People v. Santiago CA2/6 ( 2022 )

Filed 6/13/22 P. v. Santiago CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B317240
(Super. Ct. No. BF169645)
Plaintiff and Respondent, (Kern County)
v.
THOMAS SANTIAGO,
Defendant and Appellant.
Thomas Santiago appeals a judgment following his
conviction of second degree murder (Pen. Code, §§ 187, 189)1
(count 1) and assault likely to produce great bodily injury by an
inmate serving a life sentence that results in death (§ 4500)
(count 2). In a bifurcated proceeding, the trial court found the
allegation that Santiago suffered a prior conviction for attempted
murder was true. He was sentenced to life without the possibility
All further statutory references are to the Penal Code
1
unless otherwise stated.
of parole on count 2 and a 30-years-to-life sentence on count 1
that was stayed until the completion of the sentence on count 2.
We conclude, among other things, that Santiago has not
shown that his trial counsel provided ineffective assistance of
counsel. We affirm.
FACTS
On February 12, 2016, Santiago was a state prisoner at the
California Correctional Institution at Tehachapi. He shared a
prison cell with inmate Miguel Alejo. Prison Correctional
Officers Christina Holcomb and Edward Knickerbocker were
assigned to the floor where that cell was located. The officers
heard a “grrr or groan” coming from the cell block. After
investigating the location of that sound, Holcomb went to
Santiago’s cell and saw Santiago “on top of” Alejo. Alejo was on
his back, Santiago was on top of him, and they were “belly to
belly.”
Alejo’s feet “were limp.” Santiago’s movements showed “a
form of aggression” and his “muscles were tight.” The officers
ordered them to stop. Santiago did not respond to that order.
Alejo was not moving.
Santiago’s body position was “consistent with . . . somebody
strangling someone or squeezing some part of [Alejo’s] upper
body.” Santiago did not respond to the officers’ orders to get off of
Alejo. The officers twice used pepper spray to stop Santiago.
Santiago did not respond and did not stop his attack on Alejo.
Knickerbocker struck Santiago twice with his baton before
Santiago got off of Alejo. A search of Santiago revealed he
possessed bindles of methamphetamine.
Alejo was transported to a hospital where he died. An
examination of his body showed “signs of trauma to the throat
2
skin due to at least in part a manual strangulation.” He had
“damage to the pharynx that occurs in classic textbook
compression of the throat.” The cause of death was due to “neck
compressions” and “manual strangulations.”
Holcomb testified that she did not see “any injuries” on
Santiago. Hollis Bennett, a registered nurse at the prison,
testified Santiago had been exposed to pepper spray. Bennett did
not observe any injuries on Santiago.
Shaun Robinson, a prisoner who knew Santiago, testified
that he heard Santiago tell another prisoner, “I dusted my celly.”
That meant he killed his cellmate. Santiago said, “I choked him
out.” He added, “Someone wasn’t paying his bills. I got tired of
it. That’s it.”
On another occasion, Santiago said, “I dusted Huero.”
Huero was the nickname for Alejo. Santiago said he “[c]hoked
Huero out.” Robinson asked Santiago, “[W]hat happened?”
Santiago responded, “He wasn’t paying his bills. I got tired of it.”
After a trial by jury, Santiago was found not guilty of first
degree murder, guilty of second degree murder, and he was
convicted of violating section 4500.
The Pre-Trial Stipulation
Under the charged offense in count 2 (§ 4500), one fact to be
proven at trial is whether the defendant was serving a life
sentence at the time he committed an assault in prison.
(CALCRIM No. 2720.) At an in limine hearing, Santiago’s
counsel expressed concern about the jury making a factual
finding on the life sentence issue. He preferred to resolve that
element by stipulation. He said that “we could remove that from
instructing the jury and just make this strictly a homicide case.”
3
Santiago’s counsel and the prosecutor ultimately entered
into a stipulation that was read to the jury. It provided, “[T]he
People and the defense stipulate that at the time of the charged
incident, the defendant, born on August 15th, 1980, was serving
25 years to life, plus six years, for attempted murder . . . .”
DISCUSSION
Ineffective Assistance of Counsel
Santiago contends his trial counsel provided ineffective
assistance by entering into a stipulation that he (Santiago) was
serving a life sentence for attempted murder. He claims counsel
failed to take steps “to prevent the jury from learning of the prior
conviction of attempted murder.”
To establish ineffective assistance of counsel, 1) the
attorney’s performance must fall below the objective standards of
reasonable representation by competent counsel, and 2) counsel’s
actions must result in the type of prejudice that impacts the
outcome of the case and undermines the constitutional reliability
of the judgment. (Strickland v. Washington (1984) 466 U.S. 668,
688, 694; In re Marquez (1992) 1 Cal.4th 584, 603.) “A reviewing
court will indulge in a presumption that counsel’s performance
fell within the wide range of professional competence and that
counsel’s actions and inactions can be explained as a matter of
sound trial strategy.” (People v. Carter (2003) 30 Cal.4th 1166,
1211.) It is the defendant’s burden on appeal to show
constitutionally ineffective assistance of counsel. (Ibid.) 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
4
appeal must be rejected.’ ” (People v. Mendoza Tello (1997) 15
Cal.4th 264, 266.)
