P. v. Kester

Filed 5/25/10 P. v. Kester CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Tehama)

----

Defendant Donald Gene Kester choked his girlfriend, Tamara Jones, and held scissors to her throat when she refused to have sex with him. Shortly thereafter, defendant was stopped by deputy sheriffs. During a pat-down search, it was discovered that defendant, a convicted felon, was carrying a gun. Following a jury trial, defendant was convicted of assault with a deadly weapon and possession of a firearm by a convicted felon. The jury also found true the allegation that defendant had a prior serious felony conviction. Defendant appeals his convictions and the true finding on the prior conviction allegation, contending counsel was ineffective in failing to move for severance of the assault charge from the firearm possession charge, and in eliciting testimony of a prior incident of defendant choking the victim. Defendant also contends CALCRIM No. 220 misstates the law regarding reasonable doubt. We shall affirm.

FACTUAL BACKGROUND

Defendant and Jones, his on-again, off-again girlfriend, had been living together in a trailer home for about a year. Every time defendant got angry with Jones, he would go for her throat. She had called the police once prior to this incident, after defendant strangled her. She also knew defendant had a gun in his possession.

The present incident occurred in the early evening of February 18, 2007, while the couple was lying on the couch. Defendant wanted to have sex, and Jones did not. They argued and defendant began choking Jones with both hands. She had trouble breathing, but managed to break away from him and run to the bathroom. Defendant got a pair of heavy duty kitchen scissors and forced his way into the bathroom. He started choking Jones again and pressed the open blades of the scissors against her neck. He pressed hard enough with the blades to leave a mark on her neck. Jones was scared, but she told defendant to get out or she would call the sheriff. Defendant took the scissors and left.

Jones immediately called the sheriffs department and gave a description of defendant. As Sergeant Frank Bachmeyer drove to the trailer home in response to the call, he saw a man matching defendants description walking along the railroad tracks. He appeared to be talking to himself, raising his arms and waving a shiny metal object. Bachmeyer instructed Deputy Andy Houghtby to continue on to the trailer, while Bachmeyer followed defendant.

Deputy Houghtby spoke with Jones. She was visibly upset, shaking, red in the face, and crying. Her neck was abraded, and it appeared she had been choked and marked by something other than a hand. Houghtby then joined Bachmeyer and they stopped defendant.

Defendant told the deputies he and Jones had argued because he wanted to have sex and she had refused. He grabbed her around the neck and held a pair of scissors to her neck. He quit and went away when Jones told him to.

In a pat-down search incident to arrest, deputies found a small pistol in defendants left rear pocket and a pair of heavy duty kitchen scissors tucked into the front waistband of his jeans. The deputies also learned defendant was a convicted felon, with prior convictions for attempted transportation of cocaine and first degree burglary.

PROCEDURAL HISTORY

Defendant was charged with possession of a firearm by a convicted felon and assault with a deadly weapon. It was further alleged he had suffered a prior strike conviction. Following a jury trial, defendant was convicted of both counts, and the prior conviction allegation was found true. The court granted defendants motion to strike the prior conviction finding. Defendant was sentenced to an aggregate term of three years eight months in state prison, and various fines and fees were imposed.

DISCUSSION

I

Defendant contends trial counsel was ineffective in failing to make a motion to sever the assault with a deadly weapon count from the possession of a firearm by a convicted felon count. He contends such a motion would have been meritorious, as the counts did not involve the same class of crimes and were not connected in their commission. We disagree.

To prevail on a claim of ineffective assistance of counsel, defendant must establish that counsels representation fell below prevailing professional norms and that, in the absence of counsel's failing, it is reasonably probable defendant would have obtained a more favorable result. (Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 698]; People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails. (People v. Holt (1997) 15 Cal.4th 619, 703.)

For a defendant to prevail on a claim of ineffective assistance of counsel based specifically on counsels failure to move for severance, he must show that reasonably competent counsel would have moved for severance, that such motion would have been successful, and that had the counts been severed an outcome more favorable to him was reasonably probable. (People v. Grant (1988) 45 Cal.3d 829, 864-865.) Defendant cannot demonstrate that a motion to sever would have been successful. Counsels failure to make a futile or unmeritorious motion or request is not ineffective assistance. (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 836.) Accordingly, he cannot establish ineffective assistance of counsel in failing to move for severance.

