Filed 1/13/20 P. v. Robertson CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

CAREY ROBERTSON,

Defendant and Appellant. A153774

(City & County of San Francisco

Super. Ct. No. 227416)

ORDER MODIFYING OPINION

AND DENYING MOTION FOR

CALENDAR PREFERENCE;

CHANGE IN JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on October 30, 2019, be modified as follows:

1. On page 2, the last sentence of the last paragraph of the introduction, “For reasons set forth below, we affirm,” is deleted and the following sentence inserted in its place: “For reasons set forth below, we strike the two one-year enhancements imposed in this case pursuant to section 667.5, subdivision (b), but otherwise affirm the judgment.”
2.
3. On page 12, the last sentence of the opinion before the disposition, “Accordingly, the judgment stands,” is deleted and the following sentence inserted in its place: “Accordingly, the convictions stand.”
4.
5. On page 12, after the modified sentence “Accordingly, the convictions stand” and before the disposition, the following new part is inserted:
6.
REQUEST FOR REHEARING BASED ON SENATE BILL NO. 136

After we filed our original, nonpublished opinion in this case on October 30, 2019, defendant filed a petition for rehearing on November 7, 2019, premised on the passage of Senate Bill No. 136 (2019–2020 Reg. Sess.) on October 8, 2019 (Stats. 2019, ch. 590, § 1, No. 5A Deering’s Adv. Legis. Service, pp. 423–424). Senate Bill No. 136 amended section 667.5, subdivision (b), effective January 1, 2020. We granted his request and directed the parties to file simultaneous supplemental letter briefs addressing the following two issues: (1) What effect, if any, does Senate Bill No. 136 have on the issues in this case? (2) Is a remand to the trial court appropriate or necessary to dispose of any issues pertaining to Senate Bill No. 136?

In supplemental briefing, the parties agree the Legislature intended that Senate Bill No. 136 apply retroactively to all cases, including defendant’s, that have not yet been reduced to final judgment. (See In re Estrada (1965) 63 Cal.2d 740, 742–748 [an amendatory statute that lessens punishment is presumed to apply in all cases not yet reduced to final judgment as of the statute’s effective date, unless the enacting body clearly expresses its intent to make the amendment prospective].) The parties also agree the proper remedy would be for this court to strike the two one-year enhancements imposed pursuant to section 667.5, subdivision (b) based on defendant’s admission of having served two prior prison terms, one for domestic violence and the other for assault by means likely to cause great bodily injury.

Having considered this new law, we accept the parties’ positions. First, the parties are correct Senate Bill No. 136 applies to defendant because it has the effect of lessening his punishment. (In re Estrada, supra, 63 Cal.2d at p. 747.) Under the newly amended version of section 667.5, subdivision (b) set forth above, defendant no longer qualifies for the one-year sentencing enhancements because neither of his prior prison terms was based on his commission of a sexually violent offense.

Second, as to the proposed remedy, we grant the parties’ joint request to strike the two one-year enhancements imposed in this case pursuant to section 667.5, subdivision (b); reduce defendant’s aggregate sentence from eight years four months to six years four months; and remand this matter to the trial court with instructions to prepare an amended abstract of judgment consistent with this opinion. In all other regards, the judgment stands.

7. On page 12, the text of the disposition is deleted and the following disposition text inserted in its place:
8.
The two one-year sentencing enhancements imposed pursuant to section 667.5, subdivision (b) are stricken, and defendant’s aggregate sentence is reduced from eight years four months to six years four months. In all other regards, the judgment is affirmed. This matter is remanded to the trial court with instructions to prepare an amended abstract of judgment consistent with this opinion.

This modification changes the judgment.

Defendant’s motion for calendar preference filed on December 16, 2019, is denied.

Dated: 01/13/2020 Fujisaki, J. , Acting P. J.

A153774/People v. Robertson

Filed 10/30/19 P. v. Robertson CA1/3 (unmodified opinion)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

CAREY ROBERTSON,

Defendant and Appellant.

A153774

(City & County of San Francisco

Super. Ct. No. 227416)

This is an appeal from judgment after a jury convicted defendant Carey Robertson of two counts of domestic violence with a prior (Pen. Code, § 273.5, subd. (f)(1)) and two counts of assault by means likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4)), and defendant admitted having served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).

