Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Amy D. Hogue, Judge, Los Angeles County Super. Ct. No. SA056342
Walter L. Gordon, III for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Roberta L. Davis and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Ronald Brooks Ridley was convicted of first degree murder (Pen. Code, § 187) and two counts of attempted murder (§§ 187, 664). On appeal, he argues that the trial court should have given the jury accomplice and manslaughter instructions sua sponte; that trial counsel provided ineffective assistance; that the evidence is insufficient to support the convictions; that stayed sentence enhancements should instead have been stricken; that the selection of the upper term on the stayed sentence enhancements violated his Sixth Amendment rights; and that the imposition of consecutive sentences was error and violated his Sixth Amendment rights. We modify the sentence to strike the stayed section 12022.5, subdivision (a) enhancements but otherwise affirm.
Unless otherwise indicated, all further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Approximately one and one-half years before May 2005, Hao Nguyen was cut off by Ridley while driving his Jaguar. Hao and Ridley stopped their vehicles and had a shouting match. Thereafter, Hao and Ridley encountered each other several times, each time with hostilities. On one occasion, Ridley shot out the back window of Hao’s car. Later, Hao and his brothers went to a restaurant, saw Ridley, and left, but Ridley saw them, followed them in his car, and cornered them in a parking structure. Hao’s brothers had a fist fight with Ridley and Ridley’s companion.
As three brothers with the same surname are victims in this case, we refer to each by his first name for clarity.
On May 8, 2005, Hao and his brothers Tai and Tu were in Hao’s Jaguar driving to a swap meet. While driving down El Segundo Boulevard, Hao heard gunshots. He saw that it was Ridley shooting at his car from a black Camaro, and began to struggle to keep control of the vehicle. Hao’s car swerved over the curb and into a building. Hao was hit along the jaw line and through his arm and chest. Tu was hit in the neck but survived. Tai was shot in the head and died.
At trial, Dominique Jenkins testified that on the day of the shooting he was riding in a borrowed black Camaro with Ridley. Jenkins became tired, leaned the front seat of the car back, and took a nap. Jenkins awoke to a sound that he described as like “somebody hitting something real hard outside the car.” He testified that he later told the police that it sounded like gunfire, two or three shots. Jenkins flinched, threw his hands over his eyes, and did not sit up. After the sounds ended, he sat up and asked Ridley what happened. Ridley said that it was nothing. Jenkins knew that Ridley had previously had a conflict with some men that involved multiple altercations. On the day of the shooting, Ridley said, “There goes those fools in a Jaguar.” Jenkins did not immediately link the men to the Jaguar.
Hao and Tu identified Ridley as the shooter from photographic lineups and at trial.
Ridley was convicted of the first degree murder of Tai, with special allegations found true that he personally used a firearm (§ 12022.5, subd. (a)) and that he personally and intentionally discharged a firearm which caused great bodily injury and death to Tai (§ 12022.53, subd. (d)). He was convicted of two counts of attempted murder, with the additional findings that the crime was willful, deliberate, and premeditated; that Ridley personally used a firearm (§ 12022.5, subd. (a)), and that he personally and intentionally discharged a firearm which caused great bodily injury to Hao and Tu (§ 12022.53, subd. (d)). Ridley’s motion for a new trial was denied, and he was sentenced to a sentence of 100 years to life. He appeals.
DISCUSSION
I. Accomplice Instructions
A person is an accomplice when he or she is liable to prosecution for the identical offense charged against the defendant in the trial in which he or she testifies. (§ 1111.) Accomplice instructions should be given when the defendant proves by a preponderance of the evidence that a particular witness was an accomplice. (People v. Williams (1997) 16 Cal.4th 153, 247.)
Ridley contends that the trial court had a sua sponte obligation to instruct the jury concerning accomplices because there was sufficient evidence in the record that Jenkins aided and abetted the crimes for which Ridley was convicted. Ridley notes that Jenkins was present when the shootings were committed; that the evidence supports the inference that after Jenkins was told that Ridley had spotted the victims he lowered his seat to conceal himself; that Jenkins initially denied that he was with Ridley at the time of the shooting, only admitting his presence when he was arrested for murder and placed in jail; that the detective who investigated the crimes did not believe Jenkins was entirely truthful; that Jenkins’ admission that he heard gunshots was designed to shift blame onto Ridley; and that there was evidence that Jenkins aided the crime by disposing of the gun.
