P. v. Free

Filed 9/27/07 P. v. Free CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County.

John Meigs, Judge. Affirmed with directions.

Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Lisa J. Brault, Deputy Attorneys General, for Plaintiff and Respondent.

Terrence Dwayne Free appeals from the judgment entered after a jury trial that resulted in his convictions for second degree murder (Pen. Code 187, subd. (a);

count 1)[1]during which crime he personally and intentionally discharged a firearm resulting in death ( 12022.53, subds. (b), (c), & (d)) and for possession of a firearm by a felon ( 12021, subd. (a)(1); count 2). He was sentenced to prison on count 1 to 15 years to life, plus 25 years to life on one firearm enhancement ( 2022.53, subd. (d))[2], and on count 2 to a concurrent 2 year middle term.

Appellant contends the trial court committed prejudicial error by failing to find a prima facie case that two African-American jurors were excused based on unconstitutional group bias. He contends the judgment is infirm, because one jurors oath was defective, and thus, ineffective. He contends the trial court improperly excluded evidence of the victims propensity for violence and permitted the jury to consider appellants prior felony conviction for impeachment. He further contends his counsel was ineffective for failing to seek redaction of appellants police interviews. Appellant also contends the trial court erred in failing to stay the punishment on count 2 in violation of section 654 and in staying instead of striking the lesser firearm enhancements under subdivisions (b) and (c) of section 12022.53. He contends, and respondent concedes, the abstract of judgment should be corrected to delete language that the determinate term on count 2 be served first.

BACKGROUND

We view the evidence in the light most favorable to the People and presume the existence of every fact the trier could reasonably deduce from the evidence that supports the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) This evidence established that during an argument between his mother and her boyfriend, appellant retrieved a gun from a dresser in his room and shot the boyfriend in the back, and the boyfriend died from gunshot complications.

In February 2004, appellant resided with his mother Beverly Steele, her two year old son, her nine year old son, and her boyfriend, Clarence Bowers in an apartment on Dixon Avenue, in Inglewood. On February 16, 2004, in the evening, Bowers and Steele argued, because Bowers was upset that Steele had gone somewhere with a girlfriend. The next morning, the two again argued for a couple of hours in their bedroom. At one point, Bowers left the room. Upon return, he set up the ironing board, walked over to Steele, and threw a cup of water in her face.

Steele tried to retrieve clothes from the closet in order to leave, but Bowers, cursing and calling Steele names, continually pushed and poked her back onto the bed. He was hitting and pushing Steele around the room although she told him to stop and leave her alone. Steele opened the door. While standing in the doorway, Bowers grabbed her by the neck and threw her against the wall. She screamed for him to let go, but he held her there with an arm on her left bicep. His other was on her throat. He was choking her.

Steele then heard a pop. Bowers said he had been shot and that he was sorry. He told appellant, who was nearby, to leave and directed both to tell police he had been shot outside and ran inside.

About 10:23 a.m., the police arrived. Bowers, who was bleeding from his back, repeatedly said he was dying. He told police that an unknown person shot him in the back as he walked in the yard and going inside, he told Steele that he was dying.

Steele first told police she heard a gunshot coming from within the house as Bowers was running inside. She later told police about their argument in the bedroom and that after she opened the door, Bowers grabbed her by the neck, and he was shot.

From February 17 until his death on March 8, 2004, Bowers was at Martin Luther King Jr. Hospital. For a good portion of his stay, Bowers was in the intensive care unit. There was some talk that if Bowers were to recover, he would be taken to Rancho Domiguez for rehabilitation.

During the initial police interview, appellant stated he was not home and did not know what happened. In a second interview,[3]appellant admitted that during an argument between his mother and Bowers, appellant grabbed a gun from his rooms dresser, and after Bowers pushed and slapped Steele across the face, appellant shot him.

At trial, appellant testified that he and Bowers had had a good relationship. He told Bowers about the abusive relationships between his mother and prior boyfriends and that appellant would

not get involved in Bowers arguments with his mother as long as he didnt put his hands on her[.] Appellant acknowledged hearing his mother and Bowers argue before the day of the shooting but denied ever getting involved. He admitted that during these prior arguments he never got out his gun.

On this occasion, appellant happened to overhear his mother yelling, Put your hands on me again. Put your hands on me again. Upon hearing the word again, he realized Bowers must have put his hands on Steele before.

Grabbing his gun out of the drawer, a little compartment in the [dresser] drawer in his room, appellant watched for some seconds. After hearing a loud thump like something fell, appellant become more concerned. As his mother tried to escape from the room, Bowers grabbed her, put his hands to her face or throat, and as he pinned her, appellant shot him. He denied his intent was to kill Bowers; rather, he just wanted to stop him from the initial attack.

On cross-examination, appellant admitted he had warned Bowers that if he ever caught anyone messing with his mother he would kill him. He further admitted that he had extended his arm before shooting and that in the National Guard he was trained never to point a weapon unless he meant to use it.

DISCUSSION

1. Any Defective Juror Oath Nonprejudicial

Appellant contends that reversal of the judgment is mandated, because the trial court allowed juror 4834 in seat 5 (hereafter, juror 5) to be seated although juror 5 did not in fact take the prescribed juror oath. The record reflects both that appellant forfeited his claim of error and any defect in the oath taken was nonprejudicial.

a. Taking of the Juror Oath

After the jury panel had been selected, the jurors were directed to stand and be sworn. The jurors raised their right hands, and the court clerk inquired: You do, and each of you, understand and agree that you will well and truly try the cause now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the court. Afterward, the clerk asked: If you understand these instructions, please signify by stating I do. Collectively, the jurors answered in the affirmative.

