People v. Knowles CA2/5 ( 2014 )

Filed 1/22/14 P. v. Knowles CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B243612
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA072072)
v.
ANTHONY GEORGE KNOWLES,
Defendant and Appellant.
APPEAL from orders of the Superior Court of the County of Los Angeles, Janice
Claire Croft and Leslie E. Brown, Judges. Affirmed.
Jonathan P. Milberg, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, James William Bilderback
II, Supervising Deputy Attorney General, Alene M. Games, Deputy Attorney General, for
Plaintiff and Respondent.
INTRODUCTION
A jury found defendant and appellant Anthony Knowles (defendant) guilty of,
inter alia, second degree robbery and false imprisonment, and the trial court sentenced
him to 103 years, four months, to life in prison. On appeal, defendant contends that the
trial court abused its discretion when it relieved his appointed counsel of choice and
instead appointed counsel from an indigent criminal defense panel. Defendant also
contends that he received ineffective assistance of counsel because his trial counsel, after
successfully excluding gang evidence, elicited answers from a witness during
impeachment that “opened the door” to the prosecution’s introduction of prejudicial gang
evidence.
We hold that because the record does not affirmatively show that the trial court
abused its discretion when it entered the order relieving defendant’s appointed counsel of
choice, we affirm that order. We further hold that counsel’s apparent tactical choice to
impeach a key prosecution witness with inconsistent statements did not constitute
ineffective assistance of counsel. We therefore affirm the judgment of conviction.
FACTUAL SUMMARY1
Stephen Norris (Norris), defendant’s former codefendant, testified at trial that
defendant and fellow Crips gang member, Tony Martin (Martin), planned and executed a
late-night armed robbery of a Rite-Aid store while Norris served as the getaway driver.
Store surveillance video and three female store employees, who were tied up during the
robbery, confirmed that two armed robbers, one in a brown ski mask and the other in a
1
Because defendant does not challenge on appeal the sufficiency of the evidence in
support of his conviction, and instead raises challenges to a pretrial ruling and a tactical
choice of his counsel during trial, we provide a brief summary of the facts adduced at
trial to provide context for the ensuing analysis of the two issues raised on appeal.
2
black ski mask, committed the robbery; and defendant’s DNA was found on a brown ski
mask recovered from the abandoned getaway car.
PROCEDURAL BACKGROUND
In an information, the Los Angeles County District Attorney charged defendant in
counts 1 through 3 with second degree robbery in violation of Penal Code section 2112;
in count 4 with second degree commercial burglary in violation of section 459; in counts
7, 8, and 10 with false imprisonment by violence in violation of section 236; and in count
9 with possession of a firearm by a felon in violation of (former section 12021(a)(1),
repealed by Stats. 2012, ch. 711, § 4, now § 29800, operative Jan. 1, 2012). The District
Attorney alleged that, as to counts 1, 2, and 3, defendant personally used a firearm within
the meaning of section 12022.53, subdivision (b). The District Attorney further alleged
that, as to counts 4, 8, and 10, defendant personally used a firearm within the meaning of
section 1203.06, subdivision (a)(1) and section 12022, subdivision (a)(1). And the
District Attorney alleged that, as to counts 1, 2, 3, 4, 7, 8, 9, and 10, defendant had
suffered four prior convictions of serious or violent felonies within the meaning of
sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i), as
well as two prior convictions of serious felonies within the meaning of section 667,
subdivision (a)(1). Defendant pleaded not guilty and denied the allegations.
Following trial, the jury found defendant guilty on all counts and found the
weapon allegations true. In a subsequent proceeding, the trial court found the prior
conviction allegations true. The trial court sentenced defendant to an aggregate prison
term of 103 years, four months, to life.
2
All further statutory citations are to the Penal Code, unless otherwise indicated.
