P. v. Sanchez

Filed 8/29/06 P. v. Sanchez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Robert Valencia Sanchez appeals a judgment after his conviction of attempted murder (Pen. Code, §§ 187, subd. (a), 664)[1] and shooting at an occupied motor vehicle (§ 246) with findings that he personally used a firearm to commit these crimes (§§ 12022.5, subd. (a)(1), 12022.53, subds. (b)-(c)) and committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). We conclude that 1) the prosecutor did not engage in misconduct by her cross-examination of a witness or by her arguments to the jury, 2) Sanchez has not shown that he received ineffective assistance of counsel, and 3) the court did not err by denying Sanchez a new trial. We affirm.

FACTS

Rafael Magallon drove his friends Anthony Mora, Marcos Galaz and Maziel Mujica to Ventura so that Mujica could visit Belin Vargas, his former girlfriend. Mujica got out of the car and walked toward Vargas, who was with Lorena Arbaiza, Sanchez's former girlfriend.

Sanchez, a gang member, walked to the car where Magallon, Mora and Galaz were sitting, waived a gun at them, and said, "[W]hat gang you in[?]" Magallon drove away. Sanchez fired two shots at them. The car approached a "dead end," Magallon made a U-turn and Sanchez fired another shot.

At the police station, Mora, Mujica, Galaz and Magallon identified Sanchez as the shooter from a photographic lineup. At trial, Mora and Magallon testified Sanchez was the shooter.

Arbaiza testified that she saw Sanchez fire two or three shots at the car. After that incident, a gang member called Arbaiza's home and threatened her mother. When Sanchez's former lawyer interviewed Arbaiza, she told him she "didn't see anything."

In the defense case, Jeff Robinson, a district attorney investigator, said he interviewed Arbaiza. She initially told him she did not see the shooter, but later "started telling the truth." She did not want to testify and asked "for protection." The prosecutor asked Robinson, "[O]ne of the things [Arbaiza] said to you was that she talked to [Sanchez's] attorney and he told her to say . . . the version of events that she talked about on that date; is that correct?" Robinson replied, "Right. She made a . . . statement to me that she had spoken to the defendant's attorney and that he had told her to say I don't know." On redirect, Sanchez's counsel asked Robinson whether Arbaiza gave conflicting accounts about whether she saw the shooting. Robinson said she did.

Arguments to the Jury

Sanchez's counsel argued that Arbaiza was not credible because she made conflicting statements about whether she saw the shooting.

In rebuttal, the prosecutor referred to Arbaiza's interview with Robinson. She said: "She was getting nervous. She doesn't know what's going to happen. She talks to [Robinson] and now starts back peddling. I didn't really see it. . . . I don't really know. . . . Robinson says I don't understand. You know, why are you telling me this, and she says I talked to his attorney. He told me to say I don't know.

What's going on here, ladies and gentlemen. The subtle pressure from the defendant on this witness month after month . . . ultimately results in her talking to law enforcement and saying she wasn't sure.

. . .

She kept slipping up and mentioning the defendant's name even though she was trying to tell [Robinson] it wasn't him. Why did she do that? The defense attorney told her to call and say you don't know. Try and cloud the issues in this case." (Italics added.)

After the jury began deliberations, Sanchez's counsel objected to the prosecutor's rebuttal argument. She said: "Yesterday there was some cross-examination of . . . Robinson about Miss Arbaiza. I heard it at the time, but it was [a] very small issue and I felt it was not necessary to interrupt the flow. I did not, however, think that [the prosecutor] would be re-addressing it. . . . She did it in rebuttal with regards to a defense attorney telling Miss Arbaiza to say that she didn't know what happened . . . .

I don't believe that the transcript says that at all." The court ruled that the objection was untimely.

Motion for New Trial

Sanchez moved for a new trial reiterating his claim of prosecutorial misconduct. He attached a partial transcript of the interview between Robinson and Arbaiza. It states, in part: "[Arbaiza:] You know, I had just come out of my house because I heard, you know, what was happening. . . .

[Robinson:] Yeah?

[Arbaiza:] So - and then I talked to [Sanchez's] attorney. And he said, he just told me to say that. I don't know.

[Robinson:] His attorney told you to say that?

[Arbaiza:] No, he just told me to like, you know, just say whatever you think, you know, happened that day or whatever."

The prosecutor said her arguments were based on inferences from the testimony. The court denied the motion for a new trial.DISCUSSION

I. Prosecutorial Misconduct

Sanchez contends the prosecutor committed misconduct by eliciting false testimony and relying on it in her arguments to the jury. He claims she knew Robinson's testimony about what the defense lawyer told Arbaiza was inconsistent with a transcript of an interview between Robinson and Arbaiza.

The Attorney General claims Sanchez waived this issue by not promptly objecting during trial. We agree. (People v. Hill (1998) 17 Cal.4th 800, 820.) But even on the merits, the result is the same.

"A prosecutor's misconduct violates the Fourteenth Amendment . . . when it 'infects the trial with such unfairness as to make the conviction a denial of due process.' [Citations.] . . . [M]isconduct 'that does not render a criminal trial fundamentally unfair' violates California law 'only if it '"involves the use of deceptive or reprehensible methods . . . ."'' [Citations.]" (People v. Harrison (2005) 35 Cal.4th 208, 242.)

In the interview transcript Arbaiza said, "I talked to [Sanchez's] attorney. And he said, he just told me to say that. I don't know." Robinson testified Arbaiza, "made a . . . statement to me that she had spoken to the defendant's attorney and that he had told her to say I don't know."

