People v. Summerville CA2/4 ( 2014 )

Filed 10/22/14 P. v. Summerville CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B248476
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA123921)
v.
RANDY SUMMERVILLE, et al.,
Defendants and Appellants.
APPEALS from a judgment of the Superior Court of Los Angeles County,
Allen J. Webster, Jr., Judge. Modified and affirmed as to Defendant Summerville.
Affirmed as to Defendant Chaffold.
Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and
Appellant Summerville.
Jolene Larimore, under appointment by the Court of Appeal, for Defendant and
Appellant Chaffold.
Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Mary Sanchez and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and
Respondent.
_______________________________
In a joint trial of three defendants, the jury convicted Randy Summerville on seven
counts pertaining to a May 5, 2011 robbery and kidnapping at the home of Miguel
Hernandez, and found personal firearm use and criminal street gang allegations to be true
(counts 3 to 9). The jury convicted Demarco Chaffold of a May 11, 2011 robbery of Jose
Castellon, and found the personal firearm use allegation to be true, but rejected the
criminal street gang allegation (count 11). The jury acquitted Traynell Coleman of all
charges.
In these appeals by Summerville and Chaffold, we modify Summerville’s sentence
pursuant to Penal Code section 654.1 The judgment is affirmed as to Chaffold, and
affirmed, as modified, as to Summerville.
PROCEDURAL BACKGROUND
In April and May 2011, the following incidents occurred near the Jordan Downs
Housing Projects in Los Angeles: (1) the April 17, 2011 robbery of Ervin Bromell
(counts 1 and 2); (2) the May 5, 2011 robbery and kidnapping at the Hernandez residence
(counts 3 through 10);2 (3) the May 11, 2011 robbery of Castellon (count 11); and (4) the
May 15, 2011 attempted murder of Fernando Aviles (counts 12 to 15). The prosecution
filed a 15-count information that charged Summerville, Chaffold, and Coleman with one
or more of these incidents.3
1
All further statutory references are to the Penal Code.
2
In addition to Hernandez, the other victims in the May 5 incident were George
Hernandez (Hernandez’s son) and William Soto (the father of Hernandez’s
granddaughter). Because Hernandez and his son share the same last name, we refer to
the son by his first name; no disrespect is intended.
3
The information contained the following counts:
Count 1 against Summerville and Coleman: Second degree robbery of Bromell on
April 17, 2011 (§ 211).
Count 2 against Coleman: Possession of a firearm by a felon on April 17, 2011
(§ 12021, subd. (a)(1)).
2
Summerville was charged in connection with three of the incidents, and convicted
as to one. The jury acquitted him of the April 17 robbery of Bromell (count 1), and failed
to reach a verdict as to the May 11 robbery of Castellon (count 11). But it convicted him
of the May 5 robbery and kidnapping at the Hernandez residence (counts 3 to 9),4 and
found personal firearm use and criminal street gang allegations to be true.
Chaffold was charged in connection with two of the incidents, and convicted as to
one. He was charged with the May 15 attempted murder of Aviles (counts 12-14), but
Count 3 against Summerville: Second degree robbery of Hernandez on May 5,
2011 (§ 211).
Count 4 against Summerville: Kidnapping of Hernandez to commit another crime
on May 5, 2011 (§ 209, subd. (b)(1)).
Count 5 against Summerville: Kidnapping of George to commit another crime on
May 5, 2011 (§ 209, subd. (b)(1)).
Count 6 against Summerville: First degree burglary of an inhabited dwelling
house (the Hernandez residence) with intent to commit larceny on May 5, 2011 (§ 459).
Count 7 against Summerville: First degree residential robbery of Hernandez on
May 5, 2011 (§ 211).
Count 8 against Summerville: First degree residential robbery of George on
May 5, 2011 (§ 211).
Count 9 against Summerville: First degree residential robbery of Soto on May 5,
2011 (§ 211).
Count 10 against Summerville: Unlawful driving or taking of a vehicle owned by
Hernandez on May 5, 2011 (Veh. Code, § 10851, subd. (a)).
