P. v. Huff

Filed 1/22/08 P. v. Huff 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

----

A jury found defendant Erick Reginald Huff guilty of attempted murder (Pen. Code,  187, subd. (a), 664),^[1]assault with a deadly weapon (a knife) ( 245, subd. (a)(1)), residential burglary ( 459), and robbery ( 211). The jury also found true allegations defendant personally inflicted great bodily injury in the commission of those offenses under circumstances involving domestic violence ( 12022.7, subds. (a), (e)); personally used a deadly and dangerous weapon (a knife) in the commission of the attempted murder, assault, and robbery ( 12022, subd. (b)(1)); and committed the burglary while a person other than an accomplice was present in the residence ( 667.5, subd. (c)(21)). The jury found defendant not guilty of severing a telephone line ( 591). In a bifurcated proceeding, defendant admitted a prior conviction ( 667, subd. (a)) and a strike prior ( 667, subds. (b)-(i), 1170.12).

Sentenced to state prison for 24 years, defendant appeals, contending the trial court prejudicially erred in admitting evidence concerning three prior incidents of domestic violence, and failing to clarify that the force used in a robbery must be used to effectuate that robbery, and as a result, his convictions for attempted murder and robbery must be reversed. We shall affirm.

FACTUAL BACKGROUND

A. The Underlying Offenses

In October 2004, Jeanetta Anderson lived with her cousins babys mother Tanya Kennedy at Kennedys apartment. Anderson was dating defendant, and they planned to move into an apartment of their own on November 2, 2004. The move-in costs for the apartment were approximately $612.

On November 1, 2004, Anderson purchased money orders totaling $612.50 and placed them in her purse.^[2] Defendant knew

she had the money orders because she showed them to him.

That evening, Anderson and defendant watched a movie at Kennedys apartment. Kennedy was not home, but she telephoned the apartment every 10 or 20 minutes to see if Andersons cousin had called. Kennedys calls angered defendant. He told Anderson he wanted his time, which meant he wanted to have sex. When Andersons cousin telephoned around midnight and Anderson answered, defendant punched Anderson in the face, blackening her eye and cutting her lip. Anderson told defendant to get out, and he eventually left.

At approximately 8:00 a.m. the next morning (November 2, 2004), defendant returned to Kennedys apartment. He said he had forgotten his wallet. Anderson retrieved his wallet while he waited outside. As she handed him his wallet, he told her that if he saw her with another man he was going to kill her and the other man. He also told her he had cheated on her. She responded by calling him a dirty dog and a nasty bitch, and he kicked in the door.

Anderson ran toward the telephone, intending to call 911; however, defendant snatched it and said, Bitch, you aint calling the police. He then told Anderson, Bitch, Im going to kill you, grabbed a butcher knife off the kitchen counter, and began stabbing her. After he stabbed her four times, the knife broke off in her arm. He then kicked her on her right side, grabbed her purse, which contained the money orders, and ran out the door.

After removing the knife blade from her arm, Anderson crawled down the steps towards a downstairs apartment. A neighbor found her there and called for help.

Anderson sustained numerous stab wounds to her arms and legs, including a five-inch-long deep cut to her right calf and a six-inch-long deep cut to her right thigh. She also suffered cuts to her hands while attempting to defend herself. She required a blood transfusion and was hospitalized for three or four days as a result of her injuries.

At approximately 9:00 a.m. that same morning, defendant was found hiding in some bushes in a field near Kennedys apartment. Andersons purse and the money orders were found in a duffle bag next to defendant.

B. Prior Acts of Domestic Violence

Prior to trial, the People moved under Evidence Code section 1109 to admit evidence regarding an incident in September 2004 (September 2004 incident). According to the People, the incident occurred while defendant and Anderson were living with Andersons adult niece, Shenelle Carter. [Carter] heard a thump coming from a bedroom. She went to investigate. She saw . . . Anderson and [defendant] inside the bedroom. [Anderson] had blood all over her face. [Carter] also observed blood on [Andersons] clothes, the wall, and the bed. [Defendant] admitted to [Carter] that he did it. Defendant conceded the September 2004 incident was admissible [s]ubject to foreseeable hearsay objections and the People establishing he and Anderson were in a domestic relationship. The trial court ruled the incident was admissible, finding [i]t would be close in time, and it sounds as if there is some witness that may testify to it. The court added, Of course, it may be hearsay objected to.^[3]

At trial, Anderson testified, without objection, concerning another incident that occurred in approximately August 2004, while she lived in an apartment on Howe Avenue (Howe Avenue incident). Defendant, who had been staying with Anderson seven days a week, punched her in the face several times, leaving her with a black eye, busted lip, and bruises. During cross-examination, Anderson denied striking or biting defendant during this incident. The parties later stipulated that [on] August 16, 2004, at 3:52 a.m. at [a residence on] Howe Avenue, [the] Sacramento County Sheriffs Department responded to a 911 hang-up call. The deputies knocked on the door, and a young girl answered. She was later identified as [A.S.]. [A.S.] pointed to the back bedroom and said, Theyre in there. [A.S.] opened the bedroom door and revealed a man standing just inside the door. He was identified as [defendant]. A female was standing behind him in the room. She identified herself as Jeanetta Anderson. [Defendant] had several human bite marks on the left side of his body, and [Andersons] face was covered in blood. The stipulation was read to the jury.

