P. v. >Griffin>





















Filed 6/5/13 P. v. Griffin CA4/2













NOT TO BE PUBLISHED IN OFFICIAL REPORTS





California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.





IN THE COURT OF APPEAL OF THE STATE OF >CALIFORNIA>



FOURTH APPELLATE DISTRICT



DIVISION TWO




>

THE PEOPLE, Plaintiff and Respondent, v. RAYMOND GRIFFIN, Defendant and Appellant.

E055126 (Super.Ct.No. RIF112804) OPINION

APPEAL from the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside County. Michael D. Wellington, Judge. (Retired judge of the San Diego Super. Ct.,
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed in part and reversed in
part.

Patricia Ihara, 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, Senior
Assistant Attorney General, and A. Natasha Cortina and Ronald A. Jakob, Deputy
Attorneys General, for Plaintiff and Respondent.

Pruitt, Chapman, and Newell: The three witnesses who implicated defendant
Raymond Griffin in a double murder. All
three were crackheads; all three had prior felony convictions.

Robert Pruitt testified that he saw defendant
shoot one of the two victims in the head; while fleeing, Pruitt heard more
shots.

Sheila Chapman testified that she saw defendant
driving toward the site of the shooting.
Chapman resembled one of the victims; defendant made a U‑turn to
take a closer look at her before driving on.
Minutes later, she heard shots.

Michael Newell told police that defendant had
admitted to him that he shot the victims.
A few months later, defendant beat Newell with a brick, “for snitching.”

A strong case, one would think. And, indeed, a jury found defendant guilty on
two counts of first degree murder (Pen.
Code, §§ 187, subd. (a), 189), as well as unlawful possession of a firearm
(Pen. Code, § 12021, subd. (a)(1)), unlawful possession of ammunition
(Pen. Code, § 12316, subd. (b)(1)), and threatening a witness (Pen. Code,
§ 140), with various enhancements.

When defendant filed a href="http://www.fearnotlaw.com/">motion for new trial, however, it became
clear that his trial counsel had rendered ineffective assistance in numerous
respects. First, with regard to Pruitt,
trial counsel failed to bring out the fact that Pruitt had testified pursuant
to a plea bargain. Under that bargain,
if Pruitt testified (in accordance with his testimony at the preliminary
hearing) that defendant was the shooter, his sentence on other charges would be
reduced from 25 years to life to just 10 years.
Trial counsel also failed to bring out numerous inconsistencies between
Pruitt’s testimony at the preliminary hearing and his testimony at trial. In addition, trial counsel failed to bring
out the fact that Pruitt saw the crime scene after the shooting. Thus, the prosecutor was able to argue misleadingly
that Pruitt had no reason to lie; that Pruitt’s testimony had never changed;
and that Pruitt’s testimony was corroborated by physical evidence at the scene.

Second, with regard to Chapman, trial counsel
failed to bring out the fact that Chapman was Pruitt’s girlfriend. He also failed to bring out inconsistencies
between Pruitt’s statements to Chapman and Pruitt’s testimony at trial. As a result, the prosecutor was able to argue
misleadingly that Pruitt and Chapman corroborated each other and that they had
had no opportunity to coordinate their stories.

Third, with regard to Newell, trial counsel
failed to introduce evidence that Newell had eventually admitted that his
statement that defendant had admitted the shooting was false. He also failed to introduce evidence that
defendant beat Newell, not for snitching on defendant, but for snitching on
defendant’s brother.

And this is not all. The trial court found additional instances of
ineffective assistance. Nevertheless, it
found that the ineffective assistance was not prejudicial.

Reviewing this prejudice finding independently,
as we are required to do, we conclude that it was erroneous. Trial counsel’s ineffective assistance —
which gave all three of the key witnesses against defendant a false aura of
veracity — undermines our confidence in the outcome.

I

FACTUAL BACKGROUNDhref="#_ftn1" name="_ftnref1" title="">^[1]

A. The Discovery of the
Shooting.

On February 28, 2003, at 1:34 a.m., the
police went to University and Douglass Avenues in Riverside in response to
several “shots fired” calls. In a
parking lot, next to the Economy Inn, they found the bodies of Tanya Morris and
Darrin Hutchinson. Each victim had been
shot in the head, twice, at close range.
At least three of the bullets had been fired from the same gun; the
fourth was too damaged to permit comparison.
Hutchinson was holding a plastic bag, and there were beer cans nearby.

B. The Testimony of Sheila
Chapman.

Witness Sheila Chapman had prior convictions for
burglary, selling drugs, and unlawful possession of ammunition and four prior
convictions for theft.

At the time of the shooting, Chapman was living
at the Economy Inn. She was using crack
cocaine; “[s]ometimes” she worked as a prostitute. She was a close friend of victim Morris and
of Morris’s family. She had been told
that she resembled Morris from behind.

On February 28, 2003, around 1:30 a.m.,
Chapman was walking west on University Avenue.
She noticed a red car, like a Honda Civic,href="#_ftn2" name="_ftnref2" title="">^[2] going east, toward the Economy Inn. The driver looked at her. He then made a U‑turn and drove past
her slowly. She saw his face. He was wearing a gray sweatshirt, with a
hood. He turned around again and pulled
up next to her. They looked at each
other again. He then drove away, toward
the Economy Inn.

Two or three minutes later, she heard four
shots. In court, Chapman identified
defendant as the driver she had seen.

C. Michael Newell’s
Statement to Police.

On or about March 18, 2003, witness Michael
Newell was arrested on an unrelated drug possession charge. The police questioned him about the
shooting. He told them, “[I]f I’m in
custody, I ain’t got nothin’ to say . . . .” They responded that, if he had “something
good that we can use, . . . we will contact the District Attorney’s
office about your pending case . . . .”

Newell then said that “Big Wack” had killed the
victims. He identified defendant as “Big
Wack.” He explained that he had been
visiting defendant’s brother when defendant showed up. Defendant said that, although the police no
longer suspected him, he was “the one [who] shot the
muthafuckers . . . .”
One of the victims had “jacked” him, “and the other one knew about
it . . . .”
Defendant mentioned that one of the victims was from Comptonhref="#_ftn3" name="_ftnref3" title="">>^[3]
and that he was warring with Blacks from Compton (using the “N” word).

Newell claimed that he was glad to talk to
detectives because he wanted to “turn[] State[’]s evidence,” and the “uniform
cops, they couldn’t do shit for me . . . .”

