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People v. Nesbitt

California Court of Appeals, Second District, Fifth Division
Sep 29, 2008
No. B199379 (Cal. Ct. App. Sep. 29, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. SHERMAN TRUMELL NESBITT, Defendant and Appellant. B199379 California Court of Appeal, Second District, Fifth Division September 29, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. YA061924, James Brandlin, Judge.

Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Haman aka, Senior Assistant Attorney General, Susan D. Martynec and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.

ARMSTRONG, Acting P. J.

Appellant Sherman Nesbitt was convicted, following a jury trial, of three counts of assault with a firearm in violation of Penal Code section 245, subdivision (a)(2). The jury found true the allegation that appellant personally used a firearm in the commission of the assaults within the meaning of section 12022.5, subdivision (a) and inflicted great bodily injury on one of the victims within the meaning of section 12022.7, subdivision (a). The trial court found true the allegation that appellant had suffered a prior serious or violent felony conviction within the meaning of sections 667, subdivisions (b) through (i) and 1170.12 (the "Three Strikes" law). The court sentenced appellant to a total term of 22 years, 8 months in state prison, consisting of 13 years for the count 1 conviction and enhancement allegations plus 3 years, 4 months each for the counts 2 and 3 convictions and enhancements, plus 3 years for the prior prison term enhancement.

Appellant appeals from the judgment of conviction, contending that the trial court erred in permitting a witness to assert the Fifth Amendment and further contending that there is insufficient evidence to support his conviction for assaulting James Petties. Appellant also contends that the trial court erroneously believed that it was required to impose consecutive terms for his conviction and further contends that he received ineffective assistance of counsel at sentencing. We remand this matter for re sentencing, but affirm the judgment of conviction in all other respects.

Facts

On May 12, 2005, Tysa Ray walked past Freddy Pickett on her way home from school. He called her a bitch. Later that day, Ray walked home from her uncle's house with Casinova Whitsey, James Petties and Jasmine Scott. Whitsey was Ray's brother. They encountered a group which included Pickett. Everyone in Ray's group said, "What's up?" and kept walking. At some point, Ray told Whitsey that Pickett had called her a bitch.

About 6:00 p.m., Whitsey, Ray, Petties, Scott and "Jaqueda" walked to a convenience store. Whitsey wanted to find Pickett and talk to him about his bitch comment to Ray. Whitsey was mad at Pickett, but did not want to fight him.

On the way back from the store, Whitsey noticed that Petties was carrying a metal stick about 12 inches long and 1 inch in diameter. Whitsey's group soon encountered Pickett, who was with five or six others. Each group displayed a "What's up?" hand sign. No one threw gang signs. Whitsey's group kept walking. Whitsey noticed Pickett and appellant run around a house.

As Whitsey's group walked past 96th Street, Whitsey heard a car pull up near them. Pickett was driving. Appellant was in the passenger seat. Pickett parked the car and appellant got out. Pickett also got out. Appellant had a .9 mm silver handgun at his side. Pickett did not have anything in his hand. Petties raised his metal stick in a defensive gesture, but then put it down.

Appellant and Pickett approached Whitsey's group. Appellant asked, "Where you from?" of the group. He repeated the question twice. Pickett also asked the group, "Where you from?" Appellant said that he was "99 Mafia."

Scott approached appellant and said, "You not gonna shoot none of us." Appellant pushed her and called her "bitch." Whitsey and the group turned around and started to walk away. Petties was in front of Whitsey, as was Ray. Their backs were to appellant. Scott started to run. Whitsey heard two or three shots, then started running. Petties and Ray were also running. They were all running in the same direction. Ray turned and saw appellant shooting. Whitsey felt a pain in his ankle. Ray fell down and said "I'm shot." Appellant and Pickett drove away, throwing gang signs.

Whitsey had a gunshot wound to his ankle. Ray had a gunshot wound to her thigh. The bullet lodged in her knee. Petties did not testify at trial. Whitsey testified that a bullet went through Petties's pants. Ray testified that there was a hole in Petties's pants.

Sheriff's deputies recovered eight shell casings and some bullet fragments at the scene. Ray identified appellant and Pickett from photographic line-ups. She told a deputy that she had had an argument earlier in the day with Pickett and that her brother was going to "kick his ass." Whitsey identified Pickett from a photographic line-up. He said that appellant's photograph looked like the shooter, but had lighter skin.

