Opinion
NOT TO BE PUBLISHED
APPEALS from a judgment of the Superior Court of San Bernardino County No. FSB049578 Arthur A. Harrison, Judge.
IRION, J.
A jury convicted Michael Lamar Rose, Donald Ray Shorts and Mark Elise Williams of first degree murder (Pen. Code, § 187, subd. (a)), carjacking (§ 215, subd. (a)), second degree robbery (§ 211), first degree residential robbery (§ 211), two counts of attempted murder (§§ 664/187, subd. (a)) and kidnapping to commit another crime (§ 209, subd. (b)(1)). The trial court sentenced each defendant to life in prison without the possibility of parole.
All further statutory references are to the Penal Code unless otherwise indicated.
All three defendants appeal. Williams and Shorts argue that their convictions must be reversed because the trial court erred in denying their respective motions to sever their trials from the trial of codefendant Rose. Shorts also contends that the trial court violated his right to due process by permitting the prosecution to charge, and attempt to prove, a gang enhancement allegation when the allegation would not, given the charges, increase his sentence. Williams and Shorts also contend that their trial counsels did not provide adequate representation as required under the state and federal Constitutions. Shorts argues his counsel was deficient because he did not object to the introduction of fingerprint evidence as scientifically unreliable. Williams argues that his counsel was deficient for failing to present the potentially exculpatory testimony of a codefendant (Jamal Tucker) who pleaded guilty during the trial. Finally, Rose argues that the trial court erred in failing to appoint new counsel for purposes of investigating potential grounds for a motion for a new trial. As discussed below, we conclude that these contentions are without merit and affirm.
The Attorney General's brief begins, without explanation, with a bolded quotation that reads: " 'For the money, for the thrill, for the gang.' " We leave to the Attorney General's judgment the larger question of whether such rhetorical flourishes reflect the appropriate tone for its appellate presentation, but request in future cases that any such quotes include a citation as required by local rule and some explanation of the quotation's relevance to the appeal. (See Cal. Rules of Court, rule 8.204(a)(1)(C) [requiring every brief to "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears"].)
On April 22, 2005, Rose accompanied Michael Denmon to a store to have stereo equipment installed in Denmon's Range Rover. Rose and Denmon were close friends, "[l]ike brothers." After the equipment was installed, Rose asked Denmon for a ride to a house in Los Angeles. When they arrived at the house, Rose told Denmon to wait in the car.
Shorts then approached the car and spoke to Rose. Rose got out of the car and Shorts entered, pointing a handgun at Denmon's face. Shorts told Denmon to put his hands on the steering wheel. Williams and Tucker then approached the car. Rose, Shorts, Williams and Tucker were all members of the "107 Hoovers," a criminal street gang.
Midway through the trial, Tucker pleaded guilty to all the counts and allegations against him. He was sentenced to life in prison without the possibility of parole.
All of the men, except Denmon, were armed. Shorts took Denmon out of the car and repeatedly struck him across the face with a gun. The men taped Denmon up and placed him in the back of the car. They also took a diamond earring from Denmon. (Police later found an earring on Tucker that was consistent with the earring taken from Denmon.)
The men got into Denmon's Range Rover and Shorts drove to Redlands where Denmon lived with his mother, Peggy Faulkner, and her nephew, Gerald Brooks. Rose said that he knew where Denmon's family kept money because he was regularly at their home.
When they arrived, Rose, Tucker and Williams got out of the car and disguised themselves with masks. Shorts remained in the car, communicating with the others via a walkie talkie device. Shorts was saying things like, "Did you find the money?" "Did you get this and that?" and "Let's go."
Rose, Tucker and Williams entered Denmon's home. Faulkner and Brooks were home. The men tied Faulkner up and ordered her to lay face down on a bed. Rose told Faulkner, it's "me. Nobody is going to hurt you. We are just here to get the money." The men took money from Faulkner's purse and rifled through the drawers in the home; they took Faulkner's pink cell phone and her car keys.
Faulkner heard two shots and felt Brooks's body fall on her. One of the men then shot Faulkner three times in the head causing her to lose consciousness. Brooks died from two gunshot wounds to the head. Faulkner survived.
Rose and Williams fled in Faulkner's car. Shorts and Tucker left in the Range Rover with Denmon still in the back. As they drove, Tucker shot Denmon in the head. Shorts stopped the car and he and Tucker dumped Denmon on the side of the road. Denmon played dead until Tucker and Shorts left and then went to a nearby house to seek assistance. Despite severe injuries, Denmon survived.
A week later, on April 29, police stopped a beige Honda Accord in Las Vegas. The two male occupants, Shorts and Rose, fled the car. Las Vegas police apprehended Shorts nearby. When Shorts was brought back to the Accord, an officer placed Faulkner's pink cell phone on the hood; Shorts stated, "I fucked up." Detective Todd McMeans asked Shorts what happened to the phone, and Shorts responded that "it must have been damaged when [I] was taken into custody." Shorts then asked McMeans if he was going to "tow my car," referring to the Honda.
Rose fled to a nearby apartment but was later apprehended. Police found some of the stereo equipment taken from Denmon's car in the trunk of the Honda. (The police also located some of the stereo equipment in a car parked outside of Tucker's residence.) In an interview with police regarding the home invasion, Shorts claimed he remained outside the Redlands house but heard gunshots come from inside.
DISCUSSION
The defendants raise several challenges to their convictions. Each of the defendants also join in each other's appellate arguments. Thus, while we address each argument with reference to the defendant advancing the argument, we deem each argument to be advanced by each defendant to the extent applicable. (See, e.g., People v. Smith (1970) 4 Cal.App.3d 41, 44; People v. Stone (1981) 117 Cal.App.3d 15, 19.)
