Filed 1/24/20 P. v. Rooney CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSEPH WILLIAM ROONEY,

Defendant and Appellant.

B291147

Los Angeles County

Super. Ct. No. BA461162

APPEAL from a judgment of the Superior Court of Los Angeles County, Kathleen Kennedy, Judge. Affirmed as modified.

Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

A jury convicted defendant and appellant Joseph William Rooney—a Los Angeles Police Department (LAPD) officer—of two counts of assault with a firearm on Oleksandr Kozorez. The jury found true allegations that Rooney personally used a firearm in the commission of the crimes. On appeal, Rooney asserts the trial court should have excluded improper lay opinion testimony, his lawyer was constitutionally ineffective for failing to object to the testimony, the trial court abused its discretion in declining to strike the firearm enhancement, and his sentence violated Penal Code sections 954 and 654. Rooney also asks us independently to review the transcript of an in camera hearing on any necessary disclosure of crimes of moral turpitude by prosecution and defense witnesses. We have done so and find there was nothing to disclose. The parties agree Rooney is entitled to two days’ presentence custody credit.

We reject Rooney’s contentions of error and affirm his conviction and, as modified, his sentence.

FACTS AND PROCEDURAL BACKGROUND

1. Rooney points a gun in the victim’s face, then pistol whips him

On May 22, 2016, shortly after midnight, Oleksandr Kozorez went to a bar called The Tavern in El Segundo with four fellow ice hockey players, including Adam Mangino and Howard Ho. Kozorez, Mangino, Ho, and the two other men had just finished a game. They left around 1:30 a.m. when the bar began to close. Two of the men left; Kozorez, Mangino, and Ho stood across the street from the bar “and had some fresh air.”

Ten or 15 minutes later, a man—later identified as Rooney—came out of the bar and walked toward the threesome. Rooney said to Kozorez, “Do you think you’re special? You’re a fucking piece of shit. You think you’re fucking special?” Rooney “was also mumbling a lot.” Kozorez responded, “No, I don’t think I’m special.” Rooney told Mangino and Ho they were pieces of shit too. Mangino and Ho told Rooney he “need[ed] to go home.” Rooney circled around the threesome two or three times—looking at Kozorez the entire time—then walked down the street and disappeared around a corner.

Five to seven minutes later, Rooney reappeared and walked at “a high speed” toward Kozorez and his companions, “definitely charging and . . . approaching [them] fast.” Rooney “looked very aggressive,” and Kozorez “could tell he had been drinking” from “the way he was saying things.” Rooney “quickly approached [the men] and very quickly pointed a gun at [Kozorez].” Rooney “put the gun . . . straight in [Kozorez’s] face”—eight to 10 inches from Kozorez’s nose—and said, “ ‘Well, you think you’re special now?’ ”

Kozorez was “very scared.” He told Rooney, “[R]elax. We’ll do whatever you want.” Rooney “really quickly hit [Kozorez] with the back of the gun” in his nose and right eyebrow, “pistol whip[ping]” Kozorez. Kozorez lost his balance and fell. Mangino tried to help Kozorez up but Rooney pointed his gun at Mangino and said, “Stay the fuck out of this.” Rooney also pointed the gun at Ho and told him the same thing. The three men were certain the item Rooney pointed at them and with which he hit Kozorez in the face was a gun, not a phone.

A man who had been sitting with Rooney inside the bar came up and pushed Rooney back about 15 feet. Kozorez, Mangino, and Ho got into their respective cars and drove off. Later that morning, Kozorez’s wife—a former deputy district attorney—told Kozorez he should report the incident to the police. The next day, Kozorez and Mangino made a police report. At the time of the assault, Kozorez, Mangino, and Ho had no idea Rooney was a police officer.

Authorities later found a Smith & Wesson .380 Bodyguard handgun in Rooney’s bedroom and two Glocks—a 22 and a 27 subcompact—at his place of work, LAPD’s Newton Station.

2. The charges, trial, verdicts, and sentence

The People charged Rooney with two counts of assault with a firearm on Kozorez and one count each of assault with a firearm on Mangino and Ho. On each of the four counts, the People alleged Rooney personally used a firearm in the commission of the offense.

Rooney testified on his own behalf at trial. Rooney said he’d been an LAPD officer for about 10 years. Rooney stated his “practice” was to keep his Glocks locked in a drawer at work. Rooney’s Smith & Wesson was the only gun he carried off-duty. Rooney testified he “absolutely” did not take his gun with him when he went drinking with friends.

