P. v. Clark

Filed 11/30/05 P. v. Clark CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, v. LAMOND DEJON CLARK, Defendant and Appellant.	B173182 (Los Angeles County Super. Ct. No. BA252072)
In re LAMOND DEJON CLARK, on Habeas Corpus.	B180650

APPEAL from a judgment of the Superior Court of Los Angeles County, Ronni B. MacLaren, Judge. Affirmed.

Petition for Writ of Habeas Corpus denied.

Rita L. Swenor, under appointment by the Court of Appeal for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell and Jason C. Tran, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________

Lamond Dejon Clark appeals from judgment entered following a jury trial in which he was convicted of carjacking (Pen. Code, § 215, subd. (a)) and his admission that he suffered a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). Sentenced to prison for a total of 10 years[1], he contends he received ineffective assistance of counsel. He also filed a petition for writ of habeas corpus claiming ineffective assistance of counsel. For reasons explained in the opinion, we affirm the judgment and deny the petition for writ of habeas corpus.

FACTUAL AND PROCEDURAL SUMMARY

On the evening of August 16, 2003, Bernardino Martinez drove to Webb’s Liquor Store near 48th and Central in Los Angeles and parked his Ford Bronco automobile in the parking lot. As Mr. Martinez parked his vehicle, appellant, with a female companion, pulled up next to him in another car. Both Mr. Martinez and appellant’s companion exited their vehicles and entered the store while appellant remained outside of the store. After Mr. Martinez purchased a soft drink, he returned to his car. Mr. Martinez started his car and rolled down the window when appellant approached. Appellant did not say anything to Mr. Martinez but hit him on the head several times with his fist. Appellant opened the car door, pulled Mr. Martinez out of the car and continued to hit him while taking him “down to the ground.” Mr. Martinez returned to the liquor store for help and appellant followed behind him, continuing to hit him. Mr. Martinez asked the people watching the incident to call the police and appellant left the store. After a minute or two, Mr. Martinez left the store, planning to drive his car home, but saw his car being driven away. Appellant was not in the parking lot and neither was the woman who arrived with appellant or the car in which appellant had arrived. Mr. Martinez could not see who was driving his car.

While Mr. Martinez was walking towards his home, he saw a police officer and asked him for help. After explaining what had happened, the officer told Mr. Martinez to get into the patrol car so they could try to find appellant. After a short time and approximately a block from where the car had been taken, Mr. Martinez saw his vehicle “coming back again” and told the officer, “that’s my car.” They followed the Bronco and when appellant parked the car at the site from where it had been taken, the officer ordered appellant out of the vehicle. Appellant was wearing a pair of gloves that Mr. Martinez had in his car, and blood from Mr. Martinez’s head wound was on appellant’s shirt. Mr. Martinez had never given appellant permission to take his car.

Appellant testified on his own behalf, admitting he arrived at the subject liquor store with his girlfriend, Jennifer Dominguez. Appellant stayed in the car while his girlfriend went into the store. While waiting for her, appellant spoke to a woman in a wheelchair, who was outside the store. Appellant saw Mr. Martinez standing “real close to Jennifer while she was trying to pay for the drink.” Appellant looked in the store and told Ms. Dominguez to “ask that dude to back up off you.” When she turned around, she bumped into Mr. Martinez. Appellant questioned Mr. Martinez about whether he knew her “enough to be all upon her like he was and [Mr. Martinez] just grinned and kept walking . . . [t]oward his car.” Appellant was upset because Mr. Martinez was disrespectful to appellant and to his girlfriend and because Mr. Martinez did not pay attention to what appellant was saying. Appellant admitted punching Mr. Martinez and pulling him out of the car. He followed Mr. Martinez into the store to tell him he needed to be more respectful. He left the store and got back into his car and learned from Ms. Dominguez that someone had stolen Mr. Martinez’s car. Appellant was concerned that people who saw him fighting would think he had something to do with the car being stolen, so he chased the thief, caught up to him and told the thief to take the car back because the thief had now put appellant “in [his] mess.” Appellant did not know the thief, had never seen him before and never saw him after the incident. When the thief ran away, appellant got into the car and drove it back to the liquor store. Appellant had put the gloves on because he “didn’t expect the police to be there that fast . . . [and] wouldn’t want [his] prints to be in this man’s car if there was going to be a report made. [He] was trying to keep [himself] out of immediate trouble.” Appellant admitted that in 1992 he had been convicted of grand theft and in 1997 of receiving stolen property. He now felt he was a “God fearing man” and when he recognizes how wrong he has been he has to make it right. He did not take Mr. Martinez’s car, but drove it back to him.

