Opinion
F085009
12-14-2023
THE PEOPLE, Plaintiff and Respondent, v. SPURGEON BLAND, JR., Defendant and Appellant.
Ross Thomas, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Dina Petrushenko, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County. No. CR-21-007702 Dawna Reeves, Judge.
Ross Thomas, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Dina Petrushenko, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
Spurgeon Bland, Jr. (defendant), argues his trial counsel's failure to object to statements made by a witness at trial alleging defendant used drugs constituted ineffective assistance of counsel which denied defendant his state and federal due process rights. We affirm.
PROCEDURAL HISTORY
On November 9, 2021, the Stanislaus County District Attorney's office charged defendant with kidnapping (Pen. Code, § 207, subd. (a) ; count 1), attempted murder (§§ 664, 187, subd. (a); count 2), assault with a deadly weapon (§ 245, subd. (a)(1); count 3), and battery (§ 243, subd. (e)(1); count 4.) As to count 2, it was alleged defendant acted intentionally, deliberately and with premeditation in the commission of the attempted murder. As to counts 2 and 3, it was further alleged defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)) and personally used a deadly or dangerous weapon-a knife (§ 1192.7, subd. (c)(23).) Finally, it was alleged defendant had two prior strike convictions within the meaning of section 667, subdivision (d) and two prior serious felony convictions within the meaning of section 667, subdivision (a).
Undesignated statutory references are to the Penal Code.
On March 25, 2022, a jury found defendant guilty of assault with a deadly weapon and found true that he personally inflicted great bodily injury. The jury found defendant not guilty on all other charges.
On April 20, 2022, a bifurcated bench trial was held on the prior conviction allegations. The court found all four priors true. At sentencing, the court granted defendant's Romero motion as to one of the strikes. Defendant was ultimately sentenced to 19 years in state prison.
People v. Romero (1996) 13 Cal.4th 497.
On September 26, 2022, defendant filed a timely notice of appeal.
STATEMENT OF FACTS
We summarize the facts relevant to the issues presented in the instant appeal. Alejandro Perez Padilla was renting a room in a home in Modesto, California in August 2021. On the morning of August 18, 2021, Perez saw defendant dropping off clothes at the home. Around midnight on August 19, 2021, Perez was sitting on the porch with a friend, when he saw defendant return to the home.
The Attorney General indicated Alejandro Perez Padilla preferred to go by Perez as his last name. Respectfully, we refer to him as Perez throughout this opinion.
Defendant approached Perez and shone a light in his face. Perez asked," 'Why are you shining the light at us?'" Defendant responded that he had never seen Perez before. Then, defendant began stabbing Perez. Perez was stabbed in the neck, arms, ribs, and back as he ran.
Law enforcement arrived to help Perez. Perez told officers that defendant was a black male adult with a shaved head and glasses. At the hospital, Perez also picked defendant out of a photo lineup as the person who stabbed him, with 70 percent certainty.
Meanwhile, officers responded to an incident at a nearby market. Officers were advised that defendant had kidnapped a woman and was in a car outside the market. Officers conducted a "high risk stop" on the car and arrested defendant.
The woman was previously in a relationship with appellant.
The woman with defendant was very frantic. She told officers that defendant had asked her to pick him up from his aunt's house, and that defendant was crying and visibly shaking. Defendant told the woman he had just killed somebody. Defendant grabbed her, forced her into a car, and told her to drive him out of town.
Defendant and the woman also exchanged text messages. Defendant wrote to the woman," 'Baby, I'm going to prison. Just got into a fight, and I think I killed someone.'" He also wrote," 'I think he died,'" and" 'Crime scene.' "
DISCUSSION
Defendant argues trial counsel's failure to object to testimony by a witness alleging defendant used drugs constituted ineffective assistance of counsel, because it permitted the jury to improperly consider inflammatory evidence of prior conduct as proof he committed the charged crimes. We find no ineffective assistance of counsel.
A. Background
On cross-examination, defense counsel elicited the following testimony from Perez:
"[DEFENSE]: Okay. Now, you said that the person who approached the house was unusual, based on the People's questions; is that fair to say?
"[PEREZ]: Based on what I have heard about the person who approached the house, I know that he's a drug addict. I know that he was probably using at the time.
"THE COURT: Just a second. [¶] .. [¶]
"THE COURT: Hold on Mr. Perez. The attorneys are going to ask you some questions, very specific questions. Please just listen to the question and try to answer what they are asking. We can get this over a lot faster that way. [¶] Try again, [counsel]. [¶] ... [¶]
"[DEFENSE]: Now, when you were talking to the police at the hospital, you didn't know who it was; fair to say?
