P. v. Venegas

 

 

 

 

 

 

Filed 7/2/13  P. v. Venegas CA1/1

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

FIRST
APPELLATE DISTRICT

 

DIVISION
ONE

 

 
>

THE PEOPLE,             Plaintiff and Respondent, v. GREGORIO MARIN VENEGAS,             Defendant and Appellant.

A133996         (San Mateo County       Super. Ct. No. SC072740)

 

            A
jury convicted defendant Gregorio Marin Venegas of href="http://www.fearnotlaw.com/">assaulting and inflicting great bodily injury
upon Salvador Flores.  At trial, the
district attorney questioned defendant about an earlier incident, then being
separately charged as misdemeanor vandalism, in which he lit his
ex-girlfriend’s clothes on fire. 
Defendant asserts evidence of this prior misconduct was inadmissible and
the prosecutor’s questioning and argument to the jury violated his Fifth
Amendment right against compelled self-incrimination.  We reject defendant’s assertions and affirm.

>Factual and Procedural Background

            Defendant
lived with his mother in a house in South San Francisco.  The victim Flores and his girlfriend,
Margarita Hernandez, rented, from defendant’s mother, a studio apartment
located on the same property.

            Just
after midnight on February 28, 2010, defendant saw Flores’s car parked in defendant’s
driveway, a place Flores was told he could not park.  According to Flores’s girlfriend Hernandez,
defendant came over to the studio and banged on the door—a sliding glass patio
door—and, calling Hernandez by name, told her to tell Flores to move his
car.  Hernandez responded that Flores had been drinking and the
car would have to wait until morning. 
Defendant insisted she rouse Flores from bed or he would damage the car.  Flores awoke on his own and told Hernandez and defendant it
should wait until the morning. 

            The
two men, defendant still outside by the door and Flores in the studio, then began
to argue.  Flores claims he then begrudgingly
said he would move the car and started walking toward the door.  According to Flores, he went outside, where
defendant struck him, sending him to the ground for, according to
Hernandez,  three minutes.  Flores then got up, walked forward—away from the studio and
toward the car—and defendant struck Flores in the face and Flores fell to the ground a second
time.  While Flores was down, defendant hit or
kicked him, saying “this is the way I wanted to have you.”  Defendant then left.  Flores had blood on his face and could not walk. 

            Defendant’s
version of events was somewhat different. 
After knocking on Flores’s door, he saw Flores sitting awake on a bed just
inside the studio.  Defendant asked Flores to move the car, but Flores refused.  Defendant repeated his demand, saying he did
not want to have to call a towing company. 
Defendant and Flores began to argue. 
Then, Flores came towards the door.  Defendant claims Flores, looking intoxicated,
approached him and took the first swing. 
Defendant then hit Flores, who fell to the ground.  Flores, after blacking out for “a split
second,” got up, threw two punches at the air, after which defendant hit Flores
again two or three times.  Flores, again on the ground,
grabbed defendant’s leg and only let go after defendant hit him one last
time.  Defendant then called the
police. 

            The
district attorney filed a two-count information on January
31, 2011, accusing defendant of assault with force likely to cause great bodily
injury (Pen. Code, § 245,href="#_ftn1"
name="_ftnref1" title="">[1] subd. (a)(1)) and
inflicting serious bodily injury (§ 243, subd. (d)).  The information further alleged, with respect
to each count, defendant personally inflicted great bodily harm
(§ 12022.7, subd. (a)) rendering each count a “serious felony”
(§ 1192.7, subd. (c)(8)).

            Trial
began on August 8, 2011.  On August 10,
2011,
toward the end of the prosecution’s case, the district attorney informed the
trial court he wanted to impeach defendant, if he testified, with evidence he
previously vandalized an ex-girlfriend’s clothes.  The court requested briefing, and so, later
in the day, the district attorney filed a written motion.  The motion stated defendant had, as witnessed
by his mother, “burnt all of his girlfriend[’s] clothes following an argument”
and that this conduct constituted vandalism under Penal Code section 594.  It cited criminal cases pending against
defendant, presumably encompassing the vandalism charge, case Nos. NM395165 and
NM394570.  Even though these cases had
not proceeded to any final determination, the motion confusingly requested
admission of both defendant’s conduct and his “convictions.” 