On the night of May 21, 2016, Rooney went to The Tavern. He left the bar around 1:45 a.m., planning to walk home. Crossing the street and looking down at his phone, Rooney said he “bumped somebody.” That person said, “What the fuck is your problem?” “Words” were “exchang[ed],” and the man called Rooney “a piece of shit.” Rooney returned the insult.

Rooney and the other man “[got] into each other’s face.” The man “kind of” “push[ed]” or “check[ed]” Rooney and he stumbled backward into a bush. Rooney saw the man’s “hands kind of start to go up,” so Rooney was “getting ready for a punch.” Rooney “[threw his] hand towards” the man in “a blocking motion” as Rooney “tr[ied] to duck.” Rooney “connected with I think it was his face at that point.” Rooney’s friend then “push[ed him] off Mr. Kozorez.”

Rooney testified he had his phone in his hand. Rooney told the jury, “I basically just got into a little dust-up, you could say, with this guy. It was a one-punch-each thing.” He denied having had a gun with him that night.

The jury convicted Rooney on both counts of assault with a firearm on Kozorez. As to both, the jury found true the allegation that Rooney personally used a firearm in the commission of the offense. The jury acquitted Rooney of assault with a firearm on Mangino and Ho. The trial court denied probation and sentenced Rooney to six years in the state prison. On count 2 (Rooney’s hitting of Kozorez in the face with his gun), the court chose the midterm of three years for the crime and the low term of three years for the firearm use. The court imposed the same sentence on count 1 (Rooney’s pointing of his gun at Kozorez), to be served concurrently with count 2.

DISCUSSION

1. Any error in admitting testimony by a police witness called by Rooney that he believed the victims’ story was harmless

Rooney contends the testimony of El Segundo Police Department Sergeant Glenn Delmendo that he believed Kozorez, Mangino, and Ho constituted impermissible lay opinion testimony on Rooney’s guilt.

The prosecution did not call Delmendo to testify but Rooney did. Delmendo testified he interviewed Kozorez and Mangino when they came to the El Segundo Police Department the day after the incident. He also interviewed Ho by telephone. Delmendo recorded the interviews.

Defense counsel asked Delmendo a series of questions about what the victims told him. Counsel then asked, “[D]id you notice any inconsistencies in their statements to you about what occurred?” Delmendo responded, “Maybe a couple things.” Defense counsel asked Delmendo to list those and Delmendo did. In response to counsel’s question, Delmendo also said he was “concerned” that the victims waited more than a day to report the crime. Delmendo stated, “[I]f their safety was in jeopardy, [then] why not call the police and give the chance for the police to come and try to, you know, settle the problem.”

On cross-examination, the prosecutor asked Delmendo if he was “a little bit frustrated” with Kozorez and his companions. Delmendo answered, “I was.” He explained, “[B]ecause it was late reported [sic].” He continued, “After I started listening to their stories, you know, trying to find out why the statements were inconsistent, . . . as well as the positioning of where the gun was at, and then, you know, waiting that long, it kind of baffled me.” Delmendo said, however, that the victims were cooperative. The prosecutor then asked, “Did you believe the three men, even though you were frustrated with them?” Delmendo answered, “Yes. At some point . . . I started to believe their story.” Rooney’s counsel did not object to this question or move to strike the testimony.

Delmendo continued, “[B]ecause the injury to the face. As a firearm instructor, when I looked at the injuries—and this is just my personal knowledge—you could see the position on the nose, the bridge of the nose, and the injury to the eye could almost I guess depict the—I guess the design of a handgun.” In response to further questioning, Delmendo testified that, even though there were inconsistencies among the three men’s statements about what Rooney had said, “the core of what they were telling [him]” was the same: that Kozorez “had been pistol whipped in the face.”

Rooney argues Delmendo’s lay opinion that he found Kozorez, Mangino, and Ho credible was inadmissible and his attorney was constitutionally ineffective in failing to object to the testimony. As a general rule, “[l]ay opinion about the veracity of particular statements by another is inadmissible on that issue.” (People v. Melton (1988) 44 Cal.3d 713, 744.) Our Supreme Court has explained that it is for “the fact finder, not the witnesses” to “draw the ultimate inferences from the evidence.” (Ibid. See also People v. Sergill (1982) 138 Cal.App.3d 34, 39-40; Evid. Code, § 800, subd. (b).)

