P. v. Mesdaghi
Filed 6/18/13 P. v. Mesdaghi CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
MOHAMAD MESDAGHI,
Defendant and Appellant.
B239038
(Los Angeles
County
Super. Ct.
No. YA073765)
APPEAL from
a judgment of the Superior Court
of
County, Eric C. Taylor, Judge.
Affirmed as modified.
Linn Davis,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Lawrence M. Daniels and
Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
>
Mohamed Mesdaghi
appeals from the judgment entered after a jury convicted him of leaving the
scene of an accident resulting in injury
and insurance fraud. Mesdaghi
contends he received ineffective assistance of counsel at trial and was
improperly excluded from critical proceedings in violation of his
discretion in denying his motion for a mistrial and improperly sentenced
him. We affirm.
factual and procedural background
1.
The Accident
At approximately 8:40
p.m. on June 13, 2008,
Jocelyn McCormick was driving in the southbound fast lane of the 405 freeway in
Los Angeles when her car was struck
in the right rear by another vehicle.
McCormick lost control of her car, which hit the center divider and then
rebounded across the freeway, striking another car and finally coming to rest
facing northbound along the shoulder.
The driver of the third car, Tracy Greathouse, whose car had been struck
by McCormick’s vehicle, pulled over to the shoulder near McCormick. As he parked, he saw a black sports utility
vehicle (SUV) resting against the median, also facing northbound. Greathouse saw the driver of the SUV climb
out of his vehicle, run across the freeway and disappear up the
embankment. Greathouse described the
driver as a young man of medium height and build with shoulder-length dark
hair.
Todd Williams, who was driving in the carpool
lane a short distance behind the accident, saw the black SUV collide with
McCormick’s car. Williams drove slowly
past the black SUV and spoke with the driver to find out whether he was
injured. The driver indicated he was
fine.
Alerted by several callers, the California
Highway Patrol (CHP) dispatched Officer Ronald McMillan to investigate the
accident. McMillan was unable to locate
the driver of the SUV and observed no blood in the car or other indicia of
injury. After McMillan completed his investigation,
the SUV was towed to a nearby lot in Inglewood.
2.
Mesdaghi’s Report of His Vehicle as Stolen
At 9:43 p.m.
the Santa Monica Police Department received a report of a residential burglary
and vehicle theft from Mesdaghi.
Mesdaghi explained to the responding officers he had been sleeping in
his apartment when his mother arrived at 7:30 p.m. and alerted him to the
fact his black Land Rover SUV was missing.
Mesdaghi told the officers his front door had not been locked and his
keys, cellular telephone and wallet, which he had placed just inside the door,
were also missing. According to
Mesdaghi, he believed his property had been stolen while he slept. The officers were not able to find any
evidence of forced entry, and Mesdaghi was unable to explain why he had waited
two hours to report the theft.
Later that evening Officer Scott McGee attempted
to report the Land Rover as stolen and learned it had been involved in a
hit-and-run collision. McGee returned to
Mesdaghi’s home to check him for injuries, but no one responded to his knock at
the door or telephone calls.
The next day Mesdaghi submitted a stolen vehicle
claim to his insurer.
3.
The CHP Investigation
The day after the accident CHP Officer McMillan
contacted the tow yard and learned Mesdaghi had visited the yard early that
morning and removed items from the SUV.
He had also provided identification to the tow company and authorized
release of the vehicle to his insurer.
Because the tow yard had a security camera, McMillan was able to view a
surveillance videotape showing Mesdaghi.
McMillan notified Mesdaghi by mail the SUV had been involved in an
accident. In a recorded interview
Mesdaghi told McMillan the SUV had been stolen from his home and he had not
been driving the vehicle at the time of the accident.
Officer McMillan was able to locate Williams and
arrange for him to view a photographic lineup (a “six-packâ€) three weeks after
the accident. Williams identified
Mesdaghi as the driver of the SUV.
McMillan was unable to locate Bao Tran, who had reported an incident on
the 405 freeway that same night.
According to the dispatcher’s log, Tran called at 9:15 p.m. to report
she had hit a man running across the freeway.
