Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA309005, Luis A. Lavin, Judge. Affirmed.
Richard L. Rubin, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Rudolph Ellis (Ellis) was convicted of the first degree murders of Joseph Cannon and Larry Harris (Pen. Code, § 187, subd. (a)), and the jury found true the allegations he personally used a firearm in the commission of the murders (id., § 12022.53, subd. (d)). The jury also convicted him of assault with a firearm on Edward Goldsmith and S.H. (id., § 245, subd. (a)(2)) and found true the allegations he personally used a firearm in the commission of the assaults (id., § 12022.5, subd. (a)). The jury found true the allegations that all the crimes were committed for the benefit of a criminal street gang (id., § 186.22, subd. (b)(4)). The trial court sentenced him to a determinate state prison term of 20 years and 8 months, plus a consecutive indeterminate term of 120 years to life, for a total term of 140 years and 8 months to life.
Ellis appealed, raising a number of issues, including denial of his Marsden motions and sentencing errors. We reversed the judgment (People v. Ellis (Oct. 22, 2009, B206794) [nonpub. opn.]) and remanded the matter for the limited purpose of holding a hearing on Ellis’s posttrial Marsden motion. We ordered that if Ellis made a prima facie showing of ineffective assistance of counsel, new counsel was to be appointed for the purpose of bringing a new trial motion. If he failed to make a prima facie showing, the trial court was to reinstate the judgment with a modification to the sentence. The trial court found Ellis failed to make a prima facie showing and denied his Marsden motion. It sentenced him to an indeterminate term of 100 years to life plus the determinate term of 20 years and 8 months.
People v. Marsden (1970) 2 Cal.3d 118.
Defendant was tried with a codefendant, Tony Devone Call (Call). Call was convicted and appealed his conviction, which we affirmed with modifications in our prior appeal. Call is not a party to this appeal.
The facts are set forth in detail in our prior opinion. We summarize them here.
A. Prosecution
1. Attempted Murder of Milo New
Ellis was charged with the attempted murder of Milo New but was acquitted on that count.
On the evening of December 11, 2005, Milo New (New) was walking near 51st Street and Central Avenue. A man wearing a hooded garment fired three shots at him. New believed that Ellis was the man who shot at him.
2. Murder of Larry Harris and Assault on S.H. and Edward Goldsmith
Call’s son was killed in gang violence. On the morning of his funeral, January 27, 2006, Larry Harris (Harris) was driving his daughter, S.H., to school. Harris and a passenger, Edward Goldsmith (Goldsmith), were rival gang members. While they were stopped at a red light, gunshots hit the car, and Harris was killed.
Goldsmith identified Ellis as the shooter. Goldsmith also said after the shooting, someone told him that “Rudy” was looking for him, and Ellis’s wife told him that Ellis did not do anything.
3. Murder of Joseph Cannon
On the afternoon of September 2, 2006, Joseph Cannon (Cannon) told his friend, Joshua Montoya (Montoya), that “Rudy” and another man had “banged on” him. Shortly after that, Montoya saw Ellis confront and shoot Cannon.
Larry Clark (Clark) was asleep in his room when he was awakened by the sound of gunfire coming from the street below. He looked out the window and saw a man shoot Cannon. He identified Ellis as the shooter.
Pedro Guerrero (Guerrero) was in his apartment when he heard gunshots. He looked out his window and saw a man shoot Cannon. Guerrero identified Ellis’s hairstyle as similar to that of the shooter.
New heard the gunshots and looked out his window. He saw a man running down the street while tucking a gun into his waistband. New thought he recognized the man as “Rudy, ” whom he knew from a prior confrontation. New later identified Ellis as the man who had shot at him in December and the man who had shot Cannon.
B. Defense
Ellis lived with his mother, Annette Davis (Davis), in Buena Park. At about 8:10 on the morning of January 27, 2006, they went to the funeral of Call’s son, who was Davis’s nephew. The funeral started just before 10:00 a.m. Ellis remained at the church the entire time and then went with the family to the cemetery.
September 2, 2006 was Ellis’s daughter’s birthday. At about 11:00 a.m., Ellis took his daughter to buy an outfit for her birthday. They returned about 12:00 p.m., and Ellis helped set up for the party. He stayed at the party until sometime between 5:00 and 6:30 p.m., when his brother-in-law took him to Staples Center.
