Opinion
G040318
8-31-2009
THE PEOPLE, Plaintiff and Respondent, v. JONATHAN PHONG KHANH TRAN, Defendant and Appellant.
Law Office of William J. Kopeny & Associates and William J. Kopeny for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald A. Jakob and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
A jury convicted defendant Jonathan Phong Khanh Tran of first degree felony murder (Pen. Code, § 187; all further statutory references are to this code unless otherwise specified; count 1), two counts of rape (§ 261, subd. (a)(2); counts 2 and 3), and oral copulation under color of authority (§ 288a, subd. (k); count 4). It also found true defendant was armed and personally used a firearm during commission of the rapes (§§ 12022.3, subds. (a), (b), 667.61, subds. (a), (e)(4)) and had multiple victims (§ 667.61, subds. (a), (e)(5)). Defendant was sentenced to 25 years to life for the murder, consecutive 15-years-to-life terms for the rapes, and a consecutive 8 years for the oral copulation.
Defendant raises several grounds for his appeal: (1) there was insufficient evidence for felony murder; (2) instructional and evidentiary errors; (3) enhancements should not have been added to conform to proof after the conclusion of testimony; (4) his motion for new trial should have been granted; (5) ineffective assistance of counsel; and (6) resulting cumulative error. The Attorney General argues the sentences for the rapes were mandatory 25 years to life instead of the imposed 15 years to life.
We find no merit in defendants arguments. However we agree the sentences for counts 2 and 3 should have been 25 years to life. Therefore we modify the judgment to that effect.
FACTS
In December 2003 defendant stopped his truck in front of a restaurant on Harbor Boulevard where 17-year-old Reanna B. was working as a prostitute. After she got into the truck, in response to defendants inquiry, Reanna stated her fee was $100; defendant then drove to another location. When he stopped the truck Reanna attempted to get out because she had not been paid. But defendant grabbed her and pulled out a semiautomatic weapon. While pointing the gun at her, defendant demanded she take off her pants and panties and then raped her. When the rape was completed Reanna left the truck and ran away.
In January 2004, defendant picked up 19-year-old prostitute Amber R. on Harbor Boulevard. After Amber got into defendants truck, they agreed on a price of $150 for oral copulation and sex. Defendant told her he would take to a safe place. During the drive defendant asked Amber if she had ever been hurt while working as a prostitute. She said no and they joked about it.
When defendant stopped his truck in a dark cul-de-sac, he pulled a semiautomatic gun from behind the seat and said "I lied to you." "I dont want to fuck you. I just want to kill you." He ordered Amber to remove her pants, panties, and shoes and then raped her. During the 10-minute rape defendant had his gun pressed against her. Defendant then again told her, "Like I told you, I didnt want to fuck you. I just want to kill you." He demanded her money and her purse and she gave him over $120. Defendant asked if there was more money in her purse, and when she said no, he said he would kill her if he found any. After he looked through her purse and found no more money he let her dress and leave the truck.
A few days later defendant stopped his truck at the same location he had first picked up Amber. She was there and immediately recognized him, although defendant did not initially recognize her. When he did he pulled away. Within a day or so defendant again stopped his truck in front of the same restaurant on Harbor Boulevard where Reanna and her friend, 15-year-old Hannah Montessori were working as prostitutes. When Reanna approached the truck, defendant said, "No. I want the white girl." Reanna told Montessori defendant had raped her and not to go with him. Montessori said she needed the money and got into the truck.
Montessori began "chirping" with Reanna on their walkie-talkie-like phones. Soon, from what Reanna could hear, it sounded as it Montessori was afraid and struggling with defendant. The last thing she heard Montessori say was, "taking my chirp."
Defendant had driven Montessori toward a residential cul-de-sac where prostitution regularly occurred. When they were near the end of the street, Montessori jumped out of the truck, hitting her head on the pavement and skidding down the street. Within minutes she was dead. Defendant continued driving, turned around, and drove past the body.
