P. v. Morgan

Filed 2/11/09 P. v. Morgan 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 convicted defendant David Lee Morgan of assault with a firearm (Pen. Code,  245, subd. (a)(2)),^[1]corporal injury resulting in a traumatic condition on a spouse ( 273.5, subd. (a)), and child abuse/child endangerment ( 273a, subd. (a)). In connection with the assault with a firearm conviction, the jury found true the enhancement allegation that defendant had personally used a firearm within the meaning of section 12022.5, subdivision (a)(1). The jury acquitted defendant of unlawful use of force and violence to resist or deter an executive officer in the performance of his duty ( 69) and misdemeanor battery of a police officer ( 243, subd. (b)).

The trial court sentenced defendant to the upper term of four years in state prison for his assault with a firearm conviction, to a consecutive upper term of 10 years for the firearm enhancement, to a concurrent upper term of four years for his corporal injury of a spouse conviction, and to a consecutive one-third of the middle term or 16 months for his child endangerment conviction. Defendants total sentence was 15 years and four months.

On appeal defendant contends (1) the trial court erred in admitting evidence of defendants two prior assaults on women, (2) the trial court denied defendant his constitutional right to present a defense by restricting cross-examination of his wife, (3) the trial court erred in admitting evidence of defendants possession of weaponry unrelated to the charged offenses, (4) the trial court prejudicially erred in failing to give a unanimity instruction on the child abuse/child endangerment count, (5) defense counsel provided ineffective assistance of counsel by failing to object to the prosecutors prejudicial misconduct in closing argument, and (6) the imposition of the upper terms violated Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham). Rejecting defendants claims, we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

We summarize the facts in the light most favorable to the judgment. (People v. Hatch (2000) 22 Cal.4th 260, 272.)

Charissa McNeill-Morgan^[2]and defendant were married in August 2006, a couple of months after their daughter M. was born. In October 2006, they were living together, along with four and a half month old M. and Charissas two children from a previous marriage; E., age 7, and K., age 6.

On October 21, 2006, Charissa came home from work around noon. Defendant seemed agitated. When Charissa kissed defendant, she smelled alcohol. He said he had a couple of drinks. Charissa and defendant decided to watch a movie in their bedroom, but paused the movie a few times to discuss defendants drinking.

About an hour later, E. and K. came running into the bedroom through the open door. Defendant yelled at them for not knocking before entering. Defendant got out a tape recorder and began recording the children while he cross-examined them about their rule-breaking. Charissa took the children to K.s room and defendant followed with the tape recorder. Charissa and defendant became upset with each other. They went back into their bedroom.

Charissa felt defendant was treating the children unfairly. She did not let defendant hold M. when he asked for her. Defendant accused Charissa of having sexual relations with men at her workplace. He demanded to hold M. He pulled Charissa off the bed by her hair. Defendant hit Charissa three or four times in the head. She screamed at him to get off of her. Defendant feinted a punch at Charissas stomach and told her he could have finished [her] off. As Charissa tried to crawl away, defendant hit her on her back, pushing her to the ground.

Charissa grabbed M. and left the bedroom. She found E. and K. in the living room. Charissa told them that defendant had hit her and they were going to leave. She tried to get out with the children through the back door, but defendant blocked their way. Charissa broke a framed wedding photo, angering defendant. Defendant pushed Charissa back into the living room. When Charissa told defendant their marriage was over and that he should let them go, defendant told E. and K. their real father was a drug addict and a loser. Charissa got up and left with the children. They made it out to the backyard before defendant reached them and pushed them back inside.

Defendant grabbed Charissa and put her over his shoulder. He carried her to their bedroom. The children followed. E. was holding M. Defendant pushed the children into the bedroom and shut the door. Charissa told defendant she was going to report defendant to the police. Defendant told her thats not going to happen. Charissa told defendant: Well, youre going to have to kill me, because Im not going to live like this. Defendant lifted up the bottom of the bed and pulled out a rifle. K. screamed for defendant not to shoot Charissa. Defendant said that everything was fine. He proceeded to wipe down the gun and each bullet as he loaded them into the rifle. Charissa told her children she was sorry and said goodbye. E. told Charissa to tell defendant whatever he wants to hear. Just tell him sorry or whatever he wants. Charissa told E. she could not do that. Charissa rolled over the bed to get to the window, which she was able to partially open. She screamed for help. Defendant shut the window and hit Charissa across the face. Charissa blacked out. She regained consciousness as defendant was dragging her across the floor. She became aware of a cut above her right eyebrow that was bleeding. Defendant started punching her again. He punched her down to the floor and hit her legs and stomach.

Defendant moved M. to her bassinet on the other side of the room from Charissa, E. and K. Defendant took up the rifle again and pointed it at Charissas head. Defendant cocked the gun. He moved out of the doorway to close the window blinds and said Lets just finish this off.

Seizing her chance to escape, Charissa ran outside and over to a neighbors house. Defendant came outside without the gun and grabbed Charissa by the wrists. K. made it outside and Charissa told him to go get help. Charissa broke free and ran across the street to where she saw another neighbors open garage door. She screamed for help when the neighbor came out of his garage. The neighbor called 911. Defendant called out that he had Charissas kids and took K. back inside their house.

Charissa went back to her house, met E. and K. near the back door and told them to run. The children ran across the street to the neighbors. Charissa went for M., but saw defendant with the rifle going down the hallway towards their bedroom. Charissa went back to the neighbors.

