ARONSON, J.
A jury convicted Manuel Burciaga of first degree murder (Pen. Code, § 187, subd. (a); all statutory citations are to the Penal Code) and active participation in a criminal street gang (§ 186.22, subd. (a)). The jury also found he personally used a firearm while committing the murder (§ 12022.5, subd. (a)), and that he committed the murder "for the benefit of, at the direction of, or in association with [a] criminal street gang. . . ." (§ 186.22, subd. (b).) Burciaga contends we must reverse his conviction because he was denied his constitutional right to the effective aassistance of counsel at trial. We conclude Burciaga has not demonstrated counsel's representation fell below an objective standard of professional reasonableness, or there existed a reasonable probability he would have obtained a more favorable result in the absence of the alleged deficiencies. The parties to agree the trial court violated section 654 by imposing a two-year consecutive term for active participation in a criminal street gang in addition to the term imposed for first degree murder. (People v. Mesa (2012) 54 Cal.4th 191 (Mesa).) Consequently, we affirm the judgment, but modify the sentence (§ 1260) to stay the term imposed for active participation in a criminal street gang.
Around 2:30 p.m. on October 22, 1993, Stephen G. was driving an Orange County Transit bus northbound on South Flower Street in Santa Ana and waiting to turn left at the intersection. When the light turned green, a light blue compact or medium size car north of the intersection travelling south on Flower pulled away from the west curb and drove up alongside another car waiting to turn left at the intersection. The backseat passenger fired four to six shots from a handgun into the car, killing its driver and sole occupant, who was later identified as Artemio Rios (Rios). Stephen G. described the shooter as having a buzz top and "big teeth in the front, like buck teeth." The driver had a darker complexion and long, straight hair. The men appeared to be in their early 20's. Stephen G. testified three men were in the car, but he told police officers in 1993 the shooter's vehicle contained four people, two in the front and two in the back.
Jeanie W. worked at a nearby high school and was driving with a student, Jose N., south on Flower in the slow lane at the time of the shooting. She and the student ducked when they heard four or five gunshots in rapid succession. She smelled gunpowder, looked up and spotted the backseat passenger in a small white car, in the lane to her left hand a gun to a person in the front seat and say, "Here, take it. Take it. Take it." There were three males in the car, but she could not describe them. She saw a green or blue "probably [] American made car, bigger car," in the left-turn lane of Flower "at a funny angle," and recalled "it moving a little bit and then stopping." Jeanie W. told a police detective shortly after the shooting the shooter's car possibly had two doors, and contained four young people wearing white T-shirts. During a previous trial in 2002, Jeanie W. testified she saw two people in front and two people seated in the backseat of the shooter's car.
Jose N. testified he heard four to five shots and ducked after the second shot. He testified the shooter's vehicle was a small "green, gray" Honda "like '80-'89," but he told a police detective on the day of the shooting the car was blue to light gray and had two doors. Jose told the detective more than one person fired shots and "two guys [] had a gun," the driver and the front passenger. Three males, approximately 17 or 18 years old, sat in the back of the car.
Jackie B. was walking home from school when she heard gunshots, and noticed a person with a dark burgundy colored birthmark on his face sitting in the backseat of the shooter's car. After the shooting, the car sped "off quick . . . going south on Flower." She told officers on the day of the shooting the suspect vehicle was "a silver gray, four-door-style Hyundai type."
Santa Ana Police Officer Rick Reese responded to the shooting and observed Rios's champagne or light gray colored two-door Cadillac parked southbound in the left turn pocket. The driver's side door was closed, but the right front passenger door was open and the window was partially down and shattered. The right front tire was flat, and there were at least five bullet holes on the right passenger side of the vehicle. The damage was consistent with the use of more than one firearm discharging different caliber rounds. Reese found .25-caliber casings,
Reese, who worked in the Santa Ana Police Department's gang unit, knew Rios from field contacts as a member of the F Troop gang with the nickname of Hollywood. Southside was a criminal street gang that split from F Troop around 1990 and by 1993 considered F Troop a rival gang. Burciaga admitted in 1992 he belonged to Southside. The crime occurred "close by" turf claimed by the Southside gang. An autopsy confirmed Rios died from a gunshot wound to the face.
Detective Caesar Flores arrested Burciaga in 2010 for possession of a firearm following a high speed pursuit. When questioned about his reckless behavior, Burciaga explained he was "a heroin user and that may have affected him," and he had been "using drugs for seven months." Burciaga admitted he had been in the Southside gang since he was teenager, and had the nickname Boxer. At the conclusion of the interview, Burciaga asked to speak to homicide detectives because he had certain information. Flores testified Burciaga did not appear to be under the influence of heroin during the interview.
