California Court of Appeal Sep 30, 2013 No. D061967Unpublished
Filed 9/30/13 P. v. Hoag CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D061967
Plaintiff and Respondent,
v. (Super. Ct. No. SCD234677)
DOMINICK HOAG,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Kerry
Wells, Judge. Affirmed.
David L. Annicchiarico, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Laura A.
Glennon, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Dominick Hoag guilty of assault with a deadly weapon. (Pen. Code,
§ 245, subd. (a)(1).) The jury also found true that he inflicted great bodily injury while
committing the felony and personally used a deadly weapon (a knife). (Pen. Code,
§§ 12022.7, subd. (a), 1192.7, subd. (c)(8), (23).) The court imposed a five-year
sentence.
On appeal, defendant contends the trial court erred in admitting evidence that he
was affiliated with the Hells Angels gang. He also contends the court erred in denying
his new trial motion based on his ineffective assistance claim. We reject these
contentions and affirm the judgment.
FACTUAL BACKGROUND
Overview
During a chaotic multi-person fight at a party attended mainly by high school and
college students, 19-year-old Jonathon Wilson was stabbed in the lower back. Wilson
was not seriously injured, but the wound was close to his spine and kidney.
Although Wilson did not see who stabbed him and there were no eyewitnesses to
the actual stabbing, several witnesses testified that Wilson and defendant were fighting
shortly before the stabbing. Additionally, one witness, Mariah Oelke (who had known
defendant for several years), saw defendant holding a knife immediately after his fight
with Wilson and heard defendant indicate that he had stabbed someone.
At trial, the prosecution called several of the teenagers/young adults who attended
the party. These witnesses included the victim (Wilson) and eyewitness Oelke. The
witnesses also included two of defendant's friends, who made clear that they did not
2
believe defendant was involved in the stabbing. One of these friends, Michael
Zimmerman, testified that he pulled out a knife during the fight and that he (and not
defendant) was the person who stabbed Wilson. Zimmerman claimed he stabbed Wilson
by accident. The defense did not independently call any witnesses, but relied on the
prosecution witnesses (and particularly Zimmerman) to establish its primary defense that
it was Zimmerman and not defendant who committed the stabbing. In finding defendant
guilty, the jury apparently credited Oelke's testimony and found Zimmerman's testimony
to be unreliable.
The appellate issues raised by the parties require that we provide a somewhat
detailed description of the evidence presented at trial. Although there were various
inconsistencies in the testimony of the teenage/young adult witnesses who attended the
party, we summarize the facts in the light most favorable to the prosecution and highlight
the inconsistencies only to the extent they are material to the resolution of this appeal.
Summary of Prosecution Case
On December 20, 2010, Chet Cleater hosted an animal costume party at his
parents' Point Loma home. Cleater and Wilson are close friends and both had graduated
from high school about six months earlier. Wilson arrived at Cleater's house at about
8:00 p.m. or 8:30 p.m. to help set up for the party. Wilson was dressed as a bunny.
The party was intended to be "invite only," and for the first hour or two, only
invited individuals arrived and most were dressed in animal costumes. These guests
entered through the front door. Wilson knew these individuals because they had attended
3
his former private high school or the neighborhood high school. The party featured a disc
jockey, alcoholic beverages, and beer pong, a drinking game played on a ping-pong table.
At about 10:00 p.m., defendant and his three close friends (Zimmerman, Terry
Chambers, and Bradley Kinsella) arrived. These individuals had not been invited and
they walked into the backyard through a side gate. Unlike the other partygoers, the four
were not wearing costumes. Defendant wore a hoodie sweatshirt, shorts, and a hat.
Cleater approached defendant and his friends, and asked them to leave. Cleater
and his friends were not comfortable with defendant being at the party because defendant
was not in their same crowd. When defendant failed to leave, Cleater and Wilson
repeated the request that defendant and his friends leave the party. After a discussion,
Cleater allowed defendant and his friends to stay, "as long as nothing happens," but made
clear that they should "stay out of the house."
Shortly after, defendant pulled a young woman's hair (Cayla Green), and she
slapped him. Green heard the word "bitch" directed at her. Green "immediately regretted
the decision because of how [defendant] looked at" her. One of defendant's friends,
Kinsella, intervened, telling Green to "not mess with" defendant.
