Opinion
C085087
12-14-2017
THE PEOPLE, Plaintiff and Respondent, v. ANDRE TYRONE DAVIS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE014226)
Appointed counsel for defendant Andre Tyrone Davis has filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) After reviewing the record, we affirm the judgment.
FACTS AND PROCEEDINGS
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
Johnross Pearce testified at trial that, on July 23, 2016, he was working as a front desk clerk at a local motel. At 7:00 p.m., a man who police later identified as Frederick A. stumbled to the front desk, bleeding from his neck and asking for help. Pearce called 911, administered first aid, and prayed with him. Frederick went to the ground and started blacking out. A video from the motel surveillance system was shown to the jury.
Detective Ronald Milton testified at trial that he and his partner Deputy Peter Thomas were the first police unit to arrive at the scene. They administered first aid until an ambulance arrived to take Frederick to the hospital. Frederick was treated with staples for his wound, and a photo was shown to the jury. Although Frederick did not testify at trial, 12 pages of his medical records were shown to the jury.
Detective Milton testified that Frederick was "[v]ery emotionally distraught," and said he had been stabbed inside room 212 by an African American man. Milton reviewed the motel surveillance video for 10 minutes prior and five minutes after the incident, and the only people who came in and out of room 212 were Frederick, "Mr. Andrillon," and a third man who police subsequently determined was defendant. Police found defendant at a light rail station near the motel at 8:00 p.m., detained him, and brought him back to the motel. Defendant was wearing the same clothes as the third man in the motel surveillance video. In addition, Milton found a wallet with defendant's driver's license in room 212. The photograph and physical description on the driver's license matched the man Milton saw in the motel surveillance video.
Deputy Thomas testified he spoke with defendant in his patrol car, after defendant was detained at the light rail station. Thomas read defendant his Miranda rights, and defendant agreed to give a statement. Defendant said he was in the motel room with Frederick. The two men started arguing and then Frederick "g[ot] in [defendant's] face." Defendant punched Frederick, and the two began fighting, with defendant eventually holding down Frederick on the bed and telling him to stop. Defendant denied cutting or stabbing Frederick, stating he did not know how Frederick got injured. Defendant said he had a three-inch pocket knife in the room but claimed he did not know what happened to it.
Miranda v. Arizona (1966) 384 U.S. 436 .
Crime scene investigator Rachael Lowery testified she examined the motel room and found blood stains around the foot of the bed. Lowery also found a three-inch folding knife with blood on the blade.
At trial, audio recordings of two jail phone calls from July 25 and 27, 2016, were played for the jury. During the first call, defendant said the "[man] got on me, I had to beat [him] up." During the second call, defendant said he "[b]eat the braces off this one [man]."
On May 4, 2017, defendant admitted two prior serious felony convictions. (Pen. Code, § 667.) On May 10, 2017, a jury convicted defendant of assault by means of force likely to produce great bodily injury. (§ 245, subd. (a)(4).) On June 9, 2017, the trial court sentenced defendant to state prison for eight years (four years for the assault conviction, doubled due to the strike). (§§ 245, subd. (a), 667, subds. (b)-(i).) The trial court dismissed the remaining prior strike. (§ 1385.) The trial court also imposed a $2,400 restitution fine (§ 1202.4, subd. (b)) and a corresponding $2,400 parole revocation fine suspended unless parole is revoked (§ 1202.45). In addition, the trial court imposed $402.38 in main jail booking fees. (Gov. Code, § 29550.2.)
Undesignated statutory references are to the Penal Code. --------
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and asks us to determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Counsel advised defendant of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant filed a timely supplemental brief arguing reversal is warranted for various reasons. In addition to undertaking a review of the record as required by Wende, we will address the issues raised in defendant's supplemental brief.
I
The Victim's Testimony
Defendant contends his Sixth Amendment right to confrontation was violated because the victim did not testify.
