Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of habeas corpus, after judgment of the Superior Court of Orange County No. 03WF0057, James A. Stotler, Judge.
Gregory L. Rickard, under appointment by the Court of Appeal, for Petitioner Patrick Anthony Craft.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette and Robert R. Anderson, Chief Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Arlene Aquintey Sevidal and Janelle Boustany, Deputy Attorneys General, for Respondent.
OPINION
SILLS, P. J.
Patrick Anthony Craft brought a petition for writ of habeas corpus to us in August 2005, attacking the judgment sending him to prison for eight years following a jury’s verdict of guilt for assault with force likely to produce great bodily injury and battery with serious bodily injury on Loc Dao. In his original petition, Craft contended he was denied due process by the admission of certain statements he allegedly made to a witness, Terri Davis, concerning the race of the victim and the reason for the attack.
The jury rejected a lesser charge of assault on Son Nguyen, Loc Dao’s companion.
Oral argument was heard on the petition after it was consolidated with the related direct appeal. Subsequent to oral argument, this Court on its own motion severed the petition from the direct appeal, filed its unpublished opinion affirming the judgment in that appeal (see People v. Craft (June 29, 2006) G033647 [nonpub. opn.] mod., no change in judgment, July 26, 2006) and transferred the petition to the trial court for an evidentiary hearing. We specifically requested the lower court to hear and resolve whether he “was denied a fair trial due to the prosecutor’s error in eliciting court-excluded evidence and his attorney’s failure to object to the inquiry and answer. . . . Specifically, the hearing should determine what, if anything, the prosecutor said to the witness, Terri Davis, immediately before her testimony before the jury. Also, inquiry should be made as to what Davis said to the prosecutor, if anything, immediately before Davis’s jury testimony.”
On March 19, 2007 and again on December 14, 2007, hearings were held before the Honorable Craig E. Robison. After the petition was amended twice, expanding the grounds on which the petition was brought, the lower court denied the original petition, making a few factual findings and credibility assessments. The court then entertained the matters raised in the amended petitions but found the defense failed to establish a prima facie case essential to justify an evidentiary hearing on the matters. The court subsequently issued its written ruling and findings on January 11, 2008, denying the petitions on the expanded grounds. We now formally deny the original petition filed with us.
FACTS
The facts as recorded during the trial are taken from our unpublished opinion in the direct appeal.
Fifty-five-year-old Loc Dao, an amputee, was a resident of Orange County as was his friend, Son Nguyen (Son). The two men arrived at a motel to pick up a friend of theirs, Lamson Nguyen (Lamson), who was visiting from New York and was a patron of that motel during his stay. The three men proceeded to their car to go to dinner, but as they passed a fellow motel guest, they accidentally jostled him. The man cursed them, telling them to watch where they were going. Son replied that the man should watch his language. The man turned on them, and Dao cursed at him in response. Fisticuffs ensued between the man and Dao, even though Dao was appreciably older than the man and had a quite noticeable limp due to his prosthetic leg. Craft admitted that he was the man who cursed at them.
The fighting broke off only after Dao’s artificial leg became detached, forcing him to hop on one leg until the prosthesis could be reattached. Craft withdrew from the scene, finding his way to the motel office, his original destination in response to the motel manager’s call for him to pay additional funds for another night’s stay.
The three friends decided not to let the incident ruin their evening and headed for their car. Suddenly, Craft emerged from near the office and head-butted Dao, sending him “flying” backwards. Dao’s head hit the ground with such force that he lost consciousness. Son jumped up to defend Dao, pushing Craft in the chest and ordering him to back off. Craft’s response was to sock him in the face with his fist and pummel him with blows, while Lamson jumped on Craft’s back in an effort to pull him off Son.
Craft backed off, disappearing momentarily but returning with a pillow which he placed under Dao’s head. The motel manager called 9-1-1. While waiting for emergency assistance, the manager received a call from Craft’s room. Craft requested the manager call an ambulance for his wife who, he reported, was having medical problems.
The paramedics found Dao, lying on the ground but awake. He told the paramedics that he was drunk, a fact which surprised Son as he knew none of them had been drinking before they left to go to dinner. The paramedics treated Dao for the bloody wound on the back of his head, but he refused to be taken to a hospital for further treatment or observation.