Juror 5 then asked to confer with the trial court. At sidebar, the following colloquy transpired:

[Juror 5]: My hearing is awful and there are times when it doesnt quite matter, but if Im only getting 75 percent of whats being said --

THE COURT: Were going to fit you with an assistive listening device.

[Juror 5]: Yes, Im going to have something.

THE COURT: As soon as we take a break youll get the device.

Juror 5]: Great. Because I can swear to something I can hear so if Im being asked -

THE COURT: You will be fitted with an assisted listening device before there is any testimony given. You can [take] your seat.

After the first alternate juror was selected, the clerk read the oath to the alternate, who also answered in the affirmative. A recess was then called, and juror 5 was directed to approach the bailiff about the listening device. When court proceedings resumed, a second alternate juror was selected. Afterward, the clerk again read the oath, and the second alternate responded in the affirmative.

b. Failing to Object and Request Retaking of Oath Forfeiture

Initially, we point out appellant could have objected and requested that juror 5 be required to retake the oath after being fitted with an assistive listening device. He does not claim such objection and request would have been futile. We therefore conclude appellants failure to invoke this procedure, which would have cured the harm that might have arisen from any defect in the oath taken by the hard-of-hearing juror 5, forfeits his claim of error on appeal. (See, e.g., People v. Stowell (2003) 31 Cal.4th 1107, 1114; People v. Saunders (1993) 5 Cal.4th 580, 589-590.)

c. Any Defect in Oath NonPrejudicial

We further conclude that any defect in the oath taken by jury 5 does not compel reversal of the judgment. The record is ambiguous regarding the significance of juror 5s post-oath statement to the trial court to the effect that it was [g]reat he would get an assistive listening device, [b]ecause I cant swear to something I cant hear so if Im being asked.

When viewed in context, this statement signifies that juror 5 was concerned about his ability to carry out his oath rather than the nature of the oath he had sworn collectively with the other jurors. To the extent this statement might be construed to signify that juror 5 was not able to hear, and thus, understand and swear the oath administered by the clerk, this defect was nonprejudicial.

Any inability of juror 5 to hear the entirety of the oath to which he swore was inconsequential, because after being fitted with an assisted listening device, juror 5 was present when the identical oath was administered to the second alternate juror. Afterwards, Juror 5 could have raised his lack of understanding or agreement with any portion of this oath regarding his duties as a juror. His silence implies he had none.

Additionally, following a recess, the trial court expressly instructed the jury on their basic functions, duties, and conduct as selected and sworn . . . jurors and alternate jurors, and just prior to deliberations, the court also instructed the jury on these matters pursuant to CALJIC 1.00, a copy of which was provided to the jury to consult. (See, e.g., People v. Carter (2005) 36 Cal.4th 1114, 1175-1177 [failure to administer juror oath to all jurors prior to jury selection commencement harmless were jury ultimately instructed on duty to follow courts instructions; jury presumed to have adhered to these instructions; and no prejudice shown by defendant from absence of oath].)

2. No Prima Facie Case of Racial Juror Excusal Shown

Appellant, an African-American male, contends the trial court erred in finding excusal of African-American male prospective jurors 5139 in seat 12 and 3409 in seat 6 (hereafter, jurors 12 and 6, respectively) did not constitute a prima facie case of group bias.[4] We disagree. He fails to meet his burden to make a prima facie showing of group basis.

a. Pertinent Voir Dire Proceedings

During voir dire, juror 12 stated he was single and resided in Los Angeles County. He was employed as an executive recruiter in the finance and accounting industry and had prior criminal jury experience in which the jury reached a verdict. He had no friends or family in law enforcement, nor were any close friends or relatives victims of crimes.

He did have two uncles who were charged with crimes. One uncle had been charged with murder in California over 20 years ago. Another uncles drug offense case was ongoing, regarding which juror 12 thought [f]or the most part, the uncle had been fairly treated by the criminal justice system.

Juror 12 also related that he had been shot during an attempted carjacking in California about 16 years ago. Although he reported the crime to police, no one had been arrested. He believed there was nothing about the crime that would affect his ability to be fair in this case.

Juror 6 stated he resided in Los Angeles and was employed by Cal Trans. His wife worked for the post office. He served as a juror on a criminal and two civil cases, each of which had resulted in verdicts. He admitted to a D.U.I. over 10 years ago and felt he had been fairly treated by the justice system. He denied that incident would affect his ability to be fair in this case.

At side bar, defense counsel argued the prosecutor had exercised a disproportionate number of . . . peremptory challenges . . . against Black potential jurors and that this extraordinary disproportionality was apparent if the percentage of the total jury pool were compare[d with the] percentage of Black jurors that the prosecution has eliminated[.] He further argued that as for the individual Black prospective jurors who have been dismissed by the prosecution, especially No. 6, there appears to be no glaring or no particular reason or particular profile that distinguishes them from any of the jurors of any other race that the prosecution has passed on.

