P. v. Smith

Filed 7/25/07 P. v. Smith 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

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Convicted of assaulting his fianc and related crimes, defendant David Joe Smith contends: (1) the trial court erred in permitting the prosecution to offer evidence of a prior spousal abuse conviction; (2) the court erred in failing to instruct the jury on mistake of fact as a defense to a burglary charge; and (3) his trial counsel was ineffective in several regards. Finding no error or ineffective assistance of counsel, we will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Rhonda Witter first began a romantic relationship with defendant while he was in jail. She broke off the relationship after his preliminary hearing, but later reentered the relationship after he wrote to her from prison in Susanville.

Defendant was released from prison on May 11, 2005. When Witter picked him up, they had plans to get married, but because they did not have enough money for the wedding, she drove them back to Sacramento. By the time they reached Sacramento, they were already bickering.

The couple spent the night at Witters house. Because their plan was to have defendant live with her, Witter gave him a key to the house and the alarm code.

On the evening of May 12, they had dinner with defendants brother and sister-in-law. Defendant acted childishly at the restaurant. After dinner, they all went to Jans Lounge, where defendant and Witter continued to bicker. Eventually, the bouncer asked them to leave when defendant became very loud. Outside the bar, defendant began screaming about how he was being disrespected, and he backed Witter against a wall and hit the wall hard enough that his knuckles bled and there was blood all over her shirt. Someone called 911, and Witter tried to stall until the police arrived but defendant convinced her to leave just as the police got there.

They drove back to Witters house, and Witter tried to talk defendant into going to his brothers for the night. They went into the house, where they continued arguing. Witter tried to call 911. Eventually, defendant began collecting all of his clothes. Witter told defendant he needed only one set of clothing because she was not kicking him out; she just thought he needed to go and calm down. At that point, defendant tried to strangle her for the first time. Eventually, he let go when the telephone rang. Witter reached for the phone, but defendant threw it against the wall, closed the window, then tried to strangle her again. Again, defendant eventually let go.

As they continued arguing, defendant said things like, you already called 911. I am already going back. It doesnt matter if you are alive or dead. Later, defendant grabbed Witters head twice and tried to break her neck. As she tried to crawl away, defendant crawled on top of her and tried to strangle her a third time. Witter blacked out. When she came to, she demanded that defendant give her keys back, and when he did not, she took them from his pocket. Eventually Witter persuaded defendant to go outside and wait for his brother.

When defendants sister-in-law arrived, Witter went back in the house, locked the door, and paged defendants parole officer. Defendants sister-in-law asked Witter for a change of clothes for defendant, and at that point the parole officer returned Witters page. Witter gave the clothes to defendants sister-in-law while she was on the telephone with the parole officer, and the sister-in-law yelled to defendant about the call, saying something like the bitch is calling your parole officer, youre gonna go back to jail. Defendant jumped out of his sister-in-laws van, and Witter immediately locked the door again. Defendant broke down the door, and Witter ran out the back. Defendant chased her through the house and caught up with her outside, took the phone from her, and threw it at the fence, breaking it. After Witter ran to the neighbors house and told her to call 911, defendant eventually got in the van with his sister-in-law and left.

Defendant was ultimately charged by amended information with assault by means of force likely to produce great bodily injury, making a criminal threat, battery with serious bodily injury, and first degree residential burglary, along with multiple prior conviction allegations.

At trial, a former girlfriend of defendants testified about two incidents in April 1996 when defendant struck her.

The jury found defendant guilty of the assault, criminal threat, and burglary charges but acquitted him of the battery with serious bodily injury charge, finding him guilty instead of simple battery. After defendant waived a jury trial on the prior conviction allegations, the court found them true and sentenced defendant to an aggregate term of 19 years in prison.

DISCUSSION

I

Prior Conviction Evidence

Defendants sister-in-law, Kathy Smith, testified as a defense witness. On direct examination and at the beginning of cross-examination, she testified as a percipient witness to some of the events of May 12. Her testimony, however, veered into character evidence when the prosecutor was examining her about what had happened at Jans Lounge. When the prosecutor asked Smith if defendant was yelling at Witter, the following exchange occurred, beginning with a nonresponsive answer from Smith:

A. David wouldnt do that in front of us.

Q. Okay. How about in a public place, would he do that in a public place?

A. No.

Q. Okay. So he is pretty calm about it?

A. David is very calm, especially around me.

Q. Doesnt lose his cool?

A. Of course. Everybody does.

Q. Okay. But not in public?

A. He is not a vindictive person. He doesnt have it in him like that.

Q. Okay. To yell at somebody or --

A. Women. As long as I have known him, he has never been mean to women. He has always wanted to be loved.

Q. Okay. So he[s] just got sort of a soft spot for women?

A. He definitely does.

Q. He treats them well?

A. Yes, he does.

Q. And he wouldnt be violent to women?

A. No, he knows -- and if David would have, I would have told you.

Q. He wouldnt hit them?

A. No.

Q. Strangle them?

A. No.

Q. Wouldnt yell at them?

A. I am sure he would yell. I mean everybody is human. I never heard -- he never yelled at me and I have been mean to him.

