Opinion
A153219 A156494
03-11-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVID FANNING, Defendant and Appellant. In re DAVID FANNING on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR315326)
This is an appeal from final judgment after a jury convicted defendant David Fanning of assault with a firearm, enhanced for personal use of a firearm and infliction of great bodily injury. The trial court thereafter denied defendant's request for probation and sentenced him to a total prison term of eight years. On appeal, defendant contends his constitutional rights were violated by the trial court's exclusion of evidence relating to the victim's commission of crimes of moral turpitude; erroneous instruction on his self-defense theory effectively removed his primary defense from the jury's consideration; and denial of his request for probation was an abuse of discretion. We affirm.
After filing the appeal, defendant filed a petition for writ of habeas corpus (case No. A156494) claiming ineffective assistance of counsel. On February 21, 2019, we ordered that the petition for writ of habeas corpus be considered with the direct appeal for the sole purpose of determining whether an order to show cause should issue. We will resolve that petition in part IV, post, after addressing the issues raised on direct appeal.
FACTUAL AND PROCEDURAL BACKGROUND
On February 27, 2017, an amended criminal information was filed charging defendant with assault with a firearm (Pen. Code, § 245, subd. (a)) (count 1), enhanced for personal use of a firearm (id., §§ 12022.5, 1192.7, subd. (c), 667.5, subd. (c)) and infliction of great bodily injury (id., § 12022.7, subd. (a)).
The original felony complaint was filed on June 24, 2015.
Unless otherwise stated, all statutory citations herein are to the Penal Code.
Trial began on February 27, 2017, at which the following evidence was presented. On June 8, 2015, a bystander found R.G. (the victim) with a gunshot wound and behaving erratically. Assuming the victim was "whacked out" on drugs, the bystander rendered aid. As the bystander sat with the victim, the victim began "fidgeting," pulling his pants up and down and taking things out of his pockets. In doing so, the victim pulled a knife out of his underwear and attempted to clip it to his pocket, and pulled out what appeared to be a bag of "meth." The bystander threw the knife out of the victim's reach.
About 35 minutes later, Officer Dave Marsh arrived and moved the victim to a nearby church where the fire department was able to treat his wound. Officer Marsh assisted in creating a perimeter around the crime scene. A short while later, he observed defendant exit a nearby house and surrender to the police. Officer Marsh was aware defendant had already made arrangements with the police to surrender.
The victim was interviewed at the hospital by Officer Chris Lachuga, during which interview he refused to reveal the identity of who had shot him.
At trial, the victim testified that he had previously met defendant through a mutual friend, Sarah. Together, the men played games and musical instruments and used drugs. Their relationship was largely based around their drug use, and, if not for his drug use, "[the victim] probably would have not talked to [defendant] . . . ."
On June 8, 2015, the victim and a friend went to defendant's house in the early morning at about 2:00 a.m. looking for a place to get high. After knocking on the door for about 10 minutes, the victim and the friend finally left when no one answered. Later that evening, at about 7:30 p.m., the victim returned to defendant's house to ask for a ride to Sarah's house. The victim could see defendant through the screen door in the kitchen. Defendant said, "What's up?" and invited him in, angrily demanding to know why the victim had come to his house at 2:00 a.m. The victim was confused that defendant was angry and "screaming" and "yelling" at him, as he had often gone to defendant's house very late at night when they were on drugs. After asking defendant several times why he was angry, the victim began laughing at defendant, who was "getting hysterical," which made defendant even more angry. Defendant repeatedly asked the victim, "You think you're tough?"
At some point during their argument, defendant "stomped off, mad," leaving the kitchen and returning with a gun, repeating, "You think you're tough?" According to the victim, he was "shying away" from defendant and had already turned toward the door when defendant shot him in the leg. Once shot, the victim opened the door and hopped out of the house to the front yard seeking help. The victim denied having any drugs or a knife on his person at the time of the shooting.