Six months later defendant, driving an Infiniti, picked up another prostitute on Harbor Boulevard. When he stopped at an intersection, she jumped out of the car and was approached by a police officer who had seen the initial pick up. The woman was hysterical, crying, and screaming that defendant had a gun pointed at her head, demanding oral copulation. When police finally stopped defendants car they did not find a gun, although the car was not within their sight the entire time. Defendant admitted to police he was in the area to pick up a prostitute, but no charges resuled.
Fifteen months later defendant stopped his truck on Harbor Boulevard and made an arrangement with 17-year-old Martha M. to pay $100 for sex. Defendant drove her to an industrial area, parked, and began speaking in "code" into his cell phone. Defendant told Martha he was an undercover police officer, showed her a badge, and said he would not arrest her if she orally copulated him. He then spoke on his cell phone, inquiring of a "dispatcher" if Martha had any outstanding warrants. He told her everything was okay and had her orally copulate him. When the act was complete defendant told her if she revealed what had occurred she would be arrested.
The pathologist called by defendant testified the autopsy findings were consistent with Montessori being hit in the head with a single blow with something like a brick or baseball bat, driven while still upright to the location where she died, and thrown from a truck. He testified that the speed suggested by the prosecutions evidence was too slow to cause her injuries. He did agree that if the truck had been going faster, her injuries would be more consistent with the prosecutions theory about the cause of her death. Defendants girlfriend also testified he had never been violent or disrespectful to women.
DISCUSSION
1. Felony Murder Conviction
a. Sufficiency of the Evidence
The prosecution relied on attempted rape or attempted robbery or both as the underlying felony, charging defendant with the felony murder of Montessori. Defendant contends there is insufficient evidence of either attempted rape or attempted robbery. We disagree.
Felony murder is "murder . . . committed in the perpetration of, or attempt to perpetrate, . . . rape . . . [or] robbery . . . ." (§ 189.) "An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." (§ 21a.)
"Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator . . . [¶] . . . [¶] . . . [w]here it is accomplished against a persons will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another." (§ 261, subd. (a)(2).) Attempted rape requires a "specific intent to commit rape, and a direct but ineffectual act done towards its commission. [Citation.] Such act cannot be merely preparatory, and must constitute direct movement towards completion of the crime. [Citation.] However, attempted rape does not necessarily require a physical sexual assault or other sexually "`unambiguous[]" contact. [Citations.]" (People v. DePriest (2007) 42 Cal.4th 1, 48.)
"Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) The elements of attempted robbery are the intent to commit a robbery and some ineffectual act to commit it. (People v. Vizcarra (1980) 110 Cal.App.3d 858, 861.)
Where there is a claim of insufficient evidence, "we `examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1129, disapproved on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.) "Unless it is clearly shown that `on no hypothesis whatever is there sufficient substantial evidence to support the verdict the conviction will not be reversed. [Citation .]" (People v. Quintero (2006) 135 Cal.App.4th 1152, 1162.) We apply the same standard to convictions based largely on circumstantial evidence. (People v. Valdez (2004) 32 Cal.4th 73, 104; see People v. Marks (2003) 31 Cal.4th 197, 230-231 [circumstantial evidence sufficient to prove attempted robbery]; see also People v. Miller (1962) 57 Cal.2d 821, 826-827 [same for attempted rape].)
Defendant argues that, even with the evidence of the other sexual crimes in evidence, there is no evidence defendant intended to rape Montessori as opposed to committing some other sexual assault such as oral copulation.
