Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD201413, Leo Valentine, Jr., Judge.
HUFFMAN, J.
A jury convicted Willie James Irvin of attempted murder (Pen. Code, §§ 187, subd. (a)/664; count 1), two counts of assault with a semiautomatic firearm (§ 245, subd. (b); counts 2 & 3), discharge of a firearm from a motor vehicle (§ 12034, subd. (d); count 4), and unlawfully discharging a firearm at an occupied motor vehicle (§ 246; count 6). In doing so, the jury also found true that Irvin had personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), had personally used a firearm (§ 12022.5, subd. (a)), and had been armed with a firearm during the commission of the count 1 attempted murder charge (§ 12022, subd. (a)(1)). The jury additionally found true allegations that Irvin had been armed with a firearm and had personally used it during the commission of the crimes in counts 2, 3, and 4. (§§ 12022, subd. (a)(1); 12022.5, subd. (a).)
All statutory references are to the Penal Code unless otherwise specified.
Irvin's codefendant, Lufti Ghaassan Elias, was also convicted of the same five charges and additionally of a sixth count for making a criminal threat. Elias was also found to have been vicariously armed with a firearm and admitted several "on bail" enhancement allegations. Elias is not a party to this appeal.
After the trial court denied Irvin's motion for new trial, it sentenced Irvin to a total prison term of 25 years, consisting of a five-year lower term on count 1 plus a consecutive 20-year term on the accompanying section 12022.53, subdivision (b) firearm enhancement. The court imposed a concurrent six-year midterm on count 3 and stayed execution of sentence under section 654 on Irvin's remaining counts and enhancements.
The court also sentenced Irvin to a concurrent sentence of 365 days on a count of battery on a cohabitant (§ 243, subd. (e)(1)) in a separate domestic violence matter, case number SCD202353, which trailed the trial in this case and to which Irvin had pled guilty.
Irvin appeals, contending the trial court abused its discretion in denying his new trial motion by failing to find a discovery violation that constituted prejudicial prosecutorial misconduct or, alternatively, by failing to find he was denied the effective assistance of trial counsel. Irvin also claims the court prejudicially erred in failing to hold a Marsden hearing to determine whether he should have new counsel appointed for the purpose of filing his new trial motion on the grounds of ineffective assistance of counsel. Finally, Irvin points out that the abstract of judgment should be corrected to delete four stayed on-bail enhancements for which he was neither charged nor were found true by the jury.
Although the People argue the trial court properly exercised its discretion in denying Irvin's motion for a new trial, they concede the abstract of judgment should be corrected to reflect the four stayed terms are for the section 12022, subdivision (a)(1) firearm "arming" enhancements, which the jury found true, and not for the on-bail enhancements. We affirm and direct the clerk of the superior court to modify the abstract of judgment to conform to the actual sentence imposed.
FACTUAL BACKGROUND
Irvin does not challenge the sufficiency of the evidence to support his convictions or the jury's true findings, which essentially arose out of an altercation in front of Effin's Pub on El Cajon Boulevard in San Diego on August 24, 2006, between his good friend Elias and others who were preventing Elias from leaving the bar with his girlfriend, Janice Bongato. Angry that his friend was on the losing end of the fight, Irvin left the area with Elias in his Cadillac, retrieved a handgun, returned to the area of the pub where the victims were just leaving, followed them and then fired shots at their car.
At trial, the evidence revealed that Bongato had gone to Effin's on the evening of August 23, 2006, with her friend Cherry Adams Borro and a Navy man named Kerry Pope for a get together with other Navy personnel to celebrate their coming home from a recent deployment. At the pub, they met up with Julian Cristo-Lucero (Cristo), his roommate Maurice Celestine, and several other men who were also in the Navy, and Cristo's girlfriend Ja'net Vasser. The group talked, drank beer and played pool.
At some point Bongato, who had not met anyone in the group before that evening except for Borro, went outside the bar to talk on her cell phone. When she rejoined the group, she became more distant. A short time later, Elias and Irvin entered the pub, walked around, looking at the people in the group. Elias then walked up to Bongato and yelled at her, saying he did not like being lied to and he wanted her to leave with him. When Bongato did not respond, Elias grabbed her by the arm, called her a "bitch," told her to "hurry up," and pulled her out the pub's front door. Bongato escaped back into the pub and hugged Vasser, whispering to her, "Help, he's going to beat my ass." Vasser told Cristo, Celestine and others what Bongato had said and Borro also expressed her concern about letting Bongato leave with Elias.
Vasser then went outside with Irvin, Bongato and Elias following close behind. When Vasser asked Irvin if he was going to stop Elias, Irvin told her that "his boy was sick of being lied to" by Bongato. Cristo, who had witnessed the others leaving the pub, walked outside and asked Elias, "What his problem was?" Elias walked away from Cristo, responding that he was just there to "get his bitch," with Irvin chiming in that Elias was just getting his lying girlfriend. Bongato, Cristo and Vasser walked back into the pub, where Bongato told the others that she did not want to go with Elias, who had come back inside and pulled her by the arm again.
