People v. Green CA2/4 ( 2015 )

Filed 1/7/15 P. v. Green CA2/4
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B246518
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA062567)
v.
BRIAN GREEN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Cynthia L. Ulfig, Judge. Affirmed as modified.
Lynne S. Coffin, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Jonathan J. Kline
and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
This case arises out of a racially-motivated attack on Thomas Johnson by
defendant Brian Clay Green, Gunnar Stine and Jacob Gurfinkiel.1 The jury
convicted defendant of attempted murder (§§ 664/187, subd. (a)), assault with a
deadly weapon or by force likely to cause great bodily injury (§ 245, subd. (a)(1)),
and making criminal threats (§ 422).2 In regard to the attempted murder
conviction, the jury found true the allegations that defendant personally inflicted
great bodily injury (§ 12022.7, subd. (a)) and that the offense was a hate crime
committed in concert with others (§ 422.75, subd. (b)).3 In regard to the assault
conviction, the jury found true the allegations that defendant personally used a
deadly weapon, a knife (§ 12022, subd. (b)(1)); that he personally inflicted great
bodily injury (§ 12022.7, subd. (a)), and that the offense was a hate crime
committed in concert with others (§ 422.75, subd. (b)). In regard to the criminal
threats conviction, the jury found true the allegations that defendant personally
used a deadly weapon, a knife (§ 12022, subd. (b)(1)) and that the offense was a
hate crime committed in concert with others (§ 422.75, subd. (b)).
After the jury rendered its verdicts, a bench trial was conducted in which the
trial court found that defendant had suffered two prior serious felony convictions
within the meaning of the Three Strikes law (§§ 667, subd. (a)(1), 667, subds. (b)-
(i), 1170.12, subds. (a)-(d)) and section 667, subdivision (a)(1). The trial court
1
Stine and Gurfinkiel were charged as codefendants but were not tried with
defendant.
2
All statutory references are to the Penal Code.
3
The jury found “not true” the allegation that defendant personally used a
dangerous weapon (a knife) during the commission of the attempted murder.
2
sentenced defendant to an aggregate term of 125 years plus three consecutive life
terms.
In this appeal, defendant raises three claims of instructional error: (1) the
trial court erred in failing to instruct on the principles of self-defense, defense of
others and mutual combat; (2) the trial had a sua sponte duty to instruct on the
lesser included offense of attempted voluntary manslaughter; and (3) the trial court
erred in rejecting defense counsel’s request for the unanimity instruction. Next,
defendant contends that his sentence violates section 654. Lastly, defendant
contends that trial counsel provided ineffective assistance because he failed to
object to the admission of defendant’s pretrial interview with two detectives, an
interview that defendant claims, for the first time on appeal, was coerced. We find
no prejudicial error and, other than correcting a minor error in the award of pre-
sentence custody credit, affirm the judgment.
STATEMENT OF FACTS
A. Factual Overview
The crimes were committed around midnight on February 16, 2008.
Johnson, the victim, is black. Johnson was accompanied by his roommate Daniel
Boston, who is white, when he (Johnson) was attacked by defendant, Stine and
Gurfinkiel. During the attack, Johnson was punched, kicked, stabbed and
threatened as the men yelled multiple racist epithets. Defendant is a member of the
SFV Peckerwoods, a white-supremacist gang in the San Fernando Valley. Stine
and Gurfinkiel are members of the Chatsworth Skinheads, another white-
supremacist gang. The two gangs share a hatred of African-Americans. It is
common for the two gangs to commit crimes together.
On the day of the attack, Johnson was 26 years old, five feet six inches tall
and weighed 145 pounds. Boston was between 19 and 21 years old, weighed 130
3
to 135 pounds and was five feet, eight or nine inches tall.4 Defendant was 27 years
old. He weighed 220 pounds and was five feet 11 inches tall. Stine was 17 years
old, five feet eight inches tall, and weighed between 130 to 140 pounds. Gurfinkiel
was almost 18 years old, five feet, seven inches tall, and weighed 140 pounds.
Defendant testified at trial and denied attacking Johnson. Defendant claimed
that Stine assaulted Johnson and that he (defendant) entered the struggle to stop it.
B. The Prosecution’s Case-in-Chief
1. Johnson’s Testimony
At approximately midnight on the evening of February 16, 2008, Johnson
and Boston were walking on Winnetka Avenue in the San Fernando Valley,
heading towards their home. Johnson and Boston were on the opposite side of the
street from defendant, Stine and Gurfinkiel. Johnson heard a man say, in an
“aggressive, angry tone[,]” “There is a fucking nigger over there.” Johnson
ignored the statement and continued to walk with Boston as a man stated: “What
are you doing over here, nigger[?].” To get home, Johnson and Boston needed to
cross the street. To minimize the potential of any confrontation, they crossed to
the north of the three men. Everyone was now on the same side of the street.
Johnson “heard footsteps coming towards [him], running towards [him] at a
fast pace.” Johnson turned around and Stine threw a “knock-out- punch” at him.
Johnson ducked and Stine’s punch “missed.” Johnson testified: “I kind of went
back and I hit him [Stine] and he fell to the ground. . . . I kind of just put my hand
on his chest or, like, upper neck area and I kneeled on the ground, [and] was asking
him if he knew me or what his problem was.” (When Johnson first turned around,
he saw defendant and Gurfinkiel standing next to a car.)
4
Boston did not testify at trial.
4
Johnson knelt with one knee on the ground and used one arm to try “to hold
[Stine] in place.” Suddenly, defendant came up and kicked Johnson “pretty hard”
on the left side of his face. Defendant tried to kick Johnson again but Johnson used
his “arm to sweep [defendant’s] leg away.” Johnson looked up at defendant and
said: “Are you guys going to jump me now or whatever?” Defendant came
around to Johnson’s back, put his arm around him and pointed a knife within one
or two inches of Johnson’s eyes. Defendant said “Fuck you, nigger” and told
Johnson that if he did not “get off his friend [Stine], he [was] going to cut [his]
fucking throat.” Johnson, believing his life was in danger, pushed defendant’s
hand away, jumped up, and started boxing with defendant. Stine stood up and
joined defendant in fighting Johnson. Johnson punched Stine in the face.
Gurfinkiel ran toward Johnson and joined in the attack. Johnson hit
Gurfinkiel before Gurfinkiel could hit him. Gurfinkiel said: “Fucking nigger[] hit
me in the face.” Defendant, Stine, and Gurfinkiel formed a circle around Johnson,
and “operat[ing] as a team,” hit him. Defendant was behind Johnson most of the
time as the three men punched him. Johnson tried to get out of the circle but
defendant and Stine pushed him back.
At one point, Johnson saw that he was bleeding “everywhere.” Johnson
“kind of stopped” fighting and, accompanied by Boston, “rush[ed]” back to their
home. As he left the scene, Johnson heard bottles breaking. One of his three
assailants stated: “It’s time for some white power on this motherfucker” and “Heil
Hitler.”
Johnson and Boston returned home and contacted the paramedics. Johnson
was transported to the hospital. He had been stabbed twice, once in his lower back
and once in his upper back. The latter stab punctured his right lung and would
have been fatal if he had not quickly received medical treatment. Johnson
5
underwent surgery and was hospitalized for several weeks. In addition, his vision
“is worse in [his] left eye than it is in [the] right eye.”
Boston did not help Johnson during the attack. During the assault, one of
the three men called Boston “a fucking nigger lover.”
