P. v. Fister

Filed 7/12/07 P. v. Fister CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Marsha Slough, Judge. Affirmed.

ORIGINAL PROCEEDING; petition for writ of habeas corpus. Marsha Slough, Judge. Dismissed.

Eleanor M. Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Kristine A. Gutierrez, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted defendant Dwayne Fister of two counts of possession of stolen property, in violation of Penal Code section 496, subdivision (a). He was found not guilty of a third count. He appeals, arguing that his counsel was constitutionally ineffective.

Defendant also filed a petition for writ of habeas corpus which provides additional factual information on the same issue (case No. E042028). By order filed January 10, 2007, we stated that the petition would be considered with the appeal for the sole purpose of determining whether an order to show cause should issue.

I. FACTS

George Thompson testified that he was a security guard employed by San Bernardino International Airport on December 2, 2003. At 3:00 a.m. on that morning he was on patrol when he saw a pickup truck at a loading dock at Building 533. As he got out to investigate, a man got into the vehicle and drove away. Mr. Thompson identified defendant as the driver of the pickup truck. He also saw that the back of the pickup truck was filled with sheets of aluminum flooring. Mr. Thompson wrote down the license number of the pickup truck.

Sergeant Lee Chennault, a San Bernardino police officer, investigated the incident and found that bolt cutters had been used to break into the building. He found that several hundred aluminum floor tiles were missing.

Sergeant Chennault went to San Bernardino Recycling Center and found a dumpster full of several hundred aluminum floor tiles. The persons recycling the tiles were identified by copies of their drivers licenses attached to the centers copy of their recycling receipts. The licenses were for defendant and his sister, Darla Fister.

When Sergeant Chennault went to the address shown on the receipt, he saw the van that was used to take the tiles to the recycling center parked in the driveway. The van was registered to the mother of defendant and Darla Fister. Defendant and Darla were then arrested.

An employee of the recycling center testified that he received 1,230 pounds of aluminum flooring from defendant on November 24, 2003. He paid defendant $553.50 for the tiles and filled out the receipt, including the copy of the drivers license and the van license number. He matched the picture to the person presenting the license. Defendant returned on November 26 and brought in 1,880 pounds of aluminum tile. Defendant was paid $846 for the aluminum. Finally, defendant brought in 2,000 pounds of tiles on November 28, and was paid $900 for them.

Darla Fister testified for the defense. She testified she went to the recycling center on November 24 with her ex-boyfriend, Tim Hewitt, and not with defendant. Mr. Hewitt had borrowed defendants drivers license, and used it on that day. Ms. Fister also testified that she had pled guilty to a charge of receiving stolen property as a result of this offense.

Ms. Fister identified Mr. Hewitt from surveillance photos as the person who went to the recycling center on the other two charged occasions.

Defendants wife testified that she was present on November 24 when defendant gave his drivers license to a person named Rick. Defendant also testified that he gave his drivers license to Rick on November 24. He denied that the signature on the receipts was his, and he said he was paid $20 each time Rick and Mr. Hewitt used his license, for a total of $40.

The jury believed the defense witnesses as to the November 24 charge (count 1) and found defendant not guilty on that charge. As noted above, he was convicted of the same charge for the November 26 and November 28 incidents (counts 2 & 3).

A. Alleged Ineffective Assistance of Counsel

Defendant argues that his counsel was constitutionally ineffective because: (1) he failed to object to an impermissibly suggestive photo lineup; (2) he failed to investigate a defense by failing to retain a handwriting expert; and (3) he permitted a police officer to testify, on cross-examination, as to the officers personal opinion concerning handwriting evidence.

The parties agree on the general framework used to evaluate defendants contentions. In Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674] (Strickland), the Supreme Court said: A convicted defendants claim that counsels assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsels performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsels errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. (Id. at p. 687.)

Judicial scrutiny of counsels performance must be highly deferential. It is all too tempting for a defendant to secondguess counsels assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsels defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsels challenged conduct, and to evaluate the conduct from counsels perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsels 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. [Citation.] There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. [Citation.] (Strickland, supra, 466 U.S. at pp. 689-690.)

Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsels challenged conduct on the facts of the particular case, viewed as of the time of counsels conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsels function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. (Strickland, supra, 466 U.S. at p. 690.)

Since defendant must also show that the errors were prejudicial, he must demonstrate that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Strickland, supra, 466 U.S. at p. 694.)

The Supreme Court also said: Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsels performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result. (Strickland, supra, 466 U.S. at p. 697.)

