Filed 5/5/15 P. v. Thomas CA6
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039990
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1102315)

         v.

MARK RENEE THOMAS,

         Defendant and Appellant.



         Defendant Mark Renee Thomas appeals from a judgment of conviction entered
after a jury found him guilty of five counts of second degree robbery (Pen. Code, §§ 211,
212.5, subd. (c).) The jury also found that defendant personally used a handgun during
the commission of each robbery. (Pen. Code, § 12022.53, subd. (b).) In a bifurcated
trial, the court found true the allegations that defendant had three prior strike convictions
(Pen. Code, §§ 667, subds. (b)-(i), 1170.12), one prior serious felony conviction (Pen.
Code, § 667, subd. (a)), and one prior prison term (Pen. Code, § 667.5, subd. (b)). The
trial court sentenced defendant to an indeterminate term of 125 years to life, which was
consecutive to a determinate term of 75 years. On appeal, defendant contends that his
trial counsel rendered ineffective assistance by failing to file an in limine motion to
exclude the testimony of a wireless phone expert on Kelly1 grounds and by failing to call
his own expert witness. We conclude that defendant was not deprived of the effective
assistance of counsel and affirm the judgment.2


                                   I. Statement of Facts
                                    A. Prosecution Case
      At about 9:00 p.m. on March 23, 2009, Nelson Martinez, Omar Nava Carrillo,
Raul Martinez, Marisela Maria Mercado Vargas, and Maria Del Pilar Garduno were
working at a Burger King restaurant in San Jose when two armed men entered. One of
them pushed Carrillo towards the office and demanded money from the safe. Carrillo
gave him $7,930. According to Carrillo, this robber was wearing black pants, a blue
sweatshirt, and gloves. Though Carrillo could not see the robbers’ faces, he described
their skin as “dark.” Neither robber was wearing a hat.
      The other robber grabbed Raul’s3 back, led him to the cash register, and told him
to open it. According to Raul, the robber’s face was covered, and he was wearing gloves
and a black jacket. When Raul was unable to open the cash register, the robber
demanded Raul’s wallet. Raul gave him his wallet, which contained $400. The robber
then told Raul to go to the back of the restaurant. Garduno saw the armed robber behind
Raul, but could not see his face. The robber ordered Garduno, Nelson, and Vargas to go
to the back of the restaurant. According to Nelson, the robbers were wearing long, black
rain coats and dark blue or black pants. He could not tell what race they were, but they


1
       People v. Kelly (1976) 17 Cal.3d 24 (Kelly), abrogated by statute on another point
as explained in People v. Wilkinson (2004) 33 Cal.4th 821, 845-848.
2
       Defendant has also filed a petition for writ of habeas corpus. We have ordered the
petition for writ of habeas corpus to be considered with his appeal. We dispose of the
petition for writ of habeas corpus by separate order.
3
       We refer to Raul Martinez and Nelson Martinez by their first names to avoid
confusion.
                                            2
were taller than he was, and big and “more robust.” Vargas did not know the race of the
robbers.4 They were both wearing a black, hooded sweatshirt or jacket, and gloves.
       Brandon Doe and Jesus Cuevas were in their car at the drive-thru window of the
Burger King when the robbery occurred. After Garduno gave Brandon part of his order,
he saw a masked man pointing a gun at her. The robber then pushed Garduno to the next
room and ripped the phone off the wall. Brandon called 911. While talking to the 911
operator, Brandon saw the two robbers exit the restaurant. As Brandon followed them in
his van, the robbers ran to a Pontiac Grand Prix which was parked in a red zone. After
the robbers jumped into the car, it took off. Brandon followed the car onto the
northbound freeway.
       As Brandon was following the car, he gave dispatch the license plate number. The
car eventually exited the freeway and stopped abruptly on the shoulder of the off-ramp.
Brandon went around the car and stopped in front of it. Two doors opened, and two
people exited the car and ran through the ivy patch. After the car continued down the off-
ramp and entered a gas station, Brandon followed. Ellamae Daigle exited the car and
asked Brandon why he was following her. He replied, “You know why I’m following
you. The police are on their way.” The police arrived a minute later. They searched the
ivy patch, but they were unable to locate the robbers.
       According to Brandon, the robbers were African American and similarly dressed,
though one wore a hood while the other wore a beanie. Cuevas described them as
African American men who were wearing dark clothing with a hooded top.
       When Lieutenant Keith Miller responded to the scene, he observed Daigle talking
on her cell phone outside her car. He arrested Daigle. Lieutenant Jason Ta searched
Daigle’s cell phone and found defendant’s phone number. He also searched the car and
found a black beanie cap in the front passenger seat.