Count 11 against Summerville and Chaffold: Second degree robbery of Castellon
on May 11, 2011 (§ 211).
Count 12 against Coleman (and dismissed at trial as to Chaffold): Attempted
willful, deliberate, and premeditated murder of Aviles on May 15, 2011 (§§ 664/187,
subd. (a)).
Count 13 against Coleman (dismissed at trial as to Chaffold): Shooting at an
occupied motor vehicle on May 15, 2011 (§ 246).
Count 14 against Coleman (dismissed at trial as to Chaffold): Attempted
carjacking of Aviles on May 15, 2011 (§§ 664/215, subd. (a)).
Count 15 against Coleman: Possession of a firearm by a felon on May 15, 2011
(§ 12021, subd. (a)(1)).
4
The jury acquitted Summerville of count 10, unlawful driving or taking of
Hernandez’s vehicle.
3
those allegations were dismissed as to him at trial. He was convicted of the May 11
Castellon robbery (count 11), with a personal firearm use finding. The jury rejected the
criminal street gang allegation.5
Summerville received a sentence of 25 years to life, with a minimum parole
eligibility date of 15 years. Chaffold received a sentence of 13 years. Both timely
appealed from the judgment. Facts relevant to their appeals are discussed below.
DISCUSSION
I
Summerville was convicted on counts 3 through 9 concerning the May 5 robbery
and kidnapping at the Hernandez residence. On appeal, he challenges his second degree
robbery (count 3) and first degree residential robbery (count 7) convictions as to
Hernandez, and first degree residential robbery conviction as to Soto (count 9). He also
contends he was sentenced in violation of section 654.
A. The May 5 Incident
At about 7:00 a.m. on May 5, 2011, Hernandez and his son George were getting
into Hernandez’s truck in front of their house when they were approached by two young
men. The taller man (later identified as Summerville) was carrying a revolver. He
ordered George out of the truck and took his music player. The shorter man took
Hernandez’s wallet, which contained $20.
The shorter man said, “Let’s walk inside the house and see what’s in there.”
Hernandez and George were forced to walk 30 or 40 feet to the front door of their house.
George rang the doorbell. Soto (the father of Hernandez’s granddaughter) opened the
door. The taller man said, “Don’t move or I will bust the cap.” George understood this
to mean I will “shoot you.”
5
Coleman was charged with two of the incidents, and acquitted of both. The jury
acquitted him of the April 17 robbery of Bromell (counts 1 and 2) and the May 15
attempted murder of Aviles (counts 12 through 15). Coleman is not a party to this
appeal.
4
Hernandez, George, Soto, and Soto’s daughter were taken to a bedroom and made
to sit on the floor. George’s cousin, Angel Hernandez, who was sleeping in the garage,
was also brought to the bedroom. During a 30-minute period, the men took turns holding
the gun and watching the victims, and going through the house and removing electronics
and other valuables. At one point, Summerville told George to unplug the computer or
he would “pop you on Geo” (a reference to a deceased Grape Street gang member).
After taking what they wanted, the men left the house. Hernandez went outside
and discovered that his truck was missing. He called the police and reported the incident.
His truck was later recovered in an alley.
Summerville’s fingerprint was found inside the home. Hernandez and George
identified Summerville during a photographic lineup and at the preliminary hearing.
George identified Summerville at trial, but Hernandez did not.
Summerville was convicted on counts 3 to 9 for second degree robbery of
Hernandez (count 3); kidnapping for robbery of Hernandez (count 4); kidnapping for
robbery of George (count 5); first degree burglary (count 6); first degree residential
robbery of Hernandez (count 7); first degree residential robbery of George (count 8); and
first degree residential robbery of Soto (count 9). The jury acquitted him of unlawful
driving or taking of Hernandez’s vehicle (count 10). The jury found criminal street gang
and personal firearm use allegations to be true.
