P. v. Thomas
Filed 1/9/13 P.
v. Thomas CA1/4
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and
Respondent,
v.
ANTIONE THOMAS,
Defendant and
Appellant.
A132523
(Solano County
Super. Ct. Nos.
FCR241350
& FCR271880)
In re ANTIONE
THOMAS,
on Habeas Corpus.
A134344
I.
Introduction
Antione Thomas (defendant) appeals from the
single judgment entered following jury trials in two separate unrelated
cases. In the first case, a jury convicted defendant of one count of
(Health & Saf. Code, § 11351.5).
In the second case, a jury convicted defendant of one count
of second degree robbery (Pen. Code, § 211) with a further finding that he
had personally used a handgun in the commission of the offense (Pen. Code,
§§ 12022.5, subd. (a)(1), 12022.53, subd. (b)). In each case, following a bifurcated trial,
the jury found defendant had at least four prior strike convictions (Pen. Code,
§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Defendant was sentenced for both cases in a
single proceeding, and was given a total state
prison term of 60 years to life.
On appeal,
defendant contends: (1) the court abused its
discretion in denying his request to continue the trial so that he could
conduct additional discovery under Pitchess
v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)
(2) he was denied effective assistance of counsel due to counsel’s failure
to subpoena a percipient witness in the drug case; (3) the court
improperly overruled hearsay objections to information allegedly contained on
defendant’s cell phone which the prosecution used as evidence of drug sales;
(4) he was denied effective assistance of counsel due to counsel’s failure
to competently present a motion to dismiss his prior strike convictions under
529-530 (Romero); and (5) the
court abused its discretion in denying two motions for substitute counsel made
by defendant pursuant to People v.
Marsden (1970) 2 Cal.3d 118, 123 (Marsden).
Defendant has also
filed a petition for writ of habeas corpus,
in which he alleges that his trial counsel rendered
grounds. Many of the claims made in
defendant’s petition for writ of habeas corpus relate to and overlap with his
contentions on appeal. Therefore, on our
own motion, we order the petition consolidated
with the appeal for purposes of resolution by a single
opinion. We reject his contentions on
appeal and affirm the judgment. We also
deny the petition because defendant has failed to make a
that he is entitled to relief.
II.
Facts and Procedural History
A. Drug Case—(Trial Court Case No. FCR241350)
On
April
6, 2007, at approximately 9:00 p.m.,
Fairfield
police officers Justin Gutierrez and Detective Apley were on patrol walking
around an apartment complex where there had been numerous complaints of
car parked in a carport with people inside of it. The officers saw several people walk up to
the car, stay for about three minutes, and then leave.
The
officers approached the car and knocked on the front passenger window. Warren Ingram, who was sitting in the front
passenger seat, opened the door. The
officers smelled a strong odor of marijuana coming from the inside the
car. Nakeyia Washington
was sitting in the driver’s seat.
Defendant was sitting in the back seat.
Several
other officers arrived at the scene.
Officer Gutierrez asked defendant, who was sitting in the back seat, to
step out of the vehicle. Police found a
Mervyn’s bag in the back seat of the car close to where defendant was
sitting. Inside the bag, police found a
large sandwich baggie containing chopped up pieces of suspected cocaine base, a
baggie containing suspected marijuana, and some female clothing. The larger rocks from the large baggie were
tested and confirmed to be cocaine base.
They were worth approximately $400 to $500.
Defendant
was arrested and searched. The officers
found a large sandwich baggie containing 26 individually wrapped rocks in the
pocket of defendant’s pants. This
packaging was consistent with the manner in which narcotics are commonly
packaged for sale. Several of the rocks
were tested and confirmed to be cocaine.
Each rock was worth approximately $20.
Police also found a pill bottle with 27 pills of suspected Ecstasy, $414
in cash, and a cell phone in defendant’s possession. Defendant’s cell phone contained a list of
names with dollar amounts next to them.
Pay-owe sheets are commonly kept on cell phones so that drug dealers can
keep track of who has already paid and who owes them money.
Detective
Frank Piro, an expert on possession of cocaine base for sale, opined that someone
who possessed 26 individually wrapped rocks of cocaine, several larger rocks,
$414 in cash, and a cell phone with pay-owe sheets on it, possessed the cocaine
for the purpose of selling it.
B. Robbery Case—(Trial Court Case No. FCR271880)
On
October
28, 2009, at approximately 11:00 a.m.,
defendant and another man robbed the Chuck E. Cheese restaurant in Fairfield,
California. The robbery was captured on a surveillance
video, which was played for the jury.
Walter
Garrett, who was working just inside the front door, saw the robbers enter the
restaurant. One of the men pulled out a
gun. They directed Mr. Garrett to the
back register where Cecilia Pizano was working as a cashier, and made Mr.
Garrett lay face down on the ground.
Ms.
Pizano saw the robbers enter the restaurant.
One of the men pointed a gun at Ms. Pizano. They told her to open the cash register. Ms. Pizano told the men the register did not
yet have any cash in it. They told her
to get on the ground and threatened to kill her if she moved. Ms. Pizano lay face down on the ground as
directed.
Lo
Thao, the restaurant manager, was in the kitchen in the back of the restaurant,
when one of the robbers came in and told her to get down. While the man was pushing one of the other
workers to the floor, Ms. Thao used the opportunity to move toward the front of
the restaurant. A second man, whom she
later identified as defendant, was in the front. Defendant had a gun and told her to stop and
get down. Defendant asked her where the
money was. Ms. Thao, at gunpoint, went
with defendant into the back of the restaurant to the safe to retrieve the
money. He told her to put the money in a
cream-colored pillowcase that he had with him.
Ms. Thao complied, putting approximately $1,300 in the pillowcase. She gave the pillowcase back to defendant,
who ran to the front of the restaurant and then out of the restaurant with the
other man.
