Opinion
D074194
12-19-2018
THE PEOPLE, Plaintiff and Respondent, v. SIGFREDO CONCEPCION, Defendant and Appellant.
Cynthia Grimm, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Charles C. Ragland and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Bernardino County Super. Ct. No. FVI1500707) APPEAL from a judgment of the Superior Court of San Bernardino, John M. Tomberlin, Judge. Affirmed in part, vacated in part, and remanded for resentencing. Cynthia Grimm, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Charles C. Ragland and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
Sigfredo Concepcion shot his wife Linda in the back, causing her death, three days before their divorce was to become final. A jury convicted Concepcion of first degree murder and found true an allegation that he discharged a firearm causing a death during the commission of the crime. The trial court sentenced him to 25 years to life for the murder and an additional consecutive term of 25 years to life for the firearm enhancement, for a total of 50 years to life.
Concepcion appeals the conviction and argues: (1) there was insufficient evidence to support the jury's finding of premeditation and deliberation; (2) the trial court erred by admitting hearsay statements regarding Linda's perception of the marriage and divorce; (3) the prosecutor committed prejudicial misconduct by misstating the law and facts during closing argument; (4) defense counsel rendered ineffective assistance in various ways; (5) the trial court erred by allowing the jury to render the verdict without the defendant present in the courtroom; and (6) the case must be remanded for resentencing based on an amendment to Penal Code section 12022.53.
All further statutory references are to the Penal Code unless otherwise noted.
We conclude any error, misconduct, or ineffective assistance was not prejudicial and affirm the judgment, but remand for resentencing based on the amendment to section 12022.53.
FACTUAL AND PROCEDURAL BACKGROUND
Events Leading up to Linda's Death
Sigfredo and Linda Concepcion married in 1994 and purchased a home in 1998 (the property), taking title as joint tenants. Linda had a daughter, Georgina R., when she met Concepcion, and Concepcion helped raise Georgina as his own child. However, Concepcion and Georgina had a falling out in 2006, and no longer spoke to one another after Georgina moved away. Linda maintained a relationship with Georgina but Concepcion did not approve and often criticized Linda for speaking with Georgina.
In early 2012, Concepcion filed for divorce. On February 24, 2012, the court entered a judgment of dissolution. The judgment reflects the court acquired jurisdiction over Linda on January 10, 2012, when she was served with process. The court therefore set July 11, 2012 as the date when marital status would be terminated. In the judgment, the court identified the property as community property and divided the property by awarding each party half the proceeds from the sale of the property as his or her sole and separate property.
Family Code section 2340 provides that "[a] judgment of dissolution of marriage shall specify the date on which the judgment becomes finally effective for the purpose of terminating the marriage relationship of the parties." Family Code section 2339, subdivision (a) provides: "Subject to subdivision (b) and to Sections 2340 to 2344, inclusive, no judgment of dissolution is final for the purpose of terminating the marriage relationship of the parties until six months have expired from the date of service."
In June 2012, Linda went to visit Georgina in Alaska. Linda told Georgina that she was unhappy in her marriage, that she and Concepcion planned to sell the property and split the proceeds following the divorce, and that she planned to move to Alaska to live with Georgina by the end of the year.
The Day of Linda's Death
Linda returned home after a few days and, on Sunday, July 8, 2012, she went to church in the morning, as was her normal Sunday routine. The church was about seven or eight minutes from Linda's home and services typically ended between 12:00 p.m. and 12:30 p.m. Contrary to her usual practice, Linda did not call Georgina after church that day.
Concepcion did not go to church with Linda. He went to a local casino—San Manuel Indian Casino—later the same day. Video surveillance at the casino showed Concepcion entering the parking structure at approximately 3:10 p.m. He entered the casino shortly thereafter, carrying a bag and wearing a white t-shirt and dark blue shorts. He then took off the white t-shirt and put a blue t-shirt on over a white tank top that he had been wearing underneath the white t-shirt. He then put the white t-shirt back on and walked through the casino carrying something dark in his left hand. After a stop in a restroom, Concepcion entered a bar in the casino where he remained for approximately two hours. When Concepcion left the bar, he was wearing a dark shirt again. Surveillance cameras in the parking structure captured him leaving the casino at approximately 9:35 p.m.
Later that evening, paramedics were dispatched to Linda and Concepcion's residence. Paramedic Kenneth White was one of the first to arrive on the scene. Concepcion was distraught and pointed White towards a storage shed, which those on the scene came to refer to as the chicken coop due to its outward appearance. Inside, White discovered Linda's body lying on the floor; he noted the body was cold to the touch and that rigor mortis had already set in, but did not see any signs of trauma. He confirmed that Linda's heart was not beating using a cardiac monitor and declared her deceased. A coroner arrived around 12:45 a.m. on July 9 and determined that Linda had died approximately six to 10 hours earlier, but could not conclusively identify the cause of death.
The prosecutor asked White if he responded to a call "at approximately 2:29 p.m., July 8th, 2012" and White answered affirmatively. Given the timeline of the video surveillance from the casino, the remaining testimony in the case, and the fact that White testified that "it was a little dark" when he arrived, the time of "2:29 p.m." in the transcript appears to be an error. Moreover, the People's trial brief suggests Concepcion called 911 at approximately 10:26 p.m., and Georgina testified she called for a welfare check at 10:38 p.m. on July 8 and learned of Linda's death by 1:00 a.m. on July 9. The record therefore suggests that White arrived sometime late in the evening on July 8.
Meanwhile, Georgina had grown concerned that she had not heard from Linda; she called the Sheriff's department at approximately 10:38 p.m. on July 8, and the pastor from Linda's church. Around 1:00 a.m. on July 9, the pastor informed Georgina that Linda had died. The pastor's wife asked another church member, Harold A., to go to the house to sit with Concepcion. Harold had met Concepcion twice before, but they were not friends. Harold went to check on Concepcion as the pastor's wife requested; at that time, Concepcion told Harold that he and Linda could not afford medical coverage and that he had thought Linda might be able to get coverage if they got divorced.
Crime Scene Investigation
Sergeant Angel Gibilterra from the Sheriff's Specialized Investigations Division Homicide Detail arrived around 4:00 a.m. on July 9, and spent much of the day on the scene. When he first got to the house, he saw a white Honda CRV parked near the chicken coop—which was registered to Linda—and noticed a cell phone and a purse on the passenger side seat. He inspected the vehicle and found a potato chip can with money inside as well as a black vinyl zipper bag containing approximately $294 in cash.
There were three sets of tire impressions, all of which appeared similar, near the cars and the main house, a set of footprints on the ground facing away from the house and towards the chicken coop, and another set of footprints facing back towards the house. There was damage to the frame of the exterior door of the house facing the chicken coop, near the locking mechanism, and a pry bar was found inside the house on a nearby countertop. There was a blanket on the floor with a pellet rifle, pellet pistol, digital camera, and silver metal case lying on it, as well as an empty box for a .9 millimeter Star Arms firearm. Outside, a window screen had been removed and there was a milk crate on the ground next to it.
At around 1:45 p.m. on July 9, a coroner rolled Linda's body over in preparation for transport. Detective William Doemner was present at the time and noticed a hole in Linda's t-shirt. They removed the t-shirt and discovered a corresponding hole in the bra Linda was wearing. After removing the bra as well, they observed a bullet wound near Linda's right breast. Given the ongoing nature of the investigation, the police decided not to release any information regarding the bullet wound or the cause of death at that time.
At first, Sergeant Gibilterra thought the evidence at the scene indicated there had been a burglary, and that perhaps Linda had been shot when she came home and interrupted the burglar. After completing his investigation, he no longer believed that to be the case.
Georgina's Arrival in California
The next day, July 10, Georgina arrived in California. Concepcion picked Georgina up from the airport, along with Linda's brother, Ray. Concepcion was "very friendly" to Georgina, in contrast to how he had treated her for the past six to seven years before Linda's death. When Georgina got into the car, she noticed three plastic bags on the floor with clothes in them. Concepcion said the bags were his, moved them out of the way, and explained that the police had not let him into the house during their investigation so he had asked Ray to take him shopping for some new clothes.
Concepcion, Georgina, and Ray went directly from the airport to the sheriff's department because the sheriff had asked Concepcion to come in for an interview. When they arrived, a secretary at the station asked Concepcion where his wife was and Concepcion said, "She was sho -- she died." Georgina had previously understood that her mother died from a heart attack and told one of the detectives what Concepcion had said.
After the sheriff's department, the three returned to the property and Georgina went upstairs. While upstairs, Georgina looked out the window and saw Concepcion take the three bags full of clothes across the yard and throw them into a horse trailer used for trash. Georgina later retrieved the bags and hid them. Georgina reported her concerns regarding Concepcion to the sheriff's department, explaining that he told her he was planning on tearing down the chicken coop and urging them to "go over there and check out the chicken coop." She later gave the sheriff's department the bags of clothes she had retrieved from the trash.
Subsequent Investigation and Arrest
On July 13, the sheriff's department returned to the property to conduct a more thorough search of the chicken coop. They discovered a shell casing, a .9 millimeter handgun, and a nylon handgun holder. The gun and holster were found behind a stack of debris, including a ladder, a headboard, and various other items, such that it could not be easily seen before the items were removed. The serial number on the gun matched the serial number on the empty .9 millimeter Star Arms firearm box found in the living room of the house, and it was known that Concepcion owned a Star .9 millimeter pistol.
While the detectives were there, Georgina gave them the bags she had hidden. A criminalist with the sheriff's department tested the clothing for gunshot residue and found one particle on a jacket and one particle on a pair of blue shorts. The criminalist also tested a blue t-shirt but found no residue.
