California Court of Appeal Nov 26, 2013 No. E055599Unpublished
Filed 11/26/13 P. v. Chavez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E055599
v. (Super.Ct.No. FSB704845)
ROBERT RICHARD CHAVEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Richard V. Peel,
Judge. Affirmed with directions.
Carl Fabian, 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, and A. Natasha Cortina, Annie
Featherman Fraser, and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and
Respondent.
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I. INTRODUCTION
Defendant Robert Chavez appeals from his conviction of premeditated attempted
murder (Pen. Code,1 §§ 664, subd. (a), 187, subd. (a)), with true findings on associated
Contrary to defendant’s argument, however, the issue whether experts must testify
in the form of hypotheticals is not settled, nor do we view the failure to do so as a
constitutional violation. The cases defendant cites merely state the unexceptional
proposition that one accepted method of introducing expert opinion testimony is through
the use of hypotheticals that mirror the facts of the case; however, those cases do not hold
that other forms of presenting expert testimony are unconstitutional. (See, e.g., People v.
Gardeley (1996) 14 Cal.4th 605, 618 [“Generally, an expert may render opinion
testimony on the basis of facts given ‘in a hypothetical question that asks the expert to
assume their truth.’”] (Italics added); Vang, supra, 52 Cal.4th at p. 1049 [holding that the
trial court did not err in permitting an expert witness to testify in the form of
hypotheticals that closely tracked the evidence].)
In Vang, the court acknowledged “that in some circumstances, expert testimony
regarding the specific defendants might be proper,” although it did not reach that issue
because it was not then before the court. (Vang, supra, 52 Cal.4th at p. 1048, fn. 4.) In
People v. Valdez (1997) 58 Cal.App.4th 494, the court found no error in an expert
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witness’s testimony that the defendant acted for the benefit of the particular gang. The
Valdez court explained: “‘There is no hard and fast rule that the expert cannot be asked a
question that coincides with the ultimate issue in the case.’ [Citations.] ‘“[T]he true rule
is that admissibility depends on the nature of the issue and the circumstances of the case,
there being a large element of judicial discretion involved . . . .”’” (Id. at p. 507.) Valdez
was cited with approval in People v. Prince (2007) 40 Cal.4th 1179, 1227.
Although defendant argues trial counsel’s failure to object to Officer Hernandez’s
testimony could not reasonably be justified as a tactical decision, we disagree. Trial
counsel could reasonably have concluded that raising objections to the form of the
questions would merely have led to a rephrasing of the questions in hypothetical format,
and essentially the same evidence would inevitably have been introduced. In People v.
Castaneda (2011) 51 Cal.4th 1292, the court stated, “The decision whether to object to
the admission of evidence is ‘inherently tactical,’ and a failure to object will rarely reflect
deficient performance by counsel. [Citation.] Because the evidence was admissible to
rebut defendant’s good character evidence, counsel may reasonably have decided to
avoid drawing further attention to defendant’s escapes with objections to brief references
to the escapes in other contexts. Although counsel could have objected outside the
presence of the jury to the references in the probation officers’ reports, any oversight in
failing to do so could not have affected the outcome, in light of the admissibility of the
same evidence in other contexts.” (Id. at p. 1335, fn. omitted.) Here, likewise, we
conclude defense counsel did not provide ineffective assistance in failing to object to the
form of the prosecutor’s questions.
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3. Vouching for Credibility of Witnesses
(a) Additional background
The prosecutor asked Officer Hernandez, “In your experience, is it common for
victims of crime who are gang members to refuse to testify truthfully in court?” The
officer replied, “Yes.” He explained: “As I said before, respect is everything, and as a
gang member if you are letting law enforcement handle what happened to you, you are
going to lose respect. You are snitching. You are a snitch. All three witnesses gave very
similar statements. Two witnesses got up here. One stayed true and is honest. He has
lost all respect now. As he said, he’s probably going to get shot. Another one got up
here and remembered most of the details of his report, but not remember [sic] anything
that had to do with who shot him. However he remembered the street, what kind of
houses [were] on the street, the houses, cottage style, also apartments on the street, the
cul-de-sac, people’s position in the car. However, he would not remember who shot him.
If the person who does remember everything tells the truth, loses all respect [sic]. Now
he’s a snitch. The victim was up here trying to almost take back his original statement to
fix the tag of being a snitch to try to take that off him.” Counsel did not object on the
ground of improper vouching.
(b) Analysis
An expert witness may not give an opinion as to whether a particular witness is
telling the truth “because the determination of credibility is not a subject sufficiently
beyond common experience that the expert’s opinion would assist the trier of fact.”
(People v. Long (2005) 126 Cal.App.4th 865, 871; see also People v. Coffman and
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Marlow (2004) 34 Cal.4th 1, 77 [“A witness may not express an opinion on a defendant’s
guilt”].)
