Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C153482
Pollak, Acting P.J.
Defendant Dwayne Washington appeals from a judgment convicting him of, among other things, first degree murder and sentencing him to life in prison without possibility of parole. He contends that his attorney provided ineffective assistance at trial by failing to object to inadmissible evidence and improper argument and by failing to request a modification of the instructions on accomplice testimony. Defendant also has filed a petition for a writ of habeas corpus, which we have consolidated with the direct appeal, raising the same arguments regarding the alleged ineffective assistance of counsel. We affirm the judgment and deny the habeas petition.
Factual and Procedural Background
On September 29, 2006, defendant was charged by information with one count of murder (Pen. Code, § 187) and one count of possession of a firearm by a felon (§ 12021, subd. (a)(1)). The information alleged that during the course of the murder, defendant personally discharged a firearm, causing death, and that defendant had committed the murder in the course of a robbery. (§§ 12022.7, 12022.53, subd. (d), 190.2, subd. (a)(17)(A).) Defendant’s first trial resulted in a mistrial after the jury was unable to reach a verdict.
All statutory references are to the Penal Code.
In April 2007, the matter was retried. The following evidence was presented at trial: Verron Armstrong testified that at approximately 7:00 a.m. on November 13, 2004, he was riding in a car with his brother Gregory Peters, defendant, and “One-eye Dave.” All three had been using drugs and wanted to buy some marijuana. Armstrong told the others that he had heard that the victim, Damon Daniels, had “a whole lot of weed in his house, probably a couple of pounds, a pound.” Defendant had known Daniels since junior high school and as they drove past his home defendant said, “There go his house over there.” Defendant told the others he was angry with Daniels because on prior occasions Daniels had refused to give him drugs. Defendant told Dave to stop the car and said “We fitting to go up in there,” meaning they would break into his home.
While Dave stayed in the car, defendant led the two others down an alley. Armstrong and Peters climbed a fence and entered the house through a bathroom window, then let defendant in through the front door. Defendant led them to Daniels’s bedroom, where Armstrong broke open the door with his shoulder. Armstrong woke Daniels and asked, “Where it’s at?” and defendant added, “Give it up.” While defendant held the gun to Daniels’s head, Armstrong and Peters searched the room and located “a lot” of marijuana and $2,000 in cash, which they put into Daniels’s pillowcases. As Armstrong followed Peters out of the room and headed down the hallway, he unexpectedly encountered Gery Gilbert, Daniels’s mother. Gilbert, who worked for the Oakland Police Department, ran into her bedroom and called the police. She told them there were “at least three men” in her house “doing something with her son.” While on the phone, Gilbert heard gunshots. Armstrong testified that as he and Peters fled the house, he heard defendant fire his gun three times. Daniels died as a result of multiple gunshots to his head.
Armstrong acknowledged that he had pled guilty to manslaughter for his participation in this crime in exchange for an 11-year sentence and his truthful testimony at defendant’s trial. Armstrong had two prior drug-related convictions and a prior robbery conviction. He testified that prior to defendant’s first trial, defendant threatened that he would harm both him and his children if he testified.
Two days after the killing, defendant was arrested for an unrelated robbery. While he was being interviewed, the officer asked him about Daniels’s murder and defendant responded that “the best way for that robbery to have occurred” was to use the alley by Daniels’s home. Defendant was placed in a holding cell with another inmate, Anthony Moore. While in the cell, defendant was upset, “spaced out,” and in the corner mumbling to himself about how he killed somebody. He told Moore that he had been picked up on a probation violation, but that “he was down for a murder-robbery and that the lady worked down here in Oakland City Jail and he feared for his life by the police.” Defendant said he thought “the lady seen him leaving a place.” Moore immediately spoke with the police and gave a taped statement.
