P. v. Johnson
Filed 7/9/13 P.
v. Johnson CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
SEMAJ JOHNSON,
Defendant and Appellant.
B241832
(Los Angeles County Super. Ct.
No. BA391178)
APPEAL from
a judgment of the Superior Court of
County, Craig E. Veals, Judge.
Affirmed and remanded.
Julie
Schumer, 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, Paul M. Roadarmel, Jr.,
Supervising Deputy Attorney General, and Rama R. Maline, Deputy Attorney
General, for Plaintiff and Respondent.
_____________________________
The
jury found defendant and appellant Semaj Johnson guilty of inflicting
corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a)).
admitted the allegations that he suffered one prior serious or violent felony
conviction within the meaning of the three strikes law (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)) and served three prior prison terms (§ 667.5, subd.
(b)).
title="">[2]
The trial court sentenced defendant
to a base term of four years, doubled to eight years pursuant to the three
strikes law. The court struck one of the
prior prison term allegations for sentencing purposes only but neither imposed
nor struck the two remaining prior prison term allegations.
On appeal, defendant contends
that: (1) a prosecution witness’s revelation that he
was a parolee was unduly prejudicial and required a mistrial; (2) the trial court erred by restricting his
ability to directly examine an impeachment witness; and (3) his counsel rendered ineffective assistance
by failing to object to witness testimony concerning his past abuse of the
victim and by failing to object on the proper ground in one instance. The Attorney General contends, and defendant
agrees, that the cause must be remanded to the trial court with directions to
either impose or strike the two prior prison term allegations which were not
resolved at sentencing.
We remand for clarification of
sentencing as to the two unresolved prior prison term enhancements, but
otherwise affirm the judgment.
We
view the facts in the light most favorable to the judgment. Defendant and Makeisha H. were living with
Makeisha’s mother, Cecilia T., and her boyfriend, Jeffrey C., in Cecilia’s
apartment in November of 2011.
On November 20, 2011, at
approximately 10:00 a.m., Cecilia and Jeffrey went into the living room. Defendant was threatening Makeisha with an
approximately 14-inch long knife, taken from Cecilia’s kitchen. He told Makeisha he was going to carve her
“in pieces.†He added, “[a]nd when I’m
finished with you, Makeisha, I’m going to do your mother. I’m gonna get her next.â€
Cecilia told defendant she was not
afraid of him. Makeisha ran around the
living room and told defendant to stop.
At one point, defendant punched Makeisha in the jaw. She cried, “Mama, he’s gonna cut me.†Cecilia ran behind defendant and told him not
to hurt her daughter. Jeffrey got
between defendant and Cecilia and told defendant to put the knife away. Defendant complied after five or ten minutes.
Sometime before noon the same day, defendant
and Makeisha left the apartment. They
returned to the apartment, and between 1:00 and 3:00 p.m., defendant again
attacked Makeisha, putting her in a chokehold, and punching her. Cecilia told him to let Makeisha go, but
defendant did not release her. Makeisha
was gasping for air and her mouth was foaming.
Defendant threatened to kill Makeisha repeatedly and called her a
“B.†Makeisha said, “Mama, why is he
doing this to me? Why?†Cecilia responded, “I don’t know.†Makeisha’s face was swollen from defendant
punching her, but she pleaded with Cecilia not to call the police. Jeffrey told defendant to stop choking
Makeisha. Cecilia told Makeisha, “I’m
sick of it. He needs to go,†and ordered
defendant to leave her house. Defendant
refused to leave because he said Cecilia had stolen his wallet and he wanted
the $70 he accused her of taking.
Defendant then threatened to kill Makeisha again. Cecilia denied owing defendant any money.
Between 4:00 and 6:00 p.m., Jeffrey
heard defendant tell Cecilia that if she called the police, his “goon squadâ€
would “take care of†her. Defendant
warned Cecilia, “[s]nitches don’t last.â€
He told her he knew where she was and that he would have Makeisha
ice-picked in the head.
