In re Arredondo

Filed 3/12/07 In re Arredondo CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

ORIGINAL PROCEEDING. Petition for writ of habeas corpus. Lisa B. Lench, Judge. Remanded.

Alan Stern, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.

________________________

Norberto Arredondo petitions this court for a writ of habeas corpus vacating his conviction for assault with a deadly weapon based on ineffective assistance of counsel. We remand this matter to the superior court for appointment of a referee to take evidence about the reasons Arredondos defense counsel did not call certain witnesses.

FACTS AND PROCEDURAL HISTORY

Mau Tran was walking home from work around midnight one evening in June 2004. At petitioners trial, Tran testified he turned onto petitioners street and heard loud music coming from petitioners house on the opposite side of the street. According to Tran, petitioner was standing in front of his house yelling something unintelligible to Tran. Tran claims he continued walking, but petitioner crossed the street without Trans noticing and came up behind him. Sensing someone to his rear, Tran testified he turned around to see petitioner standing about five feet away. Petitioner said what are you looking at? and pushed Tran backward a few feet. Seeing a beer can in petitioners hand, Tran replied petitioner was drunk and said he was going to call the police. The next thing Tran testified remembering, he was flat on his back with petitioner on top of him punching him in the face. Petitioner then got off and left Tran, who lost sight of petitioner.

Tran staggered to the house next door to ask for help. Someone inside heard Trans pleas and called 9-1-1. The police quickly arrived and found Tran covered in blood. Tran directed the police to petitioners house across the street. When the police questioned petitioner, he claimed he had been eating dinner and denied having been in a fight. Under repeated questioning, petitioner changed his story, however, and said he had been in his bedroom trying to sleep. Tran identified petitioner as his assailant and the police arrested him.

Petitioner was arraigned and pleaded not guilty to assault with a deadly weapon by means likely to produce great bodily injury. Before trial, petitioner sent a letter in September 2004 to his defense attorney discussing his defense. The letter stated:

The events of the day are based on Tran asking me if I knew where to get some drugs and after I told him I didnt, he then asked me for a cigarette. When I told him no he threatened me and then punched me in the face. I defended myself by getting him in a bear hug. Tran fell on his face and when he got up he left rapidly walking to the other side of the street. Before he crossed the street he fell face down on the street.

The letter identified seven witnesses whom petitioner claimed would support his defense: three neighbors, and four family members who had been visiting him the night of the fight. His letter emphasized that one family member his former sister-in-law Kelly Garcia was especially important because she heard Tran and petitioners entire conversation.

Several months later in February 2005 with his trial looming two months away, petitioner sent a second letter to his defense attorney. Expressing concern verging on alarm, petitioner pointed out that no one from his defense team had contacted his relatives who had seen the fight. He wrote:

As my trial date gets closer I am worried that none of my main witnesses have been interviewed by you or an investigator. As you remember my main witness to prove I am innocent is Kelly Garcia and her husband Gabriel.

At petitioners trial, defense counsel only called petitioners three neighbors to testify in his defense: Jorge Diaz, Marisol Zepeda, and Erik Estrada. None of them had paid close attention, however, to Trans and petitioners interaction or heard what they said to each other, gaps in their testimony that the prosecutor emphasized in closing argument.

Jorge Diaz testified he lived with Marisol Zepeda several houses from petitioners home. He and Zepeda had been standing outside their house when they saw petitioner standing in front of his house talking and gesturing to another man. They had not heard petitioner yell anything and were too far away to hear what he and the man were saying to each other. Diaz, who had not seen from which direction the other man came, was not paying a lot of attention to the two men when he saw them begin to push each other, as if they were playing. Not giving them much mind, he went inside his house.

Marisol Zepeda confirmed she was standing outside with Diaz when she saw petitioner in front of his house. She did not hear him yell anything, but she saw a man cross to petitioners side of the street. She did not focus on the man or petitioner again until a few minutes later when she saw them wrestling, but because roughhousing was commonplace in the neighborhood she did not think much of it. She went inside after seeing the man get up and return to the other side of the street.

Erik Estrada was outside his house when he saw petitioner standing across the street in front of his house. He did not hear petitioner yell anything, but he did see a man cross from Estradas side of the street and head toward petitioners house. He watched the man confront petitioner and then lunge at him. Petitioner grabbed the man in a bear hug and they fell onto the concrete. They then broke free of each other and the man ran away, but while doing so fell in the middle of the street. Estrada then went inside.

