Opinion
C088684
06-30-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVID ALLEN WATSON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16FE019708)
A jury found defendant David Watson guilty of kidnapping and child abduction and found true the allegation he personally used a deadly and dangerous weapon, i.e., a knife, in committing the kidnapping. Defendant appeals, arguing: (1) the trial court's mistake of law instruction was contrary to law and violated his constitutional due process and jury trial rights; (2) his trial counsel rendered ineffective assistance by failing to request an instruction on the mistake of fact defense; and (3) the trial court erred in denying defendant's motion for a new trial. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We use the first names of witnesses and individuals herein for privacy reasons in accordance with California Rules of Court, rule 8.90. No disrespect is intended.
We set forth the pertinent trial testimony here and discuss the background relating to the new trial motion in the pertinent portion of the Discussion.
I
Prosecution's Case
Kenya's daughter, Christina, is the mother of defendant's son. When Christina was arrested for illegal manufacturing of methamphetamine for sale and felony child endangerment on September 27, 2016, her and defendant's son was placed with Shasta County Health and Human Services Agency -- Children's Services (Children's Services). The child was just over five months old.
All date references are to 2016 unless otherwise specified.
On September 28, defendant asked Kenya to pick up his son from Children's Services. He also advised Kenya about Christina's court hearing and said he would not be there because he was avoiding arrest. Kenya responded she would contact Children's Services and do what was needed. Defendant told her not to mention him to Children's Services or the police.
Kenya drove from Sacramento to Shasta County to get her grandson. Children's Services released the baby to Kenya on September 29. The Children's Services safety action plan provided Kenya agreed not to allow Christina or defendant to leave with the child, and "[t]he parents w[ould] not be allowed to have unsupervised visits with the child." It further provided Kenya agreed to apply for emergency guardianship within five business days and to "follow-up" with a petition for permanent guardianship.
Defendant spoke with a Children's Services social worker on October 4. He told the social worker it was wrong to keep his child from him; he sounded "spun" and under the influence of methamphetamine. The social worker told defendant the Children's Services would place the baby with a viable relative, if it was an option. Defendant responded, "wrong answer," and asked to speak to a supervisor. The supervisor reiterated what the social worker had told him. There was no dependency action filed in Shasta County because the safety action plan was in place. Thus, there were no orders from Shasta County Superior Court requiring defendant to have supervised visits with his son.
Kenya filed a petition for temporary guardianship, as required by the Children's Services safety action plan. On October 6, when defendant called Kenya, she told him a guardianship hearing would occur on October 7 in Sacramento County. Defendant responded he would not be there, stating "[h]e would not be set up to be arrested with a whole lot of F words." Kenya was granted temporary legal guardianship of her grandson on October 7.
On the declaration of notice of ex parte application, Kenya wrote she gave defendant notice on October 5. At trial, she explained she wrote down the wrong date; after she reviewed her phone records, she believed the correct date was October 6. The parties stipulated to a trial exhibit containing phone records. The records showed a phone number subscribed to by defendant called Kenya on October 6.
On October 10, Kenya sent defendant a text message stating: "I don't think I explained things well last night. I was half asleep. The state took him and has steps in place for you both to learn to better [sic] safe life for your son. Here [are] some ideas to prove to them you're ready to provide a safe home for him. One, attend [Narcotics Anonymous] meetings daily. Have an attendance form signed and date stamped. [¶] Two, contact Tracie [at Children's Services] and attend her suggested parenting classes. Three, together attend domestic violence classes at One Safe Place. Go to all court dates. Remove all drugs and persons who are on drugs from your lives. [¶] The state has another court date set for December 29th, 2016, to decide whether you both have made the required changes for him. Hopefully this helps you be successful. He deserves the best you both have to give."
Christina called Kenya to schedule a supervised visit with the child for October 12. Kenya did not know defendant would be joining Christina. Kenya asked her friend, Crissy, to assist her in the supervised visit. Christina and defendant arrived in the early evening. Defendant had bandages on his arms, from his thumbs to his elbows. Christina and defendant spent time with their child in the living room and talked to Kenya and Crissy about arranging regular supervised visits and what was needed to regain custody. Crissy testified defendant knew Kenya had custody and "understood that there was a process that needed to happen in order for him to gain custody."
