P. v. Urbina

Filed 10/18/07 P. v. Urbina 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appellant was convicted of assaulting an elder in a fast food restaurant, and of vandalizing the restaurants property. On appeal, she contends that the prosecutor committed misconduct in his closing argument; that her trial counsel rendered ineffective assistance by failing to object to some of the prosecutors arguments and by failing to request a pinpoint jury instruction; and that the trial judge erred in denying her motion to strike her prior strike. We affirm.

facts and procedural background

On December 13, 2004, Guillermo Conanan, a Filipino man who was then 76 years old, and his wife Genedina Conanan, then nearly 73 years old, were eating in a fast food restaurant in San Francisco. Appellant was also present in the restaurant.

The four witnesses who testified at appellants trialMr. and Mrs. Conanan and two bystanderseach recalled the events at the restaurant somewhat differently. We will not detail their testimony except as it relates to the issues on appeal. Briefly put, all of the witnesses agreed that appellant engaged in some sort of confrontation in the restaurant with people other than Mr. and Mrs. Conanan, shouted racial slurs and profanity, and broke a ceramic container holding a plant that was part of the restaurants decor.[1]

All of the witnesses also agreed that appellant then physically assaulted Mr. Conanan, but their recollection of the details varied. Mr. and Mrs. Conanan, and one of the bystanders, testified that appellant picked up some artificial flowers and dirt from a planter in the restaurant and began throwing these materials at the Conanans. The other bystander testified that appellant suddenly began picking on Mr. Conanan and saying racial things to him, but did not mention her throwing anything at him.

The Conanans both testified that Mr. Conanan stood up and told appellant to stop what she was doing, and that appellant then approached him, grabbed him, and scratched his face and hands. Mr. Conanan testified that appellant also punched him in the stomach. One of the bystanders testified that Mr. Conan stood up, but turned his back on appellant and said nothing to her, and that appellant then came up to the Conanans table and attacked Mr. Conanan. The other bystander also testified that Mr. Conanan stood up in reaction to appellants activities. The next thing this witness noticed was appellant grabbing Mr. Conanan and pulling him down.

All of the witnesses agreed that as a result of appellants attack, Mr. Conanan fell or was pushed down onto his back on a seat or table, causing his glasses to fall off. One of the bystanders went to call 911 at that point, but the other bystander and the Conanans testified that appellant then began choking Mr. Conanan with her hands.

Mr. Conanan estimated that appellant choked him for about 45 seconds, cutting off about 90 percent of his air intake. Mrs. Conanan testified that the choking lasted 3 seconds. The bystander who saw the entire assault testified that appellant stood over Mr. Conanan for 5 or 10 minutes, and that appellant had her arm around his neck like a vise, but did not testify about the length of time appellant spent choking him. Both of the Conanans were afraid that appellant was going to kill Mr. Conanan by choking him.

Mr. Conanan testified that he was able to get appellant to let go of him by grabbing her hair. Once he had done that, she asked him to let go of her, and he said he would do so if she let go of him also. She did, and then left the restaurant.

Both of the Conanans testified that after appellant let go of Mr. Conanan, he was gasping for breath. The Conanans were taken by ambulance to Kaiser Hospital, where they stayed either three hours (according to Mr. Conanan) or seven hours (according to Mrs. Conanan). For about five days after the incident, Mr. Conanans throat was bruised and sore, with a medium amount of pain, and his voice was hoarse.

In an amended information filed March 22, 2005, appellant was charged with: (1) felony elder abuse of Mr. Conanan under circumstances likely to produce great bodily harm (Pen. Code,  368, subd. (b)(1)[2]); (2) felony assault on Mr. Conanan by means of force likely to produce great bodily injury ( 245, subd. (a)(1)); (3) misdemeanor elder abuse of Mrs. Conanan under circumstances other than those likely to produce great bodily harm and death ( 368, subd. (c)); and (4) misdemeanor vandalism of the property of the fast food restaurant ( 594, subd. (a)). The amended information also alleged that appellant had suffered a prior strike conviction for robbery.

The evidentiary portion of appellants trial lasted one day. The jury found appellant not guilty on count 3 (elder abuse of Mrs. Conanan), but guilty on all the other counts. Appellant waived jury trial as to the prior strike allegation, and the trial court found it true. The court denied appellants motions to reduce the felonies to misdemeanors under section 17, subdivision (b), and to strike the strike under People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Appellant was sentenced to the middle term of three years on count 1, doubled to six years due to the prior strike. The court imposed the same doubled three-year term for count 2, but stayed the sentence for that count under section 654. On count 4, the misdemeanor, the court imposed a concurrent one-year jail term.

