P. v. Lord

Filed 10/6/06 P. v. Lord CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Mark S. Arnold, Judge. Affirmed as modified.

Laura Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar and Beverly K. Falk, Deputy Attorneys General for Plaintiff and Respondent.

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Tyler Jones Lord appeals from his conviction by jury verdict of attempted murder and assault with a firearm. He asserts that his convictions must be reversed because of prosecutorial misconduct and that great bodily injury enhancements should have been stricken rather than stayed. We find no prosecutorial misconduct. The great bodily injury enhancements under Penal Code section 12022.7[1] should have been stricken because a 25-year-to-life enhancement was also imposed under section 12022.53, subdivision (d). We modify the abstract of judgment accordingly.

FACTUAL AND PROCEDURAL SUMMARY

Appellant was an acquaintance of Will Shambaugh. They smoked marijuana together in the detached garage of Shambaugh�s residence in Rancho Palos Verdes, across the street from Marymount College, which appellant attended. Appellant went to Shambaugh�s nearly every day, often bringing food. In addition, appellant bought Shambaugh a cell phone. Some of Shambaugh�s other friends who also smoked marijuana in the garage did not like appellant.

On the afternoon of March 12, 2004, Shambaugh, Vic Larosa, Eric Merli, Alex McClain, and BM were smoking marijuana in the garage at Shambaugh�s home. Appellant arrived later with two bongs in a case. They all used the bongs to smoke more marijuana. When appellant was asked to go out to move his car, BM took the bongs and drove away in BM�s car. McClain and Larosa followed him in their respective cars. They later met, and BM turned the bongs over to McClain. Appellant left the garage after the bongs were taken.

Later that afternoon, McClain returned to the Shambaugh garage. After he left, Shambaugh showed his girlfriend, Crista Bergkamp, one of the bongs taken from appellant. That night, about 7:45 p.m., Travis McPeak and his girlfriend, Breanna Bateman, came to the garage and began smoking marijuana with Shambaugh. Shortly after their arrival, appellant appeared in the doorway of the garage. He raised a semi-automatic handgun, pointed it at Shambaugh�s head, and fired. Shambaugh fell to the floor. Appellant took a bong from Shambaugh and another, together with a bong bag.

When McPeak yelled, appellant pointed the gun at him. McPeak jumped behind a couch. Appellant took the two bongs and the bag, and left the garage. Bateman and McPeak followed him out of the garage, and appellant turned and pointed the gun toward them. They moved up against the wall of the house, and then went inside to call for help. Bergman went to Shambaugh, who was repeatedly moaning �Tyler Lord.� Shambaugh survived the shooting, but part of his skull was removed and he suffered from paralysis on his left side. He had to learn to walk and talk again. McPeak and Bateman identified appellant as the shooter.

Appellant was arrested and charged with attempted murder with premeditation and deliberation (� 664, subd. (a)/� 187, subd. (a)), with allegations that appellant personally discharged a firearm causing great bodily injury (�� 12022.53, subd. (d), 12022.7, subds. (a) and (b)). He also was charged with assault with a firearm on Bateman and McPeak. (�� 245, subd. (a)(2), 12022.5.) Appellant was found guilty as charged, and the special allegations were found true.

Appellant�s motion for new trial was denied. He was sentenced to life with the possibility of parole, plus a consecutive sentence of 25 years to life for the section 12022.53, subdivision (d) firearm enhancement. The remaining enhancements under section 12022.7, subdivisions (a) and (b) were stayed. The sentences on the assault counts were ordered to run concurrently to the attempted murder sentence. Appellant filed a timely appeal.

DISCUSSION

I

Appellant raises several charges of prosecutorial misconduct.