3
DISCUSSION
A. Order Relieving Appointed Counsel of Defendant’s Choice
1. Background
Defendant’s brother retained a private attorney, Ronald Kaye, to represent
defendant through the preliminary hearing. Following the preliminary hearing, defendant
filed a motion for an order appointing attorney Kaye as trial counsel pursuant to section
987.23 and Harris v. Superior Court (1977) 19 Cal. 3d 786. According to the declaration
of attorney Kaye, defendant was indigent and his family members were no longer able to
hire private counsel for defendant. Attorney Kaye explained that because he had
represented defendant through the preliminary hearing, he had “extensive knowledge” of
the facts of this case, including the police reports, the witness statements, the DNA
analysis, the uncharged cases purportedly showing modus operandi, and the cellular
3
Section 987.2 provides, in pertinent part, “(a) In any case in which a person,
including a person who is a minor, desires but is unable to employ counsel, and in which
counsel is assigned in the superior court to represent the person in a criminal trial,
proceeding, or appeal, the following assigned counsel shall receive a reasonable sum for
compensation and for necessary expenses, the amount of which shall be determined by
the court, to be paid out of the general fund of the county: [¶] . . .[¶] “(d) [T]he court
shall first utilize the services of the public defender to provide criminal defense services
for indigent defendants. In the event that the public defender is unavailable and the
county and the courts have contracted with one or more responsible attorneys or with a
panel of attorneys to provide criminal defense services for indigent defendants, the court
shall utilize the services of the county-contracted attorneys prior to assigning any other
private counsel. Nothing in this subdivision shall be construed to require the appointment
of counsel in any case in which the counsel has a conflict of interest. In the interest of
justice, a court may depart from that portion of the procedure requiring appointment of a
county-contracted attorney after making a finding of good cause and stating the reasons
therefor on the record.”
4
phone analysis. Attorney Kaye also provided a summary of his experience as a criminal
law practitioner, including his experience as a deputy federal public defender. Attorney
Kaye related that defendant had requested him to “remain as counsel of record if at all
possible,” and confirmed that he was willing to accept appointment as defendant’s
counsel if an acceptable rate of compensation could be agreed upon.
At the arraignment hearing on October 8, 2008, the trial court granted defendant’s
motion to appoint attorney Kaye as his trial counsel. At the October 28, 2008, pretrial
conference, however, the trial court, without explanation, relieved attorney Kaye and
appointed “bar panel” attorney Chris Chaney to represent defendant. The reporter’s
transcript for October 28, 2008, proceeding does not reflect the trial court’s discussion
regarding its order or its order relieving attorney Kaye, which order is reflected in the
minute order for that proceeding as follows: “Private counsel relieved this date. Bar
panel [counsel] appointed.” The matter proceeded to trial following which, as noted, the
jury found defendant guilty as charged.
In support of his motion for new trial, defendant attached a declaration of attorney
Kaye that provided the following information concerning his appointment as defendant’s
counsel and his subsequent withdrawal from that representation. “3. After the
preliminary hearing I was advised by [defendant’s] family that they could no longer
afford to retain me to represent him in the Superior Court. Consequently, I made a
decision to move the Superior Court to appoint me as indigent defense counsel, paid by
the Court. The Court in Department H granted that motion on October 8, 20[08]. [¶] 4.
On October 28, 2008, I appeared in Department H for a pretrial status conference. On
October 24, 2008, based on the Court’s October 8, 2008 order appointing me to represent
[defendant], I filed several under seal documents with the Court requesting funds for my
representation, both setting out my proposed billing rate for my representation for a three
strikes case and for hiring experts. At that pretrial status conference the Court advised
me that it had spoken with representatives of the Los Angeles Superior Court in
downtown Los Angeles, and that the policy of the court was that indigent defendants had
to be represented by the Indigent Criminal Defense Panel of the Los Angeles County Bar
5
Association. Consequently, I was ordered by the Court that I could no longer represent
[defendant] as appointed counsel. After receiving this order from the Court, I advised
[defendant] and his family, and did no further legal work on his case.” (Italics added.)
Following a hearing on the new trial motion, the trial court denied the motion, including
that portion of the motion seeking a new trial based on the trial court’s order relieving
attorney Kaye as trial counsel.
2. Analysis
Defendant contends that the trial court abused its discretion when it relieved
attorney Kaye after appointing him and instead appointed counsel from the Los Angeles
County Bar Association’s indigent criminal defense panel. According to defendant,
because the trial court had determined under section 987.2, subdivision (d), that there was
good cause to appoint private attorney Kaye, relieving him based on the policy of the
Superior Court was unreasonable and an abuse of discretion.