2. Testimony from Two Eyewitnesses
Shortly before their attack on Johnson, defendant, Gurfinkiel and Stine had
been at a party. They, along with three young women, left the party and drove to
Gurfinkiel’s home. It was at that location that defendant and his accomplices
attacked Johnson. At trial, two of the women, Kirsten Marlow and Samantha
Parker, testified for the People.
a. Marlow’s Testimony
Marlow testified that the group arrived by car at Gurfinkiel’s home. Marlow
saw Johnson and Boston walking in their direction on the opposite side of the
street. Everyone except Stine exited the car. Defendant first said: “If you yell
nigger, [Stine will] come out of the car.” and then he yelled “Nigger.” As Johnson
and Boston crossed the street in his direction, Stine left the car and yelled: “What
the hell are you staring at, you dumb nigger?” Stine ran towards Johnson and
“[t]hat’s when the fight started breaking out.” Johnson and Stine were “fighting on
the ground,” “[t]hey were all just in a fight” for a “few minutes.” Johnson did not
have any weapon in his hand during the fight. Defendant approached the fight and
“kicked [Johnson] in the head.” At some point, Gurfinkiel joined the fight.
According to Marlow, Johnson hit Gurfinkiel “for self-defense.” Marlow did not
see who stabbed Johnson.
6
Eventually, the three men, Marlow and Parker retreated to Gurfinkiel’s
home. Defendant and Stine each had a bloody knife. Defendant told the group:
“Look what I did. I stabbed the nigger.”
Initially, Marlow did not speak with the police about the events. She
“fear[ed]” for her “life” because defendant, Stine and Gurfinkiel were white
supremacists.
b. Parker’s Testimony
Parker testified that she, Marlow and another women had been at a party
with defendant, Gurfinkiel and Stine. The men had been drinking. The six of
them left by car to return to Gurfinkiel’s home. When they arrived, everyone left
the car except for Stine. Defendant told the group that he knew how to get Stine
out of the car. Defendant then stated: “There is a fucking nigger.” Marlow saw
Johnson and Boston walking on the other side of the street. Stine left the car and
pursued Johnson. As Stine approached Johnson, Stine made a Nazi salute and
loudly said: “Nigger” and “White Power.” At the same time, defendant shouted
“White Power.”
When Stine reached Johnson, Stine threw the first blow and “[t]hey started
fighting.” Defendant joined the fight as Johnson and Stine “were wrestling on the
ground.” Defendant kicked Johnson “pretty hard” in the face. Soon, Gurfinkiel
joined the fight, “yelling out racial stuff.” The three men “piled on [Johnson],” “all
attacking [him] at the same time.” “Towards the very end of the fight,” Gurfinkiel
gave a Nazi salute. The fight ended when Johnson, who was bleeding, “[got] up
and [left]” with Boston. As Johnson was “walking [away] real quick,” Gurfinkiel
walked towards him but defendant held him back. Marlow did not see who
stabbed Johnson.
7
The three men and the women went to Gurfinkiel’s home. Defendant
showed Parker a bloody knife and said: “I stabbed a fucking nigger.” Parker saw
that Stine also had a knife.
C. The Defense Case
1. Defendant’s Testimony
Defendant testified at trial on his own behalf as follows.
He and the others arrived by car at Gurfinkiel’s home. He (defendant) was
intoxicated and Stine “was drunk.” Defendant pulled Stine out of the car. Johnson
and Boston walked near them on the other side of the street. Gurfinkiel yelled:
“What the fuck are you doing?” Johnson and Boston crossed the street
immediately in front of their car. From defendant’s point of view, Johnson became
the aggressor at this point. Defendant explained: “If we say something to him and
he doesn’t want to engage or isn’t involved in it, why didn’t he just keep walking
. . . instead of crossing the street to where we were at in front of us?”
Stine approached Johnson and Boston. Stine started “talking smack to
them[5]; and they [Johnson and Boston] started talking smack back, and [Johnson]
threw a beer bottle and then they started fighting.” (The bottle did not hit anyone.)
Stine and Johnson punched each other and fell to the ground where they
continued to fight. Johnson “was straddling [Stine], punching [him] in the head
and torso area.” Stine was trying to fight back. Meanwhile, Gurfinkiel “was
talking trash” with Boston.
At that point, Marlow and Parker were “yelling and screaming” and
Gurfinkiel’s mother came out of her home “and was yelling at [defendant] that
5
Defendant explained that Stine said something along the lines of “What you want,
mother fucker. What are you doing, mother [fucker].”
8
they were fighting, to stop them.” (Italics added.) Defendant told Marlow, Parker
and Gurfinkiel’s mother to calm down. After the women “had calmed down
some,” defendant approached “and tried to pull [Johnson] off the top of [Stine].”
Defendant testified that he “was trying to break up the fight because they were
drunk.” He “was trying to stop the altercation and incident so that nobody got in
trouble.” Defendant grabbed “Johnson by his shoulders to pull him off” of Stine
but he (defendant) slipped on the wet grass and fell. Johnson and defendant were
soon on their feet. Stine remained on the ground “a little bit longer” “because he
was drunk.” Defendant told Johnson to “just, get the fuck out of here.”
Defendant and Johnson “kind of squared off” but then Gurfinkiel “came
back up” behind Johnson and “either pushed him or punched him.” Stine stood up
and attempted to join the fight. Defendant grabbed Stine, “wrapped him up like a
bear[,] . . . wrapped [his] arms around [Stine], holding him” and pulled him
towards Gurfinkiel’s home in an effort to stop Stine from fighting again. Stine
“jerked away” and “went after” Boston who was walking away. Stine yelled to
Boston: “Come back here, mother fucker; it’s white power.” Boston ran away so
Stine rejoined the fight between Johnson and Gurfinkiel. Defendant “yell[ed] at
them to get the fuck in the house.” Boston started walking back towards the melee.
Defendant testified that at that moment, he “grabbed [Stine] again and
[Gurfinkiel’s] mother grabbed [Gurfinkiel], and we pulled them back” and Johnson
“walked off.”
Defendant did not “recall ever kicking [Johnson] in his face” but conceded
that when they fell down, he “may have” “kicked him in his shoulder.” Defendant
claimed that “there wasn’t a time all three of us [defendant, Stine and Johnson]
were fighting. I’m trying to break up the fight.” (Italics added.)
9
Defendant denied having a knife, having threatened to cut Johnson’s throat,
having stabbed Johnson, having seen anyone stab Johnson, or having said “nigger”
during the incident.
Defendant claimed that after the fight had ended, he saw Stine’s bloody
knife on the sidewalk. Defendant picked up the knife and took it with him to
Gurfinkiel’s home. Defendant asked Stine if he (Stine) had stabbed Johnson.
Stine replied “that he just cut himself.”
In regard to gang affiliation, defendant denied being a member of the SFV
Peckerwoods but testified that he believed in “White Power” which he defined as
“procreation,” “[w]hite people with white people[,]” “sticking with my own.”
2. Impeachment of Defendant Through His 2008 Interview With the Police
The police arrested defendant on November 12, 2008. That day, Detectives
Fajardo and Doerbecker interviewed him. The interview was tape recorded.
During cross-examination of defendant, the prosecutor sought to enter the
interview into evidence.6 The defense did not object.7 The tape recording was
played for the jury and a transcript of the interview was entered into evidence.8
As will be explained in more detail when we discuss defendant’s contention
that trial counsel provided ineffective assistance because he failed to object to the
introduction of the interview, defendant’s statements to the police were, in large
6
Defendant testified that he had reviewed that interview to prepare his testimony.
7
As stated in our introductory paragraphs, defendant contends that he received
ineffective assistance of counsel because his attorney failed to move to exclude the
interview on the basis it was coerced. The facts relevant to that contention will be set
forth later.
8
During deliberations, the jury asked to listen again to the tape.
10
part, consistent with his trial testimony. He denied attacking or stabbing Johnson
and claimed he entered the fight only to stop it.
However, some of his statements were inconsistent with his trial testimony.
Defendant did not tell the detectives that Johnson had been the aggressor, either by
crossing the street, talking “smack,” or throwing a beer bottle and, at one point,
defendant conceded to the detectives that Johnson fought only in self-defense.
While defendant testified that he did not know who stabbed Johnson, defendant
repeatedly told the detectives that Stine had stabbed Johnson and that he
(defendant) knew where to find the knife Stine had used.
