Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles, Super. Ct. No. VA083027, Thomas I. McKnew, Jr., Judge.
Stephen Temko, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, David A. Wildman, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Edwin Makee Moss shot Darryl Thompson three times in the back of the head, killing him. Moss appeals his conviction, by jury, of first degree murder and personally discharging a firearm in the commission of that crime. (Pen. Code, §§ 187, 189, 12022.53, subd. (b)-(d).) The trial court sentenced appellant to a term in state prison of 50 years to life. Appellant contends that his trial counsel was ineffective because counsel did not object to evidence of his association with a street gang, that the prosecutor committed misconduct by referring to his gang associations, and that the trial court erred when it failed sua sponte to instruct the jury on heat of passion manslaughter. He contends these errors cumulated to his prejudice. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
Facts
For most of his life, appellant lived at the corner of 82nd and Hooper Streets in Los Angeles. A street gang known as the Kitchen Crips was prominent in the neighborhood. Appellant attended Catholic schools from kindergarten through high school. He testified that he never joined the gang, but many of his friends did and he continued to associate with those friends. In 2003, when appellant was about 24 years old, he bought a used car from Rocky Lee, a member of the Kitchen Crips. Appellant discovered the car had been stolen when he was unable to register it at the DMV. The police confiscated the car. Lee refused to return appellant's money. This ignited a feud of sorts between appellant and Lee. In May 2003, the two engaged in a fist fight. Appellant testified that he was afraid of Lee because of Lee's gang membership.
In March 2004, appellant was living in a garage apartment across the street from the house in which he grew up. Darryl Thompson, a Kitchen Crips member, accosted appellant at his apartment. Pointing a gun at appellant, Thompson told him, "[W]hen [you] have a problem with one of [my] homies, [you] got a problem with [me]." Appellant told Thompson he didn't have any problems with Thompson's "homies," but Thompson continued to aim the gun at him. Appellant ran and hid. Thompson fired at him several times but missed, leaving bullet holes in the garage door and other areas of the garage. Thompson eventually left in Lee's car. Police officers arrived 10 or 15 minutes later to question appellant about the gunshots. Appellant told the officers that he did not know who shot at him.
Thompson went to a neighborhood pool hall where he bragged about the shooting and stashed the gun. Police soon arrived. They arrested Thompson and recovered the gun. The next day, Lee called appellant and asked what he told the police. Appellant said he hadn't told the police anything. Later that day, four Kitchen Crips arrived at appellant's apartment. They called him a snitch and beat him up. Two weeks later, in April 2004, appellant moved out of the neighborhood. He continued to visit periodically. Appellant saw Thompson a couple of times but they had no direct contact with each other.
On May 22, there was a yard sale at a house on the opposite corner from appellant's former garage apartment. Neighbors heard Thompson exchanging words with someone across the street but testified that Thompson never turned to confront the other person. There was no argument or yelling immediately prior to the shooting. Thompson walked into the yard, joked with some children who were playing in the yard and looked through the items for sale. He was looking at himself in a mirror that was for sale when appellant ran up behind him and shot him three times in the back of the head. Thompson fell to the ground. Appellant ran down an alley.
Although appellant initially denied any involvement, he eventually admitted to police that he was the shooter. Appellant said that he was driving down the street in his own truck when he saw Thompson lurking behind a truck that was parked on the street next to the yard sale. Appellant got out of his truck with his handgun. Thompson yelled at him, calling him a snitch and threatening to "get" him. Then he walked to the yard sale. Appellant followed. He shot Thompson because he was terrified of Thompson. He believed that, eventually, Thompson was going to kill him.
Discussion
Ineffective Assistance of Counsel
Appellant contends his trial counsel rendered ineffective assistance at trial because counsel did not object to the admission of evidence that appellant was a member or associate of the Kitchen Crips street gang. The contention focuses on the cross-examination of a character witness, Kendric Knox, who was appellant's high school football coach. Knox testified that he knew appellant to be a "peacemaker," a good student and an athlete. He stated during cross examination that it would surprise him to learn appellant claimed to be a member of the Kitchen Crips. The subject also arose during appellant's own testimony. Appellant admitted that he used and sold marijuana, sometimes to gang members. On cross-examination, he denied that he claimed to be a member of Kitchen Crips during two separate encounters with sheriff's deputies. In its rebuttal case, the prosecution called the sheriff's deputies, who testified that appellant claimed membership in the Kitchen Crips during separate encounters in 2001.
The prosecutor also mentioned appellant's association with the Kitchen Crips during his closing argument. For example, he argued that appellant was not "just a good Catholic school boy . . . ." He was "at the very least . . . an associate of Kitchen Crip . . . ." Appellant stayed in the neighborhood, the prosecutor contended, because he was an associate of the gang and "[s]omebody made him feel like he was protected." The prosecutor also pointed out that, on two separate occasions, appellant had identified himself to law enforcement as a Kitchen Crip.
Appellant contends his trial counsel's failure to object to this evidence and argument amounted to ineffective assistance of counsel because evidence of his own gang membership was irrelevant and inflammatory. We are not persuaded.
To prevail on an ineffective assistance of counsel claim, appellant must demonstrate that the performance of his trial counsel fell below that of a reasonably competent attorney and that he was prejudiced by counsel's incompetence. Prejudice occurs when counsel's deficiencies " 'so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' " (People v. Mayfield (1997) 14 Cal.4th 668, 784, quoting Strickland v. Washington (1984) 466 U.S. 668, 686 [80 L.Ed.2d 674, 104 S.Ct. 2052].) In determining whether counsel was incompetent, we do not second-guess tactical decisions. (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) Counsel is not ineffective for failing to make objections or arguments that lack merit. (People v. Prieto (2003) 30 Cal.4th 226, 261.)
