Opinion
H029953
5-29-2007
THE PEOPLE, Plaintiff and Respondent, v. STEVEN DORELL WILSON, Defendant and Appellant.
NOT TO BE PUBLISHED
A jury convicted defendant Steven Dorell Wilson of one count of assault with a deadly weapon (Pen Code, § 245, subd. (a)(1)) and seven counts of first degree robbery (§§ 211, 212.5, subd. (a)) arising out of a home invasion robbery. Each of the robbery counts involved a different victim. The jury found true enhancement allegations that defendant had personally used a handgun in committing the robberies (§ 12022.53, subd. (b)). In a bifurcated proceeding, the court found true enhancement allegations that defendant had one prior conviction within the meaning of the Three Strikes Law (§§ 667, subds. (b)(i); 1170.12). Defendant was sentenced to 56 years in prison.
All further statutory references are to the Penal Code, unless otherwise stated.
On appeal, defendant contends the court abused its discretion when it admitted evidence regarding a shooting that occurred at the scene of the robbery shortly after the victims testified at the preliminary hearing and when it limited defendants cross-examination of two of the victims. Defendant asserts the prosecutor committed misconduct in various respects during closing argument. He argues that defense counsel was ineffective for failing to object to certain documentary evidence, for failing to request a limiting instruction regarding the evidence of the shooting, and for failing to object when the prosecutor argued the shooting proved identity in violation of the courts order. Defendant contends the court erred when it failed to stay the sentence on the assault with a deadly weapon under section 654 and that there was cumulative error that requires reversal. We find no prejudicial error and affirm.
FACTS
I. Prosecution Case
A. Events Before Robberies
In January 2005, David Lang, age 21, and his brother, Brian Lang, age 19, lived at home with their parents and older brother, Dan Lang. On January 22, 2005, David and Brian were socializing with a group of friends at home. Mr. and Mrs. Lang and Dan were out of town. Some of the people at the Lang house were smoking marijuana; others, some of whom were under age, were drinking alcohol.
For ease of reference, and not out of any disrespect, we shall hereafter refer to the Lang brothers by their first names.
Davids girlfriend, Lindsay Koren, came over at about 10:00 p.m. with three of her girlfriends. Earlier, she had invited David to go out to a club with them. After she arrived, he declined because there were too many people at the house and he felt he had to stay and watch over things. As Lindsay and her friends were leaving, she saw a man that fit defendants general description by the wrought iron gates to the driveway. He asked her how old she was, whether she was going to any parties, and if he could come in. At trial, Lindsay was not sure defendant was the man she saw at the gates.
David positively identified defendant as the man at the gates. When defendant came up to the gates, which were partially open, most of the Langs guests were in the front yard. Defendant took a couple of steps onto the driveway and said he had drinks, "weed," and girls; he asked whether he could party with David and his friends. David had never seen defendant before. David said "No, I dont even know you" and started to close the gates, gently nudging defendant off the property. Defendant walked backwards towards the sidewalk. Defendant remained by the gates; David told his guests to go inside the house. Defendant called one of Davids friends, Miguel Wooten, by name. After Wooten spoke with defendant, defendant again asked David to let him in. David said "no" and told Wooten to come into the house.
B. Events During Robberies
After they went inside, everyone congregated in Bryans bedroom, which was near the front doors of the house. Bryans girlfriend, Bridget Martinez, and her friend, Reyna Torres, arrived around 11:00 or 11:30 p.m. As they entered, four men with guns followed the young women into the house. The gunmen ordered everyone to get down on the floor. One of the gunmen was larger than the others. He was about six feet two or three inches tall and weighed 220 to 240 pounds. He carried a chrome or silver handgun, appeared to be older than the others, and was giving orders (we shall hereafter refer to this gunman as the "older man").
When the gunmen ordered everyone to get down, several of the young people assumed it was some kind of joke. David stood up and the older man hit him with the butt of a .45 caliber pistol on the left side of the head, opening up a deep gash. The gunmen asked, "Whos David?" and pulled David out of the room first.
Alex Guerrero, Luis Murillo, Bridget Martinez, Reyna Torres, Tim Johnson, Brandon Everly, Miguel Wooten, and Bryan remained in Bryans room. The gunmen had the people who were in Bryans room come out into the hallway one by one, with their hands behind their heads, on their knees. The gunmen had the victims lay on the floor on their stomachs or lean up against a wall and ordered them to empty their pockets. The gunmen took wallets, purses, keys, cell phones, cigarettes, money, and jewelry. Some of the victims recalled the robbers placing the items in a black bag. The gunmen then ordered the victims to go inside the hall bathroom. According to Guerrero and Bryan, defendant was one of the gunmen robbing the people in the hallway. After all of the victims were in the bathroom, one of the gunmen other than defendant stood guard outside the bathroom with his gun drawn.
The gunmen took David into his parents bedroom and started asking for "coke" and "crys." When he told them he did not have any drugs, they asked for money and jewelry. David did not tell the gunmen where anything was, which "piss[ed] them off." Later, they took Bryan out of the bathroom, hit him with a gun, and took him to the master bedroom. The older man told David that if he did not open a safe in the master bedroom, they were going to kill Bryan. The gunmen ransacked the Langs master bedroom. They found a .30/30 replica antique rifle Davids father kept under the bed.
The gunmen led David and Bryan to the living room, where the older man stole Davids neck chain, cell phone, and wallet. Some of the people in the bathroom saw David crawling away from the master bedroom covered in blood. The gunmen took David into the kitchen and laundry room, where defendant switched places with the older man. Defendant gave the older man a lock box he had gotten out of Davids room and the older man left through the front door. Defendant led David down three steps into Davids room, which was in a converted garage. As they walked down the steps, defendant struck David on the right side of the head with the butt of his gun. David started to bleed from that side of his head. He stumbled down the steps and fell against a motorcycle he kept in his room, knocking the motorcycle over. One of the other gunmen walked Bryan into the room and had him sit on Davids bed. Defendant pointed his gun at David and told him to open the gun safe in his room.
David was angry. He began entering the combination to the safe, made a fist, and started swinging at defendant. He punched defendant. Defendant walked backward, stumbled over some things, and ran out an exterior door that led to the carport. David chased defendant off the property. However, David was bleeding so badly, he could not keep up with defendant. He ran by a bar near his home and asked the owner to call 911.
According to David, he returned to his room and rushed the gunman who was guarding Bryan. He punched him in the face and shoved him into a dresser. Bryan joined in. The gunman dropped the bag that held the victims belongings and started running. David started to feel lightheaded; he saw Bryan chase the gunman out of the house. According to Bryan, the second gunman grabbed the lock box and ran out the door while David was punching defendant.
Meanwhile, the gunman who was guarding the bathroom disappeared. After several minutes, the people inside the bathroom realized he was gone and decided to come out. When the police arrived, the officers did not know whether there were any gunmen left in the house. David gave the officers his friends names and the police called them out one by one. Not knowing whether an individual was a victim or a suspect, the officers handcuffed each of the victims and had them wait on a curb while they cleared the house.
