Filed 8/28/18 P. v. Abdulrazak CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant, Abdul Shukur Abdulrazak, appeals a judgment entered after a jury convicted him of assault by means of force likely to cause great bodily injury (Pen. Code § 245, subd. (a)(4); count one),[1] battery resulting in great bodily injury (§ 243, subd. (d); count two), and assault with a deadly weapon (§ 245, subd. (a)(1); count three). The jury found true the enhancements that in committing counts one and two, defendant personally inflicted great bodily injury upon the victim (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)). The trial court sentenced defendant to a total aggregate prison term of five years. Defendant argues his trial counsel was prejudicially ineffective for failing to move to exclude statements defendant’s daughter previously made about specific violent and fraudulent acts committed by defendant to impeach her testimony that defendant was nonviolent.

We affirm.

I. BACKGROUND

We limit our discussion of the case to that necessary to provide context given the narrow scope of defendant’s appeal. Familial discord existed between defendant’s family and the family of the two victims in this case arising from a dispute that is not relevant to the disposition of the issue on appeal. A confrontation between these families occurred, resulting in the charges in this case.

Defendant’s daughter testified on his behalf, including the People’s cross-examination of her regarding a statement she had previously made to investigators that defendant “wouldn’t hurt a girl.” The daughter confirmed she had made that statement and reiterated that defendant “is not a violent person” and “would not do the kind of things that he’s been charged with doing in this case . . . [¶] . . . [¶] . . . [e]specially using violence towards a female.”

An unreported sidebar conference occurred, and thereafter, the prosecutor cross-examined the daughter concerning statements she had previously made to authorities concerning her father’s physical assault of her mother, threats to kill her mother, defendant’s previous pushing of the witness to intimidate her, that defendant would throw and/or kick the witness’s books because he did not want her learning English, that the witness and her mother were afraid defendant would hurt or try to kill them, and that he was on disability, but he was lying and that he bragged about tricking the government in that regard. Defense counsel objected to some of these questions on the basis of speculation and scope.

At the conclusion of defendant’s daughter’s testimony, the trial court instructed the jury, stating, “[L]et me just tell the jurors, ladies and gentlemen, the questions – the alleged statements that the witness might have made back in 2014, I only allowed you to hear that not for – as evidence that the defendant made any of those threats, that he – the thing about committing fraud and – with the benefits or that he’s violent at home with the family and all that. That was not – I didn’t allow you to hear that for that purpose, for its truth. [¶] I only allowed you to hear that because she testified earlier about how he’s nonviolent. He wouldn’t hurt anybody. Okay. And of course as she did testify to that, so those other statements, if you believe them, are inconsistent with that characterization. So I allowed you to hear that strictly to assess whether or not she is credible with everything else she’s said. Okay. [¶] So that was the only reason why I allowed you to hear that testimony. It was not offered for the truth, that he threatened to kill the mom and picks fights with them or that he did commit some fraud on the government, et cetera. But just that she made some statements earlier where she characterized him in a certain way, and this is only put to you for you to assess whether or not her testimony overall is believable. If you believe that what – she made some statements in the past that are completely inconsistent with what she said here today about her dad’s character. Okay. [¶] So that’s why you heard that, to assess her credibility.” The trial court reiterated the limited use of this testimony when giving the CALCRIM No. 303 instruction, which was also provided to the jury.

II. DISCUSSION

Defendant argues his trial counsel was ineffective for failing to object to the prosecution’s impeachment of defendant’s daughter with character evidence concerning defendant’s prior acts of violence and fraudulent conduct.

Defendant is correct that his trial counsel’s failure to object to this line of questioning forfeited his ability to challenge its admission on the merits on appeal. (Evid. Code, § 353; People v. Alexander (2010) 49 Cal.4th 846, 912 [failure to object to improper character evidence under Evid. Code, § 1101 forfeits the claim on appeal].) We nonetheless must consider whether defendant has shown his trial counsel was ineffective in failing to object.

“To show ineffective assistance of counsel, defendant has the burden of proving that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different. [Citations.] [¶] Generally, failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight. [Citation.] ‘When a defendant makes an ineffectiveness claim on appeal, the appellate court must look to see if the record contains any explanation for the challenged aspects of representation. If the record sheds no light on why counsel acted or failed to act in the manner challenged, “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation” [citation], the contention must be rejected.’ [Citation.] A reviewing court will not second-guess trial counsel’s reasonable tactical decisions. [Citation.]” (People v. Kelly (1992) 1 Cal.4th 495, 519-520.) “ ‘[E]ven “debatable trial tactics” do not “constitute a deprivation of the effective assistance of counsel.” [Citation.]’ ” (People v. Weaver (2001) 26 Cal.4th 876, 928.) Effective assistance is not perfect assistance.

Here, defendant’s trial counsel did not object to the impeachment of defendant’s daughter with her previous statements inconsistent with her trial testimony that defendant “is not a violent person” and “would not do the kind of things that he’s been charged with doing in this case . . . [¶] . . . [¶] . . . [e]specially using violence towards a female.” The witness’s previous statements to the contrary were admissible impeachment evidence under Evidence Code section 1101, subdivision (c). (People v. Doolin (2009) 45 Cal.4th 390, 435-438 [evidence of defendant’s previous statements properly admitted to impeach defendant’s inconsistent testimony].) Counsel is not ineffective for failing to make futile objections to admissible evidence. (People v. Diaz (1992) 3 Cal.4th 495, 562.)

The propriety of the People’s questions concerning defendant’s daughter’s previous statements that defendant was defrauding the government because he was not really physically disabled initially appear to present a closer question. This argument was not directly addressed by the People, but the court’s review of the record reveals defendant’s daughter testified at trial that she believed her father was, in fact, disabled and that she had no reason to believe otherwise. Thus, trial counsel cannot be faulted for failing to object where the witness’s previous statements to the contrary were admissible under Evidence Code section 1101, subdivision (c). (People v. Doolin, supra, 45 Cal.4th at pp. 435-438; People v. Diaz, supra, 3 Cal.4th at p. 562.)

III. DISPOSITION

The judgment is affirmed.

/s/

Blease, Acting P. J.

We concur:

/s/

Murray, J.

/s/

Renner, J.