Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F06960
ROBIE, J.
A jury found defendant Shawn Douglas Moore guilty of attempted murder and attempted robbery and found firearm use enhancements to be true in connection with both counts. Sentenced to state prison, defendant appeals, contending the prosecutor committed prejudicial misconduct in pressuring a witness to testify in conformance with his prior statement to police and the trial court abused its discretion in denying defendant’s new trial motion based on this ground. Defendant also contends the trial court erroneously concluded that Penal Code section 654 did not preclude a concurrent sentence for attempted robbery. We reject defendant’s contentions and will affirm the judgment.
All further section references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On April 17, 2007, several teenage boys approached the victim who was selling ice cream from a cart near Fruitridge Community Center and demanded money. Two of them hit the victim in the back of the head. The victim threw $15 to $20 on the ground and started to run away. Another one shot the victim twice, once in the stomach and once in the chest. The victim had surgery for his injuries, both of which were potentially life threatening. The victim was unable to identify his assailants but claimed the group approached him after getting out of two cars. The victim described the shooter to officers as being dark skinned or tan colored with wavy hair. At trial, the victim denied having attacked anyone or that he had tried to defend himself. A knife was photographed at the scene near the victim’s cart but the knife was never booked into evidence.
Meuy Saechao saw the boys beating the victim while one of the boys stood by with a gun. When the victim fell and tried to get up, the boy with the gun aimed it and shot the victim twice. Saechao ran away after the first shot and, after the second shot, the gunman ran along with her in the same direction. He told her not to be afraid. Saechao identified defendant as the shooter from a photo lineup and at the preliminary hearing. She was unable to identify any of the other boys.
At trial, Saechao testified but became gravely ill and did not complete her testimony. Her trial testimony was stricken and her preliminary hearing testimony was read into the record.
Alejandro Juarez heard two gunshots, saw the victim fall, and the gunman run by Saechao. Juarez saw the gunman pause near Saechao and heard him tell her not to be scared. Juarez described the gunman as light skinned or white, tall, chubby, bald or short hair, with a goatee. Juarez identified defendant as the gunman from a photo lineup. Juarez saw a red car pick up some boys and possibly defendant.
Fernando Ramirez-Garcia who planned to purchase ice cream for his son saw five boys surround the victim and demand money. The victim pulled out a knife. Ramirez-Garcia heard two gun shots and he and his son ran away. The five boys ran through the community park by Ramirez-Garcia. Three boys got into a purple car being driven by a woman. Ramirez-Garcia believed all the boys were Hispanic except for one who was either black or dark-skinned Hispanic.
When Enil O. was arrested a month later on suspicion of another offense, officers found the gun used on the victim near a garbage can. Enil told officers that he had put the gun in the can. Later, he claimed that he lied and that Craig R. put the gun in the can. When officers arrested Enil, the officers saw Craig R. in the area. Craig R. weighed 200 pounds, wore braids and was black/Hispanic. Enil admitted that he sold drugs.
Two days after the shooting, a detective interviewed the victim at the hospital but did not have a Spanish-speaking interpreter. The detective stated that the victim claimed that the group of boys included several whites, one Chinese and one black and that the black male shot him. The victim described the shooter as 28 years old, with a short Afro, small mustache, 5 feet 10 inches to 6 feet tall, with a medium build and complexion. The description did not match defendant. After Enil was arrested, the detective showed photo lineups to the victim. The lineups included Enil’s and defendant’s photos, neither of whom is African-American, and the victim picked neither. The victim clarified through an interpreter that the shooter had tan skin and was not African-American. Defendant is Hispanic.
A complaint filed in July 2007 charged defendant and Enil with the same charges against the victim. Later charges against Enil in adult court were dropped and refiled in juvenile court.
In October 2007, the prosecutor in juvenile court offered, and Enil accepted, a plea agreement to second degree robbery and an attempted murder allegation was dismissed in exchange for his truthful testimony at defendant’s trial.
