P. v. Maxwell

Filed 6/16/06 P. v. Maxwell CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed.

Michael Maxwell appeals a judgment arising out of his conviction of one count each of sale of cocaine base and possession of cocaine base for sale. He contends that there was insufficient evidence to support his convictions and that the trial court abused its discretion in denying his motion for a new trial based on ineffective assistance of counsel. We find his arguments unavailing and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In the evening of January 6, 2004, San Diego Police Officer Sarah Johnson, an undercover narcotics officer, received information that a man named "Antonio" was selling drugs. Officer Johnson called the telephone number she was given and the man who answered the phone indicated that he was "Antonio." Officer Johnson asked "Antonio" if he was "doing anything," street talk for selling drugs. "Antonio" asked her what she needed and she told him "60," meaning $60 worth of drugs. "Antonio" told Officer Johnson to meet him at the Chevron station near 40th Street and University Avenue.

Officer Johnson went to the gas station, met with "Antonio" (who was in fact Maxwell) and gave him $60 in prerecorded bills in exchange for .72 grams of cocaine base. Officer Johnson signaled other officers who followed Maxwell; although Maxwell did not initially stop even after the officers turned on their overhead lights and sirens, the officers ultimately succeeded in pulling him over and arrested him. The officer who transported Maxwell to the police station observed symptoms suggesting that Maxwell was under the influence at that time and took a urine sample that later tested positive for the presence of cocaine; he also found a "wad" of money in Maxwell's pocket that included the prerecorded bills.

Maxwell was charged with various crimes, including sale of cocaine (count 1) and possession of cocaine for sale (count 2). Prior to trial, Maxwell made two Marsden motions (one of which resulted in a change of counsel) and, on the day of trial, made a request to represent himself, explaining that he was frustrated with his attorney, William Apgar, for refusing to ask the court to read a document he had prepared regarding how he was being treated by the sheriff's department while in custody. After the court read the document, Maxwell withdrew his request for self-representation.

At trial, the prosecution introduced evidence of the facts as outlined above; the defense pointed out various inconsistencies in the prosecution evidence and proceeded on the theory that Maxwell had merely met with Johnson to sell her his car. A jury convicted Maxwell of counts 1 and 2, but acquitted him of the remaining charges. The court found true allegations that Maxwell had previously been convicted of selling or furnishing controlled substances. After trial, Maxwell wrote numerous letters to the court, complaining about Apgar's conduct at trial and accusing Apgar of misconduct. After the court appointed a new attorney to represent him, Maxwell moved for a new trial on the grounds that Apgar precluded him from testifying and that his convictions were based on perjured testimony by the prosecution's witnesses. The court held an evidentiary hearing at which both Apgar and Maxwell testified and thereafter denied the motion and sentenced Maxwell to 8 years in prison. Maxwell appeals.

DISCUSSION

1. Sufficiency of the Evidence to Support the Convictions

Maxwell challenges the sufficiency of the evidence to support his convictions, arguing that the prosecution's evidence was so inconsistent and contained so many discrepancies that it was inherently implausible. In reviewing the sufficiency of the evidence to support a conviction, we determine "whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged." (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13, quoting People v. Ainsworth (1988) 45 Cal.3d 984, 1022.) Under this standard, we review the facts adduced at trial in the light most favorable to the judgment, drawing all inferences in support of the judgment to determine whether there is substantial direct or circumstantial evidence the defendant committed the charged crime. (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) We cannot reweigh the evidence, as the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code, § 312.) The test here is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jury's conclusions. (People v. Mincey (1992) 2 Cal.4th 408, 432.)

Each element of the offense must be supported by evidence that is "reasonable in nature, credible, and of solid value." (People v. Johnson (1980) 26 Cal.3d 557, 576, quoting Estate of Teed (1952) 112 Cal.App.2d 638, 644.) Although evidence of the offense must be evaluated considering the whole record (id. at p. 577), the testimony of even one witness constitutes substantial evidence, so long as that testimony is not inherently incredible. (People v. Provencio (1989) 210 Cal.App.3d 290, 306.) We cannot reject the testimony of a witness the trier of fact chose to believe, unless the testimony is physically impossible or its falsity is apparent without resorting to inference or deduction. (People v. Barnes (1986) 42 Cal.3d 284, 306.) The mere fact that a witness gives contradictory, inconsistent or suspicious testimony does not render it inherently improbable; "[i]t is for the jury to consider such inconsistencies and determine whether they were such as to justify the repudiation of the testimony of the witness in its entirety.'" (People v. Fremont (1941) 47 Cal.App.2d 341, 349.)

Here, Maxwell identifies 22 inconsistencies in the evidence, including Officer Johnson's testimony about how long she had been a detective, what she was wearing at the time of the drug transaction, where she was when she called him, how long after the call she arrived at the Chevron station and which hand she took the cocaine from him with, and contends that there is no evidence, other than Officer Johnson's testimony, that the prerecorded $20 bills were found on him after his arrest. As Maxwell himself admits, however, many of these inconsistencies have no direct bearing on the elements of the charged offenses; further, to the extent the inconsistencies do relate to the elements and one or more of the witnesses were impeached by them, they were not of such a nature as to render the testimony supporting the elements of the charged offenses inherently improbable in its entirety. These inconsistencies, which were emphasized repeatedly by defense counsel during direct and cross-examination of the witnesses and in closing argument, related to the credibility of the prosecution's witnesses, something that is within the exclusive province of the jury to determine. Although the prosecution's witnesses were perhaps less than ideal, we cannot overturn the jury's determinations on this basis. (Compare People v. Headlee (1941) 18 Cal.2d 266, 273-274 [holding witness testimony that the defendant committed kidnapping for robbery, robbery and rape was incredible on its face in light of evidence, including the admissions of those same witnesses, that they never objected to the defendant's conduct or attempted to stop him or to escape despite ample opportunity].)

