>P. v.
Woodberry

 

 

 

 

 

 

 

 

 

Filed 12/4/13  P. v.
Woodberry CA2/6

 

 

 

 

 

NOT TO BE PUBLISHED
IN THE 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opinion has not been certified for publication or ordered published for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

 

SECOND APPELLATE DISTRICT

 

DIVISION SIX

 

 
>

THE PEOPLE,       Plaintiff and Respondent,   v.   ANDRE LAMON WOODBERRY,       Defendant and Appellant.

2d Crim. No. B245613 (Super. Ct. No. KA093008) (Los Angeles County)

 

                        A
jury found Andre Lamon Woodberry guilty of second
degree robbery.  (Pen. Code,
§ 211.)href="#_ftn1" name="_ftnref1"
title="">[1]  The jury also found true the special
allegation that the offense was committed for the benefit of, at the direction
of, and in association with a criminal
street gang.  (§ 186.22, subd.
(b)(1)(C).)  Woodberry admitted having
suffered prior convictions within the meaning of sections 1203, subdivision
(e)(4) and 667.5, subdivision (b).href="#_ftn2"
name="_ftnref2" title="">[2]  He was sentenced to a total of 14 years in
prison.  We affirm.

FACTS

                        At
approximately 1:05 p.m., on January 6, 2011, Kevin Davis was
standing in front of Bassett High
School waiting for his girlfriend.  A car drove up and four men, including Woodberry,
got out.  Davis
knew Woodberry as "Woody."  Davis
recognized Woodberry as someone who had given his cousin and other family
members tattoos.  Davis
had a "beef" with Woodberry because Davis's
cousin's girlfriend ended her relationship with the cousin and became
Woodberry's girlfriend.

                        One
of the men asked Davis if he knew
what neighborhood he was in.  Davis
replied "No," and the man said, "[T]his is Bassett."  Davis
said he was waiting for his girlfriend and had "no problem."  The man pulled out a handgun and asked Davis
what was in his pocket.  Davis
denied he had anything in his pocket. 
Woodberry punched Davis in
the eye and took $1,000 and an "eight ball" of methamphetamine from Davis's
pocket.  An eight ball is much more than
would be used by a single individual.  The
four men ran away.

                        Davis
called the police.  He told Los Angeles
Sherriff's Detective Gerald Groenow that Woody had robbed him.

                        Groenow
testified that Woodberry is a member of the Bassett gang.  The gang has approximately 300 members.  The gang's primary activities include
robbery, narcotics and murder.  The
prosecution presented Groenow with a hypothetical based on the facts of the
underlying offense.  Groenow opined that
the robbery was committed for the benefit of the Bassett gang.

>Defense

                        Davis
admitted that he is a gang member and that he has been charged with possession
of drugs for sale.

                        Louis
Lujan is Woodberry's uncle and Baselisa Lujan is Woodberry's
great-grandmother.  They both live with
Woodberry.  Both Lujans testified
Woodberry was at home at the time of the robbery.

>Motion For New Trial

                        Woodberry
moved for a new trial based on ineffective assistance of his retained counsel,
Louisa Pensanti.  The motion was made
through new counsel.

(a)  Woodberry Declaration

                        Woodberry
submitted an affidavit in support of his motion.  Woodberry declared:  After his great-grandmother retained Pensanti
to represent him, he tried to contact her on numerous occasions.  He also asked his great-grandmother to
contact her.  Pensanti never contacted
him.  The first opportunity he had to
speak with Pensanti was in the morning his trial started.

                        Pensanti's
associate visited Woodberry in jail. 
Woodberry gave her the names, phone numbers and addresses of witnesses
he wanted called.  Pensanti never
contacted the witnesses.  When the trial
court asked Pensanti whether there are any defense witnesses, Pensanti turned
to Woodberry and asked if he had any witnesses. 
When Woodberry told her he provided witness information to her
associate, she replied that she did not need any of his witnesses.

