Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA072402, George Genesta, Judge.
David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Ellen Birnbaum Kehr, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Christopher Proffitt, appeals from the judgment entered following his conviction, by jury trial, for burglary and robbery, with prior prison term and prior serious felony conviction findings (Pen. Code, §§ 459, 211, 667.5, 667, subd. (a)-(i)). Sentenced to state prison for 35 years to life, Proffitt claims there was trial and sentencing error.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed as modified.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, we find the evidence established the following.
1. Prosecution evidence.
In July 2005, 15-year-old Travis C. was living in a mobile home along with his mother and a woman who was renting a room from his mother. On the night of July 29, between 10:00 and 11:00 p.m., Travis was asleep on the living room couch. The renter was sleeping in her bedroom and Travis’s mother was gone. Travis was awakened by a knocking sound. He got up and went to the front door where he found Raymond Sanchez, whom Travis had known for several years. Sanchez and Travis used to live in the same apartment complex and Travis sometimes played video games with Sanchez’s brother. Sanchez was also a friend of Travis’s sister.
All further calendar references are to the year 2005 unless otherwise specified.
Sanchez was with someone Travis did not know, but whom he subsequently identified as defendant Proffitt. Sanchez wanted a drink of water, so Travis took him into the kitchen. Once there, Sanchez put a knife to Travis’s neck. He said he needed money and that he was “going to have to take a few things.” Sanchez also said he didn’t want to hurt Travis, but he would if Travis caused trouble. He asked where Travis’s money was. Travis could hear Proffitt rummaging through things in another part of the mobile home.
Sanchez took Travis into his bedroom, where Proffitt was going through Travis’s things. Proffitt asked if Travis had any money or drugs. Travis said he had neither. Proffitt did not seem to believe him and he asked for money several more times before giving up. When Travis mentioned the renter who was sharing the mobile home, Proffitt “said that if she caused any problems . . . he would take care of her.” Sanchez and Proffitt took various items from Travis’s bedroom, including two DVD players, a stereo, an iPod and a paint-ball gun. Proffitt ordered Travis to carry some of these items to the front door. Proffitt took a plastic tub in which Travis’s mother kept clothing and jewelry. The stolen items were loaded into a Honda parked outside the mobile home.
Sanchez and Proffitt had been at the mobile home 15 or 30 minutes before they drove off. When the police arrived, Travis told them Proffitt was six feet tall, and weighed between 200 and 250 pounds. A few months later, police showed Travis a photo array from which he immediately identified Proffitt as the second robber.
Officer Garrett Kennedy of the Alhambra Police Department testified that, between midnight and 1:00 a.m. on September 6, he was on patrol when he saw a brown 1987 Honda Civic make a quick turn and then drive off. Kennedy caught up to the Honda at a stoplight and saw Proffitt in the driver’s seat.
2. Defense evidence.
Proffitt’s mother, Debra, testified he had been living with her in July 2005. She saw him every night. Debra stayed home at night because she would not drive after dark. She generally stayed up late and Proffitt would come in and out of her bedroom to use the bathroom. Debra testified that when Proffitt came home on July 29, at about 11:00 or 11:30 p.m., he was not carrying anything. Debra testified Proffitt and Sanchez were acquaintances; Sanchez had been over to the house a few times to visit Proffitt. Debra did not see Sanchez on the night of the robbery.
Debra owned a 1989 Honda Civic. Proffitt was not allowed to use it, except to drive Debra around. Proffitt did not otherwise have access to the Honda because Debra had the only keys. Proffitt did not have his own car.
Debra testified she sold the Honda in October 2005, which was after Officer Kennedy saw Proffitt driving it late at night.
CONTENTIONS
1. Proffitt was denied effective assistance of trial counsel.
2. The trial court erred by imposing two prior serious felony conviction enhancements under section 667, subdivision (a).
DISCUSSION
1. Proffitt was not denied effective assistance of counsel.
Proffitt contends he was denied effective assistance of counsel because his attorney failed to present an adequate defense at trial. This claim is meritless.
a. Legal principles.
A claim of ineffective assistance of counsel has two components: “ ‘First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’ [Citation.] To establish ineffectiveness, a ‘defendant must show that counsel’s representation fell below an objective standard of reasonableness. [Citation.] To establish prejudice he ‘must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation.]” (Williams v. Taylor (2000) 529 U.S. 362, 390-391.)
“[T]he burden of proof that the defendant must meet in order to establish his entitlement to relief on an ineffective-assistance claim is preponderance of the evidence.” (People v. Ledesma (1987) 43 Cal.3d 171, 218.) In general, we give deference to an attorney’s choice of trial strategy. (See People v. Bunyard (1988) 45 Cal.3d 1189, 1215 [deference is shown to counsel’s tactical choices].)
b. Defense counsel’s performance was not deficient.
