Opinion
F075015
10-30-2019
THE PEOPLE, Plaintiff and Respondent, v. ERIK NUNEZ, Defendant and Appellant.
Anne V. Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Paul E. O'Connor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF161233A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge. Anne V. Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Paul E. O'Connor, Deputy Attorneys General, for Plaintiff and Respondent.
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Erik Nunez and two codefendants were arrested following a string of five separate robberies occurring over a two-week period. A jury held him responsible for only the last robbery. On appeal he argues four issues: (1) the robberies were not properly tried together; (2) his Sixth Amendment rights were violated; (3) the cumulative trial errors require reversal; and (4) conditional remand is appropriate for a limited resentencing hearing. We find merit in the fourth issue but otherwise affirm the judgment.
BACKGROUND
Trial Evidence
The first robbery occurred on Steinbeck Way. That night, two women were chatting in the street when a silver four-door Toyota Tundra pickup truck aggressively approached them. Two men, one with a gun, exited the pickup and demanded their purses at gunpoint.
The robbers took each woman's purse and then fled in the pickup. Because the robbers wore masks, neither woman could identify them.
The next robbery occurred on Monarch Palm Avenue about two weeks later. On this night, a husband and his wife returned home and parked their car in the garage. At the same time, the robbers parked their silver or gray pickup outside the garage. One robber was armed with a weapon that buzzed and created "sparks." The masked robbers entered the garage and demanded property.
After taking the wife's purse, the robbers fled in the pickup. Because the robbers wore masks, neither husband nor wife could identify them.
The next robbery occurred about thirty minutes later on California Poppy Drive. Again, a husband and wife had just returned home and parked their cars. A masked robber armed with an "electric gun" entered the garage and told the husband to lie down. The second masked robber approached the wife outside the garage.
After taking the wife's wallet, the robbers fled. Because the robbers wore masks, neither husband nor wife could identify them.
The fourth robbery occurred two nights later on Windriver Drive. A man had just parked his car and was walking to his front door when a masked robber armed with a gun told him to lie down. The robber demanded the man's wallet. A second person was seen standing about 20 feet away.
Eventually, the robbers left with the man's phone. Because the robber was masked, the man could not identify him.
The final robbery occurred two nights later on Pearl Ridge Drive. That night, a woman and her three minor children had just parked her car in their garage. Before she exited the car, a masked robber with a gun entered the garage and tried to open her door. Unable to open the door, he smashed the window with the gun, stole her phone and purse, and fled. She entered her house and called 911.
Meanwhile, local police officers had identified a suspect vehicle (a silver or gray 2007 Toyota Tundra pickup) for these robberies. On the evening the Pearl Ridge robbery occurred, multiple officers were actively surveilling the suspect pickup. As the victim called 911, an officer conducting surveillance in the same neighborhood saw the suspect pickup run through a stop sign near the victim's house. That officer responded to the victim's home while other officers followed the pickup.
A lengthy pursuit ensued while the Toyota Tundra fled at over 90 miles per hour on the freeway until it stopped on the other side of the city at a house on East Belle Terrace. The driver, codefendant Montes, was arrested near the Tundra in front of the house. The victim's phone and purse, which now contained a gun, were found in the residence's backyard. That backyard shares a common fence with another residence on Smith Street.
Codefendant Leiva was discovered hiding in a trash can at that Smith Street residence. Further down Smith Street, Nunez was located riding a bicycle. After his arrest, Nunez asked to retrieve property from the Toyota Tundra. Nunez's palm print was later found on the pickup's hood. And an Uzi brand "stun gun" inside the truck matched an empty Uzi box Nunez possessed elsewhere. Hours later, Leiva wrote a letter apologizing to unnamed victims for stealing their property.
That same night, the Pearl Ridge victim was transported to East Belle Terrace to identify the robber. She identified an abandoned long sleeve striped shirt found next to the Tundra's passenger side, as the same shirt the robber was wearing. And upon seeing Nunez, she became hysterical and identified his "body type" as "exactly the same" as the robber's, but acknowledged he was wearing different clothing.