When Pope then tried to get Elias to leave without Bongato, Elias became angry, again calling Bongato a "bitch," saying she was leaving with him and telling Pope to "mind [his] own business." When Cristo again asked Elias what his problem was, Elias moved toward him exchanging words and Cristo "sucker-punched" Elias in the face, sending him "flying" out the pub's door toward the street. As the remainder of the group followed outside, they saw Irvin walking to the parking lot to get his car. As he did so, Vasser and Cristo heard Irvin say "he was going to get his heat." When Irvin pulled the car up in front of the pub, Elias got into the passenger seat and told Cristo he had something for him, saying "I will see you nigga." At that same time, Irvin yelled out that he had "something for you guys. I will be back." As Irvin and Elias drove away, Cristo and his friends, along with Bongato, who mentioned that either Elias or Irvin had a gun, returned to the pub to finish their drinks and close out their tabs.
After about 15 to 20 minutes, the group left Effin's pub in three separate cars, with Cristo riding in Vasser's car, Celestine driving another car with several others, and Pope driving Bongato and Borro home. When Vasser started driving east on El Cajon Boulevard, Cristo saw a blue Cadillac make a u-turn and follow them. As she stopped at a red light several blocks down the road, Cristo noticed that the Cadillac had pulled up next to Vasser's car on his right side. Through the open window, Cristo heard someone say, "I told you I'd see you again, nigga" and "what now, bitch" as he saw Irvin take something out from his waist, lap area. Cristo told Vasser to "drive, he's got a gun." As she stepped on the gas, Vasser looked over at the Cadillac and saw Irvin holding a nine millimeter handgun outside his window as he drove, with Elias in the passenger seat, leaning back. As Vasser's car accelerated through the light, Vasser and Cristo heard two or three gunshots.
Vasser continued speeding east on El Cajon Boulevard past both Celestine and Pope with Irvin still driving on her right in pursuit. Celestine, who had heard a "few pops" behind him, saw in his rearview mirror that the Cadillac was following Vasser's car, but then turned right at the next stoplight. Celestine called Vasser and Cristo on their cell phones to see if they were alright and Cristo called Pope to have him bring Bongato to the parking lot of his apartment complex in Chula Vista where the group was going to meet and get information on Elias to give to the police. When Cristo and Vasser got home, they noticed a bullet hole in Vasser's car that had not been there before which was about 18 inches from the passenger side door.
Responding officers interviewed the available witnesses at Cristo's apartment. Borro, who was on her cell phone with Bongato at the time, handed the phone to one of the officers to try to get a description of the suspects. Bongato essentially hung up on the officer, claiming she did not know who shot at Vasser's car and only provided Elias's first name without any contact information.
During the subsequent investigation, a bullet recovered from Vasser's car was determined to have been fired from a semiautomatic firearm, most likely a nine millimeter pistol. After the detective in charge of the investigation interviewed Bongato in person, Elias was finally located and arrested on September 6, 2006 in connection with these crimes. Although Irvin was identified as being with Elias the night of the shooting, he was not arrested until October 2006.
The Defense Case
Irvin testified in his own defense as well as presenting the testimony of a woman named Tamika Owens, who had witnessed shots fired from the passenger in a car "in the shape of a Cadillac" close to the time of the shooting charged in this case, basically claiming that it was Elias who had shot at Vasser's car.
In his own testimony, Irvin explained that Elias had telephoned him on the night of August 23, 2006, asking him for a ride to Effin's pub so Elias could pick up Bongato. When they arrived at the pub, Elias went inside to talk with Bongato while he talked with Cristo and Vassar outside. After going inside the pub a couple of times to see if Elias was ready to go, he noticed that Bongato and Elias were arguing and that he had also grabbed her arm to try to get her to leave the pub. When Elias and Bongato came outside the bar, a group of people whom Irvin had never met also followed outside, surrounding Elias. A confrontation ensued, with Cristo sucker punching Elias in the face without warning. After witnessing this, Irvin walked away to get his car.
When Irvin pulled his car up in front of Effin's, he got out and walked over to Elias, saying, "Come on, let's go. Let's go." Although Irvin eventually got Elias to leave with him without Bongato, Irvin heard Elias warn Cristo that he had "something for [him.]" Irvin denied he said anything to anyone in the group or that he ever used any words referencing a gun, such as "strap" or "heat."