In addition, defendant, in the interview, set forth a more racially charged
context for the fight and described a more aggressive Stine than he had in his trial
testimony. Defendant told the detectives that the incident started when Stine called
Johnson a “fucken nigger” and “ran up from the car[], . . . swinging at [Johnson]
[whereupon the two men] started fighting.”
Defendant also gave the detectives a different chronology of the latter part of
the struggle and his role in it. As opposed to his trial testimony in which he
claimed that only Stine was fighting with Johnson, defendant told the detectives
that Johnson was “beating [Stine] up and then [Gurfinkiel] ran over and started
fighting with [Johnson].” Defendant “ran over there” to pull Stine and Gurfinkiel
off of Johnson because “they had gained the upper hand again.”
DISCUSSION
A. FAILURE TO INSTRUCT ON SELF-DEFENSE, DEFENSE OF
OTHERS AND MUTUAL COMBAT
Defendant contends that the trial court committed prejudicial error because it
failed sua sponte to instruct on the theories of self-defense, defense of others and
mutual combat. We disagree.
11
1. Factual Background
Before closing argument, the trial court instructed the jury. The court read,
among other instructions, CALJIC No. 9.00 which defines assault. The last
paragraph of that instruction reads: “A willful application of physical force upon
the person of another is not unlawful when done in self-defense or in defense of
others. The People have the burden to prove that the application of physical force
was not in lawful self-defense or defense of others. If you have a reasonable doubt
that the application of physical force was unlawful, you must find the defendant
not guilty.”
After the trial court finished reading the instructions to the jury, the
prosecutor requested a sidebar conference. The following exchange occurred.
“[THE PROSECUTOR]: I believe that [the last paragraph in
CALJIC No. 9.00] is inapplicable here. Defense has not sought any
self-defense instructions and, in fact, there is a series of instructions in
the 5 section [of CALJIC] indicating that they shouldn’t be available
in this case. . . . I would ask it be stricken from the written copy. . . .
“THE COURT: [Defense counsel?]
“[DEFENSE COUNSEL]: Well, we heard testimony from the
defendant, defense of others.
“[THE PROSECUTOR]: Well, the thing is, though, that that is
a genuine defense that requires supplemental instructions that defense
counsel did not ask for and, in fact, it’s mutual combat. It’s contrived.
There was the failure to retreat from the fight. There was a whole
series of instructions that would have been relevant.
“[The last] paragraph [of CALJIC No. 9.00] is not merited
under these facts. . . . I think that putting it in front of the jury is
raising an issue that defense, so far, has not raised, and it would be
likely to lead to confusion if we have it in front of them.
12
“[DEFENSE COUNSEL]: Again, he [defendant] testified one
of the reasons that he got involved in this was to pull Mr. Johnson off
of Mr. Stine . . . because he was getting beat up.
“[THE PROSECUTOR]: But if defense intends to argue that
and wants to rely upon that paragraph, there is a whole series of
instructions which are actually not favorable to this defendant dealing
with mutual combat, contrived self-defense, et cetera. That paragraph
[in CALJIC No. 9.00] is not the way to do it.
“If defense counsel wants to litigate whether he can be allowed
to give other instructions, that’s a separate issue, but that paragraph
would need to be accompanied by those instructions and should not be
in front of the jury right now.
“[DEFENSE COUNSEL]: I think those other instructions are
sua sponte. . . .
“THE COURT: . . . We spent three days going over jury
instructions, and I asked both counsel numerous occasions if there
were any other instructions that were required or requested.
“And I specifically asked [defense counsel] twice if there were
any instructions that were being requested, and none were requested.[9]
“[DEFENSE COUNSEL]: I’m satisfied with the jury
instruction that we have here.
“[THE PROSECUTOR]: I think legally that argument is
unsupportable because that bracketed paragraph which one would . . .
have expected to have been stricken requires genuine instructions that
weren’t requested.
“I will submit on that, Your Honor.
9
The trial court’s recollection was correct. On three occasions, the court and the
parties discussed jury instructions. Twice, the court asked defense counsel if he had any
additional instructions he wanted the court to review. Each time, defense counsel replied
“no.”
13
“THE COURT: At this point in time, I am going to strike the
self-defense paragraph 9.00.
“And I guess we are going to just send the jury away and
litigate the other issues regarding the other instructions if defense is
seeking to add them at this point in time.
“[DEFENSE COUNSEL]: Well, I believe, even if that is
struck, I can argue to the jury that that fact itself of him pulling
someone away goes to his intent to commit a crime and is a specific
intent, also.
“THE COURT: So you are not going to argue self-defense,
then. Because if you are going to argue self-defense, we are going to
have the self-defense instructions, with which there are a series of
those.
“I know [the] People, obviously, can argue that it was contrived
and not legitimate self-defense; so they may or may not be given.
This is why I asked for jury instructions at the beginning of trial so we
are all on the same page and we don’t hold the jury up.
“[DEFENSE COUNSEL]: I understand.
“Then – I am still able to argue his act, however it may be
characterized on the issue of his specific intent.
“THE COURT: Of course. . . .
“[THE PROSECUTOR]: I think that’s legally not supportable
[for defense counsel to argue self-defense or defense of others]. The
thing I think defense counsel can argue is that the physical action of
the defendant was intended not to promote the fight, but to pull
someone out of it. But as to legally arguing it was defense of another,
if defense counsel starts to make that argument, I would be entitled to
a series of instructions which would invalidate that claim.
“[DEFENSE COUNSEL]: I will submit.
14
“THE COURT: . . . . I will strike [the last] paragraph [of
CALJIC No. 9.00] and . . . will just go with argument of counsel. We
won’t include the extra instructions because testimony of the
defendant seemed to be pretty clear that he was trying to break up the
fight that was happening.” (Italics added.)
Proceedings resumed in the jury’s presence. The trial court stated: “With
respect to the assault charge[,] the jurors are not to consider self-defense or defense
of others, so that paragraph will be stricken.” The trial court then reread CALJIC
No. 9.00 to the jury, omitting the paragraph set forth earlier. The court also struck
that paragraph from the written instruction submitted to the jury.
In closing argument, defense counsel urged, among other points, that
defendant lacked any criminal intent because “when you look at the totality of the
actions, according to [defendant], he tried to break up this fight.”
2. Discussion
Defendant contends that the trial court erred “by failing to instruct the jury
sua sponte on self defense/defense of others and mutual combat.”
The parties agree that “a defendant has a right to have the trial court, on its
own initiative, give a jury instruction on any affirmative defense for which the
record contains substantial evidence [citation] — evidence sufficient for a
reasonable jury to find in favor of defendant [citation] — unless the defense is
inconsistent with the defendant’s theory of the case [citation]. In determining
whether the evidence is sufficient to warrant a jury instruction, the trial court does
not determine the credibility of the defense evidence, but only whether ‘there was
evidence which, if believed by the jury, was sufficient to raise a reasonable doubt
. . . .’” (People v. Salas (2006) 37 Cal.4th 967, 982.) But if the evidence of the
15
purported defense(s) is minimal or insubstantial there is no duty to instruct on
them. (People v. Barnett (1998) 17 Cal.4th 1044, 1145.)
In this case, however, defendant misframes the issue as being whether the
trial court had a sua sponte duty to instruct upon self-defense, defense of others, or
mutual combat. As can be seen from the colloquy set forth above, the trial court
and the parties discussed whether these very instructions were warranted. The
court ultimately ruled that it would not submit the instructions “because testimony
of the defendant seemed to be pretty clear that he was trying to break up the fight
that was happening.” Thus, the issue is not whether the trial court had a sua sponte
duty to instruct but, instead, whether the trial court, once the issue of these
additional instructions had been brought to its attention, correctly ruled that the
record did not contain substantial evidence to support their submission. We
conclude that the trial court’s ruling was correct.