Concepcion Sells the Property
In September 2012, Concepcion sold the property. He filed an affidavit of death of a joint tenant—but crossed out the words "of joint tenant" in the title of the document—declaring that Linda was deceased. Concepcion executed a grant deed in his own name, as a widower, transferring the property to a new owner, for valuable consideration received. Certified records from the San Bernardino County Assessor's Office indicate the assessed value of the property was approximately $60,000 in 2012 and $110,000 in 2013, after the sale.
Arrest and Trial
Nearly three years after Linda's death, in March 2015, Concepcion was arrested and charged with murdering Linda in violation of section 187, subdivision (a). In addition, the People alleged that Concepcion discharged a firearm which caused Linda's death within the meaning of section 12022.53, subdivision (d). Concepcion pled not guilty and the case proceeded to trial.
At trial, the prosecution presented testimony from Georgina and several individuals from the coroner's office and sheriff's department who were involved in the investigation of Linda's death.
To reduce the need to call additional witnesses, the parties entered into several stipulations. First, they stipulated "[t]hat on July 12th, 2012, an autopsy was performed by Dr. Dennis Rhee . . . on Ms. Concepcion, that the cause of death was concluded to be a gunshot wound that entered her left mid back, it exited the lateral right breast, the trajectory was right to left, back to front, and the conclusion by the autopsy physician was she would have died within minutes."
Next, the parties stipulated that "a qualified DNA expert with the San Bernardino County Sheriff's Department Crime Lab, received a DNA swab from the defendant, Sigfredo Concepcion, and developed a DNA profile of the defendant. She also received DNA swabs from the .9 millimeter Star pistol. She recovered DNA from the trigger and trigger guard, the frame/slide and barrel, and the hammer safety catch and slide latch of the firearm. She developed a DNA profile of these samples. The defendant's DNA was identified as the . . . 'major contributor' of the DNA found on the firearm. Linda Concepcion was excluded as the major contributor. There was also a trace amount of other DNA on the gun, but the sample size was so small, that no DNA profile could be created. . . . No further conclusions could be made . . . regarding the trace, and it could not be compared with the DNA of the defendant or anyone else."
The parties stipulated that "a qualified expert in the field of firearms identification with the San Bernardino County Sheriff's Lab, compared the fired cartridge casing found in the chicken coop with a cartridge test fired from the .9 millimeter Star pistol. She concluded the Star pistol fired the cartridge . . . found in the chicken coop."
Finally, after the prosecution rested and to avoid requiring Sergeant Gibilterra to return to court, the parties stipulated that "[i]f Sergeant Gibilterra were called to testify as a witness [for the defense], he would testify that some shoe tracks were pointed out to him leading from east or toward the outbuildings. He looked at those shoe impressions, and together[,] with others[,] they felt that they were consistent with impressions of the responding fire department personnel." Thereafter, the defense rested without presenting any additional witnesses. Concepcion did not testify.
During closing arguments, the prosecutor argued that Concepcion killed Linda a few days before the divorce would have been final because he wanted to keep all the proceeds from the sale of the property for himself. Defense counsel argued the evidence did not establish beyond a reasonable doubt that Concepcion shot Linda, and that, alternatively, Linda may have been killed by an unidentified burglar.
Verdict and Sentencing
After deliberating for approximately two and a half hours, the jury returned a verdict. However, Concepcion had a medical appointment and, as a result, was not in court at the time. Following a discussion with the court, Concepcion's counsel agreed to waive Concepcion's right to be present when the verdict was read. The jury convicted Concepcion of first degree murder and found the additional firearm allegation true.
The court sentenced Concepcion to 25 years to life for the murder conviction, and 25 years to life for the firearm enhancement, for a total of 50 years to life.
DISCUSSION
I. Sufficiency of the Evidence on Premeditation and Deliberation
Concepcion asserts there was insufficient evidence of premeditation and deliberation to support the first degree murder conviction, and his conviction must be reversed because it violated his constitutional right to due process.
A. Applicable Legal Principles and Standard of Review
We review assertions regarding the sufficiency of the evidence for substantial evidence and affirm the judgment if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319; accord, People v. Maury (2003) 30 Cal.4th 342, 403.) Even where there is some evidence the defendant was not guilty, substantial evidence supports the verdict if the record as a whole contains evidence that is reasonable, credible and of solid value from which a rational jury could find the defendant guilty beyond a reasonable doubt. (People v. Booker (2011) 51 Cal.4th 141, 172 (Booker).)
A murder is premeditated and deliberate if it occurred as the result of preexisting thought and reflection, even if such reflection occurred only briefly in the moments before the murder, and not as the result of a rash or unconsidered impulse. (People v. Burney (2009) 47 Cal.4th 203, 235 (Burney); People v. Salazar (2016) 63 Cal.4th 214, 245.) Circumstantial evidence may be sufficiently substantial to support a finding of premeditation and deliberation so long as it furnishes "a reasonable foundation for an inference of premeditation and deliberation." (People v. Anderson (1968) 70 Cal.2d 15, 25 (Anderson).)
The California Supreme Court has found that evidence that may sustain a finding of premeditation and deliberation generally falls into three basic categories: (1) evidence of planning activities carried out by the defendant prior to the murder itself; (2) evidence indicating the defendant had a motive to kill the victim; and (3) facts regarding the manner of killing that suggest that the defendant must have acted in accordance with a preconceived design. (Anderson, supra, 70 Cal.2d at pp. 26-27.) However, this list is not exhaustive and the standard does not require evidence regarding any particular combination of these three factors to support a finding of premeditation and deliberation. (Burney, supra, 47 Cal.4th at p. 235.)
B. Analysis
Days before their divorce was final, Concepcion purposely armed himself with a loaded gun and went out to the chicken coop where he shot Linda in the back at close range—with no signs of any provocation or struggle. Viewing the evidence in the light most favorable to the jury's verdict, we conclude the evidence supports the jury's finding that Concepcion acted with premeditation and deliberation when he killed Linda.
Consideration of the Anderson framework supports the jury's finding that Concepcion was guilty of premeditated murder beyond a reasonable doubt. There was at least some evidence of planning activity, since Concepcion took the gun and the gun holster out of the house to a different location where he killed Linda. The box to the gun was found in the living room, and Linda's body was found in the chicken coop—approximately 150 feet away—with a bullet wound to the back. These facts support a reasonable inference that Concepcion removed the gun from the box inside the main house and then took it outside to the chicken coop with the express plan to kill Linda. (See People v. Adcox (1988) 47 Cal.3d 207, 240 [defendant taking gun to scene of crime and killing unarmed victim reasonably suggests defendant at least considered the possibility of murder in advance]; People v. Wells (1988) 199 Cal.App.3d 535, 540 [planning may occur in the moments before the shooting].)
There was evidence of a preexisting motive. A reasonable jury could conclude Linda was unhappy in her marriage, Concepcion was overbearing or controlling (at least in relation to Linda's relationship with her daughter), Linda planned to take her half of the sales proceeds from the property and move with her daughter after the divorce was finalized, and Concepcion had a personal and financial incentive to put an end to Linda's plans—which he did by killing Linda and then selling the property.
The manner of killing—a shooting in the back at close range and without evidence of provocation, confrontation or a struggle—further supports a reasonable inference of deliberation and premeditation. (See People v. Gonzales (2011) 52 Cal.4th 254, 295 (Gonzalez) ["The manner of killing—a close-range shooting without any provocation or evidence of a struggle—additionally supports an inference of premeditation and deliberation"]; People v. Bloyd (1987) 43 Cal.3d 333, 348 (Bloyd) [absence of evidence suggesting a struggle supported a first degree murder conviction]; People v. Marks (2003) 31 Cal.4th 197, 230 (Marks) [evidence indicating "a close-range shooting without any provocation . . . or evidence of struggle" supported first degree murder conviction].)
Relying on the same Anderson framework, Concepcion contends there is insufficient evidence of premeditation and deliberation. On the issue of planning activities, Concepcion argues there was no direct evidence indicating how the pistol got into the chicken coop, and that it could have been placed there on another occasion prior to the murder. Concepcion contends he had no motive to kill Linda—claiming instead that (1) the divorce was amicable and solely to allow Linda to obtain health insurance; and (2) he had no financial incentive to kill Linda under the divorce judgment. Relying primarily on People v. Boatman (2013) 221 Cal.App.4th 1253, 1268-1269 (Boatman), Concepcion asserts that the manner of killing is not sufficient on its own and that courts analyzing similar manners of killing have typically also required at least some evidence of planning and motive.
Specifically, Concepcion contends he was not entitled to the full sale proceeds of the property because the previously entered divorce judgment destroyed the joint tenancy with the accompanying right of survivorship. He further contends that there was no evidence he actually received the full sales proceeds, even though he was the sole signatory on the deed transfer where he acknowledged receiving valuable consideration, and that records from the county assessor's office indicate the value of the property was only $68,645 (i.e., less than the amount the prosecution relied on to support its financial motive theory). Finally, he contends there was no evidence he ever received legal advice regarding the legal effect of the judgment.
