P. v. Poole

Filed 10/10/06 P. v. Poole CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. Rand S. Rubin, Judge. Affirmed.

Randi Covin, 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, Susan D. Martynec and Marc E. Turchin Supervising Deputies Attorney General, for Plaintiff and Respondent.

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Derrick Poole appeals his convictions on one count of possession for sale of cocaine and one count of transportation of a controlled substance resulting from a routine traffic stop. Prior to trial the court ruled evidence of Poole’s status on parole and his past gang involvement, which police discovered during the traffic stop, would not be admissible at trial. Instead, the parties stipulated the police had probable cause to detain and place Poole in handcuffs after police stopped him. However, during his direct examination Poole testified at some length concerning the nature of his interactions with police during the traffic stop and as a result the court concluded Poole “opened the door” to evidence concerning Poole’s parole status and prior gang involvement. On appeal, Poole argues his counsel was ineffective during Poole’s direct examination, because he elicited responses from Poole which “opened the door” to the otherwise inadmissible gang and criminal history evidence. We do not agree. As we shall explain, Poole has failed to demonstrate his counsel was deficient or that his counsel’s performance resulted in prejudice. Accordingly, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On the evening of June 3, 2005, two LAPD officers, Fernandez and Armando, were patrolling “skidrow” in downtown Los Angeles in an area having a reputation for high narcotics use and sales. They observed a white Ford Thunderbird, driven by Poole. After checking the license plate number on the car, officers discovered it had expired registration. The officers pulled the vehicle over.

Officer Armando approached the car and spoke with Poole. According to the officer, Poole disclosed he was on parole. Officer Armando ordered Poole out of the vehicle. Officer Fernandez placed Poole in handcuffs. During the discussion with Poole, the Officer stated that it appeared Poole had something in his mouth -- he had a raised bump to the right of his cheek. The officers stated they asked Poole what he had in his mouth and Poole told them it was candy. They asked him to spit it out. According to the officers, Poole spit out a small piece of black plastic. The officers continued to ask Poole a number of field identification questions. At some point Poole also revealed he had belonged to a gang, the Hard Time Hustlers, back in 2001 but had ended his involvement in 2002 because he was tired and he wanted to raise his children. He also told them his gang moniker had been “Mayhem.” The officers continued to believe Poole had something in his mouth and they asked him to open it. The officers testified that Poole opened his mouth and they observed Poole had a number of small, black plastic bindles on the bottom part of his jaw. Officer Fernandez immediately recognized, based on his experience, the bindles were consistent with the packing of narcotics. The officers ask Poole to spit them out; Poole spit eight plastic bindles onto the ground. These bindles were later discovered to contain rock cocaine.

Poole did not have any drug use paraphernalia on him when he was arrested. According to officers, nothing about Poole’s behavior or appearance suggested he was a heavy cocaine user. The packaging of the drugs suggested that Poole possessed them for sale.

Poole was arrested and charged with possession of narcotics for sale and transport of a controlled substance.

Prior to trial the court and the parties discussed the admissibility of the evidence concerning Poole’s parole status and his gang involvement. Poole requested the court to exclude the evidence as irrelevant and overly prejudicial. Initially the prosecutor agreed not to present the evidence. The next day, however, the prosecutor explained that after discussing the matter with the arresting officers, she had changed her position. She stated the officers ordered Poole out of the car and handcuffed him only after learning he was on parole and was involved with gangs. Consequently, the prosecutor argued the gang and parole evidence was probative to explain why the officers had taken certain actions during the arrest, because otherwise it might appear to the jury the police had overstepped their boundaries in the manner they had detained Poole. Poole continued to object on the grounds of relevance and undue prejudice. After further discussion, the court decided to resolve the matter by proposing the jury would be informed only that the police had probable cause to stop and handcuff Poole. Counsel stipulated to the proposal. During the prosecution’s direct examination of Officer Fernandez, the stipulation was read to the jury.

During the defense case, Poole testified. During direct examination, Poole’s counsel asked him a number of questions about his initial contact with the officers after he was stopped. Poole stated that among other questions Officer Armando asked him why he was in the area[1] and asked him if he had a driver’s license. Poole testified he wanted to get out of the car because his license was in his back pocket. He testified Officer Fernandez “was kind of aggressive a little bit with the way he had his gun,” and appellant felt he was “already stopped” and “there’s no need to -- you know, . . .” He said he was directed to get out of the car and hand over his license and he complied. When his counsel asked what happened next, Poole testified the officer asked him to step onto the curb so he could search both him and the car, “and if everything checked out . . . I'll be going on my way . . . .”

