People v. Simmons CA3 ( 2021 )

Filed 2/24/21 P. v. Simmons CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C089678
Plaintiff and Respondent, (Super. Ct. No. 16FE008671)
v.
THEO L. SIMMONS,
Defendant and Appellant.
A jury convicted defendant Theo L. Simmons of twice robbing a pharmacy with
his codefendant D.C., and found defendant used a firearm for the first robbery. On
appeal, defendant argues the trial court erroneously admitted a portion of his jail visit
conversation into evidence, in violation of Evidence Code section 356.1 He further
1 Undesignated statutory references are to the Evidence Code.
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argues that he received ineffective assistance of counsel because his attorney failed to
request an instruction on the lesser included enhancement of the personal use of a deadly
weapon other than a firearm. Defendant contends these errors taken together rendered his
trial fundamentally unfair under the Fourteenth Amendment. We affirm.
FACTUAL AND PROCEDURAL HISTORY
The First Robbery
One afternoon in December 2015, defendant and D.C. entered a pharmacy and
jumped over the pharmacy counter. Defendant thrust a gun into the pharmacy
technician’s side and pushed her around the pharmacy, demanding certain drugs. The
gun was silver, appeared to be metal, and looked real. Because the technician thought the
gun was real, she felt afraid. She gave defendant and D.C. the medicine and they left in a
waiting vehicle.
D.C. told law enforcement that defendant had used a small, silver semiautomatic
handgun during the robbery, which the driver of the getaway car had handed to defendant
prior to the robbery. Although D.C. did not touch the gun, hear it cocked, or see it
loaded, he believed defendant’s gun was real based on the size of the gun’s barrel and his
familiarity with real firearms and BB guns. It appeared to him to be a .25- or .22-caliber
handgun.
While discussing this case on a recorded jail phone call, a visitor asked defendant
if he had a gun, and defendant responded, “Yup.” Defendant’s firearms expert was
unable to tell from the surveillance footage of the robbery whether it was a real gun or a
fake gun, such as an airsoft, BB, or pellet gun. The detective also could not determine
whether the gun was real or fake from the footage. The pharmacist and pharmacist
technician said the gun appeared real but could not tell whether it was a real gun or a BB
gun.
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The Second Robbery
Two months later, in February 2016, defendant and D.C. robbed the same
pharmacy by again jumping over the counter and demanding drugs. Although the other
males in their getaway car provided defendant and D.C. with a black BB gun prior to the
robbery, defendant and D.C. did not use any gun during the crime. The police found their
abandoned getaway car with an imitation firearm or BB gun inside.
Uncharged Robberies
In the two months after the February robbery, defendant and D.C. robbed two
more pharmacies, with a fake gun in the first instance and with no weapon in the second.
The police apprehended D.C. after their last robbery and he confessed to all four
robberies and named defendant as the other individual who committed the December and
February robberies. D.C. ultimately pleaded guilty to both robberies at issue in this case.
Procedural History
The People charged defendant with four counts of second degree robbery (Pen.
Code, § 211), two counts arising from the December robbery and two counts arising from
the February robbery. The People further alleged defendant personally used a firearm in
the first robbery. (Pen. Code, § 12022.53, subd. (b).) At trial, defendant’s defense was
that the gun used in the first robbery was not a firearm as defined by Penal Code section
16520, subdivision (a). The jury found defendant guilty on all counts and found the
firearm allegations true. The court sentenced defendant to 14 years in prison, comprised
of the midterm of three years for count one, 10 consecutive years for the firearm
enhancement to count one, one consecutive year for count three, three concurrent years
for count two, 10 concurrent years for the firearm enhancement to count two, and three
concurrent years for count four.
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DISCUSSION
I. Admission of Partial Recorded Conversation
Defendant argues the court abused its discretion by admitting only a portion of his
jail phone call to the jury, violating the rule of completeness (§ 356). The People contend
this claim is forfeited by failing to make a specific objection under section 356.
Assuming the claim was adequately preserved, they contend the trial court did not abuse
its discretion and any error was harmless. We find defendant’s claim is cognizable on
appeal and find no abuse of discretion.
a. Procedural Background
Before trial, the People sought to admit part of the recording of a jail phone call
between defendant and an unknown visitor, where they discussed the December robbery.
