Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Riverside County No. RIF131407, Joan F. Burgess, Commissioner.
McINTYRE, J.
A jury found Tyhir Isaiha Louis Duvall guilty of attempted first degree murder, assault with a firearm, and malicious discharge of a firearm at an occupied vehicle, and found true certain enhancements. After the jury rendered its verdict, the trial court granted Duvall's request to relieve his retained counsel, Charles E. Mullis, and appointed a public defender. The trial court subsequently granted Duvall's motion for new trial based on ineffective assistance of counsel, finding Mullis's representation of Duvall fell below the standard of care. On appeal, the People argue the court abused its discretion in granting the motion. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Conviction
On the afternoon of June 30, 2006, Jeffrey Alan Turner was driving home when the driver of a Ford Focus tried to merge into his lane. Turner identified Duvall as the driver of the Ford, and saw no one else in the car. After Duvall displayed a gun, Turner wrote down Duvall's license plate number. Eventually, Duvall followed Turner down the wrong side of a one-way street. As Turner tried to leave, Duvall stopped his car and started to exit the Ford. Turner heard three "pops" and then discovered that he had been shot.
Three individuals saw the cars and heard the "pops, " but did not see the shooting. Two of the individuals saw only one person in the Ford. After the shooting, a police officer checked the license plate number and determined that Duvall owned the Ford.
On the night of the shooting, Duvall drove the Ford to the home of his acquaintance, Pierre Ray. Duvall looked nervous, and washed his hands with bleach and water. Ray then saw Duvall place something into a construction utility belt, and climb a ladder into the attic. A couple hours later, police arrived at Ray's home and discovered a handgun and firearm magazine in a utility belt in the attic.
During a recorded interview with police, Duvall admitted he had been in a verbal altercation with another driver, but claimed that his passenger "K-9" pulled out a gun and shot the other driver. Duvall later admitted to police that he was the shooter and told police they could find the gun in Ray's attic. At trial, Duvall testified that K-9 had been the shooter. When confronted with his prior admission to police that he had been the shooter, Duvall claimed that police pressure had caused him to lie.
B. The New Trial Motion
At the hearing on Duvall's motion the trial court heard testimony from: Duvall's grandmother; Duvall's grandfather; Duvall's mother; Deputy District Attorney Daima Calhoun; Duvall's counsel prior to Mullis; Mullis; Duvall; and attorney expert witness Jeffrey Anthony Van Wagenen. Although the trial court heard conflicting evidence regarding whether Duvall knew he was facing a life sentence, Mullis admitted never telling Duvall that he faced a term of 40 years to life if convicted of all charges. Mullis also admitted that he did not discuss with Duvall the possible sentence for the Penal Code section 12022.53 firearm enhancement, and that he incorrectly advised Duvall that a premeditated attempted murder charge carried a 15 years to life term. The Riverside District Attorney's Office has a policy to not make plea offers in "life" cases. Nonetheless, Calhoun suggested several times to Mullis that the defense make a plea offer in the high teens or low twenties, and that she would take the offer to her supervisors. Mullis never made an offer, and communicated the invitation to Duvall in a "sarcastic, disparaging" manner.
Before the shooting, Duvall had never been involved in any type of violent conduct and had never been arrested. Duvall and his girlfriend were under a great deal of stress because Child Protective Services had recently removed their son. Duvall was also having financial difficulties, even through both he and his girlfriend worked. Duvall told Mullis that he was emotionally upset and angry at the time of the shooting, but Mullis never discussed the possibility of an attempted manslaughter plea or defense with Duvall.
Other than informal discussions with the prosecutor, Mullis took no affirmative steps to make sure he had all discovery. Mullis did not know he was missing 15 of the 25 police reports, and admitted that he had not read all of the police reports before beginning the jury voir dire. Mullis claimed that Calhoun had never invited him to review her trial notebook. Calhoun denied Mullis's claim. She testified that she always makes her trial notebook available to the defense to ensure that the defendant receives a fair trial, but that Mullis never reviewed her notebook until trial actually commenced. Mullis hired an investigator to interview all the witnesses, but the investigator interviewed only Duvall. A second investigator Mullis hired interviewed several witnesses who all stated that Duvall was alone in the car.
Mullis believed Duvall's story that K-9 was the shooter, but he did not know that Duvall's prints had been found on the gun recovered from Ray's attic until the criminalist testified at trial. Mullis testified that had he known that the prints matched Duvall's, he would have: changed his defense strategy; confronted Duvall with this evidence; and told Duvall that the jury would not "buy" his story about not being the shooter. Mullis believed that Duvall admitted being the shooter after seven hours of interrogation without bathroom breaks, and after Duvall had soiled his pants. Yet, Mullis never moved to suppress Duvall's statements.
