Opinion
C092373
11-09-2021
THE PEOPLE, Plaintiff and Respondent, v. LLOYD BRICE, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. STKCRFE20170011495
ROBIE, ACTING P. J.
A jury found defendant Lloyd Brice guilty of first degree murder in the shooting death of Curnlee Howell. On appeal, defendant contends the trial court erred by denying his successive motions for a new trial. Defendant was represented at trial by Michael Platt who had previously represented Morris J., the prosecution's sole eyewitness to defendant shooting at Howell. In the first motion, defendant contended that Platt had an unwaivable conflict of interest that adversely affected his performance at trial. The second motion claimed ineffective assistance of counsel primarily because Platt failed to present a self-defense theory at trial. Defendant further contends on appeal that there was insufficient evidence of deliberation and premeditation for a first degree murder conviction.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A
Motion To Disqualify Defense Counsel
On May 25, 2018, the prosecutor filed a motion to disqualify Platt for conflict of interest. The motion stated that the prosecution intended to call Morris and Morris's former girlfriend Ashley J. in defendant's trial and that defendant's current counsel, Platt, had previously represented Morris and Ashley. The prosecution requested the "Court inquire into the potential conflict of interest caused by Platt's current representation of [defendant] and his former representation of both Morris and Ashley . . . ." The motion set forth several criminal cases from 2009 to 2016 in which Platt had represented Morris, as well as Platt's representation of Ashley in 2017 regarding charges stemming from a gang investigation.
At the time the prosecutor filed the motion, defendant and Ashley had both executed written waivers that stated: "Client acknowledges that his attorney, MICHAEL E. PLATT, Esq. has informed him or her concerning Rules of Professional Conduct, Rule 3-310(F). Client specifically waives (gives up) any conflict of interest there may be in this matter. Client has been informed that he or she have the ability to speak with another attorney as it relates to this waiver."
In opposition, Platt contended there was no conflict of interest because there was no substantial relationship between the subjects of Platt's prior representation of Morris or Ashley and Platt's current representation of defendant. Platt specifically argued that the prosecution had not shown that confidential information material to Platt's current representation of defendant would have been imparted in Platt's former representation of Morris.
At the hearing on the motion, the court asked the prosecutor about Morris's prior cases in which he was represented by Platt. The court also asked the prosecutor about Morris's plea agreement in defendant's case, in which Morris agreed to testify as an eyewitness against defendant in exchange for the reduction of Ashley's charge to a misdemeanor. The court also asked about evidence of a wiretapped telephone call between Morris and Ashley. The prosecutor proffered that Platt represented Ashley on the charge but explained she did not receive a plea agreement to testify in the case against defendant, only Morris did.
Judge Michael J. Mulvihill, Jr., heard and ruled on the disqualification motion and Judge Seth R. Hoyt, Jr., presided over the trial.
Platt did not argue the motion. The trial court asked the attorney who did, David Wellenbrook, whether Platt would be in an "awkward position" to cross-examine Morris, who Platt had represented in numerous criminal felony cases and was the "key eyewitness" against defendant, since Platt would have to hold back all of Morris's confidential information. The court repeatedly asked whether Platt could effectively cross-examine Morris about criminal cases in which Platt represented Morris. The court expressed concern that Morris could not waive this conflict, and if convicted, defendant would base an appeal on ineffective assistance of counsel based on Platt's conflict.
The court questioned Platt about the timing of his representation of Ashley. Platt stated he did not discuss Ashley's misdemeanor charge or Morris's agreement to testify with the prosecutor. He claimed to further not know Morris was the eyewitness against defendant at the time of Ashley's plea, a statement the prosecutor disputed.
The prosecutor also confirmed Platt had formerly represented defendant in other matters, but agreed there was no concurrent representation of Morris and defendant. Wellenbrook argued defendant was a long-standing client of Platt and had a right to select him as counsel.
The court also asked defendant whether he wanted Platt to represent him. Defendant responded, "Absolutely." Defendant confirmed his understanding that Platt might not be able to fully cross-examine Morris or Ashley because of his prior representation of them. Defendant also stated he was willing to waive the conflict issue on appeal.
At a later hearing, defendant was represented by independent counsel appointed by the trial court, Mark Sullivan. Sullivan stated he spoke to Platt and the prosecutor, reviewed the prosecution's motion and Platt's opposition, was informed of the content of the previous hearing, conducted legal research, and interviewed defendant. Sullivan expressed concern about the sufficiency of the written waiver defendant had signed. Sullivan stated that a waiver should identify the former client at issue, explain the facts creating the conflict, and how the conflict could impact defendant's representation.
In response to the court's inquiry, Sullivan confirmed he had discussed with defendant: (1) Platt's prior representation of Ashley and Morris's agreement to testify if Ashley's charge were reduced to a misdemeanor; (2) that Platt could lose credibility with jurors who learned Platt had negotiated a plea for a witness testifying against defendant; (3) potential issues regarding impeachment of Morris with his prior convictions; (4) the fact that unforeseeable conflicts might arise during the trial; and (5) Platt's duty of confidentiality to Morris. Sullivan stated defendant understood the conflicts they discussed and that Sullivan advised defendant regarding both sides of the issue. Lastly, Sullivan confirmed he discussed with defendant that Platt might have to withdraw as counsel during trial, which could lead to a significant delay in the trial. Defendant agreed that Sullivan discussed these topics and confirmed his understanding that by signing a conflict waiver he would also waive an ineffective assistance of counsel claim on appeal.
Sullivan advised the court that both Morris and defendant should execute a conflict waiver. The court inquired whether any of Morris's prior crimes involved moral turpitude, such that if the defense intended to impeach Morris with these crimes, there should be a waiver of the conflict from Morris. Wellenbrook argued that a waiver from Morris was not needed.
Defendant disputes Wellenbrook's statement that a waiver from Morris was not required, citing State Bar Rules of Professional Conduct, rule 1.7(b), which provides: "A lawyer shall not, without informed written consent from each affected client and compliance with paragraph (d), represent a client if there is a significant risk the lawyer's representation of the client will be materially limited by the lawyer's responsibilities to or relationships with another client, a former client or a third person, or by the lawyer's own interests." We agree with the People that a waiver from Morris was not required under this rule because "only [defendant] faced the risk that Platt's representation would be 'materially limited' by his former representation of [Morris]."