When defendant was later questioned by the police about his statements, he initially denied saying anything in the holding cell, but later admitted making the statements, claiming that he was just trying “to earn respect in the jail because he had been a witness in [another] case.” When asked how he knew Gilbert had seen someone, defendant “waivered a little bit” but claimed he read it in the newspaper. This information about the murder, however, was not released to the media or contained in a newspaper article. After the officer told him that the information had not been in the newspaper, defendant claimed that his friend Kamua told him. Defendant told the officers that he was at Larry Candies’ house at the time of the murder.
Defendant was not arrested for Daniels’s murder until March 8, 2006. When interviewed the next day, he claimed that at the time of the murder he had been at the home of Karen Harris, who is referred to throughout the record as either his girlfriend or his wife. While in custody, defendant had numerous conversations with Harris regarding his alibi. Those conversations were recorded and played for the jury.
In the first conversation, on March 16, defendant spoke with both Harris and Candies. He asked Candies whether he remembered that in November he and his girlfriend had been sleeping at his apartment. Defendant told him to read the newspaper article about the murder and then call the police detectives to let them know that he and his girlfriend were at his house the night of the murder. Two days later, when defendant and Harris spoke again, she told him that Candies had called the detective and told him that they slept in his apartment during the month of November. Candies did not specify which day in November because he could not remember and he was “not fixin’ to lie.” Defendant responded, “[T]hat shit’s out the door right there. That’s over.” Defendant asked Harris to come see him so they could “get our stuff together.” The following day they went over defendant’s alibi on the telephone. Defendant explained that they needed to find out what Armstrong, Peters and Dave were saying about the timing of the crime because if they said “we was together all night, or we was together the next day, or if they even seen me the next day that’ll do it right there cause I was in jail.” Later he explained that he was hoping his codefendants would say that they saw him a week or two after the crime, because he could prove they were lying since he was in jail at that time. During the same conversation, when defendant claimed that he “was getting away with murder” with respect to something else, Harris said “Yeah, but you need to get away with this.” Defendant said, “I didn’t do nothin” and Harris responded, “I know you didn’t but I’m just sayin’ though.” Two months later, on May 16, defendant and Harris discussed his case again. Defendant asked Harris what time Daniels’s had died, indicating that the paper said it was 8:00 a.m. When Harris responded, “He had to die after 8 o’clock if y’all shot him at 8 o’clock,” defendant protested, saying “Hold on. Don’t say nothin’ like that. Stop, don’t do that on these phones though.” He added, “Don’t do that Nicole. You got to be on top of that. That, That’ll cost. Don’t do that, Nicole. On the real, don’t . . . that’s how people get convicted. These people, cause they misunderstand what, what these phones be sayin’. Man, don’t say y’all. Don’t put me with them dudes like that, Nicole. That’ll cost.” Defendant acknowledged a number of times during these conversations that he knew his phone conversations were being recorded.
At trial, defendant testified that he and Harris had been staying with Candies on the night Daniels was killed and that Candies had woken them around 7:30 a.m. to go to church. About 9:00 or 10:00 a.m. he learned that Daniels had been killed. He testified that he had never been in Daniels’s house. He knew the block on which he lived but not which was his house. When asked about a prior recorded statement he made to the police in which he said that he had been in Daniel’s house “several times,” defendant answered, “I remember being interviewed but I don’t remember answering those questions. I don’t remember telling the police that I been in my partner house. I know I never been in there several times.” Defendant testified that he was arrested for the unrelated robbery at 10:00 or 11:00 a.m. on November 13. He continued to insist that he was arrested on the morning of November 13, even after being reminded that the police officer and the police documents showed that he was arrested on November 15. Neither Candies nor Harris testified.
The jury found defendant guilty of first degree murder and illegal possession of a firearm and found true the firearm enhancement and special circumstance allegation. Defendant was sentenced to life in prison without possibility of parole. Defendant filed a timely notice of appeal.
