Filed 9/21/18 P. v. Sanders CA5

Opinion after recalling remittitur and vacating opinion filed on 8/28/17

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. W. Kent Hamlin, Judge.

Victor Blumenkrantz, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Stephen G. Herndon and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Isaac Jonathan Sanders stands convicted of multiple offenses, including two counts of carjacking, one count of assault with a semiautomatic weapon, and one count of evading a peace officer. He contends his convictions must be reversed because the prosecutor in rebuttal argument made misstatements of the evidence and defense counsel failed to object, thus rendering ineffective assistance of counsel. In supplemental briefing addressing Senate Bill No. 620, he contends his case must be remanded to permit the trial court to exercise its discretion to strike firearm enhancements. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

Sanders was charged in counts 1 and 2 with carjacking, in violation of Penal Code[1] section 215, subdivision (a); counts 3 and 4 with assault with a semiautomatic firearm, in violation of section 245, subdivision (b); and in count 5 with evading a peace officer, in violation of Vehicle Code section 2800.2, subdivision (a). It also was alleged as to the carjacking counts that Sanders personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c); and as to the assault counts that Sanders personally used a firearm within the meaning of section 12022.5, subdivision (a). Additionally, it was alleged that Sanders had suffered two prior convictions within the meaning of section 667.5, subdivision (b).

On December 29, 2015, a jury found Sanders guilty on counts 1, 2, 3, and 5, but not guilty on count 4. The jury also found true the firearm enhancements appended to counts 1 and 3. On December 30, 2015, Sanders admitted one prior conviction and the other was dismissed.

At the February 16, 2016, sentencing hearing, the trial court imposed a total term of 31 years four months.

Evidence at trial established that in December 2012, Kayla Sanchez and her friend, Kim Dang, drove a white 2007 Honda Accord to the market. As they parked and exited the car, Sanders walked up to Sanchez while holding a gun and demanded the car keys. Sanchez asked if he was serious; Sanders said he was.

Sanders had been pointing the gun at Sanchez’s chest; he raised it close to her left ear and fired a shot. Sanchez froze and Sanders took the keys from her hand. At the sound of the shot, Dang, who had started walking toward the market, turned and ran to the driver’s side of the car. Sanders climbed into the car, but Dang prevented the door from closing.

Dang told Sanders to get out of the car. Sanders pointed the gun at Dang and Sanchez yelled at Dang to let Sanders take the car. Scared, the two women stepped back as Sanders drove off. Dang called 911. Sanchez got another woman to dial 911 and Sanchez relayed to the dispatcher what had occurred.

Sanchez told the dispatcher that a black male in a puffy, black jacket had approached her with a gun and taken the car. Dang and Sanchez waited for an officer to arrive; they then explained in detail what had happened. Sanchez told the officer the gun was small and black.

Meanwhile, Eve Hauter was leaving the market at the same time she heard a female yell for help and saw a car speed away. She hopped into her own car, dialed 911, and followed the speeding vehicle. As she followed Sanders, she reached a location where she saw a patrol car. The dispatcher told her to stop following Sanders and the police would pick up the pursuit. The police pursued Sanders in the stolen car.

Officer John Swanson and his partner pursued the white Honda Accord, which they believed to be the vehicle carjacked from Dang and Sanchez. Swanson activated the patrol car’s siren and overhead lights in an attempt to get the vehicle to stop. Instead, the Honda exceeded 50 miles per hour on a residential street and failed to stop at a stop sign. As the Honda continued to accelerate away from Officer Swanson, the Honda ended up driving on the wrong side of the street and eventually collided with a tree in a median. A reconstruction of the accident reached the conclusion that the Honda was traveling between 61 and 71 miles per hour when it crashed.

Officer Swanson and his partner approached the Honda; the driver was Sanders. Sanders did not respond to Swanson’s commands. Swanson removed Sanders from the car and placed him into custody.

Detective Christopher Fern went to the crash site. Officers told him Sanders had been found sitting inside the car in the driver’s seat. Dang and Sanchez went to the crash site. Fern separated the women and showed them a photo lineup containing Sanders’s photo. Sanchez pointed to Sanders’s photo and told Fern that “looks like him.” At the time she made the photo identification, Sanchez was about 100 feet from where Sanders was being loaded into an ambulance. Sanchez identified Sanders in court as the person she had identified in the photo. Dang was unable to identify anyone from the photo lineup.

