Opinion
Rehearing Granted Sept. 12, 1990.
Previously published at 222 Cal.App.3d 1557
Ira Reiner, Dist. Atty., George M. Palmer and Brent Riggs, Deputy Dist. Attys., for plaintiff and appellant.
Bradley Wm. Brunon and Jeffrey J. Douglas, Santa Monica, for defendant and respondent.
DANIELSON, Acting Presiding Justice.
The People appeal from an order granting a new trial following Robert Glover's (Glover) conviction by a jury of first degree murder. (Pen.Code, § 1238, subd. (a)(3).) We affirm the order.
PROCEDURAL HISTORY
Glover and Lance Van Hook were charged by information with the murder of Gordon Kozub (Pen.Code, § 187, subd. (a), and conspiracy to commit the murder (Pen.Code, § 182, subd. (a)(1). The cases were severed for trial, and the conspiracy count was dismissed as to Glover, who was, however, tried under the theory that he conspired with Van Hook to commit the murder.
Following his conviction of first degree murder, Glover moved for a new trial on the ground that his appointed trial counsel failed to adequately represent him, in that counsel did not honor his request to testify in his own behalf, failed to investigate the case, and failed to request proper jury instructions. The motion was granted on December 21, 1988, based on the trial judge's conclusions that (1) he erred in failing to give the jury CALJIC No. 6.20 on withdrawal from a conspiracy, and (2) Glover's trial counsel failed to provide him effective representation. The People's notice of appeal was timely filed on February 15, 1989.
FACTS
Trial
Appellant's trial commenced on the morning of July 21, 1988; the jury returned its verdict just after 3 p.m. on the following day.
The evidence adduced at trial showed that the victim, Kozub, was shot by Lance Van Hook on March 28, 1988. At the time of his death, Kozub was living with Katherine Paddock, to whom he was like a son. Paddock testified that approximately one week before the killing, appellant told her Kozub was a "snitch." Two days prior to the killing, appellant telephoned Paddock's home looking for Kozub and stating he was going to kill him because he was a snitch. In a second conversation later the same day, appellant again stated he was going to kill Kozub, and offered Paddock an ounce of drugs if she would allow "them" to come to her house to kill him. During this conversation, Paddock heard Van Hook in the background, "hollering and going off like a crazy person," threatening to kill Kozub's relatives as well. Later in her testimony, Paddock stated appellant told her, in each of these conversations, to tell Kozub to stay away from her home.
On the following day, Paddock went to the garage of the apartment building where appellant lived at 1880 Cedar. There, appellant and Van Hook, each of whom had a gun in the back of his pants, stated they intended to shoot Kozub. On this occasion, according to Paddock, Van Hook described a prior unsuccessful attempt to kill the victim. Appellant was not a party to that attempt.
Beverly Tyler was also present in the garage. She testified appellant stated Kozub was ripping people off, and if he came around, appellant was going to shoot him and then ask him if he was breathing.
Tyler's boyfriend, Chester Beasley, testified that on March 28, 1988, Kozub drove with two other men to the alley behind 1880 Cedar. Kozub got out of the car and spoke with apartment manager Shirley Friedly, who was working on her truck. She left, and Kozub drove the car closer to the gate, got out and approached the gate. As he started through it, appellant came down some stairs, stopping at a landing half way down. Kozub asked, " 'Hey, man, who has my leather jacket?' " According to Beasley, appellant pointed an automatic handgun upward, leaned over a railing and asked, " 'Hey, motherfucker, are you ready to die?' "
Beasley heard Van Hook's voice from the other side of the wall, stating, " 'I have your leather jacket. If you want it, you'll Police officers investigating the shooting found appellant and Van Hook in an apartment at the complex. Van Hook was hiding under a mattress in a closet. An unloaded 9 millimeter Luger was found in the same closet. A clip for the gun, and ammunition for a revolver, were also found in the apartment.
Appellant did not testify at his trial. The only evidence presented by the defense was the testimony of Detective Dennis Robbins that, contrary to her testimony, Beverly Tyler did not make a statement to anyone in the Long Beach Police Department, and Chester Beasley told the detective that prior to the killing Van Hook shouted, " 'They've got a gun,' " or " 'Give me a gun,' " whereupon Beasley put his hands in the air and said, " 'Nobody in this car has a gun.' "
New Trial Motion
At the hearing on appellant's motion for a new trial, Shirley Friedly, who was not called as a witness at trial, testified she heard Kozub inquire about his jacket, and appellant tell him to leave, as well as three shots, on the date of the killing. However, she did not hear appellant ask Kozub if he was ready to die. According to Friedly, appellant's trial counsel, Ron Slick, called her one or two days prior to trial, and inquired about threats appellant had made several days prior to the killing. When she confirmed that he had made such threats, Slick stated he would not call her as a witness because she would be damaging to appellant's cause. Slick did not inquire concerning appellant's statements on the day of the shooting. According to Friedly, appellant's threats seemed more braggadocio than serious.
