Opinion
NOT TO BE PUBLISHED
City and County of San Francisco Super. Ct. No. 192368
SIMONS, J.
Defendant Dan Bahn (appellant) appeals his conviction by jury trial of two counts of second degree robbery (Pen. Code, § 212.5, subd. (c)) (counts 1 and 3), and assault with a deadly weapon (§ 245, subd. (a)(1)) (count 2). The jury found true a deadly weapon use enhancement as to count 1 (§ 12022, subd. (b)(1)). In a bifurcated proceeding, the court found true two prior strike allegations (§ 667, subd. (a)). Appellant was sentenced to 61 years to life in state prison.
All undesignated section references are to the Penal Code.
The jury deadlocked on a second assault with a deadly weapon charge (count 4), and it was dismissed on the People’s motion. The jury found appellant not guilty of an attempted second degree robbery charge (§§ 212.5, subd. (c), 664) (count 5) and an assault with a deadly weapon charge (count 6). Counts 5 and 6 referred to an August 26, 2003 incident against Jin Wan Li.
Appellant contends his defense counsel provided ineffective assistance by “open[ing] the door” during his opening statement to the admission of highly prejudicial evidence. We conclude counsel’s representation fell below an objective standard of reasonableness, but that appellant has failed to demonstrate he was prejudiced thereby. Accordingly, we affirm.
In his opening brief, appellant contended the court erred in failing to award him presentence custody credits, and the People conceded the issue. In his reply brief, appellant states that at his request the trial court issued an amended abstract of judgment awarding him the presentence custody credits to which he was entitled. We thus treat the issue of presentence credits as abandoned. (See Roman v. Superior Court (2003) 113 Cal.App.4th 27, 37.)
BACKGROUND
August 24, 2003 Incident (Count 3)
At about 4:30 a.m. on August 24, 2003, Wan Li Li was delivering newspapers on Ellis Street near Hyde Street. As he opened a metal gate to a supermarket, a Chinese man greeted him in Chinese and walked away. The man returned and asked Li for money. When Li said he had no money, the man poked Li in the back with what Li believed was some kind of weapon and demanded money. Li was frightened and told the man there were some quarters inside Li’s vehicle. The man said the quarters would not do, and demanded the contents of Li’s pockets. Li took out his wallet and gave the man approximately $90. The man then demanded Li’s necklace, which Li gave him. The man then told Li to “leave quickly,” or he would “beat [Li] up.” Li then drove away and reported the incident to police.
In October 2003, Li viewed a police photo lineup and identified appellant as the person who robbed him. However, at the 2007 trial, Li was unable to identify appellant as the person who robbed him.
August 31, 2003 Incident (Counts 1 and 2)
On the afternoon of August 31, 2003, Sam Lam was walking on 9th Avenue in San Francisco when a man approached and asked Lam for $20 so he could purchase some medication at a pharmacy for a rash on his arms. Lam observed a rash on the man’s arm. After Lam said he had no money, the man pushed Lam into a doorway, angrily asked him again for money, began hitting him and pulled out a knife. Lam then took out his wallet and gave his assailant about $28. The assailant then demanded Lam’s identification. The assailant continued to hit Lam, stabbed him in the chest, yanked off his necklace and fled. Thereafter, Lam walked toward a group of people and, unbeknownst to him, the assailant was in the group. When the assailant saw Lam, he yelled, “Why are you following me?” Frightened, Lam crossed the street and went to the police station to report the incident.
Appellant was arrested on September 2, 2003, for a parole violation and possession of a crack pipe. At the time of his arrest, he had a rash on both arms.
On September 5, 2003, San Francisco Police Officer Luk showed Lam a photo lineup from which Lam identified appellant as his assailant. Lam was unable to identify appellant in court as the assailant.
DISCUSSION
Appellant contends his convictions must be reversed because defense counsel provided ineffective assistance of counsel during opening statement, and later was incompetent in failing to object to certain police officer testimony. In particular, appellant asserts that during opening statement, counsel improperly referred to appellant’s possession of a “crack pipe” and parole status at the time of his arrest, and improperly identified David Lee (Lee) as the person who actually committed the charged robberies despite the fact that Lee was in custody at the time the robberies were committed. Appellant also asserts that when the two police officers testified about his possession of the crack pipe and his parole status, counsel improperly failed to object. The procedural history underlying appellant’s ineffective assistance of counsel claim requires a detailed explication.
