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People v. Self

Court of Appeals of California, Fourth Appellate District, Division Two.
Nov 24, 2003
No. E031553 (Cal. Ct. App. Nov. 24, 2003)

Opinion

E031553.

11-24-2003

THE PEOPLE, Plaintiff and Respondent, v. KENNETH WAYNE SELF, Defendant and Appellant. In re KENNETH WAYNE SELF, on Habeas Corpus.

Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry J.T. Carlton, Supervising Deputy Attorney General, Daniel Rogers, Deputy Attorney General, for Plaintiff and Respondent.


OPINION

Kenneth Wayne Self, defendant and appellant (hereafter, defendant) appeals from the judgment entered after a jury found him guilty as charged of the first degree murders of Vernon Scott Lovely (referred to at trial and hereafter as Scott Lovely) and Joan Lovely. Based on the jurys true findings on special circumstance allegations that defendant committed both crimes for financial gain, the trial court sentenced defendant to life in prison without the possibility of parole.

Because the jury also found true special allegations that in committing the murders defendant intentionally and personally used a firearm within the meaning of Penal Code section 12022.53, subdivision (d), the trial court also sentenced defendant to serve two consecutive terms of 25 years to life in state prison.

Defendant raises three claims of error in this appeal. First, he contends the trial court committed reversible error by admitting into evidence Scott Lovelys calendar and computer records. Defendant objected to the admissibility of that evidence on the ground that it was hearsay and not relevant to any issue at trial. Defendant next challenges the sufficiency of the evidence to prove murder. Defendants third claim of error is that it was an abuse of discretion for the trial court to deny defendants request to continue his sentencing hearing in order for defendant to retain new counsel to pursue a motion for new trial.

While we agree, for reasons we explain below, with defendants first claim, we nevertheless conclude that the trial courts error was harmless. Defendants remaining claims are meritless and therefore we will affirm the judgment.

In a separate petition for writ of habeas corpus, which defendant filed pro se and we ordered consolidated with this appeal for the purpose of deciding whether an order to show cause should issue, defendant alleges that his trial counsel was ineffective. We conclude, for reasons we also explain below, that defendant has not established a prima facie basis for relief. Therefore we will deny the habeas corpus petition.

FACTS

The pertinent facts are undisputed. Scott and Joan Lovely were murdered in their Moreno Valley home in early October 1999. In the early evening of October 3, 1999, a neighbor became concerned after noticing that the Lovelys had not picked up their newspapers for two days. The neighbor walked around to the back of the Lovelys house, looked through a window, and spotted the Lovelys bodies on the dining room floor. The neighbor called law enforcement and Detective Jess Gutierrez of the Riverside County Sheriffs Department arrived around 7:00 p.m. Detective Gutierrez inspected the outside of the Lovelys house, including the roof, and found no signs of forced entry. There were no signs inside the house that a struggle had occurred. The house had not been ransacked nor were there any obvious signs that anything had been taken. The detective recovered numerous nine-millimeter shell casings from the dining room and several bullets from the living room and dining room.

The evidence is recounted in detail in the parties respective briefs. We recount only those facts that are pertinent to our resolution of the issues defendant raises on appeal.

According to the coroners report, Scott and Joan Lovely each died as the result of multiple gun shot wounds. Scott Lovely had been shot once in the back of the head, once in the left side of the nose and once in the chest. Joan Lovely had been shot once in the top of the head and once in the chest. The time of death, based on the evidence of rigor mortis at the time the bodies were discovered, could have been as little as one day or as much as three days earlier.

Ballistics tests disclosed that the gun used to kill the Lovelys was a specific model Sig Sauer pistol. Defendants brother-in-law owned such a pistol but he could not find it when he looked for it some time after the Lovelys had been murdered. The same model Sig Sauer pistol also had been used a few days earlier to shoot out the tires on defendants Jeep Grand Cherokee by an unknown assailant whom defendant claimed had carjacked and kidnapped him.

Riverside Police Detective Gary Thompson interviewed defendant on Monday, October 4, 1999, the day after the Lovelys bodies had been discovered. Several days earlier, on Wednesday September 29, 1999, defendant had reported that he had been carjacked and forced by his abductor to drive to an area on Gilman Springs Road near Hemet. There, the abductor shot out two of the tires on defendants car, after ransacking the vehicles interior and taking several company checks, but overlooking defendants ring, wallet, and about $1600 in cash. When a person drove up on a dirt bike defendants abductor jumped on the back and rode off.

