People v. Custer CA3 ( 2021 )

Filed 10/12/21 P. v. Custer CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C089875
Plaintiff and Respondent, (Super. Ct. No. 18FE020057)
v.
JUSTIN DEWAIN CUSTER,
Defendant and Appellant.
Rejecting theories of self-defense and defense of others, a jury convicted
defendant Justin Dewain Custer of attempted murder, discharging a firearm at an
occupied motor vehicle, shooting a firearm in a grossly negligent manner, and assault
with a semiautomatic firearm. The jury further found that defendant personally used a
firearm, personally used and intentionally discharged a firearm, and personally used and
intentionally discharged a firearm causing great bodily injury. The trial court sentenced
defendant to an aggregate term of 32 years to life in state prison.
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Defendant now contends (1) the trial court abused its discretion and violated due
process principles by limiting his ability to present evidence of the victim’s acts of
violence; (2) trial counsel was ineffective when failing to request the jury be instructed
that it could consider the victim’s reputation and character for violence; (3) the trial court
violated defendant’s constitutional rights when it instructed the jury with CALCRIM No.
3472 (Right to Self-Defense: May Not Be Contrived), as the instruction was “not
relevant given the facts presented at trial” and “reduced the prosecution’s burden of
proof”; (4) trial counsel was ineffective by presenting a closing argument that was
“almost entirely premised on a factual error”; and (5) remand is necessary to allow the
trial court to consider imposing a lesser firearm enhancement in lieu of the enhancement
imposed for personally and intentionally discharging a firearm causing great bodily
injury.
We will affirm.
BACKGROUND
In April 2017, defendant and Manuel Anthony Penna had been close friends for
several years, and defendant knew Penna as a family friend of more than 20 years. The
two socialized often, and worked on cars together, sometimes at defendant’s home.
Defendant’s home was on Lerwick Road, though at the time of the shooting,
defendant was staying with his friend and neighbor, Dustin Brown, on Lerwick Road.
Penna often stayed at his mother’s house also on Lerwick Road, about 11 houses away.
In early April 2017, Penna traded a firearm for Brown’s car, a Mustang. Penna
remarked to Brown that he felt “naked” without the gun he traded, and Brown replied that
he would give Penna the chance to buy the “next gun” that Brown obtained.
Later, defendant showed a .40-caliber Smith & Wesson gun to Penna, who
expressed interest in it. But because Penna didn’t have enough money to buy the gun
directly from Brown, Brown and defendant “worked it out” so that defendant obtained
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the gun from Brown, and then gave it to Penna in exchange for $200 and various items,
including a signed San Francisco 49ers football.
Four or five days later, Penna learned that defendant “need[ed] the gun back.”
Penna “got upset at” defendant.
People’s Case
i. Penna’s Testimony
Penna testified that on the day of the shooting, about a week after learning that
defendant wanted the gun back, Penna was in his mother’s garage playing videogames
with a friend when defendant “pull[ed] up in his wife’s . . . Corolla,” walked into the
garage, and said that he could see “all the way down to” Penna’s mother’s house with a
“new scope for [a] rifle” that defendant recently acquired. Penna replied: “What the fuck
are you talking about, dude, you can see all the way down?” “What are you staring at my
house with a scope for?”
Defendant responded: “No, no, no. It’s nothing like that. I just want you to
know, if you had a problem down there, I got your back.” Defendant then inquired about
the gun Penna obtained from him, and Penna replied: “I’m not trading back with you.”
“[A] deal is a deal.”
Defendant got mad and said, “Remember what I said about that scope.” Penna
replied: “Motherfucker, you come down to my mom’s house and threaten me at my
mom’s house?” Defendant “took off running to his car, [and] [Penna] took off chasing
him.” Defendant got in his car, and Penna tried to open the door. Defendant “turn[ed]
the wheel to where the car hit[] [Penna] . . . [¶] . . . and . . . stop[ped] on [Penna’s] foot.”