Here, the defense theory at trial was that appellant acted out of fear, to protect himself against Thompson and other members of the Kitchen Crips. Appellant emphasized Thompson's status as a gang member and his history of violent conduct. He placed his own character in issue by having Knox testify that, as a high school student, appellant was an even-tempered "peacemaker" who would not join a gang and who would not shoot at someone without good reason. The prosecution could lawfully rebut this evidence with evidence that appellant associated with and sold drugs to the very gang members he claimed to be terrified of. (People v. Jones (2003) 30 Cal.4th 1084, 1121.) Defense counsel was not ineffective for not objecting because the evidence was admissible and the prosecutor's closing argument was a fair comment on it. (Id.)
Moreover, there is no support in the record for appellant's contention that this evidence and argument were unfairly prejudicial to him. First, the evidence of appellant's guilt was overwhelming: he admitted the shooting. Second, in terms of gang association, appellant compared favorably to Thompson. The evidence showed that Thompson was a hard-core gang member who had violently assaulted appellant and then orchestrated, or at least approved, a violent reprisal against him for "snitching" about that assault. By contrast, the evidence showed that appellant was an associate of gang members who occasionally sold marijuana and had no history of violent behavior.
Prosecutorial Misconduct
Appellant contends the prosecutor committed misconduct when he argued that appellant was an "associate" of the Kitchen Crips and a "wanna-be" gang member. The argument is without merit. First, appellant waived this contention because he did object in the trial court. This is not a case, like People v. Hill (1998) 17 Cal.4th 800, 820, where the trial court's prior rulings and comments to the jury demonstrated that defense objections to improper comments by the prosecutor would have been futile. Here, the trial court maintained an appropriate neutrality. Appellant has not demonstrated that objections would have been futile. The issue has been waived.
Had the issue been preserved for review, we would reject it because no misconduct occurred. A prosecutor may vigorously argue his or her case, so long as the argument is focused on the evidence. (People v. Thompson (1988) 45 Cal.3d 86, 112-113.) There is no impropriety where the prosecutor encourages the jury to focus on evidence the prosecution believes is most relevant. (People v. Cummings (1993) 4 Cal.4th 1233, 1302, fn. 47.) Among other things, the prosecutor may properly point out that the defense is attempting to confuse the issues. (Id.) That is what occurred here. Appellant claimed to have been an innocent victim of gang harassment. The prosecutor argued in rebuttal that appellant was involved with the gang as an associate and may have felt protected by some gang members. There was evidence to support both inferences. Appellant admitted that he was friendly with gang members and sold marijuana to them. He returned to the neighborhood even after Thompson assaulted him at his apartment. The prosecutor's argument did not amount to misconduct.
Instructional Error
Consistent with the defense theory of the case, the trial court instructed the jury on the lesser included offenses of voluntary and involuntary manslaughter on an imperfect self defense theory. Appellant contends the trial court erred because it failed to instruct the jury, sua sponte, on "heat of passion" manslaughter. We conclude that, because there was no substantial evidence appellant acted in the heat of passion, the trial court had no obligation to instruct the jury on that theory of guilt. (People v. Manriquez (2005) 37 Cal.4th 547, 582; People v. Breverman 1998) 19 Cal.4th 142, 154.)
Manslaughter is a lesser included offense of murder. Where a defendant kills in the heat of passion on sufficient provocation, the killing lacks malice and is therefore manslaughter rather than murder. (People v. Manriquez, supra, 37 Cal.4th at p. 582.) The trial court must instruct on this lesser included offense if there is substantial evidence from which a jury comprised of reasonable people could conclude that it, rather than the greater offense of murder, was committed. (Id.)
"The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection." (People v. Lee (1999) 20 Cal.4th 47, 59.) Thus, the heat of passion requirement for manslaughter has both a subjective and an objective component. The defendant must actually, subjectively kill in the heat of passion, and the facts and circumstances creating that heat of passion must be " ' "sufficient to arouse the passions of the ordinarily reasonable man." ' " (People v. Manriquez, supra, 37 Cal.4th at p. 584;, quoting People v. Steele (2002) 27 Cal.4th 1230, 1252-1253, quoting People v. Logan (1979) 175 Cal. 45, 49.) In the absence of substantial evidence of both the subjective and objective components of heat of passion, the trial court has no obligation to instruct the jury on that theory of manslaughter. (People v. Manriquez, supra, 37 Cal.4th at p. 585.)
Here, there was no substantial evidence that appellant actually, subjectively acted in the heat of passion, or that the circumstances surrounding the killing were sufficient to cause a reasonable person to act in the heat of passion. Appellant testified that he was driving down the street when he saw Thompson standing behind a truck. Appellant got out of his truck already armed. Witnesses testified they heard Thompson yelling at someone but there was no confrontation, argument or yelling in the moments immediately before the shooting. According to appellant, Thompson called him a snitch and said he was going to "get" appellant. After this exchange, Thompson walked to the yard sale and started looking through the items that were for sale. He had time to make a few jokes with one of the children at the yard sale before appellant walked up behind him and fired three shots into the back of his head. There was no physical contact between the two men. They were not embroiled in a heated argument. Thompson's assault on appellant had occurred weeks earlier.
Even if we credit appellant's version of events, he did not act in the heat of passion. He had time to cool down and consider whether to shoot Thompson or to drive away. Appellant made a calculated decision to shoot Thompson. By his own admission he did not act in a rage, nor was there any immediate provocation for the shooting. As a consequence, the trial court had no duty to sua sponte instruct the jury on the heat of passion theory.
Cumulative Error
Appellant contends he was prejudiced by the cumulative effect of these errors. We reject the argument because there were no individual errors to accumulate.
Conclusion
The judgment is affirmed.
We concur:
GILBERT, P.J., COFFEE, J.