Sullivan confirmed that he had taken a written waiver to defendant in custody and reviewed it with him. Wellenbrook confirmed that defendant understood Ashley would be a witness against defendant and defendant did not plan to implicate Morris in the crime.
An unsigned copy of the waiver is in the record. It reads in relevant part: "Defendant has been advised of his rights and all potential issues by Court-appointed attorney Mark Sullivan, Esq. Specifically, Defendant has been advised that his attorney has previously represented both Morris . . . and Ashley . . ., several [sic] potential witnesses for the People. Defendant has been advised that Morris . . . has signed an agreement to testify against Defendant that, in part, provides as consideration for his cooperation a benefit to Ashley . . ., who was represented by Mr. Platt at the time. [¶] Defendant has been advised that because of his attorney's prior representation of Morris . . . and Ashley . . . and his ongoing duties of loyalty and confidentiality to those former clients, his attorney may be limited in his cross-examination of those witnesses in ways that other attorneys might not be. With full knowledge of these facts and the potential risks associated with them, Defendant freely and voluntarily waives his right to conflict-free counsel and wishes to proceed with Mr. Platt as his retained attorney."
The court reiterated that defendant risked Platt losing credibility with the jury because he advised his former client Morris to plead guilty to crimes and now would be using those convictions to claim that Morris was lying. Defendant confirmed for the court that he was willing to take that risk.
Platt stated he had discussed with defendant that Platt was limited in terms of how vigorously he could attack Morris's credibility based on his prior convictions. Platt stated that defendant "is prepared, as we discussed the other day, to waive any appellate issue related to any issue of conflict and waving [sic] it at this stage so that he can go forward and get his trial had, because you still have to get a conviction before you get an appeal on the issue." Defendant confirmed to the court that he was willing to waive any appellate conflict issues. Finally, Platt confirmed to the court, regarding Ashley and Morris, that he could not foresee, and would guarantee to the court, that no confidences from their representation would be revealed in the present case.
The court expressed its view that, "while Mr. Platt may be able to do this, it does smell wrong," and "gives a horrible impression of our legal system" for Platt to represent a former client in pleading to a crime of moral turpitude, and then represent a current client against whom the former client will testify, while also formerly representing another client on a plea deal, who got her deal in exchange for the former client testifying against the current client. The court continued: "While I have the utmost respect for all the attorneys here and I don't think in any way the word I'm about to describe depicts any of [them], but if one were to look from the outside, people would be distrusting of this whole system, they'd think it looks sleazy. [¶] But, nevertheless, given Mr. Platt's assurances that no confidential information, directly or indirectly, will be made available, given [defendant's] waiver today and his desire to have Mr. Platt as his attorney, and the fact there's no case that directs the Court directly on point, I'm denying the DA's motion."
B
Trial
1
Prosecution's Case
The night of September 4, 2013, Kevin N. was watching a dice game with about 20 people. Curnlee Howell was standing near him. Kevin and Howell did not say anything to each other. At some point, Kevin saw people start to move and within seconds he heard five to seven gunshots. Kevin began to run and realized he had been shot in the leg. Kevin eventually went to the hospital.
Kevin denied that, as stated in the medical records, he said he was in a fight with another person, guns were drawn, shots rang out, and his opponent fell to the ground. Kevin told police at the hospital that he did not know who shot him and that Howell did not shoot him. Kevin testified he did not see Howell or anyone else with a gun that night and did not know who was shooting. Kevin also testified defendant was not at the dice game and did not shoot him. Kevin further testified he did not see Morris at the dice game either.
Kevin also testified about an incident two years prior in which he was at club with defendant, his good friend, and Howell was also there. While at the club, Howell disrespected Kevin's sister and Kevin struck Howell in the face, breaking his eye socket. Morris was also at the club that night but did not see the fight. Morris did see an unconscious Howell after the fight and helped him. Morris knew Kevin and defendant were associates.
Morris testified that, on September 4, 2013, he was coming and going from the area of the dice game for several hours throughout the night. He saw people, including Howell and Kevin, getting together. At the time of the shooting, Morris was down the street from the dice game where Howell was and in front of N. H.'s house. Throughout the day, Morris saw N. H. and others playing dice and generally hanging out in the area. Morris, who had been drinking and smoking marijuana, heard a shot, which drew his attention. Morris saw defendant facing Howell and firing a weapon at Howell. Morris could see the muzzle flash from a handgun defendant was holding with both hands. Morris ran up a driveway behind a waist-high fence and saw Kevin flee to the end of the street. Morris did not see Kevin with a gun and did not himself possess a gun.
Morris first testified he did not see any shots fired after the second shot. Questioned again, Morris testified, "Oh, yeah. It was about eight gun shots."
During the gunfire, Morris saw an unarmed Howell running toward the shooting. After the last shot, defendant ran and Howell was on the ground. There was a lot of blood and people were helping Howell. Soon after, Morris saw defendant and Maurice M. in defendant's car.
Upon a search of the scene, police officers found three ten-millimeter shell casings near a car, as well as a pool of fresh blood, $10 and $20 bills with blood on them, and a set of dice. A .45-caliber casing and two .45-caliber bullets were also recovered. No firearms were found. People questioned by police at the scene were not cooperative and did not provide information about what had happened.
On September 4, 2013, both Howell's sister and the mother of his children went to the hospital and saw Howell. Maurice M. also came to the hospital and asked if Howell had died. The mother of Howell's children told Maurice M. he should not be there. Morris saw Howell both in the hospital and upon his release. Howell was staying at a hotel because he was afraid to go to his house. Morris told Howell that defendant shot him and Howell said," 'Yes, I already know that.'" Howell did not want to cooperate with police.
Morris also saw defendant after Howell got out of the hospital. Morris testified that, when referencing the night of the shooting, defendant explained, "Kev was his friend." Morris understood defendant to mean that "[w]hatever [defendant] did was cause of Kev" and that defendant believed Howell shot Kevin. On September 27, 2013, Howell died.