Penna twice told defendant that the car was on his foot, but defendant “didn’t move the
car, so [Penna] . . . knocked the glass out” of the driver’s side front window with his
hand. Defendant drove away down the street “about two or three cars, turn[ed] around,”
and “pull[ed] [a] gun” out, “just point[ing] and look[ing] at” Penna, and left.
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Penna changed his clothes and agreed with his friend they should leave his
mother’s house. Penna’s friend left in her own car, as she had “things that she was going
to do,” and Penna was “probably . . . just going to go for a ride and smoke a cigarette.”
As Penna drove by defendant’s home in his Mustang (which Penna explained was “loud”
because the “exhaust [was] cut off”), he saw defendant’s wife outside with a broom and
dustpan and felt bad that he broke her car window. He also saw defendant.
When Penna heard “the first pop,” he thought it came from his car. But then he
heard “pop, pop, pop, pop, pop . . .” and realized that someone was shooting at him. He
did not see defendant shoot at him or hear defendant say anything. He looked in the
rearview mirror, and saw a bullet in his face.
Penna said he did not possess a gun at the time of the shooting.
Penna admitted that he suffered felony convictions in 1999, 2003, 2006, and 2009.
On cross-examination, he admitted (i) his 1999 conviction was for assault with a deadly
weapon, and that he went to prison for the offense, and (ii) his 2006 and 2009 convictions
were for being an “ex-felon with a gun.”
Also on cross-examination, Penna denied ever assaulting defendant’s wife.
ii. Eyewitness Testimony
Moments before defendant fired his gun at Penna, a man who lived across the
street, got in his truck to get gas. The truck was in a driveway and facing the street. The
man described to the jury what he saw through his windshield: “I saw the guy in front of
me, he was kind of like kind of waiting for the car -- for a car to get there, to pass. He
was kind of waiting for the car to pass. Like, he was following with his hand, following
with his hand to the car.”
Under further questioning, the man explained that when he said defendant was
“following the car with his hands,” he meant “shooting at the car.” The car defendant
was shooting at was moving from the man’s right to his left, as he sat in his truck.
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iii. Video Evidence
The shooting was captured on video cameras mounted next door to the testifying
eyewitness’s home. The videos show a duplex, with two cars parked in the driveway.
The garage door on the right is closed, and the garage door on the left (corresponding to
Brown’s home) is half-open. Penna’s friend’s car drives past the duplex at 19:33:07, and
defendant emerges from Brown’s garage seven seconds later, stands by the garage door
for about five seconds, and then goes back inside at 19:33:19. At 19:33:30, defendant
emerges from the garage for the second time, and crouches/kneels between the garage
door and a parked car. At 19:33:36, defendant stands up and begins firing his gun at
Penna’s car as it drives by, firing the last shot at 19:33:39.
Defendant’s Case
i. Defendant’s Testimony
Taking the stand in his own defense, defendant testified that his relationship with
Penna took a negative turn when, beginning about two weeks before the shooting,
Penna’s girlfriend came to defendant’s home with “black[] . . . eyes” and a broken nose
inflicted by Penna, and a short time later, Penna struck defendant’s wife (and mother of
his two children) with a pistol, “completely split[ting] in half” one of her lips, and
threatened to kill her.
Penna assaulted defendant’s wife when she confronted Penna about his inoperable
car that had been parked in front of defendant’s home for “months,” generating several
“code-enforcement complaints that went to [defendant’s] landlord” and “came back to”
defendant. Defendant’s wife declined to seek medical attention for her injuries, because
“it would [have] put [them] in more danger” with Penna, but she asked defendant: “What
else has to happen . . . for you to do something?” Defendant began to fear Penna.
On the day of the shooting, defendant went to Penna’s mother’s house and
knocked on the garage door, which was slightly open, and asked Penna to come outside
to talk about the car in defendant’s driveway. Defendant wanted to “get the car moved
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because [he] had a three-day notice that if the car wasn’t . . . moved, [his family] would
be evicted.” At first, Penna ignored defendant and continued playing video games. But
then Penna “grabbed his gun from out of the couch and stuck it in his waist[band],”
which surprised defendant, who “didn’t think that [Penna] was going to react with a
firearm to that situation.”
