P. v. Moreno

Filed 11/2/07 P. v. Moreno CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Arthur H. Jean, Jr., Judge. Affirmed with directions.

MOTION to correct the record. Granted.

Robert K. Steinberg for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, John R. Gorey and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________

INTRODUCTION

A jury found defendant and appellant guilty of attempted murder and of possession of a controlled substance. The jury also found true gun and gang allegations. On appeal, defendant contends (1) that his constitutional rights were violated when the trial court allowed the information to be amended at trial to state that the attempted murder was committed willfully, deliberately, and with premeditation; (2) that his trial counsel provided ineffective assistance of counsel; and (3) that there is an error in his sentence. We reject each contention and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I. Evidence at the preliminary hearing.

On the evening of July 11, 2006, Carlos Aguirre was driving his car. Yoroslavia and Claudia Aceves were passengers. At some point, Aguirre noticed a car following them for about two blocks. Aguirre stopped his car, and the car following him also stopped. A red truck carrying two people approached his car. Both people got out of the truck. Aguirre recognized the driver; it was defendant. He had a gun in his hand. Aguirre started to open the door to identify himself to defendant, but, before he could do so, someone yelled out, Who is that? Whos tripping? Whats up, homey? Shots were then fired. Yoroslavia and Claudia heard someone ask, Where are you from? before the shots were fired. Aguirre was shot in his left shoulder. Yoroslavia said, Thats Little Aztec, a moniker for defendant.

At the preliminary hearing, Yoroslavia was not a hundred percent sure if she saw the shooter in court, but she said [t]here are similarities between the shooter and defendant.

II. Evidence at the trial.

The evidence at trial was similar to the evidence at the preliminary hearing. Carlos Aguirre repeated that he was driving his car with Yoroslavia and Claudia Aceves when he noticed a car following them. Aguirre stopped his car, and the car that had been following him also stopped. He saw a red truck belonging to defendant, with whom Aguirre had gone to school and who lived in the same neighborhood. Yoroslavia said, Thats Little Aztec, which is defendants moniker. Aguirre heard someone ask, Whos that? Wheres that one from? Shots were fired. Aguirre drove away, and two more shots were fired. Aguirre was shot in the shoulder, and his car was hit by bullets.

At trial, Aguirre refused to answer questions about whether he saw defendant shoot him, whether he saw a gun in defendants hand, and whether he saw defendant raise a gun in his direction and shoot. He said he did not want to testify against defendant. Claudia Aceves, after the shooting, was shown a photographic six-pack. She circled defendant, but she was not one hundred percent sure he was the shooter. Yoroslavia Aceves, when shown a photographic six-pack, also selected defendant because he resemble[d] the shooter.

The Peoples gang expert was Officer Mark Maldonado. He testified that East Side Wilmas (ESW) is a criminal street gang in Wilmington having approximately 550 members. ESWs primary activities include homicide, attempted homicide, narcotics sales and use, grand theft auto, robbery, and rape. Officer Maldonado has encountered defendant several times, and it is the officers opinion that defendant is a member of ESW. In fact, defendant, whose moniker is Aztec, has admitted his membership to Officer Maldonado. Recovered from defendants residence was a photograph of him throwing a gang sign. Also found at defendants home were Washington Nationals and St. Louis Cardinals baseball hats, both of which ESW members wear.

Officer Maldonado opined that the shooting was for the benefit of the ESW gang. He said, The basis [of my opinion] is that East Side Wilma[s] criminal street gang members, if they believe someone is in their neighborhood that shouldnt be, they are going to attack. They are not going to let somebody come into their neighborhood they dont know. Thats how they deal with things. They deal with violence. It is used by a lot of different gangs. [] Where are you from? There is really no right answer. Once they say where you from, they have pretty much determined for some reason that you are not from there. They are going to probably shoot first and not ask questions.

After defendant was arrested, 0.12 grams of methamphetamine was found on him.