I
The Trial Court's Refusal to Sever Williams's and Shorts's Trial from Rose's Trial Does Not Warrant Reversal
Both Shorts and Williams contend that the trial court erred by failing to order that Rose be tried separately. They argue that severance was required because Rose's duress defense (i.e., that he participated in the offense under duress) conflicted with the defense offered by Shorts and Williams and amounted to "a second party prosecuting" them. We disagree.
"When defendants are charged with having committed 'common crimes involving common events and victims,' " the court "is presented with a ' "classic case" ' for a joint trial." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40 (Coffman and Marlow).) In such circumstances, the Legislature has "expressed a preference for joint trials." (People v. Boyde (1988) 46 Cal.3d 212, 231 (Boyde).) Clearly delineating this preference, section 1098 states in part: "When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court orders separate trials."
Section 1098 "permits the trial court to order separate trials," but the "decision to do so is one 'largely within the discretion of the trial court.' " (Boyde, supra, 46 Cal.3d at p. 232, quoting People v. Turner (1984) 37 Cal.3d 302, 312 (Turner), overruled on other grounds in People v. Anderson (1987) 43 Cal.3d 1104.) Even if a trial court acts within its discretion under section 1098 in denying a motion to sever, however, reversal may be warranted on constitutional grounds if, as a result of the joint trials, a " 'gross unfairness has occurred such as to deprive the defendant of a fair trial or due process of law.' " (Boyde, at p. 233.)
In determining whether severance is warranted, a trial court should consider the grounds identified by our Supreme Court that "may justify a severance": "(1) Where there is an extrajudicial statement made by one defendant which incriminates another defendant and which cannot adequately be edited to excise the portions incriminating the latter; (2) where there may be prejudicial association with codefendants; (3) where there may be likely confusion from evidence on multiple counts; (4) where there may be conflicting defenses; and (5) where there is a possibility that in a separate trial the codefendant may give exonerating testimony." (Boyde, supra, 46 Cal.3d at p. 232.)
Williams and Shorts correctly identify the presence here of one factor that may support a severance — "conflicting defenses." (Boyde, supra, 46 Cal.3d at p. 232.) In his own testimony, Rose claimed that Shorts and Williams committed the charged crimes, while he participated only under duress, based on his fear of Shorts. Rose's testimony shifting responsibility from himself to Shorts and Williams supported the prosecution's case as to those defendants and conflicted with the defenses of Shorts and Williams that they had not participated.
The mere fact that Rose's defense conflicted with that of Shorts and Williams, however, did not require a severance. Conflicting defenses is a fairly common occurrence in joint trials and it is well established that this factor, in and of itself, does not require a severance. (Coffman and Marlow, supra, 34 Cal.4th at p. 41 [" ' "Although several California decisions have stated that the existence of conflicting defenses may compel severance of codefendants' trials, none has found an abuse of discretion or reversed a conviction on this basis." ' "]; People v. Keenan (1988) 46 Cal.3d 478, 500 (Keenan) ["If the likelihood of antagonistic testimony alone required separate trials, they 'would appear to be mandatory in almost every case.' "].) As our high court emphasized in rejecting a similar claim in Boyde, " 'no denial of a fair trial results from the mere fact that two defendants who are jointly tried have antagonistic defenses and one defendant gives testimony that is damaging to the other and thus helpful to the prosecution.' " (Boyde, supra, 46 Cal.3d at p. 233, quoting Turner, supra, 37 Cal.3d at p. 313.)
The absence of an abuse of discretion or denial of fair trial is further evidenced here by the fact that, as the trial court noted, Rose's testimony identifying Williams and Shorts as perpetrators of the charged offenses would have been admissible against both defendants whether in joint or separate trials. Rose was an eyewitness to the events in question and his testimony that Shorts and Williams were the perpetrators was clearly relevant and admissible. The testimony was damaging, if credited, but Shorts and Williams were able to cross-examine Rose (like any other witness) and attempt to discredit his accusations. (See Boyde, supra, 46 Cal.3d at pp. 233-234.)
Shorts contends that evidence that Rose believed Shorts to be a dangerous person who made threats to coerce Rose's participation "could not otherwise have been introduced by the prosecution," but he fails to elaborate on this point. We are not convinced that this evidence would have been inadmissible in a separate trial. Nevertheless, even if that were the case, we do not believe its admission rendered the trial unfair. Rose's testimony that he believed Shorts was dangerous was relatively insignificant (with respect to the evidence against Shorts) in light of his testimony that Shorts was a perpetrator of the charged offenses. (See Keenan, supra, 46 Cal.3d at p. 500 [rejecting virtually identical contention that reversal was warranted based on " 'antagonistic defense' of duress" which "allowed [codefendant] to present prejudicial evidence and argument of uncharged conduct by defendant, which would not have been admissible against defendant in a separate trial"].) If the jury credited Rose's testimony, it would have been his identification of Shorts as the perpetrator, not his claims about Shorts's violent background or threats, that would ultimately have influenced their verdict. (See Coffman and Marlow, supra, 34 Cal.4th at p. 42 [rejecting challenge to trial court's refusal of severance despite fact that codefendant's "defense centered on the effort to depict [the defendant] as a vicious and violent man, and some evidence that would have been inadmissible in a separate guilt trial for [codefendant]... occupied a portion of their joint trial" because "the prosecution presented abundant independent evidence establishing both defendants' guilt" (fn. omitted)].)
In addition, "since the prosecutor did not present [Rose's] testimony, he did not impliedly vouch for its credibility." (Boyde, supra, 46 Cal.3d at p. 234.) Nor did the prosecutor "simply sit back and let the defendants convict each other; his case-in-chief... successfully withstood the test of sections 1118 and 1118.1, and he aggressively cross-examined" Rose. (Boyde, at p. 234.)
