Filed 6/28/13 P. v. Booker CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

DEQUINTE TERRELL BOOKER,

Defendant and Appellant.

 D061584

 (Super. Ct. No. FSB052555)

APPEAL from a judgment of the Superior Court of San Bernardino County, 

Brian S. McCarville, Judge. Affirmed as modified.

Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, Barry J. Carlton and Sharon L. 

Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Dequinte Terrell Booker of, among other things, the attempted 

murder of Albert Valdez. In a prior appeal, we rejected his challenges to the jury's 
2

verdicts, but found the trial court had erred by failing to conduct a postverdict hearing 

under People v. Marsden (1970) 2 Ca1.3d 118 (Marsden). (People v. Booker (Oct. 28, 

2009, D054608 [nonpub. opn.], as modified Nov. 19, 2009; (the Prior Opinion).) On 

remand, the trial court granted Booker's Marsden motion, but denied his motion for 

new trial.

Booker appeals, contending that the trial court improperly denied his new trial 

motion based on (a) alleged error under Brady v. Maryland (1963) 373 U.S. 83 

(Brady), (b) false testimony, and (c) ineffective assistance of counsel. He also 

contends that cumulative errors committed by the trial court, the prosecutor, and his 

trial counsel require reversal of the judgment. Finally, he claims the trial court 

committed a number of sentencing errors.

We reject Booker's contention that the trial court improperly denied his new 

trial motion. As we explain below, the trial court erred in resentencing Booker and we 

affirm the judgment as modified.

FACTUAL AND PROCEDURAL BACKGROUND

We repeat most of the background facts from our prior opinion:

"At about 1:00 a.m. on February 2, 2005, Darlene Gasca and Albert Valdez, Jr. 

were walking down 9th Street in San Bernardino toward Gasca's home. The IE 

Projects, an African-American criminal street gang, claimed the area as part of their 

territory. Gasca and Valdez saw a group of Black men and heard someone yell: 

'Who's that?' or 'Who are you?'
3

"Valdez described the person who spoke to them as a Black man in dark 

clothing. Valdez replied 'who are you,' turned and walked away, and then heard 

gunshots. Valdez hid behind a car, and then got shot in the leg and chest after he got 

up to knock on the door of a house. Gasca heard the gunshots, but did not see the 

shooter.

"An information charged Booker with attempted premeditated murder (count 

1), two counts of being a felon in possession of a firearm (counts 2 and 3), possession 

of cocaine base (count 4), possession of a controlled substance with a firearm (count 

5), participating in a criminal street gang (count 6) and possession of ammunition by a 

felon (count 7). Count 1 carried various firearm enhancements and counts 1-3 alleged 

that Booker committed the crimes for the benefit of a criminal street gang. The 

information also alleged that Booker had suffered a prior serious or violent felony 

conviction and a prior strike conviction.

"At trial, Valdez stated that he did not see the type of gun his assailant fired. 

He claimed that he did not see the shooter and could not identify Booker, but denied 

being afraid of identifying Booker. Valdez could not remember picking Booker out of 

a photographic lineup, but a police officer later testified that Valdez picked out 

Booker's photograph and claimed he was 'pretty sure' that the person in the photograph 

was the shooter. When the police officer asked Valdez to document his identification 

by initialing the photograph or circling the number, Valdez refused because he feared 

retaliation.
4

"Hope Webb, a paid FBI gang informant, lived near 9th Street in San 

Bernardino and allowed IE Projects gang members to use her home. Webb testified 

that she has known Booker for a long time, knew he was an IE Projects gang member 

and that he used the street name 'Mook.' Before the shooting, Webb was home with 

Booker and several other people. Webb saw Booker with a handgun and an assault 

rifle and watched him put bullets inside the gun while wearing gloves. Booker then 

left with several other people while carrying the assault rifle. Webb heard shooting 

coming from 9th Street and then saw Booker return to the house all hot and sweaty, 

like he had been running. Booker put the rifle in a shed outside Webb's home.

"Booker left Webb's house and returned the next afternoon to retrieve the rifle 

from the shed. At some point, Webb heard Booker say, 'did you see how he fell when 

I shot him?' About an hour after the shooting, Webb telephoned her FBI contact, 

Special Agent James Manzi, and told him in a hysterical voice that Booker had just 

shot someone near her house with a rifle. Special Agent Manzi considered Webb to be 

a very reliable informant." (Prior Opinion at pp. 2–4.)

The jury found Booker guilty of attempted premeditated murder (count 1), two 

counts of being a felon in possession of a firearm (counts 2 and 3), participating in a 

criminal street gang (count 6) and possession of ammunition by a felon (count 7). It 

also found true all the enhancement allegations. In the Prior Opinion, we rejected his 

challenges to the jury's verdicts, but found the trial court had erred by failing to 

conduct a postverdict Marsden hearing. (Prior Opinion at p. 22.) On remand, the trial 

court granted Booker's Marsden motion, but denied his motion for new trial on the 
5

ground any withheld evidence would not have changed the outcome of the trial. 

