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People v. Soto

California Court of Appeals, Fourth District, First Division
Feb 24, 2011
No. D056814 (Cal. Ct. App. Feb. 24, 2011)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. MARIO IVAN SOTO, Defendant and Appellant. D056814 California Court of Appeal, Fourth District, First Division February 24, 2011

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Riverside County No. RIF123809, J. Thompson Hanks, Judge.

HALLER, J.

Mario Soto appeals from a judgment convicting him of first degree murder with a gang special circumstance and gang and firearm discharge enhancements. He asserts error based on: (1) the trial court's exclusion of two items of defense evidence proffered to support his self-defense theory; (2) the prosecutor's closing argument reference to gang evidence as criminal propensity evidence, and (3) ineffective representation arising from his counsel's failure to file a suppression motion. We hold the trial court erred in excluding the proffered defense evidence, but conclude the error was harmless. We reject defendant's other contentions of error.

The Attorney General concedes that defendant is entitled to one extra day of custody credit, and we modify the judgment accordingly. As so modified, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

At about 3:00 p.m. on August 17, 2005, defendant, age 17, shot and killed Dijuan Jones in the town of Rubidoux. Defendant is a member of a Hispanic gang, West Side Riva (Riva), and uses the gang moniker Nemo. Jones, age 22, was a member of a rival African-American gang, West Side Project Crips (Project Crips). In the months prior to the shooting of Jones, there had been several shooting incidents between the two gangs, and the gangs were considered at "war."

On the day of the shooting, Jones, his girlfriend (Alicia Richards), their two children, and Jones's friend (William Berlanga) went to a stereo shop to have stereo installation work performed on Jones's car. While at the shop, an Impala vehicle associated with the Riva gang drove slowly in the alley by the stereo shop. There were four persons in the Impala. Michael Zaragoza, who was in his 30's and a main "shot caller" for the Riva gang, was driving. Richards, who knew defendant, testified that defendant was seated behind the driver's seat, and that defendant and Jones were "mad dogging" each other as the car drove by. Jones also pulled up his shorts and made a gesture with his hands that meant he was challenging someone to fight. The driver of the Impala did not stop but continued driving slowly away.

Richards testified that on previous occasions defendant had come over to her and Jones's house. The prosecution's gang expert explained that the gang rivalry between the Riva and Project Crips gangs existed even between gang members who had gone to school together and been friends when they were younger.

Jones pointed out the Impala to Berlanga. After the car passed by, Jones was acting nervous and started pacing. Jones told Richards that he had "seen the Lobos, " and that she should "[g]rab the kids" and leave with a friend who would give her a ride home. Richards complied and left.

The Lobos are members of a group within the Riva gang.

Berlanga and several other persons witnessed the shooting that occurred shortly thereafter. The witnesses saw a man (later identified as defendant) walking in the alley by the stereo shop. Defendant was wearing blue jean shorts and (even though it was very hot outside) a long-sleeved hooded sweatshirt with the hood covering a large part of his face. Defendant kept the hood of his sweatshirt covering his head during the entire incident. As defendant was approaching the stereo shop, Berlanga saw that defendant had a semiautomatic gun in his waistband.

The temperature was about 110 degrees. A customer at the stereo shop (Megan Darrow) testified she could "barely" see any part of the shooter's face, explaining she could only see his cheekbones, lips, and a bit of his nose. Darrow, Berlanga, and the other eyewitnesses to the shooting were not able to identify the shooter. They described him as a light-skinned, young Hispanic. As we shall detail below, circumstantial evidence tied defendant to the shooting (including Richards's observation of him at the scene engaging in mad dogging behavior), and when interviewed by the police defendant admitted he was the shooter.

Berlanga was sitting in the driver's side seat of Jones's car, and Jones was standing outside the car. Berlanga testified that when Jones saw defendant, Jones retrieved a semiautomatic gun from under the driver's seat, pulled the slide back to chamber a round, and put the gun in the waistband of his shorts. Defendant and Jones walked up to each other, stood by the back of Jones's car, and talked for about five to seven minutes. Berlanga stayed seated in the car.

While defendant and Jones were talking, Berlanga stopped looking at them for a while, but continued glancing back to see what they were doing. Jones did not appear angry but he was "aware" and his "guard" was up. The two men did not raise their voices during the conversation and it did not appear they were speaking in an angry or aggressive manner. At one point when Berlanga looked back he saw that Jones was holding his gun in his hand near his (Jones's) stomach area. At another point Jones had his arms crossed and was holding his gun in his hand under his armpit.

