Filed 2/26/21 P. v. Seales CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A155975
v.
TROY SEALES, (Alameda County
Super. Ct. No. 17CR026867)
Defendant and Appellant.
A jury convicted defendant Troy Seales of murder and shooting at an
occupied vehicle. He contends that the trial court committed reversible error
because it restricted the pretrial disclosure of a key witness’s statements to
defendant under Penal Code1 section 1054.7. He further claims the trial
court erred in conducting the good cause hearing resulting in the restricted
disclosure order in camera on an ex parte basis. Defendant finally argues
that his trial counsel rendered ineffective assistance of counsel. Finding no
merit in defendant’s contentions, we shall affirm the judgment.
I. BACKGROUND
The Alameda County District Attorney filed an information charging
defendant with the murder of Deandre Adams on or about August 25, 2017
All further statutory references are to the Penal Code unless
1
otherwise indicated.
1
(§ 187, subd. (a) (count one)) and shooting at an occupied motor vehicle (§ 246
(count two)). The information alleged that defendant personally and
intentionally discharged a firearm and caused great bodily injury and death
(§§ 12022.53, subds. (c), (d), 12022.7, subd. (a)), and personally used a firearm
(§ 12022.5, subd. (a), 12022.53, subds. (b), (g)). A jury found defendant guilty
as charged. The trial court denied defendant’s motion for a new trial, and it
sentenced defendant to a total term of 50 years to life in prison. Defendant
appealed.
A. The Prosecution’s Case
On August 11, 2017, defendant’s sister used her Hertz Rental Car
employee discount to rent a white Dodge Charger, and she listed defendant
as an additional driver.
In August 2017, Doneisha Guidry lived with her mother, her two
children, and Mercedes Tanner in a two-bedroom apartment located on 89th
Avenue near Olive Street in Oakland, California. Guidry’s cousins, Kendrick
Riley and his younger brother, Dupree Riley,2 often hung out at her
apartment.
On August 24, 2017, Kendrick, his son, and his son’s mother stayed in
the living room of Guidry’s apartment. In the morning of August 25, 2017
(August 25), Deandre Adams broke Guidry’s car windows. After the
vandalism, defendant, the father of Guidry’s children, came to her apartment
in a white Dodge Charger. Kendrick testified that defendant appeared that
morning, and, at some point, he saw that defendant had a duffle bag.
Tanner, Dupree, Dupree’s girlfriend, and Naja Sims-Harris (a cousin of
Guidry, Kendrick, and Dupree) were also at Guidry’s apartment on August
2We will refer to Kendrick and Dupree Riley by their first names to
distinguish them.
2
25. At some point, Tanner, Sims-Harris, and Dupree walked to the corner
store. Tanner testified that there were gunshots while they were at the store,
and she saw a green Honda. Sims-Harris pushed Tanner into the store, and
Tanner called Guidry to ask if defendant could pick her up. Tanner was not
sure whether Dupree was inside or outside of the store when she called
Guidry. Sims-Harris testified that Dupree left and did not come into the
store with the two women.
Kendrick testified that, after leaving to go to the store with his two
cousins, Dupree returned to Guidry’s apartment and said that something
happened at the store. Defendant, Kendrick, and Dupree walked out of the
apartment together. Kendrick testified that he and Dupree ran to the store
to check on their cousins, and Dupree carried a gun that fired blanks.
Defendant picked up Tanner and Sims-Harris at the store in the white
Dodge Charger and dropped them back at Guidry’s apartment. He then left.
At about the time defendant dropped off Tanner and Sims-Harris, Kendrick
and Dupree returned on foot. Kendrick, Dupree, and Sims-Harris spoke
outside of the apartment building with Dupree’s girlfriend, who was in her
car. Kendrick, Dupree, and Sims-Harris heard gunshots. Sims-Harris heard
about four gunshots, saw a dark green Honda driving fast on Olive Street,
and ran into the apartment. Kendrick and Dupree ran towards the gunshots,
but when they heard additional gunshots, they ran back to the apartment.
