Opinion
H029031
12-14-2006
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY PORTER, Defendant and Appellant.
Defendant Anthony Porter was charged and convicted by jury of two counts of attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 187, subd. (a), 664) (counts one and two), shooting at an inhabited dwelling (§ 246) (count three), two counts of assault with a semiautomatic firearm (§ 245, subd. (b)) (counts four and five), person other than registered owner carrying loaded firearm (§ 12031, subd. (a)(2)(F)) (count six), and shooting from a motor vehicle (§ 12034, subd. (c)) (count seven) arising from drive-by shootings. The jury found true a gang enhancement allegation (§ 186.22, subd. (b)(1)) as to each charged offense. It found true the enhancement allegation for personally and intentionally discharging a firearm (§ 12022.53, subd. (c)) as to counts one and two. The jury also found true the enhancement allegation for personal use of a firearm (§ 12022.5, subd. (a)) as to counts four and five. The trial court granted a new trial on the gang enhancement allegations (§ 186.22, subd. (b)(1)) and on the allegations that the attempted murders were willful, deliberate, and premeditated (§ 664, subd. (a)). It sentenced defendant to a total term of 25 years on the remaining convictions and jury findings.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant raises instructional error regarding "express malice aforethought," a due process challenge to the states failure to preserve evidence of the level of his alcohol intoxication at the time of the crimes, and a number of ineffective assistance of counsel claims. We affirm.
Defendant has also filed a petition for writ of habeas corpus, which we ordered considered with this appeal (H030522). We resolve the petition by a separate order.
A. Trial Evidence
The drive-by shootings at issue in this case factually relate to an earlier fatal shooting. On March 20, 2004, at about 11:00 p.m., Albert Johnson was shot and killed in the parking lot of Kragen Auto Parts in Seaside. There was no evidence of gang motive or gang involvement in Johnsons murder but there was evidence that Johnson had been a member of the "Krazy Ass Pimps" (KAP) gang. The suspected assailant left on foot and remained at large at the time of trial in this case. DeShawn Lee had driven the suspect to Kragen and apparently had used his mothers car. Lee had been arrested not far from the scene of the shooting after a short pursuit.
DeShawn Lee was never actually charged with the murder of Albert Johnson.
The drive-by shootings at issue in this case occurred on the night of March 26, 2004 and the car was driven by Travis Williams. The funeral of Albert Johnson had taken place earlier in the day.
A number of people at the funeral wore T-shirts in Johnsons honor specially made by female friends. The front of the T-shirts had a picture of Albert Johnson, his nickname "Drew" above his head, said "In Loving Memory of Albert Johnson," and had the dates of his birth and death. The back of the T-shirts had a group photograph of five men, not including defendant, and said "Krazy Ass Pimps" at the top. It was intended that the back of each T-shirt would be individualized with a mourners name but they were rushed for time and some people did not get their name on the T-shirts. In addition, some peoples T-shirts did not have the group picture on the back because they ran out of transfers. All the pallbearers wore these T-shirts.
Defendant had come up from the San Diego area, where he was then living, to pay his last respects. On March 25, he had attended Johnsons wake. That day, defendant received one of the shirts with his name printed on it. His shirt was signed by various individuals. "K.A.P." was written four or five times on the back and several times on the front. Somebody had written "40831" on it and Sergeant Sargent testified that the number indicated area codes 408 and 831 and referred to the geographic area of the Monterey Peninsula. Defendant, whose name was not on the funeral announcements list of pallbearers, wore the shirt underneath a suit at Johnsons funeral.
Defendant stated that he did not know Travis Williams before the funeral. Following the afternoon funeral on March 26, 2004, defendant attended a reception that ended at approximately sundown and later ended up at someones apartment. There was ample evidence that he had been drinking heavily throughout his visit to the area. He remembered throwing up by the apartments "dumpster downstairs." Defendant decided to leave the apartment and started walking toward his grandmothers house located approximately half a mile away. Travis Williams pulled up beside defendant and offered him a ride. Defendant testified that Williams drove to Fort Ord, where they smoked marijuana. According to defendant, at some point he finished off the liter bottle of brandy that he taken with him when he had left on foot.