Appellants trial counsel failed to file a timely notice of appeal. On April 25, 2006, this court granted appellants petition for habeas corpus on that basis, and ordered that she be permitted to pursue this appeal as the remedy. (In re Urbina (April 25, 2006, A113406 [nonpub. opn.].)

discussion

A. Prosecutors Closing Argument

Appellant contends that the prosecutor committed misconduct in his closing argument in two ways: first, by referring to the fact that he had decided not to charge appellant with actually causing great bodily injury, and second, by reading the statement of legislative intent associated with the elder abuse statute under which appellant was charged.

1. Reference to Prosecutors Charging Decision

Appellants defense to the counts charging felony elder abuse and aggravated assault as to Mr. Conanan was that she could be found guilty, at most, of the lesser included offenses of misdemeanor elder abuse ( 368, subd. (c)) and simple assault ( 240), because the prosecution had not proved beyond a reasonable doubt that her attack on him involved circumstances likely to produce great bodily harm or force likely to produce great bodily injury. Accordingly, in his closing argument, appellants trial counsel pointed out that Mr. Conanans injuries were not significant, and that the prosecution had not presented any medical evidence about the extent of the harm caused by appellants assault.

In rebuttal, in order to underscore that proof of the charges did not require proof of actual great bodily injury, but only the use of force likely to cause such injury, the prosecutor told the jury that he was the person who had made the decision not to charge appellant with assault causing significant and serious injury, but only with crimes as to which proof of actual injury was not required. ( 243, subd. (d).) He then added that he wouldnt be here asking for a conviction if [he could not] prove the case beyond a reasonable doubt. Appellants trial counsel did not object to either of the above statements. Appellant now argues that these arguments constituted prejudicial misconduct that could not have been cured by an admonition, or in the alternative, that her trial counsels failure to object and request an admonition constituted ineffective assistance.

We do not see the prosecutors first challenged remark as prejudicial misconduct. If the prosecutor had simply stated that appellant had not been charged with a crime requiring proof of actual great bodily injury, that clearly would have been unobjectionable. The prosecutors actual statement added only the information that he personally had made the decision not to bring such a charge. This was a reference to a fact not in evidence, and as such, was not proper to put before the jury. Standing alone, however, it was not sufficiently material that any resulting prejudice could not have been cured by an admonition.[3] Accordingly, the issue is waived on appeal. (People v. Bonilla (2007) 41 Cal.4th 313, 336 [To preserve a claim of prosecutorial misconduct during argument, a defendant must contemporaneously object and seek a jury admonition. [Citations.]]; People v. Stewart (2004) 33 Cal.4th 425, 484 [defendants failure to object to prosecutors challenged comments or to request curative admonitions bars presentation of misconduct claim on appeal]; People v. Valdez (2004) 32 Cal.4th 73, 123 [claim of prosecutorial misconduct is forfeited where defendant did not object and an admonition could have cured any harm].)

The more difficult issue is the prosecutors additional statement that he would not ask for a conviction if he could not prove the case beyond a reasonable doubt, particularly when read in conjunction with his earlier representation that he had decided not to charge appellant with causing great bodily injury. Taken together, these two statements could arguably be read as vouching for the truth of the charges, by implying that the prosecutor would not have charged appellant unless he knew she was actually guilty.[4] Such a statement would indeed constitute misconduct. (People v. Alvarado (2006) 141 Cal.App.4th 1577, 1585.)

Nonetheless, an admonition would have cured any prejudice resulting from this statement, and we do not find that appellants trial counsel rendered ineffective assistance by failing to object to it. A reviewing court defers to counsels reasonable tactical decisions when examining a claim of ineffective assistance of counsel (see People v. Wright (1990) 52 Cal.3d 367, 412), and there is a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance. (Strickland v. Washington (1984) 466 U.S. 668, 689 (Strickland).) A claim of ineffective assistance of counsel based on trial counsels failure to object to the prosecutors closing argument cannot succeed on direct appeal unless the appellate record discloses  no conceivable tactical purpose   for trial counsels omission. (People v. Lewis (2001) 25 Cal.4th 610, 674-675.) Here, the appellate record does not demonstrate the requisite absence of a conceivable tactical purpose.

A failure to object in closing argument can often be explained by an attorneys tactical determination that: (1) the objectionable statement is not sufficiently damaging to warrant objection; and/or (2) an objection would highlight the objectionable statement (or inference to be drawn from that statement), causing more prejudice than the objectionable statement alone. Given these considerations, and the split-second decision required to lodge a timely objection during an opponents closing argument, courts routinely have recognized that the decision facing counsel in the midst of trial over whether to object to comments made by the prosecutor in closing argument is a highly tactical one (People v. Padilla (1995) 11 Cal.4th 891, 942, overruled on other grounds in People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1), and that a mere failure to object to . . . argument seldom establishes counsels incompetence. [Citations.] (People v. Ghent (1987) 43 Cal.3d 739, 772.)

