P. v. Ewing

Filed 8/19/09 P. v. Ewing CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Merced County. Brian L. McCabe, Judge.

William I. Parks, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

On November 15, 2006, the Merced County District Attorney filed an amended complaint in Superior Court Case No. MF43296, charging appellant as follows:

Count 1misdemeanor transportation or sale of methamphetamine (Health & Saf. Code, 11379):

Count 2felony possession of methamphetamine for sale (Health & Saf. Code,  11378);

Count 3felony possession of marijuana for sale (Health & Saf. Code, 11359);

Count 4felony active participation in a criminal street gang (Pen. Code^[1],

 186.22, subd. (a)). The district attorney specially alleged the appellant committed the crimes charged in counts 1, 2, and 3 to benefit a criminal street gang ( 186.22, subd. (b)).

On January 22, 2007, appellant pleaded no contest to count 1and admitted the related gang enhancement. In exchange, the prosecution agreed to dismissal of the remaining counts and allegations. Pursuant to the plea agreement, the court imposed a four-year term on count 1 and a consecutive four-year term for the related gang enhancement, suspended those terms, and placed appellant on felony probation for three years.

On June 12, 2007, the probation department filed an affidavit of probation violation because of new charges arising in May and June 2007.

On September 26, 2007, appellant unsuccessfully attempted to file a notice of appeal more than 60 days after sentencing upon his plea of contest.

On February 1, 2008, the court conducted a sentencing hearing in case Nos. MF43296 and MF46331 and sentenced appellant to a total term of 14 years and four months in state prison. As to case No. MF43296, the court imposed a consecutive one year term (one-third of the middle term) on count 1 and a consecutive one year term for the related gang enhancement. The court imposed a $200 restitution fine ( 1202.4. subd. (b)), imposed and suspended a second such fine pending successful completion of parole ( 1202.45), and awarded 120 days of custody credits.

On March 10, 2008, appellant filed a timely notice of appeal from the contested violation of probation ( 1237, subd. (b)).

Case No. MF46331

On August 20, 2007, the Merced County District Attorney filed an information in Case No. MF46331 charging appellant as follows:

Counts 1 and 3--transportation or sale of controlled substances (Health & Saf. Code,  11379) with a prior strike conviction ( 1170.12, subd. (c)(1)), a prior serious felony ( 667, subd. (a)), commission of the substantive offense for the benefit of a criminal street gang ( 186.22, subd. (b)(1)(A)), and commission of the substantive offense with a prior such offense (Health & Saf. Code  11370.2, subd. (c));

Counts 2 and 4--possession of a controlled substance (Health & Saf. Code,  11378) with a prior strike conviction ( 1170.12, subd. (c)(1)), commission of the substantive offense with a prior similar offense (Health & Saf. Code,  11370.2, subd. (c)), commission of the substantive offense for the benefit of a criminal street gang ( 186.22, subd. (b)(1)(A)), and conviction of a prior serious felony ( 667, subd. (a));

Count 5--felony battery upon a peace officer ( 243, subd. (c)(2)) with a prior strike conviction ( 1170.12, subd. (c)(1)), commission of the substantive offense for the benefit of a criminal street gang ( 186.22, subd. (b)(1)(A)), and conviction of a prior serious felony ( 667, subd. (a));

Count 6--felony resisting of an executive officer ( 69) with a prior strike conviction ( 1170.12, subd. (c)(1)), commission of the substantive offense for the benefit of a criminal street gang ( 186.22, subd. (b)(1)(A)), and conviction of a prior serious felony ( 667, subd. (a));

Count 7--felony participation in a criminal street gang ( 186.22, subd. (a)) with a prior strike conviction ( 1170.12, subd. (c)(1)) and conviction of a prior serious felony ( 667, subd. (a));

Count 8--misdemeanor resistance of a public officer ( 148).

On August 22, 2007, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations.

On October 16, 2007, jury trial commenced.

On October 25, 2007, the eighth day of jury trial, the court declared a mistrial as to counts 2 and 8 because the jury had reached a hopeless deadlock. That same day, the jury returned verdicts finding appellant guilty as charges on counts 1, 3, 5, and 6, and not guilty of count 7. The jury also returned a verdict finding appellant guilty of simple possession of a controlled substance (Health & Saf. Code,  11377, subd. (a)), a lesser included offense of that charged in count 4. The jury found none of the gang allegations to be true.

