Opinion
D056245 Super. Ct. No. SCD211145 D059183
12-02-2011
THE PEOPLE, Plaintiff and Respondent, v. DENNIS MICKJAL POTTS, Defendant and Appellant. In re DENNIS M. POTTS on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule
APPEAL from a judgment of the Superior Court of San Diego County, Bernard E. Revak, Judge, and a petition for writ of habeas corpus. Judgment affirmed; petition denied.
Dennis Mickjal Potts does not challenge on appeal the sufficiency of evidence to support his conviction for willful, deliberate and premeditated murder (Pen. Code, §§ 187, subd. (a), 189, counts 1 and 2), conspiracy to obstruct justice (§ 182, subd. (a)(5), count 3) and the true finding as to the special circumstance he committed multiple murders (§ 190.2, subd. (a)(3)).
All further statutory references are to the Penal Code unless otherwise specified.
Instead, Potts contends the trial court abused its discretion when it denied his motion for mistrial after he contends the trial court properly admitted evidence discovered mid-trial, even though that evidence refuted the main premise of his third party culpability defense. Alternatively, Potts contends that if the trial court in fact properly denied his mistrial motion, defense counsel provided him ineffective assistance by failing to investigate fully the facts supporting his third party culpability defense.
Finally, Potts contends the trial court prejudicially erred when it allowed the prosecution to impeach a defense witness with a 1985 conviction for tax evasion.
As we explain, we reject these contentions and affirm the judgment of conviction.
While his appeal was pending, Potts filed a petition for writ of habeas corpus (petition), D059183, on the related ground he received ineffective assistance of counsel. By order of the court, the petition has been consolidated with this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
We view the evidence in the light most favorable to the judgment of conviction, to the extent there is a conflict in the evidence. (See People v. Osband (1996) 13 Cal.4th 622, 690.) Certain portions of the factual and procedural history related to Potts's claims of alleged error are discussed post, in connection with those issues.
Potts and murder victim Tori Vienneau dated for about two months during their senior year in high school. After they broke up, Potts dated Nicole Zolezzi who attended the same high school. His relationship with Zolezzi continued after graduation. In 2005, Zolezzi moved into the Potts family home where Potts also lived with his parents. Potts and Zolezzi became engaged in 2006.
For about six months after their high school graduation, Potts and Vienneau engaged in sexual intercourse about three or four times a month. Beginning in 2003, the two saw each other less frequently.
Vienneau in 2004 moved in with her then-boyfriend Neil Springstube. Springstube and Vienneau had a roommate named Daniel Moen. In December 2004, Potts and Vienneau had sexual intercourse for what Potts claims was the last time. In early 2005, Vienneau text messaged Potts she was pregnant. Later that year, Vienneau gave birth to a son she named Dean.
In spring 2006, Springstube submitted a DNA sample to determine paternity. The result of that test showed Springstube was not Dean's father. Disappointed, Springstube left Vienneau and moved to Florida.
With Springstube gone, Moen testified he began to spend more time with Vienneau and Dean. Moen often babysat Dean when Vienneau was at work and he took care of Dean for about a week in spring 2006, when Vienneau traveled to Florida in an unsuccessful attempt to reconcile with Springstube. On her return from Florida, Moen and Vienneau gave notice under the lease; Moen moved in with his mother while Vienneau moved in with girlfriend Autumn Castellones (Autumn), Autumn's two young children and Autumn's sister Tricia Castellones (Tricia).
Vienneau struggled financially as a single mother, particularly after Springstube moved away. After learning that Springstube was not the father, Vienneau asked Potts to take a paternity test. Although initially unhappy about taking the test and believing it was not possible for Dean to be his son, Potts agreed to take a mail-in paternity test. As it turns out, Potts submitted two tests and both showed he was not Dean's father.
When Vienneau learned Potts was also not Dean's father, she became upset. Vienneau believed that Potts had tampered with the test samples and insisted Potts take another paternity test supervised by the court. Potts was upset by Vienneau's request. Vienneau confided in her friends Potts had not told his fiancé or parents about Dean and the "paternity issue" involving Vienneau.
In the early evening of July 26, 2006, Vienneau and Dean were murdered in Autumn's apartment where Vienneau and Dean were temporarily living. Earlier that day, Vienneau spoke by phone to her good friend Tara Cardoso. Cardoso testified she and Vienneau talked for about 45 minutes, beginning around 12:30 p.m.
Vienneau told Cardoso that she (Vienneau) and Potts were having dinner together that night, Potts was going to pick up her and Dean from the apartment and Vienneau had arranged a babysitter for Dean. According to Cardoso, Vienneau intended to tell Potts at dinner that night that she (Vienneau) was taking him to court for paternity testing. During the call, Vienneau told Cardoso that Potts had no interest in being Dean's father.
Autumn testified she and Vienneau had been friends since about 2001. Autumn met Vienneau at work, where they also met Moen.
Moen testified his relationship with Vienneau blossomed over the years and they became best of friends. Their relationship was strictly platonic until five days before Vienneau was murdered, when Moen testified they had sexual intercourse for the first and only time. Because Moen was helping Vienneau take care of Dean, including driving Dean to daycare almost daily, and because he spent a significant amount of time with Vienneau parenting Dean, Moen testified he began to develop strong feelings for Vienneau and Dean.
Vienneau's mother, Dayna Herroz, testified Moen, Vienneau and Baby Dean visited often. Herroz knew Moen from when he was roommates with Springstube and her daughter. Herroz described Moen as Dean's "other caretaker" and personally observed Moen had strong feelings for Vienneau and would do anything for Vienneau. Herroz testified that shortly before Vienneau's murder, Vienneau said Moen was in love with her.
Herroz also testified she had lunch with Vienneau on the day Vienneau was murdered. During their lunch, Vienneau confirmed she and Potts were having dinner together that evening.
The weekend before Vienneau was murdered, Herroz and her husband met with Vienneau and insisted Vienneau pursue court-ordered paternity testing because like Vienneau, Herroz believed Potts had tampered with the mail-in tests showing Potts was not Dean's father. Vienneau responded she chose to have Dean and if Potts's family found out about the baby, according to Potts his life would be ruined.
Herroz believed there were only two possible fathers of Dean, as Vienneau had told her mother she had sexual intercourse with only Springstube and Potts at or near the time she became pregnant. Herroz firmly believed the time had come for her daughter to stop worrying about Potts and what his family knew or did not know about Dean, and believed if Potts was in fact the father, as Herroz surmised, that information should be made public. Vienneau told her mother she intended to tell Potts "in no uncertain terms" during their dinner on July 26 that Vienneau "was going to ask for a paternity test through the courts, because she believed he falsified the previous one."
Herroz testified and phone records showed that at 5:27 p.m., shortly before Vienneau's murder, Herroz and Vienneau spoke for about 12 minutes. During this phone conversation, Vienneau confirmed she was having dinner that evening with Potts. Phone records also show Potts called Vienneau at 5:39 p.m. on the night of the murders.
The babysitter, Cecily Bohrer, testified she worked with Herroz and babysat for Vienneau about eight to 10 times before the murders. Vienneau had called Bohrer a day or two before the murders and asked Bohrer to babysit Dean on the night of July 26 because Vienneau and Potts were having dinner together. As they had arranged, when Bohrer got home from work on July 26 she called Vienneau (at 5:42 p.m.) and told Vienneau she could drop off Dean. According to Bohrer, Vienneau said she needed "to do a couple of little things" and then she and Potts would bring Dean over to Bohrer's apartment.
On the evening of the murders, Moen was working his shift as supervisor at Savon (which later became CVS) in Chula Vista. Moen's shift typically was from 2:00 p.m. to 10:30 p.m. The store's video surveillance—which detectives described as antiquated— was not activated until 6:40 p.m. on the day of the murders, which store security said was not uncommon.
On the evening of the murders, Moen testified while on his break he briefly left work at around 5:20 p.m. to visit his mother in the hospital. Moen already had visited his mother in the hospital earlier that day. As Moen got into his car and began to drive, Moen decided he did not have sufficient time to visit his mother. Moen testified he stopped his car, parked in the store's parking lot and called Vienneau from inside his car. Moen testified he and Vienneau spoke for only a few minutes about "random things" before he went back to work.