The entire recording was as follows:
Visitor: “Are they going to keep you here for the rest of your time?”
Defendant: “I ain’t sentenced yet.”
Visitor: “Hum?”
Defendant: “I did not get sentenced yet.”
Visitor: “So what your lawyer told you that they are talking 21 years or
[unintelligible] at your last case or your last court?”
Defendant: “What? What?”
Visitor: “I got ears, nigga.”
Defendant: “Water to my ears?”
Visitor: “[Unintelligible]. Wrap your head around, boy. Did you say -- I said,
nigga, now what did I just say? What your lawyer told you?”
Defendant: “Yeah. If I get five years, it is doubled up because I got a strike plus I
had -- I got the loaded gun.”
Visitor: “Oh you had a gun?”
Defendant: “Yup.”
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The People argued that the court should admit the last three lines, beginning with
“I got the loaded gun,” and offered a jail intelligence officer to provide the relevant
context of their conversation. Defendant first objected to the admissibility of the entire
tape as more prejudicial than probative under section 352. He also argued the
conversation “should be opened up fully in the event that this communication needs to be
put in evidence by the prosecution.” The court clarified, “But your position would be if
the tail end of it comes in then that entire exchange right there needs to come in; is that
right?” Defense counsel responded in the affirmative.
The court took the matter under submission and, after renewed argument on the
issue, the court found only the last two lines were admissible: the visitor’s question, “Oh
you had a gun?” and defendant’s response, “Yup.” The court found that the question and
answer as to whether defendant had a gun was “distinct” from the previous discussion
regarding sentencing exposure. The court concluded that “neither Evidence Code Section
352 nor Evidence Code Section 356 which is the rule of completeness” required
exclusion of the tape nor “inclusion of any prior portions of the conversation.”
b. Sufficiency of the Objection
“An objection is sufficient if it fairly apprises the trial court of the issue it is being
called upon to decide. [Citations.] In a criminal case, the objection will be deemed
preserved if, despite inadequate phrasing, the record shows that the court understood the
issue presented. [Citations.]” (People v. Scott (1978) 21 Cal.3d 284, 290; see People v.
Scott (2015) 61 Cal.4th 363, 402 [trial court’s statement admitting evidence as more
probative than prejudicial preserved defendant’s objection, even though defendant only
objected that the evidence was cumulative under section 352].)
The record shows that defendant sought to admit the full tape for context in the
event the court found at least part of the tape was admissible. The court understood that
defendant made objections in the alternative, under both sections 352 and 356, and
specifically referenced the rule of completeness under section 356 when issuing its
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ruling. (Cf. People v. Scott, supra, 21 Cal.3d at p. 290 [objection sufficiently preserved
even though counsel made no specific constitutional reference and cited no authorities].)
Thus, defendant’s claim under section 356 is preserved for appeal.
c. Abuse of Discretion
Defendant contends had the jury heard defendant’s prior statements about his
sentencing exposure, they might have concluded his affirmative response that he had a
gun referred to the charges in this case, rather than being an admission he actually had a
gun during the robbery. As a result, defendant argues the jury was misled and he was
prejudiced. We cannot agree the trial court abused its discretion here.
Section 356 provides: “Where part of an act, declaration, conversation, or writing
is given in evidence by one party, the whole on the same subject may be inquired into by
an adverse party; when a letter is read, the answer may be given; and when a detached
act, declaration, conversation, or writing is given in evidence, any other act, declaration,
conversation, or writing which is necessary to make it understood may also be given in
evidence.”
The purpose of section 356 “is to prevent the use of selected aspects of a
conversation, act, declaration, or writing, so as to create a misleading impression on the
subjects addressed. [Citation.] Thus, if a party’s oral admissions have been introduced in
evidence, he [or she] may show other portions of the same interview or conversation,
even if they are self-serving, which ‘have some bearing upon, or connection with, the
admission . . . in evidence.’ [Citations.]” (People v. Arias (1996) 13 Cal.4th 92, 156.)
We review the trial court’s determination of whether to admit evidence under this
provision for abuse of discretion. (See People v. Pride (1992) 3 Cal.4th 195, 235.)
