PEOPLE v. FOREMANNo. D055887.

THE PEOPLE, Plaintiff and Respondent,
v.
DANIEL LEE FOREMAN, Defendant and Appellant.

Court of Appeals of California, Fourth District, Division One.
Filed September 23, 2010.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HALLER, J.

Daniel Foreman appeals from a judgment convicting him of murder and several other offenses. He asserts (1) the trial court erred in denying his posttrial motions for disclosure of juror identifying information and for a new trial based on juror misconduct, and (2) his trial attorney provided ineffective representation by failing to advise him of his absolute right to testify even if contrary to counsel's advice. We reject his contentions of reversible error and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

James Gavin, Jessica Brown, and Thomas Rushing lived together at a residence. On July 23, 2004, Gavin and Brown were shot at the residence. Gavin, who was shot in the back, died. Brown, who was shot in the arm, survived.

Rushing and Brown testified about the events leading to the shooting. While Rushing was at home talking with Gavin, two men who Rushing did not know entered their residence. One of the men, holding a gun, asked for someone named John. Rushing responded that he did not know who the man was asking for. Brown then arrived home. As she opened the door and started to step inside, she heard the two men yelling at Gavin to "[g]et down on the floor." One of the men was pointing a gun at Brown. Gavin pushed Brown back outside and ran out the door. As Gavin did so, he was shot in the back. The bullet went through Gavin's lung and heart, exited his chest, and hit Brown in the arm. After firing the gun, the man told Rushing to tell John: "`You're not going to be able to get over on us this way.'" The two men then left the home. While she was outside lying on the ground, Brown heard arguing and heard someone say, "`What did you have to do that for?'" She then heard a vehicle speed away from the property.

Foreman is a member of the Vagos Motorcycle Gang. Foreman and Ryan Matteson, another Vagos member, were charged with the shootings. After reaching a plea agreement, Matteson testified at trial on behalf of the prosecution. Matteson testified that he and Foreman went to the residence to take drugs and money from a man named John Hutton; they were both carrying guns; Foreman told the men at the residence not to move; and Foreman fired his gun as Gavin pushed Brown out the door. After firing the gun, Foreman stated, "`Tell John that was for him.'"

The prosecution submitted into evidence an audio recording of a conversation that occurred a few days after the shooting between Foreman and an undercover informant (Ashley Wyatt) who had infiltrated the Vagos gang. In the recorded conversation, Foreman made statements indicating that he shot Gavin and Brown.1

Another prosecution witness (Gerry Woods) testified that when he was at Foreman's home after the shooting, Foreman was reading a newspaper article about the shooting. At one point Foreman commented, "`Maybe someone will understand when you're told not to move, you don't move.'"

In defense, Foreman called Cameron Paige to the stand, who testified that he was at Foreman's home when Woods was there, and Foreman did not make the statement claimed by Woods. Paige and another defense witness (Shannon Montenegro) also testified to provide an alibi for Foreman, stating that Foreman and Paige were at Foreman's home installing a stereo in Montenegro's car on the day of the shooting. The defense recalled Brown to the stand, who testified that the shooter's eyes were blue and did not look the same as Foreman's hazel eyes.

In rebuttal on behalf of the prosecution, Detective Donald Mahoney testified that during a police interview, Foreman stated that he was at home on the day of the shooting; that there were numerous people in and out of his home that day; but he could not think of anyone who could "vouch" for him. Foreman did not mention Montenegro or Paige as alibi witnesses, and did not mention installing a car stereo.

Jury's Verdict and Sentence

The jury convicted Foreman of first degree murder of Gavin, assault with a firearm of Brown, attempted residential robbery of Hutton, residential burglary, and active participation in a street gang. The jury also made true findings on enhancement allegations that Foreman personally used a firearm, and that he acted to benefit a gang. The jury deadlocked on (and the court subsequently dismissed) an attempted murder count as to victim Brown and various enhancements, including allegations that Foreman personally discharged a firearm.

Foreman received an indeterminate term of 25 years to life for the murder. For the remaining offenses and enhancements, he received a determinate term of 28 years four months (consisting of six years for burglary, one year for assault with a firearm, eight months for attempted robbery, eight months for participation in a gang, 10 years for a gang enhancement, and 10 years for a personal gun use enhancement).

