California Court of Appeals, Second District, Fifth Division
FOR PARTIAL PUBLICATION[*]
from a judgment of the Superior Court of Los Angeles County
No. BA402910, Lisa B. Lench, Judge. Affirmed as modified with
L. Siegel, under appointment by the Court of Appeal, for
Defendant and Appellant.
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.
convicted defendant, David Warren Chestra, of first degree
murder in violation of Penal Code section 187, subdivision
(a). 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.
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
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.
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.”
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....”
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.)
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.
III (A)-(B) are deleted from publication. See post
at page __ where publication is to resume.]
Ineffective Assistance of Counsel
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.)
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.)
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.
applicable involuntary confession law
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.)
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