Nineteen-year-old Mariah Oelke, another invited guest, witnessed the incident and
heard defendant say something like " 'I would hit a bitch.' " Oelke had gone to the same
school as defendant and had known him since her freshman year in high school.1 After
1 At trial, Oelke said she was Wilson's friend, but denied that she had any "bad blood" or any prior conflict with defendant.
4
the exchange, Oelke noted the atmosphere "got kind of weird," prompting her to move.
She moved to a raised platform where she stood until she left the party.
Shortly after, one or more individuals (including Zimmerman) threw tomatoes at
the disc jockey who was inside the house. Cleater turned the music off and yelled,
" '[w]hoever is throwing . . . food, get out of [this] house.' " At that point, many of the
partygoers went outside to the backyard.
Several fights then occurred. Defendant and one of Wilson's good friends began
to hit each other. Attempting to defend his friend, Wilson "jumped in" and threw "a
couple punches" towards defendant. Defendant punched back, but Wilson did not recall
being hit and said that defendant's punches were "flagrant." Wilson described defendant's
actions as "bear-hug-type rounded punch[es]." During the fight, several of Wilson's
friends were surrounding him and attempting to assist with the fight.
Oelke was standing about six feet away and saw defendant's and Wilson's arms
going around each other's bodies. They were "grabbing each other and punching," and
looked like they were "wrestling." Oelke then saw both Wilson and defendant fall onto
the ping-pong table, knocking it over. Defendant and Wilson wrestled on the ground for
about 20 to 30 seconds.
Defendant's friend Chambers (and possibly one other person) pulled defendant out
of the fight. Chambers testified that he did not see defendant holding a knife. However,
Oelke, who was standing about two feet away from defendant and his friends, noticed a
knife in defendant's right hand. She said the knife was a skinny, folding knife with a red
handle and a three-inch blade. Most of the handle was in defendant's hand. Oelke heard
5
defendant ask his friends, "Did I get him? Did I get him?" His friends replied, " 'Yeah,
you got him. You got him good.' " Defendant then turned towards Oelke, and, showing
her the knife, said " 'See this? This is what a real man uses.' "
As defendant turned away to face his friends, Oelke discretely took two
photographs of the knife with her cell phone. She gave the photographs to the police.
The first photograph was entirely black. The second photograph was admitted into
evidence. It depicted a shiny pointed metal object, but the photograph was mostly black
and did not show who was holding the metal object (if anyone). Although the
photograph appears to show a small portion of the knife handle and depicts other objects
as red, there is no red color showing on the knife.
After Cleater's father told everyone to leave and that the police had been called,
defendant and his friends quickly left the party. Defendant and his three friends
(Kinsella, Chambers, and Zimmerman) went to a Denny's restaurant.
After the fight ended, Wilson did not initially realize he had been stabbed. He
walked to his girlfriend, who noticed blood all over his back. Wilson then went to the
hospital. The treating physician noted that the stab wound was three and one-half inches
deep and one and one-half inches wide. The doctor opined that the knife went into
Wilson's lower left back at an angle, and then curved away from the spine. The doctor
said that if the knife had gone in straight, it could have hit Wilson's kidney. Wilson
received stitches and staples to close the wound.
When Wilson spoke to police officers after the incident, he was unable to identify
defendant as the person with whom he was fighting, but his description matched
6
defendant's appearance, including his height, tattoos, and distinctive "gauged" earrings.
When police officers showed Wilson a photograph of Zimmerman, Wilson said he never
fought with Zimmerman at the party and did not see Zimmerman while he was fighting
with defendant. Wilson also said he was in no other fights at the party other than his
fight with the person who looked like defendant.
One week after the party, police officers conducted a traffic stop and defendant
was a passenger in the vehicle. Police officers searched defendant's backpack and
recovered a knife in a plastic sheath that was designed to be worn around the neck or
waist on a belt. The officers also found Hells Angels clothing inside the backpack and
two hypodermic needles. At the same traffic stop, police recovered two more knives, one
from defendant's person and one from underneath the front passenger seat where he had
been sitting. None of the knives had a red handle. At trial, police officers indicated there
was nothing unlawful about defendant's possession of these knives.
About six months later, the police conducted another traffic stop while defendant
was on a motorcycle and seized a folding pocket knife from defendant. The knife was
later lost. There was no evidence suggesting this knife was the knife used in the
December 20 stabbing and there was no evidence that defendant was carrying this knife
illegally.