We are not persuaded by Concepcion's arguments, primarily because he invites us to accept his alternative view of the evidence which is incompatible with our standard of review. Although there was no direct evidence of how the gun got to the chicken coop, the jury was not required to conclude it was placed there on a different occasion. "While such a scenario might have been possible . . . , on review we do not reevaluate the credibility of witnesses or resolve factual conflicts; rather, we presume the existence of every fact in support of the verdict that could reasonably be inferred from the evidence." (Booker, supra, 51 Cal.4th at p. 173.) Moreover, based on Sergeant Gibilterra's testimony that he did not believe there had been a burglary, the jury could have rejected Concepcion's defense and concluded he actually staged the burglary and acted in accordance with a preconceived design sufficient to support a finding of premeditation and deliberation. (Anderson, supra, 70 Cal.3d at pp. 26-27.) Similarly, the jury was not required to accept Concepcion's claim that he was divorcing Linda solely to provide her with more affordable health insurance, or that he understood the legal distinctions his counsel makes on appeal regarding the impact of the judgment (and that he therefore had no motive to kill Linda). The jury could reasonably conclude Concepcion wanted to prevent Linda from leaving or that he wanted to keep any proceeds from the sale of the property for himself—regardless of whether the amount was $68,000, or $110,000 as the prosecutor argued based on the county assessor's records. Finally, we are not persuaded by Concepcion's attempts to distinguish Gonzalez, Bloyd, and Marks based on the additional evidence considered by the courts in those cases. (See Gonzales, supra, 52 Cal.4th at p. 295; Bloyd, supra, 43 Cal.3d at p. 348; Marks, supra, 31 Cal.4th at p. 230.) The governing standard does not require any particular combination of evidence regarding the three applicable factors, such that the evidence in one case need not be the same or similar to the evidence in another to be sufficient to support a conviction. (See Burney, supra, 47 Cal.4th at p. 235.)
We discuss the impact of the judgment post.
In sum, under the correct standard of review, we conclude substantial evidence supports the jury's finding that Concepcion acted with premeditation and deliberation when he shot Linda in the back.
II. Hearsay Testimony
Concepcion contends the trial court erred by allowing Georgina and Linda's friend (Allison C.) to testify to three statements that Linda made to them the month before the murder: (1) that she was unhappy in her marriage; (2) that she and Concepcion planned to sell the property; and (3) that she planned to move to Alaska after the divorce. Concepcion claims these statements should have been excluded as hearsay because they lacked probative value and posed a substantial risk of being improperly used as proof of his motive and intent. The People assert the testimony was relevant to Linda's state of mind at the time and to impeach Concepcion's statements indicating he and Linda were happy and only getting divorced "on paper" to provide Linda access to better health insurance. In addition, the People contend Concepcion forfeited any claim of error based on federal constitutional grounds because he failed to state an objection on those grounds at trial.
A. Applicable Legal Principles
A declarant's present state of mind can be admitted under two different theories: (1) as hearsay under the Evidence Code section 1250 exception for the declarant's present state of mind, and (2) as nonhearsay circumstantial evidence of a declarant's state of mind. (People v. Clark (2016) 63 Cal.4th 522, 590-591; see People v. Ortiz (1995) 38 Cal.App.4th 377, 389-390 [distinguishing state of mind hearsay from nonhearsay circumstantial evidence].) Both the trial court below, and the parties on appeal, focus on the state of mind exception to the hearsay rule under Evidence Code section 1250.
Evidence Code section 1250 allows a trial court to admit "evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health)." In order for this exception to apply, the statement must be offered either "to prove the declarant's state of mind, emotion, or physical sensation," or "to prove or explain acts or conduct of the declarant." (Evid. Code, § 1250, subd. (a).) However, such evidence must be relevant to be admissible. (People v. Armendariz (1984) 37 Cal.3d 573, 586-587.) Evidence is relevant to a disputed issue if it has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.)
We review the trial court's determination regarding the admissibility of evidence for an abuse of discretion. (People v. Jablonski (2006) 37 Cal.4th 774, 821.)
B. Forfeiture
Before considering whether the court erred in admitting Linda's out of court statements, we address the People's forfeiture argument. To preserve an evidentiary issue for appeal, the defendant must object to the introduction of the evidence at trial by stating the specific ground for the objection, and the objection must fairly inform the court of the specific reason the defendant believes the evidence should be excluded. (People v. Abel (2012) 53 Cal.4th 891, 924.) On appeal, the defendant may not argue that the evidence should have been excluded for any reason other than the reason stated at trial. (Ibid.)
Here, the prosecution first sought a ruling on the admissibility of Linda's statements to Georgina during pretrial motions and argued the statements fell within the exception to the hearsay rule set forth in Evidence Code section 1250. Defense counsel objected and argued that Linda's state of mind was not relevant to any issue in the case and that the prosecution was really trying to use the statements to improperly suggest that Concepcion was upset about Linda's plans to leave. After a brief discussion, the trial court stated it would allow Georgina and Allison to testify regarding Linda's statements that she was unhappy and planned to live with Georgina after the divorce.
The prosecutor elicited these statements during Georgina's testimony, and also asked whether Linda had indicated what was going to happen to the property after the divorce. Defense counsel objected again and argued the question about selling the property called for hearsay not covered by the exception the court had previously discussed. At a bench conference, defense counsel asserted any plans Linda had did not go to her state of mind and the prosecutor countered that Linda's intent to do something was state of mind evidence. The court reasoned that Linda's plan to take her portion of the money and move away was relevant to the contested issue of motive and overruled the objection.
Concepcion now raises many of these same arguments on appeal, asserting that the statements were inadmissible hearsay as they were not relevant to any contested issue. He goes on to argue that the admission of the evidence violated his constitutional rights by rendering the trial fundamentally unfair, and therefore prejudice should be assessed under the more stringent federal standard. Although he did not specifically make this constitutional argument at trial, it is based on the underlying assertions that the statements were inadmissible hearsay and were not relevant to the declarant's state of mind at a time relevant to a disputed issue. We therefore conclude that Concepcion did not forfeit these arguments. (See People v. Partida (2005) 37 Cal.4th 428, 434-436.)
However, Concepcion also includes a cursory argument that the introduction of Linda's statements violated his Sixth Amendment right to confrontation. As this argument raises a distinct and separate set of legal standards and he did not make a confrontation clause argument at trial, we agree that Concepcion forfeited this particular argument. (See People v. Rangel (2016) 62 Cal.4th 1192, 1216-1217 [defendant must specifically raise confrontation clause challenge as such a challenge requires the trial court to consider different legal standards than a hearsay objection].)
C. Merits
Turning to the merits, the trial court concluded the statements were admissible because they were relevant to Linda's state of mind at a time that was relevant to the disputed issue of motive. (See Evid. Code, § 1250.) We agree with this conclusion.
"Although motive is normally not an element of any crime that the prosecutor must prove, 'evidence of motive makes the crime understandable and renders the inferences regarding defendant's intent more reasonable.' " (People v. Riccardi (2012) 54 Cal.4th 758, 815 (Riccardi), disapproved on another ground in People v. Rangel, supra, 62 Cal.4th at p. 1216.) The People "were entitled to present evidence tending to establish motive. Without persuasive evidence . . . regarding motive, the jurors might believe there was nothing in the relationship . . . which would precipitate a murder." (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 595.)
The issue of motive was clearly a disputed issue in this case. The evidence that Linda was unhappy in her marriage, and that she intended to take her half of the sales proceeds from the property and move to Alaska, was relevant to the prosecution's theory that Concepcion was motivated to kill her—because he wanted to continue to control her, or because he stood to benefit financially by preventing her from leaving with her half of the sales proceeds (or both). Conversely, Linda's statements helped undermine Concepcion's claim that they were only getting a "paper" divorce, and the related argument that he lacked any financial motive to kill Linda.
The jury could also conclude Concepcion lied when he told Harold they were only divorcing for health insurance, thereby implying Linda was not unhappy in her marriage. The circumstances of Concepcion's statement—immediately after Linda's death and to someone who was not his friend—already were suspect. The jury reasonably could conclude his statements reflected a consciousness of guilt, which could further cause the jury to reject Concepcion's theory and instead conclude he was financially motivated to kill Linda as the prosecution argued. (See People v. Smithey (1999) 20 Cal.4th 936, 971-972 [victim's statements reflecting suspicion of defendant admissible to rebut defendant's claim they had a good relationship and victim invited defendant into her home]; People v. Kovacich (2011) 201 Cal.App.4th 863, 893 ["evidence showing 'quarrels, antagonism or enmity between an accused and the victim of a violent offense is proof of motive to commit the offense' "]; People v. Escobar (2000) 82 Cal.App.4th 1085, 1103 [victim's statements properly admitted to impeach defendant's claims about her state of mind].)
Concepcion asserts the evidence was relevant "only if there is independent, admissible evidence that [he] was aware of the decedent's state of mind before the crime and may have been motivated by it." (Riccardi, supra, 54 Cal.4th at p. 820.) However, here there was independent evidence that Concepcion was aware of Linda's state of mind: the two lived together and had filed for divorce, and the divorce decree specified that the property was to be sold and Linda and Concepcion were to split the proceeds. Based on this independent, foundational evidence, the jury could readily infer that Concepcion was aware of Linda's discontent and plans to move away. Moreover, Linda had recently returned from visiting her daughter in Alaska and Georgina explained Concepcion would become upset with Linda over their relationship. There was no indication that Linda had told Georgina, or anyone else, that she hid her actions, true feelings or intentions from Concepcion. Concepcion also argues any evidence that he was aware of Linda's state of mind was circumstantial, but the court in Riccardi stated only that there must be some evidence that the defendant was aware of the decedent's state of mind, not that there must be direct and conclusive evidence. (Ibid.)
As Georgina further explained, Concepcion was friendly toward Georgina following her mother's death, which she described as being out of character for him.
