Filed 6/30/26 P. v. Kambon 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C100478
Plaintiff and Respondent,
(Super. Ct. No. 19FE020740)
v.
THEON KAMBON,
Defendant and Appellant.
A jury found defendant Theon M. Kambon guilty of inflicting corporal injury on
his girlfriend T.D. and battery causing serious bodily injury. In a bifurcated trial, the jury
found that defendant was previously convicted of a serious felony offense. The trial
court sentenced defendant to 18 years in state prison.
Defendant now contends (1) the trial court violated his constitutional confrontation
rights by admitting T.D.’s preliminary hearing testimony after the prosecution failed to
secure her appearance at trial; (2) the prosecutor committed misconduct during rebuttal
argument, but if the prosecutorial misconduct claim is forfeited, defendant’s trial counsel
rendered ineffective assistance; (3) the prosecutor violated Brady v. Maryland (1963)
373 U.S. 83 (Brady) by failing to return defendant’s cell phone; (4) defendant’s trial
counsel was ineffective in failing to adequately investigate the case; (5) the trial court
erred in denying defendant’s new trial motion; (6) cumulative prejudice requires reversal;
1
and (7) the trial court imposed an upper term sentence without considering certain
mitigating factors.
We conclude (1) the portion of defendant’s confrontation claim asserting
lack of due diligence is forfeited, and the portion pertaining to evidentiary reliability
lacks merit; (2) the prosecutorial misconduct claim is forfeited and defendant has not
established his alternative claim of ineffective assistance; (3) there was no Brady
violation; (4) defendant’s ineffective assistance claim based on his attorney’s failure
to investigate lacks merit because he has not shown that his attorney’s investigation
was inadequate; (5) the trial court did not err in denying defendant’s new trial motion;
(6) there is no cumulative prejudice to assess; and (7) defendant’s challenge to the upper
term sentence is forfeited.
BACKGROUND
We recite the facts based on all the evidence, including T.D.’s preliminary hearing
testimony, which was read into evidence after she did not appear at trial. As required,
we do so in the light most favorable to the judgment.
Defendant and T.D. were involved in an abusive romantic relationship for about
three years.1 They lived together in an office building that defendant rented.
The incident giving rise to defendant’s convictions happened on October 21, 2019.
That morning, defendant and T.D. argued while defendant drove her to the house of her
cousin, David L., where she provided in-home care for her aunt. Defendant and T.D.
continued to argue when they arrived at David L.’s house, and defendant followed T.D.
into the kitchen. T.D. told defendant she was done and wanted to break up. When
1 Evidence was presented at trial regarding defendant’s prior acts of abuse against T.D.
and others, along with prior convictions for assault by means of force likely to cause
great bodily injury, infliction of corporal injury, and false imprisonment. We do not
describe that evidence because it is not relevant to the contentions on appeal.
2
defendant responded that she “wasn’t going anywhere,” T.D. insisted she “didn’t have
to be with him” and could find somewhere else to live. Defendant repeated that she
“wasn’t going to go anywhere.” T.D. turned to put her purse down, and when she turned
back toward defendant, he punched her in the face. T.D. ran to the basement with blood
running from her nose.
David L. was working in his basement when T.D. came running downstairs.
After defendant left, David L. took her to the hospital, where medical staff unsuccessfully
tried to reset T.D.’s nose. She later had surgery to repair the damage, but that was not
completely successful either. At the time of the preliminary hearing, four or five months
later, she was still unable to breathe out of her right nostril.
T.D. did not report the incident to police for 10 days. David L. made the call
for her. An officer responded to David L.’s house and spoke with T.D. and David L.
T.D. had bruising under both eyes, a large bandage over her nose, and visible bruising
around the bandage. Among other evidence, the People adduced testimony at trial from a
domestic violence expert, who testified about the cycle of violence and various common
misconceptions a person might have about the behavior of victims of domestic violence.
Defendant testified in his own defense. He denied ever assaulting T.D.
The jury found defendant guilty of inflicting corporal injury on T.D. and battery
causing serious bodily injury. The jury also found that defendant personally inflicted
great/serious bodily injury. In a bifurcated trial, the jury found that defendant was
previously convicted of a serious felony offense. The trial court sentenced him
to 18 years in state prison.