On October 30, 2007, the court conducted a bifurcated hearing on the remaining special allegations and the jury returned verdicts finding those allegations to be true.

On January 2, 2008, appellant filed a sentencing motion seeking the striking of the strike prior, a grant of probation or, in the alternative, mitigated terms and concurrent sentencing. On January 10, 2008, the prosecution filed a written response to the defense motion. On January 31, 2008, the prosecution filed a sentencing memorandum.

On February 1, 2008, the court conducted a sentencing hearing in case Nos. MF43296 and MF46331 and sentenced appellant to a total term of 14 years and four months in state prison. As to case No. MF46331, the court imposed the doubled upper term eight years on count 1and a consecutive term of three years for the Health and Safety Code section 11370.2 enhancement; a consecutive doubled middle term of 16 months on count 5; and concurrent terms on counts 3, 4, and 6. The court imposed a $2,800 restitution fine ( 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole, and awarded 356 days of custody credits.

On March 10, 2008, appellant filed a timely notice of appeal.

STATEMENT OF FACTS

Case No. MF43296

The following facts are taken from the July 5, 2006, report of Merced Police Officer Jeffrey Horn:

On July 4, 2006, Officer Horn was driving eastbound on Brookdale Drive at about 10:43 p.m. While stopped at Cherokee Avenue, Horn saw a black Chevrolet Tahoe stopped and pointed southbound at the intersection of Brookdale and Cherokee. The occupants of the Tahoe were a white male driver and a black male adult passenger. Horn saw the passenger light something inside the vehicle. At first Horn thought the passenger was lighting a cigarette. Then Horn determined the passenger was lighting a string of illegal fireworks. The passenger threw the fireworks outside the window and they made loud banging sounds when they hit the ground. The Tahoe made a left-hand turn onto eastbound Brookdale Drive, directly in front of Horn.

Officer Horn and fellow Officer Deliman ultimately effected a traffic stop of the Tahoe. The driver was one William Hicks and the passenger was appellant Lexibel Ewing. When Hicks gave his drivers license to Horn, the latter could smell the strong odor of marijuana coming from the interior of the Tahoe. Horn also saw a bag of illegal fireworks on the center console. Officer Deliman detained Hicks and Horn examined the interior of the vehicle finding bags of marijuana and crystal methamphetamine along with a scale. Officer Court, who was assisting Horn and Deliman, discovered suspected crystal methamphetamine on appellants person. Court said appellant acknowledged ownership of the narcotics and scale. Horn found additional baggies of drugs on Hickss person. Hicks said appellant had given him the drugs.

Case No. MF46331

At midnight on June 8, 2007, California Highway Patrol Officers Jeffrey Butticci and Jeremy Key were on patrol duty proceeding westbound on Highway 140 in the Merced area. They noticed a blue Jeep Cherokee make a right turn off the highway and onto Edwards Street. The Jeep made a wide turn onto the left hand side of Edwards Street and remained on the left side of the roadway for between 100 and 200 feet before turning right into an apartment complex.

The officers pulled in behind the Jeep Cherokee and saw appellant step out from the drivers side of the Jeep. Officer Key turned on his red light and spotlights. Appellant appeared to be startled by the officers. Officer Key, who was driving the CHP vehicle, stepped out and called to appellant. Appellant got close to his vehicle and Officer Butticci could not see his hands. However, Officer Key saw appellant place a hand in his pants pocket. The officers approached and appellant began to run in the opposite direct, first into a courtyard and then into a nearby apartment. Appellants female passenger remained inside the Jeep Cherokee.

Officer Key led the pursuit and Officer Butticci followed him. They yelled at appellant to stop and passed through the apartment, in which persons appeared to be sleeping. Key caught up to appellant at the rear door of the apartment. Key drew his firearm and appellant asked, What the hell are you gonna do with that? Key used the door to pin appellants body against the door jamb. Appellant nevertheless slipped free and ran away from the apartment. The officers followed appellant out of the apartment and saw appellant crouched down in the rear of a small yard. Key then ran over, jumped on appellant, and forced him face first against a fence. With Butticcis assistance, Key was able to force appellant to the ground.

