Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA075487. Bruce F. Marrs, Judge.
Deborah Blanchard, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Miguel Banuelos appeals from his misdemeanor convictions for evading a peace officer and driving under the influence. He contends his attorney was ineffective because she did not present or argue his motion for a continuance to retain an expert witness. He also asserts that the prosecutor committed misconduct in his closing and that the trial court erred by refusing to admonish the jury to disregard the prosecutor’s statement.
Banuelos’s arguments lack merit. His attorney’s failure to argue his tardy and unsupported motion to continue was reasonable and, in any event, Banuelos cannot show prejudice. The prosecutor’s comment on the absence of a motorcycle expert was not misconduct. The trial court did not err by declining to tell the jury to disregard the comment.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
At about 2:15 a.m. on April 22, 2006, California Highway Patrol Officers Thomas Michel and Jina Contreras were driving on the I-10. They heard a loud motorcycle behind them. Michel looked in his mirror and saw a motorcycle in the fast lane. It was going about 80 miles per hour. As the motorcycle passed, the rider turned his head to the right and seemed to look at the CHP car. Michel could not see the rider’s eyes through the helmet visor. Michel pulled into the fast lane behind the motorcycle. He turned on the car’s “full code three” rotating red, blue, and white lights as well as its flashing headlights. The CHP car came within 10 yards of the motorcycle. The rider looked back at the patrol car over his right shoulder. Then he “immediately accelerated really fast” to about 100 miles per hour. Michel turned on the siren. He estimated the motorcycle went as fast as 125 miles per hour. The pursuit lasted about a minute or 90 seconds and covered about one and one-half miles before the motorcycle cut across lanes and exited the freeway. Michel slowed down and exited too.
The officers found the motorcycle lying on its side on the off ramp. Appellant Miguel Banuelos was about 15 feet away, pinned under the guardrail. He smelled of alcohol. Banuelos, seriously injured, was taken to the hospital. Banuelos admitted to Contreras that he had been drinking. Testing of Banuelos’s blood showed a blood alcohol level of 0.11 percent.
At trial, Banuelos testified that he had had four or five beers plus at least two cocktails. He said he may well have consumed more than seven drinks. By his own description, he “was pretty impaired that night.” Banuelos testified he was “cruising” on his motorcycle at 90-95 miles per hour. He admitted he could have been going 100-125 miles per hour at one point. Banuelos denied ever seeing or hearing the patrol car or its lights or siren. Banuelos said that his motorcycle was very loud and that he could not see or hear well with his helmet and visor on. Banuelos claimed not to have noticed the CHP’s flashing lights in either of his handlebar-mounted rear view mirrors.
Despite his inebriation and his later serious injuries, Banuelos insisted he specifically remembered that he never looked to the right toward the patrol car nor over his right shoulder at the pursuing officers. Banuelos presented a motorcycle helmet as a defense exhibit at trial; he testified it was similar to the one he was wearing that night. He also showed the jury the dark visor he had on his helmet. Banuelos said he may have accelerated -- because it was easy to do that on his motorcycle -- but he did not do so intentionally. Banuelos claimed he headed off the freeway to go home, not to run from the CHP officers.
Banuelos admitted two prior felony convictions for burglary.
The jury acquitted Banuelos of felony evading but convicted him of the lesser included misdemeanor offense of evading a peace officer. The jury also convicted Banuelos on the misdemeanor counts of driving under the influence of alcohol and driving with a blood alcohol level of 0.08 percent or more. (Veh. Code, §§ 2800.2, subd. (a) & 23152, subds. (a) & (b).) The jury found that Banuelos drove with willful and wanton disregard for the safety of people or property as well as 30 miles per hour over the posted maximum speed limit on a freeway. (Veh. Code, § 23582, subd. (a).) The court sentenced Banuelos to concurrent one-year jail terms for the evading and driving under the influence counts. It stayed the remaining count under Penal Code section 654. The court suspended all mandatory fines and fees because Banuelos is in a wheelchair.