Howell's autopsy revealed he died from a large blood clot in his leg that traveled to his lungs, causing heart failure and the inability to breathe. The blood clot was in his leg because he had been shot several times and was unable to walk during his recovery. Howell would not have died if he had not received multiple gunshot wounds.
In early 2017, Morris was at a bar where defendant was present. Morris said he did not want to hang out with defendant and a mutual friend told defendant. Afterwards, someone alerted Morris to a Snapchat video posted by defendant that referenced Morris. That video, along with other Snapchat videos were played for the jury. In one video, defendant said something about "sneak dissing," which Morris understood to refer to Morris telling their mutual friend that Morris did not want to hang out with defendant, which amounted to disrespect. In another video, defendant said, "You know I keep it on me," which Morris understood defendant to mean he keeps a gun on him. In another video, defendant said, "Your momma's in danger. If you live in my neighborhood, you're in danger," which Morris understood defendant to refer to Morris and his mother. In a fourth video, defendant said, "I've been blowing [N-word], and I will blow you," which Morris understood to mean defendant had been shooting people and would shoot Morris. Morris understood another statement by defendant to mean that people were not being shot because defendant said not to shoot them. In yet another video, defendant said, "If I was tripping, you would be in trouble," which Morris understood to mean that, if defendant was upset, Morris would be shot.
Morris called his then-girlfriend, Ashley, to tell her about the Snapchat videos because he feared for her safety. During their conversation, Morris referred to defendant as the "guy that [sic] killed Curn" and expressed concern for his mother. Morris told Ashley he was personally not worried, because "I don't think he's gonna do nothing to me. I ain't scared of him. When that shit happened with Curn he was calling around so much trying to get a hold of me. I told him, you know, you know what I'm saying, circumstances occurred damn near made you do that, but, it's like somebody trying to kill my friend in front of me, you know what I'm saying, it's just, the shit happened the way it happened, you know, I just, whatever, but. The [N-word] really scary."
The transcript of the call was admitted as evidence.
At the time of that call, Morris's mother lived in south Stockton and defendant lived two streets away. Morris confirmed at trial that he put security cameras around his mother's house. Morris also confirmed that he had been afraid for his family, and that his fear had increased now that he had testified against defendant.
A police officer testified that Morris was a documented member of the North Side Gangsta Crips criminal street gang. In 2017, Morris's phone was tapped as part of an investigation into the gang. As a result of the investigation, Morris and Ashley were arrested in 2017. Morris thereafter signed a plea agreement agreeing to testify in exchange for a reduction of his sentence and a reduction of the charge against Ashley to a misdemeanor. Morris was facing a maximum sentence of 16 to 18 years in state prison, which was reduced to three years for his cooperation. The agreement also called for the prosecution to make reasonable efforts to secure the safety of Morris's family, including assistance with relocation. The plea agreement was posted by someone on social media, which Morris understood was done to target him for cooperating with the police. Morris testified he did not tell police he had seen defendant shoot Howell despite having been arrested several times after Howell's death. Morris testified he kept the information to himself because defendant was threatening Morris's mother. He decided to cooperate to help Ashley because he felt responsible for getting her in trouble. On cross-examination by Platt, Morris admitted that, after he was arrested in April 2017, he told law enforcement officials multiple times that he would tell them anything if they would let Ashley go.
Other than his 2017 arrest, Morris testified he had multiple convictions from 2007 to 2015 for carrying a loaded firearm in public, giving false information to police, possessing marijuana for sale, carrying a loaded concealed weapon, and fleeing the police in a vehicle.
On cross-examination, Platt asked Morris the number of his felony convictions, and Morris answered: "Two off the top of my head. Maybe three. They were recited earlier in the trial. Not sure off the top of my head, but two or three." Morris confirmed he was referring to the convictions the prosecutor asked about. Platt asked: "Sound[s] more like there were six. Yes or no?" Morris responded, "No, sir."
Stephen Taylor also cross-examined Morris on behalf of the defense. Morris testified there were two meetings with prosecutors that led to his plea agreement. The first meeting was largely consumed with Morris demanding that Ashley not be charged or that her charges be reduced. After the second meeting, Morris wrote a letter stating, "I will help you in your case against [defendant] and testify; I feel it's the right thing to do for my friend [Howell]. It will be a step in the right direction in changing my life and get some one [sic] off the street who has committed multiple murders, no one ever wants to speak out or testify against him because he will harm you and the people you love." Morris asked the prosecutor to sentence him to a reduced term of three years for his charges instead of the four years the prosecution proposed. Morris acknowledged the hours police had devoted to the investigation, but "I feel and you and your officers should also [feel] that me being out one 1yr. earlier to make sure [defendant] goes away for a long time makes this community a whole lot safer, and is a small sacrifice to make."
During Platt's cross-examination of Morris, Morris testified he offered to help the prosecutor in defendant's case because it was the right thing to do for Howell. Morris testified he did not go to the police in 2013 because he was afraid for his safety, and that nothing had happened before 2017 to indicate Morris's life would be in danger if he cooperated with police. Pressed about specific incidents indicating Morris was in danger because he cooperated with police, Morris testified a friend of his had told Morris she was threatened by defendant's brother in August or September 2017 for coming to visit Morris in prison and reported it to police to make a record. Morris also testified that people were giving "dirty looks" to his sister at her job, but no police report was made.
Morris testified he offered to provide the prosecutor information about other murders he heard defendant had committed. He did not provide names of the other victims nor witness any of the alleged murders. After asked about the proof or evidence he had that defendant murdered other people, Morris testified, "I don't need concrete evidence to feel how I feel about somebody."