A recent Supreme Court case, People v. Story (2009) 45 Cal.4th 1282, disposes of this argument. There the defendant was charged with felony murder based on offenses of rape and burglary. Some of the evidence used to prove the underlying crimes were four other rapes committed by defendant. The court held the "defendant is a serial rapist, and that his raping conduct began before he killed Vickers and continued afterwards. The other four sexual assaults were quite similar in a number of respects to each other and to the crime of this case. In each case, defendant entered an acquaintances home at night uninvited, and proceeded to rape, or attempt to rape, the victim. . . . [¶] This pattern of conduct `provides ample evidence for a reasonable jury to find that defendant intended to rape [the victim] when he killed her. [Citation.] `The chance that defendant acted with innocent intent with [the murder victim] is sharply reduced by evidence that he committed a forcible, nonconsensual sex act upon [a different victim] a few months earlier. [Citations.] This latter observation is all the more compelling here, where defendant committed four sexual assaults, two before and two after he killed [the victim]. . . . Accordingly, when the evidence of the other sexual assaults is considered, the evidence supporting the jurys verdict was not insufficient but extremely strong." (Id. at pp. 1297-1298.)
Defendant attempts to distinguish Story, claiming there are strong similarities among the crimes in that case as opposed to the dissimilarities in the present one. In Story, the other four crimes were all rapes (one only inferred from circumstantial evidence) in the victims homes; the victim was killed in her home after sexual intercourse occurred.
But there are substantial dissimilarities as well. Although the victim was strangled, there was no strangulation in two of the other four incidents; in one of the others the defendant used a gun and no weapon was used in the fourth. Two of the victims had had one date with the defendant; the other two had not. The crimes occurred over a period of 13 years.
The other crimes in the instant case are substantially similar. All involved prostitutes defendant picked up at or near the same location on Harbor Boulevard. He agreed to pay the women and then refused. The two crimes committed before Montessoris death were rape at gunpoint after defendant had driven the victims to a different location. They occurred only a month before Montessoris killing.
That 5 months and 20 months later defendant was demanding oral copulation from two other prostitutes does not change the result. We also reject defendants claim the similarities are insufficient because they deal with "method of operation" rather than being "felony[]specific." Under Story evidence of the first two rapes at gunpoint was sufficient for the jury to infer defendant intended to commit the same crime with Montessori. "A reasonable jury was not required to find that the one time defendant actually killed his victim was the one time he had no intent to rape. `Nothing in this case required the jury to find that [the murder victim] was an exception to this pattern . . . . [Citation.]" (People v. Story, supra, 45 Cal.4th at p. 1298.)
Defendants other distinctions of Story are also ineffective. That there was no evidence defendant assaulted Montessori, as opposed to the fact the defendant in Story had assaulted the victim, is meaningless. Here the charge was attempted rape, not rape. The claim there could have been reasons other than attempted rape that Montessori jumped from the truck is likewise unavailing. Contrary evidence or other inferences the jury could have drawn from testimony do not defeat the substantial evidence supporting the crime. (People v. Thomas (1992) 2 Cal.4th 489, 514.) It is also irrelevant that in the instant case the prosecution had two alternate underlying felonies while in Story there was only one. Finally defendants argument Story dealt primarily with the propriety of admission of similar sexual offenses under Evidence Code section 1108 is without merit. The case also stands for the proposition for which we cite it.
The attempted rape supports the felony murder conviction and thus we need not discuss the alternate attempted rape theory.
b. Jury Instruction
Because there was sufficient evidence to support felony murder, it was not error to instruct on this theory.
2. Failure to Instruct on Involuntary Manslaughter
Defendant claims the court erred by failing to instruct the jury sua sponte on a theory of involuntary manslaughter.
Involuntary manslaughter, a lesser included offense of murder, "is a killing committed `in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. [Citation.]" (People v. Prettyman (1996) 14 Cal.4th 248, 274.) "[A] court is not obligated to instruct on involuntary manslaughter in the absence of substantial evidence that the defendant killed his victim `"in the commission of an unlawful act, not amounting to [a] felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." [Citations.]" (People v. Benavides (2005) 35 Cal.4th 69, 102.)