Testimony of Defendant's Two Friends: Zimmerman and Chambers
At trial, the prosecutor called two of defendant's friends as witnesses: Zimmerman
and Chambers. Portions of their testimony were helpful to the prosecution case and other
portions were helpful to the defense case.
7
Zimmerman
In his trial testimony, Zimmerman said he went to Cleater's party with his three
friends (defendant, Chambers, and Kinsella) and that the four arrived together in
Kinsella's car. Zimmerman acknowledged he was involved in the backyard fights, which
he described as chaotic and fast-moving.2
Zimmerman said he initially began pulling people off defendant during defendant's
fight, but then became involved in his own separate fight. He explained that when he was
attempting to help defendant, several individuals surrounded him and then the group
moved so he could not see what the defendant or his other friends were doing. After a
short time, Zimmerman pulled out his knife for the first time when "some guy" kept
"swinging" at him. Zimmerman said this knife had a black handle. Zimmerman held out
the knife and warned everyone to get back and leave him alone. At that point, a large
male tackled him from behind and landed on top of Zimmerman.
When Zimmerman turned his head, this large individual began to choke him.
Zimmerman then dropped the knife and never saw it again. Zimmerman said he did not
" 'know what happened to the knife' " after he was tackled. When Zimmerman was
finally able to stand up, he "just ran" away. Zimmerman testified he did not have the
knife when he left the party.
2 He said "[The fight] was just all over the place . . . . The whole backyard is moving. Everyone is fighting. There was chairs being thrown. Someone came running out of the house with a pot or a pan. Stuff was going on very fast . . . ." 8
Based on this trial testimony, Zimmerman took responsibility for stabbing Wilson.
Zimmerman testified that he believed he was the person who stabbed Wilson, but said the
stabbing was inadvertent and that he did not "intentionally force my knife" into anyone.
He said defendant had no involvement in the stabbing.
In an attempt to challenge the credibility of Zimmerman's trial court admissions,
the prosecution elicited Zimmerman's testimony that when he was first interviewed by
investigators he had denied he had a knife or had stabbed anyone at the party. However,
on the day of the preliminary hearing, Zimmerman told investigators that he may have
accidentally stabbed someone when he pulled out his knife at the party. Over defense
objections (and as detailed below), Zimmerman also acknowledged that he told
investigators before trial he did not want to testify because he was afraid of defendant
based on defendant's association with the Hells Angels.
Chambers
Chambers testified he is defendant's close friend. He said he witnessed two fights
at the party; defendant was involved in one fight and Zimmerman was involved in the
other fight. The fights were about 15 or 20 feet apart. With respect to defendant's fight,
Chambers said that "five or six guys" were "surrounding [defendant] in a circle, throwing
blows." Although Chambers was standing near defendant, he did not see anyone get
stabbed and never saw defendant with a knife. Chambers said that he pulled defendant
out from the fight, and as he was pulling defendant he was holding defendant's arms and
saw that defendant did not have a knife in his hands. He said that although defendant
9
carries knives, he did not believe defendant had a knife that evening. Chambers also said
he did not hear or see defendant talking with Oelke after the fight.
Defense Theory
Defense counsel's main defense theory was that Zimmerman committed the
stabbing. Defense counsel relied on Zimmerman's trial testimony and on Wilson's
admissions that during the fight there were several individuals behind him who he could
not see. Defense counsel also vigorously argued that Oelke (who is of small stature)
could not have physically seen the fight and/or did not actually see defendant holding a
knife.
Verdict and New Trial Motion
The jury found defendant guilty of assault with a deadly weapon and found true
the allegations that in committing the offense he inflicted great bodily injury and
personally used a deadly weapon (a knife).
Shortly after the verdict, defendant retained a new counsel, who then brought a
new trial motion based on several grounds, including that trial counsel did not provide
"constitutionally mandated effective assistance." After a hearing at which several
witnesses testified, the court denied the motion.
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DISCUSSION
I. Admission of Gang Related Evidence
Defendant contends the trial court abused its discretion by admitting evidence of
his affiliation with the Hells Angels. Defendant contends the evidence was highly
prejudicial and should have been excluded under Evidence Code section 352.3
A. Background Information
Before trial, defendant requested the court to "prohibit or sanitize any references to
Hell's Angels, the motorcycle club, based on the fact they would tend to be more
prejudicial than probative and not relevant . . . ." Defense counsel also noted that
although defendant was currently a member of the Hells Angels, he was not a member at
the time of the stabbing.