It may be true, as Williams contends, that as a practical matter Rose would have been less likely to testify if the trials were severed. This tactical consideration, however, does not render the resulting joint trial unfair. In fact, our Supreme Court has explicitly rejected the contention that because a codefendant is less likely to testify in a separate trial, severance should be granted. Our high court has stated, "We are aware of no principle which gives defendant the right to insulate himself, by the tactical device of severance, from the relevant and admissible testimony of his codefendant." (Keenan, supra, 46 Cal.3d at p. 500, fn. 5 [rejecting suggestion "that severance was required because, among other reasons, it is likely [the codefendant] would have exercised his Fifth Amendment privilege not to testify against defendant in a separate trial"].)
Williams highlights People v. Wardlow (1981) 118 Cal.App.3d 375, 383, where our colleagues in the Second District held that a trial court did not abuse its discretion in empanelling two separate juries to hear a case against two codefendants. He contends that the trial court here should have followed this procedure. The fact that a trial court, on different facts, did not abuse its discretion in empanelling separate juries, however, does not demonstrate that the trial court in this case was required to follow this same practice. The question here is whether the trial court abused its discretion under section 1098 or violated the constitution in declining to sever the cases. If, as we have concluded, the trial court did not abuse its discretion or violate the defendants' constitutional rights, we have no authority to reverse on the ground that there were alternative means that the trial court might have employed to conduct the trial.
Williams also argues that his counsel's lack of "access" to Rose prior to his testimony "compromised" his ability to defend against Rose's statements. Williams fails to support this argument with any analysis or relevant authority and we reject it. (People v. Williams (1997) 16 Cal.4th 153, 215 [contentions " 'perfunctorily asserted without argument in support' " are not properly before appellate court]; cf. People v. Gonzales (1970) 4 Cal.App.3d 593, 605 [noting that "unforeseen surprises and forays are not infrequent in joint trials"].) Further, Williams does not explain what measures he requested below, and/or the trial court should have taken, that would have provided the desired "access" to Rose prior to his testimony.
II
The Trial Court Did Not Err in Declining to Bar Evidence That Supported the Prosecution's Gang Allegation
Short contends that the trial court should have barred the prosecution from introducing evidence in support of a gang enhancement allegation (§ 186.22, subd. (b)) because there was not a "reasonable possibility" that the allegation would be applied to his sentence upon conviction. We disagree.
California law mandates a 10 year sentence enhancement for "any person who is convicted of a [violent] felony committed for the benefit of... any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1); see People v. Lopez (2005) 34 Cal.4th 1002, 1006.) For persons convicted "of a felony punishable by imprisonment in the state prison for life," however, the enhancement requires instead that the defendant "shall not be paroled until a minimum of 15 calendar years have been served." (§ 186.22, subd. (b)(5); Lopez, at p. 1007.)
Shorts contends that because he was charged with murder and attempted murder, both of which carry life prison terms, the trial court should have precluded the prosecution from pursuing a finding on the gang allegation. According to Shorts, apart from acquittal, "[t]he only realistic choice the jury had was between first or second degree murder...." In such circumstances, Shorts contends, "well-established law prevented the enhancement from being applied."
Shorts did not object below on this basis, and thus the objection was forfeited. (People v. Monterroso (2004) 34 Cal.4th 743, 773.) We nevertheless reach the merits of the allegation because Shorts contends that his counsel's failure to object deprived him of the constitutionally guaranteed assistance of counsel.
Shorts fails to cite any authority that supports his contention that the prosecution is barred from pursuing a gang enhancement allegation when the defendant will be convicted, if at all, solely for offenses carrying a life term. We are, frankly, skeptical that any such authority exists. Nevertheless, we need not resolve that question because the very assumption underlying Shorts's contention — that the enhancement would not increase his sentence regardless of the jury's verdict — is faulty. Shorts and his codefendants were not charged solely with murder and attempted murder, but also with carjacking, robbery and kidnapping. If the jury had convicted the defendants on only these lesser charges, the gang allegation (if found to be true) would have enhanced the resulting sentence. Consequently, we cannot fault the trial court for permitting the prosecutor to allege, and attempt to prove, the gang allegation.
Shorts ignores these lesser offenses, contending — with the certainty that can only be gained in hindsight — that "given the state of the evidence in this case, conviction for a lesser offense... was not a reasonable possibility." We simply cannot credit this assertion. Neither the prosecutor nor the trial court can predict in advance what the verdict will be in any particular case. Trials are filled with uncertainty. Witnesses fail to appear, or change their testimony on the stand. Evidence that appeared perfectly convincing to a prosecutor may be patently unconvincing (particularly after cross-examination) to the jurors; or it may be excluded or stricken by the trial court. Often, as here, defendants decide, without any notice to the prosecution, to testify casting new light on the prosecution's evidence. Juries sometimes reach compromise verdicts. (People v. Abilez (2007) 41 Cal.4th 472, 513 [recognizing that valid jury verdicts may reflect " 'jury lenity, compromise, or mistake' "].) Because of these uncertainties, the trial court cannot preclude an otherwise valid enhancement allegation (and an offer of evidence in support of that allegation) based on its own speculation as to the ultimate verdict.
In the alternative, Shorts contends that the gang allegation should have been tried in a separate proceeding. Shorts recognizes that his trial counsel did not request bifurcation, but asserts that this failure must be overlooked because it represents ineffective assistance of counsel.
A trial court is permitted to bifurcate the trial of a gang enhancement from the trial of the underlying charges. (People v. Hernandez (2004) 33 Cal.4th 1040, 1050.) The bifurcation decision, however, is committed to the trial court's discretion. (Ibid.)
