P. v. Abadir
Filed 12/5/13 P. v. Abadir CA4/2
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
CHRISTIAN SAMIR
ABADIR,
Defendant and Appellant.
E052989
(Super.Ct.No.
RIF143161)
OPINION
APPEAL
from the Superior Court of
County. Paul M. Bryant,
Jr., Judge. (Retired judge of the San
Bernardino Super. Ct., assigned by the Chief
Justice pursuant to art. VI, § 6, of the Cal. Const.) Affirmed with directions.
Helios
J. Hernandez, III; Mark D. Johnson, under appointment by the Court of Appeal;
and Christopher R. Wagner, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Vincent Lapietra, and
Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant Christian Samir Abadir hired two men to burn down his house. He then filed claims against his homeowner’s
insurance policy for the losses.
Defendant was charged with arson and related crimes.
jury was unable to reach a verdict on the charges, although the majority voted
in favor of guilt. Defendant did not
testify at his second trial and the jury convicted him.
The trial court denied defendant’s motion
for a new trial, which was based on ineffective assistance of counsel and
other grounds. The trial court sentenced
defendant to prison for eight years.
On appeal, defendant contends the trial court erred in denying his new
trial motion because his trial counsel was ineffective when he discouraged defendant
from testifying at his second trial, as well as when he failed to communicate
with him, to investigate the case, and to move for a mistrial based on jury tampering. We conclude the trial court properly
exercised its discretion in denying the new trial motion because defendant failed
to establish that trial counsel’s performance was deficient or that any
prejudice resulted from the alleged deficiencies. In addition, defendant forfeited any new
issue not raised below in the new trial motion.
The trial court neither imposed nor struck the section 451.1, subdivision
(a)(5), enhancement. Accordingly, the
case should be remanded for the limited purpose of allowing the court an
opportunity to exercise its discretion in this regard. Otherwise, we affirm the judgment.
II
THE TRIAL AND POSTTRIAL MOTION
The prosecution’s theory of the case
was defendant was struggling financially and planned the arson of his residence
in order to claim the insurance money.
Around 2:30 a.m. on March 31, 2008, firefighters responded to
a call regarding a fire at defendant’s two-story residence in Temecula. After the fire was extinguished, officials
found one Bic-style lighter on the entryway adjacent to the front door, another
lighter in the kitchen and dining room area, and an empty gasoline can in the
garage.
Defendant was with his wife, Karine, at a hotel in Coronado. Defendant’s neighbor and the fire chief
talked to defendant on his cell phone.
Defendant said he could not come back immediately because he had been
drinking.
Karine testified at trial as part of a plea agreement, providing that she
would be permitted to plead guilty to insurance fraud and would be granted
probation. Karine admitted that she and
defendant were struggling financially and were using prescription drugs and
cocaine. Defendant proposed to torch the
house to solve their financial problems.
They performed an inventory of their possessions for insurance purposes
and they put irreplaceable items in storage.
Karine said that defendant paid Nicholas Hernandez and Clifford Gandy,
two employees of his home loan processing company, about $5,000 to set the fire. Gandy was supposed to use gasoline to start
the fire and Hernandez would pick him up afterward. Defendant placed two containers of gasoline
in the laundry room. Gandy was supposed
to set fire to the house after defendant and Karine left for Coronado.
On the day of the fire, defendant picked
up Gandy and brought him to the house. Karine
and defendant took clothing, toiletries, their dogs, defendant’s diploma,
financial records, and a painting of a dog to Coronado with them. They also took both their cars, a Mercedes
and a Lexus. On the way to Coronado,
they stopped at Hernandez’s house and gave Hernandez a walkie-talkie to
communicate with Gandy. Early the next
morning, Gandy, Hernandez and Hernandez’s girlfriend arrived at defendant and
Karine’s hotel room and Gandy told them, “it was done.â€
Consistent with Karine's testimony, two neighbors testified that, before
the fire, they saw defendant loading items into a U-haul truck that was parked
in front of his house. In the rented
storage unit, officials found a photograph album that contained photographs of defendant
and Karine; Karine’s baby book; a note pad with a handwritten inventory of clothing;
and a note pad containing an inventory of CDs, DVDs, and home appliances with
serial numbers.
