P. v Bronson
Filed 1/22/13 P.
v Bronson CA2/7
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
PAKI JOHN
BRONSON,
Defendant and Appellant.
B234085
(Los Angeles County
Super. Ct. Nos.
TA116671; BA341632)
APPEAL
from a judgment of the Superior Court of
County, Gary E. Daigh, Judge. Affirmed.
Tanya
Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
__________________
Paki John Bronson appeals the
judgment entered after he was convicted by a jury of corporal injury to a
threats, stalking, burglary, aggravated assault and dissuading a witness from
testifying in court. Bronson
contends the trial court erroneously admitted evidence of uncharged prior
incidents of domestic violence without considering whether they were unduly
prejudicial under Evidence Code section 352. He also challenges the court’s jury instructions
and aspects of his sentence. We affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
1. The
Information
Bronson
was charged in an information filed on March 11, 2011
with corporal injury to a former cohabitant (Pen. Code, § 273.5, subd. (a))
(§ 594, subd. (a)) (count 2), making criminal threats (§ 422) (counts 3, 7
& 8), first degree burglary (§ 459) (count 4), assault by means likely
to produce great bodily injury (former § 245, subd. (a)(1))
(§ 646.9, subd. (a)) (count 6) and dissuading a witness from testifying (§
136.1, subd. (a)(1)) (count 9).
Bronson pleaded not guilty to all charges.
2. The
Trial
Christyl
Hooks was Bronson’s girlfriend for nearly six years. The couple lived together until Hooks ended
the relationship in May 2009 after she could no longer tolerate Bronson’s
abuse. According to the evidence at
trial, Bronson, who was having difficulty accepting the break-up, harassed,
stalked, assaulted and threatened Hooks for more than two years after their
relationship ended.
a. Count 1
(corporal injury to a former
cohabitant), count 2 (
criminal threats to Hooks)
On October 24, 2010 Hooks was at a party with friends.
As she left the party to drive home, she saw Bronson crouched near the
driver’s side tire of her parked car holding a silver object. She noticed all four of her tires had been
slashed. Hooks screamed at Bronson, who
hit her in the face, pulled her hair and dragged her as she tried to hang on to
a gate. Hooks sustained scratches on her
face and bruises and scrapes on her arms but did not seek medical
attention.
While
Hooks drove home on flat tires, Bronson followed her, screaming that she could
not hide from him and warning her he was “going to fuck you up.†Hooks was scared because Bronson had hit her
on previous occasions; she understood his statement as yet another threat of
Bronson would follow through on his threat.
b. Count 4
(burglary)
In
May 2009 Hooks was home alone when her telephone started ringing “off the
hook.†According to Hooks, Bronson had
moved out of the apartment earlier that month and no longer kept his belongings
there. As soon as she unplugged her
telephone and turned off all the lights, Bronson began banging on the living
room door demanding to be let inside.
When Hooks refused to open the door, Bronson forced his way in through
her bedroom window. As Hooks heard
Bronson enter her home, she grabbed her purse and ran to a nearby alley. Bronson followed, screaming, “You fucking
bitch. . . . I want to
talk to you.†Hooks ran behind a trash
can. After Bronson found her, she rolled
her body into a ball to protect herself from Bronson’s blows. Bronson hit her, pulled her up off the ground
and yelled, “I’m going to fuck you up.
Get your stupid ass up. Look at
what you’re doing to me . . . . I want
to talk to you.†The People argued at
trial Bronson had entered the apartment with the intent to threaten Hooks or
assault her.
c. Count 5
(assault by means likely to cause
great bodily injury)
During
an argument in January 2009, Bronson put his hands around Hooks’s neck and
choked her hard. Hooks could not breathe
and thought she was going to die. She
escaped from Bronson’s grip and ran to the kitchen where she found a corkscrew
and stabbed Bronson twice in the arm to stop his attack.
d. Count 6
(stalking from June 1, 2009 through February 11,
2011)
While
Hooks was living alone in her apartment in Gardena from May 2009 through
October 2009, Bronson called her cell phone incessantly, banged on her
apartment window and showed up at her workplace numerous times threatening to
“fuck her up.†Each time Bronson
demanded that Hooks talk to him and would not leave until she called the
police.