4
      On the night of the robbery, Nelson told Officer Donald Guerra that the robbers
were African American men.
                                             3
       Cathleen Trowbridge, a criminalist, testified as an expert in the area of forensic
analysis of DNA and identification of persons. The results of a DNA test of the beanie
showed that defendant was a potential contributor. According to Trowbridge, “[t]he
probability that somebody who didn’t leave any DNA on that hat, still being considered a
potential contributor [was] . . . one in 300 billion in the African American population, one
in 1.2 trillion in the Caucasian population, and one in 5.6 trillion in the Hispanic
population.”
       On August 5, 2009, Lieutenant Miller went to Gesiele Thomas’s apartment to look
for defendant. Thomas was defendant’s cousin and lived near the Burger King that was
robbed. Lieutenant Miller told Thomas that he had a warrant for defendant’s arrest and
asked if she knew about it. She responded that “family talk was that he had got in
trouble . . . with that girl.” Lieutenant Miller asked if he could search her residence. She
consented to the search, but defendant was not there. He also asked her whether she had
received a phone call from defendant. She eventually said that defendant called her that
night when he “got in trouble . . . .” Thomas told him that she received a call from
defendant around 11:00 p.m. and “he had told her he had been in trouble with the girl and
wanted someplace to go. And she told him, that he was not welcome at her apartment.”
Defendant also told her that “he was going to have to go on the run and not to call him on
his cell phone.” Thomas also stated that she had not seen defendant since March.
       Lieutenant Miller reviewed defendant’s phone records. Defendant called Thomas
at 12:49 a.m. on March 24, 2009, for one minute and 39 seconds. There were also more
than 10 calls from defendant to his sister Mary Magee on the evening of the robbery.
       At trial, Thomas did not remember the details of the interview with Lieutenant
Miller or phone calls from either defendant or his sister on March 23, 2009. Magee could
not remember at trial whether she had received phone calls from defendant on the night
of the robbery.


                                              4
       While defendant was in jail awaiting trial, he called Magee.5 During the
May 26, 2011 phone call, he asked Magee to contact Thomas and ask her to tell the
police that he was at Thomas’s house on the night of the robbery. In a conversation in
December 2011, defendant and Magee referred to the preliminary hearing and Thomas’s
potential testimony. Magee understood that when defendant referred to the girl, he was
referring to Daigle.
       Jim Cook testified as an expert in the area of cellular technology and cell phone
records analysis. After reviewing the subscriber information related to the cell phones of
defendant and Daigle, he testified regarding their location based on the connection
between their cell phones and the closest cell tower sites when the calls were initiated on
the night of the robbery. Defendant’s cell phone records showed that he was in the area
of his residence and Daigle’s residence in Palo Alto from 12:45 p.m. through 8:03 p.m.
Defendant arrived in the area of the crime scene at 8:45 p.m. Defendant was in the area
of the crime scene from 8:45 p.m. through 12: 54 a.m. and he placed and received 26
calls. There were four calls to and from Daigle, 10 calls to and from Magee, and two
calls to and from Thomas. Daigle’s cell phone records showed that she began traveling
from Palo Alto toward the area of the crime scene at 8:11 p.m. Daigle made cell phone
calls in the area of the crime scene, the getaway route, and the arrest site between 8:44
p.m. to 11:04 p.m. Defendant’s cell phone records showed defendant called Magee six
times between 11:57 p.m. and 12:46 a.m. on the night of the robbery. At 11:58 p.m.,
Magee’s cell phone connected to a cell tower site near her residence. After Magee
received a call from defendant at 12:36 a.m., she traveled from her residence to the area
of the crime scene. While in the area of the crime scene, she received five more calls
from defendant. At 1:23 a.m., Magee traveled toward defendant’s residence as she
placed a call to him.

5
       Three of the taped conversations between defendant and Magee were played for
the jury.
                                             5
          On cross-examination, Cook conceded that his analysis did not reveal the identity
of the person holding the cell phone when the call was made. Cook also acknowledged
that he was unable to determine whether a cell tower site was not functioning in 2012.
Thus, the cell phone records would not disclose whether a particular cell phone connected
to the next closest cell tower site, thereby inaccurately indicating the location of the cell
phone.
          The parties stipulated that the prosecution called Daigle as a witness in this case.
She refused to testify and was held in contempt outside the presence of the jury.


                                          B. Defense Case
          Officer Brian Egan investigated a robbery, which occurred on February 10, 2009,
at an art supply store in Mountain View. During the investigation, he discovered that a
car, which was associated with this robbery, was registered to Rekeshia Duffy, Daigle’s
daughter. At the time of trial in the present case, the art store robbery remained unsolved.
Lieutenant Jeffrey Sato also participated in the art store robbery investigation. During a
search of Duffy’s vehicle, he “found the front sight of a Glock handgun.” The vehicle
was released to Daigle on March 6, 2009.