Defendant testified in his own defense, explaining that after he met the victim through his friend Sarah, the victim kept showing up unannounced at his house asking for rides. Defendant neither invited the victim to his house nor hung out with him. When the victim would show up, defendant would sometimes not answer the door and other times answer the door and agree to give him a ride. Defendant always felt uncomfortable, knowing the victim was pushy and in trouble with the law.
On the day in question, defendant did not answer the door when the victim knocked at 2:30 a.m. When the victim returned that evening, defendant was in the kitchen and called out to ask what the victim wanted. Looking up, defendant saw that the victim had entered his residence. Angry, defendant demanded to know why the victim had come earlier at 2:30 a.m. The two men argued and the victim refused to leave. According to defendant, the victim suddenly had a knife in his hand. Scared, defendant ran to his bedroom to retrieve his gun. Defendant returned to the victim, pointed his gun and told him again to leave, but the victim again refused. The victim then raised his knife in the air, and defendant shot him in the leg. After the victim left, defendant called his father, who was employed in the field of law enforcement. After receiving his father's advice, defendant spoke to the police to voluntarily surrender.
Detective Kelly Gottlieb testified about asking defendant what happened on the night in question when he was in the back of the patrol car. Defendant told the detective that the victim had shown up unannounced at his residence. According to Detective Gottlieb, defendant then told the victim " 'if he didn't leave, I'd shoot him with my gun.' " Defendant also told the detective that he "got his gun and shot [the victim] in the leg." Detective Gottlieb, who took notes of this conversation with defendant, testified that defendant never mentioned the victim had threatened him with a knife.
On March 7, 2017, the jury found defendant guilty as charged and found both enhancement allegations true.
Defense counsel subsequently moved to suspend proceedings pursuant to section 1368 to permit defendant to undergo a psychiatric evaluation. On July 12, 2017, the court granted this request, and the evaluation, finding defendant competent to proceed, was subsequently filed with the court.
Following a sentencing hearing on November 9, 2017, the trial court denied defendant's request for probation and sentenced him to an aggregate term of eight years in state prison. This timely appeal followed.
DISCUSSION
Defendant raises three arguments on appeal: (1) his constitutional rights to present a complete defense and confront adverse witnesses were violated by the trial court's exclusion of evidence relating to the victim's prior felony arrests and convictions; (2) he was effectively precluded from proving his primary defense in violation of his constitutional rights to due process when the jury was instructed on "initial aggressor" under CALCRIM No. 3471; and (3) the trial court abused its discretion when refusing to grant him probation and sentencing him to eight years in prison. We address each argument in turn.
I. Did the court erroneously exclude evidence relating to the victim's commission of crimes of moral turpitude?
The first issue relates to the trial court's exclusion of some, not all, of defendant's proffered evidence relating to the victim's prior felony arrests and convictions that defendant intended to use for impeachment purposes. Ruling on the prosecution's supplemental motion in limine, the trial court admitted evidence of the victim's 2014 convictions for first degree burglary (Pen. Code, § 459), driving in wanton disregard for the safety of others while evading peace officers (Veh. Code, § 2800.2), and theft or unlawful taking or driving of a vehicle (id., § 10851) for impeachment purposes. The trial court excluded, however, evidence of the victim's remaining crimes, finding them too remote in time, more prejudicial than probative, and likely to take up an undue consumption of time at trial. The trial court also rejected defendant's argument that the victim's prior convictions should be admitted to prove the victim's motive, intent or habit, finding them too dissimilar to be probative. According to defendant, the court's ruling is erroneous and infringed on his constitutional rights to present a defense and confrontation because it precluded him from demonstrating that (1) the victim was regularly involved in felony crimes and crimes involving moral turpitude (evidencing his bad character) and (2) had a motive, plan or intent when entering defendant's home uninvited and armed with a knife to commit a crime. The relevant law is not in dispute.