Sacramento County Sheriffs officers arrived on the scene and were told defendant was in the house with a gun and Charissas baby. Two officers approached the house. Defendant opened the front door, but slammed it again when he saw the officers. When the officers heard something in the backyard, they ran around the house to the yard. They saw defendant by the back fence. Defendant was holding M. and a rifle. When defendant went through a gap in the fence, the officers followed. On the other side of the fence was a small flat area before a steep decline down to a creek. The officers confronted defendant who either dropped the gun or otherwise no longer had the gun. Deputy Brett Spaid grabbed M. from defendant and kicked defendant in the chest, causing him to fall back into Deputy Christopher Britton. Britton and defendant both fell down the embankment into the creek where a struggle ensued before Britton was able to handcuff defendant.

Charissa was treated at the hospital for cuts and a few days later had a number of bruises. Charissa became aware M. had a bruise and some scabbing on her head a few days after the incident.

E. and K. gave statements to Sheriff Deputy Daren Allbe at the scene and then testified at trial. Their version of events differed in some details, but agreed on a number of main points with the description given by their mother.

Defendant testified on his own behalf.

Defendant denied drinking any alcohol that day, but admitted taking Xanax for anxiety and sleep deprivation and a prescription pain medication called Norco (containing Vicodin) every four hours. Defendant claimed it was Charissa who got mad at E. and K. for entering their bedroom without knocking and that it was Charissa who screamed at him and smacked him around the head when he was talking to the children about the rules. He subsequently saw Charissa sawing at her wrist with a butcher knife. He took the knife away from her and took her back to their bedroom. Charissa started swinging and slapping at him again. Defendant pushed her away and onto the bed. Defendant took two rifles from under the bed, intending to move them away from Charissa, who he claimed was depressed and suicidal. Charissa yelled Kill me, kill me multiple times. E. and K. came running. Defendant denied pointing a gun at the children or Charissa. He unloaded one of the guns, accidentally leaving a bullet still inside. Defendant took the guns outside and put them on the ground on the other side of the fence. Defendant did not remove the other weapons he had under the mattress, including a new machete, an old World War II bayonet, pocket knives, a hunting knife, and a hammer.

When defendant returned to the house, Charissa was waiting for him. She slammed a picture down, breaking it. A piece of glass cut defendant and another piece hit his eye. Charissa ran to the bedroom. When defendant got to the bedroom, Charissa tried to slap and hit him. She hit her knees against the dresser. Defendant tried to grab and hold her to prevent her from hurting herself. He did not hit her or punch her. When Charissa pulled away, she hit herself on a table lamp, cutting herself and knocking herself out. When Charissa came to, she went into the living room and told E. and K. that defendant had punched her in the mouth and was trying to kill her. She and the children left the house by the front door. Defendant yelled for the children to come back, which they did. Charissa went across the street to a neighbor. Charissa was acting crazy. Defendant went outside, but returned to the house when it was clear the neighbor had called the police.

Defendant saw the officers arrive. Defendant was scared because they had their guns out and pointed at him and M. He shut the door and decided it would be safer to take M. out into the backyard. He did not have a rifle. The officers confronted him there. He gave M. to Spaid as requested.

Defendant admitted two prior assaults on women.

DISCUSSION

I.

Admission Of The Evidence That Defendant Had Committed Two Prior Misdemeanor Assaults Of Women

Defendant contends the trial court erred in permitting evidence that defendant had committed two prior assaults on women, thereby violating his rights to due process and a fair trial under the federal Constitution. We disagree.

A. Background Information

Defendant filed a pretrial motion to exclude evidence of his prior conduct and misdemeanor convictions for either impeachment or pursuant to Evidence Code section 1101, subdivision (b).^[3] He claimed the evidence was irrelevant, inadmissible, and excludable pursuant to Evidence Code section 352 (section 352). The prosecution informed the trial court it was not seeking to use the evidence pursuant to section 1101(b) and had no objection to defendants motion unless it becomes relevant through impeachment of my witnesses or character evidence of my witnesses or if it becomes relevant through [defendants] testimony, should he testify. The trial court granted defendants motion.

During trial, prior to defendant testifying, defense counsel confirmed the trial court had granted defendants motion in limine regarding his prior conduct. The prosecution agreed [u]nless he opens the door.

Defendant proceeded on direct examination to testify that it was Charissa who screamed at him and smacked him around the head. He testified that Charissa started swinging and slapping at him again after he took the butcher knife away from her. When defendant returned to the house after removing the rifles to protect Charissa from hurting herself with them, Charissa slammed a picture down, breaking it. A piece of glass hit defendants eye and he went to the bathroom to flush it out. Defendant said he was quick because he wanted to get back to Charissa as she was being violent. Charissa ran at him and tried to slap and hit him.

On cross-examination, defendant stated Charissa was being violent. She was hitting me. She was yanking the baby, you know. Later defendant again confirmed that Charissa had hit him, he had pushed her back and told her not to hit him, and she had responded by smacking him again. Although there was no question pending, defendant stated Its called turning your other cheek but not turning your other cheek. I turned away from her and she smacked me again. And it wasnt the first time, she hit me all the time. The prosecutor asked to approach and an unreported sidebar occurred. The following exchange then took place on the record.

[PROSECUTOR]: So she hit you all the time in the past, right?