The impact had not been hard; the man was already bleeding and had
continued to run toward the embankment.
4.
The Insurance Investigation
On June 16, 2008 Mesdaghi spoke with a claims
examiner for his insurer. Based on his
statements, the examiner referred the claim to a security investigator. The investigator interviewed Mesdaghi twice
and spoke with Officer McMillan about Mesdaghi’s statements to her. Mesdaghi’s claim was denied on the
investigator’s recommendation in October 2008.
5.
The Charges
Mesdaghi was charged with leaving the scene of
an accident resulting in injury (Veh. Code, § 20001, subd. (a)(1) (count
1)) and insurance fraud (Pen. Code, § 550,
subd. (a)(1) (count 2)).
name="_ftnref1" title="">[1] As to both counts it was alleged Mesdaghi
has suffered a prior serious felony conviction within the meaning of the “Three
Strikes†law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and
had served a prior prison term for a felony within the meaning of section
667.5, subdivision (b).
6.
Mesdaghi’s Defense
At trial Mesdaghi presented a defense of
misidentification. In addition to his
contention the SUV had been stolen, he blamed the CHP for a faulty
investigation. Other than Williams, no
one else identified him at the scene; yet Officer McMillan failed to follow up
with potential witnesses, including members of Mesdaghi’s family who would
support his assertion the SUV had been stolen.
Moreover, McMillan failed to preserve critical evidence in the form of
the actual CHP emergency hotline recordings or the videotape from the tow yard.
tape of Tran’s call or even interview her, Mesdaghi’s counsel obtained a
pretrial ruling allowing Mesdaghi to introduce a stipulation relating the
substance of her call and informing the jury the tape had been destroyed
shortly before the case had been filed.
According to Mesdaghi, Tran’s description of the bleeding man was
inconsistent with his condition at the time he was interviewed by Santa Monica
police officers about the theft of his SUV.
Shortly before trial, Officer McMillan found
Tran and interviewed her. She told him
she had not seen blood on the man, but her father had told her, once they
arrived at their destination, there was blood on their van. Based on the late discovery of this evidence,
the court ruled Mesdaghi was still entitled to introduce the original
stipulation but could not ask Tran what her father saw. The prosecutor stated he did not intend to
call Tran as a witness but would cross-examine her on any inconsistencies in
her statements.
The week before the trial began, defense counsel
was contacted by Mesdaghi’s estranged father, Amir, who informed her he had
been driving the SUV on the night of the accident. To avoid becoming a witness at trial, defense
counsel urged the People to interview Amir, who stated he wanted to testify at
trial. At the beginning of trial Amir
was provided counsel, who advised him against testifying. Amir affirmed his intention to testify before
the trial court. Based on his promise to
testify, Mesdaghi’s counsel told the jury in her opening statement Amir would
testify he, and not his son, was the one who had been driving the SUV at the
time of the accident. But when the time
came for Amir to testify, his counsel had convinced him to assert his Fifth
Amendment right not to testify. The
court upheld Amir’s assertion of his Fifth Amendment privilege, thus removing
him from the case.
Mesdaghi proceeded with his defense of
misidentification. Although neither he
nor Amir testified, his mother and wife both testified Mesdaghi had been asleep
at home when the SUV was stolen. In
addition, his counsel called Tran to testify, notwithstanding the proposed
stipulation related to her original call.
Tran stated her recollection was shaky but disputed the way her call had
been presented in the CHP log. She had
been driving with her family at a speed of 50 miles per hour on the southbound
405 freeway near the Century Boulevard exit when she saw a man attempt to cross
the freeway from the onramp side of the freeway. She was able to slow significantly but was
unable to avoid him; and her van knocked him down. He immediately got up and ran back to the
shoulder. She did not recall seeing
emergency vehicles on the freeway. She
never saw blood on the man but admitted she had told the dispatcher “he bled a
little.†The man was between 20 and 45
years old and had short hair. She
reported the incident to the CHP, but McMillan told her many people had
reported the accident and she should not “worry about it.â€
7.
