Opinion
B225736
02-02-2012
THE PEOPLE, Plaintiff and Respondent, v. CARL ROBINSON and DONTE MORELAND, Defendants and Appellants.
Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant Carl Robinson. Mark S. Givens, under appointment by the Court of Appeal, for Defendant and Appellant Donte Moreland. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven E. Mercer and Blythe J. Leszkay, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. GA077134)
APPEAL from a judgment of the Superior Court of Los Angeles County, Leslie E. Brown and Michael D. Carter, Judges. Affirmed as modified.
Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant Carl Robinson.
Mark S. Givens, under appointment by the Court of Appeal, for Defendant and Appellant Donte Moreland.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven E. Mercer and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
Carl Robinson and Donte Moreland appeal from the judgments entered following their convictions by jury on charges related to two separate shootings. The first trial against Robinson resulted in a hung jury, but he was convicted in a second trial of three counts of attempted murder and one count of shooting at an occupied motor vehicle. (Pen. Code, §§ 664/187, subd. (a), 246.) Moreland was convicted in the first trial of four counts of attempted murder, two counts of possession of a firearm by a felon, and one count of shooting at an occupied motor vehicle. (§§ 664/187, 246, 12021, subd. (a)(1) (repealed by Stats. 2010, ch. 711, § 4, operative Jan. 1, 2012).) We conclude that the trial court erred in calculating Moreland's presentence custody credits and therefore direct the superior court to modify the abstract of judgment to reflect presentence custody credits of 759 days. We affirm in all other respects.
Further statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
We set forth only the facts as to an August 2007 shooting with which both Moreland and Robinson were charged. Moreland also was charged with the attempted murder of Tomas Torres, based on a shooting on September 24, 2007. Because Moreland raises no issues on appeal concerning the September shooting, we do not include the facts relevant to that incident. Robinson was charged with two counts related to a July 2007 shooting, but the jury deadlocked on those counts, and the court subsequently dismissed them. We therefore do not include the facts relevant to the July 2007 incident.
Prosecution Evidence
On August 16, 2007, around 11:00 p.m., Jessica Quintana (Jessica), her brother Jonathan Quintana (Jonathan), and her boyfriend Diego Perez (Perez), drove to Perez's house on Goodall Avenue in Duarte in a car owned by Jessica and Perez. Jessica was in the driver's seat, Perez in the passenger seat, and Jonathan in the rear passenger seat. Jessica parked in front of the house, and she and Jonathan waited in the car while Perez went into the house to get something. Jessica did not see anyone near the car while they were waiting.
After Perez came out of the house and got into the front passenger seat of the car, someone began shooting at the car. As soon as Jessica heard the gunshots, she ducked her head and started driving away. Perez told Jessica to start driving, and he reached over to help steer the car.
Jessica stated that the shots were coming from behind them, but she did not see who was shooting. Perez testified at both trials that the shots were coming from behind them, but he never turned around to see who was shooting at them. Jonathan looked back, but he only saw a shadow and could not see who was shooting. He was unsure if there were one or two people.
They drove down the street to a park, where they switched drivers so that Perez was now driving. Perez dropped Jessica off at her mother's house, and Perez and Jonathan drove away.
Perez and Jonathan drove around and were stopped by police an hour or two later. Jonathan testified that, after dropping Jessica off, they went to get money to buy gas in order to take Jonathan to work. They did not report the shooting to the police. The two right car windows were broken.
Perez testified at the first trial that, when he and Jonathan were pulled over, they told the police that someone shot at them in front of Perez's house. Perez said he did not see the shooter. Jonathan told the officer that he kept his head down to avoid being hit, so he did not see the shooter. Jonathan was grazed on his back by a bullet.
Los Angeles County Deputy Sheriff Bernie Lopez and his partner responded to the shooting and found shattered glass and bullet casings at the scene of the shooting. While they were investigating, they learned that the victims of the shooting had been found, so they went to interview Perez and Jonathan. According to Deputy Lopez's report, Perez told them that one Black male approached their car from the rear and fired shots into the car, but he did not know who the person was. Jonathan said he did not see the shooter.
During the second trial, the People presented the testimony of Perez's sister, Mariela Perez (Mariela), who lived with Perez. She was inside the house and heard four gunshots and the sounds of a muffler and a car "peeling out." It was dark outside, and there were no street lights outside their house. Mariela walked outside and saw broken glass in front of the house. She was worried about her brother, so she drove around to look for him, but she could not find him. When she returned home, the police were there, so she told them what she had heard.
The following morning, Mariela saw glass and bullet casings near a house up the street, so she called Deputy Lopez, who came to retrieve them. The bullets were near the home of Brandon Lee, a house where Mariela thought gang members congregated.