DISCUSSION
I
Defendant contends the trial court violated his state and federal constitutional
confrontation rights by admitting T.D.’s preliminary hearing testimony. Specifically,
defendant argues (1) the prosecution did not establish that it exercised due diligence
3
in attempting to secure her presence at trial, and (2) the prosecution did not establish
that her preliminary hearing testimony was reliable because, although she was subject
to cross-examination, there was not a similar interest and motive to cross-examine her
at that hearing. We conclude the due diligence claim is forfeited, and the reliability claim
lacks merit.
The preliminary hearing was held in March 2020. The trial date was subsequently
vacated and reset multiple times. On October 28, 2021, the trial court and the parties
discussed whether T.D.’s preliminary hearing testimony would be read into evidence
because the prosecution was unable to secure her presence at trial, referring to the matter
as “the due diligence issue.” After the prosecutor stated that she preferred not to set forth
their efforts to locate T.D. in defendant’s presence, the trial court noted that the parties
discussed the matter in chambers and the prosecution provided evidence of their efforts in
that regard. The evidence was filed under seal.
Asked to “weigh in on that topic,” defense counsel stated: “Your Honor, we did
discuss this in the back. Due diligence, it sounds like that has been satisfied.” Defense
counsel then objected to the admission of the preliminary hearing testimony because
defendant “had an objection to the public defender representing him at the preliminary
hearing.” Defense counsel explained: “My understanding is there was a legal conflict
that somehow became discovered by the public defender at the preliminary hearing, and
that’s how I got this case. I’m with the conflict panel. The fact there was this conflict
that existed even though the prelim was allowed to go forward, I think, that would create
quite a bit of prejudice for the defense here.” Defense counsel argued, “I’m not sure how
effective the public defender was in cross-examining [T.D.]” and “I never had an
opportunity to [do so],” which “puts [defendant] at a distinct disadvantage to confront the
lone accuser here, which is [T.D.]”
In response, the prosecutor argued “it would be mere speculation to say the
conflict arose prior to the preliminary hearing,” as opposed to afterwards. The prosecutor
4
also argued that the public defender who represented defendant at the preliminary hearing
cross-examined T.D. extensively and did so with “the same motive” that defense counsel
had in wanting to cross-examine her at trial.
The trial court ruled that T.D. was unavailable as a witness under Evidence Code
section 2402 because the prosecution “exercised due diligence” but was unable to secure
her presence. According to the trial court, that opened the door for use of the preliminary
hearing transcript under section 1291. The trial court noted that the evidentiary portion
of the trial would not begin for several days, so the ruling would be subject to
reevaluation if circumstances changed. Defense counsel did not ask the trial court
to reconsider its ruling based on any change in circumstances.
Although defense counsel’s objection and argument before the trial court
preserved defendant’s confrontation challenge based on evidentiary reliability, defense
counsel did not object to the preliminary hearing testimony based on a lack of due
diligence. Indeed, defense counsel effectively conceded that the evidence produced by
the prosecution in chambers satisfied their burden in that regard. Defendant’s due
diligence argument is forfeited. Anticipating this conclusion, for the first time in his
reply brief, defendant raised an alternative claim of ineffective assistance. However, we
do not consider contentions asserted for the first time in a reply brief. (People v. Duff
(2014) 58 Cal.4th 527, 550, fn. 9.)
As for defendant’s reliability challenge, we conclude it lacks merit. “A criminal
defendant has the right under both the federal and state Constitutions to confront the
witnesses against him. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) This right,
however, is not absolute.” (People v. Wilson (2005) 36 Cal.4th 309, 340 (Wilson).)
“ ‘ “An exception exists when a witness is unavailable and, at a previous court
2 Undesignated statutory references are to the Evidence Code.
5
proceeding against the same defendant, has given testimony that was subject to cross-
examination.” ’ ” (People v. Fuiava (2012) 53 Cal.4th 622, 674-675.) “[S]ection 1291
codifies this traditional exception.” (Wilson, at p. 340.)
Section 1291, subdivision (a) provides that “[e]vidence of former testimony is not
made inadmissible by the hearsay rule if the declarant is unavailable as a witness” and
“[t]he party against whom the former testimony is offered was a party to the action or
proceeding in which the testimony was given and had the right and opportunity to cross-
examine the declarant with an interest and motive similar to that which he [or she] has at
the hearing.” (§ 1291, subd. (a)(2).) “Both the United States Supreme Court and [the
California Supreme Court] have concluded that ‘when a defendant has had an opportunity
to cross-examine a witness at the time of his or her prior testimony, that testimony is
deemed sufficiently reliable to satisfy the confrontation requirement … . [Citation.]’
