People v. McGehee CA2/8 ( 2014 )

Filed 7/17/14 P. v. McGehee CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B250781
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA073511)
v.
MARCEL MCGEHEE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Daniel B.
Feldstern, Judge. Affirmed.
Law Office of Alan Goldberg and Alan M. Goldberg for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and
Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
******
Appellant Marcel McGehee appeals a judgment following his conviction for
possession of a firearm and ammunition by a felon, arguing (1) the trial court abused its
discretion in refusing a day-of-trial request to discharge his retained counsel and continue
trial so he could retain a new attorney; (2) he did not voluntarily admit his prior convictions;
and (3) his counsel was ineffective in various respects. We affirm.
PROCEDURAL HISTORY
Appellant was charged with four counts: (1) transportation of marijuana (Health &
Saf. Code, § 11360, subd. (a)), (2) possession of concentrated cannabis (Health & Saf.
Code, § 11357, subd. (a)), (3) possession of a firearm by a felon (Pen. Code, § 29800, subd.
(a)(1)),1 and (4) possession of ammunition by a felon (§ 30305, subd. (a)(1)). Prior to trial,
the court dismissed the drug counts on the prosecution’s request, and appellant waived his
right to a jury trial on his prior convictions and the parties stipulated he had two. A jury
convicted him of the remaining felon-in-possession counts. The court sentenced him to the
midterm of two years on the firearm count and a concurrent midterm of two years on the
ammunition count. He timely appealed.
STATEMENT OF FACTS
On April 13, 2012, around 1:30 p.m., Los Angeles County Sheriff’s Deputy James
Peterson monitored traffic from a marked patrol vehicle parked on the southbound side of
the Interstate 5 freeway just north of the City of Castaic. At the time it was raining. Deputy
Peterson saw appellant drive by in a brown Chevrolet sedan (which he would later
determine was a rental car) with a female passenger. Appellant was driving without his
headlights and changed lanes without signaling, which were violations of the Vehicle Code,
so Deputy Peterson initiated a traffic stop. Deputy Brian Rooney arrived as backup and the
officers searched the vehicle.2 They discovered a size “4XL” hooded sweatshirt in the back
seat with a Glock pistol in the front pocket loaded with 13 rounds of live ammunition.
1 All further statutory references are to the Penal Code unless otherwise noted.
2 At the preliminary hearing and during a pretrial hearing on a motion to suppress,
Deputy Peterson testified he smelled unburned marijuana in the car, which prompted
2
Deputy Peterson arrested appellant, who was a “fairly large gentleman” at six feet
four inches tall, weighing approximately “320, 330 pounds.” In contrast, the female
passenger was approximately five feet four or five inches tall, weighing around “130, 140
pounds.” Deputy Peterson ran the serial number on the gun in a Department of Justice
database, but uncovered no record of a dealer sale.
The parties stipulated appellant had suffered a prior felony conviction. Appellant
presented no evidence.
DISCUSSION
1. Request to Discharge Retained Counsel; Waiver of Jury Trial on Priors
Appellant challenges the trial court’s denial of his day-of-trial request to discharge
his retained counsel and continue trial so he could retain a new attorney. In a related
argument, he claims his waiver of his jury trial right for his prior convictions was not
knowing and voluntary, which occurred within the discussion of his request to discharge his
retained counsel. We reject both contentions.
A. Proceedings
At the preliminary hearing, appellant was represented by counsel retained only for
that hearing. On February 21, 2013, appellant appeared in propria persona for his
arraignment and requested a continuance to hire a private attorney. A week later, appellant
appeared in court represented by a private attorney.
On Friday, July 12, 2013, appellant appeared before the court with his attorney to
discuss any final possibilities for settlement. The court noted trial was set for the following
Tuesday, July 16, 2013, and if the case did not settle, the trial would proceed on that date.