Mariela was familiar with two gangs in the area, but she did not think that her brother was a gang member. Mariela described one gang, Duarte Eastsiders, as primarily Hispanic and the other, Durocs, as primarily African-American.
Over defense objections, Mariela testified that a few days after the shooting, Perez told her there was more than one shooter, and that one of them was named Donte. Mariela had heard of someone named Donte in the neighborhood, but she would not have been able to identify him. Perez testified that he never told Mariela who shot at him and that he did not talk to her at all.
In December 2007, Perez went to a sheriff's station to retrieve his car, which had been impounded for an unrelated reason. Detective Scott Schulze gave him release forms in order to retrieve his car and began questioning Perez about gang-related activity in Duarte. When Detective Schulze realized that Perez was one of the victims of the August 2007 shooting, he showed Perez some photographs that included Moreland and Robinson (also known as C-way or C-ray) and asked Perez to point out anyone he knew. Perez knew Moreland from school, so he identified him as someone he knew. At the time, Detective Schulze was only trying to confirm Moreland's identity, rather than investigate the shooting. Perez did not identify Robinson as the shooter at that time.
After speaking with Detective Schulze, Perez signed a complaint refusal form, stating that he did not want to be involved in prosecuting the case. Perez testified that he did not want to be involved because no one was hurt in the shooting.
Detective Schulze closed the case in February 2008, but it was reopened shortly thereafter as part of a task force investigation of shootings in the area. At the first trial, Detective Schulze stated that the case was closed for lack of evidence.
At the second trial, while cross-examining Detective Schulze, defense counsel attempted to ask him why he closed the case and did not submit it to the district attorney to file charges, but the court stopped the questioning and held a sidebar. Defense counsel explained that he was attempting to determine if Detective Schulze closed the case because of lack of evidence as well as the inability to prosecute, but the court found that this was inadmissible evidence of the officer's opinion regarding the defendant's guilt or innocence.
Detective Schulze testified that Perez told him that, on the night of the shooting, he looked back and saw Moreland shooting at him from behind a wall and Robinson standing in the street, shooting at them. According to Detective Schulze, Perez told him that he had known Moreland for years and that he had seen Robinson in the neighborhood on several occasions.
On March 11, 2008, Detectives Timothy Brennan and Andrew Dahring interviewed Perez at his house and recorded the interview. Detective Brennan testified that Perez identified Robinson and Moreland in photograph lineups as the shooters, and the photographs were admitted into evidence.
Detectives Brennan and Dahring interviewed Jonathan in April 2008 and recorded the interview. The detectives told Jonathan that he was charged with criminal threats, but that they would help him with the charge if he helped their investigation of the August 2007 shooting. Jonathan told the detectives he had lost the opportunity for a promotion at work because officers repeatedly came to his work to speak with him about the shooting, so the detectives assured him they would speak to his manager at work.
Jonathan told the detectives he was not from the area and was not familiar with the people, but he knew the shooters' names were "C-way or C-ray and Donte." The detectives asked Jonathan to identify them from photograph lineups, and he identified someone he thought was "C-way," but he told the detectives he did not know what the other person looked like. He then said he was not sure and did not know. The detectives then asked him about a specific photo and asked him to eliminate photos that definitely were not "C-way." Jonathan then identified the two people he thought were the shooters.
Jonathan testified at Robinson's second trial and denied identifying anyone. The recording of the interview with Detectives Brennan and Dahring was played at the trial, but Jonathan denied that was his voice on the recording.
Robert Keil, a Sheriff's Department criminalist, testified at the second trial that the bullet casings recovered from the scene were fired from two different firearms. Moreland's Evidence
We do not include Robinson's evidence because his evidence related only to the July 2007 shooting.
Moreland called Kenneth Dagdigian, a former police officer and private investigator, who testified that he visited the scene of the shooting on Goodall Avenue. He testified that all the street lights on the street are on the east side, and that there is no illumination on the side of the street where Perez's house was located. Dagdigian testified about a website for weather conditions, and the parties stipulated that the moon set at 9:30 p.m. on the night of the shooting. Dagdigian then stated that he visited the crime scene on October 18, 2009, the night before his testimony, which was a night with no moon. At this point, the prosecutor requested a sidebar.
The prosecutor explained that defense counsel earlier had mentioned that, when defense counsel and Dagdigian visited the crime scene, defense counsel saw Perez on the street. Although the prosecutor already had told defense counsel that he had no objection to Dagdigian's testimony, he now realized that the fact that defense counsel could recognize Perez in the dark undermined the defense theory that the lighting on the night of the shooting was insufficient to identify the shooters.
