P. v. Avery

Filed 3/28/07 P. v. Avery CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Defendant Shannon Avery appeals a judgment entered upon a jury verdict finding him guilty of assault with a deadly weapon or by means of force likely to produce great bodily injury. He contends he received ineffective assistance of counsel. We affirm.

I. BACKGROUND

Defendant was charged by amended information with assault with a deadly weapon or by means likely to produce great bodily injury. (Pen. Code,[1] 245, subd. (a)(1).) The information alleged defendant had personally inflicted great bodily injury on the victim during the commission of the offense.

The victim, David Pharr, was working as a cashier at a 7-Eleven store in San Leandro on the evening of February 29, 2004. An acquaintance of his, Susan Lewis, came into the store, and the two spoke briefly. Lewis completed her purchase and left the store. She came back a few minutes later, accompanied by defendant. Defendant began swearing at Pharr and pointing to him, saying, When you see a man with a woman, you dont supposed to speak. He hit Pharr hard in the arm, and Pharr hit him back. Defendant left the store, and Pharr called the police department and asked to have a car sent to the store.

While Pharr was still on the telephone with the police dispatcher, defendant came back into the store, jumped over the counter, and stabbed Pharr in the face. Pharr went into the back of the store and got a broomstick to defend himself. Defendant came toward Pharr in attack mode, and Pharr hit him on the forehead with the broomstick. Defendant kept approaching Pharr, and the two fought. During the fight, defendant stabbed Pharr in his face, arm, shoulder, and abdomen. When police sirens could be heard approaching, defendant left the store.

Defendant testified in his own defense as follows: He and Lewis drove to the 7‑Eleven. Lewis went into the store, and when she returned to the car, she told defendant that she had left because Pharr was flirting with her. Defendant heard banging on the store window, and saw Pharr jumping up and down, waving his hand and holding his crotch. He went into the store, challenged Pharr about his behavior, and told Pharr he should not flirt with Lewis. Pharr then hit defendant. Defendant left the store to get his glasses so that he could see Pharrs name. When he returned to the store, Pharr attacked him again, putting him into a choke hold and continuing to hit him. Defendant pulled a knife from his pocket and stabbed Pharr in order to get away from him. He left the store, drove away, and discarded the knife.

The jury found defendant guilty of assault with a deadly weapon or by means of force likely to produce great bodily injury, and found true the enhancement allegation that he personally inflicted great bodily injury on Pharr. The trial court sentenced defendant to the mid-term of three years for the violation of section 245, subdivision (a)(1) and an additional three-year term for the enhancement pursuant to section 12022.7, subdivision (a).

II. DISCUSSION

Defendant contends his trial counsel rendered ineffective assistance in four ways: by failing to question a juror for bias, by failing to object to or clarify testimony regarding the warrant on which defendant was arrested, by failing to object to the admission of a surveillance videotape, and by failing to object to statements the prosecutor made during closing argument.

In assessing claims of ineffective assistance of trial counsel, we consider whether counsels representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] A reviewing court will indulge in a presumption that counsels performance fell within the wide range of professional competence and that counsels actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. [Citations.] If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus. [Citation.] (People v. Carter (2003) 30 Cal.4th 1166, 1211; see also People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267; People v. Lucas (1995) 12 Cal.4th 415, 442 [conviction reversed on appeal on ground of incompetence of counsel only if record demonstrates there could be no rational tactical purpose for counsels omissions].)

A. Failure to Question Juror for Bias

During trial, one juror told the court he needed to be away for a day to attend the funeral of a relative who had been murdered, but expressed his wish to continue serving on the jury. The trial judge asked the juror if the death would affect his ability to serve as a juror, to participate, or to concentrate on the evidence. Neither the prosecutor nor the defense attorney had any questions for the juror, and the trial court arranged the trial schedule to accommodate him. Defendant contends his attorneys failure to question the juror about whether the murder would affect his ability to be fair and impartial constituted ineffective assistance.

On this record, we cannot conclude there could be no satisfactory explanation for counsels actions. The juror had assured the court that the murder would not affect his ability to serve as a juror. Moreover, the record does not disclose whether defense counsel considered the juror favorable to the defendant. In any case, there is no reason to think defendant was prejudicedthat is, that the juror would have been dismissed and that his replacement would have come to a different conclusion than the other 11 jurors.

B. Evidence of Defendants Arrest on Undisclosed Warrant

Defendant contends his counsel was ineffective in failing to challenge evidence that he had been arrested on an undisclosed warrant. A San Leandro police officer testified at trial that he went to the Oakland Police Departments jail on March 3, 2004, to pick up defendant on a San Leandro warrant. As he was taking defendant to San Leandro, defendant made the following statements: There goes my two jobs. Everything I have, I lost at 7-Eleven in five minutes; Is the kid still in the hospital?; and You just dont messyou just dont mess with someone when youre with someone. I went in there, and he just hit me square in the face. On direct examination, defendant testified he ended up in the custody of the San Leandro Police Department, having been arrested on the warrant; and on cross-examination, he stated that he had been picked up because you guys had issued a warrant. Defendant contends this testimony might have left the jury with the impression that he was a repeat offender with a warrant for conduct unrelated to the assault on Pharr. As a result, according to defendant, his counsel should have either objected to it or elicited testimony that the warrant had been issued for the 7-Eleven incident, not for some other crime.