“[I]t is the function of the [trial] court, in the exercise of its sound discretion, to
appoint counsel for an indigent defendant. This discretion . . . may not be limited or
narrowed by the defendant’s expression of preference for a particular attorney . . . . The
matter . . . ‘rests, as always, in the sound discretion of the trial court . . . .’ [Citation.]”
(Harris v. Superior Court, supra, 19 Cal.3d at p. 795, 799 [trial court abused its
discretion when considerations in support of appointment “heavily outweighed” contrary
factors, such that “only one conclusion [was] possible”].) Even when a defendant has a
preexisting relationship with an attorney willing to accept appointment, the trial court
need not appoint that attorney when there are sufficient countervailing factors. (People v.
Sapp (2003) 31 Cal. 4th 240, 256.) To establish an abuse of discretion, defendant has the
burden on appeal of showing that the trial court’s decision to relieve attorney Kaye and
replace him with panel counsel was arbitrary, capricious, or patently absurd. “‘The abuse
of discretion standard . . . reflects the trial court’s superior ability to consider and weigh
the myriad factors that are relevant to the decision at hand. A trial court will not be found
to have abused its discretion unless it “exercised its discretion in an arbitrary, capricious,
6
or patently absurd manner that results in a manifest miscarriage of justice.”’ [Citation.]”
(People v. Lancaster (2007) 41 Cal. 4th 50, 71.)
Because the trial court’s order relieving attorney Kaye is presumed correct,
including as to matters on which the record is silent, it is defendant’s burden on appeal to
provide an adequate record that allows us to analyze his abuse of discretion claim. (See
Denham v. Superior Court (1970) 2 Cal. 3d 557, 564 [“[I]t is settled that: ‘A judgment or
order of the lower court is presumed correct. All intendments and presumptions are
indulged to support it on matters as to which the record is silent, and error must be
affirmatively shown. This is not only a general principle of appellate practice but an
ingredient of the constitutional doctrine of reversible error’”]; Maria P. v. Riles (1987) 43
Cal.3d 1281,1295 [It is appellant’s burden to provide an adequate record to assess error].)
Here, there is no reporter’s transcript that reflects the trial court’s decision to
relieve attorney Kaye, and thus no transcript that reflects the trial court’s reasoning.
Therefore we do not know, for example, if counsel discussed his proposed compensation
with the trial court. Because the record is silent as to the trial court’s reasoning, we must
presume that the trial court acted within its discretion in relieving attorney Kaye.
Moreover, even assuming that the after-the-fact declaration of attorney Kaye in
support of the new trial motion is a reliable record of the trial court’s reasoning, the
declaration as to that issue is, at best, conclusory. According to the declaration, the trial
court did not specify the source of any rule or policy or its precise nature. There is
nothing in that declaration to show that the policy upon which the trial court purportedly
relied in relieving attorney Kaye and appointing panel counsel was irrational or arbitrary.
Thus, we must presume that the court policy referenced in the declaration had a rational
basis, such that it was not arbitrary, capricious, or patently absurd for the trial court to
rely on that policy in making its decision to relieve attorney Kaye. Following a rule or
policy would not be arbitrary or irrational. Because the record on appeal does not
affirmatively show an abuse of discretion, we must affirm the order relieving defendant’s
counsel of choice.
7
B. Ineffective Assistance of Counsel
1. Background
Prior to trial, defendant’s trial counsel filed a motion in limine to exclude evidence
of defendant’s gang membership. At the hearing on the motion, defendant’s counsel
explained that he was concerned that codefendant Martin and former codefendant Norris
might testify that the reason they participated in the robbery was because they feared
defendant who had a reputation as a gang member. In response, the prosecutor assured
the trial court that she did not anticipate introducing gang evidence. Defendant’s counsel
accepted the prosecutor’s assurance and received permission from the trial court to make
an Evidence Code section 402 motion prior to Norris’s testimony if necessary to
“determine . . . whether or not [the prosecutor] would be attempting to elicit gang
testimony.”
Prior to Norris’s testimony, the prosecutor, with the trial court’s consent,
admonished Norris, inter alia, “not to make any reference to any gang membership.”