Appellant rejected the prosecution’s settlement offer and acknowledged trial would go
forward on the date set. The court ordered a jury panel and anticipated jury selection would
begin on that date.
officers to conduct the search. Officers found a mason jar of marijuana, a pill bottle
containing cannabis (or hash), and an unburned marijuana cigarette in the passenger area.
After the prosecution dismissed the drug counts, none of that evidence was introduced at
trial.
3
The morning of July 16, 2013, however, defense counsel informed the court
appellant had informed her the prior day that he wanted to retain a new attorney. Appellant
confirmed he wanted to hire new counsel. The court responded, “So you were in my court
on July 12th, knowing that there was a trial date today, and you waited until yesterday to
tell . . . .” Appellant interrupted, “No, I came -- It was just Friday. I didn’t know all this
legal matter and how everything, the actual stuff. Once I found out, I made it over the
weekend. So the quickest I was able to contact an attorney was Monday, and I have an
appointment actually today as soon as I get out of here go talk with one person.” The court
asked if he had retained anyone yet, and appellant responded, “As of today as soon as I go
meet him, I can.” When asked again, he conceded he had not retained anyone.
The court suggested if appellant had another attorney ready to start trial that day,
“[t]here would not be any further delay in the proceedings,” but “[t]here is no record in this
file that you’ve made this request previously, that this is just really just a last-minute
request.” Even though appellant had his current counsel for months, the court noted
appellant was “raising this issue on the actual trial date.” When the court asked what new
information he had obtained, appellant said, “[T]his is the actual trial date, that we’re
proceeding to trial.” The court reminded him that it had said on the previous Friday that the
trial was proceeding on July 16, 2013, “[s]o I can’t account for you not listening, but you
were paying attention. I was clear on that. I don’t believe what you’re saying right now,
I’m sorry to say. I believe you knew that today was the trial date. And to say anything
otherwise would be that you closed your ears during the entire proceeding on July 12th. [¶]
So, again, any attorney that you would hire today would be requesting additional time to
prepare for trial. And that’s what makes this untimely, your asking for this. I first learned
about it just now, and we have a trial set for today and it’s not timely. And so I’m not going
to relieve your attorney today who is prepared for your trial because on the very last minute
you decide that you want someone else.” In response, appellant denied his counsel was
prepared for trial “because I haven’t retained her for trial.” The court noted she was the
attorney of record for him. The court ultimately denied appellant’s request, finding no
“good cause to continue, if that’s [appellant’s] request, for the purpose of hiring a new
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lawyer. The court believes that his request here made today, first time on the record, is
untimely and there has been no previous request for change of counsel since [his counsel]
has been representing him.”
When the parties returned from the lunch break, the issue arose again when the court
broached the subject of appellant’s prior convictions with counsel, suggesting appellant
could stipulate to them to avoid the prosecution having to prove them to the jury, which
would otherwise allow the jury to learn the basis of the prior convictions. Because appellant
had not yet discussed the issue with his attorney, the court gave him time to do so. The
court explained in some detail the benefit of stipulating to a prior conviction, that is,
avoiding “some prejudice” if the jury learned the basis of the prior convictions. The court
also explained, however, that by stipulating that they exist, appellant would be giving up his
right to a jury trial on that issue.
Appellant affirmed several times he understood, and he conferred with his attorney,
but he “wanted the record to reflect” his Sixth Amendment right to “proper counsel” was
being violated. The court said, “You hired this lawyer. She’s privately retained by you.”
Appellant responded, “Yes.” Because appellant was making a “very generalized allegation
about her,” the court asked what she was “not doing that she’s supposed to do?” Appellant
said, “I don’t feel she’s representing me in the way that I need to be represented properly for
trial . . . .” The court asked appellant’s counsel if she was ready to proceed with trial, and
she responded she was.
The court returned to the topic of stipulating to the prior convictions, and appellant
reiterated that he could not stipulate without being able to speak with his new counsel and
he felt his Sixth Amendment right was being violated. Appellant and his counsel conferred,
and the court overheard their discussion. It explained, “You’re objecting to this attorney
being the one to represent you. I’ve already overruled your objection. So I think you need
to be realistic. You can cooperate with her and help her defend you, or you can resist and
keep telling me that you object on Sixth Amendment grounds. I’ve already overruled that.
