P. v. Frazier
Filed 7/11/12 P. v. Frazier CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION 3
THE PEOPLE
Plaintiff
and Respondent,
v.
JAHMAL FRAZIER
Defendant
and Appellant.
B236057
(Los
Angeles County
Super. Ct.
No. VA117303)
APPEAL
from a judgment of the Superior Court
of
County,
Peter Espinoza, Judge. Affirmed.
Michele
A. Douglass, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William Bilderback
II and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Defendant Jahmal Frazier was convicted of
given ineffective assistance of counsel.
We reject defendant’s arguments and affirm the judgment.
BACKGROUND
1. The
Robbery
On
October 23, 2010, at about
3:00 p.m., a man carrying a black
duffle bag and wearing a mask, a black “hoodie†sweatshirt, a black baseball
batter glove, and gray shorts (or sweatpants) entered a 7-Eleven store on Artesia
Boulevard in Bellflower. He was later identified as defendant.
Roshan
Bhandari was working at the 7-Eleven.
When defendant entered the store, there were no customers. Bhandari was cleaning a coffee table in an
area open to the public. Another
employee of the store was fixing or cleaning the cooler in a separate room.
Defendant
showed Bhandari a small black gun and demanded money. Bhandari gave him about $50 from the cash
register and $40 from the safe. The cash
consisted of one dollar and five dollar bills.
After defendant received the money, he fled. The robbery was captured by a surveillance
videotape.
While
the robbery was in progress, someone at the 7-Eleven triggered a silent
alarm. Deputy Sheriffs Michael Espinosa
and Jose Arciga were notified of the silent alarm and started driving toward
the 7-Eleven.
After
defendant left the 7-Eleven, Bhandari’s co-worker at the store called the
police and handed the telephone to Bhandari, who reported the crime. As Espinosa and Arciga were driving toward
the 7-Eleven, they were informed an actual robbery had occurred. When they arrived at the scene, they
interviewed Bhandari.
Deputy
Sheriffs Karen Taylor and Gary Osburn were also dispatched. Taylor
was advised that the suspect was a black male wearing a black jacket and gray
pants and was last seen on foot. When
she arrived in the area, she saw a person matching the suspect’s description
near a parked blue Ford Mustang. As she
approached, the suspect ran. Taylor
then requested assistance to set up a “containment†to prevent the suspect’s
escape.
Osburn
drove to the abandoned blue Ford Mustang.
Osburn found in the car a wallet which contained defendant’s driver’s
license, 56 one-dollar bills and 6 five-dollar bills. He also found a black duffle bag containing a
sweatshirt, gloves, shorts, and mask matching the clothes worn by the suspect
who robbed the 7-Eleven, as well as a black gun that appeared to be similar in
size and shape to the one used in the robbery.
Defendant
was eventually tracked down and detained by a police canine unit. Espinosa and Arciga arrested him.
2. Preliminary
Hearing
On
January 20, 2011, the trial
court held a preliminary hearing on
the charges against defendant. Bhandari
testified at the hearing as a witness for the People. He was also cross-examined by defendant’s
counsel.
3. Information
On
February 3, 2011, the People
filed an information charging defendant with second degree robbery in violation
of Penal Code section 211. The
information also alleged that defendant committed the robbery by personally
using a firearm, a handgun, within the meaning of Penal Code section 12022.53,
subdivision (b).
4. Trial
The
trial began on April 4, 2011. Bhandari was the People’s first witness. Before his direct examination was completed,
the trial adjourned for the day.
On the
next day, outside the presence of the jury, Deputy District Attorney Ann Park
advised the court that Bhandari had been shot and killed at about 7:30 a.m. on
his way to the courthouse.
name="_ftnref3" title="">[3] Defendant moved for a mistrial on the ground
that he did not have an opportunity to cross-examine Bhandari. The court denied the motion.
