Opinion
NOT TO BE PUBLISHED
Sup.Ct. No. 01F01700
MORRISON, J.
Beginning in August 2000, a group of young East Indian men picked up prostitutes on Stockton Boulevard in Sacramento, kidnapped and sexually assaulted them. Defendant joined the group on one outing. A jury convicted him of robbery (Pen. Code, § 211) and four counts of rape in concert, with kidnapping allegations (Pen. Code, §§ 264.1; 667.61, subds. (d)(2) & (e)(1)). The trial court sentenced defendant to 25 years to life in prison plus a determinate term of 24 years. On appeal defendant contends he was deprived of a fair trial because his trial counsel had a conflict of interest and provided inadequate representation by failing to present a defense of third party culpability. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Crimes
In the early morning of August 13, 2000, T.C. was walking down Stockton Boulevard; she claimed she was going to her mother’s home. A car with two men inside stopped and asked if she needed a ride. She said yes and got in. When the car kept going past her destination, T.C. got scared. The car stopped and picked up a third man. T.C. also noticed a dark-colored truck following them.
They stopped at Merritt’s Landing. The four men told T.C. to take off her clothes. They went through her pockets and took her money and jewelry. Then they took turns raping her.
After the assault, T.C. got dressed and got back in the car. They headed towards Sacramento. One man said he needed to use the restroom, so the car stopped. He got out, pulled T.C. out, and jumped back in the car. The car drove off.
T.C. walked to a trailer and told the couple inside she had been raped. The man called the police.
The Trial
Defendant was charged with five other men in a 79-count complaint alleging sexual assaults and other crimes against 10 victims. Defendant moved to sever his trial and the motion was granted. Defendant’s trial began five years after the crimes occurred. Defendant was originally represented by a court appointed attorney, but before trial his parents retained counsel for him.
The victim, T.C., proved a poor witness. She could not remember any details of the attack. She could not identify defendant as one of the assailants. She originally described the assailants as speaking Spanish. She admitted she had used cocaine and marijuana and drank two 24-ounce-malt liquors the night before the assault. During trial she appeared under the influence and the trial was stopped while she was tested for drugs. She tested positive for cocaine and her probation was revoked.
To bolster the case, the prosecution introduced Trisha’s statements to the woman who lived in the trailer as a fresh complaint. Her prior testimony in other proceedings and her statements to police were admitted as prior inconsistent statements. The trial court noted almost any statements could be so admitted given the various stories T.C. told.
There was no forensic evidence tying defendant to the crime. DNA analysis of a vaginal swab and a sample from T.C.’s t-shirt matched codefendant Rajnesh Narayan. A sexual assault examination showed redness and tenderness on the vaginal opening and T.C. had bruises on her legs. The findings were consistent with penetration.
The case rested to a large degree on defendant’s statements to police. The defense twice moved to exclude these statements because defendant had not been given proper advisements under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]. These motions were denied.
Defendant admitted both his presence at and participation in the assaults. He told the police he drove that night. Narayan had called him and said he needed a ride. He picked them up at Ravind Deo’s and Jasmeel Kumar brought his truck. They picked up a girl on Stockton Boulevard and the others told him to go to Freeport. They threatened the girl and she was crying. While the others had intercourse with the girl, defendant claimed he “just did a blow job[.]” He was scared and “very stupid[.]” Afterwards, on the way back to Sacramento, one of men said he had to go to the bathroom. When the car stopped, that man pushed the girl out and told defendant to go. Defendant was not sure if his brother was there that night. At one point defendant said his brother stayed in the car, “he’s like the religion guy.”
The defense was that the occurrences that night were acts of prostitution for which defendants did not pay, but ditched T.C. The defense attacked Trisha’s credibility and presented evidence that contradicted her testimony on various points, including that the car had power locks that the men used when she tried to open the door. Richard of she, a sociology professor, testified about false confessions, which can occur when the suspect feels helpless and powerless and the police use an evidence ploy, lying about evidence that ties defendant to the crimes, and provide motivators to confess. ofshe believed false confessions were very rare.
Motion for New Trial
After the jury returned verdicts of guilty, defendant got a new attorney who filed a motion for a new trial on the ground that defendant was denied a fair trial due to ineffective assistance of counsel. The motion alleged that trial counsel, Harlan Antler and Charles Bloodgood, had a conflict of interest because they were also representing defendant’s brother, Rayneel. This conflict prevented them from presenting a defense of third party culpability, that Rayneel, not defendant, was one of the assailants.
In support of the motion for a new trial, defendant presented his and his father’s declarations. These declarations stated that defendant’s parents, the Prasads, paid Antler $235,000. The Prasads told Antler not to involve Rayneel in the case because they did not want to lose both sons. They asked the attorney to do his best to defend defendant, but to protect Rayneel at all costs. According to the declarations, Antler agreed, told Rayneel to refer any questions from the police to him, and told the Prasads the case against defendant was weak and defendant would be acquitted.