DISCUSSION

After the jury reached its guilty verdicts, Foreman, represented by new counsel, filed a motion for disclosure of the sealed juror personal identifying information for purposes of investigating four claims of juror misconduct. The trial court denied the motion. Thereafter, Foreman filed a new trial motion based on the same four claims of juror misconduct. He also requested a new trial based on his counsel's failure to advise him that he had an absolute right to testify even if contrary to counsel's advice. After hearing testimony from Foreman's trial counsel and from Foreman, the trial court denied the new trial motion.

On appeal, Foreman challenges the court's denial of his two motions alleging juror misconduct, and also contends he should be afforded a new trial because of his counsel's failure to advise him of his absolute right to testify.

I. Denial of Motions for Disclosure of Juror Identifying Information and for New Trial Based on Juror Misconduct

Foreman's motions for disclosure of juror identifying information and for a new trial were based on the following four claims of juror misconduct: (1) a juror's bias because of his contact with a possible Vagos gang member or associate; (2) a juror's use of a personal digital assistant (PDA) during deliberations; (3) the jury's access to the prosecutor's laptop computer during deliberations; and (4) a juror's discussion of the case with coworkers during trial. We first set forth the legal principles governing the two motions filed by Foreman, and then evaluate each of his claims of juror misconduct.2

A. Governing Law

To obtain a hearing on a petition for release of juror identifying information, the defendant must make a prima facie showing of good cause for disclosure. (Code Civ. Proc., § 237, subd. (b).) To meet this burden, the defendant must show the information is necessary for developing a motion for new trial or other lawful purpose. (Code Civ. Proc., § 206, subd. (g); People v. Santos (2007) 147 Cal.App.4th 965, 977; People v. Carrasco (2008) 163 Cal.App.4th 978, 989.)3 More specifically, there must be a "`sufficient showing to support a reasonable belief that jury misconduct occurred, that diligent efforts were made to contact the jurors through other means, and that further investigation is necessary to provide the court with adequate information to rule on a motion for new trial.'" (People v. Carrasco, supra, at p. 990.) "`Absent a satisfactory, preliminary showing of possible juror misconduct, the strong public interests in the integrity of our jury system and a juror's right to privacy outweigh the countervailing public interest served by disclosure of the juror information . . . .'" (Ibid.) Further, to support disclosure of juror identifying information, the alleged misconduct must be "`of such a character as is likely to have influenced the verdict improperly.'" (People v. Jefflo (1998) 63 Cal.App.4th 1314, 1322.) If the record shows that investigation of alleged juror misconduct would not reveal anything prejudicial, the trial court may deny the petition for disclosure. (People v. Box (2000) 23 Cal.4th 1153, 1222-1223, disapproved on other grounds in People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10.)

To obtain a new trial based on juror misconduct, the defendant must show a substantial likelihood that one or more jurors were influenced by bias. (People v. Bennett (2009) 45 Cal.4th 577, 626; People v. Tafoya (2007) 42 Cal.4th 147, 192.) Such bias exists if there is juror misconduct that is inherently and substantially likely to have influenced the jury, or that objectively reflects actual juror bias. (People v. Bennett, supra, 45 Cal.4th at pp. 626-627; People v. Danks (2004) 32 Cal.4th 269, 303; People v. Tafoya, supra, 42 Cal.4th at p. 193.) The likelihood of bias must be substantial; the courts do not reverse a jury verdict merely because there is some possibility a juror was improperly influenced. (People v. Danks, supra, at pp. 304-305.) Juror misconduct raises a rebuttable presumption of prejudice; the presumption is rebutted if a review of the record shows "`there is no substantial likelihood that any juror was improperly influenced to the defendant's detriment.'" (People v. Gamache (2010) 48 Cal.4th 347, 397; In re Hamilton (1999) 20 Cal.4th 273, 295-296; People v. Tafoya, supra, 42 Cal.4th at p. 193.)

We review a trial court's rulings concerning disclosure of juror identifying information under the deferential abuse of discretion standard. (People v. Carrasco, supra, 163 Cal.App.4th at p. 991.) We also apply the abuse of discretion standard to review a trial court's ruling on a new trial motion; however, if the record shows juror misconduct, we independently evaluate a trial court's conclusion that the presumption of prejudice has been rebutted. (People v. Thompson (2010) 49 Cal.4th 79, 140; People v. Danks, supra, 32 Cal.4th at pp. 303-304; People v. Cissna (2010) 182 Cal.App.4th 1105, 1117-1118.) When applying these standards, we defer to the trial court's credibility determinations and findings of historical fact if supported by substantial evidence. (People v. Pride (1992) 3 Cal.4th 195, 260; People v. Collins (2010) 49 Cal.4th 175, 242; People v. Hamlin (2009) 170 Cal.App.4th 1412, 1463.)

