Opinion
APPEAL from a judgment of the Superior Court of Los Angeles County. Robert M. Martinez, Judge., Los Angeles County Super. Ct. No. KA069089.
Conrad Petermann for Defendant and Appellant John Abraham Barco.
Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant Alex Guerrero.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz and Peggie Bradford Tarwater, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
John Abraham Barco (Barco) and Alex Guerrero (Guerrero) appeal from the judgments entered upon their convictions of one count of murder (Pen. Code, § 187, subd. (a), count 1), two counts of shooting at an inhabited dwelling (§ 246, counts 2 & 3), two counts of conspiracy (§ 182, subd. (a)(1), counts 4 & 5), and one count of attempted premeditated murder (§§ 664/187, subd. (a), count 6). The jury found to be true as to both defendants, in connection with counts 1, 4, 5 and 6, the firearm use allegation within the meaning of section 12022, subdivision (a)(1), and as to count 6, the allegation that the attempted murder was willful, deliberate and premeditated. As to Guerrero, the jury also found to be true, in connection with counts 1, 2, 5 and 6, the firearm use allegation within the meaning of section 12022.53, subdivisions (b) and (c), in connection with counts 1, 2, and 5, the firearm use allegation within the meaning of section 12022.53, subdivision (d), and in connection with count 4, the firearm allegation within the meaning of section 12022.5, subdivision (a)(1). The trial court sentenced Barco to 26-years-to-life consecutive to a life term plus four months and Guerrero to 50-years-to-life consecutive to a life term plus six years eight months.
All further statutory references are to the Penal Code unless otherwise indicated.
The information, jury verdict form and appellate briefs refer to section 12022.5, subdivision (a)(1). But effective January 1, 2003, before commission of the charged offenses, section 12022.5 was amended to eliminate subdivision (a)(1), which in substance became subdivision (a).
Barco contends that (1) the trial court erroneously refused to instruct the jury in accordance with CALJIC No. 3.16 that Luis Gutierrez (Gutierrez) was an accomplice as a matter of law and that his testimony therefore required corroboration, (2) his convictions are unconstitutional because impermissibly based on insufficient evidence to corroborate the testimony of an accomplice as a matter of law, and (3) he suffered ineffective assistance of counsel as a result of his attorney’s failure to investigate and produce readily available evidence.
On May 10, 2006, Barco also filed a petition for writ of habeas corpus, case No. B191304, which is considered concurrently with this appeal. A separate order will be filed in that matter.
Guerrero contends that (4) the trial court violated his right to confrontation under the Sixth and Fourteenth Amendments by improperly allowing inculpatory hearsay evidence, (5) there is insufficient evidence to support his conviction of attempted murder, and (6) the trial court committed multiple instructional errors, thereby violating his constitutional rights to due process and trial by jury.
Each defendant has also joined in the contentions raised by his codefendant to the extent they accrue to his benefit. (Cal. Rules of Court, rule 8.200(a)(5); People v. Stone (1981) 117 Cal.App.3d 15, 19, fn. 5.)
We reverse defendants’ convictions of conspiracy to shoot at an inhabited dwelling and otherwise affirm.
FACTUAL BACKGROUND
The prosecution’s evidence
Assault on Johnny Barco (Johnny)
In August 2004, Johnny, Barco’s son, went with two friends to a party to which they were not invited, at the home of Rashaun (Rashaun) and Vicky (Vicky) Ware (collectively the Wares), in West Covina. When a large number of uninvited people arrived, Rashaun told them to leave, and a fight ensued. Rashaun was struck by a bottle. Johnny was attacked by several people, left on the street, and hit by a car as partygoers hurriedly left the residence after hearing a gunshot.
As a result of the attack, Johnny suffered life threatening injuries, including a severed thumb, broken pelvis, three broken vertebrae, numerous cuts and bruises and a footprint embedded on his face by a kick. He was hospitalized for one and one-half or two months, remaining in a coma for some time.
The Barco family
In November 2003, Gutierrez began dating Inisha Barco (Inisha), Barco’s daughter. Some time afterwards, Guerrero, Inisha’s ex-boyfriend and father of her three-year-old daughter, moved in with Inisha. He then moved out of Inisha’s residence and later into Barco’s residence. Gutierrez moved in with Inisha four or five months after they began dating and remained there until they broke up in February 2005. Gutierrez socialized at the Barco residence almost daily and got along well with the family. At the time of the assault on Johnny, Barco and his wife, Marivel, Guerrero, Johnny, and Johnny’s siblings, Nathan and Vanessa resided at Barco’s home. While Johnny was hospitalized, his family worried he would die. His parents and siblings, and then live-in boyfriend, Gutierrez, visited him daily.
Investigation of Johnny’s beating
Detective Dario Aldecoa investigated the assault on Johnny for several weeks, but was unable to locate any witnesses who could, or would, identify Johnny’s assailants. Johnny could not be interviewed due to his injuries. For two months after the assault, Barco telephoned the detective daily, sometimes two to four times a day, to learn the case status. Barco had heard from Johnny’s friends that Rashaun was involved in the assault, which he told the detective more than once. Rashaun’s photograph was included in a lineup, but neither Johnny’s friends who attended the party with him nor any other partygoers selected him as a suspect. Barco expressed frustration with the inability to make arrests.
In November 2004, Barco, Marivel and Johnny went to the police station to view photographs of Rashaun and others. Johnny could not identify anyone. With no witness identifications, Detective Aldecoa told Barco the investigation was being suspended, but that Barco could sue Rashaun civilly and apply for monetary benefits through the victim rights office. This was Detective Aldecoa’s last contact with Barco.
The December 21, 2004 shooting
On December 21, 2004, at approximately 10:00 p.m., the Wares were preparing for bed when they heard gunshots. Rashaun went to his daughter, Larissa’s, room, which faced the street, and carried her to his bedroom. There, the Wares noticed that she had been shot in the chest. Vicky called 911 and carried the telephone outside screaming hysterically. She dropped to the ground as additional shots were fired. Three or four feet from her, she saw a small white car drive away. She could not see the driver, and neither she nor Rashaun saw defendants during the shooting.
The shooting left the rear window of the Wares’s Ford Explorer shattered. A small tire iron that had broken the dining room window was found on the dining room table. Bullets also went through the dining room and kitchen windows. Larissa died at the hospital of the gunshot wound.