Verdict and Sentencing
The jury convicted Mesdaghi on both counts. In a bifurcated proceeding Mesdaghi admitted
the truth of the prior conviction
allegation for purposes of both the strike and the enhancement under
section 667.5. Sentencing was continued
to March 29, 2011.
On February 8, 2011 Mesdaghi’s counsel appeared
and asked to be relieved, offering to explain her reasons in camera, because
she believed she could no longer represent Mesdaghi without compromising the
Rules of Professional Conduct. The
motion was assigned to a different judge who approved the request. Mesdaghi’s new counsel filed a motion for a
new trial based in part on his former counsel’s representation to him that
conviction on the current charges would constitute a second strike under the
Three Strikes law. According to
Mesdaghi, had he understood the charges were not strikes, he would have
accepted a two-year plea offer. The
motion was denied.
At a January 5, 2012 sentencing hearing the
court imposed an aggregate state prison term of seven years four months,
composed of the middle term of three years (doubled under the Three Strikes law)
plus a one-year prior prison term enhancement (which the court stayed) on count
2; and a consecutive term of one-third the middle term of two years (doubled)
on count 1. The hearing was continued
for two weeks for the purpose of setting victim restitution.
On January 20, 2012 the parties appeared for the
restitution hearing. Although no victim sought restitution,
Mesdaghi’s mother was allowed to speak and begged the court to reduce the
sentence. The court declined to modify
the sentence and commented, “This isn’t a life sentence, by any means . . .
.†Mesdaghi, who had appeared contrite
at the previous sentencing hearing, then asked, “Am I getting punished for going
to trial because it if—?†The court interrupted
him, stating, “No, you are not being punished for going to trial and, you know
what, it’s not your turn.†Medaghi
responded, “When was my turn? I’ve been
here for two years.†In answer the court
said, “Do you want me to reconsider your sentence? Is that what you are asking for because I
don’t think you want that.†Mesdaghi
stated, “You asked if it’s my turn.†The
court reaffirmed the terms of the sentence, instructed Mesdaghi of his right to
appeal and remanded him to the custody of the sheriff.
Three days later the court reconvened the
hearing. Based on Mesdaghi’s attitude at
the previous hearing, the court announced it was reopening sentencing and
imposing the one-year enhancement it had previously stayed for a total
aggregate term of eight years four months.
The court explained, “His attitude and outbursts . . . are in stark
contrast to the statement that he read.
It’s pretty clear to the court that he doesn’t get it. He is not taking responsibility for what’s
going on, what happened in this case.â€
contentions
Mesdaghi contends portions of his trial
counsel’s opening statement and her decision to introduce certain evidence were
so deficient as to have deprived him of the effective assistance of counsel and
his exclusion from certain proceedings violated his constitutional rights. Mesdaghi also challenges the court’s denial
of his motion for mistrial after his father asserted his privilege against
self-incrimination and the court’s imposition of the one-year prior prison term
enhancement.
discussion
1.
Mesdaghi’s Claims of Ineffective Assistance of
Counsel Are Premature
“‘To establish ineffective assistance of
counsel under either the federal or state guarantee, a defendant must show that
counsel’s representation fell below an objective standard of reasonableness
under prevailing professional norms, and that counsel’s deficient performance
was prejudicial, i.e., that a reasonable probability exists that, but for
counsel’s failings, the result would have been more favorable to the defendant.’†(In re Roberts (2003) 29 Cal.4th 726,
744-745; see Strickland v. Washington (1984) 466 U.S. 668, 694 [104
S.Ct. 2052, 80 L.Ed.2d 674].) “‘The
burden of sustaining a charge of inadequate or ineffective representation is
upon the defendant. The proof . . . must
be a demonstrable reality and not a speculative matter.’†(People
v. Karis (1988) 46 Cal.3d 612, 656.)
“‘“Reviewing courts defer to counsel’s
reasonable tactical decisions in examining a claim of ineffective assistance of
counsel [citation], and there is a ‘strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.Չۉ۪ [Citations.]
‘[W]e accord great deference to counsel’s tactical decisions’ [citation]
and we have explained that “courts should not second-guess reasonable, if
difficult, tactical decisions in the harsh light of hindsight.â€â€™ [Citation].
