Filed 9/12/13 P. v. Perez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     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,                                       E055082

v.                                                                       (Super.Ct.No. FSB905298)

TITO PEREZ, JR.,                                                         OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Ronald M.

Christianson, Judge. Affirmed.

         David L. Kelly, 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, and Melissa Mandel, Deputy

Attorney General, for Plaintiff and Respondent.




                                                             1
       Defendant Tito Perez, Jr., appeals his conviction for the gang-related first degree

murder of Alex Alaniz. The sole issue he raises is ineffective assistance of trial counsel,

who, defendant contends, prejudicially failed to investigate possible exculpatory evidence

and failed to call a gang expert to testify on defendant’s behalf.

       We conclude that even if trial counsel’s performance fell below the applicable

standard of professional conduct, no prejudice resulted.

                                 PROCEDURAL HISTORY

       Defendant was charged with one count of first degree murder, along with gun use

and gang allegations. (Pen. Code, §§ 187, subd. (a), 12022.53, subd. (d), 186.22, subd.

(b)(1)(C).)1 A jury convicted him of the offense as charged and found true allegations

that he personally discharged a handgun, resulting in death (§ 12022.53, subd. (d)), and

that he committed the crime for the benefit of a criminal street gang (§ 186.22, subd.

(b)(1)(C)).

       Defendant filed a motion for a new trial, asserting ineffective assistance of trial

counsel and the erroneous admission of prejudicial evidence. After a hearing, the court

denied the motion. The court then sentenced defendant to two consecutive terms of 25

years to life, with a minimum parole eligibility period of 15 years, pursuant to section

186.22, subdivision (b)(1)(C).

       Defendant filed a timely notice of appeal.




       1   All statutory citations refer to the Penal Code unless another code is specified.

                                               2
                                         FACTS

       On December 12, 2009, a number of people congregated at a house in Colton,

occupied by Jane Doe 3, her sister Jane Doe 2, and Doe 3’s children. The sisters

socialized with members of Eastside Colton as well as with members of Northside

Colton. The people at the house that night included members of both gangs. The two

gangs were sometimes at odds and sometimes on friendly terms.

       In September 2009, Daniel Rivera, an Eastside Colton member known as

“Clumsy,” was murdered. Colton police believed that a Northside Colton member named

Michael Montes, or “Red,” had killed Rivera, but as of the date of defendant’s trial,

Montes had not yet been charged with Rivera’s murder. Defendant was known to Colton

police as a member of Eastside. He used the moniker “Stomps” or “Stomper.” There

was a tribute area in the living room of Doe 3’s house, commemorating Rivera. The

tribute area had a photograph of Rivera, a photograph of defendant, and photograph of

defendant standing with Doe 3. The people depicted in the photographs were throwing

gang signs. Photos of defendant and others throwing Eastside gang signs were also found

on defendant’s cell phone after his arrest, as were photographs of a memorial for Rivera

and of Rivera’s gravesite.

       On the night of December 12, 2009, defendant was at Doe 3’s house. Doe 3 had

known him for about two months. She knew him as “Tito” or “Stomps.” Doe 2 also

knew defendant and saw him at the house that night. Alex Alaniz, a Northsider known as

“Crooks,” arrived at the house around 4:30 a.m. Doe 3 had met him only one time

before. Earlier in the evening, a Northsider called “Bala” had introduced himself to

                                             3
defendant in a rude way. Doe 3 didn’t want trouble, so she asked Bala to leave. Bala

said he was going to return with Crooks and Smokey.

       Jane Doe 1, who was affiliated with Northside Colton, drove Alaniz and a

Northsider called “Risky” to Doe 3’s house. Shortly after Alaniz entered the house,

defendant asked Alaniz to go outside with him. Defendant apparently felt disrespected

about something, and he wanted to go outside and “make sure everything was square.”

