Filed 6/20/17 P. v. Petty CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

DALE PETTY,

Defendant and Appellant.


G053041

(Super. Ct. No. 15CF0004)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Dale Petty was convicted of attempted premeditated murder and aggravated assault for stabbing a fellow homeless man during a dispute over a bicycle. On appeal, he contends his attorney was ineffective for failing to object to an officer’s testimony regarding the victim’s veracity. We disagree and affirm the judgment.
FACTS
On December 29, 2015, appellant let Gerardo Salas borrow his bicycle. At the time, both men were homeless and living at the Civic Center Plaza in Santa Ana. The next morning, appellant saw Salas at the plaza and asked him for his bike. Salas told appellant the bike had been stolen. He said he would get appellant a new bike, but appellant was not appeased. Without warning, he lunged forward and stabbed Salas in the stomach with a knife, lacerating his colon. According to Salas and two other people who witnessed the incident – Rudy Gonzalez and Amber Alvarez – Salas did not have a weapon or do anything to provoke the attack.
Appellant testified to the contrary. He claimed that when he asked Salas about his bike, Salas punched him in the face, causing him to fall. Then Salas started kicking him relentlessly. As appellant was trying to fend off the attack, he saw an open knife on the ground next to him. Fearing for his safety, he grabbed the knife and stabbed Salas in self-defense. Although appellant claimed he was a peaceful man, the evidence established he had stabbed someone during an altercation at Civic Center Plaza a few years before the instant case. Appellant also admitted he had previously been convicted of an offense involving moral turpitude.
The jury convicted appellant of assaulting and attempting to murder Salas. It also found true allegations appellant acted with premeditation and deliberation, inflicted great bodily injury and used a deadly weapon. After finding appellant had served five prior prison terms, the trial court sentenced him to 18 years in prison.


DISCUSSION
Appellant contends his trial attorney was ineffective for failing to object to opinion testimony regarding Salas’ veracity. We do not see it that way.
At trial, Salas testified he pushed appellant away after appellant stabbed him. Defense counsel tried to make an issue out of that while cross-examining Joe Castellanos, the police officer who interviewed eyewitnesses Gonzalez and Alvarez after the stabbing. Defense counsel got Castellanos to admit that neither Gonzalez nor Alvarez said anything to him about Salas pushing appellant. The apparent point of this was to undermine the victim’s version of the offense by showing that there were discrepancies in the prosecution’s witnesses’ stories about how the stabbing played out.
During Castellano’s redirect examination, the prosecutor attempted to spin this issue in his favor. He got Castellanos to admit that when he interviewed Salas in the hospital after the stabbing, he (Castellanos) had no information about Salas pushing appellant away after the attack. In fact, Castellanos testified the first time he heard anything about that is when Salas volunteered it to him in the hospital. Asked if the fact Salas volunteered this information indicated anything to him, Castellanos said it made him think Salas was telling him the truth. During his closing argument to the jury, the prosecutor reminded the jury of Castellanos’ opinion in this regard. The question before us is whether defense counsel was ineffective for failing to object to Castellanos’ testimony about Salas’ credibility. For the reasons explained below, we believe the answer is no.
Our analysis is guided by a two-part test. “‘“‘[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was “deficient” because his “representation fell below an objective standard of reasonableness . . . under prevailing professional norms.” [Citations.] Second, he must also show prejudice flowing from counsel’s performance or lack thereof. [Citations.] Prejudice is shown when there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”’” [Citations.]’ [Citation.] This second part of the . . . test ‘is not solely one of outcome determination. Instead, the question is “whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” [Citation.]’ [Citation.]” (In re Hardy (2007) 41 Cal.4th 977, 1018–1019.)
As our Supreme Court has explained, “Lay opinion about the veracity of particular statements by another is inadmissible on that issue. . . . With limited exceptions, the factfinder, not the witnesses, must draw the ultimate inferences from the evidence. Qualified experts may express opinions on issues beyond common understanding [citation], but lay views on veracity do not meet the standards for admission of expert testimony.” (People v. Melton (1988) 44 Cal.3d 713, 744.)
Respondent acknowledges these principles. However, the state insists defense counsel was not ineffective for failing to object to Castellanos’ testimony about Salas’ veracity because it would have only drawn further attention to the issue. However, if that attention consisted of the court instructing the jury to disregard Castellanos’ opinion of Salas’ veracity, that could have only helped appellant’s case, so this attempted rationalization for defense counsel’s inaction is unavailing.
Respondent also claims Castellanos’ testimony was proper under the rule announced in People v. Chatman (2006) 38 Cal.4th 344 (Chatman). Chatman held a witness can testify as to their personal belief about whether another witness is telling the truth, if they have personal information about the event in question. (Id. at p. 383.) The court reasoned, “A [person] who is a percipient witness to the events at issue has personal knowledge whether other witnesses who describe those events are testifying truthfully and accurately. As a result, he might also be able to provide insight on whether witnesses whose testimony differs from his own are intentionally lying or are merely mistaken.” (Id. at p. 382.) In our case, however, Castellanos was not present during the stabbing, and therefore he lacked personal knowledge as to whether Salas was telling the truth about what happened. Under our circumstances, Chatman is inapt.
Nevertheless, we do not believe appellant was prejudiced by Castellanos’ testimony on this issue. Even before Castellanos gave his opinion regarding Salas’ veracity, the prosecution had already established the foundation for that opinion. To wit, the prosecution had already proven that Salas volunteered the information about his having pushed appellant before the police learned this from any of the other witnesses. Based on that alone, the prosecutor would have been able to argue Salas was credible, just as Castellanos opined in his testimony.
Nor do we think the source of opinion would have made any difference in this case. While two independent eyewitnesses corroborated Salas’ version of events, the veracity of appellant’s testimony was undermined by his obvious motive to lie and his prior criminal behavior. What Castellanos made of Salas’ statement based upon facts the jury could weigh equally well added little to the balance.
Also, photographs taken of appellant at the scene of the crime did not substantiate his claim that Salas punched him in the face, kicked him repeatedly and generally roughed him up. In fact, the photos did not depict any injuries on appellant. Factoring in as well the astronomical odds against appellant just happening to find a knife at the scene of the crime, as he claimed he did, and we are compelled to the following conclusion: It is not reasonably probable appellant would have obtained a more favorable result had his attorney objected to Castellanos’ improper opinion testimony, nor did that testimony render the trial fundamentally unfair. Thus, there is no basis for reversal. (Cf. People v. Melton, supra, 44 Cal.3d at pp. 744-745 [improper introduction of investigator’s opinion regarding veracity of exculpatory information deemed harmless where other properly admitted evidence supported the investigator’s opinion and there was strong evidence of the defendant’s guilt].)

DISPOSITION
The judgment is affirmed.



BEDSWORTH, ACTING P. J.

WE CONCUR:



MOORE, J.



IKOLA, J.