Opinion
D072593
08-07-2018
THE PEOPLE, Plaintiff and Respondent, v. CYRUS LANGSTON, Defendant and Appellant.
Russell S. Babcock, under appointment of the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD268464) APPEAL from a judgment of the Superior Court of San Diego County, Albert T. Harutunian III, Judge. Affirmed. Russell S. Babcock, under appointment of the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Cyrus Langston, a jail inmate, punched from behind another inmate, John Amezquita, breaking his jaw. Amezquita was being verbally, but not physically, aggressive toward a third inmate. Langston was convicted of assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4), count 1), with a true finding that he personally inflicted great bodily injury (§ 12022.7, subd. (a), and battery with serious bodily injury (§ 243, subd. (d), count 2). He admitted a prior prison conviction (§ 667.5, subd. (b)) and a prior strike conviction (§ 667, subds. (b)-(i)) that was also a conviction of a serious felony. He claims that the trial court erred in refusing to grant a new trial due to the failure of a witness to comply with a subpoena, and that his counsel provided ineffective assistance by eliciting more information than was necessary about his prior felony convictions.
All further statutory references are to the Penal Code unless otherwise specified.
Langston forfeited his witness compliance claim when he chose to go forward with trial instead of requesting a continuance to locate the missing witness. Further, Langston was not deprived of a fair trial because the proffered testimony of the absent witness did not support the crux of Langston's defense — that the inmate threatened to stab or physically harm Langston or another inmate. The witness's testimony was also cumulative. Given the strong evidence provided by a surveillance video, there is no reasonable likelihood, beyond a doubt, that Langston could have achieved a more favorable result even if there had been some way to find the missing witness and to compel him to appear in court.
With respect to Langston's claim his counsel was incompetent, there is no reasonable likelihood that Langston would have received a more favorable result if defense counsel had acted differently. We affirm.
FACTS
A surveillance video from San Diego County Jail showed that Langston walked up to Amezquita from behind and immediately punched him. Langston broke Amezquita's lower jaw in two places, shattering it into three separate pieces. Amezquita's jaw was wired shut for six to eight weeks.
Amezquita testified. He had been convicted of a felony crime of moral turpitude in May 2016. He did not want to be involved in this case and did not want the case to be prosecuted. He claimed that he started the fight and it was "a dead issue." He acknowledged that he was hit on the head, but said he did not remember any details. He said he did not remember Langston and could not identify him in court. A county jail sheriff's deputy testified that inmates are generally not willing to participate in investigations or to cooperate with deputies. An inmate who cooperates is often moved into protective custody, as he is not safe in mainline housing.
Amezquita explained that there was a dispute between the Hispanic inmates and the Black inmates over who would serve the meal that afternoon. The inmate racial groups took turns serving the meals, as decided amongst themselves. The group that served got extra meals. The video showed a Hispanic man and a Black man talking, then shaking hands. According to Amezquita, he thought the Hispanic group should be serving the afternoon meal that day instead of the Black group, even though the leaders of the two groups had just reached an agreement. He said he instigated a fight with the Black inmates by making racial comments to a Black inmate, later identified as Willie Cammon, who had made the agreement with the Hispanic leader. The video showed Amezquita walking up to argue with Cammon. Amezquita said he tried to intimidate and provoke Cammon into a fight by calling him a "nigger." In response to suggestive questioning by the prosecutor, Amezquita said that he might have pulled his hand back and cocked his fist. But the video does not show Amezquita making any physical movements or gestures toward anyone.
The questioning by the prosecutor and answering by Amezquita was as follows:
"Q: Did you try and hit anybody?
"A: I can't remember. I can't recall.
"Q: Do you remember pulling your hand back and cocking your fist back?
"A: Maybe.
"Q: You don't remember or maybe?
"A: Maybe."
Langston walked up and sucker-punched Amezquita from behind, knocking Amezquita to the floor. It appears that Langston said nothing to anyone before punching Amezquita.
After Langston's assault on Amezquita, general fighting broke out among the inmates. The guards ordered the men into lockdown in their cells. Amezquita volunteered to a deputy that he had started the fight. He told the deputy he did not want prosecution.
Langston testified in his own defense. He said that he took this case to trial "to explain [his] side of the story." Previously, he had acknowledged his guilt and pleaded guilty to felony charges against him for robbery, domestic violence, and transportation of marijuana. This was the first time he wanted to explain his side. Langston went to state prison for the felony domestic violence case. He was familiar with the criminal justice system as he had been locked up in several county jails and state prisons in the past.
