Opinion
B229393
10-26-2011
THE PEOPLE, Plaintiff and Respondent, v. STEVEN D. RIVERA, Defendant and Appellant.
Landra E. Rosenthal, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Richard S. Moskowitz, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. VA101714)
APPEAL from the judgment of the Superior Court of Los Angeles County. Robert J. Higa, Judge. Affirmed as modified.
Landra E. Rosenthal, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Richard S. Moskowitz, Deputy Attorney General, for Plaintiff and Respondent.
Appellant and defendant Steven Daniel Rivera was convicted of two counts of first degree murder for the gang-related shootings of Richard Hernandez and Juan Alviso. The jury found true all the alleged enhancements, including that the victims were killed by means of lying in wait, the murders were committed to further the activities of defendant's gang, and defendant personally and intentionally discharged a firearm causing the victims' deaths. Defendant was sentenced to life without possibility of parole on each count, plus 25 years to life on each count for the firearm-use enhancements. The court stayed sentencing on the other special allegations and enhancements. The court imposed and stayed a parole revocation restitution fine of $250 on each sentence pursuant to Penal Code section 1202.45.
Defendant contends he was denied his constitutional right to the effective assistance of counsel because counsel did not request an alibi instruction. He also claims his sentence must be modified by striking the parole revocation fines. We find defendant failed to demonstrate he was denied the effective assistance of counsel. However, we find the judgment should be modified by striking the parole revocation fines because defendant was not sentenced to a determinate prison term under Penal Code section 1170.
The burden is on defendant to establish ineffective assistance of counsel by a preponderance of the evidence. (People v. Ledesma (1987) 43 Cal.3d 171, 218.) "[A] defendant seeking relief on the basis of ineffective assistance must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel's failings." (People v. Cudjo (1993) 6 Cal.4th 585, 623, citing Strickland v. Washington (1984) 466 U.S. 668 (Strickland).)
This burden can be stringent. When 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.' [Citation.] 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; People v. Jones (2003) 29 Cal.4th 1229, 1254 [ineffective assistance claim properly resolved on direct appeal only where record affirmatively discloses no rational tactical purpose for counsel's actions].)
Defendant contends that, because he relied on an alibi defense and instructions on alibi are not required to be given sua sponte (People v. Freeman (1978) 22 Cal.3d 434, 437-438), trial counsel was ineffective for failing to request an alibi instruction. Respondent concedes that defendant would have been entitled to an alibi instruction if he had requested it. Respondent argues, however, that defendant failed to show his counsel did not make a deliberate and reasonable decision not to request an alibi instruction, and defendant has not demonstrated prejudice. Respondent also argues the instructions as a whole were not misleading and adequately instructed the jury on the factors it should consider in evaluating eyewitness testimony, the elements of murder, the presumption of innocence, the beyond a reasonable doubt standard of proof, and the right to be acquitted in the absence of such proof. (People v. Castillo (1997) 16 Cal.4th 1009, 1014-1016 [rejecting claim of ineffective assistance where counsel did not request pinpoint instruction where instructions as a whole were not misleading and did not hinder the defense argument].)
There are several references in the record to the preparation of jury instructions, but the conferences among counsel and with the court to settle the instructions were not reported. Apparently, as is customarily the case, the prosecuting attorney provided to counsel and the court a set of proposed instructions. After the jury was excused on the fourth day of trial, the court held a conference with counsel off the record to discuss the instructions. At the end of the fifth day of trial, the court inquired about the instructions on the record. Defense counsel told the court the instructions were in the courtroom and he had gone through about half of them. Before excusing the jury for the day, the court told the jury they would hear the last witnesses testify the next morning, after which the court would instruct them and counsel would make their closing arguments. The next day, the court told the jury that counsel had agreed to the packet of instructions. On the record, counsel withdrew one instruction that did not apply, and the court added a standard concluding instruction to the packet and then proceeded to read the instructions to the jury. While counsel and the court clearly devoted the necessary attention to preparation of the instructions, counsel was not asked on the record to explain why he did not request an alibi instruction.
