P. v. Cabrera
Filed 6/10/13 P. v. Cabrera CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
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purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
GABRIEL MARTINEZ
CABRERA,
Defendant and
Appellant.
G045917
(Super. Ct.
No. 10CF0483)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, Richard W. Stanford, Jr., Judge. Affirmed.
E. Thomas Dunn, Jr., for
Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Melissa Mandel and Laura A. Glennon,
Deputy Attorneys General, for Plaintiff and Respondent.
The
main issue in this case is identification.
Appellant Gabriel Martinez Cabrera contends there is
jury’s finding he was the person who heisted a cargo truck from a United Parcel
Service (UPS) facility in Orange County. He also claims his attorney was ineffective
for failing to present a better alibi defense.
The standard of review for both claims is highly deferential. Applying those standards, we are convinced
appellant’s convictions for grand theft
and receiving stolen property must be affirmed.
FACTS
A UPS truck full of
cargo went missing from the company’s Aliso Viejo distribution facility on November 10, 2008. The truck was found in Irvine
the next morning, but it was empty, and its contents — valued upwards of
$40,000 — were never recovered. The key
to the truck was still in the ignition, and whoever drove it there must have
known how to drive a stick shift because the truck has a manual transmission
with a “heavy†clutch.
Investigation of the
theft stalled until Albert Stanley reported he overheard his neighbor Michael
Ambrose bragging about stealing a UPS truck.
In February 2009, investigators searched Ambrose’s computer and found a
photo of appellant standing inside the doorway of a UPS truck. The truck in the photo was not the one that
had been stolen, and Ambrose insisted he did not know appellant.
appellant had been fired from UPS in 2007, he became a suspect. At that time, appellant’s driver’s license
depicted him as having black hair and a mustache. He was listed as five-foot nine, 156 pounds
and 39 years old.
During the course of the
investigation, the police learned that three UPS employees noticed a stranger
enter the Aliso Viejo facility on the night of the theft. Randy Carlson saw the man enter the facility
around 6:30 p.m., which was unusual
because few employees arrive at that time.
In a written statement to UPS for purposes of its internal
investigation, he described the man as five-foot seven, with olive skin, black
hair, a mustache, and wearing a brown shirt and brown pants. When the police showed Carlson a photographic
lineup that included a photo of appellant, he could not make a positive
identification. But he noted appellant
“could be close†if he had a fuller mustache.
At trial, Carlson testified he believed the suspect was wearing shorts
when he saw him on the night of the theft.
UPS employee Craig
Morakami also saw the suspect. In a
written statement to UPS, he described the man as having a medium build and a
thin mustache. In July 2010, the police
showed him a photographic lineup, and he identified appellant as the
suspect. At trial, Morakami testified
the suspect was five-foot eight and wore a UPS uniform. He also said he would have noticed if the
suspect had any facial hair because UPS policy forbids drivers from having
beards.
Steve Johnson was the
third UPS employee to see the suspect at the Aliso Viejo facility. In his written statement to the company, he
described the man as possibly Hispanic, five-foot eight, with a mustache, and
wearing a UPS jacket and hat with long pants.
In July 2010, the police showed him a photo lineup and he was unable to
make a positive identification. However,
he said that of all the photos, appellant’s was the closest to how the suspect
appeared. At trial, he said he was
“fairly sure†the person he picked in the lineup, i.e., appellant, was the
person he saw on the night of the theft.
About an hour after the
truck was stolen, UPS employee Brandon Lowe happened to come across it in a
parking lot in Irvine. At the time, he
did not know the truck had been stolen, but it looked odd to him because it was
parked back-to-back with a U-Haul truck.
Lowe approached and saw a Hispanic man and woman inside the U-Haul and a
Hispanic man inside the UPS truck. The
man in the UPS truck moved quickly, bending down and pivoting as he picked up
and moved boxes into the U-Haul. Lowe
asked the man what he was doing, and he said he was doing a “transfer.†The man then told the two people in the
U-Haul to hurry up. Convinced nothing
untoward was going on, Lowe left the scene.
Over the course of the
next few days, Lowe gave a written statement to UPS and spoke to the police
about what he had seen. He recalled the
man in the UPS truck was Hispanic and estimated he was 35 years old, five-foot
eight and 165 pounds. He also said the
man had dark hair, but he did not mention anything about facial hair. At that time, the police did not know
appellant was a suspect in the case. So
the first two photographic lineups they showed Lowe, on November 12 and
November 24, 2008, did not contain appellant’s picture. Lowe did not identify anyone from those
lineups.