                                           II. Discussion
          Defendant contends that his trial counsel rendered ineffective assistance when he
failed to file a motion in limine to exclude Cook’s testimony on Kelly grounds. He also
contends that trial counsel’s performance was deficient, because he failed to: (1)
challenge Cook’s qualifications; (2) request that the prosecutor provide a proffer of the
testimony; (3) move to strike at the conclusion of direct testimony; and (4) call his own
expert.
          “Under both the Sixth Amendment to the United States Constitution and article I,
section 15, of the California Constitution, a criminal defendant has the right to the
                                                 6
assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) That right
“entitles the defendant not to some bare assistance but rather to effective assistance.”
(Ibid.) But the “Sixth Amendment guarantees reasonable competence, not perfect
advocacy judged with the benefit of hindsight.” (Yarborough v. Gentry (2003) 540 U.S.
1, 8.)
         “To prevail on a claim of ineffective assistance of counsel, a defendant must show
both that counsel’s performance was deficient and that the deficient performance
prejudiced the defense. [Citations.] Counsel’s performance was deficient if the
representation fell below an objective standard of reasonableness under prevailing
professional norms. [Citation.] Prejudice exists where there is a reasonable probability
that, but for counsel’s errors, the result of the proceeding would have been different.
[Citation.]” (People v. Benavides (2005) 35 Cal.4th 69, 92-93.)
         Pursuant to the Kelly rule, “the proponent of evidence derived from a new
scientific methodology must satisfy three prongs, by showing, first, that the reliability of
the new technique has gained general acceptance in the relevant scientific community,
second, that the expert testifying to that effect is qualified to do so, and, third, that
‘ “correct scientific procedures were used in the particular case.” ’ ” (People v. Roybal
(1998) 19 Cal.4th 481, 505.)
         When trial counsel reasonably determines that filing a motion would be futile, his
failure to do so does not constitute deficient performance. (People v. Price (1991) 1
Cal.4th 324, 387, superseded by statute on other grounds in People v. Hinks (1997) 58
Cal.App.4th 1157, 1161-1165.) Here, as the Attorney General points out, the cell tower
tracking technique had been widely accepted and admitted into evidence in courts
throughout the nation at the time of defendant’s trial in January 2013. (See, e.g., People
v. Martin (2002) 98 Cal.App.4th 408, 412 [prosecutor “relied on [the defendant’s] cell
phone records to establish his location during the crucial time period”]; People v. Vu
(2006) 143 Cal.App.4th 1009, 1016-1017 [prosecutor relied on cell phone records to
                                                7
establish the locations of defendant’s accomplices]; United States v. Dhinsa (2d Cir.
2001) 243 F.3d 635, 661 [cell phone records confirmed the defendant’s presence in the
area where the victim was murdered]; Pullin v. State (Ga. 2000) 534 S.E.2d 69, 71
[Georgia Supreme Court concluded that evidence supported the finding that “sound
scientific theory” supported the use of cell phone records to establish the location of
calls]; State v. Tran (Minn. 2006) 712 N.W.2d 540, 543-545 [cell phone records showed
that the defendant was in the victim’s neighborhood when the murder occurred]; Wilson
v. State (Tex.Ct.App. 2006) 195 S.W.3d 193, 196-197 [cell phone records showed the
defendant “traveling from the vicinity of his residence to the victim’s residence during
the time period in question”]; and Pantazes v. State (Md.Ct.App. 2001) 785 A.2d 865,
872 [cell phone records suggested that call from victim’s phone to the defendant’s phone
not made from the victim’s home].) Since a reasonably competent attorney would have
concluded that a challenge to the cell tower tracking evidence on Kelly grounds was
futile, defendant has failed to show that trial counsel’s performance was deficient.6
       Even assuming that defendant has shown that trial counsel’s performance was
deficient because he failed to challenge Cook’s testimony and to call his own expert
witness, he has failed to show prejudice. The evidence against defendant was very
strong. Three eyewitnesses identified the robbers as African American men. One of the
eyewitnesses testified that one of the robbers wore a beanie, and defendant’s DNA was
found on a beanie in the getaway car. Defendant had extensive phone contact with the
driver of the getaway car and his sister on the night of the robbery. He also spoke with
his sister from jail and attempted to fabricate an alibi. Moreover, defendant told his
cousin on the night of the robbery that he was on the run and was in “trouble with that

6
        Defendant also claims ineffective assistance of counsel based on trial counsel’s
failure to: (1) challenge Cook’s qualifications on the subject; (2) move to strike Cook’s
testimony; (3) cross-examine Cook on the limits of single-tower methodology; and (4)
call a defense expert. As previously stated, since cell tower tracking technique had been
widely accepted at the time of defendant’s trial, we reject these claims.
                                             8
girl.” Thus, it is not reasonably probable that appellant would have received a more
favorable outcome if trial counsel had successfully objected to the cell tower tracking
evidence or called his own expert witness.


                                     III.    Disposition
       The judgment is affirmed.




                                             9
                                   _______________________________
                                   Mihara, J.



WE CONCUR:




______________________________
Bamattre-Manoukian, Acting P. J.




______________________________
Grover, J.




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