P. v. White
Filed 7/25/13 P. v. White 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
(San
Joaquin)
THE PEOPLE,
Plaintiff and Respondent,
v.
WILLIAM WHITE,
Defendant and Appellant.
C069675
(Super. Ct. No.
SF113757A)
A
jury found defendant William White guilty of
his wife Willie Ruth Dean with a deadly weapon, to
wit an extension cord, on December 19, 2009 ( ADDIN BA xc <@ost> xl 9 s
HTOOEH000037 xpl 1 l "Pen. Code" Pen. Code,
BA xc <@osdv> xl 19 s HTOOEH000039 l "§ 245, subd. (a)(1)" § 245, subd.
(a)(1); count 1); making criminal threats
on December 19, 2009 (
ADDIN BA xc <@osdv> xl 5 s HTOOEH000040 xpl 1 l "§ 422" § 422;
count 2); attempting to murder Dean on January 3, 2010 ( ADDIN BA xc <@osdv> xl 22 s
HTOOEH000041 xpl 1 l "§§ 187, subd. (a), 664"
§§ 187, subd.
(a), 664; count 3); inflicting corporal injury on Dean on January
3, 2010 ( ADDIN BA xc <@osdv> xl 18 s
HTOOEH000042 xpl 1 l "§ 273.5, subd. (a)"
§ 273.5, subd.
(a); count 4); and contempt of court ( ADDIN BA xc <@osdv> xl 5 s
HTOOEH000043 xpl 1 l "§ 166" § 166, subd.
(c)(1); count 6). The jury found
defendant not guilty of second degree robbery
(
ADDIN BA xc <@osdv> xl 5 s HTOOEH000044 xpl 1 l "§ 211" § 211; count 5)
but guilty of the lesser included offense of petty theft ( ADDIN BA xc <@osdv> xl 5 s
HTOOEH000045 xpl 1 l "§ 484" § 484) on January
3, 2010. The jury also found true allegations
defendant personally inflicted great bodily injury under circumstances
involving domestic violence in the commission of counts 3 and 4 ( ADDIN BA xc <@osdv> xl 20 s
HTOOEH000046 xpl 1 l "§ 12022.7, subd. (e)"
§ 12022.7, subd.
(e)), personally used a deadly weapon in the commission of counts 2, 3, and
4 (
ADDIN BA xc <@osdv> xl 21 s HTOOEH000047 xpl 1 l "§ 12022, subd. (b)(1)" § 12022, subd.
(b)(1)), and acted with deliberation and premeditation in the commission of
count 3. In a bifurcated proceeding, the
trial court found true allegations defendant had four prior serious felony
convictions (
ADDIN BA xc <@osdv> xl 37 s HTOOEH000048 xpl 1 l "§§ 667, subd. (d), 1170.12, subd. (b)" §§ 667, subd.
(d), 1170.12, subd. (b)) and served two prior prison terms ( ADDIN BA xc <@osdv> xl 18 s
HTOOEH000049 xpl 1 l "§ 667.5, subd. (a)"
§ 667.5, subd.
(a)).
Sentenced to 61 years to life in
state prison, defendant appeals.
contends the trial court erred in (1) failing to instruct the jury
sponte on attempted voluntary manslaughter as a
lesser included offense of attempted murder, and (2) admitting evidence of a
prior act of domestic violence. He also asserts his trial counsel was
ineffective in failing to move to suppress certain evidence. Finding no error on the part of the trial
court or defendant’s trial counsel, we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A.
Defendant and Dean had a short term
relationship in the mid-1970’s that produced a son, Chris. Dean later had another son, Adrian. Defendant and Dean kept in touch “[o]ff and
on over the years†and married in 2007.
On December 19, 2009, defendant and Dean were living at 5288 Barbados Circle in Stockton.
When Dean returned home from work that evening, defendant was there but
his truck was not. Defendant told Dean
the truck had gotten a flat tire. After
dinner, Dean prepared to take defendant to get his truck. When defendant told Dean that she would “need
to pay to get the truck,†Dean told him that she did not have money to pay to
get the truck and returned home. Later
that evening, as Dean was watching television, defendant walked over to their
Christmas tree, picked up an extension cord, and said, “I got to do what I got
to do.†He then walked toward Dean with
the cord stretched tightly between both of his hands. Fearing defendant was going to strangle her,
Dean began screaming for help. A
struggle ensued. Dean eventually ran
outside and used a neighbor’s cell phone to call police. During the struggle, Dean ended up with the
extension cord and dropped it on the lawn when she got outside. Meanwhile, defendant took Dean’s keys and
drove away in the Mercury Sable Dean used as her personal vehicle. The Mercury was purchased after defendant and
Dean were married in 2007. Dean told the
police officer who responded to her call that defendant had stolen her car. The police officer discussed obtaining an
emergency protective order with Dean, and Dean indicated she wanted one. The officer was unable to locate an extension
cord at the scene. Later that evening,
Dean had a friend change the locks on her security door to keep defendant out.
