P. v. Perez
Filed 9/12/13 P. v. Perez CA4/2
TO BE PUBLISHED IN OFFICIAL REPORTS
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This opinion has not been certified for publication or ordered published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.
THE COURT OF APPEAL OF THE STATE OF
APPELLATE DISTRICT
TWO
THE
PEOPLE,
Plaintiff and Respondent,
v.
TITO
PEREZ, JR.,
Defendant and Appellant.
E055082
(Super.Ct.No. FSB905298)
OPINION
APPEAL from
the Superior Court of
Bernardino County.
Ronald M. Christianson, Judge.
Affirmed.
David L.
Kelly, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, and Melissa Mandel, Deputy
Attorney General, for Plaintiff and Respondent.
Defendant Tito Perez, Jr., appeals his
conviction for the gang-related first
degree murder of Alex Alaniz. The sole
issue he raises is ineffective assistance of trial counsel, who, defendant
contends, prejudicially failed to investigate possible exculpatory evidence and
failed to call a gang expert to testify on defendant’s behalf.
We conclude
that even if trial counsel’s performance fell below the applicable standard of
resulted.
PROCEDURAL HISTORY
Defendant
was charged with one count of first degree murder, along with gun use and gang allegations. (Pen. Code, §§ 187, subd. (a), 12022.53,
subd. (d), 186.22, subd. (b)(1)(C).)
jury convicted him of the offense as charged and found true allegations that he
personally discharged a handgun, resulting in death (§ 12022.53,
subd. (d)), and that he committed the crime for the benefit of a
subd. (b)(1)(C)).
Defendant
filed a motion for a new trial,
asserting ineffective assistance of trial counsel and the erroneous admission
of prejudicial evidence. After a
hearing, the court denied the motion.
The court then sentenced defendant to two consecutive terms of 25 years
to life, with a minimum parole eligibility period of 15 years, pursuant to
section 186.22, subdivision (b)(1)(C).
Defendant
filed a timely notice of appeal.
FACTS
On December
12, 2009, a
number of people congregated at a house in Colton, occupied by Jane Doe 3, her sister Jane
Doe 2, and Doe 3’s children. The sisters
socialized with members of Eastside Colton as well as with members of Northside
Colton. The people at the house that
night included members of both gangs.
The two gangs were sometimes at odds and sometimes on friendly terms.
In
September 2009, Daniel Rivera, an Eastside Colton member known as “Clumsy,†was
murdered. Colton police believed that a
Northside Colton member named Michael Montes, or “Red,†had killed Rivera, but
as of the date of defendant’s trial, Montes had not yet been charged with
Rivera’s murder. Defendant was known to
Colton police as a member of Eastside.
He used the moniker “Stomps†or “Stomper.†There was a tribute area in the living room
of Doe 3’s house, commemorating Rivera. The tribute area had a photograph of Rivera, a
photograph of defendant, and photograph of defendant standing with Doe 3. The people depicted in the photographs were
throwing gang signs. Photos of defendant
and others throwing Eastside gang signs were also found on defendant’s cell
phone after his arrest, as were photographs of a memorial for Rivera and of
Rivera’s gravesite.
On the night of December 12, 2009,
defendant was at Doe 3’s house. Doe 3
had known him for about two months. She
knew him as “Tito†or “Stomps.†Doe 2
also knew defendant and saw him at the house that night. Alex Alaniz, a Northsider known as “Crooks,â€
arrived at the house around 4:30 a.m.
Doe 3 had met him only one time before. Earlier in the evening, a Northsider called
“Bala†had introduced himself to defendant in a rude way. Doe 3 didn’t want trouble, so she asked Bala
to leave. Bala said he was going to
return with Crooks and Smokey.
Jane Doe 1, who was affiliated with
Northside Colton, drove Alaniz and a Northsider called “Risky†to Doe 3’s
house. Shortly after Alaniz entered the
house, defendant asked Alaniz to go outside with him. Defendant apparently felt disrespected about
something, and he wanted to go outside and “make sure everything was
square.†Frankie Fernandez, a Northsider
known as “Frankie Boy,†also stated that there was tension between Alaniz and
defendant, whom he identified as “Tito.â€
Doe 3 saw them walk out the door and almost immediately heard
gunshots. She ran outside and saw Alaniz
on the ground. Alaniz said “Tito†shot
him.
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Doe 1 called 911.
Alaniz died of a gunshot wound to the
chest. Empty nine millimeter shell
casings and one live nine millimeter bullet were found in the vicinity of
Alaniz’s body. No weapon was ever
found. However, Doe 1 heard a sound
consistent with racking a semiautomatic pistol just as defendant and Alaniz
walked out the door, and the bullets were consistent with ammunition used in
semiautomatic pistols. Defendant’s cell
phone contained a photograph of him holding a semiautomatic pistol.
