Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County. Harry L. Jacobs, Commissioner, No. MF47762
Eleanor M. Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Kari L. Ricci, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J.; Levy, J.; and Hill, J.
INTRODUCTION
Appellant Samuel James McKee was convicted after jury trial of two counts of burglarizing the same residence on different dates and one count of evading arrest; a special allegation that the residence was occupied during the second burglary was found true. Appellant’s probation was revoked and he was sentenced to an aggregate term of six years eight months imprisonment.
Appellant contends defense counsel was ineffective. We are not convinced and will affirm the judgment.
FACTS
Shortly before 2:00 a.m. on January 3, 2008, University of California Merced Police Officer Maria Botwright observed an unoccupied pickup truck parked in an unauthorized location. The truck was registered to appellant. Shortly thereafter, fellow officer Josephine Salcido arrived in a separate patrol vehicle. The officers attempted to set up a perimeter to monitor the truck. As Officer Botwright was parking her vehicle, she saw the truck speed away at 75 miles per hour. She activated her vehicle’s emergency lights and pursued the truck. After a chase, the truck stopped. Two men exited the truck and ran away in opposite directions. The man who ran from the passenger’s side was roughly appellant’s height and build. Both men escaped.
Unless otherwise specified, all dates refer to 2008.
During an inventory search of the truck, officers found a brown wallet containing appellant’s driver’s license, a cell phone, a black knit beanie hat and a green pillowcase containing 23 boxes of collectible coins. Some of the boxes had shipping labels indicating they belonged to Kraig Stockard with an address located in Merced. Additional collectible coins were found in the glove compartment.
Solely to enhance readability, members of the Stockard family will be referenced by their first names. No disrespect is intended or implied.
The dispatcher spoke with appellant’s father, who said that his son owned the truck. Appellant’s father also said he would try to reach appellant on his cell phone. Soon thereafter, the cell phone found in the truck rang and the caller identification read “dad.” Officer Salcido scrolled through the numbers stored in the cell phone and observed entries for “coins.”
At approximately 4:00 a.m., Merced County Sheriff’s Deputy Jeffrey Rogers and his partner drove to the Stockards’ home to investigate a possible burglary. The residence’s rear sliding glass door was open. Kraig’s father, William, told the officers that he, his wife, and one of their sons went to bed between 12:30 and 1:00 a.m. The rear door sliding door was closed and all the doors were locked when they retired for the night. Rogers asked William if he was missing any coins. William went to a file cabinet where Kraig stored his coin collection. A drawer had been pulled open and numerous boxes of collectible coins with a total value of approximately $10,000 were missing.
Appellant resided at a drug and alcohol rehabilitation facility in Modesto and Ronnie Hawkins was his roommate. Hawkins told Botwright that on the evening of January 2, appellant dropped him off at a “Lorna’s” house in Merced at approximately 11:00 p.m. Hawkins said that he tried to call appellant numerous times between 1:30 and 2:30 a.m. to pick him up but appellant did not answer the calls. Lorna drove him back to Modesto; he arrived back at the rehabilitation facility around 3:30 a.m. on January 3. Hawkins also said that appellant was having money difficulties. Appellant had “come up on some coins somewhere a few weeks ago at one of his job sites.” Appellant kept the coins locked in the glove compartment of his truck. Appellant sold the coins and repaid him a debt of $80 from a wad of hundred dollar bills. Hawkins “asked him where he got all that money and [appellant] said, the coins.”
Hawkins did not know Lorna’s last name or her address.
Hawkins was given immunity in exchange for his testimony. Hawkins has a prior theft conviction. Hawkins denied any involvement in burglarizing the Stockards’ house or the police chase. Hawkins testified that on the evening of January 2 he wanted to borrow appellant’s truck so he could visit Lorna. Appellant was already drunk, having “pounded” a fifth of vodka. Hawkins drove appellant to a liquor store in appellant’s truck. Hawkins purchased a fifth of vodka for appellant so that appellant would let him borrow his truck. Instead, appellant got into the driver’s seat and announced that he was going with Hawkins. Hawkins allowed appellant to drive him to Merced, even though appellant was drunk. Appellant dropped Hawkins off at Lorna’s house around 10:45 p.m. Lorna drove him back to the facility around 3:30 a.m. The facility manager, Ted Stinson, asked Hawkins where appellant was because he had received a phone call from appellant’s mother reporting that the police found appellant’s truck.
Ted Stinson testified that appellant and Hawkins broke curfew on January 2. Hawkins returned to the facility before appellant did. Appellant returned at 7:00 a.m. on the following morning in an intoxicated state. Appellant announced that he had been drinking and would be moving out.
William hired appellant’s father to build a fence in December 2007. Appellant assisted his father for a few days. On one occasion, appellant’s father left appellant alone at the Stockard residence while he purchased supplies. Appellant called his father to find out how long he would be gone, stating that he needed to use the bathroom.
DISCUSSION
Ineffective assistance of counsel was not established.
The standard applied to ineffective assistance of counsel claims is axiomatic. Appellant bears the burden of showing that counsel’s performance fell below an objective standard of reasonableness and that, but for counsel’s unprofessional errors and omissions, it is reasonably probable that the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 693-694.) Inadequate assistance of counsel must be proven as “a demonstrable reality and not a speculative matter.” (People v. Stephenson (1974) 10 Cal.3d 652, 661.) There are countless ways to provide effective assistance and even the best attorneys would not defend a client in the same way. (People v. Duncan (1991) 53 Cal.3d 955, 966.) If there is a reasonable tactical basis for a challenged action or inaction, the ineffective assistance claim will fail. (See, e.g., People v. Scott (1997) 15 Cal.4th 1188, 1213-1214 (Scott).)
