P. v. Tyler

Filed 3/20/07 P. v. Tyler CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Gary R. Hahn, Judge. Affirmed as modified.

Randy S. Kravis for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanka, Linda C. Johnson and Lisa J. Brault, Deputy Attorneys General, for Plaintiff and Respondent.

_______________

Miron Jerome Tyler appeals from the judgment entered after a jury convicted him on one count of murder, three counts of attempted murder and one count of firearm possession by a felon. Tyler contends the trial court committed reversible error by failing sua sponte to modify CALJIC No. 8.66 to specify that Tyler must have had the specific intent to kill each victim to be convicted on all three attempted murder counts; the prosecutor committed prejudicial misconduct during closing argument; the criminal-street-gang enhancements imposed pursuant to Penal Code section 186.22, subdivision (b),[1]are unauthorized; and he should not have received consecutive sentences on the murder and attempted murder counts. We modify the judgment to strike the imposition of firearm enhancements under section 12022.53, subdivision (d), on counts 3 and 4 and to reflect the imposition of firearm enhancements under section 12022.53, subdivision (c), on those counts and, as modified, affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Charges

Tyler was charged by information with one count of murder ( 187) (count 1), three counts of attempted murder ( 187, subd. (a), 664) (counts 2, 3 and 4) and one count of firearm possession by a felon ( 12021, subd. (a)(1)) (count 5). As to the murder and attempted murder counts, the information specially alleged firearm enhancements under sections 12022.53 and 12022.55 and a criminal-street-gang enhancement under section 186.22, subdivision (b). The information also specially alleged the attempted murders were willful, deliberate and premeditated within the meaning of section 664, subdivision (a).

2. Summary of the Evidence Presented at Trial[2]

On the evening of March 28, 2004 Candy Crusoe was sitting in the front passenger seat of her friend Kempo Williamss car, which was parked on the street in territory claimed by the PJ Watts Crips gang. Williams was sitting on the hood of the car; and Talia Slone was standing in front of Williams. Trent Moody, Jr., Slones cousin, was standing near the rear of the car.

A sports utility vehicle drove up next to Williamss car; and the four men inside yelled the name Grape Street Watts Crips, a rival of the PJ Watts Crips that claimed the bordering territory. At least two of the four men then fired shots, one of the rear passengers with a pistol and the front passenger with a rifle. Moody fell to the ground and died at the scene from a gunshot wound to his back caused by a high-velocity weapon, such as a rifle. Crusoe was struck five times in the head and right shoulder. Neither Williams nor Slone was shot. It was later determined the sports utility vehicle had been rented by the girlfriend of a Grape Street member.

Within several days of the shooting, Slone saw Tyler at a market, remembered she had attended elementary school with him and recognized him as the front passenger in the sports utility vehicle. Slone called police detectives and gave them this information. She then identified Tyler in a photographic lineup as the shooter in the front passenger seat. Crusoe also identified Tyler in a photographic lineup as the shooter in the front passenger seat. At trial, however, Crusoe denied having made an identification and claimed the police detectives were mistaken. After the photographic identifications police arrested Tyler near the Jordan Downs Housing Development in Grape Street territory.

Los Angeles Police Detective Christian Mrakich testified as an expert on the Grape Street gang. According to Mrakich, the Jordan Downs Housing Development, the site of Tylers arrest, is a stronghold of the Grape Street gang. Mrakich knew Tyler and the three other suspects in the shooting to be members of the gang; and Tyler had admitted his membership to Mrakich. Tyler had several tattoos that signified his membership in the Grape Street gang. Mrakich identified murder, drive-by shootings, murder for hire, extortion, witness intimidation, manufacturing and transporting of narcotics and kidnapping as primary activities of the gang; and members of Grape Street had criminal convictions for murder, robbery and assault with a deadly weapon. The PJ Watts Crips had an active, ongoing rivalry with Grape Street; and the week prior to the shooting in this case a drive-by shooting and murder occurred just outside the Jordan Downs Housing Development and was believed to have been committed by the PJ Watts Crips. Mrakich testified yelling Grape Street prior to the shooting in this case furthered the gang by leaving no doubt as to who was responsible for the crime and causing people to fear the gang.