Platt's cross-examination of Morris continued for more than a hundred pages of trial transcript. Platt questioned Morris about: the reduction of Morris's potential 18-year sentence in the plea deal; individuals who could verify that Morris was present at the time of the shooting; Morris's drug use; Morris's false statements to officers after his April 2017 arrest; Morris's admission in the plea agreement to actions benefiting the North Side Gangsta Crips; Morris's transporting and selling drugs; Morris's admission to illegal possession of a firearm by a felon; the failure of defendant to mention Morris's name in defendant's Snapchat videos; Morris's association with members of the North Side Gangsta Crips; Morris's location during the shooting; the circumstances of Morris's visit with Howell in the hospital; the number of shots Morris saw on September 4; the altercation between Kevin and Howell; Morris's telling his sister that he saw Howell get shot; Howell's funeral; Morris's failure to tell police that he saw defendant at Howell's funeral; Morris's lack of personal knowledge about bad acts by defendant; the importance to Morris of keeping Ashley out of jail.
Sometime between April 2 and August 23, 2017, a Snapchat account affiliated with a member of the North Side Gangsta Crips had posted on it a message providing: " '[Morris] is a rat. They offered him some time and he told them everything he no [sic] . . . . But he's in the pods chilling lol with the rest of the rats.'" Morris was in county jail at the time of the Snapchat post.
An audio recording of defendant speaking to a female friend was played for the jury. In the recording defendant said, "[M]an the facts is gonna come out, fucking [Howell] didn't die at the scene, he didn't die in the hospital, that . . . shit don't got nothing to do with me . . . ."
2
Defendant's Case
Ashley testified that between September 4, 2013 and April 2017, Morris did not tell her he was an eyewitness to the shooting death of Howell. Ashley further testified she did not know Howell, nor did she ever meet him or see him with Morris.
Ashley testified that after she was arrested, Morris did not tell her he was trying to get her case dismissed or reduced to a misdemeanor. Platt represented Ashley after the matter had been worked out with the prosecutor. Ashley did not know defendant, nor had Morris ever talked about him.
When Ashley was interrogated by the prosecutor, she said she did not know who killed Howell, and that Morris had never told her defendant had killed Howell. After Ashley was jailed, she called Morris, who was out of custody, and he told her for the first time that defendant had killed Howell. Morris did not say he saw the shooting.
Morris had talked to Ashley about getting security cameras for his mother's house. Morris talked about defendant making threats about Morris's family on Snapchat.
On re-direct, Ashley testified from September 4, 2013 to April 2017, Morris never showed signs that he was afraid of defendant or anybody else. Morris carried a gun for protection but never told Ashley it was for protection against defendant.
Morris testified he was not and had never been a gang member. Morris confirmed he never told Ashley he was an eyewitness to the shooting of Howell because he did not want to involve her in "street stuff." Morris also confirmed he never told Ashley he was trying to help her because Platt told her not to speak to him.
An ex-girlfriend of both Morris's and defendant's testified. She said she had previously broken up with Morris to be with defendant, which upset Morris. In her opinion and based on living with Morris for a year, Morris was a gang member and probably a leader. When living with Morris, he always had a lot of guns with him. After Howell's death, she often saw Morris with defendant and they appeared to be friendly.
Several people who Morris said were present the night of the shooting testified. They said they were at the location of the shooting at the time of the shooting; however, they testified they did not see or hear a shooting and did not see Morris. Other witnesses admitted to seeing a shooting, but not to seeing Morris there.
The mother of Howell's children testified that after returning home from the hospital the night Howell was shot, her front door was kicked in and her house had been burglarized. She further testified that she took care of Howell in a motel room after Howell had been released from the hospital. Morris never visited them at the hotel.
C
Verdict
The jury found defendant guilty of first degree murder of Howell and found true the allegation that defendant personally used a firearm to murder Howell.
D
Motions For New Trial
On August 14, 2018, Platt moved to withdraw as attorney for defendant based on defendant's failure to cooperate or communicate with Platt. On August 20, 2018, Platt was relieved as attorney for defendant and Anne C. Beles was retained.
1
Motion Based On Platt's Conflict Of Interest
On February 25, 2019, defendant filed a motion for new trial under Penal Codesection 1181. Defendant argued he was denied his right to counsel when Taylor cross-examined Morris about Morris's handwritten letter to the prosecutor referring to defendant committing other murders. Defendant argued that Platt compounded the error in cross-examining Morris about defendant's involvement in an uncharged shooting, his attempts to dissuade witnesses by threatening Morris's family, and Howell's identification of defendant as the assailant. Defendant further contended he was entitled to a new trial because of Platt's prior representation of Morris and Ashley and the lack of a valid conflict of interest waiver.
Further section references are to the Penal Code unless otherwise indicated.
In ruling on the motion, the trial judge observed that his recollection of the trial was that the key evidence was not Morris's letter but (1) the wiretapped telephone call in which Morris said defendant killed Howell, and (2) the Snapchat videos where defendant made threats. The court said, "I don't feel like the letter -- that this case turned on that particular letter." The court reasoned that the defense introduced the letter to impeach Morris to show that he was willing to say whatever it took to get a deal, which was followed by cross-examination by two attorneys who went after Morris over a period of a number days "vigorously, zealously." The court said, "I certainly didn't see any punches being held or not fighting for [defendant] by Mr. Platt as far as going after . . . Morris."
The court acknowledged that some attorneys might not have introduced the letter, but found it difficult to determine whether the jury believed defendant committed other murders. The jury could equally believe that Morris was "blowing smoke," and that was the reason for using the letter. The court observed that Platt's "tactic was to discredit Morris . . . . What the People had going for them is that they had the phone call obtained on a wiretap prior to Morris . . . ever being arrested for what he eventually cut a deal on, and that was the basis of their case. Mr. Platt, I thought, did a good job of discrediting Morris . . . . But . . . Morris was also a credible witness. And that phone call was made to his girlfriend prior to law enforcement ever being involved."
The court also acknowledged that, as the judge who denied the disqualification motion commented, "it could have an appearance from the outside looking in of this appearing sleazy. But [the judge] bent over backwards. Went through everything with [defendant]. He appointed Mr. Sullivan. Mr. Sullivan advised [defendant]. Went over a number of things before denying the motion to conflict Mr. Platt out." The court concluded "I do find that this was a valid waiver that [defendant] made, and Mr. Platt was not ineffective."