B. Claims of Juror Misconduct

1. Juror's Contact with Possible Vagos Gang Member or Associate

a. Background

After voir dire was completed and the jury was selected, a juror (Juror No. 2) discovered that he had contact with a possible Vagos gang member or associate. Concerned about this, the juror advised the bailiff, who in turn advised the court. The juror was questioned at a hearing outside the presence of the other jurors. Juror No. 2 explained that he told his son that he had been selected as a juror in a trial about "`some Vagos in trouble.'" In response to this, the son stated that Juror No. 2's former stepdaughter was "eyeballing" with the Vagos; her boyfriend was a tattoo artist who did "ink" for the Vagos; they rented a place from a Vago; and the tattoo shop was owned by the Vagos. Juror No. 2 told the court that he did not know if his former stepdaughter really was a Vago, and he did not know whether or not she was "harmless." He stated that she looked like she was using drugs and he did not want her around his home. However, about two weeks earlier she had entered uninvited into his backyard without going to the front door.

When Juror No. 2 was asked if his former stepdaughter's possible involvement with the Vagos would cause him to be unfair to either side, he responded no, but he wanted the court and parties to make the decision. He acknowledged that he was nervous about her and her boyfriend's possible connection with the Vagos because they knew where he lived and it bothered him that she "snuck all the way around [his] house before she knocked on [his] door." He stated that his only concern was "repercussions" because they knew where he lived. When asked if his concerns would affect the way he made decisions in the case, he stated he did not think it would affect his decisions and that he would be "more worried for his girlfriend."

During a discussion about whether to keep Juror No. 2 on the jury, defense counsel stated that he would have excused the juror had this information emerged during jury selection, noting that the juror had contact with someone coming to his house. The prosecutor opined the new information did not show the juror was biased, pointing out that other jurors had voiced concern simply because the case was a gang case, and that it was the juror's former stepdaughter, not the Vagos gang, who had come to the juror's house. The court concluded there was no reason to excuse Juror No. 2.

After the jury's verdict, Foreman raised the issue of Juror No. 2's disclosure concerning his former stepdaughter to support his motions to obtain juror identifying information and for a new trial. Foreman asserted the defense needed to obtain juror information to determine if the juror had shared his fears with other members of the jury, and a new trial was warranted because the juror's disclosure reflected a fear of and bias against the defendant and the Vagos gang.

The trial court denied both motions, reasoning that the juror had been questioned about this during a hearing; the juror had not stated he was afraid; the juror stated he could still be fair; and the issue did not need to be revisited.

b. Analysis

Foreman argues that Juror No. 2's statements showed that he was afraid of the Vagos gang, which required further investigation and a new trial for juror bias. The record supports the trial court's contrary conclusions. The fact that Juror No. 2 alerted the court about his contact with a possible Vagos member or associate reflected that the juror was vigilantly trying to ensure the trial was fair. When questioned by the court and parties, the juror stated that although he was concerned about possible repercussions because the location of his residence was known, he could still be fair in his decisionmaking at trial. The trial court was entitled to credit this representation and conclude that Juror No. 2 would not let his concerns interfere with his duty to be an impartial juror. The court's finding is also supported by the fact that Juror No. 2's contact did not involve an interaction with someone who had been definitively identified as a Vagos gang member or associate. Further, Juror No. 2's assurance that he could be fair notwithstanding his concerns about his former stepdaughter supported an inference that he would not raise this matter in the deliberation room when speaking with other jurors.

Foreman also argues that Juror No. 2's statement that he told his son that the trial was about "`some Vagos in trouble'" reflects that Juror No. 2 had prejudged the case by assuming that Vagos was a criminal street gang and that Foreman was a Vagos gang member who had committed a crime. The trial court was not required to reach this conclusion. The court could reasonably construe Juror No. 2's statement as a description of the allegations of the case as gleaned from the voir dire questioning. There is nothing to suggest that Juror No. 2's statement constituted an expression of opinion concerning the issues that would be submitted to the jury for resolution at trial.