Self-defense or defense of others requires the defendant: (1) to reasonably
believe that bodily injury is about to be inflicted upon himself or a third person and
(2) to use the force reasonably necessary to prevent that imminent harm. (CALJIC
Nos. 5.30 & 5.32.) It is the prosecution’s burden to prove beyond a reasonable
doubt that the defendant did not act in exercise of one of those defenses. (See
CALJIC No. 9.00.) If the jury entertains a reasonable doubt whether the
defendant’s use of force was lawful, it must find the defendant not guilty. (Ibid.)
Here, nothing in the People’s case suggested that defendant acted in self-
defense or defense of others. Johnson’s testimony and the testimony of the two
eyewitnesses (Marlow and Parker) described, in detail, an unprovoked and vicious
attack fueled by racial hatred in which Johnson was the only individual who acted
in self-defense.
In the defense case, defendant never testified that he acted to defend either
Stine or himself. Instead, defendant, on multiple occasions, testified that the
16
reason he entered the fight between Stine and Johnson was to end it. Defendant
explained that he intervened after Gurfinkiel’s mother asked him to stop the fight.
Defendant testified that he “was trying to break up the fight because they were
drunk”; that he “was trying to stop the altercation and incident so that nobody got
in trouble”; and that he was “trying to break up the fight.” None of defendant’s
testimony supports his appellate argument that he “reasonably perceived Mr. Stine
to be in imminent danger” so that he acted first out of a desire to defend Stine and
later a desire to defend himself. Stated another way, defendant failed to present
substantial evidence that could persuade a reasonable jury to entertain a reasonable
doubt that he (defendant) acted lawfully, e. g., to defend Stine or himself. (See,
e.g., People v. Kanawyer (2003) 113 Cal.App.4th 1233, 1243.) The trial court
therefore did not err in declining to instruct on those defenses.10
Lastly, we reject defendant’s argument that the trial court erred in failing to
submit CALCRIM No. 3471, the pattern instruction about mutual combat. Mutual
combat “consists of fighting by mutual intention or consent, as most clearly
reflected in an express or implied agreement to fight.” (People v. Ross (2007) 155
Cal.App.4th 1033, 1046-1047.) CALCRIM No. 3471 sets forth the specific
actions that a person who engages in mutual combat must take before he can claim
self-defense: (1) he must actually and in good faith try to stop fighting; (2) he
must communicate to his opponent, by words or conduct, his intent to stop the
10
The trial court’s decision to delete the last paragraph to CALJIC No. 9.00 absent
the submission of other instructions was correct. The Use Note to CALJIC No. 9.00
states, in pertinent part: “The last bracketed paragraph should only be used where there is
a defense of self-defense and should be given with CALJIC No. 5.30 [defining self-
defense] and other appropriate instructions.” As alluded to by both the prosecutor and
the court, the potentially appropriate instructions included CALJIC Nos. 5.52 (“Self-
Defense--When Danger Ceases”), 5.53 (“Self-Defense Not an Excuse After Adversary
Disabled”), 5.54 (“Self-Defense by an Aggressor”), 5.55 (“Plea of Self-Defense May Not
Be Contrived”), and 5.56 (“Self-Defense—Participants in Mutual Combat”).
17
fight; and (3) he must give his opponent a chance to stop fighting. If a defendant’s
actions fulfill all of those requirements but the opponent continues to fight, then
the defendant has a right to act in self-defense.
In this appeal, defendant argues: “The fight was mutual combat when it
began because all testimony agreed that [the victim Johnson] crossed the street to
[defendant’s] and his friends’ location when it was not necessary for him to do so.
Thus, when the fight began and continued it was by implied consent or
agreement.” Based upon that characterization of the record, defendant contends
that the trial erred in not submitting an instruction about mutual combat. We are
not persuaded.
The trial court is required to instruct on mutual combat only if there is
substantial evidence from which the jury “could reasonably find that both
combatants actually consented or intended to fight before the claimed occasion for
self-defense arose.” (People v. Ross, supra, 155 Cal.App.4th at p. 1047.) The
singular fact that Johnson and Boston crossed the street (a lawful act) does not
constitute substantial evidence that Johnson agreed to engage in combat with
defendant or his accomplices. In a similar vein, defendant’s testimony that
Johnson threw a bottle that did not hit anyone does not constitute substantial
evidence from which a reasonable jury could find that Johnson agreed to fight.
Further, there was no absolutely no evidence that, after the fight began, defendant
(or Stine or Gurfinkiel for that matter) ever communicated to Johnson an intent to
end the fight. Thus, the predicate requirements for the instruction were not
supported by substantial evidence. In sum, the trial court properly found that the
record did not warrant an instruction on mutual combat.
18
B. FAILURE TO INSTRUCT SUA SPONTE ON ATTEMPTED
VOLUNTARY MANSLAUGHTER
Attempted voluntary manslaughter is a lesser included offense of attempted
murder. Defendant contends that the trial court had a sua sponte duty to instruct on
that offense based upon the theory that if he (defendant) did not act in “self-
defense, defense of another or in mutual combat, that he acted in the heat of
passion.”11 (Italics added.)
The crux of defendant’s contention is that there “was substantial evidence of
provocation” in that he “acted upon a sudden quarrel or in the heat of passion when
he attempted to assist . . . Stine.” In particular, defendant argues: “Regardless of
whether Stine approached Johnson, this approach did not occur until after Johnson
had intentionally crossed the street in front of Stine and [defendant]. Moreover, if
Johnson’s approach was not sufficient provocation, the ensuing fight surely was.”
This contention is not persuasive.
The actions of a victim (here, Johnson) can constitute legally adequate
provocation only if those actions are “‘sufficiently provocative that it would cause
an ordinary person of average disposition to act rashly or without due deliberation
and reflection. [Citations.] “Heat of passion arises when ‘at the time of the
[attempted] killing, the reason of the accused was obscured or disturbed by passion
to such an extent as would cause the ordinarily reasonable person of average
disposition to act rashly and without deliberation and reflection, and from such
11
During a reported discussion about jury instructions, the court asked defense
counsel: “Are you seeking any lessers with respect to any of the charges?” He replied:
“No.” The court then asked: “And you considered this in making your tactical
decision?” Defense counsel answered: “Yes.” However, the trial court’s duty to instruct
on a lesser included offense exists even when, as a matter of trial tactics, defense counsel
elects not to request the instruction. (People v. Barton (1995) 12 Cal.4th 186, 195;
People v. Elize (1999) 71 Cal.App.4th 605, 612-613.)
19
passion rather than from judgment.’”’” (People v. Manriquez (2005) 37 Cal.4th
547, 583-584.)
However, the trial court is not obligated to instruct about a lesser included
offense (here, attempted voluntary manslaughter) unless “‘there is “substantial
evidence” from which a rational jury could conclude that the defendant committed
the lesser offense, and that he is not guilty of the greater offense.’” (People v.
Whalen (2013) 56 Cal.4th 1, 68.) “‘“[T]he existence of ‘any evidence, no matter
how weak’ will not justify instructions on a lesser included offense.”’” (Ibid.)
In this case, the trial record does not contain substantial evidence of legally
adequate provocation. Contrary to what defendant suggests, Johnson and Boston’s
lawful decision to cross the street to the side where defendant and his companions
were standing does not constitute legally adequate provocation. That defendant
may have been offended by the action or found it provocative does not matter
because an ordinarily reasonable man would not have felt that way. “‘“[N]o
defendant may set up his own standard of conduct and justify or excuse himself
because in fact his passions were aroused, unless further the jury believe that the
facts and circumstances were sufficient to arouse the passions of the ordinarily
reasonable man.”’” (People v. Manriquez, supra, 37 Cal.4th at p. 584.)
In a similar vein, defendant’s claim that the subsequent struggle between
Johnson and Stine constitutes legally adequate provocation that caused him to join
the fight must fail. As explained above, there is no substantial evidence that
Johnson initiated the fight or that the fight was mutual combat. Instead, the record
contains substantial evidence that Johnson simply defended himself against a racist
attack that defendant had set in motion by taunting Stine with racist epithets.