In requesting the interview with defendant, Detective Thompson said that he wanted to discuss the carjacking. In fact, the police got defendants name from Scott Lovelys calendar, which the police had found during their investigation of the crime scene. Defendants name had appeared in numerous entries on the calendar, along with notations regarding money defendant owed Lovely. From the calendar, on which Lovely made extensive notes and apparently maintained like a journal, the police learned, among other things, that defendant had been scheduled to deliver a check for about $470,000 to Lovely on September 29 but, for various reasons, defendant had failed to do so.

Detective Thompson began his interview with defendant by talking about the carjacking. After defendant again described what had happened, Detective Thompson asked defendant about Scott Lovely. Defendant explained his connection with Lovely, who was a former business partner of defendants father, and acknowledged that he had spoken with Lovely on the telephone on September 29 and October 3. When asked about financial dealings between the two, defendant said that he and Scott Lovely had loaned each other money. Defendant claimed to have done nearly $100,000 in work for Lovely during 1999 and that Lovely owed him about $ 40,000. Lovely, in turn, had loaned defendant between $15,000 and $20,000 of which defendant owed $468.

Detective Thompson then disclosed to defendant that the Lovelys had been murdered. According to Thompson, defendant appeared to be shocked. When Detective Thompson confronted defendant with a deed of trust and various entries found in Scott Lovelys calendar, defendant acknowledged that he had repaid about $ 45,000 that he had borrowed from Scott Lovely in 1999. Defendant stated, "Well, I, I, I owe him four hundred, sixty-eight thou —, four hundred and sixty dollars[.]" After defendant was advised of and waived his Miranda rights, Detective Thompson showed defendant the September 29 entry in Scott Lovelys calendar that indicated that defendant was to deliver a check to Lovely that day for $470,000 and that when defendant arrived at Lovelys house, he did not have the check because he had grabbed the wrong folder. According to the calendar entry, defendant was going to go back to his office and pick up the check. Defendant denied having been to the Lovelys home on September 29 and stated that he had had a check for $468 for Scott Lovely but that the carjacker had taken it from defendants brief case. When asked if he had been to the Lovelys house on September 29 as Scott Lovely had noted on his calendar, defendant said no. Defendant also denied owing $468,000 to Scott Lovely and again asserted that he had made out a check to Lovely that day for $468.

In his defense defendant offered an alibi. The prosecutors theory was that defendant killed the Lovelys in the early evening on October 1, 1999. Defendant offered evidence to account for his whereabouts during the pertinent time including the testimony of his wife and two brothers-in-law both of whom stated they spoke with defendant on the phone at his house between 5:00 p.m. and 6:00 p.m. on the night in question. Defendant also showed that a deposit had been made to his bank account at about 5:00 p.m. on October 1 and defendant argued that he had made the deposit. Additional facts will be discussed, below, as pertinent to the issues defendant raises on appeal.

DISCUSSION

We first address defendants claim that the trial court committed reversible error by admitting into evidence Scott Lovelys calendar and computer records.

1.

ADMISSIBILITY OF VICTIMS CALENDAR AND COMPUTER RECORDS

In an in limine motion, the prosecutor sought a ruling on the admissibility of Scott Lovelys calendar/day planner and two files that had been recovered from Lovelys computer that documented his contributions in and expected profits from real estate investments with defendant. Lovelys files identified the investments by escrow number and included information on "escrow # 1" through "escrow # 21". The first file was created in April 1999 and was last modified on October 1, 1999, at 2:08 p.m. As modified, the file shows that escrows 1 through 16 had closed and that the total profit received on those escrows was $345,500. Escrows 17 through 21 had anticipated close dates of either September 15 or October 15, with expected total returns of $502,000. The second file contained a single document created on August 4, 1999, entitled "Ken S. / Scott L. Commercial Properties" and set out more detailed information on escrows 2 through 6.

The evidence in question was identified and admitted into evidence at trial as exhibits 23, 23A, 33, and 36.

The evidence is set out in detail in defendants opening brief.

In his calendar/day planner, Lovely had made entries describing the status of his various real estate investments with defendant. For example, in an entry for the date April 16, 1999, Lovely wrote, "Ken S. called. 15,000 escrow to close, contract signed, open escrow. Look at another property next week." An entry on April 22 reads, "Ken Self. Number 1 — close tomorrow. No. 2 — on track. No. 3 — meeting to finalize on Friday." On September 29, 1999, Lovely made the following entries:

Lovelys son identified the writing as that of his father.

"10:00 a.m., Ken said he was going to bank, pick up my cashiers check for [$]470,000, (not exact amount).

"10:30, Ken called; said he had my check, was on his way to my home.

