Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, Super. Ct. No. RIF121258, Douglas E. Weathers, Judge. Affirmed in part; reversed in part with directions.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Sharon L. Rhodes, Deputy Attorney General for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
A jury convicted defendant of attempted premeditated and deliberate murder (Pen. Code, §§ 664, 187), during which he discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)) and possession of a handgun by an ex-felon. (§ 12021, subd. (a)(1).) He was sentenced to prison for life, plus 25 years to life, plus 2 years. He appeals claiming the trial court erred in denying his motion for a new trial and in sentencing him. We reject his first contention but agree that the trial court violated section 654 in failing to stay the term for the possession conviction. We therefore affirm the convictions and the sentence for the attempted murder and its enhancement, order the trial court to stay the 2-year term for the possession conviction, and we direct it to amend the minutes of the sentencing hearing and abstracts of judgment to show that the 2-year term for the possession conviction is stayed and to correct other errors in those documents called to our attention by the People.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS
On January 1, 2005, the renter of a bedroom in the victim’s home invited several people, including defendant and his girlfriend, to party in his room. The victim and two friends joined the party, partaking with the others in drinking beer and with some of the others in smoking methamphetamine. After the victim left the party at one point, defendant and his friends talked about the victim’s inappropriate and offensive sexual comments and gestures to the four women in the bedroom. The victim re-entered and left the bedroom several times, at one point slapping the defendant and swearing at him and his male friend. The renter and his girlfriend went into a bathroom to smoke methamphetamine. Defendant’s girlfriend told the police before trial and testified at trial that defendant’s male friend took a gun out of the nightstand in the bedroom, showed it to defendant and said that if the victim continued to annoy them, he had a “toy” for him. She testified that the victim re-entered the bedroom, displayed more obnoxious behavior and defendant escorted her out of the bedroom and put her in the bathroom with the renter and his girlfriend. She and the renter testified and the renter had told the police before trial that she told the renter to return to the bedroom, as defendant had a gun and there was going to be a fight. The renter testified that he returned to the bedroom and saw defendant draw the gun and shoot the victim many times from about two steps away. He had told police before trial that he had seen defendant pull a gun from his waistband and fire at the victim several times from three to five feet away. The renter told a defense investigator that defendant ran from the bedroom holding the gun. Defendant’s girlfriend told police before trial and testified at trial that as she, defendant, his male friend, the renter and his girlfriend sped away from the house in a car, defendant told his male friend that he had shot the victim in the head. The victim had five or six gunshot wounds to his chest, arm and abdomen.
ISSUES AND DISCUSSION
1. Denial of New Trial Motion
In February, 2006, the victim was interviewed on several occasions by an investigator from the district attorney’s office. The victim made statements during those interviews that were repeated by the prosecutor to the jury during his opening statement at trial in late March, 2006. However, shortly before trial began, the prosecutor received a letter from the victim in which the latter said that he was in jail at the time (on an unrelated matter). The victim expressed great fear of the defendant, indicated that something traumatic had happened to him in jail and said that if the prosecutor could help get him out of jail, he would testify for the prosecution against defendant, but if the prosecutor could not, he would have to wait until the victim got out of jail in about six or seven months.
According to the record before us, defense counsel did not become aware of the letter until the day the victim was scheduled to testify, which was the day after the prosecutor made his opening statement. At that point, defense counsel chose not to raise the issue of prosecutorial misconduct. Instead, he waited until the verdicts were returned to raise it in the motion for new trial. In the meantime, specifically, during argument to the jury, defense counsel used the victim’s refusal to testify as a reason for the jury to reject the prosecution’s theory that it was defendant who shot him. However, because defendant can make an arguable case that having the prosecutor’s opening statement stricken and the jury instructed to disregard it a day after it had been made may not have undone any prejudice it caused him, we will ignore the People’s contention that defendant waived his prosecutorial misconduct issue by failing to assert it before the new trial motion. For the same reason, we will not address defendant’s contention that his trial attorney was incompetent for failing to raise the issue prior to the new trial motion.
A few days later, during opening statement to the jury, the prosecutor predicted that the victim would testify that after he was initially shot by defendant, defendant said, “Let’s leave. I just killed this son of a bitch.” The prosecutor said the victim would also testify that the latter barricaded himself in the room in which he had been shot, but defendant returned, forced his way back into the room and shot the victim again. The prosecutor included in his opening statement references to many other pieces of evidence which could be, and ultimately, were supplied by other witnesses who testified for the People, including the fact that another witness saw defendant shoot the victim.
Before the prosecutor’s opening statement, the trial court had instructed the jury that it must determine the facts from the evidence received at trial and not from any other source and that statements made by the attorneys during trial were not evidence. These instructions were repeated at the close of evidence. The court also instructed the jury before the prosecutor’s opening statement, “An opening statement is not evidence. . . . [¶] An opening statement is simply an outline by counsel of what he believes or expects the evidence will show in this trial. Its sole purpose is to assist you in understanding the case as it is presented to you.”
During his argument to the jury, the prosecutor reiterated that what he and defense counsel said was not evidence, including what was said during opening statements.