At around 10:00 p.m. that evening,
Cecilia and Jeffrey were in their bedroom with the door closed. Makeisha and defendant were in the living
room, where they slept on the floor.
Cecilia heard Makeisha crying for defendant to stop hurting her in a
scared voice. She heard defendant talking
about money and threatening to kill Makeisha if she kept getting out of
line. Cecilia went into the living room
and saw defendant punching Makeisha in the mouth. Cecilia told defendant to stop. Makeisha had a tissue that had blood on it
from when defendant had punched her earlier.
She used a white hoodie she had been wearing to wipe the blood from her
mouth.
Makeisha acted as if nothing had
happened and went to sleep on the floor with defendant. Cecilia was afraid for Makeisha’s life. She went back into her room and told Jeffrey,
“[l]ook, I’m tired of this. I can’t
allow no man to sit up here and beat my daughter in my house.†After defendant was asleep, Cecilia and Jeffrey
went outside and used her cell phone to call the police. She did not want to call them earlier because
she was afraid Makeisha would leave with defendant if she knew the police were
coming.
When Los Angeles Police Department
officers arrived at approximately 3:00 a.m., they met with Cecilia and Jeffrey,
who were still outside. Cecilia
recounted what had happened that day and also told officers that defendant had
run over Makeisha with Makeisha’s car a couple of weeks earlier and she had a
large scar on her upper thigh.
which he and other officers used to enter the apartment, where they saw
defendant and Makeisha on the living room floor. Defendant was placed in custody, and Makeisha
was taken into the bedroom for questioning.
Makeisha identified herself to the
officers as Tiffani Wells, using a false name because she had four outstanding
warrants for her arrest and did not want to be caught.
appeared fearful and evasive. When
police asked her how her lip became swollen, she explained she had rolled over
in her sleep and hit a table. She denied
that defendant had run over her with a car.
The injury to Makeisha’s face was consistent with Cecilia’s version of
events. Officer Cummings also observed a
six-inch laceration with stitches on Makeisha’s upper thigh. Makeisha’s face was photographed by the
police. Officer Cummings’s understood
that the laceration on her thigh would be photographed later. Makeisha told the police Cecilia had made up
the abuse because she wanted Makeisha to give her money for drugs and let her
use her car that day, but Makeisha had refused.
Makeisha said Cecilia kept asking for money and the car keys. When Makeisha continued to refuse, Cecilia
told her that she and defendant would have to leave the apartment. Makeisha told the officers that Cecilia had
stolen defendant’s wallet and stole money from her too.
Officer Cummings took defendant to
the police station for booking. At some
point before defendant was given his Miranda
warnings, he asked Officer Cummings why he had been arrested. Officer Cummings answered that he was
arrested for battery and because a witness reported defendant hit Makeisha with
a car. Defendant admitted he had hit
Makeisha with a car but said it was an accident, and that he had driven her to
the hospital himself.
On November 23, 2011, Detective
Richard Askew, an investigator in the case, called Cecilia’s house and Makeisha
answered, claiming to be Cecilia.
Makeisha said she wanted to drop all charges against defendant. Cecilia grabbed the phone from Makeisha and
spoke with Detective Askew.
Makeisha was angry with her mother
for calling the police. Makeisha
continued to stay at the apartment, but she would leave when police came to
talk to Cecilia and Jeffrey.
At trial, Makeisha testified that
defendant loved her and always treated her well. She explained that she had gotten into a
fight with defendant’s ex-girlfriend, Janice W., on the afternoon of the
alleged incident, and that Janice had punched her in the mouth with a closed
fist. She did not tell the police
officers that Janice had caused her swollen lip, because she was afraid that
Janice would reveal her identity and she would be arrested. She denied that defendant assaulted her that
day. She said that he never threatened
her with a knife or said that he would carve her up. She insisted that defendant did not argue
with either Cecilia or Jeffrey that day.
