Opinion
A137442
08-22-2014
THE PEOPLE, Plaintiff and Respondent, v. RICHARD CHAE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. SC071149A)
This is an appeal from judgment after a jury found appellant Richard Chae guilty of felony bribery. Appellant challenges this judgment on the grounds that certain evidence was improperly admitted in violation of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and that he received ineffective assistance from counsel based on his trial attorney's failure to bring a timely Miranda motion to challenge admission of this evidence. For reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On June 14, 2010, an information was filed charging appellant with the following crimes: (1) offering a bribe (Pen. Code, § 67) (count one); (2) driving while under the influence of alcohol (DUI) (Veh. Code, § 23152, subd. (a)) (count two); and (3) driving while having a blood alcohol level of 0.08 percent or higher (Veh. Code, § 23152, subd. (b)) (count three). The information further alleged that appellant had prior convictions for reckless driving and DUI within the meaning of Vehicle Code section 23546.
A jury trial began November 14, 2011, after which the jury found appellant guilty of both DUI offenses, but failed to reach a verdict with respect to the bribery offense. The bribery charge was retried before a jury beginning on June 26, 2012. During this second trial, the following evidence was presented.
On February 26, 2010, at about 2:40 a.m. in the City of Colma, Officer Christopher Grant observed a silver Lexus traveling eastbound at approximately 48-miles per hour in a 25-mile-per-hour zone. Officer Grant conducted a traffic stop, during which he suspected the driver, appellant, was intoxicated. Although appellant insisted he had consumed just two beers, he subsequently failed a series of field sobriety tests, as well as a preliminary alcohol screening test. Officer Grant thus concluded appellant had been driving under the influence and began the arrest process as his two colleagues, Officers Ramsey and Howard, observed from about eight to 10 feet away.
Specifically, appellant's motions were slow and deliberate, his eyes watery and bloodshot, and his body and vehicle smelled of alcohol.
As Officer Grant was advising appellant that he was under arrest and placing him in handcuffs, appellant, who had previous DUI convictions, "began to plead. He stated he cannot have this happen." Appellant then offered the officer $900 to "make this go away," stating that he had the money readily available in his pocket. Officer Grant declined appellant's offer, taken aback that appellant had attempted to bribe him nearly a thousand dollars, something that had never happened to him before. Nonetheless, appellant then offered to let him split the $900 with Officers Ramsey and Howard, an offer Officer Ramsey overheard and considered serious. Officer Ramsey also overheard Officer Grant decline appellant's second bribery offer. Officer Grant then told appellant that, even if he had wanted to take the money, his supervisor, Sergeant Lum, was present at the scene in a nearby vehicle. A subsequent inventory search of appellant and his vehicle revealed, among other things, $1,055 in cash and $135 in casino chips in his pocket.
As appellant notes, Officers Ramsey and Howard can be seen on the patrol car videotape talking and laughing during the time he allegedly made the $900 offer.
Officer Grant placed appellant in his squad car to take him to the First Chance facility in South San Francisco (in lieu of jail), where he could sober up after taking the requisite blood or breath alcohol test. Once in the squad car, Officer Grant said to appellant, "[n]ow, back to the whole bribery thing," prompting appellant to interrupt him and apologize to him. Appellant then asked, "between you and me," whether Officer Grant would have accepted his money had his supervisor not been on the scene, to which Officer Grant responded: "No." Officer Grant then proceeded to take appellant to task for offering him the $900 bribe, reminding him that police officers have certain legal and ethical obligations that preclude them from accepting bribes.
Officers Ramsey and Howard remained at the scene to assist in the towing of appellant's vehicle.
As the conversation continued, Officer Grant advised appellant to promptly decide whether he would submit to a blood or breath alcohol test upon their arrival at First Chance. He also advised appellant his Lexus would be towed at his expense. Then, at the end of the 10-minute journey to First Chance, as the men prepared to exit the vehicle, appellant said: "Officer Grant, I know it's not kosher for me to say this, and we've already talked about the bribery thing, but if there's any way you can erase this, I will give you $5,000." In response, Officer Grant asked appellant whether he had in the past successfully bribed his way out of such a situation, to which appellant replied: "I've never tried this, I've never tried this. But, seriously, I will give you $5,000." Officer Grant warned, "It's a felony," and appellant said, "I know, I know, that's why I'm just saying, like . . . ." At this point, Officer Grant interrupted him: "[The] initial bribery . . . they're all recorded, everything is recorded." Appellant responded, "Okay, Okay, Okay," and Officer Grant stated, "Just so you know," to which appellant replied, "Okay, okay, I'm gonna stop."