At some point, Christina asked Kenya to step outside with her. Kenya complied and the two talked directly outside the front door. While Christina and Kenya were outside, defendant stood up from the couch, holding his son. Crissy asked him to sit down. Defendant responded, "this is my fucking baby," and walked out the front door. Crissy asked him to stop, but he did not comply. Kenya stepped in front of defendant to block his way and told him to put the baby down. Defendant said he was going to show the baby a dog they had in the car and "used his hip kind of like a basketball move" while "tuck[ing] the baby under his arm" to get around her. Defendant walked down the driveway toward the car. He pulled out a knife approximately nine or 12 inches in length, swung it around, and pointed it at Kenya and Crissy.
Defendant got into the driver's side of the car with the baby and, after directing the dog to get into the backseat, Christina got in on the passenger's side. Kenya initially held on to the driver's side door but let go when defendant reversed at a fast speed. Kenya immediately called 911; the transcript of the call was played for the jury.
After police officers arrived at Kenya's house, Christina called her mother. Kenya put the phone call on speaker phone, allowing the police officers to listen to the conversation. One of those police officers testified he heard the entire conversation over the phone and heard both a male and female voice on the other end of the line. He said another officer told Christina and defendant to return the baby to Kenya's residence. A male voice responded the child was his legally "and it didn't matter what a [j]udge said." The officer replied Kenya had legal custody of the child; the call then abruptly disconnected.
II
Defense's Case
Defendant testified on his own behalf and introduced the testimony of his friend, Kim, as well. Defendant lived in Kim's home with the baby for approximately two-and-one-half to three weeks after taking him from Kenya's home; he was arrested there. Defendant's and Kim's testimony established the following version of events.
Defendant was in a motorcycle accident on September 28 or 29, a day or two after Christina was arrested. Defendant believed he was in a coma for eight days; Kim said he was in a coma during several of her hospital visits. Defendant sustained two broken arms -- one of his arms was in a hard cast and the other in a soft cast. He was therefore unable to manipulate his hands.
After defendant was discharged from the hospital, he and Kim went to Shasta County Superior Court "to get custody of [the baby]." Defendant asked the court clerk whether there were any active cases pertaining to his son in Shasta County; the clerk said no. Kim asked the clerk for paperwork to file for custody, but the clerk told her she could not have the paperwork until defendant had his child in his custody. Kim then called a local attorney and, based on that conversation, told defendant "there was no reason he could not get his son as long as there w[ere] no open cases."
Defendant and Christina drove from Redding to Sacramento to get the baby; defendant was driving with his legs and arms on the steering wheel, using his thumbs to steer. He did not have a knife with him. Defendant was happy to see his son and played with him on the couch. When Kenya mentioned the baby had a doctor's appointment the following Wednesday, defendant told Christina to tell Kenya that he (defendant) intended to leave with his child. Christina asked her mother to step outside. Defendant stood up from the couch holding his son; he wanted to show his son the dog in the car. Crissy told him to sit down and he responded "F-U, this is my son, I'm taking him." He then walked out the door sideways, squeezing by Kenya and Christina because they were standing by the door. Kenya told defendant not to take his son and Crissy and Kenya tried to prevent him from leaving, but he walked by them. Defendant denied having a knife, explaining it was physically impossible to pull a knife because he was holding his son and had a cast on. He recalled either Kenya or Crissy holding on to his car door, but he "jerked the door shut and backed up and left" after Christina got in the car.
Defendant next stopped at a friend's house to borrow a car seat for his son. He received a call from a police officer, who told him to take the child back to Kenya's house. Defendant responded, "no, my son, and no [j]udge is going to tell me to do that." He clarified he was referring to "a [j]udge saying something in the future." They drove to Redding, where he dropped Christina off approximately a block from her house because he believed police officers would be waiting at the house to take him into custody. Defense counsel asked: "Why at this point in time wouldn't you want to see the police and say look, I'm the father, I have custody of this kid?" Defendant responded: "Because when he called me, bring the baby back, he was wanting the baby, and I didn't want to give my baby up, you know. [¶] . . . [¶] I just didn't want to have to go through that. I figured I had my baby, I wasn't giving him up."