Defendant asserts that "[h]ad the jury been given an alternative legal basis for convicting [defendant] of a lesser crime, there is . . . a reasonable probability . . . that at least one juror would not have convicted him of murder." But defendant does not point to substantial evidence on which a jury could rely to convict defendant of involuntary manslaughter. He merely argues that some act by defendant caused Montessori to be fearful, leading her to jump from the truck. Specifically, he claims "whatever was causing [her] to act frightened, it was an action of defendant." (Italics added.) But this does not satisfy the substantial evidence requirement. It is pure speculation. "[S]peculation is not evidence, less still, substantial evidence. [Citation.]" (People v. Berryman (1993) 6 Cal.4th 1048, 1081, disapproved on another ground in People v. Hill (1998) 17 Cal.4th 800, 822-823.)
At oral argument, defendant suggested the underlying misdemeanor could have been either solicitation of prostitution or misdemeanor assault. But this is still speculative. And even if there was some evidence, it is insufficient. "[T]he existence of `any evidence, no matter how weak will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is `substantial enough to merit consideration by the jury. [Citations.] `Substantial evidence in this context is `"evidence from which a jury composed of reasonable [persons] could . . . conclude[]" that the lesser offense, but not the greater, was committed. [Citations.]" (People v. Breverman (1998) 19 Cal.4th 142, 161, italics added.) There was not substantial evidence of involuntary manslaughter that would warrant an instruction, much less require it sua sponte.
3. Amendment of Information to Add Enhancement
At the end of testimony the prosecution moved to amend the information to add a firearm enhancement to count 2 (the rape of Reanna) to conform to proof. There was no argument and defense counsel did not object. After discussion about jury instructions, the court granted the motion without comment. Defendant asserts this was error based on the provisions of section 1009.
Defendant did not object at trial to the amendment and thus forfeited the right to raise the argument on appeal. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1056 [failure to object to amending information forfeits right to appeal issue].) Defendant argues that if this is the case then his lawyers failure to object constituted ineffective assistance of counsel. Without deciding that question, on the merits the claim fails.
Section 1009 provides: "The court in which an action is pending may order or permit an amendment of an indictment, accusation or information, or the filing of an amended complaint, for any defect or insufficiency, at any stage of the proceedings . . . . An indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination." Relying on Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435], Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403], United States v. Booker (2005) 543 U.S. 220 [125 S.Ct. 738, 160 L.Ed.2d 621, and Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856], defendant claims the enhancement is the equivalent of an offense and was not supported by evidence at the preliminary hearing.
None of the cited cases supports the issue before us. Further, neither party pointed to any case law directly on point and we found none. Cases on which defendant relies deal generally with due process issues in charging and proving enhancements. (E.g., Apprendi v. New Jersey, supra, 530 U.S. at p. 490 ["Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt"]; United States v. Booker, supra, 543 U.S. at p. 231 [that crime called "`sentence enhancement rather that a separate criminal act was irrelevant for constitutional purposes"].) In the context of the multiple convictions rule our state Supreme Court ruled, "By definition, an enhancement is `an additional term of imprisonment added to the base term. [Citations.] For that reason alone, an enhancement cannot be equated with an offense. [Citation.]" (People v. Izaguirre (2007) 42 Cal.4th 126, 134.)
But even if in this context an enhancement is the equivalent of a charged offense under section 1009, which we do not decide, the amendment was proper. There was sufficient evidence at the preliminary hearing that defendant used a firearm when raping Reanna. A police officer testified at the preliminary hearing Reanna told him defendant had used a gun.
Defendant relies on the prosecutors statement at the conclusion of the preliminary hearing that there was insufficient evidence a firearm was used and his statement to the judge that the prosecution was not seeking a gun enhancement on count 2 charging the rape of Reanna. But that was merely the prosecutors belief at the time. It does not negate the existence of the evidence. Moreover, defendant has not shown his defense would have been any different and thus has not been prejudiced.
4. Testimony As to Lineup
Although Reanna identified defendant at trial, during the investigation when presented with a six-pack photo lineup she could not positively identify him but instead could only point to two men, including defendant, as having features similar to the one who attacked her. On cross-examination defense counsel asked the officer if he had conducted a live lineup in addition to a photo lineup; he had not. Counsel also asked some follow-up questions about Reannas difficulty in positively identifying defendant from the photo lineup.
