People v. Sanders , 271 Cal. Rptr. 534 ( 1990 )

Opinion

WOODS (Fred), J.

A jury convicted appellant of second degree murder (Pen. Code, §§ 187, 189¹) and found true the firearm use allegation (§§ 12022.5, 1203.06, subd. (a)(1).) Probation was denied and he was sentenced to state prison for a total term of 17 years to life. Appellant appeals on various grounds and also petitions for habeas corpus on the ground that he was denied his constitutional right to the effective assistance of counsel at trial. The proceedings have been consolidated for decision. We deny the petition and affirm the judgment.

Procedural and Factual Background

Two families are entwined in these events, the Gregory and Sanders families. In 1985, when these matters occurred, Kelvin Sanders was married to, but estranged from, Raynetta Gregory Sanders. On occasion he would spend the night with her at the Gregory family residence, 2009 N. Slater Street in Compton.

On the morning of July 11, 1985, Kelvin Sanders was at the Gregory residence, having spent the night there. At around 10 a.m. appellant, Kelvin’s brother, arrived to pick him up. Appellant was driving his sister’s car, a burgundy BMW.

As Kelvin joined appellant in the car, two of Raynetta’s younger brothers, Norman and David Gregory, approached the BMW and punched appellant. Each hit him once. When appellant, in retaliation, tried to run them down with his car, they threw rocks at the BMW, cracking its windshield. As appellant was leaving he said to Norman and David, “We’ll be back. We’re going to get you, motherfuckers.”

About five minutes later another Sanders brother, Calvin, arrived at the Gregory residence looking for Kelvin. Learning Kelvin had departed with appellant, Calvin left.

Approximately 20 minutes later Raynetta received two short telephone calls from Kelvin who said she should get out of the house. She dressed her children and went next door.

About 20 minutes after the phone calls various witnesses heard what sounded like a gunshot. David, Terrell, and Norman Gregory and their friends Darryl Anderson and William Thomas all ran to the inside front door of the Gregory home. They all saw² appellant in front of the house standing with a rifle. Raynetta, after she heard what sounded like a cherry bomb ran outside, looked towards her house, and saw appellant with a rifle.

With all five young men crowded around him, Norman Gregory opened the front door.

Appellant said, “Come out now, motherfuckers.”

Norman replied, “Put the gun down. Let’s go head up.”

Appellant walked towards the Gregory front door, raised the rifle, pointed it at the door and fired. The gunshot fatally struck Norman Gregory in the back of the neck and exited his left jaw.

Appellant ran to the burgundy BMW, in which Kelvin and perhaps a third person were sitting, and left.

When the police arrived, before the ambulance, Norman was bleeding profusely. Some witnesses initially told the police that it was Xavier Sanders, appellant’s brother, who had shot Norman, and one witness at first told them he wasn’t sure who the shooter was.

The defenses were alibi, that the victim was shot from inside the residence, and that if shot from outside, Xavier Sanders was the shooter.

Contentions on Appeal

Appellant contends:

1. CALJIC jury instruction No. 2.11.5 prejudiced appellant by creating the impression that the jury should not consider appellant’s defense.

2. The prosecutor’s comments appealing to juror passion and prejudice were misconduct requiring reversal.

3. The trial court erred in considering the “victim impact statement” contained in the probation report when sentencing appellant.

4. Appellant was denied the effective assistance of counsel when Mr. Jefferson failed to produce testimony from appellant’s brother that he, not appellant, was the actual shooter, and again when Ms. Abramson declined to move for a new trial on that basis.

5. The trial court was under a sua sponte duty to order either a new trial or further factual hearings once it learned of Xavier’s confession.

Discussion

1. CALJIC jury instruction No. 2.11.5 prejudiced appellant by creating the impression that the jury should not consider appellant’s defense.

Over appellant’s objection the trial court instructed the jury that, “There has been evidence in this case indicating that a person other than defendant was or may have been involved in the crime for which the defendant is on trial, [fl] You must not discuss or give any consideration as to why the other person is not being prosecuted in this trial or whether he has been or will be prosecuted.” (CALJIC No. 2.11.5 (4th ed. 1979).)

Appellant argues that there was no evidence more than one person “was involved in the crime” and that therefore “the instruction inferred [s/c] that the jury should . . . not discuss [] . . . why appellant . . . was being prosecuted for the death of Norman Gregory.” In other words, appellant maintains, even if the jury believed appellant was not the person with the rifle or if they believed the victim was shot by some other person from inside the house, this instruction directed them to still convict appellant.

We disagree both with appellant’s assumption and with his interpretation.

A trial court has a duty to instruct a jury “on the general principles of law relevant to the issues raised by the evidence.” (People v. St. Martin (1970) 1 Cal.3d 524, 531 [83 Cal.Rptr. 166, 463 P.2d 390].) There was evidence that a person other than the shooter may have been involved in the crime. E.g., Kelvin Sanders was with appellant at the Gregory residence when appellant said “Well be back. We’re going to get you. . . .” (Italics added.) Then, at the time of the shooting many witnesses saw one or two other people in the burgundy BMW, the car appellant used. One witness, David Gregory, thought the other person in the car was Kelvin Gregory. Thus, there was an evidentiary predicate for the instruction.³

Contrary to appellant’s interpretation, the instruction did not impinge upon any of appellant’s defenses. It merely directed the jury not to be distracted from its task of determining appellant’s guilt or innocence by considering whether some uncharged person might, to some degree, be culpable.

We find no error in the giving of this instruction.

2. The prosecutor’s comments appealing to juror passion and prejudice were misconduct requiring reversal.

Appellant cites the following examples of prejudicial prosecutorial argument: “There is a four inch gap spurting blood”; “. . . four-inch hole in his cheek”; “Again Norman is shot; he is laying down; there is a four inch gap in his neck. The ambulance never seems to get there.”; “. . . 4 inch gap, spurting blood . . . .”