C. Post-Robbery Investigation
David was taken by ambulance to a hospital. His parents rushed home that night. David was released a few hours later. While Davids mother was straightening up his room, she found a court document with defendants name on it near Davids motorcycle. The document was a minute order from a court appearance defendant had made in criminal court a few days before the robbery. Attached to the minute order was a referral to the public defenders office. No one in the household recognized defendants name. Mrs. Lang gave the paperwork to the police immediately.
Based on information on the minute order, Detective Ramon Avalos prepared a photo line-up that included defendants photo. Guerrero, who had previously told the police that he did not get a good look at anyone and that he could not describe the perpetrators because he was too scared to look at them, identified defendant from the photo line-up.
D. Preliminary Hearing and Shooting
Several of the victims testified at defendants preliminary hearing. At that time, defendant was the only suspect who had been identified.
Three or four days after the preliminary hearing, there was a shooting at the Lang residence. An unknown gunman shot at the portion of the residence where Davids room was located at approximately 2:00 a.m. Several bullets penetrated the exterior wall and entered Davids room and Dans room, which was located behind Davids room. At trial, the parties stipulated that defendant was in custody when the shooting occurred. Several witnesses testified that they were aware of the shooting and that they knew three of the gunmen were still at large. They testified they were scared and knowledge of the shooting affected their willingness to testify.
E. Testimony Regarding Identity
At trial, Guerrero, Bryan, and David positively identified defendant as one of the gunmen. Everly identified defendant as one of the gunmen at the preliminary hearing. At trial, he said he saw one of the gunmen in the courtroom, but did not want to identify him. He had been in jail before and was afraid of being labeled a "snitch." He knew about the shooting incident at the Lang home and was afraid because one of the gunmen knew his name. Martinez identified defendant as the man outside the gate, but was not sure whether he was one of the men that came inside the house.
II. Defense Case
Defendant did not testify. On cross-examination, he brought out the fact that most of the witnesses had been drinking or smoking marijuana on the date of the incident. Guerrero and Bryan also testified that they had been charged with felonies and faced possible prison time. Defendant argued the witnesses were "a bunch of criminals" and "bums" who had given different versions of the events and had no compunction about lying.
DISCUSSION
I. Admission of Evidence Regarding Shooting at Lang Residence
Defendant contends the court abused its discretion when it admitted evidence regarding the shooting that occurred at the Lang residence four days after the preliminary hearing.
A. Facts and Procedural History
The prosecution moved in limine to introduce evidence regarding the shooting, arguing that it was admissible with regard to both the identification of defendant and to "explain the reluctance, possibly even impeachment, of some witnesses to testify against the Defendant at trial."
The prosecutor argued some of the witnesses were reluctant to come forward, had not been cooperative with the police, and had expressed concerns for their safety at the preliminary hearing. After the shooting, several witnesses told the prosecutor they would not testify. The prosecution had to subpoena the witnesses and talk to many of them about the consequences of not honoring the subpoena. He argued the evidence was relevant on the question of credibility because it showed the witnesses attitudes toward the case. Defendant argued the evidence was not admissible to prove identity because there was no evidence linking defendant to the shooting, the witnesses attitude toward law enforcement was poor before the shooting, and the evidence was highly prejudicial.
The court held that the evidence was not admissible on the issue of identity, since defendant was in custody when the shooting occurred and there was no evidence linking him to the shooting. However, the court found the evidence was admissible on the issue of the witnesses bias and their attitudes toward testifying. The court concluded that the evidence was relevant to the credibility of those witnesses who would testify that the shooting had some effect on them. The court found that probative value of this evidence outweighed its prejudicial effect. The court advised counsel that it intended to admonish the jury regarding the limited purpose of this evidence.
Evidence regarding the shooting was first presented to the jury through the testimony of Guerrero. Guerrero testified that he had identified defendant at the preliminary hearing. He told the jury he went to the Lang home about three days later and learned of the shooting. Defendant objected on the grounds of hearsay and asked for a limiting instruction. The court advised the jurors that what Guerrero had said "is not being offered for the truth that the house was shot, its being offered to show the effect, if any, that it had on his state of mind. . . ." Guerrero then testified regarding the location of the bullet holes and the time of the shooting and told the jury it had occurred shortly after David testified at the preliminary hearing. Guerrero told the jurors the shooting frightened him to the extent that he did not want to testify anymore and had to be subpoenaed to appear at trial. At trial, Guerrero identified defendant as one of the gunmen.
The prosecution also elicited testimony from Mrs. Lang and Bryan regarding the shooting incident. Mrs. Lang said the shooting upset her and she was concerned for her own safety and her sons safety. Bryan said the shooting scared him and affected his state of mind with regard to testifying at trial. Bryan also identified defendant as one of the gunmen. Defense counsel did not object to this testimony or ask for a limiting instruction.
Johnson testified that he was aware of the shooting. Defense counsel objected on the grounds of hearsay and requested a limiting instruction. The court told the jury to "remember that whatever someone told him about that, if thats the case, its not being offered for the truth of what was said, but only as to how it might affect his mind being told that it happened." Johnson then testified that although news of the shooting scared him, it did not affect his willingness to testify or cooperate with the police. However, he told the jury he was concerned for his familys safety. He testified that he did not see anyone in the courtroom that looked similar to the persons involved in the robbery.
Everly, Martinez, Murillo, and David also testified about the shooting. Everly told the jury that he was afraid to testify at the preliminary hearing, that he identified defendant at the preliminary hearing, that he was aware of the shooting, that he did not want to testify at trial, and that he feared being considered a snitch if he testified at trial. He told the jurors he saw one of the gunmen in court but did not want to identify him. Martinez told the jurors that she was aware of the shooting, that since the shooting she does not go to the Lang house anymore, and that she would not have testified at trial if she had not been subpoenaed. Murillo was also aware of the shooting and described the location of the bullet holes. He told the jurors that it did not make him afraid to testify. However, he did not identify defendant in court. David testified in detail regarding the shooting, the number of bullets, where the bullets landed, and what he did in response to the shooting. He said it scared him and made him mad. He thought the shooting was related to his testimony at the preliminary hearing. Defense counsel did not object to any of this testimony or request further limiting instructions.
When instructing the jury, the court gave CALJIC No. 2.09, the standard instruction regarding evidence that has been admitted for a limited purpose, and CALJIC No. 2.20, the standard instruction on factors the jury may consider in assessing a witnesss credibility, which include "the existence or nonexistence of a bias, interest, or other motive" and "[t]he attitude of the witness toward this action or toward the giving of testimony."
The jury was instructed with CALJIC No. 2.09 as follows: "Certain evidence was admitted for a limited purpose. [¶] At the time this evidence was admitted you were instructed that it could not be considered by you for any purpose other than the limited purpose for which it was admitted. [¶] Do not consider this evidence for any purpose except the limited purpose for which it was admitted."
B. Analysis
Evidence Code section 352 gives the trial court the discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Appellate courts apply "the abuse of discretion standard of review to any ruling . . . on the admissibility of evidence, including one that turns on the relative probativeness and prejudice of the evidence. . . ." (People v. Waidla (2000) 22 Cal.4th 690, 724 (Waidla).) "This standard is particularly appropriate when . . . the trial courts determination of admissibility involved questions of relevance, . . . , and undue prejudice. [Citation.] Under this standard, a trial courts ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Guerra (2006) 37 Cal.4th 1067, 1113 (Guerra).)