Here, Shorts did not request bifurcation in the trial court and the record does not indicate the presence or absence of any tactical basis for this omission. Thus the ineffective assistance of counsel claim must be denied. (People v. Lucas (1995) 12 Cal.4th 415, 437, 445 (Lucas) [claim of ineffective assistance of counsel fails if the "record does not demonstrate there could be no rational tactical reason for [an] omission" (id. at p. 442)].) In addition, the requisite showing of prejudice is absent. (See People v. Ledesma (1987) 43 Cal.3d 171, 217-218 (Ledesma) [to establish ineffective assistance of counsel, " '[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different' "].) It is sheer speculation to assume that, had Shorts requested bifurcation, the trial court would have exercised its discretion to grant such a request. It requires another speculative leap to conclude that if the request had been granted, the outcome of the trial would have been more favorable. Speculation is insufficient to carry Shorts's burden of demonstrating ineffective assistance of counsel on appeal. (People v. Williams (1988) 44 Cal.3d 883, 937 ["to be entitled to reversal of a judgment on grounds that counsel did not provide constitutionally adequate assistance, the petitioner must carry his burden of proving prejudice as a 'demonstrable reality,' not simply speculation as to the effect of the errors or omissions of counsel"].)
In fact, the jury ultimately rejected the gang allegation, finding it "not true" in its verdict.
III
The Trial Court Did Not Abuse Its Discretion in Handling Shorts's Request for a New Trial
Shorts contends that the trial court erred in its handling of his new trial motion. We evaluate this claim after setting forth the procedural history.
A. Procedural History
After the jury's verdict, Shorts filed a motion to represent himself, along with a Faretta waiver, demonstrating his awareness of the implications of self representation. (See Faretta v. California (1975) 422 U.S. 806.) The waiver included an acknowledgement that "it is generally not a wise choice to represent myself in a criminal matter," and "the Court will not give me any special consideration because I am representing myself." On June 8, 2007, the trial court granted the motion. Shorts later requested additional access to the prison law library to facilitate his self-representation. The trial court granted the request. Shorts also requested a continuance of the sentencing date; the prosecutor stipulated to the continuance. A hearing on a new trial motion and, in the alternative, sentencing was set for August 8. On August 2, Shorts moved for a further continuance, arguing that he had not been provided "court transcripts," and that he had not received "the additional 4 hours" of library time granted by the court. Shorts also noted that he was "being denied legal supplies (writing pad, e[tc.])" that he "need[ed] to write down research notes [and] prepare [his] motion." Shorts also filed a written motion for a new trial, alleging violations of due process, ineffective assistance of counsel, jury misconduct, improper publicity and the inclusion of inadmissible evidence.
On August 9, the trial court conducted a hearing on Shorts's motion with Shorts's trial counsel present. At the outset of the hearing, the court read a letter it received from the prison authorities indicating that due to "the record number of pro per inmates and severely overbooked schedule," they had been unable to comply with the court's order to provide Shorts an additional four hours of library time. The trial court noted that Shorts had filed a new trial motion, that the court had informed Shorts in granting pro per status that there would not be "further continuances" absent good cause, and there was not "good cause to continue" the hearing. The court stated, "I will listen to each and every issue you wish me to consider on your motion for new trial" and give each "the consideration... required." The court noted that Shorts had murder charges pending in Los Angeles County and it was concerned Shorts was "seeking to delay proceedings here to avoid being transported to Los Angeles County." The court stated, "I am not going to continue [the proceedings] to keep you in San Bernardino to get... a legal education. You elected to represent yourself."
In response, Shorts added to his written new trial motion the ground that he should have received a severance based on Rose's testimony. Shorts and the prosecutor then questioned Shorts's trial counsel with respect to various allegations of ineffective assistance of counsel. At the conclusion of the evidence and argument, the trial court denied the new trial motion.
B. The Trial Court Did Not Abuse Its Discretion
Shorts argues that the trial court abused its discretion in denying his request for a continuance of the new trial hearing. Specifically, he argues that the trial court was required to continue the proceedings and enforce its order that Shorts have four hours of additional library time. He argues that the court's failure to grant the continuance request violated Shorts's right to due process of law or, alternatively, his right to self-representation.
Shorts also asserts that the trial court "rejected [his] request for transcripts of the trial he needed to prepare his motion," while citing People v. Jendrejk (1957) 152 Cal.App.2d 462, 468, for the proposition that "[a] trial court has discretion in a noncapital case to deny a defendant's request for daily transcripts." The sole authority for Shorts's claim that the trial court denied a request for transcripts is a declaration he filed in the trial court which states, "I am maladjusted to filing a new trial motion in part of being denied trial transcripts." This is insufficient to demonstrate that the court ruled in any manner on a request for transcripts, much less that its ruling constituted an abuse of discretion.
A trial court may grant a continuance only "upon a showing of good cause." (§ 1050, subds. (e) & (a) [codification of legislative finding that "criminal courts are becoming increasingly congested" and that "[e]xcessive continuances contribute substantially to this congestion and cause substantial hardship to victims and other witnesses"].) We review a trial court's denial of a motion for a continuance for an abuse of discretion. (People v. Wilson (2005) 36 Cal.4th 309, 352.) The appellant bears " '[t]he burden [of] establish[ing] an abuse of judicial discretion....' " (People v. Beeler (1995) 9 Cal.4th 953, 1003.)
Shorts has not carried his burden. At the time of the hearing, Shorts indicated that if he had more time in the prison law library he would be able to supplement his written motion for a new trial with additional legal authority and arguments. He did not, however, indicate any specific argument that he was unable to present due to the prison's failure to allocate his additional four hours of library time. Instead, Shorts appeared to be arguing that with more time, he could hone the arguments already made. Even on appeal, Shorts fails to explain what evidence or arguments he would have raised that he could not raise in the trial court. (People v. Ngaue (1991) 229 Cal.App.3d 1115, 1127 [stating that "speculative contentions" such as that "new counsel might have perceived additional grounds for a new trial motion" are insufficient to sustain "appellant's burden to show prejudice on appeal"].) Indeed, if Shorts believed he was entitled to a new trial based on some previously unexplored error in the trial proceedin gs, there is nothing preventing him from raising those errors now on appeal.