Makeisha also denied that defendant hit her with a car and testified
that the police did not examine her leg for injuries.
Janice testified to punching
Makeisha in the mouth in April or May of 2011, causing her to bleed. She saw Makeisha and defendant in November of
2011 but did not have contact with Makeisha.
Prior to defendant’s relationship
with Makeisha, he dated Janice for approximately 10 years. Defendant was living with Janice in August of
2010.
On August 7, 2010, Janice called the
police around 7:00 in the morning.
Officer Christian Wecker and his partner responded to her call. When Janice met him at the door, she was
crying and appeared extremely agitated and fearful. The officers detained defendant, who had run
into the backyard. Officer Wecker’s
partner interviewed Janice. She said
they had been arguing because defendant wanted money. She had refused and told him to go get a
job. Defendant responded, “Fuck you,
bitch. I’m just going to get some from
one of my other bitches.†Janice went
into the laundry room area. Defendant
came in and grabbed her by the neck from behind. Janice described it as a chokehold, where
defendant was squeezing her neck from behind.
She said defendant lifted her off the ground and shook her. He dropped her on the floor, and Janice
screamed that she was going to call the police.
She was gasping for breath.
Two days later, Janice told the
police the arresting officer had blown the incident out of proportion, and
defendant should not have been arrested.
She called the police because she was angry with defendant because he
had been cheating on her and wanted him to leave. The case was rejected for filing by the
district attorney’s office.
At trial, Janice said defendant had
“hugged†her from the back in the laundry room.
She said it was not a chokehold.
She had been arguing about money with defendant, and she told the 911
operator defendant had choked her because she wanted the police to come
quickly. Janice did not recall telling
the police defendant had screamed, “Fuck you, bitch, I’m just gonna get some
from one of my other bitches.†She told
the police she just wanted defendant to leave because she thought he was going
to choke her. She was frightened by the
hug. She denied telling the police
defendant lifted her off the ground or shook her. She did not tell them that when he released
her, she fell to the ground or that she screamed at defendant that she would
call the police. She might have told
officers she scratched defendant’s arms.
Cecilia was arrested for grand theft
auto in 2006, but no charges were filed.
Stephanie Harris testified she was with Cecilia on December 30, 2006,
when they were both arrested for car theft.
Cecilia had driven the car without the owner’s permission. Cecilia and Harris kept the car for a couple
days, and both of them drove it. Cecilia
denied she and Harris argued over drug money or the car during that incident.
Jeffrey was arrested for
March 21, 2012. Officer Ricardo
Hernandez of the Los Angeles Police Department responded to the 911 call. Cecilia told him Jeffrey said, “I spend too
much money on you, bitch,†and that he jumped her while she was on the couch,
pulled her hair, slapped her on the face, and ripped her sweater. She said she had a rug burn under her left
breast. Cecilia was crying and appeared
fearful.
At trial, Jeffrey admitted he had
been arrested, but he denied he had harmed Cecilia and asserted the case had
been dropped.
Cecilia testified that she called
the police because she and Jeffrey had gotten into a big argument, and she
wanted to prevent things from getting violent.
She denied that she told the officer Jeffrey had harmed her. She was angry when the officer got there, so
she could have said anything.
Testimony Regarding Defendant’s Parole Status
Prior
to presentation of evidence, the parties agreed defendant’s prior convictions
were not relevant to the case and would therefore not be admitted. Accordingly, the trial court admonished
Makeisha not to mention that defendant was a parolee in her testimony.
Janice, however, had not been
similarly admonished and, during direct examination, described defendant as a
parolee when recounting her conversation with the 911 operator following her
incident with defendant. She stated,
“But when I hit the 911, I did say, ‘I have a parolee here choking my
neck.’†In response, counsel for
defendant requested that the trial court admonish Janice outside the hearing of
the jury, which the trial court did.