                        While
Davis was testifying at trial, Woodberry
told Pensanti that he knew Davis,
that Davis is a gang member, and
that Davis and members of his family are known to sell drugs.

(b)  Lujan Declarations

                        Baselisa
and Luis Lujan submitted affidavits declaring that Woodberry was at home at the
time the robbery took place.

                        Baselisa
also declared that she continually called Pensanti's office to discuss the case
and request that she visit Woodberry at the jail.  Pensanti never returned her calls and never
visited Woodberry.  Baselisa said she
spoke to Pensanti's assistants about witnesses, but she was never able to
discuss the information with Pensanti. 
Pensanti did not discuss anything with her prior to her testimony.

>(c) Dove Declaration

                        Austin
Dove represented Woodberry's codefendant at trial.  Dove declared:  Prior to trial, the prosecution provided the
defendants copies of the recording of the 911 call.  The recording was important because Davis,
who knew Woodberry, did not name Woodberry during the call.  When Dove asked Pensanti about the 911 call,
she said she had not listened to the recording. 
In addition, Dove noticed that Davis's
description of the suspects conflicted with Woodberry's appearance.  Pensanti addressed neither of these issues in
representing Woodberry.

                        Prior
to trial, Pensanti filed a motion for a continuance indicating she was not
ready for trial.  When the case was sent
to the trial court, however, she announced she was ready.  It was clear she was not ready.

                        Pensanti
volunteered that her office was "'being raided'" by the police.  She stated, "'[T]his is the best place
for me to be.'"

                        During
Pensanti's cross-examination of Davis, the trial court asked her about the
basis for her questions.  She replied
that she just found out about the information from her client when he talked to
her before lunch.

(d)  Maewether's Declaration

                        Thomas
Maeweather is a private investigator retained by Woodberry's new counsel to
assist in a motion for a new trial.  Maeweather declared:  He conducted interviews with Woodberry's
family members and a friend.  All made
themselves available to him and were "more than willing" to speak
with him.  None had been interviewed by a
defense investigator or attorney. 
Woodberry's uncle, David O'Neal said he saw Woodberry at home at the
time of the robbery.

                        The
trial court denied the motion.  The court
stated that based on its recollection of the trial it could not find Pensanti
was ineffective or that anything she did or failed to do would have led to a
different result.

DISCUSSION

                        A
defendant claiming ineffective assistant of counsel has the burden of
demonstrating both that his counsel's performance was deficient when measured
against the standard of a reasonably competent attorney and that counsel's
deficient performance resulted in prejudice to the defendant.  (Strickland
v. Washington (1984) 466 U.S. 668, 687-688, 691-692.)  To show prejudice a defendant must show there
is a reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.  (Id.
at p. 694.)

                        Woodberry
argues that Pensanti made no meaningful contact with him or his family, in
spite of numerous attempts to reach her. 
But Woodberry fails to show that it is reasonably probable he would have
obtained a more favorable result had Pensanti contacted him.

                        Woodberry
claims he had vital information for Pensanti. 
The information included an alibi and the names of additional
witnesses.  But Baselisa and Luis Lujan
testified Woodberry was at home at the time of the robbery.  The jury did not believe them.  Woodberry does not explain why the jury would
be more likely to believe any other alibi witnesses.  Woodberry claims Pensanti called the Lujans
as witnesses without ever interviewing them. 
But he fails to explain how their testimony would have been more
favorable to him had they been interviewed.

                        Woodberry's
claim that Pensanti failed to investigate suffers from the same
defect.  The only specific information
Woodberry's investigator found post-trial was that another uncle could have
testified Woodberry was at home at the time of the robbery.  That is the same alibi evidence the jury
heard from other witnesses, and rejected.

                        Woodberry
claims Pensanti was not prepared.  He
argues her lack of preparation resulted in her eliciting that Woodberry's
codefendant was accused of using a "Tech Nine pistol" in another
crime.  But the record shows the
prosecutor elicited that information.  In
any event, the jury found the firearm allegations not true for Woodberry and
acquitted his codefendant of all charges.