"11:00, Ken arrived, looked in his briefcase. Said he picked up the wrong folder and would go back to office and drive immediately back to my house. Did not hear from Ken. Could not reach him by phone. I left messages on his three phones. At 2:00 I decided to drive by his home and did. Then I called Joan. She had Ken on the other line. Ken said he was kidnapped by a Mexican while getting on freeway at University Avenue. Kidnapper had gun, jumped into Kens car while stopped because of traffic backup. Drove Ken for next four hours to Rialto, et cetera. Ended up in Badlands off Alessandro.

"[¶] . . . [¶]

"After driving to Badlands, I drove to Moreno Valley police station. They confirmed that Ken was with police at Gilman Springs golf course. I drove to Badlands, did not see any police activity. Drove home by Gilman Springs Road. Ken was on phone when I got home. Ken was at Gilman Springs golf course with police. He told me story and said we would get together Thursday a.m. [¶] . . . [¶] Kidnapper shot out tires, took Kens briefcase (Ken said my check was in briefcase.)"

Defendant objected to the noted evidence on the ground that it was hearsay and not relevant to any issue at trial. The prosecutor argued that the evidence was relevant to prove defendants motive for killing the Lovelys, namely that defendant had created a fraudulent real property investment scheme pursuant to which he had obtained money from Scott Lovely that defendant was unable to repay. Although hearsay, the prosecutor argued that the evidence in question was admissible under Evidence Code section 1250, the so-called state of mind hearsay exception and also under Evidence Code section 1271, the business records exception for hearsay statements. The trial court found that the calendar/day planner entries were admissible both under section 1250 and for the nonhearsay purpose of showing Scott Lovelys state of mind at or about the time that those entries were made. The trial court found the computer files were admissible for their nonhearsay purpose of showing Scott Lovelys state of mind.

All further statutory references are to the Evidence Code unless indicated otherwise.

Defendant contends, as he did in the trial court, that Scott Lovelys state of mind was not relevant to any issue at trial and, therefore, the trial court erred in admitting the evidence in question. We agree.

Under section 1250, subdivision (a), "a statement of the declarants then existing state of mind" is admissible when "offered to prove the declarants state of mind . . . at that time or at any other time when it is itself an issue in the action." (§ 1250, subd. (a)(1).) To be admissible either as circumstantial evidence of Scott Lovelys state of mind or under the hearsay exception, Lovelys state of mind must have been an issue in the case. The trial court in ruling that the evidence in question was admissible, held that it was relevant to show Scott Lovelys state of mind, "namely, that he believed that there were investments that he had which were going to result in a particular return at or about . . . particular dates . . . ." What the trial court did not explain is how the murder victims belief that the defendant owed him money was relevant to any issue at trial. We do not see the relevance of that belief except to show defendants motive to kill Scott Lovely. For that purpose, however, the evidence is hearsay and thus inadmissible. (People v. Noguera (1992) 4 Cal.4th 599, 622 ["hearsay statements of victims concerning fears of or threats against them by the accused, when offered to prove the conduct of the accused, are not within the exception to the hearsay rule embodied in Evidence Code section 1250."])

The Attorney General asserted at oral argument that the calendar/day planner entries showing Scott Lovelys intent to do a future act, namely his intent to meet with defendant on September 29, were admissible under Evidence Code section 1250, subdivision (a). We agree that to the extent any of the entries actually reflected such intent, those entries were admissible under the noted code section.

The Attorney General also argues the evidence was relevant to show that Scott Lovely had an ongoing investment relationship with defendant in which Lovely invested $179,000 and expected a return of about $470,000. In addition, the Attorney General argues the evidence explains why Scott Lovely wrote checks to defendant for a total of $179,000 and why Lovely contacted defendant on September 29. Although we agree that the evidence tends to prove the noted facts, we do not see, nor does the Attorney General explain, how those facts are relevant to any issue at trial other than the inadmissible purpose of establishing defendants motive to murder the Lovelys. The relevant fact in our view is that Scott Lovely wrote checks to defendant for a total of $179,000 and that defendant personally endorsed and negotiated those checks. Those facts were established by evidence other than Scott Lovelys diary, namely the cancelled checks themselves and the testimony of defendants wife that the signature endorsing each of the checks for deposit was that of defendant, her husband.

