People v. Smith CA5

Filed 7/12/23 P. v. Smith CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F084356
Plaintiff and Respondent,
(Super. Ct. No. VCF408559)
v.
COTIS SMITH, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Antonio A.
Reyes, Judge.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D.
Cary, and Joseph Penney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Franson, Acting P. J., Smith, J. and DeSantos, J.
Defendant Cotis Smith pled guilty to one count of being a felon in possession of a
firearm and one count of illegal possession of ammunition, and a jury convicted him of
one count of assault with a firearm and one count of shooting at an occupied motor
vehicle. After the verdict, the trial court sentenced defendant to a total term of
seven years. On appeal, defendant contends that: (1) the prosecutor committed
misconduct by violating a pretrial evidentiary order; (2) the prosecutor committed
misconduct by misstating the law on self-defense; (3) alternatively, if forfeiture is found,
then defense counsel was prejudicially ineffective for failing to object to prosecutorial
misconduct and the cumulative effect of the misconduct was prejudicial; (4) the
sentencing minute order and abstract should be amended to reflect the court’s oral
pronouncement; and (5) the court erred when it failed to stay the sentences for illegal
possession of ammunition and shooting at an occupied motor vehicle. We direct the
court to correct the sentencing minute order and abstract, and we stay the sentences for
illegal possession of ammunition and shooting at an occupied motor vehicle. In all other
respects, we affirm.
PROCEDURAL BACKGROUND
On September 7, 2021, the Tulare County District Attorney filed an amended
information charging defendant with assault with a firearm (Pen. Code, § 245,
subd. (a)(2);1 count 1), shooting at an occupied motor vehicle (§ 246; count 2), being a
felon in possession of a firearm (§ 29800, subd. (a)(1); count 3), and illegal possession of
ammunition (§ 30305, subd. (a)(1); count 4). As to count 1, the amended information
alleged that defendant personally used a firearm in commission of the offense (§ 12022.5,
subd. (a)). Prior to trial, defendant pled no contest to counts 3 and 4.
1 All statutory references are to the Penal Code unless otherwise noted.
2.
On December 10, 2021, the jury found defendant guilty on the remaining
two counts and found true that defendant personally used a deadly weapon while
committing count 1.
On April 4, 2022, the court sentenced defendant to an aggregate term of
seven years as follows: as to count 1, three years (the midterm), plus a four-year (the
midterm) personal use of a firearm enhancement; as to count 2, five years (the midterm),
to be served concurrently with the sentence on count 1; as to count 3, two years (the
midterm) to be served concurrently with the term on count 2; and count 4, two years (the
midterm) to be served concurrently with count 2.
FACTUAL BACKGROUND
The jury was shown a composite video that consisted of images captured by
several video cameras on June 29, 2020, at a Visalia gas station. The video depicted
defendant driving his car into the gas station parking lot and pulling into a fueling stall.
Defendant can be seen pumping gas into his car and talking to his friend, who was a
passenger in defendant’s car. While defendant pumped gas, a black car drove into the
gas station parking lot. Defendant and his friend noticed the black car as it approached
and turned into the gas station. The video depicted defendant’s friend quickly getting out
of the front passenger seat and looking around, defendant attempting to put the gas nozzle
back into the fuel pump but letting the nozzle drop to the ground, defendant and his
friend quickly going to the driver’s side door of defendant’s car, and defendant popping
the hood to his car. As defendant opened his driver’s side door to pop the hood, the black
car pulled next to the gas station’s convenience store entrance, directly across from
defendant’s car. Defendant and the black car were separated by a fuel pump, and there
appeared to have been approximately 20 to 30 feet between the two cars. After defendant
popped the hood of his car, he looked at the black car and walked to the front of his car to
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open the hood.2 As defendant was opening the hood of his car, the driver’s side door of
the black car opened slightly. Once defendant fully opened the hood, the black car
started to leave, and a white pick-up truck pulled between defendant’s car and the
black car. Defendant then retrieved the handgun that he had stored under the hood and
began to run after the black car. As the black car was leaving the gas station, the driver’s
side door opened wider. However, the black car continued to drive away quickly, and the
driver’s side door eventually closed. After the black car’s door closed and the black car
was out of view of the security camera, defendant ran towards the fleeing black car and
aimed his handgun while running. Although the video does not clearly depict it,
defendant fired two shots from his handgun at the black car. Defendant then stopped, ran
back to his car, and drove away.
Apart from the video, defendant testified that 10 days before the incident at the gas
station, he and another friend were the victims of a drive-by shooting. Defendant was
driving to a gas station before going to work when his friend waved him down from the
side of the road. Defendant parked his car along the sidewalk facing oncoming traffic
and spoke with his friend. As he was talking, he noticed the same black car. The black
car was driving abnormally slow, and when the hoods of the two cars were in alignment,
the driver of the black car took out a handgun and shot at defendant. Defendant ducked
below the steering wheel and heard multiple gunshots. Defendant testified that he heard
his friend yell, and then defendant quickly drove away. After defendant had gotten away,
he saw that there was a bullet hole in his car doorframe. Defendant later drove back to
the scene of the shooting and learned that his friend had been shot and taken to the
hospital. The police investigated this shooting but were unable to locate the driver of the
black car. Defendant testified that he had never been shot at before and became fearful.
2 A witness testified that it looked like the defendant and the driver of the black car
made eye contact with each other.
4.
He purchased a handgun illegally “off the street” for protection and hid the gun under the
hood of his car.