B. Counts 3 and 7 Are Supported by Substantial Evidence
On appeal, Summerville challenges his convictions of both second degree robbery
and first degree residential robbery of Hernandez (counts 3 and 7), which he contends
involved a single indivisible course of conduct for which only one conviction is
permitted. We disagree.
Summerville relies on People v. Irvin (1991) 230 Cal. App. 3d 180 (Irvin), in which
the driver of a car was robbed of her purse and car during a single continuous event. The
defendant, who was convicted of robbery as to the purse and grand theft as to the
automobile, argued the takings constituted a single offense. The appellate court agreed
and reversed the grand theft conviction, concluding the robbery of the purse necessarily
5
included the theft of the vehicle: “We find no authority for the proposition that a robber
may be charged with and convicted of a separate robbery, or an additional offense of
grand theft, because he or she took more than one item from a solitary victim during a
single course of conduct.” (Id. at p. 185.)
In People v. Ortega (1998) 19 Cal. 4th 686, the Supreme Court reached a similar
conclusion, stating that “a defendant may be convicted of both carjacking and robbery, or
of both carjacking and theft, but may not be convicted of both robbery and theft based
upon the commission of a single act or course of conduct.” (Id. at p. 690.) The court
concluded that the critical issue was whether the robbery and theft “were based upon the
same conduct.” (Id. at p. 699.) The rule is that “‘[w]hen a defendant steals multiple
items during the course of an indivisible transaction involving a single victim, he
commits only one robbery or theft notwithstanding the number of items he steals.’
(People v. Brito (1991) 232 Cal. App. 3d 316, 326, fn. 8.)” (Ortega, supra, 19 Cal.4th at
p. 699.)
This case is distinguishable because the robbery of the wallet and the robbery of
household items were separated in time and place by the intervening crime of kidnapping
for robbery (§ 209, subd. (b)(1)). Hernandez’s wallet was taken while he was standing in
front of his house. He was then kidnapped and moved indoors to a bedroom where he
was kept under armed guard with additional family members—his granddaughter, her
father Soto, and George’s cousin Angel—while the intruders made off with electronics,
cash, and other items. The intervening kidnapping, sequestering, and additional victims
substantially increased the risk of physical or psychological harm beyond that necessarily
present in a robbery.6 (People v. Nguyen (2000) 22 Cal. 4th 872, 885–886.)
The facts of this case are similar to those in People v. Green (1996) 50
Cal. App. 4th 1076 (Green), which also involved a robbery, followed by a kidnapping for
sexual purposes, a sexual assault, and another robbery of the same victim. In that case,
6
Summerville does not challenge his convictions of kidnapping for robbery
(counts 4 (Hernandez) and 5 (George)).
6
the defendant stole the victim’s purse before he kidnapped her for sexual purposes. He
then sexually assaulted her in a secluded area. When he finally released the victim, he
stole her vehicle. As in this case, the defendant in Green argued on appeal that the initial
theft of the purse and the subsequent theft of the vehicle constituted a single offense. The
appellate court disagreed, stating that “[b]ecause the carjacking was thus separated in
time and place from the initial robbery of [the victim’s] purse and was interrupted by the
sexual attack . . . , the record contains sufficient evidence to support the trial court’s
explicit finding that the taking of the purse and the taking of the vehicle were separate
incidents which merited separate and additional punishment.” (Id. at p. 1085.)
The same is true here. As in Green, there is substantial evidence of two separate
robberies. The initial robbery was separated in time and place from the subsequent
robbery by the intervening crime of kidnapping, the addition of other family members,
and the holding of the victims under armed guard in an enclosed room. The initial
robbery was interrupted by these intervening events, which justified a finding that the
thefts of the wallet (count 3) and household items (count 7) constituted separate
incidents.7
C. Count 9 Is Supported by Substantial Evidence
Summerville challenges his conviction of residential robbery of Soto (count 9),
arguing that Soto did not have actual or constructive possession of any property in the
Hernandez residence. We disagree, and find the evidence supports Summerville’s
conviction.
“California follows ‘the traditional approach that limits victims of robbery to those
persons in either actual or constructive possession of the property taken.’ (People v.
