Opinion Bank # O-235
NOTE: The text of the footnotes appears at the end of the document.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, A069056
v. (Contra Costa County Super. Ct. No. 940783-4)
RICHARD D. ROACH,
Defendant and Appellant.
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I. INTRODUCTION
Richard Roach (appellant) was convicted by a jury of several offenses for his role in an armed attack against two men at their Antioch home. Specifically, the jury found appellant guilty of two counts of attempted willful, deliberate and premeditated first degree murder, two counts of attempted robbery in an inhabited dwelling, first degree burglary, discharge of a firearm at an inhabited dwelling and possession of a firearm by a felon. The jury also found true allegations of personal use of a firearm and infliction of great bodily harm. Appellant was sentenced to two consecutive life terms, with the possibility of parole, and additional consecutive terms totaling eight years, four months.
Appellant alleges instructional and sentencing errors and also challenges the sufficiency of the evidence to support his conviction for discharging a firearm at an inhabited dwelling. Appellant has also filed a petition for writ of habeas corpus in which he alleges ineffective assistance of counsel, that false evidence was used against him and prosecutorial misconduct. Although we reject most of appellant’s arguments, we reverse appellant’s conviction for discharging a firearm. We also find that a sentencing error by the trial court requires us to remand this case for resentencing on the firearm use and great bodily harm enhancements. In all other respects, we affirm the judgment.
II. FACTS AND PROCEDURAL BACKGROUND
On the afternoon of March 30, 1994, Charles Johnson and Frank Davi were sunbathing in their back yard when their doorbell rang. Johnson went to the door and asked who was there. A voice Johnson did not recognized answered “Dave.” Johnson hesitated, but eventually unlocked and started to open the door. When a gun was forced through the open space, Johnson attempted to shut the door closing it on a man’s arm. The man holding the gun forced his way into the house.
Johnson grabbed the intruder’s arm to keep the gun pointed away from his body. Johnson then realized a second man was attempting to enter the house and, to prevent this. put the left side of his body against the door, while still holding, the intruder’s arm. Johnson called to Davi who came in to the house to help. The intruder pointed the gun at Davi. Davi grabbed the barrel of the gun, raised it toward the ceiling, and struggled with the intruder to keep the gun from being pointed in his direction.
While prevented from entering the house by Johnson, the second man yelled to his cohort: “Shoot em, shoot em” or “Shoot.” The intruder fired a shot from his gun. Davi then heard the glass pane in the front door break. The outside man yelled “Shoot ’em again, shoot ’em again.” Two or three more shots were then fired. According to both Johnson and Davi, these shots were not as loud as the first and did not come from the intruder’s gun. One of the bullets hit Johnson from behind, in the left shoulder near his neck. The intruder looked at both residents and then ran out the door.
Shortly after the incident, two men, who were later identified as appellant and Larry McCaslin, were spotted near the crime scene by a police officer. Appellant was holding a small, semi-automatic handgun, and McCaslin was pulling off an olive green shirt. The officer tried to pursue the men but they disappeared. McCaslin was spotted again, taken into custody, and walked back to the residence where the crime occurred. Both Johnson and Davi identified McCaslin as the intruder who actually entered their home. Approximately one hour after the assailants first approached the home of Johnson and Davi, appellant was arrested while eating lunch at a Chinese restaurant. Appellant had long scrapes on his arms and dirt and small cuts on his hands. His forehead and hands were bloody and he had twigs, grass, dirt and dust on his clothes and hair. There were ten .22 caliber rounds in his pants’ pocket.
Under a nearby bush, the police found a .22 caliber, semi-automatic pistol and a .3 8 revolver. The .22, which could hold a total of ten rounds, had six live rounds in its magazine and one live round in its chamber. The .3 8 contained five live rounds and one expended round.
An officer who had been called to the crime scene testified at trial that there was a hole in the plastic or plexi-glass panel of the front door of the victims’ residence that was 8 to 10 inches round. Two expended .22 caliber casings and one live .22 caliber round were found inside the front door; the expended casings had been fired from the .22 pistol the police had found in the nearby bush. Police also found a .38 bullet and its copper jacketing on the living room floor of the residence. The bullet had been fired from the .38 revolver the police had recovered.
Appellant was the sole defense witness. [Footnote 1] He testified that McCaslin was a recent acquaintance who asked him to help collect a drug debt in exchange for $200. Appellant agreed to help McCaslin and brought along his .22 pistol because McCaslin had said the two debtors knew martial arts. Appellant testified that he entered the house when the door was opened for him, but that Johnson grabbed him and shut the door behind him. Appellant claimed his gun was in his belt when he entered the house, but Johnson grabbed for it. and Davi joined in the struggle for the gun. Appellant claimed he fired a “warning shot” into the ceiling and another into the bedroom wall. Appellant admitted he did not know if a bullet from his gun had hit Johnson but testified that he did not think it had. Appellant testified that he never intended to shoot anybody.
The prosecution argued that appellant and McCaslin went to their victim’s home with the intent to commit robbery and were prepared to kill if met with resistance. Under the prosecution’s theory, McCaslin entered Johnson and Davis home and appellant was the outside man who shoved his .22 through the plastic pane of the front door and shot Johnson. The prosecution also maintained appellant was an aider and abettor of the attempted murder of Davi, which it argued was physically committed by McCaslin.
III. DISCUSSION
A. The Aider and Abettor Instructions Were Not Deficient
Appellant contends the jury instructions were deficient with respect to count two which charged appellant with attempting to murder Frank Davi because, appellant argues, the jury was not required to find that McCaslin specifically intended to kill Davi. Appellant reasons that, since the prosecution’s theory was that appellant was liable as an aider and abettor of the attempted murder of Davi, appellant’s conviction for attempting to murder Davi cannot be sustained unless the jury found that McCaslin specifically intended to murder Davi. [Footnote 2] According to appellant, the jury instructions permitted a conviction on count two without requiring the jury to make this finding.