According to a gang expert, both defendant and
Newell were members of the Main Street Crips.
On March 21, 2003, the police searched 1815 Seventh Street and 3511
Chicago Avenue; each location was within blocks of the crime scene. The searches revealed that these were crack
houses operated by defendant. There was
also expert testimony that if there was even a rumor that someone had stolen
drugs or money from defendant, it would be “almost his job” to kill that
person.

D. The Testimony of Robert
Pruitt.

Witness Robert Pruitt had two prior convictions
for robbery and one for drug possession.
In addition, he was serving a “three strikes” sentence for aiding and
abetting the sale of cocaine.

At the time of the shooting, Pruitt was living at
the Economy Inn and using crack cocaine.
On the night of February 27-28, 2003, he was sitting out on the front
stairs of the motel. His girlfriend,
Sandra Mata, was with him. Around 1:00
or 2:00 a.m., he saw a group of five people — three men and two
women. One of the women was victim Tanya
Morris. Pruitt knew Morris and greeted
her. One of the men was victim Darrin
Hutchinson; at the time, however, Pruitt did not know Hutchinson. Hutchinson was carrying some beer in a
plastic bag.

The group walked past Pruitt, then went around
the side of the motel, into the parking lot.
Moments later, Pruitt saw defendant walking the way the group had
gone. Defendant was wearing a black
hooded sweatshirt, with the hood over his head.

Pruitt knew defendant as “Wack” or “Big
Wack.” They had first met some 15 years
earlier, when they were both living in Los Angeles. Defendant had been a member of the Main Street
Crips; Pruitt had been a member of the rival East Coast gang.

Pruitt said, “What’s going on, Wack?” Defendant said, “Nothing,” but added, “I’ll
talk to you later. I have something
. . . to do, something to take care of right quick.” Suddenly, Pruitt remembered a rumor that
Morris “had been involved in a robbery of one of the defendant’s drug
spots[.]” He went and peeked around the
corner of the motel.

Pruitt saw defendant with the other five
people. Defendant seemed to be
“exchanging some words” with Hutchinson.
Pruitt then saw defendant take out a gun, point it at Hutchinson’s head,
and fire. Pruitt turned and went up to a
motel room. As he went, he heard three
or four more shots. Once inside, he
looked out a window and saw two bodies.

Some weeks after the killing, the police
interviewed Pruitt. He told them that he
saw Morris, then saw defendant, and then heard shots. He did not tell them that he actually saw
defendant shooting, because he was scared and “didn’t want to get involved.”

E. The Beating of Newell.

On July 4, 2003, around 2:00 a.m., the
police found Newell lying on the ground and screaming. He was on the property directly behind
defendant’s crack house at 1815 Seventh Street.
He had several broken fingers, several broken ribs, and a broken lower
right leg. His right ankle was broken
and “pointing a different direction than normal.”

Newell told police that he had gone to 1815
Seventh Street to visit a friend, but when he got there, he found defendant,
defendant’s nephew, and defendant’s mother waiting for him. Defendant said “This is for snitching,” and
indicated that he was going to shoot Newell.
Newell ran away through the back yard, but when he tried to hop the back
yard fence, defendant grabbed his foot.
Defendant and the other two people then beat him with bricks.

F. Newell’s Testimony.

At the time of trial, Newell was in custody for
receiving stolen property. He testified
that he used to be a Main Street Crip.
He admitted having known defendant “[p]ractically all our lives.”

Newell claimed not to remember any statements
that he had made to police. He did admit
that his 2003 drug possession “case was dropped, and [he] got out[.]” He also admitted that he had been “assaulted
pretty badly” and hospitalized.

G. The Testimony of
Defendant.

Defendant testified in his own behalf. He admitted prior convictions for unlawful
possession of a firearm, the grossly negligent discharge of a firearm, and
possession of cocaine for sale. He
admitted that he had once been a member of the Main Street Crips. His moniker had been “Wacky,” “Wack” or “Big
Wack.” He testified, however, that he
left the gang in 1989, because he did not want to have to kill anybody. In retaliation, some friends of his shot him
in the back and beat him. As a result of
this (plus a bout of cancer), he wore leg braces and walked with a limp.

“[D]ue to my disability,” defendant testified,
“my only . . . means of survival was to sell narcotics.” He admitted selling drugs at the Seventh
Street and Chicago Avenue locations.
However, he denied that anyone had ever robbed his drug operations.

Defendant testified that, on the night of
February 27-28, 2003, he was in Orange County, visiting some “young ladies” he
had met a week earlier. He went with one
Alex Camarena, who lived at the Seventh Street crack house. They left Riverside around 4:30 or 5:00 p.m. On the way, they met up with Alex’s
girlfriend, Gracie. When they got back
to Riverside, between 1:30 and 2:00 a.m., they saw the police already at
the crime scene.

Defendant could not remember any of the girls’
names. He did not know to what city in
Orange County he went. On the way there,
Alex drove. Defendant drove back but did
not remember the route; Alex was giving him directions.

Defendant denied killing the victims. He did not know Hutchinson. He knew Morris “[t]hrough the neighborhood,”
and he considered her a friend. He was
“upset and hurt” when she was killed. He
even obtained some information about the murders, which he passed along to her
sister. When he learned that he was
wanted for homicide, he turned himself in.

Defendant admitted having an “altercation” with
Newell, not because Newell was a snitch, but because defendant found Newell
outside his Seventh Street crack house, taking money from his customers. He told Newell to leave, but Newell threw a
punch at him. “[M]utual combat”
ensued. After Newell hit defendant with
a brick, defendant took it away and started hitting Newell with it. When Newell kicked him, he twisted Newell’s
leg.

H. The Testimony of Alex
Camarena.

When Alex Camarena testified, he was in custody
for a domestic violence offense. He had
two prior convictions for selling drugs.
He largely corroborated defendant’s alibi. However, he testified that they left
Riverside between 5:00 and 6:00 p.m., and they went to Santa Ana. He claimed to be unable to remember Gracie’s
last name, even though he had gone out with her for almost a year. He and defendant left Orange County around
2:45 a.m. He guided defendant onto
the freeway, then went to sleep.

I. Rebuttal Evidence.

On March 21, 2003, the police first interviewed
both defendant and Camarena. Neither of
them said that they had been in Orange County on the night of the killing. To the contrary, defendant said that he
believed that he had been at the Seventh Street address.

