Opinion
F050871
11-16-2007
THE PEOPLE, Plaintiff and Respondent, v. RICHARD LEE MEANS, Defendant and Appellant.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
STATEMENT OF THE CASE
On February 9, 2006, the Fresno County District Attorney filed a first amended information in superior court charging appellant as follows:
Count I—attempted murder (Pen. Code, §§ 187, subd. (a), 664) with personal use and intentional discharge of a firearm causing great bodily injury (§§ 12022.53, subds. (b)-(d), 12022.7, subd. (a));
Count II—assault with a firearm (Pen. Code, § 245, subd. (a)(2)) with personal use of a firearm and personal infliction of great bodily injury, (§§ 12022.5, subd. (a)(1), 12022.7, subd. (a));
Count III—possession of a firearm by an ex-felon (Pen. Code, § 12021, subd. (a)(1));
Count IV—carrying a concealed firearm while prohibited from possessing one (Pen. Code, § 12025, subds. (a)(2), (b)(4)); and
Count V—carrying a loaded firearm while prohibited from possessing one (Pen. Code, § 12031, subd. (a)(1), (a)(2)(D)).
The district attorney specially alleged that appellant had sustained a prior serious felony (§ 667, subd. (a)(1)), a prior strike (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and had served a prior prison term (§ 667.5, subd. (b)).
On the same date, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations.
On February 21, 2006, jury trial commenced and the court granted appellants motion to bifurcate trial of the prior conviction allegations.
On February 22, 2006, appellant stipulated to a prior conviction of assault with a firearm in exchange for dismissal of the prior prison term allegation on motion of the prosecutor.
On March 1, 2006, the jury found appellant guilty of all substantive counts and found the remaining special allegations to be true.
On March 29, 2006, in a response to a letter written by appellants mother, the trial court appointed substitute counsel to determine the existence of a colorable claim of ineffective assistance on the part of defense trial counsel.
On May 2, 2006, the court found a colorable claim of ineffective assistance and ordered appointed counsel, Barbara ONeill, to be substitute counsel for all purposes.
On May 26, 2006, substitute counsel filed a motion for new trial alleging ineffective assistance. On June 6, 2006, the prosecution filed written opposition to the motion. On June 27, 2006, substitute counsel filed written declarations in support of the motion.
On June 29, 2006, the court conducted a contested hearing on the new trial motion.
On June 30, 2006, the court denied the new trial motion after considering additional evidence from the trial record. Although the court found trial counsels performance as to investigation to be deficient, the court ultimately concluded that appellant failed to prove prejudice arising from that performance.
On the same date, the court denied appellant probation and sentenced him to a total term of 43 years to life in state prison. As to count I, the court imposed the doubled upper term of 18 years plus a term of 25 years to life for discharging the firearm causing great bodily injury. As to count II, the court imposed the doubled middle term of six years plus three years for inflicting great bodily injury and 10 years for the firearm use but then stayed all of these terms (Pen. Code, § 654). As to count III, the court imposed a concurrent doubled middle term of four years. The court dismissed counts IV and V with credit for time served. The court awarded 457 days of custody credits, imposed a $10,000 restitution fine (§ 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (§ 1202.45), and ordered appellant to provide samples of bodily fluids and prints (§ 296).
We note that the abstract of judgment incorrectly specifies that the suspended Penal Code section 12022.5, subdivision (a)(1) enhancement term was imposed on count "10." The term in fact pertained to count II. We will direct the trial court to make such correction.
On appeal, respondent correctly notes: "The abstract of judg[]ment fails to mention any restitution, fines or fees and that appellant was required to submit samples under section 296." An appellate court may order correction of abstracts of judgment that do not accurately reflect the oral judgments of sentencing courts. (People v. Mitchell (2001) 26 Cal.4th 181, 185) We will direct the trial court to amend the abstract of judgment to incorporate all oral judgments from sentencing and to transmit certified copies of the amended abstract to all appropriate parties and entities.
On July 13, 2006, appellant filed a timely notice of appeal.
STATEMENT OF FACTS
At 10:25 p.m. on April 27, 2005, 26-year-old Damon Pearson was visiting his cousin at the Whispering Woods Apartments on North Fresno Street in Fresno. Pearson was visiting a portion of the complex that consisted of a two-story apartment building with breezeways that allowed access from one side to the other. Although it was dark at the time of Pearsons visit, the complex had lights above a carport and other electrical illumination.
Pearsons family was having a fish fry and about 25 to 30 people were visiting, drinking, and playing music. From outside, the music could be heard when people entered or departed the cousins apartment but otherwise the sound could not be heard well. Pearson had about two beers and stood on the outside apartment stairwell with four other people. Appellant, a resident of apartment 103, called to Pearson and asked to speak to him. Pearson had seen appellant at the apartment complex and heard people refer to him as "Rich" or "Richard." However, appellant had never talked to him before.
Pearson walked toward appellant in the middle of the parking lot and the two men talked. Appellant asked whether Pearson could turn down the music because it was loud and appellants son was having trouble sleeping. Their conversation started calmly but then the tone escalated when Pearson explained he was just a visitor and had no control over the music. Appellants facial expression changed and he appeared angry.
Appellant called Pearson out to the back of the apartment complex. Pearson took a few steps in that direction and then declined to go further. Pearson thought appellant wanted to engage in a fistfight. As the two men stood 10 to 15 feet apart, some people interceded, advised them not to argue, and told them to go their separate ways. Appellant flinched as if he was going to punch Pearson and the latter swayed to avoid being punched.
Pearson said he was not armed and did not attack or threaten appellant. At one point, Pearson thought he heard the clicking of a gun. When appellant next swayed toward Pearson, he pulled out a gun and shot Pearson in the left side. The impact of the discharge knocked him to the ground. According to Pearson, a lot of people in the complex saw him get shot but "[t]hey are not going to testify. People are scared." As Pearson tried to sit up after the discharge, appellant kicked him back to the ground, hovered over him with the gun, and pointed the weapon at Pearsons head. Pearson told appellant there was nothing he—Pearson—could do because he had been hit and shot. Pearson then heard a lot of yelling. His cousin came downstairs, applied pressure to his wound, and asked who shot him. Pearson told her "Richard."
Charles B., age 17, said he was a cousin or relative to both appellant and Pearson. Charles said he was walking from the basketball courts to his aunts Whispering Woods apartment on the evening of the offense. He heard a "pow" come from the direction of apartment 102 and then some screaming. After Charles heard the "pow," he saw appellant standing near a two-tone "Delta 84" in the carport of the complex. Appellant saw Charles and said "whats up?" Appellant got into the passenger seat of the "Delta 84" and his wife, Ann, got into the drivers seat and drove away toward Fresno Street. Charles went into a hallway of the complex and saw Pearson lying on the ground. Charles ran toward Fresno Street and an officer told him to get on the ground. Charles complied but one of the neighbors said "thats not the guy."
Linda Alonzo-Regalado testified she lived in apartment 104 of building 5243 at Whispering Woods. She said her apartment was located across from building 5253. While Linda was in her apartment on the evening in question, she heard a gunshot come from the breezeway of building 5253. She then heard people yelling and screaming. Linda knew appellant as "Richard" from building 5253. Five or 10 minutes after hearing the shot, Linda saw appellant walk down her hallway to a parked vehicle that looked like a gold Cadillac. Linda did not see appellant depart in the vehicle but did see Charles chase after the car as it departed.
Fresno Police Officer Daniel Iriye arrived at the complex to conduct a walk-through when he heard a dispatch call about a possible shooting. He stopped a departing car and the driver said someone had been shot. The driver walked Iriye to the victims location. As Iriye walked through the complex, he saw people point in the direction of Charles. When Charles ran toward Fresno Street, Iriye detained him at gunpoint. Several people said Charles was the wrong person and Iriye determined he was a witness. As Iriye detained Charles, other people pointed at a brown Oldsmobile Delta 88 departing the complex. Charles took Iriye to Pearson and Iriye summoned medical help.
Fresno Police Officers Stephen Latham and Jacob Wallace were conducting a traffic stop near the complex when they received a call about the shooting. They responded to the scene within minutes and walked to the victims location near the center of the complex. Latham said a group of 30 to 40 people had gathered in the area. Latham walked through the crowd and saw Pearson lying on the ground north of a breezeway where other officers were rendering him aid.
After an ambulance arrived, Officer Iriye sought out witnesses to the shooting. Someone mentioned the name of an individual who lived in apartment 103, but Iriye was unable to locate him. While at the complex, Latham heard a dispatch report that the victim had been transported to University Medical Center (UMC). The dispatcher also reported that the shooting suspect was named Richard and he resided in apartment 103. Latham and other officers went to the apartment but no one responded to their knocking. Another broadcast reported that Richard had fled in a brown vehicle. Officer Wallace heard a broadcast that the suspect vehicle was a brown Delta occupied by a Black male and female.
