P. v. Clarke

Filed 3/22/07 P. v. Clarke CA1/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

This is an appeal from the conviction following a jury trial of appellant Kevin Edward Clarke for: (1) murder, (2) attempted robbery, (3) burglary, (4) discharge of a firearm at an inhabited dwelling, (5) assault with a firearm, and (6) firearm possession by a felon. In connection with the murder offense, the jury found appellant guilty of two felony-murder special circumstances: (1) engaging in the commission or attempted commission of a robbery within the meaning of Penal Code section 190.2, subdivision (a)(17), and (2) engaging in the commission or attempted commission of a burglary within the meaning of Penal Code section 190.2, subdivision (a)(17).[1] The jury also found true that appellant was armed in connection with all offenses where arming was alleged, and that he had previously been convicted of a serious felony and had served a prior prison term.

Appellant seeks to reverse his conviction on grounds of ineffective assistance of counsel. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Crimes.

On April 10, 2003 at about 7 p.m., 12-year-old Alberto G. was sitting on the stairs outside his apartment unit in East Palo Alto. He saw two men in ski masks enter the nearby apartment of Kenneth Kiki Hamel. About 8 to 10 minutes later, he saw the men run from the apartment and then heard a woman scream.

On the same evening, Katie Williams, age 71, was sitting on her couch in the apartment next door to Hamel. Suddenly, she felt hot and looked down to see blood coming from her stomach. Realizing she had been shot, Williams ran from her apartment to that of the building manager, Frank Jenkins. Jenkins immediately called 911.

Jenkins recalled hearing two cracking sounds in quick succession shortly before Williams sought his help. Within seconds, he ran out of his apartment to the building walkway, and saw two men coming quickly towards him. One man wore dark clothing and had a mask over his face. The other was a shorter, heavier unmasked African-American man. Jenkins asked what was happening, and the unmasked man mumbled something and kept going. Jenkins later identified appellant as the unmasked man in a police photo lineup.

The Crime Scene.

At the crime scene, investigators found an unfired 9 millimeter round of ammunition on Hamels apartment floor, and a bullet hole in the wall adjacent to Williams apartment. They also found 271 grams of marijuana, 53 grams of cocaine, a scale and other drug paraphernalia, several thousand dollars in cash, and a 9 millimeter handgun behind the couch and not readily available for use. Hamel was on the couch without a pulse, bleeding from the mouth, and with a gunshot wound to the abdomen.

An autopsy revealed Hamel had been shot with four bullets. The devastating and lethal bullet entered the upper left side of his chest, severely tearing the heart tissue. Nonlethal but debilitating bullets entered his shoulder blade, left chest and lung, and upper abdomen.

Williams sustained a single, potentially lethal gunshot wound to the abdomen, which entered her intestines and ureter before coming to rest in the right rear of her body.

Appellants Admissions and Recovery of the Murder Weapon.

Erika Geilfuss.

In April 2003, Erika Geilfuss and William Mines lived together in American Canyon with Geilfusss six children. Appellant was a friend of the couple and sometimes slept on their couch. Appellant had introduced them to his friend, Brian Parker, whom appellant met in a halfway house after being released from prison, where he served time for a felony conviction. Parker had recently been released from prison after serving a term for manslaughter.

On April 10, 2003 in the early evening, appellant and Parker arrived at Geilfusss house in Parkers dark-colored Cadillac. Appellant had a gun. Appellant and Parker went together into the bathroom, where Geilfuss heard clicking noises. After leaving the bathroom, appellant told Geilfuss that everything went bad during a robbery, and they had to . . . kill somebody. Appellant explained he and Parker had been involved in a robbery, and that Parker had shot the intended target several times when the man produced a gun. Appellants gun, however, had jammed. They had expected to collect about $90,000, but instead collected a mere $27 and some change.

Concerned about her children, Geilfuss told Mines to make appellant and Parker leave her house. Later, appellant returned, asking to stay on her couch. Geilfuss let him stay in his car outside her house for a few days.

Geilfuss later became suspicious the murder weapon was buried in her backyard. She saw a new hole there. Fearing Parker, and that her children would find the gun, she sought advice from her friend, Jaime Schick, a police dispatcher with California Highway Patrol, soon after April 10, 2003. With Schicks help, Geilfuss came in contact with Detective Craig Denton. Under Detective Dentons direction, police eventually recovered a .357 handgun from her backyard.

William Mines.