The defense gave an opening statement just after the prosecutor did. During that statement, the defense asserted that it would present testimony that the victim had purchased 150 or 160 pounds of marijuana within a week or so before the shooting and the motive for the shooting was that he had not paid for the marijuana. Thereafter, the prosecutor informed the trial court that he had not heard about this until the defense’s opening statement. Both parties, however, had been aware for some time that when the victim had been taken to the hospital after the shooting, he had methamphetamine on his person and a white powdery substance and marijuana were found in his room after the crimes. Based on the existence of these drug-related allegations, the trial court appointed counsel to represent the victim. On counsel’s advise, the victim, shortly before he was scheduled to testify, refused to do so on the basis of the Fifth Amendment. After the trial court found the invocation to be proper, it gave the victim use immunity and ordered him to testify. Later, in the presence of the jury, the victim again asserted his Fifth Amendment right and refused to testify. The trial court held the victim in contempt.
The statement was not transcribed for the record. We are relying on the representations by counsel and the trial court on the record before us as to its content.
After the jury returned its verdicts and findings, the defendant brought a motion for a new trial, contending, as is relevant here, that the prosecutor committed misconduct by asserting during opening statement what the victim would testify to at trial when the prosecutor knew from the victim’s letter that the latter would refuse to testify. At a hearing on the motion, the prosecutor stated that “all indications” supported his good faith belief that the victim would testify as the prosecutor had predicted during his opening statement. Among those indications was the fact that the victim had spoken to the prosecutor’s investigator several times and the victim had been “forthcoming” with the former. As the People point out in their brief, everything in the record before us suggests that, despite the receipt of this letter, the prosecutor anticipated the victim testifying. The trial court denied the motion, saying, “[A]lthough the [victim in the letter] . . . is expressing some reluctance or unwillingness, in fact what he’s actually expressing is outright and total fear for the safety of his own life and [that] of his family and . . . children. . . . [¶] [I]t’s not uncommon for witnesses in any criminal case to be frightened or terrified of defendants . . . . [¶] [W]e don’t know all the reasons for his refusal to testify. One of them could be [the defense’s assertion during its opening statement] . . . that the motive for the shooting was . . . because [the victim] had not paid for the . . . [150 or 160 pounds of] marijuana he purchased.” The trial court pointed out that the defense had failed to produce the evidence it predicted it would that the victim was shot because of the marijuana deal, even though the court credited defense counsel with the same good faith he could produce this proof that the prosecutor claimed he had regarding the victim’s testimony. The trial court continued, “[I]f every time a witness expressed some reluctance [to testify], the People [declined to file charges] . . ., we would not be able to try domestic violence cases . . . [or] intrafamilial cases . . . . [¶] . . . [W]hen we know there’s a Fifth Amendment privilege, . . . we [do] as we did with [the victim], we get him an attorney to advise him. We make certain that he is in fact invoking that right, which he did. Then the People went one step further [by] provid[ing him] immunity . . . . At that point in time he had no privilege whatsoever to refuse to testify. [¶] . . . We brought him in, placed him under oath, we asked him to testify, and he refused. The Court ordered him to testify. He again refused. He was then found in contempt and sent out of the courtroom. [¶] [H]ad [the victim] not come into the courtroom, the defense would have been free to argue that the victim wasn’t here, that the People made a representation . . . during opening statement [that he was going to come in], he didn’t, and taken whatever [inference from that] they chose. And until such time as a witness is on the . . . stand under oath and is looking at a jury and . . . a judge and being ordered to testify, no one can assume that that witness is going to simply refuse to testify.”
Defendant here contends the trial court erred in denying his new trial motion on the basis of prosecutorial misconduct. However, he concedes that it is not misconduct for a prosecutor to refer in opening statement to evidence he believes will be produced. (People v. Barajas (1983) 145 Cal.App.3d 804, 809, (Barajas).) As the trial court found, the record before us does not demonstrate that the prosecutor knew for a fact that the victim would not be testifying when the prosecutor made his opening statement. Therefore, the trial court did not abuse its discretion (see People v. Carter (2005) 36 Cal.4th 1114, 1210) in denying the motion for a new trial on this basis.