At trial, Enil claimed he was at the community park with Jorge C., Nicholas D., Alfonse R., and Devon (no last name stated). Enil testified on direct examination that he had lied to officers when he identified defendant as the shooter. Instead, Enil claimed that defendant was not present at the park and that Devon, who was black, was the shooter. When the prosecutor asked Enil about his involvement, Enil’s attorney, Kevin Adamson, interrupted and requested a short break, explaining to the court, outside the jury’s presence, that Enil was implicating himself in the crime and that he should be advised to assert his Fifth Amendment privilege.
The court excused the jury. Enil remained. Attorney Adamson then further explained that there was a plea agreement and that Enil’s testimony violated the plea agreement, that attempted murder charges may be reinstated, and Enil would be advised to assert his right to remain silent. The prosecutor responded that there was an agreement but it appeared that Enil had changed his mind, noting that there had been threats from other people. The prosecutor agreed that Enil had violated the agreement and commented that “unless he agrees to tell the truth at this point, we will pull whatever agreement we have and reinstate charges and deal with him as if this never happened.” Counsel for defendant stated that the agreement provided for Enil to tell the truth and if he failed to do so the attempted murder and robbery would be reinstated but that none of the attorneys knew whether Enil was telling the truth at trial in full compliance with the agreement. The court recessed to allow Enil to speak with his attorney.
When the court reconvened with counsel, defendant, and Enil, the court noted that as Enil entered the courtroom before initially testifying and identifying Devon as the shooter, Enil “sat down, he look[ed] at defendant, made a fist with his left hand and tapped his fist two times on his chest.” After speaking with Adamson during the recess, the court noted that Enil looked at defendant and said, “I’m sorry.” After Adamson spoke with the prosecutor, Enil then spoke with the prosecutor in Adamson’s presence. The jury returned to the courtroom.
The prosecutor began by asking Enil, “[A]re you ready to tell the truth?” After the court overruled defendant’s counsel’s objection on the ground that the question was argumentative, Enil responded, “Yes, sir.” He explained that he had lied when he first began testifying because he was afraid for his family and he had been threatened by defendant and others in juvenile hall. Enil testified that Devon was not the shooter. On the day of the shooting, Enil explained that defendant had asked the group of boys if they dared him to rob the “paisa.” Defendant, with his hand behind his back holding a gun, and Enil approached the victim and demanded his money. Defendant pistol-whipped the victim and Enil hit the victim in the back of the head. The victim pulled out a knife and cut Enil slightly on his abdomen. Enil hit the victim again and kicked at the knife when the victim was on the ground. Enil missed and the knife slightly cut Enil’s shin. Defendant pushed Enil aside and shot the victim twice. Enil and defendant ran. Enil claimed that they did not get any money from the victim.
Nicholas D. testified that he was playing basketball at the community center when he heard the gunshots. He looked up and saw a black man shooting. Nicholas claimed defendant was not in the park.
A probation aide testified that she heard Nicholas tell his roommate at the institution that he and others were “going to get” Enil for “snitch[ing]” on defendant, that defendant became angry when the victim tried to stab Enil, and that defendant shot the victim.
The defense called several witnesses who had been in the park, heard gunshots, and saw teenagers running in the park, including a black teenager. None of the witnesses saw a gun in anyone’s hand.
Defendant made a motion for a new trial based on prosecutorial misconduct. Defendant claimed the prosecutor had stood within two feet of Enil, used an objectionable tone of voice with Enil, and asked more than once whether he was ready to tell the truth. Defense counsel sought to question the prosecutor under oath as to what he had said to Enil. The prosecutor disputed defense counsel’s version of what had transpired. The court denied defense counsel’s request to call the prosecutor to testify and chastised defense counsel for attacking the integrity of the court, noting that it had ruled and instructed the jury as to what had transpired. The court concluded “beyond all doubt” that there was no prosecutorial misconduct. Finding “beyond a reasonable doubt” that the result would have been the same “[e]ven if... by some stretch of the imagination” there had been prosecutorial misconduct, the court denied defendant’s new trial motion, noting that Enil’s prior statement wherein he identified defendant as the shooter would have been admitted.