A woman well acquainted with Nunez testified he was wearing a long sleeve shirt when she last saw him the night he was arrested. She believed Nunez owned a shirt similar to the robber's.
Verdicts and Sentence
The jury found Nunez guilty only of the Pearl Ridge robbery. He was acquitted of both the first robbery on Steinbeck Way, and the attempted robbery in concert of the husband on California Poppy Drive. The judge acquitted him of the robbery on Windriver Drive. The jury could not reach a verdict on all remaining charges.
Nunez was sentenced to serve 21 years eight months in prison, calculated as follows: the nine-year upper term for robbery in concert (Pen. Code, § 213, subd. (a)(1)), enhanced by ten years for personally using a firearm (§ 12022.53, subd. (b)), plus a consecutive 16 months for endangering children (§ 273a, subd. (a)), enhanced by 16 months for personally using a firearm (§ 12022.5, subd. (a)). Punishment for the remaining convictions was stayed.
Undesignated statutory references are to the Penal Code.
The full convictions follow: (1) Robbery in concert (§ 213, subd. (a)(1)(a)) plus firearm enhancement (§ 12022.53, subd. (b)); (2) First degree burglary (§ 460, subd. (a)) plus person present finding (§ 667.5, subd. (c)(21)) and firearm enhancement (§ 12022.53, subd. (b)); (3) Assault with a firearm (§ 245, subd. (a)(2)); (4) Carrying a firearm in public while masked (§ 25300); (5) Child endangerment (§ 273a, subd. (a)) plus firearm enhancement (§ 12022.5, subd. (a)); and (6) Carrying a loaded firearm (§ 25850, subd. (a)).
DISCUSSION
Nunez first argues the court improperly joined all robbery charges into a single case. He next argues that the admission of codefendant Leiva's letter violated his Sixth Amendment right to confrontation because it incriminated him by inference and Leiva did not testify. He also contends these cumulative errors require reversal. Finally, he asks this court to remand his case for a conditional resentencing hearing to allow the judge to consider striking the firearm enhancements. As we will explain, we reject the first three contentions but will conditionally remand for resentencing regarding the firearm enhancements.
I. The Complaint Was Properly Amended
Initially, Nunez was charged only with the final robbery on Pearl Ridge. Prior to the preliminary hearing, the People moved to amend the complaint to include four additional and separate robberies that occurred on separate days the same month. The motion was granted over Nunez's objection. Nunez never moved to sever the charges.
Nunez now argues the motion was improperly granted and the resulting joined charges denied him due process because the trial was "grossly unfair." The People argue Nunez forfeited the issue and there was no error. We find Nunez properly preserved the issue for appeal, the court properly granted the motion to amend, and the resulting trial was not "grossly unfair."
A. Forfeiture
The People argue Nunez forfeited the issue by not moving to sever the charges. But Nunez is not appealing a motion to sever. Nunez appeals the motion to amend the complaint. Because he objected to that motion, the issue is properly preserved.
Joinder and severance are related but distinct issues. Joinder refers to whether charges are properly tried together. Severance refers to whether, notwithstanding joinder, the court "may in its discretion order" separate trials for different charges. (People v. Merriman (2014) 60 Cal.4th 1, 37 (Merriman); § 954.)
B. The Motion was Properly Granted
A criminal complaint may be amended to include "separate counts" which "might properly have been joined in the original complaint." (§ 1009.) "Section 954 provides that 'two or more different offenses' may be charged in the same pleading if the offenses are either 'connected together in their commission' or 'of the same class.' " (People v. Armstrong (2016) 1 Cal.5th 432, 455; § 954.) " 'Offenses of the same class are offenses which possess common characteristics or attributes.' " (People v. Landry (2016) 2 Cal.5th 52, 76.)
" 'Offenses "committed at different times and places against different victims are nevertheless 'connected together in their commission' when they are ... linked by a ' "common element of substantial importance." ' " ' " (People v. Anderson (2018) 5 Cal.5th 372, 388 (Anderson).) "Whether offenses properly are joined pursuant to section 954 is a question of law and is subject to independent review on appeal ...." (People v. Cunningham (2001) 25 Cal.4th 926, 984.)