Between December 19 and 25, 2009,
defendant, who was living in a homeless shelter, telephoned Dean at least five
times wanting to return home. She
declined, telling him that she could not trust someone who tried to kill her
and that she was divorcing him.
Between December 19, 2009, and January 3, 2010, defendant came by Dean’s home three or
four times. The first time was sometime
prior to December 26, 2009, and Dean’s son Adrian served him with the
emergency protective order.
About a week after the incident,
Dean boxed up all of defendant’s personal items and placed them outside.
On December 29, 2009, Dean filed for divorce, and her son Adrian
served defendant with the papers.
Sometime prior to January
3, 2010, the
Mercury Sable was returned to Dean’s driveway.
She assumed defendant left it there because that is what she had asked
him to do. She notified the police the
car had been returned.
On January 2, 2010, defendant telephoned Dean and asked her to
take him to church with her the following day.
She said, “No,†and they exchanged words.
The next morning, Sunday,
January 3, 2010,
Dean prepared to go to church. As she
walked out the door, she was carrying her bible bag and purse. As she was about to turn away from the door,
she “felt blows†on the top and back of her head. She looked and saw that it was defendant who
was hitting her. The two scuffled and
eventually ended up on the lawn in front of Dean’s and her next door neighbor’s
home. Dean sustained additional blows to
her face, head, right eye, arms, legs, and chest. She had no idea what defendant was using to
strike her; however, it did not feel like a punch, it felt like she was being
hit with an object. She attempted to
shield herself with her hands and arms.
While she was lying on the grass, defendant took her purse and car keys
and drove off in the Mercury.
Dean ended up across the street but
had no idea how she got there. A
neighbor heard dogs barking, looked outside, and saw Dean lying on the
sidewalk. Dean had been beaten. She was covered in blood and told her
neighbor defendant had hit her with something as she was coming out of her
house on her way to church.
Stockton Police Officer Scott Fogg
responded to a report of “a person beat.â€
When he arrived, Dean was lying on the sidewalk in front of 5291 Barbados Circle. She
was not in good condition. Blood was
coming from a wound to the back of her head, her arms were “swollen and
deformed,†and she was bleeding profusely from a cut below her right eye, which
was swollen shut. Dean told Fogg who had
hurt her, and Fogg “radioed to all the cars, hey, this is our suspect.†He provided a description of defendant and
information regarding the Mercury, including the license plate number. He also advised the other officers that
defendant likes to hang out at Mariani’s Liquors.
Stockton Police Officers Greg
Olmstead and Neto Urias responded to Fogg’s call and arrived at Mariani’s at
the same time. Defendant was standing
next to the Mercury in the parking lot.
Olmstead drew his gun and ordered defendant to his knees, and defendant
complied. Defendant identified himself
and was taken into custody. He had blood
on his hands and clothing and did not appear to be injured. Stockton Police Officer John Hernandez also
responded to Fogg’s call and arrived as defendant was being taken into custody.
After defendant was taken into
custody, Officer Olmstead returned to the Mercury and saw what appeared to be
blood on the exterior of the driver’s side of the car. Officers Olmstead and Hernandez searched the
passenger compartment of the Mercury.
Olmstead searched the driver’s side and saw what appeared to be blood on
the interior of the door, the steering wheel, and the center console. Hernandez searched the passenger side and did
not find anything of interest.
Thereafter, Hernandez searched the trunk where he found a small, wooden
bat that appeared to have blood on it and Dean’s purse. At the time he searched the Mercury,
including the trunk, Hernandez knew there had been an assault and that
defendant may have been involved.
In June 2007, Dean’s brother was
living with Dean and defendant. Dean’s
brother and defendant got into a fight, Dean got involved, and defendant
“scraped†her on the arm with a knife.
Dean does not know whether defendant intended to hurt her. The police were called, but Dean did not want
to press charges because she believed the fight was between defendant and her
brother. As a result of the injury to
her arm, Dean has “tingling and numbness and nerve damage and muscle damage†to
three fingers on her right hand.
B.
Defendant testified on his behalf at
trial. On the evening of December
19, 2009, he was
illegally dumping some building materials in an area off of Highway 99 and
observed Dean’s Mercury and a male friend’s truck parked up the street. Dean and her friend left in their respective
vehicles after observing defendant. When
defendant went to leave, he discovered his truck had a flat tire. A man at a nearby Home Depot drove him home.
Dean returned home later that
evening and asked defendant where his truck was located. Defendant responded that Dean knew where the
truck was because she had seen defendant earlier that evening. Defendant dropped the topic when Dean began
waving around a kitchen knife she was using to cut lettuce. After dinner, they left to get defendant’s
truck but never made it past the driveway.
When defendant informed Dean he needed money to have the tire repaired,
she said she was not going to give him anything and went back inside.
Later that night, Dean asked
defendant if he planned to finish decorating their Christmas tree, and
defendant responded, “I guess I got to do what I got to do.†As defendant got to work on the tree, Dean
came at him with a kitchen knife.
