Opinion
F075658
02-24-2020
THE PEOPLE, Plaintiff and Respondent, v. NATHAN JOSEPH HERNANDEZ, Defendant and Appellant.
Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Matthew A. Kearney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F16903378)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge. Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Matthew A. Kearney, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
A jury convicted appellant Nathan Joseph Hernandez of shooting at an occupied building (Pen. Code, § 246; count 1); shooting at an unoccupied vehicle (§ 247, subd. (b); count 2); two counts of assault with a firearm (§ 245, subd. (a)(2); counts 3 & 4); permitting another person to shoot from a vehicle (§ 26100, subd. (b); count 5); and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 6). The jury found true that appellant committed these crimes while released from custody in another criminal matter (§ 12022.1). Finally, the jury found true that appellant had served a prior prison term and he had not remained free of a new felony conviction for five years (§ 667.5, subd. (b)).
All future statutory references are to the Penal Code unless otherwise noted.
The trial court imposed an upper term of seven years in count 1 (shooting at an occupied building). This sentence was enhanced by two years under section 12022.1 (crime committed while on bail), and further enhanced by one year for the prior prison term (§ 667.5, subd. (b)). The court imposed a consecutive term of eight months in count 6 (possession of a firearm by a felon). The court imposed upper term sentences in the remaining four counts, which were all stayed (§ 654). Appellant received an aggregate prison term of 10 years eight months.
Appellant contends the evidence was insufficient to support his convictions in counts 1 through 5. He further asserts the trial court abused its discretion in three ways: (1) permitting admission of evidence regarding his parole status; (2) in denying two Marsden motions; and (3) in denying a motion for new trial. We reject these claims.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
Via supplemental briefing, we agree with the parties that Senate Bill No. 136 (2019-2020 Reg. Sess.; Senate Bill 136), which the Governor recently signed, retroactively applies to appellant. Senate Bill 136 amends the circumstances under which a one-year sentence enhancement may be imposed under section 667.5, subdivision (b). Under the new law, appellant's prior prison term no longer qualifies for this enhancement. We will strike the enhancement under section 667.5, subdivision (b), and reduce appellant's sentence accordingly. We otherwise affirm the judgment.
BACKGROUND
We summarize the material trial evidence. We provide additional facts later in this opinion when relevant to issues raised on appeal.
I. The Prosecution's Case.
The prosecution relied on a theory of aiding and abetting to establish appellant's guilt for shooting at an occupied building (§ 246; count 1); shooting at an unoccupied vehicle (§ 247, subd. (b); count 2); and assault with a firearm (§ 245, subd. (a)(2); counts 3 & 4). In addition to aiding and abetting the crimes charged in counts 1 through 4, the prosecutor argued that appellant permitted another person to shoot from his vehicle as charged in count 5 (§ 26100, subd. (b)).
A. The shooting.
This shooting occurred on May 13, 2016, at approximately 5:00 p.m. at a gas station in Sanger, California. Two victims were involved, one of whom was Jose Patino. Three witnesses testified about seeing and hearing the shots fired.
The prosecution subpoenaed Patino to testify in this matter. Patino, however, did not appear as a witness and a body attachment was issued for him. After appellant was convicted, appellant submitted a motion for a new trial. Attached to his motion was a declaration from Patino, who claimed the wrong person had been convicted in this matter. We address appellant's motion for a new trial and Patino's declaration in section IV, below.
1. The testimony of M.A.
M.A. was parked near the gas station and sitting inside her vehicle when the events unfolded. She knew Patino from work. She saw Patino and one or two other men exit a vehicle near the gas station's convenience store. Another vehicle pulled up. This second vehicle "was either really dark, dark blue or black." M.A. said this vehicle looked like a newer Chevy Malibu. The Chevy "pulled up behind and then came back and then got up closer." She believed the Chevy was acting "odd" based on its movements. M.A. saw two people inside the Chevy, a driver and a front passenger. The driver wore a white shirt and the passenger had a red shirt. Patino and the other victim looked at the Chevy. No words were exchanged and no confrontation occurred. M.A. did not see the victims with any weapons. Without warning, a hand appeared from the passenger window of the Chevy. This person wore red. M.A. saw a black gun. She heard 10 to 12 shots in rapid succession, but she testified the shooter took a brief pause in the middle of discharging these rounds. The victims dove for cover behind parked vehicles. While the shots were being fired, the Chevy drove slowly. It then took off. M.A. saw the victims get into their vehicle, and they drove away in the opposite direction from the Chevy.
2. The testimony of J.R.
J.R. worked across the street from this gas station. On May 13, 2016, just before 5:00 p.m., he walked across the street to purchase some items from its convenience store. J.R. saw a black vehicle enter the gas station and make a U-turn in front of the pumps. He saw two people in the black car. He was unable to see the driver's face.
Two men were walking into the store. They turned around and started walking towards the black vehicle. J.R. did not see any confrontation or anything that suggested an altercation was about to occur. The victims did not show any weapons. Without warning, about 10 shots were fired from the passenger side of the black vehicle. J.R. testified that, around the time the shots started, he saw the driver's hand on the steering wheel, so he did not think the driver was shooting. According to J.R., the black vehicle did not move while the shots were fired. J.R. heard "probably two pauses" during the 10 shots. The black vehicle took off going southbound. This vehicle picked up speed as it went down the road. The victims got into a Tahoe and they drove away northbound.
