P. v. Garrett

















Filed 4/26/13 P. v. Garrett CA2/5

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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




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THE PEOPLE, Plaintiff and Respondent, v. RUSSELL GARRETT, Defendant and Appellant.

B240559 (Los Angeles County Super. Ct. No. BA355963)

APPEAL from
a judgment of the Superior Court of the County of Los Angeles, Monica Bachner,
Judge. Affirmed.

Matthew
Alger, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr.,
Supervising Deputy Attorney General, Daniel C. Chang, Deputy Attorney General,
for Plaintiff and Respondent.



>INTRODUCTION

Defendant and appellant Russell Garrett
(defendant) was convicted of murder.
(Pen. Code, §§ 187, subd. (a) and 189href="#_ftn1" name="_ftnref1" title="">[1]). On appeal, defendant contends that he
received ineffective assistance of counsel when his counsel acquiesced in the
trial court’s answer to a question posed by the jury. We affirm the judgment.



PROCEDURAL BACKGROUND

Following a trial, the jury found defendant
guilty of the willful, deliberate and premeditated murder in violation of
sections 187, subdivision (a) and 189.
The jury found true that in committing the offense defendant personally
and intentionally discharged a handgun causing the victim’s death within the
meaning of section 12022.53, subdivisions (c) and (d), and that the offense was
committed for the benefit of, at the direction of, and in association with a
criminal street gang with the specific intent to promote further and assist in
criminal conduct by gang members in violation of section 186.22, subdivision
(b)(1)(C).

The trial court sentenced defendant
to state prison for a term of 50 years to life, consisting of a term of 25
years to life for first degree murder, plus a consecutive term of 25 years for
the personal and intentional discharge of a firearm enhancement in violation of
section 12022.53, subdivision (d).



DISCUSSION



>A. Background
Facts

Defendant, a member of a gang,
exited a car, fired at rival gang members, and a bullet struck and killed a
bystander. The driver of the vehicle
testified that she complied with defendant’s request for her to stop the car,
defendant exited it, and the driver heard five to ten gunshots.

The weapon was found. An expert witness testified that the casings
and fragments of the bullet jackets recovered from the crime scene and the
bullet recovered from the victim’s body were all fired from that weapon.

The prosecution’s gang expert
testified that the shooting was committed for the benefit of a criminal street
gang. The person in whose house the
weapon was found said that on the day of the shooting defendant asked him to
borrow the weapon to “go put in some work,” and when defendant returned the
weapon to him defendant said he had shot at rival gang members, but missed.

The trial court instructed the jury with CALCRIM No.
521, stating, inter alia, “The defendant is guilty of first-degree
murder if the People have proved that he acted willfully, deliberately, and
with premeditation. [¶] The defendant acted willfully if
he intended to kill. [¶] The defendant acted deliberately
if he carefully weighed the considerations for and against his choice and,
knowing the consequences, decided to kill. [¶] The
defendant acted with premeditation if he decided to kill before completing the
act that caused death.”

During jury deliberations, the jury
asked the trial court, “In the instruction for First Degree Murder, what is the
meaning of the phrase ‘knowing the consequences’? Does the phrase mean that the defendant knows
the consequences of his actions for others, i.e., that others may be killed, or
that the defendant knows the consequences of his actions for himself?”

The trial court stated outside the
presence of the jury that it consulted with counsel about the jury’s question,
and that “[t]here actually is a very specific case that addresses the question
of what happens when the jury asks almost the identical question that this jury
asked. [¶] The case is People vs. Cordero, 216 Cal.App.3d 275, and in that case it
explained that no particular type of consequence is required, but there must be
reflection on a consequence. So I just
summarized it. There’s very specific
language in the case that the court has discussed with counsel, and I was going
to use the language right out of the case, except I’m going to change the word
. . . ‘slayer,’ which is the word that was used in the case, and use the word
the ‘defendant,’ because they’re asking about the defendant. And, also, I’m going to take out ‘he or
she.’ In this case I think I can just
use the word ‘he.’ [¶] Does everyone agree?” Defendant’s counsel and the prosecutor
responded “Yes.”

The trial court proposed further
modifications to the response, and read the proposed language to defendant’s
counsel and the prosecutor. The trial
court again asked counsel if they had objections, and they responded that they
did not.

The trial court had the bailiff
provide the jury with the following answer to its question, consistent with the
response the trial court read to counsel: “When a defendant chooses killing
over another course of action, the results occasioned by that course of action
can be innumerable. The defendant need
not have in mind all or any particular type of consequence, he may reflect on
several consequences, but it is not a requirement that there be
reflection about more than one consequence. A finding of deliberation may be based upon
any one consequence.” The trial
court had previously advised counsel that the underscored words in the answer
to the jury’s question were words that were italicized in People v. Cordero (1989) 216 Cal.App.3d 275.