The excluded evidence consisted of felony convictions for possession of a controlled substance (2013), unlawful sexual intercourse with a minor (2004), disregard for safety of persons or property (2003) and grand theft (2002); and crimes of moral turpitude involving rape (2015), theft-related offenses (four incidents in 2013), evading a peace officer (2013), statutory rape (2003), and grand theft/robbery (2002).
"Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding." (Cal. Const., art. I, § 28, subd. (f), par. (4).) "However, . . . notwithstanding this constitutional provision, a trial court retains discretion under Evidence Code section 352 to preclude the use of a prior conviction for the purpose of impeachment if the probative value of the conviction is outweighed by its prejudicial effect." (People v. Black (2007) 41 Cal.4th 799, 810.) Under Evidence Code section 352, the trial court has broad discretion in determining whether relevant evidence should nonetheless be excluded because its probative value is substantially outweighed by its prejudicial effect. (People v. Champion (1995) 9 Cal.4th 879, 922; Evid. Code, § 352.)
Moreover, these " ' "ordinary rules of evidence do not impermissibly infringe on the accused's [constitutional] right to present a defense." ' " (People v. Lawley (2002) 27 Cal.4th 102, 155.) As such, the trial court retains " ' "a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice." ' " (Ibid.) On appeal, a trial court's decision to admit or exclude evidence is reviewed solely for abuse of discretion. (People v. Brown (2003) 31 Cal.4th 518, 547; People v. Avitia (2005) 127 Cal.App.4th 185, 193.) "The trial court's ruling will not be disturbed in the absence of a showing it exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. [Citation.]" (People v. Avitia, supra, 127 Cal.App.4th at p. 193; see People v. Dyer (1988) 45 Cal.3d 26, 73.)
Here, we find nothing arbitrary, capricious, or patently absurd about the trial court's exclusion under Evidence Code section 352 of some, but not all, of the proffered evidence relating to the victim's prior convictions for felonies and crimes of moral turpitude. (People v. Avitia, supra, 127 Cal.App.4th at p. 193.) The trial court permitted defendant to impeach the victim with evidence of three recent felony convictions—for first degree burglary, driving in wanton disregard for the safety of others while evading peace officers, and theft or unlawful taking or driving of a vehicle. The court then decided that admitting evidence of the remaining prior arrests or convictions was unwarranted. The court reasoned that the remaining convictions were remote in time (some occurring "almost . . . 14 years" ago) and would take up "an undue amount of time [at trial] for facts that really have nothing to do with this case." In addition, with respect to all the proffered evidence, the court found that it related to convictions for a variety of offenses (including sexual offenses, possession of a controlled substance and vehicle theft) and thus were too diverse to be highly probative of a habit, intent or motive within the meaning of Evidence Code sections 1101, subdivision (b), and 1105. Accordingly, the court excluded this evidence under Evidence Code section 352. The court's weighing of relevant factors was appropriate. (People v. Champion, supra, 9 Cal.4th at p. 922; Evid. Code, § 352.)
In affirming the court's exercise of discretion, we also reject defendant's argument that exclusion of this evidence implicated his constitutional rights to present a complete defense and to confront adverse witnesses. " 'Although we recognize that a criminal defendant has a constitutional right to present all relevant evidence of significant probative value in his favor [citations], ". . . the proffered evidence must have more than 'slight-relevancy' to the issues presented." ' " (People v. Homick (2012) 55 Cal.4th 816, 865.) And, while defendant may be correct that his subjective belief in the need for self-defense was the issue at the heart of his case, "this does not mean the trial court constitutionally was compelled to permit [him] to introduce all possibly relevant evidence on these subjects despite its marginal relevance, the possible effect upon the jury's ability to remain focused on the issues before it (rather than becoming sidetracked on collateral questions), and the potentially significant amount of time entailed in admitting the evidence in a manner fair to both sides. (See People v. Cornwell (2005) 37 Cal.4th 50, 82 [33 Cal.Rptr.3d 1, 117 P.3d 622] ['a state court's application of ordinary rules of evidence—including the rule stated in Evidence Code section 352—generally does not infringe upon' the constitutional right to offer a defense]; [citation].)" (People v. Fuiava (2012) 53 Cal.4th 622, 665-666.)
