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People v. Chestra

California Court of Appeals, Second District, Fifth Division

March 17, 2017

THE PEOPLE, Plaintiff and Respondent,
DAVID WARREN CHESTRA, Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles County No. BA402910, Lisa B. Lench, Judge. Affirmed as modified with directions.

          Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.

          TURNER, P.J.


         A jury convicted defendant, David Warren Chestra, of first degree murder in violation of Penal Code section 187, subdivision (a).[1] The jury further found defendant personally and intentionally discharged a firearm causing death. (§ 12022.53, subd. (d).) Defendant admitted four prior conviction allegations within the meaning of sections 667, subdivision (d) and 1170.12, subdivision (b) were true. Defendant was sentenced to 100 years to life in state prison. We modify the oral pronouncement of judgment to include a $300 parole revocation restitution fine. (§ 1202.45.) In the published portion of this opinion, we discuss why any error in failing to instruct on voluntary manslaughter was harmless. We affirm the judgment in all other respects.


         Defendant was a self-described former gang member. Defendant testified that as a gang dropout, he was at risk of being killed. Viewed in the light most favorable to the verdict (see People v. Hubbard (2016) 63 Cal.4th 378, 392; People v. Iniguez (1994) 7 Cal.4th 847, 854), the evidence established the following. On July 5, 2012, defendant shot and killed a former friend and fellow gang member, Gary Burks. Defendant was accompanied by his girlfriend, Brandy Ricks. Defendant kicked in Mr. Burks's apartment door. Mr. Burks, armed with a pair of scissors, attempted to block the door. Defendant reached around the door and fired his weapon several times striking Mr. Burks in the head.

         The morning after the murder, defendant was arrested on a parole violation. Defendant subsequently entered a guilty plea to owning or possessing the firearm within the meaning of Penal Code section 29900. Both the gun, a.44-caliber revolver, and the unique ammunition used to commit the murder were found in a car owned by Ms. Ricks, but used by both defendant and Ms. Ricks. The car key was in defendant's pocket. The gun was hidden in the engine compartment. Six rounds were missing from the box of ammunition. Defendant and Ms. Ricks had purchased the ammunition several days prior to the murder. This transaction was captured on surveillance videotape.

         Defendant was subsequently questioned by detectives and confessed to the crime. He described in detail the location, the physical surroundings and the manner in which he killed the victim. Defendant's description was consistent with the evidence at the murder scene. As to the reason for the killing, defendant described himself as a gang “dropout.” Defendant explained, “[The victim] was talking shit, so I, myself, took his punkass life.” Defendant said, “I was gonna kill all my homies.” At another point, defendant explained: “[The victim] didn't think I was coming, but I came. I got him.... This is my own gang shit. I'm a drop out from my hood” Defendant also said Mr. Burks may have raped Ms. Ricks. Defendant told detectives: “I found out [Ms. Ricks and Mr. Burks] were doing some shit together, that he raped her. She, she told me. I don't even think it was a rape. She was asleep. So I just took that on, on account of myself and shit.”

         After confessing, defendant also wrote a letter to his wife, a member of defendant's former gang who had opposed his decision to leave the gang. Defendant said: “Your punk ass got Big Crow murdered by me! [The word “me” is underlined twice.]... [L]ucky I got caught cuz all them fools were next.... Flaco's punk ass got lucky, but both them niggas felt my wrath who put hands on P.NuT, [a gang member who had died]... I tried to change but the hood wouldn't stop. So I ended the nigga[']s life. That simple. Don't worry I already confessed....”

         While in custody prior to trial, defendant also told deputies: “I'm gonna fucking kill a fucking cop or a fucking nurse.... That's fucking for real. I'm a... I'll be calm for a month. Two months, I'll wait. Three months, I'll wait. Killed my homeboy. I waited six months. Fucking talking about? Shot that fool in the head with a four-four. Kicked down the door. Right in the middle of his brain. Shit came out the shit. Think I won't kill a motherfucking cop over this. Killed my homeboy.” (As noted above, the murder weapon was a.44-caliber revolver.)

         At trial, however, defendant denied shooting Mr. Burks. Defendant testified it was Ms. Ricks who shot and killed Mr. Burks. Defendant said he had gone to Mr. Burks's apartment with Ms. Ricks to acquire cocaine. Mr. Burks was a member of defendant's former gang. When Mr. Burks saw defendant in the hallway, he said, “What's up, meaning “Fuck you.” Mr. Burks retreated into the apartment, returned with a pair of scissors in his hand, and tried to stab defendant. (Homicide investigators found Mr. Burks gripping the scissors in his hand.) A physical altercation between the two ensued. The fight ended when Ms. Ricks shot Mr. Burks. Defendant said he did not know Ms. Ricks was armed. Defendant testified he falsely confessed to the murder in order to protect Ms. Ricks. Defendant said he was telling the truth at trial because he was terminally ill.


