Opinion
F077305
07-30-2020
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL PATRICK CLARK, Defendant and Appellant.
Catherine White, under appointment by the Court of Appeal, Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17CMS2075)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge. Catherine White, under appointment by the Court of Appeal, Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Peña, J. and DeSantos, J.
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INTRODUCTION
Defendant Michael Patrick Clark appeals his convictions for two counts of unlawful driving or taking of a vehicle in violation of Vehicle Code section 10851, subdivision (a). He asserts he received ineffective assistance of counsel because his counsel: (1) forced him to testify in narrative form, (2) failed to request a pinpoint instruction on a "claim-of-right" defense, and (3) did not argue defendant believed he had a claim of right to the vehicles during her closing argument. Defendant also asserts, and the People concede, the abstract of judgment should be revised to reflect the correct amount of presentence credit.
We affirm the judgment and order the court to prepare an amended abstract of judgment reflecting 540 days of presentence credit and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
FACTUAL AND PROCEDURAL BACKGROUND
Motel manager Tracy Hannah saw defendant washing two white SUV's, a GMC Acadia and a Chevrolet Equinox, in the motel parking lot around 6:30 one morning. She told defendant to leave. Forty-five minutes later, Hannah saw defendant still outside with the cars. Defendant cursed at Hannah when she again told him to leave, and Hannah told him she was calling the police. Hannah called 911.
Officer Jonathan Farr responded to Hannah's call. Farr spoke to Hannah in the parking lot and she explained the events of that morning. Defendant approached and began cursing at Hannah. Defendant told Farr his correct name and birth date. Farr asked defendant to remove the vehicles from the property. Farr then noticed Keller Motors dealership stickers that listed the sticker price and interest rate in the windows of the vehicles, which Farr thought was odd. Farr ran the cars' vehicle identification numbers and determined the cars had not yet been registered, meaning they did not belong to anyone and had not yet been sold; however, the cars had not been reported "stolen" by the owners. The cars also had paper license plates on them that said Keller Motors.
Officer Farr contacted Keller Motors, and its sales manager, Christopher Jimenez, went to the motel. Jimenez confirmed the cars belonged to Keller Motors. Jimenez explained that when a car is sold, Keller Motors places a trip sticker on the windshield that serves as the car's registration with the Department of Motor Vehicles; neither the Acadia nor the Equinox had trip stickers affixed to their windshields. Jimenez also explained Keller Motors affixes stickers with numbers on them to their cars' keys in order to track vehicle inventory; the sticker is removed from the keys when the car is sold. The Acadia keys found in defendant's possession still bore the sticker with this number on them. Defendant was also found in possession of another set of keys to a Buick still on Keller Motors's lot; the Buick keys also had the sticker with the inventory tracking number on it. Jimenez testified the Acadia and Equinox were each being sold for over $30,000. He also testified that at the end of June and beginning of July 2017, the dealership was a "mess" because the parking lot was being paved, so cars had been moved everywhere. He was aware of numerous instances when cars were left unlocked; he explained the cars could be driven away using the push start button if the keys were left inside.
Officer Farr arrested defendant. He searched defendant pursuant to the arrest and found a "scratcher game" and a related "mailer" on defendant and three sets of keys, including keys to the Acadia, the Equinox, and the Buick. The keys to the Acadia still had the Keller Motors dealership tags on them. Neither the Acadia nor the Equinox had broken windows, door locks, pry marks, or damage to the steering wheels.
Defendant told Officer Farr he had permission to take the cars because "his people" entered him in a sweepstakes through which he won the cars. \ Defendant admitted to Farr he went to Keller Motors at night on two different occasions at the end of June and beginning of July when the dealership was closed and tried the "scratcher keys" he received with the mailers on the two cars; the doors popped open so he believed he had won. He stated he was not going to go to the dealership during the day. The "scratcher" game involved participants scratching bubbles revealing the opportunity to win discounts or a car. Notably, the "scratchers" did not refer to Keller Motors but instead appeared to have been issued by a Chrysler Dodge dealership. Defendant told Farr he received the mailer found in his wallet through the mail, though it was addressed to a Maria Fernandez, who testified she did not know defendant and he did not have permission to take her mail.