Booker again appealed.

DISCUSSION

I. Denial of New Trial Motion

A. General Legal Principles

We review "a trial court's ruling on a motion for new trial . . . under a 

deferential abuse of discretion standard. [Citation.]" (People v. Hoyos (2007) 41 

Cal.4th 872, 917, fn. 27.) "The appellant has the burden to demonstrate that the trial 

court's decision was 'irrational or arbitrary,' or that it was not ' "grounded in reasoned 

judgment and guided by legal principles and policies appropriate to the particular 

matter at issue." [Citation.]' " (People v. Andrade (2000) 79 Cal.App.4th 651, 659.)

B. Alleged Brady Error

1. General Legal Principles

"In Brady, the United States Supreme Court held that 'the suppression by the 

prosecution of evidence favorable to an accused upon request violates due process 

where the evidence is material either to guilt or to punishment, irrespective of the good 

faith or bad faith of the prosecution.' [Citation.] Thus, under Brady and its progeny, 

the state is required to disclose to the defense any material, favorable evidence. 

[Citations.] Favorable evidence includes both evidence that is exculpatory to the 

defendant as well as evidence that is damaging to the prosecution, such as evidence 

that impeaches a government witness. [Citations.]" (People v. Uribe (2008) 162 

Cal.App.4th 1457, 1471–1472.) Materiality "requires more than a showing that the 
6

suppressed evidence would have been admissible [citation], that the absence of the 

suppressed evidence made conviction 'more likely' [citation], or that using the 

suppressed evidence to discredit a witness's testimony 'might have changed the 

outcome of the trial' [citation]. A defendant instead 'must show a "reasonable 

probability of a different result." ' [Citation.]" (People v. Salazar (2005) 35 Cal.4th 

1031, 1042–1043 (Salazar).)

There are three elements to a Brady claim: (1) the evidence must be favorable 

to the accused, either because it is exculpatory, or because it is impeaching; (2) that 

evidence must have been suppressed by the State, either willfully or inadvertently; and 

(3) defendant suffered prejudice. (Salazar, supra, 35 Cal.4th at p. 1043.) "Prejudice, 

in this context, focuses on 'the materiality of the evidence to the issue of guilt or 

innocence.' [Citations.]" (Ibid.) "'In general, impeachment evidence has been found 

to be material where the witness at issue "supplied the only evidence linking the 

defendant(s) to the crime," [citations], or where the likely impact on the witness's 

credibility would have undermined a critical element of the prosecution's case, 

[citations]. In contrast, a new trial is generally not required when the testimony of the 

witness is "corroborated by other testimony," [citations].' [Citation.]" (Id. at p. 1050.) 

"Conclusions of law or of mixed questions of law and fact, such as the elements of a 

Brady claim [citation], are subject to independent review. [Citation.] Because the 

[trier of fact] can observe the demeanor of the witnesses and their manner of testifying, 

findings of fact, though not binding, are entitled to great weight when supported by 

substantial evidence." (Id. at p. 1042.)
7

2. Webb's Drug Cases

a. Facts

In May and August, 2004, Webb suffered two arrests for possession of cocaine 

and possessing cocaine base for sale (case numbers FSB045972, FSB045478). In 

August and October, 2004, she failed to appear in court and bench warrants were 

issued for her arrest. In October 2004, the FBI recruited Webb as a confidential 

informant.

In November 2004, police cited Webb for misdemeanor driving under the 

influence of drugs (case number TVA92359). She failed to appear at her December 

2004 arraignment and a bench warrant was issued for her arrest. On February 2, 2005, 

Webb reported the shooting to Special Agent Manzi. Booker was arrested a few days 

later. About two weeks later, Webb was arrested on her outstanding warrants. Webb 

appeared in court the following day on all three cases.

Notes from the district attorney's files dated in February and March, 2005, 

reveal that the district attorney needed to "[c]heck out" Webb's "FBI story." In case 

number FSB045478, Webb was offered "PG 11351 180 (wkends ok)." The district 

attorney's files for case number FSB045972 included a case history sheet with four 

entries dated between February 28, 2005 and March 21, 2005 as follows: (1) "check 

out [defendant's] FBI/SBPD story," and "Rejects HS 11351/180"; (2) "FBI/SBPD 

story is bogus"; (3) "Judge Reily says [defendant] must do Inroads"; and 

(4) "[defendant] rejects: on record 11366/INROADS."
8

On March 28, 2005, Deputy District Attorney Annamarie Pace indicated that a 

plea agreement had been reached and that the plea was to count 1 and to driving under 

the influence, "120 OR/Cruz w/e Dism other fel + misd." On the lined piece of paper, 

Pace had written on May 2, 2005, "[defendant] FTA" and "[No] bail"; and on June 17, 

2005, "Plea changed to 109," "CTS 73+36 = 109," "informal prob 3y," "Terms 1, 2, 

10," and "This b/c [defendant] is a Fed snitch + her life is in danger. Also, feds have 

something on her to hang over head. [Defendant] to be relocated."

