Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kings County Super. Ct. No. 05CM7190. James LaPorte, Judge.
Conrad Petermann, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Levy, J.
INTRODUCTION
Appellant Michael Foster is an inmate at Corcoran State Prison (Corcoran). He was tried twice on a charge of battery by a confined inmate on a nonconfined person, correctional officer Matthew McVay. (Pen. Code, § 4501.5.) At both trials, McVay testified that while he was counseling appellant on Thanksgiving Day in 2004 for being in the yard at an improper time appellant struck him on the side of the head. Appellant denied striking McVay, testifying that it was McVay who hit and kicked him. Judge Lynn Atkinson presided over the first trial. A mistrial was declared after the jurors deadlocked seven-to-five in favor of a guilty verdict. Judge James LaPorte presided over the second trial. Appellant was found guilty by the jury in the second trial; also, the jury found true two prior strike allegations. (§§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i).) Appellant was sentenced to 25 years to life, to be served consecutive to a previously imposed term in an unrelated case.
Unless otherwise specified all statutory references are to the Penal Code.
Appellant argues that his defense counsel, Robert Stover, was ineffective at the second trial because he did not call a witness who testified at the first trial, a Corcoran inmate named Lorenzo Siler, and did not effectively cross-examine McVay concerning prior instances in which he used force on inmates. Also, appellant argues Stover was ineffective at both trials because he did not call other available witnesses who could have testified that McVay routinely used unjustified and excessive force against inmates. Acting in propria persona, appellant has presented these and other claims of ineffective assistance claims to this court in a petition for writ of habeas corpus (F053816), which is being considered concurrently with this appeal. A separate order will be filed in the habeas proceeding. As we will explain, the ineffective assistance claims fail on direct appeal because the record does not disclose the reason for Stover’s alleged omissions, which could have been legitimate tactical decisions. Therefore, these issues are properly resolved on habeas corpus.
TRIAL EVIDENCE
McVay testified that he was working as a floor officer on Thanksgiving Day in 2004. He noticed that appellant was trying to gain access to the prison yard. However, appellant was not eligible for the yard that day. McVay asked another officer to call appellant back to the control building over the intercom system. Appellant was agitated. McVay told appellant to return to his cell. Appellant refused. McVay decided to verbally counsel appellant in a private setting. He and another officer took appellant to a holding cell in the program office. The other officer had to return to the yard so McVay informed his lieutenant that that he had placed appellant in the holding cell and went to find another officer to assist him. McVay asked the first correctional officer that he encountered, Jeffrey Smith, to assist him and Smith agreed.
McVay and Smith stood outside the holding cell. McVay spoke to appellant for approximately five minutes. Smith told appellant to turn and face the back of the cell. McVay stepped to the right of the cage and Smith unlocked the door. The door swung all the way back against the adjoining cell. Appellant was directed to back out of the cell. Just as appellant reached the outside of the cell, he turned and punched McVay with his left fist on the side of McVay’s face. The blow struck McVay between his right eyebrow and cheekbone. As the officers forced appellant to the ground, all three men fell to the floor. Appellant attempted to break free and McVay sprayed him in the face with pepper spray. Appellant was subdued, handcuffed and taken to be decontaminated.
McVay reported to the lieutenant that he was hurt and was told to go to the facility hospital. A nurse provided him with an ice pack. She directed him to seek outside medical attention. That evening, McVay noticed that he had a black eye and a bruised ankle. McVay saw a doctor five days later. He did not return to full duty until June 2005. The vision in his right eye is still blurry.
Smith testified that after appellant cleared the cell area, he grabbed appellant’s left arm. Appellant took one step toward McVay and jerked his arm out of Smith’s grasp. Smith saw appellant swing his arm toward McVay. Smith did not see if appellant’s fist made contact with McVay’s body. However, Smith heard a sound that was consistent with a fist striking someone. It sounded like a thud similar to the sound of a thump on a watermelon.
A prison nurse testified that she examined appellant shortly after the incident. Appellant did not complain about any injuries other than burning eyes. She did not notice any injuries other than redness in his eyes.
Appellant testified on his own behalf. He admitted numerous felony convictions and acknowledged that he was serving a life sentence under the Three Strikes Law when the incident occurred. Appellant admitted that he was not supposed to be on the yard on Thanksgiving Day. He said that McVay handcuffed him and left him in a holding cell for 10 or 15 minutes. McVay returned to the holding cell with Smith. His handcuffs were removed and he exited the holding cell. McVay told him to get against the wall and put his hands up. Appellant complied. McVay asked him why he was messing up his program and then repeatedly hit him on the side of his body. Appellant did not respond, but just fell to the ground. McVay kicked him while he was lying on the ground. McVay put his pepper spray canister in appellant’s mouth and sprayed him. McVay also pepper sprayed him in the eyes. Smith just stood by. Appellant said that he was not injured because McVay did not hit or kick him very hard.
Smith was recalled as a defense witness. Smith acknowledged that the first time he testified about hearing the sound of appellant’s fist making contact with McVay’s head was at trial.
