People v. Gebremariam CA1/5

Filed 3/5/21 P. v. Gebremariam CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, A159552
Plaintiff and Respondent,
(Sonoma County
v. Super. Ct. No. SCR-699363-1)
YONAS TESFAI GEBREMARIAM,
Defendant and Appellant.
Yonas Tesfai Gebremariam was convicted of assault with a
semiautomatic firearm (Pen. Code, § 245, subd. (b)),1 attempted voluntary
manslaughter (§§ 192, subd. (a), 664), and battery (§ 242) and sentenced to 45
years to life in prison. Gebremariam appeals, raising several arguments for
reversal of his convictions. We affirm and modify the abstract of judgement.
BACKGROUND
A.
In December 2016, Gebremariam accused acquaintance Brian
Stevenson of stealing $100 from him at a casino. The two fought physically
before security staff separated them. The following month, at a gathering in
1
Undesignated statutory references are to the Penal Code.
1
a converted garage where John Rogers2 and Kendrick Hill lived,
Gebremariam and Stevenson met again and appeared to resolve their
differences.
A few weeks later, in late January 2017, Stevenson and Gebremariam
ran into each other again. Stevenson testified that he tried to get by
Gebremariam, who was standing in the doorway of the Rogers’ garage, but
Gebremariam told Stevenson to move, used a racial slur, and said he would
“ ‘beat [Stevenson’s] ass.’ ” Stevenson placed Gebremariam in a neck hold
and threw him to the ground, where the two wrestled until Hill pulled them
apart. According to Stevenson, Gebremariam said, “ ‘I’ll fuck you up. You
just got two in the ass.’ ”
One night in late February 2017, Stevenson arrived at the Rogers’
house around midnight. John, Hill, and Gebremariam’s brother were in the
garage playing video games. Stevenson testified that he went outside briefly
to smoke a cigarette and make a phone call.
Stevenson testified that he came back inside the garage without
incident and, a short time later, saw someone walking down the path outside.
He unlocked the door. Gebremariam opened the door, hitting Stevenson in
the back. Gebremariam said, “what’s up now?” and immediately reached for
the handle of a gun in his waistband. Gebremariam raised a semiautomatic,
nine-millimeter gun until it was about six inches from Stevenson’s stomach,
and then fired.
Next, Gebremariam pointed the gun at Stevenson’s head. Stevenson
held his hand up, saying “ ‘don’t shoot me.’ ” Gebremariam fired again. The
bullet went through Stevenson’s hand. Stevenson collapsed onto a bed,
2
We refer to Rogers family members, for clarity, by their first names.
2
facedown, pretending to be dead. He heard three more shots fired, and
believed he had been shot in the back of his thigh and twice in his buttocks.
Stevenson testified he did not own or carry guns, did not have a gun on
the night of the shooting, and never struggled with Gebremariam over the
gun.
B.
Stevenson’s testimony was largely corroborated by his prior statements
to police and Hill’s testimony. Most importantly, Hill stated that he never
saw Stevenson with a gun and did not observe a struggle over the gun before
Gebremariam fired the first shot. Hill also said Gebremariam threatened to
return with a gun after the January fight.
On the other hand, Hill contradicted Stevenson’s denial that he
regularly smoked crack. Hill’s testimony also conflicted with Stevenson’s
regarding events immediately before the shooting. Hill said that Stevenson
came in and out of the garage several times that night. On one such occasion,
Hill heard trash cans falling over. A neighbor also heard two angry, male
voices and the sound of metal falling, shortly before hearing gunshots.
Hill testified that, after he heard the noise outside, Stevenson ran back
inside the garage, looking frightened, and shut the door. Gebremariam
opened it forcefully, pushing Stevenson aside. Gebremariam was holding a
gun, which Hill believed was a semiautomatic, nine-millimeter pistol.
Gebremariam pointed the gun at Stevenson and said, “you told people you
beat me up.” Hill then heard a “pop.” Stevenson screamed and Gebremariam
fired again.
After Stevenson collapsed, Gebremariam was pulled from the room. He
returned and shot Stevenson twice more. Hill heard at least four total shots
fired. A neighbor, who called 911, also reported hearing four shots fired.
