P. v. Jeanlouis

Filed 8/24/09 P. v. Jeanlouis CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Defendant Judlin Jeanlouis appeals a judgment entered upon a jury verdict finding him guilty of two counts of robbery in concert (Pen. Code,[1]  211, 213, subd. (a)(1)(A)), burglary of an occupied dwelling ( 459), assault ( 240) and battery ( 242), and receiving stolen property ( 496, subd. (a)). He contends on appeal that he was deprived of the effective assistance of counsel and that the trial court committed sentencing error. We shall reverse the conviction of assault ( 240) and order the trial court to dismiss the offense and to amend the abstract of judgment both to reflect the dismissal and to rectify a clerical error. In all other respects, we shall affirm the judgment.

I. BACKGROUND

Jeffrey Johnson lived in his home with his caregiver, Jesse Madison. Johnson suffered from [d]elusional psychotic paranoid schizophreni[a],[2] and he grew marijuana for medicinal use, to help him calm down.

On the evening of October 24, 2007, defendant, whom Johnson and Madison knew, and two other men, whom they did not know, came to Johnsons front door. They told him someone else was in the car, and Johnson invited them to bring him inside. Defendants two companions went outside, then kind of stormed back inside the house with pistols drawn. All three men were wearing gloves, but defendant did not have a gun. One of the unknown men told Johnson and Madison, Youre getting jacked, fool, get on the ground, and Madison was hit twice in the head with a gun. The men asked Johnson where his marijuana was, and he told them. They taped Madisons hands and feet together with duct tape, and tried to tape Johnson as well, but he resisted.[3] During the struggle, defendant took a pool stick and hit Johnsons head with it. Defendants companions threatened to shoot and kill Johnson.

The men went to Johnsons bedroom and took marijuana from it. Defendant hit Johnson in the head with the pool stick and asked repeatedly for more marijuana. The men went through the house; and in addition to the marijuana, they took the lights and ballasts Johnson used for growing marijuana, cell phones, a laptop computer, a Play Station, a stack of DVDs, tools, money, and other items.

In the home defendant shared with his uncle, Edward Attwood, a police officer found the laptop computer in its bag, Johnsons and Madisons cell phones, a small amount of marijuana, and two knit gloves with what appeared to be marijuana on them.

Attwood testified that at about 8:30 on the evening in question, defendant was outside their home with a friend named Virgil. Another man Attwood did not know drove up and came inside with defendant. Defendant and the other man went outside, then defendant came back for his gloves, which he found under a sofa, and asked Attwood for duct tape, saying he needed it to help Virgil fix his speaker wires. Defendant and the other men left. Defendant returned shortly after 10:00 p.m. When he came into the house, he was not carrying anything. The next day, Attwood saw a laptop computer bag in the living room, and defendant said it belonged to him.

In an interview with a police officer the day after the incident, defendant said that when he and two friends were at Johnson and Madisons house, a fight broke out, which defendant believed resulted from Johnson calling one of his friends, Jeremy, a nigger. He acknowledged that Johnson had been hit in the head with a pool cue, but denied that he and his companions had guns with them. He acknowledged having the laptop bag, but initially said he believed the laptop belonged to Jeremy. When asked whether he had stolen the computer, he said, Well, I had the bag, you know what Im sayin. I had the bag, I cant say I, I didnt, you know what Im sayin. When pressed, defendant said, I didnt deny it though, you know what Im sayin. I didnt deny it. Yeah I fuckin had the bag, you know what Im sayin. Wrong place at the fuckin wrong time. So I cant, you know what Im sayin, I cant change that shit. The officer encouraged him to tell the truth about what happened, and he replied, Im telling the truth. I had, I had the fucking bag, what else am I gonna say? He said he had duct tape in order to connect some speakers, but they used it on him. He denied having taped anyone himself. He admitted that he took some of that weed.

Defendant testified at trial that some acquaintances of his came to his home in an SUV on October 24, 2007, and told him they wanted to buy speakers to put in the vehicle. In the back of the SUV was a leaking battery, and defendant got some gloves from the house and moved the battery. Defendant and the others, whose names were Alvin and Jeremy, went to the home of a friend of defendants to get speakers. The friend was not home, and the group drove until they came to the home of Johnson and Madison. When they got there, Johnson appeared intoxicated and belligerent. Defendant asked to speak with Madison, who he believed might be able to help him get the speakers. Defendant and his companions went inside, and the group smoked marijuana. Johnson offered to sell defendant and his companions his pool table and his laptop, and Jeremy bought the laptop.[4] According to defendant, Johnson said he wanted the money to buy cocaine.