Defendant “told [Penna] about the car, [but] [Penna] just assumed it was about
[the] firearm” that defendant traded with Penna. Defendant told Penna that he “needed
the car moved, that [he] wasn’t down there for [the] firearm,” which Penna “could . . .
shove . . . up his ass.” Defendant complained that Penna was “causing problems for
[him] and [his] wife and [his] family.”
Penna “pull[ed] his gun out of his waist[band], and he sa[id], Well, what do you
mean? You going to snitch on me now?” Defendant understood Penna to be referring to
the assault on defendant’s wife. As he walked backwards toward his car, defendant
repeated that he “need[ed] [Penna] to get [his] stuff . . . away from [defendant’s] house.”
“Just stay away from me,” defendant said.
Penna approached the car as defendant got in, and asked defendant if he was going
to call the police. Defendant closed the door and started the car. Penna unsuccessfully
tried to open a locked car door, “smash[ed] out” the car window with his gun (“put[ting]
a little gash on the side of” defendant’s head), and “put the gun to [defendant’s] head.”
Penna tried to pull defendant out of the car, and said: “You know who I am, and you
know what we do to rats,” referring to “people that talk to cops,” defendant explained.
Penna told defendant he would “kill [him] in front of [his] wife and [his] kids,”
“chambered a round,” and said to defendant: “If you were smart, you would go down
there and say good-bye to your kids right now.” Defendant drove home and, as he
retrieved a gun, told his wife to leave with their children, because Penna was coming to
kill him. Defendant “had a pretty good idea [Penna] was coming down the street,” given
what Penna had just told him. When defendant’s wife remarked that she couldn’t put
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their two-year-old in the child’s car seat, because there was broken glass in it, defendant
said he would ask Brown for keys to another car and a cell phone, so that his wife could
call the police after she left.
Defendant “ducked into [Brown’s] garage, and was waiting there,” for Brown to
get the car keys and phone when he saw Penna’s friend’s car “coming down the street.”
“[J]ust as” the car passed Brown’s home, it double-parked “on the side of the road” and
“waited for [Penna] to come down the street, which [was] how [defendant] knew [Penna]
was going to be coming . . . .” Defendant’s children were “out front,” with his wife, who
was trying to “clean the glass up real quick.”
As Penna’s car approached, defendant saw his wife push his son to the ground,
where his daughter was sitting in a car seat. Defendant “st[ood] up out of the garage.
And [Penna] [was] pointing a gun outside his passenger window.” The gun rested on the
partially open window, as Penna held it with his right hand. Seeing that, defendant tried
to shoot the gun out of Penna’s hand, as he “didn’t want [Penna] to shoot towards [him]
and [his] family.” Defendant fired his gun “until [he] didn’t see [Penna’s] gun anymore.”
Defendant shot at Penna because he was afraid.
ii. Cross-examination
On cross-examination, defendant denied he had a gun when he visited Penna on
the day of the shooting, and agreed that the video footage shown earlier in the trial
showed him shooting at Penna from Brown’s driveway, and the moments just before the
shooting.
Defendant explained that, while he was in Brown’s garage waiting for car keys
and the cell phone to give to his wife, a neighbor’s daughter “walked into the garage,”
looking for her father. And though defendant initially “went to run and hide in the
garage” after he saw Penna’s friend’s car “drive by and stop and wait for” Penna, the
appearance of the neighbor’s daughter prompted him to “step[] out of the garage to try to
7
take whatever potential gunfire or whatever was going to happen, and keep it away from
her.”
The following exchange occurred:
“[The prosecutor]: Now, we then see you come back outside the garage, right, and
crouch down low?
“[Defendant]: I don’t think I came outside and crouched down low, no. I just
came out of the garage, from my recollection.
“[The prosecutor]: So that surveillance footage doesn’t show you coming out of
the garage and ducking down underneath what would be the hood of [a car parked in the
driveway]?”
“[Defendant]: I guess the video depicts what it depicts, but I came out of the
garage. I wasn’t crouched down. When I came out of the garage, I knew he was there
with a gun.”
