Opinion
C083886
11-06-2019
THE PEOPLE, Plaintiff and Respondent, v. DEZMON RAY MCCLARY, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F06105)
A jury convicted defendant Dezmon Ray McClary of first degree murder and found true an allegation that he personally used a firearm. The trial court sentenced him to 25 years to life for the murder, plus a consecutive 25 years to life for the firearm enhancement.
Defendant's first name is misspelled as "Desmond" on the abstract of judgment.
Defendant now contends (1) the trial court erred in instructing the jury with CALCRIM No. 625, because it prevented the jury from considering his voluntary intoxication in connection with his claim of imperfect self-defense; (2) the prosecutor committed misconduct in arguing to the jury that defendant sought help from another gang member, and in the alternative, defendant's trial counsel was ineffective in failing to object to the statement; (3) the trial court violated defendant's right to be present at a critical stage of the trial by permitting the readback of testimony in his absence and without his personal waiver; and (4) the matter should be remanded to permit the trial court to exercise its discretion to strike the firearm enhancement.
We will remand the matter to permit the trial court to exercise its discretion regarding the firearm enhancement, and otherwise affirm the judgment.
BACKGROUND
Mariana T. began spending time with the victim, Marcus Gonzalez, after she ended her relationship with defendant. Defendant learned of the new relationship and he was jealous. Defendant threatened Mariana with a shotgun and he also threatened to harm Gonzalez.
Mariana's sister told police Mariana showed her messages from defendant stating, "when I catch him slippin', I'm gonna get him." Defendant explained the phrase "catch him slippin" meant catching a person off guard. There was evidence that defendant made additional threats.
On the day of the murder, defendant and a man named Charles Johnson entered an apartment where Gonzalez and Mariana's sister were present. Defendant carried a shotgun and Johnson had a small handgun. Defendant asked Mariana's sister about Mariana's location, but the sister said she did not know. Defendant then stood over Gonzalez, who was on the floor behind the couch, and said, "We caught you slippin" or "I caught you slippin." Mariana's sister and another woman ran and hid. They heard a loud gunshot, and Gonzalez died of a shotgun wound to the chest.
Defendant and Johnson were tried together, and defendant testified at trial. He admitted being angry about Mariana ending their relationship and being jealous of her seeing other men. But he offered the following version of events. He drank a lot of alcohol and used methamphetamine and cocaine the night before the shooting. He sent Mariana messages and called her numerous times but she did not respond. He then asked Johnson to go with him to the apartment. Defendant stopped somewhere to get a handgun, which he gave to Johnson. Defendant had his shotgun. At the apartment defendant and Gonzalez had a few words; defendant lifted his shotgun, with his finger on the trigger, when Gonzalez pulled up his pants and the shotgun discharged. Defendant fled. He threw the shotgun away and deleted information from his cell phone. Defendant denied that he intended to kill anyone or that he and Johnson had planned to kill Gonzalez.
The jury convicted defendant of first degree murder (Pen. Code, § 187, subd. (a)) and found true the allegation that defendant personally used a firearm and proximately caused the death of Gonzalez (§ 12022.53, subds. (b) & (d)). The trial court sentenced defendant to 25 years to life, plus an additional consecutive term of 25 years to life for the firearm enhancement.
Undesignated statutory references are to the Penal Code. --------
This appeal only pertains to defendant. Johnson brought a separate appeal from his conviction. (Case No. C083889) Additional background is provided in the discussion regarding defendant's specific contentions on appeal.
DISCUSSION
I
Defendant asserts the CALCRIM No. 625 instruction prevented the jury from considering his voluntary intoxication in connection with his claim of imperfect self-defense.
Defendant's trial counsel argued, among other things, that defendant shot Gonzalez because he believed he needed to defend himself. The trial court instructed the jury on imperfect self-defense, and it also instructed the jury, pursuant to CALCRIM No. 625, as follows: "You may consider evidence, if any, of a defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill or the defendant acted with deliberation and premeditation. [¶] A person is voluntarily intoxicated if he becomes intoxicated by willingly using any intoxicating drug, drink or other substance knowing that it could produce an intoxicating effect or willingly assuming the risk of that effect. [¶] You may not consider evidence of voluntary intoxication for any other purpose."