Finally, even assuming for the sake of argument that this evidence should have been admitted, given its minimal relevance, it is not reasonably likely that admitting it would have led to a different verdict. (See People v. Cudjo (1993) 6 Cal.4th 585, 611-612 [exclusion of evidence, even if erroneous, is harmless if it does not appear reasonably probable verdict was affected].)
Accordingly, the trial court's evidentiary ruling stands. II. Did the court err when instructing the jury pursuant to CALCRIM No. 3471?
Defendant seeks reversal based on the trial court's giving of the following instruction relating to the right of an initial aggressor to claim self-defense, which tracks on CALCRIM No. 3471:
"A person who starts a fight has a right to self-defense only if: [¶] 1. He actually and in good faith tried to stop fighting; [AND] [¶] 2. He indicated, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wanted to stop fighting and that he had stopped fighting;
"If the defendant meets these requirements, he then had a right to self-defense if the opponent continued to fight. [¶] However, if the defendant used only non-deadly force and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting, or communicate the desire to stop to the opponent, or give the opponent a chance to stop fighting."
Defendant does not quarrel with the legal correctness of CALCRIM No. 3471. Instead, defendant contends the trial court prejudicially erred by giving this instruction because "there was no evidence that [he] started a physical fight with the victim before shooting him" or "engage[d] in conduct that created an appearance justifying a deadly counteract from [the victim]." Defendant further contends the court's error effectively withdrew his primary defense from the jury by instructing that self-defense is not available to a " 'person . . . who . . . starts a fight' " even though there was no evidence he did so. The following rules apply.
"A trial court must give a requested instruction only if it is supported by substantial evidence, that is, evidence sufficient to deserve jury consideration. [Citations.] As we have stressed in a recent case, 'unsupported theories should not be presented to the jury.' [Citation.]" (People v. Marshall (1997) 15 Cal.4th 1, 39-40.) On appeal, "[t]he independent or de novo standard of review is applicable in assessing whether instructions correctly state the law [citation] and also whether instructions effectively direct a finding adverse to a defendant by removing an issue from the jury's consideration [citations]." (People v. Posey (2004) 32 Cal.4th 193, 218.) In conducting this review, we consider the entire set of instructions given to the jury rather than the challenged instruction in isolation, and we assume in doing so that the jurors are "capable of understanding and correlating all the instructions which are given to them." (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1294.)
Here, the record, considered as a whole, defeats defendant's instructional challenge. Viewing the evidence in a light most favorable to the judgment (People v. Ross (2007) 155 Cal.App.4th 1033, 1052), the jury could have reasonably found based on the testimony of both the victim and Detective Gottlieb that defendant acted as the initial aggressor in this case when he began verbally threatening and taunting the victim, who had come to his house uninvited, angrily demanding to know why the victim had knocked on his door so late the previous night. The evidence further shows defendant continued to fight despite the victim's laughing and efforts to get him to calm down. Repeating his taunts of "You think you're tough?" defendant finally became so enraged at the victim's laughter that he got his gun from the other room and shot the victim in the leg as he turned to leave, causing great bodily harm. No further evidentiary showing was required to support the court's giving of CALCRIM No. 3471. (See People v. Marshall, supra, 15 Cal.4th at pp. 39-40 [trial court must give a requested instruction if it is supported by substantial evidence, meaning "evidence sufficient to deserve jury consideration"].)