3. The testimony of L.B.
L.B. was an off-duty deputy sheriff who happened to be across the street when this shooting occurred. He heard "ten gunshots in very rapid succession" coming from outside the gas station's convenience store. He observed two Hispanic males leaving the front door of the gas station very quickly. They entered either a Tahoe or a Yukon, and they sped away northbound. L.B. and a friend pursued this vehicle. They called 911 and alerted law enforcement. About five or 10 minutes later, various police and sheriff personnel made a traffic stop and detained the occupants of this vehicle, which was a Tahoe.
B. The victims in this matter were unarmed.
After stopping the Tahoe, law enforcement personnel discovered two men inside, Patino and A.Z. Patino had been a passenger in the Tahoe and A.Z. had been driving. Neither of them had any weapons on them and no weapons were found inside the Tahoe. The Tahoe had sustained three gunshots on the driver's side, and it had shattered glass.
Nothing in this record establishes or suggests that the victims were injured during this shooting.
C. The investigation.
The Fresno Sheriff's Department investigated this shooting. Deputies recovered 10 spent shell casings in the gas station's parking lot. All of the shells were nine millimeter and they were all the same brand. No fingerprints were discovered on the casings.
1. Appellant's credit card linked him to this shooting.
Shortly after this shooting, the store's manager alerted a deputy that "the persons involved in the shooting had just paid with a credit card[.]" The manager provided a receipt to the deputy. At trial, the manager testified that this receipt represented the last credit transaction that occurred in the store before the shooting started. The original receipt (People's exhibit 47) was moved into evidence. Appellant's name was on the receipt.
2. The additional damage caused by this shooting.
At trial, the jury learned that a truck parked in front of the convenience store had received multiple bullet strikes. Bullet fragments were recovered inside the store. The store's front door was damaged, and a bullet hole was at the bottom of the door. A window was broken. A bullet strike was also discovered inside the store on its counter.
Just to be clear, this was not Patino's vehicle.
3. The store's surveillance videos.
When this shooting occurred, the gas station had multiple surveillance cameras. Shortly after this shooting, the manager showed a deputy the store's video system.
Alan Kelzer, a deputy sheriff, reviewed the store's surveillance video. At trial, he summarized his observations. Kelzer saw a black vehicle pull in front of the store. Two occupants entered the store. The driver appeared to use a credit card to make a purchase. The two individuals returned to the black vehicle. As they backed out, the two victims, Patino and A.Z., arrived in a gold Tahoe. Patino and A.Z. exited the Tahoe, and their attention was focused back towards the black vehicle that was backing out. Kelzer did not see any aggressive movements, and the victims were not armed.
Kelzer also told the jury that, as seen on a surveillance video, a little girl had been playing in front of the cash register before this shooting. She had been near where the bullet had struck the counter. The manager's father-in-law had been behind the cash register. He was standing near this same bullet strike.
Kelzer testified that, when he watched the video, it appeared that the person who made the last purchase, and whose name appeared on the receipt provided by the store's manager, had been the driver of the black vehicle involved in this shooting. At trial, the store's manager testified while viewing the video. It was noted that the person who made this final purchase was wearing a white shirt.
During closing argument, the prosecutor asserted that the man who made this purchase was seen in the video "wearing a baggy white T-shirt[.]"
4. Appellant's parole agent identifies him.
Kelzer located an address for appellant. On May 17, 2016, about four days after this shooting, Kelzer conducted surveillance at that address. He observed a black vehicle parked in the driveway. This vehicle looked "identical" to the one involved in this shooting. Kelzer discovered that this black vehicle, a Chevy Impala, was registered to appellant and his girlfriend.
On May 19, 2016, Kelzer contacted appellant's parole agent, Lilo Diaz. Diaz viewed the surveillance video with Kelzer. Diaz identified appellant as the person who made the purchase inside the store. Diaz identified the black vehicle involved in this shooting as appellant's Chevy Impala. He had seen appellant previously riding in a similar "black Chevy four door." At trial, Diaz testified he was "very confident" and 100 percent certain that it was appellant who appeared in the surveillance video. Diaz said he identified appellant based on appellant's walk, which Diaz described as "athletic" with his arms "not so close to his body[.]"
On May 20, 2016, Kelzer again conducted surveillance at appellant's residence. Kelzer saw the same vehicle parked near the garage. This again appeared to be the same vehicle observed in the surveillance video and involved in this shooting. That same day, Kelzer authored a search warrant to enter appellant's residence.
5. Appellant is arrested and his residence is searched.
On May 26, 2016, sheriff personnel executed a search warrant of appellant's residence. Appellant was detained without incident. A picture was taken of appellant at the time he was detained. He was wearing shoes that "appeared to have the same color description and style" as the shoes the driver had worn in the surveillance video. Appellant's stature and build also "appeared very similar as the person who was the driver" of the vehicle in this shooting.
Both appellant's Impala and the black vehicle in the surveillance video did not have front license plates. A lanyard was discovered on appellant's coffee table. It appeared to be the same size as a lanyard observed on the driver who made the purchase in the surveillance video. A hat with the "letter P" on it was discovered inside a bedroom. This hat appeared "to have the same look as the hat that the driver [in] the surveillance video was wearing." Appellant's wallet was searched. A credit card was located inside that wallet. It was in appellant's name and it contained the same numbers that appeared on the receipt that was moved into evidence.
Deputies recovered a loaded rifle from appellant's residence. It was in an attic attached to a bedroom closet. At trial, a deputy testified that, after deputies surrounded appellant's residence and before he exited the building and was detained, "a large crashing" had been heard from the north side of the house. It was in that area that the loaded rifle was later discovered. The deputy explained at trial that the closet door leading to the crawl space to the attic had been closed. Inside that closet, a clothes rack was lying on the ground. It appeared to have been pulled down or it had fallen down.