Berlanga heard portions of the conversation between Jones and defendant. Jones said to defendant, "What are your here for?" Defendant responded, "You know what I'm here for." Jones asked if "they were going to do that right there." Defendant answered, "Yes." Jones stated that it was a business place; they should go somewhere else and talk; and "there's no need to do this." Jones continued, "[T]here's been a lot of problems going on in the neighborhood and... there's some things that should be squashed. [¶]... [¶]... If you want me to meet you somewhere, I'll meet you." Defendant answered, "Yeah.... But it's cool." Jones then said, "Nah. Let's just squash this right here between everything, 'cause there's a war going on. Let's just squash it." Defendant responded, "All right." Jones put his gun back in the waistband of his shorts and appeared to relax. The two men continued talking for a while, and then shook hands.

Prosecution witnesses testified that "squash" it meant to end the conflict.

After Berlanga heard Jones say that the situation should be squashed, Berlanga thought things had calmed down and he stopped watching the men. Berlanga then heard three or four gunshots. When Berlanga looked at the men, Jones and defendant were facing each other; defendant had a gun pointed at Jones; and Jones was falling to his knees.

Stereo shop employee Gregory McCandless was working in the garage area of the stereo shop when the shooting occurred. McCandless testified that Jones and defendant were leaning with their backs against Jones's car, and Jones had his arm around defendant. Jones was saying something like, "Don't worry about it.... I'll take care of it"; "I'll get it handled"; "I'll get it straightened out." Defendant's head, covered by the hood of his sweatshirt, was down and he was looking towards the ground, shaking his head "a little bit." The men were not arguing and their interaction did not appear to be confrontational. McCandless continued with his work, and then heard about four gunshots. When he looked over towards the men, he saw that Jones had been shot.

Darrow (a customer at the stereo shop) testified that Jones and defendant were about three to five feet away from each other. Darrow could not hear what defendant said, but she heard Jones say "calm down" to defendant about two or three times. Jones was speaking in a "very calm, collected" manner, as if they were friends. Jones said to defendant: "Don't worry, man. You know, we'll get this taken care of. We'll go somewhere when I'm done here and we'll get this all squared away.... [E]verything will be fine. [¶]... [¶]... We'll be able to go somewhere and talk about this." Darrow felt something was not "right, " so she went inside the shop. About one or two minutes later, she heard about seven to nine gunshots.

Jamal Becton, a telephone service technician working in the alley, testified that Jones and defendant were talking in what appeared to be a normal manner, standing about two and one-half feet apart from each other. Becton heard about five gunshots, turned to look at the men, and saw defendant shooting Jones.

After shooting Jones, defendant ran away down the alley.

Meanwhile, shortly after Jones's girlfriend (Richards) arrived home from the stereo shop, Jones's brother (Richard Whitley) came to the house. Like Jones, Whitley is a member of the Project Crips gang. Richards told Whitley to go to the stereo shop to check on Jones because "the Lobos just rolled through the alley." Whitley and his girlfriend quickly drove to the stereo shop, and when they were almost there, they heard gunshots. Whitley hopped out of the car and ran to Jones, who was lying on the ground next to his car. Whitley yelled "No, " "No, " with a horrified look on his face, and said to Jones, "[h]ang in there, " "keep breathing, " "help's on its way." Whitley ran down the alley and apparently fired several shots at defendant, and then returned to the stereo shop. Darrow saw Whitley pick things up from the ground (which she surmised were bullet casings) and then put them back down.

Whitley did not testify at trial; however, the prosecution's evidence suggested that he shot a gun at defendant. A prosecution witness who saw Whitley leave his car and run towards the stereo shop saw him holding something by his waistband that she thought might be a gun. Witnesses heard gunshots when Whitley ran down the alley after defendant, and Whitley's girlfriend saw Whitley come back from the alley with a gun in his hand. Testing on the day of the shooting showed that Whitley had gunshot residue on his hands consistent with his having recently fired a gun. A revolver was found hidden in a car owned by a member of Whitley's family, and an expended bullet found near a tire shop down the alley was determined to have been fired from that gun.

When the authorities arrived at the scene, Jones was dead. He had incurred wounds from at least four separate gunshots: one from a bullet that entered in his front abdomen; two from bullets that entered in his back; and a fourth from a bullet that went across the back of his head. The prosecution's forensic pathologist testified he could not determine the order in which the wounds were inflicted. He also could not ascertain which of multiple possible shooting scenarios were more likely to have occurred.

The pathologist stated the entrance wound in the front abdomen indicated the gun was facing the victim's front, and the right to left trajectory of the wound suggested the victim's abdomen was somewhat turned. The entrance wounds in the victim's back could have been inflicted with the victim's back turned towards the shooter, or the back wounds could have occurred as the victim was turning or falling after an initial shot to the front abdomen.

