People v. Tibayan CA3

Filed 1/27/21 P. v. Tibayan 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C089713
Plaintiff and Respondent, (Super. Ct. No. 17FE020202)
v.
BRIANNA LOUISE TIBAYAN,
Defendant and Appellant.
Following a jury trial, defendant Brianna Louise Tibayan was found guilty of
carjacking. Additionally, the trial court found true allegations that she had been
previously convicted of a serious felony and a prior serious or violent felony (a “strike”).
The court imposed an aggregate term of 15 years in state prison. On appeal, defendant
contends: (1) she received ineffective assistance of counsel because her counsel failed to
object to admission of a text message where defendant said she was “a young female
gangsta new generation”; (2) she received ineffective assistance of counsel because her
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counsel failed to object to the admission of defendant’s text messages as adoptive
admissions; and (3) these errors resulted in cumulative prejudice. We will affirm.
I. BACKGROUND
On June 18, 2017, L.M. got a car ride with defendant and defendant’s girlfriend
from Sacramento to Modesto so that L.M. could pick up her personal items from a
residence in Modesto from which she was moving. This was the first time L.M. had ever
met defendant, who L.M. knew as “Nena.” The ride had been set up by L.M.’s sister-in-
law, Lydia, and defendant’s cousin, and Lydia paid defendant $60 and also filled up her
car with gas. When L.M., defendant, and defendant’s girlfriend arrived in Modesto, they
retrieved L.M.’s personal items from the residence where she had been staying and
loaded the items into three vehicles: defendant’s vehicle, L.M.’s Ford Explorer, and
L.M.’s Oldsmobile Cutlass Supreme. They exchanged phone numbers. Defendant drove
L.M.’s Oldsmobile, L.M. drove the Explorer, and defendant’s girlfriend drove
defendant’s vehicle.
On the way back to Sacramento from Modesto, defendant and defendant’s
girlfriend drove their vehicles ahead of L.M. to the point where L.M. could no longer see
the other two vehicles on the highway. L.M. panicked and called defendant’s phone, but
there was no answer. L.M. eventually made it back to the residence of her friend, Amy,
who lived in Sacramento on Peacock Way. She called defendant’s cousin and told him
where the others could meet L.M., and defendant and her girlfriend arrived in the other
two vehicles shortly thereafter. L.M. unpacked her own items out of defendant’s vehicle.
The trunk of defendant’s car was not opened, and L.M. thought that defendant’s
girlfriend had already pulled L.M.’s items out of the trunk. Before leaving, defendant
asked L.M. about buying her Oldsmobile for $400. L.M. replied that the car was not for
sale but she would call defendant if she changed her mind.
Within a few hours after defendant left, she sent a text message to L.M. stating
that L.M. had left some bags in her car. L.M. called defendant and defendant told L.M.
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to come to defendant’s location to pick up her remaining items and told her to drive the
Oldsmobile. L.M. said she could not drive to defendant’s location because the
Oldsmobile had expired registration tags and L.M.’s Ford Explorer had a leaking
radiator. Defendant said she would deliver the items to L.M. if she paid her money for
gas, which L.M. agreed to do.
At some point, defendant arrived at Amy’s house and sent a text message to L.M.
stating, “I’m outside.” L.M. went outside and defendant had already set L.M.’s items on
the sidewalk or curb. Defendant arrived in a Chevy Impala, or something like it, with a
male. L.M. thanked defendant for bringing her items and gave her $15 for gas.
Defendant told L.M. that she had left her identification in L.M.’s Oldsmobile. L.M. bent
over, looking around the car seat and floorboard for the identification when defendant
said, “ ‘Nah, nah. Turn around.’ ” L.M. backed out of the car and noticed that defendant
was pointing a chrome revolver at her from about 15 feet away. Defendant said, “ ‘Give
me your keys, bitch, before I shoot you.’ ” L.M. replied, “ ‘You don’t want to do this.’ ”
The male with defendant never got out of defendant’s car, but he said, “ ‘You better give
her the keys before she shoots you.’ ” Defendant then said, “ ‘You better give me your
keys, bitch, before I shoot you.’ ” Defendant raised her gun in the air and fired. L.M.
threw defendant the keys to the Oldsmobile and ran to the back of the house. When L.M.
checked later, the Oldsmobile and defendant’s vehicle were gone.
