https://www.fearnotlaw.com/wsnkb en-us The Santa Cruz County Human Services Department (Department) filed a juvenile dependency petition on behalf of K.P. shortly after her birth. (Welf. & Inst. Code, § 300, subd. (b)(1) (failure to protect).) At the jurisdiction/disposition hearing, the juvenile court removed K.P. from the custody of her mother, A.P. (mother), and declared K.P. a dependent child of the court. It also appointed K.P.’s counsel to serve as an educational rights holder, sharing educational rights as to K.P. with mother. We reverse the court’s educational rights order, concluding that it had no authority to appoint a co-holder of educational rights to share decision-making as to educational and developmental services with mother. https://www.fearnotlaw.com/wsnkb/articles/in-re-kp-ca-69254.html Wed, 14 Mar 2018 19:00:37 GMT https://www.fearnotlaw.com/wsnkb/articles/in-re-kp-ca-69254.html NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

In re K.P., a Person Coming Under the Juvenile Court Law. H045170
(Santa Cruz County
Super. Ct. No. 17JU00238)

SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT,

Plaintiff and Respondent,

v.

A.P.,

Defendant and Appellant.

The Santa Cruz County Human Services Department (Department) filed a juvenile dependency petition on behalf of K.P. shortly after her birth. (Welf. & Inst. Code, § 300, subd. (b)(1) (failure to protect).) At the jurisdiction/disposition hearing, the juvenile court removed K.P. from the custody of her mother, A.P. (mother), and declared K.P. a dependent child of the court. It also appointed K.P.’s counsel to serve as an educational rights holder, sharing educational rights as to K.P. with mother.
Mother appeals (§ 395, subd. (a)(1)), challenging the juvenile court’s order regarding educational rights. Mother argues that the court abused its discretion and unnecessarily interfered with her constitutional rights as a parent. More specifically, mother asserts (1) that K.P.’s counsel cannot be a holder of educational rights because counsel “has a conflict of interest in the case,” (2) that the governing statute does not contemplate a parent and a nonparent jointly holding educational rights, and (3) that it was unnecessary to limit mother’s educational rights because by the time of disposition she was taking her medication, participating in services, and attending substance abuse treatment.
We reverse the court’s educational rights order, concluding that it had no authority to appoint a co-holder of educational rights to share decision-making as to educational and developmental services with mother.
I
Procedural History
On August 9, 2017, a juvenile dependency petition was filed under section 300, subdivision (b)(1), on behalf of K.P. The petition alleged the following facts. Mother suffered from “unstable and/or untreated mental health issues,” which included but were not necessarily limited to Bipolar Disorder, that negatively impacted her ability to provide safe and appropriate care for K.P. Mother’s mental health issues caused her “to behave in a combative, volatile and erratic manner.” On or about July 31, 2017, mother “went into the hospital while in labor but would not cooperate with medical staff which necessitated that they give her general anesthesia to deliver her daughter.” K.P. “was born medically fragile at three pounds and stopped breathing for approximately ten minutes.” She might “be suffering from Down’s Syndrome.” Mother left the hospital against medical advice. Mother was later arrested for committing battery on a peace officer after throwing a rock at an officer. Mother’s “unstable and/or untreated mental health issues place[d] her newborn, medically fragile daughter, [K.P.] at substantial risk of serious physical harm.”
The petition also alleged the following facts as to mother’s substance abuse. Mother abused controlled substances, including but not necessarily limited to methamphetamine, and alcohol, and her substance abuse “negatively impact[ed] her ability to provide safe and appropriate care for her daughter, [K.P.]” Mother had “a long history of substance abuse,” and she had “used methamphetamine and alcohol while pregnant with the minor.” Mother’s substance abuse and failure to receive prenatal care placed K.P. at substantial risk of serious physical harm.
In addition, the petition alleged the following facts concerning K.P.’s alleged father, N.B. N.B. abused controlled substances, including but not necessarily limited to methamphetamine and alcohol. His substance abuse impacted his ability to provide safe and appropriate care for K.P. N.B. was “unable and/or unwilling to provide the minor, [K.P.] with her basic needs or protect her from the behavior of her mother.” N.B. wanted “paternity testing to ensure that he [was] in fact [K.P.’s] father,” but he “declined to test for the Department.” N.B. was “not in a position to care for [K.P.] full time,” which placed K.P. “at substantial risk of harm and/or neglect.”
The jurisdiction/disposition report disclosed, among other information, that K.P. was born with Down’s Syndrome and had several heart defects. K.P. weighed “just three pounds” at birth, and she “stopped breathing on her own for approximately 10 minutes which required resuscitation.” At the hospital, mother was combative with medical staff. “At the time of delivery, [she] presented as agitated and combative.” “Mother was given general anesthesia and gave birth via cesarean section.”
According to the jurisdiction/disposition report, mother had “a mental health diagnosis of Bipolar Disorder and reportedly stopped taking her Lithium medication sometime between September and December 2016.” Mother had not obtained any prenatal care. During her pregnancy, mother “used marijuana and smoked cigarettes.” “Mother tested positive for THC at the time of delivery,” but she claimed that she had been in “recovery from methamphetamine for three months.” A hospital social worker reported that K.P.’s umbilical cord tested positive for marijuana. N.B. believed that mother had “used methamphetamine and marijuana throughout the pregnancy.” In 2015, mother had tested positive for opiates at the hospital.
The report indicated that, following K.P.’s birth, “mother left the hospital against medical advice and was arrested later that same day in Boulder Creek for acting erratically at passing drivers and assaulting a police officer.” Several days later, mother was arrested “for throwing a rock at a California Highway Patrol officer on Highway 9,” and she was brought to the hospital for medical clearance before being transported to jail. She was “very dirty and not wearing shoes,” and she was not lucid. Mother’s “speech pattern was difficult to follow,” and “[h]er answers were tangential and nonsensical.” At the time the report was written, mother was in “the Santa Cruz County Jail on charges of petty theft, vandalism, and resisting arrest.”
The report stated that K.P. had an upcoming occupational therapy appointment, that the California Children Services Program was “assessing the need for further services,” and that a referral would “be made to the San Andreas Regional Center on her behalf.” It reported that K.P.’s “developmental status will continue to be monitored throughout the duration of the dependency.” As to her educational status, the report stated that K.P. was “an infant and therefore [she was] not enrolled in school.”
A contested jurisdiction/disposition hearing was held on October 13, 2017. The juvenile court admitted the jurisdiction/disposition report and attachments into evidence, subject to the objections of mother’s counsel. Mother’s counsel introduced four exhibits into evidence and called mother to testify. Counsel for K.P. did not present any evidence.
Following the presentation of evidence and argument at the hearing, the juvenile court found that the allegations of the petition were true, and that K.P. was a person described by section 300, subdivision (b). The court removed K.P. from parental custody and declared her a dependent child of the court. It ordered reunification services for mother. The court ordered mother to undergo two psychological or psychiatric evaluations to assess the mother’s capacity to parent and her capacity to utilize reunification services.
During the jurisdiction/disposition hearing, the Department’s counsel had asked the court to grant “shared” educational rights to Georgina Dews, K.P.’s counsel, for the interim and to order a CASA (Court Appointed Special Advocate) “so that a CASA may be able to ultimately step in as a shared ed rights holder.” Dews reiterated that her appointment would be shared and temporary and that she would “step back” once a CASA stepped in. The court found it in K.P.’s best interest to have mother share education rights with Dews, K.P.’s court-appointed attorney. The court referred the case to the CASA program. The court did not use Form JV-535, entitled “Order Designating Educational Rights Holder,” which the Judicial Council has adopted for mandatory use.
II
Discussion
A. Governing Law
“In all cases in which a minor is adjudged a dependent child of the court on the ground that the minor is a person described by Section 300, the court may limit the control to be exercised over the dependent child by any parent . . . and shall by its order clearly and specifically set forth all those limitations. Any limitation on the right of the parent or guardian to make educational or developmental services decisions for the child shall be specifically addressed in the court order. The limitations may not exceed those necessary to protect the child.” (§ 361, subd. (a)(1), italics added.)
“If the court specifically limits the right of the parent . . . to make educational or developmental services decisions for the child . . . , the court shall at the same time appoint a responsible adult to make educational or developmental services decisions for the child.” (§ 361, subd. (a)(1), italics added.) If the juvenile court limits a parent’s educational rights, the court “must follow the procedures in rules 5.649-5.651.” (Cal. Rules of Court, rule 5.695(b)(3).)
“ ‘Educational rights holder’ means the adult identified or appointed by the court to make educational or developmental-services decisions for a child . . . .” (Rule 5.502(13).) “The court must identify the educational rights holder for the child on form JV-535 at each hearing in a dependency . . . proceeding. Unless his or her rights have been limited by the court . . . , the parent or guardian holds the educational and developmental-services decisionmaking rights for his or her child.” (Rule 5.649.)
“At the dispositional hearing and at all subsequent hearings [that might affect the child’s education or receipt of developmental services], the court must: [¶] (A) Consider and determine whether the child’s . . . educational, physical, mental health, and developmental needs, including any need for special education and related services, are being met; [¶] (B) Identify the educational rights holder on form JV-535; and [¶] (C) Direct the rights holder to take all appropriate steps to ensure that the child’s . . . educational and developmental needs are met.” (Rule 5.651(b)(2).) “At the dispositional hearing and each subsequent review or permanency hearing, the court must determine whether the rights of a parent . . . to make educational or developmental-services decisions for the child should be limited. [¶] If necessary to protect a child who is adjudged a dependent . . . of the court under section 300 . . . , the court may limit a parent’s . . . rights to make educational or developmental-services decisions for the child by making appropriate, specific orders on Order Designating Educational Rights Holder (form JV-535).” (Rule 5.649(a).)
“If the court limits, even temporarily, the rights of a parent or guardian to make educational or developmental-services decisions for a child under rule 5.649, the court must immediately proceed under rule 5.650 to appoint a responsible adult as educational rights holder for the child.” (Rule 5.534(f)(1).) “Whenever it limits, even temporarily, the rights of a parent or guardian to make educational or developmental-services decisions for a child, the court must use form JV-535 to appoint a responsible adult as educational rights holder . . . .” (Rule 5.650(a).)
“A court-appointed educational rights holder is responsible for protecting the child’s rights and interests with respect to educational or developmental services, including any special education and related services.” (Advisory Com. com., 23 pt. 2 West’s Ann. Codes, Court Rules (2017 ed.) foll. rule 5.650, p.749.) An appointed education rights holder must act in the child’s best interest. (See § 361, subd. (a)(6); Rule 5.650(f)(3)(A) & (D); In re Samuel G. (2009) 174 Cal.App.4th 502, 510-511.) The educational rights holder’s term of service terminates if “[t]he rights of the parent or guardian to make educational or developmental-services decisions for the child are fully restored.” (Rule 5.650(g)(1)(B).)
When appointing an educational rights holder, the juvenile court must “determine whether a responsible adult relative, nonrelative extended family member, or other adult known to the child is available and willing to serve as the educational rights holder and, if one of those adults is available and willing to serve, should consider appointing that person before appointing or temporarily appointing a responsible adult not known to the child.” (Rule 5.650(c)(1).) “An individual who would have a conflict of interest in representing the child . . . shall not be appointed to make educational or developmental services decisions. For purposes of this section, ‘an individual who would have a conflict of interest’ means a person having any interests that might restrict or bias his or her ability to make educational or developmental services decisions, including, but not limited to, those conflicts of interest prohibited by Section 1126 of the Government Code, and the receipt of compensation or attorney’s fees for the provision of services pursuant to this section.” (§ 361, subd. (a)(2), italics added.)
At each status review hearing after the disposition hearing, the court’s review must determine “[w]hether there should be any limitation on the right of the parent or guardian to make educational decisions or developmental services decisions for the child.” (§ 366, subd. (a)(1)(C).) Any limitations must “be specifically addressed in the court order and may not exceed those necessary to protect the child.” (Ibid.) “Whenever the court specifically limits the right of the parent or guardian to make educational decisions or developmental services decisions for the child, the court shall at the same time appoint a responsible adult to make educational decisions or developmental services decisions for the child pursuant to Section 361.” (Ibid.)
Courts “review the juvenile court’s order limiting parents’ educational rights under an abuse of discretion standard [citation], bearing in mind ‘[t]he focus of dependency proceedings is on the child, not the parent’ [citation].” (In re R.W. (2009) 172 Cal.App.4th 1268, 1277.)
B. Failure to Preserve Claims for Appellate Review
The Department argues that mother forfeited the issue of the propriety of the juvenile court’s education rights order by failing to object below.
“ ‘ “No procedural principle is more familiar to this Court than that a constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” [Citation.]’ [Citation.]” (People v. Saunders (1993) 5 Cal.4th 580, 590, fn. omitted.) “[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected.” (In re S.B. (2004) 32 Cal.4th 1287, 1293, (S.B.) fn. omitted.) “Dependency matters are not exempt from this [forfeiture] rule. [Citations.]” (Ibid.)
“In general, forfeiture of a claim not raised in the trial court by a party has not precluded review of the claim by an appellate court in the exercise of that court’s discretion. [Citations.] Thus, an appellate court may review a forfeited claim--and ‘[w]hether or not it should do so is entrusted to its discretion.’ [Citations.]” (In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7.) But “the appellate court’s discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue. [Citations]” (S.B., supra, 32 Cal.4th at p. 1293.) “Although an appellate court’s discretion to consider forfeited claims extends to dependency cases [citations], the discretion must be exercised with special care in such matters. ‘Dependency proceedings in the juvenile court are special proceedings with their own set of rules, governed, in general, by the Welfare and Institutions Code.’ [Citation.] Because these proceedings involve the well-being of children, considerations such as permanency and stability are of paramount importance. (§ 366.26.)” (Ibid.)
It is undisputed that mother’s counsel did not object when the Department’s counsel asked the court to appoint K.P.’s counsel as a holder of educational rights, along with mother, or when the court made its order. She simply said in that regard, “I just want to give the brochures regarding educational rights and CASA to the mother.” Since there was no objection, the Department did not have any reason to develop the factual record supporting its request. Under these circumstances, we conclude that the mother failed to preserve the claims being raised on appeal.
Nevertheless, we exercise our discretion to reach a purely legal issue of statutory construction, namely whether section 361 and the implementing court rules permit a juvenile court to appoint a co-holder of educational rights to share decision-making with a parent.
C. Educational Rights Holder
Mother asserts that the court’s appointment of a nonparental, co-holder of educational rights interferes with her constitutional right to make educational and developmental decisions regarding K.P. The Department argues that “the statutory scheme does not preclude such an arrangement.” It contends that language in section 361, subdivision (a)(1), which states that “[t]he limitations may not exceed those necessary to protect the child,” “supports the appointment of joint holders of educational and developmental rights.” The Department maintains that the court’s order was appropriate because it was “unclear when [mother’s] mental health will clear,” and it suggests “shared rights” allow mother “to be as included [in decisions] as she is able to be, while allowing for ever increasing responsibility, as her mental health clears, without having to come back to court.” We are not persuaded by those arguments.
“[T]he Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” (Troxel v. Granville (2000) 530 U.S. 57, 66.) “More than 75 years ago, in Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923), [the United States Supreme Court] held that the ‘liberty’ protected by the Due Process Clause includes the right of parents to ‘establish a home and bring up children’ and ‘to control the education of their own.’ Two years later, in Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925), [the court] again held that the ‘liberty of parents and guardians’ includes the right ‘to direct the upbringing and education of children under their control.’ ” (Id. at p. 65.)
“Even after a dependency finding has been made, the statutory scheme is designed to allow retention of parental rights to the greatest degree consistent with the child’s safety and welfare . . . . Thus, the juvenile court may limit the parent’s . . . supervision and control of the child in specified ways (§§ 361, subd. (a), 362) . . . .” (In re Ethan C. (2012) 54 Cal.4th 610, 625.)
The Department has not cited any provision in the Welfare and Institutions Code, the court rules, or the mandatory judicial counsel form JV-535 that explicitly provides for the appointment of a co-holder to somehow share decision-making regarding educational or developmental services with a parent. We do not see any ambiguous language in section 361 or the implementing court rules that might be construed as permitting such shared decision-making if a parent is not capable of independently meeting the child’s needs for educational and developmental services.
Consistent with a parent’s constitutional right to make educational decisions and other decisions regarding their children’s care, section 361 provides that any limitations placed on the right of the parent to make educational or developmental services decisions for the child “may not exceed those necessary to protect the child.” (§ 361, subd. (a)(1).) The juvenile court must “clearly and specifically set forth” the limitations on the right of the parent to make educational or developmental services decisions for the child in its order limiting those rights. (Ibid.) Where such limitations are imposed on a parent, the court must “at the same time appoint a responsible adult to make educational or developmental services decisions for the child . . . .” (Ibid.)
We have not found any statutory provision or rule permitting shared decision-making between a parent and an appointed educational rights holder. Moreover, if a parent is fully capable of making educational and developmental services decisions, a court is constitutionally prohibited from appointing someone else to make, or share in making, those decisions. But the statute contemplates that, if a parent of a dependent child is not capable of making certain educational or developmental services decisions, someone else will make those decisions in order to protect the child and meet the child’s needs.
“The educational rights holder is responsible for investigating the child’s . . . educational and developmental-services needs, determining whether those needs are being met, and acting on behalf of the child . . . in all matters relating to the provision of educational or developmental services, as applicable, to ensure,” among other things, “[t]he provision of any appropriate early intervention or developmental services required by law, including the California Early Intervention Services Act or the Lanterman Developmental Disabilities Services Act.” (Rule 5.650(f)(2)(G).) The jurisdiction/disposition report indicates that, in this case, the educational rights holder may need to make decisions that protect K.P.’s eligibility for, and entitlement to receive, needed services through the California Children Services Program or the San Andreas Regional Center.
The court acted beyond its authority in designating a co-holder of educational rights to share decision-making with mother. If mother is unable to make educational or developmental services decisions that meet K.P.’s needs due to the instability of her mental health, substance abuse problems, or other circumstances, the court should appoint an educational rights holder to step into the parental role.
DISPOSITION
The educational rights order is reversed. The matter is remanded for further proceedings not inconsistent with this opinion.