Prior to sentencing, the San Francisco Public Defender’s Office investigated Deputy Public Defender Gregory Goldman, defendant’s trial counsel, and determined that he had failed to provide defendant effective representation. The trial court thus appointed private counsel to represent defendant for posttrial matters including, if appropriate, for the filing of a new trial motion. After conducting his own investigation into the matter, defendant’s new counsel filed a declaration with the trial court attesting that he had found no grounds upon which to base a new trial motion and had concluded “more vigorous representation” would not have yielded a different result for defendant. The trial court thereafter sentenced defendant to a total prison term of eight years four months.

On appeal, defendant challenges the judgment as the product of ineffective assistance of counsel in violation of his rights under the Sixth Amendment of the United States Constitution. For reasons set forth below, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On April 21, 2017, a criminal information was filed charging defendant with: two counts of domestic violence with a prior (§ 273.5, subd. (f)(1)) (counts I and III), and two counts of assault by means likely to cause great bodily injury (§ 245, subd. (a)(4)) (counts II and IV). In addition, the information alleged that defendant had served two prior prison terms for felony offenses within the meaning of section 667.5, subdivision (b).

A. The Charged Offenses.

A panel of 12 jurors was duly sworn and impaneled to try defendant’s case on June 29, 2017. The following facts were revealed during this trial. In July 2017, defendant and M.R. (the victim) had been married about eight years and had two children together, but had been separated for a few years. The victim, pregnant with her new boyfriend’s child, had recently called defendant to discuss the children and was considering reuniting with him. The victim agreed to meet defendant in San Francisco, and, once there, they went to the home of his cousin’s “baby mama[],” V.C., where they stayed together for about a week.

On February 7, 2017, about a week after the victim’s arrival in San Francisco, defendant became enraged when she refused to let him in through the back door of V.C.’s house. Consistent with V.C.’s instructions to her, the victim instead unlocked the front door, which defendant eventually entered. Once inside, defendant started punching the victim in the face and the back of her head, causing her nose to bleed. As the victim was yelling for defendant to stop his attack, she heard someone outside mention the police. Defendant stopped hitting her and told her to be quiet.

A short time later, V.C. came home, finding the victim seated on the couch. The victim did not mention to V.C. what had just transpired with defendant and kept her nose covered to stop the bleeding. Defendant, who had briefly left the house, returned, and V.C. then drove him and the victim to his grandmother’s house, where they spent the night. Early the next morning while defendant was still sleeping, the victim left and took a bus back to her home in Palo Alto. She realized, however, that her key and phone, which had been in her purse the day before, were no longer there. Defendant had taken her purse at some point the day before, and although he had given the purse back, her key and phone were missing.

The next day, the victim arranged to meet defendant back in San Francisco so that she could retrieve her key and phone. The victim drove with her sister and cousin to a homeless encampment in San Francisco, where they met defendant outside a tent. Defendant appeared annoyed that the victim’s sister was present, so the victim told her sister to wait in the car with her cousin. Defendant then asked the victim what she was willing to give him in exchange for her key. The victim handed him $50, at which point he dropped the key on the ground. When the victim bent down to pick up her key, defendant kicked her in the face, giving her a bloody nose. Although the victim wanted to leave immediately, her sister and cousin convinced her to call the police and make a report.

Officer Frank Chinawah responded to the scene, where he spoke with the victim, who was “obviously shaken up” and “fearful.” She reported to Officer Chinawah that defendant kicked her in the face after she had bent over to pick up her key. Officer Chinawah could see that the victim’s nose was bleeding and possibly broken, and that she was bruised under her left eye.

Paramedic Arthur King also responded to the scene and noticed the injuries to the victim’s face. The victim told him that her husband had assaulted her. King took the victim to the hospital, but she left about an hour later, before being examined, because her sister needed to leave for a prior engagement. Several photographs of the victim’s injuries were presented to the jury.

B. Prior Acts of Domestic Violence.

On February 3, 2007, Officer Steve Toribio responded to a domestic violence call. When he arrived, Officer Toribio spoke with K.R., who reported that defendant had “head butted” her; thrown a chair, baby bassinet and baby car seat at her; and pushed her into a refrigerator and glass table. In addition, K.R. reported that defendant had threatened to come back and “shoot up” her or the house, a threat she took seriously. Adding to K.R.’s fear was the fact that she had been involved in another incident of domestic violence with defendant in January 2006. Officer Toribio observed bruises on K.R.’s face.

On February 24, 2013, Officer Tommy Phengsene responded to a domestic violence call by the victim in this case. The victim told the officer that defendant had threatened to hit her with their son’s toy car. The victim further reported that defendant had thrown deodorant at her and threatened her that “when he gets out of jail that she would be—her teeth would be gone.” Officer Phengsene observed that the victim was scared and had bruises on her wrist and a red welt on her cheek. After this incident, the victim obtained a stay away order against defendant.

