Filed 2/1/21 P. v. Dorton CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B289699
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA435221)
v.
FRED DORTON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, David V. Herriford, Judge. Affirmed.
Cannon & Harris; and Donna L. Harris for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr. and Stephanie A.
Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
Following a 10-day jury trial, Fred Dorton was convicted of
attempted voluntary manslaughter and two counts of assault with a
semiautomatic firearm and sentenced to 16 years in state prison.
The prosecution arose from an incident that took place on the front
porch of a property located at 4006 West 59th Place in the View
Heights area of South Los Angeles. An entity called NBG
Properties (NBG) claimed ownership of this home based on an
auction purchase at a foreclosure sale two months earlier. Fred
Dorton, the preexisting owner, claimed that the trustee’s sale was
invalid, and that NBG had no rights to the home. When NBG sent
a crew to change the locks on the property on January 14, 2015,
Dorton confronted the men with a loaded Glock .45 caliber
semiautomatic handgun and ordered them to leave. In the ensuing
altercation, one of the men was shot and seriously injured.
On appeal, Dorton asserts various grounds for reversal of his
conviction. Finding no merit in any of them, we affirm.
FACTS AND PROCEEDINGS BELOW
A. Prosecution Evidence
1. NBG Purchases Dorton’s Home
NBG was a real estate firm that bought distressed properties
and “rehabbed” them. Jason Balfany was a managing member of
the business and was in charge of acquisition and resale of the
properties. On November 14, 2014, at a trustee sale and auction,
NBG purchased Dorton’s house located on West 59th Place in Los
Angeles. NBG received a trustee’s deed about a week after the
auction and recorded the deed on November 25, 2014.
Following the auction, Balfany engaged Freddie Brown, an
NBG partner, to assist in contacting any occupants of the property.
Brown went to the property either on the day of the auction, or the
day after, and left a handwritten note on the door addressed “to
whom it may concern.” The note stated NBG had purchased the
2
property and asked the previous owner to contact him at the
telephone number provided on the note. Dorton subsequently
telephoned Brown, thanked him for the note, but said “the sale is
going to be rescinded.”
Over the next two months, NBG sought to determine whether
the property was occupied or vacant. During each visit, NBG
employees or agents knocked on the door, but received no response.
NBG’s attorney attempted several times to serve eviction papers on
Dorton but without success. Balfany believed the property was
vacant.
2. January 13, 2015: NBG Posts 24-hour Notice of Entry
and Receives Threatening Phone Call from Dorton
On January 13, 2015, Balfany asked Brown to leave a notice
on the property. Brown went to the house around 12:30 p.m. and
taped on the outer security door a 24-hour “Notice of Entry.” The
notice stated an intent to enter the property to replace the locks and
provide any current occupant with a copy of the new keys.
A security video from the same day showed Dorton parking in
the driveway at 4:46 p.m., pulling documents off the door, and using
his keys to open the door.1 At approximately 5:00 p.m., Balfany
received a phone call from Dorton.2 Dorton asked Balfany, “[d]id
1 As part of the investigation, police confiscated a DVR found
inside the 59th Place property and downloaded videos from that
DVR. At trial, video footage showing NBG representatives posting
notices, as well as the events surrounding the shooting, was
presented during the testimony of witnesses as they detailed
events. That testimony included confirmation of certain time
stamps on the video footage.
2Balfany was able to see the incoming phone number. He
subsequently passed on the telephone number to NBG’s eviction
attorney, Ronald Richards, who contacted Dorton.
3
you leave this notice at my house?” Balfany answered “yes” and
told Dorton that NBG owned the property; Dorton responded, “No,
you don’t.” Balfany told Dorton that because they had not met
anyone at the property, they were going to change the locks.
Balfany told Dorton that he was welcome to come get a key if
someone did in fact live there. Dorton seemed “very agitated”
during the call, told them not to come to his property, and at one
point said, “I’m giving you [a] deadly warning not to come.” When
Balfany asked if the statement was a threat, Dorton replied, “take
that as you will.”
Balfany notified NBG’s eviction attorney, Ronald Richards,
about the telephone call with Dorton via an email sent later that
evening.
3. January 14, 2015: Events Preceding the Shooting
On January 14, 2015, at 9:01 a.m., Dorton sent a facsimile
transmission to NBG, directed to Brown, titled “void trustee upon
sale” and asserting that NBG neither owns the property nor holds
the status of a landlord with any rights to enter the property.
Balfany directed Brown and a crew of men to the house on
59th Place to change the locks. Brown first went alone to post a
notice and secured a handwritten notice to the screen door with
tape, together with NBG’s deed to the property and Brown’s contact
information. At 12:52 p.m., Brown returned to the house with
Hector Tobar, Daryl Brackens, and two other workers to change the
locks. James Mendoza joined them from a different job site.
However, on arrival at the home, a staff member from Brown’s
office informed him “the tenant had contacted” NBG. Brown was
told to wait on changing the locks until the tenant arrived. Brown
and his crew waited for the tenant.
At 12:55 p.m., Dorton called 911 to report a burglary at his
home. Dorton stated that he was not at home, but was watching
4
the events remotely via a security camera.3 Dorton said there were
multiple males at his house. When asked by the operator whether
Dorton could see any type of instrument they might have to pry
open the door, he responded that, “[i]t looks like they have some
tools. I can’t tell what they are though.” When the operator asked,
“No one is supposed to be at your house at this time?” Dorton
responded, “No, no one at all.”
Los Angeles Police Department (LAPD) Officer Andre Dixon
and his partner arrived at the house after hearing a radio report of
a possible burglary. Officer Dixon spoke to a neighbor, who was
outside. Officer Dixon saw some paperwork on the front door, and
then walked around the house to ensure it was secure. He also
spoke to someone over the telephone. Other officers arrived on the
scene.4 Officer Dixon and his partner left the location.5
At 1:17 p.m., NBG attorney Richards called Dorton to follow
up on his phone conversation with Balfany, to address Dorton’s
prior threat of deadly force.6 Richards told Dorton he could not use
deadly force simply because “some locks are being changed and keys
are being provided.” Dorton disagreed. Richards told Dorton he
would be provided with a set of keys. Richards’ goal was to
ascertain whether Dorton had in fact threatened deadly force and to
3 The audio recording of the 911 call was played for the jury.
4Officer Dixon testified that a burglary call, in light of the
potential serious nature, will typically bring in immediate response
from any available police vehicle in the immediate area.
5Although video footage of Officer Dixon’s visit to the house
was played for the jury during his testimony, no testimony
regarding the time of his arrival or departure was elicited.
6 Richards testified to the specific time of the call after his
recollection was refreshed with his telephone bill.
5
assuage Dorton by letting him know they had purchased the
property as a foreclosure and were simply seeking to secure it.
At 1:55 p.m., Officers Jorge Martinez and his partner arrived
at the home in response to a call from a woman about a civil
dispute. Officer Martinez spoke on the telephone with the woman
who had contacted police. Officer Martinez gave the woman’s
telephone number to Brown and told Brown to contact her so they
could possibly resolve the issue. Brown showed Officer Martinez a
purchase deed. Brown stated they were planning to change the
locks and give keys to the tenant. Officer Martinez advised Brown
not to change any of the locks at the property and to go through the
court process. Officer Martinez left at 2:17 p.m.
4. January 14, 2015: The Shooting
Shortly after the police left, Brown spoke with Balfany on the
phone. Balfany stated it was okay for the men to start changing the
locks, and Brown directed them to do so. Brown planned to
continue waiting for the tenant after they completed the lock
change. At about 2:30 p.m., Mendoza, Tobar, and Brackens started
to change the locks.
Tobar used a pry bar and a hammer to break the lock on the
outer metal security door. Tobar and Mendoza were attempting to
remove the front door knob to exchange it with a different door
knob. Brackens went across the street to his truck to change the
battery on one of the drills.
Brown saw Dorton come running from the corner of 59th
Place. Dorton pointed his gun at the men on the porch and said,
“Motherfuckers, this is my house,” and “get the fuck off my porch.”
Brown ran off the property, across the street. Tobar, standing on
the porch, saw Dorton sweep his left hand over the gun and “rack”
it. Tobar put his hands up and then ran off to the side of the
property.
6
Mendoza, who had been standing behind Tobar, “smacked the
gun” out of Dorton’s hand, and it fell into a small puddle. Mendoza
attempted to grab the gun, but Dorton pushed him and managed to
get hold of the gun again. During the struggle, Mendoza dropped
the drill in his hand. Mendoza grabbed a hammer, swung it
downwards at Dorton in self-defense, but missed. Mendoza saw
Dorton aiming the gun at him and reacted by using his left hand to
grab Dorton’s hand that was holding the gun. Mendoza tried to
take the gun away from Dorton again to avoid getting shot. The
two men got into a “wrestling match” for the weapon. Mendoza
tried to push the gun away from his side, but Dorton kept pulling it
back in. As Dorton pulled his arm back inward, he shot Mendoza.
Mendoza swung his hammer at Dorton, but missed again. Mendoza
ran towards Tobar and collapsed. Tobar called 911.
After the shooting, Dorton appeared to pick up something
from the ground and put it in his pocket. Dorton then went to the
front lawn, looked around, and ran away. Video footage showed
Dorton running from the property at 2:36 p.m. Tobar was already
on the phone with police at this point.
Brackens testified that while he was across the street, in his
truck, he saw Dorton walk toward the porch and then saw Dorton
wrestling with Mendoza. Brackens heard a popping noise.
Brackens grabbed a .38 revolver from his tool box, and ran down the
street. Brackens returned a minute later and saw one of his co-
workers collapse near the jet skis by the house. Brackens put his
gun in his pocket and went to help his co-worker.
Officer Martinez and his partner responded back to the house.
He saw Mendoza lying on the ground. Mendoza was taken to the
hospital, where it was determined he had been shot once in the
abdomen.
7
5. After Calling 911, Dorton is Detained and Interviewed
by Police
At 2:36 p.m., Dorton called 911 and reported that he had been
struck on the head and the lip by “a metal tool or something.”
Dorton said his mouth was bleeding. 7 Dorton said that people had
been breaking into his house. When the operator noted they were
responding to a shooting at the same address, Dorton responded,
“It’s the same incident.” When the operator asked, “So, nobody got
shot?” Dorton responded, “I think somebody got shot, yes.” Dorton
stated he was three blocks away from the house. Dorton stated the
police had been out there twice that day after he told them men
were trying to break into his house. Dorton stated, “I called and the
tenant called.”
LAPD Officer Joseph Franco and his partner located Dorton
two blocks from the residence. Dorton said he had a gun in his
right pocket. The officers found a .45 caliber Glock and a magazine
with eight rounds. Officer Franco noticed there was an expended
casing inside the barrel. He examined Dorton, who had a lip injury
and complained of an injury to the top of his head. An EMT treated
Dorton, who was given a bandage and an ice pack for his lip.
Dorton declined to be transported to the hospital.
LAPD Detective Brad Golden interviewed Dorton later that
day.8 During the interview, Dorton told Detective Golden that he
lived at a different address on West 58th Street. Dorton stated,
“[T]hose guys were breaking into my house.” He explained he had
been calling the police since about 1:00 p.m. that day, and they had
come out on three or four occasions. Dorton received updates on the
men’s actions because he had remote cameras on the property. He
7 The audio recording of the 911 call was played for the jury.
8 An audio recording of the interview was played for the jury.
8
also spoke to his neighbor on the telephone. Dorton stated that one
of the men, who may have been “the Freddie Brown guy or not” was
“literally trying to break in.” Dorton added, “I guess they had
crowbars and things.” Dorton said there had been numerous
attempts to break into his house in the past.
After Detective Golden observed that burglars typically would
knock a few times and then break into the property, Dorton
responded, “Okay, I know you guys have already talked to them so
you already know they were attempting to change the locks. So,
that’s what they were there for.” Dorton followed this statement by
commenting that while the men may have told police they were
there to change the locks, “they were coming there to break into the
house. Period.” When asked why the men would proceed to break
into the house after the police had already spoken with them and
obtained identification, Dorton responded, “Because I think they’re
just some fraudulent guys that were trying to not go properly
through the court system . . . and they aren’t calling any of the
officers to come assist them with doing whatever it was they were
doing.” When Detective Golden noted that Dorton had mentioned
one of the men by name (Freddie Brown) and asked him how he
knew that name, Dorton responded, “Because I’ve talked to Freddie
before and you know I assumed that was probably who was there.”
When asked why he had talked to Freddie before, Dorton
responded, “Because when the foreclosure sale originally occurred
he contacted me and we had a conversation.”
6. The Police Investigation
Detective Golden confiscated a DVR at the house. Videos
were downloaded from the DVR. No shell casings were recovered
from the scene.