DISCUSSION
I
Motion For New Trial Based On Prosecutorial Misconduct
Defendant contends that the trial court erroneously denied his motion for a new trial sought on the grounds of prosecutorial misconduct. Defendant contends that the prosecutor verbally enforced an agreement with Enil O. by threatening Enil and using “subterfuge” to evade the rule set forth in People v. Medina (1974) 41 Cal.App.3d 438. Defense counsel also contends Enil’s testimony was “‘tainted beyond redemption’” because he was expected to testify in conformance with his prior statements without regard to the truth and if his testimony deviated from those statements, the plea agreement would be repudiated. We conclude that the prosecutorial misconduct claim is forfeited and, thus, denial of the motion for new trial on this basis was not an abuse of discretion.
We review the trial court’s denial of a new trial motion for abuse of discretion. (People v. Ochoa (1998) 19 Cal.4th 353, 473.) “A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.” (People v. Morales (2001) 25 Cal.4th 34, 44.)
To raise a claim of prosecutorial misconduct on appeal, a defendant must make “‘a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury’” unless “(1) the objection and/or the request for an admonition would have been futile, or (2) the admonition would have been insufficient to cure the harm occasioned by the misconduct.’” (People v. Panah (2005) 35 Cal.4th 395, 462.)
Defendant’s claim based on the prosecutor’s questioning of Enil is forfeited because defense counsel failed to timely object on the grounds now asserted when the prosecutor asked Enil, “Are you ready to tell the truth?” Defense counsel only objected that the question was argumentative. During her cross-examination of Enil, defense counsel insinuated that the prosecutor had threatened Enil and the prosecutor objected to defense counsel’s line of questioning, resulting in the court’s instruction to the jury concerning what had transpired during the recess.
Defendant’s motion for a new trial asserted prosecutorial misconduct in his questioning of Enil, claiming that the prosecutor verbally enforced the plea agreement by threatening Enil, having repeatedly asked if Enil was ready to tell the truth while standing within two feet of him. Defense counsel added for the first time that the prosecutor used an objectionable tone of voice. Defense counsel also claimed Enil’s testimony was “tainted beyond redemption” because he was expected to testify in conformance with his prior statements without regard to the truth and if his testimony deviated from those statements, the plea agreement would be repudiated. “[E]vidence which is produced by coercion is inherently unreliable and must be excluded under the due process clause.” (People v. Lee (2002) 95 Cal.App.4th 772, 786-787, italics & fn. omitted.) But defendant does not cite to the record where defense counsel made this claim prior to the motion for a new trial; during trial, defense counsel did not move to exclude Enil’s testimony identifying defendant as the shooter based on an alleged Medina violation. The prosecutorial misconduct claim is forfeited, and, therefore, there was no abuse of discretion in denying the new trial motion.
“In Medina, the Court of Appeal held that ‘a defendant is denied a fair trial if the prosecution’s case depends substantially upon accomplice testimony and the accomplice witness is placed, either by the prosecution or the court, under a strong compulsion to testify in a particular fashion.’ [Citation.] We have since observed that when an ‘accomplice is granted immunity subject to the condition that his testimony substantially conform to an earlier statement given to police [citation], or that his testimony result in the defendant’s conviction [citation], the accomplice’s testimony is “tainted beyond redemption” [citation] and its admission denies the defendant a fair trial.’ [Citation.] But ‘an agreement requiring only that the witness testify fully and truthfully is valid.’ [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 594.) Defendant does not take issue with the plea agreement. He does not contend that the agreement improperly coerced Enil to testify in accordance with his prior statement to law enforcement.
II
The Section 654 Issue
The trial court imposed a state prison sentence of 32 years to life, that is, a seven-year term for attempted murder and a 25-year-to-life term for the accompanying firearm enhancement and a concurrent term for attempted robbery and its accompanying firearm enhancement, rejecting defendant’s claim that section 654 barred concurrent sentencing. On appeal, defendant renews his claim that section 654 applied.