In People v. Melton (1988) 44 Cal.3d 713, the Supreme Court held that a murder victims calendar notations that included the defendants name and physical description were admissible under section 1250 to show the victims state of mind, that is, that the victim knew the defendant and the defendants friend and had expected a visit from the defendant on the day the victim died. (Id. at p. 740.) Scott Lovelys calendar/day planner would be admissible in evidence under Melton for the limited purpose of showing that Lovely knew defendant and that Lovely had expected a visit from defendant on the dates indicated including September 29, 1999. According to the Supreme Court, other details or jottings in Lovelys calendar that "did not directly declare a mental or emotional state [were not] hearsay but simply circumstantial evidence of state of mind. [Citation.]" (Ibid., fn. 9.) As previously discussed, because Scott Lovelys state of mind was not in issue, those "jottings" were not relevant and therefore were inadmissible.

Although we are of the view that the evidence in question was not relevant to any issue at trial, we will not address the issue in more detail because any error in admitting the evidence was not prejudicial in this case. Arguably, the error in admitting the noted evidence infringed on defendants Sixth Amendment right to confront and cross-examine witnesses and therefore implicates rights guaranteed under the federal Constitution. For that reason we will assess prejudice under the standard pertinent to error of federal Constitutional magnitude and will determine whether the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d. 1065)

The evidence that defendant was the person who murdered Scott and Joan Lovely, although entirely circumstantial, nevertheless is substantial. That evidence includes testimony from defendants mother-in-law and brothers-in-law that they each had invested money with defendant for the ostensible purpose of purchasing commercial real property for quick resale. Although defendants in-laws made large profits, at least doubling their investments, the evidence showed that the building defendant claimed to have purchased and resold not only had not been purchased but also had not even been on the market for sale. The evidence also showed that defendant received and deposited checks from Scott Lovely totaling $179,000. Defendants own computer contained fragments of documents, including promissory notes to Scott Lovely for large sums of money and references to escrows on the sale of properties that either did not exist, i.e., the address was nonexistent, or that had not been offered for sale. The most damning evidence in our view is the ballistics test results. According to that evidence, the bullets that killed Scott and Joan Lovely were fired from the same gun used to shoot out the tires on defendants car during the purported carjacking. That gun is a SIG Sauer P-226 nine-millimeter pistol with a serial number below 480000. Defendants brother-in-law owned such a gun, which he looked for but could not find after the Lovelys were murdered.

In view of the noted evidence, we have no reasonable doubt that the error in admitting Scott Lovelys calendar/day planner and computer files into evidence did not contribute to the verdict in this case.

2.

SUFFICIENCY OF THE EVIDENCE

Defendant contends the evidence was insufficient to support the verdicts finding him guilty of the murders of Scott and Joan Lovely. Specifically, defendant contends the circumstantial evidence in this case was reasonably susceptible of two interpretations and therefore as instructed in CALJIC No. 2.01, the jury was required to accept the inference pointing to innocence and acquit defendant.

CALJIC No. 2.01, instructs the jury on the sufficiency of circumstantial evidence to prove guilt and provides in pertinent part that "if the circumstantial evidence [as to any particular count] permits two reasonable interpretations, one of which points to the defendants guilt and the other to [his] [her] innocence, you must adopt that interpretation that points to the defendants innocence, and reject that interpretation that points to [his] [her] guilt. (CALJIC No. 2.01 (7th ed. 2003).)

There are two significant defects in defendants argument. First, defendants claim is predicated on the view that the circumstantial evidence in this case supported a reasonable interpretation pointing to defendants innocence. It did not. In order for the jury to find defendant innocent of the charged crimes the jurors would have had to find a reasonable explanation for how the gun the purported carjacker used to shoot out the tires on defendants car could have been used two days later to murder the Lovelys. That explanation would have to include additional explanations for why there were no signs of forced entry into the Lovelys home, no signs of any altercation, and no sign that anything had been taken from the residence. The possibility that an unknown assailant carjacked defendant, stole his brief case, shot out the tires of his car, and then two days later shot and killed the Lovelys for no apparent reason is not based on a reasonable interpretation of the evidence. In short, and contrary to defendants view, the evidence in this case was not subject to a reasonable interpretation that supported defendants innocence.

But even if we were to conclude otherwise, defendant acknowledges the controlling legal principle: "`In considering a claim of insufficiency of evidence, a reviewing court must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citations.] [Citation.] `The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] [Citation.] `Although it is the jurys duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendants guilt beyond a reasonable doubt. [Citation.] Simply put, if the circumstances reasonably justify the jurys findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citations.]" (People v. Farnam (2002) 28 Cal.4th 107, 142-143, emphasis added.)

Defendant argues that the emphasized language cannot be interpreted to mean that an appellate court is powerless to correct a jurys violation of the duty to acquit when the circumstantial evidence points equally to innocence. Such an interpretation, defendant claims, "would contradict the very idea of appellate review." We construe the quoted language to mean precisely what it says: The jury must draw the pertinent inferences and if those inferences are supported by the evidence, an appellate court is powerless to draw contrary ones even if those contrary inferences also are supported by the evidence. Therefore, even if the evidence in this case were reasonably susceptible to an interpretation pointing to defendants innocence, we would be powerless to substitute our interpretation for that of the jury and thereby find defendant not guilty.

