P. v. Deanda CA4/2

Filed 4/3/13 P. v. Deanda CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E053911

v. (Super.Ct.No. SWF024615)

JOSE ALBERTO DEANDA, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Dennis A. McConaghy,

Judge. Affirmed.

Janice M. Lagerlof, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Lilia E. Garcia, Lynne McGinnis

and Felicity Ann Senoski, Deputy Attorneys General, for Plaintiff and Respondent.

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 A jury convicted defendant and appellant Jose Alberto Deanda of shooting at an

inhabited house (count 1—Pen. Code, § 246)1 and found true an attached gang

enhancement (§ 186.22, subd. (b)). The trial court sentenced defendant to the mandatory,

statutory term of imprisonment of 15 years to life.

On appeal, defendant contends the trial court prejudicially erred in declining to

reopen the case to permit continued cross-examination of Hemet Police Officer Takaski

Nishida, in declining to give defendant’s proffered instruction on Officer Nishida’s

testimony, and in failing to give a sua sponte jury instruction on corroboration of an

accomplice witness’s testimony. Defendant additionally contends the People committed

prejudicial prosecutorial misconduct during their closing and rebuttal argument by

vouching for Officer Nishida, defense counsel below rendered infective assistance of

counsel (IAC) in failing to object to the prosecutor’s purported misconduct, and in failing

to request a limiting instruction on the use of the gang evidence adduced at trial. Finally,

defendant maintains the cumulative effect of the alleged errors deprived him of a fair trial

and due process. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

On January 31, 2008, defendant, whom Victoria Rodriguez knew as “Casper,”

came to her home at 7:30 to 8:00 p.m., with at least two persons whom she had never met

1 All further statutory references are to the Penal Code unless otherwise indicated.

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before; defendant referred to them as “Spooks” and “Happy.”2 The monikers were

suggestive of gang membership to Rodriguez. Defendant discussed how he had gotten

into a physical altercation earlier with two men over a woman; defendant was angry and

upset. Defendant and the others were talking about getting even with the individual with

whom defendant had fought. Rodriguez saw defendant with a black handgun.

Defendant asked Rodriguez to give him, Spooks, and Happy a ride; she drove

them in her white Suburban to a house off of Florida Avenue. Defendant brought the gun

with him. At some point, Rodriguez heard the men say they intended to shoot a home in

retribution for the earlier fight. They requested that Rodriguez turn off the vehicle’s

lights and park down the street from the home that was their intended target.

Defendant exited the vehicle with the gun; he was wearing a white vest under a

black hooded sweatshirt with long sleeves. Happy exited with him. Rodriguez sat in the

vehicle with the engine running and the lights off. Defendant and Happy walked toward

the house.

Less than five minutes later, Rodriguez heard several gunshots. Defendant and

Happy ran back to her vehicle. Rodriguez heard defendant say something to the effect of,

“I got ‘em.” She immediately drove off quickly toward Florida Avenue.

Defendant took off the vest and threw it in the back of the vehicle. He also handed

the gun to someone. Rodriguez saw several police cars pass her; a couple of them made

2 At trial, “Happy” was identified as codefendant Bryce Goldade; “Spooks” was
identified as codefendant Agustin Ramirez.

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U-turns, followed her, and put on their lights. One of the men asked her to put the gun in

her purse; she refused.

Rodriguez pulled over; she exited the vehicle at the command of the police

officers. The officers pulled the others from the vehicle. Rodriguez gave the officers

permission to search her vehicle.

Rodriguez was arrested and charged with firing at an inhabited home. She entered

into an agreement with the People in which she would testify truthfully in exchange for a

one-year jail term and six years’ probation.

Mayra, a resident of the home, testified that on January 31, 2008, she was in the

bathroom when she heard multiple gunshots fired in rapid succession. She heard one of

the bullets hit the front door. Mayra called 911.

Mayra’s mother Carlota also resided in the home. On January 31, 2008, she was

in her bedroom when she heard five or six gunshots; at least one of the shots hit the

house. Carlota looked out her bedroom window and saw a person dressed all in black

trying to get into the open door of a moving “big white car.” Three other residents of the

home, who were in the backyard at the time of the shooting, left the property to follow

the vehicle.