Surveillance video from the store showed Moen inside the store beginning at 6:43 p.m. (after the video was turned on), where Moen remained until the store closed. Moen testified Autumn called him at about 9:15 p.m. that night and (as it turns out, incorrectly) informed him that Vienneau had killed Dean and then herself. After receiving the news about Vienneau and Dean, Moen called his store manager who gave Moen permission to close early. Moen called his brother, who met Moen outside the apartment where Vienneau and Dean had been living and were found dead.
John Young was a detective in the San Diego Police Department homicide unit in July 2006. Young testified he interviewed Moen at the crime scene on the night of the murders and described Moen as "very distraught." During a later interview that night in the interview room at the San Diego Police Department, Moen told Young he had begun work at 2:00 p.m. the previous day. Young interviewed two other Savon employees who had worked with Moen on the day of the murders and corroborated Moen's story.
A few days later, Moen called Young and volunteered that on the evening of the murders Moen had left the store at about 5:20 p.m. for about 10 or 15 minutes. As a result of this new information, Detective Young analyzed the surveillance video from the store and determined that at 6:53 p.m., the same time Moen received a final text message from Vienneau's phone, Moen was inside the store working.
Detective Young testified the distance between the Savon where Moen worked and the apartment where Vienneau was living was about 10 miles each way and the drive took at least 35 minutes roundtrip. Because Moen was working at 6:53 p.m. when he received the final text message from Vienneau's phone and because Vienneau's phone was found next to her body inside the apartment, Detective Young concluded Moen was not the murderer.
As part of his investigation, Detective Young analyzed the phones and/or the phone records of various individuals, including Moen and Vienneau. At 5:50 p.m. on the evening of the murders, Moen texted Vienneau that he was "sorry [he] was mean" to Vienneau and he should have "been more supportive" of her. Moen testified his 5:50 p.m. text message to Vienneau was in connection with a six-minute telephone conversation between him and Vienneau that occurred earlier, while Moen had sat in his car outside the store on his break. According to Moen, during that telephone conversation he told Vienneau he did not want Potts to have any contact with Dean.
Moen received a text back from Vienneau's phone saying, "It's okay. I'm just teasing you." Two minutes later, Moen texted Vienneau, "Okay. I'm sorry, though. I make up the past every day." At 5:54 p.m., Moen received a text from Vienneau's phone, "I know. You don't have to." At 5:57 p.m., Moen texted Vienneau, "Yeah, I want to." At 6:03 p.m., Moen wrote Vienneau a long text stating in part, "I'm sorry for hurting you and pushing you away. I really do love you and want to be with you. Love you."
Moen testified the next series of texts he received from Vienneau's phone were "fishy" and "out of the ordinary" from her previous text messages. At 6:10 p.m., Moen received a text from Vienneau's phone stating, "Dean is sleeping like a dead dog." At 6:27 p.m., Moen received another text from Vienneau's phone stating, "I canceled on Dennis [Potts]. Come by when you get off." At 6:32 p.m., Moen replied, "I didn't know he was coming over." At 6:39 p.m., Moen received a text in response, "Yeah." At 6:48 p.m., Moen texted Vienneau, "Oh, why [did] you cancel?" In reply Moen received a text from Vienneau's phone, "Didn't want to see him." At 6:50 p.m., Moen replied, "You'd rather see me." The response from Vienneau's phone was, "duh." Moen then texted Vienneau at 6:51 p.m., "Hee, hee. What time was he coming over?" At 6:53 p.m., the last text sent from Vienneau's phone read, "There's some scary guy standing by my car looking into my place."
At 7:05 p.m., Moen texted Vienneau back, "Yikes. What time was he coming?" At 7:09 p.m., Moen again texted Vienneau, asking "Is the guy still there?" At 7:19 p.m., Moen texts Vienneau, "You there?" An hour later, Moen tried to call Vienneau from the Savon phone, but nobody answered. The next text Moen received was from Autumn, advising Moen about an emergency involving Vienneau.
Moen and Herroz both testified that Vienneau would never say Dean was sleeping "like a dead dog" and would never have referred to Autumn's apartment as "my place" (in connection with the stranger standing outside her car) because Vienneau appreciated it was Autumn's apartment, Autumn was letting Vienneau and Dean stay in the apartment temporarily and Autumn paid the rent. Moen also testified that in the six years he and Vienneau texted she had never used the word "duh" in a text message.
Michael Morgan, an expert in digital forensics, testified he recovered text messages sent by Potts to Vienneau that had been "deleted" (e.g., no longer in the active memory) from her phone. One such recovered message was sent on July 25, 2006, when Vienneau received a text message from Potts's phone reading, "Hmmm, I don't think you could. I'm jealous, hehehe. I totally want to be sitting with you in between my legs and me holding you so comfortable."
In addition, Richard Wissemann, a criminal investigator for the People, testified he reviewed the text message data from Vienneau's phone and found there were 26 messages—including the deleted messages—between Potts and Vienneau on the day of the murders. At 4:32 p.m. that day, Vienneau texted Potts saying, "You still coming?" A minute later, Vienneau received a response (recovered by the digital forensic specialist) from Potts's phone stating, "Duh, I[']ll be there at 5:15. You home alone?" In reply, Vienneau sent Potts a message, "Yeah. Just Dean and I. Is my surprise good?"
At 4:35 p.m., Vienneau received a response from Potts's phone that was also recovered by the forensics expert that read, "Yes. Hehehe. It will be in my car. But there's something I want to tell you that you'll like. Where's Autumn's sister?" Vienneau replied, "I'm not sure. She could be in her room. I don't know. What did you want to tell me?" At 4:41 p.m., Vienneau texted Potts," Oh, God, please tell me it's not a paternity test because I want to forg[e]t about it for one night." Vienneau received a response at 4:43 p.m. from Potts's phone (also recovered by experts) that said, "Baby, relax, it's not. Just smile and wait for me to come over and be extra nice to me. I'll call you when I'm almost there." Vienneau responded, "Okay."
Investigator Wissemann testified phone records showed a phone call was placed from Potts's phone to Vienneau's phone at 5:39 p.m. on the evening of the murders.
Tricia testified she was living in an apartment with her sister Autumn and her sister's two children at the time of the murders. Vienneau and her son also were living temporarily in the apartment. Vienneau slept on the couch in the living room and Dean typically slept in his playpen in the hallway or in Autumn's room if Autumn was not at home. Tricia estimated that Vienneau and her son had been living in the apartment about a month before they were murdered.
On the day of the murders, Tricia testified she came home around 1:00 p.m. While she was making herself lunch, Vienneau and her son returned to the apartment. Tricia ate in her bedroom and later, with her door closed, fell asleep in her room while watching television. After sleeping for a few hours, Tricia awoke on her own shortly before 7:00 p.m. From the minute she awoke, Tricia did not recall hearing any noise from inside the apartment. She testified that even with her bedroom door closed, she typically could hear conservations emanating from the living room, the hallway and even from her sister's separate bedroom.
After a few minutes, Tricia went to the kitchen. On her way, Tricia saw Vienneau sitting on the floor with her back against the couch. Vienneau was partially covered by a blanket or towel. Tricia described the apartment as appearing "normal." Tricia returned to her room, made a few telephone calls and then left to get some gas in her car.
When Tricia returned to the apartment, she found Vienneau had not moved. Tricia also noticed for the first time a "red spot" on the back cushion of the new couch. Tricia called Vienneau's name a few times and when Vienneau did not respond, Tricia walked over to Vienneau and lifted the blanket/towel partially covering Vienneau. Tricia saw the cord to her hair-straightening iron, which Tricia had left on the end table in the living room, wrapped tightly around Vienneau's neck. Tricia next ran down the hall to check on Dean. Tricia opened Autumn's door and found Dean also dead. Tricia ran out of the apartment and called 9-1-1. She then called Autumn.