            When
defendant took the stand near the end of the day on August 10, he asserted
Flores threw the first punch and that he acted in href="http://www.fearnotlaw.com/">self-defense.  On cross-examination, this exchange occurred:

 

“Q.       And
your—Do you feel that you have a quick temper?

“A.       No.

“Q.       No?

“A.       No.

“Q.       I’m
going to ask you about an incident that took place on March 3rd of 2010.

“A.       Uh-huh.

“Q.       Do
you recall which incident I’m asking you about?

“A.       No,
I don’t.

“Q.       And
do you know an individual by the name of Magdalena?

“A.       Yes.

“Q.       And
who is Magdalena to you?

“A.       Magdalena
was my girlfriend at that time.

“Q.       Your
ex-girlfriend?

“A.       Yes.

“Q.       So,
do you recall what happened on May 3rd of 2010?

“A.       Um,
if you’re talking about when—the time I—

“THE COURT: 
You can answer that with a yes or a no.

“WITNESS:   
Yes.

“[DISTRICT ATTORNEY]:  Q.         Okay.  Did you do something to her personal
property?

“A.       Yes.

“Q.       What
did you do?

“A.       I
vandalized her clothes.

“Q.       What
did you do to the clothes?

“[DEFENSE COUNSEL]:  Objection, Your Honor.  I think we—may we

            approach?

“THE COURT: 
Yes.

“(Discussion between Court and counsel not
reported.)

“[DISTRICT ATTORNEY]:   Q. 
Okay.  Again, just to be specific,
I’m asking you

about an incident that happened May 3rd of
2010, okay?  Do you understand?

“A.       Yes.

“Q.       There
was an incident that occurred at this residence—

“THE COURT: 
We’ve already—

“[DISTRICT ATTORNEY]:   Q. 
—in the backyard.

“THE COURT: 
We’ve already been there and done that. 
There was a vandalism.

“[DISTRICT ATTORNEY]:   Q. 
What was the nature of the vandalism you did to

            your
ex-girlfriend’s clothing?

“A.       I
destroyed her clothes.

“Q.       I
want you to be specific.  What did you do
to your ex-girlfriend’s clothes in that backyard?

“[WITNESS:] 
A.  I burned—I burned her
clothes.  If you’re asking me to be

            specific,
I –

“THE COURT: 
That’s fine.  Thank you.”

 

            At no
time did defendant put objections to this exchange on the record.

During closing argument the
following day, the district attorney argued:

 

“His prior conduct shows him to be
untrustworthy.  And he can’t admit to the
conduct.  Now, specifically, that’s
concerning the actions that came out that he had burned his girlfriend’s
clothing.” 

And continued:

 

“When you start pressing him on those things
[such as which leg Flores grabbed], he starts not having answers.

 

“And I asked him a simple question of what
happened in March—excuse me—actually, it was in May of 2010.  There was an incident that can be presented
to you that the Judge, under the law, allows, for you to weigh his
credibility.  There’s this issue that
happens in May where he burns his girlfriend’s clothes.

 

“When we start to ask defendant about that,
you have to look at the way he’s answering that question.  He’s answering in the way he wants to.  He says, well, I vandalized my girlfriend’s
clothing.  That’s a very legal answer to
what he did.  I asked him again, pulling
the truth out of him, okay.  You know,
and he knows we know what happened.

 

“All right. 
Gregorio, why don’t you admit what happened.  Well, okay. 
I destroyed my girlfriend’s clothes. 
All right.  Why don’t you actually
tell us what you did.  Well, actually, I
burned all of my girlfriend’s clothes. 
Okay.  It took three questions to
get the truth out of him.  And he was
holding back.  He doesn’t want to take
responsibility for what he did.” 

            Defense
counsel never objected during this portion of the district attorney’s closing
argument.

            Defendant’s
closing argument focused on defendant’s testimony that Flores was the aggressor
and defendant acted in self-defense.

