Opinion
C051629
5-11-2007
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL AARON WITKIN, Defendant and Appellant.
NOT TO BE PUBLISHED
A jury convicted defendant Michael Aaron Witkin of resisting an executive officer by use of force and violence (Pen. Code, § 69; undesignated section references are to the Penal Code) and battery on a peace officer, a misdemeanor (§ 243, subd. (b)).
Sentenced to state prison, defendant appeals. He contends (1) the trial court erroneously denied his motion for a new trial sought on the ground of ineffective assistance of counsel in that he failed to request a continuance and (2) trial counsel rendered ineffective assistance in that he promised in opening statement to introduce certain evidence but failed to do so. We will affirm.
FACTS
About 4:00 a.m. on August 21, 2004, Sacramento County Deputy Sheriff Robert Barnes waited in his Elk Grove police patrol car at a red light and saw a Cadillac speed by at 80 miles per hour. Deputy Barnes followed the car which continued at a high rate of speed. The car made a rapid lane change from the far right lane to the far left lane and then turned left. After making another turn, the car swerved across the road and stopped with half the car in a driveway and the other half across the sidewalk. Deputy Barnes called dispatch. Defendant, the driver of the car, jumped out of the car. From 30 feet away, Deputy Barnes yelled, "Stop, police. Come here." Defendant looked at the officer and then ran towards a residence. At the door, defendant stood with his back to the officer who was in pursuit. The deputy yelled at defendant to stop. The deputy could not see defendants hands. With a flashlight in his hand, the deputy grabbed defendant. The door opened and the two fell inside, onto the entryway. During a struggle on the floor, Deputy Barnes felt defendant pulling on the deputys radio and gun. Defendant then grabbed something off the floor and headed to the door. Deputy Barnes pulled defendants shirt and the two struggled through the front door to the lawn. Defendant got away and ran to his car, looking at the deputy. The deputy could not see defendants hands which were near his waistband. Believing defendant was reaching for a weapon, Deputy Barnes pulled out his gun and shot five times at defendant who ran away.
Defendants brother called 911 to say that defendant had reentered the residence where he had struggled with Deputy Barnes. Defendant lived there. Other officers arrived. About two hours later when defendant surrendered, defendant kept his hands in front of him, not visible to the officers, shouted expletives, stared at the officers and demanded to know who shot him. At the hospital, defendant was treated for bullet wounds to his chest and hip.
Inside defendants residence, officers found Deputy Barness flashlight, a mini audio recorder and handcuff keys.
DISCUSSION
I
Defendant first contends that the trial court erroneously denied his motion for a new trial. With new counsel, Victor Haltom, defendant sought a new trial on the basis of ineffective assistance of trial counsel, Jeff Kravitz. Defendant cited various failures of Kravitz including his failure to seek a continuance based on the unavailability of a defense expert, Larry McCormick. Without specifically referring to the particular failures raised by defendant, the trial court denied the new trial motion, finding neither deficiency on Kravitzs part nor prejudice to defendant. On appeal, defendant argues the trial court erred in denying the motion, focusing on the failure of Kravitz to seek a continuance. We find no error.
Background
In limine, Kravitz sought to exclude lay opinion evidence on whether Officer Barnes used excessive force since no other officer observed either the incident at the door or the shooting. Kravitz noted that the prosecution had not listed any of the officers as an expert. Kravitz also stated, "At one point we did have somebody listed as an expert, but Im not planning on calling him." Because he planned not to elicit defense expert testimony on excessive force, Kravitz argued the issue of excessive force was one for the jury to decide. The court confirmed that the prosecution did not intend to present an expert on excessive force. The court granted Kravitzs motion to exclude lay opinion on excessive force.
