Filed 1/29/18 P. v. Thyne CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER CHARLES THYNE, Defendant and Appellant.

H043897 (Santa Cruz County Super. Ct. No. 16CR01158)

Defendant Christopher Charles Thyne stabbed Miguel Marquez several times one night outside a drug store. A jury found defendant guilty of attempted murder (Pen. Code, §§ 664, 187), and found true the allegations that he personally used a deadly weapon (Pen. Code, § 12022, subd. (b)(1)) and personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)). Defendant’s appellate arguments all relate to a single question the prosecutor asked during the direct examination of a police detective: “Does [‘chiva’ (a Spanish word for snitch)] come up a lot in gang cases?” Defendant contends that his trial counsel was ineffective for not moving to strike the question or to have the jury admonished, and that the trial court erred by denying his mistrial and new trial motions. For the reasons stated here, we will affirm the judgment.

I. Trial Court Proceedings

Defendant was charged with attempted premeditated murder (Pen. Code, §§ 664, 187), including special allegations that he personally used a deadly weapon (Pen. Code, § 12022, subd. (b)(1)) and personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)). (Unspecified statutory references are to the Penal Code.) The complaint also alleged one prior serious felony conviction (§ 667, subd. (a)(1)) and one prior strike conviction (§ 667, subds. (b)–(i)). The complaint did not include gang-related charges or enhancements.

A. Trial Testimony

It was undisputed that defendant stabbed Miguel Marquez in the torso several times outside a drug store late one night in October 2015. Defendant admitted as much during his trial testimony. But the prosecution and defense presented competing theories, with the prosecutor arguing the stabbing was premeditated and the defense arguing that defendant acted in self-defense.

1. Prosecution Case

a. Percipient Witness Elise Johnson

Elise Johnson testified that she drove with Miguel Marquez and another man to a drug store after midnight. Marquez and Johnson gathered merchandise and approached the register. Marquez had won a prepaid debit card in a dart game earlier that night, and he tried to use it to pay for the merchandise. Marquez was told by the store clerk that the prepaid card was actually worthless. Defendant and a woman he was with approached Marquez and Johnson at the register, and defendant asked Marquez: “ ‘Can we go outside? Can I talk to you?’ ” The two walked outside while everyone else remained inside. A short time later, Johnson heard someone say “ ‘Ah.’ ” Johnson went outside and saw Marquez holding his stomach saying, “ ‘He got me. He got me.’ ” Johnson saw defendant walking toward his truck. She did not see anyone in the parking lot other than people who had been in the drug store before the stabbing. Johnson walked to defendant’s truck and gave him what she described as a “ ‘[w]hat’s up’ gesture.” Defendant told Johnson “ ‘I’ll talk to you later,’ ” and drove away. Security video showing the interior of the drug store and a portion of the parking lot but not the scene of the stabbing was admitted into evidence and played during trial to allow certain witnesses to describe what was occurring.

b. Victim Miguel Marquez

Marquez was reluctant to testify. He acknowledged at trial having previously stated during an interview that he did not want to testify, and that he did not want to be a “snitch.” He testified that defendant approached him at the drug store register and asked to talk to him. Marquez remembered that he and defendant went outside together, but testified that he could not recall anything between when he went outside and when he woke up later at the hospital. Upon further questioning, Marquez stated that he remembered being “cold-cocked” by someone, but he did not know who did it. Before excusing Marquez, the trial court allowed the prosecutor to read him two questions from the jury in a form agreed to by the parties: “ ‘Why don’t you want to be labeled as a snitch?’ ”; and “ ‘What does a snitch mean to you?’ ” Marquez responded: “Because, you know, what’s kept in the streets stays in the streets. You know, I’m straight up.”

c. Detective Noe Rocha

Noe Rocha testified as a Watsonville Police Department detective. When asked about his duties, Rocha described being a member of the Santa Cruz County Gang Task Force. Rocha interviewed Marquez the night of the stabbing at a trauma center hospital. He described Marquez as not very cooperative. Marquez told Rocha that someone had punched and stabbed him when he walked outside the drug store earlier that night. Marquez said that he had seen the assailant in town before but did not know his name. Marquez told Rocha he did not want to give the detective information because he did not want to be labeled “a chiva,” which Rocha explained means “goat” in Spanish. Rocha explained based on his training and experience that the term “signifies a snitch, or another word that they use is a rat, somebody that tells on somebody else.” Rocha testified that he was very familiar with the word “chiva.” The prosecutor then asked: “Does it come up a lot in gang cases?” Rocha responded, “t does.”