Just as Officer Grant warned appellant, their entire conversation during the 10-minute car ride from the scene of arrest to First Chance, including appellant's third bribery offer of $5,000, was captured by an audio recording device inside the police car. This recording was excluded from the first trial for late discovery, but played in its entirety for the jury during the second trial. In addition, Officer Grant provided extensive testimony at trial regarding both their conversation in the vehicle and their conversation during the actual arrest, which included appellant's two $900 offers. And corroborating Officer Grant's testimony, Officer Ramsey testified regarding appellant's offer at the scene of arrest of $900 to be shared among the officers.
Most of the conversation, including the $5,000 offer, was also captured on Officer Grant's personal recording device, which was played at the first trial that resulted in a mistrial on the bribery charge.
At trial, Officer Grant described his response to appellant's third offer as follows. He again lectured appellant regarding the impropriety of bribing a police officer, and instructed him to "stop it." The officer then warned appellant to "take this more seriously and be more aware of the situation" that he was now in, having "escalated" what was initially only a DUI violation.
During appellant's subsequent intake at First Chance, Officer Grant warned the counselor on duty not to let appellant "bribe his way out" of this one. The counselor asked Officer Grant why, to which the officer explained appellant had already made offers of $900 and $5,000, respectively. The counselor laughed, stating that any offer would "have to be worth a bigger amount, like, a year's salary," to which appellant responded: "Well, what does it take? What's the number?" Upon learning the counselor made about $35,000 yearly, appellant offered Officer Grant $35,000. Officer Grant again declined the bribery offer and reiterated to appellant that it would be unethical to accept it before leaving appellant in the counselor's care.
The First Chance counselor, Kelly Galindo, testified at the first trial but not at the second trial.
Rather than arrest appellant for bribery at the scene of the crime, Officer Grant followed the accepted police practice of recording what had occurred in his police report and then referring the case to the District Attorney to decide whether to bring additional charges. Officer Grant explained that he had been shocked by appellant's conduct and had never before investigated a bribery case, so was not readily familiar with the elements of a bribery offense.
On June 28, 2012, the jury found appellant guilty of offering a bribe. Following a sentencing hearing, the trial court suspended imposition of sentence and placed appellant on supervised probation for a period of three years subject to various terms and conditions, including that he serve four months in jail. Appellant filed a timely notice of appeal on December 28, 2012.
DISCUSSION
Appellant raises the following issues on appeal. First, appellant contends the trial court committed prejudicial error in denying his attorney's belated motion for mistrial pursuant to Miranda based on the admission of statements he made to Officer Grant while in custody relating to his alleged offers to pay, first, $5,000 and, later, $35,000, for Officer Grant to "erase" his DUI arrest. Second, appellant contends the trial court committed further prejudicial error in denying his non-statutory motion for new trial based upon his receipt of ineffective assistance of counsel due to his attorney's failure to bring the aforementioned Miranda motion in a more timely fashion (to wit, before the evidence of his $5,000 and $35,000 offers was presented to the jury). We address each issue in turn below. I. Motion for Mistrial Under Miranda.
Appellant contends certain of Officer Grant's statements during and after appellant's transport in the police vehicle from the site of his arrest to First Chance amounted to custodial interrogation in violation of Miranda. As such, appellant contends his responsive statements, including those relating to his alleged $5,000 and $35,000 bribery offers, should have been excluded. Appellant asks this court to reverse the trial court's denial of his motion for mistrial based on the wrongful admission of these statements.
The governing law is well-established. "[U]nder the due process clause of the Fourteenth Amendment to the United States Constitution . . . an involuntary statement obtained by a law enforcement officer from a criminal suspect by coercion is inadmissible in a criminal proceeding." (People v. Neal (2003) 31 Cal.4th 63, 67.) As such, a statement obtained by an officer from a suspect during a custodial interrogation "may be admitted in evidence only if the officer advises the suspect of both his or her right to remain silent and the right to have counsel present at questioning, and the suspect waives those rights and agrees to speak to the officer." (Ibid.)