[DEFENDANT]: Yeah.

[PROSECUTOR]: Do you recall --

[DEFENDANT]: Not like somebody in a boxing ring hit me all the time but she hit me.

[PROSECUTOR]: Did you ever call the police?

[DEFENDANT]: No, I never did.

[PROSECUTOR]: Ever?

[DEFENDANT]: On her?

[PROSECUTOR]: Yeah.

[DEFENDANT]: No.

[PROSECUTOR]: So shes abusing you on multiple occasions and you never once report her?

[DEFENDANT]: You know what, unless she lays my face open, I can take it. I love her. I knew she was sick. I didnt want any trouble for her. Im a man, you know. Were much bigger than most people. You dont do that, try to hurt her or get someone to come in and hurt them.

A short time later, defendant testified he put his arm around Charissa to keep her from slapping him because she was acting erratically and violently towards me[.]

Outside the presence of the jury, the trial court put on the record the substance of the unreported sidebar. Specifically, the court noted the prosecutor had asked the court to be allowed to examine defendant regarding his prior incidents of domestic violence [the two prior misdemeanor assault convictions against the other women] claiming defendant had opened the door. The trial court had suggested they wait until a recess to fully explore defendants priors and what specific information the prosecutor requested. The trial court felt defendant had opened the door under Evidence Code section 1103,^[4]but asked the reporter to find the section of defendants testimony so that it could be reviewed. The parties and the trial court then discussed the nature of defendants prior incidents, includinga 1995 incident in Utah in which defendant pled guilty to a simple assault of a woman named Sarah E. and a 1998 incident in Utah in which defendant was found guilty of simple assault of a woman named Heather H.

The prosecution asserted the evidence of defendants two prior assault convictions was admissible either under section 1103, because defendant had opened the door to his character for violence by saying Charissa hit him all the time, or as impeachment of defendant because defendant had testified in effect that he did not hit Charissa because men do not hit women. The trial court reviewed portions of defendants testimony and concluded defendant had opened the door under section 1103. The trial court ruled the prosecutor did not open the door[;] that defendant clearly and simply asserted his wife hit him on the event on the day in question, and she has hit him before[;] in fact, he went further and said she hits him all the time. []  So my ruling is under [section] 1103, . . . [t]he prosecution is entitled to rebut evidence seduced [sic] by the defendant that the victim has a trait for violence. []  So I will allow the questioning as indicated by the prosecutor, is it a fact that you assaulted Ms. [E.] in 1995? And isnt it a fact that you assaulted Ms. [H.] in 1998? []  My ruling is that you do not mention anything about a gun or guns in either incidents [sic]. Under [section] 352, Im going to have that sanitized because that is too similar at this point. And the purpose is not to prove up [Evidence Code section] 1109 evidence, its only to show impeachment of [defendant] for truthfulness.

Defendant subsequently admitted the two assaults. The court immediately instructed the jury with a limiting instruction that it could only use the information regarding defendants prior conduct regarding an assault for the purpose of evaluating defendants credibility and not for any other purpose.

B. Analysis

Defendant claims on appeal the trial court erred in ruling the evidence of defendants prior assaults was admissible. Defendant contends the evidence was not admissible under section 1103 because he did not assert a claim of self-defense or other justification or excuse, but denied doing the acts alleged. Therefore, defendant claims Charissas character for violence was not placed at issue and was not relevant. Defendant claims he did not introduce the first evidence about Charissas violent impulses, pointing to Charissas testimony that she picked up scissors and then a taser or stun gun during the course of the events she described. Moreover, the evidence the prosecution sought to rebut was elicited by the prosecution on cross-examination, not offered on direct examination. Defendant points out a prosecutor cannot elicit otherwise irrelevant testimony on cross-examination just for the purpose of contradicting it. (People v. Mayfield (1997) 14 Cal.4th 668, 748; People v. Reyes (1976) 62 Cal.App.3d 53, 62.) Defendant also claims the evidence was not admissible as impeachment evidence for a variety of reasons. We conclude the evidence was properly admitted pursuant to section 1103 and therefore, do not need to reach defendants other claims regarding the admissibility of the evidence as impeachment evidence.

Charissas testimony portrayed defendant as the aggressor in the events occurring that afternoon.^[5] The assessment of her credibility was essential to the jurys consideration of whether defendant had committed the charged offenses. Defendant, through his testimony on direct examination, attacked Charissas version of events, denying he ever pointed the loaded rifle at her or punched or hit her. Defendant offered instead a version of events depicting himself as the victim of a woman who was depressed, suicidal, out of control, and violent towards him. Defendant continued to testify to Charissas violence on cross-examination and then volunteered the information that she hit him all the time. The prosecutor did not elicit such response.

Although section 1103 evidence has been admitted in cases in which the defendant asserts self-defense (e.g., People v. Walton (1996) 42 Cal.App.4th 1004, 1013-1015, disapproved on other grounds in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3; People v. Blanco (1992) 10 Cal.App.4th 1167, 1170-1176), defendant has not cited us to any case, nor have we found one, that states section 1103 is limited to such cases. No such limitation is contained in the language of section 1103. Here, defendant introduced, among other things, evidence of Charissas character for violence as a method of discrediting her version of the events. Defendants prior assault convictions were relevant to show his character for violence against women in rebuttal of his claim of being the victim or a passive participant in these events. The evidence was admissible under section 1103.