Shortly after the incident, Amy called 911. During the call, L.M. told the 911
operator/dispatcher, “Yes. My car was just taken at gunpoint right now.” L.M. described
the vehicle in part as “a beige Cutlass Supreme Oldsmobile.” When the 911
operator/dispatcher asked L.M. if she knew who took her vehicle, L.M. replied, “Yeah,
yeah, they, well I don’t really know them, I met them today. Uh, I know where they go,
they know some of the people that I was at my - - at this house. They know some of the
people that I know, they know them. They [helped] me move some stuff from Modesto
over here to Sacramento.” L.M. described the perpetrators as “a girl and a guy.”
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According to L.M., the female was about 30 to 35 years old with a hat on backwards and
a ponytail and had shot a chrome gun once in the air. L.M. knew the female as “Nena”
and that defendant had a cousin named “Conrad.” L.M. explained to the 911
operator/dispatcher that her cousin arranged a ride from defendant.
That evening, one of Amy’s neighbors, Nicholas, heard what he thought was
either a gunshot, a car door slamming, or a firework. After hearing the noise, which was
loud enough to draw his attention to get out of bed and look, he saw a beige sedan similar
to an Oldsmobile, and a smaller compact car, traveling away from the area in opposite
directions at the same time. When he spoke with the police that same evening, he told an
officer he thought he had heard a gunshot.
Three days after defendant took L.M.’s car, L.M. and defendant exchanged a
series of text messages. Initially, L.M. texted defendant to “[j]ust give me my car back
and let all this be done and over.” L.M. also texted defendant, “I want my car back the
same way you took it. I know what it has outside and inside.” Defendant responded
back with a text message, “Bitch u call no shots first off second off I’m not worried about
your people n second off I fuckkkk with a lot of people n third don’t hit my shit calling
shots n fourth!!!!i know where each one of these people u so called love are Conrad nor
your brother or sisters have a thing to do w it!!!u might just make the situation worse for
YOUR loved ones n folks!!!u think Ima sucka does it sound or look like I would play
expecially now u got police involved or these young ass people involved!” L.M. texted
defendant that she just wanted her car back and wanted to know what defendant wanted.
Defendant texted L.M., “Because you payed with your pride boxing shit doesn’t mean a
damn thing” and “I want you to learn how to talk to people I want you to learn respect
others and never take this shit for granted I want you to appreciate muthafukkkkas who
go out there way to help you I owe you nothing! your right it’s between u n I your an og
and know how this shit goes!dont take people for someone you can get over or run all
over people.” Defendant sent the following series of text messages, “Depends on how I
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feel because right now!!! your having people acting hard calling people who don’t have
nothing to do w it!!!and police”; “Lol”; “Your joking right”; “I want 3000 u can buy my
car! I have all that it needs registration”; “Snitching!!!!! is a no go”; and, “Your people
who keep trying to get involved will end now calling your brother n your so called kids n
my cousin gotta stop.” L.M. replied, “You stole my car , call it what you want. I not
paying for a car you car jack at gun point.” Defendant replied, “Hope your lesson was
taught bitch ima a young female gangsta new generation go get your shit call your Lydia
she’ll tell u.”
Lydia testified at trial that, within possibly a few days of June 18, 2017, she texted
defendant from Conrad’s phone asking defendant to give up “the car.” She believed
defendant responded that she would bring the car back because Conrad told her he would
bring it back, but Lydia did not see that communication from defendant. On June 22,
2017, L.M. found her Oldsmobile in a parking lot north of Elkhorn Boulevard. The
vehicle was in moderate to good condition and was valued at roughly $4,000 to $5,000.
Items were missing from the Oldsmobile such as blankets, speakers, pictures, and
paperwork.