The officers advised appellant to stop resisting and to roll over onto his stomach and place his hands behind his back. Appellant refused to comply and claimed his shoulder was dislocated. He called the officers white cracker motherfuckers and cowards. Officer Butticci employed a collapsible baton, known as an ASP, to strike appellant twice on the left leg. The officers were then able to place appellant in handcuffs.

While the officers cuffed appellant, the female passenger alighted from the Jeep, entered the backyard, and began screaming at the officers. The officers instructed her to go away but she continued to yell at them. Officer Butticci then placed her under arrest, led her back to the patrol car, and placed her in the rear seat. While Butticci and the female were at the patrol car, appellant told Officer Key, Thats why Gray got killed. Key interpreted the remark to refer to Officer Stephen Gray, who was shot by a Merced Gangster Crip gang member.

After appellant was subdued, Officer Key unsuccessfully attempted to get appellant on his feet. Key summoned Butticci and appellant asked for help in pulling up his pants, which had slipped down to his knees. Key pulled up the trousers and appellant spun around on his back and began flailing at Key with his legs. One kick made contact with Keys face, stunned him, and caused him to step back from appellant. Key was later examined at a hospital and suffered pain in the jaw area for three weeks after the incident. During the altercation, the officers observed items drop from appellants waist area. These included $259 in cash and a baggie containing about five grams of methamphetamine.

The officers escorted appellant to the patrol car and discovered the female passenger had escaped. They searched but were unable to locate her. Before placing the female passenger in the patrol car, Butticci checked under the removable rear seat for objects. He examined the area a second time before placing appellant in the rear seat area. Highway Patrol Officer Nathan Logan responded to the scene during the early morning hours of June 9, 2007. He administered first aid to Officer Key, searched the interior of the Jeep Cherokee, and found a bindle of marijuana and some pink pills in the cup holder of the center console. Logan believed the pills were the illegal drug ecstasy.

The officers transported appellant to the Merced Police Department, parked the patrol car in a secure area, and drove Key to the hospital for examination. When they arrived at the hospital, Butticci removed the rear seat of the patrol car and discovered a second bag of suspected methamphetamine. Officer Key testified the five grams of methamphetamine found in the backyard and the 15 grams located under the rear seat of the patrol car were, in his opinion, possessed for purpose of sale. He also concluded the five ecstasy pills could have been possessed for personal use but, in light of the other illicit substances, were also probably possessed for sale.

Jennifer Netherton testified she was a criminalist with the California Department of Justice Central Valley Crime Laboratory in Ripon. Netherton examined the confiscated substances and determined one of the plastic bags contained 3.97 grams of methamphetamine and the other contained 15.78 grams of methamphetamine. She testified the pink pills tested positive for methylenedioxymethamphetamine, also known as MDMA or ecstasy.

Merced Police officer Joseph Deliman testified as an expert on criminal street gangs. Deliman described the process of validating gang members, identified a number of active gangs in the Merced area, and discussed a 2004 incident in which Tahua Rivera, a member of the Merced Gangster Crips gang, shot and killed Merced Police Officer Stephen Gray. Deliman explained various aspects of the criminal street gang lifestyle, including tattoos, graffiti, dress, and gang membership requirements. He testified the commission of an assault upon a police officer is typically carried out by gang members to generate respect for the gang. In Delimans opinion, the main activities of the Merced Gangster Crips gang consisted of drug sales, robberies, assaults, and burglaries.

Deliman identified prior crimes committed by validated Crip gang members in the Merced area. Deliman testified one Jovanteae Turner had been convicted of selling cocaine base, one Douglas Turner had been convicted of auto theft, one Gerard Roberts had been convicted of assault likely to produce great bodily injury, Kiteran Lees was convicted of burglary and robbery with firearm enhancements, and Arthur Hudson was convicted of possession of a firearm by an ex-felon and carrying a concealed weapon. Deliman further testified that appellant had sustained a conviction for transportation of methamphetamine with a criminal street gang enhancement.