In supplemental points and authorities in support of his motion for a new trial, defendant argued that Kravitz rendered ineffective assistance in failing to request a continuance when Larry McCormick "became unavailable on the eve[] of trial." Defendant obtained Kravitzs statement and attached a summary to the supplemental points and authorities. With respect to McCormick, the summary reflects the following:
"Kravitz indicated that his retained expert witness, Larry McCormick (`McCormick), abandoned him on the eve of trial. Kravitz expressed anger regarding McCormicks abandonment of him. He recalled that McCormick had done investigation, for which he did not produce any reports. He added that McCormick had videotaped the alleged route that the officer drove on his way to [defendants] residence, which he also did not obtain from McCormick, but wished he had, as he was of the opinion that the videotape would have presented a perspective of the case to the jurors that they did not receive. Finally, Kravitz intended to use McCormick as a certified expert with regard to ballistics and excessive force by a police officer. McCormick had been a member of the defense team in this case from the outset. He sat through the preliminary hearing. Several weeks before trial Kravitz learned that McCormick had moved to Colorado and joined a professional bull-riding association. Despite being in Colorado, McCormick indicated to Kravitz that he would be available to come to testify in [defendants] trial. However, as the time for the trial drew very near, and Kravitz communicated with McCormick regarding the logistics involved in McCormick coming out to Sacramento, McCormick stated to Kravitz that he felt as though Officer Barnes may have acted within the scope of an officers reasonable judgment in connection with the incident involving [defendant]. This was the first time that McCormick had said anything like this to Kravitz. This came as very much of a surprise to Kravitz, as McCormick had been the retained expert on the case from the outset, knew the facts and issues in the case, and had never said anything like this. Indeed, Kravitz had hired him to demonstrate just the opposite. When we asked Kravitz if he suspected that this was a ploy on McCormicks part in order to get out of having to come out from Colorado to testify in this case, McCormick [sic] responded in the affirmative."
At the hearing on defendants new trial motion, Kravitz testified. Kravitz had a previous relationship with defendants family and was called the day defendant was shot. Kravitz represented defendant in his civil lawsuit alleging a tort claim and a violation of his civil rights as well as in the criminal proceedings. With respect to McCormick, Kravitz explained that he obtained McCormicks curriculum vitae which reflected he had been in the military, had been a sheriffs deputy in another county and had testified as an expert witness on the use of force and police shootings. Kravitz received favorable recommendations about McCormick from well-qualified attorneys in Sacramento and advised defendant and his family that if they liked McCormick they should retain him. The family gave McCormick a deposit. Kravitz claimed that McCormick met with defendants family and told them "this was the most egregious case he had ever seen in his life, that the police behavior was unbelievable[, that h]e was absolutely shocked at the behavior of Officer Barnes on that night and, [ ] was going to testify wonderfully on the issues we wanted him to testify about." McCormick was retained to be the defense investigator and defense expert on use of force and police shootings. Kravitz was under the impression that McCormick had interviewed witnesses. When Kravitz needed a declaration for a Pitchess motion, he called McCormick and learned that he had moved to Colorado. This occurred about two months before trial. Kravitz contacted defendants family who had given McCormick a deposit. Kravitz then learned from defendants family that McCormick would be available for trial. Kravitz also claimed that McCormick repeatedly assured him (Kravitz) that he (McCormick) would be at the trial. But Kravitz searched for another expert on the use of force, noting, "there really arent that many potential experts on use of force, actually [] [a]nd certainly that arent in this area who are readily available . . . ." About 10 days before trial, Kravitz talked to McCormick who claimed he could not make it and suggested another expert. Kravitz spoke to the other expert who stated that he could "only really talk about the shooting" and did not know whether he could "talk about anything that happened at the door." Either before or after talking to the other expert, Kravitz talked to McCormick who stated the same thing. Kravitz was "furious" and thought McCormick was a "jerk." Kravitz more recently thought that McCormick did not want to return to Sacramento. Kravitz did not seek a continuance because the prosecutor had not listed an expert on the use of force and Kravitz believed the court would not consider McCormick unavailable since the case had been continued many times; Kravitz did not have McCormick under subpoena because McCormick was going to be the one to serve the subpoenas; and McCormick was a retained expert who is supposed to show up when told. Kravitz believed that had McCormick testified, the jury would have concluded that Officer Barnes used excessive force in assaulting defendant at the front door of his own home for speeding. After he cross-examined Officer Barnes at trial, Kravitz believed he did not need to call anyone to testify and had in fact made an oral motion under section 1118.1. However, if McCormick had been available, Kravitz would have called him to testify. Kravitz believed he needed an expert on the use of force the day of the shooting. Kravitz proceeded to trial without one partly because the prosecutor did not have one and partly because McCormick was unavailable. Kravitz had talked to one other expert and had asked other attorneys about potential experts but it was very short notice.
