P. v. Lucas

Filed 5/2/07 P. v. Lucas 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

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In the early morning hours of August 6, 2003, someone shot Kenneth Tannahill and Leah May Warren in their home, killing Tannahill. Viewed in the light most favorable to the judgment, the evidence here showed that defendant Daniel Justin Lucas was the culprit.

A jury found defendant guilty of first degree murder and attempted murder and found various sentencing enhancement allegations to be true. The trial court sentenced him to an aggregate prison term of nine years consecutive to an indeterminate term of 75 years to life.

On appeal, defendant contends the trial court erred in denying a motion for a continuance and in excluding evidence that someone else was responsible for the crimes, and that he received ineffective assistance of counsel when his attorney elicited some of his testimony in a narrative fashion. Finding no trial court error and no ineffective assistance of counsel, we will affirm the judgment.

DISCUSSION

I

Motion For Continuance

Defendant was charged in August 2003. After a number of continuances, the preliminary hearing was held in November 2004. Thereafter, at least six trial dates were continued between February and August 2005. In September 2005, the trial court granted defendants Marsden^[1] motion, and he was appointed a new attorney in October 2005.

The case was set for trial in February 2006 but then continued to April 17, 2006. On that date, the matter was trailed for a week, and, at defense counsels request, the court issued but stayed a bench warrant for Marc Manuel, a witness who had been subpoenaed by the defense but failed to appear.

On April 26, the continued trial date, defendant filed a motion for a continuance. Defense counsel asserted his investigator had tried to contact Manuel -- a witness whose testimony counsel claimed would exculpate defendant -- twice in the previous week without success. He asked for a one-week continuance to allow the completion of the aforementioned issues.

The trial court denied the motion on the ground there was no indication . . . that any continuance [wa]s going to help in finding Manuel.

On appeal, defendant contends the trial court abused its discretion and committed reversible federal constitutional error in denying his motion for a continuance. We disagree.

The granting of a request made by a defendant for a continuance of his trial rests within the discretion of the trial court. [Citations.] Absent an abuse of discretion and a showing of prejudice, the denial of a continuance cannot compel a reversal of a judgment of conviction. . . . [] In order to invoke the discretion of the trial court to grant a continuance to obtain the presence of a witness, the moving party has the burden of showing that the following legal criteria have been satisfied: (1) That the movant has exercised due diligence in an attempt to secure the attendance of the witness at the trial by legal means; (2) that the expected testimony is material; (3) that it is not merely cumulative; (4) that it can be obtained within a reasonable time; and (5) that the facts to which the witness will testify cannot otherwise be proven. (People v. Wilson (1965) 235 Cal.App.2d 266, 272-273.)

Here, defendant asserts that Manuel was a material witness whose testimony was necessary to establish [a] third party culpability defense. What defendant fails to do, however, is point to any evidence that Manuels testimony could have been obtained within a reasonable time, e.g., in the week that he requested as a continuance. Defendant offered no evidence in the trial court that given an additional week, or any other amount of time, he was likely to locate Manuel. Absent such evidence, the trial court did not abuse its discretion in denying defendants motion. By the same token, no federal constitutional error has been shown either, as the proper denial of defendants motion for a continuance did not deprive him of his right to a fair trial.

II

Third Party Culpability Evidence

In August 2003, defendant was living with his kind of stepmother, Lisa Lindberg, a few blocks away from where Tannahill and Warren lived. Lindberg and Tannahill got into an argument on the afternoon of August 5 at Lindbergs house over a missing $10.

During defense counsels cross-examination of Lindberg, he asked her whether Tannahill seemed scared when she saw him the afternoon before he was killed. She said no, but added that she knew [the victim] was scared everyday. When defense counsel asked her what she meant, the prosecutor objected as vague and irrelevant, and the court called a recess.

Outside of the jurys presence, defense counsel elicited Lindbergs testimony that in the week or two before his death, Tannahill told her approximately five times that the Mexican Mafia was after him. The last time, the victim was crying and told her, Im not going to live much longer. Im going to die. Tannahill did not tell her why he thought the Mexican Mafia was after him.

Defense counsel argued Lindbergs testimony was relevant to establish third party culpability for the shootings. The trial court ruled the testimony inadmissible because the court did not see the relevancy and because the potential for this evidence to mislead the jury would override [whatever] relevance it might have. The court expressed willingness to reconsider the matter if defendant produced any corroborating evidence that the Mexican Mafia was responsible for Tannahills death.

On appeal, defendant contends [t]he trial courts ruling was incorrect because . . . Lindbergs testimony about why [Tannahill] was so afraid was relevant to establish[] [defendant]s third party culpability defense. We disagree.

[I]t is always proper to defend against criminal charges by showing that a third person, and not the defendant, committed the crime charged. (People v. Hall (1986) 41 Cal.3d 826, 832.) To be admissible, however, the third party evidence must be capable of raising a reasonable doubt of defendants guilt. (Id. at p. 833.) Evidence of another persons motive or opportunity to commit the crime, without more, will not raise a reasonable doubt about a defendants guilt; direct or circumstantial evidence must link the third person to the actual perpetration of the crime. (People v. Johnson (1988) 200 Cal.App.3d 1553, 1563.)

Here, the trial court did not err in excluding Lindbergs proposed testimony because that testimony did not raise a reasonable doubt as to whether the Mexican Mafia -- rather than defendant -- was responsible for Tannahills murder. Defendant points to no evidence regarding any links between Tannahill and the Mexican Mafia other than Lindbergs testimony. Even ignoring the hearsay problems with that testimony, however, at best it suggested Tannahill believed the Mexican Mafia was out to get him; it did not link any identifiable third person with the actual perpetration of his murder. For this reason, the evidence was insufficient, and the trial court properly excluded it. (See People v. Gutierrez (2002) 28 Cal.4th 1083, 1136-1137.)