At trial, Dywane Hansbrough testified on appellant's behalf. He stated that on the afternoon of the shooting, he was standing in front of an apartment building talking to appellant and another man when Pickett drove up. Pickett had a mean look on his face. The men talked for about twenty minutes. Hansbrough saw two female and two male teenagers walk down Norman die Avenue. The males threw up their hands in a "what's up?" gesture as they walked by. Hansbrough believed that it was a challenge, but did not recognize the gesture as a gang sign. No one in Hansbrough's group responded. Hansbrough and the others talked for about five or ten more minutes. Hansbrough then left. Appellant and Pickett were still standing on the street.

Discussion

1. Fifth Amendment

Appellant wished to call Pickett as a witness in his defense. Pickett was charged separately from appellant and had already pled guilty. Appellant contends that the trial court erred in allowing Pickett to assert his Fifth Amendment privilege against self-incrimination and refuse to testify. Appellant contends that Pickett had waived this right by his guilty plea and his discussion with police about the assault. Appellant also contends that he should have been permitted to question Pickett about events which occurred before the assault.

The Fifth Amendment to the United States Constitution provides that no person "shall be compelled in any criminal case to be a witness against himself." (U.S. Con st., 5th Amend.)

The California Constitution provides that persons may not "be compelled in a criminal cause to be a witness against themselves." (Cal. Con st., art. I, § 15; Evid. Code, §§ 930, 940.)

Appellant's contention that Pickett waived his constitutional privilege against self-incrimination is without merit.

We deny appellant's request to take judicial notice of the superior court file in People v. Pickett, case number YA061924-02. The factual basis for Pickett's plea is irrelevant, as is the expiration of his time to file a notice of appeal.

"It is settled that a waiver of the Fifth Amendment privilege is limited to the particular proceeding in which the waiver occurs." (U.S. v. Licavoli (9th Cir. 1979) 604 F.2d 613, 623, cert. den. (1980) 446 U.S. 935; see U.S. v. For tin (11th Cir. 1982) 685 F.2d 1297, 1299 [characterizing this rule as "horn book law"].) Thus, a guilty plea in one case does not constitute a waiver of a defendant's Fifth Amendment rights "with respect to information which could subject the defendant to a separate prosecution." (U.S. v. For tin, supra, 685 F.2d at p. 1298; U.S. v. Metz (5th Cir. 1979) 608 F.2d 147, 156 [defendant who pled guilty to federal conspiracy charge could assert 5th Amendment privilege in co-defendant's trial, because such testimony might subject him to prosecution for same crime under state law].)

Similarly, the fact that a person waives his Fifth Amendment right and speaks with police in one case about a crime does not prevent him from asserting his Fifth Amendment right to refuse to testify about that crime in another case. "It is settled by the overwhelming weight of authority that a person who has waived his privilege of silence in one trial or proceeding is not estopped to assert it as to the same matter in a subsequent trial or proceeding. The privilege attaches to the witness in each particular case in which he may be called on to testify, and whether or not he may claim it is to be determined without reference to what he said when testifying as a witness on some other trial, or on a former trial of the same case, and without reference to his declarations at some other time or place." (In re Neff (3d Cir. 1953) 206 F.2d 149, 152; U.S. v. Cain (1st Cir. 1976) 544 F.2d 1113, 1117 ["It is horn book law that the waiver [of an individual's privilege against self-incrimination] is limited to the particular proceeding in which the witness appears"].)

Since Pickett's right to invoke the privilege was not waived, we consider the trial court's ruling that invocation of the privilege was proper under the circumstances of this case. We see no error in the trial court's ruling.

"To invoke the privilege, a witness need not be guilty of any offense; rather, the privilege is properly invoked whenever the witness's answers 'would furnish a link in the chain of evidence needed to prosecute' the witness for a criminal offense. (Hoffman v. United States (1951) 341 U.S. 479, 486 [95 L.Ed. 1118, 1123-1124, 71 S.Ct. 814]; see also People v. Mincey (1992) 2 Cal.4th 408, 441 [6 Cal.Rptr.2d 822, 827 P.2d 388].) To satisfy this standard, 'it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.' (Hoffman v. United States, supra, at pp. 486-487 [95 L.Ed.2d at pp. 1123-1124].) Consistent with these principles, our Evidence Code provides that when a witness grounds a refusal to testify on the privilege against self-incrimination, a trial court may compel the witness to answer only if it 'clearly appears to the court' that the proposed testimony 'cannot possibly have a tendency to incriminate the person claiming the privilege.' (Evid. Code, § 404.)" (People v. Cudjo (1993) 6 Cal.4th 585, 617.)

