P. v. Marchbanks

Filed 5/2/07 P. v. Marchbanks CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

A jury convicted defendant Homer Alvin Marchbanks, Jr. of receiving a stolen vehicle and vandalism. (Pen. Code,  496d, subd. (a), 594, subd. (a).) In his first appeal, we held that the trial court abused its discretion by denying defendants request for new counsel to file a motion for new trial. We remanded the matter with directions to appoint independent counsel for the purpose of filing a new trial motion. (People v. Marchbanks (Sept. 9, 2005, A107811) [nonpub. opn.].)

Independent counsel filed the motion, which the trial court denied. Defendant now contends he is entitled to a new trial because his trial counsel was ineffective and the prosecutor committed misconduct. We disagree and affirm.

I. FACTS

We need not restate the facts, which are set forth in our prior opinion.[1] It suffices to say that defendants trial was a credibility contest. The Peoples primary witness, Nigel Wilson, claimed that defendant stole a 2003 Cobra Mustang and put the engine in his own car, a 1999 Mustang, to create a sleepera car that looks plain, but is in fact very fast. On the other hand, defendant claimed that he merely paid Wilson, the owner of an auto shop named Bullet Proof Performance, to install a new engine in his car. Defendant claimed his car had engine trouble, and Wilson offered to put a 2003 Cobra engine in defendants car for $2,800. Defendant believed having a 2003 engine in his 1999 Mustang would impress judges at auto shows.

After defendant testified, the People called the investigating officer, California Highway Patrol Detective John Evans, as a rebuttal witness. Evans testified that when defendant was arrested, defendant listed several items that he had replaced in his car, but failed to mention the new engine despite repeated questioning. On surrebuttal, defendant testified that the first thing Evans said to him was that the engine in his car was stolen. Evans then asked if anything else had been replaced, and defendant listed the other items.

After preliminary instructions to the jury, and outside the jurys presence, defense counsel asked if he could briefly recall Detective Evans because the detectives report of the interview with defendant indicated that defendant made a statement consistent with his testimonythat he took his 1999 Mustang to Wilson and paid him $2,800 to install an upgraded motor. The trial court denied the request on the ground that the additional testimony would be an undue consumption of time under Evidence Code section 352. The prosecutor proceeded to argue to the jury that defendant was lying, because if he did in fact pay Wilson for a new engine, he would have mentioned that to Detective Evans from the get-go in the interview.

After the jury verdict against him, defendant filed a pro. per. motion for new trial based on the argument that his trial counsel was ineffective for failing to question Evans on defendants consistent statement, i.e., that he took his 1999 Mustang to Wilson and paid him $2,800 to install an upgraded motor. The trial court recognized defense counsel had a conflict of interest with regard to the motion, and appointed new counsel. New counsel did not appear, and the court denied defendants motion for new counsel and indicated it wished to proceed. Defendant withdrew his new trial motion and asked to be sentenced.

In the prior appeal, we held that the trial court abused its discretion in denying defendants motion for new counsel to file a new trial motion. We recognized that defense counsels failure to ask Evans about the consistent statement, in a trial that was a contest of credibility, potentially deprived defendant of the important evidence that he had maintained from the beginning that he had paid Wilson for the new engineand had not stolen the 2003 Cobra engine. We further recognized that by denying defendant the opportunity for impartial legal advice on his claim of ineffective trial counsel, the trial court prejudiced defendants right to have the issue of ineffective counsel decided.

We remanded the matter with directions to appoint new counsel for defendant for the purpose of filing a motion for new trial.

On remand, the trial court appointed new counsel who filed a motion for new trial, arguing that trial counsel was ineffective for failing to ask Detective Evans about defendants consistent statement. New counsel also argued that the prosecutor committed misconduct by misleading the jury. New counsel claimed the prosecutor argued that defendant was lying, because if he did in fact pay Wilson for a new engine, he would have mentioned that to Detective Evans during the arrest interview and he never didwhen in fact the prosecutor knew that defendant had in fact mentioned that he had paid Wilson. As we will discuss, this is not an entirely accurate characterization of the prosecutors argument.

New counsel supported the motion with a declaration by trial counsel that his failure to ask Evans about the consistent statement was not the result of intent or a tactical purpose, but was an oversight on his part. New counsel also supported the motion with a copy of Evanss police report.