Even when charges are properly joined prior to trial, trial proceedings on the joined charges may ultimately result in "gross unfairness" and deny a defendant his constitutional rights to "fair trial or due process of law." (Merriman, supra, 60 Cal.4th at p. 46.)
Nunez argues the offenses were not connected together and, alternatively, the resulting trial was grossly unfair. For the reasons that follow, the offenses were connected together, the offenses were also of the same class, and the trial was not grossly unfair.
1. The Offenses were Connected Together and of the Same Class
In arguing against joinder, Nunez claims the various offenses were not connected together in their commission. In so arguing, he ignores half the statute. Joinder is appropriate where either the offenses are " 'connected together in their commission,' " or are " 'of the same class.' " (People v. Soper (2009) 45 Cal.4th 759, 771 (Soper); § 954.) The charges in this case satisfy both tests.
In Anderson, supra, the California Supreme Court held two separate residential burglaries and a third offense involving murder, robbery, and burglary were properly joined because a " ' " 'common element of substantial importance' " ' " connected the crimes " ' " 'together in their commission.' " ' " (Anderson, supra, 5 Cal.5th at p. 388.) This was true, despite each offense occurring " ' "at different times and places against different victims," ' " because " 'all involved the intent to illegally obtain property.' " (Ibid.)
Here, each offense was charged primarily as a robbery. " '[A]ll involved the intent to illegally obtain property,' which constitutes a common element of substantial importance that makes joinder proper." (Anderson, supra, 5 Cal.5th at p. 388; see People v. Mendoza (2000) 24 Cal.4th 130, 160 [intent to steal " ' "runs like a single thread through the various offenses" ' "].) This includes the child endangerment charge because the children were endangered during the use of force or fear necessary to "illegally obtain property."
Moreover, the main charge for each offense was exactly the same: robbery. "Identical" charges are necessarily " 'of the same class.' " (Soper, supra, 45 Cal.4th at p. 771.) The remaining charges for each offense were either alternative theories for theft or attendant crimes related to weapons, force or fear, and flight, i.e., the instruments "to illegally obtain property." For these reasons, each offense was properly joined with all others and the court did not err in granting the motion to amend.
True, all charges were not "of the same class." For example, the Pearl Ridge robbery included a resisting, delaying, or obstructing a peace officer charge. These are not the same class of crimes because they share no "common characteristics or attributes." But they are still "connected together in their commission" because the resisting was motivated by a desire to flee and avoid prosecution. (See People v. Valdez (2004) 32 Cal.4th 73, 119 [murder and escape properly joined because connected together by motive "to avoid prosecution."].)
2. No Gross Unfairness
As noted, we must also determine " 'whether events after the court's ruling demonstrate that joinder actually resulted in "gross unfairness" amounting to a denial of defendant's constitutional right to fair trial or due process of law.' " (People v. Simon (2016) 1 Cal.5th 98, 129 (Simon).) To sustain his gross unfairness claim, Nunez bears a "high burden" (Soper, supra, 45 Cal.4th at p. 783) to establish a "reasonable probability" (Merriman, supra, 60 Cal.4th at p. 49) joinder influenced the jury's verdicts.
To establish gross unfairness, Nunez argues two points. First, the People improperly argued to the jury the common plan in each robbery proved identity because the evidence was not cross-admissible on that issue. Second, the Pearl Ridge robbery was joined with weaker cases to increase the likelihood of conviction. We reject both arguments.
Because Nunez raises no other arguments to prove "gross unfairness," we only address the two points he raises. We note these arguments are grafted from factors governing severance analysis. (See Anderson, supra, 5 Cal.5th at p. 389 [four main severance factors: (1) "whether evidence of the crimes to be jointly tried is cross-admissible; (2) whether some charges are unusually likely to inflame the jury against the defendant; (3) whether a weak case has been joined with a stronger case so that the spillover effect of aggregate evidence might alter the outcome of some or all of the charges; and (4) whether any charge carries the death penalty or the joinder of charges converts the matter into a capital case."].)
a. The Evidence Was Cross-Admissible
Nunez argues the evidence was not cross-admissible to prove identity because the offenses were not sufficiently similar to raise an inference the same person committed all the offenses. We believe the evidence was sufficiently similar to infer identity because it established a common plan.
