P. v. Clark
Filed 7/3/13 P. v. Clark
CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
ANDREW WILLIAM CLARK,
Defendant
and Appellant.
E055552
(Super.Ct.No.
INF1101222)
OPINION
APPEAL
from the Superior Court
of
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed.
Cindy
Brines, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for
Plaintiff and Respondent.
A
jury found defendant and appellant Andrew William Clark guilty of making
that defendant suffered (1) a prior strike conviction (§§ 667, subds. (c) &
(e)(1), 1170.12, subd. (c)(1)); (2) a prior serious felony conviction (§ 667,
subd. (a)); and (3) a prior felony conviction for which defendant served a
prison term (§ 667.5, subd. (b)). The
trial court sentenced defendant to prison for a term of nine years.
Defendant
raises three issues on appeal. First,
defendant contends the trial court erred by not
unanimity. Second, defendant asserts his
trial counsel was ineffective for failing to ensure the trial court followed
through with its agreement to give the jury a limiting instruction. Third, defendant contends the trial court
erred by denying him the opportunity to present mitigating evidence at the
City
of Desert Hot Springs Police Officer Tapia
responded to a robbery call on May 19,
2011. The robbery victim
alleged he had been punched and kicked in the face and his phone was
stolen. On May 19, the robbery victim
was unable to identify the attacker. On
May 25, the robbery victim contacted Tapia and identified defendant as the
attacker/robber. The robbery victim
identified defendant in a photographic lineup.
Tapia
knew defendant from previous contacts, such as Tapia investigating allegations
that defendant “beat his girlfriend†and “chased her with a knife.†Tapia planned to arrest defendant for the
alleged robbery. Prior to contacting
defendant, Tapia reviewed defendant’s criminal history and looked for any
outstanding warrants. Defendant had
“numerous†law enforcement contacts and convictions, some of which were for
violent crimes. Due to defendant’s
violent past, Tapia requested three additional units accompany him to arrest
defendant.
On
May 25, Tapia arrested defendant. Tapia
handcuffed defendant and transported him to the Desert Hot Springs Police
Station. At the station, Tapia sat
defendant on a bench in the booking area.
When Tapia informed defendant of the charges, defendant became “irate.†Defendant’s face was “red with anger.†While looking directly at Tapia, defendant
asked Tapia if he was the primary officer on the case and told Tapia that if he
were the primary officer then defendant would kill him and any Desert Hot
Springs officer involved in the case.
Tapia believed defendant was making a serious threat.
Defendant
continued making threats. Defendant said
he would “take down†every Desert Hot Springs police officer, “he would bury
[the officers] one by one and that he would blow up th[e] station.†Defendant said he would kill all Desert Hot
Springs police officers no “matter how long it would take him, three years,
five years, ten years.†Defendant told
Tapia to “watch [his] back†because “he was coming to get†the officers. While making these statements, defendant was
“smacking his hands with his closed fists.â€
Defendant’s
statements caused Tapia’s heart to pump faster and the hairs on his arms to
rise. Tapia began feeling as though
defendant actually wanted to kill him.
Tapia felt he was dealing with “a very dangerous person†so he requested
another officer assist him with moving defendant from the booking area to the
police car. While interacting with
defendant, Tapia continued to conduct himself in a “professional manner,†not
showing any fear or “emotions of weakness.â€
Tapia, by himself, drove defendant to the Banning Jail. Defendant sat handcuffed in the back seat of
the police car.
During
the drive from Desert Hot Springs to Banning, defendant continued to appear
“very upset and angry.†Defendant said
to Tapia, “[S]ince they couldn’t find shit on him last time, that hell was
going to break loose when he got outta jail.â€
Tapia understood defendant’s statement to mean defendant would “come
after†Tapia when he was released from incarceration. Tapia responded to defendant’s comments by
saying, “ Knock it off.’â€
Upon
arriving at the Banning Jail, defendant said, “‘Watch out, Tapia. . . . Coming
to get you.†Defendant then said, “‘If
it took years, tell your boys that I’m coming to get you.’†Tapia considered defendant’s remarks to be
serious threats. Tapia had been
threatened on prior occasions by other people, but was not scared by those
threats. Tapia felt scared by
defendant’s threats because defendant was “continuously†threatening
Tapia. Tapia explained that because of
defendant’s threats he was “always armed,†he purchased additional weapons, and
added lighting to the front of his house.
A. UNANIMITY INSTRUCTION
Defendant
contends the trial court erred by failing to sua sponte instruct the jury on
the subject of unanimity because the evidence reflected more than one factual
basis for a conviction. We disagree.