The People concede that a defendant cannot be found guilty as an aider and abettor unless the jury finds that the principal actor committed the underlying crime. (See, e.g., People v. Solis (1993) 20 Cal.App.4th 264, 270-271; People v. Patterson (1989) 209 Cal.App.3d 6l0, 614.) Under the prosecution’s theory, McCaslin was the principal actor who attempted to murder Davi. Thus, appellant correctly observes that, for him to be guilty as an aider and abettor, McCaslin had to have specifically intended to kill Davi. However, we reject appellant’s contention the jury was not adequately instructed as to this requirement.
First, the instructions pertaining to aider and abettor liability highlighted for the jury the distinction between the perpetrator who directly and actively commits the crime and the person who aids and abets the commission of the crime. The jury was civen CALJIC No. 3.00 which instructed them that the law recards as “equally guilty” person who “directly and actively” commits or attempts to commit the act constituting the crime and the person who aids and abets the commission or attempted commission of the crime. CALJIC No. 3.01 further instructed that “[a] person aids and abets the [commission] [or] [attempted commission] of a crime, when he or she, [¶] (1) with knowledge of the unlawful purpose of the perpetrator and [¶] (2) with the intent or purpose, of committing, encouraging. or facilitating, the commission of the crime, by act or advice, aids, promotes, encourages or instigates, the commission of the crime. . . .”
Second, the instructions defining attempted murder made it clear to the jury that it had to find that the perpetrator, i.e., the person who committed the act(s) constituting the crime, had a specific intent to kill. Thus, CALJIC No. 6.00 defined “attempt” as consisting of two elements. a specific intent to commit the crime and a direct but ineffectual act done towards its commission. CALJIC No. 3.31 reinforced that both of these elements applied to the perpetrator by stating that “there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator. Unless such specific intent exists the [crime] [or] [allegation] to which it relates is not committed.” Further, the instruction defining attempted murder highlighted, once again, that the direct actor or perpetrator must have harbored a specific intent by requiring proof of the following elements: “1. A direct but ineffectual act was done by one person towards killing another person; and [¶] 2. The person committing such act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being.”
Finally, the jury instruction regarding the prosecution’s allegation that both attempted murders were willful, deliberate and premeditated rather clearly informed the jury this allegation pertained to the intent of the perpetrator. CALJIC No. 8.67 stated, among other things, that “[t]o constitute willful, deliberate, and premeditated attempt to commit murder, the would-be slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, decides to kill and makes a direct but ineffectual act to kill another human being.”
Thus, the instructions correctly apprised the jury that appellant was guilty as an aider and abettor of the attempted murder of Davi only if the perpetrator specifically intended to kill Davi. Without denying this, appellant arouses the instructions were nevertheless inadequate because they did not explicitly identify McCaslin as the perpetrator of the attempted murder of Davi. He argues such a fact specific instruction was necessary in this case because appellant himself was the alleged perpetrator of Johnson’s attempted murder. Appellant believes this rather unique circumstance rendered the instructions hopelessly confusing for the jury and permitted them to use evidence of appellants intent to satisfy the requirement that the perpetrator of the attempted murder of Davi had a specific intent to kill.
To address appellant’s contention, we consider the instructions as a whole and ask whether there is a “reasonable likelihood” the jury did not understand that in order to convict appellant of count two as an aider and abettor, it had to find that McCaslin specifically intended to kill Davi. (See People v. Clair (1992) 2 Cal.4th 629, 662-663; People v. Berryman (1993) 6 Cal.4th 1048, 1073, fn. 3.) We find no such reasonable likelihood on this record. The instructions which expressly defined aider and abettor liability made it clear to the jury that, if appellant was an aider and abettor, someone else had to have been the perpetrator who directly committed the crime charged. Under any interpretation of the evidence, that someone else had to be McCaslin. Once the jury understood that, it would also have understood that the other instructions we discuss above required it to find that McCaslin, as the perpetrator of the crime charged, harbored the requisite specific intent.
We also reject appellants contention that the alleged ambiguity in the instructions was exacerbated by arguments of counsel. Appellant contends that, by focusing almost exclusively on evidence of appellant’s specific intent, the prosecution misled the jury to believe that McCaslin’s intent was not relevant. We reject this bizarre explanation for the prosecution’s decision to focus on the undeniably damaging and relevant evidence of appellants intent. Although the prosecution spent very little time developing its aider and abettor theory, its references to that theory made clear that the prosecution wanted to hold appellant liable for what “Mr. McCaslin was doing inside” the house. The prosecution’s statements in this regard reinforced that, under the prosecution’s theory, McCaslin was the perpetrator of the attempted murder of Davi.
For all of these reasons, we reject appellant’s contention that it is reasonably likely the jury interpreted the instructions as permitting it to convict appellant as an aider and abettor without finding that McCaslin specifically intended to kill Davi.
B. The Reasonable Doubt Instructions Were Proper
Appellant contends that the instructions to the jury regarding the prosecutor’ s burden of proving guilt beyond a reasonable doubt were constitutionally inadequate. We disagree.
Appellant begins by criticizing the trial court for giving CALJIC No. 2.90 which uses the terms “moral evidence” and “moral certainly” to define the prosecutor’s burden of proof. [Footnote 3] Appellant emphasizes that the United States Supreme Court expressed concern about the use of these ambiguous terms to define the prosecutor’s burden of proof in Sandoval v. California (1994) 511 U.S. 1 [114 S.Ct. 1239, 1245-1249]. However. the Sandoval court held that using CALJIC No. 2.90 to define the prosecutor’s burden of proof did not violate due process. (Ibid.) Nevertheless, appellant argues the ambiguous terms employed by CALJIC No. 2.90 were exacerbated by other allegedly problematic instructions given in this case which were not at issue in Sandoval and that the cumulative effect was a denial of his constitutional rights. We reject appellant’s argument for two reasons. First, appellant ignores the fact that the jury in the present case was civen an additional instruction regarding, the presumption of innocence and the prosecutor’s burden of proof (Devitt and Blackmar instruction No. 12.10) which contained the following, unambiguous definition of reasonable doubt: “A reasonable doubt is a doubt based upon reason and common sense, the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his or her own affairs.” By giving this additional instruction. the trial court avoided the potential problems relating to the ambiguous language contained in CALJIC No. 2.90.