After
Hooks moved to her mother’s apartment in November 2009, Bronson repeatedly came
to their home threatening to hurt Hooks unless she spoke with him. Bronson called Hooks incessantly at home and
at work, disrupting the office. Bronson
told Hooks during at least one of these calls he was “watching her†and he
would “fuck her up†if he found her with someone else.
During
this period, Bronson also appeared at her friends’ homes where she was
visiting, demanding to speak with Hooks and threatening her safety. On at least one occasion he followed Hooks
and her date in his car, screaming at them and threatening to hurt her.
In
February 2011, after Bronson was released from jail on bail following his
arrest on these offenses, he called
Hooks telling her, “Bitch, I got out of jail.
They fucking can’t keep me. I
told you, and I’m fucking going to get you, and you can’t keep parking your car
by that camera on your job. And I’m
going to get you, bitch. So you need to
watch yourself when you leave your job.â€
He told Hooks he was going to kill her.
e. Counts
7 and 8 (making criminal threats to
Valery Coleman)
In
April or May 2010 Bronson followed Hooks to her mother’s house where Hooks was
still living. Hooks’s mother, Valery
Coleman, called the police. While Hooks
fled, Coleman used her truck to block Bronson’s escape so he would be forced to
wait at the home until police arrived.
Bronson told Coleman he would “fuck Hooks up†unless she (Coleman) moved
her truck and allowed him to leave.
Coleman testified she took the threat seriously, believing Bronson would
immediately harm Hooks. (Count 7.)
In
late 2009 when Hooks was moving out of her apartment in Gardena, she called her
mother to come pick her up because Bronson was there and she was afraid. Later, at 3:00 in the morning, Bronson went
to Coleman’s apartment, kicked and hit the door and window and yelled that he
knew Hooks was inside and he was going to “fuck you all up.†(Count
8.)
f. Count 9
(dissuading a witness)
In
November 2010 Bronson, along with his friend, Christy, called Hooks at work
numerous times, telling her she better not go to court or they would “fuck her
up.†When Christy called on her own, she
indicated she was calling on behalf of Bronson.
Christy told Hooks, “Don’t go to court bitch. If you do, we will do what we did to you
before,†referring to an earlier incident when Christy and another woman had
attacked Hooks and vandalized her car while Bronson watched.
g. Bronson’s
testimony
Bronson
testified on his own behalf, offering a very different version of events.
Bronson denied ever hitting or threatening Hooks, explaining on each occasion
she described he had just had wanted to talk to her. He acknowledged attempting to call Hooks
repeatedly, sometimes 20 times a day, between December 2010 and
February 9, 2011 while he was in custody because he did not understand why
she was lying about him and “trying to put him in jail.†Bronson denied slashing Hooks’s tires or
attacking her on October 24, 2010, claiming he was at a club in Hollywood at
that time. He maintained he was still
living with Hooks at their apartment in Gardena in May 2009 at the time he
entered through the bedroom window. He
wanted to collect some of his things and to talk to Hooks. Bronson admitted he had had Christy call
Hooks on his behalf while he was in custody, but only to find out why she was
lying about him, not to threaten her. He
admitted telling Christy in a recorded telephone conversation while he was in
custody that he wanted “some box-cutter action on that bitch,†but explained
the comment referred to a desire to slash Hooks’s tires because he was angry
with her, not to slash her face.
Bronson also described Hooks as the aggressor in all of their
altercations.
3. The
Verdict and Sentence
The jury
acquitted Bronson on one of the two counts of making a criminal threat to
Coleman and found him guilty on all other charges. Bronson was sentenced to an aggregate state
prison term of 11 years four months.
