Opinion
B226542
08-10-2011
THE PEOPLE, Plaintiff and Respondent, v. RODTRAVION WOODS, Defendant and Appellant.
The Fox Firm and Christopher A. Darden, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA359103)
APPEAL from a judgment of the Superior Court of Los Angeles County, Bob S. Bowers, Jr., Judge. Affirmed.
The Fox Firm and Christopher A. Darden, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Rodtravion Woods was convicted of attempted murder, shooting from a motor vehicle, and possession of a firearm as a felon. He contends that the trial court improperly excluded defense witnesses, that his trial counsel rendered ineffective assistance, and that the trial court improperly denied his request for new appointed counsel. We find no reversible error and affirm.
RELEVANT PROCEDURAL BACKGROUND
On September 11, 2009, an information was filed, charging appellant with the attempted murder of Delorian Forman (Pen. Code, §§ 187, subd. (a), 664), discharging a firearm from a motor vehicle (Pen. Code, § 12034, subd. (c)), and possession of a firearm as a felon (Pen. Code, § 12021, subd. (a)(1)).Accompanying the charges were gang allegations (§ 186.22, subd. (b)(1)(C)) and firearm use allegations (12022.53, subds. (b) - (e)). Appellant pleaded not guilty and denied the special allegations.
All further statutory citations are to the Penal Code, unless otherwise indicated.
On June 2, 2010, the jury found appellant guilty as charged, and found the special allegations to be true. On July 27, 2010, the trial court sentenced appellant to a term of imprisonment of 5 years plus 40 years to life.
FACTS
A. Prosecution Evidence
Inglewood Police Department Officer Kerry Tripp, a gang expert, provided testimony in support of the gang allegations accompanying the charges against appellant. According to Tripp, the Inglewood Family gang claims territory in Inglewood. Members often wear red clothing and caps, and some display tattoos of stars. As a "Blood" gang, the Inglewood Family is hostile to neighboring "Crip" gangs such as the Rollin' 30s. Kerry opined that appellant belonged to the Inglewood Family gang.
The incident underlying the charges against appellant occurred on July 3, 2009. At approximately 7:30 p.m., Los Angeles Police Department (LAPD) officers responded to a call regarding a shooting at 36th Street and 7th Avenue in Los Angeles, in territory claimed by the Rollin' 30s. There they found Delorion Forman lying on the ground with a bullet wound.
Forman testified as follows: He is a member of the Rollin' 30s gang. Approximately two weeks before July 3, 2009, he encountered appellant at a meeting of the Flawless Car Club, to which appellant belonged. The meeting occurred near 36th Street and 7th Avenue. At the meeting, Forman told appellant that he was from the Rollin' 30s, and asked "Where are you from?" Appellant initially replied that he did not "gang bang," but later stated that he was from "Family." When the pair exchanged words, other members of the car club intervened, and no physical altercation occurred.
On the evening of July 3, 2009, Forman saw appellant with a young woman at a car wash located at 52d Street and Crenshaw. Approximately 30 minutes later, at 7:30 p.m., Forman was seated in a car parked near 36th Street and 7th Avenue.Appellant drove up in a black car, stopped, and called to Forman. When Forman walked over to appellant's car, appellant said, "I heard you were looking for me." Forman answered, "If I was looking for you, I would have found you." Appellant then fired four or five gunshots, hitting Forman in the stomach. According to Forman, after appellant fired his gun, he said, "I'm B-Mac from Inglewood Family." Forman was hospitalized for three weeks due to his wound. According to Forman, he told investigating officers that the shooter was "B-Mac," who had stars tattooed on his arms and belonged to the Flawless Car Club.
On cross-examination, Forman admitted that he was smoking a marijuana cigarette while seated in the parked car.
At trial, Forman acknowledged that he had been placed in custody to secure his testimony, and that he had failed to comply with a subpoena for his attendance. He asserted that he did not answer the detectives who attempted to serve the subpoena because he "woke up late." On cross-examination, Forman stated that he told the detectives, "Fuck you and fuck the judge. I'm not going to court."
LAPD Officer Paul Fedynich testified that Forman, while hospitalized, provided a detailed account of the shooting and its perpetrator. When Fedynich first talked to Forman in the hospital, he believed that Forman described the shooter as "D-Mac." As a result, Fedynich suspected the shooter was Donte Woods, an Inglewood Family member whose moniker is "D-Mac." On July 7, 2009, he showed Forman a photographic "six-pack" that included Donte Woods, but not appellant. Forman identified no one in the six-pack as the shooter.
Fedynich decided to investigate another aspect of Forman's description of the shooter, namely, that the shooter belonged to the Flawless Car Club and sometimes drove a green Camaro. He found the car club's internet Web site, which displayed a green Camaro registered to appellant. Fedynich concluded that appellant was a potential suspect, and prepared a second six-pack. Forman viewed the six-pack, identified appellant as the shooter, and stated he was "a hundred percent sure" regarding the identification. Investigating officers searched appellant's residence and found several items of red clothing.