_________________________________
ELIA, Acting P. J.

WE CONCUR:



_______________________________
BAMATTRE-MANOUKIAN, J.



_______________________________
MIHARA, J.












In re K. P.; Santa Cruz County HSD v. A.P.
H045170
]]> https://www.fearnotlaw.com/wsnkb/thread/69254/ Code, § 11377, subd. (a)) and misdemeanor possession of controlled substance paraphernalia (former § 11364.1). He also admitted that he had one prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). The trial court sentenced defendant to 32 months in prison, which was deemed satisfied by credit for time served. On appeal, defendant contends the trial court abused its discretion by denying his post-plea Marsden motion. He argues that he was not receiving adequate legal representation, because his counsel failed to file a motion to withdraw the plea based on defendant’s unawareness at the time of the plea that he would have to wear an ankle monitor on parole. Defendant further argues that he had the right to seek withdrawal of his plea where legitimate grounds existed, even if his counsel did not believe it was in defendant’s best interest. For reasons that we will explain, we will affirm the judgment. https://www.fearnotlaw.com/wsnkb/articles/p-v-price-ca-69253.html Wed, 14 Mar 2018 18:59:45 GMT https://www.fearnotlaw.com/wsnkb/articles/p-v-price-ca-69253.html NOT TO BE PUBLISHED IN 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

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

JONATHAN AMORAE PRICE,

Defendant and Appellant.
H044289
(Santa Clara County
Super. Ct. No. C1371953)
I. INTRODUCTION
Defendant pleaded no contest to possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and misdemeanor possession of controlled substance paraphernalia (former § 11364.1). He also admitted that he had one prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). The trial court sentenced defendant to 32 months in prison, which was deemed satisfied by credit for time served.
On appeal, defendant contends the trial court abused its discretion by denying his post-plea Marsden motion. He argues that he was not receiving adequate legal representation, because his counsel failed to file a motion to withdraw the plea based on defendant’s unawareness at the time of the plea that he would have to wear an ankle monitor on parole. Defendant further argues that he had the right to seek withdrawal of his plea where legitimate grounds existed, even if his counsel did not believe it was in defendant’s best interest.
For reasons that we will explain, we will affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Complaint
In December 2013, defendant was charged by complaint with possession of a controlled substance (§ 11377, subd. (a); count 1) and misdemeanor possession of controlled substance paraphernalia (former § 11364.1; count 2). The complaint further alleged that defendant had a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) for a violation of Penal Code section 288, subdivision (a).
B. The First Marsden Motion
On April 3, 2015, defendant requested substitution of appointed counsel. The trial court held a Marsden hearing and denied the request to change counsel.
C. The Pleas
A change of plea hearing was held on May 18, 2016. By this time, defendant had new counsel because his prior counsel was on medical leave.
Defendant’s new appointed counsel stated that she had relayed to defendant the two options that had been discussed at the bench. The first option was a 32-month “top and bottom” sentence. Counsel believed defendant was “very close” to having enough presentence credits to satisfy that sentence. The second option was a 32-month “top” with a full report by probation, an oral Romero motion requesting that the court dismiss a strike, and a request that defendant be granted probation with a county jail sentence. Counsel stated that if defendant took the first option, he would be sentenced on June 3, and if he took the second option, he would be sentenced later on June 20.
Defendant’s counsel indicated to the trial court that defendant wanted the first option—the 32-month “top and bottom.” She explained that defendant was “very anxious to be sentenced on the earliest date possible with his belief that he has enough credits.” Counsel had told defendant that she did not know his actual credits but that she believed he was very close to 32 months.
Defendant’s counsel asked whether the trial court would release defendant prior to sentencing with a “Cruz waiver.” The trial court indicated that it would not release defendant prior to the earliest sentencing date of June 3.
Before defendant entered his pleas, the trial court asked him several questions. Among other matters, defendant confirmed that his counsel had explained to him the charges, the elements that the prosecution had to prove, and any potential defenses. The court set forth defendant’s constitutional rights, and defendant indicated his understanding and waiver of those rights. The court further informed defendant that following his release from prison, he would be placed on parole or post release community supervision for three years.
Defendant pleaded no contest to both counts and admitted that he had one prior strike conviction. His counsel concurred in the pleas, waivers, and admission and stipulated to a factual basis. The trial court found that defendant made a knowing and intelligent waiver of his rights, freely and voluntarily, and that there was a factual basis for his pleas and admission. Defendant did not waive time for sentencing, and the matter was set for sentencing.
At the outset of the initial sentencing hearing on June 3, 2016, defendant’s counsel stated that defendant regretted his decision to accept the 32-month “top and bottom,” and that he now preferred the second option, the 32-month “top” with a Romero motion. Counsel indicated that she did not believe there were grounds for defendant’s withdrawal of his plea, and that a “Smith/Marsden hearing” was needed so that defendant could explain his grounds for withdrawal of his plea. The court set the matter for hearing on the “Smith/Marsden” issue on June 21, 2016.
D. The Second Marsden Motion
The trial court that took defendant’s pleas also presided over the hearing on June 21, 2016. Before the court heard defendant’s Marsden motion, defendant’s counsel raised several issues in open court.
First, defendant’s counsel indicated that defendant had agreed to the first plea option because the sentencing date was sooner, he had been in custody for a long time, and he was anxious to move forward and get out of custody. By the time of the sentencing hearing, however, defendant had indicated to counsel “that he did not want to be both on probation[ ] and parole and was willing to do additional time in order to avail himself of the previous offer of 32 months top.” Counsel requested that, “even though technically and legally a motion to withdraw the plea would be the proper way to go, . . . the Court, given the circumstances of this case and [defendant’s] mental health history, grant some leniency in this matter and have some understanding of his dilemma and allow him to withdraw his plea.”
Second, defendant’s counsel stated that if the court did not allow withdrawal of the plea “out of the goodness of the Court’s heart,” then the issue was whether there were legal grounds to withdraw the plea. Counsel did not believe defendant had such grounds.
Third, if the court denied leave to withdraw the plea, defendant’s counsel stated that a “Smith/Marsden” hearing was necessary. Counsel explained that the court could hear defendant’s reasons and his complaints about information that he did not have at the time of his plea, and the court could determine whether counsel was wrong about whether defendant had grounds to withdraw his plea.
The trial court denied defendant’s request to withdraw his plea. The court stated that it had previously made findings that defendant was fully advised and apprised of his rights, options, and consequences of his plea, and that there was a knowing and intelligent waiver of rights. The court stated that there was no basis for withdrawal of the plea due to defendant’s “current desire to have a different outcome.” The court believed it would be an abuse of discretion to grant the motion without legal grounds.
The court proceeded to hold a Marsden hearing. Defendant’s counsel indicated that defendant wanted to state the grounds for withdrawal his plea. Counsel stated that if the court agreed with the grounds, then alternate counsel should be appointed to file a motion to withdraw the plea.
Defendant raised several issues. Relevant here, defendant indicated to the trial court that he had not understood the difference between probation and parole, and that he was not informed that he would have to wear an ankle monitor while on parole. He wanted probation, because being on parole would affect his employment at a fitness center. Defendant stated that the ankle monitor would have to be charged every six hours, that he might need to take a bus to and from work, and that the fitness center would not let him work for only two or three hours. The fitness center told him that he could get his job back if he was on probation but not on parole. Defendant stated that getting released sooner was “not an issue,” and that he would rather be placed on probation with “extended jail time” so that he could get his job back at the fitness center.
The trial court observed that defendant had raised “a lot” of points. The court intended to seek clarification from defendant’s counsel on some of the points and to hear counsel’s assessment of some of the points. The court stated, “Before I do that, and I just want to make clear then, you’re not asking to change attorneys?” (Italics added.) Defendant responded, “No. No. I’m not asking to change attorneys. I’m not asking to change.” (Italics added.)
Defendant’s counsel acknowledged that she did not inform defendant that an ankle monitor was a possibility. She believed that such an advisement might be required if he was taking a plea in a sex case, but not to a drug charge as in this case. Counsel stated that she believed defendant’s priority at the time of the plea was getting out of custody sooner, rather than the issue of parole. She had explained to him the consequences of the 32-month “top and bottom” offer, including that he would be on parole afterwards. Counsel stated that this was the “first time” she had learned defendant was “saying he was unclear that he was going to be on parole versus being on probation.” She stated, “I do know I discussed it with him.”
After hearing further from defendant and counsel, the trial court again sought clarification regarding whether defendant want to substitute counsel. The court stated: “So we’re here for this Marsden hearing, and a Marsden hearing is essentially when you want to change your lawyer. And you made clear that you don’t want to change a lawyer. You just wanted that court to understand there was confusion on your part. Is that clear? Am I stating that correctly?” (Italics added.) Defendant responded, “Yeah.” (Italics added.) The court subsequently denied defendant’s Marsden motion.
In response to the trial court’s question about whether sentencing should proceed, defendant’s counsel stated: “So your Honor, I think at this point I need to research whether his claim that he did not have a knowing plea is an issue for a grounds [sic] for withdrawal of his plea. And I’m not basing this on his not being informed about the ankle bracelet but rather his statement that he did not understand that he was going to be on parole.” The court asked, “Based on counsel’s representation to him or the Court’s representation to him or voir dire of him?” Counsel responded, “I’m basing it on his statement that based on all of his prior conversations, not just with me but with his other attorney, that he believed and understood that he was going to be getting probation and not parole. So that’s my concern, is that there seems to have been—he’s now stating not just that he didn’t know about the ankle bracelet but he was also confused about the consequences of the plea that were told to him. I’m not saying you didn’t say parole. I know you did. I said parole. I know I did. I just don’t know that he understood it.”
After the proceeding resumed in open court, defendant waived time for sentencing. The matter was set for a hearing on the anticipated motion to withdraw the plea and for sentencing.
On August 9, 2016, defendant was released on his own recognizance after agreeing to appear in court on the next hearing date.
E. The Third Marsden Motion
At a hearing on September 16, 2016, defendant’s counsel stated that due to changed circumstances, a motion to withdraw the plea would not be filed. She requested that sentencing be continued “so we can see what happens on the new case.” Counsel further stated that defendant wanted to make a Marsden motion.
The trial court, which was the same court that had taken defendant’s plea and had conducted the prior Marsden hearings, held another Marsden hearing. Before defendant set forth the substance of his Marsden motion, the court observed that it was defendant’s third Marsden motion in the case and his second Marsden motion as to his current counsel. The court stated that a hearing was scheduled for a motion to withdraw the plea, but that defendant’s counsel had indicated that the motion had been withdrawn. The court further stated that a request had been made to continue sentencing “pending another felony case” that had arisen since defendant’s release in the instant case. Counsel confirmed that the pending felony case was the reason that the motion to withdraw the plea was not filed.
Defendant indicated that he wanted to substitute counsel because there had been some misunderstanding and miscommunication between them, and because there was insufficient evidence relating to the “non-use of a syringe.”
Defendant’s counsel explained that at the prior Marsden hearing, the trial court had determined that there were no grounds to withdraw the plea. Counsel believed “however, after [the] previous discussion, perhaps [defendant] didn’t understand the difference between probation and parole, and so at that point [counsel] thought that [she] would file a motion on his behalf to withdraw his plea.” However, defendant was released from custody while counsel was in the process of writing the motion, and he was arrested on a new felony drug charge with a prior strike conviction alleged. Counsel and her supervisor determined that it would not be “prudent at that point” to file a motion to withdraw the plea. Based on presentence credits, defendant had already served his time under the plea option that provided for a 32-month “top bottom.” If defendant was allowed to withdraw his plea, there was a risk that the court would sentence him to additional time, for a total of four or six years, for which defendant would not have enough presentence credits. Counsel also had a conversation with defendant regarding subordinate sentencing, regarding the “worst case scenario” in the new case if he was convicted of a felony, and regarding credits in the two cases. Counsel acknowledged that her discussion with defendant regarding subordinate sentencing may have confused him “more than necessary.” She also believed that he was frustrated because he was telling her that he was not guilty of the new charge, and that she was “not taking at face value that he’s going to be acquitted on that case.” However, counsel had not “seen the new report” and could not “operate on the assumption that he’s going to win that new case.” Rather, she was operating “in a manner to protect his best interests.”
The trial court asked defendant whether he wanted to add anything, and defendant responded, “No.” The court denied defendant’s Marsden motion. The court recognized that there might have been a miscommunication or misunderstanding on defendant’s part. The court believed, however, that defendant’s reasons for requesting substitute counsel was based on “a disagreement or the strategic decisions of counsel” regarding the motion to withdraw the plea.
F. Sentencing
The sentencing hearing was held on October 25, 2016. Defendant renewed his request for probation. The trial court denied probation and sentenced defendant to 32 months in prison on count 1 (double the lower term) and five days on count 2. Defendant’s sentence was deemed satisfied by credit for time served. Defendant was subject to parole supervision or post-release community supervision for a term of three years.
Defendant filed a notice of appeal and request for certificate of probable cause. The trial court granted the request for a certificate of probable cause.
III. DISCUSSION
Defendant contends that the trial court erred by denying his motion to substitute counsel. He argues that he was not receiving adequate legal representation because his counsel failed to file a motion to withdraw the plea where grounds existed to do so. In particular, he contends that he “was unaware of a significant fact when he pled—that he would have to wear an ankle bracelet.” Defendant further argues that he had the right to seek withdrawal of his plea where legitimate grounds existed, even if his counsel did not believe it was in defendant’s best interest.
“ ‘ “When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations.]” [Citations.]’ [Citations.] ‘[S]ubstitution is a matter of judicial discretion. Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would “substantially impair’ the defendant’s right to assistance of counsel.’ [Citations.]” (People v. Hart (1999) 20 Cal.4th 546, 603.)
In this case, the record reflects that defendant made three Marsden motions and that the court denied all three. On appeal, defendant does not challenge the court’s denial of his first Marsden motion, which was made prior to his no-contest pleas.
The second Marsden motion was heard on June 21, 2016, approximately one month after defendant had entered his no contest pleas. At this Marsden hearing, defendant stated, and the court confirmed, that defendant did not want to substitute counsel. Specifically, when the trial court asked about changing attorneys, defendant responded, “No. No. I’m not asking to change attorneys. I’m not asking to change.” Later, just prior to denying the motion, the court again clarified that defendant did not want to change his attorney. The court stated, “So we’re here for this Marsden hearing, and a Marsden hearing is essentially when you want to change your lawyer. And you made clear that you don’t want to change a lawyer. You just wanted that court to understand there was confusion on your part. Is that clear? Am I stating that correctly?” Defendant responded, “Yeah.” Because defendant expressly indicated his desire to continue to be represented by the same appointed counsel, defendant fails to demonstrate an abuse of discretion by the trial court in denying his second Marsden motion.
The third Marsden motion was heard on September 16, 2016. At this Marsden hearing, neither defendant nor his counsel indicated that there was a conflict between them concerning the filing of, or refusal to file, a motion to withdraw the plea based on defendant’s lack of awareness about wearing an ankle monitor. Rather, defendant’s expressed concerns were limited to (1) some misunderstanding and miscommunication with his counsel and (2) an issue concerning whether a syringe was used and the sufficiency of that evidence.
Defendant’s counsel indicated that she had intended, but ultimately decided against, filing a motion to withdraw the plea based on defendant’s lack of understanding of the difference between probation and parole. Counsel never indicated to the court that the intended motion to withdraw pertained to the ankle monitor issue. Indeed, counsel at the prior (second) Marsden hearing had expressly disclaimed any intent to file a motion to withdraw the plea based on the ankle monitor issue. Specifically, at the prior (second) Marsden hearing, counsel indicated that she was going to research whether there were grounds for withdrawal of defendant’s plea, but that she was “not basing [it] on his not being informed about the ankle bracelet.” (Italics added.) Instead, the motion she was considering was based on whether defendant understood “he was going to be getting probation and not parole.”
On this record, by the time of the third Marsden hearing, even assuming defendant had a valid legal ground for bringing a motion to withdraw the plea based on his lack of awareness about wearing an ankle monitor, that issue was not raised as a basis for his request for substitute counsel at the third Marsden hearing. Accordingly, defendant fails to demonstrate that the trial court abused its discretion in denying the third Marsden motion, where the issue of counsel’s refusal to file a motion to withdraw defendant’s plea based on defendant’s lack of awareness concerning an ankle monitor was not an issue raised during the third Marsden hearing.
IV. DISPOSITION
The judgment is affirmed.







