People v. Velasquez CA2/4 ( 2015 )

Filed 3/13/15 P. v. Velasquez CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B248580
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA379116)
v.
OSCAR VELASQUEZ,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Jose I. Sandoval and Hillari G. Merritt, Judges. Affirmed.
Helen S. Irza, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Steven E. Mercer and Robert C. Schneider, Deputy Attorneys General,
for Plaintiff and Respondent.
___________________________________________
INTRODUCTION
Oscar Velasquez appeals from a judgment and sentence, following his
convictions on two counts of attempted murder of a police officer, two counts of
assault with a firearm on a police officer, and two counts of being a felon in
possession of a firearm. He contends the trial court abused its discretion when it
denied his request to appoint his previously retained private counsel to represent
him at public expenses, in violation of Harris v. Superior Court of Alameda
County (1977) 19 Cal.3d 786 (Harris). He further complains that he received
ineffective assistance of counsel when his trial counsel failed to secure a witness
for trial and failed to object to a prejudicial comment made by a prosecution
witness. Finally, he contends there was insufficient evidence to support his
convictions for being a felon in possession of a firearm, or to support the gang
enhancement allegations. Appellant also requests that this court independently
review the sealed transcript of the in camera proceeding on his motion pursuant to
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). The People have no
objection to independent review of the Pitchess hearing. For the following
reasons, we find no prejudicial error, and affirm.
PROCEDURAL HISTORY
A Los Angeles County jury convicted appellant of two counts of attempted
murder of a peace officer (Pen. Code, §§ 187, subd. (a), 664, subds. (e) & (f);
1
counts 1 & 2), two counts of assault with a firearm upon a peace officer (§ 245,
subd. (d)(1) & (2); counts 3 & 4), and two counts of being a felon in possession of
a firearm, to wit, a shotgun and .45-caliber pistol, respectively (§ 12021,
subd. (a)(1)). The jury found the attempted murders were willful, deliberate and
1
All further statutory citations are to the Penal Code.
2
premeditated. It also found that appellant committed the offenses for the benefit
of, at the direction of, and in association with a criminal street gang, within the
meaning of section 186.22, subdivision (b)(1)(C). Finally, as to count 2, the jury
found that a principal personally used a handgun (§§ 12022.53, subds. (b) & (e)(1),
2
12022.5, subds. (a) & (d)).
Appellant was sentenced to state prison for 74 years and eight months. He
timely filed a notice of appeal.
FACTUAL BACKGROUND
A. Trial Proceedings
1. The Prosecution’s Case
Ramona Gardens is a housing project in Los Angeles County dominated by
the Big Hazard criminal street gang. Due to gang activity in the project being “out
of control,” Ramona Gardens was covered by a gang injunction and assigned its
own police gang unit. On the evening of January 24, 2009, at around 11:45 p.m.,
Los Angeles Police Department (LAPD) Officer Jose Vazquez, a member of the
Ramona Gardens gang unit, was on foot patrol with his partner, Officer Matthew
Ensley. During the patrol, Vazquez saw two Hispanic men standing near an
apartment unit. Vazquez recognized one of the men as Gilbert Garcia, a member
of the Big Hazard gang. The other man -- later identified as appellant -- was
wearing a jacket. Vazquez knew Garcia had been served with a gang injunction,
2
The jury found not true the allegations that a principal personally and
intentionally discharged and used a shotgun as alleged in count 1, possibly due to
conflicting evidence whether the shotgun was operable and testimony suggesting
appellant actually fired a handgun, rather than a shotgun (§§ 12022.53, subds. (b),
(c) & (e)(1)).
Appellant also was charged with three counts of second degree robbery
against three civilians on December 27, 2008, but the jury could not reach a
unanimous verdict, and the court declared a mistrial as to those counts.
3
and that Garcia was not supposed to be associating with other gang members or be
inside Ramona Gardens. Vazquez walked toward the two men, intending to detain
Garcia to investigate a possible injunction violation.
As Vazquez approached, Garcia and appellant ran away, around a nearby
building. Vazquez did not see either man with a weapon. Based on their
experience, the officers suspected that the two suspects would use a staircase
located nearby that led into a park. The two officers headed toward the staircase,
going the other way around the building. As the officers approached a building
near the staircase, Vazquez went to one corner of the building and took cover while
Ensley went to the opposite corner. Vazquez saw the two suspects arrive at the
scene. Appellant produced a shotgun and fired one shot at Ensley. Ensley
returned fire, shooting twice. Vazquez unholstered his firearm, but did not fire it.
Appellant ran away, but Garcia remained and was detained by Ensley. Garcia had
no weapon on his person.
While Garcia was taken into custody, Vazquez chased after appellant.
Vazquez saw appellant throw the shotgun next to vehicles parked in front of a
building. He also saw appellant try to get into an apartment unit -- later identified
as appellant’s girlfriend’s apartment -- knocking on the door and jiggling the door
knob. Vazquez approached and ordered appellant to put his hands up. Appellant
responded by turning around and pulling a handgun from his waistband. Vasquez
testified that it was possible appellant fired at him. Vazquez fired his weapon four
times and appellant fell to the ground, dropping the handgun. Three women came
out of the apartment, and started yelling at Vazquez not to shoot or kill appellant.
