Filed 1/7/15 P. v. Campos CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049543

         v.                                                            (Super. Ct. No. 11CF0448)

SALVADOR GONZALEZ CAMPOS,                                              OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, W.
Michael Hayes, Judge. Affirmed.
                    Tracy A. Rogers, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, William M. Wood and Brendon W. Marshall, Deputy Attorneys General, for
Plaintiff and Respondent.
                                               INTRODUCTION
                    Defendant and appellant Salvador Campos appeals from a true finding on
an enhancement for discharge of a firearm. Specifically, he contends his lawyer should
have asked for a jury instruction on accident and that his failure to do so deprived
Campos of his right to effective assistance of counsel.
                    Campos also contends the trial court should have instructed the jury sua
sponte that personal use of a firearm is a lesser included enhancement of intentional
discharge of a firearm. Campos acknowledges that the California Supreme Court has
held otherwise in People v. Majors (1998) 18 Cal.4th 385, 410-411 and that we are
required to follow Supreme Court precedent. He raises this issue solely to preserve it.
Accordingly, we will not address this aspect of his appeal further other than to express
here our rejection of it pursuant to Majors.


                                                                 1
                                                      FACTS
                    Adolfo Acosta was the proprietor of a Santa Ana store selling audio
equipment for homes and cars. One day, Campos and a male companion were waiting
for him when he opened his door at his customary 10:00 a.m. One of the men told
Acosta that he wanted to buy a sound system for his truck. Acosta told the men to drive
the truck around to the back of the store, where he could help them. Acosta went to the
back of the store, instructed the two men how to park the truck, and went to open a shed
he used for repairs. While Acosta’s back was turned, Campos hit him on the head with a
gun. When Acosta turned around, Campos pointed the gun at his face and demanded
Acosta’s keys. Acosta refused. Campos threatened to kill Acosta, whereupon Acosta
pushed Campos’ gun hand. A shot was fired, which went into the air. Acosta then gave

         1
                    We recite the facts in the light most favorable to the judgment. (People v. Curl (2009) 46 Cal.4th
339, 342, fn. 3.)


                                                           2
Campos the money he had on hand for the store – $800. Campos ran to the truck, and
Acosta ran into the store. While he was inside the store, Acosta and his employee,
Elizabeth Chavez, heard two more shots fired. He then called 911.
                    Acosta had motion-activated video surveillance cameras mounted both
inside and outside the store. The cameras captured the robbery, but because of the
motion activation, the playback was not a continuous one.
                    Campos was arrested and charged with attempted murder (Pen. Code, §§
                2
187, 664) , two counts of assault with a firearm (§ 245), second degree robbery (§§ 211,
212.5), grossly negligent discharge of a firearm (§ 246.3), and attempt to dissuade a
witness (§ 136.1, subd. (c)(1)). Because he had a prior felony conviction, he was charged
with unlawful possession of a firearm, carrying a loaded firearm in public, and possession
of ammunition (now §§ 29800; 25850, subd. (c)(1); 30305). Use and discharge of
firearm enhancements were added to several counts, including the robbery count
(§§ 12022.5, subd. (a); 12022.53, subds. (b), (c)).
                    At trial, Acosta and Chavez testified, as did three Santa Ana police
            3
officers. The video of January 19, 2011, was played in court, and Acosta identified the
                                      4
person in the video as Campos. The defense put on no witnesses.
                    After the parties rested, the court dismissed the charge of attempting to
dissuade a witness, pursuant to a section 1118.1 motion. The jury acquitted Campos of
attempted murder. It returned guilty verdicts on all the other counts and true findings on
all the remaining firearm enhancements.




        2
                All further statutory references are to the Penal Code.
        3
                One officer testified about the prohibited weapons and ammunition found in Campos’ car and
residence. Another testifying officer was the detective who investigated the robbery.
         4
                The video showed Acosta coming out of the back of the store, Campos hitting him on the head,
Campos pointing the gun at him, and Acosta running back into the store. There was no audio.


