Opinion
A143709
03-28-2017
THE PEOPLE, Plaintiff and Respondent, v. NATEEL SHARMA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. H54257A)
Defendant Nateel Sharma was convicted of attempted murder and assault with a firearm after he shot a friend, Nick D., during a confrontation outside Sharma's home. Sharma was sentenced to 28 years and six months to life in prison. On appeal, he claims his convictions must be reversed because his trial counsel rendered ineffective assistance by: (1) not pursuing a Batson/Wheeler motion after the prosecutor exercised peremptory challenges against two jurors who were originally from India, one of whom was also a practicing Hindu; (2) asking Nick D. a "racially charged" question on cross-examination; (3) not timely objecting to a deputy sheriff's placement next to Sharma while he testified and to an instance of alleged prosecutorial misconduct; and (4) failing to argue in closing that Sharma was guilty of attempted voluntary manslaughter based upon a sudden quarrel or heat of passion. We conclude that a sentencing error requires correction but otherwise affirm the judgment.
Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
A. The Argument at Nick D.'s House.
The shooting occurred on the evening of September 15, 2011, outside the Hayward house where Sharma, then 19 years old, lived with his parents, grandmother, and younger sister. The prosecution and defense presented markedly different versions of the events in question, supported by the testimony of several key eyewitnesses. For the prosecution, these eyewitnesses included Nick D., Luis C. (a mutual friend of Nick D.'s and Sharma's), and two of Sharma's neighbors. For the defense, they included Sharma, Sharma's father, and Angel V. (a friend of Sharma's).
Twenty-year-old Nick D. lived near Sharma. The two had known each other for several years, and Nick D. testified that they "hung out all the time," usually at Sharma's house. Nick D. agreed that he had no "ongoing dispute or beef" with Sharma. Sharma, on the other hand, testified that although their relationship had improved, Nick D. had harassed and bullied him, including by using ethnic slurs and physical force, since Sharma had moved to the neighborhood in 2001.
On the day of the shooting, Nick D. spent much of the day drinking malt liquor alone at his house. Sometime in the early evening, two other friends from the neighborhood, Luis C. and Donnie E., arrived at Nick D.'s house. Sharma arrived within the next hour. The friends were smoking marijuana and drinking and "having a good time." All told, Nick D. drank seven or eight 40-ounce bottles of malt liquor that day. He acknowledged that his memory of the ensuing events was "a little spotty" because of his level of intoxication.
Nick D. recalled that at some point the mood changed, and he and Sharma began to argue. Nick D. testified that he "owed [Sharma] a couple hundred bucks for some weed," and he said he was getting his paycheck the next day when Sharma asked for the money. Sharma testified, however, that the argument started because he owed money to Nick D. According to Sharma, Nick D. said "out of nowhere," "[Y]ou bitch ass . . . nigga. When you going to pay me my dough?"
Although he could not remember the exact words used, Nick D. testified that he and Sharma began "talking smack" to each other. Luis C., who was not drunk at the time, testified that Sharma said, " 'Gangsters stay silent. At this point I'm going to stay silent,' " and Nick D. responded, "[Y]ou are not a gangster. You're the farthest thing from a gangster." According to both Nick D. and Luis C., Sharma then yelled that he was going to shoot Nick D.
Nick D. knew Sharma had a shotgun, which the two had shot together in Sharma's backyard on a previous Fourth of July. Nick D. testified that after Sharma threatened to shoot him, he told Sharma "to go ahead," not believing that Sharma "had it in him." Sharma then "walked off" toward his own house, which was a two-minute walk away.
Sharma, on the other hand, testified that after demanding money, Nick D. picked up one of the empty 40-ounce bottles, smashed it, and pointed it at Sharma, saying, "[B]itch, I'll kill you if you don't get my money. . . . [¶] I'm going to run up in your house and get what's mine." And according to Sharma, Nick D. was the one to bring up the topic of shooting: after Sharma told Nick D. he was not coming inside Sharma's house, Nick D. responded, "You going to shoot me?"
B. The Confrontation Outside Sharma's House.
Sharma testified that after leaving Nick D.'s house, he returned to his own house, went to his bedroom, and grabbed a shotgun he claimed belonged to his cousin, who had been staying with him that week. He went into the backyard and shot the gun into the air. As he walked back to the front of the house, he saw his friend Angel V. Angel V. told him to put the gun away, which he did, and then suggested that they go to a store. The two began walking toward the store, but Sharma soon decided he wanted to drive instead, so they headed back to Sharma's house.
Meanwhile, according to Nick D., about five minutes after Sharma left three or four "[l]oud bangs" that "[s]ounded like shotgun shots" came from the direction of Sharma's house. Luis C. also heard several "[b]ig blasts" that sounded like a "shotgun going off." This prompted Nick D. to start walking toward Sharma's house, and Luis C. and Donnie E. followed him. Nick D. testified that on his way, he called Sharma and "told him to come outside" because he "wanted to fight him." Nick D. acknowledged that a match between him and Sharma would not be "a fair fight," because at the time Nick D. weighed about 300 pounds and Sharma weighed about 120 pounds.
Nick D. testified that when he arrived at Sharma's house, he "[w]ent up to his garage door and started pounding on it" with his fists, yelling at Sharma to come outside. Sharma's father also testified that he heard banging on the garage door that sounded like an attempt to force the door open and someone shouting. According to Sharma's father, Nick D. then forced his way into the house. Sharma's father testified that as he and his wife pushed Nick D. outside, Nick D. punched him and repeatedly threatened both of them. Several other witnesses present, however, denied that Nick D. went inside Sharma's house or even got close to the front door.
