P. v. Hall
Filed 10/2/13
P. v. Hall CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 TWO
THE
PEOPLE,
Plaintiff and Respondent,
v.
DEMAGEO
HALL,
Defendant and Appellant.
B237349
(Los Angeles County
Super. Ct. No. YA077726)
APPEAL from a judgment of the Superior Court of
County. Steven R. Van
Sicklen, Judge. Affirmed as modified.
Law Offices of Allen G. Weinberg and Allen G. Weinberg, 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,
Assistant Attorney General, Scott A. Taryle, Russell A. Lehman, and Mark Weber,
Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
and appellant Demageo Hall (defendant) challenges his murder and attempted
murder convictions, asserting instructional error and prosecutorial
misconduct. He also contends that the
trial court erroneously described his sentence on the attempted murder, and
that he is entitled to seven more days of presentence custody credit. We find no error in the instructions and no
that defendant has not shown he is entitled to additional custody credit. We affirm the judgment as modified.
BACKGROUND
Procedural history
Defendant
was charged in count 1 with the murder of Dante Nolan (Nolan) in violation of
Penal Code section 187, subdivision (a).
attempted willful, deliberate, premeditated murder of Gregory Davis (Davis)
in violation of sections 664, subdivision (a), and 187, subdivision (a). It was further alleged as to both counts that
defendant personally used a firearm within the meaning of section 12022.53,
subdivision (b); that he personally and intentionally discharged a firearm,
causing great bodily injury and death within the meaning of section 12022.53,
subdivisions (c) and (d); and pursuant to section 186.22, subdivision (b), that
the offenses were committed for the benefit of, at the direction of, or in
association with a criminal street gang with the specific intent to promote,
further, or assist in criminal conduct by gang members.
The jury
found defendant guilty of both counts as charged and found true the special
allegations. On November 17, 2011, the trial court sentenced
defendant on count 1 to a term of 25 years to life in prison, plus a
consecutive 25 years to life due to the firearm enhancement. As to count 2, defendant was sentenced to a
consecutive term of 15 years to life in prison, plus a consecutive 25 years to
life for the firearm enhancement. The
court imposed mandatory fines and fees and awarded defendant 587 actual days of
presentence custody credit. Defendant
filed a timely notice of appeal from
the judgment.
Prosecution evidence
Davis
and Nolan were shot sometime between midnight
and 1:00 a.m. on February 28, 2009, as they left a party on 107th
Street near Normandie Avenue. The area just west of Normandie
Avenue was territory claimed by the Underground
Crip gang. The area east of Normandie
Avenue was claimed by the Hoover Criminals gang,
also known as the Hoover gang or
the Hoovers. Hoover
gang members did not get along with the Underground Crips, whom they called by
the derogatory term “Ugly Girls†or “U.G.’s†for short. Defendant was a member of a subset or clique
of the Hoover gang.
Davis
testified he and Nolan had been invited to the party on 107th
Street by his nephew. They did not stay long as the attendees were
in their 20’s, much younger than Davis and Nolan. Davis
was not a gang member, was not from the neighborhood of the party, and did not
know there was a gang rivalry in the area.
As Davis was in the street about to get into his car on the driver’s
side, and Nolan was standing on the sidewalk waiting to get in on the passenger
side Davis saw a “Black kid†across the street, about 38 to 40 feet away. The kid, whom Davis
identified in court as defendant, looked at them and then fired a gun in their
direction. Davis
had an unobstructed view of defendant and the street was brightly lit by
streetlights. When detectives
interviewed Davis in October 2009,
he was able to select defendant’s photograph from a photographic lineup and
identify him as the shooter. Davis
also identified defendant at the preliminary hearing.
Davis
was shot three times in the abdomen before he and Nolan turned and ran back in
the direction of the party house. Davis
took cover under a truck parked in the driveway of the house while Nolan tried
to climb the fence. As Davis
ran, he was struck by five more bullets in his back, wrist, and thumb. As he hid under the truck with one foot
protruding, defendant approached and shot Davis
again in his foot.
