" but rather "an expression of momentary frustration" at the detectives questioning him. The same is true here.
We conclude Mims did not unambiguously invoke his right to remain silent and the court properly denied his motion to exclude certain statements made during the custodial interview. (Thomas, supra, 211 Cal.App.4th at p. 1007.) Having reached this conclusion, we need not address the issue of prejudice.
Mims's reliance on People v. Smith (1995) 31 Cal.App.4th 1185 is misplaced. There, the issue was whether the defendant invoked his right to counsel. (Id. at p. 1190, fn. 4.) Smith has no application here.
II.
Mims Cannot Establish Trial Counsel Rendered
Ineffective Assistance
Mims contends trial counsel rendered ineffective assistance by failing to stipulate Mims was a convicted felon, and by failing to object to certain gang-related evidence.
A. Pretrial Motions
Before trial, Mims moved "to prohibit the prosecutor's presentation of all potential gang evidence disclosed to the defense, to exclude overly prejudicial and inflammatory portions of the gang evidence, and to place limitations on the gang expert's testimony." Defense counsel emphasized the volume of discovery received, including hundreds of pages of police and jail incident reports, videos, photographs, Facebook records, cell phone records, and recordings of Mims's jail phone calls. Defense counsel sought to compel the prosecution to identify which evidence its gang expert would rely upon, and for an Evidence Code section 402 hearing "to ensure that any gang related testimony is significantly more probative than prejudicial, and is relevant to the offenses and dates at issue in this case." Mims's counsel also moved the court to require the prosecutor to stipulate Deep C is a criminal street gang and to exclude certain gang related testimony.
At a hearing, defense counsel reiterated the volume of the gang evidence, emphasized the prejudicial impact of such evidence, and requested an Evidence Code section 352 hearing if the prosecutor "intend[ed] to put on all of the gang evidence" it had provided during discovery. Counsel explained she wanted "to be in a position where [she] can object before the jury sees [the evidence] rather than after." In response, the court concluded the gang evidence was relevant to the gang enhancement allegations and told defense counsel: "[i]f at some point, you believe something is so prejudicial, you will have to make an objection at that time."
In another motion, defense counsel moved to exclude evidence of Mims's possible involvement in the murder of Orlando Yancey, and Mims's text messages regarding gun sales. The court excluded evidence of the Yancey murder, finding it "highly prejudicial" and "speculative" but reserved decision on the text messages until it had "actually seen" the messages. Later, the court denied the motion to exclude the text messages, concluding they were relevant to the gang's predicate acts and primary activities.
The originally-assigned judge was replaced because of an unexpected medical matter. At a pretrial hearing held before another judge, defense counsel again asked the court to perform a "gatekeeping function" because the volume of gang evidence was "prejudicial." The court noted it understood its "gatekeeping function" and observed it did not "want the jury to believe that it's a really good idea to convict Mr. Mims, not because the evidence is so strong against him, but because there is all of this other information that easily and clearly establishes the existence of the Deep C gang and all of it is—activities to the point where somebody would conclude that anybody associated with that group is going to get convicted no matter what the evidence of the substantive crimes are."
The court referenced certain categories of evidence, including the predicate act evidence and photographs from Mims's cell phone. The court said, "I can't tell you what the rulings [are] going to be except on an exhibit-by-exhibit, witness-by-witness, question-by-question basis." Defense counsel responded that making such objections before the jury would give the jurors "the impression" she was "trying to hide evidence" or "hide the ball from them." The court disagreed, explaining: "if you are raising objections [and a] substantial amount of evidence is being excluded, the jury might get the idea that [the prosecutor] is overplaying his hand, and is overbearing and trying to load the jury up with . . . evidence that suggests guilt by association without having much to say in the way of actual evidence that proves the charges."
The court held an Evidence Code section 402 hearing on the prosecution's gang expert and found the witness qualified to offer expert testimony.
B. Trial Evidence
Defense counsel did not object to the following evidence offered by the prosecution at trial:
1. Mims's 2009 Adjudication
The prosecution offered evidence of Mims's 2009 felony adjudication for assault with a firearm. When Mims was 15 and in the Deep C gang, he shot a rival gang member. According to the prosecution's gang expert, "Mr. Mims and Mr. Wise were on a bus together in Central Richmond. Mr. Mims stepped off the bus as it came to a stop and opened fire into the bus, striking Mr. Wise as well as another female." A police officer interviewed Mims, who claimed he did not have a gun on the day of the shooting. Later, Mims said he shot the gun in self-defense. Eventually, Mims told the officer he shot Wise because he felt disrespected when Wise did not return a high five.