After the fire, the insurance company paid an advance of $20,000 which
Karine used to pay bills and go shopping at Macy’s.
Hernandez claimed that Karine, not defendant, had approached him about
burning the house. Hernandez testified that defendant asked him to pick up Gandy
and bring some money to Coronado. Hernandez
picked up Gandy at a location about two blocks away from defendant’s house. He then drove his girlfriend and Gandy to Coronado. Hernandez denied committing burglary and insurance
fraud although he pleaded guilty to those crimes.
Gandy confirmed that he, Hernandez, and Hernandez’s girlfriend drove to
Coronado. Gandy denied involvement in
the arson but pleaded guilty to burglary and signed a plea agreement, stating: “I entered [defendant’s house] with the intent
to burn the structure. I knew this house
belonged to [defendant]. He gave me
permission to enter this dwelling house for the purposes of committing an arson.
He told me he would file an insurance
claim for the loss.â€
In an interview a week after the fire, defendant told the arson
investigator that he and Karine had gone to Coronado to celebrate their wedding
anniversary. Defendant learned about the
fire during a telephone call from his alarm company around 2:15 a.m. After Karine became hysterical, defendant called
Hernandez and his girlfriend to come to the hotel to comfort Karine. Defendant tried to drive home that night but
he decided to remain in Coronado after he fell asleep at a stop sign.
In the Temecula hotel room where defendant and Karine were staying after
they returned from Coronado, officials found a painting of a dog, defendant’s college
diploma, and large amounts of men and women’s clothing. When officials interviewed Karine in the
hotel conference room, Karine refused to speak with defendant. Meanwhile, defendant was in the hotel lobby, cussing
and yelling at the front desk clerks because he was not allowed to talk to his
wife. Defendant eventually exited the lobby
and ran outside the hotel to bang on the conference room window, yelling, “Karine,
I need to talk to you.†The fire chief warned
defendant to stop but defendant persisted and the fire chief arrested him for
obstruction.
The arson investigator determined there were 12 separate fires in
defendant’s house. After ruling out
electrical and other potential causes, the arson expert opined the “fires were
arson-caused through the use of ignitable liquids and ignitable liquid
trailers.†The arson investigator
explained that gasoline was poured at the 12 different origin sites which were connected
with a trail of gasoline. Once the fire
was started, the gasoline acted “like a fuse on a firecracker,†carrying the
fire to different flare-up points. The
parties stipulated that all samples obtained from defendant’s home tested
positive for the presence of gasoline.
The arson investigator searched Gandy and Hernandez’s residence in Murietta
and found $3,540 in the trunk of defendant’s Mercedes–parked in the garage–more
money in Hernandez’s bedroom, and some of the DVD’s that Karine had described. When Gandy and Hernandez were in the back of a
patrol car together after the search, Gandy said, “I wonder if [defendant] gave
up our names to save his ass[.]†Hernandez
responded, “We should just give him up.â€
Case
Defendant’s counsel, C. Reginald Taylor, cross-examined Karine at
length. Defendant did not testify and
Taylor did not introduce evidence.
Instead, Taylor argued that it was implausible that Gandy could have set
the fire and that Gandy had denied he had done so, as well as not recalling the
details of his plea agreement. Gandy had
a prior strike and risked receiving a six-year sentence instead of a two-year
sentence. Taylor challenged Karine’s
credibility because she had received a nine-month sentence and she could not
remember details about the couple’s finances.
During cross-examination, Hernandez denied his crimes and claimed he was
pressured to take a plea agreement for
20 months.
Motion and Ruling
After trial, defendant’s new counsel filed a
was ineffective in failing to: (1) call
witnesses, including defendant; (2) investigate the case; (3) provide zealous
representation; and (4) communicate with defendant.