These were not circumstances that would have caused a reasonable person to
respond rashly by joining the fight. “The focus is on the provocation—the
surrounding circumstances—and whether it was sufficient to cause a reasonable
20
person to act rashly. How the [defendant] responded . . . is not relevant to sudden
quarrel or heat of passion.” (People v. Najera (2006) 138 Cal.App.4th 212, 223.)
C. REJECTION OF THE UNANIMITY INSTRUCTION
Defendant contends that the trial court’s rejection of its request to submit
CALJIC No. 17.01, the standard unanimity instruction, constitutes prejudicial
error. We disagree.
1. Factual Background
On several occasions, defense counsel asked the trial court to submit
CALJIC No. 17.01 to the jury. He argued that because either defendant’s kick to
Johnson’s head or the stabbing of Johnson could form the basis of the assault or
attempted murder charge, it was imperative that the jury be instructed that it had to
agree which act constituted each crime.
The trial court rejected defense counsel’s request for two reasons. First, it
found that a unanimity instruction was not required because the People were
proceeding under multiple theories, one being that defendant was guilty because he
kicked the victim in the head and later stabbed him in the back and the other being
that defendant was guilty on a theory of aiding and abetting. Second, the trial court
relied upon the Use Note to CALJIC No. 17.01 that explains that the instruction
does not have to be given “where the two crimes are so closely connected in time
that they form part of one transaction.” The trial court explained that “from the
testimony I have heard[,] [it] is basically an ongoing fight and donnybrook that’s
taking place. It happened very quickly. [¶] And it’s not an incident where there is
a break-off in the acts.” The trial court concluded: “In light of the events that
transpired, the conduct engaged in by the defendant and his codefendants, as well
21
as the aiding and abetting theory proposed by the People, I do not think the jury
needs to have the unanimity instruction.”
The trial court, however, did submit CALJIC No. 17.02 that explained that
each count charged a distinct crime and that each count was to be decided
separately. In addition, the court submitted the pattern instructions about aiding
and abetting (CALJIC Nos. 3.00 (“Principals—Defined”), 3.01 (“Aiding and
Abetting—Defined”) and 3.02 (“Principals—Liability for Natural and Probable
Consequences”)). The last instruction explained the circumstances under which
defendant could be found liable for attempted murder based upon the theory that
the attempted murder was a natural and probable consequence of defendant’s
aiding and abetting the commission of an assault with a deadly weapon.
In closing argument, the prosecutor argued: “[T]here were a number of
things that the defendant did that could constitute felony assault, they can include
kicking, beating and stabbing. . . . It would be very, very reasonable for you to
[find that defendant’s] extremely hard kick to the left side of [Johnson’s] face
constitutes the type of felony assault that can result in GBI.” As for the attempted
murder charge, she argued: “There are three possibilities for convicting the
defendant of attempted murder. You may find that the defendant, himself, with his
own hands, tried to kill the victim [or] through his actions [that] he was actually
trying to contribute to killing the victim himself. [¶] You may also find that he
aided and abetted [Stine and Gurfinkiel] in the attempted murder of victim
Johnson. And then the third avenue for you to convict him is that he aided and
abetted assault with a deadly weapon either with a deadly weapon or in a way
which would produce great bodily injury and that the attempted murder was a
natural and probable consequence of that assault.” “For you to convict the
defendant of attempted murder, you do not need to know whether he did both stab
wounds or either one of them.” “If the 12 of you . . . decide that the defendant is
22
guilty of attempted murder, you do not have to agree as to the legal theory that gets
you there.” “You just need to agree that that’s the crime that was committed.”
2. Discussion
“The key to deciding whether to give the unanimity instruction lies in
considering its purpose. The jury must agree on a ‘particular crime’ [citation]; it
would be unacceptable if some jurors believed the defendant guilty of one crime
and other jurors believed [him] guilty of another. But unanimity as to exactly how
the crime was committed is not required. Thus, the unanimity instruction is
appropriate ‘when conviction on a single count could be based on two or more
discrete criminal events,’ but not ‘where multiple theories or acts may form the
basis of a guilty verdict on one discrete criminal event.’ [Citation.] In deciding
whether to give the instruction, the trial court must ask whether (1) there is a risk
the jury may divide on two discrete crimes and not agree on any particular crime,
or (2) the evidence merely presents the possibility the jury may divide, or be
uncertain, as to the exact way the defendant is guilty of a single discrete crime. In
the first situation, but not the second, it should give the unanimity instruction.”
(People v. Russo (2001) 25 Cal.4th 1124, 1134-1135.)
This case presents the second situation because the prosecutor properly
proceeded on multiple theories: defendant was the actual perpetrator of the assault
and attempted murder and defendant was liable for those offenses on an aiding and
abetting theory. In this situation, the jurors need not unanimously agree “‘whether
the defendant is an aider and abettor or a principal even when different evidence
and facts support each conclusion.’ [Citations.]” (People v. Jenkins (2000) 22
Cal.4th 900, 1026.) In other words, “as long as each juror is convinced beyond a
reasonable doubt that defendant is guilty of [the charged crime] as that offense is
defined by statute, it need not decide unanimously by which theory he is guilty.
23
[Citations.] . . . [¶] Not only is there no unanimity requirement as to the theory of
guilt, the individual jurors themselves need not choose among the theories, so long
as each is convinced of guilt.” (People v. Santamaria (1994) 8 Cal.4th 903, 918-
919.) It therefore follows that the trial court was not required to instruct the jury
that in order to find defendant guilty of either assault or attempted murder, it must
agree upon the act constituting each crime.
But even if we were to assume that the trial court erred in rejecting defense
counsel’s request for the unanimity instruction, the error would not have been
prejudicial.
The courts of appeal are divided as to the proper standard for determining
prejudice if the trial court erred in not submitting a unanimity instruction. (People
v. Matute (2002) 103 Cal.App.4th 1437, 1448-1449.) The majority of courts have
applied the standard from Chapman v. California (1967) 386 U.S. 18, 24. They
found that the error is of constitutional dimension and thus requires reversal unless
the error is harmless beyond a reasonable doubt. (People v. Hernandez (2013) 217
Cal.App.4th 559, 570.) Other cases apply the test from People v. Watson (1956)
46 Cal.2d 818, 836, finding reversible error only if “‘it is reasonably probable that
a result more favorable to the [defendant] would have been reached in the absence
of the error.’” (People v. Vargas (2001) 91 Cal.App.4th 506, 562.) We apply
Chapman and conclude that any error that may have occurred was harmless
beyond a reasonable doubt.
“Under Chapman, ‘where the record provides no rational basis, by way of
argument or evidence, for the jury to distinguish between the various acts, and the
jury must have believed beyond a reasonable doubt that [the] defendant committed
all acts if he committed any, the failure to give a unanimity instruction is
harmless.’ [Citation.] For example, where the defendant offered the same defense
to all criminal acts and ‘the jury’s verdict implies that it did not believe the only
24
defense offered,’ failure to give a unanimity instruction is harmless error.
[Citation.] . . . The error is also harmless ‘[w]here the record indicates the jury
resolved the basic credibility dispute against the defendant and therefore would
have convicted him of any of the various offenses shown by the evidence. . . .’
[Citation.]” (People v. Hernandez, supra, 217 Cal.App.4th at p. 577.)
Based upon those principles, we find that any error in not giving the
unanimity instruction was harmless beyond a reasonable doubt. The defense was
that defendant lacked any criminal intent. Although defendant conceded he had
joined the fight, he testified that he had done so solely to end it. Defendant denied
kicking Johnson in the face, denied threatening Johnson with a knife, denied
uttering any racial epithets, and denied doing anything except trying to stop the
fight.
The jury’s verdicts indicated that it rejected defendant’s theory of the case.
Or stated another way, it decided the credibility issue against him. “Given this
record, it is reasonable to conclude that the jury believed beyond a reasonable
doubt that [defendant] committed all acts if he committed any. Thus, the failure to
give the unanimity instruction was harmless beyond a reasonable doubt.
[Citations.]” (People v. Curry (2007) 158 Cal.App.4th 766, 784.)
