Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tuolumne County No. CRF26234, James A. Boscoe, Judge.
Peter Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Catherine Chatman and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
Benjamin Luther Beck worked as a handyman at a private campground in return for hourly pay and lodging in a trailer where he, his fiancé, and her daughter lived. After his employer told him to look for other employment and housing, he set fire to the deck of his employer’s home and to his employer’s woodpile. A jury found him guilty of arson of an inhabited structure. On appeal, he argues an evidentiary issue, an instructional issue, a search warrant issue, and ineffective assistance of counsel. We affirm.
BACKGROUND
To an information charging Beck with the arson of an inhabited structure on January 31, 2008, and alleging two prison-term priors, he admitted the prison-term priors, a jury found him guilty, and the court imposed an aggregate nine-year sentence (an eight-year aggravated term on the arson and a consecutive one-year enhancement on one of the prison-term priors). (Pen. Code, §§ 451, subd. (b), 667.5, subd. (b).)
The abstract of judgment shows an incorrect case number. Even though neither party brought the error to our attention, we will order a correction on our own motion.
ISSUES ON APPEAL
Beck argues prejudice from (1) improper limitation of cross-examination of prosecution witnesses as to whether other people had a motive to harm his employer, (2) the instruction allowing the jury to infer consciousness of guilt, (3) misstatements in the affidavit in support of the search warrant that render the warrant fatally defective, and (4) ineffective assistance of counsel due to his attorney’s failure to renew the motion to suppress before the trial judge after denial of the motion at the preliminary hearing.
DISCUSSION
1. Limitation of Cross-Examination
Beck argues prejudice from improper limitation of cross-examination of prosecution witnesses as to whether other people had a motive to harm his employer. The Attorney General argues the contrary.
The issue arises out of the district attorney’s motion in limine “to prohibit the testimony of any witnesses about other people expressing a hatred or dislike” for Beck’s employer and his employer’s wife. At the ensuing hearing, Beck’s attorney opposed the motion, citing Evidence Code section 1324 as his authority for admissibility: “Evidence of a person’s general reputationwith reference to his character or a trait of his character at a relevant time in the community in which he then resided or in a group with which he then habitually associated is not made inadmissible by the hearsay rule.” (Italics added.) The court inquired, “What specific character trait would be at issue with respect to [Beck’s employer]?” His attorney replied, “That he is disliked by everybody and that he basically conducts himself unfairly with people that work for him and rent from him, would be the broad, specific.”
The prosecutor questioned whether Beck’s proffer of evidence was within the scope of the statute’s application to “a general reputation with reference to his character or a trait of character,” especially since “we have no idea how many people they’re particularly referring to.” Additionally, he criticized the proffer of evidence as allowing the defense to “cast aspersions” on Beck’s employer and his employer’s wife without giving the prosecution “an opportunity to cross-examine any people.”
Beck’s attorney argued that “the heart of the matter” was “a number of unhappy people who are associated with [his employer and his employer’s wife] in one capacity or another, who might have had the motive to set this fire.” Emphasizing that “there were other people that had problems with [his employer],” he argued that Beck “wasn’t the only person that ever had an argument or disagreement with [his employer]” and called his employer’s identifying Beck to arson investigators as someone with whom he had a problem or someone whom he thought might have set the fire as “very important.”
Addressing Beck’s attorney, the court observed that even if the motion in limine were granted “there would be nothing to prevent you from questioning [Beck’s employer] about other persons with whom he had disagreements in the park.” He replied, “Right. That’s true, Your Honor.” However, he urged the court to allow him “to ask other witnesses” not “what some one person may have said” but what the “general reputation” of Beck’s employer and his employer’s wife was in the community, “assuming there are some foundational requirements met about their knowledge of the community and how long had they lived there.” (Italics added.)