Defendant grabbed an extension cord to protect himself. He wrapped the cord around Dean’s hands and
pushed her. They both fell over, and
defendant’s wrist was cut in the process.
Dean got up and ran out the door.
Defendant did not call the police because he did not want Dean to lose
her nursing license. He wanted to let
things cool down, so he left in the Mercury.
He denied taking any money from Dean’s purse, explaining that he had $40
in his pocket that day.
called him later that night, and he told her he would bring the car back as
soon as he got his truck fixed. He
returned the car two or three days later.
Between December 19, 2009, and January 3, 2010, Dean called defendant nearly every
day. She invited defendant over three or
four separate times, but defendant told her he “want[ed] to get away, get back
to me fish.â€
Dean called defendant on January
2, 2010, to remind
him that January 3d is their son’s birthday.
She also told him that if he got to her home in time, she might let him
go with her to church the next day.
The following day, January
3, 2010, defendant
arrived at Dean’s home at 8:00 a.m. and waited outside. When he heard Dean inside the garage, he
knocked on the garage door and told her he was outside. She said, “Okay.†Dean came outside a few minutes later, placed
her purse and another bag in the trunk of the Mercury, and moved the car from
the driveway to the street. As Dean
walked back to the house, she handed defendant her phone so that he could call
his son. Defendant attempted to hand
Dean some divorce papers, but she refused to take them.
When Dean came back outside, she had
a coat draped over her left arm, and defendant noticed that her demeanor had
changed. She had the “[s]ame old crazy
look†on her face that she had on December 19, 2009, when she came at him with the knife. As Dean came toward him, she dropped her
coat, and revealed she was carrying a knife with a four- to five-inch
blade. Defendant told her to put the
knife down, and Dean said, “No. You
trying to take everything from me. I’m
not going to let you take nothing from me.â€
When Dean continued toward defendant, he picked up a little twig and
began hitting Dean on the hand so that she would drop the knife. Dean took off “running across the way.†Defendant picked up Dean’s keys, which she
had dropped, got into the Mercury, and attempted to look for her. As he was driving down the street, Dean ran
in front of the car and defendant accidently ran her over. Dean was pinned underneath the car, and there
was “a lot of blood coming out from under there.†Defendant got the jack out of the trunk,
jacked up the car, pulled Dean out, placed her on the sidewalk, rang a
neighbor’s doorbell, drove to the end of the street, and waited a few minutes
until he saw someone come out and check on Dean. Then he drove away.
According to defendant, the incident
in 2007 was between him and Dean’s brother.
Dean was “not included.†On
cross-examination, he acknowledged he was convicted of battery on a spouse, assault
with a deadly weapon (a knife), and brandishing a knife as a result of the 2007
incident. He also admitted prior
convictions for aggravated robbery, bank robbery, possession of a firearm,
voluntary manslaughter, and assault with intent to commit robbery by use of a
deadly weapon.
C.
Following his arrest, defendant was
interviewed by a police detective.
Defendant told the detective he called Dean nearly every day between
December 19, 2009, and January 3, 2010.
He was upset about having to live at a shelter. He also was upset Dean had filed for divorce,
explaining that she had promised his mother she would take care of him for the
rest of his life. Defendant spoke to
Dean on January 2, 2010, and told her he would be serving her with divorce
papers. The next morning, he took a bus
from the homeless shelter to Dean’s house and waited outside. When Dean emerged from the house, defendant
attempted to serve her with the divorce papers.
Dean cursed at him and went back inside.
When she reemerged a few minutes later, she continued cursing at him,
and he felt like he was under attack. He
thought Dean had a knife. He “lost it,â€
“blacked out,†and did not remember what exactly happened. “[H]e was so frustrated about his living
situation and the way that he felt he was being treated by Ms. Dean’s son that
he couldn’t take it anymore, and that this anger had built up inside him so
much that he knew that he hurt Ms. Dean very severely and that he was really
sorry, but he couldn’t help it.†He
found a stick on the lawn that he used to hit her. After striking her with the stick, he took
her car keys and purse and left in the Mercury.
When the detective told him no knife was found at the scene, defendant
said he must have seen something that resembled a knife, such as Dean’s keys. He denied striking Dean with a baseball bat
or knowing anything about the bat found in the trunk of Dean’s car. He did not say anything about accidentally
striking Dean with the car. He
repeatedly said he was sorry and offered to and did write Dean an apology
letter.
Officer Fogg “walked the sceneâ€
within minutes of arriving at Barbados Circle on January 3, 2010, including the
grass area in front of Dean’s and Dean’s next door neighbors’ homes, and did
not locate a knife. He did observe a
large amount of blood in the grass in front of Dean’s next door neighbor’s
home. There were also blood drops from
the sidewalk in front of Dean’s next door neighbor’s home “all the way over to
where [Fogg] located Ms. Dean in the driveway/sidewalk area of 5291†Barbados
Circle. Fogg did not see a large amount
of blood in the street. Nor did he
observe any drag marks, just drops of blood.