The People opposed the motion, contending the declarations of defendant and his father were false; there was no conflict; and even if there was a conflict there was no prejudice. The prosecutor asserted there was a tactical reason not to offer up defendant’s brother as the perpetrator: it would not help defendant, but only show that the brother was also a criminal. If the defense had argued the brother was the fourth assailant, the testimony of Rajnesh Narayan would have been relevant rebuttal and the prosecution could have introduced either his testimony or his inconsistent statements to the police to show defendant accompanied the men several times on their sexual assaults.
In support of the opposition, the People offered declarations of Harlan Antler, his investigator, and his paralegal. Antler denied he ever told the Prasads that defendant would be acquitted or that there was an agreement to protect Rayneel. The Prasads had filed a complaint with the State Bar after trial; the complaint sought a refund of fees and made no mention of Rayneel. The Prasads thwarted defense attempts to contact Rayneel. Counsel originally believed a third party culpability defense might be viable, but once they determined defendant had participated in the assault they believed such a defense was not feasible or ethical. Nonetheless, Bloodgood conducted a vigorous cross-examination of both the victim and the investigating detective, eliciting evidence that the brother may have been present.
The declarations of the investigator and paralegal established the Prasads kept the defense from contacting Rayneel and the defense investigation established defendant participated in this assault and at least one other.
The trial court denied the motion for a new trial. Although there was considerable evidence supporting the view that five men were present, implicating Rayneel would not clear defendant. The court found defendant was “in this thing up to his neck” based on the evidence and his own statement. The court found there was no understanding to protect Rayneel. Further, even if there was a conflict, defendant was not entitled to a new trial. Defendant had admitted he was the driver of the car in which the victim was kidnapped, he was present during the rapes, and admitted he had the victim orally copulate him. His brother’s presence would not make a difference. Even if defendant did not have sex with the victim, he was still liable as an aider and abettor. Further, focusing blame on the brother could backfire as the prosecutor could introduce statements of codefendants implicating defendant in other attacks. A reasonable attorney would not open that “can of worms.”
DISCUSSION
Reciting in detail testimony, much of it elicited during defense cross-examination, that indicated five men may have been present at the assault, defendant contends he was deprived of a fair trial. He asserts his trial counsel had an actual conflict of interest because counsel was representing both him and his brother at the same time. Defendant contends this dual representation violated counsel’s duty of loyalty to defendant. (Flatt v. Superior Court (1994) 9 Cal.4th 275, 284.) He contends the trial court erred in denying the defense request for an evidentiary hearing to cross-examine trial counsel on why they failed to advance certain defenses and to make certain arguments. Finally, he contends he was denied effective assistance of counsel by counsel’s failure to present a third party culpability defense.
Defendant’s motion for a new trial was based on these same grounds. In effect, then, defendant is arguing that the trial court erred in failing to grant the motion for a new trial. “A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion. ‘“The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.”’ [Citation.]” (People v. Davis (1995) 10 Cal.4th 463, 524.) We find no abuse of discretion in the trial court’s ruling and so affirm.
I. Conflict of Interest
“A criminal defendant’s right to effective assistance of counsel, guaranteed by both the state and federal Constitutions, includes the right to representation free from conflicts of interest. [Citations.] To establish a violation of the right to unconflicted counsel under the federal Constitution, ‘a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.’ [Citation.] To establish a violation of the same right under our state Constitution, a defendant need only show that the record supports an ‘informed speculation’ that counsel’s representation of the defendant was adversely affected by the claimed conflict of interest. [Citations.]” (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1009.) Defendant has made neither showing.
The trial court found no actual conflict; it found trial counsel had not agreed to represent Rayneel. Defendant’s position was based on the declarations of him and his father that trial counsel agreed to keep Rayneel out of the trial and protect him at all costs. In contrast, Antler declared neither he nor Bloodgood ever represented Rayneel. Rayneel was not present at any of the meetings; indeed, they had never seen him.
The record supports the trial court’s resolution of the credibility conflict in favor of trial counsel. In considering whether there is a conflict of interest, “trial courts necessarily rely in large measure upon the good faith and good judgment of defense counsel.” (Cuyler v. Sullivan (1980) 446 U.S. 335, 347 [64 L.Ed.2d 333, 346].) Several considerations support relying on defense counsel: they are in the best position to determine if there is a conflict; they have an obligation to advise the court of any conflict; and as officers of the court their declarations are virtually made under oath. (Holloway v. Arkansas (1978) 435 U.S. 475, 485-486 [55 L.Ed.2d 426, 435].) Further, trial counsel had earned the court’s trust. After the verdicts, trial counsel reported to the court ex parte that defendant’s mother had asked about extradition laws in Fiji and later claimed Bloodgood told her she should get her son out of there. The trial court made a factual finding that both counsel “did an honorable, vigorous, energetic, intelligent job representing [defendant].”