During her direct examination of Norris, the prosecutor did not attempt to elicit any gang
evidence, and Norris did not make any reference to defendant’s gang membership.
During cross-examination, however, defendant’s counsel elicited the following testimony
from Norris: “Q. And that’s when you told us earlier on direct examination that you
hung out at your house for a couple of hours. A. Yes. Q. Did you tell the police that
after you dropped Johnny Cole off, you went back to your house, packed some stuff and
had Tony drop you off at your girlfriend’s house.? A. At first I did, yes. Q. And did
you tell the police officers who was at your house? A. Yes, I did. Q. Did you tell them
that Tony Cole was there? A. Johnny Cole, yes. Q. Excuse me, okay. Johnny Cole.
And did you tell them that Mr. Martin was there? A. Yes. Q. Did you tell them that
Danny Johnson was there? A. Yes. Q. And they ask you if that was all the people that
were there at the house, correct? A. To tell you the truth, I don’t remember, I think I did
mention that [defendant] was there. I’m not for sure. Q. Well, at this point in time of the
interview, they were asking you questions and they asked you who was there. And the
8
answer was that there was four people. A Tony Cole. According to this, a Tony Martin
and Danny Johnson? A. Yes. Q. You told them you were watching the game. A. Yes.
Q. You believe you told them that [defendant] was there at the time? A. Yes. I didn’t
refer to him as [defendant]. I referred to him as Bones.”
Immediately after Norris referred to defendant as Bones, the following sidebar
proceeding took place. “[Prosecutor]: Your Honor, I’m—the portion, the transcript [to]
which [defense counsel] was referring . . . , I’ll submit the gang references in which he
asked to keep out. . . . This line of questioning may lead to some of the very gang
references that counsel is seeking to keep out. Specifically, the reason as to why Mr.
Norris did not initially state it was [defendant] and that has to do with some of the gang
connotations and his position within the gang. [¶] The Court: [Defense counsel] do you
want to be heard? [Defense Counsel]: Well, I don’t understand that, but he talked to the
police. They asked him who was there, he gave them the names and so he asked them,
that’s four of you altogether and he says, yes. So at first all he did was talk about other
people and they were putting [defendant] in there and if the court recalls, I ask[ed] that
earlier question about who was in the house at the time and he said the only person there
was—there was only Mr. Martin there for a period of time. [¶] The Court: Okay. But I
think your point, [prosecutor] is, is given the line of questioning, that [the prosecutor is]
going to be inclined to ask him why he made certain responses and that they may cause
him to respond, I’m assuming this is what she’s saying, about this gang reference and
that’s basically what I hear her saying, that it may be inviting that response by going
down this line. [¶] Now, I don’t—clearly don’t know. I haven’t seen the transcript. I
don’t know anything about it, but what I will say is that it logically, your line of
questioning leads to that area that I’m not going to be able to stop [the prosecutor] from
asking questions to clarify his answers. [¶] So you do so at your peril. I’m not
necessarily saying you have to, but what she’s saying is you’re headed in that direction.
I’m not making any ruling now, but I’m just suggesting you might take that into
consideration. [¶] [Defense Counsel]: Okay. I appreciate that.”
9
Cross-examination resumed, during which defendant’s counsel elicited the
following responses from Norris. “Q. Is that when you then started telling the officers
that you were driving the vehicle? A. Yes. Q. And that was your sole role was to drive
the vehicle? A. Yes, sir. Q. Did you ever tell the officers that you got involved in this,
because you thought that [defendant] and Mr. Martin were gang bangers? A. Did I say
that’s the reason why I got involved? Q. Yeah. A. I don’t know if I said that’s the
reason why I got involved. Q. Once you started to tell the story and started putting
yourself into this robbery as a driver, did you tell them that you didn’t want to be
involved, but you were afraid of them? A. Something to that effect. Q. And it was that
excuse you gave for, or the reason that you gave for reluctantly getting involved in this
robbery? A. Yes. Q. Now, just an aside, when you were here in court on direct
examination, you answered questions for the District Attorney and you told this jury that
you got involved for other reasons.”