B. Analysis

“To prevail on an ineffective
assistance of counsel claim, a defendant must show that the conduct of his
trial counsel about which he complains fell below the standard of
reasonableness and that he was prejudiced by that conduct. [Citations.]
Also, despite a claim of ineffective assistance, if ‘the record does not show the reason for
counsel’s challenged actions or omissions, the conviction must be affirmed
unless there could be no satisfactory explanation. [Citation.]’
[Citation.]” (>People v. Espiritu (2011) 199
Cal.App.4th 718, 725-726.) >

Here, it is
not below the standard of care for defendant’s counsel not to object to the
trial court’s answer to the jury’s question.
The trial court based its response on People v. Cordero, supra,
216 Cal.App.3d 275, 280. In that case,
the jury was instructed with CALJIC No. 8.20, stating in part: “‘The word “deliberate” means formed or arrived at or
determined upon as a result of careful thought and weighing of considerations
for and against the proposed course of action.
. . . [¶] To constitute a deliberate and premeditated
killing, the slayer must weigh and consider the question of killing and the
reasons for and against such a choice and, having in mind the consequences,
[he] [she] decides to and does kill.’”href="#_ftn2" name="_ftnref2" title="">[2] (Id.
at p. 280.) During deliberations, the
jury asked the following question: “‘In
deciding upon a verdict of first degree murder, part of the definition
includes “. . . having in
mind the consequences . . .” what exactly does consequences
mean? I.e., consequences: of the act relating to victim, resulting in
death or consequences: relating to
defendant personally (i.e., he would face punishment by law if he killed
victim)?’ (Sic).” (Ibid.)

On appeal,
the defendant in People v. Cordero, >supra, 216 Cal.App.3d 275 argued that
the trial court erred in denying his request for an instruction clarifying the
nature of the deliberation required for first degree murder. (Id.
at pp. 279-280.) The court concluded
that the jury should have been told to consider whether the defendant
contemplated the consequences of his act—either to himself or to the victim. (Id.
at p. 284.) The court explained, “[The
defendant] contends, and the Attorney General agrees, the ‘consequences’ to be
considered for the element of deliberation in murder may include those that
affect the perpetrator. A first degree
murder conviction is proper although the defendant weighed and considered the
consequences only to himself or herself.
For example, a felon in a stolen car who kills a police officer during a
routine traffic stop does so to avoid apprehension. [Citations.]
Conversely, convictions have been upheld where the defendant gave no
thought to personal consequences.
[Citations.] [¶] In most instances, however, the
‘consequences’ considered cannot be categorized so easily. Homicides occur in diverse factual settings
and the thought processes invoked by assailants are varied; in many instances
an assailant will contemplate consequences to both the victim and to his or her own future. In other cases, the deliberation will simply
involve consequences to a third party or even an idea or strongly held
principle (e.g., politically or religiously motivated
assassinations). [¶] . . . [¶]
When a slayer chooses killing over another course of action, the results
occasioned by that course of action can be innumerable. The slayer need not have in mind all or any
particular type of consequence; he or she may reflect on several consequences,
but it is not a requirement that
there be reflection about more than one
consequence. A finding of
deliberation may be based on any one
consequence.” (Id. at pp. 280-281, fn. omitted.)

The trial
court here instructed the jury using similar language concerning knowing, or
having in mind, the consequences of a defendant’s decision to kill with which
the jury in People v. Cordero, >supra, 216 Cal.App.3d 275 was instructed. And, the trial court here based its response
to the jury’s question on that case. The
trial court properly responded to the jury’s question.

Defendant
contends that his counsel should have objected to the trial court’s response to
the jury’s question because the jury’s question, in part, asked in a
parenthetical whether the phrase “knowing the consequences” means that
defendant knew “that others may be killed,” and that is functionally equivalent
to express malice aforethought set forth in CALCRIM 520href="#_ftn3" name="_ftnref3" title="">[3] defined as “unlawfully intend[ing] to
kill,” or implied malice aforethought defined in part as defendant
deliberately act[ing] with conscious disregard for human life.” Defendant argues therefore that “the trial
court’s answer to the jury’s question did not sufficiently distinguish between
the malice aforethought required for murder and the deliberation required for a
murder that is of the first degree. The
trial court’s answer that ‘a finding of deliberation may be based on any one
consequence would have led the jury to believe that malice aforethought would
suffice for deliberation.”

