Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC049269
NEEDHAM, J.
Edward Berry Armstrong (Armstrong) appeals from a judgment entered after a jury convicted him of rape and other offenses. He contends: (1) the court erred in imposing the upper term of sentence; (2) the prosecution failed to disclose material evidence as required by Brady v. Maryland (1963) 373 U.S. 83 (Brady); (3) his attorney provided ineffective assistance of counsel by failing to specify the purported Brady violation in his new trial motion; (4) the court should have granted a new trial due to newly discovered evidence; and (5) the court should have granted a new trial because defense counsel failed to investigate and call certain witnesses. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
This is the third appeal in proceedings initiated against Armstrong for the alleged rape of Lisa M. in February 2001. We begin by summarizing the charges and prior appeals to provide context for this appeal.
Although the parties refer to the records in the previous appeals (A096210 & A104525), those records have not been made a part of the record in this appeal. We therefore take judicial notice of the record in those other cases.
A. Jury Trial, Initial Sentence, and Appeal No. A096210
In April 2001, the San Mateo County District Attorney filed an information charging Armstrong with: inflicting corporal injury upon a cohabitant (Pen. Code, § 273.5, subd. (a); counts 1 & 3); making criminal threats (§ 422; counts 2 & 5); forcible rape (§ 261, subd. (a)(2); count 4); misdemeanor battery (§ 243, subd. (e); count 6); dissuading a witness (§ 136.1, subd. (a)(1); counts 7 & 8); threatening to use force upon a victim for assisting the prosecution (§ 140; count 9); violation of a domestic violence court order (§ 273.6, subd. (b); count 10); and brandishing a deadly weapon (§ 417, subd. (a)(1); count 11).
Unless otherwise indicated, all statutory references are to the Penal Code.
The information also alleged that Armstrong had two prior domestic violence convictions within seven years (§ 273.5, subd. (e)) for purposes of counts 1 and 3, and that he was ineligible for probation (§ 1203, subd. (e)(4)).
A jury trial commenced in June 2001.
1. Evidence at Trial
Lisa M. testified that she began a romantic relationship with Armstrong in December 2000. In January 2001, she received a telephone call from a woman who claimed to be Armstrong’s girlfriend. Upset by this information, Lisa M. refused to speak with Armstrong when he called her. Armstrong went to her home, pounded on her windows, and banged on her door, causing damage to the door frame. Lisa M. told Armstrong to leave or she would call the police. In response, Armstrong threatened Lisa M., telling her that he knew people who could hurt her. Lisa M. did not call the police.
Armstrong reconciled with Lisa M. and, in the first week of February, moved into Lisa M.’s home where she lived with her three children and her grandchild.
On February 18, 2001, Lisa M. testified, Armstrong became enraged and called Lisa M. a bitch, threw a bowl of food at her head, shook a can of beer and poured it over her, and flung a lit cigarette at her. Later he approached her and demanded sex. When she refused, he pushed Lisa M. onto the bed, pulled her pants off, ripped off her underwear, put her legs on his shoulders, pinned her arms down over her head, and raped her. Lisa M. told him to stop and kicked and struck him. She suffered a bruise to her leg and bruises to her arm.
Lisa M. took a shower. When she returned to the bedroom, Armstrong placed a knife to her throat, moved it in a slashing motion, and threatened to slit her neck and watch her gurgle in her own blood if she ever left him. Her children were home but did not hear anything, and Lisa M. did not inform them of the rape out of fear of what Armstrong would do if they confronted him. Terrified, she did not call the police. She slept in the same bed with Armstrong until morning and continued to have an intimate relationship with him until February 27, 2001.
On February 27, 2001, Armstrong became angry with Lisa M. while she was talking on the telephone. When Lisa M. tried to hand the phone to Armstrong, he threw it at her face. Following her into the backyard, Armstrong grabbed her face and neck and squeezed until she could not breathe, leaving welts and scratches. He later approached Lisa M. and her teenage son Michael in the kitchen, and when Michael glanced at a steak knife on the counter, Armstrong grabbed the knife, stood a few inches from Michael, and threatened to have someone “kick [his] ass.” Armstrong left the house, and Michael called the police.
Lisa M. made a police report regarding the incident and, at the same time, reported the February 18 rape. At trial, she claimed her delay in reporting the rape was due to her fear of what Armstrong might do to her or her children.
San Mateo Police Officer Scott Miller testified that he took pictures of Lisa M.’s fresh bruises to her face and the older bruise on her leg from the rape. He retrieved the ripped underwear and a steak knife from her kitchen. Officer Miller also obtained a restraining order prohibiting Armstrong from contacting Lisa M. and her children. Officer Miller served the restraining order on Armstrong and arrested him later that night. That same night Armstrong called Lisa M. three times from jail, in violation of the restraining order.
