Opinion
D057192 Super. Ct. No. SCE283534
08-11-2011
THE PEOPLE, Plaintiff and Respondent, v. MANNI ALONZO SUTTON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Patricia K. Cookson, Judge. Affirmed in part, reversed in part with directions.
A jury convicted Manni Alonzo Sutton of two counts of attempted murder (Pen. Code, §§ 664, 187, subd. (a); counts 1 and 3), and two counts of assault with a semiautomatic firearm (§ 245, subd. (b); counts 2 and 4). The jury also found vicarious arming (§ 12022, subd. (a)(1)) as to all counts. The court sentenced Sutton to prison for eight years, eight months.
Statutory references are to the Penal Code unless otherwise specified.
Sutton appeals, contending the court erred by admitting Victor Sutton's (Victor) out-of-court statement as well as expert testimony regarding street gangs in San Diego County. Sutton further contends that the court did not properly instruct the jury regarding Victor's out-of-court statement. Finally, Sutton contends that the vicarious arming enhancement must be dismissed as to the two counts of assault with a semiautomatic firearm. We affirm the judgment in part and reverse in part. Only Sutton's challenge to the vicarious arming enhancement has merit.
FACTUAL BACKGROUND
On August 8, 2008, Jennifer Tamayo parked her car in the parking lot of the Easy 8 Hotel in La Mesa. Sutton, Victor, Kassaundra Parks (Sutton's girlfriend at the time), and a women identified as Lexi also were in Tamayo's car. Sutton and Victor got out of the car and went to get a hotel room.
Tamayo had parked her car next to James White's car. White got out of his car and looked into Tamayo's car. Sutton approached White and asked, "What are you looking in my car for?" White replied, "Oh, that's your girl. I didn't know that was your girl." Sutton then said, "That's not going to slide by me." Sutton walked away from White, but returned with Victor. Sutton then asked White who he was and where he was from. White interpreted these questions as asking about his gang status and replied, "I run with Emerald Hills." Sutton responded, "Okay. Well, I'm from O'Farrell Park." Emerald Hills and O'Farrell Park are rival Blood set gangs in San Diego County. Sutton ultimately challenged White to a fight. They decided to fight in a parking lot behind Burlington Coat Factory because the Easy 8 Hotel parking lot had video cameras.
White called his friend, Matthew Hills, and told him about his altercation with Sutton. At the time, Hills was on his way to the Easy 8 Hotel with his girlfriend, Anika Roberts. Hills met White in the Easy 8 Hotel parking lot and then both drove their cars to the Burlington Coat Factory.
Sutton and Victor returned to Tamayo's car, and Sutton appeared agitated because of his conversation with White. Tamayo drove her car toward the Burlington Coat Factory, with Victor in the front passenger seat, Sutton sitting in the back seat directly behind Victor, and Parks sitting in the middle of the back seat. In the car, Sutton said that he wanted to fight White. Victor then said, "We don't fight-- we don't fight no more" and said that he was going to shoot "them." On the way to the Burlington Coat Factory, Victor was loading his gun.
Tamayo did not park her car in the Burlington Coat Factory parking lot, but instead parked near a 99 Cent Store, located on a hill above the Burlington Coat Factory. Victor told Tamayo to wait for Sutton and him so they could get away. Tamayo kept her car running while she waited for Sutton and Victor to return.
At the Burlington Coat Factory parking lot, White got out of his car and prepared to fight Sutton. Both Sutton and Victor got out of Tamayo's car and started walking toward White with Sutton in the lead at a fast pace. White said to Sutton, "After this, this is going to be it." Sutton responded, "This will never be it." White and Sutton then started to fight.
Victor had been following Sutton at a slower pace. When Hills saw Victor approaching, he got out of his car and stood by the front of it watching White and Sutton fight. Hills told Victor, "Man, it's a one-on-one." Victor then pulled a gun from behind his back and shot Hills twice. Upon hearing the shots, White let go of Sutton and Sutton moved to the side. Victor then shot White four times.