When her direct testimony resumed,
Janice mentioned defendant’s parole status a second time: “. . . I said, ‘Well, he grabbed me like this
with a hug, so I thought he was going to choke me, so I pushed a button and
they said 911, and I just said it’s a parolee here choking my neck,’ but it was
just a hug. It was no choke.†The trial court then admonished the
jury: “Ladies and gentlemen, there has
been a characterization as far as the defendant is concerned made by the
witness. You are to disregard that. She has no information one way or the other
about that and is not competent to testify on that subject. So just consider the testimony as it relates
to the incident in question, not her characterization of the defendant.â€
Defense counsel moved for mistrial
the next day, in part due to Janice’s mention of defendant’s parole
status. The trial court denied the
motion on the basis that any prejudice to defendant was cured by its admonition
to the jury. Defendant challenges the
court’s ruling.
The trial court should grant a mistrial
only where it “is apprised of prejudice that it judges incurable by admonition
or instruction,†such that the defendant’s chances of receiving a fair trial
have been “irreparably damaged.†(
854; People v. Bolden (2002) 29
Cal.4th 515, 555 (Bolden).) “‘Whether a particular incident is incurably
prejudicial is by its nature a speculative matter, and the trial court is
vested with considerable discretion in ruling on mistrial motions.’ [Citation.]â€
(People v. Wharton (1991) 53
Cal.3d 522, 565 (Wharton).) Accordingly, we review the trial court’s
denial of a motion for mistrial under the deferential abuse of discretion
standard. (Bolden, supra, 29 Cal.4th
at p. 555.)
“[A] witness’s volunteered statement
can . . . provide the basis for a finding of incurable prejudice.†(Wharton,
supra, 53 Cal.3d at p. 565.) “[The] jury is presumed to have followed an
admonition to disregard improper evidence particularly where there is an
absence of bad faith[, however]. [Citations.] It is only in the exceptional case that ‘the
improper subject matter is of such a character that its effect . . . cannot be
removed by the court’s admonitions.’†(
924, 934-935 (Allen), quoting
710.)
As defendant highlights with
citations to numerous cases, exposing a jury to a defendant’s prior criminality
may present the possibility of
prejudice necessitating a mistrial under certain circumstances. (People
v. Harris (1994) 22 Cal.App.4th 1575, 1580 (Harris).) The present case
is distinguishable from the cases upon which defendant relies, however, because
those cases have only held such exposure incurable where the evidence was
close. (People v. Navarrete (2010) 181 Cal.App.4th 828, 834-838 [police
detective’s allusion to defendant’s confession not curable where the misconduct
was calculated and the evidence against him was “not overwhelmingâ€];
997, 1007-1009 [mention of prior conviction warranted reversal where evidence
of guilt was weak and prosecutor “directly urged the jury to use the prior
conviction against [defendant].â€]; People
v. Vindiola (1979) 96 Cal.App.3d 370, 384-385 [trial court erred in
admitting three booking photographs of defendant and refusing to give
instructions requested by defendant, where it was “a close case on the critical
issue of identificationâ€], overruled on different grounds in
414, fn. 18; People v. Anderson (1978)
20 Cal.3d 647, 649-652 [trial court erred in admitting evidence that defendants
had twice been arrested together on unspecified charges over defendant’s
objection in light of the fact that the case was close]; Allen, supra, 77
Cal.App.3d at pp. 934-935 [statement that defendant was “on parole†incurable
by admonition in an “extremely close caseâ€]; People v. Roof (1963) 216 Cal.App.2d 222, 225, 227 [statement that
defendant had previously been “charged with contributing to delinquency of a
minor†incurable by admonition when criminal intent was a “close questionâ€];
338, 339, 341-342 [statement that defendant was an “ex-convict†incurable by
admonition when it resulted from “calculated†misconduct and close evidence resulted
in hung jury in first trial]; People v. Figuieredo (1955) 130 Cal.App.2d 498,
504-506 [mention that defendant “did time†by investigating officer calculated
to disclose that defendant was an ex-convict was prejudicial misconduct
requiring reversal where there was significant “conflict in the evidence as to
the identity of the [perpetrator]â€]; People
v. Bentley (1955) 131 Cal.App.2d 687, 689-691 [police officer’s mention of
prior charges warranted reversal where prosecutor should have admonished the officer
prior to testimony and the evidence was close], overruled on other grounds by
430-431.)