Frankie Fernandez, a Northsider known as “Frankie Boy,” also stated that there was

tension between Alaniz and defendant, whom he identified as “Tito.”2 Doe 3 saw them

walk out the door and almost immediately heard gunshots. She ran outside and saw

Alaniz on the ground. Alaniz said “Tito” shot him.3 Doe 1 called 911.

       Alaniz died of a gunshot wound to the chest. Empty nine millimeter shell casings

and one live nine millimeter bullet were found in the vicinity of Alaniz’s body. No

weapon was ever found. However, Doe 1 heard a sound consistent with racking a

semiautomatic pistol just as defendant and Alaniz walked out the door, and the bullets

were consistent with ammunition used in semiautomatic pistols. Defendant’s cell phone

contained a photograph of him holding a semiautomatic pistol.

       2   At trial, Doe 3 denied hearing this conversation. Colton police detective Wilson
testified that Doe 3 described the conversation to him when he interviewed her after the
shooting. Wilson also related what Fernandez had told him during their interview.
Fernandez was completely uncooperative when he testified at trial, and his testimony was
inconsistent with what he had told Wilson. A video of Fernandez’s interview was played
for the jury.

       3 Doe 3 gave multiple accounts of what Alaniz said, both in her interview with
Detective Wilson and at trial. Among other versions, she stated that she did not hear
what Alaniz said but that Frankie Boy told her that Alaniz said defendant shot him.

                                             4
                                   LEGAL ANALYSIS

          DEFENDANT’S RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL

                           COUNSEL WAS NOT VIOLATED

       A criminal defendant has a constitutional right to the effective assistance of trial

counsel. In order to establish a claim of ineffective assistance of counsel, or IAC, the

defendant has the burden of demonstrating that his trial attorney failed to act in a manner

to be expected of a reasonably competent attorney acting as a diligent advocate. The

defendant must also show that it is reasonably probable that the outcome of the trial

would have been more favorable in the absence of his attorney’s failings. (Strickland v.

Washington (1984) 466 U.S. 668, 687-688, 691-694.)

       We first address the standard of review. The claim of IAC was first asserted in

defendant’s motion for a new trial. The Attorney General asserts that because a trial

court’s denial of a motion for new trial is reviewed on appeal for abuse of discretion,

abuse of discretion is an appropriate standard for review of defendant’s IAC claim. The

case she relies on, however, is a People’s appeal from an order granting a new trial on

grounds of ineffective assistance of trial counsel. (People v. Callahan (2004) 124

Cal.App.4th 198, 201.) In People v. Ault (2004) 33 Cal.4th 1250 (Ault), the California

Supreme Court held that while abuse of discretion is the standard of review for an order

granting a new trial motion, different considerations may apply to appellate review of an

issue which was unsuccessfully raised in a new trial motion. The court noted that there

are two lines of authority, some applying abuse of discretion to orders denying new trial

motions, and others applying de novo review. (Id. at pp. 1260-1263.) The court

                                              5
discussed the reasoning underlying the latter: First, unlike an order granting a new trial,

an order denying a new trial finally disposes of a party’s rights. (Id. at p. 1261.) Second,

the order denying a new trial is not independently appealable. Because the denial may be

reviewed only on appeal from the final judgment, article VI, section 13 of the California

Constitution obliges the appellate court to conduct an independent examination of the

record to determine whether a miscarriage of justice occurred. (Id. at pp. 1261-1262.)

“As in any appeal from a final judgment, the reviewing court must determine for itself

whether errors denied a fair trial to the party against whom the judgment was entered.”

(Id. at p. 1262.) Finally, it would be anomalous “to apply more deferential review to a

claimed error affecting the fairness of the judgment simply because the complaining party

moved unsuccessfully for a new trial on the same ground in the court below.” (Ibid.)

       The court did not resolve the split of authority concerning orders denying new trial

motion; the issue in Ault was the scope of the trial court’s discretion in granting a new

trial. (Ault, supra, 33 Cal.4th at p. 1255.) Accordingly, the court’s discussion of the

standard applicable to denial of new trial motions is dictum. In People v Nesler (1997)

16 Cal.4th 561 (Nesler), however, a plurality of the court held that when a criminal

defendant appeals the denial of his or her new trial motion based on juror misconduct, the

appellate court must independently review the trial court’s conclusion that no prejudice

arose from the misconduct as a mixed question of law and fact. (Id. at p. 582 & fn. 5.)

