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People v. Hernandez

California Court of Appeals, Second District, Fourth Division
Mar 28, 2008
No. B198023 (Cal. Ct. App. Mar. 28, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. JUAN JOSE HERNANDEZ, Defendant and Appellant. B198023 California Court of Appeal, Second District, Fourth Division March 28, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. KA074979, Charles Horan, Judge.

William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.

EPSTEIN, P. J.

Juan Jose Hernandez appeals his convictions for assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and first degree burglary (§§ 459, 460). He argues the trial court erroneously denied one of his Marsden motions and refused to hear a post-trial Marsden motion. He also argues that defense counsel was ineffective. We conclude the trial court did not abuse its discretion in denying appellant’s Marsden motion, and the court was not required to hold a post-trial Marsden hearing because appellant did not clearly request one. We also conclude that counsel’s performance was constitutionally adequate. Thus, we affirm.

All subsequent statutory references are to the Penal Code unless otherwise noted.

People v. Marsden (1970) 2 Cal.3d 118.

FACTUAL AND PROCEDURAL SUMMARY

Sometime in the evening on May 4th, 2006, Louis Montez awoke to find a man in his house. The man approached Montez and began beating him about the head with a tire iron. Montez fought back with his cane, at which point his assailant fled through the front door. Montez attempted pursuit but collapsed.

About 8:00 p.m. that evening, Montez’s neighbor noticed her dog barking and heard voices, mostly female, shouting for “Lou.” She stepped outside and saw two people walking from Montez’s front door to his front gate: a woman and a man, both wearing dark clothing.

Approximately 10 minutes later, the neighbor again noticed her dog barking and heard Montez screaming in pain. She left her house and went to her front gate, where she saw a man in dark clothing running to a car from Montez’s driveway and heard a woman’s voice shouting. The neighbor discovered Montez lying at his door with blood “everywhere.”

An El Monte police officer who arrived at the scene noticed that Montez’s bathroom window was open and that the window screen was on the ground outside. Montez had left the window open that night, but the screen was attached when he went to sleep.

Based on a description of the car, Montez’s sister suspected that Kalani Tolentino was involved. After speaking with police officers at the hospital that evening, Montez’s sister led the officers to a house in Monrovia, where they discovered the car in the driveway. Appellant was in the front passenger seat. He was wearing a black jacket, black pants and black shoes; his pants and shoes were stained with blood that was later DNA-matched to Montez. His breath smelled alcoholic and his eyes were bloodshot and watery. The officers arrested him.

Tolentino also used the name Gloria Gonzales; for simplicity, we refer to her solely as Tolentino.

Police detectives interviewed appellant in jail at approximately 6:25 p.m. the following evening. He said that he was in a romantic relationship with Tolentino, and that on May 4, 2006, he was at her house fixing her car’s tail lights. Tolentino told him that Montez had raped and abused her; this angered appellant. He said he suffered from memory losses and blackouts, but he said he could have gone to a house in El Monte, could have hit someone with a crowbar and could have had a conversation with Tolentino in which he told her that “he taught Louis a lesson and that Louis got what he deserved.” He repeated to his interviewer that Montez got what he deserved, but added that he was glad Montez was not dead and that he was not a killer.

In an information filed November 9, 2006, appellant was charged with assault with a deadly weapon (§ 245, subd. (a)(1)), first degree burglary (§§ 459, 460) and attempted murder (§§ 187, subd. (a), 664). It was alleged as to each count that appellant personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)) and it was further alleged as to the burglary and attempted murder counts that appellant personally used a deadly weapon in commission of those offenses (§ 12022, subd. (b)(1)). Finally, appellant’s two prior convictions for robbery were alleged as prior strikes and serious felony enhancements. (§§ 667, subds. (b)-(i), 1170.12.)

Appellant testified in his own defense. He said he started drinking at 7:00 a.m. on May 4, 2006 and was “very intoxicated” that day. He remembered being at Tolentino’s house fixing the tail lights on her car, but he did not remember being at Montez’s house. He explained that he suffered from memory blackouts due to alcohol use. He did not know how Montez’s blood came to be on his clothing.