She is your lawyer, she’s prepared, and she’s going forward.” The court asked again about
a stipulation, and appellant wanted the prosecutor to prove the priors, which his counsel
5
indicated was against her advice. When the court pressed appellant to state his decision on
the record, appellant responded, “Once again, without being able to have proper counsel to
know like what’s going on, I wouldn’t know how to answer that.” The court reiterated, “I
believe you do have proper counsel. I believe that she can advise you.”
Appellant still refused to stipulate, so the court asked his counsel what she
recommended to him. Counsel explained she advised him to stipulate, but he did not want
to take that advice. The court observed appellant “at this point . . . is in a very
uncooperative mood right now, not only with me as the court, but with his counsel. [¶] And
I’m just going to make this as clear as I can. Your trial is starting in moments. This is not
the first case I’ve ever handled, this is not the first criminal defendant who has resisted
various aspects of a criminal trial. What I can tell you is that in every case it hurts the
defendant. It does not help. So I’m trying to emphasize this because it’s not too late for you
to make good decisions about how this case is going to proceed, in light of the fact that we
are going forward over your objection about your representation. [¶] You strike me as
intelligent enough. Okay? So if you want—but intelligence is only as useful as the mind
that’s working with it; and if you are of a mind not to cooperate and just not respond to my
questions, that’s your business. I won’t force you to. But I do not have a stipulation at this
point, and therefore the jury will hear what your prior convictions were for, unless there is a
stipulation. So you can keep the same response if you wish, but we’re not really—I don’t
have a stipulation.”
Appellant again conferred with his counsel and indicated he wanted to consult his
family for advice. The court denied the request because there was no time and the jury was
ready to enter. The court asked if appellant had enough time to consult his attorney, and he
said he did. He then agreed to admit the prior convictions. The court advised appellant at
length about the rights he would be waiving, including his right to a jury trial. Appellant
stated he understood his rights, waived them, and admitted two prior convictions. His
counsel joined. The court found appellant had “expressly, knowingly, understandingly, and
intelligently waived his right to a jury trial” on his prior convictions and the parties
stipulated to them.
6
B. Request to Discharge Retained Counsel and Continue Trial
We review the trial court’s denial of appellant’s request to discharge his retained
counsel and continue the trial to retain new counsel for abuse of discretion. (People v.
Maciel (2013) 57 Cal.4th 482, 512 (Maciel) [discharge retained counsel]; People v. Pigage
(2003) 112 Cal.App.4th 1359, 1367 [continuance].)
“‘The right to retained counsel of choice is—subject to certain limitations—
guaranteed under the Sixth Amendment to the federal Constitution.’” (Maciel, supra, 57
Cal.4th at p. 512.) “‘The right to discharge a retained attorney is, however, not absolute.
[Citation.] The trial court has discretion to “deny such a motion if discharge will result in
‘significant prejudice’ to the defendant [citation], or if it is not timely, i.e., if it will result in
‘disruption of the orderly processes of justice . . . .’”’” (Ibid.) Similarly, a continuance for
the purpose of retaining counsel “may be denied if the accused is ‘unjustifiably dilatory’ in
obtaining counsel, or ‘if he arbitrarily chooses to substitute counsel at the time of trial.’
[Citation.] [¶] However, ‘a myopic insistence upon expeditiousness in the face of a
justifiable request for delay can render the right to defend with counsel an empty formality.’
[Citation.] For this reason, trial courts should accommodate such requests—when they are
linked to an assertion of the right to retained counsel—‘to the fullest extent consistent with
effective judicial administration.’” (People v. Courts (1985) 37 Cal.3d 784, 790-791.)
Nevertheless, “[w]here a continuance is requested on the day of trial, the lateness of the
request may be a significant factor justifying denial absent compelling circumstances to the
contrary.” (People v. Jeffers (1987) 188 Cal.App.3d 840, 850 (Jeffers).)