[Citations.] In Crawford v. Washington[ (2004) 541 U.S. 36], the high court stated that a
prior opportunity to cross-examine a witness was ‘dispositive’ of the admissibility of his
testimonial statements, ‘and not merely one of several ways to establish reliability.’
[Citation.]” (Wilson, supra, 36 Cal.4th at p. 343.)
In People v. Zapien (1993) 4 Cal.4th 929 (Zapien), the California Supreme Court
held that preliminary hearing testimony satisfied this reliability requirement even though
“a defendant’s motive for cross-examining a witness during a preliminary hearing” often
differs “from his or her motive for cross-examining that witness at trial.” (Id. at p. 975.)
The court explained: “For the preliminary hearing testimony of an unavailable witness to
be admissible at trial under … section 1291, these motives need not be identical, only
‘similar.’ [Citation.] Admission of the former testimony of an unavailable witness is
permitted under … section 1291 and does not offend the confrontation clauses of the
federal or state Constitutions—not because the opportunity to cross-examine the witness
at the preliminary hearing is considered an exact substitute for the right of cross-
examination at trial [citation], but because the interests of justice are deemed served
6
by a balancing of the defendant’s right to effective cross-examination against the public’s
interest in effective prosecution. [Citations.]” (Zapien, at p. 975; see People v. Samayoa
(1997) 15 Cal.4th 795, 850 (Samayoa).)
Here, as in Zapien and Samayoa, defendant’s “interest and motive for cross-
examining [T.D.] during the preliminary hearing were sufficiently similar to those
existing at trial so as to permit the admission of [T.D.’s] preliminary hearing testimony.”
(Zapien, supra, 4 Cal.4th at p. 975; see Samayoa, supra, 15 Cal.4th at p. 851.) This is so
even though defendant now claims that his counsel during the preliminary hearing missed
several opportunities to attack T.D.’s credibility through cross-examination. “The
possibility that current counsel would have cross-examined a witness differently or more
searchingly does not, in itself, render the prior testimony inadmissible … .” (People v.
Bloom (2022) 12 Cal.5th 1008, 1044.)
Relying on People v. Louis (1986) 42 Cal.3d 969, defendant argues his counsel at
the preliminary hearing had no motive to conduct a full and thorough cross-examination
of T.D. at that early stage of the proceedings. But as defendant acknowledges, the
decision in Louis did not resolve whether the defendant had an opportunity to cross-
examine the relevant witness at the preliminary hearing “with an interest and motive
similar to those he had at trial.” (Louis, at p. 990.) Cases are not authority for
propositions not considered or ruled upon. (People v. Chavez (2020) 54 Cal.App.5th 477,
480.) Although the court in Louis stated in dicta that it had “some doubt” about whether
defense counsel had a similar interest and motive in cross-examining the witness at the
preliminary hearing (Louis, at p. 990), the more recent Zapien and Samayoa decisions
make clear that a defendant will generally have a “sufficiently similar” interest and
motive in cross-examining a witness at a preliminary hearing. (Zapien, supra, 4 Cal.4th
at p. 975; Samayoa, supra, 15 Cal.4th at p. 851.) Whether or not that was the case in
Louis, it is the case here.
7
II
Defendant next contends the prosecutor committed prosecutorial misconduct
during her rebuttal argument.
In response to statements made by defense counsel during his closing argument
about T.D.’s absence from the trial, specifically that he was unable to cross-examine her
and the jury was therefore unable to properly assess her credibility, the prosecutor made
the following remarks during her rebuttal argument: “[T.D.] testified at the preliminary
hearing but did not testify in front of you. So the person who abused her should not be
convicted because [she] is still in fear of him? Murder victims don’t testify either and
people are convicted of their murders all the time.” Defense counsel did not object to
these remarks or request a curative admonition. Defendant’s prosecutorial misconduct
claim is therefore forfeited. (See People v. Seumanu (2015) 61 Cal.4th 1293, 1328.)
Anticipating this conclusion, defendant argues in the alternative that he received
ineffective assistance of counsel.