We reject this contention. The statements defendant made to the police officer on the way to San Leandro all related to the crime at issue in this case, and in referring to the warrant during the prosecutors cross-examination, defendant stated that you guys had issued it. There is no reason to think the jury was misled into thinking the warrant had been issued for unrelated criminal conduct.

C. Admission of Videotape

Defendant contends his counsel was ineffective for failing to object to the jurys viewing a videotape of the incident taken from the stores surveillance cameras. During trial, Vicki Long, an audiovisual technician at the Alameda County District Attorneys Office, testified that she had produced the videotape the jury viewed from a multiplexor tape. A multiplexor is a unit that captures images in turn from multiple cameras.[2] The original tape from the 7-Eleven contained images from four cameras. Long used a computer program to separate the images from each individual camera from those of the others, allowing her to produce a tape that showed the images from each camera in sequence. She did not alter the content of the original videotape except by adding graphics to designate the different cameras from which the images were taken. Long explained that because the multiplexor continually switched from one camera to another, there were not as many images per second from each individual camera as would be the case with a normal video camera. As a result there were time gaps of approximately a tenth of a second between images, and the images from each camera were somewhat jerky. She also explained that in the store, the tape was time-lapsed, so that it ran through the multiplexor at a slower speed than it would in a normal recorder, but that she had corrected the version viewed by the jury by duplicating frames so that it showed images in real-time.

Defendant contends the gaps in the images rendered the completed videotape unreliable and that his counsel should have objected to the jurys viewing it. Nothing in the record persuades us that gaps of a fraction of a second between images made the videotape unreliable or misleading, and we see no likelihood that the trial court would have excluded it had defendants counsel raised an objection. (See People v. Polk (1996) 47 Cal.App.4th 944, 952 [  To be admissible, tape recordings need not be completely intelligible for the entire conversation as long as enough is intelligible to be relevant without creating an inference of speculation or unfairness.  ].) Moreover, defendants counsel took the position that the videotape supported defendants version of events. On this record, we cannot conclude he could have had no rational tactical purpose in failing to object.

D. Prosecutors Comments During Closing Argument

Defendant contends his counsel was ineffective for failing to object to two statements the prosecutor made. During closing argument, the prosecutor stated: Whenever somebody uses a deadly weapon and personally inflicts great bodily injury, thats a crime; and thats a crime no matter what. Later, in rebuttal, the prosecutor suggested to the jury that defendant was trying to make them feel sympathy for him so they would give him a break. He told the jurors their job was to find the truth of what happened, and went on to state: If theres to be a break, the court does that later, the court can choose probation if it feels its appropriate, the court can also choose the maximum if its appropriate and its a whole different aspect of things that happen at a sentencing hearing, which is what youre not to concern yourselves. And, in fact, the court will tell you, youre not to consider the sentencing at all in your deliberations.

Defendant contends his attorney should have objected to the statement that using a deadly weapon and inflicting injury is a crime no matter what, particularly in light of the fact that his defense was that he was acting in self-defense when he stabbed Pharr. Any confusion the prosecutors statement might have caused, however, was cured by the trial courts instructions, which included CALJIC Nos. 5.30 (self-defense against assault), 5.31 (assault with fistswhen use of deadly weapon not justified), 5.50 (self-defenseassailed person need not retreat), 5.51 (self-defenseactual danger not necessary), 5.52 (self-defensewhen danger ceases), 5.54 (self-defense by an aggressor), and 9.00, which explains that a willful application of physical force on another is not unlawful when done in lawful self-defense. Moreover, the trial court instructed the jury that if anything the attorneys said in their arguments conflicted with the instructions, it must follow the instructions. We presume the jury followed these instructions, and conclude there was no prejudice. (See People v. Ledesma (2006) 39 Cal.4th 641, 684; see also People v. Dickey (2005) 35 Cal.4th 884, 914 [ the mere failure to object rarely rises to a level implicating ones constitutional right to effective legal counsel ].)

Defendant also contends the jurys decision to find him guilty may have been influenced by the prosecutors suggestion that the trial court might grant probation. However, not only did the prosecutor immediately follow the challenged comment with the admonition that the jury should not consider sentencing in its deliberations, but the trial court also instructed the jury not to discuss or consider the subject of penalty or punishment in reaching its verdict. Once again, we presume the jury followed the instructions, and find no prejudice.

III. DISPOSITION

The judgment is affirmed.

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RIVERA, J.

We concur:

___________________________

REARDON, Acting P. J.

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SEPULVEDA, J.

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[1] All statutory references are to the Penal Code.

[2] The cameras do not necessarily take pictures in sequential order; more images might be produced in areas where there is more activity.