Opinion
C083916
11-30-2017
THE PEOPLE, Plaintiff and Respondent, v. JAMES WASHINGTON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F00282)
Defendant James Washington was convicted of kidnapping and corporal injury to a spouse. (People v. Washington (Aug. 31, 2016, C078617) [nonpub. opn.], *1.) The trial court sentenced him to 22 years in state prison. (Ibid.)
Defendant appealed, raising a single issue: The court failed to conduct a Marsden hearing. We reversed the judgment and remanded the matter for the limited purpose of holding a hearing on defendant's posttrial Marsden motion. (People v. Washington, supra, C078617, *7.)
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
We ordered that if defendant made a prima facie showing of ineffective assistance of counsel, new counsel was to be appointed for the purpose of bringing a new trial motion. If he failed to make a prima facie showing, the trial court was to reinstate the judgment with a modification to the sentence. (People v. Washington, supra, C078617, *7.)
On remand, the trial court found defendant failed to make a prima facie showing and denied his Marsden motion. The court reinstated the judgment and sentenced defendant to 22 years in state prison. Defendant now claims the trial court abused its discretion in finding he had no "colorable claim" that trial counsel was ineffective. We affirm the judgment.
I. BACKGROUND
In our prior opinion (People v. Washington, supra, C078617) we described defendant's request for new counsel after a jury found him guilty of kidnapping and domestic violence:
"Prior to sentencing, defendant asked the trial court for a continuance because he was considering moving for a new trial and wanted the reporter's transcript of the trial. The trial court refused to continue the matter 'for any significant period of time.' The court advised defendant, 'It was a short trial. I don't think that there were any issues, quite candidly.' The court nevertheless agreed to a brief continuance to allow defendant to discuss further with counsel 'whether any grounds exist[ed] . . . which one can obtain a new trial.'
"The following exchange then took place:
" 'THE DEFENDANT: If I was to file a motion for new trial under ineffective assistance of counsel, then would that be different? That's what I was going for as well so—
" 'THE COURT: In terms of ineffective assistance of counsel, your attorney, A, is an amazingly experienced attorney, who, B, didn't have a whole lot to work with, other than cross-examination of witnesses who in some instances were law enforcement, and addressed those issues appropriately. And in some instances, with civilian witnesses with absolutely no prior knowledge of you . . . . [¶]
" 'I'm not sure exactly what I anticipate an attorney should do with that sort of—faced with that sort of a factual scenario.
" 'But what are you asking me to do?
" 'THE DEFENDANT: If I can be appointed new counsel. And that's why I asked from [sic] the transcripts from the trial, as that way, my new counsel can go through and see and view them to view all the transcripts on ineffective assistance of counsel.
" 'THE COURT: I will tell you what I will do, I'm not going to appoint new counsel at this point. I don't think ineffective assistance of counsel is a road [sic] that is appropriately hoed based on my own observations during the trial.'
"The trial court went on to say defendant's trial counsel was 'an exceptional attorney,' who did 'an excellent job.' The court observed that counsel did the best he could with 'the hand that he was dealt.' The court then continued the matter to allow defendant to bring a motion for new trial.
"Following another short continuance, the trial court heard defendant's motion for a new trial based on newly discovered evidence. The trial court heard argument from counsel and reviewed witness statements obtained by defendant's counsel. The trial court found the evidence submitted was not new and denied defendant's motion. The issue of effective counsel was not raised. The trial court then sentenced defendant to an aggregate term of 22 years in state prison." (People v. Washington, supra, C078617, *1-4.)
On remand, the trial court asked defendant to explain the basis of his Marsden motion. Defendant said that before trial, trial counsel Chet Templeton presented him with only one offer from the People, an offer for 10 years. After trial, defendant claimed Mr. Templeton "apologized" and wished defendant had taken the offer for seven years, an offer defendant never received. Defendant acknowledged he would not have taken the offer for seven years because he was innocent. He also said Mr. Templeton advised him against taking the offer for 10 years because he could "beat the case."
Defendant also said he was found guilty by "an all white jury." He said the People "struck all the five black jurors, out of the veneer [sic] with the equivalent of peremptory challenges." Thus, he argued, Mr. Templeton should have filed a Batson/Wheeler motion.
Batson v. Kentucky (1986) 476 U.S. 79 ; People v. Wheeler (1978) 22 Cal.3d 258. --------
Defendant further claimed that "no witnesses were called on [his] behalf," but there were numerous witnesses who could have provided exculpatory testimony. He introduced notarized statements from the victim L.T. (defendant's wife), L.W. ("the 9-1-1 caller" and defendant's sister), J.T. (defendant's girlfriend and the victim's cousin), J.E. (with whom defendant shares a child), and A.P. (defendant's cousin). Defendant asked Mr. Templeton to call each of these women as witnesses at trial and Mr. Templeton did not. The court noted, however, that L.T. and L.W. were both called by the People and did testify at trial.
