Opinion
C097475
04-25-2024
THE PEOPLE, Plaintiff and Respondent, v. DION JERMAINE VACCARO, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. S16CRF0048
DUARTE, J.
This is a homicide case arising out of a drug deal gone bad at a motel in South Lake Tahoe. A jury found defendant Dion Jermaine Vaccaro guilty of murder (Pen. Code, §§ 187, subd. (a), 189), two counts of second degree robbery (§ 211), and attempting to dissuade a witness from attending or giving testimony at a trial, proceeding, or inquiry authorized by law (§ 136.1, subd. (a)(2)). The jury also found true the firearm enhancement allegations (§ 12022.53, subds. (b)-(d)) and the special circumstance allegation that the murder was committed during the commission of a robbery (§ 190.2, subd. (a)(17)). After denying defendant's motion for new trial, the trial court sentenced defendant to life in prison without the possibility of parole (LWOP), plus 30 years to life in prison.
Undesignated statutory references are to the Penal Code.
Defendant timely appealed; after numerous extensions of time for record preparation and both parties' briefing, the case was fully briefed on January 8, 2024, and assigned to the panel on January 31, 2024.
Defendant argues the trial court prejudicially erred in allowing an accomplice, who had pleaded guilty to first degree murder and agreed to testify on behalf of the People in exchange for a reduced charge and stipulated sentence, to assert his Fifth Amendment privilege against self-incrimination in front of the jury. Defendant adds that trial counsel was ineffective, the trial court erred in denying his motion for new trial, and reversal is required due to the cumulative errors of his trial counsel. He ends with claims of sentencing error. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
This case involves numerous individuals connected with the failed drug deal and related events including a robbery that resulted in the death of the seller. We do not attempt to recite the underlying facts in detail, but instead summarize the facts pertinent to the contentions raised on appeal. Additional background information is set forth in the Discussion section where necessary to resolve these claims.
The Setting and the Drug Deal
The Beverly Lodge is a motel in South Lake Tahoe. In 2016, there was a convenience store located across the street called Ski Run Liquor. The victims, Dennis Wright and Kyndra Ghiorso, were a couple who grew and sold marijuana. Among the people to whom they sold marijuana were Tug Keller and Tevarez Lopez.
In January 2016, Keller asked Lopez to help him obtain 200 pounds of marijuana for another individual; however, only 100 pounds were available. Keller and Lopez each expected to receive $10,000 in cash ($100 per pound) for brokering the deal. However, after a dispute arose, they agreed to accept only $2,500 ($25 per pound). Wright agreed to supply the marijuana, and the buyer and other interested parties agreed to meet at the Beverly Lodge to complete the deal.
After Keller booked a room at the Beverly Lodge, Lopez indicated that he would not attend the exchange of cash for marijuana due to a "family issue." However, Lopez assured Keller that Wright would be there. According to Keller, he and Lopez had engaged in similar transactions in the past and this was the first time Lopez had failed to attend.
At trial, Keller explained that, for his role in the drug deal giving rise to this case, he pleaded guilty to three charges. Keller further explained that, according to his plea agreement, if he fully cooperated with the prosecution (including testifying truthfully), he would be allowed to withdraw his guilty pleas to two of the charges and be placed on probation for a term of three years.
The Robbery and Shooting
On the evening of January 30, 2016, six people, including Wright, Keller, and the buyer, met inside a room at the Beverly Lodge to complete the drug deal. However, because the buyer was not satisfied with the marijuana, the deal was cancelled. Thereafter, as Wright and his girlfriend (Ghiorso) were standing near Wright's truck preparing to leave the area, they were approached by two "mixed race" or Black men wearing hooded sweatshirts with the hood covering their heads. The taller man had a "thinner build," was unarmed, and did not say anything. The shorter, "stockier" man, later identified as defendant, was carrying a small handgun and had long hair pulled back in a ponytail. Defendant pointed his gun in the direction of Wright and yelled, "Give me the fucking money" and/or "Where's the money," and Wright indicated the money was in Ghiorso's purse. Thereafter, an altercation occurred; defendant "struggle[ed]" and fought with Wright, Ghiorso was hit in the head with a gun, her purse was taken by one of the robbers, and multiple gunshots were fired.
Still images and video from the surveillance footage captured by Ski Run Liquor on the night of the shooting was shown to the jury and admitted into evidence. In addition, Department of Motor Vehicle records for defendant and the other alleged perpetrator (including photographs) were shown to the jury and admitted into evidence. Those records reflect that defendant was the shorter and heavier of the two men.
Two bullets struck Wright; one struck his chest and the other his right leg. According to Ghiorso, the man who demanded the money (i.e., defendant) was the same person who took her purse and was near Wright when she heard a gunshot. An eyewitness (one of the individuals who helped broker the drug deal) identified the robber with long hair (i.e., defendant) as the person who demanded the money and shot Wright at "point blank" range while Wright had his hands up and was saying, "Don't shoot me."Another eyewitness (an accomplice of the robbery) identified defendant as the person who shot Wright two times, with the first shot fired when defendant was about three feet from Wright and the second shot fired when defendant was around 10 feet away from Wright. During the altercation, Ghiorso also fired several gunshots from a .32 caliber handgun. At trial, Ghiorso could not recall whether she fired first, or whether she fired before she was hit in the head. However, there was other evidence that Ghiorso fired her gun at some point after defendant shot Wright.
As part of a plea agreement, this individual (Lucas Collins) agreed to testify on behalf of the prosecution. At trial, Collins described the perpetrators as having "dark faces." Upon questioning, he explained that the perpetrator with the gun had "long black dreadlocks" down to his waist and a "darker face," and that the other perpetrator had similar facial features but no dreadlocks. However, when Keller testified, he said that the taller, thinner perpetrator had longer hair that might have been "braided." Prior to trial, Ghiorso told a detective that the perpetrators were two Black males, although she also indicated that defendant was "mixed race," either "Mexican and White or Black and White." Though not introduced at trial, there is evidence in the record that defendant is African-American and Italian.
Following the shooting, the two robbers fled the scene in a car.
Relevant Post-Shooting Events
Keller called 911. When the first police officer arrived at the scene around 7:43 p.m., Wright was unresponsive. He was taken to the hospital and later died as a result of the gunshot wounds. The forensic pathologist who performed Wright's autopsy determined that he was shot in the chest from within three feet, as there was stippling (partially burnt gunpowder) around the entrance of his chest wound. There was no stippling around the entrance of the other gunshot wound, which indicated the bullet that struck his leg was fired from a distance of greater than three feet.