DISCUSSION
1. Banuelos’s ineffective assistance of counsel claim is meritless.
a. Banuelos’s belated motion to continue.
The court arraigned Banuelos on September 28, 2006, and set trial for November 14, 2006. On November 9, 2006, the court continued the trial to January 2, 2007. At a readiness conference on December 28, 2006, Banuelos apparently made an oral motion again to continue the case because he was undergoing physical therapy. The court denied the motion. On January 2, defense counsel renewed the motion to continue before the master calendar court as well as the trial court. Both courts denied the motion. Jury selection then began.
After lunch, with the jurors outside, Banuelos said he wanted to speak directly to the judge. He told the court he had “a specialist on motorcycles, on helmets and how they block peripherals and sounds, and I would like to bring him to testify in court.” Defense counsel explained that Banuelos wanted “a continuance to have the expert come to court.” The court noted that it was “a little late.” The prosecutor said he had heard nothing about any such expert. Banuelos apparently had mentioned this idea to his lawyer for the first time only moments earlier. Defense counsel explained, “I just learned of it after lunch for the first time. There is some motorcycle expert that Mr. Banuelos looked up on the internet that he wants to come to court to testify in this case. [¶] And I explained to him in terms of experts, that’s done well ahead of the day of jury trial, and the court has to approve and appoint and pay. And there’s a lot of paperwork and procedures to follow and so forth, and a witness list. I explained that to him, and his response to that was, well, I thought we were going to get a continuance this time based upon his physical therapy and so forth. He didn’t think that the case was actually going to go to trial at this point, although I indicated to him it likely would. [¶] This is the first I’ve heard of some motorcycle expert off the internet, but he’s requesting a continuance based on that.”
The court denied the motion to continue. The court explained to Banuelos that his statement about a person he had found on the internet was too speculative to justify a continuance, but that he could raise the issue again later if he had more information about the proposed expert’s qualifications and whereabouts.
On appeal, Banuelos argues that his attorney was ineffective because she “advocat[ed] against him” on the motion and “disclos[ed] privileged communications.” The record does not support Banuelos’s contention. When Banuelos insisted on presenting his oral motion to the court -- despite its untimeliness and its dubious merit -- defense counsel explained to the judge that Banuelos was seeking a continuance. A lawyer who declines to argue vigorously for a client’s every wish or demand does not by that conduct “advocate against” the client. It was in Banuelos’s long term interest for his trial attorney to maintain credibility with the court, and it was entirely appropriate for her to do so by explaining what Banuelos wanted without arguing strenuously for an untimely, ill-supported motion. Trial counsel’s mention to the court (and the prosecutor) that she was aware of – and had explained to her client – the rules requiring pretrial disclosure of experts was not a “disclos[ure of] privileged communications.” It appears rather to have been an effort to reassure the court and the district attorney that neither defense counsel nor Banuelos was trying to play fast and loose with the rules.
A claim that counsel was ineffective requires a showing, by a preponderance of the evidence, of (1) objectively unreasonable performance by counsel and (2) a reasonable probability that, but for counsel’s errors, appellant would have obtained a more favorable result. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) Citing In re Prescott (2007) 149 Cal.App.4th 243, Banuelos argues that “[c]ounsel’s failure to advocate for appellant at a critical state was so antithetical to her duty of loyalty that prejudice must be presumed.” The California Supreme Court depublished Prescott on June 13, 2007, before appellant filed his opening brief. So Banuelos’s citation of that case is improper.
b. Banuelos has not shown that his trial attorney’s performance was unreasonable.
Governing law imposes on Banuelos a “highly demanding” standard to prove “gross incompetence.” (Kimmelman v. Morrison (1986) 477 U.S. 365, 382 [citing Strickland v. Washington (1984) 466 U.S. 668].) This law requires us strongly to presume that counsel’s conduct fell within the wide range of reasonable professional assistance. (Strickland v. Washington, supra, 466 U.S. at p. 689.)