The trial court denied the new trial motion finding that Kravitz "acted completely in the clients interest," that Kravitzs performance did not fall below that expected of a reasonably competent attorney, and even assuming counsels performance was deficient, defendant had not shown prejudice.
Analysis
Ineffective assistance of counsel is a nonstatutory ground for a new trial motion. (People v. Fosselman (1983) 33 Cal.3d 572, 582-583.) A two-step process similar to that used in reviewing a trial courts ruling on a suppression motion applies to such motions. (People v. Taylor (1984) 162 Cal.App.3d 720, 724 (Taylor).)
First, the trial court finds the relevant facts. "On appeal, all presumptions favor the trial courts exercise of its power to judge the credibility of witnesses, resolve any conflicts in testimony, weigh the evidence, and draw factual inferences." (Taylor, supra, 162 Cal.App.3d at p. 724.) "The trial courts factual findings, express or implied, will be upheld if they are supported by substantial evidence. [Citation.]" (Ibid.)
Second, the trial court determines whether defendant has established ineffective assistance of counsel, that is, whether defendant has demonstrated that counsels performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 691-693, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218; Taylor, supra, 162 Cal.App.3d at pp. 724-725) As to questions of law, the appellate court is not bound by the substantial evidence rule; instead, it exercises its independent judgment. (Taylor, supra, at p. 725.)
The trial court concluded that Kravitzs performance was not deficient and, in any event, defendant suffered no prejudice. We agree. Kravitz made a strategic determination to proceed to trial and not to request a continuance. Since the prosecutor chose not to use an expert, it was simply a jury determination whether the force used by the officer was reasonable or excessive. Kravitz testified that McCormick stated belatedly that he would not be able to testify about the force used at the door. Kravitz spoke to another expert who stated the same thing. The summary of Kravitzs statement attached to defendants supplemental points and authorities reflects Kravitz stated that McCormick "felt as though Officer Barnes may have acted within the scope of an officers reasonable judgment in connection with the incident involving [defendant]." Kravitz certainly would not have wanted a continuance to have McCormick come to trial and say that. Defendant thus failed to demonstrate prejudice.
II
Defendant next contends that Kravitz rendered ineffective assistance when he promised in opening statement to present evidence that defendant parked his car the same way all the time, that is, the car straddled the sidewalk and stuck out into the street, and then failed to elicit such testimony on cross-examination of prosecution witnesses or to call any defense witnesses to so testify. Defendant claims that Kravitz failed to call defendants neighbors Ana Leon, Ron Delizo and Victor Camacho. Defendant made the same argument in his motion for a new trial and it was rejected by the trial court. We reject it as well.
Background
Kravitz made his opening statement prior to the prosecutors case-in-chief and stated in part: "[Defendant] then pulled into the driveway of his own home in a manner that youll hear witnesses tell you he does all the time. Maybe he shouldnt drive that way, but youll hear witnesses tell you he does it all the time."