"To establish the existence of a common plan or scheme, 'the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.' " (People v. Avila (2006) 38 Cal.4th 491, 586.) The evidence in this case revealed a common plan even though the plan was not " 'distinctive or unusual.' "
In People v. Capistrano (2014) 59 Cal.4th 830, the court found the following evidence to be cross-admissible to prove common plan and identity. There, three home invasion robberies were found sufficiently similar to prove common plan and identity because in each "a victim's car was taken," the robberies occurred "within the same geographical area" over a one-month period, in two cases the victims "were initially approached in their garages as they returned home," the robbers "covered their faces with ski masks," and "asked similar questions of the victims." (Id. at p. 849.) We find no significant difference between the plan found to be sufficiently similar in Capistrano and the evidence in this case.
Here, all offenses occurred in the same city over a two-week period. Each one involved a nighttime robbery in a residential area. Each one involved similar demands for property accompanied by force, fear, and a weapon. Each one involved multiple robbers. In each incident, the robbers concealed their faces and stole a purse or wallet. Four robberies occurred just as the victims arrived home. Victims in three of the incidents identified a similar pickup. Although not " 'distinctive or unusual,' " the evidence was nonetheless cross-admissible to prove identity.
b. There Was No "Spillover" Effect
Nunez next argues prejudice arose from combining "weak cases." "The core prejudice concern arising in connection with this issue is that jurors may aggregate evidence and convict on weak charges that might not merit conviction in separate trials. [Citation.] This concern is especially pronounced when evidence of a lesser but inflammatory incident might be used to bolster a weak prosecution case as to another incident." (Simon, supra, 1 Cal.5th at p. 127.)
We first observe the evidence to prove each offense was not particularly strong. Identity was the clear issue at trial. The Pearl Ridge offense was the "strongest" case because it contained the only evidence resembling a suspect identification. But "[a] mere imbalance in the evidence ... [does] not indicate a risk of prejudicial 'spillover effect ....' " (Soper, supra, 45 Cal.4th at p. 781.)
We next observe each offense was equally provocative. Each offense involved a weapon, some involved physical violence, one involved children, another involved elders, but all involved vulnerable and unsuspecting victims violated in their sanctuaries. No juror would reasonably feel any single offense was more outrageous or inflammatory than another.
Finally, the verdicts indicate the jury properly considered each incident distinctly. Even if we assume the People improperly argued the evidence because it was not cross-admissible to prove common plan and identity, the verdicts belie any notion of prejudice. Had the jury believed the evidence and arguments proved identity in each case, they would have convicted Nunez for all five incidents. They did not. By convicting Nunez for only one incident, the jury demonstrated it was "able to ... compartmentalize the evidence," rather than aggregate prejudice indicating an " 'improper spillover effect.' " (Soper, supra, 45 Cal.4th at p. 784.)
In sum, because the evidence was cross-admissible and there was no "spillover" effect, the trial was not grossly unfair. The evidence for each offense was simple and distinct. "Appellate courts have found ' "no prejudicial effect from joinder when the evidence of each crime is simple and distinct ...." ' " (Soper, supra, 45 Cal.4th at p. 784.) This case is not the exception. II. The Aranda/Bruton Error Is Not Reversible
Joint trials involving multiple codefendants often present constitutional questions. This trial was no different. Before and throughout the trial, the prosecution and the defendants wrestled over the Sixth Amendment and its application to introducing testimonial statements from one defendant where introducing these statements would incriminate another defendant. Ultimately, the prosecution offered only one codefendant's written confession into evidence.
Nunez now challenges that written confession because it attributed guilt to "a bad crowd" and "bad influences." His attorney did not object to the confession's introduction in evidence. We must decide whether this evidence violated the Sixth Amendment and, if so, whether Nunez's attorney was ineffective for failing to object or request a limiting instruction. For the reasons that follow, we find the letter's introduction violated Nunez's right to confrontation, but his attorney's failure to object was not prejudicial error requiring reversal.