Langston admitted that he punched Amezquita, as shown in the video. He stated that Cammon, the Black leader, had agreed with the Hispanic leader that the Hispanics could serve food the next day and had shaken hands on that agreement. Amezquita then walked up to argue with Cammon. Cammon told Amezquita to calm down. Amezquita replied, "Fuck that. I'll shank one of you niggers if we don't get to serve chow." Cammon responded, "There's no need for it to go like this." Langston testified that in prison to "shank" means to stab, and he took Amezquita's threat as real. He stated that inmates who threaten to do something usually carry through on that threat. Langston testified that he punched Amezquita because Langston was scared that some Black inmate would be stabbed. He acknowledged that he knew that he was hitting Amezquita hard. Langston stated he used that much force "out of fear" because it seemed reasonable to him at the time, and because he had seen people get stabbed and assaulted in state prison before. He did not know, and did not intend, for his punch to provoke a brawl among all inmates.
Langston did not identify Cammon by name. Cammon, however, was familiar with Langston and referred to him as "my boy."
DISCUSSION
I
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION WHEN IT DENIED
LANGSTON'S MOTION FOR NEW TRIAL
Langston moved for a new trial on the ground that his right to a fair trial was violated by proceeding to trial without the appearance of a defense witness, namely, Cammon, who had been subpoenaed. Although his motion does not meet the statutory criteria of section 1181, California permits nonstatutory motions for new trial "when necessary to protect a defendant's constitutional right to a fair trial." (People v. Knoller (2007) 41 Cal.4th 139, 158 (Knoller); People v. Dunn (2012) 205 Cal.App.4th 1086, 1095 (Dunn); People v. Davis (1973) 31 Cal.App.3d 106, 109 (Davis) [trial court's grant of new trial due to absence of subpoenaed witness was reasonable].)
We conclude Langston forfeited this claim when he failed to seek a continuance of trial to locate Cammon. (Dunn, supra, 205 Cal.App.4th at p. 1096; People v. Glover (1969) 270 Cal.App.2d 255, 260 (Glover) [new trial motion properly denied when defendant did not seek continuance to procure desired witnesses].) In any event, the trial court did not abuse its discretion when it denied the motion. (People v. Howard (2010) 51 Cal.4th 15, 42-43 (Howard).) Langston was not denied a fair trial because there is no likelihood that Langston would have achieved a more favorable result even if Cammon had been present to testify. (Dunn, at p. 1100.) A. Langston Subpoenaed Witness Cammon, But Cammon Did Not Appear for Trial
Cammon was the Black inmate engaged in settling the meal-service question, and he was the inmate to whom Amezquita had directed a racial slur. Investigator Kimberly Arellanes interviewed Cammon on October 5, 2016. He confirmed the dispute about serving the meal and settlement of the issue. According to Cammon, the Hispanic inmate with whom the dispute was resolved walked away. A second Hispanic inmate then came up to Cammon and confronted him, aggressively, about whose turn it was to serve the meal. The inmate said something about "this is Chula Vista," which Cammon understood to be an attempt to intimidate Cammon by reference to a gang. The man was "verbally abusive and it was like he wanted to start a fight." Cammon saw a black arm reach over the Hispanic inmate's shoulder from behind and hit the Hispanic inmate. Cammon said he did not know who punched the Hispanic inmate and said he did not know Amezquita, and did not recognize a photograph of him. Cammon knew Langston, but did not see Langston either immediately before the fight or during the ensuing chaos. He did not remember seeing Langston "do anything during the incident." Cammon told the investigator that he would come to court to testify because he did not see Langston do anything during the incident. Cammon signed a declaration on June 6, 2017, that he made the statements that Arellanes included in her report, and that those statements were true and correct.
Defense counsel served Cammon with a subpoena on April 5, 2017. Cammon gave defense counsel a contact address and phone number. He said he understood that he needed to go to court in response to the subpoena. Defense counsel also served Amezquita with a subpoena on March 14, 2017. Two people — Amezquita's probation officer and a police officer familiar with Amezquita — told defense counsel that Amezquita would probably not comply with the subpoena and would probably not appear in court.