Given Shorts's failure to present any concrete support for his request for a continuance (apart from a desire to more fully inform himself of the pertinent law) and the court's suspicion that Shorts might be attempting to delay the proceedings, we cannot conclude that the denial of the continuance request was an abuse of discretion. The trial court possessed extensive familiarity with the case, had received Shorts's written new trial motion and provided Shorts with an additional opportunity to orally supplement the motion. The trial court also allowed extensive questioning of Shorts's trial counsel to explore any allegations of ineffective assistance of counsel.
Our conclusion that the trial court acted within the scope of its broad discretion in denying Shorts's continuance request leads us to reject Shorts's related assertion that the court's actions violated his constitutional rights to due process and to counsel. As already explained, the trial court's actions were a reasoned response to the circumstances and cannot be deemed "so arbitrary as to violate due process." (See Ungar v. Sarafite (1964) 376 U.S. 575, 589 ["it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel," and whether a "denial of a continuance is so arbitrary as to violate due process" depends on "the circumstances present in every case, particularly in the reasons presented to the trial judge at the time [of] the request"].)
With respect to the right to counsel, Shorts voluntarily exercised his constitutional right to represent himself. He was made aware at the time he requested to represent himself that his ability to do so would be hampered by his lack of formal legal training and his incarceration. (People v. Pearson (1957) 150 Cal.App.2d 811, 815 ["a defendant who chooses to conduct his defense in person does so subject to the disabilities normally attendant upon the status of prisoner"]; People v. Wimberly (1963) 215 Cal.App.2d 538, 544-545 ["a defendant who intelligently refuses counsel and insists upon acting as his own counsel does not lose the status of prisoner and become entitled to extraordinary privileges not accorded defendants who are defended by counsel nor is he entitled to proceed in a manner different than that permitted to attorneys"].) That these factors may, in fact, have inhibited his ability to prepare a new trial motion cannot now be deemed grounds for reversal, absent some independent error on the part of the trial court. Here, there is no such error. As the federal Supreme Court has explained, whether a party is represented by counsel or self-represented, "only an unreasoning and arbitrary 'insistence upon expeditiousness in the face of a justifiable request for delay' violates the right to the assistance of counsel." (See Morris v. Slappy (1983) 461 U.S. 1, 11-12.) No such arbitrary action has been shown here.
Shorts contends that once the trial court learned of the prison authorities' inability to comply with the order to provide Shorts four additional library hours, it had only "three options": (i) enforce compliance; (ii) grant the continuance; or (iii) appoint separate counsel. We are reluctant to ascribe any such limitations on the wide discretion of the trial court in these circumstances. In any event, each of these options suggested by Shorts (on appeal), would themselves have required granting the continuance. As we conclude the trial court acted within its discretion in denying the continuance request, we cannot agree that the trial court was limited to the three options noted by Shorts.
IV
Shorts Fails to Demonstrate Ineffective Assistance of Counsel Based on the Admission of Fingerprint Evidence
Shorts argues that his counsel was ineffective for failing to object to the evidence that Shorts's fingerprints were found on the Honda stopped by police in Las Vegas. Shorts attacks the general scientific validity of fingerprint evidence and argues that if his counsel had objected to the fingerprint evidence on these grounds, the trial court would have excluded it.
We first note that, as Shorts concedes in his reply brief, the contention that fingerprint evidence is inadmissible in California courts (and thus that his counsel was deficient for failing to move to exclude the evidence) is contrary to controlling authority. (See People v. Johnson (1988) 47 Cal.3d 576, 601 [" 'Fingerprint evidence is the strongest evidence of identity, and is ordinarily sufficient alone to identify the defendant.' "]; People v. Webb (1993) 6 Cal.4th 494, 524 ["We therefore conclude that the laser-derived fingerprint image could not properly have been excluded on grounds it was derived by scientifically unproven means."]; People v. Farnam (2002) 28 Cal.4th 107, 160 [rejecting challenge to admissibility of evidence regarding computerized fingerprint matching system].) Thus, given the current state of California law, it is highly questionable that Shorts's attorney was constitutionally deficient for failing to object to the evidence on the grounds that fingerprint evidence is scientifically unreliable. (People v. Anderson (2001) 25 Cal.4th 543, 587 (Anderson) ["Counsel is not required to proffer futile objections."].)
Shorts explains that he raises the issue solely "to preserve it for further review."
Nevertheless, even if Shorts could show that his counsel's performance was deficient because of the failure to object to the fingerprint evidence, the challenge would still fail due to the absence of the requisite prejudice. To succeed on a claim of ineffective assistance of counsel, the " 'defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " (See Ledesma, supra, 43 Cal.3d at p. 218.) In the instant case, abundant evidence connected Shorts to the Honda and consequently, even if his fingerprint on that car had been excluded, there is no reasonable probability that the jury's verdict would have changed. The testimony established that Shorts was riding in the Honda, fled when it was stopped and was captured a short distance away by police. When Shorts was brought back to the car, he asked if the police were going to "tow my car," referring to the Honda. Consequently, as there was no argument that Shorts had not been in the Honda, the exclusion of the fingerprint evidence (which established this same fact) would have made little difference.
Similarly, there could be no contention that Rose was not in the Honda. In fact, Rose acknowledged in his own testimony that he was in the Honda.
V
Williams Fails to Establish That His Counsel's Failure to Call Tucker Constitutes Ineffective Assistance of Counsel
Williams contends that his trial counsel was ineffective for failing to call his codefendant Tucker as a defense witness. We address this claim after setting forth the pertinent procedural history and legal standard.