Defendant makes much of the fact that the prosecution argued in closing that "the only issue was whether or not [defendant] shot [the victim] as he was leaving," and did not argue that defendant was the initial aggressor or mutual combatant. However, as explained above, notwithstanding the prosecution's arguments, the evidence considered as a whole supported a jury instruction on whether defendant was the initial aggressor within the meaning of CALCRIM No. 3471. (See People v. Kraft (2000) 23 Cal.4th 978, 1053 ["In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.]"].)
Defendant's authority, People v. Ross, supra, 155 Cal.App.4th 1033, does not alter our analysis. There, the trial court erred when it instructed the jury that a person charged with assault cannot successfully plead self-defense if he was engaged in " 'mutual combat' " with the victim, but then denied the jury's request during deliberations for a legal definition of " 'mutual combat,' " a term of art that applies only to a violent confrontation conducted pursuant to some sort of mutual consent or agreement to fight (of which there was no evidence). (Id. at p. 1036.) Accordingly, the reviewing court held that reversal was required because the trial court "gave an unwarranted and dangerously incomplete instruction on a prosecution theory in rebuttal of the defense," such that it was reasonably probable that, without these errors, the jury would have returned a verdict more favorable to defendant. (Id. at p. 1054.) People v. Ross is thus inapposite. Here, unlike there, the instruction modeled on CALCRIM No. 3471 was correct and complete as given and, as we have already held, the evidence was sufficient to support it.
In any event, even assuming for the sake of argument the instruction was improper, we would find no prejudice on this record. The trial court clearly instructed the jury that "[s]ome of [the] instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. [¶] After you've decided that the facts are, follow the instructions that do apply to the facts as you find them." As explained, we assume on appeal that the jury is capable of understanding and applying this straightforward instruction. (People v. Fitzpatrick, supra, 2 Cal.App.4th at p. 1294.) Thus, assuming defendant were correct the CALCRIM No. 3471 instruction was not supported by the record, the jury would have been aware of its duty to disregard it. Accordingly, there is no reasonable probability that the jurors would have reached a verdict more favorable to defendant in the absence of error. (See People v. Ross, supra, 155 Cal.App.4th at pp. 1054-1055 [assessing prejudice under "the relatively lenient standard of People v. Watson (1956) 46 Cal.2d 818, 836"].)
III. Did the court abuse its discretion by not granting defendant probation?
Last, defendant contends the trial court abused its discretion by denying his request for probation. He reasons that significant mitigating factors including his mental disability and substance abuse problems far outweighed the applicable aggravating factors, and that the aggravating factors relied upon by the court were improper because they constituted elements of his offense. The governing law is not in dispute.
Defendant concedes he is presumptively ineligible for probation because he used a firearm upon the victim when committing his offense. Where this presumption applies, a court should grant probation only if it finds the case at hand is "unusual" in that "the interests of justice would best be served if the [defendant] is granted probation . . . ." (§ 1203, subd. (e)(2).) "In determining whether the statutory limitation on probation has been overcome, the court is required to use the criteria set forth in California Rules of Court, rule 413. If the court finds the case to be an unusual one, it must then decide whether to grant probation, utilizing the statutory criteria set forth in California Rules of Court, rule 414." (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 830 (Du).)
All references herein to a rule are to the California Rules of Court. --------
The trial court has wide discretion in weighing aggravating and mitigating factors when deciding whether or not to grant probation. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582; Du, supra, 5 Cal.App.4th at p. 825.) Moreover, just one valid aggravating factor will justify imposition of an upper term. (People v. Black, supra, 41 Cal.4th at p. 815.) "The court's discretion to identify aggravating circumstances is otherwise limited only by the requirement that they be 'reasonably related to the decision being made.' (Cal. Rules of Court, rule 4.408(a).)" (People v. Sandoval (2007) 41 Cal.4th 825, 848.) In determining " 'whether there are circumstances that justify imposition of the upper or lower term,' " the trial court may consider, among other things, "the record of the trial, the probation officer's report, and statements submitted by the defendant, the prosecutor, and the victim or victim's family. (§ 1170, subd. (b).)" (Ibid.)