D. SECTION 654
Defendant next contends that the trial court’s sentence violated section 654.
We disagree, finding substantial evidence supports the trial court’s sentencing
decision.
1. Factual Background
During the sentencing hearing, defense counsel stated: “I know that we
discussed this issue during trial when we had a discussion with regards to jury
25
instructions, I would like to reiterate the position that I had then that the offenses of
which [defendant] is convicted of in the present case did make up a single course
of continuous conduct, therefore, altering the sentencing on these three counts for
which he was convicted.”
The prosecutor did not respond to this point. However, her sentencing
memorandum, filed before the hearing, had urged a contrary conclusion and sought
imposition of three consecutive sentences.12
Before imposing sentence, the trial court ruled: “The court finds that each
crime was separate and distinct and that the defendant had time to reflect upon his
actions before continuing his course of conduct.”
The court sentenced defendant to three consecutive terms resulting in an
aggregate term of 125 years plus three consecutive life sentences. The specifics of
the court’s sentence are: (1) a sentence of 42 years to life on the attempted murder
conviction calculated as follows: the four-year high term plus a three-year term for
the great bodily injury finding plus a ten-year term for the section 667, subdivision
(a)(1) prior convictions plus 25 years to life under the Three Strikes law; (2) a
sentence of 43 years to life on the felonious assault conviction calculated as
follows: the four-year high term plus a three-year term for the great bodily injury
finding plus a one-year term for the personal use of a weapon finding plus a ten-
year term for the section 667, subdivision (a)(1) prior convictions plus 25 years to
life under the Three Strikes law; and a sentence of 40 years to life on the criminal
threats conviction calculated as follows: the four-year high term plus a one-year
12
The memorandum reads, in relevant part: “Although the crimes were all
committed against the same victim in a short span of time, each count of which he stands
convicted is a separate and distinct crime. Each crime was distinct and complete before
the commission of any other crime. Also, each crime had distinct intent and distinct
elements. Although the events in this case occurred rapidly, the defendant had time to
reflect upon his actions between the commission of the acts. [Citation.]”
26
term for the personal use of a weapon finding plus a ten-year term for the section
667, subdivision (a)(1) prior convictions plus 25 years to life under the Three
Strikes law.
2. Discussion
“‘Under section 654, “a course of conduct divisible in time, although
directed to one objective, may give rise to multiple violations and punishment.
[Citations.]’ [Citations.] This is particularly so where the offenses are temporally
separated in such a way as to afford the defendant opportunity to reflect and to
renew his or her intent before committing the next one, thereby aggravating the
violation of public security or policy already undertaken. [Citation.]’ [Citation.]
“The defendant’s intent and objective present factual questions for the trial
court, and its findings will be upheld if supported by substantial evidence.
[Citation.] ‘We review the court’s determination of [the defendant’s] “separate
intents” for sufficient evidence in a light most favorable to the judgment, and
presume in support of the court’s conclusion the existence of every fact the trier of
fact could reasonably deduce from the evidence. [Citation.]’ [Citation.]” (People
v. Andra (2007) 156 Cal.App.4th 638, 640-641.)
Defendant argues: “[T]here is no substantial evidentiary basis for a finding
that [he] possessed separate criminal objectives for an assault or criminal threats.
Looking at the facts in the light most favorable to the verdicts, the purpose of the
assault and criminal threats was only to facilitate the attempted murder.”
Defendant’s argument is not persuasive. We find, instead, that substantial
evidence supports the trial court’s implied finding that, over a short time span,
defendant, having the opportunity to reflect, entertained multiple criminal
objectives when he committed three separate offenses. (People v. Jones (2002)
103 Cal.App.4th 1139, 1143 [“If the defendant harbored ‘multiple or simultaneous
27
objectives, independent of and not merely incidental to each other, the defendant
may be punished for each violation committed in pursuit of each objective even
though the violations share common acts or were parts of an otherwise indivisible
course of conduct.”].)
First, defendant used racial epithets to provoke Stine into leaving the car and
attacking Johnson. In self-defense, Johnson fought Stine. Defendant, armed with
a knife, joined the struggle when he kicked Johnson “pretty hard” in the face.
Defendant’s actions evinced an intent to apply physical force on Johnson and
inflict great bodily injury, thereby committing a felonious assault. (§ 245, subd.
(a)(1).)
Johnson continued to defend himself from defendant and Stine. Defendant
did not leave the fight but, instead, placed his arm around Johnson, pointed a knife
at Johnson and told him that if he did not “get off” of Stine, he (defendant) was
“going to cut [his] fucking throat.” Fearing for his life, Johnson pushed
defendant’s hand away. These actions demonstrate that defendant intended,
through his verbal threat and use of the knife, to place Johnson in reasonable fear
that he would be killed. At that point, defendant committed the crime of making
criminal threats. (§ 422; (People v. Thornton (1992) 3 Cal.App.4th 419, 422.)
But once again, defendant chose not to terminate his involvement in the
attack even though he had succeeded in inflicting mental terror upon Johnson.
Defendant and Stine continued to attack Johnson as Gurfinkiel joined the assault.
Defendant, Stine and Gurfinkiel formed a circle around Johnson, and operating as
a team, continued to hit him. Johnson tried to escape but defendant restrained him.
During this portion of the struggle, Johnson was stabbed. By this point,
defendant’s actions, taken in concert with Stine and Gurfinkiel, evinced the
specific intent to kill Johnson, resulting in the commission of an attempted murder.
(§§ 664/187, subd. (a).)
28
In sum, substantial evidence supports the trial court’s implied finding that
defendant “entertained multiple criminal objectives which were independent of and
not merely incidental to each other.” (People v. Beamon (1973) 8 Cal.3d 625,
639.) Therefore, the trial court’s sentence does not violate section 654.
E. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
Defendant’s contention of ineffective assistance of trial counsel begins with
the claim that the trial court erred in admitting his interview with the detectives.
According to defendant, the interview “was involuntary because it was the product
of a custodial interrogation conducted without proper Miranda advisements” since
the detectives failed to advise him that anything he said could and would be used
against him. In addition, defendant claims the interview was coerced because the
detectives ignored his repeated assertions of the right to counsel. The Attorney
General correctly notes that trial counsel’s failure to object to the admission of the
evidence constitutes forfeiture of the claim. (People v. Rundle (2008) 43 Cal.4th
76, 122-123.) “Because the question of coercion turns on the intensely factual
inquiry into the totality of the circumstances [citation], it is an especially poor
candidate for first-time consideration on appeal.” (People v. Quiroz (2013) 215
Cal.App.4th 65, 78.)
Anticipating that forfeiture analysis, defendant advances the contention that
we do address in this appeal: his trial attorney’s failure to object “was objectively
unreasonable” and therefore constituted prejudicial ineffective assistance of
counsel. We are not persuaded. We conclude that defendant cannot establish that
trial counsel’s omission was either objectively unreasonable or prejudicial.
29
1. Factual Background
The interview, conducted in the police station after defendant had been
arrested, lasted approximately 53 minutes. At the beginning of the interview,
Detective Fajardo advised defendant, who was then 28 years old and handcuffed,
of his right to remain silent, his right to an attorney “before and during
questioning,” and his right to have the court appoint an attorney for him.
Defendant indicated he understood those rights. The detective, however, did not
advise defendant that anything he said could and would be used against him.
Detective Fajardo explained: “I’m going to tell you what we know . . . [a]nd
then after that I’m going to ask you whether you want to talk to us or not.” After
Detective Fajardo recited how Stine left the car and attacked Johnson, he asked
defendant: “Do you want to talk to us about it? It’s a simple yes or no.”
Defendant responded: “You tell me what’s been said and I’ll tell you --”
Detective Fajardo replied that defendant needed to answer his question “yes” or
“no.” Defendant replied: “Yeah, I’ll talk about it. Why all of a sudden now
though [nine months after the events]?” The detectives answered: “Cause we
didn’t know who you were” and “Your name didn’t come up til recently.”