Sharma's father admitted that in his statement to police the night of the shooting he never mentioned Nick D.'s entering his house or assaulting him or his wife.
According to Luis C., Sharma, and Angel V., Sharma was in fact already outside when Nick D. arrived at Sharma's house. Most witnesses generally agreed that Nick D. and Sharma confronted each other in the street and threw punches at each other, that Nick D. landed at least one punch, that Sharma dropped his cell phone during the scuffle, that Nick D. picked up the phone and smashed it on the ground, and that Sharma then ran into his house. Luis C. testified that he heard Sharma say, " 'I'm going to shoot you,' " before running inside. Similarly, a neighbor who had walked over to see what was happening testified that she heard Sharma yell, " 'I'm going to get my gun.' "
After Sharma went inside, Nick D. believed the fight was over and turned to leave. The female neighbor testified that Nick D. began walking away, and she encouraged him to leave. According to Sharma's father, however, Nick D. tried to follow Sharma inside. Sharma's father testified that he continued to push Nick D. back, at which point Nick D. threw more punches at him. Sharma's father also claimed that Nick D. flicked a lighter near the lawn and kept saying, "I'm going to burn down your house." No other witness corroborated Sharma's father's testimony on these points.
Sharma testified that after he went into his house, he began "pacing back and forth in the kitchen," upset. His grandmother was at the front door, crying and yelling, "Don't hurt my son," apparently in reference to Sharma's father. Sharma testified that he "was scared for [his] father," so he grabbed his cousin's shotgun and ran back outside.
C. The Shooting.
The witnesses still present agreed that Sharma re-emerged from the house holding a shotgun and headed toward Nick D. Nick D. testified that by the time he noticed Sharma, who was now back in the street, Sharma was pointing the shotgun at Nick D., "close enough for [Nick D.] to grab it." Nick D. testified, "I got angry. [¶] . . . [¶] I grabbed the shotgun barrel and put it up to my stomach and then told him, you ain't going to shoot me; you're a bitch." Nick D. stated that he used only one hand to grab the firearm and did not pull with very much force. He testified that he then dropped his hands to his sides and told Sharma, "[Y]ou ain't going to do it." "[A] few seconds" later, Sharma shot Nick D. in the stomach, and Nick D. fell to the ground.
Angel V. left the scene after Sharma went inside.
Luis C. similarly testified that Sharma approached Nick D. and put the shotgun close to Nick D.'s stomach. Nick D. then grabbed the barrel and pulled the gun toward him, stating, " 'You ain't going to do it.' " A few seconds later, while both of Nick D.'s hands were at his sides, Luis C. saw a flash from the gun's barrel. Luis C. testified that he did not see Nick D. make any sudden movements or advance toward Sharma before the gun discharged.
The female neighbor testified that she was standing behind Nick D. when she saw Sharma run toward Nick D. and stick the shotgun in Nick D.'s stomach. She did not, however, see Nick D. pull the shotgun toward himself. Nick D. then said, " 'What, are you going to shoot me, bro?' " The female neighbor testified that a few seconds after Sharma had put the shotgun to Nick D.'s stomach, and as Nick D.'s hands were at his sides, the shotgun went off. Another neighbor who was watching from his window also saw Sharma point the gun toward Nick D.'s stomach and also did not see Nick D. make any hand movements or move toward Sharma before the shooting.
The testimony of Sharma and his father, however, suggested that the shooting was accidental. Sharma's father testified that after Sharma came back outside, he grabbed his son's arm and tried to push the shotgun's barrel up toward the sky. According to Sharma's father, Nick D. "kept saying, 'Nateel, go ahead and shoot me, motherfucker. Go ahead, shoot me,' " and forcefully pulled the barrel, which was resting on Sharma's father's shoulder, toward his stomach. Sharma's father moved out of the way "[b]ecause it was very painful to have [the] barrel . . . on [his] shoulder," at which point, as Nick D. continued to pull the gun toward himself, Sharma's father heard "a loud boom" and saw Nick D. step backward and fall to the ground. Similarly, Sharma claimed that before he could reach Nick D., Sharma's father grabbed the gun, Nick D. pulled on it, and the gun went off. Sharma testified, "I didn't mean[] that to happen. Despite . . . what we went through, I was still his friend. I didn't mean to hurt him. . . . I didn't want my father to get hurt and all I was trying to do was scare Nick."
Nick D. sustained a major gunshot wound to the stomach, causing his intestines to protrude. He eventually received several surgical operations and spent 27 days in the hospital. As a result of the shooting, he "lost the upper and the lower intestines and a section of [his] colon."
Sharma testified that after the shooting he ran inside his house, leaving the shotgun lying in the street. He told his grandmother to call 911 and ran to his backyard. He then hopped the fence and ran to another friend's house. From there, he telephoned his sister, who was staying with another cousin in San Mateo, and asked that they come get him. Sharma testified that when his sister and cousin arrived he asked his cousin to drive him to San Mateo because he wanted to visit his spiritual adviser. After the three had traveled only a few blocks, the police apprehended them.
Sharma's sister was charged with being an accessory after the fact to the attempted murder and tried as Sharma's co-defendant. She is not a party to this appeal, and we do not discuss the facts relating to her offense.
