Opinion
F076780
05-21-2020
THE PEOPLE, Plaintiff and Respondent, v. DIJONTE LEE JOHNSON, Defendant and Appellant.
Law Office of Nicco Capozzi and Nicco Capozzi for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and F. Matt Chen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F12906062)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff, Judge. Law Office of Nicco Capozzi and Nicco Capozzi for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and F. Matt Chen, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Dijonte Lee Johnson was charged with first degree murder (Pen. Code, § 187, subd. (a)) in the shooting death of Jamil Muhammad on August 10, 2012, in the parking lot of a gas station convenience store. Defendant was found guilty by a jury, and the jury also found true a firearm and a gang enhancement allegation (§§ 12022.53, subd. (d), 186.22, subd. (b)(1)). Defendant admitted a prior serious felony in a bifurcated proceeding. Prior to sentencing, defendant's trial counsel was relieved by order of the court so that new counsel could be appointed to file, at defendant's request, a motion for a new trial based on ineffective assistance rendered by defendant's trial counsel. After the motion was filed and a hearing was held, the motion was denied, and the court sentenced defendant to an aggregate term of 75 years to life as follows: 25 years to life for first degree murder (§§ 187, subd. (a), 190, subd. (a)), doubled under the "Three Strikes" law to 50 years to life (§ 667, subd. (e)(1)), and a consecutive 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)). The trial court imposed and then stayed a 10-year sentence for the gang enhancement.
Defendant was also charged with the crime of street terrorism pursuant to Penal Code section 186.22, subdivision (a), which was later dismissed. All further statutory references are to the Penal Code unless otherwise stated. --------
On appeal, defendant claims his trial counsel rendered ineffective assistance and that his subsequently appointed counsel was likewise ineffective in filing a motion for a new trial. The People dispute that either of defendant's counsel rendered ineffective assistance. We agree with the People, and we affirm the judgment.
FACTUAL SUMMARY
I. The Shooting
At approximately 10:30 p.m. on August 10, 2012, at a gas station and convenience store in Fresno, defendant was seen with a man, later identified as Bryant Jeffreys, entering the store. Two other men, Jovan Beard and the victim Jamil Muhammad, also entered the store; defendant and Jeffreys exited the store and stood near a car in the parking lot adjacent to the store. Beard and Muhammad exited the store a few moments later, and surveillance video and witness testimony indicated Beard and Muhammad walked toward defendant and Jeffreys. One witness described an argument among the four where Beard told Muhammad to "just go" and defendant responded "fuck that," pulled out a gun, and shot Muhammad three times. Witnesses at the store, as well as surveillance video at the location, indicated Jeffreys and defendant immediately ran away while others called 911.
Officers responded and paramedics took Muhammad to the hospital where he later died from gunshot wounds in his head and chest. No gun was found on Muhammad or at the scene, and no shell casings were recovered. Officers obtained and reviewed the convenience store's surveillance video, which had captured video inside and outside the store at the time of the incident. Two witnesses were able to describe the shooter who was then identified as defendant. Police executed a search warrant at the apartment of defendant's father where they uncovered gang-related drawings and writings among defendant's things. Defendant was later arrested and brought into custody. During a subsequent interview conducted by detective Ignacio Ruiz, defendant denied having had a gun or shooting anyone at the convenience store on the night of the incident.
II. Pretrial Proceedings
Defendant was arraigned on August 15, 2012, and an amended felony complaint was filed in December 2012 charging defendant with murder coupled with gang and firearm enhancements, and a charge of street terrorism. The preliminary hearing was continued multiple times for various reasons upon requests made by both parties; it was ultimately held on May 1, 2013, at which time the court ordered that defendant be held to answer the charges. An information was filed on May 3, 2013. A trial was tentatively set for September 26, 2013, but continuances by both parties were requested from 2013 throughout 2016. Some of the continuances were based on the availability of discovery, witnesses, and counsel. In November 2014, the trial was continued because defense counsel was hospitalized. In June and July 2016, defense counsel was ill again, and continuances were granted. Additional continuances were granted due to defense counsel's medical issues in January and February 2017. In February 2017, the court was apprised defense counsel had undergone an angioplasty and a heart stent implant; the trial was reset to March 14, 2017. On March 9, 2017, defense counsel appeared and asked to continue the trial to March 28, 2017, due to his medical issues. On March 28, 2017, defense counsel was ill and could not appear. On March 29, 2017, defense counsel appeared, explaining he had a bad cold; the parties requested to trail the trial until April 10, 2017, due to witness scheduling issues.
On April 10, 2017, defense counsel was sick with bronchitis, and the trial was continued one day. On April 11, 2017, defense counsel appeared, and trial proceedings commenced. On April 17, 2017, a special appearance was made for defense counsel, and it was reported that he was ill with food poisoning; the trial was continued for one day. On April 18, 2017, the trial resumed with initial jury instructions, opening statements, and witness testimony. There were no more continuances, the trial proceeded, and a verdict was reached on April 26, 2017.
III. Trial Evidence
A. Prosecution's Case
1. Percipient Witnesses and Video Recordings
Around 10:30 p.m. on the evening of August 10, 2012, David M. was with his father when they pulled their car into a gas station and convenience store. While his father fueled the vehicle, David left the vehicle to make a purchase inside the store. As he walked from the gas pumps to the store, he heard a commotion, which he was watching out of the corner of his eye—he saw four people in the parking lot, and he thought they were arguing. He heard someone say "just go," and it looked as though the victim was turning to leave, but the shooter said "fuck that," pulled his gun out and shot the victim. As soon as David heard the first shot, he took off running for cover behind another car. Once the gunshots ceased, the shooter and the person he was with took off running, and David ran back to his father's vehicle to make sure he was okay; then David called 911. In their vehicle, David and his father attempted to follow the shooter and his friend, but they lost sight of them. David had never seen the shooter before, and he did not know anyone involved in the incident. He described the shooter as wearing a dark-colored shirt, he had jeans and a hat on, and he was a Black male. He thought the gun used had a "snub nose." On the stand, David identified defendant as the shooter. Defense counsel cross-examined David, who indicated he could not remember the words spoken during the argument he had heard; while he was not far away from the shooting, he could not remember in which hand defendant held the gun, and when the shots were fired David sought shelter behind a car, but he looked out from behind the vehicle.