___________________________________________
BAMATTRE-MANOUKIAN, J.






WE CONCUR:






__________________________
ELIA, ACTING P.J.






__________________________
MIHARA, J.








People v. Price
H044289

]]> https://www.fearnotlaw.com/wsnkb/thread/69253/ Defendant Pedro Alvarez appeals from a judgment entered after a jury found him guilty of three counts of custodial possession of a weapon (Pen. Code, § 4502, subd. (a) - counts 1, 5, and 6), two counts of assault by a state prisoner (§ 4501 - counts 2 and 4), and one count of attempted murder (§§ 664/187, subd. (a) - count 3). As to count 5, the jury found true the allegation that defendant personally used a deadly weapon (§ 969f, subd. (a)). The jury also found true the allegation that defendant committed attempted murder (count 3) with premeditation and deliberation. Defendant admitted that he had suffered four strike priors (§ 1170.12). The trial court sentenced defendant to a total term of 52 years to life in state prison. https://www.fearnotlaw.com/wsnkb/articles/p-v-alvarez-ca-69252.html Wed, 14 Mar 2018 18:59:24 GMT https://www.fearnotlaw.com/wsnkb/articles/p-v-alvarez-ca-69252.html NOT TO BE PUBLISHED IN 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

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

PEDRO ALVAREZ,

Defendant and Appellant.
H043801
(Monterey County
Super. Ct. No. SS150987)

Defendant Pedro Alvarez appeals from a judgment entered after a jury found him guilty of three counts of custodial possession of a weapon (Pen. Code, § 4502, subd. (a) - counts 1, 5, and 6), two counts of assault by a state prisoner (§ 4501 - counts 2 and 4), and one count of attempted murder (§§ 664/187, subd. (a) - count 3). As to count 5, the jury found true the allegation that defendant personally used a deadly weapon (§ 969f, subd. (a)). The jury also found true the allegation that defendant committed attempted murder (count 3) with premeditation and deliberation. Defendant admitted that he had suffered four strike priors (§ 1170.12). The trial court sentenced defendant to a total term of 52 years to life in state prison.
On appeal, defendant contends: (1) the trial court erred when it granted the prosecution’s motion to consolidate two cases arising from separate incidents; (2) there was insufficient evidence to support his convictions on counts 3, 4, and 5; (3) the trial court erred when it found that Miranda did not apply to Correctional Officer (CO) Schlitz’s questions to defendant about the weapons in his Bibles; (4) the trial court erred when it admitted expert testimony and failed to instruct the jury pursuant to CALCRIM No. 332; (5) the prosecutor committed multiple acts of prosecutorial misconduct; and (6) the cumulative effect of these errors violated his due process rights. We affirm the judgment.

I. Statement of Facts
A. Prosecution’s Case
1. Incident in the Yard on April 23, 2014 (Counts 1 and 2)
On April 23, 2014, CO Gregorio Gudino was on duty on yard B at Salinas Valley State Prison. At about 11:00 a.m., he heard the announcement of “yard down” over the radio and the PA system. This announcement was a signal to order the inmates to lie on the ground. There were about 400 inmates on the yard at that time. After the order was given, CO Gudino saw two inmates striking another inmate, who was trying to defend himself. They were punching him in the upper torso and facial area.
CO Gudino and other correctional officers approached the three inmates to stop the fight. When the inmates did not comply with their orders, CO Gudino threw an “OC grenade blast” to disperse them. The inmates continued fighting. CO Gudino saw that the inmate, identified as Perez, had an inmate-manufactured weapon in his right hand and was stabbing the victim’s lower back area. The victim, identified as Antonio Acosta, had blood on his shirt. CO Gudino believed defendant was the other aggressor. After the officers pepper-sprayed the inmates’ faces, Perez tossed the weapon about 10 to 15 feet away and laid down on the ground. CO Gudino never saw defendant throw an object. It was possible that he confused a punching motion with a stabbing motion. If defendant had a weapon, CO Gudino did not see it.
CO Mary Curiel also observed the incident. She saw two inmates making a stabbing motion toward another inmate’s “upper torso and upper face area.” One inmate never pushed or fought back. He held his arms up against his face the entire time. CO Curiel did not see an object in either of the assailants’ hands or anyone throw anything when the fight ended. After defendant and Perez were handcuffed, medical staff attended to Acosta, who was bleeding and appeared to be unconscious. Acosta was eventually taken to the hospital.
Two weapons were confiscated near the suspects. CO Marc Hernandez found an inmate-manufactured knife about one and a half to two feet from Acosta. The weapon appeared to have blood on it. CO Chris Wilson collected a six-inch long weapon which was made of melted plastic and sharpened to a point. It was found about 15 feet from defendant. No DNA or fingerprint testing of this weapon was conducted. Photographs of defendant showed no injuries on him and a suspected blood stain on his arm. Defendant also had a small laceration on his top right knuckle. There was no DNA testing of the blood on defendant’s hand.
Acosta testified that he was attacked on the prison yard, but he declined to answer questions about the assault. He denied that he knew defendant or that he had a weapon that day.
2. Incident in Defendant’s Cell on November 3, 2015
(Counts 3, 4, and 5)
Shortly after his shift began at 10:00 p.m. on November 3, 2015, CO John Thich was conducting security checks of the cells. Doors on the cells had been mechanically locked at 9:15 p.m. When CO Thich arrived at the cell occupied by defendant and Santana, he saw that the light was on. CO Thich looked through the window and saw defendant was in a straddle position on top of Santana. The inmates were about three feet from the door and their heads were pointing toward the door. Defendant was choking Santana, who was lying in a pool of blood and had blood coming out of a wound on his neck. After he ordered defendant to get off of Santana and lie on the ground, CO Thich radioed central control for medical assistance. The officer told Santana to apply pressure to his neck, but he was too disoriented to do so.
Defendant had blood on his clothing and hands and he “looked . . . like he was tired, like normally, what you would see when someone was in a fight.” He opined that the blood on defendant’s shirt was the result of Santana “putting up a fight.” Defendant had a bleeding wound on the side of his face as if he had been punched and some scratches on his head. According to CO Thich, there was not enough blood from these wounds to have contributed to the pool of blood on the floor. Defendant had some blood on his shoes, knees, and legs and “a lot” of blood on his hands.
CO Thich did not see defendant holding a towel to Santana’s neck or a blood-soaked towel inside the cell. The officer did not see any object in defendant’s hands or defendant throw an object. There was no one else in the cell with defendant and Santana and they had been alone in the cell for about an hour preceding CO Thich’s arrival.
CO Rogelio Perez responded to the call for backup. After “a few” orders, defendant submitted to handcuffs, was taken out of the cell, and was placed in the shower area to secure him. Santana was on his back on the ground and gasping for air. Santana had two or three puncture wounds on the side of his stomach and two on his neck. The wounds on his side and the wound on the back of his neck were actively bleeding, but the wound on the side of his neck was not. CO Perez used paper towels to apply pressure to Santana’s neck to stop the bleeding.
Barbara Ann Dillon testified that she had been a registered nurse for 41 years and a chiropractor for 34 years. She was currently employed in the emergency room at Salinas Valley State Prison. She had been working at the prison for five years. Her experience also included work in other hospital trauma centers and emergency rooms. She had treated more than 100 inmates for wounds caused by inmate-manufactured weapons. Most of the time she can determine whether the wound was caused by a dirk or by a slicing weapon like a knife. She explained that puncture wounds are caused by a dirk or ice pick while broader wounds are caused by a knife.
Dillon was on duty on November 3, 2015. She evaluated defendant after the incident in his cell. She noted that he had dried blood on his face, both sides of his arms, and the front of his legs. Defendant did not have any wounds that would have contributed to the blood on his face and shirt. Dillon helped contain Santana’s bleeding, started an IV, and placed a cervical collar on him. Santana was taken to a hospital for further treatment.
Dillon was asked to render her opinion about Santana’s wounds as shown in photographs. She based her opinion on her observations and experience. One of Santana’s wounds was on the left side of his ribs where his lung and heart are located. Santana had one puncture wound and some other wounds, but Dillon could not determine if they were caused by a knife-type weapon or a dirk. She explained that stabbing with a narrow knife could cause a puncture wound. She testified that one would need to examine the wound to determine its depth. There also appeared to be a knife cut around the throat. According to Dillon, this type of wound could be critical due to the danger of puncturing the trachea, which could result in the victim choking to death on blood.
Dillon was asked to interpret the medical report concerning Santana’s injuries. Based on this report, the neck wound was deep and nearly hit the carotid artery. She could not determine from the photographs the angle or depth of the neck wound and she stated that only the examining physician could do so. Dillon testified that the report indicated that the jugular vein in Santana’s neck was cut. She stated that this type of cut could lead a person to bleed to death if he did not receive medical attention. She also stated that the vagus nerve, which is close to the carotid artery, was cut. Dillon opined that if the carotid artery was cut, the person would bleed to death in 20 to 30 minutes, depending on the nature of the wound.
CO Steven Newcomb took photos of Santana at the hospital. Santana appeared to have a puncture wound on the side of his body and a slice wound on the left side of his neck. Santana had a puncture-type wound on his chest and appeared to have a defensive wound on his index finger. There were also three puncture wounds on the left side of his body. He did not document any wounds on Santana’s head. According to CO Newcomb, it appeared that two different types of weapons were used.
CO Joshua Peffley from the Investigative Service Unit (ISU) investigated the incident the following day. He explained that after defendant and Santana had been removed from the cell the previous night, a “boot lock” was placed on the cell. Only ISU staff could unlock this type of lock. When CO Peffley unlocked the cell, he observed a large puddle of blood that was approximately 12 inches by 12 inches. There was blood splatter on a curtain, a fan, a pair of prescription glasses, and on the toilet. There was also a towel “saturated with blood” and a bloody piece of dental floss. Based on dozens of in-cell attack investigations, CO Peffley stated that the amount of blood was greater than normal.
COs Peffley and Salgado spent three hours in the cell. After photographing the evidence, they searched the cell, which measured 12 feet by eight feet. They searched the shelving units, the mattresses, and the floor, but they did not find anything that appeared to be a weapon.
The next day, CO Peffley was notified that another officer had found a weapon in defendant’s cell when he went to retrieve defendant’s property. CO Peffley returned to the cell and he immediately saw an inmate-manufactured weapon under the lower bunk bed. The weapon appeared to be “steel on the top, sharpened to a point, with melted plastic wrapped around the bottom acting as a handle portion.” The blade, which had blood on it, was approximately three inches long. According to CO Peffley, the blade appeared to be sharpened to “slice something” and the point of the weapon could “puncture something.” He also thought the weapon was “capable of killing somebody.”
CO Peffley had no idea how the knife got in the cell. He noted that there was sufficient room under the cell door to slide an item like the weapon. According to CO Peffley, inmates commonly slide items under the door. They refer to the practice as “fishing.” They use string to tie items, such as narcotics, weapons, phones, and notes, which are then sent back and forth between cells. An inmate could also get rid of a weapon by tossing it on the floor and kicking it under the cell door. The space under the cell door was no more than one half inch. Though neither defendant nor other inmates had access to the inside of the cell after CO Peffley had searched it the previous day, dining workers and other inmates released to the yard could have thrown an item under the cell door. CO Peffley believed that another inmate had access to the weapon that was used to attack Santana. His theory was that defendant used the knife to stab Santana and slid it under the cell door into the day room. The following morning another inmate picked it up and slid it back into defendant’s cell.
3. Incident Involving Weapons in the Bibles
on November 17, 2015 (Count 6)
CO Daryl Schlitz worked in the administrative segregation (ad-seg) unit at Salinas Valley State Prison. The ad-seg unit houses inmates who have been accused of a crime or who need to be segregated from the general population for safety reasons. CO Schlitz characterized the ad-seg unit as a mini prison within the prison. When an inmate is admitted to the ad-seg unit, his personal property is searched.
On November 17, 2015, defendant was transferred from one ad-seg unit to the ad seg unit staffed by CO Schlitz. According to prison safety procedures, after defendant was “strip-search[ed],” CO Schlitz searched his personal property, including two Bibles. CO Schlitz used a metal detector to search the Bibles because weapons are easily hidden inside the bindings or the back part of a book. After the metal detector sounded, CO Schlitz looked inside the binding, saw a weapon pointed upwards, and pulled out the weapon. CO Schlitz checked the other Bible and found another weapon. Both weapons appeared to be made of stainless steel. The first weapon was approximately eight inches long and the second was five inches long.
While CO Schlitz was searching defendant’s Bibles, defendant was in a holding cell directly in front of him. After CO Schlitz found the second weapon, he said in a “kind of joking . . . [and] spontaneous” manner, “ ‘Hey, how many of these things you got? How many weapons have you got?’ ” Defendant replied, “ ‘Just the two.’ ”
According to CO Schlitz, inmates are allowed to have certain items in their cells. Large items, such as a television, are noted on the inmate’s property card, but smaller items, such as books and personal paperwork, are not always included. Inmates know that they and their personal property will be searched when they enter the ad-seg unit. However, as CO Schlitz explained, inmates are searched all the time, but they still try and smuggle weapons. CO Schlitz did not advise defendant of his Miranda rights prior to questioning him about the weapons.

