P. v. Faulk

















Filed 1/15/13 P.
v. Faulk CA6

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>NOT TO BE PUBLISHED IN
OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SIXTH APPELLATE DISTRICT




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THE PEOPLE, Plaintiff and Respondent, v. GREGORY N. FAULK, Defendant and Appellant.

H037333 (Santa Clara County Super. Ct. No. C1087170)

Defendant
Gregory N. Faulk appeals a judgment of
conviction following a jury trial during which he was found guilty of href="http://www.mcmillanlaw.com/">carjacking (Pen. Code, § 215), unlawful
taking of a car (Veh. Code, §10851, subd. (a)), and href="http://www.fearnotlaw.com/">second degree burglary (Pen. Code, §
459-460, subd. (b)).

On
appeal, defendant asserts the judgment must be reversed because he was denied
effective assistance of counsel during trial, because his counsel did not
request a modification of CALCRIM No. 350.
In addition, defendant asserts that the court improperly imposed a
five-year enhancement for each of his three prior serious felony convictions.

Statement of the
Facts and Case

In
the fall of 2010, defendant was homeless and went to the Hayes Mansion hotel
in San Jose to look for shelter. There,
he broke into the spa on the property by making holes in the wall of the hotel
gym, and reaching in to unlock the door to the spa. When the hotel staff arrived at the spa in
the morning of September
4, 2010, they discovered defendant inside. Defendant ran out of the spa and through the
hotel parking lot, eventually jumping a wrought iron fence into a condominium
or apartment complex.

A
few hours later, Huong Ho was at her parent’s condominium complex to check her
mail. She parked her Mercedes next to
the mailboxes. Ho tried to open her
mailbox, but was unsuccessful. Ho saw
defendant standing near the mailboxes, and began talking to him. Defendant told her he was the building
manager and that he had a master key to the mailboxes at his house. Defendant told Ho that he would open her
mailbox if she drove him to his house so he could get his master key. Ho agreed, and defendant got into her car and
gave Ho directions of where to go. As Ho
slowed down to stop her car where defendant directed, defendant suddenly
punched her in the eye, and ordered her to get out of the car. Ho got out of the car, leaving her cell
phone, purse, and shoes in the car.
Defendant sped away in Ho’s car.
Ho called the police using a phone of a nearby resident. When the police arrived, she gave a
description of defendant, and the police photographed the injury to her eye.

Defendant
abandoned Ho’s car almost immediately after driving away. He then took a 1992 Toyota belonging to
Trong Nguyen from 44 South Terrace
Court. Defendant abandoned the Toyota in a parking
lot of a shopping center on Monterey
Highway near Blossom Hill Road. Defendant used money from Ho’s wallet to buy clothes at Walmart
and Walgreen’s. Defendant changed his
clothes in the bathroom of the Walmart and a nearby Taco Bell. Police later found Ho’s wallet in the Taco
Bell bathroom, and arrested defendant at a nearby bus stop. Following his arrest, defendant’s blood
tested positive for methamphetamine.

Defendant
testified in his own defense at trial.
He essentially admitted all of the alleged crimes; however, he claimed
he never punched Ho, and did not use any force in taking her Mercedes. In
addition, defendant said that Ho asked him if he could get her some
methamphetamine, and agreed to drive him to a location where he could find the
drug. The two then smoked
methamphetamine together in the car, and when Ho got out of the car to put her
pipe into the trunk, defendant slid into the driver’s seat and drove away in
Ho’s car. Defendant said when he took
the car, there was no injury to Ho’s eye.

In
addition to his own testimony, defendant called several witnesses at trial who
testified that he was not a violent person.


In February
2011, defendant was charged by information with carjacking (Pen. Code, § 215;
count 1), unlawful taking of a car (Veh. Code, §10851, subd. (a); count 2), and
second degree burglary (Pen. Code, § 459-460, subd. (b); count 3). The information also alleged defendant had three
prior strike and serious felony convictions, and that defendant had served a
prior prison term. (Pen. Code, §§ 667, subds. (a)-(i), 1170.12; 667.5, subd.
(b)).