            After
a few hours of deliberation, the jury found defendant guilty of both counts and
the section 12022.7 enhancement.  On
October 4, 2011, the trial court imposed a suspended sentence and placed
defendant three years’ probation, which included a six-month term in county
jail.  Defendant filed a notice of appeal
on December 2, 2011. 

>Discussion

            Defendant asserts the trial court
should have disallowed questions and argument about the May 2010 vandalism.

>Waiver

            Defendant has forfeited review of
his claims on appeal because he did not first raise them as objections in the
trial court.  Failure to object to alleged
erroneous evidentiary rulings or instances of improper argument waives these
issues for appellate review.  (Evid.
Code, § 353 [no reversal “by reason of the erroneous admission of
evidence” unless a timely, specific objection made and the erroneous admission
was prejudicial]; People v. Williams
(1998) 17 Cal.4th 148, 161–162, fn. 6; People
v. Visciotti (1992) 2 Cal.4th 1, 51–52, 54 [failure to raise objection to
evidence “bars reversal”; failure to object to alleged misconduct fails to
preserve issue].)

            This is not a case where the parties
or trial court later put unrecorded, sidebar objections on the record, nor is
this a capital case in which the government bore responsibility for assuring a
record of proceedings was being kept. 
(Cf. People v. Dykes (2009) 46 Cal.4th 731, 800,
fn. 16 [addressing both scenarios]; People
v. Cummings (1993) 4 Cal.4th 1233, 1334–1335, fn. 70 [distinguishing
capital cases]; see also Code Civ. Proc., §
269, subd. (a)(2) [a reporter's transcript of proceedings is required “on the
order of the court or at the request of the prosecution, the defendant, or the
attorney for the defendant”]; People v. Turner (1998) 67 Cal.App.4th 1258,
1264 [under section 269, non-capital defendants have only “a statutory right to
have the proceedings recorded . . . , which right can be waived”]; >People v. Manson
(1976) 61 Cal.App.3d 102, 214 [“In the absence of request that a record be made
of a conference between court and counsel, none is required.”].)

Ineffective
Assistance of Counsel

            Realizing this court might find his
appellate arguments forfeited, defendant has asked us to consider whether his
trial counsel’s failure to object constituted ineffective assistance of
counsel.  (See, e.g., People v.
Roberts (2011) 195 Cal.App.4th 1106, 1130 [addressing whether forfeiture
resulted in ineffective assistance].)

            “To prevail on a claim of
ineffective assistance of counsel, defendant ‘must establish not only deficient
performance, i.e., representation below an objective standard of
reasonableness, but also resultant prejudice. . . .’  [Citations.]” 
(People v. Hart (1999) 20 Cal.4th 546, 623–624.)

            Ineffective assistance
claims based upon the failure to make objections “are routinely denied on the
bases that the unasserted objection was nonmeritorious and would have been
overruled (see, e.g., People v. Majors (1998) 18 Cal.4th 385, 403–404,
75 Cal.Rptr.2d 684, 956 P.2d 1137; People v. Cudjo (1993) 6 Cal.4th
585, 616 . . .); the existence of a tactical reason for defense counsel’s
failure to assert the objection (see, e.g., People v. Diaz (1992) 3
Cal.4th 495, 560 . . . ; People v. Kelly (1992) 1 Cal.4th 495, 520–523 .
. .); or the lack of a showing of an outcome prejudicial to the defendant as a
result of the introduction of the evidence (see, e.g., People v. Huggins
(2006) 38 Cal.4th 175, 248–249 . . . ; People v. Gray (2005) 37 Cal.4th
168, 208 . . .).”  (People v. Roberts, supra, 195 Cal.App.4th at p.
1131.)

            Thus, although defendant has
forfeited his claims, we consider their substance in order to dispose of the href="http://www.mcmillanlaw.com/">ineffective assistance argument.  (See People v. Coffman and Marlow
(2004) 34 Cal.4th 1, 82 [“Because, however, he asserts counsel rendered
ineffective assistance in failing to preserve the point, we address its
substance.”]; People v. Gutierrez (2002) 28 Cal.4th 1083, 1140
[“Accordingly, defendant’s alternative claim that counsel rendered ineffective assistance in failing to object must be rejected; counsel
undoubtedly realized an objection would have been unavailing.”]; People v.
Cunningham (2001) 25 Cal.4th 926, 1003 [failure to object to
unobjectionable material not ineffective assistance].)  As we explain, we conclude no error occurred,
foreclosing any claim of ineffective assistance of counsel.  (See People v. Gutierrez, >supra, 28 Cal.4th at p. 1140.) 