Later that night on March 26, Kimber Lee-Roman, Latoya Choates, and Adrienne Jenkins went outside on the dark front porch of a Seaside residence on Sonoma Street to smoke. Kimber Lee-Roman was DeShawn Lees mother, Latoya Choates was Lees cousin, and Adrienne Jenkins was then Lees girlfriend. Lee-Roman and Choates lived at the Sonoma Street residence. Jenkins had been staying with them for some time. This was also where DeShawn Lee lived but he was in the Monterey County jail that night.
The evidence showed that Travis Williams was the driver and defendant was the passenger in the car involved in the drive-by shootings but the evidence was in conflict regarding whether defendant or Williams was the shooter. Eugenio Ramos, who lived in the victims neighborhood, happened to be outside on his street fixing a flat tire on the night of March 26th. He noticed a dark car come out of an alley and drive around but continued fixing his tire. From where he was on San Lucas Street, Ramos had a view up Sonoma Street. At some point, he saw the car go up Sonoma Street. When he heard tires squeal, someone yelling, and a gunshot fired, Ramos looked up and saw the same car speeding down Sonoma Street toward him on the wrong side of the street. Ramos saw the passenger, who was sitting on the frame of an open window with his hands on the top of the car, shooting a gun over the top of the vehicle. The car continued past him on Sonoma Street and Ramos saw the passenger still in the same position. Ramos called 911.
Lee-Roman noticed a small car pass her house two or three times. It then made a U-turn, causing the tires to screech and came back down the street; it stopped just before reaching her home. She "heard someone yell out, its on, and then shots were fired." She remembered a hand coming out on the drivers side of car but she did not see a gun. She believed the shots had come from the drivers side of the vehicle because she saw the hand come out on that side. Lee-Roman could not describe the people in the car. They ducked and ran into the house. They called 911.
Adrienne Jenkins noticed a small dark car that passed Lee-Romans house slowly, made a U-turn, came back down Sonoma Street, and then stopped before reaching Lee-Romans house. She heard, " its going down, nigger, " saw the car moving and an arm coming out on the drivers side, and heard a gun shot seconds later. Jenkins got down and ran inside the house. She never saw a gun but she heard three or four shots. When the car left, she heard screeching for the first time.
Latoya Choates saw a car drive by going up the hill and then saw it drive back down the hill. She heard a voice saying, "Its going down, mother fucker." Seconds later, she heard shots fired. She did not identify the shooter or source of the gunfire.
Around 11:00 p.m. on March 26, Jacqueline Maroney, who was a police officer with the City of Seaside and who was parked in the vicinity and doing reports, heard shots fired. She began driving and soon learned there had been a drive-by shooting on Sonoma Street and heard a description of the vehicle and its last location. She observed a similar vehicle and followed the car, which ran stop signs. She eventually activated her lights and siren, which also turned on the vehicles videotape camera. The suspect vehicle ultimately crashed, causing the passenger side door to be jammed against a log. Officer Maroney observed the passenger crawl out of the window and run and the driver get out and run. At trial, she identified defendant as the passenger, who had been apprehended about a block away from the crash. The officer named Travis Williams as the driver.
One of the arresting officers described defendant as "extremely upset and argumentative." The officer indicated that defendant appeared intoxicated but not to "the point where he couldnt stand up straight by himself or know where he was at or communicate verbally."
No gunshot residue was found on either Williams or defendant Porter. The live rounds of ammunition recovered from the gun were similar to the live rounds removed from Williamss pocket. A handgun was found in the area where another pursuing officer had observed the suspect vehicle slow and the passengers hand come out of the car and make a throwing motion. The guns location was consistent with it having been thrown out by the passenger and defendant admitted throwing the gun out of the car. Police retrieved defendants funeral T-shirt with vomit on it from the trunk of the car. An empty one-liter bottle of brandy was also collected from the vehicle.
Detective Judy Stradan with the Seaside Police Department interviewed defendant about 2:10 a.m. the morning after the shooting. She smelled alcohol but she did not notice any slurring of his speech or lack of coordination and he did not appear drunk. She stated that it was not standard procedure to administer a breath test. The interview was videotaped. The detective confirmed that palm prints were found on the top of the car over the passenger window but they could not be identified as belonging to defendant.
A telephone call from Travis Williams and defendant Porter from jail to the registered owner of the drive-by vehicle, recorded on March 30, was played for the jury. During the conversation, they discussed the fact that "D Bo," the nickname for DeShawn Lee, was in protective custody in the jail. Defendant indicated that Lee was in jail because he was the driver and stated, in reference to Lee: "I dont give a fuck how deep they were. Ill get in there for at least five minutes, take his dome off, you know what Im saying? Detective Judy Stradan interpreted defendants statements as referring to Lees role as the driver in the Johnson shooting and as indicating that defendant wanted to take Lees head off no matter how many people were housed in the same area as Lee.