A firearms expert examined the .45 caliber Glock model 30
firearm taken from Dorton and it was deemed fully functional. The
9
firearm had a trigger pull of six-and-a-quarter to six-and-a-half
pounds. If someone had his hands over the slide of the firearm
when it was fired, it could prevent the shell casing from being fully
ejected.
B. Defense Evidence
Karen Bennett-Green, Dorton’s neighbor, had known Dorton,
his wife, and their children for approximately 13 years. She further
testified that Dorton and his family currently lived next door to her
on West 59th Place. She did not know why Dorton would list an
address on 58th Street as his residence.
Defense counsel recalled Officer Martinez, who confirmed
that he told Brown not to change the locks, but to use the eviction
process. Brown stated that he would do so. Brown also showed
Officer Martinez a business card with Officer Dixon’s name on it,
which contained writing stating that it was a civil matter, not to
change the locks, and to go through the eviction process.
C. Charges and Jury Verdict
The case proceeded to trial on the following charges: attempted
murder (Pen. Code, §§ 187, subd. (a), 664; count 1); assault with a
semiautomatic firearm (id., § 245, subd. (b); counts 2 & 3); and
discharge of a firearm with gross negligence (id., § 246.3, subd. (a);
count 4). The indictment also charged the following enhancements:
personal use and discharge of a semiautomatic handgun in the
commission of count 1, causing great bodily injury (id., § 12022.53,
subds. (b), (c) and (d)); personal use of a semiautomatic handgun in
the commission of counts 2 and 3 (id., § 12022.5, subd. (a)); and
personal infliction of great bodily injury in the commission of both
counts 1 and 2 (id., § 12022.7, subd. (a)).
The jury returned a verdict of attempted voluntary
manslaughter (Pen. Code, §§ 190.2, subd. (a), 664) as a lesser
included offense to count 1, and assault with a semiautomatic
10
firearm as alleged in counts 2 and 3. The jury found true the gun
use and great bodily injury enhancements. Dorton was found not
guilty of attempted murder (count 1) and not guilty of negligent
discharge of a firearm (count 4).
D. Post-trial Proceedings
Following the February 3, 2017, jury verdicts, sentencing
repeatedly was postponed as a result of a number of posttrial
applications and motions filed by Dorton, including a motion for
new trial. After a lengthy series of hearings, the trial court issued a
31-page memorandum of decision denying the motion for new trial.
This appeal followed.
DISCUSSION
I
Rulings on Evidence of Ownership and
Possession of the Property
Dorton contends that the trial court erred and violated his
constitutional rights by admitting the prosecution’s evidence
regarding NBG’s claimed ownership of the property, and by unduly
limiting the defense evidence addressing Dorton’s right to possess
the property. Respondent counters that the court’s rulings neither
precluded Dorton from presenting his theory of defense, nor
amounted to an abuse of the trial court’s discretion to reasonably
limit evidence. We agree with the respondent.
A. Background
1. Trial Court’s Admission of Evidence Regarding NBG’s
Ownership of the Property
During pretrial discussions, defense counsel argued that any
evidence about NBG’s ownership of the property was “not relevant
in this case” because “[t]he only issue is possession,” which “gives
rise to the right to possess and defend your property.” The court
11
pointed out that the relevant jury instructions speak of the right to
use force as an owner and possessor (see subsection 3, post), thus
making ownership relevant, and asked defense counsel if he was
“conceding that at that time [his] client did not have ownership of
the premises.” Counsel responded, “Absolutely not.” When the
court asked defense counsel on what basis he was asserting that
Dorton was still the owner, when there was evidence of the NBG
deed, counsel replied “[t]hat it was a fraud. It wasn’t proper. But I
don’t intend to present anyone regarding ownership.”
After further discussions on the issue, the court pointed out
defense counsel was undermining his own position because if there
was “nothing in the record whatsoever” showing any ownership
dispute (and NBG had legal title), then there may be an argument
that NBG agents were not trespassing on the property. The court
further pointed out that NBG’s ownership was relevant to explain
the context in which the incident arose. The court added, however,
that Dorton could testify that he believed he owned the property,
which was relevant to explain how the disagreement began and
why Dorton may have taken the position he took. When defense
counsel stated that he would “bring in the original sales documents”
the court responded, “I’m going to exclude anything beyond just [a]
simple assertion . . . [pursuant to Evidence Code section] 352,” but
reiterated that Dorton could “testify based on what he believed,”
i.e., “if he testifies, he can say I don’t think they own the property.”9
9 During trial, defense counsel told the court he intended to
play the entirety of the police interview with Dorton “so my client
doesn’t have to testify.” As noted in our summary of trial evidence,
Dorton told the police the men on the property were “just some
fraudulent guys that were trying to not go properly through the
court system.”
12
Later in the trial, while discussing the jury instructions,
defense counsel again raised the issue of ownership to argue while
NBG may be the owner and “have a right to possess,” the men who
entered the property had no such right. Counsel argued that
because the men who came to change the locks were not named
partners in NBG, their rights were clearly inferior to those of
Dorton, who was identified by name in his grant deed. The court
responded by pointing out that if the men were there at the behest
of NBG, then it would be “no different than one of the three owners
or Mr. Balfany” going to the property.
2. Trial Court’s Limitation on Evidence Regarding
Unlawful Detainer Actions as Relevant to Dorton’s
Possession of Property
Prior to trial, the prosecutor moved to exclude three unlawful
detainer actions as both irrelevant and excludable under Evidence
Code section 352. The prosecutor noted that the first unlawful
detainer action filed on December 26, 2014, was denied for violation
of a three-day notice to quit rule, while the two subsequent actions,
filed May 18, 2015, and June 17, 2015, resulted in rulings in favor
of NBG properties—including restitution for past rent and the right
to remove Dorton from the residence. The prosecutor noted that
Dorton had appealed the latter rulings, and was ordered to pay
$150 per day in rent to NBG pending his appeal.
The prosecutor also sought to exclude any argument that
Dorton “had [a] status within the house,” stating he had lost any
legal status following the sale and recordation of the trustee’s deed.
Citing a bankruptcy case, Edwards v. Wells Fargo Bank, N.A.
(Bankr. 9th Cir. 2011) 454 B.R. 100, 106, the prosecutor noted that
once a deed is recorded following a foreclosure sale in California, an
original borrower, such as Dorton, no longer retains any interest in
13
the property and is essentially deemed a “squatter” within the
home.
At a subsequent hearing on the issue, the court asked defense
counsel if he was going to claim Dorton had the right to possession
of the premises at the time of the incident. Counsel stated, “Right,”
because Dorton was never ordered out of his home pursuant to an
unlawful detainer action. He maintained that such an action would
be the sole remedy for NBG to take possession—regardless of
whether the occupant is a tenant or “squatter,” “because there are
squatter[’s] rights.”
The court asked if counsel was intending to assert Dorton’s
right to possession in order to rely on CALCRIM Nos. 3475 and
3476, which give a person the right to use force in certain situations
to eject trespassers or intruders. Defense counsel responded,
“Partially.” Counsel explained Dorton had the right to tell the men
to leave the property, and when they refused, to point his weapon;
thereafter, a squabble ensued during which his client was
“attacked.” The court pointed out that under CALCRIM Nos. 3475
and 3476, whether Dorton had any right to the property as either
an owner or possessor was a factual issue for the jury to decide.
The court ascertained that only one unlawful detainer action
had been filed before the shooting incident, and asked defense
counsel if he was seeking to introduce any evidence with respect to
any of the three unlawful detainer cases. Defense counsel stated
that “[t]he only one we would ask for is the initial one where my
client prevailed,” and stated he wanted to introduce a certified copy
or stipulation to show Dorton had “prevailed” in that action which
in turn “allow[ed] him the legal right of possessor of the property.”
The prosecutor pointed out that if the court let in the
judgment there would have to be an explanation as to why it
favored Dorton, noting it was dismissed simply due to a “technical
14
violation.” The court stated the important thing “would be an
action was filed and that there was no judgment entered against
him for whatever reason.” The court noted it sounded like the
prosecution’s evidence, at best, showed NBG owned the property,
but that did not rule out the possibility that Dorton had a right to
live there until he was lawfully evicted.
In its subsequent ruling, the court observed the bankruptcy
case (Edwards) cited by the People spoke more to ownership and
was not entirely clear on the issue of possessory interest. The court
stated it appeared undisputed that Dorton was living in the house
at the time of the incident.10 The court thus determined the jury
should receive evidence that while NBG had a deed of trust
purportedly transferring ownership of the property, there had been
no judgment or order (i.e., a writ of possession) requiring Dorton to
leave the property. Accordingly, Dorton “had [a] sufficient
possessory interest that might invoke [the CALCRIM Nos. 3475 and
3476] instructions” and allow him to argue “that he was taking
actions to protect his possessory interest.” The court, however,
found the two detainer actions filed after the incident were not
relevant, and further ruled it would limit the evidence under
10 After hearing the evidence at trial, the court retreated from
this “undisputed” observation, but noted there was at least enough
evidence that Dorton occupied or lived at the home to warrant the
giving of CALCRIM Nos. 3475 and 3476. (See People v. Roldan
(2005) 35 Cal.4th 646, 715 [a trial court need only instruct on a
defense theory when the evidence is substantial enough to merit
consideration by the jury], disapproved on another ground in People
v. Doolin (2009) 45 Cal.4th 390, 321, fn. 22; accord, People v. Barton
(1995) 12 Cal.4th 186, 195.) The court explained that if Dorton
possessed the property, there remained the factual question of
whether NBG was a trespasser and whether the force used by
Dorton was reasonable under the circumstances.
15
Evidence Code section 352 to avoid relitigating the first unlawful
detainer action. Consistent with this ruling, the court allowed
defense counsel to elicit testimony at trial that an unlawful detainer
action had been filed by NBG against Dorton, but that NBG had not
been awarded a writ of possession. The court sustained the
prosecutor’s objections when defense counsel sought to elicit
testimony that Dorton “won” the unlawful detainer action or that
NBG “lost” the action.11
3. Instructions on Defense of Property
The court instructed the jury with CALCRIM No. 3475 (right
of lawful occupant to eject trespasser), and CALCRIM No. 3476
(right of owner or possessor to use force to protect property from
harm).12
11During pretrial discussions, defense counsel argued that
the unlawful detainer action showed that his “client was awarded
possessory interest in the property.” The court responded, “That’s
not what happened,” noting the case was “filed and dismissed.”
12 As given by the trial court, CALCRIM No. 3475 reads:
“The lawful occupant of a home may request that a trespasser
leave the home. If the trespasser does not leave within a
reasonable time and it would appear to a reasonable person that the
trespasser poses a threat to the home or the occupants, the lawful
occupant may use reasonable force to make the trespasser leave.
[¶] Reasonable force means the amount of force that a reasonable
person in the same situation would believe is necessary to make the
trespasser leave. [¶] If the trespasser resists, the lawful occupant
may increase the amount of force he or she uses in proportion to the
force used by the trespasser and the threat the trespasser poses to
the property. [¶] When deciding whether the defendant used
reasonable force, consider all the circumstances as they were known
to and appeared to the defendant and consider what a reasonable
person in a similar situation with similar knowledge would have
16
The court refused to give CALCRIM No. 3477 (presumption
that resident was reasonably afraid of death or great bodily injury),
finding insufficient evidence to support it. The court pointed out
that this did not mean that Dorton was precluded from arguing the
force he used was reasonable; it simply did not give him the benefit
of the presumption contained within CALCRIM No. 3477.13
believed. If the defendant’s beliefs were reasonable, the danger
does not need to have actually existed. [¶] The People have the
burden of proving beyond a reasonable doubt that the defendant
used more force than was reasonable. If the People have not met
this burden, you must find the defendant not guilty of [c]ounts 1, 2,
3 and 4.”
As given by the trial court, CALCRIM No. 3476 reads:
“The owner or possessor of real property may use reasonable
force to protect that property from imminent harm. [¶] Reasonable
force means the amount of force that a reasonable person in the
same situation would believe is necessary to protect the property
from imminent harm. [¶] When deciding whether the defendant
used reasonable force, consider all the circumstances as they were
known to and appeared to the defendant and consider what a
reasonable person in a similar situation with similar knowledge
would have believed. If the defendant’s beliefs were reasonable, the
danger does not need to have actually existed. [¶] The People have
the burden of proving beyond a reasonable doubt that the defendant
used more force than was reasonable to protect property from
imminent harm. If the People have not met this burden, you must
find the defendant not guilty of [counts] 1, 2, 3 and 4.”