On September 11, 2014, Officer Jason Nord spoke with the victim after responding to another domestic violence call. The victim told Officer Nord that defendant had thrown a cup of hot tea at her, hitting her in the arm. Consistent with her report, Officer Nord saw red marks on the victim’s arm that appeared to be a burn.

On April 22, 2015, defendant was convicted of assaulting with force likely to cause great bodily injury another woman, J.J., and served a prison term for the felony offense.

C. The Verdict and Posttrial Investigation into Counsel’s Performance.

On July 11, 2017, the jury found defendant guilty as charged. In addition, defendant admitted the allegations of having served two prior prison terms for felony offenses within the meaning of section 667.5, subdivision (b).

On August 11, 2017, the defense filed a motion for a continuance accompanied by a declaration from Deputy Public Defender Manohar Raju. According to this declaration, Goldman was no longer working for the San Francisco Public Defender’s Office and a motion for new trial would need to be filed in this case.

On August 28, 2017, the Chief Attorney for the San Francisco Public Defender’s Office, Matt Gonzalez, executed a declaration with additional details of his office’s investigation into Goldman’s representation of defendant. The investigation was prompted by complaints by defendant and his family and revealed, among other things, that Goldman had visited defendant just once in jail from arraignment to trial, “showing inadequate preparation and representation.” (Boldface omitted.) Goldman had also allowed defendant to testify without proper preparation at his bail hearing and to be cross-examined regarding his alleged prior acts of domestic violence, thereby “impinging on” his ability to testify at the upcoming trial. (Boldface omitted.) Lastly, Gonzalez attested that Goldman had failed to investigate key witnesses and character witnesses, including two individuals who claimed to have seen the victim shortly after she was allegedly punched in the face, and who would have testified that she had no visible injuries. According to Gonzalez, Goldman’s representation of defendant was “below office standards and the standard of competency in the criminal defense community generally.” Moreover, Gonzalez attested, “During my tenure as Chief Attorney, I have never seen representation for a trial client that fell so far below our accepted standards.”

The trial court thereafter appointed private counsel John Kaman as conflict counsel to represent defendant for any postsentencing matters including, if appropriate, the filing of a new trial motion. After conducting his own investigation into defendant’s case, Kaman filed a declaration with the trial court stating that he had concluded there were no grounds for moving for a new trial. Specifically, Kaman’s declaration explained: “While Mr. Goldman’s handling of the case may have been less than perfect nothing in my investigation indicates that a more vigorous representation would have produced a different verdict. [¶] . . . Substantial evidence was offered against him, including a long pattern of domestic violence, and victim’s injuries were well documented.”

In an oral presentation before the trial court on December 28, 2017, Kaman expanded upon his reasons for concluding that Goldman’s deficient performance provided no basis for seeking a new trial on defendant’s behalf:

“I have read all the transcripts, interviewed every possible witness that might exist to this case, either personally or through my investigator, and I’ve spoken to Greg Goldman, the trial attorney. It does seem to me that there were some omissions in his presentation of the defense case at trial. Notably his failure to visit [defendant] in jail or to prepare him for the bail hearing.

“He also did not tell [defendant] that he had a chance to have his prior conduct adjudicated by the jury. Instead he stipulated.

“All of those things are probably not part of a stellar performance, but there’s a two-part [legal] analysis as the Court is well aware that we have to go through before we find a basis for a new trial when [ineffective assistance of counsel (IAC)] is involved.

“The second part is that the results would have been different if the IAC had not been present.

“And as I indicated to the Court in my filings, we’ve interviewed—excuse me, the public defender gave us the names of a large number of witnesses who were not called by the defense. We interviewed every one that we could make contact with, a total of seven people, and the eighth person is [the victim] herself. We did not speak to her, but we spoke to the other seven.

“None of them had anything to say except character testimony. And one of them, had she been called at trial, I think would have hurt [defendant’s] case more than she would have helped it. So I can’t say that if we had a second trial that the results would be any better or any different.

“So for that reason I filed with the Court under seal a record of all of the witness statements that we took and also my own personal declaration on the motion for new trial, which I don’t think is called for.”

D. Defendant’s Sentence and Appeal.

On December 28, 2017, the trial court sentenced defendant to eight years four months, consisting of the five-year upper term on count I, a consecutive 16-month term representing one-third the midterm on count III, and two consecutive one-year terms for the section 667.5, subdivision (b) enhancements. The three-year sentences for count II and count IV were stayed pursuant to section 654. This timely appeal followed.