         [Parts III (A)-(B) are deleted from publication. See post at page __ where publication is to resume.]

         A. Ineffective Assistance of Counsel

         Defendant raises ineffective assistance of counsel claims with respect to certain jury instruction issues as discussed below. To establish constitutionally ineffective assistance of counsel, a defendant must show both deficient performance, i.e., counsel's representation fell below an objective standard of reasonableness under professional norms, and prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Cunningham (2001) 25 Cal.4th 926, 1003; People v. Kraft (2000) 23 Cal.4th 978, 1068.) Further, as our Supreme Court has held, “If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268.)” (People v. Kraft, supra, 23 Cal.4th at pp. 1068-1069; accord, People v. Huggins (2006) 38 Cal.4th 175, 206.) An appellate court will not second-guess counsel's reasonable trial tactics. (People v. Riel (2000) 22 Cal.4th 1153, 1185; People v. Avena (1996) 13 Cal.4th 394, 444.)

         With respect to prejudice, a defendant must establish there is a reasonable probability the result would have been more favorable to him or her absent defense counsel's failings. (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Dickey (2005) 35 Cal.4th 884, 913.) A defendant must show a reasonable probability of a different result as a demonstrable reality. (People v. Lawley (2002) 27 Cal.4th 102, 136; People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) A trial attorney is not ineffective for failing to pursue implausible arguments, meritless motions or futile objections. (People v. Prieto (2003) 30 Cal.4th 226, 261; People v. Ochoa (1998) 19 Cal.4th 353, 432; People v. Lewis (1990) 50 Cal.3d 262, 289.) Moreover, as the United States Supreme Court has held: “[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” (Strickland v. Washington, supra, 466 U.S. at p. 697; accord, People v. Carrasco (2014) 59 Cal.4th 924, 982; In re Champion (2014) 58 Cal.4th 965, 1007.)

         B. Defendant's Confession

         Defendant asserts detectives coerced his confession by impliedly promising leniency for Ms. Ricks. Defendant further argues his trial attorney, Deputy Public Defender Elizabeth Lashley-Haynes, was ineffective for failing to challenge the admissibility of his tape-recorded confession as involuntary. We find no coercion and no ineffective assistance.

         1. The applicable involuntary confession law

         A defendant's confession may be involuntary when the police make certain express or clearly implied promises. The types of inducements which can render a statement inadmissible include promises of leniency toward or freedom for the accused, a relative or a loved one, when the promise motivates the defendant to take responsibility. (E.g., People v. Tully (2012) 54 Cal.4th 952, 993 [witness protection promise]; People v. Weaver (2001) 26 Cal.4th 876, 920 [threats to arrest family members]; People v. Boyde (1988) 46 Cal.3d 212, 238, disapproved on another point in People v. Johnson (2016) 62 Cal.4th 600, 648 [implied promise of leniency]; People v. Steger (1976) 16 Cal.3d 539, 550 [desire to free spouse]; People v. Trout (1960) 54 Cal.2d 576, 584-585, overruled on another point in People v. Cahill (1993) 5 Cal.4th 478, 509-510 [same]; People v. Matlock (1959) 51 Cal.2d 682, 697 [threat to arrest relatives]; People v. Dowdell (2014) 227 Cal.App.4th 1388, 1401 [leniency for defendant's child's mother].) The question is whether, under all the surrounding circumstances, a promise was expressly made or implied, and if so, whether it motivated the defendant's confession. (People v. Tully, supra, 54 Cal.4th at p. 986; People v. Massie (1998) 19 Cal.4th 550, 576.)

         Our Supreme Court has explained: “A confession is ‘obtained' by a promise within the proscription of both the federal and state due process guaranties if and only if inducement and statement are linked, as it were, by ‘proximate' causation. This is certainly true for the federal right. The requisite causal connection between promise and confession must be more than ‘but for': causation-in-fact is insufficient. (Hutto v. Ross [(1976)] 429 U.S. [28, ] 30, (per curiam).) ‘If the test was whether a statement would have been made but for the law enforcement conduct, virtually no statement would be deemed voluntary because few people give incriminating statements in the absence of some kind of official action.' (U.S. v. Leon Guerrero (9th Cir. 1988) 847 F.2d 1363, 1366, fn. 1.) The foregoing is also ...

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