Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino CountySuper.Ct.No. FVI20024. John M. Tomberlin, Judge. Affirmed.
ORIGINAL PROCEEDING; petition for writ of habeas corpus. John M. Tomberlin, Judge. Denied.
Tracy J. Dressner, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Elizabeth S. Voorhies, Deputy Attorney General, for Plaintiff and Respondent.
HOLLENHORST, Acting P.J.
Based on two separate crimes that occurred less than one week apart, defendant and appellant Kevin Gerald McGraw and co-defendant Prentice Jones were charged by information with second degree robbery (Pen. Code, § 211, count 1) and attempted second degree robbery. (§§ 664/211, count 2.) The information also alleged that defendant personally used a gun in the commission of count 1 (§ 12022.53, subd. (b)), and that he had two prior strike convictions. (§§ 667, subds. (b) – (i) and 1170.12, subds. (a) – (d).) Following a bifurcated jury trial, a jury found defendant not guilty on count 1, but guilty on count 2. The trial court found true the prior strike conviction allegations. The court sentenced defendant to a term of 25 years to life in state prison.
All further statutory references will be to the Penal Code, unless otherwise noted.
On appeal, defendant contends that there was insufficient evidence to support his conviction of attempted robbery. Defendant also filed a petition for writ of habeas corpus (writ petition), in which he claims ineffective assistance of counsel (IAC). We have considered the writ petition with the appeal for the purpose of determining whether an order to show cause should issue. We affirm the judgment and summarily deny defendant’s writ petition.
BACKGROUND
On September 12, 2004, Adana Bawanah was working at a Cigmart store (the store). At around 3:00 p.m., a man came into the store, pointed a gun at Bawanah’s face, and ordered him to move to the back of the store. The robber was wearing a small mask to cover his mouth. The robber wanted Bawanah to close and lock the front door and turn off the lights. The robber communicated with an accomplice over a walkie-talkie, telling the accomplice that the situation was under control and asking that person to come into the store through the back door. At one point, Bawanah ran to the back door and locked it from the outside. He then got in his car and drove to the front of the store to lock the front door. At that time, he passed a Black male driving a U-Haul truck toward the back of the store. After locking the front door, Bawanah went to the grocery store next door to call the police. When the police arrived and checked the store, no one was there and nothing was missing. Within one hour of the attempted robbery, the police took Bawanah to view a U-Haul truck in Apple Valley. The truck looked like the truck he saw approaching the back of the cigarette store.
On September 20, 2004, defendant was arrested for being in possession of a .38 revolver. He was leaving an apartment in Apple Valley when the police contacted him. Officer Todd Newton found the gun on a coffee table inside the apartment. Bawanah later identified the gun found as being similar to the gun that was used in the attempted robbery.
At trial, Officer Newton testified regarding his interview of defendant that took place on September 21, 2004, at 2:30 a.m., after defendant’s arrest. The interview was taped, but the battery in the tape recorder died about 30 to 40 minutes after the interview began. Since Officer Newton did not notice that the recorder had stopped, a portion of the interview was not taped. Officer Newton estimated that the last five or 10 minutes of the interview was not taped. Before interviewing defendant, Officer Newton advised him of his Miranda rights, which defendant waived.
Miranda v. Arizona (1966) 384 U.S. 436.
Officer Newton testified that he asked defendant questions concerning a robbery of an Ultramar gas station on September 6, 2004 (count 1). A gun similar to the one recovered from defendant’s apartment was used in that robbery. Defendant eventually admitted to Officer Newton that he was the gunman in that robbery and that his accomplice was Prentice Jones, also known as Toon. Officer Newton testified that Bawanah identified Toon as the gunman in the attempted robbery at the Cigmart.
Officer Newton testified that, while questioning defendant about the Cigmart robbery, he told defendant that a U-Haul truck was used in the attempt. Defendant initially denied that he was involved, but when Officer Newton falsely advised him that his fingerprints were found in the U-Haul, defendant admitted he was in the U-Haul. Officer Newton also testified that, during the interview, he falsely told defendant that a video photo was taken during the Ultramar robbery, and that the police were able to identify him by facial recognition, through a computer-generated search.
Officer Newton further testified that defendant admitted that Toon had planned the Cigmart robbery and asked him to assist. Toon rented the U-Haul and asked defendant to drive the U-Haul down the alley where the store was. Defendant and Toon planned to take any cash that was there and empty out the store. Officer Newton testified that defendant said they used handheld radios during the robbery. Officer Newton further testified that defendant told him the U-Haul was left in Apple Valley, which is where the police eventually found it. In addition, Officer Newton testified that the tape cut off at some point before defendant’s admission that he agreed when Toon asked him to help him with the robbery.