In
May 2011, a jury convicted defendant of counts 2 and 3, but hung on count
1. The court found the allegations of
defendant’s prior convictions true. A
second trial on count 1 was held in July 2011 during which a jury found
defendant guilty.

In
August 2011, the court struck two of defendant’s strike priors and sentenced
defendant to 23 year 8 months in prison.

Discussion

Defendant asserts the judgment must
be reversed because he was denied effective assistance of counsel during
trial. Specifically, he argues his
counsel was ineffective because he did not request a modification of CALCRIM
No. 350 to remove the language “evidence of defendant’s good character may be
countered by evidence of [his] bad character for the same trait.” In addition, defendant asserts that the court
improperly imposed a five-year enhancement for each of his three prior serious
felony convictions.

Ineffective
Assistance of Counsel

To prevail on a claim of
ineffective assistance of counsel, first, defendant must establish that “
‘counsel’s representation fell below an objective standard of reasonableness .
. . under prevailing professional norms.’
[Citations.]” (>People v. Ledesma (1987) 43 Cal.3d 171, 216, quoting Strickland v. Washington (1984) 466 U.S. 668, 688.) However, “[a] reviewing court will indulge in
a presumption that counsel’s performance fell within the wide range of
professional competence and that counsel’s actions and inactions can be
explained as a matter of sound trial strategy.”
(People v. Carter (2003) 30
Cal.4th 1166, 1211.) On direct appeal,
where the record “does not show the reason for counsel’s challenged actions or
omissions, the conviction must be affirmed unless there could be no
satisfactory explanation.” (>People v. Anderson (2001) 25 Cal.4th
543, 569.) In other words, defendant
bears a burden that is difficult to carry on direct appeal. (People
v. Lucas (1995) 12 Cal.4th 415,
436.) “[I]f the record sheds no light on
why counsel acted or failed to act in the challenged manner, we must reject the
claim on appeal unless counsel was asked for an explanation and failed to
provide one, or there could be no satisfactory explanation for counsel’s
performance.” (People v. Castillo (1997)
16 Cal.4th 1009, 1015.)

Second, defendant must show
prejudice. Specifically, defendant must show “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.” (Strickland v. Washington,
supra, 466 U.S. at p. 694; People v.
Staten (2000) 24 Cal.4th 434, 450-451.)

Finally, we note that we “need
not determine whether counsel’s performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged deficiencies. .
. . If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, which we expect will often
be so, that course should be followed.”
(Strickland v. >Washington, supra, 455 U.S. at p. 697.)

>CALCRIM No. 350

Defendant
asserts his counsel was ineffective, because he did not request removal of language
contained in CALCRIM No. 350. The
portion of the instruction at issue in this case is as follows: “Character of defendant: You have heard evidence testimony that the
defendant has a character for non-violence.
You may take that testimony into consideration along with all the other
evidence. [¶] In deciding whether the
People have proved the defendant’s character for non-violence can be itself a
reasonable doubt. [¶] However,
evidence of the defendant’s good character may be countered by evidence of his
bad character for the same trait. You
must decide the meaning and importance of the character evidence. . . .”

Defendant
asserts on appeal that the sentence, “evidence of the defendant’s good
character may be countered by evidence of his bad character for the same
trait,” should have been removed from the instruction, because no bad character
evidence was produced at trial. He
further argues his counsel was ineffective for failing to request modification
of the instruction to remove the bad character language.

Here, defendant
cannot establish prejudice from his trial counsel’s failure to request removal
of the language about bad character from the instruction. While it is true the
prosecutor did not present any evidence of defendant’s bad character, and a
request to remove the disputed portion of the instruction would surely have
been granted by the court, counsel’s failure to request such removal did not
prejudice defendant at trial. There was
clear evidence of defendant’s use of force to steal Ho’s car to support the
conviction for carjacking. Ho testified
that defendant punched her in the eye before he sped away in the car. When the police arrived to interview Ho, they
photographed the injuries to Ho’s eye, and the photographs were admitted into
evidence, corroborating Ho’s testimony of being punched. Defendant’s self-serving statement that Ho
was not injured when he took the car, and he had no idea how she was injured
lacked credibility.