Pretrial Hearings
Prior to trial, defense counsel asked for access to the prosecutor’s file regarding Lee, apparently because he believed Lee might have committed the robberies alleged against appellant. The prosecutor turned over the file and stated that at the time appellant was arrested, he had Lee’s driver’s license in his possession, and the prosecutor believed Lee was in custody at the time of appellant’s charged offenses.
Subsequently, the defense sought to exclude as irrelevant and prejudicial two items of evidence found on appellant at the time of his arrest: a crack pipe and Lee’s wallet. The prosecutor responded that counsel had informed him that Lee was a potential defense witness. The prosecutor argued evidence of the wallet was relevant because Lee was arrested and convicted of two robberies occurring a week before those charged against appellant, and Lee resided at the location where appellant was arrested. Defense counsel then moved to suppress the pipe and wallet, and again argued they were not relevant to whether appellant committed a robbery days prior to his arrest. The court denied the motion to suppress.
Counsel and the court then took up the relevance and probative value of the wallet and crack pipe. Defense counsel argued the crack pipe possessed by appellant weeks after the charged incidents was not relevant to the charged robberies and was highly prejudicial because even occasional crack cocaine use “is associated in the popular mind with the raving junkie who was doing anything necessary to get his next fix.” He argued the wallet was “simply irrelevant” because there was no nexus to the robberies for which Lee was arrested or the robberies appellant was charged with. The prosecutor noted a second person had aided Lee in his robberies, and had not been arrested, and contended the crack pipe and wallet were relevant to establish that appellant was that second person. The prosecutor stated he wanted to offer evidence that Lee was convicted for robberies occurring in the Richmond District on August 13 and 16, 2003. He argued, “the fact that Mr. Lee was a robber, arrested and convicted at about the same time, and the fact that [Mr. Lee’s] property, identification was on [appellant] at the time of his arrest when he was going into the home of Mr. Lee” was relevant. Defense counsel responded the evidence was improper character evidence and more prejudicial than probative. (Evid. Code, §§ 1101, 352.) Both counsel agreed appellant had not been identified as a perpetrator in any of the Lee robberies, and the court stated the admissibility of the evidence would depend on whether Lee was called as a witness. Shortly thereafter, the court stated, “Let me just make the record clear in fairness to counsel. It seems to me at this point that there are a number of problems with the wallet . . . [a]nd we are having [Evidence Code section] 352 problems at this point with the crack pipe . . . . [¶] . . . [¶] . . . So I will be thinking on it further. But at this time I would ask that you not go into it in opening statement.” The prosecutor and defense counsel both indicated that Lee might be called as a witness. The court agreed that “until then, . . . his name is not going to come up.”
Opening Statements
The next day, the prosecutor made his opening statement making no mention of Lee, or that appellant was on parole and in possession of a crack pipe and Lee’s wallet at the time of his arrest. The prosecutor did mention appellant was arrested at a residence on the 2400 block of Fulton Street (hereafter Fulton Street residence).
Defense counsel began his opening statement as follows: “Thank you, Your Honor. Good morning, ladies and gentlemen. [Appellant] didn’t rob these people. He wasn’t arrested for that. If you can stand one more Lee, I will tell you what’s going on. There is a guy named David Lee, spelled L-e-e. He robs people. He’s got an apartment at [the Fulton Street residence] and it is a crack house, and other things that are associated with the shall we say drug trade and people trade go on there; sex for drugs, stuff like that. [¶] [Appellant] came to the police’s attention about two weeks after Mr. Lee was arrested for robberies. Mr. Lee was convicted of robbery and sent to prison. He might actually even show up here, I don’t know, he might take the Fifth . . . or not. We don’t know yet. [¶] August 17, 2003, Mr. Lee is arrested for several robberies. September 3, 2003, two and a half weeks later, [appellant] is going up to that house that the police are looking at. They are looking at that house because they want to see if any of the people who know or have been around Mr. Lee could be of interest to him. So they walk up, and they arrest [appellant] because he’s on parole and he’s got a crack pipe on him.” The prosecutor made an unspecified objection, an unreported bench conference ensued and thereafter, counsel continued his opening statement, “The truth is they arrest him for being on parole.” Counsel concluded his statement with no further mention of Lee, the crack pipe, the wallet, or appellant’s parole status.