Appellant was convicted of assault with a deadly weapon and first degree burglary, and all enhancements allegations as to both of those charges were found true. The jury was unable to reach a verdict as to the attempted murder charge; the trial court declared a mistrial as to that charge and subsequently dismissed it. The trial court found that appellant had been convicted of the two prior robberies but imposed a single five-year enhancement because there was insufficient evidence that they were “brought and tried separately,” and sentenced him to a prison term of 34 years to life. This appeal followed.

DISCUSSION

I

Appellant argues the trial court erred in denying his November 13, 2006 motion to replace appointed defense counsel Antonio J. Bestard. We review the court’s ruling for abuse of discretion; we will not find such abuse unless the denial substantially impaired appellant’s right to effective assistance of counsel. (People v. Abilez (2007) 41 Cal.4th 472, 488.)

Appellant brought a previous Marsden motion on September 20, 2006. He does not argue the trial court erred in denying that motion.

When a defendant moves to substitute appointed counsel and asserts inadequate representation, the trial court must allow the defendant to explain the basis of his or her complaint and relate specific instances of counsel’s inadequate performance. (People v. Abilez, supra, 41 Cal.4th at pp. 487-488.) “If the defendant states facts sufficient to raise a question about counsel’s effectiveness, the court must question counsel as necessary to ascertain their veracity.” (People v. Eastman (2007) 146 Cal.App.4th 688, 695.) “‘“‘A defendant is entitled to relief 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.’” [Citation.]’” (People v. Abilez, supra, 41 Cal.4th at p. 488.) Tactical disagreements do not, by themselves, constitute irreconcilable conflict. (People v. Alfaro (2007) 41 Cal.4th 1277, 1319.)

During a recess on November 13, 2006, appellant told the court he wanted a Marsden hearing to “[d]ismiss my counsel.” The court excused the prosecutor, and appellant then argued that his attorney refused to file a Pitchess motion and did not visit him in jail, show him evidence, move to suppress unspecified evidence or speak to him before entering the courtroom.

In response, the attorney said he believed a Pitchess motion would be frivolous. He spoke with appellant for more than an hour on July 26, 2006, and conversed with appellant whenever appellant appeared in court. He informed appellant of the prosecution’s evidence, including the results of the DNA analysis of the bloodstains on appellant’s clothing, and gave him copies of the police reports and hearing transcripts. The attorney did not move to suppress evidence because he believed no evidence had been illegally seized.

The record does not clearly show inadequate performance by appellant’s attorney. The attorney provided explanations for each of appellant’s complaints, and the court was entitled to resolve any credibility questions in the attorney’s favor. (People v. Abilez, supra, 41 Cal.4th at p. 488.) The attorney’s refusal to file motions he believed to be factually or legally unsupported is a tactical decision—indeed, an ethical obligation—within his discretion. (People v. Alfaro, supra, 41 Cal.4th at p. 1319.) The trial court did not err in denying appellant’s motion to replace appointed defense counsel.

Appellant argues the record contradicts his trial counsel’s statements regarding conversations on days when appellant appeared in court. To the extent appellant implies the trial court’s findings are not supported by substantial evidence, he is not correct. As we have said, the trial court was entitled to credit counsel’s statements, and the record does not foreclose the possibility that appellant and his counsel conversed on those dates. In any event, the number of times a defendant meets with counsel is not sufficient to establish incompetence. (People v. Valdez (2004) 32 Cal.4th 73, 96.)

Appellant argues the trial court erroneously refused to hear a post-trial Marsden motion on December 14, 2006. On that day, appellant brought “a pack of letters” to the courtroom. When the court asked him if he wanted the court to read them he said, “yes.” The court told appellant it would read the letters but indicated that appellant’s counsel should review them first. The following colloquy ensued:

“MR. BESTARD: I have no objection to the court reading this. I will submit it.

“THE DEFENDANT: Can I get copies?

“MR. BESTARD: I will make copies and I will submit it to the court the original. [sic] It’s the same issue as before. There’s a Marsden with the assistance of counsel in here. I think they were addressed during the course of trial. There’s one here that I failed to cross examine someone.

“THE COURT: I will be glad to look at whatever you wish to submit.

“MR. BESTARD: I will submit it today after I copy. I will give you a copy today.