At the hospital, a black, oversize jacket was taken from Sanders. Gunshot residue was collected from his hands.

The next day, December 29, 2012, Swanson received a call about a gun found along the pursuit path. When he arrived, the reporting party, Tammy Shouse, showed him the handgun. Swanson removed a live bullet from the chamber. Shouse stated she heard a siren the previous evening and heard something hit her vehicle. Shouse’s brother found the gun and Shouse called police.

Swanson and his partner also returned to the market where the Honda was carjacked and looked for shell casings. A shell casing was found in the area near where the Honda had been parked. The casing was compared to a cartridge test fired from the gun turned over by Shouse. The comparison showed the shell casing had been fired from the gun.

Detective Bartlett Ledbetter interviewed Sanders at the hospital on December 31, 2012. After waiving his rights under Miranda v. Arizona (1966) 384 U.S. 436, Sanders gave a statement. Sanders stated he climbed into the car, saw lights, and crashed. He also claimed he was “in a drug haze” and did not remember getting into the car.

At trial, Sanders testified he was walking down the street when he saw a car with its door open and the dome light on. He looked inside, stated he saw a purse and keys inside, hopped into the car, and drove away. He heard someone behind him honk and saw a police car coming toward him. Somehow, the “car did a complete 180” and he “impacted [] a tree.” Sanders denied throwing a gun out of the car he drove, or committing a carjacking at the market.

During rebuttal argument, the prosecutor stated:

“And then remember Officer Fern? He showed [] Sanchez the photo lineup and she was able to identify the defendant. There is [Sanchez’s] signature right there. She identified the defendant. Circumstantial evidence, reasonable inference. [Sanchez was] able to directly identify the defendant. But remember her testimony? The gun was next to her left ear. She saw the shot or heard the shot being fired, and then she’s able to identify the defendant.

“Now, remember during cross-examination the defense cross-examined [Sanchez] and was trying to get an approximation because remember [Sanchez] drove to the crash scene. But [Sanchez] said, I—I couldn’t identify the defendant at the crash scene, I was over 100 feet away. But she was able to pick the defendant out of the photo lineup.”

There was no objection to these comments by defense counsel.

Sanders filed a notice of appeal on February 22, 2016. In his initial opening brief, Sanders maintained the prosecutor committed misconduct and his convictions therefore should be reversed. Alternatively, he maintained defense counsel rendered ineffective assistance for failing to object to the prosecutor’s remarks. In an opinion filed August 28, 2017, we affirmed Sanders’s convictions.

On October 5, 2017, Sanders filed a petition for review in the Supreme Court. The petition for review was denied on November 15, 2017. On January 10, 2018, Sanders filed a motion to recall the remittitur to address the effect of Senate Bill No. 620 on the section 12022.53, subdivision (c) enhancement imposed in his case.

The People did not oppose the motion to recall the remittitur. On April 30, 2018, this court granted the motion; the prior submission of the appeal was vacated due to the recall of the remittitur; and the parties were provided an opportunity to submit supplemental briefing addressing the applicability of Senate Bill No. 620 to Sanders’s case and whether remand is required.

DISCUSSION

Sanders contends the statements by the prosecutor in rebuttal, “Now, remember during cross-examination the defense cross-examined [Sanchez] and was trying to get an approximation because remember [Sanchez] drove to the crash scene. But [Sanchez] said, I—I couldn’t identify the defendant at the crash scene, I was over 100 feet away” constitute misstatements of the evidence and therefore is prosecutorial misconduct. Sanders also contends that defense counsel’s failure to object to the comment and request an admonition constitutes ineffective assistance of counsel.

In his supplemental brief addressing the applicability of Senate Bill No. 620 to his case, Sanders contends Senate Bill No. 620’s amendment to section 12022.53 applies to him and the case must be remanded for the trial court to exercise its discretion.