The People played a recording of the 911 call placed by Mayra. Mayra reported

someone had shot at the home four to six times and left in a white SUV towards Florida

Avenue. In less than five minutes, while Mayra was still on the phone with the 911

dispatcher, she was told the police had already stopped the vehicle.

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 Around 10:00 p.m. on the date in question, Officer Ryan Hollenweger of the

Hemet Police Department was responding to a call about the shooting; he saw a vehicle

matching the description of the suspect vehicle on Florida Avenue. The vehicle was

approximately two to three miles from the address where the shooting occurred; it was

driving in the opposite direction of that address. Officer Hollenweger executed a U-turn

and conducted a traffic stop.

Officer Hollenweger waited for other officers to arrive before having each of the

occupants exit the vehicle separately. A young woman exited the driver’s seat, defendant

exited the front passenger seat, and two other men came out the back. Rodriguez gave

permission to search the vehicle. It had three rows of seats; in the middle row officers

found a white bulletproof vest. A loaded Ruger nine-millimeter handgun was found on

the third row of seats; it had one cartridge chambered and two additional rounds in the

magazine.

Hemet Police Officer Brett Riley also responded to the scene. He found six, nine-

millimeter shell casings near the gate of the home. He also found a bullet hole in the

screen on the front door and several bullet fragments, which had hit a car that had been

parked at the residence.

Officer Nishida took gunshot residue swabs of all the occupants of the vehicle. He

testified Goldade and Ramirez were admitted members of the 18th Street Gang. Based

on defendant’s tattoos, belt buckle, moniker, self-classification when booked, association

with other gang members, and association that night with two other 18th Street Gang

members, Officer Nishida opined defendant was a member of the 18th Street Gang on the

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date of the offense. The residence where the shooting occurred was known for drug and

gang activity on behalf of La Raza Corolla, a rival of the 18th Street Gang. Based on a

hypothetical matching of the facts of the instant case, Officer Nishida opined the offense

was committed in association with and for the benefit of the 18th Street Gang.

A senior criminalist with the Los Angeles County Coroner’s Officer testified the

gunshot residue samples brought to her from defendant were consistent with someone

who had discharged a firearm. Tests of the samples obtained from the other three

occupants of the vehicle found no gunshot residue.

DISCUSSION

A. TRIAL COURT’S REFUSAL TO GIVE DEFENDANT’S PROPOSED

PINPOINT INSTRUCTION.

Officer Nishida testified a search of defendant’s jail cell revealed a table with

graffiti etchings, indicative of the 18th Street Gang. However, on cross-examination,

Officer Nishida admitted he was mistaken about whose jail cell the etchings were found

in; they were actually found in Goldade’s jail cell. Nonetheless, defense counsel

continued to cross-examine Officer Nishida about the nature of his error. Officer Nishida

then appears to have vacillated as to whether he was sure the pictures were of defendant’s

jail cell or another individual’s jail cell. Defense counsel eventually requested a recess so

Officer Nishida could review other materials in order that he might make a definitive

determination as to whose jail cell the graffiti was found in. The court acceded to

defense counsel’s request.

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 During the recess, Officer Nishida reviewed the CD on which the photographs of

the jail cell were recorded. He then testified the etchings were found in defendant’s jail

cell. Defense counsel then requested that someone take photographs of the respective

individuals’ jail cells so a dispositive determination could be made. The court agreed to

order a photographer to do so.

Meanwhile, on redirect Officer Nishida testified that even assuming the etchings

had been found in another individual’s jail cell, it would neither change his opinion that

defendant was a member of the 18th Street Gang nor that the offense was gang

motivated. Later, the court encountered a potential 10-day delay in obtaining approval

for the jail cells to be photographed. The court suggested they have the jury visit the jail

cells. Defense counsel suggested, “[m]aybe we can arrive at a stipulation.” Throughout

the ordeal, the court appeared extraordinarily open and accommodating as to any

proposed method of dealing with the perceived problem.