During the trial, Armstrong made a number of motions to obtain new defense counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). As discussed post to the extent germane to this appeal, these motions were denied.
No witnesses were called on Armstrong’s behalf at trial.
After the People’s case-in-chief, Armstrong was made aware that defense counsel did not plan on calling witnesses. He “walked” out of the proceedings and did not return.
2. Jury Verdict and Sentence
Upon the prosecutor’s motion, the court dismissed count 2 (criminal threats) and count 9 (use of force upon Lisa M. for assisting the prosecution) and all related allegations.
The jury found Armstrong guilty of counts 4 (rape), 5 (criminal threats), 6 (battery), 7 (dissuading a witness), 8 (dissuading a witness), and 10 (violation of domestic violence order). The jury found him not guilty of count 11 (brandishing) and was unable to reach a verdict on counts 1 and 3 (corporal injury on cohabitant). The trial court declared a mistrial as to those counts. In addition, the court found the allegations as to counts 4, 5, 7, and 8 to be true.
Before sentencing, Armstrong brought another Marsden motion, which was denied. The court sentenced Armstrong to state prison for an aggregate term of 12 years 4 months. Armstrong appealed.
3. Appeal No. A096210
In January 2003, we found that the trial court had erroneously denied the Marsden motion Armstrong made after the verdict and prior to sentencing. We vacated Armstrong’s sentence and remanded for the appointment of new counsel and further sentencing.
B. Sentence Upon Remand and Appeal No. A104525
In September 2003, Armstrong urged the trial court to hear his motion for a new trial. The court denied the request, construing the scope of the remand to be for the purpose of sentencing only. Armstrong was again sentenced to an aggregate term of 12 years 4 months in state prison. Again he appealed.
In March 2005, we reversed and remanded, on the ground that the trial court had erred in refusing to entertain Armstrong’s new trial motion.
C. New Trial Motions and Sentence Upon Remand
Upon remand, Armstrong brought two motions for a new trial, both of which were denied, and he was then re-sentenced. These rulings are the subject of the present appeal.
1. First New Trial Motion (Newly Discovered Evidence)
In August 2005, Armstrong filed a new trial motion on the ground that his new investigator discovered evidence “which could not, without reasonable diligence, have been discovered and produced at trial.” (Presumably, counsel meant evidence “which could not, with reasonable diligence, have been discovered and produced at trial.” [see § 1181, subd. (8)].) In particular, Armstrong asserted: (1) one of Lisa M.’s daughters had been raped before Lisa M.’s incident with Armstrong, and similarities between the daughter’s allegations and Lisa M.’s account of the rape by Armstrong suggested that Lisa M. had accused Armstrong falsely; (2) Lisa M. previously volunteered for a local rape crisis center, which, Armstrong argued, discredited her for not promptly reporting the rape by Armstrong; and (3) Lisa M.’s former husband, William M., and her former boyfriend, Sterling Williams, characterized her as one who would levy a false accusation out of anger or retaliation. In a supplemental brief, Armstrong added that Lisa M. committed perjury at the preliminary hearing and at trial by testifying that she was not involved romantically with another man, Marcus Stevens, at the time Armstrong raped her.
Lisa M.’s developmentally delayed daughter, Serena, was allegedly raped in 1998. The case was handled by the San Mateo District Attorney’s Office and was purportedly pending at the time of Armstrong’s trial. According to the police report, Lisa M.’s daughters had friends at the house while Lisa M. was out. Serena went into Lisa M.’s room to sleep, while her sisters and their guests stayed in the living room. A male guest entered the bedroom, climbed on top of Serena, and kissed her and sucked her breasts. He then pinned her arms down, put her legs over his shoulders, moved her underwear to the side, and penetrated her. After raping her four times, he left the bedroom. No one else in the house heard or saw the incident. A short time later, Serena emerged from the bedroom and told her sisters and friends what happened, and the perpetrator apologized. Serena showered after the rape and delayed reporting the rape to an adult.
Lisa M.’s former boyfriend, Sterling Williams, told the investigator that Lisa M. volunteered for a rape crisis center before the Armstrong rape. She did not physically work at the center, but answered a hotline that was forwarded to her home about twice a week. The investigator further advised that Lisa M.’s ex-husband, William M., said that Lisa M. worked at a rape crisis center “off and on through the years.”