At the time of appellant's trial, police were investigating Pickett for another crime that may have been related to the assaults in this case. A murder occurred about a week after the assaults in this case at the intersection of Vermont and Century. Shell casings recovered from the murder scene were fired from the handgun used in the assaults. The murder took place near the border of 99 Mafia territory, in 8 Trey territory. The assaults in this case began with an encounter at the border of 99 Mafia territory and ended with the shooting in 8 Trey territory. Appellant and Pickett were both 99 Mafia gang members. Police learned that there were three people in the car involved in the murder. They believed that appellant and his cousin were the actual shooters. Appellant told police that Pickett was involved. Since Pickett did not appear to be the actual shooter, he was most likely the driver.

Pickett's attorney contended that given the similarities between the assaults and the murder, any statements Pickett made about the assaults could link him to the murder, and thus incriminate him in the murder. The trial court agreed.

We agree with the trial court. The similarities between the two crimes made it more likely that Pickett was involved in the murder. Detective Marbach in fact told the court that it was the similarities between the assault and the murder which caused police to consider appellant and Pickett as suspects in the murder case. Thus, any testimony by Pickett which confirmed the details of the assaults would "furnish a link in the chain of evidence needed to prosecute" Pickett for murder.

Appellant contends that even if details of the assault could have linked Pickett to another crime, he should have been able to question Pickett about events leading up to the assault. In the trial court, appellant's counsel stated that the scope of his inquiry would be limited to whether Pickett knew appellant, saw him on the day of the assaults, saw him with a gun that day and "essentially what happened" that day. This included whether he had a conversation with Ray, called her a bitch, saw Ray's group make a "what's up" sign, and saw somebody other than appellant with a weapon. Appellant's counsel later said that assuming there was proof that the gun used in the assaults was the same one used in the murder, he believed that he had a right to question Pickett about events up until the gun appeared.

"Witnesses may refuse to answer questions calling for a potential link in a chain of evidence of guilt, as well as questions calling for clear admissions against penal interest." (People v. Lucas (1995) 12 Cal.4th 415, 454.) Merely being with a criminal suspect prior to a crime and engaging in activities unrelated to the charged crime can be the basis for asserting the Fifth Amendment. (Id. at p. 453.) Here, some of Pickett's pre-crime activities were related to the charged crime. Calling Ray a bitch may well have contributed to the assaults in this case.

As the trial court recognized, most pertinent evidence, such as Pickett's name-calling, could be obtained from other sources. Ray herself testified to the name-calling. Appellant was able to offer Hansbrough's testimony that he and Pickett were together before the assaults.

Only Pickett could have testified that Ray's group attacked appellant before appellant displayed his gun, and thus provided support for a self-defense claim by appellant. However, such evidence would have called for cross-examination about the timing of the appearance of the gun, which would have subjected Pickett to the danger of self-incrimination. (People v. Lucas, supra, 12 Cal.4th at p. 454.) Pickett's testimony about the timing of the appearance of the gun would have linked him to the gun and shown his knowledge about appellant's possession of and willingness to use a gun. These facts could have incriminated him in the murder investigation.

Even assuming for the sake of argument that the trial court erred in permitting Pickett to invoke his Fifth Amendment privilege we see no reasonable probability or possibility that appellant would have received a more favorable outcome in the absence of the error. We see no reasonable possibility that the jury would have believed a self-defense claim based on testimony by Pickett. Since Pickett had already pled guilty to one of the assaults, his testimony that the shootings were justified by self-defense would not be credible. Further, the wounds sustained by the victims were not inflicted at close range, and forensics suggested that the victims were running away when shot. This is not consistent with self-defense.

2. Sufficiency of the evidence

Appellant contends that there is insufficient evidence to support his conviction for assault with a firearm on Petties.

In reviewing the sufficiency of the evidence, "courts apply the 'substantial evidence' test. Under this standard, the court 'must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'" (People v. Cuevas (1995) 12 Cal.4th 252, 260-261.)

"Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." (People v. Jones (1990) 51 Cal.3d 294, 314.)

"The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] 'Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. "'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.'"'" (People v. Stanley (1995) 10 Cal.4th 764, 792-793.)

The evidence showed that Petties was carrying a metal pipe or stick and raised it when appellant got out of the car. None of the people with Petties was armed in any way. Ray and Whitsey testified that Petties was running ahead of them as they fled from appellant. Ray and Whitsey were hit by bullets from appellant's gun. Whitsey testified that a bullet went through Petties's pants. Ray testified that there was a hole in Petties's pants.

