Opinion
D056935 Super. Ct. No. SCD216920
10-18-2011
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL CRAIG DICKMAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Kerry Wells, Judge. Affirmed.
A jury convicted Michael Craig Dickman of four out of five charged counts of robbery (Pen. Code, § 211), acquitting him of one count. In bifurcated proceedings, the court found true enhancement allegations that he had suffered a serious felony prior conviction under section 667, subdivision (a)(1) and a strike prior under section 667, subdivisions (b)-(i). The court sentenced him to 25 years to life in state prison plus a consecutive determinate term of 15 years.
All statutory references are to the Penal Code unless otherwise stated.
Dickman contends the trial court erroneously denied his claim under People v. Marsden (1970) 2 Cal.3d 118 (Marsden)and improperly declined to hold a hearing on a subsequent Marsden motion. Dickman further contends his attorney provided constitutionally ineffective assistance. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The factual basis for Dickman's bank robbery convictions in counts two through four inclusive, are not relevant to the issues on appeal. We limit the facts to those regarding count five, the robbery at Washington Mutual Bank on Ruffin Road in San Diego, California, and set them forth in the light favoring the judgment because Dickman does not challenge the sufficiency of the evidence to support the conviction. (People v. Miramontes (2010) 189 Cal.App.4th 1085, 1090.)
Monique Holmes, a Washington Mutual Bank teller, identified Dickman in court and testified he entered the bank the morning of July 21, 2008, as she was getting organized to attend customers. Replying to the prosecutor's question regarding whether she had cleaned her station, Holmes replied, "[W]hen I came in, I probably did clean my teller station. I don't recall exactly, but I took my time setting up since it was my first day back from vacation. So I probably did rearrange things and clean things since there was somebody there working at my station while I was gone." She stated that if she had cleaned the counter, she would have used "Lysol wipes."
Dickman went to her station and placed two deposit bags on the counter and put in front of her a handwritten note stating something like, "give me all your money," and "no dye packs." He pointed to what appeared like a weapon in his waistband and asked her if she knew what it was. She replied affirmatively and he said, "Don't do anything stupid or I will use this." After she gave him $4,344 from her top drawer, he asked her to open the bottom one. She told him no money was there, and he said, "Let me see." She showed him, and he exited the bank.
Holmes was approximately two feet from Dickman during the incident, and saw he wore a wig, fake mustache, tinted glasses and a cap. Holmes was unable to identify Dickman in a photographic lineup, but she identified him in a live lineup after she heard him read a phrase and saw his eyes. She testified, "The most helpful thing was to hear [those in the live lineup] . . . read their statement as well as having the disguise on them." She added, "I remember when I was being robbed, I paid attention to [Dickman]. I tried to look at him as much as I could because I knew that was going to be important later. So I kind of just . . . tried to keep it in my memory as best I could. . . . I tried to look into his eyes. And when we did the lineup, I was able to recall back what I had seen back in July of [2008] to what I was seeing right there in front of me at the lineup."
On August 12, 2008, Dickman was arrested and the police found in his vehicle a duffel bag, a black costume wig, several zippered bank pouches, a pair of sunglasses, a baseball cap and a demand note stating, "No dye packs. No tracking device. No one gets hurt. I check before I go."
David Cornacchia, a San Diego Police Department criminalist, analyzed fingerprint evidence and DNA from the Washington Mutual Bank counter and determined the quantity of DNA found was small and represented a mixture from four different individuals. Cornacchia asserted that was unsurprising because many people have relatively brief contacts with a bank counter surface. Dickman was excluded as a contributor of both fingerprint evidence and the DNA.
On the last day of trial, Dickman brought a Marsden motion and, in proceedings outside the presence of the prosecutor, prefaced his motion with: "I'm not unhappy with representation except for one issue . . . and I don't bring this up lightly because the last thing obviously I want to do on the last day of trial is to antagonize my attorney. And as I said, I'm not displeased. My representation has been good." Dickman explained it was important for the jury to know the DNA collected from the counter was predominantly from an unknown male. He argued that because Holmes had cleaned the counter with Lysol disinfectant; there was a strong likelihood the robber, who was the first person at the counter, would be the predominant DNA contributor to the clean counter. He told the court that since Cornacchia's report was not in evidence, it was necessary to get additional testimony from Cornacchia regarding Dickman's exclusion as a DNA contributor.
