Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 50700047
STEIN, J.
A jury convicted Juan Espino (defendant) of three counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), and found true, with respect to each count, an allegation that he was armed with a handgun (Pen. Code, § 12022, subd. (a)(1)). The court sentenced defendant to the lower term of two years on count one, and a consecutive one-year term for the firearm enhancement. It imposed concurrent three-year terms for each remaining count and enhancement. Defendant filed a timely notice of appeal.
Defendant’s sole contention on appeal is that he received ineffective assistance of counsel because his attorney failed to present evidence that he did not actually have the requisite specific intent to commit robbery due to his voluntary intoxication at the time of the offense. We shall hold that counsel rendered effective assistance, and shall affirm the judgment.
Facts
On October 28, 2005, Sergio Huidobro, Julio Olvera and Oscar M. were leaving a party when a man, later identified as Fernando Garcia, approached and demanded everything they had in their pockets. When the victims did not immediately respond, Garcia removed a handgun from his waist. He pointed the gun in the air as he took their property with the other hand.
Huidobro pulled out his wallet, car keys, cell phone and camera, and gave them to Garcia. Oscar gave Garcia his keys and $30 in cash, and Olvera handed over his wallet and keys. Another man, later identified as defendant, approached them from behind and went through Huidobro’s pockets and removed some coins. He also checked the pockets of the others. Oscar, the last man defendant checked, testified that defendant asked him in Spanish whether he had anything else, and Oscar told him he did not. According to Oscar, the man with the gun ran to the car before defendant finished checking their pockets. Both men got into a nearby car and drove away.
Within five minutes, Officer Armando Moreno responded to a call reporting the robbery. While he was interviewing the victims, one of them spotted the getaway car, and Moreno pursued it. Defendant was the sole occupant of the car. Officer Moreno found spilled beer in the front console and a mostly empty bottle of beer in the back seat. He ordered defendant to exit the vehicle and walk backwards about 25 feet, which defendant did without any problem. Officer Moreno found keys belonging to Huidobro and Olvera in the front console of the car, and Huidobro’s digital camera on the floorboards. The police later recovered Huidobro’s cell phone at Garcia’s house.
Officer Moreno transported Olvera to the scene of the car stop and asked whether defendant was one of the perpetrators. Olvera said he was not. Olvera also was not certain the car defendant was driving was the same vehicle the two robbers had earlier driven away.
Huidobro identified Garcia and defendant in a pretrial photo lineup, and in court. Olvera identified defendant in a lineup, but was “confused” and mistakenly identified defendant as the man with the gun. At trial, Olvera identified defendant as the second man who checked his pockets. Oscar testified that he was afraid to identify the second suspect, and was not sure that defendant was the man who had gone though his pockets.
The prosecutor argued to the jury that defendant was guilty as a direct perpetrator in the robbery of Huidobro, and as an aider and abettor of Garcia with respect to the robbery of Olvera and Oscar. The defense was mistaken identity, and the defense closing argument focused on the inconsistencies in Olvera’s identification of defendant, and on the possibility that Huidobro saw defendant after the arrest and that this tainted his later identifications.
Analysis
Defendant contends that he received ineffective assistance of counsel because his defense counsel failed to present evidence that he was so intoxicated he did not actually have the requisite specific intent to commit robbery, or the knowledge that Garcia intended to commit robbery. (See People v. Mendoza (1998) 18 Cal.4th 1114, 1130-1133.) It is defendant’s burden to establish that no reasonably competent attorney would have done as his counsel did, and that it is reasonably probable that absent counsel’s omission he would have obtained a more favorable determination. (People v. Lucas (1995) 12 Cal.4th 415, 436.)
Relevant Facts
The court held a hearing on defendant’s pretrial motion to suppress several of his post arrest statements on the ground that he was too intoxicated to have voluntarily waived his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436). Officer Moreno testified that defendant smelled of alcohol, and Breathalyzer tests, which were performed approximately two hours after the robberies occurred, revealed a blood alcohol content of .14 and .15 percent. After being advised of, and waiving, his Miranda rights, defendant denied committing the robbery. He said he had met some friends at a liquor store, and had just dropped them off before being stopped by Officer Moreno. While Moreno was filling out booking forms, defendant asked Moreno whether he was Mexican, and when Moreno said he was, defendant told him he “was acting white” by arresting his own people. Defendant also told Moreno he was not afraid “to shoot a cop.” When Moreno told defendant the amount of bail, defendant became upset, and said: “That’s okay. I’ll do my time, watch. I’ll do my time, and when I get out I’m coming after you.”