Taken together, Ault and Nesler are persuasive authority that we must review the denial

of defendant’s new trial motion independently as a question of mixed law and fact, just as

we would if the IAC claim was not first raised in a motion for new trial. Although we

                                             6
give deference to the trial court’s factual findings, if any, if they are supported by

substantial evidence, both the performance and prejudice prongs of IAC are mixed

questions of law and fact which are predominantly legal. Accordingly, we review them

independently. (In re Alcox (2006) 137 Cal.App.4th 657, 666; People v. Mickey (1991)

54 Cal.3d 612, 649; Strickland v. Washington, supra, 466 U.S. at p. 698.) Here, it is

undisputed that trial counsel conducted at most a limited investigation into the areas

defendant asserts on appeal as the basis for his IAC claim. Accordingly, we will address

only whether his conduct fell below the applicable standard of performance and whether

any act or omission was prejudicial. (Strickland v. Washington, supra, 466 U.S. at pp.

687-688, 691-694.)

       Failure to Investigate/Call Angel Enriquez as an Alibi Witness

       In his new trial motion, defendant asserted that Angel Enriquez could have

testified that defendant’s head was not shaved at the time of the murder. This could have

been sufficient to raise a reasonable doubt that defendant was the killer, he asserted,

because all of the witnesses described the killer as bald.4 On appeal, defendant asserts

that his trial attorney’s performance was deficient because he failed to interview Enriquez

and was therefore unable to establish that defendant’s head was not shaved the night of

the homicide.




       4 The moving papers do not cite any testimony in the trial transcript to support the
claim that “all” of the witnesses testified that the killer was bald.

                                              7
       Even if counsel should have interviewed Enriquez as part of his trial preparation,

his failure to do so was not prejudicial. First, it is not the case that multiple witnesses

described the shooter as bald. On the contrary, only Doe 1 described the person who

apparently shot Alaniz as bald, and as we discuss below, her ultimate identification of

defendant did not rest on the question of baldness. Neither Doe 2 nor Doe 3 described

the shooter as bald. Frankie Fernandez described seeing a bald person present at the

house, but he did not see who went out the door with Alaniz and did not see who shot

Alaniz. Accordingly, he did not describe the shooter as bald. He also said that the “bald

one” was still at the house after the shooting.

       Second, the witnesses who identified defendant did so on the basis of their prior

knowledge of him. Doe 1 told Detective Wilson that she saw a bald man with a gun in

his hand walk out of the house behind Alaniz shortly before she heard the shots. She

claimed not to know who it was, but during a break in the interview, Detective Wilson

overheard her telling a friend on the phone that she knew who it was, that she didn’t

know his name but that she would know him if she saw him. After the interview

resumed, she identified defendant’s photograph in a photo lineup as one of two people

who might have been the man with the gun. She also identified defendant at trial as the

man who walked past her with a gun shortly before the shooting occurred.

        Similarly, Doe 3’s identification of defendant as the person who left the house

with Alaniz seconds before the shots were fired was based on her acquaintance with

defendant, not on whether he had hair that night. Finally, Frankie Fernandez told

Detective Wilson that there was tension between “Tito” and Alaniz that night. He, Doe 1

                                               8
and Doe 3 all identified defendant’s photograph in a photo lineup as the person they were

talking about.

       Because baldness was not a factor in identifying who shot Alaniz, there is no

reasonable probability that Enriquez’s testimony would have altered the outcome of the

trial in defendant’s favor. Accordingly, defendant has failed to meet his burden of

demonstrating that his attorney’s failure to interview Enriquez was prejudicial.

(Strickland v. Washington, supra, 466 U.S. at pp. 691, 693-694.)

       Gang Allegations/Motive Evidence and Third-Party Culpability.