Q. Okay. And would you -- okay. So he may yell at them, but wouldnt do it in public.

A. No, he wouldnt do it. He loved her. You dont understand. He loved her like I love my husband. Thats what he wanted; he wanted a wife.

Subsequently, the prosecutor moved to offer evidence of defendants conviction for spousal abuse in 1996 to rebut Smiths testimony. Defendant opposed the motion, arguing that [t]he way to impeach Miss Smiths opinion [of defendant] would have been to confront her with evidence to the contrary and ask if she were aware of that or if it would cause her to change her opinion. The court granted the motion, stating that the prosecutor should be permitted to bring in that evidence because, when you open character, you open a door, and she sure opened the door widely and said, Hes a sweetheart, he would never hurt anyone . . . .

On appeal, defendant contends the trial court erred in admitting the spousal abuse conviction as rebuttal evidence. First, defendant complains that he did not open the door because he did not elicit any character evidence from Smith on direct examination. While that may be true, it is immaterial. Smith unquestionably testified that defendant was not the sort of person who was violent toward women. Defendant fails to explain why the prosecutor should have been prohibited from rebutting that testimony with evidence of defendants prior conviction for spousal abuse simply because the testimony favorable to defendant came out on cross-examination.

To the extent defendant complains that the prosecutor improperly solicited testimony on defendants character from Smith, just so she could later introduce so-called rebuttal evidence of his conviction, the record does not support that argument. It was Smith, not the prosecutor, who first broached the subject of defendants character. When the prosecutor asked Smith if defendant was yelling at Witter at Jans Lounge, Smith could have simply responded, no. Instead, she volunteered information about defendants character -- David wouldnt do that in front of us. The prosecutor was entitled to explore what Smith meant by her answer. When the prosecutor did so, Smith further volunteered that defendant had never been mean to women. Thus, as the trial court noted, it was Smith herself who opened the door on the issue of defendants character. Under these circumstances, the trial court properly allowed the prosecutor to offer evidence rebutting Smiths testimony.

Defendant next argues that because the events underlying the prior conviction occurred nearly 10 years before the events underlying this case, a careful balancing analysis under [Evidence Code] section 352 was required but did not occur. Defendant made no such argument in the trial court and cannot make it for the first time on appeal. (See, e.g., People v. Demetrulias (2006) 39 Cal.4th 1, 19-21 [defendants failure to make a timely and specific objection on the ground asserted on appeal makes that ground not cognizable].) In any event, the evidence of defendants conviction for spousal abuse was highly probative for purposes of rebutting Smiths testimony that defendant had never been mean to women, and it carried a low risk of undue prejudice given that the victim of the incident underlying the prior conviction (defendants former girlfriend) had already testified about the underlying incidents in the prosecutions case-in-chief.

Finally, defendant reiterates the objection he offered in the trial court -- namely, that [t]he proper way to attack [Smiths] opinion was to test it by questioning her about events that tended to be inconsistent with the opinion . . . not to present evidence inconsistent with the opinion. Defendant offers no authority in support of this argument, however, and therefore we deem it forfeited. (See Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1794.)

II

Mistake Of Fact Instruction

Defendant contends the trial court erred in failing to instruct the jury sua sponte on mistake of fact in relation to the burglary charge because a reasonable jury could have concluded he was mistaken in thinking he had an unconditional right to enter Witters home when he broke down the door. We find no error.

An act committed under a mistake of fact which disproves any criminal intent is not a crime. (See Pen. Code, 26, class Three.) However, the failure to instruct on a defense -- sua sponte or even at the defendants request -- is not error if there was no substantial evidence supporting the defense. (See People v. Rivera (1984) 157 Cal.App.3d 736, 743.)

A person who has an unconditional possessory right to enter a residence may not be convicted of burglary for entering that residence, even for a felonious purpose. (People v. Pendleton (1979) 25 Cal.3d 371, 382.) Defendant contends the trial court should have instructed on mistake of fact as a defense to the burglary charge here because there was substantial evidence that he mistakenly believed he still had an unconditional possessory right to enter Witters home when he broke down the door. To support this argument, he relies on Witters testimony that she told him she was not kicking him out; she just thought he needed to go and calm down.

The flaw in this argument is that it relies on only part of Witters testimony taken out of context. It is true Witter testified that she initially told defendant she was not kicking him out. After that, however, defendant tried to strangle her three different times and tried to break her neck. Moreover, after she recovered from blacking out following defendants third attempt to strangle her, Witter forcefully took her keys from defendant after he refused to give them back at her demand. Defendant then left the house, returning to break down the door only when his sister-in-law told him Witter had called his parole officer.