Initially, we note that appellant made no objection to any of these prosecutorial comments and is therefore precluded from claiming error on appeal. (Evid. Code, § 353; People v. Green (1980) 27 Cal.3d 1, 27 [164 Cal.Rptr. 1, 609 P.2d 468].) The reason appellant, which is to say trial counsel, made no objection to these during-argument comments is no doubt because they are not objectionable. During argument counsel may “comment on the credibility of a witness in light of all the evidence presented.” (People v. Prysock (1982) 127 Cal.App.3d 972, 997 [180 Cal.Rptr. 15].) That is what the prosecutor, by these relatively bland comments, was attempting to do.

Defense counsel had impeached prosecution witnesses by their inconsistent statements to the police. The prosecutor attempted to explain the inconsistencies by describing the circumstances: the witness’s brother or friend had just been shot through the neck and jaw, was motionless on the ground, bleeding profusely, and no ambulance had yet arrived.

As the prosecutor himself explained in argument, “I did not mean to prejudice the case or prejudice the defendant in any way when I bring up this four-inch gap. I’m not trying to appeal to your sympathy. The reason it’s important is so you understand why witnesses might have made mistakes shortly after when the ambulance isn’t even there. You shouldn’t convict Sheldon Sanders because of a four-inch gap, but one of the things you have to consider, is it possible someone can really make a mistake when their brother has a four-inch gap, spurting blood and there is no ambulance that seems to be coming? That it is something you should consider.”

The prosecutor’s comments were proper.

3. The trial court erred in considering the “victim impact statement” contained in the probation report when sentencing appellant.

In accordance with California Rules of Court, rule 419, the probation report, which the trial judge read before imposing sentence, contained statements by members of the victim’s family about the victim, appellant, and the crime. Appellant claims it was error for the report to contain these statements.

Appellant relies on Booth v. Maryland (1987) 482 U.S. 496 [96 L.Ed.2d 440, 107 S.Ct. 2529]. Booth is distinguishable since it holds that the Eighth Amendment is violated when “victim impact” evidence is presented to a jury during the sentencing phase of a capital murder trial. None of the three emphasized factors were present here. Not only did Booth not disapprove the use of “victim impact” information by judges for sentencing purposes (id. at p. 507, fn. 10 [96 L.Ed.2d at p. 451]) but it condoned their use as trial evidence in appropriate circumstances, other than the sentencing phase of a capital case. (Ibid.)

Appellant’s reliance upon People v. Levitt (1984) 156 Cal.App.3d 500 [203 Cal.Rptr. 276] is also misplaced. There the trial judge, in imposing an upper and consecutive term, expressly relied upon the effects of the victim’s death upon his wife and unborn child.⁴

In the instant case there was no such express reliance. To the contrary, the trial judge demonstrated exemplary objectivity and balance. She stated, “I read the probation report which speaks in detail of the effect of this tragic incident on the victim’s family, and I think it’s very obvious to this court that there are two families here who have been touched greatly by this, who have been affected greatly by this unfortunate incident, [fí] I have to say that I understand both sides of the family. I don’t think there is anyone sitting here who is feeling that, one, we’re going to get somebody, or two, we’re not going to get anyone. I think we all understand there has been a tremendous tragedy no matter which side of this courtroom you’re sitting on.”

We find no sentencing error.

4. Appellant was denied the effective assistance of counsel when Mr. Jefferson⁵ failed to produce testimony from appellant's brother that he, not appellant, was the actual shooter, and again when Ms. Abramson⁶ declined to move for a new trial on that basis.

Appellant’s contention of ineffective representation by his trial counsel, Mr. Jefferson, is based upon matters outside the record on appeal and which, therefore, we may not consider. (Loving & Evans v. Blick (1949) 33 Cal.2d 603, 613-615 [204 P.2d 23]; Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 631-632 [227 Cal.Rptr. 491]; 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 250, pp. 256-257.) In his petition for habeas corpus appellant makes the identical contention, a contention we consider later in this opinion.

Appellant also contends that other privately retained counsel, Ms. Abramson, ineffectively represented him at the sentencing hearing by failing to make a motion for new trial.

Appellant does not claim that Ms. Abramson, who obtained four continuances, inadequately investigated possible grounds for such a motion. Rather, he states “[f]or reasons not completely clear from the record, Ms. Abramson declined to make a new trial motion. . . .” But as our Supreme Court has observed ” ’In some cases . . . the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged. In such circumstances, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal.’ ” (People v. Farmer (1989) 47 Cal.3d 888, 916 [254 Cal.Rptr. 508, 765 P.2d 940], quoting People v. Pope (1979) 23 Cal.3d 412, 426 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].)

In fact Ms. Abramson did tell the trial court why she had decided not to make a new trial motion. She stated, “I don’t feel the law is such that a motion for new trial based on incompetency of counsel would lie.” Of course, counsel has no duty “to make motions which simply clutter up the record with no benefit to his individual client.” (In re Lower (1979) 100 Cal.App.3d 144, 149, fn. 3 [161 Cal.Rptr. 24].)

Instead Ms. Abramson, in August 1988, filed with the trial court a petition for habeas corpus. The petition was denied.

We find appellant’s contention without merit.

5. The trial court was under a sua sponte duty to order either a new trial or further factual hearings once it learned of Xavier’s confession.

