PEOPLE v. BRANSCOMBE

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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Christian BRANSCOMBE et al., Defendants and Appellants.

No. C023375.

Decided: March 20, 1998

Janice M. Lagerlof, San Francisco, and Patricia L. Watkins, Half Moon Bay, under appointments by the Court of Appeal, for Defendants and Appellants. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Shirley A. Nelson and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Christian Branscombe and Joshua Richter of murder, attempted murder and related charges. We shall affirm. In the published part we hold that the People may introduce rebuttal evidence consisting of statements taken by peace officers in deliberate violation of the rules announced in Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (Miranda ), an issue pending in the California Supreme Court. (People v. Peevy (S056734), review granted Jan. 22, 1997, cause argued March 3, 1998.)

I.***

II.

Each defendant claims ineffective assistance of trial counsel.   Each must show his trial attorney's conduct was deficient and such deficiency caused prejudice.  (Strickland v. Washington (1984) 466 U.S. 668, 687-696, 104 S.Ct. 2052, 2064-2069, 80 L.Ed.2d 674, 693-699;  People v. Ledesma (1987) 43 Cal.3d 171, 216-218, 233 Cal.Rptr. 404, 729 P.2d 839.)

A.

Richter faults his trial counsel's conduct in several respects.   He has not established prejudicial error.

1. Richter's attorney did not move to suppress statements Richter made to the police.   At the time of his arrest, Richter was in the process of telephoning his attorney.   A detective knew that and did not give Richter the advisements compelled by Miranda.   Although Richter invoked his right to an attorney in the discussion, the detective continued to question him to obtain “impeachment” evidence, because it was his understanding that as long as a statement was not coerced, it could be useful in court.

On appeal Richter contends:  “Because of counsel's failure, [the detective] was permitted to testify that appellant told [him] that his truck was not at the scene and that if the facts were as [the officer] represented them, then [Richter] was being set up.”   Richter asserts that an intentional Miranda violation constitutes a violation of the Fifth Amendment, the statements could not have been admitted for impeachment purposes, and, hence, his trial attorney did not provide effective counsel.   Here, the real sting of the evidence was not to prove Richter lied about the truck on the stand, but that he lied to the detective and, hence, was conscious of his guilt, but Richter raises no issue about this distinction in this portion of his brief:  He presents the case as raising a clear issue about the legality of admission of statements obtained in deliberate violation of Miranda and we accept the argument on those terms.   We reject the claim.

a. There are cases supporting Richter's major premise, that “intentional” Miranda violations taint a statement, such that it cannot even be used for impeachment.  (E.g., People v. Bey (1993) 21 Cal.App.4th 1623, 1628, 27 Cal.Rptr.2d 28.)   To the extent those cases hold that every statement elicited by an interrogator who intentionally violates the Miranda guidelines is necessarily a “coerced” statement, those cases were wrongly decided.

The Fifth Amendment to the United States Constitution provides in part, “No person ․ shall be compelled in any criminal case to be a witness against himself[.]”  Article I, § 15 of our state Constitution similarly provides that “[p]ersons may not ․ be compelled in a criminal cause to be a witness against themselves[.]”  This “privilege” against self-incrimination has been extended to proscribe the admission in court of out-of-court statements as well as the direct compulsion of testimony.

 An involuntary or coerced statement cannot be used against an accused in a criminal proceeding for any purpose.  (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 225, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854, 861;  People v. Haydel (1974) 12 Cal.3d 190, 197, 115 Cal.Rptr. 394, 524 P.2d 866.)   Such admissions, in addition to being excluded by the explicit language of constitutional provisions cited above, are unreliable (People v. Garner (1961) 57 Cal.2d 135, 163, 18 Cal.Rptr. 40, 367 P.2d 680), and “if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.”  (Culombe v. Connecticut (1961) 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037, 1057-1058.)

“Our decisions under that Amendment have made clear that convictions following the admission into evidence of confessions which are involuntary, i.e., the product of coercion, either physical or psychological, cannot stand.   This is so not because such confessions are unlikely to be true but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law:  that ours is an accusatorial and not an inquisitorial system-a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth.  [Citations.]   To be sure, confessions cruelly extorted may be and have been, to an unascertained extent, found to be untrustworthy.   But the constitutional principle of excluding confessions that are not voluntary does not rest on this consideration.   Indeed, in many of the cases in which the command of the Due Process Clause has compelled us to reverse state convictions involving the use of confessions obtained by impermissible methods, independent corroborating evidence left little doubt of the truth of what the defendant had confessed.   Despite such verification, confessions were found to be the product of constitutionally impermissible methods in their inducement.   Since a defendant had been subjected to pressures to which, under our accusatorial system, an accused should not be subjected, we were constrained to find that the procedures leading to his conviction had failed to afford him that due process of law which the Fourteenth Amendment guarantees.”  (Rogers v. Richmond (1961) 365 U.S. 534, 540-541, 81 S.Ct. 735, 739, 5 L.Ed.2d 760, 766-767.)

