P. v. Gama

Filed 3/27/07 P. v. Gama CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

A jury convicted defendant Richard Gama of second degree murder (Pen. Code,  187, subd. (a), 189)^[1]and found that he used, and intentionally and personally discharged, a firearm in the commission of the offense ( 12022.53, subd. (d)). He was sentenced to state prison for 40 years to life, consisting of 15 years to life for the murder plus 25 years to life for the firearm enhancement.

On appeal, defendant contends his trial counsel rendered ineffective assistance by (1) failing to interview and present several witnesses in his defense, (2) failing to object to the introduction of his recorded telephone call with a detective in the prosecutions case in chief, and (3) calling a defense witness whose vulnerability to prosecution impeachment had been known in advance. We shall affirm the judgment.

FACTS

Prosecution case-in-chief

On August 12, 2004, John Bartlett worked the night shift at Lewey Gs bar in Rio Linda. He served drinks to Bart Sproles, Kenneth Ricci and the victim, Ed Bustillos (a.k.a. Big Ed). Bartlett noticed a clean cut Hispanic male at the bar who drank beer and glanced over at Big Ed. About 10:30 p.m., Bartlett shuffled the patrons out of the bar in order to close for the evening. He noticed that Big Ed and the Hispanic male, later identified as defendant, were arguing by the door of a burgundy Hummer parked next to his own vehicle in the parking lot. Bartlett heard Sproles say, Leave it alone, Ed, and then, as Bartlett closed the door of the bar, he heard two gunshots.

Cheryl Burcham stopped at the bar to have a drink and clean herself up after having been egged as she rode her bicycle. She had only been at the bar 15 to 20 minutes when it closed. Burcham later saw a confrontation in the parking lot between two men who had been in the bar. The confrontation took place next to a burgundy Hummer and another car. Burcham heard one of the men (defendant) say to the other man (Big Ed), Ill tell my son what to do. Burcham saw Big Ed turn and walk away from the Hummer and towards his motorcycle. She saw the flash of a gunshot and then saw Big Ed fall to the ground next to his motorcycle.

Kenneth Ricci went to Lewey Gs after attending the funeral of Bart Sproless father. Ricci invited his friend, Big Ed, to the bar. Later, outside the bar, Ricci saw Big Ed and defendant conversing outside of the Hummer. Ricci did not realize that they were arguing until he saw Big Ed punch defendant and then walk toward Ricci. Ricci heard someone say, Duck, and as he turned he saw defendant shooting at Big Ed.

Grant School District Police Officer Jeffrey Jacobson was about 100 yards away from Lewey Gs bar when he heard two gunshots fired. When he turned and looked, he saw a dark H2 Humvee driving away. He was at the scene within a minute, and he saw Big Ed lying on the ground. Sacramento Sheriffs Detective Edward Newton recovered from the scene two shell casings that he identified as having been fired from a .40-caliber gun.

Dr. Stephany Fiore performed an autopsy and concluded that Big Ed died from two gunshot wounds to his torso. One bullet traveled through the left side of his chest and injured his heart; the other bullet went through his lower chest area. The trajectory of the bullets showed that Big Ed was bending down or ducking when he was shot.

Detective Newton spoke with defendant by telephone. He admitted having a burgundy Hummer but he denied knowing Big Ed and denied being present at the bar on the night of the shooting.

On August 23, 2004, six telephone calls were intercepted by a wiretap on defendants phone. In one call, defendant told a person named Robert Black to tell his girlfriend to stop running her mouth or flipping her gums. In another call, made by defendant to Bart Sproles, Sproles assured defendant that the prosecution would not be able to find anyone who would take the stand and testify against him. In another conversation, defendant told Sproles that he had the address of [t]he one that has been bumping his gums.

Defense

Billy Richie^[2]testified that he was at Lewey Gs on the night of August 12, 2004. He saw Big Ed punch defendant in the eye with a closed fist. Defendant presented evidence that Big Ed was on methamphetamine at the time of his death and that methamphetamine sometimes causes aggressive behavior.

Defendant testified on his own behalf. He explained that his son was involved in a gang and that, on the night in question, Big Ed told him that his son could not get out of the gang and that his son was in Big Eds world. Defendant responded by telling Big Ed that defendant call[ed] the shots with his son, at which point Big Ed threatened him by saying, I know where you fucking live. I know where your Mom fucking lives. I know where your whole fucking family lives.

