IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
August 2, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JESSE JARON CORNISH, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F02962)
The opinion of the court was delivered by: Mauro , J.
P. v. Cornish CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
On the night of March 12, 2008, defendant Jesse Cornish shot Jabarie Mike in front of Mike's home and continued firing as Mike retreated into his residence. Defendant was convicted of attempted murder (Pen. Code, §§ 664/187, subd. (a)) and discharging a weapon at an inhabited dwelling (Pen. Code, § 246).*fn1 The jury also found that defendant personally used and discharged a firearm (§§ 12022, subd. (b)(1), 12022.53, subds. (b), (c) & (d)) and caused great bodily injury (§ 12022.7, subd. (a)). The trial court sentenced defendant to an aggregate term of 32 years to life in state prison.*fn2
On appeal, defendant contends we must reverse the judgment because he received ineffective assistance of counsel when his attorney (1) failed to object to testimony concerning defendant's silence; (2) failed to object to character evidence; (3) failed to object to the prosecutor's misleading statements concerning the order of deliberations; and (4) failed to call witnesses who would corroborate defendant's alibi. He also contends reversal is warranted due to the cumulative prejudicial effect of the alleged errors. None of defendant's contentions are persuasive. Accordingly, we will affirm the judgment.
Defendant shot Mike as the result of a verbal altercation between Mike and defendant's girlfriend, Arika Shaw. Mike worked with Shaw at an Applebee's restaurant in Elk Grove. On March 11, 2008, Mike complained to Shaw about a co-worker, Kjerstie Montgomery. When Shaw defended her, Mike stated she should not be so quick to do so because Montgomery was not a good friend to Shaw. In support of his claim, he related that Montgomery inappropriately had shared with him a confidence about Shaw's sex life. Shaw became angry with Mike and went outside. Defendant was in the parking lot waiting to pick up Shaw when her shift ended. Shaw told defendant about the altercation and then went back inside.
Mike left to run an errand. Defendant confronted him and asked if he had a problem with Shaw. Mike denied having a problem and cut off the conversation to go run his errand. Shaw finished her shift and left work with defendant. Thereafter, Mike telephoned her repeatedly and complained about defendant's conduct. Mike said he wanted to fight defendant and Shaw hung up on him. Mike called back again and defendant took the phone from Shaw and spoke with him. Mike yelled at defendant about the confrontation at work but defendant remained calm.
Thereafter, defendant decided he wanted to fight Mike, asked Shaw to show him where he lived, and she complied. When they arrived at Mike's house, defendant pulled out a gun, claiming it was only for self-defense if necessary. Defendant got out of the car but then changed his mind about fighting with Mike, telling Shaw he did not "want to do that in front of [her]."
The next night, Mike worked the night shift with Shaw and Montgomery, and the atmosphere was "flat." Montgomery told Mike her boyfriend had just been released from jail and Mike should not have "opened up [his] mouth." Mike also felt threatened by defendant's conduct the day before. Because he feared for his safety, Mike called his girlfriend's brother, Frederick Coner, to come to Applebee's and escort him home after work. Coner arrived and the two men drove to Mike's home in their respective cars after Mike's shift ended around 9:00 p.m.
Mike lived nearby in a house he shared with his girlfriend, her mother, and three other people. When Coner decided to leave he discovered his car would not start. Around 10:30 p.m., Mike was helping Coner jump his car battery when he noticed a small red car do a U-turn and stop across the street. Two men exited the car and approached Mike, who was still wearing his Applebee's uniform. One of the men, who Mike later identified as defendant, had a "mean mug" expression. Defendant walked toward Mike, raised his arm, and began firing the gun he was holding. Mike turned and ran towards the house, but was shot through the thigh before he reached safety. Defendant continued shooting at the house after Mike went inside.
Neighbors heard multiple gunshots about 10:30 p.m., witnessed a red car speeding away, and called 9-1-1 to report a shooting. When the police responded, they found Mike wounded and several slugs in the structure of the house.