2. Predicate Acts of the Deep C Gang
The prosecution introduced evidence of eight convictions, including Mims's 2009 adjudication, to show the existence of the Deep C gang and its pattern of criminal activity. In six convictions, Deep C members shot at rival gang members or their relatives.
3. YouTube Video and Rap Songs
The prosecution played a YouTube video of Deep C members. Mims does not appear in the video, but another person says "Free Bubba"—Mims's gang moniker—and mentions Wise, the victim of appellant's 2009 shooting, "snitching on Bubba." In the video, a person says that when "Bubba" returns, they will be "waking it up," or committing shootings for the gang. The prosecution also played three rap songs found on Mims's phone. "Bitch tha Squad" referred to rival gang members, firearms, and subgroups of Deep C. The second song's title, "Bubba Sparks," meant "Bubba" was going to "spark," or shoot a gun. The song also referenced the shooting of North Richmond gang members in a church, one of the predicate acts admitted to establish the gang enhancement allegations. The third song, "GSF"—which stands for "Good Squad Family" or "Goons Shoot First"—referenced drive-by shootings, firearms, gang territories and Deep C subsets.
After the prosecution played the third song, the court held a sidebar conference, where it allowed the prosecution to play only "one additional audio file." The court noted defense counsel had not made a "specific objection" to the rap songs, but that it would exclude any additional audio files sua sponte pursuant to Evidence Code section 352.
4. Photographs and Social Media Messages
The prosecution offered 20 photographs found on Mims's cell phone. Taken in the six months preceding the shooting, the photographs depicted Mims and other Deep C members making gang signs. The prosecution also introduced messages from Mims's Facebook page. About a month before the incident, Mims posted about "riding for yall," which means going out and shooting for his gang. Five days after the incident, Yates communicated with Mims about the shooting. Several days later, a North Richmond gang member messaged Mims, and took credit for shooting him. Other Facebook messages related to Deep C and gang shootings. Defense counsel introduced certain Facebook messages to support Mims's self-defense claim, including messages portraying Yates as an unsympathetic victim, and a photograph from Mims's Facebook account to try to demonstrate he was not affiliated with Deep C in July 2012.
C. New Trial Motion
Represented by new counsel, Mims moved for a new trial, claiming trial counsel was ineffective for: (1) not objecting to the admission of the rap songs; and (2) failing to "exclude or sanitize" Mims's 2009 adjudication. In opposition, the prosecution argued trial counsel objected to the rap songs, and that the songs were relevant to show Mims's affiliation with Deep C and to rebut Mims's claim that he was not a gang member and that he acted in self-defense. The prosecution also claimed trial counsel objected to Mims's juvenile adjudication and the court properly admitted the evidence.
The court denied the new trial motion, concluding it would have admitted the rap songs over an objection, and that any assumed failure to object was not ineffective. It also determined Mims's prior conviction was relevant "to the felon in possession charge, . . . and also as a demonstration of Mr. Mims' possible intent here at the time of the offense. [¶] And so it was admissible for a variety of different reasons, including proof of [his] membership in the gang in the face of his denial that he currently had any affiliation with a gang."
The court noted there were "differing points of view as to what sorts of objection [defense counsel] raised and when she raised them. But in any event, assuming for the sake of argument [defense counsel] would have objected, I still would have admitted [the rap songs]."
D. Mims Cannot Establish Ineffective Assistance of Trial Counsel
To establish ineffective assistance, Mims must demonstrate trial " 'counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and there is a reasonable probability that, but for counsel's unprofessional errors and/or omissions, the trial would have resulted in a more favorable outcome.' " (People v. Carrasco (2014) 59 Cal.4th 924, 982.) A " ' " 'reasonable probability is defined as one that undermines confidence in the verdict.' " ' " (Ibid.) The California Supreme Court has held " ' "that '[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,' the claim on appeal must be rejected." ' " (Ibid.) We " 'need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.' " (Ibid.)
1. Failure to Stipulate to the 2009 Adjudication
Mims contends trial counsel was ineffective for failing to stipulate to the 2009 adjudication as an element of possession of a firearm with a prior juvenile adjudication (§ 29820 (Count 9)). According to Mims, the failure to stipulate was "disastrous" because it allowed the prosecution to introduce evidence of his "wanton act of violence." "[W]hen an element of a charged offense requires proof that the defendant has a felony conviction, and the defendant offers to stipulate to the prior conviction, it is error to inform the jury either of the fact that the defendant has a prior felony conviction or the nature of the felony." (People v. Sapp (2003) 31 Cal.4th 240, 261.) However, a prior conviction is admissible notwithstanding an offer to stipulate when the conviction is relevant to other disputed issues in the case, such as identity, intent, or motive. (People v. Calderon (1994) 9 Cal.4th 69, 78.)