Santiago contends by making this stipulation his attorney
neglected the duty to prevent the jury from hearing prejudicial
information about his prior attempted murder conviction.
There are reasonable justifications for counsel’s actions.
Santiago highlights his counsel’s decision to make the
stipulation. But as the People note, the stipulation was related to
counsel’s larger trial strategy given the nature of the charges.
Courts must give “great deference to the tactical decisions of trial
counsel.” (In re Marquez, supra, 1 Cal.4th at p. 603.)
Here Santiago was charged with violating section 4500.
Section 4500 provides, in relevant part, “Every person while
undergoing a life sentence, who is sentenced to state prison within
this state, and who, with malice aforethought, commits an assault
upon the person of another with a deadly weapon or instrument,
or by any means of force likely to produce great bodily injury is
punishable with death or life imprisonment without possibility of
parole.” (Italics added.)
For this offense the trial court, using the standard
CALCRIM No. 2720 jury instruction, would have to instruct
jurors that they had to find that one element of the crime was
that the defendant had been “sentenced to both a specific term of
years and a maximum term of life in state prison.” Santiago’s
counsel could reasonably be concerned that jurors hearing this
might assume that because he was serving a life sentence he had
committed murder. The stipulation: 1) removed the possibility
that jurors would consider Santiago as a convicted murderer in a
murder case, and 2) reduced the possibility of undue juror
speculation about what crime he must have committed to receive
5
the “maximum” sentence. The stipulation also revealed
unfavorable information. But defense counsel often have to make
tactical decisions to reveal such information to “make the best of
a bad situation.” (People v. Hinton (2006) 37 Cal.4th 839, 877;
People v. Freeman (1994) 8 Cal.4th 450, 498.)
Santiago claims that instead of entering into this
stipulation, counsel should have objected to the introduction of
this “prior bad acts” evidence “under Evidence Code section 1101,
subdivision (a).” That would be a proper objection in most cases.
But here the section 4500 offense essentially requires evidence of
a prior bad act as an element of the crime as it requires proof the
defendant is serving a life sentence. (People v. Superior Court
(Bell) (2002) 99 Cal.App.4th 1334, 1341.)
Santiago claims his counsel should have let the People
introduce evidence to prove the life sentence element and object if
it included the prior conviction. But counsel did not want jurors
to consider such trial evidence because it would draw their
attention away from the charged crimes. As the People note,
“Counsel . . . could have reasonably preferred a short, dry
stipulation that included appellant’s attempted murder
conviction over admission of the evidence at trial . . . .”
Santiago suggests: 1) it was easy to separate the life
sentence element from the attempted murder conviction so that
the sentence would be admitted and the conviction excluded; and
2) counsel was negligent for not attempting to achieve that result.
But Santiago has not shown from this record that it was so easy
or that counsel failed to make this attempt. At the in limine
hearing, counsel tried to obtain a stipulation on the life sentence
element alone. But the prosecutor would not agree. She claimed
she had to introduce the “969b packet” with the conviction, and
6
the conviction was a necessary part of the proof on the life
sentence element. The trial court agreed with the prosecutor.
The court said, “[T]he [district attorney is] pretty much in the
driver’s seat how much they’re willing to stipulate on these
particular cases.” Santiago assumes his counsel had the ability
to have the trial court require the prosecutor to stipulate solely to
the fact that he was serving a life sentence. But a “trial court
cannot compel a prosecutor to accept a stipulation that would
deprive the state’s case of its evidentiary persuasiveness.”
(People v. Rogers (2013) 57 Cal.4th 296, 329.)
Santiago contends he is “perplexed” by his counsel’s trial
strategy. But the record reflects that counsel did not decide this
strategy alone. At the in limine hearing, counsel represented
that he would be acting with Santiago’s consent. He said he
would agree to a stipulation “if my client is willing to stipulate.”
Santiago cannot credibly attack the validity of a strategy that he
agreed with at trial. (People v. Hines (1997) 15 Cal.4th 997,
1040.) The mere fact that counsel could have chosen a different
procedural path does not mandate an ineffective assistance
finding. (People v. Jennings (1991) 53 Cal.3d 334, 379.) Santiago
must overcome the presumption that his counsel “made all
significant decisions in the exercise of reasonable professional
judgment.” (Strickland v. Washington, supra, 466 U.S. at p. 690.)
His current disagreement with the trial strategy does not, by
itself, overcome the “heavy measure of deference” we must give
“to counsel’s judgments.” (Id. at p. 691.) Counsel’s wide latitude
to make difficult tactical choices cannot be judged on a 20/20
hindsight standard. (People v. Ledesma (1987) 43 Cal.3d 171,
216-217.)