In Delimans opinion, appellant was an active member of the Crip gang. Deliman based this conclusion upon his investigations and upon admissions made by appellant to booking police officers. He noted that appellant bore tattoos on his arms. The tattoo on one arm read crip and the other bore the letters, TBG. In Delimans view, the acronym stood for True Blue Gangster, a subset of the Merced Gangster Crips. Deliman further concluded that appellant possessed the drugs and resisted arrest for the benefit of the criminal street gang. Despite these conclusions, Deliman conceded there was no record of appellant being in contact with other Crip gang members, having a gang moniker, wearing gang colors, or applying graffiti.

Defense

Appellant testified on his own behalf. He recalled being at the apartment complex at about midnight on June 9, 2007. He also remembered a car pulling up and a bright light shining in his face. However, he said he did not see any red lights. When appellant saw the bright light, he asked who it was and received no answer. He became afraid and ran to a place of safety. Appellant acknowledged running into an apartment and then out the back door. He also admitted getting caught in the exit doorway. Appellant said he freed himself and took off running before he saw an officer lunge for him. A second officer came through the back gate of the apartment and the two officers pinned him to the ground and dislocated his shoulder. Appellant claimed he was unable to put his hands behind his back because of the pain.

Appellant said he also felt pain in his leg and saw Officer Butticci striking him with a weapon. The weapon left a wound and six separate scars on his leg. Appellant said he told the officers his shoulder was dislocated but they continued to hit him. Appellants fiance ran up and yelled at the officers to stop hitting appellant. At that point, Officer Key told Officer Butticci to arrest appellants fiance.

Appellant admitted being angry at the officers because Officer Key had stuck his handgun in appellants face and the officers beat him even though he was not combative. He was also angry because they arrested his fiance even though she had done nothing. When appellant was alone with Officer Key, he called Key a coward and a dirty pig. Officer Key then pushed his knee down on appellants back and shoved a weapon in appellants face. Appellant called for help and someone came out of the apartment. That person retreated when Officer Key pointed his gun at him. At that point, appellant began kicking because he could not move and Officer Key was pushing on his back.

Officer Butticci helped appellant pull up his pants and the two officers escorted him to the patrol car. When they reached the patrol car, they found his fiance had disappeared. Appellant testified the drugs found in the backyard area of the apartment were not his and that other people had been hanging out in that area. Appellant said the two officers were upset that his fiance had fled and claimed they did not inspect the rear seat of the patrol vehicle before placing him there.

Appellant acknowledged he had tattoos on his arms. He said that tattoos were inscribed in 1995. Appellant explained he had friends who became part of an Asian gang, the True Blue Gangsters, in that year. The True Blue Gangsters had fallen apart sometime after 1995 and appellant said he had not been a gang member for more than five years. Appellant also claimed he never associated with Merced Gangster Crips members.

In 2007, appellant admitted a gang enhancement as part of a plea agreement. Appellant explained he did so to obtain release from custody without further jail or prison time. Appellant also admitted sustaining a felony assault conviction in 1999 and three juvenile adjudications in 1995, two for auto theft and one for possession of methamphetamine.

DISCUSSION

I.       DID THE TRIAL COURT ABUSE ITS DISCRETION BY ALLOWING

THE PROSECUTIONS GANG EXPERT WITNESS TO TESTIFY ABOUT APPELLANTS PRIOR FELONY DRUG CONVICTION?

Appellant contends the trial court abused its discretion under Evidence Code section 352 by allowing his prior arrest for transportation of methamphetamine to be admitted to establish a predicate offense for the gang-related special allegations.

During pretrial proceedings on October 16, 2007, the prosecutor explained her gang expert would offer evidence of appellants prior conviction as a predicate offense, to prove the substantive count of transportation of methamphetamine, and to establish the gang enhancements. During the course of the discussion, the prosecutor and defense counsel agreed to the giving of an on point limiting instruction in regards to gang expert testimony. During trial, defense counsel moved in limine to exclude the use of appellants prior to establish the element of membership in a criminal street gang. Defense counsel essentially stipulated the Merced Gangster Crips were a criminal street gang but did not concede his client was a member of such gang. The prosecutor noted her gang experts testimony was [e]xtremely probative on not only the underlying offense of [Health and Safety Code section] 11379, but also probative on the gang enhancement that goes to the knowledge element of the 11379. The court noted the prosecution expert would undoubtedly rely on the prior conviction and further noted that the court intended to give a limiting instruction to the jury. The court denied the defense motion in limine subject to further consideration and research of the matter.