>            Admission of Evidence of Vandalism

            According to the district attorney’s
evidentiary motion, defendant had been charged with misdemeanor vandalism, in
violation of Penal Code section 594, for burning his ex-girlfriend’s clothing
after a May 2010 argument.  The trial
court ultimately allowed evidence of the vandalism, but not the pending
charge. 

            Section 594 defines vandalism as the
malicious destruction or damage of any real or personal property.  (§ 594, subd. (a); People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1281.)  The parties do not dispute that a conviction
for vandalism evinces moral turpitude, and thus could serve as the basis for
impeachment.  (See People v. Campbell (1994)
23 Cal.App.4th 1488, 1492–1495.) 
However, the vandalism charge was only pending at the time of trial;
there was no conviction.  Defendant
asserts without the conviction, evidence of the vandalism was inadmissible
propensity evidence.  (See Evid. Code,
§ 1101, subd. (a).)

            A defendant, however, may be
impeached with evidence of misdemeanor criminal conduct that has not resulted
in a conviction.  (People v. Wheeler
(1992) 4 Cal.4th 284, 295–296; People v. Lopez (2005) 129 Cal.App.4th
1508, 1522 [“a person can be impeached in a criminal case by evidence of prior
misdemeanor conduct that involves
moral turpitude”]; People v. Lepolo (1997) 55 Cal.App.4th 85, 89; cf. >People v. Martinez (2002) 103
Cal.App.4th 1071, 1080 [“Although the charges pending against [a non-defendant
witness] at the time constituted only misdemeanors, the conduct underlying
those charges was admissible to impeach despite the lack of a
conviction.”].) 

            In People v. Wheeler, supra,
4 Cal.4th 284, the Supreme Court considered whether a witness in a criminal
proceeding might be impeached with misdemeanor conduct.  The court held that evidence of past
misdemeanor conduct bearing on a witness’s veracity was admissible in a
criminal proceeding subject to the trial court’s discretion.  (Id. at p. 295.)  The court concluded “[m]isconduct involving
moral turpitude may suggest a willingness to lie [citations], and this
inference is not limited to conduct which resulted in a felony conviction . . .
.  [¶] Of course, the admissibility of
any past misconduct for impeachment is limited at the outset by the relevance
requirement of moral turpitude.”  (Id.
at pp. 295–296.)  Subject to the moral
turpitude requirement, immoral conduct is admissible for impeachment even
though the witness was not convicted, or even if the conduct did not constitute
a criminal offense.  (Id. at p.
297, fn. 7.)

            In this case, defendant admitted the
prior conduct, burning his ex girlfriend’s clothing.  He insists, however, he never admitted
malicious intent—the element of vandalism imbuing the crime with moral
turpitude (see People v. Campbell, supra, 23 Cal.App.4th at pp. 1492–1495)—and
the district attorney never put forward an offer of proof under Evidence Code
section 403 that addressed this element of vandalism. 

            Intent, however, is “rarely
susceptible of direct proof and must therefore be proven
circumstantially.”  (People v. Thomas (2011) 52 Cal.4th 336, 355.)  In a vandalism case, malicious intent may be
inferred from the “commission of any
wrongful act that caused damage.”  (>People v. Kurtenbach, >supra, 204 Cal.App.4th at p. 1282.)  Thus, in People
v. Kurtenbach, the court held malice giving rise to vandalism could be
either an “ ‘actual ill will or intent to injure’ ” or “ ‘ “presumed” or
“implied” from the intentional doing of the act without justification or excuse
or mitigating circumstances.’ ”  (>Ibid.) 
“Kurtenbach’s wrongful act was his participation in the arson of his
house. That wrongful act collaterally damaged the neighbors’ house, satisfying
the definition of vandalism.”  (>Ibid.)