“ ‘In assessing claims of ineffective assistance of trial counsel, we consider
whether counsel’s representation fell below an objective standard of reasonableness
under prevailing professional norms and whether the defendant suffered prejudice to a
reasonable probability, that is, a probability sufficient to undermine confidence in the
outcome. [Citations.] A reviewing court will indulge in a presumption that counsel’s
performance fell within the wide range of professional competence and that counsel’s
actions and inactions can be explained as a matter of sound trial strategy. Defendant thus
bears the burden of establishing constitutionally inadequate assistance of counsel.
[Citations.] If the record on appeal sheds no light on why counsel acted or failed to act in
the manner challenged, an appellate claim of ineffective assistance of counsel must be
rejected unless counsel was asked for an explanation and failed to provide one, or there
simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is more
8
appropriately raised in a petition for writ of habeas corpus.’ [Citation.]” (People v. Gray
(2005) 37 Cal.4th 168, 206-207 (Gray).)
Defense counsel was not asked why he did not object to the challenged comments.
However, a satisfactory explanation appears to this court. Although a prosecutor
commits misconduct by referring to facts not in evidence or mischaracterizing the
evidence, she “ ‘enjoys wide latitude in commenting on the evidence, including the
reasonable inferences and deductions that can be drawn therefrom.’ ” (People v. Collins
(2010) 49 Cal.4th 175, 230; see People v. Cook (2006) 39 Cal.4th 566, 608 [“prosecutor
may make fair comment on the state of the evidence”].) Moreover, it is for the jury to
decide “the reasonableness of inferences counsel draws from matters in evidence.”
(People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 787.) Here, there is
strong evidence in the record that defendant abused T.D., who did not appear for trial.
There is also evidence in the record that T.D. was afraid of defendant. From those facts,
the prosecutor argued an inference that T.D. did not appear for trial because she was
afraid of defendant. Whether that inference is reasonable or not was for the jury to
decide. (Ibid.)
Turning to the prosecutor’s comment about murder victims not testifying, a
prosecutor “may argue facts not in evidence that are common knowledge or drawn from
common experiences.” (People v. Young (2005) 34 Cal.4th 1149, 1197.) It is certainly
common knowledge that a murder victim cannot testify against his or her murderer. It is
also common knowledge that people are tried and convicted of murder notwithstanding
the absence of victim testimony. The point the prosecutor was making was simply that,
just as a murderer may be convicted of murder without victim testimony, so too may a
domestic abuser be convicted of domestic violence without such testimony.
Defendant argues the comments implied that T.D. was not present at the trial
because she had been murdered and that defendant was responsible. “When a claim
of misconduct is based on the prosecutor’s comments before the jury, ‘ “the question
9
is whether there is a reasonable likelihood that the jury construed or applied any of the
complained-of remarks in an objectionable fashion.” ’ [Citation.]” (People v. Friend
(2009) 47 Cal.4th 1, 29.) Here, there is no reasonable likelihood that the jury understood
the prosecutor’s comments to suggest that defendant or anyone else murdered T.D.
Defendant has not established ineffective assistance of counsel based on the lack of
objection to the prosecutor’s rebuttal argument.
III
Defendant further asserts that the prosecutor violated Brady by failing to return his
cell phone to him before trial.
A
When defendant was arrested, police seized his cell phone. During trial, before
defendant testified, defense counsel sought to add an additional defense witness, G.S.
Defense counsel stated that he had just obtained G.S.’s contact information and counsel
believed G.S. could be an alibi witness, although counsel had not yet spoken to him.
The prosecutor objected to the late notice. Defense counsel responded that G.S.’s contact
information was on defendant’s cell phone, and although the prosecutor had agreed to
provide the defense with access to the phone under certain conditions, defendant had not
agreed to those conditions. Defense counsel was ultimately able to obtain G.S.’s contact
information from defendant, who apparently got it from his former employer. The
prosecutor stated that defendant was given every opportunity to access the cell phone, but
the prosecution’s investigator would have to be present to make sure there would be no
manipulation of the phone by the defense investigator. The trial court reserved ruling on
whether G.S. would be allowed to testify. After defendant testified, defense counsel said
he would interview G.S. that afternoon and provide the prosecutor with additional
information. Thereafter, the defense did not seek to call G.S. as a witness.