Meanwhile, Garden Grove Police Officer Joseph Koenig arrived and questioned Craft. Craft admitted that he head-butted the man, causing him to fall backwards and hit his head. He explained he was in a bad mood over the manager’s demand for more money and his wife’s medical problems, circumstances which resulted in losing his temper when the man accidentally bumped into him. He also admitted socking Son in the face when he attempted to assist Dao. Finally, he told the officer that he had already apologized to the man.
Koenig also spoke with Dao, whose story coincided with that just given by Craft. While speaking to him, Koenig could smell a strong, fruity odor coming from Dao’s breath, but as all the men refused further medical treatment and failed to press charges, Koenig left them.
This trait was consistent with Dao’s diabetic condition which can result in such a fruity odor if the subject is suffering under extreme stress or trauma.
Soon thereafter, Dao began to complain of an extreme headache and that he wanted to go to sleep. They took him home, only to have him commence vomiting and be unable to walk or respond to them. At an emergency room, the doctors found that Dao had a large blood clot in his brain. Although he was rushed into surgery, he never regained consciousness and his family eventually had him removed from a life support system.
Unlike his statement to Koenig at the scene, Craft testified at trial that the incident with Dao was a mutual brawl after the three Asian men jumped him in response to the accidental jostle. He head-butted Dao only after Dao advanced on him in a martial arts’ stance as he re-emerged from his room to go to the motel office. The other two Asians attacked him after this move. He obtained the pillow for Dao, nonetheless, because he was concerned for the man’s well-being.
In rebuttal, the prosecution called Terri Davis, a friend of Craft and his wife for many years. She said Craft and his family lived with her and her boyfriend a few months after the incident with Dao. During this stay, Craft confided in her about his fears of facing attempted murder charges from the fight. She testified that he told her that he had gotten into a fight with three oriental men after he went looking for a fight following an argument with his wife. Craft told Davis he head-butted one of them who collapsed like a “limp noodle.” Craft said he then got a pillow for the guy so it “would look good.” The prosecutor specifically asked Davis if Craft had used the term, “oriental.” Davis replied, “no.” The prosecutor then pressed the point by asking what term Craft had used. Davis replied, “gooks.”
In our unpublished opinion for the direct appeal, we held this inquiry was prosecutorial error in that it was in violation of part of the trial court’s in limine ruling. However, we also held it was not prejudicial: A single pejorative term in a trial in which the evidence of guilt is quite overwhelming is clearly harmless.
Davis was impeached on cross-examination with her drug abuse, although she denied using drugs on the day Craft spoke to her. She was also questioned about a letter allegedly written by her boyfriend to Craft in which he attempted to get money from him by threatening to turn over Craft’s statements about the incident to the police. She denied any knowledge of such a letter, although she said Craft and his wife had left Davis’s home without paying the rent money owed her and her boyfriend.
However, she was not cross-examined on the inconsistencies between these trial statements and certain answers she gave in a hearing on the motion to exclude these matters outside the presence of the jury. In the earlier hearing, she said that Craft was a racist but that she knew that from his many statements through the years and not from anything he said in the conversation about this incident. She also said Craft admitted to her that he fabricated the whole scenario of self-defense after having started the fight.
Davis stated that Craft said he was angry from the fight with his wife and went outside to “let out some steam.” Infuriated, he wanted to “go out and kick someone’s ass.” However, she said that she had talked to the prosecutor just before testifying before the jury but that nothing was said to her concerning any ruling by the court.
Craft denied telling Davis he had been looking for a fight. He actually could not recall ever talking to her about the incident, but adamantly denied using the racial epithet or telling her he went looking for a fight. He also questioned Koenig’s testimony as to his own statements at the scene: He maintained his trial testimony was identical to the explanation he provided the night of the incident.
Hearing on the Petition
An evidentiary hearing was held below at which evidence was received on the circumstances surrounding Davis’s testimony and trial counsel’s failure to object to it. The lower court judge found that Davis was not credible when she insisted that no discussion about the trial or evidentiary rulings occurred between herself and the prosecutor, Eya Garcia, prior to Davis’s testimony before the jury. In contrast to Davis, Garcia was deemed highly credible by the judge when she testified that she told Davis to tell the truth and limit her testimony to Craft’s exact words—which was Garcia’s understanding, albeit incomplete, of the in limine ruling—and that Davis was to refrain from injecting any of Davis’s own opinions of Craft’s thoughts or motivations into her testimony. Garcia also testified that she did not confidently know what Davis would say because Davis had given statements to the investigator different from those she had made to Garcia and inconsistent with her testimony in the hearing.