Around 3:00 a.m., approximately seven hours after the shooting, defendant and a friend arrived by taxi at Tamara Norris's house in Vallejo. Although not related, Norris considered defendant to be a part of her family; she had dated his uncle and there were times when he had stayed at her house. Upon his arrival, defendant told Norris that he was in "trouble," and that he needed her to do him a "huge, huge, huge favor" by driving his friend home. Norris did so.
The next day, defendant called an ex-girlfriend, Kendalynn Sanchez. During this conversation, defendant was "dramatic" and wanted to "see [Sanchez] right then and there" about a "very important . . . matter of life or death." When they met up later that same day, defendant told Sanchez that he had killed someone and asked to borrow her car. Defendant explained that he was concerned that "people" on "the streets" were going to ask Sanchez questions about the killing and instructed her not to say anything about it. When Sanchez subsequently told Norris that defendant had admitted to killing someone, Norris directed Sanchez to a news story about a homicide in Lake Tahoe on January 30, 2016. In response, Sanchez thought, "holy shit, things are adding up now because . . . I haven't heard from him since then."
At some point in February 2016, defendant and his then-girlfriend, Vanessa Muzio, left northern California to start a new life together because he had "got into some shit" and needed to "leave." The couple drove from Fairfield to Los Angeles and then, eventually, to Texas. During the drive, defendant told Muzio that "things went south" in a "drug deal gone bad" in Lake Tahoe. He explained that a man had been shot and killed, and that the police were looking for him in connection with the shooting. He further explained that the girlfriend of the deceased man had been "pistol whipped," and that multiple people, including himself, had fired gunshots. Defendant indicated that someone else fired first, that someone else "started shooting" after he fired his gun, and that he "got rid" of his gun after the incident. Shortly after leaving northern California, defendant instructed Muzio to stop using her cell phone to avoid being "tracked."
At trial, there was testimony from Muzio that, at the time of the shooting, defendant had long hair that he pulled back into a ponytail. Muzio explained that defendant's hair went down to the "middle of his back."
Norris, Sanchez, and Muzio were called to testify by the prosecution and professed to have no memory of the relevant events and topics of discussion during the relevant conversations with defendant and others about defendant's actions and statements. After they testified, the trial court found that they were all biased in favor of defendant, explaining that their lack of recollection about the information they previously provided at the preliminary hearing and/or to investigators was "feigned as opposed to innocent lack of recollection." Thereafter, Sanchez's and Norris's trial testimony was impeached through the testimony of the investigators who interviewed them prior to trial, and Muzio's trial testimony was impeached by her preliminary hearing testimony.
Investigation
The police found five expended cartridge casings at the scene: three .32 caliber casings and two 10-millimeter casings. The police also found three spent .32 caliber bullets. Inside Wright's truck, there were three duffel bags collectively containing 104 pounds of marijuana. A semiautomatic .32 caliber handgun was found in the bed of Wright's truck. The gun had one round in the chamber and one round in the magazine. The rounds were consistent with the three .32 caliber casings found at the scene.
The parties stipulated that the .32 caliber casings and bullets found at the scene were fired from the gun located in the back of Wright's truck, and that no fingerprints could be analyzed on the casings, gun, or live rounds. The parties further stipulated that the two 10-millimeter casings found at the scene bore D.T. 10 millimeter auto head stamps and nickel-colored primers, and that these casings were consistent with the 10-millimeter cartridge found in the parking lot of the Heavenly Valley Lodge, a hotel located in South Lake Tahoe. At trial, there was evidence that an individual involved in the robbery (Harvest Davidson) rented a room at the Heavenly Valley Lodge shortly after 8:00 p.m. on the day of the robbery, and that defendant and others involved in the robbery drove to that hotel after the shooting in cars matching the description of the cars involved in the robbery, a silver Chrysler Concorde and a black BMW. There was also evidence that nobody slept in the hotel room that night, the black BMW belonged to defendant, the silver Chrysler belonged to a woman who lived in Vallejo, and the individuals involved in the robbery borrowed the Chrysler.
Davidson and Lopez were friends. A day or two before the shooting, they and others (e.g., Wright, Ghiorso) packaged the marijuana involved in this case at Keller's house.
On the same night as the shooting, Keller told a detective that he suspected Lopez had set up the robbery. Shortly thereafter, the police obtained video surveillance footage from the Ski Run Liquor store. When investigators subsequently interviewed Norris, she was shown a still image from the surveillance footage and said that she recognized defendant. Upon further questioning, Norris identified the man in the middle of the image (Andrew Adams) as the same man defendant asked her to drive home the early morning of January 31, 2016.
Based on information from an eyewitness, a detective obtained the license plate of a Chrysler Concorde he suspected the perpetrators had used to flee the scene. After speaking with the owner of the car, a man named Tristan Batten was interviewed. During his police interview, Batten explained that defendant's cousin, Domenic Randolph, was his roommate, and that Randolph and defendant were the robbers. Batten indicated that he observed the entire incident, including the shooting, and identified defendant as the shooter. At trial, a detective testified that Batten had lied at least a dozen times during his police interview, including initially claiming that he did not see the shooting.
Cell Phone Evidence
An analysis of cell phone records and the data downloaded from Lopez's phone revealed that there were 19 text messages exchanged between Lopez's phone and defendant's phone between January 29 and February 2, 2016. Although most of these messages had been deleted and were not recoverable, the last text message sent from Lopez's phone to defendant's phone was recovered. That message, which was sent at 4:35 p.m. on the day of the shooting, read: "Fam it's locked in y'all gon see when u get there blood knows the wip n the cats in theyll b there so get that good issue." At trial, a detective explained that "blood" is a slang term for friend, "wip" is a slang term for a vehicle, "cats" are a slang term for people, and "good issue" is a slang term for an item such as money or drugs. The detective further explained that the phrase "Fam it's locked in" meant "People, it's set up."
In addition to the text messages, the cell phone records revealed that there were numerous phone calls placed from Lopez's cell phone to defendant's cell phone between January 27 and January 31, 2016, including 19 calls on January 29, 15 calls on January 30, and two calls on January 31. The last phone call was placed at 9:37 a.m. on January 31, 2016.The cell phone records also disclosed that Lopez's cell phone placed numerous calls and sent multiple texts messages to Wright's cell phone and Keller's cell phone between January 29 and January 30, 2016.
Jail Phone Calls
Three days before the preliminary hearing, Norris received two phone calls from the county jail. The first phone call was placed by a man named Spencer. During that call, Spencer explained that he was calling on behalf of defendant and that defendant wanted her to know she had "the right to plead the 5th" and not testify. Thereafter, Spencer told Norris that she did not "have to say anything" and instructed her to "just be quiet." In the second call, which was placed later that same day, defendant told Norris: "You know what the dude told you earlier that would be . . . the best thing if you could that." Later in the call, defendant made a similar request. When asked at trial, Norris indicated that the "nature" of this call was "[p]robably reiterating . . . pleading the Fifth."
