People v. Rhine CA4/1

Filed 7/28/23 P. v. Rhine CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080806
Plaintiff and Respondent,
v. (Super. Ct. No. BAF2100096)
JASON ANTHONY RHINE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Rene Navarro, Judge. (Retired Judge of the Santa Clara Sup. Ct. assigned by
the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Jason Anthony Rhine, in pro. per.; and Laura P. Gordon, under
appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
Jason Anthony Rhine appeals the judgment sentencing him to prison
for the first degree murder of Daniel Figueroa and for other crimes. After his
appointed counsel filed a brief raising no claims of error pursuant to People v.
Wende (1979) 25 Cal.3d 436 (Wende), Rhine filed a supplemental brief listing
eight issues he wanted us to review. We have reviewed the record,
considered the issues Rhine listed, and conclude none has merit. We
therefore affirm the judgment.
I.
BACKGROUND
We here set out a brief summary of the facts needed for a general
understanding of the case. Additional facts relevant to the issues raised by
Rhine will be added as needed to the discussion of those issues.
A. Shooting and Antecedent Events
Rhine is the brother of Sonia Estrada. Estrada began dating Figueroa
in 2013 when they lived in Banning and continued to do so until September
2020, when he moved out of California “to try to better himself.” In
November 2020, Figueroa telephoned Estrada and told her he was going to
take a bus back to California. Estrada picked Figueroa up in West Covina
and drove him back to Banning, where he stayed with Estrada and other
members of her family at their house for about 10 days, and then, over
Estrada’s objection, moved to his sister’s house. Estrada then stopped all
contact with Figueroa.
On the night of January 11, 2021, Figueroa surprised Estrada and her
brother-in-law, Jonathan Martinez, as they were returning home. Figueroa
grabbed Estrada’s arm and demanded to speak to her, and she agreed.
Martinez left Estrada outside and entered the house, where he saw Rhine
sleeping on a couch. Estrada and Figueroa remained outside and talked for
about 15 minutes, when Estrada put her handbag down so that she could don
a sweater. Estrada’s wallet and cell phone were in the handbag. Figueroa
snatched the handbag and fled.
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Estrada went inside the house, awakened Rhine, and told him Figueroa
had taken her handbag. Estrada and Martinez drove to Figueroa’s sister’s
house, and Rhine drove there separately. When Rhine knocked on the door
and asked for Figueroa, Salena Holmes, who also lived at Figueroa’s sister’s
house, answered and said he was not there. Rhine instructed Holmes to tell
Figueroa that if he did not return Estrada’s handbag, Rhine was “going to put
a hole in him.”
Estrada and Martinez then drove around looking for Figueroa. During
the drive, she called her own cell phone. Figueroa answered and told Estrada
to go to a certain location by herself if she wanted her handbag back. When
Estrada arrived at the location with Martinez, Figueroa saw Martinez in the
vehicle, smashed Estrada’s cell phone, and ran off with her handbag.
Figueroa later sent Estrada a Facebook message that he would leave the
handbag in her father’s truck. Holmes sent Rhine a Facebook message that
Figueroa had put Estrada’s handbag in the truck. When Estrada retrieved
the handbag on the morning of January 12, 2021, $200 and a vape pen were
missing.
Between 8:01 and 8:04 a.m. on January 12, 2021, Rhine exchanged
messages on Instagram with another user. Rhine’s account profile contains
the word “diablo,” the Spanish word for “devil” (Webster’s 3d New Internat.
Dict. (2002) p. 621), which he uses as his rap name. Rhine told the other user
that he had been “[h]unting some lame” all night long. Rhine also wrote that
he was going to Figueroa’s sister’s house and “[b]eing the driver and the
shooter sucks.” According to Rhine, “Life is a bitch when you’re the driver
and the shooter,” is a lyric from one of his rap songs.
About 10 minutes after the Instagram exchange, Rhine knocked on the
door of Figueroa’s sister’s house. When Holmes answered the door, Rhine
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told her to tell Figueroa to come outside to take a ride with him. Figueroa
refused, went to his room, and closed the door. Rhine then entered the house,
went to Figueroa’s room, and asked, “Why are you going to make me do this
to these people[?] You think it’s okay for you to f**k with my family and I
don’t f**k with your[s?]” Rhine also asked Figueroa whether he broke
Estrada’s cell phone and whether he had any money. Figueroa responded,
“Give me a couple of days to come up with [the] money, and I’ll give it to you.”
Rhine responded, “By the time I come back, you better have that f**king
money.” Rhine exited the house, reentered with a gun, fired two shots at
Figueroa, and then left. Figueroa died of a gunshot wound to the chest.