2. Denial of Motion for New Trial

A trial court may order a new trial where there has been ineffective assistance of counsel, even though this is not one of the grounds for a new trial set forth in Penal Code section 1181. (People v. Fosselman (1983) 33 Cal.3d 572, 582-583.) To establish ineffective assistance, a defendant must demonstrate that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel's deficient representation resulted in prejudice to him, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant. (In re Jones (1996) 13 Cal.4th 552, 561; Strickland v. Washington (1984) 466 U.S. 668, 687, 694.)

A court's review of defense counsel's performance is a deferential one. It indulges a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. (In re Jones, supra, 13 Cal.4th at p. 561.) On appeal, we must accept the court's credibility assessments and factual findings that are supported by substantial evidence and independently determine whether the defendant has established by a preponderance of substantial, credible evidence that his counsel's performance was deficient and, if so, whether the defendant suffered prejudice. (In re Alvernaz (1992) 2 Cal.4th 924, 945.) Where the record shows that counsel's omissions "resulted from an informed tactical choice within the range of reasonable competence," we must affirm the conviction. (People v. Pope (1979) 23 Cal.3d 412, 425, overruled on another ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.)

A. Not Having Maxwell Testify

A defendant has a constitutional right to testify (People v. Bradford (1997) 14 Cal.4th 1005, 1053), a right he may not be deprived of even if his attorney objects to his testifying, provided that he demands to testify in a timely and adequate manner. (People v. Hayes (1991) 229 Cal.App.3d 1226, 1231-1232.) The evidence presented in connection with the new trial motion was conflicting on the circumstances surrounding Maxwell's desire to testify. According to Apgar's testimony, Maxwell initially wanted to testify, although he equivocated on this after being advised that evidence of his prior convictions involving moral turpitude would be rendered admissible if he did so, and ultimately made the decision to forego testifying at trial. By contrast, Maxwell testified that he expressed his unequivocal desire to testify, repeatedly to Apgar and on one occasion in front of the court and the prosecutor, but that his request went unheeded.

In ruling on the motion, the court observed that although Maxwell was originally adamant that he was going to testify, he changed his mind; it also found Agar's testimony that Maxwell stuck with his decision not to testify was more credible than Maxwell's testimony to the contrary. In this regard, the court also noted that Maxwell had not been either reluctant or soft-spoken in expressing his views in the proceedings, a matter that is well-established in the record before us. Despite this, Maxwell did not at any subsequent point during trial inform the court that he desired to testify on his own behalf, but was being precluded from doing so. The trial court's implied finding that Maxwell did not retain his original desire to testify (at least until after the jury's verdict) is amply supported by the evidence in the record.

The issue thus becomes whether Apgar's advice and decision not to call Maxwell to testify was within the realm of professional competence. We conclude it was. Apgar testified that he did not want to put Maxwell on the stand, primarily so that the jury would not hear of his prior criminal record. In addition, by keeping Maxwell from testifying, Apgar insulated Maxwell, who had made misstatements to him and his investigator prior to trial and who had acted in an excitable, impulsive and somewhat uncontrollable manner at various points in the proceedings, from being subjected to cross-examination by the prosecutor or having his credibility assessed by the jury. These are valid tactical reasons supporting Apgar's advice, particularly in light of the existing inconsistencies in the prosecution's evidence, and, as noted above, substantial evidence indicates that Maxwell agreed with the decision not to testify. Accordingly, we conclude that Maxwell did not suffer ineffective assistance of counsel in connection with the decision not to call him to testify as a witness. (Compare People v. Callahan (2004) 124 Cal.App.4th 198, 212-215 [upholding the trial court's decision to grant a new trial based on counsel's advice that the defendant not testify where uncontroverted prosecution evidence established that the defendant was guilty of first degree murder and the defendant's testimony at the motion for new trial hearing supported facts that would have led to a more favorable result]; People v. Andrade (2000) 79 Cal.App.4th 651, 659-662 [similar, noting that an appellate court is reluctant to second-guess a trial court's discretionary ruling that tactical decisions by defense counsel resulted in an unfair trial].)

B. Allowing Johnson to be Excused as a Witness

We likewise conclude that Apgar did not provide Maxwell with ineffective assistance by agreeing that Johnson could be excused as a witness early in the trial, before many of the other officers testified. At the hearing on the motion for new trial, Apgar testified that he had thoroughly cross-examined Johnson on the matters raised by the prosecution on direct and the inconsistencies between her trial testimony and the testimony she gave at the preliminary hearing; he also testified that he did not plan to recall Johnson as a witness, and thus agreed to her excusal, because in his experience, recalling a prosecution witness merely "reinforc[es] the People's case." Indeed recalling Johnson as a witness would have given her an opportunity to provide explanations for the inconsistencies in the prosecution's evidence. This is a valid tactical reason for allowing Johnson to be excused as a witness and thus we cannot conclude that Apgar's decision was outside the range of reasonable competence.

DISPOSITION

The judgment is affirmed.

McINTYRE, Acting P.J.

WE CONCUR:

O'ROURKE, J.

IRION, J.

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