California Court of Appeal Feb 29, 2016 No. E062619Unpublished
Filed 2/29/16 P. v. Cowans CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E062619
v. (Super.Ct.No. FVI1402380)
JOHN PIERRE COWANS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Debra Harris,
Judge. Affirmed.
Esther K. Hong, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Steve
Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant John Pierre Cowans appeals his conviction on one count of robbery and
one count of possession of a firearm by a felon. He contends that his trial attorney
provided constitutionally inadequate representation because she failed to object to law
enforcement testimony concerning prior consistent and inconsistent statements made by
the victim and her sister, who was a percipient witness.
We will affirm the judgment.
PROCEDURAL HISTORY
Defendant was convicted of second degree robbery (Pen. Code, § 211) and
possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)). The jury found true
the allegation that defendant was armed with a firearm in the commission of the robbery.
(Pen. Code, § 12022, subd. (a).) Defendant waived his right to a jury trial on a prior
conviction allegation and admitted that he had suffered a prior strike conviction (Pen
Code, § 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), which also constituted a prior serious
felony (Pen. Code, §§ 667, subd. (a)).
The court sentenced defendant to a total term of 16 years in state prison.
Defendant filed a timely notice of appeal.
FACTS
On June 24, 2014, 12-year-old A.T. and her sister, A.M., who was then 16 or 17
years old, were sitting on some rocks near their residence on Rimrock Road in Apple
Valley. They had just purchased several items of snack food, which were in a black
plastic bag along with a pink drinking cup, a cell phone and a phone charger. Defendant
approached them on a bicycle. Both girls had seen him before, and in fact A.M. had
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borrowed $20 from him that morning in order to purchase the snack food items and she
had previously ridden his bicycle. Defendant stopped about five feet away from the girls.
He said, “Give me the bag.” A.T., who had the bag in her hand, gave it to him. She
could see that he had a gun in the front of the waistband of his pants. A.M. also saw the
gun. Defendant did not put his hand on the gun but may have pulled his shirt up to
display it. Both girls were afraid, and after A.T. gave him the bag, they both ran away.
Defendant was apprehended a short while later at a nearby store. His bicycle was
parked outside the store and the black plastic bag containing the items the girls had
described was on the handlebars. The gun was not visible but was found in the front
waistband of defendant’s pants. The gun was not loaded.
LEGAL ANALYSIS
DEFENDANT HAS NOT SHOWN THAT HIS ATTORNEY’S
PERFORMANCE WAS DEFICIENT
Defendant contends that his right under the state and federal constitutions to the
effective assistance of trial counsel was violated because his attorney failed to object to
the testimony of Deputy Ponce, who took the girls’ statements after the incident. He
contends that to the extent that Deputy Ponce’s description of the statements the
witnesses made to him was consistent with their trial testimony, it was inadmissible
hearsay because it did not meet the criteria of Evidence Code section 1236. He contends
that to the extent Deputy Ponce’s testimony showed prior inconsistent statements by
either witness, his testimony did not meet the criteria of Evidence Code section 1235. He
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contends it should also have been excluded under Evidence Code section 352 as more
prejudicial than probative.
To demonstrate ineffective assistance of counsel, defendant must show both that
counsel’s representation fell below an objective standard of reasonableness under
prevailing professional norms, and that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result would have been different. (Strickland v.
Washington (1984) 466 U.S. 668, 687.) A reviewing court must afford great deference to
trial counsel’s actions and must presume that the challenged actions constituted sound
trial strategy. (Id. at p. 689.) The California Supreme Court has “repeatedly stressed
‘that “[if] the record on appeal sheds no light on why counsel acted or failed to act in the
manner challenged[,] . . . unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory explanation,” the claim on
appeal must be rejected.’ [Citations.]” (People v. Mendoza Tello (1997) 15 Cal.4th 264,
266.) Here, defense counsel was not asked why she did not object to the challenged
testimony, and defendant has not met his burden of demonstrating that there simply could
not be any rational tactical reason for failing to object. “‘[D]eciding whether to object is
inherently tactical, and the failure to object will rarely establish ineffective assistance.’
[Citation.]” (People v. Carrasco (2014) 59 Cal.4th 924, 985.) Defendant’s remedy, if
any, lies in a petition for a writ of habeas corpus. (People v. Mendoza Tello, at p. 267.)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J. We concur:
RAMIREZ P. J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant failed to demonstrate ineffective assistance of counsel because he did not show that his attorney's failure to object to testimony lacked a rational tactical basis.
Issues
Whether trial counsel provided constitutionally inadequate representation by failing to object to law enforcement testimony regarding prior consistent and inconsistent statements of witnesses.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“To demonstrate ineffective assistance of counsel, defendant must show both that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms”
“‘[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.’”