On July 21, 2009, appellant was arrested in the presence of his girlfriend, Lanica Flemming. Appellant had tattoos of stars on his arms. Nearby, officers located appellant's green Camaro and a black Chevy Malibu with "Hello Kitty" seat covers. Appellant identified Flemming in a photographic six-pack as the woman accompanying appellant at the car wash. Forman also identified photos of the Chevy Malibu as depicting the shooter's car. Forman told investigating officers he recognized the Chevy Malibu by the "Hello Kitty" inside it.
Melanie Caldwell, a custodian of records for T-Mobile, testified regarding the location of appellant's cell phone on July 3, 2009, based on incoming and outgoing calls through the phone. According to Caldwell, a cell phone's location at the time of a particular call can be determined by the cell phone tower that the call passed through, as cell phones seek the nearest tower, and a tower's range is no more than 15 city blocks. At 6:45 p.m., an outgoing call from appellant's cell phone occurred near 3125 West 54th Street in Los Angeles. Between 9:00 and 9:15 p.m., a series of calls occurred while the phone was on or near the 5, 710, and 10 Freeways. Of these, an outgoing call at 9:13 p.m. occurred while the phone moved from Los Angeles to Alhambra. Between 9:40 and 9:58 p.m., another series of calls occurred while it was in the Ontario-Fontana area. In addition, at 7:35 p.m., a call was made from the cell phone to appellant's voicemail on the phone, and after 8:48 p.m. several text messages were sent and received on the phone. According to Caldwell, neither cell phone calls to voicemail systems nor cell phone text messages generally create records showing the location of a cell phone.
B. Defense Evidence
Appellant testified as follows: He had never been a member of any gang, including the Inglewood Family. The four stars tattooed on his arms represented his four sisters, and the items of red clothing found in his residence belonged to relatives or were gifts from relatives.
Appellant acknowledged that he had been convicted of two prior felonies, namely, willful discharge of a firearm or BB gun (§ 246) and forgery (§ 470, subd. (d)).
In 2009, appellant joined the Flawless Car Club as a hobby. Although Forman did not belong to the club, he hung out in the area and often attended meetings. Appellant first met Forman at a club meeting two or three months before the shooting. Later, appellant talked to Forman amicably on other occasions.
On July 3, 2009, appellant intended to celebrate the July 4th holiday in Las Vegas with relatives. His plans included a party in a restaurant in Ontario on the evening of July 3. At 5:00 p.m., he and his girlfriend, Lanica Flemming, attended the car wash, which the car club had organized to raise funds for the funeral of a club member. As appellant's cell phone needed charging, he used a charger in a car owned by a friend, Derrick Smith. Because appellant was in a rush to begin his trip to Las Vegas, he left his cell phone in Smith's car.
Appellant drove to Ontario in Flemming's car, a black Chevy Malibu with "Hello Kitty" seat covers. Accompanying appellant were his friend, Devin Bush, as well as Flemming and her sister. As they began their trip, they stopped briefly at Bush's residence in Los Angeles. They left Bush's residence at approximately 6:30 p.m., and arrived at the party in Ontario between 8:10 and 8:15 p.m.
During the trip to Ontario, appellant borrowed a cell phone to call and send text messages to his own phone. In response, appellant received a text message from Smith. Appellant told Smith that he would pay him $50 and "detail" his car if Smith brought appellant's phone to Ontario. Smith agreed to do so. Shortly after 9:00 p.m., appellant briefly left the party, met Smith in Ontario, retrieved his phone, and returned to the party. At approximately 10:30 p.m., he left the party to go to Las Vegas.
During cross-examination, appellant admitted that he placed a call from his cell phone at 9:13 p.m. on July 3. He maintained that he made the call from Ontario, but on further questioning, acknowledged that the T-Mobile records showed the 9:13 p.m. call passed through a cell phone tower in Los Angeles. Appellant also acknowledged that he once told Officer Fedynich that Flemming probably drove her black Chevy Malibu near 36th Street and 7th Avenue on the evening of the shooting, and that Flemming often carried his cell phone with her. Appellant stated that when he spoke to Fedynich, he was confused regarding the date of the shooting.
Terry Easter, Devin Bush's mother, testified that on July 3, 2009, appellant and Bush stopped at her home for approximately 15 minutes, and left before 6:30 p.m. Reginia Mikell and Tiana Shiel, appellant's mother and sister, testified that at approximately 8:30 p.m., appellant arrived at a party in Ontario that they attended. Appellant was accompanied by Bush, Flemming, and Flemming's sister. According to Mikell, appellant borrowed her car, briefly left the party, returned, and departed for Las Vegas after the party ended around 10:00 p.m.