Davis took the stand at the hearing on the petition but was represented by counsel who informed the court she would invoke her right to remain silent about all matters relating to the incident described as an extortion letter between her boyfriend and Craft. As noted by the prosecutor and the court, that issue was irrelevant to the matters in the petition. Petitioner’s counsel responded that he would just have to file a new petition on grounds of newly discovered evidence if he were barred from inquiring of the witness in this proceeding. Davis was then questioned solely on the matters in the original petition.
The judge also received testimony from Lawrence Young, the retained attorney for Craft at trial. He testified to all the circumstances surrounding his decisions regarding Davis and her testimony. He verified that, although Davis was not listed as a witness until just before trial, he was informed of her name and phone number early in the proceedings because she had contacted the prosecutor’s office to give information in the case. The prosecutor immediately informed Young of the contact, but there was no report regarding her information as she had never given her statement to anyone: She was directed to go to the local police and report it to them. She failed to do that.
While waiting for the trial to begin, Young received a report from an investigator which included Davis’s newly received statement: Craft had told her, while living at her home, that he had been looking for a fight on the day in question and that the fight was not a case of self-defense. In Garcia’s offer of proof to the court, she also included in Davis’s anticipated testimony that Craft was a racist or skinhead. Based on those sources, Young raised a motion to exclude Davis’s testimony and requested an opportunity to investigate the allegations, at the least. In the hearing on the motion, Davis testified, but did so in a fashion somewhat inconsistent with her statements to the investigator and quite inconsistent with her subsequent trial testimony, according to Young. However, the trial court ruled—according to Young—that Davis’s opinions or interpretations of Craft’s statements were inadmissible; nonetheless, Craft’s statements to Davis concerning the incident were admissible, including any pejorative terms he used or any explanation for his motive for the incident, according to Young. When Davis stated, later in the same hearing, that no such epithets were used by Craft in this conversation, the court ruled that the jury was not to hear any references to Craft’s racism. At this point, the prosecutor asked for a moment to speak with Davis before the jury was called back into the courtroom and the trial resumed. According to Garcia, she had but a moment to tell the witness not to mention any of her own understandings of Craft’s words or motivations, but to testify truthfully using only Craft’s own words. This was Garcia’s understanding of the trial court’s ruling, although in hindsight and with review, Garcia admitted her understanding of that ruling was incomplete. Therefore, as soon as the trial resumed, Garcia asked Davis to tell what statements Craft had made about the victim and his companions, to which Davis responded that he referred to them as “gooks” and that he had gone looking for a fight.
The trial court granted three days to the defense to investigate the matter.
Young testified he did not object to that answer, partly because he was just shocked at the blatant inconsistency with her testimony of a few minutes earlier. Moreover, he decided not to object once he allowed himself to consider the ramifications of an objection because it would merely highlight the whole subject. Young was particularly fearful that if he questioned Davis about such racial slurs, it would “open the door” for her to testify to specific statements and incidents revealing Craft’s racism and skinhead activities, even though Davis had stated in the earlier hearing that such things were scattered over the 26 years that she had known Craft. He concluded by saying, “I feared another hearing with Terri Davis. And we might get back into the whole racial thing and really open this up.” Young refrained from any inquiry as to the inconsistency between the trial testimony and the hearing testimony because he “had this fear [he] was going to open up the whole door about her alleged knowledge about Pat Craft being a racist in the past.”
Young was quite specific that the trial court’s ruling would have permitted Davis’s actual testimony, even though it was inconsistent with the testimony she gave at the hearing moments before. He also stated that he did not object to the question and Davis’s answer, either during the trial or outside the presence of the jury. Nor did he request a mistrial or curative admonition because he felt any admonition would have only brought more attention to it, and a trial court would not have granted a mistrial over this single word. Moreover, his 30 years of experience as a criminal defense attorney had led him to believe that once “an answer has been given, the cats out of the bag, so to speak. And a lot of times I think the objection just amplifies whatever damage was done by that answer.” Young noted that Garcia never mentioned the racism issue again, either in her witness examinations or in argument.