Appellant argues that when Ms. Abramson informed the court that appellant’s brother, Xavier Sanders, had confessed to shooting the victim, the court on its own motion should have ordered a new trial.⁷ Penal Code section 1181 does not confer such authority upon the trial court. It provides that “[w]hen a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial. . . .” Thus, appellant not having made a motion for new trial, the court was without authority to grant one. (People v. Rothrock (1936) 8 Cal.2d 21, 24 [63 P.2d 807]; People v. Lewis (1977) 75 Cal.App.3d 513, 520 [142 Cal.Rptr. 218]; People v. Thompson (1970) 10 Cal.App.3d 129, 135 [88 Cal.Rptr. 753].)

Alternatively, appellant urges that the trial court “at the very least [should have] order[ed] an evidentiary hearing in support of a sua sponte new trial motion.” But holding an evidentiary hearing would not have supplied authority absent before the hearing. No purpose would have been served by such a hearing, and appellant fails to cite any authority in support of it. Moreover, the trial court having no reason to doubt that appellant was being competently represented by experienced counsel, Ms. Abramson, it would have been officious and inappropriate for the court to have abandoned its impartial function in favor of an adversary one.

We find no error.

The Habeas Corpus Proceeding

In his habeas corpus petition appellant summarizes his denial-of-effective-assistance-of-trial-counsel claim as follows: “Prior to commencement of Petitioner’s second trial[⁸] on the murder charge for which he is now incarcerated, his trial counsel, Phillip Jefferson, was repeatedly told by Petitioner’s mother, Regina Sanders, and by Petitioner himself, that Petitioner’s brother, Xavier Sanders, not Petitioner, fired the shot that resulted in the death of the victim. Mr. Jefferson also knew or should have known that contained in the police reports in his possession were early statements from some of the eyewitnesses identifying Xavier Sanders, by his nickname ‘Zuba,’ as the shooter.

“Mr. Jefferson failed to investigate or exploit the issue of Xavier’s guilt, refused to interview Xavier, and refused to call Xavier to testify at Petitioner’s trial even though he was told by Petitioner’s mother that Xavier was willing to testify truthfully to his own culpability.

“Xavier Sanders at all times before and during Petitioner’s trial was ready, willing and able to testify that he was the perpetrator of the acts resulting in the death of the victim.

“Petitioner contends that counsel’s failings herein were not for any strategic or tactical reasons, but were because of inadvertance or ineffectiveness. These actions individually and cumulatively resulted in withdrawing a potentially meritorious defense that went to the very heart of the prosecution’s case and prejudiced Petitioner in that it is reasonably probable that a more favorable result would have occurred but for counsel’s failings.”

After consolidating appellant’s appeal and habeas corpus petition we issued an order of reference to the Los Angeles County Superior Court for the purpose of taking evidence and making findings of fact relative to appellant’s allegations of counsel incompetency. The reference hearing was assigned to Superior Court Judge Madge S. Watai. Judge Watai had presided over the second trial and thereafter had received, considered, and ruled upon appellant’s petition for writ of habeas corpus and/or coram nobis. She appointed Attorney Rowan Klein to represent appellant at the evidentiary hearing. At appellant’s request Judge Watai also appointed an investigator and an expert witness, Attorney Paul Fitzgerald, to assist Mr. Klein.

The reference hearing was held on October 27, 1989. Six witnesses testified: Xavier Sanders, who was represented by counsel; Mark Bledstein, appellant’s attorney at the first trial; Leslie Abramson, appellant’s attorney at the sentencing hearing; Regina Sanders, appellant’s mother; Edward J. Sanchez, appellant’s investigator; and Paul Fitzgerald, an attorney and expert witness.

Xavier Sanders testified that he, appellant, and Kelvin Sanders drove his sister’s BMW to the Gregory home and that he took the rifle out of the car trunk. When asked questions about what he then did he refused to answer, asserting his privilege against self-incrimination.

Mark Bledstein testified that before the first trial Xavier Sanders told him that he had fired the rifle which killed Norman Gregory.

As Judge Watai summarized it, Leslie Abramson testified:

“Attorney Leslie Abramson was retained by the Sanders family to represent Petitioner in his quest for a new trial.

“Testified that file received from attorney Philip Jefferson consisted of preliminary hearing transcript and police reports only. There were no investigator’s report or notes.'

“That in response to her inquiry, Philip Jefferson stated that he did not need transcript from first trial because he could use the police reports to impeach the witnesses.

“In response to her inquiry, Mr. Jefferson stated that he was aware that Xavier Sanders said that he shot Norman Gregory, but that he did not use Xavier because he felt that he could prove that Xavier was the shooter by using the police reports containing statements of the witnesses.

“That he, Jefferson, felt that he was representing the family.

“That she, Leslie Abramson, witnessed Xavier Sanders sign and acknowledge his declaration attached to the Petition for Writ of Habeas Corpus.”

Appellant’s mother, Regina Sanders, testified that Mr. Jefferson refused to speak to Xavier Sanders and when Xavier appeared at the trial courtroom told him to leave.

Edward Sanchez authenticated two exhibits, a tape of a recorded interview of Xavier Sanders by Rowan Klein, and the transcript of that recording.

Paul Fitzgerald, as described by Judge Watai, testified.

“That Philip Jefferson should have filed a formal discovery motion;

“That Jefferson should have obtained a transcript of the first trial for impeachment purposes and for evidentiary information;

“That Jefferson should have hired a private investigator to interview witnesses and identify witnesses;

“That he should have had an expert on ballistics, expert on eyewitness identification and a forensic pathologist;

“That he should not have used defense of ‘shot from inside the house’ because it turned out to be not a viable defense when prosecution rebutted with an expert;

“That Jefferson should have used defense of mistaken identification;

“That Xavier Sanders should have been called to testify and upon his exercise of his right against self-incrimination, his statements to others would be admissible as a declaration against penal interest;

“That in his opinion, there is a likelihood that a result more favorable to Sheldon would have followed if above action had occurred.”

