Opinion
C057344.
1-29-2009
THE PEOPLE, Plaintiff and Respondent, v. GEORGE LANDECHO LOPEZ, Defendant and Appellant.
Not to be Published
A jury convicted defendant of evading a peace officer, a felony, and resisting an executive officer, a misdemeanor. (Veh. Code, § 2800.2, subd. (a); Pen. Code, § 148.) The trial court sustained two prison-term allegations. (Pen. Code, § 667.5, subd. (b).) The trial court imposed the upper term of three years for evasion and a year for each of the prison-term allegations, for a total state prison sentence of five years; the misdemeanor charge resulted in a concurrent jail sentence. Defendant timely appealed.
On appeal, defendant claims trial counsel was incompetent, and the misdemeanor sentence should have been stayed. He also briefs sentencing issues that he concedes are foreclosed by precedent, in order to preserve those issues for further review. We shall modify the sentence and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of April 15, 2007, defendant sped in his Volkswagen Beetle — "one of the newer types" — and did not pull over when signaled to do so by California Highway Patrol Officer Dirk Lambert. Defendant sped, drove erratically, ran a stop sign and eventually wound up by a creek bed. Before that, the Beetle had slid by a field fence and Officer Lambert tried to pin it with his push bars. At that time he could see through the open right-side window and saw defendants face; he saw no passenger. Defendant fled from the Beetle on foot and disregarded Officer Lamberts commands to stop for perhaps 200 yards, then surrendered.
After Officer Lambert determined defendant had outstanding arrest warrants, defendant told him "he already had enough problems, and he didnt want any more problems." "[H]e stated that he was scared what would happen if I had stopped him, and so he didnt want to stop."
After capturing defendant, Officer Lambert returned to the Beetle and "saw a woman exiting the rear seat" and he identified her at trial as Lynette Mize. It took about two minutes to walk back to the Beetle from where he had captured defendant. He had thought defendant was the only occupant of the car because he could not see a second silhouette through the rear of the car during the pursuit, although he could see defendants head, and he did not see anyone when he looked through the right-side window when he tried to pin the Beetle up against a field fence.
Before defendant testified, and outside the presence of the jury, defense counsel stated defendant indicated to counsel that he would testify consistent with his preliminary hearing testimony. Counsel had warned defendant about perjury but defendant planned to go forward with his testimony, so counsel moved to withdraw from representation.
In order to make sense of this, we here explain defendants preliminary hearing testimony. Defendant testified (against counsels advice) that there was a "third party" in the car who "pulled out a gun and told me that I had to run. If I wouldnt run, that she would either shoot me or the second passenger that was with me, Lynette." He knew this third person only as "Rose." Because the Beetle had tinted windows, the officer must not have seen the third person, who sat in the back. He did not tell the officer about "Rose" because "she already had my address and my moms and my familys life was threatened as well, the only thing I could do was run. And thats when she left."
When the trial court asked defense counsel whether there was "any reason for me to believe that any other attorney would have any different posture?" counsel did not think so. The trial court denied the motion to withdraw.
Defense counsel then advised that he would put defendant on the stand and invite narrative testimony. In response to prompting by the court, defense counsel advised defendant off the record that counsel could not use testimony he believed was perjured in argument to the jury.
In his trial testimony defendant referred to "the fact that I, you know, I have a record or that I was on parole —" and then said he did not know whether he was on parole or that there was a warrant. He was forced and "[w]hen youre at gunpoint, you have no choice but to do what youre told to do." He was told to run.
On cross-examination, defendant avoided answering who the other person was, but eventually said it was Lynette Mize, who pointed the gun at him while she was in the back seat. He admitted lying at the preliminary hearing when he said "Rose" held the gun on him. He testified there were informants in jail and he wanted "to protect my truth until I got to jury trial." The jury trial was the first safe opportunity he had to tell the truth because his "familys life was in danger." He admitted he was a convicted felon.
Defense counsels brief (2-page) argument emphasized the burden of proof, the presumption of innocence and the need for a unanimous verdict. The trial court gave a necessity instruction. The jury convicted on both counts.
DISCUSSION
I. Incompetence of Counsel
Defendant contends trial counsel was incompetent because he did not object to evidence of defendants prior criminality and failed to advocate on behalf of defendant. We disagree.