The court responded no pattern had been shown and recounted the peremptory challenges that had been made: The prosecutor executed six challenges, the first three challenges were male Whites, the fourth challenge was the female Hispanic, [and] the fifth and sixth challenges were male Blacks. [Defense counsel] executed seven challenges; [the] first three challenges were female Whites, [the] fourth challenge was a male White, [the] fifth challenge was a male Hispanic, [the] sixth was a female White, [and the] seventh was a male White.

The court added: The fact that two of the six challenges by the People were male Blacks given the large number of male Blacks in the panel, I dont think shows any animus, not to mention the last person that was excused had indicated he had had a prior conviction for driving under the influence. I dont think that theres been any kind of a pattern demonstrated that would even cause the People to have to justify the use of the challenge.

The prosecutor stated for the record that he had accepted the panel which contains at this time at least three Black people in the prospective venire and clarified that he had done so twice.

The trial court denied the defense motion challenging the prosecutors use of his peremptory challenges.

b. Standard of Review

Both the United States and the California Constitutions prohibit the exercise of peremptory challenges solely because of group bias. (Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258.) (People v. Johnson (2006) 38 Cal.4th 1096, 1098.)

The United States Supreme Court has recently reaffirmed that Batson states the procedure and standard to be used by trial courts when motions challenging peremptory strikes are made. First, the defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. [Citations.] Second, once the defendant has made out a prima facie case, the burden shifts to the State to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes. [Citations.] Third, [i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination. [Citation.] (Johnson v. California (2005) 545 U.S. 162, [168], fn. omitted.) [Citation.] [Our Supreme Court has] endorsed the same three-part structure of proof for state constitutional claims. [Citations.] (People v. Bell (2007) 40 Cal.4th 582, 596.)

The Batson court explained: In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a pattern of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutors questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutors use of peremptory challenges creates a prima facie case of discrimination against black jurors. (Batson v. Kentucky (1986) 476 U.S. 79, 96-97.)

Where the objector has failed to make out a prima facie showing of group bias, a comparison of the challenged prospective jurors and seated jurors [is] neither necessary nor appropriate. (People v. Bell, supra, 40 Cal.4th 582 at p. 600.) In the circumstances of this first-stage Wheeler-Batson case, comparative juror analysis would make little sense. In determining whether defendant has made a prima facie case, the trial court d[oes] not ask the prosecutor to give reasons for his challenges[.] . . . Where . . . no reasons for the prosecutors challenges were accepted or posited by either the trial court or this court, there is no fit subject for comparison. Comparative juror analysis would be formless and unbounded.[5] (Id. at 600-601; accord, People v. Bonilla (2007) 41 Cal.4th 313, 350 [declining to engage in comparative juror analysis in first-stage Wheeler/Batson case and reaffirming such analysis of little or no use regardless of [w]hatever use comparative juror analysis might have in a third-stage case for determining whether a prosecutors proffered justifications for his strikes are pretextual].)

c. Mere Racial Makeup of Jurors Not Prima Facie Showing

The trial court did not announce the test it applied in finding appellant had failed to make a prima facie showing of group bias. This is of no moment. Even assuming the trial court applied the wrong standard, however, reversal is not necessarily required. Where it is unclear whether the trial court applied the correct standard, we review the record independently to apply the high courts standard and resolve the legal question whether the record supports an inference that the prosecutor excused a juror on a prohibited discriminatory basis. [Citations.] (People v. Bell, supra, 40 Cal.4th 582, 596, emphasis original.)

We conclude that under the proper standard, appellant failed to make a prima facie showing that the prosecutor impermissibly challenged jurors 12 and 6 on the basis of their African-American descent. [E]ven the exclusion of a single prospective juror may be the product of an improper group bias. As a practical matter, however, the challenge of one or two jurors can rarely suggest a pattern of impermissible exclusion. [Citation.] (People v. Bell, supra, 40 Cal.4th 582, 598, emphasis original.)

This is not the situation of a close case in the view of the trial court. (Cf. Johnson, supra, 545 U.S. at p. 173 [In this case the inference of discrimination was sufficient to invoke a comment by the trial judge that we are very close, and on review, the California Supreme Court acknowledged that it certainly looks suspicious that all three African-American prospective jurors were removed from the jury [Citation.]].) Of his six peremptory challenges, the prosecutor here exercised three against male Caucasians and another against a female Hispanic. In contrast, he exercised only two against African-American males. He thus did not use a disproportionate number of his peremptories against the group. [Citation.] (People v. Bell, supra, 40 Cal.4th 582, 598.)

Moreover, prior to excusing juror 6 during the third round of peremptory challenges, the prosecutor twice had accepted the panel as constituted. Additionally, the prosecutor did not peremptorily challenge most or all African-Americans. As acknowledged by appellant, at least three jurors of African-American descent remained in the prospective venire. (See, e.g., People v. Buchanan, supra, 143 Cal.App.4th 139, 147 [no comments by the trial court indicating that the People were teetering on the brink of a prima facie case [and] numerous Hispanics remained on the panel of prospective jurors].)

In view of the totality of the circumstances, the facts relied upon by appellant simply fail to give[] rise to an inference of discriminatory purpose. (People v. Bell, supra, 40 Cal.4th 582, 599, quoting Johnson v. California, supra, 545 U.S. at p. 168.) The trial court therefore properly denied the Wheeler/Batson motion based on appellants failure to make a prima facie showing of group bias.

