Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF093347D
HULL, J.Following a drive-by shooting in which one person was seriously injured, defendant was convicted of three counts of attempted murder (Pen. Code, § 664/187) and one count each of conspiracy to commit murder (id., § 182, subd. (a)(1)), discharge of a firearm at an occupied dwelling (id., § 246), discharge of a firearm from a motor vehicle (id., § 12034, subd. (c)), and street terrorism (id., § 186.22, subd. (a)). He was sentenced to multiple life terms to be served consecutively.
Defendant appeals, contending: (1) most of his convictions must be reversed because they are based solely on the testimony of accomplices; (2) the trial court erroneously instructed the jury that the other three participants in the shooting were accomplices as a matter of law; (3) his attorney provided ineffective assistance when he failed to object to the accomplice instructions and failed to object to opinion testimony that he premeditated the attempted murders; and (4) the trial court was required to stay the sentence for conspiracy to commit murder. The People concede the last contention but argue the sentence on one of the attempted murders should be stayed rather than that for the conspiracy.
We agree the sentence must be modified to stay the term imposed on one of the attempted murders but otherwise affirm the judgment.
Facts and Proceedings
On the evening of September 17, 2004, defendant, Sophana Lorn, Lee Chon, Sean Hean, and several others were hanging out in a parking lot behind the Coventry Apartments on Kentfield Road in Stockton, an area known as “High Class” and one claimed by a criminal street gang known as the Original Crips Gang (OCG). Defendant, Lorn, Chon and Hean were all members or regularly hung out with OCG.
At approximately 10:00 or 10:15 p.m., S.N., Lorn’s fiancée, arrived at High Class and informed Lorn and others that she had been tailgated and followed by four Asian males in a red Honda Civic. Someone proposed that they go look for the Honda. Around 11:00 or 11:15 p.m., Lorn, Chon, Hean and defendant got into Lorn’s black Acura Integra and drove off.
Chon was the driver and defendant was in the front passenger seat, with Lorn and Hean in the back. They drove to Angel Cruz Park, where defendant got out and left them for about 10 minutes. When defendant returned, he directed Hean to take over driving and Chon moved to the back seat.
At defendant’s direction, the four drove to an area on Kirby Lane claimed by a rival gang, the Loc Town Crips (LTC), where they saw a number of people hanging out in front of a residence. Included in this group were Sareth P., his wife Nancy T., Chana C., Aeh V., and Peter A.
Hean drove by slowly and then proceeded to an elementary school in the area and stopped. Defendant directed another change in the driver, with Lorn moving to the driver’s seat and Hean returning to the back seat.
Lorn drove back to the area on Kirby Lane where they had seen the group of people. When they got within 30 feet of the people, defendant stuck a 9 millimeter semi-automatic handgun out the front passenger window and started firing at them. Defendant had obtained the weapon earlier that evening from Hean, who was its owner. Defendant fired five or more rounds, four of which hit a blue Honda parked on the street. One bullet struck a nearby residence and another struck Nancy T. just above the eye, causing severe and permanent injuries.
Lorn drove back to the parking lot off Kentfield, where defendant returned the gun to Hean and Hean put it away in his car. The next day, Lorn heard that a woman had been hurt in the shooting and painted his Acura white.
On September 21, four days after the shooting, Hean was pulled over by the police. They searched his vehicle and found two firearms hidden in his car, the one used in the Kirby Lane shooting and another he had obtained from a friend.
Hean was interviewed and, at first, said he had just bought the guns from a “Mexican dude.” He denied any involvement in the Kirby Lane shooting. However, later Hean admitted being in the car, claiming that people on the outside started shooting first and a Vietnamese person with a name starting with “L” shot back. According to Hean, that same Vietnamese person gave him the gun later that evening.
Lorn too was interviewed on September 21 and also denied any involvement in the shooting. However, after speaking with his girlfriend a couple of times during the interrogation, Lorn eventually admitted being the driver and identified Chon, Hean and a Vietnamese person as participants.
On September 29, Chon saw his picture in the paper as a suspect and turned himself in to the police. He was interviewed and admitted being in the Acura the evening of the shooting with defendant, Lorn and Hean. He claimed he had fallen asleep in the car and woke up to the sound of shots being fired by defendant.
Defendant too was interviewed on September 29 after turning himself in. Defendant said he had been drinking that evening and could not remember what happened. He remembered getting into somebody’s car and falling asleep. He denied firing a gun that evening.