Neighbors and passers-by heard the shots at the Wares’ house and saw a white car, variously described by them as an older Nissan or Toyota, an older white, four-door car without hubcaps, a white economy car and a “90’s type model of a Toyota or Honda.” Antoinette Caro ran to her window and saw someone, wearing a dark, hooded sweatshirt and dark jeans run from the Wares’ house to a white car, drive away, and return and fire more shots. She could not identify the driver. Ernesto Diaz heard gunshots, went outside and saw flashes coming from inside a white car. Marc Day (Day) saw the driver of the car, whom he described as a male Hispanic, with a moustache, wearing a baseball cap. Judy Lopez heard shots and went outside where she heard a second volley of shots. Dean Vanderheyden (Vanderheyden), a reserve police officer, heard four or five gunshots and went outside, returned to his house and heard a second round of shots. He went outside again and saw a white car making a rapid exit. Only Vanderheyden reported seeing a second person in the car.
Guerrero’s arrest
On December 21, 2004, shortly after the shooting, Deputy Sheriff Henri Floris responded to a drive-by shooting call. He spotted a white, four-door Toyota Corolla, with a burned out taillight, speeding and making an illegal turn. He stopped the Toyota, two or three miles from the crime scene, approached it, and found Guerrero wearing a hooded sweatshirt and black gloves. The two front windows of the car were open.
Deputy Floris conducted a patdown search of Guerrero and recovered a cell phone, small shards of glass from Guerrero’s front pocket, a plastic baggie containing six bullets and, on the passenger seat, a black gun, with one live round, four spent casings and one empty cylinder. There was a single bullet sitting on the driver’s seat and an empty baggie on the floorboard on the driver’s side and one in the driver’s door.
After the shooting, police transported the witnesses to look at the white car that Guerrero had been driving. Each indicated that the car looked like the car involved in the shooting. Vanderheyden identified Guerrero as the driver. Day did not identify Guerrero to police that night but did in court, although he was uncertain.
Investigation of the shooting
On December 22, 2004, at 5:45 a.m., West Covina Police Sergeant, David Melnyk, went to the Barco residence to discuss the shooting. Barco said that he played pool and drank beer with Guerrero the prior evening. Barco went to sleep at approximately 9:00 p.m. He also told officers that he never heard Guerrero talk about retaliation for the attack on Johnny. He agreed to give the Sergeant the key to his daughter’s car, which had been parked in front of the house for three weeks, but the key could not be located.
Vanessa told police that Guerrero did not drink.
Ballistics tests determined that the revolver recovered from the car Guerrero was driving fired the bullets that struck Larissa and were found at the scene. Telephone records indicated that the cell phone confiscated from Guerrero received a 24-second call from the Barco residence at 9:09 p.m.
On March 3, 2005, Detective Steve Wheeless searched the Barco residence armed with arrest warrants for Barco, Inisha and Johnny. A 25-caliber handgun was recovered from a nightstand next to the bed in the master bedroom. In a bedroom closet, the detective found a newspaper with a second page article on the assault of Johnny. Johnny was released a day later and could not be located before trial.
Trial testimony regarding conspiracy
Gutierrez’s contradictory testimony
It was at the hospital that a plan to retaliate by shooting Rashaun was conceived, according to Gutierrez who provided the only evidence of such a plan. Gutierrez testified that during hospital visits, Barco often talked in front of his family and Guerrero about retaliating against whoever hurt his son. Barco blamed the owner of the house where the party occurred, whose name was mentioned several times.
The morning after the planned shooting, Gutierrez, who was then living with Inisha, lied to police and told them that he knew nothing about the shooting. But in February 2005, after he had broken up with Inisha and moved out of her apartment, and the day after she had him arrested for attempting to reenter, he called Detective Aldecoa and reported Barco’s involvement in the crime. Gutierrez claimed that he went to the police out of a guilty conscience, having nothing to do with Inisha’s having him arrested, although nothing prevented him from telling the story earlier. At the time he went to the police, they had offered him nothing, but in exchange for his truthful testimony, he was later granted immunity for his role in the shooting.
After Johnny was released from the hospital, Gutierrez testified that Barco’s talk of retaliation continued. He told household members that he wanted to kill Rashaun at Rashaun’s home, just before Christmas, so it would be a “big thing.” Barco drew a map of Rashaun’s neighborhood and said that he wanted multiple drive-by shootings. The first would wake the family and rouse them out of bed. The second would strike the then standing Ware family members who would be easier targets. Barco wanted more than one shooter and two different cars. He would drive around looking for police in the area and advise the other car when the coast was clear. Gutierrez and Guerrero were to do the shooting, for which Barco offered them money. Barco mentioned the plan to Gutierrez several times in the presence of family members and was encouraged by Johnny and Inisha. Guerrero and Inisha suggested using Inisha’s white Toyota Corolla.
Gutierrez testified that he told Barco he would be the shooter, but claimed at trial that he was merely pretending he would do so. In contradiction, he also testified that he went along with Barco’s planning, but never said he would participate. He testified that he lied to Barco about doing the shooting because he feared him. He told Inisha that he was not going to participate. Until confronted with a copy of the police report, he did not recall telling police that he had agreed to participate in the drive-by shooting. He never made any suggestions and was merely present when others spoke about the plans.
When Gutierrez met with the police in February 2005, he “indicated that [he] went along with John’s plan and agreed to participate in the drive-by shooting.”
Gutierrez testified that a few months before the shooting, Barco told him to obtain guns. While Gutierrez testified that he did not respond yes or no, he said he shook his head up and down. He also testified both that he did not purchase any gun and that he did. He explained that he did not look for a gun, but told police that in November he mentioned to a neighbor, Ray Valentine (Valentine), a “Cholo” gang member, about the assault on Johnny. Valentine offered to sell him a gun to retaliate, and even offered to do the shooting. In Gutierrez’s presence, Inisha purchased an AK-47 rifle from Valentine for $300 or $400. Gutierrez denied intending to revenge the assault on Johnny, buying the gun, being in the car, and having anything to do with the shooting.
Gutierrez told police that he purchased the unregistered assault rifle.
The AK-47 was not the weapon used in the shooting at the Wares’ residence.
At Barco’s request, two or three months before the shooting, Gutierrez brought the rifle to Barco’s garage and showed him how to load it. He did so because he feared Barco, who had threatened him in the past, had a temper, and indicated he was connected with the Mexican Mafia. Gutierrez left the rifle in the garage, retrieving it approximately a month later because Barco wanted it kept at Gutierrez’s apartment. After the shooting, Gutierrez returned it to Barco’s house.