“THE DEFENDANT: Every time I try to receive information from Mr. Bestard I never receive it. Since the last court with Jack Hunt he stated they never asked me to waive time or not. What they want to do

“THE COURT: With all due respect, what you’re talking about is so much water under [the] bridge at this point. Whether you did or didn’t waive time. I don’t want to give you [a] law school lecture. It’s not my business or job to do it. We have had the trial.” (Italics added.)

Appellant argues this colloquy indicated his desire to substitute counsel. We disagree. Appellant did not say he wanted to replace his attorney; he merely complained about not receiving information from him. “Although no formal motion is necessary, there must be ‘at least some clear indication by defendant that he wants a substitute attorney.’ [Citation.]” (People v. Mendoza (2000) 24 Cal.4th 130, 157.) We are unable to assess whether appellant so indicated in his letters because they are not in the appellate record. “It is axiomatic that it is the burden of the appellant to provide an adequate record to permit review of a claimed error, and failure to do so may be deemed a waiver of the issue on appeal. [Citations.]” (People v. Akins (2005) 128 Cal.App.4th 1376, 1385.)

II

Appellant argues his attorney’s allegedly inadequate performance denied him the right to assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. 1, § 15.) “‘In order to establish a claim of ineffective assistance ofcounsel, defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it “fell below an objective standard of reasonableness ¶ . . . under prevailing professional norms.” Citations. Unless a defendant establishes the contrary, we shall presume that “counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.” Citation. If the record “sheds no light on why counsel acted or failed to act in the manner challenged,” an appellate claim of ineffective assistance ofcounsel must be rejected “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.” [Citations.] If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” [Citation.]’” (People v. Lopez (2008) 42 Cal.4th 960, 966.)

Appellant argues his trial counsel failed to introduce evidence of his blood alcohol content at the time of the incident. Appellant cites his trial counsel’s statement at a September 20, 2006 Marsden hearing that, “I specifically indicated [to appellant] that he had a blood alcohol of .32 when he committed the crime.” But counsel’s assertion is not evidence, and the record on appeal does not contain evidence of appellant’s blood alcohol content. We cannot speculate that such evidence existed or that counsel was ineffective for failing to introduce it at trial.

Appellant argues his attorney failed to introduce expert testimony to substantiate his claims of memory failure due to alcohol abuse. But again, there is no evidence of the content or availability of such testimony. Appellant “must do more than surmise that defense experts might have provided more favorable testimony.” (People v. Lucas (1995) 12 Cal.4th 415, 448, fn. 5.)

Appellant contends his attorney failed to adequately prepare him to testify, resulting in his impeachment by his prior convictions. Before appellant testified, the trial court ruled under Evidence Code section 352 that appellant could not be impeached with his prior convictions. The trial court granted appellant’s attorney half an hour to speak with appellant before he testified. After that period, the court asked appellant if he “had plenty of time to talk to your lawyer about your choice [to testify],” and appellant replied, “I believe so.”

During appellant’s direct examination by his attorney, the following exchange took place:

“Q. So you don’t remember whether you were there or not?

“A. I don’t think I was. I’m not that person that goes in anybody’s home and beat up anybody.

“Q. Now, you had a lot to drink that night, though?

“A. Yes.

“Q. You had a tremendous amount to drink that night?

“A. Yes.

“Q. And so you wouldn’t remember whether you did any of this, would you?

“A. I don’t remember. I don’t even believe I would do that.

“Q. Why don’t you believe you would do something like that?

“A. If that would have been the case, then I was an apartment manager where I used to live at and I used to do a lot of work and I knew a lot of people and I helped a lot people. I used to take them to hospitals. I used to take old people to hospitals.

“Q. My question is: why don’t you remember something like this or why wouldn’t you do this?

“A. Because I don’t believe – because I’m not a violent person.

“Q. Did you tell Detective Walter scheid that you never murdered anyone?

“A. I believe I did. Here in the county jail I stopped three fights, and I prevented them. I told them, what are you guys doing? You’re wrong. You are already in jail, why get yourself more in trouble? And I have proof of that.”

Following appellant’s direct examination, the trial court allowed the prosecutor to impeach appellant with his prior convictions. Appellant protested, and the court explained that he “open[ed] the door” for introduction of the prior convictions by testifying about his nonviolent character.

