P. v. DeCosta
Filed 5/13/13 P. v. DeCosta CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
CHRISTOPHER DEAN DaCOSTA,
Defendant and Appellant.
D059636
(Super. Ct.
No. FSB702860)
APPEAL from
a judgment of the Superior Court
of
County, Donna G. Garza and J. David Mazurek, Judges. Affirmed as modified.
Christine
Vento, 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, Peter Quon, Jr., and Quisteen S.
Shum, Deputy Attorneys General, for Plaintiff and Respondent.
Christopher
Dean DaCosta (Defendant) appeals a judgment following his jury convictions of
§ 187, subd. (a))
name="_ftnref1" title="">[1]
and kidnapping (§ 207, subd. (a)).
On appeal, he contends: (1) he was denied his constitutional right to
effective assistance of counsel because his defense counsel did not competently
investigate his defenses; (2) the trial court erred by denying his motion for
new trial based on ineffective assistance of counsel; (3) he was denied his
assistance of counsel when, in moving for a new trial, his new appointed
counsel did not correct misstatements of law; (4) he was denied his
constitutional right to effective assistance of counsel when his defense
counsel did not request a pinpoint instruction on the felony murder doctrine;
(5) the trial court erred by imposing consecutive sentences for his two
offenses in violation of section 654; and (6) the abstract of judgment should
be corrected to reflect the number of presentence custody credits to which he
is entitled.
FACTUAL
AND PROCEDURAL BACKGROUND
name="_ftnref2" title="">[2]
On the
afternoon of July 22, 2007,
a group of friends were having a party at the apartment of Andrew Baker
(Andrew) in Yucaipa.
The group included Defendant, Kelly McLeod (Kelly), Kelsey Angell
(Kelsey), Courtney Otis (Courtney), Lauren Parsons (Lauren), Jade, Holly,
Elysse, Luke McLeod (Luke), Richard Hamilton (Richard), Aaron Dixon (Aaron),
Mary Jo Dixon (Mary Jo), and Mark Smith (Mark).
Mark became
intoxicated quickly and began inappropriately grabbing the young women at the
party. When Mark grabbed Lauren
inappropriately, they fell to the ground.
Kelsey went outside and informed Aaron of Mark's actions. When Aaron went inside the apartment, he saw
Mark lying on top of Lauren, who appeared upset. Lauren got up and ran to the bathroom. Aaron told Mark to leave the party, but he
refused. Mark and Aaron fought. After Aaron hit him at least two or three
times, Mark fell to the floor. Aaron
then left to check on Lauren.
Aaron told
Kelly something to the effect: "Get [Mark] out of here, I don't want to
see him again." Kelly dragged Mark
out of the apartment and placed him supine on the driveway; Mark was alive and
breathing at the time. Aaron kicked Mark
in the head a couple of times. Kelly and
Defendant then loaded Mark onto the bed of Courtney's truck
and drove off. Kelly drove and Defendant
sat in the passenger's seat.
Meanwhile,
Luke drove the young women (Kelsey, Courtney, Lauren, Jade, Holly, and Elysse)
to Joe's house. They arrived at about 6:00 or 7:00
p.m.
Kelly
arrived at Joe's house about one hour later.
When asked what happened to Mark, Kelly replied he "took care
of" Mark without providing any details.
When Courtney asked Kelly why he did not take Mark to a hospital, he
replied that they would all get in trouble if he did. He said he had hidden Mark, but did not say
where. Kelly said he had "wiped
down" the truck.
At about 9:00 or 10:00
p.m., Courtney dropped Kelly off at his house. He told her he needed to go "check
on" Mark. Courtney then returned to
Joe's house.
Kelly
returned to Joe's house at about midnight. He had Mark's wallet and stated he had it to
prevent police from identifying Mark.
When Courtney asked Kelly what happened, he replied that she did not
need to worry about it and that he "took care of it." She asked him what that meant and he stated,
"I killed him." Kelly
described using a lead pipe to kill Mark.
One day
later, Kelly and Defendant told some people at Andrew's house that they took
Mark to the woods, stripped him of his clothes, and took care of it. They stated that if everyone kept their
mouths shut, no one would discover that Mark was missing.
At about 9:00 a.m. on July 23, a hiker found Mark's body
lying in a culvert near a dirt private road.
San Bernardino County Sheriff's Detective Samuel Fisk responded to the
hiker's 911 call. Fisk saw Mark's body
lying face down in the culvert, with a large amount of blood on the back of his
head and shoulders. Mark was not wearing
a shirt and his pants were pulled half-way down his buttocks. He had vomit on his nose, mouth, shoulders,
and chest. Fisk found an area where he
believed Mark was dropped and rolled down into the culvert. Fisk saw indications that someone other than
Mark had also been in the culvert.
A crime
scene specialist examined the scene and, based on blood spatter around Mark's
head and shoulders, concluded he received multiple strikes to the head at that
location. An autopsy by Dr. Steven
Trenkle, a forensic pathologist, showed Mark had extensive abrasions on his
face, knees, thighs, lower back, and buttocks.
Trenkle believed Mark was alive when he sustained those abrasions. Mark also had four parallel, linear lacerations
on the right side of his head. They had
the appearance of multiple blows, consistent with being struck by a bat, pipe,
or other small, cylindrical object. Mark
had two superficial fractures of the skull underneath those lacerations. There was hemorrhaging in the area between
his skull and dura (covering of brain), and significant blood inside the
ventricles of his brain. Trenkle
concluded the blows to Mark's head (i.e., blunt force trauma) that resulted in
those injuries were the cause of Mark's death.
Based on the large amount of blood in Mark's hair and on the ground near
his body, Trenkle concluded Mark was alive when he sustained those blows to his
head and for some time thereafter.
On July 31,
Detectives Fisk and Bessinger interviewed Kelly, who waived his
rights and then described what happened on July 22. Kelly described how he broke up a fight
between Aaron and Mark, placed Mark in Courtney's truck, drove him to the
private road and threw him into the ditch, and then drove to Joe's house. He said he believed Mark was alive when he
placed him in the truck because he heard Mark moan and make gurgling
noises. Later, while at Joe's house, he
cleaned Courtney's truck and then Courtney drove him to his house. At home, Kelly took a lead pipe from his
father's garage and drove a car (that he shared with his brother) back to the
ditch where he left Mark. He stood at
the top of the embankment and threw a rock at Mark. He then went down into the ditch and struck
Mark's head three times with the pipe.