All four men were charged with attempted murders and related offenses. Chon eventually entered into an agreement with the district attorney that permitted him to plead guilty to being an accessory after the fact with a prison term of two years in exchange for his truthful testimony. Hean and Lorn also entered into agreements with the prosecution to plead guilty to accessory offenses in exchange for their testimony. Hean received five years and Lorn received 10.
Defendant was thereafter tried and convicted as indicated above. In addition to finding defendant guilty of the substantive offenses, the jury concluded defendant personally discharged a firearm in connection with the offenses (Pen. Code, § 12022.53, subds. (d) & (e)) and committed the offenses for the benefit of a criminal street gang (id., § 186.22, subd. (b)(1)).
For the three attempted murders, defendant received three consecutive life terms plus enhancements for discharge of a firearm of 25 years to life, 20 years to life and 20 years to life. On the conspiracy count, defendant received a consecutive term of 25 years to life, with a stayed enhancement of 25 years to life for discharge of a firearm. On the charge of discharging a firearm at an occupied dwelling, defendant received a consecutive term of 15 years to life. Terms on the remaining counts were either stayed or run concurrently.
Discussion
I
Sufficiency of the Evidence
Defendant contends there is insufficient evidence to support his convictions for attempted murder, shooting from a vehicle and shooting at a dwelling. He argues those convictions were based on the jury’s conclusion he was the actual shooter, but the only evidence supporting this conclusion came from his accomplices and accomplice testimony must be corroborated. We find sufficient corroboration to support the convictions.
Penal Code section 1111 reads in relevant part: “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. . . .” The purpose of this corroboration requirement is “to ensure that a defendant will not be convicted solely upon the testimony of an accomplice because an accomplice is likely to have self-serving motives.” (People v. Davis (2005) 36 Cal.4th 510, 547.)
“To corroborate the testimony of an accomplice, the prosecution must present ‘independent evidence,’ that is, evidence that ‘tends to connect the defendant with the crime charged’ without aid or assistance from the accomplice’s testimony. [Citation.] Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime. [Citations.] ‘“[T]he corroborative evidence may be slight and entitled to little consideration when standing alone.” [Citation.]’” (People v. Avila (2006) 38 Cal.4th 491, 562-563.) However, while corroborating evidence need only be slight, “it is not sufficient to merely connect a defendant with the accomplice or other persons participating in the crime. The evidence must connect the defendant with the crime, not simply with its perpetrators.” (People v. Falconer (1988) 201 Cal.App.3d 1540, 1543.)
Defendant contends there was no evidence to corroborate the accomplice testimony that he was the shooter on the evening of September 17. None of the witnesses in the group on Kirby Lane could identify the shooter. There was no fingerprint evidence from the gun or the shell casings recovered at the scene. The gun did not belong to defendant and there was no evidence, other than accomplice testimony, that defendant ever possessed the gun that evening.
However, defendant’s argument incorrectly assumes there must be corroborating evidence he was the shooter. The issue here is not whether there is sufficient corroboration of every element or detail of the offenses, but whether there is sufficient corroborating evidence connecting defendant to the crimes. That evidence “‘“need not corroborate the accomplice as to every fact to which he testifies but is sufficient if it does not require interpretation and direction from the testimony of the accomplice yet tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth . . . .” [Citations.]’ [Citations.]” (People v. Davis, supra, 36 Cal.4th at p. 543, italics omitted.)
Here, there was sufficient corroborating evidence that defendant participated in the drive-by shooting. S.N. testified that defendant got into Sophana Lorn’s black Acura Integra with Lorn, Chon, and Hean at approximately 11:00 or 11:15 p.m. on September 17. She further testified that defendant got into the front passenger seat. A defense witness, Huyen H., also testified that defendant got into the Acura with the others that evening, although she only recalled three people in the car and indicated defendant had gotten into the back seat on the passenger side. Witnesses on Kirby Lane testified that a black Acura Integra drove by once and then returned a few minutes later, when the shots were fired. Police were called to the scene at 11:31 p.m.
In addition to the foregoing, which placed defendant at the scene with the other perpetrators at the time of the shooting, defendant’s interview with police was placed into evidence. In that interview, defendant testified that he was drinking heavily that evening and did not remember anything. He stated he drank so much that he went into somebody’s car, fell asleep, and woke up the next day. He did not remember how he got home. Defendant also claimed he was no longer a member of OCG. However, other evidence was presented that defendant seemed fine when he got into the car and was still hanging out with OCG members and retained his OCG tattoos. In April 2004, five months before the shooting, defendant told police he claimed and hung out with OCG. Two months later, defendant told police he had been an OCG member for eight years. A defendant’s initial denials of involvement imply a consciousness of guilt and constitute corroborating evidence. (People v. Avila, supra, 38 Cal.4th at p. 563.)