       Defendant also contends his trial attorney failed to provide competent

representation because he “fail[ed] to attack the State’s gang expert and the prosecution’s

notion that this homicide was a gang retaliation” and failed to present evidence that Paul

Bustamante, aka Risky, might have been the shooter.

       He first contends that if trial counsel had investigated the prosecution’s theory that

defendant killed Alaniz in retaliation for the murder of his friend Clumsy by “Red”

Montes, counsel would have learned that defendant and Montes were friends and bore

each other no animosity. Trial counsel conceded that he did not follow up when

defendant informed him, immediately before closing arguments, that he and Montes were

friends.5 However, he testified that he believed he must have discussed the retaliation

theory with defendant before and during the trial, and that defendant had never previously

       5   Defendant’s new trial motion included two letters purporting to be from Montes
which indicated that he and Montes had a friendly relationship. Trial counsel did not
have the letters during the trial. Defendant did not explain why he did not give those
letters to his trial attorney, and the letters were never authenticated.

                                             9
mentioned that he and Montes were friends. In any event, he did not believe that he

would have pursued that angle because it would have connected defendant to the “gang

life,” and he had done everything he could to minimize defendant’s gang involvement.

       We cannot say that it was an unreasonable tactical decision to attempt to portray

defendant as being only peripherally involved in Eastside Colton, in light of the

prosecution’s retaliation theory.6 Moreover, defendant’s alleged friendship with Montes

may explain why defendant did not kill Montes to retaliate for Clumsy’s murder, but it

has no relevance to whether defendant killed Alaniz, a Northsider, to retaliate against

Northside Colton for the killing of his friend. Because it is not reasonably probable that

Montes’s testimony would have altered the outcome in defendant’s favor, any failure by

trial counsel to investigate Montes as a possible defense witness was not prejudicial.

Moreover, the parties stipulated that Montes’s attorney had said that Montes would assert

his Fifth Amendment privilege if he were called to testify. Trial counsel had testified that

he would have expected that result if he had called Montes to testify about his friendship

with defendant. Accordingly, counsel’s failure to investigate was not prejudicial for this

reason as well.

       Defendant next asserts that trial counsel should have investigated a fight which

took place the day before the killing at a bar called Linko’s. In the new trial motion,

defendant asserted that Alaniz was involved in that fight and that Paul Bustamonte, aka


       6  Defendant criticizes trial counsel for “permitting” Detective McFarland to
testify that the killing might have been in retaliation for Clumsy’s murder but does not
assert that McFarland’s testimony was inadmissible.

                                             10
“Risky,” was involved as well. Bustamonte was at Doe 3’s house the night of the

murder. Defendant contended that trial counsel should have investigated Bustamante’s

involvement because it would give Bustamante a motive for killing Alaniz.

       Trial counsel was aware that the fight took place but did not investigate further

once he was told by the police that there was no security camera video of the fight.

However, he explained that he chose not to pursue a third-party culpability theory

because several people at the house who knew defendant said that defendant shot Alaniz

or said that they saw him walk out of the house with a gun. Again, we cannot say that

this was an unreasonable tactical choice. Doe 1 and Does 3’s testimony and/or

statements to police were compelling evidence that defendant shot Alaniz, and

Bustamante’s involvement in a fight with Alaniz would do little to cast doubt on their

testimony. Moreover, defendant did not provide any evidence that Bustamante was

involved in the fight. The motion states that the “defense is informed and believes that

there was evidence obtained by the investigating agency of a fight that occurred hours

before the murder between” Alaniz and Bustamante, but defendant did not introduce any

evidence at the hearing to support that assertion. It is arguable that trial counsel should

have investigated the possibility that Bustamante had a motive to kill Alaniz, but his

failure to do so cannot be found to be prejudicial unless there is some reason to believe

that the investigation would have turned up admissible exculpatory evidence.




                                             11
                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                               McKINSTER
                                                           Acting P.J.

We concur:



RICHLI
                       J.



MILLER
                       J.




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