As Irvin and Elias drove away from the pub, going west on El Cajon Boulevard, they stopped at a gas station on the corner of 63rd Street where Elias got out and used his cell phone. After a short time, Elias got back into the car and told Irvin to drive down 63rd Street. As he did so, Elias rolled down his window and fired two test shots in an alley off Stanley Avenue and 63rd Street. Irvin then made a u-turn and got back on El Cajon Boulevard driving eastbound. As he was driving, he pulled up next to a Ford Focus that Vasser was driving and Elias exclaimed, "Oh, there they go, right there." As Irvin looked over at Vasser's car, he noticed Elias's hand come across his face holding a semi-automatic gun. He then heard Elias say, "what now, bitch" and fire one shot. Surprised and scared, Irvin made a quick right turn away from Vasser's car and drove home.
On cross-examination, Irvin denied he had gone to his home nearby the pub after the confrontation to obtain a gun or that he had a gun. Nor did he recall telling a family member that both he and Elias had done the shooting. Irvin was then confronted with a tape recording of a telephone call from jail with his father, where he was heard to reply, "both of us," in response to his father's question, "Who was shooting?" Irvin conceded that he had told his girlfriend from jail that he needed to talk with Elias to get some stories straight. On redirect, Irvin explained that he had said, "both of us" because he was there when the shooting occurred and he also had some responsibility. On recross by Elias's counsel, Irvin acknowledged it was "fair to say" that he had gotten together with Elias "and devised this plan where he takes all the blame[.]"
Owens then testified that in the early morning hours of August 24, 2006, as she and her boyfriend sat outside her house on Stanley Avenue off of El Cajon Boulevard, she saw a dark-colored Cadillac shaped car with two people inside drive down her street with the passenger side facing her. As the car passed them, Owens saw "two flashes" and heard "two pops" coming from the passenger side and immediately called the police.
DISCUSSION
I
DENIAL OF NEW TRIAL MOTION
In three related arguments, Irvin contends that the trial court erred in denying his motion for a new trial. First, he contends the court should have granted his motion because of a discovery violation, which constituted prosecutorial misconduct. Secondly, he claims in the alternative that the court should have granted his motion due to the ineffective assistance of his trial counsel. Lastly, as another alternative, he asserts the trial court erred in failing sua sponte to hold an in-camera hearing under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) to determine whether he should have new counsel appointed for the purpose of filing a new trial motion. After setting out the background leading up to the new trial motion and its denial in some detail, and the applicable law, we will address and reject each of Irvin's contentions.
A. Background
As noted above, during Irvin's cross-examination, the prosecutor asked him whether he recalled telling a family member that he did the shooting. When Irvin said, "No," and that he was sure, the prosecutor asked him if he recalled telling a family member, "we did this shooting," or whether he could have made the statement. In response to further questioning, Irvin essentially said he had no recall regarding the statement, "had no reason to say that," that "[t]hat would be a lie," and he had no reason to lie to his family. The prosecutor then specifically asked Irvin whether he recalled having a conversation with his family on October 30, 2006, in which someone named "Dad" asked him "who did the shooting" and he responded, "the both of us," or whether he told any family member that "both of us were shooting." After Irvin again said he could not remember any such conversation, the prosecutor asked if Irvin had called his home around 8:45 a.m. on October 30, 2006. Irvin responded that he could have and agreed the call would have been recorded. Irvin again denied he had told his father that both of them were doing the shooting.
At the end of the day, after the court excused the jury and asked counsel if they had any matters that needed to be discussed, the prosecutor advised the court he had something to address the next day concerning a jail tape that had been transcribed "that deals specifically with the questions I was asking about whether [Irvin] stated that he admitted to doing the shooting, and specifically that he was asked 'who was shooting?' [a]nd his response was, 'both of us.' " It was the prosecutor's intent to play that portion of the tape on his recross. In this regard, the prosecutor noted he had already supplied the electronically recorded phone calls in the jail to both counsel, but had not provided them with a transcript as one had just been prepared. He explained he had had no intention of using the calls in his case-in-chief, so preparation of the transcript was not started until it was certain that Irvin would testify.
When the prosecutor stated he would supply both counsel with the transcript so they could "iron out the redactions," Irvin's counsel asked "when the transcripts would be ready?" The prosecutor responded that he had the two pages he wanted to use and could make copies for the court and counsel, as well as providing the exact location on the tape for listening purposes. In reply to the court's next inquiry, the prosecutor noted that the date of the conversation he wanted to play was on October 30, 2006, at 8:45 and that it was at "2.12[ or] two minutes, 12 seconds into the tape on that particular tape." The court requested the prosecutor give counsel copies of the transcript "at some point, whether it's at the recess or first thing tomorrow morning."
The next day, after the court denied Elias's motion for a mistrial and for severance based on being prejudiced by association with Irvin, Irvin's counsel stated that he had the relevant pages of the transcript of the tape recording about Irvin telling his girlfriend something about getting the story straight and also about Irvin telling his father "both of us" in response to who was shooting. Counsel also noted that "the explanation comes after that, which would also be relevant."