John Cosgrove, a computer systems engineer, opined that the call to appellant's voicemail at 7:35 p.m. was not placed from appellant's cell phone, as T-Mobile's records associated no cell phone tower with the call. He further noted that the T-Mobile records showed that the cell phone left Los Angeles, moved through Alhambra, and eventually arrived in the Fontana-Ontario area.
On cross-examination, Cosgrove acknowledged that according to the T-Mobile records for July 4 and 5, 2009, when appellant admitted possessing the cell phone, the phone's voicemail was checked many times, yet the T-Mobile records associated no cell towers with some of these calls. Cosgrove also testified that the call from appellant's cell phone at 9:13 p.m. on July 3, 2009, initially relied on a tower in Los Angeles and then a tower in Alhambra. According to Cosgrove, T-Mobile's records showed that the 9:13 p.m. call occurred in or around Alhambra, not Ontario.
On re-direct examination, Cosgrove suggested that the T-Mobile records might contain some errors or "anomalies," but he identified none related to the 9:13 p.m. call.
DISCUSSION
Appellant contends (1) that the trial court erroneously excluded testimony from two defense witnesses, (2) that his trial counsel rendered ineffective assistance of counsel, and (3) that the trial court improperly denied his request for new appointed counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). For the reasons explained below, we find no reversible error.
A. Underlying Proceedings
As appellant's contentions rely on an intertwined set of facts, we begin by summarizing the key proceedings related to the contentions. On May 21, 2010, prior to the selection of the jury, the prosecutor told the trial court that the parties intended to complete the presentation of evidence by Friday, May 28. Appellant's counsel, Edward Mizrahi, did not dispute this estimate.
Shortly before noon on Thursday, May 27, the prosecution completed its case-in-chief. When the trial court asked Mizrahi to begin the defense case in the afternoon, Mizrahi said that his expert was unavailable until Friday and that some "lay" witnesses could not testify before Tuesday of the following week. Noting that Mizrahi had previously stated he was ready for trial and that the jury had been told the presentation of evidence would conclude on Friday, the court directed Mizrahi to present his available witnesses after the lunch break.
At the beginning of the afternoon session on Thursday, May 27, the prosecutor objected to testimony that Mizrahi planned to elicit from Anthony Jones in order to impeach Forman. According to the prosecutor, "in summary," Jones was to testify that Forman told Jones that appellant "didn't shoot him, but somebody else did." The prosecutor argued that Jones's proposed testimony was inadmissible hearsay under Evidence Code sections 770 and 1235, which ordinarily bar extrinsic evidence of statements inconsistent with a witness's testimony unless the witness was questioned regarding the statements or the witness has not been excused when the extrinsic evidence is admitted. As the prosecutor noted, no one examined Forman regarding the purported statements to Jones before Forman had been excused as a witness. After determining that Mizrahi was aware of Jones when Forman testified, the trial court excluded the proposed testimony. Jones never appeared as a witness.
On the afternoon of Friday, May 28, shortly before Mizrahi presented testimony from Cosgrove, his final witness, Mizrahi informed the court that appellant felt strongly that Lavina Gonzalez should be permitted to testify, even though she could not appear until the following week. The trial court declined to "wait" for Gonzalez, stating that her testimony was offered solely to corroborate Mikell's and Shiel's testimony that appellant attended a party in Ontario on the evening of the shooting. The court explained: "I don't believe that [the absence of Gonzalez's testimony] would in any way put the defense in detriment . . . because two other witnesses testified [regarding] that same issue."
After the jury returned its verdict, Mizrahi filed a motion for a new trial, contending that the trial court erred in excluding the proffered impeachment testimony from Jones, whom the motion characterized as Forman's "fellow gang member[]." According to the motion, Jones would have testified as follows: "[F]ollowing Forman's hospital discharge[,] he boasted to his group of gang members . . . that he got into it with some 'Rollin 20's Black Pea Stones' gang members and got shot. Allegedly[,] Jones was with Forman at the Crenshaw mall a month prior to the shooting; . . . they met some Black Pea Stone gang member[s] and Forman got into a yelling challenge with one of them. One opposing gang member said he would get Forman later; . . . the logo for [the] Black Pea Stones [is] the star tattoo on their arms."
On June 29, 2010, at the beginning of the hearing on the new trial motion, appellant requested new appointed counsel under Marsden. During the hearing on this request, appellant contended that Mizrahi had rendered ineffective assistance by failing to present several witnesses. Appellant asserted: "I have at least five witnesses . . . that I subpoenaed that I was not able to use." One of these witnesses appears to be Jones, as appellant argued that Mizrahi improperly failed to obtain impeachment testimony from Jones.