Defendant argues that even if we should find the evidence admissible, we should conclude the evidence was more prejudicial than probative under section 352.

Section 352 permits the exclusion of relevant evidence where 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. We review a trial court order denying a motion to exclude evidence under Evidence Code section 352 for abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 213.) A trial courts exercise of discretion under section 352 will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.] (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

Here the trial court allowed the prosecutor to ask defendant two questions; whether he had assaulted Ms. [E.] in 1995 and whether he had assaulted Ms. [H.] in 1998. The trial court exercised its discretion under section 352 to exclude any mention of defendants use of guns in connection with the prior offenses.

We find the trial courts ruling allowing limited evidence of defendants prior assaults of women was not an abuse of discretion. The evidence was relevant as we have explained. It was not a collateral matter as defendant claims as it went directly to the credibility of defendants portrayal of himself as the victim of Charissas violent outbursts. Although defendant complains about the manner in which the prosecutor used the evidence in closing argument, he failed to object to such argument, forfeiting any objection. (People v. Thornton (2007) 41 Cal.4th 391, 454.) We consider and reject defendants claim that such failure amounted to ineffective assistance of counsel in a later section of this opinion.

II.

The Trial Courts Limitation On Defendants Cross-examination Of Charissa

Defendant contends the trial court denied him his Sixth Amendment right to present a defense when it restricted his cross-examination of Charissa regarding her use of prescription pain medications. We find defendant forfeited his claim by failing to argue the relevance of his proposed cross-examination for the purpose he now asserts.

A. Background

On cross-examination, the defense questioned Charissa about her mental state. Charissa admitted seeing a doctor a couple of weeks before this incident and that the doctors report reflected she was under a lot of stress and that she had low energy, a depressed appetite, feelings of hopelessness, and suicidal thoughts. Outside the presence of the jury, the court questioned the defense how much further it was going to go with these inquiries. As the result of the ensuing discussion, the trial court held an Evidence Code section 420 hearing to explore what Charissas testimony would be regarding her mental condition, including her use or failure to use any prescribed medications.

At the hearing, Charissa testified she had seen a doctor in early October 2006. She denied telling the doctor she was having suicidal thoughts, although she did say that she was feeling overwhelmed. She asked for a change in her pain medication and the doctor complied. The doctor changed her pain medication from Norco to Darvocet, prescribed Soma for muscle spasms, and Zoloft for depression. She continued to use Xanax to help her sleep. On October 21, the day of the incident, Charissa took either Norco or Darvocet and she would have taken Xanax the previous night. Charissa did not take Soma that day. She denied that she felt any effects from any medication on October 21.

The defense asked the trial court to be allowed to question Charissa before the jury regarding what pain medications she was taking, her report of suicidal thoughts and her history of depression. The defense also thought it was relevant she was prescribed medication that she was not taking. The defense argued it was common knowledge narcotic pain medications affect perception. The defense also contended Charissas taking painkillers undercut her credibility because it contradicted her testimony she was breastfeeding when she was not supposed to take painkillers while nursing. Since Charissa said her pain medication made her edgy or agitated and gave her headaches, the defense requested permission to question her about such effects.

The trial court concluded there was already testimony before the jury of Charissas suicidal thoughts, but that the defense could further explore her depression. The court refused to permit inquiry into Charissas use of pain medications for purposes of testing her perception of events since Charissa denied feeling any effects from the medication, unless the defense planned on calling an expert to testify to the normal side effects caused by such medications. The trial court ruled the side effects were not a matter of common knowledge. The trial court permitted inquiry into whether Charissa was agitated or anxious that day. The trial court permitted inquiry into whether Charissa did or did not take Zoloft. The trial court did not see the relevance or probative value of the painkillers/breastfeeding issue unless the defense could connect it up with an offer of proof along the lines of showing Charissa and defendant knew she should not be taking painkillers while nursing, defendant knew Charissa was doing so, and that they had an argument over that, which precipitated the events Charissa described.

B. Analysis

On appeal defendant makes a new argument for the admissibility of the evidence of Charissas use of narcotic painkillers. He now contends the evidence of Charissas use of narcotic painkillers was relevant in the following way: Charissas testimony showed that there was an impending break-up of the marriage and a potential custody battle over their baby. [Defendant] was concerned that Charissas actions were endangering the children and that he suggested they should be taken away from her. In her direct examination, Charissa had testified to her perception that [defendant] was inappropriately using alcohol while acting as a caretaker for the children. Whether or not Charissa was taking narcotics while nursing was relevant [to] ameliorate the implication of her testimony that [defendant] was a negligent caretaker, and relevant to her motivation to falsely accuse [defendant], and thus avoid a potential custody dispute.^[6]

Defendant never argued this negligent caretaker/custody dispute motive theory of admissibility to the trial court. The trial court was never given the opportunity to consider the factual predicate of the argument. Defendant may not now argue on appeal this basis for admissibility of the evidence. (People v. Jackson (1992) 6 Cal.App.4th 1185, 1192; Evid. Code, 354.)