Exhibits attached to the new trial motion included reports of Armstrong’s investigator, which purported to recount interviews she had with several individuals since the time of trial: Marcus Stevens (cohabitant of Lisa M. who claimed to be her boyfriend); Lawrence Stevens (Marcus Stevens’ father); William M. (Lisa M.’s former husband); Kelly Townsley (William M.’s girlfriend); Sterling Williams (Lisa M.’s former boyfriend); Jenette Jess (Marcus Stevens’ former girlfriend); Gary Casias (former housemate of Lisa M.); and Christopher Johnson (friend of Marcus Stevens and Armstrong). There were no affidavits or sworn declarations from the investigator or any of the witnesses. Nor was there any explanation why this evidence could not have been offered at trial.
The People opposed Armstrong’s motion, contending it was not supported by affidavits as required by statute and that the defense knew or should have discovered the purported new evidence by the time of trial.
2. Second New Trial Motion (Ineffective Assistance of Trial Counsel)
Armstrong filed a “Second Motion for New Trial” in January 2006. In this motion, he “agree[d] with the prosecution that almost all of the evidence now being brought forth to the Court’s attention was known to the defendant,” except for the evidence of Lisa M.’s work at a rape crisis center and the rape of her daughter. As to the evidence known to Armstrong, he contended that his trial attorney, Mr. Smith, provided ineffective assistance of counsel in failing to call witnesses to establish she was in a relationship with Marcus Stevens, failing to investigate adequately Armstrong’s theory of defense, and failing to call witnesses to establish that Lisa M.’s daughter had been raped and Lisa M. had volunteered for a rape trauma center.
3. Rulings on the New Trial Motions
At the hearing on March 17, 2006, the trial court considered and denied both motions. As to Armstrong’s new trial motion on the ground of newly discovered evidence, the court opined: “it does not appear to the Court that this evidence could . . . not with reasonable diligence have been discovered and produced at trial.” As to the second motion on the ground of ineffective assistance of counsel, the court concluded that Armstrong failed to show that counsel’s performance was deficient.
4. Sentence
In April 2006, the court sentenced Armstrong to state prison for a total term of 10 years 4 months. Specifically, the court selected count 5 (making a criminal threat, § 422) as the principle term and imposed a three-year upper term for that count, a consecutive mid-term of six years on count 4 (§ 261, subd. (a)(2)), consecutive eight-month terms (one-third the mid-terms) on counts 7 and 8 (§§ 136.1, subd. (b)(1) & (2)), and concurrent one-year terms on counts 6 and 10 (§ 243, subd. (e); 273.6, subd. (b)).
This appeal followed.
II. DISCUSSION
As mentioned, Armstrong contends: (1) the court erred in imposing the upper term of sentence on count 5; (2) the prosecution violated its obligations under Brady by failing to disclose that Lisa M. had previously volunteered for a rape crisis center and her daughter was raped in 1998; (3) his defense attorney provided ineffective assistance in failing to specify the purported Brady violation as a ground for his new trial motion; (4) the court erred in failing to grant a new trial on the ground of newly discovered evidence, based on Lisa M.’s work for the rape crisis center and her daughter’s rape; and (5) the court erred in failing to grant a new trial on the ground that defense counsel provided ineffective assistance of counsel in failing to adequately investigate and call certain witnesses. We address each contention in turn.
A. Imposition of Upper Term of Sentence
In selecting the upper term on count 5, the court explained: “The Court chooses that term as the Defendant’s prior convictions are numerous and of increasing seriousness. The crimes involve great violence and use of a weapon. The victim was particularly vulnerable. There are no factors in mitigation.” (Italics added.)
Armstrong contends that under Cunningham v. California (2007) 127 S.Ct. 856 (Cunningham), the court erred by imposing an upper term based on facts that were neither found by the jury nor admitted by Armstrong. In Cunningham, the court held that California’s determinate sentencing law violated a defendant’s federal constitutional right to a jury trial by assigning to the trial judge, rather than the jury, the authority to make factual findings that subject a defendant to the possibility of an upper term sentence. (Cunningham, supra, at p. 871.)
Our Supreme Court has since clarified how Cunningham should be applied. In People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), the court held that the aggravating fact of a prior conviction (see Cal. Rules of Court, rule 4.421(b)) is exempt from the constitutional requirement of a jury trial and proof beyond a reasonable doubt. (Sandoval, supra, at pp. 836-837; see Almendarez-Torres v. United States (1998) 523 U.S. 224.) In People v. Black (2007)41 Cal.4th 799, it was held that the federal Constitution does not preclude a court from imposing an upper term of sentence if the court finds and relies upon this recidivism factor, whether or not the court also cites other aggravating factors. (Sandoval, supra, at pp. 810-816.)
