P. v. Tate

Filed 8/29/06 P. v. Tate CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Defendant Archie Ray Tate appeals a judgment entered upon a jury verdict finding him guilty of attempted murder. (Pen. Code, §§ 187, subd. (a), § 664.) The jury also found that the crime was committed willfully, deliberately, and with premeditation (id., § 664, subd. (f)); that defendant used a deadly or dangerous weapon (id., § 12022, subd. (b)(1)); and that he inflicted great bodily injury on the victim (id., § 12022.7). Defendant contends he received ineffective assistance of counsel. We affirm.

I. FACTS AND PROCEDURAL BACKGROUND

Defendant was married to Linda Tate for 11 years.[1] They had an open marriage, in which either one could have sexual relations with other people so long as the other knew about it. The couple first met Donald Elliott in 1995 or 1996. In November of 2002, defendant invited Elliott to engage in sexual encounters with him and Linda, which the three continued to do three to four times a week until February or March of 2003. Defendant was also aware that Elliott and Linda sometimes had sexual relations without him.

Although defendant was initially content with the arrangement, in March of 2003 he complained to Linda that she was giving too much attention to Elliott. Linda told defendant she would not give up her relationship with Elliott. In March 2003, defendant began complaining to a friend, Jennifer Brower, that Linda was not giving him enough attention and that he suspected Linda and Elliott were engaging in sexual encounters without his knowledge.

Defendant and Linda got into an argument as Linda was attempting to leave for work on March 30, 2003. As Linda was driving her truck out of the driveway, defendant approached her with a crow bar, threatening to break the windows unless she stopped and got out of the truck. Linda stopped the truck and got out. As Linda was getting into the passenger side, defendant kicked her once in the buttocks and told her that if she told anyone what had happened no one would believe her. Defendant drove Linda to her place of work, where they again got into an argument because Linda did not want defendant to drive her truck. She opened the hood of the truck and removed the coil so that defendant would not be able to start the engine. As she was walking away, defendant came up from behind and pushed her to the ground. Elliott, who was watching from the doorway, yelled that he was going to call the police. The police arrived, questioned defendant, and took him to jail.

Linda obtained an emergency protective order on March 30, 2003, restraining defendant from contacting her and requiring him to move out of their home immediately. Three days later, defendant pleaded no contest to misdemeanor battery and was placed on three years' probation, with a protective order prohibiting him from having any contact with Linda.

When he was released from jail, defendant moved in with his mother, but was unable to pick up any of his belongings from the home he had shared with Linda because of the protective order. Defendant was angry at Elliott and frustrated with the situation, and several times told Brower that he believed Elliott had caused all of his problems. Defendant told Brower he blamed Elliott for encouraging his wife to bring charges against him rather than continuing to give in to him; he believed Elliott's willingness to help her was the source of his wife's new courage.

On the evening of April 20, 2003, Elliott stopped at John's Liquors to buy some beer and cigarettes. Moments after Elliott left the store, the clerk found him lying unconscious in the store's parking lot. Elliott had suffered a minimum of two blows to the head which had fractured his skull to the base. The injury to Elliott's brain was severe and life-threatening. The injury was consistent with being forcefully hit in the head with a wooden baseball bat. There were no eyewitnesses to the attack.

Ten days later, defendant was out with Brower and another friend, Daniel Richards. While Brower was in the restroom, defendant told Richards that he had hidden in the bushes and attacked Elliott from behind with a baseball bat on the night of April 20. When Brower returned, Richards told her defendant had put Elliott in the hospital. Brower and Richards told the police what defendant had said, and Brower agreed to participate in a conversation with defendant that was secretly tape-recorded by the police. In that conversation, defendant said that striking a human skull with a baseball bat was like hitting a hardball and that there was no way Elliott had seen him or would remember anything about the attack. Defendant was arrested and taken to the police station, where he told police that he might have stopped by John's Liquors on the night of April 20, 2003, but that he could not remember exactly.

Testifying in his own defense, defendant denied any involvement with the attack on Elliott and claimed he had falsely confessed to Richards and Brower.