After briefing was completed in this case, the California Supreme Court held that evidence of voluntary intoxication is inadmissible to prove the defendant believed it was necessary to act in self-defense, and CALCRIM No. 625 properly permits the jury to consider evidence of voluntary intoxication on the question of whether the defendant intended to kill but not on the question of whether the defendant believed he or she needed to act in self-defense. (People v. Soto (2018) 4 Cal.5th 968, 970.) Interpreting the language of section 29.4 and considering the legislative intent behind the statute, the Supreme Court concluded that voluntary intoxication evidence is inadmissible to prove the defendant was unaware, due to intoxication, that the victim posed no actual threat. (Soto, at pp. 978-979.) The CALCRIM No. 625 instruction given in Soto is essentially the same as the one given in this case. (Id. at p. 973.) Pursuant to Soto, there is no merit to defendant's claim of instructional error. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity Sales).)
II
Defendant next argues the prosecutor committed misconduct in arguing to the jury that defendant sought help from another gang member, and in the alternative, defendant's trial counsel was ineffective in failing to object to the statement.
Outside the presence of the jury, Johnson's trial counsel requested a limiting instruction regarding gang evidence after defendant testified on direct examination that he was briefly in a gang when he was 15 years old. Johnson's counsel was concerned about the admission of evidence about Johnson's gang affiliation. He argued gang evidence was relevant only to impeach defendant. The trial court agreed to give a limiting instruction that any mention of gang affiliation could only be used to evaluate defendant's testimony and for no other purpose. It gave the jury that instruction during defendant's cross-examination. The trial court instructed the jury on the use of gang evidence again before closing arguments. It instructed, pursuant to CALCRIM No. 1403, that the jury may consider evidence of defendant's gang activity only for the limited purpose of evaluating the credibility of his testimony. In particular, it told the jury not to conclude from evidence of defendant's gang activity that defendant was a person of bad character or that he had a disposition to commit crime.
The prosecutor argued to the jury that when Mariana told defendant she wanted to end their relationship, defendant threatened Mariana and Gonzalez. The prosecutor said defendant then turned to his best friend and fellow gang member, Johnson. Defendant had testified that he joined a Bloods gang when he was 15 years old and that Johnson joined the same gang. The prosecutor reminded the jury that defendant testified a gang member who wanted to commit a crime would turn to another gang member for help. He argued that defendant turned to Johnson for help and defendant and Johnson intended to commit murder. The prosecutor urged that defendant, with Johnson's help, made good on his threats against Gonzalez.
Defendant's trial counsel did not object to the prosecutor's closing remark that defendant now asserts was misconduct, and defense counsel did not ask the trial court to admonish the jury. Defendant has thereby forfeited his prosecutorial misconduct claim. (People v. Riggs (2008) 44 Cal.4th 248, 298; People v. Panah (2005) 35 Cal.4th 395, 462.) " 'The purpose of the rule requiring the making of timely objections is remedial in nature, and seeks to give the [trial] court the opportunity to admonish the jury, instruct counsel and forestall the accumulation of prejudice by repeating improprieties, thus avoiding the necessity of a retrial.' " (People v. Brown (2003) 31 Cal.4th 518, 553.) By failing to object at trial, defendant did not give the trial court an opportunity to address his objection and remedy any resulting prejudice.
Anticipating forfeiture, defendant alternatively claims his trial counsel was ineffective in not objecting to the prosecutor's statement. To establish ineffective assistance of counsel, defendant must prove that (1) his trial counsel's representation was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficiency resulted in prejudice to defendant. (People v. Maury (2003) 30 Cal.4th 342, 389 (Maury); Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) If defendant makes an insufficient showing on either of those components, his ineffective assistance claim fails. (People v. Holt (1997) 15 Cal.4th 619, 703; Strickland, at p. 687.)
