P. v. Verdin 4/19/07 CA2/8

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B183508

Case Date: 08/16/2007

Preview:Filed 4/19/07 P. v. Verdin CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

THE PEOPLE, Plaintiff and Respondent, v. SAMUEL ELIAS VERDIN et al., Defendants and Appellants.

B183508 (Los Angeles County Super. Ct. No. LA045733)

APPEALS from judgments of the Superior Court for the County of Los Angeles. John Fisher and Katheryne Stoltz, Judges. Affirmed.

Alisa A. Shorago, under appointment by the Court of Appeal, for Defendant and Appellant Samuel Elias Verdin.

Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant Paymen Pat Parvizi.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

We reject Samuel Verdin's challenge to his conviction for the attempted murder of his cousin. We also reject Paymen Parvizi's challenge to his conviction for assault by means likely to produce great bodily injury (of Verdin's cousin), being a felon in possession of a firearm, and evading a police officer. Neither appellant demonstrates prejudicial error. We affirm both judgments. PROCEDURAL BACKGROUND Initially, both Samuel Verdin and Paymen Parvizi were charged with the attempted murder of Ricardo Alvarez Ponza (Alvarez). It was further alleged that a principal personally and intentionally discharged a firearm within the meaning of Penal Code section 12022.53, subdivisions (b), (c), (d), and (e)(1) and that a principal was armed with a firearm within the meaning of section 12022, subdivision (a)(1). It also was alleged that the crime was committed for the benefit of a street gang within the meaning of section 186.22, subdivision (b)(1)(A). It was alleged that Verdin suffered from two prior felonies within the meaning of section 1203, subdivision (e)(4) and that he did not remain free from prison within the meaning of section 667.5, subdivision (b). It also was alleged that Verdin suffered a prior serious or violent felony or juvenile adjudication. The prosecution dismissed the attempted murder charge with respect to Parvizi. He was charged with assault by means likely to cause great bodily injury in violation of section 245, subdivision (a)(1), and it was alleged that crime was for the benefit of a gang as defined in section 186.22. Parvizi also was charged with evading an officer in violation of Vehicle Code section 2800.2, subdivision (a) and for possession of a firearm by a felon in violation of section 12021, subdivision (a)(1). It was further alleged that Parvizi suffered four prior felony convictions, including two prior serious or violent felony convictions.
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Undesignated statutory citations are to the Penal Code. 2

The jury found Verdin to be guilty of attempted murder. The jury found the premeditation allegation to be not true. It could not reach a verdict on the gang allegation, and the court declared a mistrial on that allegation. The jury found true that Verdin personally and intentionally discharged a handgun and that he inflicted great bodily injury. Verdin admitted he suffered one prior serious or violent felony within the meaning of the "Three Strikes" law. Verdin was sentenced to seven years for the attempted murder, which was doubled pursuant to the admitted strike allegation. Five years was added for the section 667, subdivision (a)(1) prior for a total 19 year determinate term. In addition, Verdin was sentenced to 25 years to life for the gun allegation. The jury convicted Parvisi of evading an officer, possession of a firearm by a felon, and assault by means likely to produce great bodily injury. The jury further found that the assault was committed for the benefit of a criminal street gang as defined by section 186.22, subdivision (b)(1)(A). The jury found true the allegation that Parvizi suffered two prior serious or violent felonies. Parvisi was sentenced to 25 years to life for the assault by means likely to impose great bodily injury plus an additional five years for the section 667, subdivision (a)(1) prior. With respect to the other counts, the court struck both the strike priors and imposed a consecutive eight month sentence for evading an officer and a concurrent two year sentence for possession of a firearm by a felon. Each appellant filed a timely notice of appeal. FACTUAL BACKGROUND Verdin's Trial On April 15, 2004, in an alley near Kester and Vanowen, Verdin, aka Heist, and two friends, Iglu and Skrapie, fought Ricardo Alvarez Ponza (Alvarez aka Risky), Verdin's first cousin. The fight occurred in an alley and ended when Verdin shot Alvarez twice, the second time in the head. Alvarez survived, but was severely injured. When interviewed by police, Verdin admitted that he shot Alvarez first in the legs and then "because he was mad, shot him in the face." In that interview, Verdin described a conflict with Alvarez "for years . . . ." Verdin asked Alvarez to leave him alone. 3