B. Defense Case
1. Incident in the Yard on April 23, 2014 (Counts 1 and 2)
Defendant testified that he was walking by himself on the track on April 23, 2014, when a fight broke out next to him. While Perez and Acosta were fighting, he was also attacked. Defendant did not see any objects in their hands and he did not have a weapon. Defendant fought back because he was being hit. The fight happened very quickly. Defendant heard the order to lie down, but he did not comply immediately because he was being attacked. When the COs used the pepper spray, the incident ended. Defendant could not explain how Acosta was stabbed. He had no explanation for why the weapons were near him.
2. Incident in Defendant’s Cell on November 3, 2015
(Counts 3, 4, and 5)
Defendant testified that on November 3, 2015, Santana returned to the cell at around 9:00 p.m. after making a phone call. At that time, Santana had blood on the front of his shirt. Defendant tried to see what had happened to him, but Santana would not allow him to do so. Santana backed away from defendant when defendant tried to move his hand to see where the blood was coming from. Santana stood there bleeding for a few minutes and then fell to the floor. Defendant tried to move Santana, but Santana pushed him away. Since there was a lot of blood, defendant grabbed a towel and put it around Santana’s neck to stop the bleeding. Defendant was stooped over Santana and Santana was between his legs. They remained in this position until the officers arrived.
Defendant denied that he stabbed Santana. He also denied ever seeing the weapon found in his cell the next day. Defendant and Santana had been cellmates for two or three months and they never had any arguments or fights.
On cross-examination, defendant stated that he did not call for help. He explained, “I’m trying to understand and trying to know what’s going on before I do anything. And if he dies, well, he dies. I’m also going to die one day.” He denied choking Santana. Defendant also denied getting rid of the knife by sliding it under the cell door.



3. Incident Involving Weapons in the Bibles
on November 17, 2015 (Count 6)
Defendant testified that he was moved from one ad-seg building to another, which is a distance of about half a mile, on November 17, 2015. He was handcuffed and was not carrying his personal property. He did not have access to his property for a couple of hours. When defendant was moved from the cell with Santana, an inventory listed the property that he had at that time. Defendant stated that he did not acquire any property from the time he was moved from his cell to the ag-seg unit. Defendant noted that the inventory had a “religious materials” section that could be checked off and a section for “other” items. The inventory of his property did not show that he had two Bibles in the religious materials section. Defendant denied having two Bibles and he denied ever possessing the objects found in the Bibles. He never admitted to a CO that he had the two weapons.
On cross-examination, defendant acknowledged that the “books” section was checked off on the inventory of his personal property. When defendant was asked whether Bibles would be included in the “books” section, defendant responded that “[n]o one confuses a Bible with a book.” According to defendant, religious items are given special preference in prison and would not be included in the “books” section.
Defendant acknowledged that he had previously been convicted of one count of assault with a deadly weapon, three counts of assault with a firearm, one count of assault likely to cause great bodily injury, and one count of negligent discharge of a firearm.





II. Discussion
A. Motion to Consolidate
Defendant contends that the trial court erred when it granted the prosecutor’s motion to consolidate the cases involving the incident in the yard in 2014 and the incident in the cell in 2015.
Section 954 states in relevant part that “[a]n accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offense, under separate counts, . . . provided, that the court in which a case is triable, in the interests of justice and for good cause shown” may exercise its discretion to sever the properly joined offenses. “Joinder is ordinarily favored because it avoids the increased expenditures of funds and judicial resources that may result from separate trials. [Citation.] Joinder, therefore, ‘is the course of action preferred by the law.’ [Citation.]” (People v. Simon (2016) 1 Cal.5th 98, 122 (Simon).)
When “the statutory requirements for joinder are met, a defendant must make a ‘clear showing of prejudice’ to establish that the trial court abused its discretion in denying the motion. [Citation.]” (Simon, supra, 1 Cal.5th at pp. 122-123, fn. omitted.) “We analyze severance questions by considering a case’s specific facts. Whether a trial court abused its discretion in denying severance depends, thus, on the particular circumstances of each case. [Citation.] The factors we consider are as follows: (1) whether the evidence relating to the various charges would be cross-admissible in separate trials, (2) whether any of the charges are unusually likely to inflame the jury against the defendant, (3) whether a weak case has been joined with a strong case or with another weak case, and (4) whether one of the charges is a capital offense or the joinder of the charges converts the matter into a capital case. [Citation.]” (Id. at p. 123.)
Here, the statutory requirement for joinder has been met, because the offenses in both cases were in the same class. Both the 2014 incident and the 2015 incident involved custodial possession of a weapon (counts 1 and 5) and assault by a prisoner (counts 2 and 4).
We next consider whether defendant has shown prejudice. (Simon, supra, 1 Cal.5th at pp. 122-123.) As to the first factor, the Attorney General correctly concedes that the two cases were not cross-admissible, since the facts and evidence in the 2014 incident were unrelated to the facts and evidence in the 2015 incident. But the absence of cross-admissibility does not require severance. (People v. Manriquez (2005) 37 Cal.4th 547, 575 (Manriquez).)
Regarding the second factor, defendant argues that “[t]he evidence of the assault on Acosta with a deadly weapon was particularly inflammatory because it would lead the jury to infer improperly that [he] had a violent disposition, and would significantly undercut his defense that he didn’t stab Santana, but was trying to stop his bleeding.” We disagree. Both cases involved extremely serious assaults by means of inmate-manufactured weapons and resulted in life-threatening injuries to both victims. Thus, neither incident was more inflammatory than the other. (See Manriquez, supra, 37 Cal.4th at pp. 572, 575 [joinder of four murders which occurred on four separate dates during a year was not prejudicial].)
Defendant next argues that the third factor, that is, whether a weak case was joined with a strong case, favored severance. We reject this argument. In the 2014 case, several witnesses saw defendant and Perez attacking Acosta and two stabbing weapons were found near the scene. A witness saw Perez throwing a weapon. Based on this evidence, defendant was convicted of assault as an aider and abettor. In the 2015 case, defendant and Santana had been alone in the cell for about an hour when a witness saw defendant choking Santana, who was bleeding from a wound in his neck. As the Attorney General points out, there were evidentiary gaps in both cases regarding the weapons. The evidence failed to establish whether defendant personally used a weapon in the 2014 case. The evidence also failed to establish how a weapon appeared in defendant’s cell a day after the assault. Thus, since neither case was stronger than the other, there was no danger that the jury would use evidence from one case to strengthen the prosecutor’s case as to the other.
Based on this record, we conclude that the trial court did not abuse its discretion when it granted the prosecutor’s motion to consolidate the cases.

B. Sufficiency of the Evidence
Defendant next contends that the evidence is insufficient to support his convictions for assault by a state prisoner (count 3), attempted murder (count 4), and custodial possession of a weapon (count 5).
“Where, as here, a defendant challenges the sufficiency of the evidence on appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] A reviewing court must reverse a conviction where the record provides no discernible support for the verdict even when viewed in the light most favorable to the judgment below. [Citation.] Nonetheless, it is the jury, not the reviewing court, that must weigh the evidence, resolve conflicting inferences, and determine whether the prosecution established guilt beyond a reasonable doubt. [Citation.] And if the circumstances reasonably justify the trier of fact’s findings, the reviewing court’s view that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment. [Citation.]” (People v. Hubbard (2016) 63 Cal.4th 378, 392 (Hubbard).)
Here, defendant and Santana were the only inmates locked into the cell at 9:15 p.m. About an hour later, CO Thich saw that defendant was straddling Santana and choking him. Defendant was not trying to assist Santana, who was lying in a pool of blood, and defendant did not have a towel in his hands. After defendant was ordered off Santana, Santana was gasping for air. There was a wound on Santana’s neck that was actively bleeding. Santana also had another wound on his neck, wounds on the left side of his body, and a defensive wound on his hand. There was a large pool of blood in the cell and blood splatter on a curtain, a fan, a pair of glasses, and the toilet. Defendant, who appeared to have been in a fight, had a significant amount of blood on his hands and knees but no corresponding injuries. Given the length of time that defendant and Santana were alone together in the cell, Santana’s extensive injuries, Santana’s blood throughout the cell, and the officers’ observations of defendant’s conduct, there was extremely strong circumstantial evidence that defendant had choked Santana and inflicted the wounds on Santana that were caused by a sharpened instrument.
Defendant contends, however, that the prosecutor presented only evidence that defendant had an opportunity to commit the assault and the attempted murder. He further contends that the prosecutor failed to present evidence of motive or the weapon used to inflict Santana’s injuries. We first note that the prosecutor is not required to prove motive, since it is not an element of the crime of attempted murder (People v. Houston (2012) 54 Cal.4th 1186, 1218), assault (see People v. McDaniel (2008) 159 Cal.App.4th 736, 749), or custodial possession of a weapon (see People v. Strunk (1995) 31 Cal.App.4th 265, 271-272). Nor is the prosecutor required to produce evidence of the particular weapon used by the perpetrator. Moreover, it is not our role to reweigh or draw contrary inferences from the evidence. (Hubbard, supra, 63 Cal.4th at p. 392.) Accordingly, we reject these contentions.
In sum, there was substantial evidence to support defendant’s convictions for assault by a state prisoner, attempted murder, and custodial possession of a weapon.

C. Admissibility of Defendant’s Statements Regarding Weapons
Defendant contends that he was in custody when he was questioned by CO Schlitz and was not advised of his rights under Miranda. Thus, he contends that the admission of his statement violated his Fifth, Sixth, and Fourteenth Amendment rights.
1. Background
Prior to CO Schlitz’s testimony, defense counsel objected to the admission of defendant’s statement to CO Schlitz that the weapons in the Bibles belonged to him. He argued that since defendant was in custody during the questioning, Miranda advisements were required. The prosecutor responded that the officer’s questions were rhetorical and not intended to elicit an incriminating response. The trial court ruled that defendant’s statement was admissible.
Here, defendant was being transferred from one ad-seg unit to another ad-seg unit. Pursuant to prison safety procedures, after defendant was “strip-search[ed],” he was placed in a holding cell in front of CO Schlitz. CO Schlitz then searched defendant’s personal property and found two knives in his Bibles. CO Schlitz said in “kind of joking . . . [and] spontaneous” manner, “ ‘Hey, how many of these things you got? How many weapons have you got?’ ” Defendant replied, “ ‘Just the two.’ ”
2. Analysis
“ ‘In reviewing constitutional claims of this nature, it is well established that we accept the trial court’s resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained.’ [Citation.]” (People v. Thomas (2011) 51 Cal.4th 449, 476.)
“Before a suspect may be subjected to a custodial interrogation, he must be advised that he has the right to remain silent, that his statements can be used against him and that he has a right to consult with or have an attorney present. [Citations.] In Mathis v. United States (1968) 391 U.S. 1, 4-5 . . . , the federal high court extended these safeguards to prison inmates.” (People v. Fradiue (2000) 80 Cal.App.4th 15, 19 (Fradiue).) Lower courts have created an exception to Mathis “where the interrogation is conducted under circumstances where no restraint is placed upon the inmate over and above that associated with his prisoner status.” (Fradiue, at p. 19.)
For example, in Cervantes v. Walker (9th Cir. 1978) 589 F.2d 424 (Cervantes), the defendant was incarcerated in county jail when a deputy decided to move him to another cell. (Id. at p. 426.) The defendant was directed to collect his personal property and he was then escorted to the jail library where he left his property on a table outside the library and entered the library. Pursuant to standard jail procedures when moving inmates, a deputy searched the defendant’s property and found a matchbox containing a substance that he suspected was marijuana. (Id. at pp. 426-427.) The deputy entered the library, showed the contents of the matchbox to the defendant, and asked, “ ‘What’s this?’ ” (Id. at p. 427.) The defendant answered, “ ‘That’s grass, man.’ ” (Ibid.) The Cervantes court rejected the defendant’s argument that Mathis requires Miranda warnings in all prison interrogations: “To interpret Mathis as Cervantes urges would, in effect, create a per se rule that any investigatory questioning inside a prison requires Miranda warnings. Such a rule could totally disrupt prison administration. Miranda certainly does not dictate such a consequence.” (Cervantes, at p. 427.)
As the Fradiue court explained, “[i]n formulating an appropriate test in a prison setting, the [Cervantes] court recognized that the usual test of whether a reasonable person would have believed he was free to leave ceases to be useful. [Citation.] Obviously, the inmate is not free to leave. The question must therefore shift to whether some extra degree of restraint was imposed upon the inmate to force him to participate in the interrogation. Four factors are significant in this inquiry: (1) the language used to summon the inmate for questioning, (2) the physical surroundings of the interrogation, (3) the extent to which the inmate is confronted with evidence of his guilt, and (4) the additional pressure exerted to detain him.” (Fradiue, supra, 80 Cal.App.4th at p. 20, citing Cervantes, supra, 589 F.2d at p. 428.)
The Cervantes test has been adopted by California courts. (People v. Macklem (2007) 149 Cal.App.4th 674, 687, 695-696; Fradiue, supra, 80 Cal.App.4th at pp. 20-21; People v. Anthony (1986) 185 Cal.App.3d 1114, 1122.)
“ ‘To determine whether prison officials have applied an additional restraint, further restricting an inmate’s freedom and triggering Miranda warnings, courts must consider the totality of the circumstances surrounding the alleged interrogation.’ [Citation.]” (Fradiue, supra, 80 Cal.App.4th at p. 21.)
As to the first Cervantes factor, defendant argues that the questioning in the present case did not occur at his usual cell and he was directed to go to the ad-seg unit. The record does not support his argument. He was not summoned for questioning, but was being transferred from one ad-seg unit to another. This transfer necessitated a routine body and property search prior to entering the second ad-seg unit. Under these circumstances, his encounter with CO Schlitz was merely incidental to ongoing prison activities.
Defendant argues that the second Cervantes factor supports a finding that he was in custody, because the physical surroundings of the interrogation were a “marked change” from his “usual surroundings.” He points out that he was escorted while handcuffed, stripped nude, and searched prior to being placed in a cell. However, the restrictions on defendant’s freedom of movement were no greater than the usual security measures for ad-seg inmates who were being transferred to another ad-seg unit. Since they were no more restrictive than the surroundings that defendant would have ordinarily experienced in prison, this factor also supports a finding that he was not in custody for Miranda purposes.
Under the third Cervantes factor, this court considers the extent to which defendant was confronted with evidence of his guilt. After CO Schlitz removed the weapons from the Bibles, he asked defendant in a joking and spontaneous manner, “ ‘Hey, how many of these things you got? How many weapons have you got?’ ” Thus, though defendant observed the evidence of his guilt, the officer’s rhetorical questions were neither coercive nor hostile.
As to the final Cervantes factor, no additional pressure was exerted to detain defendant other than that associated with a transfer from one ad-seg unit to another.
Based on the totality of the circumstances, we conclude that no Miranda warnings were required during the search of defendant’s property incident to his transfer from one ad-seg unit to another. Accordingly, the trial court did not err when it admitted defendant’s statement.
Defendant’s reliance on People v. Elizalde (2015) 61 Cal.4th 523 (Elizalde) is misplaced. In Elizalde, the California Supreme Court held that any questions about gang affiliation when a defendant is booked into jail constitute custodial interrogation for Miranda purposes. (Elizalde, at pp. 527, 530-540.) Defendant claims that “this case presents the prison equivalent of the ‘booking process,’ where a person is admitted into a jail or prison.” Not so. Here, defendant was being transferred from one ad-seg unit to another.
D. Admissibility of Expert Testimony
Defendant contends that the trial court erred when it admitted the expert testimony of Dillon.
1. Background
Dillon testified regarding her experience in the medical profession. After she began testifying regarding her evaluation of defendant, defense counsel objected and requested a sidebar. When the examination of Dillon resumed, the prosecutor asked her to explain some medical terminology in the treating physician’s report, which she did. However, she was unable to state whether this terminology described Santana’s injury as depicted in an exhibit and explained that only the treating physician could do so. Dillon also testified that if a person’s jugular vein or carotid artery was cut, the person would bleed to death without medical attention. When asked how long it would take a person to bleed out if the carotid artery was cut, she opined, “Twenty minutes, half-hour. It depends.” She also agreed that this opinion was “a real, real general guess,” because it would depend on whether the wound was a nick or a slice. Dillon further testified that she was unable to testify regarding the depth of Santana’s wounds and that her testimony on the nature of Santana’s wounds was based on her experience.
After Dillon had testified and outside the presence of the jury, the parties summarized their statements at the sidebar after defense counsel had objected. Defense counsel stated that he had objected to Dillon’s testimony, because the defense was not “given a CV of her expertise, as education and training. We didn’t get a report as to what her suspected testimony might be so we objected to her -- any questioning outside of the actual 7219 [medical report] that we were given in discovery.” The prosecutor summarized his efforts to obtain an expert witness. He had notified the defense that Dr. Kim Kumar would testify as an expert witness concerning the nature of Santana’s injuries. The day before Dr. Kumar was scheduled to testify, Dr. Kumar notified the prosecutor that she would be unable to testify due to a family emergency. The prosecutor then contacted the surgeon who had treated Santana, but he was also unavailable. The prosecutor requested a one-day continuance, which was denied. The trial court stated that it had allowed Dillon to testify, because her testimony was very limited and the defense had notice of the medical subject that would be covered.
2. Analysis
Evidence Code section 720, subdivision (a) provides that “[a] person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.” Expert testimony is appropriate on subjects that are “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (Evid. Code, § 801, subd. (a).)
“ ‘The trial court’s determination of whether a witness qualifies as an expert is a matter of discretion and will not be disturbed absent a showing of manifest abuse. [Citation.] “ ‘Where a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes more to the weight of the evidence than to its admissibility.’ ” [Citation.]’ [Citation.]” (People v. Nelson (2016) 1 Cal.5th 513, 536.)
Defendant argues that the trial court failed to exercise its discretion in qualifying Dillon as an expert witness. He also argues that even assuming the trial court exercised its discretion, it abused its discretion. He asserts Dillon lacked the qualifications to render an expert opinion on the nature and severity of Santana’s neck wounds and the time it would take to die from certain wounds. However, defendant did not object to Dillon’s lack of qualifications to testify as an expert, as Evidence Code section 720 expressly requires. Instead, he objected to the lack of notice that she would be testifying. Thus, he has forfeited these issues. (Evid. Code, § 353; People v. Farnam (2002) 28 Cal.4th 107, 162 (Farnam).)
Even if defendant had objected to Dillon’s qualifications to testify as an expert, the trial court would not have abused its discretion in qualifying her as an expert witness. “Error regarding a witness’s qualifications as an expert will be found only if the evidence shows that the witness ‘ “ ‘clearly lacks qualification as an expert.’ ” ’ [Citation.]” (Farnam, supra, 28 Cal.4th at p. 162.) Here, Dillon testified that she had worked as a registered nurse for 41 years, as a chiropractor for 34 years, and as a nurse at the prison for the past five years. Her past medical experience also included working in trauma centers and emergency rooms. More importantly, Dillon had treated more than 100 inmates for wounds caused by inmate-manufactured weapons. Thus, defendant has failed to establish that Dillon clearly lacked the qualifications to testify as an expert regarding the nature and severity of Santana’s injuries, her interpretation of language in the medical report describing the injuries, and her opinion of the effects of certain types of injuries.
Defendant next contends the trial court erred when it failed to instruct the jury on expert testimony pursuant to CALCRIM No. 332.
CALCRIM No. 332 provides in relevant part: “(A witness was . . .) allowed to testify as [an] expert[] and to give . . . opinion[s]. You must consider the opinion[s], but you are not required to accept [them] as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert’s knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence.”
When a witness testifies as an expert, the trial court has a sua sponte duty to instruct the jury on the weight to be given expert testimony. (§ 1127b; People v. Mateo (2016) 243 Cal.App.4th 1063, 1072.) “ ‘[T]he erroneous failure to instruct the jury regarding the weight of expert testimony is not prejudicial unless the reviewing court, upon an examination of the entire cause, determines that the jury might have rendered a different verdict had the omitted instruction been given. [Citations.]’ ” (People v. Lynch (1971) 14 Cal.App.3d 602, 610.)
Here, though the prosecutor did not offer Dillon as an expert witness, Dillon testified regarding her medical training and experience. Based on these qualifications, she testified regarding Santana’s injuries, the interpretation of a medical report, and her opinion as to the effects of certain injuries. Thus, the trial court erred when it failed to instruct the jury pursuant to CALCRIM No. 332.
However, the jury would not have rendered a different verdict had the trial court given the omitted instruction. The trial court did not identify Dillon as an expert witness and her training and experience were briefly summarized. Accordingly, an instruction that would have focused the jury’s attention on her qualifications and “the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion” would have provided little assistance to the jury. Moreover, the trial court instructed the jury pursuant to CALCRIM No. 333 regarding the weight it must give any opinion testimony, that it must consider the believability of the witness, that it must consider the opportunity of the witness to perceive the matters that formed the basis of the opinion, and the reasons for the opinion. The trial court also instructed the jury that it was not required to accept any opinion and must decide what weight, if any, to give the opinion. In addition, the trial court instructed the jurors pursuant to CALCRIM No. 226, which told them that they were the sole judges of “the credibility or believability of the witnesses,” that the testimony of each witness must be judged by the “same standards,” and that they were to “[c]onsider the testimony of each witness and decide how much of it you believe.” We presume the jury understood and followed the instructions the trial court gave pursuant to CALCRIM Nos. 333 and 226. (See People v. Butler (2009) 46 Cal.4th 847, 873.) Thus, the trial court’s failure to instruct pursuant to CALCRIM No. 332 was not prejudicial.