Defendant contends the prejudicial effect of the evidence regarding the shooting outweighed its "minimal" probative value as a tool to help the jury evaluate the testimony of the robbery victims. He argues this evidence had no bearing on the substantive issues in this case, since it went to the witnesses credibility, and argues it was designed to evoke an unfavorable emotional bias in the jury. He asserts the inevitable conclusion from the evidence is that the shooting was an effort by defendant and others to discourage the witnesses from testifying.
"Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. [Citations, including Evid. Code, § 780.] An explanation of the basis for the witnesss fear is likewise relevant to [his or ] her credibility and is well within the discretion of the trial court." (People v. Burgener (2003) 29 Cal.4th 833, 869 (Burgener).) Moreover, "it is not necessary to show the witnesss fear of retaliation is `directly linked to the defendant for the threat to be admissible. [Citation.] It is not necessarily the source of the threat—but its existence—that is relevant to the witnesss credibility." (Id. at pp. 869-870.)
Defendant contends that a reasonable juror would conclude this was evidence of a further crime by defendant, that the evidence must be deemed prejudicial because it is evidence of uncharged criminal conduct, and that the jury would tend to associate defendant with the shooting and punish him for it by finding him guilty of the robberies. As we noted above, the parties stipulated that defendant was in custody at the time of the shooting and there was no evidence or argument that defendant ordered the shooting. Evidence of uncharged criminal conduct is inadmissible under Evidence Code section 1101 when offered to prove a defendants conduct on a specific occasion. However, nothing in section 1101 affects the admissibility of evidence offered to support or attack a witnesss credibility. (Evid. Code, § 1101, subd. (c).) Moreover, as the court stated in Burgener, it was not necessary to show that the shooting evidence was directly linked to defendant for this evidence to be admissible on the issue of the witnesses credibility. (Burgener, supra, 29 Cal.4th at pp. 869-870.)
Defendant argues the prejudice was enhanced because the shooting was similar to the conduct for which defendant was on trial. We are not persuaded. Defendant was charged with seven counts of armed robbery and one count of assault with a deadly weapon, the butt of a gun. He was not charged with shooting at a dwelling house. Although they each involve the use of a firearm, these crimes are different from one another.
Defendant contends the evidence was cumulative, since many of the witnesses had expressed a reluctance to assist law enforcement and testify before the shooting occurred. Some of the witnesses testified they were reluctant to cooperate with the police during the initial investigation because they had previously had negative experiences with the police or because the officers treated them like criminals after the robberies. Some of the witnesses admitted they did not want to testify at the preliminary hearing. As outlined above, most of the witnesses testified that they were scared or concerned for their families safety after they heard of the shooting. Some of the witnesses said they would not have testified at trial, except for the fact that they had been subpoenaed and the prosecutor had warned them of the consequences of disobeying the subpoena. At least one witness, Everly, changed his testimony after the preliminary hearing. Although he admitted he had identified defendant as one of the robbers at the preliminary hearing, he refused to identify him and did not even want to look at him at trial. In our view, evidence about the shooting was not cumulative, since it provided additional but different information to explain the witnesses attitudes toward the case and testifying than what was known at the time of the preliminary hearing.
Defendant asserts the testimony of the witnesses did not show their fear had prevented them from testifying as fully as they could. As noted before, Everly changed his testimony and refused to identify defendant after the shooting incident. Neither Murillo nor Johnson identified defendant at trial. Torres, who had identified defendant at the preliminary hearing, failed to appear at trial because she was afraid to testify. Thus, we are not persuaded there is a factual basis for defendants contention.
For these reasons, we conclude the trial court did not abuse its discretion when it concluded the probative value of the shooting evidence outweighed its prejudicial effect. Moreover, the court instructed the jury that the shooting evidence was being admitted for a limited purpose when Guerrero, the first witness who described the shooting, testified and again during Johnsons testimony. In addition, the court instructed the jury not to consider this evidence for any purpose other than the limited purpose for which it had been admitted. We presume jurors follow the courts limiting instructions (Guerra, supra, 37 Cal.4th at p. 1115) and defendant has not rebutted that presumption. Inasmuch as the jury was promptly and correctly instructed regarding the limited purpose of the evidence, we cannot say that the trial court abused its discretion under Evidence Code section 352 in admitting this evidence. (Burgener, supra, 20 Cal.4th at p. 870.)
II. Order Limiting Cross-examination of Bryan and Guerrero
Defendant contends the court abused its discretion and violated his Sixth Amendment right to confront the witnesses against him when it improperly limited his cross-examination of Guerrero and Bryan.
Guerrero and Bryan were charged with robbery arising out events that occurred on January 5, 2005, approximately two and one half weeks before the robberies at the Lang home. During trial, defense counsel asked the court for permission to question Guerrero and Bryan about the pending robbery charges. The court observed that they were only charges and not convictions. The court ruled that defense counsel could elicit evidence that Guerrero and Bryan faced felony charges that could result in a prison sentence, but that he could not advise the jury that they were charged with robbery. The court was concerned with the potential prejudice in allowing the defense to suggest that "one robber robbing another robber isnt worthy of punishment." The court allowed the evidence in not because robbery is a crime of moral turpitude, but because the charges were pending in the same county where defendant was being tried. The court observed that Guerrero and Bryan may believe that if defendant is convicted, things may go better for them in their cases.
Defendant contends he had two grounds for impeaching Guerrero and Bryan: (1) these witnesses had a motive to lie if they believed that by helping to convict defendant they would receive favorable treatment on their pending robbery charges; and (2) their testimony was untrustworthy because they had committed crimes of moral turpitude. He argues the courts ruling, while permitting him to present the first type of impeachment evidence, denied him the opportunity to present the second type of impeachment evidence because the jury was not advised of the nature of the felony charges against Guerrero and Bryan.
In determining the credibility of a witness, the jury may consider any matter that has a tendency in reason to prove or disprove the truthfulness of the witnesss testimony, including but not limited to: a witnesss character for honesty or veracity or their opposites; the existence or nonexistence of a bias, interest, or other motive; the witnesss attitude toward the action in which he or she testifies or toward the giving of testimony; and any admission of untruthfulness. (Evid. Code, § 780.) "Past criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness in a criminal proceeding is admissible to impeach, subject to the courts discretion under Evidence Code section 352." (People v. Harris (2005) 37 Cal.4th 310, 337.) Robbery is a crime of moral turpitude. (In re Paguirigan (2001) 25 Cal.4th 1, 5.)