In sum, we conclude the trial court did not abuse its discretion in concluding that Linda's statements were relevant to establishing Concepcion's motive for shooting her, and such statements were therefore admissible under Evidence Code section 1250.
III. Prosecutorial Misconduct
Concepcion contends the prosecutor committed prejudicial misconduct during his closing argument by improperly shifting the applicable burden of proof and by misstating the applicable law and facts. The People assert Concepcion forfeited any argument that the prosecutor committed misconduct for any reason other than the prosecutor's characterization of the beyond a reasonable doubt standard of proof by failing to object to the remaining alleged mischaracterizations in the trial court, and that the prosecutor did not commit misconduct in any event.
Concepcion also asserts the prosecutor committed prejudicial misconduct by arguing Concepcion automatically got the entire property, by operation of law, following Linda's death. We address this argument separately in Section V, post, and conclude therein that the prosecutor did not commit prejudicial misconduct by doing so.
A. Applicable Legal Principles
A prosecutor has wide latitude to argue his or her case vigorously, but improper argument may amount to prejudicial misconduct if a prosecutor uses deceptive or reprehensible methods to persuade the jury or if the argument infects the trial with such unfairness as to make the conviction a denial of due process under the federal constitution. (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill); People v. Tully (2012) 54 Cal.4th 952, 1009-1010 (Tully).) A prosecutor need not act in bad faith to commit misconduct, but the defendant must have been prejudiced as a result. (People v. Bolton (1979) 23 Cal.3d 208, 213-214.)
To determine whether the alleged misconduct was sufficiently prejudicial as to require reversal, we consider "how the statement would, or could, have been understood by a reasonable juror" in the context of the entire argument. (People v. Benson (1990) 52 Cal.3d 754, 793.) The court will not infer that the jury drew the most, as opposed to least, damaging meaning from the disputed comments; instead, the defendant must establish a reasonable likelihood that the jury understood and applied the comments in an improper manner. (People v. Frye (1998) 18 Cal.4th 894, 970 (Frye), disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 420 (Doolin); People v. Spector (2011) 194 Cal.App.4th 1335, 1403.) The conduct is prejudicial under the federal constitution when it infects the trial with such unfairness to deny the defendant due process and is prejudicial under state law, even if it does not result in a fundamentally unfair trial, if it employs deceptive or reprehensible methods to attempt to persuade the jury. (People v. Powell (2018) 6 Cal.5th 136, 172.) A finding of prejudice under either standard requires reversal. (Ibid.)
B. Remarks Regarding Burden of Proof
During closing argument, the prosecutor said: "If you find yourself thinking, well, I have no doubt he's guilty, but there wasn't enough evidence on this or they should have done more of that, well, stop yourself right there. If you have no doubt he's guilty, then vote guilty." Defense counsel objected but the court overruled the objection, and the prosecutor continued, explaining that the reasonable doubt instruction "comes to play only if you have a doubt. If you have no doubt he did it, the concept of reasonable doubt isn't a problem for you. Just vote guilty. When does it come in as an issue? If you have a doubt, you have a doubt of his guilt, ask yourself, is that a reasonable doubt considering all the evidence, or just a possible doubt? We don't have to prove it beyond a possible doubt."
The prosecutor then offered an example. He told the jury that he used to play basketball but that he was now older and out of shape and no longer very good. He then asked if it was possible that he could be a professional basketball player anyway. He then presented a scenario where he could consistently make a basket from mid court and said it was therefore possible that he could become a professional NBA player but that it was not reasonable to believe that would actually happen. Finally, he said, "[t]he same way is true with the defendant in this case. If you add up all the evidence, you can always say, it's possible he didn't do it, but it's not reasonable to believe that."
Concepcion contends the prosecutor's use of the basketball example was akin to the misconduct identified in People v. Otero (2012) 210 Cal.App.4th 865 (Otero) and People v. Centeno (2014) 60 Cal.4th 659 (Centeno). In Otero, the prosecutor showed the jury a power point depicting the outlines of the states of California and Nevada, but with inaccurate landmarks designated on each outline, and a statement that read, " '[e]ven with incomplete and incorrect information, no reasonable doubt that this is California.' " (Otero, supra, at p. 869.) The appellate court found the use of the power point improper, but concluded the error was harmless because the trial court had instructed the prosecutor to take it down and had given a curative instruction about the appropriate standard to prove guilt beyond a reasonable doubt. (Id. at pp. 873-874.)
The prosecutor in Centeno used a similar tactic; she showed the jury a map of California with multiple inaccuracies but pointed out that, despite the obvious errors, there was no reasonable doubt that the state on the map was California. (Centeno, supra, 60 Cal.4th at p. 665.) She then told the jury that they could find the defendant guilty even if there was missing or inaccurate information, as there was on the map, and that they should reject any possible but unreasonable alternatives and make a reasonable decision based on the totality of the evidence. (Id. at pp. 665-666.) On appeal, the California Supreme Court considered whether the use of the map constituted prejudicial misconduct. The court discussed the holding in Otero and other similar cases, and concluded the prosecutor committed two errors. First, the use of an iconic image unrelated to the facts of the case (such as the shape of California) was a flawed way to demonstrate the standard of proving guilt beyond a reasonable doubt. (Centeno, supra, at p. 669.) The court explained that such images are "immediately recognizable and irrefutable" and thus necessarily draw on the jurors' own knowledge rather than the evidence presented at trial, thereby trivializing the deliberative process and encouraging jurors to guess or jump to a conclusion. (Ibid.) Second, the prosecutor misstated the burden of proof by creating "the impression that so long as [the prosecutor's] interpretation of the evidence was reasonable, the People had met their burden." (Id. at p. 672 [concluding it was "error for the prosecutor to suggest that a 'reasonable' account of the evidence satisfies the prosecutor's burden of proof"].)
When read in context, we conclude the prosecutor did not commit misconduct or diminish the applicable burden of proof by using the basketball example. While the prosecutors in Otero and Centeno used iconic images to suggest the jurors could use their own knowledge to fill in evidentiary gaps, the prosecutor here did not use the basketball example to encourage the jury to "guess or jump to a conclusion" in its determination. (Centeno, supra, 60 Cal.4th at p. 669.) Nor did the prosecutor suggest the jury should convict based on a mere reasonable account of the evidence. (Id. at p. 673.) Instead, the prosecutor used the basketball example to highlight the difference between the governing burden of proof—beyond a reasonable doubt—and any possible doubt. He then argued the jury did not have to find that Concepcion was not guilty based on an alternative explanation—the unidentified burglar theory—that was remotely possible but not reasonably believable based on the evidence. The Supreme Court in Centeno expressly acknowledged this type of argument is permissible. (Id. at p. 672 ["It is permissible to argue that the jury may reject impossible or unreasonable interpretations of the evidence and to so characterize a defense theory."]; see Pen. Code, § 1096 [reasonable doubt " 'is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt' "].)
Moreover, the trial court instructed the jury as to reasonable doubt, and that they should follow those instructions over anything the parties argued during closing arguments. We presume the jury understood and followed the court's instructions. (See People v. Martinez (2010) 47 Cal.4th 911, 957 (Martinez).) Given those instructions, and the prosecutor's limited use of the basketball example, we are not persuaded that the argument prevented the jury from applying the appropriate burden of proof in this case. (See Otero, supra, 210 Cal.App.4th at pp. 873-874; see also People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1268-1269 [non-prejudicial misconduct where prosecutor used a puzzle of the Statue of Liberty with two missing pieces to suggest the jury could convict despite missing evidence]; Frye, supra, 18 Cal.4th at pp. 960, 970 [prejudice based on an erroneous description of the burden of proof requires "a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner"], disapproved on another ground in Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)
C. Additional Misstatements
Concepcion also contends the prosecutor made several other misrepresentations of law and fact during his closing argument. As he did not object to these additional statements, however, the People assert that he has forfeited any such argument on appeal.
1. Forfeiture
To preserve a claim of prosecutorial misconduct on appeal, a defendant must object to the alleged misconduct at trial, stating the specific grounds for the objection, and request that the court admonish the jury to disregard the problematic statement or conduct. (People v. Ayala (2000) 23 Cal.4th 225, 284 (Ayala).) Failure to object or seek an admonition results in forfeiture. (Ibid.) Here, Concepcion objected to the prosecutor's characterization of the beyond a reasonable doubt standard of proof, but did not object to the other alleged misstatements of law or fact that he now alleges were misconduct. Because Concepcion did not object to these statements as misconduct, he did not preserve the prosecutorial misconduct argument on appeal. (Ibid.; Gonzales, supra, 52 Cal.4th at p. 318.)
Concepcion argues he did object to the prosecutor's characterization of the burden of proof, and we agree he has not waived that particular argument, but his objection to the prosecutor's comments in that regard does not avoid forfeiture with respect to the other specific statements he now asserts were also misconduct. (See Gonzales, supra, 52 Cal.4th at p. 318.) He further contends that additional objections would have been futile but since he never objected to the prosecutor misstating the facts or the law, with the exception of the burden of proof discussion, there is no basis to conclude further objections would have been futile. To the contrary, the trial court appears to have taken defense counsel's objections seriously throughout the proceedings as it held lengthy discussions with counsel regarding such objections at various points in the trial, including when defense counsel objected to the prosecutor's characterization of the burden of proof.
As Concepcion did not object to the additional statements that he now argues constituted prosecutorial misconduct and we are not persuaded that any such objection would have been futile, we conclude that he forfeited these assertions on appeal.
2. Merits
We turn to the merits in any event, in part because Concepcion raises an associated ineffective assistance of counsel claim. Even if Concepcion had not forfeited his arguments with respect to these additional statements, we would conclude that these alleged misrepresentations did not constitute prejudicial misconduct.
