Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA079104, Charles E. Horan, Judge.
Seymour I. Amster for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Beverly K. Falk, Deputy Attorney General, for Plaintiff and Respondent.
MALLANO, P. J.
Edward Perez appeals from the judgment entered following a jury trial in which he was convicted of two counts of attempted premeditated murder and three counts of shooting from a motor vehicle, with further findings, among others, that he personally and intentionally discharged a firearm causing great bodily injury and committed the offenses for the benefit of a criminal street gang. Defendant contends that his trial counsel rendered ineffective assistance in various respects. We affirm.
BACKGROUND
Defendant was a member of the Cherrieville criminal street gang in Pomona. On the afternoon of May 12, 2007, defendant was riding in the rear seat of an SUV being driven by Desirae Lopez, who was the girlfriend of Cherrieville member Pablo Romero. According to Lopez, who testified after pleading no contest to attempted murder, a Cherrieville member other than Romero was in the front passenger seat.
Further evidence established that Lopez slowed down as she approached an apartment complex on Laurel Avenue in Pomona, where several people were congregated, including Danny Carmona, Sergio Ruvalcaba, and Michael Carrillo. Some in the group were members of the Crazy Ass Lunatics, a tagging crew affiliated with Cherrieville’s arch rival, the West Side Pomona gang. As the SUV veered toward the middle of the street, a male voice yelled, “Cherrieville,” and five to six gunshots rang out. Carmona was hit in the ankle by a projectile as he attempted get away. Bleeding heavily, Carmona was taken to the hospital by ambulance, where the projectile was removed. Ruvalcaba told an investigating officer that defendant was the shooter and that Romero was in the front passenger seat. (Ruvalcaba testified while in custody as a “witness victim” and denied any recollection of having provided information to the police.)
Five spent nine-millimeter casings were found at the scene. Four had been fired from a single firearm. (The fifth casing had been on the street longer than the other four.) Two pieces of “shrapnel” were recovered from a metal key box at the entrance to the complex, which appeared to have been struck by a bullet. A criminalist was of the opinion that the projectile which hit Carmona was a bullet fragment, although there was too much damage to determine the caliber of the bullet.
Defendant was arrested and agreed to be interviewed by the police. A videotape of the statement was played for the jury. During the interview, defendant confessed that he was at the scene and that he fired the gun from Lopez’s SUV. Defendant claimed he had not fired at anyone in particular, but shot into the air to scare people. He also denied that anything had been yelled out of the car during the incident.
A gang expert testified that defendant was a member of the Cherrieville gang based on, among other things, defendant’s maintaining a “My Space” page with pictures of Cherrieville gang members and having a “Pomona” tattoo on his neck. Additional evidence established Cherrieville’s status as a criminal street gang, and Carmona’s and Ruvalcaba’s membership in a rival gang.
Defendant testified on his own behalf. He acknowledged having a “My Space” page but denied being a member of the gang himself. He claimed that on the day of the incident he did not know there was a gun in the SUV until Lopez pulled it out from beneath her seat. She gave it to defendant and started driving slowly past the apartment complex. Lopez pointed to someone defendant recognized as a person with whom Lopez had a prior conflict. Lopez then called defendant a bitch and told him to shoot. She further stated, “If you don’t do it, you know what’s going to happen to you....” Defendant took the threat seriously because of Lopez’s close association with Cherrieville gang members. Defendant did “not really” point the gun in any particular direction and fired four times, “[p]retty much randomly.”
In closing argument, the prosecutor asserted that defendant shot at his victims in a premeditated manner for the benefit of the Cherrieville gang. Defense counsel argued that the evidence did not establish beyond a reasonable doubt that defendant had the intent to kill anyone, noting that Carmona was struck by “remnants of a round that hit something with such force that it came apart in an unpredictable fashion. It can spray quite a ways in any direction. [¶] Unfortunately, a piece of one round wound up in Mr. Carmona’s heel.”
Defendant was convicted of the attempted premeditated murders of Carmona and Ruvalcaba and shooting from a vehicle at Carmona, Ruvalcaba, and Carrillo. He was acquitted of attempting to murder Carrillo, with respect to whom the prosecutor conceded in closing argument that there was no evidence of gang membership. Based on these convictions and associated firearm use enhancements, defendant was sentenced to a total term of 40 years to life in prison.
APPLICABLE LEGAL STANDARDS
“In order to prevail on [an ineffective assistance of counsel] claim defendant must prove (1) his attorney’s representation was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) his attorney’s deficient representation subjected him to prejudice. [Citations.] Prejudice for purposes of this analysis is demonstrated by showing a reasonable probability that, but for trial counsel’s failings, the result would have been more favorable for the defendant. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]” (People v. Cain (1995) 10 Cal.4th 1, 28.) “[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” (Strickland v. Washington (1984) 466 U.S. 668, 697 [104 S.Ct. 2052]; accord, In re Fields (1990) 51 Cal.3d 1063, 1079.)
“‘“Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’” [Citation.] “[W]e accord great deference to counsel’s tactical decisions” [citation], and we have explained that “courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight” [citation]. “Tactical errors are generally not deemed reversible, and counsel’s decision making must be evaluated in the context of the available facts.” [Citation.]’ [Citation.]” (People v. Stanley (2006) 39 Cal.4th 913, 954.)