Prior to 1982, felony convictions were the only form of conduct evidence admissible to impeach the credibility of a witness, subject to Evidence Code section 352. (People v. Wheeler (1992) 4 Cal.4th 284, 296-297 (Wheeler) superseded by statute as stated in People v. Duran (2002) 97 Cal.App.4th 1448, 1460 (Duran).) In Wheeler, the court concluded that the "Truth-in-Evidence" amendment to the Constitution (Cal. Const., art. I, § 28, subd. (d) (hereafter section 28(d)) abrogated the felony-convictions-only rule in criminal cases and gave criminal courts broad discretion to admit or exclude acts of dishonesty or moral turpitude relevant to impeachment. The court observed, "section 28(d) makes immoral conduct admissible for impeachment whether or not it produced any conviction, felony or misdemeanor." (Wheeler, at p. 297, fn. 7.) The court held, however, that the fact of conviction of a misdemeanor remains inadmissible under traditional hearsay rules when offered to prove that the witness committed misconduct bearing on his or her truthfulness. (Id. at pp. 288, 297-300.) The court explained, "[I]mpeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value." (Id. at pp. 296-297, fn. omitted.) "Thus, impeaching misconduct now may, and sometimes must, be proven by direct evidence of the acts committed. These acts might not even constitute criminal offenses. Under such circumstances, fairness, efficiency, and moral turpitude become more complicated issues. Courts may take these facts into account when deciding under Evidence Code section 352 whether to admit evidence other than felony convictions for impeachment." (Id. at p. 297, fn. 7.) Subsequent to the courts ruling in Wheeler, the legislature enacted Evidence Code section 452.5, which provides the type of hearsay exception contemplated in Wheeler and provides that certified court records are admissible to prove the fact of conviction and the commission of the underlying offense. (Duran, supra, 97 Cal.App.4th at p. 1460-1461.)
As noted before, we apply "the abuse of discretion standard of review to any ruling . . . on the admissibility of evidence, including one that turns on the relative probativeness and prejudice of the evidence. . . ." (Waidla, supra, 22 Cal.4th at p. 724.)
In this case, the court carefully weighed the admissibility of the evidence that Guerrero and Bryan had been charged with robbery. The court noted that they had only been charged with the offenses and had not been convicted. The court admitted evidence that Guerrero and Bryan had been charged with felonies and faced possible prison sentences. However, the court concluded that the potential prejudice in allowing the defense to suggest that "one robber robbing another robber isnt worthy of punishment" outweighed the probative value of admitting evidence that Guerrero and Bryan were charged with robbery. The court was not presented with any evidence regarding the underlying facts or circumstances surrounding the robbery. The record does not contain any information regarding the conduct underlying the charges. The jury learned that Mrs. Lang spent $5,000 to post bail for Bryan, that Bryan had been arrested a second time on felony charges about a week before trial, that those charges were subsequently dropped, and that Bryan hoped those charges would not come back because of his testimony in this case. Under the circumstances of this case, we cannot say the court abused its discretion when it excluded evidence that Guerrero and Bryan were charged with robbery.
III. Prosecutorial Misconduct
Defendant contends the prosecutor committed prejudicial misconduct in four ways during closing argument. He asserts it was misconduct for the prosecutor: (1) to argue, in violation of a court order, that the shooting at the Lang residence proved defendant was one of the gunmen; (2) to argue that David was not a violent young man, when there was no evidence to support the argument; (3) to vouch for Davids veracity based on facts not in evidence; and (4) to refer to matters outside the record to suggest that defendant had a criminal history.
The Attorney General contends defendant forfeited any claim of prosecutorial misconduct by failing to object and request an admonition in the trial court. He agrees that the prosecutor violated a court order when he argued that the evidence regarding the shooting proved defendant was one of the robbers and that the prosecutor improperly vouched for Davids veracity. However, he argues that any misconduct was harmless or was cured by the jury instructions. Defendant asserts there was no forfeiture because it would have been futile to object. We begin by addressing the forfeiture issue.
A. Forfeiture
"As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety." (People v. Samayoa (1997) 15 Cal.4th 795, 841; see also, e.g., People v. Farnam (2002) 28 Cal.4th 107, 167; People v. Stewart (2004) 33 Cal.4th 425, 502-503.)
There is an exception to the general rule of forfeiture, however, which applies in the case of futility, incurability, or impracticability. (People v. Hill (1998) 17 Cal.4th 800, 820-821 (Hill).) "A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. In addition, failure to request the jury be admonished does not forfeit the issue for appeal if an admonition would not have cured the harm caused by the misconduct. Finally, the absence of a request for a curative admonition does not forfeit the issue for appeal if the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request." (Ibid., internal quotation marks and citations omitted; see also, e.g., People v. Estrada (1998) 63 Cal.App.4th 1090, 1099 (Estrada) [curative admonition inadequate where the misconduct was "constant and pervasive"].)
Defense counsel did not object to any of the argument that defendant relies on as the basis for his claim of prosecutorial misconduct, nor did he ask the court to admonish the jury to disregard the argument. Defendant asserts that it would have been futile to object, but does not provide us with any reasoned argument or explanation on that point. He has therefore forfeited his claims of prosecutorial misconduct.
However, defendant also argues that his counsel was ineffective for failing to object when the prosecutor argued that the shooting incident was relevant on the question of identity and proved defendant was one of the robbers. Defendants alternative claim of ineffectiveness of counsel persuades us that we should reach the merits as to that contention. (People v. DeJesus (1995) 38 Cal.App.4th 1, 27, citing People v. Martin (1995) 32 Cal.App.4th 656, 661.) To forestall subsequent claims of ineffectiveness of counsel, we shall also reach the merits on the other grounds defendant raised as bases for his prosecutorial misconduct claim.
B. General Principles Regarding Prosecutorial Misconduct
"Prosecutorial misconduct implies a deceptive or reprehensible method of persuading the court or jury." (People v. Price (1991) 1 Cal.4th 324, 448, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1165.) Although prosecutors are given "wide latitude" in arguing their cases, they nevertheless "are held to an elevated standard of conduct." (Hill, supra, 17 Cal.4th at p. 819.) The imposition of this higher standard is justified by their "unique function ... in representing the interests, and in exercising the sovereign power, of the state." (Id. at p. 820.)
To warrant reversal, the challenged conduct must be prejudicial. "What is crucial to a claim of prosecutorial misconduct is . . . the potential injury to the defendant." (People v. Benson (1990) 52 Cal.3d 754, 793.) When the claim "focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Samayoa, supra, 15 Cal.4th at p. 841; see also, e.g., People v. Smithey (1999) 20 Cal.4th 936, 960.) To answer that question, we examine the prosecutors statement in the context of the whole record, including arguments and instructions. (Hill, supra, 17 Cal.4th at p. 832; People v. Morales (2001) 25 Cal.4th 34, 44.) "In conducting this inquiry, we `do not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutors statements." (People v. Frye (1998) 18 Cal.4th 894, 970; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 647.)
As a matter of federal constitutional law, a prosecutors behavior constitutes prejudicial misconduct when it is "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." (Hill, supra, 17 Cal.4th at p. 819, internal quotation marks and citations omitted.) Thus, for example, federal constitutional error may be found where a pervasive pattern of misconduct "threatened defendants right to a fair trial." (Id. at p. 838.) By contrast, there would be "no error of constitutional dimension" where, for example, "inaccuracies in the [prosecution] witnesss testimony were not material errors `in the sense that [their] suppression undermines confidence in the outcome of the trial. " (People v. Padilla (1995) 11 Cal.4th 891, 929, overruled on other grounds in Hill, supra, 17 Cal.4th at p. 823, fn. 1.)