"[PEREZ]: I don't. I didn't.
"[DEFENSE]: All right. And when the people-when the police asked you, 'There's no reason why he would want to stab you' your answer was, 'Because he's a [f**king] tweaker.' [¶] Do you remember that?
"[PEREZ]: Yeah. Yeah, that was
"[DEFENSE]: Okay. Now, you had beer that night, you said?
"[PEREZ]: I had half of .. a 40-ounce [beer]. So that would be like two beers.
"[DEFENSE]: Okay. I'll come back to that later." Defendant did not object to the testimony. During closing argument, defense counsel argued:
"We then come across Mr. Perez. Mr. Perez was directly asked by the police, 'There's no reason why he would want to stab you?'
" 'Perez: Because he's a [f**king] tweaker.'
"He said that as he sat right here in front of everyone during trial. [¶] ... [¶]
"Or is it maybe because he was never stabbed on Donald Street. Maybe it wasn't [defendant], and maybe at some point it was actually-he was actually stabbed but not there. Maybe [a] Hispanic man; maybe a black man. We don't know. [¶] . [¶]
"And because his judgment at the time was clouded, he never committed to the [photo lineup], he never committed to him in open court. Maybe because he can't. . Because either he was Hispanic, or he was black, or he was dark-skinned. Because Mr. Perez said, 'He's a [f**king] tweaker?'
"There was absolutely no reason for any type of stabbing to occur. Maybe a fight between someone who is drunk, someone visiting his family, yes. But stabbing with zero evidence? [¶] We ask that you find [defendant] not guilty on all charges."
B. Legal Standard
To prevail on an ineffective assistance of counsel claim, defendant "must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice. [Citation.] Tactical errors are generally not deemed reversible, and counsel's [decision making] must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation....' [Citation.] Finally, prejudice must be affirmatively proved; the record must demonstrate 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" (People v. Bolin (1998) 18 Cal.4th 297, 333 (Bolin).)
" 'It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. . The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.] Specifically, 'When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.'" (People v. Ledesma (1987) 43 Cal.3d 171, 217-218.)
C. Analysis
Defendant argues that evidence of drug use was not admissible to show intent, knowledge, identity or other issues, therefore it was irrelevant and trial counsel's performance was deficient when trial counsel failed to object to Perez's statements. Defendant further argues the jurors "could well have been prejudiced against [defendant]" due to the allegation of illicit drug use.
The decision "[w]hether to object to inadmissible evidence is a tactical decision" (People v. Hayes (1990) 52 Cal.3d 577, 621), and a "failure to object seldom establishes counsel's incompetence." (Ibid.) "[C]ompetent counsel may often choose to forgo even a valid objection." (People v. Riel (2000) 22 Cal.4th 1153, 1197.)
A review of the record, particularly a review of defendant's closing argument, indicates that trial counsel used Perez's statement that defendant was a" 'f[**]king tweaker'" to diminish Perez's credibility. Trial counsel repeated the statement several times during closing argument, always in the context of challenging Perez's state of mind at the time of the stabbing and the reliability of Perez's identification. In "reviewing the conduct of counsel [we] must in hindsight give great deference to counsel's tactical decisions." (People v. Holt (1997) 15 Cal.4th 619, 703.) We cannot say from the record that there is" 'no satisfactory explanation'" for trial counsel's tactical decision not to object to Perez's statements. (Bolin, supra, 18 Cal.4th at p. 333.)
And even if trial counsel's performance was deficient, defendant has not shown a reasonable probability that but for Perez's offhand comments that defendant used drugs or was a" 'tweaker,'" the outcome would have been different. (Bolin, supra, 18 Cal.4th at p. 333.) Defendant argues it is respondent's burden to show that the omission was harmless beyond a reasonable doubt. This is incorrect. It is defendant's burden to show not just "some conceivable effect on the outcome" but that the error" 'undermine[d] confidence in the outcome'" of this case. (People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.)
Perez testified that he did not know defendant and had only seen him the day of the stabbing. Likewise, the prosecution did not refer to defendant's alleged drug use in their closing argument. It is unlikely that Perez's opinion of defendant carried much, if any, weight. And because the prosecution did not use Perez's statements to inculpate defendant, we cannot say that the jury's verdict was necessarily affected by the statement in a way that prejudiced defendant.
Because defendant has failed to affirmatively demonstrate prejudice, his ineffective assistance of counsel claim fails.
DISPOSITION
The judgment is affirmed.
[*] Before Hill, P. J., Franson, J. and Meehan, J.