The remaining witnesses were alibi witnesses whose presence Mizrahi purportedly failed to secure. Of these witnesses, the sole person appellant specifically named was Gonzalez, whom he characterized as the guest of honor at the party in Ontario. Appellant argued that the jury was likely to find Gonzalez credible because she was not related to him. According to appellant, the alibi witnesses did not appear at trial because Mizrahi told them that they were not needed until Wednesday, June 2, even though the presentation of his defense had to conclude on Friday, May 28. Appellant attributed this scheduling error to Mizrahi's mistaken understanding of the court orders regarding the deadline for completing the presentation of evidence.
Regarding Gonzalez's absence, Mizrahi responded that after the presentation of evidence concluded on Friday, May 28, Mizrahi told Gonzalez not to attend the trial because "all witnesses had appeared that were being permitted to appear." Mizrahi also suggested that Gonzalez's testimony would have added little to the other defense witnesses' testimony. Regarding the excluded testimony from Jones, Mizrahi noted only that the new trial motion was pending before the court.
In denying the Marsden request, the trial court concluded that appellant had not presented specific grounds establishing "a substantial impairment of his right to counsel." The court determined that the absence of Gonzalez's testimony was "insignificant," in view of the other defense evidence, and it rejected appellant's remaining contentions as general disagreements over "case management or trial tactics." The court subsequently denied the new trial motion, reasoning that its ruling at trial was correct.
B. Exclusion of Testimony
Appellant maintains that the trial court improperly prevented him from presenting the proferred testimony from Jones and Gonzalez. As explained below, we see no error in the trial court's rulings.
1. Jones's Proposed Testimony
The propriety of the ruling regarding Jones's testimony hinges on the application of Evidence Code sections 1235 and 770. Section 1235 provides: "Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770." Section 770 states: "Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: [¶] (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [¶] (b) The witness has not been excused from giving further testimony in the action." The admissibility of statements under sections 1235 and 770 is consigned to the trial court's discretion. (People v. Avila (2006) 38 Cal.4th 491, 579.)
All further statutory citations in this section (pt. B.1.) are to the Evidence Code.
Under these provisions, inconsistent statements by a witness may be admitted and relied upon as substantive evidence when the foundational requirements stated in section 770 are satisfied. (People v. Brown (1995) 35 Cal.App.4th 1585, 1596-1597.) However, if the requirements are not satisfied, such statements are properly excluded unless there are exceptional circumstances, that is, unless "the interests of justice otherwise require" their admission. (§ 770; see People v. Alexander (2010) 49 Cal.4th 846, 909.) Regarding these exceptional circumstances, the Law Revision Commission has stated: "Where the interests of justice require it, the court may permit extrinsic evidence of an inconsistent statement to be admitted even though the witness has been excused and has had no opportunity to explain or deny the statement. An absolute rule forbidding introduction of such evidence where the specified conditions are not met may cause hardship in some cases. For example, the party seeking to introduce the statement may not have learned of its existence until after the witness has left the court and is no longer available to testify." (Cal. Law Revision Com. com, 29B Pt. 2 West's Ann. Evid. Code (1995 ed.) foll. § 770, p. 423.) In People v. Collup (1946) 27 Cal.2d 829, 836, our Supreme Court explained that satisfying the foundational requirements is not necessary when doing so "is impossible . . . due to no fault of the party urging the impeachment."
Here, we see no abuse of discretion in the trial court's ruling. When Mizrahi sought to introduce Jones's testimony, the trial court had already excused Forman, who had not been examined regarding the purported statements to Jones. Furthermore, as Mizrahi was aware of Jones's potential testimony before Forman testified, no special circumstances triggered the exception to the foundational requirements stated in section 770. Accordingly, the trial court properly barred the proposed testimony from Jones. (People v. Alexander, supra, 49 Cal.4th at p. 909 [inconsistent statements of witness were inadmissible under sections 1235 and 770 when no party examined witness regarding them before witness was excused].)
Appellant contends that Jones's testimony falls within the "interests of justice" exception to the foundational requirements, arguing that appellant was denied the benefit of Jones's testimony because Mizrahi failed to satisfy the requirements. We decline to construe the "interests of justice" exception broadly to encompass such circumstances, as doing so would effectively eviscerate the foundational requirements in section 770. Rather, as noted above, the exception is applicable only in limited situations, for example, when the party seeking to admit the impeachment testimony could not satisfy the requirements. That is not the case here.
Pointing to People v. Maki (1985) 39 Cal.3d 707 (Maki),appellant also contends that Jones's testimony was admissible, even though it fell within no recognized exception to the hearsay rule. The crux of his contention is that Jones's testimony "had sufficient indicia of trustworthiness" to secure its admission.