3. Exclusion of Character Evidence Not Prejudical Error

Appellant contends exclusion of evidence reflecting the victims violent character abridged his right to present a defense based on perfect and imperfect self-defense and defense of others. We conclude that exclusion of evidence about whether Bowers had been convicted of a crime or incarcerated was well-within the trial courts discretion and preclusion of appellants testimony about what Bowers related as to his own prior violent prison conduct was nonprejudicial.

a. Standard of Review

As a general proposition, the ordinary rules of evidence do not infringe on a defendants right to present a defense. [Citation.] Trial courts possess the traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice. [Citation.] The trial courts rulings in this regard will not be overturned on appeal unless it can be shown that the trial court abused its discretion. [Citation.] Nonetheless, the trial courts discretion is not without limits, particularly if it operates to hamper defense counsels ability to present evidence. [Citation.] (People v. Frye (1998) 18 Cal.4th 894, 945; see also, People v. Mincey (1992) 2 Cal.4th 408, 440.)

Although we recognize that a criminal defendant has a constitutional right to present all relevant evidence of significant probative value in his favor [citations], [t]his does not mean that an unlimited inquiry may be made into collateral matters; the proffered evidence must have more than slight-relevancy to the issues presented. [Citation.] [T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on . . . cross-examination based on concerns about, among other things, harassment, prejudice, confusion of issues, the witness safety, or interrogation that is repetitive or only marginally relevant. [Citations.] (People v. Jennings (1991) 53 Cal.3d 334, 372, emphasis original.)

b. Exclusion of Incarceration And Conviction Evidence Proper

During cross-examination, Katheryn Bowers, Bowers mother, was asked if she knew whether Bowers had been incarcerated or ever had been convicted of a crime. The prosecutor objected on relevance and hearsay grounds. The court ruled [o]bjection . . .  sustained.

At sidebar, the court pointed out that Steele already had testified, without objection, about the beatings. In response to the courts inquiry, defense counsel denied the anticipated evidence was to be used to impeach Bowers, who would not be testifying, or as character evidence. He explained that he was simply establishing a pattern of violence . . . to corroborate some of the things that Ms. Steele talked about. The prosecutor objected this would be inadmissible character evidence. The court sustained the objection.

A victims character for violence or aggressiveness (or both) is highly probative where the defense asserted is self-defense or defense of others. (See, e.g., People v. Wright (1985) 39 Cal.3d 576, 587; People v. Rowland (1968) 262 Cal.App.2d 790, 797; see also Evid. Code, 1103, subd. (a)(1).)

In this instance, the general inquiry about whether Bowers ever had been incarcerated or convicted of a crime is not designed to elicit evidence of Bowers character for violence or aggressiveness. Rather, the thrust of this inquiry simply was to portray Bowers as a bad person, which is inadmissible propensity evidence. (See generally, People v. Malone (1988) 47 Cal.3d 1, 17-18 [The principles governing admission of uncharged crimes are well established. Evidence of other crimes or prior bad acts is inadmissible solely to prove an accused had the predisposition to commit the charged offense. [Citations.] . . . . [Citation.]].) The trial court thus properly excluded such evidence.

c. Preclusion of Appellants Testimony Nonprejudicial

During the defense case, appellant was asked what Bowers told him about Bowers past. The trial court sustained the prosecutors hearsay objection.

At sidebar, defense counsel argued the evidence was probative of appellants state of mind regarding the need for lethal force, which pertained to his justifiable homicide defense. As an offer of proof, counsel argued that Bowers told appellant he had spent time in prison and related various stories about Bowers severely beating up and stabbing people there. The trial court sustained the prosecutors renewed hearsay objection.

Initially, we conclude, and respondent concedes, that the trial court erred, because the evidence was being proffered for a non-hearsay purpose, appellants state of mind.[6]

On the other hand, this error was nonprejudicial. A result more favorable to appellant would not have been reasonably probable if such evidence had been admitted. (People v. Watson (1956) 46 Cal.2d 818, 836.) That Bowers told appellant previously about his prior violent acts while in prison was both cumulative and of slight probative value in the face of eyewitness evidence of Bowers aggressive and violent attack on Steele immediately preceding the shooting. (See People v. Frye, supra, 18 Cal.4th 894, 944-945, 1017 [within courts discretion to exclude proffered opinion testimony of limited probative value and no prejudice where other excluded testimony only marginally relevant]; see also, People v. Redmond (1981) 29 Cal.3d 904, 912 [no abuse of discretion where inquiry only of marginal relevance and further testimony would be cumulative, remote, confusing or misleading].)

Steele testified about Bowers hitting her, throwing her against the wall, and choking her during their extended argument. Appellant testified that he overheard Bowers and Steele arguing; after hearing a loud thump, he saw Steele attempting to escape; and he watched as Bowers grabbed Steele and placed his hands on her face or throat, pinning her. He told police that Bowers had slapped his mother.

4. No Ineffective Assistance of Counsel as to Unredacted Tapes

Appellant contends his counsel was ineffective for failing to request redaction of the taped police interviews during which references were made that appellant was in a gang and may have committed a robbery. We find appellant has failed to carry his burden.