Nolan
was struck by three bullets. One of the
bullets passed through his liver and heart, killing him within minutes. Davis
underwent surgery and remained hospitalized for five weeks. At the time of trial, Davis remained in
physical therapy, still suffered from a bulging disc caused by a bullet strike
near his spine, and attended a pain management class.
Los
Angeles County Sheriff’s Department Homicide Detective Richard Ramirez
investigated the shooting. The case
remained unsolved for several months because of an inability to obtain much
information from Davis due to his
medical condition. Detective Ramirez
arranged to have the case profiled on the television program “L.A.’s
Most Wanted†in early October 2009.
Nolan’s mother, sister, and uncle appeared on the show and appealed to
the public for information. A photograph
of Nolan was displayed during the broadcast.
The photograph showed Nolan in braids, the hairstyle he wore at the time
of his death.
Not long
thereafter, Sergeant Mark Marbach contacted Detective Ramirez with information
received from a paid “confidential reliable informant†(CRI), Hebert Zamora
(Zamora).
Detective Ramirez was able to put together the six-pack photographic lineup from
which Davis selected defendant’s photograph.
Zamora
had been an 18th Street gang member since the age of 13 years and was known as
“Midget.†He later moved to the
neighborhood that included the area claimed by the 11 Deuce Hoover subset of
the Hoover gang. Zamora testified he was
able to obtain information about Hoover gang members because he associated with
some of them and his mother-in-law had once associated with the Hoover gang. Zamora knew defendant as a Hoover gang member
whose moniker was “Tiny Snaps.†In
October 2009, Zamora was driving around with defendant, “Bam Bam,†and “Tiny
Box,†two members of the 107 Hoovers, another subset of the Hoover gang. Defendant pointed out a house on 107th Street
near Normandie Avenue and said there had been a party there awhile back;
defendant told Zamora that when he saw two “Ugly Girls†walking out of the
house, “we had to shoot ‘em or whatever.â€
Defendant said that once the two men were outside the house, he said,
“Fuck Ugly Girls,†and started shooting.
Defendant
told Zamora he was with another “homeboy†who acted as a lookout at the time,
but defendant did not give a name. The
homeboy waited at the corner watching for the police while defendant shot the
two men. Defendant then ran through an
alley, disposed of the gun, and walked back to the crime scene to watch the
police taping the area. Zamora testified
it was a normal practice of gang members to go back to the scene to determine
whether the victim had died. It was also
normal for gang members to brag about committing such crimes as shootings, drug
sales, and walk-up murders, because they served to enhance the reputation of
the perpetrator within gang, and to intimidate neighborhood residents and rival
gang members. Such crimes were known as
“putting in work†for the gang. Zamora
testified that a gang member would not brag falsely because other gang members
would investigate and impose a “strike†on the member who claimed to have
committed someone else’s crime.
Sometime
later defendant complained to Zamora that the victim’s sister or mother had
made “a big deal out of the shooting†and she had to be stopped. The next day Zamora contacted Sergeant
Marbach. Defendant was arrested in early
October 2009 for a gang injunction violation while he was in the company of
Kevin Adams and another man. Later that
month, while defendant was in custody, Detective Ramirez arranged to have
defendant placed near CRI Cleveland Ross (Ross), another Hoover gang member who
was also in custody. Just prior to
placing defendant in the informant’s cell, Detective Ramirez and his partner
interviewed defendant and informed him he was suspected of shooting Davis and
Nolan. Defendant’s interview was
recorded and played for the jury.
Defendant’s nearly five-hour conversation with Ross was also recorded
and portions of it were played for the jury.
Before
being placed near Ross, defendant gave his name, age, address and other
information to a deputy sheriff; he told the deputy that he was called “Slimâ€
and associated with “One Twelve Hoover.â€
When speaking to Ross, defendant said, “They called me off to
homicide. I don’t know -- Little Kevin .