Here, one of the aggravating factors on which the trial court relied was that Armstrong’s prior convictions were numerous or of increasing seriousness. (Cal. Rules of Court, rule 4.421(b).) Substantial evidence supported this finding, as Armstrong had misdemeanor convictions in 1985, 1986, 1987, 1988, 1989, 1991, 1992, 1993, 1995, 1999, and 2000, as well as a felony conviction for narcotics sales in 1990 and a felony conviction for domestic violence in 1996. In addition, the instant offense occurred in 2001 and involved more serious conduct, including rape. Accordingly, the imposition of the upper term did not violate Armstrong’s constitutional rights under Cunningham.
B. Brady
Armstrong next contends that the prosecution violated its Brady obligations by failing to disclose Lisa M.’s work for a rape crisis center and her daughter’s 1998 rape. (See also § 1054.1, subd. (e) [imposing duty on prosecution to disclose exculpatory evidence].)
Under Brady, “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” (Brady, supra, 373 U.S. at pp. 86-87; see also Izazaga v. Superior Court (1991) 54 Cal.3d 356, 378 [all substantial material evidence favorable to accused must be disclosed regardless of whether the accused makes a discovery request].) A Brady violation occurs if: (1) the evidence was favorable to the accused (exculpatory or impeaching an adverse witness); (2) the evidence was willfully or inadvertently suppressed by the prosecutor; and (3) the defendant was prejudiced. (Strickler v. Greene (1999) 527 U.S. 263, 281-282 (Strickler).)
1. Evidence Favorable to the Accused
“Evidence is ‘favorable’ if it either helps the defendant or hurts the prosecution, as by impeaching one of its witnesses.” (In re Sassounian (1995) 9 Cal.4th 535, 544 (Sassounian).)
Here, Armstrong contends that Lisa M.’s volunteer work for the rape crisis center hotline would have impeached her claim that she was raped, because “[Lisa M.]’s level of sophistication and training as regards rape undermines her believability as someone who would delay the reporting of an allegedly vicious rape, or that she would continue to live with and engage in consensual sex with the alleged perpetrator.” In addition, Armstrong contends that the rape of Lisa M.’s daughter in 1998 was “astoundingly similar” to the description Lisa M. gave of the rape by Armstrong, and thus would have cast doubt on her allegation against Armstrong.
We accept for purposes of argument that this evidence was favorable within the meaning of Brady. For other reasons, however, Armstrong fails to establish a Brady violation: as discussed next, evidence of Lisa M.’s work for the rape crisis center was not suppressed by the prosecution, and neither this evidence nor evidence of the rape of Lisa M.’s daughter would have led to a more favorable verdict.
2. Evidence of Lisa M.’s Work for the Rape Center Was Not Suppressed
The prosecution must disclose exculpatory evidence in its actual or constructive possession. The duty of disclosure thus extends to evidence possessed by a person or agency that is part of the prosecution team, acting on the government’s behalf, or assisting the government’s case. (Kyles v. Whitley (1995) 514 U.S. 419, 437; In re Brown (1998) 17 Cal.4th 873, 881.) Conversely, the prosecution has no duty to search for or disclose information possessed by a person or agency that has no connection to the investigation or prosecution. (In re Steele (2004) 32 Cal.4th 682, 697.)
Armstrong has not established that evidence of Lisa M.’s volunteer work for the rape crisis center was known to the prosecution or within its constructive possession. According to the reports of Armstrong’s investigator, Lisa M.’s ex-husband William M. and her former boyfriend Sterling Williams stated that Lisa M. had volunteered at the center. Williams added that she staffed a hotline about two days a week from her own home. There is no evidence that they ever provided this information to the police or the prosecution. Although victim Lisa M. of course knew of her work for the center, she was not a member of the prosecution team, and there is no indication she disclosed this information to the police or prosecutor either.
Noting that the prosecution was in contact with Lisa M., Armstrong insists that a witness’s training, background and experience are relevant and necessary areas of inquiry and “[i]t is difficult to believe that the prosecution would not have learned in their discussions with Lisa M. about her prior training and experience as a rape crisis counselor.” This is mere conjecture, however, insufficient to establish the prosecutor’s actual or constructive possession of the information.
Armstrong repeatedly asserts in his reply brief that the prosecution must have had much more information than the defense concerning Lisa M.’s work for the center, because the respondent’s brief referred to her working for the hotline twice a week. Actually, this detail did not come from some secreted file in the district attorney’s office, as Armstrong insinuates, but from the report of Armstrong’s own investigator, attached to Armstrong’s new trial motion, and included in the record in this appeal on page 51 of the clerk’s transcript—as cited in the respondent’s brief.
Armstrong fails to establish a Brady violation based on evidence of Lisa M.’s work for the crisis center.