Appellant has forfeited this contention, as he never raised it before the trial court. (People v. Ervine (2009) 47 Cal.4th 745, 783.) However, we would reject it were we to consider it on the merits. In Maki, our Supreme Court held that hearsay falling outside the recognized exceptions to the hearsay rule may be admitted in probation revocation hearings when it displays sufficient indicia of reliability. (Maki, supra, 39 Cal.3d at pp. 714-717.) Here, the underlying proceeding was a criminal trial, not a probation revocation hearing. Moreover, as explained below, Jones's proposed testimony lacked the requisite indicia of reliability.
Our inquiry into the proposed testimony's reliability is controlled by the offers of proof regarding the testimony (§ 354). As the court explained in People v. Schmies (1996) 44 Cal.App.4th 38, 53, "[a]n offer of proof should give the trial court an opportunity to change or clarify its ruling and in the event of appeal would provide the reviewing court with the means of determining error and assessing prejudice. [Citation.] To accomplish these purposes an offer of proof must be specific. It must set forth the actual evidence to be produced and not merely the facts or issues to be addressed and argued." (Italics added.) We therefore limit our analysis to the specific evidence identified in the offers of proof. (Id. at p. 54.)
When the trial court first ruled on the prosecutor's objection to Jones's proposed testimony, the sole characterization of the testimony came from the prosecutor, who stated only that Jones would testify that Forman told him that someone other than appellant was the shooter. Nothing in this skeletal description supports the reliability of the testimony. Later, Mizrahi provided a detailed description of Jones's proposed testimony in the new trial motion, which effectively asked the trial court to reconsider its prior ruling. According to Mizrahi, Jones would have testified that after leaving the hospital, Forman "boasted" to Jones and other members of Forman's gang that he was wounded during a shootout with another gang. As boasting is ordinarily not regarded as facially trustworthy, Mizrahi's offer of proof did not establish the requisite indicia of reliability. In sum, the trial court did not err in excluding Jones's proposed testimony.
2. Gonzalez's Proposed Testimony
Although appellant does not identify the precise ruling that purportedly denied him an opportunity to present Gonzalez as a witness, he appears to contend that the trial court, in declining to "wait" for Gonzalez on Friday, May 28, 2010, improperly denied a continuance to facilitate the presentation of her testimony the following week. We disagree.
Generally, continuances may be granted "only upon a showing of good cause." (§ 1050, subd. (e).) To obtain a continuance of a criminal trial for the purpose of securing a witness's testimony, the moving party must show that he exercised due diligence to secure the witness's presence, the expected testimony was material and not cumulative, the testimony could be obtained within a reasonable time, and the facts to which the witness would testify could not otherwise be proven. (People v. Roybal (1998) 19 Cal.4th 481, 500-501, 504.) The trial court's ruling on a motion for a continuance is reviewed for abuse of discretion. (Id. at p. 505.)
Here, as the trial court noted, Gonzalez's testimony was cumulative and not essential to appellant's defense, as the offer of proof -- insofar as it is reflected in the record -- showed only that she would testify that appellant attended a party in Ontario on the night of the shooting. In declining to "wait" for Gonzalez, the trial court concluded that the absence of her testimony was not detrimental to appellant's defense because it was offered only to corroborate the testimony of appellants' other alibi witnesses. We see no error in this determination. In sum, the trial court did not improperly deny appellant an opportunity to present Gonzalez as a witness.
Appellant's opening brief asserts that Gonzalez would have testified that she saw appellant in Ontario "minutes after the shooting." Nothing in the record supports this statement. The description of Gonzalez's proposed testimony in the record does not establish the time at which she purportedly saw appellant at the party in Ontario.
For the same reasons, we reject appellant's contention that the denial of a continuance contravened his right to confront witnesses under the Sixth Amendment of the United States Constitution. As our Supreme Court has explained, when a trial court properly exercises its discretion under state law in denying a continuance, there is ordinarily no violation of a defendant's federal constitutional rights. (People v. Samayoa (1997) 15 Cal.4th 795, 840-841.)
C. Ineffective Assistance of Counsel
Appellant contends that Mizrahi rendered ineffective assistance of counsel in failing to secure the admission of Gonzalez's and Jones's proposed testimony, and in failing to object to certain testimony from Officer Tripp, the prosecution's gang expert. For the reasons explained below, we conclude appellant has failed to demonstrate constitutionally ineffective assistance of counsel.
"In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was 'deficient' because his 'representation fell below an objective standard of reasonableness . . . under prevailing professional norms.' [Citations.] Second, he must also show prejudice flowing from counsel's performance or lack thereof. [Citations.] Prejudice is shown when there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.]" (People v. Jennings (1991) 53 Cal.3d 334, 357.)
1. Officer Tripp's Testimony
We begin with appellant's contention regarding Officer Tripp's testimony. Appellant maintains that Mizrahi rendered ineffective assistance by failing to object to Officer Tripp's expert opinion regarding appellant's "specific intent" in shooting Forman. We reject this contention.
