P. v. White

Filed 7/16/07 P. v. White 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 Bernardino County, Kenneth R. Barr, Judge, and petition for writ of habeas corpus. Judgment affirmed, petition denied.

A jury found Maurice White guilty of crimes arising from his stabbing his former girlfriend in the neck. He was convicted of assault with a deadly weapon, corporal injury to cohabitant resulting in traumatic condition, and false imprisonment by means of threat or violence. (Pen. Code,  245, subd. (a)(1), 273.5, subd. (a), 236.) On the assault and injury to cohabitant counts, the jury found White personally inflicted great bodily injury and personally used a deadly weapon. On the injury to cohabitant count, White admitted he had suffered a prior misdemeanor conviction for corporal injury to a cohabitant resulting in a traumatic injury. The court imposed a seven-year prison term.

On appeal, White contends he received ineffective assistance of counsel because his counsel did not object to statements made by the prosecutor during closing arguments. White also brought a habeas petition asserting the same contention. We reject this contention, affirm the judgment, and deny the petition.

FACTUAL SUMMARY

White and Jane Doe had a three-year relationship and had a child who was a dependent of the juvenile court. One evening, Doe was visiting White in a trailer in the backyard of a residence. After the two smoked methamphetamine, Doe decided to leave and told White she would be back when he was sober. White objected and stabbed Doe in the neck with a box cutter. The pair then began to fight with blows exchanged to the face and body. Doe felt something hot and wet on her neck and realized she was bleeding heavily from a neck wound. When Doe asked White why he had stabbed her, White replied that he wanted her to feel all the pain he has had to feel.

When White allowed Doe to leave, she drove to her mother's home about 15 minutes away. Doe's mother immediately took her to the hospital, where she received 19 stitches in her neck.

While in custody, White called Doe several times and admitted hurting her. Doe offered to obtain bail for White, but said she did this because she wanted White to leave her alone.

At trial, the prosecution relied primarily on Doe's testimony because there were no other witnesses to the attack. The prosecution also called other witnesses to show that White was in the trailer that evening, and Doe had access to the trailer.

White did not testify or call any of his own witnesses. His defense theory was that although Doe did receive serious injuries, he was not the perpetrator of the crime. In support, his defense counsel focused on challenging Doe's credibility, arguing it was unlikely she could have driven from White's trailer to her mother's house with the serious neck injury and asserting that Doe had a motive to lie because White was involved in a relationship with another woman. White's counsel also emphasized the inconsistencies in Doe's testimony and lack of independent evidence corroborating Doe's claim that White was the person who stabbed her, and elicited testimony from the prosecution witnesses that there was no blood found in the trailer several hours after the incident.

The jury found White guilty of assault with a deadly weapon, corporal injury to a cohabitant resulting in a traumatic condition, and false imprisonment by means of threat or violence. (Pen. Code,  245, subd. (a)(1), 273.5, subd. (a), 236.) The jury found White not guilty of an additional criminal threats charge (Pen. Code,  422).

DISCUSSION

I. Appeal

White's sole contention on appeal is that he received ineffective assistance of counsel because his counsel did not object to the prosecutor's comments during closing arguments.

An appellant claiming ineffective assistance of counsel has the initial burden to show counsel's performance fell "below an objective standard of reasonableness under prevailing professional norms." (People v. Montoya (2007) 149 Cal.App.4th 1139, 1146-1147.) This burden is " 'rarely' " met when the challenged conduct is a failure to object to a prosecutor's argument. (People v. Huggins (2006) 38 Cal.4th 175, 252.) The decision to object during argument is a tactical one that is accorded substantial deference. To prevail on direct appeal, " ' "the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission." [Citation.]' [Citation.]" (People v. Majors (1998) 18 Cal.4th 385, 403.) The claim must be rejected if there is any satisfactory explanation for counsel's actions. (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.)

In this case, the prosecutor began his argument by emphasizing the requirement that he prove White's guilt "beyond a reasonable doubt" and that this required an "abiding conviction of the truth of the charge." The prosecutor then made various statements during his opening and rebuttal arguments suggesting that a guilty verdict would be "the only reasonable interpretation" of the facts and that a finding of innocence would be "unreasonable." He also stated that the case is "almost like a puzzle," and "as soon as you know what that picture is, that is either proof beyond a reasonable doubt or it is not guilty." White argues that these statements "trivialized," "debased," and "improperly shifted" the prosecutor's burden to prove the charges beyond a reasonable doubt, and therefore his counsel's failure to object to the statements constituted ineffective assistance.

This argument is unavailing for several reasons.

First, White has not established a failure to object fell below an objective standard of reasonableness. Viewing his statements in context, the prosecutor was arguing that the evidence in the case pointed to White's guilt, and the facts supporting the defense version were unconvincing. Although the prosecutor's use of the terms "innocence" and "guilt" were imprecise in the context of the argument, it is unlikely that a reasonable juror would have interpreted the comments as suggesting a redefinition of the proof burden. Instead, it appears that counsel was attempting to explain and apply the circumstantial evidence instruction given to the jury (CALJIC No. 2.01), which stated that "if the circumstantial evidence . . . permits two reasonable interpretations, one of which points to the defendant's guilt and the other to his innocence, you must adopt that interpretation that points to the defendant's innocence, and reject that interpretation which points to his guilt. [] If, on the other hand, one interpretation of this evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable." The prosecutor's statements that, under the facts presented, "innocence" was "unreasonable" and guilt was "reasonable" relate directly to this instruction, and thus were within the bounds of fair argument.

