California Court of Appeal May 10, 2016 No. D067702Unpublished
Filed 5/10/16 P. v. Alkhafaji CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D067702
Plaintiff and Respondent,
v. (Super. Ct. No. SCE332398)
ALI LATEF ALKHAFAJI,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, John M.
Thompson, Judge. Affirmed.
Sylvia W. Beckham, 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. Swensen and Felicity A.
Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Ali Latef Alkhafaji (Appellant) of one count of evading a police
officer with reckless driving (Veh. Code, § 2800.2).1 Appellant admitted one
serious/violent felony prior conviction (Pen. Code,2 § 667, subds. (b)-(i)). He also
admitted three prison priors (§ 667.5, subd. (b)).
The court denied a motion to strike the serious/violent felony prior conviction.
The court did strike one of the prison priors and sentenced Appellant to a determinate
Appellant appeals contending his trial counsel was ineffective for failure to object
to a statement by one of the parole officers that they were aware Appellant had fled from
police before. Given the state of the record we will find Appellant has not met his burden
to show trial counsel was ineffective. Accordingly, we will affirm the judgment.
STATEMENT OF FACTS
The facts of the offense are not in dispute. Accordingly, we will adopt Appellant's
statement of facts as an accurate and helpful summary of the evidence.
A warrant was issued for Alkhafaji's arrest by his parole agent. A parole agent,
Chris Morris, cross-sworn as a member of the U.S. Marshal's Fugitive Task Force,
conducted an investigation seeking information on Alkhafaji's likely whereabouts.
Surveillance was conducted at a location of a drug treatment program (McAlister
1 Appellant was also convicted in two other pending cases tried immediately before this case. Appellant has not appealed from those convictions thus we will not discuss them in this opinion.
2 All further statutory references are to the Penal Code unless otherwise specified. 2
Institute) in a building at 1100 Johnson Avenue in El Cajon. Alkhafaji's girlfriend, Dasha
Elkerton, was on probation and enrolled in the program there. On July 30, Morris
worked at that location in plain clothes with fellow agent Steve Cornwell. Morris
observed Elkerton outside of the building in an area of trees, while she was on a break
from the program.
On a hunch Alkhafaji would come to the area to pick up Elkerton at the end of the
treatment session, Morris returned with reinforcements. Morris parked his car in the
parking lot. A purple or maroon Mitsubishi backed into the adjacent parking stall.
Alkhafaji was seated in the driver's seat, and he kept the motor running. Morris was
concerned that Alkhafaji might flee if he realized he was under surveillance. Morris
turned off his radio, and removed his weapon and badge from his person to avoid
Alkhafaji possibly identifying Morris as a law enforcement agent.
Morris got out and went into a graphic design shop because it was the shop closest
to where he parked his vehicle that was open for business. As Alkhafaji remained seated
in his vehicle, Morris called Cornwell and alerted him to Alkhafaji's presence, and
provided a description and location of the Mitsubishi. Alkhafaji drove away. The agents
initially decided to follow Alkhafaji, but not having enough reinforcing officers to back
them up for an arrest, it was decided to wait for more officers, and hope that Alkhafaji
would return to pick up Elkerton.
Officers from the El Cajon Police Department were summoned to assist, as were
agents from the California Parolee Apprehension Team, and California Highway Patrol,
as Morris maintained surveillance from the graphic design business. Morris thought the
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plan was to wait for Alkhafaji to park his vehicle, and then black and white patrol
vehicles would enter from each entrance and park as close as possible to Alkhafaji, and
arrest him. Gathered two blocks away, officers from various agencies devised a plan to
simply block the two entrances of the parking lot so that Alkhafaji could not exit the
parking lot.
At the time the program meeting concluded, Elkerton came out of the building and
went to the same area where she earlier rested on her break. She seemed to be
communicating on her cell phone, and pacing back and forth. Alkhafaji was observed
traveling toward the direction of the McAlister Institute. Alkhafaji drove into the L-
shaped parking lot, entering by way of the Johnson Avenue driveway. He drove past the
graphic design business, and headed toward the Steele Street driveway. Rather than
parking, Alkhafaji stopped his vehicle in the aisle between parking spaces to let Elkerton
get into his vehicle. Morris directed the officers in the black and white patrol vehicles to
"move in." After Elkerton got into the Mitsubishi, Alkhafaji headed toward the Steele
Street driveway.
El Cajon police officer Brandon Stanley was partnered with Officer Kenneth Gray.
