Opinion
G039710.
1-29-2009
THE PEOPLE, Plaintiff and Respondent, v. FELIX GONZALEZ, Defendant and Appellant.
William H. Strohmeyer, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Not to be Published in Official Reports
FACTS
Appellant Felix Gonzalez did not approve of the relationship between his adult daughter Luz Beiza and Jason Neville. On the evening of December 2, 2006, he confronted Neville at Beizas home, and told him he did not want him coming around any more and wanted Neville to "stay away from his kids."
Rather than acquiescing to Gonzalez adjurations, Neville announced he planned to move in with Beiza. Gonzalez responded by challenging Neville to walk with him around the corner of the house, saying, "Lets go handle this around the corner." When Neville looked around the corner, he saw a car with two more men in it and decided he wanted no part of "handling" matters there. He turned to walk away, but as he walked back toward the front of the house, he was struck from behind. He fell to his knees and was struck a second time, one of the blows causing a laceration to the back of his head. Beiza helped him up and called the police.
Gonzalez was tried and convicted of Penal Code section 245, subdivision (a)(1), (aggravated assault, a felony) and Penal Code section 166, subdivision (c)(1) (violation of a protective order, a misdemeanor). He was sentenced to two years for the assault, one year for a prior felony conviction, and imposition of sentence on the misdemeanor was suspended.
DISCUSSION
Gonzalez filed an appeal, and we appointed counsel to represent him on that appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against his client, but advised the court he could find no issues to argue on appellants behalf. Gonzalez was invited to express his own objections to the proceedings against him, but did not. Under the law, this put the onus on us to review the record and see if we could find any issues that might result in some kind of amelioration of Gonzalez lot. (People v. Wende (1979) 25 Cal.3d 436.) It should be emphasized that our search was not for issues upon which Gonzalez would prevail, but only issues upon which he might possibly prevail.
We have examined the record and found no arguable issue. This is not surprising. In fact, it is what we find in the vast majority of cases in which appellate counsel files a Wende brief. Even the most cynical observer of the appellate system would have to recognize that appellate counsel has a financial incentive for finding issues. The simple matter is counsel makes more money if he/she finds an issue that is arguable than if he/she does not. So while it sometimes happens that an appellate court will find issues after appellate counsel has thrown in the towel, it is unusual.
This case is not unusual. We have reviewed the record and applicable law that applies to the issues appellate counsel first looked at and then abandoned. None has any merit. We have searched for other issues. We found none that we think has any chance of success.
The most interesting issue considered by appellate counsel, and the one on which we spent the most time, was the suggestion of inadequacy of trial counsel based on the fact neither he nor the prosecutor called Luz Beiza, a percipient witness, at trial. This was the basis of a new trial motion by Gonzalez.
The reason for questioning trial counsels performance is that Luz Beiza now says she was the assailant. After the trial, Beiza gave a statement to the police in which she claimed she — not her father — had been the person who struck Neville, causing his injuries. That was the basis of Gonzalez new trial motion.
At the hearing on that motion, trial counsel testified he did not contact Luz Beiza because he had no reason to think her testimony would help his client and because he thought the prosecution would call her. The trial courts confidence in the conviction was not shaken by the statement, and he did not find it to be enough to grant a new trial. Both these decisions were well within his discretion.
To support a new trial motion, evidence such as Beizas change of heart would have to render a different result probable on retrial and it has to be evidence that was not known to the party offering it and not discoverable with reasonable diligence. (People v. Dyer (1988) 45 Cal.3d 26, 50.) This evidence was certainly discoverable with reasonable diligence. Nor could we quarrel with an assessment by the trial judge that it would not likely result in a different result on retrial. Its timing and the relationship of the witness and the accused would make it highly suspect.
As we suggested, however, there is a possible issue concerning the reasonable diligence of trial counsel. At the new trial motion, counsel testified he did not contact Beiza because he did not expect her testimony to be helpful. This was likely a reasonable decision to make. After all, counsel knew what his client was telling him; we dont. But we do not have enough information to tell whether this was a good call or not.
For that reason, inter alia, inadequacy of counsel in this case — as in an overwhelming number of cases — is a matter addressable by writ of habeas corpus rather than direct review. We have no record of the strategies and considerations of trial counsel that would allow us to judge his performance fairly. He testified at the new trial motion, but there was no issue raised at that time about his competency — all that was being discussed was due diligence in the "undiscovered witness" context and the possibility Beizas new statement might result in a different result. Without a record that speaks to the reasons counsels decisions were made, we cannot second-guess them.
Having before us an inadequate record for evaluation of counsels decision whether to contact Luz Beiza, and having found no other arguable issues in the record we do have, we affirm the judgment.
WE CONCUR:
OLEARY, J.
FYBEL, J.