Appellant's cell phone was searched. Sheriff's personnel discovered a picture on appellant's cell phone that depicted the same rifle which had been recovered during the search of appellant's residence.
6. Appellant's statements to Kelzer.
On or about May 26, 2016, Kelzer interviewed appellant. Appellant admitted he was out on bail pending charges. He admitted owning the Chevy Impala. He admitted being present at the gas station when this shooting occurred. However, he maintained he was not involved in this shooting and he only purchased beer.
II. The Defense Evidence.
Appellant testified on his own behalf. During his direct and cross-examinations, he admitted he had been convicted in 2005 "of a felony 245(a)(1)[.]" He also admitted he was convicted in 2015 of felony driving under the influence. During cross-examination, he admitted that, when this incident occurred in May 2016, he had been out on bail in another felony matter.
Appellant informed the jury that he was at the gas station around the time of this shooting. He said he entered alone and he purchased beer. He exited the store and he went home. He denied having any weapons or discharging a gun. He claimed nobody was with him.
Appellant testified he was not the person seen in the surveillance video. He denied that his vehicle was in the video. He admitted recognizing his name on the receipt in evidence. He also agreed that his card was used to make this purchase. However, he denied recognizing his signature on the receipt.
Appellant claimed the rifle recovered in his residence was in a bedroom that was "off limits." He explained he had been residing in his grandmother's house. After she passed away, her "stuff" was placed into storage in that room. According to appellant, his aunts and uncles had placed his grandmother's items in the area where the rifle had been recovered. He denied hearing a "big thud" or anything like that around the time deputies surrounded his residence.
DISCUSSION
I. Substantial Evidence Supports Appellant's Convictions In Counts 1 Through 5.
Appellant argues the evidence was insufficient to establish his guilt in counts 1 through 5. He maintains these convictions must be reversed.
A. Background.
During closing argument, the prosecutor asserted this incident started because appellant was cut-off when backing out of the parking lot. According to the prosecutor, appellant "should have known that his front right passenger" was ready with a semiautomatic firearm. The prosecutor stated appellant would have seen and heard his passenger pull back the slide and load a bullet into the chamber before firing 10 to 12 shots. The prosecutor argued appellant had knowledge of his passenger's intent to shoot.
B. The standard of review.
When considering a challenge to the sufficiency of the evidence to support a conviction, we review the record in the light most favorable to the judgment and decide whether it contains substantial evidence from which a reasonable finder of fact could make the necessary finding beyond a reasonable doubt. The evidence must be reasonable, credible and of solid value. We presume every inference in support of the judgment that the finder of fact could reasonably have made. We do not reweigh the evidence or reevaluate witness credibility. We cannot reverse the judgment merely because the evidence could be reconciled with a contrary finding. (People v. D'Arcy (2010) 48 Cal.4th 257, 293.)
The standard of review is the same in which a conviction is based primarily on circumstantial evidence. (People v. Clark (2016) 63 Cal.4th 522, 625.) "In a case built solely on circumstantial evidence, none of the individual pieces of evidence 'alone' is sufficient to convict. The sufficiency of the individual components, however, is not the test on appeal." (People v. Daya (1994) 29 Cal.App.4th 697, 708.) Rather, when reviewing the sufficiency of circumstantial evidence, we must consider such evidence cumulatively and determine whether a reasonable jury could have found the defendant guilty beyond a reasonable doubt. (Id. at p. 709.)
C. Analysis.
For purposes of this appeal, appellant assumes (without conceding) he was the driver of the black vehicle from which these shots were fired. He argues, however, a "crucial and substantial evidentiary gap" exists. He maintains the passenger/shooter acted in "an independent and spontaneous" manner. He contends nothing reasonably establishes the required elements of aiding and abetting, or that he knowingly permitted another person to discharge a firearm from his vehicle. He states no evidence demonstrated his knowledge that his passenger was armed, that his passenger had loaded the weapon, or that his passenger was going to shoot. He asserts the prosecutor relied on speculation to establish his intent. We find appellant's arguments unpersuasive.
1. A background of aiding and abetting.
All persons involved in the commission of a crime, whether they directly commit the act constituting the offense or aid and abet in its commission, are principals in the commission of the crime. (§ 31.) " 'A "person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime." ' [Citation.]" (People v. Nguyen (2015) 61 Cal.4th 1015, 1054.)
" 'Whether a person has aided and abetted in the commission of a crime ordinarily is a question of fact.... [¶] ... [¶] Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.' [Citation.]" (People v. Nguyen, supra, 61 Cal.4th at p. 1054.) " 'Evidence of a defendant's state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction.' [Citation.]" (Id. at p. 1055.) An accomplice's intent to encourage or facilitate the actions of a perpetrator must be formed before or during the commission of the offense. (People v. Montoya (1994) 7 Cal.4th 1027, 1039.)
If a charged offense requires specific intent, then an accomplice must share the perpetrator's specific intent to be guilty. "In contrast, if the charged offense is a general intent crime, the aider and abettor need only knowingly and intentionally facilitate the direct perpetrator's commission of the crime, without intending some additional result or consequence not required for the crime." (People v. White (2014) 230 Cal.App.4th 305, 317.)
2. A background of the crimes charged in counts 1 through 5.
In count 1, appellant was found guilty of violating section 246. This statute makes it a felony, in relevant part, when any person "maliciously and willfully" discharges a firearm at an occupied building. (§ 246.)
In count 2, appellant was found guilty of violating section 247, subdivision (b). In relevant part, this statute is violated when any person discharges a firearm at an unoccupied motor vehicle.
In counts 3 and 4, appellant was found guilty of violating section 245, subdivision (a)(2). This statute states, in relevant part, that any person "who commits an assault upon the person of another with a firearm shall be punished by imprisonment in the state prison for two, three, or four years, ..." (§ 245, subd. (a)(2).)