The prosecution presented evidence to support its theory that only defendant, not Jones, fired a gun during the incident. Berlanga testified that Jones was trying to stand up after being shot, and when he went to help Jones he noticed that Jones's gun was still in his waistband. A gunshot residue test on Jones's hands showed no residue, which was consistent with him not firing a gun. At the scene of the shooting, the authorities found four expended shell casings stamped ".45 auto Federal" that were determined to have been ejected from the same semiautomatic gun. When searching defendant's bedroom, they found an unexpended Federal.45 caliber round with a casing that was determined to have been stamped by the same tool as the.45 caliber casings found at the scene.

The stamp on the casings was made by a bunter tool. A manufacturer's representative testified that typically the same bunter tool is used to stamp the casings made and boxed in one day (totaling about 120, 000 casings), and the next day a new bunter tool is used.

On the night of the shooting, deputy sheriffs arrested defendant at his home. As the deputies escorted defendant to the patrol car, defendant shouted to his mother in Spanish, " 'Be sure and tell Roberto [his stepfather] that I was here home asleep. He remembers.' " In the washing machine at defendant's residence, the deputies found several dry (apparently unwashed) items of clothing, consisting of a black hooded sweatshirt, blue jean shorts, and two black socks.

Gang Evidence

To support the gang enhancement allegations, the prosecution introduced several evidentiary items showing defendant's gang connections and activity during and after the shooting. Several witnesses testified that defendant was a Riva gang member. Jones's girlfriend testified that defendant was known as Nemo, and prosecution gang experts confirmed that defendant used the gang moniker Nemo or Lil' Nemo. On April 20, 2005, defendant and three Riva gang members or associates were arrested after an African-American man reported being shot at by the Riva gang. On July 30, 2005 (two weeks before the August 17 shooting of Jones), defendant and another Riva gang member committed a carjacking and robbery at gunpoint. On September 11, 2005 (after defendant's arrest for shooting Jones), defendant and another Hispanic jail inmate were involved in a fight with three African-American inmates. In February 2007, the authorities confiscated a CD recording of gangster rap songs in which three unidentified males sang about shootings by the Riva gang, naming "Lil' Nemo" as one of the shooters. In a recorded phone call from the jail on August 16, 2007, defendant spoke to another Riva gang member about crimes committed by various Riva gang members.

The other three gang members were convicted of assault with a deadly weapon and other charges for this offense. Defendant's case was submitted to the juvenile authorities, but the prosecution's witness did not know the resolution of his case.

The prosecution's gang expert testified that because of the war between the two rival gangs that was occurring in 2005, the authorities expected that gang members would be armed for their own protection or to commit crimes. The expert opined that it was significant that about 30 minutes before the shooting defendant, a young "up and comer" gang member was driving by in a car with a shot caller for the gang. A shot caller could call for a killing by spontaneously instructing a gang member to "take care of it" when a particular person is spotted.

The expert explained that mad dogging is a disrespectful "stare down" between two individuals that is "an immediate challenge, " and the failure to respond to the challenge would be viewed as a sign of weakness. The expert opined that Jones had disrespected defendant by mad dogging and raising his hands in a challenge. Further, Jones's display of a gun minutes before the shooting meant that he was "ready to go to war."

The expert testified that the gangs had members who acted as mediators between the two gangs when they wanted to "squash" the war because the "[c]ops are out there." Jones was a high-ranking member of the Project Crips gang who no longer needed to "put in work" (i.e., commit crimes) for the gang. The expert opined that although Jones would be expected to defend his gang in the face of mad dogging from defendant, Jones was in a position to be a mediator to squash the conflict between the gangs because no one would be giving him orders to commit crimes. Jones's statement to a "foot soldier" (i.e., a gang member still required to commit crimes) that they did not need to "do this" could mean they should squash the shootings.

Consistent with the expert's opinion that Jones could have been acting as a mediator, Jones's girlfriend testified that Jones was known as a "peacemaker" between the two gangs who tried to calm things down.

The expert stated that a gang member earns respect by agreeing to immediately commit a crime upon request by the gang, and committing a shooting (especially a walk-up shooting) would earn a high level of respect and fear within the gang culture.

Defendant's Self-defense Claim

When interviewed at the sheriff's station, defendant initially stated he was not present during the shooting and he had been at home sleeping. He later admitted he had committed the shooting, claiming he acted in self-defense. In the recorded interview, defendant stated he was walking in the alley to go to the grocery store when he saw Jones. Jones made a "mean face, " and defendant heard something "cocking back." Jones said "come here let's talk." Jones then started talking about "[a]ll this shit that's been going on" and pulled out a gun. Defendant told Jones to put his gun away and "let's get down."