Mike spoke briefly with the police before being transported to the hospital and spoke with them again at the hospital. He did not remember exactly what he said because he was in pain and in shock. Mike recalled telling a police officer that a light skinned black man shot him and he was accompanied by a Hispanic male. At that time he did not tell the police he thought the shooter was defendant. However, when a detective visited him at home midday the next day, Mike told the detective that he thought Shaw's boyfriend shot him and that if he saw him he could identify him. A few days after the shooting, Mike viewed a photographic lineup and selected defendant as his assailant. Mike could not identify the man who accompanied defendant, and Coner was unable to identify anyone from the lineup. At trial, Mike adamantly identified defendant as his assailant.
Detectives Sanchez and Bearor questioned defendant, who waived his Miranda rights. Defendant denied shooting Mike and claimed he did not know where he lived. Defendant stated that on the night of the shooting, he drove from his mother's house in Rancho Cordova to the Applebee's in Elk Grove to return Shaw's car around 7:00 p.m. Then he went to Fresno with his brothers, Meshach and Ammiel, and Ammiel's girlfriend in her car. According to defendant, a trip to Fresno takes about 90 minutes. When they reached Fresno, they ran a few errands for about 30 minutes before returning to his mother's house in Rancho Cordova. They arrived back about 10:00 or 10:30 p.m. Defendant called Shaw around 10:40 p.m. and asked her to pick him up after her shift ended. Defendant stated he had his cell phone with him during the trip.
Cell phone records and signals from nearby cell phone towers indicated that defendant did not go to Fresno. Rather, Shaw called defendant when Mike left the restaurant around 9:00 p.m., after which defendant's cell phone (and presumably defendant) traveled from Rancho Cordova to Elk Grove. Defendant was in the vicinity of Mike's house when Mike was shot. Defendant then traveled back to Rancho Cordova.
Defendant's mother, Priscilla Cornish, owns a red Hyundai and Mike's assailants were in a small red car. Cornish works at an assisted living facility in El Dorado Hills. Her work shift is four days, for 24 hours a day, beginning on Wednesday and ending on Sunday. Cornish testified that sometimes one of her 16 children would drive her to work in her car and then pick her up several days later when her shift ended. According to Cornish, she drove herself to work on Wednesday, March 12, 2008. According to Cornish's supervisor, however, the red car was not parked at the facility on Thursday morning and she did not see it until she arrived at work on Friday morning. Defendant's cell phone records indicate he went to El Dorado Hills on the evening of Thursday, March 13.
Shaw, who pleaded guilty to being an accessory after the fact, testified as a prosecution witness pursuant to the terms of her plea agreement. Shaw related her verbal altercation with Mike, admitted taking defendant to Mike's house the night before the shooting, and testified defendant had a gun. She stated that defendant came with her to work on March 12 and his brother followed in their mother's red Hyundai. Defendant wanted to confront Mike but Shaw told them, "This is my job. Take it somewhere." Defendant left with his brother, but subsequently contacted Shaw and asked her to let him know when Mike left the restaurant. Shaw did so and then became concerned when she heard sirens, saw "cop cars flying on the freeway," and she received a text telling her to erase all of her messages.
Shaw went to defendant's house in Rancho Cordova around 11:30 p.m., after her shift ended. She was waiting for defendant outside in her car when he suddenly appeared next to her car. They went inside, where around 10 people had gathered and were all "amped." Shaw and defendant left and went to her house. Shaw did not know that Mike had been shot and defendant did not mention it. The next day, Mike told her about the shooting and said he thought defendant was the assailant.
Defendant contends he received ineffective assistance of counsel. To succeed on such a claim, defendant must show that counsel's performance was both deficient and prejudicial in the sense that it "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Strickland v. Washington (1984) 466 U.S. 668, 686 [80 L.Ed.2d 674, 692-693; People v. Earp (1999) 20 Cal.4th 826, 870.) We may reject defendant's claim without deciding whether counsel's performance was deficient if defendant fails to show that the challenged actions by counsel affected the reliability of the trial process. (Strickland v. Washington, supra, 466 U.S. at p. 697 [80 L.Ed.2d at p. 699]; People v. Earp, supra, 20 Cal.4th at p. 870.)
