Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F10428
NICHOLSON, J.
Defendant Christopher Johnderek Ellis and his brother Michael Ellis worked for a company called Calmetrics. The trial evidence showed that after defendant was fired, he kept a company-issued laptop computer, accessed the company’s security system to redirect security cameras so he would not be seen, then entered Calmetrics at night to steal another company laptop, and later he tampered with its computer system by deleting files.
A jury convicted defendant of grand theft, unlawfully accessing a computer and second degree burglary. (Pen. Code, §§ 487, subd. (a); 502, subd. (c)(1); 459.) The trial court granted defendant formal probation with eight months in jail, and defendant timely appealed.
On appeal, defendant contends the trial court should have granted his motion for a new trial. We disagree.
After defendant was convicted, he retained new counsel, Richard Dudek, who represents defendant in this appeal. Dudek filed a new trial motion, based on the alleged incompetence of Michael Melo, the attorney who represented defendant during the jury trial, specifically, that Melo had failed to introduce evidence supporting the brother’s culpability.
The evidence at the new trial motion largely consisted of the testimony of defendant and his wife, who testified that defendant’s brother had made incriminating statements, and that trial counsel knew about those statements. The trial court found that defendant and his wife lacked credibility. The trial court found there was no credible evidence defendant’s brother made inculpatory statements, Melo had been told about such statements right after the trial began, and what paltry evidence there might have been to support the brother’s culpability would not have changed the result at trial, given the strong evidence of defendant’s guilt on these charges.
We conclude the record supports the trial court’s ruling, and we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are convoluted, as are the procedures leading to this appeal. During trial, the court conducted an evidentiary hearing regarding the admissibility of Michael Ellis’s statement. (Evid. Code, § 402.) Some information revealed at that midtrial hearing is relevant to the posttrial motion for a new trial. To provide a factual context for the trial court’s rulings, we describe the People’s case, the midtrial hearing, the defense case, and then the new trial motion.
A. People’s Case
Steve Hechtman testified he owned two companies that shared a building, an engineering services company called Calmetrics, and a software company. The building is controlled by electronic “key fobs” that contain unique identifiers. There are keypads on the doors that require an access code to disable an alarm system, and the building has external and internal motion-triggered cameras connected to a computerized digital recording system.
Hechtman hired defendant to work at the company in January, 2006 as a control system specialist, that is, a person who could write computer software to make manufacturing systems work. When he was hired in January, defendant was told he could take time off in June to get married. On Friday, June, 2, 2006, the office manager told Hechtman that defendant had said he would be on vacation until Tuesday or Wednesday of the following week, but he had not filled out a required vacation form; ultimately, defendant was fired on June 14, 2006, as he had still not returned to work.
Defendant left Hechtman a message later that day and Hechtman instructed the office manager to tell defendant to come in to pick up his final check and turn in company property. Defendant’s brother, Michael Ellis, also worked at the company and was fired at the same time.
On June 15, 2006, Hechtman sent defendant an e-mail, again instructing him to return company equipment, including a laptop and a key fob, but said that if defendant was not comfortable coming in during business hours, “he could come in and just leave them on his desk.” An e-mail from defendant’s Hotmail account, purportedly from defendant in reply to the Hechtman’s e-mail, stated that defendant’s company-issued laptop and other items had been stolen.
Michael Ellis had the shared use of a company-owned Acer laptop and the company had issued defendant a Dell laptop. Later on June 15, 2006, Hechtman searched the offices and could not find the Acer laptop Michael Ellis shared, which made him suspicious. He checked the surveillance system, and found that around midnight, “the cameras were all turned down to the ground” and a couple of hours later, they were returned to their normal positions. The key fob issued to defendant had been used to open the back door, the upstairs door, and “enter the IT room.” Although there was no log showing defendant had been issued that key fob, there was camera footage of defendant using it on May 31, 2006, in the company of his brother.
The surveillance system can be accessed through a “VPN” or virtual private network, via the Internet. A person would have to know the 12-digit “IP” or Internet protocol address, and the correct user name and password to access the company’s computer system, and then know an additional IP address to access each camera.
A “VPN log” that could have determined what computer manipulated the cameras had not been set up at that time, but Hechtman activated it, and it showed that a computer using the name “Maverick” accessed the system at 11:11 p.m. on June 17, 2006, three days after defendant had been fired. Defendant’s company-issued Dell laptop had been named “Maverick.” After that, defendant’s “employee directory” and defendant’s project directories were missing from the company’s computer system. Michael Ellis’s directories were intact.