13 CALCRIM No. 3477 reads: “The law presumes that the
defendant reasonably feared imminent death or great bodily injury
to (himself/herself)[, or to a member of (his/her) family or
household,] if: [¶] 1. An intruder unlawfully and forcibly (entered/
[or] was entering) the defendant’s home; [¶] 2. The defendant knew
[or reasonably believed] that an intruder unlawfully and forcibly
(entered/ [or] was entering) the defendant’s home; [¶] 3. The
17
B. Relevant Legal Principles
“ ‘As a general matter, the “[a]pplication of the ordinary rules
of evidence . . . does not impermissibly infringe on a defendant’s
right to present a defense.” ’ [Citations.]” (People v. McNeal (2009)
46 Cal.4th 1183, 1203.) We review the trial court’s rulings on the
admission and exclusion of evidence for abuse of discretion. (People
v. Harrison (2005) 35 Cal.4th 208, 230; People v. Kipp (2001) 26
Cal.4th 1100, 1123 [relevance objection]; People v. Greenberger
(1997) 58 Cal.App.4th 298, 352 [Evid. Code, § 352 objection].)
“The trial court has broad discretion in determining the
relevance of evidence [citations], but lacks [the] discretion to admit
irrelevant evidence.” (People v. Crittenden (1994) 9 Cal.4th 83,
132.) The trial court also has discretion to exclude otherwise
admissible evidence “if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate
undue consumption of time or (b) create substantial danger of
undue prejudice, of confusing the issues, or of misleading the jury.”
(Evid. Code, § 352.)
C. We Discern No Error in the Trial Court’s Admission of
Evidence Regarding NBG’s Ownership
Dorton contends the trial court erred by allowing the
prosecution to present evidence of NBG’s ownership of the property,
because NBG’s purported ownership “was not relevant to resolution
intruder was not a member of the defendant’s household or family;
[¶] and [¶] 4. The defendant used force intended to or likely to cause
death or great bodily injury to the intruder inside the home. [¶] . . .
[¶] The People have the burden of overcoming this presumption.
This means that the People must prove that the defendant did not
have a reasonable fear of imminent death or injury to
(himself/herself)[, or to a member of his or her family or household,]
when (he/she) used force against the intruder. . . .” (Italics added.)
18
of the issue of whether [Dorton] acted reasonably” during the
confrontation. We disagree.
First, as noted by the trial court, one of the defense
instructions, CALCRIM No. 3476, confers a right to an “owner or
possessor” to use reasonable force under certain circumstances.
(Ibid.) During pretrial discussions, Dorton stated he would not
concede that NBG was the legal owner of the property, but instead
claimed their deed was a “fraud.”
During trial, defense counsel elicited testimony that Dorton
told police during his interview that “fraudulent people” were
“trying to get into his house.” During closing argument, defense
counsel stated, “how many people believe that they have a deed yet
the family is still living there.” (Italics added.) Counsel asserted
that NBG “lost” their unlawful detainer action and that “while
there are people who run housing scams particularly in minority
neighborhoods,” the prosecutor was telling the jury “[t]hat doesn’t
happen.” Defense counsel told the jury there were instructions that
specifically allow Dorton to protect his house and allow him to
protect his home and that the “property [belongs to the people] who
live there [and] continue to live there . . . live there today,” i.e.,
Dorton. Defense counsel stated “where is your deed Mr.
[prosecutor],” and then accused NBG attorney Richards of lying
when he stated he had seen the NBG deed, and purported to know
its validity, accusing him of being a swindler in other business
dealings. Given this, Dorton’s claim that the only real issue was
“possession” is specious and spurious; evidence of NBG’s ownership
was clearly relevant.
Second, the trial court properly determined that NBG’s
ownership was relevant to explain the context in which the incident
arose, and whether Dorton’s response was reasonable under the
circumstances. Under CALCRIM No. 3475 (right of lawful occupant
19
to eject trespasser), the jury was instructed that if a “trespasser
does not leave within a reasonable time and it would appear to a
reasonable person that the trespasser poses a threat to the home or
the occupants, the lawful occupant may use reasonable force to
make the trespasser leave.” The instruction further states that in
“deciding whether the defendant used reasonable force” the jury
must “consider all the circumstances as they were known to and
appeared to the defendant,” and “consider what a reasonable person
in a similar situation with similar knowledge would have believed.”
(CALCRIM No. 3475, italics added.) Under CALCRIM No. 3476
(right of owner or possessor to use force to protect property from
imminent harm), the jury was instructed that in “deciding whether
the defendant used reasonable force, consider all the circumstances
as they were known to and appeared to the defendant and consider
what a reasonable person in a similar situation with similar
knowledge would have believed.” (Ibid., italics added.)
During trial, Dorton’s counsel aggressively cross-examined
NBG witnesses with accusations that the NBG work crew came to
commit a “home invasion” and clean out the house. In closing,
counsel noted that one of the NBG crew members had a prior
conviction for receiving stolen property and “the man’s consistently
a person who would steal your stuff,” and “there are burglars and
people like every witness the prosecution called who are more than
happy to take what is yours.” Counsel further argued that NBG
“[k]ind [of] got a group of thugs together to come up in their cars”
and “try to steal.” He argued that “most thieves are cowardly they
don’t come in the morning when you’re there,” and “they don’t come
[at] night after work” but instead “they bring five people because
. . . they hope that oh, please God [let us] fin[d] some little old lady
at home let us find some old man at home let us fin[d] a kid who is
home sick.” Counsel stated “what they prey on this isn’t news[.]
20
I’m not disclosing government secrets[.] You know that is what
they do.”
The prosecutor, in turn, elicited testimony that the NBG crew
came only to change the locks and communicated that intention to
Dorton through posted notices and conversations in which they
offered to give him a copy of the keys. The prosecutor further
elicited testimony that the NBG crew did not bring “dollies” or bags
to collect items from the home, and presented still shots of the
surveillance footage showing that the NBG crew brought a drill and
a package with a doorknob and locks.14 During closing argument,
the prosecutor told the jury “the most important thing that your job
will be is to figure out . . . what the defendant knew and what it
means.” The prosecutor argued that Dorton knew the home had
been purchased at a foreclosure sale and that NBG was now the
owner of the property. Dorton further knew that the NBG work
crew was coming solely to change the locks—not to assault anyone
or do harm. The prosecutor pointed out that Dorton was monitoring
the house through a remote camera via his cell phone (as he told
police when calling 911), and thus could see that the men were
standing outside of the house and working on changing the locks;
there was nothing sinister or mysterious in their actions. The
14 In his closing argument, defense counsel mocked the
testimony regarding the absence of dollies, stating, “And the
prosecutor, government’s lawyer, says we didn’t bring dollies
because anything that you take of mine is okay as long as you don’t
use a dolly[,] right[?] Can I come and take all your stuff[?] Can I
get whatever I can carry[?]. You know he would have. No one here
would let this happen. . . . Any of you had friends[,] people that had
your house burglari[zed?] Every time you walk in after that you . . .
worry who[’s] been there. . . . What law says you get to evade [sic]
my home[?] None.” (Italics added.)
21
prosecutor argued that Dorton’s act of running onto the property,
pointing and racking his gun at the crew, was “a violent
overreaction” and unreasonable under the circumstances. In light
of the evidence and position of the parties, the evidence regarding
NBG’s purchase and ownership of the property (and associated
communications with Dorton) was critical to the jury’s assessment
of what, if any, immediate threat Dorton was facing on the day in
question.
To the extent Dorton argues the trial court erred in
preventing him from introducing his original sales documents “to
counter NBG’s claims of ownership,” leading to the prosecutor
exploiting this ruling by “remind[ing] the jury in closing argument
that they had never been shown [Dorton’s] deed to the property,”
the argument is misleading.
The fact that Dorton purchased and owned the property prior
to the NBG foreclosure sale was wholly undisputed and
acknowledged throughout trial. Thus, to introduce his “original”
sales documents would have only consumed unnecessary time and
potentially misled the jury into believing there was some greater
significance to these documents than merely establishing Dorton’s
prior ownership. As such, the court properly excluded the evidence
under Evidence Code section 352. In closing argument, the
prosecutor merely pointed out that Dorton had not produced a deed
“that postdates November . . . November of 2014.”
Accordingly, we find no error in the trial court’s evidentiary
rulings regarding ownership of the property.15 (People v. Harrison,
15 Dorton also argues that the ownership evidence “lead the
jurors to believe that NBG was not a trespasser,” and thus “[t]he
trial court’s error in admitting NBG’s evidence of ownership
resulted in the removal of [his] ability to assert a right to defend his
22
supra, 35 Cal.4th at p. 230; People v. Kipp, supra, 26 Cal.4th at
p. 1123; People v. Greenberger, supra, 58 Cal.App.4th at p. 352.)
D. We Discern No Error in the Trial Court’s Evidence
Code Section 352 Limitations on Evidence Regarding
Possession
Dorton contends he was denied his right to present a defense
“when the trial court refused to allow defense counsel to introduce
evidence that [Dorton] was in legal possession of the property and
NBG had no right to possession without first being awarded a writ
of possession.” Dorton identifies the evidence the trial court
improperly excluded on the issue of possession as follows: (1) “a
certified copy of the order from the first unlawful detainer action in
December 2014 to show that [Dorton] had prevailed,” and (2) “a
witness who was a real estate expert to explain the law related to
unlawful detainer and self-help evictions.” (Italics added.) As we
explain below, the trial court properly limited the evidence
regarding the unlawful detainer action under Evidence Code section
352, while it was defense counsel who decided against calling an
expert witness on such matters.
home and eject trespassers.” However, Dorton’s argument does not
undermine the relevance of the ownership evidence (or correctness
of the court’s evidentiary ruling), and instead echoes an argument
counsel made in the trial court—i.e., that NBG had no legal right to
change locks and should be deemed a trespasser as a matter of law.
On appeal, Dorton does not brief any instructional error or infirmity
with regard to the trial court’s giving of CALCRIM No. 3475, but
points out that “the jury received no evidence or instruction on the
need for lawful owners to use the judicial process to obtain a writ of
possession to retake possession of the property.” The implication of
the latter point is addressed in our discussion regarding the trial
court’s limitation on the admission of evidence regarding the
unlawful detainer actions.
23
First, with regard to the unlawful detainer action, defense
counsel did not dispute the prosecutor’s representation that the first
action was dismissed or denied due to inadequate service of a three-
day notice to quit. Nor did counsel dispute that the subsequent
unlawful detainer actions were resolved in favor of NBG. Given
this, the trial court properly allowed Dorton to elicit testimony that
NBG had not been awarded a writ of possession prior to the
incident in question, and precluded Dorton from introducing the
certified copy of the judgment to suggest he had been “awarded” a
“possessory interest” in the property. The trial court also
appropriately sustained the prosecutor’s objections when defense
counsel sought to elicit testimony that Dorton “won” (or NBG “lost”)
the first unlawful detainer action. These limitations helped ensure
that the jury was not misled or confused into believing that the
parties litigated the validity of NBG’s title in the initial unlawful
detainer action, or that a court actively bestowed upon Dorton a
“legal” entitlement to possession. Indeed, while defense counsel
asserted below that the unlawful detainer judgment demonstrated
he was effectively “awarded possessory interest in the property”
(italics added), and while Dorton seeks to suggest the same before
this court, the case law he cites prohibiting the use of “self-help” to
oust a tenant or occupant suggests otherwise. (See, e.g., Spinks v.
Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th
1004, 1038 [explaining statutes prohibiting self-help evictions offer
protections to holdover occupants “without regard to the parties’
legal claims to title or possession,” but also noting that “ ‘[a] tenant
holding over without permission is technically a trespasser’ ” (italics
added)].)16 In any event, Dorton’s assertion of evidentiary error (the
16The observation in Spinks regarding the legal status of a
hold-over tenant appears equally applicable to an owner-occupier
24
only issue before us) based on the trial court’s refusal to allow him
to present the initial unlawful detainer judgment in a manner that
would suggest he “prevailed” and was “awarded” a right of
possession, lacks merit. (People v. Greenberger, supra, 58
Cal.App.4th at p. 352.)
Second, with regard to Dorton’s assertion of error due to the
absence of a defense expert on real estate issues, he fails to point to
any ruling by the trial court precluding him from doing so, and the
record indicates defense counsel decided against calling the
expert.17
Prior to trial, defense counsel informed the court he planned
on calling a real estate expert to explain the law with regard to self-
help evictions and that “people can’t come in and change your locks
and lock you out because they say they own the house.” The court
told defense counsel to provide his witness information to the
prosecution. At a subsequent hearing, the court asked defense
counsel whether he had given his witness list to the prosecution.
Counsel responded in the negative, stating he was waiting for the
who remains in the property after sale and recordation of new title.