Here, in contrast, defendant was not likely prejudiced by
Janice’s testimony, and the case is not sufficiently close to warrant the
conclusion that the trial court abused its discretion. Defendant attacked Janice less than a year
and a half before the charged incident took place. Janice called 911 and reported that defendant
was choking her—one of the ways in which defendant also attacked Makeisha. Defendant fled when the police arrived. Janice told an officer at the scene that
defendant had attacked her four times in the past, and these incidents were
documented by law enforcement. In light
of the fact that the jury had already been made aware of several documented
incidents of domestic violence by defendant against Janice that occurred prior
to the incident she described, it is unlikely that her brief mentions of
defendant’s parole status constituted irreparable prejudice that could not be
cured by a prompt admonition. The trial
court admonished the jury to disregard Janice’s characterization of defendant,
and the court undermined Janice’s authority with respect to defendant’s parole
status by stating, “She has no information one way or the other about that and
is not competent to testify on that subject.â€
We presume the jury understood the trial court’s admonition and followed
it. (People
v. Sims (1976) 64 Cal.App.3d 544, 554-555 [jury is presumed to follow
admonitions to disregard improper evidence].)
Defendant
argues that the length of the jury’s deliberations and their request for
readbacks of testimony are indicative of a close case. We find this argument unpersuasive. First, there is no reason to believe,
deliberations is an indication of the closeness of a case. Second, the jury deliberated for
approximately six and a half hours,
compared to the several days the parties spent presenting the evidence. In light of this, “the length of the
deliberations could . . . be reconciled with the jury’s conscientious
performance of its civic duty, rather than its difficulty in reaching a
decision.†(People v. Walker (1995) 31 Cal.App.4th 432, 439 (
deliberation following two- and a half-hour presentation of evidence did not
indicate that the evidence was closely balanced].) Indeed, following the readback of testimony,
the jury returned its verdict in under ten minutes, from which it can be
inferred the jury was already close to a verdict and merely needed to verify
one detail.
Moreover,
the record contains strong evidence of defendant’s guilt. On the day of the incident, defendant
threatened to cut Makeisha “in pieces,†while wielding a kitchen knife. Later that day, defendant put Makeisha in a
chokehold, punched her, and threatened to kill her. Late that night, defendant punched Makeisha
in the mouth several times. When police
arrived at Cecilia’s apartment very early on the following morning, Makeisha
had a laceration on her lower lip, and her mouth and cheek were swollen. The police discovered a white hoodie with
blood on it in the apartment, which Makeisha had used to wipe the blood from
her mouth after defendant struck her.
Defendant was sleeping next to Makeisha and was arrested at the
scene. The case was not close as
defendant contends; the evidence convincingly showed that defendant inflicted
corporal injury on Makeisha.
Finally, on this record, we cannot
conclude it is reasonably probable defendant would have obtained a better
outcome in the absence of error. (
836.) Accordingly, reversal of the order
denying defendant’s motion for mistrial is not required. (See, e.g., Harris, supra, 22 Cal.App.4th at pp. 1580-1581 [mention of parole
status harmless in light of overwhelming evidence of guilt];
status and defendant’s residence in a halfway house harmless in light of
overwhelming evidence against him], overruled on other grounds in People v. Kimble (1988) 44 Cal.3d 480, 496, fn. 12;
476 [testimony mentioning two prior convictions not reversible error where “record
point[ed] emphatically to defendant’s guiltâ€].)