Officer
Gene Carter was in the area at the time of the robbery and, in response to a
dispatch call, went to where the Chuck E. Cheese restaurant backs up to a
residential area. He received
information that a pillowcase had been used in the robbery. Officer Carter found a pillowcase in some bushes
behind the Chuck E. Cheese. The
pillowcase looked like the one used in the robbery.
Detective
Steven Trojanowski investigated the robbery.
Within 30-40 minutes of the robbery, he watched the surveillance video
of the robbery. He talked to a “reluctantâ€
witness who gave him defendant’s name as a possible suspect. From the name, Detective Trojanowski got
defendant’s photograph. He believed the
photo matched one of the robbers in the surveillance video. Detective Trojanowski then went to the Extended
Stay America motel, which was next door to the Chuck E. Cheese. He showed the receptionist at the motel
defendant’s photograph and asked whether she had seen anyone matching his
description. The receptionist identified
defendant, who was staying in one of the rooms at the motel.
Detective
Trojanowski searched the motel room and found indicia with defendant’s name in
the room. He noticed there were two
pillows on the bed––one had a pillowcase on it, the other did not. There were three additional pillowcases in
the room, but they were freshly laundered and folded and appeared to have just
come off a maid’s cart. The motel used a
variety of pillowcases. Some of the
pillowcases found in defendant’s room were similar to the one found behind the
Chuck E. Cheese, but they were of varying colors and shapes.
Detective
Trojanowski showed Ms. Thao a photo lineup with six photos less than two hours
after the robbery. Ms. Thao identified
defendant as the man with the gun and pillowcase, who had directed her to the
safe. She also identified him at trial.
A
few days after the robbery, Officer Trojanowski brought Ms. Thao a second photo
lineup. That lineup had a picture of
another suspect believed to have committed the robbery with defendant. Ms. Thao was “positive†that no one from that
photo lineup had participated in the robbery.
The
defense introduced testimony from Donna Zimmerman, an employee, who began
working at the Extended Stay America motel two months after the robbery and who
had done laundry for the motel. She
testified that the pillowcase found behind the motel would not be put into a
motel room in the condition it was in because it was dirty and stained.
Dr.
Robert Shomer, an expert on eyewitness identification, testified for the
defense. Dr. Shomer testified regarding
the factors involved in eyewitness identifications. He described the various factors that can
reduce the accuracy of an identification, including stress, weapons focus,
cross-racial identification, and multiple individuals dividing attention. He testified that “[i]t’s well known that
eyewitness identification is . . . the least reliable means of
identification we have.â€
Dr.
Shomer also testified regarding the problems inherent in identification from
photo lineups. He testified that
physical lineups are more reliable than photo lineups because “many people look
more similar in pictures than they do in real life.â€
Defendant
was found guilty in both the drug case and the robbery case. On May 23, 2011, defendant was sentenced
to a total term of 60 years to life––25 years to life in the drug case, with a
consecutive term of 25 years to life in the robbery case and an additional 10
years for the gun use enhancement. The
sentence on the gun enhancement was stayed.
Defendant filed timely notices of appeal in both cases.
III.
Arguments on Appeal
A. The Trial Court Did Not Abuse Its Discretion
in Denying Defendant’s Request for a Continuance to Conduct Pitchess Discovery (Drug Case)
Defendant asserts
that the trial court abused its discretion when it denied his motion for a
continuance so that he could obtain Pitchess
information regarding Officer Gutierrez, one of the
arresting officers in his drug case. (
analyze this argument after setting forth the pertinent background information.
On June 26, 2007, the trial court
granted defendant’s Pitchess motion
for the confidential personnel records of several officers involved in the
investigation of the drug case, including Officer Gutierrez. After numerous continuances, the trial was
set for December 13, 2010, which was approximately three and a half years after
defendant’s original Pitchess motion
was granted.
On December 13, 2010, the day trial was set to commence,
defense counsel, Edward Cohen, filed a supplemental Pitchess motion,
seeking additional information from Officer Gutierrez’s personnel file. Attached to the motion was a
declaration by defense counsel, which stated that the defense expected to show
that Officer Gutierrez “engaged in fabricating evidence and falsifying
reports.†The declaration further stated
that defense counsel was “informed and believe[d] that Officer Gutierrez
engaged in these practices in Solano County case FCR277088, resulting in a
dismissal of that action and a successful parole violation defense.†Finally, the declaration stated that defense
counsel had just recently learned of this allegation on Friday, December 10,
2010, at approximately 4:00 p.m.
Defendant
also filed a motion to continue the trial to allow time to conduct additional
discovery under Pitchess. Attached to the motion was another
declaration by defense counsel stating that he was able to contact John Coffer,
who acted as defense counsel in Solano County Superior Court Case No.
FCR277088, on the preceding Friday before the Monday trial. Coffer had told him that “deliberate
inaccuracies were revealed in the reports written by Officer Gutierrez, leading
to a dismissal of that action and a subsequent parole violation defense.†Defense counsel further stated that the
information provided by Coffer was unknown to him before late afternoon on
December 20, 2010; that impeaching Officer Gutierrez in the drug case would be
essential to defendant’s defense; and that defendant was potentially facing a
third strike and a lengthy prison sentence, and it was imperative that all
reasonable efforts be made to prepare a thorough defense. The prosecutor, Terry Ray, opposed any
continuance, stating that the prosecution was “ready to go†and that the
witnesses were there and “ready to go.â€
The
court asked defense counsel whether he had pulled the court file in Solano County Superior Court Case No. FCR277088
to see whether anything in the case file indicated that the case had been
dismissed because Officer Gutierrez falsified evidence. Defense counsel stated he had not. The prosecutor then stated she had spoken to
Officer Gutierrez, who had no idea what defense counsel was talking about. The trial court passed on the matter so the
court file from Solano County case number FCR277088 could be pulled and
reviewed.