Subsequent cases have consistently followed the Strickland guidelines. For example, our Supreme Court has stated: We have repeatedly stressed that [if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim on appeal must be rejected. [Citations.] (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)

B. Alleged Ineffective Assistance of Counsel ‑‑ Photo Lineup

With this background, we turn to defendants specific claims. First he contends that his counsel was constitutionally ineffective because he failed to object to the use of an impermissibly suggestive photo lineup. Specifically, he objects to the use of defendants drivers license photograph in a photo lineup shown to Mr. Cortez, the recycling center employee. He argues that Mr. Cortez had already seen the photo at least three times before because defendants drivers license was concededly used at the recycling center by someone. Thus, he finds that the photo lineup was impermissibly suggestive, and that his counsel should have objected to it.

However, as the People point out, this testimony was elicited on cross-examination. On direct examination, the employee positively identified defendant as the person who brought the aluminum floor tiles to the recycling center on all three occasions. He testified that, in each instance, he compared the drivers license photo to the person presenting it and found them to match. He did not mention identifying defendant from a photo lineup.

On cross-examination, defense counsel elicited that the employee had been shown a photo lineup (exh. 27). The employee stated that he had made an identification from the lineup, but he did not expressly testify that he had identified defendant from the lineup. He merely stated that the picture could be the same as the drivers license picture.

Since the results of the photo lineup were not relied on by the prosecution, it appears that any error resulting from the use of the photo lineup in the examination of the recycling center employee was invited error. The attempt to impeach the recycling center employee in this manner was certainly within the range of proper tactical choices available to defense counsel. The record does not show any explanation for counsels action, and the appeal on this ground must therefore fail. Although defense counsels cross-examination elicited this somewhat unfavorable testimony, our Supreme Court has said: Even where defense counsel may have elicit[ed] evidence more damaging to [defendant] than the prosecutor was able to accomplish on direct [citation], we have been reluctant to second-guess counsel [citation] where a tactical choice of questions led to the damaging testimony. (People v. Williams (1997) 16 Cal.4th 153, 217.)

In his reply brief, defendant changes focus and argues that his counsel should have challenged the photo lineup prior to trial as impermissibly suggestive. This argument ignores the fact that the recycling center employees identification from the photo lineup was not part of the prosecutions case. Even if the trial court had found the photo lineup impermissibly suggestive, and excluded it, the effect of the exclusion at trial would have been minimal. The recycling center employee would still have positively identified defendant at trial as the man who recycled the stolen materials. We therefore agree with the People that the failure to challenge the composition of the photo lineup, either before trial or at trial, was not deficient performance by trial counsel, nor was it prejudicial. Defendant has therefore not borne his burden of demonstrating ineffective assistance of counsel in this regard.

C. Alleged Ineffective Assistance of Counsel ‑‑ Handwriting Expert

Defendant next contends that his trial defense counsel was constitutionally ineffective because counsel failed to employ a handwriting expert to examine the signatures on the recycling company receipts. Hopefully, the expert would testify that the signatures were not defendants signatures, thus bolstering defendants claim that he had loaned his drivers license to other men who had used it when recycling the stolen materials. Again, the record contains no explanation for defense counsels failure to employ a handwriting expert, and we must reject the contention for purposes of this appeal. (People v. Mendoza Tello, supra, 15 Cal.4th at p. 266.)

However, the petition for writ of habeas corpus offers more information on this subject, and we will discuss the contention further in determining whether a show cause order should issue.

D. Alleged Ineffective Assistance of Counsel ‑‑ Cross-examination

The third instance of alleged ineffective assistance of counsel occurred during defense counsels cross-examination of Detective Stephen W. Barilics. Although the issue was not raised on direct examination, defense counsel asked the detective on cross-examination if he had compared the signatures on the receipts with defendants signature on his drivers license. The detective replied negatively. The following colloquy then occurred:

[Defense Counsel:] Youre not a handwriting expert, I take it?

[The Witness:] Thats correct.

[Defense Counsel:] Did you inquire of anybody from your department to perform that function?

[The Witness:] There is no one at my department that I am aware of.

[Defense Counsel:] When your department needs handwriting analysis, where do you go?

[The Witness:] We have done away with that procedure quite some time ago.

[Defense Counsel:] You dont even do handwriting checks at all on any case?

[The Witness:] No, sir.

[Defense Counsel:] You still do fingerprint examination; right?

[The Witness:] Fingerprints, you can match; signatures, you cant. [] . . . []

[Defense Counsel:] In your opinion, theres no credence or nothing of any evidentiary value in handwriting? Is that what youre saying?

[The Witness:] Not to me, no, sir.

[Defense Counsel:] Is that a department policy as far as youre aware?

[The Witness:] Im not free to respond to that.

Defendant now argues that this exchange shows that his counsel was constitutionally ineffective because defense counsels questioning allowed the officer to express an opinion normally within the scope of expert testimony, and effectively permitted [the officer] to express an opinion that no analysis or examination could demonstrate that the signature was not [defendants].^[1]

Defendant cites no authority for his argument, and we think it apparent that there was a reasonable tactical explanation for the line of questioning, that is, to show that the detectives investigation was superficial. Accordingly, defense counsels questioning on this subject did not demonstrate deficient adversarial performance. We also agree with the People that defendant has not shown that defense counsels actions were prejudicial under the Strickland test.