Defendant also presented a witness statement from a neighbor, J.P. The statement from J.P., defendant argued, was newly discovered evidence because defendant was unaware of his statement until after the trial. Defendant argued, there were even more witnesses that had exculpatory information that Mr. Templeton failed to locate because he did not push his investigators to do so.
In sum, defendant argued, the testimony of these witnesses would have undermined the People's case against him.
Defendant also found Mr. Templeton deficient because before trial began, defendant asked Mr. Templeton to file a "995 motion to set aside the information." Mr. Templeton did not file that motion.
The trial court then gave Mr. Templeton an opportunity to respond. Mr. Templeton admitted he lost defendant's case file but had reviewed the file before the prior hearing. Thus, he remembered the case "fairly well" and was "comfortable talking about it."
Mr. Templeton explained that it is his practice to convey all offers made by the People to his clients: "It's my belief, it's my practice, I always do." He remembered some clients who refused to hear offers, but he did not remember that happening here.
It also was Mr. Templeton's practice to meet with his clients to discuss potential defenses and witnesses. He remembered doing that with defendant. He also had an investigator working on the case. She interviewed L.T., J.T., and L.W. Mr. Templeton sent the investigator to the apartment complex where the crime occurred more than once and asked her to find potential witnesses. Mr. Templeton recalled defendant being "adamant" there were people who witnessed the incident; people who had exculpatory information. The investigator told Mr. Templeton she could not find anybody who knew anything or anybody that was willing to talk to her.
With regard to J.T., Mr. Templeton had her statement before trial and chose not to call her as a witness. In his estimation, J.T. was not "the most presentable witness." J.T. would corroborate the victim's trial testimony, but because the victim was going to take the stand and recant her claim of abuse—he chose not to call J.T.
Mr. Templeton attempted to reach J.E. and A.P. but defendant did not have good contact information for them. The victim also tried to help Mr. Templeton reach these witnesses, to no avail. Mr. Templeton believed defendant when he said these would be good witnesses, but after months of looking, Mr. Templeton simply could not locate them.
After defendant's trial concluded, Mr. Templeton received statements from these witnesses. Believing the statements may help defendant's case, he presented them to the court as an offer of proof and asked for a continuance on the sentencing hearing so defendant could consider filing a motion for a new trial. The court granted the continuance and defendant moved for a new trial. (People v. Washington, supra, C078617, *3.)
Mr. Templeton did not remember specifically whether defendant asked him to file a Code of Civil Procedure, section 995 motion (section 995 motion). It was his general practice, however, to consider his clients' requests for motions to be filed, evaluate the requested motion on the merits, and decide whether, in his judgment, there was a basis for filing the motion. He did not file a section 995 motion here. Thus, assuming defendant had asked him to file the motion, he would have reviewed the transcript and determined a section 995 motion was not warranted.
Mr. Templeton also did not recall "that all five black jurors in the pool were excused." And he did not remember defendant asking him to file a Batson/Wheeler motion. He has made such motions before and, he represented to the court, he would have made the motion had he felt it was warranted.
The court addressed each of defendant's claims. First, the court found Mr. Templeton's decision not to file a 995 motion was a decision appropriately made by counsel and did not support a finding that defendant received ineffective assistance of counsel. The court also believed Mr. Templeton when he said, had defendant asked for the motion, he would have reviewed the transcript and determined a section 995 motion was meritless. That a jury later found defendant guilty, the court noted, ultimately rendered the issue of a section 995 motion "moot."
Next, the court noted that during jury selection, the People exercised only two peremptory challenges. The court further observed that jury selection took only 17 minutes and only nine jurors total, from the initial 60 called into the courtroom, were excused, including six excused by Mr. Templeton. Accordingly, defendant's claim that the People used five peremptory challenges to excuse all black jurors from the jury pool was not supported by the court's notes and a Batson/Wheeler motion would have been frivolous.
The court was not persuaded by defendant's claim that Mr. Templeton failed either to adequately investigate the case, or failed to call known witnesses that were helpful to defendant. The court found Mr. Templeton did "the types of things one would expect to be done," including sending out an investigator to find witnesses and obtain statements. The court also found it compelling that the victim herself testified, recanted her initial report of abuse, and essentially testified on defendant's behalf.