B. Attempted Murder and Malice Aforethought Instruction
Porter argues that the ambiguous jury instructions failed to make clear that the definition of "malice" applicable to the crime charged in count seven, shooting from a motor vehicle (§ 12034, subd. (c)), did not apply to the crime of attempted murder (§§ 187, subd. (a), 664) charged in counts one and two. He maintains that the instructions thereby unconstitutionally lessened the prosecutions burden of proof on the attempted murder counts. Defendant further argues that his trial counsels failure to object to those instructions constituted ineffective assistance of counsel. We reject these contentions.
The court gave instructions regarding the elements of attempted murder charged in counts one and two. It defined murder as "the unlawful killing of a human being with malice aforethought" and told the jury that, in order to prove attempted murder, the People must prove that defendant "harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being." In regard to count seven, the court instructed that it must be proved, inter alia, that "[t]he discharge of the firearm was willful and malicious." The court defined "malice" and "maliciously" as "a wish to vex, annoy or injure another person or an intent to do a wrongful act."
"When reviewing ambiguous instructions, we inquire whether the jury was reasonably likely to have construed them in a manner that violates the defendants rights. (Cf. Estelle v. McGuire (1991) 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385.)" (People v. Rogers (2006) 39 Cal.4th 826, 873; see People v. Young (2005) 34 Cal.4th 1149, 1202.) There is no reasonable likelihood in the present case that the jury misunderstood the meaning of "express malice aforethought."
First, the court clearly defined "express malice aforethought" and there is no reason to believe the jury disregarded that instruction. Second, the court elsewhere in its instructions clearly differentiated between general intent crimes, including shooting from a motor vehicle, and specific intent crimes, including attempted murder, and explained that voluntary intoxication was no defense to general intent crimes but the jury "should consider the defendants voluntary intoxication in deciding whether the defendant possessed the specific intent or mental state at the time of the commission of the alleged crime" in regard to the specific intent crimes and gang enhancement allegations. Thus, the jury was informed that the charges of shooting from a motor vehicle and attempted murder were different types of crimes, which makes it even more likely that the jury fully understood that the definition of "malice" in regard to shooting from a motor vehicle was unrelated to the "express malice aforethought" element of attempted murder.
"We presume that jurors comprehend and accept the courts directions. [Citation.] We can, of course, do nothing else. The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions." (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.) There is no reasonable likelihood that the jurors construed the instructions as allowing them to "apply the vex-or-annoy standard to the attempted murder counts."
Furthermore, the failure to object to the instructions now challenged did not constitute ineffective assistance. For the same reasons stated above, it is not reasonably probable that that the result of the proceeding would have been different but for counsels failure to object. (Strickland v. Washington (1984) 466 U.S. 668, 694 .)
C. Failure to Preserve Evidence of Extent of Intoxication
Defendant argues that the police failure to preserve evidence of his intoxication at or near the time of the shootings violates his constitutional right to due process. He complains that officers should have tested his "alcohol level at the time of arrest or soon after at the police station." Defendant further argues that his trial counsels failure to timely raise these due process objections in the court below constituted ineffective assistance of counsel. " "Law enforcement agencies have a duty, under the due process clause of the Fourteenth Amendment, to preserve evidence that might be expected to play a significant role in the suspects defense. (California v. Trombetta (1984) 467 U.S. 479, 488 [104 S.Ct. 2528, 2535, 81 L.Ed.2d 413]; accord, People v. Beeler (1995) 9 Cal.4th 953, 976 . . . .) To fall within the scope of this duty, the evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. [Citations.] The states responsibility is further limited when the defendants challenge is to the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant. (Arizona v. Youngblood (1988) 488 U.S. 51, 57 [109 S.Ct. 333, 337, 102 L.Ed.2d 281].) In such case, unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law. (Id. at p. 58 ; accord, People v. Beeler, supra, 9 Cal.4th at p. 976.)" [Citation.] (People v. Catlin, supra, 26 Cal.4th at pp. 159-160.)" (People v. Farnam (2002) 28 Cal.4th 107, 166.) "[R]equiring a defendant to show bad faith on the part of the police both limits the extent of the polices obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant." (Arizona v. Youngblood (1988) 488 U.S. 51, 58; see Illinois v. Fisher (2004) 540 U.S. 544, 549 (per curiam) ["the applicability of the bad-faith requirement in Youngblood depended not on the centrality of the contested evidence to the prosecutions case or the defendants defense, but on the distinction between material exculpatory evidence and potentially useful evidence"].)