Stanley drove a Ford Crown Victoria marked El Cajon police vehicle, but it was a "slick
top" (lights and sirens not on the roof of the vehicle). Stanley entered the parking lot
ahead of his sergeant. Sergeant Winslow drove a black and white Chevy Tahoe SUV
marked police vehicle with overhead emergency lights, and at least one forward-facing
red light. Winslow positioned the SUV police vehicle across the Steele Street driveway
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to block Alkhafaji from exiting. Stanley stopped his vehicle nose to nose with the
Mitsubishi.
Officers Stanley and Gray exited and stood behind their doors. They drew their
sidearms in an attempt to effectuate a "hot stop" arrest. They yelled loudly at Alkhafaji to
turn the vehicle off, and get out of the vehicle. Winslow positioned his vehicle in a gap
between the slick top and parked cars where Alkhafaji might be able to drive past the
slick top. Alkhafaji made eye contact with Stanley and Gray and ducked down. He
revved the motor, put his vehicle into reverse gear, and backed up rapidly through the
populated parking lot into an area of trees. The Mitsubishi did not strike any tree, object,
or person.
As Stanley and Gray got back into their vehicle, Winslow drove the marked SUV
around the slick top and followed Alkhafaji nose to nose, with overhead lights and siren
activated. Alkhafaji stopped briefly as he switched to a forward gear and turned to the
left driving toward the other driveway. There was screeching of tires, and a collision
between the patrol SUV and the Mitsubishi as Alkhafaji proceeded while Winslow
attempted to block Alkhafaji. There was property damage to the police SUV caused by
the collision.
Alkhafaji drove rapidly through the parking lot toward the Johnson Avenue
driveway, estimated speed between 30 and 35 miles per hour, seeming to have the
accelerator pedal "floored." Winslow followed with lights and siren activated, while
Stanley and Gray followed behind Winslow with the forward facing LED lights of the
slick top activated. Parole agent Morris was in the parking lot with his firearm drawn as
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he repeatedly yelled, "Let me see your hands." Alkhafaji made eye contact with Morris,
and hunkered down low in his seat as he attempted to drive away from Morris. Morris
loudly shouted repeatedly for Alkhafaji to "stop." Alkhafaji sped away through the
parking lot toward the Johnson Avenue driveway which lay between two landscaped
areas. If Alkhafaji had not maneuvered his vehicle to avoid Morris, Morris probably
would have shot him to prevent being struck by the Mitsubishi.
A CHP vehicle was parked at an angle across most of the Johnson Avenue
driveway. CHP Officer Jerry Page was putting his K-9 partner into the back seat, and he
stood in between his vehicle parked across the driveway, and the oncoming Mitsubishi
driven by Alkhafaji. The Mitsubishi sped toward one end of the patrol vehicle where
there was a gap between the vehicle and the edge of the driveway. Alkhafaji continued to
accelerate.
As Alkhafaji approached Officer Page, Page fired four gunshots. Three bullets
penetrated the Mitsubishi's windshield. Alkhafaji was wearing a hat with a flat bill. He
wore the hat on the back of his head with the bill pointing up. It would be later
discovered that a bullet pierced the hat bill.
Stanley heard the sound of another collision as Alkhafaji drove his vehicle around
the CHP vehicle, and through a planted landscape area, over the curb, and out onto
Johnson Avenue. There was property damage to the planter, curb, and street surface.
Vehicles traveling in the traffic lanes stopped to avoid collisions, as Alkhafaji crossed all
four lanes of the roadway, and entered the driveway for industrial buildings on the other
side of Johnson Avenue. He drove away westbound, with the El Cajon Police
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Department and CHP patrol vehicles in pursuit, followed by undercover agents in
unmarked vehicles. Alkhafaji was pursed through the industrial park, across Vernon, and
into a parking lot for commercial buildings off of Vernon.
When the Mitsubishi hit the street from the curb at Vernon, the glass broke out of
the driver's door. Alkhafaji progressively increased speed as he was pursued. Alkhafaji
parked the Mitsubishi in the parking lot of a warehouse type of business. He parked
behind a gate, which obscured view of the Mitsubishi; then he fled on foot. After
attempting to call Alkhafaji out from the Mitsubishi to no avail, officers walked around
the gate and discovered that Elkerton was still in the Mitsubishi alone. The driver's door
was open, and Alkhafaji left behind the hat that he had been wearing.
Numerous employees from the business were present, and some pointed out the
direction Alkhafaji ran. A perimeter was set up and a slow methodical search was
conducted. All available units from the city and county responded, and additional K-9
officers were deployed as well as a helicopter. Alkhafaji was found approximately four
hours later by a K-9 officer searching in an area flagged by reporting parties. When
found, Alkhafaji was hiding underneath a parked truck in an MTS bus yard on Gable
Way.