When
the case was reconvened, the court stated that it appeared from the file that
the information defense counsel had received from Mr. Coffer was “without a
factual basis.†The court further stated
that Mr. Kuo, the prosecutor who had handled the Solano County case, happened
to be in court that day and disputed Mr. Coffer’s representations. Mr. Kuo informed the court that the reason
the case was dismissed was because he could not prove the catalytic converter
that was allegedly tampered with was valued at over $400 in order to make the
charge a felony. The prosecutor in the
instant case, Ms. Ray, was also the attorney of record for the catalytic
converter case. She consulted her notes
and confirmed Mr. Kuo’s version of events.
In
rebuttal, defense counsel asserted that although his conversation with Mr.
Coffer had been “brief,†his understanding was that Mr. Coffer had reviewed a
DVD which pointed out inconsistencies between what was depicted on the DVD and
the report made by Officer Gutierrez.
Mr. Coffer had also told defense counsel that when the case went to the
parole board on a parole violation, no violation was filed due to “the
weaknesses and inconsistencies in the report.â€
The
trial court denied the motion to continue the trial as untimely and without
factual support. Specifically, the court
found as follows: “The motion to
continue is denied. It’s untimely. There’s no factual support for—at this late a
date to engage in some Pitchess process
when it’s based upon pure speculative information that was provided to [defense
counsel]. [¶] I understand why you
brought it, Mr. Cohen, and you’re certainly doing a fine job, but the true
facts of that case are, for whatever reason, not as Mr. Coffer related to
you. I have an officer of the court
telling me—two officers of the court telling me it was because it wasn’t $400
and he was on parole. . . .
[¶] I would note that the preliminary hearing in this matter—I’m
kind of embarrassed to say this, but luckily it hasn’t been in front of this
Court for this long, but August 14th of 2007 was the preliminary hearing
date. . . . And, you
know, we—in the United States, we have a due process right to a speedy trial,
and that applies in California certainly also to the defendant, but also to
complaining witnesses or whatnot, so we need to get this taken care of. [¶] The motion to continue is denied.â€
Defendant argues
that the trial court abused its
in order to conduct additional discovery under Pitchess. We disagree.
In criminal cases, continuances
are granted only upon a showing of good cause.
(Pen. Code, § 1050, subd. (e); People v. Jenkins (2000) 22
Cal.4th 900, 1037.) The trial
court has broad discretion to determine whether good
cause exists. (Ibid.) Such discretion,
however, “may not be exercised so as to deprive the defendant or his attorney
of a reasonable opportunity to prepare.
[Citations.]†(People v.
Sakarias (2000) 22 Cal.4th 596, 646.)
“To effectuate the constitutional rights to counsel and to due process
of law, an accused must . . . have a reasonable opportunity to
prepare a defense and respond to the charges.
[Citations.]†(People v.
Bishop (1996) 44 Cal.App.4th 220, 231.)
Although a defendant may be entitled to a continuance to conduct an
investigation to uncover exculpatory evidence, the speculative nature of what
is to be gained by a continuance may justify its denial. (See, e.g., People v. Gatlin (1989) 209 Cal.App.3d 31, 40-41.) The “[d]efendant bears the burden of
establishing that denial of a continuance request was an abuse of
discretion. [Citation.]†(People v. Panah (2005) 35 Cal.4th
395, 423.)
Under Pitchess, supra, 11 Cal.3d at
pp. 537-538, a defendant is entitled to discovery of a police officer’s
confidential personnel records if those files contain information that is
potentially relevant to the defense. (
a motion demonstrating good cause for the discovery which, if granted, results
first in an in camera court review of the records and
subsequent disclosure to the defendant of information “relevant to the subject
matter involved in the pending litigation.â€
(Evid. Code, § 1045, subd. (a).)
There is a “ ‘relatively low threshold’ †for
establishing the good cause necessary to compel in camera review by the
1019 (Warrick).) Nevertheless, a
defendant is not entitled even to an in camera review of police personnel files
unless he or she first “ ‘establish[es] a plausible
factual foundation’ †for the defense asserted. (Id. at p. 1025.) The defendant “must present . . . a
specific factual scenario of officer misconduct that is plausible
when read in light of the pertinent documents.
[Citations.]†(Ibid.) A scenario sufficient to establish a
have occurred. Such a scenario is
police misconduct that is both internally consistent and supports
the defense proposed to the charges.†(Id.
at p. 1026.)
“Trial courts
are granted wide discretion when ruling on motions to
discover police officer personnel records.
[Citations.]†(People v.
Samayoa (1997) 15 Cal.4th 795, 827; People
v. Hughes (2002) 27 Cal.4th 287, 330; People v. Lewis and Oliver
(2006) 39 Cal.4th 970, 992 [reviewing trial
only if the defendant demonstrates that the court abused
its discretion.
Reviewing the court’s ruling
based upon the record and argument presented at the time the motion to continue
the trial was made,
title="">[2]
we conclude that defendant has failed to carry his burden of showing the trial
court abused its discretion when it refused to grant a
continuance. While demonstrating good
cause requires a low threshold (Warrick, supra, 35 Cal.4th at p. 1019), defendant’s motion
failed to meet even that minimal level in presenting a “specific factual
scenario of officer misconduct. . . .†(Id. at p. 1025; see, e.g., People
v. Collins (2004) 115 Cal.App.4th 137, 151 [affirming denial of Pitchess
motion without in camera review where “defendant’s declaration merely made
general allegations of misconduct against [the officers] without alleging any
facts that provided reason to believe the misconduct had occurredâ€].) There was nothing whatsoever before the trial
court indicating the existence of a plausible factual foundation for counsel’s
allegation that Officer Gutierrez had made false statements in investigating
another case. In fact, the facts before
the court uniformly pointed to the opposite conclusion.