Tyler did not present any evidence or witnesses in defense. His trial counsel argued to the jury the People had not proved their case beyond a reasonable doubt because there was no physical evidence indicating Tyler was involved in the incident and the two eyewitness identifications of Tyler were not credible.

3. The Jurys Verdict and Sentencing

The jury found Tyler guilty on count 1 for murder, counts 2, 3 and 4 for attempted murder and count 5 for firearm possession by a felon. It found the murder to be in the first degree and the attempted murders to be willful, deliberate and premeditated. It found true as to the murder and attempted murder counts firearm enhancements under sections 12022.53 and 12022.55. It also found true the special allegation the murder and attempted murders were committed for the benefit of, at the direction of or in association with a criminal street gang within the meaning of section 186.22, subdivision (b)(1).

The trial court sentenced Tyler to an aggregate state prison term of 170 years to life: (1) 25 years to life for the murder charged in count 1, plus 25 years to life for the firearm enhancement under section 12022.53, subdivision (d); (2) a consecutive life term for the attempted murder charged in count 2, with a minimum eligible parole date of 15 years for the criminal-street-gang enhancement, plus 25 years to life for the firearm enhancement under section 12022.53, subdivision (d); (3) a consecutive life term for the attempted murder charged in count 3, with a minimum eligible parole date of 15 years for the criminal-street-gang enhancement, plus 25 years to life for a firearm enhancement under section 12022.53, subdivision (d); and (4) a consecutive life term for the attempted murder charged in count 4, with a minimum eligible parole date of 15 years for the criminal-street-gang enhancement, plus 25 years to life for a firearm enhancement under section 12022.53, subdivision (d). Pursuant to section 654, the trial court stayed the sentence on count 5 for firearm possession by a felon.

DISCUSSION

1. The Trial Court Did Not Err By Failing Sua Sponte To Modify CALJIC No. 8.66

The trial court instructed the jury under CALJIC No. 8.66 with respect to the attempted murder counts, Defendant is accused in counts 2, 3, and 4 of having committed the crime of attempted murder, a violation of Penal Code section 664 and 187. Every person who attempts to murder another human being is guilty of a violation of Penal Code section 664 and 187. Murder is the unlawful killing of a human being with malice aforethought. In order to prove attempted murder, each of the following elements must be proved: 1. A direct but ineffectual act was done by one person towards killing another human being; and 2. the person committing the act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being. In deciding whether or not such an act was done, it is necessary to distinguish between mere preparation on the one hand and the actual commencement of the doing of the criminal deed on the other. Mere preparation, which may consist of planning the killing or devising, obtaining or arranging the means for its commission, is not sufficient to constitute an attempt. However, acts of a person who intends to kill another person will constitute an attempt where those acts clearly indicate a certain, unambiguous intent to kill. These acts must be an immediate step in the present execution of the killing, the progress of which would be completed unless interrupted by some circumstances not intended in original design.

Focusing on CALJIC No. 8.66s use of the singular phrases another human being and another person, Tyler contends the trial court had a sua sponte duty to modify the instruction to expressly inform the jury it must find he had the specific intent to kill each of the attempted murder victims in order to convict him on all three attempted murder counts. According to Tyler, CALJIC No. 8.66 as given allowed the jury to convict him on all three counts of attempted murder even if it concluded he had the specific intent to kill only one of the victims.