Here, Ridley did not prove by a preponderance of the evidence that Jenkins was an accomplice. That Jenkins was present when the shootings occurred, even assuming Ridley’s inference is accurate that Jenkins lowered his seat to conceal himself during the shootings, fails to make him an accomplice. There was no evidence that Jenkins encouraged, facilitated, or assisted in the shooting. Knowledge of Ridley’s criminal intent, presence at the scene, and failure to prevent a crime are all insufficient to establish guilt as an aider or a better. (People v. Nguyen (1993) 21 Cal.App.4th 518, 530.) Similarly, Jenkins’ initial denial that he was present at the time of the shooting, his testimony that he heard gunshots, and the belief of the investigating detective that Jenkins was not fully truthful do not establish that he was an accomplice in the shootings. Finally, Ridley contends that the tape recording of himself speaking with his girlfriend while in jail, during which he asked her, “Did Dom [Jenkins] get rid of it?” required the court to give accomplice instructions. Ridley speculates that “it” was “the gun or some other incriminating evidence,” but that is merely speculation, and there is no evidence as to what “it” is or whether “it” was related to the shootings. As Ridley has not identified any evidence proving by a preponderance of the evidence that Jenkins was an accomplice to the crimes, the trial court did not err in failing to give, sua sponte, accomplice instructions.
II. Manslaughter Instructions
The criminal act of killing another human being constitutes either murder or manslaughter, depending on whether the element of malice is present: “The distinguishing feature is that murder includes, but manslaughter lacks, the element of malice.” (People v. Rios (2000) 23 Cal.4th 450, 460.) Malice is negated when the “killer is so provoked by acts of the victim that he strikes out in the heat of passion, an emotion that obliterates reason that would prevail in the mind of a reasonable person,” and the resulting crime is manslaughter rather than murder. (People v. Johnston (2003) 113 Cal.App.4th 1299, 1311.)
Ridley contends that the trial court should have instructed the jury, sua sponte, with CALJIC No. 8.40, concerning manslaughter, because there was sufficient evidence of provocation to raise a factual issue of whether the shooting occurred in the heat of passion, namely, the ongoing quarrel between Ridley and the victims, involving an attack and vandalism at least six months before the shootings. A trial court must instruct sua sponte on a lesser included offense only if there is substantial evidence to support a jury’s determination that the defendant was in fact only guilty of the lesser offense. (People v. Williams, supra, 16 Cal.4th at p. 227.)
While Ridley is correct that there was evidence of past conflict between himself and the victims, there was no evidence of any provocation for the shootings. Ridley cites no authority, and we are aware of none, that would suggest that an act of vandalism to a car and a physical altercation could possibly be sufficient provocation to “cause an ‘ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection . . .’” (People v. Breverman (1998) 19 Cal.4th 142, 163), shooting into the car of the victims when seeing them driving along six months after an altercation. As there was no evidence of provocation or heat of passion, there was no requirement that the trial court instruct the jury on voluntary manslaughter.
III. Ineffective Assistance of Counsel
Ridley asserts that his attorney failed to: provide an adequate defense, request accomplice instructions, object to the failure to give manslaughter instructions, request provocation instructions, object to gunshot evidence and gang membership evidence, and request that Ridley’s prior felony conviction not be used to impeach him when he testified. Ridley argues that this constituted ineffective assistance of counsel within the meaning of Strickland v. Washington (1984) 466 U.S. 668. To establish ineffective assistance of counsel, Ridley must demonstrate that “(1) counsel’s representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation subjected the petitioner to prejudice, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the petitioner.” (In re Jones (1996) 13 Cal.4th 552, 561.)
Ridley acknowledges that the record is silent on counsel’s explanations for his actions, and that his claim is properly brought by way of a petition for habeas corpus; he states that he is preserving the ineffectiveness question for later habeas review. As Ridley is aware, proof of the matters he raises requires a showing beyond the scope of the record on appeal. For this reason, the California Supreme Court has held that a claim of ineffective assistance of counsel based on counsel’s alleged failure to act in a particular manner should be raised in a habeas corpus proceeding. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [a claim of ineffective assistance of counsel relating to “why counsel acted or failed to act in the manner challenged . . . is more appropriately decided in a habeas corpus proceeding”]; see also People v. Jones (2003) 29 Cal.4th 1229, 1263 [issues requiring review of matters outside the record are better raised on habeas corpus rather than on direct appeal].)
IV. Sufficiency of the Evidence/New Trial Motion
Ridley alleges that the evidence was insufficient to convict him and that the trial court abused its discretion in denying his motion for a new trial because Ridley denied shooting the victims; his denial is corroborated by the absence of gunshot residue on the black Camaro, Ridley, or Jenkins; and because Jenkins’s testimony was coerced and untrue. The evidence was sufficient to convict Ridley. The two surviving victims of the shooting testified that they saw Ridley from a short distance away, that they recognized him, and that he was the person who shot them. In the absence of physical impossibility or inherent improbability, neither of which exists here, this eyewitness testimony is sufficient to support the conviction. (People v. Allen (1985) 165 Cal.App.3d 616, 623, disapproved on other grounds in People v. Berry (1993) 17 Cal.App.4th 332, 338-339.)