PROCEDURAL BACKGROUND
In our prior opinion, we gave the history of Ellis’s conflicts with his attorney as follows:
“Prior to trial, on July 16 and August 14, 2007, Ellis made two Marsden motions to replace his court-appointed attorney, Leo Newton. He complained that his attorney was not sufficiently preparing for trial, was not conducting an adequate investigation, had missed court appearances, had not spent enough time communicating with him to learn his side of the events, and had not returned telephone calls from him and his family members. On August 14, Mr. Newton responded that he had hired an investigator to conduct an investigation of the case. He explained that he had his investigator speak to family members unless they were going to be witnesses at trial. He reviewed the steps he had taken in preparation for trial and also showed the trial court his case file, to demonstrate the extent of his preparation. The trial court denied the motions, but it invited Ellis to renew his motion on August 27 if he remained unsatisfied with Mr. Newton’s representation.
“On August 27 at a status conference before Judge Haynes, Mr. Newton requested a continuance to October 17 to attend to a critically ill family member on the East Coast and to give his investigator time to interview additional witnesses. Call objected to a continuance. Judge Haynes denied the request for a continuance and trailed the matter for a week until Judge Lavin, the trial judge, returned.
“At that point, Ellis caught the judge’s attention. He began, ‘I wanted to try and have another motion. Hearing or....’ Judge Haynes interrupted and stated: ‘All right. This man is doing your alibi witnesses, and you want to have—we’re getting ready to go to trial. And you want to kick him out. Is that you—you just had a Marsden hearing. [¶] Tell Judge Lavin about it next week.’
“Ellis did not renew his motion before Judge Lavin prior to trial. After trial, at the sentencing hearing on March 5, 2008, Mr. Newton made a motion for a new trial based on the due diligence findings as to the unavailable witnesses. The trial court denied the motion.
“After a discussion on sentencing considerations, Ellis told the court: ‘I want to object to what [Mr. Newton] was telling you because I feel it’s a conflict what he’s saying. I totally disagree on what he’s filing a motion for retrial. And I need another attorney. I might need till the 18th to put in my motion. I’m putting in a motion for ineffective assistance of counsel....’ If the trial court was not going to allow that, he would go pro. per. and make the motion himself. He did not agree with anything Mr. Newton put in his new trial motion.
“The trial court explained that Ellis could raise the issue of ineffective assistance of counsel on appeal and asked if he had anything to say regarding sentencing. Ellis responded that he wanted to make a motion for retrial, not sentencing. He stated: ‘... I feel you’re going back on my constitutional rights. I’m not even being heard on the simple fact that I didn’t get to put in a motion that I want to put in. He put in a motion he wants to put in by himself.... [¶] He’s basically just coming in here saying that he wants it because of certain witnesses.... That’s not why I want a retrial. I want a retrial because of Mr. Newton.... He’s totally not helping me at all. He’s trying to send me to the penitentiary, and I got something—I got something else in store to prove my point to the fact being that he was ineffective since he’s been my attorney.’
“The trial court asked Ellis to clarify whether, for purposes of sentencing, he wanted to represent himself or he wanted Mr. Newton replaced. Ellis reiterated that he wanted to continue sentencing so that he could find another attorney to move for a new trial based on ineffective assistance of counsel. The trial court explained that he could raise the issue of ineffective assistance of counsel on appeal, for which another attorney would be appointed. Ellis then stated that ‘[f]rom here on out, I want to go pro per.’
“The prosecutor requested that the court inquire as to whether Ellis was ready to proceed with sentencing at that time. The court told Ellis that it could not grant a new trial based on ineffective assistance of counsel. It told him it was going to proceed with sentencing and tried to find out if he was ready to represent himself. Ellis interrupted and asked if that meant he would have to explain all the reasons why he wanted a new trial and whether the court was going to allow him to exercise his rights, go pro. per. and have time to prepare to make a showing why he wanted a new trial.
“The trial court repeated that it was not going to hear a motion for new trial based on ineffective assistance of counsel. It told Ellis that following sentencing it would advise him of his appellate rights. It then asked him whether he wanted to represent himself and address the court regarding sentencing. He repeated: ‘I’m saying I don’t have the right type of paperwork and things I need to go over my case right now in order for me to come in here and tell you I want a retrial.[’]
“The trial court told him he could get transcripts for purposes of appeal, and it was going forward with sentencing. Ellis complained it violated his constitutional rights. The trial court then proceeded with sentencing.” (People v. Ellis, supra, B206794 at pp. 32-34.)
