People v. Jackio , 236 Cal. App. 4th 445 ( 2015 )

Filed 4/30/15
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C074019
Plaintiff and Respondent, (Super. Ct. No. 11F04362)
v.
LAWRENCE JACKIO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Sacramento County, Michael
A. Savage, Judge. Affirmed as modified.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Darren
K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of parts II through IX.
1
Convicted of attempted murder and other crimes associated with a home invasion
and sentenced to both determinate and indeterminate terms in state prison, defendant
Lawrence Jackio contends on appeal that his waiver of his right to counsel, under which
he represented himself at trial, was inconsistent with his Sixth Amendment rights because
the trial court did not outline the possible terms of imprisonment for the various crimes
and enhancements charged against him. Instead, the trial court simply advised defendant
that he risked life in prison if he was convicted.
In the published part of this opinion, we conclude that, under the circumstances,
the trial court’s advisement adequately warned defendant of the risks of self-
representation.
In the unpublished part of this opinion, we find no merit in defendant’s remaining
contentions. We therefore affirm the judgment but remand to the trial court to correct a
clerical error in the abstract of judgment.
FACTS
We recount the evidence in the light most favorable to the jury’s verdicts. For
example, even though neither of the victims was able to identify defendant as one of the
assailants, we refer to him by name from the outset because there was ample evidence
that he was one of the assailants.
Early in the morning on June 16, 2011, defendant and Rashid Deary-Smith entered
the garage of a house where Martez Laster and Antonia Branch lived together with their
one-year-old son. Between 2:00 and 3:00 a.m., Branch, who had been out that night,
approached the residence in her car with her son in the backseat. She opened the garage
door with a remote control from her car and drove into the garage. In the garage, Branch
closed the garage door with the remote control and went around her car to get her son out
of the backseat. Defendant and Deary-Smith approached her, pointed guns at her, and
told her to open the door leading into the house. One of the men, probably Deary-Smith,
2
hit Branch in the head with his gun, opening up a wound that required five staples to
close.
Laster, who was inside the house, heard the commotion in the garage and grabbed
his .40-caliber handgun. He went to the door that connects the garage to the interior of
the house, unlocked it, and began to open it. As he was opening the door, he was rushed
by defendant and Deary-Smith. Laster took a couple steps back and was shot in the side,
so he returned fire. Defendant and Deary-Smith retreated into the garage.
Both defendant and Deary-Smith had been hit by gunfire from Laster. Deary-
Smith was hit in the head and fell to the floor of the garage, and defendant, who was hit
in the leg, escaped out the side door of the garage. Meanwhile, Branch got back into her
car, put the car in reverse, and backed up through the closed garage door.
A neighbor saw defendant flee. Defendant limped along, leaving a trail of blood
and dragging himself to a car. He got into the car and drove away. A subsequent
medical examination revealed that defendant was hit twice in the leg, with one of the
bullets breaking his femur. Defendant had gunshot residue on his hands and pants. And
the DNA in the trail of blood from the house to the car matched defendant’s DNA profile.
Also along the trail of blood between the house and the car, defendant dropped a nine-
millimeter handgun.
When law enforcement arrived at the house, Deary-Smith was still on the floor of
the garage. He had zip ties in his pocket, and a loaded .45-caliber semiautomatic
handgun was on the ground next to his head. No spent .45-caliber casings were found at
the house – evidence that Deary-Smith did not fire the gun. Separate DNA samples from
the gun matched Deary-Smith’s and Branch’s DNA profiles.
Later that day, when the owner of the car that defendant had driven away from the
house looked into her car, she found blood and defendant’s wallet. The blood was also
identified as defendant’s through DNA testing.
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Two expended casings from a nine-millimeter gun were found, one in the house
and one in the garage. They matched the gun left by defendant as he dragged himself to
the car after the shootings.
Defendant testified in his own defense. He admitted that he was at the house in
question when the gunfire erupted. He claimed, however, that he had taken Deary-Smith
there to meet Deary-Smith’s cousin. While defendant was waiting in front of the house,
he saw someone back out through the garage door, heard gunshots, and realized he had
been hit. He dragged himself to the car and drove away.
PROCEDURE
A jury convicted defendant of first degree burglary (Pen. Code, § 459; count one);
two counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2); counts two & four);
attempted murder (Pen. Code, §§ 664, 187, subd. (a); count three); two counts of
attempted first degree robbery (Pen. Code, §§ 664, 211; counts five and six); and being a
felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1); count seven). The jury
also found true various arming, discharge, and great bodily injury allegations. In a
bifurcated proceeding, the trial court found that defendant had a prior serious felony
conviction. The court sentenced defendant to a determinate term of 19 years four months
in state prison, with a consecutive indeterminate term of 50 years to life.