Outside the presence of the jury, the court stated that prior to opening statements it had ordered counsel not to mention anything about Lee in their opening statements. The court then stated, “So at this point, then, all bets are off in terms of David Lee. My previous order not to discuss Mr. Lee is gone.” The prosecutor stated, “The court ruled that I could not bring [Evidence Code section 1101, subdivision (b) material] up in my case in chief in the opening, . . . but [counsel] then went against his own effort to preclude the prosecution from using that information and indicated that his client was on parole at the time of his arrest. And so he wants his cake and to eat it, too. He’s chosen some tactical maneuver to do this, but, it is against what the rulings of the court were in limine.” The prosecutor asserted that he should be given an opportunity to make a second opening statement to discuss the reason for appellant’s parole status and the signature style of his criminal activities which led to his prior conviction and parole.
Defense counsel responded, “I opened the door to the fact that David Lee exists, that his robberies may come into this, that [appellant] was arrested for a parole violation, that he had a crack pipe. [¶] I did not open the door with regard to any [Evidence Code section] 1101(b) material and I deliberately did not do that.” He argued the prosecutor should not be given a second opening statement.
The “shocked and stunned” court ruled that the prosecutor could make a second opening statement only about Lee, after which defense counsel could make a second opening statement “on the Mr. Lee issue.” The court further stated the prosecutor’s second opening could mention that appellant was in possession of “Mr. Lee’s stuff,” was arrested at Lee’s house, and Lee was in custody at the time the robberies appellant was charged with occurred. However, it ruled that the prosecutor could not talk about “the parole stuff and other [Evidence Code section] 1101(b) stuff.” After the prosecutor stated he anticipated that Lee would testify that appellant was with him during other robberies, and counsel objected to such testimony, the court ordered counsel not to discuss the details of Lee’s other robberies or Lee’s coperpetrators until the court considered those issues.
Thereafter, the prosecutor gave the following second opening statement: “I did mention just a moment ago things flow and you are not sure how a jury trial is going to go, but you just heard some information about David Lee, and some of the problems that David Lee had. [¶] David Lee is outside in the hallway and you might have just crossed paths. He was out of custody, but he was in custody at the time of all the events when [appellant] was charged. When [appellant] was arrested at David Lee’s house, David Lee was in jail, but [appellant] had on him a crack pipe, pipe for smoking crack, and the wallet of David Lee, all David Lee’s identifying information, despite the fact that Mr. Lee was in jail. [¶] So it is an interesting thing that I never mentioned originally, but because of the way things flow, I had an opportunity to bring this to your attention. And that evidence will also be shown through the testimony of witnesses.” Defense counsel declined to give a second opening statement.
Trial Testimony
At trial, San Francisco Police Officer Brothers testified that in August 2003 he participated in investigating a series of robberies, including one that took place in the Richmond District on August 15. The suspect was arrested on August 16 after committing another robbery on that date. Following the robbery of Lam on August 31, Brothers determined that the description of Lam’s robber matched the description of a suspect from the robberies of August 15 and 16, who had not been apprehended. On August 31, the investigating officers decided to go to Lee’s Fulton Street residence to look for the outstanding suspect. Brothers then shared this information with San Francisco Police Officer Carrasco. On cross-examination, the defense elicited from Brothers that Lee had been arrested as one of the participants in the August 15 and 16 incidents.
Carrasco testified that in August 2003 police were investigating a series of robberies that had occurred and were conducting surveillance at the Fulton Street residence, where they believed an outstanding robbery suspect was located. On September 2, Carrasco and his partner contacted appellant as he attempted to enter the Fulton Street residence, and arrested him. The officers thought appellant might be the suspect sought in the armed robberies. At the time of his arrest appellant was in possession of a crack pipe and a wallet containing Lee’s identification and some credit cards. Appellant was arrested for a parole violation and possession of a crack pipe.
Prosecutor’s Offers of Proof Regarding Lee
Later, the prosecutor clarified that the only evidence he wanted to elicit regarding Lee was that Lee was arrested on the evening of August 16, 2003, was later convicted of two robberies and one attempted robbery for incidents which occurred on August 15 and 16, was in continuous custody from August 16 until January 2007, and lived at the Fulton Street residence. The court overruled defense counsel’s relevance and materiality objections to the proffered testimony. Thereafter, the following colloquy occurred between the court and defense counsel regarding counsel’s Evidence Code section 352 objection:
“THE COURT: What inference [does the proffered testimony raise] that wasn’t already introduced by your opening statement?