. . snitched on us.†Twice more in the
conversation, defendant guessed that Kevin or “they†had snitched on him. Later, defendant sang, “I love Hoover†and
“Hoover loves me.†He also said, “The
detectives fucked up. They didn’t
fingerprint me.â€
In April
2010, Sergeant Marbach told Detective Ramirez about another incarcerated
informant, a gang member known as “Kill Kill,†who had agreed to cooperate in
exchange for leniency in his case.
name="_ftnref3" title="">[3] Detective Ramirez briefed Kill Kill on some
of the facts of the shooting: that it
had occurred in February 2009 on 107th Street as two men, one wearing braids,
walked out of a party. In order to stimulate
a conversation with the informant, Detective Ramirez told defendant that he had
been identified as a suspect in the shooting.
The detective then had defendant placed in the same cell as Kill Kill.
A
recording of defendant’s conversation with Kill Kill was played for the
jury. At the beginning of the
conversation, defendant told Kill Kill he was “Baby Snap†and “from 112 Street
Hoover.†Defendant thought his “homiesâ€
might snitch on him and said, “I know that nigger from UG that died. . . . His mama know my auntie.†Later, when Kill Kill asked, “You sure didn’t
nobody see you right?†defendant said, “I don’t know, man. I do my shit in -- I don’t never -- do you
feel me? I’m a type of foot type nigger,
you know.†This prompted Kill Kill to
suggest he was a “JOB,†to which defendant replied, “Do you feel me?†When Kill Kill suggested, “Look, one of the
niggers had braids, huh?†defendant confirmed, “Yeah.â€
Gang
expert Detective White explained that “JOB†meant “jump out boy†and was a term
used for gang members who had been involved in several shootings, whether by
jumping from a car or shooting on foot.
It was his opinion that defendant was a member of the 11-Deuce Hoovers
criminal street gang, based upon defendant’s admission to Kill Kill, his
documented contacts with law enforcement, and defendant’s gang-related
tattoos. Detective White also testified
regarding gang culture, giving his opinion that the Hoover Criminals gang and
its sets were criminal street gangs, whose members’ primary activities included
murder, attempted murder, assault, narcotics sales, weapons violations,
robbery, and graffiti-related vandalism.
He presented certified records of several Hoover gang members convicted
of such crimes. Given hypothetical facts
based upon the evidence in this case, Detective White opined that the shooting
of the victims in this case was committed for the benefit of the Hoover
Criminals gang.
Defense evidence
The
defense recalled Detective Ramirez, who testified that during an interview
Zamora said that defendant had been seated in the back seat when they discussed
the shooting. At trial, Detective
Ramirez testified that Zamora said he had been in the front passenger seat.
Iris
Garcia (Garcia) testified she lived in a second floor apartment on 107th Street
and was awake when the shooting took place.
She heard gunshots, looked into the street, saw a dark blue car with the
front and rear windows open on the driver’s side, and saw gunfire flashes
emanating from the windows. She thought
the car was a Mercedes Benz.
name="_ftnref4" title="">[4] After she saw a young man fall, the blue car
left toward Normandie Avenue. Garcia
gave this information to a deputy sheriff on the scene that night and spoke to
Detective Ramirez by telephone in March 2010.
Although there was a tree between her apartment and the location of the
shooting, Garcia denied that it blocked her view. She explained that some branches had been
removed from the tree.
Deputy
Roberto Reyes took Garcia’s initial report.
He testified Garcia told him she heard a gunshot, looked out her window,
saw someone, and then she heard and saw four or five more shots coming from a
newer model dark blue Mercedes with tinted windows. She told him she saw the driver and a front
passenger, both Black males, and after the gunfire stopped, the car sped away
eastbound.
Defendant’s
cousins Myiesha Hall (Hall) and Latrice Wilson (Wilson) testified that in
February 2009, they lived in the same apartment complex in San Bernardino, and
that defendant lived with Hall during all or part of February until after the
first of March. Both cousins testified
that on February 28, 2009, during the time that defendant was staying with
Hall, Wilson gave a “smoke out†party that lasted from 8:00 p.m. until about
2:00 a.m. The two women remembered the
date because Hall kept a calendar of events and wrote “smoke out†on that
date. Hall testified that she,
defendant, Wilson, Renee Hall, Tricia Lewis, and David Atkins attended the
party.