Siler was called as a defense witness at the first trial only. Siler testified that he witnessed McVay assault an inmate named Robert Milton on March 17, 2004. Milton was in the holding cage in the medical area. McVay approached Milton and told him that he was going to get him because Milton wrote an inmate complaint about him. McVay left and then returned with another officer and a sergeant. They made Milton put on handcuffs. Then they beat Milton with batons and pepper sprayed him. McVay has instigated similar incidents with other inmates. Siler admitted six prior felony convictions, including two convictions for battering correctional staff.
PROCEDURAL EVENTS
On behalf of appellant, Stover filed a Pitchess motion that was granted on May 8, 2006. During the hearing on the Pitchess motion, Corcoran’s custodian of records testified that no formal investigations by the Investigative Services Unit (ISU) or adverse actions are noted in McVay’s personnel record concerning allegations of excessive or improper use of force. However, four inmates in addition to appellant filed inmate appeals complaining about McVay’s use of force. None of the inmate appeals resulted in the warden determining that an ISU investigation was warranted. The court disclosed to Stover the names and last known contact information of the following five prison inmates who were involved in the inmate appeals: (1) James Thompson, who complained about an incident on November 10, 2003; (2) Mr. Hubbard, who complained about an incident on March 8, 2004; (3) Raymond Bradford, who complained about an incident on February 2, 2004; (4) Robert Milton, who complained about an incident on March 17, 2004; and (5) Siler, who was a witness to the alleged incident involving Milton.
At Stover’s request, the court signed transport orders for inmates Siler, Thompson and Bradford for both trials. Siler testified at the first trial, but not the second trial. Thompson and Bradford did not testify at either trial.
After the verdict was returned in the second trial, appellant successfully motioned to represent himself and Stover was relieved. Appellant’s request for an investigator was granted.
Appellant filed a motion for a new trial and requested an evidentiary hearing, arguing that Stover was ineffective for the reasons raised in this appeal. The new trial motion initially was heard on November 6, 2006. In relevant part, appellant asserted that Stover had not interviewed the witnesses identified in the Pitchess motion and claimed that Stover “lied to me and told me he interviewed them.” Stover was present and Judge LaPorte asked him if he wanted to be heard. He replied, “No, your Honor. Except for [the defense investigator’s] representations, I believe pretty much everybody that we had originally looked at in regards to the Pitches[s] motion are all out of county at this time.” Stover continued, “It was a real hassle trying to get them close even for the first trial, the second one was even worse.” Appellant’s investigator stated that he needed to talk to three out-of-county witnesses. Appellant requested a continuance, which was granted.
On November 13, 2007, Judge LaPorte denied appellant’s request for an evidentiary hearing and ruled that only declaratory evidence would be accepted to support the new trial motion. He denied appellant’s request to examine Stover under oath, directing appellant to “[g]et a declaration” from him.
On November 30, 2006, Judge LaPorte granted appellant’s request for supplemental investigator fees.
On January 18, 2007, Judge LaPorte denied the motion for new trial and sentenced appellant. Judge LaPorte did not consider the merits of appellant’s ineffective assistance claims. Citing People v. Cornwell (2005) 37 Cal.4th 50 at pages 98 to 102, Judge LaPorte concluded that the proper way to resolve these claims was in a habeas corpus proceeding. He explained that because he was not the judge at the first trial, he could not fully evaluate appellant’s ineffective assistance claims. Appellant stated that he already prepared a petition for habeas corpus and that it was ready to be filed. Judge LaPorte replied that the habeas petition would be filed and a judge would be assigned to hear it.
In his reply brief, appellant perfunctorily asserts that this “was not a valid basis for denying appellant’s motion.” This contention is not supported by legal argument or authority. Also, it is improper to raise issues for the first time in a reply brief. Therefore, we deem this point to lack foundation and reject it as waived. (People v. Dixon (2007) 153 Cal.App.4th 985, 996.)
Appellant filed notice of appeal on January 22, 2007.
An order denying the habeas petition on the ground “that issues of ineffective assistance of counsel have been raised, and remain pending, on appeal” was filed on September 14, 2007. This order was signed by Judge LaPorte. An evidentiary hearing was not conducted and the merits of the ineffective assistance claims were not considered.
On its own motion, the court augments the appellate record with this order.
DISCUSSION
Appellant’s ineffective assistance claims fail on direct appeal; questions surrounding Stover’s competency are properly evaluated and resolved in a habeas proceeding.
Appellant argues that Stover was ineffective at the second trial because he did not call Siler at the second trial and did not cross-examine McVay about his use of force on other inmates. Also, he contends that Stover was ineffective at both trials because he did not call the other inmates who were disclosed to the defense at the Pitchess proceeding. As we will explain, these claims fail on direct appeal because the record does not illuminate the basis for the challenged omissions and they might have been reasonable tactical choices.
Pursuant to Government Code section 68081, the parties each filed a letter brief addressing the question whether appellant’s ineffective assistance claims are properly resolved in a habeas corpus proceeding.