II

PROCEDURAL BACKGROUND

A. Defendant’s Conviction.

In November 2007, after a jury trial, defendant
was found guilty as follows:

Counts 1 and 2:
First degree murder (Pen. Code, § 187, subd. (a)), with gang and
multiple-murder special circumstances (Pen. Code, § 190.2, subds. (a)(3),
(a)(22)) and with firearm enhancements (Pen. Code, § 12022.53, subd. (d)).

Count 3:
Unlawful possession of a firearm (Pen. Code, § 12021, subd.
(a)(1)).

Count 4:
Unlawful possession of ammunition (Pen. Code, § 12316, subd. (b)(1)).

Count 5:
Threatening a witness (Pen. Code, § 140), with an enhancement for
personally inflicting great bodily injury (Pen. Code, § 12022.7, subd.
(a)).

Defendant admitted three 1-year prior prison term
enhancements. (Pen. Code, § 667.5,
subd. (b).) Accordingly, in April 2008,
he was sentenced to 10 years 8 months in prison, plus two consecutive terms of
25 years to life, plus two consecutive terms of life without the possibility of
parole.

B. Defendant’s First
Appeal.

Defendant appealed. In January 2010, we filed our opinion. (People
v. Griffin (E045561, Jan. 27, 2010) [nonpub. opn] (Griffin I).) In it, we
noted that Pruitt had received a plea deal that required him to testify
truthfully at defendant’s trial. In
return, Pruitt’s sentence on unrelated charges would be reduced from 25 years
to life to just 10 years. (>Griffin I, at p. 13.)

The plea deal further provided that whether
Pruitt had testified truthfully would be determined by comparing his testimony
at defendant’s trial to his testimony at defendant’s preliminary hearing. As Pruitt’s trial court put it: “He nailed himself down in terms of his
testimony in the preliminary[ ]hearing transcript. If he testifies at the trial that
. . . ‘My memory’s got cloudy, and I don’t really remember any kind
of shooting,’ then he may find himself back in the world of twenty-five years
to life. [¶] If there’s some
little tiny detail that maybe he remembers differently now that several years
ha[ve] passed, I’m forgiving in that regard . . . . Because witnesses are human. They’re not computers. If it’s anything in between, I’ll do my best
to decide the in between.”

We held that defendant’s trial counsel (Christopher
Dombrowski) had rendered ineffective assistance by failing to bring out the
fact that Pruitt was testifying pursuant to a plea deal. (Griffin I,
at pp. 22-23.) However, we also
held that the ineffective assistance was not prejudicial, for four reasons:

1. Pruitt’s
testimony that he saw the shooting was corroborated by the fact that he knew
details of the shooting scene. (>Griffin I, at p. 24.)

2. Chapman and Newell corroborated Pruitt’s
testimony. (Griffin I, at p. 24.)

3. Pruitt’s plea deal was “only mildly”
impeaching, particularly as it required him to testify truthfully. (Griffin I,
at p. 25.)

4. Defendant’s alibi testimony was
“strikingly unconvincing.” (>Griffin I, at p. 25.)

We also held that the prosecutor had committed
misconduct by stating falsely, in closing argument, that Pruitt did not have a
plea deal.href="#_ftn4" name="_ftnref4" title="">^[4] Defendant’s trial counsel, however, forfeited
the misconduct by failing to object. (>Griffin I, at pp. 15-19.)

Likewise, the prosecutor (Brandon Smith) had
committed misconduct by stating in closing argument that there was “no
connection” between Pruitt and Chapman. Actually, he knew from the href="http://www.mcmillanlaw.com/">preliminary hearing testimony that
Pruitt and Chapman were boyfriend and girlfriend. Again, however, defendant’s trial counsel
forfeited the misconduct by failing to object.
(Griffin I, at pp. 26-28.)

Finally, we held that the trial court had erred
by denying defendant’s posttrial Marsden
motion.href="#_ftn5" name="_ftnref5" title="">^[5] (Griffin I,
at pp. 37-44.) We concluded: “[W]e have already determined that defense
counsel’s performance was objectively unreasonable in at least one
instance. Admittedly, we have also
determined that that instance was not prejudicial. Nevertheless, to prevail on a >Marsden motion, the defendant need only
show incompetent representation, not prejudice.
[Citations.] It follows that, on
remand, the trial court would be required, as a matter of law of the case, to
grant the Marsden motion.

“It does not equally follow that the trial court
would be required to grant a motion for new trial based on ineffective
assistance. Indeed, in that situation,
law of the case would work the other way — as long as the only asserted
instance of ineffective assistance is the failure to impeach Pruitt, the trial
court will be required to deny the motion, because we have held that
that . . . instance was not prejudicial. New counsel, however, may discover and decide
to assert other instances of ineffective assistance. . . .

“Accordingly, we will reverse conditionally, with
directions to appoint new counsel and to set the matter for resentencing. However, unless a motion for new trial is
made and granted, or other good cause is shown, the trial court shall reinstate
the judgment.” (Griffin I, at pp. 43-44.)

C. Proceedings on Remand.

On remand, the case was assigned to the same
judge who had presided over the trial. The
trial court duly appointed new counsel, who filed a href="http://www.fearnotlaw.com/">motion for new trial based on ineffective
assistance of trial counsel.href="#_ftn6"
name="_ftnref6" title="">^[6] The motion asserted the following instances
of ineffective assistance:

1. Regarding Pruitt:

a. Failing
to introduce evidence of:

i. Pruitt’s
plea deal.

ii. Inconsistencies
between Pruitt’s trial testimony and his preliminary hearing testimony.

b. Failing
to object to the prosecutor’s false statement in closing argument that Pruitt
was not getting any benefit from testifying.

2. Regarding Chapman:

a. Failing
to introduce evidence of:

i. Chapman’s
preliminary hearing testimony that she and Pruitt had discussed the shooting.

ii. Chapman’s
relationship with Pruitt.

b. Failing
to object to the prosecutor’s false statement in closing argument that there
was no connection between Pruitt and Chapman.

3. Regarding Newell: Failing to introduce evidence of Newell’s
admission to a defense investigator that his statement to the police had been coerced
and false.