There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' [Citation.]" (Strickland, supra, 466 U.S. at p. 689.) The failure to request a pinpoint instruction is one of those decisions by counsel that is traditionally deemed to fall within the realm of trial tactics which the court will not scrutinize with judicial hindsight, particularly where it appears that counsel may have prudently decided not to highlight the evidence to which the instruction related. (People v. Freeman (1994) 8 Cal.4th 450, 495.) We cannot say there was no satisfactory explanation for counsel choosing not to ask for an alibi instruction. To the contrary, we perceive sound tactical reasons why counsel may have chosen not to focus the attention of the jury on the limited alibi evidence in the record and instead to focus the defense on impeaching the testimony of the prosecution witnesses, particularly the eyewitnesses to the murders.
Two eyewitnesses testified they saw defendant shoot the victims in broad daylight in the middle of the street near the ABC Market and a school. One of the eyewitnesses, according to defendant's own testimony, had known defendant since he was 14 years old. This witness, R.R., had been a volunteer coach at the nearby park. He testified that he was going to the market when he heard a voice calling "Coach [R.R.]" The voice came from the back seat of a car parked in the street. R.R. walked up to the car and saw defendant sitting in the back seat with his brother, Richard, smoking marijuana. Defendant asked R.R. what he was up to and invited him to get into the car. Defendant said he was waiting for someone. R.R. did not get in the car, and defendant told him to "go before something happens," adding that he did not want R.R. "to get caught around there."
R.R. crossed the street heading toward the market and saw a white van pull into the parking lot of the market, back out and park on the street. As he watched, the car in which defendant had been sitting with his brother pulled up alongside the white van. R.R. watched defendant get out of the back seat holding two guns, which he immediately began shooting into the car. R.R. hid behind a street pole, then ran behind a wall. He saw a child hiding behind the phone booth outside the market, picked him up and and then ran inside the market with him. R.R. saw another child hiding behind a car, grabbed him by the backpack and pushed him into the market. Shortly after he entered the market, R.R. was shoved to the floor from behind by the man who had been a passenger in the van; he fell against R.R., bleeding profusely from the mouth. After police arrived, R.R. spoke to an officer but gave only partially truthful information, because he had lived in the neighborhood 17 years, gang members were gathering around the market signaling to him to say nothing, and he feared retribution.
R.R. saw defendant two days later at a nearby swap meet. Defendant beckoned to R.R. to come speak with him. When R.R. drew near, defendant lifted his sweater to display a gun in the waistband. Defendant told R.R. that "his friends" wanted to "take him out," and defendant told them R.R. was "a cool person" and "not to worry." But defendant warned R.R., "If I gotta do what I gotta do, I'll do it." R.R. asked defendant why he shot the victims, and defendant replied they had once disrespected him. At trial, defendant admitted knowing R.R. and having seen him at the swap meet but denied making the statements threatening R.R. to keep quiet.
When R.R. spoke with the sheriff's homicide detective investigating the murders about two weeks after the shootings, he identified defendant in a photographic lineup as the person who "shot the two guys in the van." R.R. identified defendant as "Steven, Little Bam Bam from J.I.B. [sic]." R.R. also identified defendant at the preliminary hearing as the shooter and said he was known as Bam Bam.
The second eyewitness, N.T., testified that while driving to work, he saw a light gray, four-door car pull out into traffic about 100 feet ahead of him, near the ABC Market and the school. He saw the car come to a stop next to a white van with two men inside. N.T. stopped at a crosswalk about 150 feet behind the van. N.T. watched as defendant got out of the car, withdrew a gun and fired in through the front driver's side window of the white van. He saw the passenger get out of the car and run into the market. N.T. got a good, unobstructed look at defendant as he turned to get back into his car, even locking eyes with him for a moment. Watching the car carrying defendant as it "peeled off," N.T. pursued the car in an effort to get the license plate but did not succeed.
There were many trial witnesses. Among them was a firearms identification expert who testified that the seven cartridge casings collected at the scene of the murders all had been fired from the same gun. He also testified that five bullets the coroner had removed from the victims' bodies were all fired from the same firearm, though he was unable to determine whether the cartridges came from the same gun as the bullets.