Additional facts and proceedings are recounted as they are relevant to the
discussion of defendant’s contentions on appeal.
DISCUSSION
I
Faretta Waiver
Before trial, defendant decided to represent himself, which prompted the trial
court to warn defendant of the dangers of self-representation, including the possibility
that he faced, in the trial court’s words, “life in prison.” Defendant contends that, when
he moved to represent himself, the trial court failed to give him an adequate breakdown
4
of what punishment he was facing if convicted. He argues that, under these
circumstances, his waiver of the right to counsel was not knowing and voluntary under
Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta).
Defendant’s contention raises two issues.
First, what notice does the Sixth Amendment require concerning the penalty faced
if the defendant is convicted? Does it require a breakdown of the full range of sentencing
options with respect to the crimes and enhancements charged? Or does it simply require
the court to notify the defendant concerning the maximum penalty he faces? We
conclude that it is the latter – that the court need notify the defendant only of the
maximum penalty he faces.
And second, did the trial court’s waiver colloquy in this case adequately notify this
defendant of the maximum penalty he faced if convicted? We conclude that, by
informing defendant that he faced life in prison as a penalty for the crimes and
enhancements charged, the court adequately notified defendant of the possible penalty he
faced if convicted.
Because the trial court’s advisement concerning the penalty was adequate,
defendant’s waiver of the right to counsel was knowing and voluntary, and there was no
violation of his Sixth Amendment right to counsel.
A. Procedural Background
On March 23, 2012, defendant signed a Faretta waiver form which included the
following statement: “Penalties for offense if found guilty are life in prison.” The
underlined part of the statement was handwritten. After a preliminary hearing on April
16, 2012, however, defendant requested and was granted appointment of counsel.
On May 18, 2012, defendant appeared before the court on a new Faretta motion.
Defendant said that he was a high school graduate and had finished almost a year of
college. The court went through the normal litany of admonitions about representing
5
oneself in a criminal action. (Defendant does not claim on appeal that the admonitions
were deficient, except as discussed here.) The relevant colloquy is as follows:
“THE COURT: . . . You do understand the penalties for the offenses for which
you’ve been charged could carry up to a life sentence[?] [¶] Do you understand that?
“THE DEFENDANT: Yes.” (Italics added.)
The court provided another Faretta waiver form, which defendant signed, with the
following statement: “Penalties for offense if found guilty are life.” Again, the
underlined portion was handwritten. The form listed the code sections for the crimes
charged in the information, but it did not list any code sections for enhancements.
The court found that defendant had made a knowing and voluntary waiver of his
right to counsel.
B. Sixth Amendment Jurisprudence
The Sixth Amendment of the United States Constitution guarantees a defendant
both (1) the right to be represented by counsel at critical stages of the prosecution and (2)
the right to represent himself, if he so elects. (Faretta, supra, 422 U.S. at p. 819; People
v. Koontz (2002) 27 Cal.4th 1041, 1069 (Koontz).) However, we must indulge every
reasonable inference against a defendant’s waiver of the right to counsel. (Brewer v.
Williams (1977) 430 U.S. 387, 404 [51 L.Ed.2d 424]; Koontz, supra, 27 Cal.4th at p.
1069.)
A valid waiver includes: (1) a determination by the court that the defendant has
the mental capacity to understand the proceedings (which is not an issue in this case) and
(2) a finding that the waiver is knowing and voluntary, which entails a finding that the
defendant understands the consequences of the decision and is not being coerced.
(Godinez v. Moran (1993) 509 U.S. 389, 400-401 & fn. 12 [125 L.Ed.2d 321, 332-333];
Koontz, supra, 27 Cal.4th at pp. 1069-1070.)
“In order to make a valid waiver of the right to counsel, a defendant ‘should be
made aware of the dangers and disadvantages of self-representation, so that the record
6
will establish that “he knows what he is doing and his choice is made with eyes open.”
[Citation.]’ (Faretta, supra, 422 U.S. at p. 835.) No particular form of words is required
in admonishing a defendant who seeks to waive counsel and elect self-representation; the
test is whether the record as a whole demonstrates that the defendant understood the
disadvantages of self-representation, including the risks and complexities of the particular
case. [Citation.]” (Koontz, supra, 27 Cal.4th at pp. 1070.)
Our role on appeal after a defendant has defended himself under Faretta and now
claims that his waiver of the right to counsel was made without being adequately advised
of the dangers and disadvantages of self-representation is to examine the whole record to
determine de novo whether the waiver was valid. (Koontz, supra, 27 Cal.4th at pp.