Defendant denied having been served with any paperwork relating to his son prior to his arrest in this case, having been told by Kenya there was going to be a guardianship hearing in Sacramento County, knowing about the Children's Services safety action plan Kenya agreed to follow, and knowing about the custody order filed in Sacramento County.
On cross-examination, defendant acknowledged he knew Children's Services had taken his child when Christina was arrested, and he had asked Kenya to go to Children's Services to get the baby. He confirmed his injuries from the motorcycle accident were actually left wrist and right thumb fractures. The prosecution introduced some of defendant's medical records pertaining to his motorcycle accident. Defendant said he had not seen the records prior to his testimony.
The medical records showed there was no evidence of a head injury and contained no mention of a coma; defendant discharged himself from the hospital on October 1, two days after the accident. The records further showed he arrived back at the hospital on October 2 via ambulance and was discharged the same day. Defendant said he could not recall discharging himself on October 1, or the circumstances relating to his admission and discharge on October 2. The medical records also showed he was admitted and discharged in the emergency department on October 10 for bilateral wrist pain. Defendant said he could not recall going to the hospital on October 10, but did recall going to the hospital at some point to get a new brace put on his hand.
Defendant recalled speaking to the Children's Services social worker but did not recall the date was October 4. He further said he did not recall speaking with Kenya on October 6 because he did not "remember a lot"; however, he was confident Kenya did not give him notice of the guardianship hearing because he would have remembered it. He further acknowledged he might have used methamphetamine but said he did not abuse it. He believed he was in a coma based on what others had told him.
Kim acknowledged she had previously been convicted of crimes; the prosecution outlined several prior convictions. On cross-examination, Kim said "[y]es," when asked: "And you had told [defendant] that his son belonged to the county or the state until he got legal full custody papers and [he] needed to do it in the right way, correct?" The prosecutor also asked Kim whether she had told defendant to pretend to be in love with Christina and act "lovey-dovey" toward her to dissuade Christina from testifying against him. Kim said she did not. The prosecution then showed Kim two transcripts of telephone calls between herself and defendant when defendant was in jail. In the two calls, defendant expressed his concern that Christina would testify against him and Kim encouraged him to act "lovey-dovey" to discourage her from doing so. Kim denied that she helped create a plan to manipulate Christina and said defendant could have told her he needed to pretend to love Christina to dissuade her from testifying, but she could not recall.
Defendant said he mistrusted Christina and did not "want her to make [him] look bad." He explained: "I didn't want her to get me in trouble being mad about me getting the kid. Because now my thing was she is -- couldn't have the kid for four years, so I figured I would get out of jail and I didn't have to worry about her and her mom taking my son." Defendant acknowledged he had several prior convictions for drugs, firearms, burglary, and assault with a firearm.
DISCUSSION
I
Mistake Of Law
"Mistake of law is a defense where the mistake negates the specific intent required for the crime." (People v. Flora (1991) 228 Cal.App.3d 662, 669.) "[A] mistake of law instruction is only appropriate where the evidence supports a reasonable inference that the claimed mistake was held in good faith." (Ibid.) " 'Whether a claim is advanced in good faith does not depend solely upon whether the claimant believes he was acting lawfully; the circumstances must be indicative of good faith.' [Citations.] For example, the circumstances in a particular case might indicate that although defendant may have 'believed' he acted lawfully, he was aware of contrary facts which rendered such a belief wholly unreasonable, and hence in bad faith." (People v. Stewart (1976) 16 Cal.3d 133, 140.)
A
Background
Before defendant put on his case, the trial court summarized for the record an in chambers discussion with counsel regarding an instructional issue pertinent to the mistake of law defense. The trial court said, if it found the evidence sufficient to give the mistake of law instruction, it would likely instruct the jury that defendant could not claim mistake of law if "the jury found that the taking was by force, violence, fear, duress, menace, any of those things, as described by the [prosecution's] witnesses in this case." The trial court explained the pinpoint instruction would be appropriate in light of Flora, a case identified "in the use notes in the CALCRIM," in which the Court of Appeal found the good faith requirement "negated by both a taking by force and a concealment from both law enforcement and rightful guardians." (Citing People v. Flora, supra, 228 Cal.App.3d at p. 662.)