Foreman further contends that Juror No. 2's conversation with his son violated the court's instruction not to talk about the case with anyone. The court could reasonably find that Juror No. 2's brief description of the case was a de minimis violation that did not constitute misconduct creating a substantial likelihood that the juror could not properly perform his duties.

The trial court did not abuse its discretion in ruling that Foreman did not show a need for further investigation, nor a substantial likelihood of juror bias requiring a new trial, based on Juror No. 2's disclosure.

2. Juror's Use of PDA During Deliberations

a. Background

After about two days of jury deliberations, the bailiff informed the court that a group of about five jurors had contacted him and told him that on and off during deliberations a juror had used a PDA (apparently to text message). The jurors told the bailiff they were concerned the juror might have used the PDA for "some communication with Vagos."4 However, the bailiff reported that the jurors did not ask the juror about his or her communications and did not know the contents of the communications.

The court and the parties discussed the matter, and agreed that the court should give a general admonition to the jury instructing them not to use any electronic devices during deliberations. The court and counsel noted that although the PDA use could have caused the juror not to participate during deliberations, the jury had not been specifically instructed not to use electronic devices during deliberations, and there had been no indications that the juror had used the PDA to talk about or obtain information about the trial. Counsel for both parties did not want the court to question the jurors about the specific report of the juror's PDA use because they were concerned that if they singled the juror out, this might cause divisions among the jurors. The jurors were then brought into the courtroom, and the court gave them a detailed instruction telling them not to have electronic communication with anyone during deliberations even if the communication was not about the trial, and not to use electronic devices to obtain information about the trial. Thereafter, there were no further reports from any jurors concerning PDA use during the remaining deliberations, which continued for about two more days.

In his posttrial motion to unseal the juror identifying information, Foreman argued that the defense needed the contact information so it could determine the contents of the juror's PDA communications, and whether they were discussed during jury deliberations. In his new trial motion, Foreman asserted that his trial counsel should have moved for a mistrial because the juror's use of the PDA during deliberations created a presumption of prejudice, and a new trial was warranted.

The trial court denied the motions, stating that it had held a hearing during the trial on the issue of the PDA use; there was no evidence of any misconduct that affected the jury's deliberations; the jurors were all thereafter admonished not to use electronic devices during deliberations; and there was no need to reexamine the issue.

b. Analysis

Foreman asserts the juror's use of the PDA during deliberations constituted misconduct, that he should have been permitted to investigate the matter with the jurors, and that he should have been granted a new trial based on the misconduct.

A sitting juror's discussions about the trial with nonjurors or receipt of extraneous information concerning the trial constitutes misconduct. (People v. Danks, supra, 32 Cal.4th at pp. 302, 304.) Here, the record supports the court's finding that there was no such misconduct arising from the juror's PDA use. When the court and counsel discussed the juror's PDA use prior to the jury's verdict, the court noted that the complaining jurors did not know the nature of the juror's PDA use. Thus, the court and counsel apparently recognized that the PDA use could have been innocuous and unrelated to the trial. Further, although the jury had been admonished not to discuss the case with nonjurors or access outside information about the case (including through the Internet), there was no admonishment telling the jury not to use electronic communication devices during deliberations. Thus, there was no basis to infer the juror was intentionally ignoring the court's directives when he or she used the PDA. On the other hand, it could properly be inferred that the juror followed the express instructions not to talk about the case with nonjurors and not to retrieve information about the case from any source outside the trial. (People v. Gray (2005) 37 Cal.4th 168, 217 [absent contrary showing in the record, court presumes jurors followed instructions]; People v. Delgado (1993) 5 Cal.4th 312, 331 ["`crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions'"].) Given the content of the instructions provided to the jury, the court and counsel could reasonably infer that the juror followed the court's instructions and did not use the PDA for any improper communication or research.

Foreman also contends the juror's PDA use required further investigation by the defense and a new trial because it showed the juror's failure to deliberate. A failure to deliberate can arise when a juror fails to pay attention throughout the deliberations. (See, e.g., Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1688 [juror appeared to sleep or read throughout two days of deliberations].) Because a group of jurors diligently reported the PDA use, the court could reasonably infer that if the PDA-using juror had been so distracted during the deliberations as to constitute a failure to deliberate, the other jurors would have brought this to the court's attention. Notably, after the court admonished the jury not to use electronic devices, there were no further reports from jurors on this matter during the subsequent two days of deliberations.

