People v. Holley CA3

Filed 7/27/15 P. v. Holley 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C073773
Plaintiff and Respondent, (Super. Ct. No. 11F05963)
v.
DEANGELO LAMAR HOLLEY,
Defendant and Appellant.
Defendant DeAngelo Lamar “Manny” Holley appeals from a judgment of
conviction following a jury trial. Defendant was convicted of attempted murder without
premeditation (Pen. Code, §§ 187, subd. (a), 664)1 and discharging a firearm at an
inhabited house. (§ 246.) The jury also found true enhancements on both counts for
personally discharging a firearm causing great bodily injury (§ 12022.53, subd. (d)) and
personally and intentionally discharging a firearm (§ 12022.53, subd. (c)), and that he
committed both offenses for the benefit of, at the direction of, or in association with the
Gunz-Up criminal street gang. (§ 186.22, subd. (b)(1).)
1
Further undesignated statutory references are to the Penal Code in effect at the time of
the charged offenses.
1
At trial, both the People and defense counsel offered into evidence posts defendant
made to his Facebook account. On appeal, defendant contends that: (1) the trial court
erred in admitting into evidence highly prejudicial bad character evidence in the form of
these Facebook posts; (2) the prosecutor committed misconduct in cross-examining him
by deliberately eliciting impermissible bad character evidence and by use of racially
offensive language from the Facebook posts; (3) he was denied his right to the effective
assistance of counsel by defense counsel’s failure to object to the admission of the bad
character evidence, failure to request a limiting instruction as to that evidence, and failure
to object to the prosecutor’s misconduct; and (4) the trial court imposed an unauthorized
sentence of seven years to life on count one since the allegation that the attempted murder
was willful, deliberate, and premeditated was found not true.
We conclude that defendant’s arguments regarding the trial court’s admission of
the challenged evidence and prosecutorial misconduct have been forfeited because they
were not raised before the trial court. We further conclude that defendant has failed to
show that he received constitutionally ineffective assistance of counsel. We agree with
defendant that the sentence imposed on count one was unauthorized, an error which the
trial court has since corrected.
We affirm the judgment as modified by the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
The Prosecution’s Case
Gang Affiliation and the Battery on Defendant’s Sister
Detective Scott MacLafferty testified as both the lead detective in the case and as
an expert on African-American criminal street gangs in Sacramento. MacLafferty opined
that defendant was a member of the Gunz-Up criminal street gang. MacLafferty based
his opinion on defendant’s own statements, the fact that defendant’s brother Deandre
Duckett was a Gunz-Up member, and prior police contacts with defendant and other
Gunz-Up members. On cross-examination, MacLafferty conceded that defendant had no
2
gang tattoos, that he had not seen any school records indicating gang involvement by
defendant, and that law enforcement officers had never validated defendant as a gang
member.
MacLafferty testified that Keon Jackson (Keon) and Earl “EJ” Jackson (EJ), who
were brothers, were members of the Guttah Boyz street gang, a rival of Gunz-Up. Law
enforcement officers had validated Keon as a Guttah Boyz member. Keon testified that
he “claim[ed]” Guttah Boyz. EJ had acknowledged that he was affiliated with the Guttah
Boyz, had repeatedly mentioned his affiliation with the Guttah Boyz on Facebook and
other online forums, and appeared in photographs making Guttah Boyz hand gestures.
Keon was dating defendant’s sister, Anjonnai Holley. On August 20, 2011,
Anjonnai was at Keon’s house. At approximately noon, she had an argument with Cory
Lacy, Keon and EJ’s cousin. According to MacLafferty, Lacy was “associated to
Guttah.” In a police interview, EJ stated that during the argument, Anjonnai said,
“ ‘Fuck, where we from we’ll do whatever,’ ” and “ ‘Guns up.’ ”2 Anjonnai also said to
Lacy, “ ‘Fuck your brother . . . I don’t care if he get killed.’ ” Lacy responded, “Guns
down,” which constitutes an insult or threat to Gunz-Up members, and he punched
Anjonnai in the face.
Keon and Melisha Estes, another cousin of Keon and EJ, entered the room and
found Anjonnai crying and bleeding from her nose or mouth. Keon told her to go home
because she was making a scene and “talkin’ reckless.” According to a statement EJ gave
to one of the first police officers on the scene, as Anjonnai left, she said something like,
“I’m gonna go get my brothers to come after you . . . .”3 However, in his interview with
2 An audio recording of this interview was admitted into evidence and played for the
jury.
3 This statement was made by EJ to the officer “almost immediately” after the officer
arrived on the scene at 2:11 p.m.
3
MacLafferty, when asked if Anjonnai had said she was going to get her brothers, EJ
responded, “Not really.”
Anjonnai and Lacy continued to yell at each other. Estes asked Kendra Dawson to
drive Anjonnai home. Estes testified that Anjonnai “was just upset, so I was grabbing her
and getting her in the car.” Estes, who rode in the car with Anjonnai and Dawson,
testified, “I was telling her . . . it was wrong. I told her that Keon was wrong for not . . .
sticking up for her. . . . [¶] . . . [S]he was crying and . . . we was trying to calm her
down.” Estes testified that Anjonnai said she was going to tell her brothers about being
punched, but would not tell them to go to Keon’s house. Estes denied that Anjonnai said
she was going to have her brothers go to Keon and EJ’s house, explaining, “we wouldn’t
have continued on taking her home.”
Dawson testified she was asked to take Anjonnai home. Anjonnai was already
sitting in the car waiting to leave when Dawson came out. Dawson, who had been
sleeping, said she did not know what had happened before Anjonnai got in the car.
Anjonnai did not discuss with Dawson getting her brothers to come back and get
someone; she was sad, crying, and quiet. Dawson and Estes dropped Anjonnai off at
home.
The Shooting and the Investigation
Within an hour after Dawson and Estes returned from driving Anjonnai home, they
were standing in front of the house with Keon and EJ when a young African-American
male with a white T-shirt covering his face approached them, carrying a shotgun. He
pointed the shotgun at Keon and fired it once, hitting Keon. The shotgun blast struck
Keon in the head, neck, and bicep. The shooter left quickly on foot. Shortly thereafter, a
witness observed a gold-colored car driving rapidly away.
Police arrived at the scene shortly after 2:00 p.m., minutes after the shooting was
reported. An ambulance took Keon to the hospital.