A statement is obtained involuntarily from a defendant when “the accused's abilities to reason or comprehend or resist were in fact so disabled that he was incapable of free or rational choice.”  (In re Cameron (1968) 68 Cal.2d 487, 498, 67 Cal.Rptr. 529, 439 P.2d 633;  see Townsend v. Sain (1963) 372 U.S. 293, 307, 83 S.Ct. 745, 754, 9 L.Ed.2d 770, 782 [“or if his confession was not ‘the product of a rational intellect and a free will,’ his confession is inadmissible because coerced.”].) Coercion is determined by considering the “totality of the circumstances.”  (In re Cameron, supra, 68 Cal.2d at p. 498, 67 Cal.Rptr. 529, 439 P.2d 633;  see People v. Benson (1990) 52 Cal.3d 754, 779, 276 Cal.Rptr. 827, 802 P.2d 330;  Culombe v. Connecticut, supra, 367 U.S. at p. 606, 81 S.Ct. at p. 1881, 6 L.Ed.2d at p. 1060.)

In Miranda, the United States Supreme Court imposed a set of prophylactic guidelines as follows.   A suspect who is subject to custodial interrogation, “must first be informed in clear and unequivocal terms that he has the right to remain silent ․ accompanied by the explanation that anything said can and will be used against the individual in court ․ [and the suspect] must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation.”  (Id. at pp. 467-471, 86 S.Ct. at pp. 1624-1626, 16 L.Ed.2d at pp. 720-722.)  “[T]he prosecution may not use statements ․ stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.”  (Id. at p. 444, 86 S.Ct. at p. 1612, 16 L.Ed.2d at p. 706.)

In Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (Harris ), the court held that statements elicited in violation of the Miranda requirements could be used for impeachment.  “It does not follow from Miranda that evidence inadmissible against an accused in the prosecution's case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies the legal standards.”  (Id. at p. 224, 91 S.Ct. at p. 645, 28 L.Ed.2d at p. 4.)  Harris held that “Miranda barred the prosecution from making its case” with defendant's statements.   However, as long as those statements are not coerced, the “petitioner's credibility [could] appropriately [be] impeached by use of his earlier conflicting statements.”  (Id. at pp. 224-226, 91 S.Ct. at pp. 645-646, 28 L.Ed.2d at pp. 4-5.)  “The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.”  (Id. at p. 226, 91 S.Ct. at p. 646, 28 L.Ed.2d at p. 5.) Even though there is concern that this holding will encourage intentional Miranda violations (see People v. May (1988) 44 Cal.3d 309, 333, 243 Cal.Rptr. 369, 748 P.2d 307 (dis. opn. of Mosk, J.)(May )), the greater worry lies in preventing perjury in our courtrooms.

Three years after Harris, supra, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 the California Supreme Court held as a matter of independent state law that statements obtained in violation of Miranda could not be used for impeachment.  (People v. Disbrow (1976) 16 Cal.3d 101, 113, 127 Cal.Rptr. 360, 545 P.2d 272.)   The court felt a “responsibility to separately define and protect the rights of California citizens despite conflicting decisions of the United States Supreme Court” on similar issues.  (Id. at p. 115, 127 Cal.Rptr. 360, 545 P.2d 272.)   The subsequent adoption of Proposition 8 (Cal. Const., art. I, § 28, subd. (d)) in 1982, effectively overruled Disbrow.  (May, supra, 44 Cal.3d 309, 243 Cal.Rptr. 369, 748 P.2d 307.)   The May court “[c]onclud[ed] that section 28(d) abrogated the Disbrow rule and thereby left Harris v. New York (1971) 401 U.S. 222 [91 S.Ct. 643, 28 L.Ed.2d 1] to govern the case[.]”  (May, supra, at p. 314, 243 Cal.Rptr. 369, 748 P.2d 307, extending the rationale of In re Lance W. (1985) 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744.)

