(Super. Ct. No. SF111853A)
The opinion of the court was delivered by: Duarte , J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury acquitted defendant Angelo Miguel Melendez, Jr., of several counts of attempted murder, assault with a firearm, and shooting from a vehicle, but found him guilty of making criminal threats (Pen. Code,*fn1 § 42 12022, subd. ( 12316, subd. ( , prohibited possession of a firearm by a felon (§ (1)), and prohibited possession of ammunition (§ (1)). Defendant appeals, contending (1) trial counsel was ineffective in failing to request a jury instruction on voluntary intoxication for the criminal threats charge; (2) the prosecutor committed prejudicial misconduct; and (3) a prior prison term enhancement (§ 667.5) should be stricken as duplicative. We shall strike the enhancement but shall otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution charged defendant with 10 offenses allegedly occurring on May 16, 2009: (1) attempted murder of police officer Emiliano Rincon (§§ 664, 187); (2) attempted murder of Sylvia Gaines (§§ 664, 187); (3) shooting a firearm at an occupied motor vehicle (§ 246); (4) shooting a firearm from a vehicle at Officer Rincon (§ 12034, subd. (c)); (5) shooting a firearm from a vehicle at Sylvia Gaines (§ 12034, subd. (c)); (6) assault with a firearm on Sylvia Gaines (§ 245, subd. (a)(2)); (7) assault with a semiautomatic firearm on Officer Rincon (§ 245, subd. (d)(2)); (8) criminal threats against Sylvia Gaines (§ 422); (9) felon in possession of a firearm (§ 12021, subd. (a)(1)); and (10) felon in possession of ammunition (§ 12316, subd. (b)(1)). Sentencing enhancement allegations included personal use of a firearm (§ 12022.5, subd. (a)), two prior serious felony convictions--an assault with a firearm from 1999 and domestic violence from 2008 (§§ 667, subds. (a), (d), 1170.12, subd. (b))--and a prior prison term for the 1999 assault (§ 667.5, subd. (a)).
The trial court granted defendant's motion for judgment of acquittal after trial on count 4. (§ 1118.1.)
The evidence adduced at trial included the following:
The incidents that resulted in the charges occurred around 1:30 a.m. on May 16, 2009. Before that, defendant spent several hours with his cousin, Regence Gaines.*fn2 They drove around, made three stops at liquor stores, picked up defendant's girlfriend around midnight, and around 1:30 a.m. stopped to greet another cousin, Howard Gaines aka Ray Ray. Regence testified defendant drank "a couple" of 24-ounce cans of malt liquor and snorted an unspecified amount of cocaine during the several-hour time period.
Regence testified defendant and Howard started to argue. Defendant pulled a sawed-off .22 caliber rifle from the front passenger side of Regence's car and walked back to Howard. From what he could see in the dark, it appeared to Regence that defendant held the rifle in his right hand at his side.
Howard's mother, Sylvia Gaines, lived nearby. She testified she heard gunshots outside and heard someone ask, "you trying to shoot me in my back?" She looked outside and saw more than 10 people in a "bunch." She went outside, where she saw her son Howard*fn3 and defendant (Sylvia's ex-husband's nephew) arguing "neck to neck" and "going around in circles." She stepped between them. She saw that defendant was holding a gun about two feet long, pointed toward the ground. When asked if defendant said anything to her, Sylvia testified, "Words w[ere] going back and forth, and then he said, 'I don't give a fuck about being kin.'" When asked if defendant was talking to her or Howard, Sylvia testified, "I have no idea. We both w[ere] standing there."
Sylvia testified that Howard started to respond, but she grabbed him, covered his mouth, and whispered in his ear to be quiet because, "He [defendant] looks like he's high." Defense counsel objected, and the trial court overruled the objection but immediately instructed the jury, "The jury will consider that, if at all, for a limited purpose, and that is to explain the witness's actions, not for the truth of the notion that somehow the defendant was high."
When asked on cross-examination if she ever saw defendant high before, Sylvia said, "I seen [sic] Miguel [defendant]--like right now, Miguel is fine. He looks like Miguel. That night Miguel's eyes were like beamin.'" Sylvia explained by "beamin'" she meant his eyes were "just big"--"his eyes and pupils like he's on something." Sylvia has previously seen people high.
Sylvia testified that, after she told Howard to be quiet, "some people were pulling me. I don't know who they were, but they were pulling me and I turned around and he [defendant] had the gun up pointing." The gun was pointing at Sylvia and Howard. Sylvia said she would call 911. Someone called for defendant to get in the car. Defendant said "I'll be back," and then he got in the car and left. A police officer testified that Sylvia reported defendant had said he would come back and "kill all you motherfuckers"; Sylvia denied having reported that specific phrase; she did, however, testify that defendant had said he would be back and was "cussing." Sylvia testified she was shocked and "a little scared" that defendant pointed the gun in her direction. She still considered him her nephew despite her divorce from his uncle.
After defendant got into the car, Sylvia heard gunshots but did not know where they came from. They seemed to come "from all over." She called 911. Police Officer Emiliano Rincon responded in a patrol car. Rincon testified that, as he sat in his car speaking to Sylvia through the window, a black Mercedes drove by, and Rincon heard several gunshots that appeared to come from that car. The Mercedes drove away, hit a truck, and stalled. After the car stalled, defendant fled on foot.
Regence testified he was originally charged as a co-defendant in this case, but he reached an agreement with the prosecution to testify truthfully against defendant in exchange for a stipulated state prison term of 16 months on a charge of letting someone discharge a gun from his car, as opposed to a potential life sentence on the original charges.
Defendant's fingerprints were found on the Mercedes.
The defense did not call any witnesses.