The trial court’s denial of a motion for new trial based on newly discovered evidence is reviewed for an abuse of discretion. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1252.) The trial court did not abuse its discretion here. Ridley argues that the newly discovered evidence is Jenkins’ declaration that he considered the sounds he heard in the car with Ridley to be popping noises rather than gunshot sounds. It is hard to imagine that Jenkins’ changing characterization of the sound he had long acknowledged hearing could possibly be considered newly discovered evidence, when he testified both that he had heard popping sounds and that he had told the police that it sounded like gunshots. Even if it can be considered newly discovered evidence, a trial court has discretion to deny a motion for new trial when that evidence would not likely result in a different verdict upon retrial. (People v. Delgado (1993) 5 Cal.4th 312, 328.) Here, with two testifying victims who identified Ridley as the shooter, there was substantial evidence even apart from Jenkins’s testimony to support the verdict. Whether Jenkins characterized the sounds he heard as popping sounds or as gunshots is not reasonably likely to have resulted in a different verdict. We cannot say that the trial court abused its discretion in denying the motion for a new trial.
V. Abstract of Judgment
A. Section 12022.5, Subdivision (a) Enhancements
The trial court sentenced Ridley to 25 years to life in prison for first degree murder plus a consecutive 25 years to life pursuant to section 12022.53, subdivision (d), for personally and intentionally discharging a firearm in a manner that proximately caused death. On each count of attempted murder, the trial court imposed a sentence of life imprisonment with the possibility of parole, plus a consecutive enhancement term of 25 years to life pursuant to section 12022.53, subdivision (d), for personally and intentionally discharging a firearm in a manner that proximately caused great bodily injury. In addition, the trial court imposed, then stayed pursuant to section 654, three 10-year firearm enhancements under section 12022.5, subdivision (a), one for each count. In a supplement to his opening brief, Ridley requests that this court strike the three stayed enhancements under section 12022.5, subdivision (a) because the court imposed sentence enhancements under section 12022.53, subdivision (d).
The issue whether lesser enhancements should be stricken, stayed or simply not imposed at all when separate firearm enhancements under sections 12022.5 and 12022.53 are found true and the longest enhancement is imposed is currently pending before the California Supreme Court in People v. Gonzalez, review granted March 14, 2007, S149898. Pending further guidance from the Supreme Court, this court follows the decision in People v. Bracamonte (2003) 106 Cal.App.4th 704. In Bracamonte, the court held that where section 12022.53’s maximum subdivision (d) enhancement is imposed, lesser firearm enhancements under the specific Penal Code sections enumerated in subdivision (f) of section 12022.53 are to be stricken. (Id. at p. 711; see § 12022.53, subd. (f) [“An enhancement involving a firearm specified in Section 12021.5, 12022, 12022.3, 12022.4, 12022.5, or 12022.55 shall not be imposed on a person in addition to an enhancement imposed pursuant to this section.”].) Thus, in light of Bracamonte, the trial court should have stricken the enhancements under section 12022.5, subdivision (a), and we order that those enhancements be stricken.
B. Error in the Abstract of Judgment
In the course of our review, we discovered an error in the abstract of judgment. The abstract of judgment indicates that Ridley was sentenced to 25 years to life on counts 1, 2, and 3, when in fact the sentence on each of counts 2 and 3 was life with the possibility of parole. We remand the matter for correction of the abstract of judgment.
VI. Sentencing Issues
Ridley makes several challenges to his sentence. He complains that the trial court selected the upper term on the three stayed enhancements under section 12022.5, subdivision (a), and claims that two of them should be reduced to the midterm. This argument is invalid because the court relied on Ridley’s prior felony conviction as one of the grounds for imposing the upper term on this enhancement (People v. Black (2007) 41 Cal.4th 799, 816 (Black) [“imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions”]), and it is also moot because we have ordered the three section 12022.5, subdivision (a) enhancements be stricken in section V, ante.
