Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 02CF0607, Thomas James Borris, Judge.
Leonard Sikes for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Melissa Mandel and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
A jury convicted defendant Fermin Vargas of premeditated attempted murder (Pen. Code, §§ 664, 187, subd. (a)) and assault with a semi-automatic firearm (Pen. Code, § 245, subd. (b)), and found true great bodily injury and firearm enhancements. The court sentenced him to life imprisonment with the possibility of parole plus a consecutive 25-year term. A previous trial had resulted in a hung jury and a mistrial. On appeal defendant contends his counsel’s assistance at the second trial was ineffective. We disagree and affirm the judgment.
FACTS
In January 2002, the victim, Carlos Oliva, was introduced to defendant by a mutual friend, Rene Alfaro. Around that time, Rene “stopped hanging out with” Oliva. Rene’s sister, Rosa, was then pregnant with defendant’s baby.
To avoid confusion, we refer to Rene Alfaro, his sister, Rosa Alfaro, and their mother, Teresa Alfaro, by their first names. We mean no disrespect.
About two months later, on March 2, 2002, Oliva attended a birthday party at the home of the Contreras family. Oliva was then 17 years old; defendant was 22. Toward the end of the party, Rene arrived, talked to some people (but not to Oliva), and then departed. The party ended at about 11:00 p.m. Oliva and Victor Gonzalez (a friend of Oliva and Rene) went to the front of the house to tell a friend goodbye.
Parked across the street was Rosa’s silver Chevy Malibu, with the front of the car facing Gonzalez. Because the car’s window tinting was not dark and the windshield was not tinted, Gonzalez could see defendant sitting in the driver’s seat. From the Malibu’s passenger side, Rene got out, crossed the street, and told Oliva, “Cartoon wants to talk to you.” Cartoon was defendant’s nickname. Oliva and Rene walked across the street; Rene told Oliva to get into the car. Oliva got into the front passenger seat, while Rene sat in back behind defendant.
Defendant turned on the ignition and drove to an alleyway between deserted warehouses. There, defendant stopped the vehicle, asked Oliva what he was thinking, and accused Oliva of “going over to Rene’s house the night before and . . . talking shit.” Oliva replied, “I don’t know what you’re talking about.” Defendant said, “Don’t lie. You were there. It was you.”
Defendant ordered Oliva to get out of the car. Both defendant and Oliva got out and walked toward the back of the car. Rene stayed in the vehicle. Defendant asked Oliva “who the fuck [he] thought [he] was.” Defendant walked “to the end of the building” and “looked left and right.” He came back to Oliva and stood about four feet in front of him. Defendant “pulled both of his hands at the same time out of his” jacket pocket. Oliva “saw something black in [defendant’s] right hand.” Oliva ran and heard four to six gunshots. A gunshot to the back of his shoulder knocked him to the ground about 33 feet away from defendant. Another shot hit Oliva in the left buttock. Oliva played dead. He could see defendant standing to the rear of the Malibu, staring at him with an object in his hand that looked “consistent with a gun.” Rene never got out of the car. Oliva was “confident” Rene was not the person who shot him.
Defendant got back in the car. Oliva got up, started running, and “hid behind a trash can.” The car “took off.” After the car left, Oliva walked to a street and passed out.
At the Contreras house, Gonzalez and Jorge Contreras had heard four or five gunshots about 10 to 15 minutes after the Malibu had driven away from the party. Now, they saw the Malibu coming back “pretty quick,” its wheels “screeching,” driven by defendant. Contreras and Gonzalez got in Contreras’s truck and drove in the direction of the gunshots to look for Oliva.
About 10 seconds later, Contreras and Gonzalez heard Oliva yelling at them. Oliva was “full of blood” and “lying on some plants.”
A police officer in the vicinity, alerted to the situation by a passing motorist, drove to the scene and saw Contreras’s truck. Contreras, in the driver’s seat, waved his arms to flag the officer down. Gonzalez jumped out of the back of the truck and told the officer they were taking a friend to the hospital and needed help.
Oliva was “lying across the bench seat of the pickup truck,” “yelling out in pain.” The officer asked Oliva who had shot him. Oliva replied, “Cartoon.” Gonzalez asked who Cartoon was, and Oliva replied Cartoon was defendant.