A gang expert testified defendant was a member of J.B.I., a gang known by several names with those initials, including "Just Blasting Idiots," "Just Blazing It," and "Just Being Insane." Its primary activities include murder, attempted murder, and assault with a deadly weapon, among other crimes. The shootings were not committed in J.B.I. territory but in the territory of the rival 18th Street gang, which had several ongoing feuds with J.B.I. at the time of the shootings. At least one of the victims was tattooed with the initials of another rival gang, the Bell Gardens Locos. Among other things, the gang expert explained the importance of respect in gang culture; it is gained by committing murder, and lost by an insulting act by a rival gang.
The only evidence of an alibi came from defendant himself and was uncorroborated. Defendant denied shooting the victims. He testified that on May 3, 2007, the morning of the shootings, he accompanied his mother to court and was in court all day. His mother did not testify at trial, nor did any other witness testify that defendant was in court on May 3. Defendant offered no court record, subpoena, notice of hearing, parking validation, bus token or any other paper to corroborate his claim that he was in court with his mother that day. Defense counsel could have reasonably concluded the jury would know that, if it were true that defendant was in court at the time of the shootings, it would not have been difficult to corroborate his alibi.
Defendant's self-serving testimony was impeached on other significant points. Defendant testified that a few weeks before the murders, in April, he had been living with his mother in Kettleman City and that he worked odd jobs packing fruit in the fields. He testified that he returned to Southern California on May 1 or 2. (The murders were committed on May 3, 2007.) Defendant admitted on cross-examination that he had told the police he was in Kettleman City when the shootings took place and that he had been there for several months. Police discovered defendant had applied for several jobs in the vicinity of Kettleman City, but all the applications were dated after May 3, 2007. Defendant told the investigating detective that his cousin Tony could corroborate that defendant was in Kettleman City from March through August 2007, but Lara never returned any of the detective's phone calls.
Defendant's credibility was also impeached by evidence that in police interviews, he denied his gang moniker is "Little Bam Bam," even after the detectives confronted him with papers from his home with that name written on them. Defendant testified that he joined his gang when he was 17. His father and brother were "high up" in the gang organization and had served time in prison. He admitted at trial that he was known as "Little Bam Bam," and that he had lied to the police by denying that moniker. R.R., whom defendant admitted he had known since he was 14, testified that defendant was known as "Little Bam Bam."
We can readily understand why counsel may have chosen not to emphasize defendant's weak and uncorroborated alibi evidence and instead to emphasize the inconsistencies in the testimony of prosecution witnesses. The prosecutor in his closing argument said nothing about defendant's testimony that he was in court with his mother at the time of the murders. Instead, the prosecutor argued the jury should not believe defendant's testimony that he did not commit the murders because he had falsely denied his moniker is Little Bam Bam in an attempt to disassociate himself from people in the neighborhood, like R.R., who might tell the police that Little Bam Bam committed the murders. The prosecutor also argued defendant was not a reliable witness because he lied about being in Kettleman City at the time of the murders and lied about job applications and his cousin corroborating that he was there.
In his closing argument, defense counsel attacked the reliability of the eyewitnesses by focusing on evidence impeaching their testimony. For example, when R.R. first spoke to police, he told them the shooter was 5 feet 7 inches tall and weighed about 155 pounds. He did not tell the police about his encounter with defendant before the murders or even that he knew the name of the man who committed them until later. Similarly, the other eyewitness, N.T., told the police at the scene that the shooter was about 5 feet 8 inches tall and weighed about 180 pounds. The jury could see defendant was a much bigger man than either R.R. or N.T. described to police. Defense counsel reminded the jury that the detective in charge of investigating the murders testified that the booking slip at the time of defendant's arrest showed he was 6 feet 3 inches and weighed 275 pounds. Counsel pointed out that R.R. and N.T. gave the police fairly similar descriptions, whereas there was a big difference between their descriptions and defendant's actual size. "It wasn't until later that they started changing their story."