In count 5, appellant was found guilty of violating section 26100, subdivision (b). In relevant part, this makes any driver of any vehicle "who knowingly permits any other person to discharge any firearm from the vehicle" punishable by imprisonment in state prison for 16 months or two or three years. (§ 26100, subd. (b).)
We agree with respondent that shooting at an occupied building (§ 246; count 1) is a general intent crime. (People v. Mendoza (1998) 18 Cal.4th 1114, 1123.) Likewise, shooting at an unoccupied vehicle (§ 247, subd. (b); count 2); assault with a firearm (§ 245, subd. (a)(2); counts 3 & 4); and permitting another to shoot from a vehicle (§ 26100, subd. (b); count 5) are general intent crimes because they do not require a mental state beyond commission of the acts proscribed by law. (See People v. Sargent (1999) 19 Cal.4th 1206, 1215 [defining general and specific intent crimes].)
The jury in this matter was properly instructed that the charges in counts 1 through 5 required general criminal intent. The jury was also told that appellant was guilty of the crimes charged in counts 1 through 4 if he aided and abetted another person in committing the required elements.
3. Appellant's actions in this matter.
Kelzer testified that, when he viewed the surveillance video, he saw the driver of the black vehicle make a purchase inside the store before returning to that vehicle. Despite his claims at trial that he was not seen in the surveillance video, circumstantial evidence overwhelmingly suggested it was appellant who drove the black vehicle involved in this shooting. Both appellant's registered vehicle and the vehicle in this shooting looked "identical" and both lacked a front license plate. A lanyard and a hat were recovered in appellant's residence. These items were similar to a lanyard and hat observed on the suspect in the video. Appellant's credit card was used to make the final purchase inside the store before this shooting started. When taken into custody, the same credit card was in appellant's wallet. Appellant was also wearing shoes that appeared to have the same color and style as observed on the driver in the surveillance video. Appellant's stature and build also "appeared very similar as the person who was the driver of the vehicle on the date of the shooting on May 13th." Based on the verdicts rendered, it is clear the jurors found appellant's trial testimony lacking in credibility and they rejected it.
During closing argument, the prosecutor asserted that appellant's vehicle was the same one seen in the store's video. "Look at the framing around the windows. You look at the rims. It's clearly the same Impala that was at [appellant's] house when Kelzer surveilled it twice before the search warrant as well as when the search warrant [was] executed."
As appellant backed his vehicle away from the store, the victims arrived in their vehicle. M.A. testified that appellant's vehicle acted "odd" because it backed up and then pulled forward. It slowed down. It got closer to the victims. The passenger then began to fire from the vehicle's window. M.A. testified that appellant's vehicle drove slowly while the shooter fired. J.R. testified the black vehicle did not move while the shots were fired. Both M.A. and J.R. agreed the shooter paused between shots, and J.R. believed the shooter paused twice. Both M.A. and J.R. testified that, after the shots were fired, appellant's vehicle took off.
When considering a challenge to the sufficiency of the evidence to support a conviction, we must presume every inference in support of the judgment that the finder of fact could reasonably have made. (People v. D'Arcy, supra, 48 Cal.4th at p. 293.) The reasonable inferences here establish that appellant drove the shooter closer to the intended victims. Appellant drove slowly or not at all while the shooter fired. Appellant gave the shooter time to pause once or twice between shots. Appellant did not speed away until the shooter had fired at least 10 rounds. By placing the passenger in a position to fire on the victims, the reasonable inferences demonstrate appellant's intent to aid in this shooting. Those inferences are further bolstered because appellant did not drive away until his passenger had finished firing at least 10 rounds.
We reject respondent's assertion that appellant's guilt in counts 1 through 4 could be established because appellant held a conscious indifference to the probable consequences that the shooter's bullets would strike the gas station and the vehicle. In general, an aider and abettor may be liable for the perpetrator's intended crime and any other crime that "was a natural and probable consequence of the intended crime." (People v. Mendoza, supra, 18 Cal.4th at p. 1123.) In this matter, however, the jury was not instructed with this theory. (See CALCRIM No. 402.) Moreover, the prosecutor did not advance this theory during closing argument. Appellant's criminal intent, however, was established based on how he drove his vehicle before, during and just after this shooting.
Based on this record, the cumulative circumstantial evidence establishes appellant's guilt beyond a reasonable doubt. (See People v. Daya, supra, 29 Cal.App.4th at p. 709.) The reasonable inferences demonstrate appellant's knowledge of the shooter's unlawful purpose, and appellant's intent to facilitate, aid or encourage the crimes charged in counts 1 through 4. (See People v. Nguyen, supra, 61 Cal.4th at p. 1054.) The evidence likewise shows that appellant knowingly permitted another person to discharge a firearm from his vehicle as charged in count 5. The evidence was reasonable, credible and of solid value. We cannot reverse the judgment merely because the evidence could be reconciled with contrary findings. (See People v. D'Arcy, supra, 48 Cal.4th at p. 293.) Instead, a reasonable jury could have found appellant guilty in counts 1 through 5 beyond a reasonable doubt. (Ibid.) Accordingly, appellant's arguments are without merit and this claim fails.
II. Any Alleged Abuse Of Discretion Was Harmless Regarding Admission Of Appellant's Parole Status.
Appellant contends the trial court abused its discretion by permitting the jury to learn of his parole status. He asserts this abuse was prejudicial, requiring reversal of his judgment.