Santa Ana police officers were dispatched to Rene’s house and found the Malibu parked in the driveway. The Alfaro house was a five to 10 minute drive from the Contreras house, which was close to the crime scene. At about 12:10 a.m., the car’s hood was still hot. Defendant, Rene, and some females came out of the house.
Defendant’s and Rene’s hands tested positive for gunshot residue. The presence of gunshot residue on a person’s hands indicates the “person has either fired a gun recently; has been in contact with a weapon that has gunshot residue on it; . . . has been in close proximity to somebody firing a weapon since . . . a plume of smoke and debris [comes] from a gun; or [has come] into contact with some surface that might have gunshot residue on it . . . .” The front doors of the Malibu tested positive and the rear doors negative. Oliva’s hands tested negative.
At the scene of the shooting, a crime scene investigator collected seven .40 caliber Smith & Wesson cartridge casings.
At an emergency room a surgeon removed part of Oliva’s small and large bowel and performed a temporary colostomy because the bullet that had entered Oliva’s buttock had gone into his abdomen. An officer took custody of the bullet removed from Oliva’s right flank. (Oliva stayed in the hospital for about two months and wore “a colostomy bag for about eight months.”)
On March 13, 2002, Tustin police investigated “a possible vandalism in progress” at a park bench. They found Richard Molina and Richard Cortez Valtierra at the bench. The police searched Valtierra’s vehicle and found a .40 caliber semiautomatic Smith and Wesson handgun in the glove compartment. The officers questioned Molina about the handgun and arrested him.
The gun’s recoil spring was missing. As a result, the gun could only be fired once. (To remove the recoil spring would not have been difficult.) According to Molina, “Rosie” had given him the gun three to four days earlier because she was afraid the gun would “be found in a search.” (Rosa was called “Rosie” by her family and friends.) A forensic firearm examiner test fired the handgun and determined it had fired the seven casings found at the crime scene, as well as the bullet removed from Oliva’s abdomen.
At trial, an officer testified to Molina’s statement, after Molina testified he could not recall talking with the police on March 13, 2002, because he was “all drugged up” on methamphetamine that day.
Oliva had seen defendant and Rene “on prior occasions . . . in possession of a Smith & Wesson .40 caliber semiautomatic handgun.”
While in jail, defendant phoned Rosa on March 4, 2002. That same day, he also phoned an unknown person called “Dad.” The phone calls were recorded and played for the jury. (Inmates “who wish to make outgoing telephone calls” are warned the calls will be recorded.)
Excerpts from the phone call between defendant and Rosa include:
“F.VARGAS: . . . Why didn’t I start running?
“RO.ALFARO: Oh, no
“F.VARGAS: . . . I know I could of gotten away but your brother had taken that shit off. Do you remember?
“RO.ALFARO: Which one?
“F.VARGAS: He took it apart.
“RO.ALFARO: Uh-huh.
“F.VARGAS: So with it I know I would have gotten away.
“RO.ALFARO: No
“F.VARGAS: Yes, I would.
“RO.ALFARO: The whole block was blocked.
“F.VARGAS: Even though *** above *** I still would have escaped. Trust me.
“RO.ALFARO: Oh. But how, how with the fucken chopper?
“F.VARGAS: Chopper is no problem. Choppers are not quick with the light.
“RO.ALFARO: Yes, they are.
“F.VARGAS: Not that quick.
“RO.ALFARO: Hmm.
“F.VARGAS: They . . . might take a lot of space but they’re not fast. I’m . . . invisible.
“RO.ALFARO: Calm down.
“F.VARGAS: I’m an invisible man . . . .”
“RO.ALFARO: Well, tell your dad to bail you out.
“F.VARGAS: Who?
“RO.ALFARO: Your dad.
“F.VARGAS: He already told me no.
“RO.ALFARO: Why?
“F.VARGAS: Why? Because I didn’t . . . work well.
“RO.ALFARO: Why?
“F.VARGAS: I did not perform the job well. It was dirty.
“RO.ALFARO: Oh.
“F.VARGAS: I was stupid or what. I wasn’t thinking. That day I was drunk. I was kind of buzzed. *** I bet you if I wasn’t . . . .”
“F.VARGAS: Just tell [your dad] that your brother had nothing to do with this.***
“RO.ALFARO: Yeah, but . . . .
“F.VARGAS: Tell him that it was me.”