Although other witnesses saw the shotgun on Sharma's lawn after Sharma ran into his house, the weapon was never recovered. Firearms experts for both the prosecution and the defense testified that it was possible that a shotgun could accidentally discharge if a person was holding the trigger and another person pulled on the barrel.
D. The Verdict and Sentencing.
The jury convicted Sharma of one count of attempted murder and one count of assault with a firearm. It also found true the allegations that Sharma personally and intentionally discharged a firearm causing great bodily injury during the attempted murder and that he personally used a firearm and personally inflicted great bodily injury during the assault. The jury found untrue the allegation that the attempted murder was willful, deliberate, and premeditated. The trial court sentenced Sharma to a total term of 28 years and six months to life in prison, comprised of terms of three years and six months for the attempted murder and 25 years to life for the accompanying firearm enhancement. The sentence for the assault and accompanying enhancements was stayed.
Sharma was found guilty of attempted murder under Penal Code sections 187, subdivision (a) and 664, subdivision (a) and assault with a firearm under Penal Code section 245, subdivision (a)(2). All further statutory references are to the Penal Code.
These allegations were found true under sections 12022.53, subdivision (d) (personal discharge of a firearm causing great bodily injury), 12022.5, subdivision (a) (personal use of a firearm), and 12022.7, subdivision (a) (personal infliction of great bodily injury).
As discussed in section II.G. below, Sharma should have been sentenced to five, seven, or nine years in prison for the attempted murder, not three years and six months. In addition, the record contains only a determinate abstract of judgment, which also reflects the indeterminate term for the firearm enhancement under section 12022.53, subdivision (d). On remand to correct the sentencing error, the amended determinate abstract of judgment should omit the indeterminate term and an indeterminate abstract of judgment should be issued.
II.
DISCUSSION
A. General Legal Standards.
The law governing claims of ineffective assistance of counsel is well-settled. The federal and state Constitutions guarantee criminal defendants the right to adequate representation by counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; People v. Vines (2011) 51 Cal.4th 830, 875.) To prevail on a claim of ineffective assistance of counsel, a defendant must show both "that counsel's performance was deficient," such that "counsel was not functioning as the 'counsel' [constitutionally] guaranteed," and "that the deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); People v. Centeno (2014) 60 Cal.4th 659, 674.)
To establish the first Strickland prong, a defendant must show that "counsel's performance . . . fell below an objective standard of reasonableness under prevailing professional norms." (People v. Mai (2013) 57 Cal.4th 986, 1009.) In evaluating this prong, "a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." (Ibid.) " ' "Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts." ' " (People v. Stanley (2006) 39 Cal.4th 913, 954.) Because the presumption of counsel's competence can typically be rebutted only with evidence outside the record, a reversal on direct appeal is not warranted unless "(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. All other claims of ineffective assistance [of counsel] are more appropriately resolved in a habeas corpus proceeding." (Mai, at p. 1009.)
To establish the second Strickland prong, a defendant must demonstrate "resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (People v. Mai, supra, 57 Cal.4th at p. 1009.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, 466 U.S. at p. 694.) "A defendant must prove prejudice that is a ' "demonstrable reality," not simply speculation.' " (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) As "[t]he object of an ineffectiveness claim is not to grade counsel's performance," where possible it is preferable "to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice" without addressing whether counsel's performance fell below an objective standard of reasonableness. (Strickland, at p. 697.)
B. Sharma's Counsel Did Not Render Ineffective Assistance by Failing to Pursue a Meritless Batson/Wheeler Motion.
Sharma contends that his trial counsel rendered ineffective assistance by failing to procure a ruling on the defense's Batson/Wheeler motion challenging the exercise of peremptory challenges against two Indian prospective jurors, Mr. D. and Mr. P., one of whom was also a practicing Hindu. We conclude that any error was harmless because the motion would have failed, as the record does not contain evidence establishing a prima facie case of discrimination.
1. Additional facts.
The trial court and parties asked Mr. D. several questions during voir dire. In response to a question on the juror questionnaire about whether he would be able to follow an instruction not to "be influenced by any sentiment, conjecture, sympathy, passion, prejudice, public opinion[,] or public feeling," Mr. D. had stated, " 'Yes, but it would be difficult.' " Explaining this answer, Mr. D. said, "I think I can be able to do it, but I think it's going to be difficult just because of my nature; I'm emotional, kind of that I get moved easily." He promised that he could "definitely try" to disregard any sympathy he might feel for either party. Later, Mr. D. indicated that he had been moved when he heard another prospective juror talk about her experiences, and he again said that it would be "difficult" not to allow sympathy to affect his decision but promised to do his best.
Mr. D. was also questioned about whether the fact he was originally from India would affect his consideration of the case. Trial counsel for Sharma's sister asked, "[W]ould you be more inclined to critically judge [Sharma and his sister] just because you believe they are from India and they may have let you down by having been arrested?" Mr. D. said, "No. I don't think so."
During a break the following day, Mr. D. informed the trial court that he wished to share an incident he had not previously disclosed. He explained that his car had been stolen a year before and he did not press charges because of his "concern about . . . consequences down the road, not knowing much about the individuals, how long they might be locked behind bars." The court asked counsel for both parties whether they had "any questions [or] concerns" to raise, and the prosecutor asked Mr. D., "Do you promise that you'll follow the law and apply the evidence to the law in this case and not consider punishment if you are selected?" Mr. D. responded, "I will try to."