In the instant case, the record suggests that appellants trial counsels failure to object could easily have been based on permissible tactical considerations. Specifically, appellants counsel had begun his own closing argument with a description of the process that prosecutors go through in determining what charges to bring based on the description of events contained in an arrest report. Having brought up the subject of prosecutorial charging decisions in the first place, it is reasonably likely that counsel made a tactical decision that it would be unwise to object to the prosecutors discussion of the same subject in rebuttal. Counsel may also have believed that objecting to the prosecutors remark would only serve to highlight it. Thus, this is not a situation where there simply could be no satisfactory explanation for counsels failure to object, and reversal on the ground of ineffective assistance of counsel is therefore not warranted. (People v. Gray (2005) 37 Cal.4th 168, 207; People v. Wharton (1991) 53 Cal.3d 522, 567 [finding no ineffectiveness where counsel failed to object to prosecutors reference to evidence outside the record, because counsel might not have wanted to highlight the point with the jury and make it wonder if there really was such evidence]; People v. Milner (1988) 45 Cal.3d 227, 245 [finding no ineffectiveness where counsel would have acted well within the bounds of reasonable competence had he chosen to ignore the statements rather than draw attention to them with an objection].)

2. Reference to Legislative Intent

During the prosecutors rebuttal argument, after reiterating his contention that appellants assault on Mr. Conanan involved circumstances likely to produce great bodily injury, the prosecutor read from the statement of intent enacted as part of the Penal Code section relating to elder abuse.[5] When the prosecutor read the language referring to elders as possibly being confused, on various medications, mentally or physically impaired[,] or incompetent, appellants trial counsel objected on the ground that there was no evidence . . . that any of those things were true in this case. The trial court responded by admonishing the jury that What the lawyers say is not evidence. This is argument. The court then permitted the prosecutor to continue reading the rest of the legislative intent statement.

Appellant now contends that the argument was improper on the ground that it relied on facts not in evidence, but ignores the effect of the trial courts prompt admonition on this point. Moreover, the jury is not likely to have been significantly prejudiced by the prosecutors reference to the Legislatures desire to protect elders from assault, since the relative vulnerability of elders is a matter of common knowledge that the jury would have been entitled to take into account based on its own experience. Indeed, appellants trial counsel mentioned it in his own argument, although contending that it did not apply in this case. Accordingly, we see no prejudicial error in this aspect of the prosecutors argument.

Appellant also claims that the argument was improper because it was designed to appeal to the jurys prejudice, sympathies, or passions. We are not convinced that this was the case. At the most, any such appeal was mild and tangential. Indeed, it is quite possible that appellants trial counsel decided not to object for this reason, and in order to avoid appearing to be callous or unsympathetic to the elderly couple who had testified before the jury. Accordingly, we reject appellants contention that the prosecutors brief reference to the legislative intent portion of section 368 was prejudicial misconduct.

B. Failure to Request Pinpoint Instruction

The pattern instruction on felony elder abuse in effect at the time of appellants trial,[6] CALJIC No. 9.38, states in part that: If an elder . . . is placed in a situation likely to produce great bodily harm or death, it is not necessary that actual bodily injury occur in order to constitute the offense. However, if great bodily injury does occur, its nature and extent are to be considered in connection with all the evidence in determining whether the circumstances were likely to produce great bodily injury or death. (Italics added.) In this case, the prosecutor conceded that Mr. Conanan had not suffered serious bodily injury or great bodily harm. Because of this, the trial court, on its own motion, modified CALJIC No. 9.38 to delete the language italicized in the foregoing quotation.

Appellant now argues that her trial counsel rendered ineffective assistance because he did not request the trial court to substitute language instructing the jury that if great bodily injury does not occur, that fact is also to be considered in determining whether the assault was likely to produce such injury. The standard of review for such claims is well settled. To establish a claim of incompetence of counsel, a defendant must establish both that counsels representation fell below an objective standard of reasonableness, and that it is reasonably probable that, but for counsels error, the result of the proceeding would have been different. (Strickland, supra, 466 U.S. at pp. 686-688, 694-695; People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) To prevail, a defendant must establish incompetence of counsel by a preponderance of evidence. (Id. at p. 218.)