Discussion
I. Ineffective Assistance of Counsel
Defendant asserts numerous claims of ineffective assistance of counsel. To succeed on a claim of ineffective assistance, a defendant must show that “counsel’s representation fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms.” (Strickland v. Washington (1984) 466 U.S. 668, 688.) In addition, a defendant must affirmatively establish prejudice by showing “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Id. at p. 694.) “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.” (Id. at p. 697.)
A. The Recorded Telephone Conversations
As set forth above, portions of defendant’s recorded conversations with Harris were played for the jury. Defendant does not challenge the admissibility of most of those recordings. He contends, however, that his attorney provided ineffective assistance by failing to object to Harris’s statement in the May 16 telephone conversation that “He had to die after 8 o’clock if y’all shot him at 8 o’clock.” The following is a portion of that conversation:
“[Defendant]: Yeah, I mean, I’m just saying, I could, I could almost win it by myself though. You know, I’m just sayin . . . like, where, where was I, where was I at, the things I was doing, you feel me, at this point in time. 7:30 to 8:00 o’clock. What time was dude pronounced, what time, did they tell you what time he was pronounced dead?
“[Harris]: Uh, shit, he had to die . . .
“[Defendant]: Paper say 8 o’clock. Paper say 8.
“[Harris]: He had to die after 8 o’clock if y’all shot him at 8 o’clock . . .
“[Defendant]: Hold on. Don’t say nothin’ like that. Stop, don’t do that on these phones though.
“[Harris]: No. I’m not sayin’ it like that. I mean . . .
“[Defendant]: Don’t do that Nicole. You got to be on top of that. That, that’ll cost. Don’t do that, Nicole. On the real, don’t . . . that’s how people get convicted. These people, cause they misunderstand what, what these phones be sayin’. Man, don’t say y’all. Don’t put me with them dudes like that, Nicole. That’ll cost.
“[Harris]: Well, whatever happened. You know what I’m saying. Whatever happened.
“[Defendant]: No, no, what they done. I ain’t . . . Lord, don’t do that Nicole. Don’t say y’all. Don’t put me with them dudes. Man, I ain’t finna . . .
“[Harris]: Well, them niggas. Them niggas, not you babe. I’m not talkin’ about you.
“[Defendant]: I, I, I know you, we know. Nicole, me and you know what you sayin’, but these, they listen on these phones and they will take that, you know what I’m saying.”
Although this conversation was not mentioned in the prosecutor’s initial closing argument, in his rebuttal argument the prosecutor argued that Harris’s statement explained why Harris was not called as a witness. After listing each of the persons defendant might have called to confirm his alibi who did not testify, including Harris, Candies and others, the prosecutor added, “And you want to know why it’s dangerous for him to put on his wife, Karen Harris? Because she knows the truth. She knows the truth. He just told her the truth. He knows she knows the truth . . . .” The prosecutor replayed the May 16 phone conversation then continued, “That’s her telling the defendant he had to die after eight o’clock if you all shot him at eight o’clock. She knows he was getting away with murder. That is a natural flow of a conversation. That is not interpreted by me. . . . And what wife, if her husband was laying in bed with her, would ever assume that her husband was out committing murder? You would have heard her saying, you know, ‘I don’t know what time it was.’ He would not even be in the conversation as being in the room. . . . That’s why you’re not hearing from her because she knows the truth. And if that comes out in just a casual conversation between her and the defendant, imagine what would happen under cross-examination.”
Defendant’s attorney did not object to the admission of the recorded statement into evidence. Defendant now argues that his attorney should have objected to Harris’s statement that “He had to die after 8 o’clock if y’all shot him at 8 o’clock” on the ground that it was inadmissible hearsay, and that his attorney’s failure to object or at least request a limiting instruction amounted to ineffective assistance of counsel.