On March 28, 2005, Webb pleaded guilty in case number FSB045972. Under 

the terms of the plea bargain, the court granted the People's motion to dismiss count 1, 

ordered Webb to serve 109 days in jail, and placed her on three years' probation. On 

June 17, 2005, under the plea bargain in case number FSB045972, the court granted 

the People's motion to dismiss case number TVA92359. In August 2006, the FBI 

terminated Webb as an informant and she is relocated. In January 2007, Booker's trial 

began.

b. Analysis

Booker contends that the trial court erred in denying his new trial motion 

because court records and the prosecutor's files outlined above reveal that Webb 

received reduced charges or immunity from prosecution. He claims that Webb 

received a deal on her drug cases because she was a "snitch" and the "feds had 

something to hang over her head." Booker contends that this evidence and the 

evidence of the drug charges constituted impeachment evidence withheld by the 

prosecution that was different from the impeachment evidence presented at trial. 
9

As we shall explain, we conclude Booker failed to show that the prosecution 

suppressed the evidence.

Before trial, the prosecutor revealed that Webb had a 2005 misdemeanor DUI 

conviction, that she was on probation for a minimum of three years and had possession 

cases in Texas in 2006. The court later obtained records in case number FSB045972 

and informed counsel that in June 2005, Webb was placed on probation and that she 

was "charged with a felony and failed to appear on a few occasions, plead out 

somewhere, she got three years probation, violate no law, 109, credit for 109, search 

terms, and $110 to the victim restitution fund. Possible Cruz waiver violation. Plead 

guilty to a deuce."

This record confirms that defense counsel was on notice to examine Webb's 

criminal history. Simply put, there is no Brady claim of prosecutorial suppression of 

evidence "'when information is fully available to a defendant at the time of trial and 

his only reason for not obtaining and presenting the evidence to the Court is his lack of 

reasonable diligence. . . .' " (People v. Morrison (2004) 34 Cal.4th 698, 715, quoting 

United States v. Brown (5th Cir. 1980) 628 F.2d 471, 473.)

3. Webb's Drug Use

a. Facts

Records from law enforcement agencies in Texas revealed that in March 2006, 

Webb was arrested for possession of a controlled substance. During her arrest, Webb 

claimed that she was an FBI informant and that she needed to " 'be dirty' " for potential 
10

cocaine buyers to believe she was " 'legit.'" In October 2006, Webb was again arrested 

for possession of a controlled substance.

At the beginning of trial, the prosecutor disclosed that Webb had possession 

cases in Texas in 2006. Defense counsel later acknowledged that he had received 

paperwork showing two convictions in 2006 that were purportedly felonies, but were 

treated as misdemeanors under Texas law. Defense counsel, however, was unsure 

whether Webb was still on probation. The prosecutor indicated that she had provided 

a "faxed copy from the court in Texas regarding [Webb's] priors," and suggested an in 

camera hearing might be held. Although the court declined to hold an in camera 

hearing regarding whether Webb received a deal, defense counsel later spoke to 

Special Agent Manzi and learned that the FBI was not involved in brokering a deal 

with Webb for her problems in Texas. Defense counsel indicated that he was "willing 

to accept that representation as being a fact in the case." The prosecutor and defense 

counsel later spoke to the prosecuting attorney in the Texas cases who confirmed that 

Webb had two felony convictions, that her sole punishment was jail time, and that she 

had not received any special disposition. Defense counsel stated he verified "that in 

fact this was nothing special in the way of disposition; that in fact, based upon the 

circumstances and the quantity of drugs involved, that this was a pretty much standard 

outcome, at least as far as these two cases were concerned."

b. Analysis

Booker contends the prosecutor withheld information that Webb continued to 

use drugs in Texas in the months before his trial commenced. The People respond that 
11

the prosecutor did not have a duty to search for and disclose Webb's criminal history in 

Texas because Texas law enforcement agencies were not involved in the prosecution 

or investigation of appellant's case. We agree with the People.

