Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC777928
RUSHING, P.J.
In his petition for writ of habeas corpus, Alex M. Castro asserts the judgment should be reversed, because he was denied effective assistance of counsel at his trial. The basis of Castro’s claim is that his attorney failed to hire a handwriting expert to review a threatening letter Castro allegedly wrote to dissuade the primary witness from testifying in this case. Castro denied he wrote the letter.
A jury convicted Alex M. Castro of animal cruelty, the killing of “Copper, ” his girlfriend’s Cocker Spaniel. The court sentenced him to 36 years to life.
Castro also brings a separate appeal in this court that we ordered consolidated for disposition.
The appeal is case number H034813, People v. Castro.
Statement of the Facts and Case
In 2007, Castro was living with his girlfriend, Joanie Gonzales in a trailer park in San Jose. Joanie had a cocker spaniel that lived with them. Michael Gillem, a motorcycle gang member, was the park manager, and also lived in the trailer park. Gillem had been in a romantic relationship with Joanie before she moved into the park. After moving in, Joanie told Gillem she was involved with Castro and wanted Castro to move in with her. Gillem was not happy about Castro moving in, but accepted it if he could continue to see Joanie romantically. Joanie’s daughter, Patricia stated that there were hard feelings between Gillem and Castro over Joanie.
On July 31, 2007, Joanie’s cocker spaniel was killed. No one saw the death occur, and no weapon was ever found. Upon examination by a veterinarian, the dog was determined to have a variety of injuries to its shoulders, neck, back, ribs, and head. The cause of death was likely impact trauma to the head or chest.
Gillem was the principal witness against Castro at trial. He said that Castro came to his trailer on August 1, 2007, before going to work, and told Gillem that he killed the dog. Gillem reported Castro said, “Well, I did it.” “I finally killed Copper.” “I beat the little son of gun to death.” According to Gillem, Castro said, “something like he was barking and wouldn’t shut up so he hit him and then he started squealing so he just finished it. Killed it.”
In addition to Gillem’s testimony, the prosecution presented evidence of Castro’s negative history with the dog prior to the dog’s death. A few witnesses testified that Castro disliked the dog, called the dog “stupid, ” and expressed his wish that the dog was dead. Some said they saw Castro kick the dog on occasion, while others stated they had never seen Castro abuse the dog in any way.
Finally, the prosecution introduced an unsigned letter purportedly written by Castro while in jail awaiting trial on this charge. The letter contained two pages of police reports about the incident, and referred to the pages that contained references to Gillem. The letter was addressed to Richard Ballentine, the Sergeant at Arms of the same motorcycle club as Gillem, and a fellow resident of the trailer park. Ballentine was a good friend of Gillem’s.
The letter stated that the author understood there was a policy among motorcycle gangs not to make statements to the police, and that a member of the club, (Gillem) had “dishonored your colors and your patch... by his statements ‘alone’ has a man facing 36 years to life in prison.” The letter also stated, “[i]f this situation is not dealt with in your club a copy of this police report will be sent to each and every M.C. club in the state of California.”
Ballentine gave the letter to Gillem in October 2007, who did nothing with it until October 2008, when he gave it to the district attorney.
Castro denied writing the letter, or asking another to write it. He also denied killing the dog, and testified that he found the dog, already dead, and believed it had been run over by a car.
Subsequently, the same letter was used in a separate criminal case charging Castro with threatening and attempting to dissuade a witness. Castro’s counsel for that case hired a handwriting expert, who testified that, in her opinion, the letter was not written by Castro, but appeared as if it was written by someone attempting to imitate Castro’s handwriting. Castro was acquitted of the charge following jury trial.
In connection with the killing of his girlfriend’s dog, Castro was charged by information in 2009 with one count of cruelty to animals in violation of Penal Code section 597, subdivision (a). The information also alleged Castro personally used a deadly or dangerous weapon in the commission of the crime within the meaning of Penal Code sections 667 and 1192.7. Finally, the information alleged Castro suffered two prior strike convictions under Penal Code sections 667, subdivision (d)-(i) and 1170.12, two prison terms under Penal Code section 667.5, subdivision (b), and two prior serious felony convictions within the meaning of Penal Code sections and 667, subdivision (a).
Castro was tried by jury in April 2009, and was found guilty after an 11-day trial of one count of animal cruelty and the personal use enhancement was found true. Castro admitted the prior prison terms and the prior strikes.
In September 2009, Castro moved to dismiss the strike convictions, and the court denied the request. Castro was sentenced to 25 years to life consecutive to 11 years for the prior convictions.
Castro filed an appeal of the judgment of conviction. In addition, he brought a petition for writ of habeas corpus requesting his conviction be reversed because he was denied the effective assistance of counsel at his trial for animal cruelty.
After our initial review of the allegations in the writ petition, we determined Castro established a prima facie case that he was entitled to the requested relief. We issued an order to show cause why the petition should not be granted.
Discussion
In the writ petition, Castro claims he was denied effective assistance of counsel, because his trial attorney failed to hire a handwriting expert to analyze and testify about a threatening letter Castro allegedly wrote from prison to dissuade the primary prosecution witness from testifying at trial. Castro denied he wrote the letter, and the prosecutor used the letter as evidence against him during trial. In order to establish ineffective assistance of counsel, to be entitled to a writ, or to an order to show cause, a petitioner must demonstrate “that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsel’s deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsel’s failings, the result would have been more favorable to the defendant. [Citations.]” (In re Resendiz (2001) 25 Cal.4th 230, 239, abrogated on another ground in Padilla v. Kentucky (2010) 130 S.Ct. 1473.)