The prosecutor responded by stating that she did not "intend to introduce evidence
that defendant is now a formal member of the Hell's Angels as that wouldn't be relevant.
. . . [¶] . . . [¶] . . . The only time it would come up is with the testimony of Mr.
Zimmerman. If we believe his testimony is biased or not truthful for any reason based on
the fact of the gang that defendant is currently a member . . . ." The trial court deferred
its ruling, stating that the prosecutor should raise the issue if "based on the way
[Zimmerman] testifie[s], there's a need to cross-examine him on that." The court noted
that "the law states if a witness is influenced in their testimony either by fear or influence
3 All further statutory references are to the Evidence Code. 11
of any sort, that's relevant to their credibility. And so if indeed the witness is changing
his story . . . that might come in with Mr. Zimmerman."
During his trial testimony, Zimmerman acknowledged that during an initial July
2011 interview with police investigators, he had denied any involvement in the crime and
specifically denied that he had a knife at the party or that he stabbed anyone.
Zimmerman said that a short time later defendant's mother drove him to a meeting with
defense counsel. On the day of the preliminary hearing, Zimmerman then changed his
story, and told the investigating officer that he had a knife at the party; he pulled out the
knife; and he may have inadvertently slashed or nicked someone. At trial, Zimmerman
further elaborated on this version of the events and specifically stated for the first time
that he believed he stabbed Wilson. He said he did not tell the truth earlier because he
was the caregiver for his younger brother and was scared of the consequences of telling
the truth.
At trial, Zimmerman also testified that he is good friends with defendant ("[l]ike
family") and previously dated defendant's sister. In response to the prosecutor's
questions, Zimmerman repeatedly denied that he changed his story because he was being
coerced or threatened by defendant or defendant's family and denied that he had ever said
that he was fearful of defendant. Zimmerman said he was motivated only by a desire to
tell the truth and did not want defendant to go to jail for something he did not do.
Shortly after these responses, the prosecutor asked for a sidebar conference, and
the court held an unreported chambers conference. Immediately after the conference, the
prosecutor asked Zimmerman: "Isn't it true that you told us you were in fear of the
12
defendant . . . because of his association with the Hell's Angels?" Zimmerman initially
denied that he had made this statement. However, he later acknowledged he may have
made that statement but said he misspoke and had intended to say something different.
Later during trial, Detective Michael Stacy testified that when Zimmerman was
first interviewed he denied any involvement in the stabbing, but on the day of the
preliminary hearing, Zimmerman said for the first time that he pulled out a knife at the
party. At that point, the prosecutor inquired whether the detective had asked Zimmerman
if he feared defendant, and Detective Stacy responded "Yes, he did." The prosecutor then
asked: "[D]id he tell you it was related to his association with the Hell's Angels?"
Defense counsel objected based on "[p]revious rulings." After the court overruled the
objection, Detective Stacy answered "Yes."
During trial, evidence was also admitted that during the first traffic stop of
defendant (when he was a passenger), defendant's backpack contained Hells Angels
clothing. Defense counsel did not specifically object to this evidence.
B. Applicable Legal Principles
All relevant evidence must be admitted unless excluded under a constitutional or
statutory provision. (§ 351.) Relevant evidence includes "evidence relevant to the
credibility of a witness . . . ." (§ 210.) Section 352 provides that relevant evidence may
be excluded if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury. (§ 352; People v.
Lee (2011) 51 Cal.4th 620, 642.)
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A trial court has broad discretion in determining whether evidence is relevant and,
if so, whether the evidence should be excluded under section 352. A trial court's exercise
of discretion will not be disturbed unless the court acted in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage of justice. (People v.
Rogers (2013) 57 Cal.4th 296, 326.)
Gang evidence always carries a risk of prejudice and should be carefully
scrutinized before it is admitted because it may have a highly inflammatory impact on the
jury. (People v. Avitia (2005) 127 Cal.App.4th 185, 192-193.) But "[g]ang evidence is
admissible if it is logically relevant to some material issue in the case other than character
evidence, is not more prejudicial than probative, and is not cumulative." (Id. at p. 192.)