Around 10:20 a.m. on August 25, Damien Jackson was driving his black
Audi on 89th Avenue and turned left off of 89th Avenue onto Olive Street.
After he turned left onto Olive Street, he heard gunshots. He looked in his
rearview mirror and saw a man shooting an AK-style rifle in his direction
and a green car driving fast behind him. Jackson made a quick left turn onto
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90th Avenue and looked over his shoulder. The driver of the green car was
slumped, and the car was drifting to the right.
Around 10:20 a.m. on August 25, from her mother’s house on the
intersection of 89th Avenue and Olive Street, Megan Thompson looked out
the window and saw a man shooting an assault rifle. Thompson described
the shooter as a thin male about five feet, six or seven inches tall, having
short black hair, lighter skin color (possibly Hispanic), and wearing a black
shirt and baggy blue jeans.
Swazeere Dean, an EMT, lived near the crime scene. On August 25
around 10:20 a.m., his daughter woke him up and said that someone had
been shot and crashed their car. Dean rendered assistance to Adams, who
was in the crashed car and had two bullet holes through his chest.
Police recovered fourteen 7.62 rifle shell casings on Olive Street
between 88th and 89th Avenues and a bullet fragment from a car parked on
Olive Street and 89th. Criminalist Mark Bennet examined the bullet
fragment and shell casings and determined that they were consistent with
having been fired from an AK-47 assault rifle or an SKS-type rifle. Inspector
Hawks, an expert on cell phone data analysis, determined that the cell phone
defendant had been using moved north from Hayward to San Leandro and
into Oakland near the crime scene between 9:00 a.m. and 10:18 a.m. on
August 25. At 10:27 a.m., the cell phone pinged off a tower at 10850
MacArthur in Oakland and then moved southward to Hayward until 11:08
a.m.
Video Surveillance Evidence
The prosecutor showed surveillance video from the morning of August
25. The first video was recovered from 2036 89th Avenue and it showed both
89th Avenue and the parking lot in front of Guidry’s apartment building.
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The video showed Adams vandalizing Guidry’s car. It also showed that,
sometime later that morning, defendant parked a white Dodge Charger
outside the apartment building, got out, and walked to the apartment
building carrying a dark bag in his right hand.
The video then captured Dupree, Tanner, and Sims-Harris leaving the
apartment, and subsequently showed Dupree running back into the
apartment. Very shortly thereafter, defendant, Kendrick, and Dupree left
the apartment together. Kendrick and Dupree looked around, defendant
looked around, and defendant got into the driver’s side of his car and drove in
the direction of the corner store. Dupree then went back inside the
apartment and came back out. At that point, Kendrick and Dupree ran down
the street in the direction that defendant had driven. A couple minutes later,
defendant returned in the white Dodge Charger, dropped off Tanner and
Sims-Harris, and drove off. Surveillance video captured Damien Jackson
driving his black Audi on 89th Avenue behind defendant as defendant pulled
back onto the road after dropping the women off. Kendrick and Dupree then
returned on foot and spoke with Dupree’s girlfriend, who had pulled up on
89th Avenue in front of the apartment building. Kendrick and Dupree then
suddenly took off running, again in the direction that defendant had driven.
The prosecutor also played surveillance video taken from 2006 89th
Avenue on August 25. At trial, Kendrick confirmed that this video depicted a
white Dodge Charger that looked similar to the car defendant drove on
August 25. The white car turned right onto Olive Street at the intersection of
89th Avenue and Olive Street about sixteen seconds after 10:20 a.m. Damien
Jackson confirmed that this surveillance showed him driving behind the
white car and turning left onto Olive Street approximately twenty seconds
after 10:20 a.m. At approximately forty-two seconds after 10:20 a.m.,
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Kendrick and Dupree are depicted running on 89th Avenue towards the
corner of the intersection with Olive Street, and Dupree extends his arm in
what appears to be a shooting motion with a blank firing gun.