The California Supreme Court has distinguished collection of evidence from preservation of evidence and it has "continued to recognize that, as a general matter, due process does not require the police to collect particular items of evidence. (See People v. Daniels (1991) 52 Cal.3d 815, 855 . . . ; People v. Farmer (1989) 47 Cal.3d 888, 911, . . . ; People v. Hogan (1982) 31 Cal.3d 815, 851 . . . [duty to preserve material evidence already obtained does not include duty to obtain evidence or to conduct certain tests on it].)" (People v. Frye (1998) 18 Cal.4th 894, 943.) In this case, there was no substance seized from defendant, not even the "potentially useful evidence" described in Arizona v. Youngblood, supra, 488 U.S. at page 58.
Moreover, defendant has not shown that the police acted in bad faith in not obtaining and preserving evidence of his intoxication level at the time he was arrested or soon thereafter. An inference of bad faith cannot be drawn from the mere failure to test or from speculating in hindsight on the potential exculpatory value of such tests. "The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the polices knowledge of the exculpatory value of the evidence at the time it was lost or destroyed. Cf. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959)." (Arizona v. Youngblood, supra, 488 U.S. at p. 56, fn. *.)
The record does not establish that any officer believed that defendant was severely intoxicated and realized the possible exculpatory value of testing his alcohol level. Therefore, there is no basis for concluding the police acted in bad faith. Defendants due process claim is plainly without merit based upon the record before us. Accordingly, defendants ineffective assistance claim fails as well since there has been no showing of deficient performance on the part of his trial counsel. (See Strickland v. Washington, supra, 466 U.S. at pp. 687-689, 694.)
D. Ineffective Assistance of Counsel in Failing to Present Evidence at Trial
Defendant argues that his trial counsel rendered ineffective assistance of counsel by failing to present relevant evidence concerning the fact that he suffered from a physical weakness on his left side making it impossible for him to have done the shooting as described by witness Ramos. He also asserts that his counsel should have presented evidence that he suffered from alcohol blackouts that might have affected his behavior and appearance during Detective Stradans interview, which was videotaped. He claims that evidence would have given the jury "a basis for concluding that even if [he] appeared relatively sober on the interview tape, he was, in fact, highly intoxicated."
To demonstrate ineffective assistance of counsel, a defendant must show that counsels action was both deficient under prevailing professional norms and prejudicial. (Strickland v. Washington, supra, 466 U.S. at p. 687 [104 S.Ct. at p. 2064.) " Reviewing courts defer to counsels reasonable tactical decisions in examining a claim of ineffective assistance of counsel (see People v. Wright (1990) 52 Cal.3d 367, 412), and there is a "strong presumption that counsels conduct falls within the wide range of reasonable professional assistance." (People v. Lucas (1995) 12 Cal.4th 415, 436-437 . . . , quoting Strickland v. Washington, supra, 466 U.S. at p. 689 .)" (People v. Weaver (2001) 26 Cal.4th 876, 925.) Ordinarily, the selection of defense witnesses is a matter of trial tactics. (See People v. Bolin (1998) 18 Cal.4th 297, 334 [failure to call defense experts at trial]; see also People v. Catlin (2001) 26 Cal.4th 81, 176 [failure to present evidence at penalty phase]) A reviewing court generally may not second-guess a decision "whether to put on witnesses." (People v. Mitcham (1992) 1 Cal.4th 1027, 1059.)
"[W]here counsels trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsels acts or omissions. [Citations.]" (People v. Weaver, supra, 26 Cal.4th at p. 926.) "[U]nless the record reflects the reason for counsels actions or omissions, or precludes the possibility of a satisfactory explanation, we must reject a claim of ineffective assistance raised on appeal. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 . . . .)" (People v. Ledesma (2006) 39 Cal.4th 641, 746.)