Defendant testified that on the day of the incident, he was shocked to see the same
black car again after his friend pointed it out. He was transfixed by the black car and
decided to pop the hood of his car just in case he needed the gun. Defendant did not
think about getting into his car and driving away. He had no doubt it was the same driver
who had shot his car and his friend 10 days prior. Defendant testified that after he
popped the hood and the black car had pulled in across from him, he saw the driver’s
hand disappear behind the door. Defendant speculated that the driver may have been
trying to put the car in gear, but it appeared to defendant that the driver had a gun in his
hand. Defendant then saw the black car start to drive off and he retrieved his gun.
Defendant clarified that it was the driver’s action of reaching down or lowering his hand
that caused defendant to get the gun. Although the video depicts the black car’s driver’s
side door open slightly shortly before the black car drove away, defendant testified that
he did not see the door open. Defendant “got a little low” because he thought the driver
might start shooting. Defendant testified that he saw the white truck pull in, and then the
next time he saw the black car, it was driving out of the gas station and the driver’s side
door “flew” open. Defendant testified that he thought that the driver was going to try to
get out of his car and start shooting at him. Defendant explained that he decided to start
running towards the black car so that if the driver started to get out, defendant would
have the upper hand. Defendant testified that he was very scared even though he had his
gun out because he believed that he might get shot. Defendant kept running towards the
black car and fired two shots after the black car’s door had shut. Defendant explained
that he believed that the driver was trying to get into a better position to shoot at him and
that he fired because the black car was decelerating. Defendant testified that he did not
want to hurt anyone, so he aimed away from the car and fired two shots to scare the black
car away. After he fired, the black car accelerated again, and defendant ran back to his
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car. Defendant testified that the black car was about a half a block, four “house lengths,”
or within 150 feet away when defendant fired his handgun. Defendant testified that he
was scared and believed that he was acting in self-defense as the black car was driving
away.
DISCUSSION
I. Forfeiture of Prosecutorial Misconduct
A. Parties’ Arguments
Defendant argues that the prosecutor engaged in misconduct twice, once during
cross examination and once during closing arguments. Defendant acknowledges that
defense counsel did not object to either instance of purported misconduct, but argues that
if forfeiture is found, then his defense counsel was constitutionally ineffective.
The People note that defense counsel did not make any objections to prosecutorial
misconduct. They argue that because there is no indication that an objection would have
been futile or that an admonition would have been inadequate, defendant has forfeited his
misconduct claims.
We agree with the People.
B. Legal Standards
“ ‘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.’ ” (People v. Parker (2022) 13 Cal.5th 1, 71–72.) “ ‘The lack of a timely
objection and request for admonition will be excused only if either would have been
futile or if an admonition would not have cured the harm.’ ” (People v. Hoyt (2020)
8 Cal.5th 892, 942–943.)
6.
C. Analysis
There is no dispute that defense counsel failed to object to any form of
prosecutorial misconduct either during cross-examination or closing arguments.
Defendant does not argue an objection would have been futile or contend that an
admonition would have been inadequate to cure any harm, but instead contends that
counsel was ineffective. Based on our review of the record, and because defendant
implicitly concedes forfeiture without identifying any exceptions, we conclude that
defendant’s claim of prosecutorial misconduct has been forfeited. (People v. Parker,
supra, 13 Cal.5th at pp. 71–72; People v. Hoyt, supra, 8 Cal.5th at pp. 942–943; see also
People v. Lopez (2008) 42 Cal.4th 960, 966 [“A defendant whose counsel did not object
at trial to alleged prosecutorial misconduct can argue on appeal that counsel’s inaction
violated the defendant’s constitutional right to the effective assistance of counsel.”].)
II. Ineffective Assistance of Counsel
A. Parties’ Arguments
1. Defendant
Defendant argues that the prosecutor engaged in two forms of misconduct. First,
prior to trial, the prosecutor filed a motion to impeach defendant with five felony
convictions. The trial court determined that the prosecutor could specifically identify
two felonies but could refer to the other convictions only as “felonies.” The prosecutor
did not request that the number of felonies be provided, and the court’s order clearly
permitted only a generic reference to “felonies.” The prosecutor violated the order by
asking defendant if he had been convicted of eight felonies. The sole contested issue was
self-defense, which rested heavily on defendant’s credibility. The prosecutor’s
identification of eight felonies in violation of the court order could have pushed the jury
to find that defendant lacked veracity. Thus, the question was a violation of due process
or at least misconduct under state law that prejudiced his defense. Additionally, in reply,
defendant argues that there could be no valid strategic reason for defense counsel to agree
7.
to an increase of the number of impeachable offenses from five to eight without a
hearing.
Second, the prosecutor misstated the law on self-defense during closing argument.
The prosecutor essentially told the jury that defendant could not have acted reasonably,
and could not invoke self-defense, because he had eight felonies. The prosecutor’s
argument misstated the law and short-circuited the process of determining whether
defendant reasonably perceived an imminent threat. Moreover, the prosecutor’s conduct
constituted structural error because it removed self-defense from the case. If defendant
could never act reasonably or utilize self-defense because of past convictions, then all
testimony and arguments regarding his fears became immaterial.
Defendant also argues that, even if the two instances of misconduct were not
individually enough to demonstrate prejudice, the cumulative effect of the errors was
prejudicial and requires reversal.
2. The People
The People respond that defense counsel was not ineffective. With respect to the
prosecutor’s question on cross-examination, there are several conceivable explanations
for defense counsel’s actions. It is conceivable that there was no objection because there
was no violation of the court’s pre-trial order. The court did not explicitly prohibit
reference to the number of felonies. Also, the court instructed the parties to meet and
confer regarding admission of the felonies, and the issue was not raised again. It is
possible that any issues were addressed between counsel during the meet and confer
efforts. The People also argue that there was no prejudice because the jury heard that
defendant had two prior felony firearm possession convictions and had illegally
purchased a handgun. This adequately demonstrated defendant’s character, and the
jury’s impression would not have been swayed by the fact that defendant had eight felony
convictions.