Defendant conceded that, though he spoke to police about the shooting, his trial
testimony was the first time he presented this version of events. He admitted that he lied
to the police when he said he didn’t know Penna and wasn’t on Lerwick Road in April
2017. He said he lied “[o]ut of fear for [his] family.”
iii. Defendant’s Wife’s Testimony
Defendant’s wife testified that some time before the shooting -- when she went to
Penna’s house to talk to him about the problems between Penna and defendant -- Penna
ran at her with a pistol and hit her in the face with it.
When defendant came back from Penna’s house on the day of the shooting, his
head was bleeding, and the car window was broken, with glass inside. Defendant told his
wife that if she heard Penna coming down the street, to make sure the kids were inside.
She was cleaning glass out of the car when she saw Penna coming in his car, holding a
pistol in his hand. At that moment, her son came into the front yard, and she looked at
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defendant to warn him. She saw defendant shoot at Penna’s car, and she felt defendant
“did what he had to do to protect [their] kids.”
Jury Instructions
The trial court instructed the jury on self-defense, imperfect self-defense, and
“heat of passion” attempted voluntary manslaughter as a lesser included offense of
attempted murder. The trial court also instructed the jury with CALCRIM No. 3472,
explaining that “[a] person does not have the right to self-defense or defense of another if
he or she provokes a fight or quarrel with the intent to create an excuse to use force.”
Closing Arguments
In closing argument to the jury, the prosecutor argued defendant’s version of the
shooting was “utterly unreasonable on its face. You almost don’t have to look at the
other evidence . . . . It just doesn’t pass the sniff test, right?”
The prosecutor homed in on the video evidence: “How long was [defendant]
hunkered down there? How long is he squatting down there while . . . Penna is
apparently pointing a gun at his wife? That behavior, that body language, just utterly
does not comport with the story he is trying to spin for you in court.” The prosecutor
argued that defendant’s self-defense/defense-of-others theory “[u]tterly d[id] not work,”
because after the altercation at Penna’s mother’s house, defendant went home, and “[t]he
entire thing cool[ed] off. Then he ambushed him. [¶] That’s what we see [in the
video.]” “This [was] not self-defense. This was an ambush,” the prosecutor repeated,
after playing video footage for the jury.
Defense counsel argued defendant acted in defense of himself and defense of
others when he shot at Penna.
He contended that a Smith & Wesson bullet found on the ground at Penna’s
mother’s house buttressed defendant’s testimony that Penna broke defendant’s car
window with a gun, not his hand. The prosecutor objected that this was not a fact in
evidence, and the trial court sustained the objection.
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In rebuttal argument, the prosecutor referenced defense counsel’s factual error
about the bullet found near Penna’s mother’s home, and suggested defense counsel was
“making up facts” because he was “out of ways to convince [the] jury of self-defense.”
The prosecutor argued that if Penna actually had a gun in his car at the time of the
shooting, he “would have admitted it.”
Verdicts and Sentence
On May 21, 2019, a jury found defendant guilty of attempted murder (§§ 664/187,
subd. (a)), discharge of a firearm at an occupied vehicle (§ 246), assault with a firearm
(§ 245, subd. (b)), and shooting a firearm in a grossly negligent manner (§ 246.3).
Further, the jury found that defendant personally used and personally discharged a
firearm, causing great bodily injury to Penna (§§ 12022.5, subds. (a), (d), 12022.53,
subds. (b), (c), (d), 12022.7, subd. (a)).
The trial court imposed a sentence of seven years in prison for the attempted
murder (the middle term), plus an indeterminate term of 25 years to life in prison for the
associated firearm enhancement (§ 12022.53, subd. (d)). The trial court imposed and
stayed sentences for defendant’s three other offenses, pursuant to section 654.