A. Procedural History
As noted earlier, Tucker withdrew his not guilty plea halfway through the trial and pleaded guilty to all the charges and allegations against him. After Tucker pleaded guilty, Williams's counsel requested that Tucker be available to testify. The court granted the request and notified Tucker's counsel.
Later, during the trial proceedings, Tucker's counsel informed the court that he had "talked to Mr. Tucker [a]nd insofar as his privilege exists, whether under [Evidence Code sections] 930 or 940, he would not be testifying." (See Evid. Code, § 930 ["To the extent that such privilege exists under the Constitution of the United States or the State of California, a defendant in a criminal case has a privilege not to be called as a witness and not to testify."]; id., § 940 ["To the extent that such privilege exists under the Constitution of the United States or the State of California, a person has a privilege to refuse to disclose any matter that may tend to incriminate him."].) Williams's counsel stated, "I am aware of that. I'm not going to call him." The court then inquired whether any of the other counsel intended to call Tucker as a witness. When each counsel stated they did not intend to call Tucker, the court dismissed Tucker and his counsel without ruling on the assertion of the privilege. Tucker's counsel added, in parting: "To the degree it reflects the record, he would not testify, period, under that section given his future housing." Tucker did not testify at the trial.
Prior to sentencing, Williams's counsel asked the court to continue the sentencing date to ensure that "Tucker's Fifth Amendment rights... expire from the date of his sentencing." Counsel stated:
"The Court may or may not be aware that I actually had information from Mr. Tucker, which is why I wanted to call him at trial, but then on advice of counsel he invoked, even though he already plead guilty and had been sentenced. His 60 days should run out, I think if I count the days right, just about the first day of July. [A]t that point he will not have a Fifth Amendment right and I can go talk to him and [obtain] a declaration under penalty of perjury [that will include] the information I have from Mr. Tucker which is exculpatory as to Mr. Williams."
The trial court granted the request for a continuance. On the new sentencing date, Williams's counsel sought a new trial on the ground of newly discovered evidence in the form of Tucker's testimony. According to counsel, Tucker, if called to testify, would testify that Williams was not present during the robbery and murder. Counsel stated that Rose "latched upon" Williams as an "easy target" in his testimony because Rose had a "familial relationship" with the actual perpetrator.
B. Legal Standard
To obtain relief on the ground of ineffective assistance of counsel, a defendant has the burden of establishing both counsel's deficiency and resulting prejudice, i.e.: (i) that " 'counsel's representation fell below an objective standard of reasonableness... under prevailing professional norms' "; and (ii) " 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " (In re Fields (1990) 51 Cal.3d 1063, 1069, 1070, quoting Strickland v. Washington (1984) 466 U.S. 668, 688, 693-694.) In evaluating a claim of ineffective assistance of counsel, we must indulge a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (Strickland, at p. 689.)
When a claim of ineffective assistance of counsel is raised on direct appeal, reversal is permitted " ' "only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission." ' " (Lucas, supra, 12 Cal.4th at p. 437, alteration in original.) If the "record does not demonstrate there could be no rational tactical reason for [an] omission," the claim fails. (Id. at p. 442.)
C. Williams Fails to Establish Ineffective Assistance of Counsel
Williams contends that the "record on direct appeal establishes that trial counsel's failure to call codefendant Tucker as a defense witness was based on the understanding that Tucker was unavailable" when, in fact, Tucker did not have a Fifth Amendment privilege to refuse to testify. Williams argues that his counsel's failure to call Tucker during trial thus constituted ineffective assistance of counsel requiring reversal. We disagree.
The record does not demonstrate deficiency. First, to the extent the record reflects Williams's counsel's understanding of the pertinent law, it appears that counsel was simply following applicable authority in the Courts of Appeal. In fact, the circumstances are analogous to those discussed in People v. Fonseca (1995) 36 Cal.App.4th 631, where the court held that a defendant who pleaded guilty retained the privilege so long as time remained to file a notice of appeal. The court stated, "at the earliest, the privilege expires when the time to file an appeal has passed with no notice of appeal filed." (Id. at p. 637; In re Courtney S. (1982) 130 Cal.App.3d 567, 573 [reaching similar conclusion with respect to defendant who pleaded guilty but "still had the right to appeal at the time his testimony was sought"]; cf. People v. Lopez (1999) 71 Cal.App.4th 1550, 1554 ["When a defendant has already pled guilty to a charge, and time to appeal the conviction has run without an appeal being filed, the defendant's privilege to avoid compelled self-incrimination with regard to the facts underlying the conviction no longer exists."].)
Williams highlights the fact that Tucker had, in concert with his guilty plea, "waived his right to appeal." We do not believe this factor, which is not referenced in Fonseca, is dispositive. A defendant who waives his right to appeal may still challenge certain aspects of the plea proceedings or may attempt to withdraw the plea (and resulting waiver). (See, e.g., People v. Panizzon (1996) 13 Cal.4th 68, 84 [discussing circumstances where waiver of right to appeal held insufficient to preclude appeal of plea proceedings].)
Second, the appellate record further does not demonstrate that the Fifth Amendment issue was the sole reason that Williams's counsel declined to call Tucker as a witness. The record shows that at some point in the trial proceedings it became clear that Tucker not only would assert a Fifth Amendment privilege on the advice of counsel, but that even apart from that privilege, Tucker was disinclined to testify. Tucker's counsel stated that Tucker "would not testify, period,... given his future housing." Tucker's desire not to testify would have made Williams calling him, and overcoming his invocation of a Fifth Amendment privilege, a risky tactical proposition. Tucker, as a hostile witness, may have done a great deal of damage to Williams's case. This possibility was particularly significant because the prosecution's case against Williams was weaker than the case against the three codefendants. This would explain why Williams's counsel did not request, during trial, that the court rule on Tucker's prospective assertion of a privilege, but stated that he was "aware" that Tucker would be asserting the privilege and "I'm not going to call him." Thus, as Williams's counsel may have had valid tactical reasons for not calling Tucker, the ineffective assistance of counsel claim cannot be upheld on appeal. (Anderson, supra, 25 Cal.4th at p. 569 ["When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation."].)