For these reasons we must reject defendants challenge to the sufficiency of the evidence.

3.

REQUEST TO CONTINUE SENTENCING

Defendants final claim on appeal is that the trial court abused its discretion in denying his motion to continue defendants sentencing hearing in order for defendant to hire a new attorney to investigate grounds for a new trial motion. We disagree.

We note at the outset that in articulating his claim defendant mischaracterizes the issue. According to defendant, the issue is whether the trial court abused its discretion in denying his request for a continuance of a motion for new trial. Defendant had not made a motion for new trial. The hearing in question was defendants sentencing hearing and according to the reporters transcript, defendant requested a continuance of that hearing in order to retain new counsel to investigate the possibility of filing a new trial motion. In the course of requesting the continuance, defendant represented to the court that he and his family had been in contact with several attorneys and defendant identified a particular local attorney whom defendant was attempting to retain. Defendant also indicated that he was attempting to obtain phone records from the pertinent phone companies that would corroborate the testimony of defendants brothers-in-law that they called defendants home and spoke with defendant at around the time the prosecutor identified as the time the murders must have been committed. The trial court denied defendants continuance request after first noting that defendant did not actually have an attorney with him in court who was prepared to take over defendants case.

We will not address any issues regarding a motion for new trial because defendant did not made such a motion. The only issue presented to the trial court and thus the only issue we must resolve is whether the trial court abused its discretion in denying defendants request to continue the sentencing hearing in order to retain counsel to investigate a new trial motion. The answer to that question is no.

Penal Code section 1050 governs continuances and subdivision (e) of that section requires a showing of good cause as the basis for a continuance request. "[A] trial court has broad discretion to grant or deny the request. [Citations.]" (People v. Frye (1998) 18 Cal.4th 894, 1012-1013.) We cannot say the trial court abused its discretion in this case. Defendant did not claim that he was close to hiring new counsel nor did he present compelling grounds for pursuing a new trial motion. Assuming defendant could obtain the phone records in question, they would show only that a call had been made to defendants home. The issue critical to defendants alibi was not just that the call had been made but that defendant was the person with whom the caller spoke. The records would not identify the phone call participants and therefore even if available would not necessarily alter the outcome of defendants case. For each of the reasons discussed, we must conclude that the trial court did not abuse its discretion in denying defendants request to continue sentencing.

The prosecutor noted, in response to defendants continuance request, that the telephone calls in question were local calls from station to station and it would be "really amazing" if phone records for such calls could be produced.

4.

HABEAS CORPUS PETITION

In his petition for writ of habeas corpus, defendant alleges that he was denied the effective assistance of counsel. Defendant identifies eight instances in which he contends trial counsels performance was deficient. In an amendment to his writ petition, defendant also alleges that the police interfered with his Sixth Amendment right to counsel when, while executing a search warrant at his residence, police officers took and retained a timeline defendant had prepared for his attorney. The timeline, which defendant alleges he had prepared at his attorneys request, chronicled defendants activities during the days immediately preceding and following the murders of the Lovelys. For reasons we now explain we conclude the petition fails to state a prima facie basis for relief.

A. Standard of Review

"Because a petition for a writ of habeas corpus seeks to collaterally attack a presumptively final criminal judgment, the petitioner bears a heavy burden initially to plead sufficient grounds for relief, and then later to prove them. `For purposes of collateral attack, all presumptions favor the truth, accuracy, and fairness of the conviction and sentence; defendant thus must undertake the burden of overturning them. Societys interest in the finality of criminal proceedings so demands, and due process is not thereby offended. [Citation.]" (People v. Duvall (1995) 9 Cal.4th 464, 474, orig. emphasis omitted.) We evaluate the adequacy of such a petition "by asking whether, assuming the petitions factual allegations are true, the petitioner would be entitled to relief. [Citations.] If no prima facie case for relief is stated, the court will summarily deny the petition. If, however, the court finds the factual allegations, taken as true, establish a prima facie case for relief, the court will issue an OSC. [Citations.]" (Id. at pp. 474-475.)

