P. v. Alvarez



P. v. Alvarez


Filed 7/30/08 P. v. Alvarez CA3


NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA


THIRD APPELLATE DISTRICT


(Sacramento)




THE PEOPLE,


Plaintiff and Respondent,


v.


JOSEPH WILLIAM ALVAREZ,


Defendant and Appellant.



C052061


(Super. Ct. Nos. 04F08153, 03F08932 & 01F04740)



Defendant Joseph William Alvarez fatally shot Damon Jacob. A jury convicted defendant of first degree murder and found that the killing was perpetrated by defendants shooting from a vehicle and that he intentionally discharged a firearm from a vehicle causing death. Based upon a separate incident not at issue in this appeal, the jury convicted him of evading a peace officer by means of a high-speed chase and possessing methamphetamine.


Defendant was sentenced to life without the possibility of parole for the murder, plus 25 years to life for the firearm enhancement. Concurrent terms of two years were imposed for the remaining two charges.


On appeal, defendant contends the trial court prejudicially erred when it denied his motion for a mistrial grounded on his claim of ineffective assistance of trial counsel. We shall affirm the judgment.


FACTS


In the early morning hours of June 21, 2004, defendant fatally shot Damon Jacob. Amanda Razick, Lanette Watson, and Moriah Charley testified regarding the circumstances of the shooting.


Razick testified that early on June 20, 2004, defendant and his girlfriend, Moriah Charley, came to Razicks residence where they all smoked marijuana. Defendant and Charley left around noon, but returned about 9:00 p.m. and smoked more marijuana as well as methamphetamine. Later that night, all three left in Charleys Cadillac, with defendant driving, Charley in the front passenger seat, and Razick in the back.


While defendant was driving on Highway 99, a Mercedes Benz drove alongside, and the driver-later identified as Damon Jacob-motioned for defendant to roll down his window. Defendant did so, and Jacob yelled, Can I holler at that bitch in the back, meaning he wanted to speak with Razick. Charley told defendant that she thought Jacob was the black dude with whom Charleys brother had a problem a week earlier. Razick stated she was not interested in talking to Jacob, but defendant said, Well, you can tell him that, and pulled off the freeway.


Defendant stopped at a side street, and the Mercedes Benz stopped behind him. As Jacob approached the Cadillac, Razick thought he might have said, Its all cool, right? Everythings all good. Jacob asked Razick some questions about her social life and whether she wanted his phone number. Thinking that getting Jacobs phone number would satisfy him, Razick leaned down to get her cell phone and heard a gunshot. When Razick sat up, she saw Jacob on the ground. During Razicks conversation with Jacob, the only item she saw him holding was a cell phone; she did not see him with a weapon, nor had there been any argument or yelling preceding the shooting.


Defendant immediately drove off and, at Razicks request, dropped her off at a motel.


Charley testified, confirming Razicks testimony concerning their smoking methamphetamine the night of the shooting. Charley adding that she and defendant smoked a lot of it and that they were both high. While all three were driving on Highway 99 in Charleys Cadillac, which she had just purchased from her brother about a month before, Jacob drove alongside them in his Mercedes Benz and indicated for them to pull over. Charley told defendant that she did not know Jacob, but that he looked like the dude who had a problem with her brother and who was driving a Mercedes Benz. Her brother had warned her to look out because . . . there aint no tellin what these Niggas goin do. Charley suggested they pull over and find out whether Jacob was the person about whom her brother had warned her.


After pulling off the freeway, Jacob got out of his Mercedes Benz and asked, Is it cool to come to the car? Someone said, Yeah, its cool, and Jacob then walked to the car. As he did so, he had his hands under his shirt in the area of his belt. Being suspicious that Jacob may have a gun, Charley closely watched Jacob as he approached the car and spoke with Razick. Although Charley did not see a gun, suddenly there was a flash and they drove off. Charley did not know until the next morning that Jacob was killed.