Defense counsel eventually requested a jury instruction effectively conveying it

“could reasonably conclude that [Officer Nishida] either deliberately lied or acted in

reckless disregard to the truth.” Defendant’s proposed instruction read, “You have heard

evidence from [Officer] Nishida, a witness concerning the nature of gangs. If you believe

[Officer] Nishida deliberately lied about some things, you may disregard all of his

testimony. Also, if you believe [Officer] Nishida acted in reckless disregard of the truth

of any issue involved in forming his opinion, or while offering his testimony, you may

also disregard all of his testimony.”

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 The court responded, “As far as this jury instruction goes, I sat here and listened to

the evidence. And a person would have to be so jaded to say that that was—assuming for

a moment that the officer was wrong—to stretch that and say reckless disregard for the

truth is an absolute fabrication in and of itself. There was no reckless disregard for the

truth, including the whole process of going and looking at the photographs. And for that

reason I am going to reject this instruction.”

It was eventually determined by the People that Officer Nishida had made a

mistake; the pictures of the jail cell with the 18th Street Gang etchings did not belong to

defendant; rather, they belonged to Goldade. The court suggested the new photographs

of the respective jail cells, with indications as to whom they belonged, be admitted into

evidence. The parties agreed.

The court indicated it would introduce a stipulation to the jury with respect to the

photographs and Officer Nishida’s testimony, but would not accept one that included the

phrase “reckless disregard for the truth.” After negotiations between the parties, the final

stipulation, as presented to the jury, read as follows: “It is stipulated by the People and

the defense that [Officer] Nishida was incorrect in his statement that the photographed

desk with gang related etchings were located in the defendant’s jail cell. It was located in

[Goldade’s] jail cell.” “From the time the defendant was arrested until after the cell

searches were conducted, the defendant did not have access to [Goldade’s] cell.”

“‘“[A] defendant has a right to an instruction that pinpoints the theory of the

defense . . . .”’ [Citation.] The court, however, ‘may properly refuse an instruction

offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or

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potentially confusing [citation], or if it is not supported by substantial evidence

[citation].”’ [Citation.]” (People v. Bivert (2011) 52 Cal.4th 96, 120.)

Defendant’s proposed instruction was unduly argumentative because it effectively

told the jury the evidence indicated or tended to prove Officer Nishida lied or acted in

reckless disregard of the truth. It is improper for an instruction to indicate an opinion

favorable to a defendant regarding the effect of the evidence. (People v. Hartsch (2010)

49 Cal.4th 472, 504.) Similarly, substantial evidence failed to support the instruction

because nothing in the record indicated Officer Nishida did anything other than make a

mistake as to whom the jail cell belonged. Indeed, if defense counsel, during his cross-

examination, had simply left matters after Officer Nishida admitted the pictures of the jail

cell did not belong to defendant, he would have thoroughly and successfully impeached

Officer Nishida on the matter. It was defense counsel’s tactical decision to continue to

press the matter until Officer Nishida decided he needed to take another look at the

photographs in order to make a dispositive determination. Only then did he reverse

himself again, which led to the instant issue.

Moreover, the instruction was duplicative in that it effectively covered ground

already dealt with in instructions given by the court. (CALCRIM Nos. 105 [jury sole

judge of credibility of witnesses]; 226 [same]; 332 [credibility of expert witness to be

judged by jury by factors including its reasonability and support in the evidence].) Thus,

the court acted within its discretion in declining to give defendant’s proffered instruction.

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 B. PROSECUTORIAL MISCONDUCT

Defendant contends the People engaged in prosecutorial misconduct by vouching

for Officer Nishida in its statements during closing and rebuttal argument that Officer

Nishida merely made a mistake in ascribing the pictures of the 18th Street Gang graffiti

to defendant’s jail cell. Defendant acknowledges his failure to object would normally

forfeit the argument on appeal, but contends defense counsel’s failure to object amounted

to constitutionally IAC. We address the merits of the issue, to forestall the IAC claim,

and find it lacking.