Carter testified concerning a third incident. During cross-examination, defense counsel asked her whether she had ever gotten mad at [defendant] before, and she responded: When he tried to make us hit other cars when he was choking [Anderson] . . . . Thats the only time I got mad at him (car incident). The People followed up on Carters testimony concerning the car incident during redirect. Without objection, Carter explained that sometime after the September 2004 incident, she, Anderson and defendant were riding in a car; Anderson was driving, and defendant was sitting in the passenger seat. Anderson and defendant began arguing, and defendant attempted to make the car run into other cars by pulling on the steering wheel. Defendant then attempted to choke Anderson, Anderson elbowed him, and they began fist fighting. Anderson eventually pulled over, and defendant got out and started walking.

C. The Defense

Defendant did not testify at trial. The defense did not dispute that defendant stabbed Anderson. Rather, the defense argued, among other things, that defendant (1) did not intend to kill Anderson when he stabbed her in her extremities; and (2) was not guilty of robbery because the force he used was not administered to effectuate the taking of the purse.

DISCUSSION

I. Evidence Concerning Prior Incidents of Domestic Violence

Defendant contends the trial court erred in admitting evidence concerning the September 2004 incident because [t]here was no evidence [he] was tried or convicted of this prior incident. He claims that he was prejudiced by the error in that [h]ad the jury not heard the evidence of the [September 2004] offense, it may well have agreed with the defense theory that since [Anderson] was cut only on her limbs, it showed that [defendant] did not intend to kill her. Defendant also contends the court erred in admitting evidence concerning the Howe Avenue and car incidents because those incidents had not been revealed to [defense] counsel [prior to] trial. He claims that he was prejudiced by the Peoples failure to disclose this evidence prior to trial because he thus had no chance to investigate and prepare cross-examination, or to present any rebuttal evidence concerning those incidents. He further asserts that by hearing evidence of even more violent acts, the jurys passions were likely inflamed. As we shall explain, defendant forfeited these claims by failing to preserve them for appellate review. Anticipating our ruling, defendant asserts that the failure to preserve the issues constituted ineffective assistance of counsel. Because defendant did not dispute that he stabbed Anderson, he cannot establish he was prejudiced by the admission of evidence concerning his prior acts of domestic violence. Accordingly, his ineffective assistance claim must fail.

A. Forfeiture

Defendant conceded at trial that evidence of the September 2004 incident was admissible, [s]ubject to foreseeable hearsay objections and the People establishing that he and Anderson were in a domestic relationship. At no point did he argue that the evidence was inadmissible because there was no evidence he was tried and convicted as a result of the September 2004 incident. By failing to do so, he forfeited this claim on appeal. (People v. Partida (2005) 37 Cal.4th 428, 435 (Partida) [If the court overrules the objection, the objecting party may argue on appeal that the evidence should have been excluded for the reason asserted at trial, but it may not argue on appeal that the court should have excluded the evidence for a reason different from the one stated at trial]; People v. Raley (1992) 2 Cal.4th 870, 892.)

Defendant likewise failed to object to the admission

of evidence concerning the Howe Avenue^[4]or the car

incidents.^[5] Again, his failure to object forfeits any claim he may have regarding the introduction of that evidence. (Partida, supra, 37 Cal.4th at p. 435; People v. Raley, supra, 2 Cal.4th at p. 892.)

B. Ineffective Assistance of Counsel

Defendant asserts the failure to object constituted ineffective assistance of counsel. In order to demonstrate ineffective assistance of counsel, defendant must show counsels actions were, objectively considered, both deficient under prevailing professional norms and prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) We need not determine whether counsels performance was deficient if we can dispose of the ineffectiveness claim on the ground of lack of sufficient prejudice. (Id. at p. 697 [80 L.Ed.2d at p. 699.) To establish prejudice, a defendant must show counsels errors were so serious as to deprive [him] of a fair trial, a trial whose result is reliable. (Id. at p. 687 [80 L.Ed.2d at p. 693].) As we shall explain, defendant cannot demonstrate prejudice and thus cannot establish a viable claim of ineffective assistance of counsel. The trial court instructed the jurors in accordance with CALJIC No. 2.50.02^[6]that if they were convinced by a preponderance of the evidence that defendant committed a prior offense involving domestic violence, they could, but were not required to, infer that he was likely to commit and did commit the crime . . . of which he is accused. The jury was further instructed that it could not consider this evidence for any other purpose. [A]ny possibility the jury might have misunderstood the purpose of [the prior acts] evidence was obviated by the limiting instruction, which we presume the jury understood and followed. (People v. Panah (2005) 35 Cal.4th 395, 492.)