Nguyen (2000) 24 Cal. 4th 756, 764.) ‘“Robbery is an offense against the person[.]’”
(People v. Miller (1977) 18 Cal. 3d 873, 880.) Accordingly, a victim can be any person
7
Summerville’s reliance on burglary cases such as People v. Woods (1998) 65
Cal. App. 4th 345; People v. Nunley (1985) 168 Cal. App. 3d 225, and In re Christopher J.
(1980) 102 Cal. App. 3d 76 is misplaced. The analysis of what constitutes an inhabited
dwelling for purposes of first degree burglary is not relevant to this discussion.
7
who shares ‘some type of “special relationship” with the owner of the property sufficient
to demonstrate that the victim had authority or responsibility to protect the stolen
property on behalf of the owner.’ (People v. Scott (2009) 45 Cal. 4th 743, 753.) Persons
with just such a special relationship include business employees and parents living with
their adult children. (Scott, supra, 45 Cal.4th at pp. 752, 753–754 . . . .)” (People v.
Ugalino (2009) 174 Cal. App. 4th 1060, 1064–1065.)
In People v. Weddles (2010) 184 Cal. App. 4th 1365, the issue was whether the
evidence supported a finding that Armando was a victim of a residential robbery at his
brother Alex’s apartment. The court held that Armando was a victim of residential
robbery, stating: “We reject as untenable defendant’s argument that Armando had no
concern about whether his brother’s savings were pilfered from the apartment that he
regularly visited. Armando’s close familial relationship with the owner of the property,
his regular presence at the apartment, and knowledge of where the property was hidden
by Alex establish that Armando had constructive possession of the cash.” (Id. at
p. 1370.)
In this case, the question is whether Soto was a victim of residential robbery at the
home of his daughter’s grandfather. The fact that Soto and his daughter were waiting at
Hernandez’s house while he drove his son to school indicates that Soto was a trusted
family member. The evidence supports a finding of a close familial relationship that
gave Soto the implied authority or responsibility to protect Hernandez’s home and
property. The evidence therefore was sufficient to support the jury’s finding that Soto
“was robbed of property over which he had constructive possession.” (People v.
Weddles, supra, 184 Cal.App.4th at p. 1371.)
D. Section 654
On count 4, kidnapping for robbery of Hernandez, Summerville received a base
term of 25 years to life, with a minimum parole eligibility date of 15 years.8 The court
8
The sentence on count 4 consisted of a life term with the possibility of parole
(§ 209, subd. (b)(1)), a minimum parole eligibility date of 15 years for the gang allegation
(§ 186.22, subd. (b)(5)), and a 10-year firearm enhancement (§ 12022.53, subd. (b)).
8
imposed concurrent sentences on count 3 (second degree robbery of Hernandez), count 5
(kidnapping for robbery of George), count 7 (residential robbery of Hernandez), count 8
(residential robbery of George), and count 9 (residential robbery of Soto).9 The court
stayed the sentence on count 6, first degree burglary, under section 654.10
On appeal, Summerville contends the sentences on counts 7 and 8 should have
been stayed under section 654. He argues that section 654 applies because the
kidnappings for robbery (counts 4 and 5) and the residential robberies (counts 7 and 8)
arose out of a single occurrence and were committed for the same purpose or objective—
to rob each victim of the valuables in the house. The Attorney General concedes the
issue.
We conclude that where, as here, the evidence shows that the kidnappings for
robbery (counts 4 (Hernandez) and 5 (George)) and the residential robberies of the same
victims (counts 7 (Hernandez) and 8 (George)) arose out of a single occurrence and were
committed for the same purpose or objective, section 654 prohibits multiple punishments.
9
On count 3, second degree robbery, the court imposed the midterm of three years
(§ 213, subd. (a)(2)), plus a 10-year gang enhancement (§ 186.22, subd. (b)(1)(C), and a
10-year firearm enhancement (§ 12022.53, subd. (b)), for a total concurrent sentence of
23 years.