Pearson underwent two surgeries at UMC. Herbert Gladen, M.D., assistant chief of surgery at UMC, testified the first surgery was to repair holes in his stomach and diaphragm and to insert a tube to evacuate air and blood from his chest. The second surgery was to remove a bullet that had lodged in his spinal canal. Dr. Gladen said the injuries were consistent with being shot at close range and would have resulted in death absent treatment.
Officer Latham attempted to interview witnesses on the evening of the shooting but residents were reluctant to give information. Latham said residents described the disturbance, the shouting, and the gunshot "[b]ut nobody saw anything." Latham was unable to interview anyone who had been near the victim. Officer Iriye spoke to Patricia Amaya, owner of the Olds Delta, on the evening of the shooting. Amaya resided in apartment 102 of building 5253. Amaya said she had loaned her car to one Anna, who said she had an emergency. At trial, Amaya said she could not recall anything because she was under medication. She admitted frequently loaning her car to appellant and his wife, Anna, who resided in apartment 103. Amaya said appellant would fix her car. Amaya testified she loaned her car to Anna on the day of the shooting so Anna could go to the store and not because Anna had an emergency. She allowed officers to look through her vehicle but they did not find identifiable fingerprints of appellant there.
Officers looked for a gun and shell casings at the scene but found none. Officer Latham, a police officer for 20 months, said a revolver retains a shell casing until it is manually ejected while a semiautomatic weapon ejects a casing. Detective Dennis Krug, a detective for 25 or 26 years, offered similar testimony about the various firearms. Krug said doctors recovered the bullet from Pearsons body and Krug sent it to the California Department of Justice Crime Laboratory for testing. The Department of Justice examiner reported the bullet was consistent with a .38 special or a .357 Magnum bullet and could have been fired from a .38 Colt special revolver.
Detective Krug said appellants name was brought up at the scene on the evening of the incident. Based on that information, Krug prepared a six-person photographic lineup that included appellants picture. From that lineup, Pearson identified appellant as the person who shot and kicked him. Alonzo-Regalado identified appellant as the person she thought got into the car and drove away on the evening of the shooting.
On May 3, 2005, Detective Krug interviewed Pearson. Pearson said he did not know appellant but had seen him at the complex on prior occasions. Pearson described the shooter as a Black male in his mid-to-late 30s, standing six feet tall with a husky build. Pearson also said the shooter wore a blue and white sport shirt bearing the number 32. Pearson said he did not see appellant pull out the gun. However, he was able to describe it as a revolver with a six-inch barrel.
Detective Krug testified that officers located appellant at his mothers home on Drummond Avenue in Fresno on May 17, 2005. Krug estimated the home was eight to 10 miles from apartment 103 at Whispering Woods. Appellant was unarmed at the time of apprehension. The parties stipulated that appellant had previously been convicted of a felony.
Defense
Fresno Police Officers Brian Pierce and Jay Van Meter were the first officers to arrive at the scene of the shooting. They did not speak with Pearson at the apartment complex but Pierce spoke with the victim for 15 or 20 minutes at UMC. Pearson told Pierce he was sitting in front of an apartment when a domestic dispute arose nearby. Pearson attempted to intervene but the male member of the couple told him it was none of his business. According to Pearson, the male then pulled a gun and shot him. Pearson said the male was 58", weighed 180 pounds, and wore a blue or black baseball cap. Pearson also said he had never seen the male before. In Officer Pierces view, Pearsons story did not add up.
DISCUSSION
Introduction
In this appeal, appellants contentions pertain solely to claims of ineffective assistance of both his original trial counsel (trial counsel) and counsel substituted for the purpose of investigating and bringing a new trial motion (substitute counsel).
In a lengthy and multipart argument, appellant cites trial counsels omissions as errors requiring reversal, in and of themselves. In addition, appellant asserts that substitute counsel was ineffective in the handling of his new trial motion. That motion was based on two limited grounds—trial counsels failure to investigate and failure to assert a self-defense theory at trial. That motion was denied based on a finding of insufficient showing of prejudice. Appellant specifically submits that prejudice would have been shown and the new trial motion granted had substitute counsel requested a copy of the trial transcript to fully assess and present trial counsels performance.
In appellants view, a complete examination of the trial transcripts would have revealed to substitute counsel "that the issue wasnt solely one of presenting a viable defense as it concerned trial counsels incompetence, but one of inexperience or lack of diligence, coupled with an utter failure by trial counsel to attack the abject weaknesses in the prosecutions case so as to raise a credible contention that the prosecution had failed to prove their case beyond a reasonable doubt."
In short, appellant maintains his trial counsels lack of preparation, combined with his failure to object to certain evidence, was sufficient to undermine confidence in the outcome of his trial. Appellant then goes further to argue that these omissions would have been clearly presented to the court on motion for new trial had substitute counsel timely requested and reviewed a copy of the trial transcript to accurately assess and demonstrate the level of incompetence and prejudice arising from trial counsels performance. Lastly, appellant separately argues substitute counsel was ineffective at sentencing in failing to object to imposition of the upper term.
We will review the procedural history underlying his many contentions, set forth the applicable law, and then address the contentions in a chronological fashion, first with respect to trial counsel and then with respect to substitute counsel.
Procedural History
On March 1, 2006, the jury returned verdicts finding appellant guilty of attempted murder, assault with a firearm, being an ex-felon in possession of a concealed and loaded firearm, and finding various special allegations to be true. After the verdicts were rendered, appellants mother wrote to the trial judge and stated:
"[M]y son didnt say anything in his behalf because his lawyer didnt even want to hear what he had to say, the only way he would come to see him he had to write the bar association. And when he did come to see him he talked to him like he was a dog, told him that he was not going to win his case and nothing he had to say would help him. U-honor I dont think its fair the way my boy was represented, the jury had found him guilty before the trial ever got started. As I sat there listening at each Jur[]or saying guilty guilty guilty!!!!, yes it ripp[]ed my heart out for them not to know the truth.... [H]es all I got in this old world. Yes, I feel for Mr. Pierson but my son feared for his life too thats why he was silence all through the trial.... I know how the DA coached the witness what to say even. Please consider the truth."
The clerk of court found a sheet of word processed or typed notes in the jury room after deliberations. The notes stated in relevant part:
"▪ Do we all believe Damon Pearsons testimony? [¶] ... [¶]
"▪ Reasons to believe the testimony
"▪ Means was leaving the scene
"▪ He did not return for some time ...
"▪ FPD officers state that people were pointing toward the apartment (Which officers said this)
"▪ Someone gave the name `Rich to the police
"▪ No evidence to the contrary."
The prosecutor and the trial court acknowledged the notes could have been prepared in the jury room or could have been prepared at a jurors home.
The court shared the foregoing notes with both counsel on March 29, 2006, and indicated it would appoint an attorney to determine and investigate a possible colorable claim of ineffective assistance. On May 2, 2006, the court found a colorable claim of ineffective assistance of counsel and appointed new, substitute counsel to investigate the allegation.
On May 26, 2006, substitute counsel filed a motion for new trial based on ineffective assistance of trial counsel. Appellant based his claim on counsels failure to visit appellant in jail, failure to investigate, and failure to present a theory of self-defense at trial. On June 29, 2006, the court conducted a contested hearing on the motion and took the matter under submission. On June 30, 2006, the court denied the motion, stating:
"I want to start with the first grounds having to do with the failure to adequately investigate. Because its the courts view from all the evidence that Ive heard in this matter as well as the conduct of the trial itself as it played out that trial counsel did not provide reasonably competent representation in this regard. And, Ms. ONeill [substitute counsel], you argued it I think correctly, no reasonable evaluation of Mr. Hermans conduct in the context of the In Re Cordero case would suggest that he fulfilled any reasonably obligation to undertake an adequate investigation of this matter.
"It seems to me — and I know there has been some dispute about what the reasonable standard should be and whether there needs to be expert evidence about it, but no reasonable defense attorney, first of all, would rely on simply the District Attorneys word that a witness is unavailable or that witness is avoiding process or something to that effect without undertaking some independent effort to locate that witness. And any reasonable defense attorney, in the courts view, would attempt to locate and interview certainly all possible favorable defense witnesses, people like Mr. McDonald and the defendants ex-wife. And the fact that an investigator reported that they couldnt contact a witness by telephone would simply not be sufficient in that regard. It seems to me where theres clearly, such as in the case of ... Demarea Pearson where there are several addresses at which he could be located that defense counsel needs to direct an investigator to do more than just make a phone call as a minimum of being an adequate investigation of the defense of the case.
"So its the courts view that Mr. Hermans really complete failure to make any reasonable efforts to attempt and interview — attempt to locate and interview potentially favorable witnesses for the defense and the failure to attempt to interview prosecution witnesses. And I would agree with you as well, Ms. ONeill, that talking to witnesses outside the courtroom as they are about to get on the stand is not a reasonable pretrial investigation. That that demonstrates a failure to undertake any adequate investigation in Mr. Means case under any reasonable standard for defense counsel.