Defendant does not claim the foregoing evidence was insufficient to corroborate that he was a participant in the drive-by shooting. He argues instead that the evidence did nothing to help establish that he was any more likely than the others to have been the shooter. However, as explained above, “[c]orroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime.” (People v. Avila, supra, 38 Cal.4th at p. 563, italics added.) There is no requirement that the corroborating evidence support each element of the crime. As the state high court explained in People v. Lyons (1958) 50 Cal.2d 245: “The evidence need not corroborate the accomplice as to every fact to which he testifies but is sufficient if it does not require interpretation and direction from the testimony of the accomplice yet tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth; it must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged.” (Id. at p. 257; see People v. Szeto (1981) 29 Cal.3d 20, 27.) Here, the corroborating evidence implicated defendant in the crime whether or not he was the shooter.
Defendant further argues the motivation of the other three participants to blame him cannot be overstated, since they were all facing life terms and received much lower terms for their testimony against defendant. This may be true. However, the same can be said no matter who was implicated as the shooter. The other three would always have a motivation to point the finger at someone else. This is why corroboration is required in the first place.
In the present matter, corroborating evidence was presented to place defendant in the car when the drive-by shooting occurred. This evidence was sufficient to connect defendant with the offenses in such a way as to satisfy a reasonable jury that the accomplices were telling the truth. The law requires nothing more.
II
CALCRIM No. 335
Defendant contends the trial court erred in instructing the jury pursuant to CALCRIM No. 335 that Lorn, Chon and Hean were accomplices as a matter of law. As given here, CALCRIM No. 335 read:
“If the crimes alleged in Counts 1 through 6, 8 and 10 were committed, then Lee Chon, Sean Hean, and Sophana Lorn were accomplices to those crimes.
“You may not convict the defendant of any of the above Counts based on statements or testimony of an accomplice alone. You may use the statements or testimony of an accomplice to convict the defendant only if:
“1. The accomplice’s statement or testimony is supported by other evidence which you believe;
“2. The supporting evidence is independent of the accomplice’s statement or testimony; and
“3. That supporting evidence tends to connect the defendant to the commission of the crimes alleged.
“Supporting evidence, however, may be slight. It does not need to be enough, by itself, to prove that the defendant is guilty of the charged crimes, and it does not need to support every fact mentioned by the accomplice in the statement or about which the witness testified. On the other hand, it is not enough if the supporting evidence merely shows that the crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant with the commission of the crimes.
“The evidence needed to support the statement or testimony of one accomplice cannot be provided by the statement or testimony of another accomplice.
“Any statement or testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that statement or testimony the weight you find it deserves after examining it with care and caution and in light of all of the other evidence.”
Defendant contends that, where an alleged accomplice is a codefendant, such an instruction might be used by a jury to impute a confessing codefendant’s guilt to the others. Defendant argues that, where the alleged accomplice is a codefendant, the determination of whether the person is an accomplice should be left to the jury.
A court may determine that a witness is an accomplice as a matter of law only if the facts regarding the witness’s culpability are clear and undisputed. (People v. Williams (1997) 16 Cal.4th 635, 679.) An instruction that a witness is an accomplice as a matter of law may be given only if the undisputed evidence established his or her complicity. (People v. Davis (1954) 43 Cal.2d 661, 672.) This is such a case. It is undisputed the offenses were committed and that Lorn, Chon and Hean participated. The only issue was whether defendant was also involved.
Nevertheless, in People v. Hill (1967) 66 Cal.2d 536, the state Supreme Court observed: “[W]here a codefendant has made a judicial confession as to crimes charged, an instruction that as a matter of law such codefendant is an accomplice of other defendants might well be construed by the jurors as imputing the confessing defendant’s foregone guilt to the other defendants.” (Id. at p. 555.) The court concluded that, under these circumstances, it is not error to forego giving accomplice instructions “where the giving of them would unfairly prejudice a codefendant in the eyes of the jury.” (Ibid.)