A. Confrontation Clause Violation
All persons are guaranteed the right to confront the witnesses against them. Each is also guaranteed the right not to testify. What happens at a joint trial where one defendant has confessed that he and one or more other defendants committed the crimes but chooses not to testify? What if the confession, instead of by explicit name, incriminates by inference? More pointedly, did the references to "a bad crowd" and "bad influences" violate Nunez's right to confrontation?
This constitutional puzzle has several pieces. Putting the pieces together correctly requires an understanding of four related cases.
The seminal case is Bruton v. United States (1968) 391 U.S. 123 (Bruton). In Bruton, the prosecution introduced into evidence one defendant's confession directly implicating the other codefendant's guilt. The jury was instructed to not consider the confession as evidence against the non-confessor. (Id. at pp. 124-125.) The Supreme Court reversed the conviction because these circumstances present a "substantial risk that [juries], despite instructions to the contrary, look[] to the incriminating extrajudicial statements" in determining a non-confessing defendant's guilt. (Id. at p. 125.)
In California, this constitutional principle is commonly referred to as Aranda/Bruton because our state Supreme Court reached a similar conclusion three years prior to Bruton. (People v. Aranda (1965) 63 Cal.2d 518.)
Nearly twenty years later, the competing interests between judicial economy and the Sixth Amendment's confrontation clause led the Supreme Court to limit Bruton in Richardson v. Marsh (1987) 481 U.S. 200 (Richardson). There, the prosecution introduced a redacted confession which eliminated all reference not only to the non-confessor's name but also to her existence. (Id. at p. 203.) Because the confession did not expressly incriminate the non-confessor, the Supreme Court held a jury could obey a proper limiting instruction. (Id. at p. 208.) In other words, a redacted confession that eliminates all reference to the non-confessor's identity and existence does not violate the Sixth Amendment if the jury is instructed to disregard the confession in determining the non-confessor's guilt. (Id. at p. 211.)
Justice Scalia candidly stated "[t]he rule that juries are presumed to follow their instructions is a pragmatic one, rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation of the interests of the state and the defendant in the criminal justice process." (Id. at p. 211.)
Richardson specifically left unanswered the constitutionality of simply deleting or replacing the non-confessor's name with a symbol or neutral pronoun. (Richardson, supra, 481 U.S. at p. 211, fn. 5.) The United States Supreme Court answered the question's first part in Gray v. Maryland (1998) 523 U.S. 185 (Gray). In Gray, the prosecution edited a confession and introduced it into evidence. When the testifying witness read the confession into evidence, he replaced the non-confessor's name with "deleted." The written confession, also introduced into evidence, replaced the name with blank spaces. (Id. at pp. 188-189.)
The Supreme Court concluded this redacting procedure violated the Sixth Amendment. (Gray, supra, 523 U.S. at p. 197.) Writing for the court, Justice Breyer explained as follows:
"Consider a simplified but typical example, a confession that reads 'I, Bob Smith, along with Sam Jones, robbed the bank.' To replace the words 'Sam Jones' with an obvious blank will not likely fool anyone. A juror somewhat familiar with criminal law would know immediately that the blank, in the phrase 'I, Bob Smith, along with , robbed the bank,' refers to defendant Jones. A juror who does not know the law and who therefore wonders to whom the blank might refer need only lift his eyes to Jones, sitting at counsel table, to find what will seem the obvious answer, at least if the juror hears the judge's instruction not to consider the confession as evidence against Jones, for that instruction will provide an obvious reason for the blank. A more sophisticated juror, wondering if the blank refers to someone else, might also wonder how, if it did, the prosecutor could argue the confession is reliable, for the prosecutor, after all, has been arguing that Jones, not someone else, helped Smith commit the crime.This approach to redacting statements violates the Sixth Amendment for two specific reasons. First, it does not eliminate reference to a coparticipant's existence. Second, it highlights to the jury the confession explicitly named another person, i.e., the other person on trial. But Gray's holding was specifically limited to the redacting procedure at issue. So what about the other question left unanswered by Richardson?