The court heard Taylor’s testimony about representing defendant at both
trials.
Before the first trial, Taylor explained to defendant that he had a constitutional
right to testify and he did not have to do so but that it was in defendant’s
best interest to testify so the jury could hear his side of the story rather
than only Karine’s. Defendant had a minimal
criminal history. He had not confessed
to the police and his statements to the insurance investigator and Cal Fire
were consistent with what defendant told Taylor. Taylor warned defendant against testifying in
the style of O.J. Simpson because the jury would react unfavorably.
In the first trial, defendant
testified on his own behalf about the state of his finances and Taylor
cross-examined Karine on the subject. Taylor
also presented evidence about defendant’s home alarm system.
The first jury voted 10 to two in favor of guilt on the arson and insurance
fraud charges and 11 to one in favor of guilt on the obstruction charge. In posttrial interviews the jurors described
Karine as “America’s sweetheart, little young, blond-haired, blue-eyed girl and
here’s this guy, who comes in and corrupts this poor girl.†The jurors thought defendant “was obnoxious; they
thought he was kind of smarting off to the District Attorney.†The jurors did not like defendant or find him
credible. Taylor summarized: “Suffice it to say, the jury’s impression of
him was not positive at all. And it--in
my opinion, it was detrimental in our first trial. The jurors’ impression was very detrimental.â€
Taylor further testified that he met with defendant at least two or three
times for a total of a couple of hours before the first trial. Between the first and second trial, Taylor met
with defendant in his office. The two
spoke several times at court appearances.
In several conversations, defendant was indecisive about whether he
should testify at the second trial.
Taylor advised him to wait and see how the second trial unfolded. Taylor’s investigator also talked to defendant
and tried to contact some witnesses from the insurance company. The investigator did not talk to defendant’s
parents. Taylor asked for continuances
so defendant could retain other counsel but defendant did not want to waive
time and he did not ask to replace Taylor.
Defendant never criticized Taylor’s representation.
Taylor did not call any witnesses at the second trial. Taylor did not call defendants’ parents or
proposed character witnesses to testify because they did not possess probative
information. Taylor did not present any
financial documents during either trial and did not introduce any other documents
during the second trial. Defendant sent
Taylor his bank records after the first trial and Taylor used the bank records
to cross-examine Karine. Karine did not appear
credible because she could not remember anything about finances, including simple questions about whether they had money
in the bank.
During a recess after the prosecution’s case-in-chief, Taylor reiterated to
defendant his concerns from the first trial about defendant being a poor
witness who volunteered unnecessary information, argued with the prosecutor
during cross-examination, and antagonized the jury. Taylor never instructed defendant not to
testify during the second trial and defendant never asked to testify.
Testimony
Defendant contradicted Taylor on several points. Defendant testified that he never met with
Taylor outside of court before he testified at the first trial. He had only spoken with Taylor for about 20
to 30 minutes when Taylor made two or three court appearances on defendant’s
behalf and he talked with Taylor during the first trial.
Defendant asserted the first jury voted 11 to one in favor of guilt on the
obstruction charge and nine to three in favor of guilt on the felony counts. Taylor talked with him for about two hours
after the first trial, telling him the jurors thought he had acted like a “smart
ass, maybe being arrogant . . . .†Taylor
also told defendant that he wanted to conduct “extensive investigations†before
the second trial.
Defendant tried to meet with Taylor several times again before the second
trial but Taylor never responded to email, hand-delivered notes, cell phone
calls, and messages delivered by third parties. Taylor never contacted defendant’s list of potential
witnesses, including character witnesses. Defendant also could not meet with the defense
investigator without Taylor’s approval.
Defendant asserted that his bank statements showed an average deposit of $14,500
per month in his business account, more than what he had estimated during the
first trial. These documents were not
introduced into evidence at trial or at the hearing on the new trial motion. Defendant estimated his monthly expenditures
were about $13,000 or $14,000 a month.