Standard of review: denial of effective assistance of counsel

A claim of denial of effective assistance of counsel has two components. “First, [appellant] must show that counsel’s performance was deficient; specifically, he must establish that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. Second, he must establish prejudice. He must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome [citations]. Defendant has the burden of proving an ineffective assistance claim by a preponderance of the evidence [citation].” (People v. Plager (1987) 196 Cal.App.3d 1537, 1542-1543 [242 Cal.Rptr. 624].)

Counsel, to be effective, must investigate all factual and legal defenses. If counsel’s failure to do so causes the withdrawal of a potentially meritorious defense, a defendant has been denied effective assistance of counsel. (People v. Pope (1979) 23 Cal.3d 412, 424-425 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].)

But in reviewing defense counsel’s trial tactics courts must be cautious. “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 (1984) 466 U.S. 668, 689 [80 L.Ed.2d 674, 694, 104 S.Ct. 2052].)

Standard of review: referee's findings and conclusions

Our standards in reviewing the findings of a reference hearing referee are settled. “A referee’s legal conclusions are subject to independent review. [Citation.] As to findings of fact, they ‘are, of course, not binding on this court, and we may reach a different conclusion on an independent examination of the evidence produced at the hearing [s]he conducts even where the evidence is conflicting. [Citation.] However, where the findings are supported by “ample, credible evidence” [citation] or “substantial evidence” [citation] they are entitled to great weight [citations] because of the referee’s opportunity to observe the demeanor of the witnesses and weigh their statements in connection with their manner on the stand . . . .’ [Citations.] Finally, a referee’s resolution of mixed law-fact questions is generally subject to independent review as predominantly questions of law—especially so when constitutional rights are implicated. [Citation.] Such questions include the ultimate issue, whether assistance was effective, and its components, whether counsel’s performance was inadequate and whether such inadequacy prejudiced the defense. [Citation.]” (People v. Ledesma (1987) 43 Cal.3d 171, 219 [233 Cal.Rptr. 404, 729 P.2d 839].)

Discussion

We have read the reference hearing transcript, considered the exhibits, and of course, studied the record on appeal with its 1422 pages of transcript, and conclude that the findings of the reference hearing referee are supported by substantial, credible evidence. We adopt them:

“Findings

“1. Court finds that the incompetency of counsel allegations are speculative in that the evidentiary hearing did not produce tangible evidence that:

“a. Critical impeachment was omitted due to lack of trial transcript;

“b. Critical evidence was not discovered because of lack of an investigator;

“c. Witnesses were called to testify without first being interviewed;

“d. There were grounds to attack the warrants;

“e. That the prosecution withheld evidence because no formal discovery filed;

“f. That lack of photographs in file was prejudicial to Petitioner;

“g. That the lack of experts was detrimental to the Petitioner.

“2. Court further finds that Xavier Sanders, if called, would have exercised his right against self-incrimination and would have been declared unavailable.

“Further Petitioner’s argument that Xavier’s statement would be admissible as a declaration against penal interest is not necessarily meritorious. His statement that Sheldon and Kelvin was [s/c] with him at the Gregory residence along with other evidence would implicate Petitioner as a principal in the crime and negate his alibi defense. His declaration that he shot at the car and then shot in the air would not be against his penal interest. (As in the case of People vs. Chapman, 50 Cal.App.3d 872, there is also a question of trustworthiness to be considered.

“3. Court further finds, upon an independent review of the records that attorney Philip Jefferson pursued alternative defenses but they were not incompatible defenses:

“a. That defendant was mistakenly identified and substantiated this with an alibi witness.

“b. Or that Norman was shot by someone inside the house based on the nature of the wound.

“4. Court further finds that an expert on eye witness identification would not have been very effective in view of identification by family members.

“5. Court finds further upon review of the transcripts that Philip Jefferson cross-examined prosecution witnesses extensively and effectively with a clear direction of his defenses.

“6. Court does not find that there is a likelihood that a result more favorable to Petitioner would have followed.”

Response to Dissent

The dissent thinks “it important to retell the story in a somewhat different fashion.”

We think it more important not to misstate or distort the record, sins repeatedly committed by the dissent. For example, it states trial counsel Philip Jefferson “had left the state,” an assertion without basis in the record. It describes Mr. Jefferson’s state bar status, an irrelevancy,⁹ again without evidentiary support in the record. It omits the inculpatory colloquy between the victim and his murderer. It creates the impression that eyewitness Darryl Anderson, when first interviewed by the police, said the shooter was “Zuba” (i.e., Xavier), when in fact he identified the shooter as “Kake,” appellant. It states as a fact that the person who best knew both appellant and his brother Xavier, Raynetta Sanders, “originally told the police the shooter was Xavier not the petitioner.” This is a “fact” which the dissent creates in violation of all appellate standards of review. Ms. Sanders testified that appellant was the shooter and that she told the Compton police officer that appellant was the shooter. The dissent utterly censors her testimony and instead transforms into “fact” the contrary testimony of an officer who chased the crying and hysterical Ms. Sanders for a block, immediately after she saw her brother shot and dying from a four-inch hole in his head, who interviewed her for three to five minutes, claimed to have taken but destroyed handwritten notes, and to have obtained from Ms. Sanders the full, accurate license number of the BMW getaway car, although his department’s files contained a computer printout with that license number!

It omits that Ms. Sanders not only positively identified appellant as the shooter but described how he was dressed, down to his white Fila boatmoc shoes. It omits that she was equally detailed in describing Xavier, who remained in the BMW on the passenger side wearing a beige button-down-the-front shirt.

The dissent also omits from its retelling Terrell Gregory’s testimony that about 25 minutes before the shooting he overheard one of Kelvin’s phone conversations to Raynetta and heard appellant, also on the phone with Kelvin, say: “I’ll get you back. I’m going to get revenge. It’s not over.” And he then heard Kelvin yell: “Kake [appellant] get off the phone.”