Second, and in light of the fact that an unambiguous definition of the prosecution’s burden of proof was given, we are not persuaded by appellant’s attempt to prove other instructions exacerbated the potentially ambiguous language in CALJIC No. 2.90 and cumulatively violated appellant’s constitutional rights. Appellant criticizes language contained in CALJIC No. 2.01 (relating to the sufficiency of circumstantial evidence) and CALJIC No. 2.02 (pertaining to circumstantial evidence of intent). Both instructions inform the jury it must adopt any reasonable interpretation of the evidence which indicates the defendant’s innocence. However. the instructions also state that if one interpretation of the evidence “appears to you to be reasonable and the other interpretation to be unreasonable, vou must accept the reasonable interpretation and reject the unreasonable.” [Footnote 4]
Appellant contends CALJIC Nos. 2.01 and 2.02 required the jury to return a guilty verdict on the basis of “inferences that merely ‘appear[ed]’ to the jury to be reasonable, if other inferences appeared unreasonable” and contends these instructions diluted the prosecution’s burden of proof. This precise argument was rejected by our Supreme Court in People v. Jennings (1991) 53 Cal.3d 334, 386.) Appellant contends People v. Jennings is inapposite because, in the present case, the prosecutor “exploited” the allegedly problematic language contained in CALJIC Nos. 2.01 and 2.01 during his argument by using the “apparently reasonable inference of guilt” concept to define the prosecutor’s burden of proof.
Although the prosecutor did talk about reasonable versus unreasonable interpretations of the evidence during his discussion of the prosecution’s burden of proof, he neither mischaracterized the instructions nor the prosecutor’s burden. We interpret nothing in the prosecutor’s argument as instructing the jury to base a guilty verdict on evidence that appellant was only “apparently” guilty. [Footnote 5] Rather, the prosecutor’s argument, like the instructions he discussed, “merely informs the jury to reject unreasonable interpretations of the evidence and to give the defendant the benefit of any reasonable doubt.” (See People v. Jennings, supra, 53 Cal.3d at p. 386.)
C. The Consciousness of Guilt Instructions Were Not Irrelevant
Appellant objects to two instructions that were given to the jury which related to evidence of appellant’s consciousness of guilt. The first such instruction, CALJIC No. 2.03, provided: “If you find that before this trial [the] defendant made a willfully false or deliberately misleading statement concerning the crime[s] for which [he] is now being tried, you may consider such statement as a circumstance tending to prove a consciousness of guilt. However, such conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are matters for your determination.” The second instruction, a version of CALJIC No. 2.06, provided: “If you find that a defendant attempted to suppress evidence against [himself] in any manner, such as by concealing evidence, such attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However, such conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are matters for your consideration.”
Appellant concedes that the record contains evidence he deliberately lied to a waitress at the Chinese restaurant where he was arrested by telling her that he got the bruises and cuts on his arms and face while trying to “separate the fight between his friend and the other guy.” Appellant also concedes he attempted to conceal evidence of his firearm by stashing it near some shrubs while attempting to flee from the police. Nevertheless, appellant contends the consciousness of guilt instructions were irrelevant and should not have been given.
Although appellant’s argument is not clear, he apparently believes that, notwithstanding the evidence summarized above, consciousness of guilt was not a relevant issue at all in this case. [Footnote 6] We disagree. Appellant’s argument is based on his mistaken view that very few issues were actually disputed at trial and that his alleged concessions rendered consciousness of guilt evidence irrelevant. In fact, such evidence was relevant even to some of the issues appellant admits were disputed. For example, according to appellant the primary issue at trial was whether he was the “inside” man or the “outside” man. From evidence that appellant lied to the waitress about his injuries the jury could have inferred not only that appellant was attempting to cover up his role in the crime but also that he lied to the jury about those same injuries (by denying that he incurred them when he stuck his arm through the window of Johnson’s and Davi’s door).
Furthermore, as the sole defense witness, and in light of the conflicting theories in this case, appellant’s credibility was highly relevant. Consciousness of guilt evidence was relevant to the jury’s evaluation of appellant’s credibility as a witness. (Cf. Evid. Code, § 780.) Finally. we are persuaded by the People’s contention that consciousness of guilt evidence is always relevant to prove guilt. “The commission of a crime leaves usually upon the consciousness a moral impression that is characteristic. The innocent man is without it; the guilty man usually has it. Its evidential value has never been doubted. The inference from consciousness of guilt to ‘guilty is always available in evidence.” (IA Wigmore, Evidence in Trials at Common Law (Tillers rev. 1983) § 173, p. 1840.)
D. The Conviction for Shooting at an Inhabited or Occupied Dwelling Must be Reversed
Appellant challenges the sufficiency of the evidence and alleges instructional error with respect to his conviction for violating section 246 of the Penal Code (section 246) which provides, in relevant part: “Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house . . . is guilty of a felony. . . .”
Appellant contends that his conviction must be reversed because the evidence establishes that he did not shoot “at” an inhabited dwelling since he was at least partially inside Johnson’s and Davi’s home when he discharged his gun. Appellant further contends that the trial court erroneously responded to the following question posed by the jury during its deliberations: “When the person has the weapon in the house but his body is outside the house is this considered in or at an inhabited dwelling house?” The trial court responded: “the answer is ‘at.'”