Jones put his gun back in his waistband but took it out again, stating "naw, there's no way you're getting down." Jones then pointed to the shop's video surveillance camera, stating, "[Y]ou know what, let's keep it cool"; "You see that camera right there? I know you're not stupid you know what I mean?"; "just play it off in front of the camera"; "I'm gonna get you though, watch I'll get you"; "I'll get you fool watch I'll get you like when we're about town." Defendant asked, "why you tripping." Jones shook defendant's hand, and started to turn around to walk away, stating "you ain't nothing but a pussy, I'll get you bitch ass."

The stereo shop had a video surveillance camera, but it was not working at the time of the shooting.

Defendant then pulled out his gun and shot Jones four times. As defendant was running away, someone started shooting at him. Defendant threw his gun in a lake and went home.

Defendant told the deputy that Jones could have shot him "right there" and he thought Jones was trying to kill him. Defendant denied he was in an Impala vehicle earlier that day, denied he was a gang member, and denied he used the gang name Nemo. He stated he used to "hang around" with Jones and had no bad feelings towards him or towards Black people; he did not know why Jones was mad at him; it was probably a "Hispanic thing"; and Jones probably thought defendant was going to "trip on him." He stated he only had four bullets in his gun; he had the gun for protection because he heard there were shootings in Rubidoux; and he had no intention of killing someone.

Jury Verdict and Sentence

Defendant was charged (1) in count 1 with premeditated special circumstances murder based on a murder by an active gang member to further gang activity, with enhancement allegations that the offense was committed by the personal discharge of a firearm causing death and to benefit the gang, and (2) in count 2 with active participation in gang criminal activity. The jury convicted him as charged. He was sentenced to life without the possibility of parole for the special circumstances murder, and 25 years to life for the firearm discharge enhancement.

DISCUSSION

I. Exclusion of Defense Evidence Supporting Self-defense Claim

Defendant argues the trial court abused its discretion in excluding two evidentiary items proffered to support his claim of self-defense: (1) a hearsay statement by Jones's brother Whitley to the police that he had removed a gun that was lying on the ground next to Jones, and (2) eyewitness Darrow's prior inconsistent statement that she had the impression that Jones instigated the fight and may have shot at defendant.

During trial outside the presence of the jury, Whitley appeared in court and stated that if he were called to testify by the prosecution or the defense concerning the shooting in the alley, he would exercise his constitutional right not to testify under the Fifth Amendment. The court ruled he was unavailable. Thereafter, defense counsel sought to present a statement that Whitley made to a deputy who interviewed Whitley after the shooting. Defense counsel stated that Whitley told the deputy that when he arrived at the scene of the shooting, he found a semiautomatic gun lying on the ground next to Jones; he took the gun and hid it from the authorities; and he would not tell anyone where it was. Defense counsel asserted that Whitley's hearsay statement was admissible as a declaration against penal interest. The court ruled the statement was inadmissible.

Whitley's statement that he removed a gun from the scene was consistent with the evidence presented at trial. Berlanga testified that Jones had a gun; whereas a sheriff's investigator testified no gun was found on or near Jones's body when the authorities arrived.

The discussion concerning the admissibility of Whitley's statement apparently occurred off the record. The record does not reflect the reason the trial court concluded the statement should not be admitted under the declaration against penal interest exception to the hearsay rule.

Relevant to eyewitness Darrow, defense counsel attempted to present her prior inconsistent statement to undermine her testimony on direct examination that Jones was talking to defendant as if they were friends and she did not see Jones with a gun. Darrow made the prior inconsistent statement to the deputy who had interviewed her after the shooting. In his written report, the deputy stated that Darrow told him that "it was her impression that the African-American male instigated the [incident] and may have shot at the Hispanic male[.]" The court excluded the evidence as speculative. Explaining its rationale, the court stated that although statements about what Darrow saw were admissible, statements concerning her "speculation that one or the other started an argument or a fight" were not admissible, and an "impression" calls for speculation.

We review the trial court's evidentiary rulings for abuse of discretion. (People v. Brady (2010) 50 Cal.4th 547, 558.)