First, defendant challenges defense counsel's failure to object to a portion of Detective Bearor's testimony. Detective Bearor testified that phone records showed that defendant's phone was within three to five miles of phone towers located within two miles of the shooting at the approximate time of the shooting. During his interview, defendant admitted having his phone with him on the night Mike was shot. The prosecutor asked Detective Bearor, who assisted Detective Sanchez in interviewing defendant, if defendant had "any sort of explanation for you when you showed [the cell phone data] to him?" Detective Bearor responded, "No, he refused to answer questions about his cellular telephone activity."
Defendant contends that a criminal defendant has a constitutional right to remain silent (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]); any comment on, or impeachment use of, defendant's silence after receiving Miranda warnings is improper (Doyle v. Ohio (1976) 426 U.S. 610, 617-620 [49 L.Ed.2d 91, 97-99] (Doyle)); and a defendant's waiver of Miranda rights can be withdrawn and reasserted during the course of an interrogation, which renders inadmissible any evidence of subsequent statements or silence. (Moran v. Burbine (1986) 475 U.S. 412, 420 [89 L.Ed.2d 410, 420]; U.S. v. Soliz (9th Cir. 1997) 129 F.3d 499, 503-504, overruled on another ground in U.S. v. Johnson (9th Cir. 2001) 256 F.3d 895, 913, fn. 4.) When defendant refused to answer questions about his cellular phone activity, he in effect withdrew his waiver of Miranda rights and any reference to his refusal to answer should have been excluded. Thus, according to defendant, trial counsel's performance was deficient because he failed to seek exclusion of the evidence.
Relying on People v. Hurd (1998) 62 Cal.App.4th 1084, the People respond that counsel's performance was not deficient because the evidence was admissible. In Hurd, the court held, "Once a defendant elects to speak after receiving a Miranda warning, his or her refusal to answer questions may be used for impeachment purposes absent any indication that such refusal is an invocation of Miranda rights. . . . [Defendant] was not induced by the Miranda warning to remain silent. . . . [¶] . . . We do not think Doyle was meant to preclude the prosecutor from commenting on highly relevant evidence bearing on [defendant's] credibility, including [defendant's] refusal to provide critical details, when he had voluntarily waived his right to remain silent." (Id. at pp. 1093-1094.)
Thus, according to the People, "California law makes clear the defendant does not have the right 'to remain silent selectively.'" (Citing People v. Hurd, supra, 62 Cal.App.4th at p. 1093.) However, the law is not as clear as the People suggest.
In People v. Coffman and Marlow (2004) 34 Cal.4th 1, the California Supreme Court observed that the holding in Hurd was inconsistent with numerous federal appellate court decisions. (Id. at pp. 118-119.) The Supreme Court found it unnecessary to address and resolve the conflict because even if Doyle error occurred, it was harmless beyond a reasonable doubt in view of the strength of the evidence and the "incident's relatively minor significance in the prosecution's case . . . ." (Id. at p. 119.)
We too need not address whether Doyle error occurred because even assuming it did, the error was harmless beyond a reasonable doubt, which means that defendant was not prejudiced by counsel's alleged deficient performance.
Three factors are considered in determining whether improper comment or testimony regarding a defendant's silence is harmless: "(1) the extent of the comments made; (2) whether an inference of guilt from silence was stressed to the jury, and (3) the extent of other evidence suggesting the defendant's guilt." (U.S. v. Baker (9th Cir. 1993) 999 F.2d 412, 416; accord, U.S. v. Pino-Noriega (9th Cir. 1999) 189 F.3d 1089, 1097-1098.)
Here, Detective Bearor's comment was very brief and was not referenced by the prosecutor in her argument to the jury. Moreover, the evidence of defendant's guilt was overwhelming. Defendant confronted Mike the day before the shooting because Mike had upset Shaw. Later that night, defendant had Shaw show him where Mike lived because he wanted to fight him. When they arrived, defendant pulled out a gun but then decided not to do battle in front of Shaw. The next day defendant went to Applebee's to confront Mike again, but was dissuaded from doing so by Shaw because she did not want any trouble at work. Defendant asked Shaw to notify him when Mike left work, and she complied. Defendant left in his mother's red car, which car was later witnessed fleeing the shooting a few hours later. Mike positively identified defendant as the man who approached him, pulled out a gun, and shot him. Cell phone records indicate that defendant was in the vicinity of Mike's home at the time of the shooting. Cell phone records also indicate that defendant traveled to El Dorado Hills the next evening, presumably to leave his mother's car at her place of employment since her supervisor did not see the car there until after defendant's trip to El Dorado Hills. Defendant attempted to provide an alibi by suggesting that he traveled to Fresno, but cell phone records indicated he was in Elk Grove at the time of the shooting.