Under Brady, the prosecution is obligated to locate and turn over evidence that 

is "known to the others acting on the government's behalf in the case." (Salazar, 

supra, 35 Cal.4th at p. 1042.) Thus, the evidence must be "possessed by a person or 

agency that has been used by the prosecutor or the investigating agency to assist the 

prosecution or the investigating agency in its work." (People v. Superior Court 

(Barrett) (2000) 80 Cal.App.4th 1305, 1315 (Barrett).) Here, the prosecutor satisfied 

her duty to disclose that Webb had possession cases in Texas in 2006. Moreover, the 

parties had the opportunity to investigate the Texas cases during trial and defense 

counsel was convinced that Webb received no special treatment. Because Booker 

made no showing that Texas law enforcement agencies were part of the prosecution 

team, the prosecutor did not have a duty to search for more information about Webb's 

Texas crimes. (Barrett, supra, 80 Cal.App.4th at p. 1315.)

4. Special Agent Manzi

a. Facts

At trial, Special Agent Manzi testified that Webb was an informant from 

October 2004 until August 2006, when the FBI closed her file and relocated Webb for 

her safety. During that period, Special Agent Manzi paid her about $17,000. Special 

Agent Manzi testified that he wrote reports about the information Webb provided on 

February 2 and 8, 2005, relating to this case, which were produced. After determining 
12

that Webb provided credible information, he submitted paperwork to the FBI, received 

a check, gave cash to Webb and had her sign a receipt.

At the hearing on Booker's new trial motion, defense counsel explained that he 

had subpoenaed Special Agent Manzi to appear and produce certain records, but the 

United States Department of Justice objected, stating in a letter that counsel had not 

followed proper procedures. Defense counsel asked for a continuance, but 

alternatively stated that he was ready to go forward if the court was inclined to deny a 

continuance. Defense counsel explained that while Special Agent Manzi testified at 

trial, Special Agent Manzi was not asked whether he knew about Webb's drug cases 

and probation violation, that counsel wanted to prove that Special Agent Manzi 

violated federal guidelines regarding confidential informants, and wanted to obtain 

payment records to determine when Webb received her payments. The court granted 

the continuance and asked the prosecutor to "cooperate in endeavoring to make the 

FBI employee available."

At the continued hearing about four months later, the trial court heard testimony 

from Booker and Booker's trial counsel. Defense counsel also asked the court to admit 

into evidence the subpoena duces tecum he had served on Special Agent Manzi and a 

letter from the United States Department of Justice stating that the subpoena did not 

comply with federal regulations for obtaining the records. The trial court, however, 

sustained a relevancy objection, finding that counsel had plenty of time to comply with 

the requirements.
13

b. Analysis

Booker contends that Special Agent Manzi was part of the prosecution team 

and that the prosecution had an obligation to turn over impeachment evidence on 

Special Agent Manzi including information in Special Agent Manzi's files on Webb 

that would have shown that Special Agent Manzi had been less than candid at trial or 

Webb to be untruthful. As a threshold matter, the Attorney General did not address 

Booker's assertion that Special Agent Manzi was part of the prosecution team. 

However, we need not decide whether the FBI constituted part of the prosecution team 

acting on the behalf of the State of California, because even assuming so, Booker's 

claim fails because the evidence does not meet the materiality prong necessary to 

prove a Brady violation.

As we previously indicated, before trial began, the prosecutor revealed that 

Webb had a 2005 misdemeanor DUI conviction, that she was on probation for a 

minimum of three years and had possession cases in Texas in 2006. The court later 

obtained records in case number FSB045972 and informed defense counsel regarding 

Webb's failures to appear, plea, and probation. The prosecutor also spoke to the 

prosecuting attorney in the Texas cases, who confirmed that Webb had two felony 

convictions, that her sole punishment was jail time, and that she had not received any 

special disposition. Additionally, defense counsel spoke to Special Agent Manzi and 

learned that the FBI was not involved in brokering a deal with Webb for her problems 

in Texas. Thus, defense counsel was well aware of information to impeach Webb and 
14

could have easily cross-examined Special Agent Manzi regarding his knowledge of 

this impeachment evidence.

Booker next asserts he presented credible allegations of misconduct by Special 

Agent Manzi and that the prosecution's failure to rebut his allegations "regarding 

[Special Agent] Manzi's misconduct constitutes a substantial basis for finding a Brady

violation regarding [Special Agent] Manzi as a witness." Stated differently, Booker 

asserts that the prosecution knew Special Agent Manzi committed misconduct and 

thus had a duty to disclose this information to the defense for the purpose of 

impeaching Special Agent Manzi.