Appellant got up and yelled, “Kill me. Finish me off. Shoot me” but Vazquez did
not fire again. Appellant then ran away, with Vazquez in pursuit. As appellant
ran, he took off his jacket and dropped it. Shortly thereafter, Vazquez lost sight of
4
appellant. Over the police broadcast, he heard that Officer Jaime Anchondo had
appellant in custody. Vazquez arrived at the location and saw appellant with
Anchondo. Vazquez testified this was the first time he had ever fired his weapon
on the job in 14 years of service.
Officer Ensley testified that when appellant and Garcia came around the
building near the staircase to the park, he recognized them. Ensley had had prior
interactions with both men before, and knew them to be Big Hazard gang
members. Upon seeing Ensley, appellant raised a sawed-off shotgun -- which he
had held near waist level -- and fired the gun at Ensley. Ensley was not hit. He
retrieved his gun and returned fire, but missed appellant. Both appellant and
Garcia then turned around and began running. Ensley started screaming, ordering
the men to stop. Garcia complied, but appellant continued running. Ensley took
Garcia into custody while Vazquez pursued appellant. This incident was the only
time Ensley had ever fired his weapon on the job.
Garcia testified as a prosecution witness in exchange for an agreement that
he would be relocated. Garcia stated that he was present with appellant when they
were approached by Officers Ensley and Vazquez that evening. When the two
men saw the officers, they began running toward the staircase. When they
subsequently encountered Ensley, Garcia heard two gunshots from Ensley and two
shots from another gun. The shots all sounded like they were fired from pistols.
Garcia denied possessing any firearms that night, and denied touching the shotgun.
Officer Anchondo responded to a broadcast that a police unit had been shot
at and needed help at Ramona Gardens. As Anchondo approached Ramona
Gardens, he saw a male running south, followed by a police officer. Anchondo
decided to cut off the escape path of the running suspect, later identified as
appellant. Anchondo drove southbound, parked his patrol vehicle, and exited.
5
Almost immediately, he came face-to-face with appellant. Anchondo ordered him
to “get on the ground.” When appellant did not comply, Anchondo struck
appellant in the chest with a baton. Appellant went to the ground, and Anchondo
handcuffed him. Officer Vazquez arrived on the scene shortly thereafter.
Sergeant Raymond Marquez, the officer in charge of the Ramona Gardens
gang unit, was the first supervisor on the scene. Marquez separated Ensley and
Vazquez when he arrived, so they could be questioned separately about the
incident. Marquez also testified that a crowd formed around the scene. The crowd
was unruly and some members threw bottles at the officers.
Officer Pavel Gomez, a member of the Ramona Gardens gang unit, also
responded. When he arrived at the scene, he saw appellant being taken to an
ambulance. Gomez heard appellant yelling, “Hazard,” “I’ll kill you all,” and “I
hope you all die.” To Gomez, appellant’s statements were meant to threaten the
police and to let the community know that the Big Hazard gang was in control of
the area.
When Los Angeles Fire Department Emergency Medical Services (EMS)
Captain Ken Krupnik responded, he observed his paramedics treating appellant.
Appellant was trying to provoke the crowd, which consisted of at least 100
individuals. He was saying things like “kill the pigs” or “shoot the police,” and
pumping his chest “almost like Tarzan.” Krupnik was concerned for his men’s
safety, because he had been informed recently that there was a “hit” out on the
LAPD by the Big Hazard gang.
LAPD criminalist Amy Antaya recovered a pistol (a .45-caliber Rock Island
Armory handgun) and a shotgun in the parking lot where Vazquez shot at
appellant. The shotgun’s wooden stock had been cut, shortening its overall length.
Antaya also recovered several discharged cartridge casings for a .45-caliber
6
handgun. She determined that a .45-caliber casing found near where Ensley had
shot appellant was fired from the same Rock Island Armory pistol recovered in the
parking lot. No expended shotgun shells were found. Antaya testified that she had
not always been able to recover expended cartridge casings from shootings.
LAPD criminalist Daniel Rubin, a firearms expert, testified that the shotgun
was a “pump action” shotgun. With a pump action shotgun, a shooter would pull
on a pump mechanism -- the forend -- to eject any fired shot shell in the firing
chamber and push the forend to load a new shot shell into the chamber. Rubin
noticed the recovered shotgun had a malfunction: a stud on the “elevator”
mechanism that lifts a shot shell up from the magazine to the firing chamber was
out of position, which would prevent a shooter from being able to pull the forend
completely backward and load a new shot shell into the chamber. Although the
elevator was not functioning properly, the shotgun could still be fired, and it was
possible to “hand fe[ed]” a shot shell into the shotgun’s firing chamber. Rubin
opined that tossing the shotgun on the ground might have dislodged the elevator
stud.