Defendant asked what was said. Detective Fajardo replied that “five different
people” had told him that defendant had been there and “bragged about stabbing
the African American guy.” Defendant replied he was not “stupid” and would not
“run around and brag” that he had stabbed someone.
After the interview had been conducted for approximately seven minutes,
defendant stated, for the first time: “I need a lawyer.” (Italics added.) Detective
Fajardo replied “Okay. There’s --” but before he could finish his sentence,
defendant asked to telephone his girl friend. The detectives responded that he
could do so after he was booked.
30
Detective Fajardo explained that because he had not witnessed the crime, he
was trying to determine what had happened. Defendant asked: “Is this shit going
to end up getting put on me, honest? [¶] . . . I’ve been in and out of the system for
15 years.” Defendant asked: “[Y]ou know more than -- from how you see it, is it
on me?” Detective Fajardo replied “Yeah” and Detective Doerbecker said “Not
completely.” Defendant said: “I didn’t stab that dude. All I did was try to stop it.
I swear to God.” Defendant continued to maintain that he would never stab
anyone.
Approximately 10 minutes into the interview, the issue of counsel again
arose. Defendant asked: “When am I going to be able to talk to a lawyer?”
(Italics added.) Detective Fajardo replied “Probably when you get arraigned
tomorrow.” Detective Doerbecker said: “Unless you want to call one once you’re
booked.” In response to a question from defendant about a free telephone call,
Detective Doerbecker replied: “I think you still get your free ones when you first
get booked. You get a couple free ones then --” The interview continued.
Several minutes later, defendant asked: “What do I got to do to get out of
this because there’s a gang of people I can help you get, whatever. Rocky, Trish.”
Detective Fajardo asked: “What are they wanted for?” Defendant replied: “I
don’t know. What aren’t they wanted? It’s not like, necessarily wanted, but
they’re doing shit. Come on, you guys know who they are. I can’t go to jail for
the rest of my life for some shit some fucken kids did.” Detective Fajardo stated
that because “we were not there[,] . . . we [need to] hear your side of the story.”
Defendant replied: “I’m on parole. I got arrested, everything, you know
what I mean? I’m going to get the worse . . . end of this shit. [¶] . . . It’s not
going to matter what really happened or nothing.” Defendant again denied
involvement in the crimes. Detective Doerbecker said: “If you want to talk to us,
have your attorney contact us, we’ll be glad [to] sit down and talk to you. You can
31
layout everything that happened.” Defendant replied: “You know just as well as I
do that I’m going to get fucked on this so it doesn’t matter. [¶] . . . I already have
three strikes. [¶] . . . I don’t have no money, no nothing. What, some public
defender is going to sit there fucken actually honestly defend me for fucken,
what?”13 Defendant offered: “Is there any way I can just talk to my girlfriend real
quick and then I’ll talk to you. I’ll fucken tell you whatever the fuck you want to
know about what happened then.” The detectives offered a speaker phone
conversation. Defendant said: “That’s fine.” The detectives telephoned
defendant’s girl friend and defendant spoke with her on the speaker phone her for
several minutes.
After the conversation had ended, defendant said: “What do you want to
know?” Detective Doerbecker explained: “We have to revisit the attorney thing.
You want to talk to us without your attorney?” (Italics added.) After defendant
replied “I guess so[,]” Detective Doerbecker stated: “Don’t guess. You either
want to or you don’t. We don’t want to force you. You can wait until you’re
arraigned, if you want.” (Italics added.) Defendant responded: “That’s fine. I’ll
talk to you. . . . I didn’t do nothing. I got to prove it.” (Italics added.) At this
point, approximately 20 minutes had passed since the interview had begun.
For the next 30 minutes, defendant spoke freely about the attack, often
responding to questions from the detectives. In this portion of the interview,
defendant repeated key parts of his defense multiple times: (1) he had entered the
struggle to stop it (nine times); (2) he had not stabbed Johnson (eight times); and
(3) Stine had stabbed Johnson (six times).
13
Towards the end of the interview, defendant said: “I’m going to walk into court
tomorrow and they’re going to tell me, this is a three strikes case, 25 to life.”
32
Further, defendant made several statements essentially offering to help build
a case against Stine as the stabber. Defendant volunteered that he knew where
Stine had disposed of the knife. He offered to show the detectives a text message
from Stine’s girlfriend stating that Stine had admitted he had stabbed Johnson.
And at one point he said: “What the fuck do I got to do is sit on the stand and say
that Gunnar [Stine] stabbed him, you know what I mean?”
Lastly, defendant indicated his understanding that what he said to the
detectives could be used against him. When Detective Fajardo asked him whether
he had kicked Johnson “a couple times,” defendant responded: “And admitting
that to you right now is going to give me life in prison.”
2. Ineffective Assistance of Trial Counsel
To establish ineffective assistance of counsel, a defendant must show “‘“that
counsel’s representation fell below an objective standard of reasonableness under
prevailing professional norms, and that counsel’s deficient performance was
prejudicial, i.e., that a reasonable probability exists that, but for counsel’s failings,
the result would have been more favorable to the defendant.”’” (In re Crew (2011)
52 Cal.4th 126, 150.) “‘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.’” (People v. Karis (1988) 46
Cal.3d 612, 656.)
a. Defendant Cannot Establish Trial Counsel Failed to Act as a Reasonable
Advocate
When, as here, the record fails to disclose why counsel failed to act in the
manner challenged, we will affirm the judgment unless “there simply could be no
satisfactory explanation” for counsel’s omission. (People v. Hart (1999) 20
33
Cal.4th 546, 623-624.) Here there are two satisfactory explanations for counsel’s
failure to challenge the admission of the interview into evidence.14
The first satisfactory explanation is that defense counsel decided that, on
balance, allowing the jury to hear defendant’s interview with the detectives would
support, rather than hinder, the defense. By the time the prosecutor moved to
introduce the interview, defendant already had testified on direct examination that
he had not attacked or stabbed Johnson but, instead, had entered the fight to stop it.
By not objecting to the introduction of the interview, defense counsel allowed the
jury to learn that when defendant was first questioned by the police, he made many
statements consistent with his trial testimony. This tactic permitted the jury to hear
and consider defendant’s statements to the police for the truth of the matter
asserted. But if these statements had been offered by the defense, they would have
been subject to a valid hearsay objection from the People. What is more, defense
counsel used those (hearsay) statements in his closing argument to argue that
defendant was not guilty of the charged offenses. This “is a classic tactical
decision. It defeats any contention that counsel was asleep at the switch or
otherwise ineffective. [Citation.]” (People. v. Quiroz, supra, 215 Cal.App.4th at
p. 78.)
The second satisfactory explanation for trial counsel’s omission is that he
recognized that the trial court would have overruled an objection that defendant’s
statements in the interview were involuntary. If an objection lacks merit, counsel
is not ineffective in failing to make it. (People v. Carter (2003) 30 Cal.4th 1166,
1210.) In that regard, the following principles are relevant to the claim that
14
Defendant also claims that trial counsel was ineffective because he failed to
request the redaction of some of defendant’s statements from the interview. We address
that claim when we explain why defendant has failed to establish prejudice as a result of
counsel’s omission(s).
34
defense counsel should have objected. Statements obtained in violation of
Miranda are inadmissible in the prosecution’s case-in-chief but can be used to
impeach the defendant when, as here, he chooses to testify at trial. (People v. May
(1988) 44 Cal.3d 309, 316.) However, to be admissible for impeachment, the
statements must be voluntary. An involuntary statement cannot be used for any
purpose. (People v. Neal (2003) 31 Cal.4th 63, 78.) Hence, the issue is whether
defendant’s statements to the detectives were voluntary or involuntary.