E. The Habeas Corpus Petition (Case No. E042028)

On December 27, 2006, defendant filed a petition for writ of habeas corpus on the ineffective assistance of counsel issue. As noted above, by order filed January 10, 2007, we stated that the petition would be considered with the appeal for the sole purpose of determining whether an order to show cause should issue.

This procedure follows our Supreme Courts suggestion in Mendoza Tello: A claim of ineffective assistance in such a case [i.e., a case in which the record shows no reason for defense counsels actions] is more appropriately decided in a habeas corpus proceeding. [Citations.] We recommended in [People v.] Pope [(1979) 23 Cal.3d 412] that, [t]o promote judicial economy in direct appeals where the record contains no explanation, appellate counsel who wish to raise the issue of inadequate trial representation should join a verified petition for writ of habeas corpus. [Citation.] Because claims of ineffective assistance are often more appropriately litigated in a habeas corpus proceeding, the rules generally prohibiting raising an issue on habeas corpus that was, or could have been, raised on appeal [citations] would not bar an ineffective assistance claim on habeas corpus. (People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)

In this case, the habeas corpus petition reiterates the arguments made on appeal. However, the attached exhibits focus on the failure to present the testimony of a handwriting expert.

The first exhibit is the declaration of M. Patricia Fisher, a certified forensic document examiner. Ms. Fisher, a well-qualified expert, examined samples of defendants handwriting and the receipts from the recycling center dated November 26 and November 28, 2003. She concluded that defendant did not sign either of the receipts.

A second expert examined nine images from a security camera at the recycling center, as well as photographs of defendant. The expert concluded that the technical details of the images precluded a meaningful evaluation of the pictures.

Defendant submitted a declaration. He states that he was innocent of the charges, that he had not signed the receipts, and that his attorney never had anyone examine the signatures on the receipts, or the surveillance photographs. Thus, although defendant argues that a photographic expert should have been employed to determine if he appears in the surveillance photographs, the declaration establishes that the effort would have been futile.

Defendants trial attorney also submitted a declaration. He states that, although he thought defendant had not signed the receipts, he believed that the differences in the signatures were so obvious that a lay person could see they were not made by the same person. He thought that the testimony of defense witnesses would provide a sufficient basis for the jury to find in defendants favor on the handwriting issue, and he did not feel it was necessary to ask the court for funds to hire a handwriting expert. Although appellate defense counsel argues that trial defense counsel did not make a reasonable tactical decision in relying on the testimony of the family witnesses, the fact remains that the tactic was partially successful: the jury did believe those witnesses on the first count, and found defendant not guilty of the November 24 charge.

The People point out that trial defense counsels belief was not unreasonable because Evidence Code section 1417 provides: The genuineness of handwriting, or the lack thereof, may be proved by a comparison made by the trier of fact with handwriting (a) which the court finds was admitted or treated as genuine by the party against whom the evidence is offered or (b) otherwise proved to be genuine to the satisfaction of the court.

Exhibit F is a declaration by defendants appellate counsel regarding her discussions with defendants trial counsel. Based on their original conversation, she prepared a declaration for signature which states that trial defense counsel did not ask for a handwriting expert because he did not think the county would provide funds to hire one. When trial defense counsel received the draft declaration, he changed his reasons and told trial appellate counsel that he thought the differences in signatures would be obvious to the jurors.

The essence of the exhibits to the petition is that a handwriting expert would have supported defendants case, but that his trial attorney did not think it was necessary to hire a handwriting expert. Strickland teaches that we cannot view the issue in hindsight, and we must consider the circumstances facing trial defense counsel at the time of the decision. (Strickland, supra, 466 U.S. at p. 690.)

While certainly some attorneys would have retained a handwriting expert, we cannot find that trial defense counsels decision was outside the wide range of professionally competent assistance. Counsel, with reason, believed that lay jurors could discern that the signatures were not those of defendant. The assumed error in this thinking was not so serious so as to say that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Accordingly, we find that defendant has not met his burden of showing that trial defense counsels performance was deficient: [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. (Strickland, supra, 466 U.S. at pp. 689-690.)

We therefore conclude that an order to show cause should not be issued, and that defendants habeas corpus petition should be dismissed.

II. DISPOSITION

The judgment is affirmed.

The petition for writ of habeas corpus is dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Ramirez

P.J.

/s/ Hollenhorst

J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line Lawyers.

^[1] Although not mentioned by appellate defense counsel, the subject also arose when trial defense counsel asked Sergeant Chennault if defendants signature on the drivers license was similar to the signature on one of the receipts. The officer responded: There is a difference, but theres some letters that are ‑‑ like the F is the same. The D looks familiar. I mean, Im not an expert in handwriting.