Relying on People v. Stepney (1981) 120 Cal.App.3d 1016 (Stepney), appellant maintains that section 246 is violated only if the perpetrator shoots at a dwelling from outside the dwelling. In Stepney, the defendant was convicted of violating section 246 by shooting at a television set while inside the victim’s living room. (Stepney, supra, 120 Cal.App.3d 1016.) Division Three of this court reversed, holding that “the firing of a pistol within a dwelling house does not constitute a violation of Penal Code section 246.” (Id. at p. 1021.)
The People question appellant’s reliance on Stepney, supra, by contending the Stepney court limited its holding to the facts of that case. In fact, the Stepney court limited its decision “to the discharge of a firearm within a dwelling.” (Stepney, supra, 120 Cal.App.3d at p. 1021.) [Footnote 7] The People concede appellant’s firearm and hand were “within” the dwelling when he discharged his gun. Nevertheless, they contend that appellant himself should not be deemed to have been “within” the dwelling because most of appellant’s body was outside the house. The prosecution further contends that since appellant’s brain remained outside the house, he formulated the intent to shoot from outside the dwelling.
The People cite no authority to support their creative and dangerously flexible approach for determining when a defendant should be considered sufficiently inside a dwelling to trigger application of section 246. Indeed, none of the cases cited by the People even address this issue. (See In re Daniel R. (1993) 20 Cal.App.4th 239; People v. Nguyen (1993 ) 13 Cal.App.4th 114, 118; People v. Sanders (1992) 10 Cal.App.4th 1268, 1274; People v. White (1992) 4 Cal.App.4th 1299, 1301.) [Footnote 8]
Appellant contends he was “within” the dwelling when he fired his gun because a perpetrator is deemed to have entered a dwelling even if only his hand invades the structure. Appellant’s authority for this proposition are cases establishing that entry has occurred for purposes of proving burglary if the defendant’s hand entered the dwelling. (See People v. Massey (1961) 196 Cal.App.2d 230, 236; People v. Pettinger (1928) 94 Cal.App. 297, 299.)
In contrast to the People’s argument, the bright-line rule proposed by appellant is not only supported by authority defining, the element of entry in burglary cases, it is consistent with the reasoning of Stepney. Further, appellant’s proposed rule can be more uniformly and fairly applied than the People’s proposed test. Therefore, we hold that an individual whose hand enters a dwelling before he discharges his firearm is not guilty of violating section 246. The evidence in this record which establishes that at least appellant’s hand entered the dwelling before he fired his gun precludes us from sustaining appellant’s conviction for violating section 246.
E. The Case Must Be Remanded For Sentencing On Count One
The trial court imposed a sentence of life with the possibility of parole for appellant’s conviction under count one for attempting to murder Johnson. The court enhanced this sentence by adding a midterm firearm use enhancement of four years and a great bodily injury enhancement of three years for a total of seven additional years with respect to count one. The trial court did not state any reason for its decision to impose enhancements for both the firearm use and for causing great bodily injury.
In People v. Reiley (1987) 192 Cal.App.3d 1487 (Reiley), Division Five of this court held that “‘the imposition of both weapons and great bodily injury enhancements under Penal Code section 1170.1, subdivision (e), constitutes a sentence choice within the meaning of section 1170, subdivision (c), requiring a statement of reasons by the trial court.” (Id. at p. 1488.) Though critical of Reiley. the People begrudgingly concede that the trial court in the present case erred by failing to provide a statement of reasons for imposing dual enhancement with respect to count one. However, the People contend that a remand is unnecessary because it is not reasonably probable that requiring the court to provide a statement of reasons would result in a more favorable sentence for the appellant. (See People v. Sandoval (1994) 30 Cal.App.4th 1288, 1300-1301.)
Appellant disagrees by suggesting that the trial court did not provide a statement of reasons because it did not realize that it had discretion to impose one or both of the enhancements in question. (See Pen. Code, § 1170.1, subd. (e).) To support this argument, appellant points out that the trial court carefully articulated reasons for the other discretionary sentencing decisions it made in this case. Appellant concludes that, especially in light of the other severe sentencing choices that were made, the trial court would not have imposed both enhancements if it realized it had discretion not to do so.
Though maintaining that appellant has failed to establish the trial court was unaware of its discretion, the People concede that “[g]iven the usual skill of the sentencing judge in this case,” appellant’s contention, that the trial court would have provided reasons if it was aware of its discretion, “is not unreasonable.” The trial court’s “generally meticulous attention to explaining its exercise of discretion” with respect to all of its other discretionary sentencing choices is an indication that “the trial court may have been unaware it had a separate and additional sentencing choice under section 1170.1, subdivision (e).” (Reiley, supra, 192 Cal.App.3d at p. 1491.) We conclude, as the Reiley court did. that the trial court’s omission requires a remand for resentencing on the firearm possession and great bodily injury enhancements.
IV. THE HABEAS PETITION
In his habeas petition, appellant claims that (1) he was denied effective assistance of counsel, (2) false evidence was used aaainst him in violation of Penal Code. section 1473, subdivision (b)(1), and he was denied due process because the prosecutor wrongfully dissuaded McCaslin from testifying on appellant’s behalf. We evaluate the petition “by asking whether, assuming the petition’s factual allegations are true, the petitioner would be entitled to relief. [Citations.] If no prima facie case for relief is stated, the court will summarily deny the petition. If, however, the court finds the factual allegations, taken as true, establish a prima facie case for relief, the court will issue an [order to show cause]. [Citation.]” (People v. Duvall (1995) 9 Cal.4th 464, 474-475.)
A. Ineffective Assistance of Counsel
Appellant contends his trial counsel’s performance was deficient because counsel failed to adequately investigate the physical evidence and failed to object to the admissibility of irrelevant and prejudicial evidence. [Footnote 9]
The right to effective assistance of counsel is guaranteed by both the federal and California Constitutions. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) The burden of proving ineffective assistance of counsel is on the defendant. (People v. Babbitt (1988) 45 Cal.3d 660, 707.) “The claim of ineffective assistance of counsel involves two components, a showing the counsel’s performance was deficient and proof of actual prejudice. [Citations.]” (People v. Garrison (1989) 47 Cal.3d 746, 786.)