It includes that eyewitness William Thomas told the police the shooter was “Kake” (appellant) but omits his corroborative description of appellant, 5 feet 7 to 8 inches tall and weighing between 100-125 pounds (Xavier, as described by Ms. Sanders, was 6 feet 2 inches tall and weighed about 180 pounds). It includes that William Thomas later told the police “he was not sure” but omits his testimony that, in fact, he was sure and only told the police he wasn’t because he didn’t want to get involved. It includes the half-truth that expert witness Mr. Fitzgerald at first testified there was no plausible explanation for not offering “Xavier’s confession” and omits the full truth that he then testified it “would be a reasonable tactical decision not to present that evidence” if the defense attorney had determined it was untrue.

Failure to Secure Transcript of First Trial

One of the legs supporting the dissent’s conclusion of ineffective assistance of trial counsel is that “Jefferson (trial counsel) failed to secure a transcript of the first trial.”

The impression given by the wording of this claim is that the first trial transcript was just sitting around someplace, like on the desk of Mr. Bled-stein, appellant’s lawyer at the first trial, and that Mr. Jefferson was too lazy, or too indifferent, or too incompetent to even ask for it. Of course, as the dissent fails to state, Mr. Jefferson didn’t “secure a transcript of the first trial” because there was no transcript to secure. It hadn’t been prepared and didn’t exist. Mr. Jefferson would have had to privately order one from the court reporter, or request the trial judge to do so, which request may well have been denied.¹⁰

The dissent totally ignores even the existence of this decision, whether or not to privately order the transcript of the first trial. Known to every experienced criminal defense attorney, if not to the dissent, are the delicate advantages and disadvantages of such an order. First, there is the expense, hundreds if not thousands of dollars, depending upon its length, borne by the client, or in this case by his family. Second, there is delay. Reporters spend their days in court, reporting ongoing trials, and have only evenings and weekends to dictate for transcription already concluded trials. All reporters are backlogged. Months of delay are common. Third, ordering a transcript for the defense means a copy will be available for the prosecution. Fourth, such an order risks alerting and arousing the prosecution from what might otherwise be bureaucratic “business-as-usual” case handling. Fifth, an assessment of need. Here there was little or none. The first trial was brief, lasting only three or four days, and appellant, other family members, and Mr. Bledstein were all percipient observers available to brief Mr. Jefferson. Additionally, Mr. Jefferson had all the police reports and witness statements plus the transcript of the preliminary hearing.

The record is bereft of reason to question Mr. Jefferson’s decision not to order a transcript of the first trial.

The dissent, knowing it must identify prejudice, not merely dereliction, strains to find some. First it looks to trial inconsistency and states: “Thus he (Mr. Jefferson) could not take advantage of inconsistent statements between the testimony of the five eyewitnesses at the first trial and their testimony at the second trial.”

What inconsistent statements?

Since a transcript of the first trial was later prepared and introduced at the evidentiary hearing, (as was, of course, one of the second trial) and studied by appellant’s third attorney, privately retained criminal defense specialist, Ms. Leslie Abramson, fourth attorney, criminal defense specialist Mr. Rowan Klein, and fifth attorney, defense witness at the evidentiary hearing, Mr. Paul Fitzgerald, it is notable that the dissent fails to specify a single such inconsistent statement.

Second, still straining to find prejudice, the dissent squints at physical evidence. It states: “Nor did the case file reflect Jefferson informed himself about physical evidence used in the first trial.”

One might more sensibly ask why the 52-page dissent fails to reflect the basis for its assumption that case files of criminal defense attorneys memorialize such information. Or why the dissent fails to reflect what this physical evidence was. Or how not informing himself about it, assuming he did not, had any bearing on the second trial.

This balloon of dissent speculation is punctured by reality. The only physical evidence at the first trial was a set of photographs and an autopsy report. The autopsy report was also an exhibit at the second trial and, as demonstrated by the 33 pages of cross- and recross-examination of its author, Mr. Jefferson was minutely familiar with it. As to the photographs, it would take but a moment to look at them. And as the 1,422-page trial record repeatedly indicates, no prosecution exhibit was admitted, let alone shown to a witness, without Mr. Jefferson’s prior scrutiny.

Third, in its final effort at discovering prejudice, the dissent states: “A transcript would also have informed Jefferson about the court’s prior rulings, instructions given and the prosecution’s theory of the case through opening and closing statements.”

Of course, the dissent fails to specify a single “prior ruling” that, had Mr. Jefferson known of, would have been helpful. Nor a single instruction. Nor a single theory of the case.

The transparent triviality of its argument, more befitting a first-year law school student aflush with issue spotting passion, is laid bare by the fact that Judge LaFont presided over the first trial and Judge Watai over the second. Not only are trial rulings without binding effect but when made by a different trial judge fail to provide even predictive assistance. The same, of course, is true of jury instructions. As to becoming informed “of the prosecution’s theory of the case”—just what is the dissent talking about? Was there a question, an alternative, a doubt, a mystery about “the prosecution theory?” What was the prosecution going to do, claim that appellant poisoned the deceased?

If the dissent has discovered some other possible “prosecution theory of the case,” it has failed to share its discovery with us.

Failure to Hire a Private Investigator, Ballistics Expert, etc.

The dissent mentions, although without much enthusiasm, that “Jefferson allegedly failed to hire a private investigator to interview witnesses and gather evidence from the scene; failed to hire a ballistic expert; and, failed to familiarize himself with crime scene photos and other physical evidence.”

This argument may be expeditiously and mercifully put to rest.

First, as the dissent concedes, the record simply fails to establish that Jefferson failed to hire a private investigator or ballistics expert. (As the dissent puts it, “Jefferson’s absence made it impossible to discover what he actually did or did not do.”)