In his new trial motion, defendant represented that Leon would have testified that defendant parks at his home in the same manner in which he parked on the day of the incident. She had spoken with Kravitz, expected to testify, but was never called to do so. Defendant represented that Delizo would have testified that defendant typically parked on the right side of the driveway, sometimes diagonally, and the car protruded in the street. He was available but was not called to testify. Defendant represented that Camacho, a neighbor, would have testified that defendant typically parked diagonally in his driveway. Camacho claimed he was never contacted by Kravitz or his representative.
In opposing the new trial motion, the prosecutor argued that defendant had failed to demonstrate deficient performance or prejudice because an opening statement is simply a summary, that evidence of defendants manner of parking cut both ways in that the prosecutor could ask witnesses about defendants driving habits, and that defendants manner of parking was collateral and unlikely to change the outcome of the case.
Kravitz testified at the hearing on the new trial motion that "in 20/20 hindsight I wouldnt have made that statement [about presenting evidence of defendants parking habits]."
With respect to Ana Leon, the mother of defendants brothers child who lived in defendants residence, Kravitz testified that Leons testimony that defendant parked the way he did all the time "would open the door which the officer would say, well, he frequently violates the law, he frequently drives fast around the neighborhood, hes a guy that likes to get into trouble, likes to show off in his car, so on and so forth and it could be a door I couldnt close if I opened it. At that point all of that had been closed, everything about [defendants] character that in any way could make the jury think that he had done anything wrong on that night."
Kravitz noted that defendant had prior convictions, including one for evading that had been excluded by the trial court in in limine motions. Kravitz decided that at the close of the prosecutors case, the jury would only know that defendant had driven a "little bit fast and pulled into his driveway at an angle and then was shot by a police officer."
Kravitz testified that Delizo had stated that he was "completely unaware of anything going on until he heard the shots" and had told the police officer he had been sleeping but later denied he had told the officers that. Kravitz represented Delizo in his lawsuit against the sheriffs department for the damage caused to Delizos house caused by Officer Barness shooting.
Kravitz spoke to Camacho two times and Camacho had not observed any of the contested events.
Analysis
"Making promises about the defense evidence in opening statement and then failing to deliver does not constitute ineffective assistance per se." (People v. Burnett (2003) 110 Cal.App.4th 868, 885.) The trial court properly determined that Kravitzs performance was not deficient. Although Kravitz, in opening statement, briefly referred to defendants typical parking habits at his own home, Kravitz made this statement prior to the prosecutor presenting its case against defendant. Kravitz testified at the hearing on the new trial motion that he would not in "20/20 hindsight" have made that statement. Kravitz concluded at the close of the prosecutors case that the most the jury knew about defendants driving habits was that he drove a little fast, parked diagonally in his driveway and then was shot by an officer. Kravitz concluded that calling the witnesses, all of whom had been interviewed, to testify about defendants parking habits would open the door to the presentation of evidence of defendants driving habits including one conviction for evading. Kravitz made a tactical decision in not calling Leon, Delizo and Camacho as witnesses. (Id. at p. 885.) The trial court properly denied defendants motion for a new trial on the basis of ineffective assistance of counsel. (Taylor, supra, 162 Cal.App.3d at pp. 724-725.) We likewise conclude that defendant failed to demonstrate ineffective assistance.
III
We note that the abstract of judgment requires correction to reflect the oral pronouncement of judgment. The court imposed a $20 court security fee (omitted from abstract), a $178 main jail booking fee (abstract incorrectly reflects $ 189.93) and a $29.95 main jail classification fee (abstract incorrectly reflects $23.82). We will order the abstract corrected accordingly. (People v. Mitchell (2001) 26 Cal.4th 181, 184, 185.)
DISPOSITION
The trial court is directed to prepare a corrected abstract of judgment reflecting a $20 court security fee, a $ 178 main jail booking fee and a $29.95 main jail classification fee, and to forward a certified copy to the Department of Corrections and
Rehabilitation. The judgment is affirmed.
We concur:
BUTZ, J.
CANTIL-SAKAUYE, J. --------------- Notes: Pitchess v. Superior Court (1974) 11 Cal.3d 531.