The court expressly offered the defense the opportunity to request a later hearing, outside the presence of the jury, for the admission of “specific evidence” under Evidence Code section 1324. He cautioned Beck’s attorney, however, that unless and until there were a “subsequent ruling” he should not adduce evidence of “any unsolicited statements by any witnesses that merely make reference to a statement that somebody other than the declarant did not like [Beck’s employer or his employer’s wife] for whatever reason.” On those conditions, the court granted the district attorney’s motion in limine on the grounds that “in this particular situation” the reputation of Beck’s employer and his employer’s wife was not “particularly relevant” and that neither the “character trait that’s being identified as one that puts them in disfavor” nor the issue of “whether or not it’s one that’s accepted in the general community” was “clear.” Beck cites to no defense request in the record for a later hearing outside the presence of the jury to establish the foundational requirements of admissibility of “specific evidence” under Evidence Code section 1324.
The constitutional right of confrontation includes the right to cross-examine witnesses. (Pointer v. Texas (1965) 380 U.S. 400, 404.) Indeed, the primary purpose of the constitutional right of confrontation is to secure for the opponent the opportunity of cross-examination. (Davis v. Alaska (1974) 415 U.S. 308, 315-316.) Even so, “trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679.) “Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” (Delaware v. Fensterer (1985) 474 U.S. 15, 20, italics in original.)
Although few constitutional rights are more fundamental to an accused than the right to present evidence in one’s own defense, the defense and the prosecution alike, in the exercise of that right, must comply with established rules of evidence and procedure designed to assure fairness and reliability in the ascertainment of guilt and innocence. (People v. Ayala (2000) 23 Cal.4th 225, 269, citing Chambers v. Mississippi (1973) 410 U.S. 284, 302.) Here, the record shows not an improper limitation of cross-examination but a proper insistence on compliance with established rules of evidence and procedure. There was no error.
2. CALCRIM No. 371
Beck argues prejudice from the instruction allowing the jury to infer consciousness of guilt. The Attorney General argues the contrary.
At the instruction-settling conference, the court put on the record the off-the-record in-chambers objection Beck’s attorney previously made to CALCRIM No. 371 and, reasoning “that sufficient inferences can be drawn from the evidence that support giving this instruction,” so instructed the jury:
“If someone other than the defendant tried to create false evidence, provide false testimony, or conceal or destroy evidence, that conduct may show the defendant was aware of his guilt, but only if the defendant was present and knew about that conduct, or, if not present, authorized the other person’s actions. It is up to you to decide the meaning and importance of this evidence. However, evidence of such conduct cannot prove guilt by itself.”
The argument in Beck’s appellant’s opening brief cites only to a single page of the reporter’s transcript showing the court’s order overruling his objection, a single page of the clerk’s transcript showing the text of CALCRIM No. 371, and a single page of the reporter’s transcript showing the prosecutor’s argument to the jury. The argument in his appellant’s reply brief cites to nothing at all in the record. So even though he predicates his argument on his fiancé’s statement to the investigator, the arguments in his briefs cite to nothing in the record showing the testimony of any of the witnesses.
The rules of court require “[e]ach brief” to “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” (Cal. Rules of Court, rules 8.204(a)(1)(C), 8.360(a).) “The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. It is entitled to the assistance of counsel.” (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 701, p. 769.) Arguments merely referring to the statement of facts, on the apparent assumption that the reviewing court will construct a theory of relief, misconstrue the respective roles of appellate counsel and the reviewing court. (See People v. Stanley (1995) 10 Cal.4th 764, 793.) We have no duty to parse the statement of facts in the appellant’s opening brief as to each argument in the appellant’s opening brief and each argument in the appellant’s reply brief to deduce which citations to the record in the statement of facts, if any, support each argument in the briefs. In the interest of judicial efficiency, however, we choose neither to order the briefs returned to Beck’s appellate attorney for corrections and refiling within a specified time nor to order his briefs stricken with leave to file new ones within a specified time but instead choose to disregard the noncompliance and address the arguments in his briefs. (See Cal. Rules of Court, rules 8.204(e)(2), 8.360(a).)
On the page of the reporter’s transcript to which the appellant’s opening brief cites as showing the prosecutor’s argument to the jury, the prosecutor argued as follows after quoting the text of CALCRIM No. 371:
“You know from [Beck’s fiancé] this is a small trailer. Not much bigger than this courtroom, is her testimony. [The arson investigator] knocks on the door. He’s talking to her. She’s saying, I saw nothing, I heard nothing, I did nothing. Where do you think the defendant is when this is happening? He was right there. He’s not right there, he’s right there, he’s nearby. He knows that she’s lying. Heck, he’s the one that took her out and showed her the fire, if you believe her version. And then – of course, then he came to the door and said, ‘I know nothing except I went out at 10:00 in the morning.’ And then she says that, and then [his fiancé’s daughter] comes forward and says, ‘I don’t know what you’re talking about. Especially about 9:30 to 10:15, I don’t know anything about that.’”