“Application of Evidence Code section 356 hinges on the requirement that the two
portions of a statement be ‘on the same subject.’ ” (People v. Vines (2011) 51 Cal.4th
830, 860, overruled on other grounds in People v. Hardy (2018) 5 Cal.5th 56, 103-104.)
Here, as the trial court concluded, the two portions of the statement are not on the same
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subject. Defendant and the visitor were discussing defendant’s sentencing exposure in
this case in light of the firearm enhancement. They were not discussing whether
defendant was, in fact, armed with a firearm. When the visitor interjected to ask whether
defendant actually had been armed, this was a new subject of conversation. Although
section 356 prevents us from “ ‘draw[ing] narrow lines around the exact subject of
inquiry’ ” (People v. Zapien (1993) 4 Cal.4th 929, 959), because the last exchange
between defendant and the visitor marks an abrupt shift of subject, the final exchange can
be considered independently without creating a misleading impression of the subject
addressed. Under these circumstances, the court was well within its discretion to limit
the recording to the last two lines and admit only that portion into evidence.
II. Lesser Included Enhancement
Defendant next argues that his attorney’s failure to request a jury instruction on
the personal use of a deadly or dangerous weapon enhancement (Pen. Code, § 12022,
subd. (b)), a lesser included enhancement of personal use of a firearm (Pen. Code,
§ 12022.53, subd. (b)), constituted ineffective assistance of counsel.2 He contends that
defense counsel’s failure to request the lesser included enhancement had no rational
tactical purpose and prejudiced defendant. We disagree.
“ ‘In assessing claims of ineffective assistance of trial counsel, we consider
whether counsel’s representation fell below an objective standard of reasonableness
under prevailing professional norms and whether the defendant suffered prejudice to a
reasonable probability, that is, a probability sufficient to undermine confidence in the
outcome. [Citations.] A reviewing court will indulge in a presumption that counsel’s
performance fell within the wide range of professional competence and that counsel’s
2 A trial court has no sua sponte obligation to instruct on lesser included enhancements.
(People v. Majors (1998) 18 Cal.4th 385, 410-411.)
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actions and inactions can be explained as a matter of sound trial strategy. Defendant thus
bears the burden of establishing constitutionally inadequate assistance of counsel.
[Citations.] If the record on appeal sheds no light on why counsel acted or failed to act in
the manner challenged, an appellate claim of ineffective assistance of counsel must be
rejected unless counsel was asked for an explanation and failed to provide one, or there
simply could be no satisfactory explanation. [Citation.]’ [Citation].” (People v.
Gamache (2010) 48 Cal.4th 347, 391.)
With respect to enhancements, an all-or-nothing choice on enhancements, as
opposed to offenses, does not distort the factfinding process, because the jury will only
consider the enhancement allegations once the defendant is found guilty of the underlying
offense. (People v Majors, supra, 18 Cal.4th at p. 410.) Thus, there is no risk the jury
will convict solely to avoid letting the defendant go free. (Ibid.)
In this case, defendant did not dispute that he had a gun. Rather, he argued the
People failed to meet their burden to prove the gun was a firearm, rather than a BB gun or
pellet gun, beyond a reasonable doubt. A pellet gun or BB gun is not a firearm, but is a
deadly or dangerous weapon within the meaning of Penal Code section 12022,
subdivision (b). (People v. Montalvo (1981) 117 Cal.App.3d 790, 797.) Thus, it is
possible that counsel made a tactical decision to pursue an all-or-nothing” strategy,
hoping the jury would find the People failed to prove that the gun was a firearm. Given
the choice between a one-year enhancement or no enhancement if the People did not
prove their case, counsel may have reasonably opted for the latter.
Consequently, while defense counsel’s gamble may not have ultimately paid off,
we cannot find that this approach defies satisfactory explanation.
III. Cumulative Effect of Errors
Having rejected defendant’s claims of individual errors, we reject defendant’s
claim of cumulative error. (In re Reno (2012) 55 Cal.4th 428, 483.)
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DISPOSITION
The judgment is affirmed.
/s/
RAYE, P. J.
We concur:
/s/
DUARTE, J.
/s/
RENNER, J.
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