Specifically, the trial court
obtained the court file from Solano County Superior Court Case No.
FCR277088, which was allegedly dismissed because
Officer Gutierrez had fabricated evidence.
The file, however, contained nothing to support these allegations. Moreover, the prosecutor who handled the case
told the court that the case had been dismissed not because of any allegedly
false statements by Officer Gutierrez, but because the prosecution could not
prove the $400 value of the catalytic converter in order to make the felony
count.
Importantly, in deciding a
continuance motion, the court should consider “ ‘not only the benefit
which the moving party anticipates but also the likelihood that such benefit
will result, the burden on other witnesses, jurors and the court and, above
all, whether substantial justice will be accomplished or defeated by granting
of the motion.’ †(
counsel who were involved in the case and the court’s independent review of the
case file, the court could reasonably conclude that any potential benefit to
defendant in re-opening the Pitchess inquiry
was both speculative and lacking in factual support. (See People v. Thompson (2006) 141
Cal.App.4th 1312, 1318-1319 [courts should “apply common sense in
make determinations based on a reasonable and realistic
assessment of the facts and allegationsâ€].)
Additionally, in denying defendant’s motion to continue the
mindful of the fact that the drug case had been pending against defendant for
over three years, and that defendant had the benefit of counsel during that
time to pursue discovery and
prepare his defense diligently––including receiving information from Officer
Gutierrez’s personnel file under Pitchess
three years earlier. Defendant’s
significant disruption to the witnesses and attorneys who had appeared, as
scheduled, and were ready to proceed. The court was keenly aware of the statutory mandate to
expedite proceedings to the “greatest degree that is consistent with the ends
of justice.†(Pen. Code, § 1050,
subd. (a).) The record here reflects the
trial court resolved defendant’s request for a continuance consistent with the
realization that not only defendant, but the witnesses and the prosecution have
a statutory right to an “expeditious disposition.†(Ibid.) For all the foregoing reasons, no abuse of
discretion has been demonstrated.
B.
Defense Counsel did not Render Ineffective Assistance of Counsel by
Failing to Subpoena Nakeyia Washington (Drug Case)
Defendant next argues his counsel
was ineffective for failing to subpoena Nakeyia
Washington, who was also in the car when defendant was arrested on the drug
charge. Defendant characterizes Ms
Washington as “a credible and percipient witness†whose testimony,
if it had been properly secured by issuing a subpoena, would have contradicted
Officer Gutierrez’s testimony “on several significant points.â€
After the first defense witness had
finished testifying, defense counsel told the court that he wanted to call Ms.
Washington, but that she was nine months pregnant and in the hospital at the
time “having contractions.†The court
asked whether Ms. Washington was under subpoena. Defense counsel responded that she was
not. He explained that the defense had
been trying to reach her and was unsuccessful until the previous weekend.
The
court asked for an offer of proof from the defense, and defense counsel recited
the anticipated testimony of Ms. Washington.
with the manner in which it contradicts Officer Gutierrez’s testimony, is
summarized as follows: According to Ms.
Washington, she and the other occupants were in the car for less than two
minutes before the police approached the vehicle, and during that time, no one
approached it. This contradicts Officer
Gutierrez, who testified that before he approached the vehicle, he observed
several people walk up to both sides of the vehicle, stay for several minutes,
and then leave. According to Ms.
Washington, four officers originally approached the vehicle, which contradicted
Officer Gutierrez that only two officers approached the vehicle. According to Ms. Washington, there was no
odor of marijuana in the vehicle, which contradicted Officer Gutierrez’s
testimony that there was a strong odor of marijuana inside it. Finally, according to Ms. Washington, when
defendant was searched, his pants and underwear were removed, which would
contradict Officer Gutierrez’s testimony that none of defendant’s clothes were
removed when he was searched.
Based
on this offer of proof, the trial court found the defense had not demonstrated
good cause to continue the trial, noting, among other things, that the
anticipated areas of impeachment were, at best, on collateral issues and that
the trial had already been set and continued numerous times.
To
prevail on an ineffective assistance of counsel claim, defendant must show that
his counsel’s performance fell below professional standards of reasonableness,
and that there is a reasonable probability that but for the deficient
performance, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466
U.S. 668, 687, 694 (Strickland).) A judgment will be reversed “on the ground of inadequate
counsel ‘only if the record on appeal affirmatively discloses that counsel had
no rational tactical purpose for his act or omission.’ [Citations.]â€
(People v. Frye (1998)
18 Cal.4th 894, 980, overruled on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) “To prevail, defendant must overcome the
strong presumption that counsel’s actions were sound trial strategy under the
circumstances prevailing at trial.
[Citations.]†(People v.
Freeman (1994) 8 Cal.4th 450, 498.)
The “ ‘courts should not second-guess reasonable, if difficult,
tactical decisions in the harsh light of hindsight.’ [Citation.]â€
(People v. Brodit (1998) 61 Cal.App.4th 1312, 1335-1336 (Brodit).)
While defense
counsel clearly wished to use Ms. Washington’s testimony at trial, as
demonstrated by his request for a continuance in order to secure her
attendance, the record nevertheless provides a tactical reason for defense
counsel’s failure to subpoena her. On March 22, 2011, after defendant had been convicted in the drug
case, he complained in a Marsden
hearing that defense counsel had failed to subpoena
Ms. Washington. When called upon to
respond, defense counsel explained that he decided not to subpoena Ms.
Washington based on the advice of the defense investigator. The investigator thought that if Ms.