He took Mark's wallet and cell phone.
Kelly said he went back to the ditch "to make sure [Mark] was
done." He said he did not take Mark
to the hospital because he was scared and concerned Mark would go after him,
believing he (Mark) had connections with white supremacists. Kelly later showed the detectives where he
left the pipe, which was about five feet long and made of galvanized steel.
An
information charged Defendant and Kelly with first degree murder and
kidnapping. At trial, the prosecution
presented evidence substantially as described above.
In his
defense, Kelly testified that he tried to break up the fight between Aaron and
Mark. Kelly testified Defendant helped
him carry Mark out of the apartment by his arms and legs. They put Mark supine on the driveway. Aaron came over and stomped on Mark's head
"quite a few times." Mark's
head was "a mess" and covered in blood. He appeared unconscious. Kelly thought Aaron told him, "Get
[Mark] out of here. I don't want to see
him anymore." He testified he felt
Aaron was going to get into trouble, and thought he had to move Mark. Kelly and Defendant drove Mark in the bed of
Courtney's truck to the culvert. Kelly
testified that he did not take Mark to a hospital because he did not know
whether Mark was dead and was afraid he or Aaron would get into trouble. When he "flung" Mark into the
culvert, Kelly thought he was dead.
Although Kelly thought Mark was dead, he later returned with Defendant
to the culvert because he was paranoid that Mark might come after him, Aaron,
or Defendant. Kelly brought along a
metal pipe in the event Mark was not dead.
After prodding Mark with the pipe, Kelly, suddenly angry about Mark
grabbing Lauren and his (Kelly's) involvement in the situation, hit Mark in the
head with the pipe a couple of times. He
then handed the pipe to Defendant who hit Mark with the pipe two or three
times. Kelly took Mark's wallet and
later threw it into a dumpster behind a convenience store. Kelly returned to Joe's house after his
second trip to the culvert. Kelly
testified his actions that night were to protect Aaron and to keep him from
getting in trouble.
In
Defendant's defense, he presented the testimony of Luke, Kelly's brother, who
stated he saw the fight between Aaron and Mark.
Aaron kicked Mark in the face and side of the head at least 10 times. After Kelly and Defendant pulled Aaron off
Mark, they carried Mark outside and laid him down on the driveway. While they were carrying Mark, Aaron
continued to punch and kick him. After
Kelly spoke with Defendant, they told everyone to go inside the apartment. When Luke went outside 15 minutes later,
Kelly, Defendant, and Mark were no longer there. Luke then drove all the young women in his
car to Joe's house. Kelly arrived alone
at Joe's house about 15 minutes after Luke did.
Luke initially testified he did not recall telling police during an
interview that Kelly told him he (Kelly) and Aaron went back to where Mark
was. On cross-examination, Luke
testified that about one week after the incident Kelly told him he (Kelly) and
Defendant took Mark to the culvert and later went back to check on him. On redirect examination, Luke, after
refreshing his memory by reading a police report of his interview, admitted he
told police that Kelly and Aaron arrived together at Joe's house in Courtney's
truck about 15 minutes after he (Luke) arrived.
He told also police that about five minutes later Kelly and Aaron left
in Otis's truck to take Aaron home.
Kelly returned alone about five to 10 minutes later. Kelly stayed at Joe's house for the rest of
the evening until he and Luke went home together. Luke apparently told police that several days
later Kelly told him he (Kelly) and Aaron threw Mark's body into the
ditch. On recross-examination, Luke
stated it was his independent recollection that Kelly told him he (Kelly) and
Defendant went to the ditch. Luke was
never led to believe Aaron went with Kelly.
In
rebuttal, the prosecution presented Fisk's testimony that during the first few
hours of his interview, Kelly claimed he left Andrew's apartment when Mark and
Aaron first began to fight. Fisk also
testified that when he took Kelly back to the culvert, Kelly reenacted what he
and Defendant did to Mark (i.e., throwing rocks at and then going down to Mark
and striking him with the pipe). Kelly
told Fisk he and Defendant threw rocks at Mark because they thought he was
still alive. During a follow-up
interview, Kelly told Fisk that after the fight, Aaron told Defendant and him
to make Mark leave. He and Defendant
then took Mark to the ditch and left him there.
The jury
found Defendant guilty of first degree
murder and kidnapping.
name="_ftnref6" title="">[6] The trial court sentenced him to a
determinate term of five years in prison for the kidnapping offense and a
consecutive indeterminate term of 25 years to life for the first degree murder
offense. Defendant timely filed a
DISCUSSION
I
Inadequate Investigation
Defendant
contends he was denied effective assistance of counsel because his defense
counsel did not competently investigate his defenses. He argues his defense counsel did not
competently investigate the possibility of hiring a defense pathologist and the
expected testimony of his only defense witness.
A
A criminal
defendant is constitutionally entitled to effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art.
I, § 15; Strickland v. Washington
(1984) 466 U.S. 668, 684-685 (Strickland);
People v. Pope (1979) 23 Cal.3d 412,
422, disapproved on another ground by People
v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) To show denial of that right, a defendant
must show: (1) his or her counsel's performance was below an objective standard
of reasonableness under prevailing professional norms; and (2) the deficient
performance prejudiced the defendant. (
216-217 (Ledesma);
there is a reasonable probability that he or she would have received a more
favorable result had counsel's performance not been deficient. (Strickland,
at pp. 693-694; Ledesma, at pp.
217-218.) "When a defendant
challenges a conviction, the question is whether there is a reasonable
probability that, absent the [trial counsel's] errors, the factfinder would
have had a reasonable doubt respecting guilt." (Strickland,
at p. 695.) "A reasonable
probability is a probability sufficient to undermine confidence in the
outcome." (People v. Williams (1997) 16 Cal.4th 153, 215.) It is the defendant's burden on appeal to
show that he or she was denied effective assistance of counsel and is entitled
to relief. (Ledesma, at p. 218.)
"[T]he burden of proof that the defendant must meet in order to
establish his entitlement to relief on an ineffective assistance claim is
preponderance of the evidence." (
"In
evaluating a defendant's claim of deficient performance by counsel, there is a
'strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance' [citations], and we accord great deference
to counsel's tactical decisions.
[Citations.] . . .
Accordingly, a reviewing court will reverse a conviction 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.' " (
979-980.)