DISCUSSION
1. The
Trial Court Properly Admitted Evidence of Uncharged Incidents of Domestic
Violence
uncharged incidents of domestic violence
Pursuant
to Evidence Code section 1109,
evidence of three uncharged incidents of domestic violence: In June 2008, after Hooks refused to answer
his calls, Bronson arrived at a nail salon Hooks was patronizing, took her
purse from her with her cell phone, dragged her by the hair out of the salon
and hit and shoved her in front of her young niece. Although police were called, Hooks did not
press charges because she was too embarrassed about the abuse.
In
February 2008 Bronson chased Hooks as she fled from her mother’s house to get
away from him. Fearing he was going to
hurt her, Hooks called the police and, pursuant to the dispatcher’s
instructions, drove to the nearest police station and reported the
incident.
In
February 2011, after Hooks testified at the preliminary hearing in this case,
Bronson addressed Hooks as she was returning to her seat from the witness stand
and told her in front of other witnesses, “I’ll fuck you up.â€
b. The
trial court expressly ruled the evidence of uncharged incidents of domestic
violence was admissible under Evidence Code 352
Bronson
contends the trial court erred in admitting these incidents without weighing
their potential for prejudice as required under Evidence Code sections 1109 and
352. The record shows otherwise. At an Evidence Code section 402 hearing, the
trial court expressly weighed the probative value and potential for prejudice
of each instance of uncharged domestic violence and ruled the incidents were
not unduly prejudicial under Evidence Code section 352.
2.
Bronson Has Forfeited His
Objection to Evidence of Other Uncharged Incidents of Domestic Violence by
Failing To Identify and Object to Them at Trial and Has Not Demonstrated the
Failure To Object Was the Result of Ineffective Assistance of Counsel
Bronson
argues several incidents of uncharged domestic violence were admitted into
evidence that were not considered at the Evidence Code section 402
hearing. Because Bronson did not make
this objection at trial, it has been forfeited.
(People v. Partida (2005) 37
Cal.4th 428, 434; People v. Romero (2008)
44 Cal.4th 386, 411 [“‘“[a]s a general rule, ‘the failure to object to errors
committed at trial relieves the reviewing court of the obligation to consider
those errors on appealâ€â€™â€].)
To
escape the forfeiture doctrine, Bronson contends his counsel was
constitutionally ineffective in failing to object to this evidence of prior
uncharged incidents of domestic violence.
“‘To establish ineffective assistance of counsel under either
the federal or state guarantee, a defendant must show that counsel’s
representation fell below an objective standard of reasonableness under
prevailing professional norms, and that counsel’s deficient performance was
prejudicial, i.e., that a reasonable probability exists that, but for counsel’s
failings, the result would have been more favorable to the defendant.’†(See
744-745; Strickland v.
Washington (1984) 466 U.S. 668, 694 [104 S.Ct. 2052, 80
L.Ed.2d 674] [same].)
Bronson
fails to identify any specific testimony he asserts his trial counsel should
have challenged. Because this failure
prevents us from meaningfully reviewing the contention, we do not consider
it. (See Mansell v. Board of Administration (1994) 30 Cal.App.4th 539,
545 [failure to cite to the record as required by Cal. Rules of Court, rule
8.204(a)(1)(C), makes the job of the reviewing court unduly burdensome;
appellate court is “not required to search the record†to determine whether
contains support for a party’s contentions on appeal]; Paterno v. State of California (1999) 74 Cal.App.4th 68, 106
[reviewing court is “not required to examine undeveloped claims[] [or] make
arguments for partiesâ€].)
name="_ftnref6" title="">[6] Moreover, as is often the case, the record is
silent as to the reasons for his counsel’s failure to object to any of the
proffered testimony, thus precluding any finding trial counsel’s actions were
constitutionally deficient. (See
Cal.4th 264, 266 [because record is often silent as to counsel’s reasons for
failing to object and there could be a plethora of possible tactical reasons,
ineffective assistance of counsel claims are generally more appropriately
litigated in habeas corpus proceedings where matters outside the four concerns
of the record may be considered].)