Defense counsel cross-examined Officer Newton and then asked for the interview tape to be played in court for the jury. Defense counsel provided transcripts of the tape to the jury. The court advised the jury that if it heard something in the tape that was different than what was in the transcript, it should ignore the transcript and rely on what was heard on the tape. The tape was played for the jury.
During his closing argument, defense counsel discussed the tape extensively and explained why he played it for the jury. He emphasized that defendant was interviewed by three officers, who used five to seven lies to get him to confess. Nonetheless, defendant repeatedly denied being involved with the robbery. Defense counsel then stated that “it was only at the very, very end—at the very end where it looked like he was just starting to crack, cave in.” Defense counsel stressed that the jury should listen to the tape again carefully because the tape showed that defendant became confused during the interview. Defendant claimed that he was in the U-Haul because he was helping Toon to move some furniture. However, when the police asked defendant if he went into the Cigmart, he said “yeah, we both went in.” Defense counsel pointed out that something was wrong with this evidence because Bawanah testified that there was only one robber inside the store. Defense counsel stated: “You can argue and say maybe he’s throwing the cops a curve. In any event, it’s up to you to listen, look at this and weigh it out. It just doesn’t make sense. . . . It could be [defendant] giving the police what they wanted to hear, but putting a little wrinkle to show us to leave a little footprint there that says hey, this is a false confession, and I am going to leave it to you folks to decide that. [¶] And so with regard to the confession, you got the tape, and in that tape is very good evidence for you to play it.”
ANALYSIS
I. There Was Sufficient Evidence to Support Defendant’s Conviction
Defendant contends that his conviction of attempted robbery should be reversed because there was insufficient evidence to support it. We disagree.
A. Standard of Review
In reviewing a claim regarding the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether any reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Carter (2005) 36 Cal.4th 1114, 1156.) “Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 403.)
The evidence here undisputedly showed that defendant waived his Miranda rights and confessed to participating in the attempted robbery of the Cigmart. Officer Newton testified that defendant said Toon planned the Cigmart robbery and asked him to assist by driving the U-Haul down the alley where the store was. Defendant and Toon planned to take the cash and goods from the store. Officer Newton testified that defendant admitted he was in the U-Haul, and said they used handheld radios during the robbery. In addition, defendant told Officer Newton that they left the U-Haul in Apple Valley, which was where the police found it.
Furthermore, the store clerk’s testimony corroborated defendant’s confession. Bawanah testified that a man came into the store and pointed a gun at his face. The robber communicated with an accomplice over a walkie-talkie, telling the accomplice that the situation was under control and asking that person to come into the store through the back door. Bawanah testified that, at one point, he ran out the back door and saw a Black male driving a U-Haul truck toward the back of the store. Moreover, approximately one week later, the police arrested defendant for possession of a .38 revolver. Bawanah identified the gun found as being similar to the gun that was used in the attempted robbery.
Defendant argues that there was no physical evidence that tied defendant to the U-Haul truck or the Cigmart store. He further contends that the prosecution mainly relied on statements made during his interrogation, specifically that he and Toon both entered the Cigmart, and that their plan was to steal cigarettes. Defendant argues that these “‘admissions’” were not believable, since Bawanah testified that only one person entered the store, and since it was a “no-brainer” that someone would steal cigarettes from a cigarette store. Defendant further claims that Officer Newton’s testimony that defendant and Toon used walkie-talkies was refuted by the taped interview, which did not contain any mention of walkie-talkies.
Defendant completely ignores the evidence of his admission to Officer Newton that he participated in the robbery. Moreover, the fact that the taped interview contained no mention of walkie-talkies is meaningless, considering that the tape cut off during the interview, and the last five to 10 minutes of the interview were not taped.
At oral argument, defendant argued that he was essentially convicted of attempted robbery based on a confession that never occurred. First, he argued that there was no confession on the tape. He pointed out that Officer Newton testified that, once the tape was cut off, the only thing defendant talked about was the Ultramar robbery in count 1. Officer Newton testified that he believed the only thing that was not caught on tape was defendant admitting he was the gunman in count 1. However, we note an apparent discrepancy in the evidence. Newton also testified that he did not actually recall when the tape player cut off during the interview. Then, on redirect examination, the prosecutor stated that when the tape cut off, Officer Newton was apparently still interviewing defendant regarding the U-Haul that was used in the attempted robbery; Officer Newton agreed. When the prosecutor asked him if defendant gave “further details” as to how the attempted robbery played out, Officer Newton said, “He really doesn’t go into that too much other than to say Toon asked him, and he agreed to help him.” This testimony indicates that defendant admitted he agreed to participate in the robbery, off the tape. Since conflicts in the evidence must be resolved in favor of the judgment (People v. Poe (1999) 74 Cal.App.4th 826, 830 (Poe)), there was evidence of defendant’s confession that was not on the tape.