Shortly
thereafter, the court advised the jury that it was striking Bhandari’s
testimony on April 4, 2011. It also
instructed the members of the jury that they “are not to consider it
[Bhandari’s testimony] for any purpose.â€
The
People played for the jury the 7-Eleven surveillance videotape and the
audiotape of Bhandari’s 911 call.
Defendant’s counsel did not object to the admission of this evidence. The People also read from the transcript of
Bhandari’s testimony at the preliminary hearing. Again, defendant’s counsel did not object.
The
People called Gary Osburn, Karen Taylor, Michael Espinosa and Jose Arciga as
witnesses. The officers testified about
their investigation of the robbery and defendant’s arrest. Additionally, Osburn testified about
photographs that were created from the video surveillance tape at the 7-Eleven
where the robbery occurred. Defendant’s
counsel did not object to this testimony.
On
several occasions, outside the presence of the jury, counsel for both parties
and the trial court discussed television coverage of defendant’s trial and
Bhandari’s apparent murder. At the end
of the trial, the court advised the jury “there may be some media reports
associated with this case[.]†The court
admonished the jury to avoid television, radio, and print news during
deliberations.
5. Verdict
On
April 6, 2011, the jury returned a guilty verdict on the
defendant personally used a handgun within the meaning of Penal Code section
12022.53, subdivision (b).
6. Judgment
On
September 15, 2011, the trial court sentenced defendant to 15 years in state
prison, less credit for time in custody and good behavior. The court also ordered defendant to pay court
security and criminal conviction assessments, as well as restitution and parole
restitution fines. On September 19,
2011, the court entered judgment.
Defendant filed a timely notice of
appeal.
CONTENTIONS
Defendant
contends he was denied his federal and state rights to effective assistance of
counsel. He argues his trial lawyer,
Deputy Public Defender Debra D. Sims, made two principal errors requiring
reversal of the judgment. First, Sims
did not object to the admission of the surveillance videotape, still
photographs taken from the videotape, and the audiotape of the 911 call on the
ground that such evidence was not authenticated. Second, Sims did not object to the admission
of Bhandari’s preliminary hearing testimony even though there was no evidence
Bhandari was an unavailable witness.
DISCUSSION
1. The
Right to Effective Assistance of Counsel
Under
the Sixth Amendment to the
States Constitution and article I, section 15, of the California
Constitution, a criminal defendant has the right to effective assistance of
counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) “The ultimate purpose of this right is to
protect the defendant’s fundamental right
to a trial that is both fair in its conduct and reliable in its
result.†(Ibid.)
A
criminal conviction can be reversed on the ground that defendant did not
receive effective assistance of counsel if the defendant shows two things. First, counsel’s assistance fell below an
objective standard of reasonableness under prevailing professional norms. (Strickland
v. Washington (1984) 466 U.S. 668, 687-688 (Strickland); Williams v.
Taylor (2000) 529 U.S. 362, 390-391 (Taylor).) Second, the deficient performance prejudiced
the defense, that is, the errors were so egregious as to deprive the defendant
of a fair trial, a trial whose result is reliable. (Strickland,
at p. 687; Taylor, at p. 390.)
With respect to the first prong—objectively
reasonable assistance—“ ‘every effort [must] be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at
the time.’ †(Bell v. Cone (2002) 535 U.S. 685, 698, quoting Strickland, supra, 466
U.S. at p. 689.) Further, judicial
scrutiny of counsel’s performance must be “highly deferential.†(Strickland,
at p. 689.)
There
is a strong presumption counsel’s conduct was within a wide range of reasonable
professional assistance and that such conduct was part of counsel’s sound trial
strategy. (Strickland, supra, 466
U.S. at p. 689; Harrington v. Richter
(2011) __ U.S. __ 131 S. Ct. 770, 790.)