When, as here, "the basis of a challenge to the validity of a judgment is constitutionally ineffective assistance by trial counsel, the petitioner must establish either: (1) As a result of counsels performance, the prosecutions case was not subjected to meaningful adversarial testing, in which case there is a presumption that the result is unreliable and prejudice need not be affirmatively shown [citations]; or (2) counsels performance fell below an objective standard of reasonableness under prevailing professional norms, and there is a reasonable probability that, but for counsels unprofessional errors and/or omissions, the trial would have resulted in a more favorable outcome. [Citations.] In demonstrating prejudice, however, the petition must establish that as a result of counsels failures the trial was unreliable or fundamentally unfair. [Citation.]" (In re Cudjo (1999) 20 Cal.4th 673, 687.) Defendants allegations fall within the second category and for reasons we now explain fail to establish a prima facie basis for relief.

1. Loss of Evidence

As previously noted defendants petition includes eight instances of purported deficient performance by trial counsel. Defendant first alleges that his trial attorney lost two items of evidence that defendant contends supported his alibi defense. The first piece of evidence is a billing statement from defendants cell phone provider that shows calls made on or received by defendants cell phone at or about the time the Lovelys were murdered. The second item is a letter from defendants home security company that verified an alarm call at defendants home in the early morning on October 2, 1999. Assuming without actually deciding that defense counsel lost the items, defendant cannot demonstrate either deficient performance or prejudice.

To support the allegation that trial counsel lost the evidence, defendant includes a letter from an investigator that states he turned the items over to counsel.

The cell phone bill and letter were not admissible evidence. The two items documented facts that, if relevant, constituted admissible evidence, namely the fact that calls were made to or from defendants cell phone at or about the times the Lovelys were murdered and that in the early morning hours of October 2, 1999, defendants home security alarm apparently was activated. The phone bill and letter were not admissible to prove the facts they contained because for that purpose they were hearsay.

Even if admissible under the business records exception (§ 1271), it occurs to us that both items could easily have been reproduced by the businesses that generated them.

Next, and more importantly, the facts contained in the phone bill and the letter were not relevant. The cell phone bill would show only that calls were made from or received on defendants cell phone, but such facts are irrelevant absent evidence to show, first, that defendant personally placed and received those calls and, second, that he was nowhere near the Lovelys home at the time.

Likewise, the fact that there had been alarm activity at defendants residence in the early morning hours of October 2 is irrelevant without evidence to show the cause of that activity. Defendant apparently is of the view that the alarm activity supports a chain of inferences, beginning with the inference that someone was trying to break into defendants house. From that inference defendant would have us infer that the potential burglar was probably the same person who had kidnapped defendant on September 29 and because that person tried to break into defendants house, he probably also broke into and murdered the Lovelys. Each inference is pure speculation. It is just as likely that defendant or someone in his household caused the alarm activity and therefore the fact that such activity occurred is not relevant. In short, trial counsels performance was not deficient because even if lost, the items of evidence were not relevant either directly or by reasonable inference to defendants alibi.

2. Firearms Expert

Defendant alleges that trial counsels performance was deficient because counsel did not retain an expert to examine the prosecutions firearms evidence. At trial, the prosecutor presented ballistics and firearms evidence to show that the bullets fired at defendants tires and the bullets that killed the Lovelys could have been fired from the same weapon, a SIG Sauer P-226 nine-millimeter pistol with a serial number below 480000 and that defendants brother-in-law owned such a weapon. Defendant alleges that defense counsel should have presented evidence to show, according to information maintained by the FBI, that four percent of all pistols in circulation are from unknown manufacturers. Defendant argues that the noted evidence would have cast doubt on the validity of the prosecutions evidence. We do not see the connection. Assuming for the sake of discussion that defendants evidence would have shown that another gun could have fired the bullets that killed Scott and Joan Lovely, that evidence would not negate the prosecutions evidence. Nor would it negate the fact that defendants brother-in-law owned a gun that could have fired the bullets and thus could have been the murder weapon. Defendant simply has not shown that, in failing to retain a firearms expert, trial counsels performance was deficient.

3. Financial Expert

Defendant alleges that the prosecutors evidence regarding defendants finances and those of the Lovelys was inaccurate in various respects. Therefore, defendant alleges that his trial attorney should have retained an expert to review and refute the prosecutions evidence. Defendant does not identify the manner in which the prosecutions evidence was inaccurate and for that reason alone he has failed to allege a prima facie basis for relief. But even if we were again to assume for the sake of discussion that defendants allegations are true defendant cannot dispute the evidence that during the pertinent time period in 1999 defendant personally endorsed and negotiated a total of $179,000 in checks drawn on Scott Lovelys checking account. In short, the essential details of the prosecutors evidence are correct and because defendant has not alleged otherwise, he has failed to show deficient performance by his trial attorney.