Hall was
“100 percent certain†that defendant came to stay with her two weeks before the
end of February and she remembered he left at the beginning of March, on the
day of a memorial for her young cousin who had died in 2008. Hall’s ex-boyfriend, Gregory Haynes, drove
defendant from Los Angeles. Hall
acknowledged that she told the defense investigator in February 2011, that the
memorial had taken place in Carson on March 23, 2009. Hall denied knowing or telling the
investigator that defendant was known as Tiny Snaps or Baby Snaps, or saying, “Let’s just leave that part out†when
the investigator asked how many years defendant had used the name. Hall admitted she was acquainted with Tiny
Box and Bam Bam, both members of the 107th Street Hoover Crips.
Wilson
also testified that defendant came to stay with Hall about two weeks before the
smoke out party and left during the first week of March. Wilson claimed she did not know that
defendant was a gang member, and did not learn that he had been accused of
murder until the defense investigator told her on February 8, 2011.
enforcement because she gave her information to the defense investigator and
there was nothing more she could do.
John
Doe, the informant known as Kill Kill, testified he did not know Sergeant
Marbach or Detective Ramirez, never worked as an informant, and had no
information about this case. He claimed
to have little memory of his conversation with defendant and denied knowing it
had been recorded.
Ross
also denied being an informant in this case.
He admitted he was a member of the 107th Hoover gang, but denied knowing
defendant in 2009. Ross remembered that
while he was in jail, homicide detectives interviewed him and showed him an
obituary photograph. The detectives
suggested that Ross had murdered the man in the picture, and then placed Ross
in handcuffs next to defendant. Ross
denied trying to elicit information from defendant or knowing anything about a
murder on 107th Street on February 28, 2009.
Although he remembered he and defendant had a conversation, he could not
remember what they discussed, and did not know the conversation was recorded.
Rebuttal
Robert
Gil (Gil), the defense investigator who interviewed Hall and Wilson on February
8, 2011, testified that when he telephoned them a week before the interview,
both women were aware that defendant had been charged with murder. Hall said that defendant came to stay with
her toward the end of January or beginning of February 2009, and remained until
the family memorial in Carson on March 23, 2009. Hall said she knew Midget and that defendant
associated with him. She acknowledged
that defendant was known as Baby Snaps in the past, but when the investigator
asked how long he was known by that name, she said, “Let’s just leave that part
out.†Wilson said defendant arrived in
February, stayed one month, and attended both the birthday party for Lavonte
Mecan and the smoke out. She named five
guests in addition to defendant and Hall.
Gil
interviewed Garcia in Spanish in February 2011.
Garcia said that she saw the gunfire flashes from a dark blue Mercedes,
but also said she saw the letters “BMW†on the trunk as the car drove
away. Garcia could not see into the car
because of the tinted window and she was unable to see how many people were in
the car, or what they looked like.
Sheriff’s
Sergeant Dana Ellison identified defendant in court, and testified about an
encounter with defendant in March 2009.
Defendant was in the company of three others and gave his name as
Jayveon Crumby and his gang affiliation as 5-Deuce Hoover. He also gave a false birth date, height, and
weight. Detective Ramirez presented two
booking photographs of defendant. The
2009 record named Jayveon Crumby, did not bear a fingerprint, and recorded
defendant’s height as five feet nine inches.
Defendant’s true name, a fingerprint, and his correct height of six feet
appeared in the 2010 record.
Detective
Ramirez testified that he had never heard of Hall and Wilson until they were
first identified as witnesses for the defense in September 2011, shortly before
trial. When he interviewed them on
September 16, 2011, Hall claimed that defendant had stayed with her during
January and February 2009, and they attended the smoke out party together,
along with about 12 other people. Hall
denied that her boyfriend Greg attended the party and claimed she could not
recall Greg’s last name. Wilson told
Detective Ramirez that Hall and her boyfriend Greg arrived at the party
together and that defendant arrived alone.
She could not remember what time they arrived.
Detective
Ramirez also testified he spoke to Garcia by telephone on March 6, 2010. She told him she saw a blue Lexus drive
rapidly away from the location after the shooting with two African-Americans in
the car, who she could not see clearly enough to identify. Shortly before trial Detective Ramirez took
photographs of the crime scene from Garcia’s window, including the tree which
was in the same full and healthy condition as it appeared in aerial photographs
taken of the crime scene a few days after the shooting.