Appellant's girlfriend, Margaret Garcia, testified she heard the exchange between appellant and Kozub from her position on the top landing of the staircase; appellant did not threaten Kozub. She heard Van Hook say, " 'They got a shotgun,' " whereupon appellant ran up the stairs and ordered her into their apartment just seconds before she heard the shots. She spoke with Slick for five to ten minutes at the courthouse. When she later inquired why he did not call her as a witness, he told her she was not needed.
Appellant testified he was in his apartment when he received a telephone call from Van Hook or Friedly informing him of Kozub's arrival. He went downstairs, carrying his unloaded gun, and told Kozub to leave. Appellant explained that Kozub, who was "real big," had taken appellant's stereo when appellant was in jail. Upon his release, appellant tried several times to recover the stereo, which was eventually returned by Kozub's mother.
Because of this earlier difficulty, when Kozub came to the apartment building to retrieve his leather jacket, appellant told him to send someone else for it. Kozub went back through the gate, and appellant turned and walked back toward the stairway. When he reached the bottom of the stairway, he heard Van Hook yell, " 'They got a shotgun.' " Appellant ran upstairs and told Garcia to get inside. From the top of the stairway, appellant saw Van Hook come over the wall, and Kozub's vehicle speed off.
Appellant claimed he and Kozub were friends. Van Hook used methamphetamine, which made him edgy. Van Hook had threatened to kill Kozub, and stated just after the shooting that he shot at the car and thought "he got him."
According to appellant, Slick visited him at county jail once, remaining for approximately 45 minutes. He promised to return but did not, despite requests by appellant, his mother, and his girlfriend. On the date Appellant told Slick he wanted to tell his own story. Slick supplied him with a copy of his statement to the police in order to refresh his memory, then failed to call him, as well as other witnesses he had promised to call.
Called by the prosecutor to explain his performance as counsel, Slick explained that he elected not to call Friedly because she was a witness to threats appellant made against the victim. He was of the opinion that Garcia's testimony would be of little value to the defense, as he believed she was not a witness to the entire incident, may have lied to the police, and may have helped to conceal appellant from them. In any event, any value she might have had was outweighed by her position as appellant's girlfriend.
Slick claimed he and appellant spoke at length at county jail approximately two months prior to trial, and on a number of other occasions during the course of the proceedings. He claimed he informed appellant of his right to testify, and that the decision whether or not to do so was appellant's. According to Slick, appellant elected not to testify, and Slick agreed with that decision, primarily because appellant's position was that he never threatened Kozub. In light of the testimony of other witnesses, Slick did not feel appellant would be believed by a jury.
Slick admitted he took no notes of any of his conversations with appellant, but denied that appellant ever expressed dissatisfaction with his conduct of the case. He claimed the exchange of epithets occurred when appellant balked at waiving his speedy trial rights for one day, and that appellant ultimately agreed to do so. Slick did not recall whether appellant's mother ever attempted to contact him prior to trial, or whether she asked him if she should get another lawyer. He denied that she told him of appellant's concern with his conduct of the case, or that she offered to pay him to devote more time to it.
Slick admitted he did not make a discovery motion, and that Beverly Tyler was a surprise witness, though he believed the prosecution was also not aware of this witness prior to trial.
Appellant's mother, Natalina Glover, testified in rebuttal that appellant was indeed dissatisfied with Slick's representation, that she in fact spoke with Slick by telephone several times, and that she told him she was thinking of hiring other counsel, whereupon he told her he thought he would win the case. Mrs. Glover claimed she did offer Slick money to devote more time to the case, which he refused, assuring her again that the case "looked very good" for appellant. Appellant did wish to testify in his own behalf, and both she and he were surprised when Slick failed to offer any defense witnesses.
DISCUSSION
"In passing on a motion for a new trial the trial court has very broad discretion, and reviewing courts are reluctant to interfere with a decision granting or denying such a motion unless there is a clear showing of an abuse of discretion." (People v. Davis (1973) 31 Cal.App.3d 106, 111, 106 Cal.Rptr. 897.)
Here, the trial court granted appellant's motion for a new trial on grounds both statutory and nonstatutory.
Penal Code section 1181 provides, in part: "When a verdict has been rendered ... against the defendant, the court may, upon his application, grant a new trial, in the following cases only: ... 5. When the court has misdirected the jury in a matter of law...." Inasmuch as a constitutional duty may not be abridged by statute, a new trial may also be granted to a defendant who was denied a fair trial. Among the matters that may be considered on such a motion is a claim of inadequacy of trial counsel's representation. (People v. Fosselman At the close of the hearing on the new trial motion, the judge stated on the record that the motion was granted on the ground that the court erred in failing to give CALJIC No. 6.20. The judge then invited both counsel into his chambers, where he advised them of the additional ground of inadequate representation, and that he chose to do so informally because he wished to avoid reporting trial counsel to the State Bar. These remarks are set forth in a settled statement on appeal, wherein the judge also stated that Slick had done a poor job of representing appellant, and that he did not know that appellant and Slick were not getting along until they had said so at the hearing on the new trial motion, and if he had heard the defense evidence presented on the motion, he might not have let the case go to the jury.