4
Some time after the shooting, Keon sent a text message to “[a]n old partner, an old
friend,” “E Wally.” In the text message, Keon said, “Dis da nigga that shot me,” and
attached defendant’s photo. At trial, Keon testified he could not remember anything
about the shooter’s appearance except for a T-shirt covering his face. Keon testified he
sent the text message because he was angry, and other people had told him defendant was
the shooter.
On the afternoon of the shooting, police saw a gold-colored Oldsmobile parked in
defendant’s driveway. The car belonged to Janesha Hemstead,4 who has a child with
defendant’s brother Deandre Duckett.
EJ told Officer Magny that a T-shirt covered the shooter’s face except for his eyes.
However, EJ identified defendant as the shooter, telling Magny that he knew it was
defendant based on the shooter’s “mannerisms, skin tone, the way he looked, the way he
walked, everything about him.” EJ said defendant’s “face was covered up, but it was
him.” This statement was made by EJ to the officer almost immediately after the officer
arrived on the scene at 2:11 p.m.
In a later interview, -- this one audio recorded -- MacLafferty showed EJ a
photograph of defendant, and EJ identified him as the shooter.5 Unlike his statement on
the day of the shooting, EJ said he briefly saw defendant’s face, telling MacLafferty that,
as “soon as he hit the corner his mask fell off his face.”
The day after the shooting, EJ sent a Facebook message to a friend saying the
shooter was “[t]his bitch nigga named Manny.” Defendant was also known as Manny.
Two days after the shooting, exchanging Facebook messages with another friend, EJ
4 Also spelled “Jonesha” in the reporter’s transcript.
5 The recording of this interview was admitted into evidence and played for the jury. A
transcript was distributed to the jurors.
5
referred to “this bitch” getting punched, and stated, “she said she was goin’ to have her
brother come over here, and they did.”
At trial, EJ testified that he did not remember anything at all about the day of the
shooting, who shot Keon, or what he told police. He testified that he did not recall
making any of the statements on the audio recordings, and even denied that the voice on
the audio recordings was his. When asked whether the person answering questions on
the audio recording was being a “snitch,” EJ testified that he did not know what the word
snitch meant. However, in September 2011, EJ exchanged private Facebook messages
with a friend about an apparently unrelated matter, in which he said, “Because a snitch
me? Never. [¶] . . . [¶] For real, snitches really get killed faster than anyone else.”
The day of the shooting, Estes described the shooter to Officer Malott as a skinny
African-American male, 16 to 17 years old, approximately 5'8" tall, with big eyes. A
white T-shirt covered much of the shooter’s face. Estes told Malott that defendant was
the shooter, and that he was a Gunz-Up member.
Several days after the shooting, MacLafferty showed Estes a photo lineup with
photographs of defendant and five other individuals who fit the description witnesses had
given of the shooter. Prior to displaying the lineup, MacLafferty used a Sharpie marker
to color in portions of the photographs, obscuring the parts of the individuals’ faces
which would have been covered by the white shirt worn over the shooter’s face. Estes
initially said none of the individuals in the photos could be the shooter because the
shooter didn’t have hair, whereas the men in the photos all had dreadlocks or hair sticking
up. MacLafferty told Estes to ignore the hair, and she then selected the photograph of
defendant.
At trial, Estes testified to the same description of the shooter, and agreed that
defendant matched the description. However, she testified that she was not certain
defendant was the shooter. She testified that, on the day of the shooting, she identified
defendant because she was familiar with him, the shooter and defendant had similar
6
builds, there were already tensions between defendant and Keon, Anjonnai had been hit
earlier that day, and Estes heard her relatives saying that the shooter must have been one
of Anjonnai’s brothers.6
Additional Gang Evidence
Detective MacLafferty testified that G-Mobb is a South Sacramento African-
American street gang. Subsets of G-Mobb included Guttah Boyz and Starz or Starz-Up,
although Starz has grown so big as to now constitute its own gang. Guttah Boyz
consisted of a number of younger individuals, 14 to 16 years old, who took on this name,
and were, in many cases, younger brothers of G-Mobb or Starz members. G-Mobb,
Starz, and Guttah Boyz shared common enemies. Oak Park Bloods, a Blood-based rival
gang to G-Mobb, had subsets including Fourth Avenue Bloods or Fuck a Bitch, also
known as FAB, and Zilla or Ridezilla. Gunz-Up started when some individuals broke off
from Starz, and eventually became aligned with FAB.
MacLafferty testified that, for a gang member, a gun is a status symbol. He
continued, “that gun benefits them as a gang member because it gives them status, it
gives them respect within their clique, within their gang. And it can be used as a sign of
intimidation to other gangs. And other people, not only gangs but . . . people in the
community . . . .” MacLafferty testified that, in gang culture, everybody “constantly has
to be looking over their shoulder . . . worrying about if they are going to get -- it’s called
getting caught slippin’, that’s without being with more of your partners and/or not having
a gun yourself, and you get caught by other folks on that, that’s a constant worry.”
MacLafferty testified, “Gang members don’t view respect like you and I would.
. . . [¶] Gang members[’] respect or disrespect is based on fear and intimidation. And
6 Estes testified that she was together with Dawson and EJ when she gave her statement
to Officer Malott. Malott testified that he separated Estes from the others when she took
her statement. Dawson testified that the police “separated everybody” before taking their
statements.
7
forcing the other side to respect you based on that fear and intimidation which often
involves violence. [¶] So, a lot of those cases, motive wise are based on that fear and
intimidation.” Asked about circumstances mirroring those at issue here, MacLafferty
testified that “it could be that if one sister was assaulted by a rival gang member, could be
viewed as one of those disrespect things. And therefore requiring a response.”
MacLafferty continued, “if you don’t respond to that level or form of disrespect . . . for
one thing the rival gangs are going to look at you as what they call soft or what they call a
punk. [¶] But your clique or your gang says okay, you were disrespected . . . , what are
you going to do about it. So you will be seen at it on both sides.”
Detective MacLafferty testified that gangs label people who speak to police or
testify against gang members as “snitches.” People who cooperate with police may be
threatened or assaulted. Gang members are opposed not only to rival gang members
testifying against them, but also to their own members testifying against rivals. It would
not surprise MacLafferty if a person who made an earlier statement to the police denies
having made that statement during courtroom testimony and he has seen it happen.
MacLafferty said that gang members sometimes have multiple motives for
committing shootings. Here, the incident involving defendant’s sister cannot be
separated out from the gang motivation because the motives are intertwined.