Kendrick’s Statements and Testimony
When the police detained Kendrick on August 25, he told them he had
been in Guidry’s apartment when he heard gunshots and he did not know
what happened. Kendrick claimed that he saw a white Dodge Charger
parked down the street, but he did not tell police who had been driving the
car. Kendrick did not tell the police that Dupree had a gun or that he had
been involved in a crime.
On February 21, 2018, Investigator Basa and the prosecutor met with
Kendrick. Kendrick was “very hesitant” to speak with them, and Basa
assured Kendrick they would not record the conversation. Kendrick told
them defendant drove a white Dodge Charger just before the shooting, and
defendant had showed Kendrick a rifle in a duffle bag that day. Basa served
Kendrick with a subpoena; Kendrick said that he was afraid to testify and
feared for his family’s safety.
On March 5, 2018, Investigator Basa and the prosecutor met with
Kendrick again. They assured him that their conversation was not being
recorded and showed him the surveillance video. After watching the video,
Kendrick said there was no reason for him to lie. He said that defendant had
been driving the white Dodge Charger on August 25, and defendant arrived
at Guidry’s apartment carrying a duffle bag. At some point, Dupree came
into the apartment and said that Adams had shot at him. Defendant came
out of Guidry’s bedroom with a rifle and said he was going to “take care of
this.” Defendant, Kendrick, and Dupree left the apartment. When they
reached the security gate, defendant “racked a round” and hid the rifle inside
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his pants. Kendrick and Dupree served as lookouts while defendant put the
rifle in the white Dodge Charger. Kendrick also said that, after the shooting,
he overheard defendant on the phone tell Guidry, “You know what I’m about,
and tell everybody keep their mouth shut.” Further, a day or two after the
shooting, defendant threatened Kendrick’s safety and told him he had to
leave. Kendrick told Basa several times that he was afraid to come to court
to testify, and he took defendant’s threats seriously.
At trial, Kendrick said defendant showed up at Guidry’s apartment on
August 25. He remembered defendant asking for a cigarette but claimed he
did not hear defendant say anything else. He never saw defendant put
anything in the white Dodge Charger. He could not remember if he saw
defendant with a rifle that day or if he had told Basa that he had seen
defendant with a rifle. He could not remember if he told Basa that defendant
said something like, “I’m about to take care of this once and for all,” or if he
told Basa that that defendant put the rifle in his pants and told Dupree and
Kendrick to “keep a lookout” as they left the apartment. Kendrick did not
remember telling Basa that defendant “racked a round.” Kendrick testified
that he was aware that surveillance video showed everything, and the video
was “accurate.” Kendrick also conceded that he was honest with the
prosecutor and Basa when he spoke to them. He admitted that he lied
several times when he first talked to police because he wanted to protect
Dupree.
Milisa English’s Statement and Testimony
On September 10, 2017, police interviewed Milisa English, defendant’s
ex-girlfriend, after she contacted them. English said that, on the morning of
August 25, while defendant was at her place, his “baby mama” called and told
him something had happened. After the call, defendant said he was going to
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go “take care [of] this nigga,” and left; he had a duffle bag containing an AK-
47 rifle and a pistol in his car. When defendant returned a couple of hours
later, he told English, “I think I killed that nigga.” Defendant explained that
the guy crashed his car, and defendant did not believe the guy would have
crashed unless he was dying.
At trial, English testified that she lied to police about defendant’s
involvement in the shooting because she had been upset about seeing him
with another woman. She confirmed that she broke up with defendant
because she caught him at a casino with another woman. After her interview
with police, the FBI gave English $2,000 to relocate from her apartment in
Hayward.