The laptop issued to defendant, “Maverick,” with its software, was worth about $7,500, and the Acer laptop shared by Michael Ellis was worth about $1,000 to $1,500, exclusive of software.
The office manager testified she had no idea where defendant was when he supposedly left on vacation that month, “we got to work and he wasn’t there, nobody knew where he was.” Eventually, on June 14, 2006, she left a message on his work cell phone telling him he was fired, to pick up his final check, and turn in his company-issued property. She saw a pair of khaki shorts in his office, which was unusual. She waited in the office late, after hours, in case he showed up, and the shorts were there when she left. But the next morning, the shorts were gone.
Detective Richard Gilleland testified he was a computer forensic examiner and that he searched the Dell laptop “Maverick,” seized at defendant’s house. He examined the index.dat file, which logs what Web sites the computer has accessed, “to look for evidence of remote access to other computers.” He determined the laptop had accessed a camera control system.
Travis Cox testified he was the “IT person” for the company, and has a computer science degree from UC Davis. While defendant worked at the company, he asked Cox to show him how to set up a camera surveillance system at his house like the one in the office, and Cox explained the system and gave defendant the program to record the footage “from an IP camera.” Defendant later demonstrated to Cox that he could access his home camera system from the office, which is the same way someone could access and operate the company’s cameras from the Internet, if they had the correct usernames and passwords. When the company realized someone had moved the cameras, Cox activated the VPN log, and then learned a computer named “Maverick,” located in Rocklin, accessed the company system on the night of June 17, 2006. Cox knew defendant lived in Rocklin. Other records showed that someone using defendant’s key fob entered the building, turned off the alarm around midnight on June 15, 2006, and entered the IT room. From that room, someone could have created a “temporary” login identification and could have turned off the VPN log and deleted the log files, but Cox did not know whether the VPN log had been turned on before then. A temporary login identification was used by a computer named “Maverick” to access the system on June 17, 2006.
Officer Matthew Nichols of the Sacramento Police Department testified he searched defendant’s Rocklin house pursuant to a warrant. He found the company’s Dell laptop, “Maverick,” on a table in the dining room. The defendant had previously reported to the Lincoln police that that “Maverick” had been stolen. Defendant later told Officer Nichols it may have been his girlfriend’s laptop that had been stolen, and said he did not know the name of his computer. He also said his company key fob had been taken with the stolen laptop.
Defense counsel asked whether Officer Nichols had investigated Michael Ellis, but relevancy objections were sustained. Counsel did elicit from Officer Nichols that the Acer laptop had been issued to defendant’s brother, Michael Ellis.
Apart from a desire to recall Travis Cox later to identify the laptop found at defendant’s house as a company laptop, the People rested at this point.
B. Evidence Code Section 402 Hearing
Outside the presence of the jury, the trial court addressed trial counsel Melo’s stated desire to have defendant’s wife, Leeanna Kamp, testify. Melo stated that he had interviewed Kamp the day before and had received from her a diary that Melo provided to the prosecutor that morning. Melo wanted to ask her about statements made by Michael Ellis. The trial court stated that he acquired a “clear understanding” during a chambers discussion on the prior Monday that Michael Ellis would be a witness, but now “for the very first time, you’re telling me that he is unavailable and you were not planning on calling him as a witness.” Melo agreed with the court. Michael Ellis never appeared in court during the trial.
The alleged statement by Michael Ellis could be deemed admissible against a hearsay objection if it were against his penal interest and if he was “unavailable” to testify. (Evid. Code, § 1230.) Under Evidence Code section 240, subdivision (a)(5), he could be found “unavailable” if he was “[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court’s process.” Under Evidence Code section 240, subdivision (a)(1), he could be found “unavailable” if he exercised a privilege, such as the privilege against self-incrimination. (See People v. Seijas (2005) 36 Cal.4th 291, 303.)
The proposed testimony by Kamp would be that late on the night of June 14-15, 2006, she came home to see Michael Ellis using a laptop, laughing. On the Monday of the pretrial chambers discussion, she had sent Melo a Blackberry message stating that Michael Ellis had admitted to her that he was guilty, and she told Melo she knew Michael Ellis’s whereabouts.