As to the rape of Lisa M.’s daughter, Armstrong argues that the information was in the actual or constructive possession of the prosecutor because the rape was being investigated by the San Mateo Police Department and prosecuted by the San Mateo District Attorney’s Office. Whether or not the prosecution had a duty to learn and disclose this information, as discussed post there was no Brady violation because the absence of the evidence was not prejudicial.
3. The Evidence Would Not Have Resulted in a Different Verdict
The verdict against Armstrong cannot be reversed under Brady unless the failure to produce information was prejudicial to Armstrong—in other words, unless the information was material because there is a reasonable probability Armstrong would have obtained a better verdict if the evidence had been disclosed. (See Strickler, supra, 527 U.S. at pp. 281-282, 289-291; Sassounian, supra, 9 Cal.4th at p. 544.)
Lisa M. testified at length to the details of the rape and the events preceding and following it. Her account was in significant part corroborated by other witnesses and physical evidence. For example, photographs of Lisa M.’s bruising and the panties Armstrong purportedly ripped were introduced into evidence. Her testimony as to matters surrounding the incident was corroborated by photographs of the door frame Armstrong broke and by testimony from Lisa M.’s daughter, Jacqueline, that Armstrong broke the front door, threatened Lisa M., and threw food, a bowl, and beer at Lisa M. on the night of the rape. Jacqueline also heard portions of the telephone calls Armstrong made to Lisa M. after he was arrested and, along with Lisa M.’s son Michael, observed the injuries Armstrong inflicted on Lisa M. on February 27th.
While Lisa M. was the only witness to testify about the actual rape, the evidence of her work for the rape crisis center would not have undermined her account. First of all, there is no direct evidence that Lisa M.’s volunteering for the rape hotline actually resulted in her possessing “sophistication and training” that would lead a jury to believe she would have necessarily reported a rape immediately. In addition, evidence of such training and sophistication would not have impeached her trial testimony, because she did not testify that her failure to report the rape immediately was due to her lack of sophistication or knowledge of the process. Instead, she explained that she did not report the rape because she was afraid of Armstrong, particularly in light of his threat to injure or kill her if she tried to leave him. Given the corroborated evidence of Armstrong’s anger and violence, this testimony is not unreasonable.
Nor would the evidence of the rape of Lisa M.’s daughter in 1998 have convinced the jury that Lisa M. lied about being raped by Armstrong in 2001. In describing the rape by Armstrong, Lisa M. did not merely recite the details of the rape of Serena. To the contrary, there were major differences between the two incidents. The rape of Serena was perpetrated by a stranger while Serena was sleeping; the rape of Lisa M. was perpetrated by Armstrong, who lived with Lisa M. in an existing sexual relationship, while Lisa M. was awake. Serena’s rape did not involve threats or violence other than the minimal force needed to overcome her attempt to push the perpetrator off; Armstrong’s rape of Lisa M. was preceded by acts of rage and violence. In Serena’s rape, the assailant did not ask for sex before the assault; Armstrong demanded sex of Lisa M. The perpetrator of Serena’s rape moved her underpants to the side rather than undressing her; Armstrong pushed Lisa M. on the bed and forcibly removed her clothing, tearing her underwear and bruising her thighs. Serena’s assailant never threatened her after the rape, and Serena immediately reported the rape to siblings and friends; Armstrong threatened Lisa M. and, because of those threats, she did not report the rape until Armstrong’s next attack.
It is true that, in both rapes, the perpetrator controlled his victim by pinning her arms down and putting her legs over his shoulders. However, there was no evidence that this approach is particularly distinctive or unique. On the record before us, the details of the rape of Serena would not have led the jury to doubt Lisa M.’s description of how she was raped by Armstrong.
Armstrong argues that Serena’s experience “provides at least as plausible a motive for her to exaggerate or lie as does say a reprisal from a boyfriend,” because “[o]ne can well envision the traumatic psychological impact the rape of one’s developmentally delayed child would have on an individual.” (Italics added.) However, the rape of Serena was not perpetrated by Armstrong. There is no indication why any anger, shock, or trauma by Lisa M. in late 1998 upon learning that a house guest raped her daughter—long before she ever even met Armstrong—would give Lisa M. a motive to accuse Armstrong falsely of rape in 2001.
