Opinion
F074796
12-14-2018
THE PEOPLE, Plaintiff and Respondent, v. DOUGLAS LEVON DAWKINS, Defendant and Appellant.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kelly E. LeBel, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 1488209)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Ricardo Cordova, Judge. Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kelly E. LeBel, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant Douglas Levon Dawkins of robbing a Dollar Tree store manager who was placing the store's deposit into an outside bank drop box. The court sentenced him to an effective total term of 41 years to life: an indeterminate term of 25 years to life for the robbery conviction, based upon the "Three Strikes" law, with a consecutive determinate term of 16 years, composed of five years for each of three serious felony priors and a consecutive one year for one prison prior enhancement.
He appeals his robbery conviction arguing (1) the evidence was insufficient to support his conviction; (2) the trial court committed reversible error in permitting the investigating detective to offer opinion testimony comparing defendant's shoes and clothing to those seen in surveillance photographs; (3) he received ineffective assistance of counsel because his counsel failed to investigate and impeach his wife's testimony regarding his attire on the date of the robbery, and his counsel failed to investigate and offer a surveillance video from a bus that showed him wearing different clothing on the date of the offense; (4) the trial court erred in denying his new trial motion, which was based on alleged ineffective assistance of counsel; and (5) the cumulative effect of these errors resulted in a violation of defendant's right to due process. We reject each of those contentions. Defendant also filed supplemental briefing based on newly enacted Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393), which ends the statutory prohibition on the trial court's ability to strike a prior serious felony enhancement. He seeks remand to allow the trial court to reconsider sentencing in light of the new law, which allows it discretion to strike the five-year enhancements imposed for prior serious felony convictions.
We affirm the conviction and remand this matter for the trial court to set a resentencing hearing after January 1, 2019, to exercise its discretion regarding whether to dismiss the Penal Code section 667, subdivision (a) enhancements.
FACTUAL BACKGROUND
On the morning of June 1, 2015, Patterson Dollar Tree Store manager John Nanfria went to U.S. Bank to drop off the store's cash from the previous day. He had two bags of cash and walked to the depository. As he was opening the deposit box, someone yelled across the lot, "'Give me that deposit.'" Nanfria managed to put both deposits in and close the door. As he closed the door, the man who had yelled approached Nanfria. He shoved a gun into Nanfria's side and told him to get on the ground. The man then opened the depository "to see if it was there." He frisked Nanfria and yanked Nanfria's store keys off the belt loop of his pants before running away. Nanfria called 911 and within hours he had the whole Patterson Dollar Tree store rekeyed.
At trial, Nanfria identified a series of surveillance photographs as accurately depicting the events occurring on June 1, 2015. He identified a set of keys recovered from defendant's person as the store keys taken from him. According to Nanfria, the keys never leave his possession. He testified that all he saw of the perpetrator was his eyes because his face was covered with a black bandana. He estimated the robber was in his 20's, five feet eight inches tall, and weighed between 120 to 150 pounds. He further testified the surveillance video shown at trial accurately showed what occurred that day.
Defendant's wife, Belinda Allen, from whom he was separated, testified defendant arrived at her house around noon on the day of the robbery. Defendant was wearing jeans, a shirt, a black hoodie, and "black and green" shoes, which Allen identified in a photograph. Defendant also had a bag with him. Defendant then changed his clothes. The next day police contacted Allen and she gave them the clothes defendant had arrived wearing and left behind. Allen testified defendant used to work at the Dollar Tree store in Patterson but left in 2013 to work for the Dollar Tree store in Modesto. The trial court prohibited Allen from testifying regarding certain matters covered by the spousal communications privilege.
Detective Brian Carter testified he went to Allen's house on June 2, 2015, after receiving information defendant had been involved with the robbery. Allen told Carter defendant came to her house the previous day between 10:00 a.m. and noon. Carter testified Allen described what defendant had been wearing. She retrieved the items defendant had changed out of, including a "[b]lack hooded sweatshirt and a pair of Nike athletic shoes, kind of iridescent color change: Black, green, yellow, orange. Depends how you put them in the light, they kind of change." Carter noted the black hooded sweatshirt has a distinctive white tab on the front of the hood.