After further discussion, the court indicated its inclination to strike all the testimony, but defense counsel argued that he had relied on the prosecutor's representation that there was no objection to Dagdigian's testimony, and that to strike the testimony would deny Moreland a fair trial. The court decided to strike the entire line of testimony, on the ground that the lighting on the street in 2009 was not relevant to the conditions at the time of the shooting in 2007. The stipulation that there was no moon on the night of the shooting remained.
The case was submitted to the jury, and, after several days of deliberations, the jury indicated that it was hopelessly deadlocked as to all counts against Robinson and one allegation against Moreland. The court thus found the jury was hopelessly deadlocked and declared a mistrial as to all counts against Robinson and as to the allegation in count 8 against Moreland that the attempted murder of Torres was willful, deliberate, and premeditated. Moreland was found guilty of all the counts against him and sentenced to a determinate term of 59 years and an indeterminate term of 15 years to life. He received credit for 657 days of actual custody and 98 days of good time/work time credit for a total of 755 days.
Robinson's motion to dismiss was denied, and a second trial was held. After the second trial, the jury again deadlocked as to the two counts concerning a July 2007 shooting. Robinson was convicted of the other counts.
The court denied Robinson's motion for a new trial and sentenced Robinson to 15 years to life, plus a consecutive 20-year sentence for the firearm allegation, on counts 3, 4, and 5, for attempted murder. (§§ 664/187, subd. (a), 12022.53, subd. (b).) The court imposed the sentences on counts 3 and 4 to be consecutive because there were two separate victims. The court found mitigating circumstances based on its review of the probation report. The court then stated that the victim in count 3, Perez, was outside the car when the shots were fired, but the victims in counts 4 and 5 were both inside the car, so the sentence on count 5 was imposed concurrent to the sentence on counts 3 and 4. As to count 6, shooting at an occupied motor vehicle, the court imposed a term of 15 years to life plus a 20-year term for a firearm allegation, concurrent to the sentence on counts 3, 4, and 5. Both appellants filed timely notices of appeal.
DISCUSSION
Robinson's Claims
Robinson raises the following arguments. First, Robinson contends that the trial court violated his rights to compulsory process, due process, and a fair trial, by denying his request to call the prosecutor as a witness to impeach Perez's statements identifying him. Second, Robinson contends that the trial court erred in admitting testimony by Mariela that was irrelevant, incompetent, and hearsay. Robinson's third contention is that the trial court violated his rights to confrontation, due process, and a fair trial by usurping the prosecutor's role and making erroneous objections and inequitable rulings. Fourth, Robinson contends that he was denied effective assistance of counsel when defense counsel erroneously explained the beyond-a-reasonable-doubt standard to the jury. Finally, Robinson challenges his sentence, arguing that the trial court abused its discretion in imposing consecutive terms.
I. Denial of Request to Call Prosecutor as Witness
Robinson challenges the trial court's denial of his request to call the prosecutor as a witness to impeach the testimony of Detective Stewart Levin. He contends that the exclusion of the testimony violated his rights to compulsory process, due process, and a fair trial. The court did not err or abuse its discretion in denying his request to call the prosecutor.
"In general, the '"[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense." [Citations.]' [Citations.] We have recognized, however, that Evidence Code section 352 must yield to a defendant's due process right to a fair trial and to the right to present all relevant evidence of significant probative value to his or her defense. [Citation.] [¶] Although the complete exclusion of evidence intended to establish an accused's defense may impair his or her right to due process of law, the exclusion of defense evidence on a minor or subsidiary point does not interfere with that constitutional right. [Citation.] Accordingly such a ruling, if erroneous, is 'an error of law merely,' which is governed by the standard of review announced in People v. Watson (1956) 46 Cal.2d 818, 836. [Citation.]" (People v. Cunningham (2001) 25 Cal.4th 926, 998-999 (Cunningham).)
"The prohibition against a lawyer's acting as both advocate and witness 'is a necessary corollary to the more fundamental tenet of our adversarial system that juries are to ground their decisions on the facts of a case and not on the integrity or credibility of the advocates.' [Citation.]" (People v. Donaldson (2001) 93 Cal.App.4th 916, 928 (Donaldson).)"Although acting as both advocate and witness 'is a situation to be avoided if possible,' a prosecutor can do so 'in extraordinary circumstances and for compelling reasons, usually where the evidence is not otherwise available.' [Citation.] After testifying, however, the prosecutor should 'withdraw from any further participation' in the case. [Citation.]" (Id. at p. 930; see also People v. Garcia (2000) 84 Cal.App.4th 316, 332 ["Only in extraordinary circumstances should an attorney in an action be called as a witness, and before the attorney is called, defendant has an obligation to demonstrate that there is no other source for the evidence he seeks."].)