On redirect the prosecutor asked why the officer had not conducted a live lineup. "Did you feel there was no need to do that? Had you done any other investigation on this case?" The officer explained he never had done a live lineup but always relied on photo lineups in conjunction with corroborative evidence. Over defendants objection the officer explained there were additional reasons as well why he did not conduct a live lineup, because defendant had been "positive[ly]" identified by other witnesses. The prosecutor then asked, "So you didnt feel it was particularly relevant since [Reanna] had narrowed it to two, since she wasnt the only victim to do a live — or photographic lineup?" After the officer agreed, the court immediately instructed the jury that the testimony had been admitted for a limited purpose, not the truth but only that the officer did not do a live lineup. The jury was told not to consider the testimony for its truth. On recross, defense counsel elicited that Amber had not made a positive identification of defendant in the photo lineup; she had only stated she thought it was him but his hair was different.
Defendant argues the questions establishing the officer had not done a live lineup because he believed there was no need were leading and argumentative and "designed to suggest the answer . . . that [the officers] investigation convinced him the defendant was guilty . . . ." Defendant also asserts this allowed the officer to present an expert opinion that the identification of defendant from the photo lineup was correct and that defendant had been correctly identified. We are not persuaded.
As the court stated in overruling defendants objection, defendants question whether the officer had conducted a live lineup opened the door to questions about why he had not. Defendants question did raise an inference that the officers investigation was incomplete and the prosecution was allowed to rebut it. (People v. Matthews (1980) 108 Cal.App.3d 793, 795.) Nor can the officers testimony be categorized as an opinion. Rather, the officer explained how he had conducted his investigation. More importantly, the witnesses identified defendant in court. These brief statements by the officer, in light of the other evidence, were not particularly significant. Finally, the court gave a limiting instruction right after the testimony was elicited and gave another shortly after that. Admission of the statements was not erroneous.
5. Ineffective Assistance of Counsel
a. Introduction
Defendant raises several grounds to support his claim of ineffective assistance of counsel. He also claims his motion for new trial based on ineffective assistance was denied in error. Defendant has not satisfied his burden to show ineffective assistance of counsel. For that reason, there was no error in denying the motion for new trial on that ground.
The standard for determining ineffective assistance of counsel is well settled. To prevail, a defendant must show that, viewing it objectively, counsels performance fell below prevailing professional standards and was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687-694 [104 S.Ct. 2052, 80 L.Ed.2d 674].) To prove prejudice, defendant must demonstrate there is a "`reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different." (People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) "`"`A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citations.]" [Citations.] [Citation.]" (People v. Weaver (2001) 26 Cal.4th 876, 925.)
We give deference to findings of fact based on substantial evidence. (In re Andrews (2002) 28 Cal.4th 1234, 1250.) "On questions of mixed law and fact or of a purely legal nature, however, we reach our conclusions on the basis of an independent review of the record and the law. [Citation.] Both any deficiency in counsels performance and any prejudice occasioned thereby are mixed questions of law and fact. [Citation.]" (People v. Mayfield (1993) 5 Cal.4th 142, 199.)
"`"[I]f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," the claim [of ineffective assistance of counsel] on appeal must be rejected. [Citations.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding. [Citations.]" (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Here, while acknowledging an ineffective assistance of counsel claim ordinarily must be raised collaterally, defendant asserts the record reveals there is no reasonable explanation for any of the alleged deficiencies.
b. No Prejudice
"`[A] court need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. [Citation.]" (People v. Cox (1991) 53 Cal.3d 618, 656, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see also In re Alvernaz (1992) 2 Cal.4th 924, 945 ["`If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed"].) Several of the claimed errors by counsel did not prejudice defendant.