Police responded to Tricia's call at about 8:54 p.m. Tricia met the police at the front gate, which was closed. According to police, Tricia was hysterical as she described the scene inside the apartment. Police were forced to park their vehicles outside the apartment complex because Tricia did not have a device that opened the secured, sensor-activated gate. Tricia directed police to the third floor apartment.
San Diego Police Officer Victor Rodriguez testified he opened the front door to the apartment and found no evidence of a forced entry or tampering. The front door to the apartment also had a working "peephole." Officer Rodriguez walked over to Vienneau and observed a cord wrapped about four times around her neck. Officer Rodriguez noticed Vienneau was not breathing and saw the cord was wrapped so tightly it was actually embedded into Vienneau's neck. At that point, Officer Rodriguez believed Vienneau had been murdered.
Officer Rodriguez drew his revolver and went room-to-room looking for suspects and other victims. When he opened the door to what turned out to be Autumn's darkened room, Officer Rodriguez found an "infant," later identified as Dean, dead inside the playpen. Dean had a telephone cord also wrapped about four times around his neck.
San Diego Police Detective John Tefft investigated the crime scene. He testified that because the apartment was on the third floor, there was no way anybody could climb through a window to gain access to the apartment, since it was a "sheer drop" down to the ground. Detective Tefft found a diaper bag filled with diapers and similar objects next to Vienneau's body. About a foot away from Vienneau was her cell phone, among other items. He noted there were no signs of a struggle, as the living room was not in disarray and the only furniture overturned in that room was a small child's stool.
Detective Tefft found one of Vienneau's legs was unclothed, while the other leg was partially clothed by her jeans. Vienneau's underwear was down to her knees. Vienneau's blouse was torn, but she was still wearing her bra.
Detectives later determined the crime scene had been staged by Vienneau's attacker to make it appear that Vienneau had been the victim of a sexual assault. Detectives came to this conclusion because their investigation showed no physical evidence to support a sexual assault, such as semen or ejaculate on Vienneau's jeans or underwear, or the floor in the living room.
Detective Tefft found there was blood on Vienneau's head, but none on her hands or feet. Detective Tefft testified this finding was significant because most people when they are injured will instinctively use their hands to touch the injury, resulting in a transfer of blood. Detective Tefft also found no evidence of any "defensive wounds" on Vienneau's hands or forearms, or evidence she was involved in fighting with her attacker (e.g., broken nails).
As for Dean, Detective Tefft said the child had been strangled with a phone charging cord that was wrapped around the baby's neck and tied to the rail of the playpen.
Chief Medical Examiner Glenn Wagner testified Vienneau sustained a deep laceration to the back of her scalp that caused profuse bleeding. In addition, during the autopsy Wagner discovered a blunt force injury near Vienneau's left ear. Wagner found bleeding on Vienneau's brain from both areas of impact. Wagner surmised the laceration was caused by an instrument of some sort, while the contusion near Vienneau's ear likely was caused by a body part striking the head, such as a fist, a hand or a knee. Wagner also found blunt force trauma to the front of Vienneau's head.
As a result of the presence of petechiae or small, pinpoint hemorrhages on her face, Wagner surmised Vienneau was alive when the ligature was wrapped around her neck. Wagner found no evidence Vienneau fought back or was conscious when she started to bleed, and opined the blunt force injuries rendered her unconscious and she either fell or was placed against the couch, where she was strangled.
Wagner testified that from the condition of Vienneau's clothing it initially appeared she had been the victim of an attempted sexual assault. However, his physical examination showed no evidence to support such an attack. Wagner noted there was no evidence of any sexual assault involving the mouth, the rectum or the vagina either on gross or microscopic examination. He also noted the location of Vienneau's body on the floor and against the couch was not consistent with a sexual assault.
Forensic investigators found low levels of spermatozoa matching Moen's DNA profile in Vienneau's vagina. However, the low sperm count in Vienneau's vagina was consistent with the semen having been deposited a few days before the murders.
As to Dean, the cord around his neck was tied with a "granny" or "overhand" knot as opposed to a square knot that was used to tie the electrical cord around his mother's neck. Based on the medical evidence, Wagner opined the electrical cord was applied to Dean while he was standing up in the playpen. Over time, as Dean became fatigued and sat down, he hanged from the cord.
At about 2:45 a.m. on July 27, 2006, San Diego Police homicide detective Joseph Cristinziani, two other detectives and a police sergeant went to the Potts family's home to interview Potts. Before they contacted Potts, the detectives informally agreed not to mention to Potts that Dean also had been murdered.
During the interview, Potts told detectives he and Vienneau were long-time friends and were physically intimate at one point but not for about a year or two. Potts told police he last saw Vienneau on July 20, when they discussed getting together after Potts returned from a trip to Las Vegas. Potts said he and Vienneau exchanged several text messages the day before, but Potts erased those messages because he did not want his fiancé to view them.
Potts told the detectives he left his house at about 5:00 p.m. the evening before to visit his friend Maxwell Corn (Max). Potts went to Max's house to review surveillance video taken from security cameras at the Potts home to catch the person stealing the family's newspaper. According to Potts, Max had computer software that would allow them to review the surveillance video taken by the Pottses' security cameras. Potts told detectives he stayed at Max's house until about 8:00 p.m., then left and went straight home where he remained the rest of the evening.
Potts told detectives he and Vienneau did not have dinner plans the evening before. Potts explained he and Vienneau did have a "casual conversation" where they discussed "just going to simply hang out" together, but their plans were "not set in stone." When detectives followed up and asked Potts whether he and Vienneau had made dinner plans the night before, Potts adamantly denied making any such plans with Vienneau. Potts also told detectives it was Vienneau who had decided the evening before she did not want to get together with Potts. According to Potts, Vienneau instead decided to take Dean to the babysitter and to text Moen at work about hanging out together later that night.
In response to questions about paternity testing, Potts admitted to detectives he had taken a paternity test that showed he was not Dean's father. Detective Cristinziani testified that during the entire 20-minute interview, Potts never once asked about the welfare of Dean.
Detective Cristinziani next interviewed Potts at the police station on July 28, 2006, and took a DNA sample from Potts. During this interview, Potts maintained Vienneau had cancelled their tentative plans the evening she was murdered and denied he was angered by her request he take another paternity test, stating he would be "really, sincerely surprised" if he was the father of Dean.
That interview was recorded on video and was played at trial for the jury. The video was made a part of the record pursuant to the People's unopposed request to augment.
On the morning of September 13, 2006, Detective Tefft executed a search warrant at the Potts family home seeking items related to paternity, Potts's relationship with Vienneau and Potts's computer and digital camera, among other items. Potts denied having the paternity paperwork at the house and told detectives he had erased from his computer any information sought in the warrant. Detectives nonetheless seized a standard desktop computer from Potts's bedroom and a laptop computer from the family's living room.
During execution of the search warrant, Detective Cristinziani asked Potts directly if Potts had tampered with the previous paternity test that showed Potts was not the father of Dean. Potts denied any tampering and said he sent in his own DNA for testing. In response, Detective Cristinziani told Potts that police had conducted their own paternity test and it showed that Potts was in fact Dean's father. Potts appeared shocked by the news and denied he was the father. Potts also denied loaning his cell phone to anyone on the day of the murders and confirmed he was at Max's house that evening between 5:00 and 8:00 p.m.
Detective Cristinziani told Potts police had obtained Potts's cell phone records and cell tower information from July 26, 2006, and determined Potts was "pinging" from cell towers that were inconsistent with Potts's statement he never left Max's house between 5:00 and 8:00 p.m. Potts responded the information provided by the phone company must have been wrong. Potts also again denied having any dinner plans that night with Vienneau, suggested Vienneau was a "flake" and said that is why they had not seen each other on the night of the murders.
Next, despite his earlier statement to police, Potts said he had received only one text message from Vienneau on the day of the murders and that he had not texted her back. Detective Cristinziani told Potts that the phone records showed just the opposite, that there had been phone calls and myriad text messages between Potts and Vienneau on July 26, 2006.