Based on the
evidence at trial, there is no reasonable probability that the result in this
case would have been different had defendant’s counsel requested removal of the
bad character language from the pinpoint instruction under CALCRIM No. 350.

Enhancements for
Each of the Prior Serious Felony Convictions

Defendant
asserts the trial court erred in imposing three five-year enhancements for his
prior serious felony convictions.
Defendant argues his sentence should be modified and reduced by five
years, because two of the prior felony convictions were not “brought and tried
separately,” as is required for the separate enhancement under the
statute. Penal Code section 667,
subdivision (a), which provides in relevant part that, “any person convicted of
a serious felony who previously has been convicted of a serious felony . . .
shall receive, in addition to the sentence imposed by the court for the present
offense, a five-year enhancement for each such prior conviction on charges
brought and tried separately. The terms
of the present offense and each enhancement shall run consecutively.”

In >In re Harris (1989) 49 Cal.3d 131 (>Harris), the California Supreme Court
interpreted the phrase “ ‘brought and tried separately’ ” to mean “that the
underlying proceedings must have been formally distinct, from filing to
adjudication of guilt.” (>Id. at p. 136.) The Harris
court reasoned that the phrase used in section 667, subdivision (a) must have
the same meaning as similar language used in a predecessor habitual criminal
statute which the court, in People >v. Ebner (1966) 64 Cal.2d 297 (>Ebner), had interpreted as meaning that
the “prior felony proceedings must be totally separate, not only during
proceedings before trial but also as to those leading to the ultimate
adjudication of guilt.” (>Id. at p. 304.) “As explained in Ebner, there is ‘no distinction between an adjudication of guilt
based on a plea of guilt and that predicated on a trial on the merits.’ ” (Harris,
supra, 49 Cal.3d at p. 135.) In >Harris, the defendant had been charged
in a single complaint with two counts of robbery. After he was held to answer, the district
attorney filed two separate informations, each charging a single count. The defendant pleaded guilty to each
information and was sentenced on each information in the same proceeding. The Harris
court ruled that because the charges were made in a single complaint, they
were not “ ‘brought . . . separately,’ ” and therefore only one five-year
enhancement should have been imposed. (>Id. at p. 136.)

Defendant
asserts that while his two prior serious felony convictions for first degree
burglary (Pen. Code § 459), and unlawful driving (Veh. Code § 10851, subd. (a))
were originally brought under two separate felony complaints more than a year
apart, they were disposed of together by a negotiated concurrent sentence after
defendant waived preliminary hearing in both cases.

Defendant
acknowledges that this court’s opinion in People
v. Gonzales (1990) 220 Cal.App.3d 134 (Gonzales))
is contrary to his argument in this case.
In Gonzales, we held that
where convictions arise from unrelated counts or distinct accusatory pleadings
and are not consolidated, the charges are “brought and tried separately” under
section 667, subdivision (a), even if the defendant later negotiates a joint
disposition for all of his or her separate cases, pleads guilty to all of them
in a single proceeding, or is sentenced on his or her separate cases in a
single proceeding. (Gonzales, supra, 220
Cal.App.3d 134, 144.) Thus, in >Gonzales we held that calendaring all or
some of a criminal defendant’s cases for the same date and time does not
“effect a ‘de facto’ consolidation of cases.”
(Id. at pp. 140-141.)

Despite this
court’s holding in Gonzales,
defendant asserts we should reach a different result here, because the circumstances
of this case are “sufficiently distinguishable” from those in >Gonzales. Defendant places particular importance on the
fact that unlike Gonzales, here
defendant was represented by the same counsel in both cases, the cases did not
proceed with preliminary hearings,
and no separate informations were filed in superior court. Defendant asserts that under the “totality of
circumstances” as discussed in Gonzales,
his two cases were not “brought and tried separately” as required under Penal
Code section 667, subdivision (a).

We do not view
the difference in facts between the present case and Gonzales sufficient to necessitate a different result. We find no sentencing error in this case.

>Disposition

The judgment is
affirmed.









______________________________________

RUSHING, P.J.













WE CONCUR:













____________________________________

PREMO, J.













____________________________________

ELIA, J.