Second, at oral argument, defendant claimed that his conviction was essentially based on Officer Newton’s testimony that, in response to the question, “What were you there to take?,” defendant said, “Cigarettes. Basically junk to me.” Defendant claimed that he did not say “cigarettes”, but rather, he said, “s---.” He argued that he was describing what he was doing when he was moving furniture. He further asserted that, in his supplemental habeas petition, he presented “plenty of evidence that what [he] said was “s---.” We note that the only “evidence” presented was a handwritten portion of an unsworn, self-serving letter that defendant wrote to his counsel, claiming that he did not say “cigarettes.” Furthermore, this disputed portion of the interview was on the tape, and it was up to the jury to determine what defendant said. During closing arguments at trial, defense counsel argued that defendant became confused during the interview and was still thinking about moving furniture, when answering questions about helping Toon. Defense counsel properly submitted the tape of the interview to the jury and urged the jurors to listen to the tape and decide if defendant confessed.
The jury took a considerable amount of time to evaluate the evidence presented, and notably sent three questions to the court about the tape as evidence. Ultimately, the jury found Officer Newton’s testimony regarding defendant’s admission, and Bawanah’s corroborating testimony, to be credible. It is apparent that the jury simply rejected defendant’s claim that he was only talking about moving furniture, when he admitted to helping Toon. We may not redetermine the credibility of witnesses or reweigh any of the evidence, and we will not retry the case at the appellate level. (Poe, supra, 74 Cal.App.4th at p. 830.) Thus, viewing the evidence in the light most favorable to the judgment, as we must, we conclude that there was sufficient evidence to support defendant’s conviction.
II. Defendant Has Failed to Demonstrate That He Received IAC
Defendant asserts in his habeas corpus writ that his trial counsel rendered ineffective counsel by: 1) failing to move to suppress the evidence of his statements made to the police on the ground that they were involuntary; 2) failing to seek redaction of certain portions of the tape-recorded interview; 3) failing to object when the prosecutor allegedly vouched for Officer Newton’s credibility; 4) failing to object when the prosecutor argued that defendant’s motive in committing the robbery was his need for money; and 5) failing to ensure that the audiotape was accurately transcribed. This court must determine whether to issue an order to show cause or summarily deny the petition. (People v. Duvall (1995) 9 Cal.4th 464, 475.) We conclude that defendant has failed to meet his burden of providing sufficient facts to support his IAC claim.
To demonstrate IAC, a defendant must establish that his counsel’s performance was deficient under an objective standard of professional competency and that there is a reasonable probability that, but for counsel’s errors, a more favorable determination would have resulted. (People v. Holt (1997) 15 Cal.4th 619, 703.) If the defendant makes an insufficient showing on either one of these components, the claim fails. (Ibid.) “Moreover, ‘“a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” [Citation.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126 (Rodrigues).)
A. Defendant’s Statements Were Voluntary
Defendant contends that his trial counsel was ineffective for failing to move to suppress his statements to the police. When a defendant claims IAC based on his counsel’s failure to bring a motion to suppress evidence, the defendant is required to show that the motion would have been successful. (People v. Frye (1998) 18 Cal.4th 894, 989.) We therefore must determine whether defendant would have prevailed on a suppression motion based on the involuntariness of his statements.
“A statement is involuntary if it is not the product of ‘“a rational intellect and free will.”’ [Citation.] The test for determining whether a confession is voluntary is whether the defendant’s ‘will was overborne at the time he confessed.’ [Citation.] . . . [¶] A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions. [Citations.] A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence. [Citation.] Although coercive police activity is a necessary predicate to establish an involuntary confession, it ‘does not itself compel a finding that a resulting confession is involuntary.’ [Citation.] The statement and the inducement must be causally linked. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 404-405.) “[P]olice may use deceptive tactics in attempting to persuade a defendant to confess, [however,] such deception may be considered in deciding whether the totality of the circumstances indicate that the confession was involuntary. [Citations.]” (In re Shawn D. (1993) 20 Cal.App.4th 200, 213.)
Here, although the interview began at 2:30 a.m., as defendant asserts, the tape of the interview does not demonstrate that defendant was overly tired or unable to respond at that time. The questioning took place shortly after defendant’s arrest and lasted less than an hour. Furthermore, the evidence shows that defendant freely waived his Miranda rights at the start of the interview.