After the shootings, Sutton and Victor ran back to Tamayo's car. Tamayo drove very fast out of the parking lot, and Victor had to calm her down. Sutton was anxious to get out of the car and go home, so Tamayo dropped him off at a gas station. Tamayo then dropped off Parks and Lexi at another hotel because she and Victor were going to leave town.
DISCUSSION
Sutton contends the court erred by admitting Victor's out-of-court statement as well as expert testimony from William Cahill regarding street gangs. Sutton also contends the court failed to properly instruct the jury under CALCRIM No. 418 about the coconspirator exception to the hearsay rule. Finally, Sutton argues that the court improperly enhanced his sentence under section 12022, subdivision (a) (vicarious arming) because the charged offense of assault with a semiautomatic firearm includes arming as an element of the offense.
We hold that Sutton forfeited his claims regarding the admissibility of the disputed evidence and the jury instruction. In addition, we conclude that Sutton's challenge to his sentence enhancement under section 12022 has merit.
I
VICTOR'S OUT-OF-COURT STATEMENT AND THE GANG EVIDENCE
At trial, Parks testified about Victor's out-of-court statement. She was riding to the Burlington Coat Factory in Tamayo's car with Sutton and Victor, when Victor said, "We don't fight -- we don't fight no more," and that he was going to shoot "them." While Sutton's counsel did not object to this testimony at trial, the People previously brought a motion in limine to prevent Sutton from introducing this evidence. At that time, the People were proceeding under the theory that Sutton was the shooter. Sutton thus sought to introduce the statement (as a statement against penal interest) to show that Victor was the shooter, but the People argued the statement was inadmissible hearsay. The court agreed and ruled that Sutton could not introduce the statement. Before trial, the People changed their theory of the case, admitting that Victor was the shooter, but charging Sutton under an aiding and abetting theory.
At trial, the People offered Victor's out-of-court statement, but Sutton's counsel did not object or remind the court that the People had previously opposed the statement's admission. Instead, Sutton's counsel cross-examined Parks about Victor's statement and commented on it during closing argument.
At trial, the People offered Cahill as their expert witness regarding African-American street gangs in San Diego County. Cahill testified about the number of Blood sets in San Diego, rival gangs, and gang lexicon and culture. Sutton's counsel did not object to Cahill's testimony. To the contrary, Sutton's counsel cross-examined Cahill extensively, questioning him about the number of gang members in San Diego, the location of gangs in San Diego County, the age of gang members, the reasons an individual might join a gang, the characteristics of gang members, and the types of gang members. Sutton's counsel further cross-examined Cahill to establish that gang members often possess guns and to explain why Sutton and White's altercation escalated into a fight. In all, Sutton's counsel elicited more testimony from Cahill than did the People. Sutton's counsel also referred to the gang evidence throughout his closing argument while commending Cahill for being a "very good witness, very believable."
After using both Victor's out-of-court statement and the gang evidence at trial, Sutton now argues that the court erred in admitting the evidence. Recognizing that these issues were not raised in the trial court, Sutton argues they have not been forfeited, and, even had they been forfeited, his counsel was then ineffective for failing to raise them. We reject each contention.
II
FORFEITURE
A party who does not to object to evidence at trial fails to preserve the point for appeal. (People v. Lewis (2001) 25 Cal.4th 610, 664.) Specifically, a party's failure to object at trial on the grounds of hearsay forfeits that claim on appeal. (People v. Waidla (2000) 22 Cal.4th 690, 717; People v. Wheeler (1992) 4 Cal.4th 284, 300.) Likewise, a party's failure to object to the gang evidence as irrelevant and prejudicial forfeits that claim on appeal. (See People v. Lindberg (2008) 45 Cal.4th 1, 48 [defendant's failure to object to evidence on the same ground as is raised on appeal results in forfeiture of the appellate claim]; People v. Eckstrom (1986) 187 Cal.App.3d 323, 332 [failure to object to evidence on the same ground as urged on appeal precludes appellate review of the issue].) This bar "is but an application of the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal. [Citation.]" (People v. Rogers (1978) 21 Cal.3d 542, 548 (Rogers).)