Dickman's counsel explained to the court that she had met with Cornacchia before his testimony, and he had explained to her that he could not testify about the counter cleaning. Dickman's counsel noted Cornacchia's testimony was significant in excluding Dickman as a DNA contributor.
The court told Dickman, "That [DNA] evidence is before the jury, and that's a matter of argument by your counsel." It denied the Marsden motion, ruling, "[If] this is the nature of a Marsden hearing, which it doesn't exactly sound like it is, which is to argue to the court . . . a view that your counsel was incompetently representing you and you're entitled to another counsel, you clearly haven't established that. In fact, you've indicated you're not displeased with her representation."
In closing argument, Dickman's counsel noted the People proffered no forensic evidence linking Dickman to the crime. Alluding to Holmes's testimony, defense counsel stated: "And so I asked each of the tellers about their cleaning habits. Some of them, as a matter of fact, told you, 'Well, it's the day I got back from vacation. I took out the Lysol. I scrubbed that down . . . .' So would you expect to find something there? Yes you would. It wasn't, no, we never get fingerprints. What you heard is we didn't get any fingerprints belonging to Michael Dickman. That's what you heard. [¶] Same thing with the DNA." Defense counsel added, "First customer, boom, it's a robber. DNA swab, mixture of four or more persons. Michael Dickman is excluded. Excluded. That's pretty significant evidence."
DISCUSSION
I.
A.
Dickman contends, "If the jury had been told that the major [DNA] contributor was an unknown male, other than [Dickman], the outcome probably would have been different. The jury knew the counter had been cleaned with disinfectant the morning of the robbery. It also knew the robber was the first person to touch the teller counter surface after it had been cleaned. The teller described that person as a male. From this evidence, the jury easily could have concluded that the unknown male who first touched the counter was the robber and, since the same DNA evidence excluded [Dickman], the unimpeachable scientific evidence rendered the eyewitness identification evidence incorrect."
We conclude that the trial court did not abuse its discretion in denying Dickman's first Marsden motion. The trial court, as it was required to do (People v. Memro (1995) 11 Cal.4th 786, 857) permitted Dickman, at the hearing on the motion, to explain the basis of his motion and solicited his objective reasons for seeking a new attorney and analyzed them before denying the motion. "Marsden requires no more." (People v. McElrath (1985) 175 Cal.App.3d 178, 184.)
Further, there was no basis for removing Dickman's attorney, as Dickman admitted his representation had been good. As the court pointed out, Dickman's attorney had already cross-examined Cornacchia regarding Dickman's exclusion as a DNA contributor. The jury knew the DNA found on the counter came from someone else. But contrary to Dickman's assertion, no evidence in the record indicates the sex of any unidentified DNA contributor. Finally, the fact the DNA and fingerprint evidence excluded him as a contributor, while highly favorable to his case, did not dispositively exonerate him or conclusively prove that the major contributor of the DNA was in fact the robber.
B.
Dickman brought a second Marsden motion at the sentencing hearing in this exchange:
"[Dickman's counsel:] . . . [Dickman] needs sort of in a context of a Marsden hearing is probably the best way I could put it."
"The Court: Is he making a Marsden — You know what a Marsden hearing is, Mr. Dickman? Are you asking that your counsel be relieved?
"[Dickman:] [If] my counsel is unable to proceed with what I would like to proceed with, then the answer would be yes."
The trial court held a hearing outside the presence of the prosecutor, and Dickman moved for a new trial. The court ascertained Dickman had discussed a new trial motion with his counsel, who disagreed with Dickman about its merits. The court told Dickman, "I haven't heard right now a ground to relieve [your counsel] other than you have a disagreement regarding tactics. But since she's agreeable to let you be heard in open court regarding this issue and that's what you want to do I will do that. And that's agreeable with you; is that correct?" Dickman replied, "Perfectly."