During Perez's testimony at the first trial, the prosecutor questioned him about a conversation at the courthouse between Perez, the prosecutor, and Detective Levin, in which Perez allegedly asked them why he was subpoenaed to testify. Perez testified that he already knew why he was there. The prosecutor then asked Perez if he remembered telling them that he knew who shot at him but was not going to say anything, and Perez testified that he did not remember saying that. Defense counsel then requested a sidebar and raised the concern that he had not received discovery regarding the conversation, and that the conversation suggested that Perez had implicated Robinson and Moreland. The court ordered the entire line of questioning stricken, admonishing the prosecutor that the incident was not "as casual as you portray it to be."
At the hearing on Robinson's motion to dismiss after the mistrial, the prosecutor argued that the excluded conversation would be presented in the second trial and would support conviction. The prosecutor stated that Perez's statement to him and Detective Levin was, "I know exactly who did this. I'm not going to say who it is."
After the jury was chosen for the second trial, defense counsel asked the trial court to allow him to call the prosecutor as a witness because the prosecutor's description of the conversation between himself, Detective Levin, and Perez was different from Detective Levin's description. Because Detective Levin's account was more incriminating of Robinson than the prosecutor's, defense counsel wanted to call the prosecutor to impeach Detective Levin.
Specifically, defense counsel wanted to impeach Detective Levin's statement that Perez not only told them he knew who did it, but he further said, "I wish they were out. I could put them away for a long time, but I'm not going to." The trial court denied the request, stating that the two accounts of the conversation were not inconsistent. The court further reasoned that any inconsistency should have been discovered and raised after the mistrial, rather than just before the second trial began.
During the second trial, Perez denied telling the prosecutor and Detective Levin, "I know who did it, but I'm not going to say," "I wish they were out," and "I could put them away for a long time, but I'm not going to." Detective Levin testified that Perez did make those statements, and he specifically stated in response to questioning that Robinson and Moreland were in custody at the time that Perez stated, "I wish they were out." Detective Levin expressed his belief that Perez was referring to Robinson and Moreland, because Perez glanced toward the courtroom when he said, "I could put them away for a long time." However, Detective Levin did not know whether Perez was referring to Moreland or Robinson.
We emphasize that Robinson does not challenge the admission of Detective Levin's testimony that Perez said he knew who shot at him. Rather, Robinson contends that he should have been able to impeach Detective Levin's account that Perez also said, "I wish they were out. I could put them away for a long time, but I'm not going to." He argues that his inability to call the prosecutor to impeach this statement impaired his ability to defend against Perez's identification of him as the shooter. Thus, the excluded evidence was central to his defense, not minor or subsidiary. We disagree.
It is true that Perez's identification of Robinson as one of the shooters was key to the prosecution's case. However, the prosecutor's account of the conversation with Perez does not differ significantly from Detective Levin's account. Whether or not Perez said, "I wish they were out," the gist of the conversation as recounted by both the prosecutor and Detective Levin was that Perez knew who shot at him. Even if the prosecutor had testified, his testimony would have corroborated Detective Levin's testimony that Perez knew the identity of the shooters.
Moreover, there was other evidence that Perez knew who shot at him and had identified Robinson as one of the shooters, even though he denied doing so at trial. For example, his sister, Mariela, testified that he told her he knew who shot at him, and Detective Brennan testified that Perez identified Robinson in a photo lineup. In addition, there was evidence that Jonathan identified Robinson as one of the shooters. Thus, even if the prosecutor had been called to impeach part of Detective Levin's account of the conversation with Perez, "it does not appear that . . . the resulting testimony would have produced evidence of significant probative value to the defense." (Cunningham, supra, 25 Cal.4th at p. 999.)
Robinson relies on Crane v. Kentucky (1986) 476 U.S. 683 (Crane), to argue that the exclusion of the evidence violated his constitutional rights. In Crane, the trial court denied the request of the defendant, who was 16 years old at the time of the offense, to introduce evidence about the physical and psychological environment in which his confession to a murder was obtained. He sought to testify that he had been detained in a windowless room for a protracted period of time, was occasionally surrounded by six officers, and repeatedly requested, but was denied, permission to call his mother. The prosecution's case rested almost entirely on the confession, which contained inconsistencies with the evidence of the crime. The United States Supreme Court held that the exclusion of the evidence denied the defendant of the opportunity to present a meaningful defense. (Id. at pp. 690-691.)