Moreover, even if we were to consider this convoluted theory of admissibility and find the evidence should have been admitted, a conclusion we do not reach, we would find no prejudice from its exclusion. Theories of negligent caretaking of the children were collateral to the issues presented by the charges against defendant. And even if we could say Charissa should not have been nursing while taking any pain medication,^[7]we cannot say this provided any significant additional motivation for her to falsely accuse defendant to avoid being found an unfit parent in any speculative future custody dispute. Defendant had already adduced evidence Charissa was depressed and reported suicidal thoughts to her doctor and that, according to defendant, she falsely accused him of drinking alcohol that day. Defendant has not shown the prohibited cross-examination would have produced a significantly different impression of [Charissas] credibility (People v. Frye (1998) 18 Cal.4th 894, 946, disapproved as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22) so as to require the trial court to permit such cross-examination. (People v. Chatman (2006) 38 Cal.4th 344, 372.)

Nor do we agree with defendant that the prosecution unfairly and improperly told the jury in closing argument to take into account [defendants] use of painkillers in evaluating his credibility, although the defense had been deprived of the opportunity to make a similar plea. The prosecutor actually told the jury it could take into account the number of substances that were in [defendants] blood and his ability to perceive, his ability to see or hear how those may have affected him. The prosecutor was apparently referencing the evidence including Charissas testimony that defendant had been drinking alcohol while she was at work that morning^[8]and the stipulation between the parties that defendants blood sample contained caffeine, lidocaine, Xanax, Vicodin and Norpropoxifene. The prosecutors argument did not mention or single out pain medications, nor did the prosecution ascribe any particular effect to the substances in defendants system. The prosecutor merely highlighted that defendant had ingested a large number of substances and the combination of such substances could have had an effect on defendants perceptions. Importantly, defendant did not object to the prosecutors argument. We reject his claim that defense counsels failure to object was ineffective assistance of counsel in a later section of this opinion.

III.

Evidence Of Defendants Possession Of Unrelated Weaponry

Officers found a stun gun, a BB gun pistol, a machete knife, a metal bayonet, a hunting knife, two pocket knives, and a hammer in a search of defendants and Charissas bedroom after the incident. Defendants motion to suppress such evidence was denied.

Defendant then moved in limine to exclude evidence of the weapons found underneath defendants bed as irrelevant or more prejudicial than probative under section 352. Other than the stun gun, the trial court ruled preliminarily that the weapons would not be relevant. However, the trial court invited the prosecution to revisit the issue if it felt the weaponry became relevant during the course of the trial.

During defendants opening statement to the jury, the defense contended the evidence would show defendant was aware Charissa was not mentally stable, that defendant knew he had loaded rifles in the bedroom, that he did not feel safe leaving anything in the room alone with Charissa[,] that he was afraid she might do something to hurt herself, to hurt the kids[,] and that he wanted to get the rifles out of the room for their safety. The prosecutor sought a ruling from the trial court that based on the opening statement, evidence of the other weapons would be admissible. The prosecutor argued it would be highly relevant that [defendant] left numerous bladed weapons in that house, which theoretically would be much easier to hurt or kill oneself with than a rifle[.] Defendant disagreed. The trial court ruled that the evidence would not be allowed in the prosecutions case in chief, but if the defense introduced evidence supporting its opening statement, it would open the door. The trial court directed the prosecution to renew its request at the appropriate time. After defendant cross-examined Charissa regarding her mental state, the prosecution sought introduction of the weapons. The trial court ruled it was still premature.

When defendant testified, he said he pulled the rifles out from under the bed and got out the box of bullets from the dresser because he intended to remove them so Charissa would not hurt herself. Defendant testified that he did not remove the other weapons he had under the mattress, including a new machete, an old World War II bayonet, pocket knives, a hunting knife, and a hammer. On cross-examination, defendant claimed he removed the guns, but not the other weapons, because the guns were the most deadly thing in the house; the biggest threat.

Defendant now claims the evidence of his possession of the other weaponry unrelated to the charged crime should not have been admitted as it really had no impact on the plausibility of [defendants] explanation for taking the guns from beneath the mattress[,] while it was extremely prejudicial in creating a negative impression of defendants character.

Assuming without deciding that defendant preemptively introduced the evidence on direct examination in anticipation of the trial court ruling as it had previously indicated and that defendants earlier objections preserved the issue for appeal, we conclude the evidence was admissible over defendants relevance and section 352 arguments.

A trial court has wide discretion to determine the relevance of evidence, and we review its decision for abuse of discretion. (People v. Kelly (1992) 1 Cal.4th 495, 523.) Relevant evidence is defined in Evidence Code section 210 as evidence having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. The test of relevance is whether the evidence tends logically, naturally, and by reasonable inference to establish material facts . . . . [Citations.] [Citation.] (People v. Scheid (1997) 16 Cal.4th 1, 13.)

Here the evidence was relevant to the jurys consideration of defendants explanation for his handling of the rifles that day. The fact defendant left numerous other weapons in the bedroom had some tendency in reason to disprove defendants claim that he was taking the rifles and bullets out in order to remove them from Charissa for her safety. This is especially true in light of his testimony that before he pulled out the rifles, Charissa was sawing back and forth on her left wrist [with a butcher knife]. Thus, the presence of the other weaponry tended to logically, naturally, and by reasonable inference refute defendants version of events. Because the other weapons were relevant for this purpose, People v. Henderson (1976) 58 Cal.App.3d 349, 360, and People v. Archer (2000) 82 Cal.App.4th 1380, 1392-1393, cited by defendant, are inapposite.