The shotgun had five live shot shells in the gun’s magazine when recovered.
There was no shell in the gun’s chamber. The shells were loaded with No. 7 steel
birdshot shot shells, each the size of the head of a pin. Birdshot dissipates quickly
and disappears into the environment. It was over two hours after the shooting
before Rubin arrived on the scene and began processing it.
As to the .45-caliber pistol, it was loaded with nine rounds of ammunition,
including one in the firing chamber. The pistol’s “hammer” was in the “cocked”
position and the safety was off. The pistol had an “extended” 10-round magazine
which was damaged. Although the pistol was operational, the magazine might
cause rounds to jam. One of the rounds found in the discarded pistol was loose in
7
the magazine well. That was consistent with the pistol being fired once and the
magazine misfeeding the next round so that it did not end up in the firing chamber.
According to Rubin, expended rounds do not always follow a predictable pattern as
they are ejected from the pistol.
Criminalist Kevin Hollomon testified as an expert in gun shot residue (GSR)
analysis. When someone uses a firearm, GSR is left behind. GSR is typically a
combination of antimony, barium, and lead. However, GSR may fall off, be wiped
off or be cleaned off. Thus, receiving medical attention may affect the ability to
recover GSR. GSR swabs were not collected from appellant until 4:10 a.m., hours
after the shooting incident. A GSR swab taken from appellant’s hand showed the
presence of antimony and lead, but not barium. Holloway was unaware of any
activity other than firing a gun that would leave the combination of antimony and
lead found on appellant. The presence of GSR on a person’s hands, however, did
not conclusively establish that the person had fired a gun.
LAPD Officer Matthew Meneses testified as an expert on the Big Hazard
gang. In 2009, the gang had roughly 300 self-admitted members. The gang uses
the letter H and the biohazard symbol as gang signs. Its primary activities included
murder, attempted murder, attempted murder of police officers, robberies, narcotic
sales and intimidation of witnesses. Meneses testified as to two predicate crimes,
attempted murder and attempted murder of a police officer. Meneses also testified
that Ramona Gardens is a difficult place to patrol because it is inaccessible to cars
and “very heavily fortified.” Rival gangs will not enter it. In addition, there has
always been a very high level of tension between the police and the gang in
Ramona Gardens. In 2006, there were two attempted ambushes of police officers
in the area.
8
Meneses testified that Garcia was a self-admitted gang member. In his
opinion, appellant was a Big Hazard gang member based on his self-admission to
Officer Ensley and his gang tattoos. In response to a hypothetical paralleling the
facts of this case, it was Meneses’s opinion that the crime was committed in
association with and for the furtherance and benefit of the gang. It was a violent
crime committed by one gang member in association with another gang member
on Big Hazard’s home turf. It was intended to create an atmosphere of fear and
intimidation in the community -- preventing civilians from calling the police -- and
to raise the shooter’s rank and stature within the gang. By yelling “Hazard,” “I’ll
kill you all,” “kill the police,” the shooter would be promoting the gang, even
though he knew he could be facing a lengthy prison time for shooting at the
officers. From his conduct, the community would know that the gang members
were willing to pay the price for shooting the police and could infer that those
same gang members would be willing to shoot civilians with impunity.
2. The Defense Case
No DNA found on the firearms was matched to appellant’s DNA profile.
Criminalist Susan Bach, however, admitted that a number of studies have shown
that between 51 and 70 percent of the time, people do not leave any measurable
DNA when touching an object. Fingerprint evidence revealed a print from Garcia
on the shotgun, but not appellant.
Marc Scott Taylor, a forensic scientist, testified that the evidence was
insufficient to find GSR conclusively, because of the absence of barium, the small
amount of material found, and the fact that appellant was shot, which might
explain the presence of the antimony and lead.
9
Bruce Krell, the defense expert on firearms, opined that the shotgun was
inoperable and that the pump action loading/unloading mechanism could not be
manipulated because of the dislodged elevator stud.
3. Rebuttal
Rubin testified that he contacted the manufacturer of the shotgun, and spoke
with Joseph Bartozzi, senior vice-president and director of technical services.
Bartozzi informed Rubin that the problem with the shotgun suffering dislodged
elevator studs does occur. Bartozzi himself had personal experience with the
phenomenon while conducting “drop tests” -- safety tests that ensure a shotgun
would not fire if dropped. Rubin also disagreed with Krell’s opinion that the pump
action of the shotgun could not be manipulated because of the dislodged elevator
stud.
B. Proceedings on Motion for a New Trial
The jury returned its verdicts on February 4, 2013. On April 17, trial
counsel filed a motion for a new trial based on newly discovered evidence. The
motion made an offer of proof that Guadulupe Perez would testify that she
personally observed Vazquez shooting appellant and that appellant was unarmed
and had his hands up when he was shot. Perez had been served with a subpoena,
but had refused to come to court to give testimony. According to counsel, Perez’s
failure to comply with the subpoena was based on her fear that she would be
arrested by the police for giving testimony. Perez told counsel that a week before
the trial, she received a call from someone claiming to be from the police. That
person told Perez that she would be arrested for perjury if she appeared to give
testimony.
