Opinion
A149655
05-17-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL REDELL SMITH, JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. C175211)
Michael Redell Smith, Jr. appeals his conviction, following a jury trial, of second degree murder. He argues (1) he was denied effective assistance of counsel in connection with evidence relating to his self-defense claim, (2) the jury was improperly instructed regarding the custodial status of witnesses, and (3) his sentence on a firearm enhancement should be remanded pursuant to recent legislation. We agree with the third contention, and otherwise affirm.
BACKGROUND
On July 30, 2010, appellant shot Montego Bey Joshua. The People argued the killing was premeditated and deliberate; appellant claimed he fired in self-defense.
Prosecution Case
In 2008 or 2009, Joshua and appellant worked together as tattoo artists in a shop owned by Sherry Miller. The two men argued continuously, and Miller figured eventually one would kill the other. At some point prior to Joshua's death, appellant told Miller that if he ever saw Joshua again he would kill him, but Miller did not take the threat seriously. Miller was in custody at the time of her testimony because the prosecutor was "making me testify and I don't want to."
Joshua had been in prison for most of his life, for offenses including robbery and assault with a firearm. At the time of his death, he had been out of prison for approximately seven years and, according to his mother, was living a crime-free life and did not have any guns.
Joshua's goddaughter, Precious Jackson, was with him on the day he was killed. Joshua was "normal" and "happy" that day, and did not mention appellant. Joshua and Jackson approached several people standing on the sidewalk in front of a shop, including a pregnant woman. After exchanging greetings, Joshua and Jackson stood next to a parked truck, slightly apart from the group. Appellant approached Joshua and said, " 'didn't I tell you next time I seen you I was going to kill you.' " Jackson saw appellant shoot Joshua in the throat. As she ran away, she heard two more shots. She continued running, and then saw appellant drive by in a burgundy car with the pregnant woman. Appellant waved a gun at her as they drove by.
On July 30, 2010, Kaamil Al-Hassan was a passenger in a car on her way to work. Al-Hassan saw Joshua fall to the ground screaming, with blood coming from his mouth and chest, and then saw a man with a gun walk unhurriedly with a woman to a parked burgundy car.
Joshua died from multiple gunshot wounds, including a wound in his neck which was blackened around the edges, indicating the gun was fired very close to the skin, probably between one and three inches away. Police also found a fresh bullet strike mark in the street. No weapons were found near Joshua's body.
Lieutenant Tony Jones investigated the shooting. During the investigation, he learned about an alleged incident in which Joshua, armed with a gun, and some friends got into an altercation with appellant and Dierra Irving, appellant's then-girlfriend and the mother of his children. Jones learned of another incident where Irving was allegedly attacked by a group of girls. In late 2010, Jones learned appellant might be in Oregon. In early 2014, Jones learned appellant was back in Oakland and appellant was arrested.
In 2016, while appellant was in custody, law enforcement intercepted a letter from appellant to Irving in which he appeared to be telling her how to testify. The letter included the following: "Look at these jury instructions [for self-defense and imperfect self-defense] this is what we have to prove."; "You were so scared you froze when you saw him and [Jackson] walk up."; "You just knew he would kill us."; "Me scared gets me home! Me angry sends me to prison!"; "You always say that you want to be an actor. Oscar time!"
Defense Case
Appellant and Irving testified for the defense. Appellant met Joshua through a motorcycle group and they became friends. When they worked together in Miller's shop, Joshua kept a gun at his work station. Joshua told appellant he had been to prison for armed robbery and assault.
In the spring of 2009, the two friends joined a new motorcycle club. Appellant later distanced himself from the club because of its involvement in illegal activities, while Joshua remained loyal. Joshua and other club members began to threaten and harass appellant and Irving. In one of these incidents, Joshua held a gun to appellant's head while another man beat up Irving; in another incident, appellant was shot at either by Joshua or by someone in a car with Joshua. In May 2010, a club member shot at appellant (but missed) while Joshua stood by as a lookout. After this incident, appellant obtained a gun for protection and carried it with him whenever he left home. He saw Joshua a few times after getting the gun but tried to avoid him because appellant did not want any problems. He denied telling Miller that he would kill Joshua the next time he saw him.
On July 30, 2010, appellant and Irving, who was about six months pregnant, were talking with a friend outside of a shop. During this conversation, appellant realized Joshua was standing about five or six feet behind him. Appellant became nervous and then saw his friend grab Irving and saw other people around them start to run. Appellant turned and saw Joshua approaching with his hand in his jacket as if pulling out a weapon. In a panic, appellant drew his gun and fired into the ground. He reached for Irving and ran to his car, firing three or four shots behind him as he ran. The two immediately drove away. Appellant did not know Joshua was dead until a few days later. Irving testified that she saw Joshua approach appellant and reach into his jacket, but then appellant's friend turned her around and she did not see the shooting.