2
Motion Based On Ineffective Assistance Of Counsel
On July 13, 2020, defendant filed a second motion for a new trial. Defendant stated that after the first motion for a new trial was denied, the prosecutor met with Kevin who recanted his trial testimony and stated that defendant acted in self-defense when he shot Howell, who fired first at Kevin. A defense investigator subsequently met with four additional witnesses who corroborated Kevin's statement that Howell fired first at Kevin and defendant acted in self-defense. Defendant attached the investigator's reports of witness interviews and Kevin's statement to the prosecutor to his motion. In the motion, defendant contended he was entitled to a new trial because: (1) Platt provided ineffective assistance of counsel by electing to present an identity defense and failing to investigate a self-defense theory, and (2) information provided by these new witnesses showed defendant acted in self-defense.
The prosecutor filed an opposition to defendant's second motion for a new trial, attaching statements from several witnesses interviewed by Platt's investigator.
On July 13, 2020, the trial court held a hearing on the motion for new trial. The court observed that when defendant was arrested in Spokane, Washington, and interviewed by officers, he denied being in California at the time of the shooting. Platt's investigator interviewed more than a dozen witnesses who said defendant was not there. The court noted that there were "two sets of shell casings" at the scene, which "indicates two different shooters." "But with [defendant's] statement and the investigation pointing towards he wasn't there, how is Mr. Platt supposed to go to a self-defense claim?" Defense counsel responded that both an identity and self-defense claim could have been presented and "what is right is allowing a man to have a trial that gives him his defense, [as to] which we now have a number of witnesses."
The court denied the motion. The court said that it was a matter of trial tactics for Platt to go with the strongest defense of identity, which might be diminished if Platt also pursued a self-defense theory, and "now the jury thinks you might be talking out of both sides of your mouth." The court noted that in Kevin's statement recanting his trial testimony, which was the impetus for the second motion for a new trial, Kevin continued to say that he did not see defendant shoot Howell, so the statement was "very serving to [defendant] [and Kevin] and [defendant] have been lifelong friends." The court found that there was a reasonable investigation, "[n]umerous witnesses were interviewed, even as we got closer to trial and even during trial." Defendant was shown on social media "intimidating witnesses" and "[s]howing a gun." Morris's plea agreement was posted on social media and "Mr. Morris is now dead." The court suggested that defendant's argument Platt should have known it was more prudent to try the case on a self-defense theory was "Monday morning quarterbacking." The court found that neither Mr. Platt nor his investigation was deficient. The court further found that in the event of a new trial the outcome would not change.
E
Sentence
The trial court sentenced defendant to 25 years to life for murder in the first degree and to a consecutive 25 years to life for the associated firearm enhancement. The court further sentenced defendant to the upper term of three years for being a felon in possession of a firearm, to be served prior to the sentence on the murder charge.
DISCUSSION
I
Conflict Of Interest
Defendant contends the trial court erred by denying his motion for a new trial based on Platt's conflict of interest. He maintains that Platt's prior representation of Ashley and Morris was an actual conflict that adversely affected Platt's performance at trial and the conflict was unwaivable. We disagree.
"A criminal defendant is guaranteed the right to the assistance of counsel by the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution. This constitutional right includes the correlative right to representation free from any conflict of interest that undermines counsel's loyalty to his or her client. [Citations.] 'It has long been held that under both Constitutions, a defendant is deprived of his or her constitutional right to the assistance of counsel in certain circumstances when, despite the physical presence of a defense attorney at trial, that attorney labored under a conflict of interest that compromised his or her loyalty to the defendant.' [Citation.] 'As a general proposition, such conflicts "embrace all situations in which an attorney's loyalty to, or efforts on behalf of, a client are threatened by his responsibilities to another client or a third person or his own interests." '" (People v. Doolin (2009) 45 Cal.4th 390, 417.)
"[C]laims of Sixth Amendment violation based on conflicts of interest are a category of ineffective assistance of counsel claims that . . . generally require a defendant to show (1) counsel's deficient performance, and (2) a reasonable probability that, absent counsel's deficiencies, the result of the proceeding would have been different. [Citation.] In the context of a conflict of interest claim, deficient performance is demonstrated by a showing that defense counsel labored under an actual conflict of interest 'that affected counsel's performance -- as opposed to a mere theoretical division of loyalties.' [Citations.] '[I]nquiry into actual conflict [does not require] something separate and apart from adverse effect.' [Citation.] 'An "actual conflict," for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel's performance.'" (People v. Doolin, supra, 45 Cal.4th at pp. 417-418.)
"[A] determination of whether counsel's performance was 'adversely affected' under the federal standard 'requires an inquiry into whether counsel "pulled his punches," i.e., whether counsel failed to represent defendant as vigorously as he might have, had there been no conflict. [Citation.] In undertaking such an inquiry, we are . . . bound by the record. But where a conflict of interest causes an attorney not to do something, the record may not reflect such an omission. We must therefore examine the record to determine (i) whether arguments or actions omitted would likely have been made by counsel who did not have a conflict of interest, and (ii) whether there may have been a tactical reason (other than the asserted conflict of interest) that might have caused any such omission.'" (People v. Doolin, supra, 45 Cal.4th at p. 418; see also People v. Woodruff (2018) 5 Cal.5th 697, 739.)
A defendant may apply for new trial under section 1181 when a verdict is rendered or a finding made against him under specified circumstances. (§ 1181.) "Although ineffective assistance of counsel is not among the grounds enumerated for ordering a new trial under Penal Code 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.)" 'On appeal, a trial court's ruling on a motion for new trial is reviewed under a deferential abuse of discretion standard. [Citation.] Its ruling will not be disturbed unless defendant establishes "a 'manifest and unmistakable abuse of discretion.'" '" (People v. Jimenez (2019) 32 Cal.App.5th 409, 423.)
Here, the record does not indicate that Platt pulled his punches in cross-examining Morris. As the trial judge observed and as we discussed above, defense counsel vigorously cross-examined Morris over several days covering over many, many pages of trial transcript, attacking his credibility on multiple fronts. (See People v. Woodruff, supra, 5 Cal.5th at p. 740.)