These jail phone calls provided the factual basis for defendant's dissuading a witness conviction. (§ 136.1, subd. (a)(2).)
Batten's Preliminary Hearing Testimony
When Batten testified at the preliminary hearing, he identified defendant as the shooter and explained their respective roles in the robbery. At trial, this testimony was read to the jury after Batten invoked his Fifth Amendment privilege against selfincrimination and refused to testify. During his preliminary hearing testimony, Batten explained that defendant called him on the day of the shooting and asked for his help to "pick up some weed" in South Lake Tahoe, and that he and the others involved in the robbery went to the Ski Run Liquor store upon their arrival in South Lake Tahoe. Batten further explained that, although defendant did not say as much, he suspected that there would be a theft or robbery, that he would be the getaway driver, and that defendant would "take care" of him by giving him "weed or money" in exchange for his assistance. When Batten was shown still images captured by the surveillance footage from the Ski Run Liquor store on the night of the shooting, he identified defendant, Randolph, and Adams. Upon further questioning, Batten explained that, at the time of the robbery and shooting, he and Adams were inside a parked Chrysler at the Beverly Lodge. Batten also noted that he had seen defendant with the gun used in the shooting a couple days prior to the shooting, and that defendant had "pretty distinctive hair" at the time of the shooting.
DISCUSSION
The People's theory as to the murder and robbery charges was that Lopez conspired with others, including defendant, to rob the individuals involved in the drug deal, and that the dealer (Wright) was shot and killed by defendant during the commission of the robbery. The defense theory was mistaken identity; defendant was not involved in the robbery or shooting. On appeal, defendant raises a number of claims, which we address in turn below. As we will explain, no basis for reversal appears.
I
Privilege Against Self-Incrimination
Defendant initially argues the trial court prejudicially erred in allowing Batten to assert his Fifth Amendment privilege against self-incrimination in front of the jury in violation of the Evidence Code and his constitutional right to confrontation under the Sixth Amendment. Anticipating that he may have forfeited this claim by failing to object, defendant alternatively contends he received ineffective assistance of counsel.
A. Additional Background
Prior to defendant's trial, Batten entered into a plea agreement with the prosecution. In accordance with the terms of the agreement, Batten pleaded guilty to first degree murder and two counts of robbery. In exchange for his testimony at defendant's trial, the People agreed to reduce Batten's murder charge to voluntary manslaughter and to stipulate to a nine-year prison sentence. However, as noted ante, after testifying at the preliminary hearing, Batten decided not to testify at trial. During a hearing outside the presence of the jury, Batten acknowledged that he understood the terms of his plea agreement and the ramifications of refusing to honor the agreement, including a potential sentence of 25 years to life in prison for the murder conviction. Nonetheless, Batten said that he would not testify, citing "[p]ersonal reasons." When the trial court indicated that it was inclined to have Batten invoke his Fifth Amendment privilege against selfincrimination in front of the jury, defense counsel questioned the propriety of this procedure but did not lodge an objection. In response, the prosecutor stated: "I've done it this way. He's going to invoke, and I promised the jury that he was going to testify, so I have to show them I'm bringing him up." Defense counsel replied: "Matter of procedure. That's all. Thank you."
After the jury returned to the courtroom, the prosecutor asked Batten three questions: (1) his whereabouts on the night of the shooting; (2) whether he knew defendant's name; and (3) whether he saw defendant in the courtroom. Batten responded by "plead[ing] the Fifth" to each question. Upon further questioning, Batten indicated that he intended to "plead the Fifth regarding everything surrounding the circumstances of this case," and that he would assert his right to remain silent in response to any question the prosecutor asked. Thereafter, the prosecutor asked Batten several questions about his plea agreement. During this exchange, Batten acknowledged that he was a cooperating witness and had entered into a plea agreement with the People, under which he would plead guilty to first-degree murder for his role in the death of Wright and agree to testify on behalf of the prosecution at defendant's trial. Batten explained that he initially intended to honor the agreement but later changed his mind and decided not to testify. After Batten was excused, the jury was advised that he was "legally unavailable as a witness" due to his "invocation of his Fifth Amendment rights," and his preliminary hearing testimony was read into the record.
At the time Batten invoked his privilege against self-incrimination, he had not yet been sentenced.
B. Applicable Legal Principles
The confrontation clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." (U.S. Const., 6th Amend.) This constitutional right "includes the right to cross-examine adverse witnesses on matters reflecting on their credibility." (People v. Quartermain (1997) 16 Cal.4th 600, 623.)
At the same time, "[i]t is a fundamental principle of our law that witnesses may not be compelled to incriminate themselves, and the scope of a witness's privilege [against self-incrimination] is liberally construed. [Citations.] 'To invoke the privilege, a witness need not be guilty of any offense; rather, the privilege is properly invoked whenever the witness's answers "would furnish a link in the chain of evidence needed to prosecute" the witness for a criminal offense.'" (People v. Williams (2008) 43 Cal.4th 584, 613-614 (Williams) [" 'A witness may assert the privilege who has "reasonable cause to apprehend danger from a direct answer" '" (id. at p. 614)].)
"A nonparty witness may elect to waive his or her privilege against selfincrimination." (Williams, supra, 43 Cal.4th at p. 615.) "[A] witness's failure to invoke the privilege against self-incrimination during one hearing within a proceeding does not necessarily constitute a waiver for the purpose of subsequent hearings. Thus the failure of a witness to claim the privilege at a preliminary hearing does not prevent the witness from refusing to testify regarding the same incriminating material at the trial." (Ibid.) The privilege against self-incrimination generally survives a guilty plea and persists at least until sentencing. (People v. Fonseca (1995) 36 Cal.App.4th 631, 635 ["it is clear in California that one retains the privilege [against self-incrimination] at least until he has been sentenced and, if he appeals, pending resolution of the appeal"].)
"Although defendants have the general right to confront the witnesses against them, this right is not absolute and properly gives way when a witness is entitled to the protection of the Fifth Amendment privilege against self-incrimination and the defendant had an appropriate prior opportunity to cross-examine the witness. [Citations.] 'The defendant "must not only have had the opportunity to cross-examine the witness at the previous hearing, he must also have had 'an interest and motive similar to that which he has at the [subsequent] hearing.'" '" (Williams, supra, 43 Cal.4th at pp. 618-619.) "Significantly, '[a] witness who successfully asserts the privilege against selfincrimination is unavailable to testify for these purposes.'" (Id. at p. 619.)