On a prior occasion, defendant had seen Big Ed severely beat a person and stomp on the persons head. On the night of the shooting, as defendant was getting into the passenger side of the Hummer, Big Ed threatened to kill him and his wife (who was in the drivers seat of the Hummer). Big Ed, who weighed 412 pounds and stood more than six feet tall, unexpectedly punched defendant so hard that he blacked out. Defendant remembered that he was falling and that he was gonna hit the ground. Defendant was scared that if he hit the ground, Big Ed would stomp him. He felt a shadow coming toward him and he pulled out a .40-caliber pistol that he had carried since he had been the victim of an attempted carjacking. He pulled the trigger.

DISCUSSION

Defendant contends his trial counsel rendered ineffective assistance in three respects: by (1) failing to interview and present several witnesses in his defense, (2) failing to object to the introduction of his recorded telephone call with Detective Newton during the prosecutions case in chief, and (3) calling Billy Richie, whose vulnerability to prosecution impeachment had been known in advance. We consider these points in turn.

I

Defendant contends his trial counsel rendered ineffective assistance by failing to call 12 witnesses who would have been helpful to his defense. We conclude any deficient performance was not prejudicial.

Background

Following the jury verdict, defendant retained new counsel for the purpose of a new trial motion. In September 2005, new counsel filed a motion claiming that trial counsel had investigated the case inadequately and had failed to produce certain evidence. New counsel also argued that trial counsel had allowed the prosecutor to misstate the law of manslaughter during summation and that, if the misstatement had drawn an objection, the jury would likely have returned a verdict of manslaughter rather than murder.

Attached to the new trial motion were statements of 12 potential witnesses, five of whom testified at the hearing on the new trial motion. The statements provided evidence that defendant always carried a gun. The statements also provided information about defendants injury from people who were with him on the night in question or who saw him shortly after Big Ed punched his face. Defendant also included the statement and resume of a forensic expert in blood spatter evidence.

Gwin, Odgers and Gama all recalled speaking to the defense attorney or investigator before trial. Sproles asserted in his statement that his attorney had advised him not to speak with anyone in light of his own pending criminal charges and consequently he had not provided a statement at an earlier time.

During the hearing on the new trial motion, the People agreed that the witnesses, if called, would testify that it was defendants habit to carry a gun. Defendant called Christy Gama, his wife, who testified that she had been present with him on the night of the murder. Gama recalled defendant speaking with Sproles about the fact that he did not want his son to be involved with a gang. Big Ed stared at them in a threatening manner and then told defendant that his son was Big Eds property. When she, defendant, and Sproles walked out of the bar, Big Ed walked out as well. Gama got into the drivers seat of their car and saw defendant trying to get into the passenger seat. Meanwhile, Big Ed was arguing with defendant and threatening him. Gama saw Big Ed throw a forceful punch to defendants face, which caused him to stumble and lose his balance. Defendant then came to the drivers side of the car and told Gama that he wanted to drive. She told him he would not drive, because he did not have a license. As defendant returned to the passenger side, Gama heard a gunshot, but she did not know who the shooter was. When defendant got into the passenger seat and Gama drove off, he was bleeding from a cut near his left eye. After Gama drove defendant to her fathers house in Rio Linda, Gama had to walk defendant into the house because he was not walking straight and was not all there. The next morning, defendant had a black and swollen eye.

Gama admitted that she, defendant, Billy Richie and Bart Sproles were all involved in a methamphetamine conspiracy and that she had suffered a conviction for the conspiracy. She also admitted that she had not sought any medical attention for the purportedly injured and incoherent defendant. She claimed that she had tried to photograph defendants injuries but he would not let her. When asked why she had not photographed him while he slept for much of the ensuing days, she claimed that photographing him while asleep would bother him. Gama also claimed that, despite defendants poor physical condition, he wanted to drive to Oroville to visit her grandparents the next morning.

Christy Gwin, the father of Christy Gama, testified that on the evening of the shooting defendant and Gama had come to his house. Gama helped defendant to walk, and she washed blood off of his face. Defendant looked weak, as if he had been beaten up. Tamara Odgers, Gwins girlfriend, testified that she recalled defendant coming over that evening and that he was bleeding on the eye.

Esther Martinez, the grandmother of Christy Gama, testified that she remembered a morning in August 2004 when defendant and Gama came to her house in Oroville. Defendant had a very swollen black eye. Defendant and Gama stayed for a couple of days. Defendant slept most of the time.