DISCUSSION
I. CALCRIM No. 372
Defendant
contends that the trial court erred in giving CALCRIM No. 372 over defense
counsel’s objection. CALCRIM No. 372 as
given reads:
“If the defendant fled
immediately after the crime was committed, that conduct may show that he was
aware of his guilt. If you conclude that
the defendant fled, it is up to you to decide the meaning and importance of
that conduct. However, evidence that the
defendant fled cannot prove guilt by itself.â€
Section
1127c requires a trial court give a flight instruction when there is evidence
of defendant’s flight. Defendant
admitted to Zamora that he ran from the scene through an alley after shooting
the victims. Nevertheless, defendant
argues that a flight instruction should not be given in cases where the defense
presents evidence of misidentification or when the defendant’s identification
is a contested issue. To support his
contention, defendant relies on “broad dictum†in People v. Anjell (1979) 100 Cal.App.3d 189, 199-201 (
and its progeny were overruled by the California Supreme Court in
943, footnote 13 (Mason). (See also, People v. Pensinger (1991) 52 Cal.3d 1210, 1245;
It is established that even when identity is contested, “it is proper
for the trial court to instruct on flight if ‘there is evidence identifying the
person who fled as the defendant, and if such evidence “is relied upon as
tending to show guilt†. . . .’
[Citation.]†(
1245.) The jury’s need to “‘know that it
is entitled to infer consciousness of guilt from flight and that flight, alone,
is not sufficient to establish guilt . . . does not change just because
identity is also an issue.’†(
Here,
the prosecution presented substantial evidence of defendant’s identity as the
shooter. Davis identified defendant in a
photographic lineup, at the preliminary hearing, and at trial. Confidential informant Zamora testified that
defendant bragged about the crime, showed him where it happened, indicated
there had been a lookout, and said he had run through the alley to dispose of
the gun before returning to watch the police process the crime scene. When told he was going to be charged with
murder, defendant told his cellmate that Kevin must have snitched on him. A flight instruction was thus proper and
required. (Jones, supra, 53 Cal.3d at pp. 1144-1145.)
Defendant
contends that the California Supreme Court’s analysis is unpersuasive and
should be rejected in favor of Anjell’s
dictum, because the instruction required the jury to assume that he was the perpetrator. We have no authority to do as defendant
asks. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.) Moreover, defendant’s contention
is without merit. A reasonable juror
following the instruction could not logically find that defendant fled, without
first finding that it was the defendant who fled. (Mason,
supra, 52 Cal.3d at p. 943.)
Defendant
also contends that the instruction impermissibly allowed the jury to infer from
his flight that he had committed the offense.
Similar claims have been rejected by our high court, which has made
clear that such an instruction does not create a mandatory presumption or
require the jury to draw inferences.
(See People v. Loker (2008) 44
Cal.4th 691, 706; People v. Mendoza
(2000) 24 Cal.4th 130, 180-181.)
Finally defendant argues that allowing the jury to infer
guilt from flight improperly undercut his alibi defense -- that he was with his
cousins in San Bernardino on February 28, 2009.
It was the ample evidence of defendant’s identity as the shooter, not
defendant’s flight that undercut his alibi.
The instruction did not require, but merely permitted an inference that
flight from the crime scene by the person identified as defendant demonstrated
an awareness or consciousness of guilt.
We conclude the instruction was correct and properly given.
II. Improper argument
It is defendant’s position that the following argument by
the prosecutor was improper and violated defendant’s right to due process: “Mr. Nolan and Mr. Davis were two people who
were not part of that world. They were
there for a party. But because of the
battlefield that gang members have made in our cities and our neighborhoods,
Mr. Nolan lost his life and Mr. Davis almost lost his life. That is because of this battlefield that --
[defense objection overruled] -- because of this battlefield that these gang
members have made of our cities and our neighborhoods. Mr. Davis, when he decided to be truthful and
cooperate with the police, and tell the truth every time he was asked to do so,
took a step towards taking back the streets from the gang members.â€
After
this statement, the trial court immediately overruled another defense
objection, finding the argument “goes to motiveâ€; the prosecutor then concluded
her opening summation.