On cross-examination, appellant stated he did not “have a specific address or a phone number [for Ms. Dominguez] but [knew] where she lives with her mom and her son.” Ms. Dominguez went to school, but appellant did not know where. Appellant and Ms. Dominguez had only “hooked up” the day before. Before that they had not seen each other for eight years.

It was the custom of the trial court to allow jurors to present questions to be asked of witnesses. One of the jurors asked if appellant told the police officer and Mr. Martinez that he was returning the car. Defense counsel argued that the question should be asked and appellant’s response was admissible under Evidence Code section 791, subdivision (b).^[2] Counsel argued that based on the prosecution’s argument and the extensive questioning, the prosecution “is impliedly saying this story is a fabrication.” Counsel argued it would be extremely probative for the jury to know that when appellant was pulled out of the car this was the same story he gave to the police officers. His testimony was not something that had been recently fabricated pretrial. The trial court ruled that the defense had not made the showing required by Evidence Code section 791, subdivision (b) and disallowed the question.

I

Appellant contends his right to effective counsel was violated when his trial counsel failed to file a motion for a new trial and when the trial court failed to appoint independent counsel to investigate the basis for a new trial motion.

Prior to sentencing, appellant addressed the court stating he did not “believe that a lot of things were done correctly.” He represented that “during [his] trial his attorney . . . said that she sent an investigator, Mr. Garrett, to find [his] witness in this case. Yet, the witness in this case never left. I mean she resides in that area, generally. . . . So . . . if [his] godfather and [his] mother . . . can walk outside the yard and find the witness and actually bring her to court today, how come the investigator never could.” Appellant claimed that while his attorney stated she spoke to appellant’s godfather on the phone and asked him to bring the witness to court, his godfather says he “actually never really spoken to her but one time. And I’m wondering during this whole ordeal how could that let be and go by without . . . being able to get an actual chance for my witness here to be put on the stand.” Appellant stated there was presently someone in court who could say for a fact that appellant was not the man who took the car from the store.

The court observed that defense counsel had not filed a motion for a new trial and inquired whether she saw any valid grounds upon which to file a motion. Defense counsel responded she did not and that she had reviewed the basis for a new trial as well as a basis for appeal. She explained to appellant “that, with respect to the witness, that we had discussed the witness at length, he and I had during the course of the trial, prior to trial, that we had actually had a continuance . . . in order to find the witness. We were unable to do so and I explained that to him yesterday that if there was some way to procure that, that should have been done, we should have brought that to the court’s attention that was never brought to my attention until yesterday. I explained to him that I did not see a valid ground[] for a new trial and I explained to him that introducing new evidence at the sentencing hearing was not proper forum; that he would have the appeal process available to him and I explained all that to him yesterday.”

Appellant’s “godfather,” Mr. Leo Batie, addressed the court and stated that there was a witness in the parking lot the day the crime occurred. Mr. Batie spoke with defense counsel about this witness and counsel informed him that her investigator could not spend a lot of time out looking for this person. Mr. Batie found the witness and she was in court.

Defense counsel responded that she had been given the witness’s name and where she frequented. Counsel’s investigator went to the location several times looking for her. He met with appellant’s family, the family called the investigator and said come down right now. She is down there. He went down there and she was not there. Her investigator went down there more than three times to try to find the witness. Counsel spoke with several members of the family and said “if you find her, you need to bring her to court. So we could have her subpoenaed and ordered to return and that was never done.”