"Now, with respect to the other matter which is this so-called claim of self-defense — you know, I recognize that there is a dispute in the evidence here between Mr. Herman and the Defendant himself. And, frankly, although I can understand perhaps a lot of reasons why a person in Mr. Hermans position would not undertake the kind of investigation that ought to be undertaken as Ive alluded to earlier, finances would be one of them — Im not going to comment about the ADO office, but I do know that undertaking investigations can be an expensive process. And there may be some motivation for an attorney not to do that. There may be nothing more than — laziness could be the result of that. I cant see any motivation why a person in Mr. Hermans position would have, were it true being told by his client that he had a self-defense, not present that self-defense or not address the theory of the case in the fashion which his client has described it to him. That simply defies any explanation in the courts view.
"And I mention that because it seems to me we have a dispute here as I mentioned. And, essentially, here he is standing convicted, Mr. Means, and arguing now that well, he told his lawyer he acted in self-defense and thats the defense that should have been presented. More importantly, thats the defense he wanted to get up and tell the court about. Nothing from what I just read to you from the transcript of the trial would suggest that what Mr. Means is now saying about this self-defense is really true or accurate.
"Based on the differences in the testimony and the evidence that Ive heard, its the courts view, and I conclude, that this assertion that Mr. Means acted in self-defense really didnt arise until after he was convicted by this jury. So I do not find that in this case factually that Mr. Means was deprived of any meritorious defense based on his claim of self-defense through Mr. Hermans representation. It just seems to me in balancing all the evidence that this is really a thought that occurred after the conviction in this case.
"So having said all of that, as I said, the final question is, is there prejudice? And its the courts view that really the Defendant here hasnt offered anything more than a possibility that one, had the Defendants ex-wife or this Mr. McDonald or Mr. Daniels, whatever his name is, had been found and interviewed and testified in this case that he might have been able to say — or they might have been able to say whether the Defendant did or did not have a gun when he left the apartment complex.
"There is far more than a possibility that had there been contact with Demarea Pearson or the other victims or family or friends of the victim who had been present there, had they been interviewed and testified that they might have provided some exculpatory evidence for the defense.
"Same thing is true about people in the apartment complex. None of these are more than possibilities, as Mr. Cohan [deputy district attorney] has pointed out. This is not a situation where the defense on this motion for a new trial has brought forth some witness who had they been found would have testified in some exculpatory manner. Im not criticizing the defense for doing that because, frankly, it may very well be that that just doesnt exist. But its the truth nevertheless.
"It simply seems to me that those possibilities do not constitute a reasonable probability that a more favorable result would have been obtained in the absence of Mr. Hermans failures here. Thats the test ... under People versus Cox. The simple truth is the defense has failed to meet that test and ... the motion for the new trial is denied."
Applicable Law: Proving Ineffective Assistance of Counsel
An appellant bears the burden of proving ineffective assistance of counsel. (People v. Haskett (1990) 52 Cal.3d 210, 248; People v. Pope (1979) 23 Cal.3d 412, 425.) To establish constitutionally inadequate representation, the appellant must show that (1) counsels representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsels representation subjected the defense to prejudice, i.e., there is a reasonable probability that but for counsels failings the result would have been more favorable. (People v. Haskett, supra, at p. 248; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)
Judicial scrutiny of an attorneys performance must be highly deferential. (Strickland v. Washington (1984) 466 U.S. 668, 689 (Strickland).) We presume that counsels conduct falls within the wide range of reasonable professional assistance, and we accord great deference to counsels tactical decisions. Were it otherwise, appellate courts would be required to engage in the perilous process of second-guessing counsels trial strategy. (People v. Frye (1998) 18 Cal.4th 894, 979.) Tactical errors are generally not deemed reversible, and counsels decision-making must be evaluated in the context of the available facts. (People v. Bolin (1998) 18 Cal.4th 297, 333.) On direct appeal, a reviewing court will reverse a conviction for ineffective assistance of counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his or her act or omission. (People v. Ray (1996) 13 Cal.4th 313, 349; People v. Fosselman (1983) 33 Cal.3d 572, 581.) Furthermore, counsel need not make a meritless objection to avoid an appellate claim of ineffective assistance. (People v. Ochoa (1998) 19 Cal.4th 353, 432.)
A defendant who raises the issue on direct appeal must establish deficient performance based upon the four corners of the record. (People v. Cunningham (2001) 25 Cal.4th 926, 1003.) If counsels omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed. When, however, the record sheds no light on why counsel acted or failed to act in the manner challenged, the reviewing court should not speculate as to counsels reasons. To engage in such speculations would involve the reviewing court in the perilous process of second-guessing. Because the appellate record ordinarily does not show the reasons for defense counsels actions or omissions, a claim of ineffective assistance of counsel should generally be made in a petition for writ of habeas corpus, rather than on appeal. (People v. Diaz (1992) 3 Cal.4th 495, 557-558; People v. Lucero (2000) 23 Cal.4th 692, 728-729.) If the record on appeal fails to show way counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268; People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.)
In addition to showing counsels performance was deficient, the defendant must also show prejudice flowing from counsels performance or lack thereof. (People v. Williams (1997) 16 Cal.4th 153, 215.) Prejudice is shown when there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. (Strickland, supra, 466 U.S. at p. 694.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Ibid.; In re Neely (1993) 6 Cal.4th 901, 909.)
When an ineffective assistance claim can be resolved solely on lack of prejudice, a reviewing court need not determine whether counsels performance was objectively deficient. (Strickland, supra, 466 U.S. at pp. 697, 699-700; People v. Boyette (2002) 29 Cal.4th 381, 430-431.) A court need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsels performance. "`If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (In re Cox (2003) 30 Cal.4th 974, 1019-1020, quoting Strickland, supra, 466 U.S. at p. 697.)
ALLEGED ERRORS OF TRIAL COUNSEL
Failure to Impeach Victim with Prior Offenses
Appellant argues that trial counsel failed to make a colorable claim for impeachment of victim Pearson with the latters prior offenses.
At a February 21, 2006 hearing on motions in limine, trial counsel noted that victim Pearson had sustained an August 27, 2003 misdemeanor conviction for resisting arrest. The court ruled: "Unless you can show me a case that says [Penal Code section] 148(a)(1) violation by itself is a crime of moral turpitude Im not going to allow Mr. Pearson be impeached with it." Trial counsel also noted that Pearson had been charged with petty theft (Pen. Code, § 484, subd. (a)) as a juvenile in Oakland. However, trial counsel and the prosecutor could not say whether that charge had been adjudicated to be true. The court indicated it would exclude evidence of the juvenile charge absent evidence that it was adjudicated to be true. Trial counsel ultimately declined to impeach Pearson with evidence of prior offenses.
As to the resisting arrest conviction, the California courts have held that resisting an executive officer (Pen. Code, § 69) and battery upon a peace officer (Pen. Code, § 243, subd. (c)) are crimes of moral turpitude. However, the reported cases have not determined whether the crime of resisting a peace officer (Pen. Code, § 148) is a crime of moral turpitude. (People v. Williams (1999) 72 Cal.App.4th 1460, 1462, fn. 3.) Thus, there was no available case law upon which trial counsel could rely in seeking to impeach Pearson on this basis.
Nevertheless, evidence of a misdemeanor conviction, whether documentary or testimonial, is inadmissible hearsay when offered to impeach a witnesss credibility. Nothing in the hearsay rule precludes proof of impeaching misdemeanor conduct by other, more direct means, including a witnesss admission on direct or cross-examination that he or she committed such misconduct. (People v. Wheeler (1992) 4 Cal.4th 284, 299-300 & fn. 14.) As to this rule of law, the trial court noted: "[I]n no event am I going to allow, if there is not a conviction here, either side to get into the underlying circumstances of this crime and have a crime within a crime trial here under [Evidence Code section] 352."
In view of the courts ruling as to the conduct underlying the section 148 adjudication, trial counsel was not obligated to make an idle motion. (People v. Torrez (1995) 31 Cal.App.4th 1084, 1091-1092.)
With respect to Pearsons juvenile case, the court ruled: "[U]nless there is evidence that it was adjudicated to be true then Im precluding any mention of it in Mr. Pearsons testimony for the reasons Ive already mentioned about doing a trial within a trial under 352."
In view of the courts reliance upon Evidence Code section 352, trial counsel was not obligated to make an idle motion with respect to the juvenile matter. (People v. Torrez, supra, 31 Cal.App.4th at pp. 1091-1092.) In any event, the trial court noted "weve got some last minute information about some of these witnesses, and particularly priors." In view of the late evidence, the court specifically asked counsel whether he was prepared to go to trial and was not asking for a continuance. Both trial counsel and appellant signified that appellant elected to go forward with trial.