At trial, defendant testified on his own behalf. Defense counsel questioned defendant about his prior convictions, which he admitted, and then she asked him "what happened surrounding the auto-theft charges against [him]." Defendant responded:
"Okay. Well, I got the scratcher tickets in the mail, you know, I was released from prison, you know, so I was couch surfing at the time. So my mail would come at different various places. I do admit that I played the game at the wrong time at night when I should have played it in the daytime and went to the office and got the right proper registration for the vehicles, which I didn't do, and then I ran into the incident in the parking lot with [Officer] Farr, and that's what brings me here in custody today. But as you see what is—clearly I have the flyer and I have the keys, which was no break in."
On cross-examination, defendant admitted he drove both the Equinox and the Acadia off the Keller Motors lot. He confirmed he took the cars at night, he did not meet with a Keller Motors salesperson nor did one give him the keys to the cars, and he did not fill out any paperwork related to the cars. He also admitted he had a key fob to a Buick, another car on the Keller Motors lot that he claimed to have won, and that he intended to go back to get that car as well. He testified he won a total of four cars through the sweepstakes.
The jury convicted defendant of both counts of taking or driving a stolen vehicle in violation of Vehicle Code section 10851 and the court sentenced him to an aggregate prison term of seven years four months.
DISCUSSION
Defendant argues he received ineffective assistance of counsel because he had to testify in narrative form and his counsel did not request an instruction on a claim-of-right defense or argue this defense in closing. We reject defendant's ineffective assistance of counsel claim. I. Ineffective Assistance of Counsel—Standard of Review
A defendant claiming ineffective assistance of counsel must satisfy the two-part test of Strickland v. Washington requiring a showing of counsel's deficient performance and prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) As to deficient performance, a defendant "must show that counsel's representation fell below an objective standard of reasonableness" measured against "prevailing professional norms." (Id. at p. 688.)
In evaluating trial counsel's actions, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (Strickland, supra, 466 U.S. at p. 689; see People v. Dennis (1998) 17 Cal.4th 468, 541.) Thus, a defendant must overcome the presumption that the challenged action might be considered sound trial strategy under the circumstances. (Strickland, supra, at p. 689; People v. Dennis, supra, at p. 541.) "Reasonableness must be assessed through the likely perspective of counsel at the time." (People v. Ochoa (1998) 19 Cal.4th 353, 445.)
The prejudice prong requires a defendant to establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Ibid.)
II. Presenting Defendant's Testimony in Narrative Form
Defendant first contends his counsel provided ineffective assistance by forcing him to testify in narrative form. We disagree.
A. Relevant procedural history
Before defendant testified, defense counsel asked to address the court outside the presence of the jury and the district attorney. Defense counsel then told the court defendant would be testifying against her advice and they would be "using the free narrative approach." She explained she and her investigators met with defendant three or four times and she informed defendant "he does not have the right to commit perjury on the stand, that any false testimony subjects him to possible prosecution, and if he perjures himself [she] will not participate in asking him questions hence the reason we'll be using the free narrative approach." She told the court she did not "know how many details [she] should get into regarding statements," but defendant had not affirmatively told her his testimony would be false.
The court referred defense counsel to "Criminal Law Procedure and Practice Section 2.30," and stated "'although defense counsel is ethically barred to affirmatively assisting the client to present testimony the attorney knows to be false, absent an admission by the client of an intent to testify falsely, a defense attorney must protect the defendant's right to testify and assist in the presentation of the defendant's testimony.'" Defense counsel acknowledged there is a conflict in the law with regard to that section, and the court stated "a free narrative is an appropriate approach." The court then confirmed with counsel and with defendant that neither was requesting counsel be relieved.