Given that appellant sought to discharge his retained attorney on the morning of jury
selection and had not yet retained a new attorney prepared to move forward with trial, the
trial court did not abuse its discretion in finding his request untimely. (People v. Keshishian
(2008) 162 Cal.App.4th 425, 429 (Keshishian) [affirming denial of day-of-trial discharge
request when defendant explained he “‘lost confidence’” in his retained attorney because the
case had been pending for two and a half years, an indefinite delay was necessary, and
defendant had not identified or retained new counsel]; People v. Hernandez (2006) 139
Cal.App.4th 101, 109 [suggesting denial of a request to discharge retained counsel “almost
7
immediately before jury selection was to begin” would have been proper because it was
“almost inconceivable that the public defender (or alternate counsel) would be able and
willing to defend the case without a material postponement of the trial date”]; Jeffers, supra,
188 Cal.App.3d at pp. 850-851 [affirming denial of day-of-trial continuance because
defendant’s current attorney was ready, defendant had five months to retain new counsel if
he desired, and witnesses would have been inconvenienced].)
While appellant claims to have notified the court about his desire to discharge his
counsel as soon as was practicable because a “rift” occurred with his attorney over the
weekend between July 12, 2013, and the start of jury selection on July 16, 2013, the record
belies that assertion. When asked what new information he had obtained over the weekend,
appellant said only, “[T]his is the actual trial date, that we’re proceeding to trial.” And
when pressed, appellant asserted the “very generalized allegation” that she was not
representing him “properly” for trial. Counsel herself affirmed she was ready to proceed to
trial, suggesting appellant’s request was a delaying tactic in the face of an imminent trial,
not a legitimate complaint about his counsel’s representation. (See People v. Turner (1992)
7 Cal.App.4th 913, 919 [finding “the vagueness of [the defendant’s] complaints supported
the [trial] court’s apparent finding that the motion was motivated not by any genuine
dissatisfaction with counsel but by a desire to delay the trial”].) The trial court did not
believe appellant’s last-minute complaints, a credibility finding we will not disturb on
appeal.
Appellant’s request could have also significantly delayed trial. Appellant claimed he
had an appointment with a new attorney that afternoon, but he had not retained that attorney
and there was no assurance after the meeting he would have. Even if he had, this new
attorney surely would have required some time to prepare for trial. While appellant now
suggests that a new attorney would have only needed two weeks, that is at odds with his
contention that his retained attorney was ineffective for, inter alia, failing to retain and call
expert witnesses (discussed below). If, as appellant suggests, his new attorney would have
been required to explore expert witnesses and other avenues of evidence, a significant delay
would have ensued.
8
Appellant argues the trial court inadequately explored the reasons for his request, but
further inquiry was unnecessary. In discharging retained counsel, a defendant is “not
required to demonstrate ‘inadequate representation by his retained attorney, or to identify an
irreconcilable conflict between them.’” (Maciel, supra, 57 Cal.4th at p. 512.) In fact, a
hearing “at which the court determines whether counsel is providing adequate representation
or is tangled in irreconcilable differences with the defendant is ‘“[an] inappropriate vehicle
in which to consider [the defendant’s] complaints against his retained counsel.”’”
(Keshishian, supra, 162 Cal.App.4th at p. 429.)
Thus, the trial court did not abuse its discretion in denying appellant’s request to
discharge his retained counsel and continue the trial for him to retain new counsel.
C. Waiver of Jury Trial on Priors
Appellant challenges his waiver of his right to a jury trial on his prior convictions,
which occurred in the midst of his request to discharge his retained counsel. He advances
several arguments, but we are not persuaded. First, any issue with his waiver is beside the
point because the trial court could have accepted the stipulation to his status as a felon for
the purpose of the felon-in-possession charges without advising him of his right to a jury
trial and taking a waiver. (See People v. Newman (1999) 21 Cal.4th 413, 422-423.)