To be deficient, counsel’s performance must have fallen below an objective standard of reasonableness under prevailing professional norms. In applying this prong of the test, courts must exercise deferential scrutiny so as to avoid the dangers of “second guessing.” (People v. Ledesma supra, 43 Cal.3)d at p. 216.) To establish prejudice, “‘[t]he defendant must show that 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.'” (Id. at pp. 217-218.) “[T]o be entitled to reversal of a judgment on grounds that counsel did not provide constitutionally adequate assistance, the petitioner must carry his burden of proving prejudice as a ‘demonstrable reality,’ not simply speculation as to the effect of the errors or omissions of counsel.” (People v. Williams (1988) 44 Cal.3d 883, 937.)
1. Failure to Investigate
Appellant contends counsel failed to discover and present evidence that (1) the hat and sunglasses found inside the victim’s home belonged to appellant; (2) appellant’s arms were too large to fit through the hole in the victim’s front door; and (3) evidence that the scratches on appellants arm were not consistent with injuries that would have been sustained by putting one’s arm through the hole in the door.
a. The Hat and Sunglasses
Appellant testified at trial that the hat and sunglasses found inside the victims’ home belonged to him and that he never loaned these items to McCaslin. Appellant complains that his trial counsel failed to procure and present a witness to corroborate this testimony. Appellant has submitted the declaration of his sister who states she could and would have testified that the hat and sunglasses belonged to appellant. Appellant further contends in his own declaration that he advised his trial counsel that his sister could provide such testimony.
Appellant’s trial counsel did investigate whether someone could corroborate that the hat and sunglasses belonged to appellant. Indeed, appellant admits in his petition that trial counsel instructed his investigator to interview two potential witnesses; one individual could provide no useful testimony and the other could not be located. However the record does not disclose why counsel failed to interview appellant’s sister. Counsel may have concluded that such a close relative would not be persuasive to the jury. In any event, appellant has not established he was prejudiced because his sister did not testify. Appellant overestimates the value of his sister’s testimony. The dispute at trial was not as to who owned the glasses and hat but as to who was wearing them when the crime was committed. Appellant’s sister had nothing useful to say about this disputed issue.
b. The Door and Scratches on Appellant’s Arm
Appellant contends counsel failed to adequately examine the door to the victims’ residence and to investigate whether the abrasions on appellant’s arms were consistent with the injuries that would have resulted from putting one’s arms through the hole in the plexi-glass door pane. To support this claim, appellant had retained a “criminalist” who conducted an investigation and submitted a declaration in which he opines (albeit by making certain crucial assumptions) that appellant’ s arms were too large to fit through the hole in the door and that appellant could not have inserted his arms through the hole without incurring cuts and abrasions of a materially different nature than the abrasions which police found on appellants hands and left arm.
According to appellant, the evidence he has now developed was relevant because it “normally” takes two hands to cock a .22 pistol such as the one appellant used during the crime, and the only way he could have been the outside man and still left an unexpended .22 bullet and two expended bullet casings inside the victim’s house was if he could fit both arms through the hole in the door. Appellant further contends that he would have had to have used his right hand to shoot the gun because he is right-handed and had previously injured his left hand. Therefore, appellant contends, it is not possible that the broken plexi-glass could have caused injuries to only his left but not his right arm.
By developing this new “door theory,” appellant has not established that his trial counsel failed to adequately investigate the physical evidence in this case. Evidence submitted in support of the petition indicates that trial counsel did review the physical evidence at the Antioch police department and inspect the crime scene while accompanied by an investigator. Further, contrary to appellants contentions, trial counsel did use evidence pertaining to the size of the hole in the door and the scratches on appellants arm to corroborate appellant’s testimony.
Counsel cross-examined the People’s criminologist about tests the People could have performed had they found any evidence of blood, tissue or hair on the broken door pane. Then, during closing argument, counsel used the criminologists testimony to argue that if someone had scratched their arm on the shattered plastic, there would have been blood on the plastic that could have been tested to determine whether it belonged to appellant. Counsel emphasized that there was no evidence of any such tests because appellant did not stuff his arms through the hole. [Footnote 10] Counsel also argued during his closing that his client could not have gotten both arms through the hole in order to cock his gun. He focused not only on the same photographs relied on by appellant’s new expert, but more specifically on his client’s testimony that the holes were much smaller than those depicted in the photographs which were taken some time after the incident and after the door had been removed to another location. Counsel concluded: “So. whatever happened, no matter what size that hole was on the date that the incident happened, nobody could have stuffed both hands through that hole and been actuating that gun to strip out a live round and put it inside the premises. And it just didn’t happen that way.”
We do not think counsel acted deficiently simply because he did not hire a criminalist to develop the precise door theory appellant now advances. Unlike trial counsel, appellant has the benefit of hindsight and a complete trial record from which to extract and exploit weaknesses in the prosecution’s theory. Further, appellant’s theory is far from flawless. First, his expert had to make assumptions about both the size of the door and the size of the hole in the plexi-glass. Second, even ignoring these assumptions. the theory does not prove appellant was not the outside man. [Footnote 11]
In addition, appellant has failed to carry his heavy burden of proving prejudice. Evidence that appellant was the outside man was overwhelming. Both victims identified McCaslin as the man who came into their house. Further, Davi testified he was certain the inside man had a revolver and it was undisputed that appellant used a .22 semiautomatic pistol during the crime. In addition there was substantial evidence that Johnson, who had his back to the door, was shot in the back of the neck with a .22 bullet. The physical evidence pertaining to the number of bullets fired from each gun and the number of bullets found at the scene strongly indicates that Johnson was hit by a .22 bullet. Counsel’s failure to present appellant’s new door theory does not undermine our confidence in the outcome of the verdict.