After setting forth the factual background, we explained: “A defendant’s Sixth Amendment right to the assistance of counsel entitles him to substitute appointed counsel ‘if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.’ (People v. Welch (1999) 20 Cal.4th 701, 728, internal quotation marks omitted; People v. Memro [(1995)] 11 Cal.4th [786, ] 857.) Peoplev.Marsden, supra, 2 Cal.3d 118 gives a defendant who seeks to substitute counsel the right to a hearing to explain the reasons for the request. (Id. at p. 124.) Denial of the right to a Marsden hearing is reversible error unless harmless beyond a reasonable doubt. (Id. at p. 126.) [¶]...
“Ellis... contends the trial court’s failure to conduct a full, in camera hearing on his March 5 Marsden motion constituted reversible error. We agree.
“In People v. Smith (1993) 6 Cal.4th 684, the Supreme Court affirmed that a defendant is entitled to raise the claim of ineffective assistance of counsel in a motion for new trial and thus is entitled to substitution of counsel posttrial upon a proper showing. (Id. at pp. 692-693, 695.) It explained that ‘“[i]n appropriate circumstances justice will be expedited by avoiding appellate review, or habeas corpus proceedings, in favor of presenting the issue of counsel’s effectiveness to the trial court as the basis of a motion for new trial. If the court is able to determine the effectiveness issue on such motion, it should do so.”’ (Id. at p. 693.) In other circumstances, however, appellate review or habeas corpus proceedings may be a more practical remedy. (Ibid.)
“The same rules regarding a Marsden hearing and substitution of counsel apply whenever the motion to substitute counsel is made. (People v. Smith, supra, 6 Cal.4th at p. 696.) That is, the defendant must be given the opportunity to explain his reasons for desiring a new attorney. (Id. at p. 690.)
“Inasmuch as the issue of ineffectiveness of counsel can be raised in a posttrial motion, the trial court should have given defendant the opportunity to explain his reasons for wanting a new attorney. ‘When, as here, a request for new counsel comes after trial, and the court fails to conduct a proper Marsden hearing, “[t]he appropriate course of action is to remand to the trial court to allow it to fully inquire into [defendant’s] allegations concerning counsel’s performance. Following the inquiry, if the trial court determines that defendant has presented a colorable claim of ineffective assistance, then the court must appoint new counsel to fully investigate and present the motion for new trial. If, on the other hand, the inquiry does not disclose a colorable claim, the motion for new trial may be denied and the judgment reinstated. [Citation.]” [Citation.]’ (People v. Ivans (1992) 2 Cal.App.4th 1654, 1667.)[]” (People v. Ellis, supra, B206794 at pp. 35-36.)
On remand, the trial court asked Ellis to explain the basis of his Marsden motion. Ellis said he had a letter from Mark Hanasono, the alternate public defender who represented Call, stating that he saw Mr. Newton falling asleep or dozing off during part of a witness’s testimony and closing argument.
Ellis also had a letter from his mother, Davis, about her dealings with Mr. Newton “and his ineffectiveness.” He had “a witness list that’s cut from 23 to 7 witnesses on my personal behalf.” There was also a witness, Robert Chavez (Chavez), who was not on the witness list, but who witnessed one of the shootings and spoke to the police but was not called by the defense.
Ellis also brought up the fact that there were two other people initially arrested for the crimes and Mr. Newton failed to bring that up at trial. He added something about a polygraph test being inadmissible at trial. The court asked if it was Ellis’s position that they should have been called as witnesses. Ellis responded that he was not saying they should have been called as witnesses, but Mr. Newton should have brought out the fact that other people had been arrested for the crimes in order to raise a reasonable doubt as to Ellis’s guilt.
Finally, Ellis noted that he had given Mr. Newton information as to his whereabouts on September 2, “and in place of whatever cameras, et cetera, that were never investigated that were beneficial to my case.”
The trial court then gave Mr. Newton a chance to respond. He first pointed out that the letter from Attorney Hanasono did not say he was asleep, it said that his eyes were closed. The court confirmed this. Mr. Newton continued to explain that he sometimes closes his eyes when he listens to the other side or when he is concentrating on his next step. He denied being asleep. He added that Ellis was sitting next to him and, had he been asleep, Ellis could have protested at the time.