Evidence of witness fear and possible threats and intimidation by gang members is
relevant to explain possible witness bias during testimony. (People v. Sanchez (1997) 58
Cal.App.4th 1435, 1449-1450; People v. Olguin (1994) 31 Cal.App.4th 1355, 1367-1369;
People v. Harris (1985) 175 Cal.App.3d 944, 957.) Evidence that a witness is afraid to
testify or fearful of retaliation is highly relevant to the credibility of the witness and is
generally admissible. (People v. Mendoza (2011) 52 Cal.4th 1056, 1084; People v.
Burgener (2003) 29 Cal.4th 833, 869; People v. Gonzalez (2006) 38 Cal.4th 932, 946;
People v. Avalos (1984) 37 Cal.3d 216, 232; People v. Sanchez, supra, 58 Cal.App.4th at
p. 1449.)
C. Analysis
Defendant acknowledges the evidence of Zimmerman's prior statements that he
feared defendant because of his Hells Angels affiliation was relevant to Zimmerman's
14
credibility and potential bias. But defendant contends the court erred in refusing to
exclude the evidence under section 352. We determine the court's ruling was a proper
exercise of discretion.
Zimmerman was a critical witness at trial because he claimed that he—and not
defendant—was solely responsible for the stabbing. Evidence that Zimmerman had
previously admitted he was fearful of defendant because of defendant's Hells Angels
affiliation was highly probative to the credibility and reliability of this admission. At
trial, Zimmerman said he did not tell the truth earlier because he was the caregiver for his
younger brother and he was now motivated to tell the truth because he did not want to see
defendant—who was his good friend and "[l]ike family"—falsely accused. Based on
these statements, a jury was likely to place substantial weight on his admissions. Under
these circumstances, the evidence that Zimmerman was very fearful of defendant because
of his gang affiliation was highly relevant to permit the jury to accurately weigh and
evaluate the truth of Zimmerman's current admissions as compared to his prior denials
that he had no involvement in the stabbing.
Although the evidence showing defendant's connection to the Hells Angels carried
some risk that the jury would not view defendant's character in a favorable light, the
references to the Hells Angels were brief, and were not substantially more inflammatory
than the facts showing that the young people at the party were very afraid of defendant
and immediately wanted him to leave because of a concern he would cause trouble. The
evidence also showed defendant did in fact have a confrontation with a young woman
15
shortly after he arrived at the party. The strong probative value of the Hells Angels
evidence was not substantially outweighed by the risk of undue prejudice.
Defendant contends the court should have sanitized the evidence by presenting the
jury only with evidence that Zimmerman had previously said he was afraid of defendant
or that he knew defendant associated with bad people. However, a jury is entitled to be
apprised of not only the witness's fear, but also of pertinent facts that would enable it to
evaluate that fear. (People v. Mendoza, supra, 52 Cal.4th at p. 1085; People v. Olguin,
supra, 31 Cal.App.4th at p. 1369.) Because of the strong relevance of witness bias,
courts should permit counsel "great latitude" in developing the existence of any bias.
(People v. Evans (1952) 113 Cal.App.2d 124, 127.) A general reference to Zimmerman's
fear of defendant or his knowledge of defendant's association with persons of bad
character would have presented the jury with an incomplete and possibly confusing
factual scenario, particularly because Zimmerman testified he was good friends with
defendant and considered defendant "family."
Defendant's reliance on People v. Memory (2010) 182 Cal.App.4th 835 is
misplaced. Memory reversed a criminal conviction based on the court's improper
admission of Hells Angels gang evidence. (Id. at pp. 858-864.) However, in that case,
the trial court admitted the evidence "to show defendants had a criminal disposition to
fight with deadly force when confronted . . . ." (Id. at p. 859.) The reviewing court held
that because " '[m]embership in an organization does not lead reasonably to any inference
as to the conduct of a member on a given occasion,' " the evidence was not relevant and
instead the evidence permitted the jury to make " 'unreasonable inferences' " that the
16
defendant was guilty of the offense on the theory of " 'guilt by association.' " (Ibid.) In so
ruling, the court recognized the well-settled rule that evidence of gang membership may
be admitted when it is relevant on a ground other than to show a defendant's criminal
disposition or bad character as a means of creating an inference the defendant committed
the charged offense. (Id. at pp. 858-859.)
Memory is factually distinguishable because the trial court here admitted the Hells
Angels evidence for a proper purpose (bias and impeachment), and not as criminal
disposition evidence.