After the jury returned its verdicts, defendant made a motion to represent himself,
which the trial court granted. Defendant filed numerous motions, including a motion for
10
new trial, a motion for mistrial, and a motion for dismissal. In the new trial motion,
defendant claimed, among other things, that the prosecution violated Brady by
withholding his cell phone. Defendant argued the phone contained information that
would prove he was nowhere near T.D. when she was injured. Defendant added that the
prosecution withheld “ ‘ping data’ ” that would prove he was not around T.D. at the time
of the crimes. The motions for mistrial and dismissal included similar claims.
At a hearing on the motion for mistrial, defendant said that through two different
attorneys, he asked for the cell phone. He said authorities had a search warrant for his
cell phone; it was to be tracked to locate him for an arrest warrant. Defendant argued the
cell phone location data could prove he was not at the scene of the crimes, but the
prosecutor refused to turn it over before trial. Defendant acknowledged that his
investigator told him the search warrant was issued on November 1, 2019, and would not
have returned any location data prior to that date, but defendant did not believe it, saying
“they can go backwards and forwards.”
The prosecutor said defendant’s cell phone had been held due to an ongoing
investigation into other possible crimes; the investigation did not result in additional
charges. But the defense had been given the opportunity to access the phone in the
presence of a prosecution investigator, and after trial, the phone was released to
defendant. Regarding the search warrant, the prosecutor confirmed it had been issued
on November 1, 2019, to locate defendant and take him into custody. According to the
prosecutor, because the warrant specifically asked for location data during the month of
November, there would not be any exculpatory information regarding the crimes in this
case, which occurred on October 21, 2019.
At a subsequent hearing, the trial court confirmed that the purpose of the search
warrant was to find defendant. Defendant complained that the phone was not returned
until after trial, asserting it had exculpatory information in it, specifically a text message
from T.D. that he claimed showed they were not together that morning. The prosecutor
11
again said defense counsel had been given the opportunity to access the phone. The trial
court ruled the Brady challenge was unfounded.
B
Under Brady, “the government has the obligation to disclose to the defendant
evidence in its possession that is favorable to the accused and material to the issues of
guilt or punishment. [Citations.] Evidence is material if a reasonable probability exists
that a different result would have occurred in the proceeding had the evidence been
disclosed to the defense. A reasonable probability is a probability sufficient to undermine
confidence in the outcome of the proceedings. [Citations.]” (People v. Jenkins (2000)
22 Cal.4th 900, 954.) Thus, a Brady violation has three components: “The evidence at
issue must be favorable to the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the State, either willfully or
inadvertently; and prejudice must have ensued.” (Strickler v. Greene (1999) 527 U.S.
263, 281-282 [144 L.Ed.2d 286].) On appeal, defendant has the burden of establishing a
Brady violation. (People v. Jimenez (2019) 32 Cal.App.5th 409, 418.) We independently
determine whether such a violation has occurred but accord great weight to the trial
court’s factual findings when supported by substantial evidence. (Ibid.)
Defendant has not established the first required component of his Brady claim.
He has not shown that any of the information on his cell phone would have been
favorable to his defense. With respect to G.S.’s contact information, which was obtained
by other means and did not result in G.S. testifying for the defense, defendant makes no
argument that G.S. would have actually provided him with an alibi had he testified. As
for the location data, even if the phone contained such data, defendant offers no reason to
believe his phone was anywhere other than David L.’s house during the incident, aside
from his self-serving statements at the hearing on the Brady motion. Regarding the ping
data received in response to the search warrant, the prosecutor explained it would not
have been exculpatory because it was obtained to find defendant after the crimes for the
12
purpose of arresting him, and it did not cover the date of the incident at David L.’s house.
Defendant disputes this, but he does not show that any such data would have been
favorable to the defense.
Finally, defendant asserts that a text message exchange between him and T.D.,
which he received after the prosecutor returned his phone, was favorable because it
showed he was somewhere other than David L.’s house at the time. In support of this
assertion, however, defendant cites only his self-serving statements that this was the case.
To the extent the text messages exist, they are outside the record and cannot support
reversal on appeal. (See People v. Black (2009) 176 Cal.App.4th 145, 153 [a claim
raising matters outside the record on appeal should be resolved in a habeas corpus
proceeding].)
Because a successful Brady claim requires all three components, and the first
component -- evidence favorable to the accused -- has not been established, we need not
address the other two components.
IV
In addition, defendant claims his trial counsel provided ineffective assistance by
failing to adequately investigate the case.