Defendant, however, argues that the defense, not the prosecution, introduced the handwritten letter Morris sent to the prosecutor to obtain a plea agreement, which included a reference to defendant committing multiple unreported murders, and then elicited from Morris hearsay testimony regarding other murders, violent acts and threats attributed to defendant. But this letter and testimony showed the urgency with which Morris sought a plea agreement after days of inconclusive negotiations with the prosecutor. Moreover, Platt's cross-examination brought out that Morris had no personal knowledge of any of these matters and he had little more to say beyond "I have heard bad things" about defendant. In addition, the impact of this evidence did not compare with the Snapchat videos played to the jury, wherein defendant himself claimed to have committed murders of unidentified victims. The letter, on the other hand, was evidence that Morris was willing to provide key testimony when law enforcement officers could find no one else to cooperate after years of investigation, but only for a plea that dramatically reduced Morris's potential sentence and offered a misdemeanor conviction to his girlfriend Ashley. Defendant is perhaps on firmer ground in faulting Platt for eliciting testimony that Howell had agreed with Morris that defendant was the person who shot him. But this exchange occurred in the course of a series of questions about why Morris did not go to the police. Indeed, Morris opened his letter to the prosecutor with the statement, "I will help you in your case against [defendant] and testify; I feel it's the right thing to do for my friend [Howell]." Yet, as Platt's cross-examination highlighted, Morris was not moved to do the "right thing" for Howell until Morris was looking for a plea agreement for himself.
In any event, the record supports the trial court's determination that the judge who heard the disqualification motion did everything required for a valid waiver of Platt's conflict of interest. In People v. Bonin (1989) 47 Cal.3d 808, the California Supreme Court said, "When the trial court knows, or reasonably should know, of the possibility of a conflict of interest on the part of defense counsel, it is required to make inquiry into the matter." (Id. at p. 836.) "After the trial court has fulfilled its obligation to inquire into the possibility of a conflict of interest and to act in response to what its inquiry discovers, the defendant may choose the course he wishes to take. If the court has found that a conflict of interest is at least possible, the defendant may, of course, decline or discharge conflicted counsel. But he may also choose not to do so: 'a defendant may waive his right to the assistance of an attorney unhindered by a conflict of interests.'" (Id. at p. 837.)
"To be valid, however, 'waivers of constitutional rights must, of course, be "knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences[, ]" . . . [and] must be unambiguous and "without strings." '" (People v. Bonin, supra, 47 Cal.3d at p. 837.) "Before it accepts a waiver offered by a defendant, the trial court need not undertake any 'particular form of inquiry . . ., but, at a minimum, . . . must assure itself that (1) the defendant has discussed the potential drawbacks of [potentially conflicted] representation with his attorney, or if he wishes, outside counsel, (2) that he has been made aware of the dangers and possible consequences of [such] representation in his case, (3) that he knows of his right to conflict-free representation, and (4) that he voluntarily wishes to waive that right.'" (Ibid.) We review the trial court's ruling on a waiver of representation free of conflict under the abuse of discretion standard. (People v. Baylis (2006) 139 Cal.App.4th 1054, 1067.)
Here, the judge who denied the motion to disqualify defense counsel was diligent in taking the steps necessary for defendant's valid waiver of conflict-free representation by Platt. The judge reviewed the parties' written submissions on the conflict issue, including written waivers signed by defendant and Ashley, questioned counsel about the particular circumstances giving rise to a possible conflict, conducted two hearings and in both questioned defendant and received confirmation about his understanding of the consequences of the waiver, appointed independent counsel to advise defendant, and questioned independent counsel about the advisement to defendant, which included matters set forth in another written waiver.
Defendant, however, argues that the conflict was unwaivable due to the appearance of impropriety. Defendant cites no authority for what constitutes an "unwaivable" conflict, let alone a conflict that turns on "appearance of impropriety." To be sure, in People v. Jones (2004) 33 Cal.4th 234, the court disqualified counsel for defendant despite a waiver because counsel also represented a nondefendant who had a motive to kill the same victim. (Id. at pp. 241-242.) Such a conflict is not present here. Rather, the judge specifically questioned Wellenbrook on that subject and received confirmation that the defense would not implicate Morris in the crime charged against defendant.
Defendant also contends that "arguably" he did not waive his right to counsel because he was not advised nor did he agree in the written waivers or proceedings in court to specific matters that arose in the trial, for example, that Platt would introduce "harmful evidence" like the letter Morris wrote to the prosecutor. However, "[i]n determining whether a defendant understands the nature of a possible conflict of interest with counsel, a trial court need not separately explore each foreseeable conflict and consequence. Nor does a defendant's waiver of conflict-free counsel extend only to matters discussed in detail on the record." (People v. Jones (1991) 53 Cal.3d 1115, 1137; People v. Mai (2013) 57 Cal.4th 986, 1011 ["[A]s we have consistently said, waiver of a possible attorney conflict of interest is not invalid simply because all conceivable ramifications of the potential conflict were not explored or explained, and the waiver does not extend only to those matters discussed on the record"].) To be sure, defendant was warned by Sullivan that unforeseen conflicts may arise during trial. Still, defendant decided to waive conflict-free representation for the purpose of securing Platt as his attorney.
Accordingly, we conclude the trial court did not abuse its discretion in denying defendant's motion for a new trial based on Platt's conflict of interest.
II
Ineffective Assistance Of Counsel
Defendant contends the trial court erred in denying his motion for new trial based on ineffective assistance of counsel, as well as evidence of his innocence.
Ineffective assistance of counsel is grounds for a new trial. (People v. Fosselman (1983) 33 Cal.3d 572, 582-583.) We review denial of a motion for new trial based on ineffective assistance of counsel for abuse of discretion. We defer to findings of fact by the trial court and will not disturb the court's decision without a showing of clear and unmistakable abuse. (People v. Wallin (1981) 124 Cal.App.3d 479, 482-484.)
