P. v. Hodge

Filed 11/28/07 P. v. Hodge CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury found defendant John Andrew Hodge guilty of discharging a firearm in a grossly negligent manner and being a felon in possession of a firearm. The trial court found true two prior conviction allegations and sentenced him to four years in prison.

Defendant appeals, raising the following two contentions: (1) the trial court abused its discretion in allowing the prosecutor to ask three of her witnesses leading questions; and (2) trial counsel was ineffective in failing to object to the $1,000 restitution fine and corresponding parole revocation fine. Disagreeing with these contentions, we affirm the judgment and order a minor correction to the abstract of judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Around 10:00 p.m. or 11:00 p.m. in June 2006, defendant was driving his Chevrolet Tahoe SUV through a residential area of Sacramento. Defendants friend Daniel Magee sat in the front passengers seat and Magees girlfriend, Lilly Chanthavong, sat behind Magee in the rear passengers seat.

As they came to an intersection near Magees house, a dark-colored Honda almost swerved into defendants SUV. The Honda then took off and defendant followed it to a home on Alamos Avenue, where the Honda parked. The home belonged to the mother of the driver of the Honda, Michael Raya. Also living in the home was Rayas sister, Virginia Breedlove.

Raya and defendant started arguing about the incident that had just occurred. Defendant asked why he had swerved at his SUV, and Raya responded, I didnt swerve the car. My car slid. Defendant told Raya, Ill slap you like a bitch and Im gonna fuck you guys up. Rayas mother ordered her son inside the house and told defendant to leave. Both men complied. As defendant was leaving, he told Raya, Im Lane Drive. Im gonna beat your ass. If I see you slippin Im gonna smoke your ass.

Defendant got back into his SUV and as he was driving away, he told Magee, they keep fucking with [me]. Defendant held a gun out of the drivers side window and fired four to five rounds in the air.

Three prosecution witnesses, Breedlove, Magee, and Chanthavong, told police that defendant had fired shots from his SUV. All recanted their stories at trial. Breedlove told police that she did not want her name in any police report because she was fearful of [defendant] and the Lane Drive Homies gang.

DISCUSSION

I

The Trial Court Did Not Abuse Its Discretion In Allowing The Prosecutor To Ask Three Of Her Witnesses Leading Questions

Defendant contends the trial court abused its discretion in allowing the prosecutor to ask three of her witnesses -- Magee, Chanthavong and Breedlove -- leading questions. We disagree.

A leading question is a question that suggests to the witness the answer that the examining party desires. (Evid. Code, 764.) A leading question may not be used on direct examination, except in special circumstances. (Id., 767.) One long established special circumstance is when the prosecution is faced with a hostile witness. (People v. Spain (1984) 154 Cal.App.3d 845, 853.) Witnesses may be shown to be hostile, for example, because of their relationship with the defendant (id. at p. 852 [the defendants mother]), or because their demeanor on the stand indicates they are inclined to favor the defense as much as possible (People v. Grey (1972) 23 Cal.App.3d 456, 464), or inclined to tell as little as [they] actually kn[o]w of the matter as possible (People v. Bliss (1919) 41 Cal.App. 65, 71). [A]ssessment of the circumstances revealing the witness hostility is uniquely within the realm of the trial court, and therefore the use of leading questions on direct examination is committed to the sound discretion of the trial court. (Spain, at p. 853.)

Here, the trial court was well within its discretion in allowing the prosecutor to ask Magee, Chanthavong, and Breedlove leading questions because they all could be considered hostile witnesses. Magee had been friends with defendant for about 18 years, from the time Magee was three years old. Chanthavong was Magees girlfriend of four years, had known defendant since winter 2005, and was aware that he was very close friends with Magee. Both Magee and Chanthavong told police that defendant had fired several shots from his SUV as they were driving away from Rayas house, but then recanted at the preliminary hearing and at trial. Similarly, Breedlove told police that defendant had fired several shots from his SUV but said she did not want her name in the police report because she feared gang retaliation, and at trial she also recanted. Under these circumstances, the trial court did not abuse its discretion in permitting the prosecutors use of leading questions with respect to these three witnesses.

II

Trial Counsel Was Not Ineffective For Failing To Challenge The $1,000 Restitution Fine And Corresponding Parole Revocation Fine

Defendant contends trial counsel was ineffective for failing to challenge the restitution fine of $1,000 and corresponding parole revocation fine, which were recommended by the probation officer and imposed by the court. Defendant notes that the probation officer had recommended a five-year prison term, which equated to a recommended $1,000 restitution fine and parole revocation fine under the statutory formula set forth in Penal Code section 1202.4, subdivision (b)(2). He argues that because the court imposed a four-year prison term, trial counsel should have argued for an $800 restitution fine and parole revocation fine, which would have been the recommended amount under the statutory formula for a four-year prison term. We reject defendants argument.

To prevail on a claim of ineffective assistance of counsel, defendant must establish his attorneys representation fell below professional standards of reasonableness and must affirmatively establish prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) A claim on appeal of ineffective assistance of counsel must be rejected if the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. (People v. Wilson (1992) 3 Cal.4th 926, 936, citing People v. Pope (1979) 23 Cal.3d 412, 426.)

Here, there is nothing in the record stating that either the probation officer or the court used the statutory formula

for determining the amount of the restitution fine. In this regard, the facts presented here are different than in People v. Le (2006) 136 Cal.App.4th 925, a case on which defendant relies, where the trial court stated it was ordering defendant to pay the restitution fine in the amount determined under the formula permitted by [section] 1202.4. (Le, at pp. 932, 935.) There is also nothing in the record that leads us to believe that counsels failure to object was not based on an informed tactical choice. Counsels focus during the sentencing hearing was to argue for the low term. Although the court sentenced him to the middle term, it was still one year less than the term recommended in the probation report, and counsel could have felt it would be a reasonable tactical decision to accept that sentence and the restitution fine recommended by the probation report and refrain from arguing with the court over $200. Accordingly, we reject defendants ineffective assistance of counsel claim.

III

The Abstract Of Judgment Must Be Corrected

As the People note, the abstract of judgment incorrectly recites that defendant must pay a restitution fine and a corresponding parole revocation fine of $1,00.00. The correct amount is $1,000. We will order the correction.

DISPOSITION

The judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting a restitution fine and parole revocation fine of $1,000 each and to forward a copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation.

ROBIE , J.

We concur:

DAVIS, Acting P.J.

BUTZ , J.

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