The first California case after May involving intentional police violation of the Miranda rules was People v. Baker (1990) 220 Cal.App.3d 574, 269 Cal.Rptr. 475 (Baker ).   The police officers in Baker testified that they “purposefully continued their questioning of Baker after he invoked his Miranda rights for the express purpose of obtaining statements to be used against him should he elect to testify at trial.”  (Id. at p. 576, 269 Cal.Rptr. 475.)   The court explained that “[i]n balancing the societal interest to be served by preventing police misconduct against the perceived detriment of allowing defendants to commit perjury, the Harris and May courts have decided against the latter and in favor of the former.”  (Id. at p. 579, 269 Cal.Rptr. 475.)   Therefore, the statements were admissible to impeach.

However, two recent cases suggest that an “intentional” Miranda violation, without more, establishes coercion.   In People v. Bey, supra, 21 Cal.App.4th 1623, 27 Cal.Rptr.2d 28 (Bey ), an officer deliberately continued questioning a suspect after he refused to waive his right to remain silent.   The officer also misled the suspect into believing that his statements could not be used against him.  “ ‘I'm going to continue to ask you questions.   Now, you realize that you didn't waive your rights.   That means we can't use ‘em in court.’ ”  (Id. at p. 1627, 27 Cal.Rptr.2d 28.)   Thus, Bey did not involve a simple violation of Miranda.   This “present[s] a deliberate police violation of Miranda coupled with a misrepresentation to appellant about the legal consequences of that violation.”  (Id. at p. 1628, 27 Cal.Rptr.2d 28, italics added.)   The court appears to iterate that any intentional violation of Miranda would constitute an “illegal police coercion.”  (Ibid.)  This, however, is not the standard set forth by the Supreme Court.   To determine coercion, the court must look at the totality of the circumstances.  (In re Cameron, supra, 68 Cal.2d 487, 498, 67 Cal.Rptr. 529, 439 P.2d 633.)   To the extent Bey suggests a per se rule that a deliberate disregard of a suspect's invocation of Miranda rights necessarily establishes coercion, Bey is wrongly decided.

 In re Gilbert E. (1995) 32 Cal.App.4th 1598, 38 Cal.Rptr.2d 866 (Gilbert E.), which quotes Bey, is distinguishable because the trial court in Gilbert E. allowed the statements to be entered into the prosecution's case-in-chief.   Statements obtained through a violation of Miranda are inadmissible in the prosecution's case-in-chief.   This rule was established in Miranda and was not affected by Harris.   To the extent defendant relies on Gilbert E., such reliance is unavailing.

 To the degree that Bey and Gilbert E. can be read to impose a per se test of coercion, we disagree.   The intentional violation of a suspect's Miranda rights does not constitute a per se coerced confession making such statements inadmissible.   Statements obtained through an interrogation conducted in violation of Miranda are admissible to impeach a defendant's inconsistent testimony, if they are voluntary.   As the Supreme Court stated in Harris, “The impeachment process here undoubtedly provided valuable aid to the jury in assessing petitioner's credibility, and the benefits of this process should not be lost, in our view, because of the speculative possibility that impermissible police conduct will be encouraged thereby.   Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief.”  (Harris, supra, 401 U.S. at p. 225, 91 S.Ct. at p. 645, 28 L.Ed.2d at p. 4.) As stated above, a finding of involuntariness must be based on the totality of the circumstances.  (Schneckloth v. Bustamonte, supra, 412 U.S. at p. 227, 93 S.Ct. at p. 2048, 36 L.Ed.2d at p. 863;  In re Cameron, supra, 68 Cal.2d at p. 498, 67 Cal.Rptr. 529, 439 P.2d 633.)

 One further case merits discussion.   In Cooper v. Dupnik (9th Cir.1992) 963 F.2d 1220 (Cooper ), the police had “planned meticulously for the day they would arrest their first suspect” in a notorious rape case.   (Id. at pp. 1223-1224.)   Their plan was to ignore a suspect's constitutional rights, deny him contact with counsel or friends and interrogate him until he confessed.  (Id. at p. 1224.)   This, like Bey, was more than a simple Miranda violation.   As pointed out in Judge Wiggins's concurrence, “[i]n the present case, the police conduct went far beyond an ordinary Miranda rights advisement violation.”  (Cooper, supra, 963 F.2d at p. 1252 (conc. opn. of Wiggins, J.).)   Judge Brunetti's dissent points out that “[w]hat really offends the majority and seems to support its conclusion of a substantive due process violation is the fact that the officers interrogated Cooper in knowing violation of his Miranda rights.   This is not enough to establish a violation of substantive due process rights.”  (Id. at p. 1256 (dis. opn. of Brunetti, J.).)   We agree with Judge Brunetti and, of course, are not bound by the decisions of the United States Ninth Circuit Court of Appeals.  (See In re Tyrell J. (1994) 8 Cal.4th 68, 79, 32 Cal.Rptr.2d 33, 876 P.2d 519 [“decisions of the lower federal courts are persuasive but not controlling”].)