Washington were subpoenaed, she might feel like she was an adversary
witness. The investigator thought that
it would be better if Ms. Washington felt like she was there “on her own
volition.â€
Thus, based on the investigator’s
assessment of the situation, defense counsel made a reasonable tactical
decision not to subpoena Ms. Washington that should not be second-guessed on
appeal. (Brodit, supra, 61 Cal.App.4th at
pp. 1335-1336.) Based on the
information he was given, defense counsel may have reasonably decided that
securing Ms. Washington’s attendance at trial by serving her with a subpoena
carried serious risks for the defense, including Ms. Washington’s apparent
reluctance to testify in court if she believed her testimony was being
compelled. Defense counsel could have
reasonably believed that his best chance of eliciting favorable and material
testimony for the defense would be to allow Ms. Washington to appear at trial
of her own volition.
Although in hindsight counsel’s
not every tactical failure amounts
to ineffective assistance of counsel. (See
People v. Scott (1997) 15 Cal.4th 1188, 1213 [“Although counsel’s
tactics were unusual . . . given the limited options he faced, we
cannot say on direct appeal they were unreasonableâ€].) Because counsel had a rational
to subpoena Ms. Washington was
within the range of reasonable
competence. Therefore, defendant’s claim
of ineffective assistance of counsel on this ground fails on its merits. (People v. Fosselman (1983) 33 Cal.3d
572, 581 [on appeal, a conviction will be reversed on the ground of
discloses that counsel had no rational tactical purpose
for his act or omissionâ€].)
Additionally,
a defendant claiming ineffective assistance
of counsel has the burden of showing
both deficient performance and prejudice. (People v. Ledesma (1987) 43 Cal.3d
171, 217 (Ledesma); People
v. Mendoza (2000) 78 Cal.App.4th 918, 924.) Prejudice must be affirmatively proved. “ ‘It is not enough for the defendant to
show that [counsel’s] errors had
some conceivable effect on the outcome of the
proceeding. . . . The
defendant must show that there is a reasonable
probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different. A reasonable
probability is a probability
sufficient to undermine confidence in the outcome.’ [Citations.]â€
(Ledesma, supra,
43 Cal.3d at pp. 217-218.)
In this case, the
missing evidence that Ms. Washington allegedly would have
provided for the defense does not directly attack Officer Gutierrez’s veracity
on the critical evidence supporting the drug charge––that when defendant was
arrested and searched, he was found to have 26
individually wrapped pieces of rock cocaine in his pants pocket along with $414
in cash and a cell phone containing evidence of drug transactions. Given the strength of this evidence,
defendant has not demonstrated a reasonable probability that he would have been
acquitted of the charge of possession for sale of cocaine had Ms. Washington
been subpoenaed and had she testified in conformance with the offer of
proof. For all these reasons,
appellant’s claim of ineffective assistance of counsel is without merit.
C. The Trial Court
Did
Not Abuse its Discretion in
Admitting
Evidence Regarding Drug Sales Found on Defendant’s Cell Phone (Drug Case)
Defendant
claims the trial court improperly overruled defense counsel’s hearsay objection
to Officer Gutierrez’s testimony about entries on defendant’s cell phone which
Officer Gutierrez deemed to be evidence that defendant was selling drugs.
Officer
Gutierrez testified that a cell phone was found in defendant’s front pocket
with “pay-owes†in it. Defense counsel
raised a lack of foundation objection.
The trial court sustained the objection.
After the prosecutor elicited testimony from Officer Gutierrez regarding
his training and experience in looking for evidence on cell phones, the
following exchange occurred:
“[Prosecution]: Okay.
So you go into the cell phone, and what did you find?
“A. I found individual names—
“[Defense
Counsel]: Objection. Hearsay.
“The
Court: Overruled.
“[Officer
Gutierrez]: Individual names, and next
to it would be a dollar amount, like $20, $30.
“[Prosecution]: Did it have a dollar sign?
“A. Yes.
“Q. Okay.
Now, that cell phone was booked into evidence?
“A. It’s currently in our evidence warehouse.
“Q. It’s not accessible?
“A. No.
“Q. Okay.
Now, do you remember how many—approximately how many names with dollar
amounts were next to it?
“A. No, ma’am, I don’t.
“Q. Okay.
Was it more than one?
“A. Yes.
“Q. More than five?
“A. Absolutely.â€
On
cross-examination, defense counsel clarified that although the cell phone had
not been brought to trial or entered into evidence, it could be requested and
accessed from evidence storage.
On appeal, defendant claims
“Officer Gutierrez’s testimony regarding the contents of the cell phone should
have been excluded as hearsay, and as a violation of the secondary evidence rule.†A similar argument was considered and rejected by the court
in People v. Harvey (1991) 233 Cal.App.3d
1206. In Harvey, the defendants were convicted of
conspiracy to sell or transport cocaine, conspiracy to possess cocaine for
sale, and possession for sale of cocaine. (Id. at p. 1209.) On appeal, the defendants argued the trial
court erred in admitting into evidence pay-
at pp. 1219-1220.) However, the
trial court had indicated the evidence was
but as circumstantial evidence of
cocaine sales and a conspiracy. (Id.
at p. 1220.)
violation, explaining: “If the testimony was received to prove these
transactions occurred in the manner stated, it was hearsay. However, if the testimony was received, as
the court indicated, as circumstantial evidence
of sales of cocaine or a conspiracy to sell or distribute cocaine, it was
(Harvey, supra, 233 Cal.App.3d at p. 1220.)
In Harvey, the evidence was properly admitted
for a non-hearsay purpose––namely, as circumstantial
involving cocaine sales. Consequently,
there was no error. (Harvey, supra, 233 Cal.App.3d at
pp. 1222-1223.) Similarly, in the instant case, the
the truth of any particular transaction recorded on the cell phone. The evidence was
admitted as circumstantial evidence that
evidence was not hearsay. (See also
Cal.App.4th 1063, 1070 [evidence of drug transaction on
pager was not hearsay].)