Defense counsel objected outside the presence of the jury regarding the prosecutor’s reference to gang cases. Defense counsel moved for a mistrial, but did not move to strike the question or seek a jury admonition. Counsel argued he did not “want to highlight it again by instructing the [jurors] that what they prejudicially heard, they should try and ignore a little harder.” The trial court denied the mistrial motion, and honored defense counsel’s request not to admonish the jury. After verdict, defense counsel moved for a new trial on the same grounds and the motion was denied.

d. Testimony Regarding Documentary Evidence

A doctor testified about stabilizing Marquez’s injuries before transferring him to a trauma center. Marquez sustained “several stab wounds to the left side of his chest and the left arm.” An x-ray of Marquez’s chest revealed blood in his lung, which was potentially fatal. The parties stipulated that the officer who arrested defendant four days after the stabbing saw no signs that defendant had been injured. A baseball cap was found in the drug store parking lot. An expert in DNA testing and analysis testified that there was a strong likelihood that a blood spot on the cap’s bill came from Marquez. A DNA swab from the inside of the cap indicated a moderate likelihood of a match to defendant’s DNA profile.

2. Defense Case

a. Drug Store Employee

A drug store employee testified that Marquez seemed “not happy” to learn that the prepaid card had less than a dollar on it. The employee heard Marquez tell a man standing next to him wearing a baseball cap, “ ‘Let me talk to you,’ ” and then the two of them walked outside. The employee could not identify the man in the baseball cap at trial. The employee acknowledged that his recollection of the evening was imperfect after being impeached with the security video about the order of certain events. But the employee stated he was fairly certain that Marquez was the one who asked the other man to go outside.

b. Defendant

Defendant admitted that he stabbed Marquez multiple times, that the baseball cap found in the parking lot was his, and that he was the person in the security video. But defendant testified that he acted in self-defense. He said Marquez asked him, “ ‘Can I talk to you outside?’ ” After defendant followed Marquez outside, Marquez turned to him and asked, “are you Michelle’s fucking brother?” Defendant acknowledged that he was. Marquez pulled a knife out of his pocket and said, “ ‘Well, check this out.’ ” Defendant acknowledged on cross-examination that the knife was pointed down when Marquez held it by his side, and that Marquez never pointed or swung it at defendant. Defendant responded by punching Marquez in the face. The punch caused Marquez to drop the knife, which defendant picked up. Marquez pulled defendant toward him, and defendant started stabbing him. While defendant stabbed Marquez, Marquez clubbed him in the back of the head with his fist. Defendant continued stabbing Marquez until he stopped clubbing him. Defendant acknowledged that he did not sustain any injuries during the altercation that lasted about a minute.

B. Verdict and Sentencing

The jury found defendant guilty of attempted murder, but found not true the allegation that defendant acted willfully, deliberately, and with premeditation. The jury found true the allegations that he personally used a deadly weapon, and that he personally inflicted great bodily injury. Defendant waived jury on the prior strike and prior serious felony allegations, which he admitted. The trial court granted defendant’s motion to strike his prior strike conviction ([i]People v. Superior Court (Romero) (1996) 13 Cal.4th 497) and sentenced him to 16 years in state prison. The 16-year sentence consists of a middle term of seven years for attempted murder (§ 664, subd. (a)); three years for inflicting great bodily injury (§ 12022.7, subd. (a)); one year for using a deadly weapon (§ 12022, subd. (b)(1)); and five years for the prior serious felony conviction (§ 667, subd. (a)(1)). (We note the trial court’s oral pronouncement of sentence unambiguously states that it chose “seven years midterm” as the sentence for attempted murder, but the abstract of judgment erroneously lists the sentence for attempted murder as a middle term of nine years. We will order that the abstract of judgment be modified to accurately reflect the sentence imposed.)

II. Discussion

A. Ineffective Assistance of Counsel

Defendant argues his trial counsel provided ineffective assistance by not moving to strike the prosecutor’s question about gang cases or accepting an admonition to the jury about the question. Defendant argues the question was irrelevant, unduly prejudicial, and constituted prosecutorial misconduct.

To establish ineffectiveness of trial counsel in violation of a defendant’s right to counsel under the Sixth Amendment to the United States Constitution, a defendant must show both that counsel’s performance was deficient and that he was prejudiced by the deficiency. (People v. Ledesma (1987) 43 Cal.3d 171, 216–217 (Ledesma).) Deficient performance is rarely shown if there was a tactical reason for trial counsel’s conduct. (See People v. Cruz (1980) 26 Cal.3d 233, 255–256 (Cruz) [“except in rare cases, an appellate court should not attempt to second-guess trial counsel as to tactics”].) “n assessing a Sixth Amendment attack on trial counsel’s adequacy mounted on [i]direct appeal, competency is presumed unless the record affirmatively excludes a rational basis for the trial attorney’s choice.” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1260.) To prove prejudice, a defendant must affirmatively show a reasonable probability that, but for his trial counsel’s errors, the result would have been different. (Ledesma, at pp. 217–218.)