When police arrived, they found Figueroa’s corpse lying face down on
the kitchen floor. They found no weapons near the corpse but did find a
machete in its sheath under the mattress in Figueroa’s bedroom. Rhine later
claimed he shot Figueroa because Figueroa jumped at him, he thought
Figueroa was going to hit him with the machete, and he needed to defend
himself.
B. Criminal Proceedings
The People charged Rhine with murder (Pen. Code, § 187, subd. (a);
undesignated section references are to this code), burglary (§ 459), and
possession of a firearm by a felon (§ 29800, subd. (a)(1)). The People alleged
Rhine personally and intentionally discharged a firearm causing death in
committing the murder (§ 12022.53, subd. (d)) and personally used a firearm
in committing the burglary (§ 12022.5, subd. (a)). The People also alleged
Rhine had a prior conviction that qualified as a serious felony for purposes of
a five-year enhancement (§ 667, subd. (a)(1)) and as a strike for purposes of
the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12).
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The case proceeded to a jury trial. Evidence was presented over the
course of several days in March and April 2022. The jury was instructed on
first and second degree murder, voluntary manslaughter as a lesser included
offense of murder, and self-defense, among other matters. The jury found
Rhine guilty of first degree murder, first degree burglary, and possession of a
firearm by a felon. It found the firearm enhancement allegations true, and,
based on the parties’ stipulation, found the prior conviction allegations true.
The trial court denied Rhine’s motion to strike the prior conviction
allegations and firearm enhancements. The court sentenced Rhine to prison
on May 9, 2022, for an aggregate term of 80 years to life. The term consisted
of 25 years to life for the murder conviction (§ 190, subd. (a)), doubled to 50
years to life based on the prior strike conviction (§§ 667, subd. (e)(1), 1170.12,
subd. (c)(1)), plus a consecutive term of 25 years to life for the attached
firearm enhancement (§ 12022.53, subd. (d)), plus a consecutive term of five
years for the prior serious felony conviction (§ 667, subd. (a)(1)). The trial
court imposed and stayed execution of determinate prison terms on the other
convictions and firearm enhancement. (§ 654, subd. (a).) The court imposed
a restitution fine of $300 (§ 1202.4, subd. (b)) and a parole revocation
restitution fine in the same amount (§ 1202.45, subd. (a)).
II.
DISCUSSION
Rhine’s appointed counsel filed a brief pursuant to Wende, supra,
25 Cal.3d 436, which summarized the facts and proceedings of the case,
asserted no claims of error, and invited us to conduct an independent review
of the record for prejudicial error. Counsel listed 17 issues “to assist the court
in conducting its independent review of the record” (see Anders v. California
(1967) 386 U.S. 738, 744), and in a supplemental brief Rhine selected eight of
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those issues for us to review. We have already provided the “brief description
of the facts and procedural history of the case, the crimes of which the
defendant was convicted, and the punishment imposed” that is required in an
opinion in a Wende appeal. (People v. Kelly (2006) 40 Cal.4th 106, 123-124.)
We now proceed, as required by Kelly, to “describe[ ] the contentions
personally raised by the defendant and the reasons those contentions fail.”
(Id. at p. 124.)
First, Rhine contends the multiple references to his moniker “Diablo”
during trial may have caused the jury to be biased and prejudiced against
him and thereby denied him a fair trial. In presenting testimony about
Rhine’s Instagram account records, the prosecutor asked an investigator
whether Rhine’s profile contained the word “Diablo,” and then asked about
messages sent by “Diablo.” Rhine’s counsel asked the investigator whether
he knew one of the messages contained a “lyric from Diablo’s rap music.”
Rhine testified on direct examination that he is “a rapper in the Banning
community,” uses “Diablo” as his “rap name,” and the message that “[b]eing
the driver and the shooter sucks” was a lyric from one of his rap songs. Such
“brief, mild and factual” uses of Rhine’s moniker to identify him as the sender
of the Instagram messages “could not have been prejudicial.” (People v.
Brown (2003) 31 Cal.4th 518, 551.)
Second, Rhine contends the prosecutor improperly attempted to exploit
rap lyrics spoken by him as evidence of guilt, in violation of his rights to
freedom of speech and artistic expression. He cites recent legislation limiting
the admissibility of “a form of creative expression,” including rap lyrics, in
criminal proceedings. (Evid. Code, § 352.2, enacted by Stats. 2022, ch. 973,
§ 2, eff. Jan. 1, 2023.) Rhine may not rely on that legislation to seek reversal
of the judgment, however, because the prosecutor did not attempt to exploit
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the rap lyrics to make Rhine look guilty. It was Rhine’s counsel who
introduced the issue of rap lyrics at trial, by asking the prosecutor’s
investigator whether he knew the Instagram message that “[b]eing the driver
and the shooter sucks” was a lyric from one of Rhine’s rap songs and later
asking Rhine about the message. Because Rhine “ ‘is responsible for the
introduction of [this] evidence, he cannot complain on appeal that its
admission was error.’ ” (People v. Ramos (1997) 15 Cal.4th 1133, 1168;
accord, People v. Williams (1988) 44 Cal.3d 883, 912 [“It is axiomatic that a
party who himself offers inadmissible evidence is estopped to assert error in
regard thereto.”].)