At the hearing on the new trial motion, Perez testified as follows. She lived
on the second floor of a building that was across from the building where appellant
10
was shot, separated by a parking lot filled with cars on the night of the shooting.
3
She estimated the distance between the buildings to be 20 feet.
That night, Perez was looking out of her window when she saw the police
chasing appellant. Perez stated she did not know if “they knew who he was, but
they were chasing him.” Perez knew appellant because he was Ramona (Mona)
Garcia’s boyfriend, and Perez was friends with Mona’s parents. Mona had spoken
with Perez about the shooting, and had brought Perez to court to testify.
Perez testified that appellant stopped in front of Mona’s apartment. Asked
what she saw next, Perez stated: “Well, I saw when they came up to him and then
they asked him to put his hands up. And then the police had asked him to put his
hands on the door, but he didn’t have a gun.” When appellant raised his hands, the
police officer shot him in the shoulder. Perez did not see anything in appellant’s
hands. The police officer approached and told appellant to get up. Appellant got
up and ran, and the police officer ran after him and shot at him again. On cross-
examination, Perez stated that she did not recall hearing shots -- referring to the
incident between appellant and Ensley -- just before Vazquez shot appellant.
About two days after the incident, a man in a suit came and spoke with
Perez. Perez told him what she had seen, and the man made written notes.
Subsequently, an investigator for the defense asked Perez to give testimony. He
gave her a document to appear in court. Perez became ill with cancer and could
not appear in court. She also did not appear because a man -- on two occasions --
told her that if she did not come to court, he would issue an arrest warrant for her.
In addition, Perez was afraid to go to court because a woman told her that she had
to come to court or she would be arrested. “And I said no.” On cross-examination,
3
The parties appear to agree that the distance across the parking lot could not
have been as little as 20 feet.
11
Perez was asked about the man who gave her the subpoena to come to court. She
responded, “I don’t remember who he was. I don’t -- I don’t want to talk about
that anymore.”
Perez denied ever being told if she came to court she would be arrested for
perjury. She denied telling defense counsel that she was afraid of being threatened
with arrest for perjury. Perez stated that the cancer treatments made her tired, but
“my mind is fine. I forget a little, but it’s fine.” She stated she would forget dates,
but not what she said in a conversation.
Perez said that she came to court because she wanted to help appellant and
because she thought what the police did was unfair. In addition, she was no longer
afraid because she saw that the man’s threat to arrest her was not genuine.
The trial court denied the motion. It found that “Perez observed [a] snapshot
in time of an entire length of events” and that the evidence that the police
threatened her was “weak and unsubstantiated.”
DISCUSSION
A. Denial of Motion to Appoint Harris Counsel
Appellant first contends the trial court abused its discretion in appointing the
alternate public defender to represent him instead of the privately retained attorney
-- H. Russell Halpern -- who had been representing him in the previous identical
action for the past nine months. For the reasons set forth below, we disagree.
1. Relevant Factual Background
On March 9, 2010, after the preliminary hearing in the prior underlying
action, appellant’s family retained Halpern to represent him. According to
Halpern, appellant’s mother had hired another private attorney for the preliminary
hearing, who had charged more than Halpern did. Halpern stated that he had
announced ready for trial in September or October 2010, at which time the
12
prosecution turned over the original videotape of a robbery that appellant was
charged with committing, necessitating a continuance, as Halpern believed the
videotape established that appellant did not commit the robbery. Thereafter, the
prosecutor dismissed the case and refiled it on December 15, 2010, at which point
the family ran out of funds to pay Halpern.
On December 21, 2010, appellant moved to have Halpern appointed in the
new action. At the hearing, Halpern stated that he had made at least 13 court
appearances, spoken with numerous witnesses, and “developed relationships with a
woman who is supplying us with Pitchess witnesses. [¶] . . . We have a
community worker who has actively been working with me in obtaining names and
addresses of people who have had problems with these two officers in the past, and
we have a whole community lined up ready to testify . . . .” Halpern also stated
that he was familiar with Ramona Gardens from being there on other matters, had
obtained the services of a video expert, had spoken with experts concerning GSR,
and had reviewed the “voluminous police reports.” According to Halpern, the case
was complicated because of the Pitchess motions and numerous lay and expert
witnesses. Halpern never mentioned Perez or her potentially exculpatory
testimony. Nor did Halpern state that he was ready for trial in the new action.