Bart Sproles, who was serving a state prison sentence for the methamphetamine conspiracy, testified that he was at Lewey Gs on the evening of the shooting. Sproles explained that even before that evening, Big Ed did not like defendant. When Sproles walked out of the bar with defendant, Big Ed was waiting for him outside and stepped between Sproles and defendant to confront defendant. As defendant tried to enter the passenger side of the Hummer, Big Ed hit him hard and defendant fell and staggered back. Sproles helped defendant up, and defendant staggered around in a daze. Then there was a commotion and Big Ed was shot.

The trial court ruled that trial counsels performance did not fall below the standard of a reasonably competent lawyer. Specifically, the court found that the evidence of defendants habit of carrying a gun would not have bolstered the credibility or the posture of the factual back drop of the case. Additionally, the court noted that evidence of the severity of the blow to defendants face had been adduced at trial, and in fact a boxer had been called by the defense as an expert witness to testify about the effect such a punch would have had. Thus the additional evidence of the blow, and the declarations describing how defendant was bloodied and dazed, would not have been material.

Analysis

[A] conviction will not be reversed based on a claim of ineffective assistance of counsel unless the defendant establishes both of the following: (1) that counsels representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsels unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing of either one of these components, the ineffective assistance claim fails. Moreover, a court need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. [Citation.] [Citation.] (Peoplev.Rodrigues (1994) 8 Cal.4th 1060, 1126, original italics.)

Defendant has not shown a reasonable probability that the omitted evidence would have yielded a more favorable result. (Peoplev.Rodrigues, supra, 8 Cal.4th at p. 1126.) As the trial court recognized, defendants defense was self-defense. He testified that he shot Big Ed because he was in fear of his life. Calling witnesses to testify that Big Eds punch had left defendant dazed or out of it might have bolstered defendants motive for the shooting, but it also would have lessened his ability to perceive and respond to a threat to his life. Because the act of shooting was undisputed, evidence that he was severely dazed and out of it would have impaired the defenses credibility. Evidence that appeared to overstate the severity of the blow (e.g., Bart Sproles claim that Big Eds punch split [defendants] whole face open) would have had a similar effect.

Nor would the defense have been aided by Christy Gamas inexplicable testimony. Gama claimed she took defendant to her fathers residence, rather than to a hospital, because it was the closest place, and she wanted to get [defendant] cleaned up. But Gamas choice of such informal treatment contradicted her claim of severe injury. So did her failure to obtain any treatment at all when defendant remained sleepy and groggy over the next couple of days. Gama justified this omission by claiming that defendant does not like to go to the doctor and wont go to the hospital at all. But that did not explain her failure to summon aid to the grandparents home. It is not reasonably probable that the evidence highlighting the severity of the blow would have yielded a result more favorable to defendant. (Peoplev.Rodrigues, supra, 8 Cal.4th at p. 1126.)

The same is true of the evidence that defendant always carried a gun or that defendants gun was in his clothing when he left the bar. The prosecutor argued that defendant was guilty of first degree murder because he premeditated while he went from the passenger side of the Hummer to the drivers side, asked Gama for his gun, and then returned to the passenger side with the gun to shoot Big Ed. The jurys verdict of second degree murder implies that it rejected the evidence of premeditation.

To warrant further reducing the crime to manslaughter, the jury would have had to find either heat of passion or unreasonable self-defense. (E.g., People v. Anderson (2002) 28 Cal.4th 767, 781.) It is not reasonably probable that the jury rejected heat of passion on the hair-splitting theory that defendant, who had not premeditated during his sojourn to the drivers side of the Hummer, nevertheless had cooled off sufficiently during that same brief interval.^[3] Nor is it reasonably probable that the jury rejected unreasonable self-defense (good-faith belief in the need for self-defense) simply because defendant traveled from the passenger side of the Hummer to the drivers side and back. Since he could have entered the Hummer on either side, and either he or Gama could have driven away, neither scenario supports a good faith belief in the need to use a gun. Thus, evidence that (contrary to Gamas proposed testimony) defendant never went to the drivers side and back to the passenger side, because he had the gun all along, would not have produced a more favorable result. (Peoplev.Rodrigues, supra, 8 Cal.4th at p. 1126.)

II

Defendant contends his trial counsel rendered ineffective assistance when he failed to object to the playing of a tape-recorded interview with Detective Newton, during which defendant denied being at the scene of the shooting. He argues that his statement was protected by the Fifth Amendment under the theory that it constitutes pre-arrest silence, and thus there was a viable argument under which his trial counsel could have successfully moved for its exclusion. We conclude any deficient performance was not prejudicial.