The court found that defendant was not so intoxicated that his Miranda waiver was involuntary. It ruled that defendant’s statement that he would do his time and get Officer Moreno once he was out was relevant and admissible as evidence of consciousness of guilt. The court ruled the remaining statements were inadmissible in the prosecution’s case-in-chief, but might become relevant if the defendant presented evidence of voluntary intoxication to show he did not actually have the specific intent to commit robbery. The court stated it would reserve ruling on the admissibility of these statements “unless and until the intoxication defense is developed.”
The prosecutor had argued that defendant’s initial alibi, and deductions about Moreno and threats, would be relevant to show he was not too intoxicated to have the specific intent to rob because these statements demonstrated logic, coherence, and deliberation.
After the prosecution presented its case-in-chief, defense counsel informed the court that he was contemplating calling Moreno as a witness to present evidence of defendant’s intoxication, and wanted to know whether the court would allow the prosecutor to rebut with the post arrest statements. The prosecutor asked the court to permit as rebuttal not only the statements Moreno had testified to, but also statements defendant made to Detective Rood. As an offer of proof, the prosecutor stated that, during a 30-minute interview, defendant gave Rood a lucid and detailed description of what happened, and never mentioned alcohol. Defendant’s statement to Rood included an admission that he was present at the scene with Garcia, but a denial that he did anything to assist Garcia. The court ruled that this evidence would be admissible. Defense counsel stated that, in light of that ruling, he would not call Moreno as a witness.
Defense counsel acknowledged that the evidence elicited at the suppression hearing was probably insufficient to show that defendant was so intoxicated he did not form the requisite intent. Defense counsel nevertheless explained he was considering presenting evidence of defendant’s intoxication to explain his conduct when driving.
Ineffective Assistance
The foregoing record demonstrates that counsel’s decision not to present evidence of voluntary intoxication was not incompetent. Rather, it was an explicit and informed tactical decision to avoid the admission of damaging rebuttal testimony, including defendant’s statement that he was at the scene of the robbery, that could have undermined the defense of misidentification. (See People v. Williams (1988) 44 Cal.3d 1127, 1142 [counsel made a reasonable tactical decision not to present a diminished capacity defense because it might conflict with the stronger alibi defense].)
Defendant acknowledges that defense counsel explicitly made this tactical decision, but argues that this was not a reasonable choice because the evidence of intoxication was “compelling,” and the misidentification defense was not particularly strong. Defendant’s argument requires this court to accept his judgment regarding the relative strength of these lines of defense in place of that of defense counsel. This we cannot do. “ ‘ “Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ ” ’ ” (People v. Jones (2003) 29 Cal.4th 1229, 1254.) We must “ ‘ “accord great deference to counsel’s tactical decisions” ’ ” and “ ‘ “should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight.” ’ ” (Ibid.)
Counsel’s decision was well within the range of reason. Counsel explicitly stated his judgment that Moreno’s testimony alone would not support an instruction or finding that defendant was so intoxicated he did not actually form the intent to steal. Counsel’s assessment of the relative weakness of the evidence of intoxication to show lack of intent is supported by: (1) the court’s prior ruling that defendant was not too intoxicated to understand and voluntarily waive his Miranda rights; (2) the fact that, a very short time after the commission of the offense, at the time of the car stop, defendant was able to walk backwards 25 feet without stumbling; (3) the fact that during the commission of the offense defendant was not too incapacitated to prevent him from walking up to each victim, searching their pockets, and asking whether they had any other property. Weighing in the balance the additional fact that pursuit of this line of defense would expose defendant to damaging rebuttal testimony that risked undermining his other viable defense of misidentification, it was a reasonable choice to elect not to pursue intoxication, and instead rely solely upon misidentification. (See People v. Miranda (1987) 44 Cal.3d 57, 121 [counsel made a reasonable tactical choice not to introduce evidence favorable to defendant to avoid “opening the door” to damaging rebuttal testimony]; overruled on other grounds in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.)
For similar reasons, defendant also cannot show prejudice. The evidence that defendant was so intoxicated at the time of the offenses that he did not actually have the intent to steal was weak, and open to a damaging rebuttal. It therefore is not reasonably probable that the jury would have reached a more favorable decision had defense counsel presented the evidence of intoxication.
Conclusion
The judgment is affirmed.
We concur: MARCHIANO, P. J., MARGULEIS, J.