I
The Trial
Court Did Not Err in Failing to Instruct the Jury Sua Sponte on Attempted
Voluntary Manslaughter as a Lesser Included Offence of Attempted Murder
Defendant contends his conviction
for attempted murder (count 3) must be reversed because the trial court failed
to instruct the jury sua sponte on the lesser included offense of attempted
manslaughter.
More particularly, he asserts “[t]here was substantial evidence of
provocation during the period from December 19, 2009 to January 3, 2010, that
spilled over into a violent, uncontrollable attack, requiring sua sponte jury
instructions on the lesser-included offense of attempted voluntary
manslaughter.†We disagree.
“ ‘ “The trial court is
obligated to instruct the jury on all general principles of law relevant to the
issues raised by the evidence, whether or not the defendant makes a formal
request.†’ [Citation.] ‘Conversely, even on request, the court “has
no duty to instruct on any lesser offense unless there is substantial evidence
to support such instruction.†’
[Citation.] This substantial
evidence requirement is not satisfied by ‘ “any evidence . . . no matter
how weak,†’ but rather by evidence from which a jury composed of
reasonable persons could conclude ‘that the lesser offense, but not the
greater, was committed.’ [Citation.] ‘On appeal, we review independently the
question whether the trial court failed to instruct on a lesser included
offense.’ †( ADDIN BA xc <@cs> xl 46 s
HTOOEH000001 xhfl Rep xpl 1 l "
Cal.4th 680, 704-705" People
v. Avila (2009) 46 Cal.4th 680, 704-705, italics omitted.)
Attempted voluntary manslaughter is
a lesser included offense of attempted murder.
(
ADDIN BA xc <@cs> xl 51 s HTOOEH000002 xhfl Rep xpl 1 l "People v. Gutierrez (2003)
state of mind constituting either express or implied malice. A person who kills without malice does not
commit murder. Heat of passion is a
mental state that precludes the formation of malice and reduces an unlawful
killing from murder to manslaughter. Heat
of passion arises if, ‘ “at the time of the killing, the reason of the
accused was obscured or disturbed by passion to such an extent as would cause
the ordinarily reasonable person of average disposition to act rashly and
without deliberation and reflection, and from such passion rather than from
judgment.†’ ( ADDIN BA xc <@cs> xl 43 s
HTOOEH000003 xhfl Rep xpl 1 l "People v. Barton (1995)
12 Cal.4th 186, 201.) Heat of
passion, then, is a state of mind caused by legally sufficient provocation that
causes a person to act, not out of rational thought but out of unconsidered
reaction to the provocation. While some
measure of thought is required to form either an intent to kill or a conscious
disregard for human life, a person who acts without reflection in response to
adequate provocation does not act with malice.â€
(
ADDIN BA xc <@ocsn> xl 17 s HTOOEH000051 xpl 1 l "People v. Beltran"
People v. Beltran (2013)
56 Cal.4th 935, 942, fn. omitted ADDIN BA xc <@oppt> xl 28 s
HTOOEH000052 xpl 1 l "2013 Cal.LEXIS 4696 at *9-10"
(
render an ordinary person of average disposition ‘liable to act rashly or
without due deliberation and reflection, and from this passion rather than from
judgment.’ †( ADDIN BA xc <@$id> xl 13 s ID
xhfl Rep xpl 1 Id.
at p. 957, quoting ADDIN
BA xc <@cs> xl 38 s HTOOEH000004 xhfl Rep xqt xpl 1 l "People v. Logan (1917)
Here, defendant points to the
following as substantial evidence of provocation. Following the December 19, 2009, incident,
Dean changed the locks on her security door, placed defendant’s belongings
outside, and filed for divorce. She also
told police defendant had stolen the Mercury even though she knew the car was
community property and her report could cause defendant to return to prison
after having spent most of the past 20 years there. Finally, on the morning in question, January
3, 2010, Dean refused to allow defendant to accompany her to church or to
accept divorce papers he attempted to serve on her. None of these events is sufficient to “render
an ordinary person of average disposition ‘liable to act rashly or without due
deliberation and reflection, and from this passion rather than from
judgment.’ †( ADDIN BA xc <@nper> xl 17 s
HTOOEH000053 xpl 1 l "
BA xc <@$cs> xl 34 s HTOOEH000004 xhfl Rep xqt xpl 1 People v. Logan, supra, 175 Cal. at p. 49; see also ADDIN
BA xc <@cs> xl 53 s HTOOEH000005 xhfl Rep xpl 1 l "People v. Lujan (2001)
provocation shown where wife separated from defendant, filed for divorce, and
enlisted law enforcement assistance in stopping defendant from stalking and
harassing her].)
