Opinion
C041776.
10-29-2003
THE PEOPLE, Plaintiff and Respondent, v. DANNY LOU TRESNER, Defendant and Appellant.
Defendant Danny Lou Tresner was convicted of being a felon in possession of ammunition. He appealed to this court, contending, among other things, that the trial court abused its discretion when it denied his motion made pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) without conducting further inquiry into two alleged omissions by his trial attorney, Gene Prather. We reversed the judgment and remanded for reconsideration of the Marsden motion. (People v. Danny Lou Tresner (Apr. 3, 2002) C037583 [nonpub. opn.].) At defendants request, we take judicial notice of our records in case No. C037583. (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).)
In July 2002, the trial court conducted an in camera hearing at which only defendant and Prather were present. The court asked both men specific questions and again denied the Marsden motion. It then reinstated the judgment and sentence.
Defendant again appeals, contending the trial court erred in ruling that Prathers decisions "were made with sufficient knowledge of the facts and thus were valid tactical decisions." We affirm the judgment.
FACTS AND PROCEEDINGS
Our statement of facts is taken primarily from our prior opinion.
Defendant is a felon prohibited from possessing ammunition. During a lawful search of a two-bedroom mobilehome where he lived with his girlfriend, Paula Gladson, Yuba County Deputy Sheriff, Sergeant Duncan found three live rounds of ammunition in a metal can on a dusty shelf in a closet in the spare bedroom. When Sergeant Duncan interviewed defendant at the sheriffs office, he knew the caliber of the rounds Duncan had found (two .270-caliber rifle rounds and one .41-caliber handgun round) but claimed they belonged to someone else.
At trial, Sergeant Duncan was the only witness in the Peoples case-in-chief. Duncan testified that he did not tell defendant or the other law enforcement officers on the scene (Parole Agents Judy Foster and Floyd Mackintosh) the caliber of the bullets he had found. Defendant offered testimony from Gladson, her brother, and her brothers girlfriend to show that the bullets belonged to the brother and his girlfriend, who had previously lived in the trailers spare bedroom.
During closing argument, Prather suggested that defendant could have known the caliber of the bullets because he might have overheard the officers discussing that subject during their search. The trial court sustained the prosecutors objection to that argument on the ground it contradicted the testimony.
At the first Marsden hearing, defendant complained that Prather "failed to request that the shelf in the spare bedroom and the bullets be examined for fingerprints." Defendant told the court: "I asked that the fingerprints be taken off the shelf. Surely in — I feel in the trial that would have been important. Also in my case surely if I knew about them shells my fingerprints would be on those shells."
Defendant also complained: "I requested from [Prather] that all the officers be present again because that statement of the ammo at the time that it was related to me was in front of two other officers that were not even in the courtroom so I couldnt call them. This is where I received the information on the actual caliber of the ammo."
We concluded that the trial courts inquiry into these issues had been inadequate and remanded with directions to reconsider defendants motion for appointment of substitute counsel.
At the second Marsden hearing, the trial court asked defendant and Prather to address both issues. Their respective comments are set forth in the discussion that follows. After receiving those comments, the trial court denied the Marsden motion in a ruling that did not specifically address either issue identified by this court.
The trial court ruled that Prather, "at the time he made the decisions he made, made that from a knowledgeable point of view, given what he said he considered. He made a tactical decision that [defendant] may not have agreed with but it was from a knowledgeable point of view. Given the fact that this Marsden hearing was conducted subsequent to the jury having returned a finding of guilty and [defendant] having, prior to that time, waived his right to any jury involvement as to the priors or limited issue that was left for the Court to try and recall the demeanor of [defendant] at the time of that original Marsden hearing, Court does not perceive there was a breakdown in attorney/client relationship such that would necessitate removal of Mr. Prather for the purpose of conducting a Court trial or as to sentencing."
DISCUSSION
Defendant contends the trial courts ruling was erroneous as to both of his specific complaints, which we consider in turn. We begin by setting forth our standard of review.
"The governing legal principles are well settled. `"When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorneys inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations]." [Citation.] `[S]ubstitution is a matter of judicial discretion. Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would "substantially impair" the defendants right to assistance of counsel." (People v. Hart (1999) 20 Cal.4th 546, 603.)