‘Tactical errors are generally not deemed reversible, and counsel’s
decisionmaking must be evaluated in the context of the available facts.’ [Citation.]
[¶] In the usual case, where
counsel’s trial tactics or strategic reasons for challenged decisions do not
appear on the record, we will not find ineffective assistance of counsel on
appeal unless there could be no conceivable reason for counsel’s acts or
omissions.â€â€™â€ (People v. Jones
(2003) 29 Cal.4th 1229, 1254.)
Decisions whether to call particular witnesses are peculiarly matters of
trial tactics unless the decision results from the unreasonable failure to
investigate. (See People v. Bolin
(1998) 18 Cal.4th 297, 334.)
On direct appeal a conviction will be reversed
for ineffective assistance of
counsel only when the record demonstrates there could have been no rational
tactical purpose for counsel’s challenged act or omission. (People
v. Lucas (1995) 12 Cal.4th 415, 442; see People v. Carter
(2003) 30 Cal.4th 1166, 1211 [“If the record on appeal sheds no light on why
counsel acted or failed to act in the manner challenged, an appellate claim of
be rejected unless counsel was asked for an explanation and failed to provide
one, or there simply could be no satisfactory explanation. [Citation.]
Otherwise, the claim is more appropriately raised in a petition for writ
of habeas corpus.â€].)
Mesdaghi contends his counsel was ineffective in
three respects: (1) her decision to call
Tran as a witness when she had already obtained a stipulation that Tran had
reported the man she saw running across the freeway had been bleeding; (2) her
failure to preserve for trial Amir’s confession he had been driving Mesdaghi’s
SUV on the night of the accident; and (3) her acquiescence to, and
participation in, ex parte hearings that excluded Mesdaghi from discussions
about his father’s invocation of his privilege against self-incrimination.
As to defense counsel’s decision to call Tran as
a witness, her actual reasoning is not set forth in the record. Nonethless, we have no difficulty positing a
strategic rationale for the decision: A
stipulation read into the record has far less impact than live testimony. Counsel had no other witness to support her
argument the driver who caused the accident had been injured in a manner
inconsistent with Mesdaghi’s apparent lack of injury when he was interviewed
about the theft of his vehicle by Santa Monica police. While it may be easy to second-guess the
decision to call Tran in hindsight, it was plainly tactical in nature and, at
least from the record now before us, reasonable. (See People v. Jones, supra 29 Cal.4th at p.
1254; see also Strickland v. Washington, supra, 466 U.S. at p. 689
[courts must presume challenged action “‘might be considered sound trial
strategy’†absent evidence to contrary]; People v. Dennis (1998) 17 Cal.4th 468, 541
[same].)
To the extent Mesdaghi complains his counsel
should have located Tran and interviewed her before the trial, that claim must
be presented in a habeas corpus petition.
The record does not disclose whether the People provided Mesdaghi’s
counsel with adequate information to locate Tran or whether any such efforts
were made. (See People v. Mendoza
Tello (1997) 15 Cal.4th 264, 266-267 [a claim of ineffective
assistance of counsel relating to “‘why counsel acted or
failed to act in the manner challenged’†is more appropriately decided in a habeas
corpus proceeding].)
Mesdaghi also challenges his counsel’s failure
to preserve his father’s confession in view of the strong likelihood he would
invoke his Fifth Amendment right not
to testify. Amir had come forward on the
eve of trial and informed defense counsel he had been the driver of Mesdaghi’s
SUV on the night of the accident. He
insisted he wanted to testify and reaffirmed his intent even after having been
advised by independent counsel not to testify.
The record fully discloses the lengthy and vigorous efforts of defense
counsel to preserve the right to call Amir as a witness while both ensuring he
received independent advice and avoiding the need to herself become a witness
at trial, thus jeopardizing Mesdaghi’s overall defense. Under the circumstances evident on the
record, the decision to disclose Amir’s proposed testimony in opening statement
was a substantial risk; but it did not violate Mesdaghi’s constitutional right
to effective counsel. (See In re
Cudjo (1999) 20 Cal.4th 673, 692 [“‘[s]trategic
choices made [by counsel] after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable’â€].)