Evidence Code section 1200, subdivision (a) defines hearsay as “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” “Except as provided by law, hearsay evidence is inadmissible.” (Id., subd. (b).) The statement by Harris to which defendant refers, like others made during the course of the recorded telephone conversations, was admissible to prove defendant’s attempts to manufacture an alibi, if not for the truth of the implicit assertion that defendant shot Damon. In addition, Harris’s statement arguably was admissible under the adoptive admission exception to the hearsay rule. (Evid. Code, § 1221.) “There are only two requirements for the introduction of adoptive admissions: ‘(1) the party must have knowledge of the content of another's hearsay statement, and (2) having such knowledge, the party must have used words or conduct indicating his adoption of, or his belief in, the truth of such hearsay statement.’ ” (People v. Silva (1988) 45 Cal.3d 604, 623.) In People v. Preston (1973) 9 Cal.3d 308, 314-315, the court explained, “If a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution, and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt.” “To warrant admissibility, it is sufficient that the evidence supports a reasonable inference that an accusatory statement was made under circumstances affording a fair opportunity to deny the accusation; whether defendant’s conduct actually constituted an adoptive admission becomes a question for the jury to decide.” (People v. Edelbacher (1989) 47 Cal.3d 983, 1011.) Here, although defendant took strong exception to Harris’s statement when she made it, his response can reasonably be interpreted not as a denial of its truth but as an expression of concern about providing the prosecution with evidence that could be used against him. Thus, arguably defendant’s response indicated he was adopting the implication in Harris’s statement.
Because the statement definitely was admissible for a nonhearsay purpose and also might be considered an adoptive admission, defendant’s attorney at most was derelict in failing to request the court to instruct the jury with CALCRIM No. 357, which states the factual predicates the jury must find to treat a statement as an adoptive admission, and to give a limiting instruction concerning the use of the statement if the jury found that it was not an adoptive admission. As the Attorney General suggests, however, it is not unreasonable to suppose that defendant’s trial attorney had tactical reasons for not requesting such limiting instructions. Defendant’s appellate attorney argues, “Understandably, [defendant] was also concerned—just as an innocent person would be—about the fact that Harris was not only making false assertions, but doing so during a monitored telephone conversation. However, nothing in his statements remotely contained either an explicit or implicit acknowledgment that what Harris had just said was true.” Had defendant’s trial counsel similarly believed that the jury was likely to understand the conversation in the same way, he may well have wanted to avoid emphasizing the statement or suggesting that it was subject to a more incriminating interpretation by requesting limiting instructions. (See People v. Maury (2003) 30 Cal.4th 342, 394 [“A reasonable attorney may have tactically concluded that the risk of a limiting instruction . . . outweighed the questionable benefits such instruction would provide”].) It is defendant’s burden to show that no reasonable attorney would have failed to request such instructions (People v. Hernandez (2004) 33 Cal.4th 1040, 1052-1053) and he has failed to do so. We cannot say there was no possible reasonable explanation for failing to request the limiting instructions, and therefore defendant has failed to establish the ineffectiveness of his attorney’s performance in this respect.
A declaration filed by defendant’s appellate counsel in support of his habeas corpus petition indicates that he communicated with defendant’s trial counsel on a number of occasions requesting the attorney to provide an explanation for any tactical decisions not to object to certain evidence or argument, and that trial counsel was not forthcoming with any such information. While the attorney’s failure to respond may indicate an unwillingness to cooperate in establishing his own failings, it also may indicate an unwillingness to provide information that would undermine his former client’s attempt to reverse his conviction. In all events, trial counsel’s failure to respond does not relieve defendant of his burden to establish ineffective assistance. Defendant has offered no declarations from other attorneys or other evidence to establish that trial counsel’s performance was below prevailing professional standards.
Even assuming, however, that prevailing standards would have required defendant’s attorney to request limiting instructions, the absence of any such instruction was not prejudicial. The evidence against defendant was substantial. Although Armstrong’s credibility was questionable, Moore’s testimony about the statements defendant made to him in their jail cell within two days of the killing provided strong corroboration. As the police officer opined, “The information from Anthony Moore contained information that only somebody there should have known like where the victim had been shot. That was not put out. And the information from Anthony Moore seemed very credible for that reason.” Although defendant’s attorney suggested that the information was not inside information because it might have been leaked by Gilbert to a neighbor, he did not explain how Moore would have had access to the information or connected it to defendant. In contrast, defendant’s defense was weak at best. In addition to the numerous inconsistencies in his testimony, including whether he had ever been to Daniels’s house and how he learned that Gilbert was at home during the murder, his alibi was thoroughly discredited and his attempts to establish the alibi destroyed his credibility.