Lanette Watson testified that she was riding with Jacob, who was just a friend, when the Cadillac driven by defendant pulled alongside Jacobs Mercedes Benz. Jacob said that the female in the back of the Cadillac was nice looking and that he wanted to talk to her. Jacob indicated to defendant that he wanted to speak with Razick and followed defendant off of the freeway. Jacob got out of the car and asked, Am I safe gettin out of my car? He then walked to Razicks window. While Jacob was smiling and talking with Razick, he looked at Watson like, Oh, no. Watson saw that defendant had his arm extended and was holding a gun; defendant then shot Jacob in the head, killing him instantly. Defendant immediately drove back onto the freeway.


Investigation led to a warrant being issued for defendants arrest for the killing of Jacob. On September 29, 2004, following a high-speed chase that ended when defendant collided with another vehicle, defendant was arrested. During a police interview, defendant repeatedly told the investigator that he knew nothing about the shooting or a white Cadillac.


DISCUSSION


I


Following defendants convictions, he retained new counsel who filed a motion for a new trial based on a claim of ineffective assistance of trial counsel. The motion was denied.


Defendant contends the denial of the motion was prejudicial error, advancing the same arguments he did in the trial court. Specifically, he claims that trial counsel was ineffective because she failed (1) to retain an expert and to present a diminished actuality defense based on defendants being under the influence of methamphetamine at the time of the shooting, (2) to have defendant testify to his state of mind at the time of the shooting, and (3) to present available evidence of gunshot residue found on Jacobs hands. As we will explain, the claims lack merit.


To establish ineffective assistance of counsel under either the federal or state guarantee, a defendant must show that counsels representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsels deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsels failings, the result would have been more favorable to the defendant. (In re Resendiz (2001) 25 Cal.4th 230, 239.)


Defendants new trial motion was based upon defendants declaration; the declaration of Dr. Daniel W. Edwards, a licensed psychologist; and the testimony of defendants trial counsel.


Defendants declaration stated: For two months preceding the shooting, including the day of the shooting, he had been smoking approximately three and one-half grams of crystal meth per day; at times, such smoking made him disoriented, anxious, and nervous, and caused him to be unable to sleep for days, including 48 hours prior to the shooting; the methamphetamine caused him to see things that did not exist, including a dragon attacking him and people trying to break into his house, and to believe that people were out to kill him; and on the day of the shooting, he was all freaked-out and believed someone was going to kill him.


Defendant also asserted that his trial counsel had never discussed with him the difference between first and second degree murder, the difference between murder and manslaughter, or the concept of unreasonable self-defense, and that although counsel knew of defendants drug use, she never discussed diminished actuality as a possible defense.


Dr. Edwardss declaration stated that for a person ingesting methamphetamine in the quantity and frequency stated by defendant, it was reasonably possible he was suffering from delusional thought process, including, but not limited to bouts of paranoia; and that such delusional thought could affect [the persons] ability to form the intent to kill another while shooting a firearm.


Defendants trial counsel testified as follows: She had discussed trial tactics with defendant, including the degrees of murder and the concept of manslaughter. She had also discussed with him the pros and cons of his testifying and informed him the decision whether to testify was his right to make. It was defendant who made the decision not to testify. Counsel was aware that defendant had a methamphetamine problem, that he ingested methamphetamine the day of the shooting, and that he was probably feeling its effects at the time of the shooting. Within the last two years, counsel had done extensive research on the effects of methamphetamine-induced psychosis, including consultation with medical doctors. Although counsel never discussed psychosis with defendant, she believed they had discussed whether he suffered from episodes of paranoia. Counsel believed that she discussed a diminished actuality defense with defendant, but decided not to have him evaluated regarding methamphetamine-induced psychosis; instead she decided to rely on self-defense and defense of others.


II


Defendant argues that the evidence at trial regarding his extensive methamphetamine use, including his use the day of the shooting, coupled with his declaration and that of Dr. Edwards, shows a diminished actuality defense was available and defense counsel was ineffective for failing to present it, rather than self-defense. The record does not support the claim.


In a criminal trial, the question of which defense to use is a tactical one best left to trial counsel. (People v. Cunningham (2001) 25 Cal.4th 926, 1007; People v. Haskett (1982) 30 Cal.3d 841, 852-853.)