The trial court then questioned Mr. P. about his disclosure that he belonged to a Hindu temple. Mr. P. stated that he was "a Hindu by faith" and that both he and his wife regularly attended the temple. The court asked whether, given that Sharma and his sister were Hindu, Mr. P. "would favor them because you share a common religion or not[,] whether that would be an issue for you." Mr. P. responded, "I'm [a] strong believer in the Hindu religion, because all my life I've been a Hindu. Umm, so I don't know. I don't think [their] being Hindu would affect me . . . because I'm going to just follow whatever you said on the law." He also indicated to the court that he believed he could be a fair and impartial juror.
The prosecutor also questioned Mr. P. about his Hinduism. After Mr. P. agreed that he considered himself "a religious person," the prosecutor asked, "Does Hinduism, as you practice it, are there any tenets or descriptions in terms of violence or use of violence?" Mr. P. responded, "Hinduism is something which we don't harm anybody nor harm anybody and then live in peace. . . . Umm, so [to] the best of my knowledge, we don't harm anybody. We don't get into any violence [or] anything. . . . [¶] . . . I come from a family, very peaceful. My father, my sisters all live in America. We never done anything. Like, that's the practice. I don't know whether it's a current language or current policy. This is what my parents taught me, and I'm following them."
Counsel for Sharma's sister also discussed Hinduism with Mr. P. After Mr. P. agreed that he believed "Hinduism is a religion of nonviolence," counsel asked whether Hinduism "allow[ed] for self-defense," and Mr. P. stated that he did not know. Counsel also asked whether, because the defendants were Hindu, Mr. P. would "judge them more severely," and Mr. P. said, "I don't think so." Mr. P. also responded "No" when counsel asked whether he would "give them a pass just because they are Hindu."
The prosecutor exercised peremptory challenges against Mr. D. and Mr. P. No oral Batson/Wheeler motion was made at the time, but after voir dire was over for the day Sharma's trial counsel indicated that she intended to bring such a motion the next day. The trial court stated that since Mr. D. and Mr. P. had already been dismissed, there was no remedy in the sense that they could not be called back, but it was still possible "to throw out the panel" if a Batson/Wheeler violation were established. As promised, the following day trial counsel for both defendants filed a written Batson/Wheeler motion challenging the prosecutor's dismissal of Mr. D. and Mr. P. as being based on group bias against "Indian Nationals and members of the Hindu Religion."
The prosecutor also successfully challenged for cause a prospective Indian Hindu juror who disclosed that she "would favor" defendants who were also Hindu, was inclined to be sympathetic to Sharma and his sister because "Indian parents . . . [are] very protective looking after the kids," and could not "look at the evidence neutrally" given her background. Sharma does not challenge this juror's dismissal.
The next day, the jury, which included two Indian members, was sworn without any ruling on the Batson/Wheeler motion. Later that day, the trial court asked whether the defense wanted to proceed with the motion. Sharma's trial counsel said she understood the motion was now "moot" because the panel had been sworn but stated, "[F]or the record, we would have objected had the jurors not been dismissed . . . before we could file it." Counsel for Sharma's sister added that he had not objected at the time Mr. D. and Mr. P. were dismissed because he thought the court's in limine ruling requiring Batson/Wheeler objections to be made outside the presence of the jury precluded him from doing so. The court responded that the defense should have asked for a sidebar, which it would have granted, and that it had been surprised that the defense never attempted to get a ruling on the written motion before the jury was selected. Counsel for both defendants then withdrew the motion.
2. Discussion.
Sharma contends that his trial counsel rendered ineffective assistance by bringing a Batson/Wheeler motion but then "allow[ing] the panel to be sworn before having the motion heard[,] thereby making the motion moot." The Attorney General responds that there was no prima facie case of intentional discrimination, relying on the principle that "[t]he Sixth Amendment does not require counsel to raise futile motions." (People v. Solomon (2010) 49 Cal.4th 792, 843, fn. 24.) We therefore address the merits of Sharma's motion.
The Attorney General also argues that the decision by Sharma's trial counsel "to accept a jury panel and withdraw the motion was a tactical choice that cannot be rebutted on direct appeal." We have doubts about this point, given that the record indicates counsel did not understand the proper procedure for raising a Batson/Wheeler issue. We need not decide whether she may have had a tactical reason for withdrawing the motion, however, because we conclude that the motion was futile.
The federal and state Constitutions forbid the removal of prospective jurors "based on group bias, such as race or ethnicity." (People v. Blacksher (2011) 52 Cal.4th 769, 801.) Claims that the prosecution impermissibly exercised a peremptory challenge based on group bias require a three-step analysis. (People v. Duff (2014) 58 Cal.4th 527, 545.) First, the defendant must " ' make out a prima facie case "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." [Citation.] Second, once the defendant has made out a prima facie case, the "burden shifts to the State to explain adequately the . . . exclusion" by offering permissible . . . neutral justifications for the strikes. [Citations.] Third, "[i]f a . . . neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful . . . discrimination." ' " (Ibid.) Although the trial court here did not determine whether Sharma had made a prima facie showing, we may nevertheless evaluate the issue in the first instance because "we independently review the record" to determine whether "the circumstances of the case raise an inference that the prosecutor excluded a prospective juror based on race" or another cognizable ground. (People v. Harris (2013) 57 Cal.4th 804, 834.)
The Attorney General questions whether "all persons born in India are the same cognizable group" given the country's diversity of languages and religions, but we will assume without deciding that discrimination against prospective jurors on the basis of their Indian national origin or adherence to Hinduism would be unconstitutional. (See People v. Wheeler, supra, 22 Cal.3d at p. 276 [exercising peremptory challenges based solely on presumption that "certain jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds" is unconstitutional].)