Statements obtained through intentional violation of the Miranda rules may be used for impeachment purposes when, based on the totality of the circumstances, they are voluntarily made.   Police officers are presented with a choice-they may cease questioning upon defendant's invocation of the right to remain silent or they may continue their discussion with the suspect and therefore lose the benefit of that evidence in the prosecution's case-in-chief.

b.

2. Richter argues his trial counsel should have objected to part of the prosecutor's argument.

 The prosecutor pointed out inconsistencies in Richter's story, focusing on the location of Johnson's safe and pointing out that Johnson had no car, but Richter had a truck, thus Richter could move the safe.   He then said, “It's reasonable to tell the cops I was there.   My truck was there, but it's selfdefense.   It's unreasonable to say my truck wasn't there.   It doesn't run right.”  (There was testimony Richter's truck was hard to start.)

On appeal Richter claims this “invited the jury to consider appellant's statement as showing consciousness of guilt.”   Assuming this is true, it is difficult to see how an objection and request for admonition would have changed anything, and Richter makes no effort to articulate the prejudice he asserts flowed from this alleged mistake by trial counsel.

 3. In an opaque argument, Richter accuses the prosecutor of committing misconduct “by asking appellant about a statement of his non-testifying codefendant which implicated appellant.”   Richter admits trial counsel “may have made and argued an oral motion” to redact Branscombe's statements, and “the court granted coappellant Branscombe's motions ‘with respect to Bruton error’ and referred to editing requirements.”   He continues:  “While the record is less than a masterpiece of clarity regarding what motions were made, the law of the subject is crystal clear.”

But “law” does not exist in a vacuum.   The applicable law depends on the facts before the court.   Since Richter confesses the record is unclear, and counsel “may have” taken the appropriate steps, he has failed in his burden to demonstrate error.   In any event, to the extent we can decipher the particulars of Richter's complaint, it is that the prosecutor should not have asked Richter about a conversation Richter had with Branscombe.   The prosecutor asked Richter if Branscombe said, “ ‘Did you tell them anything?’ [a]nd you say, ‘I just told them that I did not kill anyone,’ and da da da?  ․ And do you remember him saying, ‘Joshua [Richter], we were going to tell the truth.’ ”

Richter answered that he did not recall such statement.   For this reason there was no evidence of any such statement by Branscombe.   Therefore, Richter's claim that he was prejudiced by trial counsel's failure to object to the prosecutor's question goes nowhere.

 4. Richter contends trial counsel should have objected to evidence that Richter's girlfriend was buying a handgun in December of 1994.   The gun was a Sig Sauer model P229. There was testimony that it was both a 9 millimeter and a .357 caliber gun, but the jury was not informed that this was because of interchangeable barrels.   Although nobody argued this gun was used in this shooting, because Richter testified he did not own a gun (RT 1096) this evidence was relevant for impeachment.   The prosecutor failed to establish that the girlfriend was a “straw” purchaser and the evidence was left unconnected to any relevant issue.

Assuming objections should have been made, that somehow trial counsel could foresee that the evidence would not be connected up, we fail to see any prejudice.   While it is true that in some cases evidence that a defendant possessed deadly weapons may “taint” him in the jury's eyes (e.g., People v. Riser (1956) 47 Cal.2d 566, 577, 305 P.2d 1), here the prosecution failed to connect the gun to Richter;  indeed, his girlfriend did not even pick it up from the store until after the shooting.   We agree with the Attorney General that any error was not prejudicial.

During a tape-recorded interview at the hospital, Johnson told detectives that Richter “talked about buying a gun recently.   A [Sig Sauer] .357, and he said he bought it at a gun shop.”   Richter again claims such evidence was inadmissible and trial counsel should have objected.   We reiterate:  Any error was harmless.

 5. Richter contends his trial counsel should have moved to strike Johnson's testimony that Richter threatened to kill “Aaron Eddie.”   During cross-examination of Johnson, trial counsel asked whether or not Richter was a violent person:

“Q. And you were upset with him because you felt that he spent money on other things rather than pay you [for the psilocybin]?