On appeal, appellant further contends that Pearson admitted a 2003 drug conviction during his preliminary hearing and "may have had another conviction for possession of cocaine for sale in 2002." He implies that these offenses clearly involved moral turpitude and should have been used for impeachment purposes. A review of the preliminary hearing transcript reveals that Pearson was on felony probation for a drug charge. Pearson believed the underlying offense was a 2003 conviction for possession of a controlled substance for sale. However, he was not certain of the exact date of the offense. During the hearing on motions in limine, trial counsel noted Pearsons prior conviction was for a violation of Health and Safety Code section 11350, possession of controlled substances. Mere possession of a controlled substance does not involve moral turpitude. (People v. Cloyd (1997) 54 Cal.App.4th 1402, 1409.) Thus, there was no basis to impeach Pearson with his prior drug conviction.
Appellant further contends Pearson was the sole percipient witness to the shooting and "any competent attorney would have realized the need to attack his credibility from every angle." In view of Pearsons injuries and subsequent medical care, trial counsel could have reasonably concluded that the jury would view him with great sympathy and would not readily accept repeated attempts to impeach Pearson with prior convictions or inconsistencies in his testimony at trial. In the heat of trial, defense counsel is best able to determine proper tactics in light of the jurys apparent reaction to the proceedings. (People v. Frierson (1979) 25 Cal.3d 142, 158.)
Trial counsel did not render ineffective assistance by failing to impeach the victim with the latters prior offenses or conduct underlying such offenses.
Failure to Recognize Crawford Error
Appellant next contends Officers Latham, Wallace, and Iriye offered testimony that contained "multiple levels of hearsay" and that trial counsel was ineffective by failing to object on grounds of hearsay, prosecutorial misconduct, and violation of Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
Prior to trial, the prosecutor sought admission of spontaneous statements made by residents of the Whispering Woods complex at the time of the offense. These statements were uttered to or in the presence of Officers Latham, Wallace, and Iriye. The prosecutor outlined the evidence in a trial brief filed February 21, 2006, stating:
"When Officer D. Iriye arrived [at the apartment complex] he saw witness Charles [B.] running after a brown 4-door sedan. Thinking [Charles B.] was involved in the shooting, Officer Iriye stopped [Charles B.] at gunpoint. [Charles B.] spontaneously stated that the shooter was driving away in the brown Oldsmobile. By then the car had driven away. After Officer Iriye determined [Charles B.] was not involved, [Charles B.] took Officer Iriye to where the victim, Damon Pearson was lying on the ground.
"As Officer J. Wallace drove to the scene, he heard a radio broadcast that the suspect was possibly leaving in a brown vehicle, heading south on Fresno Street. He and Officer S. Latham arrived at the same time and they ran to the victim, Damon Pearson, who had a group of 20-30 people standing around him. An unidentified black male who was standing near Mr. Pearson as he lay on the ground bleeding said to Officer Wallace, `Youd better go get the guy who did this. This male was very upset, and was screaming and nearly crying. When Officer Wallace asked the male if he knew who did it, the male stated that he did, and gave a detailed description of the shooter. He said that Richard, last name unknown, an adult black male, approximately 5 11" tall, with a husky build had shot the victim. He further said that Richard had left the area in a brown `88 four door Delta, going southbound on Fresno Street just prior to the police arriving on the scene. Officer Wallace turned and broadcast the information over his radio, and when he turned back to get additional information from the male, he was gone.
"During the investigation, residents of the apartment complex gave statements as to what they had seen and heard that evening. [¶] Monica Carmona was sleeping when she was woken by the sound of a gunshot. She went outside and saw a large group of people and the victim at the bottom of the stairs. She heard some of the women near the victim saying, `Richard shot him.
"Linda Alonzo-Regalado was inside her apartment when she heard a shot and then screaming coming from the north side of ... Fresno Street. She ran outside and saw the Defendant standing on the south side of the building. She then went to the north side and saw several people near the victim, some of whom were screaming. She heard more than one of the men and women say, `Richard did it."
The court conducted an Evidence Code section 402 hearing, heard the testimony of Officers Wallace and Latham, and heard the arguments of counsel. The court then ruled in relevant part:
"[T]here has to be some evidence to demonstrate that the declarant was not simply repeating what somebody else had told him or her. And there is nothing in this case to preclude that reasonable inference. Or any evidence that anybody saw the shooting apart from Mr. Pearson himself.
"You know ... the court, recognizing that the People have mentioned that Mr. Pearson is going to testify about this shooting — and I havent heard any testimony from Mr. Pearson. It could be that Mr. Pearson might come in here and testify that there were several individuals who might meet the description of this unidentified black male who were present when the shooting took place. And its possible that that foundation that Ive just mentioned could be satisfied somewhere else in the Peoples case.
"But based upon the testimony of these two officers the courts not satisfied this foundation can be laid. And so that for that reason Im going to make a tentative ruling to preclude any mention of either of these statements that these officers overheard, whether it be from the crowd or this unidentified black male unless and until there is some additional foundation presented and unless and until the court rules that its otherwise admissible.
"So I guess the safest thing to do at this point here, Mr. Cohan, is for you to direct these two officers that unless I tell them specifically otherwise, they are not to make any mention of the statements that they heard from these individuals we just referenced. [¶] ... [¶]
"... [W]ith respect to the two ladies ... that is, Ms. Carmona and Ms. Alonzo-Regalado ... Im just going to make a tentative ruling for the guidance of counsel, the same principles, of course, would apply that people in the crowd saying something to the effect of Richard did it, Richard shot him — unless there is something to demonstrate that there was a witness to the shooting here in the same fashion that I just described I think the courts ruling is going to be the same...."
At trial, Officer Latham testified without objection that he arrived at the Whispering Woods Apartments on the evening of the offense and heard a radio dispatch that "Richard" was the possible shooter. The dispatcher also said that "Richard" lived in apartment 103 and fled the scene in a brown car. Officer Wallace testified without objection that he heard over the police radio that the suspected shooter left the scene in a brown Delta. Officer Iriye, who had stopped Charles B., testified without objection that people were screaming he had the wrong man and that he was "advised" the suspect lived in apartment 103.
Appellant contends:
"... Since it was fairly evident as testified to by these officers who were actually at the crime scene that no witnesses were talking and what was heard was hearsay, it follows that the dispatch the officers heard was also based on hearsay and in the infancy stages of investigation. Counsel should have recognized this maneuver and lodged an objection based on hearsay and prosecutorial misconduct, particularly since the trial court had already ruled this evidence inadmissible though in a slightly different context.
"In addition, trial counsel failed to realize that this evidence was error of constitutional dimension under Crawford v. Washington (2004) 541 U.S. 36 ... (Crawford). This is because, absent Pearson, there were no witnesses to the shooting presented by the prosecution at trial. Therefore, the reasonable inference is that the content of the radio dispatch and what Iriye heard was information adduced by investigating officers out in the field by hearsay declarants. Indeed, had the prosecution had access to these witnesses, there is little doubt they would have been produced for trial, particularly in light of the fact that the key and only prosecution witness who testified that appellant was the shooter told two stories about who shot him. [¶] ... [¶]
"... [P]olice-initiated contacts with potential `witnesses in the present case were clearly `testimonial in nature because they are undertaken by law enforcement in contemplation of pursuing criminal charges against a particular person, in this case, appellant. (Crawford, supra, 541 U.S. at p. 68.)
"Here, there is no tactical reason for trial counsel not to have objected on Crawford or any other grounds...."
Appellant essentially contends that his trial counsel engaged in prejudicial ineffectiveness by failing to invoke the ruling of Crawford, supra, 541 U.S. 36, to bar admission of inculpatory statements of crime scene witnesses who were absent from trial. A criminal defendant has the right under both the federal and state Constitutions to confront the witnesses against him. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) The phrase "witnesses against him" is not limited to in-court witnesses, but also applies to the admission of hearsay statements. (See Crawford, supra, 541 U.S. at p. 68.) The object of the confrontation clause is to "ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." (Maryland v. Craig (1990) 497 U.S. 836, 845.)
This right of confrontation, however, is not absolute. The high court recently reaffirmed the long-standing exception that "[t]estimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." (Crawford supra, 541 U.S. at p. 59, fn. omitted; see People v. Cromer (2001) 24 Cal.4th 889, 892.) Evidence Code section 1291 codifies this traditional exception. (People v. Alcala (1992) 4 Cal.4th 742, 784-785; People v. Wilson (2005) 36 Cal.4th 309, 340-341.)