During the People’s closing argument, the prosecutor argued: “[Officer] Nishida,

he was wrong. He made a mistake. He was incorrect in his testimony, that that desk with

the etchings was in that defendant’s jail cell. It was actually in . . . Goldade’s cell.” He

further claimed, “We talked about during jury selection that officers are humans. They

make mistakes. He went upstairs to review those photos. Based upon what he reviewed

upstairs, he felt certain that the writing on that desk came from the defendant’s jail cell.

He was incorrect.”

Defense counsel spent the majority of his closing argument maintaining Officer

Nishida’s incorrect testimony regarding the derivation of the photographs of the jail cell

undermined the totality of his testimony, including his conclusions that defendant was a

member of that gang and that the crime was committed for a gang related purpose. In

sum, the defense argued: “I’m not saying he’s deliberately lying to stick it to

[defendant]. I can’t say that. I don’t know what is in [Officer] Nishida’s mind. But what

I think is reasonable to infer, what I think is the truth, is that he’s willing to say what he

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needed to say to get a conviction. And he’s willing to say things are true, and to say that

he’s certain that [they] are true, when they’re not. They’re not true.”

In the People’s rebuttal, the prosecutor argued: “[Defense counsel] wants you to

think that because [Officer] Nishida made one mistake in his testimony, all of a sudden

you have reasonable doubt, and that [defendant] should walk away free.” The prosecutor

noted that on cross-examination, Officer Nishida admitted he was wrong, but defense

counsel continued to press the issue. At defense counsel’s urging, Officer Nishida took a

break so that he could further review the files he had with him at court. Only after that

review did he conclude the pictures were of defendant’s jail cell, because the CD with

those pictures was labeled with defendant’s name. “Based on that, based on what he

reviewed, in that sense he felt certain that he was initially correct, and that was

[defendant’s] cell. [¶] He didn’t get up here and try to stretch the truth, try to lie. In fact,

he was honest.”

“Improper comments by a prosecutor require reversal of a resulting conviction

when those comments so infect a trial with unfairness that they create a denial of due

process. [Citations.] Conduct by a prosecutor that does not reach that level nevertheless

constitutes misconduct under state law, but only if it involves the use of deceptive or

reprehensible methods to persuade the court or jury. [Citation.] In order to preserve such

claims for appellate review, as a general matter the defendant must object below and

request an admonition, if an admonition would have cured the harm caused by the

misconduct. [Citation.]” (People v. Watkins (2012) 55 Cal.4th 999, 1031.)

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 “‘A prosecutor may make “assurances regarding the apparent honesty or reliability

of” a witness “based on the ‘facts of [the] record and the inferences reasonably drawn

therefrom.’” [Citation.] But a “prosecutor is prohibited from vouching for the credibility

of witnesses or otherwise bolstering the veracity of their testimony by referring to

evidence outside the record.” [Citation.]’ [Citation.]” (People v. Redd (2010) 48 Cal.4th

691, 740.)

As noted above, defense counsel failed to object to the allegedly offending

remarks; thus, defendant forfeited the issue on appeal. Nevertheless, addressing the

merits, we hold the People committed no misconduct. Here, the prosecutor, in effectively

stating Officer Nishida did nothing more than make an honest mistake, simply restated

the facts adduced by the evidence and inferences reasonably drawn therefrom. Officer

Nishida initially testified the photographs were from defendant’s jail cell. When

questioned on cross-examination with regard to his report, which reflected the

photographs were taken from Goldade’s jail cell, Officer Nishida testified he had been

mistaken; the photographs were not from defendant’s jail cell.