1. Claim of Prosecutorial Misconduct

Legal Standard

The Fourteenth Amendment to the United States Constitution is violated when a prosecutor’s misconduct infects the trial with such unfairness as to deny due process. (People v. Tully (2012) 54 Cal.4th 952, 1009.) The misconduct must be significant enough to deny a fair trial. (Ibid.) Before a federal constitutional error can be deemed harmless, a reviewing court must declare it was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)

Even if the prosecutor’s misconduct does not result in a fundamentally unfair trial, California law is violated if the prosecutor used deceptive or reprehensible methods in attempting to persuade the jury or the court. (People v. Tully, supra, 54 Cal.4th at pp. 1009-1010.) Prosecutorial misconduct under state law will not result in reversal of a defendant’s conviction unless it is reasonably probable the defendant would have obtained a result more favorable without the misconduct. (Id. at p. 1010.)

“ ‘[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements.’ ” (People v. Hill (1998) 17 Cal.4th 800, 829-830.) A defendant may not make an appellate assertion of prosecutorial misconduct in the trial court 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.’ ” (People v. Stanley (2006) 39 Cal.4th 913, 952.) An objection may be excused if it would have been futile or if an admonition would not have cured the harm. (People v. Dykes (2009) 46 Cal.4th 731, 760.)

Analysis

The opening argument made by the prosecutor covers nearly nine pages of the reporter’s transcript. Defense counsel’s argument covers 10 pages. Rebuttal argument by the prosecutor covers seven pages. Sanders challenges two sentences in the rebuttal argument, to which he acknowledges no objection was made in the trial court.

The two challenged sentences are misstatements of the evidence. The prosecutor incorrectly stated Sanchez testified she could not identify Sanders at the crash scene as she was 100 feet away from him; and incorrectly told the jury this information was elicited in cross-examination when it was not. It is an untenable leap of reasoning, however, for Sanders to argue these two sentences deprived him of a fair trial and due process.

We need not address the issue further because a reversal is unwarranted unless the prosecutorial misconduct was prejudicial, i.e., unless it is reasonably probable the jury would have reached a result more favorable to Sanders if the misconduct had not occurred. (People v. Partida (2005) 37 Cal.4th 428, 439.) Such is not the case.

The evidence was overwhelming that Sanders carjacked the vehicle, used a firearm, and led officers on a high speed chase. In fact, Sanders admitted taking the car. Sanchez identified Sanders in a photo lineup at the scene of the crash and in trial as the person who had carjacked the vehicle, using a gun. The carjacker had a small black handgun and fired a shot by Sanchez’s ear. Sanders had some gunshot residue on his hand. The high speed chase was captured by street cameras. Sanders had a puffy, black jacket on him that matched the description given by Sanchez.[2]

Regardless of the misstatement of evidence by the prosecutor in these two sentences, the instructions conveyed the need to establish each element beyond a reasonable doubt. The trial court defined the proper standard of proof, and the jury was instructed regarding that standard. The jury was instructed as to what constituted evidence, informed that the attorneys’ remarks were not evidence, and specifically that the closing remarks of the attorneys’ were not evidence. The jury also received instructions on how to evaluate witness testimony, including when testimony may be conflicting. Additionally, the trial court instructed the jury to follow the court’s instructions if the attorneys’ comments were in conflict. We presume the jury followed the court’s instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436.)

More specifically, the Supreme Court held in People v. Sanchez (1995) 12 Cal.4th 1, 70, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22: “[W]e presume the jury treated the court’s instructions as statements of law, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.” Given the state of this record, we disagree with Sanders that the two sentences uttered by the prosecutor misstating the evidence deprived him of a fair trial.

2. Claim of Ineffective Assistance of Counsel

Standard of Review

“Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To establish ineffective assistance of counsel, “ ‘a defendant must show both that his counsel’s performance was deficient when measured against the standard of a reasonably competent attorney and that counsel’s deficient performance resulted in prejudice to defendant ….’ ” (People v. Lewis (2001) 25 Cal.4th 610, 674.) Defense counsel’s failure to object rarely establishes ineffective assistance. (People v. Avena (1996) 13 Cal.4th 394, 444-445.)

“[W]hen the reasons for counsel’s actions are not readily apparent in the record, we will not assume constitutionally inadequate representation and reverse a conviction unless the appellate record discloses ‘ “no conceivable tactical purpose” ’ for counsel’s act or omission.” (People v. Lewis, supra, 25 Cal.4th at pp. 674-675; accord, People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [“ ‘ “[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] … unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” the claim on appeal must be rejected.’ [Citations.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding”]; People v. Ray (1996) 13 Cal.4th 313, 349 [“In order to prevail on [an ineffective assistance of counsel] claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission.”].)