We also find unavailing defendant's reliance on People v. Cardenas (1982) 31
Cal.3d 897 and People v. Maestas (1993) 20 Cal.App.4th 1482. These decisions are
inapposite because in each case the relevance of the evidence was questionable and the
evidence was cumulative. In Cardenas, the prosecutor was allowed to impeach the
defendant's witnesses for bias by showing they all belonged to the same gang even
though their bias had already been amply established by other evidence. (Cardenas,
supra, 31 Cal.3d at p. 904.) In Maestas, two codefendants were convicted of stabbing a
man in a bar. (Maestas, supra, 20 Cal.App.4th at p. 1485.) Evidence was admitted that
the defendants belonged to the same gang. (Id. at p. 1494.) The reviewing court found
the admission of this evidence for impeachment purposes to be in error because the
evidence that the men were in a gang was weak and cumulative of other evidence
establishing a close personal relationship between defendants that was far more
compelling than the common gang membership evidence. (Id. at pp. 1494-1497.)
17
Unlike Maestas and Cardenas, the evidence here was strongly probative on an
issue central to the prosecution and defense cases. Additionally, the evidence was not
cumulative. Although the jury was aware that Zimmerman and defendant were friends
and thus that Zimmerman had a motive to testify in favor of defendant, the friendship
relationship is of a wholly different nature than the fear evidence.
Defendant argues the prejudicial effect of the Hells Angels evidence was
compounded because: (1) the prosecutor elicited testimony from two officers that they
were part of a "gang" unit; (2) a police officer testified that Hells Angels clothing was
found in defendant's backpack; and (3) the prosecutor mentioned the gang issue twice
during her closing argument. This argument does not show prejudicial error.
First, defense counsel did not object to the gang unit references or the Hells
Angels clothing. Thus, defendant waived his right to assert error on appeal. In any
event, the references to the gang unit were brief and not significant in the context of the
entire case. Because the Hells Angels evidence had already been properly admitted on a
significant issue pertaining to Zimmerman's credibility, there is no reasonable likelihood
these additional brief references would have impacted the outcome of the case. Further,
the fact that the prosecutor mentioned the Hells Angels during her closing argument was
not error. The prosecutor very briefly referred to this evidence solely in the context of
discussing Zimmerman's change of testimony. This was appropriate comment on
testimony that had been properly admitted.
Further, on our review of the entire record, we are satisfied the jury would not
have relied on the Hells Angels evidence for an improper purpose. In examining
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Zimmerman and the investigating officer regarding the prior statements, the prosecutor
asked the questions without seeking details about the Hells Angels affiliation. During
closing argument the prosecutor likewise did not highlight the Hells Angels evidence and
merely noted the fact in discussing the unreliability of Zimmerman's admissions. In his
closing argument, defense counsel admonished the jurors that the verdict should not be
based on whether they liked or approved of defendant as a person and instead on whether
the evidence proved he committed the stabbing. The jurors' written questions during trial
and deliberations support that the jury was focused on the detailed evidence of the fight
and not on defendant's character.
The admission of the Hells Angels evidence did not constitute prejudicial
evidentiary error.
II. Ineffective Assistance of Counsel Claim
A. Background
Shortly after the jury returned the guilty verdict, defendant retained a new counsel,
who then filed a new trial motion asserting various claims, including that trial counsel did
not provide constitutionally mandated effective assistance because he failed to investigate
and call exculpatory witnesses and failed to object to the evidence of the knives later
found in defendant's possession.
At the hearing on the new trial motion, defendant testified on his own behalf and
called four young men who did not testify at trial (Kinsella, Tyler Sickles, Ryan Lasky,
and Aurelio Hernandez). Defendant also called his mother to testify concerning an
19
incident where she saw trial counsel intoxicated on a Sunday. Defendant did not call his
trial counsel to testify. The following summarizes the testimony of the witnesses.
Tyler Sickles
Sickles testified that he attended the December 20 party with defendant and his
friends. He said he was in the Army, and had gone to high school with several people at
the party. He said he was the designated driver and drove defendant, Zimmerman, and
Chambers to the party. He said that Kinsella drove separately. Sickles said that he had
his eyes on defendant during the entire fight and he never saw defendant holding a knife.