DISCUSSION

Defendant challenges the judgment on the ground that he received IAC in violation of his Sixth Amendment rights. Specifically, defendant contends that reversal is required due to his trial counsel’s deficient performance because “counsel’s neglect was so egregious that prejudice may be presumed.” (Boldface omitted.) Alternatively, defendant argues that, even if a particular showing of prejudice is required, reversal is warranted because it is reasonably probable that but for counsel’s deficient performance he would have received a more favorable outcome in this case.

Under well-established legal principles, to prevail on a claim of IAC, the “defendant must show counsel’s performance fell below a standard of reasonable competence, and that prejudice resulted.” (People v. Anderson (2001) 25 Cal.4th 543, 569.) “Prejudice” in this context occurs only where defense counsel’s deficient performance “ ‘so undermined the proper functioning of the adversarial process’ ” that the outcome cannot be deemed reliable. (People v. Kipp (1998) 18 Cal.4th 349, 366, quoting Strickland v. Washington (1984) 466 U.S. 668, 686 (Strickland).) In applying this standard, the defendant must overcome a strong presumption that counsel’s conduct was sound legal strategy or otherwise within the wide range of reasonable professional assistance. (People v. Burnett (1999) 71 Cal.App.4th 151, 180; People v. Bunyard (1988) 45 Cal.3d 1189, 1215.)

A. Showing of Prejudice Required.

As defendant notes, the United States Supreme Court has recognized that, under certain limited circumstances, it may be “so likely” the accused was prejudiced by his or her legal representation that the accused may be excused from having to make a specific showing of prejudice in order to establish a denial of his or her Sixth Amendment rights. (United States v. Cronic (1984) 466 U.S. 648, 658 (Cronic).) In Cronic, the high court identified three such circumstances: (1) the accused was completely denied counsel; (2) the accused’s counsel “entirely fail[ed] to subject the prosecution’s case to meaningful adversarial testing”; or (3) “although counsel [wa]s available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could [have] provide[d] effective assistance [under the given circumstances] is so small that a presumption of prejudice is appropriate . . . .” (Id. at pp. 659–661.)

Here, defendant relies upon the third circumstance to argue that he is entitled to reversal based on ineffective assistance without any specific showing of prejudice. Specifically, defendant contends that even though counsel was available to assist him during trial, under the given circumstances, which include counsel’s failure to adequately meet and confer with him before trial and to prepare him to testify at the bail hearing, the likelihood that he received effective assistance is so small that we may presume prejudice.

We disagree that Cronic applies in this case. As the California Supreme Court recently explained: “The high court has made clear that exception [identified above] is very narrow. It cited Bell v. Cone (2002) 535 U.S. 685, 696–697 [152 L.Ed.2d 914, 122 S.Ct. 1843], as holding that ‘for Cronic’s presumed prejudice standard to apply, counsel’s “failure must be complete.” ’ [Citation.]” (People v. Rices (2017) 4 Cal.5th 49, 91 (Rices); see also In re Visciotti (1996) 14 Cal.4th 325, 353 [“Defendants have been relieved of the obligation to show prejudice only where counsel was either totally absent or was prevented from assisting the defendant at a critical stage”].) Here, the standard for this narrow exception is not met, as Goldman was not totally absent and did not completely fail to provide defendant with legal assistance. While we certainly do not overlook the deficiencies in his performance, Goldman did in fact represent defendant in certain key junctures both before and during trial.

For example, Goldman filed a written motion for a bail hearing that attached a declaration from a public defender investigator who summarized interviews with four of defendant’s relatives and two of his family friends. Goldman then represented defendant at both his bail hearing and his preliminary hearing, at which he raised appropriate objections during direct examination before cross-examining the prosecution’s only witness, Sergeant Friedman. Goldman brought a motion to reduce the charged counts to misdemeanors and appeared at defendant’s arraignment and pretrial hearings. Goldman also filed several motions in limine and then argued them on defendant’s behalf at the pretrial hearing. He participated in voir dire, made an opening statement and cross-examined all of the prosecution’s witnesses at trial, raising appropriate objections. And, lastly, Goldman presented a closing argument where he focused on the victim’s lack of credibility and the existence of reasonable doubt as to whether defendant committed the charged offenses.