Appellant bears the burden of establishing inadequate assistance of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425 (Pope).) He is not entitled to trial without error. (People v. Perez (1978) 83 Cal.App.3d 718, 734.) To prevail, he must show both deficient performance and a reasonable probability of a more favorable outcome. (People v. Duncan (1991) 53 Cal.3d 955, 966.)
To resolve an ineffective assistance claim on direct appeal, the appellate record must clearly demonstrate that the alleged error was a “mistake beyond the range of reasonable competence.” (People v. Montiel (1993) 5 Cal.4th 877, 911.) Review of counsel’s performance is to be highly deferential. “Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ [Citation.]” (Strickland v. Washington (1984) 466 U.S. 668, 689.)
When the record does not illuminate the basis for a challenged act or omission and it is not necessarily an incompetent mistake, an ineffective assistance claim is more appropriately made in a petition for habeas corpus. “[N]ormally a claim of ineffective assistance of counsel is appropriately raised in a petition for writ of habeas corpus (see, e.g., People v. Mendoza Tello [(1997)] 15 Cal.4th 264[, 266-276]), where relevant facts and circumstances not reflected in the record on appeal, such as counsel’s reasons for pursuing or not pursuing a particular trial strategy, can be brought to light to inform the two-pronged inquiry of whether counsel’s ‘representation fell below an objective standard of reasonableness,’ and whether ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ [Citation.]” (People v. Snow (2003) 30 Cal.4th 43, 111.) Reviewing courts are not to become engaged “‘in the perilous process of second-guessing.’” (Pope, supra, 23 Cal.3d at p. 426.) They will not run the risk of unnecessarily ordering reversal in a case “where there were, in fact, good reasons for the aspect of counsel’s representation under attack. Indeed, such reasons might lead a new defense counsel on retrial to do exactly what the original counsel did, making manifest the waste of judicial resources caused by reversal on an incomplete record.” (Ibid.)
The decision whether or not to call a witness is peculiarly a matter of trial tactics, unless the decision results from the unreasonable failure to investigate. (People v. Bolin (1998) 18 Cal.4th 297, 334.) Similarly, the extent to which a witness is cross-examined is normally left to counsel’s discretion. (Ibid.) The record does not disclose on its face that Stover failed to investigate the facts necessary to make an informed decision whether to call Siler at the second trial or the other inmates at either trial. Although the record does not contain an explanation why Stover failed to present any inmate witnesses at the second trial or to cross-examine McVay on his prior uses of force, the omissions could have resulted from a legitimate tactical choice. We can posit several reasons why a reasonably competent trial counsel might decide against pursuing this particular line of defense. The prospective inmate witnesses are convicted felons and McVay’s personnel record is devoid of any investigations by ISU or adverse actions relating to excessive or improper force. None of the inmate appeals were successful. These facts weigh against the potential success of the allegedly abandoned defense. Furthermore, Stover had the opportunity to assess Siler’s testimony at the first trial. Siler admitted having suffered two convictions for battering correctional staff. Stover could have determined that Siler was not believable and this line of defense was weak. Even if the strategy turned out to be unsuccessful, such a tactical error generally is not deemed reversible. (People v. Jones (2003) 29 Cal.4th 1229, 1254.)
There appears to be a dispute between appellant and Stover concerning the adequacy of the pretrial investigation. Appellant stated at the November 6, 2006, hearing that Stover told him that he interviewed the inmates who were identified at the Pitchess hearing; appellant then asserted that Stover lied to him and that Stover did not contact the inmates. Stover did not directly respond to this accusation but indicated to the court that it was difficult to contact witnesses. Stover did obtain signed transport orders for three inmates prior to both trials. One of these inmates, James Thompson, signed an affidavit in support of the habeas petition averring that after he was transported to court Stover told him that his testimony was not needed. This indicates that some pretrial investigation occurred, although the full extent is not known.
Appellant argues that questions surrounding Stover’s competency should be resolved on appeal because Stover declined to submit an informal response to the habeas petition in the superior court. Therefore, Stover had an opportunity to explain his inaction and declined to do so. We are not persuaded. The appellate record does not contain a reasonably complete factual inquiry into the events surrounding the challenged areas of representation. The merits of appellant’s ineffective assistance claims were never considered in the superior court. Both the motion for new trial and the habeas petition were denied on technical grounds. Stover was merely extended an invitationto file an informal response to the habeas petition, which was then denied for a procedural reason.
The order denying the habeas petition recites that Stover “declined the Court’s invitation to informally respond to Petitioner’s allegations of ineffective representation.”
For all of these reasons, we conclude appellant’s ineffective assistance claims fail on direct appeal and they are properly considered in a habeas corpus proceeding. (People v. Diaz (1992) 3 Cal.4th 495, 566; People v. Cummings (1993) 4 Cal.4th 1233, 1342.).
We decline to assess the admissibility of testimony concerning McVay’s alleged prior uses of force or to speculate about the likelihood of a more favorable verdict if such testimony had been offered. (People v. Mendoza Tello, supra, 15 Cal.4th at p. 268.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Wiseman, Acting P.J., Kane, J.