Defendant claimed he paid his bills on time: “The few bills that were presented, when it
was stated that some of the utilities had been cutoff or at times were in
default were incorrect.†Defendant also
claimed his credit cards were paid in full before the fire. Defendant admitted he was behind on his
property taxes but he had not paid because he was angry about a $500 late
charge when his payment was less than eight hours late.
During the second trial, Taylor asked for a recess after the prosecution
rested, took defendant into a corridor, and told him, “‘I’m against putting you
on the stand.’†“‘I do not want you to
pull an O.J.’†Defendant protested that
he could refute the evidence. Defendant asked
Taylor to introduce his bank accounts to show that he was “not financially
hurt.†Defendant reminded Taylor of his
advice during the first trial that it was “‘imperative’†that he testify because
it was Karine’s word against his. Taylor
told defendant Karine’s testimony was weak during the second trial. The two argued about the relative credibility
of Karine and defendant. Defendant nonetheless
told him, “‘I want to testify.’†Taylor
replied, “‘We don't have time to discuss this any further. Let me drive.’â€
Defendant was not happy with Taylor’s representation at the first trial
but he “was indigent.†He never objected
during the second trial because he “wasn’t aware that [he] had that right.†During the second trial, he repeatedly
complained about the quality of Taylor’s representation but they also joked
around and had an amicable relationship.
Testimony
The prosecutor testified that many exhibits showing the termination of defendant’s
credit by banks and credit companies were disclosed to the defense and
presented as exhibits at both trials. The
prosecutor also identified at least 18 specific and major inconsistencies in defendant’s
testimony in the first trial which he intended to use in cross-examining
defendant.
After listening to argument, the court stated that it did not find defendant
credible and that it appeared defendant was happy with Taylor’s representation until
he received an adverse result. The court
concluded, “I do not believe that Mr. Taylor’s representation fell below the
requisite standard, and I’ve seen no evidence put before me that would cause me
to believe that.†Accordingly, the court
denied the motion.
III
INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant urges the trial court abused its discretion in denying his new
trial motion based on ineffective assistance of counsel (IAC) because his
counsel discouraged him from testifying and failed to communicate with him, to
investigate the case, and to move for a mistrial based on jury tampering. We conclude defendant failed to establish
that counsel’s performance was deficient or prejudicial and that defendant forfeited
the remaining claims, which also lack merit.
A. Legal Principles
A trial court has broad discretion in ruling on a new trial motion: “‘“The determination of a motion for a new
trial rests so completely within the court’s discretion that its action will
not be disturbed unless a manifest and unmistakable abuse of discretion clearly
appears.â€â€™ [Citation.]†(People
v. Davis (1995) 10 Cal.4th 463, 524.)
If defendant contends he received IAC at trial, “[t]he trial judge is the
one best situated to determine the competency of defendant’s trial counsel. Where, as here, defendant is represented by
different counsel at the motion for a new trial and the issue is called to the
trial court’s attention, the trial judge’s decision is especially entitled to
great weight and [a reviewing court must] defer to his fact finding power.†(People
v. Wallin (1981) 124 Cal.App.3d 479, 483; People v. Fosselman (1983)
33 Cal.3d 572, 582.)
For similar reasons, the standard for reviewing counsel’s performance is also
deferential. (People v. Holt (1997) 15 Cal.4th 619, 703.) “Unlike a later reviewing court, the attorney
observed the relevant proceedings, knew of materials outside the record, and
interacted with the client, with opposing counsel, and with the judge.†(Harrington
v. Richter (2011) 562 U.S. __, __ [131 S.Ct. 770, 788] (Harrington).) The question is whether an attorney’s
representation amounted to incompetence under “‘prevailing professional norms.’â€
(Id.
at p. 788.)