Crane is distinguishable. There, "the prosecutor stressed that [its] case rested almost entirely on petitioner's confession and on the statement of his uncle, who had told the police that he was also present during the holdup and murder." (Crane, supra, 476 U.S. at p. 685.) The voluntariness of the confession accordingly was key to the prosecution. The "entire defense was that there was no physical evidence to link him to the crime and that, for a variety of reasons, his earlier admission of guilt was not to be believed. To support that defense, he sought to paint a picture of a young, uneducated boy who was kept against his will in a small, windowless room for a protracted period of time until he confessed to every unsolved crime in the county, including the one for which he now stands convicted." (Id. at p. 691.) The Court reversed, stating that there was no "rational justification for the wholesale exclusion of this body of potentially exculpatory evidence." (Ibid.)
By contrast, in the instant case, the prosecution's case did not rest entirely on Detective Levin's account that Perez said, "I wish they were out. I could put them away for a long time, but I'm not going to." Nor did Robinson's defense rest on the alleged difference between the prosecutor's and Detective Levin's accounts of the conversation. As discussed above, the difference between the two accounts was insignificant, and they were consistent as to the crucial issue of Perez's knowledge of the identity of the shooters.
Robinson argues that the exclusion of the prosecutor's testimony was prejudicial because the first trial ended in a hung jury. However, the evidence of this conversation was not the only difference between the two trials. The People presented testimony by additional witnesses during the second trial, including Perez's sister Mariela, Jonathan, and Keil. Thus, the second trial included evidence that Perez told his sister he knew the perpetrators, that Jonathan identified Robinson as a shooter, and that there were two shooters.
Robinson also relies on People v. Stokley (1968) 266 Cal.App.2d 930, 934-937 (Stokley), which held that the prosecutor did not engage in misconduct when he took the stand in order to prove an alleged incriminating statement made by the defendant to a bail bondsman. The bondsman's testimony regarding a conversation with the defendant differed from the version the bondsman earlier had told the prosecutor, so the prosecutor took the stand to testify that the defendant had admitted the crime to the bondsman.
On appeal, Stokley stated that "[a]n attorney acting as counsel in a case is competent to testify like any other witness. [Citations.] And a district attorney is not precluded from testifying as to material facts within his knowledge. [Citation.]" (Stokley, supra, 266 Cal.App.2d at p. 936.)
Stokley was decided in 1968, and, as the court noted in Donaldson, "[t]he American Bar Association Model Code of Professional Responsibility, which . . . served as the national standard of professional conduct from 1969 to 1983, . . . tightly circumscribed the practice of a lawyer's acting as both advocate and witness." (Donaldson, supra, 93 Cal.App.4th at p. 927.) Thus, the Rules of Professional Conduct now specifically "prohibit[], with few exceptions, a lawyer from acting as both advocate and witness." (Ibid.)
The first two exceptions to the prohibition against a prosecutor acting as both advocate witness - the "'uncontested issue' exception" and "testimony about 'the nature and value of legal services'" - are "patently inapplicable" in this case. (Donaldson, supra, 93 Cal.App.4th at p. 929.) The only exception that could possibly apply here is for "'extraordinary circumstances and for compelling reasons, usually where the evidence is not otherwise available.' [Citation.]" (Id. at p. 930.) However, as discussed above, the prosecutor's account of the conversation was not significantly different from Detective Levin's, so the prosecutor's testimony would have only corroborated Detective Levin's testimony. This situation does not present extraordinary circumstances and compelling reasons that override the prohibition against a prosecutor acting as witness.
II. Admission of Testimony of Mariela Perez
Robinson challenges the trial court's admission, over defense objections, of testimony by Mariela regarding alleged gang activity in the neighborhood and Perez's alleged statement to Mariela that he knew who shot at them and named Moreland as one of the shooters.
The trial court's admission of evidence is reviewed for abuse of discretion. (People v. Avitia (2005) 127 Cal.App.4th 185, 193 (Avitia).)"The trial court's ruling will not be disturbed in the absence of a showing it exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. [Citation.]" (Ibid.)
"[A]s [a] general rule, evidence of gang membership and activity is admissible if it is logically relevant to some material issue in the case, other than character evidence, is not more prejudicial than probative and is not cumulative. [Citation.]" (People v. Albarran (2007) 149 Cal.App.4th 214, 223.) "The erroneous admission of gang or other evidence requires reversal only if it is reasonably probable that appellant would have obtained a more favorable result had the evidence been excluded. [Citations.]" (Avitia, supra, 127 Cal.App.4th at p. 194.)