Limitation on
Examination of Impeachment Witness
Defendant contends the trial court’s
restriction of the scope of his examination of Harris violated his right to
present a complete defense under the Sixth and Fourteenth Amendments.
theft in 2006. With respect to the 2006
incident, Cecilia denied that the car theft was preceded by an argument with
Harris over whether she would lend Cecilia money for drugs and give her a ride
in the car. Makeisha had testified that,
on the day of the charged incident, she and Cecilia argued over whether
Makeisha would give Cecilia money for drugs and allow her to use Makeisha’s
car. According to Makeisha, Cecelia was
upset about her refusals and told Makeisha that she and defendant would have to
leave Cecilia’s apartment. Cecilia
denied she had argued with Makeisha about money for drugs or the car.
Defendant
proposed to call Harris to impeach Cecilia’s credibility with respect to her
denial of the alleged argument in 2006.
were parallel, such that Cecilia’s 2006 auto theft charge “related directly†to
the present case with respect to bias and motive. The trial court denied the request to admit
testimony about the alleged 2006 argument over the car and money, because it
was inadmissible under Evidence Code section 1101, and not relevant to the
case.
name="_ftnref8" title="">[8] The court allowed the defense to call Harris
for the limited purpose of testifying as to whether the 2006 car theft
occurred.
“‘Whether rooted directly in the Due
Process Clause of the Fourteenth Amendment or in the Compulsory Process or
Confrontation Clauses of the Sixth Amendment, the Constitution guarantees
criminal defendants “a meaningful opportunity to present a complete
defense.â€â€™â€ (Holmes v. South Carolina (2006) 547 U.S. 319, 324, quoting
690.) “Few rights are more fundamental
than that of an accused to present witnesses in his own defense.†(Chambers
v. Mississippi (1973) 410 U.S. 284, 302 (Chambers).) Where the trial
court excludes evidence vital to the defendant’s defense it deprives him of a
fair trial in violation of his right to due process. (People
v. Babbit (1988) 45 Cal.3d 660, 684-685, discussing Chambers, supra.)
However, “[i]n the exercise of this
right, the accused . . . must comply with established rules of procedure and
evidence designed to assure both fairness and reliability in the ascertainment
of guilt and innocence.†(
p. 302.) The trial court may impose
reasonable limits on defense counsel’s inquiry into a witness’s credibility
based on concerns about harassment, confusion of the issues, or relevance. (People
v. Brown (2003) 31 Cal.4th 518, 545; Evid. Code, § 352.) The usual rule is that “‘“the ordinary rules
of evidence do not impermissibly infringe on the accused’s [constitutional]
right to present a defense. . . .â€â€™
[Citations.]†(
155.) We will not disturb a trial
court’s exercise of discretion in excluding evidence on appeal “‘
exercised its discretion in an arbitrary, capricious or patently absurd manner
that resulted in a manifest miscarriage of justice. [Citations.]’
[Citation.]†(
1060, 1124-1125.)
We conclude the trial court did not
abuse its discretion in this case.
Cecilia testified that she was arrested for grand theft of the
automobile. She maintained that she was
not charged with the crime (which the prosecution verified to the trial court),
and that the argument over money and the car never occurred. Any attempt to take the subject further and
impeach her with respect to her statement about the circumstances in an
uncharged crime would stray beyond the relevant issues in this case. Whether the 2006 argument took place has no
bearing on whether defendant inflicted corporal punishment on Makeisha several
years later. It was not an abuse of
discretion to limit the scope of Harris’s testimony to exclude the issue, which
was not relevant and therefore excludable under the ordinary rules of
evidence. (See Evid. Code § 352 [“The
court in its discretion may exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.â€].)
Ineffective
Assistance – Failure to Object / Properly Object to Past Acts Evidence
Defendant contends that his attorney
provided ineffective assistance by failing to object to Cecelia’s statements
regarding defendant’s past abuse of Makeisha and by failing to object to
Cecilia’s testimony that defendant ran over Makeisha with her car, on the
ground that Cecilia lacked personal knowledge of the incident.