In considering a claim that trial counsel provided ineffective
assistance, a reviewing court “presume[s] that counsel rendered adequate
assistance and exercised reasonable professional judgment in making significant
trial decisions.†(People v. Holt, supra, 15
Cal.4th at p. 703, citing Strickland v. Washington (1984) 466 U.S. 668,
690 [104 S.Ct. 2052, 80 L.Ed.2d 674].) Consequently, a
defendant bears the burden of establishing: “‘(1) that counsel’s performance fell below an
objective standard of reasonableness; and
(2) that there is a reasonable probability that, but for counsel’s
unprofessional errors, a determination more favorable to defendant would have
resulted.’†(Holt, at p. 703.)
Counsel’s errors must be so serious as to deprive the defendant of a
fair trial. (Harrington, supra, 131 S.Ct. at p. 703; Strickland, at
p. 687.) A claim of IAC may be resolved based
on lack of prejudice alone. (Strickland, at p. 697; In
re Alvernaz (1992) 2 Cal.4th 924, 945.)
Defendant did not come close to surmounting Strickland’s high bar
in this case. (Harrington, at p. 703.)
B. Taylor’s Advice About Testifying
Taylor testified that he never told defendant that he could not testify
or that he did not want him to testify.
The trial court expressly found defendant’s contrary testimony was not
credible. Because substantial evidence
supports the trial court’s credibility determination, this court must accept
it. (People v. Callahan (2004)
124 Cal.App.4th 198, 235-236.) The
record also supports that Taylor properly advised defendant about not
testifying in the second trial. Taylor
candidly warned defendant that he had been a poor witness and the jury had not
liked him or believed him. Taylor also
told defendant that, although he did not think Karine was as strong a witness
during the second trial, the jury would be comparing the two and defendant
might not fare well in comparison.
Furthermore, the prosecution was threatening to expose the
inconsistencies in defendant’s statements and testimony. In view of the foregoing, counsel was not
ineffective in advising defendant to wait until after the prosecution’s
case-in-chief to make a definitive decision about whether he wanted to testify.
In People v. Andrade (2000) 79
Cal.App.4th 651 and People v. Callahan, supra, 124 Cal.App.4th
198, appellate courts did not find an abuse of discretion in granting new
trials based on counsel’s ineffective advice to the defendants not to testify. (Andrade,
at pp. 660-661; Callahan, at p. 214.) In Andrade, the court observed the defendant
had no substantial criminal history, would not have been subject to substantial
impeachment, and was the only person who could provide an explanation for his
presence at two different homes. Without
the defendant’s testimony, the jury had no alternative but to accept the
prosecution’s theory that the defendant entered the homes to commit rape. (Andrade,
at pp. 660-661.) In Callahan,
the appellate court noted the trial court found the defendant’s testimony
at the hearing on the new trial motion was more favorable than the piecemeal
presentation of her pretrial statements to the police. The appellate court also noted the trial court
had the opportunity to view the defendant’s demeanor on the stand and had
concluded that the defendant’s testimony “would have placed her in a better
light†than her tape recorded statements that were played for the jury. (Callahan,
at p. 214.) The appellate
court concluded that, the trial court implicitly found that the defendant would
make a good appearance on the stand. (Ibid.)
The trial court here, unlike the courts in Andrade and Callahan,
did not find defendant to be credible. Additionally,
Taylor observed defendant’s poor performance in the first trial and the jury’s
response to him. The prosecutor also
planned to impeach defendant based on his inconsistencies and drug use. Finally, the jury heard defendant’s statements
about the fire during the arson investigator’s testimony. Taylor argued, based on Karine’s testimony on
cross-examination, that defendant and his wife were not struggling financially
at the time of the fire. Andrade and
Callahan do not support defendant’s argument that the trial court abused
its discretion in denying defendant’s new trial motion based on Taylor’s advice
about whether he should testify.
Defendant also argues Taylor should
have presented another witness but defendant has not identified another witness
or what testimony another witness would have provided. (People
v. Beasley (2003) 105 Cal.App.4th 1078, 1093.) Finally, defendant’s claim fails because there
is no reasonable probability that he would have received a more favorable
result had he testified in his own defense based on his performance as a
witness, the numerous inconsistencies, and the overwhelming evidence of
defendant’s guilt as detailed comprehensively above. Accordingly, defendant has failed to establish
he was prejudiced by Taylor’s advice about testifying at the second trial.