Third, Rhine contends admission of a witness’s testimony that she
“work[ed] for the Banning Police Department, and [was] assigned to the
Riverside County Gang Impact Team” was prejudicial error because he was
not on trial for a gang-related crime. Rhine forfeited this contention by
failing to object to the testimony at trial. (Evid. Code, § 353, subd. (a); People
v. Schultz (2020) 10 Cal.5th 623, 679; People v. Murphy (2022) 80 Cal.App.5th
713, 732.) The contention also lacks merit. In cases not involving a gang-
related crime or enhancement, reference to a defendant’s gang involvement
may be prejudicial and should not be allowed if its probative value is
minimal. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) The witness
did not say Rhine was a gang member or the crimes at issue were gang
related. No prejudice could have resulted from her “fleeting and minor”
statement that she was assigned to a gang unit, which merely provided
identifying background information and was never mentioned again. (People
v. Mendoza (2000) 24 Cal.4th 130, 163; cf. People v. Valdez (2004) 32 Cal.4th
73, 123 [detective’s “fleeting reference to ‘jail’ ” as source of defendant’s
photograph in lineup “was not ‘so outrageous or inherently prejudicial that
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an admonition could not have cured it’ ”]; People v. Franklin (2016)
248 Cal.App.4th 938, 956 [“none of the three vague and fleeting references to
appellant’s criminal history resulted in incurable prejudice or irreparably
damaged appellant’s chance of obtaining a fair trial”].)
Fourth, Rhine contends the trial court prejudicially erred by excluding
an autopsy toxicology report that Figueroa had methamphetamine in his
system. According to Rhine, the report may have helped prove Figueroa’s
state of mind and behavior as pertinent to Rhine’s assertion of self-defense.
The prosecutor moved in limine to exclude the toxicology report as irrelevant.
(Evid. Code, §§ 210, 350.) At the hearing on the motion, the court advised
Rhine’s counsel he would need an expert to testify how the
methamphetamine made Figueroa aggressive or otherwise affected his
behavior. Counsel responded: “I’m not anticipating having evidence as to
how [Figueroa] was acting strange or under the influence of drugs in some
manner that day, and so therefore I don’t really have anywhere to go with it
from my perspective.” Having failed to pursue the matter after making no
offer of proof as to what testimony an expert would have given about the
effect of methamphetamine on Figueroa’s behavior nor otherwise establishing
the relevance of the toxicology report, Rhine has not shown error in its
exclusion. (Evid. Code, § 354, subd. (a); People v. Anderson (2001) 25 Cal.4th
543, 580-581; People v. Sperl (1976) 54 Cal.App.3d 640, 657.)
Fifth, Rhine contends the prosecutor committed misconduct and
deprived him of a fair trial by asking him during cross-examination whether
he had been convicted of “a felony assault, along with admitting a gang
allegation.” (Italics added.) The trial court previously ruled Rhine’s prior
conviction could be used to impeach him (Evid. Code, § 788), but excluded any
reference to the gang enhancement allegation as more prejudicial than
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probative (id., § 352). Rhine, however, neither objected to the prosecutor’s
question when it was asked nor requested an admonition to the jury to
disregard the question and answer; and he does not contend an objection
would have been futile and an admonition would have failed to cure any
harm. He therefore forfeited this claim of prejudicial prosecutorial
misconduct. (People v. Fayed (2020) 9 Cal.5th 147, 204; People v. McDermott
(2002) 28 Cal.4th 946, 1001.) Were we to overlook the forfeiture, we would
reject the claim on the merits. “ ‘ “It is, of course, misconduct for a prosecutor
to ‘intentionally elicit inadmissible testimony’ ” ’ ” (People v. Trinh (2014)
59 Cal.4th 216, 248), but such misconduct is not always prejudicial (id. at
p. 249). The prosecutor referenced the gang enhancement allegation attached
to Rhine’s prior assault conviction only briefly and then moved on to other
topics. The reference therefore “ ‘constituted an isolated instance’ ” of
misconduct that was harmless, not “an egregious pattern of conduct that
rendered the trial fundamentally unfair in denial of [Rhine’s] federal
constitutional right to due process of law.” (People v. Smithey (1999)
