THE PEOPLE v. HOMER DALE LUTTRELL (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendant and appellant, Homer Dale Luttrell, appeals the judgment entered following his conviction, by jury trial, for indecent exposure, with a prior serious felony conviction finding (Pen.Code, §§ 314, 667, subd. (b)-(i)).   Luttrell was sentenced to state prison for a term of four years.

The judgment is affirmed.

FACTUAL BACKGROUND

Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, we find the evidence established the following.

Bisha G. testified she lived in an apartment complex on Electric Lane in Alhambra.   On the evening of Friday, March 18, 2005,¹ she was returning from work.   In order to park her car, Bisha had to go down a driveway past her downstairs neighbor's window.   As she did so, her neighbor's light came on and Bisha saw defendant Luttrell standing at his apartment window either without any clothes on, or wearing only very light-colored underwear.   She did not think anything of it at the time because Luttrell had the right to be naked in his own home.

On Saturday morning, Bisha was leaving to go to work.   She saw Luttrell in the parking lot and they exchanged greetings.   That night, Bisha arrived home from work between 7:30 and 8:00 p.m. As she drove into the parking lot, she saw that Luttrell's car was parked in his wife's parking space adjacent to Bisha's parking space.

Bisha parked.   As she got out of her car, she exchanged greetings with Luttrell and asked about his wife.   Luttrell said his wife was at work.   The door of Luttrell's car was open and Bisha saw him “playing with his penis.”   She testified:  “I saw his hand on his [erect] penis ․ going up and down,” and, “I did not ․ look at his eyes, but I could feel that he was looking at me.”   Bisha quickly went upstairs to her apartment.

She called her husband, who was out of town on a job.   Then she told her father, who was babysitting for her six-month-old, that a neighbor had sexually harassed her.   When her father asked what the neighbor had done, Bisha just said “he did not wear his pants in his car.”   She did not go into any more detail because she didn't want to alarm him.   After her father went home, Bisha walked down to the parking lot to see if Luttrell's wife, Ci, had returned.   Bisha did this “because [Luttrell's] wife is Chinese and we are able to communicate in our own language.   I wanted to ask his wife to tell him not to do such things, because my husband told me ․ this person might want to take action one step further.”   Ci was still gone.

Bisha returned to her apartment.   About 10:00 p.m., she was watching television with her apartment door open, but the iron security door closed.   Luttrell appeared at her apartment door and motioned for her to come outside.   She ignored him and he went back downstairs.   Bisha called her husband again and, because she was home alone with the baby, they decided she should call the police.

On cross-examination, Bisha acknowledged there was a man living with Luttrell and his wife.   However, she knew the person in the window on Friday night had been Luttrell because she saw his face.   The reason she told her father to go home on Saturday night was because she didn't think Luttrell was dangerous at that point:  “I ․ believed that he had a habit of exposing himself․  [A]t the time I did not feel that he was going to use force, or he has that tendency.”   On recross-examination, Bisha testified she did not get scared until Luttrell came up to her apartment door.

Officer Edward Rodriguez testified he responded to Bisha's apartment at 10:30 p.m. on Saturday.   When he first saw her, Bisha was “very emotional” and “shook up, distressed, afraid.”   She described Luttrell masturbating in his car earlier that evening and said he looked directly at her while he was doing it.   She also described how Luttrell later came to her apartment door and motioned for her to come downstairs.

Bisha's husband, Hui Hu, testified he was driving a truck out of state on Saturday when Bisha called to say their neighbor was masturbating in the parking lot.   Hu told Bisha to take pictures if it happened again.   When Bisha called later to say Luttrell had come upstairs and signaled to her, Hu told her to call the police.

The defense did not present any evidence.

PROCEDURAL BACKGROUND

After the jury returned a guilty verdict, but before sentencing, Luttrell told the trial court he did not want to proceed with retained counsel Richard Helphand, because Helphand had been ineffective.   Luttrell said he could not afford to retain new counsel.   The trial court ruled Luttrell had to proceed with Helphand, and then sentenced him to a four-year term.

On remand, the trial court appointed John Borges to represent Luttrell.   Borges filed a new trial motion alleging ineffective assistance of trial counsel because Helphand had not put on any defense evidence.   The trial court denied the new trial motion and again sentenced Luttrell to a four-year prison term.