Second, even if no such experts were hired (and, of course, there is no presumptive duty to hire them), the dissent fails to establish prejudice.

Third, the record affirmatively demonstrates that Mr. Jefferson had interviewed his witnesses (e.g., this cross-examination of defense witness Calvin Sanders: “Q. Mr. Sanders, before you took the stand yesterday, who did you talk to about your testimony in this case? [fl] A. Mr. Jefferson and my family. [fl] Q. Okay. You went over pretty much what you would say with Mr. Jefferson; is that correct? [fl] A. Yes, sir.”), had investigated prosecution witnesses (e.g., David Gregory’s possible bias against appellant as elicited by this cross-examination of him: “Q. When he [appellant] was at your niece’s birthday party, did you threaten him and make him leave the niece’s birthday party; is that correct? []f] A. Yes.”), and had inspected the scene (among the 24 trial exhibits presented by Mr. Jefferson many were photographs and/or diagrams of the scene).

Conflict of Interest

The dissent concludes that Mr. Jefferson was involved in a conflict of interest. The first basis for its conclusion is a snippet from a brief telephone conversation between Mr. Jefferson and appellant’s newly hired lawyer, Ms. Abramson, who was then engaged in trying to prove Mr. Jefferson’s representation of appellant was inadequate and entitled appellant to a new trial. According to Ms. Abramson’s recollection (the dissent fails to mention whether her files reflect any contemporaneous note-taking) Mr. Jefferson said he was representing “the family.” The other basis, the dissent states, is “Xavier’s statement he was shooed away from the courthouse” by Mr. Jefferson.

The dissent evades, apparently intentionally, the possibility Mr. Jefferson might have had a legitimate reason for shooing Xavier away from the courthouse. Intentionally evades because the dissent refers to the prosecution’s question about Xavier’s “confession” being perjurious, a question asked of defense expert Mr. Fitzgerald, but instead of then giving Mr. Fitzgerald’s answer to that question it instead summarizes an earlier answer, given before the subject of perjury was broached. Thus, reading from the dissent one is utterly misled into believing the matter was then, and is now, closed. This is the distorted dissent version: “The prosecution speculated the reason Mr. Jefferson excluded Xavier’s testimony was because it was perjurious, or in the alternative, because Mr. Jefferson anticipated Xavier would take the Fifth Amendment in the second trial as well. The court-appointed criminal law expert, Mr. Fitzgerald, testified there was no plausible explanation whatever not to offer as evidence the best defense available to one’s client—someone else’s confession to the shooting.”

In fact, the matter was not and is not closed. This is the prosecutor’s question and this is Mr. Fitzgerald’s answer to that question:

“Q. Along those lines, what if he determined that wasn’t true about Xavier and that he was dealing with perjury?

“A. Then it would be—that would be a reasonable tactical decision not to present that evidence, and I think the lawyer is duty bound not to present it if he determines that there is a very reasonable likelihood this is perjured testimony.”

Having taken its evasive tack, the dissent fails to consider what reasons Mr. Jefferson might have had for telling Xavier to leave the courthouse. For example, if Xavier remained for jurors to casually observe or for the prosecution, noticing him present, to formally identify for the jury, much damage to appellant’s “mistaken identity” defense might have resulted. Although witnesses, such as Ms. Sanders, used words to contrast appellant’s height of 5’9” with Xavier’s 6’2”, and appellant’s slight 130 pounds with Xavier’s sturdy 180 pounds, the impact of having appellant and Xavier stand before the jury, side by side, could have been devastating.

This consideration, just one of many, may have prompted Mr. Jefferson’s conduct and is ignored by the dissent.

We postpone for later discussion a consideration of why Mr. Jefferson may have chosen not to call Xavier as a witness.

Concerning the other basis, the proposition borders on the absurd. Mr. Jefferson, who, unlike appellant’s first attorney, Mr. Bledstein, never represented Xavier, never received funds from Xavier, never was willing to interview Xavier, and didn’t permit Xavier to observe his brother’s trial was at the same time supposedly representing Xavier’s interest in derogation of appellant’s interest.

The contradictions of this dissent proposition do not end there. Xavier is portrayed by the dissent as always willing and eager to tell the truth and take the consequences. This avowed posture is absolutely congruent with the posture of the rest of the family. The family fired Mr. Bledstein because he didn’t call Xavier and Kelvin Sanders as witnesses at the first trial. The family hired Mr. Jefferson so that Xavier and Kelvin would be called as witnesses at the second trial. The family told Mr. Jefferson that Xavier, not appellant, was the shooter and that they wanted the truth brought out at the trial.

There simply was nothing to create a conflict about.

Finally, again omitted by the dissent, in the words of appellant’s expert criminal defense witness, Mr. Fitzgerald, on cross-examination:

“Q. And you are not aware of any pressure by the people who retained Mr. Jefferson to exonerate Xavier at the expense of Sheldon or do anything?

“A. [Fitzgerald] No. I think I was aware of some pressure to the contrary, or at least I am unclear. But at least certainly there was no pressure to withhold testimony about Xavier.

“Q. To the detriment of Sheldon?

“A. [Fitzgerald] No, right. You’re quite correct.”

Failure to interview Xavier, obtain a statement from him, and call him as a witness.

The related alleged failings of Mr. Jefferson which the dissent finds “egregious” are his failure to interview Xavier, to obtain a statement from him, and to call him as a witness.

The dissent argues that without interviewing Xavier, Mr. Jefferson’s decision not to call him as a witness could not have been an informed one.