Finally, contrary to appellant’s contention, the jury did not have to find that appellant was the outside man to convict him of the charged crimes. Indeed, the prosecutor argued that even if appellant was the inside man. appellant was guilty of attempted murder as an aider and abettor. The jury could well have accepted this alternative theory which was supported by substantial evidence that the inside man entered the house with gun in hand, struggled with the residents, and intentionally fired his gun at the urging of his cohort with the intent to kill.
2. Failure to Preclude and Introduce Evidence
a. Allegedly Prejudicial Evidence
Appellant complains that counsel failed to object to the admission of two categories of allegedly unduly prejudicial evidence. Generally, the failure to make objections is a matter of trial tactics as to which the court does not exercise judicial hindsight. Except in rare cases- an appellate court should not attempt to second guess trial counsel. (People v. Lanphear (1980) 26 Cal.3d 814, 828, vacated on other grounds in California v. Lanphear (1980) 449 U.S. 810, opn. reaffirmed after remand 28 Cal-3d 463.) “‘It is not sufficient to allege merely that the attorney’s tactics were poor, or that the case might have been handled more effectively . . . Rather, the defendant must affirmatively show that the omissions of defense counsel involved a critical issue, and that the omissions cannot be explained on the basis of any knowledgeable choice of tactics.’ [Citations.]” (Id. at pp. 828-829.)
Appellant first objects to counsel’s failure to object to evidence pertaining to so called “theft-related” items that were found in the trunk of the car used to drive to the victims’ residence. These items included a pipe bomb, several watches, numerous brand new tools. more than a dozen knives, a cross-bow, and bullets. Appellant contends the evidence would unquestionably have been excluded as irrelevant, unduly prejudicial and as incompetent character evidence. But this other crime evidence was arguably relevant to the disputed issue of appellant’s and McCaslin’s motive and intent when they approached the residence; it tended to undermine appellant’s claim that his and McCaslin’s intent was simply to collect a debt. (See People v. Delgado (1992) 10 Cal.App.4th 1837, 1844-1845; People v. Rowland (1992) 4 Cal.4th 238, 260-26 1.) Trial counsel may reasonably have concluded that objecting to the evidence would have been fruitless and would only have drawn additional attention to it.
We also reject appellant’s related contention that counsel performed deficiently by failing to introduce evidence linking the car and its contents to McCaslin in order to lessen the prejudicial impact of the car trunk evidence. Counsel’s cross-examination of the officer who testified as to the contents of the trunk established that the car was registered to a third person and that some of the items in the trunk were linked to McCaslin. Thus, counsel sufficiently associated the car trunk evidence with individuals other than his client without opening the door any further into this dangerous area. [Footnote 12] Further. none of the evidence appellant now argues should have been introduced would have undermined the prosecution’s core theory — that appellant and McCaslin were engaged in a joint enterprise and jointly controlled the car and its content. This theory was supported by the undisputed evidence that appellant and McCaslin traveled in the car together and that the car keys were found in appellant’s pocket.
Appellant next argues counsel failed to object to a police officer’s testimony regarding his efforts to recover appellant’s gun. The officer testified that he told appellant the gun would not be used as evidence but that he simply wanted to retrieve it before it could be found by school kids in the area. The officer testified that when he expressed concern about the school kids, appellant indicated the guns were in some bushes, “[a]nd left it at that.” Appellant contends this evidence would have been excluded had counsel objected because it improperly portrayed appellant as indifferent to the safety of school kids in the neighborhood. Such a conclusion was hardly compelled by the officer’s testimony. Further, the testimony was relevant to establish how and where appellant’s gun was recovered. Appellant also complains that, once this evidence was admitted, counsel again acted unreasonably by failing to elicit evidence from another officer that appellant told him the gun was under some bushes but that he was not sure where. Such testimony was not substantially different from that of the officer who testified. Further, had trial counsel called another officer to elicit this evidence, he risked not only focusing the jury’s attention on the safety of school children testimony. but also that the second officer might have had additional information pertaining to this issue that could have harmed appellant’s case.
b. The Prior Felony Conviction
Appellant was charged with being a felon in possession of a handgun. and the indictment alleged two prior felony convictions, one for burglary and another for false imprisonment. At trial, the prosecution introduced documentary evidence of appellant’s prior burglary conviction. Appellant contends evidence of his prior conviction could have been kept from the jury altogether if trial counsel had advised appellant to plead guilty to the charge of being a felon in possession of a handgun or to stipulate to the prior felon element of that charge. Appellant further complains that the documentary evidence of appellant’s prior conviction contained “a welter” of additional irrelevant and prejudicial information about appellant’s criminal history that trial counsel failed to object to.
First, contrary to appellant’s contention, trial counsel did successfully object to the admission of additional irrelevant prejudicial information, such as the terms of appellant’s probation and cases that were dismissed upon the taking of appellant’s plea. The trial court ruled that only the minute order for the plea and sentence of appellant’s prior conviction for second degree burglary would be admitted.
Second, appellant is incorrect that all evidence of his prior conviction could not have been excluded simply by stipulating to a prior felony. A defendant charged with the felony of being a felon in possession of a firearm in violation of Penal Code section 12021 cannot stipulate to his prior felony conviction. (People v. Valentine (1986) 42 Cal.3d 170, 173 (Valentine).) The Valentine court concluded the jury must be advised that a defendant is an ex-felon where that is an element of a current felony charge. (Valentine, supra, 42 Cal.3d at p. 173.)
Third, we disagree that trial counsel acted deficiently by failing to advise appellant to plead guilty to the felon in possession charge or to stipulate to the prior felony in order to limit evidence as to the nature of the prior felony. [Footnote 13] Trial counsel could well have concluded these options were not in his client’s best interest in light of the decision that appellant would testify at trial. The prosecution may show that a witness, including the defendant. has been convicted of a felony “[f]or the purpose of attacking the credibility of the witness.” (Evid. Code. § 788; Witkin, Cal. Evidence (3d ed.1986) Introduction of Evidence at Trial, § 1940, p.1894.) Prior felonies involving moral turpitude may be admissible for impeachment. (People v. Castro (1985) 38 Cal.3d 301,14.) The prosecution may also inquire into the nature of the prior felony. (3 Witkin, Cal. Evidence, supra, §1945 at p. 1899; see also People v. Smith (1966) 63 Cal.2d 779, 790.) Further, the prosecution is not limited to using only one prior felony. (See, e.g., People v. Muldrow (1988) 202 Cal.App.3d 636, 643-645; People v. Phillips (1985) 41 Cal.3d 29, 54.)
