P. v. Waldron

Filed 4/14/06 P. v. Waldron 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, Louis R. Hanoian, Judge. Affirmed.

Ray Nolan Waldron was found guilty of first degree murder, attempted first degree murder, assault with a firearm and being a felon in possession of a firearm. It was found true the crimes were committed to benefit a criminal street gang within the meaning of Penal Code^[1] section 182.22, subdivision (b)(1), and that Waldron had been convicted of two serious felonies within the meaning of section 667, subdivisions (b) through (i). In addition, various firearm use and great bodily injury allegations were found true. Waldron was sentenced to a prison term of 175 years to life plus 3 years. He appeals, arguing ineffective assistance of counsel, error in admission of photographic identifications and in the denial of a defense request for a continuance.

FACTS

A. Prosecution Case

1. The Shooting

In the early morning hours of September 27, 2003, a confrontation took place outside Kelly's Pub (Kelly's) in El Cajon that resulted in the death of David Florentine and the shooting of Anthony Nunn.

Kevin Brennan, William Pike, appellant and about nine other men were walking up to Kelly's. Several of the men wore black and white clothing, the "colors" of the Mongol motorcycle club (the Mongols), and had "Mongols" written on their apparel. Appellant is a member of the Mongols. The Mongols and the Hell's Angels are rival gangs with a history of committing violent acts against each other.

As appellant and the other men approached, Michael Hoppe, Kelly's head of security, was escorting Florentine, who was associated with the Hell's Angels, and several of Florentine's friends, including Nunn, out of the bar towards their vehicles in the parking lot. As they walked, Florentine told Hoppe to call the police because the Mongols had arrived. Hoppe told appellant and Pike they could not enter the bar because they were wearing gang colors. Pike combatively replied he would not remove his colors. Pike saw Florentine and stated he knew him. Words were exchanged between Florentine and Pike. As the situation developed, appellant lifted his shirt, pulled a gun from his waistband and shot both Florentine and Nunn.

Florentine, hit by five bullets, died at the scene. Nunn was also wounded but survived. Officers found a folded pocketknife in Florentine's hand.

B. Defense Case

Roy Dewey was with Florentine and Nunn when the shooting occurred. Dewey identified Pike, not appellant, as the man who shot Florentine and Nunn.

A psychologist testified concerning the difficulty of making an accurate eyewitness identification under the conditions that existed at the time of the shooting.

Based on either their association with Florentine or their general antipathy to members of the Mongols or because they were in one manner or another intimidated, defense counsel argued the prosecution witnesses embellished or invented their statements and testimony incriminating appellant. Counsel argued the shooter was Pike.

DISCUSSION

A. Ineffective Assistance of Counsel

Appellant argues the conduct of his trial attorney denied him the effective assistance of counsel. Appellant argues counsel failed to adequately investigate the case, failed to object to inadmissible and damaging evidence, entered into stipulations harmful to the defense and failed to present a claim of self-defense or imperfect self-defense. Appellant argues even if no individual act of ineffective assistance prejudiced him, the collective effect of counsel inadequacies was prejudicial.

1. Law

A criminal defendant is entitled to the effective assistance of counsel. It is the defendant's burden to demonstrate the inadequacy of trial counsel. A defendant must show both that the assistance given was deficient, that is, it fell below an objective standard of reasonableness under prevailing professional norms, and that it was prejudicial. Prejudice exists when it is reasonably probable that but for such deficient assistance the result of the proceeding would have been different. A reasonable probability is one sufficient to undermine confidence in the outcome of the case. We defer to counsel's reasonable tactical decisions and indulge a strong presumption counsel's conduct falls within the wide range of reasonable professional assistance. Defendant's burden is difficult to carry on direct appeal. We reverse on the ground of inadequate assistance on appeal only if the record affirmatively discloses no rational tactical purpose for counsel's act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 436-437.)

"Competent counsel is not required to make all conceivable motions or to leave an exhaustive paper trail for the sake of the record. Rather, competent counsel should realistically examine the case, the evidence, and the issues, and pursue those avenues of defense that, to their best and reasonable professional judgment seem appropriate under the circumstances. (See generally, People v. Eckstrom (1974) 43 Cal.App.3d 996, 1002, 1003.)" (People v. Freeman (1994) 8 Cal.4th 450, 509.)

