P. v. Perry

Filed 3/27/07 P. v. Perry CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Shasta)

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Defendant Stuart David Perry, with $650 in cash in his pocket, fled his neighbors trailer within seconds after a drug raid began. The officers seized two baggies of methamphetamine, scales, and pay-owe sheets. Defense counsel presented quite a lackluster defense: failing to voir dire any of the jurors, offering a cryptic and uninspiring opening statement, failing to object to expert testimony that his client was guilty, failing to object when the prosecutor commented on defendants failure to testify, meekly interrogating the experts, and failing to argue that the prosecution bore the burden of proof. A jury convicted defendant of possession for sale of a controlled substance. (Health & Saf. Code, 11378.)

For only the second time in nearly 25 years of public service, the public defender opined that his deputy had failed to provide defendant an adequate defense and requested the court to substitute counsel to bring a motion for a new trial. The court granted the request. But the court denied the new lawyers request for a continuance of the new trial motion for an evidentiary hearing and then denied the motion on the merits. On appeal, defendant asserts the trial court abused its discretion by denying him an evidentiary hearing and by denying his motion for a new trial based on the dismal performance of his lawyer. We must affirm, not because we find his lawyers representation up to par, but because we cannot say the trial court committed a manifest abuse of discretion by either denying the request for an evidentiary hearing or by denying the motion for a new trial.

FACTS

The essential facts were set forth in our first two sentences. While no drugs were found on defendants person or in his residence, he was present at his neighbors trailer when law enforcement officers executed a search warrant, and he attempted to flee with several hundred-dollar and twenty-dollar bills on his person. Telltale signs of drug sales were found in the trailer, including a sophisticated digital scale, pay-owe sheets, and methamphetamine packaged in convenient amounts known as eight balls. Defendant told the officers he earned the cash building a fence, but he was unable to provide any pertinent details such as who had employed him or where he had done the work. He failed to mention that his girlfriends 82-year-old grandmother had paid him $400 in cash a few days earlier, even though this was a defense he offered at trial.

DISCUSSION

I

We agree with defendant that the issues on appeal are broader than the Attorney General would have us believe. This is not merely a question of whether the trial court abused its discretion by denying a request for a continuance. Rather, the two questions posed are these: 1) Did the trial court abuse its discretion by failing to conduct an evidentiary hearing? and 2) Did the trial court abuse its discretion by denying the motion for a new trial based on the inadequacy of the representation provided by the deputy public defender?

The latitude accorded the trial court in these matters is extraordinarily broad. The determination of a motion for a new trial rests so completely within the courts discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. [Citations.] (People v. Cox (1991) 53 Cal.3d 618, 694.) And the decision whether to hear evidence before ruling on a new trial motion is discretionary. An evidentiary hearing should be held only when the trial court, in its discretion, concludes that an evidentiary hearing is necessary to resolve material, disputed issues of fact. [Citation.] (People v. Williams (1997) 16 Cal.4th 635, 686.)

Although ineffectiveness of counsel is not one of the statutorily enumerated grounds for a new trial motion, in People v. Fosselman (1983) 33 Cal.3d 572, our Supreme Court held: It is undeniable that trial judges are particularly well suited to observe courtroom performance and to rule on the adequacy of counsel in criminal cases tried before them. [Citation.] Thus, in appropriate circumstances justice will be expedited by avoiding appellate review, or habeas corpus proceedings, in favor of presenting the issue of counsels effectiveness to the trial court as the basis of a motion for new trial. If the court is able to determine the effectiveness issues on such motion, it should do so. (Id. at pp. 582-583.)

Mindful that a criminal defendant retains the right to commence habeas corpus proceedings to create a sufficient record for review of his ineffectiveness claim, we review the trial courts ruling on the evidentiary hearing for an abuse of discretion. Appearing at the motion for a new trial, new counsel requested a continuance to conduct an examination of two witnesses at an evidentiary hearing -- trial counsel and a so-called Strickland expert,^[1]who would testify how trial counsels performance fell below the requisite standard of practice. Neither witness was in court ready to testify at the hearing on the motion because, as new counsel confirmed, the courts secretary had informed him that witnesses would not be allowed to testify at a hearing on a motion. The new lawyer explained he would not be able to sustain his burden of demonstrating that trial counsels decisions were not tactical and that the deficiencies in his performance prejudiced defendant without the testimony of his experts.

