THE PEOPLE v. ALBERTO HERNANDEZ (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Alberto Hernandez appeals from his conviction by jury verdict of two counts of attempted murder, a felony violation of Penal Code sections 664 and 187, subdivision (a), and two counts of assault with a deadly weapon, a felony violation of Penal Code section 245, subdivision (a)(2).   He claims, first, that the trial court erroneously excluded evidence that the victims' son, Danny Rivas, cultivated and sold marijuana from the victims' house.   Second, he argues the trial court erred in failing to instruct the jury sua sponte on alibi.   Alternatively, he contends trial counsel was ineffective in failing to request such an instruction.   Third, he claims trial counsel provided ineffective assistance by failing to object to purported prosecutorial misconduct.   He argues the cumulative effect of the errors he raises compels reversal.

We conclude that evidence Rivas grew and sold drugs was properly excluded because it was insufficient to link an identifiable third party to the shooting.   Trial courts do not have a sua sponte duty to instruct the jury on alibi, and defense counsel did not provide ineffective assistance by failing to request such an instruction.   Defense counsel's failure to object to purported prosecutorial misconduct fell within the range of trial tactics which we do not second-guess, and appellant failed to show prejudice from the lack of objection.   We affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

On November 15, 2008, at 4:00 p.m., appellant, Manuel Fuentes, Danny Rivas, appellant's sister Karina Hernandez, and her boyfriend Miguel Suarez were at Hernandez's house when Rivas stabbed Hernandez in her back with a knife.   Suarez took Hernandez to a hospital while appellant and Fuentes restrained Rivas at the house until police officers arrived.   Appellant then went to the hospital and claimed to have stayed there until around midnight.

At 7:00 p.m. that evening, there was a shooting at the home of Luis and Maria Mendez.   Rivas, Maria's son, lived there at the time.   Luis was shot in his shoulder and Maria in her stomach.   Both survived their injuries.

Luis and Maria provided divergent physical descriptions of the shooter;  however, both identified appellant from a six-pack photographic lineup.   Two neighbors reported to police officers that they saw a bald man with a goatee in the area before the shooting and fleeing from the crime scene.   Appellant had a goatee but was not bald.

Appellant was arrested and charged with two counts of attempted murder and two counts of assault with a deadly weapon.   He pleaded not guilty.   A jury found him guilty on all counts.   On counts 1 and 2, appellant was sentenced to two indeterminate terms of life without the possibility of parole, plus two consecutive terms of 25 years to life pursuant to Penal Code section 12022.53, subdivision (d).  The court stayed two terms of three years pursuant to Penal Code section 12022.7.   On counts 3 and 4, the court stayed sentences of the midterm of three years and stayed the enhancements, pursuant to Penal Code section 654.   This timely appeal followed.

DISCUSSION

I

Appellant argues the court erred by excluding evidence that Rivas cultivated and sold marijuana in the Mendezes' home.   This evidence, he argues, suggests that the shooting was drug related, and that a third party, connected with the drug trade, was the shooter.

Defense counsel sought to introduce evidence that police officers recovered the following from Rivas' room:  hashish oil, literature on growing marijuana, ultra violet lights, air vents, and plants resembling marijuana.   This evidence tended to prove, defense counsel argued, that Rivas was growing and selling marijuana out of his parents' house, which in turn could suggest that someone other than appellant was the perpetrator.

At a hearing pursuant to Evidence Code section 402,¹ the court asked defense counsel if there was “any other evidence that somebody, specifically, was going to go over there and shoot the parents?”   Defense counsel responded that there was no other evidence.   The court excluded the drug evidence.

We use the two-step test adopted in People v. Hall (1986) 41 Cal.3d 826 (Hall ), for determining the admissibility of proffered third party culpability evidence.   First, we determine whether there is direct or circumstantial evidence that both links the third party to the actual perpetration of the crime and is capable of raising a reasonable doubt of defendant's guilt.  (Id. at p. 834;  People v. DePriest (2007) 42 Cal.4th 1, 43[“[T]hird party culpability evidence is relevant and admissible only if it succeeds in ‘linking the third person to the actual perpetration of the crime.’  [Citations.]”].) Second, we determine whether the evidence is admissible under section 352.

