P. v. Bahena

Filed 8/16/06 P. v. Bahena CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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, William J. McGrath, Judge. Affirmed.

Enrique Bahena appeals a judgment entered following his jury conviction of residential burglary (Pen. Code, § 459)^[1] and vandalism over $400 (§ 594, subds. (a), (b)(1)). On appeal, Bahena contends (1) the evidence is insufficient to support his residential burglary conviction, and (2) he was denied his constitutional right to effective assistance of counsel.FACTUAL AND PROCEDURAL BACKGROUND

At about 9:30 a.m. on July 25, 2004, San Diego County Sheriff's Deputy Richard Phillips arrived at a house on Gladiola Drive in Campo in response to a dispatch regarding a possible break-in and vandalism. He met the owners of the house, Mr. and Mrs. Ward, who did not live there. Their daughter, Cheryl Ward (Cheryl), lived in the house. They told him the house appeared to be vandalized or "trashed" inside. They also noted that a rock walkway under construction had been destroyed. Because the Wards had been unable to contact their daughter, Phillips left and asked them to call when their daughter returned home.

Early that afternoon, Phillips was informed Cheryl had returned to the house. He returned to the house and met with Cheryl, her parents, and her friend Kasey Haynes (Kasey). Phillips entered the house and saw extensive damage inside (described at trial as "complete destruction"): furniture and electronic equipment, including a television, stereo and fax machine, were broken, torn up and tipped over; food and liquid were splattered over the walls; dishes were broken; the bathtub was filled with water and contained notebooks and papers; the toilet was stuffed with toilet paper; and water soaked the carpeted floor. Female clothing had been bleached, cut up, and strewn around. In the many photographs displayed throughout the house, Cheryl's face had been sliced. Phillips did not see any male clothing in the house. Phillips spoke with Cheryl and obtained her detailed statement.

On learning that Cheryl's dog was at the Weldy's house nearby, Phillips drove there and saw Bahena's truck parked outside. A bed, table, and chairs were near the truck. Phillips took photographs of those items, returned to the Gladiola house, and showed them to Cheryl. She confirmed those items had been in her house the previous night. Phillips followed Cheryl's car to the Weldy's house to get her dog. He then followed Cheryl as she walked toward and entered the Weldy's guesthouse. After Cheryl took her dog and returned to her car, Mr. Weldy told Phillips that Bahena was inside the guesthouse. Phillips entered the guesthouse and looked for Bahena. After he told Bahena to come out from behind a locked door, Bahena eventually came out. When Phillips asked Bahena why he did not come out initially, Bahena replied that he knew there was an outstanding warrant for his arrest.

Phillips took Bahena to the sheriff's substation and advised him of his Miranda rights.^[2] Bahena waived those rights and agreed to answer Phillips's questions. He initially denied any knowledge of the occurrence at the Gladiola house. He said he had seen Cheryl's parents at the house earlier that day and told them he did not know what happened and had not lived there for two months. On further questioning, Bahena admitted he vandalized the house. He stated he and Cheryl had decided to take some time apart (but not to date others) and he had moved out of the house. At about 2:30 a.m. the previous night, Bahena received a call from a friend who told him Cheryl was at a bar with another man. Bahena called Cheryl, and she lied about where she was and refused to answer his questions. Because Bahena was angry, he went to Cheryl's house and vandalized it. Bahena stated that another person whom he refused to identify was with him when he vandalized the house.

During Phillips's various interviews with Cheryl that day, she told him about the telephone call she received from Bahena the previous night. During the call, Bahena told her: " 'Wait until you see what I do to you.' " She stated she believed Bahena was responsible for the damage to her house and property. She told Phillips that Bahena had moved out of her house a couple of months before the incident. By mid-July, he had removed all of his clothes and other belongings, except the bed, table, and chairs.

An information charged Bahena with residential burglary (§ 459) and vandalism of property with damage over $400 (§ 594, subds. (a), (b)(1)). It also alleged that Bahena had two prior prison terms within the meaning of section 667.5, subdivision (b), a serious felony prior conviction within the meaning of section 667, subdivision (a)(1), and a prior serious or violent felony conviction within the meaning of sections 667, subdivisions (b) through (i), and 1170.12.