This somewhat ambiguous reference can be taken, as the Attorney General suggests, to reference the possibility of prison retribution against Tucker should he testify that another gang member was responsible, or as a reflection of the fact that Tucker had been sentenced to life in prison without the possibility of parole and thus would be impervious to a contempt or perjury finding. In either case, it suggests that Tucker had no interest in testifying, a suggestion supported by the fact that Tucker could have, but did not, waive his privilege and testify.
The considerations discussed above also answer Williams's conclusory assertion that his counsel should have called "Tucker as a witness during the motion for a new trial." Williams's counsel may again have had valid tactical reasons to present Tucker's testimony in the form of a proffer or affidavit, rather than risk presenting his live testimony. Counsel could not predict what might come out in cross-examination were Tucker to testify to the trial court. He could, however, draft an affidavit or proffer that narrowly focused on the evidence counsel thought might be most beneficial to his claim.
In sum, because the appellate record does not demonstrate that Williams's counsel failed to call Tucker solely due to ignorance of the applicable law, deficiency is not established and we cannot reverse for ineffective assistance of counsel.
VI
The Trial Court Did Not Abuse Its Discretion in Responding to Rose's Posttrial Request for New Counsel
Rose contends that the trial court erred in its handling of his request, after the jury's verdict, to relieve his attorney. We evaluate this claim after setting forth the procedural history.
A. Procedural History
After the jury's verdict, Rose asked the trial court to relieve his counsel, Duncan; Rose stated Duncan was anything but a vigorous advocate. The trial court held a hearing under People v. Marsden (1970) 2 Cal.3d 118 (Marsden), at which it asked Rose to specify the reasons that he felt his counsel was deficient. Rose stated that Duncan failed to call three witnesses: Africa Bolden, Sharlene Bell and Peggy Ramos. Rose stated that the first two witnesses would have testified that "I didn't murder no one, which Michael Denmon told her that just [sic] wanted me here, wanted me in jail." With respect to Ramos (Rose's mother), Rose stated that she would corroborate his own testimony (going to his duress defense) about "receiving threats from people" who were "waiting in front of [her] house." Rose also stated that people during trial were "throwing dirt at me" about "being a gang member" and "bad person"; and that the prosecutor did not "even know where I'm from"; "they say I was from Harlem Crip[p]s or... Hoover, which one is it? The truth is, I never lived inside the Harlem area."
The trial court asked Duncan to address Rose's contentions. After noting that he had been practicing criminal law for "at least" 24 years, Duncan primarily addressed the decision not to call the three witnesses. Duncan stated that "[t]he two female witnesses are friends of [Rose's]" and they "made detailed statements, both of which were in my possession." Counsel stated that the statements merely paralleled Denmon's testimony that Denmon did not witness any active participation by Rose in the crimes. Since Denmon himself had made the same statements, Duncan said, the witnesses "added nothing to the posture of the defense."
After further questioning, Duncan stated that he may have only had one statement, but that he had been "told what they would say, which is, basically that Denmon had spoken to them and Denmon said that basically — to quote, 'Michael Rose didn't do anything, he was just there.' And that's what Denmon testified to, himself, in my opinion.
With respect to Ramos, Duncan stated that he had made a "tactical decision, which may or may not have been right," not to call her because there were "other statements that directly contradicted" Rose's testimony, and Ramos's testimony might have allowed the prosecution to admit the statements in rebuttal.
After hearing the explanations, the trial court denied Rose's "request to relieve Mr. Duncan." The court found that Duncan "has properly represented [Rose]. And I would expect that he would continue to do so for the duration of his representation...." In open session, Duncan next told the court that he believed Rose "has the right... to have other counsel appointed for him for the limited purpose of exploring a motion for new trial." (See People v. Smith (1993) 6 Cal.4th 684, 694, fn. 2 (Smith) ["Although the Marsden motion may be heard outside the presence of the prosecutor, any actual motion to withdraw the plea or for a new trial must, of course, be part of a fully adversarial proceeding."].) The court stated that it disagreed and asked Duncan for any authority that supported his statement; Duncan stated he did not "have a specific case on point." Duncan added, however, that his concern was that Rose had expressed various issues regarding ineffective assistance of counsel in the Marsden hearing and he did not want Rose to be "deprived of that record on appeal." The court asked if Duncan would "stipulate to unsealing... the Marsden hearing" and "have the record on appeal consist of the transcript of the Marsden hearing, as it may support a motion for new trial." Duncan stated: "Yes, I would like the Court to deem that motion made by my client, but not myself. Can the Court do that? That way I think we've cleaned up the record." Rose agreed to the procedure as well and stated he could not think of any additional grounds for a new trial motion. The court then ruled that to the extent the Marsden hearing could be construed as a motion for a new trial, the motion was denied.
B. Analysis
Rose argues that the trial court "erred in denying [his] request for new counsel" for purposes of filing a motion for a new trial because Rose made a " 'colorable claim of inadequacy of counsel.' " We conclude that Rose's showing is inadequate to warrant reversal on appeal.