Mines told a story very similar to Geilfusss. At about 7 or 8 p.m. on April 10, appellant and Parker arrived at Geilfusss house in Parkers car. Appellant, appearing under the influence of heroin, stated that he and Parker had killed a man during a robbery when the man reached for a gun as they entered his apartment. Mines saw appellant had a 9 millimeter automatic gun in his waistband and Parker had a .357 magnum revolver. Appellant had heard Parkers shots, and attempted to shoot another person present in the apartment, but his gun jammed. Appellant left the apartment with a mere $27 and change after looking for things to steal and then hearing more shots. He was disgusted they had killed a man for so little money.

Mines hid appellants 9 millimeter gun in a safe at the house. At Parkers request, Mines also retrieved a .357 handgun that appellant had put in the trunk of his car, after Parker told Mines he no longer trusted appellant. Mines buried the .357 handgun, which he was told was the murder weapon, in the backyard. Parker later retrieved the 9 millimeter gun from the safe.

After receiving information from Geilfuss about the buried gun, the police contacted Mines. Mines, a self-employed drug dealer, at first refused to cooperate with them. Eventually, however, he entered a no contest plea to the charge of accessory after the fact of a murder for burying the gun in the backyard. Under the terms of the plea agreement, Mines was promised no state prison sentence so long as he cooperated fully and truthfully in subsequent prosecutions.

After entering the plea, Mines admitted for the first time that Parker and appellant had, days before April 10, 2003, asked him to participate in a robbery of a drug dealer. Parker and appellant told Mines they would be armed, and that he should bring a shotgun. They expected to collect over $60,000. Mines agreed to participate. However, appellant later informed Mines that Parker and appellant would commit the robbery alone, because Parker did not know Mines well enough to include him in the plan. Mines was told nothing further of the robbery until Parker and appellant arrived at Geilfusss house the evening of April 10.

Amanda Martin.

Amanda Martin was also present at Geilfusss house when Parker and appellant arrived on April 10. Both men appeared tense. Appellant said we killed somebody and described the crime as a robbery gone bad. He then threw a dark, semiautomatic weapon and some change on the bed. She also saw appellant try to unjam the gun.

Martin was furious with appellant for his conduct, and eventually left the house in anger after appellant threatened to hurt her if she did not quit yelling at him. She had dated appellant for several years, but now was just his friend. She knew Parker through appellant. She had dinner with appellant and Parker on April 9, 2003, and the men appeared anxious.

Drug Use.

Geilfuss, Mines and Martin testified that appellant appeared under the influence of heroin and alcohol on the night in question. The three witnesses also admitted to ingesting a few lines of cocaine that same night.

The Police Interview.

Detective Denton first contacted appellant on April 16, 2003. Appellant was uncooperative, denied knowing Parker, and stated that Geilfuss and Mines would provide an alibi for him. On June 30, 2003, however, after appellant had been arrested, he gave a full statement in a videotaped interview that was later played for the jury.

At the time of the interview, appellant was admittedly abusing heroin, and appeared to be suffering from minor symptoms of withdrawal, such as coldness and a runny nose. Appellants story of what happened on April 10, 2003 evolved over the course of the interview. Initially, appellant denied having a gun or agreeing or intending to participate in any crime at Hamels apartment, and suggested instead that Parker was involved in a murder-for-hire of which he told appellant nothing. Ultimately, however, appellant admitted the following facts.

On April 9, 2003, appellant and Parker had dinner at Parkers house with Martin and Parkers girlfriend. That night, Parker asked appellant to help him rob a guy who thinks hes John Gotti. They would take drugs and money. Appellant agreed.

On the morning of April 10, 2003, appellant drove Parker to Palo Alto in Parkers car so he could collect money from certain people (referred to as going on a paper route). They stopped at five to eight places that day in Menlo Park and East Palo Alto to collect money. Their second to last stop was at the apartment of James Miller, where they received two guns, a revolver and a 9 millimeter. Parker warned appellant they may have trouble at the next stop. When they arrived at Hamels apartment, Parker put on the mask and took out the revolver. Appellant knocked on the door. Parker started firing the gun soon after entering the apartment, when he saw that Hamel had a gun. A second man present in the apartment ran into the kitchen. Appellant was scared. He pulled out the 9 millimeter and found a bullet sticking out of it. He racked the gun, and the bullet fell out. He never pointed the gun at the second man in the kitchen. After hearing a third shot, appellant put the gun back into his waistband and left the apartment. Parker was still firing, but must have left the apartment soon after appellant. Appellant described what happened as a robbery that went bad.

Appellants Trial Testimony.