Lowe
subsequently worked with investigators to create a composite sketch of the
suspect. He told the police the man he
saw unloading the UPS truck was Hispanic, between five-eight and five-ten, 160
to 170 pounds, 30 to 40 years old, and had thick hair with a slight bend. Lowe indicated the man had no beard, but his
face was weathered and pockmarked, and he may have had a mustache.
In January 2009, Lowe
told Sheriff’s Investigator Dennis Carpio the suspect had hair sticking out
from under a cap, several days’ growth of beard, and thick, muscular
calves. Six months later, in July 2009,
Carpio assembled another photographic lineup for Lowe’s review, and this time
he included appellant’s photo in the mix.
Shown this lineup, Lowe identified appellant without hesitation. At trial, Lowe said he was “very certainâ€
appellant’s photo matched the suspect.
He said the suspect had a strong Hispanic accent, weathered skin with
facial stubble, wore a UPS jacket and shorts, and had large, thick calves, like
a typical UPS driver.
On
cross-examination, Lowe admitted that, looking at appellant in the courtroom,
it did not appear he had any pockmarks on his face. However, he was not asked if appellant was
the person he had seen. In fact, during
the trial, neither side asked any of the eyewitnesses if they recognized appellant
as the suspect.
Investigator Carpio
testified to corroborate the eyewitnesses’ descriptions of appellant. He also testified appellant’s appearance had
changed from the time he interviewed him in 2009 to the time of trial in 2011. During the interview, appellant was sporting
a mustache and had patches of dark skin on his face, but at trial, the mustache
and dark patches were gone. Lowe said
appellant spoke with a strong Hispanic accent during the interview, and his
hair was longer back then than it was at trial.
Appellant did not
testify at trial.
title="">[2] Instead, he relied on a cadre of other
witnesses to establish his alibi defense.
The first prong of the defense was physical incapacitation. The record shows that after appellant was
fired from UPS in 2007, he hired an attorney and filed a worker’s compensation
claim against the company. The attorney
referred appellant to Dr. Lawrence Miller, who practices in the area of chronic
pain management. Beginning in February
2008, Dr. Miller examined appellant on multiple occasions. At trial, he testified appellant suffers from
a variety of serious medical problems, including a
disc, sciatica, and plantar fasciitis. Dr. Miller opined that, due to these
conditions, appellant was in need of back surgery, and it would have been
extremely painful for him to pivot, bend, or lift boxes, as Lowe described. Dr. Miller’s testimony was corroborated by
several of appellant’s relatives, who said appellant needs to walk with a cane
because of his injuries. However, none
of them were able to explain how appellant sustained his injuries.
The
defense also attempted to show appellant did not match the eyewitness’ description
of the suspect. At one point or another,
the eyewitnesses said the suspect had a mustache or facial stubble, hair
sticking out from under his cap, and thick, muscular calves. However, nine of appellant’s relatives
testified appellant was clean shaven with short hair when they saw him at a
baby shower the day before the truck was stolen. The defense also produced two photographs
that purportedly showed appellant looking that way at the shower. Additionally, appellant’s wife testified his
legs are not thick and muscular because his injuries keep him from exercising.
Lastly, the defense
tried to establish appellant was having dinner with his family at the time of
the theft. Several of appellant’s family
members testified that, on the day of the theft, appellant took his wife,
children, niece and nephew to a movie around 12:30 p.m. Then, after the movie, they all went to
appellant’s mother-in-law’s house in Pico Rivera for a family dinner. However, the witnesses did not agree on when
they finished dinner or when appellant left the house.
In closing argument, the
prosecutor asserted the testimony of appellant’s witnesses was “scriptedâ€
because before trial they were interviewed by the defense in a group setting. The prosecution also commented on appellant’s
failure to present “independent†witnesses, i.e., nonrelatives, to corroborate
his alibi. Describing appellant as a
disgruntled ex-employee with a motive for revenge, the prosecutor argued his
alleged injuries were not so severe as to prevent him from carrying out the
charged offenses. While Dr. Miller
suggested otherwise, the prosecutor argued his opinions lacked credibility
because he treated appellant as part of his worker’s compensation case.