Foreman asserts that further investigation by the defense and a new trial were required based on the jurors' expressed concern to the bailiff "that there may have been some communication with Vagos." The jurors told the bailiff they saw the juror using the PDA, but they did not ask the juror what he was doing and they did not have any actual information about the nature of the PDA use. The trial court could reasonably assess that the stated concern about a communication with the Vagos gang was speculative and there was no need for further investigation.

Foreman also argues that he should be afforded a new trial because the court failed to conduct an inquiry concerning the PDA use at the time the conduct was disclosed. "`[N]ot every incident involving a juror's conduct requires or warrants further investigation.'" (People v. Martinez, supra, 47 Cal.4th at p. 942.) The trial court has a sua sponte duty to investigate alleged misconduct only if the information provided to the court, if proven true, would constitute good cause to doubt a juror's ability to properly perform his or her duties. (Ibid.; People v. Cowan (2010) 50 Cal.4th 401, 506.) We review the trial court's decision concerning the need for inquiry for abuse of discretion. (People v. Martinez, supra, at p. 942.) As stated, the trial court could reasonably conclude the juror's PDA use was not related to the trial and did not reflect a failure to deliberate. Accordingly, the court was not under a sua sponte duty to investigate the matter at the time of its occurrence.

There was no error in the court's rulings with respect to the juror's PDA use.

3. Jury's Access to Prosecutor's Laptop Computer

a. Background

During its deliberations, the jury asked to listen to the audio CD of the conversation with defendant that was surreptitiously recorded by Wyatt. The CD could not be played on an ordinary CD player, but required a Windows-based machine. The court and parties discussed various options on how to provide the CD to the jury, and all agreed to set up the prosecutor's laptop computer in the deliberation room. The court, the prosecutor, and defense counsel were in the deliberation room at the time the laptop was set up. While observed by defense counsel, the prosecutor described on the record the steps he was taking to open the file for the jury. The prosecutor showed the jury how to press play, and how to rewind and fast forward. The prosecutor told the jury that they should communicate when they were finished because he needed to do other work on the laptop that day. The court told the jury that if there were any problems they should use the normal procedure and notify the bailiff. At the hearing on the new trial motion, Foreman's trial counsel testified that as soon as the jury was finished listening to the CD, the bailiff removed the laptop.

In his motion to unseal juror identifying information, Foreman stated that it appeared the laptop was used for the prosecutor's everyday work, and no admonishment was given to the jury not to look into other files on the laptop. He asserted that the defense needed to contact the jurors to determine if they accessed any other information on the laptop which could have influenced the deliberations. In support of his new trial motion, Foreman argued that his trial counsel should have taken steps to ensure that the jury could not access extrajudicial information in the laptop, and the failure to do so warranted a new trial.

Denying Foreman's motions, the court stated there was no evidence or reason to believe the jury did anything but listen to the audio CD on the laptop.

b. Analysis

Foreman argues the defense needed to investigate whether jurors were exposed to extraneous material on the prosecutor's laptop (including inadmissible materials related to the trial), and a new trial should have been granted because of the jury's access to extraneous material. The record supports the trial court's finding that the jury did not access any extraneous materials on the laptop. The court and parties were present in the deliberations room when the laptop was set up for the jury's use, and when the jurors were alone they merely had to press play. The jury was told to contact the bailiff for removal of the laptop when they were finished, and at the new trial hearing Foreman's trial counsel testified that this is what occurred. Further, given that jurors had reported that a juror had used a PDA during deliberations, the trial court could reasonably infer that jurors would have reported any improper use of the prosecutor's laptop. The court did not abuse its discretion in finding that Foreman did not make a prima facie showing of possible misconduct supporting disclosure and that a new trial was not warranted based on the jury's access to the laptop.