8.
With respect to closing arguments, the People argue that defense counsel may not
have objected because he knew any objection would be frivolous. It is not a
misstatement of the law to argue that the objective “reasonable person” against whom the
jury evaluates defendant’s conduct in deciding whether he acted in self-defense is not a
person who has suffered eight felony convictions. The prosecutor was entitled to
comment that the personal characteristic of having eight prior felony convictions went
beyond the objective reasonable person standard. The People also argue that there was
no prejudice because the jury was properly instructed on the law.
Finally, the People argue that because there was no deficient performance with
respect to the cross-examination of defendant or the prosecutor’s closing argument, there
is not cumulative error.
We agree with the People that defendant did not receive ineffective assistance of
counsel.
B. Additional Background
1. Pre-Trial Ruling and Questions of Defendant
Prior to trial, the prosecutor moved in limine to admit five prior felonies to
impeach defendant. At the hearing, the prosecutor explained that he wanted to introduce
the felonies if defendant testified at trial. The trial court informed defense counsel that if
defendant testified, “obviously the [prosecutor] is allowed to get into evidence of
[defendant’s] prior convictions for felonies ….” Defense counsel stated that he would
not object if the felonies were unspecified and referred to as “felonies.” The prosecutor
requested that the court not sanitize defendant’s two prior firearm possession convictions
(§ 12021, subd. (a)) if defendant testified. The prosecutor also explained that, even
though the motion listed only one prior conviction for firearm possession, there were
actually two prior convictions for that offense. When the court stated that it saw only one
such conviction, the prosecutor explained: “I just put one just to state that my intention
was to use it. But I have two, one in 2009 and one in 2011.” An off-the-record
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conversation occurred, and the court eventually ruled that “the felonies under [Health and
Safety Code section] 11351.5, [Health and Safety Code section] 11379,[3] [section] 69,
and [section] 273.5, the specific type of felonies cannot be referred to.… But the
[section] 12021(a) [conviction] from 2009 and the [section]12021(a) [conviction] from
2011 can be referred to specifically…. Those are the only two …. I don’t want to hear
about the [Health and Safety Code section] 11379 [conviction].” The prosecutor then
asked how the court would like the felonies introduced, and the court responded by
asking defense counsel about a stipulation. In order to avoid introducing criminal history
packets, defense counsel stated that he was willing to stipulate to the fact of conviction so
long as the section 12021 convictions were referred to by year. The court responded, “I
want you to meet and confer. You make sure you have that cleared up. Okay?” Defense
counsel agreed, and the hearing concluded.
On direct examination, defendant testified that he had a criminal past, had “some
felonies,” and knew that it was illegal for him to possess a gun. On cross-examination,
the prosecutor asked if defendant had twice been convicted of possessing a gun as a
prohibited person, to which defendant responded affirmatively. The prosecutor also
asked, “And what [defense counsel] did not tell you is that you have one, two—you have
eight felonies on record, is that right, Mr. Smith?” Defendant responded that he did not
know how many felonies he had, but that he guessed it was possible that he could have
that many felonies on his record.
3 The prosecutor’s motion erroneously identified the two Health and Safety Code
sections as Penal Code sections.
10.
2. Closing Argument
During closing argument, the prosecutor discussed the self-defense instruction and
the subjective-objective parts of self-defense. The prosecutor explained that a person
must not only subjectively believe that there is imminent danger, but that the person’s
subjective belief also must be objectively reasonable. The prosecutor also informed the
jury that the instructions directed the jury to consider all circumstances known to and
apparent to the defendant. The prosecutor acknowledged that prior knowledge can be
considered. The prosecutor then argued:
“And then once you look at those circumstances, consider what a
reasonable person would do in a similar situation, similar knowledge,
defendant’s belief were reasonable, the danger did not have actually
existed. [Sic.] Reasonable person, it’s not someone with eight felonies.
It’s someone common, [everyday] individuals, it is you, ladies and
gentlemen. You decide what a reasonable person would do.”
The prosecutor also told the jury to judge defendant by his actions, which did not show
self-defense. The prosecutor asked what a reasonable person would believe as the
black car was driving away and argued that a reasonable person would not have gone to a
place where he would be exposed if he truly acted in self-defense. The prosecutor
averred that defendant’s actions showed that he did not believe he was in imminent
danger and that a reasonable person would not have believed defendant to have been in
danger.
During defendant’s closing argument, defense counsel focused on the self-defense
instruction that the jury was to consider all the circumstances as they were known to and
appeared to the defendant. Defense counsel then pointed out that the reasonable person
standard had a “similar knowledge” component, which meant similar knowledge to the
defendant. Defense counsel then argued that defendant could still rely on information
that later proved to be false, and defendant was not required to retreat. Defense counsel
also pointed out that the prosecutor’s argument was not evidence but was simply a guide.
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During rebuttal, the prosecutor argued that if the jury believed that defendant had
been shot at, and if it was assumed that defendant believed that he needed to arm himself,
that he was scared, and did not know what was going to happen, and that he did not have
a felony criminal history, then there was still not self-defense. Through rhetorical
questions, the prosecutor argued that there was no self-defense because the defendant
acted offensively by chasing and shooting at the black car as the black car was attempting
to drive away. The prosecutor emphasized that the jury was to judge defendant’s actions,
not simply his beliefs.
C. Legal Standard
1. Ineffective Assistance of Counsel
The Sixth Amendment guarantees “ ‘ the right to the effective assistance of
counsel.’ ” (Strickland v. Washington (1984) 466 U.S. 668, 686.) “A defendant who
claims to have been denied effective assistance must show both that counsel performed
deficiently and that counsel’s deficient performance caused him prejudice.”