4. Regarding
defendant’s alibi and alibi witness (Camarena):

a. Failing
to introduce evidence that, in October 2003, defendant told the police about
his alibi.

b. Failing
to object to the prosecutor’s false statement in closing argument that
defendant never told the police about his alibi.

c. Failing
to introduce evidence that, in October 2003, Camarena told the police about
defendant’s alibi.

d. Entering
into a stipulation misleadingly suggesting that Camarena never told the police
about defendant’s alibi.

e. Entering
into a stipulation falsely stating that, in October 2003, Camarena did not give
the police the names of witnesses who could corroborate defendant’s alibi.

f. Failing
to object to the prosecutor’s false statement in closing argument that Camarena
did not give the police the names of witnesses who could corroborate defendant’s
alibi.

g. Entering
into a stipulation misleadingly stating that defendant had denied knowing Pruitt
and Newell.

h. Failing
to object to CALCRIM No. 207 (Proof Need Not Show Actual Date).

The prosecution filed a written opposition.

The trial court held an evidentiary hearing at
which trial counsel and defendant, among others, testified.

Trial counsel insisted that he had had tactical
reasons for each of his challenged actions.
However, he testified that he had very little recollection of the case;href="#_ftn7" name="_ftnref7" title="">^[7] hence, he did not recall what any of his
tactical reasons actually were.

The trial court found that trial counsel was not
credible: “ . . . I
don’t think he was straightforward with us on the stand here. It’s hard to believe that he has absolutely
no memory of these events. I’m struck by
what appeared to me [to] be a cavalier attitude towards the proceeding, and I’m
saddened by that.”

The trial court also found that trial counsel
had, in fact, rendered ineffective assistance in every claimed respect. However, it also found that the ineffective
assistance was not prejudicial. It concluded: “I’m troubled by the quality of the
representation that Mr. Griffin got.
But . . . I am not left with any conviction that the result
could have been any different[]. And so
the motion for new trial is denied.”

Defendant filed a timely notice of appeal. Thereafter, he also filed a petition for writ
of habeas corpus (case No. E056255), in which he alleges that evidence
outside the appellate record shows that trial counsel rendered ineffective
assistance in several additional ways. We
ordered the writ petition considered with the appeal for the purpose of
determining whether an order to show cause should issue. The two proceedings, however, have not been
consolidated. We will rule on the
petition by separate order.

III

TRIAL COUNSEL’S INEFFECTIVE
ASSISTANCE WAS PREJUDICIAL

The trial court found that trial counsel rendered
ineffective assistance in multiple respects; the People do not argue
otherwise. Defendant’s sole appellate
contention is that the trial court erred by finding that the ineffective
assistance was not prejudicial.

A. Standard of Review.

“[I]neffective assistance of counsel is not among
the nine grounds for ordering a new trial set forth in Penal Code section 1181,
but our Supreme Court has made clear that ‘the statute should not be read to
limit the constitutional duty of trial courts to ensure that defendants be
accorded due process of law,’ and that in appropriate circumstances ‘the issue
of counsel’s effectiveness [may be presented] to the trial court as the basis
of a motion for new trial.’ [Citation.]” (In re
Edward S. (2009) 173 Cal.App.4th 387, 398, fn. 3.)

“The standard for establishing ineffective
assistance of counsel is well settled. A
defendant must demonstrate that: (1) his attorney’s performance fell below an
objective standard of reasonableness; and (2) there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been more favorable to the defendant. [Citation.]
A reasonable probability is a probability sufficient to undermine
confidence in the outcome. [Citation.]” (People
v. Stanley (2006) 39 Cal.4th 913, 954.)

On appeal, a “two-step process is appropriate” (>People v. Taylor (1984) 162 Cal.App.3d
720, 724):

“In the first step, the trial court [will have
found] the relevant facts . . . . On appeal, all presumptions favor the trial
court’s exercise of its power to judge the credibility of witnesses, resolve
any conflicts in testimony, weigh the evidence, and draw factual
inferences. The trial court’s factual
findings, express or implied, will be upheld if they are supported by
substantial evidence. [Citation.]

“In the second step of the process, the trial
court will have decided whether, on the facts which it has found, the defendant
was deprived of his right to adequate assistance of counsel
. . . . [¶] To the extent that th[is is a] question[] of
law, the appellate court is not bound by the substantial evidence rule, but has
‘“the ultimate responsibility . . . to measure the facts, as found by
the trier, against the constitutional standard . . . .” [Citation.]
On that issue, in short, the appellate court exercises its independent
judgment.’ [Citations.]” (People
v. Taylor, supra, 162 Cal.App.3d at
pp. 724-725; cf. People v. Tafoya
(2007) 42 Cal.4th 147, 192 [on appeal from denial of motion for new trial based
on jury misconduct, “whether jury misconduct was prejudicial presents a mixed
question of law and fact ‘“subject to an appellate court’s independent
determination.”’ [Citation.]”].)

B. Failure to Consider
Cumulative Prejudice.

Preliminarily, defendant claims that the trial
court failed to consider cumulative prejudice.
We disagree. It did comment, “ . . . I
think . . . the best way to do it is look at these issues
one at a time.” However, this was
correct. It is impossible to consider
cumulative prejudice without first looking at each instance of ineffective
assistance and specifying exactly how it tended to be (or not to be)
prejudicial. Indeed, that is precisely
how defendant’s appellate counsel has organized the opening brief. Eventually, the trial court concluded, “[A]s
I go through the items, the >places where the evidence was affected
by counsel’s mistakes and what the
consequences of that were, I am not left with any conviction that the result
could have been any different[].”
(Italics added.) Thus, it did
consider cumulative prejudice.

In any event, even if the trial court did fail to
consider cumulative prejudice, the error would be harmless in light of this
appeal, because we review prejudice independently. (See Byars
v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1146 [“[i]f
independent review establishes the validity of the judgment, then the error is
harmless”].)

We therefore proceed to analyze the prejudicial
nature of each instance of ineffective assistance.

C. Pruitt.

In our previous opinion, we held that trial
counsel’s failure to use Pruitt’s plea deal to impeach him constituted
ineffective assistance but that the ineffective assistance was not
prejudicial. (Griffin I, at pp. 22-26.)
We also noted that, on remand, this would be law of the case. (Griffin I,
at p. 43.)

The trial court therefore observed: “[T]he Court of Appeal . . . [has]
already made a call as to part of this, but they made it on the basis of a set
of facts that are in some ways different than what we have now. We’ve had some significant additional
information.” “[S]ome of the pieces that
the Court of Appeal relied on really aren’t now supported quite as strongly by
the evidence before me here.”