The trial court stated Melo would have to show Michael Ellis was legally unavailable within the meaning of Evidence Code section 240, and Melo proposed to have defendant testify as to diligence. Defendant testified his brother refused to testify or to say where he lived. Defendant testified, “I don’t believe until yesterday we had any reason to subpoena [Michael Ellis] until my wife discussed her statements.” By implication this suggests defendant had not known of the statement by Michael Ellis until his wife revealed it. Defendant also testified he called his brother five or six times in the past two days.
Melo argued Kamp should be allowed to testify to the statement Michael Ellis made because he was unavailable, and even if he had been found he would likely refuse to incriminate himself. In a passage emphasized by appellate counsel Dudek on appeal, trial counsel Melo stated:
“With regard to, you know, introducing this within the last 24 hours, I think, there may have obviously been some -- some serious lapses in judgment and probably quite a few mistakes made by the defendant’s counsel, myself, given this being my first jury trial. And I would ask the court to consider that and please not penalize the defendant for my shortcomings.”
Melo conceded, “I have left out some very important steps” to document “investigation and trying to hunt down this witness” but argued the evidence should be admitted.
The trial court ruled that Michael Ellis was not shown to be unavailable and Kamp could not testify to any inculpatory statements he purportedly made.
C. Defense Case at Trial
Kamp testified she and defendant were at her mother’s house in Fairfield on June 14, 2006, fell asleep on a couch, woke up around 2:00 a.m. and drove back home to Rocklin. When they returned home, Michael Ellis was there, using a laptop. She claimed that later on June 15, 2006, she used defendant’s Hotmail account and, pretending to be defendant, sent Hechtman an e-mail acknowledging that defendant was fired and stating that he would return any company property he had, but their car had been burgled and the laptop had been stolen. Kamp also testified she had a Dell laptop that was “[i]dentical” to defendant’s company-issued laptop “Maverick,” her laptop had been stolen while the car was parked at the Lincoln airport, but she mistakenly thought “Maverick” had been stolen. She claimed she realized the mistake and was preparing to mail “Maverick” to the company, but did not have time to do so before the police seized it.
Kamp’s already implausible story was further eroded on cross-examination. She admitted she had never told the police that defendant had been with her during the alleged burglary, never reported that she wrote the e-mail to Hechtman and never reported that the company-issued laptop had been found. She also never informed Calmetrics that the laptop had been found. She claimed that a lawyer named Ross Burton advised her not to reveal any of her information before trial -- two years after the events in question. She also admitted she did not know the make and model of her stolen laptop, only that it was a Dell computer, because, “I’m not that into computers.” She claimed she had another laptop she was using at the time -- a Mac -- and because she was not using her Dell she made “an honest mistake” about which one had been stolen. She testified she found the company’s Dell approximately one day after sending the e-mail to Hechtman on June 15, 2006, and defendant was arrested on June 20, 2006, but gave no reason for not telling the company that it had been found. And when defendant was arrested, before she spoke to Burton a month or two later, she did not tell the company about finding the laptop.
Defendant testified he was at his mother-in-law’s house in Fairfield on the evening of June 14, 2006, fell asleep on the couch until early the next morning, and returned home around 3:00 a.m., finding his brother awake, watching television and working on a laptop. Defendant testified that when he learned “Maverick” had not been stolen, he told his wife they should mail it back, but he was arrested before that happened. He testified “Maverick” and his wife’s laptop were identical models and colors. He denied entering the company building after being fired and denied accessing the company’s computer system.
On cross-examination, defendant testified he forwarded Hechtman’s e-mail to his wife for reply. He did not call the company when he learned he had “Maverick.” He also testified “Maverick” was on the table, but he did not turn it on to see which of the supposedly identical laptops it was, and did not learn he still had “Maverick” until Friday, June 16, 2006. The police searched his house the following Tuesday. Defendant admitted he bought the same camera surveillance system used at Calmetrics, except his was wireless. He testified his key fob “went missing sometime after June 1st” and he thought nothing about it after he was fired until the arresting officer asked about it. When he arrived home early on the morning of June 15, 2006, the laptop his brother was using was not “Maverick.”
D. Argument and Verdicts
The People argued defendant was mad about being fired, retained the Dell laptop issued to him by the company, (grand theft), entered the building to steal the Acer laptop issued to his brother (burglary) and then deleted company computer files (unlawfully accessing a computer). The People argued defendant’s wife’s story lacked credibility, in particular because she never told her story in the two years before trial, and if she had had knowledge defendant was innocent, she would have spoken up sooner. The defense argued the People had not proven defendant used the key fob or accessed the company computers, someone with his computer knowledge would not have been so “dumb” to forget about the electronic trails the key fob and computer would leave, and the demeanor of defendant and his wife showed they told the truth.