On appeal, we review the record only for substantial evidence supporting the trial court's decision. (Du, supra, 5 Cal.App.4th at p. 825.) We will not substitute our judgment for that of the trial court unless the court's order is arbitrary, capricious or outside the bounds of reason. (Ibid.)
Here, defense counsel relied on the following mitigating factors when arguing defendant's case was one of the unusual cases in which the interest of justice would be best served by placing defendant on probation: (1) defendant's mental health problems; (2) lengthy drug use; and (3) lack of prior criminal history at the time of the offense.
The prosecutor, in turn, asked the court to follow the probation department's recommendation that defendant be incarcerated. The trial court agreed and sentenced defendant to eight years in prison, concluding this was not one of the "unusual" cases in which probation would be appropriate. In doing so, the court identified the following factors underlying its decision: (1) defendant "purposely tried to shoot [the victim] in the kneecap," evidencing particular violence and dangerousness to society (rule 4.421(b)(1)); (2) the victim suffered a very severe injury (rule 4.414(a)(4)); (3) defendant used a weapon (rules 4.414(a)(2), 4.421(a)(2)); and (4) his crime was particularly serious as compared to other instances of the same crime (rule 4.414(a)(1)).
Defendant argues the court improperly relied on the same facts the jury used to convict him of assault with a firearm and find true the allegations that he personally used a firearm and inflicted great bodily injury when committing this offense. (See rule 4.420(d) ["A fact that is an element of the crime on which punishment is being imposed may not be used to impose a particular term"].) We reject this argument. "[W]here the facts surrounding the charged offense exceed the minimum necessary to establish the elements of the crime, the trial court can use such evidence to aggravate the sentence. [Citation.] Stated another way, rule [4.420(d)] does not preclude a court from using facts to aggravate a sentence when those facts establish elements not required for the underlying crime." (People v. Castorena (1996) 51 Cal.App.4th 558, 562.)
Defendant's actions went beyond mere assault with personal use of a firearm and infliction of great bodily injury. (See People v. Williams (2001) 26 Cal.4th 779, 790 [the offense of assault (§ 245, subd. (a)) "only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another"]; People v. Lewis (2004) 120 Cal.App.4th 837, 853 ["Section 12022.7 requires a person 'personally inflict great bodily injury' on another in the commission or attempted commission of a felony. . . . [I]t does not require that the infliction be willful. The section has been interpreted to require only a general criminal intent, i.e., the defendant need not intend great bodily injury result, the only intent required is that for the underlying felony"].) As the trial court explained at the sentencing hearing, circumstantial evidence proved that defendant "purposely tried to shoot [the victim] in the kneecap," a particularly vicious and dangerous act that resulted in serious injury to the victim. (See In re Coley (2012) 55 Cal.4th 524, 557 [the sentencing judge "may take into account the court's own factual findings with regard to the defendant's conduct related to an offense of which the defendant has been acquitted," so long as the evidence establishes such conduct by a preponderance of the evidence].)
Based upon this record, the decision to deny probation stands. As explained above, even a single appropriate factor is sufficient to support an aggravated term. (People v. Williams (1991) 228 Cal.App.3d 146, 152-153.) Thus, even assuming for the sake of argument that the trial court improperly relied upon a factor consisting of an element of defendant's crime (like firearm use), the record established that the court also relied upon factors both proper and relevant, including his intentional infliction of serious bodily injury (rules 4.414(a)(1), 4.421(a)(1)) and conduct indicating a serious danger to society (rule 4.421(b)(1)). (See rule 4.421(c) [the court may rely on "[a]ny other factors statutorily declared to be circumstances in aggravation or that reasonably relate to the defendant or the circumstances under which the crime was committed" (italics added)].) IV. Habeas Corpus Petition.