Nevertheless, it concluded that the failure to
introduce evidence of Pruitt’s plea deal was not prejudicial, because:

1. As
we had held, “ . . . Pruitt knew details showing that he
had seen the shooting. . . .”

2. Contrary
to our holding, “[t]he corroboration of Pruitt by Chapman has clearly been
undercut . . . . But the
corroboration by Newell I think stands.”

3. As
we had held, “the impeachment of Pruitt [was] relatively mild
. . . .”

4. As we had held, defendant’s alibi was
unconvincing: “I think it’s significant that
the defendant told the cops shortly afterwards . . . that he was at
7th Street.”

We agree with the trial court that significant
new facts appeared on remand. “When a
record is changed in any substantial respect the law of the case doctrine does
not apply. [Citation.]” (Nollan
v. California Coastal Com. (1986) 177 Cal.App.3d 719, 724-725, revd. on unrelated
grounds in Nollan v. California Coastal
Com. (1987) 483 U.S. 825 [107 S.Ct. 3141, 97 L.Ed.2d 677].) Unlike the trial court, however, we conclude
that the record as a whole, including these new facts, shows prejudice, for
three reasons. First, it became apparent
on remand that defense counsel also rendered ineffective assistance by failing to
use Pruitt’s preliminary hearing testimony to impeach him. Second, whether the failure to introduce
evidence of Pruitt’s plea deal was prejudicial was a close call, at best; our
conclusion in our previous opinion that it was not prejudicial has been
undermined by new information. Third, on
remand, it also became apparent that trial counsel rendered ineffective
assistance by failing to object to the prosecutor’s false argument that Pruitt
was not getting any benefit from testifying.

1. Additional failures to
impeach Pruitt.

Defense counsel’s failure to cross-examine Pruitt
regarding his plea deal was not the only flaw in his cross-examination. At the preliminary hearing, Pruitt’s
crossexamination took up approximately 48 transcript pages. Nevertheless, trial counsel’s
cross-examination of Pruitt took up only two transcript pages.

In principle, a short cross-examination can be as
effective as a long one, if not more so.
Here, however, trial counsel passed up the opportunity to bring out
multiple contradictions between Pruitt’s preliminary hearing testimony and his
testimony at trial:

1. At trial, Pruitt testified that he had
been a substance abuse counselor at the Chino prison for four and a half
years. At the preliminary hearing,
however, he testified that he held this job from sometime in 1999 until January
2002 — i.e., three years or less.href="#_ftn8"
name="_ftnref8" title="">^[8]

2. At trial, Pruitt testified that, at the
time of the shooting, he was living at the Econo Lodge Motel (also referred to
in the record as the Economy Inn). At
the preliminary hearing, however, he testified that he was living in an
abandoned house.

3. At trial, Pruitt testified that, when he
talked to Morris, he was sitting on the motel steps. At the preliminary hearing, however, he
testified that he was sitting on a planter.

4. At trial, Pruitt testified that the
victims were accompanied by one female (“Pumpkin”) and two males he did not
know. At the preliminary hearing,
however, he testified that they were accompanied by Pumpkin and just one male.

5. At trial, crime scene photographs showed
that victim Hutchinson was wearing a dark blue sweater with white stripes and
blue jeans. At the preliminary hearing,
however, Pruitt testified that Hutchinson was wearing a “sweat suit type
outfit” featuring “[l]oud colors” and a design “[s]omething like an African
flag, sort of like checkers and octagons . . . .”

6. At trial, Pruitt testified that
Hutchinson was carrying beer in a plastic bag.
At the preliminary hearing, however, he testified that Hutchinson was
carrying “a little brown bag, . . . like he bought something from the
store, some alcohol or something.”

7. At trial, Pruitt testified that, when he
looked at the parking lot, he saw the other male (or males) standing a couple
of feet off to the side. At the
preliminary hearing, however, he testified that he could not see the other
males (or male) at all.href="#_ftn9"
name="_ftnref9" title="">^[9]

8. At trial, Pruitt testified that, after
the shooting, he went upstairs to a motel room, looked out a window, and saw
the bodies. At the preliminary hearing,
however, he denied looking out a window while upstairs.

9. At trial, Pruitt testified that, after
the shooting, he did not look at the victims or at the shooting scene:

“Q.
. . . And did you go
walk up to [the victims] later on and see —

“A. No.

“Q. —
where they were shot?

“A. No.

“Q.
. . . And
. . . I’ve never shown you photographs of the dead bodies?

“A. No.

“Q. I
never showed you where the injuries are?

“A. No.

“Q. So the
only way you know is by what you saw that night?

“A. Yes.”

At the preliminary hearing, however, he testified
that, a few minutes after the shooting, he went back to the scene and saw the
victims “laying on the ground.”

In closing argument, the prosecutor stated, “What
[Pruitt] told you . . . was the same thing he told the judge during
the preliminary hearing . . . .
What Robert Pruitt saw that night has never changed.”

We recognize that “[p]eople sometimes honestly
forget things or make mistakes about what they remember.” (CALCRIM No. 226.) Moreover, the preliminary hearing was in
early 2004, whereas the trial was in late 2007.
Still, for a man who claimed that his memory was “crystal clear,” there
were an awful lot of discrepancies between Pruitt’s testimony on the two
different occasions. If he had been
cross-examined about them — and particularly if he had also been cross-examined
about his plea deal — it seems reasonably likely that a jury would have
concluded that his testimony was unreliable.
Certainly the prosecutor would not have been able to argue, as he did,
that Pruitt’s statements had “never changed.”

2. The reasoning in our
previous opinion.

a. Pruitt’s knowledge of
details.

In our previous opinion, we reasoned that Pruitt’s
claim that he saw the shooting was supported by his knowledge of physical
evidence at the shooting scene: (a) he
testified that Hutchinson was carrying beer in a plastic bag, and the police
found beer cans and a plastic bag at the scene; and (b) he testified that
defendant shot Hutchinson in the head, and Hutchinson was, in fact, shot in the
head. (Griffin I, at p. 24.)

This was the state of the record, however, only
because defense counsel failed to use Pruitt’s testimony at the preliminary
hearing to contradict him. As already
noted (see part III.C.1, ante), at
the preliminary hearing, Pruitt testified that Hutchinson was carrying “a
little brown bag” containing “some alcohol or something.” He also testified that, after the shooting,
he went back to the scene and saw the victims “laying on the ground.” Thus, he could have seen the details to which
he later testified without having actually seen the shooting. None of this came out at trial.