The court did not abuse its discretion under section 352 in admitting evidence of the other weapons. Here the evidence had a strong impact on the credibility of defendants claim of handling the rifles in order to remove them from Charissas reach. This is so despite defendants explanation that he removed only the guns because they were the most deadly; the biggest threat. Defendant complains that the evidence unfairly portrayed him as a person who surrounds himself with a veritable arsenal, but [p]ainting a person faithfully is not, of itself, unfair. (People v. Harris (1998) 60 Cal.App.4th 727, 737.)

IV.

Unanimity Instruction For Child Endangerment Charge

Defendant claims his conviction for child endangerment under section 273a, subdivision (a), must be reversed because of the trial courts failure to give a unanimity instruction. The People respond that the failure to instruct was harmless error. We conclude the trial court did not err.

It is fundamental that a criminal conviction requires a unanimous jury verdict (Cal. Const., art. I, 16; People v. Wheeler (1978) 22 Cal.3d 258, 265 []). [Citation.] What is required is that the jurors unanimously agree defendant is criminally responsible for one discrete criminal event. (People v. Davis (1992) 8 Cal. App. 4th 28, 41 [10 Cal.Rptr.2d 381], original italics.) [W]hen the accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed . . . that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act. (People v. Gordon (1985) 165 Cal. App. 3d 839, 853 [212 Cal.Rptr. 174], fn. omitted, original italics.) (People v. Thompson (1995) 36 Cal.App.4th 843, 850 (Thompson); accord People v. Norman (2007) 157 Cal.App.4th 460, 464.)

[N]o unanimity instruction is required, however, where the acts proved constitute a continuous course of conduct. [Citation.] This exception arises in two contexts. The first is when the acts are so closely connected that they form part of one and the same transaction, and thus one offense. [Citation.] The second is when . . . the statute contemplates a continuous course of conduct of a series of acts over a period of time. (People v. Napoles (2002) 104 Cal.App.4th 108, 115; see Thompson, supra, 36 Cal.App.4th at p. 851.) This is because in both cases, the multiple acts constitute one discrete criminal event. [Citation.] (People v. Sanchez (2001) 94 Cal.App.4th 622, 631.) Section 273a is a statute falling within the second category. (People v. Ewing (1977) 72 Cal.App.3d 714, 717.) No unanimity instruction was required.

V.

Ineffective Assistance Of Counsel In Failing To Object To Prosecutorial Misconduct In Closing Argument

Defendant claims the prosecutor committed misconduct in his closing argument by (1) making the statement that K. had put his body between his mother and defendants pointed gun, (2) offering his own unsupported expert testimony about blood-alcohol testing and why no alcohol was detected in defendants blood, and (3) taking unfair advantage of the trial courts ruling permitting the introduction of defendants prior misdemeanor assaults and restricting cross-examination of Charissa regarding her pain medication use. Recognizing his counsels failure to object to each of these matters, defendant contends his counsel rendered ineffective assistance.

A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such unfairness as to make the resulting conviction a denial of due process. [Citations.] Under state law, a prosecutor who uses deceptive or reprehensible methods commits misconduct even when those actions do not result in a fundamentally unfair trial. [Citation.] (People v. Cook (2006) 39 Cal.4th 566, 606, italics added; see also People v. Hoyos (2007) 41 Cal.4th 872, 923; People v. Ledesma (2006) 39 Cal.4th 641, 726.)

A defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety. [Citation.] A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsels inaction violated the defendants constitutional right to the effective assistance of counsel. The appellate record, however, rarely shows that the failure to object was the result of counsels incompetence; generally, such claims are more appropriately litigated on habeas corpus, which allows for an evidentiary hearing where the reasons for defense counsels actions or omissions can be explored. [Citation.] (People v. Lopez (2008) 42 Cal.4th 960, 965-966 (Lopez).)

A. Prosecutors Statement Regarding K.

The prosecutor in his opening statement told the jury the evidence would show that when defendant pointed the loaded rifle at Charissa, K. stood up, got in front of his mother and told defendant not to shoot his mommy. Defendant contends no witness testified to this, but the prosecutor nevertheless argued in his closing argument that K. jumped up and put his body in front of his mother and screamed at defendant not to shoot my mommy. Dont shoot my mommy. Defendant claims his counsel provided ineffective assistance for failing to object to the prosecutors highly inflammatory and factually unsupported argument that [K.] had put his body between his mother and [defendants] pointed gun. We disagree.

Although there was no express testimony that K. was between Charissa and defendant when defendant pointed the gun at Charissa, there appears to be evidence from which the jury could conclude that was the case. Charissa testified defendant took M. and put her in her bassinet on the other side of the bedroom so M. was separated from Charissa, the other two children, and defendant. Defendant then took up the rifle and pointed it at Charissa. When defendant moved out of the doorway, Charissa took her chance to escape. From this testimony, it appears defendant was by the doorway of the bedroom on the same side of the room as Charissa when he pointed the rifle at her. K. testified he was at the edge of the bed in the corner of the room while Charissa was at her bed. Both of them were on the right side of the bed. A diagram of the layout of the house, including the bedrooms, was admitted into evidence as defense exhibit K.

As there appears to be evidence supporting the prosecutors argument regarding the position of family, there was no basis for defense counsel to object on this ground and the failure to object was not ineffective assistance of counsel. (Lopez, supra, 42 Cal.4th at p. 968; People v. Felix (1994) 23 Cal.App.4th 1385, 1395 (Felix).)