We reviewed Booker's new trial motion to ascertain what evidence Booker 

claims the prosecution had regarding misconduct by Special Agent Manzi. In his new 

trial motion, Booker never alleged that Special Agent Manzi had committed 

misconduct. Rather, he claimed that Special Agent Manzi vouched for Webb but 

never testified about helping Webb stay out of jail on active warrants while he used 

her, the timing of Webb's payments, whether Webb was telling the truth when she said 

he never paid her rent and violations of federal guidelines for handling confidential 

informants. Simply put, in his new trial motion, Booker never alleged or presented 

any evidence that Special Agent Manzi committed misconduct. Accordingly, he did 

not show the existence of any of the three elements necessary for a Brady claim. 

(Salazar, supra, 35 Cal.4th at p. 1043.) (Although the new trial motion referenced 

declarations by attorneys Congdon and Jones, no such declarations were part of the 

new trial motion. Attorneys Congdon and Jones filed declarations to support Booker's 
15

"Marsden" motion. We have reviewed those declarations and find no evidence of 

misconduct by Special Agent Manzi.)

Booker suggests that Special Agent Manzi violated federal guidelines requiring 

that federal agents investigate the criminal history of a proposed informant. He 

contends his allegations were sufficient to require that the prosecution produce Special 

Agent Manzi and his files and, had this happened, the information obtained would 

have been favorable to his defense. Booker's argument is based entirely on 

supposition regarding the contents of Special Agent Manzi's files. Special Agent 

Manzi testified at trial and could have been asked about his files and knowledge of 

Webb's criminal history. Booker has not shown that anything in Special Agent 

Manzi's files was favorable to him or that these files were suppressed within the 

meaning of Brady.

Finally, Booker claims the prosecution continued to suppress Special Agent 

Manzi's testimony and files at the motion for new trial and this conduct constitutes a 

continuing Brady violation. Booker, however, did not raise this issue in his new trial 

motion and forfeited the claim. In any event, at the hearing of the new trial motion, 

the court sustained a relevancy objection to the admission of a subpoena requesting 

Special Agent Manzi's appearance and files, finding that counsel had plenty of time to 

comply with federal requirements. Booker has not shown that counsel complied with 

all federal requirements or that the government's failure to produce these records 

amounted to a Brady violation.
16

C. Webb's Testimony

Booker alleges that Webb lied when she claimed that she had been sober for six 

months because she had been arrested in Texas for possessing crack within that period. 

He also claims that Webb lied when she stated that she worked as an informant to 

make money and to clean up her neighborhood. He contends that even if the 

testimony did not amount to an explicit lie, the testimony was so misleading that it 

amounted to false evidence under Brady and Napue v. Illinois (1959) 360 U.S. 264 

(Napue). Namely, the prosecution's own files revealed that Webb received numerous 

benefits in criminal cases from the San Bernardino District Attorney's office. Booker 

acknowledges that his counsel did not press for a ruling on his Napue claim at trial, but 

asserts he did not forfeit the claim because it is a federal constitutional claim based on 

undisputed facts and because counsel's failure to pursue the claim was prejudicially 

ineffective. 

For purposes of analysis, we will assume, without deciding, that Booker did not 

forfeit this claim. Nonetheless, we reject the claim on its merits.

The use of perjured testimony to obtain a conviction violates due process. 

(Napue, supra, 360 U.S. at p. 269; People v. Marshall (1996) 13 Cal.4th 799, 829–

830.) That principle applies even if the false testimony goes only to witness credibility 

since the "jury's estimate of the truthfulness and reliability of a given witness may well 

be determinative of guilt or innocence." (Napue, supra, at p. 269.) To prevail on a 

Napue claim, the defendant must show that (1) the testimony (or evidence) was 

actually false, (2) the prosecution knew or should have known that the testimony was 
17

actually false, and (3) that the false testimony was material. (United States v. ZunoArce (9th Cir. 2003) 339 F.3d 886, 889.)

The fatal flaw in Booker's argument is his failure to show that Webb testified 

falsely; rather, he surmises that Webb testified falsely based on other information in 

the record. Webb testified at trial that she had been sober for six months and that she 

was still clean and sober. Her arrest in Texas for possession within that period 

undercuts her credibility, but does not show that she lied about her sobriety. Similarly, 

the drug charges pending against Webb during the time she acted as in informant 

undercuts her testimony that she worked as an informant to clean up her neighborhood, 

but does not show this testimony was false. Put differently, only Webb herself knows 

the true facts about her sobriety and whether part of her intent in working as an 

informant was to clean up her neighborhood. Attorneys "may ethically present 

evidence that they suspect, but do not personally know, is false." (People v. Riel

(2000) 22 Cal.4th 1153, 1217.) Accordingly, there was no Napue violation.

Analyzing Booker's claim under Brady, he has not shown that Webb's alleged 

false testimony was suppressed because defense counsel knew about the evidence that 

Booker now claims allegedly contradicted Webb's trial testimony. The prosecutor 

disclosed when trial commenced that Webb had possession cases in Texas in 2006. 

