Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA072096, James R. Dabney, Judge.
Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J.
Pedro Mendoza appeals from the judgment entered after a jury convicted him of two counts of robbery and one count of attempted robbery. Mendoza contends that trial counsel’s concession of his identity as the driver of the vehicle involved in the robberies was based on a misunderstanding of the law of aiding and abetting rather than a defensible strategy, thereby amounting to prejudicial ineffective assistance of counsel. We conclude that appellant failed to show on appeal that there was no tactical justification for counsel’s defense strategy and that appellant cannot show prejudice and thus affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
The District Attorney of Los Angeles County filed an information on October 20, 2009, charging appellant Pedro Mendoza and three codefendants with second degree robbery (counts 1 and 2, Pen. Code, § 211), and attempted second degree robbery (counts 3 and 4, §§ 664/211). With respect to all counts, it was further alleged that the offenses were committed for the benefit of and in association with a criminal street gang (§ 186.22, subd. (b)(1)(c)), a principal used a firearm (§ 12022, subd. (a)(1)), and a principal personally used a firearm while committing a crime for the benefit of a gang (§§ 12022.53, subds. (b) & (e)(1)).
The information also charged Jose Luis Hernandez, William Gonzalez, and Marlyn Aguilar with the same offenses but they are not parties to the appeal.
All further code section references are to sections of the Penal Code unless otherwise indicated.
Codefendant Jose Luis Hernandez was charged with personal use of a firearm, pursuant to section 12022.53, subdivision (b).
2. The Jury’s Verdict and Sentencing
On January 28, 2010, a jury convicted appellant of robbery and attempted robbery as charged in counts 1 through 3, but acquitted him of the attempted robbery alleged in count 4. With respect to counts 1 through 3, the jury found all of the special allegations to be not true. On March 24, 2010, appellant was placed on formal probation for a period of three years. On the same day, appellant timely filed a notice of appeal.
Appellant was tried jointly with Jose Luis Hernandez and William Gonzalez. Hernandez was convicted of the same counts as appellant but all of the enhancement allegations were found true with respect to Hernandez. Gonzalez was acquitted on all counts.
3. The Evidence Presented at Trial
On the evening of August 23, 2009, Damien Wilson, Yesenia and Cesar Herrera, and Marvin Williams were standing outside the apartment building located at 13935 South Kornblum Avenue in the city of Hawthorne. A gray sports utility vehicle (SUV) stopped in the middle of the street near the group. A man with a gun, later identified as codefendant Jose Luis Hernandez, got out of the SUV and approached the group with a gun.
Hernandez brandished his gun at the group of people and asked “Where are you from?” Wilson and the Herreras understood this question as an inquiry regarding street gang affiliation. After the group denied that they were affiliated with a gang, Hernandez held his gun inches from Wilson’s head and he ordered the group to empty their pockets. Hernandez picked up Wilson’s cellular telephone, wallet, and a few dollars that Wilson tossed onto the ground. Cesar Herrera handed Hernandez six dollars. Neither Williams nor Yesenia Herrera gave Hernandez any property.
As Hernandez got back into the SUV, another man, later identified as William Gonzalez, got out of the SUV and approached the group near the sidewalk. Although it was disputed whether Gonzalez actually said anything, Wilson believed Gonzalez had a gun in his hand and got out of the SUV in order to provide back-up assistance for Hernandez. The SUV started to drive away without Gonzalez. He yelled, “Wait, wait!” and the SUV stopped. He then entered the rear passenger seat before the SUV sped away.
At trial, Wilson testified that Gonzalez did not say anything after getting out of the SUV. Yesenia Herrera testified that Gonzalez “yelled something towards us.”
The police were called and they arrived within minutes. Approximately 20 minutes later and less than a mile away, the California Highway Patrol stopped a silver Honda SUV that appellant was driving. The license plate number matched the partial license plate number reported by the robbery victims. After removing Marlyn Aguilar from the Honda SUV, the Highway Patrol found a loaded.45 caliber handgun tucked in her waistband. The Highway Patrol also found Wilson’s cellular telephone and seven dollars in cash inside the SUV.