"A criminal defendant has the right, guaranteed by the confrontation clauses of both the federal and state Constitutions, to confront the prosecution's witnesses. [Citations] The right of confrontation 'seeks "to ensure that the defendant is able to conduct a 'personal examination and cross-examination of the witness, in which [the defendant] has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.' " [Citations.] To deny or significantly diminish this right deprives a defendant of the essential means of testing the credibility of the prosecution's witnesses, thus calling "into question the ultimate ' "integrity of the fact-finding process." ' " [Citation.]' [Citation.]" (People v. Herrera (2010) 49 Cal.4th 613, 620-621.)
While testimony during a criminal trial by the complaining witness or the victim of the crime charged is in most cases a staple of the prosecution's case, we are aware of no cases that hold that the victim must testify for the prosecution if the People believe they can prove their case without that testimony. To the extent that there is a due process argument lurking here, we note that, if the defendant believed the victim's testimony or the weaknesses in it were in his favor, on this record, nothing prevented him from calling the victim during the defendant's presentation of evidence.
Despite the lack of testimony from the victim during proceedings, numerous witnesses testified, including two police officers, the police crime scene investigator, and the motel front desk clerk. Defense counsel had ample opportunity to cross-examine the prosecution's witnesses and did so extensively. We find no violation of defendant's right to confrontation.
II
Ineffective Assistance of Counsel
In a related argument, defendant contends his trial counsel rendered ineffective assistance of counsel by (1) failing to call him as a witness, (2) failing to move to dismiss based on "no witness" testimony, and (3) failing to move for a retrial based on "no witness" testimony.
To establish ineffective assistance of counsel, a defendant must show counsel's performance was "deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms." (People v. Mai (2013) 57 Cal.4th 986, 1009.) A defendant must also show "resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (Ibid.) On review, the "court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." (Ibid.) Reversal is appropriate only if: "(1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation." (Ibid.; see also People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) All other ineffective assistance of counsel claims, "are more appropriately resolved in a habeas corpus proceeding." (Mai, at p. 1009; see also Mendoza Tello, at p. 267.)
To the extent defendant's contentions regarding defense counsel's decision not to move to dismiss or for a retrial are based on the lack of testimony from the victim, the prosecution presented substantial evidence of defendant's guilt. Detective Milton testified Frederick said an African American man stabbed him inside room 212, and defendant's wallet was found in that room. In addition, Deputy Thomas testified defendant said he got into a fight with Frederick in the motel room the night of the incident. Defendant also told Thomas that he had a three-inch pocket knife in the motel room, and the crime scene investigator testified she found a three-inch folding knife with blood on the blade in room 212. The motel's video surveillance showed defendant was one of only three people coming in and out of room 212 at the time of the incident. In addition, during jail house calls, defendant twice stated he beat up a man. Evidence was presented regarding Frederick's injuries, including excerpts from Frederick's medical records and testimony from Pearce and Detective Milton that they saw Frederick bleeding from his neck. Given this substantial evidence, presented even without the victim's testimony, counsel's decision not to move for a retrial does not constitute deficient performance. (See § 1181 [describing grounds for new trial]; People v. Taylor (1984) 162 Cal.App.3d 720, 724-726 [upholding a trial court's denial of a new trial motion where the trial court's express or implied factual findings are supported by substantial evidence]; People v. Brown (2009) 175 Cal.App.4th 1469, 1473 ["counsel is not required to make futile, baseless motions"].) In addition, defendant fails to establish how the lack of testimony from the victim constitutes a basis for a mistrial, which should be granted, " 'only when a party's chances of receiving a fair trial have been irreparably damaged.' " (People v. Clark (2011) 52 Cal.4th 856, 990.) Moreover, defendant failed to show he suffered any prejudice from counsel's alleged deficient performance.
We also reject defendant's contention that he received ineffective assistance of counsel based on the decision not to call defendant as a witness. Assuming without actually deciding that trial counsel did not have a valid tactical reason for doing so, defendant has not demonstrated that, if he had testified at trial, it is reasonably probable that the jury would have believed him and thus reached a more favorable result.
We note the defendant does not argue that he somehow was prevented by the court or counsel from testifying on his own behalf had he wanted to do so.
We have undertaken an examination of the entire record and find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
HULL, Acting P. J. We concur: ROBIE, J. RENNER, J.