1070.)
C. Analysis
1. What does the Sixth Amendment require?
As noted, defendant was warned that he could be sentenced up to life in prison if
convicted. On appeal, he claims, however, that the advisement was inadequate because
the trial court was required to advise him of the full range of punishments he could face
for the crimes and enhancements charged.
Defendant relies primarily on a decision of the Ninth Circuit of the United States
Court of Appeals in making his contention that the advisements here were inadequate.
But we are not bound by that decision. (People v. Crittenden (1994) 9 Cal.4th 83, 120,
fn. 3.) Therefore, although we will discuss the Ninth Circuit decision later, we start with
the jurisprudence of the California Supreme Court and the United States Supreme Court.
No case of the California Supreme Court directly answers the specific question
posed in this case: whether a defendant wishing to represent himself at trial must be
advised of the full range of punishments he could face if convicted. However, in 2002,
the court held that a trial court did not err in giving advisements when it instructed a
defendant who wanted to represent himself at trial that he faced the death penalty.
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(Koontz, supra, 27 Cal.4th at pp. 1069-1073.) Obviously, the sentence could have been
life without parole, even if he was convicted of all the crimes, because the death penalty
is not mandatory for any crime in California. (See Pen. Code, § 190.) But in Koontz, the
court did not discuss specifically the advisement concerning the possible penalty if the
defendant was convicted. Instead, it rejected the defendant’s contentions that (1) the trial
court did not adequately warn him of the disadvantages of not having an attorney
represent him and (2) the defendant was mentally unfit to comprehend the risks of
representing himself. (Koontz, supra, 27 Cal.4th at pp. 1072-1073.) A case is not
authority for a proposition not considered. (Ginns v. Savage (1964) 61 Cal.2d 520, 524,
fn. 2.)
A 2009 California Supreme Court case summarized the law generally applicable
in these circumstances:
“ ‘A defendant seeking to represent himself “should be made aware of the dangers
and disadvantages of self-representation, so that the record will establish that ‘he knows
what he is doing and his choice is made with eyes open.’ [Citation].” (Faretta, supra,
422 U.S. at p. 835.) “No particular form of words is required in admonishing a defendant
who seeks to waive counsel and elect self-representation.” [Citation.] Rather, “the test is
whether the record as a whole demonstrates that the defendant understood the
disadvantages of self-representation, including the risks and complexities of the particular
case.” [Citations.]’ [Citation.] Thus, ‘[a]s long as the record as a whole shows that the
defendant understood the dangers of self-representation, no particular form of warning is
required.’ [Citations.]” (People v. Burgener (2009) 46 Cal.4th 231, 240-241
(Burgener).)
Likewise, no decision of the United States Supreme Court answers the specific
question presented by defendant here. However, in 2004, the high court provided
guidance concerning the necessary advisements in a different procedural setting – when a
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defendant desires to represent himself to enter a guilty plea. (Iowa v. Tovar (2004) 541
U.S. 77 [158 L.Ed.2d 209] (Tovar).)
In Tovar, the defendant said during pretrial proceedings that he wanted to
represent himself and to plead guilty. The trial court engaged in a guilty plea colloquy,
advising the defendant of the rights he must waive to plead guilty, but the court did not
advise the defendant under Faretta of the dangers and disadvantages of self-
representation. The Iowa Supreme Court found that the trial court’s advisements were
deficient because the court did not warn the defendant that by representing himself he
might overlook viable defenses and would not have the opportunity to obtain an
independent opinion of whether he should plead guilty. (Tovar, supra, 541 U.S. at pp.
81-84.)
On review, the Tovar court held that the advisements required by the Iowa
Supreme Court are not required by the Constitution. Instead, “[t]he constitutional
requirement is satisfied when the trial court informs the accused of the nature of the
charges against him, of his right to be counseled regarding his plea, and of the range of
allowable punishments attendant upon the entry of a guilty plea.” (Tovar, supra, 541
U.S. at p. 81, italics added.)
The Tovar court emphasized that the central component for a valid waiver is that
the defendant knows what he is doing because he has been warned of the hazards ahead.
But there is no prescribed script. (Tovar, supra, 541 U.S. at pp. 88-89.)
The difference in procedural settings of this case and Tovar is significant. In
Tovar, the defendant was pleading guilty. Here, a trial lay ahead.
