People v. Cardoza CA2/7

Filed 12/8/20 P. v. Cardoza CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B299328
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA141624)
v.
JESSE ALEXANDER CARDOZA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Laura R. Walton, Judge. Affirmed with
directions.
Janyce Keiko Imata Blair, under appointment by the Court
of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, David E. Madeo and Theresa A.
Patterson, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
A jury convicted Jesse Alexander Cardoza on two counts of
murder. He appeals, arguing the trial court violated his
constitutional rights to counsel and to effective assistance of
counsel when the court decided how to respond to a note from the
jury at a hearing where Cardoza was represented by substitute
counsel rather than trial counsel. Because we do not presume
prejudice in this situation, and Cardoza cannot show prejudice,
we affirm the convictions. We also conclude Cardoza forfeited his
argument the trial court violated his due process rights under
People v. Dueñas (2019) 30 Cal. App. 5th 1157 (Dueñas), which
this court decided over five months before the trial court
sentenced Cardoza, by imposing a fine and assessments without
determining his ability to pay.
FACTUAL AND PROCEDURAL BACKGROUND
A. The People Charge Cardoza with Murdering Two
People with a Knife
Cardoza stabbed and killed two people, one on
September 24, 2016 and one on October 29, 2016. Both attacks
occurred during fights after a party.
The People charged Cardoza with two counts of murder.
The People also alleged Cardoza personally used a dangerous or
deadly weapon within the meaning of Penal Code section 12022,
2
subdivision (b)(1),1 in committing both offenses and that the
commission of the two murders was a special circumstance
within the meaning of section 190.2, subdivision (a)(3).
B. The Jury Reaches an Impasse, and the Trial Court
Rereads Certain Instructions and Allows Counsel To
Present Additional Argument
In the morning on the fourth partial day of deliberations,
the jurors sent the trial court a note stating (despite the court’s
instruction not to disclose their votes) that they were deadlocked
on the September 24, 2016 murder count at 11 jurors for second
degree murder and one juror for not guilty and that they were
deadlocked on the October 29, 2016 murder count at 10 jurors for
first degree murder, one juror for second degree murder, and one
juror for not guilty. At a hearing to discuss the court’s response
to the jury’s note, the two prosecutors who tried the case
appeared for the People, and a substitute counsel “specially”
appeared for Cardoza in place of the attorney who represented
Cardoza at trial. The court stated it intended to bring the jurors
into the courtroom and ask if there was anything the court could
do “to assist them in reaching a unanimous verdict in this case”
and, at the prosecutors’ suggestion, to read the jurors CALCRIM
No. 3551, the instruction on further deliberations when a jury is
deadlocked. (See People v. Hem (2019) 31 Cal. App. 5th 218, 222.)
The court called the jurors into the courtroom and asked
the presiding juror if there had been any “movement in the
votes,” to which the presiding juror said, “No.” In response to the
court’s question whether there was anything the court could do or
instructions the court could read, the presiding juror stated,
“Basically, from what I understand, is that there either has to be
1 Undesignated statutory references are to the Penal Code.
3
testimony that someone actually saw the knife and the
stabbing . . . . They just wanted to have some proof that the
defendant stabbed the victims. It was not enough evidence.” At
a sidebar conference, the court suggested rereading the
instructions on circumstantial evidence, and the prosecutors
suggested allowing counsel to present additional argument on
circumstantial evidence. Substitute counsel did not object. The
court said that trial counsel for Cardoza, who the prosecutor
represented was an hour away and could argue after lunch,
would need to return to the courtroom. The court decided to
reread the instructions on circumstantial evidence and allow each
side to present argument “concerning the circumstantial evidence
as to the proof of the stabbing.” When the sidebar conference
concluded, the court told the jurors that after lunch it would read
instructions on circumstantial evidence and allow the attorneys
to present additional argument on how those instructions applied
to the case.