Before Norris answered the last question, the prosecutor requested another sidebar
conference, during which the following exchange took place. “[Prosecutor]: Your
Honor, the court ruled specifically not to make any gang references. Based on that, the
witness made his response and did not pursue the additional reasons in which he got
involved. Counsel just alluded to the fact that gang bangers in this line of questioning.
[The] People [were] clear on the court ruling and ask the court to admonish on the record.
So that the witness is clear on the court ruling. It appears that defense counsel is not. [¶]
The Court: Counsel, it does create a problem in which you make an argument to exclude
certain testimony. [¶] [Defense Counsel]: Right. [¶] The Court: And then you in turn
are the one who brings out the testimony. The witness is instructed to not go in that area.
I think it’s kind of, you put him in a bind, so to speak. [¶] [Defense Counsel]: I can see
that and I can see that as raised. I just made the decision based upon our last sidebar, that
I believe that there was a possibility that the court was going to allow testimony to come
in. So although the court previously ruled that we could keep it out, I opened the door to
it purposely, but the reason I have a problem with this is that you he told us on direct
examination, that the reason he got involved is because he wanted to participate and share
10
in the profits basically, and so when we made that ruling, we weren’t asking him to lie
and come up with a different story. [¶] The Court: Right. Okay. Let me handle it this
way. Clearly the door is open. You can ask anything you want about that. You can also
ask if any of his answers on his cross examination were influenced by him having been
told beforehand that he wasn’t supposed to make reference to gang reference. You don’t
have to ask that, but I think based where we are, I’m going to allow that leeway because
we did specifically admonish him that he’s not to talk about gang information. The door
is open, you guys will do what you want with it. You can do what you want with the
information. [¶] [Prosecutor]: I understand, your Honor. . . . I understand counsel’s
strategy in opening the door, but it opened the door to the gang allegation and also the
relationship between Mr. Martin and [defendant] being gang members who committed a
robbery together previously. [¶] The Court: You can inquire [about] that too. [¶]
[Defense Counsel]: First of all, I think the court needs to have additional information.
What happened when this particular individual was interviewed, the story he gave to the
police was that he didn’t want to get involved and he did reluctantly, because he was
afraid of them, he made—he gave a different story, which was that [defendant] owed him
some money. And he thought this was the only way he can get his money back and when
he came to court today, he didn’t go with that story. He came up with this third story that
he clearly wanted to get involved. I would say I don’t see how that in any way opens up
the door to this relationship back years ago, these people hadn’t seen each other, been
with each other, until this recent period of time. So that’s the part—that’s the reason I
was getting into what he told this jury in court today, is because he had given two
different versions before. [¶] [Prosecutor]: And your Honor, I’m just not sure how the
fact that there’s gang affiliations, between all three of these individuals, specifically,
between Mr. Martin and [defendant], how that can develop exactly what he said without
and still within the court’s ruling of excluding the gang reference. [¶] The Court: What
are you asking the court at this point? [¶] [Prosecutor]: Your Honor, I’m just saying,
that given the court ruling, the court is—I’m not asking the court for anything. As the
court indicated, I would be allowed to go into that area and make reference to why the
11
defendant previously did not state that. [¶] [Defense Counsel]: Maybe I can make the
suggestion, because it may change over the course of my cross examination, but maybe
we should revisit this issue at the close of my cross and before redirect to see what doors
I’ve opened. Is that okay with the court? [¶] The Court: We can, but I’m going to say
preliminarily that I think the door has been swung wide open. But we can address that.”
On redirect examination, the prosecutor elicited the following gang-related
testimony from Norris. “Q. Now, you were asked a question on cross examination
regarding gang bangers. Do you recall that? A. Yes. Q. You stated you knew the
defendant by another name? A. Yes. Q. And what name is that? A. Bone. Q. And
did you know whether or not Mr. – whether the defendant had any gang affiliation? A.
Yes. Q. And what gang was that? A. Raymond Crips. Q. And Mr. Martin, your friend
of almost 30 years, do you know whether or not he had any gang affiliation? A. Yes. Q.
And what was that? A. The same. Same gang. Q. The Raymond Crips? A. Yes. Q.