A prosecutor has leeway to vigorously argue his or her case during closing. (See Hill, supra, 17 Cal.4th at p. 819; Tully, supra, 54 Cal.4th at pp. 1009-1010.) However, it is generally improper for a prosecutor to misstate the evidence presented at trial, assert facts not in evidence, or base legal arguments on facts not in evidence during closing arguments. (People v. Linton (2013) 56 Cal.4th 1146, 1205-1207; Hill, at pp. 823, 828.)
We address each of Concepcion's claims of error in turn, and we conclude there was no prejudicial error.
Concepcion asserts the prosecutor misstated evidence regarding the time Linda's church services ended, and the distance between the church and the property. However, Harold only estimated both, and neither statement by the prosecutor was significantly different from those estimates. Harold stated the church started at 11:00 a.m. and that the service was supposed to be one hour, but also that it could go longer and that it typically ended around 12:30 p.m. Further, he said that Linda's house was three to four miles, or a seven- or eight-minute drive, from the church. During closing argument, the prosecutor stated services ended around 12:00 p.m. and Linda's house was five to 10 minutes away. These estimates were reasonable given Harold's testimony. Moreover, defense counsel certainly could have corrected any discrepancy during his closing, and the jurors had access to Harold's exact testimony.
Concepcion argues the prosecutor committed misconduct by suggesting the casino was about an hour away from the property, when there was no direct evidence of the distance between the two. However, the prosecutor was referring to a local casino and there was no misconduct in suggesting the jurors could rely on their general common knowledge of the surrounding geography. (See People v. Ortiz (2012) 208 Cal.App.4th 1354, 1365-1366 [although "there was no evidence presented by the People regarding the current market value of the [stolen] BMW, the jurors could rely on their common knowledge that late-model BMW's have a substantial market value"]; People v. West (1939) 34 Cal.App.2d 55, 59 [jury could have used their common knowledge of well-known street names in the city to establish venue was in Los Angeles county].) Moreover, the stated travel time appears consistent with the evidence based on the surveillance video (capturing Concepcion departing the casino) and the reasonable inference, as discussed below, that the first responders arrived on the scene around 10:29 p.m. Again, defense counsel could have argued any conflicting theories of the timeline in his own closing, and we are not persuaded that the prosecutor unfairly misled the jury.
Concepcion takes issue with the prosecutor's statement that Concepcion called 911 when he got home from the casino, that the first responders arrived around 10:40 p.m., and that the call was reported as a heart attack. However, these were all reasonable inferences based on the evidence. White testified he arrived around 2:29 p.m., but as discussed ante in footnote 3, the time was clearly a misstatement or error in the transcript as all other evidence indicates authorities arrived on the scene in the late evening, after Concepcion returned home from the casino. Moreover, White testified that when he arrived, Concepcion was distraught and pointed him to the shed, suggesting that Concepcion was expecting emergency responders and, thus, that he was the one that called 911. Finally, White recalled that the call that came in was for CPR, at least suggesting that the initial report was a potential heart attack. The prosecutor's statements were supported by White's testimony and were well within the prosecutor's leeway to argue his theory of the case during closing.
Regarding the initial investigation of the scene, Concepcion argues the prosecutor stated Exhibit 77, a photo showing the back window with the screen removed, was taken on July 13 when in fact no one testified to the date of the photo. The prosecutor's point was simply that Exhibit 77 differed from Exhibit 81, a similar photo of the same window taken on July 9, indicating someone had tampered with the crime scene. A crime scene specialist, Kimberly Shapiro, that was present on July 9 but not on July 13, testified that she did not recall there being anything unusual about the window and that Exhibit 81 accurately reflected her recollection of the window on that day, and also confirmed that she was not present on July 13 when Exhibit 77 "was supposed to have been taken." In this context, there was at least some inference that Exhibit 77 was taken at a different time, perhaps on July 13, and, in any event, the exact date was not particularly significant. We are not persuaded that the prosecutor unfairly misled the jury by including the date.
Concepcion asserts the prosecutor argued facts not in evidence when he stated Sergeant Gibilterra said Concepcion was riding around in a golf cart on July 9; the gun and holster were hidden "underneath a bunch of stuff in the chicken coop"; there was not any property missing from Concepcion's house; and Concepcion called Georgina at 5:00 a.m. and told her he was going to tear down the chicken coop. The People concede that it was Georgina and not Sergeant Gibilterra who saw Concepcion in the golf cart on July 9, but the swapping of names was a mere misstatement of minimal significance and the testimony of both witnesses was available to the jury. Further, Georgina testified she spoke to Concepcion on the phone on July 10 regarding Linda's death and, separately, that he told her he wanted to tear down the chicken coop. The precise timing of the statement was not particularly significant, and the prosecutor did not assert that it was. The remaining statements were all reasonable inferences that could be taken from the evidence presented at trial.
Concepcion argues the prosecutor erred by asserting the reason that there was no gunshot residue on the remaining clothing collected by Sergeant Gibilterra was because Concepcion was not wearing that clothing when he killed Linda. These statements were reasonable argument based on the casino surveillance footage and the fact that the expert did not find any gunshot residue. Next, Concepcion argues the prosecutor's statement that "logic tells you that the trace DNA evidence [on the gun] was left by someone who touched that gun a long time ago" and that "[c]ommon sense tells you biological material will fade away over time" was in conflict with the stipulation that "[n]o further conclusions could be made regarding the trace DNA." The parties simply stipulated to what the expert would have testified to and that did not preclude the prosecution from making additional commonsense arguments regarding the evidence. Again, defense counsel could counter these arguments, and the jury could weigh them against the evidence, including the stipulation.
Concepcion asserts the prosecutor committed misconduct by arguing Georgina and another witness, George M., could have testified to evidence which had been excluded during motions in limine. Specifically, the court precluded witnesses from testifying that Concepcion had physically abused Linda. During closing argument, the prosecutor summarized some of the testimony from Georgina and George, including their testimony that Concepcion let it slip that Linda had been shot before the police had disclosed the manner of death. The prosecutor then argued:
"Now, [defense counsel] also says Georgina [R.] is basically lying - essentially lying about the statement that the defendant said. Apparently George [M.] as well.
"[George is] saying that the defendant says [Linda] was shot in that conversation with [Ms. G.]. Ask yourself if those two, Georgina [R.] and George [M.], are just so evil, they are going to perjure themselves to convict an innocent guy with you, why would they stop it at that?
"If you are going to perjure yourself, conspire to convict somebody, why not do it right and say, I saw the defendant threaten her with a gun? I saw the defendant beat her up? He told me he was going to kill her? They didn't say anything like that."
Concepcion contends the prosecutor engaged in the type of "foul play denounced by the court" in Berger v. United States (1935) 295 U.S. 78, 88. The prosecutor did not seek to introduce any evidence in violation of the court's in limine ruling, and he was not suggesting there was admissible evidence that Concepcion "beat up" Linda or threatened to kill her—he was suggesting such testimony would be fabricated. We disagree this brief argument is at all comparable to Berger.
In Berger, the prosecutor "was guilty of misstating the facts in his cross-examination of witnesses; of putting into the mouths of such witnesses things which they had not said; of suggesting by his questions that statements had been made to him personally out of court, in respect of which no proof was offered; of pretending to understand that a witness had said something which he had not said and persistently cross-examining the witness upon that basis; of assuming prejudicial facts not in evidence; of bullying and arguing with witnesses; and, in general, of conducting himself in a thoroughly indecorous and improper manner." (Berger, at p. 84.)
Concepcion argues the prosecutor erred by stating that Linda planned to live on the property just long enough after the divorce to sell it, but this assertion is supported by Georgina's testimony that Linda planned to sell the property and move to Alaska with her share of the proceeds by the end of the year.
With respect to all of the statements he characterizes as prosecutorial misconduct, Concepcion asserts the jury "almost certainly accepted [the prosecutor's arguments] as true" but there is no sound basis for this assertion. To the contrary, the court properly admonished the jury that argument was not evidence, and we presume the jury understood and followed that instruction. (See Martinez, supra, 47 Cal.4th at p. 957.) We conclude the prosecutor's statements during closing arguments were within the leeway afforded him to strenuously argue his case and, accordingly, that the statements did not unfairly mislead the jury.
IV. Ineffective Assistance of Counsel
Concepcion also asserts his own counsel erred in several ways, and therefore provided ineffective assistance of counsel.
In addition to the alleged errors discussion in this section, Concepcion asserts his counsel was ineffective for failing to object to the prosecutor's request that the trial court take judicial notice of certain principles of joint tenancy law. We address this argument separately in Section V, post, and conclude therein that Concepcion has not met his burden to prove his counsel was ineffective for failing to object.
A. Applicable Legal Principles
To prove ineffective assistance of counsel, Concepcion must prove his attorney's performance was well below the standard of reasonableness under prevailing professional norms and that the result would have been more favorable to him but for his attorney's unreasonably substandard performance. (Strickland v. Washington (1984) 466 U.S. 668, 686-688 (Strickland); People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.) On appeal, we assess counsel's tactical decisions under the circumstances in which the decisions were made and do not second-guess them in hindsight. (People v. Scott (1997) 15 Cal.4th 1188, 1211-1212 (Scott).) We give deference to trial counsel's tactical choices and presume counsel's decisions were proper. (Strickland, supra, at pp. 691-694; People v. Hinton (2006) 37 Cal.4th 839, 876.)