“F.VARGAS: Fuck, hey. I regret it. I don’t regret it. How could I have done that stupidity knowing that and right now I don’t know for how long. . . .
“RO.ALFARO: I know babe.”
“F.VARGAS: . . . When I was going cause I was drinking . . . the other drinks I fuckin’ got . . . the urge to do bad stuff.”
“RO.ALFARO: And then we’re all like, well nah, we were home but [sic] 9:15.
“F.VARGAS: Remember we went to Money Mart.
“RO.ALFARO: I know, we were in the Money Mart. Cause . . . they had asked me, you know.”
In his phone call with “Dad,” defendant said, “But they . . . can’t find the gun. They haven’t found the gun. How . . . can they say it was me if I don’t have a gun.”
Janis DeLeon, defendant’s common law wife who had three children with him, testified on his behalf. She had never “known him to be aggressive or violent.” She had never heard him “talk about guns” nor had she ever seen him with a gun or with anyone who had a gun.
DISCUSSION
Defendant argues his trial counsel rendered ineffective assistance by failing to investigate and present an alibi defense (including alibi witnesses) and failing to impeach prosecution witnesses. Defendant emphasizes that his first trial resulted in a hung jury, seven to five, and criticizes his counsel in the second trial for presenting a different defense. He contends that “in the first trial counsel argued somewhat successfully that [defendant] was ‘not at the scene of the shooting’” In contrast, according to defendant, counsel in his second trial argued that although defendant “WAS present at the scene of the shooting he never pulled the trigger[,] it was [Rene] who did the shooting.” Defendant asserts this strategy was “wholly alarming” because his “presence and participation would have made him culpable via [an] ‘aiding and abetting’” theory.
Defendant asserts his counsel “never reviewed the transcripts of the first trial,” but fails to support this assertion with any record references. Moreover, his counsel’s impeachment of Gonzalez with Gonzalez’s testimony from the first trial reveals counsel had reviewed the transcript.
To prove an ineffective assistance claim, a defendant must show that (1) “counsel’s performance was deficient,” and (2) “the deficient performance prejudiced the defense.” (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) A court need not “address both components of the inquiry if the defendant makes an insufficient showing on one.” (Id. at p. 697.) Thus, “[w]hen there has been no showing of prejudice, we need not determine whether trial counsel’s performance was deficient.” (In re Marquez (1992) 1 Cal.4th 584, 602.)
To prove prejudice, a “defendant 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.” (Strickland, supra, 466 U.S. at p. 694.) “When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” (Id. at p. 695.) “[T]he petitioner must carry his burden of proving prejudice as a ‘demonstrable reality,’ not simply speculation as to the effect of the errors or omissions of counsel.” (People v. Williams (1988) 44 Cal.3d 883, 937.)
Defendant contends he was prejudiced because his second trial counsel failed “to secure the testimony of known key alibi witnesses who could corroborate [defendant’s] whereabouts during the time of the shooting,” and failed to impeach witnesses, particularly police officers, with their prior inconsistent statements.
Defendant also argues his trial counsel “failed to contact a percipient witness whose statements to police directly contradicted testimony identifying [defendant] as one of the car’s occupants.” Because defendant tells us nothing more about this witness — not even the witness’s name — we disregard this argument.
Three alibi witnesses testified for the defense at the first trial: Rosa; Teresa Alfaro (Rene and Rosa’s mother); and Joan Stussy (Rosa’s sister). Thus, all three witnesses were related to Rene, as well as to defendant’s baby with Rosa.
Rosa testified that, on the evening of the shooting, defendant and Rene were out in her car, came home about 9:15 p.m. with diapers and baby wipes, and did not leave again that night. Rosa was subsequently impeached when an officer testified he spoke with her outside her house at around 11:15 p.m. on the night of the shooting, and Rosa stated she and Rene picked up defendant about 4:00 p.m., came home, and “stayed there all night.” The officer confronted Rosa “with the fact that the hood of her car was still hot after 11:00 p.m.” Rosa then changed her story to say “they had left again to go visit some friends[,] returned back to the house at about” 7:00 p.m., and “stayed there the rest of the night.” When the officer told Rosa “it was impossible for the car to be that hot after even five hours,” Rosa recounted a third story: They went to the store to buy diapers and returned home around 10:00 p.m.