We find no prejudicial error. First, it was permissible for Delmendo to testify about his firsthand observations of the injuries to Kozorez’s face. The mark of a handgun on Kozorez’s nose and eye was the only reason Delmendo gave for beginning to credit the victims’ story; he did not elaborate or provide any lengthy explanation to the jury of why he believed the victims. Whether properly characterized as lay opinion, or as expert opinion based on his years in law enforcement and his experience as a firearms instructor, Delmendo’s testimony based on his own perception was permissible. (Evid. Code, §§ 800, subd. (a), 801, subd. (b). Cf. Kline v. Santa Barbara C.R. Co. (1907) 150 Cal. 741, 749, 750 [bystander could testify streetcar passenger was unable to stand and suffered intensely]; People v. Stoll (1989) 49 Cal.3d 1136, 1155 [psychologist entitled to base opinion on observations of patient during interview]; People v. Smith (1967) 253 Cal.App.2d 711, 718 [experienced narcotics officer could testify on whether person was under influence of drugs].)

As for Rooney’s ineffective assistance of counsel claim, there may well have been sound reasons for defense counsel’s failure to object or move to strike. For example, had he done so, the prosecutor might have elicited further testimony from Delmendo that the consistencies in the witnesses’ statements were more numerous than the inconsistencies, and that—based on his 17 years of experience as a police officer—there are many reasons victims may delay reporting a crime. Delmendo’s testimony at that juncture had been generally helpful to Rooney. “[C]ompetent counsel may often choose to forgo even a valid objection. ‘[I]n the heat of a trial, defense counsel is best able to determine proper tactics in the light of the jury’s apparent reaction to the proceedings. The choice of when to object is inherently a matter of trial tactics not ordinarily reviewable on appeal.’ ” (People v. Riel (2000) 22 Cal.4th 1153, 1197.)

Finally, any error was harmless in any event. (People v. Watson (1956) 46 Cal.2d 818, 835-836. Cf. People v. Spence (2012) 212 Cal.App.4th 478, 509-511 [no deprivation of due process even though question posed to expert impermissibly asked him “to testify directly about the guilt” of defendant]; People v. Riggs (2008) 44 Cal.4th 248, 299 [admission of investigator’s opinion that defendant’s statements about crime were not credible and defendant was guilty was error but harmless].) Kozorez, Mangino, and Ho all testified at trial and were extensively cross-examined. Accordingly, jurors could judge for themselves how credible they were. In fact, the jury acquitted Rooney of the charged assaults on Mangino and Ho. “If ‘it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.’ ” (People v. Bonilla (2018) 29 Cal.App.5th 649, 654, quoting Strickland v. Washington (1984) 466 U.S. 668, 697.)

2. The trial court did not fail to order disclosure of any relevant crimes of moral turpitude for any of the witnesses

On May 2, 2018, at the outset of trial, the court conducted an in camera hearing with the prosecutor to review the criminal histories—detentions, arrests, charges, or convictions—of the witnesses scheduled to testify at trial (including defense witnesses). At the conclusion of the hearing, the court determined there were no items for the prosecution to disclose. On appeal, Rooney asks us independently to review the transcript of the hearing “to confirm that there were no crimes of moral turpitude that should have been disclosed, and that the trial court exercised its discretion appropriately.” The Attorney General does not object.

We have read the sealed transcript of the in camera hearing. We conclude there was nothing for the court to order disclosed.

3. The trial court did not abuse its discretion in declining to strike the firearm enhancement

Rooney contends the trial court “failed to consider the aggravating and mitigating factors” when “deciding whether to strike or dismiss the firearm enhancement,” and “therefore abused its discretion.” The record does not support Rooney’s contention.

Rooney’s sentencing memorandum devoted considerable time to his request for probation even though he was presumptively ineligible. His memo cited California Rules of Court, rule 4.414, “Criteria affecting probation,” and analyzed a number of factors. Rooney then argued “the court has the authroity [sic] to strike the 12022.5 enhancement,” without discussing rule 4.428, “Factors affecting imposition of enhancements.”

That rule provides: “(a) If an enhancement is punishable by one of three terms, the court must, in its discretion, impose the term that best serves the interest of justice and state the reasons for its sentence choice on the record at the time of sentencing. In exercising its discretion in selecting the appropriate term, the court may consider factors in mitigation and aggravation as described in these rules or any other factor authorized by rule 4.408. [¶] (b) If the court has discretion under section 1385(a) to strike an enhancement in the interests of justice, the court also has the authority to strike the punishment for the enhancement under section 1385(c). In determining whether to strike the entire enhancement or only the punishment for the enhancement, the court may consider the effect that striking the enhancement would have on the status of the crime as a strike, the accurate reflection of the defendant’s criminal conduct on his or her record, the effect it may have on the award of custody credits, and any other relevant consideration.” (Rule 4.428.)