1) Test of Shell Casing
Police found a shell casing in defendants truck. Defendant criticizes trial counsel for failing to follow up on a request to test it to determine whether it came from a handgun or the rifle found in defendants bedroom. He argues the prosecution was able to argue the presence of the shell casing corroborated the testimony of the victims that defendant threatened them with a gun. Posttrial testing showed the shell casing came from the rifle. Had this information been known prior to trial the shell casing would not have been relevant and not admitted. Instead the prosecution was able to "create the impression" the shell casing came from a handgun.
But failure to test was not prejudicial. The prosecution did not need the shell casing to prove defendant used a gun. More than one victim testified he did and that was sufficient. Moreover, defense counsel argued the shell casing was from the rifle, and the prosecution was unable to rebut that argument.
In a related argument defendant claims that the possibility the shell casing was from a handgun eliminated his ability to argue the gun about which the victims testified was only a toy, thereby defeating the gun enhancement under section 12022.53. But arguing the gun was a toy would not necessarily have eliminated the enhancement. In People v. Monjaras (2008) 164 Cal.App.4th 1432, the court held "[c]ircumstantial evidence alone is sufficient to support a finding that an object used by a robber was a firearm. [Citations.]" (Id. at p. 1436.) "[T]he victims inability to say conclusively that the gun was real and not a toy does not create a reasonable doubt, as a matter of law, that the gun was a firearm. [Citation.]" (Id. at pp. 1437-1438, fn. omitted.)
Further, it was a reasonable tactic not to have the shell casing tested. Had testing shown the bullet was from a handgun, counsel could not have argued it came from the rifle and it would have strengthened the prosecutions case that defendant did use a gun. That it may not have been a tactic every lawyer would have used is not the test. "`[W]e accord great deference to counsels tactical decisions [citation], and we have explained that `courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight [citation]. `Tactical errors are generally not deemed reversible, and counsels decisionmaking must be evaluated in the context of the available facts. [Citation.]" (People v. Weaver, supra, 26 Cal.4th at pp. 925-926.)
2) DNA Test of Montessoris Cell Phone
Defendant also criticizes counsels failure to test Montessoris cell phone for DNA, claiming there was no reason not to test. A subsequent test showed none of defendants DNA on the phone. Defendant claims had this evidence been introduced at trial he could have argued he never touched the phone, thereby defeating the felony-murder claim based on robbery.
Again, defendant has not shown prejudice. First, the absence of DNA does not show defendant did not attempt to take the phone, grabbing Montessoris arm or wrist in the process. Further, as discussed above, the felony-murder count was proven by attempted rape and defeat of the attempted robbery charge would not have mattered.
3) Failure to Move to Exclude Inadmissible Testimony
Defendant claims counsel should have moved to exclude his statement to police that he was on Harbor Boulevard to pick up prostitutes because it was made during a custodial interrogation and he was not read his Miranda (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]) rights. We do not reverse for a violation of Miranda where admission of the evidence was harmless beyond a reasonable doubt. (People v. Bradford (2008) 169 Cal.App.4th 843, 854.) Such is the case here. There was plenty of other evidence defendant was soliciting prostitutes. As to this woman, a police officer observed the solicitation. Further, defendants conduct in picking up prostitutes as shown by the testimony of the various victims was ample evidence, even without defendants statement.
4) Girlfriends Testimony About Advice Not to Speak to Police
When defendants girlfriend was cross-examined, she testified she did not talk to police based on advice by defendants counsel to both her and defendant not to do so. Defendant claims this would constitute the introduction of evidence defendant had exercised his Fifth Amendment privilege not to testify, in violation of Griffin v. California (1965) 380 U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106] (improper comment on a defendants failure to testify) and Doyle v. Ohio (1976) 426 U.S. 610 [96 S.Ct. 2240, 49 L.Ed.2d 91] (postarrest silence), and that counsel erred by not seeking a mistrial or at least a jury admonishment.