At the sentencing hearing, the trial court addressed defendant about why he did not
accept the prosecution’s offer to resolve the case before trial: “I don’t know what you
were thinking, because you are on videotape shooting this guy. You are on videotape. It
was a virtually unlosable case. [¶] . . . No jury in their right mind would do anything but
convict you of this crime. [¶] . . . [¶] [Y]ou very furtively -- it’s very obvious. You
wait. You can hear the car coming. You can hear it accelerating as it comes by your
home, and you run out there and ambush him. [¶] When they watched that videotape, I
turned and looked at the jury. As soon as they saw that videotape it was over. . . .
Because everybody knows that you don’t run out from behind a car and start shooting
somebody else, and . . . get to . . . argue self-defense.”
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DISCUSSION
I
Claims for Reversal of the Convictions
Defendant presents four claims for reversal of his convictions: (1) the trial court
abused its discretion and violated defendant’s due process rights to a fair trial by limiting
his ability to present evidence of Penna’s acts of violence both prior and subsequent to
the shooting; (2) trial counsel’s failure to request the jury be instructed that it could
consider Penna’s reputation and character for violence deprived defendant of effective
assistance of counsel; (3) the trial court violated defendant’s constitutional rights to a fair
trial and due process when it instructed the jury with CALCRIM No. 3472, as the
instruction was “not relevant given the facts presented at trial” and “reduced the
prosecution’s burden of proof”; and (4) trial counsel rendered ineffective assistance by
presenting a closing argument that was “almost entirely premised on a factual error.”
Defendant acknowledges that each of these claims is subject to review for
harmless error.
Because we conclude that any error by the trial court and/or trial counsel was
harmless, we reject defendant’s claims.
A. Ruling on the Admissibility of Penna’s Violent Acts and Violent Character
Prior to trial, the People moved to exclude any evidence tending to show Penna’s
violent character, arguing that such evidence was only relevant if defendant raised a
claim of self-defense. Defense counsel argued that defendant would argue self-defense
and would testify, and therefore that Penna’s propensity for violence was an issue for the
jury to consider.
The trial court told defense counsel that evidence of Penna’s violent acts was
relevant only if defendant was aware of the acts, and that counsel could not introduce
details of Penna’s then-recent criminal convictions for assault with a deadly weapon and
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mayhem,1 as Penna’s commission of those crimes (which Penna committed after the
shooting) was admissible only to impeach Penna, not to demonstrate Penna’s violent
character.
Defendant argues the trial court’s ruling was wrong in at least two ways: (1) the
trial court should have allowed defendant to introduce evidence of Penna’s violent acts to
prove that Penna “acted in conformity with his violent character on the day of the
shooting”; and (2) Penna’s postshooting character evidence was also admissible.
Acknowledging that trial counsel “failed to press the issue,” defendant contends that any
possible forfeiture of this claim was ineffective assistance of counsel, which would
permit us to consider the merits.
The People argue defendant forfeited this claim by failing to make “specific
objections in the trial court,” and, on the merits, the trial court did not abuse its discretion,
but “ruled . . . in a practical manner that allowed [defendant] to present the relevant
evidence he actually wanted to present.” Last, the People argue any error was harmless.
B. Counsel’s Failure to Request Jury Instructions on Penna’s Violent Character
Defendant argues that trial counsel “did not request that the jury be instructed that
it could consider Penna’s reputation and character for violence and aggression, or his
specific acts of violence and aggression, as substantive proof of [Penna’s] actions on the
day of the shooting,” and that this failure deprived defendant of effective assistance of
counsel.
The People argue defense counsel “had conceivable, rational reasons for not”
requesting those instructions, and in any event defendant was not prejudiced by counsel’s
performance, because “the evidence of [defendant’s] guilt was quite compelling.”
1 The mayhem conviction apparently concerned Penna biting someone’s finger off.
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C. CALCRIM No. 3472
Defendant argues there was no substantial evidence that he provoked a fight with
the intent to create an excuse to use force, and that, even if there were such evidence, the
instruction is an incorrect statement of law that lessened the prosecution’s burden of
proof. Acknowledging that trial counsel did not object, defendant argues we can consider
this claim because (i) the trial court’s error affected his substantial rights, and/or (ii) trial
counsel’s failure to object was ineffective assistance.