"For another thing, the obvious deletion may well call the jurors' attention specially to the removed name. By encouraging the jury to speculate about the reference, the redaction may overemphasize the importance of the confession's accusation—once the jurors work out the reference. That is why Judge Learned Hand, many years ago, wrote in a similar instance that blacking out the name of a codefendant not only 'would have been futile.... [T]here could not have been the slightest doubt as to whose names had been blacked out,' but 'even if there had been, that blacking out itself would have not only laid the doubt, but underscored the answer.' " (Id. at pp. 193-194.)
Our state Supreme Court answered that question in People v. Fletcher (1996) 13 Cal.4th 451 (Fletcher). There, a confession referred to "a friend" participating in the crime. The California Supreme Court held the constitutionality of confessions referring to neutral pronouns "must be determined on a case-by-case basis in light of the other evidence that has been or is likely to be presented at the trial." (Id. at p. 456.) The court explained:
"In such cases, where any reasonable juror must inevitably perceive that the defendant on trial is the person designated by pronoun or neutral term in the codefendant's confession, an assumption that a limiting instruction could 'be successful in dissuading the jury from entering onto the path of inference' [citation] would be little short of absurd. On the other hand, there are instances in which replacing a nondeclarant defendant's name with a symbol or neutral pronoun will be effective in protecting the nondeclarant's rights under the confrontation clause. For example, a confession that is redacted to substitute pronouns or similar neutral and nonidentifying terms for the name of a codefendant will be sufficient if the codefendant was just one of a large group of individuals, any one of whom could equally well have been the coparticipant mentioned in the confession." (Id. at p. 466.)
With this background in mind, we apply the Fletcher case-by-case analysis for two reasons. First, unlike the confession in Richardson, Leiva's letter did not eliminate all reference to coparticipants. Second, unlike in Gray, the letter incriminates not with explicit names but with neutral pronouns. Applying Fletcher leads us to conclude codefendant Leiva's letter violated the Sixth Amendment in this case.
This approach is consistent with Justice Breyer's suggestion in Gray to edit that confession from "[m]e, deleted, deleted, and a few other guys," to "[m]e and a few other guys." (Gray, supra, 523 U.S. at pp. 196-197.) Although the United States Supreme Court has never decided that suggestion's constitutionality, we believe Fletcher, decided three years before Gray, correctly balances the interests and provides the proper analysis.
From beginning to end, the prosecutor's theory was that each defendant participated in all five separate robberies. The theory was Montes drove, Leiva was the lookout, and Nunez robbed. This was consistent with the evidence at trial regarding the Pearl Ridge robbery: Montes was identified as driving, Nunez was identified as the robber, and when Leiva was found hiding in between them, he blamed "a bad crowd" and "bad influences" for his crimes.
Montes was not charged for the Windriver robbery.
In turn, Nunez's association with Leiva and Montes was without question. Nunez placed himself in the getaway pickup and he possessed elsewhere an empty box matching the "stun gun" make and model found in the pickup. His palm print further linked him to the pickup. He was arrested in the same neighborhood as Leiva and Montes at the end of a citywide vehicle pursuit.
All three defendants sat side by side for several days as the prosecutor painted the picture each was guilty for robbing in concert on multiple occasions. Under these circumstances, no reasonable juror could obey a jury instruction to avoid drawing the inference that Montes and Nunez were the "bad crowd" and "bad influences" upon whom Leiva sought to deflect blame. Because Leiva did not testify, the unredacted letter violated Nunez's right to confrontation.
Although we believe an instruction in these circumstances "would be little short of absurd," the absence of any limiting instruction compounded the error. (Fletcher, supra, 13 Cal.4th at p. 466.)
B. Ineffective Assistance Of Counsel
Having determined the confession violated Nunez's Sixth Amendment right to confrontation, we must next determine whether Nunez's counsel was ineffective by failing to object to the evidence.