The trial court (Judge Hillari G. Merritt) denied the motion. The court found
that while Halpern had done considerable work with experts on GSR, fingerprints,
and DNA, “those issues have resolved themselves; the results are in.” The court
noted that it was a new filing and the matter was now at the arraignment stage. It
found that “it would not be particularly time consuming or onerous for either the
public defender or alternate public defender . . . to pick up this case.” The court
stated, “I have heard nothing that indicates that this is such a complicated case that
a government attorney could not pick it up here at arraignment and be ready in a
13
timely fashion.” Subsequently, the alternate public defender was appointed to
represent appellant. The alternate public defender entered a not guilty plea on
appellant’s behalf, and asked that the matter be set for a preliminary hearing. The
alternate public defender also informed the court that Halpern would file a Harris
writ, but voiced no support for the writ.
On December 30, 2010, a Superior Court panel denied the writ, finding that
nothing in the record suggested that appellant would be disadvantaged in his
representation by the alternate public defender. “[T]o the extent that the
petitioner’s preferred counsel believes it has special knowledge of the case
obtained in the course of its previous investigation, nothing would prevent the
Alternate Public Defender from obtaining that information from the petitioner’s
preferred counsel in a request for the petitioner’s case file.” On January 27, 2011,
this court denied a similar petition for a writ of mandate.
2. Analysis
“A criminal defendant’s right to counsel is guaranteed by both the federal
Constitution’s Sixth Amendment (applicable to the states through the Fourteenth
Amendment), and by the California Constitution article I, section 15.” (People v.
Sapp (2003) 31 Cal.4th 240, 256.) “In Los Angeles County, pursuant to section
987.2, indigent criminal defendants desiring but unable to afford counsel are
represented by the public defender. If the public defender is unable to represent a
defendant because of a conflict of interest, the alternate defense counsel is assigned
to represent the defendant. If the alternate defense counsel is unable to represent a
defendant because of a conflict of interest, private counsel is assigned.”
(Alexander v. Superior Court (1994) 22 Cal.App.4th 901, 910.) “The court may
depart from this specific order of appointing counsel for an indigent defendant,
however, ‘[i]n the interest of justice.’ (§ 987.2, subd. (d).) In such a case, the
14
court must make ‘a finding of good cause and stat[e] the reasons therefor on the
record.’ (Ibid.)” (People v. Cole (2004) 33 Cal.4th 1158, 1184 (Cole).) “On
appeal, a trial court’s orders concerning the appointment of counsel for an indigent
defendant are reviewed for abuse of discretion.” (Ibid.; accord Harris, supra,
19 Cal.3d at pp. 795-796; see also Wheat v. United States (1988) 486 U.S. 153, 159
[“defendant may not insist on representation by an attorney he cannot afford”].)
Relying on Harris, appellant contends the trial court abused its discretion in
appointing the alternate public defender instead of his prior counsel. Harris,
however, involved very “specific and unusual facts.” (People v. Lancaster (2007)
41 Cal.4th 50, 70, fn. 5.) In Harris, defendants, members of the so-called
Symbionese Liberation Army (SLA), were charged with aggravated kidnapping,
robbery, assault with a deadly weapon and false imprisonment. (Harris, supra,
19 Cal.3d at p. 789.) After the public defender declared a conflict, defendants
sought appointment of two private attorneys who had previously represented them
in related criminal proceedings concerning their alleged activities as members of
the SLA. These attorneys shared certain “political and social perceptions” with
defendants, and defendants had come to regard them as “true champions of their
cause.” (Id. at p. 793.) The motion was denied, and the court appointed two
alternate private attorneys, who thereafter joined in defendants’ request that prior
counsel be appointed. The trial court denied the request. (Id. at pp. 789-790, 793.)
The Supreme Court concluded that the trial court abused its discretion in not
appointing prior counsel. Specifically, the trial court failed to consider objective
factors, such as the fact that the prior representation “not only established a close
working relationship between [defendants] and [the subject attorneys] but also
served to provide those attorneys with an extensive background in various factual
15
and legal matters which may well become relevant in the instant proceeding.” (Id.
at p. 798.)
In determining whether the trial court abused its discretion in denying
appellant’s motion to appoint Halpern, we find the Supreme Court’s later holding
in Cole instructive. There, the defendant’s preferred attorney had represented him
for 11 months and had personally interviewed numerous witnesses in
Massachusetts and New Hampshire. It was further asserted that the attorney had
developed a rapport with the witnesses, who would otherwise be reluctant to travel
to California to testify. (Cole, supra, 33 Cal.4th at pp. 1179-1180.) Nevertheless,
the Supreme Court found no abuse of discretion in the trial court’s denial of the
defendant’s motion to appoint the preferred attorney. Specifically, the court noted
that (1) the alternate public defender “did not actively seek to withdraw as counsel
or support [the requested attorney’s] appointment,” (2) nothing in the record
demonstrated “the relationship between defendant and [requested counsel] ever
approached the depth of the relationship between the petitioners and their
requested counsel in Harris,” and (3) there was “no showing that defendant
disagreed with the [alternate public defender] as to trial tactics or any other aspect
of his defense in such a way that he could not cooperate with the [alternate public
defender].” (Id. at p. 1187.) Similarly, here, the alternate public defender did not
seek to withdraw. Nor did the alternate public defender support the appointment of
Halpern. Moreover, while appellant preferred Halpern, nothing in the record
suggests that the relationship between Halpern and appellant had reached the depth
of that between the defendants and their counsel in Harris, or that appellant would
be unable to work with the alternate public defender.