Appellant claims that the instruction her counsel failed to request would have been a correct statement of the applicable law. However, appellant provides no authority for this proposition. We fail to see how a criminal defendants trial counsel renders ineffective assistance by failing to request a jury instruction that is not supported by any legal authority, and we reject the contention of that ground.

Additionally, even if counsel could be faulted for failing to request it, we still find no reversible error, because it does not appear from the record that appellant would have obtained a more favorable verdict if the instruction had been given. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1126 [because ineffective assistance of counsel claim fails on insufficient showing of either element, court need not decide issue of counsels alleged deficiencies before deciding if prejudice occurred].)

Appellants trial counsel made the point in his closing argument that the lack of any serious actual injury to Mr. Conanan implied that appellants assault on him was not likely to have resulted in great bodily injury. Thus, the logical, permissive inference appellant now argues should have been included in an instruction was presented to the jury in another form. Appellant cites several cases holding that trial counsels argument is not an adequate substitute for an instruction. The cited cases, however, all involved situations in which the jury was not instructed on fundamental legal principles that the jury cannot necessarily be expected to apply unless instructed to do so. (See Carter v. Kentucky (1981) 450 U.S. 288, 304 [inference of guilt cannot be drawn from defendants decision not to testify]); People v. Vann (1974) 12 Cal.3d 220, 227, fn. 6 [defendant is presumed innocent and must be proven guilty beyond a reasonable doubt]; People v. Newton (1970) 8 Cal.App.3d 359, 377-378 [involuntary unconsciousness is complete defense to homicide]; United States v. Bernard (9th Cir. 1980) 625 F.2d 854, 857-858 [accomplice testimony must be considered with caution].)[7]

In contrast, the omitted instruction appellant contends should have been given would only have called the jurys attention to a particular factual inference that the jury was permitted, but not required, to draw. The notion that the absence of actual great bodily injury is a relevant consideration in determining whether such injury was likely is a matter of common sense and logic, and the jury therefore does not require formal instructions to understand or apply it.

In addition, the jurys verdict that the assault was with force and under circumstances likely to cause great bodily injury finds ample support in the evidence. Mr. and Mrs. Conanan were both afraid that appellants choking would kill Mr. Conanan; Mr. Conanans ability to breathe was reduced by 90 percent during the choking; and after appellant released Mr. Conanan, she left him gasping for breath. Thus, we are not persuaded that it is reasonably probable that giving the omitted instruction would have resulted in a more favorable outcome to appellant. Appellants ineffective assistance of counsel argument therefore does not warrant reversal of her conviction.

C. Denial of Motion to Strike Prior Strike

In considering appellants motion to strike her prior strike for sentencing purposes under People v. Superior Court (Romero), supra, 13 Cal.4th 497 (Romero motion), the trial court noted that appellant had made recent efforts at rehabilitation, that she had served only one prior prison sentence for a nonviolent theft crime, and that the prior strike dated from 1991. Nonetheless, the court denied the Romero motion, explaining that appellant had a totally unbroken history of 23 years of violent behavior and convictions for it[,] punctuated by one nonviolent conviction. I cannot say in good conscience anything other than this is the type of record and circumstance that they passed the three strikes law for. And I think if I were to strike the strike [i.e., grant the Romero motion], it would mean an abuse of my discretion. I would be reversed. And so I do not think I have the authority. And I am trying to do a weighing analysis. And for the reasons I stated, I refuse to strike the strike under People v. Romero [sic].

Appellant now contends that this was error for two reasons. First, she contends that the trial courts statement that I do not think I have the authority to grant the Romero motion indicates that the court erroneously believed it did not have discretion in ruling on the motion, and therefore failed to exercise that discretion. Second, she contends that the trial court denied the motion based on a mischaracterization of her criminal history, thus abusing its discretion and denying her due process.

On the first point, we decline to read the trial courts remarks, taken in context, as a statement that the court did not have discretion, in the abstract, to grant appellants motion. For a trial court to conclude that in good conscience it can only rule one way on a discretionary motion, because any other course would be a reversible abuse of discretion, is not the same thing as failing to recognize or exercise its discretion. Here, it is clear from the trial courts reference to appellants recent rehabilitation, to a weighing analysis, and to an abuse of my discretion that the court fully understood the nature of the task before it. The courts remark that it did not have the authority to grant the motion was merely an inartful way of declaringas the court went on to clarifythat in light of appellants record, granting the motion would be an act in abuse of the courts discretion.

Moreover, we are not persuaded that the trial court abused its discretion in ruling the way it did. As appellant acknowledges, the question before the trial court on a Romero motion is whether, in light of the nature and circumstances of [the defendants] present felonies and prior serious and/or violent felony convictions, and the particulars of [the defendants] background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though [the defendant] had not previously been convicted of one or more serious and/or violent felonies. (People v. Williams (1998) 17 Cal.4th 148, 161.)