(See Edwards v. Wells Fargo Bank, N.A., supra, 454 B.R. at p. 106
[“[I]n California, once a foreclosure sale concludes and the
purchaser records the deed in accordance with applicable law, the
original trustor or borrower no longer has an interest or right in the
subject real property . . . [and] the debtor is essentially a
‘squatter’ ”].)
17 Indeed, in his opening brief, Dorton skirts the issue by
simply stating that “[defense counsel] wanted to call a witness who
was a real estate expert.” (Italics added.) He then proceeds to set
forth a summary of the trial court’s rulings on other issues,
including ownership, after which he concludes by arguing that the
trial court’s rulings collectively infringed on his right to present a
defense.
25
court to rule on his motion to exclude evidence “about self help
eviction or things of that nature,” and did not “want to retain and
pay somebody to come in and explain the law.” The court asked
counsel to nevertheless provide names to the prosecution so he
could inquire about conflicts.
During trial, the prosecution called various NBG associates
and workers as lay witnesses to testify to the events that led up to
the incident, including that NBG went to the property to change the
locks on the day of the shooting. In closing argument, the
prosecutor cited the testimony regarding the lock change to argue
that the NBG workers did not pose the type of threat that would
warrant Dorton’s armed response.
Defense counsel not only failed to call a real estate expert as a
defense witness, he also sought to elicit legal opinions from the
prosecutor’s lay witnesses. Thus, in cross-examining NBG owner
Balfany, defense counsel asked him whether he knew it was illegal
for NBG to change locks without a writ of possession. The court
sustained the prosecutor’s objection on the ground that it called for
a legal conclusion. After the prosecutor called NBG attorney
Richards—to elicit his lay testimony regarding his telephone
conversation with Dorton on the day of the incident (which spanned
a total of eight pages)—defense counsel proceeded to cross-examine
Richards by asking him a series of questions about unlawful
detainer actions, ownership, and possessory rights. Defense counsel
proclaimed Richards an “expert” and asked him about the only
lawful way to gain “possession” of a home. Richards responded that
if the home is not vacant and an occupant refuses to leave, then one
must initiate an unlawful detainer action. Richards acknowledged
NBG had not obtained a court judgment to allow possession, but
added no such order is necessary to simply change locks to secure
property. At another point defense counsel asked Richards about
26
his assertion that NBG is the owner of the property. Richards
stated he had seen the deed, it was recorded, and thus he had no
doubt NBG was the owner.18
Given that Dorton himself elicited the “expert” testimony that
he complains of in his opening brief, and has failed to identify any
ruling by the trial court precluding him from calling his own expert
“on self-help evictions,” Dorton’s evidentiary challenges on these
bases must fail.
II
Instructions on Accident or Mistake
In light of the evidence that Dorton and Mendoza struggled
for control of the firearm before it discharged, Dorton contends the
trial court erred in failing to instruct the jury on the defense of
accident. To the extent the trial court had no duty to sua sponte
instruct on the issue, Dorton alleges trial counsel was ineffective for
failing to request the instruction. We find no merit in either
contention.
Penal Code section 26 provides that “[a]ll persons are capable
of committing crimes except those belonging to the following
classes: [¶] . . . [¶] Five—Persons who committed the act or made
18 After counsel sought to elicit testimony regarding
individual members of the NBG work crew and the incident at the
property, the prosecutor objected and the trial court summoned the
parties for a sidebar discussion. At sidebar, the court noted
Richards was not present at the scene and further noted that
Richards had not, so far, testified as an expert—with the possible
exception of some testimony on unlawful detainer actions. After the
court told defense counsel he would sustain objections if counsel
sought to elicit Richard’s legal opinion on the use of force at the
property (which counsel stated he wanted to do in the form of a
hypothetical), defense counsel wrapped up his cross-examination.
27
the omission charged through misfortune or by accident, when it
appears that there was no evil design, intention, or culpable
negligence.” The general defense appears in CALCRIM No. 3404,
which explains that a defendant is not guilty of a charged crime if
he or she “acted without the intent required for that crime, but
acted instead accidentally.” (CALCRIM No. 3404; see also
CALCRIM No. 510 [excusable accident in context of homicide].)
However, the trial court has no sua sponte duty to instruct on
accident because it amounts to “a pinpoint instruction” that
specifically “relat[es] such evidence to the elements of the offense
and to the jury’s duty to acquit if the evidence produces a
reasonable doubt.” (People v. Anderson (2011) 51 Cal.4th 989, 997.)
Dorton concedes he did not request such an instruction and his
assertion of trial court error on this basis therefore must fail. (Id.
at p. 996.)
Nor has Dorton established that trial counsel was ineffective
for failing to request the instruction. As explained by our high
court, “[i]t is particularly difficult to prevail on an appellate claim of
ineffective assistance [of counsel].” (People v. Mai (2013) 57 Cal.4th
986, 1009, italics omitted.) Deficient performance cannot be
established on direct appeal unless “(1) the record affirmatively
discloses counsel had no rational tactical purpose for the challenged
act or omission, (2) counsel was asked for a reason and failed to
provide one, or (3) there simply could be no satisfactory explanation.
All other claims of ineffective assistance are more appropriately
resolved in a habeas corpus proceeding.” (Ibid.)
During closing argument, the prosecutor argued that in light
of Dorton’s conduct leading up to the shooting, including his prior
threats to use deadly force, the shooting of Mendoza was “not an
accident” but “attempted murder.” Defense counsel countered by
stating “accident is not really the issue here.” Instead, defense
28
counsel argued that Dorton initially pointed the gun in defense of
his property, and then was pulled into an “absolute fight for his
life.” Defense counsel stated the prosecutor had the burden of
proving beyond a reasonable doubt that Dorton did not act “in
lawful self-defense.” In subsequently addressing the separate
charge of shooting a firearm in a grossly negligent manner, defense
counsel urged the jury not to convict Dorton of that charge simply
because they might decide “let’s get him for something.” Counsel
asked the jury, “what part [of the shooting] was grossly negligent”—
“not giving the guy the gun?” He then accused the prosecutor of
trying to “get” Dorton with another charge. Defense counsel argued
that Dorton had the right to be fully acquitted and continue his life
unmarred by “a group of thugs coming into [his] house.”
The record shows that defense counsel was seeking a full
acquittal for Dorton and was relying on self-defense to support that
acquittal. It also appears that counsel was concerned that if the
jury’s attention was focused on whether the firing of the weapon
was because Dorton “acted” to pull the trigger by accident or
mistake, as required by an accident instruction,19 they might be
19 CALCRIM No. 510 provides as follows:
“The defendant is not guilty of (murder/ [or] manslaughter) if
(he/she) killed someone as a result of accident or misfortune. Such
a killing is excused, and therefore not unlawful, if:
“1. The defendant was doing a lawful act in a lawful way;
“2. The defendant was acting with usual and ordinary
caution;
“AND
“3. The defendant was acting without any unlawful intent.
“A person acts with usual and ordinary caution if he or she
acts in a way that a reasonably careful person would act in the same
or similar situation. . . .” (CALCRIM No. 510, italics added; People
29
tempted to convict him of the reckless shooting charge by
determining that he created the dangerous situation that allowed
the gun to discharge—and thus was somehow still responsible for
the ensuing result.20 (Cf. People v. Villanueva, supra, 169
Cal.App.4th at p. 54, fn. 12 [stating that if a defendant brandished
a weapon in a criminally negligent manner, “the accidental
(attempted) homicide excuse would not apply”].) By instead
characterizing Dorton’s initial act of pointing his weapon as an
attempt to eject trespassers from his property—and the subsequent
struggle with Mendoza as one in which Dorton purely reacted out of
self-defense—counsel apparently sought to avoid such an
assessment and/or jury compromise. This approach dovetailed with
his argument for acquittal on the charge of negligent discharge of a
firearm on the ground the evidence was in dispute as to whether it
was Mendoza or Dorton who caused the gun to fire, which required
the jury to acquit on this charge.21
v. Villanueva (2008) 169 Cal.App.4th 41, 54 [stating that if a
defendant relies on an accident defense to an attempted murder
charge, the jury should be instructed with CALCRIM No. 510].)
20 Indeed, during closing argument, the prosecutor argued
that Dorton did not act reasonably in response to the incident and
that bringing a gun onto the property was reckless and dangerous.
21 To that end, in discussing how the weapon might have
discharged, defense counsel pointed out that the prosecution’s
ballistics expert had explained that if someone is pointing a gun
and another person grabs and pulls on it, it will cause the gun to
fire even though the holder did not himself pull the trigger.
Counsel then told the jury that if there are two possible sets of
circumstances, both reasonable, and one points to guilt and the
other innocence they must “accept the version that points to
innocence.” Even if counsel’s description of the trigger release
30
In any event, Dorton did not take the stand and testify the
shooting was an accident, nor did he make any statements to police
to that effect. In addition, he did not even mention the shooting
during his 911 call, but instead stated he had been struck by a
metal object. As such, there was no testimony (or statement) by
Dorton regarding an accidental discharge of the weapon. In
contrast, Mendoza testified that during the struggle, he tried to
push the gun away from his side, but Dorton kept pulling it back in.
As Dorton pulled his arm back inward, he shot Mendoza.
In light of this record, we cannot conclude that defense
counsel’s failure to seek an instruction on accident or mistake—and
instead rely on self-defense—was either ill-considered or
strategically untenable. (See generally People v. Lewis (1990) 50
Cal.3d 262, 288-290.) Whatever other approach might have been
available, we are not in a position on this record to fault the one
chosen. “There are countless ways to provide effective assistance in
any given case. Even the best criminal defense attorneys would not
defend a particular client in the same way.” (Strickland v.
Washington (1984) 466 U.S. 668, 689-690 [104 S.Ct. 2052, 80
L.Ed.2d 674].) Accordingly, we must deny relief on Dorton’s
ineffective assistance of counsel claim.
technically could have been consistent with a theory of accident or
misfortune, we cannot, on this record, fault counsel’s strategic
decision to divert the jury’s attention away from any assessment of
culpability regarding the trigger release itself, and instead
maintain its focus on the self-defense nature of the struggle as a
whole.
31
III
Trial Court’s Purported Ex Parte Communication
With Jurors
Dorton contends the trial court’s ex parte communication with
jurors deprived him of his constitutional right to be personally
present and represented by counsel at all critical stages of the
proceedings. As explained below, no basis for reversal appears on
this record.
A. Background Facts
On February 1, 2017, the jury retired to deliberate after
hearing closing arguments and was dismissed for the day at
4:30 p.m. After the jurors exited the courtroom, the court noted to
counsel that it was aware that the alternate juror “has some issues
with going past her time.” The court added it was “not going to say
anything unless she does, but if she has a problem I think we
should consider perhaps letting her go to work and if we need her[,]
calling her in. I don’t think she works too far away.” Both sides
expressly stated that this would be “fine” with them. The court
concluded the matter by stating, “Let’s see how it goes tomorrow
and maybe I’ll have the bailiff talk to her.”
The jury resumed deliberations the next day at 9:40 a.m. and
submitted a jury question at 2:12 p.m., asking the court to provide a
definition or example of the phrases “a definite and unambiguous
intent” and “circumstances outside the plan” within the meaning of
CALCRIM No. 600, the attempted murder instruction. By
stipulation of the parties,22 the court provided a response, and the
jurors recessed for the day at 4:15 p.m.
22The record reflects that cocounsel Jaaye Person-Lynn was
present telephonically for the question and stipulated to the given
response.
32
The jurors resumed deliberations the following morning,
February 3rd, at 10:00 a.m. At approximately 11:15 a.m., co-
defense counsel Michael Fletcher told the court he wanted to
address two issues. First, he stated he “was told that there is a
juror who has communicated that he or she—particularly, she—
cannot stay any longer passed [sic] today.” Counsel stated that “[i]f
that is true, [he] would have liked to have been notified about it”
and that he wanted “to know if that was, in fact, conveyed and if
any response was given.” Second, counsel stated he was not present
the day before when the court responded to the jury question, and
that while the court’s response likely benefitted Dorton, he believed
it was in error. The court noted that cocounsel Person-Lynn had
stipulated to the given response and that it believed the response
was correct and appropriate.
As to counsel’s first inquiry, the court responded as follows: “I
was advised by the court staff that there are two jurors who
expressed issues with the time. One, being the alternate juror,
who, to my understanding, was late arriving and may not have even
arrived late, but she’s not deliberating. The other is the juror who
is seated in seat No. 7, who, I was advised, indicated that she
cannot be here beyond today. I will note that I told them that the
case would be concluded today.[23] I have made no inquiries of
23 Prior to trial, while discussing potential hardships, the
court told prospective jurors it estimated the trial would take about
two to three weeks, and conclude no later than February 3rd. In so
estimating, the trial court explained that “[a] trial is fluid. It’s
dynamic. It changes. When I tell you how long it will be, it’s an
estimate. It might be a little longer. Might be a little shorter.” The
court stated that part of its estimate included “an estimate on [the
jury’s] deliberations” and explained, “Once you get the case as a
juror you go back in the room and you deliberate to come up with a
33
them. I do not want to pressure them. I don’t want to interfere with
what they’re doing, so what do you want me to do?” (Italics added.)