The fatal flaw in defendant’s ineffective assistance argument is that his trial counsel identified on the record a reasonable tactical basis for not moving to strike the question or agreeing to a jury admonition. When defense counsel declined the trial court’s offers to admonish the jury about the question, he explained he did not “want to double down on that,” did not want to ask the jury to “try and ignore [the gang reference] a little harder,” and did not want to “highlight it again.” As the People point out, courts have recognized not wanting to further highlight a particular question or answer as a valid tactical basis for not moving to strike or seeking an admonition. (Citing People v. Williams (1997) 16 Cal.4th 153, 215 [“[T]rial counsel may have decided not to object to [the prejudicial] testimony about defendant’s fear of gang retaliation because an objection would have highlighted the testimony and made it seem more significant, especially in light of the general rivalry between [two gangs] with which the jury was already familiar.”].)

Defendant argues that his trial counsel’s tactical basis was unreasonable because “counsel kn[e]w that the gang reference was prejudicial, objected strenuously at the bench, and later moved for both a mistrial and a new trial.” But we view the question as a fleeting reference to gangs which was not linked to defendant or the circumstances of the stabbing, but rather to Detective Rocha and the basis for his familiarity with the term “chiva.” And to the extent the question was prejudicial, trial counsel could have reasonably concluded that another reference to the question (via motion to strike or an admonition) would only further prejudice defendant without providing any material benefit. Defendant has not shown this to be one of the rare cases where second-guessing trial counsel is appropriate (Cruz, supra, 26 Cal.3d at pp. 255–256), as the record affirmatively discloses a reasonable tactical basis for counsel’s actions.

B. Mistrial Motion

Defendant argues the trial court’s denial of his motion for a mistrial based on the question about gang cases was error under both state law and defendant’s due process right to a fair trial.

1. No State Law Error

“A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction.” (People v. Haskett (1982) 30 Cal.3d 841, 854 (Haskett).) A mistrial motion “should only be granted when a defendant’s ‘chances of receiving a fair trial have been irreparably damaged.’ ” (People v. Valdez (2004) 32 Cal.4th 73, 128.) Because whether “a particular incident is incurably prejudicial is by its nature a speculative matter,” trial courts are “vested with considerable discretion in ruling on mistrial motions.” (Haskett, at p. 854.) We review a trial court’s denial of a mistrial motion for abuse of discretion.

Defendant argues that because there was no evidence of gang involvement in the case, the prosecutor’s question served “no purpose other than to cast suspicion on [defendant] by alerting the jury to the fact that Detective Rocha was a gang crimes investigator, and was very possibly investigating this incident for that purpose.” Citing People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran), defendant argues that because courts have recognized generally that “gang evidence is highly prejudicial and inflammatory, the motion for a mistrial should have been granted.”

Albarran was charged with attempted murder, shooting at an inhabited dwelling, and kidnapping for carjacking; all counts were alleged to have been committed for the benefit of a criminal street gang. (Albarran, supra, 149 Cal.App.4th at p. 217.) The evidence at trial suggested that the defendant and another person shot at a house where a party was taking place, fled on foot, jumped into a nearby car and forced the occupant to start driving, and then fled on foot again after that car crashed. (Id. at pp. 217–218.) Over Albarran’s objection, the trial court allowed a gang expert to testify at length about Albarran’s gang membership, the types of crimes committed by Albarran’s gang, and about how a shooting like the one at issue was consistent with gang-related shootings. (Id. at pp. 220–221.) Albarran was convicted of the charged counts and the gang enhancements. The trial court granted Albarran’s motion for new trial on the gang enhancements (finding insufficient evidence to support them), but denied the motion as to the prejudicial effect of the gang evidence on the underlying counts. (Id. at p. 222.) The Court of Appeal reversed, finding that the prosecution had been allowed to present “a panoply of incriminating gang evidence, which might have been tangentially relevant to the gang allegations, but had no bearing on the underlying charges.” (Id. at p. 227.) The court concluded that “certain gang evidence admitted was so extraordinarily prejudicial and of such little relevance that it raised the distinct potential to sway the jury to convict regardless of Albarran’s actual guilt.” (Id. at p. 228.)