In the present case, the probation report disclosed that appellant had a lengthy criminal history spanning the years from 1982 through 2003, consisting of five misdemeanor convictionsthree for battery, one for assault, and one for obstructing or resisting a police officerand two feloniessecond degree robbery and petty theft with a prior conviction. After her release on parole following her prison term for the petty theft conviction, appellant violated her parole and was returned to custody five times. She was on probation in two separate cases when she committed the crimes involved in the present case.

Appellant argues that the trial court mischaracterized this record as one involving an unbroken history of 23 years of violent behavior, because her misdemeanor convictions for battery, assault, and resisting an officer did not necessarily involve actual violence or the infliction of injury. It is true that the probation report does not spell out the underlying facts of these offenses. Nonetheless, they all inherently involve aggressive behavior towards individualsprecisely the type of behavior involved in the present case. Given appellants pattern of criminal behavior, even if the trial court exaggerated the degree of violence involved in her crimes, we cannot say that the court abused its discretion in declining to find that appellant fell outside the spirit of the three strikes law.

D. Error in Abstract of Judgment

In a footnote in its brief on appeal, respondent avers that an amended abstract of judgment was filed in the trial court on October 6, 2006. Respondent contends that this abstract is on the wrong Judicial Council form, because it should not have been used in a case involving multiple count convictions. Respondent also points out that the amended abstract does not reflect appellants convictions for assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1) and for misdemeanor vandalism ( 594, subd. (a)), or the lower courts order for DNA testing, under section 296.

The amended abstract of judgment is not part of our record on appeal, which was filed in June 2006, so we cannot determine whether respondent is correct. Our disposition directs the trial court to make this determination, and to file a corrected abstract of judgment, if necessary.

disposition

The judgment is affirmed. The trial court is directed to determine whether an amended abstract of judgment needs to be prepared, and if so, to prepare one and forward a certified copy to the Department of Corrections and Rehabilitation.

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Ruvolo, P. J.

We concur:

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Reardon, J.

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Sepulveda, J.

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[1] One of the witnesses was not asked about the breaking of the plant container. Appellants conviction for misdemeanor vandalism resulted from her having broken this container. On appeal, she raises no issues relating specifically to this conviction.

[2] All further statutory references are to the Penal Code unless otherwise specified.

[3] Appellant cites People v. Hill (1998) 17 Cal.4th 800, 820 for the proposition that objections to prosecutorial misconduct are not waived if an admonition would not have cured the resulting harm. In that case, the prosecutor committed a constant barrage of . . . unethical conduct, including misstating the evidence, sarcastic and critical comments demeaning defense counsel, and propounding outright falsehoods, resulting in a trial atmosphere so poisonous as to excuse defense counsels obligation to object to each one of the prosecutors numerous transgressions. (Id. at p. 821.) The prosecutors conduct in this case, even viewed in the worst possible light, did not even remotely approach the level of misconduct found in People v. Hill.

[4] In the context of the prosecutors argument in this particular case, the statement does not appear to have been intended as vouching. Rather, it was uttered at the conclusion of a discussion of the standard of proof beyond a reasonable doubt, which the prosecutor characterized as a high burden that he accepted, and believed he had met. For the sake of argument, however, we assume that it could have been interpreted as vouching for the truth of the charges.

[5] The prosecutor read the following language from section 368, subdivision (a): The Legislature finds and declares that crimes against elders and dependent adults are deserving of special consideration and protection, not unlike the special protections provided for minor children, because elders and dependent adults may be confused, on various medications, mentally or physically impaired, or incompetent, and therefore less able to protect themselves . . . .

[6] The current equivalent instruction is CALCRIM No. 830. It contains the following optional passage: An elder . . . does not need to actually suffer great bodily harm. But if an elder . . . does suffer great bodily harm, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed the offense. (Parentheses in original omitted.) The bench notes to CALCRIM No. 830 explain that [i]f there is a question whether an elder . . . suffered great bodily harm, [the trial court should] give on request the bracketed paragraph stating that a person does not need to actually suffer great bodily harm. [Citations.]

[7] Appellant also cites Wright v. United States (9th Cir. 1964) 339 F.2d 578, 580 for the general proposition that argument is not a substitute for instructions. That case held that the trial courts failure to inform trial counsel of the content of the jury instructions prior to closing argument was reversible error, because it caused defense counsel to rely on an argument that was not supported by instructions. This holding has no application to the facts of this case.