" 'The scope of our review of constitutional claims of this nature is [likewise] well established. We must accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. [Citations.] However, we must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained. [Citation.]' " (People v. Johnson (1993) 6 Cal.4th 1, 25.)
We reject the People's argument that, because appellant raised the constitutionally-grounded Miranda issue by way of a motion for mistrial rather than a motion to exclude, the more deferential abuse-of-discretion standard should apply.
Here, the parties' dispute is centered on whether any acts or words by Officer Grant amounted to "interrogation" within the meaning of Miranda and, if so, whether appellant was harmed by admission of certain statements he made in response to such interrogation. They agree appellant was in custody at the time of the purported interrogation and was not advised of his Miranda rights. "Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. . . . But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response." (Rhode Island v. Innis (1980) 446 U.S. 291, 300-302 [fns. omitted]. Accord People v. Sims (1993) 5 Cal.4th 405, 440.)
It is the prosecution's burden to prove the defendant's statements "were the result of something other than a process of interrogation designed to elicit incriminating statements." (People v. Davis (1967) 66 Cal.2d 175, 180.)
Here, appellant argues Officer Grant's statements during his transport to First Chance were "reasonably likely to elicit an incriminating response from [him]." In so arguing, appellant reasons that, during the car ride, immediately after Officer Grant said, "now back to the bribery thing," he "incriminated himself by apologizing for the alleged $900 statement. Shortly thereafter, [appellant] further incriminated himself by asking whether [Officer] Grant would have taken money. Later, during the same conversation, [appellant] expanded upon the idea, allegedly making an incriminating statement about $5,000. Then, once at First Chance, after [Officer] Grant again mentioned bribery, and only after [Officer] Grant and the First Chance employee proceeded to discuss bribes and potential amounts of bribes, did [appellant] allegedly offer [Officer] Grant $35,000, the exact amount [Officer] Grant had been discussing with the First Chance employee."
Having considered the identified portion of the transcript in the context of the record as a whole, we conclude that, even assuming appellant was "interrogated" within the meaning of Miranda when Officer Grant referred him "back to the bribery thing," no harm to appellant resulted given that the balance of his bribery-related statements supporting his conviction fall well-outside of Miranda's net. Our reasoning is as follows.
The questioning or functional equivalent prohibited by Miranda means " 'words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.' ([Rhode Island v.] Innis, supra, 446 U.S. 291, 300-301 . . . ; fns. omitted.)" (In re Albert R. (1980) 112 Cal.App.3d 783, 789.) Under this standard, Officer Grant's conduct in directing appellant "back to the bribery thing" is arguably best understood as an expression of the officer's "shock[]" (his own word) at appellant's previous $900 offers and an impromptu lecture on their impropriety. Appellant acknowledges Officer Grant was not directing any questions at him. Officer Grant simply made the identified comment and, before finishing his statement, appellant interrupted him to apologize. Moreover, as the record reflects, unlike in most situations giving rise to Miranda concerns, Officer Grant was himself the victim of (and percipient witness to) appellant's $900 bribery attempts. As such, the fact that Officer Grant voiced a reaction to these offenses is not surprising and does not, in and of itself, reflect a police strategy to elicit any incriminating response from appellant. (Cf. People v. Jack (1965) 233 Cal.App.2d 446, 462 ["the definite impression is gained [from the conversation] that the officer's objective . . . was to secure a confession of the recent offense which up to that time defendant had persistently denied committing"]; In re Albert R., supra, 112 Cal.App.3d at p. 792 ["the accusatory words used by Officer Ortiz [to wit, 'that was a cold thing you did to Jim Hackett, selling him that hot car'] . . . must be considered as the functional equivalent of express interrogation and calculated to result, as it in fact did, in the procurement of an inculpatory statement"].)
The parties do not raise the issue of whether the Miranda analysis differs where, as here, the defendant's statement to the officer itself constitutes the crime (of bribery). In any event, although interesting in concept, we need not consider it on this record.