On count 5, kidnapping for robbery of George, the court imposed a concurrent
sentence of 25 years to life.
On each of counts 7, 8, and 9, first degree residential robbery, the court imposed
the midterm of four years (§ 213, subd. (a)(1)(B)), with a 10-year gang enhancement
(§ 186.22, subd. (b)(1)(C)), and a 10-year firearm enhancement (§ 12022.53, subd. (b)),
for a total concurrent sentence on each count of 24 years.
10
Section 654 provides in relevant part that an “act or omission that is punishable
in different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.” “‘Section 654 bars multiple
punishments for separate offenses arising out of a single occurrence where all of the
offences were incident to one objective. [Citation.]’ [Citation.]” (People v. McKinzie
(2012) 54 Cal. 4th 1302, 1368.)
9
(People v. McKinzie, supra, 54 Cal.4th at p. 1368.) The sentences on counts 7 and 8
must be stayed pursuant to section 654.
We disagree, however, with Summerville’s contention that the concurrent
sentence on count 3, second degree robbery of Hernandez, also must be stayed under
section 654. For the reasons previously discussed, the initial taking of the wallet (count
3) and the subsequent taking of items inside the house (count 7) constituted separate
incidents. (Green, supra, 50 Cal.App.4th at p. 1085.)
E. The Amended Abstract of Judgment
The superior court filed an amended abstract of judgment as to Summerville on
November 25, 2013. On appeal, Summerville seeks a further correction of that amended
abstract, to delete the 10-year gang enhancements on counts 4 and 5, which the court
never imposed. The Attorney General agrees that the amended abstract must “be
corrected to delete the gang enhancement as to counts 4 and 5 and reflect that
Summerville is subject to a minimum 15-year parole eligibility date on count 4.” The
parties are correct.
On count 4, the court imposed the 15-year minimum term in section 186.22,
subdivision (b)(5), which is an alternate penalty for the underlying felony. (Robert L. v.
Superior Court (2003) 30 Cal. 4th 894, 900.) Where the court imposes the 15-year
minimum term under section 186.22, subdivision (b)(5), the 10-year gang enhancement
does not apply. (People v. Harper (2003) 109 Cal. App. 4th 520.) The 10-year
enhancements on counts 4 and 5 therefore must be deleted from the amended abstract of
judgment.
II
The jury convicted Chaffold of the May 11 robbery of Castellon (count 11), and
found the personal gun use allegation to be true. On appeal, he argues his conviction on
count 11 must be reversed because of instructional errors related to the dismissal of
counts 12 through 14, the attempted murder of Aviles. We conclude that Chaffold has
not established prejudicial error.
10
A. The Castellon Robbery
On May 11, 2011, Jose Castellon was in the alley behind his house. He was
approached by three men. One had a gun. The men robbed Castellon of his wallet and
ran away. Castellon reported the crime to police.
Castellon identified Chaffold in a photographic lineup, at the preliminary hearing,
and at trial. His stepsons, Andres Lomeli and Anthony Lomeli, who witnessed the
robbery, identified Chaffold in a photographic lineup. Andres Lomeli also identified
Chaffold at trial.
The jury convicted Chaffold of the May 11 robbery of Castellon (count 11). It
found the personal gun use allegation to be true, but rejected the criminal street gang
allegation.
B. The Aviles Attempted Murder
On May 15, Aviles was shot during an attempted carjacking. During the
investigation, Aviles identified Coleman as one of the three assailants. At the
preliminary hearing, Aviles also identified Chaffold. This led to the filing of a new
information that charged Chaffold with the May 15 incident (counts 12-14). Prior to jury
selection, Chaffold moved to suppress Aviles’s preliminary hearing identification, but the
motion was denied.
At trial, Aviles initially stood by his preliminary hearing identification of
Chaffold, but his testimony unraveled on cross-examination when he admitted that his
prior identification of Chaffold was mistaken. On redirect, Aviles testified that his prior
identification of Coleman also was mistaken. He then explained that he was not
mistaken, but was intimidated by the “ugly looks” he was receiving from someone in the
courtroom.