Teresa testified defendant and Rene left the house around “6:00 or 7:00” — “it was early” — to buy diapers and “came back soon.” Teresa went to her room to go to bed around 10:00 p.m.
Stussy testified that defendant, Rene, and Rosa came home around 8:00 p.m. that night. Stussy went to her room to watch a movie and fell asleep around 10:00 p.m.
Thus, Teresa and Stussy failed to vouch for defendant’s whereabouts after 10:00 p.m. Rosa testified that both defendant and Rene stayed home after 9:15 p.m., but her credibility was weakened by the three different stories she told police on the night of the shooting. Moreover, her testimony directly contradicted that of Oliva, Gonzalez, and Contreras. Gonzalez and Contreras saw Rene at the Contreras house toward the end of the party. Oliva, Gonzalez, and Contreras testified that at about 11:00 p.m. (when the party ended), Rene told Oliva that defendant wanted to talk to him. Gonzalez then saw defendant in the driver’s seat of the Malibu. (At the second trial, it was clarified that Gonzalez saw defendant through the Malibu’s untinted front windshield.) Oliva testified defendant drove the car to an abandoned area, accused Oliva of “talking shit,” ordered Oliva out of the car, displayed an object that looked consistent with a gun, at which point Oliva ran away and was shot in the back shoulder and buttock. Gonzalez and Contreras heard gunshots and then saw defendant driving the Malibu back from the direction of the shots. Soon after the shooting, Gonzalez, Contreras, and a police officer heard Oliva state that defendant had shot him.
In addition to the testimony of Oliva, Gonzalez, and Contreras, other evidence suggested defendant was present at the crime scene and shot Oliva. Defendant’s comments in his taped phone conversations suggested he was the shooter. Both defendant and Rene had gunshot residue on their hands, as did the front doors of the Malibu. The Malibu’s hood was hot at midnight. The gun that shot Oliva was given to Molina by Rosie because she was afraid the police would find the weapon. The police found .40 caliber cartridge casings at the crime scene.
In sum, the evidence that defendant was present at the crime scene was overwhelming. In contrast, the alibi testimony at the first trial was flimsy. As stated by the People, it is quite likely defense “counsel in the second trial made a reasonable tactical decision to forego an alibi defense in order to maintain [counsel’s] credibility to argue it was not a premeditated, calculated attempt to murder the victim, [but] only an attempted voluntary manslaughter,” and Rene “did the shooting.” Moreover, it is possible the alibi witnesses were unwilling to cooperate with defense counsel at the second trial. Those witnesses — Rene’s mother and sisters — undoubtedly knew that defense counsel in the first trial had argued Rene might be the shooter. Rene’s relatives may have been unwilling to testify at the second trial in a manner that could harm Rene. In fact, defendant’s second trial counsel did add Rosa, Teresa, and Rene to the list of defense witnesses. The record does not disclose why second trial counsel chose not to call them. But defendant was not prejudiced by counsel’s decision not to present an alibi defense.
Defendant contends he was prejudiced by his second trial counsel’s failure to question Oliva about Oliva’s impeachment at the first trial. (Oliva was impeached after he initially denied knowing much about guns, but admitted on cross-examination that defendant had asked to borrow Oliva’s .38 special revolver three or four times and that defendant appeared angry once or twice when Oliva refused to lend him the gun.) Defendant was not prejudiced by his counsel’s choice not to cross-examine Oliva about this subject matter. Counsel’s decision prevented the jury from learning that defendant had tried to borrow a gun from Oliva and seemed angry when Oliva refused to do so.
Finally, defendant argues his trial counsel failed to adequately cross-examine police officers to elicit testimony on relatively minor matters, such as the possibility that gunshot residue might result from officer contact or from handcuffs, or whether a fingerprint analysis on the gun was requested by the Tustin Police Department (as opposed to the Santa Ana Police Department in charge of the case). The jury did hear testimony at the second trial that gunshot residue on a person’s hands can result from touching a surface on which such residue is present. Moreover, the alleged failures all relate to an alibi defense that defendant was not at the crime scene, had merely picked up some leftover gunshot residue from contact with the police, and had not handled the Smith and Wesson gun. Given the overwhelming evidence against defendant, there is no reasonable probability that such cross-examination would have changed the outcome.
We conclude defendant was not prejudiced by any ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, ACTING P. J., ARONSON, J.