When you were asked to be the get-away driver, did the fact that Mr. Martin and the
defendant belong to the Raymond Crips, did that play any role in your participation in the
robbery? A. Somewhat. Q. Can you explain to the jury what you mean by that? A. I
guess if, that’s how I knew them from that, you know that they were from that gang. As
far as that’s concerned, so - -.”
Following that testimony by Norris, defendant’s counsel requested a sidebar
conference. Following a lengthy exchange with counsel, the trial court ruled as follows:
“The Court: I’m going to allow the people to go along the lines that she indicated. I
disagree with your characterization of this, [defense counsel], I think that—I don’t know.
Using the door analogy, I think this is an instance, where it was opened and I don’t think
you can reclose it at this point. . . . Your side of the case put this out there and for you to
want to control the use of it at this point, is unruly. You created unruly situations in
regards to this. And I don’t think that justice would require that I preclude them. [¶] It’s
not as if what he’s testifying to now is not truthful, but you’re not the one that put in the
arena of relevance. That’s the problem with this. Okay. Because otherwise, nothing that
I’m hearing here is not now relevant. [¶] Now, put into question whether this gentleman
12
was intimidated or in any way influenced by this gang issue, and I don’t think that it’s
fair to say, no, you can’t bring that out, I think the remedy now is the arguments that you
two make. That’s all I can say. At this point, the people are allowed to put this on. And
I think that it’s in large part based upon the fact that you made a decision to bring it up.
And that you had previously asked that it not. [¶] See, the problem that you’re arguing
about is substantially of your creation, because of the motion to exclude the evidence.
You didn’t cause the witness to testify the way that he did, but if you stuck with the
ruling, that you asked the court to make, we wouldn’t have any of this problem, but you
made the decision to do so and this is the result of it. And that’s why I’m ruling the way I
am at this point.”
Redirect examination continued, during which the prosecutor elicited further gang-
related testimony from Norris. “Q. Mr. Norris, during the time that you spoke with
Detective Wilken, did the issue of Mr. Martin and [defendant] being in the Raymond
Crips gang come up during that conversation? A. Yes. Q. And do you recall telling the
officer and Detective Wilken and his partner that you didn’t want to get caught up,
because of what Mr. Martin and [defendant] do? A. Yes. Something to that effect. Q.
And what were you referring to? A. Basically their gang affiliation or whatever. Q. Did
you tell Detective Wilken that [defendant] and Mr. Martin had friends? A. Yes. Q. Did
you tell the detective you didn’t want to. That they had friends that were gang bangers?
A. Yes. Q. Did you ask the detective whether or not you would have to testify—you
would have to testify. Any particular reason why you asked Detective Wilken why you
would have to testify in this case. A. Yes. Because I know that there would be
complications for me testifying or whatever. Q. Could you explain to the jury what you
mean by complications? A. I mean there would be people that wouldn’t like me to come
to court and testify. I didn’t know what would happen for them to prevent me from
testifying. Q. When you say there would be people to prevent you from testifying,
would these people be associated with Mr. Martin and the defendant? A. Yes. Q.
Which one, sir? A. Pardon me? Q. Which one? Mr. Martin or the defendant? A. The
defendant. Q. Now, the complications that you’re talking about, were you aware of
13
those complications or the possibility of those complications when you were talking with
Detective Wilken? A. Yes. Q. Did that play any role whatsoever in what you were
telling Detective Wilken? A. Yes. Q. How so? A. Well, at first I didn’t implicate the
defendant, because of that fact—that’s why I left him out the first time they asked me
who was at the house. Q. Because of his association with the Raymond Crimes [sic]?
A. Yes. Q. Your friend, Mr. Martin, was in Raymond Crips as well, right? A. Yes. Q.
If I ask you whether or not Mr. Martin was active in the Raymond Crips, do you know
what I mean by that? A. Yes, I do. Q. And was he? A. No, he wasn’t at that time. Q.
And when I say—let me ask you. Was Mr. Martin—I’m sorry. The defendant, was he
active in the Raymond Crips? A. As far as I know, yes. Q. Now, could you explain to
the jury, what do you mean by ‘active?’ When you say ‘active,’ what do you mean by
that in relation to the Raymond Crips gang? A. ‘Active’ means that he hangs out with
them. You know, he lives, he lived in the same city as they did. So yeah, he was
affiliated with them. He was around them. Q. Would you say, you had a certain attitude
or respect toward the defendant because of that association? A. Yeah. I would say so,
yes. Q. Is that affecting your testimony today? A. Is that affecting my testimony? Q.