At the end of the proceedings on Friday, October 19, 2007, defense counsel objected to Officer Key being asked about appellants prior conviction. Counsel based his objection on Evidence Code section 352 and noted the prosecutor wants to ask Officer Key, as the expert on possession with the intent to sell, about the effect of my clients prior conviction for [Health and Safety Code section] 11379. The court noted the prosecution had two expert witnesses, a gang expert thats going to be put on the stand and then Officer Key has been qualified as an expert on drugs. The court took the matter under submission and noted it would rule on Monday, October 22.

The following Monday, the prosecutor indicated she would not be immediately recalling Officer Key to testify about appellants prior and its possible impact on his opinion. Rather, she said, Id prefer to put the predicate in the proper order in the manner in which the Court has approved that it come in [i.e., via the expert witness on gang testimony]. Defense counsel acknowledged the gang expert would be discussing appellants prior pursuant to an earlier ruling of the court and that defense counsel had already objected to such ruling.

The court went on to question whether a drug expert could appropriately use appellants prior in formulating an opinion. The court also observed that its question entailed issues under Evidence Code section 352. Defense counsel maintained the probative value of the evidence was low and the potential prejudice was extremely high. The prosecutor argued the probative value was significant if it did affect the drug experts opinion. The court ruled the evidence of the prior would be admitted for the limited purpose of the gang expert with a limiting instruction. The court further indicated it was disinclined to allow the evidence unless the door is opened, and the door would be opened if the defendant takes the stand.

Officer Deliman, the prosecution gang expert, testified that appellant was a member of the Merced Gangster Crips. Deliman based his opinion on his investigation in this case, on prior investigations, and on appellants association with other known gang members. Deliman also noted that appellant admitted to being a Crip gang member during the booking process at Merced County Jail. Deliman said he further based his opinions on the Crip and TBG (meaning True Blue Gangster) tattoos on appellants arms. Deliman said his opinion was also based upon appellants prior sales of narcotics and cited a 2006 incident in which appellant was a passenger in a motor vehicle and had a quantity of methamphetamine in his possession.

On appeal, the appellant acknowledges the jury acquitted him of the gang charge and each one of the gang enhancements. Nevertheless, he maintains the gang evidence substantially permeated the proceedings in regard to the underlying charged crime, had little evidentiary impact (in view of the not guilty pleas and not true findings), but reasonably evoked an emotional bias, unduly prejudicing him.

Evidence Code section 352 states:

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.

Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) A trial courts exercise of [this] discretion will not be disturbed except on a showing [that] the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

In that same vein, Evidence Code section 353 states:

A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless:

(a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and

(b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.

[A] miscarriage of justice should be declared only when the court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached absent the error. (People v. Rains (1999) 75 Cal.App.4th 1165, 1170.)

Under California law, evidence the defendant has committed crimes other than those for which he is on trial is inadmissible to prove bad character, predisposition to criminality, or the defendants conduct on a specific occasion. [Citation.] However, Evidence Code section 1101, subdivision (b), permits evidence of a defendants past criminal acts when [those acts are] relevant to prove a material fact at issue, such as identity, motive, or knowledge. [Citations.] In prosecutions for drug offenses, evidence of prior drug use and prior drug convictions is generally admissible under Evidence Code section 1101, subdivision (b) to establish that the drugs were possessed for sale rather than personal for use. Such evidence is also admissible to prove knowledge of the narcotic nature of the drugs. (People v. Williams (2009) 170 Cal.App.4th 587, 607.)

In view of the principles set forth in Williams, the trial courts ruling did not constitute an abuse of discretion under Evidence Code section 352 because evidence of appellants prior felony conviction was properly admissible under Evidence Code section 1101, subdivision (b). Appellants claim of prejudicial error must be rejected.

