Opinion
F073471
07-18-2017
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW JAMES SMITH, Defendant and Appellant.
James Bisnow, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF160108A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Brian M. McNamara, Judge. James Bisnow, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Franson, J. and Peña, J. --------
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INTRODUCTION
Appellant Matthew James Smith contends he received ineffective assistance of counsel when counsel failed to object to admission of evidence. We disagree and affirm.
FACTUAL AND PROCEDURAL SUMMARY
On May 3, 2015, Mario Olague and his friend Kathy Lee had been moving items out of her apartment. While Olague and Lee were standing outside near Lee's apartment, Olague saw Smith arguing with Rebecca Cortez at a nearby apartment. Cortez was holding a baby; Smith grabbed Cortez by the hair and tried to pull her inside an apartment. Cortez pulled away, ran to Lee, and handed Lee the baby.
Smith began yelling at Lee while Lee was holding the baby. Olague stated, "You guys better stop[,] somebody is going to call the cops." Olague turned so his back was to Smith and began walking away, holding onto his bike. Smith yelled out, "Y'all are going to see what happened [sic] to this mother fucker," and stabbed Olague in the back.
Smith fled the scene. Olague pulled an 11-inch knife from his back and dropped it on the ground. Lee used Olague's cell phone to call 911. Olague was lying in a puddle of blood when sheriff's deputy Paul Feely arrived.
Feely determined Olague was in shock or going into shock. Olague was transported via ambulance to a hospital for surgery. Olague had lacerations to his right kidney and liver; the kidney had to be removed. Without prompt medical treatment, Olague would have died.
After Olague was transported to the hospital, Feely continued his investigation. Lee gave Feely a description of Smith; Cortez provided Feely with Smith's name and date of birth. Some neighborhood children pointed Feely in the direction of a person fitting Smith's description. Feely found Smith walking with another person. Feely handcuffed Smith and placed him in the back of the patrol car.
Feely questioned Smith about the attack on Olague; Smith claimed he knew nothing about it. Smith then related his story multiple times, changing some of the facts each time. While Smith was being transported to jail, he told Feely he had taken 32 clonidine pills an hour before in an attempt to kill himself. Feely stopped the patrol car and requested an ambulance for Smith. Smith was transported to the hospital for treatment and Feely followed in the patrol car. At the hospital, Smith told Feely he prefers to go to the hospital instead of the jail when he is arrested. Further, Smith said he knew 32 clonidine pills would not kill him as he had taken 60 such pills at one time in the past.
Cortez had given a statement to Feely at the time of the attack on Olague. After Smith was released from the hospital and in jail, Feely was notified Cortez wanted to change her statement. Feely found this suspicious, so he reviewed the record of calls made by Smith from jail. Feely found Smith had called Cortez's phone number several times. In one of these calls, Smith told Cortez she needed to change her story and state Smith was not there when Olague was attacked.
Feely interviewed Cortez again. He told her he had access to recordings of all jail calls made by Smith and that intentionally lying to him about a criminal investigation was itself a crime. He then asked Cortez if she wanted to change her statement. Cortez appeared uncomfortable and nervous and would not make eye contact. In other calls, Smith told Cortez: he wanted to get out on bail so he could flee the state; Cortez would not be arrested if she lied to law enforcement because the jails were too full; and Cortez's statement was the only evidence against him and she was "fucking" him.
Smith was charged in count 1 with attempted murder, and it was alleged (1) the attempt was willful, deliberate, and premeditated; (2) Smith used a deadly weapon; and (3) Smith personally inflicted serious bodily injury. Count 2 charged assault with a deadly weapon and alleged Smith personally inflicted great bodily injury on the victim. Count 3 charged battery resulting in infliction of serious bodily injury and that Smith used a deadly weapon. Count 4 charged Smith with attempting to dissuade a witness by means of force or threat, and alleged he committed an attempted murder that was willful, deliberate, and premeditated; he used a deadly weapon; and he personally inflicted serious bodily injury. It also was alleged Smith had suffered a prior strike conviction and served a prior prison term.
Charles Reese witnessed the stabbing and testified at trial. On direct examination, the People asked Reese if he remembered telling Feely that Smith had said, "Y'all are going to see what happened [sic] to this mother fucker." Reese responded, "I don't remember too much, no." Later, Feely testified Reese told him Smith had made that statement before stabbing Olague. There was no objection by the defense to Feely so testifying.
Smith testified in his own behalf. On the day Olague was assaulted, he and Cortez had been in her apartment drinking; they argued. Smith claimed he told Cortez he would call the police if she tried to leave the baby with Lee. According to Smith, Olague said, "Why would you do that?" and approached him with a black folding knife. Smith was scared, stabbed Olague, and ran away. He claimed he discarded the knife after he left the scene.
Smith admitted calling Cortez from the jail. He claimed he was trying to get Cortez to "help [him] deny everything."
On February 10, 2016, the jury returned verdicts finding Smith guilty of all four counts. The jury found not true the allegation the attempted murder was willful, deliberate, and premeditated. The People dismissed the enhancement appended to count 4 pertaining to a deliberate, willful and premeditated attempted murder. The jury found true all other enhancements alleged on all four counts.