At that point, the court interrupted the direct examination and asked to speak with counsel at sidebar. The court stated that notwithstanding the earlier stipulation (i.e., that the police officers had probable cause to order appellant out of his car and to handcuff him), Poole’s responses were “painting a picture that the cops just want to stop him and search the car because they’re bad guys.” The court told Poole’s counsel, “I think you’re opening the door.” Thereafter, Poole’s counsel explained his tactics:

“Your Honor, the purpose . . . is to show that it was an extended conversation and they don’t notice anything in his mouth. There was nothing in his mouth. That’s the only purpose for having them talk to him. He had this conversation in the car, they didn’t see anything in his mouth, they had this conversation on the street, they don't see anything in his mouth. . . . Officer Fernandez said it was the third time that he saw the bulge.”

The court then noted Poole had said “the cops told me they just wanted to search me and search the car, then they’re going to let me go,” to which defense counsel observed that although “that's the way [Poole] responded[,] I did not have him say that.” The court remarked it had “gone out of my way to keep stuff like that out. . . .” Defense counsel told the court it had not been his intent to “go in that direction,” and that, “my reason for talking about the conversation, not having to do with anything else but rather that the officers did not see anything in his mouth.” The court determined defense counsel opened the door and that it would allow the prosecutor to ask whether, before the officers searched his car, appellant told them he was on parole. Defense counsel unsuccessfully attempted to limit the inquiry to the issue of parole (“I’d ask that the gang information be kept out”), the court nonetheless ruled Poole’s gang affiliation could also be explored.

When direct examination of Poole resumed, counsel elicited testimony from Poole that when asked, he told the officers that he was on parole. Defense counsel also elicited from Poole the fact he had four prior felony convictions and that in response to the officer’s inquires, he belonged to the Hard Time Hustlers gang in 2001, but he “stopped all that” in 2002. Poole stated his gang moniker was “Mayhem.”

Poole denied he had any bindles in his mouth, claimed he never told the officers he had candy in his mouth, and never spit anything on the ground. When Poole asked the officers why he was being arrested, according to Poole, they told him “because we’ve got some drugs, you know, unless [he] knew something.” Poole believed the officers wanted him to be an informant; he told the jury one of the officers told him he could “continue on [his] way” if he shared information with them, which he refused to do.

Officer Armando was called as a defense witness. During cross-examination, he denied that either he or his partner had tried to line up Poole as an informant. The officer testified he asked Poole if he was on parole while Poole was still in his car, and after responding affirmatively, the officer asked Poole to get out of the car for officer safety purposes.

During the defense closing argument, counsel argued it was possible the officers picked the drugs up from the street and sought to use them in an attempt to influence Poole to become an informant. In his only reference to his gang affiliation in argument, defense counsel pointed out that Poole’s gang was known for guns and violence, not drugs. Defense counsel told the jurors that the “easiest way” to show them he never had the bindles in his mouth was to consider the size of the contraband. Counsel showed the bindles to the jury and asserted, “if you had eight of these bindles in your mouth the way the officer said he [appellant] had them in his mouth, he could not talk.” Defense counsel maintained that if Poole had the bindles in his mouth, the officers would have seen them immediately, rather than having several conversations with appellant before observing them.

The jury found Poole guilty. Poole appeals.

DISCUSSION

On appeal, Poole claims his trial counsel was ineffective when he asked “careless” direct examination questions which “opened the door” and lead to the admission of prejudicial parole and gang evidence.

To establish a claim of ineffective assistance of counsel, the defendant must prove both counsel’s representation was objectively deficient, below a reasonable standard of care under prevailing professional norms, and prejudice flowing from the deficient performance, that is, but for counsel’s errors, the defendant would have received a more favorable result. (People v. Waidla (2000) 22 Cal.4th 690, 718.) Defendant has the burden of proving an ineffective assistance. (People v. Ledesma (1987) 43 Cal.3d 171, 218.)

Given the difficulties inherent in making this evaluation, this court indulges in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered a sound trial strategy.” (People v. Thomas (1992) 2 Cal.4th 489, 530-531.) “Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” (Strickland v. Washington (1984) 466 U.S. 668, 690-691.)

Moreover, a reviewing court need not determine “whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” (In re Fields (1990) 51 Cal.3d 1063, 1079.) Defendant must affirmatively demonstrate prejudice. It is not sufficient for the defendant to show the error had some “conceivable effect“ on the outcome of the proceeding; defendant must prove that there is a “reasonable probability,” that absent the errors the result would have been different. (People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.)

“If the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ (People v. Pope (1979) 23 Cal.3d 412, 426 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].)” (People v. Mayfield (1997) 14 Cal.4th 668, 783-784.)