"Although a prima facie showing may be made from any evidence in the record," our state Supreme Court has identified " 'certain types of evidence that will be relevant for [the] purpose' " of making a prima facie showing of discrimination. (People v. Harris, supra, 57 Cal.4th at pp. 834-835.) A defendant " 'may show that [the prosecutor] has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of . . . peremptories against the group. [The defendant] may also demonstrate that the jurors in question share only this one characteristic—their membership in the group—and that in all other respects they are as heterogeneous as the community as a whole. Next, the showing may be supplemented when appropriate by such circumstances as the failure of [the prosecutor] to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all. Lastly, . . . the defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule; yet if [the defendant] is, and especially if in addition [the] alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the court's attention.' " (Id. at p. 835.)
Sharma offers little explanation of why he believes a prima facie case of religion-based discrimination was established, primarily relying on his claim that the prosecutor asked Mr. D. and Mr. P. "so many questions involving the [tenets] of Hinduism and their personal religious beliefs." In fact, the prosecutor questioned only Mr. P. about Hinduism, and there is no evidence in the record that Mr. D. was of the same faith. In any event, the questioning of Mr. P. about Hinduism suggests the prosecutor did not have a discriminatory intent, because if he had harbored such an intent he could have simply struck Mr. P. without engaging in "more than desultory voir dire." (People v. Harris, supra, 57 Cal.4th at p. 835.) Moreover, the trial court and counsel for Sharma's sister also questioned Mr. P. about his religious beliefs, which was appropriate: although a party cannot discriminate against prospective jurors solely on the basis of their religion, exclusion of a juror "on the basis of the juror's relevant personal values is not improper even though those views may be founded in the juror's religious beliefs." (People v. Martin (1998) 64 Cal.App.4th 378, 385; accord People v. Rushing (2011) 197 Cal.App.4th 801, 812.) Here, Mr. P. made clear that he considered nonviolence a significant tenet of Hinduism. This belief was relevant to the case because Sharma, a Hindu, was accused of a violent crime, and a primary issue was whether the shooting was accidental. The prosecutor could have legitimately exercised a peremptory challenge against Mr. P. on the basis that Mr. P.'s religious beliefs inclined him to believe Sharma's explanation of the shooting.
Sharma identifies nothing in the record to suggest that national-origin discrimination motivated either Mr. D.'s or Mr. P.'s dismissal other than that both men were originally from India and Sharma himself is of Indian descent. Case law is clear that, standing alone, the fact that dismissed prospective jurors belong to the same cognizable group as the defendant does not establish a prima facie case of discrimination. (See, e.g., People v. Bonilla (2007) 41 Cal.4th 313, 342-343; People v. Turner (1994) 8 Cal.4th 137, 164, 167-168.) Moreover, two of the jurors seated were Indian, and "ultimate inclusion on the jury of members of the group allegedly targeted by discrimination indicates ' "good faith" ' in the use of peremptory challenges, and may show under all the circumstances that no Wheeler/Batson violation occurred." (People v. Garcia (2011) 52 Cal.4th 706, 747-748.)
In sum, the record as a whole fails to demonstrate a prima facie case of impermissible discrimination in the dismissal of Mr. D. and Mr. P. As a result, we reject the claim of ineffective assistance premised on Sharma's trial counsel's failure to litigate the Batson/Wheeler motion.
C. Sharma Fails to Demonstrate Prejudice Stemming from His Counsel's Cross-examination of Nick D.
Sharma claims that his trial counsel's "invitation" to Nick D. during cross-examination "to make a racial slur" was unprofessional and "badly tarnish[ed]" the jury's perception of the defense. We are not persuaded that any prejudice resulted.
Nick D. testified on direct that he might have called Sharma "bitch ass nigga" at some point when they were arguing. After Nick D. confirmed on cross-examination that he could have used this phrase, Sharma's trial counsel, who is African-American, asked, "When you look at me today, are you going to ask me if I'm a bitch as[s] nigga?" Nick D. responded, "No," and the prosecutor objected that the question was improper and argumentative. The trial court told Sharma's counsel, "That's not proper . . . . [¶] You should know better," and the prosecutor agreed, "She knows better." Counsel then resumed her cross-examination.
We need not decide whether Sharma is correct that his trial counsel's questioning of Nick D. was improper because Sharma has failed to demonstrate sufficient prejudice. Sharma contends that if his counsel "had regained her senses" after inviting Nick D. "to engage in a racial confrontation, . . . she should have asked for a recess of the proceedings and an opportunity for the Court to individually question the jurors about their ability to continue to be fair and impartial to the Defense. The Jury's reactions would probably have been highly negative toward the Defense, in which case [counsel] should have asked the Court to discharge the Jury." This argument is speculative and does not establish prejudice. (See People v. Fairbank, supra, 16 Cal.4th at p. 1241.) Moreover, Sharma does not explain why the challenged question was more likely to reflect poorly on the defense than on Nick D. himself. As the Attorney General observes, this was not an instance of counsel injecting the issue of race into the trial, because on direct Nick D. had already admitted to using the term. In any event, counsel's race was not an issue at trial. We conclude that her stray provocative question is not reasonably likely to have affected the verdict and therefore did not constitute ineffective assistance of counsel.