Sanchez claims Robinson's testimony was false because Arbaiza "is referring to herself when she says I don't know . . . ." Sanchez notes that after Arbaiza's first remark Robinson asked, "His attorney told you to say this?" Arbaiza said, "No, he just told me to like, you know, just say whatever you think, you know, happened that day or whatever."

Sanchez claims Arbaiza's second remark is an unequivocal retraction which Robinson deliberately omitted to mislead the jury. But because Sanchez did not cross-examine Robinson about this, we do not know if he recalled this remark or, if he did, how he interpreted it. Sanchez neither introduced the interview transcript at trial nor did he provide Robinson a chance to respond to the claim that he falsely testified. When Sanchez belatedly raised this issue post-trial, he did not attach the complete interview transcript. From this undeveloped and incomplete record, we may not speculate that Robinson lied or was deceptive.

Sanchez's claim that the prosecutor was deceptive also fails. Her question to Robinson was leading, but it did not solicit or mention the "I don't know" remark or suggest that Arbaiza made only one statement. She asked Robinson to recount "one of the things" Arbaiza said. In her response to the new trial motion, she said she believed Robinson's testimony was a "true reflection" of what Arbaiza said and was consistent with Arbaiza's account.

The prosecutor did not conceal the second remark from Sanchez. She gave his counsel the complete transcript of the interview. Sanchez concedes his lawyer had it "during Robinson's testimony." His attorney also knew how Robinson testified, but at trial she apparently felt there was no misconduct. She did not object, did not cross-examine Robinson about it or introduce the second remark. She said, "I heard it at the time, but it was [a] very small issue and I felt it was not necessary to interrupt the flow." (Italics added.)

A. Prosecutor's Argument to the Jury

Sanchez contends the prosecutor committed misconduct by reciting Robinson's testimony to attack the defense in her rebuttal argument to the jury. But the prosecution may ask jurors to draw reasonable inferences from the evidence. (People v. Dennis (1998) 17 Cal.4th 468, 522; People v. Pinholster (1992) 1 Cal.4th 865, 948.) "Rebuttal argument must permit the prosecutor to fairly respond to arguments by defense counsel . . . ." (People v. Bryden (1998) 63 Cal.App.4th 159, 184.) Arbaiza admitted lying to defense counsel. She gave conflicting accounts to the prosecution. Sanchez's lawyer told jurors she was not credible because of her inconsistent statements. The prosecutor tried to rehabilitate her credibility. Arbaiza did not want to testify. The prosecutor asked jurors to reasonably infer that her emotional state, pressure from Sanchez and the attorney's remark were factors Arbaiza could have considered and may explain her conduct.

Sanchez suggests the jury could only conclude that the defense asked Arbaiza to lie from the prosecutor's "say you don't know" remark. That may be true, but we do not assume "'. . . that the jury drew the most damaging . . . meaning from the prosecutor's statements. . . .' [Citation.]" (People v. Brown (2003) 31 Cal.4th 518, 553-554.) Arbaiza told Sanchez's former attorney that she did not see anything. Jurors could reasonably believe that an attorney could properly suggest an "I don't know" response for such a witness. This may explain why Sanchez's trial counsel initially said this was a "very small issue."

Moreover, Sanchez has not shown prejudice. "'. . . [T]he judgment will not be reversed unless . . . it is "reasonably probable" that a result more favorable to the defendant would have occurred had the district attorney refrained from the misconduct in question . . . .'" (People v. Bryden, supra, 63 Cal.App.4th at p. 182.) Sanchez objects to one line of testimony in a case where 15 witnesses testified. Arbaiza's remarks involved Sanchez's former lawyer, not his trial counsel. The prosecutor's statements "were brief and fleeting" and, even if they were improper, they were not so damaging as to deny Sanchez a fair trial. (People v. Brown, supra, 31 Cal.4th at p. 554.)

The trial court found that even if the jury interpreted the prosecutor's remark in the most negative way, it would not change the result. The evidence of Sanchez's guilt is overwhelming. Several witnesses identified him as the shooter. By contrast, his defense case was weak. Sanchez made conflicting statements to the police about his whereabouts at the time of the shooting. Even without Robinson's testimony and the prosecutor's remarks, it is not reasonably probable the result would be different.

II. Ineffective Assistance and the Denial of a New Trial

Sanchez contends his trial counsel was ineffective by not timely raising prosecutorial misconduct at trial. He claims the court erred by not granting a new trial on its own motion because of his lawyer's performance. We disagree.

Ineffective assistance is not established where counsel's omission was the result of a trial tactic. (People v. Bolin (1998) 18 Cal.4th 297, 334.) Sanchez's counsel said she did not object to Robinson's testimony because she felt is was a "small issue" and she did not want "to interrupt the flow." That was trial strategy.

Sanchez notes that in the motion for a new trial, his lawyer said she "did not hear the full testimony as she was conferring with [Sanchez]." But her conclusory unsworn statement does not specify what she heard and what she missed. We may not speculate there was ineffective assistance based on this inadequate record. (People v. Bolin, supra, 18 Cal.4th at p. 334.)

Sanchez claims that there was no tactical reason to raise prosecutorial misconduct in a new trial motion, but not object when the prosecutor argued to the jury. The late objection prevented the court from giving a timely admonishment to jurors. But for ineffective assistance Sanchez must show his counsel's performance was inadequate and prejudicial. (Strickland v. Washington (1984) 466 U. S. 668, 687; People v. Quinn (2001) 86 Cal.App.4th 1290, 1295.) Because of the strength of the prosecution's case, he is not able to meet the second element or show that the court erred by not granting a new trial.

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.

Rebecca S. Riley, Judge

Superior Court County of Ventura

______________________________

Gilbert W. Lentz, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven E. Mercer and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code.