The People argue defendant forfeited this claim by failing to raise it below and
that even if the claim is not forfeited, we need not analyze the merits, because any error
was harmless.
D. Defense Counsel’s Closing Argument
Defendant argues that “[t]he entire” defense closing argument “was premised on
. . . a factual error” -- “that the bullet found on the ground in front of Penna’s mother’s
house was a Smith and Wesson bullet” -- which the prosecution “pounced on . . . and
presented . . . as . . . a blatant and deliberate lie.” Thus, defendant maintains, “by digging
in to an easily disprovable misstatement of the testimony,” defense counsel “squandered
[the] last clear chance” to persuade the jury that there was reasonable doubt.
The People argue that even if trial counsel’s factually unsupported argument was
deficient performance, defendant cannot show prejudice, in part because defense
counsel’s closing argument was not -- as defendant argues -- “ ‘premised on th[at] factual
error.’ ” Further, “the evidence against [defendant] was quite compelling.”
E. Harmless Error
“If an error violates a defendant’s federal constitutional rights, reversal is required
unless the error was harmless beyond a reasonable doubt. (Chapman v. California (1967)
386 U.S. 18, 24 [17 L.Ed.2d 705] (Chapman).) If the error is one of state law, we must
reverse the conviction if it is reasonably probable the defendant would have obtained a
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more favorable result absent the error. ([People v.] Watson [(1956)] 46 Cal.2d [818,]
837.)” (People v. Hernandez (2011) 51 Cal. 4th 733, 745.)
Under Chapman, “we ask ‘whether it is clear beyond a reasonable doubt that a
rational jury would have rendered the same verdict absent the error.’ ” (People v.
Canizales (2019) 7 Cal.5th 591, 615.) Under Watson, we ask “ ‘what a reasonable jury
. . . is likely to have done in the absence of the error under consideration. In making that
evaluation, an appellate court may consider, among other things, whether the evidence
supporting the existing judgment is so relatively strong, and the evidence supporting a
different outcome is so comparatively weak, that there is no reasonable probability the
error of which the defendant complains affected the result.’ ” (People v. Beltran (2013)
56 Cal.4th 935, 956.)
“ ‘The harmless-error doctrine . . . “recognizes the principle that the central
purpose of a criminal trial is to decide the factual question of the defendant’s guilt or
innocence, . . . and promotes public respect for the criminal process by focusing on the
underlying fairness of the trial.” ’ ” (People v. Concha (2010) 182 Cal.App.4th 1072,
1087.)
Video footage of a defendant committing the crime, if seen by the jury, may be so
compelling that even significant trial errors -- such as the erroneous admission of a
confession -- might be found harmless beyond a reasonable doubt on appeal. (See People
v. Neal (2003) 31 Cal.4th 63, 86 [explaining that “erroneous admission of any given
confession ‘might be found harmless’ ” under Chapman if “ ‘the prosecution introduced
. . . a videotape of the commission of the crime,’ ” even though confessions “ ‘often
operate “as a kind of evidentiary bombshell which shatters the defense” ’ ”]; cf. Khoa
Dang Nguyen v. McGrath (N.D. Cal. 2004) 323 F.Supp.2d 1007, 1022 [Judge Breyer’s
observation, citing Neal, inter alia, that “video tape of a crime can provide just the kind of
overwhelming evidence that would cause the erroneous admission of a confession to be a
harmless error”].)
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A harmless error analysis may include consideration of (a) implausible defense
testimony, (b) disinterested eyewitnesses’ testimony, and (c) closing argument. (See
People v. Fayed (2020) 9 Cal.5th 147, 195 [harmless error because of “the overwhelming
evidence of defendant’s guilt and in light of the discredited, implausible testimony” of
defendant’s “ ‘star witness’ ”]; People v. Zambrano (2004) 124 Cal.App.4th 228, 243
[prosecutorial misconduct harmless in light of defendant’s “patently unreasonable”
testimony]; People v. Torrez (1995) 31 Cal.App.4th 1084, 1091 [harmless error in driving
under the influence case where defense witness’s “credibility was already challenged by
his close friendship with [defendant] . . . and the . . . only disinterested eyewitness
testified she clearly saw [defendant] driving the car”]; People v. Flores (2016) 2
Cal.App.5th 855, 881 [“inclusion of the legally erroneous theory was harmless beyond a
reasonable doubt” in light of the evidence “and the closing arguments of counsel,” and
citing People v. Aguilar (1997) 16 Cal.4th 1023, 1036 for the proposition that a “court
considers closing argument to evaluate whether legally erroneous alternative theory was
harmless”].)