Tia M. was also in the parking lot at the time of the shooting with three of her friends; they were all in her car. They had stopped to get alcohol and had parked in front of the convenience store. As they were parked in front of the store, two Black males approached the car. One of the men stopped at the passenger side to talk to Tia's front-seat passenger. The person this man was with waited by the door of the store, and then they walked into the store. Subsequently, the two men came out of the store together, they walked to the left of Tia's car, and then she heard one "big boom" coming from where the two men had just walked. Although interviewed by officers after the shooting, on the stand Tia denied remembering much of what she had told them or what she had seen. She did recall telling officers about the person who had approached her car, and that she had recognized people from the store surveillance recordings. She denied telling officers she thought the four men who came out of the convenience store were going to fight and then a gun was pulled out. She testified instead she just wanted to get her car back, and she did not hear the altercation or anything going on because she was sitting in her car at the time.
Marina M. was on the corner near the convenience store with her sister buying food at a taco truck at the time of the incident. While they were at the taco truck, three men walked past her—two were Black, and one had a lighter complexion. She did not watch where they went, but a few minutes later she heard four or five gunshots in the vicinity of the store. The two Black men she had seen walk past her earlier then came running past her after the gunshots. When she was interviewed by detective Ruiz, he showed her video from the convenience store at the time of the shooting. She was able to identify the individuals in the video as the men she had seen walking and the same two who had run past her after she heard the gunshots. On cross-examination, she indicated she could see the door of the convenience store from the taco truck, although she could not recall what the distance was between them. The shots she heard were fired in rapid succession, and it was about five minutes between when she saw the individuals walk past her and when she saw two of the same individuals run past her after the shooting. She ate food at the truck, and then went to talk to the investigating officers at the scene, which she estimated was 30 minutes later.
Jagdip S. was working behind the counter of the convenience store at approximately 10:30 p.m. on August 10, 2012. When he heard gunshots and saw people running, he called 911. He supplied officers with the store's surveillance video that had captured recordings inside and outside the store at the time of the shooting. He also watched the videos the night of the incident and, during his testimony, he confirmed the videos shown to him by the prosecutor fairly and accurately represented the videos he had viewed that night. The store's video recordings were then entered into evidence and played for the jury.
The first video, the People's exhibit No. 76, showed the inside of the store on the night of August 10, 2012, at approximately 10:22 p.m. The video shows Jeffreys and defendant entering the store, and then Beard and Muhammad also enter the store. Muhammad can be seen in the camera pulling up his shirt from his waistband to wipe his face or his nose. The video also shows Jeffreys and defendant exiting the store, and then Muhammad and Beard also exit the store a few moments later. The second video, the People's exhibit No. 75, shows the gas pumps outside the store a bit before 10:30 p.m. on the night of the incident. The third video, the People's exhibit No. 74, shows the parking lot in front of the store.
Nathan Smith testified about magnification and color corrections that were made to the videos to increase brightness levels and visibility of the picture. He testified he had not manipulated the contents in any way in making the visibility and magnification adjustments. Jeff Hall, the owner of the forensic video company, had originally worked on the videos in the case but passed away before trial. Smith took over for Hall and reviewed the work Hall had done on the project, and what modifications or alterations Hall had made to the videos. Defense counsel did not cross-examine Smith.
2. Officers and Investigators at the Scene
On the night of the incident, officer Justin Baroni was dispatched to the scene, where he found a male victim lying on the ground; he saw injuries to the victim's face, the victim was unconscious, but Baroni was able to detect a slight pulse. The ambulance appeared shortly thereafter. He did not find any weapons on the victim, and a general scan of the area revealed none.
Officer Michael Peterka also responded to the crime scene, and then went to the hospital to check on the status of the victim. He returned to the scene to search the parking lot, but he found no shell casings, indicating to him the weapon used was a revolver or the casings had been picked up.
Officer Kyle Kramer also responded to the scene and was approached by Marina. She told him she had seen the suspects involved while she had been at the taco truck near the store. She had seen the suspects walk by her prior to the shooting, and then she had watched them run past her again after the shooting. She indicated there had been three people walk by her as a group while she was at the taco truck—two Black males and one man with a lighter complexion. After the shooting, the two Black males ran past her at the taco truck. She remembered one of the two had been wearing a red shirt with stripes.
When lead detective Ruiz arrived at the store that night, he had on-scene briefings and then walked through the store's parking lot—he did not find any shell casings. The lack of casings indicated to him the gun used was a revolver. He also watched the store's surveillance recordings. Later that night and into the next morning, he interviewed other witnesses at police headquarters. He interviewed Tia at approximately 6:00 a.m., and she described the gun she saw as a black handgun; she identified a photograph of defendant as the shooter she had seen in a black shirt. She told Ruiz that Jeffreys, whom her friend in the car knew as BJ, had approached her car before the shooting, and he had been wearing a red/blue striped shirt. Her friend told Tia she knew "BJ" from social media, and that he was with the Dog Pound gang. Jeffreys's friend was wearing a black shirt, white undershirt, black hat, and jeans. After Jeffreys was finished talking to Tia's friend, Jeffreys and his friend went into the store together. According to Tia, they were not in the store long, and then came out and were standing outside when two other men came out of the store. She thought the four were going to fight, but then Jeffreys's friend pulled out a gun, shot the victim, and then Jeffreys and the shooter took off running. Ruiz also interviewed Bryant Jeffreys at Jeffreys's residence the following day; Jeffreys provided Ruiz with articles of clothing, including a red-striped shirt and red baseball cap.
Ruiz also had a conversation with Marina; she told him she had seen two Black males and another individual pass by her at the taco stand before the shooting. Upon watching the video, she indicated the Black male wearing a black shirt, black hat, and white undershirt and a second Black male wearing a red-striped shirt with a red hat were two of the men who walked past her at the taco truck before the shooting, and they were the two men who had run past her after the shooting. She did not say she recognized these men as people she knew, and she did not refer to them by name.
3. Search, Arrest and Interview of Defendant
Sergeant John Viveros executed a search warrant at defendant's father's apartment on August 12, 2012, where it was believed defendant lived. Upon a search of the apartment, Viveros found defendant's belongings in a closet located in the living room, which included some writings with defendant's name on it; the word Modoc was on some of the documents; the name Modoc was also written in what appeared to be homework. Defendant was arrested later that day.