Under the declaration against penal interest exception to the hearsay rule, a declarant's out-of-court statement may be admitted for the truth of the matter if the declarant is unavailable as a witness at trial, the statement was against the declarant's penal interest, and the declaration was sufficiently reliable to warrant admission despite its hearsay character. (Evid. Code, § 1230; People v. Cudjo (1993)6 Cal.4th 585, 606-607.) The Attorney General concedes that Whitley was unavailable, and also concedes that it was against Whitley's penal interest to "take the gun, to hide it, and to refuse to disclose its location." (See Pen. Code, § 135 [offense of destroying or concealing evidence].)

However, the Attorney General asserts that the portion of Whitley's statement that he found the gun lying next to Jones was not against Whitley's penal interest, and that this was the portion that was relevant to defendant's self-defense claim. We disagree. Whitley's statement that he took and hid the gun was inculpatory precisely because the gun was located next to a homicide victim — i.e., the gun's location showed that it was potential evidence and thus concealment of the gun could give rise to criminal culpability.

The Attorney General does not argue, nor does the record suggest, that Whitley's statement was unreliable. Whitley's statement that he found and removed the gun did not protect his or his brother's interests. The evidence was relevant to defendant's self-defense claim, indicating that Jones's weapon was on the ground rather than in his waistband, which could support an inference that Jones had drawn his weapon at the time he was shot. We conclude the trial court abused its discretion in excluding Whitley's statement.

The Attorney General argues Whitley's statement was excludable on Crawford grounds because it was a testimonial statement concerning a crime made by an unavailable witness who had not been subjected to cross-examination. We reject this assertion because Crawford concerns the accused's constitutional right to confront adverse witnesses (Crawford v. Washington (2004) 541 U.S. 36, 42), not the prosecution's right.

We reach the same conclusion regarding Darrow's prior inconsistent statement concerning Jones's aggression. Lay opinion about a person's behavior is admissible if it is rationally based on the witness's perception and helpful to a clear understanding of the witness's testimony. (Evid. Code, § 800; see, e.g., People v. Farnam (2002) 28 Cal.4th 107, 153 [testimony that defendant stood " 'in a posture like he was going to start fighting' "]; People v. Moreno (1973) 32 Cal.App.3d Supp. 1, 5, 7-8 [testimony that defendant provoked the incident]; People v. Harris (1969) 270 Cal.App.2d 863, 872 [testimony that it looked as if defendant was trying to break up fight].) Although the proffered evidence indicated Darrow told the deputy it was her "impression" Jones instigated the fight and may have shot at defendant, defense counsel was entitled to elicit testimony about whether she made the statement, and, if so, to inquire about the observations that gave rise to this impression. Because aggression can be displayed by overt behavior, Darrow's impression that Jones instigated the fight and may have shot could well have been based on something she saw or heard rather than on mere speculation. (Contrast People v. Thornton (2007) 41 Cal.4th 391, 429 [trial court could reasonably rule that asking whether two vehicle occupants were acting as if they knew each other called for speculation].) The trial court abused its discretion in precluding defense counsel from pursuing this line of inquiry to support the self-defense theory.

However, the exclusion of these evidentiary items was harmless even if we apply the more stringent harmless-beyond-a-reasonable-doubt standard for federal constitutional error. (See People v. Pollock (2004) 32 Cal.4th 1153, 1173 [harmless-beyond-a-reasonable-doubt standard applies if evidentiary ruling deprives defendant of "meaningful opportunity to present a defense"]; People v. Boyette (2002)29 Cal.4th 381, 428-429.) An error is harmless beyond a reasonable doubt if there is no reasonable possibility the error contributed to the jury's guilty verdict; i.e., if the error was unimportant in relation to everything else the jury considered on the issue in question. (People v. Saavedra (2007) 156 Cal.App.4th 561, 569.) Here, there is no reasonable possibility the jury would have credited defendant's self-defense claim even if it had heard the testimony that Whitley found a gun next to Jones's body and that Darrow perceived Jones as the instigator and possible first shooter. Assuming arguendo the jury might have concluded from this evidence that Jones used his gun aggressively just before defendant shot him, the record contains overwhelming evidence that defendant did not act in legitimate self-defense, whether perfect or imperfect.

As the jury was instructed, self-defense is not available to a defendant who contrives the need to use force to defend him or herself. Under the doctrine of contrived self-defense, "[s]elf-defense is not available as a plea to a defendant who has sought a quarrel with the design to force a deadly issue and thus, through his fraud, contrivance, or fault, to create a real or apparent necessity for killing." (People v. Hecker (1895)109 Cal. 451, 462.) As stated in Fraguglia v. Sala (1936) 17 Cal.App.2d 738, 743: " 'The law does not permit any person to voluntarily seek or invite a combat, or to put himself in the way of being assaulted, with the purpose that he may have a pretext to injure his assailant. The right of self-defense does not imply the right of attack, and it will not avail in any case where the difficulty is set off and induced by the party, by any wilful act of his, or where he voluntarily and of his own free will enters into it. The necessity being of his own creation, will not operate to excuse him.' "

Regarding the contrived self-defense principle, the jury was instructed: "The right of self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense." (See CALJIC No. 5.55.)