Tylers argument lacks merit. The jury was given a separate verdict form for each attempted murder count, requiring it to make an individual determination whether Tyler had committed the crime against each alleged victim. In addition, the trial court instructed the jury under CALJIC No. 3.31 with respect to each attempted murder count that the crime of attempted murder required a union of act and the requisite specific intent and that the crime was not committed if that mental state did not exist.[3] The jury was also told under CALJIC No. 1.01 to view the instructions as a whole. Based on the separate verdict forms and the instructions given as a whole, which we presume the jury followed (People v. Sanchez (2001) 26 Cal.4th 834, 852), it is not reasonably likely the jury interpreted or applied CALJIC No. 8.66 in a manner that permitted it to convict Tyler on all three counts of attempted murder without concluding he had the specific intent to kill each of the victims. (People v. Harrison (2005) 35 Cal.4th 208, 252 [defendants argument that jury was confused by courts instruction rejected when there was no reasonable likelihood the jury was confused and misconstrued or misapplied the instruction]; People v. Osband (1996) 13 Cal.4th 622, 679 [appellate court reviews claim of ambiguity in instruction by determining whether, in light of all the instructions given, there is a reasonable likelihood that the jury construed or applied the challenged instruction[s] in an objectionable fashion].)

2. The Prosecutor Did Not Engage in Prejudicial Misconduct in Closing Argument

The applicable federal and state standards regarding prosecutorial misconduct are well established. A prosecutors . . . intemperate behavior violates the federal Constitution only 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. [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citation.] (People v. Navarette (2003) 30 Cal.4th 458, 506.)[4]

Tyler contends the prosecutor engaged in misconduct during summation by making inappropriate comments about general strategies used by defense counsel to argue the People have not proved their case against his or her client.[5] According to Tyler, the prosecutors statements inflamed the jury because they (1) amounted to testimony from the prosecutor himself; (2) involved considerations outside the evidence presented at trial; and (3) demeaned defense counsel.

Because Tyler did not object in the trial court to any of the statements about which he complains on appeal, he has forfeited his claim of prosecutorial misconduct. (People v. Samayoa (1997) 15 Cal.4th 795, 841 [As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion ‑‑ and on the same ground ‑‑ the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety].) Contrary to Tylers contention, the prosecutors remarks were not so inherently prejudicial that an objection and admonition to the jury could not have cured any harm. (See People v. Dennis (1998) 17 Cal.4th 468, 521.) Tyler, therefore, did not preserve his challenge to the judgment based on prosecutorial misconduct.

In addition, none of Tylers complaints, either viewed independently or together, constitutes a cognizable claim of prosecutorial misconduct. The focus of the prosecutors remarks was fair comment on the evidence against Tyler, in particular the two eyewitness identifications, and the anticipated argument by the defense to discredit those identifications. (People v. Thompson (1988) 45 Cal.3d 86, 113 [prosecutors remarks on anticipated defense strategy did not depart from comment on the state of the evidence or legitimate argument on how the case should be viewed].) The prosecutor did not use closing argument to attack defense counsel personally, only to challenge the defenses efforts to discredit the evidence against Tyler. (People v. Medina (1995) 11 Cal.4th 694, 759 [prosecutors comment that any experienced defense attorney can twist a little, poke a little, try to draw some speculation, try to get you to buy something not objectionable]; People v. Gionis (1995) 9 Cal.4th 1196, 1216 [prosecutors remarks pointing out that attorneys are schooled in the art of persuasion not objectionable because they did not improperly imply that defense counsel was lying]; see People v. Cummings (1993) 4 Cal.4th 1233, 1302, fn. 47 [An argument which does no more than point out that the defense is attempting to confuse the issues and urges the jury to focus on what the prosecution believes is the relevant evidence is not improper].) Indeed, defense counsel himself argued in his summation about general strategies used by the People: Now, the other thing I wanted to tell you preliminarily is that if you notice in every situation in this case in which a witness doesnt say something that the prosecution likes, they come up with a spin on it, either they are scared, they are intimidated, they are stupid, they screwed up, they forgot, innocent misrecollection, theres always a reason. The prosecutors comments in his rebuttal argument regarding the defenses attack on the Peoples witnesses were in response to defense counsels own remarks.