Once the privilege against self-incrimination has been established, neither the trial court nor counsel may comment on the fact that a party or witness has exercised the privilege. (Evid. Code, § 913, subd. (a).) Furthermore, "[t]he jury may not draw any inference from a witness's invocation of a privilege. [Citations.] Upon request, the trial court must so instruct jurors." (People v. Doolin (2009) 45 Cal.4th 390, 441-442; see Evid. Code, § 913, subds. (a), (b).)
Evidence Code section 913, subdivision (a) provides: "If in the instant proceeding or on a prior occasion a privilege is or was exercised not to testify with respect to any matter, or to refuse to disclose or to prevent another from disclosing any matter, neither the presiding officer nor counsel may comment thereon, no presumption shall arise because of the exercise of the privilege, and the trier of fact may not draw any inference therefrom as to the credibility of the witness or as to any matter at issue in the proceeding." Evidence Code section 913, subdivision (b) provides: "The court, at the request of a party who may be adversely affected because an unfavorable inference may be drawn by the jury because a privilege has been exercised, shall instruct the jury that no presumption arises because of the exercise of the privilege and that the jury may not draw any inference therefrom as to the credibility of the witness or as to any matter at issue in the proceeding."
Allowing a witness to be called to the stand merely to have the witness invoke the privilege against self-incrimination before the jury serves no legitimate purpose and may cause the jury to draw an improper inference regarding the witness's guilt or complicity in the charged offense. (People v. Smith (2007) 40 Cal.4th 483, 516-517; see People v. Mincey (1992) 2 Cal.4th 408, 440-442 [holding that allowing a woman who had also been charged with the murder for which defendant was on trial to invoke the privilege before the jury would invite the jury to improperly speculate that she, not defendant, was the murderer].) Our Supreme Court has noted that it is a better practice for a trial court to require the exercise of the privilege outside the jury's presence, which avoids any prejudicial impact. (Smith, at p. 517.) However, our Supreme Court has "stopped short of declaring it error for trial courts to fail to adhere to this practice." (Ibid.)
C. Analysis
Here, by failing to object in the trial court, defendant has forfeited his claim that the court erred in allowing Batten to invoke his privilege against self-incrimination in front of the jury. (Smith, supra, 40 Cal.4th at p. 517 [defense counsel's failure to object forfeited claim that the trial court should not have forced a witness to assert his right against self-incrimination in front of the jury].) We proceed to defendant's alternative contention that he received ineffective assistance of counsel.
A criminal defendant is constitutionally entitled to the assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466 U.S. 668, 684-685; People v. Doolin, supra, 45 Cal.4th at p. 417.) "The standard for showing ineffective assistance of counsel is well settled. '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.'" (People v. Gray (2005) 37 Cal.4th 168, 206207; see also People v. Mai (2013) 57 Cal.4th 986, 1009.) "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." (Strickland, at p. 697.) It is not enough to establish prejudice for defendant to propose that counsel's performance had some "conceivable effect" on the outcome. (Id. at p. 693.) Rather, prejudice must be a demonstrable reality established based on facts in the record, not simply speculation as to the effect of the errors or omissions of counsel. (People v. Williams (1988) 44 Cal.3d 883, 933; People v. Montoya (2007) 149 Cal.App.4th 1139, 1151.) The assessment of prejudice is not limited to outcome determination, and instead it involves determining whether counsel's deficient performance rendered the result of the trial unreliable or the proceeding fundamentally unfair. (In re Avena (1996) 12 Cal.4th 694, 721; see Strickland, at p. 687 [to establish prejudice, the defendant must show that the deficient performance was "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable"].)
We see no prejudice here. Defendant claims the trial court's procedure permitted the jury to make improper inferences, including that he convinced Batten to invoke his privilege against self-incrimination because he was "conscious of his own guilt." According to defendant, this inference was "particularly true" here because the jury had already heard testimony that defendant attempted to convince Norris to invoke her privilege against self-incrimination and not testify at trial. Defendant adds that Batten's invocation of his privilege in front of the jury "arguably imbued his earlier identification [of defendant as the shooter] with more credibility," and that Batten's invocation of his privilege "could have caused the jurors to think that [defendant] had something to do with [the robbery and shooting] . . . and thus helped push them towards believing Batten's description of defendant's involvement in the [same]."
On this record, we cannot conclude that the asserted deficient performance of trial counsel rendered the result of defendant's trial unreliable or the proceeding fundamentally unfair. After Batten informed the jury that he would not honor his plea agreement and would instead invoke his privilege against self-incrimination, the trial court instructed the jury, pursuant to CALCRIM No. 320 (Exercise of Privilege by Witness), that "Batten was justified in refusing to answer certain questions," and that it was not to "consider his refusal to answer for any reason at all and . . . not [to] guess what his answer would have been." Our Supreme Court has found that an instruction similar to the one given here was adequate to cure any possible prejudice under analogous circumstances. (See Smith, supra, 40 Cal.4th at pp. 517-518 [concluding that the defendant failed to show prejudicial error where the jury was instructed, pursuant to CALJIC No. 2.25, not to draw any negative inferences about defendant from a witness's invocation of the privilege against self-incrimination].) Moreover, there was strong and compelling evidence of defendant's guilt. At trial, the prosecution presented substantial evidence corroborating Batten's preliminary hearing testimony (e.g., the surveillance footage captured by the Ski Run Liquor store and testimony regarding the same, eyewitness testimony that the shooter was the perpetrator with long hair, defendant's admission to Sanchez that he killed someone, defendant's admission to Muzio that he was at the murder scene and fired gunshots, defendant's cell phone records, defendant's flight shortly after the shooting). And the jury was specifically instructed, pursuant to CALCRIM No. 335 (Accomplice Testimony: No Dispute Whether Witness is Accomplice), that, if the charged crimes were committed, Batten was an accomplice, and that defendant could not be convicted based on the testimony of Batten alone. Further, Batten's preliminary hearing testimony was read to the jury, which combined with the other evidence presented at trial (including the testimony from the detective who conducted Batten's police interview), allowed the jury to assess Batten's credibility. In short, we are convinced that defendant suffered no prejudice from this disfavored practice.
To corroborate the testimony of an accomplice, the People must present "independent evidence," that is, evidence that "tends to connect the defendant with the crime charged" without aid or assistance from the accomplice's testimony. (People v. Perry (1972) 7 Cal.3d 756, 769, overruled on another ground by People v. Green (1980) 27 Cal.3d 1, 28.) Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime. (Perry, at p. 769; People v. Sully (1991) 53 Cal.3d 1195, 1228.) A defendant's presence at the crime scene can play a role in corroborating an accomplice testimony. (People v. Williams (2013) 56 Cal.4th 630, 679.) Evidence of defendant's flight after the crimes were committed supports an inference of consciousness of guilt and constitutes an implied admission, which may properly be considered as corroborative of an accomplice's testimony. (People v. Zapien (1993) 4 Cal.4th 929, 983.) A defendant's extrajudicial statements (including admissions) and cell phone records may also be used to corroborate an accomplice's testimony. (See People v. Gurule (2002) 28 Cal.4th 557, 628 [extrajudicial statements]; People v. Williams (1997) 16 Cal.4th 635, 680 [same]; People v. Mackey (2015) 233 Cal.App.4th 32, 124 [cell phone records].)