Gutierrez testified that he knew Barco was a teacher at Don Lugo High School and taught part-time in prisons and at the California Youth Authority. He also testified that that did not make sense in light of Barco’s alleged Mexican Mafia connection.
Gutierrez testified that on the night of the shooting he was home with Inisha. He did not know the shooting was going to occur that night. After the shooting, he spoke with Barco who was angry Guerrero had been arrested and upset that Gutierrez did not do the shooting. When Gutierrez mentioned that Rashaun’s daughter had died, Barco said he was glad that Rashaun would see how it feels.
Juan Avalos’s testimony
A friend of Gutierrez, Juan Avalos, testified that in November 2004, Gutierrez told him he was having problems with Inisha. He also said that Barco wanted him to retaliate, but he was not going to do so. Gutierrez told Avalos, his ex-girlfriend, Veronica Preciado, and his mother that he was frightened and that if anything happened to him, it was Barco.
Vanessa Barco’s testimony
Vanessa testified that she never heard her father say he was upset that someone injured Johnny or indicate that he was going to retaliate. She did hear Barco become upset when Gutierrez brought a loaded rifle into their home. Barco was a high school teacher and taught inmates in state prison and at the California Youth Authority.
The defense’s evidence
Barco called no witnesses.
Guerrero called Detective Aldecoa. He testified that it appeared from the evidence that the shooter first broke the window of the Wares’ Ford Explorer and then went towards the house and threw the small tire iron into the dining room window. He then returned to the lawn and fired the first volley that struck the house as he was moving. The bullets entered the house on an upward trajectory. Vicky was standing just inside the yard when the second group of shots was fired. It appears that these were fired from inside the vehicle.
DISCUSSION
I. Right to confrontation
Guerrero, joined by Barco, contends that admission of hearsay statements of Johnny encouraging retaliation violated their rights under the Sixth Amendment confrontation clause and the Fourteenth Amendment due process clause, as it is nontestimonial hearsay and is not admissible under the coconspirator exception to the hearsay rule because not in furtherance of the conspiracy. This contention is without merit.
A. Background facts
During examination of Gutierrez, the prosecutor asked whether, when Barco discussed retaliation, Johnny ever said that retaliation was a good or a bad idea. Barco’s counsel objected on hearsay grounds. The trial court asked who was present during the conversations involving retaliation, to which Gutierrez responded that most of the Barco family, and specifically Johnny and Marivel, were present. When the trial court asked if a foundation was going to be laid, the prosecutor asked Gutierrez: “Were you ever present when Johnny Barco took part in a conversation saying, ‘Let’s go get retaliation?’” Barco’s attorney again objected that it called for hearsay, but the witness answered, “Yes,” before the ruling. A side bar ensued. The prosecutor suggested that Johnny was part of the conspiracy if he participated in such conversations and encouraged retaliation. The trial court overruled the objection based on the coconspirator exception to the hearsay rule. Defendant’s counsel further objected that the testimony violated the principles announced in Crawford. The trial court said the question did not call for hearsay because a statement of encouragement is not offered for the truth of the matter asserted. It overruled the objection and stated that the jury would be instructed to determine whether the statements were in furtherance of a conspiracy. Gutierrez then testified that Johnny encouraged the planned retaliation.
Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
B. Scope of right to confrontation
The Sixth Amendment to the United States Constitution guarantees the accused the right “to be confronted with witnesses against him.” In Crawford, the United States Supreme Court articulated the extent of that guarantee with regard to out-of-court statements of individuals not testifying at trial. The Court distinguished between testimonial and nontestimonial hearsay, with respect to the former, overruling Ohio v. Roberts (1980) 448 U.S. 56, which had allowed out-of-court statements to be admitted at trial upon a showing of sufficient indicia of reliability. (Crawford, supra, 541 U.S. at p. 68.) It concluded: “Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” (Ibid.)
While the Supreme Court left for another day any effort to spell out a comprehensive definition of “‘testimonial’” (Crawford, supra, 541 U.S. at p. 68), it suggested that it includes “‘ex parte in-court testimony’” such as “‘affidavits, custodial examinations, prior testimony . . . or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,’” as well as “‘extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,’” and “‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,’” including interrogations by law enforcement officers. (Crawford, supra, 541 U.S. at pp. 51–52.)
With regard to nontestimonial hearsay, it found Ohio v. Roberts to be “wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law -- as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.” (Crawford, supra, 541 U.S. at pp. 61, 65–66.) Nontestimonial hearsay is therefore admissible under a “‘firmly rooted hearsay exception’” or if the evidence contains “‘particularized guarantees of trustworthiness.’” (Lilly v. Virginia (1999) 527 U.S. 116, 124–125.)
C. Johnny’s out-of-court statements were not hearsay
Hearsay is “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200.) “Evidence of a declarant’s statement is not hearsay if it relates facts other than declarant’s state of mind and is offered to circumstantially prove the declarant’s state of mind. [Citation.] However, a statement is hearsay if it directly asserts the declarant’s state of mind and is offered to prove the declarant’s state of mind.” (People v. Frye (1985) 166 Cal.App.3d 941, 950.)
A conspiracy is an agreement by two or more persons to commit any crime. (§ 182, subd. (a)(1); People v. Morante (1999) 20 Cal.4th 403, 416; People v. Vu (2006) 143 Cal.App.4th 1009, 1024.) A conviction of conspiracy requires proof of four elements: (1) an agreement between two or more people, (2) who have the specific intent to agree or conspire to commit an offense, (3) the specific intent to commit that offense, and (4) an overt act committed by one or more of the parties to the agreement for the purpose of carrying out the object of the conspiracy. (§§ 182, subd. (b), 184; People v. Jurado (2006) 38 Cal.4th 72, 120; People v. Morante, supra, at p. 416; People v. Vu, supra, at p. 1024.)
Johnny’s statement, “Let’s go get retaliation,” encouraging retaliation was introduced on the question of whether he had the specific intent to agree to commit an offense. It was not a direct statement of his mental state, and, as such, was not offered for the truth of the matter asserted and is therefore not hearsay. The right to confrontation is not implicated by nonhearsay. (Crawford, supra, 541 U.S. at p. 59, fn. 9; People v. Mitchell (2005) 131 Cal.App.4th 1210, 1224; People v. Cooper (2007) 148 Cal.App.4th 731, 744.)