Irvin's counsel then explained that he had given the tapes to his investigator to go through them all and "[s]he said she didn't get any tape regarding the father. She said she went through all the ones with [Irvin's girlfriend], and she gave the summary of what were on those tapes. I didn't see anything damaging at all. This is news to me about his father's call." Counsel further explained that Irvin had had another attorney before him who had given him information on this case and that the prosecutor was "kind enough to let me come in and gave me about another inch full of material that I had not seen, but, of course... with the tapes, you don't know what is on [them] because they are huge on the DVD."
When the court asked if Irvin's counsel was requesting anything from the court or just making a statement, counsel replied, "I don't think there is anything the court can do... of course, you are going to give the instructions to the jury [that t]he questions are not evidence...." The court then stated for the record that because it had not been aware of any statements made by Irvin that may become an issue at trial until the day before, it was not familiar with where the prosecutor was going and without so knowing it was difficult for it to rule on any objections concerning the matter.
In response, the prosecutor explained that when Irvin's counsel took over this case from the former counsel, he told him that he would probably need a continuance to have sufficient time to review all of the jail phone calls which contained "some very incriminating details... that the People would probably use if [Irvin] testified or character witnesses [testified on Irvin's behalf]." The prosecutor turned over separate copies of those tapes, which were dated and time stamped and noted the telephone number to which the calls were made by Irvin. The prosecutor said he addressed the issue again when Irvin's counsel came to his office and he "actually referenced this one, of these two portions that I indicated I potentially would play." The prosecutor decided not to use it in his case-in-chief so as to avoid an "Aranda-Bruton" issue.
The prosecutor, who had had copies of the relevant transcript portions with his suggested redactions made, then handed them out so both defense counsel and the court could have working copies for any further redactions or comment. When Irvin's counsel asked if this were something new, the prosecutor told him it was "what you had on your [disc]." When the prosecutor explained he had the CD of the tape cued to the correct location so the court and parties could listen to it before it was played to the jury, Irvin's counsel agreed that they "might as well hear it."
Before the tape was heard, the court asked the prosecutor to clarify when the discovery of the taped conversations had been provided to Irvin's counsel. The prosecutor explained that all of the calls were supplied to Irvin's counsel when he took over the case in April 2007, and he came to the prosecutor's office in May where they reviewed all the issues and he opened up his files and permitted Irvin's counsel to pick "out a whole series of things he indicated he didn't have." When Irvin's counsel indicated to the prosecutor he had the tapes but did not think that listening to them would cause any delay in the case, the prosecutor told him that because there were "hundreds of them," he did not believe counsel "would be able to review them in the period of time [originally set for trial]." The prosecutor represented to the court that "in fact this case was continued a number of months" and that "these phone calls were turned over to both parties... quite some time ago."
When the court then asked Irvin's counsel if he wished to be heard regarding the proposed transcript, counsel replied, "No.... I didn't listen to all the tapes, but I did get authorization from PCC [(Private Conflicts Counsel)] to have an investigator do it. And I showed them to the [woman] that did it, and she can come in and tell the court that the tapes that she got from me, there wasn't anything from the father on there. It was all [Irvin's girlfriend's] tapes." Irvin's counsel represented that the prosecutor had told him when asked for any transcripts, that he would get them eventually. Counsel claimed he had had "no prior warning of what is on [the transcripts just handed out by the prosecutor.]" Nonetheless, in response to the court's inquiry, Irvin's counsel said he would stipulate to the redacted portion of the transcript of the tape and would possibly stipulate to the voice being Irvin's for foundational purposes after hearing the tape.
After Irvin resumed his testimony, under cross-examination by Elias's counsel, he denied firing a gun on the morning of August 24, 2006. When counsel then asked whether he remembered telling his father over the phone that he had fired a gun, Irvin responded, "No. My father, he asked me who was shooting. I said, 'Well, both of us.' Because they are saying both of us shot and after that I told him, I said -- he asked me did... I tell the police that my friend did it. I said, 'No, I haven't got a chance to do that, because up until now nobody has really heard me speak.'" Irvin added that when he talked to his father he told him that both were involved in the shooting because he was driving the car even though he "didn't have anything to do with the actual pulling the trigger...."
During recross, in response to the prosecutor's question why he previously testified he never told his father "we did the shooting," Irvin said he did not say those words but rather only said "both of us" in reply to his father's question of "who" did the shooting. After Irvin then admitted that it was his voice and his father's on the recording from October 30, 2006, and that it concerned this case, the relevant redacted portion of the call was played for the jury.