Here, Poole’s counsel explained why he inquired into the conversations Poole had with the arresting officers. Counsel stated he was trying to show Poole had a long conversation with officers, yet the officers did not notice anything in Poole’s mouth for an extended period. Counsel wanted to cast doubt on the officer’s claim Poole had any drugs; defense counsel was attempting to show that given the number of bindles in Poole’s mouth it would have been impossible for officers to fail to immediately notice the drugs, and their failing to do so, proved the officers’ version of events was unbelievable. Where the tactical choice of trial counsel is the basis for a claim of ineffective assistance, we accord “great deference to the tactical decisions of trial counsel in order to avoid second-guessing counsel’s tactics and chilling vigorous advocacy by tempting counsel to defend himself or herself against a claim of ineffective assistance after trial rather than to defend his or her client against criminal charges at trial. . . . [Citations.] However, deferential scrutiny of counsel’s performance is limited in extent and indeed in certain cases may be altogether unjustified. [D]eference is not abdication [citation]; it must never be used to insulate counsel’s performance from meaningful scrutiny and thereby automatically validate challenged acts or omissions. [Citations.] . . . (Avena I, supra, 12 Cal.4th at p. 722, fns. omitted, citing and quoting In re Fields (1990) 51 Cal.3d 1063, 1069-1070; In re Cordero (1988) 46 Cal.3d 161, 180; People v. Ledesma (1987) 43 Cal.3d 171, 216.)” (People v. Avena (1996) 13 Cal.4th 394, 444, internal quotation marks omitted.)

The record is clear that defense counsel’s questions were motivated by his trial strategy. Poole complains, however, the value of the defense strategy was minimal in comparison to the prejudice resulting from the admission of the evidence. We cannot agree. The defense effort to undermine the police’s claim that Poole had eight bindles of rock cocaine in his mouth, is crucial to his defense. If the jury were to agree, as counsel had urged, that the amount of drugs found made it impossible for the police to not have immediately noticed them, then the jury would have most likely disbelieved the police’s claims Poole possessed the drugs.

Moreover, Poole’s trial counsel did not ask questions which directly sought to reveal information that ran afoul of the parties’ stipulation. In fact counsel specifically told the court he did not intend or anticipate Poole’s specific responses. In hindsight, defense counsel could have asked more narrowly tailored questions. Nonetheless, to prevail on this prong of an ineffective assistance claim, Poole needs to show more than the case might have been handled differently. “‘It is not sufficient to allege merely that the attorney’s tactics were poor, or that the case might have been handled more effectively . . . . Rather, the defendant must affirmatively show that the omissions of defense counsel involved a critical issue, and that the omissions cannot be explained on the basis of any knowledgeable choice of tactics.’” (People v. Lamphear (1980) 26 Cal.3d 814, 828-829.)

Consequently, we cannot say counsel’s attempt to make these points amounted to unsound or unreasonable trial strategy.

In rejecting, Poole’s attacks on his counsel’s trial tactics, we also do not agree his situation is akin to the cases he cites, namely, People v. Cooper (1979) 94 Cal.App.3d 672, 682, or People v. Perez (1978) 83 Cal.App.3d 718, 734. In both Cooper and Perez, the court found counsel’s performance prejudicially deficient where defense counsel elicited testimony that the defendants were involved in prior criminal conduct similar and/or identical to the charges in the case. The counsels’ conduct in those cases effectively deprived the defendants of their respective defenses. (People v. Cooper, supra, 94 Cal.App.3d at p. 682; People v. Perez, supra, 83 Cal.App.3d at pp. 733-734.) Such is not the case before us. The presentation of evidence concerning Poole’s status on parole and his prior gang involvement did not relate to his guilt on these charges or to his defense.

In view of all of the foregoing, we conclude Poole has not demonstrated that counsel’s representation was objectively deficient. His claim of ineffective assistance of counsel fails.[2]

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, J.

We concur:

JOHNSON, Acting P.J.

ZELON, J.

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[1] Poole told the jury he had come to the area to meet a friend, Kareem Davis. Mr. Davis arrived near the corner where Poole was being detained and told the jury that he observed one of the officers flash his light on the ground, as if he were trying to look for something, while the officer walked to the corner. Davis told the jury he saw the officer bend down and it appeared that he picked something up from the ground. The officer then called out to the other officer and shortly thereafter they put Poole in the patrol car. When Poole testified, he also told the jury, Officer Fernandez had walked to the corner and thereafter called out to his partner, and then when the officers returned they put him in the police car.

[2] Given this conclusion, we need not reach the prejudice prong of his claim.