(Buck v. Davis (2017) 580 U.S. 100, 118; see also People v. Johnsen (2021)
10 Cal.5th 1116, 1165 (Johnsen).) A deficient performance is one in which counsel “fell
below an objective standard of reasonableness under prevailing professional norms.”
(People v. Arredondo (2019) 8 Cal.5th 694, 711.) There is “ ‘a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.’ ”
(Woods v. Donald (2015) 575 U.S 312, 315; People v. Stanley (2006) 39 Cal.4th 913,
954.) That is, there is a presumption “that counsel ‘made all significant decisions in the
exercise of reasonable professional judgment.’ ” (Cullen v. Pinholster (2011)
563 U.S. 170, 196; Strickland, at p. 690; People v. Padilla (1995) 11 Cal.4th 891, 935.)
Courts will “ ‘defer[ ] to counsel’s reasonable tactical decisions[.]’ ” (Arredondo, at
p. 711; see also Cullen, at p. 195.) Prejudice occurs where “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been” more favorable to the defendant. (Strickland, at p. 694; Stanley, at
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p. 954.) In turn, “[a] reasonable probability is a probability sufficient to undermine
confidence in the outcome.” (Strickland, at p. 694; Stanley, at p. 954.)
Ineffective assistance of counsel claims should generally be pursued through
habeas corpus proceedings. (People v. Mai (2013) 57 Cal.4th 986, 1009;
People v. Mendoza Tello (1997) 15 Cal.4th 264, 266–268.) This is because on direct
appeal, a court may find deficient performance only if: “ ‘(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.’ ” (Johnsen, supra, 10 Cal.5th at p. 1165; Mai, at p. 1009.)
If counsel’s “ ‘tactics or strategic reasons for challenged decisions do not appear on the
record,’ ” courts will not find ineffective assistance of counsel “ ‘unless there could be no
conceivable reason for counsel’s acts or omissions.’ ” (Johnsen, at p. 1165). Given this
framework, “[r]arely is ineffective assistance of counsel established on [direct] appeal
since the record usually sheds no light on counsel’s reasons for action or inaction.”
(People v. Woodruff (2018) 5 Cal.5th 697, 736.)
2. Prosecutorial Misconduct
“[A] prosecutor’s improper comments will be held to violate the Constitution only
if they ‘so infected the trial with unfairness as to make the resulting conviction a denial of
due process.’ ” (Parker v. Matthews (2012) 567 U.S. 37, 45; see also People v. Dworak
(2021) 11 Cal.5th 881, 909.) Conduct by the prosecutor “that falls short of a federal
due process violation may … violate state law if it ‘involves the use of deceptive or
reprehensible methods to persuade the court or jury.’ ” (Dworak, at p. 910; People v. Bell
(2019) 7 Cal.5th 70, 111.) Prosecutors are “ ‘given wide latitude to vigorously argue
[their] case and to make fair comment on the evidence, including [making] reasonable
inferences or deductions that may be drawn from the evidence.’ ” (Dworak, at p. 910;
see also People v. Lewis (1990) 50 Cal.3d 262, 283 [noting that a prosecutor “has the
right to fully state his views as to what the evidence shows and urge whatever
13.
conclusions he deems proper”].) While “ ‘prosecutors may attack the defense case and
argument’ ” (People v. Krebs (2019) 8 Cal.5th 265, 342), and “ ‘comment upon the
credibility of witnesses based on facts contained in the record’ ” (People v. Peoples
(2016) 62 Cal.4th 718, 796), the prosecutor cannot “misstate facts” (People v. Powell
(2018) 6 Cal.5th 136, 183), “ ‘misstate the law generally’ ” (Bell, at p. 111), “elicit or
attempt to elicit … evidence in violation of a court ruling” (People v. Silva (2001)
25 Cal.4th 345, 373), or “argue facts or inferences not based on the evidence presented.”
(Lewis, at p. 283.) “[W]hen the claim focuses upon comments made by the prosecutor
before the jury, the question is whether there is a reasonable likelihood that the jury
construed or applied any of the complained-of remarks in an objectionable fashion.”
(People v. Samayoa (1997) 15 Cal.4th 795, 841.)
D. Analysis
1. Misconduct During Cross-Examination
a. Deficient performance
Defendant contends his defense counsel was deficient for not objecting that the
prosecutor’s felony conviction questions violated the trial court’s evidentiary ruling.
There is no dispute that defense counsel did not object to this line of questioning and did
not explain on the record why he did not object. Therefore, we will not find a deficient
performance unless there was no conceivable reason for defense counsel’s omissions.
(Johnsen, supra, 10 Cal.5th at p. 1165.)
We agree with the People that the prosecutor did not violate the trial court’s
evidentiary ruling by specifying the number of felony convictions in defendant’s record.
The court made clear that if defendant testified, the prosecutor would be able to use the
felonies for impeachment purposes. However, the manner of use was to be sanitized by
prohibiting the specific identification of any felony, save for the two felon in possession
of a firearm convictions. The court did not expressly prohibit referencing the number of
felonies suffered, and neither the court nor the parties argued or expressed concern that
14.
there was a problem with identifying the number of felonies. Thus, the court’s concern
was to sanitize the description or naming of the felonies, not to limit the number of
felonies that could be used to impeach. This is consistent with case law. “[T]here is no
limitation on the number of prior [felony] convictions” that can be admitted to impeach a
defendant’s credibility. (People v. Mendoza (2000) 78 Cal.App.4th 918, 927;
People v. Muldrow (1988) 202 Cal.App.3d 636, 646.) Indeed, a series of crimes is
generally more probative of a defendant’s veracity than a single crime (People v. Clark
(2011) 52 Cal.4th 856, 932; People v. Stewart (1985) 171 Cal.App.3d 59, 66), and courts
have recognized that substantially limiting the number of felonies to be used for
impeachment may improperly clothe the defendant in a “false aura of veracity[.]”