4. Computer Data

Defendant next complains that trial counsel should have hired a forensic computer analyst to show that Scott Lovely did not input the data recovered from his computer and to show that the evidence otherwise was unreliable. We will not address this allegation other than to reiterate our conclusion, explained above, that the information recovered from Scott Lovelys computer was not relevant and therefore should not have been admitted at trial. We further concluded, however, that the error was not prejudicial because of the other properly admitted evidence establishing defendants guilt. For those same reasons we must conclude, assuming trial counsels performance was deficient, that it is not reasonably probable the jury would have reached a result more favorable to defendant if trial counsel had retained a forensic computer analyst and that person had been able to undermine the validity or source of the data retrieved from Scott Lovelys computer. (Strickland v. Washington (1984) 466 U.S. 668, 697 ["If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed."].)

5. Real Estate Transactions

Defendant alleges that trial counsel should have hired an expert to examine the fragments of documents recovered from defendants computer in order to refute the prosecutors assertion that the documents represented real estate documents for transactions between defendant and Scott Lovely and also to testify regarding the customs and practices in the real estate industry. Defendant alleges that the prosecutions interpretation of the documents recovered from his computer is incorrect. Defendant, however, does not posit an alternate interpretation nor does he identify the specific inaccuracies in the prosecutors interpretation. Instead, defendant alleges only and without factual support that the prosecutors interpretation is wrong. The allegation is insufficient to show deficient performance by trial counsel.

Defendant also alleges that trial counsel failed to investigate Scott Lovelys background and sophistication as a real estate developer. According to defendant the investigation would have yielded information to show that Lovely had significant experience investing in real estate and that evidence, in turn, would have undermined the prosecutors theory that defendant was defrauding Lovely. Assuming defendants allegation is true, the fact that Lovely was a long-time and experienced real estate investor does not mean he was immune to the lure of large and quick profits. In fact, Lovelys accountant testified at trial that Lovely lost significant amounts of money in his various investments over the years.

Finally defendant alleges that a qualified real estate professional would have testified that the investments could not have netted returns at the rates posited by the prosecutor because such rates would have been usurious and therefore the transactions would have been "void on their face." Again, defendants allegation, if true, is irrelevant. The critical fact is not whether the transactions were lawful but whether the transactions existed at all and thus provided the impetus or motive for defendant to kill Scott and Joan Lovely. Defendants allegations do not establish that trial counsels performance was deficient or that defendant was prejudiced by that allegedly deficient performance.

6. Evidence to Corroborate Alibi Witnesses

Defendant alleges that trial counsels performance was deficient because counsel did not attempt to obtain phone records that defendant claims would have corroborated the trial testimony of defendants brothers-in-law that at the time the prosecutor fixed as the probable time the Lovelys were murdered, defendant was home talking to his brothers-in-law on the telephone. Defendant raised this issue in his direct appeal as the basis for his motion to continue his sentencing hearing and we rejected it in that context. We do so again here and for the same reasons — defendant has not shown that phone records of local calls exist and, even if those records do exist, they would show only that a call was placed to defendants home phone number and answered by someone. The critical fact, the identity of the person who answered the call, would not be disclosed in the phone records. Therefore, defendants allegation if true is insufficient to support an ineffective assistance of counsel claim.

7. Waiver of Attorney-Client Privilege

Defendant alleges that trial counsel made a tactical error in waiving the attorney-client privilege with respect to a chronology or timeline defendant had prepared at counsels request and that documented defendants activities for the five-day period between September 29 and October 3, 1999. Defendant alleges that he had prepared the chronology at the request of his trial attorney and had delivered a copy to counsels investigator on October 7, 1999. In executing a search warrant at defendants residence on October 21, 1999, the police seized defendants copy of the chronology, which they refused to return even after being advised of the confidential nature of the document. Defendant alleges that on the advice of trial counsel, defendant made a tactical error in waiving the attorney-client privilege and allowing the timeline to be admitted into evidence at trial. Defendant further alleges that trial counsel persuaded him to make the "errored [sic] tactical decision" because trial counsel had not adequately investigated and prepared for trial and therefore was desperate to bolster defendants alibi defense.

Assuming the truth of the allegations, defendant has not demonstrated prejudice as a result of trial counsels tactic. Defendant relied on a defense of alibi at trial. In order to present that defense, either defendant had to testify or have witnesses who could testify and account for defendants whereabouts during the three-day period in which the Lovelys could have been murdered. Defendant does not identify the witnesses who would have testified on his behalf. We must conclude from defendants failure to show otherwise, that alibi witnesses do not exist and that the timeline was the means by which defendant intended to present his alibi to the jury. Assuming the timeline was privileged, we can only conclude from the allegations in defendants petition that the decision to waive that privilege and introduce the timeline into evidence was a sound tactical decision and as such does not support an ineffective assistance of counsel claim. (Strickland v. Washington, supra, 466 U.S. at p. 689.)