CALJIC No. 6.20: "Any member of a conspiracy may withdraw from and cease to be a party to the conspiracy, but his ... liability for the acts of his ... co-conspirators continues until he ... effectively withdraws from the conspiracy. [p] In order to effectively withdraw from a conspiracy, there must be an affirmative and bona fide rejection or repudiation of the conspiracy which must be communicated to the other conspirators of whom he ... has knowledge. [p] If a member of a conspiracy has effectively withdrawn from the conspiracy he ... is not thereafter liable for any act of the co-conspirators committed subsequent to his ... withdrawal from the conspiracy, but he ... is not relieved of responsibility for the acts of his ... co-conspirators committed while he ... was a member."
In addition, we have before us the reporter's transcript of proceedings held on January 17, 1990, apparently in response to the People's dissatisfaction with the settled statement. On that occasion, the trial court stated: "The transcript of the motion of [sic] new trial was twice as long as the trial transcript was. [p] The jury was picked, sworn, and a verdict rendered within 24 hours in a first degree murder case. Mr. Slick has not investigated the case. He did not call witnesses who Mr. Brunon [counsel for appellant on the new trial motion] contacted later and ... whose declarations convinced me that they had things of merit to say in defense of the defendant. He was just--he got a shabby defense." The court stated the jury should have been instructed on withdrawal from a conspiracy, and noted that in Van Hook's trial for both murder and conspiracy, the jury found no conspiracy.
In their opening brief, the People separate the two reasons given by the trial court, pointing out that the evidence at trial did not warrant the giving of CALJIC No. 6.20 on withdrawal from a conspiracy, as appellant's claimed return up the stairway was first revealed at the hearing on the new trial motion. We believe the two grounds are inextricably entwined, as the court's failure to give the subject instruction was caused by trial counsel's failure to elicit the exculpatory testimony.
In order to prove a claim of inadequate trial assistance, appellant "must show that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates. In addition, appellant must establish that counsel's acts or omissions resulted in the withdrawal of a potentially meritorious defense." (People v. Pope (1979) 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859.) "Once an appellant has met these burdens, the appellate court must look to see if the record contains any explanation for the challenged aspect of representation. If it does, the court must inquire whether the explanation demonstrates that counsel was reasonably competent and acting as a conscientious, diligent advocate. For example, where the record shows that counsel's omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed. [Citation.] In contrast, where the record shows that counsel has failed to research the law or investigate the facts in the manner of a diligent and conscientious advocate, the conviction should be reversed since the defendant has been deprived of adequate assistance of counsel. [Citation.]" (Id. at pp. 425-426, 152 Cal.Rptr. 732, 590 P.2d 859.)
"Reviewing courts should avoid second-guessing counsel's informed choice among tactical alternatives, but a defense attorney's freedom to make such decisions is not "Even if counsel has legitimate tactical reasons for introducing no evidence, his performance is still inadequate if evidence supporting a potentially meritorious defense remains unexplored. [Citation.]" (In re Cordero (1988) 46 Cal.3d 161, 181, 249 Cal.Rptr. 342, 756 P.2d 1370.) The record shows Slick failed to call witnesses who, whatever their other weaknesses, would have testified to a version of the events tending to diminish the People's case for conspiracy and to establish appellant's withdrawal from the conspiracy, if there was one. Appellant's conviction of first degree murder was based solely on a conspiracy theory. He was thus deprived of the only potentially meritorious defenses available to him. (People v. Pope, supra, 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859.)
Moreover, the record supports the court's assessment of the cursory nature of counsel's investigative efforts, as well as the breakdown in the attorney/client relationship. In addition to the matters referenced by the trial court, appellant points out that Paddock, who provided damning evidence of threats against Kozub by appellant, confused him with Van Hook at the preliminary hearing, then stated she had never seen appellant before in her life. Slick made no use of this evidence when cross-examining Paddock. It thus appears he failed to review the transcript of the preliminary hearing, where appellant was represented by different counsel. In addition, although the trial court declined to state on the record whether he gave more credence to the testimony of appellant or his counsel on the new trial motion, we must construe the record in the light most favorable to the order made by the court. Appellant claimed he wished to testify at his trial, and in fact expected to do so. "Although normally the decision whether a defendant should testify is within the competence of the trial attorney [citation], where, as here, a defendant insists that he wants to testify, he cannot be deprived of that opportunity." (People v. Robles (1970) 2 Cal.3d 205, 215, 85 Cal.Rptr. 166, 466 P.2d 710.) Slick conceded he was unaware of the decision in Robles.
The trial court properly concluded counsel did not conduct himself in a manner to be expected of reasonably competent attorneys acting as diligent advocates, in that he was not adequately prepared for trial (People v. Pope, supra, 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859), and appellant was thereby deprived of a fair hearing.
DECISION
The order granting appellant a new trial is affirmed.
CROSKEY and HINZ, JJ., concur.