Moreover, the record does not support defendant’s suggestion that Harris’s statement “eviscerated [his] claim of an alibi” and “was a critical piece of evidence to the prosecution’s case.” Defendant’s alibi testimony—that he was arrested two hours after the killing occurred and thus remembered clearly that he was with Harris at the time of the killing—was eviscerated by police documents showing that he was not arrested until two days later, by the other recorded conversations in which he appeared to be fabricating his alibi, and by the failure of any witness to corroborate his testimony. Further, the prosecutor’s treatment of this evidence undermines defendant’s contention that it was critical. The prosecutor did not mention Harris’s statement until his rebuttal argument and even then the argument was relatively short and addressed primarily the significance of defendant’s failure to call Harris as a witness. In light of the cumulative weight of the evidence presented at trial, it is not at all likely that an instruction limiting the use of Harris’s statement would have affected the verdict.
Defendant’s reliance on the first hung jury to show prejudice is unfounded. In the first trial, the prosecutor chose not to introduce any of defendant’s recorded telephone conversations from jail. In the second trial, the prosecution introduced the recordings, including the unobjectionable conversations with Candies and Harris. This evidence strongly supported the prosecution’s contention that defendant was fabricating an alibi. There is no basis to conclude that it was the absence of a limiting instruction that resulted in a guilty verdict in the second trial.
B. Improper Character Evidence
Defendant contends that his attorney provided ineffective assistance by failing to object to evidence, cross-examination and argument intended to bring inadmissible character evidence before the jury. Under Evidence Code section 1101, subdivision (a), “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” Subdivision (c) adds, however, “Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.” (See also People v. Kennedy (2005) 36 Cal.4th 595, 620 [“evidentiary limitations on the use of evidence of specific instances of prior misconduct . . . do not apply to evidence offered to support or attack the credibility of a witness”].) “When a defendant voluntarily testifies, the district attorney may fully amplify his testimony by inquiring into the facts and circumstances surrounding his assertions, or by introducing evidence through cross-examination which explains or refutes his statements or the inferences which may necessarily be drawn from them.” (People v. Cooper (1991) 53 Cal.3d 771, 822.) A defendant who elects to testify has no right to cloak himself in a false aura of credibility. (Evid.Code, § 1101, subd. (c); People v. Mayfield (1997) 14 Cal.4th 668, 754-755.) This is especially true if a defendant asserts that he is peaceful and has never committed an offense of the kind charged. (E.g., People v. Westek (1948) 31 Cal.2d 469, 476-480.)
Defendant argues that his attorney should have objected to the admission of statements made by him to Harris during their telephone conversation on March 19. During that call, defendant told Harris at least three times that if he was at home he would “slap the fuck out of [her]” because she wouldn’t do what he asked her to do. During cross-examination, the prosecutor replayed this phone conversation and asked defendant whether the person on the phone was the “real Dwayne Washington” and whether that person, the one who wants to hurt someone who does not do what he wants, was “the Dwayne Washington that was in the room with [Damon] that night.” The Attorney General argues that this evidence was “relevant to [defendant’s] efforts to fabricate an alibi and intimidate a witness” and to defendant’s credibility. The Attorney General’s theory of relevance may be sound, particularly in light of defendant’s testimony that he was not asking Candies to lie about his alibi. However, the evidence was used to make a very different point during the cross-examination quoted above and in closing argument. The prosecutor used defendant’s threats to argue that defendant is an angry, violent person “who wants to hurt people when they don’t do what he wants them to do. . . . [O]ne that will kill you because you didn’t do what he wanted.”