Under the
right to effective assistance of counsel, "the defendant can reasonably
expect that in the course of representation his counsel will undertake only
those actions that a reasonably competent attorney would undertake. But he can also reasonably expect that before
counsel undertakes to act at all he will make a rational and informed decision
on strategy and tactics founded on adequate investigation and preparation. [Citations.]
If counsel fails to make such a decision, his action--no matter how
unobjectionable in the abstract--is professionally deficient." (Ledesma,
supra, 43 Cal.3d at p. 215.) Criminal defense counsel has the duty to
investigate carefully all defenses of fact and of law that may be available to
the defendant. (In re Williams (1969) 1 Cal.3d 168, 175.) "The defendant can reasonably expect that
before counsel undertakes to act, or not to act, counsel will make a rational
and informed decision on strategy and tactics founded on adequate investigation
and preparation." (
1069.) "[T]o render reasonably
competent assistance, an attorney bears certain basic responsibilities,
including the investigation of available defenses . . . ."
(People v. Frierson (1979) 25
Cal.3d 142, 160-161.) "[S]trategic
choices made after less than complete investigation are reasonable precisely to
the extent that reasonable professional judgments support the limitations on
investigation." (
investigate potentially exculpatory evidence, including evidence that might be
used to impeach key prosecution witnesses, renders deficient
representation. [Citations.] California case law makes clear that counsel
has an obligation to investigate all possible defenses and should not select a
defense strategy without first carrying out an adequate
investigation." (
387, 407.) Nevertheless,
should not equate effective assistance with exhaustive investigation of
potential mitigating evidence[.]" (
1254.) The United States Supreme Court
"has recognized that valid strategic choices are possible even without
extensive investigative efforts." (
We
"must judge the reasonableness of counsel's challenged conduct on the
facts of the particular case, viewed as of the time of counsel's
conduct." (Strickland, supra, 466
U.S. at p. 690.) Furthermore, we must
consider the seriousness of the charges against the defendant in assessing
counsel's performance. (
B
At trial, a
forensic pathologist, Trenkle, testified for the prosecution. He performed an autopsy, which showed Mark
had extensive abrasions on his face, knees, thighs, lower back, and buttocks. Trenkle believed Mark was alive when he
sustained those abrasions, explaining a dead person's abrasions would appear
more yellow-tan and lighter in color because his or her heart would have
stopped beating and blood would no longer circulate throughout the body. In contrast, abrasions suffered by a live
person would be more red, as blood would be circulating at the time of the
abrasion. Mark also had four parallel,
"vertically-oriented" linear lacerations on the right side of his head. They had the appearance of multiple blows, consistent
with being struck by a bat, pipe, or other small, cylindrical object. Mark had two superficial fractures of the
skull underneath those lacerations.
There was some hemorrhaging in the area between his skull and dura
(covering of brain), and significant blood inside the ventricles of his brain.
Trenkle
also found gastric contents inside Mark's esophagus, the opening into his
trachea, and lungs. Trenkle testified
that although emesis (i.e., regurgitated food) commonly occurs in many deaths
due to the loss of control of various sphincters, the amount of regurgitated
food in Mark's airway exceeded that he would have expected as a part of the
normal dying process. Based on the large
amount of blood in Mark's hair, the blood inside his scalp, and the large pool
of blood on the ground near his body, Trenkle concluded Mark was alive when he
sustained the blows to his head and for some time thereafter. He further testified the injury to the back
of Mark's head could, in and of itself, be fatal. Trenkle concluded the blows to Mark's head
(i.e., blunt force trauma) that resulted in the injuries to his head were the
cause of his death.
In
Defendant's defense, Luke testified, as described above, regarding the events
of July 22, 2007. After Kelly and Defendant
pulled Aaron off of Mark in the apartment and carried Mark outside, Aaron
continued punching and kicking him.
After they laid Mark on the driveway, Aaron still tried to punch and
kick him. Although Aaron had stomped on
Mark inside the apartment, he did not stomp on him while outside. Kelly and Defendant told everyone to go
inside. When Luke went outside 15
minutes later, Kelly, Defendant, and Mark were gone. Luke took the young women to Joe's house and,
15 minutes after his arrival there, Kelly arrived alone at Joe's house.
On direct
examination, Luke testified he did not tell, or recall telling, police during
an interview that Kelly told him he (Kelly) and Aaron went back to where Mark
was. Luke testified he did not recall
telling police anything about what Kelly had done the night of the incident.
On
cross-examination by the prosecutor, Luke testified he initially gave police a
different story after discussing it in advance with Kelly. Luke told police Kelly and everyone else left
the apartment as soon as Aaron and Mark began fighting. He gave police that version of events to
protect everyone from getting into trouble.
He denied telling police Mark was stomped on while lying on the
driveway.
On
cross-examination by Kelly's counsel, Luke testified Mark appeared unconscious
after Aaron stomped on him inside the apartment. Luke testified Aaron was wearing bowling
shoes. He saw blood on Mark's face and
head, on Aaron's shoes, and on the carpet.
Outside, Luke did not see Mark's chest moving up or down and his eyes
were half-closed. Luke testified that
the day before his police interview Kelly told him he (Kelly) and Defendant
took Mark to the culvert and later went back to check on him. He could not remember being asked by police
whether he knew who went with Kelly to check on Mark in the culvert.
On redirect
examination by Defendant's counsel, Luke testified he did not recall telling
police it was Kelly and Aaron who went to the ditch. He explained that "[i]f I did say that,
it must have been me not being in the right state of mind or saying the wrong
thing." However, after refreshing
his memory by reading a police report of his interview, Luke admitted he told
police that Kelly and Aaron arrived together at Joe's house in Courtney's truck
about 15 minutes after he (Luke) arrived.
He told also police that about five minutes later Kelly and Aaron left
in Otis's truck to take Aaron home.
Kelly returned alone about five to 10 minutes later and stayed at Joe's
house for the rest of the evening until he and Luke went home together. Luke apparently told police that several days
later Kelly told him he (Kelly) and Aaron threw Mark's body into the ditch.
On
recross-examination, Luke stated it was his independent recollection that Kelly
told him he (Kelly) and Defendant went to the ditch. Luke was never led to believe Aaron went with
Kelly.
On May 6,
2010, the date set for Defendant's sentencing hearing, his trial counsel, Byron
Edwin Congdon, Jr., informed the trial court that Defendant wanted to file a
motion for new trial based on ineffective assistance of counsel. Congdon requested that he be relieved as
Defendant's counsel and new counsel be appointed for Defendant to represent him
on the issue of whether there were grounds for a motion for new trial. The court granted his request to be
relieved. On May 20, the court appointed
Stuart O'Melveny to represent Defendant on the issue of whether there were
grounds for a motion for new trial.