“To secure reversal of a conviction
upon the ground of ineffective assistance of counsel under either the
defendant must establish (1) that
defense counsel’s performance fell below an objective standard of
reasonableness, i.e., that counsel’s performance did not meet the standard to
be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that
defendant would have obtained a more favorable result absent counsel’s
shortcomings.†(People v. Cunningham (2001) 25 Cal.4th 926, 1003 (
1068 (Kraft).) “‘A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ ([Strickland,
supra, at p. 694];
1175.)†(Cunningham, supra, at p.
1003.)
“The Sixth Amendment guarantees
competent representation by counsel for criminal defendants[, and reviewing
courts] presume that counsel rendered adequate assistance and exercised
reasonable professional judgment in making significant trial decisions.†(People
v. Holt (1997) 15 Cal.4th 619, 703, citing Strickland, supra, 466
U.S. at p. 690; People v. Freeman
(1994) 8 Cal.4th 450, 513.) “A defendant
who raises the issue on appeal must establish deficient performance based upon
the four corners of the record. ‘If the
record on appeal fails to show why counsel acted or failed to act in the
instance asserted to be ineffective, unless counsel was asked for an explanation
and failed to provide one, or unless there simply could be no satisfactory
explanation, the claim must be rejected on appeal.’†(Cunningham,
supra, 25 Cal.4th at p. 1003, citing
evidence is tactical in nature, and a failure to object will seldom establish
ineffective assistance. (
153, 215.) Given the presumption of
reasonableness proper to direct appellate review, our Supreme Court has
“repeatedly emphasized that a claim of ineffective assistance is more
appropriately decided in a habeas corpus proceeding. [Citations.]
The defendant must show that counsel’s action or inaction was not a
reasonable tactical choice, and in most cases ‘“‘the record on appeal sheds no
light on why counsel acted or failed to act in the manner challenged . . .
.’â€â€™ [Citations.]†(People
v. Michaels (2002) 28 Cal.4th 486, 526.)
Here, there is nothing in the four
corners of the record to indicate defense counsel’s motivation for her tactical
decisions, which is reason enough to reject the issue on direct appeal. But even if we were to conclude that no
satisfactory explanations exist for counsel’s decisions, any error was harmless
with respect to defendant’s contention that trial counsel rendered ineffective
assistance by failing to object to Cecilia’s testimony.
Regarding defendant’s first
contention that counsel’s performance was deficient because she failed to
object to portions of Cecilia’s testimony, the complained of testimony includes
Cecilia’s statements that defendant “used to†punch Makeisha with his fists,
that Cecilia told Makeisha she was sick of defendant’s behavior and he had to
go, that Cecilia “used to†ask defendant why he was hitting her daughter, that
defendant “always said†he was going to kill Makeisha after he had punched or
abused her, that Makeisha “used to†let him hit her, and that every time
defendant hit Makeisha or abused her, Makeisha would say, “‘Mommy, why is he
doing this to me?’â€
name="_ftnref9" title="">[9] There is no reasonable probability that
defendant would have obtained a more favorable result had counsel objected to
these statements. Evidence was presented
of several instances of violence throughout the day in question, in which
defendant choked and punched Makeisha, and threatened to carve her to pieces
while brandishing a knife. Given the
serious and continual nature of these episodes that occurred within a less than
24-hour period, there is no reason to expect that the outcome of trial would
have been different if Cecilia did not allude to previous incidents.
Defendant also contends that trial
counsel rendered ineffective assistance by failing to object to Cecilia’s
testimony that defendant ran over Makeisha with a car, based on the specific
ground that Cecilia lacked personal knowledge of the incident,
testimony that he observed a fresh wound with stitches on Makeisha’s upper
thigh and that defendant admitted he had hit Makeisha with a car. In particular, defendant contends that trial
counsel failed to properly object to Cecilia’s statement that “[defendant] had
been beating [Makeisha] for a month and he ran over her with her own car. She had 25 stitches. I have pictures of it,†which she made in
response to the prosecutor’s inquiry on redirect as to whether defendant and
Makeisha had stayed at her apartment for longer than a month.