While the prosecutor’s argument may have been objectionable, the failure to object was not necessarily ineffective assistance or prejudicial. Defendant acknowledged throughout his testimony that he had a history of violent confrontations. He testified that he was arrested on November 13 because he assaulted a woman because she and her boyfriend had beaten him a few months before. He also claimed that at the time of the murder he was fighting with Harris. Moreover, defendant acknowledged two additional violent encounters, one of which resulted in his being arrested. Considered in context, defendant’s statements that he would have slapped Harris were relatively benign insofar as they were used to show his violent nature.
Defendant also contends that his attorney should have objected to the prosecutor’s argument regarding the two other violent incidents. During cross-examination, the prosecutor questioned defendant about an incident in 1993 in which he was accused of entering the home of Ricky Baker and pointing a gun at his head. Defendant admitted that he and Baker had been in a fight, but denied using a gun. He claimed that Baker knew where defendant kept his gun and lied to the police because he was embarrassed that defendant “got the best of him in an altercation.” The prosecutor also questioned defendant about an incident in 2001 in which he was accused of shooting at James Zeno. Defendant admitted hitting Zeno, but denied shooting at him. The prosecutor asked defendant to refresh his memory by reading a witness statement contained in the police report. After reading the report, defendant again denied shooting at Zeno. The prosecution continued, “So when they called the police and said you shot at Mr. Zeno, they were lying on you too?” Defendant responded, “No. She didn’t say I shot at him. She said she was inside and she heard a shot and she came out and seen me standing there. She didn’t say she seen me with a gun. No, I did not shoot at him.” In closing argument, the prosecutor relied on these incidents as evidence that defendant lacked credibility: “ [E]ven as a juvenile, he [was] breaking into Rocky Baker’s window, sticking a gun at his head and pulling the trigger, saying, ‘I’m going to get you, punk.’ [¶] He’s the same man who shot at James Zeno after he called Mr. Zeno’s girlfriend a bitch. He then takes the next step and shoots at Mr. Zeno. [¶] . . . [¶] So, who is the one who has the most credibility? It is not the defendant. He has no credibility because he will say and do whatever it takes to keep getting away with murder.”
Defendant argues that the prosecutor’s cross-examination was improper because “they assumed facts not in evidence, since there was no evidence in the record that [defendant] had shot at James Zeno or pulled a gun on Ricky Baker” and “more critically, the prosecutor’s questions were improper because the unmistakable implication behind the questions was that, because of the Ricky Baker and James Zeno incidents, the jury should infer [defendant’s] general propensity to do violence.” In his reply brief, defendant emphasizes that with regard to the two violent incidents, “it was not the evidence that was objectionable; it was the prosecutor’s conduct. [He] does not dispute that the prosecutor was entitled to ask him about the alleged shooting incident with James Zeno . . . [or that] after he denied shooting at Zeno, the prosecutor had the right to bring in live witnesses to testify about the incident. What the prosecutor could not do, however, was to announce that he had a police report and proceed to read excerpts of that report into evidence.”
Whether or not the prosecutor’s arguments went too far and were subject to objection, we cannot say that it was below the standard of competence for trial counsel to have remained silent and refrained from potentially emphasizing the testimony by making an objection which might or might not have been sustained. (People v. Lucas (1995) 12 Cal.4th 415, 444 [“The decision whether to object to evidence at trial is a matter of tactics and, because of the deference accorded such decisions on appeal, will seldom establish that counsel was incompetent”].) Defendant acknowledges that it was permissible for the prosecutor to question defendant regarding these incidents and, as explained above, much of the properly admitted evidence established that defendant had a history of violence. The additional disputed facts regarding his alleged use of a gun, which he admitted owning, was not likely to have altered the jury’s opinion of defendant so much as to alter its verdict.