When the proceedings resumed after lunch, the court
stated that the clerk had spoken with trial counsel for Cardoza
and that the clerk told counsel the court wanted him to be in
court at 2:30 p.m. When the court indicated it was going to
proceed and read the jurors CALCRIM No. 3551 and the pattern
instructions on circumstantial evidence, substitute counsel for
Cardoza stated, “Would the court be willing to forego the reading
of any further instructions until [trial counsel for Cardoza] gets
here? I don’t know a thing about this case. I’m the conflict
attorney today in the courthouse. I’m feeling very uncomfortable
about this being done on the record at this point. I don’t want to
jeopardize this case in any way at all. Since he will be here
within a half hour, I’m asking the court to forgo the reading of
the instructions until [trial counsel for Cardoza] has an
opportunity to address the issue himself.” The court stated that
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trial counsel for Cardoza told the clerk he did not object to
rereading instructions the court had already read to the jury.
One of the prosecutors confirmed that trial counsel for Cardoza
told him the same thing. Substitute counsel for Cardoza said,
“Thank you. I did not have that discussion with him, Your
Honor, so I didn’t know that.” In response to substitute counsel’s
question, the court confirmed it was only reading CALCRIM
No. 3551 and instructions the court had previously read.
Substitute counsel stated, “Thank you, Your Honor. I appreciate
that.” The jurors returned to the courtroom, and the court read
those instructions and told the jury the attorneys would give
further argument when trial counsel for Cardoza arrived.
When trial counsel for Cardoza arrived later that
afternoon, the court summarized for him what had occurred in
his absence (and in substitute counsel’s presence): the jury’s note,
the court’s discussion with the presiding juror, and the reading of
the CALCRIM instructions on circumstantial evidence and
further deliberations. The court also put on the record that the
jury had asked another question, this time asking for
“clarification of the difference between first degree and second
degree murder.” The court stated that, after conferring with one
of the prosecutors and trial counsel for Cardoza, the court
answered the question by telling the jurors that they should
review CALCRIM Nos. 520 and 521 and that, for first degree
murder, the defendant had to “have acted, one, willfully, two,
deliberately, and three, with premeditation.” The court said that
it intended to bring the jurors into the courtroom for additional
argument by counsel, but that trial counsel for Cardoza had
indicated he did not want additional argument.
Trial counsel for Cardoza argued: “First of all, I would
have a strong objection to an argument by the People. It’s just
not fair, and it’s in violation of due process because I know this
5
court would never give me an opportunity to talk to this jury if it
was 11 to 1 for innocent.” Counsel objected to additional
argument because, given that the court and counsel knew the
jury “count” was 11 to 1 to convict, “the pressure on this one juror
is undue, and it’s in violation of due process.” Trial counsel for
Cardoza stated: “I’m not going to proceed because of the violation
of due process. What’s fair here? He’s had two times to argue,
and where are you going to limit it?” Counsel asked the court to
excuse him and Cardoza “from any proceeding in this matter.”
Trial counsel for Cardoza further stated: “I would like to add
that [the jurors] have been advised that they can read the law.
It’s in there. They can see what circumstantial evidence is. I
don’t mind if he reads the law. Why does he have a chance now
to talk about facts and evidence and all of that? It’s just—just
boggles my brain.” And: “I doubt very seriously if this court, or
any court, had a count of . . . guilty or not guilty before they start
giving the district attorney the floor again. I’ve never seen it.”
The trial court took a personal waiver of Cardoza’s right to be
present during the prosecutors’ argument, but ultimately ordered
Cardoza and his attorney to remain in the courtroom. With trial
counsel for Cardoza’s permission, the court informed the jury that
counsel for Cardoza would not be making any further argument.
At the conclusion of the prosecutor’s additional argument, the
trial court denied Cardoza’s motion for a mistrial.
C. The Jury Convicts Cardoza
The jury found Cardoza guilty of second degree murder on
one count and first degree murder on the other count. The jury
also found the special circumstance and weapon allegations true.
On the conviction for second degree murder, the trial court
sentenced Cardoza to a prison term of 15 years to life, plus one
6
year for the weapon enhancement. On the conviction for first
degree murder with the special circumstance finding, the court
sentenced Cardoza to life in prison without the possibility of
parole, plus one year for the weapon enhancement.2 Cardoza
timely appealed.