Defendant testified that at some point, he went into the bathroom, and he heard a door shut. He wondered aloud whether his friends had left, using the word niggers in his statement, and Johnson began mocking him, using the same word. Jeremy took the money and a beer bottle from Madisons hand, Alvin knocked [Madison] out, and Jeremy struck Johnson in the head with a pool cue. No one pulled out a gun. Alvin put duct tape on Madisons face. Defendant tried to break up the fight, and did not assault anyone or hit anyone with a pool cue. The only time defendant went into another room of the house was when, at Madisons request, he went into Madisons bedroom to get marijuana. He did not recall taking the laptop or cell phones out of the house, but got the laptop from his friends later because they wanted to return it to Johnson and get their money back. At that time, he noticed the cell phones in a zippered compartment.

The jury convicted defendant of separate counts of robbery in concert for each victim ( 211, 213, subd. (a)(1)(A)) (counts I and II), burglary of an occupied dwelling ( 459) (count III), assault ( 240) and battery ( 242) (count V), and receiving stolen property ( 496, subd. (a)) (count VI). The assault and battery convictions in count V were lesser included offenses of assault with a deadly weapon, to wit, a pool cue ( 245, subd. (a)(1)), of which defendant was found not guilty. The jury found defendant not guilty of assault with a firearm ( 245, subd. (a)(2)) (count IV), and not true special allegations that defendant was armed with a firearm in connection with counts I, II, and III ( 12022, subd. (a)(1)). The trial court sentenced defendant to a total prison term of 11 years.

II. DISCUSSION

A. Ineffective Assistance of Counsel

Defendant contends his counsel rendered constitutionally ineffective assistance through questioning defendant in a manner that led to the disclosure of the nature of defendants prior convictions, or through failing to object effectively when the prosecutor asked defendant to identify the crimes of which he had previously been convicted.

Before trial, the People moved in limine to admit impeachment evidence of defendants prior misdemeanor convictions of carrying a loaded firearm ( 12031, subd. (a)), threatening with a weapon ( 417), and second degree burglary ( 459). The court and defendant expressed concern about the prejudice that could be caused by the similarity of the convictions to the allegations in the present case, and the court ruled that the People could use the evidence that defendant had suffered prior misdemeanor convictions, but that the questioning must be limited to referring to the offenses as misdemeanor crimes of moral turpitude, rather than referring to the specific crimes of which defendant had been convicted.

At the end of defense counsels direct examination of defendant, the following exchange occurred: Q. Mr. Jeanlouis, lets level with the jury, you have been in trouble with the law before? [] A. Yes, sir. [] Q. And in fact, youve been convicted of three misdemeanor offenses? [] A. Yes, sir. [] Q. Now, one of them you wereisnt it true that in 2005 you were convicted of a misdemeanor violation of Penal Code section 12031, Subdivision (a)? [] A. Yes. [] Q. And isnt it also true that in 2006 you were convicted of a misdemeanor violation of Penal Code section 417? [] A. Yes, sir. [] Q. And isnt it also true that in 2006 you were convicted of a misdemeanor violation of Penal Code section 459? [] A. Yes, sir. The prosecutor began his cross-examination by asking defendant, what does a violation of Penal Code section 12031 entail? Defense counsel asked to approach; and after an off-the-record bench conference, the prosecutor elicited from defendant that in 2005 he had been convicted of carrying a concealable firearm ( 12031, subd. (a)), and that in 2006 he had been convicted of commercial burglary ( 459) and brandishing a knife ( 417).[5]

Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsels performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsels deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, but for counsels failings, defendant would have obtained a more favorable result. [Citations.] (People v. Dennis (1998) 17 Cal.4th 468, 540-541.) Reviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsels omissions. [Citation.] (People v. Lucas (1995) 12 Cal.4th 415, 442.) If a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsels performance was deficient. [Citation.] (People v. Mayfield (1997) 14 Cal.4th 668, 784.) Prejudice is established when counsels performance  so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.  (Ibid., quoting Strickland v. Washington (1984) 466 U.S. 668, 686.) Prejudice must be proved as a demonstrable reality, not simply speculation. (People v. Williams (1988) 44 Cal.3d 883, 937.)