Fletcher responded that he wanted the court to bring out the
juror and “inquire whether she has shared that information with
her fellow jurors” because he was concerned they may “feel a time
pressure or time constraint,” which is not a valid consideration.
The court responded by saying, “Well, as to the alternate, we
discussed allowing her to go to work. . . . If we did have to call her
in, I don’t know how much delay that would cause.” As to the
sitting juror, the court stated, “My first reaction would be it’s only
11:15. I share your concern. I don’t want them to rush, but perhaps
we should wait and see how things develop.” The court added,
“Why don’t we—I mean, obviously, she came to us with that
information—so, it’s important to her. Why don’t we just wait.
When it gets to the afternoon, I think I’d be inclined to inquire at
some point. But it’s 11:00 o’clock in the morning, so I think it’s a
little premature.” (Italics added.) “As to the alternate,” the court
added, “if the two of you are fine with her going to work, the
problem is if something happens and I have to excuse someone and
she’s not going to be here. I think if she’s here today, we should keep
her here today.” (Italics added.) Fletcher stated that he thought
they’d already agreed to allow her to go to work. The court
responded, “[t]he two of you agreed she could go back. She was here
yesterday and she didn’t request, so I didn’t want to bring it up with
her until she brought it up with me. She did apparently contact the
staff today and indicated she would have difficulty serving past
today.” (Italics added.) Fletcher responded, “She said that. And I
decision. There’s no limit on that. I don’t know how long that’s
going to take. Sometimes jurors deliberate for a couple of hours.
Sometimes it’s days. Sometimes longer. So I don’t know.”
34
don’t—I mean, we promised her she would be released. I mean, I’m
not encouraging that. I thought she’d gone back to work to buy us
some time.” The court responded, “Given how much time we’ve all
invested in this, if they express concerns, I’m certainly going to see
if there’s anything we can do—if they don’t finish today—to have
them come back and finish the task that they’re supposed to be
doing. But, once again, if it looks like they can’t do that without me
pressuring them, we will take that up at the appropriate time.
Right now it’s premature.” Prior to recessing, the court concluded,
“I would suggest maybe perhaps mid-afternoon, if they’re still
deliberating, I’ll inquire of the jurors.”
At 2:20 p.m., the jurors submitted a second question, asking,
“If we move to the lesser count of attempted manslaughter[,] are
[CALCRIM Nos.] 603 and 604, to be ruled together as part of the
same count?” The court met with counsel to discuss the jury’s
query, noting the jury appeared to be asking about CALCRIM
Nos. 603 and 604 which address different theories under which a
defendant could be convicted of attempted voluntary manslaughter.
The court noted it was inclined to instruct the jury that each of
these instructions states two distinct theories of liability. Defense
counsel Fletcher stated the problem with that instruction is that it
could lead to conviction, and the jury should therefore be directed to
also consider the defenses, such as self-defense. The court stated it
had an obligation to answer the question “in the most informative
and neutral way” possible.
When Fletcher stated that sometimes there are questions “the
court simply can’t answer,” the court asked if he would like the
court to bring out the jury and make further inquiries of the
foreperson regarding their query. Fletcher responded, “No. I don’t
want to put pressure on the jury,” and stated the simplest way to
respond is to tell the jury that these are two viable theories of
35
conviction and then also instruct them that there are “viable
theories of acquittal or defense.” The court responded that the jury
had not inquired about defenses, but to avoid answering the
question “in a vacuum” the court would add that the jury should
“consider all of the instructions in arriving at [their] verdict.”
Fletcher objected, stating this would constitute instructional
error and moved for mistrial. The court denied the motion, and
stated it would write out the answer and deliver it to the jury as
stated. Fletcher raised no issue regarding the jury’s time pressure,
nor did he renew his request to inquire of the jury as to any
potential time pressure. The court delivered a written response to
the jury’s question as follows: “[CALCRIM i]nstructions [Nos.] 603
and 604 state two separate and distinct theories of liability for
attempted voluntary manslaughter. Consider all of the instructions
in arriving at your verdict.”
At 4:15 p.m., the jury announced it had reached its verdicts.
The jury acquitted Dorton of attempted murder, but unanimously
found him guilty of attempted voluntary manslaughter of Mendoza.
The clerk read the verdicts in open court. At the request of defense
counsel, the trial court individually polled the jury and each
individual juror confirmed that this was their verdict.
B. Relevant Legal Principles
“A criminal defendant has the right under the state and
federal Constitutions to be personally present and represented by
counsel at all critical stages of the trial.” (People v. Bryant, Smith
and Wheeler (2014) 60 Cal.4th 335, 465.) Generally, “ ‘[a] trial court
should not entertain, let alone initiate, communications with
individual jurors except in open court, with prior notification to
counsel.’ ” (People v. Clark (2011) 52 Cal.4th 856, 987). However,
“ ‘[n]ot every communication between the judge and jury constitutes
36
a critical stage of the trial.’ [Citation.]” (Ibid.)24 “Specifically, a
trial court properly may engage in ex parte communications for
‘ “scheduling, administrative purposes, or emergencies that do not
deal with substantive matters . . . .” ’ [Citations.]” (Ibid.) As our
high court has observed, “ ‘ “[t]here is scarcely a lengthy trial in
which one or more jurors do not have occasion to speak to the trial
judge about something, whether it relates to a matter of personal
comfort or to some aspect of the trial. The . . . conclusion that an
unrecorded ex parte communication between trial judge and juror
can never be harmless error ignores these day-to-day realities of
courtroom life and undermines society’s interest in the
administration of criminal justice.” ’ [Citation.]” (People v. Delgado
(1993) 5 Cal.4th 312, 330, italics omitted.)
C. The Record Does Not Demonstrate that Ex Parte
Communications Between Jurors and the Trial Court
Occurred
First, in light of the record summarized above, it is not clear
that the trial court engaged in any ex parte communications with
either the alternate or seated juror, and the record suggests
24 The rule regarding court communications with deliberating
jurors is codified in Penal Code section 1138, which states in
pertinent part: “After the jury have retired for deliberation, if there
be any disagreement between them as to the testimony, or if they
desire to be informed on any point of law arising in the case, they
must require the officer to conduct them into court” and “the
information required must be given in the presence of, or after
notice to, the prosecuting attorney, and the defendant or his
counsel, or after they have been called.” (Italics added; see also
People v. Bradford (2007) 154 Cal.App.4th 1390, 1412 [quoting the
statute and noting Pen. Code, § 1138 codifies the rule prohibiting ex
parte communications between the trial judge and the deliberating
jury].)
37
otherwise. Defense counsel stated he heard that a juror had
communicated scheduling concerns, and counsel was trying to
ascertain if this was true—and “if any response was given.” (Italics
added.) The trial judge acknowledged two jurors had contacted
court staff but stated he himself had not made any inquiries of
them. The trial judge also indicated that he was not even aware if
the alternate juror was in the courthouse that day. The only
statement that led defense counsel to believe the judge had
personally spoken with the jurors was when the judge made the
following observation: “I will note that I told them that the case
would be concluded by today.” Given that the record reflects that
the trial judge told prospective jurors the trial would likely take two
to three weeks “and it will be concluded no later than February 3rd”
(italics added), and that the day of the conversation with counsel
took place on February 3rd—it is likely that this isolated comment
was in reference to the court’s previous trial estimate.
To the extent defense counsel was concerned about a
purported ex parte communication, counsel did not pursue the issue
after expressing his initial concerns. In his reply brief, Dorton
argues “[t]he fact that the court denied even a request to question
the juror shows that any further objection or request for mistrial
would have been futile.” This misstates the record. The court
expressly told counsel, “[w]hy don’t we just wait,” and that “[w]hen
it gets to the afternoon, I think I’d be inclined to inquire at some
point,” demonstrating the court was receptive to the idea of
speaking to the jury regarding the issue of time constraints. Later
that afternoon, at 2:20 p.m., the jury sent a question to the court,
which would have provided an opportunity for defense counsel to
reassert his request. Counsel again raised no issue regarding any
purported comments the trial court may have made to jurors that
morning. The fact that defense counsel did not further pursue the
38
issue after the initial conversation—despite a clear opportunity to
do so—raises further doubt that any ex parte communication even
took place. In any event, we will not presume error on an
ambiguous record. (Evid. Code, § 664 [“It is presumed that official
duty has been regularly performed”]; People v. Sullivan (2007) 151
Cal.App.4th 524, 549 [stating it is the defendant’s “burden to
provide a record on appeal which affirmatively shows that there
was an error below, and any uncertainty in the record must be
resolved against the defendant”]; see also Denham v. Superior Court
(1970) 2 Cal.3d 557, 564 [“ ‘A judgment or order of the lower court is
presumed correct. All intendments and presumptions are indulged
to support it on matters as to which the record is silent, and error
must be affirmatively shown’ ”].)
IV
Defense Pinpoint Instructions
Dorton contends the trial court erred, and violated his
constitutional rights, when it refused to instruct the jury with two
special instructions regarding the circumstances under which a
person may lawfully carry a loaded firearm. We disagree. The
instructions proffered by Dorton were argumentative and
potentially confusing to the jury, while any relevant legal principles
underpinning those instructions were adequately and correctly
conveyed through the given CALCRIM instructions.
A. Relevant Facts and Proceedings
At the conclusion of the presentation of trial evidence, defense
counsel submitted five pinpoint instructions, including the following
two instructions at issue in this appeal:
Proposed Special Jury Instruction No. 1 stated: “A person
may carry any loaded firearm, under circumstances where it would
otherwise be lawful, by a person who reasonably believes that any
39
person or the property of any person is in immediate, grave danger
and that the carrying of the weapon is necessary for the
preservation of that person or property. [¶] Immediate means the
brief interval before and after the local law enforcement agency,
when reasonably possible, has been notified of the danger and
before the arrival of its assistance.”
Proposed Special Jury Instruction No. 2 stated: “The use of
the word ‘carry’ means going about armed, as well as the further
proposition of transporting the weapon with intent to use it as
such.”
The court denied Dorton’s request for these special
instructions because they either did not “accurately state the law”
or were “not germane to this case.”
Following Dorton’s motion for new trial, in which he argued
the trial court erred by denying his pinpoint instructions, the court
determined the instructions were properly rejected, finding them
“argumentative, unsupported, or duplicative.”
B. Relevant Legal Principles
A trial court must instruct the jury on general principles of
law necessary for the jury’s understanding of the case. (People v.
Hovarter (2008) 44 Cal.4th 983, 1021.) “In addition, ‘a defendant
has a right to an instruction that pinpoints the theory of the
defense . . . .’ ” (People v. Roldan, supra, 35 Cal.4th at p. 715.) The
court may, however, “properly refuse an instruction offered by the
defendant if it incorrectly states the law, is argumentative,
duplicative, or potentially confusing.” (People v. Moon (2005) 37
Cal.4th 1, 30.)
C. The Trial Court Properly Refused Dorton’s Proposed
Pinpoint Instructions
First, Special Instruction No. 1 contained language that was
improperly argumentative. An instruction that “invite[s] the jury to
40
draw inferences favorable to [the defendant] from selected items of
evidence” is properly refused as argumentative. (People v. Kraft
(2000) 23 Cal.4th 978, 1063.) In describing the “immediate” danger
that might justify the carrying of a loaded firearm, Special
Instruction No. 1 sought to define “immediate” as “the brief interval
before and after the local law enforcement agency . . . has been
notified of the danger and before the arrival of its assistance.”
(Italics added.) Given that Officer Martinez and his partner left the
scene at 2:17 p.m., minutes prior to the shooting, and returned a
short time later after the shooting, Dorton’s instruction sought to
extract specific facts from the events in this case and then use these
facts to suggest that the presence of NBG at the scene constituted
an “immediate danger” that he, Dorton, was left to handle on his
own. This language in the proposed instruction is clearly
argumentative and, as Dorton acknowledges in his reply brief, not
sanctioned by any legal authority. (People v. Wright (1988) 45
Cal.3d 1126, 1135 [disapproving “ ‘of the common practice [of]
select[ing] certain material facts, or those which are deemed to be
material, and endeavoring to force the court to indicate an opinion
favorable to the defendant as to the effect of such facts, by
incorporating them into instructions containing a correct principle
of law”].)