Applying Hall, courts have concluded that evidence implicating a victim in drug dealing is properly excluded where there is no direct or circumstantial evidence to link an identifiable third party with the crime.   For example, in People v. Gutierrez (2002) 28 Cal.4th 1083, 1134–1137, the Supreme Court considered whether a trial court erred in excluding evidence that a third party involved in the trafficking of drugs might have killed the victim.   The defendant offered to prove the victim dealt in marijuana and owed a large sum of money to a drug dealer.  (Id. at p. 1135.)   The defendant also proffered that the victim had asked him to provide armed protection for her during a drug transaction planned for the night before her murder, the victim had purchased ammunition for this purpose, and on the night before the murder, he and the victim met a man named Pablo to consummate the drug deal.  (Ibid.) The Supreme Court concluded the trial court did not err in excluding this evidence because “there was no direct or circumstantial evidence to link Pablo or any other identifiable third party with [the victim] in the hours before her death, or indeed on the date of her death.”  (Id. at p. 1137;  see also People v. Lewis and Oliver (2006) 39 Cal.4th 970, 997[“[T]he mere presence of a saleable quantity of suspicious powder [at the crime scene] does not tend to prove that someone other than defendants committed murder as part of a drug deal, or that the police overlooked such evidence.”].)

Here, as in Gutierrez, there was no direct or circumstantial evidence to link a third party to the actual perpetration of the crime and raise a reasonable doubt of the defendant's guilt.   In other words, on its own, the evidence that Rivas was growing marijuana in the house did not link any third party, let alone an identifiable third party, to the shooting of his parents.   Without more, it was proper for the trial court to exclude such evidence.

II

Appellant contends the trial court erred in failing to instruct the jury sua sponte on an alibi defense.   As appellant concedes, trial courts do not have a sua sponte duty to instruct the jury on an alibi defense, even when it is the sole defense in the case.  (People v. Freeman (1978) 22 Cal.3d 434, 437–439;  People v. Alcala (1992) 4 Cal.4th 742, 803–804.)   Because appellant's counsel did not request the instruction, we reject appellant's claim of error.

Alternatively, appellant argues that counsel's failure to request an alibi instruction (CALCRIM No. 3400) denied appellant his state and federal rights to the effective assistance of counsel.²  Appellant based his defense at trial on three grounds:  (1) the prosecutor did not prove appellant's guilt beyond a reasonable doubt, (2) the eyewitnesses were mistaken in their identification of appellant, and (3) appellant had an alibi.   In support of his alibi defense, appellant presented witness testimony providing him with an alibi for the time of the shooting.   Witnesses each testified that they saw appellant at the hospital throughout the evening and never saw him leave.   In addition, defense counsel argued the alibi defense in both the opening and closing arguments to the jury.   However, defense counsel did not request the court to provide a separate alibi instruction to the jury.

The Sixth Amendment to the Unites States Constitution and article I, section 15, of the California Constitution provide a criminal defendant with the right to effective assistance of counsel.   In order to establish ineffective assistance of counsel requiring reversal, the defendant must show that counsel's performance was deficient, falling below an objective standard of reasonableness, and such deficient performance was prejudicial.  (People v. Ledesma (1987) 43 Cal.3d 171, 216–218 (Ledesma ).)

In determining whether counsel's performance was deficient, we exercise deferential scrutiny.  (Ledesma, supra, 43 Cal.3d at pp. 216–217.)   If trial counsel's challenged act or omission resulted from an informed tactical choice within a range of reasonable competence, we affirm the conviction.  (People v. Walker (1993) 14 Cal.App.4th 1615, 1624.)   Where the appellate record sheds no light on why counsel acted or failed to act in the manner challenged, we affirm the case unless there can be no satisfactory explanation for counsel's actions.  (See Ledesma, supra, 43 Cal.3d at p. 216.)

In order to show prejudice, the defendant must show by a preponderance of the evidence that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.  (Ledesma, supra, 43 Cal.3d at p. 218.)   A reasonable probability is one sufficient to undermine confidence in the outcome.  (Id. at pp. 217–218.)   If an appellant fails to show the challenged actions of counsel were prejudicial, we may reject the claim on that ground without determining whether counsel's performance at trial was deficient.  (People v. Sapp (2003) 31 Cal.4th 240, 263.)

As the California Supreme Court has stated “ ‘in the absence of a request [for an alibi instruction] ․ it is sufficient that the jury be instructed generally to consider all the evidence in the case, and that defendant is entitled to an acquittal in case of a reasonable doubt whether his guilt is satisfactorily shown.’  [Citations.]”  (People v. Freeman, supra, 22 Cal.3d at p. 438.)  “For the purpose of instructing with respect to an alibi defense, it is sufficient that the jury be instructed generally to consider all the evidence, and to acquit the defendant in the event it entertains a reasonable doubt regarding his or her guilt.  (People v. Alcala, supra, 4 Cal.4th at p. 804.)