We also reject Sharma's suggestion that his trial counsel's failure to ask the trial court to question the jury independently constituted ineffective assistance to the extent counsel failed to make a record sufficient to evaluate prejudice. There is no evidence that such questioning would have revealed negative reactions to the defense based on counsel's use of the offending phrase.
D. Sharma's Counsel's Failure to Make Certain Objections in a Timely Manner Was Harmless.
Sharma contends that his trial counsel "made numerous fatally late objections on . . . important issues" that constituted ineffective assistance. Sharma fails to demonstrate that the requisite prejudice resulted from either instance he identifies.
1. There is no evidence of prejudice stemming from a sheriff deputy's presence while Sharma testified.
Sharma first claims that his trial counsel's failure to make a timely objection to a sheriff deputy's presence next to Sharma while he testified constituted ineffective assistance. We disagree.
Sharma testified on two separate days. After Sharma's testimony was over, his trial counsel objected to the fact that a sheriff's deputy had sat "behind [Sharma] during his testimony" for part of the second day, because the deputy's presence suggested to the jury that Sharma was a threat. Counsel did not explain why she had not raised the objection earlier, but counsel for Sharma's sister stated, "[T]he only reason why I did not object was because at the time I saw the deputy sitting there, the jury had already been assembled, and I didn't want to use that . . . time that related to get this case out of the way for a sidebar. But immediately we had a break; I informed the Court about that."
At the trial court's invitation, the bailiff explained that it was "agency policy" to have a deputy seated next to any defendant in custody. The bailiff said that his supervisor had originally allowed Sharma to testify without a deputy next to him only because of a "severe lack of staff" available that day. The trial court then determined that the objection was waived. The court explained that it had "made eye contact with [the prosecutor] and also with the defense" when it noticed the deputy sitting next to Sharma, but "[n]obody objected," and the explanation by counsel for Sharma's sister for why he did not make a contemporaneous objection was insufficient. Neither defendant's counsel requested a cautionary instruction to the jury.
Sharma argues that his trial counsel's failure to make a timely objection "deprived him of the opportunity to have the deputy immediately removed from his vicinity and to have a cautionary instruction given." In People v. Stevens (2009) 47 Cal.4th 625, a case that apparently involved the same Alameda County Sheriff's Department policy, our state Supreme Court held that the stationing of a deputy next to the defendant while he testified was not an "inherently prejudicial" security measure that needed to be justified by a "demonstration of extraordinary need." (Id. at pp. 632-634, 636.) Stevens also held, however, that a trial court "may not defer decisionmaking authority to law enforcement officers, but must exercise its own discretion to determine whether a given security measure is appropriate on a case-by-case basis." (Id. at p. 642.) The Supreme Court directed that a "trial court should state its reasons for stationing a guard at or near the witness stand and explain on the record why the need for this security measure outweighs potential prejudice to the testifying defendant" and, although the Supreme Court "impose[d] no sua sponte duty for it to do so, [a trial] court should consider, upon request, giving a cautionary instruction, either at the time of the defendant's testimony or with closing instructions, telling the jury to disregard security measures related to the defendant's custodial status." (Ibid.)
We need not decide whether the failure by Sharma's trial counsel to object or request a cautionary instruction constituted deficient performance because the record does not demonstrate a reasonable probability of a more favorable outcome had she done so. Sharma makes the general claim that the deputy's positioning posed a "substantial risk of prejudicing the jury against [him] and compromising the presumption of innocence," but he does not point to any evidence in the record suggesting that any such prejudice resulted. Rather, the circumstances here are similar to those in People v. Hernandez (2011) 51 Cal.4th 733, in which our state Supreme Court held harmless a trial court's error in not making an individualized determination of whether it was appropriate for a deputy to be stationed next to the defendant while he testified. (Id. at pp. 743, 747.)
In People v. Hernandez, supra, 51 Cal.4th 733, the Supreme Court determined that it was not reasonably probable that the defendant would have obtained a more favorable result absent the error under People v. Watson (1956) 46 Cal.2d 818, 836—a standard that is "substantially the same as the prejudice prong of Strickland" (People v. Ocegueda (2016) 247 Cal.App.4th 1393, 1407, fn. 4)—because the defendant "was monitored by a single deputy," and there was "nothing in the record suggest[ing] that this deputy's demeanor was anything other than respectful and appropriate. Besides the deputy's presence, the jury had little indication that [the] defendant was in protective custody. He wore street clothes to trial and did not enter the courtroom through a different door." (Hernandez, at p. 746.) Likewise, here there was a single deputy next to Sharma, the record reflects nothing untoward about the deputy's behavior, and Sharma wore street clothes throughout the trial. Moreover, as in Hernandez (id. at p. 747), the evidence supporting the jury's verdict was strong: several eyewitnesses corroborated Nick D.'s version of the shooting, and the testimony of the only eyewitness to corroborate Sharma's version, Sharma's father, was not credible in many respects. We conclude that Sharma has not demonstrated that his counsel's performance resulted in sufficient prejudice.
2. Counsel's failure to raise a timely claim of prosecutorial misconduct was also harmless.
Sharma also contends that his trial counsel rendered ineffective assistance by not timely objecting when the prosecutor referred to a "drug debt" as having precipitated the shooting. The prosecutor's remark did not constitute misconduct, and therefore the failure to object to it was harmless.
Before trial, the prosecution filed a motion in limine to admit evidence that Sharma and Nick D. "were co-partners involved in a marijuana grow operation based out of . . . Sharma's garage." The trial court expressed concern that the evidence would "paint Mr. Sharma as a generally bad guy . . . because he grows marijuana." The court ruled that the prosecution could not present the evidence in its case-in-chief but could do so in rebuttal if the defense opened the door.