Defense counsel later acknowledged that he received paperwork showing two 

convictions in 2006 that were purportedly felonies, but were treated as misdemeanors 

under Texas law. The prosecutor and defense counsel later spoke to the prosecuting 

attorney in the Texas cases, who confirmed that Webb had two felony convictions, that 
18

her sole punishment was jail time, and that she had not received any special 

disposition. Defense counsel also knew about the drug charges pending against Webb 

during the time she acted as an informant as the prosecutor revealed Webb's 2005 

misdemeanor DUI conviction and the trial court obtained records in Webb's 2004 

possession of cocaine case and informed defense counsel about the outcome of the 

case.

D. Alleged Ineffective Assistance of Counsel

To establish ineffective assistance of counsel, a defendant bears the burden of 

showing that counsel's performance was deficient, falling below an objective standard 

of reasonableness under prevailing professional norms, and that absent counsel's error, 

it is reasonably probable that the verdict would have been more favorable. (People v. 

Hernandez (2004) 33 Cal.4th 1040, 1052–1053.) " 'If the record does not shed light on 

why counsel acted or failed to act in the challenged manner, we must reject the claim 

on appeal unless counsel was asked for and failed to provide a satisfactory 

explanation, or there simply can be no satisfactory explanation.' " (Id. at p. 1053.) 

"We presume that counsel rendered adequate assistance and exercised reasonable 

professional judgment in making significant trial decisions" (People v. Holt (1997) 15 

Cal.4th 619, 703) and will reverse on the ground of inadequate assistance of counsel 

only if the record affirmatively discloses that counsel had no rational tactical purpose 

for his act or omission (People v. Zapien (1993) 4 Cal.4th 929, 980). Generally, the 

failure to impeach a witness involves tactical decisions on counsel's part and seldom 

establishes a counsel's incompetence. (People v. Frierson (1979) 25 Cal.3d 142, 158.)
19

In his new trial motion, Booker asserted that his trial counsel was prejudicially 

ineffective for, among other things, failing to investigate Webb and impeach her at 

trial regarding local and Texas criminal charges against her and prior inconsistent 

statements she made about the shooting. He also pointed out that the prosecution used 

Special Agent Manzi to bolster Webb's credibility, but his trial counsel never asked 

Special Agent Manzi if he knew about Webb's criminal history.

At the hearing on the motion, the trial court heard testimony from Booker and 

Booker's prior trial counsel, and proposed defense witness Dewayne Riley. During 

argument on the motion, new defense counsel pointed out that because the victim 

could not identify Booker as the shooter, the case came down to Webb's testimony. 

He noted that Booker's trial counsel never cross-examined Webb about her criminal 

history, questioned Webb about her changed stories about the shooting and that the 

failure to present this impeachment evidence was prejudicial. The trial court found 

Booker's trial counsel was not ineffective because Webb was impeached at trial and 

the additional impeachment evidence would not have resulted in a different outcome.

1. Failure to Impeach Webb

Our discussion of the alleged Brady errors shows that defense counsel knew 

about potential impeachment evidence regarding Webb including her 2005 

misdemeanor DUI conviction and the resolution of case number FSB045972 in June 

2005, including Webb's failures to appear, plea, and probation. Defense counsel also 

knew of Webb's 2006 possession cases in Texas that were treated as misdemeanors 
20

under Texas law. Our review of the record shows that defense counsel never 

attempted to impeach Webb with this criminal history.

Subject to the trial court's discretion under Evidence Code section 352, the 

California Constitution, article I, section 28, subdivision (f), "authorizes the use of any 

felony conviction which necessarily involves moral turpitude, even if the immoral trait 

is one other than dishonesty. On the other hand, subdivision (d), as well as due 

process, forbids the use of convictions of felonies which do not necessarily involve 

moral turpitude." (People v. Castro (1985) 38 Cal.3d 301, 306.) Possession of drugs 

for sale is a crime of moral turpitude (People v. Harris (2005) 37 Cal.4th 310, 337); 

however, simple possession of narcotics is not a crime of moral turpitude (People v.

Castro, supra, 38 Cal.3d at p. 317).

Given Webb's criminal history, the sole felony conviction available for 

impeachment was her guilty plea in case number FSB045972 for possessing cocaine 

base for sale. At a minimum, this conviction undercut Webb's credibility because she 

testified that her desire to clean up her neighborhood partially motivated her to work as 

an informant. Nonetheless, defense counsel could have reasonably determined that 

impeaching Webb on this specific point was not critical given her testimony that she 

was a drug addict, her drug of choice was cocaine, in March of 2005 she was on 

probation and she was in jail after the events she testified to took place. (People v. 

