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C.A. Admonishes Defense Counsel for Unsupported, Unbecoming Attacks
Opinion Says Lawyer’s Arguments in Favor of Reversing Denial of Resentencing Were Unmerited Character Accusations Against Court, Prosecutor
By a MetNews Staff Writer
Div. Two of this district’s Court of Appeal on Thursday criticized a defense attorney’s arguments accusing a trial judge of being dishonest and unprepared, and the prosecutor of being arrogant, in an appeal from an order denying a motion for resentencing, saying that the attacks were unsupported and unbecoming of an officer of the court.
The remarks came in an unpublished opinion, written by Justice Brian M. Hoffstadt, affirming the denial of the petition for resentencing by Los Angeles Superior Court Judge Laura Laesecke. Acting Presiding Justice Judith Ashmann-Gerst and Justice Victoria M. Chavez joined in the opinion.
Appealing the denial was defendant Anthony Vigeant, who was convicted of murder for his part in the 2007 killing of David Pettigrew.
Vigeant and his cousin, Trevor Landers, were U.S. Marines stationed at Camp Pendleton Marine Base in San Diego County when they traveled with fellow Marine Ramon Hernandez to Pettigrew’s Long Beach apartment to confront him over a drug sale gone wrong. Vigeant and Landers told Hernandez that they wanted Pettigrew dead.
Hernandez, who had shrapnel in his brain and suffers from a diminished capacity to process information and feel empathy, shot and killed Pettigrew before fleeing the apartment with Vigeant and Landers.
In 2009, Vigeant was convicted of first-degree murder, attempted home invasion robbery, and first-degree residential burglary. Los Angeles Superior Court Judge Mark C. Kim sentenced him to an indeterminate term of life imprisonment without the possibility of parole.
Petition for Resentencing
Following the 2018 passage of Senate Bill 1437—which amends the definition of “murder” to preclude a jury from imputing malice solely from a defendant’s participation in a crime and provides procedures for filing petitions for resentencing for those convicted under the now-defunct theory—Vigeant petitioned to have his sentence vacated.
As amended, liability for murder is limited to persons who are the actual killer, who aid and abet with the intent to kill, or who are a major participant in an underlying felony and act with reckless indifference to human life.
On May 22, 2023, Laesecke held a hearing on the motion and found that Vigeant was not entitled to relief as sufficient evidence supported his conviction on two still-valid theories of murder liability—that he was a major participant, acting with reckless indifference to human life, in the attempted robbery of Pettigrew’s residence and that he directly aided and abetted the shooting with the intent to kill. The Court of Appeal docket indicates that Oakland-based attorney Michael W. Clough authored the opening brief and delivered oral argument on behalf of the defendant.
Three Categories
Hoffstadt said that “[d]efendant attacks the trial court’s ruling with three categories of arguments: (1) those attacking the ruling, (2) those attacking the trial court, and (3) those attacking the prosecutor” and noted that “defendant devotes very little time to the first category.”
Addressing the first class of arguments, he declared that “[s]ubstantial evidence supports the finding that defendant was a major participant” and that “defendant acted with reckless indifference to human life.”
Turning to the attacks on the trial judge, the jurist noted that Clough “accus[ed] [Laesecke] of being ‘confused,’ ‘clearly unprepared,’ slapdash, and dishonest.”
Clough cited Laesecke’s admission to not reading the entire transcript of the proceedings, his characterization that she lied about reading 200 pages of testimony over lunch, and his conclusion that her factual findings “read like what they were: a quickly slapped together justification of an order.”
Unpersuaded by the attacks, Hoffstadt wrote:
“[T]he trial court did not misstep, and defendant’s criticisms of the trial court’s conduct all lack merit. First, defendant cites no law obligating a trial court to re-read every portion of every prior proceeding in a criminal case before making a ruling on a pending [resentencing] case….To demand that a court spend days and days re-reading portions of the proceedings that both parties agree are not germane to a pending motion is to demand that courts waste finite and valuable time, and ignore the parties’ own representations to the court in this case.”
The justice continued:
“What is more, we know that the trial court actually read the transcript because it cited numerous portions of Hernandez’s testimony and referenced exhibits that do not appear in the parties’ summaries of that testimony. [D]efendant’s unprofessional and petty characterization of the trial court’s findings as ‘quickly slapped together’ overlooks that those findings track…the salient points necessary for a ‘thorough and reasoned consideration’ of the issues defendant’s petition presents.”
Attacks on Prosecutor
Hoffstadt said that “[d]efendant also levels several attacks on the prosecutor, including that he (1) incorrectly urged the trial court to rely on the factual summary from the Landers appellate decision, (2) improperly pressured the trial court to move forward on the hearing just because the victim’s family was in court, (3) improperly resisted the subpoenas for Hernandez and himself, and (4) acted in an ‘arrogant’ and ‘cavalier’ manner.”
As to these challenges, he remarked:
“[D]efendant’s arguments all lack merit on their own. First, because the trial court’s order is supported by the evidence in the trial transcript, any error by the prosecutor in urging the trial court to look to the factual summary in the appellate opinion was not prejudicial. Second, the hearing went forward because defendant also declined to ask for a continuance.
“Third, Hernandez was never subject to a subpoena, and the trial court denied defendant’s request to call the prosecutor because defendant failed to make a proffer that amounted to more than a ‘fishing expedition’; that the prosecutor moved to quash the subpoena against him orally (rather than in writing) is accordingly of no moment.”
He added that “we have reviewed the hearing transcript and do not see evidence of the prosecutor being either ‘arrogant’ or ‘cavalier’; but even if there were, at no point did the prosecutor—unlike defense counsel—cross the line into unprofessionalism.”
The case is People v. Vigeant, B331638.
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