Detective Brian Murawski spoke with defendant. She admitted that she knew
L.M. Defendant denied carjacking L.M. or offering to buy L.M.’s car. Defendant felt
that L.M. was setting her up. Defendant asked the detective repeatedly, “Does she have
her car?” At the time of the interview, the Oldsmobile had already been released back to
L.M.
Phone records for defendant’s phone number showed that on June 18, 2017,
defendant’s phone was in Sacramento at 11:18 a.m. At 2:02 p.m., the phone moved to
Salida, which is north of Modesto. At 6:05 p.m., defendant’s phone moved north along
the Highway 99 corridor in the Stockton area. At 6:47 p.m., defendant’s phone was in
the South Sacramento area. At 7:01 p.m. defendant’s phone was within the coverage area
for Amy’s home on Peacock Way. At 7:27 p.m., defendant’s phone moved north along
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the Interstate 5 corridor. At 9:25 p.m. defendant’s phone was just south of the
interchange between Interstate 80 and Interstate 5. At 9:49 p.m. defendant’s phone was
near South Sacramento, specifically within the coverage for Amy’s home on Peacock
Way. At 10:11 p.m., defendant’s phone moved north along the Interstate 5 corridor
toward Interstate 80.
Defendant was charged with one count of carjacking (Pen. Code, § 215, subd.
(a)—count one)1 and one count of felon in possession of a firearm (§ 29800, subd.
(a)(1)—count two). It was further alleged, in association with count one, that defendant
personally used a firearm within the meaning of both sections 12022.53, subdivision (b),
and 12022.5, subdivision (a). It was also alleged that, during the commission of count
one, defendant personally discharged a firearm within the meaning of section 12022.53,
subdivision (c). It was further alleged that defendant had been previously convicted of a
serious felony within the meaning of section 667, subdivision (a), and a prior serious or
violent felony (a “strike”) within the meaning of sections 1170.12 and 667, subdivisions
(b)-(i).
During motions in limine prior to the jury trial, the trial court granted defendant’s
motion to bifurcate the prior conviction allegations and defendant waived her right to a
jury trial on those allegations. The jury found defendant guilty on count one, but not
guilty on count two. Additionally, the jury found that the firearm allegations associated
with count one were not true. Subsequently, after a court trial, the trial court found the
prior conviction allegations to be true.
The trial court sentenced defendant to an aggregate prison term of 15 years, as
follows: the middle term of five years for the carjacking, doubled to 10 years because of
the prior strike, plus five years for the prior serious felony enhancement.
1 Undesignated statutory references are to the Penal Code.
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Defendant filed a timely notice of appeal.
II. DISCUSSION
A. Ineffective Assistance of Counsel
Defendant contends her counsel was ineffective in failing to object to admission of
a text message where defendant said she was “a young female gangsta new generation”
and failing to object to the admission of defendant’s text messages as adoptive
admissions. We disagree.
To establish ineffective assistance, 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 the defendant. (People
v. Ledesma (1987) 43 Cal.3d 171, 216-218; Strickland v. Washington (1984) 466 U.S.
668, 687-692 [80 L.Ed.2d 674, 693-696].)
In measuring counsel’s performance, judicial review is highly deferential.
(Strickland v. Washington, supra, 466 U.S. at p. 689; In re Andrews (2002) 28 Cal.4th
1234, 1253.) “When examining an ineffective assistance claim, a reviewing court defers
to counsel’s reasonable tactical decisions, and there is a presumption counsel acted within
the wide range of reasonable professional assistance. It is particularly difficult to prevail
on an appellate claim of ineffective assistance.” (People v. Mai (2013) 57 Cal.4th 986,
1009.) When the strategic reasons for challenged decisions are not apparent from the
record, we will not find ineffective assistance of counsel unless there could have been
“ ‘ “no conceivable tactical purpose” ’ ” for counsel’s acts or omissions. (People v. Earp
(1999) 20 Cal.4th 826, 896; see also People v. Arce (2014) 226 Cal.App.4th 924, 930-
931.)