Moreover, when " 'the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." ' (People v. Kipp, supra, at p. 367, quoting People v. Pope (1979) 23 Cal.3d 412, 426.)" (People v. Earp (1999) 20 Cal.4th 826, 871.)

2. Background

Appellant was represented at the preliminary hearing and at trial by retained counsel Roger Agajanian. On June 24, 2004, after the verdicts were returned but before sentencing, counsel was relieved and appellant was allowed to represent himself. Appellant filed a motion for new trial making several contentions, including that he was ineffectively represented at trial. With the motion, appellant filed a list of claimed deficiencies in trial counsel investigation and conduct of the case. The list was not in the form of a declaration. On January 8, 2005, Craig Leff, who now represents appellant on appeal, was substituted into the case. While not substituted into the case until June 2005, Leff had been on the case since September 2004 and prepared the motion for new trial.

On January 24, 2004, a hearing was held on appellant's new trial motion. Jose Castro, an old friend of appellant, testified that, contrary to her testimony at trial, Sharon Fox, a bartender at Kelly's and eyewitness to the shooting, was well acquainted with appellant. While Fox's relationship with appellant was at first a friendly one, Fox later became very cool to appellant.

The trial court concluded appellant failed to demonstrate ineffective assistance of counsel. The court noted that while appellant asserted defense counsel failed to do a host of things, he offered no evidence supporting those assertions. The claims of inadequate representation were based merely on speculation. The court noted trial counsel was active in his defense of appellant and his presentation of the defense case revealed preparation and investigation.

3. Discussion

Appellant argues counsel failed to adequately investigate the case, failed to object to inadmissible and damaging evidence, entered into stipulations harmful to the defense and failed to present a claim of self-defense or imperfect self-defense. Appellant argues even if no individual act of ineffective assistance prejudiced him, the collective effect of counsel inadequacies was prejudicial.

a. Failure to Investigate

Appellant contends counsel failed to adequately investigate the case. He argues a proper investigation might have shown inaccuracies in witnesses' statements and testimony, might have revealed additional witnesses favorable to the defense and might have supported a claim of self-defense or imperfect self-defense.

As appellant notes, such claims are generally raised not by appeal but by a petition for writ of habeas corpus. This is so because the record on appeal does not reveal with any specificity the efforts made by counsel to investigate the case or counsel's state of mind in deciding how best to prepare the defense. (See People v. Pope (1979) 23 Cal.3d 412, 426.) In his opening brief appellant states he will file a companion petition for a writ of habeas corpus exploring his claims of ineffective assistance. As yet no petition has been filed.

Appellant cites to portions of the record on appeal that he argues demonstrate trial counsel was late in obtaining the assistance of an investigator. He argues this late retention of investigative assistance disadvantaged and limited the defense in several ways. We know, however, that at the time of trial counsel was assisted by an investigator. We do not know how that investigator was used or what efforts he made or did not make. We do not know what information trial counsel had from appellant and how that might have shaped counsel's approach to the investigation of and presentation of the defense case. The burden is on appellant to show ineffective assistance based on inadequate investigation. On the record before this court he has failed to do so.

Insofar as appellant contends counsel was ineffective for failing to fully investigate or offer a defense of self-defense or imperfect self-defense, the record does not support his claim. The defense presented was that appellant was at least misidentified and perhaps was the victim of a conspiracy to incriminate him. There was evidence supporting those claims. While there is no absolute prescription against offering inconsistent defenses, judgment, based on all the facts known to counsel, must be employed in deciding whether to so proceed. We are simply unaware of the circumstances that led to counsel's tactical decisions. We do not know, for example, appellant's attitude about testifying. Counsel might conclude a jury would understand a defendant not testifying when the defense was misidentification but be less forgiving when the defense, like self-defense, ultimately relied on the defendant's state of mind. Even if appellant was willing to testify he acted in self-defense, he would, thereby, have forfeited his claim of misidentification. Based on this record appellant has failed show that counsel was ineffective in not raising a claim of self-defense or imperfect self-defense.

b. Testimony Concerning the Mongols and the Hell's Angels

Appellant argues trial counsel provided ineffective assistance when he failed to object to the testimony of the prosecution motorcycle gang expert John Ciccone concerning the history of the Mongols and the Hell's Angels and the rivalry and history of violence between the organizations. He also argues counsel was ineffective in failing to object to the testimony of sheriff's detective Curt Goldberg concerning items taken from appellant's truck bearing Mongols markings. In a short argument appellant contends this evidence was relevant to the issue of whether appellant was the killer and was highly prejudicial.