Our colleagues in Division One recently summarized the law on this issue. “ ‘ “[A] court’s discretionary decision to dismiss or to strike a sentencing [enhancement] under section 1385” is reviewable for abuse of discretion.’ (People v. Carmony (2004) 33 Cal.4th 367, 373.) ‘In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, “ ‘[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ ” [Citation.] Second, a “ ‘decision will not be reversed merely because reasonable people might disagree. “An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.” ’ ” [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.’ (Id. at pp. 376-377.)” (People v. Pearson (2019) 38 Cal.App.5th 112, 116 (Pearson).)

“In addition to the factors expressly listed for determining whether to strike enhancements listed in California Rules of Court, rule 4.428(b), the trial court is also to consider the factors listed in California Rules of Court, rule 4.410 (listing general objectives in sentencing), as well as circumstances in aggravation and mitigation under rules 4.421 and 4.423. ‘[U]nless the record affirmatively reflects otherwise,’ the trial court is deemed to have considered the factors enumerated in the California Rules of Court. (Cal. Rules of Court, rule 4.409.)” (Pearson, supra, 38 Cal.App.5th at p. 117.)

At Rooney’s sentencing, the trial court demonstrated its thorough recollection of the evidence at trial and its careful and thoughtful consideration of the relevant factors in sentencing. After hearing from both sides, the court told Rooney and counsel, “I have given this case a lot of thought. It has really been on my mind a lot. And if there’s one thing I’ve learned, being involved in the criminal justice system for 40 years now, is that alcohol and firearms don’t mix. It is frequently a lethal combination. Now in this case nobody died, but they could have. And it’s troubling in a lot of ways.”

The court continued at some length, noting a number of considerations, including Rooney’s age (“you are not a kid anymore”), his choice to drink earlier that day at a golf tournament “for hours and hours,” his decision to go out drinking that evening and to take his gun with him, his postarrest telephone call to the friend who had pulled him away from the victims, after which that witness claimed not to remember the events he’d previously recounted to police, and his false testimony under oath that he had only a phone and not a gun. The court said, “I don’t think you have ever been truthful about this incident.”

Eventually the court stated it was selecting the midterm of three years on count 2, the assault with a firearm (by pistol whipping). The court turned to the enhancement: “And because I find that circumstances in aggravation and circumstances in mitigation basically even out; the mitigation is that he has no prior record, the aggravation is that there was a threat of great violence; that the victims were unarmed and vulnerable; and that he played a major role in this and there was no justification, so . . . for the use of the firearm, the court is going to select the low term.” Plainly, the court considered the relevant factors.

Rooney also asserts the trial court abused its discretion in declining to strike the firearm enhancement because his offense was not “ ‘distinctively worse than the ordinary.’ ” This argument is equally meritless. Rooney himself testified that his father—also an LAPD officer—“instilled” in him that alcohol and guns are “never a good situation.” At sentencing, the court stated it thought Rooney had “a significant drinking problem” and “probably” “anger management issues” as well. The court continued, “But in addition to that, you are a person that has an awesome responsibility as a police officer, whether you are on duty or off duty. You have been trained in the use of firearms; you know how dangerous they are. And the conduct was completely inexcusable.”

The court noted the video from inside the bar showed nothing happened between Rooney and the victims that “precipitated this.” The court told Rooney, “[Y]ou had a higher duty than someone else who is not familiar with guns who somehow found a gun. But you had the gun with you, and you knew that you shouldn’t have it with you. It violates LAPD policy, according to the testimony that we heard, for you to have a gun with you when you are drinking. And you violated that the entire day, all day long, and continued to do so at the bar. . . . There’s really nothing that limited your culpability for this crime.”

In short, the trial court acted well within its discretion in imposing the low term of three years for Rooney’s use of his gun, rather than striking the enhancement.

4. Rooney’s sentence does not violate Penal Code section 954 or 654

Rooney contends his sentence on two counts of assault with a firearm violated sections 954 and 654 because his pointing his gun at Kozorez and hitting Kozorez in the face with the gun “were part of a continuous, indivisible course of conduct.” We disagree.

