Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FSB45056 Brian S. McCarville, Judge.
Kevin C. McLean, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Kelley Johnson, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Gaut J.
Defendant was convicted of recklessly evading a police officer (Veh. Code, § 2800.2), a charge arising from a high speed police chase, and sentenced to state prison. He appeals the denial of a nonstatutory motion for new trial, made on the ground his trial attorney failed to investigate and present defense witnesses who would have testified the defendant was not the person involved in the police chase. Defendant’s theory was that he and his girlfriend were driving in a different car—one that matched the description of the car involved in the police chase down to the license number—and that he was mistaken for the person involved in the chase. We modify and affirm.
1. Background
In the evening hours of December 29, 2003, San Bernardino Police Detective Henry Birkes was on patrol on the Interstate 215 freeway along with an Explorer ride-along partner. At the junction where the 215 merges with State Route 30 going southbound, Birkes observed a white Chevy pickup and a green Chevy Camaro driving in tandem, at a speed of approximately 85 miles per hour. Birkes attempted to initiate a traffic stop on the green Camaro by activating his overhead lights. The vehicles pulled off the freeway at “I” Street. The green Camaro slowed, pulling over to the curb, but then accelerated away at a high rate of speed when Birkes parked his vehicle. Birkes pursued the Camaro on surface streets.
The green Camaro turned eastbound on Mill with Birkes following, using his vehicle’s wail-right siren. After going through a controlled intersection, Birkes noticed the green Camaro was now coming back in the opposite direction, accelerating towards Birkes’ vehicle, with its headlights turned off. Birkes believed defendant, whom he identified as the driver of the green Camaro, was attempting to “ram” him. Birkes did not see any other occupants in the car.
Birkes made a U-turn and followed the Camaro on surface streets, until he lost sight of it. Birkes ran a check of the license number but it came back to a Saturn, not the green Camaro. The license number was 3KDL732. Officer Travis Walker, who had been monitoring the pursuit from his vehicle, saw defendant run across “C” Street, and ordered defendant to stop. Defendant ran away from the officer, throwing a set of keys into a field. Walker took defendant into custody and retrieved the keys from the field. The green Camaro was located walking distance from where defendant was arrested. Walker was able to use the keys to open the passenger side of the Camaro and used the keys to start the vehicle. Birkes identified defendant as the same person he had seen driving the green Camaro during the chase.
Defendant was charged with assault upon a peace officer (Pen. Code, § 245, subd. (c), count 1), assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), count 2), and evading an officer with reckless disregard. (Veh. Code, § 2800.2, subd. (a), count 3.) It was further alleged that defendant had been previously convicted of a serious or violent felony (Strike; Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and had served a prior prison term. (Pen. Code, § 667.5, subd. (b).) At trial, defendant was represented by retained counsel who repeatedly showed up late or unprepared for court hearings, or failed to appear at all, resulting in sanctions. Following a jury trial, defendant was acquitted on counts 1 and 2, and convicted on count 3. At the court trial to determine the truth of the prior conviction allegations, the defendant submitted on the basis of the documents relating to the prior convictions, and the court made a true finding.
A motion for new trial based on ineffective assistance of trial counsel was brought by a newly retained attorney. The motion was denied after a full evidentiary hearing. Defendant was sentenced to state prison for the middle term of two years, doubled due to the Strike allegation, for a total term of four years.
2. Discussion
A. Defendant Was Not Deprived of Effective Assistance of Counsel.
Defendant claims the trial court erred in denying his motion for new trial. The motion was made on the nonstatutory ground that defendant was deprived of his constitutional right to effective assistance of counsel by his trial attorney’s failure to investigate his mistaken identity defense and to present defense witnesses. While defense counsel did much to earn the court’s impatience, irritation and criticism (as well as more than one citation for contempt of court), counsel’s decision to not purse the defense now urged does not require a reversal.
A defendant may bring a motion for new trial on the nonstatutory ground that he or she was deprived of effective assistance of counsel. (People v. Fosselman (1983) 33 Cal.3d 572, 582-583.) A trial court may grant a motion for new trial, prior to judgment, if effectiveness of counsel can be determined based on counsel’s trial performance observed by the court. (People v. Chien (2008) 159 Cal.App.4th 1283, 1289.)
To demonstrate that his right to effective assistance of counsel was violated, defendant must satisfy a two-pronged test: He must show (1) performance below an objective standard of reasonableness by his attorney, and (2) prejudice sufficient to establish a reasonable probability he would have obtained a more favorable result in the absence of counsel’s error. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 [104 S.Ct. 2052, 80 L.Ed.2d 674].) There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) Tactical decisions are generally not deemed reversible, and counsel’s tactical decisions must be evaluated in the context of all the available facts. (Strickland v. Washington, supra, at p. 690 [104 S.Ct. at p. 2066].)