E. Prosecutorial Misconduct
Defendant also contends that the prosecutor committed multiple acts of misconduct.
“ ‘ “The applicable federal and state standards regarding prosecutorial misconduct are well established. ‘ “A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’ ” ’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘ “ ‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’ ” ’ ” ’ [Citation.]” (People v. Gray (2005) 37 Cal.4th 168, 215-216.) “A prosecutor is given wide latitude to vigorously argue his or her case and to make fair comment upon the evidence, including reasonable inferences or deductions that may be drawn from the evidence. [Citation.]” (People v. Ledesma (2006) 39 Cal.4th 641, 726.) “When the issue ‘focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.’ [Citations.]” (People v. Cole (2004) 33 Cal.4th 1158, 1202-1203.) “ ‘In conducting this inquiry, we “do not lightly infer” that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements. [Citation.]’ [Citation.]” (People v. Brown (2003) 31 Cal.4th 518, 553-554.)
In order to preserve a claim of prosecutorial misconduct on appeal, “ ‘ “a defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the improper argument.” ’ [Citation.]” (People v. Mendoza (2016) 62 Cal.4th 856, 905.) Defendant acknowledges that trial counsel failed to make timely objections. Thus, he contends that trial counsel’s failure to object to these alleged instances of misconduct denied him the effective assistance of counsel.
To prevail on an ineffective assistance of counsel claim, a defendant must show that trial counsel’s performance was deficient and that “ ‘counsel’s deficiencies resulted in prejudice, that is, a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” [Citation.]’ [Citation.]” (People v. Lopez (2008) 42 Cal.4th 960, 966.)
“ ‘In determining whether counsel’s performance was deficient, a court must in general exercise deferential scrutiny . . .’ and must ‘view and assess the reasonableness of counsel’s acts or omissions . . . under the circumstances as they stood at the time that counsel acted or failed to act.’ [Citation.] Although deference is not abdication [citation], courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight.” (People v. Scott (1997) 15 Cal.4th 1188, 1212.) “[T]here is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ [Citation.]” (People v. Lucas (1995) 12 Cal.4th 415, 437.) The failure of counsel to object to evidence or statements made by the prosecutor during argument is seldom a successful basis for reversal of a conviction on ineffective assistance grounds. (People v. Centeno (2014) 60 Cal.4th 659, 675.) This court must reject a claim of ineffective assistance of counsel “if the record sheds no light on why counsel acted or failed to act in the manner challenged unless (1) counsel was asked for and failed to provide a satisfactory explanation or (2) there simply could be no satisfactory explanation. [Citation].” (People v. Burgener (2003) 29 Cal.4th 833, 880.)
1. Challenges to Defendant’s Credibility
Defendant argues that the prosecutor committed misconduct when he accused defendant of lying on the stand and offered his personal opinion to the jury that defendant is the type of person who would lie on the stand.
CO Thich testified that he saw defendant straddling Santana and choking him. The officer did not see a towel in defendant’s hands. A photograph of a bloody towel was admitted into evidence. Defendant testified that he used the towel to try to stop Santana’s bleeding. On cross-examination, the prosecutor asked defendant, “That towel that you saw . . . in the photo, and you’re just using that as . . . making the stuff up about you using the towel; isn’t that correct?”
During closing argument, the prosecutor stated: “We toss softballs to see if they’ll lie about the small stuff. Blood on Acosta’s shorts. And his response was, ‘I don’t know what that is. I don’t know if it’s blood.’ I said, ‘What about those stab wounds to Acosta on the yard?’ And he said, ‘Looked like scratches.’ . . . [I]f somebody is not true in their testimony about something small that really doesn’t matter, then, why are they going to tell the truth about things that are really big, like, did you cut this guy’s neck? Of course they’re not going to tell you the truth. There’s bias to lie.” The prosecutor also argued that “the things [defendant] can’t explain, he just denies they happened.”
“ ‘A prosecutor may comment upon the credibility of witnesses based on facts contained in the record, and any reasonable inferences that can be drawn from them, but may not vouch for the credibility of a witness based on personal belief or by referring to evidence outside the record’ [Citation.]” (People v. Peoples (2016) 62 Cal.4th 718, 796.)
Here, there was nothing improper in the prosecutor’s question to defendant or his argument to the jury. Given the evidence that defendant and Santana were alone in the cell for almost an hour, the presence of Santana’s blood throughout the cell, Santana’s extensive injuries, and CO Thich’s observations of defendant’s conduct, it could reasonably be inferred that defendant’s testimony was not credible. Thus, the prosecutor’s question challenging defendant’s credibility was based on the facts in the record. As to the prosecutor’s argument, he was urging the jury to determine whether defendant was credible as to certain portions of his testimony and thus determine whether he was credible as to the central issues in the case. The prosecutor did not base either the question or his argument on facts outside the record or his personal belief. Since there was no misconduct, trial counsel was not ineffective when he did not object to either the question or this portion of the prosecutor’s argument.
Defendant also contends that the prosecutor committed misconduct when he “expressed his personal opinion that prison inmates are not credible . . . .”
Here, the prosecutor referred to defendant’s six prior felony convictions and further argued: “And the reason we tell you about that is not to say anything to do with whether he’s a bad person. It’s for the truth. Think about people who have been convicted of felonies. Are they people that you’re likely to trust, or are they people that are going to tell you the truth? That’s something for you to decide. I’m not saying, automatically, people who are felons are going to lie to you about things, but if they’re committing ‘crimes of moral turpitude,’ we call it, that do wrong, then lying seems to be in the scheme of things, probably pretty light. . . . [I]f you’re using semi-automatic weapons to assault people, lying about something, that’s . . . almost like a walk in the park.” The prosecutor later argued that “these are people who commit crimes to get into prison, so they’re not the most honest people in the world.”
To the extent that the prosecutor expressed his personal opinion when he argued that all inmates are not trustworthy or honest, he committed misconduct. But trial counsel could have made a reasonable tactical decision not to object. “ ‘Past criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness in a criminal proceeding is admissible to impeach . . . .’ [Citation.]” (People v. Smith (2007) 40 Cal.4th 483, 512.) Trial counsel could have reasonably concluded that an objection would have prompted the prosecutor to focus more on defendant’s prior convictions to impeach his credibility. Thus, defendant’s ineffective assistance claim is unavailing.
2. Questions Asking Defendant to Comment on Truthfulness of COs
Defendant next contends that the prosecutor improperly asked him on cross-examination to comment on the truthfulness of the COs who testified.
On cross-examination, the prosecutor asked defendant if he had “[a]ny problem with” CO Thich. After referencing CO Thich’s testimony which contradicted defendant’s testimony, the prosecutor asked defendant, “So can you think of any reason why he would come in and make that up?”
Later, the prosecutor asked defendant if he had any problems with CO Schlitz. Defendant responded that he did not and that he respected every CO. The prosecutor then asked, “Well, is it respecting an officer to come in and basically say that he lied about what he said?” Defendant answered, “It would be a lack of respect.” The prosecutor stated that CO Schlitz testified that defendant admitted to owning the two knives found in the Bibles. Defendant agreed that this was CO Schlitz’s testimony, but denied saying it. The prosecutor asked, “So you’re saying that he’s lying in here, and you’ve never said that.” Defendant replied, “Yes.”
During closing argument, the prosecutor argued, “And [defendant] gets up and, you know, calls the corrections officers liars; tells you how they’re planting evidence, not telling the truth.”
“[C]ourts should carefully scrutinize [a prosecutor’s] ‘were they lying’ questions in context. They should not be permitted when argumentative, or when designed to elicit testimony that is irrelevant or speculative. However, in its discretion, a court may permit such questions if the witness to whom they are addressed has personal knowledge that allows him to provide competent testimony that may legitimately assist the trier of fact in resolving credibility questions.” (People v. Chatman (2006) 38 Cal.4th 344, 384 (Chatman).) The Chatman court also stated that “[a] defendant who is a percipient witness to the events at issue has personal knowledge whether other witnesses who describe those events are testifying truthfully and accurately. As a result, he might also be able to provide insight on whether witnesses whose testimony differs from his own are intentionally lying or are merely mistaken.” (Id. at p. 382.)
Here, defendant testified as a percipient witness and had personal knowledge of the events in the cell when CO Thich made his observations. He also had personal knowledge of whether he made a statement after CO Schlitz found the weapons in his Bibles. Since defendant’s testimony was in conflict with that of the COs, the prosecutor properly sought to give him the opportunity to explain whether the COs were “intentionally lying or [were] merely mistaken.” (Chatman, supra, 38 Cal.4th at p. 382.) Thus, trial counsel was not incompetent for failing to object to the prosecutor’s questions and argument.
Defendant argues that the present case is distinguishable from Chatman. He asserts that, unlike in Chatman, he did not accuse the witnesses of lying on direct and there was no evidence that he knew the witnesses well enough to offer relevant testimony on their credibility. We do not read Chatman’s holding so narrowly. People v. Tafoya (2007) 42 Cal.4th 147 (Tafoya) provides support for our interpretation. In Tafoya, the court considered whether the prosecutor committed misconduct by cross-examining the defendant as to whether the codefendant and an eyewitness lied when they testified. (Id. at p. 177.) Relying on Chatman, the Tafoya court reasoned: “[B]y choosing to testify, defendant put his own veracity in issue. . . . The prosecution’s questions allowed defendant to clarify his position and to explain why codefendant Wynglarz or eyewitness Gattenby might have a reason to testify falsely. The jury properly could consider any such reason defendant provided; if defendant had no explanation, the jury could consider that fact in determining whether to credit defendant’s testimony. (People v. Chatman, supra, 38 Cal.4th at p. 383.) Thus, the prosecution's questions in this case ‘sought to elicit testimony that would properly assist the trier of fact in ascertaining whom to believe.’ (Ibid.) There was no prosecutorial misconduct.” (Tafoya, at p. 179.) In Tafoya, as in the present case, the defendant did not accuse the witnesses of lying on direct and there was no evidence that he knew the eyewitness.
3. Statements Vouching for COs’ Credibility
Defendant also argues that the prosecutor’s statement to the jury that COs would not lie and risk their careers and that COs are inherently more trustworthy than prison inmates constituted misconduct.
The prosecutor argued that CO Schlitz “has no animosity, no reason that we know to make anything up. In 23 years on the job, why?” He later argued, “Credibility of witnesses, whether to believe the witness or not, that’s for the jury to determine. You’re the final judges of who is telling you truth, who has a bias, and what story makes sense. [¶] Officers with many years experience versus a defendant with six felony convictions.” He also argued, “[T]hese are people who commit crimes to get into prison, so they’re not the most honest people in the world. So you turn around, and you throw down a bunch of corrections officers, who are just trying to do their jobs, trying to keep us safe from people like that.” The prosecutor stated that it was “disrespectful” to accuse COs of “planting evidence and lying.”
“ ‘A prosecutor may make “assurances regarding the apparent honesty or reliability of” a witness “based on the ‘facts of [the] record and the inferences reasonably drawn therefrom.’ ” [Citation.] But a “prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record.” [Citation.]’ [Citation.]” (People v. Redd (2010) 48 Cal.4th 691, 740 (Redd).)
Here, CO Schlitz testified he had worked as a correctional officer for 23 years and defendant testified that he did not know CO Schlitz. The prosecutor then argued that CO Schlitz was credible because he would not jeopardize his career by lying and he had no motive to lie about defendant’s conduct. Thus, the prosecutor’s argument regarding CO Schlitz’s credibility was based on the evidence and reasonable inferences therefrom, not on his personal knowledge or belief. (See Redd, supra, 48 Cal.4th at pp. 740-741 [prosecutor did not improperly vouch for the credibility of witnesses by referring to a “ ‘police woman doing her job’ ” and another officer “ ‘willing to do [his job] properly’ ”].) (Id. at p. 741.) Accordingly, since there was no prosecutorial misconduct as to these comments, trial counsel was not ineffective for failing to object to them.
Regarding the prosecutor’s comments that COs are more honest than inmates, the prosecutor engaged in misconduct to the extent he expressed his personal opinion. As previously stated, trial counsel could have reasonably concluded that objections to these comments would have resulted in the prosecutor focusing on defendant’s prior felony convictions. Accordingly, defendant has failed to show trial counsel was incompetent as to these comments.
4. Violation of Trial Court’s Order
Defendant argues that the prosecutor committed misconduct when he violated the trial court’s order not to elicit testimony from Acosta regarding the reasons why Acosta was refusing to testify.
On the second day of trial, Acosta appeared to testify. Defense counsel objected to his testimony because Acosta was not disclosed as a witness in the prosecutor’s trial brief. The prosecutor stated that he was intending to call Acosta as a witness because he was the victim of the assault. In the event that Acosta refused to testify, the prosecutor wanted to lay the foundation to call an expert witness to explain why Acosta was not testifying. The trial court was concerned about opening the door to expert testimony when the defense had not received notice of an expert witness. Defense counsel argued that by “having Mr. Acosta take the stand without us having notice, and, then . . . , being allowed to call an expert to be able to say, well, he doesn’t testify, because he’s afraid, that sheds a more negative light on my client.” The trial court ruled, “What I’m inclined to do is allow Mr. Acosta to testify, as he chooses, or chooses not to testify. No one seems to quite know. But that ruling does not, in any way, in my mind, allow the District Attorney to, then, follow up with an expert that has not been disclosed, and the subject matter of that expertise has not been disclosed.”
The prosecutor called Acosta to the stand and asked him about the fight in the yard. Acosta answered, “Just no comment. I plead the Fifth. I don’t even know why I’m here.” Acosta then refused to answer most of the prosecutor’s questions, stating, “I plead the Fifth” and “no comment.” The prosecutor asked Acosta whether “part of surviving means don’t testify, don’t say anything, what happened to you?” The prosecutor asked whether the reason Acosta would not testify was that he would be “subject to attack from other people, if . . . they know you’ve testified.” Acosta was also asked, “if you’re attacked, the way to survive is just to not say a word, and let bygones be bygones; correct?” and “Because if you do testify, they’ll attack you again, and this time maybe make it real?” During closing argument, the prosecutor told the jury “[y]ou take the stand, you’re a rat. Acosta knows that. You just have to take that stabbing. . . . So, you know, the best I’m going to get out of the guy is to show you, that’s what an inmate who’s attacked has to go through.”
“It is misconduct for a prosecutor to violate a court ruling by eliciting or attempting to elicit inadmissible evidence in violation of a court order. [Citation.]” (People v. Crew (2003) 31 Cal.4th 822, 839.)
Here, the prosecutor did not violate the trial court’s ruling. The trial court ruled that the prosecutor could not call an expert witness to give an opinion explaining Acosta’s testimony. The trial court did not rule that the prosecutor was prevented from questioning Acosta regarding why he refused to testify. Thus, there was no misconduct by the prosecutor in his questioning of Acosta.
Defendant also argues that the prosecutor suggested that Acosta was afraid of him, which was not based on any evidence in the record. We disagree. The prosecutor’s questions generally asked Acosta if he wanted to survive in prison and whether he was concerned about attacks from “other people” if he testified. To each of these questions, Acosta responded “no comment.” Thus, neither the question nor Acosta’s response suggested that he was afraid of defendant.
In sum, since the prosecutor’s questions did not elicit inadmissible evidence, trial counsel was not incompetent when he failed to object to them.
5. Questions Implying that Defendant was in a Gang
Defendant argues that the prosecutor improperly implied that he was a gang member and carried out the fight in the yard on behalf of the gang.
During cross-examination of defendant, the prosecutor told him that he and Perez started the fight and that they “were sending a message to Acosta. It was a ‘hard check,’ wasn’t it?” Defendant responded, “I don’t know.” The prosecutor then asked, “You don’t know if that was a hard check that you and Perez laid on Acosta?” Defendant replied, “I wasn’t checking anyone.” After the prosecutor asked defendant who ordered him and Perez to attack Acosta, the trial court sustained defense counsel’s objection. The following exchange occurred: “Q [prosecutor] You’ve learned the ins and outs of prison, haven’t you? [¶] A [defendant] I don’t know ins and outs. [¶] Q Well, isn’t it true that there are people that they call ‘shot callers’? [¶] A You know more than I do. [¶] Q People on the blocks who run the block, and they are the ones who order people to be assault? [¶] A No, not that I know of. [¶] Q That doesn’t happen? [¶] A Well, I frequently see people fighting, but I don’t know the reasons.”
“ ‘It is improper for a prosecutor to ask questions of a witness that suggest facts harmful to a defendant, absent a good faith belief that such facts exist.’ ” (People v. Osband (1996) 13 Cal.4th 622, 695.)
The prosecutor’s questions strongly implied that defendant was a gang member. Defendant argues that since there is nothing in the record suggesting that defendant had any connection to a gang or that he assaulted Acosta with Perez under orders from a shot caller, the prosecutor committed misconduct. But defendant has failed to establish that trial counsel was incompetent for failing to object. The prosecutor’s questions were brief and did not expressly refer to a gang. Moreover, defendant denied “checking” anyone or knowing the meaning of “shot callers.” Thus, trial counsel could have reasonably concluded that an objection would have emphasized this portion of defendant’s testimony.