MacLafferty testified that “Marquice Wallace, who was Keon and [EJ’s] brother, killed
Marque Johnson who is [defendant’s] friend and then contacted with him here.”
MacLafferty testified that he interviewed defendant in connection with that investigation
and defendant told him that Gunz-Up has a “funk with Starz.”7 MacLafferty opined that
there was both a gang and very strong personal reason involving defendant’s sister for
7 MacLafferty also testified that the earlier shooting followed a shooting that occurred
five days before which involved some of the same individuals. He also said that
defendant was shot by Starz gang members in 2009.
8
this shooting. Lacy, the person who assaulted defendant’s sister, is a member of Guttah
and his assault was a reaction to her disrespecting his gang by saying, “Gunz-Up.” And
Gunz-Up was disrespected when defendant’s sister was assaulted.
MacLafferty was of the opinion that this shooting was committed for the benefit of
the Gunz-Up criminal street gang.
Cell Phone Evidence
The prosecution presented evidence of defendant’s cell phone use before and after
the shooting. Prior to the shooting, between 1:00 and 1:30 p.m., there were a series of
calls between defendant’s cell phone and those of Anjonnai and Duckett. At 1:30 p.m.,
defendant called his friend Javonte Brown. At 1:41 p.m., a text message was sent from
defendant’s cell phone. Then, for over 20 minutes, there was no outbound activity on
defendant’s phone. At 2:04 p.m., six minutes after the shooting was reported to police,
defendant sent a text message. At 2:06 p.m., defendant received a call that was routed to
voicemail, at which time his cell phone was connected to a cell tower approximately 2.65
miles from Keon’s house. At 2:11 p.m., defendant received a phone call from Brown
which lasted 53 seconds. Between 2:12 and 2:58 p.m., defendant’s cell phone was
connected to a series of cell towers, indicating that defendant was traveling. At
2:58 p.m., defendant’s cell phone was connected to a tower approximately one-half mile
from his home. The parties stipulated that the distance from Keon’s house to defendant’s
house was between 7.0 and 7.8 miles.
Defendant’s Facebook Posts
During the investigation, EJ and Estes brought to Detective MacLafferty’s
attention certain posts by defendant to his Facebook account which they felt were related
to the shooting. Estes testified that these posts were a reason she had believed defendant
to be the assailant. MacLafferty obtained a warrant for defendant’s Facebook information
for the time period from August 20 to August 25, 2011.
9
During its case-in-chief, the prosecution presented two of defendant’s Facebook
posts. In one, defendant wrote, “U heard I got that chop, tho, while I’m knockin’at your
front door. Bullet to your skull, ma, your brains looks like gumbo.” Detective
MacLafferty testified that “chop” is slang for a sawed-off shotgun, and that “chopper” is
slang for an automatic rifle.
In the other Facebook post introduced during the prosecution’s case-in-chief,
defendant stated, “I gave ’em two to the head, I only knocked twice, hit ’em with the
antifreeze at the stoplight. No need for a watch in the fast . . . life.”
MacLafferty testified, “These are two that the witnesses felt were relevant to the
incident of Keon getting shot. They brought them to my attention. And the correlation
between him getting shot . . . , the shooting to the head, turn your brains like gumbo. He
got shot in the head.”
On cross-examination, defense counsel asked MacLafferty how he reconciled the
inconsistencies between the second Facebook post and the facts that Keon was only shot
once, and not at a stoplight. MacLafferty responded, “I don’t.”
Defense counsel introduced two more of defendant’s Facebook posts while cross-
examining MacLafferty. On August 21, 2011, defendant posted, “Honey bun drum in the
thang about as tall as me, antifreeze issue, you suckas can get it for free.” On August 22,
2011, defendant posted: “Like a scarecrow way niggas scare for, are with the airholes,
leave a nigga with airholes, I’m hopping out the Vans but not the shoes ‘cause I don’t
wear those.” Defense counsel asked MacLafferty if he had “an opportunity to look at . . .
a broader view” of defendant’s Facebook posts beyond the days encompassed by the
search warrant “to see if these posts were in fact unusual.” MacLafferty had not.
MacLafferty also acknowledged that defendant told him that the posts were rap lyrics.
10
Defendant’s Case
Defendant’s Testimony
Defendant testified that he spent the night before the shooting at the house of
Brandi Edd, his brother’s girlfriend. Rakeem Collins and his girlfriend were also there.
Defendant testified that he walked home from Edd’s house at approximately 1:00 or 2:00
on the afternoon of the shooting.
At 3:04 and 3:26 p.m., defendant exchanged text messages with his friend Javonte
Brown, indicating that he was about to pick Brown up. Later, defendant went with
Hemstead to pick up Brown, and then they returned to defendant’s house. Defendant,
Brown, and Anjonnai walked to a 7-Eleven store, and, when they returned, police were at
defendant’s house.
Asked if he knew exactly where he was at the time the shooting occurred,
defendant replied, “I think I was at Brandi’s house but I really don’t know. Probably at
home. I don’t remember.” He also testified that, at the time of the shooting, “I was at my
house but I didn’t really know what time it was so I don’t know if I was, but I feel I was
at my house . . . .”
Defendant testified that, when he spoke on the phone with Anjonnai and Duckett
before the shooting, there was no discussion about Lacy punching her. Anjonnai was
simply trying to get a ride home. Defendant did not learn that Anjonnai had been
punched until sometime after he arrived at home on the afternoon of the shooting.
Defendant acknowledged that, in an interview on August 25, 2011, he told
MacLafferty that he was at Priscilla Williams’s house the day of the shooting. However,
at trial, he admitted that was a lie.
During the interview, defendant told MacLafferty that he only wears bright
clothing. However, defendant acknowledged that MacLafferty had not said anything
about what the shooter was wearing. Defendant testified that he did not know the shooter
was described as wearing dark clothing. He explained, “I feel that if somebody were able
11
to describe me or anything, they would say that I have bright clothing on because that’s
all I have is bright clothes.” The prosecutor on cross-examination continued,
“Q So you just volunteered that bright clothing comment out of nowhere?
“A Yes.
“Q Just because?
“A Yes.”
Defendant had also mentioned to MacLafferty during the interview that the
shooter’s face was covered with a white T-shirt, although MacLafferty had not mentioned
this detail either. Defendant testified that he learned of this description on EJ’s Facebook
page, and that EJ “possibly deleted it or he did delete it.”8
At trial, defendant admitted that, during the interview, he had lied to MacLafferty,
explaining that MacLafferty was accusing him of something he did not do. Defendant
did not believe he would be arrested, so he “tried to get out of it by saying anything.”