(Mendoza, at p. 927; see People v. Hinton (2006) 37 Cal.4th 839, 888 [holding that
impeachment through the available felonies, although they were similar to the charged
offenses, was proper because otherwise the testifying defendant would have had a “false
aura of veracity”].) Allowing impeachment after the identification of six felony
convictions, but then permitting only a general reference to “felonies” without identifying
the number of felonies, implicates the danger of clothing defendant with a “false aura of
veracity[.]” (Mendoza, at p. 927.) Specifically, the implication could be that defendant
suffered as few as two felony convictions when the reality is quite different. In the
absence of a clear ruling by the court to the contrary, we cannot hold that that the court
prohibited references to the number of defendant’s felony convictions or that the
prosecutor engaged in misconduct by identifying the number of defendant’s felony
convictions.
Because we conclude that the trial court did not proscribe references to the number
of defendant’s convictions, we can conceive of an explanation for why defense counsel
did not object to the prosecutor’s questioning. After ruling that defendant’s felonies were
to be referred to generally as “felonies,” the court required the parties to meet and confer
and “clear up” how the felonies would be introduced. It can reasonably be assumed that
15.
the prosecutor and defense counsel followed the court’s order and met to determine the
method of introducing the felonies. Considering the prosecutor’s identification of
numerous felony convictions, as well as the case law that recognizes the danger of
clothing a defendant with a false aura of veracity, it is possible that defense counsel and
the prosecutor agreed that the prosecutor could generally refer to the specific number of
felonies on defendant’s record (except for the two section 12021 convictions, which
could be specifically identified). Such an agreement would be consistent with both the
court’s evidentiary ruling and existing case law.
In reply, defendant contends that there was no reasonable basis for defense
counsel to agree to increase the number of felony convictions to eight when only
five felony convictions were disclosed and subject to the trial court’s review. Defendant
does not argue that the eight felony conviction figure is incorrect or that defendant does
not actually have eight felony convictions that could be used for impeachment.
Moreover, the probation officer’s report identified two additional felony convictions that
could have been admitted for impeachment purposes.4 At sentencing, defendant’s
4 The probation report showed that defendant had felony convictions for concealing
a firearm within a vehicle (former § 12025, subd. (a)(1), now § 25400, subd. (a)(1)), and
for felon in possession of ammunition (former § 12316, subd. (b)(1), now § 30305,
subd. (a)(1)). Section 12025 has been held to be a crime of moral turpitude for purposes
of impeachment. (People v. Aguilar (2016) 245 Cal.App.4th 1010, 1019.) Although we
are unaware of any published authority that analyzes section 12316, subdivision (b)(1)
for impeachment, “[n]umerous crimes involving firearms have been held to involve
moral turpitude.” (Id. at 1018.) Crimes involving firearm possession by a felon are
deemed crimes of moral turpitude because the felon’s prior conduct demonstrates that he
or she is likely to use the firearm to do evil. (People v. Robinson (2011)
199 Cal.App.4th 707, 713–715; People v. Littrel (1986) 185 Cal.App.3d 699, 702–703.)
Ammunition is meant to do one thing—be discharged from a firearm. It is from the
marriage of ammunition with a firearm that the greatest potential for evil exists. Given
ammunition’s relationship to firearms, and the harm that can result from the use of
ammunition, we detect no reason why the rationales of Robinson and Littrel would not
apply to the section 12316 conviction. Therefore, the trial court could have relied on
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counsel did not dispute the accuracy of any conviction in the probation report.5
Therefore, the record demonstrates a basis for the eight felony figure.
In its evidentiary ruling, the trial court considered six felony convictions (the
five felony convictions disclosed in the motion and the second section 12021 conviction
identified at the hearing) and permitted the prosecutor to use all felonies for
impeachment. Again, the only expressed concern and limitation on the use of the
felonies dealt with how to reference the felony convictions, not with the number of
convictions. There is nothing in the record that reasonably indicates that the court would
have excluded the two undisclosed felony convictions, other than by prohibiting the
prosecutor from identifying them by name. Further, since the two additional felonies
could only be referred to as “felonies,” there appears to be little difference between
impeachment through a reference to “six felonies” and impeachment through a reference
to “eight felonies.” Given existing case law and the court’s ruling, we believe that
counsel could have reasonably concluded that the difference between six and
eight convictions was insubstantial and that the court would not have excluded the
two undisclosed felonies for purposes of impeachment. In light of the strong
presumption that counsel’s representation was reasonable and not deficient, we cannot
conclude that counsel was deficient for permitting the prosecutor to reference
eight felonies. (Woods v. Donald, supra, 575 U.S at p. 315; Cullen v. Pinholster, supra,
563 U.S. at pp. 195–196; see also Johnsen, supra, 10 Cal.5th at p. 1165.)
In sum, in the face of a silent record, we conclude that it is reasonably conceivable
that defense counsel and the prosecutor met and conferred and agreed that the prosecutor
Aguilar and the rationales of Littrel and Robinson to admit these two additional felony
convictions.
5 At sentencing, defense counsel’s only correction regarding the accuracy of
defendant’s prior convictions identified in the probation report was regarding the date of
defendant’s prior prison commitment.