A. Background.
1. The motion in limine.
Prior to trial, the court denied appellant's motion to exclude reference to his parole status. The court believed appellant's parole status was relevant regarding how Diaz knew appellant and how Diaz had identified him from the surveillance video. The court indicated it would allow Diaz to explain how he knew appellant. The court rejected an argument that such testimony would take an undue consumption of time or was cumulative. According to the court, this identification testimony would be very short. The court, however, stated it would reconsider this issue if appellant's identification was otherwise established at trial.
2. The parole agent's trial testimony.
At trial, Diaz informed the jury he worked for the State of California as a parole agent and he had "supervised" appellant since February 2016. Diaz testified he had met with appellant about two times per month, with a total of approximately eight meetings. Diaz told the jury he had met with appellant about one week before identifying appellant in the surveillance video.
B. The standard of review.
"We review a trial court's decision to admit or exclude evidence 'for abuse of discretion, and [the ruling] will not be disturbed unless there is a showing that the trial court acted in an arbitrary, capricious, or absurd manner resulting in a miscarriage of justice.' [Citation.] When evidence is erroneously admitted, we do not reverse a conviction unless it is reasonably probable that a result more favorable to the defendant would have occurred absent the error." (People v. Powell (2018) 5 Cal.5th 921, 951.)
C. Analysis.
Appellant argues Diaz's testimony about his (appellant's) parole status was not relevant. He asserts this testimony was cumulative and prejudicial. He claims it is reasonably probable he would have obtained a better outcome had the trial court not permitted introduction of this evidence. He cites People v. Stinson (1963) 214 Cal.App.2d 476 (Stinson) as an example of how a reference to a defendant's parole status can cause harm. Appellant's arguments are without merit.
Although a dispute exists whether or not the trial court abused its discretion in permitting the prosecution to introduce evidence regarding appellant's parole status, we can resolve this claim based on a lack of prejudice. As such, we proceed directly to the issue of harmless error.
"Evidence is substantially more prejudicial than probative [within the meaning of section 352] if, broadly stated, it poses an intolerable 'risk to the fairness of the proceedings or the reliability of the outcome' [citation]." (People v. Waidla (2000) 22 Cal.4th 690, 724.) " 'In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction.' " (People v. Doolin (2009) 45 Cal.4th 390, 439.)
In Stinson, supra, 214 Cal.App.2d 476, two codefendants were found guilty of second degree burglary (§ 459). (Stinson, supra, at p. 477.) One defendant, DeMello, had a prior burglary conviction, which he admitted prior to trial. During trial cross-examination, a police officer testified that, during a police interview, DeMello's parole officer had spoken with DeMello. The defense objected, and the trial court sustained that objection. The court struck that testimony and instructed the jury to disregard it. Outside the jury's presence, defense counsel indicated he would call DeMello to testify if the court denied a motion for mistrial. The court eventually denied such a motion, and DeMello testified, admitting two prior felony convictions and his parole status. (Id. at pp. 479-480.) Following the guilty verdict, DeMello filed a renewed motion for a mistrial and a motion for a new trial based on the "improper allusion to DeMello's status as a parolee." The court denied both motions. (Id. at p. 480.) The court believed the circumstantial evidence of guilt was convincing, the error was not prejudicial, and DeMello could not have been successful without taking the witness stand. (Ibid.)
On appeal, the Stinson court stated the officer's testimony regarding DeMello's parole status had "completely destroyed" DeMello's tactical choice not to testify. (Stinson, supra, 214 Cal.App.2d at p. 481.) Before trial, the parties had discussed the exclusion of all reference to prior convictions. The officer had been instructed against such disclosures. During direct examination of the officer, "the district attorney had meticulously refrained from any such reference. It was on cross-examination, when he was not under the control of the district attorney, that the witness injected the nonresponsive reference to the parole officer, with its inevitable implication of a prior criminal record." (Ibid.) The officer was experienced. The appellate court noted it appeared the officer had deliberately interjected improper evidence into the case. (Ibid.) Despite these concerns, however, the Stinson court affirmed the judgment. The appellate court determined that, even if DeMello had not taken the stand, the circumstantial evidence against him "was tight and strong." (Id. at p. 482.) The trial court had admonished the jury to disregard the problematic testimony. The Stinson court concluded there was no reasonable probability the jury would have acquitted DeMello even if this error had not occurred. (Id. at pp. 482-483.)
In this matter, and similar to Stinson, there is no reasonable probability the jury would have reached a more favorable verdict had the trial court excluded any reference to appellant's parole status. The circumstantial evidence against appellant was substantial. He was seen in the surveillance video. His credit card was used to make the last purchase before this shooting started. His vehicle was seen in the surveillance video. Appellant drove his vehicle closer to the victims, and he placed the shooter in a position to fire. Appellant did not drive away until the shooter had fired at least 10 times.
In addition to the compelling circumstantial evidence, the jury learned from other sources that appellant was a felon who had served time in prison. The jury found true that appellant had served a prior prison term and he had not remained free of a new felony conviction for five years (§ 667.5, subd. (b)).
To support the charge in count 6 of possession of a firearm as a felon (§ 29800, subd. (a)(1)), the prosecution introduced documents establishing that, in 2004, appellant had entered a plea of no contest to a felony charge of assault with a deadly weapon (§ 245, subd. (a)(1)). It was also established that, in 2015, appellant had pleaded no contest to misdemeanor battery (§ 242), which was elevated to a felony pursuant to section 186.22, subdivision (d). He was sentenced to prison for two years.
Section 186.22, subdivision (d), sets forth certain sentencing parameters when a person is convicted of a public offense which is committed for the benefit of, at the direction of, or in association with any criminal street gang.