Defendant also testified that he lied to MacLafferty about his whereabouts on the day of
the shooting because he “didn’t want to get the people that [he] really [was] with in
trouble.” The prosecutor asked defendant why, even after MacLafferty indicated
defendant would be arrested for the shooting, he did not tell MacLafferty that he had been
at Brandi Edd’s house as he claimed, since she and the others who were there could have
provided him with an alibi. Defendant responded, “because maybe those people
wouldn’t tell them that, sir. Not everybody wants to talk to the cops.”
8 MacLafferty testified that Facebook had provided him with records of EJ’s account
activity from the date of the shooting until February 7, 2012, and that the records
contained no statements about the shooter covering his face with a white T-shirt.
However, he also testified that he could not recall if private messages sent to and from
EJ’s account referred to a white T-shirt. On cross-examination, MacLafferty conceded
that the search warrant did not include a request for deleted material, and it was possible
that the information provided by Facebook was incomplete.
12
Defendant subsequently testified that he “decide[s] to lie when [he] feel[s] like
lyin’.” He further testified, “I’m a kid, I’m going to lie if I feel like lyin,’ ” and “if I don’t
want to tell you anything, I’m gonna tell you a lie.”
Defendant testified he was not a gang member. He testified he was in the Valley
Hi Piru gang from when he was 13 years old, but he left that gang in 2009 or 2010.
Defendant testified he had never been a member of Gunz-Up, but he spent time with
Gunz-Up members who were friends of his or his brother’s. He explained a prior
statement he made, testifying that in 2010, he had told police that he, his brother, and
another individual were the only Gunz-Up members at a house party where a shooting
occurred because that was how rival gang members viewed him, and because his brother
and his friend were Gunz-Up members.
When asked by the prosecutor whether he used his phone about every five minutes
for placing calls or sending text messages, defendant responded, “Yes.” The prosecutor
asked defendant why there was no activity on his cell phone from approximately
1:45 p.m. until 2:06 p.m. on the day of the shooting, and defendant responded that,
because he uses his phone frequently, it “tends to . . . die,” and he has to turn it off and
turn it back on some time later.
Defendant testified that the Facebook post which read, “U heard I got that chop,
tho, while I’m knockin’at your front door. Bullet to your skull, ma, your brains looks like
gumbo,” was from a rap that he wrote. He posted it because he “just like[d] raps and
violent licks and stuff.” Defendant testified that the post had nothing to do with Keon.
With regard to the post which read, “I gave ’em two to the head, I only knocked
twice, hit ’em with the antifreeze at the stoplight. No need for a watch in the fast . . .
life,” defendant testified that it was song lyrics by an artist named HD. Again, defendant
testified that the lyric had nothing to do with Keon.
Defense counsel introduced several more Facebook posts during defendant’s direct
examination. Defendant posted, “I ride wit the lama, I slide with the lama, you don’t
13
want no problem, a rockin’ like a lama.” Defendant testified that this was from a song by
Lil Blood.
Defendant posted, “Eat u like a viper. Ima lover not a fighter, but behind close
doors we can get it sparkin like a lighter.” Defendant testified that this was a rap that he
wrote. On cross-examination, defendant agreed that “sparkin like a lighter” was about
shooting a gun, and that a lot of lyrics he liked were about guns.
Defendant also posted, “.45 snap ya cap like a can of Sprite. I grip the hammie
tight, runnin’ from the flashy lights.” Defendant testified that this was from a song by
HD.
On June 29, 2011, defendant posted, “fresh bounce out the load, no ski masks with
a chop in my backpack smack, smack, catch me a slippin at Mc Donald’s on the Mack
block.” Defendant testified that this was another rap he wrote.
On February 22, defendant posted, “I tote two pistols, a 40 and a 9 with me” and
“Come take a ride with my Glock.” Defendant testified that both of these posts were
lyrics by rapper Sleepy D.
Defendant also posted rap lyrics by other artists on Facebook.
On cross-examination, defendant acknowledged an additional Facebook post.
This post read, “I’m inseparable from this Glock, emotional about my Glock, she’s
playin’ hard to get, make me chase.”
Verdict and Sentencing
The jury found defendant guilty of attempted murder and of discharging a firearm
at an inhabited house. However, the jury found not true the allegation that the attempted
murder was willful, deliberate, and premeditated. The jury found the other enhancements
to be true.
For the attempted murder conviction, the court initially sentenced defendant to
seven years to life, with a consecutive sentence of 25 years to life for the enhancement
pursuant to section 12022.53, subdivision (d). Pursuant to section 654, the court stayed
14
the sentence on the second count. The court struck the gang enhancements in the
interests of justice pursuant to section 186.22, subdivision (g). The trial court
subsequently amended the judgment, sentencing defendant to five years for attempted
murder, plus 25 years to life for the section 12022.53, subdivision (d), enhancement.
DISCUSSION
I. Claims Concerning Facebook Posts
Defendant argues that the trial court erred in admitting highly prejudicial bad
character evidence in the form of his Facebook postings, depriving him of a fair trial. He
also asserts that the prosecutor committed misconduct in cross-examining him by using
racially inflammatory language from his Facebook posts and by emphasizing the
improperly admitted bad character evidence. Defendant further asserts that, because his
trial attorney failed to object to the admission of this evidence and to the prosecutor’s
misconduct, and thus failed to preserve his contentions for appellate review, he was
denied the effective assistance of counsel. Defendant also contends that he was denied
the effective assistance of counsel by his attorney’s failure to request a limiting
instruction as to the Facebook posts.
As defendant acknowledges, he has forfeited his claims concerning the trial court’s
admission of evidence and prosecutorial misconduct by failing to raise them in the trial
court. We conclude that defendant was not denied the effective assistance of counsel
based on the failure to raise these claims in the trial court or based on the failure to
request a limiting instruction.