Before instructing the jury, the trial court again raised the issue with counsel. The trial court explained it added a paragraph to the pattern jury instruction stating, "if you find the taking of the child in this case was accomplished by force or fear, the defense of mistake[] of law is not available to the defendant," referring counsel to Flora. The court explained it read Flora to say "that when a child abduction is conducted with force and thereafter flight and concealment, that the claim in good faith . . . is basically not available" because the conduct does not comport with a reasonable good faith belief. Counsel agreed to the court's proposed addition; and the court instructed the jury accordingly.
In Flora, the defendant was found guilty of felony violation of a child custody order. (People v. Flora, supra, 228 Cal.App.3d at p. 664.) Briefly stated, the pertinent facts were that the defendant knew his wife was granted temporary custody of their child by a Washington court, kidnapped the child in California by shoving his wife aside and driving off in her car with the child in the passenger seat, took the child to Costa Rica, and threatened to kill his wife and preclude her from seeing the child if she did not adhere to his demands. (Id. at pp. 664-666.) On appeal, the defendant argued, among other things, that the trial court erred in refusing to instruct the jury on mistake of law as a defense. (Id. at p. 669.) The defendant claimed his mistake arose from erroneous advice he received from counsel that the Washington order was invalid and unenforceable in California. (Id. at pp. 669-670.)
The Court of Appeal disagreed, explaining: "Here, appellant's conduct does not comport with his claim of good faith. The manner in which appellant forcibly took [his son], detained him, and concealed him from [his mother] and the law belies his protestation of good faith. If appellant truly believed that the Washington order was invalid and not enforceable in California, he would not have acted as he did: hide from [his wife] and the law, even flee the country. In acting like the fugitive that he was, appellant only succeeded in demonstrating his consciousness of guilt. As the court in Stewart said: ' "Whether a claim is advanced in good faith does not depend solely upon whether the claimant believes he was acting lawfully; the circumstances must be indicative of good faith." ' " (People v. Flora, supra, 228 Cal.App.3d at pp. 669-670, quoting People v. Stewart, supra, 16 Cal.3d at p. 140.)
B
People v. Flora -- A Good Faith Belief
Defendant argues the language added to the mistake of law pattern instruction deprived him of his due process and jury trial rights because it was for the jury to determine whether, under all of the relevant facts and circumstances, defendant lacked the specific intent to violate the law. He argues Flora has not been followed with regard to the good faith analysis and, in any event, the case is distinguishable because "the court applied a harmless error review standard to reject the claim of error without addressing whether the defendant's affirmative evidence, if believed, would have been sufficient to warrant the instruction." He further asserts the error was prejudicial and must be reviewed under the federal harmlessness standard set forth in Chapman. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711] ["before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt"].)
The People disagree, arguing the instructional error claim has been forfeited for failure to object at trial, the instruction was correct and appropriate, and, even if the instruction was erroneous, the error was harmless when applying the state harmlessness standard set forth in Watson, which they contend is the appropriate standard. (People v. Watson (1956) 46 Cal.2d 818, 836 ["a 'miscarriage of justice' should be declared only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error"].)
The People also state "it is arguable that the trial court should not have instructed the jury on the mistake of law defense at all."
As the People note, "[a] trial court has no sua sponte duty to revise or improve upon an accurate statement of law without a request from counsel [citation], and failure to request clarification of an otherwise correct instruction forfeits the claim of error for purposes of appeal [citation]." (People v. Lee (2011) 51 Cal.4th 620, 638.) "But that rule does not apply when . . . the trial court gives an instruction that is an incorrect statement of the law," as defendant asserts here. (People v. Hudson (2006) 38 Cal.4th 1002, 1012.) We, accordingly, consider the merits of defendant's challenge.