Homicide Detective McLeod conducted a recorded interview with Burciaga after the Flores interview. Burciaga expressed a desire to get his bail reduced so he could rejoin his family, including a high-school age son. He agreed to talk about "[a] few" murders. He initially denied being "at" any of the murders, but later in the interview when describing various incidents, he admitted he "shot a few people." McLeod terminated the first interview after Burciaga claimed he had surgery for a brain tumor five years earlier, claimed he was having dizzy spells. There was evidence Burciaga had consumed only a soda in the hours before being questioned. There was no evidence of physical difficulties the following day when Burciaga detailed his participation in the 1993 shooting.
In a second recorded interview the following day, Burciaga disclosed an incident in 1993 or 1994 involving "Hollywood" (Rios) from F Troop. Burciaga, Francisco Paco Meza, nicknamed Maroony because "half of [his face was] maroon," and Tony Elias, nicknamed Shadow, participated in the afternoon shooting. Burciaga did not know Shadow's name, but described him as a "[d]ark ass mother fucker." Burciaga later stated Vincente Aranda, nicknamed Joker, was also in the backseat, but "didn't do nothing." Burciaga and his companions rode in a small, stolen two-door car, a Honda Civic or Accord. While traveling on Flower they "caught" Rios, F Troop's "president," stopped in his Cadillac at a light at Flower and Segerstrom, and "unloaded on his ass." Shadow pulled their car up next to the Cadillac on the driver's side. Meza was the front seat passenger and Burciaga was in the backseat. Burciaga claimed he fired 11 or 12 rounds from a nine-millimeter handgun while Shadow or Meza also fired a handgun. Rios slumped over after the shooting.
After fleeing the scene, Shadow and Meza dropped Burciaga off, then abandoned the Honda near Warner and Raitt. Meza disposed of the guns. Burciaga explained the shooting was a "gang on gang thing" that garnered Burciaga's group and Southside considerable respect.
Jose T. was walking home from school, heard shouting and saw the shooting. He described the shooter's vehicle as gray, containing four passengers, and believed it had four doors. He heard four or five gunshots as the driver fired a small handgun at the Cadillac, he saw something hit Rios's face, and "his head just collapsed to the side. . . ." Jose T. rendered assistance to Rios, put Rios's car into park and turned off the ignition.
Following trial in November 2015, a jury convicted Burciaga as noted above. In January 2016, the court imposed a prison term of 25 years to life, plus a consecutive four-year midterm for personal discharge of a firearm (§ 12022.5, subd. (a)), and a consecutive two-year term for active participation in a criminal street gang (§ 186.22, subd. (a)). The court struck the gang enhancement (§ 186.22, subd. (b)) for sentencing purposes.
Burciaga contends his retained trial counsel rendered constitutionally ineffective assistance at trial. Defendant accuses his attorney of "being unprepared for trial and unfamiliar with salient facts, by conducting ineffective and prejudicial cross-examination, and by proffering a viable, arguable theory of innocence that any reasonable juror would have had to reject out-of-hand when counsel failed to produce any of the supporting evidence he could have proffered." The record does not support Burciaga's claim.
To establish a claim of ineffective assistance of counsel, a defendant must show counsel's representation failed to meet an objective standard of professional reasonableness resulting in prejudice to the defendant. In other words, absent counsel's deficiencies, there is a reasonable probability the result would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 689, 691-692.) A reasonable probability exists when counsel's errors undermine confidence in the outcome. (People v. Weaver (2001) 26 Cal.4th 876, 925. "In the usual case, where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions." (Id. at p. 926.) Because court's accord great deference to counsel's tactical decisions, there is a strong presumption that trial counsel's conduct falls within the wide range of reasonable professional assistance. (People v. Jones (2003) 29 Cal.4th 1229, 1254.)
Burciaga argues trial counsel failed to provide the jury with evidence to support a defense theory that Burciaga told the homicide detectives what they wanted "him to say in order to justify giving him a deal which might lead to his release and a renewed access to the heroin he craved." Burciaga complains counsel failed to present witnesses showing Burciaga was addicted to heroin, such as "witnesses who knew appellant, including his mother, other family members or any number of his associates who were mentioned and identified during the trial. . . . . He could have called a medical expert to testify about the physiological effects of heroin and heroin addiction. . . . He could have called a qualified psychologist and/or a psychiatrist to provide expert testimony about the impact of heroin on a person's memory and ability to make sound decisions and to recite facts accurately."
Burciaga's unsupported claim finds no support in the record. Nothing suggests trial counsel failed to investigate whether additional lay or expert witnesses might have supported Burciaga's defense he falsely confessed to the murder. For all we know, counsel may have thoroughly investigated the case, but could find no witnesses willing to corroborate Burciaga's claim. If a basis exists to support Burciaga's allegation, it exists outside the record. Consequently, his remedy is to file a verified petition for writ of habeas corpus. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.) From our vantage point, his claim is nothing more than unsubstantiated speculation.