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C.
Hill’s statements to police were generally consistent with his testimony
at trial, although there is some conflict about whether he said that
Gebremariam fired the gun twice or at least twice. Inside the garage, police
found two shell casings.
The emergency physician who treated Stevenson observed five gunshot
wounds: one to Stevenson’s lower abdomen, one to each buttock, one to his
left inner thigh, and one to his right hand. The doctor believed the minimum
number of bullets involved was three.
D.
John and Harold Rogers testified, for the defense, that Stevenson was a
crack addict who was aggressive when using and jealous of Gebremariam’s
success in the music business. In the summer of 2016, both saw Stevenson
with a black semi-automatic pistol. After the January fight, Stevenson
yelled, “I’m going to shoot [you].” A week later, Stevenson showed up with a
black semiautomatic gun and asked Harold, “where’s your boy at?” Neither
John nor Harold was present at the scene of the shooting.
Gebremariam himself testified that he headbutted Stevenson after
Stevenson stole $100 from him at a casino. Two weeks before the shooting,
Gebremariam ran into Stevenson at the Rogers’ house. Gebremariam
remained angry and still wanted to beat up Stevenson. Gebremariam
bumped Stevenson on purpose. Stevenson said, “watch it.” Gebremariam
threw a punch, and they fought again. When the two were separated,
Stevenson said he would pistol whip Gebremariam because “it’s not over.”
On the night of the shooting, Gebremariam went to the Rogers’ house,
looking for his brother. When he arrived, Stevenson came outside.
Gebremariam told Stevenson that he was “going to get [his] ass whooped
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again.” He saw that Stevenson had a gun, grabbed for it, and the two
wrestled for control of the gun, knocking things over in the process.
Gebremariam thought Stevenson was going to kill him.
When they moved inside the garage, both Gebremariam’s and
Stevenson’s hands were on the gun. Gebremariam said the gun discharged
while Stevenson had both hands on the gun, with one hand on the muzzle.
He was not sure who touched the trigger. Despite Stevenson having been
shot in the right hand, he continued to use it to fight for the gun. The gun
fired a second time, while it was pointed at Stevenson’s stomach.
Gebremariam admitted his hand may have been on the trigger, but said he
never controlled the gun. Stevenson fell after the second shot. No additional
shots were fired. Asked to explain the gunshot wounds to Stevenson’s
buttocks and leg, Gebremariam said the only “logical explanation” was that a
bullet “ricocheted off his hand” or they were “ancient wounds.”
Gebremariam fled, threw the gun in a creek, drove to San Jose and
then, a week later, to Los Angeles. He did not contact the police. When he
did speak to police, Gebremariam lied and said he had nothing to do with the
shooting.
E.
Apparently believing Hill’s version of events, the jury convicted
Gebremariam of one count of assault with a semiautomatic weapon (§ 245,
subd. (b); count two), and attempted voluntary manslaughter (§§ 192, subd.
(a), 664)—as a lesser included offense to the charged offense of attempted
murder (§§ 187, subd. (a), 664; count one). The jury found true enhancement
allegations that Gebremariam personally used a firearm (§ 12022.5, subd. (a))
and personally inflicted great bodily injury (§ 12022.7, subd. (a)).
Gebremariam was acquitted of a second count of assault with a
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semiautomatic firearm against Hill (count three) but convicted of a
misdemeanor battery (§ 242; count four).
The trial court found Gebremariam suffered two prior strike
convictions (§§ 667, subds. (d), (e), 1170.12, subds. (b), (c)) and two prior
convictions for serious felonies (§ 667, subd. (a)). The trial court sentenced
him to an aggregate prison term of 45 years to life.
DISCUSSION
A.
First, Gebremariam argues his convictions on counts one and two must
be reversed because the jury received excluded evidence during its
deliberations. We review the question independently (People v. Gamache
(2010) 48 Cal.4th 347, 396 (Gamache)), but disagree.
1.
