P. v. Daniels

 

 

 

 

 

 

 

Filed 6/12/13  P. v. Daniels CA2/3

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

 

SECOND
APPELLATE DISTRICT

 

DIVISION
THREE

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   Tana Colonial Daniels,               Defendant and Appellant.

B243981         (Los Angeles County       Super. Ct. No. GA086163)

 

 

            APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Darrell Mavis, Judge. 
Affirmed.

 

            California
Appellate Project, Jonathan B. Steiner and Ann Krausz, under appointment by the
Court of Appeal, for Defendant and Appellant.

 

            No
appearance for Plaintiff and Respondent.

>

 

            Defendant
and appellant, Tana Colonial Daniels, appeals from the judgment entered
following a jury trial which resulted in his conviction of the willful
infliction of corporal injury on a “spouse/cohabitant/child’s parent” (Pen.
Code, § 273.5, subd. (a))href="#_ftn1"
name="_ftnref1" title="">[1]
and his admission he previously had been convicted of a serious and violent
felony, assault with a firearm (§ 245, subd. (a)(2)), within the meaning of
section 1170, subdivision (a)(3) and the Three Strikes law (§§ 667, subds.
(b)-(i), 1170.12, subds. (a)-(d)). 
The trial court sentenced Daniels to four years in href="http://www.fearnotlaw.com/">state prison.  We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

            1.  Facts.

            As of 2012,
Shalynn Brownhref="#_ftn2" name="_ftnref2"
title="">[2]
and Daniels had been involved in a relationship for approximately 13 years and
had been married for between three and four years.  The couple had four children.

            Between 3:30 and 4:00
in the afternoon on April 1, 2012,
Brown arrived at the couple’s home at 372 East
Sacramento Street in Altadena.  The children were playing “in the front with
[a] neighbor,” who was watching them.  A
man Brown had dated a few times, Travor Davis, was sitting in his car in one of
the two stalls in Brown’s driveway.  Davis
had never before been to Brown’s home and she did not know how he had gotten
her address.  Brown did not know where Davis
lived as the two generally met at a night club or City Walk.  Davis
knew Brown was married, however Brown had never told Daniels about Davis
and she did not know if Daniels knew about him. 
Davis had never met any of
Brown’s children.

Brown pulled in next to Davis,
got out of her car, then realized that Davis
had gotten out of his car and was standing right behind her.  Brown owed Davis
approximately $200, which she had used to pay for, among other things, her gas
bill.  When Davis
asked her for the money back, she told him that she did not have it and the two
began to argue.  Davis, who was yelling
at Brown, then pushed her into her house and, as they were standing in the dining
room, pulled Brown toward him and hit her in her eye with his fist.  After hitting Brown, Davis
“took off.”

Brown, who suffered a cut under her
eye,href="#_ftn3" name="_ftnref3" title="">[3]
called 911 and, although she and Davis had no children together, she told the
operator that her “baby’s father” had hit her.href="#_ftn4" name="_ftnref4" title="">>[4]  Brown indicated she had lied about who had
hit her because Daniels had been cheating on her and, if he had not done so,
she “probably never would [have been] in this
predicament . . . .” 
She was seeing Davis simply
because Daniels had been having affairs.

When an ambulance and sheriff’s
deputies arrived at Brown’s home, she told the deputies her boyfriend, Travor
Davis, had hit her and she gave to the deputies Davis’s phone number, although
the last time she had tried to call him she had been told the number had been
disconnected.  She also brought up
Daniels.  Brown initially told the police
that her “ ‘boyfriend hit [her.]”  She
then said, “ â€˜Well, Mr. Daniels.’ â€ 
She named Daniels after considering how he had been “cheating and had
several relationships . . . .”

Later that evening, because she was
afraid Davis might come back to her
home, Brown took her children and went to her grandmother’s house in Los
Angeles.  Brown
did not know if Daniels went to their home in Altadena
that night.  Brown, however, saw Daniels
the following day and told him she had been “jumped.”  She did not tell him the injury to her eye
had been inflicted by Davis because
she was “kind of scared.”  Brown still
loved Daniels and wished to remain married to him.