            Because, as in People v.
Kurtenbach, defendant’s
malicious intent impliedly follows from the nature of defendant’s wrongful act,
we conclude the clothes-burning incident underlying defendant’s misdemeanor
vandalism charge demonstrated moral turpitude. 
Therefore, evidence of the vandalism was relevant impeachment evidence
bearing on defendant’s credibility, rather than impermissible propensity
evidence, and could be used for impeachment without violating defendant’s due
process.  (See Evid. Code, § 1101,
subds. (a), (c);  People v. Castro (1985) 38 Cal.3d 301, 315 [carefully considering,
but rejecting due process concerns arising from impeachment with a crime like
vandalism, “which involves moral turpitude other than dishonesty”].)

            We must next consider whether
admission of this evidence, even if relevant, ran afoul of Evidence Code
section 352, which provides:  “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.” 

            “[E]vidence of misconduct not
amounting to a felony is less probative of immoral character than is a prior
felony conviction.”  (People v. Clark
(2011) 52 Cal.4th 856, 933, citing People
v. Wheeler, supra,
4 Cal.4th at pp. 296–297 & fn. 7 [nevertheless
allowing impeachment with uncharged misconduct].)  “[I]mpeachment evidence other than a
felony conviction might entail problems of proof, require undue time, or create
confusion,” and can lead to “protracted questioning” concerning the prior
misconduct.  (People v. Clark, supra, at p. 933, citing People v. Wheeler, supra, 4 Cal.4th at pp. 296–297.) 
Thus, while evidence of prior misconduct is relevant, it remains subject
to the trial court’s discretion under Evidence Code section 352, which
“empowers courts to prevent criminal trials from degenerating into nitpicking
wars of attrition over collateral credibility issues.”  (People
v. Wheeler, supra,
4 Cal.4th at p. 296.)

            A trial court’s ruling under section
352 “ ‘must not be disturbed on appeal except on a showing that the court
exercised its discretion in an arbitrary, capricious or patently absurd manner that
resulted in a manifest miscarriage of
justice.  [Citations.]’  [Citation.]” 
(People v. Rodrigues (1994) 8
Cal.4th 1060, 1124–1125, italics omitted.) 
We would only find ineffective assistance of counsel for failing to
raise a section 352 objection if defendant can “demonstrate . . . an objection
on section 352 grounds would have been successful” (People v. Barnett
(1998) 17 Cal.4th 1044, 1131) and if it were “reasonably probable a verdict
more favorable to [defendant] would have been returned had counsel” objected (>People v. Kelley (1990)
220 Cal.App.3d 1358, 1375).

            Recognizing the vandalism
misconduct, as a crime of moral turpitude, had some, albeit limited, probative
value on defendant’s character for truthfulness (People v. Wheeler, supra,> 4 Cal.4th at p. 295 [“ ‘it is
undeniable that a witness’ moral depravity of any kind has “some tendency in
reason” [citation] to shake one’s confidence in his honesty” â€™ â€]),
the trial court appears to have carefully considered and managed any
prejudicial effects of admission as if defendant had in fact had made a section
352 objection.  First, the district
attorney’s motion, though it does not cite to section 352, describes the balancing
of relevance and prejudice the section requires.  Second, questioning on the vandalism was
brief, extending over just two transcript pages in a trial whose testimony
consumed over 200 pages.  (See >People v. Clark, supra, 52 Cal.4th at p. 933 [even though “defendant’s
admissions of wrongdoing were probed in depth” at some points during trial,
“none of the questioning was excessive”].) 
Third, once the district attorney made his point, the trial court
intervened to stop duplicative and unnecessarily detailed questioning and
further inquiry into the vandalism, stating: “[w]e’ve already been there and
done that.  There was a vandalism”; and
“That’s fine.  Thank you.”  Fourth, the trial court instructed the jury
with CALCRIM No. 316, which reads:  “If
you find that a witness has committed a crime or other misconduct, you may
consider that fact [only] in evaluating the credibility of the witness’s
testimony.  The fact that a witness may
have committed a crime or other misconduct does not necessarily destroy or
impair a witness’s credibility.  It is up
to you to decide the weight of that fact and whether that fact makes the
witness less believable.”  (>People v. Anderson (2007) 152
Cal.App.4th 919, 941 [“CALCRIM No. 316 limits consideration of prior crimes
evidence to the issue of credibility”].) 
We are entitled to presume the jury followed this instruction.  (People
v. Holt (1997) 15 Cal.4th 619, 662.)

