Lead Opinion
Opinion
Omar David Mesa appeals from the judgment entered following his conviction by a jury for grand theft of personal property with a special finding, based on his admission to the court in a bifurcated proceeding, he had suffered one prior serious or violent felony conviction within the meaning of the “Three Strikes” law. Mesa contends the evidence is insufficient to support his conviction for grand theft, the prosecutor impermissibly commented during closing argument on his decision not to testify and his counsel’s failure to object to the prosecutor’s improper argument constituted ineffective assistance of counsel. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Summary of the Evidence Presented at Trial
Approximately 2:00 p.m. on July 29, 2004, Armando Aleman left his truck in the parking lot of the Bank of America branch in Huntington Park, walked inside the bank and was given access by a bank employee to a locked, specialized area of the branch reserved for merchants with accounts at the bank. When he initially entered the merchant area, there were no other customers there. Aleman, a regular customer of the branch, withdrew $5,000 in cash and obtained a cashier’s check for $7,500. He was assisted with his transactions by branch teller Victor Ruiz.
While Ruiz was helping Aleman, Sergio Cuevas returned from lunch and
It took no more than two minutes for Cuevas to change Mesa’s $100 bill for him. After receiving the smaller bills, Mesa walked to the door of the merchant area, opened it, but then turned around, went back inside and sat in the same chair he had previously used. At this point Mesa was using his cellular telephone, holding it between his neck and his shoulder, and counting or shuffling the bills he had received. However, according to Cuevas, at the same time Mesa was also looking up and in the direction of Aleman and Ruiz, something Cuevas found strange. Mesa left the merchant area a minute or two before Aleman.
Neither Cuevas nor Ruiz had seen Mesa at the branch before. Cuevas was troubled by Mesa’s behavior (and, in particular, by the fact he had been watching Aleman, who was withdrawing a large sum of money) and spoke to Ruiz about it immediately after Mesa and Aleman left the branch. Ruiz was also concerned something
After completing his transaction, Aleman put the money and check in a vinyl pouch with the bank’s logo on it, placed the pouch inside a white plastic bag and, after returning to his truck,,.set the bag inside the truck’s center console. Aleman then drove from the bank’s parking lot to the drive-through lane of the fast-food restaurant located next door. As he drove, Aleman heard a sound that suggested he had a flat tire. After receiving his meal, Aleman stopped his truck on the street next to the bank’s parking lot and discovered his right rear tire had been slashed. Approximately three minutes elapsed while Aleman was outside the truck examining the tires. When he reentered the truck, Aleman noticed the center console was open and the money and check were missing. Aleman had left both the truck and the center console unlocked.
Mesa’s thumbprint was found on Aleman’s truck on the exterior of the driver’s side door handle.
Defense witness Johanna Trujillo testified she and Mesa were job hunting in Huntington Park on the day of the crime and she gave Mesa a $100 bill to change at the Bank of America branch before they went to lunch because fast-food restaurants do not accept large bills. According to Trujillo, she illegally parked her car near the bank’s front entrance, not in the parking lot where Aleman’s truck was located. Mesa went from Trujillo’s car to the bank, was inside the branch for approximately 20 minutes and then returned directly to her car.
Mesa did not testify on his own behalf.
2. The Jury’s Verdict and Sentencing
The jury found Mesa guilty of one count of grand theft. (Pen. Code, § 487a.) In a bifurcated proceeding Mesa admitted he had suffered a prior serious or violent felony conviction (for attempted murder) that constituted a strike within the meaning of the Three Strikes law. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) Mesa’s motion for a new trial was denied, and he was sentenced to an aggregate state prison term of four years (the middle term of two years doubled pursuant to the Three Strikes law).
DISCUSSION
1., 2.