Mr. Newton had no recollection of receiving the letters from Davis, although he communicated with her by phone. Mr. Newton added that “[m]any times Mr. Ellis told me that I’d have to get the information about the witness and locations and addresses from his mother because he didn’t have them. Mr. Moore, my investigator was having problems getting them.” Mr. Newton was repeatedly told he would be getting the information, and then he would not get it. He did not get the addresses until after trial started. Nonetheless, Mr. Newton called what he considered the relevant witnesses, including people who had been at the birthday party on September 2, and they had photographs of Ellis at the party.
The court noted the accusations in Davis’s August 13, 2007 letter that Mr. Newton did not visit Ellis in custody, had not talked to witnesses, missed or was late for court appearances, and did not seem concerned about Ellis. In her March 5, 2008 letter, Davis claimed that the police lied on the witness stand when they said that Ellis was not at the funeral, and she had information to prove they committed perjury. In addition, Clark testified that he lived in an apartment and saw the crime, but Davis told Mr. Newton he lied, because he lived in the laundry room. She also raised a question about whether certain photographs were taken and admitted into evidence. Finally, there were two jurors that Davis did not feel should have been allowed on the jury based on comments they made.
Mr. Newton reminded the court that one of the exhibits at trial was the funeral program, identifying Ellis as a pallbearer. In addition, there were relatives who testified as to Ellis’s presence at the funeral.
Mr. Newton explained, “It wasn’t that I avoided witnesses. Some witnesses were so duplicative that I made a judgment perhaps.” Another potential witness, Ellis’s stepfather, had reliability problems. As to Chavez, he was not on Davis’s witness list, and Mr. Newton did not recall the name.
The court asked Ellis how Mr. Newton would have found out about Chavez. Ellis responded that he was “pretty sure that the officer they requested as you can see in writing, it was F. I. card which that had Mr. Chavez’ information.” Ellis was convinced Chavez would have been a favorable witness for the defense because he was present at the scene of the Harris shooting. It was possible he could have testified as to what really happened.
The trial court looked at the paperwork Ellis showed him and noted that it showed Chavez saw the vehicles involved in the January 27, 2006 shooting. However, “there was nothing in this document that would indicate that Mr. Chavez was able to identify who the shooter was.”
As to the issue of the other two men arrested for the crimes, Mr. Newton did not believe such evidence would be admissible. In addition, if, as Ellis stated, the two men were given polygraph tests and released, that indicated the police were satisfied that they were not involved in the crime. “And when an officer testified that essentially, well, yeah, we did talk to two or three other people. They weren’t involved. They can’t supply information or they didn’t have anything to do with it. Not only are you wasting court time, but you’re also taking the risk of developing a lot of things that you don’t know what’s going to come out of that kind of testimony. And I made a tactical decision not to do so.”
The trial court then asked Ellis why he thought it would have been helpful to have Mr. Newton bring out the evidence of the other two men who were arrested. Ellis replied that he “thought it could build reasonable doubt, ” since polygraph tests were not admissible.
The court asked Mr. Newton about evidence as to Ellis’s presence at other locations on September 4, 2006. Mr. Newton responded that he presented witnesses and photographs as to Ellis’s presence at the birthday party and then at Staples Center. As to the other alibi evidence, it did not cover the periods of time that were important to the case.
Mr. Newton also explained that his biggest problem in preparing the defense “was getting the information timely so that I could get my investigator to make contact with these alibi witnesses” that Ellis thought should testify. Mr. Newton “did not get much of that information until we were actually, I believe, selecting a jury. And I was told by his mother twice yes, I’ll do that.... And then, finally, I got them in court one morning.” And that point, he had his investigator talk to the witnesses and he subpoenaed them to testify.
Ellis disagreed with Mr. Newton’s version of the events, claiming that Mr. Newton “stated on the record that he was unable to get into contact with his private investigator which initially led my mother on that day to happen to come down to the court because I had to call her and let her know. [¶] I believe he said that my witnesses would be barred and wouldn’t be able to testify if they weren’t turned in.”
After further statements of Ellis’s and Mr. Newton’s positions, the trial court made its ruling. It explained that it “was vigilant both with regard to what the lawyers were doing and what the jurors were doing. I don’t have any recollection of seeing Mr. [Newton] fall asleep.... And as I indicated from time to time he might have closed his eyes, but he’s indicated that he was not asleep during the trial. I also find that based on my recollection he did an adequate job in terms of cross-examining witnesses and presenting witnesses and evidence on [Ellis’s] behalf.”