Appellant and Irving moved to Oregon after the shooting because they were afraid of retaliation by the motorcycle club members. Appellant admitted writing the letter to Irving while in jail but said he was not trying to influence her testimony, but rather trying to get her back and "show her that I had a chance." He gave her the self-defense jury instructions because previously they both had believed self-defense did not exist in California. The reference to "Oscar time!" was an inside joke between him and Irving.
Verdict and Sentence
The jury found appellant not guilty of first degree murder, but guilty of second degree murder (Pen. Code, § 187, subd. (a)). The jury found true the allegation that appellant personally and intentionally discharged a firearm causing Joshua's death (§ 12022.53, subd. (d)). Appellant was sentenced to 15 years to life on the murder charge, plus a consecutive 25 years to life term for the firearm enhancement.
All undesignated section references are to the Penal Code.
DISCUSSION
I. Ineffective Assistance of Counsel
Appellant contends his trial counsel was ineffective for failing to secure the admission of certain evidence favorable to the defense. We reject the claim.
" '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.] . . . Defendant . . . bears the burden of establishing constitutionally inadequate assistance of counsel.' " (People v. Gray (2005) 37 Cal.4th 168, 206-207 (Gray).)
A. Natashia Smith
At the preliminary hearing, the defense presented Natashia Smith. Smith was Joshua's long-term partner and the mother of his child. Joshua had told Smith about a conflict he had with appellant, and Smith witnessed an incident where Joshua was with other members of the motorcycle club who "pulled pistols out" during an encounter with appellant. However, she had never seen Joshua with a gun and was not aware of him having guns. She had heard other members of the motorcycle club, but not Joshua, make threats against appellant and/or Irving. After Joshua was killed, Irving told Smith "if I didn't watch what I said, she would kill me the same way [Joshua] was killed."
At trial, during the prosecution's case-in-chief, appellant's counsel asked to read Smith's preliminary hearing testimony at trial. Counsel represented that the People had subpoenaed Smith as a trial witness but later decided they would not call her, at which point defense counsel called Smith and reminded her of the subpoena. However, when defense counsel spoke with Smith the previous night, she informed counsel she was going out of state and would not be coming to court. The trial court queried whether Smith was an unavailable witness because defense counsel had not sought a warrant to ensure her attendance. Defense counsel argued she was unavailable, but added: "If the Court would like to consider this and make a decision, that would be fine. We do not -- it is not pressing. Our case will not close until next week." The trial court took it under consideration, but there is no record the court ever ruled. Neither Smith nor her preliminary hearing testimony was presented at trial.
Appellant argues trial counsel was ineffective in failing to either obtain a ruling on Smith's availability to testify at trial or secure the appearance of Smith at trial. Appellant argues Smith would have provided critical testimony corroborating the testimony of appellant and Irving that members of Joshua's motorcycle club had threatened them.
" '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. . . . If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation.' " (Gray, supra, 37 Cal.4th at p. 207.) We presume trial counsel had a valid reason for deciding not to secure Smith's testimony, either in person or through her preliminary hearing testimony. As set forth above, some of Smith's preliminary hearing testimony was harmful to appellant, and counsel could reasonably have made a strategic decision not to present her testimony. Appellant argues trial counsel stated on the record his longstanding intent to secure the testimony and it is thus "unsustainable" to speculate that counsel made a strategic decision not to pursue it. But counsel may have changed his mind upon reflection or learned new information. On direct appeal, appellant cannot overcome the presumption that trial counsel acted competently.
B. Jackson's Statement to Police
During cross-examination of Jackson, appellant's counsel asked whether she recalled telling police about an incident in which Joshua "pulled out a shotgun . . . .' " Jackson testified she did not recall making the statement. Appellant contends defense counsel then tried to impeach Jackson with her prior statement to police. The trial court sustained the prosecutor's hearsay objection, and appellant concedes this ruling was proper. Immediately thereafter, however, Jackson testified she was not aware if Joshua had guns. Appellant argues trial counsel was ineffective in failing to then reintroduce the statement to police as a prior statement inconsistent with Jackson's testimony that she was not aware if Joshua had guns.