Dickman proceeded to request a new trial, arguing, "My contention is that if the jury had known that there was another suspect supported by direct evidence reasonable doubt would have existed and the jury would have had to found [sic]me not guilty of at least count five [the robbery at Washington Mutual Bank]. If that's the case I must also be found not guilty of counts two, three and four."
The court clarified that Dickman's new trial motion was brought on the same ground as his first Marsden motion, reviewed Cornacchia's trial testimony, and denied the motion, ruling, "I think that my analysis of this issue is the same as it was previously. . . . [Dickman's] lack of DNA on [the counter] was the evidence that was relevant. That was introduced, and that was thoroughly argued by counsel and to the jury."
Analysis
The trial court found that Dickman differed with his trial counsel regarding his desire to bring a new trial motion against his counsel's advice, and therefore the court permitted Dickman to make his new trial motion in open court. Dickman does not challenge the denial of the new trial motion; rather, he claims he did not get a Marsden hearing. But he did get one, albeit an abbreviated one. The trial court quickly recognized that the new trial motion was brought on no different ground than Dickman's first Marsden motion. Having concluded it had properly denied that Marsden motion, the trial court found no basis for revisiting the issue of the cross-examination of Cornacchia. We have concluded the court did not err in denying the first Marsden motion. Accordingly, because the court gave Dickman an opportunity to explain his dispute with his counsel in the second Marsden hearing, in which Dickman raised identical grounds as the first Marsden motion, we conclude the court did not abuse its discretion in denying the second Marsden motion, especially in light of the court's decision to permit Dickman to bring his own new trial motion.
II.
Dickman contends he was denied his constitutional right to effective assistance of counsel because his trial attorney failed to cross-examine Cornacchia regarding the DNA evidence, which identified an unknown male, other than Dickman, as the predominant contributor.
Dickman concedes his counsel "specifically argued that both the fingerprint evidence and the DNA evidence excluded [him]. And admittedly, these arguments tempt the conclusion there were no defects in the defense chosen." Nevertheless, Dickman also claims that because his defense was misidentification, additional cross-examination of Cornacchia was crucial to his case. He explains that even if Cornacchia was unfamiliar with the particular disinfectant wipes Holmes used, he could have testified about the "relationship between the cleanliness and type of a surface and the deposit of DNA based on his experience with development of DNA deposits." He continues, "While the jury knew there were four contributors and [he] was excluded, such evidence did not exclude [him] from liability for the robbery. The jury easily could have concluded that [he] touched the counter without leaving a DNA deposit. However, the additional indisputable information, that an unknown male was the primary contributor to the sample from the teller counter changed the calculus."
Dickman asserts, "The omitted evidence squarely challenged the validity of the eyewitness identification evidence in count 5. Since the evidence in one count could corroborate the evidence in another, and vice versa, the omitted evidence likewise provided a basis for acquittal in the remaining counts of conviction."
"To establish ineffective assistance, defendant bears the burden of showing, first, that counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms. Second, a defendant must establish that, absent counsel's error, it is reasonably probable that the verdict would have been more favorable to him." (People v. Hawkins (1995) 10 Cal.4th 920, 940, disapproved on another point in People v. Lasko (2000) 23 Cal.4th 101, 110.)
A reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 687; In re Andrews (2002) 28 Cal.4th 1234, 1253.) It is not necessary to determine whether counsel's challenged action was professionally unreasonable in every case, however. If the reviewing court can resolve the ineffective assistance claim by first deciding whether there is a reasonable probability that the outcome would have been different absent counsel's challenged actions or omissions, it may do so. (Strickland, supra, 466 U.S. at p. 697.)
Having concluded, in the context of Marsden, that Dickman suffered no prejudice from his counsel's decision not to cross-examine Cornacchia further regarding an unknown male DNA contributor, we conclude Dickman has not shown prejudice to sustain an ineffective assistance of counsel claim. Once again, as the People state in their reply brief, there is no evidence indicating the sex of the unidentified DNA contributor.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.