Defendant’s argument lacks merit,
because trial counsel did, in fact,
object to Cecilia testifying as to the car incident on the ground that she
lacked personal knowledge of the event.
In a hearing on the admissibility of evidence prior to trial, counsel
objected to admission of any testimony by Cecilia with respect to the car
incident because Cecilia was “actually not present at that incident.†Trial counsel expounded that “the victim had
told her possibly about that incident, but I don’t believe that Cecilia T. was
actually present during the incident. [¶] And so I’m afraid that this information is
going to come in, but it’s through a witness that’s not actually observed or
was present during the incident.†The
trial court responded, “Well, if it’s hearsay that you’re concerned about, you
need not be because hearsay isn’t admissible.â€
After Cecilia testified that
defendant hit Makeisha with a car, the prosecutor inquired, “Now, did you ever
see that?†Cecilia answered, “Did I see
it? People called me on the phone over
there in the neighborhood where Grandma saying he ran her over and told me your
daughter is in the middle of the street.â€
Defense counsel objected that this exceeded the scope of
cross-examination but was overruled. The
prosecution then asked, “Were you present when that happened?,†and Cecilia
answered, “No, I was at home.â€
Prior to Officer Cummings’s
testimony, there was another hearing on the admissibility of evidence, this
time with respect to the officer’s proposed testimony about defendant’s
admission that he had hit Makeisha with a car.
Trial counsel again argued that Cecilia’s testimony, which she
maintained was the basis for admission of the officer’s testimony, was hearsay,
stating “Cecilia took the stand and said she had no personal knowledge. She said that she didn’t see [the car
incident], that she wasn’t there. That
came out during testimony and it’s basically hearsay.â€
Finally, trial counsel argued
Cecilia had no personal knowledge of the car incident in her mistrial motion,
as well. We conclude that trial counsel
rendered adequate assistance and exercised reasonable professional judgment in
her objections to Cecilia’s testimony about the car incident. She acted exactly as defendant argues she
should have, and therefore could not have rendered ineffective assistance in
this respect. (See People v. Marshall (1990) 50 Cal.3d 907, 949.)
Prior Prison
Term Enhancements
Finally, we agree with the parties
that the case must be remanded for clarification of whether two of the three
section 667.5, subdivision (b) enhancements were imposed or stricken. Defendant admitted serving three prior prison
terms within the meaning of section 667.5, subdivision (b). It appears from the transcript that the trial
court struck one of the prior prison enhancements at sentencing. The court failed to impose or strike the
remaining two enhancements, however, as is required. (See
People v. Bradley (1998) 64 Cal.App.4th
386, 390-392, 400-401.) Accordingly, we
remand to give the trial court the opportunity to strike or impose those
v. McCray (2006) 144 Cal.App.4th 258, 267.)
The cause is remanded to the trial court with
directions to either impose or strike the remaining two prior prison term
enhancements under section 667.5, subdivision (b). The clerk of the superior court is directed
to prepare and forward to the Department
of Corrections and Rehabilitation the amended abstract of judgment
reflecting the judgment after disposition of the prior prison term enhancements. In all other respects, the judgment is
affirmed.
KRIEGLER,
J.
I concur:
O’NEILL, J.
MOSK, J., Concurring
I concur.
With regard
to the ineffective assistance of counsel contention, I concur solely on the
basis that the claim is more appropriately raised in a habeas corpus
proceeding. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) In such a proceeding, arguments as to whether
trial counsel made a tactical decision, whether an objection based on lack of
personal knowledge was timely made, and whether the lack of an objection was
prejudicial, as well as other issues, can be explored.
MOSK,
Acting P. J.
otherwise indicated, all statutory references are to the Penal Code.
additional felony charge was dismissed by the district attorney and defendant
was found not guilty on two other charges.