Armstrong also urges that the prosecution’s disclosure of Serena’s rape would have impacted the defense’s investigation, leading it away from the fruitless pursuit of Marcus Stevens and his affair with Lisa M., and towards the effects of Serena’s rape on Lisa M. This refocused investigation, Armstrong contends, would in turn have led to the discovery that Lisa M. had worked for the rape crisis center, since Lisa M. would have disclosed this work if asked how Serena’s rape affected her. Armstrong’s argument rings hollow. In the first place, even after Armstrong’s new investigator learned about Serena’s rape, Armstrong still relied on the evidence of Marcus Stevens’ relationship in urging for a new trial. In any event, it is immaterial whether disclosure of Serena’s rape would have led to knowledge of Lisa M.’s work for the center, because, as discussed ante, evidence of her work at the center would not have resulted in a more favorable verdict anyway.
In the totality of the circumstances, Armstrong has not established that he would have obtained a more favorable outcome if the prosecution had provided the subject evidence to the defense. Armstrong fails to demonstrate a Brady violation.
C. Ineffective Assistance of Counsel
Armstrong next contends that, if we find he waived the Brady issue by failing to discuss it adequately in his new trial motion, his defense attorney provided ineffective assistance of counsel.
We have rejected Armstrong’s Brady claim for reasons other than waiver. Furthermore, because there was no Brady violation, any failure by defense counsel to assert a Brady argument did not constitute deficient representation to Armstrong’s prejudice, and thus could not constitute ineffective assistance of counsel. (See generally People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).)
D. Denial of New Trial Motion on Ground of New Evidence
Armstrong contends the trial court should have granted a new trial on the ground that information of Lisa M.’s work for the rape crisis hotline and Serena’s rape constituted newly discovered evidence. We disagree.
A new trial motion on the ground of newly discovered evidence must be supported by affidavits or declarations of the witnesses who would testify about the new evidence at trial. (§ 1181, subd. (8).) Armstrong did not comply with this requirement. The motion itself was signed by defense counsel, the witnesses’ information was provided in the form of unsworn statements by the defense investigator rather than by sworn declarations from the witnesses themselves, and none of the attachments to the motion—the police report and charging document regarding the rape of Serena or any of the investigator’s reports of her interviews—were even authenticated.
In addition, Armstrong’s motion fails on the merits. To obtain a new trial on this ground, the defendant must show, by sufficient evidence, that (1) the evidence, not merely its materiality, is newly discovered; (2) the evidence is not merely cumulative; (3) the evidence would render a different result probable upon retrial; and (4) the defendant could not with reasonable diligence have discovered and produced the evidence at trial. (People v. Delgado (1993) 5 Cal.4th 312, 328 (Delgado).) Given the trial court’s broad discretion in ruling on a motion for a new trial, its ruling will not be reversed unless “‘a manifest and unmistakable abuse of discretion clearly appears.’” (People v. Davis (1995) 10 Cal.4th 463, 524.)
Armstrong failed to show that the evidence of Lisa M.’s work for the center and her daughter’s rape was new evidence that he could not have discovered and produced at trial by the exercise of reasonable diligence. Armstrong offered no explanation in his moving papers, or any showing in the trial court, why the information from the interviews could not have been obtained before trial. The trial court therefore did not abuse its discretion in denying the motion on this basis.
Nor has Armstrong shown that the evidence would render a different result probable upon retrial. As discussed ante, the evidence of Lisa M.’s work for the hotline and Serena’s rape did little to impeach Lisa M., and it thus had only marginal relevance to the case.
For each of the foregoing reasons, Armstrong fails to establish that the trial court abused its discretion in denying a new trial on this ground.
E. Denial of New Trial Motion on Basis of Ineffective Assistance of Counsel
Lastly, Armstrong contends that he should obtain a new trial because his attorney rendered ineffective assistance in failing to investigate and call as witnesses certain individuals Armstrong discussed with counsel before or during trial.
1. Evidence Before the Trial Court
In denying Armstrong’s motion, the trial court referred in part to the transcripts of Armstrong’s trial and Marsden hearings, which provide some context for Armstrong’s claims of ineffective assistance. We summarize from those transcripts as well.
Before the prosecution rested its case, Armstrong complained to the court about his trial counsel, Mr. Smith. The court held a hearing on June 11, 2001. Armstrong asserted that he wanted counsel to call Jenette Jess and Ruth Turner as witnesses to testify about Marcus Stevens. Counsel responded that his investigator determined that these individuals offered no beneficial testimony. Counsel explained: “So, I am sure they tell Mr. Armstrong -- the women particularly have told Mr. Armstrong this and that, and they would be here if only they had a subpoena, yadda-yadda. I told him if he is talking to them, tell them to come on down here, they don’t have to have a subpoena. [¶] . . . [¶] They didn’t appear. And they don’t tell us anything that he says they are telling him. [¶] So again, I just don’t call witnesses for no reason.” Counsel also recounted his efforts to locate Marcus Stevens and explained that Stevens was hiding from the defense investigator. The court opined that counsel “has given the court, I think, good credible reasons as to why these people aren’t here. Either they have nothing to offer or he can’t find them.”