A. Forfeiture
“[A]s a general rule, ‘the failure to object to errors committed at trial relieves the
reviewing court of the obligation to consider those errors on appeal.’ [Citations.] This
applies to claims based on statutory violations, as well as claims based on violations of
fundamental constitutional rights. [Citations.]” (In re Seaton (2004) 34 Cal. 4th 193,
198.) Specifically with regard to defendant’s contention that the judgment should be
15
reversed due to the trial court’s erroneous admission of certain evidence, “ ‘[a] judgment
will not be reversed on grounds that evidence has been erroneously admitted unless
“there appears of record an objection to or a motion to exclude or to strike the evidence
that was timely made and so stated as to make clear the specific ground of the objection
or motion . . . .” (Evid. Code, § 353, subd. (a) . . . .)’ ” (People v. Pearson (2013) 56
Cal. 4th 393, 438, italics omitted.) “This gives both parties the opportunity to address the
admissibility of the evidence so the trial court can make an informed ruling, and creates a
record for appellate review. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 394,
pp. 444–445 [‘it is unfair to the trial judge and to the adverse party to take advantage of
an error on appeal when it could easily have been corrected at the trial’].)” (People v.
Davis (2008) 168 Cal. App. 4th 617, 627.)
Likewise, “trial counsel’s failure to object in a timely manner to asserted
prosecutorial misconduct also results in the forfeiture of the claim on appeal.” (People v.
Dykes (2009) 46 Cal. 4th 731, 757 (Dykes), citing People v. Stanley (2006) 39 Cal. 4th
913, 952.) “ ‘ “As a general rule a defendant may not complain on appeal of
prosecutorial misconduct unless in a timely fashion—and on the same ground—the
defendant made an assignment of misconduct and requested that the jury be admonished
to disregard the impropriety.” ’ [Citations.]” (People v. Tom (2014) 59 Cal. 4th 1210,
1238-1239.)
As noted, defendant concedes that his defense counsel did not object to the trial
court’s admission of the Facebook posts or to the prosecutor’s cross-examination.9
Indeed, with regard to the admission of evidence, defendant’s trial counsel did not merely
9
Objection to prosecutorial misconduct “may be excused if it would have been futile or
an admonition would not have cured the harm.” (Dykes, supra, 46 Cal.4th at p. 760,
citing People v. Hill (1998) 17 Cal. 4th 800, 820.) However, defendant does not assert on
appeal that objections would have been futile or that admonitions would not have cured
the harm.
16
abstain from objecting to the admission of two Facebook posts introduced in the People’s
case-in-chief; defense counsel expressly requested that “the records be admitted in their
entirety” and then offered into evidence two additional Facebook posts during his cross-
examination of MacLafferty, and several more posts during the direct examination of
defendant.
Based on defendant’s failure to object in the trial court to the Facebook posts
offered by the prosecution and his own admission into evidence of other Facebook posts,
defendant has forfeited his contentions concerning the admission of his Facebook posts
and the prosecutor’s cross-examination of him regarding that evidence. For the same
reasons, defendant has forfeited his claim that the trial court’s admission of the
challenged evidence violated his right to due process under the Fourteenth Amendment,
and rendered his trial fundamentally unfair.
B. Ineffective Assistance of Counsel
To establish 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, 687-688, 691-692 [80 L. Ed. 2d 674] (Strickland);
People v. Ledesma (1987) 43 Cal. 3d 171, 216-217 (Ledesma).) “ ‘Surmounting
Strickland’s high bar is never . . . easy.’ [Citation.]” (Harrington v. Richter (2011) 562
U.S. 86, ___ [178 L. Ed. 2d 624, 632] (Richter), quoting Padilla v. Kentucky (2010) 559
U.S. 356, ___ [176 L. Ed. 2d 284, 297].)
The reason why Strickland’s bar is high is because “[a]n ineffective-assistance
claim can function as a way to escape rules of waiver and forfeiture and raise issues not
presented at trial, and so the Strickland standard must be applied with scrupulous care,
lest ‘intrusive post-trial inquiry’ threaten the integrity of the very adversary process the
right to counsel is meant to serve. [Citation.] . . . It is ‘all too tempting’ to ‘second-
guess counsel’s assistance after conviction or adverse sentence.’ [Citations.] The
17
question is whether an attorney’s representation amounted to incompetence under
‘prevailing professional norms,’ not whether it deviated from best practices or most
common custom. [Citation.]” (Richter, supra, 178 L.Ed.2d at pp. 642-643.)
“ ‘Failure to object rarely constitutes constitutionally ineffective legal
representation . . . .’ ” (People v. Huggins (2006) 38 Cal. 4th 175, 206, quoting People v.
Boyette (2002) 29 Cal. 4th 381, 424.) “Moreover, ‘[i]f the record on appeal fails to show
why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel
was asked for an explanation and failed to provide one, or unless there simply could be
no satisfactory explanation, the claim must be rejected on appeal.’ ” (Huggins, at p. 206,
quoting People v. Kraft (2000) 23 Cal. 4th 978, 1068-1069 (Kraft).)
1. Facebook Posts Introduced by the Prosecution
a. Deficient Performance
The two Facebook posts challenged by defendant on appeal, which were
introduced during the prosecution’s case-in-chief, were both relevant and admissible as
admissions of guilt. (Evid. Code, § 1220.)
“ ‘Relevant evidence’ means evidence, including evidence relevant to the
credibility of a witness or hearsay declarant, having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the action.”
(Evid. Code, § 210, italics added.) Here, the circumstances of the Facebook posts and
similarities between the posts and the circumstances of shooting are such that the posts
had a tendency in reason to prove a disputed fact of consequence in this case, specifically
defendant’s identity as the shooter. Defendant uploaded the two Facebook posts offered
by the prosecution in the days immediately following the shooting. One post referred to
shooting someone in the head at a front door with a chop, slang for a sawed-off shotgun.
This post bears significant similarities to the shooting in this case, where Keon was shot
in the head in front of his house with a shotgun. The other post, among other things,
includes the statement “I gave ‘em two to the head . . . .” Particularly in light of the
18
timing of the posts and the surrounding circumstances, including the fact that
eyewitnesses had identified defendant as the shooter and that the victim was shot in the
head, these posts made by defendant to his Facebook account were relevant.
“Admissions that tend to prove the declarant committed a charged offense . . . are
not offered as other crimes evidence, and instead are offered simply as statements made
by a defendant that in and of themselves tend to prove he committed a charged offense.
Such statements are admissible to prove identity of the perpetrator . . . .” (People v.
Robinson (2000) 85 Cal. App. 4th 434, 445 (Robinson).)