Second, appellant contends he did not have sufficient time to discuss the matter with his
attorney, but the stipulation was a tactical decision, so his attorney could have entered it on
his behalf, even if he had been fully advised and disagreed. (People v. Harris (1993) 14
Cal.App.4th 984, 990 [“It is well established that trial counsel has the right to control the
proceedings and make tactical decisions which are contrary to the expressed wishes of his or
her client.”]; see People v. Adams (1993) 6 Cal.4th 570, 578 [“Evidentiary stipulations have
long been recognized as tactical trial decisions which counsel has discretion to make
without the express authority of the client.”].) Finally, appellant contends the trial court
coerced him into admitting his priors, but we have reviewed the record and find no coercion.
2. Ineffective Assistance of Counsel
“‘In assessing claims of ineffective assistance of trial counsel, we consider whether
counsel’s representation fell below an objective standard of reasonableness under prevailing
9
professional norms and whether the defendant suffered prejudice to a reasonable probability,
that is, a probability sufficient to undermine confidence in the outcome. [Citations.] A
reviewing court will indulge in a presumption that counsel’s performance fell within the
wide range of professional competence and that counsel’s actions and inactions can be
explained as a matter of sound trial strategy. Defendant thus bears the burden of
establishing constitutionally inadequate assistance of counsel. [Citations.] If the record on
appeal sheds no light on why counsel acted or failed to act in the manner challenged, an
appellate claim of ineffective assistance of counsel must be rejected unless counsel was
asked for an explanation and failed to provide one, or there simply could be no satisfactory
explanation. [Citation.] Otherwise, the claim is more appropriately raised in a petition for
writ of habeas corpus.’” (People v. Carter (2005) 36 Cal.4th 1114, 1189 (Carter).)
Appellant asserts a miasma of claims for ineffective assistance of counsel, none of
which are meritorious. We assume the parties are familiar with the record and we only
briefly address each claim below.
A. Overall Performance
Appellant claims his counsel failed to use “ancillary services” for his defense, most
particularly the subpoena power to call an expert witness on when the headlights in his
rental car illuminate. The record does not disclose why counsel chose not to use any
“ancillary services” and there could have been tactical reasons not to, so we reject this
claim. Further, appellant has not shown any prejudice because he failed to point to any
exculpatory evidence that would have been uncovered if counsel had used “ancillary
services.” (People v. Williams (2013) 56 Cal.4th 630, 692-693 [failure to hire experts to
analyze physical evidence was not prejudicial because defendant did not identify evidence
that would have been uncovered]; People v. Szadziewicz (2008) 161 Cal.App.4th 823, 839
(Szadziewicz) [failure to subpoena witness not ineffective or prejudicial because record did
not reveal witness’s expected testimony].)
Relatedly, appellant claims his counsel failed to present a defense case-in-chief.
Again, the record does not disclose why counsel chose to rely on attacking the prosecution’s
case, rather than presenting a defense case-in-chief, so we must reject this claim on direct
10
appeal. There are certainly tactical reasons for vigorously attacking the prosecution’s case
in lieu of presenting a case-in-chief and appellant has proffered no reason why it constituted
ineffective assistance to do so in this case. (Carter, supra, 36 Cal.4th at pp. 1189-1190.)
B. Pretrial Performance
In a single sentence, appellant claims his counsel failed to file a motion pursuant to
Pitchess v. Superior Court (1974) 11 Cal.3d 531, in order to obtain discovery related to
officer complaints. The record does not disclose that any such complaints plausibly existed
or, if they did, why counsel would have chosen (or forgone) the filing of a Pitchess motion
to obtain them, so we reject this claim.
Appellant claims his attorney filed an “incompetent” pretrial motion to suppress
pursuant to section 1538.5.3 However, the motion adequately set forth a prima facie case
that the police acted without a warrant, triggering the prosecution’s burden to demonstrate a
justification. (People v. Williams (1999) 20 Cal.4th 119, 136.) But even if the motion was
inadequate, the issue was thoroughly addressed both at the preliminary hearing and in a
pretrial hearing.