Attorney Smith indicated to the court at the start of trial that he might call the following witnesses: Marcus Stevens, Olivia Boudreaux, Ruth Turner, Jenette Jess, and Lawrence Stevens.
Armstrong refused to participate further in the trial. He claimed that he wanted to testify, but refused to do so unless other defense witnesses testified first. Counsel rested the defense case and confirmed that the witnesses Armstrong demanded “were either unavailable or irrelevant.” He added, “It would have been contrary to the defense strategy to call those witnesses before Mr. Armstrong testified.” (Italics added.) Defense counsel also represented that he invited Armstrong to return to the courtroom and take the stand to “get his side of the story out,” but Armstrong refused.
Armstrong renewed his complaints about his attorney and, at a hearing on June 12, 2001, counsel again explained that he had investigated the witnesses Armstrong identified and concluded they were unhelpful or were hiding from the defense. Counsel stated: “[Armstrong] told me his theories of the case and the defense. [¶] He provided me, at one visit . . . with a number of handwritten documents that he said he had tried to give to [his previous attorney Nowack] but Nowack hadn’t been inclined [to] receive. [¶] He gave me those and I have read them and I have tried to make use of the information in them that I thought would be beneficial to his defense. Not the least of which was to track down witnesses that I gleaned might be relevant from what he had written. [¶] And, as you know, the two that may have some relevance, as I say, refused to accept service or are hiding out. I can’t find them.” Counsel further explained that Ruth Turner informed his investigator “that she had nothing to say that was of benefit to this case,” he interviewed Josh Rose, Marcus Stevens’ father and mother, and Ruth Turner, he investigated Jenette Jess and a person named “Kristinn,” and he attempted to interview Marcus Stevens, who was hiding and evading service by the defense. Counsel also noted that Marcus Stevens would have been a hostile witness at trial.
The court observed that counsel was “an accomplished attorney, well respected,” and informed Armstrong that “he has done the best that he can for you.” The court further found “that there is no evidence presented by [Armstrong] that would portray [defense counsel] in any light other than a defense attorney rigorously trying to defendant [sic] you in this case.”
Armstrong raised the matter yet again on August 28, 2001. In what the court and parties consider to be a third Marsden motion, Armstrong repeated his complaint that witnesses were not called. This time, he acknowledged that the defense investigator told him the proposed witnesses refused to testify, but complained he had not seen the reports of some of this investigation in counsel’s file.
2. The Trial Court’s Ruling
Having considered the Marsden transcripts and other evidence before it, the trial court concluded that Armstrong had not established ineffective assistance of counsel and denied Armstrong’s new trial motion. The court found that trial counsel had conducted a sufficient investigation and made an informed tactical decision not to call the witnesses Armstrong identified. The court explained: “clearly Mr. Armstrong during the trial had his theory of what should be presented and what witnesses should be presented, and apparently when you look at the transcripts, specifically the Marsden transcripts, initially, as [new defense counsel] points out, Mr. Smith was inclined to call those witnesses or at least indicated he was thinking of calling those witnesses. However, it appeared that as the trial progressed, and he was -- and the witnesses, specifically Ms. Turner was unwilling to meet with his investigator and Mr. Stevens, Marcus Stevens was apparently avoiding service, it became clear that he was going to be unable to call those witnesses so his -- and as he states in the Marsden, he believed they were hostile to the defense, his trial tactics changed. [¶] Now, again clearly Mr. Smith and Mr. Armstrong did not agree on how the case should be presented, but that doesn’t mean that Mr. Smith was deficient in his representation. [¶] So, when you look at all that, when you look at whether or not Mr. Smith’s representation fell below an objective standard of reasonableness under prevailing professional warrant, I just don’t think it meets that standard. So motion for a new trial based on ineffective assistance of counsel is denied.”
3. Legal Standard
To demonstrate ineffective assistance of counsel, the defendant must show: (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and (2) prejudice. (Ledesma, supra, 43 Cal.3d at pp. 216-217.) We review the trial court’s ruling on a motion for a new trial based on a claim of ineffective assistance of counsel for abuse of discretion, accepting all factual and credibility findings if supported by substantial evidence. (People v. Callahan (2004) 124 Cal.App.4th 198, 209-211.)
The United States Supreme Court in Strickland admonished: “Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. 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; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’” (Strickland v. Washington (1984) 466 U.S. 668, 689 (Strickland); see also People v. Weaver (2001) 26 Cal.4th 876, 925-926 [“‘Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts.’”].)