In any event, even if arguably improper, the prosecutors actions were not prejudicial because it is not reasonably probable Tyler would have obtained a more favorable verdict absent the alleged misconduct. (People v. Gionis, supra, 9 Cal.4th at p. 1220 [applying People v. Watson (1956) 46 Cal.2d 818, 836, standard of prejudice to claim of prosecutorial misconduct]; see also People v. Crew (2003) 31 Cal.4th 822, 839-840.) The prosecutors remarks were limited in nature and did not infect the entire trial. And, as explained, defense counsel himself discussed the general methods used by the prosecution to rehabilitate its witnesses. Moreover, the trial court instructed the jury both at the beginning of the case and before closing argument, Statements made by the attorneys during trial are not evidence. The court also instructed the jury on the factors to consider in evaluating eyewitness identifications and the believability of witnesses. It is presumed the jury followed those instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436 [alleged prosecutorial misconduct not prejudicial when trial court properly instructed on the law because jury presumed to have followed instructions]; People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8 [jury presumed to have treated prosecutors comments as words spoken by an advocate in an attempt to persuade].)[6]

3. The Sentences Imposed for the Criminal-street-gang Enhancements Are Not Unauthorized

In general a true finding on a special allegation of a criminal-street-gang enhancement under section 186.22, subdivision (b)(1), requires enhancement of the defendants sentence by a determinate term of 10 years when the underlying crime is a violent felony within the meaning of section 667.5, subdivision (c). ( 186.22, subd. (b)(1)(C).) When the underlying felony is punishable by a life term in the state prison, however, in lieu of the 10-year enhancement, the defendant shall not be paroled [on the life sentence] until a minimum of 15 calendar years have been served. ( 186.22, subd. (b)(5).)[7]

In this case, in sentencing Tyler for the attempted murders (counts 2, 3 and 4) the trial court imposed on each count a life term (based on the jurys findings the attempted murders were willful, deliberate and premeditated), with a minimum eligible parole date of 15 years for the criminal-street-gang enhancement under section 186.22, subdivision (b)(5), plus a term of 25 years to life for a firearm enhancement under section 12022.53, subdivision (d). Tyler contends imposition of the 15-year minimum eligible parole date term on each count is unauthorized because his punishment for the criminal-street-gang enhancement should have been subsumed in the term of 25 years to life for the firearm enhancement.

Tyler is mistaken. As he recognizes, Division Two of the Fourth District rejected the specific issue he raises in People v. Villegas (2001) 92 Cal.App.4th 1217, 1228-1229. There, Villegas was convicted of willful, deliberate and premeditated attempted murder with true findings on a criminal-street-gang enhancement under section 186.22, subdivision (b), and a firearm enhancement under section 12022.53, subdivision (d). (Villegas, at p. 1228.) Villegas received the same sentence as did Tyler on counts 2, 3 and 4: a life term, with a minimum eligible parole date of 15 years, plus an enhancement of 25 years to life. (Ibid.) Villegas complained on appeal, as does Tyler, the trial court treated the sentencing prescription for the gang allegation in section 186.22, subdivision (b)(5), as a sentence enhancement by improperly adding a 15-year-to-life sentence to defendants life term and [a] consecutive 25-year-to-life term for the gun use enhancement. (Villegas, at p. 1228.) The Court of Appeal disagreed, finding that, because Villegass underlying felony was punishable by a life term, his penalty for the criminal-street-gang enhancement was a minimum eligible parole date of 15 years, and that section 12022.53, subdivision (d), mandated an additional and consecutive term of imprisonment in the state prison for 25 years to life. (Villegas, at p. 1229.) Following Villegas, which we believe sets forth the correct analysis of the interplay of the various sentencing statutes, the trial court in this case properly imposed a 15-year minimum eligible parole date on each of counts 2, 3 and 4.