The limits on expert opinion regarding a gang member's state of mind in conducting crimes for the gang's benefit were examined in People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew) and People v. Gonzalez (2006) 38 Cal.4th 932 (Gonzalez). In Killebrew, police officers searched three cars close to the site of a gang shooting, and discovered a gun in one car and a second gun near the other two cars. (Killebrew, supra, 103 Cal.App.4th at p. 648.) All the cars had been occupied by members of a particular gang. (Ibid.)The defendant, a member of the gang, was found standing near one of the cars, and was charged with conspiracy to possess a firearm. (Id. at pp. 647-648, 650.) At trial, a gang expert testified that the defendant, as a gang member, was aware of the guns and had the specific intent to possess them. (Id. at p. 658.) The appellate court concluded that this was improper expert opinion on ultimate facts. (Ibid.)
After Killebrew, our Supreme Court repudiated any suggestion in that case that gang experts may not offer opinions in response to hypothetical questions framed in terms of facts established by the prosecution. In Gonzalez, the defendant, a gang member, entered territory claimed by a rival gang and shot two men working on a driveway. (Gonzalez, supra, 38 Cal.4th at p. 938.) Several individuals told the police the defendant was the shooter, but disclaimed their statements at trial. (Id. at pp. 939-940.) During the trial, the prosecutor asked the gang expert hypothetical questions regarding whether gang members would intimidate witnesses under the circumstances established by the evidence. (Id. at pp. 944-945.) The expert opined that they would do so. (Id. at p. 945.)
Relying on Killebrew, the defendant argued that the expert's opinions were inadmissible. (Gonzalez, supra, 38 Cal.4th at p. 946.) Our Supreme Court rejected this contention, stating: "[The gang expert] merely answered hypothetical questions based on other evidence the prosecution presented, which is a proper way of presenting expert testimony." (Ibid.) Following Gonzalez, several courts have concluded that an expert may properly opine on whether a crime was committed for a gang's benefit. (People v. Williams (2009) 170 Cal.App.4th 587, 621; People v. Martinez (2008) 158 Cal.App.4th 1324, 1332-1333; People v. Garcia (2007) 153 Cal.App.4th 1499, 1512-1514.)
Here, the prosecutor posed a hypothetical question to Tripp framed in terms of the evidence regarding the facts of the shooting, including the gang challenges that preceded it. After reciting these facts, the prosecutor asked, "Do you have an opinion as to whether that crime of shooting the individual, which also includes shooting from the car . . . [and] possession of a firearm, whether those three crimes were committed for the benefit of, at the direction of, [the] Family . . . and with the specific intent to promote its activities." Tripp answered, "My opinion is that the crimes . . . would have been committed for the benefit of the Inglewood Family."
Appellant contends that the question was subject to a meritorious objection under Killebrew, as it effectively sought Tripp's opinion regarding appellant's specific intent. However, it is unnecessary for us to address this contention, as Tripp's answer addressed only whether the listed crimes were committed for the benefit of the gang, an admittedly properly subject of expert testimony. Accordingly, even if Mizrahi had objected to the question and the trial court had asked the prosecutor to restate it without using the term "specific intent," the jury would have heard the same opinion. As the opinion itself was proper, appellant has failed to demonstrate ineffective assistance of counsel.
2. Gonzalez's Testimony
We turn to appellant's contention that Mizrahi rendered ineffective assistance in failing to present Gonzalez as a witness. Generally, defense counsel is accorded considerable latitude in the selection of a defense strategy (People v. Cunningham (2001) 25 Cal.4th 926, 1004-1007), provided that it is informed by adequate investigation and preparation (In re Marquez (1992) 1 Cal.4th 584, 602). To show deficient performance, appellant must "demonstrate[] that the record affirmatively discloses that counsel's acts or omissions cannot be explained on the basis of any knowledgeable choice of tactics. [Citation.]" (People v. Shoals (1992) 8 Cal.App.4th 475, 501.) Because the decision to call a witness is a matter of trial tactics, a reviewing court generally will not "second guess" this decision. (People v. Mitcham (1992) 1 Cal.4th 1027, 1058-1059.)
Here, the record does not establish that Mizrahi's conduct regarding Gonzalez fell below professional norms. During trial, Mizrahi stated that Gonzalez was unable to appear until the following week; later, during the Marsden hearing, he stated that after the close of the presentation of evidence, on Friday, May 28, he told Gonzalez not to attend the trial because she would not be permitted to testify. As the record does not "affirmatively disclose[]" that Mizrahi could have secured Gonzalez's appearance by Friday, appellant has failed to demonstrate ineffective assistance of counsel. (People v. Shoals, supra, 8 Cal.App.4th at p. 501.)