A. Evidence of Prior Criminality
Noting that motive is not an element of the crimes charged, appellate counsel asserts it was a "collateral" matter and evidence of defendants prior criminality should have been excluded as unduly prejudicial character evidence. Thus, appellate counsel urges trial counsel was incompetent for failing to interpose appropriate objections at trial.
"Because the decision whether to object is inherently tactical, the failure to object to evidence will seldom establish incompetence." (People v. Freeman (1994) 8 Cal.4th 450, 490-491; see People v. Frierson (1979) 25 Cal.3d 142, 158.)
We note that while Officer Lambert was describing what defendant had said, the trial court reminded defense counsel that there had been a chambers discussion and asked if he was "still okay with that? [¶] [Defense counsel]: I see no current problem, your Honor." We do not know what was discussed at the chambers conference, as defendant has not supplied a transcript or settled statement. Trial counsel may have lodged an objection, or may have expressed a tactical reason for not objecting. On this record we cannot tell.
In any event, the evidence that defendant had an outstanding arrest warrant, told the arresting officer that he had been afraid of what would happen and that he had already had enough problems, clearly showed his motive to flee, was directly relevant to the charges and did not unfairly paint him as a bad person: It painted him, accurately, as a person who had a specific reason to run away from the police. An objection claiming this was unduly prejudicial character evidence, as appellate counsel posits, would have failed. (See People v. Scheer (1998) 68 Cal.App.4th 1009, 1020, fn. 2 ["Service of a prison term is highly probative to show a motive to flee apprehension for the current crime, i.e., to avoid service of future additional prison time"].) It is not incompetence to refrain from making a futile objection. (See People v. Eckstrom (1974) 43 Cal.App.3d 996, 1002-1003.)
We cannot say on this record that trial counsel was incompetent in failing to object to this evidence.
B. Failing to Advocate for the Client
Appellate counsel faults trial counsel for not embracing defendants claim of necessity, and in particular in undermining defendants testimony by not mentioning it in argument to the jury. The record does not support this claim.
We have previously explained that if trial counsel elects to make a closing argument, she or he has a duty to make a competent argument, and in particular "cannot argue against" the client. (People v. Diggs (1986) 177 Cal.App.3d 958, 970.)
But a defendant has the right to testify, regardless of counsels wishes. (People v. Nakahara (2003) 30 Cal.4th 705, 717.) At the preliminary hearing, against his attorneys advice, defendant chose to testify. He essentially repeated that story at trial, although he admitted "Rose" did not exist and testified Mize was the person with the gun.
There is no evidence in the record on appeal to support defendants story other than defendants testimony.
Absent any supporting evidence we cannot fault trial counsel for declining to believe defendant. Trial counsel properly brought to the trial courts attention his concerns and the ethical issues it presented to him. He then called defendant to the stand and invited him to narrate his story. At closing argument he emphasized the burden of proof, the presumption of innocence and the need for jury unanimity. On this record, that was all any attorney could do. (See People v. Bolton (2008) 166 Cal.App.4th 343, 357-358.)
Appellate counsel concedes that if trial counsel knew defendant was lying, he acted properly, but argues an attorney may act in disbelief of a clients story only if the attorney has "actual" knowledge the client is lying.
We agree that mere suspicion does not authorize an attorney to reject potentially exculpatory evidence, because California Supreme Court precedent holds that a "`"lawyer should not conclude that testimony is or will be false unless there is a firm factual basis for doing so. Such a basis exists when facts known to the lawyer or the clients own statements indicate to the lawyer that the testimony or other evidence is false."" (People v. Riel (2000) 22 Cal.4th 1153, 1217.) This appears to set the bar lower than "actual" knowledge, but we need not decide that linguistic nicety in this case.
As the Attorney General points out, it is not possible to establish on this record that trial counsel was incompetent for failing to believe defendant. The record does not show what steps trial counsel took to investigate the point, nor what standard of proof he used to conclude defendant was lying. The same attorney represented defendant at the preliminary hearing (in July 2007) and at trial (in September 2007) and the record does not show what investigative steps were taken in between. For all we know, defendant confessed to his attorney, and said he would lie on the stand. Because the record does not preclude a rational tactical reason for counsels actions — and indeed, supports the conclusion counsel did all that he could in the circumstances —defendants remedy, if any, lies in habeas corpus. (People v. Ledesma (2006) 39 Cal.4th 641, 745-746.)
II. Penal Code section 654
Defendant contends the trial court should have stayed the misdemeanor sentence for resisting, because his act of fleeing on foot was a continuation of his general objective of fleeing from the police. We agree.
"Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 645 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Neal v. State of California (1960) 55 Cal.2d 11, 19.)
Multiple objectives may be found even when they are borne simultaneously, or where acts are performed in rapid order. (See People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212.) And an objective cannot be framed overly broadly, so as to allow a defendant to escape appropriate consequences for distinct criminal acts. (See People v. Perez (1979) 23 Cal.3d 545, 552-554 ["sexual gratification" too broad; multiple punishment for different sex crimes committed on one occasion upheld].)
The Attorney General notes that the statutes cover different acts and the crimes were "distinct" and argues that "the trial court could reasonably find that appellants vehicular evasion and subsequent flight on foot were two separate efforts to avoid apprehension and arrest." However, he does not explain on what basis the evidence supports the conclusion that defendant bore multiple criminal objectives.
The facts show defendant wanted to get away from the police. When his car became inoperable, he fled on foot.
In People v. Britt (2004) 32 Cal.4th 944, Britt was a registered sex offender who moved from one county to another and failed to tell either county about the move. The lower court held that he bore two criminal objectives, but the California Supreme Court reversed, reasoning "finding separate objectives here — to mislead or conceal information from the law enforcement agency in each county — parses the objectives too finely. . . . Here the objective — avoiding police surveillance — was achieved just once, but only by the combination of both reporting violations." (Id. at p. 953.) Based on Britt, we conclude the record does not support a finding of multiple objectives.
Our conclusion is also supported by the "escape" cases, as what defendant did was similar to a formal "escape" from custody. In those cases, where a crime is committed in order to escape, multiple punishment is barred. (In re McCoy (1968) 266 Cal.App.2d 739, 740 [Pen. Code, § 654 violated where "The robbery was a part of and intended to consummate a plan of escape"]; followed by People v. Chacon (1995) 37 Cal.App.4th 52, 65-66.) This is unlike cases involving multiple violent acts during an escape, or attempted escape, and unlike cases where an escape is accomplished, and a prisoner commits further, distinct, crimes to remain free. (People v. Macias (1982) 137 Cal.App.3d 465, 470 ["Stabbing the victim in the abdomen with the knife was patently inconsistent with his escape plan"]; People v. Guevara (1979) 88 Cal.App.3d 86, 90-91 [kidnap to facilitate reaching escapees ultimate destination, multiple punishment for kidnap and escape upheld]; People v. Schnittspan (1967) 250 Cal.App.2d 951, 953 [crimes committed 48 hours after escape].)
Here, no separate act of violence or separate victims were involved in connection with defendants general objective of evading capture, and he had not completed his escape in the car when he continued his attempt on foot. He had one criminal objective, to avoid being arrested. Accordingly, sentence on the misdemeanor resisting charge must be stayed.
III. Sixth Amendment claims
The probation report shows defendant committed misdemeanor petty theft in 1992, felony possession for sale of marijuana in 1994 (for which he was sent to state prison), federal felony of possession with intent to distribute marijuana in 1996 (for which he was sent to federal prison), misdemeanor domestic violence in 1998, parole violations in 1999 and 2002, possession of a handgun by a felon in 2003 (for which he was sent to state prison) and failure to appear while on release on bail in 2004 (for which he was given a prison sentence combined with his domestic violence sentence). At sentencing, defense counsel had "no quarrel with anything" in the probation report, therefore we presume it is factually correct. (See People v. Evans (1983) 141 Cal.App.3d 1019, 1021.)
The trial court imposed the upper term of three years on the felony because of defendants numerous prior convictions and poor performance on parole. The court added a year for each of the prior separate prison terms, for a total of five years in prison. Later, the court imposed a concurrent 30-day sentence for the misdemeanor.
The prior record made defendant eligible for the upper term, therefore the Sixth Amendment claim lacks merit. (People v. Black (2007) 41 Cal.4th 799, 815-816; People v. Wilson (2008) 164 Cal.App.4th 988, 991-992; People v. Stuart (2008) 159 Cal.App.4th 312, 314.)
Defendant acknowledges we will reject his attacks on the Black line of cases, but states he wants to preserve those issues for review. The claims are preserved.
DISPOSITION
The sentence is modified by imposing a stay (Pen. Code, § 654) on the 30-day sentence for the resisting count (Pen. Code, § 148) and in all other respects the judgment is affirmed. The trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation a new abstract of judgment.
We concur:
SCOTLAND, P. J.
DAVIS, J.