II. Instructional errors
CALJIC No. 2.90, as given here, provides: “A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether [his] [her] guilt is satisfactorily shown, [he] [she] is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving [him] [her] guilty beyond a reasonable doubt. [¶] Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.”
By pretrial motion, Guerrero requested that CALJIC No. 2.90 be modified to add the following sentence: “Abiding conviction means convincing you to a near certainty of the truth of the charge.” The trial court denied the motion.
Guerrero contends that the trial court erred in failing to modify CALJIC No. 2.90 pursuant to his request. He argues that the dictionary definition of “abiding conviction” is a continuing and strong belief, which is less than the near certitude that is constitutionally mandated. This, he claims, lightened the prosecution’s burden of proof and violated his rights to due process under the Fourteenth Amendment and to trial by jury under the Sixth Amendment to the United States Constitution. This contention is meritless.
The definition of reasonable doubt in CALJIC No. 2.90 is derived directly from the language of section 1096 which, when given, requires “no further instruction . . . defining reasonable doubt. . . .” (§ 1096a) Countless attacks on the “abiding conviction” language of former and current versions of CALJIC No. 2.90, similar to that made here by Guerrero, have been mounted and rejected, leading one Court of Appeal to state: “We regard the issue as conclusively settled adversely to defendant’s position. [Citation.] [¶] The time has come for appellate attorneys to take this frivolous contention off of their menus.” (People v. Hearon (1999) 72 Cal.App.4th 1285, 1286–1287 [rejecting argument that definition of reasonable doubt in CALJIC No. 2.90 fails to give jury adequate guidance as to the required level of certainty].) Similar claims have been consistently rejected by every appellate district. (People v. Hearon, supra, at p. 1286.)
In Victor v. Nebraska (1994) 511 U.S. 1, 14–15, the United States Supreme Court sustained the then language of CALJIC No. 2.90 stating: “An instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the government’s burden of proof.” Although the Supreme Court cast doubt on the “moral certainty” language of former CALJIC No. 2.90, that language has been modified and is not before us. Just last year, in People v. Cook (2006) 39 Cal.4th 566, 601, our Supreme Court rejected a challenge that CALJIC No. 2.90’s “‘an abiding conviction to a moral certainty’” language eroded the reasonable doubt standard. (See also People v. Heard (2003) 31 Cal.4th 946, 980 [rejecting defendant’s claim that the reasonable doubt instruction in CALJIC No. 2.90 is “‘hopelessly confusing’”].) The California Supreme Court has cautioned against departing from the language of this instruction. (People v. Freeman (1994) 8 Cal.4th 450, 504.)
In light of this impressive and controlling array of legal authority, Guerrero presents no compelling reason for us to revisit this issue.
B. CALJIC No. 2.51
The trial court instructed the jury in accordance with CALJIC No. 2.51, as follows: “Motive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may tend to establish the defendant is guilty. Absence of motive may tend to show the defendant is not guilty.” Defendants made no objection to or request for clarification or modification of this instruction.
Defendants contend that the trial court erred in instructing the jury in accordance with CALJIC No. 2.51. They argue that that instruction is the only instruction covering an individual evidentiary circumstance that “may tend to establish that the defendant is guilty,” that fails to include “an admonition that it is insufficient to establish guilt or otherwise made that point clear.” The failure to advise the jury that motive alone was insufficient to establish guilt, they argue, told the jury that it could use a motive finding to establish guilt, improperly shifting the burden to defendants to show that they lacked motive and violating his federal and state constitutional rights to due process and to a jury trial.
The People contend that defendants have forfeited this contention by failing to object to, or request clarification or modification, of the instruction in the trial court. We agree. “‘A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.’” (People v. Hart (1999) 20 Cal.4th 546, 622; see also People v. Bolin (1998) 18 Cal.4th 297, 328; People v. Jurado, supra, 38 Cal.4th at p. 124.)
Even if this contention had been properly preserved for appeal, we would find it to be without merit. It has been explicitly rejected by our Supreme Court in People v. Snow (2003) 30 Cal.4th 43, 97–98, where the defendant argued that CALJIC No. 2.51 suggested to the jury that proof of motive alone could establish guilt because it did not caution the jury that motive alone was insufficient to do so. The Supreme Court stated: “If the challenged instruction somehow suggested that motive alone was sufficient to establish guilt, defendant’s point might have merit. But in fact the instruction tells the jury that motive is not an element of the crime charged (murder) and need not be shown, which leaves little conceptual room for the idea that motive could establish all the elements of the murder. When CALJIC No. 2.51 is taken together with the instruction on the concurrence of act and specific intent (CALJIC No. 3.31) and the instruction outlining the elements of murder and requiring each of them to be proved in order to prove the crime (CALJIC No. 8.10), there is no reasonable likelihood [citation] it would be read as suggesting that proof of motive alone may establish guilt of murder.”
C. Failure to instruct on one or more conspiracies
The prosecution charged defendants with two separate conspiracies based upon the same overt acts; a conspiracy to shoot at an inhabited dwelling (count 4) and a conspiracy to murder (count 5).
Guerrero contends that the trial court erred in failing to instruct the jury of its obligation to determine whether there was one or two separate conspiracies. He argues that because the two conspiracies involved the same motive, overt acts, and target, occurred at the same time and place, and were perpetrated by the same means, the jury should have been instructed to determine whether there were two distinct conspiracies. While we do not agree that there was instructional error, we do conclude that there was insufficient evidence to sustain both conspiracy convictions.
As discussed in part IC, ante, to convict of conspiracy, the prosecution must prove an agreement between two or more people, with the specific intent to conspire to commit an offense, the specific intent to commit that offense, and an overt act by one or more of the people to carry out the object of the conspiracy. (§§ 182, subd. (b), 184; People v. Jurado, supra, 38 Cal.4th at p. 120.)
In Braverman v. United States (1942) 317 U.S. 49 (Braverman), the defendants were charged with multiple counts of conspiracy based on an agreement that would entail violating statutory restrictions on the manufacture, transportation and distribution of liquor. (Id. at p. 51.) The United States Supreme Court explained that “when a single agreement to commit one or more substantive crimes is evidenced by an overt act, as the statute requires, the precise nature and extent of the conspiracy must be determined by reference to the agreement which embraces and defines its objects. Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one.” (Id. at p. 53.)