We need not consider whether defense counsel acted improperly, because defendant has failed to show that his counsels actions prejudiced him. The evidence against defendant was strong. Johnson and Madison knew defendant, and his identity was not at issue. The accounts Johnson and Madison gave of the attack were largely consistent with each other, and were corroborated by the physical evidence of the duct tape on their pants. The day after the incident, defendant had Johnsons laptop computer and the two victims cell phones in his bedroom, as well as gloves with marijuana on them, and he told his uncle untruthfully that the computer bag belonged to him. When interviewed by a police officer, defendant gave a confusing account of events, but acknowledged that he took some of that weed. In response to the officers question about whether he had stolen the computer, he acknowledged that he had the bag and that he cant say I, I didnt, and that he was in the wrong place at the wrong time. We also note that, although two of defendants prior offenses involved weapons, the jury found not true the firearm allegations and found defendant not guilty of assault with a deadly weapon. The strong evidence of defendants guilt and the indication that the jury considered the evidence carefully persuades us that there is no reasonable probability that the result would have been more favorable to defendant if his attorney had acted differently.

In reaching this conclusion, we recognize that admission of evidence of prior offenses may cause prejudice. (See People v. Calderon (1994) 9 Cal.4th 69, 75-79 [upon defendants timely request, trial court should bifurcate determination of truth of prior conviction allegation from determination of guilt to avoid risk of undue prejudice].) On this record, however, we cannot conclude that such prejudice occurred here.

B. Imposition of Upper Term

Defendant contends that the aggravating factors upon which the trial court relied did not justify imposition of the upper term. At sentencing, the court imposed the upper term of nine years for count I, imposed a consecutive sentence for count II (which was imposed as a two-year sentence, one-third the midterm), stayed sentence as to count III, imposed concurrent 180-day sentences for the lesser included offenses in count V,[6] and at the prosecutors request dismissed count VI. In choosing the upper term for count I, the court found no factors in mitigation and several in aggravation: The manner in which the crimes were carried out demonstrated planning and sophistication (although probably more planning than sophistication); defendants prior convictions were numerous; he was on summary probation when the crimes were committed; and his prior performance on summary probation was unsatisfactory.

Defendant raises several challenges to the use of these aggravating factors. First, defendant points out the rule that [a] fact that is an element of the crime upon which punishment is being imposed may not be used to impose a greater term (rule 4.420(d); see also People v. Forster (1994) 29 Cal.App.4th 1746, 1758 (Forster)), and argues that under this rule prior planning was an improper aggravating factor because it involved the same facts as the element of acting in concert. Not so. The evidence of prior planningparticularly getting the duct tape and gloves from defendants homeis factually and logically separate from the evidence that defendant acted in concert with his two companions.

Defendant also contends the trial court improperly relied on his current conviction as evidence that he had performed poorly on probation. He provides no authority for the assertion that a current conviction for an offense committed while on probation cannot provide the basis for a finding of poor performance on probation. In any case, the probation report indicates that in May 2005, defendant was placed on two years summary probation in Lake County for his firearm conviction; that the following year, in August 2006, he was placed on three years probation after being convicted of exhibiting a deadly weapon and burglary; and that he was fined for possessing marijuana in September 2006. On these facts, we see no abuse of discretion in the finding that he had performed poorly on probation.

Defendant contends, again without citation to relevant authority, that the same prior convictions were improperly used to support two aggravating factorsthe probation upon which he had performed poorly and the fact that he had suffered numerous convictions. We need not consider whether it is improper to use the same convictions to support two aggravating factors. The court enumerated multiple aggravating factors, two of which we have found proper. A single valid factor in aggravation is sufficient to justify an upper term. (Forster, supra, 29 Cal.App.4th at p. 1759.)

Defendant argues, however, that the court failed to consider the mitigating circumstance that the jury itself essentially found that appellant had been a passive participant or played a minor role in the crime. (Rule 4.423, subd. [sic] (a)(1).) According to defendant, the jurys rejection of the weapon allegations and not guilty finding on the charge of assault with a deadly weapon meant that the jury concluded he had basically stood by while the other men committed the more egregious acts of force. The record does not support this contention. Count V charged defendant with assault with a deadly weapon, to wit, a pool cue. The fact that the jury found him not guilty of assault with a deadly weapon, but guilty of the lesser included offenses of assault and battery, suggests not that the jury concluded he was a passive participant, but that it concluded the pool cue was not a deadly weapon. Similarly, the not true findings on the firearm allegations appear to reflect the evidence that defendant did not personally use a firearm during the incident, not a conclusion that defendant was a passive participant in the crime as a whole.