DISCUSSION
During the testimony of parole agent Chris Morris he explained the planning that
went into the attempt to apprehend Appellant, for whom a warrant had been issued.
Morris explained the numbers of officers and plan to watch Appellant without alerting
him was based on his review of the record that Appellant was likely to flee. There was
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no objection to the answer. Later the prosecutor said in argument that Appellant had a
history of running from police, again without objection. Prior to trial, defense counsel
had been successful in excluding six prior incidents where Appellant had fled from
police.
Appellant contends his trial counsel was ineffective and the two references
amounted to inadmissible "propensity evidence." He claims those statements denied him
a fair trial and counsel was indisputably ineffective for failing to object. As we will
explain, this record does not explain why counsel did not object. Further, defense
counsel appeared to have a defined strategy to convince the jury Appellant fled because
he was afraid of the officers who were shooting at him and that he was not reckless in his
driving. Given the overwhelming evidence of wild, reckless driving to avoid capture by
police in marked vehicles with emergency lights activated, we are satisfied Appellant has
not shown prejudice, even if we assumed an error on the part of trial counsel.
A. Legal Principles
When a defendant claims trial counsel has been constitutionally ineffective the
defendant must make the showing required by Strickland v. Washington (1984) 466 U.S.
668 (Strickland). Strickland requires that the defendant show trial counsel's performance
fell below acceptable standards, in other words counsel erred by commission or omission.
In addition to showing error, the defendant must show that in the absence of the error it is
reasonably likely that a different result would have been reached. (Id. at p. 687.)
In reviewing claims of error by trial counsel, where there is an unexplained
omission, an appellant can meet the Strickland standard only "if the record on appeal
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demonstrates there could be no rational tactical purpose for counsel's omissions."
(People v. Lucas (1995) 12 Cal.4th 415, 442.) When we evaluate the performance of trial
counsel we are required to presume, in the absence of other evidence, that counsel's
conduct falls within the wide range of professional assistance. (People v. Vines (2011) 51
Cal.4th 830, 876.)
Even if an error is discovered, an appellant must meet the Strickland prejudice
standard. "[Appellant] must carry his burden of proving prejudice as a 'demonstrable
reality,' not simply speculation as to the effect of the errors and omissions of counsel."
(People v. Williams (1988) 44 Cal.3d 883, 937.)
In People v. Mendoza Tello (1997) 15 Cal.4th 264, 267-268 the court noted that it
is often difficult to tell, from a silent record, whether the failure by counsel to take some
action constitutes ineffective performance. As the court observed in such cases it is often
necessary to resolve such issues on habeas corpus, where a record can be developed.
B. Analysis
Starting with the question of why counsel did not object, we of course do not have
an answer in this record. We do know the parole and police authorities assembled a
formidable team of multiple officers, agencies and even a helicopter in their effort to
apprehend Appellant. Even without the parole agent's statement, it would appear they
thought him likely to flee, which of course he did upon confronting police.
More importantly, however, it appears the defense tactic was to appeal to the jury
on the specific intent issue by contending Appellant fled, because he feared the gun-
toting, and shooting police. Indeed, his view was a reasonable person might do that.
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Counsel argued Appellant was cautious in his efforts to escape, thus he did not commit
felony evasion, because he was not reckless. That the tactical decision did not work, does
not render the approach of defense counsel unreasonable. In any event, there is nothing
in this record to indicate that trial counsel was not competent, or well prepared. If such
facts exist, they will have to be developed in an appropriate habeas proceeding.
Finally, the record before us, including video of the pursuit and the cars into which
Appellant crashed, presents overwhelming proof of guilt. We find nothing in this record
that could possibly support a finding that a different result would have been likely if the
two statements had not been admitted. Appellant has not met his burden of showing
ineffective assistance of counsel under the Sixth Amendment.
DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
NARES, J.
10
AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant failed to establish ineffective assistance of counsel because the record did not demonstrate the absence of a rational tactical purpose for the omissions, and the defendant failed to show prejudice given the overwhelming evidence of guilt.
Issues
Whether trial counsel was ineffective for failing to object to testimony and argument regarding the defendant's prior history of fleeing from police.
Whether the defendant suffered prejudice from the admission of evidence regarding his prior history of fleeing from police.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Given the state of the record we will find Appellant has not met his burden to show trial counsel was ineffective.”
“[Appellant] must carry his burden of proving prejudice as a 'demonstrable reality,' not simply speculation as to the effect of the errors and omissions of counsel.”
“We find nothing in this record that could possibly support a finding that a different result would have been likely if the two statements had not been admitted.”