More importantly, appellant has not demonstrated that the absence of Gonzalez's testimony was prejudicial. The failure to present potentially exculpatory evidence does not constitute ineffective assistance of counsel unless it is reasonably likely that the trial's result would have been different had the evidence been admitted. (People v. Vines (2011) 51 Cal.4th 830, 881.) Applying this standard, we conclude that it is unlikely the admission of Gonzalez's testimony would have altered the outcome of the trial. Her testimony was cumulative, as it was offered to corroborate Mikell and Shiel, appellant's alibi witnesses (see pt. B.2., ante). Moreover, appellant's alibi defense was fatally undermined by evidence Gonzalez's testimony could not refute.
To establish his alibi defense, appellant provided a detailed account of his activities on the evening of the shooting, which occurred at approximately 7:30 p.m. According to appellant, he left his friend's Los Angeles residence at about 6:30 p.m., arrived at the party in Ontario between 8:10 and 8:15 p.m., retrieved his cell phone in Ontario shortly after 9:00 p.m., made a call from his cell phone at 9:13 p.m., and left the party for Las Vegas at approximately 10:30 p.m. However, T-Mobile's cell phone records showed that the 9:13 p.m. call occurred while appellant's cell phone was moving from Los Angeles into Alhambra. Appellant's own expert testified that the call took place in the Alhambra area, not Ontario. This unchallenged fact discredited appellant's alibi testimony, as well as Mikell's and Shiel's testimony that appellant arrived at the party in Ontario at approximately 8:30 p.m. Nothing in Gonzalez's testimony could have remedied this defect in appellant's alibi defense. Accordingly, we reject appellant's claim of ineffective assistance of counsel in connection with Gonzalez's testimony.
3. Jones's Testimony
Appellant further contends that Mizrahi rendered ineffective assistance in failing to secure the admission of Jones's impeachment testimony. He maintains that because the prosecution case relied primarily on Forman's testimony, the absence of Jones's testimony materially impaired his defense. We disagree. Although Mizrahi's conduct appears to have fallen below professional norms, we find no reasonable likelihood that it affected the trial's outcome.
Generally, to support a claim of ineffective assistance of counsel, a defendant must show that trial counsel had no "reasonable tactical basis for his action or inaction." (People v. Jones (2003) 30 Cal.4th 1084, 1122.) Here, the record affirmatively establishes that Mizrahi lacked such a basis for his failure to satisfy the foundational requirements for the admission of Jones' testimony. Mizrahi was aware of Jones's proposed testimony before Forman testified, and he intended to call Jones as a witness at trial; only Mizrahi's failure to examine Forman regarding the purported statements he made to Jones prevented Mizrahi from presenting Jones's testimony. The record appears to foreclose the existence of a reasonable tactical basis for Mizrahi's failure to conduct the requisite examination. (See People v. Guizar (1986) 180 Cal.App.3d 487, 492, fn. 3.)
Nonetheless, Mizrahi's conduct was not prejudicial, as there is no reasonable probability that Jones's testimony would have eroded Forman's credibility or otherwise affected the trial's outcome. Although Forman was the prosecution's sole eye witness to the shooting, the other evidence at trial showed that Forman's account of the shooting and identification of appellant as the shooter had remained stable and resolute since the shooting. According to the offer of proof in appellant's new trial motion, Jones would have testified that after Forman was released from the hospital, he boasted to fellow gang members that he suffered his wound in a shootout with a gang to which appellant does not belong. However, Forman's trial testimony was materially identical to the account of the shooting that he first gave to investigating officers while hospitalized, and he repeatedly identified appellant as the shooter from the time he was hospitalized immediately following the shooting.
At trial, Officer Fedynich testified that Forman provided a detailed account of the shooting when Fedynich first interviewed him in the hospital shortly after the incident. According to Fedynich, Forman told him that he first saw the shooter at a car wash. The shooter and a girl were in a black Malibu. Later, while Forman was seated in a car near 36th Street and 7th Avenue, the shooter drove up in a black car, called Forman over, and fired at him. Forman said that the shooter was a gang member with a moniker that Fedynich heard as "D-Mac."
Fedynich further testified that Forman made no identification upon viewing a six-pack that included a gang member whom Fedynich knew as "D-Mac," However, when Fedynich later showed him a second six pack in the hospital, Forman stated that he was "a hundred percent sure" that appellant's photo depicted the shooter. While still hospitalized, Forman also identified Flemming in a six-pack as the woman accompanying appellant at the car wash, and identified photos of her Chevy Malibu as depicting the shooter's car.
The record thus discloses that while hospitalized, Forman not only identified appellant as the shooter, but provided a full and detailed account of the shooting matching his trial testimony. Moreover, Forman reaffirmed his identification of appellant as the shooter at the preliminary hearing and trial. In view of the stability and firmness of Forman's account of the crime and identification of appellant as the perpetrator, it is not reasonably likely that Jones's testimony would have altered the trial's outcome.