Once in custody, Ruiz interviewed defendant. The interview was recorded, and a transcript was provided to the jury. Defendant denied he knew Jeffreys well, identifying him as Brandon. When the store video was shown to defendant during the interview, defendant identified himself and Jeffreys. Defendant also said the third man who accompanied them to the store was not someone he knew. Defendant repeatedly denied being the shooter; after he heard gunshots from the direction of a bus stop, he took off running.
4. Autopsy
Venu Gopal, Chief Forensic Pathologist for the Fresno County Coroner's Office, conducted an autopsy of the victim. There was a gunshot wound to the top of the victim's head. A second entrance wound was located on the left side of the arm; the bullet had gone through the victim's arm, fractured the bone, exited on the inside aspect of the arm, and traveled through to the left side of the victim's chest where it penetrated the left lung. The gunshot residue indicated the distance of the gun from the victim at the time of the shooting was at least two feet away. There were also wounds on the victim's face consistent with a fall to the ground. The bullet in the top of the victim's head was likely due to the victim ducking his head during the shooting.
5. Gang Expert
Donovan Pope testified as a gang expert. He testified about gangs in the Fresno area, including Modoc and the 107 Hoover Crips. He recognized Bryant Jeffreys, the person with defendant on the night of the shooting, as an active Dog Pound gang member. He opined defendant was an active Modoc gang member, and he described the association between the Modoc and Dog Pound gangs. Pope testified about the primary activities of the Modoc and the Dog Pound, and various predicate offenses committed by those gangs' members. He opined Jovan Beard is a member of the 107 Hoover Crips, but Jamil Muhammad was not a validated gang member; Beard and Muhammad were cousins. Pope explained the rivalry between the 107 Hoover Crips and the Dog Pound gang. He opined, based on a hypothetical, that a confrontation and shooting as in this case would have been done to increase the respect and status of the gang and the gang's members. On cross examination, Pope acknowledged that Muhammad could have been a "wannabe" gang member, even though he was not validated as a gang member.
B. Defense Case
Defendant took the stand in his own defense. He testified the shooting occurred on his 19th birthday. He went to the convenience store with Jeffreys and someone else he did not really know; they were going to a party and picking up some soda. Jeffreys had stopped to talk to some girl defendant did not know, and then they went into the store. He did not recognize anyone in the store; he thought one guy looked familiar and asked him who he was. The person who seemed familiar and who he talked to was Muhammad, but Muhammad did not say anything in response.
He noticed a confrontation between Beard and Jeffreys that had nothing to do with defendant; defendant did not know Beard. Defendant walked out of the store, everyone else followed him out. He anticipated there was going to be a problem, such as a fight; he had been involved in fights before where he had been beaten, and he was frightened of getting jumped again. He had a .22-caliber revolver with him, and he carried it because he had been hurt during prior fights, and he felt he needed it to protect himself. He was also in an unfamiliar neighborhood and thought that anything could happen. When asked why he did not walk away when he anticipated there was going to be a fight, defendant acknowledged he should have walked in the opposite direction, but he felt like he was being cornered, and he "wasn't backing down on nobody now."
When the four confronted each other outside the store, defendant asked what the problem was; Muhammad asked defendant who he claimed, and defendant told him the Modoc gang. In his testimony, defendant explained he has a tattoo on his arm that is associated with Modoc, and while he admitted he was probably more than just a "wannabe" gang member, he asserted he does not "go around hurting people."
Defendant noticed more people gather around them, which made him more nervous. Defendant saw that Muhammad had a gun at his hip when Muhammad lifted up his shirt. Once he saw the gun, defendant was sure that he was going to be killed at that point. Defendant did not remember whether Muhammad had the gun in his hand before defendant fired his own gun at Muhammad. Afraid for his life, defendant fired his gun in Muhammad's direction; it was not defendant's intention to kill Muhammad; Muhammad's death was an accident. But defendant had fired his weapon because he had been in fear for his life, particularly because of his past experiences in fights and being hurt. Defendant could not recall how many times he fired the gun; almost immediately, he turned and ran back to the neighborhood he had come from.
When asked about his statements to Ruiz during his police interview, denying he had been the shooter, defendant indicated he had not cooperated with Ruiz because he did not like the police at that time, and he did not want to talk to Ruiz.
On cross-examination, defendant acknowledged he did not tell Ruiz he had been jumped in the past. Defendant also acknowledged he had lied to Ruiz during the interview about knowing Jeffreys, arriving at the convenience store with a third man, and denying being the shooter. Defendant admitted that when he was in the store on the night of the shooting, he had felt that things "[were] going a little bit off." Defendant denied seeing Muhammad lift up his shirt while in the store. He acknowledged that, after re-watching the video, Jeffreys was the first one to leave the store and defendant followed him out. After he and Jeffreys left the store, they walked over to a car parked in the lot, and then Muhammad and Beard exited the store and walked over to the car. According to defendant, he was trying to figure out why they had followed Jeffreys and him outside and what the problem was. Defendant admitted again that he shot Muhammad during that exchange, but repeatedly stated it was an accident, that he was acting in self-defense because he was afraid for his life. He acknowledged he should have walked away, but he explained he was still a kid at that point; while he was a Modoc gang member at that time, he was only a "wannabe," and he had "left all of that behind [him] after [he] got locked up"
IV. Jury Verdict and Posttrial Proceedings
The jury found defendant guilty of first degree murder and found true the firearm and gang enhancement allegations. Following the verdict, defendant admitted his prior serious felony conviction, and his sentencing was set for June 2, 2017. At the June 2, 2017, hearing, defendant indicated his trial attorney had been ineffective. On June 14, 2017, trial counsel appeared with defendant and indicated to the court defendant wished to proceed with a claim of ineffective assistance of counsel, and requested new counsel be appointed. The trial court subsequently relieved trial counsel as defendant's attorney, and new counsel was appointed.
Appointed counsel filed a motion for a new trial based on the ineffective assistance of trial counsel. The court denied the motion for reasons set forth in open court in November 2017, and set the sentencing hearing for December 15, 2017. At the December sentencing hearing, the trial court imposed an aggregate term of 75 years to life. This appeal followed.