Communications with Defendant and Investigation
Taylor testified he met with defendant before the first trial for about
two hours in total. Between the first
and second trial, they met in Taylor’s office and spoke in court. The trial court found defendant was not credible. Defendant has not shown that his communication
with Taylor was constitutionally deficient or that he was prejudiced by the
lack of additional communication. (United States v. Rogers (9th
Cir. 1985) 769 F.2d 1418, 1425) [no ineffectiveness without a showing of what
deficient consultation missed].)
Defense counsel has a duty to make a reasonable investigation or to make
a reasonable decision that a particular investigation was unnecessary. (Strickland
v. Washington, supra, 466 U.S. at pp. 690-691; In re Andrews (2002)
28 Cal.4th 1234, 1254.) A reviewing
court considers the objective reasonableness of the decision in light of all
the circumstances, under the prevailing norms. (Wiggins
v. Smith (2003) 539 U.S. 510, 521-523.) The court applies “a ‘heavy measure of deference
to counsel’s judgments.’†(Rompilla v. Beard (2005) 545
U.S. 374, 381.) The court considers the
known evidence and also whether the known evidence would lead a reasonable
attorney to investigate further. (Wiggins, at p. 527.)
Defendant complains Taylor had only “sparse†communication with him and
directed his investigator to interview only defendant. The record shows that Taylor communicated
sufficiently with defendant and that the investigator also attempted to contact
some witnesses from the insurance company.
Taylor considered and rejected using defendant’s parents and his
proposed character witnesses. Defendant
did not identify any additional witnesses or their proposed testimony. Accordingly, his claim fails. (People
v. Beasley, supra, 105 Cal.App.4th at p. 1093.)
Defendant also asserts that, if Taylor had interviewed his parents he would
have learned that they provided defendant with financial support, showing he
was financially stable. “Whether to call
certain witnesses is . . . a matter of trial tactics, unless the decision
results from unreasonable failure to investigate.†(People v. Bolin (1998) 18 Cal.4th 297, 334.) As noted, however, Taylor decided not to call
the parents as witnesses, although he knew they provided financial support,
because the parents did not have any probative information about what happened. Taylor’s decision not to call the parents was
a reasonable trial tactic and, for the reasons discussed earlier, no prejudice
ensued.
Defendant also faults Taylor for failing to investigate and present evidence
showing that he had no financial motive to commit arson, in particular, that defendant
had deposited more than $115,000 into his business account over an eight-month
period.
title="">[6] Taylor did not introduce the bank statements
but he used them to elicit testimony from Karine that she could not remember
any details about their finances, including whether they were behind on any
bills around the time of the fire, whether the business had profits or losses,
and whether the balances in their checking, savings and business accounts were
positive or negative. Karine finally believed
they were only a couple of weeks behind in their mortgage payment and had not
had any utilities shut off for nonpayment. Taylor then argued during closing that Karine’s
testimony that she and defendant were not struggling financially was not credible.
Taylor’s decision to rely on the weaknesses in Karine’s testimony rather
than present the bank statements was a reasonable tactical choice. Furthermore, in support of his new trial
motion, defendant testified that he was operating on a very small financial
margin, apparently spending most if not all he earned. Given the overwhelming evidence of guilt, it
is not reasonably probable that defendant would have received a more favorable
result if the bank records were introduced at the second trial or had been
presented in the new trial motion, even if the court mused they might have been
relevant. The records should not be made
the subject of a writ petition because they do not constitute newly-discovered
evidence.
Defendant also challenges Taylor for
not discovering a video showing entry to and from the storage unit and failing
to investigate the truth of Karine’s statement to the fire chief that defendant
purchased “fire implements†from the Wal-Mart and 7-Eleven in Temecula. Defendant claims an investigator for
defendant’s parents found a Walmart receipt for March 30, 2008, indicating that
a credit card in Karine Abadir’s name was used to purchase Zippo fuel and
lighters. A Zippo lighter was found at
the scene and entered into evidence.