The Sixth Amendment guarantees the " 'right to the effective assistance of counsel.' " (Strickland v. Washington (1984) 466 U.S. 668, 685-686 (Strickland).) " '[T]o establish a claim of ineffective assistance of counsel, [Nunez] bears the burden of demonstrating, first, that counsel's performance was deficient because it "fell below an objective standard of reasonableness [¶] ... under prevailing professional norms." [Citations.] Unless a defendant establishes the contrary, we shall presume that "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." [Citation.] If the record "sheds no light on why counsel acted or failed to act in the manner challenged," an appellate claim of ineffective assistance of counsel must be rejected "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." [Citations.] If a defendant meets the burden of establishing that counsel's performance was deficient, he or she also must show that counsel's deficiencies resulted in prejudice, that is, a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." ' " (People v. Bell (2019) 7 Cal.5th 70, 125 (Bell).)
As we will explain, Nunez's counsel's failure to object to the admission of Leiva's confession letter "fell below an objective standard of reasonableness." But we also conclude there is no " 'reasonable probability ... the result of the [trial] would have been different' " had he objected. (Bell, supra, 7 Cal.5th at p. 125.)
1. Nunez's Counsel's Failure To Object Was Unreasonable
Prior to trial, all counsel argued, conferred with each other, and conferred with the court regarding various statements implicating Aranda/Bruton issues. Nunez's attorney successfully argued that specific statements that incriminated by inference violated Nunez's confrontation rights. His counsel even moved to sever the trials between each defendant.
The court reserved ruling, but never ruled on, the motion to sever.
During the trial, the prosecutor introduced minimal statements from each defendant (each in compliance with the court's rulings), including the confession letter at issue. No counsel objected to the letter's admissibility. Moments later, a lengthy sidebar ensued after Leiva's counsel asked if Leiva was crying when writing the letter. During the sidebar, all counsel and the court revisited the Aranda/Bruton issues. Nunez's attorney felt the question regarding crying would essentially waive the confrontation clause and allow the prosecutor to introduce any statement. He never argued the letter incriminated by inference. After reviewing the record, we find his failure to object inexplicable.
The "record sheds no light on why counsel" failed to object to the letter. Counsel had previously successfully convinced the court to redact inferentially incriminating statements pursuant to Aranda/Bruton. Surely, after rigorously debating the Aranda/Bruton issues before and during trial, including at the moment the letter was introduced, counsel was aware the letter inferentially incriminated Nunez. Under these circumstances, we believe the record, at some point, would reveal whether this was a "matter of sound trial strategy." But it does not.
On cross-examination after the letter's introduction, counsel asked a single question unrelated to the letter. During closing argument, counsel never referred to the letter. In fact, it was the prosecutor who argued the letter proved three individuals were involved. On this record, " ' "there simply could be no satisfactory explanation" ' " for failing to object. (Bell, supra, 7 Cal.5th at p. 125.) Nunez has met " 'the burden of establishing that counsel's performance was deficient.' " (Ibid.)
"How are you doing today?"
2. The Letter's Admission Did Not Reasonably Alter the Outcome
Nunez must next establish a " ' "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." ' " (Bell, supra, 7 Cal.5th at p. 125.) We do not believe Nunez can satisfy the standard.
The prosecutor's theory at trial was that each defendant committed each robbery together. The theory was Montes drove, Leiva kept watch, and Nunez robbed. The evidence for this theory was weak for each robbery except for the Pearl Ridge robbery. Not surprisingly, that incident resulted in the only convictions.
Ample evidence supported the theory. Nunez placed himself in the getaway pickup when asking for his hat and phone. His palm print was found on the pickup. He was arrested while in flight from the area where the pursuit ended. He was arrested near his codefendants and the stolen property. The victim identified Nunez as the robber by "body type."
Hats and phones were found in the pickup, but no evidence identified the specific owners.
A woman testified Nunez owned a shirt similar to the robber's striped, long-sleeve shirt. She added that he was wearing a long-sleeve shirt when she last saw him (as opposed to the short sleeve shirt he was wearing when arrested several hours later). The robber's shirt was found on the ground next to the getaway pickup. Nunez also elsewhere possessed an empty box matching the "stun gun" found in the pickup.