In addition, the court explained that it granted several motions by the defense to allow evidence in at trial that would further call into question the victim's initial report of abuse to the police. Defendant also testified and was able to report his version of events to the jury. And, while L.W. was not called by Mr. Templeton, she did testify and was subject to questioning by Mr. Templeton.
The problem with defendant's case, as the court explained, was not the lack of witnesses testifying on defendant's behalf, it was the testimony of two particular witnesses: a helicopter pilot and a "civilian" who had "no skin in this game." These witnesses saw defendant assault the victim and testified accordingly.
Finally, the court rejected defendant's claim that Mr. Templeton failed to convey to defendant an offer from the People. The court found defendant's claim was simply not credible. The court believed Mr. Templeton when he said it was his practice to convey all offers to his clients, and he conveyed all the offers made to defendant here.
The court ultimately found there was "no basis for ineffective assistance of counsel." In other words, defendant was "adequately and properly represented." Accordingly, the trial court denied defendant's Marsden motion and reinstated his sentence.
II. DISCUSSION
In accordance with our instructions, defendant was given the opportunity to explain fully the basis for his motion to substitute counsel. (People v. Smith (1993) 6 Cal.4th 684, 690.) The question thus is whether defendant presented a colorable claim of ineffective assistance of counsel, entitling him to a new appointed counsel to make a new trial motion. (People v. Ivans (1992) 2 Cal.App.4th 1654, 1667.)
We review the trial court's decision with regard to substitution of counsel for abuse of discretion. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1003.) " 'The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel.' " (Ibid.)
When defendant raises a claim of ineffectiveness of counsel, he must show that either: " '(1) As a result of counsel's performance, the prosecution's 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) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and there is a reasonable probability that, but for counsel's unprofessional errors and/or omissions, the trial would have resulted in a more favorable outcome.' " (In re Cudjo (1999) 20 Cal.4th 673, 687.)
In reviewing counsel's performance, we are required to "give great deference to counsel's tactical decisions." (People v. Holt (1997) 15 Cal.4th 619, 703.) The selection of which evidence to present ordinarily is a tactical decision which is left to trial counsel. (People v. Jones (1981) 123 Cal.App.3d 83, 92; People v. Haylock (1980) 113 Cal.App.3d 146, 151.) In the absence of a showing as to how an alternate decision would have resulted in a different outcome, we will not reverse based on such a decision. (In re Avena (1996) 12 Cal.4th 694, 721.)
Mr. Templeton was not required to call every witness defendant asked him to call. Mr. Templeton had a victim who recanted her initial report of abuse, additional evidence about the victim that cast doubt on her initial report of abuse, and the defendant himself testifying. The one witness he located, he chose not to call to testify because, in his estimation, she did not present well and he believed defendant's case was strong enough without her. His selection of which witnesses to present was a tactical decision to which we defer. (People v. Holt, supra, 15 Cal.4th at p. 703; People v. Jones, supra, 123 Cal.App.3d at p. 92.)
Defendant also failed to establish a basis for finding Mr. Templeton failed to investigate potential witnesses or defenses in the manner required of a reasonably competent, diligent attorney. Mr. Templeton hired a private investigator to locate any and all witnesses at the scene of the crime. He sent that investigator to the scene on more than one occasion. He did not discount any of the leads defendant gave him, and spent months trying to contact potential witnesses. Notably, once Mr. Templeton had statements from these witnesses, he presented them to the trial court and asked for a continuance so defendant could consider moving for a new trial. The court granted the continuance and defendant moved for a new trial. (People v. Washington, supra, C078617, *3.)
In addition, the trial court accepted Mr. Templeton's statement that he did not file a section 995 motion nor did he file a Batson/Wheeler motion because the motions were not warranted. And the trial court rejected defendant's claim that Mr. Templeton failed to convey an offer from the People. The trial court concluded this claim was not credible. We defer to the trial court's credibility determinations. (People v. Ochoa (1993) 6 Cal.4th 1199, 1207; People v. Ceja (1993) 4 Cal.4th 1134, 1139.) Moreover, as noted by the trial court, Mr. Templeton's decision not to file a Batson/Wheeler motion was substantiated by the court's own notes related to jury selection, and the ultimate lack of merit in any section 995 motion was demonstrated by the jury's guilty verdict.
In sum, defendant failed to present a colorable claim of ineffective assistance of counsel. (In re Cudjo, supra, 20 Cal.4th at p. 687.) The trial court therefore did not abuse its discretion in denying his motion for new appointed counsel to make a new trial motion. (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1003; People v. Ivans, supra, 2 Cal.App.4th at p. 1667.)
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
HULL, Acting P. J. /S/_________
DUARTE, J.