" 'When, after trial, a defendant asks the trial court to appoint new counsel to prepare and present a motion for new trial on the ground of ineffective assistance of counsel, the court must conduct a hearing to explore the reasons underlying the request.' " (Smith, supra, 6 Cal.4th at p. 692.) "If the claim of inadequacy relates to courtroom events that the trial court observed, the court will generally be able to resolve the new trial motion without appointing new counsel for the defendant." (Id. at pp. 692-693.) "If, on the other hand, the defendant's claim of inadequacy relates to matters that occurred outside the courtroom, and the defendant makes a 'colorable claim' of inadequacy of counsel, then the trial court may, in its discretion, appoint new counsel to assist the defendant in moving for a new trial." (Id. at p. 693.)
Our Supreme Court has emphasized that "[a]ppointment of counsel for the purpose of arguing that previous counsel was incompetent, without an adequate showing by defendant, can have undesirable consequences." (Smith, supra, 6 Cal.4th at p. 695.) In particular, "[t]he spectacle of a series of attorneys appointed at public expense whose sole job, or at least a major portion of whose job, is to claim the previous attorney was, or previous attorneys were, incompetent discredits the legal profession and judicial system, often with little benefit in protecting a defendant's legitimate interests." (Ibid.)
The decision to appoint new counsel for purposes of a new trial motion "lies within the exercise of the trial court's discretion, which will not be overturned on appeal absent a clear abuse of that discretion." (Smith, supra, 6 Cal.4th at p. 696 [cautioning that "new counsel should not be appointed without a proper showing" (ibid.), but rather substitute counsel should only be appointed "when a defendant satisfies the trial court that adequate grounds exist" for a new trial motion based upon alleged ineffective assistance of counsel (id. at p. 695)].)
Rose contends that he made the requisite colorable showing of ineffective assistance of counsel because Duncan failed to persuasively rebut the following of Rose's allegations: (i) that Bell and Bolden would have testified that "Denmon told them that he wanted [Rose] to be in jail"; (ii) that he should have called Ramos to corroborate Rose's testimony; (iii) that evidence of Rose's gang membership went "unanswered at trial"; and (iv) the defense investigator did not speak to any potential defense witness except Ramos. We disagree.
With respect to Bell, Bolden and Ramos, Duncan demonstrated his awareness of each of these potential defense witnesses and expressed tactical reasons for failing to call each witness. It is well established that such "[t]actical disagreements" are insufficient to establish ineffective assistance of counsel. (See People v. Welch (1999) 20 Cal.4th 701, 728-729; People v. Lanphear (1980) 26 Cal.3d 814, 828-829 [" 'It is not sufficient to allege merely that the attorney's tactics were poor, or that the case might have been handled more effectively[.] Rather, the defendant must affirmatively show that the omissions of defense counsel involved a critical issue, and that the omissions cannot be explained on the basis of any knowledgeable choice of tactics.' "].) With respect to the gang evidence, Rose did not suggest that there was some evidence that would have rebutted the prosecution's gang evidence, but only that the prosecution's presentation was confused: "[T]hey say I was from Harlem Crip[p]s or... Hoover, which one is it? The truth is, I never lived inside the Harlem area." In fact, Rose's statements appear to concede that he was a member of the Hoovers gang, which is precisely what he testified to at trial where he admitted to being a longtime member of the "107 Hoovers." Rose also stated in the Marsden hearing that the defense investigator "hasn't contacted anyone either, just my mother." Rose did not explain, however, who else the investigator should have spoken to and why the failure to do so rendered Duncan's representation deficient. Again, this is an insufficient showing to mandate the appointment of new counsel. Rose, thus, fails to make the requisite showing of "a clear abuse of... discretion." (Smith, supra, 6 Cal.4th at p. 696.)
Rose emphasizes that Duncan never responded to his assertion that Bolden and Bell would have testified that Denmon also said he "wanted [Rose] in jail." We do not believe that this demonstrates that the trial court was required to grant Rose's request for new counsel. Rose's proffer of the witnesses' testimony suggests only that Denmon did not witness Rose murder anyone (which Denmon conceded), but nonetheless wanted Rose in jail. This followed directly from Denmon's own testimony that while he did not see Rose shoot anyone, Rose, at best, passively aided and abetted his codefendants in the charged offenses. Not surprisingly, then, Denmon wanted Rose punished — something Rose's counsel would be unlikely to want to explore in front of the jury. Rose's alternative explanation for the statement that Denmon "had a reason, other than the instant offenses, to wish [Rose] to remain in custody" is not sufficiently supported by Rose's proffer in the Marsden hearing transcript to alter our conclusion that the trial court acted within its discretion. (Italics added.) Of course, if there is evidence that Rose's trial counsel ignored potential testimony that would have revealed some unknown bias held by Denmon, that evidence is outside the appellate record and must be presented, if at all, through a petition for a writ of habeas corpus.
Rose also contends that the trial court erred because, after denying the request for new counsel, it nonetheless permitted Rose to make a new trial motion based on ineffective assistance of counsel, placing Rose "in an adversarial posture with his trial lawyer." This contention is not meritorious. As our Supreme Court has noted, "it is inevitable that counsel will be placed in a conflict position" with the defendant any time the court inquires into a postconviction request for a new trial based on ineffective assistance of counsel. (Smith, supra, 6 Cal.4th at p. 694.) Nevertheless, "[t]he court must allow the defendant to express any specific complaints about the attorney and the attorney to respond accordingly." (Ibid.) We also cannot fault the trial court for treating Rose's Marsden contentions, in the alternative, as a request for a new trial. The trial court took this step at counsel's (and Rose's) explicit request and for the purpose of insuring that Rose's grievances would be available as the basis for any appellate claims of ineffective assistance of counsel. If this process was error, it was invited by Rose and he cannot now assert it as a basis for reversal. (People v. Perez (1979) 23 Cal.3d 545, 549, fn. 3 ["The doctrine of invited error applies to estop a party from asserting an error when 'his own conduct induces the commission of error.' "].)
DISPOSITION
Affirmed.
WE CONCUR HUFFMAN, J., Acting P.J., McDONALD, J.