B. The Defense Case
Me’Ya Dean, Swazeere Dean’s daughter, testified that she heard
gunshots and a car crashing on August 25, and she saw a black Volvo
speeding up the street. Investigator Stannard drove three different routes to
see how far a person could get in twenty-one seconds from the intersection of
89th Avenue and Olive Street, and then marked his stopping points on a
chart for the jury to view.
II. DISCUSSION
A. Pretrial Disclosure under Section 1054.7
Under criminal discovery rules, the prosecution must disclose to the
defendant “[r]elevant written or recorded statements of witnesses or reports
of the statements of witnesses whom the prosecutor intends to call at the
trial.” (§ 1054.1, subd. (f).) These disclosures must be made at least thirty
days before trial “unless good cause is shown why a disclosure should be
denied, restricted, or deferred. If the material and information [to be
disclosed] becomes known to, or comes into the possession of, a party within
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thirty days of trial, disclosure shall be made immediately, unless good cause
is shown why a disclosure should be denied, restricted, or deferred. ‘Good
cause’ is limited to threats or possible danger to the safety of a victim or
witness, possible loss or destruction of evidence, or possible compromise of
other investigations by law enforcement. [¶] Upon the request of any party,
the court may permit a showing of good cause for the denial or regulation of
disclosures, or any portion of that showing, to be made in camera. A
verbatim record shall be made of any such proceeding.” (§ 1054.7.)
Pursuant to section 1054.7, the trial court ordered that defendant, but
not his counsel, would be restricted from seeing a summary of Kendrick’s
statements. Defendant argues that his exclusion and his counsel’s exclusion
from the in camera hearing to determine the existence of good cause violated
his right to counsel and to due process of law under the federal Constitution.
He also argues that the trial court abused its discretion in finding good cause
for the restricted disclosure based on threats or possible danger to Kendrick
and asserts that the prejudice he suffered therefrom requires reversal of the
judgment. Defendant’s claims lack merit.
Additional Background
On February 21, 2018 and March 5, 2018, Kendrick made oral,
unrecorded, statements to Investigator Basa and the prosecutor, and
Investigator Basa later drafted a detailed summary of these statements. On
March 13, 2018, the prosecutor filed a section 1054.7 motion seeking to
restrict the disclosure of Kendrick’s statements to defendant and his counsel,
or, alternatively, to preclude disclosure to defendant on the ground that
Kendrick’s safety was endangered. The prosecutor asked the court to conduct
an in camera review of Investigator Basa’s report of Kendrick’s statements to
make its decision.
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The trial court held an in camera hearing without defendant or his
counsel on March 13. Immediately thereafter, the court conducted a hearing
in open court with all parties. The court asked if defense counsel was willing
to waive defendant’s presence for the proceeding, and defense counsel did so.
The trial court stated that it had conducted an in camera hearing, and, based
on its review of the summary of Kendrick’s statements, the prosecutor’s
declaration supporting the motion, and the prosecutor’s comments in camera,
the court intended to order the disclosure of the summary of Kendrick’s
statements with the restriction that defense counsel not reveal its contents to
defendant. The trial court stated that this would allow defense counsel to
work with his investigator to prepare for trial.
Defense counsel raised a number of objections to the court’s intended
ruling, arguing that the prosecutor failed to establish a sufficient threat or
danger to Kendrick. Defense counsel noted that he was “in the dark” to some
extent because he had not read Kendrick’s statements. The prosecutor stated
that he was not requesting an indefinite restriction, and he intended to
concede that defense counsel could speak to defendant about the statements
closer to trial. The prosecutor stated that many of the incriminating facts in
the case were reflected in other evidence, including the statement of another
witness and surveillance video. Additionally, the prosecutor clarified that he
had obtained the bulk of the information in the summary of Kendrick’s
statements from the March 5 interview, his investigator then left the country
for five days, and the prosecutor brought the motion as soon as Investigator
Basa returned and authored his report. The prosecutor also clarified that he
had called defense counsel the week before, told him that he intended to
bring the section 1054.7 motion, and told defense counsel that the witness
was Kendrick. Defense counsel confirmed that the prosecutor’s comments on
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the timing and substance of the disclosure were accurate, and he had no issue
with the notice.