However, putting aside the propriety of Officer Grant's "back-to-the-bribery-thing" comment, the fact remains that the actual statement captured on the police recording device that is being challenged under Miranda - appellant's offer of a different bribe in the amount of $5,000 - was not made until several minutes after Officer Grant's comment on the previous $900 bribes. Specifically, the offer was made once they had arrived at First Chance and at a time when the topic of conversation had changed to the more ordinary subject of advising appellant of the next steps in the arrest process (to wit, the requirement that he submit to a blood or breath alcohol test after registering at First Chance). In other words, appellant's statements in regards to the $5,000 offer could not reasonably be viewed by appellant or anyone else as a product of Officer Grant's comments regarding the $900 offers, spoken several minutes earlier during an unrelated discussion. (See Arizona v. Mauro (1987) 481 U.S. 520, 529 [rejecting Miranda claim where "[defendant's] volunteered statements cannot properly be considered the result of police interrogation"]. See also People . Ray (1996) 13 Cal.4th 313, 338 [defendant's confession was not obtained in violation of Miranda where "[n]othing in the substance or tone of [the officer's custodial] inquiries was reasonably likely to elicit information that defendant did not otherwise intend to freely provide"].)
As described above, the audiotape reflects that, when told of this requirement, appellant asked Officer Grant to "give him a break" by delaying administration of the alcohol test to allow his blood alcohol level to drop. The officer replied that he had already given appellant several breaks, including by taking him to First Chance rather than jail and by towing his car to a one-day storage facility rather than impounding it for 30 days. It was at this point that appellant made the $5,000 bribery offer to "erase this." Officer Grant responded with another reminder of his moral and ethical duties as a law enforcement official to follow the law, to which appellant replied: "Okay, okay, I'm gonna stop."
Indeed, even appellant acknowledges his challenged statement regarding the $5,000 offer was made "[l]ater," when he, not Officer Grant, chose to "expand[] upon the [bribery] idea[.]"
We reach a similar conclusion with regard to appellant's final offer of $35,000, which he made to Officer Grant in front of a First Chance employee during his intake into the facility. Specifically, Officer Grant had warned the employee not to let appellant bribe his way out of trouble, to which the employee replied that any bribe would have to be worthwhile, such as "a year's salary." Then, when appellant learned the employee made about $35,000 per year, appellant offered this amount to Officer Grant to secure his release. As before, there is nothing about this conversation that suggests Officer Grant was, or could reasonably be viewed as, eliciting from appellant an incriminating statement. Officer Grant's comment was directed at the First Chance employee, not appellant, and did not otherwise invite response from him. (See Rhode Island v. Innis, supra, 446 U.S. at p. 302.) Moreover, given Officer Grant's experience with appellant up to that point, his comment could more reasonably be viewed as a well-advised warning to the employee made in furtherance of his performance of official police duties. Appellant's interjection that he would pay the equivalent of the First Chance employee's yearly salary to get out of trouble, considered objectively and in proper context, was, in turn, nothing more than a free and voluntary statement falling well-outside the intended scope of Miranda's protective shield. As our colleagues in Division Two of this appellate district have aptly explained: "Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. . . . Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.' (Miranda v. Arizona, supra, 384 U.S. at p. 478 , . . . [Citation]." (People v. Patterson (1979) 88 Cal.App.3d 742, 748-749.)
Finally, we find no prejudice arising from the trial court's admission of appellant's apology and query to Officer Grant regarding whether Officer Grant would have taken the bribe had the officer's supervisor not been present. Under California law, the test of prejudice for admitting a coerced confession is rooted in a federal case, Chapman v. California (1967) 386 U.S. 18, 24, which requires reversal unless the error was harmless beyond a reasonable doubt. (See also People v. Sims, supra, 5 Cal.4th at p. 447; People v. Johnson, supra, 6 Cal.4th at pp. 32-33.) This standard has been described as follows: "An error is harmless when it is found to be 'unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' (Yates v. Evatt (1991) 500 U.S. 391, 403 [114 L.Ed.2d 432, 111 S.Ct. 1884], disapproved on other grounds in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4 [116 L.Ed.2d 385, 112 S.Ct. 475].)" (People v. Gonzalez (2012) 210 Cal.App.4th 875, 884.)
"Under the Chapman standard, the government has the burden to show that the guilty verdict 'was surely unattributable to the error.' [Citation.] The proper test for prejudice requires consideration of not only the evidence that would support the judgment, but also the impact of the inadmissible evidence on the final outcome. [Citation.]" (People v. Gonzalez, supra, 210 Cal.App.4th at p. 884.)