It would have been more than reasonable for the jury to infer that appellant was specifically aiming at Petties, the only member of the group who was visibly armed. Even absent such intent, however, there is sufficient evidence to support the verdict. Assault with a firearm does not require a specific intent to injure a particular victim. (In re Tameka C. (2000) 22 Cal.4th 190, 198.) A defendant need only intentionally engage in conduct that will likely produce injurious consequences. (Ibid.) Appellant fired at a fleeing group of people which included Petties. Such conduct was likely to produce injury. Appellant in fact hit two of the people in the group. That is sufficient.

Appellant points to inconsistencies in Ray's and Whitsey's testimony, including Ray's testimony on cross-examination that she was not sure if the hole in Petties's pants was there before the shooting. This does not render the evidence insufficient. "'The testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions.'" (In re Robert V. (1982) 132 Cal.App.3d 815, 821.) Appellant also points to the People's decision not to charge appellant with the assault of other uninjured people in the group. The People's decision says nothing about the sufficiency of the evidence concerning the charged assaults.

3. Sentence

Appellant contends that the trial court erroneously believed that it lacked discretion to sentence appellant concurrently and that this matter must be remanded to permit the court to exercise its discretion. Respondent agrees. We agree as well.

The trial court stated at sentencing: "This is a second strike offense. The law mandates consecutive sentences as it relates to, for instance, separate victims."

Penal Code section 667, subdivisions (c)(6) and (7) require consecutive sentences for a Three Strikes defendant when he is convicted of multiple serious or violent felonies "not committed on the same occasion, and not arising from the same set of operative facts." Thus, consecutive sentencing is not mandatory if the multiple current felonies are committed on the same occasion or arise from the same set of operative facts. (People v. Hendrix (1997) 16 Cal.4th 508, 511-513.) This is true even when there are multiple victims. (Id. at pp. 510-511 [consecutive sentence not required for convictions for robbery and attempted robbery committed on same occasion and involving four victims].)

The trial court was not aware that it had discretion to sentence appellant concurrently for the assaults. The trial court's comments give no indication of how it would have exercised this discretion if it had been aware of it. Accordingly, this matter must be remanded to permit the trial court to exercise its discretion.

4. Ineffective assistance of counsel

Appellant points out that his counsel filed a motion to strike his prior conviction which was factually inaccurate in several respects, made factually inaccurate arguments at the sentencing hearing and failed to present mitigating factors or to propose an appropriate sentence. He contends that this conduct amounted to ineffective assistance of counsel. We see no prejudice to appellant from his counsel's errors.

Appellant has the burden of proving ineffective assistance of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425.) In order to establish such a claim, appellant must show that his counsel's performance fell below an objective standard of reasonableness, and that, but for counsel's error, a different result would have been reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694.)

When an appellant makes an ineffective assistance claim on appeal, we look to see if the record contains any explanation for the challenged aspects of the representation. If the record is silent, then the contention must be rejected "'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation [citation].'" (People v. Haskett (1990) 52 Cal.3d 210, 248.)

The motion to strike appears to refer to a different defendant, one whose current conviction was for petty theft with a prior conviction, who had three prior strike convictions and a drug problem. The motion does not list the mitigating factors that appellant was working, attending school and involved in his son's life. Appellant had only one prior strike conviction and there is no evidence that he had a drug problem. Appellant's trial counsel stated at the hearing that appellant had multiple prior strike convictions. Counsel argued that appellant had cleaned up his act and was "taking care of business" now, but did not provide any meaningful details. We agree with appellant that filing a motion which contains numerous major factual inaccuracies, repeating those fallacies at the hearing on the motion and failing to argue mitigating factors falls below an objective standard of reasonableness. We also agree with appellant that there could be no satisfactory explanation for the challenged conduct.

We question whether appellant would have received a more favorable result in the absence of counsel's errors. Appellant's current crime was a violent one, he was on parole when he committed it and he had a substantial criminal history. The extent of appellant's turning his life around cannot be determined from this record, however. Accordingly, since we are remanding this matter to the trial court for re sentencing for other reasons, appellant may file a new motion to strike.

Disposition

This matter is remanded for the trial court to exercise its discretion in determining whether to impose sentence consecutively or concurrently. Appellant may file a motion to strike his prior conviction on remand. The judgment of conviction is affirmed in all other respects.

We concur: MOSK, J. KRIEGLER, J.


Summaries of

People v. Nesbitt

California Court of Appeals, Second District, Fifth Division
Sep 29, 2008
No. B199379 (Cal. Ct. App. Sep. 29, 2008)
Case details for

People v. Nesbitt

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. SHERMAN TRUMELL NESBITT…

Court:California Court of Appeals, Second District, Fifth Division

Date published: Sep 29, 2008

Citations

No. B199379 (Cal. Ct. App. Sep. 29, 2008)