The fact of appellant's, the victim's and the witnesses' involvement with motorcycle gangs and the history and nature of those gangs were inescapable parts of both the prosecution and defense's cases. It would be impossible to understand the dynamics of the confrontation that led to the shooting without understanding the gang context in which it occurred. Defense counsel could not have foreclosed totally the introduction of such evidence. Appellant has not identified any particular questions or lines of inquiry to which he believes an objection should have been interposed. Appellant has failed to demonstrate trial counsel provided ineffective assistance in failing to object to the introduction of evidence concerning motorcycle gangs or appellant's possession of items related to the Mongols.

c. Stipulation Concerning Tattoos

In another short argument appellant contends trial counsel was ineffective for stipulating to the fact appellant had tattoos on his arms. He argues the stipulation foreclosed him from questioning eyewitnesses concerning "possible" differences between appellant's tattoos and those described by the witnesses as being on the shooter's arms.

At the in limine hearing it was noted the shooter had tattoos on his arms. Appellant has tattoos on his arms. The parties and the trial court were concerned, however, that because the tattoos on appellant's arm included one saying "Fuck Peace" and another in the form of a swastika, they might be prejudicial. Trial counsel asked that a photograph of the tattoos on appellant's arm not be admitted. The prosecutor suggested the parties stipulate appellant had tattoos on his arm. Defense counsel stated he was unaware of any eyewitness who could testify concerning any identifiable tattoo on the shooter. The trial court concluded photographs of appellant showing he was tattooed but not showing the nature of the tattoos would be admitted. The court stated its ruling might be different if an eyewitness could identify a particular tattoo on the shooter.

While the parties agree counsel stipulated appellant had tattoos on his arms, we finding nothing in the record to which they cite supporting that claim. In any event there is no evidence a cross-examination concerning the particular nature of appellant's tattoos would have done anything but prejudice him.^[2]

B. Suggestive Photographic Line-up

Appellant argues the photographic line-ups shown various witnesses were unduly suggestive. Appellant notes the line-up containing his photograph was shown to seven witnesses. In five instances appellant's photograph was in position number four and in two instances it was in position number two. Appellant argues to avoid the possibility witnesses would reveal to each other the position of appellant's photograph in the line-up, the police should have changed the position of his photograph more frequently. Appellant notes the fleeting nature of most of the witnesses' view of the shooter and that 13 days elapsed between the shooting and the display of the line-ups to witnesses.

1. Law

"A pretrial identification procedure violates a defendant's due process rights if it is so impermissibly suggestive that it creates a very substantial likelihood of irreparable misidentification. The defendant bears the burden of proving the unfairness as a 'demonstrable reality,' not just speculation. [Citations.]" (People v. Contreras (1993) 17 Cal.App.4th 813, 819.) The determination of whether an identification procedure is impermissibly suggestive is based on the totality of the circumstances. "Generally, a pretrial procedure will only be deemed unfair if it suggests in advance of a witness's identification the identity of the person suspected by the police." (People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.)

In People v. Gordon (1990) 50 Cal.3d 1223, 1242, the court explained the mode of analysis. The first question is whether the identification procedure was unduly suggestive and unnecessary. If it is found that it was, the issue remains whether the identification was nonetheless reliable under all the circumstances, taking into account such factors as the opportunity of the witness to see the criminal at the time of the crime, the degree of the witnesses attention, the accuracy of the witnesses prior descriptions, the level of certainty demonstrated in the identification, and the time between the crime and the show-up. (See also People v. Nguyen (1994) 23 Cal.App.4th 32, 37-38.)

2. Discussion

Appellant's claim the photographic procedures in this case were unduly suggestive was not raised at trial and is waived. (People v. Medina (1995) 11 Cal.4th 694, 783.)