We do not read Flora to mean that the use of force or fear precludes a mistake of law defense as a matter of law in every case. That said, there is certainly logic to the idea that the strong public policy considerations disfavoring self-help through force or fear should prelude application of a good faith defense like mistake of law where the risk of harm to a child is substantial, as here. (See People v. Richards (2017) 18 Cal.App.5th 549, 564 ["The defense of mistake of fact is not appropriate where its recognition would excuse behavior that violates a strong public policy"]; Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1137 ["Our legal system is based on the idea that it is better for citizens to resolve their differences in court than to resort to self-help or force"]; People v. Tufunga (1999) 21 Cal.4th 935, 953, 955 ["The legitimacy of the need for our laws to discourage forcible or violent self-help as a remedy seems beyond question" and "strong public policy militat[es] against self-help by force or fear"].) Yet, a good faith defense has been deemed appropriate in some circumstances where force was used as a self-help remedy. (See, e.g., Tufunga, at p. 956 ["if the jury, properly instructed, believed defendant's testimony, then . . . defendant's actions in seeking to recover from the victim, albeit with force, what he believed in good faith was his specific property, no matter how reprehensible and otherwise unlawful those actions may have been, did not constitute a felonious taking necessary for conviction of robbery"].)
We need not consider whether the instruction given was a correct statement of law because, even if the instruction was erroneous, defendant cannot show prejudice under Watson or Chapman. There was considerable evidence defendant knew he did not have a right to custody of his son when he took him: (1) he knew his child was taken by Children's Services; he told the Children's Services social worker it was wrong to keep his child from him; (3) Kenya testified she gave defendant notice of the temporary guardianship hearing and her phone records confirmed the call; (4) Kenya's subsequent text message to defendant confirmed there were steps he needed to take to regain custody of his son; (5) Crissy testified defendant knew Kenya had custody and there was a process to regaining custody; and (6) defendant went to Kenya's house armed with a knife.
More significantly, however, the outcome in this case would have been no different if the jury believed defendant's and Kim's testimony because their testimony did not establish that defendant maintained a good faith belief that he had a right to custody of his child during the commission of the crimes.
Defendant's mistake of law defense was premised on his asserted belief that he had equal legal right to custody of his son. The first of the crimes of which he was convicted -- kidnapping -- is, however, a continuing offense. (People v. Barnett (1998) 17 Cal.4th 1044, 1159 ["the crime of kidnapping continues until such time as the kidnapper releases or otherwise disposes of the victim and has reached a place of temporary safety"].) It was undisputed a police officer spoke with defendant shortly after the kidnapping and advised him that Kenya had legal custody of the child and he needed to return the child to her. Defendant responded, "it didn't matter what a [j]udge said." Thus, even if defendant initially had a good faith belief he was entitled to take custody of his son, no reasonable jury could conclude that he continued to maintain that belief in good faith after the conversation with the officer while he continued driving to Redding with his son. Defendant was on notice his conduct was potentially illegal, yet he did nothing to remedy the situation. He, instead, dropped Christina off approximately a block from her house because he believed the police would be waiting there for him and then affirmatively hid from the police, demonstrating a consciousness of guilt and absence of a good faith belief in his right to custody. He "figured [he] had [his] baby [and he] wasn't giving him up." These circumstances render any claimed mistake in good faith unreasonable. (See People v. Stewart, supra, 16 Cal.3d at p. 140 ["the circumstances in a particular case might indicate that although defendant may have 'believed' he acted lawfully, he was aware of contrary facts which rendered such a belief wholly unreasonable, and hence in bad faith"].)
The second crime of which defendant was convicted, child abduction, provides it is a crime for a person without a right of custody to maliciously take, or keep, or withhold, or conceal a child from his or her lawful custodian. Even if the jury believed defendant took the child under a mistake of law, no reasonable jury could conclude he kept, withheld, and concealed the child with a good faith belief because defendant kept, withheld, and concealed his son from his lawful custodian, Kenya, after a police officer told him Kenya was his son's legal custodian.
For the foregoing reasons, even if the mistake of law instruction was erroneous, the error was harmless beyond a reasonable doubt.