On October
5, 2010, O'Melveny filed a motion for new trial on the grounds: (1) Congdon
deprived Defendant of effective representation by failing to consult with and
hire a defense pathologist; and (2) there was insufficient evidence to support
his convictions. The prosecution opposed
the motion.
hearing on Defendant's motion for new trial.
In support of his motion, Defendant presented the declaration of Dr.
Harry J. Bonnell, a forensic pathologist, who testified in pertinent part:
"7. Based on review of [the coroner's reports,
the sheriff's investigative reports, photographs of the scene and autopsy, and
Trenkle's trial testimony], as well as my education, training and experience,
it is my opinion to a reasonable degree of medical certainty that:
"[1.] As testified to by Dr. Trenkle, there were at
least four impacts to [Mark's] head and death would have resulted in minutes[.]
"[2.] The moans and gurgling noise emanating from
[Mark] as he was loaded into the truck could occur simply from such
manipulation and is not indicative of him being alive.
"[3.] There was evidence at the house scene that
trauma occurred there and [Kelly] stated that he dropped [Mark] causing him to
hit his head.
"[4.] [Aaron] also caused head trauma by kicking
[Mark] in the head and stomping on the head.
"[5.] The coroner records indicate a minimum amount
of blood spatter at the recovery scene; this could occur from dumping the body
at this location but is inconsistent with multiple fatal blows occurring at
this scene since scalp wounds bleed briskly and there would be extensive
castoff blood as well as spatter.
"[6.] Any blows struck by [Defendant] at the scene
where the body was recovered would be abuse of a corpse rather than an assault
or homicide."
title="">[7]
O'Melveny
argued Congdon provided Defendant with ineffective representation because had
he retained a pathologist like Bonnell, he could have challenged the testimony
of prosecution witnesses. He argued
Bonnell disagreed with Trenkle's opinion that the moans and gurgling noises
made by Mark indicated he was alive when loaded onto the truck. He also argued Bonnell disagreed with
Trenkle's opinion there was a lot of blood splatter at the culvert, which would
indicate Mark was alive when he was struck with the pipe there. Based on the coroner's records showing there
was a minimal amount of blood spatter at the culvert, Bonnell believed that
minimal amount was inconsistent with the prosecution's theory that the fatal
blows to Mark's head occurred at the culvert.
the prosecution presented the testimony of Defendant's trial counsel. Congdon testified that during his 23 years in
the practice of law, he had handled over 75 murder cases. He described how his approach to Defendant's
defense evolved during the period from before the preliminary hearing through
trial. He initially focused on the
defense that Mark was deceased before Defendant became involved in dumping
Mark's body. Congdon spoke with Grover
Porter, an experienced local defense attorney, regarding hiring a forensic
pathologist who could determine the time and cause of Mark's death. Porter referred him to Dr. Paul Hermann, a
forensic pathologist. Congdon spoke with
Hermann regarding his availability and rates.
Congdon discussed these defense issues with Mark McDonald, Kelly's
counsel, and gave him Hermann's information.
Shortly thereafter, McDonald retained Hermann and provided him with
information regarding the case. Congdon
thought about retaining a second pathologist, but decided to wait and find out
Hermann's opinion before doing so.
Congdon believed that if Mark died before being dumped at the ditch,
that would help Kelly as much as it would help Defendant.
After
McDonald received Hermann's opinion, he shared it with Congdon. McDonald told him that Hermann's opinion
confirmed Trenkle's opinion regarding the time and cause of Mark's death and
the timeline. Because Hermann's opinion
was consistent with Trenkle's, it would not change anything to which Trenkle
would be willing to testify. Because
Hermann had been retained by McDonald, Congdon did not pursue any further
discussions with Hermann. Congdon
concluded there was no need for him to hire another pathologist. He instead changed his defense theory and
focused on whether Defendant only helped load Mark's body onto the truck and a
person other than Defendant went back to the ditch with Kelly. Congdon believed that theory was consistent
with his reading of the facts and was the more viable defense. He explained that "there are some
statements made by others that were interviewed having to do with putting a
different person there with Kelly McLeod at the body dump, as well as going
back and clubbing [Mark]. It appeared
that the more viable defense was somebody else did it. It was not [Defendant]." Congdon testified that he also investigated
an alibi defense (i.e., Defendant was not there). However, after his investigator spoke with
two potential alibi witnesses, Congdon determined he could not use them because
of inconsistencies in their statements.
of McDonald, Kelly's counsel. He was a
deputy district attorney for eight years and then became a criminal defense
attorney in 1996. He had handled 26
murder cases as a defense attorney and four as a prosecutor. In investigating a defense for Kelly,
McDonald first consulted with Dave Posey, a pathologist he regularly used. After reviewing all the information McDonald
gave him, Posey quickly determined his opinion would not differ from Trenkle's
opinion. Posey's opinion heavily weighed
on the vomitus, i.e., there was none in the apartment or truck, but it was around
Mark's face and on the ground where he was discovered. Therefore, McDonald decided not to use Posey
as an expert witness. McDonald also
consulted with a neuropathologist, but insufficient slides were taken from Mark's
body for him to make any determination.
Therefore, McDonald decided not to use him as an expert witness.
About one
year before trial, McDonald told Congdon that his pathologist and
neuropathologist were not going to be of any value because they basically
agreed with Trenkle. After Congdon told
him about the availability of Hermann, McDonald retained Hermann before Congdon
could. After reviewing the case
information given him, Hermann told McDonald that Trenkle's opinion appeared to
be correct. McDonald conveyed Hermann's
opinion to Congdon and decided not to use Hermann as an expert witness at
trial. He believed it bordered on
malpractice for the defense to call an expert witness who was going to agree
with the prosecution's expert. McDonald
decided it would be a better trial strategy to use cross-examination of Trenkle
to allow the jury to consider other possibilities regarding the time and cause
of Mark's death. McDonald testified that
if he had found another pathologist who would have reached a different
conclusion from Trenkle's, it would have benefited both Kelly and Defendant,
explaining "[t]hey would have sank or swam together."