The burden of sustaining a charge of inadequate or ineffective representation is upon the defendant. The proof . . . must be a demonstrable reality and not a speculative matter. [Citation.] (People v. Karis (1988) 46 Cal.3d 612, 656.) To prevail on a claim of ineffective assistance of counsel, defendant must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice. [Citation.] Prejudice occurs only if the record demonstrates a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. [Citation.] (People v. Lucero (2000) 23 Cal.4th 692, 728.)

[W]e turn first to the question of prejudice. Finding no prejudice, we do not address the question of counsels performance. [Citations.] (In re Ross (1995) 10 Cal.4th 184, 204; see also, In re Alvernaz (1992) 2 Cal.4th 924, 945.)

During appellants first interview, Detective Kevin Lane indicated there were some allegations that appellant was from Project Crips or Watts and let appellant know, Im not dealing with that[.]

Shortly, Lane asked if appellant ever had been affiliated with Project Crips. He added that before appellant responded he wanted him to know that he himself had been involved in all kinds of investigations of gangs and had dealings with gang members and that his intent was to find out whether appellant tell him the real story or if he was going to get [one] over on [Lane].

Appellant responded that he grew up in the Imperial Courts; he had lived there all my life, born and raised over there; and he had done some dumb sh-t when [he] was younger.

He then indicated that he no longer belonged to a gang. Appellant explained that he had joined the National Guard and that while he was on deployment, his mother moved into rival gang territory. Although hit . . . up a number of times by rival gang members, he repeatedly responded, I dont bang . . . Im not with that. Later, they all became friendly with each other.

In response to Lanes inquiry, appellant admitted that although he went out with rival gang members, he still had homeboys from . . . PJs too. He added that he would not allow anything to happen between either gangs.

Lane subsequently indicated he was merely interviewing rather than arresting appellant. Appellant indicated his understanding by mentioning he had another case like that. They charged me with a robbery like that.

No prejudice flowed from the omission of defense counsel to request the above references to gangs and a prior robbery charge be redacted. Initially, we note that during the defense case, counsel himself elicited appellants testimony that he resided in a gang neighborhood, which was dangerous. This gang reference allowed for a mitigating inference that appellants possession of a gun was warranted.

Allowing the jury to be exposed to the gang-related references in the interview by Lane did not lead to an inference that the shooting was gang-related or that appellant was a gang member when he murdered Bowers. Rather, these references enabled appellant to portray himself as credible in that he admitted his prior gang affiliation and to sway the jurys sympathies towards him based on his statements about having turned his life around. Similarly, appellants admission that he had been charged previously with robbery allowed him to convey the impression that being charged with a crime is not the same thing as having committed the crime.

Moreover, references to appellants prior gang affiliation and robbery charge pale in the face of the overwhelming evidence of his guilt: He retrieved a concealed handgun and shot an unarmed man in the back who succumbed to complications from his gunshot wound. It therefore is not reasonably probable that redaction of these references would have led to a result more favorable to appellant.

5. No Impropriety from Impeachment Use of Prior Conviction

Appellant contends that his prior felony conviction may not have been a crime of moral turpitude, and thus, the trial court erred in instructing the jury that it could consider the fact of his prior conviction in evaluating his credibility.[7] Alternatively, he contends his counsel was ineffective for failing to object to such instruction or to request a limiting instruction. We find he fails to demonstrate either error or ineffectiveness of counsel.

a. Relevant Proceedings

At sidebar, prior to opening arguments, the prosecutor inquired whether appellant intended to stipulate to the prior felony and stated that if not, he would go into the prior. Defense counsel responded appellant would stipulate and not make the prosecutor prove it up[.]

During the Peoples case in chief, the trial court advised appellant that in count 2, he was charged with possession of a firearm by a felon ( 12021, subd. (a)(1)) and it was alleged that on November 14, 2003, in Los Angeles Superior Court case number YA056528 he had been convicted of a violation of section 12031. The court asked whether he intended to stipulate that he was a felon on February 17, 2004, the date of the charged crime. The prosecutor advised that by doing so, [appellant] also [would] prevent [the jury] from seeing the nature of [his] prior. Appellant was agreeable and admitted the allegation.

In the defense case, appellant testified but was not questioned about his prior conviction. Subsequently, the jury was advised of the stipulation regarding appellants status as a felon.

b. Moral Turpitude Nature of Prior Conviction Waived

Any prior felony conviction that necessarily involves moral turpitude is admissible to impeach a witnesss testimony. (People v. Castro (1985) 38 Cal.3d 301, 306.) Moral turpitude is defined as a readiness to do evil. (Id. at p. 314.) We need not, and therefore do not, decide whether a felony conviction for carrying a loaded firearm ( 12031) constitutes a crime of moral turpitude.

The record unequivocally establishes that appellant waived his right to contest the nature of his prior felony conviction for violating section 12031. First and foremost, in entering into the stipulation sanitizing his prior, appellant did not reserve the right to contest the nature of his prior for the purpose of impeachment. Also, during discussion of jury instructions, defense counsel did not object that the jury could not consider the prior to impeach appellant, because it did not involve moral turpitude.[8] (People v. Marks (2003) 31 Cal.4th 197, 227 [failure to preserve challenges to admissiblity of marijuana and battery convictions for alleged lack of moral turpitude where no objection at trial].)

c. No Ineffective Assistance or Instructional Error Shown

Appellants alternative position is that his counsel was ineffective for failing to object to the instructions allowing the jury to consider his prior felony conviction for impeachment and to request a limiting instruction precluding the jury from considering his prior for such purpose. His companion contention is the trial court had a sua sponte duty to give a limiting instruction, because this falls within the rare circumstance in which the prior conviction is particularly prejudicial. We find his contentions to be unpersuasive.