When considered as a whole and in the context of this case, it is clear that the instructions reference to the crime . . . of which he is accused referred to the act of domestic violence of which defendant stood accused, namely, stabbing Anderson with a knife, and not the crime of attempted murder. Thus, the most the jury could have inferred from the evidence that defendant committed prior acts of domestic violence is that defendant was likely to and did stab Anderson, which is precisely what the People argued to the jury: [I]f you think by 51 percent or more that [defendant] committed the act of the choking [(the car incident)] or the head butting [(the September 2004 incident)] or the punching [(the Howe Avenue incident)] on the prior occasions, then what you are able to do, but you dont have to, you are permitted . . . to infer that he had the disposition towards committing further acts of domestic violence, like in this particular case. Defendant, however, did not (and does not) dispute that he stabbed Anderson. Accordingly, he cannot establish that he was prejudiced by the admission of evidence concerning the September 2004, the Howe Avenue or the car incidents, and his claim of ineffective assistance of counsel therefore fails.^[7]

Given our conclusion that defendant forfeited his challenge to the admission of evidence concerning his prior acts of domestic violence, and, in any event, cannot establish that he was prejudiced by its admission, his contention that the cumulative effect of the trial courts errors in admitting the evidence necessarily fails.^[8]

II. Instructions Concerning Use of Force in Robbery

Defendant asserts the trial court erred by failing, sua sponte, to clarify that the force used in a robbery must be used to effectuate the robbery. In defendants view, the trial courts instructions improperly permitted the jury to convict him of robbery based on a finding that he formed the intent to steal Andersons property after he stabbed her. Defendant, however, forfeited the issue by failing to object to the courts instructions or request a clarifying instruction. Anticipating our ruling, defendant again asserts that the failure to object or request a clarifying instruction constituted ineffective assistance of counsel. As we shall explain, the trial courts instructions concerning the use of force were adequate.^[9] Thus, defendants ineffective assistance claim must fail.

A. Forfeiture

If defendant wished a clarifying jury instruction on after-acquired intent, he should have requested it. (People v. Bolden (2002) 29 Cal.4th 515, 556-557 (Bolden) [it is incumbent upon a defendant to ask for amplifying instructions on after-acquired intent]; People v. Kimble (1988) 44 Cal.3d 480, 503 [sua sponte instructions are required as to the principles of law openly and closely related to the evidence; instructions amplifying an element of an offense are required only upon a request].) By failing to request a clarifying instruction, defendant forfeited the issue on appeal. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1140.)

B. Ineffective Assistance of Counsel

Defendant asserts the failure to object to the courts instructions or request a clarifying instruction constituted ineffective assistance of counsel. As noted, in order to demonstrate ineffective assistance of counsel, defendant must show counsels actions were, objectively considered, both deficient under prevailing professional norms and prejudicial. (Strickland v. Washington, supra, 466 U.S. at p. 687 [80 L.Ed.2d at p. 693].) In order to show trial counsels performance was deficient, defendant must show that counsel failed to act in a manner to be expected of [a] reasonably competent attorney[] acting as [a] diligent advocate[]. (People v. Pope (1979) 23 Cal.3d 412, 425.) Where, as here, the record fails to show why counsel acted or failed to act as he did, the contention fails unless counsel failed to provide an explanation upon request or there could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267; Pope, at p. 425.) There is a reasonable explanation for counsels alleged omission; thus, defendant cannot demonstrate his counsels performance was deficient, and his ineffective assistance of counsel claim must fail.

As defendant correctly notes, [t]o support a robbery conviction, the evidence must show that the requisite intent to steal arose either before or during the commission of the act of force. [Citation.] [I]f the intent arose only after the use of force against the victim, the taking will at most constitute a theft. [Citation.] The wrongful intent and the act of force or fear must concur in the sense that the act must be motivated by the intent. (People v. Marshall (1997) 15 Cal.4th 1, 34.)