A
Defendant’s new trial motion was based in part on a claim of ineffective
assistance. Defense counsel testified at the hearing on the motion. The following
portions of counsel’s testimony are relevant to defendant’s arguments on appeal.
In response to questioning from defendant, defense counsel testified that he
investigated the case to the best of his ability. Acknowledging that he did not send an
investigator to interview potential witnesses, defense counsel said defendant had been
uncooperative in providing contact information or in assisting defense counsel in how to
contact potential witnesses. Defense counsel said defendant told him T.D. would not
show up and testify, and because of that, defendant believed he would not be convicted,
13
so he did not want to get anybody else involved. Defense counsel was asked why he did
not interview defendant’s brother, A.K. T.D. had testified that A.K. had been nearby
during another alleged prior assault. Defense counsel explained that because defendant
had described A.K. as a drug addict without housing, defense counsel believed A.K.
would not be a reliable witness. Asked whether he investigated if defendant and T.D. had
lived in an office building for three years, defense counsel said he “was not really able
to,” but he did speak with David L. at one point, who confirmed they “were living
somewhere together around that time.”
Regarding the bodycam footage of T.D.’s statement to police, defense counsel said
he had reviewed the prior statement and it “mirrored the allegations in the police reports.”
Defense counsel acknowledged “there may have been some inconsistencies” between her
statement to police and her preliminary hearing testimony, “but for the most part, it
looked to be rather consistent.” Apparently toward the end of the video, two officers
made certain comments about whether they believed T.D. Defendant asked defense
counsel why he did not investigate that or have the footage played for the jury. Defense
counsel said he did not believe it was relevant.
Speaking generally about his investigative efforts, defense counsel said he was
happy to investigate and happy to look into the issues defendant raised, but often he
received pushback from defendant. He said defendant was not very cooperative with the
investigation. Defense counsel mentioned that defendant refused to provide his password
so the investigator could access defendant’s cell phone, in the presence of the
prosecution’s investigator, to attempt to find a potential alibi witness. Defense counsel
stated: “My recollection is the only thing you would agree to was to have that phone
returned back to you.” Defense counsel added that he did not want a situation where the
phone was unlocked and there was evidence of other crimes. Asked why he did not
simply have the phone returned, defense counsel said he had no meritorious reason for a
motion to have it released. According to defense counsel, they had other ways of getting
14
the contact information for the witness. Ultimately, the witness “seemed to avoid
service” and was never served with a subpoena.
B
“[W]hen reviewing a claim of ineffective assistance, we ‘must apply a “strong
presumption” that counsel’s representation was within the “wide range” of reasonable
professional assistance.’ [Citation.] ‘Judicial scrutiny of counsel’s performance must be
highly deferential. It is all too tempting for a defendant to second-guess counsel’s
assistance … , and it is all too easy for a court, examining counsel’s defense after it has
proved unsuccessful, to conclude that a particular act or omission of counsel was
unreasonable. [Citation.] A fair assessment of attorney performance requires that every
effort 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.’ [Citation.]” (In re Friend (2022) 76 Cal.App.5th 623,
635.) As stated previously, defendant has the burden of proving ineffective assistance,
and must do so by demonstrating that counsel’s representation fell below an objective
standard of reasonableness and that defendant suffered prejudice as a result of counsel’s
unreasonable actions or inactions. (Gray, supra, 37 Cal.4th at pp. 206-207.) Defendant
has not carried his burden.
Defendant faults defense counsel for not demanding that the prosecution hand
over his cell phone or scheduling a hearing to determine the legal basis upon which the
phone was being held. However, as the prosecution explained, the phone was being held
for the investigation of possible additional crimes. Defense counsel did not believe he
had a “meritorious reason to file a motion to have it released.” On appeal, defendant does
not supply this court with any meritorious argument that he believes would have secured
the release of the phone. He simply states that there were “Fourth Amendment
implications involved,” and assumes that had defense counsel “advocated for
[defendant],” he would have been able to access the phone without acceding to the
15
prosecution’s offer to allow such access only in the presence of their investigator. It is
defendant’s burden, however, to show that defense counsel’s conduct was unreasonable.
Without demonstrating that the phone should have been released, defendant cannot show
that defense counsel’s assessment was unreasonable, or that defendant experienced any
prejudice from defense counsel’s failure to seek the phone’s release. Moreover, the
prosecution offered the defense access to the phone with conditions to prevent evidence
tampering. Defendant did not want to accede to those conditions. We decline to
conclude that defense counsel’s decision to comply with defendant’s wishes fell below an
objective standard of reasonableness.