Appellant contends defense counsel was ineffective because she asked Hawkins two questions that effectively conceded his presence in the truck. As will be explained, these questions had a tactical basis that is apparent from the appellate record. Also, it is not reasonably probable that the jury would have returned a more favorable verdict if they had not been posed. Therefore, appellant did not show deficient performance or prejudice.
I. Facts
During cross-examination of Hawkins, defense counsel asked, “Now isn’t it true that the night you left with Sam, that he actually passed out before you even got -- that he was the passenger in the car and had actually passed out before you ever even got to Merced?” Hawkins replied, “No, ma’am.”
During recross-examination of Hawkins, defense counsel asked Hawkins if he “ask[ed] the officer several times what did Sam tell them; is that true?” Hawkins replied, “I wanted to know how my name was involved.” Defense counsel asked, “Okay. Weren’t you afraid that Sam might have told the truth about being a passenger in the truck and that you were the actual -- that you were the one that drove the truck to Merced?” Hawkins replied, “That wouldn’t be the truth. But, no, I just wanted to know how my name was even brought up in the mix. I didn’t know how my -- I was even involved in this situation.”
The defense did not call any witnesses.
During defense counsel’s closing argument, she raised several lines of defense. She argued that Hawkins was a convicted felon who was not a credible witness. The only thing she believes Hawkins “said on that stand that was actually true was my client had been drinking that night.” Appellant was too drunk to drive to Merced without getting stopped by the police for drunken driving and he was too drunk to silently sneak into the house, pry open the file cabinet and steal the coins without awakening someone. Due to appellant’s extreme intoxication, he could not have formed the specific intent to commit a burglary or elude the police. Hawkins drove the truck to Merced and was driving during the police chase. Appellant was not the person driving the truck and was not “one of the two people in that truck that morning.” Property belonging to the Stockard family was found in the truck because someone committed a burglary that morning and that person probably left the crime scene driving appellant’s truck. Hawkins could have committed the January burglary with someone else or two unidentified people could have committed this crime. The People did not prove beyond a reasonable doubt that the Stockards’ home was burglarized in December or that appellant committed this crime.
II. Appellant did not prove deficient performance.
There is a reasonable tactical basis for the two challenged questions that is apparent from the appellate record. Based on defense counsel’s closing argument, it is obvious that the challenged questions were intended to elicit evidence supporting three lines of defense: (1) Hawkins was lying when he testified during direct examination that appellant drove to Merced and, therefore, Hawkins is not a credible witness; (2) Hawkins drove the truck that evening because appellant was so intoxicated that he had passed out in the passenger’s seat; and (3) due to appellant’s extreme intoxication, he lacked the ability to form the specific intent necessary to commit a burglary or to elude the police.
There was some evidence tending to show that appellant was drunk and that he was the truck’s passenger. Stinson testified that when appellant returned to the facility, he was visibly intoxicated and said that he had been drinking. Botwright testified that appellant’s height and build were similar to the man who exited from the passenger side of the truck. Therefore, it was reasonable for defense counsel to ask questions during examination of Hawkins designed to elicit testimony proving that Hawkins was the driver because appellant was too drunk to drive. That defense counsel did not succeed in eliciting the desired evidence did not render the decision to ask the questions objectively unreasonable. Although the intoxication defense failed, defense counsel was not unprofessional for pursuing it. “Many defenses are hopeless, or nearly so. A defense attorney has to make do with the facts presented.” (Scott, supra, 15 Cal.4th at p. 1215.)
We recognize that the intoxication defense is factually inconsistent with the alternative defense theory that appellant was not in the truck that evening. Under the circumstances presented here, it was not objectively deficient for defense counsel to have presented both lines of defense. Appellant’s claim that he was not in the truck was a weak line of defense. In addition to Hawkins’s testimony, there was both physical evidence and corroborating testimony tending to prove appellant’s presence in the truck. Appellant’s cell phone and his wallet were found in the truck. Stinson testified that appellant broke curfew that evening with Hawkins and did not return to the rehabilitation facility until the next morning. Botwright saw a person generally matching appellant’s height and build running from the truck after the chase. Appellant did not provide any alibi. Therefore, it was reasonable for defense counsel to proffer an alternative defense theory such as intoxication that had some evidentiary support, even if it was factually inconsistent with the position that appellant was not in the truck.
III. Appellant did not establish prejudice.
In additional to Hawkins’s testimony, the People produced strong evidence of guilt. Appellant’s father confirmed that he left appellant alone at the Stockard residence in December and received an unusual phone call from appellant asking when he would return. Appellant owned the truck driven in the high-speed chase. Appellant’s wallet containing his driver’s license and appellant’s cell phone were found in the truck along with a pillowcase containing boxes of coins. Additional coins were found in the truck’s glove box. Appellant’s cell phone had entries stored under the word “coins.” The rear sliding door of the Stockards’ home had been opened and coins had been stolen from a filing cabinet. Stinson testified that appellant broke curfew with Hawkins on January 2 and did not return until the following morning. Botwright saw a person generally matching appellant’s height and build running from the truck after the chase. It is not reasonably probable that the jury would have concluded appellant did not commit the burglaries or elude police if defense counsel had not asked the two challenged questions.
DISPOSITION
The judgment is affirmed.