It
appears that in briefing this issue, defendant is adding an argument that was
not made below. Defendant asserts for
the first time on appeal that “the admission into evidence of Officer
Gutierrez’s vague testimony as to what the cell phone contained, without the
cell phone itself being offered into evidence, was so unfair as to deprive
[him] of due process and a fair trial as guaranteed by the Fourteenth Amendment
to the United States Constitution and Article 1, Section 7 of the California
Constitution.†Specifically, defendant
argues Officer Gutierrez’s testimony about the contents of his cell phone
should also have been excluded under the secondary evidence rule.
Defendant
forfeited this claim by failing to raise it in the trial court. The failure to object to a claimed
evidentiary error on the same ground asserted
on appeal results in a forfeiture of the issue on appeal. (See, e.g., People
v. Dykes (2009) 46 Cal.4th 731, 756.)
D. Defendant Was Not Denied the Effective
Assistance of Counsel in Connection with the Romero Motion
Defendant asserts he was denied
effective assistance of counsel due to his defense counsel’s “failure to
competently present a Romero motion.†Before the sentencing
hearing, defense counsel filed a motion requesting the court to exercise its
discretion under Penal Code section 1385 to dismiss one of defendant’s
“due to the deficient manner in which his attorney presented the issue, he was
denied a meaningful opportunity to have the court consider his
By
way of background, after defendant was convicted in the drug case on December
14, 2010, the jury found defendant had seven prior strike convictions. After defendant was convicted in the robbery
case on February 3, 2011, the jury found defendant had four prior strike
convictions. All of defendant’s prior
strike convictions arose from the same 1995 Solano County case, in which
defendant was convicted of one count of robbery with a gun enhancement and six
counts of assault with a firearm.
However, the record on appeal contains scant
information about the 1995 offense, nor does the record establish the relationship between
defendant’s convictions, aside from the fact they were charged in a
sheds a little light on the facts underlying defendant’s prior strike
convictions. The record in that case
includes a statement, apparently in defendant’s own handwriting, as
follows: “Me and another person robbed
the Sanwa Bank and several employees were assaulted during it, on August 17,
1995.â€
On the morning of May 23, 2011, the
date appellant’s case was scheduled for sentencing, defense counsel filed a Romero motion asking the
court to exercise its discretion to dismiss one of appellant’s prior strike
convictions in his drug case. Basically,
the motion identified a circumstance—the closeness of the connection
between the strike conviction offenses—that the court could consider when
deciding whether to dismiss a strike prior.
(People v. Scott (2009)
179 Cal.App.4th 920, 931; see People v. Benson (1998) 18 Cal.4th 24, 36, fn. 8.)
The deficiencies in the Romero
motion filed by defense counsel are
apparent and need not be belabored here.
Obviously, defense counsel prepared the motion by cutting and pasting
from another document prepared not by a defense attorney but by a prosecuting
attorney. Therefore, defendant’s
argues that his prior convictions were not
so closely connected as to warrant striking some of those convictions. The motion also makes arguments using facts
from another case, involving the robbery of a convenience store where the clerk
was shot, that are completely unrelated to the facts of this case. At the hearing on the Romero motion, defense counsel stated that due to “sort of a
typographical computer error,†one paragraph of the motion had accidentally
been included, and requested the court to strike that paragraph. But, as defendant points out, once the court
struck that paragraph, the motion “offered no evidence or information about the
prior case, and did not provide any factual basis for the assertion that the prior
convictions were inextricable or closely connected.â€
In
ruling on defendant’s Romero motion,
the court noted that it was “well-aware of [defendant]’s entire situation here
and all his priors.†The court stated:
“I can’t make a finding that it would be deemed outside the three strikes, since
that’s the entire scheme and spirit, in whole or in part.â€
Once again,
in claiming
ineffective assistance of
objective standard of reasonableness under prevailing professional norms; and
(2) the deficient performance resulted in prejudice. (Strickland, supra, 466 U.S. at p. 687; see
also People v. Williams (1988) 44 Cal.3d 883, 937 (Williams) [recognizing it is the defendant’s
burden to establish both deficiency and prejudice].)
Therefore, even though defendant has a
legitimate complaint about the cobbled-together Romero motion counsel filed on his behalf, prejudice still must be
shown. A showing of prejudice requires
defendant to demonstrate “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.†(Strickland, supra, 466 U.S. at p. 694.) In establishing prejudice, the defendant
“must carry his burden of proving prejudice as a ‘demonstrable reality,’ not
simply speculation as to the effect of the errors or omissions of counsel. [Citation.]â€
(Williams,
In order to grant a Romero motion
and depart from the legislative determination of the appropriate punishment for
repeat felons, the trial court “must consider whether, in light of the nature
and circumstances of his present felonies and prior serious and/or violent
felony convictions, and the particulars of his background, character, and
prospects, the defendant may be deemed outside the scheme’s spirit, in whole or
in part, and hence should be treated as though he had not previously been
convicted of one or more serious and/or violent felonies.†(People v. Williams (1998) 17 Cal.4th
148, 161.) This is a very “stringentâ€
standard because the statutory scheme “carefully circumscribes the trial
court’s power to depart from [the three strikes law sentencing] norm[.]†(People v. Carmony (2004) 33 Cal.4th
367, 377-378.)
Defendant’s
claim for ineffective assistance of counsel fails
because defendant has failed to show any likelihood he would have received a
reduction in his sentence if his counsel had filed a different, more carefully
prepared, Romero motion. He does not direct our attention to anything
about “the particulars of his background, character, and prospects†that are
favorable such that he should be deemed outside the spirit of the three strikes
law and treated as though he had not previously been convicted of numerous
serious and violent felonies. (People
v. Williams, supra,
17 Cal.4th at p. 161.)
We also
emphasize that there is nothing in this record to indicate that the trial court
was misled in any respect by the defective Romero
motion. To the contrary, the
law and the facts of appellant’s case were known to and considered by the trial
court before ruling on appellant’s Romero motion.