The circumstances of this case create a compelling inference of contrived self-defense. Jones's girlfriend (Richards), who recognized defendant as he rode by in the Impala, testified that defendant and Jones were mad dogging each other. Although defendant denied he rode by in the Impala, his appearance at the stereo shop shortly after the claimed mad dogging incident, armed with a gun and wearing a sweatshirt with a hood covering most of his face in extremely hot summer weather, strongly supports the veracity of Richards's testimony and undermines defendant's claim that he was merely walking to the grocery store. The prosecution's gang expert explained that mad dogging is a challenge that requires a response from a gang member. The evidence showed that defendant was a Riva gang member; there was an ongoing "war" between defendant's gang and Jones's gang; defendant voluntarily returned to the stereo shop shortly after engaging in mad dogging with Jones; and defendant was carrying a gun and had largely concealed his face. These circumstances give rise to an overwhelming inference that defendant came prepared to engage in a violent gang-related confrontation with Jones. Even if the jury had concluded from the excluded evidence that Jones behaved aggressively with his gun just before defendant fired at Jones, we are satisfied beyond a reasonable doubt the jury would have construed the circumstances as showing contrived self-defense that precludes reliance on self-defense. There is no reasonable possibility the exclusion of the evidence contributed to the jury's guilty verdict.

II. Prosecutor's Closing Argument Reference to

Defendant's Uncharged Gang Activity

Defendant asserts that in closing argument the prosecutor referred to evidence of his uncharged gang activity to improperly suggest he had a propensity to commit crimes, and the trial court erred in overruling his objection to this argument. (See People v. Kipp (1998) 18 Cal.4th 349, 369 [evidence of defendant's misconduct not charged in current case inadmissible to show defendant's bad character or criminal propensity].)

The complained-of closing argument occurred in the following context. The prosecutor argued that prior to the shooting, defendant, a "foot soldier" who wanted to "earn his stripes" in the Riva gang, rode by in the Impala with a shot caller for the gang and spotted Jones alone without other Project Crips gang members. The prosecutor asserted it was "the perfect opportunity" for defendant to murder Jones. The prosecutor then referred to defendant's prior gang activity, arguing: "[T]he reason... you know about what the defendant is doing before this is because you have an idea of what's leading up to this. This isn't just some random spur of the moment killing in self-defense. The defendant through that summer had been showing that he was willing to carjack someone at gunpoint in the company of [another Riva gang member]. That's why that testimony was read to you. These are some of the things the defendant was doing leading up to this. [¶] It's only logical that his next big move is going to be when it presents itself on August 17th to shoot and kill a West Side Project Crips, a well respected — [¶]... [¶]... So when he killed Dijuan Jones on August 17th, these are the things, and these are the pieces of evidence... leading up to what happens on August 17th." Defense counsel objected that the prosecutor was misstating the limited purpose for which the evidence was admitted, and the trial court overruled the objection.

The trial court did not err. The jury was given a limiting instructing stating it could not consider the gang evidence to prove defendant had a bad character or criminal disposition, but it could consider it to determine motive for the charged crime and whether the charged crime was committed for the benefit of the gang. The prosecutor's argument properly referred to the gang evidence to support motive and intent to benefit the gang. The prosecutor pointed to the evidence indicating that several weeks before the shooting, defendant had committed a carjacking with another Riva gang member, and urged the jury to infer that he wanted to improve his status in the gang by committing a shooting. This argument was relevant to support that he had a motive to shoot Jones and that he was acting for the benefit of the gang rather than legitimately defending himself from Jones's aggression. The argument did not encourage the jury to convict defendant because his uncharged gang activity showed he had a propensity to commit crimes, but instead urged the jury to convict because his prior gang activity supported his gang-related motive and intent.

Defendant argues the prior carjacking was not relevant to show motive because the carjacking victim was apparently not a rival gang member. We are not persuaded. The fact that defendant committed the carjacking with another Riva gang member can reasonably support an inference that he was acting to benefit the gang when committing the carjacking, regardless of whether the carjacking victim was a Riva gang member. The prosecutor could properly argue that defendant's commission of the carjacking on behalf of the Riva gang supported a reasonable inference that he had a motive and intent to continue improving his status within the gang by committing more serious crimes for the gang, including the shooting of a rival gang member.