Here, we need but point to just some of the many factors demonstrating the harmless nature of the allegedly improper admission of appellant's apology and query regarding the circumstances under which Officer Grant would have accepted a bribe. First, we note that appellant does not challenge the underlying fact that he told Officer Grant while being placed in handcuffs that he would pay him $900 - nearly the exact amount of cash he had in his pocket - to get out of the DUI. Nor does appellant challenge the additional fact that, while Officer Grant was conducting an inventory search of his vehicle, he again offered $900, this time to be split among Officer Grant and his two police colleagues if they would let him off. At least one police officer besides Officer Grant (to wit, Officer Ramsey) testified to having heard appellant's second offer. Undoubtedly, both Officer Grant and Officer Ramsey testified as disinterested and reliable witnesses; appellant does not seriously contend otherwise. (See People v. Gonzalez, supra, 210 Cal.App.4th at p. 885.) As the People point out, the direct testimony of just one credible witness is sufficient proof of any disputed fact. (Evid. Code, § 411; People v. Turner (1990) 50 Cal.3d 668, 695.)
The mere fact that a mistrial was declared in appellant's first trial, which occurred without the complete recording of the conversation between appellant and Officer Grant en-route to First Chance, does not compel a contrary conclusion. As the People note, not only was the evidence different in certain regards at the two trials, the charges and jury composition were also different. As such, we decline to speculate how the first trial would have ended had the complete recording been offered. (Cf. People v. Brooks (1979) 88 Cal.App.3d 180, 188 [where both trials involved the same charges and evidence, the fact that the first trial ended in mistrial was reflective of the prejudice suffered by the defendant in the second trial due to evidentiary error].)
Thus, because there is overwhelming admissible evidence in the record, including a recorded conversation, that proves appellant voluntarily offered several bribes to law enforcement officers, we conclude any purported error in admitting the challenged statements was indeed harmless.
Given our rejection of appellant's Miranda claim on the merits, we need not address the People's forfeiture argument.
II. Effectiveness of Assistance of Counsel.
Appellant's last (and related) contention is that he received ineffective assistance from his trial attorney as a result of the attorney's failure to move to exclude the aforementioned challenged statements on Miranda grounds before they were admitted into evidence. The following additional facts are relevant.
During trial, after the court denied his motion for mistrial on Miranda grounds, appellant made a non-statutory motion for new trial pursuant to People v. Fosselman (1983) 33 Cal.3d 572. As here, appellant claimed to have received ineffective assistance from counsel based upon his attorney's failure to file a Miranda motion to exclude certain evidence relating to his alleged offer of a $5,000 bribe to Officer Grant during the ride to First Chance, and to his alleged subsequent offer of $35,000 to Officer Grant during his intake at First Chance. The trial court denied appellant's new trial motion after finding he did not suffer any Miranda violation or receive ineffective assistance of counsel during trial based upon his attorney's acts or omissions in asserting a Miranda challenge. Appellant contends the trial court's denial of his new trial motion was improper and requires reversal. The following legal principles govern our review of this issue.
A defendant is entitled to make a motion for new trial on the ground of ineffective assistance of counsel. (People v. Fosselman, supra, 33 Cal.3d at pp. 582-583.) On appeal, the review of a trial court's decision to grant or deny such motion requires two steps. First, the reviewing court must uphold the trial court's factual findings, express or implied, so long as they are supported by substantial evidence. (People v. Taylor (1984) 162 Cal.App.3d 720, 724.) In conducting this evidentiary review, "all presumptions [must] favor the trial court's exercise of its power to judge the credibility of witnesses, resolve any conflicts in testimony, weigh the evidence, and draw factual inferences." (Ibid.) Second, the reviewing court independently considers the legal issue of whether the defendant was deprived of his right to adequate assistance of counsel based upon the trial court's supported factual findings. The substantive law on this issue is well-established. To prevail on a claim of ineffective assistance of counsel, the defendant must prove more than a failure by counsel to raise a particular objection. Rather, "defendant must show counsel's performance fell below a standard of reasonable competence, and that prejudice resulted." (People v. Anderson (2001) 25 Cal.4th 543, 569.) In meeting this standard, the defendant must overcome a strong presumption that counsel's conduct was sound trial strategy or otherwise within the wide range of reasonable professional assistance. (People v. Burnett (1999) 71 Cal.App.4th 151, 180; People v. Bunyard (1988) 45 Cal.3d 1189, 1215.) Moreover, "prejudice" in this context occurs only where defense counsel's deficient performance " 'so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' " (People v. Kipp (1998) 18 Cal.4th 349, 366, quoting Strickland v. Washington (1984) 466 U.S. 668, 686.)