Second, Special Instruction No. 2 was potentially confusing to
the jury. Instruction No. 2 defined “carry” as going about “armed,
as well as the further proposition of transporting the weapon with
intent to use it as such.” (Italics added.) The latter phrase is
ambiguous and undefined.25 (People v. Hendricks (1988) 44 Cal.3d
25 Dorton cites a 1923 case, In re Bergen (1923) 61 Cal.App.
226, 228, as the source of the definition. Bergen, which involved a
charge of carrying a concealed weapon, in turn, cited State v. Larkin
41
635, 643 [noting that in refusing a proposed instruction the court
“correctly followed the long settled rule that an instruction that
may confuse the jury should not be given”].)26
Third, Dorton’s special instructions focused the jury on a fact
that was not at issue. That is, Dorton’s special instructions told the
jury that a person may “carry” any loaded firearm if he or she
“reasonably believes that any person or the property of any person
is in immediate, grave danger.” However, Dorton did not merely
“carry” (i.e., transport) his weapon onto the property; he drew it,
pointed it, and “racked” it. The question of whether Dorton’s
actions were reasonable under the circumstances was best
answered under the CALCRIM self-defense/defense of property
instructions that allowed both sides to argue all of the relevant
circumstances. (See People v. Mora and Rangel (2018) 5 Cal.5th
442, 499 [no error where the “content of the [proffered] instruction
was adequately conveyed to the jury” through the given
instructions]; People v. Ledesma (2006) 39 Cal.4th 641, 720 [no
(1887) 24 Mo.App. 410, wherein the court explained that the phrase
“for the purpose of using it as such” implicated the factual question
of whether the defendant “carried the article as a weapon . . . for the
purpose of using it as such if occasion should require”—as opposed
to “a mere article of merchandise.” (Id. at p. 412.) In Larkin, the
defendant claimed he was merely carrying the weapon home after
he purchased it. (Id. at p. 411.)
26 Although the trial court did not expressly reject the
instruction on grounds it might confuse the jury, we may affirm the
trial court’s ruling on any correct basis. (Cf. People v. Hopson
(2017) 3 Cal.5th 424, 459 [stating a trial court ruling will be upheld
if it is correct under any theory of law applicable to the case]; People
v. Zamudio (2008) 43 Cal.4th 327, 351, fn. 11 [“ ‘we review the
ruling, not the court’s reasoning and, if the ruling was correct on
any ground, we affirm’ ”].)
42
error in refusing proposed pinpoint instructions where the same
underlying principle “was fully explained to the jury in other
instructions”].)
CALCRIM Nos. 3475 and 3476 provided a basis for defense
counsel to point out that Dorton was “not charged with anything
that would suggest this gun is anything more than lawful,” and to
argue that Dorton did not have to keep his gun in his pocket, but
had the right to use it to protect himself and his home. This
included pointing the gun he lawfully possessed, and asking the
men to leave his property. (People v. Hughes (2002) 27 Cal.4th 287,
363 [finding no reversible error where defense counsel was able to
“emphasize[ ] and ‘pinpoint[ ]’ ” the defense theory under the given
instructions]; People v. Wright, supra, 45 Cal.3d at p. 1134 [the
defendant’s proposed pinpoint instructions properly were rejected
where the same point was “plainly implied” by a statement in the
given instructions].) Conversely, the prosecutor argued that
Dorton’s act of running onto the property and pointing and racking
his gun at the crew, was “a violent overreaction” and unreasonable
under the circumstances—which was consistent with the assault
charges filed against Dorton.
Given that defense counsel was able to, and did argue, that
the manner in which Dorton used his weapon was lawful and
justified under the evolving circumstances of the confrontation, no
error flowed from the court’s decision to decline Dorton’s
instructional request. (People v. Mora and Rangel, supra, 5 Cal.5th
at p. 499; People v. Ledesma, supra, 39 Cal.4th at p. 720.)
V
Prosecutorial Error During Closing Argument
Dorton contends the prosecutor misstated the law during
closing argument, thereby allowing Dorton to be convicted on an
illegal or invalid legal theory.
43
Dorton first points to a series of closing statements in which
the prosecutor “emphasized” the evidence regarding NBG’s
ownership of the property.27 Defense counsel, however, failed to
object to any of these statements during trial. “ ‘As a general rule a
defendant may not complain on appeal of prosecutorial misconduct
unless in a timely fashion—and on the same ground—the defendant
made an assignment of misconduct and requested that the jury be
admonished to disregard the impropriety.’ ” (People v. Valencia
(2008) 43 Cal.4th 268, 281.) “ ‘The lack of a timely objection and
request for admonition will be excused only if either would have
been futile or if an admonition would not have cured the harm.’
[Citation.]” (People v. Hoyt (2020) 8 Cal.5th 892, 942-943.) Dorton
does not argue any of the latter exceptions apply and has therefore
forfeited any assertion of error regarding these statements. (See id.
at p. 943.) Moreover, and as discussed earlier, evidence of NBG’s
ownership was relevant on several fronts—including the question of
whether Dorton’s response was reasonable under the
circumstances. (See Discussion I, subsection C, ante.)
Dorton next points to a statement that did garner an objection
from defense counsel—and a curative admonition by the trial court.
Toward the end of his initial closing statement, in discussing
defense of property, the prosecutor put up a slide and argued that,
27Dorton points to the following series of statements
regarding NBG’s ownership, made by the prosecutor at various
points during closing arguments: (1) “They own that house.” “NBG
owns that property.” “NBG [P]roperties owns that house.” (2) The
prosecutor told the jury that a deed is important and “expresse[d]
ownership of property.” (3) “The $452,000, that was paid by the
new owners[,] NBG Properties. A deed is a deed. 100 percent. No
doubt. It’s their house. It’s easily provable.”
44
“You can’t use force against . . . an owner of the property or its
agent.” Defense counsel objected.
At sidebar, the court stated it was not clear whether an owner
could never be deemed a trespasser within the meaning of
CALCRIM No. 3475. The court noted the instruction does not
define trespasser and it appeared to be a question for the jury to
decide under the common definition of that term. As such, the court
reiterated that both sides could argue their position. However, the
court found the prosecutor’s slide might not accurately state the law
and told the parties it would instruct the jury to disregard it. The
court subsequently instructed the jury to “disregard what was in
the last slide.” To the extent Dorton now believes the trial court’s
admonition was insufficient, he has forfeited the issue because trial
counsel did not assert a further objection. (People v. Hoyt, supra, 8
Cal.5th at p. 944 [failure to assert a further objection after the trial
court’s clarification to the jury, forfeited appellate review of the
claim of prosecutorial error]; see also generally People v. Potts
(2019) 6 Cal.5th 1012, 1035 [declining to find an exception to the
ordinary forfeiture rules for assertions of prosecutorial error
directed at alleged misstatements of law].)28
28 To the extent that Dorton has premised his appellate
argument on the contents of the slide (as opposed to the
prosecutor’s own statements), we further note that Dorton failed to
make a record of the slide, or any of its contents, in the trial court.
Therefore, the issue has not been preserved for appellate review.
(People v. Brown (2003) 31 Cal.4th 518, 553 [explaining that “[t]o
preserve a claim of prosecutorial misconduct for appeal, a criminal
defendant must make a timely objection, make known the basis of
his objection, and ask the trial court to admonish the jury”], italics
added; cf. Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 102
[“Appellate review is generally limited to matters contained in the
45
In light of this record, Dorton has failed to present any
cognizable claims of prosecutorial error for appellate review. (See
People v. Hoyt, supra, 8 Cal.5th at pp. 943-944.)
VI
Cumulative Error
Dorton contends the cumulative effect of the alleged errors
described above denied him due process and compels reversal. In
light of the foregoing discussion, there are not multiple trial errors
to accumulate. (People v. Capers (2019) 7 Cal.5th 989, 1017-1018.)
VII
Dorton’s New Trial Motion
Dorton contends the trial court erred in denying his motion
for new trial, arguing that his trial attorneys, Michael Fletcher and
Jaaye Person-Lynn, were ineffective because they failed to
interview or call certain potential defense witnesses. They also
failed to present his medical records to show the extent of the
injuries he received during the incident. Dorton acknowledges that
he himself “did all the pretrial investigation” and that “Fletcher
received everything” and “knew the names of the potential defense
witnesses and the anticipated testimony of each.” Dorton further
notes that “Fletcher received all of the reports, the videos and the
still photographs.” Similarly, cocounsel Person-Lynn “knew the
names of the witnesses and the testimony each was expected to give
at trial. . . . He also had knowledge of the jail medical records and
the surveillance videos.”
record. Factual matters that are not part of the appellate record
will not be considered on appeal and such matters should not be
referred to in the briefs”]; Cal. Rules of Court, rules 8.204(a)(2)(C),
8.360(a).)
46
Notwithstanding this knowledge, Dorton asserts defense
counsel provided ineffective assistance of counsel because they
themselves failed to speak to these prospective witnesses and/or
failed to present their testimony at trial, and failed to introduce the
medical records. As discussed below, we discern no basis upon
which to overturn the trial court's decision.
A. Background Facts
1. Pre-trial Proceedings
Prior to his arraignment, Dorton, a licensed attorney with
criminal defense experience, was granted the right to represent
himself. Nearly two years later, on January 12, 2017, Dorton told
the court he was ready for trial, and refused to waive time. When
asked how many defense witnesses he anticipated calling, Dorton
responded, “Right now we don’t know if we’ll have any witnesses.”
The next day, on January 13, 2017, private defense attorney
Fletcher substituted in as trial counsel, with Person-Lynn as
cocounsel. Fletcher announced he was ready for trial. The court
pointed out the defense had indicated it may have as many as 10
witnesses. Fletcher, in response, stated the witnesses he intended
to call would relate to the issue of self-help evictions, and that he
might also call a real estate expert to explain the law in this area.29
Fletcher subsequently explained to the court he would be relying on
a combination defense, arguing that Dorton initially acted in
29 As noted in our factual summary, Fletcher called a
neighbor who testified that Dorton and his wife resided at the
property and a police officer who testified he advised Brown not to
change the locks and instead proceed through the court system. He
did not call a real estate expert. (See Fact and Proceedings Below,
subsection B [Defense Evidence], ante.)
47
defense of his property, and then was pulled into a self-defense
scenario.
2. Post-trial Proceedings, Including Motion for New Trial
On February 6, 2017, following the jury verdicts, Dorton
reinstituted his pro per status. Sentencing was repeatedly
postponed as a result of numerous post-trial motions filed by Dorton
over the next few months, none of which are before us on appeal.
On October 11, 2017, Dorton filed a 101-page motion for new trial,
raising several constitutional issues, including inadequate
representation by trial counsel.
Dorton’s new trial motion came on for hearing on October 26,
2017. Dorton indicated he had subpoenaed seven or eight witnesses
to testify in support of his motion. The trial court heard testimony
from some witnesses on this day, and heard further testimony on
subsequent hearing dates. On February 2, 2018, the trial court
issued a 31-page memorandum of decision denying the motion for
new trial.
a. Potential witnesses identified in new trial
motion30
(i) Fred Dorton
Dorton executed a declaration stating that he would have
testified he lived at the house with his wife and children for over 14
30 Our summary focuses on the witnesses identified and
discussed in Dorton’s opening brief. (People v. Stanley (1995) 10
Cal.4th 764, 793.) To the extent Dorton references ballistics expert
Patricia Fant in his reply brief, Dorton provided neither a
declaration from Fant, nor presented her as a witness at the
hearing on the motion for new trial. Therefore, we do not address
the failure to call this witness. (See People v. Watts (2018) 22
Cal.App.5th 102, 118 [a new trial motion’s assertion of inadequate
48
years. On January 14, 2015, “several men armed with loaded guns”
came to his house, broke the front door locks, forcibly opened the
door, and entered the house. Dorton called 911 to report a burglary.
When the men returned, Dorton’s wife called 911 to report a
burglary. Dorton then “attempted to arrest the men while they
were actively committing felonies” at his house. During this
attempted arrest, Mendoza attacked Dorton, striking Dorton twice
on the head with a hammer. Dorton did not shoot Mendoza; the
gun accidentally discharged.
Dorton did not testify at the hearing on his new trial motion.
(ii) Kimberly Smith-Dorton
Dorton’s wife, Kimberly Smith-Dorton, executed a declaration
stating she and Dorton purchased the home where the shooting
occurred and that she never agreed to allow anyone to change any
locks. She also observed Dorton’s head injuries. She was never
contacted by Dorton’s attorneys to testify at trial. She stated she
was not a tenant at the property, and denied ever stating she was a
tenant. She further declared that Officer Martinez was not being
truthful in testifying that she told him to give Brown her telephone
number, or that she told the officer she would meet Brown at the
house.
Smith-Dorton did not testify at the hearing on Dorton’s
motion for new trial.