                                                      3
                                                DISCUSSION
                  The basis of Campos’ appeal is his counsel’s failure to request a pinpoint
jury instruction for the discharge of a firearm enhancement to the robbery count.
According to Campos, his lawyer should have asked the judge for an instruction on
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accident as negating the intent element of section 12022.53, subdivision (c). He now
suggests CALCRIM No. 3404 provided the template for the instruction that should have
                    6
been requested. Campos must rely on ineffective assistance of counsel to support this
argument because the trial court has no sua sponte duty to instruct on accident. (People
v. Anderson (2011) 51 Cal.4th 989, 996-998.)
                  A criminal defendant is constitutionally “entitled to be assisted by an
attorney, whether retained or appointed, who plays the role necessary to ensure that the
trial is fair.” (Strickland v. Washington (1984) 466 U.S. 668, 685.) It is not enough that
the attorney be present; his or her assistance must also be “‘adequate.’” (Id. at p. 686,
quoting Cuyler v. Sullivan (1980) 446 U.S. 335, 344.) “The benchmark for judging any
claim of ineffectiveness must be whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having
produced a just result.” (Ibid. )
                  “[S]crutiny of counsel’s performance must be highly deferential. It is all
too tempting for a defendant to second-guess counsel’s assistance after conviction or
adverse sentence, and it is all too easy for a court, examining counsel’s defense after it
has proved unsuccessful, to conclude that a particular act or omission of counsel was

         5
                   Section 12022.53, subdivision (c), provides: “Notwithstanding any other provision of law, any
person who, in the commission of a felony specified in subdivision (a), personally and intentionally discharges a
firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years.”
Subdivision (a) includes robbery. (Id., subd. (a)(4).)
         6
                   CALCRIM No. 3404 provides in pertinent part: “The defendant is not guilty of _____________
<insert crime(s)> if (he/she) acted [or failed to act] without the intent required for that crime, but instead acted
accidentally. You may not find the defendant guilty of ______ <insert crime[s]> unless you are convinced beyond
a reasonable doubt that (he/she) acted with the required intent.”


                                                         4
unreasonable. [Citation.] A fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’ [Citation.]” (Strickland v. Washington, supra, 466 U.S.
at p. 689; see People v. Ledesma (1987) 43 Cal.3d 171, 216.) On direct appeal, when no
explanation for counsel’s conduct can be found in the record, “we must reject a claim of
ineffective assistance of counsel unless counsel was asked for and failed to provide a
satisfactory explanation, or there simply is no satisfactory explanation.” (People v. Scott
(1997) 15 Cal.4th 1188, 1212; see People v. Mai (2013) 57 Cal.4th 986, 1009.)
              Defense counsel had a tough row to hoe, considering that Campos was
caught on video hitting Acosta on the head with a gun and pointing the gun at his face.
There was not much point in disputing the robbery or assault charges in light of the video
evidence, and counsel did not try to do so. Instead, he tried to minimize the damage by
casting doubt on whether Campos actually fired the gun he held. In fact, counsel built
most of the defense on discrediting the two witnesses who said the gun was fired. He
bore in on Acosta during cross-examination, in part to establish that Acosta could not tell
a Glock from a water pistol and in part to establish that events could not have unfolded as
Acosta claimed. He also quizzed the investigating police officer about shell casings,
bullet holes, gun powder residue, singed hair, and reports of shots fired from the
surrounding businesses and apartments – all with an eye to establishing that Campos
never fired the gun.




                                              5
               During closing argument, counsel in essence conceded the robbery and
assault charges. He did not concede attempted murder, discharging a firearm with gross
negligence, and the discharge of a firearm enhancement. Counsel’s main argument to the
jury – the essence of his trial strategy – was that Campos never fired the gun. He told the
jury, “There is really only one actual issue that we’re here to determine: whether or not
that gun went off. [¶] . . . [¶] The issue of the gun is everything in this case. 100 percent
everything.”
               Counsel argued to the jury that Acosta made up the detail of the gun going
off in order to get the police to take his case seriously. He lied about the gun going off in
order to get press coverage for the robbery. He induced Chavez to lie about what she saw
on the day of the robbery. He made her lie about hearing the shots. No physical
evidence established any gunshots.
               Campos asserts on appeal that because during closing argument counsel
raised the possibility that the gun had been discharged, he should therefore have asked for
the jury instruction regarding accident. Counsel did indeed twice raise the possibility that
the gun had been fired. The first time, he did so only to dismiss it. “What if you think
maybe Mr. Acosta might have been telling the truth? . . . [¶] So let’s look at all the
circumstances which might say the gun was actually discharged. . . . [¶] Well, Mr.
Acosta was scared. . . . Well, sure, he had a gun pointed at him, but it doesn’t mean that it
was discharged. And that same fear gets turned on its head when you watch the action
[on the video] after the gun was actually discharged when he was robbed. The guy is not
– the guy is fighting back against a person who he is claiming shot at him deliberately.
You’re willing to take a bullet so he doesn’t have to sacrifice his keys basically is what
he was saying. . . . [¶] Is it reasonable to conclude that the gun actually went off? Or is
all – or is it also equally safe to assume – to conclude that the gun didn’t go off based on
that?”