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could question defendant about being convicted of “eight felonies,” but could only
specifically identify two section 12021 offenses. Because this is a conceivable
explanation for defense counsel’s failure to object to the prosecutor questioning
defendant about eight felony convictions, defendant has failed to show deficient
performance. (Johnsen, supra, 10 Cal.5th at p. 1165.)
b. Prejudice
In the alternative, even if we concluded that counsel was deficient for not
objecting to the reference to eight felonies, we would conclude that this error is not
prejudicial. First, the prosecutor never fully established before the jury that defendant
had been convicted of eight felonies. As explained above, when asked about
eight felonies, defendant first responded that he did not know the actual number but that
he guessed it was possible that eight was accurate. Therefore, the jury only knew that
defendant had been convicted of a number of felonies that might or might not be as high
as eight. Second, we accept that theoretically there may be a case in which the number of
felonies is so high that admitting all convictions would be unduly prejudicial. However,
the prosecutor disclosed six convictions at the hearing, and there was no suggestion of
limiting that figure. Therefore, the prosecutor could have asked defendant if he had been
convicted of six felonies, and such a question would not have been objectionable as a
violation of the court’s evidentiary ruling. We do not see a significant difference
between six and eight felonies in terms of assessing defendant’s veracity, particularly
when they are referred to simply as “felonies.” Courts have approved of impeachment
through the use of six felonies (People v. Green (1995) 34 Cal.App.4th 165, 183), and
10 felonies. (People v. Mendoza, supra, 78 Cal.App.4th at p. 927.) While eight is a high
figure, it is a figure that nevertheless fits within the numerical range of offenses that have
been used to impeach. (Cf. People v. Leonard (2014) 228 Cal.App.4th 465, 496–498
[holding that there was not prejudicial error in excluding a Florida misdemeanor
conviction to impeach a witness because, inter alia, the witness had been impeached with
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eight felony convictions].) Because the eight felony figure was not actually established,
and there is no apparent meaningful difference between a reference to six felonies (which
would have been permissible) and eight felonies, we conclude that defendant has not
demonstrated prejudice from defense counsel’s failure to object.
2. Misconduct During Closing Argument
a. Deficient Performance
As quoted above, during closing argument, the prosecutor stated in part:
“Reasonable person, it’s not someone with eight felonies. It’s someone common,
[everyday] individuals, it is you, ladies and gentlemen.” Defendant contends that this
statement meant that individuals like him who have eight felonies can never be
reasonable or can never reasonably act in self-defense. After reviewing the jury
instructions and the closing arguments, we do not agree with defendant’s characterization
of the prosecutor’s statement.
In context, the prosecutor was discussing the self-defense jury instruction,
including distinctions between subjective and objective beliefs. The self-defense
instruction in part informed the jury that the defendant acted in self-defense if he
reasonably believed that he was in imminent danger and reasonably believed that
immediate force was necessary to defend against the danger. The instruction also
informed the jury that, when deciding whether defendant’s beliefs were reasonable, the
jury should “consider all the circumstances as they were known to and appeared to the
defendant and consider what a reasonable person in a similar situation with similar
knowledge would have believed.” It was in reference to this aspect of the jury instruction
that the prosecutor made his “reasonable person” comment. The prosecutor was stating
that the reasonable person described in the instructions was an ordinary individual, like
the jury members. The prosecutor’s reference to eight felonies was an explanation that a
reasonable person does not have any extraordinary attributes, such as eight felony
convictions. The prosecutor did not expressly tell the jury that the defendant is not a
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reasonable person, or that the defendant could never rely on self-defense, simply because
he had eight felonies. Therefore, we read the prosecutor’s statement as an explanation of
who/what a reasonable person is or is not, to wit the reasonable person is an ordinary
person and not someone who has eight felonies. The statement was not an argument that
the defendant was automatically excluded from self-defense or reasonable behavior
because he had eight felonies.
This conclusion is consistent with existing case law. Self-defense requires that a
defendant have “an honest and reasonable belief that bodily injury is about to be inflicted
on him.” (People v. Minifie (1996) 13 Cal.4th 1055, 1064, italics omitted.) A
“reasonable belief” is judged “ ‘from the point of view of a reasonable person in the
[defendant’s] position[.]’ ” (People v. Humphrey (1996) 13 Cal.4th 1073, 1083.) A
“ ‘reasonable person’ is a hypothetical individual who is intended to represent a sort of
‘average’ citizen.” (People v. Mendoza (2007) 42 Cal.4th 686, 703.) The jury must
consider all the facts and circumstances confronting the defendant in order to determine
whether the defendant acted in a manner consistent with how a reasonable person would
have acted to protect himself. (Humphrey, at pp. 1082–1083.) Of necessity, the
knowledge and circumstances of a defendant will vary from case to case. However, we
are aware of no case that holds the reasonable person component of self-defense will
likewise vary. Indeed, such a variance is directly contrary to what a reasonable person
is—an average citizen. As a result, courts have rejected assessing the reasonableness of a
belief through a “reasonable battered woman standard” (Humphrey, at p. 1087), “a
reasonable gang member standard” (ibid.), “a reasonable street fighter standard”
(People v. Romero (1999) 69 Cal.App.4th 846, 854), or “a reasonable mentally ill person
standard” (People v. Horn (2021) 63 Cal.App.5th 672, 684–685). While certain aspects
of being a battered woman, a gang member, a street fighter, or a mentally ill person may
be relevant to assessing a defendant’s honest subjective belief or be a relevant part of a
defendant’s knowledge, the key is whether a reasonable person would have believed that
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an imminent threat existed and would have acted in a similar manner as the defendant.
(Humphrey, at pp. 1086–1087; see also People v. Brady (2018) 22 Cal.App.5th 1008,
1015–1017.) Defendant cites no cases in which a “reasonable felon standard” has been
accepted, i.e., a case in which the “reasonable person” becomes “a reasonable person
with felony convictions.” The absence of such a case is hardly surprising since the
average citizen is not a felon, let alone a multi-conviction felon. Therefore, when the
prosecutor discussed the self-defense instruction and stated that a reasonable person was
not someone with eight felonies, his statement was correct.
