Opinion
No. B164515.
10-15-2003
THE PEOPLE, Plaintiff and Respondent, v. ENRIQUE CHIMAL MARTINEZ, Defendant and Appellant.
H. Russell Halpern, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar, Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
Enrique Chimal Martinez was convicted by jury of two counts of robbery (Pen. Code, § 211)[] and personal use of a firearm (§12022.53, subd. (b)), and sentenced to 17 years 4 months state prison. He appeals on the ground of ineffective assistance of counsel. We affirm.
All statutory references are to the Penal Code.
Facts
On February 10, 2002, at about 5:00 a.m., appellant and a man drove up to a Bellflower gas station in a van. Alfonso Morales was by his car pumping gas. Appellant asked Morales for directions, drew a handgun, and said, "This is a robbery." The handgun was black, old and "beat up," and looked like a revolver.
Appellant took Morales wallet, tried to break the car window with his fist, and opened the car door. He demanded money from the passenger, Nelson Ayala, and took $260. Ayala looked at the handgun. Appellant said: "Hey, what do you think? Do you think this is a play one? Do you want to try it?"
Appellant drove off in the van. Morales and Ayala followed and called 911 on a cell phone. The police stopped the van about seven miles from the gas station and recovered the money and Morales wallet but not the handgun.
At trial, defense counsel argued that the handgun "was a fake. It was a stick. It was a painted black stick that he used."
Effective Assistance of Counsel
Appellant argues that he was denied effective assistance of counsel because his attorney contested the firearm enhancement but not the robbery charge. To prevail on the claim, appellant must show deficient representation and resulting prejudice. (People v. Bolin (1998) 18 Cal.4th 297, 333; Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) Where there is strong evidence of guilt, counsel may, as a matter of trial tactics, concede some measure of culpability and offer the jury some other choice in the defendants favor. (E.g., People v. Bolin, supra, 18 Cal.4th at pp. 334-335.) "[ G]ood trial tactics demand[] complete candor with the jury. [Citation.]" (People v. Jackson (1980) 28 Cal.3d 264, 293.)
Counsel, for tactical reasons, only challenged the firearm enhancement which carried the greater punishment. Although Morales and Ayala had no trouble identifying appellant as the robber, their testimony about the handgun was less than clear. They denied that the handgun was a stick, but in saying so, cast doubt on whether appellant used a firearm.
Defense counsel argued that if appellant had a handgun, he would have used it rather than his fist to break the car window. Appellant also had to convince the victims that the handgun was real and not "a play one." Defense counsel emphasized that the victims followed the van and that appellant had no opportunity to throw the handgun away. Had appellant tossed the weapon, he also would have tossed the victims wallet before the van was stopped.
The prosecutor agreed that the missing handgun was a problem and told the jury: "Okay. So maybe he used a black stick. A painted black stick. Okay. Perhaps. And youll have to make that determination."
There is a strong presumption that counsels actions were based on sound trial strategy even when counsel concedes some degree of guilt. (People v. Freeman (1994) 8 Cal.4th 450, 498.) Because the robbery evidence was overwhelming, we cannot say that counsel was constitutionally ineffective in his attempt to make the best of a bad situation.[] (E.g., People v. McPeters (1992) 2 Cal.4th 1148, 1186-1187.) Appellant "fails to establish prejudice in light of the overwhelming evidence introduced against him. He fails to establish that his trial counsels performance deprived him of any meritorious defense, or to demonstrate a reasonable probability that the result would have been more favorable to him in the absence of any alleged ineffectiveness. [Citations]." (People v. Hart (1999) 20 Cal.4th 546, 632.)
Appellant argues that it was improper for counsel to tell the jury that appellant confessed to the arresting officers that he used a black stick rather than a firearm. That, however, was the state of the evidence at the preliminary hearing. Appellant wanted to testify at trial and would have been cross-examined about the confession. At the close of the Peoples case, he decided not to testify. "[C]ounsel had to base the tactical decisions on how the trial actually went, not how it might have gone." (People v. Freeman, supra, 8 Cal.4th 450, 498.)
The judgment is affirmed.
We concur: COFFEE, J. and PERREN, J.