P.v . Halpin

Filed 5/27/10 P.v . Halpin CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Carol Ann Halpin appeals a judgment entered following a jury trial during which she was convicted of vehicular manslaughter while intoxicated (Penal Code, 191.5, subd. (a)).[1] On appeal, defendant asserts she was denied effective assistance of counsel at trial, because her attorney did not request redaction of a portion of her statement to police during which she invoked her right to remain silent.

Statement of the Facts and Case

The instant case stems from a dispute between defendant and a roommate, Amy Desroches, in June 2006 over living arrangements and Desrochess car. In the process of the dispute, the victim, Estella Cooke, a friend of Desroches, sat on the hood of the car. Defendant drove the car while Cooke was on the hood, and as she accelerated and turned the corner, Cooke flew off the hood, fell to the ground, hit her head on the pavement and died.

The dispute between Desroches and defendant began over defendants continued use of Desrochess car. Desroches stayed with defendant in her trailer for two months in 2006, during which she did not pay defendant rent; instead, she paid for food, supplied defendant with methamphetamine, and permitted defendant to use her 2003 Toyota Camry.

On June 24, 2006, Desroches was upset because she lent defendant her car for half an hour, and defendant never returned with it. Desroches attempted to contact defendant on her cell phone for two days, but defendant never returned her calls. Desroches continued to stay at defendants trailer.

Meanwhile, defendant went to the home of her friend, Amber Daniels. Desroches had called Daniels previously to tell her she needed her car back from defendant. Daniels relayed this message to defendant.

On June 26, 2006, Daniels and defendant were drinking and smoked some marijuana. Around 11:00 p.m., Desroches, along with some of her friends, including the victim, Cooke, found Desrochess car in front of Danielss home. Desroches went to Danielss door and demanded the car keys from defendant. Defendant did not give her the key, and instead, asked for the key to her trailer. Daniels then told everyone: Get away from my house or I am going to call the police. Daniels returned to her bedroom in the house.

Desroches and defendant began yelling at each other as they walked toward the car. Cooke told Desroches to call the police. A minute or so later, Daniels heard escalating voices and went outside to see what was going on. She saw Desroches and defendant arguing, with Desroches demanding the key to her car, and defendant demanding the key to her trailer. Desroches walked toward defendant, who pushed Desroches. In return, Desroches yelled and spat at defendant and slapped her face.

Cooke then got onto the hood of the car with her back toward the windshield. Desroches called 911. While Desroches was on the phone with the 911 operator, defendant walked over and got into the car. Defendant started the car while Cooke was on the hood. Desroches saw the car accelerate very fast, and she screamed for Cooke to get off the car. Desroches could see Cooke sitting on the hood, with her back to the windshield, holding onto the windshield wiper with one hand. Desroches saw the car turn right without stopping, at which point Cooke flew off the hood and landed on her head on the ground. The car sped away and did not return. Cooke was lying on the ground, and was bleeding from the head.

In addition to those involved in the dispute, there was also an independent witness who saw the altercation. Jennifer Hogan, who lived on the same street as Daniels, heard the commotion and looked out the window of her house. From this vantage point, Hogan could see two women arguing. One woman had a blond ponytail (defendant), and the other had brown hair (Desroches). Hogan saw Daniels go back into her house, and the group of people walk down the street, leaving only Desroches in her view. It appeared to Hogan that Desroches was talking to the police, telling them that someone was taking her car. Then, Hogan saw a car drive[] by with a woman on the hood and turn[] the corner. The woman slides off the car and the car keeps going. Hogan described the car as going faster than any car Ive ever seen go down there because its a pretty short street. So she accelerated, I think, she accelerated as fast as she possibly could.

Around 12:30 a.m. on June 27, 2006, Sheriffs deputies detained defendant at her trailer. The car was parked in the driveway. There were scratches on the hood, and the drivers side windshield wiper had been pulled off the car. In addition, Cookes right thumb print was found in the middle of the hood, and her left thumb print was found on the passenger edge of the hood.

Defendants blood was drawn and tested. She was found to have 280 nanograms per milliliter of methamphetamine, and 47 nanograms per milliliter of amphetamine in her blood. The toxicologist testified that this quantity would stimulate the central nervous system, and could possibly cause confusion, delusion, irritability, aggressiveness, and coordination and reflex problems.

An autopsy of Cooke revealed that she died from blunt force trauma to head, with brain injury.

Defendant was charged in August 2006, with vehicular manslaughter committed with gross negligence ( 192, subd. (c)(1) count 1); assault with a deadly weapon by force likely to produce great bodily injury ( 245, subd. (a)(1) - count 2); vehicular manslaughter while intoxicated ( 191.5, subd. (a) - count 3); and voluntary manslaughter ( 192, subd. (a) - count 4). The matter proceeded to trial on May 25, 2007. Following a break in the proceedings, the trial continued on June 11, 2007, and a jury returned a verdict of guilt as charged in count 3, vehicular manslaughter while intoxicated, and the lesser included misdemeanor violation of section 192, subdivision (c)(1) as to count 1.