Sickles did not see Zimmerman during the fighting. However, as Sickles was
leaving the party, Zimmerman jumped down from the roof area over the back door. At
that point, Zimmerman told Sickles that he had stabbed someone. Sickles saw a knife in
Zimmerman's hand. It was a folding pocketknife with a silver blade and a metallic
handle. The group (including defendant, Chambers, Kinsella, and Zimmerman) then left
the house and went to a Denny's restaurant. At Denny's, Zimmerman again said he had
stabbed someone. Sickles saw Zimmerman trying to clean the knife by wiping it off on
the restaurant booth. Sickles and Zimmerman then walked outside the restaurant.
Zimmerman told Sickles he was going to throw the knife away. Sickles replied: "Well,
if you're going to throw it away, I'll take it." Sickles thereafter moved three times and in
the process he lost Zimmerman's knife. The police did not contact Sickles, and he did not
contact them. Three or four days after the party, Sickles returned to his military base in
Washington state. He was unaware that defendant had been charged until after defendant
was convicted. Defendant's father later contacted Sickles and told him about the
20
conviction. Sickles said he would have come to court and testified if trial counsel had
contacted him. Sickles was completely sober at the party and remembered everything
clearly. No one coerced him with regard to his testimony.
Bradley Kinsella
Kinsella testified that he was at the December 20 party and is defendant's friend.
He said he drove himself to the party and met defendant and his friends at the party.
Kinsella said he was sober the entire night and was standing close to defendant during the
fight. He said he never saw defendant with a knife. But Kinsella also said he did not see
Zimmerman with a knife and was uncertain where Zimmerman was during the fighting.
Kinsella said he left the party by himself, but then he met his friends (including
Zimmerman and defendant) at the Denny's restaurant. Kinsella did not hear Zimmerman
talk about stabbing anyone, and did not see Zimmerman (or anyone else) holding a knife.
Defense counsel interviewed Kinsella but Kinsella never received a subpoena or other
notice to appear for trial.
Aurelio Hernandez
Aurelio Hernandez was acting as a security guard at the party. He was playing
beer pong when the fight broke out and did not see the fight. However, when he heard
"someone [getting] slammed into the table," he "ran over there to break it up . . . ." He
said he never saw defendant with a knife in his hands. He also did not see Zimmerman
with a knife.
Hernandez said that at the party he was intoxicated and high on marijuana, and
that he did not have a clear recollection of the events. But Hernandez recalled that Oelke
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was "[p]retty drunk or, like, almost drunk." When the court asked him to be specific as to
how he knew she was drunk he said, "I just—I don't know. We were at a party. At lot of
people had cups in their hands." He also said he saw Oelke "sip" from her cup. When
the court asked what he saw Oelke doing, Hernandez responded "She was—most of the
time . . . where everybody was dancing, and then I don't know. Everybody was partying,
having fun."
Hernandez also admitted that he has a criminal history, including "vandalism,"
"fighting," and possession of a controlled substance (ecstasy). Hernandez testified that he
knows that defendant carries knives; defendant has been involved in previous fights; and
defendant gets upset easily. Defense trial counsel contacted him, and he spoke with
counsel. He had previously told the police that everyone was saying that defendant was
the person who stabbed the victim at the party.
Ryan Lasky
Lasky attended the December 20 party, but did not see the fight until the very end.
Lasky never saw defendant with a knife, and he did not remember seeing Zimmerman at
the party. Lasky testified that although he did not remember seeing Oelke at the party, he
has seen Oelke "pretty drunk before" and that at parties "most of the time she'd be pretty
drunk." He was never interviewed by police officers or defense counsel.
Defendant
Defendant testified that he met with his retained trial attorney, Frederick Carroll,
approximately six times before trial. About one month before trial Carroll asked him
about potential witnesses. Defendant gave his counsel six names, but at the new trial
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motion hearing he remembered only identifying Kinsella, Hernandez, and Chambers.
Although at one point defendant said he also provided his counsel with Sickles's name, he
later indicated he was not sure if he had identified Sickles as a possible witness.
Defendant also testified that Carroll twice took him out to a bar‐restaurant and
they got drunk after meeting to discuss the case. Defendant said that Carroll did not
discuss strategy with him, did not discuss the information in the police reports, and never
provided any strategic reason for why he would not want to call defendant's other friends
at trial. Counsel said only that his strategy would be to cross‐examine the prosecution
witnesses and to be nice to the prosecutor. Carroll said he had mailed Kinsella a
subpoena for trial. Although at the new trial motion hearing defendant denied that he
stabbed Wilson, he acknowledged that he told his counsel he did not want to testify at
trial.