Defendant was born in Fiji.
Defendant contends trial counsel’s representation of defendant was adversely affected by the conflict because “trial counsel was not an effective and vigorous advocate for Appellant. Though counsel knew that Appellant’s brother sexually assaulted [T.C.], because of their conflict they failed to investigate, present evidence, and argue it was Rayneel and not Appellant who committed this rape.” Defendant faults counsel for failing to do various things to implicate Rayneel in the crimes. He asserts counsel should have (1) shown T.C. a picture of Rayneel and asked if she recognized him as one of the assailants; (2) interviewed and subpoenaed Rayneel about the offenses; (3) obtained the testimony of codefendants, who had already been sentenced, about Rayneel’s involvement; and (4) obtained a DNA sample from Rayneel to see if it matched collected samples.
Defendant’s contention is premised on the assertion that if the jury had found Rayneel was one of the assailants, it had to acquit defendant. He contends he “gave his attorney information that constituted defenses to the charges.” As the trial court stated, this premise is false. Defendant was charged with robbery and four counts of rape in concert. The rape in concert statute “punishes persons acting in concert (together) who either personally commit the act or assist others in its commission.” (People v. Jones (1989) 212 Cal.App.3d 966, 969; original italics.) The jury was instructed on the liability of an aider and abettor as to all charges.
There was ample evidence that defendant was an aider and abettor, regardless of whether his brother was a perpetrator. An aider and abettor must act with knowledge of the criminal purpose of the perpetrator and with the intent to commit, encourage or facilitate the offense. (People v. Beeman (1984) 35 Cal.3d 547, 560.) Although defendant attempted to minimize his participation in his statement to the police, he admitted he facilitated the offenses. He told the police he drove that night; in response to Narayan’s request, he picked up Narayan and Deo and drove to Stockton Boulevard where they found their victim. He followed the instruction to drive to Freeport. He heard the others threaten the girl and someone mention a gun. The girl was crying and he knew she was scared. Defendant also knew about the robbery. He claimed he told the others, “If you guys took anything, take it away from my car.” Finally, he admitted he participated in the sexual assault; “I just did a blow job.”
Contrary to defendant’s assertion, any evidence linking Rayneel to the crimes would not exonerate defendant. As the trial court found, it would not help the defendant at all. Accordingly, trial counsel’s failure to aggressively implicate Rayneel did not adversely affect defendant’s representation and defendant fails to show trial counsel had a conflict of interest.
II. Ineffective Assistance of Counsel
Defendant contends he was denied effective assistance of counsel because trial counsel failed to investigate and present evidence of a third party culpability defense. Specifically, he contends trial counsel should have presented evidence from the detectives that a codefendant told them Rayneel participated in the sex offenses.
A defendant claiming ineffective assistance of counsel must first establish that “counsel’s representation fell below an objective standard of reasonableness.” “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” (Strickland v. Washington (1984) 466 U.S. 668, 688 [80 L.Ed.2d 674, 693].) Defendant must then establish prejudice. “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Id. at pp. 693-694.)
In arguing counsel should have presented evidence of third party culpability, defendant seizes upon language in People v. Jackson (2003) 110 Cal.App.4th 280, at page 289, that third party culpability evidence must, at a minimum, “tend to exclude the defendant as the perpetrator of the crime.” He argues evidence that Rayneel was the perpetrator would exclude him. Defendant is mistaken. At best, evidence implicating Rayneel would have eliminated defendant as a direct perpetrator, but, as explained above, would not have eliminated his liability as an aider and abettor. Trial counsel was not ineffective in failing to elicit evidence that would not have helped defendant’s case.
Any attempt to introduce statements of codefendant Narayan about who participated in the crimes would not have aided the defense, but could have hurt defendant. While Narayan told the police that Rayneel was present during the assault by the river, he confirmed that defendant engaged in oral copulation with the girl and that defendant was involved in several assaults. “He went a lot of times.” Trial counsel have wide latitude in making tactical decisions and we do not secondguess reasonable tactical decisions. (Strickland v. Washington, supra, 466 U.S. 668, 689 [80 L.Ed.2d 674, 694].) A decision not to pursue a course that offered no benefit -- and some risk -- to the client is entirely reasonable.
Defendant contends the trial court abused its discretion in denying him an evidentiary hearing at the motion for a new trial. Trial counsel and others had been subpoenaed and were present. Defendant sought to cross-examine them concerning why they failed to advance certain defenses or make certain arguments. This contention is made in a footnote to the statement of facts. An argument that is raised only in a footnote under a heading that gives no notice of the contention is forfeited. (People v. Crosswhite (2002) 101 Cal.App.4th 494, 502, fn. 5.) Moreover, defendant has not shown that trial counsel failed to present any defense that would have been meritorious. Defendant has failed to show ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, Acting P.J., HULL, J.