DISCUSSION
I. Defendant's Claims of Ineffective Assistance of Counsel
On appeal, defendant claims both his trial counsel and the attorney appointed by the court to file a motion for a new trial (based on the ineffective assistance of trial counsel) rendered ineffective assistance. Defendant asserts his trial counsel was ineffective in multiple respects that stemmed from trial counsel's health issues, including that he failed to give any opening statement; failed to conduct reasonable cross-examination or object to the prosecutor's questioning of various witnesses; and failed both to adequately prepare defendant to testify and to adequately develop the theory of defense.
With respect to his appointed counsel, defendant argues that counsel rendered ineffective assistance by failing to provide any written analysis in the motion for a new trial, by submitting on the papers at the hearing on the motion rather than present argument, and by failing to seek a continuance of the hearing when defendant raised additional issues about jury bias and trial counsel's admission to defendant he was ineffective.
II. Legal Standard
A defendant claiming ineffective assistance of counsel must satisfy a two-part test requiring first a showing of counsel's deficient performance and then resulting prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) In demonstrating a counsel's deficient performance, the defendant "must show that counsel's representation fell below an objective standard of reasonableness" measured against "prevailing professional norms." (Id. at p. 688.) On the prejudice prong, the defendant is required to establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Ibid.)
There are practical constraints that make it more difficult to address ineffective assistance claims on direct appeal as opposed to a habeas corpus proceeding. (People v. Mickel (2016) 2 Cal.5th 181, 198.) First, "[t]he record on appeal may not explain why counsel chose to act as he or she did. Under those circumstances, a reviewing court has no basis on which to determine whether counsel had a legitimate reason for making a particular decision, or whether counsel's actions or failure to take certain actions were objectively unreasonable." (Ibid.)
Second, in evaluating trial counsel's actions, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance ...." (Strickland, supra, 466 U.S. at p. 689; accord, People v. Dennis (1998) 17 Cal.4th 468, 541.) Thus, a defendant must overcome the presumption that the challenged action might be considered sound trial strategy under the circumstances. (Strickland, supra, at p. 689.) "The constitutional standard of performance by counsel is 'reasonableness,' viewed from counsel's perspective at the time of his challenged act or omission." (People v. Gonzalez (1990) 51 Cal.3d 1179, 1243-1244, superseded by statute on another ground as stated in In re Steele (2004) 32 Cal.4th 682, 691.) This burden has been described as "'difficult to carry on direct appeal,' as a reviewing court will reverse a conviction based on ineffective assistance of counsel on direct appeal only if there is affirmative evidence that counsel had '"'no direct rational tactical purpose'"' for an action or omission." (People v. Mickel, surpa, 2 Cal.5th at p. 198.)
III. No Ineffective Assistance of Trial Counsel
Defendant argues his trial counsel rendered ineffective assistance in multiple ways, each of which we consider in turn below.
A. Failure to Give an Opening Statement
Defendant argues that while it may have been reasonable trial strategy to reserve an opening statement until after the prosecutor rested her case-in-chief in that it tactically withheld the imperfect self-defense theory from the prosecutor, it was nonetheless ineffective assistance to give no opening statement after the prosecution rested. The People maintain that even if failing to give an opening statement at that stage of the trial was not advisable, defendant has failed to show any prejudice. The People maintain the imperfect self-defense theory was simple and straightforward—defendant had been attacked before, he was in an unfamiliar area during a volatile situation, and when he saw the victim pull up his shirt and reveal a gun, defendant reacted in self-defense. The People argue an opening statement would have done little to clarify the issues or better prepare the jury for defendant's testimony.
The purpose of the opening statement is to inform the jury of the evidence the defense intends to present, and to show the manner in which the evidence and reasonable inferences relate to the defendant's theory of the case. (People v. Millwee (1998) 18 Cal.4th 96, 137.) Waiving an opening statement is a matter of trial tactics and strategy, which appellate courts do not generally second-guess. (People v. Mitcham (1992) 1 Cal.4th 1027, 1059.) The record does not disclose why trial counsel elected not to give an opening statement, but choosing not to do so could have been a legitimate strategic choice. Knowing defendant was his only witness, trial counsel could have been worried about losing credibility with the jury if he made predictions about defendant's testimony that did not materialize. Losing credibility with the jury was perhaps a greater risk here because the defense hinged solely on defendant's testimony he acted in self-defense. Moreover, because the defense was comprised of only one witness, perhaps trial counsel felt an opening statement would not serve to assist the jury in understanding the testimony or making reasonable inferences. Further, defendant has failed to establish any prejudice arising from the lack of an opening statement—whether that statement had been given at the beginning of the trial or after the close of the prosecutor's case-in-chief. There was no ineffective assistance of trial counsel in failing to give an opening statement.
B. Failure to Object and to Cross-examine Various Witnesses
Defendant next argues his trial counsel made only four objections over the course of 15 prosecution witnesses. Defendant argues more specifically that his trial counsel failed to interpose necessary objections during the course of the prosecutor's direct examinations of Ruiz and Pope. Defendant also argues his trial counsel conducted either very brief or no cross-examination of important witnesses such as the coroner, eyewitnesses, the video engineer, Peterka, Ruiz, and Pope.
The People argue trial counsel was not required to make every available objection because there was nothing to be gained by doing so. The percipient witnesses' identification of defendant as the shooter made no difference to the defense theory, which admitted defendant was the shooter. The same was true of the coroner, who merely established the victim's injuries and cause of death—neither of which were disputed by the defense. The decision not to object to various questions of Pope and Ruiz were reasonable, and defendant fails to establish any prejudice resulting from a failure to object or cross-examine more thoroughly. We agree with the People.
"When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation." (People v. Anderson (2001) 25 Cal.4th 543, 569.) Here, the record does not affirmatively disclose why counsel failed to make all potentially available and relevant objections. Moreover, on this record, the lack of objections could be construed as a valid and reasonable tactical strategy. The defense theory was that defendant shot the victim in self-defense. Neither witnesses Jagdip nor Marina had witnessed the shooting, so their testimony was not relevant to the self-defense issue and, thus, interposing objections to testimony that was irrelevant to the defense theory may have been deemed unnecessary, time consuming, or a matter of other reasonable strategy. (See People v. Diaz (1992) 3 Cal.4th 495, 559-560 [failure to object to evidence likely admissible was possibly tactical decision, recognizing objection would not benefit the defendant and would slow down an already lengthy trial; no ineffective assistance in failing to make objection].)