The court found this testimony was a passing comment, and the record confirms this, and thus harmless. In People v. Turner (2004) 34 Cal.4th 406 in opening statement the prosecutor commented "`we did not have access to testimony from the defendants." (Id. at p. 420, italics omitted.) The court held failure to object was not ineffective assistance of counsel because there was no prejudice: "The reference was brief and mild and did not suggest that the jury should draw an inference of guilt from defendants failure to testify." (Ibid.) So, too, here.
5) Defendants Expert
In an effort to defeat the felony-murder charge, the defense put on an expert pathologist who testified that Montessori could have been intentionally killed by being hit with an object such as a brick and then thrown into the street after she was dead. Defendant charges the expert was not retained until two days before he testified, did not hear the testimony of the prosecutions pathologist and was not provided with all relevant documents, thus giving the prosecution the opportunity to argue he was not being truthful. He also points out that the court decided to give a jury instruction about premeditated murder based on the testimony of defendants expert.
Here, again, there was no prejudice. Defendant was not convicted of premeditated murder. Moreover, in light of the evidence, it is not reasonably probable that there would have been a different result absent the testimony or the prosecutions comments about it.
c. No Errors
In addition, as discussed below most of the claimed inadequate representation did not fall below professional standards.
1) Failure to Object
Defendant claims counsel erred by failing to object to admission of or move to exclude the shell casing, claiming it was irrelevant, speculative, or inadmissible as prejudicial under Evidence Code section 352. But the shell casing was relevant as tending to prove defendant had a firearm in his truck. The fact that subsequent testing showed it came from a rifle does not change this. We do not evaluate counsels performance in hindsight. (People v. Weaver, supra, 26 Cal.4th at pp. 925-926.)
Defendant also contends counsel should have objected to Reannas testimony describing her telephone conversation with Montessori after she got into defendants truck. To talk on the "chirp" walkie-talkie-like phone, a button needs to be held down; when it is not, nothing can be heard. When Montessori was in defendants truck Reanna was talking to her but the conversation kept "breaking up, like [Montessori] kept pushing the button . . . ." "So it was as if she was fighting." When the prosecutor asked how Montessori sounded, Reanna responded, "She wasnt calm. She was frightened. She was scared. You can tell . . . something was happening." When the prosecutor asked her to describe Montessoris voice, Reanna testified, "She was like fighting . . . with him." "[T]he last three words I heard from [Montessori were] `taking my chirp."
Defendant argues this testimony was speculative, conclusory, and inadmissible lay opinion. But "a witness may testify about objective behavior [the sound of Montessoris voice] and describe behavior as being consistent with a state of mind." (People v. Chatman (2006) 38 Cal.4th 344, 397.) An objection would have been overruled.
Defendant also attacks the statements that Montessori was fighting and "taking my chirp," claiming they improperly and prejudicially supported the attempted robbery count. As discussed above, the felony-murder count could be sustained on attempted rape and thus, even if inadmissible, the statements were not prejudicial.
2) Failure to Move to Exclude Inadmissible Testimony
The unnamed prostitute who got out of defendants car told a police officer defendant had pointed a gun at her head demanding oral sex. Defendant claims his lawyer should have moved to exclude this. During a pretrial hearing defense counsel stated he wanted the statement to come in because the evidence was the police found no gun and this would discredit claims of other victims that defendant had a gun. This would be in conjunction with testimony of a police officer that prostitutes commonly make these types of claims to avoid being arrested. This was clearly a reasonable tactical decision, despite defendants argument that counsel should have known it would not be helpful.
We also reject defendants claim counsel should have objected to the testimony as "propensity" evidence inadmissible under Evidence Code section 1101, subdivision (a). The victims spontaneous statement (Evid. Code, § 1240) was not evidence of a character trait.