After hearing argument, the trial court stated that it understood that
defense counsel was “in the dark to an extent,” because he had not reviewed
Kendrick’s statements. Thus, the trial court invited defense counsel to
provide further argument on the issue and check in with the court on Friday,
March 16, if he thought it necessary after he read the summary but ruled
that disclosure to defendant would be restricted for the time being. The trial
court ordered the in camera hearing be sealed and the prosecutor’s filing be
kept in a confidential envelope in the court file. On March 16, three days
before the beginning of jury selection, the trial court lifted its restriction on
disclosure.3
Defendant Has Not Established Prejudicial Error
We first address defendant’s argument that his exclusion from the in
camera hearing violated his constitutional rights to counsel and to due
process of law under the federal Constitution. (U.S. Const., 6th & 14th
Amends.) “ ‘ “Under the Sixth Amendment, a defendant has the right to be
personally present at any proceeding in which his appearance is necessary to
prevent ‘interference with [his] opportunity for effective cross-examination.’
[Citations.] Due process guarantees the right to be present at any ‘stage . . .
that is critical to [the] outcome’ and where the defendant's ‘presence would
contribute to the fairness of the procedure.’ ” ’ ” (People v. Thompson (2016) 1
Cal.5th 1043, 1098 (Thompson).)
3 In defendant’s motion for a new trial, defendant states that the order
was lifted two days prior to jury selection. Jury selection began on Monday,
March 19, so Friday, March 16 was the last day the court was in session
before the March 19 date.
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Initially, it appears that defendant forfeited his challenge by failing to
object and obtain a ruling in the trial court. Defense counsel received prior
notice of the March 13 hearing and was present in court that day. The court’s
minute order reflects that the hearing began at 9:41 a.m. with all counsel
present, and counsel conferred with the court in chambers. At 10:26 a.m., the
court granted the prosecutor’s request and conducted an in camera hearing.
After the in camera hearing, at 10:39 a.m., the court went on the record in
open court. Defense counsel objected to the court issuing an order restricting
disclosure of Kendrick’s statements to his client because the prosecutor’s
declaration did not show that Kendrick was in danger. Defense counsel did
not object to the court having conducted the in camera hearing with the
prosecutor. Further, the prosecutor stated for the record that, the week
before the hearing, he had informed defense counsel that he intended to file a
motion under 1054.7 related to Kendrick. Defense counsel again did not
object to the ex parte in camera review, and he confirmed that he had no
issue with the prosecution’s notice. Defendant forfeited his constitutional
challenges by failing to object that the in camera hearing should not have
been held on an ex parte basis. (People v. Valdez (2012) 55 Cal.4th 82, 121–
125 (Valdez) [defendant appeared to forfeit challenge that he was denied the
right to counsel and due process by ex parte in camera hearings under section
1054.7 by failing to raise the issue below].)
In any event, even if defendant preserved the challenge for appeal,
reversal would not be warranted. “Contrary to defendant’s assertion, even
where a court errs in proceeding ex parte, the error is not reversible per se.”
(Valdez, supra, 55 Cal.4th at p. 125.) In Valdez, our Supreme Court held that
prejudicial error review applies to evaluation of alleged federal constitutional
violations resulting from the conduct of ex parte in camera hearings under
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section 1054.7. (Id. at pp. 125–126.) In Thompson, our Supreme Court
reviewed for prejudicial error a claim that the defendant’s constitutional
rights to counsel and to due process were violated by the conduct of an ex
parte hearing regarding the discovery of letters in a co-defendant’s
possession, and ultimately found no prejudice. (Thompson, supra, 1 Cal.5th
at p. 1098.)