Alvarez shot at Verdin's house. "They are like, I'll do it in front of your mom right there in your house. I'll shoot her and this and that." On April 14, 2004, Alvarez tried "to run me [Verdin] over" and threatened Verdin with a gun. On the 15th, Alvarez was initially fighting Iglu "basically what it is, it's jealousy." Then Verdin and Skrapie came. Sandman (Parvisi) was near the mouth of the alley. Verdin used Alvarez's gun to shoot Alvarez. Verdin was not armed. Verdin explained: "[w]e started fighting . . . I was just . . . beating him up . . . bad." "I was mad . . . I was high . . . I shot like at his leg. . . . Then I shot him in the face." When they were fighting, Alvarez's gun fell. . . . " Alvarez just stood there after Verdin fired a shot at the ground. Verdin agreed that he was mad so he fired one more shot. Verdin said "Ain't no snitching off because I did it . . . I did it." "I shot him." After shooting Alvarez, Verdin gave the gun either to Skrapie or Iglu, and told him to get rid of it. Benjamin Densmore, who lived near the alley, observed five or six people beating up one person. Densmore then heard two or three shots and called 911. Deon Lofton also saw one person being beaten up in the alley. Someone then picked the victim up and held him against a fence. Lofton then heard a gunshot. The person who was beat up never fought back. Verdin did not testify in his defense. Verdin's mother testified that Verdin said he acted in self-defense. She also testified that Alvarez told her nothing would have happened if "it weren't for his own fault." Ada Escobar testified that the night before the shooting Alvarez was using methamphetamine and gave his gun to a girl. Parvisi's Trial On April 15, 2005, officer John Ewald found Alvarez in an alley barely breathing. He had a gunshot wound to his head. Erica Sayler lived in the area of Kester and Vanowen. She noticed five or six men walking down the street together. They escorted someone into the alley. Sayler called the police because she thought someone was going to get beat up. One person who was similar in height and weight to Parvisi was walking back and forth at the end of the ally and looking around. The person who was beaten was not fighting back. Sayler heard 4

shots and then saw the group of men run out of the alley. Deon Lofton also could see the fight from his window. He saw five guys beating up one guy. He never saw a one-onone fight. Alvarez testified that, on the day he was shot, Parvisi was acting as a lookout. Parvisi had told Alvarez that he wanted to talk to him. According to Alvarez, Parvisi was not a member of the DSM gang but Parvisi's son, Robert Rios aka Iglu, was a member of the gang.2 According to Alvarez, he did not have a gun, but Verdin had one. Officer Luis Alarcon testified that Alvarez previously stated Parvisi displayed a gun before accompanying Alvarez into the alley. Verdin testified for the defense. According to him, on April 15, 2004, he saw Alvarez and Iglu (Parvisi's stepson) fighting. Parvisi told Verdin not to get involved in the fight. Verdin ignored Parvisi's request. Alvarez started fighting with Verdin and pulled out a gun. Verdin managed to get a hold of Alvarez's gun and shot Alvarez in self-defense. Verdin first shot a warning shot but then when Alvarez came after him shot him in the face. Parvisi testified in his defense. He testified that he asked Alvarez to fight his stepson in order to jump his son out of the DSM gang. Alvarez agreed to fight Iglu. Verdin later appeared with Skrapie and Parvisi told them to stay out of the fight. A girl gave Alvarez a gun and Alvarez said "I'm going to smoke somebody." Parvisi did not know that Verdin or Skrapie would be there. Officer Luis Alarcon testified that Alvarez said the fight was initially between him and Iglu. Parvisi also testified with respect to the counts of evading a police officer and being a felon in possession of a firearm. He testified that he did not hear the police siren and did not know the police were pursuing him. As soon as he understood that he was being pursued, he pulled over his motorcycle and stopped. Parvisi testified that when he was stopped by police he was not in possession of a gun. Parvisi's wife testified that
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There was evidence that Iglu was actually Parvisi's stepson, but Alvarez referred to him as Parvisi's son. 5