During the investigation, defendant was detained on a "pretext stop" because the truck he was using had paper license plates. When the officer asked him why he had no metal plates, defendant said he did not have them because the car had been repossessed a year prior. After defendant gave the officer permission to search his truck, the officer then found the official license plates under the seat. On showing them to defendant and asking why they were not on the truck defendant said "he was going to sell th[e] truck." Defendant argues counsel should have moved to exclude these statements because no Miranda warning was given. However there is no evidence defendant was in custody and no warning was necessary. (People v. Farnam (2002) 28 Cal.4th 107, 180 [inquiries during temporary detention not subject to Miranda].)
3) Felony-Murder Jury Instruction
Defendant claims counsel erred by not objecting to the felony-murder jury instruction. As explained above, there was sufficient evidence of felony murder; thus an instruction on it was proper.
d. Miscellaneous Arguments
Defendant emphasizes that in analyzing an ineffective assistance of counsel claim we should look to the cumulative effect of the claimed errors. Because we have determined there were either no errors or no prejudice, there was no cumulative error.
As to any other claimed errors in defendants briefs that are sprinkled throughout, they are forfeited because they do not have separate headings or subheadings describing the argument (Cal. Rules of Court, rule 8.204(a)(1)(B)) and are not supported by sufficient argument or reasoned legal authority or both (People v. Stanley (1995) 10 Cal.4th 764, 793).
e. Motion for New Trial
Pointing to the substantive claims of ineffective assistance of counsel, defendant argues the trial court erroneously denied his motion for new trial made on that basis. His argument is not detailed or lengthy and seems to rely primarily on a declaration and testimony from an expert who had the opinion trial counsel had fallen below the applicable professional standards, thereby causing prejudice to defendant.
The trial court reviewed the declaration, as well as the other portions of the motion, and heard the experts testimony, and, after ruling on each individual ground raised in the motion, specifically found counsels performance met the prevailing standard. Based on our conclusions as to the ineffective assistance of counsel claims we concur. The court did not err in denying the motion.
6. Cumulative Error
Because there were no individual errors, there is no cumulative error.
7. Sentencing Error
The Attorney General argues that the 15-years-to-life sentences for the two rape counts were unauthorized under section 667.61. This argument may be raised for the first time in respondents brief. (In re Renfrow (2008) 164 Cal.App.4th 1251, 1256 [Attorney General may raise issue of unauthorized sentence in the defendants appeal].)
Section 667.61 mandates that a defendant convicted of any of the specified crimes in subdivision (c) or "two or more of the circumstances specified in subdivision (e)" shall be sentenced to a term of 25 years to life. (§ 667.61, subd. (a).) The crimes include forcible rape (§§ 261, subd. (a)(2), 667.61, subd. (c)(1)) and the circumstances include personal use of a firearm (§§ 667.61, subd (e)(4), 12022.3, subdivision (b)) and committing rape against more than one victim (§ 667.61, subd. (e)(5)). Defendant was convicted of two counts of rape with findings that he personally used a firearm in each. Thus, the provisions of section 667.61 mandate a 25 years-to-life sentence for counts 2 and 3.
Defendant does not put up a serious objection to this argument, merely asserting the judge was aware of the convictions and enhancements when he imposed the sentence and that he believes the sentence was lawful. This does not suffice to affirm the 15-years-to-life sentences on those counts. We may set aside an unauthorized sentence so a proper sentence may be imposed, even if the new sentence is harsher. (In re Renfrow, supra, 164 Cal.App.4th at p. 1256 see also People v. Serrato (1973) 9 Cal.3d 753, 764, disapproved on another ground in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.) Thus the judgment must be modified so the sentence for count 2 and count 3 is 25 years to life, to run consecutively (§ 667.61, subd. (i)).
DISPOSITION
The judgment is modified to show that for count 2 and count 3 defendant is sentenced to 25 years to life, to run consecutively. Except as modified the judgment is affirmed. The clerk of the court is directed to prepare an amended abstract of judgment reflecting the new sentence and forward a certified copy to the Department of Corrections and Rehabilitation.
WE CONCUR:
SILLS, P. J.
BEDSWORTH, J.