P. v. Villanueva

Filed 3/9/07 P. v. Villanueva CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. W. Kent Hamlin, Judge.

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

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

On December 8, 2005, a jury convicted appellant, Arnulfo Anthony Villanueva, of assault with a deadly weapon likely to cause great bodily injury (Pen. Code,  245, subd. (a)(1), count one), possession of methamphetamine (Health & Saf. Code,  11377, subd. (a), count two), and giving false information to an officer (Pen. Code,  148.9, subd. (a), count three). The jury further found true an allegation that appellant personally inflicted great bodily injury on the victim (Pen. Code,  12022.7, subd. (a)). The trial court sentenced appellant to the upper four-year term on count one, a consecutive three-year term for the great bodily injury enhancement, and a consecutive term of eight months on count two for a total prison term of seven years eight months.^[1]

On appeal, appellant contends the trial court erred in denying trial counsels request for a continuance after counsel informed the court he had failed to examine photographic exhibits prior to the beginning of trial. Appellant further contends his counsel was ineffective for failing to view the photographic exhibits prior to the beginning of trial. We will affirm.

FACTS

Prosecution

At 3:30 p.m. on May 6, 2005, Matthew Walthers was driving down Tulare Street on his way to the Dollar Tree store in a red Acura with five passengers. Walthers was in a hurry. A Ford Bronco in front of him was driving slowly. Walthers passed the Bronco, which was in the left lane, from the right lane. When Walthers finished this maneuver, he pulled back into the left lane in front of the Bronco. Walthers made eye contact with the driver of the Bronco as he passed it. Walthers could tell after passing the Bronco that the driver was angry and swearing at him.

Walthers pulled into the parking lot near the Dollar Tree and parked where there were no other cars. Walthers exited the car and released his seat to let a rear passenger exit. Walthers took a step back and heard someone yelling and cussing. Walthers turned around and saw appellant running toward him with something sharp in his hand that was wrapped in a T-shirt. Walthers jumped back with his hands up in the air. Appellant stabbed him in the upper right armpit. In seconds, Walthers was covered in blood.

Walthers went to the passenger seat of his car to let someone else drive. He leaned against the door trying to stay conscious. They chased the Bronco around the parking lot to obtain its license plate number. Walthers was bleeding profusely and asked to go to the hospital. The last thing Walthers remembered when he awoke in a hospital bed was chasing the Bronco to get the license plate number.

Walthers spent three days in the hospital and had two surgeries as a result of his injuries. Walthers lost use of his right hand and was unsure if he would be able to move it again. Walthers is right-handed and had to quit his job. Walthers and his passengers were all unarmed when appellant attacked him.

Souchanda Si was a passenger in Walterss car. Si saw appellant run toward Walthers and then run back to his Bronco. Walthers looked like he had been stabbed and was bleeding profusely. Walthers got back into the car and another passenger drove. They chased appellants car long enough to get the license plate number and drove Walthers to the hospital. Si did not have a weapon and he saw no other weapons in the car.^[2]

Fresno Police Sergeant William Grove learned the Bronco was registered to a resident at 4406 East McKenzie and proceeded there. When Grove arrived, he found the Bronco parked in front of the residence. Appellant was seated inside the Bronco. Appellant was wearing a denim jacket but was wearing no shirt. Appellant had four or five minor scratch marks on his chest. Appellant identified himself as Alfredo Garcia. Police later determined his true name was Arnulfo Villanueva.

Appellant was arrested and searched. Officers found a utility knife in his right pants pocket. There did not appear to be any blood on the knife or around the pocket of the pants. Appellant was also in possession of a small plastic bag containing methamphetamine.

Officer Art Rodriguez interrogated appellant. Appellant told Rodriguez that he was westbound on Tulare Street when Walthers pulled in front of him in a small red car, nearly striking appellants car. As appellant continued driving, the red car was following him. Appellant pulled over to let the red car pass him. Instead, the red car pulled up behind him. Appellant proceeded down Tulare Street, pulled into a parking lot, and threw his arms into the air to show he was not afraid. The driver of the red car exited his car and also threw his arms into the air. Appellant pulled out his utility knife and swung it near Waltherss right armpit, injurying him.