Proffitt contends defense counsel’s performance was deficient because he failed to pursue the only viable defense, which was misidentification. We disagree. In light of the apparent weakness of a misidentification defense (as discussed, infra, in subsection c) defense counsel did not unreasonably choose to concede Proffitt’s presence at the mobile home in favor of arguing Proffitt did not have the state of mind required to prove burglary. The key to defense counsel’s strategy was that, although there may have been little dispute that Sanchez and Proffitt committed a robbery once they had gained entry to the mobile home, the evidence as to how they gained entry was fairly ambiguous.
Travis testified as follows:
“Q What did you do once you heard that knock [on your door]?
“A I went and opened the door.
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“Q And you heard a knock so you go to the door. [¶] Is there a porch light at this time?
“A Yeah, but it was off.
“Q It was off. [¶] When you hear the knock did you go to the door and turn on the porch light?
“A No.
“Q All right. [¶] You just opened the door?
“A Yes.
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“Q When you went and opened the door, what happened?
“A It was pulled open.
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“By [the prosecutor]: Was it pulled hard or soft?
“A Not too hard. Gently.
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“Q So it was like a tug at the door; is that correct?
“A Yes.
“Q Did you see who was on the other side of the door?
“A Yes.
“Q And who was it that was on the other side of the door?
“A Raymond Sanchez.
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“Q Okay. So you open the door; you see Mr. Sanchez. [¶] What did he do at that point?
“A. He walked in.”
The following colloquy is from Travis’s cross-examination:
“Q . . . Do you recall when you first opened the door?
“A Yes
“Q Who was up front, standing in front?
“A I believe it was Raymond.
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“Q – [A]s you opened up the door. Did you step aside or did [Sanchez] follow you?
“A I don’t recall.
“Q You testified that he walked relatively normal speed?
“A Yes.
Travis’s testimony was, at best, ambiguous on the question of how Sanchez gained entry to the mobile home. That is, did Sanchez open the front door and push his way in, or did Travis himself, as he seemed to testify, open the door and let Sanchez in as soon as he recognized him? Emphasizing the latter scenario, defense counsel told the jury: “There was no testimony that Mr. Sanchez forced his way inside of the trailer but rather that the door was open and they walked in.”
Defense counsel connected this evidence to his argument Proffitt could have been invited to come along and help Sanchez collect a legitimate debt from Travis. The evidence clearly showed Sanchez and Travis were well-acquainted. If the jury believed Proffitt saw Travis stand aside to let Sanchez in, they might have concluded Proffitt reasonably construed this as manifesting Travis’s consent for Sanchez and his unknown companion to enter. Proffitt’s entry into the mobile home in these circumstances could have persuaded the jury that, at least initially, he did not believe he would be taking part in a crime. Defense counsel used the fact Sanchez was the one with the weapon to bolster this argument. Had the jury agreed with this defense theory, they would have found Proffitt not guilty of burglary because he did not have an intent to steal before he entered the mobile home.
We conclude defense counsel’s performance was not deficient because he made a plausible tactical choice to argue there was insufficient evidence Proffitt was guilty of burglary.
Defense counsel’s references, whether implicit or explicit, to the claim-of-right defense and to the anachronistic “breaking” element of burglary appear to have been mere artifacts of this defense strategy.
c. In any event, Proffitt cannot show prejudice.
But even assuming, arguendo, that defense counsel’s performance was deficient, Proffitt has not demonstrated ineffective assistance of counsel because he cannot show he was prejudiced by counsel’s failure to contest the identification evidence. (See People v. McPeters (1992)2 Cal.4th 1148, 1187 [defendant failed to show “a reasonable probability that the result would have been different in the absence of any alleged ineffectiveness”].)
Proffitt asserts Travis’s purported identification was questionable because Travis had never seen him before, because the robbers woke Travis up, and because during the ensuing robbery Travis had only a brief opportunity to observe the second robber. Proffitt argues: “Given the relative weakness of the prosecution’s case, a jury may well have had a reasonable doubt concerning appellant’s guilt in the face of well-presented argument that they should not rely solely on the eyewitness identification of a sixteen-year-old boy in convicting appellant of such a serious charge. Under these circumstances, as in [People v. Diggs (1986) 177 Cal.App.3d 958], it is reasonably probable that, but for counsel’s completely incompetent argument, the result would have been different . . . .”