Appellants trial testimony differed from statements he made to police during the June 30, 2003 interview. Appellant testified he was coming down off of heroin when he gave the taped statement to police. Appellant last took heroin 24 hours before the interview. At the time of the robbery, appellant was using heroin daily.

On April 10, 2003, he used heroin and drank alcohol throughout the day. Parker asked appellant to drive him on a paper route to collect money from various individuals who owed him. Appellant knew Parker had a prior conviction for manslaughter. Parker never told appellant he intended to commit a robbery. Appellant said he suspected that Parker entered Hamels apartment intending to kill Hamel, and had no idea why Parker took him along.

Appellant had never fired a gun before April 10, 2003, and was not very familiar with how to operate one. On that day, Miller gave appellant the 9 millimeter and told him it was ready for firing when appellant and Parker stopped at Millers apartment. Appellant and Parker then left Millers apartment and went to Hamels apartment. Appellant thought they were going to Hamels apartment to collect money, and was too high to consider why he would need a gun.

When they arrived at Hamels apartment, appellant knocked on the door. Parker put on a mask and began firing as soon as he entered. The 9 millimeter was tucked in appellants waistband. Appellant entered about 13 feet into the apartment, and stopped, crouching down at the kitchen counter. He saw another person in the kitchen, but did not see drugs or money. Upon hearing Parker fire the third shot, appellant pulled out the 9 millimeter to protect himself, and saw a cartridge stuck in it. He rigged the gun, causing the stuck cartridge to fall out. He never intended to shoot anyone, and did not attempt to fire the weapon after freeing the stuck bullet. He left the apartment, scared for his life, after Parker fired a fourth shot.

Appellant recalled tossing the inoperable 9 millimeter in the back seat of Parkers car when they left Hamels apartment, and last saw it in Parkers possession when they reached Geilfusss house in American Canyon. He recalled throwing some money on the bed at Geilfusss house, but denied telling her, Mines, or Martin that he had taken it from Hamels apartment. Appellant also denied telling them that a robbery had gone bad. He insisted he told that to police during his June 30, 2003 interview because he believed that was what the police wanted to hear. Appellant really believed, however, that Parker had been hired to murder Hamel. Appellant knew he could have stopped the police interview at any time, but he continued it because he was sick from heroin withdrawal and confused.

Appellant had a prior conviction for second degree robbery in 1997.

The Verdict and Sentencing.

On October 3, 2005, the jury found appellant guilty of murder with the special circumstances of committing murder while engaged in the commission or attempted commission of robbery and burglary. The jury also found appellant guilty of attempted robbery (a lesser included offense), burglary, shooting a firearm at an inhabited dwelling, assault with a firearm, and firearm possession by a felon. The jury found true that appellant was armed in connection with all offenses (except the firearm possession offense, an element of which is being armed), and that he had previously been convicted of a serious felony and had served a prior prison term. Appellant received a sentence of life without the possibility of parole plus 14 years. This appeal followed.

DISCUSSION

Appellant claims he failed to receive effective assistance of counsel, a right guaranteed to him under the United States and California Constitutions, for two reasons: (1) his counsel failed to respond to the prosecutors statements in closing argument that appellant fired the bullet that went through the wall and hit Ms. Williams, Hamels next door neighbor, and (2) his counsel failed to object on grounds of prosecutorial misconduct to certain other statements in the prosecutors closing argument. We disagree.

A criminal defendant has a right to effective assistance of counsel under both the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution. (Strickland v. Washington (1984) 466 U.S. 668, 686-688; People v. Ledesma (1987) 43 Cal.3d 171, 215.) California courts have set forth a two-prong test in determining whether a defendant has demonstrated ineffective assistance of counsel. First, the defendant must demonstrate counsels performance was deficient because his representation fell below an objective standard of reasonableness . . . under prevailing professional norms. (Strickland, [supra,] 466 U.S. at pp. 687-688; [People v.] Ledesma, supra, 43 Cal.3d at pp. 215-216.) (In re Avena (1996) 12 Cal.4th 694, 721.) Second, he must demonstrate prejudice flowing from counsel's performance or lack thereof. (In re Avena, supra, 12 Cal.4th at p. 721; see also Strickland, supra, 466 U.S. at pp. 691-692; People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.)

In determining whether a defendant has demonstrated counsels performance was deficient, the reviewing court must give great deference to the tactical decisions of trial counsel in order to avoid second-guessing counsels 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. . . .   (In re Fields (1990) 51 Cal.3d 1063, 1069-1070, quoting In re Cordero (1988) 46 Cal.3d 161, 180 and People v. Ledesma, supra, 43 Cal.3d at p. 216.) Judicial deference, however, is not abdication and must never be used to insulate counsels performance from meaningful scrutiny and thereby automatically validate challenged acts or omissions. (In re Fields, supra, 51 Cal.3d at p. 1070.)