As part of his investigation, Detective Cristinziani obtained from the company the swabs and documents Potts submitted for the mail-in paternity testing. Detective Cristinziani testified Potts actually submitted two applications for paternity testing, with each test costing $245. Phone records showed Potts called the testing company for results on July 17 and again on July 19, 2006. Cell phone records also showed that Potts called the company four times before he was interviewed by detectives on July 28, 2006, just two days after the murders.
Detectives interviewed Max Corn in late September 2006. Max adamantly denied submitting his DNA in place of Potts's in connection with the paternity testing of Baby Dean. Max also remained steadfast that he and Potts were together at Max's residence between 5:00 and 8:00 p.m. on the evening of the murders. Detectives collected a DNA sample from Max and later determined the DNA submitted by Potts for the paternity testing in fact matched Max's DNA.
Max was subsequently convicted for conspiracy to obstruct justice. His conviction is not the subject of this appeal.
A computer forensic expert examined the hard drive of the computer taken from Potts's bedroom during execution of the search warrant. The expert, Robert Petracheck, found the following Internet searches deleted from the hard drive of Potts's computer: (1) "committing murder" (June 24, 2006); (2) "where are court-ordered paternity test conducted" (same); (3) "court-ordered paternity test procedure" (June 26, 2006); (4) "how to cheat a swab paternity test" (same); (5) "best way to kill someone" (June 28, 2006); (6) "getting away with murder" (June 30, 2006); (7) "getting out of child support" (July 7, 2006); (8) "performing choke hold" (July 19, 2006); (9) "how to kill someone" (same); (10) "how did you get away with murder" (same); (11) "knocking someone unconscious" (July 25, 2006); and (12) "knocking someone in the head" (same).
Petracheck also testified that on August 8, 2006, 20 pages of phone records from Potts's cell phone were downloaded onto Potts's computer from the cell phone company's website. A day later, two entries on page 17 of the downloaded document had been opened and altered. Specifically, the call log was changed to show that calls at 5:39 p.m. and 6:44 p.m. on the evening Vienneau was murdered were made from Chula Vista rather than from Bonita. The altered version of that document was saved on and printed multiple times from Potts's computer and, according to Petracheck, when printed looked identical to the original log.
Petracheck also testified that from the printer cue (e.g., the mechanism by which the computer manages print jobs), he determined that two print jobs printed in sequence before the altered phone records were the paternity testing results.
Finally, Petracheck testified that Potts's computer was equipped with two video processing applications, one of which he described as "professional grade" software that was used in the movie industry for editing of motion pictures. Petracheck noted as part of his investigation he also had reviewed a computer retrieved by police from Max's residence and found a computer program known as "Pinnacle" had been installed on that computer beginning shortly after 5:00 p.m. on the evening of the murders. Petracheck testified the program installation was completed at about 7:10 p.m. later that evening, but the software program was never used.
Investigators determined from Potts's cell phone records that between about 5:00 pm. and 8:00 p.m. on the day of the murders all calls made or received by Potts on his cell phone were routed through cell tower number 814, with the exception of one call at 6:44 p.m. that was routed through cell tower number 425. Dennis McColl, a senior engineer, testified that cell tower 425 was located about .6 miles from the apartment where Vienneau was murdered. McColl further testified that if Potts had been at Max's residence at 6:44 p.m. when Potts received that call (from his mother), it would have been routed through cell tower 814 or possibly through cell tower 357, but that it would have been "next to impossible" for a cell phone user to receive a call at Max's residence that had been routed through cell phone tower 425.
Potts testified at his trial. The defense also called as witnesses a telecommunications expert, Potts's mother and father (Hannah and Robert Potts), Zolezzi and Max's father (Curtis Corn), among others. The People called rebuttal witnesses.
We discuss the testimony of defense and rebuttal witnesses post, to the extent it is relevant to the issues raised by Potts in this appeal. (See fn. 2, ante.)
A jury convicted Potts on counts 1 and 2 for the willful, deliberate and premeditated murder of Vienneau and her son (§§ 187, subd. (a), 189) and on count 3, conspiring with Max to obstruct justice (§ 182, subd. (a)(5)). The jury also found true the allegation Potts committed multiple murders (§ 190.2, subd. (a)(3)).
The trial court sentenced Potts to two consecutive terms of life without parole, as well as a consecutive term of three years for his conviction in count 3. The trial court also fined Potts $10,000 pursuant to section 1202.45 and ordered Potts to pay $13,666.50 in victim restitution pursuant to section 1202.4, subdivision (f).
DISCUSSION
A. Motion for Mistrial
1. Additional Background
During an in limine hearing, the defense sought permission to present a third party culpability defense regarding Moen. The defense noted there was physical evidence directly linking Moen to the crime scene, inasmuch as Moen's semen was discovered in the deceased body of Vienneau. In addition, the defense noted Moen had the opportunity to commit the murders because during his shift Moen had left work between 5:20 and 5:40 p.m. that evening allegedly to visit his mother in the hospital.
Although the Savon surveillance video showed Moen at work at 6:53 p.m. on the evening of the murders, the defense argued it was possible Moen murdered Vienneau and Dean and then sent himself text messages from Vienneau's cell phone sometime before 6:53 p.m., the time when his phone received the final text message from Vienneau's phone. In support of this theory, the defense argued:
"[Defense counsel]: It would take hours, your honor, to tell you all the details as far as the text messages and the follow-up with the police and all that, but basically I don't think [the People] can prove to a certainty when those text messages were sent from [Vienneau's] phone that night, whether it be by her earlier in the night or by who[m]ever the real murderer was . . . . [Italics added.]
"THE COURT: Well, I read a lot of your motions about the text messaging. Is there a problem with times on text messaging?
"[Prosecutor]: Not that I'm aware of. This is the first that [defense counsel] has told me about this, that this is an issue. [¶] Here's what happened. The victim's phone was recovered at the crime scene, and there were a series of text messages that were found on it, one of which occurred at 6:53 [p.m.]. That was the last text message that was on that [phone]. And then the time is contained on the cell phone itself. [¶] Now, when one looks at the timing of the text messages on her cell phone and then compares it with her text message exchanges that then were between herself and Mr. Potts earlier in the day, Mr. Potts, our defendant, we see that the time on her phone appeared to be -- appears to be accurate. [¶] So if [defense counsel] has evidence that the -- that these -- the timing on her cell phone is different, this is the first I've heard of it. That is not something that any of my forensic guys have said was ever an issue in this matter. [¶] This phone was looked at originally by forensic people from -- it actually ended up being Homeland Security, an expert, and then ultimately went back to the manufacturer . . . for some additional testing. . . . Maybe [defense counsel] can enlighten us as to that, because that is -- that will then be an issue, because we do, in fact, have proof that at 6:53 [p.m.] Mr. Moen is on videotape [at Savon]."
Later, the prosecution noted that if the defense claimed Vienneau's phone was inaccurate in terms of the timing of the final messages sent from it, then the defense should offer more detail on that "[b]ecause where we stand right now on the evidence is either Ms. Vienneau was alive at 6:53 [p.m.] and texting herself, or she is dead and the killer is doing it. So the question really is where's Daniel Moen. And he's on videotape at the store 10 miles away. [¶] [Vienneau] receives a number of incoming text messages after 6:53 p.m. . . . And shortly after 7:00 p.m., Mr. Moen starts text messaging her. He repeatedly text messages her[] over the ensuing minutes. The text message exchanges they have are on Mr. Moen's cell records. Not the texts themselves, but the timing of the text messages are in Mr. Moen's records. [¶] So I welcome to hear how they become inaccurate on Ms. Vienneau's cell phone. Now, they may be off 60 seconds or 90 seconds, but they're not off half an hour. I haven't heard anything to that effect. So like I said, I'd like to hear that.
"Because in terms of a straight logic puzzle, if Mr. Moen's at the store at 6:53 [p.m.], based upon the evidence we now have before us, he must, must be innocent without -- without regard to any of the other evidence that shows his innocence. [¶] That would be of course, the store employees, whose memories fade and can vary, but all of the other conduct, such as standing over Ms. Vienneau's body text messaging himself, having deleted the text messages from Mr. Potts on the phone, for reasons unknown, then he text messages himself, and then he goes back to the store, changes his clothes, I think, as part of the defense theory, and continues there throughout the night. That seems absurd. So there we have it.