The prosecutor showed Carter photographs from the surveillance footage of the robbery and asked him to compare the perpetrator's clothing to those items retrieved from Allen.
"[PROSECUTOR]: Q. Showing you what we've previously introduced as Exhibit 17. [¶] Now, looking at that exhibit, is there anything that jumps out at you about the shoes the suspect is wearing?
"[DEFENSE COUNSEL]: Objection. Calls for opinion evidence.
"[PROSECUTOR]: He's previously compared the photographs.
"THE COURT: Rephrase. Sustained.
"[PROSECUTOR]: Q. Looking at this photograph, do you see what appears to be those shoes in those photographs?
"A. Yes.
"[DEFENSE COUNSEL]: Objection. Calls for opinion.
"THE COURT: Overruled.
"[PROSECUTOR]: Q. What—how do you recognize that conclusion [sic]?
"A. The color and shape. They can be seen in the photograph.
"Q. Can you describe them for the jury taking the laser pointer?
"A. The color of the sole, color of the top of the shoe, and then there's a shape here that's similar to this one here.
"Q. Can you describe how the shapes match?
"A. The lighter and darker colors and the oblong shape.
"Q. Would you mind turning the shoe towards the jury so the jury can see as well?
"A. (Witness complied.)
"Q. May I have the laser pointer?
"A. Sure.
"Q. On this video we have a light spot right about there?
"A. Correct.
"Q. Which corresponds with this spot here on the shoe?
"A. Correct.
"Q. And to the left on the shoe. This bottom shoe is oriented in the same way?
"A. Yes.
"Q. And there's shading here that appears to correspond; correct?
"A. Yes.
"Q. I would like to now move on to Exhibit 18, comparing that with the hoodie. [¶] The garment that the individual in the photograph is wearing is black; correct?
"A. Correct.
"Q. Do you recognize a white spot on the top of that garment in the photograph?
"A. I do.
"Q. Does that white spot appear to correspond to the hoodie?
"A. Yes, it does.
"[DEFENSE COUNSEL]: Same objection. Calls for opinion.
"THE COURT: Overruled.
"[PROSECUTOR]: Q. And that's the white spot there?
"A. Yes."
Carter testified at some point he contacted defendant at another Dollar Tree store where defendant was working. He arrested and searched defendant and found a set of keys on him. Defendant told Carter he slept at Golden Valley Health Center in Patterson, less than a mile from the scene of the crime, on the night before the robbery. Defendant reported going to the bus stop at 8:00 a.m. on June 1, 2015, to catch a bus to Modesto. He told Carter he then went to Allen's apartment to get some paperwork and dropped off clothes for her to wash.
Deputy Marissa Perez testified she was called to the scene of the robbery after it occurred. She noticed there were cameras, so she requested the surveillance footage and then she searched the rooftops around the area to find the weapon. She found a black replica gun with a laser taped on top on a rooftop across the street from the U.S. Bank, less than half a mile from Golden Valley Health Center. Perez was unable to retrieve footprints from the scene or fingerprints from the replica gun.
Defendant testified he was 47 years old, five feet ten inches tall, and weighed 205 pounds, noting he weighed 230 pounds on June 1, 2015. He denied robbing Nanfria. He testified, on the day the robbery occurred, he woke up and went to a restroom at a bus stop where he found a pair of keys in the right bathroom sink. He took them to the bus stop to see if they belonged to anyone, but no one claimed them. His bus arrived, so he put the keys in his pocket and boarded the bus to go to Modesto. Defendant admitted he changed clothes at Allen's house that day and the items Allen provided to police belonged to him, but he denied wearing those clothes and shoes on June 1, 2015. Instead, he testified he was wearing a pair of blue jeans, gray Nikes, an Oakland A's shirt, and an Oakland A's hat that day. He also noted he cannot run or jog because he broke his ankle in a previous vehicle accident.
The jury convicted defendant of robbery. As previously noted, the court sentenced him to an effective total term of 41 years to life. Defendant appeals.
DISCUSSION
I. Sufficiency of the Evidence
Defendant first argues the evidence was insufficient to support his conviction.
A. Standard of Review and Applicable Law
On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence "'is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.]" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) The reviewing court's task is to review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—evidence that is reasonable, credible, and of solid value upon which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Johnson (1980) 26 Cal.3d 557, 578.)