At trial, Hill was asked why he was concerned about Stevenson going
in and out of the garage on the night of the shooting. Hill said he was
worried because Gebremariam brought a gun to the house after the January
fight. Immediately thereafter, the court held an admissibility hearing
outside of the jury’s presence. The court ultimately struck Hill’s testimony
regarding Gebremariam’s prior possession of a gun, concluding it was a
separate incident that was more prejudicial than probative. (See Evid. Code,
§§ 352, 1101, subd. (b).) The trial court ordered the jury to disregard this
testimony and denied Gebremariam’s motion for mistrial.
During its deliberations, the jury asked for and was provided a read-
back of Hill’s testimony. Later the same day, the jury announced it had
reached a verdict. Before the court summoned the jury to announce its
verdict, the court informed the parties that a substitute reporter had read a
transcript to the jury that included Hill’s stricken testimony without the
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court’s admonition not to consider it. Relying on its previous admonitions as
sufficient to cure any prejudice, the trial court denied Gebremariam’s
renewed motion for mistrial.
2.
It is undisputed that the jury should not have been read Hill’s stricken
testimony. The only question “is whether the error was sufficiently
prejudicial to warrant a new trial.” (Gamache, supra, 48 Cal.4th at p. 396.)
No presumption of prejudice arises when a jury innocently considers
evidence it was inadvertently given. (Gamache, supra, 48 Cal.4th at pp. 397-
399.) Nor does a jury’s innocent consideration of evidence it was
inadvertently given constitute constitutional error, as Gebremariam
suggests. (People v. Clair (1992) 2 Cal.4th 629, 669, fn. 10.) “This situation is
no different than if the same evidence had been proffered at trial and a valid
objection to its admittance was erroneously overruled.” (Gamache, supra, at
pp. 396-397.) The burden is on Gebremariam to demonstrate a reasonable
probability that, in the absence of the error, he would have obtained a more
favorable result. (Id. at p. 397; People v. Jackson (1996) 13 Cal.4th 1164,
1213-1214.)
3.
People v. Horton (1995) 11 Cal.4th 1068 (Horton) is on point. In
Horton, a court reporter read back “the complete trial transcript,” without
omitting questions to which objections were sustained and answers which
were ordered stricken. (Id. at p. 1121.) Our Supreme Court found the error
was not prejudicial because the court “must presume the jury heeded the
instruction [to disregard all stricken evidence] . . . , as it was required to
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disregard such material when originally presented during the course of the
testimony.” (Ibid., italics added.)
Gebremariam argues it is unclear if the Horton read-back also omitted
the court’s admonitions to disregard the stricken evidence. If so, it is hard to
understand why the court assumed the jury heeded the instruction “when
originally presented.” ( Horton, supra, 11 Cal.4th at p. 1121.) But even
without Horton, the error is harmless.
Hill’s stricken testimony—a single sentence—added little to the
overwhelming evidence showing Gebremariam’s violent disposition. Both
Stevenson and Hill testified that, on the day of the shooting, Gebremariam
immediately pulled the gun out of his waistband, as he entered the garage,
fired at least four times at Stevenson, including two shots fired into
Stevenson’s backside after he collapsed. The medical evidence and the
neighbor’s testimony also contradicted Gebremariam’s account that only two
shots were fired while he was struggling with Stevenson over the gun.
Gebremariam’s attempts to explain these discrepancies were highly
implausible. Gebremariam’s behavior after the shooting also allowed the jury
to reasonably infer he was not testifying truthfully.
Furthermore, Gebremariam himself testified that he was the aggressor
in the prior fights. There was also testimony that he threatened to return
with a gun during the January fight. On this record, there is no reasonable
probability of a more favorable outcome if the read-back had omitted Hill’s
stricken testimony.
B.
Gebremariam insists that the trial court erred in failing to sua sponte
give a jury instruction on accident as a defense. (See § 26 (5); CALCRIM Nos.
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3404, 510.) In the alternative, he contends his trial counsel was ineffective in
failing to request such an instruction. He is wrong on both points.
1.
A trial court has a sua sponte duty to instruct the jury on general
principles of law applicable to the evidence and necessary to the jury’s
understanding of the case. (People v. Estrada (1995) 11 Cal.4th 568, 574.)