On cross-examination, the prosecutor asked defendant whether his wife had pressed charges for earlier acts of domestic violence. Defendant replied that he had not committed any such acts before the incident that occurred on March 30, 2003. In rebuttal, the prosecution recalled Linda, who testified that defendant had hit her on the head on 30 or more occasions before March 30, 2003, but that until then she had never called the police. The judge instructed the jury that the evidence of other crimes could not be used to draw inferences about defendant's bad character or his criminal disposition, but only for the limited purpose of proving either a motive for the charged crime or the truthfulness of any fact testified to by the defendant. (CALJIC No. 2.50.) In the closing argument, the prosecutor argued that defendant felt Elliott had empowered Linda to handle his current domestic violence differently than earlier instances, and told the jurors they could use Linda's rebuttal evidence to infer that defendant had lied on the stand, but not to conclude that he had a propensity to commit violent acts.

II. DISCUSSION

Defendant's sole contention on appeal is that he was denied effective assistance of counsel when his attorney failed to object on relevance grounds to Linda's rebuttal testimony regarding his history of spousal abuse prior to March 30, 2003. According to defendant, the evidence was irrelevant and therefore inadmissible under Evidence Code section 350, which provides that "[n]o evidence is admissible except relevant evidence."?

"The right to adequate assistance of counsel, grounded on the Sixth Amendment of the United States Constitution and section 15 of article I of the California Constitution, is in addition to the general due process protection of a fair trial; it focuses 'on the quality of the representation provided the accused.' "? (People v. Nation (1980) 26 Cal.3d 169, 178.) To prevail on an ineffective-assistance claim, a defendant must establish deficient performance by counsel and that the inadequate performance prejudiced the defendant's case. (People v. Ledesma (1987) 43 Cal.3d 171, 217.) "[An] attorney's failure to object . . . to seriously damaging, inadmissible evidence which played a major role in the verdict of guilt"? may signify constitutionally ineffective assistance. (People v. Sundlee (1977) 70 Cal.App.3d 477, 485.)

To establish deficient performance by counsel, a defendant must demonstrate that "counsel's representation fell below an objective standard of reasonableness under prevailing professional norms." (People v. Carter (2003) 30 Cal.4th 1166, 1211.) Absent evidence to the contrary, the court will presume "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy."? (Ibid.) Therefore, when counsel's reasons for his or her actions are not reflected in the record on appeal, defendant bears the burden of establishing that "there simply could be no satisfactory explanation" for counsel's actions. (People v. Pope (1979) 23 Cal.3d 412, 426.)

Here, we disagree with defendant's premise that the rebuttal evidence was not relevant. Although evidence of a defendant's prior criminal acts is not admissible to prove bad character or a predisposition to criminality, it is admissible to prove other material facts, such as motive or identity. (Evid. Code, § 1101; People v. Douglas (1990) 50 Cal.3d 468, 510, disapproved on another ground in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.) It was the prosecution's theory that defendant was angry at Elliott because he believed that Elliott's relationship with Linda had given her courage to do things she had not done in the past, such as seek a protective order. The fact that defendant had struck Linda in the past supported the prosecution's theory that Linda's attitude toward him had changed because of Elliott.

Additionally, Linda's rebuttal testimony was relevant to attack the credibility of defendant's testimony, since he had testified that he had never committed domestic violence before the March 30, 2003, incident. "[A] witness who makes a sweeping statement on direct or cross-examination may open the door to use of otherwise inadmissible evidence of prior misconduct for the purpose of contradicting such testimony." (Andrews v. City and County of San Francisco (1988) 205 Cal.App.3d 938, 946; see also People v. Humiston (1993) 20 Cal.App.4th 460, 479-480; Evid. Code, § 780, subd. (i).)

Since we find the rebuttal evidence was relevant, we reject defendant's contention that his trial counsel was incompetent in failing to object to it on relevancy grounds. (See People v. Archer (1989) 215 Cal.App.3d 197, 209.) Defendant has not met his burden to show that his counsel's actions fell outside the wide range of professional competence. (See People v. Carter, supra, 30 Cal.4th at p. 1211.) His claim for ineffective assistance of counsel therefore fails, and we need not consider whether his trial counsel's actions prejudiced him.

III. DISPOSITION

The judgment is affirmed.

________________________

RIVERA, J.

We concur:

___________________________

RUVOLO, P.J.

___________________________

REARDON, J.

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[1] Because defendant and Linda Tate share a last name, we will refer to Linda Tate as Linda. We mean no disrespect by this designation.