Also in conjunction with his motions to suppress, appellant contends his counsel
(presumably both his preliminary hearing attorney and his trial attorney, although not
entirely clear) failed to question Deputy Peterson about the level of visibility at the time of
the traffic stop and failed to call an expert witness to testify to visibility and how the rental
car’s headlamps worked. As to the visibility issue, appellant has not identified what
favorable testimony Officer Peterson or an expert would have given. (People v. Datt (2010)
185 Cal.App.4th 942, 952-953 (Datt) [failure to call expert witness not ineffective without
showing trial counsel failed to consult expert, and if counsel did, whether expert would have
given favorable testimony]; Szadziewicz, supra, 161 Cal.App.4th at p. 839.) Indeed, the
3 Apparently, both appellant’s preliminary hearing attorney and trial attorney filed
motions to suppress, but only the motion filed by his trial counsel was included in the record
on appeal. This was probably because appellant’s preliminary hearing attorney withdrew
the first motion at the end of the preliminary hearing and the court allowed appellant to
renew it “in the next court if that’s what you think is okay to do.”
11
visibility issue appears to have been irrelevant. Deputy Peterson testified he pulled
appellant over for driving without his headlights on while it was raining, which violated
Vehicle Code section 24400, subdivision (b). That provision requires headlamps to be
illuminated “during darkness, or inclement weather, or both,” and “inclement weather” is
defined as either “(1) A condition that prevents a driver of a motor vehicle from clearly
discerning a person or another motor vehicle on the highway from a distance of 1,000 feet”
or “(2) A condition requiring the windshield wipers to be in continuous use due to rain,
mist, snow, fog, or other precipitation or atmospheric moisture.” (Veh. Code, § 24400,
subd. (c)(1)-(2).) Deputy Peterson testified at the preliminary hearing that it was raining
heavy enough that day to have windshield wipers on, and he had his vehicle’s windshield
wipers on, as did most or all of the cars passing on the freeway. Because that satisfied
Vehicle Code section 24400, subdivision (b) without regard to visibility, any additional
evidence on visibility would not have changed the outcome of the suppression proceedings.
As for calling an expert on the way in which his rental car’s headlamps illuminate, appellant
failed to demonstrate whether his counsel consulted an expert, and if so, whether the expert
would have given favorable testimony. (Datt, supra, at pp. 952-953.) In any case, the
record does not disclose the reasons for these tactical decisions, so we must reject these
claims.
Appellant claims his counsel failed to further question appellant and Officer Peterson
about appellant’s lane change in violation of Vehicle Code section 22107. Appellant
suffered no conceivable prejudice because his lack of headlights justified the stop,
regardless of his lane change. But even if appellant’s lane change was the basis for
conducting the traffic stop, his claim still fails. Vehicle Code section 22107 provides, “No
person shall turn a vehicle from a direct course or move right or left upon a roadway until
such movement can be made with reasonable safety and then only after the giving of an
appropriate signal in the manner provided in this chapter in the event any other vehicle may
be affected by the movement.” (Veh. Code, § 22107.) At the pretrial suppression hearing,
the court asked appellant, “How close was the closest car to you at that time you made that
lane change?” Appellant responded, “I don’t know exactly what lane change he’s talking
12
about, but it was traffic. I was by semis. I was in the slow lane.” The court asked, “So
right before the officer stopped you, pulled you over, how would you describe the traffic
around you? Heavy, moderate, low?” Appellant responded, “Moderate.” This testimony
supported finding a violation of Vehicle Code section 22107, so appellant’s trial counsel
may have decided not to risk soliciting more unfavorable testimony from him or Deputy
Peterson. Because there could have been tactical reasons for this decision, we must reject
this claim.
Appellant also contends his trial counsel incorrectly argued at the suppression
hearing that appellant did not violate Vehicle Code section 22107 with his lane change
because no other vehicles were affected, which prompted the court to correct her that the
statute required only that other vehicles “may” be affected. Appellant cannot possibly show
prejudice because there was no evidence anyone, including the trial court, misunderstood
the requirements of the statute.