As for Officer Peterka, he interviewed Marina, and he indicated he had seen no shell casings when he searched the scene. The type of weapon used was not relevant to defendant's theory of defense—defendant admitted he fired a .22-caliber revolver at the victim. Information Peterka garnered from Marina was relevant to placing defendant at the scene, and to defendant's swift departure following the shooting, but this too was not relevant to the defense as defendant admitted he was the shooter. It is not clear what additional cross-examination of Peterka was necessary or would have been relevant to the theory of defense. Further, defendant does not point to any specific questions of Peterka that were objectionable, how the questions and answers would have been relevant to the defense, or how the failure to object was prejudicial to defendant's presentation of his defense and likely affected the outcome.
The coroner testified what injuries the victim sustained as a result of the shooting, and definitively explained the cause of death. But because the injuries to the victim were not relevant to any issue of the defense theory, and defendant had admitted shooting the victim in self-defense, even if there were objections or further cross-examination that technically could have been made, not doing so could have been a reasonable tactical decision by counsel. (See People v. Cox (1991) 53 Cal.3d 618, 662 ["As to whether certain witnesses should have been more rigorously cross-examined, such matters are normally left to counsel's discretion and rarely implicate inadequacy of representation."], disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Moreover, because none of the coroner's testimony was relevant to defendant's defense, there is no showing its introduction was prejudicial to defendant or that further cross-examination was reasonably likely to result in a different verdict. (People v. Cox, supra, at p. 662 [to establish ineffective assistance, the defendant must identify exculpatory or impeachment evidence that counsel could have revealed by further questioning of prosecution witnesses that would have produced a more favorable outcome].)
Defendant argues trial counsel should have more fully cross-examined Smith, the video engineer who reviewed and testified what changes had been made by the prior video engineer to the store videos. Defendant notes modifications to the video were performed because the actual, original video was blurry, and that "[t]here was a litany of question[s] related to authentication, reliability, and bias that [trial counsel] should have [asked] about." However, the court had already ruled the videos were admissible, and Smith testified the only video-editing performed was magnification and focusing of the video images. It is possible trial counsel determined further questions about the video forensics would not have been beneficial in light of Smith's direct, unequivocal testimony about the small amount of modification that had been done to the videos. Further, defendant does not argue what further cross-examination could have been elicited that would have shown the videos to be unreliable or an unfair representation of the originals. (People v. Cox, supra, 53 Cal.3d at p. 662.)
1. Detective Pope
Defendant argues his trial counsel did not object to the gang evidence to which detective Pope testified as an expert. Defendant claims this portion of Pope's testimony was unnecessary in light of the stipulation that various predicate offenders were gang members, and admission of this testimony was therefore unduly prejudicial. Defendant maintains his trial counsel also did not object to a series of questions by the prosecutor that improperly called for Pope to offer a legal opinion.
The People maintain the parties had stipulated to various predicate offenders' gang affiliations and, thus, the decision not to object to the prosecutor's questions was reasonable. Further, the People argue defendant fails to articulate what questions by the prosecutor improperly called for a legal conclusion and how any legal conclusion prejudiced defendant.
Defendant was alleged to have committed the shooting for the benefit of, at the direction of, or in association with a criminal street gang under section 186.22, subdivision (b)(1). To prove this allegation true, the prosecution was required to establish the existence of a criminal street gang, which is defined by statute as a group consisting of three or more persons whose primary activities consist of certain crimes. (§ 186.22, subd. (f).) The group must have a common name or identifying sign or symbols, and its members must be proven to have engaged in a pattern of criminal activity by committing specific offenses among the primary criminal activities of the group. (Ibid.) A pattern of criminal activity means that gang members in the group have, within a certain time frame, committed or attempted to commit two or more specific criminal offenses (so-called predicate offenses). (People v. Gardeley (1996) 14 Cal.4th 605, 610, disapproved of on other grounds by People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13.) The prosecutor may prove the requisite pattern of criminal gang activity by evidence of two or more predicate offenses committed on separate occasions or by evidence of such offenses committed by two or more persons on the same occasion. (People v. Loeun (1997) 17 Cal.4th 1, 10.)
Here, the prosecutor solicited testimony from Pope necessary to establish that Modoc is a criminal street gang engaged in a pattern of criminal activity. Pope first testified Modoc's primary criminal activities included robbery, felony assault, shootings, drug sales, pimping, and drug and illegal gun possession. Pope then testified about the predicate offenses establishing Modoc's pattern of criminal gang activity: Pope testified Benjamin Lefall was a Modoc gang member who had been found guilty of assault with a firearm; James Edward Hicks was a Modoc gang member who was convicted, among other things, of assault with a firearm; Donte Demmery and Wendell Moton were also Modoc gang members who had both been found guilty of assault with a deadly weapon or force likely to produce great bodily injury; Bobby Pearson was a Modoc gang member who was previously convicted of being a felon in possession of a weapon; Mister Brooks was a Modoc gang member who had previously been convicted of being a felon in possession of a firearm; and Gregory Simpson was a Modoc gang member who had previously been convicted of crimes including assault with a firearm on a police officer. Court records establishing the convictions of each of these individuals for the specified crimes were introduced and admitted into evidence. Also admitted into evidence was the stipulation of the parties that Lefall, Hicks, Moton, Pearson, Brooks, and Simpson were all Modoc gang members at the time they committed their respective offenses.
While the stipulation as to these individuals' gang membership meant the prosecution did not have to introduce evidence establishing their membership, that stipulation did not encompass whether Modoc engaged in the requisite pattern of criminal activities, which was evidenced by the types of crimes these individuals committed. While defendant complains his trial counsel did not object "to the litany of gang evidence presented that concerned other people[,]" he does not explain specifically what predicate offense testimony Pope provided that was objectionable as irrelevant, duplicative, or unduly prejudicial. (See People v. Hines (1997) 15 Cal.4th 997, 1047 [no ineffective assistance of counsel in failing to make unmeritorious objection].) The stipulation between the parties as to various predicate offenders' gang membership meant the prosecution did not have to present additional testimony or evidence showing how the expert reached his opinion each of these individuals were associated with the Modoc gang; and, in fact, the prosecutor did not solicit that testimony from Pope—she asked only whether these individuals were Modoc gang members, which was necessary to give context to Pope's testimony about their respective convictions for activities that were consistent with the Modoc gang's primary activities.