"The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence." (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) It is the jury, not the appellate court, which must be convinced of a defendant's guilt beyond a reasonable doubt. (Ibid.) If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (Ibid.)
We "presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (People v. Zamudio (2008) 43 Cal.4th 327, 357.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis ... is there sufficient substantial evidence to support"' the jury's verdict. [Citation.]" (Ibid.)
B. Analysis
Defendant argues the evidence was insufficient to prove beyond a reasonable doubt that he committed the robbery. He argues there was no direct evidence he committed the robbery, only "speculative connections" that are insufficient to establish his guilt. Thus, his conviction, based upon insufficient evidence, violated his constitutional right to due process. We disagree.
An appellate court must accept the logical inferences the jury might have drawn from circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396; People v. Fleming (2018) 25 Cal.App.5th 783, 789.) Where the defendant is in possession of recently stolen property taken in a robbery and that possession is corroborated, even slightly, by evidence tending to connect the defendant to the commission of the robbery, the trier of fact is permitted to conclude the defendant committed the robbery. (See People v. Mendoza (2000) 24 Cal.4th 130, 176, superseded by statute on another ground as stated in People v. Brooks (2017) 3 Cal.5th 1, 63, fn. 8.)
Here, the evidence established defendant was found in possession of Nanfria's stolen keys shortly after the robbery. In addition to being in possession of the stolen keys, defendant himself admitted to being near the bank where the robbery occurred on the morning of the offense. His wife testified defendant came to her house to change clothes shortly after the robbery occurred, and defendant left behind clothing and shoes that had identifiable characteristics matching those worn by the suspect in the surveillance video. Based on defendant's possession of stolen property and the corroborating evidence regarding his whereabouts and apparel on the date of the offense, the jury could have reasonably inferred defendant committed the robbery. (See People v. Rogers (2013) 57 Cal.4th 296, 335 [guilt of theft-related crime may be inferred where defendant is found in possession of recently stolen property when accompanied by slight corroboration of other inculpatory circumstances]; People v. Mendoza, supra, 24 Cal.4th at p. 176 ["When ... a defendant is found in possession of property stolen in a [robbery] shortly after the [robbery] occurred, the corroborating evidence of the defendant's acts, conduct, or declarations tending to show his guilt need only be slight to sustain the [robbery] convictions"]; see also People v. Mulqueen (1970) 9 Cal.App.3d 532, 542 ["'It is settled that when a person is shown to be in possession of recently stolen property slight corroborative evidence of other inculpatory circumstances which tend to show guilt supports the conviction of robbery'"]; People v. McFarland (1962) 58 Cal.2d 748, 754 ["Possession of recently stolen property is so incriminating that to warrant conviction there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his guilt"].)
Defendant notes law enforcement found no fingerprints or shoe prints at the scene or on the plastic gun, and Nanfria could not identify anyone as the perpetrator and offered a description not matching defendant's height and weight. But "[i]n deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts." (People v. Young (2005) 34 Cal.4th 1149, 1181.) Rather, "[r]esolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact." (Ibid.) Viewing the evidence in the light most favorable to the jury's verdict, we conclude it was sufficient to support defendant's robbery conviction.
II. Admissibility of Lay Opinion Testimony
Defendant next contends the trial court erred in admitting Detective Carter's lay opinion testimony comparing the clothing and shoes in the surveillance footage and photographs to defendant's shoes and clothing that Allen provided to police.
A. Standard of Review and Applicable Law
Evidence Code section 800 details the admissibility of lay opinion testimony: "If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: [¶] (a) Rationally based on the perception of the witness; and [¶] (b) Helpful to a clear understanding of his testimony." (Evid. Code § 800.)
Admission of a layperson's opinion testimony lies in the trial court's discretion and will not be disturbed unless a clear abuse of discretion appears. (People v. Brown (2001) 96 Cal.App.4th Supp. 1, 33; People v. Mixon (1982) 129 Cal.App.3d 118, 127.)
