P. v. Villalobos

Filed 6/9/06 P. v. Villalobos CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Michael D. Wellington, Judge. Affirmed.

Angel Villalobos was convicted of two counts of attempted premeditated murder and mayhem after a jury rejected his claim of self-defense. On appeal, he argues the judgment should be reversed because his counsel failed to object to the admission of uncharged misconduct evidence. We reject his argument and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Evidence Pertaining to the Charged Offenses

Around 7:00 p.m. on May 26, 2004, Villalobos went to the trailer where his friend Benito Bautista resided. Villalobos showed Bautista a knife and told Bautista that a drug dealer named "Bombari" wanted Villalobos and Bautista killed.^[1] About 8:00 p.m., Adrian Velazquez and Oscar Chavez knocked on the door of Bautista's trailer. According to Villalobos, Bombari had sent Velazquez and Chavez to perpetrate the killings. When Velazquez and Chavez entered the trailer, Villalobos surreptitiously climbed outside through a hole in the ceiling to the top of the trailer. Bautista, Velazquez, and Chavez stayed in the trailer and smoked methamphetamine together.

About five or 10 minutes later, Villalobos reentered the trailer through the door. According to Bautista, Villalobos suddenly pulled out a knife, grabbed Velazquez, and repeatedly stabbed him. With Velazquez lying wounded on the floor, Villalobos stabbed Chavez, who was sitting on the couch. The knife handle broke while Villalobos was stabbing Chavez. Villalobos pulled a pellet gun from the waistband of his pants and shot both Velazquez and Chavez. Chavez fled the trailer and Villalobos chased him. Velazquez also ran out of the trailer.

At trial, Bautista was called to testify on behalf of the prosecution and Villalobos testified on his own behalf.^[2] Both Bautista and Villalobos testified that at one point during the attack, Bautista kicked Chavez and asked Chavez "who wants to kill us?" Chavez responded that Bombari had sent them. However, according to Bautista, neither Velazquez nor Chavez had any weapons and they did not make any threats prior to Villalobos's attack. In contrast, Villalobos testified that when he entered the trailer, Chavez had a gun; Chavez told Villalobos "how easy it was . . . for him to get" Villalobos and that "he had a mission to comply with"; and Chavez advanced towards Villalobos with the gun in his hand. Villalobos testified that Chavez dropped the gun when he was stabbed, and thereafter another person (whose identity was unknown to Villalobos) came to the door, picked up Chavez's gun, and left.

Villalobos also described visits to his residence by several individuals, including Bombari and Chavez, during the two days preceding the charged offenses. During the visits, the men made statements that Villalobos interpreted as meaning they were looking for an opportunity to kill him.^[3] Further, several hours before Villalobos encountered Chavez and Velazquez at Bautista's trailer, Chavez and Velazquez had twice arrived at Villalobos's residence, but Villalobos avoided them by staying quiet and pretending he was not at home.

The day after he committed the attack at Bautista's trailer, Villalobos talked to his boss (Charles Mundo), who persuaded him to turn himself in to the police. When he was interviewed by the police, Villalobos did not mention that one of the victims had a gun.

Villalobos apparently suffered no injuries from the incident. Velazquez was cut deeply across his neck, had a gun pellet in his neck, and had lacerations on his chest, back, and forearm. Chavez had a large laceration on his face, a deep laceration to his arm, and a stab wound in his neck. One of the men (apparently Chavez) had a gun pellet in his scalp.

Uncharged Misconduct Evidence

In a motion in limine, Villalobos's counsel moved to exclude evidence regarding a fight in which Villalobos was involved while in jail awaiting trial for the current offenses. The prosecutor responded that he did not intend to introduce the evidence during the prosecution's case in chief. However, the prosecutor stated he might seek to use the evidence if Villalobos elected to testify; for example, if Villalobos claimed his superior fighting skills explained his lack of injuries during the charged offenses, the prosecutor might use the evidence of the jail fight (during which Villalobos was injured) to rebut such a claim. The court noted that evidence about the jail fight might also be admissible if Villalobos presented character evidence showing his peaceful and noncombative nature. Based on the prosecutor's stated intent not to introduce the jail fight evidence during the prosecution's case in chief, defense counsel agreed the in limine motion was resolved.

During trial, the defense presented good character testimony from Mundo, who had worked with Villalobos for several years. Mundo testified that Villalobos was a peaceful person. During direct examination of Mundo, defense counsel asked, "[I]f I were to tell you that he had got into an altercation, a fight, with another individual in jail while he was incarcerated for this offense, would that change your opinion about him?" Mundo responded "[n]o." On cross-examination of Mundo, the prosecutor asked Mundo if his opinion of Villalobos would change if Mundo heard that "the facts of the offense in jail were that [Villalobos] picked on somebody else, he started it; the other guy ended up finishing him, but he started it[.]" Mundo acknowledged that if he heard more facts, maybe he would have a different opinion.