On a claim of ineffective assistance of counsel, defendant must show defense counsel's performance was deficient, i.e., fell below an objective standard of the prevailing professional norms, and defendant was prejudiced by counsel's deficient performance. (People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) To establish prejudice, defendant must show there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 698].) "A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Ibid.) "A defendant must prove prejudice that is a' "demonstrable reality," not simply speculation.'" (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
"As a court that reviews the conduct of counsel in hindsight, we are reluctant to second-guess tactical decisions made by trial counsel. [Citations.] We are equally, if not more reluctant, to second-guess the trial court's discretionary ruling that defense counsel's tactical decisions made before it resulted in an unfair trial, i.e., a miscarriage of justice. In this respect, an ineffective assistance claim made in a motion for new trial differs from one raised for the first time on appeal or petition for writ of habeas corpus. 'After all, the trial court is in the best position to make an initial determination, and intelligently evaluate whether counsel's acts or omissions were those of a reasonably competent attorney.'" (People v. Andrade (2000) 79 Cal.App.4th 651, 660; 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"].)
On appeal, defendant cites three areas where he claims Platt was deficient, which we address in turn.
First, defendant contends Platt was deficient in introducing Morris's letter to the prosecutor, which referred to defendant committing other murders, followed by cross-examination of Morris about other murders, violent acts and intimidation attributed to defendant. As discussed, defendant relied on these same acts to support a motion for new trial based on conflict of interest. They are no more compelling in this context. Under the standards outlined above, we will not second-guess Platt's tactical decision to introduce the letter to show that Morris offered to fabricate eyewitness testimony to obtain the plea agreement he wanted or Platt's follow-up examination of Morris to establish that he had no personal knowledge of any other crimes defendant purportedly committed and was merely repeating rumors or inventing incriminating evidence.
Moreover, defendant cannot show prejudice. We agree with the trial court's observation on the first motion for a new trial that defendant overstated the significance of the letter as evidence that led to the verdict, given the Snapchat videos played to the jury in which defendant himself declares several times that he has shot others and will shoot anyone who cooperates with the police. This evidence was much more damning than statements in Morris's letter or his testimony in which Morris admitted he had no knowledge of any other murders involving defendant and could not name defendant's supposed victim(s).
Second, defendant contends that Platt was deficient in failing to impeach Morris with his prior convictions. As described by defendant, "[a]lthough Morris admitted only 'two, maybe three' prior convictions, Platt -- who had previously represented Morris in at least five criminal matters over several years -- made only the weakest of attempts to push back against that testimony. [Citation] Platt simply noted to Morris, '[s]ound[s] more like there were six,' and when Morris denied that observation Platt dropped the matter altogether." Defendant also pointed to this exchange as a basis for a motion for new trial premised on a conflict of interest. Defendant argues "a competent attorney would have at least attempted to admit the underlying conduct of Morris's convictions."
Defendant omits that the prosecutor had questioned Morris about his prior convictions and the underlying conduct involved, including carrying a loaded weapon in a public place, two convictions for fleeing a police officer (one involving reckless and dangerous driving), violating a promise to appear in court, giving false information to a police officer, two convictions for possessing marijuana for sale, and carrying a concealed weapon (which Morris admitted was loaded). There was no need for Platt to elicit testimony regarding the underlying conduct since the jury had already heard it. In addition, none of the crimes involved violence and the felony marijuana possession for sale had been downgraded to a misdemeanor by subsequent legislation. Another line of questioning about the underlying conduct would only serve to highlight that Morris's prior convictions were for crimes less serious than those charged against defendant. Platt made a reasonable tactical choice to take advantage of Morris's attempt to retract his own testimony regarding the number of his prior convictions.
Third, defendant faults Platt for failing to conduct an adequate investigation which would have discovered the witnesses defendant's new counsel found who would support a self-defense theory that Howell shot first and that Morris may not have even been present. Defendant also makes the related argument that this new evidence shows that he was innocent, and a new trial should have been granted on that basis.
We note that Platt did present the testimony of multiple witnesses that Morris was not present.
To establish an ineffective assistance of counsel claim based on failure to investigate, a defendant must show more than a defense counsel's failure to interview or call witnesses. (See People v. Knight (1987) 194 Cal.App.3d 337, 345.) Our Supreme Court has said, "[a]lthough trial counsel clearly has a duty to adequately investigate possible defenses to enable formulation of an informed trial strategy [citation], we will not presume from a silent record that counsel failed in this duty." (People v. Jennings (1991) 53 Cal.3d 334, 375.)
The trial court pointed out that the defense investigator interviewed numerous witnesses, who testified at trial, that defendant was not there. Defendant himself, when interviewed by police officers in Washington, said he was not there. As the trial court observed, "Mr. Platt was in a position where he had to go with the defense [that] was the strongest, that the witnesses were saying was the strongest."
The court observed that Kevin was a less than compelling witness because, even in his changed account of the shooting, he would not say that defendant, his lifelong friend, shot at Howell. The court noted that one of the more credible witnesses now supporting a self-defense theory, initially told police he did not see anything and did not want to cooperate with the investigation. When Platt's investigator interviewed that person, he continued to say he did not see anything; "so he also changed his story" for the purposes of a new trial.
The court also commented that it would be rare for a defendant claiming self-defense not to testify. If defendant did testify, he would have been impeached by his initial statement to the police that he was not present.
We defer to the trial court's discretion and conclude the court did not err in denying defendant's motion for a new trial based on ineffective assistance of counsel. (People v. Andrade, supra, 79 Cal.App.4th at p. 660.)
For the same reasons, we conclude the trial court did not err by denying the motion for a new trial based on defendant's actual innocence. Defendant cites section 1181, case (8), which provides in relevant part that a new trial may be granted: "When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given ..... "
A new trial motion based on newly discovered evidence is disfavored, and denial of such a motion will rarely be reversed on appeal. (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1151; People v. Fairchild (1962) 209 Cal.App.2d 82, 84.) A trial court's denial of the motion will not be disturbed unless the defendant clearly shows a manifest and unmistakable abuse of discretion. (People v. Delgado (1993) 5 Cal.4th 312, 328.)