Here, the 2009 adjudication was relevant to Mims's self-defense claim, and to establish his motive to shoot Harris and Yates. (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1212 [prior conviction relevant to prove the defendant's intent and motive]; People v. Frausto (1982) 135 Cal.App.3d 129, 140 [gang evidence was admissible as to motive]; People v. Ewoldt (1994) 7 Cal.4th 380, 402, superseded by statute on other grounds in People v. Robertson (2012) 208 Cal.App.4th 965, 991 [" 'recurrence of a similar result' " tends to negate self-defense, and to establish criminal intent].) As Mims concedes, the conviction was relevant to establish a predicate act for the section 186.22 gang enhancement. (People v. Ortiz (1997) 57 Cal.App.4th 480, 484.) Counsel was not ineffective for failing to stipulate to Mims's prior adjudication.
Mims's claim fails for the additional reason that defense counsel may have had strategic reasons not to stipulate. "When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation." (People v. Anderson (2001) 25 Cal.4th 543, 569 (Anderson).) Here, trial counsel might have feared a jury which learned only Mims had been convicted of a felony would imagine that the felony was more serious than assault with a firearm.
Nor was counsel ineffective for failing to move to exclude the prior adjudication. As discussed above—and as the trial court concluded in denying Mims's motion for new trial—the prior conviction was relevant. The prior conviction was not unduly prejudicial (Evid. Code, §352; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1170 (Samaniego) [where gang evidence was central to the case, it was "doubtful that many Evidence Code section 352 objections would have been sustained"].) "Failure to raise a meritless objection is not ineffective assistance of counsel." (People v. Bradley (2012) 208 Cal.App.4th 64, 90.)
2. Predicate Acts Evidence
Next, Mims claims trial counsel was ineffective for failing to object to the predicate acts of the Deep C gang. We are not persuaded. "[F]ailure to object is a matter of trial tactics" and we will "not second-guess trial counsel's reasonable tactical decisions." (People v. Kelly (1992) 1 Cal.4th 495, 520 (Kelly).) Here, the record "strongly suggests a reasonable explanation for the failure to object" at trial: defense counsel did not want the jury to think she was trying to hide evidence from it. (Ibid.) Defense counsel may have also feared objecting would "draw closer attention" to the evidence. (People v. Ghent (1987) 43 Cal.3d 739, 773; People v. Hart (1999) 20 Cal.4th 546, 631 [counsel could have reasonably concluded "challenging the evidence more vigorously . . . risked alienating the jury"].) Mims has not demonstrated trial counsel was ineffective for failing to object to the predicate acts evidence at trial. (Samaniego, supra, 172 Cal.App.4th at p. 1170 [rejecting claim of ineffective assistance of counsel premised on failure to object to gang evidence].)
Mims's claim fails for the additional reason he cannot establish prejudice. The evidence supporting the convictions was strong. Mims bragged about his willingness to commit shootings for his gang, and then traveled with a gun to rival gang territory in a stolen car. Mims deactivated his cell phone to evade detection from the police, and lied to police about the incident. The car used during the shooting was found abandoned and burned. "[A]n accused's efforts to suppress evidence against himself indicate a consciousness of guilt." (People v. Vines (2011) 51 Cal.4th 830, 867.) The evidence supporting Mims's self-defense claim—that he was a target of a rival gang for a shooting that occurred three years earlier—was comparatively weak. Additionally, the court instructed the jury on the limited purposes for which the gang evidence could be considered (CALCRIM No. 1403), specifically: "You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime." We presume the jury followed the instruction. (People v. Pearson (2013) 56 Cal.4th 393, 414.)
3. Rap Songs
Mims argues trial counsel rendered ineffective assistance by failing to object to three rap songs played for the jury. According to Mims, the rap songs were not probative and the "lyrics were highly inflammatory." Mims has not demonstrated trial counsel's performance was deficient. As discussed above, "the failure to object rarely establishes ineffectiveness of counsel." (Kelly, supra, 1 Cal.4th at p. 540.) "[C]ompetent counsel may often choose to forgo even a valid objection. '[I]n the heat of a trial, defense counsel is best able to determine proper tactics in the light of the jury's apparent reaction to the proceedings. The choice of when to object is inherently a matter of trial tactics not ordinarily reviewable on appeal.' " (People v. Riel (2000) 22 Cal.4th 1153, 1197.) On the record before us, "we cannot eliminate the probability that defense counsel had valid tactical reasons for not objecting" to the songs, particularly where counsel indicated a concern that objecting at trial could alienate the jury. (People v. Jones (2009) 178 Cal.App.4th 853, 860.)