"Ineffective assistance of counsel claims are rarely cognizable on appeal," as the record on appeal rarely provides any information regarding the strategy behind the trial counsel's tactical decisions and course of conduct throughout the trial and it is generally inappropriate for the appellate court to speculate as to such matters. (People v. Silvey (1997) 58 Cal.App.4th 1320, 1329; People v. Wilson (1992) 3 Cal.4th 926, 936 (Wilson).) Where the record is silent as to counsel's motivation, the court must reject an ineffective assistance of counsel claim "unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation." (Scott, supra, 15 Cal.4th at p. 1212.) Such claims are usually more appropriate for habeas proceedings, where counsel may be given an opportunity to explain his or her conduct. (Wilson, supra, at p. 936.)
B. Failure to Object to Prosecutor's Misconduct
Concepcion contends his counsel was ineffective for failing to object during the prosecutor's closing arguments. The burden to prove ineffective assistance of counsel is rarely met based on a failure to object to a prosecutor's argument as the decision not to do so is a tactical one that is afforded substantial deference. (See People v. Huggins (2006) 38 Cal.4th 175, 252.) As we have concluded that the prosecutor did not commit any prejudicial misconduct during his closing argument, Concepcion's counsel was not ineffective for failing to object.
C. Failure to Deliver Evidence as Promised in Opening Statement
Concepcion contends his counsel provided ineffective assistance by failing to deliver evidence as promised during his opening statement. Whether such a failure "amounts to ineffective assistance of counsel is a fact-based determination that must be assessed on a case-by-case basis." (People v. Stanley (2006) 39 Cal.4th 913, 955 (Stanley).)
Concepcion contends no evidence was produced at trial to support the following italicized portions of his counsel's opening statement:
"This incident that we are discussing happened on the 8th of July, 2012. My client - it's a Sunday, and my client gets up in the morning. And he and his wife live in this place over in Phelan, about six acres. Apparently they do scrapping, things like that.
"So they get up that day, and Ms. Concepcion goes to church like she usually does. My client goes down the hill, looks for swap meets, flea markets, all those kinds of things. He goes down the hill and conducts whatever business he has, tries to find whatever he can find, kind of wanders around.
"Then at a certain time he goes over to the San Manuel Casino. Not to gamble. Not to see a show. But they have some free, you know, stuff. He can get coffee and orange juice, and he can watch the big screen TVs. So he does that. The casino camera shows he comes in around 3:00 in the afternoon, and he's there and doesn't leave the parking lot
until about 9:30 at night. Comes back up the hill and he gets to his house somewhere around 10:30.
"He drives in. The first thing he noticed is his wife's car is not where it usually goes. His wife's car was in an odd place. So he pulls in and goes over to his wife's car to see what is going on. And he looks in the car, and there is his wife's keys sitting on the seat and her cell phone which is open, and that, of course, is something you wouldn't expect.
"So he starts to look around, and he goes into the chicken coop. We are going to call it the chicken coop . . . with a roof and walls, and somebody just cut it right down the middle. . . . But when he laid it down on its side, it formed a shed . . .
"And there was all kinds of junk in there . . . And there's kind of a walkway down the middle of the junk, and back in the back of the chicken coop was his wife laying on the ground. He immediately called 911, the 911 operator says try to give her some CPR, and of course he's unable to do that.
"The evidence will show that at this point the paramedics arrived . . . . When the sheriffs get there, the sheriffs are asking, have you been in the house yet? He says no. He gives the sheriffs a key, and the sheriff goes over to his house. . . . [¶] . . . [¶] He goes over to the house, and the door frame is splintered.
"Later, when they started taking all of the things out of the chicken coop . . . They also found a holster and a firearm, and that firearm belonged to Mr. Concepcion. And with the other firearms that were on the blanket inside the door of his house, it had been taken from its place in the house.
"Mr. Concepcion told the police officers, yeah, that gun, I always kept it by the head of my bed down on the floor under the headboard, and he told them about that.
"The clothing that he had on at the time he had discarded, the sheriffs got ahold of that, and they did the gunshot residue test on that.
"Now, the evidence will show that my client comes home from the casino. He's got a jacket on. He's got shorts on, and he walks on that narrow path in the chicken coop back to where his wife is laying. In other words, he walks right through where all this gunshot residue has supposedly been placed."
As an initial matter, contrary to Concepcion's assertions, a number of these statements were supported by the evidence. Regarding counsel's description of the chicken coop, there were photographs of the property (including the chicken coop) in evidence and it is difficult to surmise how this description would have prejudiced Concepcion even without evidence to support it. Similarly, there were photographs and testimony concerning the disarray inside the chicken coop and the splintered door frame on the main house and, with respect to the clothing Concepcion was wearing, there was video surveillance from the casino and photographic evidence taken at the scene.
It is apparent that defense counsel was attempting to tell the jury a narrative of what happened on the day of the murder. In that context, a reasonable member of the jury likely would have understood that counsel may have filled in certain details that he thought the jury would be able to infer from the evidence, even if there was no direct evidence of the same. For example, White testified that he responded to a call that came in as a CPR call, and that when he arrived, Concepcion was distraught and pointed him to the chicken coop, from which the jury might infer that Concepcion had placed the call and had attempted CPR while on the phone. Further, there was evidence of the position of Linda and Concepcion's cars at the scene following Linda's death and that Linda's cell phone and purse were on the seat of the car, from which the jury could infer that Concepcion saw Linda's car and these items on the seat when he arrived home.
It also is clear from the record that defense counsel, and the trial court, expected the prosecution to enter into evidence at least portions of the sheriff's interviews of Concepcion. Defense counsel had initially objected to the introduction of the statements and argued that the interviews were not voluntary, but the court had stated it would allow the prosecution to introduce them. Had the prosecution done so, that evidence likely would have included that Concepcion typically spent his Sunday mornings at the swap meet, that Concepcion called 911 on the evening of July 8, that the detectives originally thought Linda's death was the result of a heart attack, and that Concepcion typically kept the Star firearm under the headboard of his bed and believed it was still there after the shooting. Indeed, Detective Doemner testified to many of these statements during a pretrial hearing. As he reasonably believed the prosecution intended to introduce this evidence, defense counsel made a reasonable tactical decision to include the evidence in his opening statement. While defense counsel may have anticipated that Concepcion would not testify, it would have been much more difficult to have anticipated what evidence the prosecution would or would not offer, particularly where, as here, the court had stated it would allow the prosecution to introduce them.
Concepcion points to a number of cases where defense counsel failed to deliver on promises made during opening, but none resembles this case. Most of the cited cases involved habeas petitions as opposed to direct appeals. (See People v. Corona (1978) 80 Cal.App.3d 684 (Corona); English v. Romanowski (6th Cir. 2010) 602 F.3d 714 (Romanowski); United States ex rel. Hampton v. Leibach (7th Cir. 2003) 347 F.3d 219 (Leibach); Ouber v. Guarino (1st Cir. 2002) 293 F.3d 19 (Ouber); Anderson v. Butler (1st Cir. 1988) 858 F.2d 16 (Anderson); United States v. Gonzalez-Maldonado (1st Cir. 1997) 115 F.3d 9 (Gonzalez-Maldonado.) These cases are also factually distinguishable. Concepcion's counsel did not promise the jury that the defendant himself would testify and provide an alibi or deny his involvement in Linda's murder as counsel did in Corona, supra, at page 725, Romanowski, supra, at page 729, Leibach, supra, at page 259, and Ouber, supra, at page 27; nor did he promise to provide expert psychiatric testimony regarding the defendant's state of mind as defense counsel did in Anderson, supra, at page 17 and Gonzalez-Maldonado, supra, at pages 14-15.
Whether the failure to deliver on promises made during the opening statement amounts to ineffective assistance of counsel is a fact-based determination. (Stanley, supra, 39 Cal.4th at p. 955.) Here, defense counsel's opening statement may have been more accurate if he had avoided filling in unnecessary details of the story, or had he not relied so heavily on the evidence he expected the prosecution to present. However, counsel was not afforded an opportunity to explain his decisions. Based on the record before us, we are not persuaded there could be no satisfactory explanation for counsel's decisions, or that the outcome would have been any different absent these remarks. As such, Concepcion has not met his burden on appeal to prove ineffective assistance of counsel based on the opening statement. (See Scott, supra, 15 Cal.4th at p. 1212.)
Concepcion also points to three statements his counsel made during closing argument that he contends were not supported by the evidence: (1) that Concepcion placed a little shirt under Linda's head and did what the 911 operator told him to do; (2) that there were no cars at the home on Sunday morning indicating that Concepcion also was not home; and (3) that Concepcion kept his gun near the head of the bed. These statements are similar to the statements already addressed in the context of the opening statement. As with the opening, we are not persuaded there can be no satisfactory explanation for counsel's strategy or that the outcome would have been any different in the absence of the statements. (See Scott, supra, 15 Cal.4th at p. 1212.)
D. Failure to Impeach Georgina
Concepcion asserts his counsel was ineffective for failing to impeach Georgina with a previous accusation that she stole from Concepcion. The prosecutor asked the trial court to exclude evidence that "[Georgina] had stolen various items, including guns and jewelry" from Concepcion in November 2006; the court ruled defense counsel could ask Georgina, "Isn't it true that you took something that [Concepcion] did not tell you you could take, and you're mad at him because he called the police." Counsel did not ask Georgina about the incident, but this was a reasonable tactical decision. The court had limited the question defense counsel was permitted to ask, and there was a reasonable chance that Georgina would deny the allegations. Without Concepcion's testimony regarding the incident or any further proof that Georgina had in fact taken anything, the jury could just as easily have concluded that the allegations were false and interpreted the evidence as further proof of Concepcion's controlling nature. We therefore conclude Concepcion's counsel was not ineffective for failing to ask Georgina about the incident during his cross-examination.