While Crawford did not define the term "testimonial," it explained that the term encompasses statements made under circumstances that would lead an objective witness reasonably to believe that they would be available for use at a later trial. At a minimum, the term applies to prior testimony at a preliminary hearing, before a grand jury, at a former trial and to police interrogations. (Crawford, supra, 541 U.S. at p. 68.) Crawford was concerned with the substantive use of hearsay evidence that was admitted within an exception to the hearsay rule. Crawford did not suggest that the confrontation clause was implicated by admission of hearsay for nonhearsay purposes. In fact, the Supreme Court expressly stated that the confrontation clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." (Id. at p. 59, fn. 9.) The reason for that rule is clear. If hearsay is admitted for a nonhearsay purpose, it does not turn upon the credibility of the hearsay declarant, making the cross-examination of that person less important. The hearsay relied upon by an expert in forming his or her opinions is "examined to assess the weight of the experts opinion," not the validity of the hearsays content . (People v. Thomas (2005) 130 Cal.App.4th 1202, 1210.)
Because Crawford did not define "police interrogation," the meaning of this term has been the subject of vigorous debate. The case of Davis v. Washington (2006) ___ U.S. ___ (Davis) resolved much of the dispute, holding: "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Davis, supra, ___ U.S. at pp. __, ___ [126 S.Ct. at pp. 2273-2274], fn. omitted.)
The Davis court noted four factors distinguishing testimonial from nontestimonial statements made to law enforcement officers. Indicia of nontestimonial statements are (1) they pertain to events that are currently happening, as opposed to relating to past events; (2) there is an ongoing crisis or emergency situation; (3) the elicited statements are necessary to resolve the ongoing emergency situation; and (4) the level of formality, with testimonial statements being elicited in a formal or structured setting, such as an interrogation at a station house. (Davis, supra, ___ U.S. at pp. ___, ___ [126 S.Ct. at pp. 2276-2277].) By way of analogy, the Davis court noted a distinction in the law between questions designed to secure officer safety or the safety of others and those designed to elicit testimonial evidence from a suspect. (Id. at p. 2277, citing New York v. Quarles (1984) 467 U.S. 649, 658-659.)
Davis determined that statements made during 911 calls generally are not testimonial because the primary purpose of a 911 call is to enable police assistance to meet an ongoing emergency. Statements elicited by the emergency dispatcher are necessary to enable the police to resolve the present emergency rather than simply to learn what happened in the past. The caller is "seeking aid, not telling a story about the past." (Davis, supra, ___ U.S. at p. ___ .) Yet, a conversation with an emergency dispatcher that begins as a nontestimonial interrogation to determine the need for emergency assistance could evolve into a testimonial interrogation if the dispatcher continues to question the caller after he or she has gained the information needed to address the exigency of the moment.
Davis also determined that statements elicited by responding officers at a crime scene may be testimonial if no emergency is in progress and the purpose of the questioning is to elicit information concerning possibly criminal past conduct. Where the statements at issue are "neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation, the fact that they were given at an alleged crime scene and were `initial inquiries is immaterial" in determining whether the statements are testimonial. (Davis, supra, ___ U.S. at p. ___ .)
A Crawford analysis is distinctly different than that of a generalized hearsay problem. Crawford established that the Sixth Amendment bars the admission of testimonial statements of a declarant who does not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination. "Testimonial statements" are only those statements that cause the declarant to be a witness within the meaning of the Sixth Amendment and include statements in response to police interrogation designed to elicit evidence to convict a defendant of a crime. (People v. Chaney (2007) 148 Cal.App.4th 772, 779.) Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. (People v. Pedroza (2007) 147 Cal.App.4th 784, 792.)
In the instant case, trial counsel could have reasonably concluded that statements of bystanders regarding "Richard," apartment 103, and the brown Delta were made while police officers sought to meet an ongoing emergency arising from the shooting of Damon Pearson. In other words, he could have reasonably determined the statements were not the product of an interrogation but were uttered about events as they were actually happening and, therefore, were not subject to exclusion under the principles of Crawford. (Davis, supra, ___ U.S. at p. ___ .) Once again, criminal defense counsel is not obligated to make an idle motion. (People v. Torrez, supra, 31 Cal.App.4th at pp. 1091-1092.)
Failure to Object to Testimony Admitted without Proper Foundation
Appellant contends trial counsel was ineffective by failing to object to the ballistics testimony of Detective Dennis Krug and Officer Stephen Latham on the ground of inadequate foundation.
He specifically argues:
"Detective Dennis Krug, who had not been qualified as a ballistics or firearms expert, testified that the bullet taken from Pearson had been sent to the Department of Justice for testing to determine the caliber and the type of firearm that might have fired this bullet. Without objection, Krug testified that ... the results from the Department of Justice examiner indicated that the bullet was consistent with a .38 special or a .357 Magnum bullet and could have been fired from a .38 colt revolver. Krug stated that a revolver would not eject a cartridge but would remain in the cylinder of the gun.
"Similarly, Officer Latham, again without objection, was allowed to testify to the differences between a semi-automatic weapon and a revolver, the latter of which would not eject casings. Of course, it is arguable whether or not defense counsel opened the door for this testimony by cross-examining Latham as to whether any shell casings had been found at the scene. Nonetheless, Latham had not been qualified as a gun expert and testifying about not finding any casings which is something that would be viewed as an event falling within the common perception of anyone, the differences between what weapon does or does not eject casing is something that calls for expert opinion.
"Aside from the utter lack of foundation as to Krugs ability to read ballistics results, and the failure of either Krug or Latham to qualify as experts (Evid. Code, § 801), a fact that Krug readily admitted, Krugs testimony regarding what a Department of Justice Examiner said as to the test results was hearsay. [Citations.]
"Counsel should have objected and there was no tactical reason not to do so...."
On February 21, 2006, the prosecutor advised the court that Detective Krug had given defense counsel and him a three-page report on ballistics information. The prosecutor said the ballistics information had already been received and passed on to the defense but that this was the first time he had seen the information in written form. Trial counsel said that provision of the written report did not change his readiness for trial.
Detective Krug subsequently testified he had the Department of Justice test a bullet recovered from Damon Pearsons body. Krug said he had the bullet tested "for the caliber of the bullet and to determine what type of firearm may have fired the bullet." Although Krug said he was not an expert, he further explained that experts can tell "the possibility of a certain number of different firearms that might have fired that bullet." Upon further questioning, Krug stated: "The Department of Justice examiner indicated that it [the bullet] was consistent with a .38 special or a .357 Magnum bullet. She provided the characteristics and indicated that it could have been fired from a .38 colt special revolver." Krug also explained the difference between a revolver and an automatic firearm: "A revolver does not eject a cartridge upon being fired. It would remain in the cylinder. A semiautomatic pistol has a slide which would eject and would be left behind." Officer Latham offered similar testimony. As to a revolver, he stated: "If a revolver is used, the shell casing would stay with the gun until unloaded manually." As to an automatic firearm, he stated: "A semiautomatic type of gun uses the recoil from the firing of the bullet to operate a slide, and ejects the shell casing from the gun at the time its fired."
Here, trial counsel may have elected not to interpose an objection to the ballistics testimony of the two officers for valid tactical reasons. First, counsel had received the ballistics information in advance of trial from the prosecutor. On February 21, 2006, Detective Krug presented both trial counsel and the prosecutor with a written report setting forth that same data. Thus, the contents of the report did not constitute a surprise to the defense. Second, although Detective Krug frankly acknowledged he was not an expert on bullet characteristics, he did read ballistics information from the report of the Department of Justice examiner and defense counsel declined to interpose a hearsay objection to that testimony. Counsel may very well have taken this approach to minimize the possibility that the prosecution would call the examiner to the stand and thereby elicit far more detailed scientific testimony that would have bolstered the prosecution case and harmed the defense. Third, trial counsel may have deemed the officers ability to distinguish between revolvers and automatic weapons an unsuitable subject for evidentiary attack. Krug testified he had been a detective for a quarter century and was assigned to the felony assault robbery unit. Latham had been a police officer for about 20 months and was working in a high crime area. Given their tenure as officers and current assignments, trial counsel could have reasonably concluded they had a substantial amount of expertise with respect to firearms and that any evidentiary objection would have been futile or would have alienated the jury.
Appellant also contends other instances demonstrated "counsels ineptitude or lack of preparation." These included: (a) allowing Krug to testify without objection that he was not sure where appellant was arrested but it might have been at appellants mothers home; (b) allowing Krug to testify that he did not believe appellant had a weapon on his person when he was arrested; and (c) allowing the prosecutor to ask: "Does the fact that [appellant] was not found with a gun in his possession when he was found, does that indicate to you as a police officer that he did not shoot Mr. Pearson?" As to the first item, Krug testified he believed appellant was located at his mothers residence and that the address of the residence was in the 1000 block of East Drummond in Fresno, approximately eight to 10 miles away from Whispering Woods Apartments. Trial counsel could have declined to object, reasonably concluding the statements were accurate, inoffensive, and tending to show a close familial relationship between parent and child. As to the second item, trial counsel could have reasonably concluded that Krug spoke truthfully as to the absence of a weapon when police located appellant. Counsel could have reasonably deemed Krugs response to be favorable to the defense and not calling for an evidentiary objection. As to the third item, appellant acknowledges that his counsel unsuccessfully interposed a relevancy objection to Krugs testimony but claims counsel "should have objected based on assuming facts not in evidence and speculation." Appellants contention must be rejected. Detective Krug essentially stated the obvious and even improperly admitted opinion does not require reversal if it is not reasonably probable the jury would have reached a different result absent admission of the opinion testimony. (People v. McFarland (2000) 78 Cal.App.4th 489, 496.)