1. Failure to Object to Admission of the “Gangsta” Text Message
Defendant argues she suffered ineffective assistance of counsel because her
counsel failed to object to her text message to L.M. describing herself as “a young female
gangsta new generation,” describing it as evidence that defendant admitted to being a
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gang member in a case that did not involve gang-related crimes or enhancements. The
People contend that any objection would have been futile and defendant was not
prejudiced because the evidence in question did not constitute “gang evidence.” We
agree.
We conclude that defendant’s argument is without merit. First, we question
defendant’s characterization of this message as “gang evidence.” The “gangsta” text
message was the only reference of its kind throughout the evidentiary portion of the trial.
Without any additional evidence about defendant participating in a gang, her comment
does not appear to be a clear admission of gang membership but rather, bragging in a
colloquial manner about her toughness. In contrast to the cases defendant cites, there was
no evidence presented at trial that defendant was involved in a criminal street gang.
Second, regardless of whether the text message constituted “gang evidence,”
because there is no strategic reason apparent from the record for why defense counsel did
not object to these text messages, we may only reverse if there was no conceivable
tactical reason for counsel’s failure to object. (People v. Earp, supra, 20 Cal.4th at p.
896.) Defense counsel’s performance is not constitutionally deficient for failing to make
a meritless or futile objection. (See People v. Ochoa (1998) 19 Cal.4th 353, 463 [counsel
was not under a duty to make a meritless or futile objection].) The text message in
question was admissible to prove a motive for defendant’s conduct because it tends to
show she felt disrespected and was angry with L.M. (See People v. Perry (2019)
36 Cal.App.5th 444, 473 [“in criminal cases, evidence of motive is generally relevant
because it ‘ “make[s] the crime understandable and renders the inferences regarding
defendant’s intent more reasonable” ’ ”]; see also People v. Funes (1994) 23 Cal.App.4th
1506, 1518 [gang evidence is admissible when it “is relevant to an issue of motive or
intent”].) The prosecutor argued that one of defendant’s motives to carjack L.M. was to
gain respect. Accordingly, the challenged “gangsta” text message was relevant to help
demonstrate defendant’s motive for committing the carjacking. Additionally, the
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probative value of the “gangsta” text message was not substantially outweighed by the
probability of undue prejudice. (See People v. Gonzalez (2005) 126 Cal.App.4th 1539,
1550 [“ ‘[B]ecause a motive is ordinarily the incentive for criminal behavior, its
probative value generally exceeds its prejudicial effect, and wide latitude is permitted in
admitting evidence of its existence’ ”].) The “gangsta” reference was isolated and
unconnected to any other gang-related evidence, and it is not likely the jury would have
reasonably understood that the message indicated defendant’s gang affiliation or
membership.
Defendant’s claim is without merit, invalidating her ineffective assistance of
counsel claim on this issue. (People v. Kipp (1998) 18 Cal.4th 349, 377 [reasoning that
counsel’s failure to assert a meritless position does not demonstrate ineffective assistance
of counsel].)
2. Failure to Object to Admission of Text Messages as Adoptive Admissions
Defendant contends that her counsel was ineffective in failing to object to the
admission of defendant’s text messages because the messages were inadmissible as
adoptive admissions. In motions in limine filed by the People, the prosecutor requested,
pursuant to Evidence Code section 1220, to introduce pretrial statements made by
defendant, which included her text messages with L.M. Defense counsel did not object
to the admission of the text messages. At trial, text messages between defendant and
L.M. were presented and admitted without objection. During the prosecution’s closing
argument, the prosecutor noted that when L.M. accused defendant in text messages of
stealing or carjacking L.M.’s car, defendant did not directly deny such accusations.
There was no objection to this argument.