6. Misstatement of the Law on Premeditation and Deliberation
Defendant next contends that the prosecutor misstated the law by equating premeditation and deliberation with malice aforethought and by using misleading analogies.
The trial court instructed the jury on the law of premeditation and deliberation: “If you find the defendant guilty of attempted murder in Count 3, you must, then, decide whether the People have proved the additional allegation that the attempted murder was done willfully and with deliberation and premeditation. The defendant acted willfully if he intended to kill when he acted. [¶] The defendant, Pedro Alvarez, deliberated if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant, Mr. Alvarez, premeditated if he decided to kill before acting. [¶] The length of time the person spends considering whether to kill does not alone determine whether the intent to kill is deliberate and premeditated. [¶] The length of time required for deliberation and premeditation may vary from person to person and according to the circumstances. [¶] A decision to kill made rashly, impulsively, or without careful consideration of the choice and its consequences is not deliberate and premeditated. [¶] On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time.”
During closing argument, the prosecutor stated: “Mental state is formed before, and it’s -- you have to form that before you’re doing the act. It does not require deliberation or the passage of any particular time. Couple of examples: [¶] Baseball, I always like to talk about. You’ve got a pitcher, 60 feet, six inches away from the batter. He throws the ball. It’s coming in there. The batter has to premeditate. The batter has to think about it. Am I going to swing at this thing? And he’s premeditating. He’s thinking about that. He’s deliberating. It doesn’t have to be a long time. [¶] A better example might be the running of the yellow light I talked about. You see that light turn yellow. You, kind of, quickly look. Where is the intersection? You look left and right, see if there are any people, bicycles, cops. You’re thinking about the consequences. If I speed up, yeah, I’ll get there two minutes quicker. I may get a ticket. But you weigh all that stuff and -- vroom [sound effect] -- off you go. Or you stop, and you think, a little too far away. You stop. You premeditate. You contemplated all the acts and what could go wrong with it, so that’s all you need. Here, after you strangle -- or stabbed the guy and sliced his neck, then, you decide, better choke him out, ’cause he’s not dying. That’s a lot of premeditation. Plenty of time for it.”
Defendant argues that the prosecutor erroneously equated premeditation and deliberation with malice aforethought (§§ 187, subd. (a), 188), that is, the intent to kill before the act, when he told the jury that “[m]ental state is formed before, and it’s -- you have to form that before you’re doing the act.”
“A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] ‘Deliberation’ refers to careful weighing of considerations in forming a course of action; ‘premeditation’ means thought over in advance. [Citations.] ‘The process of premeditation and deliberation does not require any extended period of time. “The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . .” [Citations.]’ ” (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) “ ‘An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse.’ [Citation.]” (People v. Pearson (2013) 56 Cal.4th 393, 443.)
We disagree with defendant’s characterization of the prosecutor’s statements. The prosecutor made the introductory statement that “[m]ental state is formed . . . before you’re doing the act.” However, he never equated premeditation and deliberation with malice aforethought. In referencing the mental state, he then presented two analogies to explain the concepts of premeditation and deliberation. These analogies of the process of making a decision were consistent with the legal principles of premeditation and deliberation.
Defendant also argues that the baseball and yellow light analogies were erroneous examples of premeditation and deliberation. He asserts that a decision “to swing at a pitch is a decision that must be made almost reflexively,” “is the result of ‘unconsidered or rash impulse,’ ” and “is informed by years of training and experience . . . .” He further maintains that a driver’s decision to stop at a yellow light is based not only on “his or her thought process seconds before the decision, but also on the driver’s experience in similar situations.”
“ ‘[A] prosecutor is given wide latitude during argument’ ” and “ ‘counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.’ [Citation.]” (People v. Wharton (1991) 53 Cal.3d 522, 567 (Wharton).)
Here, the prosecutor presented the baseball analogy as an example of someone who was carefully weighing considerations before making a decision. The prosecutor did not refer to the batter’s decision as reflexive or akin to “ ‘unconsidered or rash impulse.’ ” He explained that the batter had to “think about it,” decide whether he was “going to swing,” was “thinking about that,” and that the thought process did not have to be “a long time.” These comments were consistent with the instructions on premeditation and deliberation.
The prosecutor also used the yellow light analogy to describe circumstances in which the driver makes a decision after considering various factors. The California Supreme Court upheld a similar analogy in People v. Avila (2009) 46 Cal.4th 680. In that case, the court stated: “Nor, contrary to defendant’s assertion, did the prosecutor argue that ‘the “cold, calculated” judgment of murder is the equivalent of deciding whether to stop at a yellow light or proceed through the intersection.’ Rather, the prosecutor used the example of assessing one’s distance from a traffic light, and the location of surrounding vehicles, when it appears the light will soon turn yellow and then red, and then determining based on this information whether to proceed through the intersection when the light does turn yellow, as an example of a ‘quick judgment’ that is nonetheless ‘cold’ and ‘calculated.’ He then immediately said, ‘Deciding to and moving forward with the decision to kill is similar, but I’m not going to say in any way it’s the same. There’s great dire consequences that have a difference here.’ ” (Id. at p. 715.) Defendant argues that Avila is distinguishable, because the prosecutor added that the decision to kill differs from driving through a yellow light due to the consequences. We disagree. The distinction between the two cases concerned the consequences of, not the mental state required for, first degree murder. In both Avila and the present case, the prosecutor used the yellow light analogy as an example of making a quick decision.
Since the prosecutor did not engage in misconduct in his argument to the jury regarding premeditation and deliberation, trial counsel did not render ineffective assistance when he failed to object.
As to defendant’s contention that the batter’s and driver’s decisions are the result of their training and experience, defendant has cited no authority that an imperfect analogy constitutes a misstatement of the law. In our view, both analogies fall within the wide latitude given to a prosecutor during closing argument. (Wharton, supra, 53 Cal.3d at p. 567.)

F. Cumulative Error
Defendant contends that he was deprived of a fair trial and due process by the cumulative impact of the errors in the present case. We have found that the trial court erred when it failed to instruct the jury on expert testimony pursuant to CALCRIM No. 332 and rejected his remaining claims. (People v. Stitely (2005) 35 Cal.4th 514, 560.) Thus, there is no prejudice to cumulate.

III. Disposition
The judgment is affirmed.














_______________________________
Mihara, J.



WE CONCUR:






______________________________
Elia, Acting P. J.






______________________________
Bamattre-Manoukian, J.











People v. Alvarez
H043801
]]> https://www.fearnotlaw.com/wsnkb/thread/69252/ Defendant Robert Clifford Shaw was placed on probation after he pleaded no contest to selling cocaine (Health & Saf. Code, § 11352, subd. (a)), transportation of cocaine (ibid.), possession for sale of cocaine (Health & Saf. Code, § 11351), possession of oxycodone (Health & Saf. Code, § 11350, subd. (a)), possession of concentrated cannabis (Health & Saf. Code, § 11357, subd. (a)), driving with a blood alcohol level of 0.08 percent or more (Veh. Code, § 21552, subd. (b)), and being under the influence of cocaine (Health & Saf. Code, § 11550, subd. (a)). On appeal, defendant contends the trial court erred by denying his motion to suppress evidence (Pen. Code, § 1538.5) and his motion to dismiss (Pen. Code, § 995). Defendant argues he was subjected to “an unconstitutional detention and search” when the police stopped his vehicle because its rear center brake light was not working. For reasons that we will explain, we will affirm the order of probation. https://www.fearnotlaw.com/wsnkb/articles/p-v-shaw-ca-69251.html Wed, 14 Mar 2018 18:58:46 GMT https://www.fearnotlaw.com/wsnkb/articles/p-v-shaw-ca-69251.html NOT TO BE PUBLISHED IN 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