In his consolidated petition for writ of habeas corpus (petition), defendant contends his trial counsel rendered ineffective assistance by failing to seek admission of evidence relating to the victim's prior bad acts for the purpose of bolstering his theory of self-defense and by failing to rebut the prosecution's bullet trajectory evidence. For reasons discussed below, we conclude the petition lacks facial merit because defendant has not made a prima facie showing that the alleged failures by trial counsel constituted deficient performance or prejudicially impacted the outcome of his case. (See In re Clark (1993) 5 Cal.4th 750, 781 ["Summary disposition of a petition which does not state a prima facie case for relief is the rule"].)
To prevail on a claim of ineffective assistance of counsel, the "defendant must show counsel's performance fell below a standard of reasonable competence, and that prejudice resulted." (People v. Anderson (2001) 25 Cal.4th 543, 569.) "Prejudice" in this context occurs only where defense counsel's deficient performance " 'so undermined the proper functioning of the adversarial process' " that the outcome cannot be deemed reliable. (People v. Kipp (1998) 18 Cal.4th 349, 366; see Strickland v. Washington (1984) 466 U.S. 668, 694 (Strickland) ["defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"].)
Under this standard, the defendant must overcome a strong presumption that counsel's conduct was sound legal strategy or otherwise within the wide range of reasonable professional assistance. (People v. Burnett (1999) 71 Cal.App.4th 151, 180; People v. Bunyard (1988) 45 Cal.3d 1189, 1215.) Further, if "a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel's performance was deficient." (People v. Kipp, supra, 18 Cal.4th at p. 366.)
We first address defendant's claim that his trial counsel failed to seek admission of evidence relating to the victim's prior bad acts "and/or object[] to the court's unreasonable orders . . . ." As we discussed at length above in part I (ante, pp. 5-9), defense counsel in fact argued for admission of a wealth of evidence relating to the victim's prior bad acts for purposes of impeachment and to prove his bad character or motive or habit on the day in question, citing Evidence Code sections 1101, subdivisions (b) and (c), 1103, subdivision (a), and 1105. The court excluded some of this evidence as substantially more prejudicial than probative and remote in time, but permitted the jury to hear evidence for impeachment purposes relating to three of the victim's recent felony convictions—for first degree burglary, driving in wanton disregard for the safety of others while evading peace officers and theft or unlawful taking or driving of a vehicle. We have already upheld the trial court's decision as a proper exercise of discretion under Evidence Code section 352. (Ante, pp. 6-8.) Moreover, in light of defense counsel's reasonable efforts to admit this evidence and the trial court's appropriate decision to exclude some but not all of it, there are no grounds for finding that counsel's performance in this regard fell below a standard of reasonable competence. (People v. Anderson, supra, 25 Cal.4th at p. 569.)
Defendant also condemns his counsel's failure to seek admission of evidence that the victim was " 'high' " during most of their interactions and that he had boasted about being " 'wanted' " by the police. Defendant's argument disregards the fact that the jury heard evidence from an innocent bystander that the victim appeared "whacked out" on drugs and was carrying a bag of "meth" at the time he was shot, and heard testimony from defendant that the victim had told him that he was wanted by law enforcement. The victim, in turn, testified that his relationship with defendant was essentially based on their drug usage. Moreover, defense counsel attested in her declaration attached to the petition that "on the night of the shooting [defendant] was not personally aware of [the victim's] past bad acts, other than [the victim's] advising him he sold drugs." On this record, it is unclear how any additional evidence of the victim's prior bad acts or drug activity would have bolstered defendant's theory that he shot the victim in self-defense because he feared him or because the victim threatened his safety. This is particularly true given that Detective Gottlieb testified based on his conversation with defendant in the patrol car after the shooting that defendant never mentioned that the victim threatened him with a knife or otherwise initiated the aggression.
Accordingly, for these reasons we conclude defendant cannot show his counsel's performance with respect to the evidence of the victim's prior bad acts fell below a standard of reasonable competence, or that a reasonable probability exists that, but for counsel's performance, he would have received a lesser sentence. Accordingly, he cannot meet his burden to prove ineffective assistance. (Strickland, supra, 466 U.S. at p. 694; People v. Anderson, supra, 25 Cal.4th at p. 569.)