Moreover, even assuming the argument was improper, the record does not support there was no reasonable tactical basis for the lack of an objection. Defense counsel may have reasonably believed the most effective way to remedy any jury confusion or misconception arising from the prosecutor's argument was to discuss the issue in his own closing statement. This strategy was within the bounds of effective representation particularly given the nature of the prosecutor's closing arguments that were often disjointed and unclear. Rather than interrupting the prosecutor's argument and giving the prosecutor the opportunity to correct and clarify his statements, defense counsel may have reasonably believed the more persuasive approach would be to counter the argument in his own closing statement. And that is precisely what defense counsel did in this case. Defense counsel discussed the reasonable doubt standard and reminded the jurors that the reasonable doubt instruction would be included "in a package that you are going to get in the jury room [and] [y]ou are allowed to refer to them if you want to." Defense counsel's closing statement constituted strong and effective advocacy, and his representation did not, as White contends, reflect " silent acquiescence" to the prosecutor's arguments.

Additionally, even assuming defense counsel's performance was constitutionally deficient, White failed to show prejudice. To establish reversible error, the defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 694; People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, 466 U.S. at p. 694.)

The court instructed the jury at least three times that the prosecution had the burden to prove its case beyond a reasonable doubt. The court also specifically instructed the jury that it "must accept and follow the law as I state it to you . . . . If anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law you must follow my instructions." We are required to presume the jury followed this instruction, and did not accept the prosecutor's statements to the extent they conflicted with the court's instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.)

In light of the instructions, the prosecutor's statement that he was required to prove the case beyond a reasonable doubt, and defense counsel's arguments correctly stating the proof burden, we are confident the outcome would have been the same even if counsel had objected during the prosecutor's closing arguments.

We additionally reject White's argument that defense counsel provided ineffective assistance by failing to object when the prosecutor said: "I looked at all of this evidence and it points to his guilt; innocence is unreasonable." White is correct that a prosecutor may not express a personal opinion or belief in a defendant's guilt. However, viewed in context, the prosecutor's statement did not necessarily mean the prosecutor personally vouched for the evidence or White's guilt. The prosecutor merely stated that he looked at all the evidence, and that the evidence points to guilt. The use of the pronoun "I" does not necessarily make a statement impermissible personal opinion. (People v. Adcox (1988) 47 Cal.3d 207, 236-237.) There was nothing in the prosecutor's brief statement suggesting he was aware of facts the jury did not know or that the victim's credibility was supported by the "prestige" of the government. To the contrary, the prosecutor acknowledged the victim was irresponsible and an illegal drug user with a criminal history, but urged the jury to focus on the defendant's acts rather than the victim's character.

II. Habeas Petition

In his habeas petition, White reasserts his ineffective assistance of counsel argument. In support, White submitted his appellate counsel's declaration stating that she mailed certain excerpts of the prosecutor's closing arguments to defense counsel at trial and asked counsel to supply a declaration as to his reasons for not objecting to these statements.

Defense counsel's responsive declaration stated in relevant part: "I have no recollection as to what reason(s) I may or may not have had for not objecting to any portions of the prosecutor's closing argument.  [] . . . []  I have not reviewed a transcript of the closing arguments . . . . As such, I cannot be certain as to the overall context of the prosecutor's comments. [] In June of 2005 it was my normal practice to emphasize CALJIC 2.01 [the circumstantial evidence instruction] in closing argument. As I recall, the main thrust of Mr. White's defense was that the alleged victim should not be believed because the circumstantial evidence did not support her version of the events. [] It appears that [the] prosecutor in this case was trying to argue the circumstantial evidence as it relates to CALJIC 2.01. The majority of circumstantial evidence in this case pointed towards Mr. White being not guilty. I may have chosen not to object to the prosecutor's arguments, as they tended to concede the case was about circumstantial evidence rather than direct testimony."

This new evidence does not support White's claim that his trial counsel acted below the standard of professional care or that White suffered prejudice from his counsel's failure to object. Although White's trial counsel was not certain of the specific reason for his actions, he believed he may have decided not to object because it appeared the prosecutor was focusing on the circumstantial evidence instruction and this focus might be helpful to the defense because it implied the prosecution recognized the weakness in the direct evidence (the victim's testimony). This tactical decision falls within the bounds of a reasonable defense strategy. Where a legitimate tactical reason exists for not objecting, a claim of ineffective assistance will fail. (See People v. Weaver (2001) 26 Cal.4th 876, 925-926.) Additionally, the habeas record does not reflect that White was prejudiced by his counsel's failure to object.

DISPOSITION

Judgment affirmed. Habeas petition denied.

HALLER, Acting P. J.

WE CONCUR:

McINTYRE, J.

O'ROURKE, J.

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