                        Dove, who
represented Woodberry's codefendant, declared that Pensanti failed to address
at trial the 911 call or that Davis's description of the suspects conflicted
with Woodberry's appearance.

                        A recording
of the call contains Davis's voice and Davis did not identify Woodberry as one
of the robbers during the call.  But
Davis identified Woodberry when the police arrived in response to the 911 call.  Moreover, it was uncontested that Davis knew
Woodberry from previous encounters. 
Woodberry has failed to show it is reasonably probable he would have
obtained a more favorable result had Pensanti addressed the 911 call or Davis's
description of the suspects.

                        Woodberry
claims that Pensanti failed to discuss with him whether he should testify.  But the record shows otherwise.  The following colloquy took place at trial:

                        "THE
COURT:  . . .  Ms. Pensanti, did you talk to [Woodberry]
about his Constitutional right not to testify or to testify?

                        "MS.
PENSANTI:  Yes.  I did.

                        "THE
COURT:  Did you point out those areas
that you felt he would have to testify to that would help his case and other
areas that might hurt his case?

                        "MS.
PENSANTI:  Yes.  I did.

                        "THE
COURT:  Did you point out those areas
that you felt [the prosecutor] would probably focus in on, based on his
testimony?

                        "MS.
PENSANTI:  Yes.  I did.

                        "THE
COURT:  And did you explain to him that
there was a Constitutional right, personal and unique to him, and that he and
only he could waive that right, you could only recommend?

                        "MS.
PENSANTI:  That is correct.  I did.

                        "THE
COURT  All right.  Mr. Woodberry, did you folks in fact have
that conversation?

                        "DEFENDANT
WOODBERRY:  Yes.  We did."

                        Finally, the
trial judge who presided over the trial is in the best position to determine
whether Pensanti's representation was deficient.  Here the trial court expressly found
Pensanti's representation was not deficient.

II.

                        Woodberry
contends the judgment is not supported by substantial evidence.

                        In
reviewing the sufficiency of the evidence we view the evidence in a light most
favorable to the judgment.  (>People v. Johnson (1980) 26 Cal.3d 557,
578.)  We discard evidence that does not
support the judgment as having been rejected by the trier of fact for lack of
sufficient verity.  (People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.)  We have no power on appeal to reweigh the
evidence or judge the credibility of witnesses. 
(People v. Stewart (2000) 77
Cal.App.4th 785, 790.)  We must affirm if
we determine that any rational trier of fact could find the elements of the
crime or enhancement beyond a reasonable doubt. 
(People v. Johnson,> supra, at p. 578.)

                        Robbery is
the felonious taking of personal property in the possession of another, from
his person or immediate presence, and against his will, accomplished by means
of force or fear.

                        Here the
evidence viewed in a light most favorable to the judgment shows:  Four men, including Woodberry, accosted
Davis.  One of the men displayed a
handgun.  Woodberry punched Davis in the
eye and took $1,000 and an eight ball of methamphetamine from Davis's
pockets.  Davis knew Woodberry from
previous encounters and identified him at trial.  That is substantial evidence to support the
judgment.

                        Woodberry's
contention is based on conflicts and inconsistencies in Davis's testimony.  But conflicts and inconsistencies in a
witness's testimony do not justify reversal. 
(People v. Harlan (1990) 222
Cal.App.3d 439, 453.)  It is the
exclusive province of the jury to determine the credibility of a witness.  (Ibid.)  Here the jury found Davis's testimony
credible.  We have no power to disturb
that finding on appeal.

                        The
judgment is affirmed.

                        NOT
TO BE PUBLISHED.

 

 

 

 

                                                                        GILBERT,
P. J.

 

 

We concur:

 

 

 

                        YEGAN,
J.

 

 

 

                        PERREN,
J.

 

Bruce
F. Marrs, Judge

Superior
Court County of Los Angeles

______________________________

 

 

                        Lori-Ann
C. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.

                        Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, Stacy S. Schwartz, Deputy Attorney
General, for Plaintiff and Respondent.