Ridley next contends that the trial court erred in imposing consecutive sentences on the enhancements imposed under section 12022.53, subdivision (d) on Sixth Amendment grounds. He alleges that this was error for two reasons. First, Ridley argues that the trial court believed that it had no discretion but to impose “consecutive sentences on the 12022.53 enhancements,” when in fact it could have ordered them to be served concurrently. Ridley is incorrect: The trial court had no discretion to run a 12022.53, subdivision (d) enhancement concurrently with the term of imprisonment for the substantive offense to which the enhancement was attached. Section 12022.53, subdivision (d) provides that the term of imprisonment for that enhancement must be a consecutive term: “an additional and consecutive term of imprisonment in the state prison for 25 years to life.” This means that the 12022.53, subdivision (d) enhancement must be run consecutively to the term for the substantive offense to which it is attached.
The decision in People v. Oates (2004) 32 Cal.4th 1048, on which Ridley relies, does not support his argument. In Oates, the California Supreme Court responded to Oates’ argument that imposing multiple enhancements under section 12022.53 makes a defendant’s punishment for a shooting dependent on the number of people present even when only one person is injured. The Oates court explained that trial courts have means to resolve any perceived inequities in sentencing: “Moreover, as the People note, a trial court can mitigate concerns about sentencing inequities by imposing concurrent, rather than consecutive, sentences where multiple subdivision (d) enhancements are found true. Thus, defendant’s assertion regarding possible sentencing anomalies does not justify departing from the statutory language.” (Oates, at p. 1060.) With this language the Supreme Court did not hold that despite the language of the statute the enhancements need not be imposed consecutively; it simply observed that if a trial court perceived unfairness in the imposition of multiple section 12022.53 enhancements, it could resolve that unfairness by exercising its discretion to impose concurrent sentences when a defendant has committed multiple crimes.
Ridley next argues that “the logic of Cunningham [v. California (2007) 549 U.S. ___ [127 S.Ct. 856]] requires that consecutive sentences must rest on factual findings by the jury, not preponderance of the evidence findings by the trial judge.” Ridley’s consecutive sentencing argument under the Sixth Amendment was rejected by the California Supreme Court in Black, supra, 41 Cal.4th at pages 820 through 823.
In the course of our review of this matter, we requested additional briefing on the question of whether the trial court properly understood and exercised its discretion to determine whether to designate the sentences on counts 2 and 3 (for each count, the term of imprisonment for the offense combined with its associated consecutive enhancement) as consecutive or concurrent to the sentence on count 1. It appears that the trial court was unaware that even though the section 12022.53, subdivision (d) enhancements were statutorily required to be imposed consecutively to the substantive offense with which they were associated, the court nonetheless had discretion to decide whether to run the total sentences on counts 2 and 3—each a life sentence with the possibility of parole plus a consecutive sentence of 25 years to life—consecutively to or concurrently with the sentence on count 1. (§ 669 [“When any person is convicted of two or more crimes . . . the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively. Life sentences, whether with or without the possibility of parole, may be imposed to run consecutively with one another, with any term imposed for applicable enhancements, or with any other term of imprisonment for a felony conviction”].)
We must conclude, however, that this error was not preserved for review. Ridley did not argue at sentencing that the court had failed to exercise its sentencing discretion. He did not file a sentencing memorandum, failed to argue this error before the court, and did not assert error even when the trial court specifically invited counsel to point out any errors in the court’s sentencing analysis. Counsel merely asked, “Your Honor feels that it must be consecutive, is that right?” The court responded, “I have no discretion. Under [section] 12022.53[, subdivision] (d) it is consecutive.” Rather than argue error, defense counsel merely said, “We had disagreed with it but I will submit the matter.”
The trial court’s error of law in failing to consider whether to run the sentences on counts 2 and 3 consecutively or concurrently with the sentence on count 1 was therefore waived, and in light of the fact that the resultant sentence was not illegal, we are unable to reach this issue on direct appeal. Although the manifest absence of any conceivable tactical purpose for counsel to have permitted this error of law to go unchallenged at sentencing would tend to suggest that this court could consider the question of ineffectiveness of counsel on direct appellate review (People v. Nation (1980) 26 Cal.3d 169, 179 [considering ineffectiveness question on direct appeal where there could have been no valid tactical reason for failing to object]), Ridley has not argued ineffectiveness or error in this regard, even in response to this court’s request for additional briefing on the question. As Ridley has effectively declined to argue this issue on appeal, the issue may therefore be considered, if at all, only on habeas corpus review.
Ridley did respond to this court’s letter requesting additional briefing, but he reiterated the sentencing-related points from his opening brief rather than offering argument in response to our request.
DISPOSITION
The three enhancements imposed but stayed pursuant to section 12022.5, subdivision (a) are stricken. As modified, the judgment is affirmed. The clerk of the superior court is ordered to prepare an amended abstract of judgment as set forth in this opinion and to forward a copy to the Department of Corrections.
We concur: PERLUSS, P. J., WOODS, J.