III. The jurys verdict and sentence.

Trial was by jury. On December 4, 2006, the jury found defendant guilty of count 1 for the attempted murder of Carlos Aguirre (Pen. Code, 187, 664)^[1]and of count 4 for possession of a controlled substance (Health & Saf. Code, 11377, subd. (a)). The jury found defendant not guilty of counts 2 and 3 for the attempted murders of Yoroslavia and Claudia Aceves. As to count 1, the jury found true the allegations that the crime was willful, premeditated and deliberate ( 664, subd. (a)), that defendant personally and intentionally discharged a firearm during the commission of the offense thereby inflicting great bodily injury ( 12022.53, subd. (d)), and that the offense was committed for the benefit of, and in association with, a criminal street gang ( 186.22, subd. (b)(1)).

On January 4, 2007, defendant was sentenced to life on count 1 plus a consecutive 25 years under section 12022.53, subdivision (d), plus a consecutive 10 years for the gang allegation under section 186.22, subdivision (b)(1)(C). The trial court sentenced him to a concurrent term of two years on count 4.

DISCUSSION

I. Defendants constitutional rights were not violated by amendment of the information.

After the People and the defense rested, the People moved to amend the information to add to counts 1, 2, and 3 for attempted murder the allegation that the acts were committed willfully, deliberately and with premeditation. The trial court said they had discussed this earlier,^[2]and it had indicated that the amendment would be allowed unless the defense could show some prejudice, which the defense, at the time of that earlier discussion, had been unable to show. The court asked what was the prejudice, and defense counsel confirmed that the amendment had been discussed, but he objected because this is a surprise to me. The court said it was a matter of argument rather than evidence, and defense counsel agreed. The court therefore found no prejudice and allowed the amendment.

Defendant now contends that the amendment was prejudicial, and denied him due process under the federal constitution. Both the Sixth Amendment of the federal Constitution and the due process guarantees of the state and federal Constitutions require that a criminal defendant receive notice of the charges adequate to give a meaningful opportunity to defend against them. [Citation.] (People v. Cole (2004) 33 Cal.4th 1158, 1205.) Unless defendants substantial rights would be prejudiced, a court may permit amendment of an information at any stage of the proceedings, even as late as trial. ( 1009; People v. Edwards (1991) 54 Cal.3d 787, 827; see also People v. Villagren (1980) 106 Cal.App.3d 720, 724 [an amendment to the information may be made as late as the close of trial if no prejudice is shown].) But an indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination. ( 1009; see also People v. Superior Court (Mendella) (1983) 33 Cal.3d 754, 764 [evidence at preliminary hearing put defendant on notice of potential great bodily injury allegation].)

Whether a defendant received constitutionally adequate notice that the prosecution was relying on a particular theory of guilt entails resolution of a mixed question of law and fact that is predominantly legal; as such, it is subject to independent review. (People v. Cole, supra, 33 Cal.4th at p. 1205.) Our California Supreme Court, however, has also said that a trial court has discretion to grant or to deny a motion to amend an information, but that if defendants substantial rights are prejudiced, the motion must be denied. (People v. Birks (1998) 19 Cal.4th 108, 129.) Whether we apply a de novo standard of review or an abuse of discretion one, the result here is the same.

Here, defendants substantial rights were not prejudiced by allowing the People to amend the information to allege that the attempted murders were committed willfully, deliberately, and with premeditation. There are three basic, but not exhaustive, categories of evidence that will sustain a finding of premeditation and deliberation: (1) planning activity; (2) motive; and (3) manner of the killing. (People v. Anderson (1968) 70 Cal.2d 15, 26-27.)^[3]  Deliberation refers to careful weighing of considerations in forming a course of action; premeditation means thought over in advance. [Citations.] The process of premeditation and deliberation does not require any extended period of time. The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . . [Citations.] [Citation.] (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)

Evidence presented at the preliminary hearing put defendant on notice that he had to defend against allegations that he committed the attempted murders willfully, deliberately, and with premeditation. The victims testified that while they were driving, a car followed them for several blocks. When Aguirre stopped his car, the car following him also stopped. A truck belonging to defendant then stopped across the street. Defendant got out of the truck. The victims heard statements to the effect of Where are you from?, Who is that?, and Whos trippin? Before Aguirre could identify himself, shots were fired.