Defendant complains defense counsel did not investigate T.D.’s claim that she
lived in an office building with defendant for three years, something defendant describes
as an “incredible assertion.” According to defendant, defense counsel should have gone
to the location, taken photographs, or interviewed neighbors. Defendant also faults
defense counsel for not interviewing his parole officer, “who would necessarily know
where and with whom [he] was living.” However, as defense counsel explained, he
investigated the living arrangement by speaking with David L. Defense counsel said he
did not interview others because defendant believed he would not be convicted and he did
not want to involve anyone else. Again, we decline to conclude that defense counsel
acted unreasonably.
Defendant further contends that defense counsel did not interview A.K. But
defendant told defense counsel A.K. was a drug addict without housing and would not be
a reliable witness or have anything to add. Defendant cannot now assert that his counsel
acted unreasonably in believing him. As for other witnesses, defendant told counsel he
did not want to get others involved.
Moreover, defendant faults defense counsel for failing to obtain and review
the bodycam footage from T.D.’s police interview. However, defense counsel testified
he did review the footage and that T.D.’s police statement and her preliminary hearing
16
testimony were “rather consistent.” The trial court was entitled to believe defense
counsel. (See People v. Smith (1993) 6 Cal.4th 684, 696-697.)
Finally, defendant complains that defense counsel did not attempt to locate G.S.
until defendant provided him with G.S.’s full name. Defendant points out that he gave
defense counsel G.S.’s first name prior to trial and faults him for not going to defendant’s
previous place of work to try to get G.S.’s full name and to locate him. We need not
determine whether defense counsel should have done more to locate G.S. because, as we
explained in connection with defendant’s Brady claim, he provides this court with no
reason to believe that G.S. would have actually provided him with an alibi, or any helpful
testimony at all, had he testified. (See People v. Bolin (1998) 18 Cal.4th 297, 334
[defendant must show that the witness would have provided exculpatory testimony].)
Defendant does not establish a reasonable probability that the result would have been
different had defense counsel done more to locate G.S.
Defendant has also failed to demonstrate prejudice flowing from any other aspect
of his ineffective assistance claim. With respect to the contents of the cell phone, as we
also explained in rejecting his Brady claim, defendant has not shown that any of the
phone’s contents would have been helpful to the defense. Defendant likewise does not
demonstrate a reasonable probability that the result would have been different had the
phone been released. The alleged failure to adequately investigate whether defendant and
T.D. lived in an office building for three years does not undermine our confidence in the
outcome. As for the failure to interview A.K., defendant was acquitted of the charge
arising from the relevant alleged prior assault, so there is no prejudice as to that charge.
As for the crimes at David L.’s house, there is no showing that A.K. and others would
have specific information about them. Any general impeachment evidence they might
have provided does not undermine our confidence in the outcome.
17
V
Defendant contends the trial court erred in denying his new trial motion under
Penal Code section 1181, which was based in part on ineffective assistance and in part on
newly discovered evidence.
“A trial court may grant a new trial motion ‘[w]hen new evidence is discovered
material to the defendant, and which he could not, with reasonable diligence, have
discovered and produced at the trial.’ [Citation.] In ruling on such a motion, the trial
court considers several factors: ‘ “ ‘1. That the evidence, and not merely its materiality,
be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as
to render a different result probable on a retrial of the cause; 4. That the party could not
with reasonable diligence have discovered and produced it at the trial; and 5. That these
facts be shown by the best evidence of which the case admits.’ ” [Citations.]’ ”
(People v. Mehserle (2012) 206 Cal.App.4th 1125, 1151, quoting People v. Delgado
(1993) 5 Cal.4th 312, 328.) “A new trial motion based on newly discovered evidence is
looked upon with disfavor. We will only disturb a trial court’s denial of such a motion if
there is a clear showing of a manifest and unmistakable abuse of discretion.” (Mehserle,
at p. 1151; see People v. Musselwhite (1998) 17 Cal.4th 1216, 1251-1252.)
Defendant claims he proffered as new evidence text messages between himself
and T.D. showing they were not present together at the time of the crimes. He claims he
also attempted to offer a rental agreement to demonstrate that he was not living in the
office building during the relevant time period.