In closing argument, the prosecutor stated, "This is not heat of passion. It's not . . . perfect self-defense. It's Nateel's pride being at stake over a drug debt." Counsel for Sharma's sister objected based on the in limine ruling and asked that the reference to a "drug debt" be stricken. The trial court granted the request to strike, saying, "Yeah. There was no evidence as to the nature of the debt." Sharma's trial counsel did not make an objection.
The following day, however, after closing arguments were over, Sharma's trial counsel took the position that the prosecutor's comment constituted prosecutorial misconduct. The trial court refused to grant any relief, finding that the issue was waived because Sharma had not timely raised it. The court also clarified that, contrary to its statement when striking the reference to a "drug debt," there had been evidence presented that the debt involved marijuana: Nick D.'s testimony that he owed Sharma "a couple hundred bucks for some weed." Finally, the court also suggested that the prosecutor's reference did not violate the in limine ruling, which covered only evidence about a marijuana grow operation, not evidence about marijuana in general.
We conclude that Sharma's trial counsel's failure to make a timely objection on the basis of prosecutorial misconduct was harmless because the prosecutor's statement was proper. As the trial court's comments made clear, the prosecutor neither referred to facts not in evidence nor violated the court's in limine ruling by mentioning a "drug debt." Sharma does not suggest any other theory under which the prosecutor's comment might have constituted misconduct. He claims that the "implication that [he] was involved in drug sales to [Nick D.] was highly prejudicial because it would lead the Jury to believe that [he] was dealing in drugs," but a prosecutor's statement does not constitute misconduct merely because it may have negatively affected the jury's perception of a defendant. Because the prosecutor's reference to a "drug debt" was proper, Sharma was not entitled to a curative jury instruction, much less a mistrial, and his trial counsel's waiver of a meritless issue did not constitute ineffective assistance. (See People v. Solomon, supra, 49 Cal.4th at p. 843, fn. 24.)
E. Sharma Fails to Establish that His Counsel Had No Rational Tactical Purpose for Not Arguing for a Verdict of Attempted Voluntary Manslaughter Based upon a Sudden Quarrel or Heat of Passion.
Sharma next claims that his trial counsel rendered ineffective assistance by failing to argue in closing that he was guilty only of attempted voluntary manslaughter based upon a sudden quarrel or heat of passion. We reject this claim because counsel could have had a rational tactical purpose in arguing only theories that would result in Sharma's acquittal.
The jury was instructed on attempted murder, attempted voluntary manslaughter based upon a sudden quarrel or heat of passion, attempted voluntary manslaughter based on imperfect self-defense, and perfect self-defense. In her closing argument, Sharma's trial counsel argued for an acquittal based on the theories that Sharma either accidentally pulled the trigger or acted in perfect self-defense or defense of his father. Counsel did not mention either type of attempted voluntary manslaughter in her remarks to the jury.
As an initial matter, we do not resolve this claim on prejudice grounds because, unlike the allegedly deficient performance underlying Sharma's other claims of ineffective assistance of counsel, it is hardly clear that counsel's failure to argue that Sharma was guilty only of attempted voluntary manslaughter based upon a sudden quarrel or heat of passion did not affect the verdict. To be guilty of that lesser included offense of attempted murder, a defendant must have "attempted to kill 'while under "the actual influence of a strong passion" ' " and " ' " 'the accused's heat of passion must be due to "sufficient provocation," ' " ' " that is, conduct that " 'would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection.' " (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1139-1140, italics omitted.) Here, there was significant evidence to support the theory that when he shot Nick D., Sharma was acting under the influence of extreme emotion, prompted by an extended argument that had turned physical. Moreover, after the jury had been deliberating for less than a day, the foreperson sent a note to the trial court stating that the jury was unable to reach a verdict on attempted murder but "all agree[d] to return a unanimous verdict on . . . attempted voluntary manslaughter" and asked whether it was necessary to first acquit Sharma of attempted murder. Although the jury did ultimately convict Sharma of attempted murder, it found untrue the allegation that the shooting was willful, deliberate, and premeditated. Under these circumstances, we are unwilling to say that counsel's failure to argue for a verdict of attempted voluntary manslaughter was harmless.
We nevertheless reject Sharma's claim because he has failed to demonstrate that his trial counsel's performance was deficient. As we have said, a claim of ineffective assistance of counsel raised in a direct appeal fails unless "(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, supra, 57 Cal.4th at p. 1009.) By focusing on the defenses of accident and self-defense and defense of another in her closing argument, Sharma's trial counsel presented an all-or-nothing choice to the jury of either acquitting Sharma or convicting him of attempted murder. Our record does not foreclose the possibility that the decision not to argue that Sharma should be convicted of attempted voluntary manslaughter based upon a sudden quarrel or heat of passion was a reasonable tactical decision. (See, e.g., People v. Samayoa (1997) 15 Cal.4th 795, 846 [rejecting ineffective-assistance claim on direct appeal where "defense counsel's all-or-nothing approach" to special circumstance allegations could have been based on a considered tactical determination]; see also People v. Barton (1995) 12 Cal.4th 186, 198 [recognizing that counsel may have tactical reasons for arguing against the giving of jury instructions on lesser included offenses].)