Defendant also contends he had an insignificant record of criminal conduct, considering the recency and frequency of prior crimes. (Rule 4.423(b)(1).) For this contention, he refers to the prosecutors statementmade in the context of pointing out defendants prior convictions of burglary, carrying a loaded firearm, and exhibiting a weaponthat defendants record was probably not the worse [sic] the Court has seen, even today.[7] Whether or not defendants record was the worst the court had seen, we cannot conclude that the court abused its discretion in failing to conclude that this record was insignificant and then to treat that as a mitigating factor.

C. Convictions of Assault and Battery

Defendant was convicted of both assault ( 240) and battery ( 242) on Johnson as lesser included offenses of assault with a deadly weapon, to wit, a pool cue ( 245, subd. (a)(1)). We requested additional briefing on the question of whether his conviction of both assault and battery based on this attack on Johnson violates the rule that [a]n accused may not lawfully be convicted . . . of both greater and included offenses in an individual count. (People v. Chan (2005) 128 Cal.App.4th 408, 421 (Chan); see also People v. Medina (2007) 41 Cal.4th 685, 702.) The Attorney General has correctly conceded that the conviction of both crimes violates this rule.

Since every completed battery includes an assault, assault is an included offense of battery. (In re Ronnie N. (1985) 174 Cal.App.3d 731, 734.) Discussing the rule against multiple convictions of greater and lesser included offenses, our Supreme Court has stated that [a] defendant who commits a battery may not be convicted of both battery and assault, because [a]n assault is a necessary element of battery, and it is impossible to commit battery without assaulting the victim.  (People v. Ortega (1998) 19 Cal.4th 686, 692-693; see also Ronnie N., supra, 174 Cal.App.3d at p. 734.) We conclude defendant was not properly convicted of both assault and battery as lesser included offenses in count V. In such a case, the correct course of action is to reverse the conviction for the included offense and direct the entry of a dismissal of the less serious crime. (Chan, supra, 128 Cal.App.4th at p. 421.)

In addition, a clerical error appears in the abstract of judgment. At sentencing, the trial court mistakenly referred to the conviction of a violation of section 240 (assault) as a lesser included offense in count IV, and the conviction of a violation of section 242 (battery) as a lesser included offense in count V; in fact, as we have noted, both convictions were made as lesser included offenses in count V. Both the court minutes and the abstract of judgment refer instead to two convictions under section 240, one in count IV and one in count V. On remand, the trial court shall amend the abstract of judgment to indicate that the remaining lesser included offense within count V is a violation of section 242.

III. DISPOSITION

The conviction of assault ( 240) is reversed. In all other respects, the judgment is affirmed. The trial court is directed to enter dismissal of this charge, to prepare an amended abstract of judgment reflecting a conviction of section 242 in count V, and to forward the amended abstract to Californias Department of Corrections and Rehabilitation.

________________________

RIVERA, J.

We concur:

___________________________

REARDON, Acting P.J.

___________________________

SEPULVEDA, J.

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[1] All statutory references are to the Penal Code. All rule references are to the California Rules of Court.

[2] Johnsons father testified that Johnson was on a strict medical regimen, that he had last had hallucinations about two and a half years previously, and that around the time of the incident at issue here he appeared to have been taking his medications.

[3] The pants Johnson and Madison were wearing had duct tape on them after the incident.

[4] Johnson and Madison had denied that Johnson sold the laptop to any of the men, or that anyone used racial epithets toward them.

[5] Defendant contends his trial counsel did not object to the prosecutors questions. The record does not disclose the subject of the bench conference. From the context, it appears likely that defense counsel objected to the prosecutors line of questioning at the bench conference and that the trial court allowed the prosecutor to continue. Whether defense counsel neglected to object to the prosecutors questions, or objected and was overruledpresumably on the ground that he had opened the door to the prosecutors questions by asking defendant whether he had been convicted of violating certain criminal statutesour conclusion would be the same.

[6] In imposing sentence, the court misspoke and referred to the violation of section 240 as a lesser included offense of count IV, rather than count V. As we will discuss in part II.C., defendant could not properly be convicted of both assault ( 240) and battery ( 242).

[7] Defendant mistakenly attributes these statements to the trial court, rather than to the prosecutor.