Defendant's argument that trial counsel failed to object to improper questions meant to elicit legal conclusions or opinions from Pope is without citation to any specific improper question. While there are record page numbers referenced, it is not clear what questions defendant finds objectionable. Having reviewed the page citations, we find only questions directed to Pope about what criminal offenses were listed on the court records of the predicate offenders, which does not appear to be improperly calling for legal conclusions.
In sum, there is nothing in the record indicating why trial counsel did not object to some of the prosecutor's questions of Pope, but the lack of objections could have been reasonably calculated trial strategy. Further, there is no showing what testimony of Pope would have been excluded had an objection been made, and how the exclusion of that testimony would have likely yielded a different result.
2. Detective Ruiz
Defendant argues the prosecutor repeatedly posed leading questions to Ruiz, but defendant's trial counsel failed to object. Whether to object to that type of questioning was arguably a matter of legitimate trial strategy, and there is nothing in the record affirmatively explaining why counsel failed to object. (People v. Lewis (2001) 25 Cal.4th 610, 661 ["counsel's failure to object rarely provides a basis for finding incompetence of counsel"].) Further, it is not clear how this was prejudicial to defendant. Had an objection been interposed, there is no showing the question could not have been rephrased and the testimony given.
Defendant next argues his counsel should have questioned Ruiz about the methods of interrogation because defendant "attempted to end the interrogation on numerous occasions and repeatedly asked Ruiz to just arrest him." In other words, defendant argues his counsel should have been developing his theory of defense by attacking the method of Ruiz's interview of defendant to explain why his answers to Ruiz were not truthful.
The record does not reveal why counsel did not cross-examine Ruiz about his interrogation techniques, and the matter is not one for which there could be no satisfactory explanation for counsel's omission in this regard. (People v. Cleveland (2004) 32 Cal.4th 704, 746 ["[N]ormally the decision to what extent and how to cross-examine witnesses comes within the wide range of tactical decisions competent counsel must make."].) Questioning Ruiz about his interrogation style in an effort to paint defendant's interview answers as coerced likely needed to be balanced against the damage it may have caused to defendant's credibility by highlighting the interview and defendant's responses. At trial, defendant acknowledged his denials to Ruiz during the interview were lies. Also, defendant makes no argument how such cross-examination had a reasonable probability of producing a different result. There were legitimate and tactical strategy reasons not to cross-examine Ruiz about his interrogation style, and even if such cross-examination were necessarily warranted, there is no showing of prejudice.
C. Defendant's Testimony
Defendant argues his trial counsel rendered ineffective assistance in failing to conduct any redirect examination after the prosecution cross-examined him. Further, defendant argues his counsel only "came up with" the theory of self-defense just prior to defendant's testimony, and they did not discuss the theory of defense in detail. Moreover, trial counsel failed to fully develop the theory of self-defense because he did not present "any evidence whatsoever to back up [defendant's] testimony."
As to evidence to corroborate defendant's testimony he acted in self-defense, defendant has not established that documents existed or were available to counsel, or that witnesses who could corroborate defendant's version of events could be located. Without explaining what evidence trial counsel withheld from the jury, defendant cannot establish prejudice, either. Accordingly, defendant has not demonstrated his counsel's performance fell below an objective standard of reasonableness, nor has prejudice been established. (People v. Lucero (2000) 23 Cal.4th 692, 728 [to prevail on an ineffective assistance claim, deficient performance and resulting prejudice must be shown].)
Regarding trial counsel's alleged failure to adequately prepare defendant to testify and failing to conduct a redirect examination, defendant does not explain what portion of his testimony demonstrates his inadequate preparation. That negative facts were elicited during defendant's cross-examination does not demonstrate that defense counsel inadequately prepared him to testify. (People v. Cunningham (2001) 25 Cal.4th 926, 1031-1032 ["because even the most carefully prepared witness may give a surprise answer, we may not hold defense counsel responsible for the potentially damaging responses furnished by a defendant or another witness"].) Further, as the People argue, there were a variety of tactical reasons not to conduct a redirect examination. On cross-examination, defendant admitted he was wrong, he should have walked away from the encounter, and he was a different, less mature person then. Trial counsel may have viewed this as an explanation the jury believed—counsel was in the best position to observe the jury and determine whether redirect was advisable, warranted, or overly risky. Further, conducting redirect also opened the door for further cross-examination within the scope of the redirect, and trial counsel could have determined that risk outweighed the potential benefit. Even assuming there was no possible satisfactory explanation for declining to perform a redirect examination, in light of the evidence presented at trial, it is not reasonably probable the outcome would have been more favorable to defendant.
D. Trial Counsel's Health Issues
Defendant argues trial counsel's health issues were "evidenced through the myriad of continuance requests that ultimately resulted in a case that took 5 years to conclude" and that it "should have been abundantly clear to everyone that [trial counsel] was in no shape to try a case."
There were delays in 2016, at the beginning of 2017, and on the first day of the trial due to some health issues trial counsel was experiencing. However, there is nothing in the record demonstrating trial counsel did not have the ability to provide a zealous and fully competent defense. The fact the case took five years to conclude was not solely a product of trial counsel's health—there were multiple delays requested by both parties encompassing a variety of reasons, including availability of discovery and scheduling issues. We also agree with the trial court that when trial counsel needed continuances based on his health, he asked for them and they were liberally granted. There is no basis in the record to believe that when trial counsel was present and stated he was able to proceed that this was not so. Defendant argues trial counsel felt obligated to appear when he was unable to deliver reasonably competent services because of defendant's family's financial investment in his representation. Yet, the record does not establish trial counsel ever acted below the standard of reasonable competence as discussed above. And, for this reason, the fact counsel suffered health complications that caused some delay of the trial does not establish ineffective assistance.