The cases relied on by defendant are
readily distinguishable. In ADDIN
BA xc <@cs> xl 45 s HTOOEH000006 xhfl Rep l "People v. Berry (1976)
defendant’s wife, had engaged in a two-week pattern of sexually arousing the
defendant and taunting him into jealous rages over her love for another
man. Our Supreme Court found that under
those circumstances the trial court erred in refusing to instruct on voluntary
manslaughter based on sudden quarrel or heat of passion. ( ADDIN BA xc <@$id> xl 13 s ID
xhfl Rep xpl 1 Id. at
p. 518.) In contrast, here, the evidence
indicated Dean sought to break off her relationship with defendant following a
physical altercation two weeks earlier.
To that end, she changed the locks on her home, served him with divorce
papers and an emergency protective order, and rebuffed his request to accompany
her to church. While she had reported
defendant stole the Mercury, defendant had since returned the car, and there is
no indication defendant would suffer any adverse consequences as a result of
Dean’s report. Dean’s actions are
nothing like those of the defendant’s wife in ADDIN
BA xc <@$cs> xl 5 s HTOOEH000006 Berry.
Defendant also cites ADDIN
BA xc <@cs> xl 39 s HTOOEH000007 xhfl Rep l "People v. Borchers (1958)
contention that heat of passion may be provoked over an extended period of
time. ADDIN
BA xc <@$cs> xl 8 s HTOOEH000007 Borchers
is factually distinguishable because the series of events that prompted the
defendant to kill in that case included, “[the victim’s] admitted infidelity,
her statements that she wished she were dead, her attempt to jump from the car
. . . her repeated urging that defendant shoot her, [her son], and himself on
the night of the incident, and her taunt, ‘are you chicken.’ †( ADDIN BA xc <@$id> xl 17 s ID
xhfl Rep xpl 1 Id.
at p. 328-329.) This case presents no
similarly egregious provocations, either as extended build-up to the January 3,
2010, assault or as the immediate impetus for it.
In sum, Dean did nothing to provoke
defendant so as to permit heat of passion instructions to be given. No reasonable jury could find otherwise. Accordingly,
the trial court did not err in failing to instruct the jury on attempted
voluntary manslaughter.
II
Defendant’s
Trial Counsel Was Not Ineffective for Failing to Move to Suppress the Items
Found in the Trunk of the Mercury Because the Search Was Proper Under the
Automobile Exception
Defendant next contends “[t]he
warrantless search of the trunk . . . exceeded the lawful scope of a search
incident to arrest; [and] trial counsel’s failure to object deprived [defendant]
of the ADDIN BA xc <@con> xl 15 s
HTOOEH000054 l "Sixth Amendment"
Sixth Amendment
right to effective assistance of counsel, requiring reversal of counts three
[attempted murder] and five [petty theft].â€
Again, we disagree.
A defendant claiming ineffective
assistance of counsel has the burden to show:
(1) counsel’s performance was deficient, falling below an objective
standard of reasonableness under prevailing professional norms; and (2) the
deficient performance resulted in prejudice.
(
ADDIN BA xc <@cs> xl 75 s HTOOEH000008 xhfl Rep xpl 1 l "Strickland v. Washington (1984)
Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d
674, 693] (
ADDIN BA xc <@$cs> xl 10 s HTOOEH000008 xpl 2 Strickland);
ADDIN BA xc <@cs> xl 47 s
HTOOEH000009 xhfl Rep xpl 1 l "
Cal.3d 171, 216-218" People
v. Ledesma (1987) 43 Cal.3d 171, 216-218.) Prejudice is shown when “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in
the outcome.†( ADDIN BA xc <@$cs> xl 60 s
HTOOEH000008 xhfl Rep xpl 1 Strickland,
p. 698].) Where, as here, the claim is
based on trial counsel’s failure to object or make a motion, a defendant must
prove not only the absence of a reasonable tactical explanation for the
omission but also that the objection or motion would have been
meritorious. ( ADDIN BA xc <@cs> xl 52 s
HTOOEH000010 xhfl Rep xpl 1 l "
Cal.App.4th 1256, 1272" People
v. MacKenzie (1995) 34 Cal.App.4th 1256, 1272.)
Whether a search is
unreasonable under the Constitution is a question of law. ( ADDIN BA xc <@cs> xl 41 s
HTOOEH000011 xhfl Rep xpl 1 l "
Cal.3d 156, 160" People v. Lawler (1973) 9 Cal.3d 156, 160.) Under the ADDIN
BA xc <@con> xl 23 s HTOOEH000012 l "California Constitution" California
Constitution, the reasonableness of a search and seizure is measured
against federal constitutional standards.
(
ADDIN BA xc <@cs> xl 42 s HTOOEH000013 xhfl Rep xpl 1 l "People v. Woods (1999)
BA xc <@con> xl 16 s HTOOEH000055 l "Fourth Amendment" Fourth Amendment
to the ADDIN BA xc <@con> xl 26 s HTOOEH000014
l "United States Constitution"
United States
Constitution, a warrantless search is presumed to be illegal, subject to a
few exceptions. ( ADDIN BA xc <@$id> xl 5 s ID xpl
1 Ibid.)
Here, defendant does not
contest the legality of his arrest or the search of the car’s passenger
compartment. Instead, he disputes the
legality of the search of the car’s trunk incident to his arrest.