In his closing argument,
defense counsel asserted the prosecution’s case hinged on inconsistent and
unreliable eyewitness testimony. He also
argued the prosecution never produced any evidence to contradict the defense
case. In addition, defense counsel
emphasized there was no physical evidence connecting appellant to the theft,
and no one ever identified him in court.
However, the jury found appellant guilty as charged. It convicted him of grand theft for stealing
the truck’s cargo and of receiving stolen property for concealing the truck
itself. After his motion for a new trial
was denied, the court sentenced him to two years in prison.
I
Appellant
argues there is insufficient evidence to support the jury’s verdict. He contends the eyewitness identification
evidence was so weak and the defense case so strong that no reasonable jury
could have concluded he was the person who stole the truck. We respectfully disagree.
The
standard of review for assessing the sufficiency of the evidence to support a
criminal conviction is “highly deferential.â€
(People v. Lochtefeld (2000)
77 Cal.App.4th 533, 538.) Our task is to
“‘“examine the whole record in the
light most favorable to the judgment to determine whether it discloses
substantial evidence[.]â€â€™â€ (
846, 917.) “Although we must
ensure the evidence is reasonable, credible, and of solid value,†we must keep
in mind “it is the exclusive province of the trial judge or jury to determine
the credibility of a witness and the truth or falsity of the facts on which
that determination depends.
[Citation.]†(
314.) “‘Conflicts and even testimony
which is subject to justifiable suspicion do not justify the reversal of a
judgment . . . .’ Unless it describes
facts or events that are physically impossible or inherently improbable, the
testimony of a single witness is sufficient to support a conviction. [Citation.]â€
(People v. Elliott (2012) 53
Cal.4th 535, 585.)
In challenging the
sufficiency of the evidence that was presented against him, appellant
acknowledges Lowe positively identified him as the person he saw inside the
stolen truck on the night of the theft.
However, he claims this evidence was of dubious value because there was
a “long delay†between the theft and Lowe’s identification, and Lowe’s
description of the suspect “differed significantly†from that given by the
other eyewitnesses.
Granted,
eight months did pass between the theft and the time Lowe identified
appellant. However, during that time,
the police showed Lowe two other photographic lineups that did not contain
appellant’s photo. The fact Lowe did not
identify anyone from those first two lineups enhances the reliability of his
subsequent identification of appellant.
(People v. Sanchez (1982) 131
Cal.App.3d 718, 731, disapproved on other grounds in People v. Escobar (1992) 3 Cal.4th 740, 752 [reliability of
photographic lineup was increased by the fact eyewitness declined to identify anyone out of a
different lineup that did
Moreover,
when Lowe saw appellant’s photo in the third lineup, he identified him without
hesitation. At trial, he said he was
“very certain†the person in the photo was the person he saw on the night of
the theft. Morakami also picked
appellant’s photograph out of a lineup.
And Johnson stated that in the lineup he was shown, appellant’s photo
was the closest to how the suspect appeared.
While he could not be certain appellant was the man he saw, he testified
he was “fairly sure†about this.
Although
none of the eyewitnesses identified appellant in court, they were not asked to
do so: The law does not require
to be corroborated by an in-court
252.) In any event, the absence of an
in-court identification in this case is not that significant in light of the
evidence that appellant’s appearance had changed from the time of the theft in
2008 until the time of trial in 2011.
Suffice it to say, the identification evidence was fairly uniform in
terms of implicating appellant in the theft.
There was also general
consistency insofar as how the eyewitnesses described the suspect. They reported he was a dark haired Hispanic,
about five-foot eight, with a medium build and a mustache or facial
stubble. And that is how appellant
appeared in his driver’s license photo at the time he was arrested. Appellant claims no one other than Lowe said
the suspect was wearing shorts, but in describing the suspect’s clothing at
trial, Carlson recalled the suspect was wearing a brown shirt, a brown hat “and
I believe shorts.â€
There
were discrepancies in the eyewitness’ descriptions, and Lowe’s description of
the suspect as having pockmarked skin with dark patches did not match how
appellant looked at the time of trial.
However, it was up to the jury to assess the reliability of the
identification evidence and the credibility of the people who testified. And that goes for both the lay witnesses and
the sole expert witness, Dr. Miller.