At trial, Cheryl testified she and Bahena were now married.^[3] They had moved into the Gladiola house in September or October 2003 and Bahena was living there on July 24, 2004. She described the events the night of the incident, including the telephone call she received from Bahena while she was at a bar with a male friend. After her parents called her the following morning about damage to her house, she returned home with her friend Kasey accompanying her. She saw the damage to the house and her personal property. Deputy Phillips arrived at the house about 20 minutes after Cheryl's arrival. He questioned her about the damage and events that occurred the previous night. He also asked her about the status of her relationship with Bahena. She replied that she and Bahena were not together, explaining they were having problems. She told Phillips she and Bahena had an argument in May 2004 during which he (Bahena) had slapped her.^[4] She and Bahena then reevaluated their relationship. Cheryl initially testified she told Phillips Bahena moved out of the house for a few days thereafter and then returned. However, she then admitted she told Phillips she had decided to end her relationship with Bahena and he (Bahena) began moving out of the house in early June.^[5] She admitted it was possible she told Phillips that by mid-July all of Bahena's property was out of the house. She denied telling Phillips that Bahena was the only person who would want to hurt her.

On cross-examination, Cheryl testified that Bahena had not moved out of the house prior to July 24, 2004. He still had furniture and clothing in the house. He still received mail there. She testified that she lied to Phillips about Bahena because her parents were present during his (Phillips's) questioning. Because her parents were present, she falsely told Phillips that Bahena had moved out of the house a couple of months before the incident.

Kasey testified Cheryl told her before the incident that Bahena was not living with her (Cheryl). Cheryl told her she needed space. However, Kasey did not have any personal knowledge Bahena had moved out. After Bahena moved out, Kasey visited Cheryl's house more frequently. Kasey first went inside Cheryl's house in late June or early July 2004. Cheryl would call Kasey to tell her Bahena had come to visit her.

Kasey's husband James testified that about two to three weeks before the incident he was told (apparently by Kasey and/or Cheryl) that Cheryl and Bahena were breaking up or having problems in their relationship. It was James's understanding Bahena was moving out or had moved out of Cheryl's house. At that time, James offered to re-key the locks at Cheryl's house, but Cheryl declined his offer and explained Bahena had given her his key. On cross-examination, James admitted he did not know whether, in fact, Bahena had ever moved out of Cheryl's house.

In Bahena's defense, his sister, Veronica Bahena, testified that in July 2004 Bahena lived with Cheryl in the Gladiola house. Daniel Guerrero, who lived in an apartment attached to that house and was Bahena's friend, testified that, as far as he knew, Bahena was living in the main house on July 24, 2004. Daniel Thing, 17 years old at the time of trial, testified he was living with Bahena and Cheryl at the Gladiola house in July 2004. Thing characterized his relationship with Bahena as almost a big brother relationship because Bahena always helped him out. Thing testified that during the early morning hours of July 24, 2004, he was with Bahena when he (Bahena) received a telephone call from a friend. After the call, Bahena became upset. Bahena told him his friend had seen Cheryl with another man. Later that night, Thing helped Bahena move his (Bahena's) possessions (e.g., bed, dresser, etc.) from Cheryl's house to the Weldy's house. Afterward, at about 3:00 a.m., Thing returned alone to Cheryl's house and "trashed" it.

Bahena testified that he was living at the Gladiola house on July 24, 2004, and had never moved out of it prior to that date. After receiving the call from his friend and then calling Cheryl the night of the incident, Bahena, Thing, and Sylvester Weldy moved his (Bahena's) possessions from the Gladiola house to the Weldy's house. Afterward, Thing left after Bahena told him he (Bahena) needed some time alone. A couple of hours later, Thing returned to the Weldy's house and told Bahena he had "trashed" the Gladiola house. Bahena testified he told Deputy Phillips he did not vandalize the Gladiola house. He denied ever telling Phillips that he had done it or described how he had done it.

In rebuttal, Maria Thing, Daniel Thing's grandmother, testified he told her a young man had problems and that he (Thing) was going to turn himself in so the other man would be released. Thing told her that he (Thing) did not do it. She testified Thing told her Bahena would rent an apartment for Thing and give him anything he wanted when he (Thing) got out of jail.

Robert Tucker, a friend of Thing's family, testified that shortly before the 2004 Labor Day weekend, Thing told him there had been some vandalism involving Cheryl's property and that he (Thing) was involved and was going to "take the fall" for Bahena. Thing told Tucker: " 'I'm going to take the fall for it so he [i.e., Bahena] doesn't have to serve 20 to 25 years in prison.' " When Tucker asked Thing why he would do that, Thing replied he was doing it as a favor and that " '[t]hey've been good to me.' " When Tucker asked Thing whether he was going to be paid money, Thing said nothing but slightly smiled. Shortly thereafter, Tucker reported that information to Deputy Sheriff Nye on Labor Day and, the following day, to a person with the District Attorney's Office (apparently Sherry Harris).