During trial and outside the jury's presence, the prosecution indicated it was prepared to introduce into evidence documents establishing appellant's two prior felony convictions. The court gave appellant the opportunity to stipulate that, when appellant's residence was searched in this matter, he had been convicted of two prior felonies. Appellant declined to enter into such a stipulation.
During his direct and cross-examinations, appellant admitted he had been convicted in 2005 "of a felony 245(a)(1)[.]" He also admitted he was convicted in 2015 of felony driving under the influence. During cross-examination, he admitted that, when this incident occurred in May 2016, he had been out on bail in another felony matter.
Finally, in counts 1 through 6, the prosecution introduced documents confirming that, when the present crimes occurred, appellant was out of custody on bail from another Fresno County Superior Court case. These documents established the sentence enhancement under section 12022.1, subdivision (b).
Apart from the disputed testimony establishing appellant's parole status, the jury learned about appellant's prior felony convictions, his prior prison sentence, and the fact he was out on bail on another matter when the present charges occurred. As such, we reject appellant's claim it is reasonably probable a result more favorable to him would have occurred had the trial court precluded reference to appellant's parole status. To the contrary, the circumstantial evidence establishing appellant's guilt was compelling. Moreover, in light of the other evidence establishing appellant's criminal history, testimony about appellant's parole status could not have inflamed the jurors' emotions or motivated them to punish appellant. (See People v. Doolin, supra, 45 Cal.4th at p. 439.) This disputed evidence did not pose an intolerable risk to the fairness of the proceedings or the reliability of the outcome. (See People v. Waidla, supra, 22 Cal.4th at p. 724.) Accordingly, prejudice is not present and this claim is without merit. III. The Trial Court Did Not Abuse Its Discretion When Denying Appellant's Two Marsden Motions And Any Presumed Error Was Harmless.
Appellant maintains the trial court prejudicially abused its discretion when it denied two Marsden motions involving his trial counsel. He seeks reversal of his judgment.
Prior to trial, appellant filed two Marsden motions involving his then counsel of record. The trial court denied those two motions. Appellant's present claim does not involve those two earlier Marsden motions.
A. Background.
After trial commenced in this matter, appellant twice sought to remove his counsel of record. On August 29 and September 1, 2016, respectively, the trial court considered and denied two Marsden motions. We summarize both hearings.
1. The Marsden hearing on August 29, 2016.
Appellant's first Marsden hearing involving his trial counsel occurred on August 29, 2016, while jury selection was underway. Appellant asserted his counsel had misled him and had failed to visit him recently to review this matter. Appellant claimed his counsel had promised to see him on certain days, and then failed to arrive. Appellant also complained counsel had not "presented anything to me that he's done, research on my case." Appellant believed he would not get a fair trial and he stated he was the one "putting all of these little things together."
Defense counsel replied he had been recently assigned the case, and he had met with appellant twice. According to counsel, he had gone over the case with appellant thoroughly, and he had sent out investigators to follow up with appellant's suggested witnesses. Counsel said he had been unable to meet with appellant recently due to some "personal issues" with his mother. Counsel stated he had "filed motions, in limine motions and 995s. So, I mean, I don't know what he means by misled."
The court found no breakdown in communication or inadequate representation. The court stated defense counsel had filed "significant documents before the trial," which were "well reasoned" and "well written." The court acknowledged appellant's frustration but noted a breakdown in communication is not present just because his counsel "is not meeting with you every time you want to meet with him." The court denied the motion.
2. The Marsden hearing on September 1, 2016.
Appellant's second Marsden hearing occurred on September 1, 2016, after the prosecution had begun presenting evidence. Appellant told the court he did not have any new concerns following the earlier Marsden hearing. However, he asserted he was not getting a fair trial. He stated, "I've done so much more to this case than what he's ever done maybe in his lifetime." Appellant claimed he had written down "multiple questions" for his counsel to use during cross-examination, but his counsel had "denied them all." Without providing details, appellant stated his attorney was prejudiced against him, and he felt his counsel was "working with the DA." Appellant maintained his counsel was misleading him, and they had had multiple arguments and disagreements. Appellant said he had not received "full discovery" and he had not received a copy of the jury instructions.
The trial court did not ask defense counsel to respond. Instead, the court commented that defense counsel's cross-examination during this trial had been "most effective" and "very precise and pinpoint on issues that he wants the jury to concentrate on." The court stated that jury instructions had not been finalized, and a proposed draft had been provided to defense counsel that same morning. The judge stated he had not seen anything "to cause this court to believe that [appellant] has not been provided not only appropriate counsel but actually in this case counsel that appears to be very strategic and effectively strategic in his presentation." The court indicated nothing demonstrated ineffective assistance or such a breakdown in communication to warrant substituting defense counsel. The court again denied the Marsden motion.
B. The standard of review.
The denial of a Marsden motion is reviewed for an abuse of discretion. (People v. Streeter (2012) 54 Cal.4th 205, 230.) To establish an abuse, the defendant must show that his or her right to assistance of counsel was substantially impaired or an irreconcilable conflict has occurred. (Ibid.)
C. Analysis.
Appellant claims he did not trust his defense counsel, and they were alienated from each other. Without providing details, he asserts there were communication problems, his counsel had misled him, and his counsel was working against him. He cites numerous opinions from lower federal courts to support his position that an abuse occurred when his counsel was not relieved. This record does not establish an abuse of discretion and any presumed error was harmless.
1. The trial court did not abuse its discretion.
In conducting a Marsden hearing, the trial court must ascertain the nature of the defendant's allegations and decide whether the allegations have sufficient substance to warrant replacement of defense counsel. The trial court must give the defendant an appropriate opportunity to set forth the complaints regarding counsel's representation and allow counsel to respond. (People v. Alfaro (2007) 41 Cal.4th 1277, 1320.)