The court noted, "This is a conflict that would be reoccurring to any defense attorney." Defense counsel explained, "[W]ithout giving specifics, ... in meeting with [defendant], when [she and her investigators] would go over things, things would change in his story when confronted with questions from [them], and he would often talk about creating a defense or manufacturing a defense, but didn't outright ever say perjury or anything like that." Defendant stated his story never changed but that he wanted to proceed with his counsel and he would "work with her."
B. Applicable Law
"'[A]n attorney owes no duty to offer on his client's behalf testimony which is untrue.' [Citations.] Stated slightly differently, an attorney, including a criminal defense attorney, has a 'special duty ... to prevent and disclose frauds upon the court....' [Citation.]" (People v. Riel (2000) 22 Cal.4th 1153, 1217.)
"Although attorneys may not present evidence they know to be false or assist in perpetrating known frauds on the court, they may ethically present evidence that they suspect, but do not personally know, is false. Criminal defense attorneys sometimes have to present evidence that is incredible and that, not being naive, they might personally disbelieve. Presenting incredible evidence may raise difficult tactical decisions—if counsel finds evidence incredible, the fact finder may also—but, as long as counsel has no specific undisclosed factual knowledge of its falsity, it does not raise an ethical problem." (Ibid.)
"A '"lawyer should not conclude that testimony is or will be false unless there is a firm factual basis for doing so. Such a basis exists when facts known to the lawyer or the client's own statements indicate to the lawyer that the testimony or other evidence is false."'" (People v. Riel, supra, 22 Cal.4th at p. 1217.)
In People v. Guzman (1988) 45 Cal.3d 915, negative history on other grounds, the California Supreme Court denied the defendant's claim he received ineffective assistance of counsel because he was forced to testify in narrative form. (Id. at p. 942.) The Guzman court held counsel's conduct in presenting defendant's testimony in narrative form closely followed that formerly prescribed by the American Bar Association, which "recognizes that, although counsel need not elicit what he thinks will be perjured testimony, an accused has an absolute right to testify over counsel's objection." (Id. at p. 944.) The court held defense counsel's use of the narrative approach was "counsel's best effort to reconcile their duty of representation with their ethical obligations as officers of the court." (Id. at p. 945.)
A decade later, the California Supreme Court decided People v. Riel in which the defendant filed a motion for new trial on the basis of newly discovered evidence—a coperpetrator agreed to testify favorably on the defendant's behalf after the coperpetrator had pleaded guilty. (People v. Riel, supra, 22 Cal.4th at p. 1215.) Defense counsel notified the court they had a conflict regarding the coperpetrator in that he "made conflicting statements" and stated "in giving [a] statement favorable to defendant, 'he would be lying.'" (Id. at p. 1218; see id. at pp. 1216-1218.) The defense attorneys were not interested in producing perjured testimony, and the witness then indicated the favorable statement might not be a lie. (Id. at p. 1218.) The defense attorneys explained to the court they were not willing to produce potentially perjured testimony but did not reveal the witness's specific statements. (Ibid.) Defense counsel did not produce a declaration or other evidence supporting the new trial motion on this ground and, after the in camera hearing, the court denied the motion for new trial. (Id. at p. 1216.)
On appeal, the defendant argued his counsel was ineffective in refusing to present evidence "they think is incredible or conflicting rather than a genuine ethical problem." (People v. Riel, supra, 22 Cal.4th at pp. 1217-1218.) The California Supreme Court held, "counsel's statements indicate they understood the difference between not presenting witnesses because they 'had good information that they were lying' and presenting witnesses who they 'thought were lying because [they] didn't have the proof of it.' They thought this case fell within the former category" and the court could not conclude otherwise. (Id. at p. 1218.) The Riel court concluded it had "no basis to find that counsel acted other than as diligent advocates consistent with ethical constraints." (Ibid.)