Because Dr. Miller’s assessment of appellant’s physical capabilities was
medically and scientifically based, appellant argues no reasonable jury could
reject it. But as with all of the other
testimony offered in the case, the jury was free to disregard Dr. Miller’s
opinions if it determined they were unreasonable or unbelievable. (People
v. Engstrom (2011) 201 Cal.App.4th 174, 187 [trier of fact “is
testimony of an expert witnessâ€].)
The
point is, “‘The strength or weakness of the identification [evidence], the
incompatibility of and discrepancies in the testimony, if there were any, the
uncertainty of recollection, and the qualification of identity and lack of
positiveness in testimony are matters which go to the weight of the evidence
and the credibility of the witnesses, and are for the observation and
consideration, and directed solely to the attention of the jury in the first
instance . . . .’ [Citation.]†(People
v. Mohamed (2011) 201 Cal.App.4th 515, 522.) On appeal, we cannot overturn a conviction
simply because there are conflicts in the evidence or some of the testimony is
subject to justifiable
suspicion. (People v. Elliott, supra 53 Cal.4th at p. 585.) Instead, we can only “‘set aside a jury’s
finding of guilt [if] the evidence of identity [is] so weak as to constitute
practically no evidence at all.’
[Citations.]†(
Cal.App.4th at p. 521.)
That
is clearly not the situation in this case.
Rather, for the reasons set forth above, we are convinced the record
contains substantial evidence to
support for the jury’s finding appellant was the person who committed the
subject offenses. We therefore reject
his challenge to the sufficiency of the evidence.
Appellant
also argues his attorney was ineffective for failing to put on a more
compelling defense case. Again, we
cannot agree.
title="">[3]
Following the verdict, appellant retained a new attorney and moved for
a new trial on the grounds of insufficient evidence and ineffective assistance
of counsel. In support of the motion,
appellant submitted a declaration from his wife saying she supplied defense
counsel with variety of evidence before trial.
Appellant argued his attorney was ineffective for failing to introduce
this evidence at trial because it would have corroborated his alibi
defense. The subject evidence can be
divided into six groups: First, there are documents corroborating the
claim that appellant and his relatives attended a baby shower the day before
the theft. According to appellant’s
relatives, the shower was for the goddaughter of appellant’s mother-in-law. Several of appellant’s relatives testified
they saw appellant at the shower. They
said he had short hair and was clean shaven at that time. At trial, the defense also introduced two
photographs which were purportedly taken at the shower. The photos are of a woman, but the defense
claimed appellant could be seen standing behind her in the background. The prosecutor disputed the man in the
background was appellant, and she also questioned whether the baby shower
actually occurred. Although the
prosecutor did not present any evidence to prove that it didn’t, she suggested
appellant’s witnesses might have fabricated the baby shower to bolster
appellant’s defense.
Second,
a telephone bill was intended to contradict the People’s claim that appellant’s wife made numerous calls on her
cell phone during the time the truck was stolen. The prosecution insinuated appellant’s wife
was trying to communicate with appellant by phone at that time. However, appellant’s wife testified there would
have been no reason for her to do so because appellant was with her at that
time.
Third, a bank statement
was offered to corroborate the defense claim that appellant went to the movies
with his family on the afternoon of the theft.
The statement does show a charge for a movie in Pico Rivera, but the
charge is dated November 12, 2008, two days after the theft occurred. The defense claimed the charge was actually
incurred on November 10 but it did not post to appellant’s account until two
days later.
Fourth, a marriage
certificate showed appellant and his wife were married by the Catholic Church
on November 8, 1997. The significance of
the November date had to do with how appellant’s wife claimed she was able to
remember what happened on the day of the theft, which was November 10, a Monday. She said that in light of her anniversary,
she took the 10th off from work and thus had a very clear memory of what she
and appellant did that day. On
cross-examination, she admitted she and appellant were married in a civil
ceremony in June 1997. However, she said
they celebrated their anniversary in November, because that is when they got
married by the Catholic Church.
Fifth, medical records
were produced to show appellant has never surgically altered his
appearance. Because appellant’s wife
worked at a dermatology clinic, the prosecutor hinted it would have been easy
for appellant to get work done there.
However, the medical records indicated appellant never received any
treatment at the clinic to change his facial characteristics.
And lastly, numerous
photographs taken of appellant over the years and the composite sketch the
police put together based on Lowe’s description of the suspect were offered to
show that appellant did not resemble the composite sketch and that his
appearance remained fairly consistent over time.