It is settled that effective and competent representation requires “counsel’s ‘diligence and active participation in the full and effective preparation of his client’s case.’ [Citation.] Criminal defense attorneys have a ‘ “duty to investigate carefully all defenses of fact and of law that may be available to the defendant....” ’ [Citation.]... [Citation.] ‘Counsel should promptly advise his client of his rights and take all actions necessary to preserve them....’ ” (People v. Pope (1979) 23 Cal.3d 412, 424-425, overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800.)
Here, Castro’s claim of ineffective assistance stems from his attorney’s decision not to hire a handwriting expert to review the letter and testify to her evaluation at trial.
In this case, Castro’s trial attorney, Daniel Camp, discussed the letter with him during trial preparation. Castro told Camp he did not write the letter, and asked him to hire a handwriting expert. Camp sought the approval of his supervisor at the Alternate Defender’s Office, David Epps, to hire an expert to examine the letter, and testify to the results at trial. Epps denied Camp’s request, and the expert was not hired.
Castro’s counsel provided reasons behind the decision not to hire a handwriting expert, “[w]hile I can’t speak for my supervisor about the reasons the request [to hire the handwriting expert] was ultimately denied, my belief is the request was denied because of the weight of other evidence; the use of the letter evidence only for the purposes of showing [Castro] had a ‘consciousness of guilt’ and not for the truth of whether or not [Castro] actually killed the dog, and the benefit we would get to the overall case in retaining the expert as it relates to the information we had about the circumstances of the writing of the letter.”
Camp focused on the weight of the other evidence against Castro as the primary reason his office chose not to hire a handwriting expert. This was not “ ‘a rational and informed decision on strategy and tactics founded upon adequate investigation and preparation.’ ” (People v. Jones (1996) 13 Cal.4th 552, 565.) Indeed, had counsel hired an expert to evaluate the letter, he would have learned that Castro was telling the truth when he said he did not write the letter, and that the letter appeared to have been forged. This was clearly demonstrated in Castro’s subsequent trial for threatening a witness during which Castro was acquitted following the expert’s testimony.
Following the decision not to hire a handwriting expert, Camp stated that he “tried to minimize the damage of the letter by seeking its exclusion because of foundational problems based on the unavailability of the recipient, Mr. Ballentine, to testify.” Camp further stated, “My motion in limine to that effect was denied and the letter was admitted over our objection.”
Here, there was no tactical or strategic decision for the Alternate Defender’s Office not to consult a handwriting expert; if, for example, defense counsel had consulted an expert, and the expert opined that the letter was written by defendant, counsel could make a tactical decision not to call the expert to testify at trial. Because the witness would not be called to testify at trial, counsel would have no obligation to turn over the expert’s damaging report to the prosecution as discovery. Put another way, there was no potential harm to defendant in counsel consulting a handwriting expert, but great potential harm to defendant if counsel did not, as is clearly evident in this case.
Camp’s office’s decision not to hire a handwriting expert to evaluate the letter was incompetent, and did not fulfill its duty “ ‘ “to investigate carefully all defenses of fact and of law that may be available to the defendant....” ’ ” (People v. Pope, supra, 23 Cal.3d at pp. 424-425.) The Alternate Defender’s Office was ineffective in representing defendant, not for the failure to call a handwriting expert at trial, but for the failure to consult an expert in investigating the case.
Moreover, counsel’s decision not to consult a handwriting expert about the letter was prejudicial to Castro. The letter was very damaging at trial. With no evidence attacking its authenticity, the letter showed Castro’s consciousness of guilt, and that he had a violent and threatening disposition. The letter also corroborated Gillem’s testimony that Castro confessed he killed the dog in an otherwise weak evidentiary case. There were no witnesses to the dog’s killing. Testimony from a trailer park resident that he saw Castro carrying the bloody dog the evening it was killed was consistent with Castro’s testimony that he found the dog already dead and believed it had been hit by a car. The letter was extremely important in bolstering Gillem’s credibility, while at the same time casting doubt on Castro’s version of events.
Evidence from a handwriting expert that Castro did not write the letter, and that the letter appeared to have been forged to look like Castro’s writing could have been used to cast significant doubt on the entirety of the prosecution’s case against Castro. Without the letter, there would be nothing to bolster Gillem’s testimony that Castro confessed to the crime. Gillem had a strong motive to lie in this case, because he had a romantic rivalry with Castro for Joanie’s affection, and was not happy that Gillem was living with Joanie. In addition, it benefitted Gillem to testify that the letter looked as if it had been written by Castro. A handwriting expert would have refuted the prosecution’s theory that Castro wrote the letter attempting to dissuade Gillem from testifying and was material and necessary for Castro’s defense. (People v. Hill (1969) 70 Cal.2d 678, 690.)
Based on the evidence, we find but for counsel’s failure to consult a handwriting expert to evaluate the letter, it is reasonably probable that the result of the trial would have been different. (See In re Fields (1990) 51 Cal.3d 1063, 1070.) There is no question that confidence in the guilty verdict in this case has been undermined.
Disposition
The petition for writ of habeas corpus is granted. The judgment is reversed. The pending appeal in case number H034813 is dismissed as moot.
WE CONCUR: PREMO, J.ELIA, J.