Alleged Prejudice Arising from Trial Counsels Conduct
Appellant contends the result of the proceedings would have been different but for trial counsels unprofessional errors.
He specifically argues:
"Thus, the defense case hinged on `identity, and it is in this context that counsels conduct was inexplicable. He argued `no corroboration and told the jury not to believe Pearson, yet his omissions provided the very corroboration and credibility he argued wasnt present. Indeed, as a sole percipient prosecution witness to this shooting, Pearson was a man who had already told two different stories about who had shot him before he even reached the witness stand at trial. Not fifteen minutes after he had been shot, Pearson told police he had attempted to intervene in what was a domestic dispute and got shot for his trouble. A male and female were seen leaving in a van. Pearson was able to identify both individuals in some detail claiming the female was wearing a green shirt and blue jeans and the male was 58", 180 pounds, black, and wearing a black or blue baseball cap. Yet a week later, appellant had become the shooter and all of a sudden Pearsons description of the suspect changed to a black male, husky, 60", and in a blue and white shirt with the number `32 on it.
"Pearsons credibility could have been further undermined because he was no stranger to the criminal justice system having been convicted of at least one maybe two possession for sale offenses and was on felony probation, evidence defense counsel completely omitted from any motions in limine.
"Further, Pearsons testimony simply didnt ring true. For the jury to believe Pearson, they would have to believe that appellant specifically intended to kill Pearson in front of some fifteen to thirty witnesses just because Pearson told appellant he didnt live in the apartments and had no control over the noise level. Neither of Pearsons stories `added up. Yet, trial counsel allowed inadmissible hearsay and evidence based on Crawford error to corroborate Pearsons otherwise shaky testimony. [¶]...[¶]
"The `relative incriminatory effect of trial counsels failure to object in the present case is self-evident. There was no tactical basis in law or reason not to object to multiple levels of hearsay that directly pointed the finger at appellant, whose name[] just happened to be `Richard, who just happened to live in Apartment 103 at Whispering Woods, who just happened to be one of some thirty people out in the parking lot when the offense occurred, and who just happened to have left in a brown car. In point of fact no one was talking at the crime scene and no one was talking at trial except Pearson. Police were attempting to talk to witnesses at a chaotic scene, but the prosecution couldnt even produce one witness to corroborate Pearsons claim although Officer Wallace told the jury that the people he spoke to `were cooperative with ... [him].
"Thus, counsels omission allowed the prosecution to corroborate an already suspect Pearson with evidence that was inadmissible as a matter of law; all of which was damaging to appellant. Such evidentiary objections involve basic skills of trial advocacy and certainly are known or in the exercise of reasonable diligence should be known to trial counsel by the time a defense attorney handles a case where the total exposure of a criminal defendant is a life top."
In the instant case, trial counsel proceeded on the theory that appellant was not the person who fired the shot at Damon Pearson. To support this theory, counsel elicited the testimony of Officer Brian Pierce. Pearson told Pierce he had never seen the male suspect before and did not know where he lived. Pearson did say the suspect was a Black male who wore a blue or black baseball cap, was 58" tall, and weighed 180 pounds. In a subsequent interview with Detective Krug, Pearson said he did not know the suspect but had seen the suspect on prior occasions at the complex and knew him by sight. Pearson described the suspect as a Black male in his mid-to-late 30s. He said the suspect was about six feet tall with a husky build, and was possibly wearing a numbered blue and white football jersey. Trial counsels closing argument highlighted these inconsistencies and focused on the lack of corroborating identity and physical evidence. Trial counsel was not ineffective simply because his tactics and theory of the case were ultimately unsuccessful. (People v. Wallin (1981) 124 Cal.App.3d 479, 484-485.)
Alleged Pervasive Ineffectiveness of Trial Counsel
Appellant further contends a review of this case demonstrates that trial counsels ineffectiveness was so pervasive as to amount to a constructive denial of counsel under United States v. Cronic (1984) 466 U.S. 648 (Cronic).
He specifically argues:
"Appellant contends a review of the entire record demonstrates a constructive denial of counsel occurred making a prejudice analysis unnecessary. (U.S. Const., 6[th] & 14[th] Amends., Cal. Const., art. I, §§ 7, 15, & 24, Cronic, supra, 466 U.S. at p. 654, fn. 11). Appellant also argues these errors deprived him of his due process right to a fair trial and to put the prosecution case to a fair adversarial testing (Crane v. Kentucky (1986) 476 U.S. 683, 690 ...; Chambers v. Mississippi (1973) 401 U.S. 294, 302 ....) [¶]...[¶]
"... Here, defense counsel committed his first misstep in the case in opening argument by faulting the prosecutions shoddy investigation, and then literally filling in the weaknesses of the prosecutions shoddy investigation by failing to object to damaging evidence that inculpated appellant and strengthened the otherwise suspect testimony of the states only prosecution witness .... A juror note found in jury room aptly demonstrates that one of the reasons to believe Pearsons testimony was because `people were pointing toward the apartment and `someone gave the name" Rich" to police. Consequently, trial counsels errors completely undermined the strength of counsels closing argument pointing out the deficiencies in the prosecutions case.
Appellant acknowledges that Evidence Code section 1150 prohibits the admission of evidence of the subjective reasoning process of trial jurors. However, he submits his claim is not made in conjunction with a jury misconduct issue and, therefore, may be considered in the context of this appellate contention. (People v. Steele (2002) 27 Cal.4th 1230, 1261.)
"The United States Supreme Court recognized that there are `circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified. ... [O]ne such circumstance is where `counsel entirely fails to subject the prosecutions case to meaningful adversarial testing, in which case the adversary process itself becomes `presumptively unreliable. (Cronic, supra, 466 U.S. at p. 658; see also Bell v. Cone (2002) 535 U.S. 685, 696 ....)
"This is such a case .... ... Here ... appellants counsel `entirely fail[ed] to subject the prosecutions case to meaningful adversarial testing by in effect, committing errors that actually strengthened the prosecutions case in chief.... [¶] ... [¶]
"Here, as noted, defense counsels actions actually assisted the prosecution in its evidence against appellant thus depriving appellant of a core defense tactic of undermining a weak case in chief. When this occurs, the `process [has lost] its character as a confrontation between adversaries. (Cronic, supra, 466 U.S. at pp. 656-657.) Appellant is entitled to a new trial[.]" (Fn. omitted.)
Reduced to its essentials, appellants contention is that (a) trial counsel was ineffective in presenting his opening statement; (b) that alleged ineffectiveness allegedly bolstered the prosecutions burden of proof; and (c) the trial court should have granted his motion for new trial based on the effectiveness of his trial counsel.
Appellants initial point of attack is trial counsels opening statement. Counsel declared to the jury:
"... Good morning, ladies and gentlemen of the jury. Mr. Cohan [deputy district attorney] addressed a couple of points. Said there was a fight between the victim and my client Mr. Means. The victims name is Damon Pearson. Said two other people intervened, tried to break up this fight. [¶]... [¶]
"... The evidence is going to show that two other males were in close proximity, appeared to be breaking up an escalating argument between my client, Mr. Means, and the victim, Damon Pearson. Nowhere are you going to find any evidence that anybody spoke to those two gentlemen. Those gentlemen are there but nobody bothered to talk to them. Nobody bothered to find out who they were.
"In fact, the possession of a gun charge plus — I mean, common sense tells you the attempt murder charge and assault with a gun charge — the DA has one witness. And thats the victim. The victim Damon Pearson is the only person that puts a gun in my clients hand. And that — that is suspect too.
"Immediately after this shooting on April 27th, 2005, approximately an hour later one of the responding officers went over to UMC and asked Damon Pearson what happened. Damon Pearson, basically, said that — and this is within an hour — that he observed an unknown male and female arguing in this apartment complex parking area. This male that he had never seen before suddenly pulled out a gun and shot him; that he had never seen that person before.
"Six days later on May 3rd another officer went over to UMC after Mr. Pearson had recovered, brought a photo lineup. And my client Mr. Means was picked out of that photo lineup. And youll hear evidence to that.
"And Mr. Pearson said that he — he didnt know the suspect but he had seen him on prior occasions, contrary to what he said six days earlier on the night of the incident on April 27th. Mr. Pearsons probably going to be called as a witness sometime this afternoon by the District Attorneys Office. And his story is going to be a lot like his story was back on August 10th of 2005.