Petitioners defense lawyer did not call any family witnesses. In support of his petition for habeas corpus, petitioner submitted a separate declaration from each family member his former sister-in-law Kelly Garcia, her husband Gabriel, and petitioners nephews, Joseph and Jordan summarizing what they saw and heard that night. Their declarations revealed they would have testified they had been visiting petitioner that evening and were getting ready to leave for home as events unfolded. While petitioner stood on his front lawn smoking a cigarette, the four of them went to the back of the house where they had parked their car. Having forgotten her purse, Kelly Garcia returned inside the house to retrieve it. While there, she heard a manlater identified as Tranwho appeared to be under the influence of something ask petitioner in slurred speech where he could buy crystal methamphetamine. Petitioner said he did not know. The man then asked petitioner for a cigarette, but petitioner said he did not have any. The man called petitioner a liar because he had seen petitioner smoking. He demanded, Why are you lying to me. I saw you throw one out as I was crossing the street. Give me a cigarette or Ill take it from you. Petitioner told the man to respect his house because petitioners mother lived there. The man replied he was a member of the Asian Boys local gang and petitioner had better do as the man said because the neighborhood was the gangs territory. Putting his arms up and out, petitioner said he did not want any trouble.

At that point, the familys declarations begin to overlap the neighbors testimony. The declarations stated the man lunged at petitioner, who grabbed him in a bear hug. They fell down with petitioner falling on top of the mans head which drove his face onto the concrete. The two of them then arose and the man started off toward the other side of the street, but fell in the middle of the road. Finally and on this point the neighbors did not testify the family decided not to call the police because they feared gang retaliation.

Petitioner did not testify in his defense and the jury never heard from his family. As for the three neighbors whom petitioners defense counsel did call, the prosecutor asserted in closing argument that the jury should disregard their testimony because they admitted not paying close attention to petitioner and Tran and had not heard their conversation. The prosecutor correctly noted that Tran was the only witness who testified about what he and petitioner had said to each other.

The jury convicted petitioner of assault with a deadly weapon and of causing great bodily injury. The court sentenced petitioner to eight years in state prison. Petitioner filed a notice of appeal, and we appointed appellate counsel. Counsel filed a brief under People v. Wende (1979) 25 Cal.3d 436, stating he could not find any arguable issues for appeal (People v. Arredondo, B183101). We notified petitioner he could file a supplemental brief on any issues he wanted us to consider in his appeal. He filed a brief in pro per raising several issues for direct appeal (which we do not address in this habeas proceeding). After reading petitioners pro per brief, we invited petitioners appellate counsel to file a brief discussing the points petitioner raised. In the meantime, petitioner also filed a petition for habeas corpus alleging ineffective assistance of counsel for trial counsels failure to call petitioners family members as witnesses. Although we have not consolidated the habeas corpus proceeding with the appeal, in the interest of judicial efficiency we ordered appellate counsel and the Attorney General to expand their briefs to include the claim of ineffective assistance of counsel. We thereafter issued an order to show cause, set the habeas corpus petition for oral argument, and placed the appeal in abeyance.

DISCUSSION

Petitioner contends he received ineffective assistance of counsel because his defense attorney did not call any family member as a trial witness. In his petition for habeas corpus, petitioner attached the declarations of each family member describing in detail the fight between him and Tran. Unlike the neighbors who paid varying degrees of attention to Tran and petitioner, the family members claimed to have paid close attention to the events and conversation preceding the fight.

An attorney need not call every possible witness. (People v. Floyd (1970) 1 Cal.3d 694, 710 disapproved on another point in People v. Wheeler (1978) 22 Cal.3d 258, 287 fn. 36.) Ordinarily, a reviewing court may not second guess an attorneys choices about which witnesses to call because those decisions lie squarely in the realm of trial strategy and tactics. (Id. at pp. 709-710.) We therefore must reject claims of ineffective assistance of counsel if the record sheds no light on the reasons for counsels selection of witnesses. On a silent record, we may entertain an ineffective assistance claim only if we cannot conceive of a reasonable explanation for counsels choices (or the attorney failed to explain his decision after being asked to do so). (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) While a trial attorney has great leeway in choosing which witnesses to call, his decisions must be informed, which rests on an investigation of the facts. (People v. Bess (1984) 153 Cal.App.3d 1053, 1060.) It follows that failing to interview a witness and investigate the facts usually makes a decision about that witness uninformed. (In re Thomas (2006) 37 Cal.4th 1249, 1258; In re Hall (1981) 30 Cal.3d 408, 426.) As our Supreme Court noted in People v. Ledesma (1987) 43 Cal.3d 171, 215, if a trial attorneys decision is not founded on adequate investigation and preparation then his action--no matter how unobjectionable in the abstract--is professionally deficient. (Id. at p. 215.)