On redirect, Irvin again explained that when he talked to his father he was only saying "both of us" because he was there and was accepting partial responsibility for the shooting. Irvin claimed he had not known he was being charged as the shooter until his arraignment, when the prosecutor "came storming in the room, looked at [him], embarrassed [him] in front of the whole courtroom and said, 'he was the shooter, he did this, he had a.9 millimeter. He shot at this person.'" Irvin said this was the first time he had been able to tell anybody that he was not the shooter.
After the close of the defense case, when the prosecution sought to move into evidence the audio portion of the recorded conversation heard by the jury, Irvin's defense counsel stated he had no objection. The transcript of the recording, however, was not entered into evidence.
It appears the tape of the conversation with Irvin's girlfriend about Irvin's intent to talk to Elias to get their stores straight, which was marked Exhibit 27, was inadvertently the exhibit admitted into evidence instead of the relevant tape, Exhibit 26.
A month after the jury returned its verdicts, Irvin's counsel filed a motion for new trial on grounds "that the [prosecutor] has been guilty of prejudicial misconduct, the verdict is contrary to law and evidence, and new evidence is discovered material to the defendant." In support of the motion, counsel filed points and authorities, his declaration and a letter to him from his investigator. Counsel explained in the points and authorities that Irvin had another felony case pending, No. SCD202353, which concerned a domestic violence case involving Irvin's girlfriend and was trailing, when he went to trial in this case, No. SCD201413. Counsel claimed the prosecutor committed misconduct, or there was newly-discovered evidence, because the label on the CD containing Irvin's telephone conversation with his father was marked No. SCD202353, the domestic violence matter, instead of No. SCD201413.
Counsel alleged that because of such prosecutorial mislabeling, his investigator could not find the pertinent recording. Counsel stated that "[i]n hindsight," he should have noticed that the recording covered the time period relating to the charges in this case, but he was preparing for trial so he had his investigator go through the CD's of the numerous phone calls. Alternatively, counsel claimed that if the prosecutor had not misidentified the tapes, because he received them from Irvin's previous attorney, then the pertinent taped conversation "would be new evidence material to the defendant."
In his supporting declaration, Irvin's counsel stated "[he] was not aware of Mr. Irvin's statement on the telephone, 'Both of us,' until the trial itself and after the direct examination of Mr. Irvin. After the trial I supplied a tape that was marked SCD202353 to my investigator who advised me that 'Both of us' was on that tape. I have no knowledge as to who marked the tape [S]CD202353."
The investigator's letter to Irvin's counsel noted that the investigator had met with Irvin's previous attorney "to attempt to determine the source of the [labeling on the pertinent disc cover], as it does not present itself as a standard issue discovery item provided by the district attorney's office." The previous attorney did not recognize the handwriting on the disc cover as being his own or any of his employees and agreed it did not look like the discovery normally produced by the People.
In his written opposition, attached declaration and documents, the prosecutor noted that although Irvin was the suspected driver and shooter in this case, it was not until he attacked his girlfriend on October 21, 2006, that the police were able to locate and arrest him and charge him in both cases. While in custody, Irvin began a series of telephone calls, from October 25, 2006 to February 9, 2007, to his girlfriend's number at (619) 741-2748. The jail recordings of these calls were placed on two separate compact discs and released to both Irvin's and Elias's defense attorneys. At the time of that initial release, documents signed by Irvin's former attorney show that both discs were marked with this case number, SCD201413.
On March 13, 2007, Irvin's current defense counsel was appointed to represent him in both this case and the domestic violence case which were set for trial on the same date. Before his appointment, current counsel was advised about the extensive recordings relating to Irvin in the instant case and specifically asked for additional time to review the discovery when he accepted the appointment. Counsel then met with the prosecutor at the district attorney's office in early April 2007 to review all the discovery and indicated he had the phone calls between Irvin and his girlfriend, which the prosecutor informed him were potentially incriminating and contained both admissions by Irvin as well as his perceptions about the pending litigation where he was the suspected shooter. Subsequently during in limine motions, the court granted Irvin's counsel's request that any facts relating to his domestic violence case be excluded from this trial and the prosecutor represented that any conversations on the tapes involving Irvin's girlfriend would not be used in the case-in-chief.
Based on the above facts, the prosecutor argued there were no grounds for a new trial because the evidence on the tapes did not qualify as newly discovered evidence, the evidence was not exculpatory, and the prosecution had complied with its statutory obligations by providing the defense with all of Irvin's statements, including the recording of the conversation between Irvin and his father about the shooting that was made to his girlfriend's number.
At the October 3, 2007 hearing on the matter, the court noted it had read and considered the moving and opposing papers, that both counsel agreed Irvin's current attorney had the subject CD's before trial, that the pertinent CD received by current counsel did not contain the present case number, and that the prosecutor had advised current counsel that some of the calls pertained to this case.