The general rule is the trial court is under no duty to instruct sua sponte on the limited admissibility of evidence of past criminal conduct. (People v. Collie (1981) 30 Cal.3d 43, 64, emphasis original; accord, People v. Hernandez (2004) 33 Cal.4th 1040, 1051-1052.) The Collie court suggested [t]here may be an occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose. In such a setting, the evidence might be so obviously important to the case that sua sponte instruction would be needed to protect the defendant from his counsels inadvertence. (People v. Collie, supra, 30 Cal.3d at p. 64, emphasis original.)

These are not our facts. Neither the nature of appellants prior felony conviction nor its underlying conduct was before the jury. Rather, the jury was simply presented with the completely sanitized fact that appellant was a felon. No sua sponte instructional duty therefore arose in this situation.

We further conclude that appellant has failed to carry his burden to show his counsel was ineffective for failing to object to instruction on the impeachment use of appellants prior and to request a limiting instruction that would have foreclosed the jury from such use.

It is incumbent on appellant to demonstrate not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice. [Citation.] Prejudice occurs only if the record demonstrates a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. [Citation.] (People v. Lucero, supra, 23 Cal.4th 692, 728.) Moreover, [i]f the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. [Citation.] (People v. Kipp (1998) 18 Cal.4th 349, 367.)

The record does not reveal defense counsels motive in not objecting to the assigned instructions or seeking a limiting instruction. As a tactical matter, counsels strategy was damage control by allowing the jury to consider the mere fact that appellant was a felon rather than allowing the prosecutor to introduce evidence regarding the circumstances of his conviction, which might prove prejudicial. (See, e.g., People v. Ochoa (1998) 19 Cal.4th 353, 467 [not deficient to fail to seek an instruction when the sole basis for it would be evidence that counsel could reasonably have chosen not to introduce].)

Additionally, appellant cannot show prejudice flowing from the jurys consideration of his felon status for impeachment. Such status was already before the jury as a stipulated fact and was an element of his count 2 charge (felon in possession of a firearm).

As for the count 1 murder charge, that appellant was a felon would have been barely a blip on the jurors radar in view of uncontroverted evidence that established appellant retrieved a concealed handgun and then shot an unarmed man in the back who later died. (See, e.g., People v. Padilla (1995) 11 Cal.4th 891, 950 [not reasonably probable desired instruction would have led to a result more favorable to defendant].)

Moreover, the prosecutor did not argue appellants felon status in urging the jury to convict appellant of murder or mention the jury instructions in question. (See People v. Osband (1996) 13 Cal.4th 622, 701 [failure to request instruction that knife-use enhancement allegations had been dismissed not prejudicial where prosecutor did not argue victim was attacked or stabbed with knife and jury never asked to resolve the knife-use allegations].)

6. Supervening Medical Malpractice Defense Not Abridged

Appellant contends his constitutional right to present a defense was violated when the trial court foreclosed him from eliciting evidence that the victims death was caused by the hospitals intervening negligence. There was no error.

a. Relevant Trial Proceedings

During direct examination, Vadims Poukens, a deputy medical examiner, testified that his autopsy of Bowers revealed death was due to complications from a gunshot, which entered the victims back and traveled through the third vertebra into the right lung, causing extensive hemorrhaging. His review of hospital records reflected the gunshot wound also resulted in paraplegia, renal failure, sepsis, and pneumonia. Based on his examination of the victim, Dr. Poukens opined that the gunshot wound to the victims back was the cause of all these complications.

On cross-examination, Dr. Poukens acknowledged that he did check into the course of care and treatment the victim received until his death but testified that [I] would rather not answer questions about hospital care[,] . . . treatment, lack of treatment, adequate treatment. This is not my field of expertise. He then testified that although he reviewed medical records to get [an] idea about whats happened and what diagnosis was made in the hospital[,] he did not recall any details about the hospital care and without the records he could not render an opinion regarding whether Bowers had or had not received proper treatment until he died.

When asked if he were familiar with Martin Luther King Hospital, Dr. Poukens responded, vaguely. The prosecutor objected on the grounds of relevancy and speculation to defense counsels inquiry about whether Dr. Poukens was aware of certain patient care problems at that hospital. The trial court ruled. Objection will be sustained.

Defense counsel elicited Dr. Poukens admission that he had no evidence of whether or not there was an additional cause of death, namely failure of proper care that [Bowers] received at [the] hospital that contributed to [his] death[.] He also acknowledged that [i]n general, the only way to resolve this issue would be for him to review the records and analyze the course of treatment Bowers received during his hospital stay.[9]

During redirect examination, Dr. Poukens testified that he would have noted any inconsistency in treatment provided for a gunshot wound, and he made no such notations in this case.