Thus, on appeal, “ ‘ “[i]f the record sheds no light on why counsel
acted or failed to act in the manner challenged, ‘unless counsel was asked for
an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation,’ [citation], the contention [that counsel provided
ineffective assistance] must be rejected.†’ â€
(People v. Slaughter (2002) 27
Cal.4th 1187, 1219.)
2. Defense
Counsel’s Decision to Not Raise Authentication Objections
Defendant
contends that his counsel provided ineffective assistance because she failed to
object to certain evidence on authentication grounds.
indicating why counsel did not raise authentication objections. We thus presume counsel declined to object
for tactical reasons, unless there is no possible tactical reason for doing so.
Counsel
could have reasonably concluded that raising authentication objections was
futile because the subject evidence could have been authenticated without
Bhandari’s testimony. The surveillance
videotape and the still photographs could have been authenticated by the second
employee who was working at the 7-Eleven when the robbery occurred, or by
Arciga and Espinosa, who arrived at the store shortly after the robbery. All three witnesses could have testified that
the videotape and still photographs were an accurate portrayal of what they
purported to be, namely a depiction of Bhandari and the suspect inside of the
7-Eleven at about 3:00 p.m. on October 23, 2010.
Cal.App.4th 436, 440, fn. 4 [a videotape can be authenticated “if the proponent
makes a showing the videotape is an accurate portrayal of what it purports to
beâ€].) Likewise, the audiotape of the
911 call could have been authenticated by Bhandari’s co-worker who initiated
the call or other witnesses who were familiar with Bhandari’s voice, including
perhaps deputies Arciga and Espinosa, who talked to Bhandari shortly after the
911 call. (People v. Patton (1976) 63 Cal.App.3d 211, 220 [“That the voice on
the tape was defendant’s was also established by the testimony of the officer
who arrested defendant in the phone booth while the conversation was in
progressâ€].)
At
a minimum, nothing in the record precludes the possibility that the videotape,
photographs and audiotape could have been authenticated without Bhandari’s
testimony. We therefore presume
defendant’s counsel did not raise authentication objections to this evidence
for tactical reasons and, accordingly, acted in an objectively reasonable
manner.
3. Defense
Counsel’s Decision to Not Object to the Reading of Bhandari’s Preliminary Hearing Testimony
Defendant
argues his counsel provided ineffective assistance because she failed to object
to Bhandari’s preliminary hearing testimony.
According to defendant, his counsel should have objected on the ground
that this evidence was precluded by the hearsay rule because there was no
showing Bhandari was an unavailable witness.
(Evid. Code, §§ 1200 [hearsay rule], 1350 [hearsay exception for
unavailable witness].)
We
reject this argument. Defendant’s
counsel could have reasonably concluded that it was not a wise tactic to
challenge the truthfulness of the deputy district attorney’s representation to
the court regarding Bhandari’s death, especially when there was no apparent
reason to do so. Further, defendant’s
counsel tried to take advantage of Bhandari’s apparent unavailability by moving
for a mistrial. We thus presume
defendant’s counsel declined to object to the reading of Bhandari’s preliminary
hearing testimony for sound tactical reasons.
Accordingly, defendant did not meet his burden of showing that his
counsel failed to act in an objectively reasonable manner.
4. Prejudice
Because
we conclude defendant did not show his counsel failed to act in an objectively
reasonable manner, we do not reach the issue of whether counsel’s alleged
ineffective assistance prejudiced defendant.
DISPOSITION
The
judgment is affirmed.
KITCHING,
J.
We
concur:
KLEIN,
P. J.
CROSKEY,
J.
gun was later identified by Bhandari as the gun used in the robbery.
Bhandari’s description of the robber’s clothes was somewhat different than what
was shown on the surveillance videotape at the 7-Eleven. Bhandari testified that the color of the
robber’s “hoodie†was “like a creamy color; like not exact[ly] white, but
creamy.†He also stated that the robber
was wearing “trousers†which were “gray or something like this (indicating) . .
. .â€