Appellant contends that Halpern was ready for trial, and the trial court’s
refusal to appoint him imposed undue delay on appellant’s right to a speedy trial
16
and undue costs on the state to pay for work that had already been performed. We
disagree. As an initial matter, we note that a change in counsel necessarily results
in some delay, but appellant does not suggest that under Harris, this fact entitles a
defendant who can no longer afford retained counsel the automatic right to have
such counsel appointed at public expense.
In addition, as the trial court found, the instant matter was not a particularly
complicated case requiring substantial consumption of resources. Much of the
case depended on forensic evidence. The court found -- and appellant does not
dispute -- that the results of forensic tests were available for any defense counsel to
use. Moreover, although Halpern had retained a videotape expert to testify about
the videorecording of the charged robbery offenses, he had not retained a GSR or
firearm expert for trial. It was trial counsel who retained experts Taylor and Krell
to provide lengthy and detailed trial testimony about GSR and the operability of
the firearms, resulting in the jury’s finding that appellant had not discharged the
shotgun at Officer Ensley.
Similarly, the absence of any reference to Perez or her potentially
exculpatory testimony by Halpern suggests that Halpern would not have presented
a different defense than trial counsel did. Nothing suggests that Perez would have
been willing to come to court had Halpern been appointed rather than the alternate
public defender. Perez claimed she was afraid to come to court because she was
twice informed that she would be arrested if she failed to appear. Halpern’s
appointment would not have changed that reason. In short, substantial evidence
supports the trial court’s finding that the instant matter was not a complicated case,
and that the alternate public defender would be able to competently and adequately
present a defense in a timely matter. Accordingly, the trial court did not abuse its
discretion in appointing the alternate public defender. (See People v. Horton
17
(1995) 11 Cal.4th 1068, 1100 [no abuse of discretion where it was not
demonstrated that preferred attorney “had achieved a familiarity with the issues or
evidence that newly appointed counsel would be unable to achieve without
considerable duplication of time and effort”].) Because we conclude there was no
abuse of discretion, we do not consider whether defendant was prejudiced by
Halpern’s absence from the case. (People v. Alexander (2010) 49 Cal.4th 846,
4
873.)
B. Ineffective Assistance of Counsel
Appellant contends he was denied effective assistance of counsel because
(1) trial counsel failed to take reasonable steps to secure the exculpatory testimony
of Perez for trial, and (2) trial counsel failed to object to an unduly prejudicial
remark made by a prosecution witness. In order to prevail on a claim of ineffective
assistance of counsel, appellant must show (1) that counsel’s representation fell
below an objective standard of reasonableness under prevailing professional
norms, and (2) that there is a reasonable probability that but for counsel’s
unprofessional errors, the result would have been more favorable to the defendant.
(Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Gray (2005)
37 Cal.4th 168, 206-207; People v. Kelly (1992) 1 Cal.4th 495, 519-520.) As the
United States Supreme Court has noted: “Judicial scrutiny of counsel’s
performance must be highly deferential. It is all too tempting for a defendant to
second-guess counsel’s assistance after conviction or adverse sentence, and it is all
too easy for a court, examining counsel’s defense after it has proved unsuccessful,
to conclude that a particular act or omission of counsel was unreasonable.”
(Strickland v. Washington, supra, 466 U.S. at p. 689.) Accordingly, when
4
We note that the delay occasioned by the later substitution of new alternate
defense counsel could not have been anticipated by the trial court.
18
“defense counsel’s reasons for conducting the defense case in a particular way are
not readily apparent from the record, we will not assume inadequacy of
representation unless there could have been ‘“no conceivable tactical purpose’” for
counsel’s actions.” (People v. Earp (1999) 20 Cal.4th 826, 896.)
1. Failure to Secure Perez for Trial
As noted, appellant’s trial counsel secured a mistrial on the robbery charges
and a jury finding that appellant had not discharged the shotgun. Appellant
contends, however, that counsel’s failure to secure Perez’s presence at trial
constituted ineffective assistance. Appellant acknowledges that counsel placed
Perez on the defense witness list, arranged for her to be served with multiple
subpoenas, and sought a continuance of the trial in order to secure Perez as a
“necessary witness.” Nevertheless, appellant faults trial counsel for failing to
request a body attachment to compel her appearance, failing to request the court’s
assistance in setting up a conditional examination pursuant to section 1340, or
failing to seek a continuance of the trial under section 1050 until Perez completed
5
her chemotherapy. We conclude the record does not show that trial counsel had
no conceivable purpose for failing to take additional steps to secure Perez’s
testimony for trial.
5
Section 1340 provides in relevant part that “[i]f the court determines that the
witness to be examined is so sick or infirm as to be unable to participate in the
examination in person, the court may allow the examination to be conducted by a
contemporaneous, two-way video conference system, in which the parties and the
witness can see and hear each other via electronic communication.” (§ 1340,
subd. (b).)
