P. v. McCray

Filed 10/25/07 P. v. McCray CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appellant Douglas Wayne McCray appeals his conviction by jury of attempted murder (Pen. Code, 664 & 187, subd. (a))^[1]and assault with a deadly weapon. ( 245, subd. (a)(1).) The jury found true allegations that appellant personally inflicted great bodily injury in the commission of both crimes ( 12022.7, subd. (a)), and that he used a deadly weapon, a knife, in the commission of the attempted murder. ( 12022, subd. (b)(1).)

The trial court sentenced appellant to 13 years in state prison for the attempted murder, imposing the 9-year upper term plus consecutive 3-year and one-year terms for the great bodily injury enhancement with the use of a deadly weapon. ( 12022.7, subd. (a) & 12022, subd. (b)(1).) The court imposed and stayed two consecutive 3-year sentences for the assault with a deadly weapon and the great bodily injury enhancement. ( 245, subd. (a)(1), 12022.7, subd. (a) & 654.)

Appellant contends that his right to confront witnesses was violated by testimony of the investigating officer that referred to witness statements, that his conviction for assault with a deadly weapon should be reversed because it is a lesser included offense of attempted murder, that he received ineffective assistance of counsel because his attorney's questions opened the door to his prior misdemeanor convictions, and that imposition of the upper term for attempted murder violated his right to a jury trial. We disagree and affirm.

Factual Background

On December 26, 2004, at about 2:30 in the afternoon George Orona was "slouched" on a bus stop bench near a 7-11 store. Orona was sleeping and intoxicated. Appellant was across the street at an Arco station with a man named Juan Bush. An eyewitness saw Bush hand appellant a knife. Appellant took the knife and crossed the street with his bicycle to the bench where Orona sat sleeping. Appellant yelled at Orona and stabbed him about five times in the torso with the knife.

Five eyewitnesses described the attack and its aftermath. They identified appellant in photo line ups, and in court. They did not see Orona do anything to provoke the attack. Orona was quiet and did not defend himself. He just sat there, did not have a weapon, and did not throw a punch or lunge at appellant.

After the stabbing, Orona got up. He crossed the street and collapsed. Appellant walked back across the street with his bike and met Bush at a bench near the Arco station. Appellant returned the knife to Bush and rode away on his bicycle. A witness followed Bush and saw Bush hide the knife under a dumpster.

About an hour after the attack, officers found appellant on an abandoned couch about half a mile away with his eyes closed. His bicycle was nearby. There was blood on appellant's pants and his bicycle, but tests disclosed that it was not the victim's. That evening, Bush led officers to the dumpster where he had hidden the knife. They recovered the knife, which had blood on it that matched Orona's. No usable prints could be recovered from the knife's textured plastic handle.

Orona testified that he had fallen asleep on the bench after becoming too intoxicated to continue drinking. He woke up while he was being stabbed. The person who stabbed him yelled, "I'm gonna kill you, mother fucker." Orona did not remember fighting with anyone before he lay down. Appellant and Orona were both homeless. To prove Orona's propensity for violence, appellant's counsel was allowed to question Orona about an unrelated pending battery charge.

Appellant testified that he did not stab anyone, but he did punch Orona with "something like a butter knife" in self-defense. Appellant testified that he first met Orona earlier that day and bought Orona beer and whiskey. When appellant ran out of money, they argued. Appellant was tired and lay down to sleep on the Arco bench. Orona slapped appellant, which appellant ignored. Orona reached into appellant's coat saying, "I want to sleep on the bench. This is my bench. What are you niggers doing around here?" Appellant pushed him away. Orona punched appellant six to eight times in the face and said, "I'm gonna kill you. Get the fuck off of the bench, this is my bench." Appellant suffered no visible injuries to his face, but he testified he was dazed. He testified that after Orona beat him, Orona walked across the street and sat down on the 7-11 bus bench. Appellant feared for his life because he had been stabbed many times before by other people. Also, he wanted to get Orona out of the way so he could sleep. Appellant took the knife from a shopping cart and followed Orona across the street, after waiting for the light to change. With knife in hand, he punched Orona about four times, yelling, "[Y]ou are not killing me, I'm fuckin' you up" or "You are not going to kill me, I'll kill you if anything." Orona was sitting down and did not have a weapon, but he was not asleep.

During appellant's direct examination, his counsel asked him whether he had ever been convicted of a violent crime. Appellant replied that he had not. Appellant had in fact twice been convicted of misdemeanor battery, a fact that the prosecution was permitted to elicit in cross-examination. Appellant's counsel had the probation report, which listed the battery convictions, but she later explained that she thought there was no violent history because the prosecutor had told the court that appellant's criminal history was non-violent. The prosecutor explained that he told the court appellant had not suffered any serious or violent felonies within the meaning of the Three Strike law.

Testimony of Detective Pinner

Appellant contends that an investigating officer's reference to witness statements violated appellant's Sixth Amendment right to confront witnesses. We disagree.

Detective Pinner testified that during his investigation he did not treat Juan Bush as a suspect. The prosecutor asked why and Pinner responded, "Based on the evidence given to me by physical and verbal evidence given by the witnesses that Mr. McCray was " Defense counsel objected to the statement as hearsay, and the court overruled the objection reasoning that the detective was offering his opinion and was not revealing the contents of the witnesses' statements. Detective Pinner continued his response by stating, "Based on a an evaluation of the case as it stood that day, we decided that Juan Bush was not a suspect. Mr. McCray was."

The trial court did not abuse its discretion when it overruled the hearsay objection. (People v. Guerra (2006) 37 Cal.4th 1067, 1113.) Pinner's reference to "verbal evidence" was not hearsay because it was offered to explain Pinner's state of mind during the investigation, not to prove the truth of the matter asserted, whatever that was. Detective Pinner did not reveal the contents of the witnesses' statements.