Burciaga also appears to criticize trial counsel because he provided a shorter trial estimate (four days) than prior appointed counsel (seven and 10 days), counsel filed no motions in limine, and he made a motion to bifurcate even though the prosecution had not alleged prior convictions. He suggests trial counsel was "essentially unaware of what charges were about to be tried." Burciaga does not explain why a longer trial was warranted or suggest what potentially meritorious pretrial motions counsel should have raised. Counsel clearly understood his client faced a gang-related murder charge, and he tendered a defense his client did not participate in the murder because no identification or physical evidence placed him at the scene, and his statements describing the murder did not jibe with other evidence in the case. Burciaga has not established counsel's conduct in these respects failed to meet an objective standard of professional reasonableness, or that there is a reasonable probability the result would have been more favorable had counsel acted otherwise.
Defendant also complains trial counsel "made thoughtless, silly arguments. For example, counsel chastised the police for failing to obtain DNA evidence in a 22-year-old case. Not only was it unlikely that reasonable jurors would expect the police, circa 1993, to obtain DNA evidence for analysis, the mere absence of DNA evidence to contradict the appellant's own claim was not nearly of sufficient force to create traction for the defense come time for jury deliberations." It is not inconceivable the prosecution should have located the shooter's vehicle, and obtained DNA evidence from it or from bullet casings located at the scene in 1993. In any event, counsel's observation the prosecution lacked DNA evidence simply supported his argument no physical evidence placed Burciaga at the scene of the murder. Counsel's statements did not fail to meet an objective standard of professional reasonableness, nor is there a reasonable probability the result would have been more favorable had counsel not made the statements.
Burciaga also faults counsel for his questioning of Stephen G. After Stephen G. testified he did not know how many doors the shooter's vehicle had, defense counsel asked if he remembered "being interviewed on that same day by Officer Graham." Stephen G. responded he remembered being "interviewed by a female officer, yes." Counsel then asked, "Do you remember telling him that . . . you could not see into the victim's car to see how many people were in there . . .[?]" Burciaga argues counsel made a mistake concerning the gender of the officer. The record does not to our knowledge disclose whether Officer Graham was female, and whether the statement referenced by trial counsel was part of the interview referenced by Stephen G. In any event, any mistake by counsel concerning the gender of the officer does not establish a claim of ineffective assistance of counsel. Indeed, Burciaga acknowledges "this mistake" by counsel concerning the officer's gender was "relatively minor."
Defendant also faults trial counsel for asking Stephen G. whether the skin tone of the shooter was similar to Burciaga's skin color. Specifically, counsel asked whether the shooter's complexion was similar to "that person sitting there in that chair?" Stephen replied, "About, yeah." Counsel asked, "[a]bout like mine, my complexion?" Stephen stated, "I guess." Counsel replied, "[y]ou're not sure?" Stephen stated, "Well, yeah, that's about the complexion it was." Burciaga asserts this was "a clear reference to" him in court, and Stephen's response provided "the jury strong corroborative evidence implying appellant's guilt that would never have been adduced had counsel been paying attention and prepared to conduct a proper cross." Nothing in the record reflects "that person sitting there in that chair" referred to Burciaga; counsel could have been referring to another person in the courtroom. Counsel's questions tended to show the person's complexion was not an unusual facial characteristic. Burciaga has not established counsel's conduct failed to meet an objective standard of professional reasonableness.
Burciaga also asserts trial counsel's cross-examination of Jeanie W. and Jose N. "was practically non-existent and completely ineffective. The few questions counsel asked merely reinforced answers given during the prosecutor's direct examination of the witnesses. And after Detective Flores conceded on cross-examination that, when arrested in 2010, Burciaga tried to excuse his reckless driving by saying he had just used heroin, counsel failed to follow up on that concession, leaving the jury with the detective's unsolicited comment that heroin use was just one of several reasons given by appellant to excuse his misconduct."
Burciaga does not state what facts in the record show counsel failed to elicit on cross-examination that would have resulted in a more favorable outcome. Jeanie W. testified on cross-examination she thought the shooter's car had four doors, and she was not sure if it had two doors as she previously told police officers shortly after the murder. This tended to help the defense because Burciaga told homicide detectives their car had two doors. Counsel did not ask Jose N. many questions, but he did establish Jose believed there were five young males in the shooter's car, not four as defendant told detectives. In his tape-recorded interview in 1993, Jose stated he only heard four shots, not the 11 or 12 Burciaga claimed he fired. Burciaga does not explain how further cross-examination would have helped the defense. Finally, counsel established through Detective Flores that Burciaga said he had been using heroin for seven months, and this was "[a]mong other reasons" Burciaga gave for his reckless behavior. As noted, Flores did not think Burciaga was under the influence at the time of the interview. Counsel's failure to ask an apparently skeptical Flores more questions about Burciaga's drug use was not professionally unreasonable.