"There was a hearing prior to this trial today. Its called a preliminary hearing. At that point Mr. Pearson, he knew a lot more. He knew everything.... General rule and common sense tells us that closer to the incident a recollection is better.... [¶] ... [¶]
"The District Attorney isnt going to produce any evidence of — they dont have a gun. Mr. Cohen [sic] made the statement during his opening that several other people heard and seen the event. However, as I stated before, no other witnesses observed this shooting.
"The testimony is also going to flesh out that there was about 25 to 30 people that were in proximity to where the shooting took place. Its in an apartment complex. Theres many parking spaces. Theres a party going on that night in an apartment. A lot of people are spilling out between the apartment unit and the parking complex, 25 to 30 people. Not a lot of people that you can fit in a small apartment. Yet no one else — no one else puts a gun in my clients hands. The only person that puts a gun in my clients hands is Damon Pearson, the victim.
"There is not going to be — I mean, this isnt going to be a gang deal. There is not going to be any evidence of any kind of bad blood between the two or anything like that. There is not going to be any evidence of retaliation, shootings before or after. Basically, its — the case is simple according to the DA. Its their victim, who got shot, who says on the night of the incident that an unknown male shot him when he observed this unknown male and a female arguing in the parking lot. You are going to hear that it was my client Richard Means.
"I believe that after all the evidence that you will — you wont be able to put a gun in Mr. Means hands and, therefore, youll have to find — give my client an acquittal."
Appellants first contention is that trial counsel committed a misstep by faulting the prosecutions "shoddy investigation" in his opening argument. A careful re-reading of the foregoing argument simply does not reveal any significant faultfinding or critique of the prosecutions investigative methods and findings. Appellants contention is either overstated or misplaced in view of the actual text of trial counsels opening statement.
Appellant next contends his trial counsel failed to "object to damaging evidence that inculpated appellant and strengthened the otherwise suspect testimony of the states only prosecution witness."
Appellant also submits trial counsel "allowed inadmissible hearsay and evidence based on Crawford error to corroborate Pearsons otherwise shaky testimony." However, appellant does not identify specific witnesses or their specific statements. Rather, he simply refers to "multiple levels of hearsay that directly pointed the finger at appellant, whose name just happened to be `Richard, who just happened to live in Apartment 103 at Whispering Woods, who just happened to be one of some thirty people out in the parking lot when the offense occurred, and who just happened to have left in a brown car."
As noted above, a defendant claiming ineffective representation bears the burden of proving by a preponderance of the evidence both (1) that counsels performance was deficient, i.e., that the representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsels unprofessional errors, the result would have been more favorable to the defendant, i.e., a probability sufficient to undermine confidence in the outcome. (In re Ross (1995) 10 Cal.4th 184, 201; see also Strickland, supra, 466 U.S. 668, 688, 694.) The burden rests on the defendant to show that counsels conduct falls outside the wide range of competent representation. To prevail on such a claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission. (People v. Ray (1996) 13 Cal.4th 313, 349.)
The United States Supreme Court has recently reemphasized that, in applying these principles, a court must indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight. (Bell v. Cone (2002) 535 U.S. 685, 702.) Accordingly, a court must view and assess the reasonableness of counsels acts or omissions under the circumstances as they stood at the time that counsel acted or failed to act. (People v. Ledesma, supra, 43 Cal.3d at p. 216; see also People v. Scott (1997) 15 Cal.4th 1188, 1212.)
In the instant case, appellate counsel does not set forth the alleged errors and omissions of trial counsel except in the most general terms, i.e., Crawford error arising from the statements of apartment complex residents to the dispatcher and responding officers on the evening of the crime. Assuming arguendo this preliminarily satisfies his burden of proof, appellant contends trial counsels ineffectiveness was so pervasive as to amount to a constructive denial of counsel under Cronic. The Supreme Court has uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding. (Cronic, supra, 466 U.S. at p. 659, fn. 25.) After briefly describing Davis v. Alaska (1974) 415 U.S. 308, in which counsel was prevented from cross-examining a crucial prosecution witness, the Cronic court observed: "Apart from circumstances of that magnitude, however, there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt." (Cronic, supra, 466 U.S. at p. 659, fn. 26.)
In the instant case, appellant has failed to demonstrate the total absence of counsel or that his trial counsel was prevented from assisting him during a critical stage of the proceeding. The Supreme Court spoke in Cronic of the possibility of presuming prejudice based on an attorneys failure to test the prosecutors case. The court indicated such failure must be complete. (Bell v. Cone, supra, 535 U.S. at p. 697, citing Cronic, supra, 466 U.S. at p. 659.) Here, trial counsel did fulfill his duties as an advocate. First, trial counsel presented an opening statement that outlined the defense theory and subsidiary theories of the case. In presenting that statement, counsel noted that none of the 24 to 30 people in the area of the shooting identified appellant as the assailant. Counsel also noted that the victim gave inconsistent versions of what occurred and that the assault weapon was not found. Second, trial counsel diligently cross-examined such prosecution witnesses as Charles B., Damon Pearson, Linda Alonzo-Regalado, Officer Stephen Latham, Officer Jacob Wallace, Patricia Amaya, Detective Dennis Krug, and Officer Daniel Iriye. Third, trial counsel mounted a vigorous defense by calling Officer Brian Pierce, who testified that victim Pearson gave him a different version of events shortly after the shooting. According to Pierce, Pearson said an unknown Black male shot him after Pearson walked over to check on a domestic dispute in the apartment complex. Finally, at closing argument trial counsel emphasized Pearsons inconsistent statements to authorities, the lack of any corroborating eyewitnesses, and the absence of any corroborative physical evidence tying him to the Oldsmobile Delta.
In our view, trial counsel subjected the prosecutions case to meaningful adversarial testing and, therefore, the rule of Cronic does not apply in this situation.
ALLEGED ERRORS OF SUBSTITUTE COUNSEL
Appellant asserts substitute counsel was prejudicially ineffective in both the bringing of the new trial motion and at sentencing by failing to object to imposition of the upper term.
New Trial Motion
A motion for new trial is an application for reexamination of an issue in the same court, before another jury, after a verdict has been given. (Pen. Code, § 1179.) The motion may be made after either a jury or a court trial. (In re Rothrock (1939) 14 Cal.2d 34, 40-41.) If the motion is granted, the parties are placed in the same position as if there had been no trial. (Pen. Code, § 1180.) The judge who presides at trial should hear and determine the motion for a new trial. (People v. Tokich (1954) 128 Cal.App.2d 515, 517.)
The standard of review used by a trial court acting under Penal Code section 1181 is different from the standard used by an appellate court under the same section. In ruling upon a motion for a new trial, the trial court is required to independently weigh the evidence. (People v. Drake (1992) 6 Cal.App.4th 92, 98.) The trial court does not disregard the verdict or decide what result it should have reached if the case had been tried without a jury. Rather, it considers the proper weight to be accorded to the evidence and then decides whether or not, in its opinion, there is sufficient credible evidence to support the verdict. (Dominguez v. Pantalone (1989) 212 Cal.App.3d 201, 215, citing People v. Robarge (1953) 41 Cal.2d 628, 633.) The appellate court will not modify or set aside the verdict if there is any substantial evidence to support it. (People v. Drake, supra, 6 Cal.App.4th at p. 98.) On appeal, a trial courts ruling on a motion for new trial is subject to review for abuse of discretion. (People v. Clair (1992) 2 Cal.4th 629, 667.)
A trial court may grant a motion for new trial on the ground of ineffective assistance of counsel. (People v. Chavez (1996) 44 Cal.App.4th 1144, 1148.) Although ineffective assistance of counsel is not among the grounds enumerated for ordering a new trial under Penal Code section 1181, motions alleging ineffective assistance are permitted pursuant to the constitutional duty of trial courts to ensure that defendants be accorded due process of law. To prevail on this ground, a defendant must show both that his counsels performance was deficient when measured against the standard of a reasonably competent attorney and that counsels deficient performance resulted in prejudice to 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, 209, 212.)
Appellant contends substitute counsel was ineffective by failing to request and review the reporters transcripts of appellants trial.
He specifically argues:
"... Counsel admits she was appointed for the express purpose of conducting an ineffective assistance of counsel investigation on March 29, 2006. The record also discloses that counsel had at least six weeks to prepare for an evidentiary hearing and could have asked that a copy of the transcript be made at any time. In fact, the trial court gave counsel the opportunity to obtain the trial transcripts prior to making a determination on the motion for a new trial and counsel declined.