Appellant contends his counsel should have called an expert witness on the issue of
whether Deputy Peterson could have smelled marijuana outside appellant’s rental car based
on the unburned marijuana found in the passenger area. But this claim fails because, as with
his claim regarding a visibility and headlamps experts, appellant has not established his
counsel failed to consult any experts, or if counsel did, whether those experts would have
provided favorable testimony. (Datt, supra, 185 Cal.App.4th at pp. 952-953.)
Appellant argues his trial counsel failed to adequately explain to him the difference
between plea offers made before and after a preliminary hearing. The record indicates the
court asked whether counsel did, in fact, explain the difference to him, and he responded,
“Yes, briefly.” Still, the court explained the difference on the record and asked if appellant
understood, to which he responded, “Yes.” We find neither deficient performance nor
prejudice.
Appellant contends his trial counsel improperly “brought up” the death certificate of
appellant’s grandfather in pretrial proceedings because it was irrelevant that appellant was
traveling to his grandfather’s funeral the day he was stopped. Appellant never brought up
13
the death certificate during trial or offered it into evidence, so there was no possible
deficient performance or prejudice.
C. Jury Selection
In another exceedingly brief contention, appellant claims counsel failed to challenge
the panel of prospective jurors because it did not contain any African-Americans. Near the
conclusion of jury selection, appellant’s trial counsel objected to the composition of the jury
because there were no African-American jurors on it. The court noted the jury as currently
composed included male and female Hispanics and Asians, and that no African-American
prospective jurors were apparently part of the panel of prospective jurors. The list of jurors
was drawn from the wide geographic area of the district and the current panel “looks very
much like the dozens and dozens of jury panels that I see here in this particular part of the
county.” The court overruled the objection because the “composition of this jury in its
totality is a fair representation, notwithstanding the fact that there . . . do not appear to be
any African-Americans.”
In order to show a violation of the right to a jury selected from a “‘fair cross section
of the community,’” a defendant must show “‘(1) that the group alleged to be excluded is a
“distinctive” group in the community; (2) that the representation of this group in venires
from which juries are selected is not fair and reasonable in relation to the number of such
persons in the community; and (3) that this underrepresentation is due to systematic
exclusion of the group in the jury-selection process.’” (People v. Ramirez (2006) 39 Cal.4th
398, 444.) Appellant has identified no facts to support the second and third requirements or,
if he had, that any objection to the panel of prospective jurors would have been sustained.
(In re Seaton (2004) 34 Cal.4th 193, 207 [rejecting ineffective assistance claim for failure to
object to jury panel because defendant did not show an objection would have been sustained
and failed to allege facts satisfying third prong].) Thus, appellant has shown neither
ineffective assistance nor prejudice.
Appellant also contends his attorney failed to strike a juror who stated he or she had
“a little issue” without elaborating. The juror ultimately stayed on the panel, stating, “I’ll
see how I make it.” The court asked if either side wanted to question the juror, and neither
14
did. Appellant now speculates this juror may have “wanted off the panel because he was
racist and knew it,” but nothing in the record suggests at any point this or any other juror
was biased. As a result, appellant has shown neither deficient performance nor prejudice.4
D. Trial Performance
Appellant argues his counsel should have presented a defense that he may have
possessed the firearm for his protection or the protection of others. This claim is meritless.
Self-defense may defeat a felon-in-possession charge only when there is evidence the
defendant was “in imminent peril of great bodily harm or reasonably believes himself or
others to be in such danger” (People v. King (1978) 22 Cal.3d 12, 24), and there was no
such evidence in this case. Counsel was not deficient for failing to raise an inapplicable
defense. (People v. Pepper (1996) 41 Cal.App.4th 1029, 1038.) For this reason, we also
reject appellant’s claim the lack of self-defense impacted his sentence.