We conclude defendant’s ineffective assistance claim fails because she has not
established prejudice. Even assuming that counsel was deficient in failing to object to the
admission of the text messages that could be characterized as adoptive admissions, most
of the incriminating text messages were simply party admissions that were admissible
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under Evidence Code section 1220. Defendant does not dispute that most of her own text
messages were party admissions and concedes in her reply brief that she is only
challenging L.M.’s text messages referenced by the prosecutor pursuant to Evidence
Code section 1221, which permits admission of “a statement by someone other than the
defendant” when offered to show that the defendant did not deny the statement. (People
v. Davis (2005) 36 Cal.4th 510, 535.)
The alleged deficiency in counsel’s performance in failing to object to a few of the
text messages on this narrow basis was harmless because there was strong evidence of
defendant’s guilt for the carjacking charge. First, L.M.’s trial testimony was supported
by a 911 call in which L.M. frantically conveyed to the 911 operator/dispatcher shortly
after the carjacking that “Nena” had carjacked her and that Nena had a cousin named
“Conrad.” Second, it was undisputed that defendant was known as “Nena” and that she
had a cousin named “Conrad.” Third, on the evening of the carjacking, one of the
neighbors in the area of the carjacking corroborated L.M.’s statement that a gun was used
during the carjacking of her Oldsmobile and saw two vehicles, one that looked like an old
Oldsmobile, speeding away. Fourth, within possibly a few days of June 18, 2017, Lydia
V. texted defendant from Conrad’s phone asking defendant to give up “the car” and
defendant communicated to Conrad that she would bring it back. Fifth, phone records for
defendant’s phone number show that her phone was in the area of the carjacking at
around 7:01 p.m. and that it moved toward north Sacramento after that.
The phone records further showed that at 9:49 p.m., defendant’s phone returned to
the area of the carjacking on the date in question and that after that it moved north along
the Interstate 5 corridor toward Interstate 80. The movement of defendant’s phone
corroborates L.M.’s testimony and timeline, and defendant’s text message to L.M.
stating, “I’m outside,” corroborates the fact that defendant returned to Peacock Way
shortly before the 911 call reporting the carjacking. Finally, defendant sent the following
series of text messages which were properly admitted as party admissions under Evidence
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Code section 1220: “Depends on how I feel because right now!!! your having people
acting hard calling people who don’t have nothing to do w it!!!and police”; “Lol”; “Your
joking right”; “I want 3000 u can buy my car! I have all that it needs registration”;
“Snitching!!!!! is a no go”; and, “Your people who keep trying to get involved will end
now calling your brother n your so called kids n my cousin gotta stop.” These messages
are evidence that defendant was angry at L.M. for “snitching” to the police and offered to
sell her the car for $3,000. Defendant also sent L.M. the following text message, a party
admission, “Bitch u call no shots first off second off I’m not worried about your people n
second off I fuckkkk with a lot of people n third don’t hit my shit calling shots n
fourth!!!!i know where each one of these people u so called love are Conrad nor your
brother or sisters have a thing to do w it!!!u might just make the situation worse for
YOUR loved ones n folks!!!u think Ima sucka does it sound or look like I would play
expecially now u got police involved or these young ass people involved!” A reasonable
jury could have construed that message as a threat in retaliation to L.M. for reporting the
theft to police and various family members.
Cumulative with L.M.’s testimony, the foregoing evidence strongly supported the
jury’s finding of defendant’s guilt of the carjacking charge. On this record, it is not
reasonably probable that a more favorable result would have been obtained if defense
counsel had objected. Accordingly, she has not demonstrated prejudice and we must
reject her claim she received ineffective assistance of counsel.
B. Cumulative Error
Defendant argues that cumulative error requires reversal. “Under the ‘cumulative
error’ doctrine, errors that are individually harmless may nevertheless have a cumulative
effect that is prejudicial.” (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) Having
rejected all of defendant’s claims of error, “we discern no prejudice—singly or
cumulatively—that warrants reversal.” (People v. Tuggles (2009) 179 Cal.App.4th 339,
388.)
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III. DISPOSITION
The judgment is affirmed.
/S/
RENNER, J.
We concur:
/S/
HOCH, Acting P. J.
/S/
KRAUSE, J.
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