Judge Robison, in his denial of the original petition, found that Young’s failure to object to Davis’s two statements was a reasonable tactical decision. Moreover, even if this decision was made in error, Robison found that it was not prejudicial: The original trial judge, in his ruling regarding Davis’s testimony, had ruled that any statement made by Craft would be admissible, notwithstanding Davis’s initial denial during the hearing outside the jury’s presence that Craft uttered those words.
In our opinion in the direct appeal, we also concluded this was the initial ruling by the original trial court but we also noted that ruling was narrowed at the end of the hearing, following Davis’s testimony that no epithets were uttered by Craft in the conversation with Davis describing the incident. Thus, the prosecutor’s ultimate question before the jury—what was the term Craft actually used, rather than “oriental”—was in violation of the narrow ruling although not in violation of the initial ruling.
DISCUSSION
Due Process Violation
As stated in our opinion in the direct appeal, the prosecutor’s decision to further inquire if Davis violated the trial court’s narrow, later ruling, even if it did not violate the court’s initial ruling. Thus, we required in our order for the evidentiary hearing on the petition to determine what discussion occurred between the witness and the prosecutor: Had the prosecutor promoted or encouraged the change in Davis’s testimony? And, what prompted trial counsel to fail to object to it?
Prosecutorial Error
Craft now turns to us, contending that we cannot accept Judge Robison’s findings as to Garcia’s credibility, Davis’s lack of credibility, or Young’s tactical reasons because they are “ambiguous, unclear, incomplete, and not supported by substantial evidence.” He provides us with the legal authority that a referee’s findings of a purely factual nature in habeas proceedings must be “evaluated” by the referring court and may be given “great weight” if supported by substantial evidence. However, on mixed questions of fact and law, the referee’s findings are subject to a completely independent review by the referring court (see In re Cox (2003) 30 Cal.4th 974, 998), which he contends is how we must treat all the issues from the hearing below as the record fails to support the lower court’s factual findings.
Craft characterizes both Davis and Garcia as agreeing with each other that Garcia never conveyed to Davis the trial court’s exclusionary ruling, thus—he argues—supporting his argument that prosecutorial misconduct occurred and Garcia’s credibility cannot be found to be good. As such, Craft argues, the referee’s factual findings were not supported by substantial evidence.
We disagree. We have independently reviewed the entire hearing as well as the record from the actual trial. Accepting the credibility assessments voiced by the lower court in the hearing on the petition, and independently resolving de novo all mixed questions of fact and law, we agree with the conclusion that Craft was not denied due process by the two statements made by Davis in the trial and trial counsel’s failure to object to them. For instance, Garcia testified that it was her understanding of the court’s ruling that only Craft’s actual words could be admitted via Davis’s testimony; she instructed her witness to that effect as well as emphasizing to her to tell the truth. Craft argues that she informed the trial court that she would instruct the witness on his ruling; by failing to do so, her credibility is shown to be impeached. But Garcia actually stated to the trial court that she “would like to inform [Davis] of the court’s 402 motions and what she’s limited to say.” (Italics added.) She never averred to the court that she was going to tell Davis of the court’s rulings, only the limitations placed on her testimony. Based on Garcia’s understanding of the court’s ruling, albeit half wrong, she did that. Thus, Garcia’s testimony at the hearing on the petition was quite consistent with what occurred at the trial. Robison’s credibility assessment of her, therefore, is fully supported by the record, and we must accept it.
This was also trial counsel’s understanding of the trial court’s ruling.
Craft’s attack on Robison’s credibility assessments of Garcia and Davis is pivotally important because he characterizes Davis’s testimony as the sole source to explain why this incident occurred: his alleged racism. Had Garcia never erroneously asked Davis what racist epithet he used, his assertion of self defense at trial would have prevailed, he contends.
But Davis’s testimony of Craft’s confessional statements was not the sole source refuting that Craft was attacked by Dao and his two companions. Craft’s own statements to Koenig at the scene, which were corroborated by Dao and partially corroborated by the motel manager, stood in stark contrast to his trial testimony of self defense.