DISCUSSION
Cardoza does not argue the trial court erred in rereading
the CALCRIM instructions to the jury or in allowing both sides to
present additional argument on circumstantial evidence. Nor
does he argue, as his trial counsel argued to the trial court, that
allowing the prosecutors to present a third argument to the jury
violated due process. Instead, Cardoza argues that having a
hearing on how to respond to the jury’s note with Cardoza’s
substitute counsel, rather than his trial counsel, denied Cardoza
his constitutional right to counsel under United States v. Cronic
(1984) 466 U.S. 648 [104 S. Ct. 2039, 80 L. Ed. 2d 657] (Cronic) and
his right to effective assistance of counsel under Strickland v.
Washington (1984) 466 U.S. 668 [104 S. Ct. 2052, 80 L. Ed. 2d 674]
(Strickland).
A. Cardoza Was Not Deprived of His Right to Counsel
Cardoza argues that “the representation rendered . . . by
[substitute counsel], who appears to have been thrust into a
circumstance in which she could only advocate for [Cardoza] on
the procedural point that the proceedings should not take place
2 The minute order and the abstract of judgment erroneously
state the court sentenced Cardoza to life without the possibility of
parole on both counts. The trial court will have to correct both
errors.
7
without defense trial counsel and not on any point of substance,
was of such a level that it amounted to a constructive denial of
[his] right to counsel” under Cronic. Citing substitute counsel’s
statement that she did not know anything about the case,
Cardoza argues substitute counsel “did not advocate for
[Cardoza] and the evaluation and analysis of the nature of the
jury impasse and of the agreed-upon course of action were never
subjected to ‘adversarial testing.’” Cardoza asserts his substitute
counsel “was not and, because of her lack of familiarity with his
case, could never have been an effective advocate for [Cardoza] in
these critical and adversarial proceedings.”
Under the United States Supreme Court’s decisions in
Cronic and Strickland, “the right to the assistance of counsel is
violated either by (1) the complete denial of counsel or its
equivalent, or (2) the denial of the effective assistance of counsel.
[Citations.] . . . [T]ypically, a defendant claiming a violation of the
federal constitutional right to effective assistance of counsel must
satisfy a two-pronged showing: that counsel’s performance was
deficient, and that the defendant was prejudiced, that is, there is
a reasonable probability the outcome would have been different
were it not for the deficient performance. [Citation.] In contrast,
a defendant is spared ‘the need of showing probable effect upon
the outcome . . . where assistance of counsel has been denied
entirely or during a critical stage of the proceeding . . . the
likelihood that the verdict is unreliable is so high that a case-by-
case inquiry is unnecessary. [Citations.] But only in
“circumstances of that magnitude” do we forgo individual inquiry
into whether counsel’s inadequate performance undermined the
reliability of the verdict.’” (People v. Alexander (2010) 49 Cal. 4th
846, 888.) The California Supreme Court has emphasized that
8
the exception to “the rule that a defendant claiming ineffective
assistance of counsel must show prejudice” is “very narrow.”
(People v. Rices (2017) 4 Cal. 5th 49, 91, citing Florida v. Nixon
(2004) 543 U.S. 175, 190 [125 S. Ct. 551, 160 L. Ed. 2d 565] and
Bell v. Cone (2002) 535 U.S. 685, 696-697 [122 S. Ct. 1843,
152 L. Ed. 2d 914]; see People v. Brown (2014) 59 Cal. 4th 86, 115.)
The United States Supreme Court in Cronic “recognized
three categories of cases that constitute per se violations of the
Sixth Amendment right to counsel with respect to which
prejudice is presumed: (1) ‘the complete denial of counsel’
[citation] at a critical stage of trial, (2) counsel’s failure ‘to subject
the prosecution’s case to meaningful adversarial testing’
[citation], and (3) ‘the likelihood that any lawyer, even a fully
competent one, could provide effective assistance is so small
[under the particular circumstances] that a presumption of
prejudice is appropriate without inquiry into the actual conduct
of the trial.’” (People v. Jacobs (2013) 220 Cal. App. 4th 67, 76,
quoting Cronic, supra, 466 U.S. at pp. 659-660; see People v.