II. No Ineffective Assistance Rendered in Filing Motion for a New Trial
A. Background
Defendant's appointed counsel filed a motion for a new trial, which listed nine separate grounds defendant claimed established his trial counsel's ineffectiveness: (1) multiple continuances between January 11, 2017, and April 17, 2017; (2) the failure to continue the trial to a date when counsel felt well enough to proceed; (3) the failure to remain awake and alert during trial; (4) the failure to use all of the time allotted to present a defense; (5) the failure to defend defendant "correctly"; (6) the failure to prepare witness statements prior to trial testimony to ensure proper impeachment; (7) the failure to present an opening argument; (8) a statement in closing argument that defendant could be found guilty of second degree murder; and (9) evidence was not fully presented and "exploited." No additional argument was supplied in making these assertions, and only one citation to the record was provided. The motion was accompanied by a declaration of defendant, listing defendant's observations and opinions about his trial counsel's work product and performance. He indicated his counsel was not in good health when he conducted the trial; counsel did not remain awake and alert during trial, and he fell asleep more than once; counsel did not use all of the time allotted for the defense; counsel did not defend defendant "correctly"; counsel was not prepared for cross-examination and did not read witness statements prior to trial testimony; counsel failed to give an opening argument; counsel told the jurors they could convict him of second degree murder; and the evidence "was not fully presented and exploited" in defendant's defense.
At the hearing on the motion, defendant added two additional grounds for a new trial. He argued the jurors selected were biased and did not represent a jury of his peers because they had connections with military or law enforcement, and they had educational backgrounds and living standards that were different from those of defendant. He also asserted the jurors were all of the same racial ethnicity and, therefore, held "huge difference[s] in cultural beliefs." Appointed counsel also noted defendant claimed his trial counsel had admitted to defendant that he was ineffective.
The prosecutor argued she never once saw trial counsel inattentive or asleep at his desk; whenever counsel was ill, he asked for continuances. As to the allotment of time, the prosecutor argued she usually overestimates her time estimates to account for jury deliberations. Further, the failure to give an opening statement seemed like a wise tactical decision to preclude the prosecutor from advance knowledge of the self-defense theory defendant was relying upon. In the prosecutor's view, the evidence was overwhelming and imperfect self-defense was all that was available to defendant given the state of the evidence.
The court ruled as follows:
"As far as the claim of not a jury of one's peers, the jury selection process was one that all counsel and the Court engaged in. [Defendant] was present for that. [Defense counsel], a very experienced attorney whose experience includes multiple homicide cases, including death penalty cases, selected a jury and had certain trial tactics during the course of the trial that this Court, in its opinion, can conclude was done in the best interest for this particular defendant under the circumstances. The Court does not find any abuse of the process or system in the selection of the jury or the composition of the jury or in the actions of the jury.
"As far as the allegation that [defense counsel] was inattentive or asleep during the trial, I did not observe that at any point in time. I will say, this particular case, because of [defense counsel's] medical condition at the
time that this case was assigned out for trial, I was concerned about his ability to be present on a regular basis for trial because of that medical condition. Because of that, the Court was very lenient in granting delays and continuances. When [defense counsel] was present, he stated he was ready to proceed, and if he was present and felt he could not proceed, the Court accommodated that request on each occasion, and the defendant concurred with the delays by entering time waivers so that [defense counsel], who was his attorney for a substantial period of time, could be present for all the proceedings. Because of that situation, the Court observed [defense counsel] throughout the trial. I never observed him to be inattentive. I never saw him sleep at any point in time or appear to sleep. He never appeared to be in any discomfort in any way that would prevent him from being attentive, participating in the proceedings, and because of that, the claim without any support that he was inattentive, asleep, or ineffective, the Court does not find a sufficient basis for that.
"As far as the allegations that the delays at the start of the trial affected a fair trial, the Court finds no basis for that as I have previously stated. We only proceeded when [defense counsel] was available. When he did become available, we proceeded fairly straightforward without much delay.
"The allegation that the defense failed to use the time allotted to prevent a defense is totally unsupported by the evidence. There's no specific allotted time that needs to be used. The estimate that we gave the jury was merely an estimate based upon what the attorneys and the Court felt the time it would take to present that evidence. Merely because we told the jury it was a certain number of days and the evidence completed before that does not show any ineffective assistance of counsel, any failure to provide evidence. It merely means that all the evidence that was available to be presented was done. And the claim that this is somehow ineffective assistance of counsel is unsupported by any fact or any case authority.
"The claim that the defense attorney failed to defend correctly, there's no real information being provided to the Court by the defendant as to what was incorrect.
"The allegations that in this case, and the defense posture in this case, I would concur with the People's assessment that [defense counsel] not giving an opening statement was a wise tactical decision. At that point in time apparently the defendant had not made any statements to anyone that he was the shooter. Because of the gang related nature of the incident and perhaps feeling that maybe certain witnesses would not testify or that
their testimony could be something that he could attack, he did not make statements about what he felt the evidence would show at the outset.
"The law enforcement report says or testified to during the course of the trial ... that the defendant denied being the shooter, even though he may have been present. And so waiting until after the People completed their case to come up with the theory that, in fact, the defendant was the shooter but there was a reason for why he shot, it was probably wise on [defense counsel's] part not to give any opening statement.
"The defendant's testimony in and of itself, when compared with the other evidence of the case, fell well short of convincing. His allegations that he shot in self-defense were not supported by any other evidence other than his statements.
"The videotape of the incident itself showed during a period of time the victim exposing his back side, his front side, and at that point in time there is no weapon seen in a waistband. The defendant's claim that he believed shortly thereafter that the victim was going for a weapon is unsupported by any other evidence other than the defendant's statements.
"The claim that [defense counsel] failed to prepare witness statements to ensure proper impeachment is unsupported by any factual basis. [Defense counsel] limited his cross-examination on witnesses where there was no value in bringing out any other information and perhaps avoiding bringing out additional unfavorable evidence. The failure, as I said, to present an opening statement, I believe, is not any defect in this case at all, but perhaps a good tactical decision.
"The argument that [defense counsel] gave based upon all the testimony that was then in the case, including the defendant's version of events, arguing that there should be no first degree murder, that there could be a basis for second degree murder could be supported by some of the facts. It was argued. The jury rejected that.
"The claim, without any factual support behind it, that the evidence was not fully presented or exploited, the Court finds there is no basis for that. And on balance, the Court finds that the efforts of [defense counsel], based upon the evidence in this case, were something that was done competently, effectively, and was done as well as or better than the average attorney with the same experience of [defense counsel] in homicide cases. In other words, I don't find any tactical decision to be unsupported by what was presented in this case and I don't find any deficiency in his efforts to
defend the defendant. [Defense counsel] simply had a difficult factual case to argue, and therefore the motion for a new trial is being denied."