II
Mistake Of Fact
" ' "A mistake of fact" is where a person understands the facts to be other than they are; whereas a "mistake of law" is where a person knows the facts as they really are, but has a mistaken belief as to the legal consequences of those facts.' " (People v. La Marr (1942) 20 Cal.2d 705, 710.) A mistake of fact requires "an honest and reasonable belief in the existence of circumstances, which, if true, would make the act with which the person is charged an innocent act." (People v. Russell (2006) 144 Cal.App.4th 1415, 1425.) "A person who commits an act or makes an omission under a mistake of fact which disproves his or her criminal intent, is excluded from the class of persons who are capable of committing crimes." (Ibid.)
Defendant argues his trial counsel was ineffective for failing to request an instruction on the mistake of fact defense because it was more favorable to him than the mistake of law defense. He asserts precedent establishes the specific intent required for kidnapping and child abduction is "negated in the absence of a court order or decree affecting custody, and such absence is an absolute defense to the offenses." (Citing Cline v. Superior Court (1982) 135 Cal.App.3d 943, 947 [a parent does not commit child abduction by taking exclusive possession of his or her child absent a court order or decree affecting custody].) He asserts his mistake of fact as to the existence of a lawful custody order thus negates the specific intent required for kidnapping and child abduction.
Respondent asserts trial counsel was not ineffective because: (1) Flora established the type of mistaken belief at issue was a mistake of law; (2) "trial counsel could have reasonably determined that a mistake of fact instruction would not affect the trial any differently than the mistake of law instruction"; and (3) defendant cannot establish he was prejudiced by any failure to give the instruction.
To prevail on a claim of ineffective assistance of counsel, defendant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 698].) We presume " 'counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel.' " (People v. Carter (2005) 36 Cal.4th 1114, 1189.) If the appellate record " 'sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation.' " (Ibid.) "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." (Strickland, at p. 697 .)
We dispose of this argument on the ground of lack of prejudice. As explained ante with regard to the mistake of law instruction, there is no reasonable probability the result would have been different if defense counsel had requested a mistake of fact instruction. Even if the jury believed defendant had a good faith belief that he had a right to custody of his son, the evidence showed defendant could not reasonably have maintained such a belief during the commission of the crimes. Thus, we find no merit in defendant's ineffective assistance of counsel argument.
III
New Trial Motion
Defendant argues the trial court erred in denying his motion for a new trial because it "failed to seek a response from defense counsel as to whether any of the alleged omissions [of former counsel] were supported by reasonable tactical considerations" and his counsel was ineffective for failing to ensure complete and correct mistake of law and mistake of fact jury instructions. We address only the first contention given our disposition ante regarding the second contention. A trial court's ruling on a motion for new trial is reviewed for abuse of discretion. (People v. Clair (1992) 2 Cal.4th 629, 667.)
During the hearing for judgment and sentencing, defendant told the court he wanted to discharge his retained attorney; the judge told defendant he was free to do so and appointed a public defender to represent him. The public defender filed a motion for new trial, arguing: (1) the trial court erred in failing to give the mistake of fact instruction sua sponte; (2) the trial court erred in improperly limiting the mistake of law instruction; (3) defendant's trial counsel was ineffective for failing to seek the mistake of fact instruction and objecting to the mistake of law instruction; (4) defendant's trial counsel was ineffective for not investigating the case by interviewing witnesses and not presenting a critical, favorable, percipient witness; and (5) defendant's trial counsel was ineffective for failing to file a single motion in limine and address several prejudicial evidentiary issues prior to litigation. The trial court denied the motion.
As to the jury instruction arguments, the trial court explained the mistake of law and mistake of fact instructions required defendant to hold the mistaken belief in good faith and the evidence showed otherwise. In the court's view, any instructional error was harmless beyond a reasonable doubt.