We disagree. Mr. Jefferson, without interviewing Xavier, knew that Xavier claimed to have done the shooting. In Mrs. Sanders’s declaration she stated, “Numerous times before the second trial, I told Mr. Jefferson the truth about Xavier’s involvement and that we wanted him to put Xavier on the stand.” Further, Ms. Abramson (appellant’s third lawyer) testified that she “asked him [Mr. Jefferson] if he knew that Xavier Sanders was the shooter. He said yes, he knew that. He had been told, that is what he said.”

Similarly without merit is the belabored point that Mr. Jefferson should have attempted to obtain a written statement from Xavier or, failing that, searched for witnesses who could testify to his declarations against penal interest (i.e., that he had told them he was the shooter).

There are several observations to make. First, Mr. Jefferson was not the first of appellant’s lawyers not to obtain (or at least to attempt to use) a written statement from Xavier. Mr. Bledstein, a criminal defense specialist for 15 years, the lawyer who defended appellant at his first trial, did not offer any such statement after Xavier asserted his privilege against self-incrimination and became unavailable. Nor did Mr. Bledstein call a witness to testify to Xavier’s declaration against interest. This despite the fact that he had available Xavier’s mother and father both of whom, according to Mrs. Sanders’s declaration, could have so testified.

That Mr. Bledstein also chose not to introduce Xavier’s extrajudicial statements suggests neither coincidence nor dereliction but purpose.

Second, there is little doubt Mr. Jefferson could have, and knew he could have, obtained a statement from Xavier. What such a statement might have said and what its value might have been is another matter. To illustrate this dubious matter we briefly compare the three statements Xavier did make: his June 21, 1988, declaration prepared by appellant’s third attorney, Ms. Abramson (No. 1 statement), the transcription of his June 30, 1989, interview by appellant’s fourth attorney, Mr. Rowan Klein (No. 2 statement), and the transcript of his October 27, 1989, abortive testimony at the evidentiary hearing (No. 3 statement).

No. 1 statement: “On my own I had decided to just go to the Gregory home and break the windows out of one of their cars. I intended to do it with a bumper jack. . . . [fl] I opened the trunk to get the bumper jack, saw the gun and decided to shoot out the windows on one of the Gregory cars instead.”

No. 2 statement: “Then I got in the car and then him [appellant] and Ke[l]vin jumped in the car.

“Q. And before you got in the car, was there any discussion about doing something?

“A. No. There wasn’t none. I had a gun in the car, though, ready. . . .

“Q. Was there any discussion about calling the police?

“A. On the way there I said I was gonna call the cops and police and have them come out and arrest that boy.

“Q. And did you stop and call before you went over there?

“A. No.

“Q. Did anybody say to stop and call as you were driving over there?

“A. Ke[l]vin and Shelly [appellant] said T thought you was gonna call the police’ and I said no, I’m was gonna [sz'c] shoot their car window out.”

No. 3 statement:

“Q. Why did you go to the Gregory home?

Why did you drive to the Gregory home?

“A. Just drove there.

“Q. What’s the reason for it?

“A. It’s just—there was no reason. It’s just—

“Q. Were you mad?

“A. No, I wasn’t mad.

“Q. Did you go there with the intent to use your rifle?

“A. No, I didn’t.

“Q. Did you go there to beat somebody up?

“A. No, I didn’t.

“Q. Weren’t you mad that your brother had been hit by one of the Gregory’s?

“A. No, I wasn’t.

“Q. Were you pretty calm?

“A. Yes.”

Putting aside the irreconcilable inconsistencies between these three statements, two of them under oath, and assuming that some such statement might have been admitted at appellant’s trial or alternatively and even more doubtfully, that if called Xavier would actually have testified at appellant’s second trial (although he refused to do so at the first trial and again at the evidentiary hearing, after there giving only token testimony)—we now consider some of the factors which may have affected Mr. Jefferson’s decision to neither call Xavier as a witness nor introduce his extrajudicial statements.

The essence of Xavier’s statements is this: he drove to the victim’s house with appellant and Kelvin; he got out of the car but appellant and Kelvin remained inside; he opened the car trunk and removed a rifle; he walked towards the Gregory driveway; he fired one shot hitting the window of a car parked in that driveway; he fired a second shot up in the air towards the doorway; he returned to the car and drove the three of them away.

The fundamental question is: would any competent attorney have sought admittance of Xavier’s “statement”? If the answer is yes and “there simply could be no satisfactory explanation” (People v. Farmer, supra, 47 Cal.3d 888, 916) for a failure to do so, and prejudice is shown, then appellant has been denied effective assistance of counsel. But it is appellant’s burden, by a preponderance of the evidence (People v. Plager, supra, 196 Cal.App.3d 1537, 1543), to demonstrate this fact.

Conversely, if there could be a satisfactory explanation for not seeking admittance of Xavier’s statement, then appellant has not met his burden of proof and his petition should be denied.

Thus, the only way to answer this fundamental question is to consider whether or not there is a “satisfactory explanation” for not seeking admittance of Xavier’s “statement.” We now consider such possible explanations.

Abandonment of Alibi

Xavier’s account pinned appellant to the scene at the time of the murder and obliterated appellant’s alibi. Mr. Jefferson would have had to abandon a complete alibi defense supported by three witnesses: Michael Henderson, Calvin Sanders, and Calvin Sanders, Jr.

Abandonment of Inside-shot Theory

Xavier’s account eliminated the inside-shot theory, another complete defense. This defense was based upon the victim facing the shooter at the time of the fatal shot (a fact testified to by every percipient prosecution witness) but the victim being shot in back of the neck. It was further supported by the testimony of some witnesses that three shots were fired but only two rifle casings recovered.