Tylers reliance on People v. Lopez (2005) 34 Cal.4th 1002 is unpersuasive. In Lopez the Supreme Court held a defendant convicted of first degree murder with a true finding on a criminal-street-gang enhancement is not subject to a 10-year enhancement under section 186.22, subdivision (b)(1), but rather a 15-year minimum eligible parole date under section 186.22, subdivision (b)(5). (Lopez, at p. 1007.) According to the Court, when a defendant is sentenced to a term of 25 years to life for first degree murder, his or her sentence falls within section 186.22, subdivision (b)(5)s provision for crimes punishable by imprisonment in the state prison for life and, therefore, is exempt from the 10-year enhancement in section 186.22, subdivision (b)(1): [T]he Legislature intended section 186.22(b)(5) to encompass both a straight life term as well [as] a term expressed as years to life (other than those enumerated in subdivision (b)(4)) and therefore intended to exempt those crimes from the 10-year enhancement of subdivision (b)(1)(C). [Citation.] (Lopez, at p. 1007.) As a result, imposition of the 10-year enhancement on defendants sentence was unauthorized; and the 15-year minimum eligible parole date was subsumed in the term of 25 years to life defendant received for the first degree murder. (Id. at p. 1010 [Legislature recognized 15-year minimum eligible parole date would have no effect on minimum eligible parole date for first degree murderers who already receive a term of 25 years to life]; see People v. Montes (2003) 31 Cal.4th 350, 361, fn. 14 [While newer and more powerful sentencing laws . . . have sapped the strength of section 186.22(b)(5), section 186.22(b)(5) still has vitality where the defendant is convicted of attempted murder with premeditation. In this situation, section 186.22(b)(5) raises the seven-year minimum eligible parole date (see 3046, subd. (a)) to a 15-year minimum eligible parole date].)

Lopez simply has no application to Tylers sentence on counts 2, 3 and 4.[8] Tyler did not receive a sentence of 25 years to life on the underlying offense, as did the defendant in Lopez. Instead, he received life terms, to which the trial court properly applied 15-year minimum eligible parole dates specified in section 186.22, subdivision (b)(5). (People v. Villegas, supra, 92 Cal.App.4th at pp. 1228-1229.) Those sentences for the underlying attempted murder offenses were then enhanced pursuant to section 12022.53 for Tylers firearm use. (See 12022.5, subd. (d) [requiring punishment under its provisions to be imposed additional and consecutive to defendants sentence].) Tyler offers no authority to support his claim section 186.22, subdivision (b)(5)s minimum eligible parole date is unauthorized when a defendants sentence must be enhanced in addition under section 12022.53, subdivision (d), with a term of 25 years to life. Indeed, to do so would thwart the mandate of the Legislature in both section 186.22, subdivision (b)(5), and section 12022.53, subdivision (d).

4. The Imposition of Consecutive Sentences Is Not Objectionable on Appeal

In electing to impose consecutive sentences on the murder and attempted murder counts, the trial court stated, I am going to run counts 2, 3 and 4 [for attempted murder] consecutive to count 1 [for murder] because not only did the AK 47 [rifle] empty once, it was reloaded and emptied again shooting at people. There was no reason in the world why they got shot. Ill never understand it. Tyler contends the decision to impose consecutive sentence constitutes an abuse of discretion because there is no evidence in the record to support the trial courts statement the rifle he fired was reloaded during the shooting spree.

As Tyler himself recognizes, he has forfeited his challenge to the imposition of consecutive sentences by failing to object in the trial court. (People v. Gonzalez (2003) 31 Cal.4th 745, 755-756 [failure to object to discretionary sentencing choices in trial court forfeits issue on appeal]; People v. Scott (1994) 9 Cal.4th 331, 353 [same].)

Attempting to avoid the forfeiture problem, Tyler argues his trial counsel provided ineffective assistance by failing to object in the trial court to the imposition of consecutive sentences. A defendant claiming ineffective assistance of counsel in violation of his Sixth Amendment right to counsel must show not only his or her counsels performance fell below an objective standard of reasonableness under prevailing professional norms but also it is reasonably probable, but for counsels failings, the result would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694 [104 S.Ct. 2052, 80 L.Ed.2d 674]; In re Jones (1996) 13 Cal.4th 552, 561.) The burden of sustaining a charge of inadequate or ineffective representation is upon the defendant. The proof . . . must be a demonstrable reality and not a speculative matter. [Citation.] (People v. Karis (1988) 46 Cal.3d 612, 656.)