C. Analysis
Defendant first argues his counsel "abandoned him and his defense that he honestly believed he had a claim of right" (capitalization omitted) when she made him testify in narrative form even though he never told her he planned to commit perjury. The People respond the California Supreme Court has approved of the narrative approach and counsel here had a "firm factual basis" for believing defendant planned to commit perjury. We cannot conclude counsel provided ineffective assistance by using the narrative approach.
This is not a situation where defense counsel merely did not wish to participate in the presentation of a defendant's testimony because she found it to be incredible or conflicting. Rather, while counsel noted defendant made conflicting statements, she also stated defendant expressly mentioned "creating" or "manufacturing a defense." Counsel was not more specific, possibly because she did not want to provide additional information harmful to her client. (See People v. Riel, supra, 22 Cal.4th at p. 1218.) However, based on such statements, defense counsel believed she had good information from which to believe defendant was lying. As in Riel, on the record before us, we cannot say otherwise. (See ibid.) Accordingly, defense counsel's use of the narrative approach was "counsel's best effort to reconcile [her] duty of representation with [her] ethical obligations as [an] officer of the court." (People v. Guzman, supra, 45 Cal.3d at p. 945.) And we cannot conclude defense counsel's actions fell outside of the wide range of reasonable professional assistance.
Moreover, defendant has not established he was prejudiced by testifying in narrative form. Rather, he had the opportunity to testify regarding his version of the events, including his belief that he won the vehicles. His counsel vigorously objected during his cross-examination, cross-examined the prosecution's witnesses, and argued in closing that the prosecution had not met its burden of establishing the requisite intent beyond a reasonable doubt. Defendant does not explain what additional evidence or questions, if any, his counsel could have presented during his testimony that would have assisted his defense such that there was a reasonable probability he would have received a favorable verdict.
Furthermore, as discussed in more detail post, the evidence against defendant was strong: he admitted taking the cars at night when the dealership was closed without presenting any documentation to anyone, and it was undisputed he did not have permission by the dealership to take them. Accordingly, we cannot conclude defense counsel was deficient in presenting defendant's testimony in narrative form or that defendant was prejudiced as a result.
II. "Claim-of-Right" Pinpoint Instruction and Closing Argument
Defendant next contends his counsel was ineffective because she failed to request a pinpoint instruction on a claim-of-right defense or argue this theory in her closing argument.
A. Applicable Law
"The claim-of-right defense provides that a defendant's good faith belief, even if mistakenly held, that he has a right or claim to property he takes from another negates the felonious intent necessary for conviction of theft or robbery." (People v. Tufunga (1999) 21 Cal.4th 935, 938.) CALCRIM No. 1863 provides a pinpoint instruction on the claim-of-right defense. It states:
"If the defendant obtained property under a claim of right, (he/she) did not have the intent required for the crime of (theft/[or] robbery).
"The defendant obtained property under a claim of right if (he/she) believed in good faith that (he/she) had a right to the specific property or a specific amount of money, and (he/she) openly took it.
"In deciding whether the defendant believed that (he/she) had a right to the property and whether (he/she) held that belief in good faith, consider all the facts known to (him/her) at the time (he/she) obtained the property, along with all the other evidence in the case. The defendant may hold a belief in good faith even if the belief is mistaken or unreasonable. But if
the defendant was aware of facts that made that belief completely unreasonable, you may conclude that the belief was not held in good faith.
"[The claim-of-right defense does not apply if the defendant attempted to conceal the taking at the time it occurred or after the taking was discovered.] [¶] ... [¶]
"If you have a reasonable doubt about whether the defendant had the intent required for (theft/[or] robbery), you must find (him/her) not guilty of __________ <insert specific theft crime>."