At the hearing, the prosecutor argued: “None of this is new evidence. All of this
evidence was available at the time of trial.” Defendant responded that the text messages
were newly discovered because the prosecutor had his phone. He said the remaining
evidence was newly discovered because his trial counsel had not done an investigation.
The trial court denied the newly discovered evidence portion of the new trial motion,
finding no new or relevant evidence that would affect the outcome of the case.
18
When the text messages were mentioned again during an offer of proof, the
prosecutor objected, noting that the trial court had already denied the newly discovered
evidence portion of the new trial motion. The evidence was never admitted into evidence
and it is not part of the record on appeal.
Defendant argues the trial court erred in refusing to accept his proffered evidence
and by denying the new trial motion without reviewing it. However, defendant points
this court to no portion of the record where he offered the text messages and other items
into evidence and was refused. In any event, defendant has not carried his appellate
burden of demonstrating an abuse of discretion. Defendant did not establish at the
hearing on the new trial motion, and has not persuaded this court on appeal, that any of
the evidence was newly discovered within the meaning of Penal Code section 1181.
Stated simply, defendant, “with reasonable diligence, could have discovered and
produced this evidence at trial.” (People v. Soojian (2010) 190 Cal.App.4th 491, 512.)
Moreover, based on his own description of the purported newly discovered evidence,
“[w]e conclude the trial court did not abuse its discretion by denying the new trial motion
because the new evidence would have added little to the trial and would not have
rendered a different result probable on retrial.” (Mehserle, supra, 206 Cal.App.4th at
p. 1151.)
VI
Having rejected each of defendant’s previous claims of error, his assertion
of cumulative prejudice must also fail. Stated simply, there is no cumulative prejudice
to assess.
VII
Finally, defendant claims the trial court erred by imposing an upper term sentence
without “conduct[ing] a meaningful review of whether his mental health issues and
childhood abuse were contributing factors in the crimes for which he was convicted.”
The claim is forfeited.
19
Effective January 1, 2022, two years before defendant was sentenced in this case,
Senate Bill No. 567 (2021-2022 Reg. Sess.) added subdivision (b)(6) to Penal Code
section 1170, creating “a presumption in favor of the lower term if a defendant’s
psychological, physical, or childhood trauma contributed to the commission of the
offense.” (People v. Tilley (2023) 92 Cal.App.5th 772, 777 (Tilley); see Pen. Code,
§ 1170, subd. (b)(6)(A).) This provision “does not require the [trial] court to impose
the lower term because of defendant’s mental illness, but for psychological trauma.
While at least one court has concluded ‘psychological trauma based on mental illness
may be a circumstance qualifying for the lower term presumption in section 1170,
subdivision (b)(6),’ that court also emphasized that mental illness alone did not qualify
for the lower term presumption.” (Tilley, at pp. 777-778, quoting People v. Banner
(2022) 77 Cal.App.5th 226, 241.) Moreover, the psychological or childhood trauma must
have been “a contributing factor in the commission of the offense.” (Pen. Code, § 1170,
subd. (b)(6).)
“Generally, if a party does not object to the sentence in the trial court, they may
not claim on appeal the trial court failed to properly make or articulate its discretionary
sentencing choices.” (Tilley, supra, 92 Cal.App.5th at p. 778; see People v. Scott (1994)
9 Cal.4th 331, 351.) Although defendant represented himself at the sentencing hearing,
he is held to the same standard as an attorney. (People v. Frederickson (2020) 8 Cal.5th
963, 1000.)
At the sentencing hearing, defendant did not seek the lower term based on
Penal Code section 1170, subdivision (b)(6), he did not object to the trial court’s
imposition of the upper term, and he did not argue that psychological or childhood
trauma contributed to the commission of his crimes. Accordingly, this claim is forfeited.
(Tilley, supra, 92 Cal.App.5th at p. 778.) Moreover, even if defendant’s claim is not
forfeited (see People v. Fredrickson (2023) 90 Cal.App.5th 984, 994, fn. 8), nothing in
the sparse statements in defendant’s application for mental health diversion or probation
20
report, on which he relies, demonstrates that the trial court abused its discretion
in declining to consider or impose the lower term.
DISPOSITION
The judgment is affirmed.
/S/
MAURO, Acting P. J.
We concur:
/S/
RENNER, J.
/S/
FEINBERG, J.
21