The applicable standard of appellate review for assessing prejudice depends on whether the misconduct amounts to federal constitutional error. If it does, we apply the Chapman standard and decide whether the error is harmless beyond a reasonable doubt. (See Estrada, supra, 63 Cal.App.4th at pp. 1106-1107, citing Chapman v. California (1967) 386 U.S. 18, 24.) If the error does not rise to that level, we apply our state constitutions Watson standard to determine if there is a reasonable probability of a different result. (See People v. Espinoza (1992) 3 Cal.4th 806, 820-821, citing People v. Watson (1956) 46 Cal.2d 818, 835.) Under that standard, "a miscarriage of justice has occurred when the case is closely balanced and the acts of misconduct are such as to have contributed materially to the verdict." (People v. Wagner (1975) 13 Cal.3d 612, 621.) We shall evaluate each of defendants grounds for claiming prosecutorial misconduct.
C. Analysis
1. Violation of In Limine Ruling Regarding Evidence of Shooting
In limine, the court ruled that evidence regarding the shooting was not admissible to prove defendants identity but was admissible to show the effect the shooting had on the state of mind of the witnesses and their attitudes toward testifying at trial. Notwithstanding this ruling, the prosecutor argued, in his closing argument: "Now, you have to believe that those four individuals who are Scott free because they got the wrong guy, . . . , theyd be laughing in their shoes, . . . . [¶] . . . You think theyre going to want to go back to that house and shoot it up because they got the wrong guy? No. They shot up that house because we got the right guy. `Cause they know that if Mr. Wilson goes down on this and hes convicted, he might want to talk. So they have a vested interest to make sure that the witnesses in this case are so scared they dont come to court. `And by the way, if we accidentally kill David along the way while we are trying to intimidate these witnesses, sobeit [sic]. . . ."
The Attorney General correctly concedes the prosecutor committed misconduct when he violated the trial courts ruling limiting the use of the evidence regarding the shooting. However, he argues that the error was not prejudicial. He contends the error was harmless because the jury could not have failed to convict defendant if the argument had not been made, since the evidence of identity was strong. We agree.
Mrs. Lang found court papers bearing defendants name and a unique identifying number that was assigned to him when he was arrested for the prior matter in Davids room, in the area where defendant struggled with David before fleeing. No one recognized the name on the court papers. Although defendant suggested the evidence had been planted or that he was framed, there was no evidence supporting that conclusion. Guerrero, who had seen defendant both outside and inside the house, positively identified defendant from the photo line-up. Guerrero had never seen defendant before the night of the crime and began trembling when he saw defendants photo. Moreover, none of the photographs used in the photo line-up contained any names. Although some of the witnesses were unable to identify defendant, Guerrero, David, and Bryan identified him both as the man they saw at the gate and as one of the gunmen. Martinez also identified him as the man she saw at the gate. Everly, who had identified him at the preliminary hearing, said he saw one of the gunmen at trial, but refused to identify that person. Although there was conflicting evidence on the identity issue, this case was not so closely balanced that the prosecutors acts of misconduct contributed materially to the verdict. (People v. Wagner, supra, 13 Cal.3d at p. 621.) We therefore conclude there was no reasonable probability of a different result on the issue of identity and the prosecutors misconduct in using evidence regarding the shooting to argue identity was not prejudicial.
2. Argument That David Was Not Violent
Unlike the other victims, who testified that they were afraid of the intruders, David testified that he was angry that the gunmen had hit Bryan; that as he crawled from his parents room to his room, he thought about revenge; that rage was building inside him and he was thinking about revenge shortly before he struck defendant; and that after they found defendants court papers, he got madder and wanted more revenge.
In his opening argument, the prosecutor stated that while David was being beaten up, "[h]es biding his time and hes thinking to himself, `Im going to wait for my opportunity. I think his words was [sic] rage, revenge, . . . . Everybody else in that house was . . . thinking of . . . fear . . . . And this kid was thinking `Ill wait for my chance. Ill wait till my chance, rage, revenge. [¶] Hes not a violent child ... child. Hes not a violent young adult. But he did what he felt like he had to do."
Defendant contends the prosecutor committed misconduct when he argued that David was not a violent person, because there was no evidence in the record to support the argument. The Attorney General argues the statement that David was not violent was a permissible inference, given the absence of evidence that David was violent. He also contends that if the argument was impermissible, it was a harmless misstatement because it was brief, isolated and trivial.
Prosecutors "have wide latitude to discuss and draw inferences from the evidence at trial," and whether "the inferences the prosecutor draws are reasonable is for the jury to decide." (People v. Dennis (1998) 17 Cal.4th 468, 522.) However, a prosecutor commits misconduct by referring to facts that were not in evidence in closing argument. As the court explained in Hill, supra, 17 Cal.4th 800, "such practice is clearly . . . misconduct, because such statements tend[] to make the prosecutor his [or her] own witness—offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, although worthless as a matter of law, can be dynamite to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence. Statements of supposed facts not in evidence . . . are a highly prejudicial form of misconduct, and a frequent basis for reversal." (Id. at pp. 827-828, citations and internal quotation marks omitted; see e.g., People v. Hall (2000) 82 Cal.App.4th 813, 817 [reversible error for prosecutor to tell jury that testimony of officer who was not called as a witness would have been the same as officer who testified]; People v. Gaines (1997) 54 Cal.App.4th 821, 825 [misconduct for prosecutor to argue that defense had secured alibi witnesss absence, that prosecution tried to find witness, and that witness, if called, would have impeached defendant].)
Unlike some of the other witnesses, who had testified to previous arrests or incarceration, there was no evidence that David had ever been involved in criminal or violent conduct. On the night of the robberies, David decided to stay home and watch over the house, rather than go out with his girlfriend, because there were young people there who were drinking. This fact tended to portray him as a responsible young man. David had a gun safe in his room. He testified he purchased it for his father after he inherited some of his grandfathers guns. According to David, the family did not keep his grandfathers guns in the safe and stored them in a shed in the backyard. However, they did keep a .357 magnum and a shotgun in the gun safe, as well as papers, jewelry, money and other valuables. Davids father also kept guns hidden in the house. The intruders found a replica of a 30/30 Winchester rifle, which was not loaded, under the bed in the master bedroom. There was no evidence regarding Davids use of or experience with guns prior to the robberies. On this record, it was a permissible inference for the prosecutor to argue that David was not violent. Moreover, it was a brief, isolated reference that does not rise to the level of misconduct.
3. References to Facts Not in Evidence to Vouch for Davids Veracity
Defendant contends the prosecutor committed misconduct by referring to matters outside the record to vouch for Davids veracity. He complains of the following statements from the prosecutors opening argument:
"David, David Lang. Hes a pretty remarkable kid. Ive gotten to know David Lang ... over the course of the time that I have been assigned this case. I have to admit, the first time this file came to my office, it was just another file. . . . [¶] I read the police report and Im thinking Im reading fiction. I absolutely said, `No way this went down like this. Theres no way anybody bum rushes four armed gunmen in their house after they have been pistol-whipped and bleeding and fights them off. No way. " The prosecutor described how he met David at the preliminary hearing and argued, "And I meet the young man. And hes with his mother. And after talking to him and getting his side of the story, and looking in his eyes, I realized . . . everything that was in that report, is absolutely true."