Appellant contends his counsel improperly solicited testimony from Deputy Peterson
on cross-examination that appellant’s headlamps were not illuminated and failed to establish
it was dark outside at the time of the stop. But counsel could not have been ineffective
because by the time of trial these points were irrelevant to the felon-in-possession charges.
These facts were pertinent to the motion to suppress, but the motion had already been
denied. The only issue at trial was whether appellant was a felon in possession of a firearm
or ammunition, which required proof that (1) appellant possessed a firearm or ammunition;
(2) appellant knew he possessed the firearm or ammunition; and (3) appellant had
previously been convicted of a felony. (§§ 29800, subd. (a)(1), 30305, subd. (a)(1).)
Whether it was dark and whether appellant’s headlamps were illuminated were at best
background facts that could not have had an impact on the jury’s verdict. We find neither
ineffective assistance nor prejudice.
Appellant argues his counsel improperly asked Deputy Peterson on cross-
examination who owned the sweatshirt containing the gun. We find no possible prejudice
4 Appellant also claims his attorney did not question jurors on bias, but that contention
is purely speculative because the voir dire was not transcribed.
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because, while counsel asked this question, Deputy Peterson never answered it. Instead,
when asked whether he asked appellant who owned the sweatshirt, he responded, “No.”
The line of questioning stopped there. Thus, no damaging testimony was elicited in front of
the jury.
Appellant also claims his counsel should have asked Deputy Peterson if Deputy
Rooney asked appellant or his passenger who owned the sweatshirt. But appellant has not
suggested what favorable testimony that question would have elicited, and in any event,
during cross-examination, Deputy Rooney testified that no one told him the sweatshirt
belonged to appellant. Again, appellant can show no prejudice.
Appellant claims his counsel made a deficient motion to dismiss pursuant to section
1118.1.5 At the close of evidence, his counsel briefly argued that the evidence was
insufficient, but the trial court disagreed. And rightly so, because there was substantial
evidence to support a conviction: the firearm and ammunition were found in the car
appellant was driving within his reach wrapped in a sweatshirt sufficiently large to fit him,
which supported a reasonable inference that the sweatshirt belonged to him and he
possessed the gun found inside it. (Maciel, supra, 57 Cal.4th at p. 522 [§ 1118.1 motion is
properly denied when there is “‘“‘substantial evidence of the existence of each element of
the offense charged’”’”].) Appellant has not shown what additional information his counsel
should have presented or whether it would have supported granting the motion. Hence, we
find no deficient performance or prejudice.6
5 Section 1118.1 states, “In a case tried before a jury, the court on motion of the
defendant or on its own motion, at the close of the evidence on either side and before the
case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of
one or more of the offenses charged in the accusatory pleading if the evidence then before
the court is insufficient to sustain a conviction of such offense or offenses on appeal. If such
a motion for judgment of acquittal at the close of the evidence offered by the prosecution is
not granted, the defendant may offer evidence without first having reserved the right.”
6 In his reply brief, appellant for the first time claims his counsel should have filed a
new trial motion. We find this contention forfeited. (People v. Clayburg (2012) 211
Cal.App.4th 86, 93 [arguments raised for the first time in reply brief are forfeited].)
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E. Sentencing
Finally, appellant claims counsel’s sentencing brief was deficient because it did not
expressly analyze mitigating factors. To the contrary, his counsel argued for the low or
midterm for count three and for a concurrent term on count four, pointing out appellant had
prior convictions but none for similar charges, he had never been in prison before, and the
instant case arose from a “single period of aberrant behavior.” The court partially agreed by
imposing a concurrent midterm sentence on count four. The court explained it imposed the
midterm sentence on count three because appellant had possessed a fully loaded gun and
had a history of felony convictions. Appellant has not identified what arguments counsel
failed to make or whether those arguments would have resulted in a more favorable
sentence. Thus, we find no deficient performance or prejudice.
DISPOSITION
The judgment is affirmed.
FLIER, J.
WE CONCUR:
BIGELOW, P. J.
RUBIN, J.
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