The CALCRIM No. 335 instruction given here told the jury that it could only consider a statement or testimony of an accomplice that tended to incriminate defendant if: (1) the accomplice's statement or testimony was supported by other evidence that the jury believed; (2) that supporting evidence was independent of the accomplice's statement or testimony; and (3) that supporting evidence tended to connect the defendant to the commission of the charged crimes, any lesser included offenses, and special allegations. (See CALCRIM No. 335.) The jury was also instructed to view any statement or testimony of an accomplice that tended to incriminate defendant with caution. (Ibid.)
II
CALCRIM No. 316
Next, defendant argues his trial counsel was ineffective for failing to object to the giving of CALCRIM No. 316 (Additional Instructions on Witness Credibility-Other Conduct). As given here, the instruction stated in pertinent part: "If you find that a witness has been convicted of a felony, you may consider that fact in evaluating the credibility of the witness's testimony. The fact of a conviction does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable." Defendant claims that by omitting the optional word "only," the trial court failed to inform the jurors that they could only consider Batten's guilty plea (i.e., murder conviction) to the extent it impacted his credibility and not for any other purpose. Defendant argues that it would have been "natural" for the jurors to use Batten's guilty plea as substantive evidence of defendant's guilt; thus, trial counsel was ineffective for failing to request that the word "only" be included in the instruction.
Alternative A to the challenged pattern instruction, which applies when (as here) there is a felony conviction, states: "If you find that a witness has been convicted of a felony, you may consider that fact [only] in evaluating the credibility of the witness's testimony. The fact of a conviction does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable." (CALCRIM No. 316, italics added.)
We discern no prejudice. Our Supreme Court has held that a trial court does not have a sua sponte duty to instruct the jury that an accomplice's guilty plea could only be used to assess their credibility. (People v. Dalton (2019) 7 Cal.5th 166, 254; see People v. Williams (2013) 56 Cal.4th 630, 668 [trial court had no duty to give a limiting instruction on its own motion instructing the jury that it could not infer the defendant's guilt from the accomplices' guilty pleas].) And the trial court correctly instructed the jury that it could consider Batten's murder conviction in evaluating his credibility. The fact that the jury was not informed that it could only consider Batten's murder conviction for that purpose does not establish prejudice under the circumstances presented. The trial court properly instructed the jury on how to assess a witness's credibility pursuant to CALCRIM No. 226. Among the factors the jury was told it could consider were whether a witness had been convicted of a felony, whether other evidence proved a fact about which the witness testified, whether the witness made a statement in the past that was inconsistent with his testimony, whether the witness admitted to being untruthful, whether the witness's testimony was influenced by bias, prejudice or a personal relationship with someone involved in the case, or a personal interest in how the case is decided, and whether the witness was promised leniency in exchange for his testimony. (CALCRIM No. 226.) Thus, the effect of the challenged instruction was simply to reiterate to the jury that it could consider Batten's murder conviction in evaluating his credibility. Nothing in the instructions given to the jury suggested that Batten's guilty plea (i.e., murder conviction) could be used as substantive evidence establishing defendant's guilt. And the jury was specifically instructed to consider not believing anything Batten said if it decided he deliberately lied about something significant in this case. (CALCRIM No. 226.) The jury was also instructed on how to assess accomplice testimony, including viewing any statement or testimony of an accomplice with caution and the evidence necessary to corroborate an accomplice's testimony.
Further, as discussed, the jury had an adequate opportunity to assess Batten's credibility by virtue of his preliminary hearing testimony and the other evidence adduced at trial. The prosecution introduced substantial evidence corroborating Batten's identification of defendant as one of the robbers and the person who shot and killed Wright. During closing argument, neither the prosecutor nor defense counsel mentioned Batten's plea agreement or murder conviction and defense counsel urged the jury not to believe Batten, to whom he referred as "the glue, the centerpiece of the [prosecution's] case," because Batton admitted to lying to a prosecutor and an investigator about "certain facts" and was not telling the truth when he testified at the preliminary hearing. In the rebuttal portion of closing argument, the prosecutor admitted that Batten had lied, but argued that he did so to "cover his ass" and to "minimize his involvement in this case." The prosecutor claimed Batten lied to protect himself and was truthful about defendant's involvement in the robbery and shooting. The prosecutor went on to argue that Batten's testimony was just one "piece" of the evidence against defendant, and that there was sufficient evidence to convict defendant for the robbery and murder without Batten's testimony (e.g., text messages, defendant's incriminating statements and admissions to Sanchez and Muzio). On the record before us, we conclude it is not reasonably probable defendant would have received a more favorable result absent the asserted deficient performance of trial counsel.
III
Motion for New Trial
Next, defendant argues the trial court erred in denying his motion for new trial, which was predicated on (among other things) multiple claims of ineffective assistance of counsel and the discovery of new evidence.
A. Additional Background
After the jury rendered its verdicts but prior to sentencing, defendant moved to dismiss his counsel and for appointment of new (i.e., conflict) counsel for the purpose of preparing a motion for new trial. The trial court granted defendant's motion, and conflict counsel ultimately moved for a new trial on various grounds, including ineffective assistance of counsel and the discovery of new evidence. On appeal, defendant asserts only some of claims he made in his motion for new trial. We limit our discussion to those contentions.
As relevant here, defendant asserted his trial counsel was deficient in failing to: (1) elicit testimony from two eyewitnesses (Collins and Keller) that they were unable to positively identify defendant as the shooter; (2) elicit testimony from Collins that he observed the two perpetrators in a red car prior to the shooting, that the taller of the two perpetrators was the shooter, and that the perpetrators looked so much alike they could have been related; (3) elicit testimony from Keller that the perpetrators fled the scene in a silver four-door sedan (as opposed to defendant's black two-door BMW); (4) call a witness (a motel guest named Nyziq Smith) who observed a "slender male wearing a grey sweatshirt with long black hair" leave the area in a gray four-door sedan after the shooting; (5) call Batten's cellmate (Dylan Foote) as a witness to testify that Batten said he was in jail for "killing a white, tweaker . . . at the Beverly Lodge," that Batten "lik[ed] to brag about killing the white tweaker," and that Batten threatened to kill his cellmate; and (6) introduce the contents of jail phone calls made by Batten, which showed that he was biased toward defendant and therefore had a motive to lie, regretted accepting a plea offer, and accepted the offer after being threatened by the prosecution. The purported newly discovered evidence consisted of a recorded interview with Batten over a year after the jury rendered its guilty verdicts against defendant, and after Batten was sentenced for his role in the events giving rise to this case. In that interview, which was conducted by a private investigator working for defendant, Batten claimed that he did not see the shooting, that he was "under extreme duress" when he made his initial statement to law enforcement and said anything he thought would get him out of trouble (including lies about what had happened), that he wanted to "get out of [his] plea deal," and that he was willing to testify about these matters.