The Supreme Court has also “repeatedly stressed ‘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 [of ineffective trial counsel] must be rejected.’ [Citations.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding. [Citations.]” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266–267; see, for examples of evidence outside the record developed on habeas, People v. Frierson (1979) 25 Cal.3d 142, 158 [declarations of experienced attorneys regarding proper standards for investigation and presentation of defenses]; People v. Sanders (1990) 221 Cal.App.3d 350, 365, 390 [attorney expert on standards of professional competence].)
DISCUSSION
Under the foregoing legal standards, defendant’s claims of ineffective assistance of trial counsel must fail.
Defendant first contends that counsel ineffectively “failed to object to the factual conclusion that the metal fragment pulled from victim was conclusively a ‘bullet.’” He argues prejudice on the basis that the projectile could have been a fragment from the metal key box at the entrance to the apartment complex or some other object, thereby undermining the prosecution’s theory that he aimed at his victims. Contrary to defendant’s position, the criminalist who examined the fragment was of the opinion that it was from a bullet, and in closing argument defense counsel noted that the fragment could have hit Carmona after the bullet came apart in an unpredictable fashion. As such, counsel had neither evidence nor logical reason to dispute the theory that Carmona was hit by a fragment of a bullet fired by defendant.
Defendant next faults trial counsel for failing to present a gang expert who would testify that there are gangs in Pomona other than Cherrieville and that defendant’s “Pomona” tattoo could have shown membership with one of those gangs or even been a statement of no affiliation with any gang. Defendant further claims a defense gang expert “would have challenged the prosecution’s expert witness testimony as to the levels of membership and types of gangs,” and “would have more likely interpreted” certain evidence in a manner more favorable to defendant. There is no basis for defendant’s claims. In the context of this direct appeal, defendant has done no more than speculate what an expert might have said rather than demonstrated that an expert would have testified consistently with this speculation. Accordingly, his assignment of ineffective assistance must be rejected.
Defendant also complains that trial counsel should have pursued the possibility that the other male in the SUV was a participant in the crime. This argument ignores defendant’s confession that he was the shooter. Given this state of the evidence, trial counsel cannot be criticized legitimately for his tactical choice to forgo attempting to place blame on others and focusing on defendant’s mental state at the time of the shooting.
Defendant contends that trial counsel was ineffective in delaying disclosure of a possible defense witness. We disagree. Prior to jury selection, trial counsel stated that he might present a private investigator with expertise in crime scene investigation and law enforcement procedures, from whom counsel had received a confidential report. The court reminded counsel of the requirement of providing discovery before trial. Following a recess, the prosecutor acknowledged having received a copy of the investigator’s report and argued that the investigator’s testimony would be irrelevant. The court responded to the prosecutor: “Why don’t you do more than glance at the report, then I will hear your objection later.” Thereafter, the matter of the defense investigator was not mentioned. On this record, which is devoid of any additional information about the investigator or the report, there is no basis upon which to conclude that counsel was ineffective.
Defendant argues that trial counsel should have sought to exclude his videotaped confession “due to the fact it was edited and misled the jury as to the facts.” But the only basis for this argument is a portion of defendant’s trial testimony in which he asserted that the police tampered with the videotape in that “some of the stuff [he said] was cut out” and the videotape depicted him saying some things he did not remember saying. (As to the latter, defendant clarified that he “probably said it” because he was high when the police picked him up.) The appellate record provides no basis to establish that counsel had a meritorious ground for objecting to the videotape.
Defendant also raises improper editing of the videotape as a separate evidentiary issue. Again, the appellate record provides no basis to establish a meritorious ground for objecting to the videotape.
Defendant next contends that trial counsel should have pursued a defense of necessity or duress based on Lopez’s threat, “If you don’t do it, you know what’s going to happen to you....” Duress is not a defense to premeditated murder. (People v. Anderson (2002) 28 Cal.4th 767, 770.) And even if duress could be considered a defense to attempted premeditated murder or shooting from a motor vehicle, given the vagueness of this threat (see Pen. Code, § 26, par. Six), trial counsel cannot be faulted for focusing solely on an attempt to lessen defendant’s sentence exposure by defending on the ground that defendant did not have the intent to kill.
Finally, defendant contends that trial counsel should have impeached prosecution witness Jonathan Woodard, who was in the group of people outside the apartment complex and testified that he saw the SUV approach, heard the gunshots, and threw himself (and his girlfriend with whom he was standing) to the ground. The basis for impeachment would be misdemeanor convictions Woodard had suffered for theft and assault, which the court ruled could be used for impeachment, and for domestic violence, which the court ruled might be admissible for impeachment if counsel could provide authority that it was a crime of moral turpitude. The question of moral turpitude for the domestic violence conviction was not again raised, and during cross-examination of Woodard defense counsel did not use any misdemeanor conduct for the purpose of impeachment. Defendant claims that Woodard “seems like a sympathetic witness,” most likely because Woodard did not identify defendant or otherwise provide evidence that was prejudicial to the defense. But from the four corners of the record on appeal, there is no basis upon which to conclude that counsel’s tactical decision to forgo the opportunity to impeach Woodard fell below an objective standard of reasonableness under prevailing professional norms.
DISPOSITION
The judgment is affirmed.
We concur: ROTHSCHILD, J., JOHNSON, J.