II.    WAS DEFENSE COUNSEL INEFFECTIVE BY FAILING TO

CHALLENGE THE GANG EXPERTS USE OF THE PRIOR

CONVICTION AS A BASIS FOR HIS OPINION?

Appellant contends his trial counsel was ineffective because he failed to interpose an Evidence Code section 352 objection to the prosecution gang experts use of appellants prior conviction as the basis for his opinion.

As noted above, the trial court permitted the prosecution gang expert to cite appellants prior conviction for a similar offense as a predicate offense and as a basis for his opinion that appellant was a member of a gang. Appellant submits his counsel should have invoked Evidence Code section 352 to preclude the expert from relying on the prior conviction.

The [d]efendant has the burden of proving ineffective assistance of trial counsel. [Citation.] To prevail on a claim of ineffective assistance of trial counsel, a defendant must establish not only deficient performance, [which is performance] below an objective standard of reasonableness, but also prejudice. [Citation.] A court must indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance. [Citation.] Tactical errors are generally not deemed reversible; counsels decisionmaking [is] evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, [appellate courts] will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. [Citation.] [P]rejudice must be affirmatively proved; the record must [affirmatively] demonstrate a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. [Citation.] (People v. Maury, (2003) 30 Cal.4th 342, 389.) Attorneys are not expected to engage in tactics or to file motions which are futile. (Id. at p. 390; also see People v. Mendoza (2000) 24 Cal.4th 130, 166.)

To establish ineffective assistance of counsel, defendant must show that counsels performance fell below an objective standard of reasonableness, and that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694; see also People v. Hester (2000) 22 Cal.4th 290, 296.) Courts have held it is not necessary to determine whether counsels challenged action was professionally unreasonable in every case, however. If the reviewing court can resolve the ineffective-assistance claim by first deciding whether there is a reasonable probability that the outcome would have been different absent counsels challenged actions or omissions it may do so. (Strickland v. Washington, supra, at p. 697.)

Appellant submits:

While the court had found the evidence admissible, it had never examined the issue in the context of Evidence Code section 352. Had defense counsel asked the court to exclude or limit the use of the prior conviction, it is reasonable to conclude that the evidence would have at least been rendered less prejudicial by sanitizing the nature of the prior. In that context, counsels omissions must be considered constitutionally deficient performance.

In prosecutions for drug offenses, evidence of prior drug use and prior drug convictions is generally admissible under Evidence Code section 1101, subdivision (b) to establish that the drugs were possessed for sale rather than for personal use and to prove knowledge of the narcotic nature of the drugs. Moreover, prior convictions for felonies entailing moral turpitude are properly admissible for impeachment purposes, subject to the discretion of the trial court. (People v. Williams (2009) 170 Cal.App.4th 587, 607-608.) The offense of transporting narcotics is considered a crime of moral turpitude. (People v. Navarez (1985) 169 Cal.App.3d 936, 949.)

Here, appellants prior conviction was properly admissible to show knowledge as well as for impeachment purposes. Attorneys are not expected to engage in tactics or to file motions which are futile. (People v. Maury, supra, 30 Cal.4th at p. 389.) Appellants contention must be rejected.

III. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY OMITTING THE ELEMENT OF INJURY FROM CALCRIM NO. 945 (SIMPLE BATTERY AGAINST A PEACE OFFICER)?

Appellant contends the trial court committed reversible error by giving an amended version of Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 945 (simple battery against peace officer) that omitted the element of injury.

Count 5 of the information alleges:

On or about June 9, 2007, Defendant(s) Lexibel Ewing did commit a felony, namely, a violation of section 243(c)(2) of the California Penal Code, battery on a police officer engaged in the performance of his/her duties as a police officer when the police officer was in uniform, in that said defendant did willfully and unlawfully use force and violence on Officer Key when said officer was in uniform and in the performance of his/her duties.

Section 243, subdivision (c), states in pertinent part:

(1) When a battery is committed against [specified non-peace officers and employees] ... and an injury is inflicted on that victim, the battery is punishable by a fine of not more than two thousand dollars ($2,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, or by imprisonment in the state prison for 16 months, or two or three years.