First, defendant’s argument is not based on evidence in the record, it was
not raised in the new trial motion, and has been waived. (People
v. Verdugo (2010)
50 Cal.4th 263, 309.) This claim of
error is also not cognizable on appeal because it relies on
evidence outside
the record, a purported investigation that occurred more than six months after
the court denied the new trial motion. (People v. Williams (1988) 44 Cal.3d 883, 917, fn. 12.) Next, Karine may have purchased Zippo fuel
and lighters even if defendant purchased the “fire implements.†Third, the assertion that videotapes of the storage
unit would have helped the defense is entirely speculative. Finally, defendant did not tell Taylor that
he did not buy any lighters or enter the storage facility. Counsel is “entitled to formulate a strategy
that [is] reasonable at the time and to balance limited resources in accord
with effective trial tactics and strategies.†(Harrington,
supra, 131 S.Ct. at p. 789.) Finally,
in light of the overwhelming evidence of defendant’s guilt, it is not
reasonably probable he would have received a more favorable result if such
evidence had been uncovered and presented at trial.
Taylor
By failing to raise them in his motion
for new trial, defendant has forfeited other claims, such as Taylor not
arguing that an arsonist broke into defendant’s house based on the evidence
that (1) window glass was found inside the downstairs home office, and (2) the neighbor’s
wife heard a big bang about 30 minutes before the fire. (People
v. Verdugo, supra, 50
Ca1.4th at p. 309.) In any event, the
arson investigator opined the downstairs window broke during the fire. As to the neighbor’s wife, the neighbor
testified that he and his wife both awoke to a popping sound and, when he
looked out the window, he saw flames coming from the house. Additionally, Gandy pled guilty to entering
defendant’s house with the intent to commit arson, and the evidence of defendant’s
guilt was overwhelming.
Taylor argued the unreasonableness of the People’s theory that Gandy
remained motionless in the house from 7:00 p.m. until 2:00 a.m. the next day,
when the motion detector alarm went off inside the house, and pointed out that
the arson investigator’s investigation of the area around the broken window was
inadequate. In view of these
circumstances, Taylor was not deficient in failing to argue that the arsonist
broke into the house and defendant was not prejudiced by the absence of such an
argument.
Finally, on the issue of whether Taylor should have obtained full transcripts
from the first trial, Taylor testified that defendant did not want to waive
time. Defendant has not established any
prejudice on this point.
Defendant’s claim of “prosecutorial jury tampering†was also
forfeited. (People v. Verdugo,
supra, 50 Cal.4th at p. 309.) In any
event, the record contradicts his claim.
After a recess, the court announced outside of the jury’s presence that a
victim witness advocate from the district attorney’s office had overheard
comments by one of the jurors. The advocate
then testified that, when she was out in the hallway, she saw Juror No. 10
point at his head and state, “What is it with D.A.s? . . . Do
they have a hole drilled in their head?â€
A female juror replied it could be a frontal lobotomy. Juror No. 10 said, “No.†The victim advocate did not know whether the
jurors were talking about the prosecutor conducting examination or the
prosecutor testifying as a witness.
The court referred to the advocate as a “spy†but then clarified there
was nothing wrong with her assisting Hernandez when he testified. Juror No. 10 explained that he had made his
remark after he noticed both prosecutors had indentations in their foreheads,
causing him to wonder if it was a job requirement. Juror No. 10 said his remark was a poor
attempt at humor and he denied that had he formed any opinion about the case. The court admonished Juror No. 10 not to
discuss the case and not to mention their conversation to the other jurors. The parties and the court agreed the juror
did not need to be excused.