B. Analysis
Defendant argues Carter was not an expert in apparel or footwear recognition, and his lay opinion in comparing defendant's clothing and shoes to those seen in the surveillance photographs and video invaded the province of the jury to decide the facts. In support, defendant argues Carter did not have personal knowledge of him, his clothing, or shoe brands before the robbery. He distinguishes cases in which courts held admissible layperson testimony identifying a person depicted in a surveillance video as the defendant. (See People v. Leon (2015) 61 Cal.4th 569, 601; People v. Mixon, supra, 129 Cal.App.3d at pp. 130-132; People v. Perry (1976) 60 Cal.App.3d 608, 613-614.)
In those cases, the courts held lay opinion testimony concerning the identity of a robber portrayed in surveillance images is admissible where the witness has personal knowledge of the defendant's appearance at or before the time the photo was taken, and the witness's testimony aids the trier of fact in determining the crucial identity issue. (People v. Mixon, supra, 129 Cal.App.3d at p. 128; People v. Perry, supra, 60 Cal.App.3d at pp. 612-615; see also People v. Leon, supra, 61 Cal.4th at p. 601 [though detective did not have contact with defendant before crimes, he was familiar with defendant's appearance around time of crimes and "[q]uestions about the extent of [the detective's] familiarity with defendant's appearance went to the weight, not the admissibility, of his testimony"].) But here Carter did not identify the individual in the surveillance images as defendant. Instead, he testified regarding the similarities between the clothing and shoes seen in the surveillance footage and those collected from Allen.
California courts have held admissible an officer's testimony offering a visual comparison of evidence where the points of similarity are obvious, such as comparing shoe prints at a crime scene with a defendant's shoes. (See People v. Maglaya (2003) 112 Cal.App.4th 1604, 1608-1609 [trial court properly allowed officer to give lay opinion that shoe prints at crime scene matched defendant's shoes]; People v. Lucero (1998) 64 Cal.App.4th 1107, 1110-1111 [affirming admissibility of officer's lay opinion testimony comparing sole of defendant's shoe to shoe print at scene]; see also People v. Taylor (1935) 4 Cal.2d 495, 497 ["In those states where the subject has been considered, the trend of authority seems to be to the effect that by reason of the great practical differences between fingerprints and shoeprints, in that the shoeprints are so large and the points of similarity so obvious, the comparison of shoeprints is a matter of nonexpert rather than of expert testimony"].) In concluding such testimony was properly admitted, the Maglaya court noted "the officer did not testify that defendant's shoes made the prints at the scene of the crime.... Rather, he simply compared the tread on defendant's shoes with the prints in the dirt and testified they were 'similar.' This testimony was well within the competence of a lay witness and was helpful to a clear understanding of the officer's testimony." (People v. Maglaya, supra, at p. 1609.) Thus, the trial court did not abuse its discretion in permitting the officer's lay opinion testimony. (Ibid.)
Like shoe prints, the similarities commented upon by Detective Carter between the shoes and apparel depicted in the video and those given to him by Allen were "obvious" and thus a matter of nonexpert rather than of expert testimony. Such testimony was helpful to understanding Detective Carter's testimony. Consequently, we cannot conclude the trial court abused its broad discretion in permitting Carter's lay opinion testimony or that such evidence violated defendant's right to a fair trial.
III. Ineffective Assistance of Counsel
In his third issue, defendant argues his counsel was ineffective for failing to impeach Allen regarding the clothes and shoes he was wearing on the date of the offense.
A. Procedural History
After trial, defendant requested a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) in which he requested new counsel to assist him in preparing a motion for new trial based on ineffective assistance of counsel. He argued exculpatory evidence existed, namely, video footage from buses he rode to Allen's house on the date of the offense that showed him wearing an Oakland A's shirt and hat around the time of the robbery. He noted such evidence contradicted Allen's testimony that he arrived at her home in a hoodie. According to defendant, he had previously disclosed the existence of such bus video footage to his counsel.
Defense counsel acknowledged defendant had mentioned "there might be video outside of the bus station and anything like that, around there," but he was not told to ask about "specific bus cameras." He asked the prosecutor if there were any other videos available, and the prosecutor indicated there were none the officer was aware of after canvassing the area. Defense counsel noted he did not anticipate Allen would testify defendant was wearing the hoodie and shoes; but, regardless, the bus videos would not have changed the trial outcome because defendant could have been wearing the green shirt under his hoodie and taken the hoodie off before he boarded the bus. The court denied the Marsden motion, but instructed defense counsel to investigate the videotape to determine if it might form the basis of a new trial motion.