Irvin's attorney explained that although there was no dispute that the prosecutor or former attorney did give him the tape in question, the problem was that it was not identified by this case number but rather by Irvin's other pending case number and he only asked his investigator to listen to the tape identified with this case. Counsel acknowledged that the prosecutor had been "kind enough" to make sure he had all the discovery in this case and to warn him about the recordings, but said if he had listened to the other CD that had been mislabeled or had had the transcript of the pertinent portion before it was introduced at trial, he could have alerted co-counsel for Elias to bring an Aranda-Bruton motion to exclude the statement as to Elias, or he could have advised Irvin that the statement was there so he could better determine whether to take the stand or whether to claim he never had such a conversation with his father.
The court then recited its understanding of what had happened and noted that even assuming the disc mislabeling, Irvin's counsel had conceded that the prosecutor's representations were accurate that he had attempted on more than one occasion before trial to warn Irvin's counsel that there were comments on even the domestic violence case labeled disc that related to this attempted murder case. Based on these facts, it was the court's impression that when Irvin took the stand and testified repeatedly that he never made those statements that Irvin's counsel must not have known they existed on the tapes. The court had even commented during a break to one of its staff members that defense counsel must not have known about the statements, because if he had known, it was "not sure why he let his client get on the stand and say the opposite." However, the court noted in general that an attorney cannot prohibit a client from doing anything and could only give the client his or her best advice.
Having made these initial comments, the trial judge then stated:
"I guess the question becomes, and it's not raised here, and I'm not prepared to say this was ineffective assistance of counsel because [Irvin's defense counsel] didn't hear that and did not know about that.... That's not been raised. It's not been argued here, but even if it was argued before this court, I must say for the record that I'm not prepared to reward Mr. Irvin for getting on the stand and lying. That's sort of what [defense counsel is] asking the court to do is give [Irvin] a new trial because he was caught lying. And I don't know that the pursuit of justice requires this court to do that. [¶] Now, would he have taken the stand had [defense counsel] advised him not to? [Counsel has] argued to the court... apparently he didn't know that he had said that. Well, I'm not prepared to accept that representation. I think in this case, as I see in the probation report, Mr. Irvin has said things to the probation officer that were inconsistent with the facts that came out here in this trial. I don't think Mr. Irvin has been forthright in this case throughout. But that is not the issue before the court."
The court then returned to the matter before it, which was whether there was a violation of the discovery statutes, asking the prosecutor for his comments. In addition to specifically pointing out the discovery receipts attached to his opposition papers which showed that when the CD's were turned over to Irvin's counsel's predecessor and Elias's defense counsel they both were identified under this case number although they also referenced the domestic violence case, the prosecutor summarized the other exhibits to his opposition and again outlined the conversations he had had with Irvin's counsel regarding warning him about the potentially incriminating statements on the CD's. After discussing in detail the disclosure of and his trial strategy about the recording and transcript, the prosecutor again argued Irvin's motion for new trial should be denied because there was no discovery violation, the evidence was not newly discovered, and that even if it arguably was newly discovered, there was no reasonable probability of a different result on retrial because the evidence was not exculpatory.
After stating it had been satisfied at trial that the pertinent statements on the CD's had been disclosed before they were played and Irvin's counsel had conceded that he had had the relevant CD before trial, the court found there had been no discovery violations. In so finding, the court explained, "[t]he statute only requires that the People provide what they have within their custody and control or any investigating agency has. The statute does not require the People to interpret that for the defense, only that they provide it to the defense. It appears, in this court's view, the People went above and beyond that to try to make sure that, in a effort to be fair, that counsel was aware that there may have been incriminating information contained in the discovery that was provided. That's a step beyond what the law requires. So the court does not find any discovery violations."
The court also found that "[a]s relates to whether or not this is new evidence, it does not appear to the court that it is new evidence in any sense. It may be new as relates to the first time that one has reviewed it, but it appears that it has been known to all parties, been available to all parties, within reach of all parties with any diligence as relates to preparation for trial. And as a result, the court does not find it to be new evidence."
When the court asked Irvin's counsel if he had any more to say regarding the matter, counsel first said "no," and then noted he understood the court's ruling even though neither his predecessor counsel nor his investigator who had listened to the tapes had indicated there was anything incriminating on the one correctly identified with this case. Counsel then asked the court about the ground in his new trial motion that the verdict was contrary to law and evidence, asking it to "play the 13th juror on that." In response, the trial judge stated:
"I want to summarize by having the record reflect notwithstanding the court's ruling as relates to discovery and newly discovered evidence, even if the court had concluded that there was some violation, I suppose it would behoove the court to ask whether or not there would have been a different outcome notwithstanding those. [¶] Based upon this court's analysis of the facts that came out in trial, the evidence was overwhelming that Mr. Irvin committed these offenses. He was the shooter in this case. And whether or not he testified or did not testify, whether that had come out or not come out, I don't think there would have been a different result. [¶] And having said that, I... don't think that the verdict is contrary to the evidence that was presented to the court."