A. Characterizing Defense Argument as Speculation

In closing argument, defense counsel discussed inconsistencies in Travis McPeak�s testimony. He also argued that it would not have been possible for McPeak and Bateman to see both Shambaugh and appellant at the same time, based on their testimony describing the positions of each person before the shooting occurred. Counsel pointed out that McPeak testified that Shambaugh was near the stereo at the time of the shooting, a fact not mentioned by Bateman in her testimony. Referring to the prosecutor�s opening summation, defense counsel argued: �The prosecutor says, �You know, what difference does it make whether or not the shot was fired from the step or from 10 feet away or 15 feet away.� Well, it makes a big difference because if the shot is fired from the step, then you are at a higher elevation than certainly somebody who is sitting down, certainly somebody who is in the process of getting up [Shambaugh]. And if you--even if you intend to fire the gun, you don�t--you are not aiming it at the person, as the prosecutor says, but you may be aiming it over his head, depending on how the gun is aimed. And that is very relevant in determining whether or not the facts are such that they�ve been proven beyond a reasonable doubt so that you can draw an inference of an intent to kill. So it makes a big difference whether the person is on the step or not on the step in terms of the angle in which the shot was fired.�

Appellant�s claim of misconduct is based on the prosecutor�s rebuttal to this argument. In it, the prosecutor argued: �Now, the defense says, �Well, maybe he was trying to shoot over his head.� Where is there any evidence of that at all? Do you want to talk speculation? Where is there one shred of evidence that the defendant was trying to shoot over Will Shambaugh�s head? There is none, zero, nothing. That is pure speculation, and it is completely inappropriate to ask you to consider that.� The trial court overruled a defense objection to this argument.

After the jury was excused for the night, defense counsel moved for a mistrial, contending that the prosecutor�s statements were an attack on his integrity and constituted misconduct. The trial court denied the motion, finding that the prosecutor�s statements were fair comment on the evidence.

As a preliminary matter, we reject respondent�s argument that appellant failed to preserve the issue for appeal. The objection, which was immediately overruled before there was an opportunity to request an admonition, in conjunction with the motion for mistrial, preserved the issue. (People v. Hill (1998) 17 Cal.4th 800, 820-821.)

��The applicable federal and state standards regarding prosecutorial misconduct are well established. ��A prosecutor�s . . . intemperate behavior violates the federal Constitution 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. Gionis (1995) 9 Cal.4th 1196, 1214 [40 Cal.Rptr.2d 456, 892 P.2d 1199]; People v. Espinoza (1992) 3 Cal.4th 806, 820 [12 Cal.Rptr.2d 682, 838 P.2d 204].) 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.��� (People v. Espinoza, supra, 3 Cal.4th at p. 820.)� (People v. Samayoa (1997) 15 Cal.4th 795, 841 [64 Cal.Rptr.2d 400, 938 P.2d 2] . . . .)� (People v. Hill, supra, 17 Cal.4th at p. 819.) �A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel.� (Id. at p. 832.)

The argument made by appellant is similar to an argument made and rejected in People v. Frye (1998) 18 Cal.4th 894, 978. In Frye, defense counsel in closing argument intimated that persons other than his client might have committed the murder. The prosecutor responded by arguing that defense counsel was irresponsible in casting suspicion on others. The Supreme Court explained: �A defendant�s conviction should be based on the evidence adduced at trial, and not on the purported improprieties of his counsel. [Citation.] When a prosecutor denigrates defense counsel, it directs the jury�s attention away from the evidence and is therefore improper. [Citation.] In addressing a claim of prosecutorial misconduct that is based on the denigration of opposing counsel, we view the prosecutor�s comments in relation to the remarks of defense counsel, and inquire whether the former constitutes a fair response to the latter. (U.S. v. Lopez-Alvarez (9th Cir.1992) 970 F.2d 583, 597.)� (Id. at p. 978.)

The Frye court concluded that the prosecutor�s comments were proper because the point of her criticism was defense counsel�s lack of evidentiary support for a claim that someone else committed the murder. This focus on the evidence adduced at trial, rather than on the integrity of counsel, was proper. (People v. Frye, supra, 18 Cal.4th at p. 978.) The comments made by the prosecutor here were similar in that the attack was on the lack of evidence to support the defense argument that appellant may have aimed over Shambaugh�s head. We find no misconduct.

