IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
December 1, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
LESTER CHARLES RUSSELL, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F4525)
The opinion of the court was delivered by: Robie , J.
P. v. Russell
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After exchanging gang insults, defendant Lester Charles Russell repeatedly shot Jashon Warren. Following a trial where the issue was identity of the shooter, a jury found Russell guilty of attempted murder and assault with a firearm, both committed for the benefit of a criminal street gang.
Defendant appeals, contending: (1) there was insufficient evidence he was the shooter; (2) there was insufficient evidence he acted for the benefit of a gang; (3) his trial counsel was ineffective; and (4) the trial court erred in not instructing on attempted manslaughter. Finding no merit in these contentions, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In the afternoon of July 21, 2008, Warren was dressed in red, walking back to his apartment complex. A blue car pulled up to him. The driver said, "[W]hat's up, Slob?" Slob is a derogatory term for Bloods, the gang to which Warren belonged. Warren responded, "[F]uck you, Crab." Crab is a derogatory term for Crips, the gang to which defendant belonged. The neighborhood was Blood turf and that gang's color is red. The Crips color is blue.
For "protection," Warren threw a rock at the driver. The driver shot Warren in the stomach. Warren "took off running." The driver got out of the car and shot Warren nine more times. One of those shots hit Warren in the kneecap, causing him to fall down. Warren "played dead," and the driver said, "[T]hat's what you get, you Slob," and drove off.
Police responded to the shooting and interviewed a witness, Suzan Broda. Broda heard a series of gunshots and saw a man standing near a car with a gun as another man collapsed on her front lawn. At trial, Broda described the shooter as an African-American man between 21 and 25 years old who was a little bit taller than six feet, "relatively thin," with dreadlocks. She believed defendant resembled the shooter, but she "c[ould] not positively ID him."*fn1
When police interviewed Warren at the hospital, Warren said the shooter was a black man named Tre*fn2 who was approximately 18 years old, six feet one inch tall and weighed 225 pounds. In a later interview, Warren told police he knew who had shot him but did not want to be labeled a "snitch." Tre was a former school friend of Warren's, but the two now belonged to rival gangs. Police showed Warren a photographic lineup, and without hesitation, Warren identified defendant as the shooter. At trial, Warren initially claimed he did not know defendant and did not know anybody named Tre. Later, he admitted Tre matched defendant's description and that Tre was the one who shot him. Warren feared that if he implicated defendant at trial, he might be labeled a "snitch" and that would jeopardize his family's safety.
At trial, the People called Police Detective Nick Goncalves as their gang expert. Goncalves testified the shooting was gang related and that it benefited the Crips.
Defendant did not present any witnesses at trial. His counsel argued in closing defendant was not the shooter.
There Was Sufficient Evidence Defendant Was The Shooter
Defendant contends there was insufficient evidence he was the shooter because the eyewitness testimony implicating him was "unreliable" and "flimsy at best."
The problem with defendant's argument is it casts the evidence in the light most favorable to him and ignores critical evidence, which is not the proper way to show insufficient evidence on appeal. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1574.) "[T]he defendant must set forth in his opening brief all of the material evidence on the disputed elements of the crime in the light most favorable to the People, and then must persuade us that evidence cannot reasonably support the jury's verdict. [Citation.] If the defendant fails to present us with all the relevant evidence, or fails to present that evidence in the light most favorable to the People, then he cannot carry his burden of showing the evidence was insufficient because support for the jury's verdict may lie in the evidence he ignores." (Ibid.)
Defendant has fallen into this trap. Defendant selectively notes that in court Broda could neither identify defendant as the shooter nor pick him out of a lineup, and Warren could not "conclusively and with certainty identif[y]" defendant as the shooter. In making this argument, defendant ignores that Warren told the police detective Tre had shot him and picked defendant out of a photographic lineup without hesitation when the detective asked him to identify the shooter. Defendant ignores that Warren feared that if he implicated defendant at trial, he might be labeled a "snitch," jeopardizing his family's safety. And defendant ignores that Broda's description of the shooter at trial resembled defendant's physical appearance.