                                              6
                  Counsel raised the possibility that Campos fired the gun for the second time
in connection with his closing argument on the attempted murder count. At first, he
again dismissed the possibility. After all, he said, only Acosta said the gun had been
fired. But even if the jury, against all reason, believed the lying Acosta, firing the gun
did not prove attempted murder. A robber must come to the scene suitably accoutered, to
convince his potential victim that he means business. He has to carry a gun. He may
                                                                                         7
even have to fire the thing to give verisimilitude to the proceedings. But that does not
mean he intended to kill his victim, one of the elements of attempted murder.
                  After this foray in to the hypothetical, counsel quickly returned to his main
theme as he addressed negligent discharge of a firearm. If the gun went off, where are
the spent bullets? Then came the peroration: “Mr. Campos is not guilty of negligent
discharge of a firearm. Mr. Campos did not discharge a firearm in the course of the
robbery. Mr. Campos did not discharge a firearm in the course of an attempted murder.”
Counsel wound up his argument with a resounding “He didn’t fire that gun.”
                  Having based nearly the entire defense on a denial that Campos ever fired
his gun, counsel could reasonably have believed a jury instruction about a discharge by
accident would undercut his theory of the case. He never elicited any evidence the gun
went off accidentally. His entire focus during the trial was casting doubt on Acosta’s
and Chavez’s testimony about the gunshots and the lack of physical evidence – no
bullets, no shell casings, no reports of shots fired, no singed hair or eyebrows. When he
argued to the jury, he emphasized the improbability of Acosta’s and Chavez’s stories and
the lack of corroborating evidence. He never once conceded that Campos’ gun went off,
intentionally or accidentally. A jury instruction regarding accident would have tacitly
admitted a fact antithetical to the entire defense case – that Campos fired the gun. In

         7
                    Contrary to Campos’ claim on appeal, his counsel did not characterize the hypothetical gun
discharge as accidental. He referred to it in the context of “bringing something with you [to a robbery] that gets
attention,” rather than as part of a plot to murder someone. “The gun going off unfortunately is incidental to a
robbery which did not go the way Mr. Campos wanted it to go.”


                                                          7
constructing the defense in this way, counsel appears to have relied on Campos’ own
version of events; at the sentencing hearing, Campos was still maintaining he had not
fired the gun.
                 The difference in trial strategy makes Campos’ reliance on People v. Jones
(1991) 234 Cal.App.3d 1303, overruled in People v. Anderson (2011) 51 Cal.4th 989,
misplaced. In Jones, “the primary thrust of the defense mounted by the defendant in trial
was that the shotgun discharged by accident, as a result of being struck by [the police
officer].” (People v. Jones, supra, 234 Cal.App.3d at p. 1314.) The primary thrust of
Campos’ defense was that the gun had never been fired at all. Even suggesting that the
discharge was accidental undermined this defense.
                 Given our deferential review of an attorney’s trial strategy, we cannot here
find ineffective assistance of counsel. No one asked Campos’s counsel why he chose this
tack, and there is a satisfactory explanation for his choice. He believed he could create a
reasonable doubt that the gun went off and obtain a “not true” finding on the discharge of
a gun enhancement. This belief turned out to be wrong, but it was not unreasonable.
                 Because we conclude that Campos failed to overcome the presumption of
sound trial strategy or to demonstrate a performance below an objective standard of
reasonableness, we do not need to address the second prong of ineffective assistance of
counsel: prejudice to the defendant or a more favorable outcome. (See People v. Stanley
(2006) 39 Cal.4th 913, 954.)




                                                8
                                  DISPOSITION
            The sentence enhancement for discharge of a firearm is affirmed.




                                             BEDSWORTH, ACTING P. J.

WE CONCUR:



IKOLA, J.



THOMPSON, J.




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