Trial was set to begin on April 25, 2017. The deputy district attorney told defense counsel on April 21 or 24 that Amezquita was in local custody on a "flash" incarceration for a parole violation, and would be released on April 26 or 27. The deputy district attorney told defense counsel that she was anxious to start the trial because she did not think that Amezquita would comply with the subpoena once he was released from jail. Defense counsel was reasonably certain that he would not be able to successfully serve Amezquita again.
Defense counsel tried to locate Cammon before trial. Cammon was not in custody or on active probation or supervision at the time of trial. Defense counsel called the phone number given to him by Cammon, but the woman who answered said that she wanted nothing to do with Cammon. She also said that she would not help defense counsel get Cammon to court. Defense counsel searched for Cammon at the address he gave, which was a church on 16th Street, filled with and surrounded by transients. He talked with several of the transients along that street and to several people at a homeless shelter, trying to locate Cammon. He did not succeed. B. Langston Decided to Go Forward with Trial Without Cammon
Cammon did not appear for trial as required by the subpoena. Defense counsel told the court:
"I think Mr. Langston, at this point, just wants to proceed to trial even though we don't have Mr. Cammon as a witness because to continue this case again to look for that witness, we risk losing Amezquita. . . . So we would rather have Amezquita with the interview than just to have Amezquita with the video. But we may lose Amezquita if we try to trail this case until we look for [Cammon, who was homeless]. . . . Mr. Langston is willing to proceed without Willie."
Defense counsel continued to search for Cammon through the trial and over the weekend after evidence had concluded. He walked through places where transients gathered, talking with many to try to find Cammon, but never found him. C. Langston Filed, and the Trial Court Denied, a Motion for New Trial Based on Cammon's Absence from Trial
Langston filed a motion for new trial based on Cammon's failure to appear in response to the validly served subpoena. Defense counsel explained in support of his motion for new trial that he was "on the horns of a dilemma" on the date set for trial. Amezquita was in custody and available for trial, but Cammon was not. Defense counsel considered asking for a continuance of the trial and issuance of an arrest warrant for Cammon, but he risked losing Amezquita as a witness and had no guarantee of finding Cammon. He could be left without either witness. He decided to go forward with the trial, with Amezquita as a witness, and to continue looking for Cammon.
The trial court denied the motion for new trial because it was not likely that Langston would have received a more beneficial result if Cammon had testified. Cammon contradicted a key point in Langston's testimony. Cammon never said he heard a threat to use a "shank." Cammon said that Amezquita was "verbally abusive" only. He told the defense investigator that the fight was not "a racial issue." Cammon's declaration undercut the suggestion that he was in imminent danger. He told Amezquita that he did not care about the gang reference, and he said that "he just looked at [Amezquita] and was like 'whatever.' " The video, also, showed no fearful actions by Cammon.
The trial court found that Amezquita was a more powerful witness for Langston than Cammon. Amezquita, the victim, "look[ed] the jurors in the eye and [said] 'it wasn't the defendant's fault, it was my fault.' " Amezquita took all the blame for the incident.
Moreover, the video showed that Langston walked up to Amezquita and immediately punched him from behind. Amezquita made no threatening gestures. Cammon did not appear to be defensive or to feel threatened by Amezquita in the video, and he never said he felt threatened or needed to be protected. Nothing on the video or in Cammon's statement supported Langston's theory that anyone was in need of immediate protection. D. Langston Forfeited His Claim, and the Trial Court Did Not Abuse its Discretion Because Langston Was Not Deprived of a Fair Trial
"In determining whether to grant a motion for new trial based on the absence of a witness who was expected to testify at trial, relevant factors include (1) the defendant's diligence in securing the attendance of the witness; (2) the defendant's use of available alternative means to obtain the desired evidence; (3) the defendant's fault for the witness's nonappearance; and (4) the nature of the testimony expected from the witness and its probable effect on the outcome of the trial." (Dunn, supra, 205 Cal.App.4th at p. 1095, citations omitted.) The decision on a motion for new trial depends on the facts of each case. Prejudice, in particular, " 'requires a nuanced, fact-based analysis.' " (Id. at p. 1094, quoting People v. Chatman (2006) 38 Cal.4th 344, 370.) The trial court is in the best position to assess the harms to the defendant, and thus we defer to the decision of the trial court unless " ' " 'a manifest and unmistakable abuse of discretion clearly appears.' " ' " (Howard, supra, 51 Cal.4th at pp. 42-43, Dunn, at p. 1094.) There is no basis for reversing the ruling. The trial court's ruling is supported by the record, and is not based on either impermissible factors or an incorrect legal standard. (Knoller, supra, 41 Cal.4th at p. 156.) It did not abuse its discretion.