4. Juror's Discussion of Case with Coworkers

a. Background

In support of his motions to unseal juror identifying information and for a new trial, Foreman submitted a declaration from his mother-in-law (Linda Bitonti) stating as follows. Bitonti worked with one of the jurors serving at Foreman's trial. The juror was at the trial on Monday through Thursday, and at work on Fridays. While at work, she overheard the juror discussing the trial with other employees. Employees asked the juror about how the trial was going, and the juror would tell them something that happened. Bitonti was not able to hear all the discussions, but she heard the juror say that a juror was text messaging someone; a juror had a heart attack and was removed from the jury; and the jury could not reach a decision "because of special circumstances." The juror also stated that "there was a person testifying against [Foreman] and they knew each other. Possibly they were both involved." Bitonti stated that she believed employees in the office were following the trial in the newspaper, and they would ask questions about the trial and the juror would answer the questions. Bitonti stated that at the time she did not know the rules governing jurors and did not think she should talk about what she was hearing, but she later learned that the juror should not be discussing the case with other employees.

In his motion for disclosure, Foreman contended he needed the juror identifying information to contact the juror to "further determine if he was discussing the case with his co-workers during deliberations." Opposing Foreman's motion, the prosecutor noted the defense could contact the juror through his workplace to see if he was willing to be interviewed. In his new trial motion, Foreman argued that the juror's conversations with coworkers constituted misconduct that created a presumption of prejudice and required a new trial.

Denying the motions, the court stated that the credibility of the defendant's mother-in-law's affidavit was questionable because the matter could have been raised during trial but was not brought up until after trial. The court found that even assuming the affidavit was truthful, the misconduct arising from the juror's discussion of the case was not prejudicial because there was no evidence that any outside information was provided to the juror that would have affected deliberations.

b. Analysis

Foreman contends that he established a prima facie case of good cause for disclosure based on the juror's conversations with nonjurors, and a new trial was warranted based on the presumptive prejudice arising from the juror's misconduct.

A juror's discussion of the case during trial with a nonjuror constitutes misconduct that raises a rebuttable presumption of prejudice. (People v. Danks, supra, 32 Cal.4th at pp. 302, 304.) Here, the court could reasonably question the veracity of the misconduct claim set forth in the affidavit given that it came from a person related by marriage to the defendant and it was not raised until after the guilty verdict. In any event, even assuming the statements in the affidavit were true, the record shows no prejudicial misconduct.

Although Foreman's mother-in-law stated that she did not hear the entirety of the conversations, Foreman did not show that disclosure of juror personal identifying information was necessary to further investigate the matter. The name of the juror who purportedly engaged in the conversations was set forth in the mother-in-law's affidavit. There was no showing that this juror, and the coworkers who participated in the discussions, could not have been contacted by the defense through their place of employment. Because there was another avenue of contact to secure more evidence, the trial court did not abuse its discretion in concluding Foreman did not show a need for disclosure of juror personal identifying information for purposes of additional investigation.

As to the evidence presented via the mother-in-law's affidavit, the matters she overheard concerned the juror's provision of information to the nonjurors, not the juror's receipt of information from the nonjurors. A juror's provision of information about the trial or deliberations to nonjurors does not, standing alone, constitute misconduct of "`such a character as is likely to have influenced the verdict improperly.'" (People v. Jefflo, supra, 63 Cal.App.4th at p. 1322 [no prejudicial misconduct arising from deliberating juror's statement to nonjuror that jury was deadlocked].) Although the mother-in-law stated that she thought the nonjurors were reading newspaper articles about the trial and then asking the juror questions about the trial, there is nothing to indicate that the nonjurors provided extraneous information from the newspapers to the juror. The fact that Foreman's mother-in-law did not report hearing the nonjurors provide any opinions or outside information to the juror shows there was no substantial likelihood of improper influence on the juror, thereby rebutting the presumption of prejudice.

The court did not err in denying Foreman's motions for disclosure of juror identifying information and/or for a new trial based on a juror's alleged conversations with nonjurors.

II. Defense Counsel's Failure to Advise About Absolute Right to Testify

Foreman argues his trial attorney (Raymon Hallard) provided ineffective representation because Foreman told him that he wanted to testify, and his attorney failed to advise him that he had the absolute right to testify even if contrary to counsel's recommendation.

A. Background

Testifying at the hearing on the new trial motion, Hallard and Foreman both stated that Foreman told Hallard on several occasions that he wanted to testify. According to Hallard, he explained to Foreman the reasons he did not think Foreman should testify, and Foreman nodded his head affirmatively and seemed to agree with his recommendation.