“In a conspiracy, ‘the gist of the offense is the unlawful agreement between the conspirators to do an act contrary to law, accompanied by an overt act to at least start to carry the conspiracy into effect.’ [Citation.]” (People v. Vargas (2001) 91 Cal.App.4th 506, 552.) “‘“One agreement gives rise to only a single offense, despite any multiplicity of objects.”’” (Ibid.) “‘Performance of separate crimes or separate acts in furtherance of a conspiracy is not inconsistent with a “single overall agreement.”’” (Id. at pp. 553–554.) The test of whether a single conspiracy has been formed is whether the acts “were tied together as stages in the formation of a large all-inclusive combination, all directed to achieving a single unlawful end or result.” (Blumenthal v. United States (1947) 332 U.S. 539, 558; see also People v. Liu (1996)46 Cal.App.4th 1119, 1133.)
While the question of whether there is one or more than one conspiracy is ordinarily a factual one that the jury must decide based upon proper instruction (see People v. Morocco (1987) 191 Cal.App.3d 1449, 1453; see also People v. Cook (1984) 151 Cal.App.3d 1142, 1146; but cf. People v. Liu, supra, 46 Cal.App.4th at p. 1133; People v. Davis (1989) 211 Cal.App.3d 317, 322), a trial court is required to instruct the jury to determine whether a single or multiple conspiracies exist only when there is evidence to support alternative findings. (People v. Jasso (2006) 142 Cal.App.4th 1213, 1220.)
We find no such evidence here. The question is not whether multiple offenses were committed, but whether there was a single agreement with one object. The shooting at the Wares’ residence and murder of one or more of its inhabitants were pursuant to the same agreement and had a single purpose; to retaliate against Rashaun and his family for their purported involvement in the assault on Johnny. The participants in the shooting and murder were the same, the murder and shooting occurred at the same time, and the shooting was nothing more than the act chosen to accomplish the murder. Under these facts, we cannot say that there was evidence to support two conspiracies, and hence the trial court correctly refused to submit to the jury the question of whether there was one or two conspiracies.
But by that same reasoning, there was insufficient evidence to support both conspiracy convictions. We find no conceivable construction of the evidence that would make the shooting at the Wares’ residence anything other than the means of achieving the sole object of the conspiracy: to kill Rashaun or his family members. Consequently, defendants’ convictions of conspiracy to shoot at an inhabited dwelling must be reversed.
D. CALJIC No. 3.16
Pursuant to section 1118.1, Barco moved for judgment of acquittal based on the alleged lack of evidence to corroborate Gutierrez’s testimony. The trial court denied the motion stating: “I think there’s a substantial issue as to whether or not Mr. Gutierrez is, in fact, an accomplice; and the jury is going to be instructed as to the criteria that is [sic] required in order to make one an accomplice. . . . [I]f the jury makes a determination that he is an accomplice, I think there are several items in evidence that may have a tendency to connect this defendant.”
Later, during the jury instruction conference, when asked if the court was going to instruct in accordance with CALJIC No. 3.16, the court stated: “. . . I do not intend to give that instruction. I think what I really meant in the ruling on the matter is that in order to make one an accomplice, there has to be the requisite intent and that’s a material issue of fact that this jury has to decide as to whether Mr. Gutierrez had the requisite intent to be an accomplice, and the jury will make a[] determination as to whether or not Mr. Gutierrez is an accomplice.” The trial court thereafter instructed the jury on accomplice liability pursuant to CALJIC Nos. 3.10, 3.11, 3.12, 3.14, 3.18, 3.19.
CALJIC No. 3.16 provides: “If the crime of _________ was committed by anyone, the witness____________ was an accomplice as a matter of law and [his][her] testimony is subject to the rule requiring corroboration.”
CALJIC No. 3.10, as given, provides: “An accomplice is a person who is or was subject to prosecution for the identical offense charged in Counts 1, 2, 3, 4, 5, and/or 6 against the defendant on trial by reason of aiding and abetting or being a member of a criminal conspiracy.”
CALJIC No. 3.11, as given, provides: “You cannot find a defendant guilty based upon the testimony of an accomplice unless that testimony is corroborated by other evidence which tends to connect that defendant with the commission of the offense. [¶] Testimony of an accomplice includes any out-of-court statement purportedly made by an accomplice received for the purpose of proving that what the accomplice stated out-of-court was true.”
CALJIC No. 3.12, as given, provides: “To corroborate the testimony of an accomplice there must be evidence of some act or fact related to the crime which, if believed, by itself and without any aid, interpretation or direction from the testimony of the accomplice, tends to connect the defendant with the commission of the crime charged. [¶] However, it is not necessary that the evidence of corroboration be sufficient in itself to establish every element of the crime charged, or that it corroborate every fact to which the accomplice testifies. [¶] In determining whether an accomplice has been corroborated, you must first assume the testimony of the accomplice has been removed from the case. You must then determine whether there is any remaining evidence which tends to connect the defendant with the commission of the crime. [¶] If there is no independent evidence which tends to connect defendant with the commission of the crime, the testimony of the accomplice is not corroborated. [¶] If there is independent evidence which you believe, then the testimony of the accomplice is corroborated.”
CALJIC No. 3.14, as given, provides: “Merely assenting to or aiding or assisting in the commission of a crime without knowledge of the unlawful purpose of the perpetrator and without the intent or purpose of committing, encouraging or facilitating the commission of the crime is not criminal. Thus a person to [sic] assents to, or aids, or assists in, the commission of a crime without that knowledge and without that intent or purpose is not an accomplice in the commission of the crime.”
CALJIC No. 3.18, as given, provides: “To the extent that an accomplice gives testimony that tends to incriminate a defendant, it should be viewed with caution. This does not mean, however, that you may arbitrarily disregard that testimony. You should give that testimony the weight you think it deserves after examining it with care and caution and in the light of all the evidence in this case.”
CALJIC No. 3.19, as given provides: “You must determine whether the witness . . . was an accomplice as I have defined that term. [¶] The defendant has the burden of proving by a preponderance of the evidence that . . . was an accomplice in the crime[s] charged against the defendant.”
Defendants contend that the trial court committed prejudicial error in failing to instruct the jury that Gutierrez was an accomplice as a matter of law, in accordance with CALJIC No. 3.16, thereby requiring evidence to corroborate his testimony. This contention is without merit.
An accomplice’s testimony is viewed with caution and suspicion because it comes from a tainted source and might have been given in the hope or expectation of leniency. (People v. Vu, supra, 143 Cal.App.4th at p. 1023.) Consequently, a conviction cannot stand on the uncorroborated testimony of an accomplice. (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1157.)