Here, trial counsel testified that after having discussed with defendant possible defenses, she determined as a tactical matter that self-defense was the best defense available. Although no witness testified to having actually seen Jacob with a weapon when he approached the Cadillac, Charley said she told defendant that both Jacob and the Mercedes Benz matched the description of a person with whom her brother recently had problems, and that her brother had warned her to be on the lookout for this man since she now owned her brothers Cadillac. Charley also testified at length about watching Jacob approach the Cadillac, moving side to side, and keeping his hands under his shirt on or near his belt. Charley continually watched Jacob because, based on his holding his waist and his body language, it appeared Jacob might have a strap (gun). When defendant told Jacob that Razick did not want to talk with him (she dont want to holler at you), Jacob was still comin [and] loud talkin even after he was asked to step off. It was at this time that defendant shot Jacob.


Charleys testimony, if believed by the jury, was sufficient to support self-defense and defense of others because it would have allowed jurors to infer that Jacobs aggressiveness and refusal to back off, his keeping his hands beneath his shirt near his belt, and his looking like the person Charley had been warned to watch out for because he was having problems with Charleys brother, led defendant to believe that Jacob was reaching for a gun to harm defendant and/or Charley. Thus, defense counsels tactical choice of self-defense and defense of others as the sole trial strategy was not unreasonable, and ineffective assistance of counsel has not been shown.


III


Defendant argues counsel was ineffective in pursuing the defense of self-defense or defense of others without having him testify that he was in fear of Jacob at the time he shot Jacob. Again, no ineffectiveness has been shown.


As the People point out, defendants testimony was not essential because Charley had provided an account of the incident that would support self-defense and defense of others. And defendant faced a substantial risk if he testified; he was subject to impeachment with his prior convictions and impeachment with his prior statements to officers.


Defense counsel stated that she discussed with defendant the pros and cons of his testifying, as well as potential defenses, and that after she explained to him it was his choice, defendant chose not testify. In his declaration, which was the only direct evidence presented by him in support of the new trial motion, defendant did not claim that counsel failed to advise him of his right to testify, and he did not state that he had wanted to testify or precisely what his state of mind was when he shot Jacob.


The trial court found it was defendants choice not to testify, observing that not only had counsel testified she told defendant of his right to testify, but the court itself had expressly reminded [defendant] of his right to testify. Because substantial evidence supports the courts finding in this regard, no ineffectiveness has been shown.


IV


Defendant claims trial counsel was ineffective because she failed, in support of self-defense, to present evidence contained in a laboratory report that gunshot residue (GSR) was on Jacobs hands. Defendant is wrong.


Like the choice of which defense to present, the choice of what evidence to present is a tactical choice within the discretion of counsel to make upon a showing of reasonable investigation. (In re Visciotti (1996) 14 Cal.4th 325, 348.)


The laboratory report stated that GSR was found on Jacobs hands, but not the hands of Lanette Watson or on the Mercedes Benz. The report stated: Gunshot residue particles are usually deposited on a subjects hands by firing a gun, being near a gun when it is fired, or handling a fired gun or fired ammunition. Counsel and the prosecutor had discussed admission of the test results.


Defendants argument in support of his ineffectiveness claim is as follows: The GSR evidence was disclosed by the prosecutor approximately a month before trial started. Thus, this evidence should have been reviewed, considered, and a criminalist or other qualified expert subpoenaed to present such at trial. [] Since defense counsel argued that this was a case of self-defense, it is inexplicable why [s]he did not call a witness to present this evidence. This oversight denied [defendant] presenting to the jury the only hard evidence which constituted some proof of his defense.


There is nothing inexplicable about counsels decision. Although counsel was never asked at the hearing why she decided not to introduce the reports test results, an obvious reason is that such evidence likely would have reinforced the prosecutions position, not defendants. This is so because no witness testified to there being two shots fired; no witness testified that Jacob had a gun; there was no GSR residue on Watsons hands; and there was no evidence of a gun being found in the vicinity of the shooting.


In light of this uncontradicted evidence, the most reasonable conclusion was that the gunshot residue on the victims hands was deposited there by his holding his hands in a defensive position when he saw defendant aiming the gun at him.


DISPOSITION


The judgment is affirmed.


SCOTLAND, P.J.


We concur:


SIMS , J.


MORRISON , J.


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