“[COUNSEL]: The opening statement is not evidence. . . . So, I thought the evidence would come in a different way. If the jury follows instructions which they are presumed to do, this should not come in to further compound the error.
“THE COURT: It was created by you, [counsel].
“[COUNSEL]: Yes, inadvertently.
“THE COURT: Well, not inadvertently. Okay. It seemed pretty purposeful to me. So, I have looked again at the opening statement. . . . You said that Mr. Lee was actually convicted of robbery, you said that he lived at that address on Fulton. And he was arrested for several robberies and convicted and went to prison.
“[COUNSEL]: That’s what I am willing to stipulate to if the court overrules my objections.”
Thereafter, the court overruled counsel’s objections. Lee did not testify at trial because both counsel agreed to present the following stipulation to the jury: “Mr. David Lee lived at [the] Fulton Street [residence] in August 2003. [H]e was arrested on August 16, 2003 at 10:45 p.m. [H]e was in continuous custody from that date, August 16, 2003, until January 2007. [H]e was convicted of two robberies and one attempted robbery.”
Closing Arguments
In his closing argument, the prosecutor stated that after August 16, 2003, while Lee was in custody, the police decided to set up a surveillance of Lee’s Fulton Street residence in an effort to find the coperpetrator of Lee’s August 16 robbery and the “Cantonese-speaking perpetrator with a knife” of other robberies in the Richmond District. In doing so, the prosecutor argued, “David Lee was in custody as of August 16. He was in continuous custody from August 16 until January of this year. But the cops are trying to find the guy who got away, the other guy. The person [who was] committing additional crimes in the Richmond District, so they set up the surveillance on [the] Fulton Street [residence]. And Officer [C]arrasco is there when who comes walking along, walking up to the door of [the] Fulton Street [residence]? [Appellant.]” The prosecutor then argued that when appellant was arrested at the Fulton Street residence for a parole violation, he was in possession of a crack pipe and a wallet containing Lee’s identification. The prosecutor also argued, “When [appellant is] caught, he’s got a crack pipe. You’ll hear an instruction about motive. Drugs are a motive.”
Defense counsel argued that appellant did not commit the charged robberies. He asserted the prosecutor was asking the jury to speculate that the August 15 and 16 robberies might be attributable to appellant, but there was no such evidence presented. He also asserted that although appellant was in possession of a drug pipe when arrested, he was not in possession of any evidence to tie him to the charged robberies. In addition, he argued, “When you’ve got serious crimes like this and someone is found associated with the residence of David Lee with David Lee’s ID on him, which is what crack addicts do, they take other people’s ID, run up credit cards, see if they can get away with their parole violations by being someone else.” He concluded that the evidence did not support convicting appellant of the charged offenses.
A defendant claiming ineffective assistance of counsel has the burden to show: (1) counsel’s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) Prejudice is shown when “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, at p. 694.)
Moreover, “[r]eviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel’s omissions. [Citation.]” (People v. Lucas (1995) 12 Cal.4th 415, 442.) “When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citation.]” (People v. Anderson (2001) 25 Cal.4th 543, 569.)
Appellant notes that, in pretrial hearings, trial counsel strenuously sought to preclude the prosecutor from adducing the very evidence counsel brought up in his opening statement. Appellant argues there could be no rational tactical purpose for counsel’s “dramatic change of trial strategy” which allowed the prosecutor to proffer highly prejudicial evidence.
First, appellant argues the testimony of Brothers about prior robberies committed by Lee, who had resided at the address where appellant was arrested, and appellant’s possession of Lee’s identification card, directly tied appellant to Lee and created the inference appellant was involved in prior robberies committed by Lee. Appellant also argues that since Lee was in actual custody at the time of the charged offenses, any suggestion by counsel that Lee committed these robberies was nonsensical. Second, appellant argues evidence of his parole status established he was a convicted felon, recently released from prison. Third, appellant’s possession of a crack pipe permitted the jury to infer that he was a “bad person and a drug addict.” Though appellant acknowledges evidence of a defendant’s drug use may be admissible to establish motive, the prosecutor presented no evidence aside from appellant’s possession of the pipe, which, by itself, was insufficient to establish motive.
For the same reasons, appellant also argues that counsel’s failure to object to this testimony at trial constituted ineffective assistance of counsel.
The People argue counsel could have had a rational tactical purpose for making the challenged comments in his opening statement. He could have decided it was necessary to explain why appellant was arrested: he was a parolee looking for crack at a crack house. And the People assert the record reflects defense counsel believed that because attorney statements are not evidence, the testimony regarding Lee’s wallet would remain inadmissible.