B. Prosecutors Argument Regarding Defendants Blood-Alcohol Level

Defendant argued in his closing argument that Charissa was unbelievable because, in part, she was not being truthful when she said defendant was drunk, that he smelled of alcohol and was slurring his speech, when the evidence showed defendant had no alcohol in his blood when it was tested. In response, the prosecutor argued in rebuttal as follows:

Defense argues that the victims unbelievable because she says the defendant was drunk. Well, again with the read back. She testifies that he smelled of alcohol and he had a slight slur. He was walking fine. She never saw him drink.

And thats important. She gets home at about 12:30 that afternoon. She says defendant said he had a couple of drinks and that he has some minor show of having been drinking.

The cops dont have any contact with him until 5:30. And lets be honest, theyre not really interested in whether hes slightly intoxicated or not. They have bigger fish to fry that day.

And the blood is not taken at the very earliest until after hes transported to the hospital, right. Nobody is out there taking blood of this guy whos just been in a fight with cops, and has been subdued, and is bleeding out of his head.

So lets assume, based on the timeline weve all been given, that blood isnt taken at the hospital until after 6 oclock because thats when everybody starts to cleanup the scene and getting transferred out.

So the fact that he has no alcohol in his system five and a half or six hours after he stopped drinking, you dont have any testimony about how fast alcohol works its way of the system. But anybody who has ever had a drink knows, six hours later you have nothing left. You are not drunk anymore. Alcohol goes out of your system. So what that he has no alcohol, it does not mean shes lying.

Defendant complains the italized portion of the prosecutors argument constituted prejudicial misconduct because it was the prosecutors own factually unsupported, unsworn expert testimony. (People v. Bolton (1979) 23 Cal.3d 208, 213.) However, [c]ounsel may argue facts not in evidence that are common knowledge or drawn from common experiences. [Citation.] (People v. Young (2005) 34 Cal.4th 1149, 1197.) The fact that alcohol metabolizes and dissipates over time and that a person who has had only a couple of drinks will likely not have any alcohol left in their blood system after at least six hours are such facts.

As there was no basis for defense counsel to object, the failure to object was not ineffective assistance of counsel. (Lopez, supra, 42 Cal.4th at p. 968; Felix, supra, 23 Cal.App.4th at p. 1395.)

C. Prosecutors Argument Regarding Defendants Prior Assaults

In closing argument, the prosecution told the jury:

Its very easy for me to get [defendant] agitated on the stand, very easy. And the reason I did that was to give you a view through the window into the soul of the domestic violence abuser, somebody who is easily agitated, who is a controlling personality.

Later, the prosecutor argued that defendants prior assaults of two women could be used by the jury in determining defendants credibility. The prosecutor told the jury that the reason it got to hear the evidence regarding the assaults was because defendant had made some statement about you dont hurt women. You dont do that. Men, were bigger, you dont hurt women. Hes trying to lead you to believe that he doesnt hurt women. Well we know that he assaulted two women in the 90s, aside from Charissa. And you get to judge that regarding [defendants] believability.

Defendant responded in his argument:

Now the prosecutor mentioned the 95 and 98 simple assaults that [defendant] admitted to on the stand. Okay, if you have any questions about any of this stuff, obviously youd be able to ask the judge about that. And thats true when you are deliberating as well, any questions about any of the instructions.

The judge gave whats called a limiting instruction after [defendant] admitted a simple assault in 95 and 98. And the limiting instruction was you only consider it for [defendants] credibility.

Now its very tempting and its human instinct to want to take that further and say simple assault before, twice, well, its probably more likely guilty of assault in this case.

You are absolutely not allowed to do that, and you can ask the judge if theres any debate about that. You are only allowed to consider it for [defendants] credibility on the stand, period.

And again simple assault, were not talking aggravated assault, were not talking any injuries, any weapons, anything, okay.

The prosecutors objection to the last statement was sustained by the trial court.

The prosecutor returned to the issue in his rebuttal argument as follows:

[Defense counsel] brought up the 1995 and 1998 assaults. And hes absolutely right, you can only use that to determine [defendants] credibility. You cant determine it to say, well, hes hit a woman before, he must have hit a woman this type [sic].

But then he put up some other information up there, no weapons, no injuries. There is no evidence of that. Because its only about [defendants] credibility, you dont have any facts. You dont know anything about weapons, no weapons, injuries, no injuries, and so its speculation and its inappropriate argument to tell you something thats not in evidence, whether its true or not.

My argument, first time around and this time around, sticks to the facts, and the law, and how they work together.

Defendant complains on appeal that the first quoted portion of the prosecutors argument improperly used the evidence of defendants prior assaults to argue his character as an abuser. He complains the remaining quoted portions of the prosecutors argument not only used the evidence of assault for propensity, but suggested the prior assaults were factually similar to the assault of Charissa charged in this case. We find neither misconduct nor ineffective assistance of counsel.

The trial court admitted the evidence of defendants prior assaults under both section 1103 and as impeachment evidence. We have concluded the evidence was properly admitted under section 1103. Section 1101, subdivision (a), provides that section 1103 is an exception to the general rule that character evidence is not admissible to prove conduct on a specified occasion. That is, character evidence admitted under section 1103 may be used to prove conduct on a specified occasion; in other words, propensity. Here defendants character for violence evidenced by his prior assaults could properly be used to show his violence in this case. Therefore, even if we were to conclude the prosecutors argument strayed into a propensity argument, such argument would not be misconduct. In fact, defendant benefitted from the trial court providing a limiting instruction that was unnecessary and argument that emphasized a limited use of the evidence.