Appellant had consumed four beers earlier that day. Appellant admitted he never saw a weapon and that no one talked about a weapon to him. Appellant asserted that one of the passengers in Waltherss car placed his hands inside his coat, trying to simulate some sort of weapon. Appellant acknowledged he was never touched by Walthers or the other occupants of the red car. Appellant drank two more beers and drove to the residence. Appellant stated that the scratch marks on his chest were from an unrelated incident.

Defense

Ralph Sanchez was in the Dollar Tree parking lot when he saw a Bronco and a red car enter the lot at high speed. Sanchez explained that the red car was chasing the Bronco. The vehicles stopped suddenly. Appellant exited the Bronco and a tall White male exited the red car. The White male threw up his arms in what looked to Sanchez like a challenge. Each man walked toward the other. The White male seemed upset. Appellant did not appear aggressive. Although Sanchez told the police appellants arm was wrapped in a T-shirt, he now thought it was wrapped in gauze.

Sanchez saw appellant strike the other man under the armpit. Sanchez did not see the other man with a weapon. Sanchez heard the White male say, He fucking stabbed me with a knife. Sanchez saw appellant run back to the Bronco and saw the red car chasing appellant. Sanchez acknowledged that he did not remember the incident well. Although Sanchez earlier stated the two vehicles were only five to ten feet apart, he admitted on cross-examination that he did not remember how far apart the vehicles were from one another.

MOTION TO CONTINUE TRIAL

Appellant contends the trial court erred in denying his motion to continue the case so defense counsel could review photographs prepared for the prosecution. We reject appellants argument.

Continuance Motion

At the commencement of trial, prior to jury selection, defense counsel, Mr. Herman, informed the court that prior defense counsel had requested photographs taken for the prosecution. Herman had not yet seen the photographs. Appellant had informed Herman that the photographs were an integral part of his defense. The prosecutor had just shown Herman some of the photographs, but Herman explained that it appeared there were about 140 photographs and he needed copies of all of them. Herman believed that because of the number of photographs, it would take five days to reproduce a full set of copies.

The prosecutor explained that she believed the former defense attorney had copies of the photographs and she would assist Herman in obtaining them. The trial court noted that the presiding judge would have his hackles raised because the attorneys had indicated they were ready for trial when they earlier appeared before the master calendar court. Herman acknowledged that he announced he was ready for trial five days earlier in Department 96 and again that day in Department 50.

Herman explained it was his own oversight that he did not secure the photographs. He had sent a fax requesting copies of the photographs to the prosecutor over two weeks prior to trial. The court denied the continuance motion, but noted that Herman could view the prosecutors photographs in court. If counsel found they inaccurately depicted the scene, he could send an investigator to shoot more photographs. The court noted the scene of the incident was only a mile away from the court. The court found that counsel would still be able to effectively represent his client even without his own set of photographs.

The prosecution submitted four photographs at trial. Exhibit No. 1 was a photograph depicting the license plate from appellants car. Exhibit No. 2 was a photograph of appellants Bronco. Exhibit No. 3 was a photograph of Waltherss car. Exhibit No. 4 showed Waltherss blood inside his car. No other photographs were admitted into evidence.

Analysis

Granting or denying a motion for continuance in the midst of trial lies within the sound discretion of the trial court. The court must consider not only the benefit to the moving party but also the likelihood that such benefit would result, the burden on witnesses, jurors, and the court. Above all, the court must consider whether substantial justice will be accomplished or defeated by granting the motion. In the absence of a clear showing of an abuse of discretion and prejudice to the defendant, a denial of a motion for continuance does not require reversal of a conviction.^[3] (People v. Panah (2005) 35 Cal.4th 395, 423.) The trial courts duty to conduct judicial business efficiently cannot trump the defendants right to present a defense in the manner he or she desires, particularly where accommodation to the defendant would have only a slight impact on efficiency. (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.)