The record before us is inconclusive. Petitioners second letter to his defense attorney expressed concern that no member of the defense team had contacted his family members. After receiving this letter, trial counsel may have eventually interviewed petitioners family members, or might have had a reason not in the record for not calling any of them. (See e.g. 5 Witkin & Epstein, Cal. Crim. Law (3d ed. 2000) Crim. Trial,  241, p. 369 [after interviewing a witness defense counsel may conclude that the witness might easily be discredited and reject the witness as likely to cause more harm than good to the case.].) But the only evidence in the record petitioners letter points to there being no investigation, and thus no reasoned basis for counsels decision. As our Supreme Court recently cautioned,

What matters is the substance of the investigation whether counsel in fact explored those avenues reasonable counsel would have pursued in light of what was known and in light of the chosen defense strategy. It is because [counsel] did not do so, and not because of the manner of his investigation, that we find his performance deficient. (In re Thomas, supra, 37 Cal.4th at p. 1264.)

The Supreme Courts warning may very well apply here.

Respondent asserts that even if defense counsel inadequately represented petitioner by not calling any of his family to testify, counsels decision did not prejudice petitioner. (People v. Hill (1969) 70 Cal.2d 678, 690 [testimony of uncalled witness must be material, necessary, [and] admissible].) We conclude, however, that none of the reasons respondent gives for discounting the helpfulness of the familys testimony to petitioners defense is persuasive.

Respondent first asserts the familys testimony was cumulative to that of the three neighbors who testified. Not so. The family members were the only witnesses, other than Tran, who claimed to hear what Tran and petitioner said to each other before they fought. Indeed, the prosecutors observation in closing argument that only Tran testified about what started the fight belies respondents assertion.

Respondent also contends the familys testimony may have drawn attention to inconsistencies in defense counsels theory of the case. Respondent does not describe those discrepancies, but our review of the neighbors testimony and the familys declarations does not find any differences beyond what one might expect whenever several people view one event. (See Rashomon (1950), Akira Kurosawa.) For example, neighbor Zepeda saw Tran crossing the street after he broke free from petitioner but did not mention his falling in the middle of the road. The family members on the other hand, said Tran fell as he crossed the street and so did neighbor Estrada. None of the variations contradicts, however, the core of petitioners claim of self-defense: He did not cross the street to sneak up on Tran, and he did not yell anything before Tran crossed the street to confront him.

Respondent suggests the third possible reason defense counsel did not call family members might be he doubted their credibility. This assertion rests on speculation, however, because nothing in the record suggests counsel interviewed or investigated the family witnesses. He therefore could not assess their credibility.

CONCLUSION AND DISPOSITION

The record before us does not establish ineffective assistance of counsel as a matter of law, but the possibility certainly exists. People v. Bess, supra, 153 Cal.App.3d at pages 1059-1060 is potentially illustrative, and depending on the facts which await further development in this proceeding, pertinent. The Bess court observed in a case involving counsels failure to interview witnesses:

The record . . . demonstrates numerous witnesses (1) claim to have observed the [crime] in a light which casts doubtupon the prosecution theory and enhances the defense; (2) were willing to be interviewed by the defense; (3) were not interviewed nor called at trial. Assuming in hindsight, their individual or cumulative testimony would have affected the verdict, is trial counsels professed decision not to interview or call the witnesses a tactic within the range of reasonable competence? We must say no. (Ibid.)

We therefore remand this matter to the Los Angeles Superior Court.  The Presiding Judge of that court shall appoint Judge Lisa B. Lench, who presided over petitioners trial, or another judicial officer to act as a referee of the Court of Appeal.  The referee shall take evidence concerning the reasons defense counsel did not call petitioners family witnesses at trial and any reasonably related subjects. The California Appellate Project is directed within 10 days of the filing of this opinion to recommend for appointment by the Court of Appeal new counsel who shall represent appellant in the evidentiary hearing and any later appellate proceedings.

The matter shall be placed on the trial courts calendar for a status conference within 30 days, and the evidentiary hearing shall be held within 60 days of the status conference.  Within 30 days after the evidentiary hearing, the referee shall submit written findings to us and serve copies on all counsel of record. (In re Thomas,supra, 37 Cal.4th at p. 1256 [referee appointed to sort out conflicting credibility and evidentiary matters]; In re Visciotti (1996) 14 Cal.4th 325, 329, 335, 345 [referee appointed to take evidence on questions posed by reviewing court and filed report with reviewing court]; In re Weber (1974) 11 Cal.3d 703, 706; Levenson, Cal. Crim. Proc. (2006-2007 ed.)  30.25, pp. 1396-1397.) Based on those findings, we will then take further action as appropriate.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, ACTING P. J.

WE CONCUR:

BOLAND, J. FLIER, J.

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