The phrase connected together in their commission as used in Penal Code section 954[1] has been broadly construed. (People v. Smith (2007) 40 Cal.4th 483, 510.) Offenses may be connected together in their commission where there is a close spatial and temporal relationship between them. (Ibid.; People v. Alvarez (1996) 14 Cal.4th 155, 188.)

Here, deputies were called to the trailer home on Hooker Creek Road immediately after the assault. One of the deputies followed defendant for five to ten minutes while the other went to the trailer to speak with Jones. Within minutes of speaking with her, deputies stopped defendant, who was no more than a half-mile away from the residence. After a brief discussion, he was placed under arrest, searched, and the gun was found. It is a reasonable inference that defendant either had possession of the firearm during the assault or took possession of it shortly thereafter. Thus, the possession offense occurred either contemporaneously with, or within minutes of, the assault. It is also a reasonable inference that defendant had possession of the firearm while in the trailer, or took possession of it near the trailer. This is a sufficiently close temporal and spatial relationship to find the offenses were connected in their commission and were properly joinable under section 954.

Where, as here, the statutory requirements for joinder under section 954 are met, severance can be predicated only on a clear showing of prejudice. [I]n the context of properly joined offenses, a party seeking severance must make a stronger showing of potential prejudice than would be necessary to exclude other-crimes evidence in a severed trial. [Citation.] (People v. Soper (2009) 45 Cal.4th 759, 774.)

To have prevailed on a motion to sever, defendant had the burden of demonstrating substantial prejudice requiring that the charges be separately tried. (People v. Bradford (1997) 15 Cal.4th 1229, 1315.) While the determination of prejudice is necessarily dependent on the facts of each case, several guiding factors have emerged: Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a weak case has been joined with a strong case, or with another weak case, so that the spillover effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case. [Citations.] [Citations.] (Ibid.)

Applying those factors here, defendant would not have been able to demonstrate prejudice from joinder of these offenses. The entirety of defendants argument on the issue of prejudice from misjoinder is the prejudice from the firearm charge on [defendants] right to a fair trial on the assault charge is manifest. The presence of the firearm served only to show that [defendant] was a violent person, and therefore more likely to have committed the assault. This argument does not address the relevant factors or prejudice in the context of analyzing a claim of misjoinder.

It is likely the evidence from the two offenses was not cross-admissible; however, the absence of cross-admissibility does not, by itself, preclude joinder. (People v. Hill (1995) 34 Cal.App.4th 727, 735, fn. 2 [citing cases]; see also  954.1.) If the evidence is not cross-admissible, we consider the additional factors as delineated above, and then balance the potential for prejudice to the defendant from a joint trial against the countervailing benefits to the state. (People v. Soper (2009) 45 Cal.4th 759, 775.)

Turning to the other factors, neither of the counts was particularly inflammatory in relation to the other. (See, e.g., People v. Cunningham (2001) 25 Cal.4th 926, 984-985 [joinder of felon in possession of firearm charge with capital murder charge not inflammatory].) Nor did joinder involve consolidating a weak case with a strong one or inappropriately bolstering two weak cases. In the assault charge, there were photographs of the victim taken at the time showing her injuries, her trial testimony, and the statements defendant made to the deputies immediately prior to his arrest. The felon in possession charge rested on the deputies testimony and court records showing his prior felony convictions. Finally, joinder of the charges did not turn the matter into a capital case.

Against this showing, the benefits to the public of joinder were significant: Foremost among these benefits is the conservation of judicial resources and public funds. A unitary trial requires a single courtroom, judge, and court attaches. Only one group of jurors need serve, and the expenditure of time for jury voir dire and trial is greatly reduced over that required were the cases separately tried. In addition, the public is served by the reduced delay on disposition of criminal charges both in trial and through the appellate process. (People v. Bean (1988) 46 Cal.3d 919, 939-940.) For these reasons, defendant would not have been able to establish the prejudice necessary to require severance of the counts, and the trial court would have properly denied a motion to sever. As counsel is not required to make unmeritorious objections, counsel was not ineffective in failing to move for severance.

