Opinion
B162457.
11-20-2003
THE PEOPLE, Plaintiff and Respondent, v. DAMEIN DION SPRUIELL, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, and Deborah J. Chuang and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
Damein Dion Spruiell appeals from the judgment entered following his conviction by jury of attempted willful, deliberate, and premeditated attempted murder (Pen. Code, §§ 187, 664) with personal use of a firearm (Pen. Code, §§ 12022.5, subd. (a)(1)), 12022.53, subd. (b)), personal and intentional discharge of a firearm (Pen. Code, § 12022.53, subd. (c)), personal and intentional discharge of a firearm causing great bodily injury (Pen. Code, § 12022.53, subd. (d )), and personal infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a)). He was sentenced to prison for life with the possibility of parole, plus 25 years to life.
In this case, we conclude there is no need to modify appellants sentence. We hold appellants motion for a new trial was properly denied.
FACTUAL SUMMARY
On June 25, 2001, Talvin Wells lived in an Inglewood apartment with his fiancée Elaine Lewis and her cousin Chris Richardson. That day, Richardson and Wellss son, Roylin Walker, were attending a church function in the neighborhood. Appellant was there and asked Richardson, "`Where you from?" Richardson replied, "`We dont bang from no where." Appellant later asked Richardson if the "big dude living with you [was] from the [fucking] crips, from the Rollin `60s or something like that." Richardson replied he did not know what appellant was talking about.
Between about 11:30 a.m. and 1:00 p.m. on June 30, 2001, Lewis saw appellant in a store. At about 7:15 p.m., Wells was in his driveway when he saw appellant standing across the street. Wells and appellant looked in each others direction, and appellant fled. At about 8:00 or 8:30 p.m., Lewis saw appellant looking through the apartment window from about 10 feet away for about 15 to 20 minutes. At some point that night, Walker saw appellant drive by the apartment in a car.
Wells testified that shortly after about 10:50 p.m., he was outside the apartment. Appellant emerged from bushes and repeatedly shot Wells with a rifle at close range. Appellant was shooting for "at least a good minute." Wells was hit four times. Police recovered nine .22-caliber casings from the shooting scene. Richardson testified he was at the location and saw appellant jump out of bushes, shooting a rifle.
On September 18, 2001, Wells identified appellant as the shooter at a corporeal lineup. On September 26, 2001, Lewis identified appellant from a photographic lineup. Lewis identified appellant at trial as the person whom she saw looking through the apartment window. Wells and Richardson identified appellant at trial as the shooter.
On August 6, 2001, Wells identified someone else as the shooter from a photographic lineup. Appellants appearance at the corporeal lineup did not resemble his appearance in the photographic lineup.
Appellant presented an alibi defense. His aunt, a felon, testified that on Friday, June 29, 2001, appellant came to her San Bernardino home and stayed the entire weekend. She admitted that nothing special occurred that weekend that made it any different, or more notable, than any other weekend.
CONTENTIONS
Appellant contends: (1) "[a]ppellants sentence should be modified to reduce his minimum parole eligibility date on count one from fifteen years in prison to seven years in prison" and (2) "[t]he judgment of guilt should be reversed because the trial court erroneously denied a defense motion for a new trial."
DISCUSSION
1. There Is No Need To Modify Appellants Sentence.
On October 3, 2002, the court initially sentenced appellant to prison for a total unstayed prison term of 15 years to life for attempted murder (count one), purportedly pursuant to Penal Code section 664, subdivision (f), plus 25 years to life for the Penal Code section 12022.53, subdivision (d) enhancement. However, Penal Code section 664, subdivision (f), was inapplicable since it applies only if the attempted murder victim, unlike Wells, was a peace officer or firefighter. After the People so advised the court, the court correctly resentenced appellant to prison for a total unstayed term of life with the possibility of parole for attempted murder pursuant to Penal Code section 664, subdivision (a), plus 25 years to life for the Penal Code section 12022.53, subdivision (d) enhancement.
In his opening brief, appellant treats the initial sentence as the final sentence, does not discuss the resentence, and claims sentencing error, urging, in effect, that the initial sentence should be modified to reflect that he is eligible for parole on count one after serving seven (not fifteen) years in prison. Respondent points out that the court corrected its error when it resentenced appellant. Appellants reply brief concedes "it appears from the comments of the trial court [during resentencing] and the abstract of judgment that the trial court did reduce the term on count one to a straight life term with a parole eligibility period of seven years." Accordingly, we deem appellants contention withdrawn.