The jury convicted defendant as charged.
E. New Trial Motion
As stated, defendant retained Richard Dudek to represent him for the new trial motion and appeal. The new trial motion was based on two theories: First, trial counsel Melo had been incompetent; second, there was newly discovered evidence. The latter theory is not pursued on appeal.
The new trial motion acknowledged that defendant’s “card key was used to enter the building and a computer with the same user ID as one issued to [defendant] was used to breach the company’s security surveillance system. The IP address for the computer used was traced back to an area in which both defendant and his brother lived. Items taken from the entry included an Acer laptop issued to Michael Ellis and a pair of shorts located in [defendant’s] work area.” Melo had listed Michael Ellis as a potential witness, and tried unsuccessfully to introduce an out-of-court statement Michael Ellis made, but the trial court found Melo had not been diligent in securing him for trial and therefore ruled he was not “unavailable” for purposes of allowing his statement into evidence. The motion asserted that although Michael Ellis would appear at the hearing, he would testify that he had been available during trial, but he would also assert his privilege against self-incrimination as to the charges. Defendant’s wife would also testify to admissions made by Michael Ellis.
In opposition, the People in part noted the suspicious circumstances of the diary entry recording Michael Ellis’s inculpatory statement, specifically, that it was not produced or mentioned during the two years between defendant’s arrest and the beginning of trial.
Three witnesses testified at the new trial hearing, Michael Ellis; defendant’s wife, Leeanna Kamp; and defendant.
Michael Ellis testified he had worked for Calmetrics and was not in hiding during the period leading up to the trial, but had been living at a particular address in Roseville. He refused to answer other questions.
Kamp testified that on June 15, 2006, she heard Michael Ellis tell defendant that he had accessed the company’s cameras, entered the building, taken his company-issued Acer laptop, and “then remotely moved the cameras back.” However, during the midtrial hearing, she indicated Michael Ellis had made incriminating statements to her. She told Ross Burton, whom she described as Melo’s employer, about this information within a couple of months of defendant’s arrest, and also told Melo this, in defendant’s presence. She later learned that Burton was not a lawyer. Under questioning by the court, she testified defendant had been present when she told Burton this, as well.
Defendant testified that on June 15, 2006, his brother told him “he had determined a way to remotely move the cameras” at the company. In his testimony he indicated that at a court hearing he had been told, presumably by Melo, not to mention his brother’s statement. He did not mention this statement when he was arrested. Defendant claimed he never spoke with his wife or his brother about the statement.
Attorney Melo did not testify or provide a declaration, nor did new counsel, Richard Dudek, offer any explanation for this omission, except to argue that the record showed incompetence.
The prosecutor argued that the fact Melo could not show Michael Ellis was unavailable did not show Melo was incompetent, Michael Ellis’s statement, as described by Kamp in conflicting ways, was unreliable, and the result at trial would have been the same even if it had been introduced. In particular, the prosecutor argued the jury had rejected Kamp’s alibi testimony, and, consequently, it was not likely the jury would believe her belated story about Michael Ellis’s statement.
The trial court found defendant and his wife lacked credibility. It also found Michael Ellis had never been unavailable. The trial court concluded Melo had not been told about Michael Ellis’s alleged inculpatory statement until he received Kamp’s Blackberry message during trial -- as Melo represented to the court at the midtrial hearing -- and therefore he did not act incompetently. Finally, the trial court ruled Michael Ellis’s alleged statement, as described by Kamp, was unreliable and would not have changed the result because the jury rejected Kamp’s alibi testimony and would not have believed her testimony that Michael Ellis admitted the crimes. The trial court denied the motion because defendant had not shown incompetence of trial counsel or newly discovered evidence.
DISCUSSION
Defendant contends his new trial motion should have been granted based on incompetence of trial counsel.
A trial court must grant a new trial if a criminal defendant shows his trial counsel was incompetent, that is, trial counsel acted below accepted professional norms and the mistaken actions or omissions caused prejudice. (People v. Fosselman (1983) 33 Cal.3d 572, 582-584; 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Judgment, § 110, p. 141.)
On appeal from the denial of a new trial motion, the trial court’s factual findings will be upheld if supported by the record, but the trial court’s legal conclusions are reviewed independently. (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725.) However, we review the ruling with deference to the trial court’s discretion. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 127; People v. Andrade (2000) 79 Cal.App.4th 651, 659 (Andrade).)