Nonetheless, Mesdaghi contends on appeal his
counsel could have recorded Amir’s confession or otherwise preserved his
statements for trial as a declaration against interest. (See People
v. Cudjo (1993) 6 Cal.4th 585, 606-607 [witness’s declaration against
interest admissible under Evid. Code, § 1230 when witness made unavailable
through invocation of privilege against self-incrimination].) Again, the facts necessary to conclude
Mesdaghi’s counsel failed to fulfill her professional obligation are absent
from this record and are more appropriately explored in connection with a
petition for writ of habeas corpus. Our
record necessarily does not disclose whether there has been any investigation
of the actions Mesdaghi’s counsel took pending Amir’s decision to invoke his
Fifth Amendment right or whether Mesdaghi or his family instructed her not to
preserve or use Amir’s statements.
Consequently, this too is an issue more appropriate for resolution in a
habeas corpus proceeding.
name="_ftnref3" title="">[3]
Finally, Mesdaghi asserts his Sixth Amendment
right to effective counsel and his corollary due process right to attend
hearings were violated by his exclusion from two ex parte hearings—one in which
Amir’s counsel discussed his belated assertion of the Fifth Amendment with the
trial court and one in which defense counsel made a motion for mistrial
following Amir’s change of mind and presented it to the court outside of
Mesdaghi’s presence.
To be sure, Mesdaghi, like all criminal
defendants, has the right to be personally present at virtually all adversarial
proceedings concerning his prosecution.
(See, e.g., People v. Ayala
(2000) 24 Cal.4th 243, 263 [with limited exceptions, “‘[t]he right of a
criminal defendant to an adversary proceeding is fundamental to our system of
justice. [Citations.] This includes the right to be personally
present and to be represented by counsel at critical stages during the course
of the prosecution. [Citation.] This is not mere idle formalism. Our system is grounded on the notion that
truth will most likely be served if the decisionmaker—judge or jury—has the benefit
of forceful argument by both sides. . . .’â€];
716-717 [defendant’s presence required if proceeding “bears a reasonable and
substantial relation to his full opportunity to defend against the
chargesâ€].) However, a court retains
discretion to conduct an in camera ex parte hearing to protect an overriding
interest in confidentiality such as the lawyer-client privilege. (People
v. Gurule (2002) 28 Cal.4th 557, 593-594.)
In such cases, “a criminal defendant’s right to due process does not
entitle him to invade the attorney-client privilege of another.†(Id. at
p. 594.) The fact Amir was Mesdaghi’s
father does not alter the applicability of this exception to the ex parte
hearing conducted by the court with Amir’s counsel on the question of his
invocation of the Fifth Amendment.
The justification for Mesdaghi’s exclusion from
the second ex parte hearing is less clear.
Although the transcript of that hearing has been unsealed and does not
reveal any statements by Mesdaghi’s counsel that varied from statements she had
previously made in his presence, the record does not disclose the reason he was
excluded from the hearing. As discussed
in reference to Mesdaghi’s current contention his counsel should have preserved
and introduced his father’s statement, there is no indication in the record
Mesdaghi and his counsel disagreed on this strategy at the time. Consequently, this issue too is one more
appropriate for a habeas corpus proceeding.
Again, Mesdaghi will be required to establish not only error but also
that his absence from the hearing had any prejudicial impact on his case.
2.
The Court Did Not Abuse Its Discretion in
Denying the Motion for Mistrial
A trial court should grant a mistrial “only when
a party’s chances of receiving a fair trial have been irreparably
damaged.†(People v. Bolden (2002)
29 Cal.4th 515, 555; accord, People v. Gonzales and Soliz (2011) 52
Cal.4th 254, 291 [“we have stated that a trial court should grant a mistrial
only if the defendant will suffer prejudice that is incurable by admonition or
instructionâ€].) We review
the trial court’s ruling denying a mistrial for abuse of
discretion. (Bolden, at p. 555; People
v. Ayala (2000) 23 Cal.4th 225, 282.)