Following Aviles’s testimony, the prosecution informed the court outside the
jury’s presence that it had presented “all the evidence as to defendant Chaffold” and was
“unable to proceed” on counts 12, 13, and 14 against him. The court dismissed counts
12, 13, and14 as to Chaffold, but did not inform the jury of that fact.
11
At the conclusion of trial, the court instructed the jury that “counts 12, 13, and 14
charging defendant Chaffold with attempted willful, deliberate and premeditated murder,
shooting at an occupied car, and attempted carjacking, no longer need to be decided in
this case.” It instructed the jury not to speculate about or consider why it did not have to
decide those charges as to Chaffold. Chaffold did not object to those instructions, nor did
he request additional instructions as to counts 12, 13, and 14.
C. Chaffold’s Claim of Instructional Error
On appeal, Chaffold seeks a reversal of his conviction on count 11, based on
alleged instructional errors concerning counts 12, 13, and 14. He argues that when
counts 12, 13, and 14 were dismissed, the trial court should have immediately informed
the jury of the dismissal, and immediately instructed the jury to disregard all evidence
(and any future evidence) implicating him in the Aviles incident. He also argues that at
the end of the trial, the court should have instructed the jury not to consider any evidence
regarding the Aviles incident in determining his guilt of the May 11 robbery of Castellon.
He contends the omission of these instructions was prejudicial to his defense on
count 11.
The record fails to show that Chaffold requested the omitted instructions.
“‘Generally, a party may not complain on appeal that an instruction correct in law and
responsive to the evidence was too general or incomplete unless the party has requested
appropriate clarifying or amplifying language.’ (People v. Andrews (1989) 49 Cal. 3d
200, 218.)” (People v. Hudson (2006) 38 Cal. 4th 1002, 1011–1012.)
Chaffold fails to provide authority for the proposition that the omitted instructions
should have been given on the court’s own motion. “‘It is settled that in criminal cases,
even in the absence of a request, the trial court must instruct on the general principles of
law relevant to the issues raised by the evidence. [Citations.] The general principles of
law governing the case are those principles closely and openly connected with the facts
before the court, and which are necessary for the jury’s understanding of the case.’
(People v. St. Martin (1970) 1 Cal. 3d 524, 531.)” (People v. Najera (2008) 43 Cal. 4th
1132, 1136.)
12
The issue is whether the trial court adequately instructed the jury on the general
principles of law relevant to the issues raised by the evidence. The jury was instructed in
relevant part that “counts 12, 13, and 14 charging defendant Chaffold with attempted
willful, deliberate and premeditated murder, shooting at an occupied car, and attempted
carjacking, no longer need to be decided in this case.” It was also instructed to “decide
each charge for each defendant separately,” and to not speculate as to why it did not have
to decide counts 12, 13, and 14 as to Chaffold.
We do not find, nor does Chaffold argue, that the instructions were erroneous. We
believe that a reasonable jury, taking the instructions as a whole, would have understood
it was not to consider evidence on the dismissed counts in determining Chaffold’s guilt as
to the remaining count. It is not reasonably likely the jury misunderstood its duty to not
consider or speculate as to why counts 12, 13, and 14 were no longer at issue as to
Chaffold. We are not persuaded the jury ignored the instructions and speculated that
Chaffold had “pled guilty” to counts 12, 13, and 14. On the contrary, “‘[w]e presume
jurors ‘generally understand and follow instructions.”’ (People v. Myles (2012)
53 Cal. 4th 1181, 1212.)” (People v. Jackson (2014) 58 Cal. 4th 724, 767, fn. omitted.)
In an effort to show prejudice, Chaffold points to the jury instruction that “[i]n
deciding whether the People have proved their case beyond a reasonable doubt, you must
impartially compare and consider all the evidence that was received throughout the entire
trial.” Based on this instruction, he suggests the jury improperly considered evidence that
he and Coleman had attempted to kill Aviles “within days of the other charged offense in
which it was alleged that [he] used a firearm.” He argues that because the attempted
murder evidence was inflammatory and appealed to the passion of the jurors, he was
wrongly convicted of robbing Castellon.