(iii) Real Estate Expert Jack Fierstadt
Jack Fierstadt submitted a declaration stating he was an
attorney with expertise in unlawful entry, possession and
foreclosure issues. Fierstadt attempted to contact Fletcher during
the week of January 10, 2017, to discuss his potential trial
representation due to the failure to call a witness must be
supported by an affidavit or live testimony of the witness].)
49
testimony, but never received a return telephone call. Fierstadt
stated he previously had been “made aware” by Dorton of the issues
involved in the case, including “issues concerning the legality of
changing the door locks and entering Mr. Dorton’s home without a
court order or valid writ of possession.” Fierstadt declared that his
testimony “would have refuted [his] understanding of the
prosecution’s theory that a deed or 24-hour notice allows locks to be
changed without the consent of the person in possession.”
Fierstadt did not testify at the hearing on Dorton’s new trial
motion.
(iv) Kim Goodman
Kim Goodman testified at the new trial hearing as follows:
Goodman’s husband, Agee, owned a .38 caliber revolver. Brackens,
one of the NBG crew, was Agee’s handyman. Agee owned a
property on 108th Street, and kept a handgun there. At one point,
Brackens went to the property to help the family move. Thereafter,
Goodman noticed the gun was missing. Goodman reported the
missing gun to the Corona Police Department in 2013.
(v) Thomas Guzman-Sanchez
Thomas Guzman-Sanchez testified at the new trial hearing as
follows: Guzman-Sanchez was an audio and video forensics expert
and was appointed prior to trial to assist the defense. He was
expected to testify at Dorton’s trial but never was contacted by
either Fletcher or cocounsel Lynn-Person. Guzman-Sanchez
analyzed videos of the incident and used them to create two DVDs.
He created the first DVD for trial, and the second for the new trial
motion. To create the DVDs, he viewed the original home
surveillance videos at slower speeds, broke down the individual
frames captured on the videos, and used the images to prepare a
video to be used at trial to impeach the prosecution’s witnesses.
50
Dorton played the DVD created by Guzman-Sanchez as he
questioned Guzman-Sanchez about its contents. Guzman-Sanchez
described his analysis of the events depicted on the DVD as follows.
The video depicted a person with a “very defined bulge” in the back
of his shirt. Guzman-Sanchez testified there was a clearer image
that, according to Guzman-Sanchez, depicted Brown with a
concealed weapon. At some point, Brown gave a head nod, and
Tobar and Mendoza grabbed tools. Tobar used “a very large
hammer with some type of a prying device” and was “banging it into
the doorknob,” while Mendoza stood behind him. According to
Guzman-Sanchez, Brackens, Tobar, and Mendoza appeared to be
breaking into the house.
Brackens walked to a truck across the street and accessed a
tool box before walking toward Tobar. At some point, Brackens
appeared to have a gun in his hand. Guzman-Sanchez pointed to
the video showing that Brown went to a Mini-cooper, and Brackens
ran to his truck.
When Dorton approached, Tobar ran. Dorton had a gun in his
hand. Dorton never pointed the gun at Tobar. The handgun was
knocked out of Dorton’s hand. Mendoza grabbed a hammer. The
video depicted someone with a gun in his hand running and placing
it into a backpack. Dorton appeared to pick up a phone or an object
inconsistent with a bullet casing.
Guzman-Sanchez also attempted to recreate what occurred
during the four seconds when Mendoza and Dorton were out of
camera range. Guzman-Sanchez based his recreation on the
testimony at the grand jury hearing, as well as Mendoza’s police
interview. Based on the positioning of the feet that could be seen in
the video, Guzman-Sanchez was able to determine the “rough
positioning of [the] bodies” and concluded that Mendoza’s body was
on top of Dorton’s body during this time period.
51
Guzman-Sanchez also received two files from an iPhone. A
neighbor using an iPhone camera captured the audio of a second
gunshot occurring after Mendoza was shot. The sound could have
emanated from Brackens’ or Mendoza’s location. The gunshot
occurred at a time when the video showed Brackens was off to the
side with his arm extended.
Guzman-Sanchez went with ballistics expert Patricia Fant to
the Riverside sheriff's firing range. Together they tried to recreate
the sound of the second gunshot captured on the audio recording.
Fant shot two .38 caliber firearms, a .45 caliber firearm, and a .357
caliber firearm, while Guzman-Sanchez recorded the sound from
185 feet away. The gunshot fired by Fant with the .38 caliber
weapon came closest to the sound heard on the iPhone recording.
Based on this analysis, Guzman-Sanchez opined that the gunshot
sound could have come from Brackens’ location, inferring that
Brackens fired the shot from his .38 revolver.
b. Testimony of trial attorneys
(i) Matthew Fletcher
Fletcher testified at the hearing on the motion for new trial.
He confirmed he was Dorton’s lead attorney during trial. He had
been an attorney for 20 years and had handled “hundreds and
hundreds” of cases. He became familiar with Dorton’s case
approximately a week or two prior to trial. When he announced he
was ready for trial, he was prepared to try the case. Fletcher
received the surveillance video footage and other information
related to the case from Dorton. He had all the information he
needed to do his job. Fletcher did not believe the case was
complicated, he had a strategic plan, and he believed he executed
the plan effectively.
Fletcher was aware that Fierstadt, Smith-Dorton, Guzman-
Sanchez, and others, were possible defense witnesses. However,
52
Fletcher did not interview or call them to testify. The prosecutor
had listed Smith-Dorton as a witness. Fletcher, however, believed
the spousal privilege applied to her testimony.
As for Guzman-Sanchez, Fletcher believed the “video forensic
stuff” was “made up science.” However, Fletcher did recall speaking
with Guzman-Sanchez about the Dorton case at some point.
Fletcher acknowledged he subsequently called Guzman-Sanchez as
a witness in another case. The latter case involved a nighttime
shooting and Fletcher believed that Guzman-Sanchez’s expertise
would be helpful in the context of that case. Because Dorton’s case
occurred during the day, the use of Guzman-Sanchez “would have
never have crossed [his] mind.”
Fletcher acknowledged he did not prepare Dorton to testify
and did not call Dorton as a witness. Fletcher was present when
the trial court advised Dorton of his right to testify. Fletcher could
not recall what Dorton said after being advised of his rights, but did
not recall Dorton indicating he wanted to testify. Moreover,
because Dorton was an attorney, Fletcher knew that Dorton was
aware of his right to testify.
Fletcher also testified that it was Person-Lynn’s job to
interview and call witnesses for the defense. Fletcher therefore did
not make any strategic decisions regarding who was called or not
called as a witness. Fletcher’s responsibility was to handle
witnesses called by the prosecution. Fletcher knew Dorton’s
medical records were available but did not submit them at trial
because that was Person-Lynn’s responsibility.
(ii) Jaaye Person-Lynn
Person-Lynn also testified at the hearing on the motion for
new trial. He was the second chair during Dorton’s trial. He did
not do any investigation prior to being retained. Dorton appeared
to have control of the defense evidence prior to trial.
53
Person-Lynn was aware of Fierstadt, Guzman-Sanchez, and
Smith-Dorton, among others, and was aware of what their potential
testimony would entail. Neither Fletcher nor Person-Lynn
interviewed those witnesses, nor called those witnesses to testify.
Person-Lynn was surprised that certain witnesses were not called
and was not aware of any tactical decision made regarding those
witnesses.
Person-Lynn knew that Dorton wanted to testify and believed
that Dorton would be called as a defense witness because that had
been discussed. He was aware of what Dorton would say on the
stand. However, Person-Lynn did not prepare Dorton to testify
because he believed Fletcher would do so.
Person-Lynn had observed Fletcher with Dorton’s medical
records, which showed that Dorton had a head injury. Fletcher did
not present those records at trial. Person-Lynn was not aware of a
tactical decision to not submit those records.31
31 In his opening brief, Dorton also identifies potential
witness “Kimberly Shaw,” but relies solely on Person-Lynn’s
testimony regarding Shaw’s purported testimony. The record
indicates that Dorton withdrew a declaration by Shaw. This,
combined with Shaw’s failure to testify at the hearing on the motion
for new trial, leaves us with only inadmissible hearsay on the
matter. (See People v. McCurdy (2014) 59 Cal.4th 1063, 1109
[motion for new trial based on hearsay properly was denied as it did
not constitute admissible evidence that probably would have
resulted in a different verdict]; People v. Watts, supra, 22
Cal.App.5th at p. 118 [new trial motion’s assertion of inadequate
representation due to the failure to call a witness must be
supported by an affidavit or live testimony of the witness].)
In any event, through his examination of Person-Lynn,
Dorton elicited that Shaw would have testified she had lunch with
Dorton on January 14, 2015, and was with Dorton when he received
54
3. Trial Court Ruling
The trial court denied Dorton’s new trial motion, finding that
Dorton neither established that trial counsels’ performance was
deficient, nor that he was prejudiced by any purported deficiency in
trial counsels’ performance. The specific findings and conclusions of
the trial court are further discussed below.
B. Relevant Legal Principles
“ ‘ “ ‘ “We review a trial court’s ruling on a motion for a new
trial under a deferential abuse-of-discretion standard.” [Citations.]
“ ‘A trial court’s ruling on a motion for new trial is so completely
within that court’s discretion that a reviewing court will not disturb
the ruling absent a manifest and unmistakable abuse of that
discretion.’ ” ’ ’’ ’ [Citation.]” (People v. Hoyt, supra, 8 Cal.5th at
p. 957; People v. McCurdy, supra, 59 Cal.4th at p. 1108.) “ ‘[I]n
determining whether there has been a proper exercise of discretion
on such motion, each case must be judged from its own factual
background. [Citation.]’ [Citation.]” (People v. Dyer (1988) 45
Cal.3d 26, 52.)
“Although ineffective assistance of counsel is not among the
grounds enumerated for ordering a new trial under Penal Code
the telephone call at 1:17 p.m. from NBG attorney Richards. Shaw
did not hear Dorton tell Richards he would use deadly force while
Dorton was in her presence. In denying Dorton’s new trial motion,
the trial court reasonably concluded that this purported testimony
was not likely to have changed the outcome in the case. Shaw’s
testimony would not have implicated Balfany’s testimony regarding
Dorton’s initial threat to Balfany. Nor would it necessarily have
undermined Richards’ testimony that when he told Dorton over the
telephone that Dorton could not use deadly force, Dorton disagreed
with him. Moreover, the threats were relevant to the premeditated
attempted murder charged in count 1; the jury found Dorton not
guilty of attempted murder.
55
section 1181, motions alleging ineffective assistance are permitted
pursuant to ‘the constitutional duty of trial courts to ensure that
defendants be accorded due process of law.’ ” (People v. Callahan
(2004) 124 Cal.App.4th 198, 209, quoting People v. Fosselman
(1983) 33 Cal.3d 572, 582.) The defendant has the burden of
showing both the ineffectiveness of counsel and the prejudice it
caused. (People v. Dennis (1986) 177 Cal.App.3d 863, 872.)
C. We Discern No Error in the Trial Court’s Denial of
Dorton’s New Trial Motion
At the outset of its discussion, the trial court pointed out that
Dorton “was an experienced attorney who proceeded in propria
persona and conducted all of the pretrial investigation,” and then on
both January 5, and January 12, 2017, “announced [he was] ready
for trial and refused to waive time.” The following day, Fletcher
became attorney of record and both sides announced ready for trial.
The court found that during trial, Fletcher “rigorously and
painstakingly cross-examined all of the prosecution’s witnesses.”
To the extent both Fletcher and Person-Lynn testified there
was no discussion regarding whether to call the defense witnesses
identified by Dorton, the trial court found the following: “[T]he
court does not find credible the testimony of either trial counsel that
there was no discussion regarding the decision not to call the
defense witnesses. Person-Lynn testified that [Fletcher], [Dorton],
and himself, conversed about the witnesses and their potential
testimony. [Dorton] has been actively involved in the defense of
this case since the beginning, including during the 24 days that
Fletcher and Person-Lynn represented him. The court does not find
it credible that the two defense attorneys and [Dorton], himself an
attorney, did not discuss defense strategy amongst themselves,
including whether or not to call defense witnesses.”
56
To the extent the trial court’s credibility assessment was
based on the court’s own observations of Fletcher and Person-Lynn
during their hearing testimony, it is entitled to great deference.
(See generally People v. Barnwell (2007) 41 Cal.4th 1038, 1053 [“we
afford deference to the trial court’s factual determinations, based,
as they are, on firsthand observations unavailable to us on appeal”];
People v. Avila (2006) 38 Cal.4th 491, 529 [noting that the tone of
voice, apparent level of confidence, and demeanor of a witness
divulges valuable information that does not appear on the record].)
To the extent the trial court’s finding was based on the court’s
observations of the conduct of counsel and Dorton throughout the
pretrial and trial proceedings, it is equally entitled to deference.