Van Wagenen offered opinion testimony about the standard of care for a reasonably competent attorney. Among other things, he stated that defense counsel must make every effort to discuss a plea when invited to do so by the district attorney. He opined that an attorney needed to understand the different theories under which a client could be convicted, and lack of such understanding impaired the attorney's ability to prepare the case for trial or plea discussions. An attorney needs to review a client's recorded confession, and failure to do so impacts counsel's ability to raise possible suppression issues, handle the confession at trial, or make settlement decisions. Any counsel not reviewing all discovery in a case is ineffective. Defense counsel must also understand the mental state of a client during the crime and investigate whether a sudden quarrel would mitigate the claim of premeditation or reduce the charge.
The trial court concluded that Mullis rendered ineffective assistance of counsel with respect to each of the areas upon which Van Wagenen opined. The court found that Mullis never had a meaningful discussion with Duvall that would have allowed him to make an intelligent choice on whether or not a plea offer should have been presented. All the factors in the case suggested to the trial court that Duvall would have accepted a reasonable plea deal if he understood he faced a life sentence, and that a court would have accepted a 16- to 20-year deal because Duvall had no prior criminal record. The trial court also found that Duvall would have obtained a different result at trial had Mullis developed and presented the defense of attempted voluntary manslaughter.
DISCUSSION
A trial court may grant a motion for a new trial on the ground of ineffective assistance of counsel. (People v. Fosselman (1983) 33 Cal.3d 572, 582-583.) To prevail on this ground, the defendant has the burden to demonstrate both that counsel's performance was deficient when measured against the standard of a reasonably competent attorney, and that counsel's deficient performance resulted in prejudice to the defendant in the sense that it so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. (People v. Callahan (2004) 124 Cal.App.4th 198, 212 (Callahan).) "If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.)
We review an order granting a defendant's motion for a new trial for abuse of discretion. (People v. Ault (2004) 33 Cal.4th 1250, 1255; Callahan, supra, 124 Cal.App.4th at pp. 211-212.) We do not substitute our judgment for the trial court's determination that the error was prejudicial. (People v. Ault, supra, at p. 1263.) "A party seeking to overturn a court's decision in this regard '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.]" [Citations.]' [Citation.] This burden is a heavy one: '"Where the motion is made on a proper... ground, and the record contains some showing in support of it, the judge's discretion in granting is almost invariably upheld; i.e., the appellate court gives the order all of the presumptions in favor of any appealable judgment."' [Citations.]" (Callahan, supra, 124 Cal.App.4th at pp. 211-212.)
The People contend Mullis made a reasonable tactical decision to go forward with the defense that K-9 had been the shooter because Duvall repeatedly made this assertion. Accordingly, the People assert the trial court abused its discretion when it found that Mullis provided ineffective assistance for failing to try the case on a theory of attempted voluntary manslaughter. We disagree.
Although counsel is given wide latitude and discretion in the area of tactics and strategy, the exercise of that discretion must be founded upon reasonable investigation and preparation, and must be reasonable and informed in light of the facts and options reasonably apparent to counsel at the time of trial. (In re Jones (1996) 13 Cal.4th 552, 561, 564-565.) Here, Mullis's investigation prior to trial did not meet the standard of a diligent and conscientious advocate. Duvall told Mullis different versions about what had happened. Mullis, however, could not determine which version the evidence supported because he did not have 15 of the 25 police reports. Mullis did not learn that the gun recovered by police contained Duvall's fingerprints until the criminalist actually testified at trial. Had he known about this critical evidence, Mullis admitted he would have confronted Duvall and changed his defense strategy because he knew a jury would not believe Duvall's claim. Mullis's inadequate trial preparation prevented him from giving Duvall any reasoned advice regarding Duvall's decision to testify that K-9 had been the shooter.
Moreover, the evidence may well have supported an attempted voluntary manslaughter defense. Duvall had no prior arrests, and his family members described him as peaceful. Duvall was under significant stress before the shooting, and was emotionally upset and angry at the time of the shooting. Mullis, however, never discussed the possibility of an attempted manslaughter plea or defense with Duvall. Nor did Mullis attempt to suppress Duvall's statements to police about being the shooter even though he believed the confession had been coerced. This record supports the trial court's conclusion that Mullis's uninformed actions resulted in the failure to present a potentially meritorious defense.
Importantly, the People do not contest the trial court's finding that Mullis provided ineffective assistance by failing to effectively convey the prosecutor's suggestion regarding a plea deal for 16 to 20 years in prison. Rather, the People claim Duvall suffered no prejudice because the evidence suggests he was never amenable to a plea bargain. This argument, however, ignores the evidence that Mullis's inadequate trial preparation prevented him from understanding the case and providing Duvall with any meaningful advice about accepting a plea bargain. Had Mullis properly informed Duvall about the prosecutor's plea invitation, and accurately advised Duvall of the consequences of the charges against him, it is reasonably probable that Duvall would have accepted a plea which would have been approved by the trial court. (In re Alvernaz (1992) 2 Cal.4th 924, 937.) Accordingly, the trial court's finding of prejudice is well within the bounds of reason, and the trial court did not abuse its discretion in granting Duvall a new trial.
DISPOSITION
The order granting Duvall's motion for a new trial is affirmed.
WE CONCUR: BENKE, Acting P., J.NARES, J.