We
review alleged instructional errors de novo.
(People v. Martin (2000) 78 Cal.App.4th
1107, 1111.) “Unanimity instructions
[citation] are required whenever more than one act could constitute the offense
charged. [Citations.] The impetus for [unanimity instructions] is
protection of the defendant’s ‘right to have the jury agree unanimously on the
criminal act or acts which supported his conviction.’ [Citation.]â€
(People v. Robbins (1989) 209
Cal.App.3d 261, 264.) Nonetheless, under
an exception for a continuous course of conduct, unanimity instructions are not
required “where a series of acts is so closely connected in time that it forms
part of one transaction.
[Citation.]†(
423.)
Section
422, the criminal threat statute, provides:
“Any person who willfully threatens to commit a crime which will result
in death or great bodily injury to another person, with the specific intent
that the statement, made verbally . . . is to be taken as a threat, even if
there is no intent of actually carrying it out, which, on its face and under
the circumstances in which it is made, is so unequivocal, unconditional,
immediate, and specific as to convey to the person threatened, a gravity of
purpose and an immediate prospect of execution of the threat, and thereby
causes that person reasonably to be in sustained fear for his or her own safety
or for his or her immediate family’s safety, shall be punished . . . .†(§ 422, subd. (a).) “Sustained fear†is fear that is “more than
momentary, fleeting, or transitory.†(
1342, 1349.)
A
unanimity instruction was not required in this case because it was the
continuous and ongoing nature of defendant’s remarks that caused Tapia to be in
sustained fear. Tapia testified that
defendant’s threats were different than other threats Tapia had received and
caused Tapia to be fearful because defendant “was continuously telling [Tapia]
this, threatening [Tapia] on numerous, numerous occasions.†It was the fact that defendant would not stop
making comments to Tapia after Tapia told defendant to “knock it off numerous
times,†that caused Tapia to be in sustained fear and perceive defendant as a
true threat.
Worded
differently, if defendant’s various threats were charged separately, the
charges would likely have failed given Tapia’s testimony because it appears it
was the repeated nature of the threats that caused him to be in sustained
fear. After each individual threat Tapia
continued to go about his business in a professional manner. It was not until there was a culmination of
threats that Tapia felt the sustained fear, causing him to purchase additional
weapons and lighting for his house.
Accordingly, we conclude the trial court correctly elected to not
instruct the jury on the subject of unanimity because defendant’s threats
formed a course of conduct, which meets the exception to the unanimity
instruction requirement.
Defendant
compares this case to People v. Felix
(2001) 92 Cal.App.4th 905, and asserts the instant case should have the same
result as Felix. In Felix,
the defendant made two threats two hours apart from one another. The first threat was made to two parties,
Peel and Valencia,
while the second threat was made to a third party, Luckhart. (Id.
at p. 909.) In determining whether
section 654 should have been applied to the defendant’s sentence, the appellate
court considered the defendant’s contention that his two threats were an
indivisible course of conduct—not two separate crimes. (Id.
at p. 915.) The appellate court
concluded the threats did not constitute a single course of conduct because
they were made hours apart, at different locations, and to different
victims. The appellate court also noted
the defendant had an opportunity to reflect in between the threats. (Id.
at pp. 915-916.)
The
instant case is distinguishable from Felix
because defendant and Tapia were together for most of the time period relevant
to this case—from the arrest to the Banning Jail—there was not necessarily a
moment for defendant to reflect away from Tapia. Also, all the threats in this case were made
to a single victim, which is different from the facts of Felix. Given the foregoing,
we are not persuaded by defendant’s reliance on Felix.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
1. PROCEDURAL
HISTORY
During
motions in limine, the prosecutor moved to introduce evidence of defendant’s
criminal history for the sake of showing why Tapia was in sustained fear and
that Tapia’s fear was reasonable. The
prosecutor wanted to show the jury everything Tapia knew about defendant, such
as defendant’s prior violent crimes, so the jury would better understand the
fear element of the offense. Defendant’s
trial attorney asserted the prior crime evidence should not be allowed because
(1) it would be improper character evidence, (2) discovery had not been
conducted on the prior crimes, and (3) it would involve “multiple level[s of]
hearsay.â€
The
prosecutor responded that the evidence was not being offered for the truth, so
hearsay rules were not applicable. As to
discovery, the prosecutor asserted the defense had been provided with
defendant’s “rap sheet,†which provided defendant’s criminal history. As to the character evidence issue, the
prosecutor asserted there was case law establishing that a victim’s knowledge
of a defendant’s prior crimes is relevant to a charge of criminal threats.