Counsel’s Failure to Object
Craft also contends he was deprived of a fair trial by his trial counsel’s failure to object to the excluded testimony by Davis. At the least, he argues, his counsel should have raised a motion for mistrial or crafted a curative admonition. Failure to do anything at all was a glaring example of ineffective assistance resulting in the deprivation of due process, he concludes.
In Strickland v. Washington (1984) 466 U.S. 668, the Supreme Court laid down the rule that the “benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (Id. at p. 686.) To reach such a conclusion, a criminal defendant bears a two-pronged burden: “First, the defendant must show that counsel’s performance was deficient. . . . 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.” (Id. at p. 687.)
In the first showing, no “particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions. . . .” (Strickland v. Washington, supra, 466 U.S. at pp. 688-689.) However, “[j]udicial scrutiny of counsel’s performance must be highly deferential. . . . Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” (Id. at 689, italics added.)
As we have previously declared, “[t]he failure to object to admissible evidence does not constitute ineffective assistance of counsel when to do so would have been futile. [Citations.] ‘Moreover, the decision to object or not to object to the admission of evidence is inherently tactical, and a failure to object will seldom establish ineffective assistance. [Citation.]’ [Citation.]” (People v. Ferraez (2003) 112 Cal.App.4th 925, 934-935.) Tactical decisions by trial counsel as to whether to object to specific evidence almost always are upheld as reasonable. (See People v. Catlin (2001) 26 Cal.4th 81, 165 [“the decision whether to object, move to strike, or seek admonition regarding such testimony [of a prior murder trial] is highly tactical, and depends upon counsel’s evaluation of the gravity of the problem and whether objection or other responses would serve only to highlight the undesirable testimony. . . .”]; see also People v. Huggins (2006) 38 Cal.4th 175, 248 [failure to object to prosecution evidence to rebut defense mental health expert not deficient performance as testimony was trivial]; People v. Dickey (2005) 35 Cal.4th 884, 914-915 [failure to object to alleged misstatements in argument not ineffective assistance]; People v. Zambrano (2004) 124 Cal.App.4th 228, 238 [no ineffective assistance for failing to object to questions when area of law in question]; People v. Viray (2005) 134 Cal.App.4th 1186, 1212.)
The one exception to this rule is found in People v. Donaldson (2001) 93 Cal.App.4th 916, 927-932. In Donaldson, there was absolutely no tactical explanation for defense counsel’s failure to object to the prosecutor calling herself as a witness to impeach crucial exculpatory evidence. Thus, a deficient performance and prejudice was sufficiently shown to warrant a reversal. (See also In re Hernandez (2006) 143 Cal.App.4th 459, 469 [Attorney General conceded there was no tactical reason for failing to object to clearly inadmissible expert opinion].)
Trial counsel testified at the hearing at length as to his thoughts, concerns and conclusions involving Davis’s reference to “gooks.” After ruminating over the issue, he felt strongly that any objection or argument over the issue would only heighten its importance in the mind of the jurors. As no other mention was made of it, he felt that the wisest move was to get Davis discharged as quickly as possible: He worried that the longer she was on the stand, the greater the chance she would start blurting out information supporting the allegation Craft was a racist. He specifically did not want to be the one who “opened the door” on the subject. Such considerations are tactical decisions which only trial counsel is in a position to adequately evaluate.
We do not second-guess trial counsel’s tactical decisions, and neither did the lower court in the hearing. (See Strickland v. Washington, supra, 466 U.S. at p. 689.) Hindsight can be amazingly clear, although the same situation is quite obscure on the opposite side of the timeline. The lower court found that Craft failed to meet his burden of showing deficient performance by trial counsel, and our review of the record supports the same conclusion. Craft complains that the trial court failed to ever address its ultimate duty under our order: to determine whether Craft was denied due process by the prosecutorial misconduct and the ineffective representation by trial counsel in failing to object to Davis’s answers. We disagree. Its findings on the relative credibility of witnesses and its factual findings in support of its denial of the petition constituted a clear decision on that ultimate issue, and one with which we agree.
The petition is denied.
WE CONCUR: ARONSON, J., FYBEL, J.