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People v. Mayfield1/2/1997
rt granted the motion, the court would reconsider its decision barring impeachment with the prior conviction for robbery. When the trial court indicated that it would permit impeachment with the robbery prior if the pending robbery charge was removed from the case by judgment of acquittal, the prosecutor stated he would "join in counsel's motion." Defense counsel then requested an opportunity to speak to defendant. The trial court granted the request. After speaking to defendant, defense counsel renewed the motion for judgment of acquittal, and the court granted the motion.
We reject defendant's claim of ineffective assistance of counsel based on the incident. Although the granting of the motion for judgment of acquittal permitted impeachment with the robbery prior, the record shows that counsel was well aware of this consequence and made a considered tactical decision after consultation with defendant. The record does not, however, provide an explanation for the challenged behavior, and the claim may be rejected on this ground. ( People v. Pope, (supra) , 23 Cal. 3d 412, 425.) Moreover, it is doubtful that defendant can demonstrate prejudice. The prosecutor joined in the motion for judgment of acquittal. Had the defense not brought the motion, it is reasonably probable that the prosecution itself would have moved to dismiss the robbery charge, as to which the evidence was clearly insufficient to support a conviction (Haverstick testified that he could not find his keys after the events in question, but he did not know who had taken them; he did not testify that defendant took the keys from his person or immediate presence by means of force or fear).
On direct examination by the prosecution, Tyrone Thomas stated that when defendant and Bell entered the service station, Thomas believed he had seen Bell earlier at the apartment complex in San Bernardino, and for this reason Thomas believed that Bell and defendant were pursuing him. Thomas stated that he was unsure whether he had really seen Bell at the apartment complex, although he was sure that he had seen Bell that night at a different location, a street corner that defendant later identified as the place where he had encountered Bell.
After this testimony, the trial was interrupted by the prosecutor's illness. When it resumed two weeks later, the prosecutor ended his direct examination by again asking Thomas whether he had seen Bell at the apartment complex in San Bernardino that night. Thomas answered: "Before I went in the front door I saw him." Defense counsel began cross-examination by asking Thomas whether he did or did not see Bell at the apartment complex that night. Thomas answered: "Yes, I did." Later, he testified that he had seen Bell when he first arrived at the apartment complex, and that Bell had been standing by a wall.
We reject the claim of deficient performance based on defense counsel's action in eliciting testimony from Thomas that he had seen Bell at the apartment complex. Thomas had given conflicting testimony on direct examination, stating first that he was not sure whether he seen Bell at the apartment complex, and then later, without equivocation, that he had seen Bell at that location. Counsel's question effectively pointed out this inconsistency, thereby undermining Thomas's credibility. Moreover, even assuming deficient performance, defendant has not demonstrated prejudice. Defendant argues that evidence placing Bell at an apartment complex where illegal drug transactions were common would implicate Bell in such transactions and, because Bell and defendant arrived at the service station together, the taint would necessarily affect defendant as well. But Thomas had already testified on direct
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