The
trial court concluded it would allow the prior crimes evidence to be offered at
trial. The trial court said, “The Court
will give a limiting instruction to the jury that they’re not to consider this
for any reason other than whether or not the officer or alleged victim did
reasonably have fear for his own safety based on the statements made by the
defendant. So it will be allowed for
that purpose only.†Defendant’s trial
counsel moved the court to “exclude reference to [defendant’s] parole
status.†The trial court agreed the
evidence of defendant’s parole status would be irrelevant and granted the
motion to exclude.
When
Tapia was testifying about the May 19 robbery victim allegedly having been
punched and kicked, defendant’s trial attorney said, “Your Honor, at this
point, I’m going to object.
Relevance. I believe there’s a
limiting instruction that the Court was going to give the jury regarding
these.†The trial court responded,
“Ladies and gentlemen, this evidence or this testimony is allowed for the
purpose of the alleged victim’s state of mind only and not for the truth of the
matters alleged. And with that we’ll
allow this testimony to come forward.â€
Defendant’s trial attorney said, “And I’d just like to make a continuing
objection, Your Honor.†The trial court
noted the objection.
Shortly
thereafter, Tapia testified about the domestic violence incident in which
defendant allegedly “beat his girlfriend†and “chased her with a knife.†Tapia also testified about defendant’s prior
contacts with law enforcement for robbery, assault, battery, terrorist threats,
and first degree burglaries. Tapia
mentioned that defendant was “on active parole.â€
During
cross-examination, Tapia said defendant was never charged with or convicted of
domestic violence. In regard to the May
19 robbery victim, Tapia testified the robbery victim did not appear to have
any injuries, despite claiming to have been kicked in the face. When questioned about the burglaries on
cross-examination, Tapia said he was unsure how many burglary convictions
defendant suffered, but he believed defendant was on active parole for burglary
at the time of the arrest at issue in the instant case.
When
giving jury instructions after the close of evidence, the trial court
instructed the jury, “During the trial, certain evidence was admitted for a
limited purpose. You may consider that
evidence only for that purpose and for no other.†(CALCRIM No. 303.)
2. ANALYSIS
Defendant
contends his trial counsel was ineffective for failing to remind the court to
again give a limiting instruction when Tapia testified about defendant’s
additional criminal history, and failing to object when Tapia mentioned
defendant’s parole status. We disagree.
“Defendant
has the burden of proving ineffective assistance of counsel. [Citation.]
To prevail on a claim of ineffective assistance of counsel, a defendant
‘“must establish not only deficient performance, i.e., representation below an
objective standard of reasonableness, but also resultant prejudice.â€â€™ [Citation.]
A court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance. [Citation.] . . . [C]ounsel’s
decision[]making must be evaluated in the context of the available facts. [Citation.]
To the extent the record on appeal fails to disclose why counsel acted
or failed to act in the manner challenged, we will affirm the judgment unless
counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation.
[Citation.] Moreover, prejudice
must be affirmatively proved; the record must demonstrate ‘a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in
the outcome.’ [Citation.]†(People
v. Maury, supra, 30 Cal.4th at p.
389.)
“Evidence
Code section 355 requires the court to give appropriate limiting instructions
if properly requested. However, the
timing of these instructions is in the trial court’s discretion. [Citations.]
Thus, the trial court is not obliged to give limiting instructions the
moment they are requested or when the limited evidence is presented; subsequent
instruction can be sufficient in a proper case.
[Citation.]†(
533-534.)
Our
analysis focuses on the following portion of the ineffective assistance of
counsel rule: “To the extent the record
on appeal fails to disclose why counsel acted or failed to act in the manner
challenged, we will affirm the judgment unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no
satisfactory explanation.
[Citation.]†(
Defendant’s
trial counsel objected when Tapia initially began testifying about defendant’s
alleged punching and kicking of the robbery victim. The trial court gave a limiting instruction
that was fairly generic. The trial court
said, “Ladies and gentlemen, this evidence or this testimony is allowed for the
purpose of the alleged victim’s state of mind only and not for the truth of the
matters alleged. And with that we’ll
allow this testimony to come forward.â€
Shortly thereafter, Tapia testified about defendant’s additional
criminal history.