As to the ineffective assistance of counsel argument relating to the failure to present a favorable witness, the trial judge said: "Let me quickly hurry to your claim that Pam C[.] should have testified. You claimed that this witness was important because she, a witness who, as I understand it, is elderly with a very poor memory and very poor eyesight, viewed this incident from a rear view mirror while sitting in the car. [¶] According to the People's offer of proof, there is a text message sent by this witness on the night of the event wherein that witness claims that the defendant pulled out a knife. [¶] Now, that's my understanding, and maybe that's not accurate, but it would make perfect sense that a defense lawyer would not call a witness who sent a text message on the night of the event claiming that the defendant pulled out a knife. [¶] Now, you claim that your investigator subsequently went and she said oh, I didn't see anything. I don't know what I saw, certainly wasn't a knife, no violence, no incident. That's fine, but apparently that witness could have easily been impeached with that text message not to mention by everybody's account her vantage point was poor and her memory is weak. [¶] So it makes -- whether or not in hindsight you might say well, looking at how the thing turned out as he was convicted, boy, I sure would have called this witness. Well, that is great, that is excellent hindsight knowing what happened, but from the point of view of those facts, a decision not to call a witness like Pam C[.] who had a poor view of the events and could be impeached with a prior inconsistent statement about a knife does not seem to be ineffective to me at all."
As to the drug references, the trial judge said: "There was talk of this allegation of a coma. I don't remember how that played out in trial, but it seems to me that the drug references were relevant, highly probative, and important for the jury to understand what the defendant's claim was with regard to his state of mind on the date of the event when he was claiming he made the claims that he made and that needed to be supplemented with information regarding his drug use which I think the People properly asked him about on that day. [¶] So, in my view, there was no nothing which would have suggested ineffective assistance of counsel in that regard. [¶] Furthermore, the claim that somehow that hospital records regarding the defendant's drug use back several years would have somehow prejudiced this jury who heard evidence that this man came by way of a request to just come and visit the child with two absolutely reasonable people, not only the mother-in-law, as I recall, but the friend of the mother-in-law who said that as we are sitting ever so nicely discussing the child, the next thing we knew, we were outside with a knife staring at us and threats with the crying baby being snatched and hauled away, anybody that suggests that somehow that the jury would have not really believed that, but oh, once they heard the word methamphetamine in a drug record, that's what did it, that turned the trick. That methamphetamine, that whole hospital thing, his drug activity had nothing, absolutely nothing to do with the gravamen of this case and the salient facts of how the jury would have reacted to this man's conduct on the day in question."
Finally, the judge addressed defendant's argument that his "criminal history was mentioned prejudicially and improperly." The judge explained: "I don't believe that's accurate either. The defendant testified, the jury was apprised of a portion of his history which I have done previous to his testimony. I did an independent analysis of what priors could be used and how he could be impeached, and the impeachment was appropriate."
Defendant asserts the trial court erred in "fail[ing] to seek a response from [trial] defense counsel as to whether any of the alleged omissions were supported by reasonable tactical considerations." He argues, "[s]imilar to a Marsden motion, the trial court is obligated to seek counsel's explanation" when a defendant requests a new trial due to ineffective assistance of counsel. In his view, "[r]egardless of the state of the record in terms of the potential outcome of the issue on appeal, the trial court is obligated to conduct an adequate inquiry . . . as to the basis for a motion for new trial involving ineffective assistance of counsel in order to satisfy its duty of ensuring constitutionally protected representation." He cites two cases for this proposition: People v. Smith (1993) 6 Cal.4th 684, 693-694 and People v. Stewart (1985) 171 Cal.App.3d 38.
People v. Marsden (1970) 2 Cal.3d 118. --------
At bottom, defendant argues the trial court has a duty to investigate the adequacy of prior counsel's representation when a defendant's new counsel raises "serious and substantial questions as to ineffective assistance of counsel" in a motion for new trial. In his reply brief, defendant acknowledges neither Smith nor Stewart stands for this proposition and there is no authority imposing such a duty on the trial court; he, however, invites us to create one. We decline to do so.
Defendant does not raise any argument that the trial court abused its discretion in denying the new trial motion. The judge who presided over the new trial motion was the same judge who presided over the trial. The judge was familiar with the issues raised and detailed his reasons for denying the motion on each of the grounds asserted. There was no abuse of discretion.
DISPOSITION
The judgment is affirmed.
/s/_________
Robie Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Krause, J.