Background

Following the shooting, Detective Newton spoke with defendant by telephone. Defendant admitted that he had a burgundy Hummer, but he denied knowing Big Ed and denied being present at the bar on the night of the shooting. Thereafter, Newton pressed defendant for information and he responded: Well, let me consult with my attorney and ask him what I should do because I dont want to say something. . . . I think maybe I should consult an attorney before I say anything else to anybody about anything (inaudible) something because Im not going to be like the rest of them people out there that are pointing, making false accusations.

When Detective Newton asked to speak to defendant in person, he refused, stating, Nah, Im not going to talk to nobody. Im going to get a hold of my attorney because from your voice I can tell that it sounds kind of severe.

A few moments later, defendant said, Ill get a hold of you. Im going to call you from my lawyers office and you guys can come down and talk to me if you want and talk to me right there in front of him, that way I dont say nothing wrong because I didnt do nothing wrong.

Newton asked defendant where he was living. Defendant responded, I dont want to say nothing until I talk to my attorney. . . . When Newton pressed defendant for his address, he again responded that he wanted to talk to his attorney. Then when Newton asked if he could telephone defendant at the number he was then using, defendant responded that he would telephone Newton from his attorneys office.

Defendants trial counsel declined to object to admission of a tape recording of the telephone call, stating, I dont think I have any grounds to object to that based upon what was said there between [defendant] and Mr. Newton. [Defendant] obviously will be able to explain that if he takes the stand. The tape was played for the jury without further objection.

On cross-examination, the prosecutor repeatedly asked defendant why he had not told Detective Newton that he had acted in self-defense. Defendant admitted that he had lied to Newton, and explained that it was because he did not trust the system.

In summation, the prosecutor argued that defendant in his testimony had come up with some new version, a version that hes never told anybody until yesterday. You didnt hear it on the wire taps. Didnt hear it to Detective Newton when he asked for it. (Italics added.) Defense counsels objection to the foregoing argument was overruled.

Analysis

As a general rule, false statements by a defendant at the time of arrest are admissible to show his consciousness of guilt. (People v. Kimble (1988) 44 Cal.3d 480, 496.) Defendants statements were made over the telephone, at a time when he was not in custody, under arrest, or charged with a crime. There was no custodial interrogation, and defendants Miranda^[4]rights were not operative. (People v. Mickey (1991) 54 Cal.3d 612, 648.) The conversation was voluntary, in that defendant chose to return Detective Newtons telephone call, and defendants statements were self-serving and false. Thus, defense counsel had no basis to exclude the sting of the tape, which consisted of defendants denials of knowing Big Ed and of being at the scene, as well as his failure to claim that he acted in self-defense. To that extent, trial counsel was not ineffective.

Even if defense counsel had obtained redaction of defendants references to his attorney, on the ground that using pre-arrest silence as substantive evidence of guilt violates the Fifth Amendments privilege against self-incrimination (see Combs v. Coyle (6th Cir. 2000) 205 F.3d 269, 283, and cases cited therein), the prosecutor could have used defendants lies (which preceded his claimed silence) as evidence of his consciousness of guilt. (People v. Kimble, supra, 44 Cal.3d at p. 496; see People v. Preston (1973) 9 Cal.3d 308, 313-314 [defendants early lies do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment].) Defendant provides no authority or argument for the proposition that exclusion of the attorney references would have further required exclusion of the lies that preceded them; any such contention is forfeited. (See Peoplev.Hardy (1992) 2 Cal.4th 86, 150; Peoplev.Wharton (1991) 53 Cal.3d 522, 563.) It is not reasonably probable that redacting the attorney references would have produced a more favorable result. (Peoplev.Rodrigues, supra, 8 Cal.4th at p. 1126.) In any event, admission of defendants statements in the prosecution case-in-chief could not have been prejudicial, because defendant elected to testify and his statements would have been properly admitted for impeachment. (Jenkins v. Anderson (1980) 447 U.S. 231 [65 L.Ed.2d 86].) Defendant claims he could have declined to testify had trial counsel presented the testimony of Bart Sproles, as summarized above. (See part I, ante.) But whether defendant would have done so is speculative on this record.

III

Defendant contends his trial counsel rendered ineffective assistance by calling Billy Richie to testify, knowing that his testimony would be subject to impeachment. We disagree.

Background

On the first day of trial, defendants trial counsel made a motion to prevent the impeachment of Billy Richie with a felony conviction should he be called to testify. Counsel noted that Billy Richie had been a prosecution witness at the preliminary hearing. The prosecutor responded that he would not call Billy Richie at trial because he had objective evidence that shows [Billy Richies] view or his memory of where people were standing is wrong based on pooling of blood and things like that. We know the body was elsewhere. . . . [] . . . [] I would cross-examine him on objective evidence versus his memory. Thats my tactic.