Section 1050 provides that counsel may request a continuance by filing a
written notice together with affidavits or declarations detailing the specific facts
showing that a continuance is necessary.
19
In the motion for a new trial, appellant’s counsel explained that, “[a]lthough
multiple subpoenas were served on Ms. Perez, her refusal to come to court was not
followed by a request that a body attachment be issued by the court and that she be
forcibly brought to court. This action was at the time contrary to the strategy of the
Defense. Perez was an elderly woman who had relayed suffering from Cancer and
effects of Chemo Therapy. A strategic decision was made [that] to continue to
request Perez to come to court was best for the case, as opposed to causing her to
be apprehended and brought to the court in her condition.” The motion also
asserted that Perez had refused to come because she had been intimidated by the
police not to appear and give testimony.
At the hearing on the motion for a new trial, defense counsel stated that he
had sought a continuance before trial and had informed the court of the possibility
of a conditional examination, but Perez had continued to refuse to appear in court.
Counsel explained that the defense decided not to request a body attachment
because “we felt the quality of her testimony would have been degraded” and that
she would not agree to give testimony, especially since Perez would know that it
was the defense that obtained the body attachment order.
On this record, we conclude that trial counsel acted reasonably in not taking
additional steps beyond issuing multiple subpoenas to secure Perez’s testimony for
trial. In light of Perez’s continual and consistent refusal to testify, it was
reasonable for defense counsel to attempt to accommodate Perez, rather than
alienate her by obtaining a body attachment order. He made a tactical assessment
that attempting to secure her presence by force might backfire, making her hostile
to the defense and “degrad[ing]” her testimony. Indeed, her refusal on cross-
examination to answer further questions about the man who served her with a
subpoena showed that Perez could be an uncooperative witness. Additionally, no
20
evidence suggests that Perez’s health condition was so compromised that a
conditional examination was necessary. In short, we find that appellant has not
6
shown that defense counsel’s representation was inadequate.
2. Failure to Object to Prosecution Witness’s Testimony
Appellant further contends that trial counsel should have objected to EMS
Captain Krupnik’s comment that he was aware that the gang had put out a “hit” on
the police. Defense counsel, however, may not have wished to highlight this
solitary remark. In any event, there was no prejudice. The prosecution’s gang
expert testified in greater details about the same issue. He testified that the gang’s
main activities included attempted murders of police officers, that there was a very
high level of tension between the police and the gang, and that there had been two
attempted ambushes of police officers in Ramona Gardens in 2006. Thus, there
was no reasonable possibility that objecting to Krupnik’s testimony would have
resulted in a more favorable outcome.
C. Sufficiency of the Evidence to Support Gang Allegations
Appellant next contends that there was insufficient evidence to support the
gang enhancement allegations. “In determining whether the evidence is sufficient
6
We note that defense counsel’s determination whether to take extraordinary
measures to secure a witness’s testimony would be based in part on the
significance of the testimony. Although Perez was the only purported percipient
civilian witness aside from defendant (who did not testify), her testimony was
problematic. She was not unbiased, as she was a friend of the family of appellant’s
girlfriend, who brought her to court. Although defense counsel stated Perez had
told him she was threatened with prosecution for perjury should she testify, she
denied such threats. Her own explanation for her failure to appear -- that she was
afraid she would be arrested if she did not come to court -- strained credulity. She
claimed to have seen the incident across a parking lot full of cars near midnight,
and then estimated the distance at 20 feet. Finally, she claimed to have heard what
Vazquez said to appellant, but could not remember hearing gunshots indisputably
fired moments before.
21
to support a conviction or an enhancement, ‘the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’ [Citations.] Under this standard, ‘an appellate court in a
criminal case . . . does not ask itself whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt.’ [Citation.] Rather, the reviewing
court ‘must review the whole record in the light most favorable to the judgment
below to determine whether it discloses substantial evidence -- that is, evidence
which is reasonable, credible, and of solid value -- such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] This
standard applies to a claim of insufficiency of the evidence to support a gang
enhancement. [Citation.]” (People v. Vy (2004) 122 Cal.App.4th 1209, 1224,
italics omitted.) Expert testimony may be used to prove the elements of a gang
enhancement allegation. (See, e.g., People v. Williams (2009) 170 Cal.App.4th
587, 621; People v. Martinez (2008) 158 Cal.App.4th 1324, 1332-1333.)