Here, video evidence presented to the jury showed defendant emerge from a
garage after Penna’s friend’s car drove by, stand outside by the garage door for about five
seconds, and go back inside. Then, about 11 seconds later, defendant emerged from the
garage for the second time, crouched/kneeled between the garage door and a parked car
for five or six seconds, then stood up and shot multiple times at Penna’s car as it drove
by. The sole disinterested witness testified that he saw defendant “kind of waiting for the
car -- for a car to get there, to pass.”
Defendant testified that when he was in the garage waiting for his friend to give
him car keys and a cell phone (that defendant planned to give to his wife), a neighbor’s
daughter entered the garage, prompting defendant to “step[] out of the garage to try to
take whatever potential gunfire or whatever was going to happen, and keep it away from
her.” Defendant twice affirmatively disagreed with the prosecutor’s characterization that,
15
when he exited the garage the second time, he “crouched down low,” insisting that
“[w]hen [he] came out of the garage, [he] knew [Penna] was there with a gun.” As
Penna’s car approached, defendant saw his wife push his son to the ground, where his
daughter was sitting in a car seat, and defendant “st[ood] up out of the garage” and saw
Penna “pointing a gun outside his passenger window.” Seeing that, defendant tried to
shoot the gun out of Penna’s hand, as he “didn’t want [Penna] to shoot towards [him] and
[his] family.”
In closing argument, the prosecutor used the videotape evidence, played it again
for the jury, and contrasted the footage of an “ambush,” with defendant’s “utterly
unreasonable” version of events, saying: “How long was [defendant] hunkered down
there? How long is he squatting down there while . . . Penna is apparently pointing a gun
at his wife? That behavior, that body language, just utterly does not comport with the
story he is trying to spin for you in court.”
Given (i) the compelling video footage showing defendant crouching and waiting
for Penna’s car to approach (buttressed by disinterested eyewitness testimony that
defendant appeared to be waiting for the car), (ii) defendant’s implausible testimony,2
and (iii) the prosecutor’s closing argument that relied heavily on the video footage, we
conclude that any error as here alleged by defendant was harmless under any standard of
review.
2 Defendant’s testimony that he exited the garage to “take . . . gunfire . . . and keep
it away” from the neighbor’s daughter was implausible given the video footage showing
him crouching between a car and the garage door. A hidden figure does not draw
gunfire.
Defendant’s testimony that he (i) did not crouch down low, and (ii) “knew” Penna
was “there with a gun” and pointing it at his family when defendant left the garage the
second time, was implausible given the footage showing him crouching for at least five
seconds.
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II
The Firearm Enhancement
Defendant argues we should remand to permit the trial court to “consider imposing
sentence under . . . section 12022.53, subdivision (b) or (c) in lieu of the life term
imposed under subdivision (d).” Defendant further argues that, if we deem the claim
forfeited, trial counsel was ineffective in failing to preserve it. The People argue
defendant forfeited this claim by not raising it in the trial court, and that defendant cannot
show ineffective assistance of trial counsel.
We conclude defendant forfeited this claim on appeal and has not demonstrated
ineffective assistance of trial counsel.
A. Additional Background
At the sentencing hearing held on June 28, 2019, defense counsel asked the trial
court to “strike the use of the gun,” “under the new law that enables [a trial court] to
strike the use of the gun.” The trial court declined to strike the enhancement, explaining:
“I can’t see that that would be just in any way, to take away that gun allegation.
[Defendant] deserve[s] it, frankly, what [he] did.”