2. Appellants Motion For A New Trial Was Properly Denied.
a. Pertinent Facts.
At appellants October 2001 preliminary hearing, appellant was represented by a public defender who remained appellants counsel at all times until July 2002. In April 2002, the jury convicted appellant. In July 2002, appellant filed, and the court granted, appellants motion to represent himself. In August 2002, appellant, in pro per, filed a handwritten 37-page motion for a new trial (motion), supported by various handwritten declarations. Appellant claimed, in pertinent part, that he was entitled to a new trial on grounds of newly discovered evidence and ineffective assistance of counsel.
We note the jury had been instructed with CALJIC No. 2.92, pertaining to eyewitness identification factors.
As to the ground of newly discovered evidence, the motion included August 2 and August 10, 2002 declarations from Shaun Jones and Darrell Johnson, respectively. They were similarly worded, and written in apparently the same handwriting except for each declarations signature. Each declarant stated, in essence, that he saw, but did not know, the shooter. Each declarant also stated that he knew appellant and that appellant was not the shooter.
The motion alleged the following. During the course of appellants former counsels representation of appellant from September 2001 through July 2002, his counsel never told him about Lamont Evans, Jr. who, according to appellant, witnessed the shooting and could exonerate appellant. Appellant first learned about Evans through discovery appellant had received from his former counsel when appellant began representing himself. An investigator for appellant then contacted Evans, who indicated that Jones and Johnson might have been able to provide information about the shooting. The investigator contacted Jones and Johnson, who exonerated appellant.
The motion does not contain a declaration from Evans.
Appellants motion urged that his former counsel constantly "told defendant that [a] new trial is not going to be granted. So hes not going to waste his time filing the motion. Trial counsel told defendant there was no reason to file a new trial [anyways] because from what he heard from the witnesses the defendant is guilty of the charges." Appellant also claimed he was denied effective assistance of counsel.
We will address ineffective assistance of counsel issues infra.
The trial court denied the motion, later observing that "the People have indicated and apparently you dont contest it, is that your attorney had this information." Appellant replied, "So [former counsel] was in cahoots, and he didnt tell me about it." The court later commented, "If the appellate court agrees with you, then they will overturn my ruling . . . I would indicate that the evidence that was presented during the trial was substantial. I dont think any reasonable jury would have reached a different result."
b. Analysis.
"`In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: "`1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; [and] 4. That the party could not with reasonable diligence have discovered and produced it at the trial; . . . ." (People v. Delgado (1993) 5 Cal.4th 312, 328 . . . .) `[U]nless a clear abuse of discretion is shown, a denial of the motion will not be interfered with on appeal. (People v. McDaniel (1976) 16 Cal.3d 156, 178-179 . . . .)" (People v. Beeler (1995) 9 Cal.4th 953, 1004.) Moreover, information which was known or could have been discovered by diligent investigation before trial does not qualify as newly discovered evidence. (In re Hall (1981) 30 Cal.3d 408, 420.)
Appellant claims his motion should have been granted based on the allegedly newly discovered evidence from Jones and Johnson. However, the motion failed to demonstrate that that alleged evidence was newly discovered, since it is undisputed that Evans was referred to in discovery possessed by appellants former counsel and the alleged evidence from Jones and Johnson could have been discovered by diligent investigation by appellants counsel. Accordingly, appellants motion failed to demonstrate that he could not with reasonable diligence have discovered and produced the alleged evidence at trial. Further, in light of the strength of the evidence of appellants guilt, the motion failed to demonstrate that the alleged evidence was such as to render a different result probable on a retrial. The trial court did not abuse its discretion by denying appellants motion. (Cf. People v. Beeler, supra, 9 Cal.4th at pp. 1004-1005.)
Appellant, in his reply brief, asserts, "it is perfectly acceptable for appellant to have drafted the declarations [of Jones and Johnson]. The signatures on the declarations appears [sic] to be in different handwriting."
Appellant also claims his motion should have been granted based on five instances of alleged ineffective assistance of counsel at trial, discussed infra.
