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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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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