On
cross-examination by O'Melveny, McDonald testified Hermann, unlike Trenkle, did
not think the linear lacerations found on Mark could have been caused by the
heel of a boot, but instead were caused by a pipe. In that respect, McDonald believed Trenkle's
opinion actually benefited the defense.
Hermann also concluded Mark's injuries had been inflicted before his death
because he bled. He told McDonald that
if he were called as a witness at trial, he could explain the lack of the
expected amount of blood where Mark was found by noting blood could have been
absorbed into the soil and Mark could have had a lower pulse and blood pressure
after the initial beating, which resulted in less bleeding after he was struck
with the pipe. Using that information,
McDonald spoke before trial with Trenkle, who indicated those factors could
possibly explain the less-than-expected amount of blood found at the scene. McDonald concluded Hermann's testimony would
not be helpful to Kelly's defense and the only opinion that possibly could have
been helpful was Hermann's indication that Mark could have died as a result of
injuries inflicted by Aaron had Mark been left unattended. However, McDonald concluded that testimony
would not be helpful to the defense because it was a felony murder case. The prosecution could have argued that
because Kelly kidnapped and took Mark to a place where he could not receive
medical attention, Mark did not have a chance to survive the injuries inflicted
by Aaron. McDonald believed that if Mark
had died the minute he was put onto the truck based on injuries from Aaron's
beating, the jury could have found both Kelly and Defendant guilty of felony
murder. Accordingly, McDonald decided
not to use Hermann as an expert witness at trial.
McDonald
also testified that he had about seven cases in which Trenkle was the
prosecution's pathologist. He believed
Trenkle was a very honest person and a "consummate professional as far as
a forensic pathologist for the prosecution." McDonald believed Trenkle's opinion was more
equivocal in this case than in his prior cases and allowed for other
possibilities regarding the cause of Mark's death.
new trial. The court found Congdon did
not commit any unprofessional errors in representing him. It found Defendant did not show Congdon's
actions or inactions were not anything a reasonable attorney would have done in
the same or similar circumstances of this case.
The court noted Hermann's opinion basically substantiated the opinions
of the other pathologists and was conveyed by McDonald to Congdon. Congdon then chose to pursue another defense
theory, i.e., that Defendant was not present when Kelly went back to the ditch
where he had left Mark. It found
Bonnell's testimony would not have been dramatically different from Trenkle's
testimony at trial.
C
Based on
our review of the record, we conclude Defendant has not carried his burden on
appeal to show he was denied effective assistance of counsel. Under the Strickland
two-part test, Defendant has not shown either that his trial counsel's
performance was deficient under prevailing professional norms
deficient performance (i.e., it is reasonably probable he would have obtained a
more favorable outcome had his counsel's performance not been deficient). (Strickland,
supra, 466 U.S. at pp. 691-694.)
conclude Congdon's performance in representing Defendant was deficient in the
circumstances of this case. Defendant
primarily argues Congdon performed deficiently by failing to conduct an adequate
investigation into the time and cause of Mark's death and to investigate the
possibility of hiring a defense pathologist.
However, as shown by the testimonies of Congdon and McDonald described
above, Congdon investigated the possibility of hiring a defense
pathologist. He spoke with Porter, an
experienced criminal defense attorney, who referred him to Hermann, a forensic
pathologist. However, before Congdon
retained Hermann, McDonald retained him to obtain his opinion regarding the
time and cause of Mark's death. Hermann
substantially agreed with Trenkle regarding the time and cause of Mark's
death. McDonald conveyed Hermann's
opinion to Congdon. We cannot conclude,
based on the circumstances in this case, that Congdon acted unreasonably in
relying on McDonald's statements regarding Hermann's opinion and not speaking
directly with Hermann.
name="_ftnref8" title="">[8]
Furthermore,
we conclude Congdon did not act unreasonably by not pursuing another
pathologist to review the information in this case and potentially reach an
opinion different from that of Trenkle and Hermann. Before McDonald retained Hermann, he informed
Congdon that a pathologist he had used before (i.e., Posey) had agreed with
Trenkle. Therefore, Congdon had
information that two potential defense pathologists had agreed with Trenkle's
opinion before Congdon chose not to pursue another pathologist and instead
change his defense theory to the "somebody else did it" theory. Although criminal defense counsel has the
duty to investigate carefully all defenses of fact and of law that may be
available to the defendant, he or she is not required to conduct an exhaustive
investigation of potential mitigating evidence.
(In re Williams,
In the circumstances of this case, we conclude Congdon performed a
careful investigation into the time and cause of Mark's death and reasonably
chose not to obtain the opinion of a defense pathologist other than
Hermann. The reasonableness of Congdon's
tactical decision is further supported by the fact that McDonald, Kelly's
experienced defense counsel, also made a tactical decision not to present the
testimony of Hermann or another pathologist.
Contrary to Defendant's apparent assertion, the fact that O'Melveny, in
subsequently moving for a new trial, was able to obtain Bonnell's opinion,
which differed from that of Trenkle's, does not, in itself, prove Congdon
performed deficiently by not seeking the opinion of Bonnell or another
pathologist after Hermann reached an opinion substantially the same as Trenkle's.
Furthermore,
we conclude Congdon did not perform deficiently when, after learning of
Hermann's opinion, he changed his defense theory to the "somebody else did
it" theory. Congdon presumably had
a police report showing Luke told police that Kelly told him he (Kelly) and
ditch where Mark was. That evidence
would have supported an inference by the jury that Aaron, and not Defendant,
was the person who accompanied Kelly back to the ditch and struck Mark two or
three times with the pipe. Although
Congdon also investigated possible alibi witnesses whose testimony was too
inconsistent to use at trial, we cannot conclude Congdon acted unreasonably by
relying on the expected testimony of Luke as proof at trial that it was Aaron
(or someone else), and not Defendant, who accompanied Kelly back to the ditch
and struck Mark in the head with the pipe.
Defendant appears to argue Congdon performed deficiently by not
interviewing Luke before trial to ascertain whether he would testify at trial
consistently with his statements to police.
Although in hindsight such an interview may have caused Congdon to
refrain from presenting Luke's contrary trial testimony and/or what ultimately
was an unsuccessful defense, we cannot conclude in the circumstances of this
case that it was deficient performance for Congdon to rely on Luke's statements
to police, as reflected in the police report, in deciding to present Luke's
testimony at trial in support of a "somebody else did it" defense theory. Defendant has not presented any evidence or
case law showing otherwise. Accordingly,
Defendant has not carried his burden on appeal to show, by a preponderance of
the evidence, that Congdon's performance was deficient under prevailing
professional norms. (
at pp. 215-217; In re Edward S.,
Defendant was deficient, we nevertheless would conclude his deficient
performance did not prejudice Defendant.