The trial judge has a duty to instruct as to defenses “ ‘only if it appears that
the defendant is relying on such a defense, or if there is substantial evidence
supportive of such a defense and the defense is not inconsistent with the
defendant’s theory of the case.’ ” (People v. Breverman (1998) 19 Cal.4th 142,
157.) However, the trial court has no sua sponte duty to instruct on accident
because it is a pinpoint instruction, which relates evidence to the mental
element the prosecution bears the burden of proving. (People v. Anderson
(2011) 51 Cal.4th 989, 992, 996-998.) The trial court is only required to give
an accident pinpoint instruction on request. (Id. at p. 997.)
Gebremariam concedes his trial counsel did not request an accident
instruction. Thus, even assuming his testimony regarding the struggle for
the gun adequately supported the instruction, Gebremariam cannot show the
trial court erred.
Gebremariam argues the rule is different if the accident relates to
action elements of a crime (the actus reus), as opposed to the mental element
(mens rea). If he is suggesting that Stevenson was somehow shot as the
result of an accident that had nothing to do with Gebremariam’s actions—
which included, by his own account, fighting for the gun and pulling the
trigger—the record does not support his theory. (See People v. Spector (2011)
194 Cal.App.4th 1335, 1374.) In any case, he presents no authority that
suggests a sua sponte instructional duty exists when a defendant denies
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committing the actus reus. Nor does he present any reason why a different
rule should apply. (See Anderson, supra, 51 Cal.4th at p. 997 [citing
commentator’s explanation that an accident defense is simply a claim that an
element of the crime is missing].)
2.
We also reject Gebremariam’s ineffective assistance of counsel
argument because Gebremariam has not shown that his trial counsel’s
performance was deficient. (Strickland v. Washington (1984) 466 U.S. 668,
688, 692.)
A claim of ineffective assistance of counsel raised on direct appeal fails
unless “(1) the record affirmatively discloses counsel had no rational tactical
purpose for the challenged act or omission, (2) counsel was asked for a reason
and failed to provide one, or (3) there simply could be no satisfactory
explanation.” (People v. Mai (2013) 57 Cal.4th 986, 1009.) However, when
counsel does not request jury instructions to support the core of their argued
defense, we cannot presume they have made a tactical choice. (People v.
Hussain (2014) 231 Cal.App.4th 261, 271.)
Here, defense counsel did briefly suggest, in closing argument, that the
shooting might have been accidental. However, this was not the core of
Gebremariam’s defense. Defense counsel primarily argued that Stevenson
pulled the gun during a fight and that Gebremariam fired the gun in self-
defense. “Homicide is justifiable when committed in self-defense.” (People v.
Villanueva (2008) 169 Cal.App.4th 41, 49.) And “an accidental shooting is
inconsistent with an assertion of self-defense.” (Id. at p. 50; accord, People v.
Sedeno (1974) 10 Cal.3d 703, 717–718, disapproved on other points by People
v. Breverman, supra, 19 Cal.4th at pp. 163, 165.)
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Gebremariam’s theory—that the gun discharged accidentally at least
twice during a struggle for control of the gun that continued even after
Stevenson was shot in the hand—is weak. When one also considers
Gebremariam’s admissions that he was the aggressor in prior altercations
with Stevenson, the extensive evidence of Gebremariam’s consciousness of
guilt, and the wounds to Stevenson’s buttocks that Gebremarian could not
explain, we agree with the People that defense counsel could reasonably have
concluded that it was not wise to divert focus to an accident defense. Because
the record fails to affirmatively demonstrate that counsel’s omission had no
reasonable tactical basis, we reject Gebremariam’s ineffective assistance of
counsel claim.
C.
Finally, Gebremariam maintains that the trial court conducted an
inadequate investigation into a report of potential juror misconduct. The
trial court did not abuse its discretion. (See People v. Cowan (2010) 50
Cal.4th 401, 506 [standard of review].)
1.
