Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD196073, Michael D. Wellington, Judge.
McCONNELL, P. J.
Juvenal Botello was convicted by a jury of robbery (Pen. Code, § 211) and attempted robbery (§§ 211, 664). He admitted a prior strike conviction (§ 667, subds. (b)-(i)). The court sentenced him to a total term of six years, which consisted of a middle term of three years doubled because of the strike conviction for the robbery and a concurrent middle term of two years doubled to four years for the attempted robbery.
All statutory references are to the Penal Code unless otherwise specified.
Botello contends his counsel provided ineffective assistance because he failed to obtain corroborating evidence to support his misidentification defense, failed to request a continuance to obtain that evidence and failed to rehabilitate one of the witness's testimony. We affirm the judgment.
FACTS
About 8:30 p.m. on January 7, 2006, Faustino Diaz Perez, his brother Carlos Diaz Perez, and his friend Eduardo Lopez Hernandez were robbed by three Hispanic men near 30th Street and Clay Avenue. One of the robbers threatened Faustino with a knife and took a cell phone from Faustino's pants pocket. The shortest of the three robbers tried to take a chain from Carlos's neck and when Carlos tried to get away, the robber kicked him. The third robber held Hernandez.
We use the first names of Faustino Diaz Perez and his brother Carlos Diaz Perez to avoid confusion.
Hernandez asked a nearby store owner for help but the store owner said he did not have a phone. The three robbers walked away. Faustino followed the robbers while Hernandez and Carlos contacted Linda Gonzalez who was driving down the street. At their request, she called the police and told them there was a fight and a robbery. She described the attackers as three "gangster looking" Hispanic males. One was wearing a blue jersey with a number, another was wearing a grey sweatshirt and blue jeans, and the third one was wearing dark colors.
Faustino saw the robbers enter the property at 2950 Clay Street. The police arrived quickly and sealed off the area. Botello and Juan Ramos were found at the back of 2950 Clay Street hiding in a narrow space between a converted garage and a fence. Both generally matched the descriptions given by the victims and Gonzalez. On the ground nearby was a blue Charger football jersey with the number 17, a brown jacket, a beanie and a black shirt. The clothing looked as if "somebody . . . took it off and threw it in that area." About two feet from Botello and Ramos, the police found Faustino's cell phone on the top of a water heater. Two houses over, at 2930 Clay Avenue, the police found Manuel Estrada, who appeared to be hiding, and detained him.
Manuel Estrada is also known as Manuel Salas.
The police presented Botello, Ramos and Estrada individually to the victims. During these curbside identifications, the police separated the victim engaged in the identification from the other victims. Faustino went first and he identified Botello and Estrada as being involved in the robbery, but he did not identify Ramos. Carlos and Hernandez identified all three suspects as being involved in the robbery. Gonzalez did not formally participate in a lineup but she told a police officer that Ramos was one of the robbers.
At trial, Faustino and Hernandez identified Botello as the robber who had attacked Carlos.
Carolos did not testify because he had returned to Mexico.
Defense
The defense was based on misidentification.
Gonzalez, testified she had a good look only at the person with the knife who was short, light-skinned, bald-headed and very young. The other two robbers were taller and skinny. During the curbside lineups, she told a police officer that one of the suspects was too big and too heavy to be one of the robbers, but he did not pay attention to her. She did not see anyone who looked like the short man with the knife. She told a defense investigator a few days before she testified that Botello was not one of the robbers. Gonzalez also testified that the victims were talking to each other while the curbside lineups were being conducted. She testified that at the preliminary hearing, she had stated she had told a defense investigator that there were four suspects; that the fourth man stayed on the sidewalk and was not involved in the robbery; and that during the line-ups she identified one suspect as looking like this fourth person.
The store owner testified there were seven people involved in the incident — four victims and three assailants — and that he recognized all of them from the neighborhood. Botello was not one of those seven people. The store owner also testified that none of assailants had a knife and none of the victims asked for his help.