"`"[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsels performance was `deficient because his `representation fell below an objective standard of reasonableness . . . under prevailing professional norms. [Citation.] Second, he must also show prejudice flowing from counsels performance or lack thereof. [Citation.] Prejudice is shown when there is a `reasonable probability that, but for counsels 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.]" [Citation.] [Citation.] [¶] `Reviewing courts defer to counsels reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsels conduct falls within the wide range of reasonable professional assistance." [Citations.] `[W]e accord great deference to counsels tactical decisions [citation], and we have explained that `courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight [Citation.]" (People v. Weaver (2001) 26 Cal.4th 876, 925-926, italics added.) If the record 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, an ineffective assistance contention must be rejected. (People v. Slaughter (2002) 27 Cal.4th 1187, 1219.)
Appellant cites, in conclusory fashion, five instances of alleged ineffective assistance of counsel, that is, his trial counsels failure to (1) have Jones and Johnson testify at trial; (2) produce eyewitness identification expert testimony at trial; (3) attend appellants corporeal lineup; (4) move for a mistrial after the jury was informed that appellant previously had been arrested for robbery; and (5) move for a mistrial after the prosecution introduced evidence that appellant was a gang member. However, appellant points to nothing in the record that sheds light on why counsel failed to act in the manner challenged, or that indicates that counsel was asked for an explanation and failed to provide one, and we cannot say there simply could have been no satisfactory explanation for counsels failures. We reject appellants ineffective assistance of counsel claim.
Moreover, as to all of the alleged instances of ineffective assistance of counsel, there was strong evidence of appellants guilt. As to the second alleged instance, the record reflects that the witnesses were thoroughly cross-examined concerning their identifications of appellant, including Wells and Richardson concerning their identification of appellant at trial. We note appellants motion contains no declaration from an eyewitness identification expert indicating how testimony from same probably would have been helpful. The jury was instructed pursuant to CALJIC No. 2.92 on eyewitness identification factors. No prejudice resulted based on the second alleged instance. (Cf. People v. Cunningham (2001) 25 Cal.4th 926, 1005.) As to the third alleged instance, appellant does not indicate how the attendance of his former counsel at appellants corporeal lineup probably would have been helpful.
As to the fourth alleged instance, the undisputed facts are that, during the direct examination testimony of an Inglewood detective who was assigned to the shooting in the present case, the prosecutor asked the detective if, at some point, the detective had come into contact with appellant. The detective replied in the affirmative. The prosecutor asked when and the detective replied, "He was under arrest for a robbery . . . ." Appellant interrupted with a relevance objection which the court sustained. The court then struck the answer, ordered the jury to disregard it, and told the jury that the answer was nonresponsive. The jury is presumed to have followed the courts instruction (People v. Sanchez (2001) 26 Cal.4th 834, 852) which cured any harm.
As to the fifth alleged instance, appellant cites in his brief no specific instance in which gang evidence was admitted. Appellant has failed to meet his burden of demonstrating error from the record. (In re Kathy P. (1979) 25 Cal.3d 91, 102; People v. Garcia ( 1987) 195 Cal.App.3d 191, 198.)
Respondent asserts, "Although appellant complained generally about the admission of gang evidence in his new trial motion . . . , appellant never identified any specific evidence, and it was impossible to determine from the motion what particular evidence he was complaining about. (Cf. People v. Beeler (1995) 9 Cal.4th 953, 1005 [trial court properly denied new trial motion where allegations in affidavit were vague and general].)" Appellant does not, in his reply brief, dispute respondents assertion.
Moreover, to the extent appellant complains that, during redirect examination of the above detective, the detective testified that appellants moniker was "`Baby Bandit," the detective did not then testify that the moniker was a gang moniker, and it was only after the detective testified as to appellants moniker that appellant posed a belated objection on the ground of no foundation. The court sustained the objection and ordered the jury to disregard the detectives testimony. The jury is presumed to have followed the courts instruction (People v. Sanchez , supra, 26 Cal.4th at p. 852) which cured any harm. In sum, appellant having failed to demonstrate prejudice from any of his trial counsels alleged failings, appellant has failed to demonstrate that he was denied effective assistance of counsel. (Cf. People v. Ledesma (1987) 43 Cal.3d 171, 215.)
In light of our conclusion on the merits, there is no need to decide whether, to the extent appellants motion was based on ineffective assistance of counsel predicated upon the above mentioned five instances of alleged ineffective assistance, appellant waived the issue of whether the motion was erroneously denied by failing below to raise those instances as grounds for such a motion.
DISPOSITION
The judgment is affirmed.
We concur: KITCHING, J., ALDRICH, J.