by METNEWS STAFF WRITER
Dec 05, 2017
SACRAMENTO, CA (Metropolitan News-Enterprise) - The Third District Court of Appeal yesterday reversed a conviction on two counts of second degree murder based on incompetence of counsel and directed the court's clerk/administrator to forward a copy of the opinion to the State Bar for possible disciplinary action.
It was the second time that the panel has referred Stockton attorney Ralph Cingcon to the State Bar based on inadequate pretrial efforts to muster expert evidence. In contrast to the denigration of Cingcon by Justice Elana J. Duarte, in her opinion for the appeals court, was effusive praise of him by the trial judge, San Joaquin Superior Court Judge William Johnson.
In the present case, Cingcon's client, Zane Ashik Ali, was convicted by a jury in accordance with the prosecution's theory that he was driving while drunk, resulting in a crash in which his two passengers were killed.
The defense was that it was one of the passengers who was at the wheel.
Following the conviction, new counsel, Edward Swanson and Cliff Gardner, substituted in as Ali's counsel, made a new-trial motion based on deficiencies in Cingcon's representation. They pointed to the availability of testimony by two accident reconstruction experts as to the likelihood that one of the passengers was, in fact, the driver.
Johnson denied the motion, saying: "Mr. Cingcon is a very experienced attorney. So, in looking at the books that he looked at, while he did not have an expert at his shoulder, he did review numerous books and has great trial experience. He decided to utilize the prosecution's expert, which is done routinely in this court. I see it done all the time with defense attorneys using the prosecution witness to make their points."
The judge indicated he was unimpressed by the experts' version of what happened, and noted that there was an eye witness who saw Ali in the driver's seat earlier.
Johnson said: "I do not believe that there is a lack of performance by Mr. Cingcon, therefore, I do not believe also that there was prejudice suffered by Mr. Ali, so I'm going to deny the motion."
He later clarified: "I think the evidence was overwhelming that Mr. Ali was the driver based on his testimony."
Disagreeing, Duarte wrote: "The trial court found Cingcon was "very experienced" and "has great trial experience." This factual finding is well-supported by the record. But the issue is not whether Cingcon is a good criminal defense attorney in general. The trial court's job (in the first instance) and our job (on review) is to determine whether in this particular case Cingcon did or did not provide constitutionally effective counsel. That an attorney has garnered many laurels over a long career does not mean he can rest on them in a given case."
With respect to Johnson's point that Cingcon had done some reading, she scoffed that this was no substitute for putting on expert testimony remarking: "[T]he fact that Cingcon reviewed parts of some books about accident reconstruction does not support the conclusion that he provided effective representation in this case."
Duarte dismissed the significance of it being common practice for defense lawyers to rely on cross-examining experts for the other side. She said: "As the Attorney General concedes, the expert trial evidence did not attempt to answer the one critical issue at trial: "Who was driving?" This undermines the view that Cingcon's decision not to ask the prosecution witnesses who was driving was tactical. He could not ask them that question because none were qualified answer it. In short, Cingcon's plan to rely on the People's experts under these specific circumstances was not an informed, rational, or tactical plan."
What was needed by the defense, Duarte said, was the sort of expert testimony that Swanson and Gardner proposed: based on "kinematics." She defined that as "body movement during crashes."
The jurist decried Cingcon's failure to produce such testimony, commenting: "In the nearly three years Cingcon had this case, he never talked to any kinematics expert - or any expert - on the merits.[T]he use of such testimony is not novel. Nor did Cingcon claim he was hampered by lack of funding. Therefore, had Cingcon looked for such evidence, he would have found it and could have presented it at trial."
She declared that Johnson's "conclusion that Cingcon performed within the standard of care cannot be squared with the record."
More, she said, is required than a showing of faulty performance to establish inadequate assistance of counsel. There must be, Duarte recited, prejudice, declaring:
"The prosecutor had emphasized in closing argument at trial the lack of 'kinetic' experts to support defendant's story. This was proper argument based on the evidence, but it highlights the prejudice caused by Cingcon's failure to consult a kinematics expert. Such testimony quite probably would have made a difference at trial."
In a footnote, Duarte told of the Third District's unpublished 2014 opinion in In re Gorman in which a murder conviction was reversed. There, she said, "we also found IAC based on Cingcon's failure to conduct an adequate pretrial investigation."
She went on to note: "Gorman is irrelevant to our legal analysis, but is relevant to our referral: Cingcon testified at the new trial hearing in this case that the State Bar 'summarily dismissed' our prior referral in Gorman. A thorough review by the State Bar of this court's second referral in three years is merited, regardless if the outcome. The cost to taxpayers and damage to public confidence in the judicial system by IAC reversals of serious criminal cases is incalculable."
That opinion was also written by Duarte. There, as in Ali's case, Cliff Gardner was the defendant's attorney in the Court of Appeal.
A promotional website says of Cingcon: "Ralph Cingcon, Attorney At Law, A Criminal Defense Lawyer. Some times referred to as Stockton's Silver Fox. He was established in 1980 as Stockton's the first Black Assistant District Attorney. He tried more cases than anyone in Stockton history. Incorporated in Stockton California, he has many accolades. Attorney Cingcon has an excellent work ethic, his experience and career history precedes him."
Yesterday's decision came in People v. Ali, C080387.
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