Mariela's testimony regarding alleged gang activity near the home of Brandon Lee, up the street from her brother's home, was relevant because the jury needed to determine the gang allegation with which Robinson was charged. (§ 186.22, subd. (b)(1)(C).) Moreover, in addition to Mariela's testimony, there was testimony by law enforcement officers, and there were field interview cardsand photographs admitted into evidence that supported the gang allegation. Thus, even if the admission of Mariela's testimony was erroneous, it is not reasonably probable that Robinson would have obtained a more favorable result had her testimony been excluded. (Avitia, supra, 127 Cal.App.4th at p. 194.)
A field interview card is used by officers when contacting suspected gang members in the field to note information such as name, description, tattoos, gang affiliation, and the circumstances of the contact.
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Similarly, another issue in the case was whether Perez knew who shot at him. Mariela's testimony was relevant to this issue. Although Perez denied speaking to detectives or identifying the shooters when he testified, the testimony of Detective Brennan and an audio recording played for the jury indicated that Perez did know the identity of the shooters. The admission of Mariela's testimony therefore was not an arbitrary, capricious, or patently absurd decision that resulted in a miscarriage of justice. (Avitia, supra, 127 Cal.App.4th at p. 193.)
Robinson also argues that Mariela's testimony that Perez told her he knew who shot at them was inadmissible hearsay. Evidence Code section 1235 provides that "[e]vidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with [Evidence Code] Section 770." Under Evidence Code section 770, "an inconsistent statement is not admissible unless the witness either testified and was given 'an opportunity to explain or to deny the statement' or 'has not been excused from giving further testimony in the action.' (Evid. Code, § 770, subds. (a) & (b).)" (People v. Martinez (2003) 113 Cal.App.4th 400, 407-408.)
Here, Perez testified and was given the opportunity to deny the statement, which he did. He testified that he never told Mariela who shot at him. The statement accordingly was admissible under Evidence Code section 1235.
III. Trial Court's Alleged Usurpation of Prosecutorial Role
Robinson contends that the trial court usurped the prosecutor's role and made erroneous and inequitable rulings. He challenges the court's rulings limiting defense counsel's cross-examination of Detectives Schulze and Brennan.
In the first trial, defense counsel asked Detective Schulze about his decision to close the case in February 2008. Detective Schulze testified that he closed the case for lack of evidence even though Perez had identified Robinson as one of the shooters. He explained that he closed the case based on the district attorney's filing guidelines and Perez's unwillingness to testify. Defense counsel asked if he ever had filed cases with only one witness, and Detective Schulze acknowledged that he had. In closing argument, defense counsel argued that Detective Schulze did not submit the case to the district attorney because of insufficient evidence.
In the second trial, defense counsel again asked Detective Schulze why he did not submit the case to the district attorney for filing. Similar to the first trial, he asked if Detective Schulze ever submitted cases for filing where there was only one witness, but the court stopped the questioning and expressed concern that the line of questioning was an attempt to determine Detective Schulze's state of mind and his opinion of Robinson's guilt. The court excluded the testimony over defense counsel's objection.
Robinson also contends that the court's limitation of defense counsel's cross-examination of Detective Brennan constituted judicial misconduct. The excluded evidence was similar to the court's limitation of Detective Schulze's cross-examination.
Defense counsel attempted to ask Detective Brennan about the gang task force's decision not to arrest Robinson, even though many active members of the Duroc Crips had been arrested as a result of the task force's work. However, the court again questioned the relevance of the testimony and excluded it.
"As a general rule, judicial misconduct claims are not preserved for appellate review if no objections thereto were made at trial. [Citation.] Nonetheless, a defendant's failure to object does not preclude review 'when an objection and an admonition could not cure the prejudice caused by' such misconduct. [Citations.]" (People v. Perkins (2003) 109 Cal.App.4th 1562, 1567.) "'A trial judge may examine witnesses to elicit or clarify testimony [but he or she] must not become an advocate for either party or under the gui[s]e of examining witnesses[,] comment on the evidence or cast aspersions or ridicule on a witness.' [Citation.]" (Ibid.)
The record does not indicate that the trial court commented on the evidence or cast aspersions or ridicule on a witness. Rather, the trial court excluded evidence that it found to be irrelevant, a decision that is reviewed for abuse of discretion. (Avitia, supra, 127 Cal.App.4th at p. 194.) This decision was not an abuse of discretion. The detectives' decisions as to whether to file the case or when to arrest Robinson were irrelevant to whether the evidence as presented at trial was sufficient to prove Robinson's guilt.