Banuelos has not made the required showing here. Competent counsel may well have seen no need for a motorcycle helmet expert. Banuelos brought both a helmet and a dark visor to the trial. He testified that the helmet was similar to the one he was wearing, and that the visor was the very one he had on that night. The court admitted both exhibits into evidence. Banuelos put the helmet on during his testimony and showed the jury that he could not turn his head very far with the helmet on. Defense counsel emphasized this testimony during closing. She urged the jurors to examine the helmet and the visor, and she pointed out that the visor bore a warning that it was not for use at night. The notion that expert testimony would have added appreciably to this evidence is entirely speculative.
In short, defense counsel cross-examined every prosecution witness, called Banuelos as a defense witness, introduced exhibits, and argued the case to the jury. Banuelos has not shown incompetence, much less gross incompetence.
c. Banuelos cannot show prejudice in any event.
Even if defense counsel’s statements to the court about the expert and the motion to continue constituted objectively unreasonable performance, Banuelos’s claim nonetheless fails because the record does not establish prejudice. Banuelos has not shown that the motion would have succeeded if counsel had made it or argued it fervently. (People v. Grant (1988) 45 Cal.3d 829, 864.) Banuelos had had more than three months since arraignment to retain his expert and to provide the required disclosure to the prosecution. He offered and offers no excuse for his failure even to raise the issue until trial was underway. Nor does he suggest why he had good cause for his failure to comply with Penal Code section 1050.
In rare cases, prejudice is presumed. See United States v. Cronic (1984) 466 U.S. 648 (Cronic). This is not one of those cases. Prejudice need not be shown where the trial lost “its character as a confrontation between adversaries,” (id. at pp. 656-657), i.e., where there was a “complete denial of counsel” at a critical stage, where “counsel entirely fail[ed] to subject the prosecution’s case to meaningful adversarial testing,” or where even a competent attorney would have been unable to provide effective assistance under the circumstances. (Id. at pp. 659-660.) The Cronic exception is extremely narrow. “When [the Court] spoke in Cronic of the possibility of presuming prejudice based on an attorney’s failure to test the prosecutor’s case, [it] indicated that the attorney’s failure must be complete.” (Bell v. Cone (2002) 535 U.S. 685, 696-697.) The California Supreme Court also has deemed the Cronic exception to be quite limited: “Defendants have been relieved of the obligation to show prejudice only where counsel was either totally absent or was prevented from assisting the defendant at a critical stage.” (In re Visciotti (1996) 14 Cal.4th 325, 353.)
In addition to its untimeliness, the motion was of doubtful merit. Banuelos did not identify the proposed expert, present his or her qualifications, or represent that he or she was available to testify. The motion therefore would have been equally speculative if counsel had made it. Moreover, the trial court may well not have allowed the proposed expert testimony. The court may have concluded that how much a person can see and hear while wearing a motorcycle helmet is not “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (Evid. Code, § 801, subd. (a).) As noted, Banuelos put the helmet on and demonstrated it for the jury. The prosecutor also put the helmet on during his closing argument. Both sides urged the jurors to examine the helmet in the jury room. Jurors could judge for themselves what the helmet-wearer could see and hear.
Finally, Banuelos must establish a reasonable probability that the testimony the expert would have given would have resulted in a more favorable outcome for him. Without a declaration from an expert stating his qualifications, his availability to testify, and the content of the testimony he would have given, Banuelos cannot show a reasonable probability of a more favorable outcome. (People v. Wash (1993) 6 Cal.4th 215, 269.) Because Banuelos submitted no expert declaration to the trial court and he cannot do so on appeal, his claim fails. The only proper vehicle for raising his claim is a petition for a writ of habeas corpus. (People v. Pope (1979) 23 Cal.3d 412, 426 overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.)