Foreman, on the other hand, testified that Hallard did not explain to him why he should not testify, but merely told him at the conclusion of the defense case that he would not call him as a witness. Foreman explained that just before the defense rested, Hallard asked him if they had forgotten anything, and Foreman responded, "`Yeah, putting me on the stand.'" Hallard asked Foreman why he wanted to take the stand, and Foreman told him that he had concerns about a lot of the evidence and testimony; he felt the jury wanted to hear his side; and he was the only one who could "get up there and tell it." Hallard told him no, "`We're not going to call you,' or, `I'm not going to call you . . . .'" Foreman testified that he had assumed that he would testify, and he was shocked and upset when Hallard told him no. However, he did not argue with Hallard or raise the matter to the court, explaining that he assumed it was his attorney's decision since his attorney had controlled everything else during the trial.

Both Hallard and Foreman testified that Hallard never told Foreman that he had an absolute right to testify even if his attorney did not want him to testify. Further, Hallard did not recall Foreman ever specifically saying that he was persuaded by Hallard's reasons that he should not testify, and Hallard acknowledged that he could have misunderstood what he interpreted to be Foreman's agreement. On the other hand, Foreman never told Hallard that he disagreed with Hallard's recommendation, and Hallard did not tell Foreman that he did not have a right to testify and that it was his counsel's decision. Rather, Hallard simply explained why he did not think Foreman should testify, and Foreman seemed to agree by nodding his head affirmatively.

Foreman testified that he did not recall ever being informed in the court system that he had a right to testify. On cross-examination, Foreman acknowledged that he had pleaded guilty in two previous cases and that several years ago he had been tried for murder, and that during these proceedings he was advised of his right to testify. Addressing Foreman's level of involvement in his current case, Hallard testified that during the witness testimony Foreman passed notes and whispered to him to communicate with him about the case.

At the new trial hearing, Foreman was also questioned about the information he would have provided to the jury if he had testified. Foreman stated that he would have corrected a lot of false information presented by the witnesses. That is, he would have explained that Detective Derrick Pacifico, not Detective Mahoney, interviewed him.5 Further, although Detective Mahoney testified he did not take Foreman's shoe prints, Mahoney failed to state that Pacifico did so.6 Foreman would have refuted Matteson's claim that they were together at the time of the shooting and would have explained where he was. He would have shown that Woods's claim that Woods heard Foreman speaking about the shooting while Woods was in "the next room" at Foreman's house was impossible based on the layout of his home.7

Denying the new trial motion, the court concluded there was no ineffective representation and Foreman was not denied his constitutional right to testify. The court found that Foreman knew "enough about the system" and he could have spoken up at any time and told the court he wanted to testify. The court assessed that Foreman "just has had a change of heart afterwards and decided that maybe it would have been better for him to testify." Alternatively, the court concluded that even if Foreman had testified, it would not have affected the outcome because he did not have any new information to give the jury. The court observed that Foreman had presented his alibi defense through other witnesses, and there was no reason to believe that his testimony would have made any difference on this point.

B. Analysis

A defendant may exercise the right to testify even if contrary to the advice of defense counsel. (People v. Bradford (1997) 15 Cal.4th 1229, 1332.) Unless the trial court becomes aware of an express conflict between the defendant and defense counsel about this decision, the trial court is not required to advise the defendant about the defendant's right to decide whether to testify. (Id. at pp. 1331-1333.) However, competent counsel is expected to inform the defendant of this right. (See People v. Murphy (1972) 8 Cal.3d 349, 366; People v. Bradford (1997) 14 Cal.4th 1005, 1053; Florida v. Nixon (2004) 543 U.S. 175, 187 [defense counsel "must both consult with the defendant and obtain consent" concerning recommendation about testifying].)