Tovar’s requirement that a defendant desiring to represent himself to enter a guilty
plea be advised of “the range of allowable punishments attendant upon the entry of a
guilty plea” cannot practically be applied to a defendant desiring to represent himself at
trial. The essential difference is that, while in a guilty plea setting the crimes and
enhancements for which the defendant can be punished are known, in a case such as ours
9
where the defendant is going to trial the jury may or may not convict the defendant of the
crimes or find true the enhancement allegations. This makes it impractical to try to
predict the possible terms and enhancements that will eventually be available to the trial
court at sentencing.
When a defendant represents himself, he may be acquitted, which means he will
not be subject to punishment. On the other hand, he may be convicted of all the crimes
charged, with true findings on all the enhancements. In that case, the court may impose
the maximum punishment for the crimes and enhancements charged. Also, the jury may
convict on some counts and acquit on others or convict of lesser included crimes, and the
jury may do the same with the enhancement allegations. If the defendant is convicted
and enhancements are found true, the court may strike or stay some of the punishment or
select lower terms. In other words, a requirement that a trial court advise a defendant
desiring to represent himself at trial of the full range of possible punishments would
require the trial court to start with no punishment for acquittal and work its way through
the virtually endless permutations and combinations of terms, ending with the maximum
possible punishment. Merely to state it demonstrates the unworkability of requiring the
court to advise the defendant as to every possible punishment.
Instead, the most reasonable solution consistent with case law and the Constitution
is to require the trial court to advise a defendant desiring to represent himself at trial of
the maximum punishment that could be imposed if defendant is found guilty of the
crimes, with enhancements, alleged at the time the defendant moves to represent himself.
By so advising, the trial court puts the defendant on notice that, by representing himself,
he is risking imposition of that maximum possible punishment. The defendant who
decides to represent himself after this advisement proceeds with his “ ‘eyes open’ ” and
understands the dangers of self-representation, at least with respect to the possible
punishment. (Faretta, supra, 422 U.S. at p. 835; Burgener, supra, 46 Cal.4th at p. 241.)
Neither the Constitution nor interpretive case law requires more.
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2. Was the advisement in this case adequate?
With this understanding, that an advisement of the maximum possible punishment
satisfies the Constitution’s requirements with respect to a Faretta colloquy, we turn to the
advisement given in this case. Defendant contends that it was deficient because the trial
court’s statement that he faced life in prison was ambiguous. We disagree.
On appeal, defendant argues: “The court’s advisement that [defendant] faced[]
‘life’ is too ambiguous in light of the various meanings of life, as well as the fact that
[defendant] was in fact facing onerous 25-to-life sentences, along with doubled sentences
under the Three Strikes statutes.”
The focus of our review of the adequacy of a specific Faretta advisement is what
the defendant understood from the advisement. (See People v. Welch (1999) 20 Cal.4th
701, 733.) We conclude that the advisement here successfully apprised defendant that, if
he were convicted, he could spend the rest of his life in prison.
Three statements are at issue here. The first Faretta waiver form instructed
defendant that “[p]enalties for offense if found guilty are life in prison.” Later, during the
second Faretta proceedings, defendant expressly stated that he understood he could be
sentenced “up to a life sentence.” And finally, the second Faretta waiver form instructed
defendant that “[p]enalties for offense if found guilty are life.”
These statements, taken together, were clear that defendant’s punishment could
amount to “life in prison,” meaning incarceration for the rest of his life. Nothing in the
record leads us to conclude otherwise.
However, defendant asserts that, because a “life” term under California law can
mean so many different things, we must conclude that the advisement was ambiguous
and did not successfully convey to defendant that a conviction might result in
incarceration for the rest of his life.
Defendant seeks to equate the court’s use of the term “life” with the statutory
indeterminate term of life with parole, which allows for parole after seven years. Penal
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Code section 3046 provides that a prisoner “under a life sentence” may be paroled after
seven years. But defendant gives no good reason for us to believe that he reasonably
understood the court’s advisement to refer to Penal Code section 3046. The advisement
did not refer to that code section but instead made a very simple statement about the
length of time defendant could be incarcerated.
We also see no relevance of the fact that defendant was facing possible
determinate and indeterminate terms or that he could be subject to consecutive terms of
25 years to life for the firearm discharge allegations. Defendant argues that the trial court
was required to provide these details, but the Constitution does not require an advisement
concerning these permutations and combinations, as we already discussed.