The People filed a written opposition.
After a hearing, the trial court issued a written order denying the motion. As for the ineffective assistance claims predicated on trial counsel's failure to sufficiently examine certain eyewitnesses regarding the identity of the shooter, the court concluded that defendant had not shown prejudice. Although the court acknowledged there was "varying and inconsistent testimony about the physical description of the [perpetrators]," it found there was no reasonable probability of a more favorable outcome absent the asserted deficient performance "given the testimony about defendant's own incriminating admissions made to multiple people." The court also concluded that defendant had failed to show prejudice from trial counsel's failure to call the eyewitness from the Beverly Lodge (Smith), and that defendant had failed to show deficient performance or prejudice based on counsel's failure to call Batten's cellmate (Foote).
As for Batten's jail phone calls, the trial court found that defendant had not shown the calls were admissible, and therefore failed to establish prejudice from the failure of counsel to present that evidence.
Regarding the purported newly discovered evidence--the jail interview of Batten conducted by defendant's private investigator--the trial court rejected defendant's contention that Batten's statements constituted new evidence warranting a new trial. The court found that Batten's "new statements would not 'render a different result more probable on retrial of the cause,'" explaining that "the only value" of the statements were "as impeaching evidence and the statements do not point to defendant's innocence," and that, contrary to defendant's contention, the statements do not contradict the strongest evidence against defendant, which included "evidence of defendant's own admission to having killed someone in Tahoe." The court added that Batten's new statements "lacked credibility," as they were not made under penalty of perjury and Batten did not "clearly commit to testifying on behalf of defendant about the . . . statements." The court explained: "Presented with Batten's sworn testimony at the preliminary hearing versus a transcript of a phone interview between Batten and a private investigator for defendant, the court gives very little credence to statements Batten made during the interview." The court also noted that Batten had recently filed a motion to vacate his murder conviction under section 1170.95 (now codified at section 1172.6), and the declaration filed in support of that motion contained statements that were inconsistent with the statements he made to the private investigator.
Finally, the trial court found that defendant had failed to establish ineffective assistance based on trial counsel's health issues. The court explained it had separately addressed the specific arguments defendant made about trial counsel's purported "errors and/or omissions," and that counsel's illness, standing alone, was insufficient to warrant a new trial. The court further explained that, although counsel was seriously ill leading up to trial, he was "medically cleared to proceed with trial" by his physician after a continuance from November 2019 to February 2020, and defendant insisted on proceeding to trial even after being advised about the "peril" of "going forward when his attorney was not 100 percent healthy."
B. Applicable Legal Principles and Standard of Review
Section 1181 provides a number of specified grounds for a new trial, including newly discovered evidence. (§ 1181, subd. 8.) When a motion for a new trial is made upon this ground, the defendant must submit the affidavit of the witness by whom such evidence is expected to be given. (Ibid.)" 'To grant a new trial on the basis of newly discovered evidence, the evidence must make a different result probable on retrial.' [Citation.] '[T]he trial court has broad discretion in ruling on a new trial motion . . .,' and its 'ruling will be disturbed only for clear abuse of that discretion.' [Citation.] In addition, '[w]e accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence.'" (People v. Verdugo (2010) 50 Cal.4th 263, 308; see People v. Howard (2010) 51 Cal.4th 15, 43 [listing factors a court may consider in ruling on a motion for new trial, including the credibility of the new evidence].) When, as here, the newly discovered evidence comes in the form of a witness's recantation, the court's role "is to determine whether the new evidence is credible, i.e., worthy of belief by the jury." (People v. Minnick (1989) 214 Cal.App.3d 1478, 1482.) That determination is made after considering all the facts pertinent to the particular issue. (Ibid.) If the trial court finds the recantation believable, it must then decide whether consideration of the recantation would render a different result on retrial reasonably probable. (Ibid.) Generally, however, "the recantation of a witness should be given little credence." (Id. at p. 1481.) "It has long been recognized that 'the offer of a witness, after trial, to retract his sworn testimony is to be viewed with suspicion.'" (In re Roberts (2003) 29 Cal.4th 726, 742.)
Under California law, a nonstatutory motion for a new trial is also permissible "when necessary to protect a defendant's constitutional right to a fair trial." (People v. Knoller (2007) 41 Cal.4th 139, 158.) Ineffective assistance of trial counsel is a recognized ground for a nonstatutory motion for new trial. (People v. Fosselman (1983) 33 Cal.3d 572, 582-583; People v. Hoyt (2020) 8 Cal.5th 892, 958.)
Generally, we review a trial court's ruling on a motion for new trial for abuse of discretion. (People v. Thompson (2010) 49 Cal.4th 79, 140.) However, where, as here, the trial court has denied a motion for new trial based on an ineffective assistance claim, we apply the standard of review applicable to mixed questions of law and fact, upholding the trial court's factual findings to the extent they are supported by substantial evidence, but reviewing de novo the ultimate question of whether the facts demonstrate a violation of the right to effective counsel. (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725.) We set forth the standard for establishing a claim of ineffective assistance of counsel ante.
C. Analysis
We begin by noting the trial court would have been justified in denying defendant's request for a new trial on the ground of newly discovered evidence based on his failure to submit a declaration from Batten. (See People v. Beeler (1995) 9 Cal.4th 953, 1005, overruled on another ground as stated in People v. Edwards (2013) 57 Cal.4th 658, 705.) Nonetheless, we have examined the trial court's stated bases for its ruling and no basis for reversal is apparent. As the court found, defendant failed to establish the requisite prejudice to support a finding of ineffective assistance of counsel. For the reasons we have stated (including the strong and compelling evidence of defendant's guilt), we conclude there is no reasonable probability that the result would have been more favorable to defendant had counsel taken the actions he now claims were necessary.