This evidence showed that the shooting was planned: Before Aguirre was shot at, he had been followed by a car driven by, it may reasonably be inferred, defendants associates. After Aguirre stopped his car, defendant got out of his truck with a loaded gun. After pausing to ask about Aguirres gang affiliation, defendant opened fire. That defendant had a loaded gun is also evidence of planning. (People v. Young (2005) 34 Cal.4th 1149, 1183.) The evidence also showed motive: Before shots were fired, someone yelled out, Where are you from? or statements to that effect. These statements show that the shooting was gang-related, for example, the shooter thought that Aguirre was from a rival gang.

This evidence was essentially no different when offered at trial. The main difference between evidence at the preliminary hearing and at trial concerned identification of the shooter. At trial, Aguirre refused to identify defendant as the shooter. Evidence concerning who was the shooter, however, was not essential to the willful, deliberate, and premeditated allegation.

Moreover, although the trial court did not grant the motion to amend the information until after the People and the defense rested, the record shows that the issue was raised before the parties rested. Therefore, the defense was on notice, before it rested, that the willful, deliberate, and premeditated nature of the attempted murders might be at issue. Indeed, when the trial court questioned defense counsel, he agreed that the amendment was more a matter of argument than of evidence.

We therefore find that defendants substantial rights were not prejudiced by the amendment to the information.

II. Defense counsel did not provide ineffective assistance of counsel.

Defendant contends that his trial counsel provided ineffective assistance because (a) he made a misstatement during argument; (b) he failed to put on character witnesses and to have defendant testify in his defense; and (c) he failed to request an instruction on assault with a deadly weapon by means likely to produce great bodily injury.

To prevail on an ineffective assistance of counsel claim, a defendant must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsels failings. [Citations.] (People v. Price (1991) 1 Cal.4th 324, 440; see also People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) There is a presumption trial counsels performance comes within the wide range of reasonably professional assistance and that counsels actions were a matter of sound trial strategy. (Strickland v. Washington (1984) 466 U.S. 668, 689-690; People v. Lewis (1990) 50 Cal.3d 262, 288.) A defendant claiming ineffective assistance of counsel must also show by a preponderance of evidence a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington, at p. 694.) If the record sheds no light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for an explanation and failed to provide one, or there could be no satisfactory explanation for counsels performance. (People v. Castillo (1997) 16 Cal.4th 1009, 1015.)

As we discuss below, each contention of ineffective assistance of counsel fails.

A. Defense counsel was not ineffective for making a misstatement during argument.

First, defendant contends that his defense counsel at trial was ineffective for making the following misstatement during argument: Now the defendant has pled no contest in this case. Thats pretty obvious. If someone comes to court and pleads guilty, he is found guilty of the offense and proceeds to sentencing. The defendant pleads not guilty, thats how we get to a trial situation. The defendant denies that he has done this. (Italics added.) The People have filed a motion to correct the record on appeal, which we grant. The court reporter who transcribed the underlying proceedings, after reviewing her stenographic notes, has confirmed that the reporters transcript contains a typographical error, and that it should read: Now the defendant has pled not guilty in this case. (Italics added.)

Based on this correction, defense counsel did not make a misstatement. Moreover, placing the alleged no contest remark in context, shows it must be a typographical error. Defense counsel was explaining that there is a trial if the defendant pleads not guilty. Since defendant denies that he has done this, he clearly pled not guilty.

B. Defense counsel was not ineffective for resting without putting on witnesses.

Defendant next contends that his defense counsel, [d]ue to the facts that the witnesses were evasive as to the identity of the shooter and were impeached by prior testimony, should have put on character witnesses and should have had defendant testify.^[4]

Here, a satisfactory explanation for trial counsels decision not to call any witnesses appears on the face of the record. Defense counsel said the defense would rest without calling any witnesses and instead would rely on the state of the evidence. The state of the evidence was that although there was evidence defendant was the shooter, there was also evidence that cast doubt on the victims identifications of defendant as the shooter. For example, Aguirre refused to identify defendant as the shooter at trial. Claudia and Yoroslavia Acevess selection of defendant from photographic six-packs were not unqualified selections. Therefore, defense counsels strategy was to attack the identifications made by the Peoples witnesses. It is unclear how calling character witness or having defendant testify would have advanced this strategy. Nor does the record show that defendant wanted to testify but that his trial counsel prevented him from doing so. We therefore cannot conclude that defendants trial counsel was ineffective.