Prejudice is demonstrated when a reasonable probability exists that, but for counsels unprofessional errors, the result of the proceeding would have been different. (In re Avena, supra, 12 Cal.4th at p. 721.) In other words, there must be a probability sufficient to undermine confidence in the outcome. (Ibid.; see also Strickland, supra, 466 U.S. at p. 694; People v. Jennings (1991) 53 Cal.3d 334, 357.)

We apply these principles to the facts at hand.

Failure to Object to the Prosecutors Argument That Appellant Shot Ms. Williams.

Effectiveness of Counsels Assistance.

Appellant condemns his trial counsel for not responding in closing argument to several statements made in the prosecutors closing argument regarding who fired the bullet that went through the wall and into Ms. Williams abdomen. Near the beginning of his closing argument, the prosecutor stated: This Defendant is charged with that which he admitted on the videotape and told the other folks. He is not charged with firing a bullet into the body of Mr. Hamel. He is not charged with firing a gun at all. He is not charged with having a gun that works, although I believe that I will argue to you that the evidence shows that his participation included having a gun that works. And I would suggest to you that the evidence shows that he was the one that put the bullet in poor Ms. Williams, minding her own business next door. But regardless of that, in order to decide these charges, those are not things you have to decide. Those are not things that you have to decide.

Later, the prosecutor stated: Who put the bullet through the wall into Katie Williams, the Defendant did. Of course the Defendant did. Of course the Defendant did, thats how he his [sic] jammed. Thats how his gun jammed.

In arguing ineffective assistance of counsel, appellant suggests the prosecutors statements were contrary to the undisputed evidence that he did not shoot Ms. Williams. He points to his own testimony and statements to the police and to his friends, Ms. Martin, Ms. Geilfuss and Mr. Mines, that he never fired the 9 millimeter and that the gun was inoperable. He also points out he was not charged with personally inflicting great bodily injury upon Ms. Williams, or with firearm use enhancements; rather, he was charged with firearm arming enhancements.

We agree appellants trial counsel failed to directly address in closing argument the prosecutors suggestion that the evidence was consistent with appellant firing the shot that hit Ms. Williams. Nonetheless, appellants trial counsel did strongly argue to the jury the defenses theory of the case that Hamels murder was not a robbery gone bad but a murder-for-hire by Parker of which appellant was unaware. Consistent with that theory, appellants trial counsel directed the jury to evidence that, among other things, Parker received two guns from Miller just before going to Hamels apartment, their last stop of the day; that Parker began shooting as soon as he entered Hamels apartment; that another person present at Hamels apartment was left unharmed; and that drugs and money in plain view in Hamels apartment were not taken. Appellants trial counsel also pointed out that appellant was inexperienced with guns, and was loaded on drugs and alcohol, incapable of forming the requisite specific intent to commit robbery or burglary, on the night of the crime. He suggested that appellant told police it was a robbery gone bad only because he hoped to get a sweetheart deal from police and because he feared Parker.

We conclude that, considered as a whole, appellants trial counsels argument was adequate. While perhaps his argument would have been more effective had he responded to the prosecutors belated claim that appellant may have shot Ms. Williams, it was not rendered ineffective by the omission. Moreover, while we can only speculate on this record why counsel failed to respond to the argument, we cannot conclude his failure had no rational tactical purpose, as the law requires. (People v. Frierson (1979) 25 Cal.3d 142, 158.) For example, counsel may have preferred to focus on what he deemed the more critical issue in the case appellants lack of intent to commit robbery or burglary rather than to engage in a point-by-point rebuttal to the prosecutors argument. As our states Supreme Court has aptly noted, [a] mere failure to object to argument seldom establishes counsels incompetence. (People v. Thomas (1992) 2 Cal.4th 489, 531.) Rather, in most cases, it is a matter of trial tactics better left to the trial counsels judgment than to judicial hindsight. (People v. Frierson, supra, 25 Cal.3d at p. 158.)

Prejudice.

Even were we to conclude, however, that appellants trial counsel unreasonably failed to respond to the prosecutors suggestion that appellant may have shot Ms. Williams, we would find no resulting prejudice to appellant.