3
Court Did Not Err in Instructing the Jury with CALCRIM No. 207
The
trial court instructed the jury, in accordance with CALCRIM No. 207, the
charged offenses took place “on or about†a specific date, and “the People are
not required to prove that the crimes took place exactly on those days but only
that they happened reasonably close to those days.â€
erred in giving this instruction as to counts 1 through 5 because there was no
dispute as to the precise date each of those offense were alleged to have
occurred—October 24, 2010 (counts 1, 2 and 3), May 26, 2009 (count 4)
and January 27, 2009 (count 5)—and the error was prejudicial because it
unconstitutionally permitted the jury to find Bronson guilty of an uncharged
offense. He also claims the instruction
was particularly inappropriate for the October 24, 2010 offenses (counts 1
through 3) because he presented an alibi (his testimony that he was at a
nightclub) for that date.
name="_ftnref8" title="">[8]
Ordinarily,
the People need not plead the exact time of commission of an alleged
offense. (§ 995.) However, “when the prosecution’s proof
establishes the offense occurred on a particular day to the exclusion of other
dates, and when the defense is alibi (or lack of opportunity), it is improper
to give the jury an instruction using the ‘on or about’ language.†(People
v. Jennings (1991) 53 Cal.3d 334, 359; accord, People v. Richardson (2008) 43 Cal.4th 959, 1027 (
opportunity, “‘[a]n instruction [that] deflects the jury’s attention from
temporal detail may unconstitutionally impede the defense.’†(Richardson,
at p. 1027; accord, People v. Barney (1983)
143 Cal.App.3d 490, 497.) The
instruction may also be improper when there are numerous, similar uncharged
offenses that occurred within the same time period. (People
v. Gavin (1971) 21 Cal.App.3d 408, 418-419 [“on or about†instruction
was confusing and misleading because the defense was based on defendant’s
conduct on October 24, and instruction permitted conviction on a similar,
uncharged offense on September 26].)
When reviewing the merits of a claim of
instructional error, “‘“we inquire ‘whether there is a reasonable likelihood
that the jury has applied the challenged instruction in a way’ that violates
the Constitution.†[Citation.] In conducting this inquiry, we are mindful
“‘a single instruction to a jury may not be judged in artificial isolation, but
must be viewed in the context of the overall charge.’â€â€™â€ (People
v. Richardson, supra, 43 Cal.4th at p.
1028.) “‘Additionally, we must assume
that jurors are intelligent persons and capable of understanding and
correlating all jury instructions which are given.’†(Ibid.)
Here, considering the state of the
evidence and the instructions as a whole, we find no reasonable likelihood of
an impermissible application of CALCRIM No. 207. The jury was instructed in accordance with
CALCRIM No. 852 that the uncharged incidents of domestic violence in this case
occurred on or about February 16, 2008, June 20, 2008 and February
25, 2011, nowhere near the dates alleged for counts 1 through 5. Thus, it is not reasonably likely the jury
convicted Bronson based on the facts of the uncharged offenses.
Similarly, it is not reasonably likely the
instruction deflected the jury’s attention from Bronson’s alibi defense for
October 24, 2010 (counts 1 through 3), which he supported only by his own
testimony that he was at a club the night Hooks claimed he attacked and
threatened her. Contrary to Bronson’s
contention, there was sufficient temporal ambiguity in the evidence to justify
the instruction as to counts 1 through 3—Hooks testified the offenses alleged
in those counts occurred “about a month†after September 26, 2010—and Bronson’s
alibi was far from firm. In any event,
during closing argument the prosecutor expressly identified October 24,
2010 as the date the offenses charged in counts 1 through 3 occurred. Under those circumstances, the “on or aboutâ€
language of CALCRIM No. 207 was effectively rendered irrelevant. (See Richardson,
supra, 43 Cal.4th at p. 1028 [no error in giving “on or about†instruction
where defendant’s alibi was not “firm†and there was some temporal ambiguity in
the evidence as to when offense took place; “the prosecution’s subsequent
election during argument of a specific time period . . . did not render the
instruction erroneous so much as irrelevantâ€].)