(2) When the battery specified in paragraph (1) is committed against a peace officer engaged in the performance of his or her duties, whether on or off duty ... and the person committing the offense knows or reasonably should know that the victim is a peace officer engaged in the performance of his or her duties, the battery is punishable by a fine of not more than ten thousand dollars ($10,000), or by imprisonment in a county jail not exceeding one year or in the state prison for 16 months, or two or three years, or by both that fine and imprisonment.

The court instructed the jury in amended CALCRIM No. 945 as follows:

The defendant is charged in Count 5 with battery against a peace officer as a felony. To prove that the defendant is guilty of this crime, the People must prove that:

One, Jeremy Key was a peace officer performing the duties of a patrol officer;

Two, the defendant willfully touched Jeremy Key in a harmful or offensive manner;

And, three, when the defendant acted, he knew or reasonably should have known that Jeremy Key was a peace officer who was performing his duties.

Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else or gain any advantage.

The slightest touching can be enough to commit a battery if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.

A person who is employed as a police officer by the California Highway Patrol is a peace officer.

The duties of a patrol officer include, primarily, enforcing the Vehicle Code anywhere in the state of California.

Appellant notes the trial court amended the pattern instruction by adding the phrase battery against a peace officer as a felony in the first paragraph but then erred by failing to instruct on injury as an element of the offense charged under section 243, subdivision (c)(2). In sum, appellant contends the jury made no determination on whether the battery resulted in an injury to Officer Key, the court gave them no instruction on that element, and the prosecutor never mentioned injury as an element that needed to be proven.

Respondent concedes the omission of the injury element from CALCRIM No. 945 constituted error but suggests the error was harmless since Officer Key testified he felt a sharp pain at the back of his jaw, sought medical treatment at a hospital, and felt the pain for about three weeks. In view of this evidence, respondent submits the jury would have returned the same verdict of felony battery against a peace officer had the proper instruction been given. Misdescription [or omission] of an element of a charged offense is subject to harmless error analysis and does not require reversal if the misdescription was harmless beyond a reasonable doubt, i.e., that the error complained of did not contribute to the verdict obtained. [Citations.] (People v. Hagen (1998) 19 Cal.4th 652, 670-671; People v. Flood (1998) 18 Cal.4th 470, 504-506.)

In the instant case, Officer Key testified about the injury to his jaw, the pain that emanated from that injury, and the medical treatment he obtained for the injury at the hospital. Appellant has not cited and we have been unable to find any portion of the record in which he challenged this evidence of injury requiring professional medical treatment. Under the circumstances, the instructional error concerned an uncontested element of section 243, subdivision (c)(2), was established by undisputed testimony of the victim, and is harmless beyond a reasonable doubt.

IV.  DID THE TRIAL COURT ERRONEOUSLY FAIL TO STAY IMPOSITION OF SENTENCE ON THE COUNT CHARGING FELONY RESISTANCE OF A POLICE OFFICER BY USE OF FORCE OR VIOLENCE?

Appellant contends the trial court violated section 654 by imposing a concurrent term on count 6. Appellant contends his spinning around and kicking Officer Key was the basis for counts 5 and 6 and his single objective was to get the officer off his back after being beaten. Appellant submits the sentencing triads for count 5 ( 243, subd, (c)(2)) and count 6 ( 69) are identical and the trial court should strike the concurrent term on count 6 since it was the trial courts intention to impose additional punishment for the battery on Officer Key.

Count 5 of the information charged appellant with battery on a police officer engaged in the performance of his/her duties as a police officer when the police officer was in uniform, in that said defendant did willfully and unlawfully use force and violence on Officer Key when said officer was in uniform and in the performance of his/her duties. Count 6 of the information charged appellant with resisting executive officer, in that said defendant(s) did willfully and unlawfully attempt by means of threats or violence to deter and prevent Officer Key, who was then and there an executive officer, from performing a duty imposed upon such officer by law, and did knowingly resist by the use of force and violence said executive officer in the performance of his duty.

At the February 1, 2008 sentencing hearing, the court stated in relevant part:

Then on Count 5, Penal Code section -- or, excuse me, Count 5, one-third the middle term of eight months. Enhancement 1 to Count 5 doubles Count 54, so thats 16 months on Count 5. That will run consecutive to the base term of Count 1.