The court held a subsequent Marsden hearing during which defense counsel stated he had obtained the video footage from a morning bus from Patterson to Modesto on the date of the robbery. According to counsel, the video showed an African-American male in one of the seats wearing an Oakland A's hat and Oakland A's jersey, which defendant would have testified was himself. He can be seen carrying a duffel bag off the bus. Defendant explained the footage came from the 8:17 a.m. bus.
Defense counsel stated he would not have introduced the bus video at trial. He explained that he and defendant had two trial strategies going into the defense. The primary strategy they would have pursued if Allen had not testified was pushing the theory defendant "wasn't there at the robbery." Alternatively, if Allen testified, (as she did,) they intended to pursue the defense theory defendant "was there, but he wasn't the person involved in the robbery." Defense counsel stated he "never would have wanted this video anyway, because it would have basically eliminated [their] first defense that it wasn't him." Additionally, defense counsel had "concerns about the video being helpful given that it shows what appears to be [defendant], and there is, in fact, a shot or two where you can't rule out that it's the same shoes." He thought, at best, the video could have been used to impeach Allen about what defendant was wearing that day, though defense counsel asked that question anyway. Allen could have responded, "I don't know what he was wearing on the bus, but he was wearing this when he came to my apartment" or "maybe he wasn't wearing it" but, either way, it would not have helped. Defendant argued he told his counsel about the existence of the bus video before trial and made known his position that the video would have been physical evidence to counter Allen's testimony that he was dressed as the robber.
The court stated it understood defense counsel's strategy because the video would put defendant coming from Patterson, the location of the robbery, on the morning of the offense. Defendant noted he had testified he was in Patterson that morning.
The court granted defendant's Marsden motion because defendant and his attorney disagreed on the basis for his motion for new trial. The court appointed defendant new counsel who filed a motion for new trial on defendant's behalf. The motion for new trial did not challenge the previous counsel's effectiveness for failing to introduce the bus videos from the day of the robbery.
B. Standard of Review and Applicable Law
A defendant claiming ineffective assistance of counsel must satisfy a two-part test 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, at p. 689.) "The constitutional standard of performance by counsel is 'reasonableness,' viewed from counsel's perspective at the time of his challenged act or omission. [Citations.]" (People v. Gonzalez (1990) 51 Cal.3d 1179, 1243-1244, superseded by statute on another ground as stated in In re Steele (2004) 32 Cal.4th 682, 691.)
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.)
C. Analysis
Defendant argues the record reflects his counsel knew of the bus surveillance video from the date of the robbery that showed him wearing clothes different from those described by Allen and seen on the bank surveillance footage. He asserts "a reasonably competent attorney would have investigated ... the bus surveillance video" and "would also have attempted to impeach Allen's recount of what [defendant] was wearing when he arrived at her home sometime after the robbery—either through the bus surveillance video and/or law enforcement witness' testimony that Allen had told police [defendant] was not wearing the black hoodie." He contends if the jury had seen the bus videos, there was a great possibility and likelihood of a different outcome at trial. He also argues his new counsel was ineffective for failing to raise his previous counsel's failure to introduce the bus videos as a basis for his motion for new trial.
It is true that "a defense attorney who fails to investigate potentially exculpatory evidence, including evidence that might be used to impeach key prosecution witnesses, renders deficient representation." (In re Edward S. (2009) 173 Cal.App.4th 387, 407.) But, "'[t]he failure to impeach a witness or to object to evidence are matters which usually involve tactical decisions on counsel's part and seldom establish a counsel's incompetence.... "'In the heat of a trial, defendant's counsel is best able to determine proper tactics in the light of the [trier of fact's] apparent reaction to the proceedings. Except in rare cases an appellate court should not attempt to second-guess trial counsel....'"' [Citation.]" (People v. Barnett (1998) 17 Cal.4th 1044, 1140.) As the reviewing court, we will only reverse convictions for inadequate counsel if the record on appeal "affirmatively discloses that counsel had no rational tactical purpose for his act or omission." (People v. Fosselman (1983) 33 Cal.3d 572, 581.)