Here, many of appellant's complaints stemmed from his attorney's failure to meet with him, and their disagreement over trial strategy. However, " 'the number of times one sees his attorney, and the way in which one relates with his attorney, does not sufficiently establish incompetence.' [Citation.]" (People v. Streeter, supra, 54 Cal.4th at p. 230.) Likewise, "tactical disagreements between a defendant and his attorney or a defendant's frustration with counsel are not sufficient cause for substitution of counsel. [Citations.]" (Id. at pp. 230-231.) A substitution of counsel is not warranted if a defendant expresses a lack of trust with his attorney or an inability to get along with him or her. (People v. Clark (2011) 52 Cal.4th 856, 918.)
During the first hearing, the trial court afforded appellant ample opportunity to set forth his complaints regarding his counsel's performance. After hearing appellant's complaints, the trial court allowed appellant's counsel to respond. The trial court was not required to do more. (People v. Alfaro, supra, 41 Cal.4th at p. 1320.)
Under the circumstances before us, the trial court was not required to inquire of defense counsel about appellant's nonspecific complaints during the second hearing. Indeed, appellant stated at the start of the second hearing that he did not have any new concerns. In any event, a disagreement with appointed counsel's trial preparation and strategy does not trigger any duty in the trial court to make inquiry of counsel. (People v. Penrod (1980) 112 Cal.App.3d 738, 747-748.) Moreover, the court expressed its belief that appellant's counsel was providing effective assistance.
Based on this record, appellant has not shown that his right to assistance of counsel was substantially impaired or that an irreconcilable conflict had occurred. (See People v. Streeter, supra, 54 Cal.4th at p. 230.) As such, an abuse of discretion did not occur when the court denied appellant's Marsden motions. In any event, we also conclude that any presumed error was harmless.
We decline to rely on appellant's lower federal authorities to resolve whether the trial court abused its discretion. California courts are not bound by decisions of the lower federal courts, even on questions of federal law. (People v. Avena (1996) 13 Cal.4th 394, 431.)
2. Any presumed error was harmless.
"The standard for prejudice regarding a denied Marsden motion is under Chapman v. California (1967) 386 U.S. 18. [Citation.] Under that standard, we must ask whether the denial was harmless beyond a reasonable doubt. [Citation.]" (People v. Loya (2016) 1 Cal.App.5th 932, 945.)
This record does not establish that the court's failure to relieve appellant's trial counsel substantially impaired his right to counsel. Indeed, the trial court specifically commented on how well his trial counsel had performed that far during trial. Moreover, significant and compelling circumstantial evidence established it was appellant who drove the black vehicle involved in this shooting. The evidence further demonstrated appellant's intent to aid and abet the shooter. It is apparent the jury rejected appellant's testimony and his claims that he was not involved in this shooting.
Based on this record, we can declare that any presumed error was harmless. It is beyond a reasonable doubt that the trial court's failure to grant appellant's Marsden motions did not prejudice him. Accordingly, appellant's arguments are without merit and this claim fails.
IV. The Trial Court Did Not Abuse Its Discretion In Denying Appellant's Motion For A New Trial.
Appellant seeks reversal of his judgment because the trial court denied his motion for a new trial.
A. Background.
1. Appellant's proposed evidence in support of his motion.
Prior to sentencing, appellant moved for a new trial based on the alleged discovery of new evidence. He submitted a declaration from Patino (one of the two victims in this matter), who asserted appellant was innocent of the charges and the suspect's vehicle was not black but "midnight blue." Patino claimed in his declaration the shooter "was dark skinned possibly an African-American." Patino stated the "wrong man" was in custody. Patino declared he had been "scared" when he gave statements to authorities.
2. The trial court's ruling.
At the hearing on the motion for new trial, the court stated it had reviewed the trial testimony of two witnesses, M.A. and J.R. The court expressed its concern that Patino's testimony was not "newly discovered" because Patino had been a subpoenaed witness for this trial. The court noted the prosecution had provided a minute order showing that Patino "actually was present. It was made known to the defense that [Patino] was a witness. Those reports are available. And there's been no showing that [Patino] was otherwise out of contact or not able to be presented as a witness."
Furthermore, the court stated that, even if Patino's testimony was newly discovered, a different result was not likely. The court believed there was no material distinction between "midnight blue" and "black." The court also noted it was never alleged that appellant had been the shooter.
Finally, the court commented that the trial evidence had been "significant" regarding appellant's guilt. Appellant was seen in the video. He made a purchase inside the store. He returned to the black vehicle. According to the court, appellant was "clearly guilty on an aiding and abetting theory."
The court concluded that Patino's declaration did not represent newly discovered evidence. The court also did not believe a different result was probable based on Patino's proposed testimony.
B. The standard of review.
" 'We review a trial court's ruling on a motion for a new trial under a deferential abuse-of-discretion standard.' [Citations.]" (People v. Thompson (2010) 49 Cal.4th 79, 140.) An appellate court will not disturb such a ruling absent an unmistakable abuse of that discretion. (Ibid.) When discretionary power is statutorily vested in the trial court, we will not disturb the trial court's decision on appeal unless the court acted in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; see also People v. Williams (1998) 17 Cal.4th 148, 162 [abuse of discretion review asks whether ruling in question falls outside bounds of reason under applicable law and relevant facts].)
C. Analysis.
Appellant argues that Patino's declaration represented newly discovered evidence, it could not have been produced at trial, it contradicted the strongest evidence against him, and a different result was probable on retrial. He maintains his motion for new trial should have been granted, and the trial court abused its discretion. We disagree.