Respondent argues defendant has forfeited the issue by
not stating the ground of his objections in the trial court or requesting an
admonishment. (See People v. Lopez (2013) 56 Cal.4th 1028, 1073.) There is no forfeiture however, where a
request would have been futile or the court immediately overruled the
objection, giving defendant no opportunity to request an admonition. (See People
v. Hill (1998) 17 Cal.4th 800, 820-821.)
Defendant contends this rule applied to preserve the issue. Regardless, we find no misconduct.
A
prosecutor’s improper remark does not violate the federal constitution unless
it is so egregious that it infects the trial with such unfairness as to make
the conviction a denial of due process.
(People v. Hill (1998) 17
Cal.4th 800, 819; see also Darden v.
Wainwright (1986) 477 U.S. 168, 181.)
Otherwise, misconduct violates state law only if the prosecutor has used
deceptive or reprehensible methods to attempt to persuade either the court or
the jury. (Hill, supra, at p. 819.)
Defendant claims the remarks were intended to prey on
jurors’ fear of gangs and to exploit their fear by encouraging a guilty verdict
in order to protect the community. An
argument that is calculated to excite prejudice or passion is improper, and
“‘[a] prosecutor may not urge jurors to convict a criminal defendant in order
to protect community values, preserve civil order, or deter future
lawbreaking.’†(People v. Redd (2010) 48 Cal.4th 691, 743, fn. 25, quoting
F.2d 1434, 1441-1442.)
An
occasional colorful metaphor easily understood as such is not misconduct. (See
People v. Cole (2004) 33 Cal.4th 1158, 1202-1203 [torture by burning
compared to Spanish Inquisition].)
Further, is not reasonably probable that the jurors construed “taking
back the streets†as an exhortation to ignore the evidence and the court’s
instructions. The prosecutor made clear
she was not asking that of the jurors.
Immediately after the trial court overruled defendant’s second objection
to this statement, the prosecutor said:
“Mr. Davis did his part as a citizen of our community. And it’s now your turn to do yours. And your duty is to objectively and
rationally look at each piece of evidence. And it’s also to follow the law as it’s been given to you, regardless of how you feel
about the law.†(Italics added.)
Moreover,
a single comment of this sort is not misconduct unless it formed the basis of
the prosecutor’s argument, considered as a whole, and resulted in
prejudice. (See People v. Wash (1993) 6 Cal.4th 215, 262.) Defendant objected to this one remark only,
which came after unobjectionable argument over more than 30 pages of reporter’s
transcript. Following the defense
summation, the prosecutor argued nearly half that long without a defense
objection. Similar isolated comments
have been found not to amount to misconduct.
(See, e.g., Id. at pp. 261-262 [“‘make a
statement’â€]; People v. Lang (1989)
49 Cal.3d 991, 1041 [“your opportunity†to “have a voice in your communityâ€];
Cal.App.4th 496, 511-512 [“your verdicts . . . can restore order†and “restore
justice to that streetâ€]; People v.
Escarcega (1969) 273 Cal.App.2d 853, 862-863 [“make an example of
defendant†and reverse society’s permissive trend].)
The prosecutor’s
remarks in this case were no worse than others cited and we find no
misconduct. Assuming however, the
argument amounted to misconduct, it was harmless. Defendant contends the applicable standard of
review is that of Chapman v. California (1967)
386 U.S. 18, 24 (Chapman), under
which federal constitutional error requires reversal unless it was harmless
beyond a reasonable doubt. Not all
improper remarks result in a denial of due process, and “it ‘is not enough that
the prosecutors’ remarks were undesirable or even universally condemned.’ [Citation.]â€
(Darden v. Wainwright, supra,
477 U.S. at pp. 181-182.) A single
improper comment in a lengthy argument does not render a trial fundamentally
unfair under the federal constitution, which would require a
under the standard of People v. Watson
(1956) 46 Cal.2d 818, 836 (Watson). (People
v. Bordelon (2008) 162 Cal.App.4th 1311, 1323; see People v. Pensinger, supra, 52 Cal.3d at p. 1250.) Under the Watson
standard, prosecutorial misconduct is harmless unless there is a reasonable
probability that the error affected the outcome. (Bordelon,
supra, at p. 1324.)