Here, counsel explained his tactical reasons for not impeaching Allen regarding what defendant was wearing on the date of the robbery with the bus surveillance footage. According to defense counsel, his initial trial strategy was to try to preclude Allen from testifying and argue there was no evidence defendant was present in the area on the date of the robbery; thus, video footage from a nearby bus would undermine that defensive theory. Alternatively, if Allen was permitted to testify, his strategy was to establish that though defendant was present, he was not the robber. Nothing in the record suggests defense counsel should have anticipated Allen would testify defendant was wearing a hoodie when he arrived at her house, particularly given her statement to police that he arrived in a shirt rather than a hoodie. Regardless, defense counsel challenged Allen's testimony regarding defendant's clothing on the date of the offense during cross-examination. Allen denied making a prior inconsistent statement.
"[DEFENSE COUNSEL]: Q. Ms. Allen, do you remember telling the police he wasn't wearing the hoodie when he came to your apartment that day?Counsel defended his strategy not to attack Allen's credibility any further, explaining he did not want to open the door to testimony excluded by the spousal communications privilege.
"A. No.
"Q. So your testimony now is that he was?
"A. Yeah. He was wearing it.
"Q. Did you make mention about him wearing an Oakland A's shirt and Oakland A's hat?
"A. No.
"Q. You never made mention of that to the police at all?
"A. No."
As the reviewing court, we must defer to counsel's reasonable tactical decisions and indulge the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. (See People v. Jones (2003) 29 Cal.4th 1229, 1254.) Based on this record, we cannot conclude defendant has overcome the strong presumption that defense counsel's conduct fell within the range of reasonable professional assistance.
Moreover, 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.) Here, even assuming deficient performance by trial counsel, the record does not demonstrate a reasonable probability that, but for defense counsel's failure to impeach Allen's testimony regarding the clothing defendant was wearing on the date of the robbery, the result of the proceeding would have been different.
The evidence against defendant was strong. The undisputed evidence established defendant was near the scene of the crime when it took place, he was found in possession of Nanfria's stolen keys the day after the robbery, he worked at Dollar Tree and thus arguably understood the significance of the keys that were taken, he went to Allen's house shortly after the robbery occurred with a duffel bag, and, whether or not Allen saw him wearing the black hoodie and the distinctive Nike shoes she provided to police, it was uncontested defendant left these items at Allen's house, they belonged to defendant, and they resembled those depicted in the bank's surveillance video. As defense counsel noted, had he introduced evidence contradicting Allen's testimony regarding what defendant was wearing that day—including either testimony from the investigating officer or the bus videos—the jury could still have concluded that defendant had brought the hoodie and shoes with him and left them at Allen's house, regardless of whether he was wearing them when he arrived. Additionally, to the extent the video depicted defendant in the distinctive shoes like those seen in the bank surveillance video, such evidence could in fact have harmed defendant's case by further connecting him to the images in the bank surveillance video. Thus, we cannot conclude there is a reasonable probability the result of the proceeding would have been different if defense counsel had impeached Allen's testimony regarding defendant's apparel on the date of the offense.
Defendant's reliance on People v. Frierson, supra, 25 Cal.3d 142 is misplaced. Frierson was a capital case in which counsel elected to present a diminished capacity defense at trial but failed to investigate the factual framework underlying the defense. (Id. at p. 164.) Defense counsel "admitted awareness of the possibility of developing a successful diminished capacity defense ... [but] neglected either to seek or obtain an expert appraisal of defendant's mental condition or of the effect of the drug PCP upon his physical and mental condition." (Id. at p. 163.) The California Supreme Court held incompetence was not demonstrated on the face of the appellate record, but it granted the defendant's petition for habeas corpus. (Id. at pp. 159-164.) It held counsel provided ineffective assistance by failing to investigate this sole potentially meritorious defense because it "resulted in the presentation to the jury of an incomplete, undeveloped diminished capacity defense." (Id. at p. 164.)
Unlike in Frierson, here defense counsel stated he inquired about the existence of relevant video footage before trial. There was a dispute as to whether he was aware of the existence of the specific bus video footage, but counsel eventually obtained such footage following the first Marsden hearing. After reviewing such evidence, he opined it would not have benefitted the defense and could potentially have been harmful by further connecting defendant to the offense. He explained he purposely limited his cross-examination of Allen to avoid opening the door to privileged communications. Incompetence is not demonstrated on the face of this appellate record, and we have already concluded there was not a reasonable probability such evidence would have affected the trial outcome. Frierson does not persuade us otherwise.