People v. Cornwell (2005) 37 Cal.4th 50 (Cornwell) provides some guidance. In Cornwell, as here, the trial court concluded justice would not be expedited by entertaining defendants claim in a motion for new trial. (Id. at p. 101.) But, unlike the brief continuance requested here, the new attorney in Cornwell would have needed six months to investigate the case, particularly those matters that occurred outside the courtroom. (Id. at p. 100.) The court concluded that a six-month delay would not bring an expeditious conclusion to the proceedings, nor did resolution of the inadequacy claims depend on the courts particular advantage in having observed those matters that occurred inside the courtroom. (Id. at p. 101.) Thus, a motion for a new trial, including evidentiary proceedings, would be nothing more than a habeas corpus proceeding. (Ibid.)

Here too the court, in exercising its discretion, determined that an evidentiary hearing would not further the ends of justice but for different reasons. In this case, the issues raised by counsel did not involve matters that occurred outside the courtroom. Rather, the essential claims related to those matters the trial judge had observed. Defendant complains that his lawyer did not ask any of the potential jurors any questions, did not give effective opening and closing statements, failed to object to an experts opinion that he was guilty as charged, failed to introduce testimony by the owner of the trailer who also had been arrested and charged, and failed to raise any other meaningful objections. These were all matters as to which the trial judge was in the best position to evaluate whether counsels acts or omissions were those of a reasonably competent attorney. (People v. Andrade (2000) 79 Cal.App.4th 651, 660.)

We disagree with defendants premise that trial counsels disclosure of his tactics, or lack thereof, and an experts assessment of his performance were necessary to sustain his burden of proof. In the context of deciding whether an evidentiary hearing as part of a new trial motion would expedite justice in a way a habeas proceeding would not, it was not an abuse of discretion for the court to rely on its independent evaluation of defense counsels tactics and how they measured up to the requisite standard of performance. The courts decision was bolstered in part by the request for a continuance, thereby delaying the decision on the motion for a new trial. If the resolution of the incompetency claim could not be resolved at the hearing on the motion for a new trial, then the court could justifiably conclude there was little advantage in foregoing habeas proceedings. In sum, we cannot say the court abused its discretion by denying the continuance as well as the evidentiary hearing.

Although the more important issue is somewhat camouflaged in the opening brief, the remaining question is whether the trial court abused its discretion by denying the motion for a new trial on its merits. As the seasoned public defender himself pointed out, the deputys performance is troubling. Whether he lacked energy, passion, or preparation, he presented a listless defense. There is no question that the overwhelming evidence of guilt provided a challenge for any competent defense attorney and the essence of the defense, that is, that defendant was not in possession of the contraband, was sound. But his laissez-faire approach to voir dire, coupled with his passive approach to the prosecutors exploitation of the expert witnesses and his unfocused and uninspiring opening and closing statements, gave the appearance he had little, if anything, to say in his clients defense. The public defender admitted as much in his public admission that his deputy had failed his client.

Nevertheless, when a defendant attacks a verdict in a motion for a new trial on the ground of inadequate assistance of counsel, the focus is not just upon whether the representation actually received was competent. The inquiry is also focused on whether counsels challenged acts or omissions were prejudicial to the defendant. (People v. Dennis (1986) 177 Cal.App.3d 863, 870.) The court found that defendant was not prejudiced by his attorneys shortcomings and that it was not reasonably probable that a different result would have occurred absent his mistakes. We cannot say the trial court abused its discretion by reaching this conclusion.

Despite the uncontradicted evidence that defendant attempted to flee as soon as officers arrived and that he was in possession of $650 in cash, his lawyer attempted to persuade the jury through cross-examination of the law enforcement officers and closing argument that defendant was not in possession of the contraband. Each officer conceded that no drugs were confiscated from defendant. The seizure did not occur at his residence. Thus, according to defense counsel, defendant was caught at the wrong place at the wrong time. But there was insufficient evidence that any contraband belonged to him.

The jury, of course, rejected those arguments as was its prerogative. But the court could reasonably conclude that even a perfect performance by defense counsel could not have overcome the evidence against defendant or convinced the jury to acquit. No theatrics, connection with the jurors, incisive cross-examination, or effective oration could overcome defendants consciousness of guilt in attempting to flee or complicity evidenced by the number of hundred-dollar and twenty-dollar bills he had in his possession. As a consequence, we simply

cannot say the trial court abused its discretion by denying the motion for a new trial.

The judgment is affirmed.

RAYE , J.

We concur:

SIMS , Acting P.J.

MORRISON , J.

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^[1]Strickland v. Washington (1984) 466 U.S. 668 [80 L.Ed.2d 674].