Here, the jury was instructed with CALJIC No. 9.40, which defines the crime of robbery. As given, it provides in pertinent part:

Every person who takes personal property in the possession of another, against the will and from the person or immediate presence of that person, accompanied by means of force [or] fear and with the specific intent permanently to deprive that person of the property, is guilty of the crime of robbery . . . . [] . . . []

In order to prove this crime, each of the following elements must be proved: [] . . . []

4. The taking was accomplished either by force or fear; . . .

In Bolden, a capital case, the California Supreme Court rejected an argument that the jury instructions on the offense of robbery were inadequate because they failed to state that [the] defendants application of force must have been motivated by an intent to steal. (Bolden, supra, 29 Cal.4th at p. 555; see also id. at p. 556.) The court found that [t]he standard jury instructions on felony murder (CALJIC No. 8.21) and robbery (CALJIC No. 9.40), which the trial court . . . used to instruct the jury, adequately explain that for the crime of robbery the defendant must form the intent to steal before or during rather than after the application of force to the victim, and that the defendant must apply the force for the purpose of accomplishing the taking. (Bolden, at p. 556, italics added.)

The italicized statement in Bolden is what defendant claims was missing from the instructions in this case. (Bolden, supra, 29 Cal.4th at p. 556.) Bolden effectively held that the standard robbery instruction (CALJIC No. 9.40), which was given here, adequately covers the issue.^[10] (Bolden, at p. 556; see also People v. Tapia (1994) 25 Cal.App.4th 984, 1026-1028.)

The trial court need not give instructions which are covered by other properly given instructions. (People v. Tapia, supra, 25 Cal.App.4th at p. 1028.) Accordingly, the trial court did not err in failing, sua sponte, to clarify that the force used in a robbery must be used to effectuate that robbery.

Finally, we reject defendants contention that defense counsels failure to request a clarifying instruction constituted ineffective assistance of counsel. Given our analysis, counsel reasonably could have concluded that the courts instructions were adequate.

III.

We note a typographical error in the abstract of judgment. Item 1 of the abstract reflects that defendant was convicted of attempted murder and lists the Penal Code section numbers as 665/187(a). The correct section numbers are 664/187(a). We shall direct the trial court to correct the abstract accordingly.

DISPOSITION

The trial court shall prepare an amended abstract of judgment that sets forth the correct statutory violation for attempted murder, e.g., Penal Code sections 664 and 187, subdivision (a), and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

BUTZ , J.

We concur:

MORRISON , Acting P.J.

ROBIE , J.

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^[1] Undesignated statutory references are to the Penal Code.

^[2] Anderson explained that she had to purchase two money orders [b]ecause the money orders dont go over [$]500 at the check cashing place.

^[3] Prior to trial, the People also moved to admit evidence of two other prior incidents of domestic violence: The first involved Andersons sisters statements that defendant slapped Anderson on several unspecified occasions and threatened to kill her approximately two weeks before the incident at issue here; the second occurred on November 1, 2004, the day before the incident at issue here, and involved defendant striking Anderson in the face while she was talking on the phone. Defendant advised the court that he did not object to the admission of evidence concerning the November 1, 2004 incident, and the court ruled that such evidence was admissible. He did object to the admission of Andersons sisters statements, and they were not admitted.

^[4] To the contrary, he stipulated to the admission of evidence concerning the Howe Avenue incident. Defendant asserts that he was simply making the best of a bad situation. We need not decide whether the doctrine of invited error applies since defendant forfeited his right to challenge the admission of evidence concerning the Howe Avenue incident by failing to object to its admission at trial.

^[5] Evidence concerning the car incident was first admitted during defense counsels cross-examination of Carter. Thus, while the People are required to disclose the evidence to the defendant (Evid. Code,  1109, subd. (b)) of prior domestic violence to be introduced at trial prior to trial, absent a showing of good cause why a disclosure should be denied, restricted, or deferred (Pen. Code,  1054.7), they cannot be said to have violated the notice requirement where they do not introduce the evidence.

^[6] CALJIC No. 2.50.02 as given provides in pertinent part:

Evidence has been introduced for the purpose of showing that [defendant] engaged in an offense involving domestic violence on one or more occasions other than that charged in the case. [] . . . []

If you find that [defendant] committed a prior offense involving domestic violence, you may, but are not required to, infer that [defendant] had a disposition to commit other offenses involving domestic violence. If you find that [defendant] had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime or crimes of which he is accused. [] . . .[]

Unless you are otherwise instructed, you must not consider this evidence for any other purpose.

^[7] While there was also evidence that defendant kicked Anderson after the knife blade broke off in her arm, the People did not rely on the kicking as a basis for the attempted murder, assault or any of the other offenses for which he was charged.

^[8] To the extent defendant contends the admission of evidence concerning the September 2004, the Howe Avenue and the car incidents violated his right to due process, his contention fails because, for the reasons previously discussed, its admission did not make his trial fundamentally unfair. (Partida, supra, 37 Cal.4th at p. 436.)

^[9] Because we conclude the trial courts instructions were adequate, we need not address defendants assertion that he did not need to object in order to preserve the issue on appeal because the trial courts failure to instruct affect[ed] [his] fundamental rights.

^[10]The felony murder instruction (CALJIC No. 8.21) did not discuss the elements of robbery.