B. Analysis
Section 12022.53 provides three different sentence enhancements for the personal
use of a firearm in the commission of enumerated offenses: a 10-year enhancement for
the personal use of a firearm (§ 12022.53, subd. (b)); a 20-year enhancement for the
personal and intentional discharge of a firearm (§ 12022.53, subd. (c)); and a 25-year-to-
life enhancement for the personal and intentional discharge of a firearm causing great
bodily injury or death (§ 12022.53, subd. (d)). Section 12022.53, subdivision (h), in
effect at the time of defendant’s June 2019 sentencing, authorizes the trial court to strike
or dismiss an enhancement in the interest of justice pursuant to section 1385. Defendant
contends the trial court failed to recognize its discretion to strike the 25-year-to-life
enhancement under subdivision (d) and impose a lesser enhancement of 10 years under
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subdivision (b) or 20 years under subdivision (c). The record does not support
defendant’s contention.
Defendant’s argument for remand rests on People v. Morrison (2019) 34
Cal.App.5th 217 (Morrison), in which the court held that section 12022.53, subdivision
(h) allows a trial court, in the exercise of its discretion, to strike a greater firearm
enhancement and impose an uncharged lesser enhancement in the interests of justice
pursuant to section 1385. (Morrison, at pp. 220-223.) Unlike the defendant in Morrison,
defendant was charged with multiple firearm enhancements under section 12022.53,
subdivisions (b), (c) and (d), each of which was found true. Also, Morrison was
published more than two months before the sentencing hearing in this case. Thus, as
defendant acknowledges, trial counsel could have raised a Morrison argument at
sentencing. Failure to do so forfeits the issue on appeal. (People v. Scott (1994) 9
Cal.4th 331, 351.)
Defendant argues trial counsel was ineffective in failing to raise the issue at
sentencing. We disagree.
To prevail on a claim of ineffective assistance of counsel, a defendant must show
(1) counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms, and (2) the deficient performance prejudiced defendant.
(Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692 [80 L.Ed.2d 674]; People
v. Ledesma (1987) 43 Cal.3d 171, 216-218.) Regarding performance, if counsel’s
conduct can be reasonably attributed to sound strategy, a reviewing court will presume
that the conduct was the result of a competent tactical decision, and the defendant must
overcome that presumption to establish ineffective assistance. (People v. Fromuth (2016)
2 Cal.App.5th 91, 113.)
Trial counsel expressly asked the trial court to exercise its discretion to “strike the
use of the gun.” Defendant’s contention that “[t]here can be no rational tactical reason”
for counsel’s failure to argue for a lesser firearm enhancement is unpersuasive, because
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trial counsel could have reasonably believed that defendant had most to gain by framing
the trial court’s exercise of discretion as an “all-or-nothing” choice between a 25-year-to-
life enhancement and no enhancement at all. If the trial court had been inclined to
believe the 25-year-to-life enhancement was too harsh, the court might have stricken the
enhancement entirely, reducing defendant’s sentence for attempted murder from 32 years
to life to 7 years to life. In contrast, an argument the trial court select one of the lesser
enhancements might have produced a sentence of 17 years to life or 27 years to life. We
cannot say trial counsel acted unreasonably in pursuing a strategy designed at achieving
the best possible outcome for his client. We therefore reject the claim of ineffective
assistance of counsel.
Further, nothing in the record suggests the trial court was unaware that striking the
25-year-to-life enhancement might leave the 20- and 10-year enhancements on the table.
We presume the trial court knew and properly applied the governing law and conclude
that remand is not required. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1390 [“Absent
evidence to the contrary, we presume that the trial court knew and applied the governing
law”]; Morrison, supra, 34 Cal.App.5th at p. 225 [“after the publication of our decision
today, the usual presumption that a sentencing court correctly applied the law will apply
and will ordinarily prevent remand where the record is silent as to the scope of a court’s
discretion”].)
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DISPOSITION
The judgment is affirmed.
/s/
HOCH, J.
We concur:
/s/
RAYE, P. J.
/s/
HULL, J.
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