In considering a claim of ineffective assistance of counsel, it is not necessary to determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. (In re Fields (1990) 51 Cal.3d 1063, 1079, quoting Strickland v. Washington, supra, 466 U.S. at p. 697.) It is not sufficient to show the alleged errors may have had some conceivable effect on the trials outcome; the defendant must demonstrate a reasonable probability that absent the errors the result would have been different. (People v. Williams (1997) 16 Cal.4th 153, 215; People v. Ledesma (1987) 43 Cal.3d 171, 217-218; see People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.)

In this case, even if Tylers trial counsel had no valid tactical reason for failing to object to the imposition of consecutive sentences, Tylers ineffective assistance of counsel claim must be rejected because he has failed to demonstrate a reasonable probability he would have received a more favorable sentence had his counsel objected. Because Tyler received indeterminate terms on each of the counts for murder and attempted murder, the trial court was not required to state its reasons on the record for electing to impose consecutive sentences on the multiple counts. (People v. Black (2005) 35 Cal.4th 1238, 1262, fn. 17 [No reason need be stated on the record for directing that indeterminate terms run consecutively to one another], disapproved on other grounds Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856]; People v. Arviso (1988) 201 Cal.App.3d 1055, 1058 [a trial court is not required to state its reasons for ordering one indeterminate term to run consecutively to another indeterminate term].) Although Tyler is technically correct no evidence was presented at trial that the rifle he used in the shooting was reloaded, as the trial court expressed, the evidence that the trigger on a rifle must be pulled each time a shot is fired and that 10 rifle casings were discovered at the crime scene supports the gist of the trial courts statement, namely, Tyler had to think before he fired each of the shots at several people. In addition, the four murder and attempted murder counts involved separate victims; and, as discussed in the probation report, Tyler was on probation at the time of the instant offenses and had multiple prior offenses that were of increasing seriousness. Given this record, we are convinced Tylers trial counsels failure to object to the imposition of consecutive terms did not adversely affect his sentence. (See People v. Waidla (2000) 22 Cal.4th 690, 719.)

5. The Firearm Enhancements of 25 Years to Life Under Section 12022.53, Subdivision (d), on Counts 3 and 4 Are Unauthorized

As explained, in sentencing Tyler on counts 2, 3 and 4 the trial court imposed on each count a life term, with a minimum eligible parole date of 15 years to life, plus a term of 25 years to life for a firearm enhancement under section 12022.53, subdivision (d). Although firearm enhancements under section 12022.53, subdivisions (b), (c) and (d), were alleged in the information as to counts 2, 3 and 4, with respect to counts 3 and 4, the jury was asked to make findings only on firearm enhancements under section 12022.53, subdivisions (b) and (c), not under section 12022.53, subdivision (d). To be sure, true findings on firearm enhancements under section 12022.53, subdivision (d), would have been proper in this case on counts 3 and 4, in which the victims were not injured, based on the murder of Moody, as charged in count 1, or the great bodily injury inflicted on Crusoe, as charged in count 2. (People v. Oates (2004) 32 Cal.4th 1048, 1055-1057 [number of 12022.53, subd. (d), enhancements not limited to number of deaths or great bodily injuries caused; imposition of multiple 12022.53, subd. (d), enhancements required on counts even when defendant did not cause death or great bodily injury to all victims if 12022.53, subd. (d), requirements found true as to each count].) But their imposition is unauthorized because the jury was not asked to make findings under section 12022.53, subdivision (d), on either count 3 or 4.[9]As a result, the firearm enhancements of 25 years to life on counts 3 and 4 must be stricken and, instead, a term of 20 years under section 12022.53, subdivision (c), imposed on those counts based on the jurys true findings on the special allegations under section 12022.53, subdivisions (b) and (c). ( 12022.53, subd. (f) [If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides for the longest term of imprisonment].)[10]