The aforementioned evidence demonstrates not only that defendant had motive, means and opportunity to commit the shooting, but also that he actually committed the shooting. He could not have been prejudiced by Detective Bearor's brief reference to his silence. Under the circumstances, defendant's first claim of ineffective assistance of counsel is unavailing.
During Shaw's testimony, defense counsel attempted to establish that Montgomery was angry with Mike and perhaps might have had her boyfriend assault him. Mike testified that Montgomery told him that her boyfriend had just been released from jail and Mike should not have "opened up [his] mouth." Shaw verified that Montgomery was mad at Mike and that Montgomery had her boyfriend Dennis come into Applebee's to scare Mike, although Shaw did not think Mike ever saw or talked to Dennis. According to Shaw, Montgomery liked to hang out with "thuggish" guys and Dennis was "rough." Dennis, whose nickname was Menace, had been to prison and was a member of the 24th Street Crips. In contrast, Shaw had never seen defendant get into a fight.
On redirect, the prosecutor questioned Shaw about her testimony that Montgomery liked to hang out with bad boys and asked if in March 2008, Shaw also liked to hang out with bad boys. Shaw replied, "A little bit. Not downright cold bad like her, but a little bit."
Defendant argues he received ineffective assistance of counsel because his trial attorney failed to object to this impermissible character evidence, which implied that defendant was a bad boy. We disagree.
"[T]he decision to object or not object to the admission of evidence is inherently tactical, and a failure to object will seldom establish ineffective assistance." (People v. Beasley (2003) 105 Cal.App.4th 1078, 1092.) "Moreover, when 'the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation."' [Citations.]" (People v. Earp, supra, 20 Cal.4th at p. 871.)
Defense counsel may have opted not to object because Shaw's response that she liked boys who were "a little bit" bad was not sufficiently prejudicial given that she simultaneously stated she did not like them "downright cold bad" like Montgomery's boyfriend Dennis. Her answer supported defense counsel's closing argument suggesting that Montgomery's gang member boyfriend Dennis could have been Mike's assailant. Furthermore, in light of the aforementioned overwhelming evidence against defendant, it is not reasonably probable that Shaw's brief statement implying that defendant was a bit of a bad boy influenced the jury's verdict.
In addition to instructing the jury on attempted murder in count one, the court also instructed the jury on the lesser included offenses of attempted voluntary manslaughter (§§ 664/192, subd. (a)) and assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(2)). As for the count two charge of shooting at an inhabited dwelling, the court instructed the jury on the lesser included offense of shooting a firearm in a grossly negligent manner (§ 246.3).
Defendant challenges trial counsel's failure to object when the prosecutor argued to the jury that it could not "even begin to consider" the lesser included offenses until they found defendant not guilty of the greater charges.
The California Supreme Court has condemned the practice of directing the jury it must reach a verdict on a greater offense before considering any lesser included offenses. (People v. Berryman (1993) 6 Cal.4th 1048, 1073, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; People v. Kurtzman (1988) 46 Cal.3d 322, 324-325 (Kurtzman).) In Kurtzman, the court stated that jury instructions should not even "suggest that a not guilty verdict must actually be returned before jurors can consider remaining offenses." (Kurtzman, supra, at p. 336.) Thus, the prosecutor's argument was legally incorrect.
Defendant argues he was prejudiced by trial counsel's failure to object to this misstatement of the law. The evidence disclosed that defendant fired multiple shots at close range, yet only one shot struck Mike's leg. In his view, this supports an inference that he did not intend to kill Mike, which is a required element of attempted murder. Thus, absent the prosecutor's misdirection, the jury might have determined he only intended to frighten Mike and found him guilty of assault with a deadly weapon. This result is not reasonably probable. (Kurtzman, supra, 46 Cal.3d at p. 335 [applying the standard of prejudice in People v. Watson (1956) 46 Cal.2d 818, 836].) Based on all the evidence, the more likely explanation for Mike's limited injury is that it is difficult to hit a moving target.