“The section 186.22(b)(1) enhancement requires the jury to find that the
crime was committed for the benefit of a criminal street gang and with the specific
intent to promote the criminal street gang.” (People v. Ramon (2009) 175
Cal.App.4th 843, 849.) We conclude that substantial evidence supports the jury’s
findings that the crimes were committed for the benefit of the Big Hazard gang,
and that appellant had the specific intent to promote the gang when he shot at the
officers and illegally possessed the firearms. The crimes were committed by
appellant, an acknowledged Big Hazard gang member, while in the company of
another Big Hazard gang member, in territory claimed by the gang. After
committing the crimes, appellant claimed the crimes for the gang by yelling out the
gang’s name (Hazard) and threatening the officers. From appellant’s conduct, a
22
reasonable person could infer that members of the Big Hazard gang were not afraid
of attacking and killing police officers and accordingly, would not hesitate to kill
civilians. In addition, Officer Meneses opined that the shootings increased the
community’s fear of the Big Hazard gang, and that the gang would benefit from
community members’ fear and reluctance to report crimes committed by gang
members. As our Supreme Court has observed, “[e]xpert opinion that particular
criminal conduct benefited a gang by enhancing its reputation for viciousness can
be sufficient to raise the inference that the conduct was ‘committed for the benefit
of . . . a[] criminal street gang’ within the meaning of section 186.22(b)(1).”
(People v. Albillar (2010) 51 Cal.4th 47, 63; accord People v. Gardeley (1996)
14 Cal.4th 605, 619 [from expert testimony that assault was “‘classic’” gang
activity that frightened residents and secured gang’s drug-dealing stronghold in the
area, jury could reasonably conclude charged offense was committed for benefit of
gang and with specific intent of promoting its criminal activities under § 186.22,
subd. (b)(1)]; People v. Vazquez (2009) 178 Cal.App.4th 347, 351, 354 [reasonable
jury could infer from expert testimony that violent crimes increased respect for
gang and intimidated neighborhood residents, and from other evidence in record
that murder was committed with specific intent to promote gang’s criminal
activities].)
D. Sentences on Gun Possession Charges
Appellant contends the sentences imposed for being a felon in possession of
a firearm should have been stayed pursuant to section 654, as the evidence was
insufficient to establish that appellant possessed the handgun and shotgun at a
point in time that was distinctly antecedent to the commission of the other
offenses. We disagree. The record shows that when the officers first saw
appellant, they did not observe a firearm. However, appellant subsequently
23
produced a weapon on two separate occasions to shoot at the officers. Appellant
necessarily possessed those weapons prior to committing his crimes. (See People
v. Jones (2002) 103 Cal.App.4th 1139, 1147 [defendant “necessarily must have
had either actual or constructive possession of the gun while riding in the car, as
evidenced by his control over and use of the gun during the shooting”].) In
closing, the prosecutor argued that appellant could have had the weapons hidden
under his jacket when the officers first saw him, and the record does not foreclose
that possibility. In short, substantial evidence supports the jury’s findings that
appellant illegally possessed the firearms.
Appellant’s reliance on People v. Bradford (1976) 17 Cal.3d 8, 22
(Bradford) and People v. Venegas (1970) 10 Cal.App.3d 814 (Venegas), is
misplaced. In both cases, the defendants fortuitously came into possession of a
firearm to commit their assaults. In Bradford, the defendant wrestled the peace
officer’s pistol from him and fired five shots at the officer. (Bradford, supra, at
p. 13.) In Venegas, no evidence was presented showing that the defendant was in
possession of a firearm before he began shooting. Rather, the evidence suggested
that an unidentified third man walked up to defendant’s table and pulled out a gun,
after which a struggle ensued and the defendant obtained the gun and began
shooting. (Venegas, supra, at p. 820.) In contrast, here, defendant was in
possession of the firearms before he used the shotgun to fire at Ensley or produced
7
the handgun to point it at Vazquez.
7
As appellant’s convictions could be based on a jury’s findings of actual
possession of the firearms, we need not address whether the evidence was
sufficient to sustain a conviction solely on the basis of constructive possession.
However, we note that appellant did actually use the firearms. (Cf. People v.
Sifuentes (2011) 195 Cal.App.4th 1410, 1415 [where a “‘gang gun’” was not on
appellant’s person but located in mattress nearby, evidence was insufficient to
24
E. Pitchess Motion
Finally, appellant requests that this court review the in camera proceedings
on the Pitchess motion. Prior to trial, appellant filed a Pitchess motion for
discovery of personnel information relating to Officers Vazquez and Ensley
relevant to allegations of use of excessive force, dishonesty, and fabrication of
evidence. On November 18, 2011, the trial court found good cause to hold an in
camera hearing solely as to acts of violence and fabrication. After reviewing the
materials, the court ordered certain documents disclose to the defense. We review
a trial court’s decision on a Pitchess motion for an abuse of discretion.
This court has independently reviewed the sealed transcript of the in camera
proceeding on the Pitchess motion. We conclude the trial court did not abuse its
discretion in determining 11 items from Vazquez’s personnel files and 2 items
from Ensley’s personal files should be disclosed. (People v. Mooc (2001)
8
26 Cal.4th 1216, 1232.)
show constructive possession, because no evidence was presented that appellant
had a right to control the firearm].)
8
One of the complaints for excessive force was made against both officers.
Thus, there were a total of 12 items disclosed to the defense.
25
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, J.
We concur:
WILLHITE, Acting P. J.
COLLINS, J.
26