Equally unavailing is defendant's contention that a new trial was warranted based on newly discovered evidence. Having reviewed the new trial motion papers and the purported new evidence, we see no abuse of discretion. The trial court found that the statements made by Batten during his post-trial interview with defendant's private investigator, which were made after Batten was sentenced for his role in the events giving rise to this case, were not credible to the extent they contradicted his sworn testimony at the preliminary hearing. We cannot say the court erred in finding Batten's recantation unworthy of belief, especially since he did not submit a declaration or affidavit in support of the new trial motion stating what he would testify about under penalty of perjury, and because he subsequently made statements in a declaration that were inconsistent with the statements he made to the private investigator. The trial court, having presided over both the trial and the new trial motion hearing, was particularly well suited to determine whether Batten's recantation lacked credibility. (People v. Minnick, supra, 214 Cal.App.3d at p. 1481 ["the trial court is in the best position to determine the genuineness and effectiveness of the showing in support of the motion"].) Where, as here, the claim of newly discovered evidence is predicated on a witness's recantation that is determined by the trial court to be unworthy of belief, there is no probability of a different result on retrial and no basis for granting the motion. (People v. Delgado (1993) 5 Cal.4th 312, 329.) On appeal, defendant has not offered any legal argument convincing us that it is reasonably probable he would receive a more favorable result upon retrial if the jury considered Batten's recantation. Indeed, as we have explained, Batten's preliminary hearing testimony implicating defendant as the shooter was corroborated by substantial, compelling evidence, including defendant's own incriminating statements and admissions to Sanchez and Muzio.
Given our finding of no prejudice, we need not and do not address the other arguments raised by the parties regarding this issue.
IV
Cumulative Error
Next, defendant argues a new trial should have been granted based on the combined effect of trial counsel's errors and illness. Defendant claims automatic reversal is required--that there is no need to show prejudice--because counsel's performance was so poor that it rendered his trial fundamentally unfair, as counsel's conduct amounted to a failure to subject the prosecution's case to meaningful adversarial testing. Alternatively, defendant contends reversal is required due to the cumulative prejudice from trial counsel's deficient performance.
A. Additional Background
In his motion papers, defendant argued that a new trial was warranted due to the combined prejudicial effect from his counsel's conduct (inappropriate comments, sleeping, misstating the evidence, failure to consult) and tactical errors, including counsel's failure to make an opening statement, impeach the prosecution's witnesses regarding their descriptions of the perpetrators, and call key eyewitnesses. At the hearing, the prosecutor questioned defense counsel about some of the conduct/decisions mentioned in the motion papers, including counsel's failure to call a certain eyewitness, failure to make an opening statement, and choice of identity as the defense theory as opposed to self-defense. On cross-examination, conflict counsel questioned defense counsel about his health. During that exchange, defense counsel explained that he was sick throughout the trial and there were times when he was feeling fatigued and had difficultly focusing, concentrating, and "fully" participating. Upon questioning, defense counsel denied that he felt overwhelmed or was struggling to stay awake at trial, although he conceded that he may have said he "needed sleep" at one point, and that he was "highly stressed" because Batten chose not to testify at trial. Defense counsel also admitted that he had "problems remembering aspects of the evidence" presented at trial, that he had "problems" with "keeping [the middlemen involved in the drug deal] straight," that he made a misstatement in closing argument regarding reasonable doubt, and that he had respiratory problems (difficulty breathing, shortness of breath) that required hospitalization prior to trial, and was experiencing similar symptoms at trial. When asked, defense counsel explained that he did not call certain witnesses because he determined that they would not be helpful to the defense, and that he did not introduce Batten's jail phone calls because, in his opinion, there was nothing of relevance to the defense in those calls.
We only recite the relevant testimony from the hearing.
During his testimony, defense counsel explained that he had been practicing law for 41 years, had practiced criminal defense exclusively since 1983, and had conducted over 200 trials in his career.
In rejecting defendant's cumulative error argument, the trial court explained that it had rejected each of defendant's claims of error on the merits. As for defense counsel's health, the court noted that he was "medically cleared to proceed with trial," and that defendant insisted on proceeding to trial despite counsel's health issues. The trial court made no explicit finding as to defendant's claim that his counsel slept during the trial proceedings.
B. Applicable Legal Principles
As previously indicated, to prevail on a claim of ineffective assistance of counsel, a defendant must typically show both that his counsel's performance fell below an objective standard of reasonableness under prevailing professional norms and prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. (People v. Gray, supra, 37 Cal.4th at pp. 206-207.) However, there are three situations in which a defendant need not show prejudice to prevail on a claim of ineffective assistance of counsel. (United States v. Cronic (1984) 466 U.S. 648, 658662); Bell v. Cone (2002) 535 U.S. 685, 695-696.) As relevant here, in the second situation, a trial is deemed presumptively unfair when "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing." (Cronic, at p. 659; Bell, at p. 696; see also People v. Brown (2012) 59 Cal.4th 86, 115 [prejudice presumed only where the attorney's failure to test the prosecution's case was "complete"].) This is a "very narrow" exception to the prejudice requirement that only applies where counsel was either totally absent or was prevented from assisting the defendant at a critical stage. (People v. Rices (2017) 4 Cal.5th 49, 91; Brown, at p. 115.) "Prejudice must be shown if counsel has opposed the prosecution throughout the relevant proceeding, even if counsel failed or was unable to do so at specific points." (People v. Hernandez (2012) 53 Cal.4th 1095, 1106.)
C. Analysis
We see no basis for presuming prejudice. The "very narrow" exception described by People v. Cronic on which defendant relies does not apply here. Defendant was represented by counsel at all times and was never denied counsel or its equivalent at any point during the trial court proceedings. Nor was there a complete failure by defense counsel to subject the prosecution's case to meaningful adversarial testing. The record does not reflect that counsel failed to oppose the prosecution's case throughout the proceeding as a whole or with respect to any particular aspect or stage of the proceedings. The alleged deficiencies of counsel were largely particularized and involved tactical decisions, and nothing in the record supports the conclusion that counsel's health issues significantly affected every aspect of the trial or any critical stage of the trial, such that defendant was effectively denied counsel. In short, this is not the rare case where Cronic's presumed prejudice rule applies. A fair reading of the record does not support the conclusion that defense counsel completely failed to subject the prosecution's case to meaningful adversarial testing.
People v. Ruiz (2023) 89 Cal.App.5th 324, on which defendant relies, does not support a contrary result. There, the appellate court concluded that the defendant was not required to show prejudice to prevail on an ineffective assistance claim due to the complete inaction by his counsel at resentencing, which was reasonably attributable to counsel's brain tumor. (Id. at pp. 331-333.) In so concluding, the Ruiz court found that defense counsel's performance related to resentencing amounted to a complete failure to subject the prosecution's case to meaningful adversarial testing where counsel suffered from significant memory issues at the time of resentencing and did nothing before, during, or after the resentencing hearing to assist the defendant. (Id. at pp. 332-333.) Because Ruiz is clearly distinguishable from the circumstances of this case, we do not discuss it further.