That’s right, sir. A. Not really. No.” “Q. Did the detectives—when you were talking
with detectives during their interview, you mentioned yesterday that you knew Mr.
Martin and [defendant] to be associated with the Raymond Crips gang? A. Yes. Q.
And did you—were you asked whether or not you were a gang member? A. Yes. Q.
And what did you tell the detectives? A. I told them I wasn’t. Q. Do you know how
long Mr. Martin and [defendant]—or [defendant] have been associated with the Raymond
Crips gang? A. No, I don’t know exactly how long, no. Q. Do you know how long Mr.
Martin had been associated with the gang? A. I would say over 20 years. Q. Did you
tell officers that—well, you indicated yesterday that you knew Mr. Martin and
[defendant] as gang members, right? A. Yes, I did. Q. Did you think that Mr. Martin—
did you have any fear of Mr. Martin at the time of this robbery? A. No, I didn’t. Q. Did
you have any fear of [defendant] at the time of this robbery? A. Not particularly them
themselves but who they were associated with.”
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During closing arguments, both the prosecutor and defense counsel made
reference to the gang testimony. The prosecutor argued that despite Norris’s knowledge
that defendant and Martin were gang members, he willingly participated in the robbery
with them. Defendants’ counsel argued that Norris’s statement about being afraid of
defendant and Martin because they were gang members was not credible, given his other
inconsistent statements about why he participated in the robbery.
2. Applicable Legal Principles
“‘To establish a violation of the constitutional right to effective assistance of
counsel, a defendant must show both that his counsel’s performance was deficient when
measured against the standard of a reasonably competent attorney and that counsel’s
deficient performance resulted in prejudice to defendant in the sense that it “so
undermined the proper functioning of the adversarial process that the trial cannot be
relied on as having produced a just result.”’ (People v. Kipp (1998) 18 Cal. 4th 349, 366
[75 Cal. Rptr. 2d 716, 956 P.2d 1169], quoting Strickland v. Washington [(1984)] 466 U.S.
[668,] 686.) Preliminarily, we note that rarely will an appellate record establish
ineffective assistance of counsel. (People v. Mendoza Tello (1997) 15 Cal. 4th 264, 267-
268 [62 Cal. Rptr. 2d 437, 933 P.2d 1134].)” (People v. Thompson (2010) 49 Cal. 4th 79,
122.) “We have repeatedly stressed ‘that “[if] the record on appeal sheds no light on why
counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked
for an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation,” the claim on appeal must be rejected.’ (People v. Wilson
(1992) 3 Cal. 4th 926, 936 [13 Cal. Rptr. 2d 259, 838 P.2d 1212] quoting People v. Pope
(1979) 23 Cal. 3d 412, 426 [152 Cal. Rptr. 732, 590 P.2d 859, 2 A.L.R. 4th 1].) A claim of
ineffective assistance in such a case is more appropriately decided in a habeas corpus
proceeding. (People v. Wilson, supra, at p. 936; People v. Pope, supra, at p. 426.)”