Recently Manufactured Evidence Impeachment

The prosecutor would have called appellant’s first trial alibi witnesses, Mr. Henderson, Mr. Sanders (appellant’s father), and Kelvin Sanders. If in the teeth of Xavier’s story they maintained that appellant was with them and not at the murder scene, then Xavier’s confession is destroyed. So is appellant’s fate. If, on the other hand, they retract their alibi, surely being forced to admit it was unsuccessful at the first trial, they inevitably expose the willingness of appellant’s family to commit perjury for him.

The unsuccessfulness of the alibi at the first trial, in combination with the inevitable revelation that Xavier did not choose to testify at the first trial, creates the damning odor of recently manufactured evidence.

Generation of Absolute-Identification Evidence

Xavier being absent from the second trial, the eyewitness merely identified appellant as the shooter. With Xavier present and testifying he was the shooter, there would have been a drum beat parade with every eyewitness positively identifying appellant and positively eliminating Xavier as the shooter. All the initial semantic confusion of “Zuba” and “Kake,” significant impeachment at the second trial, would disappear like a pulf of smoke in a tornado.

The Dogs That Did Not Bark

To offer Xavier’s “I was with appellant and Kelvin when / did the shooting” version is to irresistibly cause jurors to ask themselves: why isn’t Kelvin testifying to this? Why didn’t Kelvin testify to this at the first trial? And, jury instructions notwithstanding, why isn’t appellant testifying to his own innocence if Xavier is telling the truth?

Xavier’s “Confession” Is Not Credible Because It Is Not Inculpatory

If you know your confession can convict you it is, for that reason, against your penal interest and credible. If you know your confession cannot convict you it is, for that reason, not against your penal interest and not credible.

For example, if on January 1, 1990, Charlie Fessup was in New York with a bishop, a rabbi, and a minister, all televised in an all-day prayer session, his confession to a January 1, 1990, noontime stabbing in Los Angeles is not against his penal interest and is not credible. Charlie Fessup knows his confession cannot convict him because contrary evidence refutes it.

For the same reason, Xavier’s “confession” was not against his penal interest and was not credible because he knew—and the jury would be so informed—that it could never result in his conviction. He had available five eyewitnesses who had twice testified that he was innocent and that appellant was guilty. Further, he had a trump card: retraction. “I was only trying to help my little brother”—who could fail to understand and believe him?

Thus, another’s confession, always triumphant on Perry Mason, had bleak prospects for appellant.

Xavier Guilty and Appellant Guilty

Not only would Xavier’s version destroy all of appellant’s other defenses, but even if believed it might still result in appellant’s conviction.

If the jury believed that Xavier fired the fatal shot but that appellant abetted him to do so, then appellant will be convicted.

There is substantial evidence that could constitute such abetting: appellant and the victim did not get along; the victim punched appellant without provocation; appellant tried to run his car over the victim; when he was unsuccessful appellant said, “We’ll be back. We’re going to get you motherfuckers”; appellant, over the phone, about 25 minutes before the shooting said, “I’ll get you back. I’m going to get revenge. It’s not over”; appellant promptly returned to the scene with his two brothers; the victim was shot to death. (Italics added.)

Xavier’s Confession Is Inconsistent With the Evidence

Xavier, in his various statements, asserted he got out of the car, walked to the rear, opened the trunk, and removed the rifle.

Every witness who saw the driver exit testified he did so carrying a gun. No witness testified the driver went to the trunk, etc.

Xavier stated he walked towards the driveway, shot a car window, shot in the general direction of the house, and left. According to Xavier’s version he was mute. He never even saw let alone talked to anyone in the Gregory doorway.

Multiple witnesses described the driver as walking towards the driveway and saying such things as: “Come out now motherfuckers. Come out now.” Or: “Where are all you guys now. I’ll kill you motherfuckers.” (Italics added.)

A Duty Not to Introduce Perjured Evidence

Mr. Jefferson, who had the benefit of confidentially interviewing appellant, and certainly of talking to Kelvin Sanders, not only decided to call neither as a witness but may have determined that Xavier’s account was false. Having so determined, as Mr. Fitzgerald testified, he was “duty bound not to present it.”

As the United States Supreme Court has recently stated, “the right to counsel includes no right to have a lawyer who will cooperate with planned perjury. A lawyer who would so cooperate would be at risk of prosecution for suborning perjury. . . .” (Nix v. Whiteside (1986) 475 U.S. 157, 173 [89 L.Ed.2d 123, 139, 106 S.Ct. 988].)

Considering these nine explanations, we conclude that appellant has not met his burden of proof.

More importantly, after extraordinary care to hear and weigh every error claimed by petitioner, we are satisfied that justice has been done.

Disposition

The petition is denied and the judgment is affirmed.

Lillie, P. J., concurred.

1 Unless otherwise noted all statutory references are to the Penal Code.

2 Norman Gregory did not testify. He was shot and killed by the second gunshot.

3 The court also gave CALJIC No. 17.31 (4th ed. 1979) which instructed the jury to disregard inapplicable instructions.

4 Even in those unusual circumstances the error was held to be harmless. (Id. at pp. 516-517.)

5 Mr. Philip Jefferson represented appellant at trial.

6 Ms. Leslie H. Abramson represented appellant at his sentence hearing.

7 We need not comment upon the precipitous prospect of judicial action based only upon such hearsay representations.

8 The jury in appellant’s first trial was unable to reach a verdict. Appellant was represented by Attorney Mark Bledstein.

9 The claimed relevancy is the need to prove Mr. Jefferson’s unavailability at the October 27, 1989, habeas corpus evidentiary hearing. On page 39 of that hearing’s transcript the parties stipulated to Mr. Jefferson’s unavailability, a fact ignored by the dissent.

10 An indigent defendant is presumptively entitled to a free trial transcript (People v. Hosner (1975) 15 Cal.3d 60 [123 Cal.Rptr. 381, 538 P.2d 1141]). Appellant, always represented by private counsel, makes no indigency claim.