In People v. Gonzalez (2006) 38 Cal.4th 932, the prosecutor as a gang expert
witness whether he “ha[d] an opinion as to whether or not there would be intimidation
against the gang member who was called to testify by his own gang as well as any other
gang.’” (Id. at p. 945.) The trial court overruled a defense objection, and the witness
responded, “‘Definitely.’” The witness further testified that both the witness’s own gang
and rival gangs would do the intimidating, that a member of the specific gang at issue
“‘would be in great jeopardy’” if he testified against a fellow gang member. (Ibid.) Our
Supreme Court found no abuse of discretion in the admission of such testimony. The
court explained: “This testimony was quite typical of the kind of expert testimony
regarding gang culture and psychology that a court has discretion to admit. Whether
members of a street gang would intimidate persons who testify against a member of that
or a rival gang is sufficiently beyond common experience that a court could reasonably
believe expert opinion would assist the jury. ‘It is difficult to imagine a clearer need for
expert explication than that presented by a subculture in which this type of mindless
retaliation promotes “respect.”’ [Citations.] [The expert’s] testimony was relevant to
help the jury decide which version of the testimony was truthful: the eyewitnesses’ initial
identifications of defendant as the shooter, and [the gang member witness’s] initial
statement that defendant admitted being the shooter, or the later repudiations of those
identifications and that statement. ‘Evidence that a witness is afraid to testify or fears
retaliation for testifying is relevant to the credibility of that witness and is therefore
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admissible. [Citations.] An explanation of the basis for the witness’s fear is likewise
relevant to her credibility and is well within the discretion of the trial court. [Citations.]’
[Citations.]” (Id. at pp. 945-946.)
We will assume for purposes of argument that the manner in which Officer
Hernandez expressed his opinion was improper to the extent he appeared to vouch for the
credibility of witnesses. However, given the general admissibility of expert testimony
concerning retaliation and intimidation by gang against witnesses (People v. Gonzalez,
supra, 38 Cal.4th at p. 945) defense counsel could reasonably have concluded that an
objection would merely have led to a reframing of the questions and might have further
emphasized for the jury the gang issues that underlay the case.
C. Instruction on Provocation
Defendant contends he was denied due process by the lack of proper instruction on
provocation sufficient to negate premeditation. He argues the trial court had a sua sponte
duty to instruct the jury with CALCRIM No. 522.2 He argues, in the alternative, that his
counsel provided ineffective assistance by failing to request the instruction.
1. Additional Background
At trial, defense counsel requested an instruction on heat-of-passion attempted
voluntary manslaughter. The trial court rejected the request, concluding there was
2 CALCRIM No. 522 provides: “Provocation may reduce a murder from first degree to second degree [and may reduce a murder to manslaughter]. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the degree of provocation in deciding whether the crime was first or second degree murder.”
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insufficient evidence of defendant’s emotional state at the time of the shooting.3 Counsel
did not request an instruction on provocation, and the trial court did not instruct on that
theory.
2. Analysis
CALCRIM No. 522 is a pinpoint instruction. (See People v. Rogers (2006) 39
Cal.4th 826, 877-879 [holding that the substantially similar CALJIC No. 8.73 was a
pinpoint instruction that need not be given sua sponte].) Because trial counsel did not
request that instruction, we will address the issue in the context of defendant’s alternative
argument of ineffective assistance of counsel.
Section 192, subdivision (a) defines voluntary manslaughter as an unlawful killing
without malice “upon a sudden quarrel or heat of passion.” Section 188 defines malice:
“Such malice may be express or implied. It is express when there is manifested a
deliberate intention unlawfully to take away the life of a fellow creature. It is implied,
when no considerable provocation appears, or when the circumstances attending the
killing show an abandoned and malignant heart.” (Italics added.)
Our Supreme Court has repeated held that “‘“[t]he provocation which incites the
defendant to homicidal conduct in the heat of passion must be caused by the victim
[citation], or be conduct reasonably believed by the defendant to have been engaged in by
the victim.” [Citation.]’ [Citation.]” (People v. Verdugo (2010) 50 Cal.4th 263, 294;
People v. Avila (2009) 46 Cal.4th 680, 705.) Here, the purported provocation was the
3 Defendant does not challenge the trial court’s rejection of the instruction on heat of passion.
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killing of defendant’s son not by the victim, but by another member of the victim’s gang.
Such “provocation” was therefore legally insufficient to support the instruction.