Where defense counsel wrongly fails to object, a claim of ineffective assistance of counsel may arise. However, such a claim requires the court to consider “whether counsel’s assistance was reasonable considering all the circumstances.” (Strickland v. Washington (1984) 466 U.S. 668, 688.) This analysis requires demonstrating both that counsel’s conduct was deficient and that the deficient performance prejudiced the defense. (Id. at p. 687.) “ ‘Tactical errors are generally not deemed reversible; and counsel’s decisionmaking must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation .…” ’ ” (People v. Hart (1999) 20 Cal.4th 546, 623-624.) “In making the determination whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law.” (Strickland v. Washington, supra, 466 U.S. at p. 694.)

Sanders bears the burden of proving ineffective assistance of counsel. (People v. Mattson (1990) 50 Cal.3d 826, 876-877.) “[I]n assessing a Sixth Amendment attack on trial counsel’s adequacy mounted on 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; accord, People v. Stewart (2004) 33 Cal.4th 425, 459.)

Analysis

Initially, we note that defense counsel was not asked to explain his tactical decision. Claims of ineffective assistance should be raised in a petition for writ of habeas corpus, not in a direct appeal, where counsel can respond to any claims of ineffective assistance. (People v. Ray, supra, 13 Cal.4th at p. 349.) Furthermore, when the

“ ‘ “record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] … unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” the claim on appeal must be rejected.’ ” (People v. Mendoza Tello, supra, 15 Cal.4th at p. 266.) Regardless, we cannot say that counsel’s failure to object constituted ineffective assistance.

Sanders contends defense counsel rendered ineffective assistance by failing to object to the prosecutor’s two sentences misstating the evidence. Any ineffective assistance of counsel was not prejudicial.

Moreover, the misstatements of the prosecutor cast some doubt on Sanchez’s identification of Sanders, a fact that would inure to the benefit of Sanders. Additionally, the instructions to the jury adequately addressed any misstatements of evidence by instructing the jury what constituted evidence and specifically, that the comments and closing arguments of the attorneys were not evidence. Coupled with the instructions conveying the need to establish each element beyond a reasonable doubt and the definition of the proper standard of proof, it is not reasonably probable that the absence of an objection deprived Sanders of a more favorable outcome. (People v. Cunningham (2001) 25 Cal.4th 926, 1003.)

3. Senate Bill No. 620

In our order filed April 30, 2018, we recalled the remittitur in this case and directed the parties to brief the applicability of Senate Bill No. 620 to Sanders’s section 12022.53, subdivision (c) enhancement. Sanders filed a supplemental brief on May 30, 2018. The Attorney General submitted a supplemental brief on this issue on July 11, 2018. Sanders filed a supplemental reply brief on July 26, 2018.

At the time Sanders was charged, convicted, and sentenced, subdivision (h) of section 12022.53 provided: “Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.” (Stats. 2010, ch. 711, § 5.) Thus, the trial court here was required to, and did, enhance Sanders’s sentence by 20 years for the section 12022.53, subdivision (c) enhancement.

After Sanders was sentenced, but before his judgment was final, the Legislature enacted Senate Bill No. 620. On October 11, 2017, the Governor signed Senate Bill No. 620, effective January 1, 2018. (Stats. 2017, ch. 682, § 1.) As relevant to this case, Senate Bill No. 620 amends section 12022.53 to give discretion to the trial court to strike a firearm enhancement in the interest of justice. Section 12022.53 was amended by Senate Bill No. 620 to add the following language:

“(h) The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.” (Stats. 2017, ch. 682, § 2.)

Sanders’s judgment is not yet final and Sanders and the People both contend Senate Bill No. 620’s amendment to section 12022.53 applies retroactively to cases not yet final on appeal. (In re Estrada (1965) 63 Cal.2d 740, 746; People v. Francis (1969) 71 Cal.2d 66, 75-76; People v. Brown (2012) 54 Cal.4th 314, 323.) At least three published appellate decisions have held Senate Bill No. 620 applies retroactively in cases where the judgment is not yet final. (See People v. Billingsley (2018) 22 Cal.App.5th 1076, 1080 (Billingsley); People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679.) For purposes of this appeal, we accept that Senate Bill No. 620 applies to Sanders’s case.