The jury verdicts, however, do not indicate the jurors had a strong emotional
reaction to the evidence. On the contrary, the jury failed to reach a verdict as to
Summerville on count 11 (the May 11 robbery of Castellon), and it acquitted him of
count 1 (the April 17 robbery of Bromell). It also acquitted Coleman of counts 1 and 2
(the April 17 robbery of Bromell and possession of a firearm by a felon), and of counts
13
12, 13, 14, and 15 (the attempted murder, shooting, attempted carjacking of Aviles, and
possession of a firearm by a felon). And it rejected the gang allegation against Chaffold
in count 11.
The record supports Chaffold’s conviction of the May 11 robbery of Castellon.
The jury reasonably relied on the eyewitness trial testimony of Castellon and his stepson
who identified Chaffold as one of the perpetrators. A fair reading of the record persuades
us the jury was not swayed by passion or prejudice, but gave a full and fair evaluation of
the evidence.
Chaffold argues that after counts 12, 13, and 14 were dismissed against him, “the
trial continued with jurors believing [he] was charged with the serious offenses involving
Aviles,” that “[w]itnesses testified regarding the offense,” and that witnesses “were cross-
examined about the identifications of the perpetrators.” The record shows, however, that
additional evidence was presented against Coleman, who was still a defendant as to the
Aviles incident, but not against Chaffold. Although Los Angeles Police Department
Officer Ryan Moreno testified about the photographic lineups that were shown to Aviles,
Moreno was careful to explain that Chaffold was not included in any of those
photographs.
In our view, it is not reasonably probable that the jury would have reached a
different result on count 11 if it had been instructed immediately upon the dismissal of
counts 12, 13, and 14 to disregard all evidence (and future evidence) implicating
Chaffold in the Aviles incident, and to not consider evidence regarding the Aviles
incident in determining Chaffold’s guilt of the May 11 robbery of Castellon.
Accordingly, we find that any conceivable error in failing to provide these instructions
was harmless.
Finally, we turn to Chaffold’s related claim of ineffective assistance of trial
counsel. “A claim of ineffective assistance of counsel has two components: ‘“First, the
defendant must show that counsel’s performance was deficient. This requires showing
that counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment. Second, the defendant must show
14
that the deficient performance prejudiced the defense. This requires showing that
counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.” [Citation.] [¶] To establish ineffectiveness, a “defendant must show
that counsel’s representation fell below an objective standard of reasonableness.”
[Citation.] To establish prejudice he “must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” [Citation.]’ (Williams v. Taylor (2000) 529 U.S. 362, 390–391, citing
Strickland v. Washington (1984) 466 U.S. 668, 694; In re Jones (1996) 13 Cal. 4th 552,
561.)” (In re Vargas (2000) 83 Cal. App. 4th 1125, 1132–1133.) “Our review of an
attorney’s performance is a deferential one. For example, ‘“strategic choices made after
thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable. . . .” [Citation.]’ (In re Cudjo (1999) 20 Cal. 4th 673, 692.)” (Id. at
p. 1133.)
Chaffold contends his attorney was constitutionally ineffective for failing to
request that the omitted instructions be given. Even assuming for the sake of argument
that counsel should have requested those instructions, their absence was harmless. We
therefore reject Chaffold’s claim of ineffective assistance of counsel.
15
DISPOSITION
As to Chaffold, the judgment is affirmed. As to Summerville, the sentences on
counts 7 and 8 are stayed pursuant to section 654. A corrected abstract of judgment is to
be prepared, which should reflect a 15-year minimum parole eligibility on count 4
(§ 186.22, subd. (b)(5)), but no gang enhancement on counts 4 or 5. The clerk is directed
to transmit a copy of the corrected abstract to the Department of Corrections and
Rehabilitation. The judgment, as modified, is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
WILLHITE, J.
MANELLA, J.
16