We review trial counsel's performance with deferential scrutiny, indulging a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance and recognizing the many choices that attorneys make in handling cases and the danger of second-guessing an attorney's decisions. (Maury, supra, 30 Cal.4th at p. 389; Strickland v. Washington, supra, 466 U.S. at p. 689.) " '[T]he decision facing counsel in the midst of trial over whether to object to comments made by the prosecutor in closing argument is a highly tactical one . . .' [citation], and 'a mere failure to object to . . . argument seldom establishes counsel's incompetence' [citation]." (People v. Centeno (2014) 60 Cal.4th 659, 675 (Centeno).) On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. (People v. Mai (2013) 57 Cal.4th 986, 1009.)
The record is silent about why defendant's trial counsel did not object to the prosecutor's argument that defendant turned to a fellow gang member for help. Defendant's trial counsel was never asked to explain the omission. Counsel might have elected not to object because the prosecutor's comment was reasonably related to the credibility of defendant's testimony. Defendant said he was afraid to go to the apartment alone because he did not know who was there, he did not have a plan to kill Gonzalez, and his shotgun discharged accidentally. But the prosecutor attacked defendant's credibility, arguing that defendant asked his fellow gang member for help, they armed themselves, and they went to the apartment to "handle their business." We " ' "do not lightly infer" ' " that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements; the defendant must show a reasonable likelihood the jury understood the comments in an improper manner " '[i]n the context of the whole argument and the instructions.' " (Centeno, supra, 60 Cal.4th at p. 667.) And we accord " 'great deference to [defense trial] counsel's tactical decisions.' " (People v. Mickel (2016) 2 Cal.5th 181, 198 (Mickel).)
But even if defendant's trial counsel had rendered deficient representation, defendant must also affirmatively prove prejudice to establish ineffective assistance. (Mickel, supra, 2 Cal.5th at p. 198.) "[T]he record must demonstrate 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citation.]" (Maury, supra, 30 Cal.4th at p. 389.) Defendant must show a reasonable probability of a more favorable result. (People v. Ledesma (1987) 43 Cal.3d 171, 217-218; Strickland v. Washington, supra, 466 U.S. at pp. 693-694.)
Defendant fails to show it is reasonably probable a more favorable verdict would have resulted had his trial counsel objected to the challenged remark by the prosecutor. The evidence in support of his murder conviction is quite strong, and the trial court instructed the jury it may consider evidence of defendant's gang activity only for the purpose of evaluating the credibility of his testimony and it may not conclude from that evidence that defendant was a person of bad character or that he had a disposition to commit crime. The trial court told the jury to follow its instructions on the law, even if the attorneys' comments on the law conflicted with the trial court's instructions. Absent evidence to the contrary, and defendant does not identify any, we presume the jury followed the trial court's instructions on how to consider evidence of defendant's gang activity. (People v. Shazier (2014) 60 Cal.4th 109, 150-151; People v. Houston (2012) 54 Cal.4th 1186, 1214.)
Defendant fails to establish ineffective assistance by his trial counsel.
III
Defendant also claims the trial court violated his right to be present at a critical stage of the trial by permitting the readback of testimony in his absence and without his personal waiver.
After the jury commenced deliberations, counsel for the People and defendant stipulated, in defendant's presence, that the court reporter could read back testimony in the jury room without the presence of counsel or the trial court after counsel were advised of what the court reporter would read back to the jury. The jury requested a readback of portions of one witness's testimony. The court reporter read the testimony to the jury in the jury room, after counsel were informed of the request and responded.