To show prejudice, Defendant must show there is a reasonable probability
that he would have received a more favorable result had Congdon's performance
not been deficient. (
supra, 43 Cal.3d at pp.
217-218.) "When a defendant
challenges a conviction, the question is whether there is a reasonable
probability that, absent the [trial counsel's] errors, the factfinder would
have had a reasonable doubt respecting guilt." (Strickland,
at p. 695.) "A reasonable
probability is a probability sufficient to undermine confidence in the
outcome." (People v. Williams, supra,
16 Cal.4th at p. 215.)
Defendant
has not carried his burden on appeal to show he was prejudiced by Congdon's
purported deficient performance. As the
People note, Trenkle acknowledged Mark's head injuries could have been caused
by stomping and there was no way to determine the time of his death. Yet the jury rejected the theory that Aaron,
and not Kelly and Defendant, caused Mark's death. McDonald, Kelly's counsel, argued in closing
that Mark may have died because of Aaron's stomping on his head. McDonald argued Trenkle's testimony was
equivocal regarding the time and location of Mark's death or what mechanism
(i.e., stomping versus striking with a pipe) caused the linear lacerations on
Mark's head. Nevertheless, the jury
rejected that theory when it found Kelly guilty on both counts. In also finding Defendant guilty on both
counts, the jury presumably rejected the theory that Aaron caused Mark's death.
Furthermore,
based on our review of the record, there is overwhelming evidence of
Defendant's guilt on both counts. Kelly's
trial testimony directly implicated Defendant in the actions leading to and
causing Mark's death. Kelly testified he
and Defendant carried Mark out of the apartment, loaded him onto the truck, and
drove him to the ditch where he was dumped.
Kelly also testified that both he and Defendant returned to the ditch to
make sure Mark was dead. After Kelly hit
Mark with a pipe a couple of times, Defendant hit him with the pipe two or
three times. Other witnesses
corroborated much of Kelly's testimony.
Richard and Luke testified they saw Kelly and Defendant carry Mark out
of the apartment. Richard testified he
saw them lift Mark onto the bed of the truck.
Luke testified Kelly later told him he (Kelly) and Defendant returned to
the ditch to check on Mark. Courtney
testified Defendant later told her he would take the blame if police found out
about Mark. Kelly and Defendant later
told Aaron and Andrew what they did to Mark and that he had been alive when
they took him out of the apartment.
Aaron testified that when Mark was at the apartment, he was alive and
did not have the head injuries later found on him at the ditch. A crime scene specialist testified the blood
spatter on the soil around Mark in the ditch showed he received multiple
strikes to the head at that location.
Likewise, Trenkle testified the color of abrasions on Mark's body showed
he was alive when he sustained those abrasions.
Based on the blood inside Mark's scalp and large pool of blood found
around his body, Trenkle concluded Mark was alive when he sustained the blows
to his head and for some time thereafter.
Based on
the above evidence and our review of the entire record, we conclude it is not
reasonably probable Defendant would have obtained a more favorable result had
his counsel's performance not been deficient.
Even had Congdon investigated and presented an opinion of a defense
pathologist and not chosen the defense theory that "somebody else did
it," it is highly likely Defendant would nevertheless have been convicted
of both kidnapping and first degree murder.
(Strickland,
Alternatively stated, Congdon's purported deficient performance is
insufficient to undermine our confidence in the outcome of Defendant's
trial. (People v. Williams, supra,
16 Cal.4th at p. 215.) Therefore,
because Defendant has not carried his burden on appeal to show either that
Congdon's performance was deficient or that such purported deficient
performance was prejudicial, we conclude Defendant was not denied his
constitutional right to effective assistance of counsel. (Strickland,
at pp. 691-694.)
II
Defendant
contends the trial court abused its discretion by denying his motion for new
trial based on ineffective assistance of counsel.
A
At the
hearing on Defendant's motion for new trial based on ineffective assistance of
counsel, Defendant presented Bonnell's declaration, as quoted above. In opposition, the prosecution presented the
testimonies of Congdon and McDonald, as described above. In denying Defendant's motion for new trial,
the trial court found Congdon did not commit any unprofessional errors in
representing Defendant. It found
Defendant did not show Congdon's actions or inactions were not anything a
reasonable attorney would have done in the same or similar circumstances of
this case. The court noted Hermann's
opinion basically substantiated the opinions of the other pathologists and was
conveyed by McDonald to Congdon. Congdon
then chose to pursue another defense theory, i.e., that Defendant was not
present when Kelly went back to the ditch.
The court found Bonnell's testimony would not have been dramatically
different from Trenkle's testimony at trial.
B
We conclude
the trial court did not abuse its discretion by denying Defendant's motion for
new trial. On appeal, we review a trial
court's ruling on a motion for new trial for abuse of discretion. (People
v. Callahan (2004) 124 Cal.App.4th 198, 201; People v. Hinks (1997) 58 Cal.App.4th 1157, 1160.) In reviewing a trial court's ruling on a
motion for new trial based on ineffective assistance of counsel, one court has
stated:
"The trial judge is the one
best situated to determine the competency of defendant's trial counsel. Where, as here, defendant is represented by
different counsel at the motion for a new trial and the issue is called to the
trial court's attention, the trial judge's decision is especially entitled to
great weight and we defer to his fact finding power. Absent a showing of clear and unmistakable
abuse, we will not disturb his decision."
(People v. Wallin (1981) 124
Cal.App.3d 479, 483.)
"Since it is the trial court's function in the first
instance to assess witness credibility and resolve conflicts in the evidence,
the appellate court should give great deference to the trial court's factual
determinations [citation] when deciding whether there has been an abuse of
discretion." (People v. Hinks, supra,
58 Cal.App.4th at p. 1160.) However,
because ineffective assistance claims present mixed questions of law and fact,
they are generally subject to independent review as predominantly questions of
law. (In re Resendiz (2001) 25 Cal.4th 230, 248-249; Ledesma, supra, 43 Cal.3d
at p. 219.) Accordingly, although we defer
to a trial court's factual and credibility determinations, we independently
determine whether, based on those determinations, a defendant's counsel has
provided ineffective assistance.