"THE COURT: Are you [the defense] in a position at some point to offer some evidence, by way of experts or otherwise, that there is a problem with the time on the telephone of Ms. Vienneau?
"[Defense counsel]: Your honor, not with an expert. But I'll have to bring all of my volumes in to take certain pieces out to show you basically what my theory is, which, honestly, I'd rather not have to tell the prosecution my theory at this point. . . . [Italics added.] [¶] . . . [¶]
"THE COURT: Well, I don't know everything about this case, but it seems to me logic compels the following conclusion: you can't be in two places at the same time. And if one place is 10 miles away, and he's -- there's proof from a security camera that the person is there, and this is the person that is receiving a text message, he couldn't have sent it to himself, where the telephone is found in a location 10 miles away. That's one logical conclusion I think we can all accept.
"Secondly, it's clear to me, based on what I know, and, again, I don't know all the evidence in this case, that the person or persons who killed these two people knew them. This is not -- I don't think this is a case of some culprit out there that's a complete stranger that just, happenstance, got to Ms. Vienneau's apartment and killed her and killed her baby. Why? I mean the baby couldn't testify to anything. The baby didn't witness anything. Couldn't possibly witness anything. And even if the baby did, couldn't possibly testify to anything. So there's no reason to kill the baby.
"And so, I think it's common sense that who[m]ever did this knew Ms. Vienneau and was able to get into her apartment with her knowledge and consent. [¶] So how many people does that come down to? Well, maybe two, Mr. Potts and Mr. Moen, perhaps. [¶] . . . [¶]
"Well [because Mr. Moen is slated to testify in this case], that brings up the potential of getting him a lawyer and advising him of his Fifth Amendment privilege, unless he's already been advised of it, and wishes to testify, notwithstanding that.
"[Prosecutor]: I will tell you that I've discussed that with Mr. Moen. I've discussed what [the defense's] intent has been on this case. [Moen's] ready, willing and able to come to court and will tell what he knows.
"THE COURT: And he doesn't want a lawyer?
"[Prosecutor]: No.
"THE COURT: Wow. Okay. Let me hold up on that then."
After the jury was empanelled, over the objection of the prosecutor the trial court agreed to an in-camera discussion with the defense regarding Moen and its third party culpability defense. During that hearing, the defense stated that because Vienneau's phone did not display the time the text messages were sent to, as opposed to when those messages were received by, Moen, its theory was that "Moen sat inside the apartment after he killed the two victims and sent text messages to his phone, understanding what the response back would be. He then drives back to CVS or Savon, whatever it was at the time, in Chula Vista.
The trial court ordered the transcript of the chambers conference sealed. The transcript of that hearing appears in the reporter's augmented record on appeal.
"Even though it was against company policy to use your cell phone at work, you can see [Moen] on camera looking at his phone and looking up at the camera, like he wants to make sure that his phone is out and in his hand. [¶] Those times I'm not disputing. But the times that show up on his phone are the times that he opened up the text, not when it was sent from Ms. Vienneau['s phone], but when he opened up the text. And [it's] sort of complicated unless you understand cell phones to a certain degree.
"So [Moen] could have opened up those texts at a later time. That's when the time stamp is. It's not when Ms. Vienneau's phone sent it. Because these text messages were deleted off her phone. We don't know when exactly they were sent from her phone."
The trial court ruled the defense could present its third party culpability defense involving Moen.
About a week later, at the beginning of the seventh day of trial, during a chambers conference the prosecutor informed the trial court that an issue had developed regarding the timing of the final text messages sent from Vienneau's phone on the night she was murdered. According to the prosecutor, as he, his investigator and a software engineering expert were examining a clone of Vienneau's phone, they realized it had a "message status" feature that gave the date and time a particular text message was sent from that phone. The prosecution sought to introduce this new "timing evidence" and defense counsel objected, noting:
"[Defense Counsel]: Your honor, . . . This is a huge mess, obviously very detrimental to the defense. [The prosecutor] is right. I do not think that they knew about [this feature] before last night. I don't think any of us knew about it before last night, including the [expert]. [¶] The problem is this is a huge obstacle to the third party culpability defense of [Potts]. So I guess -- and I just learned a lot of this information this morning. [The prosecutor] and I talked about it a little bit last night. But I just saw these photographs for the first time this morning. So I'm kind of at a loss of words to know what to do at this point.
"My first inclination would be, of course, to request that [the expert] not be allowed to come back. I haven't had sufficient time to retain or even talk to an expert to go into this part of the case. But if the court is inclined to allow that in some way or fashion, I would at least ask for several days before they're allowed to put on this evidence, so I can have someone look at the phone, tell me what they think about it, maybe talk to T-Mobile, things like that.
"If the court doesn't allow me to at least do that, then I think I'm fighting with one arm tied behind my back, so to speak. And I don't even know who to go to right now to talk about something like this. It's a total surprise. So I need at least a few days. Today's Wednesday. I think I would need . . . at least need [until] Monday to find somebody to look at the phone."
The trial court agreed to a two-day continuance in order for the defense to obtain a witness to review the clone of Vienneau's phone and get some "answers" regarding the "timing evidence" from Vienneau's phone.
The defense subsequently revisited the issue of whether the People could recall their expert to testify about the timing evidence taken from Vienneau's phone, showing when the text messages were sent from that phone on the night of her murder. Defense counsel noted the prosecutor did not "hide the ball from the defense" with respect to this evidence, and admitted this evidence just "popped up in the middle of trial." Defense counsel also noted the new evidence "greatly affects" Potts's defense because it "pretty much shows that Mr. Moen is factually innocent. . . . [¶] . . . [¶]
"Obviously now, my theory has to totally change in mid-trial. That's not fair to Mr. Potts." As such, the defense with a "heavy heart" asked for a mistrial if the court intended to allow this evidence in at trial.
In response to the trial court's question regarding how the defense intended to use "the absence of what's on the phone" if the court excluded this evidence, defense counsel replied he would argue the People "can't place the times of . . . the text off of [Vienneau's] phone after about 6:27, 6:30 [p.m.], whatever it may be, until about 7:00 [p.m.] That they can't precisely pinpoint when those texts were sent from [her] phone."
The trial court responded, "But that's not the true . . . ." Before the trial court could finish its sentence, however, defense counsel interrupted and said, "I understand that. I understand that. It's a problem."
The prosecutor then offered the following assessment:
"Your honor, [defense counsel] has defended his client with enormous zeal and great skill. This is not a situation where . . . [defense counsel's] tactical decisions have in any way, shape or form fallen short of the mark. He made tactical decisions based upon the evidence he had at hand. And now my function is to prove the truth of what happened. I cannot be precluded from proving the truth.
"[Defense counsel] went with a theory, a defense. . . . I should be allowed to present [the 'new' evidence] to [the jury] who are ultimately making the decision on this. That [defense counsel] presented a theory, the best theory that he had at hand, does not make Mr. Potts less guilty or his defense insufficient under these set of circumstances.
"[Defense counsel] has explored every defense available. I know that because I've talked to him for months on end. I don't think that he'll disagree with that. . . . [¶] We know, as a practical matter, only one of two people could have done this. That's the evidence. I mean to spare all the rhetoric, only one of two people could have done this. We know that. [Defense counsel] recognizes this. I recognize that. Even his client recognized that when he made the statement on the 27th of July and told the police the whopper that [Vienneau] texted [him] and said that she was going to get a hold of Daniel [Moen] -- get out of the house and wanted to get a hold of Daniel. Only one of two people.
"[Defense counsel] was put in this position, not because of his doing, but because of the guy sitting next to him and his doing. [Defense counsel] did the best he can, but, ultimately, the truth should be revealed to the jury."
The trial court denied the defense's motion for mistrial and ruled the "timing evidence" from Vienneau's phone was in fact admissible. In so doing, the trial court reasoned a trial is "where we are seeking the truth, and the truth is the phone. [¶] And the problem is if I precluded it, it allows you, the defense, to argue its absence when, in fact, it's not absent. It's there."