This evidence was sufficient to prove defendant was the shooter.
There Was Sufficient Evidence Defendant
Acted For The Benefit Of A Gang
Defendant contends there was insufficient evidence of one element of the gang enhancement, namely, he intended to assist, further, or promote criminal conduct by gang members. His argument is the People relied on the gang expert's testimony to prove this element, and that testimony was "improper" because it contained the expert's opinion on defendant's intent. Defendant is wrong both that the gang expert's testimony encompassed an opinion on defendant's specific intent and that the gang expert's testimony was the evidence of defendant's intent.
The part of the gang expert's testimony defendant claims contained the improper opinion on defendant's intent was the following:
"[PROSECUTOR:] Detective Goncalve[s], I want to take you back again now to the facts of this offense. [¶] Okay?
"[PROSECUTOR:] You indicated that you reviewed the reports generated as a result of this shooting.
"[DETECTIVE:] I did.
"[PROSECUTOR:] Okay. So you reviewed the interviews of the victim, Jashon Warren.
"[DETECTIVE:] I did.
"[PROSECUTOR:] Okay. And you're familiar with the one witness statement in regards to the shooting and the fact that the defendant made a statement, as well?
"[PROSECUTOR:] Okay. Based on your review of this offense, the report and the investigation that you've conducted since then, do you have an opinion as to whether or not this offense was gang-related?
"[DETECTIVE:] I do.
"[PROSECUTOR:] Okay. What is that opinion?
"[DETECTIVE:] That it was gang-related.
"[PROSECUTOR:] Do you have an opinion as to whether or not the shooting in this case -- the shooting in this case benefited the CRIPS Criminal Street Gang?
"[PROSECUTOR:] What is that opinion?
"[DETECTIVE:] The game isn't just the other cases."
Nothing in this exchange touched on defendant's intent. Rather, the gang expert simply stated his opinion the offense was gang related and benefited the Crips. The case defendant relies on to show it does proves nothing of the sort. That case, People v. Killebrew (2002) 103 Cal.App.4th 644, 658, held that a gang expert may not offer an opinion on the subjective knowledge and intent of a particular defendant on trial. The gang expert here did not do that.
There was, however, evidence of defendant's intent. Specifically, Warren was a Blood in Blood territory and was wearing the Bloods' color red on the day defendant shot him. Defendant was a member of the rival gang, the Crips, was driving a blue car (which is the color of the Crips), and called Warren a "Slob" (which is a derogatory term for a Blood) before he shot him. After defendant shot Warren, defendant said, "[T]hat's what you get, you Slob." Defendant's display of gang color during the shooting in a rival gang's territory and defendant's use of gang terms before and after the shooting were evidence he intended to assist, further, or promote criminal conduct by gang members.
Trial Counsel Was Not Ineffective
Defendant contends his counsel was ineffective because she failed to: (1) object to the gang expert's testimony; (2) object to the People's attempts to have Broda identify defendant as the shooter; (3) object to Warren changing his testimony during trial; (4) introduce alibi evidence; and (5) request an instruction on attempted voluntary manslaughter. We take each allegation of ineffective assistance in turn, rejecting them all because counsel's performance was not deficient, which is the first prong of an ineffective assistance of counsel inquiry. (People v. Waidla (2000) 22 Cal.4th 690, 718.)
The Gang Expert's Testimony
Defendant contends the gang expert's testimony was objectionable because it "embraced ultimate issues of fact for the jury to decide" and contained unsupported testimony that Warren's "gang attire" was part of the reason defendant shot him.
The factual predicates of both of these arguments are wrong. One, the testimony did not encompass ultimate issues of facts. Those issues were whether defendant committed the shooting for the benefit of the Crips and whether defendant intended to assist, further, or promote criminal conduct by gang members. As we have explained in part II of the Discussion, the gang expert did not give his opinion on these matters. Two, there was evidence Warren was dressed in "gang attire." Warren testified he was "wearing a lot of red," which meant he was "representing" his gang, the Bloods, in the neighborhood. This was part of the reason the gang expert was of the opinion the shooting here was gang related. On this record, trial counsel had no basis for objecting.