A defendant has the right to the presence of counsel "at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected." (Mempa v. Rhay (1967) 389 U.S. 128, 134 ; see Cal. Const., art. I, § 15 [right to assistance of counsel].) A defendant also has the right "to be present at all [critical] stages of the trial where his absence might frustrate the fairness of the proceedings" (Faretta v. California (1975) 422 U.S. 806, 819, fn. 15 [due process right]) or " 'whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.' " (Kentucky v. Stincer (1987) 482 U.S. 730, 745 ; see Cal. Const., art. I, §§ 15, 24; People v. Horton (1995) 11 Cal.4th 1068, 1120-1121 (Horton).)
However, the California Supreme Court has repeatedly held that " '[t]he reading back of testimony ordinarily is not an event that bears a substantial relation to the defendant's opportunity to defend . . . .' [Citation]." (People v. Lucas (2014) 60 Cal.4th 153, 299, disapproved on other grounds in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19 (Lucas); see Horton, supra, 11 Cal.4th at p. 1121; People v. McCoy (2005) 133 Cal.App.4th 974, 982-983 (McCoy) [citing cases].) The United States Supreme Court has never held that a read back of testimony is a critical stage of trial. (McCoy, at p. 982.) Counsel may consent to the reading of testimony outside the defendant's presence. (People v. Pride (1992) 3 Cal.4th 195, 251 [rejecting the argument that the defendant must personally waive his right to be present at a readback].)
Defendant nevertheless urges us to follow Ninth Circuit cases holding that a defendant has a right to be personally present when testimony is read back to the jury. But those decisions are not binding on us (see, e.g., People v. Bradford (1997) 15 Cal.4th 1229, 1292), and the California Supreme Court recently reaffirmed that the rereading of testimony is not a critical stage of trial in which the defendant has a constitutional right to personal presence (People v. Covarrubias (2016) 1 Cal.5th 838, 917 [rejecting claim that defendant was entitled to be present at the readback of testimony because he did not waive right to be present at trial]; Lucas, supra, 60 Cal.4th at p. 299 [same]). As defendant concedes, we are bound to follow the decisions of the California Supreme Court. (Auto Equity Sales, supra, 57 Cal.2d at p. 455.)
In addition, although defendant bears the burden of establishing prejudice resulting from his absence (Horton, supra, 11 Cal.4th at p. 1121), he has not established how his presence during readback could have assisted his defense. (Lucas, supra, 60 Cal.4th at p. 300 [a defendant's absence during a readback of testimony does not raise due process concerns absent a showing of prejudice]; McCoy, supra, 133 Cal.App.4th at p. 983.)
His contention lacks merit.
IV
Defendant further contends the matter should be remanded to permit the trial court to exercise its discretion on whether to strike the firearm enhancement. We agree.
Senate Bill No. 620 (2017-2018 Reg. Sess.) provided that effective January 1, 2018, section 12022.53 was amended to permit the trial court to strike an enhancement for personally using a firearm. The new provision states, "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§ 12022.53, subd. (h) [Stats. 2017, ch. 682, § 2].) Prior to the amendment, an enhancement under section 12022.53 was mandatory and could not be stricken in the interests of justice. (See former § 12022.53, subd. (h) [Stats. 2010, ch. 711, § 5].) The Attorney General agrees the amendment to section 12022.53 applies retroactively to cases not final on appeal. (People v. Arredondo (2018) 21 Cal.App.5th 493, 507; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679; People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091.)
"Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing." (People v. Brown (2007) 147 Ca.App.4th 1213, 1228.) Citing People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896, the Attorney General argues remand for resentencing is unnecessary because there is no likelihood the trial court would exercise its discretion to strike the firearm enhancement allegation. We disagree.
Here, although the trial court imposed a term of 25 years to life for the murder, it made no comment clearly showing it would not have struck the firearm enhancement if it had the discretion to do so. We express no opinion as to how the trial court should exercise its new discretion on remand, we only conclude the trial court should have an opportunity to exercise its discretion in the first instance.
DISPOSITION
The matter is remanded to permit the trial court to exercise its discretion under section 12022.53, subdivision (h). The judgment is otherwise affirmed.
/S/_________
MAURO, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
RENNER, J.