Billy Richie testified on direct examination that defendant left the bar, went to the passenger side of his burgundy Hummer, and opened the door. Defendant argued with Big Ed all the way from the door of the bar to the Hummer. Defendant told Big Ed that he called the shots with respect to his own son. At that point, Big Ed hit defendant with a full bare handed closed fist blow that landed on defendants eye. Billy Richie confirmed that the fight happened around the Hummer. After the blow was struck, defendant stumbled a little bit, then turned around [and] ran back around the other side of the Hummer. After that, Billy Richie saw defendant running back around the Hummer and heard two shots.

Billy Richie testified that, between the striking of the blow and the firing of the first shot, Big Ed was pretty much still just standing there. Trial counsel asked, near what vehicle did this take place? Billy Richie answered, I am not sure, and then referred to a diagram he had drawn. Counsel asked, Did it take place to the left side of the Hummer? The prosecutors objection was overruled, and Billy Richie answered, Maybe the left side, front area, you know, just in all the same -- all of this same area right here is what I am saying. I dont know exactly. He believed Big Ed was nearer to the Hummer than to any other vehicle when he was shot. On cross-examination, the prosecutor showed Billy Richie photographs of the crime scene depicting a vehicle next to the Hummer and some pools of blood. After viewing the pictures, Billy Richie acknowledged that Big Ed had fallen on the passenger side of the Hummer, not the drivers side.

Later, out of the jurys presence, trial counsel moved for a mistrial on the ground that the prosecutor somehow tampered with Billy Richie as a witness. In response, the prosecutor reminded the court that it was known prior to trial that Billy Richies recollection did not match the objective facts. The motion was denied.

In his summation, trial counsel argued that the prosecutors office manipulated Billy Richie to change his testimony. In closing summation, the prosecutor responded: Now you have to ask yourself, why is the defense going to such lengths, that theyre gonna call a witness in to give a story and argue it when they know absolutely that it is false? Its completely wrong. The memory is wrong. They know based on the physical evidence, that body is on this side of the car. [] They have the pictures. They have the evidence. [] And yet they call him in and want you to believe Billy Richie, the DA made him switch stories, go over there, you have to believe his first story. [] How could anybody that looks at the evidence not switch their stories? [] He already told you he wasnt confronted with all the pictures at the preliminary hearing.

Analysis

Reviewing courts defer to counsels reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance. [Citations.] [W]e accord great deference to counsels tactical decisions [citation], and we have explained that courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight [citation]. Tactical errors are generally not deemed reversible, and counsels decisionmaking must be evaluated in the context of the available facts. [Citation.] [] In the usual case, where counsels trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsels acts or omissions. [Citations.] [Citation.] (People v. Jones (2003) 29 Cal.4th 1229, 1254.)

There was a very conceivable reason for calling Billy Richie as a witness. His testimony that Big Ed punched defendant in the eye with a closed fist as defendant was trying to get into his Hummer was very helpful to the defense, because it corroborated defendants self-defense claim and painted Big Ed as the aggressor. (People v. Jones, supra, 29 Cal.4th at p. 1254.) The prosecutors implication in his closing summation that Billy Richie was called in simply to give a false story overlooked this proper purpose for the testimony.

Defendants complaint is not so much that Billy Richie was called to testify, but that trial counsel questioned him about the location of the shooting after the prosecutor alerted counsel that he would cross-examine Billy Richie on the issue. As is usually the case, trial counsels tactics or strategic reasons for this choice do not appear on the record. (People v. Jones, supra, 29 Cal.4th at p. 1254.) But at the time of the disputed testimony, counsel could have believed that the cost to the defense in having Billy Richies admittedly uncertain recollection clarified or refuted would not be great. This is not the unusual case in which there could be no conceivable reason for counsels acts or omissions. (People v. Jones, supra, 29 Cal.4th at p. 1254.)

DISPOSITION

The judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

BLEASE , Acting P.J.

DAVIS , J.

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^[1]Hereafter, undesignated statutory references are to the Penal Code.

^[2] Billy Richie is the nephew of Kenneth Ricci. Although the two men are related, they spell their last names differently.

^[3] CALJIC No. 8.50 highlights the narrowness of this distinction by treating premeditation and heat of passion as virtual opposites: If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the Defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon preexisting reflection, and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree. (Italics added.)

^[4]Miranda v.Arizona(1966) 384 U.S. 436 [16 L.Ed.2d 694].