In his opening brief, defendant claims the court found that the acts constituted an indivisible course of conduct. In his reply brief, defendant recognizes that he misread the record.
Section 654, subdivision (a) provides, in pertinent part, that “[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” Section 654 therefore ‘“precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts. ‘Whether a course of criminal conduct is divisible... depends on the intent and objective of the actor.’ [Citations.] ‘[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.’ [Citation.]” [Citation.]’ [Citations.] However, if the defendant harbored ‘multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]’ [Citations.]” (People v. Jones (2002) 103 Cal.App.4th 1139, 1142-1143.) The trial court has broad discretion to determine whether section 654 applies and its findings, express or implied, will be disturbed on appeal only if no substantial evidence supports them. (Jones, at p. 1143.)
Arguing that section 654 applies, defendant contends he had only one intent and objective, that is, to rob the ice cream man. Defendant disagrees with the People’s claim that the evidence supported the trial court’s implied finding that the shooting was an independent and gratuitous act of violence.
An act of “gratuitous” violence may be viewed as an act not incidental to robbery for the purposes of section 654. (See, e.g., People v. Cleveland (2001) 87 Cal.App.4th 263, 271-272 [gratuitous beating of a feeble, 66-year-old nonresistant robbery victim was not committed with the same objective as the robbery].) The People cite People v. Nguyen (1988) 204 Cal.App.3d 181 in which the trial court imposed consecutive sentences for attempted murder and robbery. The trial court rejected the defendant’s claim that section 654 applied. The trial court concluded that the jury’s finding, that is, the shooting was a consequence of the robbery, “determined only that Nguyen was an aider and abettor in the attempted murder.” (Nguyen, at p. 190.) Nguyen concluded that the accomplice’s shooting of the unresisting store clerk was sufficiently divisible from the robbery to justify multiple punishments. (Id. at pp. 190-191.)
People v. Jenkins (1987) 196 Cal.App.3d 394, disapproved on another ground in People v. Brown (1993) 6 Cal.4th 322, 336, footnote 12 and People v. Sandoval (1994) 30 Cal.App.4th 1288 are also instructive as each case involves a robbery and a gratuitous nonfatal assault. In Jenkins, the court imposed consecutive sentences for robbery and assault with a deadly weapon. The court rejected the defendant’s claim that section 654 applied. The defendant shot at the victim once before the defendant obtained the money he had demanded and again after he obtained the money. Substantial evidence supported the court’s finding that the second shot was a gratuitous act of violence. (Jenkins, at pp. 397-398, 405-406.)
In Sandoval, the defendant was sentenced consecutively for attempted robbery and attempted murder of the same person. The defendant argued section 654 applied since he had one intent and objective, to obtain money. Sandoval disagreed, noting the attempted robbery was complete when the victim refused to hand over the money. The defendant then shot the victim to punish the victim. (People v. Sandoval, supra, 30 Cal.App.4th at pp. 1298-1300.) Sandoval concluded, “‘[A] separate act of violence against an unresisting victim or witness, whether gratuitous or to facilitate escape or to avoid prosecution, may be found not incidental to robbery for purposes of section 654.’” (Sandoval, at p. 1300.)
Here, the victim testified that he threw the money on the ground and tried to run away but then defendant shot him, not once but twice. Enil testified that they demanded the victim’s money and defendant pistol-whipped the victim who fell to the ground. The victim pulled out a knife and tried to stab Enil. Defendant pushed Enil out of the way and shot the victim twice as the victim tried to get up. Defendant told Enil that he (defendant) had shot the victim for Enil.
The evidence supports the trial court’s conclusion that section 654 did not bar concurrent sentencing. Defendant’s act of shooting the victim was an independent and gratuitous act of violence.
DISPOSITION
The judgment is affirmed.
We concur: HULL, Acting P. J., BUTZ, J.