Plainly, defendant has not established a basis for a motion for new trial under this provision of section 1181. At the hearing on defendant's second motion for a new trial, the court suggested that it would be a "gamble" going to trial on an identification defense if defendant actually thought he had a valid claim of self-defense. If that were the case, either defendant told Platt it was self-defense and they decided to present an identification defense or defendant did not tell Platt. Either way, defendant knew whether he was there and shot Howell after Howell shot first. Thus, evidence of self-defense could not be newly discovered. Defendant had known all along whether Howell shot first and he shot back. (People v. Greenwood (1957) 47 Cal.2d 819, 822 ["Facts that are within the knowledge of the defendant at the time of trial are not newly discovered even though he did not make them known to his counsel until later"].)
Further, Kevin's recantation was not "newly discovered evidence, but was merely a proposal on the part of one of the witnesses to change his testimony" after a trial and verdict. (People v. Lerner (1936) 11 Cal.App.2d 208, 210.)
Finally, defendant produced no affidavits by the witnesses offered to support a self-defense theory, merely statements taken by defense counsel's investigator. (See People v. Miramontes (1957) 153 Cal.App.2d 402, 403-404 [upholding the denial of new trial motion that was based on hearsay].)
III
Insufficient Evidence Of Premeditation And Deliberation
Finally, defendant contends the evidence is insufficient to support the jury's finding that he acted with premeditation and deliberation. Again, we disagree.
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence -- that is, evidence that is reasonable, credible, and of solid value -- from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] We determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.] In so doing, a reviewing court '" 'presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.'" '" (People v. Morales (2020) 10 Cal.5th 76, 88.)
" 'A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] "Deliberation" refers to careful weighing of considerations in forming a course of action; "premeditation" means thought over in advance. [Citations.]' [Citation.]' "Premeditation and deliberation can occur in a brief interval. 'The test is not time, but reflection. "Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly." '" '" (People v. Solomon (2010) 49 Cal.4th 792, 812.)
In People v. Anderson (1968) 70 Cal.2d 15, the our Supreme Court articulated standards to guide review of the sufficiency of evidence of premeditation and deliberation, including three basic categories of evidence: (1) facts about a defendant's prior behavior that show planning, (2) facts about any prior relationship with, or conduct toward, the victim that show motive, and (3) facts about the manner of the killing which show that the defendant planned to kill the victim. (Id. at pp. 26-27.) The Anderson standards are guides to analysis; they are not rules nor are they exclusive. "Unreflective reliance on Anderson for a definition of premeditation is inappropriate. The Anderson analysis was intended as a framework to assist reviewing courts in assessing whether the evidence supports an inference that the killing resulted from preexisting reflection and weighing of considerations. It did not refashion the elements of first degree murder or alter the substantive law of murder in any way. [Citation.] Anderson identifies categories of evidence relevant to premeditation and deliberation that we 'typically' find sufficient to sustain convictions for first degree murder." (People v. Thomas (1992) 2 Cal.4th 489, 517; People v. Morales, supra, 10 Cal.5th at p. 89 ["In the years since Anderson,' "we have emphasized that its guidelines are descriptive and neither normative nor exhaustive, and that reviewing courts need not accord them any particular weight"' "].)
In any case, under the Anderson guidelines, we conclude there was substantial evidence supporting the jury's verdict of first degree murder. As to planning, that defendant was carrying a loaded gun at the time of the incident shows planning. (See People v. Lee (2011) 51 Cal.4th 620, 636 ["defendant brought a loaded handgun with him on the night [the victim] was killed, indicating he had considered the possibility of a violent encounter"]; see also People v. Elliot (2005) 37 Cal.4th 453, 471 ["That defendant armed himself prior to the attack 'supports the inference that he planned a violent encounter' "]; People v. Villegas (2001) 92 Cal.App.4th 1217, 1224 ["As to prior planning, defendant was carrying a loaded gun with him at the time of the incident"].)
The jury also could reasonably conclude from the evidence presented that the prior altercation involving defendant and Kevin with Howell at a club provided a motive for the shooting. (People v. Manriquez (2005) 37 Cal.4th 547, 577 [verbal altercation before shooting provided evidence of premeditation and deliberation].) Morris testified that he and Howell were at a club and defendant walked up to Howell and asked what was his problem with Kevin's sister, and, while Howell was talking to defendant, Kevin hit Howell and broke his eye socket. Morris saw defendant after Howell was shot but before he died, and defendant said about the shooting that "Kev's his friend," which Morris understood to mean that what defendant did, he did because of his friendship with Kevin. Thus, there was a preexisting animosity involving Howell, on the one hand, and defendant and Kevin, on the other, that defendant acted on that animosity by shooting. (Cf. People v. Hyde (1985) 166 Cal.App.3d 463, 478 [evidence of motivation to exact revenge sufficient to support finding of premeditation].)
Finally, the manner of killing supports the jury's finding of premeditation and deliberation. Howell suffered multiple gunshot wounds to his right arm, left leg, torso, chest, abdomen, and buttock, including wounds to vital areas. Howell's colon had to be partially removed and reconnected and he had surgery on his liver as well. (See People v. Manriquez, supra, 37 Cal.4th at p. 588 [finding that multiple gunshot wounds received at close range, where defendant continued to fire after hitting the victim, showed intentional murder]; People v. Silva (2001) 25 Cal.4th 345, 369 [multiple shotgun wounds indicated killing was premeditated and deliberate]; People v. Bolin (1998) 18 Cal.4th 297, 332 [multiple gunshot wounds, several of which would be fatal, supported premeditation and deliberation finding]; People v. San Nicholas (2004) 34 Cal.4th 614, 658-659 [sheer number of wounds, many of which could be fatal, supported deliberation finding]; see also People v. Koontz (2002) 27 Cal.4th 1041, 1081-1082 [shooting victim in vital organs at close range shows premeditation and deliberation].)
In addition, defendant was holding the gun with both hands in front of him, showing that he was taking aim at Howell. (See People v. Wells (1988) 199 Cal.App.3d 535, 541 [manner of killing showed premeditation and deliberation where defendant chased victim, aimed and shot him in the back three times].)
Accordingly, we conclude there was sufficient evidence to support the jury's finding of premeditation and deliberation.
DISPOSITION
The judgment is affirmed.
We concur: Hoch, J., Krause, J.