“An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” (§ 1111; People v. Boyer (2006) 38 Cal.4th 412, 467.) “In order to be chargeable with the identical offense, the witness must be considered a principal under section 31.” (People v. Fauber (1992) 2 Cal.4th 792, 833; People v. Lewis (2001) 26 Cal.4th 334, 368–369.) Section 31 provides that “[a]ll persons concerned in the commission of a crime . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission . . . are principals in any crime so committed.” A person aids and abets in the commission of a crime if he or she “acts with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” (People v. Beeman (1984) 35 Cal.3d 547, 560.) Coconspirators are treated as accomplices for the purpose of meeting the requirement that an accomplice’s testimony must be corroborated. (People v. Garcia (2000) 84 Cal.App.4th 316, 326.)
To be an accomplice as a matter of law, there can be no dispute that the witness was an accomplice, either with regard to the facts or the inferences to be drawn from them. (People v. Fauber, supra, 2 Cal.4th at pp. 833–834.) There must be no dispute whether the person acted with knowledge of the criminal purpose, and with the intent or purpose, of committing, encouraging or facilitating commission of the offense. While Barco focuses on Gutierrez’s testimony suggesting that he was an accomplice, he ignores Gutierrez’s contradictory testimony that he was not.
Gutierrez’s testimony was riddled with inconsistency. He admitted to police that he purchased an AK-47 for Barco but also testified that Inisha, not he, purchased that weapon. While he testified that he told Barco he would do the shooting, he also testified that he never agreed to the shooting, did not intend to seek revenge against Rashaun and was only pretending and lying to Barco when he said he would participate. He told Inisha he did not want to do the shooting, and testified that he had nothing to do with it.
In short, Gutierrez’s inconsistent testimony gave rise to two diametrically opposed inferences. One would clearly make him an accomplice while the other would not. Under these disputed facts, it was for the jury to determine Gutierrez’s credibility and which was the truthful version. Credibility and factual determinations are within the exclusive province of the trier of fact. Hence, the trial court correctly refused to make that determination and instruct the jury that Gutierrez was an accomplice as a matter of law.
Relying upon language in People v. Beeman that an aider and abettor must act “with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense” (People v. Beeman, supra, 35 Cal.3d at p. 560, italics added), Barco argues that there is no dispute that Gutierrez was an accomplice. The evidence is undisputed that he acted with knowledge of the criminal purpose of the perpetrator, as he admitted being present during the planning. “The required second element for an aider and abettor is itself phrased in the disjunctive; he is one who acts ‘with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.’” He asserts that while appellant’s intent may be in dispute, “his purpose was clearly not,” as he admitted purchasing an AK-47, the only purpose of which was to facilitate the shooting. Consequently, both requirements to be an aider and abettor, (1) knowledge and (2) intent or purpose, were undisputed.
This argument fails for several reasons. First, the Supreme Court in Beeman did not intimate that it intended the words “intent” and “purpose” to constitute separate and distinct requirements. Rather, those terms appear to have been used simply as alternative ways of describing a single requirement: that an aider and abettor must harbor a mental state aimed at achieving the charged offense.
Second, Gutierrez’s statement that he purchased an AK-47 was contradicted by his statement that he did not. To the extent that Barco contends that the “purpose” element is undisputed because Gutierrez purchased an AK-47, he is therefore wrong.
Third, Barco’s efforts to distinguish between “intent” and “purpose”parses that language too finely. The cases he cites using those terms do not suggest an analytical distinction between them. (See, e.g., People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 740–745; People v. Gibson (2001) 90 Cal.App.4th 371, 386; People v. Culuko (2000) 78 Cal.App.4th 307, 326; People v. Manriquez (1999) 72 Cal.App.4th 1486, 1491.) Webster’s Third New International Dictionary defines “intent” as “the design or purpose to commit a wrongful act.” (Italics added.) In Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 173, footnote 5, in discussing the meaning of the word “purpose” in the Business and Professions Code section 17043, the Supreme Court stated that “[t]he Model Penal Code itself resolves the ambiguity by defining ‘“intentionally” or “with intent”’ as meaning ‘purposely.’” Thus, intent and purpose can be used as synonyms.
Even if the trial court should have instructed the jury that Gutierrez was an accomplice as a matter of law, the failure to do so was harmless as there was sufficient evidence to corroborate his testimony. “The corroborating evidence may be circumstantial or slight and entitled to little consideration when standing alone, so long as it tends to implicate the defendant by relating to an act that is an element of the crime. [Citations.] The independent evidence need not corroborate the accomplice as to every fact on which the accomplice testifies [citation] and need not establish every element of the charged offense [citation]. The corroborating evidence is sufficient if, without aid from accomplice testimony, it ‘“‘tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth.’”’ [Citations.]” (People v. Vu, supra, 143 Cal.App.4th at pp. 1021–1022.)
The evidence, although slight, was sufficient to establish a connection between Barco and the charged offenses so as to corroborate Gutierrez’s testimony. Barco had a strong motive to shoot at the Wares, as his son had been brutally beaten at their residence. He was understandably consumed by his son’s fight for life, speaking daily with the investigating detective, sometimes several times a day, over a period of two months, to determine whether the guilty party had been apprehended. Barco was frustrated when told that the investigation was being suspended for lack of an identification witness. As a reminder, he kept a newspaper article on his son’s assault in a closet in his master bedroom. Vanessa reported that Gutierrez brought a loaded gun into her house before the shooting, providing some support for Gutierrez’s testimony that he had brought the AK-47, acquired pursuant to Barco’s instruction to procure a weapon for the retaliation, to Barco to show him how to load it. Also, within a matter of minutes before the shooting, a telephone call was made from Barco’s home phone to the cellular phone carried by Gutierrez when arrested.
E. Cumulative prejudice from multiple instructional errors
As we have concluded that defendants’ claims of instructional error are without merit, there exists no prejudice to cumulate.
III. Sufficiency of the evidence
A. Guerrero’s conviction of attempted murder
Guerrero was convicted of the attempted murder of Vicky. He contends that there is insufficient evidence to support this conviction. He argues that in order for the prosecution to prove attempted murder, it must prove that he had the specific intent to kill Vicky, but that the evidence only suggests an intent to kill Rashaun. He points to the evidence that Vicky ran outside and dropped to the ground just three or four feet from the shooter when the second volley of bullets began, yet “those shots had straight line trajectories into the house.” He concludes that that indicates that Vicky was not in the “‘kill zone.’” This contention is without merit.