Under the law of felony murder, the jury could have found appellant guilty of aiding and abetting regardless of whether he fired the bullet that hit Ms. Williams. As the trial court correctly instructed the jury: If a human being is killed by any one of several persons engaged in the commission or attempted commission of the crime of burglary and/or robbery, all persons who either directly and actively commit the act constituting that crime or who with knowledge of the unlawful purpose of the perpetrator of the crime, and with the intent or purpose of committing, encouraging or facilitating the commission of the offense, aid, promote, encourage or instigate by act or advice its commission are guilty of murder of the first degree whether the killing is intentional, unintentional or accidental.

Consistent with that instruction, the prosecutor later explained to the jury: Robbery, burglary, once those crimes have been found or either one of them, then the death that occurred inside is necessarily a murder of the first degree, as to Mr. Clarke whether he pulled a trigger or not. Whether he pulled a trigger or not. The evidence supported the commission or attempted commission of those crimes. Testimony from several witnesses, including Ms. Geilfuss, Mr. Mines, and Ms. Martin, corroborated appellants statements to police that he was engaged in a robbery gone bad that had been planned prior to April 10, 2003. Moreover, appellants own testimony proved he knocked on Mr. Hamels door, armed with a gun and in the voluntary company of Parker, a convicted murderer who was armed and wearing a mask. Given that evidence, there was no reasonable probability that but for trial counsels failure to address the issue of who shot Ms. Williams in closing argument, appellant would have received a more favorable result. (E.g. People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.)

Failure to Object to the Prosecutors Alleged Misconduct.

Effectiveness of Counsels Assistance.

Appellant contends his trial counsel further rendered ineffective assistance by failing to object on proper grounds to the following statement by the prosecutor in closing argument: I talk a lot about the fact that you took an oath, thats the law, you got to follow it. I respectfully hope and fervently hope that no one would be tempted to disregard it. But consider this, we just, we cant have this kind of behavior. We just cant. You cant live in a society where some very nice 71-year old lady is sitting on her couch and catches a bullet because these people choose to behave in this fashion. We cannot have a society where someone like Mr. Hamel, whatever you think and the fact that he might have been selling marijuana, hes shot to death in his own home for money, for stupidity. We just cant tolerate this behavior, and the law is very, very, very, very clear as to how the jury are [sic] to treat it.

Following the prosecutors statement, appellants trial counsel interrupted with this objection: Your Honor, this is not rebuttal anymore. The trial court overruled his objection. Appellant argues his trial counsel was deficient in failing to object to the statement on grounds of prosecutorial misconduct. He reasons that the prosecutor, by insert[ing] a but, before launching into his diatribe concerning what we cant have in our society, misstated the law and intended to arouse the passion or prejudice of the jury. We disagree.

Putting aside the law regarding the effectiveness of assistance from counsel, we conclude the prosecutors statement was within the realm of appropriate argument. The prosecutor repeatedly advised jurors of their obligation to follow the law. For example, soon after making the above statement that appellant claims was prosecutorial misconduct, the prosecutor told jurors: In fulfillment of your oath, I ask you based on this evidence to do no more, but certainly no less than the law requires. Moreover, the trial court instructed the jury that counsels statements are not evidence, and that they are duty-bound to follow the law. Specifically, the trial court stated: 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. In this context, we conclude no reasonable jury would have interpreted the prosecutors use of the word but before his statement that society should not tolerate this kind of behavior as an invitation to disregard the law. (People v. Clair (1992) 2 Cal.4th 629, 664 [no prosecutorial misconduct occurs where there is not a reasonable likelihood that the comment could have been taken to bear the implication defendant asserts].)

Because the prosecutors statement was not misconduct, the failure to object to it did not amount to ineffective assistance by appellants counsel. We thus need not address whether his failure to object was prejudicial to appellant.

The Abstract of Judgment Requires Modification.

The parties agree the 1-year enhancement imposed under section 667.5, subdivision (b) for appellants prior prison term should be stricken. Appellants prison term was served for the 1997 robbery that resulted in the 5-year serious felony enhancement under section 667, subdivision (a). A trial court is precluded from imposing enhancements for both a prior conviction under section 667, subdivision (a) and for the prison term served for the same conviction under section 667.5, subdivision (b).

(People v. Jones (1993) 5 Cal.4th 1142, 1153.) Accordingly, the judgment must be modified by striking the 1-year enhancement.

DISPOSITION

The judgment is modified by striking the 1-year enhancement under section 667.5, subdivision (b) for appellants prior prison term. The judgment is otherwise affirmed.

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Parrilli, Acting P. J.

We concur:

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Pollak, J.

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Siggins, J.

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[1] Unless otherwise stated, all citations herein are to the Penal Code.