In arguing otherwise, Sharma focuses on his trial counsel's misunderstanding of the law as reflected in her request for a jury instruction on "attempted involuntary manslaughter." During discussion of jury instructions, Sharma's trial counsel requested a "special instruction" on "attempted involuntary manslaughter," citing as authority People v. Millbrook, supra, 222 Cal.App.4th 1122. The trial court expressed doubt that such a crime existed, and the prosecutor stated that Millbrook involved an instruction on attempted voluntary manslaughter. Sharma's counsel again insisted her requested instruction was appropriate, but the matter was never raised again, and no such instruction was given.
We agree with Sharma that his trial counsel was incorrect on the law: there is no such thing as attempted involuntary manslaughter (People v. Johnson (1996) 51 Cal.App.4th 1329, 1332), and Millbrook involved the need to instruct the jury on attempted voluntary manslaughter based upon a sudden quarrel or heat of passion. (People v. Millbrook, supra, 222 Cal.App.4th at p. 1127.) We fail to understand, however, why counsel's misunderstanding establishes that she could not have had a rational tactical purpose for failing to argue that Sharma was guilty of attempted voluntary manslaughter based upon a sudden quarrel or heat of passion. If the crime of attempted involuntary manslaughter did exist, it would theoretically be punished less harshly than attempted voluntary manslaughter. Thus, counsel's seeking of a jury instruction on the nonexistent crime is not at odds with a tactical decision to concentrate on theories that would result in little or no prison time for Sharma if the jury accepted them. Moreover, unlike attempted voluntary manslaughter, the nonexistent crime would have been consistent with Sharma's testimony that the shooting was accidental. In sum, Sharma fails to demonstrate ineffective assistance of counsel based on this record.
Voluntary manslaughter is punishable by a term of three, six, or eleven years in prison, and involuntary manslaughter is punishable by a term of two, three, or four years in prison. (§ 193, subds. (a)-(b).) The attempt of most felonies, including voluntary manslaughter, is usually punishable by "one-half the term of imprisonment prescribed upon a conviction of the offense attempted." (§ 664, subds. (a), (e).)
F. Reversal Is Not Required for Cumulative Ineffective Assistance of Counsel.
Finally, Sharma contends that even if none of his trial counsel's alleged errors was sufficiently prejudicial standing alone, their cumulative effect requires reversal. We are not persuaded.
Initially, the Attorney General "question[s] whether the cumulative error doctrine is applicable when all of the claimed errors involve alleged ineffective assistance of counsel," as "error" does not occur unless both deficient performance and prejudice are demonstrated. Courts have, however, considered claims that the cumulative impact of multiple instances of alleged ineffective assistance of counsel requires reversal. (See, e.g., People v. Gurule (2002) 28 Cal.4th 557, 662.) We are willing to assume that such a claim would be established where there was a reasonable probability of a different outcome if counsel had not made a series of unprofessional mistakes, even if no one instance of deficient performance was prejudicial enough to require reversal.
We nonetheless conclude that Sharma's claim fails. We have not identified any definite errors made by his trial counsel, and we have specifically said that her failure to argue for a conviction of attempted voluntary manslaughter could have been based on a reasonable tactical decision. To the extent counsel's performance may have been deficient on the other occasions Sharma identifies, "[e]ach . . . was harmless in itself, and on this record the whole of them did not outweigh the sum of their parts." (People v. Roberts (1992) 2 Cal.4th 271, 326.) Reversal is not required.
G. The Sentence for the Attempted Murder Must Be Corrected.
Finally, the Attorney General contends that the trial court erred by imposing a term of three years and six months for the attempted murder because "[t]he triad of possible terms for non-premeditated attempted murder is five, seven[,] and nine years." We agree, and Sharma does not argue otherwise in his reply brief.
Under section 664, subdivision (a), the punishment for most attempted felonies is "one-half the term of imprisonment prescribed upon a conviction of the offense attempted." But "[i]f the crime attempted is . . . one," other than premeditated murder, for "which the maximum sentence is life imprisonment or death, the person guilty of the attempt shall be punished by imprisonment in the state prison for five, seven, or nine years." (§ 664, subd. (a).) Except in circumstances that do not apply here, second degree murder, the offense Sharma was found guilty of attempting, has a maximum punishment of life imprisonment. (§ 190, subd. (a).) Thus, Sharma should have been sentenced to a term of five, seven, or nine years in prison for the attempted murder (plus the term of 25 years to life for the accompanying firearm-use enhancement, which the trial court correctly imposed consecutively).
We agree with the Attorney General that the sentence is unauthorized and must be corrected, even though " 'the correction results in a harsher punishment.' " (People v. Cates (2009) 170 Cal.App.4th 545, 552.) We also accept the Attorney General's suggestion that we give "the People the option of waiving a resentencing hearing and accepting the mitigated term of five years for the attempted murder charge." (See People v. Jackson (1987) 196 Cal.App.3d 380, 392-393 [adopting similar procedure to address sentencing errors].)
III.
DISPOSITION
The sentence is vacated and the matter is remanded for resentencing consistent with this opinion. Specifically, the trial court must impose a term of five, seven, or nine years for the attempted murder. If the People do not request a resentencing hearing, the judgment shall be modified to impose a term of five years for the attempted murder. In addition, the amended determinate abstract of judgment should not reflect the firearm enhancement imposed under section 12022.53, subdivision (d), and an indeterminate abstract of judgment must be issued to reflect that enhancement. The clerk of the superior court shall forward certified copies of both abstracts of judgment to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Banke, J.