The objection requirement is necessary in criminal cases because a "contrary rule would deprive the People of the opportunity to cure the defect at trial and would 'permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal.' [Citation.]" (Rogers, supra, 21 Cal.3d at p. 548.) "The reason for the requirement is manifest: a specifically grounded objection to a defined body of evidence serves to prevent error. It allows the trial judge to consider excluding the evidence or limiting its admission to avoid possible prejudice. It also allows the proponent of the evidence to lay additional foundation, modify the offer of proof, or take other steps designed to minimize the prospect of reversal." (People v. Morris (1991) 53 Cal.3d 152, 187-188, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)
Here, Sutton's failure to object at trial denied the opportunity to both the trial court to consider excluding the evidence and the People to cure any alleged defects. Further, the record underscores that Sutton wanted Victor's out-of-court statement and the gang evidence admitted. Sutton's counsel cross-examined Parks about Victor's statement in an effort to show Sutton and Victor did not have the same intent in fighting with White. Sutton's counsel also referred to Victor's out-of-court statement during his closing argument.
In addition, Sutton's counsel thoroughly cross-examined Cahill, eliciting further testimony from him regarding gang culture and utilizing a hypothetical to help explain the genesis of the fight between Sutton and White. Sutton's counsel also used the gang evidence in his closing statement and even referred to Cahill as a "very good witness, very believable." Far from objecting to either Victor's statement or the gang evidence, Sutton made the evidence a critical part of his own defense. In other words, even if the court erred in admitting this evidence, Sutton invited the error. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49 [" '[i]f defense counsel intentionally caused the trial court to err,' " acting for tactical reasons and not out of mistake, the claim is barred on appeal as invited error]; People v. Prieto (2003) 30 Cal.4th 226, 264-265 (Prieto)[defense counsel's deliberate tactical choice to request an instruction bars consideration of error in the giving of the instruction on appeal]; see also People v. Rodrigues (1994) 8 Cal.4th 1060, 1193 ["Inasmuch as defendant both suggested and consented to the responses given by the court, the claim of error has been waived"].)
III
INEFFECTIVE ASSISTANCE OF COUNSEL
Sutton contends that even had he forfeited his challenges to Victor's statement and the gang evidence, his trial counsel was ineffective within the meaning of the Sixth Amendment. We conclude Sutton has not met his burden to establish ineffective assistance of counsel.
To show that trial counsel's performance was constitutionally defective, an appellant must prove: (1) counsel's performance fell below the standard of reasonableness, and (2) the "deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Competency is presumed unless the record affirmatively excludes a rational basis for trial counsel's choice. (People v. Ray (1996) 13 Cal.4th 313, 349; People v. Musselwhite (1998) 17 Cal.4th 1216, 1260.)
Here, the record does not provide us with any information from which we could determine whether Sutton has met his burden to show ineffective assistance of counsel. All we know from this record is that Sutton's counsel did not object to Victor's statement or the gang evidence. We cannot simply assume ineffective representation without a record that shows trial counsel's reasoning. This is particularly true when, as we already discussed, the record indicates that trial counsel made a tactical decision not to object to the evidence. We generally defer to the tactical decisions of trial counsel. Because "the decision whether to object . . . is highly tactical" (People v. Catlin (2001) 26 Cal.4th 81, 165), counsel's "failure to object will rarely establish ineffective assistance" (People v. Hillhouse (2002) 27 Cal.4th 469, 502).
An appellate court generally cannot fairly evaluate counsel's performance at trial based on a silent record. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) In many instances, like here, evaluation of a claim of ineffective assistance of counsel will have to await a petition for writ of habeas corpus, should the defendant believe there is a viable claim that can be pursued. (Ibid.)Accordingly, we conclude that Sutton's claim of ineffective counsel is without merit.
IV
CALCRIM NO. 418
Sutton also contends the court erred by failing to instruct the jury sua sponte that it had to find a conspiracy existed before it could consider Victor's statement. Our Supreme Court has never decided whether, or to what extent, a trial court has a sua sponte duty to instruct the jury with conspiracy instructions before admitting evidence of hearsay statements by a coconspirator. (See Prieto, supra, 30 Cal.4th at p. 251; People v. Sully (1991) 53 Cal.3d 1195, 1231.) No published Court of Appeal opinion has directly decided the issue either, and it is not necessary for us to do so.