B. References to Defense Use of Crime Scene Photographs

Appellant also argues the prosecutor committed misconduct by lying to the jury and ascribing an improper purpose to defense counsel in the use of crime scene photographs. He cites a portion of the rebuttal argument in which the prosecutor asserted that defense counsel was using the photographs to make the witnesses look bad. Appellant fails to identify the photographic exhibits to which he is referring, or to cite to the reporter�s transcript where the photographs were used in examination of the witnesses. We are not told what the photographs of the garage depict that would be damaging to the witnesses. In the passage cited by appellant, the prosecutor says only that one photograph showed an obscenity about the police.

It is appellant�s burden to provide an adequate record on appeal. (People v. Akins (2005) 128 Cal.App.4th 1376, 1385.) Failure to do so will constitute waiver of the issue. (Ibid.) We are unable to assess any possible prejudice to the defense based on this record because appellant does not specify what the photographs depict or how they were used in the examination of witnesses. The issue is waived.

C. Denigrating Defense Interpretation of the Evidence

Appellant also contends the prosecutor committed misconduct by repeatedly telling the jury that defense counsel was wrong and that it was inappropriate to argue there were other reasonable interpretations of the evidence which did not support a guilty verdict. In support of this assertion, appellant cites four pages of the reporter�s transcript, but does not specify the passages which are the basis for the argument. On the first page cited, the prosecutor is reported to argue that the defense had no evidentiary support for its assertion that McPeak and Bateman were under the influence of marijuana at the time of the shooting. The prosecutor also argued that because the defense had no explanation for why Bateman and McPeak would lie, the defense insinuated that their identification of appellant was mistaken. The first of these arguments again focused on the lack of evidence to support the defense theory, and was proper. (People v. Frye, supra, 18 Cal.4th at p. 978.) The second constituted fair comment, arguing that under these circumstances, the identification could not have been mistaken because Bateman and McPeak knew appellant.

Appellant also cites passages in which the prosecutor asserted that the defense counsel was improperly speculating when he questioned the gunshot residue test results. This comment focuses on the lack of evidentiary support for the defense theory and is not misconduct under People v. Frye, supra, 18 Cal.4th at page 978.

D. References to Defense Failure to Provide an Explanation

Appellant also contends the prosecutor repeatedly argued that the defense had failed to provide an explanation for certain prosecution evidence relating to the identification of appellant as the shooter by McPeak and Bateman, and the gunshot residue tests. He contends that the prosecutor committed misconduct by insinuating that the defense had the burden of presenting affirmative evidence to demonstrate a reasonable doubt, citing People v. Hill, supra, 17 Cal.4th 800.

In Hill, the prosecutor first argued ��There has to be some evidence on which to base a doubt.�� (People v. Hill, supra, 17 Cal.4th at p. 831, italics omitted.) After a defense objection was overruled, she continued ��There must be some evidence from which there is a reason for a doubt. You can�t say, well, one of the attorneys said so.�� (Ibid.) Although it found the comments somewhat ambiguous, the Supreme Court concluded that there was misconduct because the statements could reasonably be interpreted to suggest that the prosecutor did not have the burden of proving each element of the crimes charged beyond a reasonable doubt. In addition, California law does not require affirmative evidence to demonstrate reasonable doubt. (Ibid.)

Appellant does not identify the specific comments which form the basis for this argument, citing only to certain pages from the reporter�s transcript. We have examined the cited record in an attempt to discern the comments challenged by appellant. The first page cited, 2496, contains no comments which approach the language used by the prosecutor in Hill. We infer that appellant is referring to a statement by the prosecutor that the defense could not offer a reason for Bateman and McPeak to lie in identifying appellant as the shooter. There was no reference, express or implicit, to reasonable doubt.

The second page cited, 2497, continues the argument regarding the identification by Bateman and McPeak. Then the prosecutor referred to the defense argument that McPeak and Bateman had discussed their testimony in advance to make their statements consistent. The prosecutor argued that the defense could not have it both ways, to capitalize on inconsistencies in their statements and to argue that they had coordinated their testimony. Again, we find no improper reference to the burden of proof. This was fair comment on the defense theory.