For the reasons we have discussed, we reject defendant's alternative contention that reversal is required due to the combined prejudicial effect of the asserted deficient performance of his trial counsel.
V
Sentencing Error
Finally, defendant asserts the matter must be remanded for resentencing because the trial court was unaware of its discretion to impose a concurrent term on the dissuading a witness count. (§ 136.1, subd. (a)(2).)
A. Additional Background
At sentencing, defendant requested the trial court "strike the [LWOP] enhancement" attached to the murder count on the ground that such a sentence would constitute cruel and/or unusual punishment under the federal and state constitutions, strike the firearm enhancements, and impose concurrent low terms for the remaining counts. In making the latter request, defendant objected to the probation department's recommendation for consecutive sentences. As for the dissuading a witness count, defendant stated: "[E]ven though [section] 1170.15 has a full midterm stacking rule, that [rule] only applies if the Court intends to impose consecutive sentences, and for the previous reasons stated, I'm asking the Court to run all those counts concurrent."
Prior to imposing sentence, the trial court stated that it had read and considered the probation officer's report. In the report, the probation officer recommended the maximum possible sentence, including a consecutive sentence on the dissuading a witness count. The probation officer did not state or suggest that a consecutive sentence on this count was required under the sentencing law. Instead, the probation officer recommended a consecutive term of two years on that count, "the full mid-term . . . pursuant to § 1170.15."
In response, the prosecutor requested the "maximum" sentence possible under the circumstances, including a "full consecutive" sentence on the dissuading a witness count "pursuant to 1170.15." As for the robbery counts, the prosecutor conceded that "we're going to have to reduce those to the midterm given the new change in the law regarding aggravating factors that have to be pled and proven and found beyond a reasonable doubt."
After finding that the circumstances in aggravation outweighed those in mitigation, the trial court imposed an LWOP sentence for the murder count (§§ 187, subd. (a), 190.2, subd. (a)(17)) and a consecutive sentence of 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)) attached to that count, imposed but stayed (§ 654) a consecutive three-year middle term for the robbery of Wright (§ 211), imposed a consecutive three-year middle term for the robbery of Ghiorso (§ 211) and imposed but stayed (§ 654) a consecutive term of 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)) attached to this count, and imposed a consecutive term of eight months (one third the midterm) on the dissuading a witness count (§ 136.1, subd. (a)(2)). In imposing sentence for the determinate terms, the court indicated that it was limited to imposing the middle or low term due to "the change in the law" related to those "terms." The court acknowledged that it had discretion to strike the firearm enhancements or impose a lesser enhancement in their stead but decided not to do so, citing the "callousness of the crime" and the "interest of justice." The court also "decline[d] to . . . run" the firearm enhancement attached to the murder count "concurrent" based on "the totality of the evidence presented at trial."
In imposing sentence as to this count, the trial court stated: "As to Count 3, which is the 211 [i.e., robbery] of Ms. Ghiorso, she is, in fact, a separate victim. It's a separate act, and I think that the Defendant is a principal in that act, so I will impose the middle term of three years on that count. [¶] And then as it relates to the 12022.53(d), I will impose the 25 years to life under 12022.53(d) but will stay it under 654, even though Ms. Ghiorso is a separate victim. I'm only going to impose the 12022.53 enhancement once, because I think although Ms. Ghiorso was a separate victim, I think that the 12022.53(d) conduct is merged within the conviction for Count 1 [i.e., murder count] as well as the enhancement."
Defendant objected to the trial court's imposition of a consecutive sentence on the dissuading a witness count, "for the previous reasons as stated." The prosecutor also objected, arguing that "a full consecutive" middle term sentence was required under section 1170.1. In response, the trial court said: "I should restate myself and then impose the three plus two for a total of five." In other words, the court imposed a three-year term for the robbery count pertaining to Ghiorso and a consecutive (full) two-year term for the dissuading a witness count, rather than the consecutive eight-month term (one-third the midterm) previously imposed.
B. Applicable Legal Principles
At sentencing, when a person is convicted of two or more crimes, the trial court "shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively." (§ 669, subd. (a).) Where the court imposes consecutive sentences, "[t]he subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed." (§ 1170.1, subd. (a).) But, pursuant to section 1170.15, when a defendant is convicted of a felony and of an additional felony for dissuading a witness," 'the subordinate term for each consecutive offense' of dissuading a witness must be the full middle term for the dissuading a witness count plus any enhancements applicable to that count." (People v. Woodworth (2016) 245 Cal.App.4th 1473, 1479, § 1170.15.) However, "the plain language of section 1170.15 does not mandate consecutive sentences." (Woodworth, at p. 1479.) Rather, section 1170.15 "indicates that if the trial court chooses consecutive sentencing it must impose a full-term sentence for the witness dissuasion count." (Ibid.)
"Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to 'sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,' and a court that is unaware of its discretionary authority cannot exercise its informed discretion." (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) However, where the record is silent as to whether the trial court misunderstood its sentencing discretion, we must presume the court understood its discretion and sentenced defendant accordingly. (Id. at p. 1229; People v. Fuhrman (1997) 16 Cal.4th 930, 944-946.)
C. Analysis
We conclude there is no sentencing error requiring remand. Nothing in the record discloses that the trial court was unaware of its sentencing discretion. The case relied upon by defendant, Woodworth, supra, 245 Cal.App.4th 1473, is factually inapposite. In Woodworth, the trial court explicitly asserted its erroneous understanding that it lacked discretion to impose a concurrent sentence. (Id. at pp. 1478-1480.) But here, the record does not show the court acted on the erroneous assumption it lacked discretion to impose such a sentence. The court made no statement indicating or suggesting a lack of awareness regarding its sentencing discretion. The probation officer and prosecutor advocated for a consecutive sentence on the dissuading a witness count, whereas defense counsel urged the court to impose a concurrent sentence on that count. And, as defendant recognizes, the court imposed a standard one-third the midterm consecutive sentence on the dissuading a witness count prior to the prosecution's assertion that a "full consecutive" sentence was required. Thus, we must presume the court understood its discretion and properly sentenced defendant.
We note that the record reflects that the court would impose the same sentence even were we to remand; its comments at sentencing make clear that it intended to impose the sentence it believed to be the maximum allowed under the current sentencing laws. Remand would be an idle and unnecessary act. (People v. Coelho (2001) 89 Cal.App.4th 861, 889-890.)
Given our conclusions, we need not and do not address defendant's alternative contention that trial counsel provided ineffective assistance at sentencing.
DISPOSITION
The judgment is affirmed.
We concur: Mauro, Acting P. J., Feinberg, J.