Likewise, we perceive no prejudice on the record before us. Defense
counsel was given a detailed summary of Kendrick’s statements on March 13,
and he enlisted the assistance of his investigator to interview Kendrick.
Although defendant’s investigator could not locate Kendrick because
Kendrick apparently had no stable residence, defendant does not challenge
the timing of the prosecution’s initial disclosure of Kendrick’s statements in
this appeal, and counsel’s inability to locate Kendrick did not result from the
court’s order restricting disclosure of Kendrick’s statements to defendant for
a few days.
Nor do we perceive reversible error in defense counsel’s inability to
discuss Kendrick’s statements with defendant for a short period of time. On
March 16, three days before jury selection, the trial court lifted the order
restricting disclosure. Opening statements and the presentation of evidence
began on March 27, and Kendrick testified on March 27 and 28, giving
defense counsel ample time to discuss Kendrick’s statements with defendant.
At the March 13 hearing, the trial court informed defense counsel that he
could seek to revisit the restricted disclosure order if counsel felt it was
necessary once he reviewed the summary of Kendrick’s statements.
Defendant did not ask for a continuance or raise any further objections to the
court’s ruling after the prosecution disclosed the summary to him on March
13, indicating that counsel was able to effectively prepare for trial. Indeed,
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review of the record shows that defense counsel thoroughly cross-examined
Kendrick about his statements and used surveillance video to point out
inconsistencies with these statements. There was thus no prejudicial error
under state or constitutional standards. (See Valdez, supra, 55 Cal.4th at p.
128.)
Defendant next argues the trial court abused its discretion in finding
good cause to restrict disclosure of Kendrick’s statements. Specifically, he
claims that the vague, generalized assertions regarding danger to Kendrick
in the prosecutor’s declaration did not establish good cause. We reject
defendant’s argument because the trial court’s order is presumed correct, and
defendant failed to provide an adequate record demonstrating error. (People
v. Garza (2005) 35 Cal.4th 866, 881 [the trial court’s order is presumed
correct, and it is appellant’s burden to demonstrate error]; People v.
Chubbuck (2019) 43 Cal.App.5th 1, 13 [rejecting the defendant’s sentencing
challenge where he failed to provide an adequate record].) The trial court
relied on the prosecutor’s in camera statements, Investigator Basa’s
summary of Kendrick’s statements, and the prosecutor’s declaration in
making its good cause ruling. Defendant cites to the public hearing
transcript where his counsel discusses some of the prosecutor’s declaration,
and he augmented the record to include the sealed transcript of the in camera
hearing. But the record does not contain Investigator Basa’s summary of
Kendrick’s statements or the prosecutor’s declaration. Defendant thus fails
to establish error in the court’s ruling. In any event, even if we were to
assume the court abused its discretion, for the reasons set forth above, the
error was harmless under any standard.
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B. Ineffective Assistance of Counsel
Defendant argues that his trial attorney rendered ineffective assistance
of counsel by not objecting to the introduction of Milisa English’s statement
that defendant robbed a Target store. We disagree.
Additional Background
In her September 10 statement to police, in addition to the information
she provided regarding the shooting, English disclosed that defendant robbed
a Target store with three others and got away with $60,000. At trial, English
reluctantly testified because she understood that she could be arrested if she
did not testify. She claimed that she had fabricated everything that she told
the police on September 10, including her allegations about the Target
robbery, a robbery she saw on the news and thought she could “add on” to
make defendant’s situation worse. She lied because she wanted defendant to
go to jail. The prosecutor asked if English would be considered a snitch if she
had been truthful with the police, and she confirmed that was the case.
English’s statement was played to the jury, including the part about the
Target robbery.