"'[A] trial court is not required to instruct on a claim-of-right defense unless there is evidence to support an inference that [the defendant] acted with a subjective belief he or she had a lawful claim on the property.'" (People v. Tufunga, supra, 21 Cal.4th at p. 944.) Moreover, the defense "does not apply where, 'although defendant may have "believed" he acted lawfully, he was aware of contrary facts which rendered such a belief wholly unreasonable, and hence in bad faith.' [Citation.]" (People v. Wooten (1996) 44 Cal.App.4th 1834, 1849.) Whether the defendant concealed his activities or did not conceal them is relevant to whether he had a good faith belief. (People v. Fenderson (2010) 188 Cal.App.4th 625, 644.)
B. Analysis
Defendant notes "[t]here was no real dispute at trial that [he] took and drove the two vehicles without Keller Motor[s]'s consent"; "[i]nstead, the only real question ... was whether [he] took the vehicles with the intent to steal them." He argues his defense "was simple: he had a claim of right." He argues his counsel was ineffective because she failed to request a pinpoint instruction on the claim-of-right defense, CALCRIM No. 1863. He also contends his counsel was ineffective for failing to argue he believed he had a claim of right to the cars in her closing argument. The People respond there was a lack of evidence supporting a claim-of-right defense, and counsel had at least one tactical reason for not requesting such a pinpoint instruction—there was evidence defendant concealed his taking of the vehicles, which undermined a defense of claim of right. They assert defendant failed to establish his counsel's closing argument "resulted in the withdrawal of a crucial defense." Finally, they argue the alleged deficiencies did not prejudice defendant. We agree with the People; there was no prejudicial error from which we can conclude defendant received ineffective assistance of counsel.
"[S]crutiny 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.' [Citation.]" (Strickland, supra, 466 U.S. at p. 689.)On direct appeal, when no explanation for counsel's conduct can be found in the record, "we must reject the claim [of ineffective assistance of counsel] on appeal unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation." (People v. Scott (1997) 15 Cal.4th 1188, 1212; see People v. Hernandez (2004) 33 Cal.4th 1040, 1053.)
Counsel in this case was not asked for an explanation for failing to request a jury instruction on claim of right or arguing this defense in closing, and there is a satisfactory explanation for her not requesting or focusing on it. Defendant did not qualify for it.
Additionally, under the narrative approach, if counsel knew a claim-of-right defense was only supported by perjured testimony, at least one court has suggested she had no duty to rely on such testimony in closing argument. (See People v. Johnson (1998) 62 Cal.App.4th 608, 624 ["Under the narrative approach, ... [i]n closing arguments, the attorney does not rely on any of the defendant's false testimony]; see also People v. Guzman, supra, 45 Cal.3d at pp. 945-946 [counsel not ineffective in using free narrative approach where counsel believed testimony to be perjurious and failure to argue defendant's testimony in closing argument did not signal to jury counsel disbelieved defendant].)
A claim-of-right instruction requires open taking of the property and no effort to conceal the taking at the time. (See People v. Wooten, supra, 44 Cal.App.4th at p. 1849; People v. Fenderson, supra, 188 Cal.App.4th at p. 644; see also CALCRIM No. 1863.) Here, defendant admitted taking both cars at nighttime, when the dealership was closed, without getting any paperwork or approval from the dealership. Indeed, Officer Farr testified defendant expressly stated he would not have gone to get the cars during the day, undermining defendant's claim that the taking was done openly and he was not trying to conceal it. Such evidence also belies his claim that his belief in his right to the property was held in good faith. (See People v. Fenderson, supra, 188 Cal.App.4th at p. 644 ["A lack of concealment is evidence that a defendant has a good faith belief in his or her right to the property at issue"].)