As a threshold matter, by failing to object to or request a specific jury instruction at trial, Sutton forfeited this claim on appeal, unless the claimed error affected Sutton's substantial rights. (See § 1259; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7.) "Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim—at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was." (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) We conclude that Sutton has not shown that the claimed error affected his rights; thus, he has forfeited his claim.
We review a claim of instructional error de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) "Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.' [Citation.]" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) In determining whether error has been committed in giving jury instructions, we consider the instructions as a whole and assume jurors are intelligent persons, capable of understanding and correlating all jury instructions which are given. (Ibid.) " 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' [Citation.]" (Ibid.) "The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions." (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)
Here, the court gave the following CALCRIM No. 418 instruction:
"In deciding whether the People have proved that the defendant committed any of the crimes charged, you may not consider any statement made out of court by Kassaundra Parks unless the People have proved by a preponderance of the evidence that, number one, some evidence other than the statement itself establishes that a conspiracy to commit a crime existed when the statement was made; number two, Manni Sutton and Victor Sutton were members of and
participating in a conspiracy when they made the statement; number three, Manni Sutton and Victor Sutton made the statement in order to further the goal of the conspiracy; and, number four, the statement was made before or during the time the defendant was participating in the conspiracy.
"A statement means an oral or written expression or nonverbal conduct intended to be a substitute for an oral or written expression.
"Proof by a preponderance of evidence is a different standard of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. You may not consider statements made after the goal of conspiracy has been accomplished."
Sutton acknowledges the instruction was given, but claims it was inadequate because it referred to an out-of-court statement from Parks, not Victor. However, after the first sentence mentioned Parks, the rest of the instruction referenced only Sutton and Victor. For example, it explicitly referred to a conspiracy between Sutton and Victor and a statement made by Sutton and Victor in furtherance of that conspiracy. But for the mention of Parks in the first sentence, the CALCRIM No. 418 instruction was consistent with the two immediately preceding instructions dealing with evidence of an uncharged conspiracy between Sutton and Victor (CALCRIM No. 416) and Sutton's liability for his coconspirator's (Victor's) acts (CALCRIM No. 417).
Further, Sutton has not pointed us to, nor could we find in the record, any out-of-court statement by Parks offered at trial. There was no evidence Parks entered into a conspiracy with anyone. Instead, it is clear that the only conspiracy discussed at trial was between Sutton and Victor. "An instruction can only be found to be ambiguous or misleading if, in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words." (People v. Campos (2007) 156 Cal.App.4th 1228, 1237.) Thus, a single jury instruction that alone "could [be] confusing" may not constitute error if an accompanying instruction clarifies any potential confusion. (See People v. Simpson (1954) 43 Cal.2d 553, 566.)
We are satisfied that CALCRIM No. 418 did not confuse the jury to such an extent as to warrant reversal. The jury could have used this instruction in one of two ways. First, the jury could have applied it to Victor's out-of-court statement, and thus, would have considered CALCRIM No. 418's requirements before considering Victor's statement. If the jury did so, then there was no error.
Second, the jury could have ignored CALCRIM No. 418 altogether because neither the People nor Sutton offered any out-of-court statement by Parks at trial. Even if the jury ignored the instruction, Sutton did not suffer any prejudice. There was sufficient prima facie evidence of the existence of a conspiracy, such that Victor's out-of-court statement was admissible, and that statement further established that Sutton was part of a conspiracy. For example, on the way to the Burlington Coat Factory, Victor loaded his gun while Sutton was in the car. Victor told Tamayo to park up the hill from the Burlington Coat Factory and be ready to leave quickly. Tamayo kept her car running while she waited for Sutton and Victor. At the beginning of their fight, White told Sutton, "After this, this is going to be it," to which Sutton replied, "This will never be it." After hearing shots fired, White let go of Sutton. Sutton merely moved to the side, and Victor shot White four times. Both Victor and Sutton fled the scene of the shootings and separated. Sutton lied to the police, claiming that he was never at the Burlington Coat Factory on the night of the shootings. Sutton's counsel argued that the gang evidence supported the theory that Victor would arm himself for the fight with White. In short, the evidence established that Victor's statement was made during and in furtherance of a conspiracy, and any failure to instruct on the preliminary facts set forth in CALCRIM No. 418, as to Victor's out-of-court statement, was not prejudicial. (See Prieto, supra, 30 Cal.4th at p. 251; People v. Sully, supra, 53 Cal.3d at p. 1231.)