4.
The Trial Court’s Instructions on
the Offense of Making Criminal Threats Did Not Mislead the Jury
Section
422 makes it a crime, under specific circumstances, to threaten another person
with a criminal act that will result in death or great bodily injury to the
person to whom the threat is communicated or to that person’s immediate family
member.
title="">[9] The trial court instructed
the jury in accordance with CALCRIM No. 1300 on the offenses of making criminal
threats: “The defendant is charged in
Counts 3, 7 and 8 with having made a criminal threat in violation of Penal Code
section 422. [¶] To prove that the defendant is guilty of this
crime, the People must prove that: [¶] 1. The defendant willfully
threatened to unlawfully kill or unlawfully cause great bodily injury to
Christyl H. in Counts 3 & 7 and Valery Coleman in Count 8; [¶] 2. The defendant made the threat
orally; [¶] 3. The defendant intended
that his statement be understood as a threat; [¶] 4. The threat was so clear, immediate,
unconditional, and specific that it communicated to Christyl H. and to Valery
Coleman a serious intention and the immediate prospect that the threat would be
carried out; [¶] 5. The
threat actually caused Christyl H. and Valery Coleman to be in sustained
fear for her own safety or for the safety of her immediate family; AND [¶]
6. Christyl H.’s fear and Valery Coleman’s fear was reasonable under
the circumstances. . . .â€
Bronson contends the instruction was confusing because, without
separately identifying which of the two women was the victim in each count,
that is, the person to whom the threat was communicated, the instruction
unlawfully permitted the jury to convict Bronson of making a criminal threat
directly to Hooks rather than to Coleman in count 7.
be susceptible to the interpretation Bronson advances if considered in
isolation, jury instructions must be considered in light of the entire record
to determine whether it is reasonably likely the jury was misled. (People
v. Cross (2008) 45 Cal.4th 58, 67-68; People
v. Hernandez (2010) 183 Cal.App.4th 1327, 1332.) Here, when considered in light of the entire
record, it is not reasonably likely the jury would have interpreted the
instruction in the manner Bronson suggests.
The evidence in support of count 7, which was highlighted by the
prosecutor during closing argument, was that Bronson made the threat to Coleman
after Hooks had left the scene. He told
Coleman that he would “fuck Hooks up†unless Coleman immediately moved her car
that was blocking him from following Hooks.
This is not a case, therefore, where the evidence relating to count 7
allowed for two possible victims. In any
event, the verdict forms provided to the jury specifically identified the
particular victim for each count, thus making absolutely clear that Hooks was
the victim in count 3 while Coleman was the victim in count 7. There was no instructional error. (See People
v. Hughes (2002) 27 Cal.4th 287, 377 [court evaluated instructions
read together with verdict form to reject defendant’s contention language in
instructions was misleading or confusing].)
5.
654
Section 654 prohibits punishment for two or more offenses arising
from the same act or from a series of acts constituting an indivisible course
of conduct. (People v. Lewis (2008) 43 Cal.4th 415, 419; People v. Latimer (1993) 5 Cal.4th 1203, 1216.)
conduct is divisible and therefore gives rise to more than one act within the
meaning of section 654 depends of the intent and objective of the actor. If all of the offenses were incident to one
objective, the defendant may be punished for any one of the offenses but not
more than one. (People v. Correa (2012) 54 Cal.4th 331, 336.)
Generally, the trial court has broad
discretion in determining whether a defendant had multiple criminal objectives
independent of, and not merely incidental to, each other for purposes of
section 654. On appeal we will uphold
the court’s express or implied finding a defendant held multiple criminal
objectives if it is supported by substantial evidence. (People
v. Osband (1996) 13 Cal.4th 622, 730-731; People v. Blake (1998) 68 Cal.App.4th 509, 512.)
Bronson contends his sentences on counts 1
(corporal injury to a former cohabitant), 2 (vandalism) and 3 (making criminal
threats) should have been stayed under section 654 because each of those
offenses, committed on October 24, 2010, was part of the same course of conduct
that comprised the stalking offense in count 6. The record in this case fully supports the
trial court’s sentencing decision.