Because defense counsel did not affirmatively tell Foreman that he had an absolute right to testify notwithstanding his counsel's contrary decision, we will assume the advisements provided to him were deficient. However, the record supports a finding of no prejudice under any standard of review. (See In re Resendiz (2001) 25 Cal.4th 230, 253-2548 [reasonable probability of different outcome standard applied to ineffective representation arising from counsel's inadequate advisal]; People v. Johnson (1998) 62 Cal.App.4th 608, 618, 634-636 [harmless beyond a reasonable doubt standard applied to error involving deprivation of federal constitutional right to testify]; People v. Allen (2008) 44 Cal.4th 843, 871 [same].) The trial court discredited Foreman's claim that he wanted to testify notwithstanding his counsel's contrary advice, and found that he merely "had a change of heart" after the jury's verdict. At the hearing on the new trial motion, Foreman's trial counsel testified that Foreman never affirmatively stated that he disagreed with the decision not to present his testimony. Foreman likewise acknowledged this, testifying that he did not argue when his attorney stated at the end of the defense case that he would not be calling him to the stand. The trial court could reasonably infer that if Foreman truly did not wish to follow his counsel's final recommendation, he would have, at a minimum, made some statement to his attorney indicating that he questioned or disagreed with this decision. The court could consider the fact that Foreman had previous involvement in the criminal justice system and was actively writing notes and speaking with his attorney during the trial testimony, which supports an inference that Foreman was not intimidated by the process and he would have asserted himself if he disagreed with his attorney. Because Foreman did not say anything to his attorney or to the court to protest the final decision not to call him to the stand, the record supports that Foreman did not want to override this decision.

As found by the trial court, the lack of prejudice is also shown by the fact that Foreman's testimony was not necessary to present his alibi defense, given that two defense witnesses (Paige and Montenegro) testified at trial that on the day of the shooting Foreman was with them working on Montenegro's car. Further, at the new trial hearing Foreman did not explain how his testimony would have refuted his recorded admissions to Wyatt that he was involved in the shooting. These recorded admissions provided compelling evidence to defeat Foreman's alibi defense to the shooting. Because Foreman admitted guilt during a casual, recorded conversation, this is not a case that involved a straight credibility contest between prosecution and defense witnesses so as to make the jury's opportunity to assess the defendant's credibility of crucial significance.

Foreman argues that because he did not testify that he was not interviewed by Detective Mahoney, Mahoney was able to testify without contradiction on rebuttal that Foreman told him he could not provide the names of any alibi witnesses, thereby taking "the wind out of the sails" of his alibi defense. As stated, there was strong evidence of guilt arising from Foreman's admissions during the recorded conversation with Wyatt. We are satisfied beyond a reasonable doubt that Foreman's failure to testify to refute Detective Mahoney's testimony did not affect the outcome of the trial.

Any error arising from defense counsel's failure to expressly tell Foreman that he could override counsel's decision not to present his testimony was harmless beyond a reasonable doubt.

DISPOSITION

The judgment is affirmed.

WE CONCUR:

HUFFMAN, Acting P. J.

NARES, J.

FootNotes


1. The recorded conversation included the following statements: "FOREMAN: And then you know what's fucked up is Ryan said, `why did you shoot him?' I said, I operate like a machine dude when I'm doing business. [¶] . . . [¶] . . . I've been doing this shit for so long . . . like pfffffff, nobody else move, put your head down, you know what I mean? [¶] WYATT: It was just one? [¶] FOREMAN: Yeah, I just shot him once. [¶]. . . WYATT: Good shot. [¶] FOREMAN: It went through him and hit his girlfriend's arm. [¶] . . . [¶] When I say nobody move, I looked at everybody else and said quit looking at me . . . ."
2. Although the motions for disclosure and for new trial were brought and ruled upon separately, we evaluate them together because the trial court's reasons for its rulings were essentially the same for both motions.
3. If the trial court finds a prima facie showing of good cause for release of the information and no compelling interest against disclosure, the court must set the matter for a hearing where jurors have a right to appear and protest the granting of the petition for release. (Code Civ. Proc., § 237, subds. (b), (c).)
4. In a declaration submitted by a defense investigator in support of Foreman's posttrial motions, the bailiff is reported as stating to the investigator that "his feeling was that maybe the jurors might [have] felt the juror was text messaging to maybe a Vago." However, the bailiff stated that the jurors did not know what kind of messages the juror was sending, because they did not ask, and the juror "could [have] been asking someone to buy some milk."
5. At trial Detective Mahoney testified that both he and Detective Pacifico interviewed Foreman.
6. In his trial testimony, Mahoney acknowledged that Foreman's shoe prints were taken. On cross-examination, Mahoney testified that someone took the shoe prints and they did not match any of the footprints at the scene.
7. At trial Woods testified that he heard Foreman make the comment about the shooting while reading the newspaper either when Woods was with Foreman in Foreman's bedroom, or when Woods was sitting in the living room and Foreman was sitting in the adjacent kitchen area.
8. Abrogated on another ground in Padilla v. Kentucky (2010) 130 S.Ct. 1473, 1484.

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