“A. On one occasion we had an argument.   I didn't hold a grudge.   He came into the house after the argument.

“Q. Did you threaten to do him any physical harm

“A. No, no way.

“Q.-over that?  [¶] And [Richter] never threatened you, did he?

“A. No.

“․

“Q. You never saw [Richter] get violent at any time, did you?

“A. I heard him make threats on someone's life before, and yeah.

“THE COURT:  On your life?

“THE WITNESS:  No, on another individual's life.   He was planning to murder this kid, Aaron Eddie.   He actually told me, ‘Don't tell anybody.’  [¶] That he was going to wait in front of his house and stab him to death.   This was something that he said, and it shocked me because I thought him to be a really peaceful person.

“Q. [Richter's counsel]:  And who's this Aaron person?

“A. It's a guy he got in a fight with.   Actually he got in a fight with at a party, and he, I guess, was really upset because the guy kicked him a few times or something, and there are many people that he told this to besides me.”

Richter contends trial counsel “should never have opened the door to inadmissible character evidence by asking Johnson, a victim of the charged offenses, questions about appellant's character when he was not absolutely certain of the answers.   At a minimum, when Johnson's first answer was nonresponsive, he should have moved to have the answer struck and quickly have moved on to a less risky subject.”

We agree with the Attorney General that there exists a plausible reason for counsel's actions:  To paint [Johnson] as a liar, a braggart who wanted to be seen as a “tough guy,” hence his gun collection which he displayed to visitors, and the fact that he made no secret of his business or the money he carried around in a hip sack-with his .380 pistol.   Probing this alleged threat could confirm Johnson's “hyperbole” as the Attorney General puts it.

Further, Richter concedes this was surprise testimony, but faults trial counsel for continuing to ask questions “when he was not absolutely certain of the answers.”   Unlike an appellate attorney, who has the luxury of leisurely picking through the carcass of the record, a trial attorney must often act on his feet, with only his experience and instinct to guide him.  (See People v. Eckstrom (1974) 43 Cal.App.3d 996, 1000-1003, 118 Cal.Rptr. 391.)   A trial attorney cannot always avoid asking questions to which he does not know the answer.   Issues come up in trials without warning and trial attorneys must move forward as best they can.   Sometimes their effort backfires, but that does not mean they should not have tried.

 6. Richter faults trial counsel for not objecting to the trial court's proposed response to a jury question.   He focuses on one portion of the jury's question in isolation, but when viewed in context we find he has not shown prejudice.

The jury asked two questions on one sheet of paper, as follows:

“Clarification of instructions:

“If a defendant is found guilty of Robbery & Burglary in the first degree, it is our understanding that this necessarily leads to a guilty verdict of murder in the first degree if a human being is killed during the commission of the above Robbery and Burglary.

“Also, if a defendant is found to have aided & abetted in the above Robbery/Burglary, is he guilty of all charges (or can you [sic ] find him guilty of lesser charges) as found for the other defendant.”

The trial court, after consulting with counsel, answered “Yes” to the first question and “The ‘felony murder rule’ applies only to murder, not attempted murder” to the second question.   Thus it appears that the parties and trial court thought the jury was having difficulty in assessing Richter's liability for Johnson's wounding, as opposed to Klein's death.   Recall that Richter's defense was he entered the home after the shooting, thus raising the possibility the jury would find he knowingly aided in Branscombe's planned robbery, by driving the truck.   This is a reasonable construction of the questions.

On appeal Richter faults counsel for not arguing that the court should have told the jury (1) an aider of a robbery or burglary could not be liable for the murder or attempted murder unless those crimes were the “natural and probable consequences” of the robbery or burglary and (2) an aider could be convicted of a lesser offense than the shooter if the charged crimes (murder and attempted murder) were not the natural and probable consequences of the crimes aided.

The authorities relied on by Richter do not deal with the felony-murder rule.   He relies on the rule that an aider is not liable for the nontarget offenses of the perpetrator unless those offenses are the natural and probable consequences of the target offense (see People v. Prettyman (1996) 14 Cal.4th 248, 260-270, 58 Cal.Rptr.2d 827, 926 P.2d 1013), and on People v. Woods (1992) 8 Cal.App.4th 1570, 11 Cal.Rptr.2d 231, which held that where liability depends on the natural and probable consequences doctrine, “the aider and abettor and the perpetrator may have differing degrees of guilt based on the same conduct depending on which of the perpetrator's criminal acts were reasonably foreseeable under the circumstances and which were not.”  (Id. at p. 1587, 11 Cal.Rptr.2d 231, italics omitted.)