C. Defense counsel was not ineffective for failing to request an instruction on assault with a deadly weapon by means of force likely to produce great bodily injury.

Defendants final contention relating to ineffective assistance of counsel is his defense counsel should have requested an instruction on the lesser included offense of assault with a deadly weapon with the intent to commit great bodily injury.

[A] lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. (People v. Breverman (1998) 19 Cal.4th 142, 154, fn. 5; see also People v. Reed (2006) 38 Cal.4th 1224.)^[5] The court in Reed clarified that there are two teststhe elements test and the accusatory pleading testto determine whether an uncharged offense is necessarily included in a charged offense. (Reed, at p. 1227.) Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former. (Id. at pp. 1227-1228.)

Under the statutory elements test, neither assault with a deadly weapon nor assault with a deadly weapon by means likely to produce great bodily injury are offenses necessarily included within murder, even if the murder in fact is carried out with a deadly weapon. (People v. Benjamin (1975) 52 Cal.App.3d 63, 71; see People v. Sanchez (2001) 24 Cal.4th 983, 988.) It is apparent that murder can be committed without committing an assault with a deadly weapon or by means of force likely to produce great bodily injury. For example, one could commit a murder by withholding food and drink from an invalid. Therefore, the statutory definition of murder does not necessarily include assault with a deadly weapon. (Benjamin, at p. 71; see also Sanchez, at p. 988.) Therefore, under the statutory elements test, defendant was not entitled to an instruction on assault with a deadly weapon by means likely to produce great bodily injury as a lesser included offense of attempted murder.

Next, the accusatory pleading, the information, alleged that defendant committed the attempted murders of Aguirre and of Claudia and Yoroslavia Aceves. The information also alleged, as to the attempted murder of Aguirre, gun enhancements under section 12022.53, subdivisions (b), (c), and (d), but only under subdivisions (b) and (c) as to Claudia and Yoroslavia. The gun enhancement allegations, however, can not be considered in determining lesser included offenses. (Cf. People v. Wolcott (1983) 34 Cal.3d 92, 101 [an allegation of firearm use under section 12022.5 should not be considered in determining lesser included offense].)

Under both the statutory elements test and the accusatory pleading test, assault with a deadly weapon by means likely to produce great bodily injury is not a necessarily lesser included offense of attempted murder. Therefore, defendants trial counsel could not have been ineffective for failing to request that the jury be instructed on that offense as a lesser included offense of attempted murder.

Although defendant did not in his opening brief on appeal alternatively argue that his trial counsel should have requested an instruction on assault with a deadly weapon by means likely to produce great bodily injury as a lesser related offense, he does so in his reply brief. We generally do not consider an issue raised for the first time in a reply brief. (People v. Smithey, supra, 20 Cal.4th at p. 1017, fn. 26.) Even if the issue was properly before us, we would not find defendants trial counsel ineffective.

Although a trial court must instruct on a necessarily included offense, there is no such duty to instruct on lesser related offenses. (People v. Birks (1998) 19 Cal.4th 108.) Rather, a criminal defendant has no right, absent the prosecutions agreement, to instructions on lesser offenses that are related to, but not necessarily included in, the charges actually filed. (Id. at p. 136; People v. Steele (2000) 83 Cal.App.4th 212, 217 [trial court may not instruct on lesser related offenses, absent the stipulation of both parties, or a partys failure to object to such an instruction].) A defense counsel may refuse an instruction on a lesser related offense because he or she believes it might lead to a compromise verdict. (See, e.g., People v. Le (1995) 39 Cal.App.4th 1518, 1523 [In a case where he believes the tactical benefit of an all-or-nothing choice outweighs this risk, the defendant can refrain from requesting instructions on lesser related offenses].)