Potts contends that although the prosecutor timely complied with all discovery rules (§ 1054.1) and the trial court properly admitted the "timing evidence" from Vienneau's telephone, the trial court nonetheless abused its discretion when it refused to grant the mistrial motion. Potts also contends he was prejudiced by the admission of the timing evidence because he "lost [the] power to cast a reasonable doubt on the prosecution's evidence" with respect to Moen. As such, according to Potts he was denied fundamental fairness at trial because the "bell could not be unrung" and there "was no instruction or admonition that could 'cure' what happened in this case" when the trial court "rightly decided the jury had to hear the evidence."
2. Governing Law
"In reviewing rulings on motions for mistrial, we apply the deferential abuse of discretion standard. [Citation.] 'A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.]' [Citation.]" (People v. Wallace (2008) 44 Cal.4th 1032, 1068; see also People v. Clark (2011) 52 Cal.4th 856, 990 [" 'A trial court should grant a mistrial only when a party's chances of receiving a fair trial have been irreparably damaged . . . .' [Citations].")
3. Analysis
As Potts notes in his brief, the trial court properly admitted the "timing evidence" taken from Vienneau's cell phone discovered mid-trial by the People showing the actual times the final text messages were sent from her phone and received by Moen on the night of the murders. In addition, as Potts also notes the prosecution did not violate the discovery disclosure rules in connection with the discovery of such evidence.
That evidence was properly uncovered during trial that may have undermined Potts's third party culpability defense involving Moen does not mean Potts was prejudiced in a constitutional sense or otherwise received an unfair trial. There being no error, we conclude the trial court properly exercised its discretion in denying Potts's mistrial motion.
As a threshold matter, we note that even before the "timing evidence" from Vienneau's cell phone was discovered, Potts's third party defense theory involving Moen was tenuous. The evidence from the video surveillance equipment placed Moen at work at 6:43 p.m., at or near the critical time police estimated Vienneau and Baby Dean were murdered. Phone records show text messages were exchanged between Moen and Vienneau's phone both before and after 6:43 p.m.
The appellate record also shows the apartment where Vienneau was living was about 10 miles from Moen's work, the drive from Moen's work to the apartment and back took at least 35 minutes and that Moen received a final text message from Vienneau's phone at 6:53 p.m. regarding the "scary guy" standing by her car looking into "my place."
We further note that when the defense proffered its theory that Moen murdered Vienneau and Dean and sent himself text messages from Vienneau's phone to cover up that crime, the defense unequivocally stated it would not be relying on expert testimony to support this theory, which was crucial to its third party culpability defense involving Moen. Thus, the defense never sought to offer any evidence to show how Moen allegedly was able to alter the times of the text messages he allegedly sent himself from Vienneau's phone, after he allegedly killed Vienneau and Dean, so they were recorded as being received by Moen after he returned to work, turned on the video surveillance equipment in the store and purposely looked into the camera with his phone in hand to verify for anyone who subsequently viewed the video he was in fact inside the store at 6:43 p.m. that night.
In any event, the record shows the defense was not precluded from presenting its third party culpability defense and arguing at closing this defense created reasonable doubt to acquit Potts of the murders. The record shows the defense focused suspicion on Moen, claiming Moen finally "snapp[ed]" when he and Vienneau had sexual intercourse a few days before the murders only to be rejected by Vienneau afterwards because of his weight.
What's more, the defense argued that two days before she was murdered Vienneau told Moen she was hanging out with an old boyfriend, which the defense claimed enraged Moen even though Moen testified "he wasn't bothered by it." The defense also noted the physical evidence linked Moen, and not Potts, to the murders.
Specific to the issue at hand, the defense also argued during closing that the timing of the text messages sent from Vienneau's phone to Moen did not establish Moen's factual innocence to the murders:
"One of the most important things to remember is that there's no way to validly compare the timing of the text[s] for a couple of different reasons. No. 1, Mr. Moen's phone was never taken in for forensic analysis. For whatever reason, Defective Young, even though he looked at the phone on the night of the 26th, he gave it back [to Moen] about . . . eight hours later. It was never examined by the Department of Homeland [S]ecurity . . . . That would be a way to forensically tell the exact timing of things . . . [but] that phone was never taken in for analysis.
"Is it possible that someone helped Moen by doing these so-called fake texts from [Vienneau's] phone between 6:27 and 6:53 [p.m.]? . . . . All of you who have texted for at least a couple of months know that sometimes you'll be texting back and forth with a friend and you won't hear from that friend for a while. Two or three hours may go by and then you'll get four or five texts in a row. I'm sure all of you have dealt with that at some time or another. And sometimes a week will go by and you'll get ten or twelve texts at a time. . . . You cannot claim that Danny Moen is factually innocent based on these text records. It's just not true."
Thus, the record shows that the defense presented the jury with its third party defense theory involving Moen and aggressively argued during closing that Moen was not factually innocent. As the fact finder, the jury was entitled to accept Potts's third party defense involving Moen; by the same logic, the jury also was entitled to reject that defense, as turned out to be the case here. (See People v. Smith (2005) 37 Cal.4th 733, 739 [a court of review is bound to accept the factual and credibility determinations of the trier of fact].)
We thus conclude the trial court properly exercised its discretion in denying Potts's mistrial motion because the admission of the "timing evidence" from Vienneau's phone in no way damaged, much less "irreparably damage[d]," Potts's chances of receiving a fair trial. (See People v. Silva (2001) 25 Cal.4th 345, 372-373.)
B. Ineffective Assistance of Counsel and the Writ of Habeas Corpus
In addition to the present appeal, Potts filed the petition asserting he was denied effective assistance of counsel. Potts asserts defense counsel was ineffective because defense counsel failed to have a defense expert examine Vienneau's cell phone. Potts further asserts had an expert examined Vienneau's phone, the expert would have discovered the "message status" feature on that phone and Potts therefore would not have accused Moen of the murders.
Potts further asserts in his petition that had he known the third party culpability defense involving Moen was not viable, he instead would have focused his defense on another person who claimed to have killed Vienneau and Dean. According to the petition, a gang member who lived somewhere near Vienneau bragged to at least one person that he had killed Vienneau and her son. Although the defense's investigator "eventually found some additional evidence that helped to support the gang member's [theory]," defense counsel averred in support of the petition the third party culpability defense involving Moen had the best chance of success at trial.
1. Governing Law
The law governing Potts's claim of ineffective assistance of counsel is well settled. " 'A criminal defendant is guaranteed the right to the assistance of counsel by both the state and federal Constitutions. [Citations.] "Construed in light of its purpose, the right entitles the defendant not to some bare assistance but rather to effective assistance." ' [Citation.] It is defendant's burden to demonstrate the inadequacy of trial counsel. [Citation.] [Our high court has] summarized defendant's burden as follows: ' "In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was 'deficient' because his [or her] 'representation fell below an objective standard of reasonableness . . . under prevailing professional norms.' [Citations.] Second, [the defendant] must also show prejudice flowing from counsel's performance or lack thereof. [Citation.] Prejudice is shown when there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " [Citation.]' " (People v. Vines (2011) 51 Cal.4th 830, 875-876.)
" 'In determining whether counsel's performance was deficient, a court must in general exercise deferential scrutiny . . . ' and must 'view and assess the reasonableness of counsel's acts or omissions . . . under the circumstances as they stood at the time that counsel acted or failed to act.' [Citation.] Although deference is not abdication [citation], courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight. [Citation.]" (People v. Scott (1997) 15 Cal.4th 1188, 1212.)
Indeed, "[j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' [Citation.] There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. [Citation.]" (Strickland v. Washington (1984) 466 U.S. 668, 689 .)
If a defendant makes an insufficient showing on either component of ineffective assistance of counsel, the claim fails. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.) In other words, " ' "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." [Citation.]' " (Ibid.)