20 Cal.4th 936, 961.)
Sixth, Rhine contends his counsel was ineffective for failing to object to
the prosecutor’s improper question about the gang enhancement of the prior
felony assault conviction. But, “deciding whether to object is inherently
tactical, and the failure to object will rarely establish ineffective assistance
[of counsel].” (People v. Hillhouse (2002) 27 Cal.4th 469, 502; accord, People
v. Williams (2017) 7 Cal.App.5th 644, 686.) “[E]xcept in those rare instances
where there is no conceivable tactical purpose for counsel’s actions, claims of
ineffective assistance of counsel should be raised on habeas corpus, not on
direct appeal.” (People v. Lopez (2008) 42 Cal.4th 960, 972.) This is not one
of those rare instances. Rhine’s counsel may well have decided not to object
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because the prosecutor’s reference to the gang enhancement allegation was
fleeting, and an objection “would serve only to highlight the undesirable
testimony.” (People v. Catlin (2001) 26 Cal.4th 81, 165; accord, People v.
Bradford (1997) 14 Cal.4th 1005, 1052.) “There being a plausible reason why
counsel did not object, we cannot conclude on this record that counsel’s
inaction lacked a reasonable tactical basis.” (People v. Seumanu (2015)
61 Cal.4th 1293, 1313.)
Seventh, Rhine contends the trial court prejudicially erred by
restricting the use of prior convictions to impeach Holmes. Rhine moved in
limine to use seven convictions Holmes had suffered between August 2010
and February 2017. The convictions included three for unlawful possession of
a controlled substance (Health & Saf. Code, § 11377, subd. (a)), two for
reckless driving while attempting to evade a peace officer (Veh. Code,
§ 2800.2), one for false personation (§ 529), and one for escape from custody
(§ 4532, subd. (b)(1)). The court ruled Rhine could impeach Holmes with the
reckless driving and escape convictions, but not with the convictions for
unlawful possession of a controlled substance (because those were not for a
crime of moral turpitude) or for false personation (because it was remote in
time). In so ruling, the court did not err. Since “simple possession of [a
controlled substance] does not necessarily involve moral turpitude,” a witness
may not be impeached with a conviction for that crime. (People v. Castro
(1985) 38 Cal.3d 301, 317.) And, given the court’s ruling that Rhine could use
three other convictions to impeach Holmes, the court did not abuse its
discretion by prohibiting use of her 2010 false personation conviction as
remote in time. (See People v. Pitts (1990) 223 Cal.App.3d 1547, 1554-1555
[court acted within its discretion in excluding evidence of witness’s juvenile
adjudication for murder committed 11 years earlier].)
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Eighth, and finally, Rhine contends the trial court did not take
sufficient action to verify that juror No. 12 was awake and alert throughout
trial. The court noticed on two occasions during trial that the juror’s eyes
were closed and asked whether he was sleeping. The juror admitted his eyes
were closed, but said he was not asleep, was paying attention, and heard the
evidence presented. The court advised the juror to raise his hand if he felt
tired and wanted a break, and the juror agreed to do so. During the
conference on jury instructions, the prosecutor raised the issue of potential
removal of juror No. 12. Rhine’s counsel stated: “I have no concerns about
Juror No. 12 . . . . I believe he was cognizant and aware of the proceedings
and all the arguments being made and listening and making eye contact. So
I had no objection.” The court stated that after it had advised the juror to
request a break if he felt tired, the court saw the juror’s eyes were often
closed but were “open almost entirely during the course of the closing
arguments,” and the juror’s “almost immediate[ ]” response to the court’s
announcement of a recess indicated he was not sleeping. Having chosen not
to object to juror No. 12’s continued service, Rhine may not complain on
appeal that the trial court did not do enough to make sure the juror was not
sleeping through trial. (People v. Williams (2013) 58 Cal.4th 197, 289; People
v. Lewis (2009) 46 Cal.4th 1255, 1308.) In any event, the complaint lacks
merit. By questioning the juror about sleeping, advising him to request a
break if he felt tired, and observing him during trial, the court took
appropriate steps to make sure he was in fact awake and paying attention.
(People v. DeSantis (1992) 2 Cal.4th 1198, 1233-1234; People v. Winters (1966)
242 Cal.App.2d 711, 718.)
Having reviewed the record and considered the contentions Rhine
raised in his supplemental brief, we conclude he had a fair trial, the evidence
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supports the jury’s verdicts and findings, and the trial court imposed the
legally prescribed punishment. We have found no error that requires
reversal or modification of the judgment.
III.
DISPOSITION
The judgment is affirmed.
IRION, Acting P. J.
WE CONCUR:
DO, J.
CASTILLO, J.
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