A twelve-year-old child who lived in the duplex at 2950 Clay Street, testified that while the police were in the area, he found a young, very short, skinny Hispanic man in his living room standing next to the front door looking out. The man stood there for a few minutes and then sat on the couch. The man did not say anything. The child was scared and returned to a bedroom where his sister and her boyfriend were. He was shown photographs of the suspects and was not able to identify anyone.
Estrada's girlfriend testified that sometime after dark, she dropped off Estrada at 29th Street and National. Estrada's aunt and his grandmother testified he was at his grandmother's house at 2930 Clay Avenue during the time of the robbery, playing video games and talking on the phone with his girlfriend. After he finished talking with his girlfriend, he went outside and was arrested.
Estrada's grandmother, who is also Botello's aunt, testified Botello would visit her occasionally without first calling to tell her that he was coming to visit.
The owner of the dwelling on the front of the Clay Avenue address where Botello was arrested testified he watched the curbside lineup. When the police brought Estrada out for identification by one victim, he heard the other two victims expressing doubts about Estrada being involved in the robbery. The owner went up to the victims, told them to tell the truth and then returned to where he had been standing. The owner also testified that his nephew lived in the converted garage on the property and that Botello would visit his nephew and "hang out there" with his friends.
DISCUSSION
I
Telephone Records
Botello contends his counsel provided ineffective assistance because he failed to obtain or request a continuance to obtain telephone records showing that Estrada was talking with his girlfriend on the phone at his grandmother's house during the time the robbery occurred. He contends that had these records been presented it would have undermined the reliability of the identifications by the victims and he would have obtained a more favorable result.
Originally, Botello and Estrada were scheduled to be jointly tried on April 26, 2006. Before trial, Estrada subpoenaed phone records to support his alibi defense. The prosecutor also subpoenaed the telephone records and forwarded them to Botello's counsel, but the records were not helpful because defense counsel had provided incorrect information. On May 1, 2006, Estrada's trial was severed from Botello's trial and continued to May 18, 2006. Botello's trial started on May 1, 2006, and the jury returned guilty verdicts on May 8, 2006. After Botello was convicted, Estrada subpoenaed and obtained additional telephone records. These additional records corroborated Estrada's claim he had been talking on the phone with his girlfriend at the time of the robbery and, as a result, the charges against him were dismissed.
We take judicial notice of the subpoenas and telephone records.
Botello filed a motion for new trial, contending the additional telephone records constituted newly discovered evidence. During the hearing on the motion, Botello's counsel indicated he "could have objected and asked for a continuance" to obtain the telephone records, but had anticipated that the records would be introduced by Estrada during a joint trial. The court denied the new trial motion, ruling that the telephone records did not constitute new evidence and Botello was not prejudiced because Estrada's alibi defense had only attenuated relevance to Botello's misidentification claim and there was strong evidence supporting Botello's convictions.
To establish denial of the right to effective assistance of counsel, the "defendant must show (1) that trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) that it is reasonably probable that a more favorable determination would have resulted in the absence of counsel's failings." (People v. Taylor (1990) 52 Cal.3d 719, 731; People v. Ochoa (1998) 19 Cal.4th 353, 445.)
" 'In evaluating defendant's showing we accord great deference to the tactical decisions of trial counsel in order to avoid "second-guessing counsel's tactics and chilling vigorous advocacy by tempting counsel to 'defend himself against a claim of ineffective assistance after trial rather than to defend his client against criminal charges at trial . . . .' " ' " (People v. Padilla (1995) 11 Cal.4th 891, 936, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Only when a critical tactical decision would not have been made by diligent, ordinarily prudent criminal trial attorneys will a reviewing court find ineffective assistance of counsel. (People v. Weaver (2001) 26 Cal.4th 876, 926.) On appeal, " '[i]f the record sheds no light on why counsel acted or failed to act in the manner challenged, "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," [citation], the contention [that counsel provided ineffective assistance] must be rejected.' " (People v. Mitcham (1992) 1 Cal.4th 1027, 1058.)