After Mundo's testimony was finished, Villalobos testified. During cross-examination, the prosecutor questioned Villalobos about the details of the jail fight. According to Villalobos, he was writing while lying on his bunk, and the inmate in the bunk above him became annoyed at the light tapping sound he was making. The two men "exchanged words" and then engaged in a fistfight. Villalobos denied that he swung first. Villalobos suffered a bloody nose, and then slipped on the blood and hurt his arm. After eliciting the details of the fight, the prosecutor asked Villalobos, "So my question for you is this, sir: how is it that you have a one-on-one fistfight with a guy in jail, get a bloody nose and a hurt arm, . . . yet, two guys come to kill you with a gun and you don't have a scratch?" Villalobos responded that there was a difference "between a fight and an intent to kill somebody." On redirect examination by defense counsel, Villalobos testified that he did not hit the inmate during the jail fight, no weapons were involved, he was the only one hurt, and he had never been involved in any other fights in his life.

During closing argument to the jury, the prosecutor argued that Villalobos's claim of self-defense was not plausible because of a variety of circumstances, including the fact that Villalobos sustained no injuries during his commission of the charged offenses. To buttress the evidentiary inferences arising from the lack of injury to Villalobos, the prosecutor repeatedly pointed to the fact that Villalobos did sustain injuries during the jail fight.^[4]

Jury Verdicts

The jury rejected Villalobos's claim of self-defense and convicted him of attempted premeditated murder and mayhem, with enhancements for personal use of a knife and personal infliction of great bodily injury.

DISCUSSION

Villalobos argues that the evidence regarding the jail fight elicited by the prosecutor was improperly admitted. Villalobos concedes that defense counsel did not object to admission of this testimony, but argues the issue should be considered on appeal because defense counsel's failure to object constituted ineffective representation.

Generally, a defendant's challenge to the admissibility of evidence is waived on appeal if the defendant failed to raise "'"a specific and timely objection in the trial court on the ground sought to be urged on appeal."'" (People v. Champion (1995) 9 Cal.4th 879, 918; People v. Wader (1993) 5 Cal.4th 610, 636; Evid. Code, § 353, subd. (a).) However, relief may be obtained if the defendant shows defense counsel's failure to object to admission of the evidence violated the defendant's constitutional right to effective assistance of counsel. (See People v. Wader, supra, 5 Cal.4th at p. 636; People v. Smithey (1999) 20 Cal.4th 936, 965.)

To demonstrate ineffective assistance of counsel, the defendant must show that defense counsel "fail[ed] to perform as a reasonably competent attorney, and it is reasonably probable that, absent counsel's deficiencies, a more favorable result would have been obtained." (People v. Wader, supra, 5 Cal.4th at p. 636.) It is defendant's burden to show inadequacy of trial counsel, and reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance. (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, and to obtain relief on direct appeal the record must affirmatively disclose that counsel had no rational tactical purpose for his or her act or omission. (Ibid.) "[I]f the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation . . . .'" (People v. Cudjo (1993) 6 Cal.4th 585, 623.)

The record contains no explanation or request for explanation about defense counsel's failure to object to the prosecutor's questioning about the jail fight. As we shall explain, Villalobos's incompetency assertion fails because the record does not show there could be no rational tactical purpose for counsel's omission.

Initially, we note that Villalobos does not raise--and the record would not support--a contention that defense counsel was incompetent for questioning Mundo about whether his opinion would change if he heard about the jail fight. This line of questioning on direct examination of Mundo was a reasonable tactical approach given that it was virtually certain the prosecutor would properly raise this issue on cross-examination of Mundo. Although evidence of a defendant's uncharged misconduct is generally inadmissible to show bad character or criminal propensity (People v. Catlan (2001) 26 Cal.4th 81, 145; Evid. Code, § 1101, subd. (a)), when a defense witness testifies about the defendant's good character traits, the prosecutor may test the validity of the witness's opinion or reputation testimony by asking limited questions about whether the witness has heard of acts by the defendant inconsistent with those character traits (Evid. Code, § 1102, subd. (b); People v. Ramos (1997) 15 Cal.4th 1133, 1173; People v. McKenna (1938) 11 Cal.2d 327, 335-336; People v. Hempstead (1983) 148 Cal.App.3d 949, 953-954). However, under this rule of admissibility the prosecutor may not present independent proof of the uncharged misconduct, but may only cross-examine the good character witness in limited fashion. (People v. Felix (1999) 70 Cal.App.4th 426, 431-433; see People v. Lopez (2005) 129 Cal.App.4th 1508, 1528.)