Only after a recess taken at defense counsel’s insistence, during which Officer

Nishida reviewed the materials he had, did he again testify the photographs were taken of

defendant’s jail cell, because they were contained on a CD marked with defendant’s

name. Thus, the prosecutor’s passing remarks were based on the record, particularly as

they were virtually identical to the contents of the stipulation read to the jury. The

prosecutor did not propose that everything to which Officer Nishida testified was true,

but merely asked the jury not to disregard the entirely of his testimony on his one

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admitted error. Therefore, the People used no reprehensible or deceptive methods,

committed no prosecutorial misconduct, and certainly no prejudicial misconduct resulting

in a deprival of defendant’s right to due process.3

C. CALCRIM NO. 335: ACCOMPLICE INSTRUCTION

Defendant contends the court committed prejudicial error in failing to sua sponte

instruct the jury with CALCRIM No. 335, the accomplice witness instruction. Although

we hold the court erred in failing to give the instruction, we find any error harmless

because sufficient corroborating evidence was adduced at trial.

“When a jury receives substantial evidence that a witness who has implicated the

defendant was an accomplice, a trial court on its own motion must instruct it on the

principles regarding accomplice testimony. [Citations.] This includes instructing the

jury that an accomplice’s testimony implicating the defendant must be viewed with

caution and corroborated by other evidence. [Citations.]” (People v. Houston (2012) 54

Cal.4th 1186, 1223.) “An accomplice is someone subject to prosecution for the charged

crimes by reason of aiding and abetting or being a member of a conspiracy to commit the

charged crimes. [Citations.]” (Id. at 1224.)

“A trial court’s error in instructing on accomplice liability . . . is harmless if the

record contains ‘sufficient corroborating evidence.’ [Citation.] Corroborating evidence

may be slight, entirely circumstantial, and entitled to little consideration when standing

3 Since we have held the People committed no prosecutorial misconduct,
defendant’s IAC claim fails because he has failed to demonstrate any prejudice. (People
v. Vines (2011) 51 Cal.4th 830, 875-876.)

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alone. [Citations.] It need not be sufficient to establish every element of the charged

offense or to establish the precise facts to which the accomplice testified. [Citations.] It

is ‘sufficient if it tends to connect the defendant with the crime in such a way as to satisfy

the jury that the accomplice is telling the truth.’ [Citation.]” (People v. Valdez (2012) 55

Cal.4th 82, 147-148, fn. omitted.)

Here, Rodriguez was clearly an accomplice because she was arrested and charged

with the same substantive offense as defendant. Moreover, she later entered a plea

agreement with the People whereby she would receive a one-year jail term and six years’

probation in return for her testimony. Thus, the trial court was under a sua sponte duty to

instruct the jury with CALCRIM No. 335.

Nonetheless, the People adduced sufficient corroborating evidence at trial to

render the error harmless. Carlota testified she heard five to six shots outside the home.

Rushing to the window, she saw a large white vehicle parked outside. She saw a person,

dressed all in black, get into the vehicle. Three of the residence’s other denizens went to

follow the vehicle. Mayra testified she heard several gunshots. She called 911, informed

the dispatcher the shooter fired four to six times, and that he left in a white SUV toward

Florida Avenue.

Officer Hollenweger saw a white SUV on Florida Avenue traveling in a direction

away from the house; he stopped it within five minutes of Mayra’s 911 call. Inside the

car, he found a white bulletproof vest and a loaded nine-millimeter handgun. Officer

Riley found six, nine-millimeter shell casings near the gate of the home. A swab of

defendant’s hand revealed gunpowder residue consistent with having recently shot a gun.

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Defendant was wearing a belt emblematic of the 18th Street Gang, had gang tattoos, a

gang moniker, and self-classified as an 18th Street Gang member when admitted to jail.

He stated during a subsequent interview that he “tried to leave the gang.” Defendant was

arrested with two other known 18th Street Gang members. Thus, the corroborating

evidence reaffirmed the description of the vehicle in which defendant fled; the close

temporal and geographic proximity of defendant to the scene of the shooting; the

bulletproof vest; the type of weapon used; defendant’s gang affiliation; and the

motivation for the shooting, i.e., members of a rival gang lived at the residence.

Therefore, sufficient corroborating evidence was adduced such that the court’s failure to

instruct the jury with the accomplice instruction was harmless.