After English’s statement was played, outside of the jury’s presence,
the trial court, the prosecutor, and defense counsel discussed her statement
with respect to the Target robbery. Defense counsel stated that, with the
understanding that the prosecutor was not going to seek to introduce
evidence of uncharged crimes, he had not objected to playing this part of
English’s statement because his strategy was to argue that English had been
“reaching for straws” and making up “grandiose” claims. The prosecutor
stated for the record that, pursuant to the parties’ agreement, he had deleted
English’s reference to defendant having been in federal prison. He also
confirmed that he did not intend to introduce any evidence regarding the
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Target robbery other than to ask one of the officers who interviewed English
“whether he had followed up in identifying the people who Miss English
makes reference to.”
Analysis
To establish ineffective assistance, a defendant must show counsel’s
performance was “deficient, in that it fell below an objective standard of
reasonableness under prevailing professional norms.” (People v. Mai (2013)
57 Cal.4th 986, 1009.) Reviewing courts defer to counsel’s reasonable tactical
decisions in examining a claim of ineffective assistance of counsel, and there
is a presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance. (Ibid.) Courts should not second-guess
reasonable, if difficult, tactical decisions in the “harsh light of hindsight.”
(People v. Scott (1997) 15 Cal.4th 1188, 1212 (Scott).) Counsel’s
decisionmaking must be evaluated in the context of the circumstances at the
time. (Ibid.) To establish ineffective assistance, a defendant must also show
“resulting prejudice, i.e., a reasonable probability that, but for counsel’s
deficient performance, the outcome of the proceeding would have been
different.” (Mai, at p. 1009.) A reasonable probability is one sufficient to
undermine confidence in the outcome. (Scott, at pp. 1211–1212.)
Defendant does not satisfy his burden of showing his trial counsel made
a tactical decision that fell below an objective standard of reasonableness.
English testified that she lied to the police, and the prosecutor began her
testimony by introducing evidence that she tried to leave the courthouse that
day and had to be handcuffed, she did not want anything to do with the trial,
and she had received a threatening message calling her a snitch. The
prosecutor clearly intended to show that English was lying on the stand but
had told the truth in her interview, and defense counsel needed to show the
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opposite. Counsel had reviewed English’s statement, and he believed that
what it conveyed about the Target robbery would be of use to show that
English was not credible in her interview. We are not in a position to second-
guess counsel’s impressions of how a jury would receive English’s statement.
Defense counsel also highlighted English’s “outlandish tales” to police in his
closing argument and emphasized that there was no evidence that defendant
robbed Target. He obtained the prosecutor’s agreement that he would not
present evidence or argue that defendant committed the robbery, and the
court instructed the jury that they could only consider English’s statements
about the robbery to evaluate her credibility. On this record, defense counsel
made a reasonable tactical decision that we will not second-guess “in the
harsh light of hindsight.” (Scott, supra, 15 Cal.4th at p. 1212.)
Defendant also fails to show prejudice. His prejudice argument
depends on the assumption that jurors would have relied on the robbery to
conclude that defendant was a person of bad character who therefore
committed the murder. The fallacy in this argument is that English’s
statement provided the only evidence that defendant robbed Target, and, in
that same statement, she provided strong evidence that defendant killed
Adams. Thus, any credence the jurors placed in the evidence of the robbery
depended entirely on their acceptance of the veracity of English’s statement.
If jurors did not believe English was truthful about what she told police
regarding the shooting, it is unlikely they would have believed her statement
about the robbery. There was also strong additional evidence of defendant’s
guilt, including Kendrick’s statements to Investigator Basa, the shells and
bullet fragments recovered, the surveillance showing the events outside of
Guidry’s apartment leading to the time of the shooting, Damien Jackson’s
testimony, and the surveillance video of Jackson and defendant driving down
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89th Avenue just before the shooting and turning in opposite directions onto
Olive Street. Defendant thus has not shown that it is reasonably probable
that English’s statements about the robbery improperly led the jury to
conclude that defendant was a bad person and therefore committed the
charged crimes.
III. DISPOSITION
The judgment is affirmed.
BROWN, J.
WE CONCUR:
STREETER, ACTING P. J.
TUCHER, J.
People v. Seales (A155975)
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