Here, defense counsel could have believed that requesting an instruction on assault with a deadly weapon by means likely to produce great bodily injury might have led to a compromise verdict; he therefore may have made a deliberate choice to use an all-or-nothing tactical strategy rather than run that risk. Namely, assault with a deadly weapon is a general intent crime (People v. Williams (2001) 26 Cal.4th 779, 788), whereas attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing (People v. Lee (2003) 31 Cal.4th 613, 623). Under the facts of the case, defense counsel could have believed that the prosecution had not met its burden of proving specific intent, but that it would be harder for the defense to counter a general intent crime.

We therefore conclude that defense counsel was not ineffective for failing to request an instruction on assault with a deadly weapon by means likely to produce great bodily injury.

III. There was no sentencing error.

Defendant contends, without citation to any authority, that the 25 years he received for the gun enhancement under section 12022.53, subdivision (d), merged with the life sentence he received on count 1 for attempted murder. We disagree.

The merger doctrine was stated in People v. Ireland (1969) 70 Cal.2d 522, 538-540. Ireland held that the felony-murder rule could not be applied when the only underlying or predicate felony the defendant committed was assault, because the assault is an integral part of the homicide. To hold otherwise would relieve the prosecution in most homicide cases of the need to prove malice, as most homicide cases involve assault. [Citation.] . . . Thus, the felony of assault merged into the resulting homicide. (People v. Sanders (2003) 111 Cal.App.4th 1371, 1374; see also People v. Hansen (1994) 9 Cal.4th 300, 311.) Defendant cites no authority applying the merger doctrine in any context other than felony murder and assault and extending the merger doctrine to enhancements. (Sanders, at p. 1374.)

We therefore reject defendants contention, and we instead find that the sentence under section 12022.53, subdivision (d), did not merge with the life sentence he received on the attempted murder count.

IV. Abstract of judgment.

The trial court sentenced defendant to life on count 1 plus 25 years under section 12022.53, subdivision (d), plus an additional 10 years under section 186.22, subdivision (b)(1)(C). The People point out, however, that the abstract of judgment states that defendant was sentenced to 35 years to life plus an additional indeterminate term. The abstract of judgment must be corrected to reflect the sentence imposed. It should also be corrected to reflect defendants conviction for attempted murder and the true findings on the gang and gun allegations.

DISPOSITION

The trial court is directed to correct the abstract of judgment to reflect the sentence imposed. The abstract of judgment shall be corrected to reflect defendants conviction for attempted murder, the sentence under section 186.22, subdivision (b)(1)(C), and the sentence under section 12022.53, subdivision (d). It shall be corrected to reflect the sentence imposed, namely, defendant was sentenced to life on count 1 plus a consecutive 25 years under section 12022.53, subdivision (d), plus a consecutive 10 years under section 186.22, subdivision (b)(1)(C). The corrected abstract of judgment shall be forwarded to the Department of Corrections. In all other respects, the judgment is affirmed.

The motion to correct the record on appeal is granted.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

CROSKEY, Acting P. J.

KITCHING, J.

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^[1] All further undesignated statutory references are to the Penal Code.

^[2] The record does not contain a report of such a discussion.

^[3] Murder perpetrated by a willful, deliberate, and premeditated killing is murder in the first degree. ( 189.) Attempted murder committed willfully, deliberately, and with premeditation is punishable by imprisonment in state prison for life with the possibility of parole. ( 664, subd. (a).)

^[4] In his reply brief, defendants appellate counsel argues, for the first time, that defense counsel was also ineffective for allowing testimony that the witnesses told the officers in the hallway that the [a]ppellant was the shooter. The general rule is that points raised for the first time in the reply brief will not be considered, unless good reason is shown for the failure to present them earlier. (People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26.) Here, no reason is stated, and, moreover, there is no citation to the record to inform this court what testimony specifically is at issue. We therefore do not address the issue.

^[5] A trial court has a sua sponte duty to instruct on all lesser included offenses which find substantial support in the evidence. (People v. Breverman, supra, 19 Cal.4th at pp. 148-149, 162.)