Before denying defendant’s
priors,†and based on defendant’s record, the court was unable to “make a
finding that [he] would be deemed outside the three
strikes . . . .†Given the number
of crimes defendant committed, their seriousness, the manifest difference in
character of the crimes, and all the other factors applicable to a
trial court abused its discretion in determining that
defendant did not fall outside the spirit of the three strikes
law.
Consequently, we
reject defendant’s claim that the success of his Romero motion was doomed due to his trial counsel’s omissions. Instead, the success of his Romero motion was
doomed due to the nature of the current convictions, his
Because
defendant has failed to show there is a reasonable probability that the court
would have reached a different result on his Romero motion if defense
counsel had advocated for defendant more effectively, we reject his claim of
ineffective assistance of counsel.
E. The Trial Court Did
Not Abuse its Discretion in Denying Defendant’s Marsden Motions (Both Cases)
Defendant next
contends the court should have granted his two Marsden
motions to remove his defense counsel and appoint another
attorney. (See Marsden, supra, 2 Cal.3d
at p. 123.) Both of defendant’s
tried and convicted in both cases but before he was sentenced. Defendant contends “the court abused its
discretion in denying the Marsden
motions because the record clearly showed that [defense counsel] ‘failed to
perform with reasonable diligence and that, as a result, a determination more
favorable to the defendant might have resulted in the absence of counsel’s
failings.’ [Citation.]â€
We begin with the
well-settled rules for a Marsden motion as set out
by our Supreme Court in People v. Ortiz (1990) 51 Cal.3d 975, 980,
footnote 1. “In [
deprived of his constitutional right to the effective assistance of counsel
when a trial court denies his motion to substitute one appointed counsel for
another without giving him an opportunity to state the reasons for his request. A defendant must make a sufficient showing
that denial of substitution would substantially impair his constitutional right
to the assistance of counsel [citation], whether because of his attorney’s
incompetence or lack of diligence [citations], or because of an irreconcilable
conflict [citations]. We require such
proof because a defendant’s right to appointed counsel does not include the
right to demand appointment of more than one counsel, and because the matter is
generally within the discretion of the trial court. [Citation.]â€
We clarify the standard of review
because, at one point in defendant’s brief, he claims that “[r]eversal is
required unless the record shows beyond a
reasonable doubt that appellant was not prejudiced by the denial of his
(Italics added.) That is not the
correct standard. On appeal, we review a
trial court’s decision denying a Marsden
motion to relieve appointed counsel under the deferential abuse of discretion
standard. (People
v. Taylor (2010) 48 Cal.4th 574, 599; People v. Earp (1999) 20 Cal.4th
826, 876; People v. Welch (1999) 20 Cal.4th 701,
728.) Denial of such a motion is not an
defendant has shown that the failure to replace counsel
would substantially impair the defendant’s right to assistance of counsel. (People v. Smith (2003) 30 Cal.4th
581, 604.)
Defendant brought two Marsden
motions. Defendant brought his first
Marsden motion on March 22, 2011, when the case had been called to
resolve various motions as well as for judgment and sentencing. Defense counsel sought a continuance, based
in part on defendant’s desire “to investigate I.A.C [ineffective assistance of
counsel].†Defense counsel asked the
court to appoint somebody to advise defendant in the matter or to relieve him
as counsel if the court deemed it appropriate.
In response, the court conducted a Marsden hearing.
At
the hearing, defendant first complained that
Washington, who defendant described as “my main witness†in his drug case. As we noted earlier, in response, defense
counsel told the court that he wanted to call Ms. Washington, but that he had
not subpoenaed her because his investigator had advised him that it might make
Ms. Washington feel like an “adversary†witness if a subpoena were issued and
that it would be better for her to feel like she was there “on her own
volition.†The trial court found: “The
speculation that an individual in a car in which the drugs were [found] somehow
would, number one, even testify and, number two, would lead to a different
outcome of the case, given all the evidence against you. That’s not inadequate.â€
Defendant
next complained that he had asked defense counsel to file a Pitchess motion
in his drug case, but that defense counsel did not do so until the day of
trial. Defense counsel told the court
that defendant had spoken with an inmate who had told him about misleading
police reports that had been filed by Officer Gutierrez in his case. Defendant gave defense counsel the name of
the inmate, but defense counsel had been unable to learn any information about
the case because the name provided by defendant was incorrect. The Friday before the Monday trial, defense
counsel investigated further, using “every different variant†of the name
provided by defendant that he could think of, and finally identified the
individual defendant had spoken with.
Defense counsel contacted the defense attorney from the case, Mr.
Coffer, that same day and then submitted the Pitchess
motion the next court date.
The trial court noted that it had heard and determined the Pitchess motion
and that “[i]t wasn’t sufficient evidence then, and there’s still not
sufficient evidence.â€
As
to his robbery case, defendant complained that defense counsel had not called
three alibi witnesses. Defense counsel was
clearly aware of defendant’s alibi that he was having his hair cut during the
robbery, and counsel indicated he had investigated and interviewed potential
alibi witnesses and had even secured their attendance at trial. However, based on defense counsel’s
assessment of the witnesses’ credibility, he made a decision not to
at trial because he feared it might have the effect of
substantially undermining defendant’s defense.
Specifically, he questioned whether the jury would perceive the alibi
witnesses as presenting “an honest defense.â€
Defense counsel then made a decision that putting on testimony that the
jury might consider to be a false alibi would run the risk
of introducing information that was more harmful than helpful to the defense. The trial court found that the decision not to
call the alibi witnesses was a tactical decision based on defense counsel’s
personal contact with the witnesses, and concluded that it saw nothing
“untoward here.â€
Finally,
as to his robbery case, defendant also complained that defense counsel had not
performed DNA analysis of the pillowcase that had been found. The trial court found that whether or not the
pillowcase had defendant’s DNA on it would not be a defense.