2. The prosecutor’s brief observation about the absence of expert testimony on motorcycle-riding was not misconduct.
In her closing argument, defense counsel argued that Banuelos’s testimony that he had never seen the CHP car or looked over his shoulder was credible: “I don’t know how many of you have ever ridden a motorcycle before, driven a motorcycle before, or even been a passenger on the back of a motorcycle, but when you are going that rate of speed, it is litera[lly] impossible to turn and look over your shoulder without having the bike sway from one point to another. [¶] The only way that Mr. Banuelos could have looked over his shoulder, as he testified, is if it was his right shoulder, he would have to move his right hand in order for the bike to remain going straight; otherwise, the bike would swerve a little bit. [¶] . . . [¶] If Mr. Banuelos were to look over his right shoulder while in motion, then the bike would automatically swerve.” Defense counsel also argued that the prosecutor’s demonstration during argument of his unimpaired ability to turn his head while wearing Banuelos’s helmet was inapt because the prosecutor was standing still: “Those are two different situations, when you’re on a bike going 80, 90, miles an hour, turning your head, than standing in a courtroom, not on a motorcycle, not trying to stay on the road.”
In his rebuttal the prosecutor responded: “Was there any motorcycle expert called by the defense who told you that when you’re on a motorcycle, you can’t turn your head? [¶] No, there wasn’t.” Defense counsel objected. The court sustained the objection. The prosecutor then asked the jury to think about their own observations while driving as to whether motorcycle riders turn their heads when changing lanes.
After the prosecutor finished, defense counsel at sidebar asked the court to instruct the jury to ignore his comment about the absence of a motorcycle expert. The prosecutor responded that it was permissible to comment on the defense’s failure to call logical witnesses. The court agreed: “The objection will be overruled on that particular point. I don’t intend to instruct the jury to do anything with that particular comment. I did sustain your objection, and it had more to do with prior issues brought up in the trial, not technical points of whether the people could comment about calling a witness or not calling a witness.” The court explained that it originally sustained the objection to prevent the prosecutor from “beat[ing] too much on that particular point, to the point where an appellate court could say, you know, well, it was unfair . . . .”
Banuelos argues the prosecutor knew the court had denied the defense motion for a continuance to hire an expert. So, Banuelos says, the prosecutor’s remark invited “the jury to infer that the absence of an expert for the defense was based on the non-meritorious nature of appellant’s claims [thereby] impliedly arguing facts outside the record . . . .” Without acknowledging the trial court’s comments at sidebar, Banuelos argues that the court already had found the remark improper and that it therefore erred by not telling the jury to disregard it.
When an appellant bases a prosecutorial misconduct claim on the prosecutor’s argument to the jury, we consider how a reasonable juror would, or could, have understood the statement in the context of the entire argument. (People v. Benson (1990) 52 Cal.3d 754, 793.) No misconduct exists if a juror would have taken the statement to state or imply nothing harmful. (Ibid.)
The trial court did not find that the remark about the absence of a motorcycle expert was misconduct. The court was correct: a prosecutor may comment on the state of the evidence or on the defense’s failure to call logical witnesses, introduce material evidence, or rebut the People’s case. (People v. Medina (1995) 11 Cal.4th 694, 755.) Moreover, the remark was a fair response to defense counsel’s argument that it was impossible for a motorcycle rider to turn his head when traveling at a significant speed. Even comments that otherwise would be improper are permissible if they fairly respond to defense counsel’s argument and are based on the record. (People v. McDaniel (1976) 16 Cal.3d 156, 177.) Reasonable jurors would not have understood the challenged argument as referring to matters outside the evidentiary record. Because there was no misconduct, the court did not err by declining to tell the jury to disregard the argument.
In any event, any potential for prejudice was dissipated by the jury instructions. The court had instructed the jury that the attorneys’ statements were not evidence (People v. Hughey (1987) 194 Cal.App.3d 1383, 1396), that the jurors were to decide all factual issues from the evidence at trial and no other source, and that neither side was required to call everyone who might have knowledge of the events.
For all of these reasons, we find no prosecutorial misconduct or error by the trial court as to the challenged argument.
DISPOSITION
The judgment is affirmed.
We concur: COOPER, P. J. FLIER, J.