At some point, Brown spoke with a
Detective Ventigan.  When he asked her
who had hit her in the eye, Brown told him it had been Travor Davis.  The detective then asked Brown whether she
was “seeking prosecution in the case” and she told the detective,
“ â€˜No.’ â€  The detective
apparently told Brown they did not need her anyway as they had photographs of
her injury.  Brown indicated that she did
not wish to prosecute Davis because
she was afraid of him and, since she had discovered  he knew where she lived, she had been
attempting to move.

After the April 1st incident, a
case was filed against Daniels.  Once
Brown became aware of the matter, she went to the district attorney’s office to
tell them they were prosecuting the wrong person.  There, someone told her nothing could be done
about it “until the court date.”

Brown again spoke with Detective
Ventigan, who again told her they did not need her as they had “the
pictures.”  The detective also told Brown
he did not believe her and he was “going to go ahead and present [the case] to
the D.A.’s office.”

Brown indicated that, at
proceedings held before the preliminary hearing, she attempted to tell the
prosecutor the wrong person had been charged. 
The prosecutor simply told Brown to “ ‘sit down’ ” and that she had
“ â€˜heard that before.’ â€

On the day of the preliminary
hearing, Brown testified “Travor Davis did it.” 
Brown stated Davis, not Daniels, had been the one who hit her.

At trial, Brown admitted that, when
she called the police after the incident, she had said her “children’s father
or baby’s daddy” had hit her.  She
testified she had said that because “in the heat of the moment at that time
[she was] pissed off, for lack of a better [term], against Mr. Daniels because
[she] didn’t think this would have happened if [they had] had a regular
marriage[.]”  Brown also admitted,
although she and the children lived on Sacramento
Street in Altadena, Daniels
was “rarely there.”

Los Angeles County Deputy Sheriff
Jaime Banuelos was assigned to the Altadena Station.  At approximately 3:30 or 4:00 in
the afternoon on April 1, 2012,
Banuelos and his partner responded to a call directing them to Brown’s home on Sacramento
Street. 
Banuelos understood the incident involved domestic violence. 

After arriving at the address,
Banuelos and his partner, Deputy Abdulfattah, spoke with Brown.  Brown “seemed to be kind of shaken up” and
“looked like she . . . had been crying[.]”  She also “had a gash under her right
eye.”  Although Brown refused any
treatment for her injury, Banuelos and his partner, who believed the cut was
“ â€˜significant,’ â€ called the Fire Department’s ambulance.

Banuelos asked Brown how she had
gotten the injury and she told the deputy “her husband[, Tana Daniels,] had
[done] this to her, [and] that he had struck her with . . . his
closed left fist . . . .” 
When the deputy asked Brown why her husband had done that, she indicated
they had been “having an argument over finances.”  Banuelos asked if there was a place where he
could locate Daniels and Brown gave him an address on West 71st Street in Los
Angeles.  During their conversation,
Brown never mentioned Travor Davis and never indicated “that she had a
boyfriend who had caused the injury on her face[.]”  She did, however, mention Daniels several
times.

Joey Ventigan is a detective with
the Los Angeles County Sheriff’s Department who, in 2012, worked out of the
Altadena Station.  Ventigan was the
detective assigned to investigate the April 1st incident which occurred “between
Shalynn Brown and Tana Daniels[.]” 
Ventigan was assigned to the case on April 4, 2012 and he spoke with
Brown on the telephone that day.  When
Ventigan asked Brown who had caused the injury to her face, she answered,
“[h]er husband, Tana Daniels.”  Brown
never mentioned the name Travor Davis.

2. 
Procedural history.

Following a preliminary hearing, an
information was filed on June 15, 2012 in which Daniels was charged
with one count of “corporal injury to [a] spouse/cohabitant/child’s parent” in
violation of section 273.5, subdivision (a), a felony.  It was further alleged Daniels previously had
been convicted of the serious felony (§ 1192.7) and the violent felony (§
667.5, subd. (c)) of assault with a firearm (§ 245, subd. (a)(2)), requiring
any sentence imposed for the felony alleged in count 1 be served in state
prison pursuant to section 1170, subdivision (a)(3).  In addition, the prior assault subjected
Daniels to the terms of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d)).  At proceedings held on
June 27, 2012, Daniels entered a plea of not guilty to the charge alleged in
count 1.

On September 6, 2012, the matter
was called for a jury trial.  On that
same day, the trial court impaneled a jury of 12 jurors and 2 alternates.  Opening statements and the giving of evidence
began the following day. 