6. The Abstract of Judgment Must Be Corrected

As Tyler and the People point out, the abstract of judgment is incorrect in several respects: (1) With respect to counts 1 and 2, the abstract of judgment incorrectly reflects the firearm enhancement of 25 years to life imposed on those counts was pursuant to section 12022.53, subdivision (b), rather than section 12022.53, subdivision (d); (2) although on counts 3 and 4 for attempted murder, the trial court sentenced Tyler to life terms, with minimum eligible parole dates of 15 years for the criminal-street-gang enhancements, the abstract of judgment reflects a base term of 25 years to life on those counts; (3) on counts 3 and 4 the abstract of judgment also omits any reference to the firearm enhancements imposed under section 12022.53; and (4) on counts 2, 3 and 4 the abstract of judgment incorrectly states the criminal-street-gang enhancements were imposed pursuant to section 186.22, subdivision (b)(1), instead of subdivision (b)(5). We, therefore, direct the superior court to modify the abstract of judgment to reflect: (1) On counts 1 and 2 the imposition of firearm enhancements of 25 years to life under section 12022.53, subdivision (d); (2) on count 2 the imposition of a life term, with a minimum eligible parole date of 15 years pursuant to section 186.22, subdivision (b)(5), plus a term of 25 years to life pursuant to section 12022.53, subdivision (d); and (3) on counts 3 and 4 the imposition of life terms, with minimum eligible parole dates of 15 years pursuant to section 186.22, subdivision (b)(5), plus terms of 20 years pursuant to section 12022.53, subdivision (c).

DISPOSITION

The judgment is modified to strike the firearm enhancements of 25 years to life under section 12022.53, subdivision (d), on counts 3 and 4 and to impose firearm enhancements of 20 years under section 12022.53, subdivision (c), on those counts. As modified, the judgment is affirmed. The trial court is directed to modify the abstract of judgment to reflect (1) on counts 1 and 2 the imposition of firearm enhancements of 25 years to life under section 12022.53, subdivision (d); (2) on count 2 the imposition of a consecutive life term, with a minimum eligible parole date of 15 years pursuant to section 186.22, subdivision (b)(5), plus a term of 25 years to life pursuant to section 12022.53, subdivision (d); and (3) on counts 3 and 4 the imposition of consecutive life terms with minimum eligible parole dates of 15 years pursuant to section 186.22, subdivision (b)(5), plus terms of 20 years pursuant to section 12022.53, subdivision (c), and to forward a copy of the corrected abstract of judgment to the Department of Corrections.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

We concur:

WOODS, J. ZELON, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

[1] Statutory references are to the Penal Code.

[2] The trial at issue in this case was Tylers second on the murder, attempted murder and firearm possession counts. His first trial resulted in a mistrial after the jury was unable to reach a verdict.

[3] The trial court instructed the jury, The crimes charged in counts 1, 2, 3 and 4, namely murder and attempted murder, there must exist a union or joint operation of act or conduct and a certain mental state in the mind of the perpetrator. Unless this mental state exists, the crime to which it related is not committed.

[4] The issue of prosecutorial misconduct is currently pending before the Supreme Court in People v. Lopez, review granted July 19, 2006, S143615, which involves a prosecutors reference to the horrendous crimes committed by Catholic priests during closing argument in the trial of a priest accused of committing a lewd act on a child.