We reach the same outcome with respect to counsel's purported failure to rebut the prosecution's bullet trajectory evidence. Defense counsel attests in her declaration that she objected when the prosecution called a witness to testify regarding where the bullet entered and exited the victim's leg on the ground that the witness "was not an expert in forensic evidence related to firearms and bullet trajectory." The trial court admitted the evidence "over [her] objection." The record reflects that the trial court explained when overruling counsel's objection to the witness's testimony that the court had not permitted the witness to testify about the bullet's trajectory, but only about the exit and entry wounds on the victim. The court added that the witness's testimony was appropriately based on her professional experience handling bodies in the coroner's office and not based on any purported expertise relating to bullet trajectory:
"THE COURT: [She] didn't really testify to trajectory and how it—all she did was say there was a chunk out of the floor.
"[DEFENSE COUNSEL]: No, she said it went from a downward
"THE COURT: That's when she was testifying about the photos on his leg, that you could see the entry wound was above the exit wound, which, if the person was standing up, the bullet would have been down, traveling at a downward trajectory, which was also obvious from the photos.
"[DEFENSE COUNSEL]: Correct.
"THE COURT: I don't know why he [sic] couldn't testify to that[.] You can lay a foundation that he's [sic] seen wounds before and exit/entry wounds, could look at it and from that, whether or not he [sic] has seen enough of these that he [sic] could say: The trajectory going through his leg. She had worked in the coroner's office for two years watching people shove rods through holes, which is why she had enough foundation to make that opinion, which is why I allowed the answer, but I don't remember allowing any answer about talking about where the bullet came from, and where it left the gun, to where it hit the floor; I don't think I let anybody testify to that." (Italics added.)
This record runs counter to defendant's argument that his counsel was ineffective because she failed to rebut the prosecution's presentation of prejudicial bullet trajectory evidence. Simply put, the court did not allow the witness to testify about the bullet's trajectory; the court allowed her to testify about the victim's entry and exit wounds based on her professional experience in the coroner's office. Defendant does not argue that the court's statements on the record mischaracterized the witness's testimony, or that the court's admission of her testimony was erroneous. Defendant cannot make a prima facie showing of ineffective assistance based on his trial counsel's failure to rebut bullet trajectory testimony the court never admitted. (Strickland, supra, 466 U.S. at pp. 687-688 [defendant must show counsel's representation fell below an objective standard of reasonableness under prevailing professional norms].)
In any event, the law is quite clear that it is not the role of the reviewing court to second-guess a trial counsel's strategic decisions when mounting a defense. Defendant has not satisfactorily explained how pursuing a bullet trajectory theory at trial would have led to a more favorable outcome given the wealth of evidence of his guilt, including his admission to Detective Gottlieb that he "got his gun and shot [the victim] in the leg." (See Strickland, supra, 466 U.S. at p. 690 ["strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable"]; Knowles v. Mirzayance (2009) 556 U.S. 111, 123 ["this Court has never required defense counsel to pursue every claim or defense, regardless of its merit, viability, or realistic chance for success"].)
Accordingly, his petition for writ of habeas corpus is denied for failure to state a prima facie case for relief. (People v. Duvall (1995) 9 Cal.4th 464, 474 [" 'For purposes of collateral attack, all presumptions favor the truth, accuracy, and fairness of the conviction and sentence; defendant thus must undertake the burden of overturning them. Society's interest in the finality of criminal proceedings so demands, and due process is not thereby offended' "].) The judgment stands.
DISPOSITION
The judgment is affirmed and the petition for writ of habeas corpus is denied.
/s/_________
Jackson, J. WE CONCUR: /s/_________
Siggins, P. J. /s/_________
Petrou, J.