The court then gave additional reasons for not striking, dismissing or reducing the verdicts, denied any request to mitigate the verdicts and findings, and for all the above reasons, denied Irvin's motion for new trial.
B. Pertinent Law
When a verdict has been rendered or a finding made against the defendant, he may move for a new trial on various statutory grounds, including, as pertinent here, that the trial court "erred in the decision of any question of law arising during the course of the trial, and when the district attorney or other counsel prosecuting the case has been guilty of prejudicial misconduct during the trial thereof before a jury." (§ 1181, subd. (5).) In addition to the statutory grounds (§ 1181), a new trial may be granted where the trial court finds that the defendant received ineffective assistance of counsel. (People v. Fosselman (1983) 33 Cal.3d 572, 582-583.)
However, a motion for new trial may be granted "only upon a ground raised in the motion. [Citations.] '... Allowing a court to grant a new trial on a ground not raised by the moving party would be the equivalent of allowing the court to grant a new trial on its own motion, an act which the court is without authority to do. [Citations.]" (People v. Masotti (2008) 163 Cal.App.4th 504, 508.) In addition, even if a certain ground is found to be valid, "[a] trial court may grant a motion for new trial only if the defendant demonstrates reversible error. [Citation.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1159 (Guerra).)
"On appeal, a trial court's ruling on a motion for new trial is reviewed for abuse of discretion. [Citation.] Its ruling will not be disturbed on appeal ' "unless a manifest and unmistakable abuse of discretion clearly appears." [Citation.]' [Citation.]" (Guerra, supra, 37 Cal.4th at pp. 1159-1160.) This standard "asks in substance whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts [citations]." (People v. Williams (1998) 17 Cal.4th 148, 162.) The burden is on the defendant to show that the trial court's decision was " 'irrational or arbitrary,' " or that it was not " 'grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.' [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.)
With regard to a claim of prosecutorial misconduct based upon a discovery violation, federal due process requires the prosecution to disclose even without a request evidence favorable to the accused, which relates to either guilt or punishment. (Brady v. Maryland (1963) 373 U.S. 83, 87 (Brady).) This duty to disclose pertains to all evidence material to the defense and encompasses exculpatory as well as impeachment evidence. (United States v. Agurs (1976) 427 U.S. 97, 107; United States v. Bagley (1985) 473 U.S. 667, 676.) "[E]vidence is material 'only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.' " (People v. Hoyos (2007) 41 Cal.4th 872, 917-918.) The defendant has the burden of showing the materiality of any evidence. (In re Sassounian (1995) 9 Cal.4th 535, 545.)
The prosecution also has a statutory duty to disclose to the defense all statements made by the defendant (§ 1054.1, subd. (b).) This disclosure generally must be made at least 30 days before trial. (§ 1054.7.) When a party fails to comply with statutory discovery, the opposing party must make an informal request for discovery before seeking other relief through the court. (§ 1054.5, subd. (b).) Upon a proper showing, the court may then make any order necessary to enforce discovery, including "immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order." (Ibid.) The court may also give the jury an instruction advising it of the violation or exclude the evidence if "all other sanctions have been exhausted." (§ 1054.5, subd. (c).)
With regard to the ground of ineffective assistance of counsel, "a defendant must show both that his counsel's performance was deficient when measured against the standard of a reasonably competent attorney and that counsel's deficient performance resulted in prejudice to defendant in the sense that it 'so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' [Citations.]" (People v. Andrade (2000) 79 Cal.App.4th 651, 659-660.) "If the record... fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must [generally] be rejected on appeal." (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Even if there could be no satisfactory explanation for counsel's failure, " 'the reviewing court should not speculate as to counsel's reasons.... Because the appellate record ordinarily does not show the reasons for defense counsel's actions or omissions, a claim of ineffective assistance of counsel should generally be made in a petition for writ of habeas corpus, not on appeal.' [Citation.]" (People v. Lucero (2000) 23 Cal.4th 692, 728-729.)
Moreover, because a claim of ineffective assistance of counsel made in a new trial motion differs from one made for the first time on appeal, we usually defer to the trial court's initial determination as to whether trial counsel's tactical "acts or omissions were those of a reasonably competent attorney." (People v. Jones (1981) 123 Cal.App.3d 83, 89.) This is because the trial court is generally in the best position to make such determination based on having observed counsel's performance throughout the proceedings. (Ibid.)
C. Analysis
Here, Irvin's new trial motion was brought on three statutory grounds: prosecutorial misconduct for a discovery violation (§ 1181, subd. (5)), the verdicts and findings are contrary to the law or evidence (§ 1181, subd. (6)), and newly-discovered evidence (§ 1181, subd. (8)). On appeal, Irvin does not challenge the court's ruling as to its determinations that the verdicts and findings were not contrary to the law or evidence or that the evidence was not newly discovered. Rather, he only challenges the court's denial as to its finding of no discovery violation constituting prosecutorial misconduct and to its purported determination there was no ineffective assistance of counsel.