To the extent the prosecutor suggested the prior assaults were factually similar, defense counsel reasonably chose to address the point in his closing argument. The prosecutors rebuttal then emphasized to the jury that it had no evidence before it whether weapons or injuries were involved. We conclude the jury could not have been left with the impression after all of the arguments that the assaults were factually similar. Moreover, the jury was instructed as to the requirements of simple assault as a lesser included offense to the charged assault with a firearm. (Judicial Council of Cal. Crim. Jury Instns. (2006-2007), CALCRIM No. 915.) The jury would have known assault did not necessarily mean defendant hit the other women. Defense counsel reasonably could have chosen to not belabor the point further and draw even further attention to defendants priors.

D. Prosecutors Argument Regarding Defendants Use Of Pain Medication

The prosecutor told the jury it should consider how the number of substances that were in [defendants] blood affected defendants ability to perceive. We have already rejected defendants claim that this comment improperly directed the jurys attention to the effect of pain medication on defendant when the defense was precluded from making the same argument for Charissa. The prosecutors argument did not mention or single out defendants use of painkillers, but directed the jury to keep in mind the combination of substances in defendants system when it considered defendants ability to perceive. In effect, the prosecutor argued it was possible defendant was affected by all the substances ingested.

Defendant did not object to the prosecutors argument. To the extent an objection would have been appropriate to clarify that there was no evidence regarding the effect of the pain medication on defendant or the nature of the effect the combination of substances ingested by defendant would likely have had, we cannot find defense counsel was ineffective for failing to object to the argument that an effect was possible. [C]ompetent counsel may often choose to forgo even a valid objection. [I]n the heat of a trial, defense counsel is best able to determine proper tactics in the light of the jurys apparent reaction to the proceedings. The choice of when to object is inherently a matter of trial tactics not ordinarily reviewable on appeal. [Citation.] (People v. Riel (2000) 22 Cal.4th 1153, 1197; accord People v. Hillhouse (2002) 27 Cal.4th 469, 502.) Here defense counsel could have believed the benefit of the clarification risked drawing the jurys attention to the evidence of all the substances in defendants system.

VI.

Upper Term Sentencing

Defendant was sentenced to the upper term of four years on his conviction of assault with a firearm ( 245, subd. (a)(2)), the upper term of 10 years on the firearm use enhancement ( 12022.5, subd. (a)(1)), and to a concurrent upper term of four years on his conviction for infliction of corporal injury on his spouse. ( 273.5, subd. (a).) (RT 1106-1008) Defendant claims the imposition of the upper terms violated Cunningham, supra, 549 U.S. 270 [166 L.Ed.2d 856]. We disagree.

In Cunningham, the Supreme Court analyzed Californias determinate sentencing law and held that by assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated upper term sentence, violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. (Cunningham, supra, at p. 274 [166 L.Ed.2d at p. 864].) However, defendant was sentenced on October 9, 2007, after both the California Supreme Court's decision in People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval) and the Legislatures response to Cunningham, Senate Bill No. 40 (stats. 2007, ch. 3, 2).

Senate Bill No. 40 amended the determinate sentencing law so that: (1) the middle term is no longer the presumptive term absent aggravating or mitigating facts found by the trial judge; and (2) a trial judge has the discretion to impose an upper, middle or lower term based on reasons he or she states. As amended, section 1170 now provides as pertinent: When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. . . . The court shall select the term which, in the courts discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected . . . . ( 1170, subd. (b).)

Senate Bill No. 40 cures the constitutional defect in the determinate sentencing law identified in Cunningham. (People v. Wilson (2008) 164 Cal.App.4th 988, 992.) Its provisions can be applied retroactively to defendants without violating due process or the prohibition against ex post facto laws. (Sandoval, supra, 41 Cal.4th at pp. 854-857.)

Here the trial court noted both Sandoval and Senate Bill No. 40. It recognized the Legislature had not amended section 1170.1, subdivision (d), for enhancement triads in a manner similar to the amendment of section 1170, subdivision (b), by Senate Bill No. 40, but decided it would exercise its authority to judicially reform section 1170.1, subdivision (d), to apply the provisions of amended section 1170, subdivision (b), to the enhancement. (Sandoval, supra, 41 Cal.4th at pp. 849-852.)

The trial court imposed the upper term on defendants assault conviction, the upper term on defendants firearm use enhancement, and the upper term on defendants corporal injury of a spouse conviction based on defendants numerous prior convictions of increasing seriousness, the fact the crime involved a threat of great bodily harm, disclosing a high degree of cruelty, viciousness or callousness[,] and the fact defendants violent conduct indicates a serious danger to society. The trial court noted its sentencing satisfied the new sentencing law as it found the upper terms were in the interest of justice and also satisfied the former sentencing procedure as the aggravating factors outweighed the nonexistent mitigating factors. Defendants numerous prior convictions rendered him eligible for the upper terms under People v. Black (2007) 41 Cal.4th 799, 816 (Black II).

The record supports the trial courts findings. Defendants sentence did not violate his federal constitutional rights.

DISPOSITION

The judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

SCOTLAND , P. J.

NICHOLSON , J.

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