After all the evidence had been
presented, defense counsel made a
motion for entry of a judgment of acquittal (§ 1118.1).  The trial court, however, denied the motion.

Before the parties presented their
arguments, defense counsel objected to the prosecutor showing the photograph of
Brown’s injury on the overhead monitor. 
Counsel argued that to show to the jury such a large image of the wound
would be prejudicial and would serve “no other purpose than to try to influence
the jury just based on the photograph.” 
(See Evid. Code, § 352.)  The
trial court denied the motion, indicating it would allow the prosecutor to
“show [the picture,] then remove it.” 
The court commented, “It’s easier to see [than the photograph] and [the
prosecutor] can make arguments based on it.”

At 3:55 p.m. on September 7, 2012,
after the trial court had instructed the jury and the parties had presented
their arguments, the jurors retired to begin their deliberations.  At 4:05 p.m., the jurors recessed until 9:00
a.m. the following Monday, September 10, 2012.

On the morning of September 10,
2012, the jury requested that the testimony of Deputies Banuelos and Ventigan
be read back to them.  After the testimony
had been read back, the jury resumed its deliberations.  Then, at 2:03 p.m., the jury “buzzed” the
trial court indicating it had reached a verdict.  After defense counsel indicated, if there was
a conviction, Daniels “would waive jury for the prior,” the trial court advised
Daniels of his right to a jury trial, his right to confront and cross-examine
witnesses against him, his right to subpoena witnesses to testify in his
defense at no cost to him and his right to remain silent.  Daniels indicated he understood his rights
and wished to waive them with regard to the allegation he had a prior serious
and violent felony conviction.  The trial
court responded, “Then, if there is a conviction, . . . there will be a court
trial on that.”  The court clerk then
read the verdict, which indicated the jury had found Daniels “guilty of the
crime of corporal injury to [a] spouse, a mother of his child, on or about
April 1st, 2012, in violation of . . . section 273.5[, subdivision] (a), a
felony . . . .”

After reviewing the People’s
“packet,” Daniels indicated he did not wish to have a court trial on the
alleged prior conviction.  Daniels waived
his right to a court trial, then admitted he previously had been convicted of
assault with a firearm in violation of section 245, subdivision (a)(2).

Over the People’s objection,
Daniels asked the trial court for “a couple of weeks” to take care of business
before he surrendered for sentencing.href="#_ftn5" name="_ftnref5" title="">>[5]  After reviewing Daniels’s criminal history,
including his probation report, the court denied the request and remanded
Daniels.  The trial court indicted
Daniels’s history showed that he had committed “crimes of violence,” including
the one he had just been found guilty of, and the court was “not going to take
a chance on that.”

Daniels was sentenced on
September 12, 2012.  At those
proceedings, Brown’s mother, Tracy Davenport, addressed the court and requested
that the court show leniency toward her son-in-law.  Davenport stated Daniels had been a good
father, had made an effort to support his family and, at the time of this
offense, had been starting a business. 
According to Davenport, Daniels was an upstanding young man who had been
like a son to her.  After then hearing
from both counsel, the trial court imposed the low term of two years in state
prison for Daniels’s conviction of the willful infliction of corporal injury on
a spouse, then doubled the term to four years pursuant to the Three Strikes
law.  The trial court commented, although
it had been considering imposing the mid-term, Davenport had persuaded him the
low term was appropriate.  The court
stated it had never before had “the mother [of the victim] come into court” to
speak on behalf of a defendant.

The trial court awarded Daniels
presentence custody credit for 39 days actually served and 39 days of good
time/work time, for a total of 78 days.href="#_ftn6" name="_ftnref6" title="">>[6]  The court ordered Daniels to pay a $240
restitution fine (§ 1202.4, subd. (b)), a stayed $240 parole revocation
restitution fine (§ 1202.45), a $40 court security fee (§ 1465.8, subd.
(a)(1)) and a $30 criminal conviction assessment (Gov. Code, § 70373).

Daniels filed a timely notice of
appeal on September 12, 2012.