To show incompetence of counsel, defendant had the burden on the new trial motion to show trial counsel acted below professional norms and that his failings caused prejudice. (People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) On this record, defendant cannot show either element of his claim.
As for professional competence, defendant argues his trial counsel, Melo, should have investigated evidence of third party culpability, subpoenaed Michael Ellis to testify, and when Michael Ellis declined to testify, should have been prepared to introduce his out-of-court inculpatory statement as a declaration against penal interest.
But the trial court found defendant and Kamp lacked credibility, and disbelieved their story that they had told Melo about Michael Ellis’s statement, until Kamp sent Melo a Blackberry message during trial. It surely occurred to the court that if defendant and Kamp had already told counsel about the statement, why did Kamp bother to send such a message during trial? The trial court had ample grounds to reject the new trial testimony and conclude Melo had never been told about the statement until trial, when it was too late to take appropriate steps to have it introduced.
On appeal defendant emphasizes Melo placed the blame on himself. Even so, that does not show he acted below professional norms when his client’s wife belatedly revealed purported exculpatory information. The trial court was in the best position to ascertain whether, on the facts found, Melo erred, and thus was incompetent. We see no reason to disturb its finding. (Andrade, supra, 79 Cal.App.4th at p. 660.)
In conducting a new trial hearing, a trial court must weigh the strength of the evidence presented, in order to evaluate whether trial counsel’s alleged failings caused prejudice. A trial court is entitled to consider the weight of the evidence, including its sufficiency, in determining whether it would have made any difference at trial: “‘[T]he trial court may consider the credibility as well as materiality of the evidence in its determination [of] whether introduction of the evidence in a new trial would render a different result reasonably probable.’” (People v. Delgado (1993) 5 Cal.4th 312, 329; see People v. Avila (2004) 117 Cal.App.4th 771, 782.)
Nor can defendant show prejudice from any alleged error by Melo regarding Michael Ellis’s purported statement. Because the jury disbelieved the alibi story, supported by testimony from defendant and his wife, there is no reason to think the jury would have believed, from the same two sources, that two years before trial Michael Ellis had confessed but neither defendant nor his wife told anybody. Their trial testimony about having mistaken “Maverick” for an identical laptop that had conveniently been stolen, the fact defendant’s computer files were deleted from the company’s computer system by “Maverick,” and the fact that defendant had been instructed by a company employee how to access the camera surveillance system, made the third-party culpability claim implausible.
Defendant emphasizes his brother, Michael Ellis, had also been fired the same day he was fired, and the Acer laptop issued to Michael Ellis had been stolen. None of that bolsters incredible evidence about Michael Ellis’s alleged inculpatory statement, nor weaken the strong evidence of defendant’s guilt.
We may not disturb the trial court’s sound conclusion that the concocted testimony by both Kamp and defendant that Michael Ellis had admitted the crimes would not have made any difference to the jury. Accordingly, we may not disturb the trial court’s ruling denying the new trial motion. (See Andrade, supra, 79 Cal.App.4th at p. 660.)
Pursuant to this court’s miscellaneous order No. 2010-002, filed March 16, 2010, we deem defendant to have raised the issue (without additional briefing) of whether amendments to Penal Code section 4019, effective January 25, 2010, apply retroactively to his pending appeal and entitled him to additional presentence credits. As expressed in the recent opinion in People v. Brown (2010) 182 Cal.App.4th 1354, ___ [p. 24], we conclude that the amendments do apply to all appeals pending as of January 25, 2010. Defendant is among the prisoners entitled to the additional accrual of credit. (Pen. Code, § 4019, subds. (b)(1) & (c)(1); Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50.) Consequently, defendant, having served 65 days of actual presentence custody, is entitled to 64 days of conduct credits, instead of the 32 days awarded under the prior credit formula. (See Pen. Code, § 4019, subds. (b), (c) & (f); People v. Marquez (2003) 30 Cal.4th 14, 25-26 [rounding up not permitted].) The judgment (order granting probation) is modified to award defendant 65 days of actual custody and 64 days of conduct credits.
DISPOSITION
The judgment (order granting probation) is modified to award defendant 65 days of actual custody and 64 days of conduct credits. As modified, the judgment (order granting probation) is affirmed. The trial court is directed to prepare a new probation order reflecting this modification.
We concur: SIMS, Acting P. J. RAYE, J.