Finally, we consider defendant’s primary cited authority – United States v. Erskine
(9th Cir. 2004) 355 F.3d 1161 (Erskine). That Ninth Circuit decision is different on its
facts and distinguishable on the law, in addition to not being binding on us. In Erskine,
the trial court mistakenly informed the defendant during a Faretta colloquy that he faced
a possible one-year incarceration, even though it was possible that the punishment for his
crimes would be five years. (Id. at p. 1165.) The Ninth Circuit held that it could not
conclude that the defendant’s Faretta waiver was knowing and voluntary because of this
error in the Faretta colloquy. (Erskine, supra, 355 F.3d at p. 1171.) Here, on the other
hand, there was no error in the Faretta colloquy; therefore, the holding of Erskine does
not support reversal in this case.
We conclude that the Faretta colloquy in this case did not violate defendant’s
Sixth Amendment right to counsel.
II
Sufficiency of Evidence of Gun Discharge and Personal Infliction of Injury
The jury found that, in connection with his attempted robbery of Branch (count
five), defendant personally and intentionally discharged a weapon (Pen. Code,
§ 12022.53, subd. (c)) and personally and intentionally discharged a weapon causing
12
great bodily injury (Pen. Code, § 12022.53, subd. (d)). Defendant contends that the
evidence was insufficient to sustain these enhancements because there was no evidence
that he shot at Branch or that her injuries constituted great bodily injury. The contention
is without merit because it is based on a false premise – that is, that the true findings on
these enhancements required that defendant shot at Branch and inflicted on her great
bodily injury. To the contrary, defendant’s shooting at Laster and inflicting great bodily
injury on him was sufficient because defendant did so in the course of his attempted
robbery of Branch. (People v. Frausto (2009) 180 Cal.App.4th 890, 897-903 (Frausto).)
In his reply brief, defendant invites us to disagree with the 2009 holding in Frausto. We
decline.
“In reviewing a sufficiency of evidence claim, the reviewing court’s role is a
limited one. ‘ “The proper test for determining a claim of insufficiency of evidence in a
criminal case is whether, on the entire record, a rational trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the
evidence in the light most favorable to the People and must presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.]” ’ [Citations.]” (People v. Smith (2005) 37 Cal.4th 733, 738-739.) We must
accept any reasonable inference the jury might have drawn from the evidence. (People v.
Rodriguez (1999) 20 Cal.4th 1, 11.)
In Frausto, the court held that, where a defendant was convicted of one count of
murder and two counts of attempted murder, the death of one victim supported
imposition of the Penal Code section 12022.53 enhancement with respect to the
attempted murder of the other two victims because “[a] reasonable trier of fact could find
that the shootings were part of one continuous transaction.” (Frausto, supra, 180
Cal.App.4th at p. 903.) The court relied on People v. Oates (2004) 32 Cal.4th 1048,
1052-1056, which held that a single injury supports multiple Penal Code section
12022.53, subdivision (d) enhancements because the enhancement applies to the great
13
bodily injury or death of “any person” and is not limited to the harm done to a particular
victim.
Here, defendant’s crimes were part of one continuous transaction. Therefore, his
shooting of Laster, with resulting great bodily injury, sufficed to sustain the
enhancements for discharging a firearm and inflicting great bodily injury as to the
attempted robbery of Branch.
III
Sufficiency of Evidence of Assault and Attempted Robbery
Defendant contends that, because there was no aiding and abetting instruction and
there was no evidence that he personally assaulted Branch, the evidence was insufficient
to sustain the jury’s verdict that he assaulted Branch with a firearm (count two) and
intended to rob her (count five). To the contrary, there was evidence that he personally
assaulted Branch with a firearm and intended to rob her.
A. Assault with a Firearm
“An assault is an unlawful attempt, coupled with a present ability, to commit a
violent injury on the person of another.” (Pen. Code, § 240.) “Assault with a deadly
weapon can be committed by pointing a gun at another person [citation], but it is not
necessary to actually point the gun directly at the other person to commit the crime.”
(People v. Raviart (2001) 93 Cal.App.4th 258, 263.)
After Branch got out of her car in the garage, two men with guns approached her.
She testified that she saw them “pull weapons to [her] head.” One of the men told her to
open the door, then he hit her in the head with his gun. Branch also testified that the one
who pistol-whipped her was the one who got away, not the one who was shot and
remained in the garage, although she said that it was “very possible” that she was wrong
about that.
Despite this evidence, defendant asserts that the evidence was insufficient because
Branch could not identify him as one of the assailants and her DNA was found on the gun
14
that lay next to Deary-Smith on the floor of the garage after defendant had fled. This
argument merely highlights conflicting testimony. The evidence, as a whole, established
that defendant and Deary-Smith were the two men in the garage. And Branch’s
testimony that the men pointed their guns at her head was sufficient to sustain the
conviction for assault with a firearm.