CONTENTIONS

After examination of the record,
appointed appellate counsel filed an opening brief which raised no issues and
requested this court to conduct an independent review of the record.  By notice filed March 20, 2013, the clerk of
this court advised Daniels to submit within 30 days any contentions, grounds of
appeal or arguments he wished this court to consider.  After being granted an extension of time
within which to do so, on April 25, 2013 Daniels filed a letter brief in which
he argued several points.  Initially, he
asserted the panel of jurors who tried 
him was “unconstitutionally incompetent.”  Daniels next argued, when the court reporter
read back testimony requested by the jury, she made several errors which
“ma[d]e the testimony difficult to understand.” 
Daniels then contended his trial counsel had been ineffective.  Finally, Daniels asserted he is “not the
person who[] committed this crime.”

With regard to the competency of
the jurors, Daniels referred to the portion of the trial transcript which
reflected the trial court’s explanation to the prospective jurors the nature of
the crime of which Daniels had been accused. 
The trial court then asked Prospective Juror No. 1, “[I]f you had
to do something as ridiculous right now as to vote, guilty or not guilty, how
[would] you vote?”  Prospective Juror
No. 1 responded, “I––I can’t make a call just based on that.”  The trial court then asked the same question
of prospective jurors 2 and 3 and they gave the “[s]ame response.”  The trial court then asked the panel, “Is
there anyone who would have a different response than, you know, ‘I can’t make
a decision right now’?  [¶]  Anybody have a different response than
that?  [¶]  No hands.” 
The court then addressed Prospective Juror No. 4 and stated, “So,
Juror No. 4, we talked about who has got the burden of proof[,]
right?”  Prospective Juror No. 4
responded, “Yes.”  â€œThe prosecutor, the
People there.”  The following colloquy
then occurred:  “The court:  Right. 
[¶]  Prospective Juror
No. 4:  Right.  [¶] 
The court:  So if you have not
heard evidence––[¶]  Prospective Juror
No. 4:  Can’t make a decision
without evidence.  [¶]  The court: 
That’s what most people would think if they were making a decision in
their everyday lives, but in a courtroom where the People have the burden of
proving something beyond a reasonable doubt, if they have not proven it, and
since you haven’t heard any evidence at this point, your vote would have to be
not guilty.  [¶]  Everybody see that?  [¶] 
Prospective Juror No. 4: 
Right.  [¶]  The court: 
That’s what really makes the rubber meet the road in terms of a
presumption of innocence.  You hear that
all the time in movies or maybe on TV or something, but when someone says
presumed innocent, that’s what that means. 
That means unless and until the People can prove the charge beyond a
reasonable doubt, your vote must be not guilty. 
[¶]  So, Juror No. 1, how
would you vote?  [¶]  Prospective Juror No. 1:  Not guilty. 
[¶]  The court:  2? 
[¶]  Prospective Juror
No. 2:  Not guilty.  [¶] 
The court:  3?  [¶] 
Prospective Juror No. 3:  Not
guilty.  [¶]  The court: 
Is there anyone else who would vote something other than not
guilty?  [¶]  I see no hands.”

Based on these proceedings, it
cannot be said the jurors who tried Daniels were “unconstitutionally
incompetent.”  Although they may not have
initially understood the prosecution’s burden of proof, it was clearly
established that, after the trial court discussed it with a number of
individual jurors, each of the prospective jurors understood that in order to
convict Daniels of the alleged crime the prosecution was required to prove him
guilty beyond a reasonable doubt.  A
reading of the record indicates, following its discussion with prospective
jurors 1 through 4, when the trial court asked all of the prospective jurors
if, at that point in the proceedings, there was anyone who would vote other than
that Daniels was “not guilty,” the trial court saw “no hands.”

Daniels next contended that when
the court reporter read back testimony requested by the jury, she made several
errors which “ma[d]e the testimony difficult to understand[.]”  The contention is without merit.  “ â€˜ â€œIt is presumed that official
duty has been regularly performed. . . .”  
(Evid. Code, § 664.)  This
presumption applies to . . . court
reporters . . . .’  (>People v. Wader (1993) 5 Cal.4th 610,
661.)  Therefore we assume the reporter
properly read [back] the testimony [requested] by the jury.”  (People
v. Ayala (2000) 23 Cal.4th 225, 289.)