Barajas, 145 Cal.App.3d 804, which defendant cites in support of his position is distinguishable from the facts here and therefore unpersuasive. In Barajas, the prosecutor was made aware that his witness had recanted statements he had earlier given the police, which statements the prosecutor wished to use during his opening. (Id. at p. 807.) The trial court denied the defense’s request that the prosecution not mention these statements during opening. (Ibid.) During opening, the prosecutor told the jury that he expected an informant to testify to statements he made which helped the police solve the crime and that defendant was responsible. (Id. at p. 809.) He also said that the informant was uncooperative and might not ratify his statements to the police. (Id. at p. 809.) The witness later refused to testify, although granted immunity. (Id. at p. 807.) The trial court also denied the defense’s request that a hearing be held to determine if, in fact, the witness was refusing to testify. (Ibid.) Over defense objection, the prosecutor asked the witness, in the presence of the jury, whether his refusal to testify was due to threats. (Id. at p. 808.) In response, the witness took the 5th. (Ibid.) The Court of Appeal concluded that the prosecutor’s opening suggested to the jury that if the informant were cooperative, he would tie the defendant to the crime. (Id. at p. 809.) The appellate court further observed that since there was little corroboration of the victim’s identification of the defendant, the anticipated testimony was crucial to the prosecution’s case. (Ibid.) The Court of Appeal further noted that the trial court had erroneously denied each request by the defense to mitigate the prejudicial impact of the prosecutor’s remarks and had failed to instruct the jury that such statements were not evidence. (Id. at p. 810.) The appellate court further concluded that by asking the witness leading questions about speaking to the police about the crime, to which he invoked his Fifth Amendment right, the prosecutor conveyed to the jury that this witness was the informant whom the prosecutor predicted during opening might refuse to ratify his early statements tying defendant to the crime and was doing so because of fear. This, the appellate court concluded, along with the opening statement, constituted a prejudicial violation of the defendant’s right to confrontation “by permitting the prosecutor to testify without benefit of cross-examination.” (Id. at p. 810.)
Nor was defendant’s constitutional right to confrontation prejudicially violated by the prosecutor’s opening statement. In Frazier v. Cupp (1969) 394 U.S. 733 [89 S.Ct. 1420] the United States Supreme Court rejected an identical argument where the prosecutor had both reason to believe that a former co-defendant, who had since pled guilty, would testify for the state and reason to believe that he would not. The jury had been instructed that opening statements were not evidence, the anticipated testimony was not vitally important to the prosecution’s case and the prosecutor had not, in his opening, touted it as so. The facts in Frazier are far closer to the facts here than those in the case defendant cites in support of his position on this issue.
See footnote 5, ante.
2. Sentencing
During his opening statement, the prosecutor said only the following about the timing of the alleged offense of being an ex-felon in possession of a handgun, “[That c]ount is that the defendant, having at th[e] . . . time [he shot the victim] been convicted of a felony beforehand . . . .” During argument to the jury, the prosecutor described the evidence establishing the attempted murder, then said, of the-ex felon in possession of a handgun charge, “[D]efendant . . . had a gun on him. . . . [¶] . . . [¶] The second element [of the offense], [that] defendant knew that the gun was there. Well, you don’t rattle off five-plus gunshots and not know you’re holding a firearm.” Thus, in effect, the People elected to consider defendant’s possession of the gun during the shooting as the possession which had been charged.
The issue whether section 654 applies to prohibit sentencing defendant for possessing a handgun was not addressed below. Therefore, the trial court did not have an occasion to make a factual determination whether the possession was merely incidental to or just a means of committing the attempted murder. Accordingly, our traditional role in regard to 654 issues, i.e., of determining whether substantial evidence supports the trial court’s finding that the two crimes could be separately punished (People v. Jones (2002) 103 Cal.App.4th 1139, 1143) cannot be assumed here.
However, because of the election by the prosecution, we agree with defendant that section 654 prohibits sentencing him for the handgun possession. Therefore, we will order the term for that conviction stayed.
b. Term for Attempted Murder
The sentencing court imposed a life term for the attempted murder, noting that defendant would not be eligible for parole for seven years. It imposed a consecutive 25 years to life term for its gun discharge enhancement. The court “totaled” the two terms as 32 years to life. The parties agree that this is incorrect—the proper term for attempted murder is life. The People also correctly point out that the total term for the conviction and enhancement must be life plus 25 years to life.
c. Errors in the Abstract and Minutes
The People correctly point out that the abstracts do not correctly reflect the fact that the sentencing court imposed a restitution fine of $10,000 and the minutes of the sentencing hearing erroneously do not state that a $10,000 fine was imposed pursuant to section 1202.45 and suspended “unless parole is revoked.” Additionally, the minutes of the sentencing hearing and the indeterminate abstract of judgment state that the term for the firearm discharge enhancement on the attempted murder is 25 years, when it is actually 25 years to life. Finally, both abstracts incorrectly show that credits were awarded pursuant to section 4019, when it should have been section 2933.1. This court will direct the trial court to correct these errors.
DISPOSITION
The trial court is directed to stay punishment on Count 2 (possession of a handgun by an ex-felon) pursuant to section 654 and to amend the abstracts of judgment and minutes of the sentencing hearing to reflect this, as well as the corrected total sentence of life plus 25 years to life. The court is further directed to amend these documents in compliance with the views expressed in section 2c of this opinion. In all other respects, the judgment is affirmed.
We concur: McKINSTER, J., RICHLI, J.
Although integral to our agreement with defendant that Barajas governs here, which we reject, defendant’s contention that his trial attorney was incompetent for failing to object to the prosecutor’s opening as soon as he discovered the letter is without merit. Once the words were out of the prosecutor’s mouth, the damage, if any, had already been done. (In fact, defendant, himself, in his opening brief, acknowledges this.) The trial court could have done nothing more than what it did, i.e., instruct the jury that opening statements are not evidence.