In Robinson, the trial court admitted testimony of a woman who stated that the
defendant had told her, while in a car in Oxnard, that, “if something ever happened to her
he would get rid of her body by dumping it in Los Angeles.” (Robinson, supra, 85
Cal.App.4th at p. 444.) The defendant made this statement approximately five days after
the murder of the female victim, “who was from Oxnard and whose body was ‘dumped’
in a Dumpster in Los Angeles.” (Ibid.) The Court of Appeal upheld the admission of the
witness’s testimony as an admission by the defendant, observing, “[t]he fact that
defendant had the circumstances of the murder on his mind only days after committing it,
and could not keep himself from talking about the scenario of dumping a woman’s body
in Los Angeles, is highly relevant and can certainly be viewed as an indirect
‘acknowledgment’ of the crime.” (Id. at p. 445.) We conclude that defendant’s Facebook
posts here were likewise relevant as admissions.
As defendant emphasizes, there are a number of differences between the details of
the crime and the content of the Facebook posts. These differences included the number
of shots fired, the absence of evidence that the shotgun was sawed-off, the fact that the
shooter did not knock on the door (to the extent that this portion of the lyrics was literal),
and there was no stoplight at the scene.
We conclude that these distinctions did not render the Facebook posts irrelevant or
inadmissible, since the posts had some tendency in reason to establish that defendant was
19
the shooter. (See generally Evid. Code, § 210.) Rather, these differences went to the
weight to be accorded to this evidence, not its admissibility. (People v. Ochoa (2001) 26
Cal. 4th 398, 438 (Ochoa), abrogated in part on another ground in People v. Prieto (2003)
30 Cal. 4th 226, 263, fn. 14.) In Ochoa, the trial court permitted an expert to testify as to
the significance of the defendant’s tattoo on his forehead of the number “ ‘187,’ ” which,
according to the expert, corresponded to the Penal Code section proscribing murder. (Id.
at p. 437.) The defendant had added the tattoo after the charged homicides occurred.
(Ibid.) The California Supreme Court determined that the trial court properly found that
the tattoo constituted an admission of the defendant’s conduct, as well as a manifestation
of his consciousness of guilt. (Id. at p. 438.) Our high court further stated that the
ambiguities concerning the tattoo were addressed to “the weight of this evidence, not its
admissibility, which does not require complete unambiguity.” (Ibid.)
Similarly, in Kraft, supra, 23 Cal. 4th 978, the trial court admitted into evidence a
handwritten document containing “cryptic entries” which the prosecution characterized
as a “coded list of defendant’s [murder] victims.” (Id. at pp. 1032-1033.) The defendant
had argued that the list lacked probative value because any connection between the
entries on the list and the victims was speculative. (Ibid.) The California Supreme Court
concluded that the trial court could, in the exercise of its discretion, determine that the list
was relevant because it had a tendency in reason to prove a disputed fact of consequence.
(Id. at p. 1034.) Our high court concluded that the mere fact that the entries were
“idiosyncratically coded and required interpretation to be understood by a reader” did not
mean that “to ascribe a particular meaning to a given entry necessarily [would be]
speculative.” (Id. at p. 1035.) Our high court further concluded that “[p]resumably the
jury accorded no weight to any entry it found did not relate to a charged victim.” (Ibid.)
As in the foregoing cases, we conclude that the evidence at issue here, the
Facebook posts, was relevant and admissible as admissions by defendant, and that any
20
discrepancies between these statements and the shooting went to the weight to be
accorded to the evidence rather than to its admissibility.
The Facebook posts were also admissible as relevant to prove that possession and
use of guns were among the primary activities of the Gunz-Up gang and that defendant
embraced and was engaged in such activities. Detective MacLafferty testified that the
primary activities of Gunz-Up were burglary, assault with a deadly weapon, attempted
murder, shooting into an inhabited dwelling, and felony possession of a firearm. The
posts describe both possession and use of firearms.
We reject defendant’s contention that admission of the Facebook posts should have
been precluded pursuant to Evidence Code section 352. Evidence Code section 352
provides, “The court in its discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.” As the plain language indicates, “[e]vidence is not
inadmissible under section 352 unless the probative value is ‘substantially’ outweighed
by the probability of a ‘substantial danger’ of undue prejudice or other statutory
counterweights.” (People v. Holford (2012) 203 Cal. App. 4th 155, 167.) A trial court has
“broad discretion under Evidence Code section 352 to exclude even relevant evidence if
it determines the probative value of the evidence is substantially outweighed by its
possible prejudicial effects. [Citation.]” (People v. Merriman (2014) 60 Cal. 4th 1, 74.)
The probative value of the Facebook postings offered by the prosecution was not
substantially outweighed by the risk that its introduction would necessitate undue
consumption of time, or create substantial danger of undue prejudice to defendant,
confuse the issues, or mislead the jury. The content of this evidence was not
inflammatory when considered in the context of the charged crimes and the other
evidence presented at trial. Thus, we conclude that the evidence was not inadmissible
pursuant to Evidence Code section 352. (E.g., Ochoa, supra, 26 Cal.4th at p. 438 [trial
21
court properly admitted evidence of the defendant’s “ ‘187’ ” tattoo over the defendant’s
Evidence Code section 352 objection].)
Most of the cases cited by defendant to support his argument that his trial
counsel’s failure to object to the Facebook posts constituted deficient performance are
inapposite because they involved inadmissible evidence of other arrests or crimes. (See
People v. Jackson (1986) 187 Cal. App. 3d 499, 505-507 [failure to move for exclusion of
prior felony convictions], disapproved on other grounds in People v. Mason (1991) 52
Cal. 3d 909, 943, fn. 13; People v. Guizar (1986) 180 Cal. App. 3d 487, 490-491 [failure to
request editing of witness’s recorded statement that the defendant had “committed ‘some
murders before’ ”]; People v. Zimmerman (1980) 102 Cal. App. 3d 647, 656 [failure to
object to information concerning a prior robbery conviction]; Atkins v. Attr. Gen. of
Alabama (11th Cir. 1991) 932 F.2d 1430, 1431-1432 [failure to object to introduction of
defendant’s fingerprint card, which contained information about a prior arrest, and which
was inadmissible under Alabama law].) Defendant correctly points out that other crimes
evidence is highly prejudicial. (See generally People v. Ewoldt (1994) 7 Cal. 4th 380,
405, superseded by statute on other grounds as stated in People v. Britt (2002) 104
Cal. App. 4th 500, 505.) However, as stated above, the evidence at issue here was
admissible as defendant’s admissions and as evidence pertaining to the gang
enhancement allegations. The Facebook posts were not introduced as “other crimes”
evidence, but as evidence relevant to the crimes and allegations charged.