Nor does the other trial evidence establish the reasonable likelihood of a different outcome had Jones testified. As explained above (see pt. C.2., ante), appellant's alibi defense was fatally undermined by a critical defect unrelated to Jones's proffered testimony: the T-Mobile records showing that the 9:13 p.m. call originated in the Los Angeles-Alhambra area discredited the testimony from appellant and his alibi witnesses that he was in Ontario at the time of the call. Furthermore, as appellant testified that his relationship with Forman had been amicable prior to the shooting, nothing in the record suggests why Forman, while hospitalized, might have invented an account of the crime that falsely identified appellant as the perpetrator. In sum, appellant has failed to demonstrate that Mizrahi rendered ineffective assistance of counsel in connection with Jones's testimony.
D. Marsden Request
Appellant contends that the trial court erred in denying his request for new appointed counsel, which occurred after the jury returned its verdicts, but before appellant was sentenced. We disagree.
Because defendants are entitled to competent representation at all times, they may seek new appointed counsel at any stage of the proceedings under the standard established in Marsden and its progeny. (People v. Memro (1995) 11 Cal.4th 786, 859, overruled on another ground in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2; 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 223, pp. 349-350.) The Marsden standard requires the defendant to show that "a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation]," that is, "that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation]." (People v. Smith (1993) 6 Cal.4th 684, 696.) To carry this burden, the defendant must identify specific instances of inadequate performance. (People v. Welch (1999) 20 Cal.4th 701, 772.) Furthermore, tactical disagreement, by itself, "is insufficient to compel discharge of appointed counsel." (People v. Cole (2004) 33 Cal.4th 1158, 1192.)
Generally, a Marsden motion, though based on past events, is "forward-looking[,] in the sense that counsel would be substituted in order to provide effective assistance in the future." (People v. Smith, supra, 6 Cal.4th at p. 695, italics deleted.) Accordingly, when the defendant requests new counsel after the verdict has been rendered but before sentencing, the trial court may properly grant the request upon "a proper showing . . . that counsel can no longer provide effective representation, either for the purpose of sentencing or of making a motion for new trial based on incompetency of counsel." (People v. Dennis (1986) 177 Cal.App.3d 863, 871.) The decision to appoint new counsel is consigned to the trial court's discretion. (People v. Smith, supra, 6 Cal.4th at p. 696; People v. Dennis, supra, 177 Cal.App.3d at p. 869.)
Because appellant was obliged to identify specific instances of inadequate performance in seeking new appointed counsel, we limit our analysis to Mizrahi's conduct regarding Gonzalez and Jones, as they were the only witnesses appellant named and discussed at the Marsden hearing. We see no error in the trial court's determination that appellant failed to demonstrate "a substantial impairment of his right to counsel."
Although appellant also contended that Mizrahi performed inadequately in connection with other matters, he has not raised these contentions on appeal, and thus has forfeited them.
During the trial and at the Marsden hearing, Mizrahi stated that he was unable to secure Gonzalez's attendance at trial before the close of the presentation of evidence on Friday, May 28; in addition, he suggested that Gonzalez's testimony was cumulative. The trial court properly credited Mizrahi's remarks as showing that appellant's contention concerned only "case management or trial tactics," notwithstanding appellant's assertions that Gonzalez's testimony was critical and that her failure to appear was due to Mizrahi's misunderstanding of the court orders regarding the trial schedule. (People v. Jones (2003) 29 Cal.4th 1229, 1245 [to the extent there is a credibility question between defendant and defense counsel at a Marsden hearing, the trial court may accept defense counsel's explanation].) As noted above, tactical decisions regarding the presentation of witnesses do not support the substitution of newly appointed counsel.
Although Mizrahi offered no explanation for his failure to secure the admission of Jones's testimony, the trial court did not abuse its discretion in concluding that Mizrahi's conduct did not require the substitution of new appointed counsel. As explained above (see pt. C.3, ante), although Mizrahi may have erred in connection with Jones's testimony, there is no reasonable likelihood that this mistake affected the trial's outcome. Because the mistake occurred in the courtroom during the trial, the trial court was well positioned to determine that it implied no inadequacy in Mizrahi's future representation. (See People v. Smith, supra, 6 Cal.4th at pp. 692-693.)
Furthermore, even if the trial court incorrectly declined to appoint new counsel, appellant has shown no prejudice from the ruling. The improper denial of a Marsden request is not reversible error when it is "harmless beyond a reasonable doubt." (People v. Henning (2009) 178 Cal.App.4th 388, 405.) Here, the denial of new counsel implicated only (1) a potential new trial motion based on ineffectiveness of counsel and (2) appellant's sentencing. For the reasons described above (see pt. C., ante), a new trial motion based on ineffective assistance would have lacked merit. Furthermore, appellant has not shown that Mizrahi's continued representation adversely affected his sentencing in any manner. In sum, appellant's Marsden request was properly denied.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J. We concur: EPSTEIN, P. J. SUZUKAWA, J.