Appellant argues his half-hour conversation with his attorney inadequately prepared him to testify. The record does not reflect what appellant and his attorney discussed during that half hour, nor does it reflect how much time in total the attorney spent preparing appellant to testify. Appellant has not presented enough evidence to show “‘counsel’s performance . . . “fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms.”’” (People v. Lopez, supra, 42 Cal.4th at p. 966.)

Appellant claims his attorney elicited the character testimony. But the questions “[w]hy don’t you believe you would do something like that?” and “. . . why don’t you remember something like this or why wouldn’t you do this?” do not clearly call for character testimony—they may elicit responses as to motive or ability to act, particularly since they follow questions about the “tremendous amount to drink” appellant had on the night in question. In addition, appellant’s statement about breaking up fights in jail exceeded the scope of the question preceding it.

Appellant challenges his attorney’s failure to move to strike the character testimony. There is a reasonable tactical explanation for this inaction: the attorney may have believed a motion to strike appellant’s favorable character testimony would damage appellant’s credibility with the jury and suggest that appellant actually had a bad character.

In any event, it is not reasonably probable that the outcome of the trial would have differed had appellant’s prior convictions not been introduced. The jury was instructed to consider appellant’s prior convictions solely for the purpose of evaluating his credibility. Absent a showing to the contrary, we presume the jury followed this instruction. (People v. Alfaro, supra, 41 Cal.4th at p. 1326.) If believed, appellant’s testimony about his inability to recall his actions would not provide a defense to any of the charges against him, and it would provide only tenuous evidence that he could not form the specific intent to commit burglary.

Appellant was convicted of two robberies in 1978, but when the prosecutor impeached appellant with his prior convictions, he mistakenly asked appellant if he was convicted of one of the robberies in 1977. Appellant initially admitted the 1977 conviction and then denied it. Appellant argues his credibility was damaged in this exchange and faults his attorney for not objecting to the question.

It is not reasonably possible that this failure to object prejudiced appellant. The exchange was brief and the prosecutor did not return to the subject. Shortly after appellant’s cross-examination, appellant’s attorney stipulated that appellant was convicted of both robberies on two separate dates in 1978. If anything, this vindicated appellant’s denial of being convicted in 1977.

Appellant contends his attorney’s closing argument deprived him of effective assistance of counsel. “[D]eference to counsel’s tactical decisions in his closing presentation is particularly important because of the broad range of legitimate defense strategy at that stage.” (Yarborough v. Gentry (2003) 540 U.S. 1, 6.)

Here, the attorney challenged the victim’s identification of appellant, suggested that Tolentino was the attacker, argued that appellant would have had more blood on his clothing had he been the attacker and argued that appellant was too intoxicated to form the specific intent requisite for burglary and attempted murder. These are all reasonable arguments with some legal and evidentiary basis. Appellant has not established that their presentation fell outside the “‘“wide range of professional competence.”’” (People v. Lopez, supra, 42 Cal.4th at p. 966.)

Appellant faults his attorney for presenting inconsistent defenses. The record does not disclose the reasons for counsel’s choice of argument, but given the evidence of appellant’s intoxication on the night of the incident, counsel may have believed appellant’s best defense to the burglary and attempted murder charges was voluntary intoxication despite its inconsistency with his argument that appellant did not beat Montez at all. (See People v. Frye (1998) 18 Cal.4th 894, 983-984 [inconsistent positions in closing argument tactically reasonable given evidence supporting mental state defense].)

Finally, appellant argues the cumulative effect of the alleged errors resulted in ineffective assistance of counsel. We disagree; the only error appellant demonstrated was counsel’s failure to object to a mistaken cross-examination question, and appellant was not prejudiced by that error.

DISPOSITION

The judgment is affirmed.

We concur: MANELLA, J., SUZUKAWA, J.


Summaries of

People v. Hernandez

California Court of Appeals, Second District, Fourth Division
Mar 28, 2008
No. B198023 (Cal. Ct. App. Mar. 28, 2008)
Case details for

People v. Hernandez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JUAN JOSE HERNANDEZ, Defendant…

Court:California Court of Appeals, Second District, Fourth Division

Date published: Mar 28, 2008

Citations

No. B198023 (Cal. Ct. App. Mar. 28, 2008)