Here, there was no error in the prosecutor's limited cross-examination of character witness Mundo regarding the jail fight for purposes of testing his opinion testimony. To the extent Villalobos's challenge to the admission of the jail fight evidence is based on the prosecutor's cross-examination of Mundo, the argument fails.

Thereafter, when Villalobos took the stand and the prosecutor examined him in a fashion that introduced independent proof of the jail fight, defense counsel knew that the jury had already been properly apprised of the possible jail fight via the examination of good character witness Mundo. Defense counsel could reasonably determine that it was better for Villalobos to be given an opportunity to give his version of the jail fight than to seek to exclude the evidence elicited by the prosecutor.

Further, defense counsel could reasonably conclude that any objection would have been futile because the evidence was properly admissible for a purpose other than to show Villalobos's criminal propensity--i.e., to rebut Villalobos's claim of self-defense. Although uncharged misconduct evidence is inadmissible when its sole relevancy is to prove criminal propensity, it is admissible "when relevant to prove some fact . . . other than [the defendant's] disposition to commit" a criminal act. (Evid. Code, § 1101, subd. (b); People v. Catlin, supra, 26 Cal.4th at pp. 145-146; People v. Ruiz (1998) 62 Cal.App.4th 234, 240.) Consistent with this rule allowing admission for nonpropensity purposes, the courts have held that uncharged misconduct evidence is admissible if it is relevant to rebut a defense presented by the defendant. (People v. Terry (1970) 2 Cal.3d 362, 396, disapproved on other grounds in People v. Carpenter (1997) 15 Cal.4th 312, 381-382; People v. Vidaurri (1980) 103 Cal.App.3d 450, 459; People v. Moody (1976) 59 Cal.App.3d 357, 361.) The rule allowing admission of uncharged misconduct evidence when relevant to prove a fact other than criminal propensity is subject to the trial court's exercise of its discretion under Evidence Code section 352 to exclude the evidence if necessary to avoid undue prejudice, confusion, or time consumption. (People v. Lewis (2001) 25 Cal.4th 610, 637.)

It is probable that had defense counsel objected to the prosecutor's cross-examination of Villalobos regarding the jail fight, the trial court would have ruled that the evidence was relevant for the nonpropensity purpose of rebutting the claim of self-defense based on the lack of injury during the charged offenses as compared to injury suffered during the jail fight. Further, it is unlikely the trial court would have exercised its discretion under Evidence Code section 352 to exclude the evidence. The testimony was relatively brief and was used by the prosecutor for the permissible purpose of challenging Villalobos's self-defense claim rather than to show that Villalobos had a propensity to fight. Further, Villalobos's conduct during the jail fight was benign compared to the facts of the charged offenses; thus the evidence did not create a danger of provoking emotional bias. (See People v. Jenkins (2000) 22 Cal.4th 900, 1008.)

Given that there may have been a reasonable tactical purpose not to object to the uncharged misconduct evidence and that any such objection would likely have been futile, Villalobos has not carried his burden to show ineffective representation arising from defense counsel's failure to object. Accordingly, his challenge to the judgment fails.

DISPOSITION

The judgment is affirmed.

HALLER, J.

WE CONCUR:

BENKE, Acting P. J.

AARON, J.

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^[1] According to Villalobos, the threat from Bombari arose when Villalobos told Bombari he wanted to stop selling drugs with him. Bombari, who was unhappy with this decision, told Villalobos that "it was not very easy to leave the selling of drugs." Further, Villalobos claimed Bombari also wanted to kill Bautista because Bombari thought Bautista was selling drugs and stealing Bombari's customers.

^[2] The victims did not testify.

^[3] According to Villalobos, during these unwelcome visits, Bombari and Chavez on one occasion discussed whether "it was the right time . . . to take action against" Villalobos, and on another occasion late at night the men stated, "'why not now,' that that was the right moment."

^[4] For example, the prosecutor argued, "The idea that [Velazquez and Chavez] raised a hand against him? No. If they had done that, we would have seen injuries on the defendant. [¶] This is the very same man that gets into a fight in jail after . . . he gets booked into jail. There's a one-on-one fight, and he gets a bloody nose and a hurt arm. [¶] He takes on, he says two hitmen. One of them has a gun, and there isn't a scratch on [Villalobos]. . . . [¶] . . . .[¶] . . . He's not Bruce Lee. . . . We know that because of the fight in the jail. . . . [¶] . . . .[¶] [H]ow do you take on one guy one-on-one, get your nose bloodied and your arm hurt, and you're able to take on two, supposedly one of which is armed, killers without a scratch to yourself?"