Here, Botello's counsel had received copies of telephone records before trial but these records were not helpful due to an error in the information provided to the prosecutor. Botello's defense counsel did present evidence of Estrada's alibi defense, that is, testimony by his aunt and grandmother that Estrada was inside the house talking to his girlfriend during the robbery, and argued that because the victims were wrong in identifying Estrada they were also wrong in identifying Botello. It was not unreasonable to take this approach since the telephone records that had been obtained by Estrada prior to trial did not assist his alibi defense.
Moreover, even if we were to conclude that Botello's defense counsel should have asked for a continuance and sought the additional telephone records, we would not reverse. As the trial court recognized, establishing Estrada's alibi had attenuated relevance in establishing Botello's innocence. Their circumstances were significantly different. Estrada was arrested two doors down from where Faustino had seen the robbers flee and in his own yard. In contrast, Botello was arrested on the property Faustino had identified and Botello did not reside on that property. Estrada was arrested alone and there was no property associated with robberies found near Estrada. In contrast, Botello was found with Ramos, another robbery suspect, and within a few feet of Faustino's cell phone and clothing that matched what the robbers had been wearing. In sum, unlike Estrada, Botello was connected to the robberies not merely by the identifications of the victims, but also by the fact that he was found exactly where the victims had stated the robbers had fled, and next to property taken from one of the victims.
We conclude it is not reasonably probable the jury would have acquitted Botello of the offenses if defense counsel had obtained and introduced the telephone records.
II
Examination of Gonzalez
Botello contends his counsel provided ineffective assistance by failing to rehabilitate Gonzalez and rebut the People's charge of recent fabrication with her consistent preliminary hearing testimony that Botello and Estrada were not involved in the robbery and her detailed description of a fourth suspect.
At the preliminary hearing, Gonzalez testified there were seven people involved. She stated the man with the knife was very short, bald, wearing a short-sleeved white T-shirt and black "Dickies," and that he walked away from the others.
At trial, Gonzalez was called by the defense. On direct examination, she testified she only saw the face of the robber with the knife; she saw only the backs of the other two robbers. She testified the man with the knife was very young, very short, and bald and was wearing blue "Dickies" and a white shirt. She was certain Botello was not one of the robbers because of his size. On cross-examination, the prosecutor brought out that Gonzalez had told an investigator and testified at the preliminary hearing that there were four suspects, one of whom was standing watching. Gonzalez testified at trial that this fourth suspect was tall, had glasses and was wearing a Charger football jersey. She explained that during the 911 call, she did not have time to describe what all the suspects were wearing and she did not describe what the robber with the knife was wearing. On redirect, she testified that she was not able to identify Botello at the preliminary hearing. She also testified when the curbside lineups were being conducted, she told a police officer that one of the individuals was not involved; he was too heavy and too big. During closing argument, the prosecutor, among other things, argued Gonzalez had fabricated the fourth suspect because she had failed to mention him in her 911 call, merely mentioned him at the preliminary hearing and only "now," "four months," later provided a detailed description of him.
Contrary to Botello's contention, the record shows that defense counsel did bring out that Gonzalez had not identified Botello as one of the robbery suspects at the preliminary hearing and had testified there were four suspects. Defense counsel may have made a tactical decision not to further examine Gonzalez on her preliminary hearing testimony as to the details of the fourth suspect to avoid focus on other inconsistencies in her preliminary hearing and trial testimony that could undermine her credibility to the detriment of the defense.
Moreover, Botello's convictions did not rest merely on eyewitness identifications, but also on the evidence showing he was found hiding in the area where the suspects fled and within feet of the victim's cell phone and clothing consistent with what the robbers had been wearing.
There is no reasonable probability that Botello would have been acquitted of the offenses had defense counsel elicited more detail about Gonzalez's preliminary hearing testimony about the fourth suspect.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O'ROURKE, J. AARON, J.