Juror No. 10’s comment may have been ill-advised but it was innocuous and
did not indicate Juror No. 10 had prejudged the case or was biased in anyway. No prejudice to defendant was demonstrated. Because the court and both lawyers agreed
there was no basis for excusing Juror No. 10, there is no reasonable
probability that the trial court would have granted a mistrial motion. Taylor was not ineffective in failing to make
a meritless objection. (People v. Jones (1998) 17 Cal.4th
279, 309.)
Defendant rather improbably conjectures that, after the exchange with the
trial court, Juror No. 10 was “aware that a D.A. spy might be nearby at any
time, and the potential effect of this situation on that juror’s mind calls
into question the subsequent decision making process on the part of that juror.†There is no support whatsoever for this
speculation.
Defendant also asserts that the prosecutor knew or should have known that
placing a “spy†among the jurors could give him the “thin edge they needed to
push the second jury towards the prosecution side, an edge gained by juror
intimidation.†But the advocate was
assigned to watch and assist Hernandez, not to eavesdrop. Juror No. 10 was not told that the advocate
was the source of the information about his comment. Therefore, he could not have felt intimidated
by her. Accordingly, any mistrial motion
would have been meritless.
Any motion to dismiss the case under the state double jeopardy clause
would also have failed because that clause bars retrial following the grant of
a defense mistrial motion in two circumstances not applicable here: “(1) when the prosecution intentionally commits
misconduct for the purpose of triggering a mistrial, and also (2) when the
prosecution, believing in view of events that unfold during an ongoing trial
that the defendant is likely to secure an acquittal at that trial in the
absence of misconduct, intentionally and knowingly commits misconduct in
order to thwart such an acquittal–and a court, reviewing the circumstances as
of the time of the misconduct, determines that from an objective perspective,
the prosecutor’s misconduct in fact deprived the defendant of a reasonable
prospect of an acquittal.†(People v. Batts (2003) 30
Cal.4th 660, 695, italics added.) Thus,
this basis for defendant’s IAC claim, like the other grounds, fails.
IV
REMAND TO IMPOSE OR STRIKE THE SECTION 451.1, SUBDIVISION (A)(5) ENHANCEMENT
During sentencing, the trial court twice mentioned staying the section 451.1,
subdivision (a)(5), enhancement, but the trial court did not stay, strike or
impose sentence on it.
Section 451.1, subdivision (a), provides: “Notwithstanding any other law, any person who
is convicted of a felony violation of Section 451 shall be punished by a three-,
four-, or five-year enhancement if one or more of the following circumstances
is found true . . . .†A trial court has
authority under section 1385 to strike a section 451.1 enhancement. (People
v. Wilson (2002) 95 Cal.App.4th 198, 203.) Thus, a trial court must either impose or
strike a section 451.1 enhancement. “‘The
failure to impose or strike an enhancement is a legally unauthorized sentence
subject to correction for the first time on appeal.’†(People
v. Flores (2005) 129 Cal.App.4th 174, 187-188, quoting People v. Bradley
(1998) 64 Cal.App.4th 386, 391; People v. Scott (1994) 9 Cal.4th
331, 354.) Accordingly, we remand the
case to allow the court an opportunity to impose a term on the enhancement or
strike it “in the furtherance of justice . . . .†(§ 1385, subd. (c)(1).)
V
DISPOSITION
We remand for the limited purpose of
allowing the trial court to exercise its discretion to impose or strike the
section 451.1, subdivision (a)(5) enhancement in count 1. Otherwise we affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
KING
J.
We concur:
McKINSTER
Acting P. J.
MILLER
J.
name="_ftn1" title=""> [1]
All statutory references are to the Penal Code unless stated otherwise.
amended information, removing three codefendants, charged defendant with arson
of an inhabited structure (§ 451, subd. (b); count 1), caused by a device
designed to accelerate the fire or delay ignition (§ 451.1, subd. (a)(5)), and
for pecuniary gain (§ 456, subd. (b)); possession of an incendiary device (§ 453,
subd. (a); count 2); insurance fraud (§ 550, subd. (a); count 3); and obstructing
a police officer (§ 148, subd. (a)(l); count 4).