In ruling
on Defendant's motion for new trial, the trial court in this case considered
the same evidence we have in determining whether he was denied effective
assistance of counsel. In denying
Defendant's motion, the court implicitly made factual and credibility
determinations adverse to Defendant.
Based on those determinations, we independently determine whether
Defendant was denied effective assistance of counsel. Because we concluded in part I, above, that
Defendant was not denied effective assistance of counsel, we likewise conclude
the trial court did not abuse its discretion by also concluding he was not
denied effective assistance of counsel and denying his motion for new trial.
Contrary to
Defendant's assertion, the fact that the trial court may have misstated some of
the evidence in ruling on his new trial motion does not show the court abused
its discretion in denying his motion. He
argues the court erred in stating Luke testified he had told police that Kelly
told him he (Kelly) and Aaron had gone back to the ditch. He correctly notes the record shows Luke
testified his statement to police was that Kelly told him he (Kelly) and Aaron
took Mark's body and dumped it in the ditch and not that they went back to the
ditch together.
title="">[9] He also argues the court erred by finding
Bonnell's opinion (set forth in his declaration in support of Defendant's new
trial motion) would not have been "dramatically different than what
was" presented at trial (i.e., Trenkle's testimony). Nevertheless, applying the proper standard of
review, any such misstatement or misunderstanding of the evidence by the trial
court does not affect our independent conclusion that Defendant was not denied
effective assistance of counsel and therefore the trial court did not abuse its
discretion by denying his motion for new trial.
Furthermore, Defendant does not persuade us the trial court abused its
discretion because it did not consider all the material facts or applicable
legal principles. We conclude the trial
court did not abuse its discretion by denying Defendant's motion for new
trial. (People v. Callahan, supra,
124 Cal.App.4th at p. 201; People v.
Hinks, supra, 58 Cal.App.4th at
p. 1160; People v. Wallin,
III
Counsel
Defendant
contends he was denied his constitutional right to effective assistance of
counsel when O'Melveny, his new appointed counsel who represented him in his
motion to new trial, failed to correct counsel's misstatements regarding the
felony murder doctrine.
A
After the
jury found Defendant guilty of first degree murder and kidnapping, the trial
court appointed O'Melveny to represent him regarding whether there were grounds
to file a motion for new trial.
O'Melveny filed a motion for new trial based, in part, on a claim that
Defendant was denied effective assistance of counsel. In opposing Defendant's motion for new trial,
the prosecution filed papers arguing:
"The defense offers no
expert who would be willing to testify to an opinion different from that of Dr.
Trenkle's[.] In fact, due to the Felony
Murder Rule and the instructions given to the jury, the only opinion that could
realistically have any chance of altering the outcome would be an opinion that
the victim died before he was even put into the truck. The problem with that opinion, assuming one
could even find such an opinion, is that it would contradict all of the
evidence put forth during the trial. The
eyewitness evidence, the physical evidence and the conduct and statements of
the defendants [were] all consistent with [Mark] being clubbed at the ditch and
dying at the ditch."
At the
hearing on Defendant's motion for new trial, McDonald, Kelly's counsel,
testified that he believed Hermann's testimony would not be helpful to Kelly's
defense and the only opinion that possibly could have been helpful was
Hermann's indication that Mark could have died as a result of injuries
inflicted by Aaron had Mark been left unattended. However, McDonald concluded that testimony
would not be helpful to the defense because it was a felony murder case. The prosecution could have argued that
because Kelly kidnapped and took Mark to a place where he could not receive
medical attention, Mark did not have a chance to survive the injuries inflicted
by Aaron. McDonald also stated his
belief that if Mark had died the minute he was put onto the truck based on
injuries from Aaron's beating, the jury could have found both Kelly and
Defendant guilty of felony murder.
McDonald discussed this information with Congdon, Defendant's trial
counsel. The trial court denied
Defendant's motion for new trial.
B
Defendant
asserts he was denied effective assistance of counsel because O'Melveny did not
correct misstatements of the felony murder doctrine made by the prosecutor and
McDonald. He argues they misstated the
law when they argued, in effect, Defendant and Kelly could have been found
guilty of first degree murder under the felony murder doctrine if Mark had died
after they kidnapped him, even if Aaron had previously inflicted the mortal
injury on Mark that resulted in his death.
To the extent they misstated the felony murder doctrine (which we
discuss in part IV below), O'Melveny probably should have corrected those
misstatements. However, Defendant does
not present any evidence or case law showing O'Melveny's failure to correct
those misstatements constituted deficient performance under prevailing
professional norms.
Nevertheless,
assuming arguendo O'Melveny performed deficiently by not correcting the
misstatements by the prosecutor and McDonald on the felony murder doctrine, we
conclude Defendant was not prejudiced by that deficient performance. Defendant argues, in effect, it is reasonably
probable the trial court would have granted his motion for new trial had
O'Melveny corrected those misstatements.
He argues: "It is reasonably probable that had O'Melveny advised
the court that both the prosecutor and McDonald had misstated the law on felony
murder and that a pathologist did not have to find that [Mark] was dead before
being put in the truck in order to preclude finding [Defendant] guilty on Count
one under a felony murder theory, the court would not have found reasonable
Congdon's determination that using a pathologist 'would not be beneficial' to
his client's case and that he should 'pursue another path,' i.e., that
[Defendant] 'was not the person there at the time.' " We are not persuaded by that argument. Furthermore, assuming the trial court would
have found Congdon's performance deficient had it been advised of those
misstatements on the felony murder doctrine, we nevertheless conclude there is
nothing in the record to indicate it is reasonably probable the trial court
would have also found that deficient performance was prejudicial (i.e., it was
reasonably probable Defendant would have obtained a more favorable result had
Congdon not performed deficiently).
Accordingly, based on our review of the entire record, we conclude
Defendant has not carried his burden on appeal to show he was denied effective
assistance of counsel when O'Melveny, his new appointed counsel, in moving for
a new trial did not correct misstatements of the felony murder doctrine. (Strickland,
supra, 466 U.S. at pp. 691-694.)
IV
Ineffective
Assistance of Counsel for Failure to Request
Pinpoint
Instruction on Felony Murder Doctrine
Defendant
contends he was denied effective assistance of counsel when Congdon failed to
request a pinpoint instruction on the felony murder doctrine. He argues Congdon should have requested a
pinpoint instruction that if Defendant did not form the intent to kidnap Mark
until after he (Mark) had been mortally wounded by Aaron, then Defendant could
not be guilty of felony murder.