(People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)
The burden is on defendant “to demonstrate by a preponderance of the evidence
that counsel’s performance was inadequate and fell below an objective standard of
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reasonableness (In re Gay (1998) 19 Cal. 4th 771, 790 [80 Cal. Rptr. 2d 765, 968 P.2d
476]), i.e., that [defendant] was deprived of ‘reasonably effective assistance’ (Strickland,
supra, 466 U.S. at p. 687; accord, People v. Wade (1988) 44 Cal. 3d 975, 989 [244
Cal. Rptr. 905, 750 P.2d 794]). We assess the reasonableness of counsel’s performance
deferentially. (Strickland, at p. 689; People v. Mincey (1992) 2 Cal. 4th 408, 449 [6
Cal. Rptr. 2d 822, 827 P.2d 388].) We consider counsel’s performance from his
perspective, analyzing counsel’s decisions based on what he knew or should have known
at the time. (People v. Gonzalez (1990) 51 Cal. 3d 1179, 1243-1244 [275 Cal. Rptr. 729,
800 P.2d 1159]; In re Andrews (2002) 28 Cal. 4th 1234, 1253 [124 Cal. Rptr. 2d 473, 52
P.3d 656].) [¶] The reasonableness of counsel’s performance is assessed according to
the prevailing norms at the time. The United States Supreme Court has ‘declined to
articulate specific guidelines for appropriate attorney conduct and instead ha[s]
emphasized that “the proper measure of attorney performance remains simply
reasonableness under prevailing professional norms.”’ (Wiggins v. Smith (2003) 539
U.S. 510, 521 [156 L. Ed. 2d 471, 123 S. Ct. 2527]; accord, Rompilla v. Beard (2005) 545
U.S. 374, 380 [162 L. Ed. 2d 360, 125 S. Ct. 2456, 2462].) [¶] In evaluating counsel’s
performance, we assess both the reasonableness of counsel’s decisions and the
reasonableness of the investigation that underlay each decision. . . . ‘“[S]trategic
choices made after thorough investigation of law and facts relevant to plausible options
are virtually unchallengeable; . . . .”’” (In re Thomas (2006) 37 Cal. 4th 1249, 1257-
1258.)
“‘“Reviewing courts defer to counsel’s reasonable tactical decisions in examining
a claim of ineffective assistance of counsel (see People v. Wright (1990) 52 Cal. 3d 367,
412 [276 Cal. Rptr. 731, 802 P.2d 221]), and there is a ‘strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.’” (People v.
Lucas (1995) 12 Cal. 4th 415, 436-437 [48 Cal. Rptr. 2d 525, 907 P.2d 373], quoting
Strickland v. Washington (1984) 466 U.S. 668, 689 [80 L. Ed. 2d 674, 104 S. Ct. 2052].)
“[W]e accord great deference to counsel’s tactical decisions” ( People v. Frye (1998) 18
Cal. 4th 894, 979 [77 Cal. Rptr. 2d 25, 959 P.2d 183]), and we have explained that “courts
16
should not second-guess reasonable, if difficult, tactical decisions in the harsh light of
hindsight” ( People v. Scott (1997) 15 Cal. 4th 1188, 1212 [65 Cal. Rptr. 2d 240, 939 P.2d
354]). “Tactical errors are generally not deemed reversible, and counsel’s
decisionmaking must be evaluated in the context of the available facts.” (People v. Bolin
(1998) 18 Cal. 4th 297, 333.)’” (People v. Jones (2003) 29 Cal. 4th 1229, 1254.)
3. Analysis
In this case, the record shows that defense counsel was faced with a difficult
tactical decision during his cross-examination of Norris because the reason Norris gave at
trial for participating in the robbery was different than the reason he had previously given
investigators—i.e., he participated out of fear of defendant’s gang membership. Norris
was a key prosecution witness who participated in the robbery and identified defendant as
one of the armed robbers. His credibility was therefore a crucial issue for the jury. Thus,
it was not unreasonable under professional norms for defense counsel to conclude that
impeaching Norris with his prior inconsistent statements to police was necessary to
further undermine Norris’s credibility. That the impeachment would involve eliciting
information about defendant’s gang membership did not, by itself, make defense
counsel’s tactical choice unreasonable. The record supports an inference that defense
counsel was aware of the risk involved in impeaching Norris with his prior statements
about defendant’s gang membership and that he rationally balanced that risk against the
benefit to be derived from impeaching Norris and arguing to the jury that he was an
unreliable witness.
Given the strong presumption that defense counsel’s choice fell within a wide
range of reasonable professional assistance, we must defer on this record to defense
counsel’s difficult choice in this instance and cannot second guess that choice in the harsh
light of hindsight. When all the circumstances surrounding defense counsel’s tactical
choice are viewed from his perspective, and in the context of the available facts, that
tactical choice does not, on this record, appear to fall below prevailing professional
17
norms, such that we can conclude on direct appeal that there was ineffective assistance of
counsel.
DISPOSITION
The judgment of conviction is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MOSK, J.
We concur:
TURNER, P. J.
KRIEGLER, J.
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