Defendant also contends his substitute counsel was ineffective for failing to raise and include the bus video evidence in his motion for new trial. However, because we conclude defendant has not established he was prejudiced by the failure to introduce such video evidence, we also cannot conclude his substitute counsel provided ineffective assistance of counsel by failing to raise it in the motion for new trial. (See Strickland, supra, 466 U.S. at p. 697.)
IV. Denial of Motion for New Trial
Defendant also argues the trial court erred in denying his motion for new trial based on alleged ineffective assistance of counsel.
A. Standard of Review and Applicable Law
A trial court has broad discretion when ruling on a new trial motion, and there is a strong presumption that it properly exercised that discretion. (People v. Fuiava (2012) 53 Cal.4th 622, 730.) A court's ruling will not be disturbed "'"'unless a manifest and unmistakable abuse of discretion clearly appears.'"'" (Ibid.)
A claim of ineffective assistance of counsel may be raised in a motion for new trial under Penal Code section 1181, even though it is not one of the statutorily enumerated grounds. (People v. Fosselman, supra, 33 Cal.3d at pp. 582-583.) When the trial court has denied a motion for new trial based on an ineffective assistance claim, we apply the standard of review applicable to mixed questions of law and fact, upholding the trial court's factual findings to the extent they are supported by substantial evidence but reviewing de novo the ultimate question of whether the facts established demonstrate a violation of the right to effective counsel. (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725.)
B. Analysis
In his motion for new trial, defendant argued he was denied a fundamentally fair trial because he received ineffective assistance of counsel. He argued his trial counsel was ineffective in failing to impeach Allen with her prior inconsistent statement regarding the clothing he was wearing on the date of the robbery. The court denied the motion for new trial, noting it believed defense counsel made a tactical decision in "not wanting to open up any issue with Ms. Allen." It held, regardless, the hoodie and unique pair of shoes were found in Allen's house, and the court did not think impeaching Allen with respect to her statements to police would have changed the jury's decision.
We have already rejected defendant's ineffective assistance of counsel claim and held that we cannot conclude but for counsel's alleged errors there was a reasonable probability the outcome of the trial would have been different. For the same reasons, we cannot conclude the trial court abused its discretion in refusing to grant a new trial based on alleged ineffective assistance of counsel and reject defendant's contention.
V. Cumulative Error
Defendant argues his robbery conviction should be reversed based on the cumulative effect of the errors he asserts in his first four arguments on appeal.
"Under the 'cumulative error' doctrine, we reverse the judgment if there is a 'reasonable possibility' that the jury would have reached a result more favorable to defendant absent a combination of errors. [Citations.] 'The "litmus test" for cumulative error "is whether defendant received due process and a fair trial."' [Citation.]" (People v. Poletti (2015) 240 Cal.App.4th 1191, 1216-1217.)
Here, there is no series of errors to cumulate. Accordingly, defendant cannot demonstrate the cumulative effect of the alleged errors resulted in prejudice. (See In re Reno (2012) 55 Cal.4th 428, 483 ["As noted, claims previously rejected on their substantive merits—i.e., this court found no legal error—cannot logically be used to support a cumulative error claim because we have already found there was no error to cumulate"].)
VI. Remand for Consideration of Senate Bill 1393
Senate Bill 1393, signed into law on September 30, 2018, amends Penal Code sections 667 and 1385 to provide the trial court with discretion to dismiss, in furtherance of justice, five-year enhancements imposed pursuant to section 667, subdivision (a)(1). (Stats. 2018, ch. 1013, § 1.) The new law takes effect on January 1, 2019. Both defendant and the People agree the law will be applicable to those parties, like defendant, whose appeals will not be final on the law's effective date. Accordingly, we remand this matter for the trial court to set a resentencing hearing after January 1, 2019, to exercise its discretion whether to dismiss the enhancements.
DISPOSITION
We affirm the conviction and the matter is remanded for resentencing.
/s/_________
PEÑA, Acting P.J. WE CONCUR: /s/_________
SMITH, J. /s/_________
DESANTOS, J.