At sentencing, the court vacated the verdict as to the violation of section 192, subdivision (c)(1) as a lesser include offense of gross vehicular manslaughter while intoxicated. Defendant was sentenced to six years for the vehicular manslaughter while intoxicated ( 191.5, subd. (a) - count 3). Defendant filed a notice of appeal.

Discussion

Defendant asserts on appeal she was denied effective assistance of counsel because her attorney did not request a redaction of her statement to police in which she invoked her right to remain silent.

At the end of defendants testimony during trial, her trial attorney moved pursuant to Evidence Code section 356 to play a CD recording of her entire interview with police. During the interview, at the point where the officers began to talk to defendant about Cooke being on the hood of the car while defendant was driving, defendant told officers she no longer wished to speak to them, and would not answer any more questions. This portion of the recording was included in the entire recording that was played for the jury; defendants attorney did not request that the portion of the recording in which defendant invokes her right to remain silent be redacted. Defendant asserts her counsels failure to make such a request was ineffective.

To prevail on a claim of ineffective assistance of counsel, first, defendant must establish that counsels representation fell below an objective standard of reasonableness . . . under prevailing professional norms. [Citation.] (People v. Ledesma (1987) 43 Cal.3d 171, 216, quoting Strickland v. Washington (1984) 466 U.S. 668, 688.) However, [a] reviewing court will indulge in a presumption that counsels performance fell within the wide range of professional competence and that counsels actions and inactions can be explained as a matter of sound trial strategy. (People v. Carter (2003) 30 Cal.4th 1166, 1211.) On direct appeal, where the record does not show the reason for counsels challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. (People v. Anderson (2001) 25 Cal.4th 543, 569.) In other words, appellant bears a burden that is difficult to carry on direct appeal. (People v. Lucas (1995) 12 Cal.4th 415, 436.) [I]f the record sheds no light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for an explanation and failed to provide one, or there could be no satisfactory explanation for counsels performance. (People v. Castillo (1997) 16 Cal.4th 1009, 1015.)

In addition to proof that counsels performance was deficient, defendant must also show she suffered prejudice. Specifically, defendant must show there is a reasonable probability that, but for counsels 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 v. Washington, supra, 466 U.S. at p. 694; People v. Staten (2000) 24 Cal.4th 434, 450-451.)

Moreover, a court need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsels performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result. (Strickland v. Washington, supra, 466 U.S. at p. 697.)

Here, we need not consider whether counsels performance was deficient, because defendant has not shown that she was prejudiced by the alleged error. By our review the record, it is not reasonably probable that defendant would have received a more favorable outcome at trial but for her counsels failure to request a redaction of a portion of her interview with police. The evidence of defendants guilt presented at trial was overwhelming.

At trial, defendant testified she did not know Cooke was on the hood of the car at the time she drove. Defendant also claimed she thought Cooke walked away from the car as defendant was driving down the street. However, contradictory evidence was strong in the form of testimony of numerous witnesses, including Hogan, an independent eyewitness, and physical evidence. In addition, the transcript of the 911 call was presented to the jury, and included a description of the events as they were occurring. Desroches made the call, and described the scene to the operator, saying that defendant started the car with Cooke on the hood, and began driving down the street erratically. At trial, Desroches testified that she estimated that Cooke had been sitting on the hood of the car for between 10 and 15 minutes when defendant finally started the car. After starting the car, defendant accelerated quickly while Desroches screamed for Cooke to get off the hood. Cooke held onto the windshield wiper, and as defendant turned the corner without stopping, Cooke flew off the hood of the car and landed on her head.

In addition to Desroches, Hogan, the only independent witness, testified at trial that she saw Cooke on the hood of car reclining with her back against the windshield. Hogan further testified that defendant drove the car very fast with Cooke on the hood, and that it was faster than any car Hogan had seen drive down that short street. Hogan saw defendant turn the car, and Cooke slide off the hood onto the ground.

The physical evidence corroborated the numerous witnesses testimony in this case. On the car, Cookes right thumb print was found in the middle of the hood, and her left thumb print was found on the passenger edge of the hood, and the drivers side windshield wiper had been pulled off. In addition, Cooke died from blunt force trauma to her head and injury to her brain consistent with having fallen off a moving car and hitting the ground.

The record contains overwhelming evidence of defendants guilt. As a result, there is no reasonable probability that but for her counsels failure to request a redaction of her invocation of her right to remain silent during her police interview, defendant would have received a more favorable result. Therefore, we find defendant was not prejudiced by counsels performance. (Strickland v. Washington, supra, 466 U.S. at p. 694.)

Disposition

The judgment is affirmed.

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RUSHING, P.J.

WE CONCUR:

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PREMO, J.

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ELIA, J.

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[1] All further unspecified statutory references are to the Penal Code.