Additionally, any objection to the rap songs would have been futile. In denying the new trial motion, the court determined the songs were relevant and admissible, irrespective of an objection from the defense. We agree. The songs, which were found on Mims's phone and referred to Deep C, tended to establish his membership in the gang and his motive for shooting Harris and Yates. (See People v. Zepeda (2008) 167 Cal.App.4th 25, 32-35 [trial court properly admitted songs showing motive and intent to kill rival gang members]; People v. Olguin (1994) 31 Cal.App.4th 1355, 1373 [rap lyrics tending to show defendant's gang membership were relevant where crime was gang-related]; People v. Singh (Aug. 2, 2017, C075295) — Cal.App.5th —, [2017 WL 3276227] [rap lyrics found in the defendant's home were relevant to his intent to kill].) Trial counsel "is not required to proffer futile objections." (Anderson, supra, 25 Cal.4th at p. 587.) Mims has not demonstrated trial counsel was ineffective for failing to object to the rap songs. And, for the reasons discussed above, Mims cannot demonstrate prejudice from the failure to object.
Mims relies on State v. Skinner (N.J. 2014) 95 A.3d 236, where the New Jersey Supreme Court concluded violent and profane rap lyrics written by the defendant were improperly admitted because they were highly prejudicial and bore little or no probative value as to the defendant's motive or intent in the charged crime. (Id. at pp. 238-239.) Mims's reliance on Skinner does not assist him. We are not bound by the decisions of courts of another state. (Amerigraphics, Inc. v. Mercury Casualty Co. (2010) 182 Cal.App.4th 1538, 1553.) In California, "where evidence of gang activity or membership is important to the motive, it can be introduced even if prejudicial" and California courts have upheld the use of rap lyrics under similar circumstances. (People v. Martin (1994) 23 Cal.App.4th 76, 81)
4. Photographs and Social Media Messages
According to Mims, trial counsel was ineffective for failing to object to pictures found on his cell phone and to messages posted on his Facebook account. For the reasons discussed above we reject this claim; we conclude trial counsel's performance was not deficient, and that Mims was not prejudiced.
We have considered and rejected Mims's alternative claim that the court erred by admitting the gang evidence.
III.
The Court Did Not Err by Instructing the Jury
with CALCRIM No. 3472 and Any Assumed Error Is Harmless
Mims contends the court erred by instructing the jury with CALCRIM No. 3472, which provides: "A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force." According to Mims, the instruction misstates the law of self-defense. Several courts have rejected this argument and have held the instruction correctly states the law. (People v. Eulian (2016) 247 Cal.App.4th 1324, 1332 (Eulian); People v. Enraca (2012) 53 Cal.4th 735, 761.)
Contrary to Mims's claim, the evidence supported the instruction. (Eulian, supra, 247 Cal.App.4th at p. 1334.) Ample evidence demonstrated Mims did not act in self-defense: (1) before the shooting, Mims posted on social media that he intended to commit shootings for his gang; (2) he deactivated his cell phone and traveled to rival gang territory with a gun, in a stolen car; (3) Mims lied to police about the incident and claimed he did not shoot back; and (4) he shot a rival gang member in 2009 and fabricated a self-defense claim. Even if we assume the court erred in giving the instruction, there was no prejudice under state or federal law. (Id. at p. 1335.) Under the circumstances discussed above, any error in giving the instruction was "merely technical and not grounds for reversal." (Ibid.)
Additionally, the jury was instructed to disregard instructions that had no application. We reject Mims's reliance on People v. Ramirez (2015) 233 Cal.App.4th 940. (See Eulian, supra, 247 Cal.App.4th at p. 1334.)
We reject Mims's cursory cumulative error claim. We have rejected Mims's claims on the merits and have found only one error. We concluded that error was harmless. Mims's cumulative error claim fails because there is "nothing to cumulate." (People v. Duff (2014) 58 Cal.4th 527, 562; People v. Poletti (2015) 240 Cal.App.4th 1191, 1216.)
DISPOSITION
The judgment is affirmed.
/s/_________
Jones, P. J. We concur: /s/_________
Simons, J. /s/_________
Bruiniers, J.