People v. Duggan, 031519 CAAPP3, C079809

Docket Nº:C079809
Opinion Judge:HOCH, J.
Party Name:THE PEOPLE, Plaintiff and Respondent, v. ROBERT DUANE DUGGAN, Defendant and Appellant.
Judge Panel:We concur: RAYE, P. J., MURRAY, J.
Case Date:March 15, 2019
Court:California Court of Appeals
 
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THE PEOPLE, Plaintiff and Respondent,

v.

ROBERT DUANE DUGGAN, Defendant and Appellant.

C079809

California Court of Appeals, Third District, Butte

March 15, 2019

NOT TO BE PUBLISHED

Super. Ct. No. CM041015

HOCH, J.

Defendant Robert Duane Duggan forced his way into Robert Bledsoe's apartment and shot him 10 times with a semi-automatic handgun, including once in the right eye. Bledsoe survived the attempt on his life, but lost his eye. Defendant was convicted by jury of attempted murder, mayhem, possession of a firearm by a convicted felon, and possession of cocaine. With respect to the first two counts, the jury also found defendant personally and intentionally discharged a firearm causing great bodily injury. In a bifurcated proceeding, the trial court found true an allegation defendant served a prior prison term for a 2007 grand theft conviction. Defendant was sentenced to serve an aggregate indeterminate term of 32 years to life consecutive to an aggregate determinate term of 4 years.

On appeal, defendant contends: (1) his trial counsel provided constitutionally deficient assistance by failing to consult with and retain an expert in blood spatter analysis or accident reconstruction; (2) the trial court prejudicially erred and violated his federal constitutional rights by instructing the jury to consider the level of certainty with which an eyewitness made an identification in evaluating the accuracy of that identification; (3) various sentencing errors occurred; and (4) we must also remand the matter for a new sentencing hearing because Senate Bill 620 (Reg. Sess. 2017 - 2018), which became effective January 1, 2018 and gives the trial court discretion to strike a firearm enhancement in the interest of justice, applies retroactively to cases not yet final on appeal.

We shall affirm defendant's convictions and remand the matter for resentencing. With respect to the convictions, we conclude defendant's ineffective assistance claim is not cognizable on appeal. We must reject defendant's challenge to CALCRIM No. 315's inclusion of certainty as a factor to be used in evaluating the accuracy of an identification, that challenge having previously been rejected by our Supreme Court. With respect to sentencing, we conclude the matter must be remanded to the trial court for resentencing. Finally, while we also conclude Senate Bill 620 (Reg. Sess. 2017 - 2018) applies retroactively to defendant's case, we decline to remand for an exercise of discretion regarding the firearm enhancement because the trial court indicated it would not have stricken that enhancement had it possessed such discretion at the time it as imposed.

FACTS

At about 3:00 a.m. on April 12, 2014, Bledsoe was sleeping on his couch when he awoke to the sound of someone trying to open his front door. When he got up and opened the door, defendant was standing there, wearing a dark hooded sweatshirt and dark gloves, and holding a semiautomatic handgun. Bledsoe knew defendant as, “Young Rob, ” having met him through friends, but did not know him very well. As Bledsoe explained, “he was just someone that was along with other people” at various “party-type” and “get-together-type situations.” When Bledsoe saw the gun, he tried to close the door, but defendant used his foot to prevent the door from closing. While pushing against the door, Bledsoe asked what defendant wanted. Defendant said Bledsoe owed him money, which was not true.

Defendant then forced his way into Bledsoe's apartment. While Bledsoe was not certain, he believed defendant shot him through the door in order to gain entry into the apartment. Bledsoe believed this because he weighed 360 pounds at this point in his life, whereas defendant was a much smaller man and would not have been able to overpower him otherwise. Once inside, a physical altercation ensued between the front door and the kitchen. As Bledsoe explained: “When he came in, we kind of tussled, and I remember grabbing him -- or grabbing his arms as he was coming in and then from that point, I remember a lot of gunfire, flashes, the smell of gun smoke, and feeling this, like, heat, ... it was just like a hard hit and then I felt real warm.” Multiple rounds hit Bledsoe in the chest, his left leg, and left arm. One round hit him in the shoulder and another hit him in his right eye. At some point during the barrage of bullets, Bledsoe fell face down onto the kitchen floor. He reached up to use the counter to try to pull himself to his feet, but was unable to move his legs. Defendant then fired a final round into Bledsoe's back before leaving the apartment.

Bledsoe managed to crawl out of his front door and call out for help. One of his neighbors, who heard the gunshots and subsequent cries for help, told her daughter to call 911 and then came outside to find Bledsoe on his front porch. He was covered in blood and “one of his eyes was hanging out” of its socket. The neighbor also flagged down a passing car and told the driver someone had been shot and to call 911. The neighbor then ran back to Bledsoe and tried to calm him down while they waited for the ambulance.

Police and emergency medical personnel arrived a short time later. One of the responding officers, who accompanied Bledsoe to the hospital in the ambulance, asked Bledsoe if he knew who shot him. Bledsoe identified the shooter as, “Young Rob, ” someone he knew “from around the area.” After determining defendant lived in the area and went by that name, a photographic lineup including defendant's photo was prepared and administered at the hospital. Bledsoe identified defendant as the shooter in that lineup. Defendant was arrested in his car in front of his house about 45 minutes after the shooting. He had in his possession a useable amount of cocaine.

The following evidence corroborates Bledsoe's identification of defendant as the shooter. Bledsoe was shot with 9-millimeter rounds. While the weapon used to shoot him was not recovered, a video on defendant's cell phone, taken five days before the shooting, showed defendant firing a Springfield XD 9-millimeter semiautomatic handgun in a field. Ten rounds were fired in the video. When the video was recorded, the cell phone's GPS locator was activated. A detective went to those GPS coordinates, which corresponded to the field depicted in the video, and recovered ten 9-millimeter shell casings. A forensic analysis of the shell casings recovered from the field and those recovered from Bledsoe's apartment indicated both sets of casings were fired from the same gun.1

We recite the evidence adduced during the defense case in the discussion portion of the opinion, to which we now turn.

DISCUSSION

I

Ineffective Assistance of Counsel

Defendant contends his trial counsel provided constitutionally deficient assistance by failing to consult with and retain an expert in blood spatter analysis or accident reconstruction, asserting this expert would have concluded and testified defendant would likely have had blood on him and been injured in the struggle with Bledsoe. This contention is not cognizable on appeal.

A.

Additional Background

The defense case consisted of evidence that defendant did not have any blood on him when he was arrested following the shooting, no bloody clothing was recovered from his house, there was no blood in his car, the only apparent injury to defendant was “slight redness to his left forearm, ” and no gunshot residue testing was performed. The defense also adduced evidence that Bledsoe's apartment was near California State University, Chico, and the area would have been busy with nightlife between the hours of 11:30 p.m. and 2:30 a.m. the night of the shooting. From this, defense counsel argued there was a reasonable doubt about defendant's identity as the shooter, especially in light of the violent altercation Bledsoe described and the substantial amount of blood found in his apartment. However, as mentioned, the shooting occurred at about 3:00 a.m. and defendant was not arrested in front of his house until about 3:45 a.m. The prosecution also established it would have taken only “7-10 minutes” for defendant to drive home from Bledsoe's apartment, and argued during closing argument that defendant therefore “would have had time to shower, change his clothes, get rid of his clothes” before he was taken into custody.

B.

Analysis

A criminal defendant has the right to the assistance of counsel under both the Sixth Amendment to the...

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