Given
the broad or generic nature of the trial court’s limiting instruction,
defendant’s trial counsel could have interpreted the statement as covering most
or all of Tapia’s testimony. Counsel may
have purposely chosen to leave the instruction broad and generic, rather than
requesting a more specific and narrow instruction, to perhaps give the jury the
impression that most or all of Tapia’s testimony was subject to the limiting
instruction—even the testimony beyond that relating to the prior and alleged
crimes. Since there is nothing in the
record indicating why defendant’s trial counsel failed to again request a
limiting instruction, but there is a possible explanation for the failure to
act, we conclude defendant has not met his burden of showing his trial counsel
delivered a deficient performance.
In
regard to trial counsel failing to object to the two mentions of defendant’s
parole status, it is possible counsel made the deliberate choice to not object
so as to not draw more attention to defendant’s status as an active
parolee. (People v. Huggins (2006) 38 Cal.4th 175, 206 [“For example, counsel
could have preferred not to draw the jurors’ attention to particular comments
by the prosecutor by objecting to themâ€].)
Accordingly, there is a possible explanation for counsel’s failure to
respond to Tapia’s testimony about defendant’s parole status. As a result, we conclude counsel’s
performance was not deficient. Since the
first prong was not satisfied, we do not address the prejudice prong.
C. EVIDENCE AT THE SENTENCING HEARING
1. PROCEDURAL
HISTORY
Prior
to trial, during motions in limine, defendant’s attorney moved to exclude a
tape recording of defendant speaking to a law enforcement officer on the basis
of discovery violations. The trial court granted defendant’s motion
and excluded the recording.
At
the sentencing hearing, defendant’s trial counsel told the court he planned to
play the previously excluded audio recording because he believed it included
evidence in mitigation. Defendant’s
trial counsel asked the court if it would want a transcript of the
recording. In response, the trial court
said, “No. The Court is not going to
allow that. It was not allowed at the
time of trial and it’s not appropriate for the Court to consider at
sentencing. I think any reference to
anything that was in evidence is appropriate; however, that was not allowed
into evidence, and it will not be allowed for sentencing purposes as
well.†Defendant’s trial attorney did
not object.
Prior
to sentencing defendant, the trial court considered (1) the probation report,
(2) a “sentencing memorandum provided on behalf of the defendant,†(3) Tapia’s
statement at the hearing, (4) defendant’s uncle’s statement at the hearing, and
(5) defendant’s statement at the hearing.
The trial court imposed the midterm sentence for defendant’s substantive
offense.
2. ANALYSIS
Defendant
contends the trial court erred by not allowing him to present evidence in
mitigation during the sentencing hearing.
We disagree.
title="">[2]
“A
trial court’s decision to admit or exclude evidence is reviewable for abuse of
discretion. [Citation.]†(People
v. Vieira (2005) 35 Cal.4th 264, 292.)
An abuse of discretion “is established by ‘a showing the trial court
exercised its discretion in an arbitrary, capricious, or patently absurd manner
that resulted in a manifest miscarriage of justice. [Citation.]’
[Citation.]†(
145, 195.)
California
Rules of Court provide: “In exercising
his or her discretion in selecting one of the three authorized prison terms . .
. the sentencing judge may consider circumstances in aggravation or mitigation
. . . . The relevant circumstances may
be obtained from the case record, the probation officer’s report, other reports
and statements properly received, statements in aggravation or mitigation, and
any evidence introduced at the sentencing hearing.†(Cal. Rules of Court, rule 4.420(b).) The Penal Code also authorizes a trial court
to consider “any further evidence introduced at the sentencing hearing.†(§ 1170, subd. (b).)
California
Rule of Court, rule 4.423(a) lists a variety of factors in mitigation, relating
to the crime, which a trial court may consider when sentencing a
defendant. Any Apprendi concerns, i.e., that a jury must make the findings related
to sentencing factors, do not appear to apply to factors in mitigation—only
those in aggravation. (
466, 490 [“Other than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubtâ€].)
Nevertheless,
we cannot conclude the trial court acted beyond the bounds of reason by
excluding evidence about the crime that was not presented to the jury. In light of Apprendi, it appears the trial court was taking the cautious path
with the evidence, in that it did not want to consider evidence about the crime
that had been excluded from the jury’s consideration at the request of
defendant. The trial court’s cautious
evidentiary ruling was reasonable because it was defendant who wanted the
evidence excluded at trial, and therefore, we conclude the trial court did not
abuse its discretion.
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
RAMIREZ
P. J.
HOLLENHORST
J.
subsequent statutory references will be to the Penal Code unless otherwise
indicated.
People do not raise a forfeiture argument, despite defendant not raising the
specific issue about presenting mitigating evidence below—defendant only asked
the court if it wanted a transcript.
Since we are not presented with a forfeiture argument, we address the
merits of defendant’s contention.