Mesdaghi contends the trial court abused its
discretion when it declined to grant his motion for mistrial following his
father’s decision to invoke his right against self-incrimination. In denying the motion the court advised the
parties it would instruct the jury to minimize any prejudice to Mesdaghi. It subsequently instructed the jury with
CALCRIM No. 200 (informing the jury of its duty to apply the law as
instructed by the court), CALCRIM No. 222 (informing the jury to “use only
the evidence that was presented in this courtroom†and that the statements of
counsel, including their remarks during opening statements and closing
arguments, are not evidence) and CALCRIM No. 300 (informing the jury that
“[n]either side is required to call all witnesses who may have information
about the caseâ€).
We presume the jury followed those admonitions
and find no error. (See People v.
Gonzales and Soliz, supra, 52
Cal.4th at p. 292 [“Here the trial court struck Berber’s testimony and properly
admonished the jury. Although Soliz
asserts the admonitions were inadequate, we see no basis for the assertion and
presume, as always, that the jury followed the court’s instructions. [Citation.]
We therefore conclude the trial court did not err in denying Soliz’s
motion for mistrial.â€]; see generally People v. Waidla (2000)
22 Cal.4th 690, 725 [jury presumed to follow court’s instructions and
admonitions].)
3.
The Prior Prison Term Enhancement Was Properly
Imposed
Section 667.5, subdivision (b), “provides for an
enhancement of the prison term for a new offense of one year for each ‘prior
separate prison term served for any felony,’ with an exception not applicable
here. . . . Once the prior prison term
is found true within the meaning of section 667.5[, subdivision] (b), the trial
court may not stay the one-year enhancement, which is mandatory unless
stricken.†(People v. Langston (2004) 33 Cal.4th 1237,
1241.)
subdivision (b), or to strike it pursuant to section 1385, subdivision (a), is
a jurisdictional error and results in a legally unauthorized sentence subject
to correction on appeal. (People v.
Garcia (2008) 167 Cal.App.4th 1550, 1562; People v. Bradley (1998) 64 Cal.App.4th 386, 390.)
Mesdaghi contends the trial court improperly
reopened sentencing to impose the one-year prior prison term enhancement
authorized by section 667.5, subdivision (b), which the court had initially
ordered stayed.
title="">[5]
Ordinarily, a trial court loses jurisdiction
over a defendant when it relinquishes custody as to that defendant (
344), including the power to increase a valid sentence after its formal entry
in the court minutes (id. at
p. 350 & fn. 16 [“double jeopardy concerns would be implicated were
the trial court to attempt to increase the sentence after its formal entry in
the minutesâ€]). When a particular term
is unauthorized, however, the sentence is subject to judicial correction
whenever the error comes to the attention of the trial court or a reviewing
court. (People v. Serrato (1973) 9 Cal.3d 753, 763, disapproved on another
ground in People v. Fosselman (1983)
33 Cal.3d 572, 583, fn. 1; accord, People
v. Solorzano (2007) 153 Cal.App.4th 1026, 1040.)
While the trial court did not appear to be aware
of its error in staying the enhancement under section 667.5, subdivision (b),
its subsequent imposition of the one-year enhancement was within its power to
correct the unauthorized sentence. Under
these circumstances, we see no basis to remand for further reconsideration by
the court whether the enhancement should have been stricken.
disposition
The judgment is modified to impose an additional
$40 fee under section 1465.8, subdivision (a)(1). As modified, the judgment is affirmed. The superior court is to prepare a corrected
abstract of judgment and forward it to the Department
of Corrections and Rehabilitation.
PERLUSS,
P. J.
We concur:
WOODS, J.
ZELON, J.
name="_ftn1" title="">[1]
Statutory references are to the
Penal Code unless otherwise indicated.
name="_ftn2" title="">[2]
The parties stipulated the 911
audiotapes were deleted as of December 13, 2008 pursuant to CHP policy and
that charges were filed against Mesdaghi on December 15, 2008.
The
parties also stipulated that, as of June 13, 2008, Mesdaghi’s driving
privileges were suspended; he was on summary probation for a misdemeanor; and
he was on parole.