B. Intent to Rob
Intent to take personal property in possession of another is an element of
attempted robbery. (Pen. Code, §§ 211, 664.) This intent need not be directly proved but
may be inferred from all of the circumstances of the case. (People v. Gilbert (1963) 214
Cal.App.2d 566, 567.)
Defendant argues: “In the instant case, there are only unsupported speculative
assumptions that the perpetrator’s intent in this count was to rob Branch, who was never
asked to turn over any property. There were no demands for money or property, and no
facts suggested that the perpetrator’s intent was to do anything but get her unexpected
presence resolved, so they could go forward with the apparent intent to enter the
residence.”
The evidence was sufficient that defendant intended to take personal property
from Branch, as she was in her own residence during the time of the crimes. A person’s
personal property in the residence may be in that person’s immediate possession even if
the property is in a different room because the person exercises some physical control
over the property. (People v. Gomez (2008) 43 Cal.4th 249, 257.) Here, the jury could
have reasonably inferred that defendant and Deary-Smith were trying to get into the
house to commit theft. Indeed, there seems to be no other motive for the attempt to get
into the house. Also, zip ties were found in Deary-Smith’s pocket, indicating an intent to
subdue the residents while defendant and Deary-Smith committed the theft. Under this
factual scenario, it was unnecessary for defendant to attempt to take anything that Branch
was carrying with her.
15
The evidence that he intended to rob Branch was sufficient.
IV
Sufficiency of Proximate Cause Evidence
Defendant contends that the evidence was insufficient to sustain the Penal Code
section 12022.53, subdivision (d) enhancements on the attempted murder (count three)
and attempted robbery (count six) of Laster because the causation requirement was not
met. This contention is frivolous.
Penal Code section 12022.53, subdivision (d) provides for a sentencing
enhancement of 25 years to life if the defendant “personally and intentionally discharges
a firearm and proximately causes great bodily injury . . . to any person other than an
accomplice . . . .”
Defendant claims that the jury could not rationally conclude that he was the one
who shot Laster. To the contrary, the evidence showed that: (1) defendant had a nine-
millimeter handgun, while Deary-Smith had a .45-caliber handgun, (2) two nine-
millimeter casings were found at the scene, while no .45-caliber casings were found,
(3) defendant had gunshot residue on his hands, and (4) Laster was shot by one of the
assailants. Under this factual scenario, the jury easily inferred that defendant shot Laster.
Defendant cites People v. Bland (2002) 28 Cal.4th 313 for the proposition that,
where there are two assailants and it cannot be determined who shot the victim, there is
insufficient evidence to sustain the enhancement for personally discharging the firearm
and inflicting great bodily injury. (Id. at pp. 337-338.) But reference to Bland is
unhelpful to defendant because, here, the evidence established that defendant shot Laster.
V
Duty to Instruct on Third Party Culpability
Defendant contends that, because his defense at trial was that someone else
committed the crimes, the trial court had a duty to instruct the jury on third party
16
culpability, even though he did not request the instruction. The contention is without
merit because the trial court did not have a duty to give the instruction sua sponte.
The California Supreme Court has repeatedly rejected this contention. A trial
court does not have a sua sponte duty to instruct regarding third party culpability where,
as here, the jury is instructed that: (1) a defendant is presumed innocent, (2) the
prosecution must prove the defendant’s guilt beyond a reasonable doubt, and (3) the
defendant is entitled to a verdict of not guilty if the jury has reasonable doubt regarding
his guilt. (People v. Gutierrez (2009) 45 Cal.4th 789, 823-825; People v. Abilez (2007)
41 Cal.4th 472, 516-517.)
The trial court did not err.
VI
Admission of Prior Bad Acts
The trial court admitted evidence of defendant’s prior crimes to impeach his
testimony. On appeal, defendant contends that the prior crimes evidence was improperly
admitted under Evidence Code section 1101, subdivision (b). We conclude that the
evidence was not admitted under Evidence Code section 1101, subdivision (b), and,
therefore, the contention is without merit.
A. Background
“Evidence Code section 1101, subdivision (b), points out that uncharged conduct
can be relevant and admissible to prove some fact other than propensity, such as motive
or intent. [Citation.]” (People v. McCurdy (2014) 59 Cal.4th 1063, 1096.) Independent
of Evidence Code section 1101 admissibility, the California Constitution allows use of
relevant evidence, including crimes of moral turpitude, to impeach a witness. (Cal.
Const., art. I, § 28, subd. (f)(2)&(4); People v. Wheeler (1992) 4 Cal.4th 284, 290-295.)