In Dunn, the defendant sought a mistrial because his expert witness did not appear at trial. (Dunn, supra, 205 Cal.App.4th at pp. 1092-1094.) The court relied on "cases discussing the analogous situation of a motion for new trial based on the absence of testimony from a witness who was expected to testify at trial." (Id. at p. 1095.) It applied the same standard: whether the defendant had a fair trial. (Ibid.)
Starting with the second factor, Langston forfeited this claim because he deliberately and intentionally did not use the alternative means of seeking a continuance to secure Cammon's presence. (Dunn, supra, 205 Cal.App.4th at p. 1096.) In Glover, the court found that the defendant's failure to request a continuance to procure additional witnesses was a basis for affirming the denial of motion for new trial, along with the lack of statements from the witnesses. (Glover, supra, 270 Cal.App.2d at p. 260.) To be sure, counsel made a reasonable tactical decision to go forward with Amezquita as a witness rather than risk having to try the case without either Amezquita or Cammon. Langston argues that the trial court erred in finding that Langston's decision to proceed with trial was a tactical choice. We conclude however that defense counsel did indeed make a tactical decision. He explained that he considered asking for a continuance, but decided to go forward with trial because he risked losing Amezquita as a witness and had no guarantee of finding Cammon. His decision is akin to invited error; that is, a defendant may not assert a claim on appeal if he deliberately chose the alleged error in the trial court. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.)
Langston did not claim on appeal that his counsel was ineffective in failing to seek a continuance, although he could have because the direct appeal record contains a declaration from counsel explaining his decisions and information on what Cammon would likely have said if he had testified. (See People v. Mai (2013) 57 Cal.4th 986, 1009 [information from defense counsel about tactical purpose for the challenged act or omission necessary to decide claim of ineffective assistance on direct appeal; see also People v. Watts (2018) 22 Cal.App.5th 102, 117-118 [defense counsel's effective assistance of counsel may be considered on a motion for new trial when, as here, the motion contains sufficient documentary evidence to resolve the issue].) To forestall further litigation on this issue, we agree with the trial court that defense counsel's performance was not deficient because he knew and balanced the possible risks and benefits of seeking a continuance, and made a rational choice not to seek a continuance.
Langston was diligent in securing Cammon's attendance at trial, and Cammon's failure to appear was in no way attributable to Langston or to defense counsel. Dunn's first and third factors favor granting of the motion. (Dunn, supra, 205 Cal.App.4th at p. 1095.) But the fourth factor — the nature of the testimony expected from the witness and its probable effect on the outcome of the trial — works decidedly against Langston. (Id. at pp. 1096-1097; Davis, supra, 31 Cal.App.3d at p. 110 ["The power to grant a new trial on such nonstatutory grounds obviously is derived from the trial court's constitutional duty to insure an accused a fair trial."].) The Dunn court found that the testimony expected from the missing witness would not have changed the outcome of the trial. (Dunn, at pp. 1096-1098.) Prejudice to the defendant is the most important factor to be considered because the guarantee of a fair trial is the basis for determining if the defendant should have a new trial. The court characterized this factor as the most important in its ruling. (Id. at p. 1096.)
We agree with the trial court's assessment that Cammon's testimony would not have produced a more favorable result for Langston. The video showed no indication of physical threat before Langston ran up and punched Amezquita from behind with sufficient force to break Amezquita's jaw in two places. Thus, Cammon did not support Langston's defense. Cammon said Amezquita was verbally abusive, but his response to Amezquita was lackadaisical. He did not say that he heard Amezquita mention a "shank" nor that he felt physically threatened. Amezquita, the victim, was a far more helpful witness than Cammon. Amezquita did not identify Langston and said that he, Amezquita, was the only one at fault. Finally, there was little chance of getting both Amezquita and Cammon in court to testify at the same time. Even if that were possible, there was no likelihood of a more favorable result if a new trial were set and both witnesses appeared, under both the state standard of People v. Watson (1956) 46 Cal.2d 818, 836, and the more stringent standard of Chapman v. California (1966) 386 U.S. 18, 24. Any possible error was harmless beyond a reasonable doubt. (Ibid.)