Bronson’s acts of criminal vandalism and
corporal injury to a former cohabitant (counts 1 and 2) are wholly separate
from the stalking offense with independent objectives and separate
intentions. Plainly, one need not
inflict physical harm on another person or damage her property to stalk a
victim. (See People v. Ewing (1999) 76 Cal.App.4th 199, 210 [elements of
stalking are the (1) willful, malicious and repeated harassment of another
person and (2) making a credible threat (3) with the intent to place that
person in reasonable fear for his or her safety or the safety of his or her
immediate family]; § 646.9.)
As for count 3’s charge of making a
criminal threat, substantial evidence supported the court’s implied finding the
stalking offense was separate from the criminal threat made directly to
Hooks. That threat, in count 3, in which
Bronson told Hooks as he followed her home that he would “fuck her up,†was a
singular act intended to immediately frighten her. The stalking offense, in contrast, was
comprised of a series of repeated acts over a lengthy period of time, some
immediately threatening, some not, intended to engender a prolonged state of
fear and intimidation. (See
1426, 1440 [unlike a threat defined by § 422, a threat for purposes of
stalking statute does not require any communication; stalking as defined in
§ 646.9 may be implied by a prolonged pattern of conduct designed to
intimidate]; see generally People v.
Ewing, supra, 76 Cal.App.4th at p. 210.)
Bronson
alternatively argues the sentence on counts 2 and 3 should be stayed because
the acts charged were all part of an indivisible course of action that
supported his corporal injury conviction.
This contention also lacks merit.
Vandalism does not share an objective or intent with either corporal
injury or making criminal threats, and the sentence for that offense was not
subject to a stay under section 654.
Under some circumstances, where the threat was made at the same time and
as part of the infliction of the corporal injury, those two offenses may be
sufficiently interconnected that a stay of the sentence for making a criminal
threat is mandated by section 654. (Cf.
1412, 1425 [defendant sentenced to indeterminate life term for torture;
sentences for making a criminal threat and inflicting corporal injury on a
spouse stayed pursuant to § 654].) Here,
however, Bronson injured Hooks when he dragged her as she tried to hold on to a
gate to protect herself from him. He did
not make the criminal threat until after Hooks broke free of his grasp, got in
her car and attempted to flee. This
evidence amply supports the trial court’s implied finding Bronson had distinct
objectives when he inflicted corporal injury on Hooks and made a criminal threat.
The judgment is affirmed.
PERLUSS,
P. J.
We concur:
ZELON, J.
JACKSON, J.
indicated.
former Penal Code section 245, subdivision (a)(1), provided, “Any person
who commits an assault upon the person of another with a deadly weapon or
instrument other than a firearm or by any means of force likely to produce
great bodily injury, shall be punished by imprisonment in the state prison for
two, three, or four years, or in a county jail for not exceeding one
year . . . .â€
(Stats. 2004, ch. 494, § 1, p. 4040.)
Effective January 1, 2012 former subdivision (a)(1) of section 245 was
divided into two separate and distinct subdivisions: section 245, subdivision (a)(1), now
prohibits assault with a deadly weapon or instrument other than a firearm, and
new subdivision (a)(4) prohibits assault by means of force likely to produce
great bodily injury. (Stats. 2011, ch.
183, § 1.) According to the Report
of the Assembly Committee on Public Safety, the purpose of this change was to
permit a more efficient assessment of a defendant’s prior criminal history
since an assault with a deadly weapon qualifies as a “serious felony†(see Pen.
Code, § 1192.7, subd. (c)(1)), while an assault by force likely to produce
great bodily injury does not. (Assem.
Com. on Pub. Safety, Analysis of Assem. Bill No. 1026 (2011-2012 Reg.
Sess.) as introduced Feb. 11, 2011; see People
v. Brown (2012) 210 Cal.App.4th 1, 5, fn. 1.)