In its trial brief, the prosecution signaled its intent to introduce evidence of prior
crimes defendant had committed. The purpose of the evidence would be to show intent,
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motive, and absence of mistake under Evidence Code section 1101, subdivision (b). The
proposed evidence included five incidents (in the order presented by the prosecution):
 in July 2009, defendant committed burglary (Pen. Code, § 459), for which he was
convicted;
 in March 2009, defendant’s palm print was found on a stolen keyboard after
Deary-Smith and others were arrested in connection with a burglary, for which
defendant faced charges that were later dropped in connection with defendant’s
guilty plea on the July 2009 burglary;
 in November 2007, defendant (as a juvenile) committed a burglary, for which a
wardship petition was sustained;
 in January 2007, defendant (as a juvenile) committed burglary, for which a
wardship petition was sustained; and
 in July 2005, defendant (as a juvenile) broke into a home where he believed
marijuana was kept, for which a petition was filed but ultimately dismissed.
At a pretrial hearing, the trial court asked defendant whether he objected to
admission of evidence of his prior crimes, and defendant responded, “Yes.” The trial
court then deferred a ruling on the matter, saying that, if defendant proffered the defense
that he just happened to be walking past the house and got shot, then the prior crimes
evidence could be relevant to his intent.
Before defendant testified, the prosecution moved to impeach defendant’s
credibility as a witness with the five acts summarized in the trial brief and an additional
2005 robbery defendant (as a juvenile) committed using a firearm, for which a wardship
petition was sustained. Defendant objected to the use of the juvenile adjudications, and
the trial court ruled that they were admissible for impeachment purposes because, among
other things, they were crimes involving moral turpitude.
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The prosecutor asked the court whether the six crimes would also be admissible
under Evidence Code section 1101, subdivision (b), but the court declined to rule on that
until later.
During cross-examination of defendant, the prosecutor asked defendant about the
six crimes. Defendant confirmed some of the details but denied or was evasive about
others. In its rebuttal case, the prosecution introduced other details, in response to
defendant’s denials and evasiveness.
During closing argument, the prosecutor did not argue to the jury that defendant’s
prior crimes were relevant to his intent, motive, or absence of mistake. However, at the
end of the argument, the prosecutor said to the jury: “And the overwhelming weight of
the evidence suggests that [defendant] was acting in conformity with what you know
about him, and that his conduct after this crime does not support his theory, and that his
statement to law enforcement close in time to these events in no way corroborates his
theory.”
In the jury instruction conference, the trial court said that Evidence Code section
1101, subdivision (b) had “arguably” been introduced, and it advised the parties to think
about whether they wanted to request the CALCRIM instruction in that regard. (See
CALCRIM No. 375.) Later, the prosecutor informed the court that he was not requesting
the court to instruct using CALCRIM No. 375, and the trial court noted that the
prosecution had not argued that the prior crimes helped establish intent under Evidence
Code section 1101, subdivision (b). So the trial court did not give the instruction.
Instead, the trial court instructed the jury on how to use the prior crimes evidence to
evaluate defendant’s credibility. It informed the jury that it could use prior crimes or
misconduct evidence “only in evaluating the credibility of the witness’s testimony.”
(CALCRIM No. 316.)
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B. Analysis
Defendant contends on appeal that the evidence of his prior crimes was improperly
admitted under Evidence Code section 1101, subdivision (b). Our review of the
proceedings, however, reveals that the evidence was not admitted under Evidence Code
section 1101, subdivision (b). The court recognized as much, and for that reason agreed
not to instruct the jury using CALCRIM No. 375. Instead, the evidence was admitted as
impeachment. Defendant does not contend that it was improperly admitted for that
purpose. Therefore, his contention that the evidence was improperly admitted under
Evidence Code section 1101 is without merit.
Defendant also argues that the prosecutor, as shown by the closing argument, used
the prior crimes evidence to establish propensity, which is not allowed by Evidence Code
section 1101. But the trial court did not admit the evidence to show propensity, and, if
the prosecutor’s argument was improper in that regard, defendant forfeited the issue by
failing to object to the argument on that basis. (People v. Tully (2012) 54 Cal.4th 952,
1037-1038.)
VII
Admission of Evidence under Evidence Code section 352
Defendant contends that the trial court erred by not excluding the evidence of his
prior crimes under Evidence Code section 352. He claims that, even though he did not
object to the evidence based on Evidence Code section 352, “courts weigh whether to
admit evidence under Evidence Code section 1101, subdivision (b) by looking to
Evidence Code section 352 . . . .” This contention is without merit because failure to
object based on Evidence Code section 352 forfeits consideration of the issue on appeal.