IV. Effective Assistance of Counsel
Robinson contends that he was denied effective assistance of counsel when defense counsel erroneously explained the beyond-a-reasonable-doubt standard to the jury. He cites the following statement of defense counsel in describing the standard: "When you go out here today on your way home, you are going to pull out of the parking structure or whatever, and at some point you are going to be at the stoplight. When you come to that stoplight at some point the light that you are looking at is going to turn green. Guess what? You are going to drive through it. And you know why you are going to drive through it? Because from your every day experiences you know that if your light is green you are pretty sure that the light in the opposite direction is red. You are pretty sure of that. [¶] Now, could they have malfunctioned and now you are going to crash? Absolutely. But you are pretty sure that the light opposite you is red, beyond a reasonable doubt."
"'In assessing claims of ineffective assistance of trial counsel, we consider whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] A reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. [Citations.]'" (People v. Gamache (2010) 48 Cal.4th 347, 391.)
Our courts "'have 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 must be rejected."' [Citation.] 'Because claims of ineffective assistance are often more appropriately litigated in a habeas corpus proceeding, the rules generally prohibiting raising an issue on habeas corpus that was, or could have been, raised on appeal [citations] would not bar an ineffective assistance claim on habeas corpus.' [Citation.]" (People v. Blair (2005) 36 Cal.4th 686, 726.) "'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.'" (In re Cox (2003) 30 Cal.4th 974, 1019-1020.)
Here, even if counsel's performance was deficient (an issue we do not decide), appellant suffered no prejudice, because the jury was properly instructed by the trial court on the reasonable doubt standard. In addition, the court instructed the jury that "[y]ou must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions." The jury is presumed to have followed the trial court's instructions. (People v. Lindberg (2008) 45 Cal.4th 1, 26.) Robinson accordingly is unable to show prejudice from defense counsel's alleged error.
Because we disagree with Robinson's arguments, we reject his claim that the alleged errors were cumulatively prejudicial to his right to a fair trial.
V. Imposition of Consecutive Terms
Robinson's final claim is that the trial court abused its discretion in imposing consecutive terms on counts 3 and 4. The court's stated reason for imposing consecutive sentences was that the shooting toward Perez was a separate incident from the shooting toward Jonathan and Jessica because Perez was outside the car when the shots were fired at him. This finding, however, is not supported by the evidence. All the evidence presented at trial indicated that Perez was already inside the car when the shots were fired.
Respondent contends that Robinson forfeited this claim by failing to object to the imposition of consecutive sentences. "A trial court has discretion to impose consecutive sentences where, as here, a single act has resulted in crimes against multiple victims." (People v. Leon (2010) 181 Cal.App.4th 452, 468.) "'Although the court is required to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing. Routine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention.' [Citation.]" (People v. Bonnetta (2009) 46 Cal.4th 143, 152.)
Robinson contends that defense counsel was not required to make a futile objection to the court's imposition of consecutive sentences because the court already had denied his request in his sentencing memorandum for concurrent sentences. In the sentencing memorandum, Robinson argued that concurrent sentences were appropriate because the alleged shooting was based on one incident.
When the court announced its tentative ruling that it would impose consecutive sentences, it stated that it would explain its reasoning later. The court then allowed the parties to be heard. Defense counsel did not question the imposition of consecutive sentences, and by the time the court gave its reason for the consecutive sentences, the opportunity for objection had passed.
"Strong policy reasons support [the forfeiture] rule: 'It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. [Citations.]' [Citation.] '"'"The law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal."'" [Citation.]' [Citation.]" (People v. Stowell (2003) 31 Cal.4th 1107, 1114.)
Here, although the court had not yet explained its reasons for the imposition of consecutive sentences, defense counsel had the opportunity to be heard about the tentative ruling and did not raise the issue. If he had done so, the court easily could have explained further or avoided the error, if any.
Robinson contends that the insufficiency of evidence to support the trial court's exercise of discretion is not forfeited for failure to object, citing People v. Butler (2003) 31 Cal.4th 1119 (Butler). Butler is inapposite because it dealt with the trial court's obligation under section 1202.1 to make a finding and note that finding when ordering a defendant to submit to HIV testing. The court held that the defendant did not forfeit a challenge to the sufficiency of the evidence to support such an order because "involuntary HIV testing is strictly limited by statute and Penal Code section 1202.1 conditions a testing order upon a finding of probable cause." (Id. at p. 1123.)
In contrast to section 1202.1's requirement of a finding of probable cause, the imposition of consecutive sentences does not require factual findings. (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1324 (Crabtree))The court in Crabtree explained: "'In deciding whether to impose consecutive terms, the trial court may consider aggravating and mitigating factors, but there is no requirement that, in order to justify the imposition of consecutive terms, the court find that an aggravating circumstance exists.' [Citations.] Factual findings are not required. In imposing an upper term, the court must set forth on the record "facts and reasons" [citation], including the "ultimate facts that the court deemed to be circumstances in aggravation" [citation]. But it need only cite "reasons" for other sentencing choices [citation], and the reasons given for imposing a consecutive sentence need only refer to the "primary factor or factors" that support the decision to impose such a sentence. [Citations.]" (Id. at pp. 1324-1325.)