7
But even had Santiago shown his counsel’s actions fell
below the objective standard of reasonable representation, he still
must show counsel’s performance was prejudicial to the outcome.
(Strickland v. Washington, supra, 466 U.S. at pp. 688, 694.) But
that is not the case here.
First, the trial court took precautions to make sure jurors
would not consider the attempted murder conviction in deciding
Santiago’s conduct on the charged offenses. The court instructed
the jury, “The stipulation regarding the defendant’s prior
criminal conviction can only be used to establish that he was
serving a life sentence on February 12th, 2016, and may not be
used for any other purpose.” We must presume the jury followed
that instruction. (People v. Gonzales (2011) 51 Cal.4th 894, 940.)
Second, there was overwhelming evidence of Santiago’s
guilt. Santiago attacked Alejo in his cell. He was on top of his
victim and his body was positioned in a manner consistent with
strangling or squeezing Alejo’s upper body. Despite the presence
and attempted intervention by the guards, Santiago continued to
repeatedly attack Alejo, inflicting fatal injuries. Alejo died of
manual strangulation. After the attack, Santiago made the
highly incriminating admissions that he killed Alejo by choking
him because he “wasn’t paying his bills.”
Instructional Error and Ineffective Assistance
Santiago contends that his counsel’s stipulation resulted in
the trial court having to give an “ill-advised” and confusing
modification of the standard CALCRIM No. 3103 instruction.
That instruction involves the People’s burden of proof on a
defendant’s prior conviction. He claims the court’s modification
of this instruction focused the jury on his prior conviction for
8
attempted murder and, when coupled with his counsel’s failure to
object, it was prejudicial.
The trial court orally instructed jurors, in relevant part,
“One of the things that you must do is determine . . . the nature
of the sentence that the defendant was serving. . . . If you find
that the defendant was previously convicted of a crime, the
People must also prove that the defendant was sentenced to an
indeterminate sentence of life and a determinate sentence of
years. That’s the requirement that they need to prove on this.
One, that there was a prior conviction and that it was a
conviction that carried this sort of sentence. The People have the
burden of proving this allegation beyond a reasonable doubt. If
the People have not met this burden, you must find that this
allegation has not been met. And that goes as to Count 2.
Because Count 2 refers specifically has an element, that is the
status of the defendant serving a particular type of sentence.”
(Italics added.)
The stipulation and the CALCRIM No. 2720 instruction on
section 4500 provided adequate guidance for the jury. Because
those CALCRIM No. 2720 instructions on the charged offense
were clear, we presume that jurors would easily understand them
and follow them. (People v. Gonzales, supra, 51 Cal.4th at
p. 940.)
The trial court’s decision to also use the CALCRIM No.
3103 instruction on proof of prior crimes and its references to
People’s burden of proof on Santiago’s prior conviction were not
necessary. The alleged instructional error of providing such
surplus language, however, “ ‘did not “vitiat[e]” ’ ” the jury’s
findings because jurors were properly instructed on all the
required elements of the charged offenses. (People v. Merritt
9
(2017) 2 Cal.5th 819, 826; People v. Cole (2004) 33 Cal.4th 1158,
1208; People v. Cain (1995) 10 Cal.4th 1, 36 [surplus language
would not mislead jurors who were otherwise properly instructed
on the charged offenses]; People v. Watson (1956) 46 Cal.2d 818,
832.) There is no showing that had the court instructed the jury
without the language Santiago highlights, there would be any
reasonable probability of a different outcome. (People v. Flood
(1998) 18 Cal.4th 470, 490.)
Moreover, as the People note, if this added language was
prejudicial, it was prejudicial to the prosecutor, not the defense.
It substantially increased the People’s burden of proof on the
section 4500 life sentence element even though both parties had
already stipulated that Santiago had been convicted of the prior
offense that subjected him to a life sentence. If anything, the
possibility that the prosecution’s burden was increased benefited
Santiago. Santiago’s counsel could not therefore be faulted for
not objecting. (People v. Maury (2003) 30 Cal.4th 342, 421 [a
defendant cannot “complain” about a jury instruction that is
“unduly favorable to defendant”].) In addition, any error in
giving this instruction was harmless given the compelling
evidence of Santiago’s guilt. (People v. Cole, supra, 33 Cal.4th at
p. 1208.)
After reviewing all of Santiago’s contentions, we conclude
he has not shown grounds for reversal.
10
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.
11
John D. Oglesby, Judge
Superior Court County of Kern
______________________________
Kyle Gee, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Lance
E. Winters, Chief Assistant Attorney General, Michael P. Farrell,
Assistant Attorney General, Michael A. Canzoneri and Eric L.
Christoffersen, Deputy Attorneys General, for Plaintiff and
Respondent.
12