Assuming counsel's performance was deficient in this regard, appellant fails to establish prejudice. First, Lieutenant Jones testified about what appears to be the same incident, when Joshua had a gun during an altercation with appellant and Irving. Although, as appellant notes, Jones testified he was told about the incident but was unable to substantiate that it happened, there was nonetheless evidence that a person or persons told Jones of this incident. Second, regardless of Joshua's general possession of or access to guns, forensic evidence directly contradicted appellant's testimony about the shooting itself. The skin around the edges of the bullet wound in Joshua's neck indicated the gun was fired between one and three inches away, contradicting appellant's testimony that he fired first at the ground and then fired additional shots while running away; this evidence also corroborated Jackson's testimony that appellant shot Joshua in the throat. Appellant's testimony was also significantly undermined by the testimony of the passerby Al-Hassan—who had no apparent connection with either Joshua or appellant—that after the shooting a man with a gun unhurriedly walked to his car, and by appellant's letter to Irving urging her to testify in accordance with his self-defense theory. It is not reasonably probable that the admission of Jackson's prior statement to the police about Joshua pulling out a gun would have changed the verdict.
Appellant emphasizes other forensic evidence, to wit, that police found a strike mark in the pavement. Although, as appellant argues, this evidence is consistent with his testimony that he fired at the ground, it also is not inconsistent with Jackson's testimony or the People's theory. Jackson testified that after she saw appellant shoot Joshua in the throat, she ran away and heard, but did not see, additional gunshots. Police found blood around the strike mark suggesting, as the People argued in closing, that appellant shot at Joshua after he fell to the ground.
Appellant also contends the trial court's ruling sustaining the People's hearsay objection, while concededly proper as a matter of evidentiary law, violated his constitutional right to a fair trial. We reject the challenge. " 'As a general matter, the "[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense." ' " (People v. Boyette (2002) 29 Cal.4th 381, 427-428.) Where, as here, " ' "there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense," ' " due process is not violated. (Id. at p. 428.)
II. Instruction on In-Custody Witnesses
The trial court provided the jury with the following instruction: "When Sherry Miller and Michael Smith testified, they were in custody. The fact that a witness is in custody does not by itself make a witness more or less believable. Evaluate the witness's testimony according to the instructions I have given you." (CALCRIM No. 337.)
Appellant argues CALCRIM No. 337 "tells jurors not to consider the fact that a witness is in custody" and therefore the jury was precluded from considering that Miller's testimony may have been impacted by the fact that the People had her incarcerated to secure her testimony. We disagree. The instruction only directs jurors that a witness's custodial status "does not by itself make a witness more or less believable." (Italics added.) This language does not preclude the jury from considering the circumstances by which the witness became incarcerated. Moreover, the jury was instructed on witness credibility with CALCRIM No. 226, which included the direction that: "In evaluating a witness's testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony," including "What was the witness's attitude about the case or about testifying?" and "Was the witness's testimony influenced by a factor such as bias or prejudice . . . ?" There is no reasonable likelihood the jury interpreted the instructions in the manner suggested by appellant. (People v. Solomon (2010) 49 Cal.4th 792, 822 [" 'A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant.' "].)
In contrast, for example, CALCRIM No. 337 provides an alternative instruction for witnesses in physical restraints, which directs the jury: "You must completely disregard this circumstance in deciding the issues in this case. Do not consider it for any purpose or discuss it during your deliberations."
Appellant contends the cumulative effect of errors denied him a fair trial. We have rejected his claims of error regarding Natashia Smith and the in-custody witness instruction; we found any deficient performance by his counsel with respect to Jackson's prior statement to the police not prejudicial. "There are no additional errors to cumulate and therefore no cumulative prejudice." (People v. Cunningham (2015) 61 Cal.4th 609, 649.) --------
III. Firearm Enhancement
Appellant argues he is entitled to a remand of his firearm enhancement pursuant to new legislation which grants trial courts the discretion to strike or dismiss a firearm enhancement. (§ 12022.53, subd. (h) [eff. Jan. 1, 2018]; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679 [§ 12022.53, subd. (h) applies retroactively in cases that are not yet final on appeal on its effective date].)
The People argue it is "unlikely" the trial court would strike the firearm enhancement in light of the nature of the crime, appellant's flight to Oregon, and his jail letter to Irving. In People v. Gutierrez (1996) 48 Cal.App.4th 1894, cited by the People, a California Supreme Court case clarified while the appeal was pending that trial courts had discretion to strike certain prior convictions; the Court of Appeal found it unnecessary to remand because the trial court stated on the record that, even if it had the discretion to strike the prior conviction, it would not have done so. (Id. at p. 1896.) The trial court made no such statement in this case, and it should properly determine in the first instance whether to exercise its discretion. We will reverse and remand the enhancement.
DISPOSITION
The section 12022.53 enhancement is reversed and remanded to permit the trial court to exercise its discretion under section 12022.53, subdivision (h). In all other respects, the judgment is affirmed.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
NEEDHAM, J.