The Attorney General cites to the record of testimony about the investigator’s visit to Beck’s trailer shortly after the fire. His fiancé’s daughter testified that she, her mother, and Beck were all in the living room as the investigator stood outside talking with them through the open door that opened into the living room of the trailer. The investigator testified that after Beck’s fiancé opened the door of the trailer he spoke through the open door, first with Beck and then with his fiancé, but that the only person he could see was the person with whom he was speaking since the door was partly covered by drapes to keep the cold out.
On that record, the Attorney General argues the jury could infer Beck heard and had the ability to correct his fiancé’s statements to the investigator that no one left the trailer and that she knew nothing about the fire. Additionally, he argues, the jury could find Beck’s silence showed his adoption of her statements and his consciousness of guilt.
Arguing the contrary, Beck relies on the rule of law “that proof of a criminal defendant’s ‘mere opportunity’ to authorize a third person to attempt to influence a witness ‘has no value as circumstantial evidence’ that the defendant did so.” (People v. Williams (1997) 16 Cal.4th 153, 200, citing People v. Terry (1962) 57 Cal.2d 538, 566, italics added.) Here, however, the issue is not whether, “if not present,” Beck “authorized the other person’s actions” but whether, “if … present,” he “knew about that conduct.” (CALCRIM No. 371, italics added.) Williams and Terry are inapposite.
Beck relies, too, on the rule of law “that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference.” (People v. Hannon (1977) 19 Cal.3d 588, 597, disapproved on another ground by People v. Martinez (2000) 22 Cal.4th 750, 762-763.) Here, the court evaluated the evidence at the instruction-settling conference and found that the jury could draw sufficient inferences to justify instruction on consciousness of guilt before overruling Beck’s objection to CALCRIM No. 371 and so instructing the jury. Hannon likewise is inapposite. There was no error.
3. Affidavit in Support of Search Warrant
Beck argues prejudice from misstatements in the affidavit in support of the search warrant that render the warrant fatally defective. The Attorney General argues that Beck forfeited his right to appellate review by not renewing his motion to suppress before the trial judge after denial of the motion before the preliminary hearing and, alternatively, that sufficient evidence supports the finding of probable cause.
Preliminarily, we address the Attorney General’s forfeiture argument. Beck filed a motion to traverse the search warrant and to suppress the evidence on March 20, 2008. The prosecutor filed a reply on April 1, 2008. Before the preliminary hearing, the court denied the motion on April 11, 2008. The parties agree Beck never renewed the motion before the trial judge. The rule is settled that to preserve the right of appellate review a motion challenging a search and seizure must be brought before the trial judge. (People v. Miranda (1987) 44 Cal.3d 57, 80, citing People v. Lilienthal (1978) 22 Cal.3d 891, 895-897.) Nothing in the unification of the municipal and the superior courts changed the settled rule. (People v. Richardson (2007) 156 Cal.App.4th 574, 582-589.) Since Beck forfeited his right to appellate review, the issue of whether the search warrant was fatally defective is not before us.
4. Assistance of Counsel
Beck argues ineffective assistance of counsel due to his attorney’s failure to renew the motion to suppress before the trial judge after denial of the motion at the preliminary hearing. The Attorney General argues the contrary.
The right to counsel protects the due process right to a fair trial by guaranteeing “access to counsel’s skill and knowledge” and an “‘ample opportunity to meet the case of the prosecution.’” (Strickland v. Washington (1984) 466 U.S. 668, 684-686 (Strickland).) To establish ineffective assistance, the defendant must show by a preponderance of the evidence that counsel’s performance “fell below an objective standard of reasonableness” and prejudiced the defense. (Id. at pp. 687-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) To establish prejudice, the defendant must show a “reasonable probability” “sufficient to undermine confidence in the outcome” that but for counsel’s performance “the result of the proceeding would have been different.” (Strickland, supra, at pp. 693-694; Ledesma, supra, at pp. 216-217.) A reviewing court can adjudicate an ineffective assistance claim solely on the issue of prejudice without evaluating counsel’s performance. (Strickland, supra, at p. 697.)