Since the jury would have learned about appellant’s prior felonies when he took the stand, trial counsel did not perform deficiently by failing to advise his client to stipulate or plead guilty to the prior felony charge.
B. False Evidence
Appellant next contends that false evidence was used acainst him. Penal Code, section 1473, subdivision (b)(1), provides that a writ of habeas corpus may be prosecuted when “[f]alse evidence that is substantially material or probative on the issue of guilt or punishment was introduced against a person at any hearing or trial relating to this incarceration.” To obtain relief on this basis, the appellant must establish that (1) false evidence was introduced against him, and (2) there is a reasonable probability that, had the evidence not been introduced, the result would have been different. A reasonable probability is one sufficient to undermine the reviewing court’s confidence in the outcome of the proceeding. (In re Sassounian (1995) 9 Cal.4th 535, 546.)
Appellant has failed to establish a prima facie case; his factual allegations, even if taken as true, do not establish that any of the evidence introduced aaainst him was false. Instead, appellant simply makes conclusory allegations that evidence damaging to him was false, e.g., evidence tending to show he was the outside man, evidence that he displayed indifference to the safety of school children, etc. Appellant has not identified any witness who allegedly. lied or misstated any objectively verifiable fact or anv evidence that was allegedly falsified. There is simply no basis for appellant’s claim that false evidence was used against him.
C. Prosecutorial Misconduct
Appellant’s final contention is that his constitutional rights were violated because the prosecutor improperly dissuaded McCaslin from testifying on appellant’s behalf. “A defendant’s constitutional right to compulsory process is violated when the government interferes with the exercise of his right to present witnesses on his own behalf. [Citations.] [¶] Governmental interference violative of a defendant’s compulsory process right includes, of course, the intimidation of defense witnesses by the prosecution. [Citations.]” (In re Martin (1987) 44 Cal.3d 1, 30.) To establish a violation of his compulsory process right, a defendant must demonstrate (1) misconduct by a governmental agent, (2) interference, i.e., a causal link between the misconduct and the inability to present a witness. and (3) that the testimony would have been both material and favorable to the defense. (Id. at pp. 31-32.) To establish misconduct, a defendant must show that the governmental agent involved “engaged in activity that was wholly unnecessary to the proper performance of his duties and of such a character as ‘to transform [a defense witness] from a willing witness to one who would refuse to testify. . . .’ [Citations.]” (Id. at p. 31.)
Appellant has submitted the declaration of Larry McCaslin wherein McCaslin corroborates appellant’s claims that (1) the two went to the victims’ home to collect a debt, (2) appellant was wearing the hat and sunglasses and carrying a .22 pistol, and (3) McCaslin was the outside man. McCaslin further declares that he would have testified to these events, “but my lawyer told me that the prosecutor had told him that if I did testify for Mr. Roach, the prosecutor would withdraw my deal.” For this reason, McCaslin states, McCaslin took the Fifth Amendment and refused to answer questions at appellants trial.
Appellant has not alleaed facts which, if taken as true, establish misconduct, the first element of his claim. McCaslin’s declaration, even if accepted as true, does not establish that the prosecutor threatened McCaslin. Rather, the statement indicates that McCaslin’s trial counsel told him the prosecutor had made such a threat. Appellant has submitted no declaration from McCaslin’s trial counsel to establish that such a threat was actually made. Nor do we find any circumstantial evidence in the record to support such a conclusion. To the contrary, the record reveals that, at the time McCaslin was called to testify the prosecution was in no position to “withdraw [McCaslin’s] deal”; McCaslin had already entered a guilty plea pursuant to a plea agreement and had a commitment from the court as to what his sentence would be. We conclude that McCaslin’s statement, standing alone, is insufficient to establish a prima facie case of prosecutorial misconduct.
V. DISPOSITION
Appellant’s conviction for discharging a firearm at an inhabited dwelling is reversed. In all other respects the judgment is affirmed but the cause is remanded to the trial court for resentencing on the count one enhancements under Penal Code section 1170.1, subdivision (e). The petition for a writ of habeas corpus is denied.
Haerle, J.
We concur:
Kline, P.J.
Lambden, J.
FOOTNOTES:
McCaslin pled guilty pursuant to a plea bargain to two counts of attempted second degree murder, two counts of first decree burglary, four counts of first degree robbery, and other crimes unrelated to the incident in question. McCaslin received a total sentence of 25 years and four months. McCaslin was called as a witness by appellant but refused to testify.
We reject appellant’ s contention that the jury had to find appellant as an aider and abettor to convict him of the attempted murder of Davi. Neither the indictment, the instructions nor the evidence precluded the jury from finding that appellant directly attempted to murder Davi. Indeed, in light of the jury’s determination that appellant directly attempted to kill Johnson, we question whether the jury could have exonerated appellant of directly attempting to kill Davi as well. Nevertheless, we acknowledge that the prosecution’s only articulated theory with respect to Davi’s attempted murder was that appellant was liable as an aider and abettor and that the jury could have convicted appellant on this theory.
The jury was instructed in the language of CALJIC 2.90 that: “A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether [his] guilt is satisfactorily shown, [he] is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving [him] guilty beyond a reasonable doubt.
“Reasonable doubt is defined as follows: it is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty of the truth of the charge.”
The jury was given the following instruction based on CALJIC No. 2.01: “However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory, that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion.
“Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable, doubt. each fact or circumstance upon which such inference necessarily rests must be proved beyond a reasonable doubt.