Thus, putting aside Goldman’s professional errors that were identified by Gonzalez and Kaman, as the record set forth above reflects, this case is not one in which defense counsel totally failed to investigate the charges, to find witnesses or evidence that would support the accused’s defense, or to effectively argue the accused’s case before the jury. As such, this case does not fall within the “very narrow” exception established by the United States Supreme Court in Cronic (see Rices, supra, 4 Cal.5th at p. 91), such that defendant cannot prevail on his ineffective assistance claim without directing this court to specific errors by Goldman that caused him to suffer prejudice. (Cronic, supra, 466 U.S. at p. 666 & fn. 40 [noting that, in order to come within this narrow exception, “counsel’s representation [must be] so inherently inconsistent with a reasonably effective defense as to justify a presumption that respondent’s trial was unfair”].) We thus turn to the issue of whether defendant has made a proper showing of prejudice.

B. Prejudice Not Demonstrated.

Having reviewed the evidentiary record at hand, we agree with Kaman and the trial court that defendant cannot make the requisite showing of prejudice. In so concluding, we accept that Goldman’s professional errors may have prevented the jury from hearing testimony from additional potential witnesses and may have made it more difficult for defendant to testify in his own defense at trial. At the same time, however, these errors could not negate the wealth of evidence corroborating the victim’s testimony regarding defendant’s crimes, including testimony from the police officer and paramedic who responded to the scene after defendant kicked the victim in the face on February 8, 2017. Both of these percipient witnesses described the victim’s injuries in detail, as well as her fearful state of mind. In addition, the jury was shown numerous photographs of her injuries from that day.

And while there may have been no police officer testimony or photographs taken of the victim’s injuries with respect to the February 7, 2017 attack, it is not at all clear that but for Goldman’s errors the jury’s verdict would have been different. While defendant relies upon Goldman’s failure to interview the potential eight witnesses identified by the public defender’s pretrial investigator, he disregards the fact that conflict counsel, Kaman, interviewed seven of these potential witnesses after trial and determined none of them would have provided testimony that would have changed the outcome of this case. Having reviewed Kaman’s sworn declaration and interview notes for these potential witnesses, we agree with his assessment of this entire matter.

As defendant notes, several of these potential witnesses mentioned when interviewed their belief that the victim was dishonest and/or a drug addict (e.g., A.P. and P.W.). However, putting aside such testimony, there was also a plethora of evidence establishing defendant’s violent nature and long criminal history. This evidence includes, most significantly, defendant’s past acts of domestic violence toward the victim, as well as toward several other women with whom he had been romantically involved—acts that were described in sworn testimony by responding police officers who witnessed the women’s injuries firsthand. Thus, notwithstanding defense counsel’s failure to call potential character witnesses or to prepare defendant before he testified to his own detriment at the bail hearing, the fact remains that defendant would not have been able to avoid the extensive evidence of his past acts of violence toward this victim and others.

In addition, while one potential witness (G.S.) was a lifelong friend who expressed his desire to help defendant, this witness also acknowledged defendant’s history of domestic violence and longstanding issues with anger management and substance abuse. Two other of defendant’s potential character witnesses were his mother (A.P.) and aunt (P.W.), who likely would have appeared biased in his favor in front of the jury. Moreover, defendant’s mother stated in her interview that, while defendant did not punch the victim at V.C.’s house on February 7, 2017, he did in fact punch her later that day at his grandmother’s house, thereby further demonstrating his violent nature toward the victim. And while two potential witnesses (V.C. and N.G.) claimed not to have seen visible injuries on the victim on February 7, there were other significant problems with their accounts of what transpired. N.G., for example, claimed defendant never hit the victim based on the fact that she heard them arguing from her own, separate apartment. Because N.G. was not present at any point at V.C.’s house for their argument, however, N.G. lacked personal knowledge of whether defendant hit the victim. V.C., in turn, directly acknowledged “not know[ing] the whole story.” And, lastly, one of the eight potential witnesses was the victim’s sister, who would have testified that she observed firsthand defendant dropping the victim’s key and then kicking her in the face once she bent down to retrieve it, testimony that no doubt would have been detrimental to defendant’s case.

Thus, based on this record, we reject defendant’s claim of IAC because he has failed to offer any evidence or legal argument demonstrating “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland, supra, 466 U.S. at p. 694.) No further inquiry is required. (People v. Kipp, supra, 18 Cal.4th at p. 366 [if “a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel’s performance was deficient”]. Accordingly, the judgment stands.

DISPOSITION

The judgment is affirmed.

 

_________________________

Wick, J.*

WE CONCUR:

_________________________

Fujisaki, Acting P. J.

_________________________

Petrou, J.

A153774/People v. Robertson