(See People v. Fosselman, supra, 33 Cal.3d at p. 582 [“It is
undeniable that trial judges are particularly well suited to observe
courtroom performance and to rule on the adequacy of counsel in
criminal cases tried before them”].)
In addition, the trial record supports, rather than contradicts,
the court’s findings and conclusions. On the day Dorton presented
Fletcher as his attorney, Dorton told the trial court he intended to
act as “cocounsel” by consulting with Fletcher outside of the
presence of the jury. Dorton points out that the trial court made it
clear he must either represent himself or be represented by
counsel—and thereafter reminded Dorton he must not speak in
court. Nothing in the court’s ruling prohibited Dorton from doing
exactly as he stated he intended: to engage with counsel “not
necessarily in front of the jury” but during “discussions outside of
the presence of the jury that [he] may need to be [a] part of.”
Moreover, Dorton fully acknowledges in his opening brief, that both
Fletcher and Person-Lynn (as confirmed in their respective
testimony) “knew the names of the potential defense witnesses and
the anticipated testimony of each.” (Italics added.) Nevertheless,
57
Dorton argues that the failure of Fletcher and Person-Lynn to
personally interview each witness necessarily establishes that both
attorneys failed to “evaluat[e] the potential impact of [witness]
testimony on [Dorton’s] defense.” Further, they failed to “consider[ ]
all the potential evidence amassed by [Dorton].” In so arguing,
however, Dorton falls prey to the fallacy of false equivalence.
The Sixth Amendment requires that trial counsel either
conduct “reasonable investigations or . . . make a reasonable
decision that makes particular investigations unnecessary.”
(Strickland v. Washington, supra, 466 U.S. at p. 691, italics added.)
Here, as the trial court pointed out, Dorton “was an experienced
attorney” who “conducted all of the pretrial investigation,” and
thereafter announced he was ready for trial. This, in conjunction
with Dorton’s admission that both of his attorneys were fully
briefed on the proposed testimony of each potential defense witness,
undermined Dorton’s assertion that counsel acted unreasonably by
failing to personally interview these witnesses. As explained by the
United States Supreme Court in Strickland, “The reasonableness of
counsel’s actions may be determined or substantially influenced by
the defendant’s own statements or actions. Counsel’s actions are
usually based, quite properly, on informed strategic choices made
by the defendant and on information supplied by the defendant. . . .
For example, when the facts that support a certain potential line of
defense are generally known to counsel because of what the
defendant has said, the need for further investigation may be
considerably diminished or eliminated altogether.” (Id. at p. 691.)
The Strickland court’s observations are even more apt in a
case, such as this, where the defendant is an experienced criminal
defense attorney who himself conducted the pretrial investigation
and provided that information to the attorneys retained to
represent him.
58
In his opening brief, Dorton criticizes the trial court for citing
People v. Bloom (1989) 48 Cal.3d 1194, 1226-1227, in its decision.
He points out that in Bloom, the defendant complained of
ineffectiveness of counsel during a time when the defendant was
representing himself—i.e., during the penalty phase of his trial.
Dorton asserts that he, “unlike Bloom, did not represent himself at
trial.” This is true. However, the omissions Dorton identifies to
claim ineffective assistance of counsel relate to actions that Dorton
himself undertook before trial—investigating and interviewing
potential defense witnesses.32 As such, it was wholly appropriate
for the court to cite Bloom, as it did, for the following proposition:
That “a self-represented defendant may not claim ineffective
assistance [of counsel] on account of counsel’s omission to perform
an act within the scope of duties the defendant voluntarily
undertook to perform personally at trial.” (Ibid.) This, combined
with the trial court’s finding that counsel did not testify credibly in
claiming there was no discussion regarding these witnesses, well
supports the trial court’s ultimate determination that, under the
circumstances of the case, trial counsel’s strategy to not interview
the defense witnesses was not unreasonable.
We further agree with the trial court’s finding that “there
would be many tactical reasons for not calling each of the
witnesses” identified by Dorton, and that Dorton “fail[ed] to show
how the potential testimony, if presented, would have likely
changed the outcome of the case.”
32 The fact that Dorton, after announcing ready on the day
prior to trial, expressly told the court that he did not know if he
would call any witnesses to the stand, also is consistent with the
trial court’s conclusions.
59
First, with regard to trial counsel’s failure to call Dorton to
the stand, the trial court noted that Dorton “elected not to testify
during the hearing on the [new trial m]otion, instead choosing to
submit only his self-serving declaration . . . that was not subject to
cross-examination.” Dorton’s failure to testify at the hearing on the
new trial motion undercuts his ability to prove his claim that his
trial attorneys were incompetent. (See People v. Dennis, supra, 177
Cal.App.3d at p. 873 [“Since the burden is upon the defendant to
prove his claim of ineffectiveness of counsel, the choice whether to
present evidence or to remain silent is also his. But his decision
must be made in light of the fact that silence will not support a
motion for new trial”].)
Moreover, the trial court expressly advised Dorton of his right
to testify during trial.33 In denying the motion for new trial, the
court noted that Fletcher advised the court during trial that he
intended to play the entirety of Dorton’s police interview so that
Dorton would not have to take the stand. The recording was played
for the jury during trial. Under these circumstances, the trial court
reasonably found that Dorton could not “credibly claim that he did
not have the opportunity to testify.”
Second, with regard to trial counsel’s failure to call real estate
expert Fierstadt, the trial court found no resulting prejudice, noting
that “[t]his was not a lockout,” and that “at no time during the trial
proceedings or during the lengthy post-trial proceedings has
33 Prior to the presentation of the defense case, the trial court
advised Dorton he had an “absolute right to testify” and an
“absolute right not to testify.” The court stated, “It’s my
understanding you have chosen not to testify after consultation
with your attorney. Is that what your decision is?” Dorton replied,
“I choose not to answer, your Honor.” The court concluded, “So, I’ve
given you the advisement that you know that you have that right.”
60
[Dorton] demonstrated he was the lawful owner of the home at the
time of the incident.” Nevertheless, the trial court allowed Dorton
to elicit testimony that the NBG crew had not obtained a writ of
possession, and argue that he was attempting to eject the NBG
crew as trespassers. As we previously explained, Fletcher initially
indicated he would call a real estate expert, but subsequently
changed his mind—attempting instead to elicit favorable opinions
from prosecution witnesses. (See Discussion I, subsection D, ante.)
Dorton himself did not present Fierstadt as a witness at his
new trial motion hearing. Instead he relied on a vague, conclusory,
and untested, statement in Fierstadt’s declaration that Fierstadt
would have refuted “the prosecution’s theory that a deed or 24[-]
hour notice allows locks to be changed without the consent of the
person in possession.” Dorton contends Fierstadt would have
disproved the prosecution’s theory that NBG was a lawful owner of
the property with the right to enter the property, which would have
bolstered the defense argument that the NBG crew members were
trespassing. Fierstadt’s cursory statement, however, is inadequate
to disprove the prosecution’s theory, and therefore does not support
Dorton’s burden to show Fletcher was incompetent in failing to call
Fierstadt to testify. Moreover, as noted by the trial court, the most
relevant inquiry at trial was whether Dorton’s actions were
reasonable under the circumstances.
Third, with regard to video analyst Guzman-Sanchez, the
trial court found that the videos he created “do not clearly show
that any members of the NBG crew were carrying firearms on the
[p]roperty before Mendoza was shot”; “that the videos do not have
significant impeachment value beyond what was presented to the
jury”; “and that the analysis of the videos is speculative and
conclusory.” The trial court cited as an example Guzman-Sanchez’s
testimony “that one of the witnesses was carrying a gun, based
61
merely on an image of the witness with a slight bulge or wrinkle in
his shirt.” As to the remaining “evidence” cited by Guzman-
Sanchez, the trial court pointed out that any elicited testimony
regarding Brackens and his firearm “occurred after the shooting of
Mendoza.” We discern no error in the court’s determination of these
matters, and conclude that trial counsel did not render deficient
performance in deciding against calling Guzman-Sanchez as an
expert witness at trial. (Strickland v. Washington, supra, 466 U.S.
at p. 689 [“It is all too tempting for a defendant to second-guess
counsel’s assistance after conviction or adverse sentence . . . . [T]he
defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound
trial strategy’ ”].)
Fourth, with regard to the failure of counsel to call Dorton’s
wife to the stand, the trial court noted that her proposed testimony
would have had “marginal relevance.” Further, at best, her
statement that she never spoke to the NBG crew amounted to
“collateral impeachment,” given the “clear evidence” that Dorton
himself had been notified that the NBG crew would be changing the
door locks at the property. We further note that Smith-Dorton was
originally on the prosecution’s witness list. At the pretrial hearing,
Fletcher informed the court that Smith-Dorton was the “alleged
tenant” at the property, but pointed out that she “cannot be forced
to testify against [Dorton]” and “[s]o the People won’t be calling
her.” This statement comports with Fletcher’s testimony at the new
trial hearing wherein he indicated he believed the spousal privilege
applied to her testimony. In contrast, Smith-Dorton’s posttrial
declaration states that she was not a tenant and she never told
anyone she was a tenant. Her statement contradicts Fletcher’s
representations to the court. Smith-Dorton’s failure to testify at the
new trial hearing undermines the utility of her declaration, which is
62
untested by cross-examination. (People v. Dennis, supra, 177
Cal.App.3d at p. 873 [“With regard to a motion for a new trial, it
has been said ‘ “there can be no such thing as a legal trial, unless
both parties are allowed a reasonable opportunity to prepare to
vindicate their rights” ’ ”].)
Fifth, the testimony by Goodman, which implied that
Brackens might have stolen his .38 firearm from her home, thereby
potentially impeaching his testimony that he received the firearm
from his brother-in law, also amounted to collateral impeachment,
at best, and would not have altered the outcome of the case.
Finally, with regard to the failure of counsel to submit
Dorton’s jailhouse medical records, the trial court observed that the
“alleged medical record” proffered at the hearing on the new trial
motion was “vastly redacted and [did] not reflect that [Dorton]
suffered a head injury on the date of the incident.” The court
pointed out that “[t]he jury saw pictures of [Dorton’s] injuries after
[his] arrest and heard testimony from the emergency medical
technician who treated [Dorton]. The pictures and testimony
indicated that [Dorton] suffered a small cut to his upper lip and
that no injuries were visible on the top of [Dorton’s] head.”
Accordingly, the trial court concluded that the alleged medical
record “even if admissible at trial, would not have reasonably
impacted the jury’s determination of [Dorton’s] guilt.”
On appeal, Dorton does not cite to any part of the record
containing the alleged medical records. (See Cal. Rules of Court,
rules 8.204(a)(2)(C), 8.360(a).) Instead, he cites to testimony he
elicited from Person-Lynn during his new trial hearing.34 In
34Trial counsel Fletcher testified that he knew Dorton’s
medical records were available, but did not submit them at trial
because that would have been Person-Lynn’s responsibility.
63
questioning Person-Lynn, Dorton asked him whether, during the
course of the trial, Person-Lynn had “observe[d] attorney Matthew
Fletcher with the certified medical records of Fred Dorton from the
Los Angeles County Jail that established that Fred Dorton suffered
a head injury.” Person-Lynn responded, “Yes I did.” Dorton
followed up by asking Person-Lynn, “And that was from being hit in
the head with a hammer on January 14th 2015, by James
Mendoza?” Person-Lynn responded, “Yes, from my understanding.”
Person-Lynn agreed these records could have been offered to refute
Mendoza’s testimony that he did not make contact when he tried to
strike Dorton with a hammer during the struggle. Person-Lynn
also agreed that these records would have refuted the testimony of
the paramedic who testified that Dorton originally declined any
treatment at the scene.
Person-Lynn’s responses to Dorton’s leading questions are not
a substitute for the presentation of admissible evidence of the
contents of the medical records. His testimony, in light of the trial
record, is insufficient to satisfy Dorton’s dual burden of establishing
that trial counsel was ineffective for failing to seek admission of his
jailhouse medical records, and that this alleged ineffectiveness
prejudiced him. (People v. Dennis, supra, 177 Cal.App.3d at p. 873.)
In sum, the record discloses no basis upon which to overturn
the trial court’s conclusion that none of Dorton’s ineffective
assistance of counsel claims constituted a basis for granting
Dorton’s new trial motion.35
35 To the extent Dorton asks us to aggregate the prejudice
flowing from the ineffective assistance claims identified in his new
trial motion with any prejudice flowing from his ineffective
assistance claim in Discussion II, there is nothing to aggregate.
(See Discussion II, ante.)
64
DISPOSITION
The judgment of the trial court is affirmed in all respects.
NOT TO BE PUBLISHED
FEDERMAN, J.*
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
65