Defendant claims his statements to the police were involuntary because the officers who interviewed him lied about the evidence they had and promised him a lesser sentence if he confessed. However, the evidence does not reveal that defendant’s will was overborne by the officers’ lies or alleged promises. During the greater part of the interrogation, defendant maintained his innocence. Contrary to his claim that the officers’ lies about the evidence they had rendered his confession involuntary, the record shows that defendant did not confess in response to the lies. When Officer Newton told defendant that the police found his fingerprints in the U-Haul, defendant explained that he was in the U-Haul because he was helping Toon move some furniture. When the police said they had a picture of him driving the U-Haul and a witness who saw him driving near the Cigmart, defendant still did not confess. When the police told defendant that the clerk at the Ultramar gas station identified him from a photo lineup, defendant denied being involved in that robbery. When the police said the computer facial recognition program identified him as the robber in the Ultramar robbery, defendant still denied being involved.
Furthermore, although the police stated that if defendant confessed, the district attorney would “make [him] a very sweet deal,” and that he could “make it easier on [himself]” if he told them what happened, defendant did not confess. The police did not promise defendant a specific lenient sentence; they simply assured him that it would be in his best interest to tell the truth. Moreover, when Officer Newton told defendant if he did not stop lying, he would go to state prison for a long time, defendant replied, “You’re gonna lock me up for a long [time] either way,” and “No matter what I say it’s gonna be a long time.” Thus, defendant apparently did not believe, and was not influenced by, the officers’ statements regarding his potential sentence.
Notwithstanding the above, while defendant ultimately confessed, he did not do so during the part of the interview that was taped. Accordingly, there is no evidence that the officers’ comments caused him to confess.
B. The Prosecutor Did Not “Vouch” for the Witness’s Credibility
Defendant contends that the prosecutor improperly “vouched” for prosecution witness Officer Newton. Defendant specifically claims that improper “vouching” occurred when the prosecutor stated that Officer Newton had been with the Sheriff’s Department for 15 years and then asked, “Why would somebody who’s been with the Sheriff’s Department 15 years want to put his career on the line for this crime?” Defense counsel failed to object, and defendant argues that there was no tactical reason for his counsel to have allowed the prosecutor’s argument to be made. We conclude that the prosecutor’s comments did not amount to “vouching.”
Impermissible “vouching” occurs when “‘the prosecutor places the prestige of the government behind a witness through personal assurances of the witness’s veracity or suggests that information not presented to the jury supports the witness’s testimony.’ [Citation.] . . . [¶] . . . ‘Prosecutorial assurances, based on the record, regarding the apparent honesty or reliability of prosecution witnesses, cannot be characterized as improper “vouching,” which usually involves an attempt to bolster a witness by reference to facts outside the record.’ [Citation.] No impermissible ‘vouching’ occurs where ‘the prosecutor properly relie[s] on facts of record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief.’ [Citations.]” (People v. Williams (1997) 16 Cal.4th 153, 257.)
Here, the prosecutor merely commented on Officer Newton’s length of service in the Sheriff’s Department in aiding the jury’s evaluation of Newton’s credibility. Since Officer Newton testified that he had been employed as a deputy sheriff for 15 years, the prosecutor properly relied on facts in the record and the inferences that could be drawn from them. Accordingly, defense counsel was correct in not raising a futile objection to the prosecutor’s comments.
C. Defendant Cannot Show Prejudice
Regarding his remaining claims, defendant has failed to establish that he was prejudiced by his trial counsel’s alleged errors.
Defendant argues that his trial counsel failed to redact certain prejudicial parts of the interview tape suggesting that he smoked weed, that he did not have money or a job, that he had been booked previously, that he just gotten out of jail and was on parole, and that he stole a gun. Defendant also asserts that his trial counsel erred in failing to object when the prosecutor argued that his motive for committing the offense was his need for money, and in failing to ensure that the tape was transcribed accurately. However, in light of Officer Newton’s testimony that defendant confessed to participating in the attempted robbery, and Bawanah’s corroborating testimony, we conclude that defendant was not prejudiced by these alleged errors on the part of his trial counsel. Without a showing of prejudice, we may reject defendant’s claim of IAC without determining the adequacy of counsel’s performance. (Rodrigues, supra, 8 Cal.4th at p. 1126.)
D. There Was No Cumulative Error
Finally, defendant contends the cumulative effect of his trial counsel’s alleged errors entitles him to relief. To the extent that we have rejected each and every claim of error individually, we find no cumulative error. Thus, we deny the writ petition.
DISPOSITION
The judgment is affirmed and the petition for writ of habeas corpus is denied.
We concur: KING, J., MILLER, J.