Furthermore, a claim of ineffective assistance of counsel can be disposed of without inquiry into counsel's possible tactical reasons for his or her actions if the reviewing court can determine that even if there was attorney error, it was not prejudicial. (People v. Kipp (1998) 18 Cal.4th 349, 366-367; Strickland, supra, 466 U.S. at p. 697.) And, even if we were to assume without deciding that a claim-of-right defense was supported by the evidence and defense counsel was deficient in failing to request such a pinpoint instruction and focusing on the defense in closing argument, we cannot conclude defendant has established a reasonable probability such an instruction and a related discussion in closing argument would have affected the verdict.
The evidence against defendant was very strong. He admitted taking both vehicles from the dealership parking lot and both vehicles were in his possession after the fact. The mailer defendant claimed evidenced the sweepstakes through which he won the vehicles was from a dealership other than Keller Motors; defendant did not go to the dealership and present the alleged winning scratchers but instead went to the dealership on two different occasions at night knowing the dealership was closed; and he drove off with the vehicles he claimed to rightfully own without presenting or receiving any documentation or otherwise speaking to anyone at the dealership. Additionally, there were a number of facts known to defendant that made his alleged belief he rightfully owned the vehicles "completely unreasonable." (See CALCRIM No. 1863.) As evidenced by his statement to Officer Farr, defendant knew he should not take the vehicles during the daytime while the dealership was open; he also knew he had not presented the alleged winning scratchers to the dealership, he had received no documentation for the cars, and the dealership had not given him the keys or otherwise given him permission to take the vehicles.
Furthermore, the jury was instructed that defendant had to have the requisite intent to be convicted—he intended to deprive the owner of possession or ownership of the vehicles for any period of time. In convicting defendant of the charges, the jury necessarily concluded he had the intent to deprive the owner, Keller Motors, of the property and rejected his testimony that he believed the property belonged to him. On this record, we cannot conclude it was reasonably probable counsel's alleged deficient performance—her failure to request a claim-of-right instruction or argue this defense in closing—affected the verdict.
Accordingly, because there was at least one tactical reason why counsel did not request a claim-of-right instruction or rely on such a defense in closing argument—and we cannot conclude defendant has established he was prejudiced as a result—we reject defendant's contention that his counsel provided ineffective assistance of counsel. (See People v. Wooten, supra, 44 Cal.App.4th at p. 1849 ["If [defendant] attempts to conceal the taking, either when it occurs or after it is discovered, the defense [of claim of right] is unavailable"]; People v. Fenderson, supra, 188 Cal.App.4th at p. 644 ["concealment (or absence of concealment) is relevant when a claim-of-right defense is raised in connection with theft by whatever means"]; see also CALCRIM No. 1863; cf. People v. Hussain (2014) 231 Cal.App.4th 261, 271 [no satisfactory reason for counsel not to request claim-of-right instruction where People conceded it was supported by evidence, it was "the heart of his defense," and defendant was prejudiced given jury "struggled with the element of intent" and acquitted defendant on every other charge indicating it did not reject defendant's testimony entirely].)
We reject defendant's contention.
III. Presentence Credit
Defendant argues he should have received credit for 540 days instead of 536 days. The People agree. Both parties note defendant was arrested and placed in custody on July 3, 2017, and he remained in custody until his sentencing on March 29, 2018. At sentencing, the court awarded him presentence credits for 268 days in custody pursuant to Penal Code section 2900.5 and 268 conduct credits under section 4019, for a total of 536 days' credit. !(9 RT: 1210)! However, the parties assert, and our review of the record reveals, defendant actually spent 270 days in custody as opposed to 268. (See § 2900.5 [defendant is entitled to custody credit for all actual days defendant is in custody].) And, section 4019 provides that a defendant is deemed to have served four days for every two days in actual custody. (See § 4019, subd. (f).) Accordingly, we agree with defendant and accept the People's concession that defendant should have received presentence credit for 540 days. The abstract of judgment should be amended accordingly to reflect the correct amount of presentence credit.
DISPOSITION
We affirm the judgment and order the court to prepare an amended abstract of judgment reflecting defendant received presentence credit for 540 days.