A statement is involuntary “when, among other circumstances, it ‘was
“‘extracted by any sort of threats . . . , [or] obtained by an direct or implied
promises, however slight. . . .’”’ [Citations.] Voluntariness does not turn on any
one fact, no matter how apparently significant, but rather on the ‘totality of [the]
circumstances.’ [Citations.]” (People v. Neal, supra, 31 Cal.4th at p. 79.) This
mandates, among other things, an “‘evaluation of [defendant’s] age, experience,
education, background, and intelligence. . . .’ [Citation.]” (Id. at p. 84.) That the
statement was obtained despite the defendant’s invocation of the counsel is one
circumstance to consider but it is not dispositive. (People v. Bradford (1997) 14
Cal.4th 1005, 1041.) The ultimate inquiry is “‘“whether a defendant’s will was
overborne”’” by the circumstances. (People v. Dykes (2009) 46 Cal.4th 731, 752.)
To begin, defendant’s statements to the detectives indicate that he was well-
versed in the ways of the criminal justice system. He conceded that by age 28, he
had “been in an[d] out of the system for 15 years.”15 He recognized that the
charges would constitute a Three Strikes case. He acknowledged that an admission
that he had kicked Johnson would be used against him. He was familiar with and
denigrated the value of the Public Defender’s Office.
15
Defendant’s probation report reflects that he has a lengthy criminal history going
back to 1994.
35
Further, defendant’s interactions with the detectives exhibited his savvy. At
the beginning of the interview, he made several attempts to learn the specific
evidence against him before he would answer any questions. Later, he attempted
to trade information on others (“Rocky, Trish”) “to get out of this” and offered to
help build a case against Stine as the stabber. Taken together, these facts suggest
that defendant’s “operative ability to calculate his self-interest in choosing whether
to disclose or withhold information” was functioning and that his “will [had not
been] overborne by official coercion.” (People v. Coffman and Marlow (2004) 34
Cal.4th 1, 58.)
To reach a contrary conclusion, defendant primarily argues that his
statements were involuntary because he invoked the right to counsel several times.
We disagree.
Defendant’s first statement “I need a lawyer” was not, as now claimed by
defendant, a “clear[] request [for] an attorney.” When viewed in context, the
statement can be seen simply as an acknowledgement by defendant that he would
need counsel to defend against any charges. Thus, it was not an unequivocal
assertion of counsel that would require the detectives to terminate the interview.
(See People v. Suff (2014) 58 Cal.4th 1013, 1068 and People v. Williams (2010) 49
Cal.4th 405, 429.) In any event, when Detective Fajardo began to respond to that
statement, defendant interrupted him and asked to telephone his girl friend (not his
attorney).
Approximately 10 minutes later, defendant asked: “When am I going to be
able to talk to a lawyer?” Defendant urges that this statement equates with a
“clear[] invo[cation] [of] his right to counsel.” We disagree. This was not an
unequivocal assertion that defendant did not wish to continue the interview without
an attorney. The question could reasonably be seen as a mere inquiry as to when
36
counsel would be available, an inquiry to which the detectives posed several
answers. The interview continued.
When Detective Doerbecker said: “If you want to talk to us, have your
attorney contact us, we’ll be glad [to] sit down and talk [and] [y]ou can layout
everything that happened,” defendant essentially declined the offer, responding
that he saw no value in the assistance of a public defender. Defendant agreed to
speak about the events if he could speak first with his girl friend. The detectives
complied with that request.
After defendant spoke with his girl friend, Detective Doerbecker explicitly
asked defendant if he wished to speak to them without his attorney and told him
that he had to give an unequivocal answer. Defendant agreed to speak without
counsel. Defendant now suggests that this consent was coerced for two reasons.
First, he claims that the detective’s “question of whether [he] wanted to talk with
them was clearly disingenuous” because he had already “twice invoked [his] right
to counsel.” The claim fails because, as explained above, defendant had not
clearly and unequivocally invoked the right to counsel in the earlier portion of the
interview. Second, defendant claims that his consent was coerced because he “still
had not been informed that anything he said can be used against him.” The
argument misses the mark because the failure to give the complete Miranda
admonition does not, in and of itself, constitute coercion. (People v. Jablonski
(2006) 37 Cal.4th 774, 814.)
Significantly, the detectives never made any threats or promises to defendant
either before or while he told them his version of the events. They never promised
him leniency in exchange for his admissions. Instead, they advised him that five
people had told them about his involvement in the attack, including the fact that he
had kicked Johnson in the head, and asked him to tell them what had happened.
37
This investigative approach supports the conclusion that defendant’s statements
were a product of his free will.
For all of the foregoing reasons, a reasonable attorney could conclude that a
claim that defendant’s interview with the detectives was involuntary lacked merit
and therefore decide not to object to the introduction of the interview into
evidence. Because such a decision constitutes “‘an informed tactical choice within
the range of reasonable competence,’” defendant’s claim of ineffective
representation must be rejected. (People v. Bolin (1998) 18 Cal.4th 297, 317.)
b. Defendant Cannot Establish Prejudice As a Result of Trial Counsel’s
Failure to Object
Assuming arguendo that the failure to object to the introduction of the
interview constituted ineffective assistance of counsel, defendant cannot establish
prejudice. “It is not sufficient to show the alleged errors may have had some
conceivable effect on the trial’s outcome; the defendant must demonstrate a
‘reasonable probability’ that absent the errors the result would have been different.
[Citations.]” (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.) “‘“‘A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.”’” [Citations.]” (People v. Anderson (2001) 25 Cal.4th 543, 569.)
Defendant urges prejudice has been established because the prosecutor’s
cross-examination of him as well as her closing argument noted some of the
inconsistencies between his trial testimony and his statements to the police.
Further, he claims that this prejudice was exacerbated because the jury asked to
hear the tape recording of the interview during deliberations. (See fn. 8, ante.)
Defendant gives far too much weight to these factors. For one thing, the bulk of
the prosecutor’s argument relied upon the testimony of Johnson, Marlow and
Parker to argue that defendant’s guilt had been established beyond a reasonable
38
doubt. And, as previously noted, defense counsel also made use of the interview.
He relied upon defendant’s self-serving exculpatory statements to argue that
defendant was not guilty. Since the interview contained statements that both
parties relied upon to argue their case, the fact that the jury asked to listen to it
during deliberations does not establish prejudice. Lastly, the People presented
abundant and compelling evidence of defendant’s guilt. In sum, defendant has
failed to demonstrate that there is a reasonable probability that absent the
admission into evidence of the interview, the result would have been different—a
result defendant defines as a failure to convict him on the attempted murder
charge.
Lastly, defendant argues that he was prejudiced because trial counsel failed
to move to redact from the interview defendant’s statements regarding the right to
counsel, his parole status, his belief that this prosecution would be a Three Strikes
case, and his venereal diseases.16 (See fn. 14, ante.) The argument fails. The
prosecutor did not mention any of those statements in either her cross-examination
of defendant or her closing argument. In fact, some of this information was
already before the jury. On direct examination, defendant had volunteered that he
had suffered four convictions (three felony and one misdemeanor). Because
abundant evidence of defendant’s guilt was presented, we can confidently conclude
that defense counsel’s failure to move to redact those statements from the
interview did not adversely affect the outcome of his trial. (People v. Waidla
(2000) 22 Cal.4th 690, 719.)
16
Ten minutes into the interview, Detective Fajardo asked defendant if he was
taking any medication. Defendant replied: “Yeah, I take medication for Herpes and
Gonorrhea.”
39
F. PRE-SENTENCE CUSTODY CREDIT
The Attorney General correctly points out an error in the award of pre-
sentence custody credit. The trial court awarded defendant 1,480 days of pre-
sentence custody credit and 222 days of conduct credit but incorrectly computed
the total as 1,708 days. The correct amount is 1,702 days. We direct preparation
of an amended abstract of judgment to correct that error.
DISPOSITION
The trial court is directed to prepare and forward to the Department of
Corrections and Rehabilitation a certified amended abstract of judgment reflecting
that defendant is entitled only to 1,702 days of pre-sentence custody credit. In all
other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
EPSTEIN, P. J.
COLLINS, J.
40