D. IAC REGARDING DEFENSE COUNSEL’S FAILURE TO REQUEST

THE COURT INSTRUCT WITH CALCRIM NO. 1403

Defendant contends defense counsel below committed constitutional IAC by

failing to request the court instruct the jury with CALCRIM No. 1403, the instruction that

limits how the jury may utilize evidence of gang activity.

“‘The law governing defendant’s claim is settled. “A criminal defendant is

guaranteed the right to the assistance of counsel by both the state and federal

Constitutions. [Citations.] ‘Construed in light of its purpose, the right entitles the

defendant not to some bare assistance but rather to effective assistance.’” [Citations.] It

is defendant’s burden to demonstrate the inadequacy of trial counsel. [Citation.] [The

Court has] summarized defendant’s burden as follows: “‘In order to demonstrate

ineffective assistance of counsel, a defendant must first show counsel’s performance was

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“deficient” because his “representation fell below an objective standard of reasonableness

. . . under prevailing professional norms.” [Citations.] Second, he must also show

prejudice flowing from counsel’s performance or lack thereof. [Citation.] Prejudice is

shown when there is a “reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. A reasonable probability

is a probability sufficient to undermine confidence in the outcome.”’” [Citation.] [¶]

Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of

ineffective assistance of counsel [citation], and there is a “strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance.”

[Citation.] Defendant’s burden is difficult to carry on direct appeal, as we have observed:

“‘Reviewing courts will reverse convictions [on direct appeal] on the ground of

inadequate counsel only if the record on appeal affirmatively discloses that counsel had

no rational tactical purpose for [his or her] act or omission.’” [Citation.]’ [Citation.] If

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 on appeal must be

rejected,”’ and the ‘claim of ineffective assistance in such a case is more appropriately

decided in a habeas corpus proceeding.’ [Citation.]” (People v. Vines, supra, 51 Cal.4th

at pp. 875-876.)

CALCRIM No. 1403, as presumably would have been given had defense counsel

requested it below, provides:

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 “You may consider evidence of gang activity only for the limited purpose of

deciding whether: The defendant acted with the intent, purpose, and knowledge that are

required to prove the gang-related . . . enhancement[s] . . . charged; or the defendant had

a motive to commit the crime[s] charged. . . . You may not consider this evidence for any

other purpose. You may not conclude from this evidence that the defendant is a person of

bad character or that [he] has a disposition to commit crime.” On request, the court must

give a limiting instruction when evidence of gang activity has been admitted. However,

there is no sua sponte duty to do so. (People v. Hernandez (2004) 33 Cal.4th 1040, 1051-

1052.)

Here, there is no evidence on the record as to why defense counsel failed to

request the instruction; thus, defendant has failed to carry his burden on appeal. As the

court in Hernandez itself stated with regard to this particular instruction, “‘A reasonable

attorney may have tactically concluded that the risk of a limiting instruction . . .

outweighed the questionable benefits such instruction would provide.’ [Citations.]”

(People v. Hernandez, supra, 33 Cal.4th at p. 1053.) This is, at least in one view of the

evidence, because it would call even greater attention and focus to the evidence of

defendant’s gang affiliation. Moreover, automatically assuming that any failure to

request the instruction in any case in which evidence of gang activity is adduced would

effectively require the court to give it sua sponte. Finally, there is simply no way the lack

of the instruction prejudiced defendant. Here, overwhelming evidence established

defendant’s guilt. As noted ante, defendant was found in the vehicle described, on the

specific street described, with a bulletproof vest, a gun matching the size shells found at

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the scene, and gunshot residue on his hands. Thus, defense counsel below did not

commit constitutionally IAC by failing to request the court instruct the jury with

CALCRIM No. 1403.4

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORT

MILLER
J.

We concur:

HOLLENHORST
Acting P. J.

CODRINGTON
J.

4 At best, we have found only two minor errors, which did not result in prejudice
to appellant. “No reasonable possibility exists that the jury would have reached a
different result absent any of the acknowledged or asserted errors under the applicable
federal or state standard of review. [Citations.]” (People v. Houston (2012) 54 Cal.4th
1186, 1233.)

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