A jury may find a defendant knowingly made a false or misleading statement regarding the charged crime, thus showing he was aware of his guilt of the crime. (People v. Rankin (1992) 9 Cal.App.4th 430, 436 [regarding CALJIC No. 2.03]; cf. People v. Coffman and Marlow, supra, 34 Cal.4th 1, 102 [regarding CALJIC Nos. 2.04 and 2.06].)
The People argue that Victor's out-of-court statement need only be made in furtherance of any conspiracy between Victor and Sutton (i.e., to fight White), not just a conspiracy to shoot White. Because we conclude sufficient evidence exists to support the jury finding Victor and Sutton entered into a conspiracy to shoot White, we do not address this issue.
Because Sutton cannot show prejudice relating to the CALCRIM No. 418 instruction, his claim of ineffective assistance of counsel regarding this instruction fails as well. Sutton cannot show, but for counsel's asserted deficiency, there is a reasonable probability that a determination more favorable to him would have resulted. (In re Cudjo (1999) 20 Cal.4th 673, 687; Strickland v. Washington, supra, 466 U.S. at p. 697.)
V
SENTENCE ENHANCEMENT
Sutton contends, and the People concede, the court erred by imposing a consecutive one-year term for vicarious arming regarding the two counts of assault with a semiautomatic firearm. We agree.
"Subdivision (a)(1) of section 12022 authorizes a one-year enhancement for the use of a firearm in the commission of a felony, 'unless the arming is an element of that offense.' " (People v. Sinclair (2008) 166 Cal.App.4th 848, 855.) Section 245, subdivision (b) provides, "Any person who commits an assault upon the person of another with a semiautomatic firearm shall be punished by imprisonment in the state prison for three, six, or nine years." Because being armed with a semiautomatic firearm is an element of the underlying offense, it was error for the court to apply the one-year enhancement to Sutton's convictions for assault with a semiautomatic firearm. (See Sinclair, supra, at pp. 855-856.)
In addition, we are troubled by the disparity of the sentences between Sutton and Victor. Victor, Sutton's older brother and the actual shooter of White and Hills, was permitted to plead guilty to an accessory after the fact (§ 32) charge and was sentenced to prison for eight months. Sutton, on the other hand, was not the shooter and only 16 years old at the time of the shootings, but was convicted of two counts of attempted murder and two counts of assault with a semiautomatic firearm and sentenced to prison for eight years, eight months. This disparity appears to arise from the People's mistaken belief that Sutton was the shooter, a belief they maintained until the day the jury was selected (July 11, 2010) when the People filed a second amended information based on the theory Sutton was not the shooter. This confusion could have been avoided had the People timely interviewed percipient witnesses. Having not done so, they allowed the older and arguably more culpable brother, Victor, to plead to a lesser crime and serve a much shorter prison sentence than Sutton. On the record before us, however, we cannot rectify this possible miscarriage of justice.
VI
CUMULATIVE ERROR
Sutton contends the cumulative effect of the asserted errors rendered the trial so unfair as to violate his federal and state constitutional rights to due process warranting reversal of the judgment. In all but one instance, we have rejected Sutton's claims of error. The only error involved sentencing and did not render Sutton's trial unfair. Because we hold no other errors exist, this cumulative error argument necessarily fails. (Cf. People v. McWhorter (2009) 47 Cal.4th 318, 377 [no cumulative effect of errors when no error]; People v. Butler (2009) 46 Cal.4th 847, 885 [rejecting cumulative effect claim when court found "no substantial error in any respect"].)
DISPOSITION
This case is remanded to the trial court with directions to strike the one-year enhancement of Sutton's sentence under section 12022, subsection (a)(1) as to counts 2 and 4 (assault with a semiautomatic firearm). In all other respects, the judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
McINTYRE, J.
IRION, J.