The final set of pages cited, 2499-2500, contains language we have discussed, in which the prosecutor responds to the defense challenge to the gunshot residue test results. There is no reference to burden of proof. The comments by the prosecutor here do not rise to the level criticized in People v. Hill, supra, 17 Cal.4th at pages 831-832.

Instead, the prosecutor properly argues there is no evidence to support the defense theories.

We find no prosecutorial misconduct.

II

Appellant challenges enhancements imposed and stayed for personally inflicting great bodily injury on Shambaugh under sections 12022.7, subdivisions (a) [3 years] and (b) [five years]. The trial court also imposed a 25-year-to-life enhancement pursuant to section 12022.53, subdivision (d) for the personal and intentional discharge of a firearm, causing great bodily injury. Appellant cites section 12022.53, subdivision (f), which provides in pertinent part: �An enhancement for great bodily injury as defined in Section 12022.7 . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to subdivision (d).�

In People v. Bracamonte (2003) 106 Cal.App.4th 704 (Bracamonte), we construed a companion provision of section 12022.53, subdivision (f) as requiring the trial court to strike an enhancement under section 12022.5 for use of a firearm where a 25-year-to-life enhancement has been imposed under section 12022.53, subdivision (f). That provision provides: �An enhancement involving a firearm specified in Section 12021.5, 12022, 12022.3, 12022.4, 12022.5, or 12022.55 shall not be imposed on a person in addition to an enhancement imposed pursuant to this section.� We reasoned that section 12022.53, subdivision (f) is a mandatory directive prohibiting the imposition of an additional enumerated enhancement. (106 Cal.App.4th at p. 712, fn. 5.)

Respondent asserts that appellant never argued in the trial court that the great bodily injury enhancements should have been stricken rather than stayed, and that he is unable to demonstrate prejudice from the order staying the enhancements. An unauthorized sentence may be corrected on appeal whether or not there was an objection at the trial court level. (People v. Smith (2001) 24 Cal.4th 849, 854.)

In addition, respondent contends that Bracamonte is inconsistent with other authorities. Respondent focuses on language in Bracamonte addressing lesser enhancements under section 12022.53, a situation not presented here. (Bracamonte, supra, 106 Cal.App.4th at p. 711.) In this portion of Bracamonte, we cited People v. Haykel (2002) 96 Cal.App.4th 146, which in turn quoted language from People v. Harvey (1991) 233 Cal.App.3d 1206, 1231 to the effect that �[u]nless a statute says otherwise, an enhancement may be imposed or stricken, but this is the extent of the trial court�s discretion.� Based on this language, respondent argues that because section 12022.53, subdivision (f) provides that the enhancement �shall not be imposed� �the Penal Code section 12022.7 findings in the instant case fall within an exception to the requirement that an enhancement must be imposed or stricken but not stayed.�

We disagree with respondent�s analysis. As we observed in Bracamonte, the trial court must strike an enhancement under section 12022.53, subdivision (f) because that statute expressly bars imposition of the enhancement in addition to an enhancement under section 12022.53. (Bracamonte, supra, 106 Cal.App.4th at p. 712, fn. 5.) There is no statutory authority to allow the trial court to stay imposition of an enhancement under section 12022.7 where a 25-year-to-life enhancement has been imposed under section 12022.53, subdivision (d).

Respondent also cites language from People v. Crites (2006) 135 Cal.App.4th 1251, which is inapposite because that case did not address the express language of section 12022.53, subdivision (f). Finally, respondent asserts that staying the section 12022.7 enhancements is the �functional equivalent� of striking them. As we have discussed, the clear language of section 12022.53, subdivision (f) is mandatory; the additional enhancement may not be imposed. The trial court erred in staying the section 12022.7 enhancements.

DISPOSITION

The enhancements for great bodily injury imposed under section 12022.7, subdivisions (a) and (b) are stricken from count 1. As modified, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J.

MANELLA, J.

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[1] All statutory references are to the Penal Code unless otherwise indicated.