During the motion in limine on this issue, the court and counsel discussed the fact that Georgina denies committing a theft.
E. Agreement to Stipulate to Sergeant Gibilterra's Shoeprint Testimony
Concepcion contends his counsel was ineffective for agreeing to the stipulation regarding Sergeant Gibilterra's shoeprint testimony. We are not persuaded that there can be no satisfactory explanation for counsel's strategy in accepting the stipulation or that the outcome would have been any different had counsel insisted that Sergeant Gibilterra return to the stand. (See Scott, supra, 15 Cal.4th at p. 1212.)
Sergeant Gibilterra had already testified once about the shoeprints found at the scene. When the court asked him, over the phone, about the additional testimony defense counsel was seeking on rebuttal—whether the distance between the shoeprints was indicative of someone running—he stated that he could not recall the answer. Under these circumstances, defense counsel reasonably could conclude no further information helpful to the defense would be obtained from the witness. In fact, defense counsel attempted to use the information from the stipulation to Concepcion's advantage, by suggesting the investigation was sloppy or incomplete. Counsel noted the prosecution had an available "expert" who could have examined the shoeprints (and tire marks) at the scene, but Sergeant Gibilterra and others instead merely "felt that [the shoe impressions] were consistent with impressions of the responding fire department personnel"—based on visual observation alone. Had counsel not entered into a stipulation, it is possible Sergeant Gibilterra would have been better able to defend the investigation and counsel could not make this point.
F. Failure to Request CALCRIM No. 3400
Concepcion contends his counsel committed misconduct by failing to ask the court to instruct the jury in accordance with CALCRIM No. 3400, which reads: "The People must prove that [Concepcion] was present and committed the crime[s] with which [he] is charged. [Concepcion] does not need to prove [he] was elsewhere at the time of the crime. If you have a reasonable doubt about whether [Concepcion] was present when the crime was committed, you must find [him] not guilty." This is a pinpoint instruction, and the more general instruction on reasonable doubt—CALCRIM No. 220—was read to the jury. We have no basis to know why defense counsel did not ask for this pinpoint instruction as well but note that counsel focused more on the alternative burglar theory than on Concepcion's casino alibi. Moreover, the prosecution presented a timeline, which the jury presumably accepted, in which Concepcion killed Linda shortly after she arrived home from church and then went to the casino in an attempt to establish an alibi. Even on appeal, Concepcion admits the alibi covered only "most" of the coroner's estimated time of death. On this record, we cannot conclude that there was no reasonable basis for counsel's decision not to seek this pinpoint instruction or that the outcome would have been any different if he had sought the extra instruction. (See Scott, supra, 15 Cal.4th at p. 1212.)
G. Failure to Object to Any Arguments Considered Forfeited Herein
Finally, Concepcion asserts his counsel was ineffective for failing to object to the extent we consider any arguments forfeited on those grounds herein. While we did find some narrow areas of forfeiture herein, we also addressed those claims on the merits and determined there was no resulting prejudicial error. Thus, we cannot conclude that counsel's failure to object in these limited instances had any impact on the ultimate outcome of the case. (See Scott, supra, 15 Cal.4th at p. 1212.)
H. Cumulative Effect of Ineffective Assistance
Concepcion asserts the cumulative effect of each of these alleged incidences of ineffective assistance of counsel was prejudicial. On this record, we cannot conclude there was no reasonable basis for any of the individual tactical decisions made by defense counsel, or that the outcome would have been any different had he made different decisions. Thus, Concepcion has not met his burden to prove prejudicial misconduct on appeal, even if we consider the totality of defense counsel's tactics. (See Scott, supra, 15 Cal.4th at p. 1212.)
V. Alleged Errors Relating to the Dissolution Judgment
Concepcion raises various arguments that relate to the parties' dissolution judgment. Specifically, he contends (1) his counsel was ineffective in failing to object to the prosecutor's request for judicial notice of joint tenancy law principles (because those principles are inapplicable based on the judgment); and (2) the prosecutor committed misconduct by stating Concepcion automatically got the entire property, by operation of law, following Linda's death (because that argument is contrary to the judgment). As already discussed ante, Concepcion further contends that—under a correct interpretation of the law—the judgment does not support the prosecutor's theory that Concepcion was financially motivated to kill Linda. We reject Concepcion's claims of error relating to counsels' and the court's treatment of the judgment and joint tenancy principles.
A. Community Property and Joint Tenancy Law
All property acquired in joint form during marriage is presumed to be community property, including property held in joint tenancy. (Fam. Code, § 2581.) This presumption applies only for purposes of property division at the time of dissolution of the parties' marriage. (Ibid.; see Estate of Mitchell (1999) 76 Cal.App.4th 1378, 1386.)
"[T]he distinguishing characteristic of a joint tenancy is that each tenant has a right of survivorship, by which, upon the death of the other tenant, the survivor will automatically succeed to the entire property." (Dang v. Smith (2010) 190 Cal.App.4th 646, 660.) The right of survivorship lasts until the joint tenancy is severed. "In general, a joint tenancy may be severed by (1) a unilateral conveyance of the interest to a third party or recordation of a writing (Civ. Code, § 683.2), (2) an express or implied agreement of the joint tenants [citation], (3) a judgment [citation], or (4) an execution sale [citation]." (Estate of Layton (1996) 44 Cal.App.4th 1337, 1339-1340.)
The effect of a spouse's death during the pendency of a dissolution action depends on the procedural posture of the case. It has been commonly stated that a spouse's death abates a cause of action for dissolution (see In re Marriage of Hilke (1992) 4 Cal.4th 215, 220), but it is important to know what has taken place in the divorce proceeding prior to the spouse passing away. "Where a party dies before the marriage is dissolved, the dissolution action must abate and the court can make no further orders with respect to property rights, spousal support, costs or attorney fees." (In re Marriage of Allen (1992) 8 Cal.App.4th 1225, 1229, italics added.) By contrast, if a party dies after marital status has already been terminated, a spouse's death does not preclude the court from exercising its reserved jurisdiction over property issues. (In re Marriage of Hilke, supra, at p. 220 ["The death of one of the spouses abates a cause of action for dissolution, but does not deprive the court of its retained jurisdiction to determine collateral property rights if the court has previously rendered judgment dissolving the marriage."].)
Because there is a six-month waiting period before parties can terminate their marital status (Fam. Code, § 2339), a final dissolution judgment may be entered on a date that differs from, and is earlier than, the date on which marital status terminates. The court in Estate of McDaniel (2008) 161 Cal.App.4th 458 addressed the impact of a spouse's death during this window—after entry of judgment and prior to termination of the parties' marital status. In that case, the judgment dividing the parties' marital property was entered on July 25, the parties' marital status was set to terminate on October 29, and the husband died on September 23—after the property division but before final termination of the parties' marital status. (Estate of McDaniel, supra, at pp. 460-461.) The Court of Appeal held that the wife was not entitled to inherit from the deceased husband's estate due to operation of the judgment. (Id. at p. 462.) The court reasoned that the wife was not a "surviving spouse" as defined under Probate Code section 78, subdivision (d), because the judgment was final as to the parties' marital property rights prior to the husband's death. (Estate of McDaniel, supra, at pp. 462-463; see also Fam. Code, § 2344, subd. (a) ["The death of either party after entry of the judgment does not prevent the judgment from becoming a final judgment under Sections 2339 to 2343" of the Family Code.].)
Probate Code section 78, subdivision (d) provides in relevant part that a "surviving spouse" does not include "[a] person who was a party to a valid proceeding concluded by an order purporting to terminate all marital . . . property rights."
B. Failure to Object to Request for Judicial Notice of Joint Tenancy Principles
Concepcion asserts his counsel was ineffective in failing to object to the prosecutor's request that the trial court take judicial notice of certain legal principles regarding joint tenancy.
Evidence Code section 451 generally requires a court to take judicial notice of the law. (See Evid. Code, § 451 ["Judicial notice shall be taken of the following: (a) The decisional, constitutional, and public statutory law of this state . . . ."].) However, judicial notice is confined to matters that are relevant. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063.)
Here, the trial court took judicial notice, and informed the jury, of the following: "Under California law, upon the death of one of two joint tenants, the survivor becomes the sole owner of the property by operation of law. An agreement by husband and wife to divide the proceeds upon the sale of property owned as joint tenants ends the joint tenancy." There is no dispute that these are accurate statements of law—they briefly summarize the right of survivorship and one way that a joint tenancy can be severed. However, Concepcion argues they were nonetheless improper, and his counsel should have objected, because the parties' joint tenancy was dissolved by the judgment of dissolution, thereby rendering these statements of law irrelevant. Had counsel objected, Concepcion contends, the court would not have granted the prosecutor's request for judicial notice.
"A court reviewing the conduct of counsel must in hindsight give great deference to counsel's tactical decisions." (People v. Holt (1997) 15 Cal.4th 619, 703.) "Reviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission." (People v. Fosselman (1983) 33 Cal.3d 572, 581 (Fosselman).) "An attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel." (People v. Kelly (1992) 1 Cal.4th 495, 540.)