II

On direct examination, the prosecutor was questioning Jones about the circumstances leading up to the assault when the following exchange occurred:

[DISTRICT ATTORNEY:] Was the argument about sex?

[JONES:] He was doing that too, but he also every time he gets mad he goes after my throat.

Later, in cross-examination, this exchange occurred:

[DEFENSE COUNSEL:] Had there ever been an incident before in which you called the police?

[JONES:] Yeah. It is when he choked me a long time ago when I first met him.

Defendant contends that counsel was ineffective in eliciting this testimony from Jones of a separate incident where defendant choked her. We are not convinced.

The standard for ineffective assistance of counsel is laid out above. If a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsels performance was deficient. [Citation.] (People v. Mayfield (1997) 14 Cal.4th 668, 784.) We find no possible prejudice.

We note that a reasonable tactical explanation for defense counsels question is found in Joness testimony on direct examination. As the Attorney General notes, it was a reasonable tactical choice to ask the question in an effort to minimize Joness testimony. That is, her testimony on direct regarding defendant go[ing] after my throat every time he gets mad could have left an impression with the jury about the severity, intensity, and recency of previous altercations between Jones and defendant. In asking this question, counsel elicited testimony tending to suggest the intensity and severity of the events were not so severe as to require police intervention and clarifying that there was a single incident that occurred a long time ago. This testimony could have mitigated Joness earlier testimony regarding the past violence in her relationship with defendant.

However, even assuming that counsels performance was deficient in eliciting this response, we discern no possible prejudice. We fail to see how the testimony on cross-examination is significantly more damaging than the testimony elicited on direct testimony that every time [defendant] gets mad he goes after [her] throat. Frankly, other than a conclusory statement that he would have received a more favorable result at trial in the absence of this error, defendant makes no such argument.

Here, the evidence against defendant was strong on both counts. The victim immediately reported the assault to law enforcement. Sheriffs deputies took a statement from her that was consistent with her trial testimony. They also photographed her neck, which showed evidence that she had been choked and assaulted by something other than a hand. The deputies detained defendant, and he corroborated Joness version of events in every significant portion. He was carrying the kitchen scissors on his person and had the gun in his pocket. On this record, there is no reasonable probability that the fleeting mention of past incidents between defendant and Jones had any effect on the outcome of this case. Because there is no prejudice, defendants claim fails.

III

Defendants final contention is that CALCRIMs departure from the formulation of Penal Code section 1096, defining proof beyond a reasonable doubt, obscures the scope given to individual subjectivity in that concept and fails to convey the necessary impression of subjective certitude the evidence must induce in the jurors in order to satisfy the due process requirement of proof beyond a reasonable doubt. In other words, defendant claims CALCRIM No. 220 misstates the reasonable doubt standard and is unconstitutional.

This court rejected the same contention in People v. Zepeda (2008) 167 Cal.App.4th 25, 29-32. Indeed, we found the [d]efendants argument borders on the frivolous. (Id. at p. 30.) Nothing in defendants argument causes us to reconsider the issue.

IV

Pursuant to this courts miscellaneous order No. 2010-002, filed March 16, 2010, we deem defendant to have raised the issue (without additional briefing) of whether amendments to Penal Code section 4019, effective January 25, 2010, apply retroactively to his pending appeal and entitle him to additional presentence credits. As expressed in the recent opinion in People v. Brown (2010) 182 Cal.App.4th 1354, we conclude that the amendments do apply to all appeals pending as of January 25, 2010. Defendant is not among the prisoners excepted from the additional accrual of credit. (Pen. Code,  4019, subds. (b)(1) & (c)(1); Stats. 2009, 3d Ex. Sess., ch. 28, 50.) Consequently, defendant, having served 277 days of presentence custody, is entitled to 276 days of conduct credits.

DISPOSITION

The judgment is modified to reflect that defendant is entitled to a total of 553 days of presentence custody credits, consisting of 277 days of actual custody served plus 276 days of conduct credit. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect this modification and to forward a certified copy thereof to the Department of Corrections and Rehabilitation.

RAYE , J.

We concur:

NICHOLSON , Acting P. J.

CANTIL-SAKAUYE , J.

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