The jury found defendant guilty on counts 8, 9, and 10 (criminal threats and felon in possession of a gun and ammunition). The jury found defendant not guilty on the remaining counts.
In a bifurcated bench trial, the trial court found true the allegations of two prior serious felony convictions and one prior prison term.
The trial court sentenced defendant, under the three strikes law (§ 667, subds. (b)-(i)), to a term of 25 years to life on count 8 (criminal threats), concurrent terms of 25 years to life on counts 9 and 10 (felon in possession of gun and ammunition), plus consecutive terms of four years for use of a firearm (§ 12022.5), five years for each of the two prior serious felony convictions (§ 667, subd. (a)), and three years for the prior prison term (§ 667.5). The total sentence was 42 years to life.*fn4
Ineffective Assistance Of Counsel
Defendant contends his trial counsel was ineffective in failing to request a jury instruction that presented the jury with the option of finding that voluntary intoxication prevented defendant from having the specific intent to threaten under section 422.*fn5 We disagree.
Defendant acknowledges the trial court did not have any sua sponte duty to instruct on voluntary intoxication. (People v. Saille (1991) 54 Cal.3d 1103, 1120; accord, People v. San Nicolas (2004) 34 Cal.4th 614, 669.) Even if the defendant requests the instruction, the trial court is not required to give it unless there is substantial evidence that (1) defendant was intoxicated, and (2) that the intoxication affected his actual formation of specific intent. (People v. Williams (1997) 16 Cal.4th 635, 677; see also, § 22 [evidence of intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, not to negate capacity to form intent].)
Defendant bears the burden to show ineffective assistance of counsel. (People v. Gray (2005) 37 Cal.4th 168, 207 (Gray).) To succeed, defendant must show trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 678-679] (Strickland); Gray, supra, 37 Cal.4th at pp. 206-207.) Defendant must then show a reasonable probability he would have received a more favorable result but for counsel's deficiency. (Strickland, supra, 466 U.S. at p. 687 [80 L.Ed.2d at p. 678]; Gray, supra, at p. 207.)
Here, defendant cannot show counsel performed deficiently, much less show prejudice. Although there was evidence that defendant had consumed 48 ounces of beer and an undisclosed amount of cocaine in the four or five hours before the incident, there was no evidence that the intoxicants affected his actual formation of specific intent. Defendant did not testify. Sylvia testified that defendant might be "high," but also that she believed defendant meant his words as a threat--a belief that was evidenced by her warning to Howard and her calling 911. Being "high" and forming specific intent to commit a crime are not mutually exclusive. (See People v. Williams, supra, 16 Cal.4th at p. 677 [evidence that defendant was "probably spaced out" and "doped up" did not constitute evidence that intoxication had any effect on the defendant's formation of intent].)
Defendant argues that, by the time Regence and defendant picked up defendant's girlfriend around midnight, the condition of both defendant and Regence had "deteriorated to the point that she immediately took over the driving." However, defendant cites no evidence that the girlfriend had to take over the driving due to the inebriated state of the driver (Regence) or defendant. Regence testified he has a "high tolerance" for beer, he "tried" the cocaine, and he "let her [the girlfriend] drive." The jury heard no evidence signaling defendant was incapable of driving.
Defendant compares this case to People v. Hughes (2002) 27 Cal.4th 287, where the defendant had alcohol on his breath, "glassy eyes," slightly slurred speech, seemed unsteady but was able to stand, and seemed intoxicated but not drunk. (Id. at p. 317.) In that case, however, the issue before the Supreme Court was whether a different instruction eviscerated the voluntary intoxication instruction also given by the trial court. (Id. at pp. 340-341.) The Supreme Court concluded it did not. (Ibid.) Thus, Hughes did not discuss or resolve the question whether there was substantial evidence to support a voluntary intoxication instruction. Cases are not authority for propositions not decided therein. (People v. Scheid (1997) 16 Cal.4th 1, 17.)
Since there was no evidence that the intoxicants affected defendant's actual formation of specific intent, trial counsel was not deficient for failing to request a voluntary intoxication instruction. (People v. Williams, supra, 16 Cal.4th at p. 677.)
Even assuming the evidence supported a voluntary intoxication instruction, defendant fails to meet his burden to show that there could be no satisfactory tactical explanation for counsel's choice not to request the instruction. (Strickland, supra, 466 U.S. at p. 689 [80 L.Ed.2d at p. 681]; Gray, supra, 37 Cal.4th at p. 207 [reviewing court gives deference to trial counsel's tactical choices and will not find ineffective assistance where the record is devoid of counsel's reasoning unless there can be no satisfactory explanation for counsel's choice].) The defense theory, as argued to the jury, was (1) the only witnesses placing defendant at the scene--Regence and Sylvia--were not credible witnesses, and (2) the words "I don't give a fuck if you're kin" did not constitute a threat. Trial counsel may have felt that an intoxication defense would have muddied the waters by appearing inconsistent with this theory--not an unreasonable interpretation. Counsel may also have believed that the argument against intent in effect conceded that the threat was made to Sylvia as charged--a logical belief. That trial counsel made a tactical choice is supported by counsel's initial objection to Sylvia's testimony that defendant looked high; clearly counsel felt the evidence of intoxication was more prejudicial than probative, given that it was clear from Sylvia's reaction to defendant that she believed he specifically intended to not only threaten her and Howard, but also to kill one or both of them.
Defendant argues the defense theory that the words did not constitute a threat runs counter to case law that language must be evaluated in the context of the surrounding circumstances--in this case the gun in defendant's hand. However, the defense theory was that the only two witnesses who claimed defendant held a gun lacked credibility. The theory and argument were consistent with ...