Davis does not compel a different result. The defendant in Davis was "deprived of the testimony of a material witness through no fault of his own." (Davis, supra, 31 Cal.App.3d at p. 109.) If believed by the jury, the missing witness in Davis would have completely exonerated the defendant. (Ibid.) Here, Cammon's failure to testify was not due to any fault or negligence of Langston or of the prosecutor. But Cammon's testimony was not material, it was exonerating only to the extent that he said he did not see Langston anywhere near the assault. But Langston contradicted this evidence by admitting he punched Amezquita. Cammon's testimony was also cumulative and did not materially help Langston. He never indicated that Amezquita was a threat or claimed to have a knife. Amezquita provided the only evidence that supported, at all, Langston's testimony that Amezquita posed any threat to others. Moreover, Amezquita testified only to verbal taunts, and a possible cocking of his fist, which was contradicted by the video. Unlike in Davis, there was no likelihood here that Cammon's testimony would have resulted in a more favorable outcome for Langston.
We also disagree that People v. Martinez compels a different result. (People v. Martinez (1984) 36 Cal.3d 816 (Martinez).) The Martinez court held that, "a motion for a new trial should be granted when the newly discovered evidence contradicts the strongest evidence introduced against the defendant." (Id. at p. 823.) In Martinez, the defendant located a witness after trial who could provide evidence that would "probably lead to a different result at trial." (Id. at p. 826.) The Supreme Court found that "a manifest miscarriage of justice" would likely occur if the defendant could not provide this newly discovered evidence to a jury, even though the defendant was not reasonably diligent in discovering the evidence. (Ibid.) Here, in contrast, there was no likelihood that Langston would have received a different result at trial even if Cammon could have been found and provided testimony at trial. Cammon did not contradict the strongest evidence against Langston, the video. This was not a "close case," largely due to the surveillance video that showed Langston's sudden, unprovoked and forceful punch.
Langston forfeited this claim for a new trial because he deliberately did not seek a continuance to locate Cammon. In any event, the trial court did not abuse its discretion in denying Langston's motion for new trial because there was no prejudice to Langston.
II
DEFENSE COUNSEL WAS NOT CONSTITUTIONALLY INEFFECTIVE IN
QUESTIONING LANGSTON ABOUT HIS PRIOR CONVICTIONS
Langston had prior felony convictions for robbery, domestic violence, and transportation of more than an ounce of marijuana. The trial court ruled in limine that if Langston testified, he could be impeached with the prior convictions for robbery and domestic violence, but those two convictions could be referred to only as prior felony convictions for crimes of moral turpitude.
When Langston took the witness stand, he said that he was testifying in order to explain what had happened and to tell his side of the story. In the past, he had pleaded guilty when charged with robbery, domestic violence, and transportation of marijuana. This time was different. This was the first time that he wanted to proceed to trial to explain what had happened and why he punched Amezquita. He also wanted to explain that he knew custody culture. Thus, when Langston heard Amezquita mention a "shank," he took that threat as real, because in his experience people in custody who threaten to do something carry through on the threat.
Langston claims that defense counsel was constitutionally ineffective because he elicited more information about his prior convictions than was needed, i.e. the specification of the crimes committed, and the drug conviction that had been excluded. He claims that he was prejudiced because the jury could have inferred that he acted with unreasonable force because he had used force in his previous crimes. Langston has not shown prejudice.
To show ineffective assistance of counsel, "the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." (People v. Mai, supra, 57 Cal.4th at p. 1009; Strickland v. Washington (1984) 466 U.S. 668, 684-685, 694 (Strickland).) An ineffective assistance of counsel claim fails if the defendant makes an insufficient showing on either one of these components. (Strickland, at p. 687.)
"If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." (Strickland, supra, 466 U.S. at p. 697.) We follow that course here. There was no possibility of a more favorable result for Langston if defense counsel had not elicited these details. The video shows no physical action by Amezquita or Cammon before Langston sucker-punched Amezquita from behind. Amezquita tried to claim the blame for the punch, but he did not say that he claimed to have a "shank." Langston's violence was graphically shown on the video, and was not based on his actions in prior crimes. There is no reasonable likelihood that Langston could have received a more favorable result even if counsel had asked him only if he had two prior felony convictions for crimes of moral turpitude. (Strickland, at p. 694.) Our confidence in the outcome of the proceeding has not been undermined. (Ibid.)
DISPOSITION
The judgment is affirmed.
BENKE, Acting P. J. WE CONCUR: HUFFMAN, J. AARON, J.