In any case we note appellant's assertion the line-up was unduly suggestive is not based on a claim it was conducted in a manner suggesting he was the person suspected by the police but rather on the possibility the procedure allowed for witness collusion. While that claim might affect the weight to which the identifications were entitled, it did not render them constitutionally suspect. (People v. Brandon, supra, 32 Cal.App.4th at pp. 1051-1052.)

C. Denial of Continuance

Prior to trial the defense eyewitness identification expert became seriously ill and had to be replaced. Appellant argues the trial court abused its discretion when it denied a continuance to allow the replacement expert time to prepare.

"The determination of whether a continuance should be granted rests within the sound discretion of the trial court, although that discretion may not be exercised so as to deprive the defendant or his attorney of a reasonable opportunity to prepare." (People v. Sakarias (2000) 22 Cal.4th 596, 646.)

1. Background

On May 20, 2004, defense counsel filed a motion seeking a continuance of trial. By declaration counsel explained its eyewitness identification expert, Dr. Louis Broussard, informed him on May 14, 2004, he was seriously ill and would not be able to testify. With the assistance of the trial court, the prosecutor and the public defender's office counsel retained a replacement expert, Dr. Thomas Macspeiden. Counsel stated he planned to have all necessary material to Dr. Macspeiden by May 24, 2004. Dr. Macspeiden told counsel that based on his schedule he could be prepared to testify on or after June 14, 2004.

A hearing on the motion was heard on May 20, 2004. The prosecutor objected to an extended continuance, stating if trial was delayed too long he believed some of his witnesses might be unavailable. He argued it appeared Dr. Macspeiden's testimony would be generic eyewitness expert testimony and no lengthy continuance was necessary for him to prepare.

The court explained trial had commenced and there would be no continuance of trial. It, however, did agree to a slight delay to allow Dr. Macspeiden to prepare. The court noted Dr. Macspeiden was an expert, his testimony would in large measure be generic and concern the general problems of eyewitness identifications. It would not take him a lengthy period to prepare. The court noted the plan was to start jury selection on May 24, 2004. The court believed the taking of testimony would have begun on May 26, 2004. The court estimated the prosecution case would end on June 1, 2004. The court proposed jury selection instead begin on May 26, 2004, and the prosecution's case begin on June 1. The court stated this would give the defense expert two weeks to prepare and based on the court's understanding of the defense case that amount of time would be sufficient.

Defense counsel did not object to the court's approach. Counsel stated if it appeared that a day or two additional time was necessary for Dr. Macspeiden to prepare, he would so inform the court. The court agreed it might be necessary to revisit the matter.

The prosecution's case began on June 1, 2004.

Without an additional request for a continuance, the defense began and Dr. Macspeiden testified on June 8, 2004.

Dr. Macspeiden testified at length concerning general problems related to human perception and memory and how these issues relate to eyewitness identification. The doctor stated he read police reports from the case and viewed the photographic line-ups used in the investigation, he read perhaps thousands of pages of transcripts related to the case and spoke with counsel and the defense investigator for several hours. Dr. Macspeiden related general concepts of perception and memory to the particular circumstances of this case.

2. Discussion

The trial court did not abuse its discretion in denying the defense motion to continue the trial. Defense counsel promptly advised the court his eyewitness expert would be unable to testify. With the help of the court, counsel was able to secure the assistance of another highly qualified expert to review the case and testify. The trial court adjusted the schedule for jury selection and the commencement of trial to allow the new expert time to prepare. Counsel did not object to the court's schedule. Dr. Macspeiden testified at trial. He indicated a thorough preparation, a command of his subject and an ability to relate general concepts concerning the fallibility of perception and memory to the stressful circumstances under which the witnesses made their perceptions in this case and how the matter was investigated.

The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

HUFFMAN, J.

McDONALD, J.

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^[1] All further statutory references are to the Penal Code unless otherwise specified.

^[2] In his reply brief appellant also suggests counsel demonstrated his ineffectiveness when during trial he evidenced some confusion between two different "911" calls made around the time of the shooting. Points raised for the first time in a reply brief are not considered by the court. (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.)