As the
comment was brief, made at the close of the initial argument, and easily
recognizable and discounted as hyperbole, it is unlikely to have affected the
outcome. (See People v. Sandoval (1992) 4 Cal.4th 155, 184; People v. Poggi (1988) 45 Cal.3d 306, 340.) Further, the trial court instructed the
jurors not to let bias, sympathy, or public opinion influence their decision,
and said: “You must follow the law as I
explain it to you, even if you disagree with it. If you believe that the attorneys’ comments
on the law conflict with my instructions, you must follow my
instructions.†The court also told the
jury: “Nothing that the attorneys say is
evidence. In their opening statements
and closing arguments, the attorneys discuss the case, but their remarks are
not evidence. . . . Only the witnesses’
answers are evidence.†Because there was
a single arguably improper comment, such instructions were sufficient to
attenuate any prejudice. (See
733; People v. Hughey (1987) 194
Cal.App.3d 1383, 1396.) We conclude that
a more favorable result for defendant would not have been reasonably probable
here in the absence of the prosecutor’s comment, thus any error in overruling
defendant’s objections was harmless.
III. Ambiguous sentence
Defendant contends the trial court erroneously stated his
prison sentence on count 2 as 15 years to life plus 25 years, for a total of 40
years to life, rather than as a life term with a 15-year minimum parole
eligibility period as required by section 186.22, subdivision (b)(5), plus 25
years for the firearm enhancement.
name="_ftnref7" title="">[7] He claims that the sentence must be restated.
A
sentence under section 186.22, subdivision (b)(5), is not unauthorized simply
because the trial court used the shorthand, “15 years to lifeâ€; or because the
court refers to the total term as “40 years to life†when also imposing a
25-year firearm enhancement. (
1217, 1228-1229; see People v. Montes
(2003) 31 Cal.4th 350, 361, fn. 14 [“The question of whether such a
characterization is appropriate is not before us and we express no opinion on
the matterâ€].)
Here,
the trial court stated: “As to count 2,
the attempted murder count, the court is going to impose a total of 25 years to
life calculated as follows: the
attempted murder along with the gang allegation is a 15 years to life sentence. An additional 25 years is added to that
pursuant to the 12022.53(d) allegation, as to that count. So as to count 2, it’s a total of 40 years to
life.†It appears the court’s initial
statement that the term would be 25 years to life was most likely a
misstatement which the court corrected to 15 years to life but failed to do so
expressly. Nevertheless, as respondent
agrees with defendant, and since the possibility exists that the court meant to
impose an enhancement under section 186.22, subdivision (b)(1)(C), we modify
the judgment to eliminate any ambiguity.
It also
appears the court’s reference to the gang allegation and its failure to clarify
its mistake or mention the 15-year minimum parole eligibility period led the
clerk to state erroneously in the minutes that the sentence of 15 years to life
was imposed “as enhanced by the 186.22(b)(1)(C) Penal Code allegation.†The abstract of judgment sets out the
sentence on count 2 as 15 years to life, but because it makes no mention of
section 186.22, subdivision (b)(5), or a minimum parole eligibility period, it
is ambiguous. The minutes and the
abstract of judgment should be corrected accordingly.
Presentence custody credit
Defendant claims he is entitled to six additional days
of presentence custody credit. Defendant
was given 587 days, the number of actual days in custody as represented by
defense counsel at the time of sentencing.
Now defendant claims he was arrested April 1, 2010, and was in custody
until sentencing on November 17, 2011, a total of 596 days. Respondent contends defendant is entitled to
only one additional day because he was arrested initially due to a gang
injunction violation and the murder complaint was not filed until April 9,
2010. We find no support in the record
for either contention.