A criminal defendant has a fundamental constitutional right to a fair
trial by an impartial jury. (See U.S. Const., 6th & 14th Amends.; Cal. Const.,
art. I, § 16; Duncan v. Louisiana (1968) 391 U.S. 145, 149.) Section 1122
requires the trial court to instruct the jury, at each adjournment of the court
before the submission of the cause to the jury, “that it is their duty not to . . .
converse among themselves, or with anyone else, on any subject connected
with the trial, or to form or express any opinion about the case until the
cause is finally submitted to them.” (§ 1122, subd. (b).) A juror who violates
this duty, such as by prejudging a case, is guilty of misconduct. (People v.
Linton (2013) 56 Cal.4th 1146, 1194.)
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2.
In the middle of the prosecution’s case in chief, the court received a
note from juror 724689, stating that an alternate juror was making
comments like “ ‘this is a shit show,’ ” “ ‘yeah, right,’ ” and that a witness
“ ‘doesn’t look like a doctor.’ ” When summoned, juror 724689 told the court
that the alternate made the “ ‘shit-show’ ” remark on the first or second day
of testimony and continued to make comments as more prosecution witnesses
were called. The alternate was seated close to juror 724689 in the courtroom,
but the alternate also made at least one comment in the hall, in the presence
of some other jurors. Juror 724689 found the comments distracting, but said
he was still able to follow the trial and stated that the comments were not
leading him to prejudge the case.
The court also questioned the alternate juror, who conceded she might
have made at least some of the alleged comments, but only to herself. The
court admonished the alternate juror, explaining that the comments were
distracting and may influence other jurors to prejudge the case. The
alternate juror assured the court she had not made up her mind as to guilt
and remained able to deliberate.
Although the prosecutor expressed concern, neither counsel asked to
dismiss the alternate or sought further questioning. Defense counsel stated
his belief the admonishment was sufficient. The court made no further
inquiry.
3.
Gebremariam complains that the trial court “had no way of knowing
whether [other jurors] had heard comments and responded differently” than
juror 724689. The argument is speculative. It assumes that at least one of
the other 11 jurors overheard the alternate juror’s comments and was
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unsettled by what they overheard. “ ‘ “[A] hearing is required only where the
court possesses information which, if proven to be true, would constitute
‘good cause’ to doubt a juror’s ability to perform his duties and would justify
his removal from the case.” ’ ” (People v. Fuiava (2012) 53 Cal.4th 622, 702.)
We cannot find error merely because a trial court’s decision to forgo an
inquiry leaves some uncertainty about what occurred. (Id. at p. 703.)
The trial court did not abuse its discretion. (See People v. Fuiava,
supra, 53 Cal.4th at p. 702 [“ ‘wait and see’ ” approach was not abuse of
discretion as to whether any juror other than complaining juror affected by
courtroom spectators’ actions].) Further inquiry risked tainting jurors who
never heard the alternate juror’s comments. In any event, the alternate’s
comments suggested any prejudgment harmed the prosecution, and
Gebremariam’s trial counsel did not request further inquiry. This “further
supports our conclusion that a hearing was not warranted.” (Id. at p. 703;
accord, People v. Bell (2019) 7 Cal.5th 70, 120 [defendant forfeited inadequate
inquiry claim “by not asking for additional questioning”].)
D.
Finally, we agree with the People that the abstract of judgment and
clerk’s minutes do not accurately reflect the trial court’s imposition of an
aggregate sentence of 45 years to life in prison. Specifically, the abstract of
judgment erroneously reflects a total of three years was imposed for the
enhancements tied to count two. In fact, the trial court imposed a total of 13
years for enhancements tied to count two. The abstract of judgment and
clerk’s minutes must accurately reflect the sentence orally pronounced by the
trial court. (See People v. Zackery (2007) 147 Cal.App.4th 380, 385.) We will
order the superior court clerk to correct the error. (See People v. Mitchell
(2001) 26 Cal.4th 181, 186-187.)
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DISPOSITION
The judgment is affirmed. The superior court clerk is directed to
prepare, and forward to the Department of Corrections and Rehabilitation,
an amended abstract of judgment that reflects (1) the trial court’s imposition
of an aggregate sentence of 45 years to life in prison; and (2) the trial court’s
imposition of a total of 13 years for enhancements tied to count two.
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_______________________
BURNS, J.
We concur:
____________________________
SIMONS, ACTING P.J.
____________________________
NEEDHAM, J.
A159552
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