In sum, the letter's references to "a bad crowd" and "bad influences" added little to the calculus. We find no " ' "reasonable probability ... the result of the [trial] would have been different" ' " had the letter been excluded entirely or the specific references redacted. We reject Nunez's claim his counsel was constitutionally ineffective.
We analyzed this claim under the Strickland reasonable probability standard because the claim properly proceeded under ineffective assistance of counsel analysis. Generally, " ' " '[c]onfrontation clause violations are subject to federal harmless [beyond a reasonable doubt] error analysis under Chapman v. California (1967) 386 U.S. 18, 24.' " ' " (Capistrano, supra, 59 Cal.4th at p. 873.) For the same reasons we rejected the ineffective assistance of counsel claim, we find the letter's admission harmless beyond a reasonable doubt.
III. There Was No Cumulative Error
Nunez next asserts the errors cumulatively denied him a fair trial. "Under the 'cumulative error' doctrine, we reverse the judgment if there is a 'reasonable possibility' that the jury would have reached a result more favorable to defendant absent a combination of errors." (People v. Poletti (2015) 240 Cal.App.4th 1191, 1216.)
Our review revealed only one error and we previously analyzed it under a similar "more favorable" result standard. For the reasons above, the lone error did not deprive Nunez of his right to a fair trial.
IV. Conditional Remand Is Appropriate Under Senate Bill No. 620
Nunez believes newly granted discretion to trial courts to strike firearm enhancements applies to his case because it is not yet final on appeal. The Attorney General concedes its application to his case. We agree and believe the case merits a conditional resentencing hearing.
Senate Bill No. 620 empowers trial courts to strike the firearm enhancements relevant to this case. (People v. Woods (2018) 19 Cal.App.5th 1080, 1090 (Woods).) The bill "necessarily reflects a legislative determination that the previous bar on striking firearm enhancements was too severe, and that trial courts should instead have the power to strike those enhancements in the interest of justice." (Id. at p. 1091.) It applies retroactively to all cases not yet final on appeal, "which includes this case." (Ibid.)
This case aptly illustrates why "the previous bar on striking firearm enhancements was too severe." (Woods, supra, 19 Cal.App.5th at p. 1090.) After the People concluded examining their final witness at trial, codefendants Leiva and Montes settled their cases. Montes, the getaway driver and equally culpable for the Pearl Ridge robbery, admitted committing the robbery and bargained for "no more than four years" in prison. Leiva, the lookout and equally culpable for the Pearl Ridge robbery, admitted to committing the robbery and received probation despite having recently served a prison term. Nunez was then offered eight years in prison but ultimately did not settle.
Later, at sentencing, the court reviewed the probation report and followed the recommended sentence. Neither party argued the sentence. The report revealed three statutory factors in aggravation and none in mitigation, despite elsewhere conceding Nunez's criminal record was minimal (his lone criminal conviction was for driving on a suspended license). Although not a statutory factor, the court noted Nunez was youthful.
California Rules of Court, rule 4.408 allows a trial judge to consider any "additional criteria reasonably related to the decision," regardless of the standard circumstances in aggravation and mitigation. Other factors in mitigation might include Nunez's status as a father to three minor children, the overall length of the sentence considering recent ameliorative sentencing laws and credit limitations, the fact he has never served a prison term, the fact he has no prior felony convictions, the effect prison would have on his prospects, the effect a lengthy term would have on his family and minor children, or any other circumstance the parties or court could articulate.
Nunez was then sentenced to serve 21 years eight months in prison with a 15 percent credit limitation. The crimes themselves comprised less than half the sentence: Ten years and four months. The firearm enhancements of 11 years and four months more than doubled the sentence. But the court had no occasion to consider whether striking one or both firearm enhancements was appropriate "in the interest of justice." (§ 12022.53, subd. (h).) We believe this case merits a conditional remand to consider the arguments.
DISPOSITION
We conditionally remand this case to the trial court to consider whether striking either or both firearm enhancements is appropriate. In all other respects, the judgment is affirmed.
/s/_________
SNAUFFER, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
SMITH, J.