Parvisi had attempted to remove gang tattoos from one of his stepsons and did not want his children involved with gangs. Officer Mathew Garza pursued Parvisi and testified that Parvisi accelerated at a high speed away from a marked police vehicle. According to Garza, Parvisi reached speeds of 60 to 70 miles per hour in residential neighborhoods, ran several red lights, and drove on the wrong side of the road. Garza testified that he recovered a loaded semiautomatic weapon from Parvizi's waistband. Officer Luis Alarcon had previously unsuccessfully tried to catch Parvisi. Officer Joshua Ordonez testified as a gang expert. He testified that Parvisi is not a member of the DSM gang but associates with the gang. Verdin, Skrapie, and Iglu were members of the DSM gang. According to Ordonez, if Parvisi asked Alvarez to jump Iglu out of the gang, that is inconsistent with Alvarez being beaten up. However, Ordonez opined that the fight was gang related because Parvisi was acting as a lookout to assist the criminal conduct of gang members in assaulting Alvarez and had helped in getting Alvarez to the alley. According to Ordonez, beating up Alvarez would assist the gang because it "would get rid of the weakest link in that gang in order for that gang to stay strong." DISCUSSION Parvisi contends: (1) he was prejudiced when the court conducted a hearing on a Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)) outside his presence; (2) the court should have instructed the jury on self-defense; (3) evidence that Sayler was afraid to testify was improperly admitted; (4) his counsel rendered ineffective assistance; (5) the prosecutor committed misconduct; and (6) cumulative error requires reversal. Verdin contends: (1) the prosecutor committed misconduct; (2) evidence of Alvarez's fear was improperly admitted; (3) documents related to the gang allegation were improperly admitted; and (4) cumulative error requires reversal.

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I. Pitchess Motion (Parvisi) There was not sufficient notice of the Pitchess motion for Parvisi to catch the bus to go to court. The court indicated it would proceed preliminarily in Parvisi's absence. On appeal, Parvisi argues that he was denied his constitutional and statutory right to be present when the court held a hearing with respect to his Pitchess motion. At the hearing outside of Parvisi's presence, the prosecutor argued that the motion, filed a few days before trial, was untimely. Defense counsel explained that he had just recently been informed by Parvisi that the officers planted the gun on him. According to defense counsel, he had focused primarily on the attempted murder charge (which eventually was dismissed) not the evasion of an officer charge. The court denied the Pitchess motion as untimely, in part reasoning that it did not make sense Parvisi would wait until just before trial to inform counsel that the police planted a gun on him. In a subsequent Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118 (Marsden)), Parvizi disputed counsel's recollection of events. According to Parvisi, he told counsel "since day one that, `I did not have a gun and the police officer planted this gun.' " Parvisi indicated that he told his attorney, "He planted a gun and . . . please to do a Pitchess motion." Counsel responded to Parvisi's statements, and the court then gave Parvisi a second opportunity to present his version of events. The court did not believe Parvisi's account and expressly found that he lacked credibility. Subsequently, in the presence of Parvisi, the court summarized the Pitchess motion and elaborated on its findings. The court stated that defense counsel indicated he had recently been told the gun was planted and therefore filed a Pitchess motion. The court stated that at the Marsden hearing it made a credibility finding that it "did not believe the defendant." "I'm going to also now incorporate that finding in my ruling on the Pitchess hearing that I don't believe the defendant. That's independent of a secondary or separate reason why I denied the Pitchess motion then and why I continue to deny it." Parvisi argues that he was harmed by the initial hearing outside his presence because "[b]y the time appellant finally had an opportunity to learn what his counsel had 7