Here, the jury was given general instructions on credibility (CALCRIM No. 226), burden of proof (CALCRIM No. 220), and the burden of proof and factors to consider in proving identity by eyewitness testimony (CALCRIM No. 315).   These instructions adequately informed the jury to consider the evidence in the case and acquit appellant if they had a reasonable doubt whether his guilt was satisfactorily shown.  (People v. Freeman, supra, 22 Cal.3d at p. 438.)   Since the evidence included witness testimony placing appellant at the hospital during the shooting, the jury was sufficiently instructed that it could consider this alibi testimony in determining whether the prosecution had met its burden of proof.   Because the jury was so instructed and the alibi defense was specifically argued to it, the jury was aware of the issue and must have considered it.   The failure by counsel to request an alibi instruction was not prejudicial.

III

Appellant argues that the prosecutor's arguments to the jury constituted prosecutorial misconduct.   Addressing appellant's defense of mistaken identification, he stated:  “I have a psychology major background.   Right?  So, there's a difference between someone's ability to recognize.  [It's] [c]alled recognition memory and recall memory.   Okay. The difference is this[:] [i]t is easier to recognize somebody, recognize faces, than it is to recall their names.   Right?”  Appellant contends the prosecutor improperly vouched for the eyewitnesses by referring to his outside knowledge in this statement.

“[P]rosecutors should not purport to rely on their outside experience or personal beliefs based on facts not in evidence when they argue to the jury.”   (People v. Medina (1995) 11 Cal.4th 694, 758.)   Where such misconduct occurs, counsel must make a proper objection and request an admonition, or the error is waived.  (People v. Pugh (2002) 104 Cal.App.4th 66, 74.)   Because his attorney did not object, appellant contends that his attorney was ineffective.

“[C]ompetent counsel may often choose to forgo even a valid objection.  ‘[I]n the heat of a trial, defense counsel is best able to determine proper tactics in the light of the jury's apparent reaction to the proceedings.   The choice of when to object is inherently a matter of trial tactics not ordinarily reviewable on appeal.’ ”  (People v. Riel (2000) 22 Cal.4th 1153, 1197.)

Here, the prosecutor's arguments amounted to the common sense presumption that it is easier to recognize faces than to recall names.   Defense counsel may well have decided not to emphasize the point by proffering an objection which was likely to be overruled.   The failure to object comes within the broad range of trial tactics that we may not second-guess.  (People v. Riel, supra, 22 Cal.4th at p. 1197.)

More fundamentally, appellant has not shown prejudice compelling reversal.   The prosecutor, defense counsel, and the court admonished the jury that arguments made by counsel do not constitute evidence.   The court also instructed the jury to decide the case based only on the admitted evidence.   Such instructions mitigated any impropriety in the prosecutor's closing arguments, and made it unlikely that the jury construed or applied any of the complained-of remarks in an objectionable fashion.  (See People v. Samayoa (1997) 15 Cal.4th 795, 841.)   Therefore, any failure by counsel to object was not prejudicial.³

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

We concur:

FOOTNOTES

FN1. All further code citations are to the Evidence Code, unless otherwise indicated..  FN1. All further code citations are to the Evidence Code, unless otherwise indicated.

FN2. CALCRIM No. 3400 reads in part:  “The [appellant] contends (he/she) did not commit (this/these) crime(s) and that (he/she) was somewhere else when the crime[s] (was/were) committed.   The People must prove that the [appellant] was present and committed the crime[s] with which (he/she) is charged.   The [appellant] does not need to prove (he/she) was elsewhere at the time of the crime.  [¶] If you have a reasonable doubt about whether the [appellant] was present when the crime was committed, you must find (him/her) not guilty.”.  FN2. CALCRIM No. 3400 reads in part:  “The [appellant] contends (he/she) did not commit (this/these) crime(s) and that (he/she) was somewhere else when the crime[s] (was/were) committed.   The People must prove that the [appellant] was present and committed the crime[s] with which (he/she) is charged.   The [appellant] does not need to prove (he/she) was elsewhere at the time of the crime.  [¶] If you have a reasonable doubt about whether the [appellant] was present when the crime was committed, you must find (him/her) not guilty.”

FN3. There is no cumulative effect of errors that requires reversal..  FN3. There is no cumulative effect of errors that requires reversal.

WILLHITE, J. SUZUKAWA, J.