"Substitute counsel also declares that she reviewed police reports, the preliminary hearing transcript, the court file and trial counsels file, as well as interviewing appellant and his mother. Yet, any reasonably competent criminal defense attorney acting as a diligent advocate carefully reviews any and all materials that would aid in an assessment of the performance of counsel.... [¶] ... [¶]
"Here ... no `plausible tactical explanation can be conceived ... for substitute counsels failure to thoroughly review the trial transcripts in this matter, particularly since substituted counsel knew on or before May 26, 2006 that defense counsel had conducted minimal to no investigation in this case and thus, had proceeded to trial without presenting `any witnesses or other evidence. Indeed, the inexperience or incompetence of counsel should not have been lost on substituted counsel who met appellants burden of showing that trial counsel had utterly failed to investigate this case. Under such circumstances, any reasonably competent defense attorney acting as a diligent advocate would question counsels performance at trial once discovery of trial counsels inadequate and unreasonable investigation had come to light."
An indigent defendant is presumptively entitled to a free trial transcript. (People v. Hosner (1975) 15 Cal.3d 60, 64-66.) However, this court held almost four decades ago:
"[A]n indigent defendant is not entitled, as a matter of absolute right, to a full reporters transcript of his trial proceedings for his lawyers use in connection with a motion for a new trial; but, since a motion for a new trial is an integral part of the trial itself, a full reporters transcript must be furnished to all defendants, rich or poor, whenever necessary for effective representation by counsel at that important stage of the proceeding. And, because there are no mechanical tests for deciding when the denial of a full reporters transcript for argument on a motion for a new trial is so arbitrary as to violate due process or to constitute a denial of effective representation, each case must be considered on its own peculiar facts and circumstances." (People v. Lopez (1969) 1 Cal.App.3d 78, 83.)
At the June 29, 2006 hearing on motion for new trial in the instant case, the trial court noted that the testimony offered with respect to the motion had raised issues about the credibility of certain witnesses. For that reason, the court was prepared to give the prosecutor and substitute counsel additional time to request a full or partial trial transcript and additional evidence bearing on the new trial motion. Both counsel declined the offer. Substitute counsel and/or her investigator, David Schiavon, had all of the relevant police reports, the witness statements, and the preliminary hearing transcript. Substitute counsel offered a vigorous argument in favor of new trial based on trial counsels total lack of investigation. Counsels argument persuaded the trial court, which expressly acknowledged trial counsels "failure to undertake any adequate investigation in Mr. Means case under any reasonable standard for defense counsel."
Where, as here, counsels strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsels acts or omissions. (People v. Jones (2003) 29 Cal.4th 1229, 1254.) Here, substitute counsel could have reasonably concluded that trial counsels lack of pretrial investigation was the strongest possible basis for the new trial motion. A reviewing court will not second-guess counsels reasonable tactical decisions. (People v. Riel (2000) 22 Cal.4th 1153, 1185.)
Failure to Object to Imposition of Upper Term on Blakely Grounds
Blakely v. Washington (2004) 542 U.S. 296 (Blakely).
Appellant contends the trial court violated his Sixth and Fourteenth Amendment rights to a jury trial and his substitute counsel, who was also appointed for sentencing purposes, was ineffective by failing to object to imposition of the upper term of nine years for attempted murder (count I).
He specifically argues:
"In the present case, the trial court sentenced appellant to an upper term of 9 years for the attempted murder of Pearson and then doubled this term to 18 years as a result of appellant being a second strike offender. In imposing the 9 year term the trial court apparently relied upon appellants criminal history in aggravating his term. [¶] ... [¶]
"The constitutional underpinning of the Blakely/Apprendi line of cases is the jury trial right of the Sixth Amendment to the United States Constitution, which is the right to have a jury decide the facts upon which punishment is based. Therefore, appellant submits that he was entitled under the Sixth and Fourteenth Amendments to a jury determination of the existence of any facts used as a basis for increasing his sentence beyond the term that would result from the statutory midterm sentence under California law, which in this case would have otherwise been ten years (five years doubled to ten under the Three Strikes law)." (Fn. omitted.)
The trial court sentenced appellant in relevant part:
"So on Count One violation of Penal Code Section 664/187, that is attempted murder, found true by the jury, given your criminal history, separate and apart from that strike offense, I find the circumstances in aggravation to outweigh those in mitigation. Im ordering you committed to the Department of Corrections on that count for the nine-year term which is doubled because of the strike for 18 years. And pursuant to Penal Code Section 12022.53(d), the enhancement found true by the jury, Im ordering you in addition to that 18 years to serve at an additional 25 years to life in the state prison. And with respect to the other enhancements found by the jury on that count, which is the 12022.53(c) as well as the 12022.7(a), the court is going to strike those enhancements which are respectively 20 and three years, pursuant to Penal Code Section 12022.53(f). Therefore, the total term is ... 18 years, plus 25 to life in the state prison."
In Blakely, supra, 542 U.S. 296, the United States Supreme Court reaffirmed the rule announced in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi): "`Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Blakely, supra, 542 U.S. at p. 301, quoting Apprendi, supra, 530 U.S. at p. 490.) One year later, the United States Supreme Court reiterated the right to a jury trial requires that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." (United States v. Booker (2005) 543 U.S. 220, 244.)
In People v. Black (2005) 35 Cal.4th 1238 (Black I), the California Supreme Court considered the effect of Apprendi and Blakely on this states Determinate Sentencing Law and held that the imposition of upper terms does not constitute an increase in the penalty for a crime beyond the statutory maximum, and therefore "the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence ... does not implicate a defendants Sixth Amendment right to a jury trial." (Black I, supra, 35 Cal.4th at p. 1244.)
In Cunningham v. California (2007) 549 U.S. ___ (Cunningham), the court held Californias Determinate Sentencing Law violates a defendants Sixth and Fourteenth Amendment right to a jury trial to the extent it permits a trial court to impose an upper term based on facts—other than the fact of a prior conviction—found by the court rather than by a jury beyond a reasonable doubt.
"As this Courts decisions instruct, the Federal Constitutions jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. Apprendi v. New Jersey, 530 U.S. 466 ... (2000); Ring v. Arizona, 536 U.S. 584 ... (2002); Blakely v. Washington, 542 U.S. 296 ... (2004); United States v. Booker, 543 U.S. 220 ... (2005). `[T]he relevant "statutory maximum," this Court has clarified, `is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. Blakely, 542 U.S., at 303-304 ... (emphasis in original).... [¶] ... [¶]
"... Contrary to the Black courts holding, our decisions from Apprendi to Booker point to the middle term specified in Californias statutes, not the upper term, as the relevant statutory maximum. Because the DSL [Determinate Sentencing Law] authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent." (Cunningham, supra, 549 U.S. at pp. ___, ___ [127 S.Ct. at pp. 860, 871], fn. omitted.)
In People v. Black (2007) 41 Cal.4th 799 (Black II), the Supreme Court held in response to Cunningham:
"[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial. [¶] ... [¶]
"Accordingly, so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury....
"... Under Californias determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not `legally entitled to the middle term sentence, and the upper term sentence is the `statutory maximum. [¶] ... [¶]
"... The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. (Cunningham, supra, __ U.S. at p. __ ; Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres).) `[R]ecidivism ... is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence. (Almendarez-Torres, supra, 523 U.S. at p. 243.)" (Black II, supra, 41 Cal.4th at pp. 812-813, 818, fn. omitted.)
The Black II court specifically concluded that a defendants criminal history is an aggravating circumstance that independently satisfies Sixth Amendment requirements and renders the defendant eligible for the upper term of imprisonment. (Black II, supra, 41 Cal.4th at pp. 805-806.) Therefore, the trial court in the instant case did not err by citing appellants "criminal history" as a circumstance in aggravation in support of imposition of the upper term.
Appellant nevertheless contends "counsel was ineffective for failing to object in light of the questionable viability of People v. Black (2005) 35 Cal.4th 1238, 1254 ..., a decision which is currently under review by the United States Supreme Court in a related case noted below. In this respect, reasonably diligent counsel is expected to know the state of the law ... and should Black be overturned, prejudice would accrue to appellant by virtue of an increased prison term of eight years. (U.S. Const., 6[th] & 14[th] Amends.)" To secure reversal of a criminal conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsels performance fell below an objective standard of reasonableness, i.e., that counsels performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsels shortcomings. (People v. Cunningham, supra, 25 Cal.4th 926, 1003.)
In the instant case, there was no reasonable probability that appellant would have obtained a more favorable result absent substitute counsels omission because the state Supreme Court upheld the imposition of an upper term based on criminal history in Black II. (Black II, supra, 41 Cal.4th at pp. 805-806.) The decisions of the California Supreme Court are binding upon and must be followed by all the state courts of California. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In view of the controlling authority of Black II, appellants claim of prejudice arising from ineffective assistance of counsel at sentencing must be rejected.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare and serve as appropriate an amended abstract of judgment making therein those additions and corrections as specified in footnotes 1 and 2, ante.
We Concur:
WISEMAN, J.
GOMES, J.