Sanders also contends that the matter should be remanded for the trial court to exercise its discretion under section 12022.53, subdivision (h), to strike the section 12022.53, subdivision (c) enhancement. The People contend remand is not appropriate because the trial court’s comments and sentencing choices clearly indicate the trial court would not have exercised discretion to strike the firearm enhancement. The record supports the People’s position.

At Sanders’s initial sentencing, the trial court clearly indicated that it would impose the 20-year firearm enhancement, even if it had discretion to do otherwise. The trial court found the case against Sanders to be “a very strong case” and that “as carjackings go, this is one of the more serious you can imagine; an actual discharge of a firearm, it being pointed at not one but two individuals.” The trial court also noted that Sanders put “children and others in the neighborhood at risk by throwing the firearm out of the vehicle” as he fled into a neighborhood “at insane speeds on city streets up to 70 miles an hour.” The trial court found this to be an “extremely dangerous case.”

With respect to the 20-year enhancement under section 12022.53, subdivision (c), the trial court stated it was an “enhancement that by law I’m required to impose, and frankly ought to be imposed, given the facts of this case. Even if I had discretion to strike it, I can’t imagine that I would on these facts.” Noting the seriousness of the crimes, Sanders’s prior criminal history, and poor performance on probation and parole, the trial court imposed the aggravated term on the principal offense, enhanced by 20 years for the section 12022.53, subdivision (c) enhancement. The terms for other counts were imposed as consecutive, not concurrent, terms of imprisonment. The trial court did strike a section 667.5 enhancement on the basis the underlying felony was now a misdemeanor; and did stay a term on one count pursuant to section 654. The total sentence imposed was 31 years four months in prison.

In conclusion, the trial court stated that Sanders’s life “is indeed a tragedy” but “what I cannot do is excuse this conduct because of that history. I’m not allowed to legally, nor would it be appropriate on the facts given the danger that he subjected those women to and the risk of death or serious bodily injury he subjected them to and officers and others in his flight from the scene. It is appropriate to impose that sentence given the seriousness of the crime.”

Sanders contends Billingsley supports a remand in his case for the trial court to exercise informed discretion after the passage of Senate Bill No. 620. He is mistaken. In Billingsley, the appellate court found the trial court did not clearly indicate it would not have exercised discretion to strike a firearm enhancement if it had such discretion and held remand was appropriate under those circumstances. (Billingsley, supra, 22 Cal.App.5th at p. 1081.) The trial court in Billingsley imposed the mitigated term for attempted murder, noted the “facts of the ‘case could have been a lot worse,’ ” and expressed concern about the consequences of the sentence on the defendant. (Id. at pp. 1078, 1081.) Under these circumstances, the appellate court concluded there was no unequivocal indication by the trial court whether it would strike the firearm enhancement if it had the discretion. (Id. at p. 1081.)

In People v. Chavez (2018) 22 Cal.App.5th 663 (Chavez), the trial court imposed a mitigated term for the substantive offense and made no statement at sentencing indicating it would have imposed the firearm enhancement even if it had the discretion to strike or dismiss the enhancement. (Id. at p. 713.) The appellate court concluded remand was appropriate for the trial court to exercise its discretion to impose or strike the firearm enhancement. (Id. at p. 714.)

Unlike Billingsley and Chavez, here, it is clear from the record the trial court carefully considered the sentence to be imposed and imposed a total sentence it felt was appropriate for the circumstances of the case, including exercising its discretion to impose an aggravated term on the principal count and consecutive terms on the subordinate counts. We find nothing equivocal about the trial court’s comments at sentencing regarding imposition of the section 12022.53, subdivision (c), enhancement or the total sentence.

“[I]f ‘the record shows “that the trial court would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required.’ ” (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) Here, the trial court considered the serious nature of the crimes committed by Sanders, his criminal history, imposed the aggravated term on the principal offense, and imposed consecutive terms on subordinate counts, all factors germane to assessing whether a remand is required and all factors indicating a remand is unnecessary. (Id. at p. 427.) Coupled with the trial court’s clear statement of intent that it would not strike the section 12022.53, subdivision (c), enhancement even if it had discretion, the exercise of discretion to impose the aggravated term and consecutive terms, and the careful and deliberate fashioning of the overall total sentence, we conclude remand would be an idle act. (People v. McDaniels, at p. 425.)

DISPOSITION

The judgment is affirmed.