With respect to the offense of shooting at an inhabited dwelling, defendant posits the jury may have found that he was not shooting "at" the house and that his only crime was shooting a firearm in a grossly negligent manner. (People v. Ramirez (2009) 45 Cal.4th 980, 985.) But defendant fails to explain how this result is reasonably probable given that he continued firing at defendant as he ran into the house, which means that the inhabited dwelling was within defendant's firing range. (Id. at p. 990.)
In any event, the court properly instructed the jury with CALCRIM No. 3517, which provides: "It is up to you to decide the order in which you consider each crime and the relevant evidence, but I can accept a verdict of guilty of a lesser crime only if you have found the defendant not guilty of the corresponding greater crime." (Italics added.) The court also advised the jury: "You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions." (CALCRIM No. 200.) We must presume the jury followed the court's instructions. (See People v. Boyette (2002) 29 Cal.4th 381, 436 [no prejudicial misconduct where prosecutor arguably misstated the law because "the trial court properly instructed the jury on the law, and we presume the jury followed those instructions"]; People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8 [jury is presumed to have treated "the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade"].)
Defendant fails to establish that trial counsel's performance was prejudicially deficient based on his failure to object.
Defendant also maintains he received ineffective assistance of counsel because his attorney did not call potential witnesses who could corroborate defendant's alibi that he was in Fresno when the shooting occurred.
Following the guilty verdict, defendant moved for a new trial on this ground, asserting that his brother Meshach, sister Tabitha, and his brother Ammiel's girlfriend Marsha all could corroborate his alibi, and counsel's performance was deficient because he failed to pursue the matter. But in support of the motion for new trial, those individuals contradicted the statements defendant made during his interview. Defendant told Detectives Sanchez and Bearor that he, Meshach, Ammiel, and Marsha left Elk Grove at 7:00 p.m. and drove to Fresno. Defendant, who had his phone with him during the trip, arrived back in Rancho Cordova around 10:30 p.m. In contrast, Meshach, Marsha and Tabitha stated that defendant did not have his cell phone with him, and that they arrived back later than defendant had said and later than the time Shaw testified she picked up defendant at his mother's house.
Defense counsel testified he opted not to pursue an alibi defense at trial because it was physically impossible for defendant to have traveled to Fresno and back in three hours as he claimed. Counsel asked defendant and his family repeatedly if anyone had any helpful information or would be willing to testify for the defense and no one cooperated. Defendant's sister testified she approached counsel on the third or fourth day of trial about having seen defendant in Fresno. By that time, counsel had chosen to argue misidentification as a defense.
The trial court denied the motion for new trial, ruling that counsel's performance did not result in the withdrawal of a meritorious defense and that he did not fail to act in a manner to be expected of a reasonably diligent advocate. Nothing in the witnesses' statements presented in the motion for new trial would have been helpful to defendant at trial, as their statements were inconsistent with his own recorded statement. The jury was aware of defendant's statement, which was stronger without the conflicts inherent in the statements from Meshach, Tabitha and Marsha. Furthermore, the evidence of defendant's guilt was overwhelming. We agree with the trial court that counsel was not deficient.
Defendant argues the judgment must be reversed based on the cumulative effect of the foregoing alleged errors. But no "serious errors occurred that, whether viewed individually or in combination, could possibly have affected the jury's verdict." (People v. Martinez (2003) 31 Cal.4th 673, 704; People v. Valdez (2004) 32 Cal.4th 73, 128.)
We have, however, found an error in the abstract of judgment which requires correction. The abstract reflects that defendant's determinate term for the section 246 offense is concurrent to his indeterminate life term for attempted murder, but omits the fact that the concurrent term is for five years. We will direct the trial court to make the requisite correction.
The judgment is affirmed. The trial court is directed to correct the abstract of judgment to reflect a five-year concurrent term for the section 246 offense and to forward a
certified copy of the corrected abstract to the Department of Corrections and Rehabilitation.
BLEASE , Acting P. J.
BUTZ , J.