On cross-examination, Bowerss mother testified that Bowers had complained to her about the treatment he received in the hospital where he stayed from February 17 until his death on March 8, 2004. She recalled being advised about a plan to transport her son to Rancho Dominguez for rehabilitation if he were to recover. When asked what the doctors had told her, the trial court sustained the prosecutors hearsay objection. At sidebar, the court explained that although what the doctor told the mother was hearsay, the defense could call a doctor to testify.

During the defense case, Steele testified that the victim had complained to her about his treatment and that she complained on his behalf to the hospital.

In closing argument, defense counsel urged the jury to find appellant not guilty, because you cant convict somebody of murdering someone when there are [sic] who knows what happened. He argued that the victim had survived 21 days after the shooting and that two days after being shot, there was a discussion about sending him to rehabilitation, but something happened that caused the victim to worsen and die. After commenting that it was like a big coincidence that the medical records turned up missing, defense counsel asked: Are you willing to convict this guy of murder and manslaughter knowing that we cant even put a doctor on the stand to testify as to the treatment that he received and explain why he died 21 days after he was shot after they were talking about sending him to rehab?

b. Applicable Legal Principles

If a person inflicts a dangerous wound on another, it is ordinarily no defense that inadequate medical treatment contributed to the victims death. [Citations.] To be sure, when medical treatment is grossly improper, it may discharge liability for homicide if the maltreatment is the sole cause of death and hence an unforeseeable intervening cause. [Citations.][10] (People v. Roberts (1992) 2 Cal.4th 271, 312.)

c. No Improper Curtailing of Hospital Negligence Defense Shown

Appellant presented evidence from Steele and Bowers mother that Bowers had complained about his medical treatment at the hospital. Contrary to appellants claim, he was not improperly foreclosed from eliciting from Dr. Poukens evidence of negligence on the part of the hospital in the deaths of its patients. The trial court properly sustained the objection to further inquiry about Dr. Poukens familiarity with the hospitals general practices, a broad subject, because his vaguely response demonstrated a lack of foundation therefor.

Immediately after this response, defense counsel asked without objection whether Dr. Poukens had performed a number of autopsies in connection with . . . people who have died at that hospital. Dr. Poukens responded, Yes. In his reply brief, appellant argues this testimony showed that he was familiar enough with the hospital as to the issue that mattered in this case: the cause of death of people who died under the care of the hospital.

Defense counsel elected not to cross-examine Dr. Poukens regarding the causes of death in those cases. Appellant thus has forfeited any claim that he was foreclosed from eliciting evidence of negligence on the part of the hospital regarding the deaths of some of its patients. (See People v.McGee (1947) 31 Cal.2d 229, 242 [defendant unable to complain about his inability to explain mysterious discrepancy between conflict in hospital records and that of autopsy surgeon where he did not offer at the trial, nor does he suggest on appeal that he could have produced, any competent evidence as to the course of the bullet or the making of the posterior incision].)

7. Multiple Punishment Bar Inapplicable

Appellant contends the trial court erred in sentencing him for murder (count 1) and for being a felon in possession of a firearm (count 2) in violation of the multiple punishment bar of section 654. We disagree.

Section 654 prohibits multiple punishment for a single act or an indivisible course of conduct, and where the offenses are incident to one objective, the defendant may be punished only for one offense. In contrast, where multiple, independent criminal objectives are entertained, separate sentences are warranted. (See, e.g., People v. Cleaveland (2001) 87 Cal.App.4th 263, 267-268.)

Appellant did not obtain the gun solely for the purpose of killing the victim, nor did he fortuitously come upon the gun or wrestle the gun away from the victim. The uncontroverted evidence demonstrates appellant already possessed the gun prior to using it to murder the victim. He admitted to law enforcement that I keep a lot of guns. He further admitted at trial that he retrieved the gun from a concealed portion of a dresser drawer in his room and watched his mother and the victim argue some seconds before shooting the victim.

Appellant told police that he did not know that Bowers ever had physical contact with or hit his mother until after the shooting when his mother told appellant. On cross-examination, he admitted that he never got out his gun during prior arguments between them.

In any event, appellant admitted at trial that he continued to keep the gun with him after the shooting until he sold it a day or two day later.

Assuredly, appellant was not subjected to multiple punishment based on his separate sentences for murder and being a felon in possession of a firearm, which latter offense was already committed prior to the events leading up to the murder and afterwards. (See, e.g., People v. Jones (2002) 103 Cal.App.4th 1139, 1147 [defendant armed himself antecedent to and separately from the primary offense of shooting at an inhabited dwelling during a second drive-by]; People v. Hudgins (1967) 252 Cal.App.2d 174, 185 [possession of gun completed offense even if no use had been made of it]; cf. People v. Venegas (1970) 10 Cal.App.3d 814, 818-819, 821 [possession of firearm only to shoot victim and only at time victim shot].)

8. Additional Firearm Enhancements Properly Stayed

Appellant contends the trial court improperly stayed the firearm enhancements under subdvisions (b) and (c) of section 12022.53, respectively, for 10 and 20 years, and urges this court to strike them. We decline to do so. Although for the wrong reason, the trial court correctly imposed and stayed these additional enhancements. (See, e.g., People v. Vera (1997) 15 Cal.4th 269, 272 [correct decision for wrong reason not disturbed on appeal].)