Defendant also cites People v. Stratton (1988) 205 Cal. App. 3d 87 (Stratton), in
which the defendant was convicted of robbing an ice cream store with a handgun. The
conviction was reversed because the defendant’s trial counsel failed to object to the
introduction of evidence that, when he was arrested approximately two weeks after the
robbery, he was found to be in possession of a knife and a deactivated hand grenade. (Id.
at pp. 92-93.) That evidence “was only tangentially relevant to the case at bench, and its
potential for prejudice was great.” (Id. at p. 93.)
22
Here, because the two Facebook posts were made shortly after the shooting by an
individual identified by several witnesses as the shooter, because the circumstances
described in the statements resembled the shooting in material respects, and because there
was little likelihood that the introduction of these statements would confuse the issues or
motivate the jurors to punish defendant for uncharged crimes, they were relevant and
their probative value was not substantially outweighed by any potential prejudicial effect.
Defendant’s reliance on McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1382-
1383 (McKinney), superseded by statute as recognized in Torres v. Barnes (N.D.Cal.
Sept. 18, 2014, No. C 11-1804 SBA) 2014 WL 4652400, *9, is also misplaced. At issue
in McKinney was evidence that the defendant had possessed a particular knife in the past
(a “knife that was indisputably no longer in McKinney’s possession” on the date of the
crime); that, on occasion, he strapped a knife to his body while wearing camouflage
pants; and that he had carved “ ‘Death is His’ ” on his closet door. (McKinney, at
p. 1382.) The Ninth Circuit Court of Appeals concluded that the admission of this
evidence so infused the defendant’s trial with irrelevant prejudicial evidence as to render
it fundamentally unfair. (Id. at p. 1386.) That evidence was only relevant to prove
character, not opportunity or any other fact of consequence. (Id. at pp. 1382-1383.)
Unlike the circumstances in McKinney, the Facebook posts were not admitted to
prove character or a propensity for violence. Rather, this evidence was relevant to prove
facts of consequence, including the extent to which defendant personally acknowledged
committing the charged crimes and the gang enhancement. Counsel cannot be faulted for
abstaining from making meritless objections. (People v. Price (1991) 1 Cal. 4th 324, 386-
387; see also Stratton, supra, 205 Cal.App.3d at p. 97.)
This case is also different from In re Jones (1996) 13 Cal. 4th 552, cited by
defendant. In Jones, our high court determined that trial counsel was ineffective for
failing to move to exclude evidence offered by the prosecution “of petitioner’s
involvement in a shooting incident that resulted in injury to another individual, unrelated
23
to the present case.” (Id. at p. 581.) Our high court observed that “[n]o reasoned tactical
basis appears . . . for having allowed the prosecution to introduce” the evidence at issue.
(Ibid.) Here, defense counsel could have both declined to object to the admissible
Facebook posts offered by the prosecution and offered additional posts as part of a
reasonable trial strategy. As he argued in his closing argument, the other posts, several of
which predated the shooting, demonstrated that defendant posted the material not as
admissions or evidence of consciousness of guilt, but merely because he posted rap lyrics
that interested him, because he “like[d] . . . hard core rap,” to “show[] off his . . . rapping
skills,” and because he wanted to be a rapper.
Thus, we conclude that counsel was not ineffective for failing or declining to
object to the introduction of the Facebook posts during the prosecution’s case-in-chief or
for introducing additional posts.
Defendant also argues that his trial counsel should have requested a limiting
instruction with regard to the Facebook posts. As discussed, the posts were relevant and
admissible, inter alia, as an admission connecting him with the charged crimes, to refute
defendant’s denial that he was a gang member by tending to show his immersion in gang
culture, and to show firearms possession and use as one of the primary activities of Gunz-
Up members. Furthermore, from the defense’s perspective, the posts were admissible to
show that defendant’s statements were artistic in nature, and not evidence that he shot
Keon. Thus, it is not clear what direction the instruction defendant advocates would have
provided, and defendant does not explain what such a limiting instruction should have
said. We cannot fault trial counsel for not requesting a limiting instruction when
appellate counsel has not demonstrated what such a limiting instruction should have said.
Additionally, as the People observe, counsel was not ineffective for failing to request a
limiting instruction because counsel may have wished to avoid further emphasizing the
posts which bore similarity to the shooting. (People v. Freeman (1994) 8 Cal. 4th 450,
495 [“Counsel may well not have desired the court to emphasize the evidence, especially
24
since it was obvious for what purpose it was being admitted.”]; People v. Ferraez (2003)
112 Cal. App. 4th 925, 934 [a limiting instruction would have added little to the jury’s
understanding of the case, and the decision not to request one was a reasonable tactical
choice to avoid directing the jury to focus on the evidence that proved the gang-related
charges].) Thus, we conclude that the fact that counsel did not request a limiting
instruction does not constitute deficient performance.
b. Prejudice
To establish prejudice, “[i]t is not enough ‘to show that the errors had some
conceivable effect on the outcome of the proceeding.’ ” (Richter, supra, 178 L.Ed.2d at
p. 642.) Rather, to show prejudice, defendant must show a reasonable probability that he
would have received a more favorable result had counsel’s performance not been
deficient. (Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at
pp. 217-218.) “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” (Strickland, at p. 694; accord, Ledesma, at p. 218.) “The
likelihood of a different result must be substantial, not just conceivable.” (Richter, at
p. 647.)
There is no reasonable probability that defendant would have obtained a more
favorable result if his trial counsel prevented the prosecution from introducing the
Facebook posts or if counsel had requested a limiting instruction. Multiple witnesses
identified defendant as the shooter. The record contained evidence that defendant had
motives to harm Keon. According to MacLafferty, Keon’s brother murdered defendant’s
friend, a rival gang member. Additionally, on the day of the shooting, Keon’s cousin, a
rival gang member, punched defendant’s sister at Keon’s house. Keon, also a rival gang
member, had been dating defendant’s sister and did nothing to protect her from or
vindicate the assault, but instead put defendant’s sister out of the house. Given the gang
rivalry, the history of retaliation between the gangs, and gang culture of maintaining
respect through violence, the motive evidence was compelling. Defendant’s account of
25
the day of the shooting changed over time, and was largely unsupported by the evidence.