2. Analysis
Assuming, without deciding, defense counsel's performance was "deficient" when he failed to have a defense expert examine Vienneau's phone before relying on the third party culpability defense involving Moen, we nonetheless reject Potts's claim he received ineffective assistance of counsel. (See People v. Rodrigues, supra, 8 Cal.4th at p. 1126.) We conclude from Potts's appeal and petition that Potts cannot establish he was prejudiced by counsel's alleged deficient conduct.
That is, Potts is unable to show there is a " ' "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." ' " (See People v. Vines, supra, 51 Cal.4th at pp. 875-876.) Indeed, on this record it is quite possible that if Potts's counsel had hired an expert to examine Vienneau's phone (or a clone of it), the expert would have found strong evidence of Potts's guilt.
In any event, Potts's third party defense theory involving Moen was, as defense counsel noted in closing, "extremely complicated" on the facts of this case. We fully agree with that assessment, based on our independent review of the record on appeal and the "evidence" proffered by Potts in support of his petition.
Although this defense was "extremely complicated" as it related to Moen, the record shows it was at least viable, inasmuch as semen and low levels of spermatozoa matching Moen's DNA were found in Vienneau's vagina at the time of her death. Also, there is substantial evidence in the record that Moen was in love with Vienneau but that Vienneau may not have felt the same way about Moen, that Vienneau and Moen had disagreed shortly before her murder about whether Potts should be allowed to visit with Vienneau's son, and that two days before her murder, Vienneau had told Moen that she was spending time with an old boyfriend, which the defense claimed enraged the jealous Moen.
In addition, the evidence in the record strongly supports the conclusion that Vienneau knew her attacker, supporting the defense's theory that Moen allegedly was the murderer and undermining the theory that a stranger/gang member was responsible for the crime.
Indeed, the apartment complex where Vienneau and Dean were living was gated and secured. The apartment itself was located on the third floor of the complex and there was a steep drop from the apartment to the ground. Thus, to gain entrance to the apartment the attacker likely came through the front door, which had a working peephole. There also was no sign of a forced entry or a struggle between Vienneau and her attacker.
As to the lack of any evidence of a forced entry or struggle, police noticed the only furniture displaced in the living room was a child's stool. Tricia testified she was in her room sleeping during the murders. Tricia further testified that from inside her bedroom with her door closed, she typically could hear conversations emanating from her sister's room and/or the living room. The evidence in the record thus supports the inference that if the attacker had surprised Vienneau and forced his way inside the apartment, Tricia would have been awakened by the noise from the attack and/or by Vienneau and her pleas for help.
Potts's theory that Vienneau was killed by a gang member also does not account for the murder of Baby Dean, as noted by the trial court. At the time of the attack, Dean was just 10 months old and was inside his playpen in Autumn's room, away from the scene of the attack on his mother. If, as the defense now contends, Vienneau was the victim of an attempted sexual assault by a complete stranger, why then would her attacker also kill Dean? Also, why would the attacker have entered Autumn's room, where Dean was located, but not entered Tricia's room where Tricia was sleeping in front of her television? After all, a 10-month-old child cannot testify in court or identify his mother's attacker, but Tricia certainly could.
Potts's gang member theory also does not explain why text messages exchanged between Potts and Vienneau on the day she was murdered were deleted from Vienneau's phone and why, ostensibly after she was murdered, Moen continued to receive text messages from Vienneau's phone, including a message that Dean was "sleeping like a dead dog." In addition, the content of some of the messages Moen received from Vienneau that Moen testified seemed "fishy" suggest the attacker knew Vienneau and Moen were friends and/or in a relationship, which further undermined the theory that Vienneau was killed by a complete stranger.
In contrast, there is nothing in the record on appeal or in the petition suggesting that at the time defense counsel allegedly erred by focusing suspicion on Moen (see Strickland v. Washington, supra, 466 U.S. at p. 689 [an attorney's performance "requires that every effort be made to eliminate the distorting effects of hindsight"]), the gang member theory was even viable, much less a better option than the theory involving Moen. The petition contains only vague statements by Potts's former defense counsel about some alleged evidence involving an unidentified gang member allegedly bragging to some unidentified third person about killing Vienneau and her son.
Based on the complete absence of any evidence in the record on appeal and in the petition showing Potts was prejudiced by his counsel's (alleged) tactical blunder in focusing suspicion on Moen and not a complete stranger, we reject Potts's claim he was denied effective assistance of counsel.
Finally, we conclude the overwhelming evidence of Potts's guilt allayed any alleged prejudice Potts may have suffered from his counsel's (alleged) tactical error in blaming Moen and not a complete stranger for the murders. (Cf. People v. Slaughter (2002) 27 Cal.4th 1187, 1219; People v. Ledesma (1987) 43 Cal.3d 171, 215-218.)
The evidence in the record shows, among other things, Potts was upset when Vienneau threatened to take him to court for paternity testing because she suspected (ultimately correctly) that Potts had tampered with the mail-in tests showing he was not Dean's father; Potts submitted Max's DNA for testing and not his own because Potts did not want to be the father of, or pay child support for, Dean; Potts had never told his parents or his fiancé about Vienneau, Dean and the possibility he could be Dean's father because Potts believed if that were true, it would ruin his life; Potts conducted myriad searches on the Internet—which he unsuccessfully attempted to delete from his computer—concerning murder and getting away with murder, performing choke holds and knocking people unconscious; Vienneau told her mother, friends and roommates days before, and on the day, she was murdered she and Potts were having dinner that night; a few days before her murder, Vienneau called Bohrer and asked Bohrer if she was available to babysit Dean on July 26 because Vienneau and Potts planned to have dinner together that evening; minutes before Vienneau's murder, Bohrer called and Vienneau confirmed she would be dropping off Dean shortly at Bohrer's apartment; on the night of her murder, Vienneau intended in "no uncertain terms" to tell Potts she would be seeking a court-ordered paternity test to determine if Potts was Dean's father; on the day she was murdered, Vienneau and Potts exchanged 26 text messages, including several messages shortly before Vienneau was murdered; in some of these messages—including those recovered by experts from Vienneau's cell phone sent from Potts's phone—he inquired of Vienneau whether she was alone in the apartment; before police confronted Potts with the cell phone evidence, Potts maintained he had not texted Vienneau on the day she was murdered and he had received only one message from Vienneau that same day; hours before she was murdered, Vienneau texted Potts confirming their dinner plans that evening and stating she was excited about the "surprise" Potts promised her; records show Potts called Vienneau's cell phone shortly before the murders; the cell tower evidence supports the finding that at 6:44 p.m. on the night of the murders, Potts was not at Max's residence; after the murders, Potts downloaded to his computer about 20 pages of cell phone records and altered on page 17 of those records only two entries concerning calls at 5:39 and 6:44 p.m. on the night Vienneau was murdered; Potts told police during police interviews that before her murder, Vienneau and not Potts had canceled their tentative plans to see each other; on the day she was murdered, Vienneau asked her mother if the clothes Vienneau intended to wear to dinner with Potts that evening were appropriate; and Potts claimed he went to Max's house between 5:00 and 8:00 p.m. on the night Vienneau was murdered because his own computer lacked software to view surveillance video taken of the Potts family home (in connection with newspapers being stolen from the house), even though Potts's computer had software installed on it that could view the video and was superior to the software available to Max.
On this record, we conclude there was no "reasonable probability" that, but for defense counsel's alleged deficiency in failing to have an expert examine Vienneau's cell phone before the defense accused Moen of the murders, the result would have been more favorable to Potts. (See People v. Vines, supra, 51 Cal.4th at pp. 875-876.) As such, we conclude Potts failed to establish the requisite prejudice for purposes of his claim of ineffective assistance of counsel.
C. Admission of Impeachment Evidence
Finally, Potts contends the trial court erred when it allowed, over his objection, the prosecution to impeach defense witness Curtis Corn (Curtis) with a 1985 federal conviction for tax evasion. Potts contends the trial court abused its discretion in admitting the prior because the court "gave no indication it had engaged in the balancing required by [Evidence Code] section 352 . . . and if it had, it would have excluded the prior as too remote to reflect probatively on the witness's credibility." Potts further contends that because Curtis's credibility was "crucial to appellant's alibi, the possibility that one or more jurors were swayed to downgrade [Curtis]'s credibility and disregard his exculpatory testimony based on the improper impeachment evidence makes the error prejudicial."