Rooney’s trial counsel did not raise any issue under either code section in his written sentencing memorandum or at the sentencing hearing. Accordingly, the trial court had no occasion specifically to address the issue. We can assume, however, that the experienced trial court implicitly found that neither section 954 nor section 654 applied.

i. Section 954 issue
ii.
Section 954 provides: “An accusatory pleading may charge two or more different offenses connected together in their commission . . . .” Our Supreme Court has “ ‘repeatedly held that the same act can support multiple charges and multiple convictions. “Unless one offense is necessarily included in the other [citation], multiple convictions can be based upon a single criminal act or an indivisible course of criminal conduct.” ’ ” (People v. White (2017) 2 Cal.5th 349, 354.) We review the issue of whether multiple convictions are proper under section 954 de novo. (People v. Villegas (2012) 205 Cal.App.4th 642, 646.)

Under section 954, a separate conviction is permissible for each completed charged offense, even if the defendant had the same intent and objective in committing multiple crimes and even if the defendant committed the crimes at or near the same time. (People v. Johnson (2007) 150 Cal.App.4th 1467, 1474 (Johnson).) The “proper analysis involves a determination of when the charged crime is completed.” (Ibid. [defendant properly convicted of three counts of spousal abuse for beating victim in face, then holding her by throat and hitting her, then stabbing her in upper arm]. See also People v. Harrison (1989) 48 Cal.3d 321 [defendant properly convicted of three counts of digital penetration on victim in attack that lasted seven to 10 minutes]; People v. Washington (1996) 50 Cal.App.4th 568 [defendant properly convicted of two counts of burglary based on two separate entries into single residence; rejecting defendant’s contention that the two entries were part of a single intention, impulse, and plan to burglarize the residence]; In re Chapman (1954) 43 Cal.2d 385 [defendant properly convicted of robbery and assault; after victim had surrendered cash, defendant hit him with gun as he tried to run away].)

Here, Rooney insulted the three men, then walked away, then returned a few minutes later. He pointed his gun at Kozorez’s face and asked him, “Well, you think you’re special now?” A “very scared” Kozorez slightly raised his hands in a gesture of surrender. Rooney then hit Kozorez in the face with the back of the gun. When Rooney pointed his gun at Kozorez, the assault with a firearm was a completed crime. When he then hit him in the face with the back of his gun, a second assault took place.

iii. Section 654 issue
iv.
Section 654 provides, “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a).) “ ‘ “ ‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.’ ” ’ ” (People v. Jackson (2016) 1 Cal.5th 269, 354 (Jackson).)

If the defendant harbored “multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct.” (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268 (Cleveland).) But “ ‘ “[i]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, [the] defendant may be found to have harbored a single intent and therefore may be punished only once.” ’ ” (People v. Spirlin (2000) 81 Cal.App.4th 119, 129.) “ ‘The temporal proximity of the . . . offenses is insufficient by itself to establish that they were incident to a single objective.’ ” (Jackson, supra, 1 Cal.5th at p. 354.)

“The question of whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) Its findings on this question must be upheld on appeal if there is any substantial evidence to support them.” (People v. DeVaughn (2014) 227 Cal.App.4th 1092, 1113; see also People v. Braz (1997) 57 Cal.App.4th 1, 10.) “An appellate court views the evidence in a light most favorable to the respondent and presumes in support of the sentencing order the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Phung (2018) 25 Cal.App.5th 741, 761 (Phung).)

Substantial evidence supports the trial court’s implicit finding here that Rooney harbored “multiple or simultaneous objectives, independent of and not merely incidental to each other.” (Cleveland, supra, 87 Cal.App.4th at p. 267.) After repeatedly calling Kozorez “a piece of shit” and asking him if he thought he was “special,” Rooney pointed a gun in Kozorez’s face. One apparent objective was to insult Kozorez further, threaten him, and frighten him. Then Rooney hit Kozorez in the face with his gun. An apparent objective of that act was to batter and injure Kozorez. “A defendant’s criminal objective should not be defined too broadly and amorphously.” (Phung, supra, 25 Cal.App.5th at p. 760, citing People v. Perez (1979) 23 Cal.3d 545 [rejecting defendant’s argument that he had single objective in committing six sex offenses—to obtain sexual gratification].) The trial court did not violate section 654 by running Rooney’s sentences concurrently rather than staying one of them.

5. Rooney is entitled to two days of presentence credit

At sentencing, Rooney’s counsel told the court Rooney had no presentence custody credits. Counsel was incorrect. The parties agree Rooney is entitled to two actual days of credit. We modify the judgment so to provide.

DISPOSITION

We affirm James William Rooney’s conviction and, as modified, his sentence.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

LAVIN, Acting P. J. DHANIDINA, J.