As noted above, it is misconduct for a prosecutor to refer to facts not in evidence. " `A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. . . . However, so long as a prosecutors assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the "facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief," [his or] her comments cannot be characterized as improper vouching. " (People v. Dickey (2005) 35 Cal.4th 884, 913-914 (Dickey), citing People v. Frye, supra, 18 Cal.4th at p. 971.)
Here, the prosecutor attempted to bolster Davids veracity by referring to matters outside the record. He described his reactions when he first read the file and when he met with David at the preliminary hearing, facts that were not in evidence. He told the jury that after he looked into Davids eyes, he knew Davids story was true. Thus, he used both evidence outside the record and his personal assurance to argue Davids credibility. The Attorney General correctly concedes this was misconduct. He argues, however, that the misconduct was not prejudicial.
After making the statements defendant complains of, the prosecutor continued to argue Davids credibility. The prosecutor stated, "This warrior came in here and testified about what happened. Theres not one thing he said that wasnt true. Thats what happened that night. As unbelievable as it may sound, when I read the police report the day I was given this case back in February, and the day someone tried to kill this young man in his sleep in April, that became my priority." The court interrupted the argument, asked to see counsel at sidebar, and excused the jurors for a recess. When the jury returned, the court instructed the jurors as follows: "Ladies and Gentlemen, I want to remind you of one thing and that is this, remember that what the attorneys say is not evidence. And remember also, that to the extent that an attorney expresses a personal belief not based on the evidence, but based on the — in the truth or credibility of a witness, it is improper and is not to be considered by you. You are the sole judges of the credibility of the witness, and you will make your own determination of the credibility of each witness and the weight to be given their testimony." We presume the jury heeded the courts admonition and that any error was cured. (Dickey, supra, 35 Cal.4th at p. 914.)
4. Argument Suggesting Defendant Had a Criminal History
Defendant contends the prosecutor committed misconduct when he referred to matters outside the record to suggest defendant had a criminal history.
Prosecutor described defendants arrest on the instant charges, stating "defendant is picked up by San Jose, a unit with San Jose called the violent crimes enforcement task force team, and their job, among other things is to go out and arrest persons who have committed violent crimes. And the reason that Officer Avalos or Officer Lopez didnt just roll up and arrest them like you might see on TV is because when you go out and arrest someone, especially someone who has a history or you suspect is involved in violent crime, youre going to go out in force, youre going to go out with flak jackets on and youre going to go out and arrest them following a certain protocol and thats what happened in this case." Defendant complains of the prosecutors reference to "someone who has a history" and argues there was no evidence to support the prosecutors statement that defendant had a criminal history.
Detective Avalos testified that he obtained a warrant for defendants arrest and had the warrant enforced by the Violent Crime Enforcement Team. There was evidence that defendant had been arrested before and charged with at least one prior crime based on the minute order and referral to the public defenders office that Mrs. Lang found in Davids room, both of which were in evidence. Defendant was arrested in this case because he was suspected of committing multiple acts of armed robbery and an assault with a deadly weapon, which are violent crimes. Since there was evidence that defendant had been charged with a previous offense and that he had committed the violent crimes charged in this case, there was no misconduct related to this portion of the prosecutors argument. Moreover, the prosecutors argument refers to "someone who has a history or you suspect is involved in violent crime." (Italics added.) The use of the disjunctive term "or" suggests that defendant met one, not necessarily both of the conditions. The prosecutor also told the jury the task forces job was to arrest persons "who have committed violent crimes." Thus the focus of the argument was on the fact that defendant was charged with committing violent crimes and not the assertion that he had a prior criminal history. For these reasons, we conclude the prosecutor did not commit misconduct in this portion of his argument.
5. Cumulative Effect of the Misconduct
Defendant argues that even if, taken individually, the prosecutors arguments are not deemed prejudicial, the cumulative effect of the misconduct was that defendants identity defense would not be credited by the jury. As we have stated, the evidence of identity was strong. To summarize the discussion above, the prosecutor committed misconduct in only two of the four instances set forth by defendant, neither of which prejudiced the defense. We conclude the misconduct here was not so egregious that it infected the trial with such unfairness as to make the conviction a denial of due process under the federal standard or that it involved the use of deceptive or reprehensible methods that merit reversal under that state standard. (Hill, supra, 17 Cal.4th at p. 819.)
IV. Ineffective Assistance of Counsel
Defendant contends his trial counsel was ineffective: (1) when he failed to object to the introduction of the court papers Mrs. Lang found in Davids room to the extent they informed the jury that defendant was a criminal defendant in another case; (2) when he failed to request a limiting instruction to enforce the courts order regarding the limited purpose for which the evidence of the shooting was admitted; and (3) when he failed to object and request an admonition when the prosecution argued the shooting evidence proved identity.
A. General Principles and Standard of Review
"To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsels performance was deficient and that the deficient performance prejudiced the defense. [Citations.] Counsels performance was deficient if the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Prejudice exists where there is a reasonable probability that, but for counsels errors, the result of the proceeding would have been different." (People v. Benavides (2005) 35 Cal.4th 69, 92-93 (Benavides).)
"`Tactical errors are generally not deemed reversible; and counsels decision-making must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation...." [Citation.] Finally, prejudice must be affirmatively proved; the record must demonstrate "a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." " (People v. Hart (1999) 20 Cal.4th 546, 623-624.)
B. Analysis
1. Failure to Object to Introduction of Defendants Court Papers
Defendant concedes the minute order and instructions about contacting the public defender were relevant evidence that could be used to support the contention that defendant was one of the robbers, since Detective Avalos used the information in those documents to identify defendant. However, he contends the documents also contained evidence that defendant had been arrested and was a criminal defendant in another case. He argues that defense counsel made no effort to keep this damaging information from the jury, by attempting to redact the documents, exclude them under Evidence Code section 352, or enter into a stipulation with opposing counsel.
A claim of ineffective assistance of counsel based on a failure to object to inadmissible evidence will not usually succeed on direct appeal. "Because the decision whether to object is inherently tactical, the failure to object to evidence will seldom establish incompetence." (People v. Freeman (1994) 8 Cal.4th 450, 490-491.) Moreover, where trial counsels reasons for challenged decisions do not appear in the record, we will find counsel ineffective only if there is no conceivable reason for counsels acts or omissions. (People v. Weaver (2001) 26 Cal.4th 876, 926.)
Accordingly, under these principles, where the claim involves allegations that counsel was ineffective for failing to object to evidence, we must determine: (1) whether the evidence was admissible; (2), if not, whether there was any conceivable reason for counsels failure to object to it; and (3) if not, whether it was reasonably probable a more favorable result would have occurred had the evidence been excluded.