Our conclusion that the prosecutor’s statement was a description of a reasonable
person and not an attempt to exclude defendant entirely from self-defense is also
supported by the remainder of the prosecutor’s closing argument and his rebuttal. After
making the eight felony statement, the prosecutor requested that the jury judge defendant
by his actions and that defendant’s actions did not line up with self-defense. The
prosecutor argued that defendant did not seek cover or any kind of obstruction between
himself and the black car even though a reasonable person would have done so. The
prosecutor also argued that defendant ran after the black car to get the upper hand and
shot at the black car as it was driving away. Moreover, in rebuttal, the prosecutor asked
the jury to accept hypothetically that defendant had to get a gun, did not know what was
going to happen, and was not a felon. The prosecutor then argued that there was still no
self-defense because after defendant got his gun, he went on the offensive, chased after
the black car, and shot as the black car was driving away. The prosecutor further argued
that defense counsel wanted the jury to accept defendant’s beliefs without judging
defendant’s actions, but the jury was there to judge defendant’s actions. In other words,
at no time after the “eight felonies statement” did the prosecutor ever say that the
defendant’s eight felonies disqualified him from pursuing self-defense or from acting as a
reasonable person would have acted. Rather, the prosecutor clearly highlighted
defendant’s conduct and argued that defendant’s conduct was not objectively consistent
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with self-defense. That is, the focus was on defendant’s actions, not his status as a felon.
Such a focus is appropriate in analyzing claims of self-defense. (People v. Humphrey,
supra, 13 Cal.4th at 1083 [explaining that for purposes of self-defense, the jury considers
the facts and circumstances in determining whether the defendant acted in a manner
consistent with how a reasonable person would have acted to protect himself].)
Therefore, the prosecutor’s closing and rebuttal arguments were not consistent with an
argument that defendant’s status as an eight-time felon precluded him from claiming
self-defense or being able to act reasonably.
In sum, we do not accept defendant’s characterization of the prosecutor’s
eight felony comment. We conclude that the prosecutor was commenting about the
nature of the reasonable person component of self-defense and was not arguing that
defendant’s status as an eight-time felon disqualified him from pleading self-defense or
from acting as a reasonable person. Because the prosecutor’s statement was consistent
with the law, there was neither prosecutorial misconduct nor deficient performance for
failing to object to prosecutorial misconduct.
b. Prejudice
In the alternative, if we accept that defense counsel was ineffective for failing to
object to the prosecutor’s eight felony statement, we would conclude that defendant has
failed to show prejudice. Because it is “ ‘ “presum[ed] that jurors treat the court’s
instructions as a statement of the law by a judge, and the prosecutor’s comments as words
spoken by an advocate … attempt[ing] to persuade[,]” ’ ” if a prosecutor’s “ ‘argument
runs counter to instructions given a jury, [appellate courts] will ordinarily conclude that
the jury followed the latter and disregarded the former[.]’ ” (People v. Centeno (2014)
60 Cal.4th 659, 676; People v. Osband (1996) 13 Cal.4th 622, 717.) In this case, the jury
was instructed through CALCRIM No. 316 that the arguments of counsel are not
evidence and was correctly instructed on the law of self-defense through CALCRIM
No. 3470. The self-defense instruction did not mention felonies or felon status in any
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fashion. Moreover, defense counsel’s closing argument highlighted the self-defense
instruction and noted that the prosecutor’s arguments were simply a guide. Under these
circumstances, there is no basis to believe that the jury followed the single utterance by
the prosecutor and failed to follow the written instructions given by the trial court.
3. Cumulative Error
Defendant contends that the cumulative effect of the allegedly unchecked
prosecutorial misconduct resulted in prejudice. However, “[w]e have found no error, and
where we assumed error, we have found no prejudice. Nor do we discern cumulative
prejudice.” (People v. Duong (2020) 10 Cal.5th 36, 75; see People v. Westerfield (2019)
6 Cal.5th 632, 728; see also People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068 [“There
can be no cumulative error if the challenged rulings were not erroneous.”].)
III. Section 654
Section 654 prohibits “multiple punishment for a single act or omission, or an
indivisible course of conduct.” (People v. Deloza (1998) 18 Cal.4th 585, 591.) In the
context of multiple convictions, section 654 may operate to require that one sentence be
imposed, but that the other sentences be imposed and stayed. (Id. at p. 592.) When
applicable, section 654 will also preclude the imposition of concurrent sentences.
(People v. Duff (2010) 50 Cal.4th 787, 796.)
A. Counts 1 and 2
With respect to counts 1 and 2, the trial court and prosecutor recognized that
section 654 applied to count 2. However, instead of staying the sentence on count 2, the
court ordered the sentence to run concurrently with count 1. The parties both agree that
this was error.
We also agree that the trial court erred. However, under section 654, the court has
the discretion to choose which offense will have a sentence imposed and which offenses
will have their sentences stayed, irrespective of which offense carries the longer term.
(People v. Aguayo (2022) 13 Cal.5th 974, 992, fn. 6.) Considering that the court
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sentenced defendant to a total of seven years and recognized that section 654 applied to
count 2, we are satisfied that the court intended for count 1 to be the principal non-stayed
offense. Therefore, we hold that the sentence on count 2 is required to be stayed pursuant
to section 654. (People v. Deloza, supra, 18 Cal.4th at 591–592; see also Aguayo, at
p. 992, fn. 6.)
B. Counts 3 and 4
With respect to counts 3 and 4, the trial court did not discuss the possible
application of section 654. The court imposed sentences for both counts to run
concurrently with count 2. The parties agree that, because the only ammunition
possessed by defendant was in his handgun, the court erred by not staying the sentence
for count 4.