The jury found true the allegations that appellant used a weapon within the meaning of subdivisions (b), (c), and (d) of section 12022.53 during the commission of the murder (count 1). In addition to a sentence of 15 years to life for the murder, the trial court imposed a consecutive 25 years to life enhancement based on the subdivision (d) finding. The court also imposed and then stayed, pursuant to section 654, the lesser 10 year and 20 year enhancements under subdivisions (b) and (c), respectively.

a. Section 654 Inappliable to Choice under Section 12022.53

A plain reading of section 12022.53 establishes that the selection of an enhancement under subdivision (b), (c), or (d) does not implicate section 654, which prohibits multiple punishment for a single act or continuous course of conduct. Rather, these provisions describe alternative, increasing harsher punishment that corresponds to the defendants higher degree of culpable conduct. The subdivision (b) enhancement (10 years) is triggered where the defendant personally uses a firearm during the commission of an enumerated felony and [t]he firearm need not be operable or loaded for the enhancement to apply. ( 12022.53, subd. (b).) In contrast, the subdivision (c) enhancement (20 years) applies where the defendant personally and intentionally discharges a firearm during the crime, and the subdivision (d) enhancement (25 years to life) applies where the defendant personally and intentionally discharges a firearm and proximately causes great bodily injury . . . or death[.] ( 12022.53, subds. (c) & (d).)

That only one enhancement under either subdivisions (b), (c), or (d) may be imposed is clear from the express language of section 12022.53: Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment. ( 12022.53, subd. (f).) By its own terms, section 12022.53 thus proscribes imposition of enhancements under subdivision (b) and (c) where the enhancement under subdivision (d), which provides the longest term of imprisonment, must be imposed. Section 654 therefore plays no role in this determination

This conclusion also is compelled by People v. Palacios (2007) 41 Cal.4th 720, in which our Supreme Court held the sentence enhancement provisions of . . . section 12022.53 are not limited by the multiple punishment prohibition of section 654.[] (Id. at p. 723, fn. omitted.) The issue before the Court was: [W]hether section 654 precludes punishment for more than one section 12022.53 enhancement when each is based on a single act committed against a single victim, although in the commission of separate crimes. (Id. at p. 726.) The Court upheld the imposition of three 25 years to life enhancements under subdivision (d) of that section which were based on a single shot fired at a single victim during the simultaneous commission of three qualifying offenses. (Id. at p. 723.) It might be argued that the holding in Palacios is limited to this factual context; however, our Supreme Court clarified: We are persuaded that, in enacting section 12022.53, the Legislature made clear that it intended to create a sentencing scheme unfettered by section 654. (Id. at pp. 727-728.)[11]

b. Staying of Lesser Section 12022.53 Enhancements Mandated

Whether the true findings under subdivisions (b) and (c) must be stricken rather than the punishment therefor stayed was addressed by Division 4 of this court in People v. Bracamonte (2003) 106 Cal.App.4th 704 (Bracamonte) (review den.) In that case, the court explained: [T]he word impose encompasses both situations where an enhancement is imposed and then executed and imposed and then stayed. However, as a practical matter, the word impose is often employed as shorthand to refer to the first situation, while the word stay often refers to the latter. (Id. at p. 711.)

The better rule is the trial court must either impose an enhancement or strike the underlying finding, and set forth its reasoning for such striking in the minutes. It is without authority simply to stay the enhancement. (See, e.g., People v. Haykel (2002) 96 Cal.App.4th 146, 151 [enhancement either imposed or stricken, not stayed]; People v. Bradley (1998) 64 Cal.App.4th 386, 390-391; People v. Jones (1992) 8 Cal.App.4th 756, 758; People v. Irvin (1991) 230 Cal.App.3d 180, 190 [failure to impose or strike enhancement unauthorized sentence subject to correction on appeal]; contra, People v. Vergara (1991) 230 Cal.App.3d 1564, 1568-1569 [permanent staying of enhancement equivalent of striking enhancement].) (Bracamonte, supra, 106 Cal.App.4th at p. 711.)

The Bracamonte court concluded: If viewed in isolation, the [above-quoted] language of section 12022.53, subdivision (f) would dictate that the trial court in this case could only impose the 25 years to life enhancement ( 12022.53, subd. (d) [intentional and personal discharge of firearm proximately causing GBI or death] ) and must strike the findings underlying the 10-year ( 12022.53, subd. (b) [personal firearm use] ) and 20-year ( 12022.53, subd. (c) [intentional and personal discharge of firearm] ) enhancements. Such construction of section 12022.53, however, would conflict with subdivision (h) of that section, which provides: Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.

To harmonize these seemingly conflicting provisions, we conclude that section 12022.53 operates to require the trial court to add the applicable enhancement for each firearm discharge and use allegation under that section found true and then to stay the execution of all such enhancements except for the one which provides the longest imprisonment term. (See, e.g., Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [The meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. . .  ], citation omitted.) (Bracamonte, supra, 106 Cal.App.4th at p. 713.)

We find the reasoning of the Bracamonte court persuasive and therefore conclude the trial court properly imposed and then stayed the lesser enhancements under subdivisions (b) and (c) of section 12022.53.[12]

9. Correction of Abstract of Judgment Warranted

Appellant contends, and respondent concedes, the abstracts of judgment should be corrected to delete the recitals that the determinate term is to be served prior to the indeterminate term. We agree.

It is, of course, important that courts correct errors and omissions in abstracts of judgment. An abstract of judgment is not the judgm