Moreover, voluntary manslaughter requires that the killing be done “‘suddenly as
a response to the provocation, and not belatedly as revenge or punishment. Hence, the
rule is that, if sufficient time has elapsed for the passions of an ordinarily reasonable
person to cool, the killing is murder, not manslaughter.’ [Citation.]” (People v. Daniels
(1991) 52 Cal.3d 815, 868.) Under that standard, the killing of defendant’s son more
than a year earlier would not support an instruction on provocation. We thus conclude
that counsel’s failure to request an instruction on provocation was not ineffective
assistance because the evidence did not support such an instruction. (People v. Lam
(2010) 184 Cal.App.4th 580, 583.)
D. Admission of CLETS Printout to Establish Prior Conviction Allegations
Defendant contends he was denied his right to effective assistance of counsel at
the court trial on prior conviction allegations when a CLETS printout was admitted
without foundation.
1. Additional Background
The information alleged a prior serious felony conviction, a 1981 robbery, that
qualified as a strike (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), as well as three
prison prior convictions. The allegations were tried to the court. To support the strike
allegation, the prosecutor introduced the CLETS printout showing that defendant had
been convicted of armed robbery, and a certified document from the Department of
Corrections and Rehabilitation, Division of Juvenile Justice, which showed that
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defendant had been committed to the California Youth Authority in that case on June 4,
1981, and released on December 5, 1985.
2. Forfeiture
Defendant’s counsel did not object to the admission of the CLETS printout on the
ground of lack of foundation. The People contend he has therefore forfeited his
challenge to such evidence. (People v. Kelly, supra, 42 Cal.4th at p. 793; Evid. Code,
§ 353, subd. (a).) Again, we will address the issue in the context of defendant’s
alternative argument that his counsel provided ineffective assistance by failing to object
to the evidence.
3. Analysis
Section 969b provides: “For the purpose of establishing prima facie evidence of
the fact that a person being tried for a crime or public offense under the laws of this State
has been convicted of an act punishable by imprisonment in a state prison, county jail or
city jail of this State, and has served a term therefor in any penal institution, or has been
convicted of an act in any other State, which would be punishable as a crime in this State,
and has served a term therefor in any state penitentiary, reformatory, county jail or city
jail, or has been convicted of an act declared to be a crime by any act or law of the United
States, and has served a term therefor in any penal institution, the records or copies of
records of any state penitentiary, reformatory, county jail, city jail, or federal penitentiary
in which such person has been imprisoned, when such records or copies thereof have
been certified by the official custodian of such records, may be introduced as such
evidence.”
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Even assuming for purposes of argument that the documents were used to prove
defendant’s strike were not properly certified by the official custodian of records, we do
not assume ineffective assistance of counsel in the failure to object on that basis. Counsel
could reasonably have assumed that the contents of the documents incontrovertibly
would prove the strike allegation and that an objection would merely have led to a
postponement of the inevitable true finding.
E. Admission of Rap Sheets
Defendant contends the admission of the CLETS printout to establish his prior
conviction violated the Confrontation Clause because it was testimonial evidence.
In People v. Taulton (2005) 129 Cal.App.4th 1218, 1224, the court held that the a
defendant’s rap sheet was not testimonial hearsay within the meaning of Crawford v.
Washington (2004) 541 U.S. 36, and its admission under the public records exception to
the hearsay rule was not error. (Accord, People v. Morris (2008) 166 Cal.App.4th 363,
367-373.) Defendant argues that Taulton did not survive the Supreme Court’s decision in
Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, which held that laboratory
certificates showing that substances seized and analyzed contained cocaine were
testimonial affidavits subject to the Confrontation Clause. This court has twice rejected
that very contention (People Moreno (2011) 192 Cal.App.4th 692, 709-711 [Fourth Dist.,
Div. Two] and People v. Larson (2011) 194 Cal.App.4th 832, 837 [Fourth Dist., Div.
Two]), although defendant has failed to cite or discuss those cases. We reject defendant’s
contention for the reasons stated in those cases.
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F. Custody and Conduct Credits
Defendant contends he is entitled to additional custody and conduct credits. The
People properly concede that defendant’s credits were incorrectly calculated.
1. Additional Background
The probation report shows that defendant was arrested on August 26, 2008, and
was sentenced on January 13, 2012. The trial court awarded 1,114 days of custody
credit, although defendant had actually served 1,236 days in custody. The trial court’s
minute order shows that conduct credits would be determined under section 2933.2,
which provides that persons convicted of murder do not receive conduct or worktime
credits. (§ 2933.2, subd. (a).) However, defendant was convicted of attempted murder,
not murder, and section 2933.2 therefore does not apply. Rather, under section 2933.1,
he is entitled to conduct credits at the rate of 15 percent of his actual time, or 185 days.
IV. DISPOSITION
The trial court is directed to prepare a new sentencing minute order and amended
abstract of judgment reflecting 1,236 days of custody credit and 185 days of conduct
credit and to forward the amended abstract to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST Acting P. J. We concur: KING J. CODRINGTON J.