Proffitt’s reliance on Diggs is misplaced. In that case, defense counsel’s closing argument directly contradicted the defendant’s own trial testimony in which he denied committing kidnapping and sexual assault. Defense counsel told the jury defendant had committed these crimes, but asked for leniency on the ground the true underlying cause of defendant’s conduct was an overly permissive social system. Counsel’s closing argument “effectively withdrew a crucial defense and admitted his client’s guilt without his client’s consent.” (People v. Diggs, supra, 177 Cal.App.3d at p. 970.) Nothing like that happened in the case at bar.
Moreover, Proffitt’s argument seriously minimizes the strength of the identification evidence. Although Travis acknowledged he was a little groggy and confused when he first awoke; he testified he was “clear” when he opened the front door. He also testified the robbers were inside the mobile home for between 15 and 30 minutes. Although Travis did not initially get a good look at Proffitt, because the porch light was off and because Sanchez had Travis take him into the kitchen while Proffitt went to a different room, Travis testified he got a very good look at Proffitt when the three of them were in Travis’s bedroom. There was even a conversation during which Travis explained to Proffitt and Sanchez how he had recently lost all his belongings in a fire. The evidence shows Travis had a good opportunity to scrutinize Proffitt. After the robbers left, Travis gave police an apparently accurate physical description of Proffitt. When Travis was shown a photo array a few months after the robbery, he immediately picked out Proffitt. It turned out Proffitt was a friend of Sanchez’s. Travis testified he was clear about his identification of Proffitt in the photo array and at the preliminary hearing. Regarding his identification of Proffitt at trial, Travis testified: “Yes, I’m positive.”
The prosecutor mentioned this description during closing argument, while urging the jury to compare the description to the man seated at the defense table.
On the other hand, the alibi defense presented by Proffitt’s mother, Debra, was weak. Although she claimed she could recall having seen Proffitt on the night of the robbery, a reasonable jury could have easily concluded she was relying on the general pattern of their domestic habits rather than a specific memory of that night. Debra’s testimony that Proffitt did not have access to her car late at night was contradicted by Officer Kennedy’s testimony.
When asked if she remembered seeing Proffitt come home that night, Debra testified, “Yes, I stay up late,” and “Yes, I see him every night.” The following colloquy occurred: “Q. You said you didn’t see him with any items in his hands? [¶] A. No, about the only thing he carries is a jacket or asks for a jacket.”
Proffitt has not demonstrated a reasonable probability that, had defense counsel chosen to argue the identity issue, the outcome would have been different.
c. Conclusion.
Defense counsel was faced with overwhelming evidence of Proffitt’s guilt. In these circumstances, the record demonstrates counsel made a plausible tactical choice to concede identification in order to save his credibility for arguing Proffitt did not have the required state of mind for burglary.
2. Consecutive prior felony enhancements were improper.
Proffitt contends the trial court erred by imposing consecutive five-year enhancements for prior serious felony convictions under section 667, subdivision (a), because the “brought and tried separately” rule was violated. This claim has merit, as the People concede.
“[T]he requirement in section 667 that the predicate charges must have been ‘brought and tried separately’ demands that the underlying proceedings must have been formally distinct, from filing to adjudication of guilt. Here, as the record plainly reveals, the charges in question were not ‘brought . . . separately,’ but were made in a single complaint.” (In re Harris (1989) 49 Cal.3d 131, 136; People v. Deay (1987) 194 Cal.App.3d 280, 286 [“Charges brought and tried ‘separately’ for purposes of section 667 means simply that prior formal proceedings leading to multiple adjudications of guilt must have been totally separate.”].) Here, too, the consecutive enhancements were based on two robbery convictions that had been brought and tried in a single proceeding.
Proffitt’s sentence must be modified to provide for only one section 667 enhancement.
DISPOSITION
The judgment is modified by vacating one of the section 667, subdivision (a), enhancements. The clerk of the superior court shall prepare an amended abstract of judgment to reflect these modifications, and forward the amended abstract of judgment to the Department of Corrections. As modified, the judgment is affirmed.
We concur: CROSKEY, J., ALDRICH, J.
That this strategy was not unreasonable is reflected by the prosecutor’s weak intent argument. The prosecutor told the jury: “Proffitt has never met Travis before. . . . [I]f he didn’t know Travis from before, why did he go to that location? Okay. He went to that location for one reason alone, that is to take property from Travis. Why else is he there? He’s not a friend. Why else is he there? He’s there to steal.” But Proffitt was in the company of Sanchez, who was well-acquainted with Travis. Hence, it was the Sanchez-Travis connection that suggested Proffitt’s innocent intent.