C. Accomplice Instructions
Defendant contends that his attorney “provided ineffective assistance . . . by failing to request a modification [of] the accomplice instructions to make clear that an in-custody informant’s testimony cannot supply the corroboration necessary to support the testimony of an accomplice.” Defendant acknowledges that the jury was properly instructed that (1) an informant’s testimony should be viewed with caution (CALCRIM No. 336), (2) an accomplice’s testimony must be corroborated, and (3) an accomplice’s testimony cannot be corroborated by the testimony of another accomplice (CALCRIM Nos. 334, 335, 708). He argues, however, that his attorney should have requested an additional instruction that an accomplice’s testimony cannot be corroborated by the testimony of an in-custody informant. Recognizing that there is no authority for this request, defendant argues that “such an instruction is consistent with recent trends in the law.” We disagree. The fact that the testimony of both an in-custody informant and an accomplice should be viewed with caution does not mean that the testimony of the informant, if credited by the jury, cannot be used by the jury to corroborate the accomplice’s testimony. (See People v. Williams (1997) 16 Cal.4th 153, 181, 226 [failure to instruct on accomplice testimony was not prejudicial where accomplice’s testimony was corroborated by testimony of jailhouse informant to whom defendant made incriminating admissions].)
D. Sergeant Cruz’s testimony
During his direct examination, Sergeant Louis Cruz testified that he listened to a recording of an interview with Gregory Peters, who was with defendant when they entered the victim’s home, in which Peters gave “information” regarding the suspects in this case, including defendant. After receiving this information, Cruz arrested Armstrong and then, after interviewing Armstrong, he arrested defendant. Peters did not testify at trial. Defendant contends that his counsel provided ineffective assistance by failing to object to Cruz’s testimony as a violation of the confrontation clause as set forth in Crawford v. Washington (2004) 541 U.S. 36 (Crawford). Such an objection, however, would not have been well taken, and thus does not support a claim of ineffective assistance of counsel.
The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” In Crawford, supra, 541 U.S. at pages 53-54, the United States Supreme Court held that the confrontation clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” As the court in Crawford explained, the Confrontation Clause “applies to ‘witnesses’ against the accused—in other words, those who ‘bear testimony.’ [Citation.] ‘Testimony,’ in turn, is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ [Citation.] An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement.” (Id. at p. 51.) Contrary to the premise of defendant’s argument, no out-of-court testimonial statement was admitted into evidence. Cruz did not testify to the content of the information he received from Peters. He certainly did not testify that Peters identified defendant as a participant in the crime. Although Cruz testified that the information he obtained from Peters eventually led to defendant’s arrest, that fact is not testimonial and did not disclose the content of Peters’ statements. Cruz’s testimony that Peters gave the officers information did not convey a testimonial statement for purposes of the Sixth Amendment.
II. Sentencing
Defendant was sentenced to a term of life without the possibility of parole for his conviction for first degree murder. In addition, the court imposed a concurrent three-year term for the infliction of great bodily injury pursuant to section 12022.7 and a concurrent term of 25 years to life based on the section 12022.53 enhancement allegation that defendant discharged the firearm. The Attorney General asserts, and defendant does not dispute, that under section 12022.53, subdivision (f) the three-year enhancement should not have been imposed, and that under section 12022.53, subdivision (d) the additional life term should have been imposed consecutively rather than concurrently. We agree and order the abstract of judgment modified to reflect these changes.
Section 12022.53 provides in relevant part “(d) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 12034, personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life. [¶] . . . [¶] (f) . . . An enhancement for great bodily injury as defined in Section 12022.7, 12022.8, or 12022.9 shall not be imposed on a person in addition to an enhancement imposed pursuant to subdivision (d).”
Disposition
The judgment is affirmed. The abstract of judgment shall be modified to strike the three-year term imposed under section 12022.7 and to reflect that the additional life term imposed under section 122022.53 will run consecutively to the life term imposed on defendant’s first degree murder conviction.
We concur: Siggins, J., Jenkins, J.