Brown, supra, 59 Cal.4th at p. 115 [“‘Defendants have been
relieved of the obligation to show prejudice [under Cronic] only
where counsel was either totally absent or was prevented from
assisting the defendant at a critical stage.’”];3 People v. Streeter
(2012) 54 Cal. 4th 205, 232 [“when the defendant is represented
3 The People concede “a court’s response to an impasse
during jury deliberations constitutes a critical stage of the
proceeding . . . .” (See People v. Hawthorne (1992) 4 Cal. 4th 43,
68-69 [“failure to give notice or afford an opportunity to respond”
to an inquiry from the jury or to “take[ ] some action on the
defendant’s behalf to amplify, clarify, or modify the supplemental
instruction or procedure” is constitutional error]; People v.
Bradford (2007) 154 Cal. App. 4th 1390, 1410 [“Jury instruction is
a critical stage of the proceedings.”].)
9
by counsel, the presumption of prejudice will only stand when
counsel entirely failed to subject the prosecution’s case to
meaningful adversarial testing”].) “Prejudice must be shown if
counsel has opposed the prosecution throughout the relevant
proceeding, even if counsel failed or was unable to do so at
specific points.” (People v. Hernandez (2012) 53 Cal. 4th 1095,
1106.)
Cardoza does not fall within any of the Cronic exceptions to
the requirement of prejudice. He was represented by counsel at
all times; at no point in the proceedings was he completely denied
counsel or its equivalent. During one morning of jury
deliberations he was briefly represented by an attorney who was
substituting or standing in for his trial attorney, but that
attorney was still an attorney. (See People v. Streeter, supra,
54 Cal.4th at p. 232 [representation by substitute counsel without
trial counsel during jury selection did not deny the defendant his
right to counsel under the federal and state constitutions
“because defendant had an attorney representing him at all times
during the jury selection proceedings” and “there was not a
complete denial of counsel, let alone ‘structural error’”]; People v.
Benavides (2005) 35 Cal. 4th 69, 86-87 [absence of lead counsel
during a portion of jury selection was not a “presumptively
prejudicial violation of [the defendant’s] right to counsel” where
“either lead counsel or cocounsel, or both, were present at all
times”].)
Nor was there a failure to meaningfully and adversarially
test the People’s case. The People’s case was over; Cardoza’s trial
counsel had subjected it to meaningful adversarial testing for
nine trial days. The issue was whether the court would reread
certain instructions and one pattern jury instruction on
continuing deliberations when the jury was deadlocked.
Substitute counsel challenged the prosecutors’ request and the
10
court’s ruling by objecting to the court rereading any instructions
until trial counsel returned later in the afternoon. That the court
overruled the objection did not indicate the absence of an
adversarial process. To the contrary, the proceedings reflected
that the adversarial process was functioning properly: The
prosecutors made a request, Cardoza’s substitute counsel
objected, and the court ruled. (See Bell v. Cone, supra, 535 U.S.
at pp. 696-697 [“When we spoke in Cronic of the possibility of
presuming prejudice based on an attorney’s failure to test the
prosecutor’s case, we indicated that the attorney’s failure must be
complete.”]; In re Visciotti (1996) 14 Cal. 4th 325, 353
[“notwithstanding the broad language in the Cronic opinion
[citation] to the effect that when ‘counsel entirely fails to subject
the prosecution’s case to meaningful adversarial testing,’ the
right to competent counsel has been denied and the result of the
trial is presumptively unreliable, the actual application of Cronic
has been much more limited”]; In re Avena (1996) 12 Cal. 4th 694,
727 [trial counsel who waived opening statement, called no
defense witnesses, and did not address two murder charges or
two special circumstance allegations in closing argument was
“neither ‘totally absent’ nor ‘prevented’ from assisting petitioner
at trial”].)