Appellant argues he was prejudiced by his counsels inability to view the photographs in more detail because photographs of blood drops in the parking lot may have shown, for instance, that Walthers was not wounded by his car but that he moved toward the appellant. This may have caused the jury to question Waltherss testimony. Photographs of skid marks in the parking lot could have shown that appellant was the one afraid of Walthers and the passengers in his car. Appellant argues that because defense counsel had never seen the photographs, he was not adequately prepared for the testimony of the witnesses. Appellant further posits that the trial court had no idea what the photographs showed and thus could not know whether they were relevant to appellants defense.

Defense counsel, however, apparently had an opportunity prior to the testimony of witnesses to view all 140 photographs. The examination of witnesses began the day after the continuance motion. Presumably, had counsel seen anything essential to appellants defense, he would have again moved the court for a continuance to gather more evidence. Appellant engages in pure speculation that he was denied a fair defense only because counsel had not viewed the photographs prior to trial. The record does not support appellants implied assertion that the photographs contained exculpatory evidence. Had this been the case, defense counsel was free to admit any photograph available to the prosecution into evidence. Counsel did not do so.

The only photographs admitted into evidence were pictures of appellants vehicle, the license plate on his vehicle, the victims car, and the victims blood in his car. From the record before us, it appears the photographs were unremarkable depictions of the vehicles and the crime scene. The showing by defense counsel was not adequate to justify a continuance. The appellant has failed to demonstrate prejudice. Accordingly, we find the trial court did not abuse its discretion in denying the motion for continuance.

INEFFECTIVE REPRESENTATION OF TRIAL COUNSEL

Appellant argues that his trial counsels admission that he forgot to obtain copies of the photographs prior to trial clearly demonstrates he failed to fulfill his obligations as well as a dereliction of duty. We disagree.

The defendant has the burden of proving ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of trial counsel, the defendant must establish not only deficient performance, which is performance below an objective standard of reasonableness, but also prejudice. A court must indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance. Tactical errors are generally not deemed reversible. Counsels decision making is evaluated in the context of the available facts. To the extent the record fails to disclose why counsel acted or failed to act in the manner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or, unless there simply could be no satisfactory explanation. Prejudice must be affirmatively proved. The record must affirmatively demonstrate a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. (People v. Maury (2003) 30 Cal.4th 342, 389.)

First, we cannot assume, as appellant impliedly invites to do, that trial counsel failed to adequately view the photographs prior to the testimony of witnesses. To find that counsels representation was inadequate, we would have to find that counsel totally failed to ever view the photographs. Counsel seemed most concerned during the continuance motion in obtaining his own copies of the photographs. We cannot presume that counsel failed to weigh the evidentiary value, if any, of the photographs not admitted into evidence. Second, appellant has failed to demonstrate the requisite prejudice to establish that his trial counsel was ineffective. There is no evidence in the record before us that any photograph not admitted into evidence was exculpatory or that appellants defense was compromised because defense counsel did not have his own copies of the photographs.

DISPOSITION

The judgment is affirmed.

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^*Before Vartabedian, Acting P.J., Harris, J., and Levy, J.

^[1] Among the aggravating factors noted by the trial court, it found appellant had prior misdemeanor convictions as an adult and served a prison term in Utah. The conviction in Utah was for felony robbery. The court further found appellant was on probation or parole when he committed the instant offense.

^[2] Bouavanh Srimala was also a passenger in Waltherss car. Her testimony was nearly identical to Sis testimony.

^[3] The formulation of these concepts has scarcely changed since early statehood. Under common law, applications for continuances were addressed to the sound discretion of the trial court. Following statute and early principles of due process, if the evidence (usually an unavailable witness) was material to the defense, trial courts were admonished to postpone a trial. (People v. Diaz (1856) 6 Cal. 248, 249-250.) Continuances, however, could only be granted upon a proper showing, and, absent such a showing, a trial court did not abuse its discretion in denying the motion. (People v. Mortimer (1873) 46 Cal. 114, 119-120; People v. Putman (1900) 129 Cal. 258, 260; also see People v. Thompson (1854) 4 Cal. 238, 241.)