Opinion
C041256.
10-8-2003
THE PEOPLE, Plaintiff and Respondent, v. MARIO DAVID THOMPSON, Defendant and Appellant.
A jury convicted defendant Mario David Thompson of evading a peace officer with wanton disregard for others (Veh. Code, § 2800.2, subd. (a); count one), failing to stop at the scene of an accident resulting in property damage (Veh. Code, § 20002, subd. (a); count two), and resisting, obstructing, or delaying a peace officer (Pen. Code, § 148, subd. (a)(1); count three). The trial court found that defendant had six prior serious felony convictions, for robbery, within the meaning of the "three strikes law" (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). Defendant was sentenced to state prison for 25 years to life on count one, and was given concurrent terms of 180 days in county jail on counts two and three.
On appeal, defendant contends (1) the court erred in denying his motion to dismiss for lack of a speedy trial; (2) his trial counsel was ineffective; (3) evidence that defendant gave a false name when arrested should not have been introduced; and (4) cumulative error requires reversal. We shall affirm the judgment.
FACTS
Stockton Police Officers Crawford and Chraska saw a blue 1981 Oldsmobile Cutlass fail to stop at the stop sign or flashing red light controlling the intersection at Airport Way. The car proceeded on at a speed of approximately 70 miles per hour. Officer Crawford activated the red and blue lights on his patrol car, but the Cutlass failed to slow down. The car finally stopped after Crawford turned on the siren.
Using his spotlight, Officer Crawford illuminated the interior of the Cutlass and observed that its driver was the only occupant of the car. As Crawford started to get out of his patrol car, the Cutlass sped away. The officers resumed their pursuit. The driver of the Cutlass lost control as he turned at approximately 40 miles per hour, and the car slid sideways, nearly hitting a pedestrian.
The Cutlass ultimately struck another car, went through a chain link fence, and came to rest against a tree in the front yard of a residence. When defendant crawled out through the drivers side window (the tree prevented the drivers door from opening), Officer Crawford grabbed him. But defendant broke loose and ran.
Defendant eventually was captured as he crouched at the side of a nearby house. From the time the officers initially stopped the Cutlass until it crashed into the tree, the car was never out of their sight. No one emerged from the car except defendant.
When defendant was arrested and booked, he falsely identified himself as Mario Adams and gave a false date of birth.
Defendant testified at trial. He admitted being in the Cutlass but claimed he was a passenger in the back seat. According to defendant, the driver and front seat passenger fled after the crash. Defendant explained that he gave a false name when he was apprehended because he had a warrant for his arrest.
Richard Black lived in the house where the Cutlass crashed. He testified that he went outside after hearing the crash, saw the empty Cutlass with its passenger door open, and observed two men running away. Black acknowledged that his recollection of the incident was vague and that there had been several car crashes in the neighborhood.
DISCUSSION
I
Defendant claims the trial court erred by denying his motion to dismiss for denial of a speedy trial. We are not persuaded.
Defendant was arraigned on the information on September 27, 2000. On November 20, the trial was continued to November 27, after a time waiver by the parties. On November 27, the prosecutor and defense counsel agreed to a continuance until January 23, 2001, but defendant personally refused to waive time.
Defense counsel informed the trial court that (1) he and the prosecutor had other obligations, (2) he had just received a list of four potential defense witnesses and needed time to get their addresses and interview them; (3) he wanted to file a written response to an in limine motion; and (4) defendant wanted him to file a motion in another case to reinstate a guilty plea that he had entered under a false name and subsequently withdrew.
The trial court found good cause for the continuance and accepted defense counsels time waiver on behalf of defendant.
On March 6, 2002, the trial court granted defendants request to represent himself, and then considered his motion to dismiss for denial of a speedy trial. The court upheld the finding of good cause for the continuance and denied the motion to dismiss.
On March 7, 2002, defendant withdrew his request to represent himself, and defense counsel was reappointed. The court then reconsidered the motion to dismiss and again found that there was good cause for the continuance.
Penal Code section 1382, subdivision (a), states in pertinent part: "The court, unless good cause to the contrary is shown, shall order the action to be dismissed in the following cases: [& para;] . . . [¶] (2) In a felony case, when a defendant is not brought to trial within 60 days of the defendants arraignment on an indictment or information . . . . However, an action shall not be dismissed under this paragraph if either of the following circumstances exist: [¶] . . . [¶] (B) The defendant requests or consents to the setting of a trial date beyond the 60-day period. Whenever a case is set for trial beyond the 60-day period by request or consent, expressed or implied, of the defendant without a general waiver, the defendant shall be brought to trial on the date set for trial or within 10 days thereafter." (Further section references are to the Penal Code unless otherwise specified.)
"We review a decision to grant continuances under section 1382 for an abuse of discretion. [Citation.]" (People v. Memro (1995) 11 Cal.4th 786, 852.) "In reviewing trial courts exercise of that discretion, the appellate courts have evolved certain general principles. The courts agree, for example, that delay . . . for defendants benefit [] constitutes good cause." (People v. Johnson (1980) 26 Cal.3d 557, 570; fn. omitted (lead opn.).) Subject to certain limitations, the consent of counsel alone without that of the client satisfies section 1382, subdivision (a)(2). (Townsend v. Superior Court (1975) 15 Cal.3d 774, 780.) The question is whether the delay is sought for the benefit of the defendant. (People v. Noriega (1997) 59 Cal.App.4th 311, 320, fn. 4.)