In the present matter, CALCRIM No. 335 did not unfairly prejudice defendant. Lorn, Chon and Hean were not codefendants at trial, inasmuch as they had already reached plea agreements. Therefore, the guilt of those parties was not at issue and could not be imputed to defendant. Because the sole issue for the jury was whether defendant participated in the drive-by shooting, the complicity of the others was not at issue except insofar as it made their testimony suspect. Under these circumstances, there was no significant danger that the jury would impute the guilt of Lorn, Chon and Hean to defendant. (See, e.g., People v. Bittaker (1989) 48 Cal.3d 1046, 1063, 1100 [no error in instructing that Norris was an accomplice as a matter of law where Norris entered into a plea agreement and testified at the defendant’s trial that he and the defendant committed a series of kidnappings and rapes].)
Having concluded CALCRIM No. 335 was properly given, we need not address defendant’s argument that his counsel provided ineffective assistance in failing to object to the instruction.
III
Ineffective Assistance
Defendant contends he received ineffective assistance of counsel when his attorney failed to object to testimony by a prosecution expert about whether the participants in the drive-by shooting premeditated their crimes. He argues that when mental state is an element of the offense charged, expert testimony that the mental state was present is prohibited. Defendant further argues there could have been no tactical reason for failing to object to the evidence. Finally, defendant argues he was prejudiced, because evidence was presented suggesting that he did not premeditate but instead opened fire in response to shots coming from outside the car.
Under both the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution, a criminal defendant has a right to the assistance of counsel. (See Strickland v. Washington (1984) 466 U.S. 668, 684-685 [80 L.Ed.2d 674, 691-692]; People v. Pope (1979) 23 Cal.3d 412, 422.) This right “entitles the defendant not to some bare assistance but rather to effective assistance.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To establish ineffective assistance of counsel, “a defendant must establish that (1) counsel’s representation was deficient, i.e., fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s representation subjected the defendant to prejudice, i.e., a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant.” (People v. Horton (1995) 11 Cal.4th 1068, 1122.)
On the issue of whether counsel’s representation fell below an objective standard of reasonableness, “there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance’ [citations], and we accord great deference to counsel’s tactical decisions. [Citation.] Were it otherwise, appellate courts would be required to engage in the ‘“perilous process”’ of second-guessing counsel’s trial strategy.” (People v. Frye (1998) 18 Cal.4th 894, 979-980.) “‘“[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.’ [Citations.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding.” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
Defendant takes issue with the following direct testimony by the prosecution’s gang expert, Detective Kathryn Nance of the Stockton Police Department:
“Q. Without asking you to specifically comment on what was in the minds of these particular defendants, does the facts [sic] involving the Kirby case, does that show evidence of premeditation?
“A. Yes, it does.
“Q. Why is that?
“A. Again, you have gang members that are of the same gang that are in a car together, they’re armed. They’re driving around looking for people. They’re going out to try and find people.
“In addition to that, they drive by one time, they see a group of people. They weren’t just looking to see what they were doing, they just didn’t leave the area at that point. They went back by and that’s when they did the shooting.
“The opportunity not to go back by was there, to turn around and go home. Just to see where people were hanging out at, that was gone when they came back by and did the shooting.”
Defendant argues there could have been no tactical reason for defense counsel not to object to this testimony. We disagree. Contrary to defendant’s assertions, Detective Nance did not testify that defendant premeditated the attempted murders. On the contrary, the prosecutor directed her not to comment on what was in the minds of those in the Acura. He did not even ask if, hypothetically, the circumstances of this case demonstrated premeditation. Rather, he asked if those circumstances “show evidence of premeditation.” In other words, is evidence that the perpetrators were armed and drove around looking for rival gang members relevant to the issue of premeditation?
At any rate, assuming this evidence was objectionable, defense counsel chose to limit the testimony through cross-examination rather than objection. One of the defense theories was that the shots were fired from the Acura in response to shots fired at the Acura. Defense counsel asked Detective Nance if the fact that shots were first fired from outside the Acura would negate premeditation. Although Nance generally stuck by her opinion that the fact the perpetrators were armed and returned to the area after ascertaining that potential rival gang members were present was evidence of premeditation, she eventually acknowledged that if shots had been fired at the car and those inside responded with shots of their own, the latter shots would not have been premeditated.
“Generally, failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight.” (People v. Kelly (1992) 1 Cal.4th 495, 520.) “A reviewing court will not second-guess trial counsel’s reasonable tactical decisions.” (Ibid.) “[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. Frierson (1991) 53 Cal.3d 730, 749.)
In the present matter, we cannot say defense counsel did not have a tactical basis for failing to object to the opinion testimony of Detective Nance and choosing instead to cross-examine her on that opinion.