As a result of trial counsel’s failure to
cross-examine Pruitt on these points, the prosecutor was able to argue, in
closing, that Pruitt’s knowledge of details of the crime scene made him credible: “Mr. Pruitt, he talked about the man he
saw, the man with the bag with the beer in it.
Just like the pictures. He had
never seen the pictures. He didn’t know
how the investigation went. He just told
you what he saw. There can be no
question that he was there that night.”

Finally, at the href="http://www.mcmillanlaw.com/">preliminary hearing, Pruitt admitted
that, when the shooting occurred, he had been up for about three days straight,
using crack cocaine. At trial, trial
counsel attempted to cross-examine Pruitt on this point but did not do so
effectively. He merely asked:

“Q.
. . . And you’d used [cocaine] about 30 minutes before these
shootings?

“A. Yes.

“Q. When —
before that, when was the last time you used?

“A. Um,
about [an] hour[‑]and-a-half prior to that.

“Q. Okay. So you had been high a good long time?

“A. Yes.”

Thus, trial counsel actually gave the misleading
impression that Pruitt had been high for about two hours, not three days
straight. Even though Pruitt maintained
that cocaine did not affect his memory, the jury might well have questioned how
well he was able to function after three days without sleep.

In sum, then, if trial counsel had cross-examined
Pruitt regarding his preliminary hearing testimony, his incriminating trial testimony
would have been significantly less convincing.

b. Corroboration of
Pruitt by other witnesses.

In our previous opinion, we also reasoned that
Pruitt’s testimony was corroborated by Chapman and Newell. On remand, however, as we will discuss in
part III.D and III.E, post, defendant
showed that trial counsel was also ineffective in failing to impeach Chapman
and Newell. Thus, the fact that Pruitt,
Chapman, and Newell all corroborated each other actually tends to show that
trial counsel’s failure to impeach each of them was cumulatively prejudicial.

c. The strength of the
impeaching evidence.

In our previous opinion, we reasoned that
Pruitt’s plea deal was only “mildly” impeaching, because it required him to
testify truthfully; thus, a jury might have viewed it as actually enhancing his
credibility. (Griffin I, at p. 25.)

Effective defense counsel, however, would have
brought out precisely what “truthfully” meant (or did not mean) under the
circumstances. The judge in Pruitt’s
case had indicated that the benchmark of truthfulness would be Pruitt’s
testimony at defendant’s preliminary hearing:
“He nailed himself down in terms of his testimony in the
preliminary[ ]hearing transcript.
If he testifies at the trial that . . . ‘My memory’s got
cloudy, and I don’t really remember any kind of shooting,’ then he may find
himself back in the world of twenty-five years to life. [¶] If there’s some little tiny detail that maybe
he remembers differently now that several years ha[ve] passed, I’m forgiving in
that regard . . . .
Because witnesses are human. They’re
not computers. If it’s anything in
between, I’ll do my best to decide the in between.”

When the police first interviewed Pruitt, he did
not tell them that he saw the shooting.
It was not until the preliminary hearing, when he was facing charges
that carried a sentence of 25 years to life, that he first said that he saw
defendant shoot the victims. It was
conceivable that he lied at the preliminary hearing, because he was at least
hoping for some kind of favorable treatment.
In that event, the plea deal effectively required Pruitt to continue to
lie.

Finally, in closing argument, the prosecutor
stated that Pruitt had not gotten any kind of deal for his testimony: “Is there any reason to lie for Robert
Pruitt? Any whatsoever? He doesn’t get anything from this, from
testifying . . . . No
offers from my office. He’s sitting in a
jail cell right now, the same as he was before.
He didn’t get one thing from this . . . . [H]e didn’t get one thing from pointing the
finger at this man.” In our previous
opinion, we held that this was prosecutorial misconduct but that trial counsel
forfeited it by failing to object. (>Griffin I, at pp. 16-19.)

We did not consider whether the failure to object
constituted ineffective assistance. On
remand, however, defendant argued that it was indeed ineffective assistance,
and the trial court agreed. This
additional instance of ineffective assistance compounded and reinforced trial
counsel’s initial failure to impeach Pruitt.
Thus, it changes the prejudice analysis.

In sum, if trial counsel had introduced evidence
of Pruitt’s plea deal, and if, in addition, he had prevented the prosecutor
from arguing that Pruitt did not have a plea deal, Pruitt’s incriminating
testimony would have been significantly less convincing.

d. The weakness of
defendant’s alibi.

In our previous opinion, we also reasoned that
defendant’s alibi testimony was weak. (>Griffin I, at p. 25.) On remand, however, as we will discuss in part
III.F, post, defendant showed that
trial counsel was also ineffective in ways that undercut defendant’s
alibi. For example, among other things,
he failed to prepare defendant to testify, and he failed to refresh defendant’s
recollection with the relevant police reports.
Thus, these instances of ineffective assistance tended to reinforce the
prejudicial effect of trial counsel’s failure to impeach Pruitt.

3. Prosecutorial
misconduct.

As we held in our previous opinion, the
prosecutor committed misconduct by stating falsely, in closing argument, that
Pruitt did not have a plea deal.
Defendant’s trial counsel, however, forfeited the misconduct by failing
to object. (Griffin I, at pp. 15-19.)
On remand, it became apparent that this very failure to object
constituted yet another instance of ineffective assistance. These two instances, by mutually reinforcing
each other, contributed to cumulative prejudice.

D. Chapman.

At trial, Chapman testified that, prior to the
shooting, she “didn’t know [defendant] or know his name[.]”

She admitted knowing Pruitt. However, trial counsel did not ask her
anything about her relationship with Pruitt.
Chapman then testified:

“Q.
. . . Do you know [Pruitt]
to be around that area close in time to the incident?

“A. Not at
that moment, I didn’t.

“Q.
Okay. Did you learn later that he
was around there?

“A. When
we all came to court.”

At the preliminary hearing, however, both Pruitt
and Chapman had testified that they were boyfriend and girlfriend.

Chapman had also testified that, immediately
after the shooting, the “word on the street” was that “Big Wack” killed the
victims because they had robbed his “dope spot.”