Articulating his claim for relief on the ground of ineffective assistance of counsel, Beck argues that there was “no tactical reason not to renew the motion to suppress, in the trial court, the evidence obtained as a result of the search pursuant to the search warrant.” He continues:
“The worst thing that could have happened would be that the motion would be denied – at that point [he] would have been in no worse position than if he had not renewed the motion. But if the motion had been granted, he would have been in a much better position, for the evidence found in the search would have been suppressed.”
Basically, Beck’s claim rewords the “nothing to lose” standard that the United States Supreme Court discredited for evaluating attorney trial strategy in determining whether counsel’s performance constitutes ineffective assistance under Strickland. (Knowles v. Mirzayance (2009) ___ U.S. ___, ___ [173 L.Ed.2d 251, 261; 129 S.Ct. 1411, 1419].) “With no Supreme Court precedent establishing a ‘nothing to lose’ standard for ineffective-assistance-of-counsel claims,” the high court emphasized how absurd such a standard would be: “Finding that counsel is deficient by abandoning a defense where there is nothing to gain from that abandonment is equivalent to finding that counsel is deficient by declining to pursue a strategy where there is nothing to lose from pursuit of that strategy.” (Ibid. at p. ___ & fn. 3 [173 L.Ed.2d at pp. 261-262 & fn. 3; 129 S.Ct. at p. ___ & fn. 3].)
“Without this evidence, it is clear that the prosecution would have had a much weaker case,” Beck argues, referring to work boots that the police seized on the authority of the search warrant and that a criminalist testified were consistent in tread pattern to the boot prints in photographs the investigator took at his employer’s home. “Without this evidence,” he argues, “there would have been no way to tie [him] to the boot prints.” On the basis of that evidence, he concludes, “Therefore, the failure to renew the motion to suppress deprived [him] of an opportunity to obtain an adjudication of a potentially meritorious defense, which could have affected the outcome of the case.” (Italics added.)
Beck’s argument suffers two fundamental flaws. First, the criminalist’s testimony about the boots was hardly pivotal to the case against him. On the day after the arson, officers observed that the hair on the back of his hands was singed. He told the investigator that things were fine between his employer and him, but after more questions he admitted they had a disagreement “way back in November,” and after additional questions he admitted they had an argument two weeks before the arson. His fiancé told the investigator that she heard, saw, and remembered nothing about the arson, but she testified that he left the trailer for 10 minutes on the night of the arson and returned saying he wanted her to see a fire or something outside and that she saw something “sparky” after going outside with him. Characterizing him as upset with his employer, she said, “Maybe he did start it.” Her daughter testified that her statements about her mother and Beck leaving the trailer on the night of the arson were the truth and that her statements to the contrary to the investigator were a lie. She testified that he was angry and weird when he left the trailer on the night of the arson and that he smelled like beer and wood when he returned.
Second, the criminalist’s testimony about the boots, in Beck’s own words, “could have affected the outcome of the case.” (Italics added.) Yet his burden on appeal is to show a “reasonable probability” “sufficient to undermine confidence in the outcome” that but for counsel’s performance “the result of the proceeding would have been different.” (Strickland, supra, 466 U.S. at pp. 693-694, italics added; Ledesma, supra, 43 Cal.3d at pp. 216-217.) Even if couching his burden in those words was a mere inadvertence, he nonetheless fails to make the requisite showing of prejudice, on which ground we reject his ineffective assistance claim without evaluating counsel’s performance. (Strickland, supra, at p. 697.)
DISPOSITION
The matter is remanded with directions to the superior court to order that the case number in the abstract of judgment be corrected and that certified copies of the amended abstract of judgment be sent to all appropriate persons. (People v. Mitchell (2001) 26 Cal.4th 181, 186-188.) Beck has no right to be present at those proceedings. (See People v. Price (1991) 1 Cal.4th 324, 407-408.) Otherwise, the judgment is affirmed.
WE CONCUR: Vartabedian, Acting P.J., Poochigian, J.