Defendant cites ADDIN
BA xc <@cs> xl 53 s HTOOEH000015 xhfl Rep l "Arizona v. Gant (2009)
HTOOEH000015 xpl 1 Gant)
for the proposition that “the warrantless search of the trunk of [his] car
exceeded the lawful scope of a search incident to arrest.†In ADDIN
BA xc <@$cs> xl 4 s HTOOEH000015 Gant, the
United States Supreme Court held that the police may “search a vehicle incident
to a recent occupant’s arrest only when the arrestee is unsecured and within
reaching distance of the passenger compartment at the time of the search†or
“it is reasonable to believe that evidence [relevant to] the offense of arrest
might be found in the vehicle.â€
xhfl Rep xpl 1 Id.
at pp. 343, 335 [
ADDIN BA xc <@$cs> xl 32 s HTOOEH000015 xhfl Rep xpl 2 173 L.Ed.2d at pp. 496, 491], fn.
omitted.) We need not consider whether
the search of the trunk exceeded the lawful scope of a search incident to
arrest because we find it was justified under the automobile exception to the
search warrant requirement.
“If there is probable cause to
believe a vehicle contains evidence of criminal activity, ADDIN
BA xc <@cs> xl 83 s HTOOEH000018 xhfl Rep l "United States v. Ross,
(1982)" United States v. Ross, 456 U.S. 798, 820-821, 102 S.Ct. 2157, 72
L.Ed.2d 572 (1982) [( ADDIN BA xc <@$cs> xl 4 s
HTOOEH000018 xpl 2 Ross)],
authorizes a search of any area of
the vehicle in which the evidence might be found.†( ADDIN BA xc <@$cs> xl 25 s
HTOOEH000015 xhfl Rep xpl 1 Gant,
supra, 556 U.S. 347 [ ADDIN BA xc <@$cs> xl 21 s
HTOOEH000015 xhfl Rep xpl 3 173 L.Ed.2d at p. 498], italics added.) “ ‘Probable cause means “a fair
probability that contraband or evidence of a crime will be
found . . . .†’ †( ADDIN BA xc <@cs> xl 66 s
HTOOEH000019 xhfl Rep xpl 2 l "
U.S. 325, 330 [110 L. Ed. 2d 301, 309]" Alabama v. White (1990) 496 U.S. 325, 330 [110 L. Ed. 2d 301, 308].) Probable cause to search thus exists when the
“known facts and circumstances are sufficient to warrant a [person] of
reasonable prudence in the belief that contraband or evidence of a crime will
be found . . . .†( ADDIN BA xc <@cs> xl 74 s
HTOOEH000020 xhfl Rep xpl 2 l "
(1996)
911, 918].) A probable cause
determination “must be based on objective facts that could justify the issuance
of a warrant by a magistrate and not merely on the subjective good faith of the
police officers.†( ADDIN BA xc <@$cs> xl 54 s
HTOOEH000018 xhfl Rep xpl 2 Ross,
[72 L.Ed.2d at p. 583].)
Officer Hernandez had probable cause
to believe the trunk contained evidence of criminal activity when he searched
it. At the time he searched the Mercury,
he knew defendant was a suspect in an assault.
He arrived at the liquor store just as defendant was being
detained. After defendant was taken into
custody, Officers Olmstead and Hernandez searched the Mercury. Olmstead saw what appeared to be blood on the
exterior of the driver’s side of the car.
Olmstead also saw what appeared to be blood on the interior of the door,
the steering wheel, and the center console.
Hernandez searched the passenger side of the car and did not find
anything of interest. Thereafter, he searched
the trunk where he found a small wooden bat that appeared to have blood on it
and Dean’s purse. While Hernandez did
not testify that he had seen what appeared to be blood on or in the Mercury, it
is inconceivable that he was not aware of its presence given that he searched
the passenger side of the passenger compartment while Olmstead searched the
driver’s side. These facts provided
Hernandez with probable cause to believe the car contained evidence of
activity.
(See ADDIN BA xc <@cs> xl 43 s
HTOOEH000021 xhfl Rep xpl 1 l "
Cal.4th 978, 1044" People
v. Kraft (2000) 23 Cal.4th 978, 1044 [“Having found a substance
suspected to be blood,
searching officers clearly had probable
cause to believe criminal activity had occurred in the car . . . .â€], underscore added.) Accordingly, he could lawfully search “any
area of the vehicle in which the evidence might be found.†( ADDIN BA xc <@$cs> xl 49 s
HTOOEH000015 xhfl Rep xpl 1 Gant,
supra, 556 U.S. 347 [173 L.Ed.2d at p. 498].)
Because Officer Hernandez’s
search of the trunk was lawful under the automobile exception to the search
warrant requirement, we reject defendant’s claim that his trial counsel
rendered ineffective assistance by failing to move to suppress the evidence
found during that search.