The People concede the evidence ultimately introduced regarding Lee permitted the jury to infer appellant committed prior uncharged robberies with Lee and, therefore, had the propensity to commit the charged robberies. They also concede the evidence regarding appellant’s parole status and crack pipe possession permitted the jury to make inferences that were damaging to him. They acknowledge no limiting instructions were given regarding the evidence and any inferences to be drawn therefrom.
We reject the People’s assertion that defense counsel’s decision to open the door to this highly inflammatory evidence was a rational tactic. In fact, defense counsel implicitly recognized this by vigorously trying to exclude the identical evidence. The resulting problem was aggravated when defense counsel failed to object to testimony by Brothers linking the Lam robbery to the earlier robberies committed by Lee and failed to seek a limiting instruction on this evidence. Moreover, counsel’s comments regarding appellant’s parole status and possession of the crack pipe permitted the inference that appellant was a former convict and drug addict, and allowed the prosecutor to argue that drug addiction may have been a motive for committing robbery.
We conclude, however, that even if counsel’s performance was deficient, it did not prejudice appellant. Appellant has failed to establish a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different. The evidence of appellant’s guilt was strong. Within a week of being robbed in August 2003, Lam unequivocally identified appellant from a photo lineup as the person who robbed him. That Lam was unable to identify appellant in court more than three years later does not diminish the strength of his nearly contemporaneous identification. In addition, Lam testified his robber had a rash on his arms and demanded money to purchase medication for the rash. At the time of appellant’s arrest, he had a rash on both arms. Less than two months after being robbed, Li also unequivocally identified appellant from a photo lineup as the person who robbed him. In both the Lam and Li robberies, appellant demanded the victims’ money and then their necklaces.
As with Lam, Li’s inability to identify appellant in court more than three years after the robbery does not diminish the strength of his identification close to the time of the robbery.
In his 15-page closing argument, the prosecutor only briefly argued the inflammatory evidence admitted as a result of defense counsel’s incompetence. As to the evidence regarding the uncharged offenses, the prosecutor argued: “David Lee was in custody as of August 16. He was in continuous custody from August 16 until January of this year. But the cops are trying to find the guy who got away, the other guy. The person [who was] committing additional crimes in the Richmond District, so they set up the surveillance on [the] Fulton Street [residence] . . . when who comes walking along . . . ? [Appellant.]” Subsequently, the prosecutor argued, “When [appellant is] caught he’s got a crack pipe. You’ll hear an instruction about motive. Drugs are a motive.” The prosecutor did not refer to this evidence in his rebuttal argument. Neither the length of these arguments nor their content are sufficient to establish appellant was prejudiced.
Finally, the jury’s verdicts undermine appellant’s prejudice argument. The panel deadlocked on the count 4 assault charge against Li, and acquitted appellant on both counts (robbery and assault) in which the named victim was Jin Wan Li. This suggests the jury was able to evaluate the strength of the evidence presented, convicting appellant only of the offenses supported by strong evidence. Consequently, we reject the claim of ineffective assistance of counsel.
As to those counts involving Jin Wan Li, no identification evidence was presented tying appellant to the offenses.
Citing United States v. Cronic (1984) 466 U.S. 648, appellant argues that due to the “totally irrational nature of [counsel’s] trial strategy,” prejudice should be presumed from counsel’s ineffectiveness. We recognize that under a few egregious circumstances, a showing of prejudice is not required to establish an ineffective assistance of counsel claim. Under Cronic, prejudice is presumed where counsel completely failed to subject the prosecution’s case to meaningful adversarial testing. (Id. at p. 659.) The “Cronic exception” was applied where defense counsel conceded during argument that there was no reasonable doubt as to the only factual issues in dispute, and therefore conveyed to the jury that counsel believed his client to be guilty, constituting the abandonment of his client’s defense at a critical stage of the proceeding. (U.S. v. Swanson (9th Cir. 1991) 943 F.2d 1070.) Quite simply, nothing comparable occurred here. Although significant, counsel’s misconduct during opening argument and in failing to object to police testimony did not amount to an abandonment of appellant’s defense. Thus, the presumption of prejudice is inapplicable.
DISPOSITION
The judgment is affirmed.
We concur. JONES, P.J., STEVENS, J.
Retired Associate Justice of the Court of Appeal, First District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.