If "a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel's performance was deficient." (People v. Kipp, supra, 18 Cal.4th at p. 366.) We conclude this rule disposes of appellant's claim. However, before turning to this conclusion, we simply note for the record a problem with appellant's argument under the first prong of the analysis that substantial evidence does not support the trial court's finding that his trial attorney's failure to bring a timely Miranda motion was "tactical" and, thus, within the range of reasonably competent legal assistance. Specifically, appellant reasons that his trial attorney acknowledged to the court that he had not brought the motion earlier because he "just realized" the potential Miranda issue upon listening at trial to the audiotape from the police car conversation, reflective, he says, of his attorney's incompetence. However, appellant ignores the significant additional fact that the trial court initially denied his attorney's motion for mistrial without prejudice and, in doing so, invited him to bring legal authority to the next hearing demonstrating a Miranda problem under the relevant circumstances, at which time the court would reconsider the issue. In making this decision, the trial court noted that it was aware of no on-point authority. Then, at the next hearing, appellant's trial counsel did not present any supportive authority and the trial court's initial ruling to deny the motion stood. Appellant directs us to nothing in the record indicating that his attorney's failure to offer such authority, despite having the opportunity to do so, was anything other than a tactical decision reached after careful consideration of the relevant law. As such, and given our earlier conclusion that the controlling law does not in fact support a finding of a Miranda violation in this case, we see no reason to suspect appellant's attorney of failing to act with reasonable competence. Rather, like the trial court, we presume appellant's trial counsel declined to pursue the Miranda issue in order to pursue the more meritorious theory that appellant lacked specific intent to commit bribery when he drunkenly offered the respective sums of $900, $5,000, and $35,000 to Officer Grant during the night in question. (People v. Bolin (1998) 18 Cal.4th 297, 314 [attorney performance is "a question of judgment and degree that must be assessed in light of all the circumstances of the case and with a view to fundamental fairness"]; People v. Bunyard, supra, 45 Cal.3d at p. 1215.)
Appellant also argues that his trial attorney was incompetent in that he "barely listened" to the audiotape prior to trial, even though it was the "key piece" of physical evidence. Appellant ignores, however, the undisputed fact that the audiotape was extremely difficult to understand, which, as his attorney stated in court, played a role in his failure to immediately seize upon the fact that Officer Grant first initiated the conversation in the police car about the earlier $900 bribery offer. Again, considering the record as a whole, we decline to find appellant's trial attorney incompetent on this ground.
Moreover, even if appellant had valid grounds to criticize his trial attorney's actions with respect to the Miranda issue, we would still question whether appellant could, on this record, prove the counsel he received was constitutionally ineffective. As several courts have recognized, given the realities of criminal trials, there are potential claims in nearly all cases that in retrospect could (and perhaps should) have been raised. (See People v. Dunkle (2005) 36 Cal.4th 861, 916, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Yet, "the omission of a claim, whether tactical or inadvertent, does not of itself demonstrate ineffectiveness unless it was objectively unreasonable, meaning that the omitted claim was one that any reasonably competent counsel would have brought." (In re Reno (2012) 55 Cal.4th 428, 465.) For the reasons already stated (including the lack of a factual basis for finding a Miranda violation), we conclude this high standard has not been met. (See also People v. Jackson (1980) 28 Cal.3d 264, 292.)
And, finally, even accepting for the sake of argument that appellant is correct that his counsel's failure to make a Miranda motion at a more appropriate time was unreasonably incompetent, we would nonetheless agree with the trial court that appellant thereby suffered no prejudice. As we have already explained in the previous section, assuming the trial court erred in admitting appellant's challenged statements, there was a wealth of other evidence in the record that amply supported his conviction. Accordingly, we cannot conclude on this record there is a reasonable probability that a more favorable outcome to the defense would have resulted had the purported attorney errors not been made. (People v. Kipp, supra, 18 Cal.4th at p. 366; Strickland v. Washington, supra, 466 U.S. at p. 694.) Appellant's remaining challenge therefore fails.
DISPOSITION
The judgment is affirmed.
/s/_________
Jenkins, J.
We concur: /s/_________
McGuiness, P. J.
/s/_________
Pollak, J.