The People's Attempts To Have Broda
Identify Defendant As The Shooter
Defendant contends his counsel was ineffective for not objecting when the People asked Broda to look at a photographic lineup in court after she failed to identify defendant before trial and then "ordered [defendant] to stand in front of Ms. Broda and turn to the side to give her another look at him . . . ."
Defendant does not carry his burden to show trial counsel was deficient because he does not cite any legal basis for an objection. Failure to object where there is "no sound legal basis" does not establish ineffective assistance of counsel. (People v. Cudjo (1993) 6 Cal.4th 585, 616.) Simply because Broda could not identify defendant before trial as the shooter, the People were not prevented from trying to have her identify him as the shooter at trial.
Warren's Changing Testimony During Trial
Noting Warren's changing testimony during trial, defendant argues his counsel was ineffective for not objecting or not discrediting Warren during cross-examination. Again, defendant does not carry his burden to show trial counsel was deficient because he does not cite any legal basis for an objection. Furthermore, counsel did attempt to discredit Warren during cross-examination. For example, trial counsel noted when questioning Warren it was unclear whether Warren even knew defendant, and counsel was able to get Warren to admit he saw only a "glimpse" of the shooter and was unable to identify the shooter at the time Warren was shot.
Defendant contends his trial counsel was ineffective for failing to introduce evidence he was in Las Vegas at the time of the shooting. The evidence was presented in a new trial motion filed after defendant dismissed his court-appointed trial counsel and retained private counsel. The evidence included a declaration signed April 15, 2010, from defendant's sister Gabrielle Gordon that, "to the best of [her] knowledge, [defendant] was in the state of Nevada during [July 2008]." It also included an email receipt from a Greyhound ticket center showing that on July 20, 2008, Gordon purchased a ticket for defendant to travel by bus from Las Vegas to Sacramento on July 23, 2008.
Trial counsel's decision not to introduce this alibi evidence was a "reasonable tactical decision," to which we defer. (People v. Lucas (1995) 12 Cal.4th 415, 436.)
As counsel explained at the hearing on the new trial motion, she did not call Gordon as a witness because she feared "it would just end up backfiring on us." As to the sister, trial counsel's investigator spoke with Gordon, who gave "vague" statements and sounded unconvincing. For example, she could not recall the exact dates defendant was with her in Las Vegas and she could not recall whether "someone gave him a ride to the bus station when he left." As to the email receipt from Greyhound, counsel did not try to introduce it because it was not "compelling evidence" and there might have been problems laying a foundation for its admission. Trial counsel had called Greyhound to verify the existence of this ticket, but the company did not have a record of it. The company also stated it does not verify who boards the bus.
Given the equivocal state of this evidence, trial counsel reasonably had misgivings about introducing it.*fn3
Attempted Manslaughter Instruction
Defendant contends his trial counsel was ineffective for failing to request an instruction on attempted voluntary manslaughter. When discussing the jury instructions, trial counsel explained she was not asking for an instruction for attempted voluntary manslaughter both "for tactical reasons" "since the theory of the case is that the defendant was not the shooter, period" and the lack of evidence there were any "lesser includeds."
This was a reasonable tactical decision. In addition to undercutting the defense theory defendant was not the shooter, an instruction on attempted voluntary manslaughter was not required by law. When a defendant completely denies participating in the crime, there is no error in failing to instruct on a lesser included offense. (See, e.g., People v. Medina (1978) 78 Cal.App.3d 1000, 1005-1006 [no duty to instruct on voluntary manslaughter based on diminished capacity when defendant testified he was not present when victim was shot].) For this reason also, we reject defendant's last argument, which was the court erred in not instructing the jury on "manslaughter offenses."
The judgment is affirmed.
We concur: BLEASE , Acting P. J. MURRAY , J.