Luttrell now appeals the denial of his new trial motion.

DISCUSSION

Luttrell contends he was denied effective assistance of counsel because Helphand failed to present promised defense evidence that would have effectively impeached Bisha's credibility and thereby avoided a guilty verdict.   This claim is meritless.

1. Legal principles.

A claim of ineffective assistance of counsel has two components:  “ ‘First, the defendant must show that counsel's performance was deficient.   This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.   Second, the defendant must show that the deficient performance prejudiced the defense.   This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’   [Citation.]  To establish ineffectiveness, a ‘defendant must show that counsel's representation fell below an objective standard of reasonableness.’   [Citation.]  To establish prejudice he ‘must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.   A reasonable probability is a probability sufficient to undermine confidence in the outcome.’  [Citation.]”  (Williams v. Taylor (2000) 529 U.S. 362, 390-391.)  “[T]he burden of proof that the defendant must meet in order to establish his entitlement to relief on an ineffective-assistance claim is preponderance of the evidence.”  (People v. Ledesma (1987) 43 Cal.3d 171, 218.)

“[I]f the record sheds no light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for an explanation and failed to provide one, or there could be no satisfactory explanation for counsel's performance.  [Citation.]”  (People v. Castillo (1997) 16 Cal.4th 1009, 1015.)  “Where the record shows that the omission or error resulted from an informed tactical choice within the range of reasonable competence, we have held that the conviction should be affirmed.”  (People v. Bunyard (1988) 45 Cal.3d 1189, 1215;  see People v. Mitcham (1992) 1 Cal.4th 1027, 1059 [decision whether to put on witnesses is matter[ ] of trial tactics and strategy which a reviewing court generally may not second-guess].)  “[T]he choice of which, and how many, of potential witnesses [to call] is precisely the type of choice which should not be subject to review by an appellate court.  (People v. Floyd (1970) 1 Cal.3d 694, 709, disapproved on other grounds by People v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 36.)

“Making promises about the defense evidence in opening statement and then failing to deliver does not constitute ineffective assistance per se.”   (People v. Burnett (2003) 110 Cal.App.4th 868, 885.)  “Whether the failure to produce a promised witness amounts to ineffective assistance of counsel is a fact-based determination that must be assessed on a case-by-case basis.   [Citation.]  Forgoing the presentation of testimony or evidence promised in an opening statement can be a reasonable tactical decision, depending on the circumstances of the case.  [Citations.]”  (People v. Stanley (2006) 39 Cal.4th 913, 955.)

2. Discussion.

In his opening statement, Helphand told the jury there would be evidence contradicting Bisha's testimony she saw Luttrell naked or nearly naked through his apartment window on Friday night.   Helphand said Luttrell and his wife were eating dinner in a restaurant in another town 25 minutes away at the time Bisha allegedly saw Luttrell.   Helphand also said there had been another man living with Luttrell and his wife at the time.   Finally, Helphand told the jury the evidence would show Luttrell was working on his car CD player Saturday night, that he was wearing tight plastic gloves because he didn't want to get his hands dirty, that he said hello when Bisha parked next to him, but that nothing else happened.

The new trial motion Luttrell filed after new counsel was appointed contained the following declarations:

Cheun Kang, manager of the Zen Buffet restaurant in Temple City, described how customer receipts were prepared.   A receipt for Friday night, March 18, indicated two people had come in for the adult buffet at 6:51 p.m., and finished eating at approximately 8:07 p.m.

Chun Ci Luttrell stated she and her husband left their apartment about 5:30 p.m. on Friday, March 18, shopped at two stores, and then drove to the Zen Buffet restaurant in Temple City. Ci stated, “We arrived there between 6:30 p.m. and 7:00 p.m. We ate dinner and left the restaurant around 8:30 p.m. We arrived home around 9:00 p.m.”

Manjiang Ye stated he had been living with the Luttrells on March 19.   About 6:30 p.m. that day, he left the apartment to go to work.   He saw Luttrell's car in his wife's parking space.   Luttrell, who was sitting in the driver's seat, said he was fixing his CD player.   Ye said Luttrell “was wearing white plastic gloves and as far as I can recall, he was fully clothed․  [H]e had a small tan colored blanket on his lap with small parts of the C.D. player on it along with tools.”