Counsel attacked R.R.'s testimony that he had lied to police because he was afraid for his safety, pointing out the trial took place three years after the murders "and he's still breathing." Counsel also attacked the reliability of N.T.'s testimony about the distance between his car and the car in which defendant was a passenger. N.T. had testified at the preliminary hearing that he was about 30 feet away, but at trial, he testified he was 150 feet away.
Defense counsel also attacked R.R.'s testimony that 23 shots were fired, and that defendant was shooting with two guns "like Wyatt Earp at the Okay Corral." Counsel pointed out N.T. was equivocal about whether there were two guns or only one gun. Counsel pointed out only seven shell casings were found, all fired from the same gun, so R.R.'s and N.T.'s testimony that there were two guns, and R.R.'s testimony that 23 shots were fired, was unreliable because it was not corroborated by the expert ballistics evidence.
Defense counsel argued R.R. was not truthful because he testified that defendant's brother was in the back seat of the car when R.R. spoke to him before the murders. Yet, defendant's brother was not prosecuted because school attendance records showed defendant's brother was in class that morning. Counsel further undermined the reliability of R.R.'s testimony by emphasizing that he had claimed to be a coach at the neighborhood park for 16 years, whereas a parks department employee testified that, based on pay records, R.R. volunteered for only two or three years and was an official for only two or three months. Counsel pointed out that an honest person must know whether he had coached for 16 years or three years.
Counsel made numerous other arguments pointing out the inconsistencies in the prosecution case and the reasons why the jury should believe defendant's denial that he committed the murders. Counsel chose to use defendant's alibi testimony to make the point that the jury should believe defendant was in court that day because defendant had no obligation to admit that he was in Southern California at the time of the murders. Counsel also argued the fact that defendant's mother had to make a court appearance helped explain why defendant was mistrustful of law enforcement. Counsel argued, "This is not the 'Leave it to Beaver' family. . . . His whole family has been put in prison, whether justly or unjustly; I don't know . . . . [¶] But that's the problem his family has had with law enforcement his whole life." Counsel argued it was not hard to understand that, with his family background, defendant would be reluctant to speak candidly with the police after his arrest.
Counsel's failure to ask for an alibi instruction does not demonstrate ineffective assistance of counsel, but appears to have been a reasoned tactical decision. Since defendant has not shown that trial counsel failed to represent him in a manner to be expected of a reasonably competent attorney acting as a diligent advocate, we need not discuss the absence of prejudice to defendant by his counsel not asking the court to give an alibi instruction. Defendant has not demonstrated any basis for reversal of his conviction.
However, the trial court should not have imposed (and stayed) parole revocation fines pursuant to Penal Code section 1202.45. Defendant was sentenced to serve two terms of life without possibility of parole. The court imposed an additional 25 years to life on each count for the firearm use enhancement. Imposition of the parole revocation fine is improper when a defendant is sentenced to life without possibility of parole for first degree murder, even when the defendant is also sentenced to 15 years to life for second degree murder with a firearm enhancement, for which defendant conceivably could be eligible for parole. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183.) The Supreme Court has found Oganesyan does not render improper the imposition of a parole revocation fine in a case where defendant was sentenced to death but also to a determinate prison term, because Penal Code section 3000, subdivision (a)(1) provides that a determinate prison term "shall include a period of parole." (People v. Brasure (2008) 42 Cal.4th 1037, 1075.) Here, neither of defendant's sentences was a determinate prison term under Penal Code section 1170. The sentencing enhancements on the two first degree murder counts do not transform the sentences into determinate sentences for which a parole revocation fine is properly imposed.
DISPOSITION
The judgment is modified by striking the parole revocation fines imposed pursuant to Penal Code section 1202.45. In all other respects, the judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment, without imposition of the Penal Code section 1202.45 parole revocation fine on either count, and to deliver the corrected abstract of judgment to the Department of Corrections.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
GRIMES, J.
WE CONCUR:
RUBIN, Acting P. J.
FLIER, J.