            We therefore conclude there was no
error in the admission of defendant’s act of vandalism.

Fifth
Amendment

            Defendant also contends his direct
examination never “placed” the vandalism at “issue,” and the district
attorney’s questions about it on cross-examination therefore unlawfully
compelled defendant to incriminate himself. 
(See People v. Bagwell (1974)
38 Cal.App.3d 127, 140 [“forcing defendant to testify on cross-examination to
matters not covered on direct examination, violated her rights under the Fifth
and Fourteenth Amendments”].)href="#_ftn2"
name="_ftnref2" title="">[2] 

            “[A] defendant who speaks in his own
defense cannot avoid testifying fully. 
[¶] â€˜ . . . 
[A] defendant who takes the stand in his own behalf cannot then claim
the privilege against cross-examination on matters reasonably related to the
subject matter of his direct examination.’ ” 
(Jenkins v. Anderson (1980)
447 U.S. 231, 236, fn. 3.)  Thus, when a
defendant “takes the stand and makes a general denial of the crime with which
he is charged, the permissible scope of cross-examination is ‘very wide.’
”  (People
v. Cooper (1991) 53 Cal.3d 771, 822.) 
If a question on cross-examination is relevant, “ â€˜ â€œ[i]t
matters not that the defendant’s answer . . . might tend to establish his guilt
of a collateral offense for which he could still be prosecuted.” ’ ”  (People
v. Coffman and Marlow (2004) 34 Cal.4th 1, 72.)  The defendant, in these circumstances, waives
his privilege against self-incrimination with respect to uncharged collateral
crimes.  (People v. Cooper, at p.
822; People v. Thornton (1974) 11
Cal.3d 738, 760, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12, and abrogated
on other grounds in People v. Martinez
(1999) 20 Cal.4th 225, 234.)  As the
vandalism concerned defendant’s credibility and his claim of self-defense,
questions about it were permissible. 

>Prosecutorial
Misconduct

            Defendant further claims the
district attorney’s reference to the vandalism in closing argument amounted to
prosecutorial misconduct.  Specifically,
defendant complains the district attorney commented on defendant’s “refusal to
incriminate himself with respect to the alleged vandalism.” 

            “[T]he Fifth Amendment, . . . in its
bearing on the States by reason of the Fourteenth Amendment, forbids . . .
comment by the prosecution on the accused’s silence.”  (Griffin
v. California (1965) 380 U.S. 609, 615.) 
“Under the rule in Griffin,
error is committed whenever the prosecutor or the court comments, either
directly or indirectly, upon defendant’s failure to testify in his
defense.  It is well established,
however, that the rule prohibiting comment on defendant’s silence does not
extend to comments on the state of the evidence . . . .”  (People
v. Medina (1995) 11 Cal.4th 694, 755.)

            Here, defendant did not remain
silent, but admitted he vandalized his former girlfriend’s clothing.  The district attorney’s closing argument
highlighted the manner in which defendant admitted the act—that he “held back”
and only reluctantly was forthright—and tried to tie defendant’s manner in
which he acknowledged the vandalism to his credibility.  While this argument appears to have been only
marginally supported by the record—since defendant’s answers reflected the
tenor of the district attorney’s questions (i.e., became more detailed as the
district attorney’s questions became more detailed)—that does not render the
argument unlawful misconduct.  Arguments
during closing not about silence, but
about “credibility as a witness” are “in accord with our longstanding rule that
when a defendant takes the stand, ‘his credibility may be impeached and his
testimony assailed like that of any other witness.’ ”  (Portuondo
v. Agard (2000) 529 U.S. 61, 69, italics omitted.)  Such arguments do not violate the Fifth
Amendment.

Disposition

            The judgment is affirmed.

 

 

                                                                                    _________________________

                                                                                    Banke,
J.

 

 

We concur:

 

 

_________________________

Margulies, Acting P. J.

 

 

_________________________

Dondero, J.