[5] Specifically, Tyler complains about the prosecutors statement in closing argument, Now, Ladies and Gentlemen, you put [the two eyewitness identifications] together because defense counsel will ask you to pick apart each thing individually because Ive seen it a hundred times, and Ill guess hes going to do that. The prosecutor later added, Ladies and Gentlemen, the most common defense argument I see all the time is the very simple form of logic. Its called from arguing from the parts to the whole. Its like theres a ship floating in the ocean, you dont look at the ship and say, gee, its floating, it must work. You say the rudder has a nick[] [in it] and the starboard post is damaged and theres rust on the left rear window, and you talk about each individual part saying why its defective. In his rebuttal argument the prosecutor stated, And [defense counsel] talked about his job and the history of the country and our legal system. Well, Ladies and Gentlemen, his job is to confront and cross-examine every witness, this is a jury trial. Thats what he does. Theres never a point where the defense just says, the D.A. is right, that witness is good. If I put on 10 witnesses, he would tell you why all 10 are wrong. . . . No matter what evidence there is, counsel will always argue its not enough.

[6] Because we find the prosecutors remarks about which Tyler complains did not prejudice his case, we necessarily reject his alternative contention his trial counsel was ineffective for failing to object to and request admonitions to the jury regarding the alleged misconduct. (Strickland v. Washington (1984) 466 U.S. 668, 686-687 [104 S.Ct. 2052, 80 L.Ed.2d 674] [ineffective-assistance claim requires not only a showing counsels performance was deficient but also a showing there is a reasonable probability that, but for counsels deficient performance, the result of the trial would have been different]; People v. Williams (1997) 16 Cal.4th 153, 215; People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.) Indeed, rarely will the failure to object establish incompetence of counsel, because the decision whether to raise an objection is inherently tactical. [Citation.] (People v. Lewis (2001) 25 Cal.4th 610, 678.) As Tyler himself admits with respect to the prosecutors remarks during closing argument, his trial counsel may have declined to object to avoid creating the impression he was trying to use immaterial details to obscure the main issues in the case or was giving credence to the prosecutors implications.

[7] Additional exceptions to the imposition of a 10-year enhancement exist for certain violent felonies specified in section 186.22, subdivision (b)(4).

[8] In contrast, Tyler received a sentence of 25 years to life, plus a firearm enhancement of 25 years to life under section 12022.53, subdivision (d), for the murder charged in count 1. In accordance with Lopez no 10-year enhancement under section 186.22, subdivision (b)(1), was imposed for the jurys true finding on the criminal-street-gang enhancement; and the 15-year minimum eligible parole date under section 186.22, subdivision (b)(5), was subsumed in the term of 25 years to life on the underlying first degree murder offense.

[9] While we are aware of the general proposition of law, cited by the People in supplemental briefing requested by the court on this issue, that technical defects in a verdict may be disregarded if the jurys intent to convict of a specified offense within the charges is unmistakably clear, and the accuseds substantial rights suffered no prejudice (People v. Webster (1991) 54 Cal.3d 411, 447), the jurys failure to make a finding ‑‑ because it was not asked ‑‑ on a special allegation under section 12022.53, subdivision (d), does not constitute merely a technical defect in the verdict, nor does the verdict as returned demonstrate the jurys unmistakably clear intent to find true that special allegation.

[10] The trial court in sentencing Tyler did not mention the jurys true findings on the section 12022.55 enhancements with respect to counts 1, 2, 3 and 4; the section 12022.53, subdivisions (b) and (c), enhancements with respect to count 2; and the section 12022.53, subdivision (b), enhancements with respect to counts 3 and 4. We treat the duplicative section 12022.55 enhancements as stricken, and the duplicative section 12022.53 enhancements as imposed and stayed. (People v. Bracamonte (2003) 106 Cal.App.4th 704, 713 [when maximum 12022.53, subd. (d), enhancement is imposed, duplicative firearm enhancements under the specific provisions enumerated in subd. (f) of 12022.53, including 12022.55, should be stricken, but any duplicative enhancements under 12022.53 itself must be imposed and stayed].) The issue whether lesser enhancements should be stricken, stayed or simply not imposed at all when separate firearm enhancements under sections 12022.5 and 12022.53 are found true and the longest enhancement is imposed is currently pending before the Supreme Court in People v. Gonzalez, review granted March 14, 2007, S149898.