said, the court had already decided that appellant was not credible." His subsequent "ability to alter the court's impression of his credibility was substantially impaired, as the court had already made up its mind, before hearing from appellant, that counsel's explanation of the delay in filing the Pitchess motion was correct." The record does not support Parvisi's argument. Although Parvisi was not present at the initial hearing, the court twice revisited the issues surrounding the Pitchess motion in Parvisi's presence. When Parvisi was available, the court afforded him an opportunity to dispute counsel's version of events and to describe his view of the situation. Parvisi attempted to persuade the court that he immediately informed counsel that the gun was planted. The court's ultimate finding that Parvisi lacked credibility does not show the court was unwilling to consider his version of events. II. Self-defense Instruction (Parvisi) When it instructed the jury, the trial court omitted the following paragraph from CALJIC No. 9.00: "A willful application of physical force upon the person of another is not unlawful when done in lawful [self-defense] [or] [defense of others]. The People have the burden to prove that the application of physical force was not in lawful [selfdefense] [defense of others]. If you have a reasonable doubt that the application of physical force was unlawful, you must find the defendant not guilty." Contrary to Parvisi's argument, the court correctly omitted the foregoing paragraph describing self-defense. There was evidence in Parvisi's trial that Verdin acted in self-defense. Specifically, Verdin testified that he wrestled the gun from Alvarez and then shot Alvarez in self-defense. But, there was no evidence that Parvisi acted in selfdefense or in defense of another. Parvisi testified that he did not know that Verdin would participate in the fight and that he told Verdin not to fight. If his testimony is believed, it shows that Parvisi did not have the mens rea to aid and abet the assault of Alvarez. It does not provide any evidence that Parvisi acted in self-defense. The fact that Parvisi was not charged with the attempted murder of Alvarez further supports the trial court's conclusion that the self-defense instruction was inappropriate. Verdin's testimony was that he acted in self-defense when he shot Alvarez, not when he 8

initially entered the fight. There was no evidence that the assault, for which Parvizi was charged, was in self-defense. III. Testimony Regarding Fear (Parvizi and Verdin) Our high court has held that "[e]vidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible." (People v. Burgener (2003) 29 Cal.4th 833, 869.) When evidence is admitted for that purpose, the jury should be instructed that the evidence is admitted for a limited purpose. (See id. at p. 870 [noting the "jury was promptly and correctly instructed as to the limited purpose of the evidence"].) A. Parvisi's Trial When Erica Sayler took the stand, the prosecutor's first question was "Ms. Sayler, is it fair to say you'd rather not be testifying here today?" Defense counsel objected. That objection was overruled and Sayler answered affirmatively. Objections to subsequent similar questions were sustained. Subsequently, without objection, Sayler testified that she was scared for her safety at the time she witnessed the fight. Sayler did not specifically identify Parvisi and the prosecutor asked her if she was scared to identify anyone. Sayler answered negatively. Then the prosecutor asked "[d]id you earlier tell me you were scared to come to court and testify?" and "Do you have some fear?" No objection was made and Sayler answered those questions affirmatively. With one exception, the court sustained objections to the prosecutor's questions of whether Sayler would rather not be testifying. No objection was made to the questioning of Sayler regarding her fear of testifying. The objection to those questions is therefore forfeited. (People v. Samuels (2005) 36 Cal.4th 96, 113.) In any event, even if we consider Parvisi's argument on the merits, it is not persuasive. Parvisi argues the evidence of Sayler's fear was irrelevant. He argues that "[t]he risk that the jury will interpret a witness's fear as due to intimidation by the defendant requires the exclusion of testimony about fear where that testimony is not needed to preclude erroneous inferences from a witness's change in testimony." He further argues that the improper testimony "contributed to the image of appellant as a 9