It is settled that a disagreement concerning tactics is insufficient to compel the discharge of appointed counsel, unless it signals a complete breakdown in the attorney-client relationship. (People v. Hart, supra, 20 Cal.4th at p. 604; see People v. Crandell (1988) 46 Cal.3d 833, 859-860, overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365.)
I
Fingerprints
Initially we note that the trial courts questions to Prather regarding the fingerprint evidence did not track our remand order in that it did not ask him to address the failure to request fingerprint examination of the bullets themselves. Because Prathers answer suggests his reason for not seeking examination of the bullets, this was not prejudicial.
In any event, the trial court and Prather addressed the fingerprint issue as follows:
"THE COURT: [Defendant] complained that you did not request that the shelf on which the bullets were found be examined for fingerprints. [¶] Do you recall that area?
"MR. PRATHER: Yes, sir, I do.
"THE COURT: Could you address that for me, please?
"MR. PRATHER: Yes, sir. In my understanding of fingerprint — in my understanding of the circumstances of which law enforcement did the search and subsequent moving in and of [Gladson] into the trailer, I did not feel that designating the prints would be one, productive, or two, that it would lead to any type of evidence that would be favorable to [defendant].
"THE COURT: Its been a long time since we did this trial, but my recollection is that there was no issue as to whether or not [defendant] actually resided in that mobile home, was it not?
"MR. PRATHER: Thats correct.
"THE COURT: There was no question but that he, in fact, lived there?
"MR. PRATHER: Thats correct."
Defendant claims that Prathers "statement amounts to nothing more than a bald declaration, unsupported by facts, that [Prather] did not believe that this avenue of investigation would reveal evidence favorable to" him. Defendant claims that if his fingerprints were not found, "such fact, while not dispositive, would have supported [his] defense of lack of knowledge of the contraband."
Prathers tactical decision must be viewed, in part, in the light of the law of constructive possession. Possession may be actual or constructive. (People v. Rogers (1971) 5 Cal.3d 129, 134.) "Constructive possession exists where a defendant maintains some control or right to control contraband that is in the actual possession of another. [Citation.]" (People v. Morante (1999) 20 Cal.4th 403, 417.) Constructive possession may be imputed when contraband is discovered in a place that "is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another." (People v. Newman (1971) 5 Cal.3d 48, 52, overruled on other grounds in People v. Daniels (1975) 14 Cal.3d 857, 862.) "Exclusive possession is not necessary. A defendant does not avoid conviction if his right to exercise dominion and control over the place where the contraband was located is shared with others." (People v. Rushing (1989) 209 Cal.App.3d 618, 622.)
Prathers concession that there "was no question but that [defendant], in fact, lived there" effectively acknowledged that the then-unoccupied spare bedroom was at least jointly accessible to, and under the control of, defendant, who lived in the mobilehome. Under the law of constructive possession, evidence that defendant had handled the bullets or had touched the shelf was not required, and evidence that he had not done so could not defeat an imputation of constructive possession.
On the question of defendants knowledge of the existence of the ammunition in the home, evidence of the absence of his fingerprints on the shelf or on the bullets would have been, at best, ambiguous. The existence of defendants fingerprints on the shelf would have been damning and the existence of his fingerprints on the bullets would have been conclusive. But the probative value of their absence would have been slight because their absence could be reconciled either with defendants knowledge of the bullets — that is, he may have known of them even though he did not handle them — or his lack of knowledge. Prather impliedly recognized this ambiguity when he stated his belief that the evidence would not be "favorable to [defendant]."
Moreover, even apart from the law of constructive possession, the record shows a valid tactical reason to refrain from requesting a fingerprint examination. Gladson testified at trial that she and defendant placed a television in the spare bedrooms closet shortly before the officers arrived. Prather could have rationally believed that if defendant entered the closet just before the bullets were found, his fingerprint could be on or near the shelf. Prather could have believed that explaining away an "innocent" fingerprint found close to the bullets would be more difficult than arguing defendants lack of knowledge of the bullets without corroborating evidence that his fingerprints had not been found. Thus, Prather could rationally conclude that "designating the prints" would not necessarily be "productive" or lead to "favorable" evidence.
Thus, defendants disagreement with Prathers reasonable tactical decisions regarding fingerprint evidence did not signal a complete breakdown in the attorney-client relationship and did not require substitution of counsel before the bifurcated court trial and sentencing. (People v. Hart, supra, 20 Cal.4th at p. 604.)