The single question about gangs posed here is a far cry from the “panoply of incriminating gang evidence” that led the Albarran court to grant a new trial. (Albarran, supra, 149 Cal.App.4th at pp. 227–228.) Although relevant to explaining the basis for the detective’s understanding of the Spanish word “chiva,” we acknowledge that the prosecutor’s question was also arguably more prejudicial than probative given the lack of gang evidence or allegations. But the prosecutor did not ask Detective Rocha whether the circumstances of defendant’s case appeared to be gang-related; the question merely connected the detective’s familiarity with the word Marquez used to the detective’s work on gang cases. While a jury could infer from that question that Marquez was a gang member and also that there might have been a gang-related motive for the stabbing, the existence and effects of those inferences is speculative. The trial court could reasonably conclude that the fleeting reference to gangs in this case was too isolated and tangential to irreparably damage defendant’s chance of receiving a fair trial.

2. No Denial of Due Process Right to a Fair Trial

Defendant argues the denial of his mistrial motion deprived him of his right to due process because the gang reference rendered his trial fundamentally unfair. “Due process guarantees that a criminal defendant will be treated with ‘that fundamental fairness essential to the very concept of justice. In order to declare a denial of it we must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.’ ” (United States v. Valenzuela-Bernal (1982) 458 U.S. 858, 872; accord People v. Uribe (2011) 199 Cal.App.4th 836, 871.)

Even assuming the jury could draw no permissible inference from the question about gang cases, defendant has not demonstrated that it necessarily prevented a fair trial. As we have already discussed, the prosecutor’s reference to gang cases was isolated and minimal. No other reference to gangs was made during the entire trial. Though defendant argues that the jury necessarily “considered the gang implication” based on jurors’ questions to Marquez about why he did not want to be labeled a snitch, those jury questions were posed the day before Rocha’s testimony and neither those questions nor Marquez’s response mentioned gangs. Defendant’s argument that it is “simply common sense” that Marquez’s statement—“what’s kept in the streets stays in the streets”—would necessarily “cause a jury to believe this [was] a gang case” is speculative and unpersuasive. And the jury found not true the allegation that defendant committed the attempted murder willfully, deliberately, and with premeditation, suggesting the jury was not unfairly influenced. (See United States v. Young (1985) 470 U.S. 1, 18, fn. 15 [acquittal of more serious charge “reinforces our conclusion that the prosecutor’s remarks did not undermine the jury’s ability to view the evidence independently and fairly”].)

C. New Trial Motion

Defendant contends the trial court erred in denying his motion for a new trial because the prosecutor’s question amounted to prosecutorial misconduct under both state law and the United States Constitution.

A defendant may move for a new trial “when the district attorney or other counsel prosecuting the case has been guilty of prejudicial misconduct during the trial thereof before a jury.” (§ 1181, subd. (5).) A prosecutor commits prejudicial misconduct under state law if he or she “ ‘uses deceptive or reprehensible methods to persuade the jury.’ ” (People v. Friend (2009) 47 Cal.4th 1, 29.) Under the federal Constitution, a prosecutor’s behavior deprives a defendant of his or her rights “ ‘when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” ’ ” (People v. Gamache (2010) 48 Cal.4th 347, 370.) “ ‘ “The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.” ’ ” (People v. Carter (2005) 36 Cal.4th 1114, 1210.) Defendant argues we should review this issue de novo because he was “denied a fair trial within the meaning of the Sixth and Fourteenth Amendments to the United States Constitution.” (Citing Albarran, supra, 149 Cal.App.4th at p. 224, fn. 7.) We need not resolve which standard applies because we find no error under either standard of review.

As the prosecutor asked only one question that mentioned gangs and never made another reference to gangs, his conduct by definition was not a pattern of conduct and could therefore not infect the trial with such unfairness as to meet the federal standard for prosecutorial misconduct. Defendant also has not demonstrated that the question amounted to the use of deceptive or reprehensible methods of persuading the jury. The question occurred toward the beginning of the prosecution’s direct examination of the detective. The detective had already testified (without prompting from the prosecutor) that he was a member of the Santa Cruz County Gang Task Force, and that he had been working as a gang detective for the preceding two years. The prosecutor reasonably asked whether the detective’s familiarity with the word “chiva” came from the work he had been doing most recently as a detective. Given the lack of gang evidence in the case, the question was susceptible to an Evidence Code section 352 objection as substantially more prejudicial than probative. But that does not compel a conclusion that the question was the result of the prosecutor’s use of deceptive or reprehensible methods. The trial court did not err in denying the motion for a new trial.

III. Disposition

The clerk of the Superior Court is directed to prepare and submit to the Department of Corrections and Rehabilitation a new abstract of judgment to accurately list defendant’s 16-year sentence as follows: a middle term of seven years for attempted murder (§ 664, subd. (a)); three years for inflicting great bodily injury (§ 12022.7, subd. (a)); one year for using a deadly weapon (§ 12022, subd. (b)); and five years for the prior serious felony conviction (§ 667, subd. (a)(1)). As so modified, the judgment is affirmed.