Frierson, supra, 25 Cal.3d at p. 158 [failure to impeach a witness usually involves a 

tactical decision and seldom establishes a counsel's incompetence].) On this record, 
21

we cannot say that defense counsel's failure to impeach Webb regarding her conviction 

for possessing cocaine for sale affected the verdict.

Booker also asserted that counsel was ineffective because he failed to question 

Webb regarding her changed stories about the shooting. Our review of the record does 

not support his assertion that Webb's recitation of the shooting changed over time.

Special Agent Manzi's notes, transcribed about a week after the shooting, state 

that Webb informed him that Booker "shot [a] Mexican Male." Specifically, she 

related how Booker went into her back bedroom to load a rifle, that he wiped 

fingerprints from the bullets and wore gloves. Booker left her home, she heard shots a 

few minutes later and then saw Booker return out of breath and sweating profusely. 

Booker put the rifle in the back bedroom and then moved it to a shed after Webb 

complained. Booker left and a few minutes later she "heard that Booker had just shot 

a Mexican male in the street." Booker later returned and removed the rifle. At trial, 

Webb similarly testified that she observed Booker in her back bedroom wearing gloves 

and loading a rifle with bullets that had been wiped clean. Booker left with the rifle, 

she heard shots, Booker came back to the home out of breath and sweating and she 

saw him put the rifle inside a shed after she refused to allow him to leave it inside the 

house.

Webb also testified that either after the shooting or when Booker retrieved the 

rifle, she heard Booker say, " 'D[id] you see how he fell when I shot him?' " While 

Webb apparently did not inform Special Agent Manzi of Booker's statement during 

her phone call to him after the shooting, she informed the prosecutor of this statement 
22

during a pretrial interview. Accordingly, the failure of defense counsel to question 

Webb regarding her changed stories was not prejudicial because Webb's stories did not 

change.

2. Failure to Cross-Examine Special Agent Manzi

Booker also complains that the prosecution used Special Agent Manzi to bolster 

Webb's credibility, but defense counsel never asked Special Agent Manzi if he knew 

about Webb's criminal history. We believe defense counsel could have reasonably 

decided to not question Special Agent Manzi on this specific point because Webb 

testified that she was on probation in 2005 and in jail after the events she testified to 

took place. Special Agent Manzi also testified on direct that "most" informants have a 

criminal history, but this usually does not impact the ability to use the person as an 

informant. Moreover, had defense counsel specifically asked Special Agent Manzi 

about Webb's criminal history, he would have likely repeated what he said at the 

preliminary hearing, namely that he believed Webb had a history for possessing 

controlled substances, disorderly conduct and a couple DUI's, but he could not recall 

off the top of his head whether Webb had any felony convictions.

Defense counsel may well have concluded that asking Special Agent Manzi 

about Webb's criminal history added little value to the defense given the evidence 

already in the record on this topic and Special Agent Manzi's admission that most 

informants have a criminal history. Accordingly, we conclude that Booker failed to 

show that the omission was an unreasonable tactical choice that affected the verdict.
23

3. Failure to Interview Dewayne Riley

Booker claims defense counsel was ineffective because he failed to interview 

Dewayne Riley, an exculpatory witness who testified at the evidentiary hearing on the 

new trial motion that Booker was not present at Webb's house on the night of the 

shooting. First, Booker has not affirmatively shown that defense counsel failed to 

interview Riley. Rather, at the hearing on the new trial motion, defense counsel 

testified that he did not have a specific recollection whether Booker asked him to 

locate Riley, but claimed that if a specific name was mentioned that he would have 

requested that his investigator try to locate the person.

Even assuming defense counsel failed to have his investigator attempt to locate 

Riley, it is not reasonably probable that Riley's testimony would have resulted in a 

more favorable verdict. Riley testified that he was in Webb's living room when he 

heard the gunshots and that Booker was not inside Webb's house with him at the time 

of the shooting. If anything, this testimony supports Webb's testimony that Booker 

was the shooter. While Riley also claimed Booker was not at Webb's house on the day 

of the shooting or the days prior to and after the shooting, Riley was never asked if he 

was continuously at Webb's home those days. Accordingly, his statement that he did 

not see Booker those days had little value. Moreover, had Riley testified, it is likely 

the prosecutor would have elicited testimony that Riley was a former "Projects" gang 

member that was facing 255 years in prison for his recent convictions and that Riley 

denied Booker's membership in the "Projects" gang. Counsel could have reasonably 

determined that having Riley testify did not further Booker's defense.
24

II. Cumulative Error

Booker argues his trial was rendered fundamentally unfair by cumulative error. 

Specifically, he contends the cumulative errors demonstrated by the motion for new 

trial, the declarations and exhibits filed in support of that motion, and the testimony

presented at the evidentiary hearing show a reasonable likelihood he would have 

gotten a different result had jurors heard all the available impeachment on Webb and 

Special Agent Manzi.