Glen Rodney Guillen stated:  “I don't recall the date of this incident, but I remember going outside to throw the trash out in the evening when it was dark.   I don't remember the time.   I saw [Luttrell] sitting in the drivers seat with [the] door open and the dome light on.   I could see that he was working on something like he usually does.”

Based on these declarations, Luttrell argues:  “With respect to the evidence challenging the veracity of what Bisha testified she observed on Friday ․ and Saturday, ․ the trial record contains no indication of any unforeseen event that would affect the presentation thereof, either tactically or otherwise․  [T]here is no question that Mr. Helphand was derelict in his representation of appellant by making an unfulfilled promise during opening statement that this evidence was forthcoming.  [¶] It is also evident that it is reasonably probable that a more favorable result would have occurred absent Helphand's broken promise to the jury.   Helphand's defense theory was that Bisha was creating out of whole cloth a situation that would cause her husband to quit his job as an interstate trucker and find work that would bring him home every night.   Given that Bisha was the sole witness to the events in question and did not report the masturbation exposure to the police immediately, there was no question that this defense theory had at least a modicum of merit.”

Luttrell is wrong when he asserts there was no unforeseen event possibly affecting the promised evidence.   Luttrell's wife, Ci, would clearly have given the most crucial exculpatory testimony and, as to her, a very important unforeseen event did occur.

Trial started on the morning of June 2, 2006, with opening statements and the first part of Bisha's testimony.   In the afternoon, the prosecutor told the trial court that Bisha reported Ci had “stopped her at the apartment complex [and] confronted her about [her] testimony.”   Ci “confronted [Bisha,] telling her that she must be wrong and it could not have happened.   She went through the facts of the case including some defenses and ․ encouraged [Bisha] to reconsider her testimony.   As the court's aware there is a restraining order in this case, and that does apply to third parties.  [¶] The People are very concerned about witness tampering and intimidation․ “

Ci was brought into the courtroom and the judge told her, “I'm ordering ․ that you not have any contact whatsoever with Bisha ․, any of her family members, any other witnesses, or potential witnesses in this case, or any members of the jury in this case.”

Ci's interaction with Bisha was an unforeseen event which seriously compromised Ci's credibility and gave Helphand a legitimate reason for not calling her as a witness.   Without Ci's testimony, the other evidence attached to the new trial motion was entirely insubstantial.

Regarding the events of Friday night, the mere fact another man was living in the apartment who, theoretically, could have been the person Bisha saw in the window is almost valueless.   Ye's declaration did not even say he was home at that time.   Without Ci's testimony, the Zen Buffet alibi falls apart.   According to the customer receipt, the meal was paid for in cash, which means there is no credit card information linking the receipt to the Luttrells.   Luttrell's testimony by itself could have been seen as too obviously self-serving, and he could have been impeached with his prior felony conviction.   As for Saturday night, Guillen's declaration, that he saw Luttrell sitting in his car was almost worthless because he could not even remember the date, let alone the time, this happened.   Ye's declaration about seeing Luttrell in the parking lot had the day right, but his timing was off by 60 to 90 minutes and, therefore, was not inconsistent with Bisha's testimony.   Hence, the defense version of what happened Saturday night would have had to come from Luttrell himself.

Two further points.   It appears from the record that the theory Bisha had an ulterior motive for fabricating her testimony, i.e., to get her husband to quit his job, would have been based solely on Ci's testimony.   Also attached to the new trial motion were medical records purportedly establishing a defense that Luttrell could not have had an erection because he suffered from erectile dysfunction.   Helphand made no mention of this defense during his opening statement.   In any event, when the trial court gave Luttrell an opportunity during the new trial motion proceeding to produce medical evidence to prove this defense, he could not do so.

We conclude the trial court did not err in denying Luttrell's new trial motion because defense counsel did not render ineffective assistance by failing to produce evidence promised during the opening statement.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further calendar references are to the year 2005 unless otherwise specified..  FN1. All further calendar references are to the year 2005 unless otherwise specified.

CROSKEY, J. ALDRICH, J.