The decision whether or not to call certain witnesses is peculiarly a matter of trial tactics unless the decision result from an unreasonable failure to investigate. (People v. Bolin (1998) 18 Cal.4th 297, 334.) An attorney is not required to interview all prospective witnesses. (In re Alcox (2006) 137 Cal.App.4th 657, 670.) Where a witness is undesirable (due to, for example, a record of felony convictions which could be used as impeachment, or other reasons), counsel cannot be faulted for not calling him or her to testify for the defense. (People v. Floyd (1970) 1 Cal.3d 694, 710 [overruled on a different point in People v. Wheeler (1978) 22 Cal.3d 258, 287].)
Defendant argues his trial attorney was incompetent for failing to investigate his mistaken identity defense and failing to present the testimony of two defense witnesses. Defendant’s girlfriend, Rhonda Mayfield (Mayfield) would have testified that defendant drove her, in a white truck, to a store parking lot, where she was let off at the entrance. When she came out of the store, defendant was in a green Camaro. She got into the Camaro with defendant they drove on the 215 freeway to the home of a friend, Shaun Henson, because Mayfield had to use the restroom. When she came out of the restroom, she discovered defendant had left. She denied being involved in a high speed chase. She has a felony record of a conviction for welfare fraud.
Shaun Hensen, a friend of defendant’s, testified he and defendant bought cars together at auctions to resell. On the day of defendant’s arrest, defendant and Mayfield came to his house in a Camaro, and defendant left on a motorcycle. A person named Thomas Clark got the Camaro from Hensen the next day. Hensen has been convicted of more than one felony in the past.
The theory that trial counsel incompetently failed to investigate and present the above evidence rested on the premise Birkes misidentified defendant, based in part on the fact that Birkes did not see a female passenger in the vehicle, although Detective Walker had seen her while conducting surveillance of the defendant in the parking lot where the car exchange occurred. It was also partly based on the fact that Birkes misdescribed the license number of the Camaro at the preliminary hearing. In other words, the dark green Camaro with the license number 3KDL732 that was pursued by Birkes when it entered the freeway in tandem with the white truck was not the same green Camaro with license number 3KDL732 in which Walker had seen defendant driving Mayfield out of the parking lot, and onto the freeway, just minutes earlier.
The attorney who brought the new trial motion argued there were two Camaros, but failed to produce evidence of a second identical Camaro, or show that the Camaro that was impounded had only one license plate. Yet defendant’s statement to the probation officer indicated the second Camaro was driven by a friend of his so this information should have been available to counsel. Detective Walker did not see a second green Camaro in the parking lot, did not see two green Camaros enter the freeway, and was not questioned about the possibility of a second green Camaro with the same license plate during the evidentiary hearing on the motion. There was only speculation to support this theory, and little probability it would have undermined the positive identification of defendant by Birkes as the driver of the green Camaro that was involved in the chase.
While there is much to criticize about trial counsel’s performance and his failure to prepare for trial, it was not an act of incompetence to fail to present this theory, especially where the strategy that was employed secured acquittal of the two more serious crimes. Aside from the taped conversation defendant had with Mayfield in which he referred to high speed chases, the probation report contains a statement by defendant which contradicts the proposed testimony of the two witnesses. Even if a new trial had been ordered, these inconsistent statements by the defendant would have been admissible in evidence, along with the impeachment of Mayfield and Hensen through the admission of their prior felony convictions, eliminating any likelihood of a more favorable result.
Defendant told the probation officer he went to the store parking lot to trade cars with his cousin, because his cousin wanted to borrow a truck. After the trade, defendant drove the Camaro directly to his friend’s house and parked; a short time later the officers came to the house, contacted him and threw him on the ground. He only found out later that there had been a high speed pursuit involving a friend of his that drove a similar style Camaro. Defendant did not mention Mayfield being with him or explain how the similar style Camaro happened to have the same license number.
B. The Sentence Must Be Modified.
Although not raised by defendant, the court imposed an unauthorized sentence when it stayed, rather than struck, the prison prior alleged pursuant to Penal Code section 667.5, subdivision (b).
Penal Code section 667.5, subdivision (b), provides, in part, that where the defendant is convicted of a felony, “in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; . . .” The use of the word “shall” means that imposition of the enhancements is mandatory once the prior prison terms are found true; a trial court may not stay the one-year enhancement (People v. Langston (2004) 33 Cal.4th 1237, 1241), although it does have the discretion to strike a prison prior enhancement. (Pen. Code, § 1385, subds. (a), (c)(1).) The court is required to state reasons for striking an enhancement under Penal Code section 1385. (Pen. Code, § 1385, subd. (a).)
The court did not have the authority to stay the sentence on the two prison priors; it could either impose and execute the one-year enhancement, or dismiss (strike) it. (People v. Campbell (1999) 76 Cal.App.4th 305, 311.) Failure to impose or strike the prison prior enhancement results in a legally unauthorized sentence subject to correction for the first time on appeal. (People v. Bradley (1998) 64 Cal.App.4th 386, 390-391.)
The court indicated it understood its discretion, but that it intended not to impose a consecutive one-year term for the enhancement, explaining that it was the court’s practice to not impose such an enhancement where the same prior conviction is also a strike. We therefore modify the sentence to strike the enhancement, and direct that the minutes and abstract of judgment be modified accordingly.
3. Disposition
The judgment is affirmed as modified.
We concur: Ramirez P. J., McKinster J.