There is no reasonable probability that, had defense counsel successfully opposed the
introduction of the Facebook posts, defendant would have obtained a more favorable
result at trial.
Defendant argues that “[t]he introduction of the highly prejudicial bad character
evidence here completely destroyed his credibility in the eyes of the jury.” However, the
record does not support this contention. Defendant’s credibility was undermined by his
own admission that he lied to MacLafferty; his account of his actions before and after the
shooting, which was contradicted by the cell phone evidence; his denial that he knew at
the time of the shooting that his sister had been punched; and his denial that he was a
Gunz-Up gang member. Indeed, defendant testified, essentially, that he would lie
whenever it suited him. In this context, there is no reasonable probability that the
admission of the two Facebook posts in the prosecution’s case-in-chief or counsel’s
failure to request a limiting instruction had any effect on the jury’s view of defendant’s
otherwise questionable credibility.
2. Prosecutor’s Cross-Examination of Defendant
a. Deficient Performance
Defendant claims that trial counsel’s failure to object to prejudicial cross-
examination constituted ineffective assistance of counsel. However, we conclude that, in
all but one instance, the prosecutor’s cross-examination was not objectionable, and
counsel’s failure to object did not constitute deficient performance.
There is only one challenged question by the prosecutor during his cross-
examination of defendant that was objectionable. In questioning defendant about the
lyrics set forth in his various Facebook posts, the following exchange occurred:
“Q You put the stuff about shooting niggas in the head. Right?
“A Oh, I didn’t say that, but yeah.
“Q Well something to the affect [sic]. Right?
26
“A Yes.”
The trial record does not contain any statement by defendant “about shooting
niggas in the head.” Defendant did post on Facebook, among other things, “Like a
scarecrow way niggas scare for, are with the airholes, leave a nigga with airholes . . . .”
He also posted, “Bullet to your skull, ma, yo brains looks like gumbo,” and “.45 snap ya
cap like a can of Sprite.”
A prosecutor’s use of a racial slur is generally improper unless it is a direct quote
and relevant. The prosecutor’s question appears to be an amalgamation of the foregoing
posts. Under the circumstances of this case, the failure to object to this isolated lapse
does not constitute constitutionally deficient performance.10
Contrary to defendant’s contention, the other challenged questions during the
prosecutor’s cross-examination of defendant were not objectionable. As previously
discussed, defense counsel may have opted to submit into evidence certain Facebook
posts for the legitimate, strategic reason of casting the evidence in a light more favorable
to the defense. Having introduced this material into evidence, the defense opened the
door to the prosecutor’s questions on cross-examination exploring the subject and the
contents of the evidence. (People v. Friend (2009) 47 Cal. 4th 1, 35 [“Because the
defense opened the door to the subject by eliciting defendant’s prior felony convictions in
his direct testimony, the prosecutor properly could raise the issue in cross-
examination.”].) Contrary to defendant’s contention, the prosecutor’s questions
concerning what he termed defendant’s “fascination” with guns did not improperly elicit
bad character evidence; rather, the prosecutor’s questions were within the proper scope of
cross-examination in light of the evidence before the jury (see generally People v. Letner
10 We emphasize, however, that the prosecutor should endeavor to be more precise and
avoid paraphrasing in referencing such language, particularly when, as here, the exact
statement is known.
27
and Tobin (2010) 50 Cal. 4th 99, 160 [trial court did not abuse its discretion by allowing
the prosecutor to question Tobin on a subject that Tobin brought up in his own
testimony], citing People v. Mayfield (1997) 14 Cal. 4th 668, 754 [cross-examination can
explore a defendant’s testimony in greater detail than the direct testimony, and, in
general, the permissible scope of cross-examination is very wide]), and were, as
defendant acknowledges, based on the evidence submitted by the defense.
Defendant contends that defense counsel opened up this line of cross-examination
by introducing the other Facebook posts. This is true, but as we have said, the
introduction of those posts was strategic. There is “no expectation that competent
counsel will be a flawless strategist or tactician” (Richter, supra, 178 L.Ed.2d at p. 646),
and counsel’s strategy is not constitutionally deficient just because it may not have
worked. (Id. at p. 645 [defense counsel is not incompetent merely because the defense
strategy did not work out as well as counsel had hoped].)
b. Prejudice
Even were we to assume that the prosecutor’s cross-examination was improper,
and that defense counsel’s failure to object was constitutionally deficient, defendant has
failed to establish that he sustained prejudice. Based on the evidence marshaled above,
there is no reasonable probability that defendant would have obtained a more favorable
result had defense counsel objected to the challenged remarks during the prosecutor’s
cross-examination of defendant. Moreover, had defense counsel successfully objected to
the objectionable question invoking the racial slur, the prosecutor still could have directly
quoted defendant’s Facebook posts in questioning him on the subject.
3. Ineffective Assistance of Counsel Claim - Conclusion
Based on of the foregoing, contrary to defendant’s contentions, we conclude that
he was not denied the effective assistance of counsel.
28
II. Sentencing
The trial court’s original sentence of seven years to life on count one was
unauthorized. Here, the jury found not true the allegation that the attempted murder was
willful, deliberate and premeditated. Therefore, section 664, subdivision (a), authorized
only a determinate sentence of five, seven, or nine years.
Since the original sentencing proceeding, the trial court corrected the unauthorized
sentence, as it had the authority to do (see generally People v. Nelms (2008) 165
Cal. App. 4th 1465, 1471-1472), by entering an amended judgment sentencing defendant
to five years on the attempted murder count, plus the consecutive 25 to life term for the
firearm enhancement. This sentence is authorized.
However, we have noted the amended abstract of judgment erroneously identifies
subdivision (a), rather than subdivision (d), of section 12022.53 as supporting the firearm
enhancement sentence imposed on count one.11 Accordingly, a second amended abstract
of judgment must be prepared to reflect the correct subdivision supporting this
enhancement.
11 The record has been augmented to include a certified copy of the amended abstract of
judgment. (Cal. Rules of Court, rule 8.340(a).)
29
DISPOSITION
The clerk of the superior court is directed to prepare a second amended abstract of
judgment correcting the statutory citation for the count one enhancement to section
12022.53, subdivision (d). The clerk is directed to forward a certified copy of the second
amended abstract of judgment to the Department of Corrections and Rehabilitation. The
judgment is otherwise affirmed.
MURRAY , J.
We concur:
MAURO , Acting P. J.
HOCH , J.
30