The court concluded that if the family had been able to bring the witness to court that day they could have brought her to trial. The court disagreed with the accusation that defense counsel had been rude or curt, noted Mr. Batie had not been present at court, and found the attack on her to be completely unwarranted. The court also stated that appellant’s version of what happened was “ludicrous” and “comical.”

“‘When, after trial, a defendant asks the trial court to appoint new counsel to prepare and present a motion for new trial on the ground of ineffective assistance of counsel, the court must conduct a hearing to explore the reasons underlying the request. [Citations.] If the claim of inadequacy relates to courtroom events that the trial court observed, the court will generally be able to resolve the new trial motion without appointing new counsel for the defendant. [Citation.] If, on the other hand, the defendant’s claim of inadequacy relates to matters that occurred outside the courtroom, and the defendant makes a “colorable claim” of inadequacy of counsel, then the trial court may, in its discretion, appoint new counsel to assist the defendant in moving for a new trial. [Citations.]’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 346.)

We note, however, appellant never asked the trial court to appoint new counsel to prepare and present a motion for new trial on the ground of ineffective assistance of counsel. Absent such a request, the procedures outlined above concerning appointment of substitute counsel are not required. (See People v. Gay (1990) 221 Cal.App.3d 1065, 1071.) The issue of whether the trial court abused its discretion in not appointing new counsel is not properly before us. (See People v. Livaditis (1992) 2 Cal.4th 759, 780.)

Appellant next claims that he was denied effective assistance of counsel when his trial attorney failed to file a motion for a new trial. “To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings. [Citations.] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.] [¶] A defendant who raises the issue on appeal must establish deficient performance based upon the four corners of the record. ‘If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.’ [Citations.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1003.) Here, trial counsel was asked by the court whether there were grounds upon which to move for a new trial and counsel stated there were not. Upon this record, we cannot say counsel was deficient in concluding there were no grounds upon which to move for a new trial. Additionally, we cannot say there is a reasonable probability that appellant would have obtained a more favorable result absent counsel’s alleged shortcomings.

II

Appellant next contends he was denied effective assistance of counsel when his attorney failed to cross-examine the officer about appellant’s contemporaneous statement with the return of the Bronco and when counsel failed to argue that the statement was admissible under Evidence Code section 1241.^[3]

Defense counsel had unsuccessfully argued that appellant’s statement was admissible pursuant to Evidence 791, subd. (b) as a prior consistent statement.

Apart from whether the statement would have qualified under Evidence Code section 1241, as a contemporaneous statement made while the declarant was engaged in the subject conduct (see People v. Cruz (1968) 264 Cal.App.2d 350, 359), it was not reasonably probable that the outcome would have been different had the jury heard from the officer that when appellant was stopped driving the stolen vehicle appellant claimed he was returning it to its owner. The jury heard this incredible story from appellant who testified he took the vehicle from the thief

to return it to Mr. Martinez. The fact that appellant also told this to the police officer makes the claim no more believable.

DISPOSITION

The judgment is affirmed.

The petition for writ of habeas corpus filed January 27, 2005, has been read and considered. The petition is denied for failure to state sufficient facts demonstrating entitlement to the relief requested. (See In re Clark (1993) 5 Cal.4th 750, 782-783, 785; (People v. Pope (1979) 23 Cal.3d 412, 425.)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

HASTINGS, J.

We concur:

EPSTEIN, P.J.

CURRY, J.

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[1] His sentence was to run consecutively to those in probation violation cases BA247395 and TA067474 for which appellant was sentenced to two consecutive eight-month sentences, one-third the midterm, on his convictions for possession of a controlled substance. (Health & Saf. Code, § 11350, (a).)

[2] Evidence Code section 791, subdivision (b) provides: “Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after: [¶] . . . [¶] (b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.”

[3] Evidence Code section 1241 provides, “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Is offered to explain, qualify, or make understandable conduct of the declarant; and [¶] (b) Was made while the declarant was engaged in such conduct.”