Finally, this was not a case where, under the
circumstances, the likelihood was small that even a fully
competent attorney could provide effective assistance. Cases in
that category include those where “the court barred counsel from
the courtroom, interfered with their ability to confer with their
clients [citation], directed them to sit mute at the counsel table
[citation], issued an order out of pique or whim directing counsel
to stop representing their clients, or anything similarly serious.”
(People v. Rivas (2013) 214 Cal. App. 4th 1410, 1424-1425.) This
was not such a case. There was a discussion without Cardoza’s
11
trial counsel about rereading jury instructions on circumstantial
evidence, but substitute counsel—competently, albeit
unsuccessfully—objected and asked the court not to read the
instructions until trial counsel returned and could be heard.
There was also a discussion about having counsel present
additional argument on the concept of circumstantial evidence
and how it related to the evidence in the case, but Cardoza’s trial
counsel strenuously objected to any additional argument when he
returned to the courtroom. (Cf. Cronic, supra, 466 U.S. at
pp. 660-661 [citing Powell v. Alabama (1932) 287 U.S. 45
[53 S. Ct. 55, 77 L. Ed. 158], where the trial court on the day of
trial appointed an out-of-town lawyer who “was unwilling to
represent the defendants on such short notice” but who assisted
the defendants with “whatever help the local bar could provide,”
as an example of “a case in which the surrounding circumstances
made it so unlikely that any lawyer could provide effective
assistance that ineffectiveness was properly presumed without
inquiry into actual performance at trial”].)
The cases cited by Cardoza, People v. Nunez (1983)
144 Cal. App. 3d 697 and People v. Hogan (1982) 31 Cal. 3d 815,
disapproved in People v. Cooper (1991) 53 Cal. 3d 771, 836, do not
support his argument. Both cases involved the complete absence
of counsel, not substitute or stand-in counsel, and in both cases
the court (contrary to Cardoza’s position that prejudice should be
presumed) considered whether the error was prejudicial. In
Nunez the trial court excused an alternate juror, ordered
readback of testimony, accepted the jury’s verdict, and polled the
jurors, all in the absence of (and indeed without even notifying)
the defendant’s attorney. (Nunez, at pp. 701-703.) The court in
Nunez held this was error, but concluded the error was harmless
under Chapman v. California (1967) 386 U.S. 18, 24 [87 S. Ct.
824, 17 L. Ed. 2d 705], because the defendant “was not prejudiced
12
by the absence of his counsel during the jury’s deliberations.”
(Nunez, at pp. 702-703.) In Hogan the trial court responded to
jury requests and sent exhibits into the jury room without
notifying the defendant’s attorney. (Hogan, at p. 848.) The
Supreme Court in Hogan held the “conduct of the trial court in
sending in the exhibits without notifying counsel was serious
error,” but the Supreme Court proceeded to consider “whether the
denial of assistance of counsel here was prejudicial error
requiring reversal,” ultimately concluding the error was not
harmless under Chapman. (Id. at p. 850.)4
B. Cardoza Was Not Deprived of His Right to Effective
Assistance of Counsel
Cardoza argues, briefly and in the alternative, that his
substitute counsel “failed to provide [him] with the effective
representation the Sixth Amendment right to counsel
contemplates.” Cardoza asserts his substitute counsel provided
ineffective assistance because she “was unable to advocate for
[him] in resolving a delicate jury impasse matter involving one
holdout juror for acquittal because counsel knew nothing about
[the] case.”
To establish ineffective assistance of counsel under
Strickland, “‘“a defendant must show that (1) counsel’s
representation fell below an objective standard of reasonableness
under prevailing professional norms, and (2) counsel’s deficient
performance was prejudicial, i.e., there is a reasonable
probability that, but for counsel’s failings, the result would have
4 Cardoza mentions the right to counsel under the California
Constitution, but he does not analyze whether or how that right
applies any differently from the right to counsel under the United
States Constitution.