The
court denied defendant’s Marsden
motion, concluding that “I don’t find sufficient information that’s been
presented to cause me to think that [defense counsel] was in any way
prejudicially inadequate.â€
On
May 23, 2011, during a discussion of the Romero motion
presented by defense counsel and prior to sentencing, defendant brought his
second Marsden motion. At the hearing on that motion, the trial
court asked defendant what it was about defense counsel’s performance “todayâ€
that he anticipated was going to cause him problems that another lawyer could
solve. Defendant replied: “Failure to
investigate and failure to . . . perform diligently in my case. Like right now, I’m being affected by this [Romero] motion not being in
on time.†The following exchange
occurred:
“THE
COURT: All right. So is there anything else you want to tell
me?
“THE
DEFENDANT: Just that he didn’t
investigate it or—or subpoena witnesses—
“THE
COURT: All right.
“THE
DEFENDANT:—that were available for my—for my case and probably could have made
the decision different for the jurors.
“THE
COURT: All right. Let’s see.
You said something last time we were here, that you wanted to represent
yourself. Is that still something you
want to do?
“THE
DEFENDANT: I mean, to the point where—I
mean, if I can’t—if I can’t get somebody to do the things for me in a timely
fashion, I have to do something to protect my own rights.
“THE
COURT: Uh-huh. Well, everything, you know, that you’ve told
us about is on the record here. So if
there’s some other—if the Appellate Court agrees with you, you know, your
rights are going to be protected. It’s
not like it’s not on the record, what’s going on here. [¶] I mean, we’re at this point now—so
you want to go ahead and have Mr. Cohen finish up the representation and then
take it from there? Is that what you
want to do?
“THE
DEFENDANT: If I can’t get my ineffective
counsel claim investigated, I guess that—I don’t think I have a choice to do.
“THE
COURT: All right. Let’s bring back the public then and go ahead
and get this taken care of.â€
The
trial court denied defendant’s request for new counsel. The court then denied defendant’s pending
motion for a new trial, his Romero motion,
and pronounced the sentence.
A
judge abuses his or her discretion if the judge “denies a motion for
substitution of attorneys solely on the basis of his [or her] courtroom
observations, despite a defendant’s offer to relate specific instances of misconduct,â€
or makes a decision “without giving a party an opportunity to present argument
or evidence . . . .â€
(Marsden,
supra,
2 Cal.3d at p. 124.) Depending on
the nature of the grievances related by the defendant, it may be necessary for
the court also to question defense counsel.
(People v. Turner (1992)
7 Cal.App.4th 1214, 1219.)
However,
“[o]nce the defendant is afforded an opportunity to state the reasons for
discharging an appointed attorney, the decision to allow a substitution of
attorney is within the discretion of the trial judge unless defendant has made
a substantial showing that failure to order substitution is likely to result in
constitutionally inadequate representation.
[Citations.]†(People v. Crandell (1988) 46 Cal.3d 833, 859, overruled on
other grounds in People v. Crayton
(2002) 28 Cal.4th 346, 364-365.) “A
trial court should grant a defendant’s Marsden
motion only when the defendant has made ‘a substantial
showing that failure to order substitution is likely to result in constitutionally
inadequate representation . . . .’ †(People
v. Hines (1997)
15 Cal.4th 997, 1025.)
In
the first Marsden hearing, the record demonstrates the court allowed
defendant to explain the reasons for his dissatisfaction with counsel and
permitted counsel to respond. Counsel
had adequate explanations for all of defendant’s complaints. The record reflects that defendant’s
complaints focused primarily on the fact that he disagreed with defense counsel
regarding the appropriate strategy for his defense, including whether to
subpoena Ms. Washington, when to bring his Pitchess motion, whether to
call alibi witnesses, and whether to conduct DNA analysis of the
pillowcase. Such decisions
are tactical and not subject to a finding of
ineffectiveness. Because the record does not clearly show counsel’s performance was
inadequate, the trial court did not abuse its discretion in refusing to relieve
counsel. (See, e.g.,
878-879; People v. Abilez (2007) 41 Cal.4th 472, 487-490.)
In the second Marsden hearing, the trial court again gave
defendant an opportunity to state his complaints. Defendant complained that defense counsel had
not timely filed his Romero motion,
and then referred to complaints raised at his first Marsden motion. Defendant complains on appeal that the trial
court failed to elicit and fully consider the reasons
for his second Marsden motion.
However, it
was apparent to the trial court that defendant’s comments
about his trial counsel at the time of the sentencing were merely
the earlier Marsden hearing. (People v. Clark (1992) 3 Cal.4th 41,
104 [the trial court is “not required to afford a
People v. Vera (2004) 122 Cal.App.4th 970, 980 [“a defendant is not
entitled to keep repeating and renewing complaints that
the court has already heardâ€].) Accordingly, the trial court did not abuse
its discretion in denying defendant’s Marsden
motions.
IV.
Petition for Writ of Habeas Corpus
Defendant
has also filed a petition for a writ of habeas corpus, which we have ordered
consolidated with his appeal, in which he claims that defense counsel’s
errors and omissions deprived him of his constitutional rights to due process
| Description | Antione Thomas (defendant) appeals from the single judgment entered following jury trials in two separate unrelated cases. In the first case, a jury convicted defendant of one count of possession for sale of cocaine base (Health & Saf. Code, § 11351.5). In the second case, a jury convicted defendant of one count of second degree robbery (Pen. Code, § 211) with a further finding that he had personally used a handgun in the commission of the offense (Pen. Code, §§ 12022.5, subd. (a)(1), 12022.53, subd. (b)). In each case, following a bifurcated trial, the jury found defendant had at least four prior strike convictions (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Defendant was sentenced for both cases in a single proceeding, and was given a total state prison term of 60 years to life. |
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