Robinson also contends that the imposition of consecutive sentences based on a factual finding not supported by the evidence violates his right to due process, as articulated by Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). In Apprendi, the United States Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Id. at p. 490; see also Cunningham v. California (2007) 549 U.S. 270 [applying Apprendi to California's determinate sentencing scheme].)
The California Supreme Court has held that Apprendi and its progeny do not apply to the imposition of consecutive terms. (People v. Wilson (2008) 44 Cal.4th 758, 813; Crabtree, supra, 169 Cal.App.4th at p. 1324; People v. Martinez (2008) 166 Cal.App.4th 1598, 1604-1605.) The trial court's imposition of consecutive sentences accordingly is affirmed.
Moreland's Claims
Moreland joins in Robinson's arguments and further contends that the trial court abused its discretion and violated his constitutional rights by striking in its entirety the testimony of his only witness. Moreland also contends that the trial court incorrectly calculated his presentence custody credits. Respondent concedes that Moreland is entitled to additional presentence custody credit.
I. Exclusion of Testimony of Dagdigian
Moreland contends that the trial court abused its discretion in striking Dagdigian's entire line of testimony. He concedes that the court "arguably" was correct in finding that testimony regarding the lighting conditions in 2009 were not relevant to the lighting conditions at the time of the shooting in 2007, but he argues that the rest of Dagdigian's testimony should not have been stricken.
Specifically, Moreland cites Dagdigian's testimony authenticating photographs of Perez's house, the street, and the driveway of the house, as well as Dagdigian's testimony regarding a wall separating Perez's house from the house next door. He argues that this evidence describing the crime scene was material to his defense because such evidence is always relevant, and there was testimony that Moreland was standing behind a wall when he shot at the victims.
Although it was clear that Moreland objected to the trial court's decision to strike the entire line of testimony, and he asked that the stipulation regarding the lack of a moon on the night of the shooting remain, he did not object to the exclusion of the evidence describing the crime scene on the basis that he raises on appeal.
Evidence Code section 354 provides that "[a] verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and," as pertinent here, "(a) [t]he substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means," or "(b) [t]he rulings of the court made compliance with subdivision (a) futile." (See People v. Fauber (1992) 2 Cal.4th 792, 854 [holding that the defendant was precluded from complaining on appeal about the exclusion of evidence when he did not "specifically raise this ground of admissibility" that he raised on appeal].)
Defense counsel specifically asked that the stipulation regarding the moon be allowed to remain but did not ask about the photographs and testimony describing the crime scene. Under these circumstances, the substance, purpose, and relevance of the excluded evidence regarding the crime scene was not made known to the court. (See Evid. Code, § 354.) Moreland accordingly is precluded from raising this argument on appeal.
Moreland also contends that the trial court's ruling deprived him of his rights to due process, to present a defense, and to a fair trial. "Although defendant contends that the ruling denied him various rights under the state and federal Constitutions, he did not object on these grounds in the trial court, and thus he has not preserved these constitutional claims for appellate review. [Citation.]" (People v. Kipp (2001) 26 Cal.4th 1100, 1122.)
II. Presentence Custody Credit
Moreland argues, and respondent concedes, that he is entitled to additional days of presentence custody credit. The trial court gave Moreland credit for 657 days actual custody and 98 days good time/work time credit, for a total of 755 days.
An error in the calculation of custody credits is an unauthorized sentence which can be corrected at any time, as long as it is not the only issue raised on appeal. (People v. Duran (1998) 67 Cal.App.4th 267, 270.) Moreland is entitled to presentence custody credit for all days spent in custody. (§ 2900.5; People v. Johnson (2010) 183 Cal.App.4th 253, 289.)
Moreland was arrested on October 1, 2008, and sentenced on July 22, 2010. Therefore, he was in presentence custody for 660 days. He is entitled to 15 percent of work time credit, which is 99 days. (§ 2933.1, subd. (a).) Moreland's total credits therefore should be 660 plus 99 days, which is 759 days. The abstract of judgment should be amended to reflect a total of 759 custody credits.
DISPOSITION
We direct the clerk of the superior court to amend the abstract of judgment in Moreland's case to reflect presentence custody credits of 660 days of actual custody credits and 99 days of good time/work time credits for a total of 759 days, and to forward a copy of the modified abstract to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
EPSTEIN, P. J.
SUZUKAWA, J.