LEGAL ANALYSIS
DEFENDANT’S
RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL WAS NOT VIOLATED
A criminal defendant has a constitutional
right to the effective assistance of trial counsel. In order to establish a claim of ineffective
assistance of counsel, or IAC, the defendant has the burden of demonstrating
that his trial attorney failed to act in a manner to be expected of a
reasonably competent attorney acting as a diligent advocate. The defendant must also show that it is
reasonably probable that the outcome of the trial would have been more
favorable in the absence of his attorney’s failings. (Strickland
v. Washington (1984) 466 U.S. 668, 687-688, 691-694.)
We first address the standard of
review. The claim of IAC was first asserted
in defendant’s motion for a new trial.
The Attorney General asserts that because a trial court’s denial of a
motion for new trial is reviewed on appeal for abuse of discretion, abuse of
discretion is an appropriate standard for review of defendant’s IAC claim. The case she relies on, however, is a
People’s appeal from an order granting a
new trial on grounds of ineffective assistance of trial counsel. (People
v. Callahan (2004) 124 Cal.App.4th 198, 201.) In People
v. Ault (2004) 33 Cal.4th 1250 (Ault),
the California Supreme Court held that while abuse of discretion is the
standard of review for an order granting a new trial motion, different
considerations may apply to appellate review of an issue which was
unsuccessfully raised in a new trial motion.
The court noted that there are two lines of authority, some applying
abuse of discretion to orders denying new trial motions, and others applying de
novo review. (Id. at pp. 1260-1263.) The
court discussed the reasoning underlying the latter: First, unlike an order granting a new trial,
an order denying a new trial finally disposes of a party’s rights. (Id.
at p. 1261.) Second, the order denying a
new trial is not independently appealable.
Because the denial may be reviewed only on appeal from the final
judgment, article VI, section 13 of the California Constitution obliges the
appellate court to conduct an independent examination of the record to
determine whether a miscarriage of justice occurred. (Id.
at pp. 1261-1262.) “As in any appeal from a final judgment, the
reviewing court must determine for itself whether errors denied a fair trial to
the party against whom the judgment was entered.†(Id.
at p. 1262.) Finally, it would be anomalous “to apply more
deferential review to a claimed error affecting the fairness of the judgment
simply because the complaining party moved unsuccessfully for a new trial on
the same ground in the court below.†(
The court did not resolve the split of
authority concerning orders denying new trial motion; the issue in
discretion in granting a new trial. (
supra, 33 Cal.4th at p. 1255.)
Accordingly, the court’s discussion of the standard applicable to denial
of new trial motions is dictum. In
court held that when a criminal defendant appeals the denial of his or her new
trial motion based on juror misconduct, the appellate court must independently
review the trial court’s conclusion that no prejudice arose from the misconduct
as a mixed question of law and fact. (
persuasive authority that we must review the denial of defendant’s new trial
motion independently as a question of mixed law and fact, just as we would if
the IAC claim was not first raised in a motion for new trial. Although we give deference to the trial
court’s factual findings, if any, if they are supported by substantial evidence,
both the performance and prejudice prongs of IAC are mixed questions of law and
fact which are predominantly legal.
Accordingly, we review them independently. (In re
Alcox (2006) 137 Cal.App.4th 657, 666; People
v. Mickey (1991) 54 Cal.3d 612, 649; Strickland
v. Washington, supra, 466 U.S. at
p. 698.) Here, it is undisputed that
trial counsel conducted at most a limited investigation into the areas
defendant asserts on appeal as the basis for his IAC claim. Accordingly, we will address only whether his
conduct fell below the applicable standard of performance and whether any act
or omission was prejudicial. (
691-694.)
to Investigate/Call Angel Enriquez as an Alibi Witness
In his new
trial motion, defendant asserted that Angel Enriquez could have testified that
defendant’s head was not shaved at the time of the murder. This could have been sufficient to raise a
reasonable doubt that defendant was the killer, he asserted, because all of the
witnesses described the killer as bald.
On appeal, defendant asserts that his trial attorney’s performance was
deficient because he failed to interview Enriquez and was therefore unable to
establish that defendant’s head was not shaved the night of the homicide.
Even if counsel should have interviewed
Enriquez as part of his trial preparation, his failure to do so was not
prejudicial. First, it is not the case
that multiple witnesses described the shooter as bald. On the contrary, only Doe 1 described the
person who apparently shot Alaniz as bald, and as we discuss below, her
ultimate identification of defendant did not rest on the question of
baldness. Neither Doe 2 nor Doe 3
described the shooter as bald. Frankie
Fernandez described seeing a bald person present at the house, but he did not
see who went out the door with Alaniz and did not see who shot Alaniz. Accordingly, he did not describe the shooter
as bald. He also said that the “bald
one†was still at the house after the shooting.
Second, the witnesses who identified
defendant did so on the basis of their prior knowledge of him. Doe 1 told Detective Wilson that she saw a
bald man with a gun in his hand walk out of the house behind Alaniz shortly
before she heard the shots. She claimed
not to know who it was, but during a break in the interview, Detective Wilson
overheard her telling a friend on the phone that she knew who it was, that she
didn’t know his name but that she would know him if she saw him. After the interview resumed, she identified
defendant’s photograph in a photo lineup as one of two people who might have
been the man with the gun. She also
identified defendant at trial as the man who walked past her with a gun shortly
before the shooting occurred.