“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Bolin, supra, 18 Cal.4th at p. 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995)37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless ‘“upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, at p. 331.) This standard of review is the same in cases involving circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.)
Attempted murder requires proof of a direct but ineffectual act done towards killing another human being and the specific intent to unlawfully kill another human being. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466–1467 [citing CALJIC NO. 8.66 with approval]; see also People v. McCoy (2001) 25 Cal.4th 1111, 1118.) Citing People v. Bland (2002) 28 Cal.4th 313, 328–329 (Bland), Guerrero argues that the only evidence was that he intended to kill Rashaun and the doctrine of transferred intent is inapplicable to a charge of attempted murder to transfer that intent to Vicky. While Bland did conclude that that doctrine was inapplicable to attempted murder, it continued: “The conclusion that transferred intent does not apply to attempted murder still permits a person who shoots at a group of people to be punished for the actions towards everyone in the group even if that person primarily targeted only one of them. . . . [¶] [A]lthough the intent to kill a primary target does not transfer to a survivor, the fact the person desires to kill a particular target does not preclude finding that the person also, concurrently, intended to kill others within what it termed the ‘kill zone.’ ‘The intent is concurrent . . . when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim’s vicinity. For example . . . a defendant who intends to kill A and, in order to ensure A’s death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire . . . the defendant has intentionally created a “kill zone . . . .’”” (Id. at pp. 328–329; see also People v. Vang (2001) 87 Cal.App.4th 554, 563–565 [attempted murder charges as to everyone in two houses shot at by defendants affirmed, though defendants may have targeted only one person at each house].)
There was a “kill zone” created at the Wares’ residence. Barco discussed retaliation against Rashaun and his family. While Rashaun was likely the primary target, the retaliation plan contemplated two drive-by shootings at night; the first to wake the “family” so they would stand up, and the second to “shoot again” at the easier, upright targets. Guerrero sprayed at least 11 bullets blindly into the Wares’ residence, obviously intending to hit anyone inside, thereby creating a “killing zone” and placing everyone in the vicinity of the residence in jeopardy. The fact that the second round of bullets was shot on a straight trajectory into the house and did not hit Vicky, who had come outside and ducked to the ground only three to four feet away from the shooter, does not negate the inference that she was within the kill zone. Guerrero’s second volley of bullets may have missed Vicky because she ducked and therefore avoided the trajectory of the bullets. There is no evidence the bullets did not come close to her or that Guerrero did not try to kill her, but merely missed his target. This round of shots came from inside Guerrero’s car, where his angle of fire may have been limited. Guerrero intended to kill everyone within the kill zone, which included Vicky who was in front of her house.
B. Barco’s convictions
Barco contends that because Gutierrez was an accomplice as a matter of law and there was no corroborating evidence that Barco was involved in the crimes, there is insufficient evidence to support his convictions. This contention is without merit.
We have concluded in part IID, ante, that the trial court correctly determined that Gutierrez was not an accomplice as a matter of law and thus corroboration was unnecessary. Gutierrez’s testimony, previously recounted, was clearly sufficient to implicate Barco as a conspirator in the shooting. We alternatively concluded that even if Gutierrez was an accomplice as a matter of law, there was sufficient evidence to corroborate his testimony.
IV. Ineffective assistance of counsel
Barco challenged the effectiveness of his trial counsel, Anthony Robusto (Robusto), in a motion for new trial. There, as here, he based his claim on three alleged general categories of deficient representation; (1) the failure to investigate and introduce evidence to impeach Gutierrez with his crimes of moral turpitude, violent nature, readiness to retaliate and motive to falsely implicate Barco, (2) the failure to investigate and introduce evidence of Barco’s character for nonviolence and that he did not threaten retaliation, and (3) the failure to make a Wheeler motion to challenge the prosecution’s use of three of the eight peremptory challenges which it exercised to remove Hispanics from the jury.
At the beginning of the hearing on the new trial motion, Guerrero blurted: “Your honor, Mr. Barco’s innocent. He has nothing to do with anything. You guys convicted him over a testimony of some guy -- . . . A new trial would show that.”
People v. Wheeler (1978) 22 Cal.3d 258.
In support of the motion, Barco presented numerous declarations and other evidence, including: (1) A statement to police by Valentine that he was present at the sale of an AK-47 to Gutierrez in November 2004. (2) A videotaped statement to police and declaration of Inisha describing her breakup with Gutierrez and his motive to retaliate against Barco for changing the locks on Inisha’s doors, after Gutierrez broke into her apartment, and Inisha refusing to give Gutierrez his property until he reimbursed Inisha for what he had misappropriated; mentioning Gutierrez’s threat to “talk about the situation with Alex Guerrero and her father,” if Inisha did not return his property; Gutierrez’s involvement in dealing illicit drugs and incidents of violent and criminal conduct, including burning his ex-girlfriend’s car, breaking her arm, beating and killing a man, and being arrested for a shooting in the park; an incident in which she was present with Gutierrez when he ran down a man at a gas station because the man had been taunting him; and stating that she gave this information to trial counsel. (3) An audiotaped statement to police and declaration of Marivel describing the breakup between Inisha and Gutierrez and her husband’s involvement in it; that Gutierrez threatened to lie to the police that Barco wanted to retaliate for Johnny’s injuries if Barco did not return Gutierrez’s property; a second threat by Gutierrez against the Barcos because Gutierrez believed they vandalized his car that he left by their house, although Marivel made a police report when it was found vandalized; that a bullet was shot through Inisha’s apartment and reported to the police a few days after Gutierrez’s car was vandalized; and that this information was given to Robusto. (4) A declaration of Laura Frausto, Gutierrez’s former girlfriend, describing several acts of violence by Gutierrez and stating that she saw him with two guns. (5) A declaration of Nathan stating that he never heard his family talk of retaliation for Johnny’s assault; that Gutierrez asked Nathan if he wanted to buy a gun; and that Nathan gave this information to Robusto. (6) A declaration of Michael Gabriel, who had dated Vanessa, stating that Guiterrez tried to sell cocaine to Gabriel’s friend at a party and asked Gabriel if he had connections to purchase drugs, although he never saw Gutierrez with drugs; that he heard Gutierrez say at the hospital while visiting Johnny that they should retaliate. (7) Declarations of numerous witnesses stating that Barco was not violent; never made statements about retaliating for Johnny’s injuries; and that each declarant was never contacted by Robusto. (8) A declaration of Conrad Petermann (Petermann), an attorney hired to represent Barco in his motion for new trial (and also his appellate counsel), stating that on October 10 and 11, 2005, he spoke with Robusto who told him that he did not hire an investigator for the case and did not investigate Gutierrez’s background; and that, “In none of the discovery acquired from [Barco’s counsel was] there any account of any background investigation of Luis Gutierrez.”