A
"[T]he
trial court normally must, even in the absence of a request, instruct on
general principles of law that are closely and openly connected to the facts
and that are necessary for the jury's understanding of the case." (People
v. Carter (2003) 30 Cal.4th 1166, 1219.)
In addition, "a defendant has a right to an instruction that
pinpoints the theory of the defense [citations]; however, a trial judge must
only give those instructions which are supported by substantial
evidence." (People v. Ponce (1996) 44 Cal.App.4th 1380, 1386.) Furthermore, "a trial court need not
give a pinpoint instruction if it is argumentative [citation] [or] merely
duplicates other instructions [citation] . . . ." (People
v. Bolden (2002) 29 Cal.4th 515, 558.)
"A pinpoint instruction 'relate[s] particular facts to a legal
issue in the case or "pinpoint[s]" the crux of a defendant's case
. . . .' " (
214.)
B
First
degree murder includes murder that is willful, deliberate, and premeditated
or attempted perpetration of kidnapping (i.e., felony murder). (§ 189.)
In this case, the trial court instructed the jury that Defendant could
be found guilty of first degree murder under either of those two theories. The court instructed on the felony murder
doctrine with CALCRIM Nos. 540A, 540B, and 549.
The court instructed with CALCRIM No. 540A in pertinent part:
"The defendant is charged
in Count 1 with murder under a theory of felony murder. To prove that the defendant is guilty of
first-degree murder under this theory, the People must prove that:
"One, the defendant
committed kidnapping;
"Two, the defendant
intended to kidnap and;
"Three, while committing
kidnapping, the defendant did an act that caused the death of another person.
"A person may be guilty of
felony murder even if the killing was unintentional, accidental or negligent. [¶] . . . [¶]
"The defendant must have intended to commit the felony of kidnapping
before or at the time of the act causing death. It is not required that a person die
immediately as long as the act[s] causing the death in the felony are part of
one continuous transaction. It is not
required that the person killed be the victim of the felony." (Italics added.)
Regarding a killing and kidnapping for which the defendant
is not the direct perpetrator, the court instructed with CALCRIM No. 540B in
pertinent part:
"The defendant is charged
in Count 1 with murder under a theory of felony murder. The defendant may also be guilty of murder
under a theory of felony murder even if another person did the act that
resulted in the death. I will call the
other person the perpetrator.
"To prove that the
defendant is guilty of first-degree murder under this theory, the People must
prove that:
"One, the defendant
committed or aided and abetted kidnapping;
"Two, the defendant
intended to commit or intended to aid and abet the perpetrator in committing
kidnapping. If the defendant did not
personally commit kidnapping, then a perpetrator who the defendant was aiding
and [abetting] personally committed kidnapping; and
"Four, while committing
kidnapping, the perpetrator did an act that caused the death of another person.
"Five, there was a logical
connection between the act of death and the
kidnapping. . . . [¶]
"A person may be guilty of
felony murder, even if the killing was unintentional, accidental, or negligent. . . .
[¶] . . . [¶]
"The defendant must have
intended to commit or aid and abet kidnapping [before or at the time of the act
causing the death.] It is not required
that the person die immediately, as long as the act causing the death and
felony are part of one continuous transaction.
It is not required that the defendant be present when the act causing
the death occurs."
C
Defendant
asserts he was denied effective assistance of counsel because Congdon did not
request a pinpoint instruction stating that if Defendant did not form the
intent to kidnap Mark until after he (Mark) had been mortally wounded by Aaron,
then Defendant could not be guilty of felony murder. "Under the felony-murder rule, 'the
evidence must establish that the defendant harbored the felonious intent either
prior to or during the commission of the acts which resulted in the victim's
death . . . .' "
(People v. Ainsworth (1988) 45
Cal.3d 984, 1016.) Alternatively stated,
"the existence of [the required felonious] intent is not measured at the
time of the victim's death but at the time of the acts that caused the
death." (People v. Anderson (2006) 141 Cal.App.4th 430, 446.) Accordingly, "when the killer forms the
intent to commit an independent felony only after delivering the fatal blow to
the victim, the felony-murder doctrine does not apply." (People
v. Lewis (2001) 25 Cal.4th 610, 647; see also People v. Green (1980) 27 Cal.3d 1, 54, fn. 44 [no felony murder if
intent to commit felony "arose after the infliction of the fatal wound"];
People v. Anderson (1968) 70 Cal.2d
15, 34 ["[T]he evidence must establish that the defendant harbored the
felonious intent either prior to or during the commission of the acts which
resulted in the victim's death; evidence which establishes that the defendant
formed the intent only after engaging in the fatal acts cannot support a
verdict of first degree murder based on section 189."].) In People
v. Gonzales (1967) 66 Cal.2d 482, 486, the court held the jury was properly
instructed that intent to rob formed after infliction of mortal wounds is
insufficient to support a finding of first degree felony murder. Regarding aider and abettors, one court
stated: "It would be an anomalous result to hold that an aider and abettor
who is not himself the killer, and who does not himself have an intent to steal
until after the victim has been mortally wounded, may be guilty of felony
murder if the person he is aiding and abetting intended to commit robbery
before killing the victim." (
1386, 1396.)
Assuming
arguendo Defendant waived his right to a pinpoint instruction on felony murder
and his counsel performed deficiently by not requesting such a pinpoint
instruction, we nevertheless conclude Defendant has not carried his burden to
show he was denied effective assistance of counsel because he has not shown he
was prejudiced by that deficient performance.
Defendant does not recite the specific language of the pinpoint
instruction he believes his counsel should have requested
| Description | Christopher Dean DaCosta (Defendant) appeals a judgment following his jury convictions of first degree murder (Pen. Code, § 187, subd. (a))[1] and kidnapping (§ 207, subd. (a)). On appeal, he contends: (1) he was denied his constitutional right to effective assistance of counsel because his defense counsel did not competently investigate his defenses; (2) the trial court erred by denying his motion for new trial based on ineffective assistance of counsel; (3) he was denied his constitutional right to effective assistance of counsel when, in moving for a new trial, his new appointed counsel did not correct misstatements of law; (4) he was denied his constitutional right to effective assistance of counsel when his defense counsel did not request a pinpoint instruction on the felony murder doctrine; (5) the trial court erred by imposing consecutive sentences for his two offenses in violation of section 654; and (6) the abstract of judgment should be corrected to reflect the number of presentence custody credits to which he is entitled. |
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