Daniels’s contention his trial
counsel was ineffective is also without merit. 
“In assessing claims of ineffective assistance of trial counsel, we
consider whether counsel’s 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.]” 
(People v. Carter (2003) 30
Cal.4th 1166, 1211; see Strickland v.
Washington (1984) 466 U.S. 668, 694.) 
If the defendant makes an insufficient showing as to either component,
the claim must fail.  (>People v. Holt (1997) 15 Cal.4th 619,
703.)

Daniels first asserts his trial
counsel failed to consider his objections to various potential jurors and
allowed individuals who had indicated they would not presume him innocent to
remain on the jury.  However the record,
as indicated above, shows all of the potential jurors had indicated they
understood Daniels was to be presumed innocent until the prosecutor proved
otherwise beyond a reasonable doubt. 
Under these circumstances, it cannot be said any of the jurors accepted
by defense counsel would not have presumed Daniels was innocent until the
prosecutor proved him guilty of the alleged charge. 

Daniels asserts, on another
occasion, his counsel became so confused he referred to Travor Davis as “Travor
Daniels.”  During argument, counsel
stated Brown testified “she wouldn’t have been cheating had she been getting
the type of companionship that she needed and that in this tit-for-tat world
she came into contact with this Travor Daniels [(sic)] who she was getting things from, some money and other things
that she alluded to, and that at some point this tit-for-tat resulted in Mr.
Davis assaulting her, and at that point in time, she got revenge.  It was her opportunity to point the finger at
Mr. Daniels.”  Counsel continued, “The
issue here is not whether Tana Daniels hit Shalynn Brown.  It’s not whether Shalynn Brown was
injured.  The issue is that Tana Daniels
did not injure Shalynn Brown because the testimony that you have heard in court
under oath is that he was not even present at 372 East Sacramento Street on
April 1st of 2012.  The complaining
witness admits this under oath.  She
admits she lied . . . .”  In view of the
argument presented by counsel after he mistakenly referred to Travor Davis as
Travor Daniels, it cannot be said Daniels suffered any prejudice.  Counsel’s point was that Brown had lied under
oath and he clearly made that point. 

Daniels next argues, without
consulting him, counsel waived his presence for any read back of
testimony.  While the record indicates
counsel initially stated he was waiving Daniels’s presence, it also indicates
counsel then stated he was going to discuss the matter with Daniels.  From a further reading of the record, it can
be inferred  defense counsel and Daniels
had such a discussion.  When the jury
then requested certain testimony to be read back to them, the prosecutor,
defense counsel and Daniels were present. 


Finally, Daniels contends his trial
counsel was ineffective because he failed to accurately determine the number of
presentence custody credits to which Daniels was entitled.  This, however, was a simple clerical error
which was easily corrected when it was brought to the attention of the trial
court.  Under these circumstances,
Daniels suffered no prejudice from the error.  (See People
v. Holt, supra, 15 Cal.4th at p. 703.)

Daniels final contention is that he
was convicted of a crime he did not commit. 
We note, “[w]hen a jury’s finding of fact is attacked on the ground that
there is not any substantial evidence to sustain it, the power of an appellate
court begins and ends with the determination as to whether, on the entire record,
there is any substantial evidence, contradicted or uncontradicted, which will
support the finding of fact, and when two or more inferences can reasonably be
deduced from the facts, a reviewing court is without power to substitute its
deductions for those of the jury.  It is
of no consequence that the jury, believing other evidence or drawing other
inferences, might have come to a contrary conclusion.”  (People
v. Mendonsa (1982) 137 Cal.App.3d 888, 891, italics in original, citing >People v. Johnson (1980) 26 Cal.3d 557,
576-577.)  Here, a review of the evidence
presented supports the jury’s finding Daniels was guilty of willfully
inflicting corporal injury on Brown. 
Although Brown’s testimony was at times inconsistent, the testimony of
the two law enforcement officers and the tape recording of the 911 call were
not.  All three indicated Brown had
stated Daniels was the individual who had attacked her.  The evidence of Daniels’s guilt was
substantial.

>REVIEW ON APPEAL

We have examined the entire record
and are satisfied counsel has complied fully with counsel’s
responsibilities.  (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)

>DISPOSITION

The judgment is
affirmed.

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

 

 

 

 

 

>                                                                                    KITCHING,
J.

 

 

We concur:

 

 

                        CROSKEY, Acting P. J.

 

 

 

 

 

                                    ALDRICH,
J.