It is possible that the trial court and counsel missed the point of the jury's second question.   But the way the jury phrased the question, it was apparently linked to the first question, which focused on the felony-murder rule.   The jury asked about the liability of one who aids “in the above Robbery/Burglary,” meaning a robbery and burglary during the commission of which “a human being is killed” as the first question made clear.   The felony-murder rule renders one who aids a robbery during which a person is killed into a murderer without regard to the “natural and probable consequences” limitation on ordinary aider liability.  (People v. Anderson (1991) 233 Cal.App.3d 1646, 1655, 1658-1659, 285 Cal.Rptr. 523, see People v. Dillon (1983) 34 Cal.3d 441, 477, 194 Cal.Rptr. 390, 668 P.2d 697.)   The correct rule to apply as to aider liability for felony murder is that there is liability for “consequences that are highly probable, conceivably possible, or wholly unforeseeable.”  (Id. at p. 477, 194 Cal.Rptr. 390, 668 P.2d 697, italics added.)   In other words, “in for a dime, in for a dollar.”   Because the phrasing of the jury note indicates it was confused about application of the felony-murder rule, we cannot say that trial counsel must or should have anticipated the jury was confused about the natural and probable consequences doctrine.   The trial court's answer was not incorrect, at worst it did not fully state the rules of aider liability apart from the felony-murder rule.

Although appellate counsel's proposed clarifications of the instructions are arguably correct, we cannot fault trial counsel for perceiving that these were the issues upon which the jury was confused, rather than the distinction between felony murder liability for first degree murder and aider liability for attempted murder.   Further, nothing in the record shows that the jury remained uncertain about the proper rules to apply.   We agree with the Attorney General that the answer was at worst “imprecise.”   Nowhere does Richter explain how this imprecision was likely to confuse the jury on these facts.   He asserts a better answer would have resulted in a better outcome, but he does not explain why this is so.   Assuming he has shown error, he has not shown prejudice.

B.

 Branscombe's claim is that his trial counsel did virtually nothing and thus he was constructively denied counsel.   We disagree.   It is true that Branscombe called no witnesses and made no opening statement.   It is also true that Richter's opening statement suggested Branscombe would testify, but Branscombe did not testify.

Contrary to Branscombe's portrait of the case on appeal, his trial attorney provided an active defense.   He objected to testimony throughout the trial, made several motions, and cross-examined witnesses vigorously.   He delivered a closing argument in which he pointed out inconsistencies in the People's case and cast blame on Johnson for being a drug dealer and wielding a dangerous-looking firearm.   He discussed the People's burden of proof and the various degrees of homicide.   He argued for self-defense.

Nothing on the face of the appellate record supports the claim that Branscombe's counsel did not “test” the People's case.   In particular, appellate counsel repeatedly states or implies that trial counsel erred by not having Branscombe testify.   But trial counsel could not force Branscombe to take the stand.   Branscombe may have simply declined to testify.

Appellate counsel states that trial counsel's “decision to rely on Richter's testimony as the basis for the self defense claim is also troubling,” overlooking the obvious:  Trial counsel may have searched high and low for any other evidence to support the defense, without success.   Failure to find or introduce evidence which does not exist is not incompetence.

Appellate counsel inaccurately asserts that trial counsel “essentially deferred to codefendant's counsel in cross examination and in presenting the defense case[.]”  Trial counsel (1) successfully moved to exclude evidence, (2) successfully moved to suppress statements, (3) made numerous objections, (4) cross-examined most of the witnesses, (5) moved successfully to strike testimony, and (6) had a witness perform a demonstration.

 It may well be that Richter's and Branscombe's trial counsel cooperated and elected Richter's counsel as the “lead,” a common practice which does not, of itself, establish a conflict of interest or that one counsel has abrogated his function.

 In short, where, as here, the appellate record discloses no basis for counsel's actions or inactions, the remedy, if any, must be by way of habeas corpus.  (People v. Pope (1979) 23 Cal.3d 412, 426, 152 Cal.Rptr. 732, 590 P.2d 859, cf. People v. Diggs (1986) 177 Cal.App.3d 958, 223 Cal.Rptr. 361.)

III.-IV.††

The judgments are affirmed.

FOOTNOTES

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

MORRISON, Associate Justice.

DAVIS, Acting P.J., and CALLAHAN, J., concur.