In regard to his purported left side weakness, defendant points us to defense counsels trial brief in which his counsel anticipated calling Dr. Tom Reidy to testify to, among other things, "evidence of stroke or other trauma which has permanently affected [defendants] brain, a physical manifestation of which is weakness in his left side . . . ." In addition, he refers us to his counsels memo to file, dated October 27, 2004, which was submitted as an exhibit to defendants sentencing memorandum. In the file memo, trial counsel noted that Anne Flood, a mental health expert who had treated defendant and whom counsel had interviewed, thought that a report by someone named Huntley supported the inference that defendant had suffered a stroke affecting his left side. Counsel noted that Flood had noticed, when visiting defendant in jail, that he often rested his left arm on his chest or abdomen and dragged his left foot.
The record does not establish that the anticipated evidence of a left side weakness based on brain injury or trauma panned out. In this case, there was an Evidence Code section 402 examination of Dr. Reidy. The prosecuting attorney argued that Dr. Reidy should not be allowed to testify regarding brain damage and defendants counsel conceded that "Dr. Reidy didnt discover any evidence to support a conclusion of brain damage, so it would not be appropriate to raise it." Accordingly, the record does not establish that Dr. Reidy would have been able to testify as counsel had originally hoped. Counsel may have made the decision that without evidence of a brain injury, Dr. Floods observations were of limited probative value. The record does not demonstrate that defense counsel lacked legitimate tactical reasons for not calling Drs. Reidy or Flood to testify on behalf of defendant in regard to a left side weakness. Defendant has not affirmatively shown based on the record that his counsels performance was deficient. (See Strickland v. Washington, supra, 466 U.S. at pp. 687-690.)
In regard to evidence of alcohol related blackouts, defendant points to the remarks regarding blackouts made by Dr. Reidy during the Evidence Code section 402 hearing. Defendant also refers us to a letter to trial counsel from Dr. Reidy, dated April 12, 2005, and Ann Floods letter to the trial judge, which were submitted as exhibits to defendants sentencing memorandum. In his letter, Dr. Reidy states: "By virtue of heavy alcohol abuse and dependence an experienced drinker can look and sound relatively sober, compared to an inexperienced drinker due to the effects of increased tolerance for alcohol. . . . [¶] . . . Alcohol intoxication affects memory storage, in particular, the issue of what is referred to as blackouts or gray outs. Although individuals may seemingly be functional while drinking heavily, often these individuals cannot later recall some or all of the events occurring during the period of intoxication." In her letter, Flood stated that defendant "is an alcoholic and has been admitted to the hospital because of blackouts."
At the Evidence Code section 402 hearing, the prosecuting attorney argued, following Dr. Reidys testimony regarding blackouts and drinking, that blackouts were "totally irrelevant as to whether Anthony Porter formed a specific intent to kill on that night." Defense counsel stated that he was "kind of halfway in agreement with the district attorney" on the issue of blackouts and indicated that he would not raise that issue without first discussing it again with the court.
At trial, defense counsel did call a forensic toxicologist who testified at length. She described the effects of alcohol consumption and estimated defendants blood alcohol level based upon the information she had received and certain assumptions. She also discussed the fact that heavy drinkers who have developed an alcohol tolerance may not appear as outwardly impaired.
The record on appeal does not affirmatively disclose that defense counsel had no rational tactical purpose for not calling Drs. Reidy and Flood. He did call an alternative expert, whom counsel may have decided was a stronger witness. The record does not establish that defendant was actually "under the influence of alcohol to the degree that he was suffering a blackout" as speculated in the appellants opening brief and it does not show that evidence of past blackouts would have been relevant (see Evid. Code, §§ 210, 350). Defendant has not overcome the "strong presumption that counsels conduct falls within the wide range of reasonable professional assistance" (Strickland v. Washington , supra, 466 U.S. at p. 689) and shown deficient performance under the first prong of Strickland (id. at p. 687).
Moreover, there was ample evidence at trial that defendant drank steadily over a period of days before the shooting. Defendant also testified as to his recollection of the shootings and the events leading up to that night that showed him to be active and alert at the time of the shootings. There is no reasonable probability that the outcome of the trial would have been more favorable had defense counsel also presented evidence that defendant had previously suffered from alcohol blackouts. (Strickland, supra, 466 U.S. at p. 694.) Thus, defendant has not shown prejudice under the second prong of Strickland. (Id. at pp. 687, 694-696.)
The judgment is affirmed.
We Concur:
RUSHING, P. J.
PREMO, J.