Burciaga also faults trial counsel's cross-examination of Detective McLeod, who interviewed Burciaga when he confessed. Burciaga argues counsel asked McLeod "questions he was not in a position to answer, and any reasonably well-trained and prepared lawyer would have known better than to do so. Counsel's comments made it manifest that, at the time he conducted his cross-examination of McLeod, he was unaware that McLeod was not only not one of the investigating officers, but McLeod was not even employed by the Santa Ana Police Department at the time of the shooting."
Counsel's cross-examination of McLeod established that Burciaga "slumped down from his . . . seat onto the floor" during the first interview, the detectives asked him if he needed medical attention, and this prompted termination of the interview. This fit with the defense theory Burciaga was suffering the effects of heroin use. Counsel also asked McLeod several questions comparing the accuracy of Burciaga's statements to other evidence in the case. After McLeod stated he "wasn't employed by the Santa Ana Police Department" at the time of the murder and had not looked at the police reports, counsel asked no further questions. The record does not establish counsel was unaware McLeod did not participate in the 1993 investigation or had not read the relevant reports. Counsel later faulted McLeod's claimed lack of knowledge about the facts of the shooting, implying the detective should have known the facts because he was "in [there] interviewing him," but instead McLeod "just flaked it off." In other words, the detectives were more interested in closing an open homicide case than in finding the person or persons who actually shot Rios because the murder was simply one "gangbanger" killing another. Counsel's questioning of McLeod did not fail to meet an objective standard of professional reasonableness, nor is it reasonably probable the result would have been more favorable for Burciaga had counsel not questioned McLeod as he did.
Burciaga also faults counsel for his cross-examination of Officer Reese, who, as noted, worked with the gang unit, responded to the shooting, and also testified as a gang expert.
Defendant also complains "counsel effectively had no case to present. The only witness he called provided what was, at most, information that was cumulative to that which had already been provided by the prosecution's eyewitnesses." In addition to cross-examining prosecution witnesses, the defense called Jose T., who saw the shooting while walking home from school, heard shouting and saw the shooting. He described the shooter's vehicle as gray, containing four passengers, and believed it had four doors. He heard four or five gunshots as the driver fired a small handgun at the Cadillac. Jose T.'s testimony differed from Burciaga's statement in several particulars, and supported the defense theory Burciaga did not participate in the murder.
Finally, Burciaga states "from the manner in which th[e] case was tried . . . retained defense counsel took someone's money and did little or nothing to earn it — conducting no pretrial investigation, doing little to familiarize himself with the witnesses and their pretrial statements, and making no attempt whatsoever to obtain manifestly available evidence by way of expert witnesses who easily could have provided credible and persuasive support for the defense theory of the case." The record contains no evidence concerning counsel's pretrial investigation, review of witness statements, and consultation with expert witnesses. Burciaga agrees counsel articulated a viable theory of the case. Counsel cross-examined prosecution witnesses and presented a witness who provided evidence consistent with that theory. Burciaga has not demonstrated counsel's representation failed to meet an objective standard of professional reasonableness, or that there is a reasonable probability the result would have been more favorable for him in the absence of the alleged deficiencies.
We invited supplemental briefing asking the parties to address whether the trial court violated section 654 by imposing a two-year consecutive term for active participation in a criminal street gang in addition to the term imposed for first degree murder. (People v. Mesa, supra, 54 Cal.4th 191.) The parties agree the court erred.
Section 654, subdivision (a), provides as relevant here: "An act or omission that is punishable different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." In Mesa, the trial court sentenced the defendant on his assault with a firearm conviction and imposed a consecutive sentence for actively participating in a gang. The Supreme Court held the trial court erred in punishing the defendant for both offenses based on the same act of shooting. (Id. at pp. 195-197.) Here, the court instructed the jury in determining whether Burciaga actively participated in the gang, the prosecution must prove he "willfully assisted, furthered, or promoted murder by members of the gang either by: [¶] a. directly and actively committing murder; [¶] OR [¶] b. aiding and abetting murder." The jury necessarily determined the same act of shooting comprised the actus reus of both offenses. The trial court therefore erred in punishing Burciaga for both murder and the substantive gang offense.
The judgment is modified (§ 1260) to stay the two-year consecutive term for active participation in a criminal street gang (count 2). In all other respects, the judgment is affirmed. The trial court is directed to correct its minutes and prepare an amended abstract of judgment, and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
MOORE, Acting P. J. and IKOLA, J., concurs.