We reject Potts's contention the trial court abused its discretion when it admitted Curtis's 1985 conviction for tax evasion and conclude, in any event, any error or abuse of discretion in admitting the prior conviction was harmless. (See People v. Watson (1956) 46 Cal.2d 818, 836; People v. Mullens (2004) 119 Cal.App.4th 648, 658-659.)
Initially, we note the crime of tax evasion is relevant to a trier of fact's assessment of a witness's credibility. (See Evid. Code, § 780 [a "jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his [or her] testimony at the hearing, including but not limited to . . . (e) [h]is [or her] character for honesty or veracity or their opposites."]; see also People v. Harris (2005) 37 Cal.4th 310, 337 [a defendant may be impeached with past criminal conduct involving moral turpitude]; People v. Green (1995) 34 Cal.App.4th 165, 182 [subject to the trial court's discretion under Evidence Code section 352, article I, section 28, subdivision (f) of the California Constitution " 'authorizes the use of any felony conviction which necessarily involves moral turpitude, even if the immortal trait is one other than dishonesty[, for impeachment purposes].' [Citations.]"]; Windham v. Board of Medical Quality Assurance (1980) 104 Cal.App.3d 461, 469 [a conviction of federal tax evasion necessarily involves moral turpitude].)
In addition, Potts's argument notwithstanding we note there is nothing in the record to suggest the trial court failed to exercise its discretion when it ruled to admit as impeachment evidence Curtis's prior conviction. After the defense sought to exclude the prior because it was too remote in time, the prosecutor argued Curtis's prior should be admitted because it was for "tax fraud," Curtis allegedly possessed a "strong negative law enforcement bias" and he told detectives during the course of their investigation of his son Max and Potts he was not going to make any statements that incriminated Max. Thus, the prosecutor argued Curtis would likely testify in a manner that helped exculpate his son and the jury thus should have his prior conviction to assess fully Curtis's credibility.
The trial court sided with the prosecutor and observed Curtis's prior conviction for tax evasion went "right to the heart of the issue of [Curtis's] credibility." That the trial court did not expressly weigh the probative value of the prior against its potential to create undue prejudice or even expressly state on the record it has done so does not mean the trial court failed to exercise its discretion in making its ruling under Evidence Code section 352. (See People v. Crittenden (1994) 9 Cal.4th 83, 135 [" ' "the trial judge need not expressly weigh prejudice against probative value -- or even expressly state that he [or she] has done so." ' "].)
Although Curtis's conviction for tax evasion was 24 years old at the time he testified as a defense witness for Potts in 2009, characterizing that conviction as remote does not automatically render such evidence inadmissible for impeachment purposes. (See e.g., People v. Mendoza (2000) 78 Cal.App.4th 918, 925 ["convictions remote in time are not automatically inadmissible for impeachment purposes."].) Indeed, remoteness is only one of four factors a trial court may consider in deciding whether to admit a prior conviction, and included as one of those factors is whether the prior conviction "reflects adversely on an individual's honesty or veracity." (Id. at p. 925, citing People v. Beagle (1972) 6 Cal.4d 441, 453.) "These factors need not be rigidly followed." (Ibid.)
In determining whether to admit a prior conviction under Evidence Code section 352, a trial court should consider: " '(1) whether the [conduct] reflects adversely on an individual's honesty or veracity; (2) the nearness or remoteness in time of [the conduct]; (3) whether the conduct is for the same or substantially similar conduct to the charged offense; and (4) what the effect will be if the defendant does not testify out of fear of being prejudiced because of the impeachment by prior convictions. [Citation.]' " (People v. Green, supra, 34 Cal.App.4th at p. 182.) Because the prior was being used to impeach Curtis, some of the above factors did not apply to him.
Here, the record shows the trial court found Curtis's tax evasion conviction went directly to the heart of his honesty or veracity, a fact not disputed by Potts. Given that Curtis represented to detectives during their investigation of his son Max that he would not say anything to incriminate his son, and given that Max and Potts were charged with conspiracy to obstruct justice, we cannot conclude on this record that the trial court's decision to admit Curtis's prior exceeded all bounds of reason. (Cf. People v. Green, supra, 34 Cal.App.4th at p. 183 [admitting defendant's conviction dating back more than 20 years from the date of trial of defendant was a proper exercise of trial court's discretion because after the 20-year-old conviction defendant did not "lead a blameless life."].)
However, even if we concluded the trial court erred/abused its discretion when it admitted the 1985 prior, we conclude on this record that error/abuse of discretion was harmless.
The record shows the jurors were instructed with CALCRIM No. 226, as partially modified, informing them, among other things, it was required to determine the credibility of the witnesses and in making that determination it should consider whether a witness's testimony was influenced by factors "such as bias or prejudice"; "a personal relationship with someone involved in the case"; "a personal interest in how the case is decided"; or whether the witness had been convicted of a felony.
The jury was instructed under CALCRIM No. 226 as follows: "You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. You must judge the testimony of each witness by the same standards, setting aside any bias or prejudice you may have. You may believe all, part, or none of any witness's testimony. Consider the testimony of each witness and decide how much of it you believe. [¶] In evaluating a witness's testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are: "•How well could the witness see, hear, or otherwise perceive the things about which the witness testified? [¶] •How well was the witness able to remember and describe what happened? [¶] •What was the witness's behavior while testifying? [¶] •Did the witness understand the questions and answer them directly? [¶] •Was the witness's testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided? [¶] •What was the witness's attitude about the case or about testifying? [¶] •Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony? [¶] •How reasonable is the testimony when you consider all the other evidence in the case? [¶] •Did other evidence prove or disprove any fact about which the witness testified? [¶] •Did the witness admit to being untruthful? [¶] •Has the witness been convicted of a felony?
"Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently. [¶] If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest."
Potts's argument he potentially was prejudiced by the admission of Curtis's prior tax evasion conviction requires us to ignore several other relevant factors in CALCRIM No. 226 the jury also could have considered in assessing Curtis's credibility as a witness, not the least of which is that his son Max was also charged along with Potts in count 3 of the amended information of conspiracy to obstruct justice.
Jurors are presumed to follow instructions properly given absent a showing otherwise. (People v. Boyette (2002) 29 Cal.4th 381, 436.) Potts's suggestion the jury focused only on Curtis's 1985 conviction and ignored the other factors in CALCRIM No. 226 is pure speculation. Taking the instructions as a whole in the context of the overwhelming evidence of guilt (as discussed ante), we have little difficulty concluding it was not reasonably probable the verdict would have been more favorable to Potts in the absence of the alleged error. (People v. Watson, supra, 46 Cal.2d at p. 836.)
Finally, the record shows that even defense counsel recognized that Curtis's testimony was only marginally helpful to Potts's case. During closing, defense counsel argued to the jury there was sufficient evidence to support an alibi defense for Potts. In connection with that argument, defense counsel reminded the jury of Curtis's testimony that Potts's truck never left the "converted barn," where his son Max lived on the family property, between 5:00 and 8:00 p.m. on the night of the murders. Defense counsel then told the jury, "Now, if all [I] had to base [Potts's] alibi on [was] Curtis Corn, I wouldn't have a lot to stand on."
In addition, the record shows certain portions of Curtis's testimony was impeached, including his testimony that from his office he could see the converted barn where his son Max lived and that on the night of the murders he never saw Potts's truck move from where it was parked near the barn. Defense counsel also admitted during closing that Curtis was impeached regarding when people were at the house on the night of the murders.
Because the testimony of Curtis appears to have had limited probative value in connection with Potts's alibi defense, we conclude for this separate and independent reason any alleged error by the trial court in admitting Curtis's prior conviction was harmless. (See People v. Watson, supra, 46 Cal.2d at p. 836.)
DISPOSITION
The judgment of conviction is affirmed. The petition for writ of habeas corpus is denied.
BENKE, Acting P. J. WE CONCUR:
HUFFMAN, J.
O'ROURKE, J.