Viewed as a whole, Witters testimony would not reasonably have supported a jury finding that defendant honestly, but mistakenly, believed he continued to have an unconditional possessory right to enter Witters home at the time he broke down the front door. Because there was no substantial evidence to support a mistake of fact defense, the trial court did not err in failing to give a mistake of fact instruction.

III

Ineffective Assistance Of Counsel

Defendant contends his trial counsel was ineffective because he: (1) failed to object to evidence of defendants preoffense incarceration; (2) failed to object to the prosecutors cross-examination of Smith that exceeded the scope of direct and opened the door to evidence of bad character; and (3) failed to request a mistake of fact instruction on the burglary charge. We disagree.

As to the last assertion, our prior discussion of the mistake of fact issue is dispositive. Since there was no substantial evidence to support a mistake of fact defense, trial counsels failure to request a mistake of fact instruction did not constitute ineffective assistance. (See People v. Dennis (1998) 17 Cal.4th 468, 541 [claim of ineffective assistance premised on failure to request jury instruction must fail where defendant was not entitled to such instruction].)

With respect to the cross-examination of Smith, no ineffective assistance of counsel appears because no objection was warranted, except perhaps to Smiths nonresponsive answer, David wouldnt do that in front of us, which is what opened the door to the prosecutors entire line of questioning touching on defendants character. (See People v. Lewis (2001) 26 Cal.4th 334, 359 [Where there was no sound legal basis for objection, counsels failure to object to the admission of the evidence cannot establish ineffective assistance].) Once Smith gave that answer, the prosecutor was entitled to explore the issue. And as for objecting to that first nonresponsive answer, trial counsel certainly could have had a reasonable tactical basis for not doing so, namely, the answer was favorable to defendant. Indeed, trial counsel could have reasonably determined that the benefits of allowing Smith to give positive testimony about defendants behavior toward women outweighed any potential harm that might be done if the prosecution were later allowed to rebut that testimony with evidence of defendants prior conviction for spousal abuse -- especially given the fact that the victim of that abuse had already testified about the incidents underlying the conviction. In short, trial counsel was not ineffective in failing to object to the prosecutors cross-examination of Smith regarding defendants character.

The only question remaining is whether trial counsel could have had a reasonable basis for not objecting to Witters protracted testimony about [his] incarceration. Before trial, the prosecutor, defense counsel, and the trial court all agreed there was no way to present the evidence in this case without disclosing to the jury that this [was] a relationship and engagement occurring while in prison and that she [wa]s greeting him on his return from prison. Defense counsel asserted he had given that some considerable thought and did not see any way around that. Appellate counsel disagrees with that assessment, arguing that Witters testimony about their pre-offense relationship . . . was irrelevant[ and] unduly prejudicial. In appellate counsels view, all the jury needed to know was that defendant and Witter carried on a long distance relationship by mail and telephone, and that on May 11, 2005, Witter drove to Susanville to meet [defendant], pick him up, marry him, and take him home.

In support of his argument that his trial counsel should have objected to evidence of his preoffense incarceration, defendant cites cases in which evidence of the defendants prior criminal history was purely gratuitous and immaterial to the case. (People v. Allen (1978) 77 Cal.App.3d 924, 934-935; People v. Stinson (1963) 214 Cal.App.2d 476, 480-481; People v. Ozuna (1963) 213 Cal.App.2d 338, 342; People v. Figuierdo (1955) 130 Cal.App.2d 498, 505-506.) Those cases are of no assistance, however, because that was not the situation here.

We agree with the trial court, the prosecutor, and defendants trial counsel that it would have been impossible to accurately present the facts of this case to the jurors without letting them know about defendants prior incarceration. For example, defendants parole officer testified about what he heard while he was on the telephone with Witter during her fight with defendant, about meeting with Witter after the incident, and about the condition of the house as he saw it during that meeting. Defendant fails to explain how the officers highly relevant testimony on all of those subjects could have been presented without the jury learning that defendant was on parole.

Similarly, the statement that was the basis for the charge of making a criminal threat was defendants statement to Witter, you already called 911. I am already going back. It doesnt matter if you are alive or dead. Defendant fails to explain how the jury could have understood this statement without being informed through other evidence that defendant had just been released from prison and thus was obviously referring to going back to prison.

As another example, Witter testified that defendant broke down her door -- the basis for the burglary conviction -- after his sister-in-law told him that Witter had called his parole officer. Defendant fails to explain how the fact of his prior incarceration (as reflected in the fact that he had a parole officer) could have been excised from the case without irreparably distorting Witters testimony underlying the burglary charge.

In short, defendant fails to persuade us that an objection to Witters testimony about his preoffense incarceration would have been successful, inasmuch as defendants incarceration was inextricably part of the case against him. Accordingly, trial counsel was not ineffective for failing to object to that evidence.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

BLEASE , Acting P.J.

HULL , J.

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