HTOOEH000022 xhfl Rep xpl 1 l "
Cal.App.4th 823, 836" People
v. Szadziewicz (2008) 161 Cal.App.4th 823, 836 [“Counsel’s failure to
make a futile or unmeritorious motion or request is not ineffective
assistance.â€].)
III
The Trial
Court Properly Admitted Evidence Concerning a Prior Incident of Domestic
Violence
Finally, defendant argues the
admission of evidence concerning a prior incident of domestic violence pursuant
to ADDIN BA xc <@st> xl 26 s
HTOOEH000023 l "Evidence Code section 1109"
Evidence Code section
1109 violated his federal constitutional rights to due process and equal
protection, and such evidence should have been excluded pursuant to ADDIN
BA xc <@st> xl 25 s HTOOEH000024 l "Evidence Code section 352" Evidence Code section
352. We reject both claims.
The prosecution moved in
limine to admit evidence concerning defendant’s 2007 convictions for assault
with a knife, brandishing a knife, and spousal battery to establish defendant’s
propensity to commit acts of domestic violence.
In support of its motion, the prosecution made the following
proffer: On June 27, 2007, Dean’s
brother heard Dean and defendant arguing in the front room. Dean’s brother entered the front room and saw
defendant pointing a knife at Dean and heard defendant threatening to kill
Dean. When Dean’s brother attempted to
intervene, defendant pointed the knife at him and threatened to kill him. Fearing defendant was going to stab her, Dean
grabbed the knife with both hands and during the process was cut twice on her
left forearm. Dean’s brother called the
police over Dean’s objection. When the
police arrived, Dean said she did not want to press charges and would not testify
or show up in court. She said she just
wanted defendant out of her life.
Defendant moved in limine to exclude
such evidence because “the defense has not received any reports. Therefore, the defense requests the exclusion
of any prior charged or uncharged domestic violence incidents between William
White and Willie Dean-White. ( ADDIN BA xc <@st> xl 27 s
HTOOEH000025 xpl 1 l "Evidence Code, §§ 1109, 352"
Evidence Code,
§§ 1109, 352.)â€
the time of the hearing, defendant’s trial counsel had received information
concerning the June 27, 2007, incident and conceded the evidence was admissible
under ADDIN BA xc <@$st> xl 26 s
HTOOEH000023 Evidence Code section
1109. The trial court agreed,
finding “[i]t is clearly a domestic violence incident in which allegedly the
defendant here started out by threatening to harm [Dean] and wound up cutting
her . . . .â€
ADDIN
BA xc <@$st> xl 26 s HTOOEH000023 Evidence Code section 1109 permits the
admission of a defendant’s other acts of domestic violence for the purpose of
showing a propensity to commit such crimes, subject to certain
limitations. ( ADDIN BA xc <@cs> xl 49 s
HTOOEH000028 xhfl Rep xpl 1 l "
Cal.App.4th 1222, 1233" People
v. Brown (2011) 192 Cal.App.4th 1222, 1233.) More particularly, ADDIN
BA xc <@st> xl 46 s HTOOEH000029 l "Evidence Code section 1109, subdivision (a)(1)" Evidence Code section
1109, subdivision (a)(1) provides in relevant part: “[I]n a criminal action
in which the defendant is accused of an offense involving domestic violence,
evidence of the defendant's commission of other domestic violence is not made
inadmissible by ADDIN BA xc <@osdv> xl 12 s
HTOOEH000056 l "Section 1101" Section 1101 if
the evidence is not inadmissible pursuant to ADDIN
BA xc <@$st> xl 11 s HTOOEH000024 Section 352.†ADDIN
BA xc <@$st> xl 25 s HTOOEH000024 Evidence Code section 352 states: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.â€
Defendant argues the admission of
propensity evidence under ADDIN
BA xc <@$st> xl 26 s HTOOEH000023 Evidence Code section
1109 violated his federal constitutional rights to due process or equal
protection. Similar constitutional
challenges have been repeatedly rejected, and courts, including this one, have
held the admission of evidence pursuant to ADDIN
BA xc <@$st> xl 26 s HTOOEH000023 Evidence Code section 1109 does not violate
a defendant’s rights to due process and equal protection. ( ADDIN BA xc <@$cs> xl 58 s
HTOOEH000028 xhfl Rep xpl 1 People
v. Brown, supra, 192 Cal.App.4th at p. 1233, fn. 14 [admission of
evidence pursuant to ADDIN
BA xc <@$st> xl 26 s HTOOEH000023 xpl 2 Evidence Code section 1109 does not violate
defendant’s right to due process or equal protection]; ADDIN
BA xc <@cs> xl 53 s HTOOEH000030 xhfl Rep xpl 1 l "People v. Cabrera (2007)
[admission of evidence pursuant to ADDIN
BA xc <@$st> xl 26 s HTOOEH000023 xpl 2 Evidence Code section 1109 does not violate
defendant’s right to due process]; ADDIN
BA xc <@cs> xl 47 s HTOOEH000031 xhfl Rep xpl 1 l "People v. Price (2004)
evidence pursuant to ADDIN
BA xc <@$st> xl 26 s HTOOEH000023 xpl 2 Evidence Code section 1109 does not violate
defendant’s right to due process or equal protection]; ADDIN
BA xc <@cs> xl 55 s HTOOEH000032 xhfl Rep xpl 1 l "People v. Escobar (2000)
[admission of evidence pursuant to ADDIN
BA xc <@$st> xl 26 s HTOOEH000023 xpl 2 Evidence Code section 1109 does not violate
defendant’s right to due process]; ADDIN
BA xc <@cs> xl 56 s HTOOEH000033 xhfl Rep xpl 1 l "People v. Jennings (2000)
[admission of evidence pursuant to ADDIN
BA xc <@$st> xl 26 s HTOOEH000023 xpl 2 Evidence Code section 1109 does not violate
defendant’s right to due process or equal protection]; ADDIN
BA xc <@cs> xl 48 s HTOOEH000034 xhfl Rep xpl 1 l "People v. Johnson (2000)
evidence pursuant to ADDIN
BA xc <@$st> xl 26 s HTOOEH000023 xpl 2 Evidence Code section 1109 does not violate
defendant’s right to due process].) We
see no reason to revisit those decisions here.