dangerous man, which aided the prosecution's portrayal of him as someone with continuing gang ties rather than as a father seeking to get his stepson out of a gang." Under People v. Burgener, supra, 29 Cal.4th 833, 869 the evidence was properly admitted but should have been accompanied with a limiting instruction. The absence of a limiting instruction did not prejudice Parvisi. Sayler's testimony about a general fear did not in any manner intimate that Parvisi had threatened her or otherwise attempted to suppress her testimony. Sayler's testimony without any reference to gangs did not, as Parvisi argues, suggest that he is "someone with continuing gang ties." The prosecutor did refer to Sayler as "an objective, third-party witness who didn't want to be here." But that statement did not suggest that Parvisi had threatened Sayler or otherwise portray Parvisi negatively. In addition, as the Attorney General points out, the other eye witness Leon's testimony was consistent with Sayler's testimony. B. Verdin's Trial In Verdin's trial, there was testimony that Alvarez was afraid of testifying and that he had applied to be in a witness protection program. Verdin argues that there was no evidence that threats occurred or that he had any role in them. He argues that the evidence "was likely to improperly create sympathy for Alvarez with the jurors. . . ."3 The evidence was properly admitted to show Alvarez's state of mind. However, as Verdin argues, the court should have instructed the jury that the evidence was admitted for a limited purpose. (People v. Burgener, supra, 29 Cal.4th at p. 870.) The absence of the limiting instruction did not deprive him of a fundamentally fair trial. The evidence in Verdin's trial, including his own confession, was overwhelming. In his own trial, Verdin did not testify in his defense. The record provides no basis for his speculation that the jury could have improperly considered Alvarez's fear of testifying to render him a sympathetic witness and therefore convict Verdin of attempted murder. The prosecutor

Contrary to the Attorney General's argument, this contention was not forfeited. Counsel objected to the admission of the evidence in the trial court sufficiently to preserve the issue for review. 10

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expressly told the jury, albeit in another context, that the instruction "directs you to, you know, make your decision in this case not based on an emotional argument or on prejudice or on sympathy for somebody or dislike for somebody else. We want you to make this decision on the facts of this case and the evidence that came out." IV. Ineffective Assistance of Counsel (Parvizi) Parvisi argues that his counsel was ineffective in (1) failing to file a timely Pitchess motion; (2) diluting the standard of reasonable doubt; (3) failing to object to evidence that he was a murder suspect; and (4) failing to object to prosecutorial misconduct. We discuss the first three arguments in this section and consider the last in the next section. To show ineffective assistance of counsel, a defendant must demonstrate (1) counsel's performance fell below an objective standard of reasonableness and (2) absent the deficiency, it is reasonably probable the defendant would have achieved a more favorable outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) A reasonable probability is one sufficient to undermine confidence in the outcome of trial. (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Ledesma, supra, 43 Cal.3d at p. 218.) In assessing a claim of ineffective assistance of counsel, counsel's reasonable tactical decisions are afforded great deference. (People v. Weaver (2001) 26 Cal.4th 876, 925.) Counsel's decision making must be evaluated in the context of the available facts. (Id. at p. 926.) "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." (Ibid.) A. Alleged Failure to File a Timely Pitchess Motion In explaining the delay in filing a Pitchess motion, defense counsel indicated that he initially focused on the attempted murder charge originally filed against Parvisi and subsequently dismissed, not on the charge of evading an officer. Defense counsel believed there was a strong defense to the attempted murder charge and no similar 11

defense to the charge of evading an officer. Parvisi argues that his counsel's failure to focus on any charge other than the attempted murder charge constituted ineffective assistance of counsel. Parvisi implies but does not show that counsel was deficient in his investigation. While Parvisi states that counsel should have questioned him immediately about the circumstances of his arrest, there is no evidence that counsel failed to conduct an adequate investigation. The trial court specifically rejected Parvisi's statement that he told counsel from the start that the gun was planted and the delay in filing a Pitchess motion was therefore a result of Parvisi's conduct, not of counsel's conduct. Counsel's decision must be considered in the light of the available facts, and when viewed in that light, Parvisi has shown no error. B. Alleged Dilution of Reasonable Doubt Standard Parvisi argues his counsel was ineffective for diluting the reasonable doubt standard through the following example provided at voir dire: "And every time the D.A. puts on some evidence that leads you to believe he's guilty, you drop a penny on one side of the scale, and every time you hear something that leads you to believe maybe the person is not guilty, you drop a penny on the other side of the scale. [

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