3. Mesa Has Forfeited His Argument the People Improperly Commented on His Election Not to Testify; Failure to Object During Trial Was Not Prejudicial Ineffective Assistance of Counsel
a. The prosecutor’s closing argument
Anticipating the likely defense that Mesa’s thumbprint on the door handle of Aleman’s truck, by itself, was insufficient evidence to convict him of stealing the money and cashier’s check, the prosecutor told the jury in closing argument, “If we want to accept the principle that you can’t convict someone with their fingerprints on a car, then Officer Rendon was wasting his time. The police department is wasting their time providing these police officers] with fingerprint kits. . . . That’s going to be an argument. But, ladies and gentlemen, analyze that argument. We do believe in that. We do believe that it means something, because we want an explanation for why his fingerprint is on the car that the money was stolen out of at the
Asserting this portion of the prosecutor’s closing argument does more than merely describe the state of the evidence, Mesa contends that, by emphasizing he had not explained why his thumbprint was on Aleman’s truck or why he was acting suspiciously in the bank, the prosecutor improperly commented on his election not to testify in violation of his rights under the Fifth and Fourteenth Amendments to the United States Constitution. (See Griffin v. California (1965)
b. Mesa failed to object to the prosecutor’s comments and to request a curative admonition and has thereby forfeited any claim of Griffin error
Mesa’s trial counsel did not object to the prosecutor’s comments as Griffin error (or on any other grounds) and did not request the court admonish the jury Mesa had a right not to testify and the jury could not consider his assertion of that right as evidence of his guilt. That failure forfeits his claim of prosecutorial misconduct on appeal. (People v. Turner (2004)
A defendant cannot complain on appeal of error by a prosecutor unless he or she made an assignment of error on the same ground in a timely fashion in the trial court and requested the jury be admonished to disregard the impropriety. (People v. Jones (2003)
c. Mesa was not prejudiced by his counsel’s failure to object to the prosecutor’s comments
Recognizing the forfeiture problem, as an alternative to his claim of prosecutorial misconduct, Mesa urges us to hold his counsel’s failure to object to the prosecutor’s comments as Griffin error constituted ineffective assistance of counsel. To prevail on this claim, Mesa must establish his counsel’s representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel’s deficient performance, the result of the trial would have been different. (Strickland v. Washington (1984)
“ ‘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.’ [Citation.]” (People v. Karis (1988)
i. The Strickland “reasonable probability” standard
In considering a claim of ineffective assistance of counsel, it is not necessary to 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)
To be sure, had Mesa not forfeited his direct claim of Griffin error, we would review whether any such error was harmless under the standard set forth in Chapman v. California (1967)
As the United States Supreme Court explained in Kimmelman v. Morrison (1986)
The issue before the court in Kimmelman was whether the rule precluding federal habeas corpus review of Fourth Amendment claims applied equally to Sixth Amendment claims of ineffective assistance when defense counsel’s alleged error was the failure to file a potentially meritorious suppression motion challenging evidence allegedly seized in violation of the defendant’s Fourth Amendment rights. The Supreme Court held it did not. Addressing the state’s contention that authorizing federal habeas corpus relief in these circumstances would undermine the rule precluding state court defendants from litigating their Fourth Amendment claims in postconviction proceedings in federal court by permitting defense counsel to “consciously default or poorly litigate their clients’ Fourth Amendment claims in state court in the hope of gaining more favorable review of these claims in Sixth Amendment federal habeas proceedings” (Kimmelman, supra, 477 U.S. at p. 382, fn. 7), the Supreme Court expressly rejected the position suggested by Justice Johnson in his concurring opinion; “[W]hen an attorney chooses to default a Fourth Amendment claim, he also loses the opportunity to obtain direct review under the harmless-error standard of Chapman v. California,
ii. Mesa has failed to demonstrate prejudice
Even if the prosecutor’s argument constituted Griffin error and Mesa’s counsel had no valid tactical reason for failing to object and request an admonition,* **
Had the trial court sustained an objection to the prosecutor’s comments as Griffin error, it would have properly admonished the jury in similar terms, making it plain—as did CALJIC Nos. 2.60 and 2.61—both that Mesa’s silence could not substitute for the requirement the People prove his guilt beyond a reasonable doubt and that Mesa’s silence could not be used as evidence of guilt. Repeating those instructions may have had some marginal benefit to the defense. However, a review of the evidence of Mesa’s guilt, as well as the prosecutor’s entire closing argument to the jury and the limited extent of the alleged Griffin error itself, which did not involve any direct comment on the defendant’s failure to testify, let alone (as occurred in Griffin) the actual suggestion the jury could consider the defendant’s failure to testify in assessing his guilt (see People v. Vargas (1973)
In sum, on this record Mesa has failed to carry his burden to demonstrate prejudice as a result of the ineffective assistance of his counsel.
DISPOSITION
The judgment is affirmed.
Woods, J., concurred.
Notes
See footnote, ante, page 1000.
“It has long been established that ‘although Griffin prohibits reference to a defendant’s failure to take the stand in his own defense, that rule “does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses.” ’ [Citations.] Thus, *[a]s a general principle, prosecutors may allude to the defense’s failure to present exculpatory evidence’ [citation], and such commentary does not ordinarily violate Griffin or erroneously imply that the defendant bears a burden of proof [citations].” (People v. Lewis (2004)
The California Supreme Court similarly addressed the seeming anomaly in using the Strickland “reasonable probability” standard to evaluate ineffective assistance claims involving forfeiture of federal constitutional rights subject to the Chapman standard of prejudice on direct review: “[Strickland] was not concerned with establishing a test of prejudicial error, but with defining incompetency of counsel. It concluded that to prove incompetency, ‘[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ [Citation.] (We use an identical test for assessing incompetency of counsel. [Citation.])” (People v. Lucero (1988)
Although we need not decide the point, Mesa’s counsel may well have been concerned that an objection for Griffin error, even if sustained with an appropriate admonition, would have simply shifted the focus from Mesa’s failure to explain the presence of his thumbprint on the door handle of Aleman’s truck or his suspicious behavior in the bank to the lack of any reasonable, innocent explanation for the People’s incriminating evidence.