Similarly, Doe 3’s identification of defendant
as the person who left the house with Alaniz seconds before the shots were
fired was based on her acquaintance with defendant, not on whether he had hair
that night. Finally, Frankie Fernandez
told Detective Wilson that there was tension between “Tito†and Alaniz that
night. He, Doe 1 and Doe 3 all
identified defendant’s photograph in a photo lineup as the person they were
talking about.
Because baldness was not a factor in
identifying who shot Alaniz, there is no reasonable probability that Enriquez’s
testimony would have altered the outcome of the trial in defendant’s
favor. Accordingly, defendant has failed
to meet his burden of demonstrating that his attorney’s failure to interview
Enriquez was prejudicial. (
U.S. at pp. 691, 693-694.)
Allegations/Motive Evidence and Third-Party Culpability.
Defendant also contends his trial
attorney failed to provide competent representation because he “fail[ed] to
attack the State’s gang expert and the prosecution’s notion that this homicide
was a gang retaliation†and failed to present evidence that Paul Bustamante,
aka Risky, might have been the shooter.
He first contends that if trial counsel
had investigated the prosecution’s theory that defendant killed Alaniz in
retaliation for the murder of his friend Clumsy by “Red†Montes, counsel would
have learned that defendant and Montes were friends and bore each other no
animosity. Trial counsel conceded that
he did not follow up when defendant informed him, immediately before closing
arguments, that he and Montes were friends.
However, he testified that he believed he must have discussed the
retaliation theory with defendant before and during the trial, and that
defendant had never previously mentioned that he and Montes were friends. In any event, he did not believe that he
would have pursued that angle because it would have connected defendant to the
“gang life,†and he had done everything he could to minimize defendant’s gang
involvement.
We cannot say that it was an unreasonable
tactical decision to attempt to portray defendant as being only peripherally
involved in Eastside Colton, in light of the prosecution’s retaliation theory.
Moreover, defendant’s alleged friendship with Montes may explain why
defendant did not kill Montes to retaliate for Clumsy’s murder, but it has no
relevance to whether defendant killed Alaniz, a Northsider, to retaliate
against Northside Colton for the killing of his friend. Because it is not reasonably probable that
Montes’s testimony would have altered the outcome in defendant’s favor, any
failure by trial counsel to investigate Montes as a possible defense witness
was not prejudicial. Moreover, the
parties stipulated that Montes’s attorney had said that Montes would assert his
Fifth Amendment privilege if he were called to testify. Trial counsel had testified that he would
have expected that result if he had called Montes to testify about his
friendship with defendant. Accordingly,
counsel’s failure to investigate was not prejudicial for this reason as well.
Defendant
next asserts that trial counsel should have investigated a fight which took
place the day before the killing at a bar called Linko’s. In the new trial motion, defendant asserted
that Alaniz was involved in that fight and that Paul Bustamonte, aka “Risky,â€
was involved as well. Bustamonte was at
Doe 3’s house the night of the murder.
Defendant contended that trial counsel should have investigated
Bustamante’s involvement because it would give Bustamante a motive for killing
Alaniz.
Trial counsel was aware that the fight
took place but did not investigate further once he was told by the police that
there was no security camera video of the fight. However, he explained that he chose not to
pursue a third-party culpability theory because several people at the house who
knew defendant said that defendant shot Alaniz or said that they saw him walk
out of the house with a gun. Again, we
cannot say that this was an unreasonable tactical choice. Doe 1 and Does 3’s testimony and/or
statements to police were compelling evidence that defendant shot Alaniz, and
Bustamante’s involvement in a fight with Alaniz would do little to cast doubt
on their testimony. Moreover, defendant
did not provide any evidence that Bustamante was involved in the fight.
The motion states that the “defense is informed and believes that there
was evidence obtained by the investigating agency of a fight that occurred
hours before the murder between†Alaniz and Bustamante, but defendant did not
introduce any evidence at the hearing to support that assertion. It is arguable that trial counsel should have
investigated the possibility that Bustamante had a motive to kill Alaniz, but
his failure to do so cannot be found to be prejudicial unless there is some
reason to believe that the investigation would have turned up admissible
exculpatory evidence.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting
P.J.
We concur:
RICHLI
J.
MILLER
J.
statutory citations refer to the Penal Code unless another code is specified.
trial, Doe 3 denied hearing this conversation.
Colton police detective Wilson testified that Doe 3 described the
conversation to him when he interviewed her after the shooting. Wilson also related what Fernandez had told
him during their interview. Fernandez
was completely uncooperative when he testified at trial, and his testimony was
inconsistent with what he had told Wilson.
A video of Fernandez’s interview was played for the jury.