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT CLIFFORD SHAW,

Defendant and Appellant.
H043050
(Santa Clara County
Super. Ct. No. C1476652)
I. INTRODUCTION
Defendant Robert Clifford Shaw was placed on probation after he pleaded no contest to selling cocaine (Health & Saf. Code, § 11352, subd. (a)), transportation of cocaine (ibid.), possession for sale of cocaine (Health & Saf. Code, § 11351), possession of oxycodone (Health & Saf. Code, § 11350, subd. (a)), possession of concentrated cannabis (Health & Saf. Code, § 11357, subd. (a)), driving with a blood alcohol level of 0.08 percent or more (Veh. Code, § 21552, subd. (b)), and being under the influence of cocaine (Health & Saf. Code, § 11550, subd. (a)).
On appeal, defendant contends the trial court erred by denying his motion to suppress evidence (Pen. Code, § 1538.5) and his motion to dismiss (Pen. Code, § 995). Defendant argues he was subjected to “an unconstitutional detention and search” when the police stopped his vehicle because its rear center brake light was not working. For reasons that we will explain, we will affirm the order of probation.
II. BACKGROUND
A. Preliminary Hearing Evidence
Just after 2:00 a.m. on January 7, 2014, Campbell Police Officer Brendan Bligh conducted a vehicle stop. Defendant was the driver of the vehicle, and there were two passengers—a male and a female.
Officer Bligh stopped defendant’s vehicle after observing that the “center brake light in the back windshield” was not working. Officer Bligh believed this was a violation of Vehicle Code section 24252, subdivision (a). The brake lights on the right and left sides of the rear of the vehicle were working.
When Officer Bligh spoke with defendant, he noticed an odor of alcohol emanating from defendant and the vehicle. Defendant also exhibited signs of alcohol intoxication: his eyes were watery, and his speech was “a little thicker.” Officer Bligh administered a horizontal gaze nystagmus test and determined that defendant was not able to properly track a pen. Defendant admitted having had “a beer or two” as well as a “shot.”
Officer Bligh asked defendant to step out of the vehicle. Defendant consented to a search of his person, which revealed he had $739 cash in his wallet. Field sobriety tests showed that defendant had difficulty counting to 30 and difficulty maintaining his balance when standing on one foot. Defendant did not follow instructions during a “walk and turn” test. Preliminary alcohol screening tests showed defendant had a blood alcohol content of 0.123 and 0.127.
Officer Bligh arrested defendant and searched his vehicle. Inside the glove compartment, there was a clear plastic bag containing a white powdery substance that was later confirmed to be 4.12 grams of cocaine. A black digital scale was also in the glove compartment. Inside the trunk of the vehicle, there was a safe. Officer Bligh obtained a search warrant for the safe. Inside the safe, he found a plastic bag containing a white crystal substance that tested presumptive positive for methamphetamine, but which was later found not to be a controlled substance. The safe also contained thousands of small plastic bags, containers of hash oil, codeine pills and oxycodone pills, and glass pipes.
After waiving his Miranda rights, defendant claimed that the cocaine found in his glove compartment was for personal use. He was unable to explain why he had a scale. He acknowledged ownership of the safe. Defendant admitted he had used cocaine within the prior 48 hours, and a subsequent blood sample tested positive for cocaine. The blood sample also showed defendant had a blood alcohol content of 0.12 percent.
Another officer searched the male passenger and found a baggie containing a white substance. The male passenger’s cell phone contained text messages exchanged with defendant. The text messages indicated “an attempt to meet up with the intent to exchange narcotics.”
The female passenger displayed objective symptoms of being under the influence of cocaine, and she admitted having used cocaine that day. She said she had obtained the cocaine from defendant.
B. Motion to Suppress
Defendant filed a motion to suppress evidence (Pen. Code, § 1538.5) at the preliminary hearing, arguing that he was detained without reasonable suspicion or probable cause. He asserted that the prosecution had the burden to justify the detention. (See People v. Williams (1999) 20 Cal.4th 119, 130.)
The prosecution filed written opposition, arguing that defendant’s initial detention was justified by Officer Bligh’s observation of the non-working rear center brake light, which constituted a violation of Vehicle Code section 24252, subdivision (a).
Defendant argued that a non-working rear center brake light is not a violation of Vehicle Code section 24252, subdivision (a) because the statute requires only that “lighting equipment of a required type” be maintained in good working order, and only “two stoplamps” are required pursuant to Vehicle Code section 24603, subdivision (b). Defendant asserted that the non-working rear center brake light qualified as a “supplemental stoplamp” (see Veh. Code § 24603, subd. (h)(2)) that was not subject to the “good working order” requirement of Vehicle Code section 24252, subdivision (a).
The prosecution filed supplemental opposition, arguing that the rear center brake light was a “required piece of lighting equipment under federal standards adopted by the California Highway Patrol,” citing In re Justin K. (2002) 98 Cal.App.4th 695 (Justin K.). The prosecution noted that supplemental stoplamps are required to comply with federal regulations. (See Veh. Code, § 24603, subd. (i).)
At the motion to suppress hearing, defendant argued that Justin K. was “wrongly decided” because although Vehicle Code section 24603 incorporated the federal standards for “how a center rear stoplamp should function,” the statute did not “elevate the center stoplamp to a required lighting.”
The trial court denied defendant’s motion to suppress. The trial court explained: “[I]f the manufacturer decides to put two lights, one on the left and one on the right [a]s required minimally by the Vehicle Code, they can do that. But if they decide to manufacture the car with a third one in the middle, then you must maintain it.”
C. Information and Motion to Dismiss
An information was filed charging defendant with selling cocaine (Health & Saf. Code, § 11352, subd. (a); count 1), transportation of cocaine (ibid.; count 2), possession for sale of cocaine (Health & Saf. Code, § 11351; count 3), possession of oxycodone (Health & Saf. Code, § 11350, subd. (a); count 4), possession of concentrated cannabis (Health & Saf. Code, § 11357, subd. (a); count 5), driving under the influence of alcohol (Veh. Code, § 23152, subd. (a); count 6), driving with a blood alcohol level of 0.08 percent or more (Veh. Code, § 23152, subd. (b); count 7), and being under the influence of cocaine (Health & Saf. Code, § 11550, subd. (a); count 8).
Defendant moved to dismiss the information (Pen. Code, § 995), arguing that the motion to suppress had been “improperly denied.” Defendant reiterated his arguments: that Vehicle Code section 24252, subdivision (a) requires only that “lighting equipment of a required type” be maintained in good working order, that Vehicle Code section 24603, subdivision (b) requires only “two stoplamps,” and that the non-working rear center brake light qualified as a “supplemental stoplamp” (see Veh. Code, § 24603, subd. (h)(2)) that was not required to be maintained in good working order. Defendant also reiterated his argument that Justin K. was wrongly decided. Further, he asserted that Officer Bligh had not made an objectively reasonable mistake of law.
The prosecution opposed defendant’s motion to dismiss, arguing that Officer Bligh reasonably suspected defendant’s vehicle was being operated in violation of Vehicle Code section 24252, subdivision (a) and urging the trial court to follow Justin K.
The trial court determined that it needed to “follow the law as stated in In re Justin K.,” and it denied defendant’s motion to dismiss.
D. Pleas and Sentencing
Pursuant to a negotiated disposition, defendant pleaded no contest to counts 1 through 5, plus counts 7 and 8. At the sentencing hearing, the trial court dismissed count 6 and placed defendant on probation. Defendant was ordered to serve a 90-day jail term but was permitted to complete that term on the electronic monitoring program.
III. DISCUSSION
Defendant contends the trial court erred by denying his motion to suppress evidence (Pen. Code, § 1538.5) and his motion to dismiss (Pen. Code, § 995) because Officer Bligh was not justified in stopping his vehicle based on the malfunctioning rear center brake light.
A. Standard of Review
“In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the court’s resolution of the factual inquiry under the deferential substantial evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. [Citation.]” (People v. Ramos (2004) 34 Cal.4th 494, 505.)
The instant case involves a question of statutory interpretation, as to which we apply the following well-established rules. “[O]ur fundamental task is to ascertain the Legislature’s intent so as to effectuate the purpose of the statute. [Citation.] We begin with the language of the statute, giving the words their usual and ordinary meaning. [Citation.] The language must be construed ‘in the context of the statute as a whole and the overall statutory scheme, and we give “significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose.” ’ [Citation.] In other words, ‘ “we do not construe statutes in isolation, but rather read every statute ‘with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.’ [Citation.]” ’ [Citation.] If the statutory terms are ambiguous, we may examine extrinsic sources, including the ostensible objects to be achieved and the legislative history. [Citation.] In such circumstances, we choose the construction that comports most closely with the Legislature’s apparent intent, endeavoring to promote rather than defeat the statute’s general purpose, and avoiding a construction that would lead to absurd consequences. [Citation.]” (Smith v. Superior Court (2006) 39 Cal.4th 77, 83 (Smith).)
B. Analysis
Defendant repeats the arguments he made during the proceedings on his motion to suppress and motion to dismiss: that Vehicle Code section 24603, subdivision (b) requires only “two stoplamps,” that Vehicle Code section 24252, subdivision (a) requires only “required” stoplamps to be maintained in good working order, and that the non-working rear center brake light qualified as a “supplemental stoplamp” (Veh. Code, § 24603, subd. (h)(2)) that was not required to be maintained in good working order. Defendant urges this court not to follow Justin K.
The facts of Justin K. are very similar to the facts here: an officer noticed that the defendant was driving a vehicle that had two working brake lights but a non-working “third brake light located in the rear window.” (Justin K., supra, 98 Cal.App.4th at p. 697.) The officer stopped the vehicle “for an ‘equipment violation’ ” and discovered the defendant was intoxicated. (Ibid.) The defendant later moved to suppress, contending that the rear center stoplamp was not required to be in good working order.
The Justin K. court acknowledged that Vehicle Code section 24603 does not make supplemental stoplamps “required equipment.” (Justin K., supra, 98 Cal.App.4th at p. 699.) However, the court explained, Vehicle Code section 26103, subdivision (a) permits the Department of the California Highway Patrol to adopt the federal standards for lighting equipment. (Justin K., supra, 98 Cal.App.4th at p. 699.) The Department of the California Highway Patrol has adopted the federal safety standards, and the federal standards do require supplemental stoplamps. (Justin K., supra, 98 Cal.App.4th at p. 699, citing 49 C.F.R. § 571.108, S.51.1.27, S5.3.1.8 & table III (2002).) In addition, the court noted, Vehicle Code section 24603 requires supplemental stoplamps installed after January 1, 1987 to comply with the federal safety standards. (See fn. 5, ante.) Since “a supplemental stoplamp . . . that is not working would not be in compliance with that standard,” the officer was justified in stopping the defendant’s car. (Justin K., supra, 98 Cal.App.4th at p. 700.)
Defendant disagrees with the rationale of Justin K. He disputes that Vehicle Code section 26103 incorporates federal standards with respect to “local police.” He asserts that “the statute relates only to enforcement by the California Highway Patrol.” Thus, he argues, Officer Bligh was only “bound to follow the Vehicle Code’s requirements for stoplamps, not the federal standards incorporated by section 26103.”
The Attorney General argues that defendant’s interpretation of the relevant statutes would lead to absurd results: inconsistent enforcement standards that depend on the jurisdiction in which a defendant is driving. (See Smith, supra, 39 Cal.4th at p. 83.) In response, defendant points to the distinction between the enforcement jurisdiction of the California Highway Patrol and local police. (See Veh. Code, § 2400, subd. (d).)
As previously noted, in construing a statute, we “begin with the language of the statute, giving the words their usual and ordinary meaning” and giving significance to every word. (Smith, supra, 39 Cal.4th at p. 83.) Contrary to defendant’s claim, Vehicle Code section 26103 does not only authorize the Department of the California Highway Patrol to “enforce” vehicle lighting equipment standards. The statute also authorizes the Department of the California Highway Patrol to “adopt” vehicle lighting equipment standards. (Veh. Code, § 26103, subd. (a).) The standards that have been adopted are the federal standards, which require passenger vehicles to have a “[h]igh mounted stop lamp” in the center-rear that is “activated upon application of the service brakes.” (See 49 C.F.R. § 571.108, S6.1.1 & Table I-a (2016); Cal. Code Regs., tit. 13, § 621.) Vehicle Code section 26103 also specifies that where there is “a Federal Motor Vehicle Safety Standard . . . covering the same aspect of performance of a device, the provisions of that standard” prevail over Vehicle Code provisions concerning lighting equipment. (Veh. Code, § 26103, subd. (b).) Thus, under Vehicle Code section 26103, vehicle lighting equipment must comply with the federal standard, which requires a rear center stoplamp, making a rear center stoplamp “lighting equipment of a required type” that must “at all times be maintained in good working order” pursuant to Vehicle Code section 24252, subdivision (a).
We conclude that Officer Bligh reasonably determined that defendant’s vehicle was in violation of Vehicle Code section 24252, subdivision (a) because it had a non-working rear center brake light. Therefore, the trial court did not err by denying defendant’s motion to suppress and motion to dismiss.
IV. DISPOSITION
The order of probation is affirmed.





___________________________________________
BAMATTRE-MANOUKIAN, J.






WE CONCUR:






__________________________
ELIA, ACTING P.J.






__________________________
GREENWOOD, J.








People v. Shaw
H043050

]]> https://www.fearnotlaw.com/wsnkb/thread/69251/ Dan Lejerskar appeals from an order compelling him to pay $63,000 in attorney fees to the attorney who represented his former wife, Eva Lejerskar, in this marital dissolution proceeding. Dan’s primary argument is that because the court had earlier determined the parties had a “valid and enforceable” settlement agreement which included an arbitration clause, the court lacked jurisdiction to award any further relief, including attorney fees, in the case. He is incorrect. The existence of an enforceable arbitration agreement only means that the parties to that agreement have the option to seek its enforcement, should either choose to do so. However, an arbitration agreement is not self-executing and in the absence of an order enforcing it — and staying further proceedings in the trial court — the agreement has no effect on the court’s jurisdiction to hear and determine issues that fall within its scope. https://www.fearnotlaw.com/wsnkb/articles/marriage-of-lejerskar-ca-69250.html Wed, 14 Mar 2018 18:58:16 GMT https://www.fearnotlaw.com/wsnkb/articles/marriage-of-lejerskar-ca-69250.html





NOT TO BE PUBLISHED IN 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

FOURTH APPELLATE DISTRICT

DIVISION THREE


In re Marriage of EVA and DAN LEJERSKAR.

EVA LEJERSKAR,

Respondent,

v.

DAN LEJERSKAR,

Appellant.


G053989

(Super. Ct. No. 14D009770)

O P I N I O N


Appeal from a postjudgment order of the Superior Court of Orange County, Carla Singer, Judge. Affirmed.
Burch Coulston & Shepard, Courtney L. Shepard and Kevin F. Harrison, for Appellant.
No appearance for Respondent.

Dan Lejerskar appeals from an order compelling him to pay $63,000 in attorney fees to the attorney who represented his former wife, Eva Lejerskar, in this marital dissolution proceeding. Dan’s primary argument is that because the court had earlier determined the parties had a “valid and enforceable” settlement agreement which included an arbitration clause, the court lacked jurisdiction to award any further relief, including attorney fees, in the case. He is incorrect.
The existence of an enforceable arbitration agreement only means that the parties to that agreement have the option to seek its enforcement, should either choose to do so. However, an arbitration agreement is not self-executing and in the absence of an order enforcing it — and staying further proceedings in the trial court — the agreement has no effect on the court’s jurisdiction to hear and determine issues that fall within its scope.
Dan also contends the court abused its discretion in ordering him to pay Eva’s attorney fees because it failed to conduct an adequate assessment of his financial condition before issuing the order. Again, we disagree. The court’s minute order reflects it considered both parties’ financial circumstances, and to the extent the court’s information about Dan’s finances was out of date, the error was Dan’s, not the court’s.
The order is affirmed.