At the hearing on the motion, the trial court said: I was the trial judge. I dont know what else to say. . . . [] I did read over [the motion] and carefully consider it. I was the trial judge. . . . The court ruled there was no ineffective counsel and no prosecutorial misconduct, and denied the new trial motion.

II. DISCUSSION

Ineffective Trial Counsel. Defendant contends that we made certain findings in our prior opinion which inevitably lead to the conclusion that he was denied effective assistance of counsel, i.e. that trial counsels performance was deficient to defendants prejudice. Defendant argues that under the law-of-the-case doctrine, we must accordingly find that he is entitled to a new trial on the basis of ineffective counsel.

The short answer to defendants argument is simple: he misconstrues certain phraseology in our prior opinion and gives it much too strong of an import. We need not parse through the phraseology in detail: it suffices to say that we did not make any findings that compel a conclusion of ineffective counselwe simply held that defendant had arguable issues of ineffective counsel, that counsel may have been deficient to defendants potential prejudice, and that defendant was entitled to a hearing on his claim. He received that hearing. The trial court rejected his claims.[2]

In any case, defendant has not met his burden of showing that his trial counsels performancei.e., his oversight in not asking Evans about the consistent statementwas deficient. To meet that burden, defendant must show that counsels performance failed to meet an objective standard of reasonableness. (Strickland v. Washington (1984) 466 U.S. 668, 687-689.)

Defendants statement to Evans was laden with inconsistencies. A reasonable attorney may not have asked Evans the question because Evanss police report showed that defendant made the consistent statement only after he (1) listed numerous items other than the engine that he had replaced in his car, and (2) Evans informed defendant that the engine was stolen. Then, and only then, after defendant was not fourth coming [sic] with any information [and] after a lengthy discussion did defendant make the consistent statement. A reasonable attorney might have concluded that bringing this to the attention of the jury would harm, not benefit, his client, by suggesting the consistent statement was in fact a fabrication.

We also note that while defendant claims his credibility was damaged by the omission of the consistent statement, defendants credibility was assailed on multiple fronts. He admitted to the jury that he had a prior conviction for stealing a Mustang in 1996. Furthermore, the record in the prior proceedings reveals that defendant claimed to know nothing about the mechanics of Mustangs when there were clear indicia that he did, and that he knew that the engine for which he purportedly paid $2,800 was worth at least $8,000.

The trial court correctly concluded that there was no ineffectiveness of counsel.

Prosecutorial Misconduct. Defendant also contends the prosecutor committed misconduct by misleading the jury. Defendant argues that it was misconduct for the prosecutor to argue to the jury that defendant was lying, because if he did in fact pay Wilson for a new engine he would have mentioned that to Detective Evans during the interviewwhen the prosecutor knew that defendant did mention to Evans that he paid Wilson for a new engine.

First, defendant has waived the error by failing to object and seek a curative admonition at the time of the argument. (See People v. Brown (2003) 31 Cal.4th 518, 553.)[3]

Second, we conclude that there was no misconduct. The actual argument of the prosecutor was that defendant did not immediately tell Detective Evans that he paid Wilson for the new engine: i.e., in the prosecutors words, that he didnt say that from the get-go. In the context of the precise wording of the argument, it was clear that by get-go the prosecutor meant the very beginning of the interview. It is true that defendant did not mention paying Wilson for the new engine at the outset of the interview. Instead, he listed the various parts he had replaced in his car without mentioning the engine, and only mentioned the engine after a lengthy discussion.

Thus, the prosecutors argument was a fair comment on the evidence and reasonable inferences that can be drawn therefrom. (See People v. Hill (1998) 17 Cal.4th 800, 819.) There was no misconduct.

III. DISPOSITION

The judgment and the order denying a new trial are affirmed.

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Marchiano, P.J.

We concur:

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Swager, J.

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Margulies, J.

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[1] At defendants request, we have taken judicial notice of our prior opinion, as well as the entire record in the prior proceeding.

[2] Defendants contention that the trial court did not understand his argument is without merit.

[3] Defendant claims an objection would have been futile because the trial court had excluded the evidence of the consistent statement. But we are not prepared to presume futility in this case. There is no telling what the trial court would have done in response to a proper objection. In any case, the point is moot in light of our ultimate conclusion that there was no prosecutorial misconduct.