IV
Sentence on the Conspiracy Count
Defendant was sentenced on each of the three attempted murders to consecutive life terms. He also received a consecutive term of 25 years to life for conspiracy to commit murder. Defendant contends the trial court was required to stay the term on the conspiracy count, because he cannot be punished for both a conspiracy to commit a substantive offense and the substantive offense itself. The People concede error but contend the court must stay the term on the attempted murder count rather than the conspiracy, because the latter carries the longer potential term. We agree with the People.
Penal Code section 654, subdivision (a), provides: “An 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. . . .”
Because of the foregoing limitation, “a defendant may not be sentenced ‘for conspiracy to commit several crimes and for each of those crimes where the conspiracy had no objective apart from those crimes. If, however, a conspiracy had an objective apart from an offense for which the defendant is punished, he may properly be sentenced for the conspiracy as well as for that offense.’ [Citations.] Thus, punishment for both conspiracy and the underlying substantive offense has been held impermissible when the conspiracy contemplated only the act performed in the substantive offense [citations], or when the substantive offenses are the means by which the conspiracy is carried out [citation]. Punishment for both conspiracy and substantive offenses has been upheld when the conspiracy has broader or different objectives from the specific substantive offenses.” (People v. Ramirez (1987) 189 Cal.App.3d 603, 615-616.)
A defendant may not be punished for both murder and a conspiracy to commit that murder. (People v. Hernandez (2003) 30 Cal.4th 835, 866.) However, a defendant may be punished for both murder and conspiracy to commit murder, if the object of the conspiracy was to kill more than just the victim of the murder. (People v. Vargas (2001) 91 Cal.App.4th 506, 571.)
In this case, defendant was convicted of conspiracy to commit murder and three attempted murders. Technically speaking, defendant was not convicted of both conspiracy to commit an offense and the offense, inasmuch as attempted murder is not murder. However, it makes little sense to say a defendant cannot be punished for both conspiracy to commit murder and murder but can be punished for both conspiracy to commit murder and the lesser offense of attempted murder. Since both conspiracy to commit murder and attempted murder under the facts of this case were part of a continuous course of conduct and had but one objective and intent, only one punishment is permitted. (See People v. Harrison (1989) 48 Cal.3d 321, 335.)
Although the conspiracy to commit murder count was couched in general terms, the enhancements referred specifically to the attempted murder of Nancy T. Therefore, defendant was convicted of both attempted murder of Nancy T. and conspiracy to murder Nancy T. Punishment on both offenses is precluded by Penal Code section 654.
Defendant contends sentence on the conspiracy count must be stayed, whereas the People contend sentence on the attempted murder count must be stayed. The People are correct. Penal Code section 654 requires that the court impose sentence on the offense that carries the longest potential term of imprisonment. In making this determination, the court must look at the potential sentence on both the substantive offense and any applicable enhancements. (People v. Kramer (2002) 29 Cal.4th 720, 723-725.) Here, defendant was subject to the same enhancements on both the conspiracy and the attempted murder of Nancy T. counts. Thus, we need only look at the substantive offenses.
For attempted, premeditated murder, the punishment is life with the possibility of parole. (Pen. Code, § 664, subd. (a).) For conspiracy to commit murder, the punishment is the same as that prescribed for first degree murder. (id., § 182, subd. (a).) For first degree murder, the potential punishments are death, life without the possibility of parole, and 25 years to life. (id., § 190, subd. (a).) Hence, it is clear the crime of conspiracy to commit murder carries the greater potential punishment, and the trial court was required to impose sentence on that count rather than on the count for attempted murder of Nancy T.
On count one, the attempted murder of Nancy T., the trial court imposed a sentence of life with the possibility of parole plus an enhancement of 25 years to life for the discharge of a firearm. On count five, the conspiracy to commit murder, the court imposed a sentence of 25 years to life. The court also imposed an enhancement of 25 years to life for the discharge of a firearm, but stayed this enhancement pursuant to Penal Code section 654. This was error. The court was required to impose sentence on count five and all applicable enhancements and stay the term and enhancements on count one.
Disposition
The judgment is modified to eliminate the stay of the enhancement of 25 year to life on count five. The judgment is further modified to stay the sentence and enhancements imposed on count one, the stay to become permanent upon completion of the term imposed on count five. The matter is remanded to the trial court with directions to prepare a new abstract of judgment reflecting the above modifications and to forward a certified copy thereof to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
We concur: RAYE, Acting P.J., MORRISON, J.