FACTS

Eva filed a petition for dissolution of marriage in October 2014. In November 2014, she filed a request for an order enforcing a June 2014 settlement agreement and compelling Dan to pay her spousal support in the amount of $30,000 per month, as allegedly provided in that agreement. Eva also requested an award of attorney fees, claiming she was unemployed and consequently without resources.
In his response to the petition, Dan sought an order confirming a July 2013 dissolution of the parties’ marriage in Stockholm, Sweden, as well as a determination of marital property rights in accordance with a prenuptial agreement dated December 1998, and translated from Swedish. Dan also sought an award of attorney fees payable by Eva.
In January 2015, the parties stipulated to a court order covering a range of issues. Among other things, they agreed Dan would pay temporary spousal support of $14,136 per month to Eva, and he would also pay the February 2015 property tax bill on Eva’s residence from community funds. The parties also agreed Dan would “advance” $20,000 toward Eva’s attorney fees, payable directly to her attorney, and would advance up to $10,000 for Eva’s retention of a forensic accountant.
The parties further stipulated to a continuance of the hearing on Eva’s request for orders and agreed the trial court “shall reserve jurisdiction over the issues set forth herein” and “reserve all other issues to the time of trial.” (Italics added.)
In March 2015, Eva filed a second request for an order allowing her to withdraw $40,000 from a specified community account, “as a pre-distribution of community assets.” In support of that request, Eva filed a declaration stating the additional funds were needed, in part, because the initial $20,000 advanced to her for attorney fees was already exhausted, and citing the expense generated by Dan’s voluminous discovery requests.
In his response to Eva’s initial request for order, Dan objected to her request for $30,000 in monthly spousal support (as apparently called for in the 2014 settlement agreement), but would consent to an order either continuing the current temporary spousal support of $14,136 per month, or awarding guideline support. Dan did acknowledge the existence of a “June 3, 2014 settlement agreement” between himself and Eva, but stated that “issues regarding [it were] still pending” and he had “been attempting to reach a settlement agreement with [Eva] with regard to the remaining issues.”
Dan also stated he did “not fundamentally disagree” with Eva’s request to withdraw $40,000 in funds from community assets, but claimed the specific account she designated for the withdrawal was held in the name of a trust, and was under the control of a trustee located in the British territory of Gibralter. Consequently, Dan asserted any order made with respect to that account would have no legal effect.
Eva again continued the hearing on her request for orders to August 2015. She also filed a request for a new order, allowing her to withdraw $200,000 from the same account she had previously identified. In her supporting declaration, she disclosed that in response to her earlier request for $40,000 from the account, Dan had informed her he did not want to “invade the [a]ccount” and offered instead to obtain the $40,000 from other sources. She stated that “$40,000 ha[d] been utilized” but she still needed additional funds to pay her forensic accountant.
In June 2015, the parties again stipulated to a court order, this time providing that both parties, along with their respective attorneys and forensic accountants, should have access to documents regarding “the Lejerskar Trust held with The Sovereign Group,” and that all were authorized to speak directly with the trustee. Dan also responded to Eva’s latest request for order with a declaration claiming Eva had already received her half of the marital assets under the 2014 settlement agreement she referenced in her petition. He further confirmed that he had paid her the initial $40,000 she had requested, in addition to the initial $20,000 provided for in the original stipulated order, for a total of $60,000 toward her attorney fees and expenses. And finally, he asserted that the funds in the trust account “cannot be accessed except for the purposes of survival and absolute necessity as determined by the trustee of the Stockholm Trust.” For those reasons, he opposed Eva’s request for a distribution of $200,000 from that trust.
Eva filed a responsive declaration, disputing most of what Dan said. And in August 2015, when the parties appeared at the hearing on her requests for orders, they again stipulated to an order, this time increasing Eva’s temporary spousal support to $22,000 per month. Eva’s requests for orders were again continued.
In September 2015, the parties also stipulated to an order allowing distribution of $200,000 from the trust account to both Eva and Dan, “to the extent permitted under the terms and conditions of the Stockholm Trust.” Approximately two weeks later, Dan filed a request for orders (1) designating the case as complex; (2) appointing a referee to “oversee the allocation of fees and costs,” and (3) requiring sale of the family residence. In support of that request, Dan declared, among other things, that the trustee of the Stockholm Trust had rejected the requested distributions from the trust. He also declared that the family home was actually his separate property in accordance with the 1998 Swedish Marital Agreement he had asked the court to enforce in his response to Eva’s petition, and explained Eva’s only claim to ownership of the home was the 2014 settlement agreement that Dan was requesting the court not enforce.
Both Eva’s and Dan’s requests for orders came before the court for hearing in November 2015. But instead of proceeding with that hearing, the court held a series of chambers conferences with the parties. The court heard from both sides as to the enforceability of the 2014 settlement agreement, and stated that it would grant Eva’s request for an order enforcing the settlement agreement if both sides “agree that the agreement is enforceable.”
However, Dan’s counsel pointed out that in response to Eva’s request for enforcement, he had requested an order modifying the amount of spousal support provided for in the settlement agreement, which would have to be considered in conjunction with Eva’s request. Moreover, he also pointed out that the 2014 settlement agreement Eva sought to inforce included an arbitration provision which specified that any disputes arising under its provisions would have to be resolved by arbitration in London. Dan’s counsel asserted that arbitration provision created a jurisdictional problem, arguing that if the parties stipulated to the agreement’s validity and enforceability, “that would remove jurisdiction from this court altogether on all issues, including support, including division of property.” Eva’s counsel disagreed, pointing out that both parties had chosen to submit issues to the jurisdiction of the California court.
The court explicitly declined to make any ruling on the jurisdictional point, stating it would confine its ruling to whether the agreement was “valid and enforceable.” And ultimately, the court accepted the parties’ stipulation that the settlement agreement is “a valid agreement which implies that it was knowingly, intelligently, and voluntarily entered into by both sides.” The court then concluded “[t]he finding that it’s a valid agreement renders the agreement enforceable.”
Based upon the court’s finding, Eva agreed to withdraw her request for order because “to the extent one of the things we’re asking for is for you to say it’s a valid and enforceable agreement, we will withdraw the request for spousal support and attorney’s fees in this court.” However, when Dan’s counsel asserted that the withdrawal of Eva’s request for order regarding those issues also invalidated the parties’earlier stipulations regarding the same issues, the court replied, “I disagree with you, counsel.”
In January 2016, Eva filed a request that the court enter judgment in accordance with the terms of the 2014 settlement agreement, as well as an order to show cause seeking to have Dan held in contempt for his failure to pay spousal support as ordered by the court. In the face of Dan’s claim that he was in financial distress and thus unable to pay the court ordered spousal support, Eva propounded discovery requests. Dan objected to all discovery, claiming both that the parties’ settlement agreement required all disputes to be resolved in arbitration, and that he was invoking his Fifth Amendment right not to incriminate himself. Eva filed motions to compel Dan’s compliance with the discovery.
In February 2016, Dan initiated an arbitration proceeding in the ICC International Court of Arbitration. However, that proceeding was held in abeyance. In April 2016, Dan requested the matter be taken out of abeyance, and disclosed that the claims he sought to arbitrate against Eva included both “overpayment of spousal support under the Divorce Settlement Agreement and modification of future spousal support under the Divorce Settlement Agreement.”
On April 15, 2016, the court held a hearing on Eva’s request to enter judgment and on her contempt citation. The court granted the motion to enter judgment and continued the contempt matter to allow Dan to retain counsel to represent him. The court also acknowledged that Dan had filed a request for an order to modify the spousal support order, and ordered that request be continued to the same date as the contempt citation.
On May 5, 2016, Eva filed a request for an order declaring Dan had waived his right to compel arbitration in accordance with the settlement agreement, and also sought an award of attorney fees and sanctions. And on May 19, 2016, Dan filed his own request for an order staying the proceedings and compelling the parties to arbitrate their dispute. Thereafter, Dan filed several additional documents asserting the court lacked jurisdiction to resolve any pending disputes between the parties, and requesting that it advance the hearing date on his motion to compel arbitration.
On July 1, 2016, the court held a hearing on Eva’s motions to compel responses to discovery, and on her request for an order declaring Dan had waived his right to compel arbitration. At the hearing, the court announced that the judgment previously ordered had not been entered, and entered it that date.
The judgment specified the marriage was terminated effective July 25, 2013, in accordance with the “Swedish Divorce Decree” and that spousal support and property distribution were in accordance with the 2014 settlement agreement, which was attached. The judgment included a provision stating the court “shall further reserve jurisdiction with respect to the implementation of the terms of this Stipulated Judgment.”
The trial court then dismissed Eva’s contempt citation, at her request, to obviate Dan’s concern about potentially incriminating himself in responding to her discovery. The court then granted Eva’s motions to compel those responses, but delayed a ruling on her sanctions request.
However, the court determined it was “imperative” to make an award of attorney fees to Eva, based on the most recent income and expense information. The court noted Eva had been unemployed since 1993, while Dan’s “income is $25,000 per month, based on a 40 hour work week.” The court made a finding that the fee award was appropriate “in order for [Eva] to continue in this litigation.”
Thus, the court also ordered that Dan pay $63,000 toward Eva’s attorney fees, directly to her counsel, in accordance with Family Code sections 2030 and 2032. In making that order, the court noted Eva had been unemployed since 1993, while Dan’s “income is $25,000 per month, based on a 40 hour work week.”
The court ordered Dan to pay the attorney fees in three installments, beginning on July 15, and ending on September 2, 2016. The court specified that the “[f]ailure to make those payments shall incur interest at the legal rate.”
The court also ordered that Dan’s motion to compel arbitration be consolidated with Eva’s motion to declare a waiver of that right, and set them for hearing on August 12, 2016.
At the August 12 hearing, Eva presented the court with a new contempt citation, alleging Dan had failed to pay the attorney fees ordered in July. After Dan’s counsel accepted service of that citation, the court ruled on the arbitration motions, denying Eva’s claim of waiver and granting Dan’s motion to compel. The court then stayed all further proceedings in the case, with the exception of the newly filed contempt citation.

DISCUSSION

Trial Court’s Jurisdiction to Make Fee Award
Dan’s primary contention on appeal is that the trial court lacked jurisdiction to award any relief in the case after November 2015, when it ruled the parties’ 2014 settlement agreement was “enforceable.” The contention reflects a fundamental misunderstanding of the effect of an arbitration agreement, and we consequently reject it.
Stated simply, the mere existence of an enforceable arbitration agreement has no impact on the trial court’s authority to adjudicate a dispute. Instead, as pointed out in Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32: ‘[T]here is nothing to prevent one of the parties to a contractual arbitration provision from resorting initially to an action at law.’” (Id. at p. 44.) That is because “A right to compel arbitration is not . . . self-executing. If a party wishes to compel arbitration, he must take active and decided steps to secure that right, and is required to go to the court where the [other party’s] action [at law] lies.” (Gunderson v. Superior Court (1975) 46 Cal.App.3d 138, 143, disapproved on a different point in Doers v. Golden Gate Bridge Etc. Dist. (1979) 23 Cal.3d 180, 189.)
Thus, “[t]he party seeking resolution via contractual arbitration must also file a motion in the action at law to stay it [citations]; it will not be stayed automatically. [Citation.] This assertion of a contractual arbitration agreement constitutes a ‘plea in abatement’ of the action at law. (Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th 1790, 1795), and “[o]nce a court grants the petition to compel arbitration and stays the action at law, the action at law sits in the twilight zone of abatement with the trial court retaining merely a vestigial jurisdiction over matters submitted to arbitration. This vestigial jurisdiction over the action at law consists solely of making the determination, upon conclusion of the arbitration proceedings, of whether there was an award on the merits (in which case the action at law should be dismissed because of the res judicata effects of the arbitration award [citations].” (Ibid.)
“In sum, an arbitration provision does not oust the court of jurisdiction to hear the matter but merely means if one party chooses to arbitrate, a petition may be filed to stay the proceedings, order arbitration and then confirm the award.” (Dial 800 v. Fesbinder, supra, 118 Cal.App.4th at p. 45.)
In this case, Dan did not file his motion to compel arbitration of the parties’ dispute until May 2016, six months after the trial court ruled the 2014 settlement agreement was “enforceable.” And the court did not grant Dan’s motion, and stay the trial court proceedings, until August 12, 2016 — which was six weeks after its order requiring Dan to pay $63,000 in Eva’s attorney fees. Until that point, there was no dispute that the trial court had jurisdiction to make such fee orders; indeed, the parties had stipulated to it.
The cases Dan relies upon are actually consistent with this rule. In McRae v. Superior Court (1963) 221 Cal.App.2d 166, the appellate court concluded the trial court had erred when it ordered the defendant to submit to a deposition after the case had been ordered into arbitration. (Id. at p. 169.) As the court explained, “[I]t would be wholly incompatible with established policies of the law to permit the court thereafter to intervene in, and necessarily interfere with, the arbitration ordered.” (Id. at p. 171.)
And as Dan acknowledges in his brief, the appellate court in Bucur v. Ahmad (2016) 244 Cal.App.4th 175, stated, “[O]nce a dispute has been sent to arbitration, the courts may not act on that dispute absent an agreement to withdraw the controversy from arbitration.” (Id. at p. 188, italics added.)
In this case, by contrast, the court had not yet sent the dispute to arbitration when it made the award of attorney fees Dan challenges. And because the mere existence of an enforceable arbitration agreement did not preclude the trial court from exercising its jurisdiction over the issue, there was no error in doing so.

Sufficiency of Trial Court’s Analysis of Financial Circumstances
Dan also argues that even if the court had jurisdiction to make the fee award, it abused its discretion in doing so. As explained in In re Marriage of Falcone and Fyke (2012) 203 Cal.App.4th 964, “[p]ursuant to Family Code sections 2030 and 2032, the trial court is empowered to award fees and costs between the parties based on their relative circumstances in order to ensure parity of legal representation in the action. It is entitled to take into consideration the need for the award to enable each party to have sufficient financial resources to present his or her case adequately. In assessing a party’s relative need and the other party’s ability to pay, it is to take into account ‘“‘all evidence concerning the parties’ current incomes, assets, and abilities.’”’” (Id. at pp. 974-975, fn. omitted.)
Relying on Alan v. Superior Court (2009) 172 Cal.App.4th 238, Dan’s specific contention is that although the trial court record must “reflect an actual exercise of discretion and a consideration of the factors” (id. at p. 254), “the record in this action fails to demonstrate that the trial court engaged in any consideration of the appropriate factors required.” Dan also contends the court “refused to take into consideration any of the financial information [he] provided . . . that demonstrated his inability to pay the award fees from either earnings or assets.” We reject these contentions.
On appeal, we presume the trial court’s judgment is correct, and thus “[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564,) Thus, we are obligated to assume the court did consider all available evidence in making its ruling, unless the record affirmatively demonstrates otherwise. There is no such affirmative demonstration here.
Our own review of the available evidence reveals the trial court’s order was eminently reasonable. Dan’s income and expense report, which he characterizes as reflecting that he “had exhausted his liquid assets” and “had no assets,” supports neither contention. The document reflects that Dan’s cash and other “deposit accounts” somehow add up to a negative balance of $96,393 (without explaining how that could be the case) and it discloses nothing about his ownership of “stocks, bonds, and other assets” — that line is blank. As for “[a]ll other property,” including real estate, the form simply states “TBD” — presumably reflecting a promise that the information regarding such assets will be disclosed at some point in the future. However, Dan’s refusal to disclose his assets is not evidence that he has none.
As for his monthly expenses, which Dan claims were revealed to have “greatly exceeded his earnings” of $25,000 per month, the form included the mortgage payment for Eva’s home — although there is no evidence Dan actually paid that mortgage — plus the full $22,000 in spousal support he had been ordered to pay Eva, but apparently had not been paying.
Given the dearth of information Dan disclosed in his income and expense report, we could not fault the trial court for relying primarily on the parties’ income (or lack thereof) in making a fee award. “In making this [attorney fee] determination, the trial court has broad discretion in ruling on a motion for fees and costs; we will not reverse absent a showing that no judge could reasonably have made the order, considering all of the evidence viewed most favorably in support of the order.” (In re Marriage of Falcone and Fyke, supra, 203 Cal.App.4th at p. 975.)
Finally, Dan’s complaint that the court’s attorney fee award “relied upon a grossly outdated income and expense declaration [he] submitted . . . five months earlier” changes nothing. Family Code § 2100, subdivision (c), imposes on both parties “a continuing duty to immediately, fully, and accurately update and augment that disclosure to the extent there have been any material changes . . . .” In light of that duty, we cannot fault the trial court for presuming Dan’s financial circumstances had not materially changed since the filing of his most recent income and expense declaration.
DISPOSITION

The postjudgment order is affirmed. As there was no appearance by respondent, no costs are awarded.



IKOLA, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



MOORE, J.
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