II
Parole Agent Witnesses
The trial court and Prather addressed the second issue, failure to call Parole Agents Foster and Mackintosh as witnesses at trial, as follows:
"MR. PRATHER: Your Honor, in my investigation of this case, which included talking with [defendant] and having my investigator talk to other witnesses, I came to the conclusion — and also based on the preliminary hearing testimony — I came to the conclusion that [Officers Foster and Mackintosh] did not have any information that would be favorable to [defendant].
"THE COURT: Do you have a recollection — let me back up for a second. I have a recollection that [Sergeant Duncan] testified not only as to what they had found as far as the physical evidence but that [defendant] had made the statement to them that pretty well established that he knew the caliber of the guns. Was my memory okay?
"MR. PRATHER: That is, Your Honor."
The trial court assured Prather that he could discuss his initial conversations with defendant. Prather then recounted the following:
"When I first talked to [defendant] after I reviewed the reports, my concern was one of did [defendant] overhear these officers talking about the bullets? And with my first couple of meetings with [defendant], I asked him specifically did he overhear the conversation in which he informed me `No. He informed me originally that the officer was mistaken, that [Gladson] originally must have been the one who had made those statements. Based on that, I got investigative funds to go and try to verify that. And at the preliminary hearing I asked [Sergeant Duncan], you know, just to cover myself, if he and other officers talked about the caliber of the bullets in which he said that no, they did not. During the course of my investigation, [defendant] had given variations of how he learned about the caliber of the bullets, variations, including hearing about after he was picked up and his girlfriend told him — her name is Paula — about hearing about it at the scene. And Paula had overheard it, and all of that didnt pan out. Literally right before trial he informed me that Paula did not hear about it, it was only he. And I felt that being the case given the type of information he was giving me, that it was — it would not be a fruitful aspect to go and pursue that aspect any further."
The trial court asked defendant whether he wished to respond. Defendant stated that on the night of his arrest, officers moved him out of the mobilehome and onto his porch. As they were leaving the mobilehome, an officer showed him a "Slim Jim." He stated that it belonged to "Barry," a previous resident. The officers brought defendant back inside the mobilehome and told him they had found live ammunition in a bedroom. Defendant told an officer that Paula had told him that her brother had a rifle with .370-caliber rounds. The officer told defendant that they had found .370-caliber and .41-caliber rounds. Defendant claimed that this was the story he had told Prather from the beginning.
Although it makes no difference to our decision, we note that Prathers recollection of when he asked Duncan about the conversations at the house was incorrect. At the preliminary hearing, Prather asked Duncan, "[w]as there any type of a conversation with the other law enforcement officers there about the caliber?" The Peoples relevance objection was sustained.
At trial, Prather asked Duncan, "[d]o you know if any other officers had talked to [defendant] about what was found during the search?" Duncan answered, "Not that Im aware of."
In any event, defendant contends Prathers failure to present Parole Agents Foster and Mackintosh as trial witnesses "cannot be deemed an informed tactical choice." He claims that Prathers failure to present the agents was "crucial because it was only these officers who were in a position to offer information on what they themselves heard." We disagree.
Prather explained at the second Marsden hearing that defendant had given him several different versions of how he had learned the caliber of the bullets, none of which were consistent with the others. First, he claimed that he had not overheard the officers conversation and that only Gladson had made statements to the officers about the caliber of the bullets; next, he claimed that Gladson had overheard the officers discussion of the caliber of the bullets and had given him the information, which he repeated in the officers presence; and finally right before trial, he claimed that Gladson had not overheard the officers conversation but that he had overheard it.
Because defendant first admitted that he had not overheard the officers conversation, and he later made contrary claims that could not be substantiated, Prather could reasonably deduce that defendant had been truthful at the outset and that further pursuit of the agents testimonies would most probably corroborate his initial admission, which would not be "fruitful" for the defense. Whereas the record of the first appeal required us to speculate as to how the parole agents would have testified, the present record supports a reasonable inference that the officers had not discussed the caliber of the bullets or that no discussion had been overheard by defendant. On this record, Prather made a knowledgeable election to forgo further pursuit of the parole agents testimonies. (See People v. Groce (1971) 18 Cal.App.3d 292, 296.)
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, Acting P.J. and ROBIE, J.