The brothers of the carjacking victim (Daniel Martinez) were Riva gang members. Martinez testified that defendant and another Riva gang member pointed a gun at his head and took his truck, and later that night he found his truck parked in front of his residence.

The prosecutor's argument was not improper, and the trial court did not err in overruling defense counsel's objection to the argument.

III. Contention of Ineffective Representation Based on

Failure to File Suppression Motion

Defendant argues the trial court erred in denying his new trial motion based on ineffective representation. After his conviction, defendant retained new counsel to represent him at his new trial motion. In his new trial motion, defendant contended his trial counsel provided ineffective representation by failing to move to suppress his statements to the police admitting he was the shooter based on his invocation of his rights to remain silent and to an attorney. In support, defendant submitted a video and transcript of the police interview, which included statements that he wanted to "plead the Fifth, " he did not want to talk anymore, and he would get a lawyer.

At the hearing on the new trial motion, defendant's trial counsel (Michael Duncan), who had been practicing criminal law since 1985, stated that he believed there were grounds to suppress the police interview with defendant. However, he explained he did not file a suppression motion because he had decided not to raise an identity defense but instead to use defendant's statements in the interview to support a perfect or imperfect self-defense claim.

Duncan testified that he did not view an identity defense as viable because the prosecution had two witnesses placing defendant at or near the scene of the shooting and other evidence supporting defendant's identity as the shooter. Duncan cited the prosecution's evidence that included a statement from the victim's brother (Whitley) who recognized defendant as he was chasing him away from the scene; a statement from the victim's girlfriend (Richards) that defendant was in the Impala immediately prior to the shooting; ammunition at defendant's home that could be traced to the same production run as the expended cartridges found at the scene; discarded clothing at defendant's home that matched the clothing worn by the shooter; and defendant's attempt to fabricate an alibi when he did not realize the arresting officer spoke Spanish. Duncan selected a self-defense theory as his trial strategy, noting that Berlanga's statement that the victim had retrieved and cocked a gun was consistent with defendant's description of the incident to the police, and none of the witnesses saw how the shooting actually started. Duncan concluded the statements defendant made to the police describing how the incident occurred and that he acted in self-defense were "more helpful than not" to the defense case.

Having selected his trial strategy, in opening statements to the jury Duncan did not dispute that defendant was the shooter, but argued that defendant fired in self-defense. During trial, Whitley asserted his privilege not to incriminate himself and did not testify.

The trial court denied the new trial motion, finding the prosecution had a "good solid" case against defendant even without his statement during the police interview admitting he was the shooter, and his trial counsel's strategic choice to present a self-defense claim was a "sound, practical decision."

To show ineffective representation the defendant must establish that counsel's performance fell below an objective standard of reasonableness, and that there is a reasonable probability that absent counsel's deficiency the result would have been different. (People v. Weaver (2001) 26 Cal.4th 876, 925.) We indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. (Ibid.) We evaluate counsel's decision based on what counsel knew or should have known at the time, without second-guessing reasonable tactical decisions in the harsh light of hindsight. (Id. at p. 926; In re Thomas (2006) 37 Cal.4th 1249, 1257.) The courts recognize that " ' "[t]here are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." ' " (People v. Wrest (1992) 3 Cal.4th 1088, 1115.) Even debatable trial tactics do not constitute ineffective representation. (People v. Weaver, supra, 26 Cal.4th at p. 928.) If the record shows counsel's decisions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed. (People v. Diaz (1992) 3 Cal.4th 495, 557.)

Assuming arguendo defense counsel would have prevailed in a motion to suppress the police interview, defendant has not shown that his trial counsel was ineffective for failing to seek exclusion of the interview. At the new trial hearing, defense counsel cited the various evidentiary items that he considered when deciding his trial strategy, including identity evidence derived from Whitley's observations when he chased the shooter in the alley, Richards's statement that shortly before the shooting defendant had been in the alley mad dogging with the victim, and other circumstantial evidence. There is no indication that during pretrial proceedings it was anticipated that Whitley would refuse to testify. Defense counsel could reasonably assess that the prosecution had sufficient evidence to convince a jury that defendant was the shooter, and that an identity defense would not be stronger than a self-defense claim. With respect to a self-defense theory, defense counsel considered that defendant's self-defense claim during the police interview was consistent with the prosecution's eyewitness statement that the victim had cocked and displayed a gun. The record shows that defense counsel had a reasoned basis for selecting a self-defense theory over a mistaken identity theory, and the record does not show that no competent attorney would have made this choice. Defendant has not established that defense counsel's strategic decision was constitutionally unreasonable.