Here, defense counsel cited four reasons for a continuance. One reason, that he had just received a list of four potential witnesses and needed to obtain their addresses and interview them, was indisputably for defendants benefit and not merely for counsels convenience. (People v. Noriega, supra, 59 Cal.App.4th at p. 320.)
Defendant argues defense counsel did not need two months to pursue the witnesses. The record suggests otherwise. Following the continuance, the prosecutor noted, at the hearing on March 12, 2002, regarding the motion to dismiss, that certain witnesses names were still unknown and they had yet to be located.
Because defense counsels consent to the continuance constituted "good cause to the contrary" within the meaning of section 1382, subdivision (a), the requirements of subpart (2), including subpart (B)s provision for a 10-day continuance, did not apply. The trial courts decision to grant a continuance was not an abuse of discretion. (People v. Memro, supra, 11 Cal.4th at pp. 852-853.)
II
Defendant contends he received ineffective assistance when defense counsel failed to question Juror No. 7 about breach of an admonition from the court. We are not convinced.
Following the presentation of evidence and instruction of the jury, Juror No. 7 informed the court that the juror did not recall the earlier instruction not to visit the scene of the crimes and did, in fact, drive by the location.
The court allowed both counsel to question Juror No. 7 outside the presence of the other jurors. Juror No. 7 admitted driving by portions of the route that defendant drove before the collision. The prosecutor asked about what Juror No. 7 saw, what impressions may have formed, and whether Juror No. 7 could "put aside everything you saw and just deal with [the trial testimony]." Juror No. 7 replied that what was observed at the scene "pretty much confirmed what [was] heard" in court, except that the area was "more compressed" than Juror No. 7 thought because that neighborhood differs from Juror No. 7s neighborhood where the "space of house and blocks are much larger."
The prosecutor asked that the court admonish Juror No. 7 not to discuss the observations at the scene with other jurors. When the court inquired whether he consented to the admonition, defense counsel said he did. The court then admonished Juror No. 7 to "[d]isregard what you saw" at the scene, not to discuss those observations with other jurors, and not to allow those observations to influence the deliberations. Defense counsel did not pursue the matter further and did not request that Juror No. 7 be removed.
"`"[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsels performance was `deficient because his `representation fell below an objective standard of reasonableness . . . under prevailing professional norms. [Citation.] Second, he must also show prejudice flowing from counsels performance or lack thereof. [Citation.] Prejudice is shown when there is a `reasonable probability that, but for counsels 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.]" [Citation.]" (People v. Avena (1996) 13 Cal.4th 394, 418, fn. omitted.) Defense counsel is not required to undertake futile acts merely to avoid a claim of ineffective assistance. (People v. Anderson (2001) 25 Cal.4th 543, 587; People v. Hines (1997) 15 Cal.4th 997, 1038, fn. 5.)
Here, defense counsel rationally could have believed that the trial courts admonition was sufficient to cure the misconduct and that a request for further admonition or removal of Juror No. 7 would have been futile. The location of the pursuit and the distances involved were not at issue; rather, the issue was whether defendant drove the Cutlass or was a back seat passenger. Resolution of that issue required the jurors to assess the witnesses credibility, not to determine the layout or the scale of the area where the pursuit occurred. It is not reasonably probable that defendant could have fared any better had defense counsel requested a further admonition or removal of Juror No. 7. (People v. Avena, supra, 13 Cal.4th at p. 418.)
III
Defendant argues the trial court abused its discretion by allowing the prosecution to introduce evidence that defendant used a false name when he was arrested. We disagree.
Prior to trial, the prosecutor said he intended to introduce evidence that, when defendant was arrested and, later, when he was booked, he identified himself as Mario Adams. The prosecutor argued this showed consciousness of guilt. Defense counsel countered that using the false name did not tend to show defendant was the driver as opposed to a passenger. The trial court ruled the evidence was relevant and was not unduly prejudicial, in that it would not be time-consuming and the jury would determine the weight to which it was entitled.
A jury may rationally infer a defendants false statements, such as use of a false name, "`tend[] to show consciousness of guilt." (People v. Holt (1997) 15 Cal.4th 619, 678, quoting People v. Rodrigues (1994) 8 Cal.4th 1060, 1140.) A jury also may "infer, if it so chooses, that the flight of a defendant immediately after the commission of a crime indicates a consciousness of guilt." (People v. Mendoza (2000) 24 Cal.4th 130, 180.)
"Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion `must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.] [Citation.]" (People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125, italics in original.)
Defendant has not shown that the courts exercise of discretion was arbitrary, capricious, or patently absurd. Defendants use of a false name when arrested and booked was plainly relevant to show his consciousness of guilt. (People v. Holt, supra, 15 Cal.4th at p. 678; People v. Mendoza, supra, 24 Cal.4th at p. 180.) And evidence of his use of the false name was not unduly prejudicial. "`The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. . . ." (People v. Bolin (1998) 18 Cal.4th 297, 320; see People v. Padilla (1995) 11 Cal.4th 891, 925, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Evidence that defendant gave a false name did not tend "uniquely" to evoke an emotional bias against him because it was very similar to the evidence that he fled from the police after the crash. (People v. Bolin, supra, 18 Cal.4th at p. 320.)
Moreover, defendants explanations for the flight and the false name were identical — he had a "misdemeanor warrant from probation" and had negative past experiences with law enforcement. Because both acts supported the same inference and drew the same explanation from defendant, admission of evidence of the false name latter act could not have been prejudicial. There was no abuse of discretion. (People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.)
IV
Since we have rejected defendants individual claims of error, there is no merit in his assertion that the cumulative effect of the purported errors denied him due process of law and rendered his trial fundamentally unfair.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, J., MORRISON, J.