And, then, on Count 6, midterm of two years. Enhancement 1 doubles Count 6; however, Count 6 and Enhancement 1 to Count 6 shall run concurrent to Count 1, 3, 4, and 5.

Section 654 states:

An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions but in no case can it be punished under more than one; an acquittal or conviction and sentence under one bars a prosecution for the same act or omission under any other.

Section 654 prohibits the imposition of punishment for more than one violation arising out of an act or omission which is made punishable in different ways by different statutory provisions. This proscription applies not only where there is but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citations.] The purpose of the protection against multiple punishment is to insure the defendants punishment will be commensurate with his [or her] criminal liability. (People v. Masters (1987) 195 Cal.App.3d 1124, 1127-1128.)

The divisibility of a course of conduct depends upon the intent and objective of the actor. If all of the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one. The initial inquiry in any section 654 application is to ascertain the defendants objective and intent. For example, the defendant may have entertained multiple criminal objectives which were independent of and not merely incidental to one another. In that case, he or she may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. Whether the defendant maintained multiple criminal objectives is determined from all of the circumstances and is primarily a question of fact for the trial court. The trial courts finding will be upheld on appeal is there is any substantial evidence to support it. However, when there is no dispute as to the facts, the applicability of section 654 is a question of law. (People v. Stringham (1988) 206 Cal.App.3d 184, 202.)

Although the Supreme Court has questioned the direction multiple-punishment analysis has taken in California since 1960, the court continues to find multiple punishment appropriate in cases involving consecutive, and therefore separate, intents and cases involving different, yet simultaneous, intents. (People v. Latimer (1993) 5 Cal.4th 1203, 1204, 1216.) The principal inquiry in each case is whether the defendants criminal intent and objective were single or multiple. Each case must be determined on its own facts. [Citations.] The question whether the defendant entertained multiple criminal objectives is one of fact for the trial court. The trial courts findings on this question will be upheld on appeal if there is any substantial evidence to support them. (People v. Liu (1996) 46 Cal.App.4th 1119, 1135-1136; People v. Akins (1997) 56 Cal.App.4th 331, 338-339.)

Respondent contends the evidence supports an implicit finding of two separate objectives in the instant case, i.e., resisting arrest and battery. Appellant contends he had a single objective when he spun around and kicked out at the officer--to get the officer off his back after being beaten. In People v. Martin (2005) 133 Cal.App.4th 776, 781, defendant was convicted of spousal battery, resisting arrest, and battery on a peace officer. The trial court sentenced him to three concurrent 25-years-to-life terms under the three strikes law. Defendant successfully argued that the battery and resisting charges were incident to his sole objective to escape and that section 654 precluded him from being punished for both. Division Two of the Second Appellate District observed:

We agree with appellant that his sole objective in both resisting arrest and committing battery on a police officer was to free himself. The battery upon the officer does not appear to have been intentional, but merely the result of appellants physical gyrations aimed at freeing himself. The two offenses occurred, if not concurrently, in close temporal proximity, which although not determinative on the question of whether there was a single objective, is a relevant consideration. [Citation.] Hence, we conclude that section 654 applies to stay execution of sentence of either resisting arrest or battery on a peace officer, unless the multiple-victim exception is applicable.^[2] (People v. Martin, supra, 133 Cal.App.4th at p. 781.)

The instant case presents a parallel situation, with appellant engaging in physical gyrations to avoid subjugation at the hands of law enforcement officers and kicking Officer Key in the face in the process. Under these facts and circumstances, section 654 applies to stay execution of sentence of either the resisting arrest count or the battery upon a peace officer count and the matter is remanded to the superior court with instructions to conduct further proceedings consistent with these views.

DISPOSITION

The judgment is affirmed. The matter is remanded to the superior court and instructed to stay execution of sentence on either the resisting arrest count or the battery upon a peace officer count, to amend the abstract of judgment accordingly, and to send certified copies of the amended abstract to all appropriate parties and entities.

_____________________

HILL, J.

WE CONCUR:

_____________________

VARTABEDIAN, Acting P.J.

_____________________

KANE, J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Respondent essentially concedes the multiple-victim exception is inapplicable here, noting counts 5 and 6 of the information identified Officer Key as the sole victim.