During the discussion of whether evidence of defendant’s prior crimes should be
admitted, the trial court asked defendant: “Do you object to the People putting that
evidence on in front of this jury?” Defendant responded: “Yes.” The court then
analyzed whether the evidence was admissible under Evidence Code section 1101,
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subdivision (b), but the court and the prosecutor agreed that the issue of whether the prior
crimes would be used to show intent, motive, or absence of mistake would be decided
later.
Later, the trial court explained to defendant that the prosecutor intended to
introduce evidence of defendant’s prior crimes to impeach his credibility as a witness.
The court then asked: “[A]re you objecting to having [the prosecutor] be allowed to ask
you about these – any or all of these crimes while you are testifying?” Defendant
responded: “Object to, yes, the juvenile cases.” The court then analyzed the
admissibility of the prior crimes for impeachment purposes. After concluding that they
were admissible for impeachment as crimes of moral turpitude bearing on his credibility,
the court continued: “Applying the factors and looking at the case under [Evidence
Code] section 352, whether or not the probative value is outweighed by any possible
prejudice, I have looked at all the factors, and it seems to me that in determining this
defendant’s credibility ultimately, that the probative value is extremely high, and it is
certainly not outweighed by any possible prejudice, undue consumption of time or
substantial danger of confusing or misleading this jury.”
Failure to base a timely and specific objection to evidence on Evidence Code
section 352 forfeits consideration on appeal of that ground for exclusion. (People v.
Williams (1997) 16 Cal.4th 153, 206.) Even so, the trial court gratuitously evaluated the
six prior crimes proffered for impeachment and concluded that none was unduly
prejudicial.
In any event, even considering the issue, the trial court did not abuse its discretion
by admitting the prior crimes evidence for impeachment purposes. Defendant’s argument
in his opening brief completely misses the mark concerning whether the trial court
properly admitted the impeachment evidence under Evidence Code section 352 because
he claims it was admitted under Evidence Code section 1101. But it was not admitted
under Evidence Code section 1101.
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Evidence Code section 352 provides: “The court in its discretion may 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.”
As crimes of moral turpitude, defendant’s prior crimes, including multiple
burglaries, were highly relevant to his credibility. “The felony convictions of burglary
. . . herein necessarily involve moral turpitude. ‘[Whether] or not the target felony itself
evidences a moral defect, burglary remains in all cases the fundamentally deceitful act of
entering a house or other listed structure with the secret intent to steal or commit another
serious crime inside.’ [Citation.] An attempt to do such a fundamentally deceitful act
demonstrates the same ‘ “readiness to do evil.” ’ [Citation.]” (People v. Dillingham
(1986) 186 Cal.App.3d 688, 695.) “There is no automatic limitation on the number of
priors admissible for impeachment. Moreover, a series of crimes relevant to credibility is
more probative than is a single such offense. Thus, whether or not more than one prior
felony should be admitted is simply one of the factors which must be weighed against the
danger of prejudice. [Citation.]” (Ibid.)
Here, as the trial court expressly concluded, any prejudicial effect of the prior
crimes evidence was outweighed by (1) the probative value of the multiple crimes of
moral turpitude on the issue of defendant’s credibility and (2) the trial court’s instruction
to the jury not to use the evidence for any purpose other than evaluating defendant’s
credibility. Accordingly, although defendant does not really make the argument in his
brief, the trial court did not abuse its discretion under Evidence Code section 352 by
admitting the prior crimes as impeachment evidence.
VIII
Instruction on Use of Prior Crime Evidence
Defendant contends that the trial court erred by not instructing the jury, sua
sponte, using CALCRIM No. 375, concerning the permissible use of prior crimes
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evidence under Evidence Code section 1101. The contention is without merit because, as
we discuss above, the evidence was not admitted under Evidence Code section 1101. In
fact, the trial court instructed the jury that the only permissible use of the prior crimes
evidence was in evaluating a witness’s credibility.
IX
Amendment of Abstract of Judgment
As the Attorney General indicates, a clerical error appears in the abstract of
judgment. According to that document, defendant was sentenced to a determinate term
of 19 years. However, the determinate term imposed by the court was 19 years four
months. We therefore must direct the trial court to correct the abstract of judgment to
conform to the sentence imposed by the court. (See People v. Mitchell (2001) 26 Cal.4th
181, 185-188.)
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the clerical error in
the abstract of judgment to conform to the sentence imposed and to send the corrected
abstract of judgment to the Department of Corrections and Rehabilitation.
NICHOLSON , Acting P. J.
We concur:
HULL , J.
MURRAY , J.
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