The police escorted Wilson and the Herreras one at a time to a location where the suspects were being detained. All three identified Hernandez as the gunman and Gonzalez as the second man who got out of the SUV. Although all three failed to identify appellant as the driver, they noted that appellant was wearing a hat covered by a “black sweater with the hood, ” like the driver of the SUV. The Herreras’ daughter, Zennie, saw a gray SUV driving away and she told police that the driver was wearing a “dark-colored hoodie.”
At trial, Wilson did not identify any of the people. During the preliminary hearing, Cesar Herrera initially identified appellant as the gunman who first got out of the SUV, and identified Gonzalez as the second gunman. However, after examining additional photographs at trial, Mr. Herrera identified Hernandez as the gunman and Gonzalez as the second man who got out of the SUV. During the preliminary hearing, Yesenia Herrera identified appellant as the gunman. After the hearing, the prosecutor informed her that she had identified the “wrong” people by confusing appellant and Hernandez.
After examining additional photographs at trial, Cesar Herrera identified appellant as the driver of the SUV.
Detective Keith Chaffin of the Hawthorne Police Department’s Gang Intelligence Unit testified that Hernandez was a self-admitted member of the “Surenos 13” street gang. Detective Chaffin also testified that to his knowledge appellant and Gonzalez were not members of any gang. Appellant did not testify or present any evidence in his defense.
DISCUSSION
Appellant contends that he was denied his right to the effective assistance of counsel at trial. We disagree.
In closing argument, defense counsel asserted that there is “[N]o evidence that you can give any weight to at all regarding Mr. Mendoza’s participation in this robbery other than the fact that he happened to be driving the car.” Defense counsel suggested two possible scenarios: (1) the prosecution’s theory that all four people in the car decided to rob all four people on the sidewalk for the benefit of a gang; or (2) appellant’s theory that appellant did not possess any knowledge of the robbery plans and did not form any intent to aid and abet in the robberies. Defense counsel stated that both appellant and Gonzalez were neither criminally sophisticated nor members of any gang.
Furthermore, defense counsel questioned whether Gonzalez was a facilitator providing back-up assistance for Hernandez because the police only found one gun. He suggested that it is unlikely that the perpetrators would dispose of one gun and keep the other. Also, counsel questioned why Gonzalez was initially left behind if he were truly an actor in the robberies. Defense counsel maintained that there was no evidence that appellant knew Gonzalez got out of the car in order to provide back-up assistance for the armed Hernandez. Alternatively, counsel suggested that Gonzalez could have gotten out of the car to prevent Hernandez from carrying out the robberies.
The Sixth and Fourteenth Amendments to the United States Constitution guarantee assistance of counsel at government expense to an accused indigent. (Gideon v. Wainwright (1963) 372 U.S. 335, 343-344.) A claim of ineffective assistance of counsel may be brought in a direct appeal where the record discloses on its face that there could be no tactical justification for counsel’s error. (People v. Lucas (1995) 12 Cal.4th 415, 437.) A defendant claiming ineffective assistance of counsel must show both: (1) deficient performance under an objective standard of professional reasonableness; and (2) prejudice under a test of reasonable probability of a different outcome. (People v. Memro (1995) 11 Cal.4th 786, 818.) An appellate claim of ineffective assistance of counsel generally requires an affirmative demonstration of prejudice. (United States v. Cronic (1984) 466 U.S. 648, 658-659; Strickland v. Washington (1984) 466 U.S. 668, 693.) Prejudice is presumed when counsel “entirely fails to subject the prosecution’s case to meaningful adversarial testing.” (United States v. Cronic, supra, 466 U.S. at p. 659.)