The
performance of defendant’s counsel was not inadequate because the trial court’s
answer to the jury’s question would not have led the jury reasonably to believe
that malice aforethought is sufficient to establish the deliberation required
for murder of the first degree. The jury
had been instructed with CALCRIM 520, regarding murder generally, and 521
regarding first degree murder. The
jury’s question specifically referenced “the instruction for First Degree
Murder,” CALCRIM 521, not any other jury instruction. The jury could not reasonably believe, based
on the trial court’s response to its question, that malice aforethought is
sufficient to establish the deliberation required for murder of the first
degree because the phrase “malice aforethought” is not contained in CALCRIM 521
defining first degree murder. That
phrase is contained in CALCRIM 520 that defines murder generally and requires
that if the jury decides that defendant committed murder it “must then decide
whether it is murder in the first or second degree.” CALCRIM 520 provides that to constitute
murder the defendant must have acted with “a state of mind called malice
aforethought.”

The jury’s
question concerned “the meaning of the phrase ‘knowing the consequences’” of a
defendant’s decision to kill, and not the difference between first degree
murder and murder generally. In
addition, defendant’s act of killing with a “malice aforethought” state of mind
cannot reasonably be construed to be one of the “consequences” of that
killing. The court in >People v. Cordero, supra, 216 Cal.App.3d 275 explained, “The ‘consequences’
contemplated in CALJIC No. 8.20 are those flowing from the act of
killing . . . . Nowhere
does the law require [that a defendant’s] reflection [required for first degree
murder] specifically to concern the consequences to the killer, the victim, or
any other particular thing. The killer
need only reflect on some consequence
of the act about to be committed.” (>Id. at p. 282.)

In addition, as noted above, for
there to be ineffective assistance of counsel, the record must show the reason
for the challenged actions or omissions of defendant’s counsel, unless there
could be no satisfactory explanation. (>People v. Espiritu, supra, 199 Cal.App.4th at pp. 725-726.) The record does not show that there is no
satisfactory explanation for his counsel’s failure to object the trial court’s
response to the jury’s question. There
was no reasonable basis upon which to object.
The trial court’s response
was proper and the jury reasonably would not have been misled.

The record also does not reflect
the reason defendant’s counsel failed to object to the trial court’s response
to the question posed by the jury.
Defendant refers to a declaration of his counsel contained in his
petition for writ of habeas corpus, case number B245488, filed on December 6,
2012, that purportedly states why she did not object to the trial court’s
response to the jury’s question. On
January 22, 2013, we denied defendant’s request to consolidate that petition
with this appeal, and the petition will be considered separately from this
appeal. We do not consider defendant
counsel’s declaration contained in his petition. “‘A fundamental principle of appellate
practice is that an appellant ‘“must affirmatively show error by an adequate
record. . . . Error is
never presumed. . . . “A judgment or order of the lower court
is presumed correct.”’”’” (>Bianco v. California Highway Patrol (1994)
24 Cal.App.4th 1113, 1125-1126.)

We reject defendant’s contention
that he received ineffective assistance of counsel. The trial court based its response the jury’s
question on People v. Cordero, >supra, 216 Cal.App.3d 275, its answer
would not have led the jury reasonably to believe that malice aforethought is
sufficient to establish the deliberation required for murder of the first
degree, the record does not reflect the reason defendant’s counsel failed to
object to the trial court’s response to the question posed by the jury, and
defendant has failed to show that there could be no satisfactory explanation
for his counsel’s failure to object. If
there is additional material outside the record in this case related to
ineffective assistance of counsel, it will be considered in connection with the
habeas corpus petition.

Even
assuming defendant received ineffective assistance of counsel when his counsel
acquiesced in the trial court’s answer to a question posed by the jury because
the jury was lead to believe that malice aforethought was sufficient for
deliberation, defendant did not show that he was prejudiced. To establish a claim for ineffective
assistance of counsel, defendant “‘“must . . . show
prejudice flowing from counsel’s performance or lack thereof. [Citations.]
Prejudice is shown when there is a ‘reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’”’ [Citations.]”
(In re Thomas (2006) 37
Cal.4th 1249, 1256.)

Regardless of defendant’s failure to
object to the trial court’s answer to the jury’s question, the jury could
reasonably infer that defendant deliberated by weighing the considerations for
and against his choice, including the consequences of his actions on others or
himself, and knowing the consequences, decided to kill. The driver
of the vehicle testified that while driving defendant requested that she stop her
car. The driver complied, at which point
defendant exited the car and the driver then heard five to ten gunshots. The person in whose house the weapon was
found said that on the day of the shooting defendant asked him to borrow the
gun to “go put in some work.” Later,
defendant told him that defendant had shot at rival gang members, but missed.





DISPOSITION

The judgment
is affirmed.

NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS.





MOSK,
J.





We concur:







ARMSTRONG, Acting P. J.





O’NEILL, J. href="#_ftn4" name="_ftnref4" title="">*