Defendant also claims that
even if the evidence is not constitutionally barred, the trial court abused its
discretion by failing to exclude it pursuant to ADDIN
BA xc <@$st> xl 25 s HTOOEH000024 Evidence Code section 352 because “Dean’s
trial testimony flatly contradicted the prosecution’s offer of proof.†According to defendant, “Dean’s trial
testimony fails to support the trial court’s conclusion that the incident
involved domestic violence; [and] even if [it] may have, the evidence was so
conflicting that it was likely to confuse the issues. The potential prejudice thus outweighed any
probative value of the evidence.â€
This claim was not preserved for
appeal. “A verdict or finding shall not
be set aside, nor shall the judgment or decision based thereon be reversed, by
reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection
to or a motion to exclude or to strike the evidence that was timely made and so
stated as to make clear the specific ground of the objection or motion . .
. .†(
ADDIN BA xc <@st> xl 17 s HTOOEH000035 xpl 1 l "Evid. Code, § 353" Evid. Code,
§ 353.) Here, while defendant
initially argued the challenged evidence should be excluded because the defense
had not been provided with “any reports,†at the hearing on the parties’
respective motions defendant’s trial counsel acknowledged receiving information
concerning the June 27, 2007, incident and conceded the evidence was admissible
under ADDIN BA xc <@$st> xl 26 s
HTOOEH000023 Evidence Code section
1109. By making this concession,
defendant effectively withdrew her prior objection, and thus, failed to
preserve the issue for appeal.
Even assuming the issue had been
preserved for appeal, it fails on the merits.
“We review the correctness of the trial court’s ruling at the time it
was made, . . . and not by reference to evidence produced at a later
date.†( ADDIN BA xc <@cs> xl 42 s
HTOOEH000036 xhfl Rep xpl 1 l "
Cal.4th 701, 739" People
v. Welch (1999) 20 Cal.4th 701, 739.)
The trial court did not have Dean’s trial testimony before it at the
time of its ruling. Accordingly,
defendant has failed to establish the trial court abused its discretion in
admitting the challenged evidence. In
any event, Dean’s trial testimony was not inconsistent with a finding that the
prior incident involved domestic violence.
While Dean testified that the dispute initially was between defendant
and her brother, she went on to state that she intervened in the dispute, and
defendant “scraped†her with a knife, resulting in nerve damage to three of her
fingers. Moreover, at trial defendant
admitted he was convicted of battery on a spouse, among other things, as a
result of that incident.
Evidence concerning the June 27,
2007, incident was properly admitted.
DISPOSITION
The judgment is
affirmed.
BLEASE , Acting
P. J.
We
concur:
BUTZ ,
J.
HOCH , J.
name="_ftn1" title="">[1] Further undesignated statutory
references are to the ADDIN BA xc <@ost> xl 10 s
HTOOEH000038 l "Penal
Code" Penal Code.
name="_ftn2" title="">[2] Defendant was sentenced as
follows: 25 years to life for attempted
murder (count 3), plus a consecutive 4 years for inflicting great bodily
injury and a consecutive 1 year for use of a deadly weapon; a consecutive
25 years to life for assault with a deadly weapon (count 1); a concurrent 6
months for petty theft (count 5); a concurrent 6 months for contempt of court
(count 6); and a consecutive 6 years for the prior prison terms. The trial court struck defendant’s conviction
for inflicting corporal injury on a spouse (count 4) as duplicative of
count 3, and stayed defendant’s sentence for making criminal threats (count 2)
under ADDIN BA xc <@osdv> xl 11 s
HTOOEH000050 l "section
654" section 654.