Moreover, Chapman had testified that, in the days
after the shooting, Pruitt told her that he saw Big Wack shoot Morris. Pruitt also told her that “when [Morris] got
shot in the front of her head, [he saw] the brains blew out from the
back.” Pruitt said that he saw the
shooting from the porch of a vacant house.

In closing argument, the prosecutor stated: “Something that Sheila Chapman told you was
that she didn’t know Robert Pruitt was a witness in this case until they came
to the preliminary hearing. Yet, they
are consistent with each other. They
didn’t get together and conspire against the defendant.”

He also stated:
“There was no connection between these . . . individuals. Robert Pruitt and Sheila Chapman don’t even
know about each other until the first time they’re asked to come in and testify
about what they saw.”

As with Pruitt, trial counsel failed to cross-examine
Chapman regarding her preliminary hearing testimony. Effective cross-examination would have
brought out the fact that Chapman had a romantic relationship with Pruitt;
thus, she would have wanted to support his testimony in general and to help him
get a plea deal in particular. Effective
cross-examination also would have highlighted the conflict between her
preliminary hearing testimony that Pruitt claimed to have seen the shooting and
her trial testimony that she did not even know Pruitt had been in the area
until they “came to court.”

Chapman’s preliminary hearing testimony also
tended to impeach Pruitt. Supposedly, he
told Chapman that he had seen defendant shoot Morris; at trial, however, he
denied this. Also, he told her that,
when he saw the shooting, he was on the porch of a vacant house; at trial,
however, he testified that he was sitting on the motel steps.

The trial court found that trial counsel’s
deficient cross-examination of Chapman was not prejudicial: “[E]ven if her motive is to lie for [Pruitt],
how did she get that put together in time to do it? I’ve got no basis to believe that she visited
Pruitt in custody. There appears to be
no real way that she could understand the importance of telling a particular
story as early as the prelim and even in time for trial.”

However, just as the prosecutor argued that the
jury should infer from Pruitt and Chapman’s supposed lack of a connection that
they were both telling the truth, it was fairly inferable from their actual
connection that they had cooked up a story.
At a minimum, effective cross-examination would have prevented the
prosecutor from making this argument. It
also would have shown that Chapman had been untruthful in several respects.

Most important, an adequate cross-examination of >Chapman would have tended to impeach >Pruitt.
It would have shown that there was a widespread rumor that defendant was
the shooter. It would also have shown
that Pruitt had given a prior inconsistent description of the shooting.

Thus, if trial counsel had conducted an adequate
cross-examination of Chapman, the incriminating testimony of both Chapman and
Pruitt would have been significantly less convincing.

E. Newell.

At the preliminary hearing, there was evidence
that defendant told Newell that he was assaulting him, not for snitching on defendant (Big Wack), but for snitching on
defendant’s younger brother (Little Wack).
Defendant was joined in the assault by his mother (who was also Little
Wack’s mother) and by Little Wack’s son.

In support of his motion for new trial, defendant
introduced evidence that, in January 2004, Newell had repudiated his original
statement to the police. Newell told a
defense investigator that, when he was arrested, he was both drunk and high on
crack cocaine. Thus, when the police
interviewed him, “he was so stoned and wanted so badly to get out of custody so
badly to go score more dope” that he told them falsely that defendant had
confessed to the shooting.

Trial counsel never brought out the fact that
Newell may have been assaulted for snitching on Little Wack. Trial counsel also never used Newell’s 2004
statement to impeach Newell.

The trial court found that the failure to use the
2004 statement was ineffective assistance:
“[I]t’s hard to imagine . . . defense counsel having an
interview where a primary accuser recants and doesn’t want the jury to know
that.”

It concluded, however, that the ineffective
assistance was not prejudicial because, although Newell had recanted, a jury
would likely conclude that he had done so as a result of “getting the hell
kicked out of him . . . .”

This reasoning, however, fails to take into
account trial counsel’s ineffective assistance in failing to introduce evidence
that defendant actually assaulted Newell for snitching on Little Wack. Although defendant’s statement about why he
was beating Newell was hearsay, it would have been admissible under the
contemporaneous statement exception.
(Evid. Code, § 1241.)
Moreover, because the prosecution introduced evidence that defendant
said, “This is for snitching,” it would have been admissible under the
completeness rule (Evid. Code, § 356) to show what act of snitching
defendant was referring to.

At trial, Newell merely claimed not to remember
his March 2003 statement to the police.
His January 2004 statement to the defense investigator went beyond this;
in it, he affirmatively represented that his March 2003 statement had been
false. A jury might have concluded that
he recanted only because defendant had assaulted him; however, evidence that
defendant had assaulted him for a different reason weakened this inference.

Most significantly, however, this evidence would
have placed the assault itself in a different light. As we noted in our previous opinion (>Griffin I, at p. 24), the very
fact that defendant assaulted Newell “for snitching” appeared to be an adoptive
admission that Newell’s March 2003 statement to the police was true. Evidence that defendant actually assaulted
Newell for snitching on defendant’s little brother would have attenuated this
conclusion.

In our previous opinion, we also noted that: “Newell . . . was a member of
defendant’s gang and a good friend of defendant’s younger brother; thus, he was
unlikely to choose defendant as the person to inform on — especially falsely.” (Griffin I,
at p. 24.) The trial court
similarly noted Newell’s “lack of motive . . . to pick on
Mr. Griffin . . . .”
Evidence that Newell had also snitched on defendant’s brother would have
undercut this reasoning. Moreover,
according to a police report that defendant introduced to support his motion
for new trial, at one point, the police got Newell to go to defendant’s Seventh
Street crack house while wearing a wire.
Thus, he knew the police suspected defendant.

On the present record, Newell had ample reason to
inform falsely on defendant. He was
charged with drug possession; he was desperate to cut a deal to avoid a three
strikes sentence. More immediately, he
was desperate to get out of custody so he could use crack. The word on the street was that defendant had
committed the shooting. Newell also knew
that the police already suspected defendant of being the shooter. His shortest route to freedom was to claim
that defendant had confessed.

Thus, yet again, if trial counsel had adequately
cross-examined Newell, Newell’s incriminating testimony would have been
significantly less convincing.

F. Defendant and
Camarena’s Alibi Evidence.

The police interviewed both defendant and
Camarena in March 2003 and again in October 2003.

Defendant testified that he was “not sure”
whether he told the police about his alibi in March 2003. Likewise, in October 2003, he “may” or “may have
not” told them about his alibi.