“Also, if the circumstantial evidence [as to any particular count] is susceptible of two reasonable interpretations, one of which points to the defendant’s guilt and the other to [his] innocence, you must adopt that interpretation which points to the defendant’s innocence, and reject that interpretation which points to [his] guilt.
“If, on the other hand, one interpretation of such evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation, and reject the unreasonable.”
The jury also heard the following, version of CALJIC 2.02: “The [specific intent] with which an act is done may be shown by the circumstances surrounding the commission of the act. However, you may not find the defendant guilty of the crime charged [in counts[s] 1, 2, 3, 4 & 5], [or the crime of attempted voluntary manslaughter, which [is a] lesser crime], unless the proved circumstances are not only (1) consistent with the theory that the defendant had the required [specific intent] but (2) cannot be reconciled with any other rational conclusion.
“Also, if the evidence as to [any] such [specific intent] is susceptible of two reasonable interpretations, one of which points to the existence of the [specific intent] and the other to the absence of the [specific intent], you must adopt that interpretation which points to the absence of the [specific intent]. If, on the other hand, one interpretation of the evidence as to such [specific intent] appears to you to be reasonable and the other interpretation to be unreasonable. you must accept the reasonable interpretation and reject the unreasonable.”
Appellant complains about two specific portions of the prosecutor’s closing argument. First, while discussing the prosecution’s burden of proof, the prosecutor summarized the portions of CALJIC Nos. 2.01 and 2.02 to which appellant objects and then stated:
“What is that instruction saying? It is talking really about the presumption of innocence. It is saying, if you look at the evidence and there is [sic] two reasonable interpretations, one says guilty, one says not guilty the presumption of innocence tells you you have to vote not guilty.
“But that instruction immediately goes on and it says, if, on the other hand, one interpretation of such evidence appears to you to be reasonable and the other to be unreasonable, it is your duty to adopt the reasonable interpretation of the evidence and to reject the unreasonable.
“So that’s really what we’re talking about here, is using your powers of reason, using your common sense. In the context of the evidence presented, is there more than one reasonable interpretation?”
Later, the prosecutor stated:
“We’re not suggesting to you that there is any single witness here, that there is any single piece of physical evidence that in and of itself proves the defendant’s guilt. You have to put them together. You have to add them up. And if it doesn’t fit, then you had better rethink it until it does. Because you have to have a reasonable explanation of the evidence.
“And, ladies and gentlemen, we can only submit to you, there is only one reasonable interpretation of this evidence. And that is, that Richard Roach is guilty of the attempted, deliberate, and premeditated murder of Charles Johnson. He shot him in the back.”
To some extent, appellant also argues that evidence that he lied to the waitress and tried to hide his gun should not have been admitted because it was not sufficiently probative of his consciousness of guilt. We reject appellant’s argument as untimely because it was not made below. (Evid. Code, § 353.)
We also summarily reject appellant’s related argument that giving CALJIC No. 2.06 violated his due process rights. Appellant concedes the Supreme Court rejected this precise argument in People v. Johnson (1992) 3 Cal.4th 1183, 1235-1236.
The court recognized that different questions were posed by cases in which a person fired a weapon from one apartment into an adjoining apartment through a wall or ceiling, or where a firearm was discharged in a hallway of a multiple family dwelling. (Stepney, supra, 120 Cal.App.3d at p. 1021.) In contrast to these hypothetical situations, the present case is not as easily distinguishable from the facts of Stepney. Indeed. the People fail to offer any substantive distinction.
In fact, In re Daniel R. is the only case cited by the People which contains any substantive discussion of a section 246 offense. Although In re Daniel R. involved allegations the defendant shot at an occupied vehicle and did not address the issue we face, the court in that case stated that the intent element of a section 246 offense requires proof of an intent to hit the building or vehicle. (In re Daniel R., supra, 20 Cal.App.4th at pp. 245-246; see also People v. Chavira (1970) 3 Cal.App.3d 988. 992-993.) Thus, intent cannot be established when, as here, the person’s hand and gun were inside the structure when the firearm was discharged.
In addition, appellant has included in his petition a list of “other matters” which allegedly support his ineffective assistance claim. This list of conclusory allegations is factually and/or legally insufficient to support appellant’s petition. ” ‘Conclusory alienations made without any explanation of the basis for the allegations do not warrant relief, let alone an evidentiary hearing.’ ” (People v. Duvall, supra, 9 Cal.4th at p. 474.)
This evidence undermines appellant’s related argument that counsel performed deficiently By failing to call an Officer Weikel to testify as to a statement in Weikel’s report that he “was unable to observe any apparent blood or tissue” when he inspected the broken door pane. The testimony counsel obtained from the People’s criminologist was arguably more useful than Weikel’s statement since Weikel did not perform his visual investigation until more than a month after the crime, after the door had been removed and replaced.
For example, even if we accept appellant’s contention that it takes two hands to cock a .22, appellant could have put the hole in the window, removed his arm, cocked the pistol and then put his arm back through the hole. Or, as the People suggest, appellant could have pulled his arm back far enough so that just his two hands fit through the hole, cocked his pistol, removed one hand and then fired the pistol. Similarly, even if we accept appellant’s contention that he would have had to use his right hand to shoot the gun, appellant could still have incurred injuries to his left arm by using it to break the door pane, removing that arm and then inserting his right arm in the hole.
Indeed, the evidence appellant now claims should have been admitted, evidence that the items in the trunk had been stolen by McCaslin and that the pipe bomb belonged to McCaslin, would have precluded the jury from concluding the items belonged to a third party and thereby bolstered the prosecution’s theory the items were relevant to establish the joint intent of McCaslin and appellant.
When the defendant stipulates to ex-felon status, evidence as to the nature of his prior conviction is not relevant or admissible to prove the elements of the charge of being a felon in possession of a handgun. (Valentine, supra, 42 Cal.3d at p. 173.)