Appellant argues that Pinner's statement implied that witness statements implicated appellant, and that their statements were testimonial hearsay because they were gathered by law enforcement agents in anticipation of litigation. (Crawford v. Washington (2004) 541 U.S. 36.) By the time Detectvie Pinner testified, the jury had already heard from five eyewitnesses each of whom testified that they made statements to investigating officers that implicated appellant. Crawford does not apply to nonhearsay statements (id. at p. 59, fn. 9), and even if it applied here the reference to statements of testifying witnesses would not require reversal. "[W]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements." (Ibid.)

Prohibition Against Conviction of Both Greater and Lesser Included Offenses

A defendant may not be convicted of both a greater and lesser included offense. (People v. Reed (2006) 38 Cal.4th 1224, 1227.) Assault with a deadly weapon is not a lesser included offense of attempted murder. (People v. Gragg (1989) 216 Cal.App.3d 32, 41.) Appellant contends however, that where the attempted murder is enhanced by use of a deadly weapon, assault with a deadly weapon becomes a lesser included offense. We disagree. Enhancement by use of a deadly weapon is irrelevant to the multiple conviction analysis. "[E]nhancements are neither recognized nor considered in determining whether a defendant can be convicted of multiple charged crimes based on necessarily included offenses." (People v. Sloan (2007) 42 Cal.4th 110, 114.) Appellant's reliance on Apprendi v. New Jersey (2000) 530 U.S. 466 and People v. Seel (2004) 34 Cal.4th 535 is misplaced. "Apprendi . . . and Seel . . . are inapposite to the issue posed herewhether enhancement allegations may be considered in defining necessarily included offense for purposes of the multiple conviction rule." (People v. Izaguirre (2007) 42 Cal.4th 126, 133.) We consider only the statutory elements of the offenses to determine whether multiple convictions are barred. (People v. Reed, supra, 38 Cal.4th 1224, 1229.) The statutory elements of attempted murder do not include those of assault with a deadly weapon. ( 664, 187, subd. (a) & 245, subd. (a)(1).)

Ineffective Assistance of Counsel

Appellant contends that he received prejudicial ineffective assistance of counsel because his attorney's questions opened the door to his misdemeanor convictions. We reject the claim because appellant did not suffer prejudice as a result of his counsel's performance.

An appellant claiming ineffective assistance of counsel has the burden of establishing that his counsel's performance fell below professional norms, and that he was prejudiced by his counsel's performance. (Strickland v. Washington (1984) 466 U.S. 668, 687.) If the appellant makes an insufficient showing on one of these components, the reviewing court need not address both. (Id. at p. 697.)

Appellant makes an insufficient showing of prejudice. Prejudice exists when "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Strickland v. Washington, supra, 466 U.S. at p. 686.) "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.) In our case, the introduction of appellant's two misdemeanor battery convictions did not undermine the trial process. The convictions were minimized by appellant's testimony on cross-examination that "battery could be touching somebody on the hand accidentally . . . . [] . . . It's nothing like a fighting case," and the trial court's instruction that "[t]he slightest touching can be enough to commit a battery if it is done in a rude or angry way. . . . The touching does not have to cause pain or injury of any kind." Moreover, there is no reasonable possibility that the result would have been different if appellant's misdemeanor battery convictions had not been introduced, because the evidence of appellant's guilt was overwhelming. Five independent eyewitnesses testified that they saw him attack Orona, and none saw Orona make any provocative move.

Upper Term Sentence

The trial court imposed the upper term sentence for the attempted murder conviction. It identified aggravating circumstances that included numerous prior convictions of increasing seriousness. Imposition of the upper term did not violate appellant's Sixth Amendment right to a jury trial because at least one aggravating circumstance was established by appellant's criminal record. (People v. Black (2007) 41 Cal.4th 799.)

"[I]mposition of the upper term does not infringe upon the defendant's constitutional right to a jury trial so long as one legally sufficient aggravating circumstance . . . is justified based upon the defendant's record of prior convictions." (People v. Black, supra, 41 Cal.4th at p.816.) Prior adult convictions that are numerous or increasingly serious warrant imposition of the upper term. (Cal. Rules of Court, rule 4.421(b)(2).)

In our case, the trial court's conclusion that appellant's prior convictions were numerous and increasingly serious was supported by the probation report, which includes the two prior battery convictions ( 243, subd. (a)); two prior convictions for sale or furnishing of a controlled substance (Health & Saf. Code,  11355); convictions for transportation or sale of marijuana (Health & Saf. Code,  11360, subd. (a)); misdemeanor sale of hashish and possession of hashish in Jacksonville, Florida; failure to appear ( 853.7); petty theft ( 484, subd. (a)); public nuisance (former 650.5); indecent exposure ( 314, subd. (1)); felony transportation or sale of a controlled substance (Health & Saf. Code, 11352, subd. (a)); being under the influence of a controlled substance (Health & Saf. Code,  11550, subd. (a)); possession of narcotic paraphernalia (Health & Saf. Code,  11364); possession, sale or manufacture of a dangerous weapon ( 12020, subd. (a)); criminal threats ( 422); public intoxication ( 647, subd. (f)); contempt of court ( 166, subd. (a)(4); and possession of a narcotic controlled substance (Health & Saf. Code, 11350, subd. (a).) "[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant's right to a jury trial." (People v. Black, supra, 41 Cal.4th at p. 812.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Susan M. Speer, Judge

Superior Court County of Los Angeles

______________________________

Joanna McKim, 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, Victoria B. Wilson, Supervising Deputy Attorney General, Joseph P. Lee, Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.

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^[1]All statutory references are to this code unless otherwise stated.