As to the letters from Davis, those were addressed in a prior Marsden hearing. And “[w]ith regard to the witness list, I think Mr. Newton has indicated why he felt he did not need to call all of these people on the witness list.” The court added that Mr. Newton had called some of the witnesses, and he made a persuasive argument “that a lot of these witnesses would have been cumulative.”
The court did not see any reason to call Chavez as a witness. The court thought that calling the two people who had been arrested and then released “would have been very hurtful to your case. And I think Mr. Newton made the appropriate decision not to ask the officers about [them].”
The court then found “that the defendant has not made a showing of inadequate representation of appointed counsel. Put another way, I believe that Mr. Newton provided you with adequate representation. So, therefore, I’m denying your Marsden motion.”
DISCUSSION
In accordance with our instructions, Ellis was given the opportunity to explain fully the basis for his motion to substitute counsel. (People v. Smith, supra, 6 Cal.4th at p. 690.) The question thus is whether Ellis presented a colorable claim of ineffective assistance of counsel, entitling him to new appointed counsel to make a new trial motion. (People v. Ivans, supra, 2 Cal.App.4th at p. 1667.)
We review the trial court’s decision with regard to substitution of counsel for abuse of discretion. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1003.) “‘The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendant’s right to assistance of counsel.’” (Ibid.)
When defendant raises a claim of ineffectiveness of counsel, he must show that either: “‘(1) As a result of counsel’s performance, the prosecution’s case was not subjected to meaningful adversarial testing, in which case there is a presumption that the result is unreliable and prejudice need not be affirmatively shown [citations]; or (2) counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and there is a reasonable probability that, but for counsel’s unprofessional errors and/or omissions, the trial would have resulted in a more favorable outcome.’” (In re Cudjo (1999) 20 Cal.4th 673, 687.)
In reviewing counsel’s performance, we are required to “give great deference to counsel’s tactical decisions.” (People v. Holt (1997) 15 Cal.4th 619, 703.) The selection of which evidence to present ordinarily is a tactical decision which is left to trial counsel. (People v. Jones (1981) 123 Cal.App.3d 83, 92; People v. Haylock (1980) 113 Cal.App.3d 146, 151.) In the absence of a showing as to how a decision would have resulted in a different outcome, we will not reverse based on such a decision. (In re Avena (1996) 12 Cal.4th 694, 721.)
Mr. Newton was not required to call every witness on Ellis’s witness list or present as evidence photographs of Ellis at every place he went on the days in question. Mr. Newton presented alibi witnesses who testified as to where Ellis was at the times the crimes took place. His selection of which witnesses and evidence to present was a tactical decision to which we defer. (People v. Holt, supra, 15 Cal.4th at p. 703; People v. Jones, supra, 123 Cal.App.3d at p. 92.)
Ellis has failed to show that calling additional witnesses would have resulted in a different outcome. For example, nothing in Ellis’s presentation suggests that testimony by Chavez would have aided Ellis, since, according to the information Ellis had, Chavez could not identify the people involved in the January 27 shooting. In addition, if Ellis’s stepfather had credibility problems, it is unlikely his alibi testimony would have helped Ellis.
As to the issue of other people who were arrested for the crimes but released, it is true that evidence the crimes were committed by someone else would have been relevant, admissible and helpful to Ellis’s case. (People v. Lewis (2001) 26 Cal.4th 334, 372.) We agree with the trial court, however, that evidence other people were arrested for the crimes and then released after an investigation would have been “hurtful” to the case. The jury easily could have understood the evidence to mean the police arrested the wrong people the first time and released them, but Ellis was not released because he was the person who actually committed the crimes.
The trial court accepted Mr. Newton’s statement that he was not sleeping during the trial. We defer to the trial court’s credibility determination. (Peoplev.Ochoa (1993) 6 Cal.4th 1199, 1206; Peoplev.Ceja (1993) 4 Cal.4th 1134, 1139.)
The complaints about juror comments were based on complaints in a letter from Ellis’s mother. He cites nothing in the record to support a claim of biased jurors.
As to evidence concerning Clark, at trial Mr. Newton cross-examined him concerning whether he slept in the laundry room.
In sum, Ellis failed to present a colorable claim of ineffective assistance of counsel. (In re Cudjo, supra, 20 Cal.4th at p. 687.) The trial court therefore did not abuse its discretion in denying his motion for new appointed counsel to make a new trial motion. (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1003; People v. Ivans, supra, 2 Cal.App.4th at p. 1667.)
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., WOODS, J.