We begin by noting that counsel did object to the admissibility of this evidence. Defense counsel made a motion in limine to sanitize the minute order. The prosecutor stated that he did not object to sanitizing the document, indicating he intended to use it simply to show that it contained defendants name, a case number, and a PFN number (a unique number assigned to every individual who is arrested in Santa Clara County that is reused each time the person is arrested) which assisted police in identifying defendant. The court suggested the parties use a copy of the minute order and redact everything except defendants name and the PFN number. The prosecutor argued the way the document was folded was relevant. The attorneys agreed to work on a stipulation. Subsequently, the court admitted the original minute order and a copy of the minute order. Some of the text on the original minute order was obliterated by fingerprint testing that was done by the crime lab. Detective Avalos made a copy of the minute order before it was sent to the crime lab, with the text intact. The attorneys agreed to redact the minute order, removing the reference to the drug crime defendant was charged with prior to the robbery, which was visible on the copy but not the original. Defense counsel advised the court that he had no objection to admission of the minute order as redacted or the papers with the referral to the public defenders office.
The jury heard that Mrs. Lang found the court papers in Davids room, that no one in the family recognized the name on the papers, that the papers indicated that defendant had made an appearance in the criminal courts on January 19, 2005 (four days before the robbery), that minute orders with green ink, like the one in this case, are given to defendants who are not incarcerated, that the public defender referral form is given to indigent defendants who are referred to the public defenders office, that defendant was scheduled to make another court appearance on February 15, 2005, and that Detective Avalos used the name and PFN number on the minute order to identify defendant and create the photo line-up.
The Attorney General argues this evidence was admissible and that defense counsel was not incompetent for failing to pursue a futile objection. He contends the evidence was relevant to prove that defendants name was on the paper, and that the papers would not have been in Davids bedroom unless one of the robbers had left them there. He contends the prosecution had to rule out the possibility that someone who shared defendants name left the papers there and argues the unique PFN number foreclosed that possibility. He argues the PFN number was important because it allowed law enforcement to identify defendant and generate the photo line-up, which led to further evidence on the identity issue. He asserts the prosecutor also had to show why the number was unique to defendant. He argues the prosecutor had to show the circumstances under which defendant received the papers to prove the paper was given directly to defendant and was not a document he was likely to have given anyone else. He contends it was important for the jury to see the documents to establish they did not include a description of what defendant looked like. We agree the minute order and the referral to the public defender were admissible for these reasons. Moreover, defense counsel was successful in limiting the prejudicial information on the minute order by obtaining the prosecutors agreement to redact the information regarding the nature of the charge.
With regard to the contention that defense counsel should have entered into a stipulation with the prosecutor regarding the court papers, "[t]he circumstance that the defense might have preferred that the prosecution establish a particular fact by stipulation, rather than by live testimony, does not alter the probative value of such testimony or render it unduly prejudicial. The prosecution was not required to accept such a stipulation or other `sanitized method of presenting its case." (People v. Carter (2005) 36 Cal.4th 1114, 1169-1170.)
In our view, defense counsels performance was not deficient with regard to the admission of the court papers and defendants claim that counsel was ineffective fails on this ground.
2. Failure to Request a Limiting Instruction Regarding the Shooting Evidence
Defendant contends his counsel was ineffective when he failed to request a limiting instruction to enforce the courts order regarding the limited purpose for which the evidence of the shooting was admitted.
As we stated when addressing the admissibility of the evidence regarding the shooting, that evidence was admissible on the issue of witness credibility. The court admonished the jury twice, when Guerrero and Johnson testified, that evidence of the shooting was being admitted for a limited purpose, "to show the effect, if any, that it had on [the witnesss] state of mind" and not "for the truth of what was said, but only as to how it might affect his mind being told that it happened." The court instructed the jury with CALJIC No. 2.09, that they were not to consider "this evidence for any purpose except the limited purpose for which it was admitted," and CALJIC No. 2.20, the standard instruction on factors the jury may consider in assessing a witnesss credibility, which include "the existence or non-existence of a bias, interest, or other motive" and "[t]he attitude of the witness toward this action or toward the giving of testimony."
Defendant asserts counsel was deficient when he failed to request a limiting instruction advising the jury that they could not consider the shooting evidence as proof that defendant was one of the robbers and could only use it to evaluate the witnesses credibility. However, the court admonished the jurors twice that they could only consider the shooting evidence for the effect that it had on the witnesss state of mind and instructed the jury, after all the evidence was in, that it was only to consider this evidence for the limited purpose for which it was admitted. In light of these instructions, it was not necessary for the court to specifically instruct the jury not to consider this evidence on the question of identity. Consequently, trial counsels performance was not deficient for failing to request such an instruction.
Defendant also argues trial counsel was ineffective because he failed to request a limiting instruction or admonition when Bryan, David, Everly, Murillo, Martinez, and Mrs. Lang testified about the shooting. Although it may have been more effective for the court to remind the jurors of the limited purpose for admitting the evidence of the shooting each time a different witness was questioned about it, in our view counsels failure to request such an admonition each time a new witness testified did not fall below an objective standard of reasonableness under prevailing professional norms. (Benavides, supra, 35 Cal.4th at pp. 92-93.) The court admonished the jury about the limited purpose of this evidence twice and instructed the jury on this point at the conclusion of the case. As stated before, we presume the jury followed those instructions.
3. Failure to Object to Prosecutors Argument Regarding Shooting
Defendant contends his counsel was ineffective for failing to object and request an admonition when the prosecution argued the shooting evidence proved identity.
In People v. Carpenter (1997) 15 Cal.4th 312, 396, the defendant alleged his attorney was ineffective for failing to object to the prosecutors argument. The court held that "[d]eciding whether to object is inherently tactical, and the failure to object will seldom establish incompetence." This is especially true when the claims of prosecutorial misconduct lack merit. (Ibid.)
In this case, we have concluded that although the prosecutor committed misconduct in arguing that the shooting evidence proved identity, that act of misconduct did not prejudice defendant. We reasoned that because the evidence of identity was strong, there was no reasonable probability of a different result on the issue of identity. Even if we assume counsels performance was deficient when he failed to object to the prosecutors argument that the shooting proved identity, we conclude that the error did not prejudice defendant. To prevail on a claim of ineffective assistance of counsel, defendant must demonstrate "a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (People v. Hart, supra, 20 Cal.4th at p. 624, internal quotation marks omitted.) As discussed above, the evidence of identity linking defendant to the robberies was strong. It was based on the unique court documents defendant left at the scene, Guerreros positive identification of defendant from the photo line-up, and the positive, in-court identifications by three witnesses. In addition, one of the witnesses recognized defendant as the man who had come to the gate earlier that evening and one of the witnesses had identified him at the preliminary hearing. On this record, we cannot say there is a reasonable probability that but for counsels failure to object to the prosecutors argument that the shooting proved identity, the result of the proceeding would have been different.
For all these reasons, we conclude defense counsel was not ineffective in his representation of defendant.
V. Sentencing Error Under Section 654
Defendant contends the trial court erred when it failed to stay his sentence on count 2, the assault with a deadly weapon count.