Defendant's Mother
Defendant's mother testified that she went to counsel's office on a Sunday at about
noon to make a payment, and counsel was intoxicated. Counsel acknowledged that he
had been drinking and said that a baseball game was starting soon. Counsel later sent
defendant's mother a text message, in which he apologized for being drunk and said that
she was the inspiration for his decision to quit drinking. When defendant's mother asked
counsel about locating witnesses, he told her to "trust him" and to "stop worrying so
much."
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B. Court's Ruling
At the completion of this evidence and argument, the court denied the new trial
motion and provided a lengthy explanation of its ruling. In summary, the court found
that with respect to each witness: (1) counsel did not know about, and had no reasonable
basis to identify, the particular witness; or (2) there were tactical reasons for defense
counsel's decision not to call the witnesses. The court also found the verdict would not
have been different if the newly proffered witnesses had testified. The court additionally
concluded that counsel's failure to object to the admission of the knives did not establish
ineffective assistance because the evidence was relevant to the issue regarding
defendant's opportunity to commit the offense and the court would not have exercised its
discretion to exclude the evidence if defense counsel had raised the issue at trial.
With respect to the evidence suggesting that trial counsel had been intoxicated
when meeting with defendant and his mother, the court stated:
"It is disturbing to me, . . . to hear the testimony regarding [defense trial counsel] meeting with either the defendant or his mother after drinking alcohol and being drunk. . . . [B]ut there has been no evidence presented that there was any influence of alcohol in his actual representation or presentation at the time of trial. I obviously did observe the trial, and I saw no evidence of him being intoxicated or even close during the course of the trial.
"It was the first time that [defense trial counsel] had ever appeared in front of me, and my impression at the end of the trial, quite frankly, was that he had done a good job. He did not just sit there like a lump on a log. He cross-examined all the witnesses. He impeached the victim with the preliminary hearing transcript. He was aware and listening and paying attention and doing his job, from what I could perceive. He argued the case appropriately. I wasn't quite sure what the jury was going to do. And I can't say from my
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observations of Mr. Carroll that I noted any incompetence on his part."
C. Applicable Law
Ineffective assistance of counsel is a valid ground for a new trial. (People v.
Fosselman (1983) 33 Cal.3d 572, 582-583.) Upon appeal from the denial of a new trial
motion based on a claim of ineffective assistance, we defer to the trial court's factual
findings if supported by substantial evidence, and we exercise de novo review over the
ultimate issue of whether defendant's constitutional rights were violated. (People v.
Taylor (1984) 162 Cal.App.3d 720, 724-725.)
To establish a claim of ineffective assistance of counsel, a defendant must show:
(1) trial counsel's performance fell below an objective standard of reasonableness under
prevailing professional norms; and (2) the defendant suffered prejudice, i.e., 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,
687-688, 694 (Strickland); People v. Carter (2003) 30 Cal.4th 1166, 1211 (Carter).) "A
reasonable probability is a probability sufficient to undermine confidence in the
outcome." (Strickland at p. 694; Carter at p. 1211.) A counsel's deficient performance
results "in prejudice to defendant in the sense that it 'so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having
produced a just result.' " (People v. Andrade (2000) 79 Cal.App.4th 651, 659-660.) "A
defendant must prove prejudice that is a ' "demonstrable reality," not simply speculation.'
[Citation.]" (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
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In examining whether a defendant met his burden on the first prong, we give great
deference to counsel's reasonable tactical decisions. (People v. Hinton (2006) 37 Cal.4th
839, 876.) A defendant must establish that the challenged act or omission did not result
from an informed tactical choice within the range of reasonable competence. (People v.
Pope (1979) 23 Cal.3d 412, 425.) There is a strong presumption that counsel's conduct
falls within the wide range of reasonable professional assistance, and to rebut this
presumption the record must affirmatively disclose that counsel had no rational tactical
purpose for his or her act or omission. (Ibid.; People v. Jones (2003) 29 Cal.4th 1229,
1254.) "[I]f the record contains no explanation for the challenged behavior, [the] court
[must] reject the claim of ineffective assistance 'unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no satisfactory