Here, Concepcion's counsel could have had tactical reasons for not objecting to the prosecutor's request for judicial notice. We acknowledge the summary provided to the jury was incomplete in presenting only a portion of the potentially relevant legal principles affecting the operation of the dissolution judgment. Concepcion's counsel could have objected and notified the court of the need to present a more complete and accurate summary of the governing legal principles. But counsel may have concluded it was unnecessary to do so because most of the same arguments—such as the distinction between terminating marital status and dividing marital property—could be made based on the judgment itself. Objecting also could have served to highlight the fact that much of the discussion and argument on appeal over the true legal effect of the judgment is academic. As Concepcion himself notes on appeal (and as reflected on the judgment), he was not represented by counsel in the dissolution action and there is no evidence he understood any of these legal distinctions.
The discussion between counsel and the court was very brief. After the prosecutor requested judicial notice and counsel briefly discussed the issue, the trial court indicated, "If that's the law, okay, fine, I'll grant it," and defense counsel did not object.
But we are not persuaded that either party had to present evidence that Concepcion was versed in the legal aspects of dissolution or probate proceedings to support their respective positions. Relying on the effective date under paragraph 4.a. of the judgment, the prosecutor could reasonably argue that Concepcion, as a layperson, could conclude that he stood to inherit marital property by killing his spouse before the "divorce" was final. Relying on the file-stamped date and paragraph 4.o. of the judgment (property division), the defense could argue that Concepcion instead understood that the parties' property was already divided, and that the judgment provided notice that the dissolution could operate to sever the joint tenancy. Accordingly, even if we were to assume that defense counsel had no rational tactical purpose for not objecting, Concepcion has not shown a reasonable probability that the outcome of trial would have been more favorable if his counsel had objected. In fact, objecting could have actually harmed Concepcion's defense because—regardless of the legal effect that should have been afforded to the judgment (see Estate of McDaniel, supra, 161 Cal.App.4th at pp. 462-463)—there is no evidence that anyone other than Concepcion obtained any of the sales proceeds from the property.
The judgment provided the following notice: "Dissolution or legal separation may automatically cancel the rights of a spouse or domestic partner under the other spouse's or domestic partner's will, trust, retirement plan, power of attorney, pay-on-death bank account, transfer-on-death vehicle registration, survivorship rights to any property owned in joint tenancy, and any other similar thing." (Italics added.)
As previously noted, Concepcion transferred the property for consideration as reflected on the grant deed.
In sum, Concepcion has not shown his counsel's representation fell below an objective standard of reasonableness or that the outcome of trial would have been more favorable if his counsel had objected to the request for judicial notice. (See Strickland, supra, 466 U.S. at pp. 686-688; Rodrigues, supra, 8 Cal.4th at p. 1126.)
C. Prosecutorial Misconduct Relating to Statements About the Property
Concepcion contends the prosecutor erred by stating Concepcion automatically got the entire property, by operation of law, following Linda's death. As discussed ante, there were competing inferences that could be drawn from the evidence in this case relating to the disposition of the property. Whether Concepcion was entitled to the full proceeds of the property was a disputed issue at trial, there was evidence that Concepcion did in fact keep the proceeds, and the prosecutor was entitled to make a legal argument concerning his view of the case and the evidence during his closing argument. (See Hill, supra, 17 Cal.4th at p. 819; Tully, supra, 54 Cal.4th at pp. 1009-1010.) Defense counsel was entitled to counter the argument, and did so during his closing.
We recognize that defense counsel's argument was rather cursory, but that appears to be a strategic choice as he instead focused on inconsistencies in the crime scene and investigation. Regardless, defense counsel had the opportunity to counter the prosecutor's arguments, and any failure on his part to do so has no bearing on whether the prosecutor's argument constituted misconduct.
Concepcion also asserts the People should have called an expert witness to testify as to this position if they wanted to rely on it, but Concepcion provides no authority to support his claim that a legal expert was required here. Concepcion merely cites general principles regarding the admission of expert testimony. (See Evid. Code, § 720; People v. Sanchez (2016) 63 Cal.4th 665, 675.) Contrary to Concepcion's assertions, the prosecutor was not testifying to his own opinions based on experience or facts outside the record, but was instead making an argument based on the evidence presented at trial and reasonable inferences from that evidence. (Cf. People v. Huggins (2006) 38 Cal.4th 175, 206-207; Hill, supra, 17 Cal.4th at pp. 827-829.) The prosecutor did not engage in misconduct by doing so.
Concepcion also asserts the prosecutor misstated the value of the property, but again the prosecutor was arguing reasonable inferences from the assessor's records entered into evidence. In any event, because the precise value of the property was not material to the prosecutor's theory of the case, any assumed error in misstating the value was not prejudicial here.
VI. Concepcion's Absence When the Verdict Was Read
After the jury reported that it had reached a verdict, the court reconvened with counsel present, but the defendant and jury absent. The record then begins with the court stating, "We are on the record in the case of the People versus Mr. Concepcion. My understanding [is] Mr. Concepcion is in a medical appointment today. Do you agree to waive his presence for the reading of the verdict and any finding if there is one?" Counsel answered, "Yes, sir." When the jury came in, the court informed the jury that the defendant was not there because he had a medical matter to attend to, that defense counsel consented to having the verdict read without his client present, and that the court and prosecutor agreed. After the verdict was delivered, the court polled the jury and each juror answered with a simple "yes."
Concepcion asserts that his counsel could not waive his right to be present when the jury announced the verdict, and that the trial court violated his constitutional rights by allowing the jury to proceed despite his absence. A defendant's waiver of his or her right to be present in this context does not need to be in writing or stated orally by the defendant so long as other evidence shows the defendant is voluntarily absent, and the appellate court looks at the entire record to determine whether the trial court properly erred in proceeding without the defendant. (People v. Gutierrez (2003) 29 Cal.4th 1196, 1206; § 1043.) Here, the record suggests counsel had some additional discussion with the court before waiving Concepcion's right to be present on the record, but the record is not sufficient to establish whether Concepcion was aware that the jury had reached a verdict or that he voluntarily chose to be absent, particularly given the short time frame between the verdict coming back and counsel's waiver of Concepcion's right to be present.
However, we are not persuaded that Concepcion was prejudiced by the reading of the verdict in his absence. The jury deliberated for a total of about two and a half hours, and did not ask any questions during deliberation. Concepcion had not been absent for any other portion of the trial, the jurors did not know he would be absent during the rendering of the verdict when it reached the verdict, and there is no indication in the record from the court or either counsel that any of the jurors hesitated during the polling of the jury. Thus, there is no reasonable basis to conclude that the verdict would have been different had defendant been present.
Concepcion compares this case to Larson v. Tansy (10th Cir. 1990) 911 F.2d 392, 395-396 (Larson), but in that case the defendant was not present for jury instructions, closing arguments, or the verdict; there was no explanation to the jury as to why; and in at least one of the cases the court in Larson relies upon, the jury was not polled. (Ibid.) To the contrary, here, the court informed the jury that Concepcion was absent because of a medical appointment, he had not been absent during any other portion of the trial, the jury was polled, and there was no indication that any member of the jury expressed any hesitance in rendering the verdict. Accordingly, the present case is distinguishable from Larson.
Although the trial court should have confirmed, on the record, that Concepcion had himself agreed to be voluntarily absent, there is no reasonable basis to conclude that the verdict would have been any different in this case. We therefore conclude that reversal is not required as a result of his absence.
VII. Cumulative Error
Concepcion asserts the combination of the foregoing alleged errors, misconduct, and ineffective assistance was prejudicial. "Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) Here, we are not persuaded by Concepcion's arguments, or that any assumed errors, misconduct, or ineffective assistance of counsel had any significant impact on the outcome of the case. We therefore conclude that the cumulative effect of any such errors also was not prejudicial. (See People v. Martinez (2003) 31 Cal.4th 673, 704 [cumulative error doctrine inapplicable where "no serious errors occurred that, whether viewed individually or in combination, could possibly have affected the jury's verdict"].) VIII. Resentencing Pursuant to Section 12022 .53
On February 26, 2016, the trial court sentenced Concepcion to 25 years to life for the murder conviction, and an additional 25 years to life for the firearm enhancement pursuant to section 12022.53, subdivision (d), for a total of 50 years to life.
While this appeal was pending, Concepcion filed a supplemental brief addressing amendments to sections 12022.53 that became effective on January 1, 2018. (See Sen. Bill No. 620 (2017 Reg. Sess.).) The amended provision now affords the trial court discretion to strike or dismiss firearm enhancements pursuant to section 12022.53 at the time of sentencing if doing so would be in the interest of justice. (§§ 1385; 12022.53, subd. (h) [effective Jan. 1, 2018].) The People concede People v. Francis (1969) 71 Cal.2d 66 is controlling and requires retroactive application of amended section 12022.53 to all nonfinal judgments, including the judgment here, and we agree. (Accord, People v. Arredondo (2018) 21 Cal.App.5th 493, 506-507 [concluding the amendment should be given retroactive effect and remanding for resentencing].)
The People asserted in their responsive briefing that the issue was not ripe, as Concepcion filed his brief in December 2017, before the amendment to section 12022.53 became effective. However, the amendment did become effective shortly thereafter on January 1, 2018 and, thus, the issue is now ripe for adjudication.
Accordingly, we remand the matter to the superior court for resentencing on the limited issue of whether the court should, in the interest of justice, strike or dismiss the firearm enhancement in accordance with the amendments to section 12022.53, subdivision (h).
DISPOSITION
The matter is remanded for resentencing to allow the superior court to consider whether to exercise its discretion to strike or dismiss the firearm enhancement in accordance with the amendments to section 12022.53, subdivision (h). In all other respects, the judgment is affirmed.
/s/_________
GUERRERO, J. WE CONCUR: /s/_________
HALLER, Acting P. J. /s/_________
IRION, J.