The trial court did not
believe defense counsel was ineffective for failing to present this evidence at
trial. Describing defense counsel’s
preparation as “extremely thorough,†the court stated, “[I]t’s pretty clear that
there was tons of evidence†on the issue of identification and appellant’s
alibi. Indeed, the court believed the
evidence was bordering on being cumulative, and there was a real danger of
overwhelming the jury had the defense presented the evidence that was proffered
by appellant’s wife. Satisfied there was
sufficient evidence to support the verdict and appellant received effective
representation, the court denied his motion for a new trial.
“[I]n cases in which the
trial court grants a new trial order, the standard of review is abuse of
discretion. [Citation.] However, in cases such as this, where the
trial court denied the motion for a new trial, the authorities are less clear
regarding the standard of review.
[Citation.]†(
Cal.App.4th 214, 224, fn. 7.) Some
courts have utilized the abuse of discretion standard in reviewing the denial
of a new trial motion based on alleged ineffective assistance of counsel. (See, e.g., People v. Wallin (1981) 124 Cal.App.3d 479, 483.) But others have determined that independent
review is required. (See, e.g.,
720, 724-726.) Not that it would make a
difference here, but we believe the latter approach is more appropriate given
that the right to counsel is constitutionally grounded and represents a
fundamental component of our legal system.
(See In re Resendiz (2001) 25
Cal.4th 230, 248, abrogated on another ground by Padilla v. Kentucky (2010) 559 U.S. 356 [in assessing ineffective
assistance of counsel claim, court notes independent review is favored in cases
that predominately involve questions of law, and this is “‘especially so when
constitutional rights are implicated’â€]; People
v. Albarran, supra, 149 Cal.App.4th at pp. 224-225, fn. 7 [the rationale
for applying independent review when a new trial motion “implicates a
significant constitutional issue is inherently soundâ€].)
Still,
even with de novo review, appellant has a tough row to hoe in terms of proving
his claim. “‘“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.]â€â€™â€ (People
v. Lucas (1995) 12 Cal.4th 415, 436.)
“Because of the difficulties
inherent in making [this] evaluation, a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action ‘might be considered sound
trial strategy.’†(Strickland v. Washington (1984) 466 U.S. 668, 689.)
The
defendant must also affirmatively establish prejudice. (Strickland
v. Washington, supra, 466 U.S. at p. 687.)
To do this, “[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.†(
sufficient to undermine confidence in the outcome.†(Ibid.) Under this standard, the defendant “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.†(People
v. Williams (1988) 44 Cal.3d 883, 937.)
Appellant contends his attorney was
ineffective for failing to present independent evidence to corroborate the
testimony his relatives provided at trial.
Noting the prosecutor seized on this failure in her closing argument,
appellant argues his attorney should have done more to bolster his alibi with
impartial witnesses. For example, he
claims his attorney should have called independent witnesses or supplied
documentary evidence to prove the alleged baby shower actually took place. However, the defense presented a plethora of
witnesses as well as photographic evidence to prove it did. And the prosecution did not present a whiff
of evidence to prove it didn’t. Looking at the big picture, the main
problem for the defense was not proving there was a baby shower. Rather, it was trying to establish appellant
attended the shower and showing what he looked like at the time. Other than the two photographs the defense
introduced at trial, appellant does not contend there is any other evidence his
attorney could have presented on these important issues. Therefore, it wouldn’t have mattered if
defense counsel had presented additional evidence that the alleged baby shower
actually occurred. Proving that point
would not have established what appellant looked like, and that is what
mattered most.
Appellant also argues he
was prejudiced by his attorney’s failure to corroborate various aspects of his
wife’s testimony, such as her claim about the family seeing a movie together on
the afternoon of the theft. Appellant
asserts his attorney should have produced the bank statement that was offered
at the new trial motion to prove she purchased the movie tickets. However, as noted above, the statement actually
shows the purchase was processed on November 12, 2008, two days after the
theft. Regardless, appellant’s wife
testified they went to the movie in the afternoon, several hours before the
theft occurred. So even if appellant did
attend the movie, he still would have had time to commit the theft later that
evening.
The fact is, none of the
evidence that appellant proffered at the new trial motion directly related to
his ability to commit the alleged offenses.