Concurrence Opinion
While I initially planned to dissent in this case, my colleagues’ opinion persuaded me the prevailing standard of review for claims involving ineffective assistance of counsel requires a “reasonable probability” of a different outcome, even when that ineffective assistance results in the deprivation of defendant’s federal constitutional rights. (Maj. opn., ante, at pp. 1008-1010.) I write separately, nonetheless, to register my concern this approach is not sufficiently protective of vital constitutional rights, such as a defendant’s Fifth Amendment right not to testify. In my view, when a lawyer’s ineffective assistance costs a defendant such a right only application of the Chapman standard
The threshold issue, in my view, is what would have happened if that objection had been made instead of omitted. If the answer is there is a reasonable doubt whether the outcome would have remained the same because the enforcement of the constitutional right would have made that degree of difference, then the logic behind Chapman suggests the conviction should be reversed. It seems contrary to the principle that federal constitutional rights warrant the higher standard of protection afforded by Chapman to do otherwise. It undermines enforcement of the federal constitutional right to say, no, despite the fact there is a “reasonable doubt” the conviction would have happened if the objection had been made we refuse to reverse because the defendant has failed to establish a “reasonable probability” a different outcome would have resulted had the objection been made.
On the other hand, under this more protective standard the converse would be true, too. If the appellate court applies Chapman and finds beyond a reasonable doubt an objection, if made, would not have made a difference, it necessarily follows the defense counsel’s failure to object to that constitutional error did not represent ineffective assistance of counsel—for the simple reason the lawyer’s mistake could not have affected the outcome.
It is revealing to note a recent death penalty case, People v. Huggins,
In Huggins, the constitutional right at stake was the defendant’s constitutional right to exclude statements he made during a psychiatric competency examination. His counsel failed to raise the constitutional ground (although he raised other grounds) when objecting to the use of a certain statement from the appellant’s competency interview during the prosecution’s cross-examination of the psychiatrist. The trial court rejected the other grounds the defense counsel asserted in support of his objection and permitted the prosecutor to bring out the content of the appellant’s statement.
As the majority does in this case, rather than determine whether the defense counsel was deficient in failing to register a constitutional ground for his objection, the Supreme Court in Huggins moved directly to the prejudice prong. After briefly rehearsing why the erroneously admitted statement was inconsequential compared to the other evidence relevant to the issue at hand, the court applied the Chapman standard to the defense counsel’s failure to properly object. “If defendant had preserved his Sixth Amendment claim for review [by lodging the objection on constitutional
What we do not know from Huggins, however, is what our Supreme Court would have done had it found a reasonable doubt whether the outcome would have been the same if the defense counsel indeed had lodged a proper objection to the constitutionally inadmissible evidence. Except for some of the prior opinions from both the California and United States Supreme Courts cited in the majority opinion,
I would like to think the fact the California Supreme Court followed the two-step process it did in reasoning through the “failure to object to federal constitutional error” issue in Huggins suggests it also would do so when the first step results in a finding of reasonable doubt whether the objection, if made, would have led to a different result. And furthermore, I would hope the latter finding would lead to the opposite conclusion in the second stage of the reasoning process than the one reached in Huggins. That is, because the defense counsel’s error allowed a federal constitutional error that, in turn, raised a reasonáble doubt about the outcome, it cannot be said the error was not prejudicial and thus reversal is required. To put it another way, this is not solely or even primarily a Sixth Amendment “ineffective assistance of counsel” violation to be tested under the standard of review applicable to that constitutional provision. No, in this case it is a Fifth Amendment violation combined with a Sixth Amendment violation—and more the former than the latter. As such the error should have to pass muster under both standards, not just the easier one, before being deemed harmless.
Unfortunately, there is little hope other than the California Supreme Court’s reasoning process in the Huggins opinion to suggest it will adopt the above analysis when the defense counsel’s failure to object to federal constitutional error raises a “reasonable doubt” about the trial’s outcome but not a “reasonable probability” of a different outcome. As well documented in the majority opinion the
A petition for a rehearing was denied November 28, 2006, and appellant’s petition for review by the Supreme Court was denied February 21, 2007, S148991.
Chapman v. California (1967)
Chapman v. California, supra,
People v. Huggins (2006)
People v. Huggins, supra, 38 Cal.4th at pages 247-248.
People v. Huggins, supra,
See, e.g., California Supreme Court decisions in People v. Ledesma (1987)
Strickland v. Washington (1984)
See, e.g., cases cited in footnote 6 above.