Detective Joseph, who had conducted the March
2003 interview, testified that defendant did not mention being in Orange
County; to the contrary, defendant said he had been at his Seventh Street
address.href="#_ftn10" name="_ftnref10"
title="">^[10]

Camarena testified that, in March 2003, when the
police interviewed him, he told them that he and defendant had been in Orange
County on the night of the shooting.

Detective Joseph testified that, in March 2003,
Camarena did not tell him about being
in Orange County; “[h]e didn’t provide any information relevant to the
homicide[s] . . . .”

The prosecutor and trial counsel entered into the
following stipulation, which was read to the jury: “[W]ere Detective Steven Shumway called to
testify, he would testify that: [¶] . . . [¶] . . . When the defendant [sic] interviewed Alex Camarena on October the 12th of 2003,
. . . Camarena[] did not give any names, telephone numbers, or
addresses of any female he or the defendant may have been with on the night of
the murders.”href="#_ftn11" name="_ftnref11"
title="">^[11]

Thus, in closing, the prosecutor argued: “ . . . Alex tried to say
yesterday that he gave the detectives names and numbers. The detectives who interviewed him said, no,
he didn’t.”

He also argued:
“[I]n October, . . . [defendant] doesn’t have this alibi that
he’s talked about.”

In his motion for new trial, however, defendant
introduced a police report showing that, on October 9, 2003, he did tell police
that, on the night of the murders, he was in Orange County with Camarena. He also told them that they were there “to
hook up with Gracie’s friend.”

Defendant also introduced a police report showing
that, on October 12, 2003, Camarena told police that, on the night of the
murders, he was at “Berna’s house” in Orange County, along with defendant and
his girlfriend Gracie.

Thus, the stipulation was misleading, because it
suggested that Camarena never told the police about defendant’s alibi at
all. Even worse, the stipulation was actually
false, because Camarena did give the police the names “Gracie” and “Berna.”

Defendant testified that, before he testified at
trial, his trial counsel did not show him any police reports and did not
prepare him for cross-examination.

The trial court found that trial counsel rendered
ineffective assistance by failing to bring out the fact that, in October 2003,
both defendant and Camarena told police about the alibi to which they both
eventually testified at trial. However,
it also found that the ineffective assistance was not prejudicial because, in
March 2003, Camarena did not tell police they had been in Orange County, and
defendant affirmatively admitted being at Seventh Street. Thus, it was irrelevant whether they offered
the alibi for the first time in October 2003 or at trial; either way, it
appeared that they just “put a story together . . . .”

By failing to properly prepare defendant to
testify, however, trial counsel forced defendant to waffle about whether he >ever told the police about his
alibi. This hurt defendant’s credibility
overall. And by agreeing to the
stipulation, trial counsel made it sound as if Camarena never told the police about defendant’s alibi at >any time before trial. Moreover, the stipulation falsely suggested
that, even by October 2003, Camarena could not supply details such as names;
inferably, he cooked these up even later.
Arguably, we might not find that these instances of ineffective
assistance were prejudicial standing alone.
Nevertheless, they contributed to cumulative prejudice.

G. Cumulative Prejudice.

As mentioned earlier, the applicable test of
prejudice is whether “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been more
favorable to the defendant.
[Citation.] A reasonable
probability is a probability sufficient to undermine confidence in the outcome. [Citation.]”
(People v. Stanley, >supra, 39 Cal.4th at p. 954.)

There was no physical evidence linking defendant
to the shooting. Defendant testified to
an alibi. Thus, the case came down to a
credibility battle. Indeed, for the
prosecution, it began as an uphill battle, because Pruitt, Chapman, and Newell
were all both crackheads and felons.
Trial counsel’s ineffective assistance gave each of these witnesses
unwarranted credibility. At the same
time, it diminished the credibility of his own client as well as his client’s
alibi witness.

Meanwhile, the prosecutor’s actions reinforced
trial counsel’s ineffective assistance.
We already held, in our previous opinion, that he committed
prosecutorial misconduct by making false statements in closing argument. (Griffin I,
at pp. 16-17, 28.) It is now
apparent that he made additional statements that trial counsel could and should
have shown to be false. The very fact
that the prosecutor so often profited from trial counsel’s ineffective
assistance strongly indicates that the ineffective assistance was prejudicial.

Finally, even after the jury heard evidence and
argument that were skewed toward the prosecution, it deliberated for about 10
hours over three days. While this is not
sufficient to show prejudice, standing alone, it does show that the jury did not
consider the case to be open and shut. (See
People v. Brown (1985) 40 Cal.3d 512,
535.)

Under these circumstances, trial counsel’s
ineffective assistance thoroughly undermines our confidence in the jury’s
verdict (except in one respect, as discussed below). At most, we have a strong suspicion that
defendant is guilty. There is a
reasonable probability that, absent trial counsel’s unprofessional errors, a
jury conscientiously applying the “beyond a reasonable doubt” standard of proof
would have found defendant not guilty.

The sole exception is the guilty verdict on count
5: threatening a witness, with an
enhancement for personally inflicting great bodily injury. This count was based on the beating of
Newell. The credibility of Pruitt,
Chapman, and Camarena was irrelevant to this count. Also, while Newell’s credibility was
certainly relevant, this count did not depend on his March 2003 statement to
the police, which he gave to obtain leniency and later repudiated; rather, it
depended on his statement to the police in July 2003, immediately after the
beating. Defendant has not questioned
the credibility of this latter statement.
Finally, defendant admitted inflicting Newell’s injuries by hitting him
with a brick and twisting his leg; he simply denied that he did so because
Newell was a snitch.href="#_ftn12"
name="_ftnref12" title="">^[12] Defendant has not suggested any way in which
his trial counsel’s ineffective assistance contributed to this admission. Thus, defendant’s conviction on this count
may stand.

IV

DISPOSITION

The jury’s verdict on count 5 and the related
enhancement is affirmed. In all other
respects, the judgment is reversed. The
matter is remanded for resentencing. We
note, however, that the pending petition for writ of habeas corpus may
potentially moot any resentencing proceedings.

The clerk of this court is directed to send a
copy of this opinion to the State Bar immediately upon the issuance of the
remittitur. (Bus. & Prof. Code, §
6086.7, subd. (a)(2).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

Acting
P. J.

We
concur:





KING

J.



CODRINGTON

J.