III

Direct Examination Of Defendant

In People v. Johnson (1998) 62 Cal.App.4th 608, the appellate court discussed the problem [that] arises . . . where the defendant asserts his right to testify and his attorney knows or suspects the defendant will give perjured testimony. (Id. at pp. 618-619.) The court identified various solutions to the problem, including the narrative approach, under which the attorney calls the defendant to the witness stand but does not engage in the usual question and answer exchange. Instead, the attorney permits the defendant to testify in a free narrative manner. In closing arguments, the attorney does not rely on any of the defendants false testimony. (Id. at pp. 620-626.) The court ultimately determined that the narrative approach represents the best accommodation of the competing interests of the defendants right to testify and the attorneys obligation not to participate in the presentation of perjured testimony since it allows the defendant to tell the jury, in his own words, his version of what occurred, a right which has been described as fundamental, and allows the attorney to play a passive role. (Id. at p. 629.)

After one defense witness testified that defendant was with her and several other people at a park all night when Tannahill was murdered, defense counsel requested an in camera hearing. Counsel informed the court that defendant wanted to testify against counsels advice, and counsel was concerned that a portion of his anticipated testimony may be sufficiently inconsistent with my understanding of the facts. Counsel provided the court with a copy of People v. Johnson, supra, 62 Cal.App.4th 608, and asserted that Johnson lays out the protocol procedure for handling these situations. The following colloquy then occurred:

THE COURT: Well, [counsel], although you indicated that there [are] substantial inconsistencies. Are you indicating that those inconsistencies could rise to the level in the Johnson case and that would be the protocol that you would follow.

[DEFENSE COUNSEL]: Actually, in this particular case, your Honor, the conversations werent that substantive.

THE COURT: But I suspect unless you feel that the testimony is perjurious, you would be entitled and most appropriately required for you to engage in normal direct examination; obviously, if it reaches something beyond that, then you probably do need to follow the protocol in Johnson.

[DEFENSE COUNSEL]: Okay. Thank you. All right.

Just before defendant took the witness stand, the court reiterated its position on the matter outside the presence of the jury, telling defense counsel, I think you can approach this in two different ways: [] For those matters that obviously you are not -- you do not believe arise to a level of perjury, at least known perjury on your part, you can engage in normal question and answering you would on direct with any witness. [] In those areas where you do feel there is some issue, an ethical issue on your part, then I think it would be permissible for you to engage in sort of a narrative type approach. [] And that is simply ask the defendant what happened, things of that nature.

Defense counsel then made an offer of proof that he would tender an open-ended question to [defendant]: What events occurred on August 5th and the early morning of August 6th. And allow him to describe those events to the best of his recollection as an open-ended question. The court agreed. Accordingly, after asking defendant a number of background questions, counsel asked defendant to tell the jury to the best of your recollection what you remember occurring from the afternoon of August 5th 2003 until morning of August 6th 2003. Defendant then testified in a somewhat rambling fashion, but did manage to inform the jury that he was at the park all night and didnt pull that trigger.

On appeal, defendant contends he was deprived of his constitutional right to effective assistance of counsel by his trial attorneys use of the narrative approach. We disagree.

Generally, a conviction will not be reversed based on a claim of ineffective assistance of counsel unless the defendant establishes both of the following: (1) that counsels representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsels unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing of either one of these components, the ineffective assistance claim fails. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.)

Here, the record is insufficient to assess whether defense counsels decision to use the narrative approach fell below an objective standard of reasonableness. In any event, defendant has failed to show a reasonable probability that, but for the use of the narrative approach, a determination more favorable to him would have resulted. He complains that his testimony was rambling, incoherent, and disjointed, that [t]he narrative approach . . . clearly signaled the jury that defense counsel did not believe his own client, and that his rambling answer . . . was especially prejudicial because he volunteered that he was in a gang. We are not persuaded these factors satisfy defendants burden to show prejudice from his attorneys actions.

First, even assuming for the sake of argument that the jury could have found defendants narrative response rambling, incoherent, and disjointed, defendant fails to demonstrate a reasonable probability that the jury would have believed his alibi, or at least had a reasonable doubt about the truth of his alibi, if he had testified in response to normal direct examination. Although his explanation about what happened was not a model of clarity and cohesion, there was nothing incoherent about it, and defendants assertions that he and his companions were at the park all night and that he didnt pull that trigger could hardly have been more forthright and clear.

Second, we are given no reason to believe that the jury would have understood from the narrative form of the question that his own attorney did not believe him. Even if the jury might have understood that counsel was using an entirely different approach, defendant offers no basis for reasonably concluding the jury would have known why that approach was being used. Defendants citation to State v. Robinson (1976) 290 N.C. 56 [224 S.E.2d 174] is unpersuasive on this point because the procedure specifically at issue there involved the defendant himself taking over the direct examination of a witness while his attorney remained seated at the counsel table. (Id. at p. 67 [224 S.E.2d at p. 180].) That is not comparable to what occurred here.

Third, while it is true defendant told the jury that he was not your good samaritan and was a gang member, defendant makes no effort -- other than asserting in a conclusory fashion that [e]vidence of gang membership is widely recognized to be highly prejudicial -- to show how there is a reasonable probability that, but for his admission of gang membership, a determination more favorable to him would have resulted in this case.

For the foregoing reasons, we conclude defendant has failed to show he received ineffective assistance of counsel.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

SCOTLAND, P.J.

RAYE , J.

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^[1]People v. Marsden (1970) 2 Cal.3d 118.