As a separate allegation set out in the amendment to his writ petition, defendant alleges that by taking the timeline from defendants residence, the police knowingly interfered with defendants confidential relationship with his attorney. Defendant further alleges that the prosecution unfairly benefited from the confidential information set out in the timeline and thereby deprived defendant of his Sixth Amendment right to counsel.

Assuming the truth of defendants allegations, there is no showing that the prosecution or the police set out to violate defendants due process right to a fair trial. Unlike the cases defendant cites, in which the prosecutors and/or police officers actually eavesdropped on conversations between the defendant and defense counsel (Morrow v. Superior Court (1994) 30 Cal.App.4th 1252; Barber v. Municipal Court (1979) 24 Cal.3d 742), defendants allegations do not demonstrate that the prosecutor directed the police to acquire the timeline. At worst, defendant alleges that once the prosecutor acquired the timeline, he refused to return it to defense counsel. This is not a case in which the prosecutor intentionally invaded the defense camp. (See People v. Zapien (1993) 4 Cal.4th 929, 963.)

Because defendant has not alleged conduct by the prosecutor that is tantamount to an intentional invasion of the attorney-client relationship, defendant must allege facts to show defendant was prejudiced as a result of the prosecutors acquisition of the timeline. (See People v. Zapien, supra, 4 Cal.4th at pp. 967-968, which holds in the context of a direct attack on the judgment that the prosecution must show the misconduct was not prejudicial; because defendant raises the claim in a habeas petition he bears the burden of showing a basis for relief and that in turn requires he allege facts to show prejudice.)

Although defendant alleges that the timeline contained confidential information, that allegation is not supported by the facts. According to the factual allegations of his writ petition, the timeline recounted defendants activities and whereabouts for the period from September 29 to October 3, 1999. As discussed above, defendant either had to testify or had to introduce the timeline into evidence to establish his alibi defense. By acquiring the timeline before trial, the prosecutor deprived defendant of the element of surprise. Defendant, however, was not deprived of his right to prepare a defense or his right to effective representation of counsel.

8. Closing Argument

Defendant alleges that trial counsel was ineffective for failing to object to a comment the prosecutor made during closing argument. The prosecutor noted that defendant had referred to Scott Lovely in the past tense when initially interviewed by the police and presumably before defendant had learned about the murders. Defendant alleges that the prosecutor intentionally and knowingly distorted the context of defendants statement. Viewed in context, defendant alleges that it is apparent he was referring to the friendship between Lovely and defendants father as being in the past.

The prosecutor had focused on Detective Thompsons interview of defendant in which Thompson asked, "Now, how long have you known Scott [Lovely] that you would have called him?" The Defendant answered, "Oh, gosh, long time. He was a, he was a friend of my father, an investor with my fathers company." The prosecutor noted that defendant referred to Scott Lovely in the past tense — "He was — hes talking past tense. Hes talking past tense. Hes caught unawares."

The statement was not improper. The prosecutor was stating his interpretation of the evidence, which is the purpose of closing argument. Therefore, trial counsel had no reason to object. But even if we were to conclude otherwise, the prosecutors comment could not have been prejudicial. As the trial court instructed the jury, statements made by the attorneys are not evidence. "Evidence," as the trial court also instructed, "consists of the testimony of witnesses, writings, material objects, or anything presented to your senses and offered to prove the existence or nonexistence of a particular fact." The jury simply was free to accept or reject the prosecutors interpretation. Because the prosecutors statement was not improper there was no reason for trial counsel to object. Defendants claim that trial counsel was ineffective must likewise fail.

B. Conclusion

The allegations of defendants petition for writ of habeas corpus do not demonstrate a prima facie basis for relief. Therefore, we must deny the petition.

DISPOSITION

The judgment is affirmed. The petition for writ of habeas corpus is denied.

We concur: Hollenhorst, Acting P.J., Gaut, J.


Summaries of

People v. Self

Court of Appeals of California, Fourth Appellate District, Division Two.
Nov 24, 2003
No. E031553 (Cal. Ct. App. Nov. 24, 2003)
Case details for

People v. Self

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. KENNETH WAYNE SELF, Defendant and…

Court:Court of Appeals of California, Fourth Appellate District, Division Two.

Date published: Nov 24, 2003

Citations

No. E031553 (Cal. Ct. App. Nov. 24, 2003)