As we detailed above, we have not found any prejudicial errors committed by 

the trial court, the prosecutor, or defense counsel. As Booker failed to persuade us that 

any error occurred, his cumulative error argument is meritless. (People v. Heard

(2003) 31 Cal.4th 946, 982.)

III. Alleged Sentencing Errors

In the prior appeal, we found two sentencing errors and issued directions on 

how to correct the errors. (Prior Opinion at p. 22.) We directed that if the new trial 

motion is filed and denied, then "the judgment and sentence previously imposed, as 

modified herein, shall be reinstated." (Prior Opinion at p. 23.) After the trial court

denied Booker's new trial motion, it resentenced Booker on all counts. Booker 

appealed a number of sentencing issues. We requested supplemental briefing from the 

parties on whether the trial court exceeded the scope of our remand order by 

resentencing Booker on all counts. Assuming the trial court exceeded the scope of our 

remand order, the parties were asked to address how this impacted the various 

sentencing issues raised by both parties in this appeal.
25

The parties agree that the trial court exceeded the scope of our remand order by 

resentencing Booker. The People assert that the resentencing minute order and 

amended abstract of judgment contain a number of clerical errors that need to be 

corrected and improperly omitted a mandatory five-year term for Booker's prior 

serious felony conviction. Rather than correct these errors, we vacate the resentencing 

minute order dated January 20, 2012 and amended abstract of judgment filed March 

15, 2012. This moots the sentencing issues raised by Booker on counts 3 and 6 and 

the issue raised by the People regarding the mandatory five-year term for Booker's 

prior serious felony conviction. The trial court is directed to reinstate the original 

sentence as to counts 3 and 6 and this enhancement.

When the trial court originally sentenced Booker, it erroneously failed to 

mention count 7. The parties agree that the proper sentence on count 7 is a 

consecutive term of one year, four months.

In the Prior Opinion on count 2, we directed the trial court to exercise its 

discretion under subdivision (b)(1)(A) of Penal Code section 186.22 to impose a two, 

three or four-year term on this enhancement. Accordingly, the trial court had 

jurisdiction to resentence Booker on this enhancement. In her supplemental report, the 

probation officer recommended that the trial court impose the four-year upper term for 

the gang enhancement. At resentencing, the trial court informed the parties that it had 

read and considered the probation report. The trial court imposed the middle term for 

the substantive charge on count two, but imposed the upper term for the gang 

enhancement. Booker, however, did not object.
26

Booker now claims the trial court erred by failing to give its reasons for 

sentencing him to the upper term on the gang enhancement as to count 2. The People 

assert Booker forfeited his claim by failing to object below and any error was 

harmless, as the probation officer found factors in aggravation, and none in mitigation. 

Assuming, without deciding, that the contention is not forfeited, we agree that the error 

was harmless.

The trial court is required to state on the record its reasons for selecting the 

upper term. (Pen. Code, § 1170, subd. (b).) "However, where the sentencing court 

fails to state such reasons, remand for resentencing is not automatic; we are to reverse 

the sentence only if 'it is reasonably probable that a result more favorable to the 

[defendant] would have been reached in the absence of the error.' " (People v. Sanchez

(1994) 23 Cal.App.4th 1680, 1684.) Here, the trial court heard the testimony and 

considered the probation report. The probation officer noted no factors in mitigation, 

but a number of aggravating factors including prior convictions of increasing 

seriousness, unsatisfactory prior performance on probation and parole, a prior prison 

term, and the nature and circumstances of the crime. A single factor in aggravation is 

sufficient to justify an upper term on an enhancement. (People v. Brown (2000) 83 

Cal.App.4th 1037, 1043.) On this record, we agree with the People, it is not 

reasonably probable that the trial court would have been unable to state adequate 

reasons to impose the upper term on the gang enhancement. Accordingly, we deny 

Booker's request to remand this issue to the trial court for a statement of reasons.
27

DISPOSITION

The resentencing minute order dated January 20, 2012 and amended abstract of 

judgment filed March 15, 2012 are vacated. The sentencing issues raised by Booker 

on counts 3 and 6 and the issue raised by the People regarding the mandatory five-year 

term for Booker's prior serious felony conviction are moot. The trial court is directed 

to reinstate the original sentence as to these counts and the enhancement.

On count 7, the trial court is directed to impose a consecutive term of one year, 

four months. In all other respects, the judgment is affirmed. The trial court is directed 

to prepare and forward to the Department of Corrections and Rehabilitation an 

amended abstract of judgment reflecting the changes in the sentence set forth in the 

Prior Opinion and herein.

MCINTYRE, J.

WE CONCUR:

MCCONNELL, P. J.

NARES, J.