People v. Contreras, F051844 (Cal. App. 12/27/2007)

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THE PEOPLE, Plaintiff and Respondent, v. ANDRE CONTRERAS, Defendant and Appellant.

F051844

Court of Appeals of California, Fifth Appellate District

December 27, 2007

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Tulare County, No. VCF143389. Joseph A. Kalashian, Judge.

Kim Malcheski, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

VARTABEDIAN, Acting P. J.

Defendant Andre Contreras was convicted of first degree murder, two counts of attempted murder, permitting another to shoot from a vehicle, shooting from a motor vehicle, and shooting at an inhabited dwelling. As to the first degree murder charge, the jury found true the special circumstances that the murder was committed to further gang activities and the murder was committed by discharging a firearm from a motor vehicle. In addition, multiple gun and gang enhancements were found true. Defendant appeals, raising numerous claims of ineffective assistance of counsel, arguing that the matter must be remanded for resentencing, and asserting it was error to impose a parole revocation fine. We agree that the matter must be remanded for resentencing; in all other respects, the judgment is affirmed.

FACTS

On March 26, 2005, Alejandro Gonzales reported that his white Honda four-door car had been stolen.

Pedro Flores was standing outside of his home on Easter morning March 27, 2005. A white car with two Hispanic male occupants drove by. The occupants of the car stared at Flores. Flores "flipped them off" and made a Northerner gang sign. The car turned around and one of the occupants fired shots at Flores. Flores later told an officer that the driver was the shooter. Flores ran inside and moved his sister from the front bedroom to the rear bedroom. More shots were fired into the front bedroom. Flores testified that the passenger was the person who was shooting after Flores went inside his home. Flores described the driver as skinny and the passenger as heavier. A handgun was used.

J.B., an 11-year-old neighbor of Flores, testified he was playing in the backyard on Easter morning. He heard gunshots and ran to a window and looked out. Flores was calling out names to the males in a four-door white car. The car contained two males in the front seat. Flores went inside his home. The car turned around and the passenger started shooting a rifle.

Later that same Easter morning, V was with his older brother, Anthony Castro (Castro). They went to a gas station to put gas in their mother's car. A white Honda drove by and the passenger flashed a Southerner gang sign at them. V and Castro ignored the incident. The driver stopped at the gas station and put gas in the car. V said the driver was skinny. They left the gas station and the white Honda followed them.

Castro then drove to pick up his good friend Alejandro Salazar, a Norteno gang member. Castro was still being followed by a white Honda with two males inside. The Honda continued to follow them after Castro picked up Salazar. Castro returned to his house and dropped off V. Castro changed his clothes and then he and Salazar began walking back to Salazar's house.

As Castro and Salazar were walking back toward Salazar's house, the white Honda drove in their direction. A rifle came out of the back seat window and shots were fired. Salazar fell to the ground, then got up and ran to his house. Castro ran into a different house.

V was outside of his house when his cousin Sandra came and said that Castro had been shot. V saw the white Honda speeding away from the area. Castro had been shot three times. He bled to death from the gunshot wound to his back. This bullet passed through his liver, kidney, diaphragm and heart. He had two other bullet wounds, one to his leg and one to his hip.

Salazar's aunt took Salazar to the hospital. He had been shot three times, once each to the head, back and leg.

On Easter evening, law enforcement received a call reporting the location of a stolen vehicle. Deputy Sheriff William Hakker went to the location. He saw a white Honda with a Hispanic male in the driver's seat. The male ran into an apartment. Defendant came out of the same apartment; he was not the male who ran inside the apartment. The white Honda matched the description of a vehicle used earlier in a shooting. The vehicle contained a .22 rifle, and a 12-gauge shotgun.

Defendant was questioned. At first, defendant denied all involvement in the shootings. He then admitted that during the first shooting he shot at the window of the house. In the second shooting, defendant was driving when Ezekial Perez shot at the two males walking down the street. Defendant said that earlier that morning he went to Kmart with Ezekial and gave him money to buy ammunition. Ezekial bought the ammunition.

On Easter morning, March 27, 2005, two bald, "gangster-type" males came into the Delano Kmart and purchased a box of .22 caliber ammunition. An employee of the store identified Ezekial Perez from a picture as the "chubby" person who walked out of the store with a bag of ammunition.

Stephen Pederson testified as an expert on gangs. He testified that defendant was a gang member and the crimes were committed for the benefit of a criminal street gang.

DISCUSSION

I. Effective Assistance of Counsel

Defendant raises a laundry list of claims he asserts as instances of the ineffective assistance of his defense counsel. He contends that the repeated instances should be considered presumptively prejudicial because they cumulatively demonstrate ineffectiveness and, even if not presumptively prejudicial, counsel's deficiencies were prejudicial in any event.

"`"[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was `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. [Citations.] 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.'"' [Citations.]" (In re Thomas (2006) 37 Cal.4th 1249, 1256.) The test "is not solely one of outcome determination. Instead, the question is `whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.' [Citation.]" (In re Harris (1993) 5 Cal.4th 813, 833.)

"`"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 professional assistance.'" [Citation.] "[W]e accord great deference to counsel's tactical decisions" [citation], and ..."courts should not second-guess reasonable ... tactical decisions in the harsh light of hindsight" [citation]. "Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts." [Citation.]'" (People v. Stanley (2006) 39 Cal.4th 913, 954.)

Defendant's first claim of ineffective assistance of counsel is that defense counsel was not prepared for trial. Defendant argues that defense counsel represented him at trial without filing any written motions, calling any witnesses, or filing a sentencing report. Defendant fails to argue or show how any of these claimed deficiencies may have prejudiced him at trial.

In addition to the above vague claims of lack of preparedness, defendant points to one specific instance as evidence that his counsel was unprepared. During his opening statement to the jury, defense counsel stated that the evidence will show that defendant is not guilty of murder or assault with a deadly weapon. Defendant was not charged with assault with a deadly weapon. Although this was a misstatement by defense counsel, counsel may have used it merely as a short-hand term for the other counts, which all involved shooting a gun. In any event, defendant has failed to show any prejudice. The jury was well aware of the charges against defendant from the instructions and the verdict forms. In addition, before the opening statement was made the court informed the jury that an opening statement is not evidence but is merely an overview as to what the attorney believes the evidence is going to be. Defendant has failed to show that the alleged lack of preparation by his counsel had any effect on the outcome of his case.

As to his second claim of ineffectiveness, defendant points to defense counsel's opening statement and closing argument to the jury where his counsel said that defendant was 15 years old at the time of the offenses. The information alleged that defendant was 16 years old at the time of the current offenses, thus making him eligible for a sentence of life without the possibility of parole if he was found guilty of first degree murder with special circumstances. (Pen. Code, § 190.5.)

Defendant claims that if defense counsel believed that defendant was only 15 years old at the time of the shooting, he had the obligation to produce legally admissible evidence to prove this contention and was ineffective in not doing so.

Defendant was asked his date of birth during his interview with law enforcement. He responded that his date of birth was February 7, 1989, thus making him 16 years of age at the time of the current offense in March of 2005. The probation report lists the same birth date. Defense counsel's argument to the jury included that defendant was a...