Defendant
contends that the pre-conviction probation report (prepared in October 2010)
shows that he was arrested in this case on April 1, 2010, and that the report
does not indicate that he was in custody for any other reason at that time. Defendant is mistaken. The probation report does in fact state an
arrest date of April 1, 2010, on pages 2 and 10. However, on page 5, the report states, “The
defendant was later arrested while in custody in Los Angeles County Jail on an
unrelated matter.â€
Presentence
custody “credit shall be given only where the custody to be credited is
attributable to proceedings related to the same conduct for which the defendant
has been convicted.†(§ 2900.5, subd.
(b).) Whenever the possibility exists
that duplicate credit might be given, the defendant has the burden to establish
that his custody related to the same conduct for which he has been
convicted. (People v. Bruner (1995) 9 Cal.4th 1178, 1193, 1194) A showing of strict causation is
required. (Id. at p. 1180.) Thus, the
defendant must show “he could have been free during any period of his
presentence custody but for the same conduct that led to the instant conviction
and sentence.†(Id. at p. 1195.) Defendant
is not entitled to credit for time which is wholly unattributable to the case
in which he was convicted, even when the unrelated case is dismissed, resulting
in no credit. (See People v. Huff (1990) 223 Cal.App.3d 1100, 1105.)
Respondent
refers to discussions during a pretrial hearing regarding when defendant’s
right to counsel attached. Detective
Ramirez testified he presented the case to the district attorney for filing on
April 7, 2010. Both counsel stipulated the
prosecutor signed the complaint containing the instant charges on April 7, 2010,
and that the complaint bears a file stamp of April 9, 2010, the day counsel was
appointed. It was on April 7, 2010, that
Detective Ramirez informed defendant that he was a suspect in this case,
informed him of his Miranda rights,
same cell as Kill Kill. Later, defense
counsel represented his review of the Sheriff’s Department website and his
conversation with defendant indicated there was a hold relating to this case
placed on defendant at the time of his arrest for the injunction violation, and
that bail was set at $3,000,000. The
prosecutor represented to the court that defendant had been arrested on April
1, 2010, for a misdemeanor violation of section 166, subdivision (a)(4). At defense counsel’s request, the court later
reviewed the misdemeanor file, and found no hold or bail relating to this
case. Thus, the earliest defendant has
shown he was not free to go on the instant charges was April 7, 2010, when
Detective Ramirez presented the case to the district attorney and the complaint
was signed.
Nevertheless,
nothing in evidence shows a disposition for the misdemeanor charge; the record
thus does not indicate whether defendant was given credit in that case for the
time in custody prior to the filing of the complaint in this case. Defendant has thus failed to meet his burden
to demonstrate that any time prior to April 10, 2010, was wholly attributable
to the current charges. As defense
counsel’s concession at sentencing of 587 days has not been shown to be
erroneous, we conclude that defendant is not entitled to additional credit.
DISPOSITON
Defendant’s sentence as to count 2 is modified to impose
a term of life in prison with a 15-year minimum parole eligibility period
pursuant to section 186.22, subdivision (b)(5), plus a consecutive firearm
enhancement of 25 years to life pursuant to section 12022.53, subdivision
(d). The superior court is directed to
correct its minutes to reflect the modified sentence and to delete that the
sentence was “enhanced by the 186.22(b)(1)(C) Penal Code allegation.†The court is further directed to issue an
amended abstract of judgment and forward a copy to the
Rehabilitation. As so modified, and
in all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________,
J.
CHAVEZ
We concur:
___________________________, P. J.
BOREN
___________________________, J.*
FERNS
________________________________________________________________________
* Judge of the Los Angeles Superior
Court, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
further statutory references are to the Penal Code, unless otherwise indicated.
the reporter’s transcript contains multiple spellings of Zamora’s first name,
Zamora himself spelled it “Hebert†prior to his testimony. For several years Zamora had provided
Sergeant Marbach with information that proved reliable. He also worked as a paid informant for
several federal agencies. Prior to the
preliminary hearing, Zamora received a telephone call from a Hoover gang member
who told him that “they†knew that he had been working as an informant and
would catch him and “smoke†him.
Sergeant Marbach arranged to have Zamora and his family relocated out of
state.