Arguably, the marriage certificate, phone records, medical records and
photos of appellant could have been used to bolster the credibility of the
appellant’s wife. But even with this
additional evidence, the jury still had every reason to suspect she was not being
truthful in order to protect her husband.
All things considered, we do not believe defense counsel was ineffective
for failing to produce the subject evidence.
Appellant argues his
attorney should at least have asked the court’s permission to show appellant’s
legs to the jurors, so they could see his calves were not thick and muscular,
as Lowe described them. However,
appellant’s wife testified to this issue, and by presenting the evidence
through her, defense counsel was able to avoid the prospect of subjecting
appellant to cross-examination. (
835.) In any event, showing appellant’s
calves were thin at the time of trial would not have done much to impeach
Lowe’s testimony because the trial did not take place until over two years
after the theft occurred. That was
certainly enough time for appellant’s legs to diminish in terms of strength and
size, especially if, as the defense claimed, he was injured and unable to
exercise during that period. (See
time of trial was irrelevant to how it appeared 11 months earlier].)
Appellant also contends
his attorney was ineffective because he offended the jury. He points to two instances where his attorney
apparently raised his voice to an unacceptable level. First, while defense counsel was
cross-examining Lowe, the court warned him, “Counsel, counsel, lower your
voice. Keep it low.†And secondly, during his closing argument,
the court again told defense counsel, “Please lower your voice and keep it
lowered.†One of the jurors then
commented, “I’m really not hard of hearing.
I’m getting offended by him yelling.â€
The prosecutor remarked on defense counsel’s volume during her rebuttal,
saying “we have a case proven to beyond a reasonable doubt and all the yelling
and screaming isn’t going to change it.â€
Aside from these two
incidents, there is no indication the jury found defense counsel obnoxious or
decided the case based on bias against him.
Moreover, the jury was instructed to decide the case based only on the
evidence, not on bias or prejudice.
(CALCRIM No. 200.) We presume the
jury followed this instruction. (
47; People v. Mickey (1991) 54 Cal.3d
612, 689, fn. 17].) We do not believe it
is reasonably probable appellant was prejudiced because his trial counsel was
perhaps a little overzealous at times and spoke too loudly on two occasions.
In addition to
criticizing his attorney’s speaking style, appellant also belittles the
substance of his arguments. He is
particularly concerned about what defense counsel made in response to one of
the prosecutor’s statements at the end of her initial opening argument: “My burden,†said the prosecutor, “is [not]
to prove [the charges] beyond all doubt, [or] beyond all imaginable or
speculative doubt, but to prove [them] beyond any reasonable doubt that the
defendant committed this crime. There’s
always room for some doubt. We never
even know if the sun is going to come up for sure in the morning. Japan, they don’t know that right now;
right? But we’re pretty sure the sun is
going to come up. We’re pretty
sure.â€
Replying to these
comments, defense counsel began his closing argument by saying, “Boy, if you’re
as sure of [appellant’s] guilt as you are the sun is going to come up tomorrow
morning then you should find him guilty.â€
Appellant cites this remark as proof his attorney’s closing argument was
unwieldy and ineffective, but we think it was a nicely constructed opening. Defense
counsel vigorously attacked the prosecution’s evidence and methodically
addressed the weaknesses in the eyewitness’ identifications. In fact, his entire argument was designed to
convince the jurors that the chance appellant committed the charged offenses
was actually far less than the odds
of the sun coming up tomorrow, and therefore they should find him
phraseology of a closing argument, this clever return of the prosecutor’s
argument is not one we would question.
That
defense counsel was ultimately unsuccessful does not prove he was
ineffective. While it is easy to
second-guess a losing strategy, we do not believe it is reasonably probable
appellant would have obtained a more favorable verdict had his attorney handled
the case differently. Therefore, we do
not believe appellant was denied his right to effective assistance of
counsel. No cause for reversal has been
shown.
DISPOSITION
The judgment is
affirmed.
BEDSWORTH,
J.
WE CONCUR:
RYLAARSDAM,
ACTING P. J.
IKOLA, J.
convicted felon, Ambrose testified under a grant of immunity at trial.
name="_ftn2" title=""> [2] Appellant
had previously been convicted of misdemeanor theft for stealing UPS property on
another occasion. Although the court
ruled evidence of that prior theft could not be used to prove appellant’s
motive in the present case, it indicated such evidence could be used to impeach
appellant if he took the stand.