Appellant contends that trial counsel’s concession of appellant’s identity as the driver of the vehicle involved in the robberies was based on a misunderstanding of the law of aiding and abetting rather than a defensible strategy, thereby amounting to prejudicial ineffective assistance of counsel. For a person to be guilty as an aider and abettor, intent to aid and abet must be formed before or while the robbery is ongoing. (People v. Cooper (1991) 53 Cal.3d 1158, 1161.) Appellant contends that under the evidence it is unlikely that appellant lacked awareness of the robbery at the time he drove off with Hernandez. Defense counsel even noted that “[i]t couldn’t have been that difficult to look over their shoulder, or perhaps for the driver to look in the rearview mirror and see what was going on.” Therefore, appellant maintains that counsel effectively conceded his intent to aid and abet by: (1) conceding his identity as the driver; and (2) submitting that he was able to witness the robberies before driving away.
Although defense counsel conceded that appellant was the driver, “it is settled that it is not necessarily incompetent for an attorney to concede his or her client’s guilt of a particular offense.” (People v. Lucas, supra, 12 Cal.4th at p. 446.) As the California Supreme Court has recognized, trial defense counsel may act reasonably in conceding various degrees of guilt in order to maintain credibility with the jury. (People v. Freeman (1994) 8 Cal.4th 450, 498.) Thus, it can be a tactical justification to concede one of several charges, or a lesser charge, in order to retain credibility for other arguments. (United States v. Swanson (9th Cir. 1991) 943 F.2d 1070, 1075-1076.) In this case, defense counsel merely conceded identity, not intent or guilt. That concession was reasonable. Appellant was in the driver’s seat of the SUV approximately 20 minutes after the robberies were committed and the SUV was stopped by the highway patrol less than a mile from the crime scene. Appellant was found wearing a dark-colored hooded sweatshirt – the robbery victims described the SUV driver as wearing a “dark-colored hoodie.” Additionally, the highway patrol found Wilson’s cellular telephone and seven dollars in cash inside the SUV. Thus, there was convincing evidence that appellant was driving the SUV during the robberies.
Moreover, defense counsel’s suggestion that appellant’s act of driving away was a reasonable reaction to the terrifying events bolstered the argument that appellant never formed the intent to aid and abet during the robberies. So too did the argument that there was no evidence that appellant knew Gonzalez got out of the car in order to provide back-up assistance for the armed Hernandez. Indeed, we note that the jury acquitted Gonzalez of all charges, including possession and use of a firearm, thus further demonstrating that defense counsel’s argument that Gonzalez got out of the SUV to “get this fool [Hernandez] back in the car” and stop the robberies from occurring was reasonable.
In short, defense counsel’s argument subjected the prosecution’s case to meaningful adversarial testing by conceding appellant’s identity as the driver, but arguing he was not culpable. Defendants are not deprived of the effective assistance of counsel when counsel concedes incriminating evidence during closing arguments, but offers alternative arguments in the defendant’s favor. (People v. Hart (1999) 20 Cal.4th 546, 631.) Therefore, defense counsel effectively made a reasonable tactical decision that, if accepted by the jury, would have resulted in appellant’s acquittal. (See People v. Hart, supra, 20 Cal.4th at pp. 631 [valid tactical choice to concede some culpability].)
Even assuming defense counsel deficiently performed under an objective standard of professional reasonableness, there is no reasonable probability that appellant would have received a more favorable outcome absent the deficiency. The victims stated that the driver was wearing a “dark-colored hoodie” and the highway patrol found appellant in the driver’s seat wearing a dark-colored hooded sweatshirt 20 minutes after the robberies and approximately one mile from the crime scene. The highway patrol also found Wilson’s cellular telephone and seven dollars in cash inside the SUV. Under this evidence, it is not reasonably probable that a different result would have been reached even if trial counsel did not concede appellant’s identity as the driver. Moreover, counsel vigorously contested the prosecution’s theory that appellant formed the intent to aid and abet in the robberies.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P.J., MANELLA, J.