In count 1, the prosecution charged defendant with "robbery in an inhabited building, . . . — first degree" (§§ 211, 212.5, subd. (a)) and alleged defendant took Davids personal property, including a cell phone. The prosecution alleged defendant personally used a handgun to commit the robbery (§ 12022.53, subd. (b)). The court designated count 1 the principal term and sentenced defendant to the midterm of eight years plus 10 years for the gun enhancement, for a total of 18 years on count 1.
In count 2, the prosecution charged defendant with assault with a deadly weapon, "a handgun used as a club" on David (§ 245, subd. (a)(1)). The court sentenced defendant to one third the midterm, or two years consecutive, on count 2. The court stated, "although this is the same victim in count 2 as in count 1, this occurred on a separate occasion within the meaning of the statute. It was at a later time, different time, different location, and I think the defendant had time to reflect between the acts, and thats why Im going with the consecutive term."
Defendant contends the court should have stayed the sentence on count 2 because the assault was not divisible from the robbery. He argues the robbers had not achieved their intent and objective when they took Davids personal belongings and that they intended to bully and beat David into revealing the location of valuables throughout the house. He contends there was no substantial evidence that justifies the conclusion that the assault was a severable act from the robbery. We disagree.
Section 654, subdivision (a) provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
"Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct." (People v. Deloza (1998) 18 Cal.4th 585, 591.) "If . . . a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed." (Id. at pp. 591-592.)
"Section 654 . . . prohibits multiple punishment if the defendant commits more than one act in violation of different statutes when the acts comprise an indivisible course of conduct having a single intent and objective. `If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. [Citation.] In such a case, the defendants single intent and objective are treated as a single act. For example, a defendant who enters a building with the intent to commit theft and then takes something of value cannot be sentenced for both burglary and theft. Although the defendant committed two criminal acts (entering the building and taking the property), the two acts `were parts of a continuous course of conduct and were motivated by one objective, theft; the burglary, although complete before the theft was committed, was incident to and a means of perpetrating the theft. " (In re Jose P. (2003) 106 Cal.App.4th 458, 469.)
"On the other hand, section 654 does not apply when the evidence discloses that a defendant entertained multiple criminal objectives independent of each other. In that case, `the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citations.] The principal inquiry in each case is whether the defendants criminal intent and objective were single or multiple. " (In re Jose P., supra, 106 Cal.App.4th at p. 469.) It is primarily a question of fact for the trial court, whose findings will be upheld on appeal if there is any substantial evidence to support them. (Ibid.; People v. Osband (1996) 13 Cal.4th 622, 730.)
"`A defendants criminal objective is `determined from all the circumstances.... " (In re Jose P., supra, 106 Cal.App.4th at p. 469 .) "[M]ultiple crimes are not one transaction where the defendant had a chance to reflect between offenses and each offense created a new risk of harm." (People v. Felix (2001) 92 Cal.App.4th 905, 915.)
In our view, there was substantial evidence that supported the trial courts conclusions that the robbery and the assault occurred at different times and at different locations and that defendant had multiple criminal intents and objectives.
Unless otherwise stated, the following sequence of events is based on Davids trial testimony. Shortly after the gunmen told everyone to get down, David, thinking it was a joke, stood up. The older man hit David on the left side of the head with the butt of a .45 caliber pistol. The gunmen knew Davids name and pulled him out of Bryans room first. The gunmen took David to his parents room and asked for drugs, money and jewelry. David did not tell them where anything was, so they ransacked the room. The older man made David crawl from his parents room to the living room. There, he turned David over, searched him, and took his neck chain, cell phone and wallet. The older man then led David into the kitchen, where he searched him again. The gunmen led David from the kitchen, through the laundry room, into his room. Defendant switched places with the older man in the laundry room. As they walked down the steps from the laundry room into Davids room, defendant struck David on the right side of the head with the butt of his gun, opening up a second gash on his head. David fell and knocked over his motorcycle. Defendant pointed the gun at him and told him to get up and open the safe. David pretended to open the safe, started swinging at defendant, and chased him out of the house.
This was substantial evidence that supported the courts finding that defendants criminal intent and objectives were multiple and that defendant had a chance to reflect between offenses, which supported the trial courts decision to punish the assault and robbery of David separately.
Moreover, several cases have held an act of gratuitous violence after a robbery has been committed is punishable separately. In People v. Hopkins (1975) 44 Cal.App.3d 669, the defendants were sentenced separately for robbery and for assault by means of force likely to produce great bodily injury when they hit the victim in the face with a salami after they had robbed her and were leaving the premises. The court found that the robbery and the final assaultive act were divisible transactions, even though " `closely connected in time and a part of the same criminal venture. " (Id. at p. 676.) In People v. Nguyen (1988) 204 Cal.App.3d 181, the defendant and an accomplice entered a market and forced the clerk into a bathroom. The accomplice took the clerks money and passport and forced him to lie on the floor while the defendant emptied the cash register. The accomplice then shot the clerk in the back. The court found that the shooting was sufficiently divisible from the robbery to justify multiple punishments. "This act constituted an example of gratuitous violence against a helpless and unresisting victim which has traditionally been viewed as not `incidental to robbery for purposes of Penal Code section 654." (Id. at p. 190.) The court explained: "Once robbers have neutralized any potential resistance by the victims, an assault or attempt to murder to facilitate a safe escape, evade prosecution, or for no reason at all, may be found by the trier of fact to have been done for an independent reason." (Id. at p. 191; see also People v. Nichols (1994) 29 Cal.App.4th 1651, 1657 [defendant had separate objectives: to rob the victim and to avoid detection and conviction by intimidating the victim].)
Here, there was substantial evidence to support the trial courts conclusion that the assault was a separate act of violence that was not necessary or incidental to the robbery. The older man had already struck David once, before robbing him, opening up a large gash on his head and causing significant blood loss. The robbery of David was completed in the living room. After robbing David, the gunmen led him from the living room to the kitchen, to the laundry room, to his own room. Defendant hit David a second time in his room in a gratuitous act of violence that was not necessary to complete the objective of robbing the individuals in the house. Moreover, there was evidence that David had forbidden defendant from joining the party earlier in the evening, which may have provided defendant with a reason for assaulting David.
For these reasons, we conclude there was substantial evidence to support the trial courts decision to punish the assault and the robbery in counts 1 and 2 separately.
VI. Cumulative Error
Defendant contends he is entitled to a reversal of the judgment based upon the cumulative effect of the multiple errors alleged on appeal. "A defendant is entitled to a fair trial, not a perfect one." (People v. Mincey (1992) 2 Cal.4th 408, 454.) When a defendant invokes the cumulative errors doctrine, "the litmus test is whether defendant received due process and a fair trial." (People v. Kronemyer (1987) 189 Cal.App.3d 314, 349.) Accordingly, any claim based on cumulative error must be assessed "to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence." (Ibid.)
Here, where the few errors in this case were harmless, defendant cannot establish that it is reasonably probable he would have a received a more favorable result in the absence of the errors. In other words, we are convinced that defendant "received due process and a fair trial." (People v. Kronemyer, supra, 189 Cal.App.3d at p. 349.)
DISPOSITION
The judgment is affirmed.
We concur:
Bamattre-Manoukian, Acting P.J.
Duffy, J.