13
been more favorable to the defendant. [Citation.] ‘A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.’”’” (People v. Rices, supra, 4 Cal.5th at p. 80; see
People v. Sepulveda (2020) 47 Cal. App. 5th 291, 301.) “If a claim
of ineffective assistance of counsel can be determined on the
ground of lack of prejudice, a court need not decide whether
counsel’s performance was deficient.” (In re Crew (2011)
52 Cal. 4th 126, 150; see Strickland, supra, 466 U.S. at p. 697 [“a
court need not determine whether counsel’s performance was
deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies,” and “[i]f it is
easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice, which we expect will often be so, that
course should be followed”].)
Here, Cardoza suffered no prejudice from substitute
counsel’s initial failure to object to the court’s decision to reread
the instructions on circumstantial evidence. The court had
already read those CALCRIM instructions, and Cardoza does not
argue there was anything erroneous or improper about them.
(See United States v. Chambers (N.D.Cal. Aug. 19, 2015,
No. 08-CR-00658-PJH-4) 2015 WL 12862915, p. 7 [counsel’s
failure to object to the court rereading instructions was not
prejudicial under Strickland where there was “no reasonable
probability that the court would have sustained an objection to
rereading the original instructions”].) The record reflects that
trial counsel for Cardoza told the courtroom clerk and one of the
prosecutors he had no objection to the court rereading the
instructions, and Cardoza does not contend the record on this
point is inaccurate. Indeed, when he returned to the courtroom
in the afternoon, trial counsel for Cardoza stated that, although
he objected to allowing the prosecutor to present additional
14
argument on circumstantial evidence, he had no objection to the
court rereading jury instructions the court had already given.
Nor did Cardoza suffer any prejudice from substitute
counsel’s failure to object to the court’s decision to allow
additional argument to assist the jurors in reaching a verdict.
Trial counsel strenuously objected to the court’s decision upon his
return to the courtroom. The court heard the objection, allowed
trial counsel for Cardoza to present legal argument on the
matter, and ensured there was a record of the objection to
preserve the issue for appeal. Although trial counsel argued the
court’s decision to allow additional argument was unfair and
violated Cardoza’s due process rights, Cardoza does not make
those arguments on appeal. He argues only that substitute
counsel was ineffective for not making the argument in the
morning that trial counsel made in the afternoon. Under these
circumstances, substitute counsel’s performance, regardless of its
comparison to prevailing professional norms, did not cause
Cardoza any prejudice.
C. Cardoza Forfeited His Challenge to the Restitution
Fine and Assessments
Cardoza argues the trial court violated his due process
rights under Dueñas, supra, 30 Cal. App. 5th 1157 by imposing a
$300 restitution fine under section 1202.4, subdivision (b), two
$30 court facilities assessments under Government Code section
70373, and two $40 court operations assessments under section
1465.8 without determining his ability to pay.5 The trial court,
5 The Supreme Court has granted review in People v. Kopp
(2019) 38 Cal. App. 5th 47, review granted November 13, 2019,
S257844, on the following issues: Must a court consider a
15
however, sentenced Cardoza on June 20, 2019, almost six months
after we issued our opinion in Dueñas. Because Cardoza could
have raised the issue of his inability to pay the restitution fine
and assessments but failed to do so, he has forfeited the
argument. (See People v. Castellano (2019) 33 Cal. App. 5th 485,
490 [“a defendant must in the first instance contest in the trial
court his or her ability to pay the fines, fees and assessments to
be imposed and at a hearing present evidence of his or her
inability to pay the amounts contemplated by the trial court”].)
defendant’s ability to pay before imposing or executing fines, fees,
and assessments? If so, which party bears the burden of proof
regarding defendant’s inability to pay?
16
DISPOSITION
The judgment is affirmed. The trial court is directed to
correct the June 20, 2019 minute order and the abstract of
judgment to reflect that the court sentenced Cardoza to a prison
term of 15 years to life on his conviction for second degree murder
and to a prison term of life without the possibility of parole on his
conviction for first degree murder with the special circumstance
finding. The trial court is also directed to send a corrected
abstract of judgment to the Department of Corrections and
Rehabilitation.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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