4. Substantial Evidence That Counsel’s Performance Was Not Deficient
Substantial evidence supported the court’s determination that trial counsel’s performance was not deficient, because counsel conducted an adequate investigation and reached a sound tactical decision not to call the witnesses Armstrong wanted to call.
The investigator’s accounts of her interviews with Jenette Jess and Marcus Stevens show that the witnesses had no firsthand information concerning the alleged rape. Their statements are full of inadmissible hearsay and speculation. As shown by the transcript of the Marsden hearings, the witnesses had no meaningful relevant evidence to offer at trial, were unwilling to present beneficial testimony, or could not be located despite reasonable efforts.
Moreover, “[c]ounsel may make reasonable and informed decisions about how far to pursue particular lines of investigation,” and the defendant must show that counsel knew or should have known “further investigation might turn up materially favorable evidence.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1244, 1252.) “The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions. . . . [W]hen the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether.” (Strickland, supra, 466 U.S. at p. 691.)
Here, the record suggests that Armstrong explained to counsel the nature of the witnesses’ possible testimony and Lisa M.’s relationship with Marcus Stevens. As the defense acknowledged in the new trial motion, nearly all of the information in the interviews was known to the defense before trial. Counsel indicated that he had discussed potential witnesses and the defense with Armstrong, and even Armstrong asserted that he “wrote the whole story out” for counsel and discussed it with him. It is reasonable to conclude that, after considering what he had learned from Armstrong and from his own investigation, counsel reasonably believed that any further investigation would be unfruitful. Furthermore, counsel had little incentive to explore the possible testimony of Lisa M.’s estranged former husband, the current girlfriend of Lisa M.’s former husband, and Lisa M.’s estranged former boyfriend, given the likelihood they would be impeached for bias against Lisa M. Calling witnesses who are not particularly helpful, merely to appease the defendant, could turn out worse than calling no one.
5. No Prejudice to Armstrong
Substantial evidence also supported the conclusion that Armstrong failed to demonstrate any prejudice from counsel’s purported error. To establish prejudice, our Supreme Court requires the defendant to show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Ledesma, supra, 43 Cal.3d at pp. 217-218 [quoting Strickland, supra, 466 U.S. at pp. 693-694].)
Since little of the information Armstrong presented at his new trial motion would have been admissible at trial, and there is substantial indication that some of the prospective witnesses were avoiding the defense during trial, there is no reasonable probability that Armstrong would have received a more favorable outcome had counsel conducted further investigation and, assuming they could be found, compelled the witnesses to testify.
Armstrong asserts: “Had [Armstrong] known that no witnesses were to be called to support his innocence, he would have considered accepting the prosecution’s pretrial offer of pleading guilty in exchange for a four year sentence, a period of incarceration which has already been exceeded.” Before trial, the prosecution offered Armstrong a sentence of not more than four years if he pled guilty to one count of section 273.5.
To demonstrate ineffective assistance of counsel with respect to declining a plea bargain, the defendant must prove that “but for counsel’s deficient performance, the defendant would have accepted the proffered plea bargain and that in turn it would have been approved by the trial court.” (In re Alvernaz (1992) 2 Cal.4th 924, 937 (Alvernaz).) Alvernaz further explained that “a defendant’s self-serving statement—after trial, conviction, and sentence—that with competent advice he or she would have accepted a proffered plea bargain, is insufficient in and of itself to sustain the defendant’s burden of proof as to prejudice, and must be corroborated independently by objective evidence.” (Id. at p. 938, italics in original.) Moreover, “a defendant’s trial protestations, under oath, of complete innocence may detract from the credibility of a hindsight claim that a rejected plea bargain would have been accepted had a single variable (sentencing advice) been different.” (Id. at p. 940.)
Here, Armstrong never stated under oath or by declaration that he would have accepted a plea bargain if he knew no witnesses would be called. Secondhand assertions to this effect by his attorney at the new trial hearing and appellate counsel are not corroborated by the evidence. Indeed, Armstrong rejected the pretrial offer before defense counsel had provided the list of possible witnesses to the court. In addition, the declaration eventually filed by Armstrong in support of his new trial motion, asserted his complete innocence: “From the very beginning, I have always maintained my innocence as to the charges brought before me.” Given this record, Armstrong has failed to establish that he would have accepted the plea agreement or was otherwise prejudiced by counsel’s failure to call the witnesses Armstrong requested.
Armstrong has not demonstrated error in the trial court’s refusal to grant a new trial on the basis of ineffective assistance of counsel.
III. DISPOSITION
The judgment is affirmed.
We concur. SIMONS, Acting P. J. STEVENS, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.