Smith was sentenced to an aggregate term of 23 years in prison and awarded 376 days of custody credits.
DISCUSSION
Smith's sole contention on appeal is that he received ineffective assistance of counsel because his counsel failed to object to Feely testifying that Reese told him Smith stated, "Y'all are going to see what happened [sic] to this mother fucker" before he stabbed Olague. Without this statement, Smith contends the evidence could not have supported an attempted murder conviction. We disagree.
Standard of Review
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To establish ineffective assistance of counsel, "'a defendant must show both that his counsel's performance was deficient when measured against the standard of a reasonably competent attorney and that counsel's deficient performance resulted in prejudice to defendant ....'" (People v. Lewis (2001) 25 Cal.4th 610, 674.) Defense counsel's failure to object rarely establishes ineffective assistance. (People v. Avena (1996) 13 Cal.4th 394, 444-445.)
"[W]hen the reasons for counsel's actions are not readily apparent in the record, we will not assume constitutionally inadequate representation and reverse a conviction unless the appellate record discloses '"no conceivable tactical purpose"' for counsel's act or omission." (People v. Lewis, supra, 25 Cal.4th at pp. 674-675; accord, People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 ["'"[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] ... unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," the claim on appeal must be rejected.' [Citations.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding"]; People v. Ray (1996) 13 Cal.4th 313, 349 ["In order to prevail on [an ineffective assistance of counsel] claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission"].)
Where counsel wrongly fails to object, a claim of ineffective assistance of counsel may arise. However, such a claim requires the court to consider "whether counsel's assistance was reasonable considering all the circumstances." (Strickland v. Washington (1984) 466 U.S. 668, 688.) This analysis requires demonstrating both that counsel's conduct was deficient and that the deficient performance prejudiced the defense. (Id. at p. 687.) "'Tactical errors are generally not deemed reversible; and counsel's decisionmaking must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation...."'" (People v. Hart (1999) 20 Cal.4th 546, 623-624.) "In making the determination whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law." (Strickland v. Washington, supra, at p. 694.)
Analysis
Initially, we note counsel was not asked to explain her tactical decision. Claims of ineffective assistance should not be raised in a direct appeal but in a petition for writ of habeas corpus, where counsel can respond to any claims of ineffective assistance. (People v. Ray, supra, 13 Cal.4th at p. 349.) Furthermore, when the "'"record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,]... unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," the claim on appeal must be rejected.' [Citations.]" (People v. Mendoza Tello, supra, 15 Cal.4th at p. 266.)
Regardless, we cannot say counsel's failure to object constituted ineffective assistance. As Smith concedes, the People could have introduced the challenged statement by another means, such as refreshing Reese's past recollection. Counsel may well have made a conscious tactical decision not to object to Feely's testimony, knowing the statement could be admitted into evidence by another means. We accord great deference to counsel's tactical decisions; "'courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight.'" (People v. Weaver (2001) 26 Cal.4th 876, 926.)
Moreover, Smith has not demonstrated he suffered any prejudice as a result of the admission of the challenged statement. There is overwhelming evidence of Smith's guilt on the attempted murder count apart from the challenged statement.
Smith claims that without the challenged statement, the evidence would have shown a sudden quarrel, which would have been consistent with the defense theory of unreasonable self-defense or heat of passion on adequate provocation. Thus, he contends no attempted murder verdict would have been returned. This argument ignores the evidence.
Smith is the only witness who claimed he quarreled with Olague right before the stabbing. No other witness so testified, and in fact, a witness to the stabbing with no apparent motive to be untruthful contradicted Smith's testimony.
Olague testified he did nothing to provoke Smith before Smith attacked him. Reese corroborated this testimony when he testified that Olague was "just being calm and cool, wasn't doing nothing" right before Smith stabbed Olague. Testimony also established that Smith stabbed Olague in the back as Olague was walking away. The testimony of a single witness, and here there were at least two, is sufficient to support the People's theory of the case that Smith's attack on Olague was unprovoked and, thus, attempted murder. (People v. Young (2005) 34 Cal.4th 1149, 1181.)
The jury reasonably could reject Smith's version of the events, as two other witnesses portrayed the events differently than Smith. In addition, Smith's credibility was an issue because he lied to Feely when first questioned about the incident, he admitted he tried to get Cortez to lie and claim he was not involved in the stabbing, and he fled the scene after the stabbing. (People v. Wong (1973) 35 Cal.App.3d 812, 831 [any act tending to prove an effort on the part of the defendant to remove or obliterate evidence of a crime warrants an inference of consciousness of guilt]; People v. Williams (2000) 79 Cal.App.4th 1157, 1167-1168 [deliberate false statements to police are cogent evidence of a consciousness of guilt]; People v. Price (2017) 8 Cal.App.5th 409, 458 [evidence of flight is relevant because it may tend to establish consciousness of guilt].)
From a review of the record before us, we cannot say counsel's failure to object constituted either deficient performance or was not the result of a reasoned tactical decision.
DISPOSITION
The judgment is affirmed.