B. Parties' Arguments
Defendant claims his appointed counsel failed to properly prepare the motion for a new trial based on ineffective assistance of defendant's trial counsel. In filing the motion for a new trial, defendant claims appointed counsel did nothing more than cite the applicable standard of review and list the basic framework of what conduct constituted ineffective assistance during the prior proceedings; there was no analysis of the issues, and no citation to the reporter's transcript was made. Defendant further claims that during the hearing on the motion for a new trial, he raised two additional issues of ineffective assistance during the trial proceedings, but his appointed counsel only relayed those to the court without presenting any argument; she should have asked for a continuance to fully investigate those issues. Defendant claims these acts and omissions of appointed counsel rendered her work on the motion for a new trial ineffective assistance, which caused him great prejudice because there was no advocacy for defendant's position.
The People maintain the record does not affirmatively disclose a lack of a tactical purpose for the challenged acts. The People argue there were satisfactory explanations for appointed counsel's lack of argument in the motion for a new trial. For example, defendant's allegations of ineffective assistance referred to maters outside the trial record of which appointed counsel had no personal knowledge—deferring to the trial court's own observations in ruling on the motion was thus reasonable, given appointed counsel did not observe the trial. Moreover, defendant fails to demonstrate any prejudice in light of the trial court's findings.
C. Analysis
We note again that it is "particularly difficult to establish ineffective assistance of counsel on direct appeal, where we are limited to evaluating the appellate record. If the record does not shed light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation." (People v. Scott (1997) 15 Cal.4th 1188, 1212.) We do "not assume inadequacy of representation unless counsel had no conceivable legitimate tactical purpose[]" in various acts and omissions defending the case. (People v. Diaz, supra, 3 Cal. 4th at p. 558.)
Regarding whether appointed counsel should have sought a continuance to investigate defendant's new claims of error made at the time of the hearing—no jury of his peers and his trial counsel's admission of ineffectiveness—there is no information in the record why appointed counsel did not request such a continuance. Nonetheless, there are valid reasons why she may not have pursued one, including that she may have already reviewed the composition of the jury panel and the jury selection process and concluded there was no meritorious argument that could be made on that basis. Moreover, we have nothing before us to conclude there was any error with regard to the selection of the jury that could demonstrate prejudice. As to defendant's claim his trial counsel admitted to him he was ineffective was not something that required a continuance for further research, it was simply defendant's assertion of what his counsel told him. That information was placed before the court at the hearing for consideration.
Defendant's claim his appointed counsel rendered ineffective assistance in failing to provide any analysis of the issues in the motion for a new trial is likewise unpersuasive. There is nothing in the record demonstrating why further analysis was not given, but appointed counsel could have considered the arguments unmeritorious and without any support in the record. Further, some of the arguments—such as trial counsel falling asleep or failing to prepare witness statements—were matters necessarily outside the record and were unsupported other than by defendant's declaration; and, they were matters about which appointed counsel necessarily had no personal knowledge.
Appointed counsel asserted that trial counsel was ineffective in arguing the jury could convict defendant for second degree murder. The failure to more fully develop this argument, even assuming there was no reasonable strategic reason for failing to do so, was not prejudicial—i.e., it is not reasonably likely the trial court would have granted the motion for a new trial on this basis. Trial counsel's argument to the jury could reasonably be viewed as a legitimate tactical decision. At trial, there was evidence presented that could have supported the second degree murder charge, and such an argument was beneficial to defendant in that it asked the jury to find defendant guilty of a charge less than first degree murder. In other words, even if the jury did not believe defendant's testimony he acted in self-defense, the jury could still have determined it was not a willful, deliberate, and premediated killing and convicted defendant of the lesser second degree murder. Even if appointed counsel had provided further analysis of this purported error by trial counsel, the argument lacks merit, and defendant cannot establish any prejudice stemming from appointed counsel's alleged failure to analyze the issue in greater depth.
Appointed counsel asserted trial counsel failed to remain awake and alert during trial, but there is no evidence establishing this other than defendant's statement, which was at odds with the trial court's observations of trial counsel and that of the prosecutor. This was not an issue that could have been developed with citation to the record, and further analysis could have been reasonably viewed as unnecessary.
Regarding trial counsel's purported failure to use all the allotted time estimated to present the defense case, there is no evidence in the record why this argument was not developed further by appointed counsel. There could have been a reasonable and legitimate basis for the omission, however. Appointed counsel may have viewed further analysis as detrimental to the overall persuasiveness of the motion to the extent she found this asserted error lacked merit. However, even assuming more argument should have been provided, there is no prejudice established. Time estimates are made at the beginning of trial when it is unclear exactly what testimony or evidence will need to be marshaled to defend against the prosecutor's case-in-chief. Defendant does not point to exculpatory evidence trial counsel refused to produce or offer into evidence during the defense case that appointed counsel overlooked or refused to include in the motion for a new trial. As such, the argument lacked merit and even if it had been more fully developed, it would not have, to any reasonable probability, resulted in a different ruling on the motion.
Appointed counsel also noted trial counsel failed to defend defendant "correctly," which was defendant's assertion in his declaration, and that trial counsel failed to prepare witness statements prior to trial testimony to ensure proper impeachment. Defendant argues the failure of appointed counsel to more fully develop these arguments in the motion for a new trial fell below the level of reasonable competence. Yet, even if there were no conceivable reasonable basis for failing to develop these arguments, no prejudice has been shown. Defendant does not identify what was not correct about his defense that would likely have produced a different outcome on the motion for a new trial had the argument been more fully developed, nor is there any showing how and which witnesses were improperly impeached due to a lack of preparation.
The remaining arguments presented in the motion have all been considered above and none established any conduct of trial counsel falling below the standard of reasonable competence. Thus, even assuming argument should or could have been made by appointed counsel regarding these additional assertions of ineffectiveness of trial counsel, the arguments lacked merit—there was no reasonable probability a more developed argument would have yielded a different ruling on the motion. For that reason, defendant cannot establish any prejudice in his appointed counsel's failure to further analyze or argue to the court those issues.
DISPOSITION
The judgment is affirmed.
MEEHAN, J. WE CONCUR: HILL, P.J. POOCHIGIAN, J.