An incident report of Sentry Tech Systems, filed in support of the motion, noted a burglary of Inisha’s apartment on February 22, 2005, and that Lydia Alvarez saw Gutierrez enter and exit Inisha’s apartment between 3:00 and 4:00 p.m.
The trial court denied the new trial motion. With regard to the ineffective assistance of counsel claim, it observed that (1) defense counsel “went after [Mr. Gutierrez]” at trial and had already introduced evidence implying he was a drug dealer or thief, (2) much of the evidence of Gutierrez’s conduct involving moral turpitude would likely have been limited under Evidence Code section 352 to avoid a “trial within a trial,” (3) the failure to call Inisha or Marivel may have been the result of Fifth Amendment concerns and the limited value of their testimony given their relationship to Barco, (4) evidence of Barco’s character for nonviolence would be of limited relevance to his understandably extreme reaction to the brutal beating and injuries suffered by his son, and (5) it was not convinced that individuals with Latin surnames were systematically excluded from the jury in light of the small number of peremptory challenges exercised by the prosecution.
Barco contends that he suffered ineffective assistance of counsel. He argues that his counsel’s failure to investigate and introduce evidence of Gutierrez’s crimes of moral turpitude, violent nature, readiness to retaliate and motive to falsely implicate Barco, failure to introduce evidence of his friends, relatives and work associates that he was a nonviolent person and had done nothing to indicate that he planned to retaliate, and failure to make a Wheeler motion in response to the prosecutor’s peremptory challenge to three Hispanic prospective jurors fell below the appropriate standard of representation, to Barco’s prejudice.
To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel’s representation fell below an objective standard of reasonableness, and, but for counsel’s errors, there is a reasonable probability that the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) A reasonable probability “‘is a probability sufficient to undermine confidence in the outcome.’” (People v. Adkins (2002) 103 Cal.App.4th 942, 950.)
“‘“Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’” [Citation.] . . . . “Tactical errors are generally not deemed reversible, and counsel’s decision-making must be evaluated in the context of the available facts.” [Citation.] [¶] In the usual case, where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions. ([Citation]; see also People v. Fosselman (1983) 33 Cal.3d 572, 581 [on appeal, a conviction will be reversed on the ground of ineffective assistance of counsel “only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission”].)’ [Citation.]” (People v. Jones (2003) 29 Cal.4th 1229, 1254.) “In some cases, however, the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged. In such circumstances, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal.” (People v. Pope (1979) 23 Cal.3d 412, 426, fn. omitted; disapproved on other grounds in People v. Berryman, supra, 6 Cal.4th at p. 1081, fn. 10.)
A. Failure to call witnesses and present evidence
Much of the challenged conduct here pertains to Robusto’s failure to call certain witnesses and present evidence. These types of decisions are peculiarly a matter of trial tactics, unless the decision results from the unreasonable failure to investigate. (People v. Jones, supra, 29 Cal.4th at p. 1254; People v. Bolin, supra, 18 Cal.4th at p. 239.) The reasons for the failures here do not appear in the record, and thus we cannot find ineffective assistance of counsel unless there is no conceivable reason for failing to present the testimony or unless trial counsel was asked for explanations and failed to give them. (People v. Pope, supra, 23 Cal.3d at p. 426.) The record does not reflect requests for explanations from Robusto or of a failure to provide them. We cannot say that there is no conceivable reason for not presenting the suggested testimony. Much of the information in the declarations regarding Gutierrez’s past wrongdoing constitutes inadmissible hearsay and speculation. It is unclear whether there were witnesses who could be located to provide admissible evidence on those points, and whether Robusto tried to locate them. The testimony of Inisha and Marivel may not have been presented because of the possibility of their asserting their Fifth Amendment privilege and because their relationship to Barco would make their testimony unconvincing. Evidence of Barco’s good character might not have been presented because it would open up the subject of his bad character. Further, much of the information offered by the witnesses regarding Gutierrez’s character was already before the jury in some form or another.
B. Failure to investigate
There is insufficient competent evidence in the record that Robusto failed to investigate Gutierrez’s background. The statement in Petermann’s declaration that Robusto told him he did not hire an investigator for the case and conducted no investigation into Gutierrez’s background is inadmissible hearsay. This highlights the need for, and absence of, information directly from Robusto as to his conduct of this trial. Petermann’s statement that Robusto provided him “discovery he had been provided in the case” is unenlightening. It appears to refer to discovery provided by the prosecution. It does not indicate that Robusto provided his entire file and records of what he did in preparation for trial, what information he had gathered, what investigation he conducted and other information germane to his efforts.
C. Failure to make Wheeler motion
People v. Wheeler, supra, 22 Cal.3d 258.
The record is insufficient to determine whether Robusto was ineffective in failing to make a Wheeler motion. As stated in People v. Bolin, and equally applicable here, “Defendant makes a related claim of ineffective assistance of counsel for failing to preserve the Wheeler issue. On this record, we are unable to determine the reason counsel did not make a timely challenge. He may have perceived the prosecutor could adequately rebut the charge, or he himself may have been dissatisfied with the individuals excused. Since the decision may well have been ‘an informed tactical choice within the range of reasonable competence, the conviction must be affirmed. [Citation.]’ [Citation.]” (People v. Bolin, supra, 18 Cal.4th at p. 317.)
D. Conclusion
The appellate record is simply insufficient to warrant reversal of Barco’s convictions based on ineffective assistance of counsel.
DISPOSITION
Defendants’ convictions of conspiracy to shoot at an inhabited dwelling in count 4 are reversed. The judgment is otherwise affirmed.
We are concurrently denying Barco’s petition for writ of habeas corpus based on ineffective assistance of counsel made on substantially the same record as the record on appeal. That record fails to contain any indication that Robusto was contacted for an explanation of his failures or that he failed to give such an explanation. The record also is unenlightening regarding whether, and the extent to which, Robusto conducted an investigation of Gutierrez. (People v. Adkins, supra, 103 Cal.App.4th at p. 950.)
We concur: DOI TODD, Acting P. J., CHAVEZ, J.