A trial court considers the following five factors when ruling on a motion for new trial based on newly discovered evidence: (1) whether the evidence, and not merely its materiality, is newly discovered; (2) whether the evidence is cumulative; (3) whether a different result is probable on retrial; (4) whether the party could not with reasonable diligence have discovered and produced it at trial; and (5) whether these facts are shown by the best evidence. (People v. O'Malley (2016) 62 Cal.4th 944, 1016.)
A motion for a new trial should be granted if newly discovered evidence contradicts the strongest evidence introduced against a defendant. (People v. Delgado (1993) 5 Cal.4th 312, 329.) A defendant meets his burden of establishing that a different result is probable on retrial by demonstrating that it is probable at least one juror would have voted to find him not guilty had the new evidence been presented. (People v. Soojian (2010) 190 Cal.App.4th 491, 521.)
In this matter, M.A. testified the shooter's vehicle "was either really dark, dark blue or black." Kelzer testified that appellant's black registered vehicle was identical to the black vehicle involved in this shooting. Diaz identified appellant as the person who made the purchase inside the store. Diaz identified the black vehicle involved in this shooting as appellant's Chevy Impala. At trial, Diaz testified that he was "very confident" and 100 percent certain that it was appellant who appeared in the surveillance video.
Patino's declaration that the shooter's vehicle was not black but "midnight blue" does not contradict the strongest evidence against appellant. Indeed, M.A. stated that the vehicle involved in this shooting was possibly dark blue. Further, Patino was a subpoenaed witness for this trial. Thus, his proposed testimony did not represent newly discovered evidence. In any event, Patino's declaration was that the shooter, and not the driver, was possibly African-American. The prosecution, however, never alleged that appellant was the shooter. Finally, the circumstantial evidence against appellant was significant and compelling.
Based on this record, we will not disturb the trial court's ruling denying the motion for a new trial. It is not probable at least one juror would have voted to find appellant not guilty had Patino's testimony been presented. (See People v. Soojian, supra, 190 Cal.App.4th at p. 521.) Moreover, the court did not act in an arbitrary, capricious or patently absurd manner. (See People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.) Thus, an unmistakable abuse of discretion is not present. (See People v. Thompson, supra, 49 Cal.4th at p. 140.) Accordingly, appellant's contentions are without merit, and this claim fails.
V. Appellant's Prior Prison Enhancement Must Be Stricken.
A defendant may receive an additional sentence enhancement under section 667.5 if certain conditions are met. (People v. Buycks (2018) 5 Cal.5th 857, 889.) On October 8, 2019, the Governor signed Senate Bill 136 into law. This amends section 667.5, subdivision (b). Under this amendment, a one-year prior prison term enhancement will only apply if a defendant served a prior prison term for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (See Stats. 2019, ch. 590, § 1.) Prior to Senate Bill 136, a one-year enhancement was imposed for each prior separate prison term or county jail term imposed under section 1170, subdivision (h). (Former § 667.5, subd. (b).)
A one-year prior prison term enhancement contains a washout exception; the enhancement will not apply if a defendant remains free of prison custody for five years and does not commit an offense which results in a felony conviction. (§ 667.5, subd. (b).) --------
On November 1, 2019, we directed the parties to submit supplemental briefing regarding Senate Bill 136 and its impact in this matter. The parties agree, as do we, that appellant's prior prison enhancement must be stricken. It is undisputed that his prior prison term was not for a sexually violent offense under Welfare and Institutions Code section 6600, subdivision (b).
Senate Bill 136 became effective on January 1, 2020. (People v. Lopez (2019) 42 Cal.App.5th 337, 341.) Respondent concedes this change in law applies to appellant retroactively. (See In re Estrada (1965) 63 Cal.2d 740, 742.) We agree. We are to assume, absent evidence to the contrary, that the Legislature intended an "amended statute to apply to all defendants whose judgments are not yet final on the statute's operative date." (People v. Brown (2012) 54 Cal.4th 314, 323, citing In re Estrada, supra, 63 Cal.2d at pp. 742-748.)
Appellant benefits from Senate Bill 136 because his judgment is not yet final. As such, his enhancement under section 667.5, subdivision (b), must be stricken. However, we need not remand this matter for resentencing. The trial court imposed the maximum possible sentence against appellant with an upper term of seven years in count 1 (shooting at an occupied building). This sentence was enhanced by two years under section 12022.1 (crime committed while on bail), and further enhanced by one year for the prior prison term (§ 667.5, subd. (b)). The court imposed a consecutive term of eight months in count 6 (possession of a firearm as felon). The court imposed upper term sentences in the remaining four counts, which were all stayed (§ 654). Appellant received an aggregate prison term of 10 years eight months.
Because the trial court imposed the maximum possible sentence, there is no need for the court to again exercise its sentencing discretion. (People v. Buycks, supra, 5 Cal.5th at p. 896, fn. 15.) Accordingly, we will strike the section 667.5, subdivision (b), enhancement imposed in this matter. We will direct the trial court to cause to be prepared an amended abstract of judgment reflecting this modification, and to reduce appellant's total prison sentence accordingly.
DISPOSITION
Appellant's judgment is modified as follows. The one-year enhancement imposed pursuant to Penal Code section 667.5, subdivision (b), is stricken. The trial court is directed to cause to be prepared an amended abstract of judgment reflecting said modification and appellant's resulting total prison sentence of nine years eight months. The court shall forward a certified copy of the same to the appropriate authorities. With this modification, appellant's judgment is affirmed.
/s/_________
LEVY, Acting P.J. WE CONCUR: /s/_________
FRANSON, J. /s/_________
SMITH, J.