As we stated earlier when examining the issue of prejudice from the erroneous exclusion of defense evidence, the evidence of contrived self-defense was compelling given the facts showing defendant arrived at the scene prepared to engage in a gang-related violent confrontation. Nevertheless, at the pretrial stage of the proceedings, defense counsel could reasonably select the self-defense theory over the identity defense, and we do not second-guess this tactical decision in the harsh light of hindsight.

For the first time on appeal, defendant argues his trial counsel should have moved to suppress the interview because he would have been in a stronger position to negotiate a favorable plea agreement if defendant's admission that he was the shooter was excluded, and if plea negotiations were unsuccessful his counsel still could have presented the police interview to support a self-defense theory by waiving the violation of his rights. This contention is too speculative to show ineffective representation. (See People v. Karis (1988) 46 Cal.3d 612, 656 [defendant must show ineffective representation as a " 'demonstrable reality and not a speculative matter' "].) There is nothing in the record reflecting the nature of the plea negotiations, if any, undertaken by the parties. Contrary to defendant's suggestion, the record here is not comparable to cases where an ineffective representation claim was presented based on a developed record showing counsel's acts or omissions during plea negotiations. (See, e.g., Premo v. Moore (2011) 562 U.S. ___ [131 S.Ct. 733, 738-743] [incompetency claim based on failure to seek suppression of confession before advising defendant regarding plea offer]; In re Alvernaz (1992) 2 Cal.4th 924, 930-931, 934-937 [incompetency claim based on counsel's inaccurate advice causing defendant to reject plea offer]; People v. Brown (1986) 177 Cal.App.3d 537, 541-542, 548-550, 556 [incompetency claim based on counsel's failure to correct error in preplea report ordered to assist with plea negotiations].) The record before us provides no information about plea negotiations. On a silent record, we cannot speculate that a reasonably competent attorney in Duncan's position would have filed a suppression motion to advance defendant's position in plea negotiations.

In its recent decision in Premo v. Moore, the United States Supreme Court (which found no ineffective representation) cautioned that when reviewing attorney choices during the plea bargain stage, it is essential that courts strictly adhere to the standard affording wide latitude in reasonable attorney performance. The high court explained that "[t]he art of negotiation is at least as nuanced as the art of trial advocacy.... An attorney often has insights borne of past dealings with the same prosecutor or court, and the record at the pretrial stage is never as fully developed as it is after a trial.... [C]ourts must respect their limited role in determining whether there was manifest deficiency in light of information then available to counsel." (Moore, supra, 131 S.Ct. at p. 741.) In its analysis, the Moore court noted that a suppression motion would delay the proceedings, as time passes the prosecution's case can get weaker or stronger, and defense counsel's decision to forego a challenge to the confession may have been essential to securing the plea agreement. (Id. at pp. 741-744.) The high court's observations underscore that an attempt to evaluate counsel's performance during plea negotiations on a silent record would be unduly speculative and improper.

Nor is this a case where defense counsel's failure to seek suppression permitted the prosecution to gain an advantage at trial without a strategic benefit to the defendant. (See, e.g., In re Wilson (1992) 3 Cal.4th 945, 955-956 [ineffective representation claim supported by showing that counsel's failure to seek exclusion of adverse evidence arose from misunderstanding of law rather than informed tactical decision].) Rather, the introduction of the police interview supported defendant's self-defense theory. Because the record shows defense counsel had a reasoned basis for selecting a self-defense rather than identity theory, defendant has not shown ineffective representation arising from counsel's decision to forego a motion to suppress the interview. (See People v. Jenkins (1975) 13 Cal.3d 749, 753-755 [ineffective representation claim fails absent showing that counsel had no tactical reason for failing to file suppression motion].) The trial court did not err in denying defendant's new trial motion.

IV. Custody Credits

The Attorney General agrees with defendant that he should have been given 1490, rather than 1489, days of custody credit. We modify the judgment accordingly.

DISPOSITION

The judgment is modified to provide defendant 1490 days custody credit. As so modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect the increase in custody credits and to forward an amended abstract of judgment to the Department of Corrections and Rehabilitation.

WE CONCUR: McCONNELL, P. J., McINTYRE, J.


Summaries of

People v. Soto

California Court of Appeals, Fourth District, First Division
Feb 24, 2011
No. D056814 (Cal. Ct. App. Feb. 24, 2011)
Case details for

People v. Soto

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MARIO IVAN SOTO, Defendant and…

Court:California Court of Appeals, Fourth District, First Division

Date published: Feb 24, 2011

Citations

No. D056814 (Cal. Ct. App. Feb. 24, 2011)