“Courts have found section 654 prohibits punishing a defendant for both being a
felon in possession of a firearm and unlawful possession of ammunition when all of the
ammunition in question was loaded into the firearm or had been fired from it.”
(People v. Broadbent (2020) 47 Cal.App.5th 917, 922; see also People v. Lopez (2004)
119 Cal.App.4th 132, 138.) Because there is no dispute that the only ammunition
possessed by defendant was in his handgun, defendant cannot be separately punished for
both being a felon in possession of a firearm and being a felon in possession of
ammunition. (Broadbent, at p. 922; Lopez, at p. 138.) Unlike counts 1 and 2, however,
the trial court did not clearly indicate which count was to be stayed. Instead, the court
imposed two-year concurrent sentences for both offenses.
Pursuant to section 1170, the triad applicable to these two felonies is 16 months,
two years, and three years. (§ 1170, subd. (h)(1).) Thus, there is no distinction in terms
of the possible sentences for these felonies. Given that the triads for these felonies are
identical, and the court imposed identical sentences, we see no utility in ordering a
resentencing so that the court can decide whether count 3 or count 4 will be stayed.
Instead, and because there is no apparent difference or effect from this course of action,
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we will accept the parties’ arguments and order count 3 to be imposed and count 4 be
stayed pursuant to section 654.
IV. Concurrent Sentencing
The trial court sentenced defendant to two years on count 3 but ordered the
sentence to run concurrently with count 2, not count 1. As discussed above, the five-year
sentence on count 2 must be stayed pursuant to section 654. Defendant notes that counts
3 and 4 were ordered to run concurrently with count 2, and, of course, argued that counts
2 and 4 must be stayed. However, neither defendant nor the People address the
incongruity of making one count run concurrently with another count that must be stayed.
Nevertheless, the parties both agree that the sentence on count 1 should remain, the
sentences on counts 2 and 4 should be stayed, and the sentence on count 3 should run
concurrently. Further, since count 1 is the principal sentence (and count 2 must be
stayed, in any event), count 1 is the only sentence with which count 3 may run
concurrently. Because the parties are requesting the same result, and because the result is
consistent with the seven-year total sentence that was imposed and clearly intended by
the court, we will order the superior court clerk to clarify that the sentence on count 3 will
run concurrently with the sentence on count 1.
V. Minute Order and Abstract of Judgment
Appellate courts have “ ‘the inherent power to correct clerical errors in [the
record] so [that the record] reflect[s] the true facts.’ ” (People v. Mitchell (2001)
26 Cal.4th 181, 185.) “Any discrepancy between the judgment as orally pronounced and
as recorded in the clerk’s minutes or abstract of judgment is presumed to be the result of
clerical error.” (People v. Leon (2020) 8 Cal.5th 831, 855.) Thus, a court’s oral
pronouncement will control over a clerk’s minute order (People v. Farell (2002)
28 Cal.4th 381, 384, fn. 2), or over an abstract of judgment (Mitchell, at p. 185).
25.
Here, there is no dispute that both the June 28, 2022 abstract of judgment
(“June 28 abstract”)6 and the April 4, 2022 minute order (“April 4 order”)7 do not match
the court’s oral pronouncement of sentence.8 Both parties agree that the June 28 abstract
and the April 4 order should be corrected to properly reflect and coincide with the court’s
oral pronouncement of sentence.
With respect to the June 28 abstract, because of our resolution of the section 654
issues, an amended abstract will, of necessity, have to be issued. Therefore, we will not
order that the June 28 abstract be corrected.
With respect to the April 4 minute order, we recognize that even if this minute
order is corrected to properly reflect the oral pronouncement of sentence, the minute
order will not accurately reflect the legal and operative sentence that results from this
order. Nevertheless, we have the authority to correct a record so that it accurately reflects
the true facts and events of a case. (People v. Mitchell, supra, 26 Cal.4th at p. 185.) A
true fact of this case is that the trial court imposed a particular, albeit erroneous, sentence
on April 4. The erroneous sentence is corrected through this order. In order to correct
the errors in the minute order so that it corresponds to the actual oral pronouncement, we
6 The original abstract of judgment was entered on April 7, 2022, and a new abstract
of judgment was entered on June 28, 2022. The June 28 abstract of judgment is the
operative abstract.
7 The original minute order was entered on April 4, 2022, but was amended on
April 6, 2022, and again on April 13, 2022. Therefore, the operative minute order is the
April 4 minute order as amended on April 6 and April 13. For purposes of this order, we
will simply refer to the operative minute order as the April 4 order.
8 The April 4 minute order shows that count 1 is to run concurrently with count 2;
the sentence on count 1 is five years and stayed, and the sentence on count 2 is the
midterm of three years, plus an additional four years on the personal use enhancement.
To properly reflect the oral pronouncement, the minute order should show that the
sentence on count 1 is the midterm of three years, plus an additional four consecutive
years for the personal use enhancement, and that the sentence on count 2 is the midterm
of five years, concurrent to count 1, and not stayed.
26.
will follow the parties’ request and order that the April 4 order be amended to accurately
reflect the April 4, 2022 oral pronouncement.
DISPOSITION
The clerk of the Tulare County Superior Court is directed to correct the April 4,
2022 minute order to conform with the court’s oral pronouncement of sentence on
April 4, 2022, as found at pages 607–609 of the reporter’s transcript and as described in
footnote 8 of this opinion. The clerk of the Tulare County Superior Court is also directed
to issue an amended abstract of judgment reflecting the following sentence: on count 1,
three years (the midterm), plus a four-year personal use of a firearm enhancement; on
count 2, five years (the midterm), stayed pursuant to section 654; on count 3, two years
(the midterm), concurrent with the sentence on count 1; and on count 4, two years
(the midterm), stayed pursuant to section 654. In all other respects, the judgment is
affirmed.
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