Regarding Irvin's claim the court erred in denying his new trial motion on the grounds of prosecutorial misconduct due to federal and statutory discovery rights violations, the claim fails. As the trial court properly found, the record clearly shows the prosecutor complied with his constitutional and statutory duties by providing all discovery and recordings to the defense well before trial in this case. Irvin's counsel conceded as much at the new trial hearing. The prosecutor also fulfilled his duty to provide a transcript of the conversation to the defense at the time it was introduced into evidence and played for the jury. (Cal. Rules of Court, rule 2.1040(a).) Although he had no obligation to provide the transcript at an earlier time, the prosecutor did so in this case so that redactions agreeable to the defense could be made. As the court properly found, the prosecutor had no additional duty to assist the defense with its investigation and trial preparation. (See People v. Fauber (1992) 2 Cal.4th 792, 828-830.)
Further, as the People point out in their respondent's brief, Irvin's new trial motion did not really allege nondisclosure, but instead alleged prosecutorial misconduct based on the mislabeling of a CD that contained Irvin's incriminating statements. Irvin's counsel, however, did not ask the court below for a continuance or any relief to cure or admonish the jury about Irvin's statements before they were introduced even though the court expressly asked counsel whether he was requesting such relief. In light of this conduct and the evidence before the court for the motion, specifically the receipts showing that the prosecutor had provided the CD's with the current case number on them and the letter by the defense investigator, which stated it was unknown how the CD's had become mislabeled and acknowledged they were not in the normal covers provided for such evidence by the district attorney's office, the court's implied finding that there was no prosecutorial misconduct shown regarding the turning over of the CD's to the defense is supported by the record. Thus, we cannot find on this record that the trial court abused its discretion in denying Irvin's new trial motion on grounds of prosecutorial misconduct regarding the discovery of the conversation between him and his father that was used for impeachment.
Moreover, contrary to Irvin's representations in his brief on appeal, the record reveals he did not seek a new trial based on the ground of ineffective assistance of counsel and the court did not deny the motion on that ground. Although the trial court raised the issue in passing while addressing the grounds Irvin had stated and argued in his motion, it appears the court was merely giving its "off-the-cuff" impressions regarding such matter before turning to the grounds properly before it. Therefore, we believe it would be pure speculation on our part to attempt to discuss Irvin's claim of ineffective assistance of trial counsel raised for the first time on appeal. As the trial court noted, such issue was not raised, argued or developed below and Irvin has not filed a petition for a writ of habeas corpus doing so at this time. We thus decline to address Irvin's alternative contention that his trial counsel was ineffective for failing to "discover" the taped telephone conversation between him and his father regarding the shooting and that such ineffectiveness caused him prejudice.
Similarly, we decline to address Irvin's additional alternative claim that the trial court had a duty to conduct a Marsden hearing before ruling on the new trial motion. Irvin's assertion is based on the premise his new trial motion was brought on grounds of ineffective assistance of counsel. As noted above, it was not. Even after the court raised the issue in passing, neither Irvin or his counsel sought to amend the motion before the court to include such ground. Nor did Irvin at any time ask for new counsel or express any dissatisfaction with his trial counsel. Under these circumstances, we need not engage in the mental aerobics that Irvin would have us do to reach his Marsden issue.
In sum, Irvin has failed to meet his burden of showing that the trial court abused its discretion in denying his new trial motion on the grounds presented.
II
CORRECTION OF ABSTRACT OF JUDGMENT
The People agree with Irvin that the abstract of judgment incorrectly reflects stays for four section 12022.1, subdivision (b) "on-bail" enhancements which were never alleged nor found true by the jury. Because the abstract of judgment also does not reflect Irvin's four enhancements for firearm arming within the meaning of section 12022, subdivision (a)(1) for which the jury found true and the transcript of the sentencing shows the court imposed and stayed, we believe the abstract contains inadvertent clerical errors which we are authorized to correct on appeal. (See People v. Mitchell (2001) 26 Cal.4th 181, 185-186; People v. Brown (2000) 83 Cal.App.4th 1037, 1039, 1046-1047; People v. Hong (1998) 64 Cal.App.4th 1071, 1084-1085.)
We therefore order that the clerk of the superior court amend the abstract of judgment to reflect the imposition and stay of the four firearm enhancements under section 12022, subdivision (a)(1) and delete reference to the four section 12022.1, subdivision (b) enhancements.
DISPOSITION
The clerk of the superior court is directed to modify the abstract of judgment in accordance with this opinion and to forward a certified copy of the amended abstract to
the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
WE CONCUR, BENKE, Acting P. J., O'ROURKE, J.