Veronica Thing, Thing's aunt, testified that in November 2004 Thing told her "Kiki" (i.e., Bahena) had broken into his girlfriend's house and he (Thing) was going to take the blame for it so that "Kiki" would not have to do any time for it. Thing told her he (Thing) had nothing to do with the break-in. When she asked Thing why he would take the blame for it, he replied "Kiki" was going to get Thing an apartment when he (Thing) got out of jail and pay him $5,000 per month.^[6]

The jury found Bahena guilty of residential burglary (§ 459) and vandalism over $400 (§ 594, subds. (a), (b)(1)). Bahena admitted the truth of the information's prior conviction allegations. The trial court imposed the middle term of four years for his residential burglary conviction, doubled to eight years pursuant to the three strikes law. It imposed a consecutive five-year enhancement for his serious prior felony conviction (§ 667, subdivision (a)(1)) and a consecutive one-year enhancement for one of his two prior prison terms (§ 667.5, subd. (b)), dismissing the remaining prior prison term allegation. It also imposed the middle term of four years, doubled to eight years, for his vandalism conviction, but stayed its execution pursuant to section 654. Bahena received a total term of 14 years.

Bahena timely filed a notice of appeal.

DISCUSSION

I

Substantial Evidence to Support Bahena's Residential Burglary Conviction

Bahena contends the evidence is insufficient to support his residential burglary conviction.^[7] He asserts there is insufficient evidence to support a finding he was not living at the Gladiola house at the time of the incident and therefore cannot be convicted of burglary of a house in which he was living.

A

When on appeal a defendant challenges his or her conviction for insufficient evidence, we apply the substantial evidence standard of review. "Under this standard, the court 'must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.] The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on the ' "isolated bits of evidence.' Bb bbb, " [Citation.]" (People v. Cuevas (1995) 12 Cal.4th 252, 260-261, italics added in Cuevas.) We "must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" (People v. Jones (1990) 51 Cal.3d 294, 314.) Furthermore, "[a]lthough we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]" (Ibid.)

B

We conclude there is substantial evidence to support Bahena's conviction of residential burglary. Citing People v. Gauze (1975) 15 Cal.3d 709, Bahena notes that a person cannot burglarize his or her own residence and concedes the jury in this case was instructed accordingly. Although Bahena concedes there was "some evidence" to support a finding he had moved out of the Gladiola house before the incident, he argues that evidence did "not rise to the level of 'substantial evidence.' "

Deputy Phillips testified that Bahena initially told him he had seen Cheryl's parents at the Gladiola house the morning of July 25, 2004, and told them he did not know what happened and that he had not lived there for two months. On further questioning, Bahena admitted to Phillips that he had vandalized the house. He stated that he and Cheryl had decided to take some time apart (but not to date others) and he had moved out of the house. Phillips also testified that Cheryl told him Bahena had moved out of her house a couple of months before the incident. She further told Phillips that by mid-July Bahena had removed all of his clothes and other belongings, except for the bed, table, and chairs. Phillips also testified that when he went inside the Gladiola house on July 25, he did not see any male clothing in the house.

Bahena essentially argues Phillips's testimony was not credible, noting that Phillips admitted that some of his testimony at Bahena's preliminary hearing was inaccurate. Bahena notes Phillips admitted he told Cheryl he would bet a paycheck Bahena would be found guilty. Bahena also notes that although Phillips testified Bahena told him he had told Carol Ward (Cheryl's mother) he had not lived at the house for over two months, she did not mention that statement by Bahena when she testified at trial, but rather seemingly implied Bahena and Cheryl were still living together. However, despite Bahena's challenges of Phillips's credibility, the credibility of Phillips's trial testimony was an issue for the jury and it is not our function to second-guess that determination. (People v. Jones, supra, 51 Cal.3d at p. 314.) We conclude that Phillips's testimony was not incredible as a matter of law and the jury could rationally conclude his testimony was credible.

Bahena also cites various evidence that would have supported a finding by the jury that he did, in fact, live at the Gladiola house on July 24, 2004. He notes a magazine addressed to him was received at the Gladiola house four months after the incident and a receipt dated one week before July 24 listed the Gladiola house as Bahena's "ship to" address. Bahena also notes he, Cheryl, and other defense witnesses testified at trial that he lived at the Gladiola house at the time of the incident. He argues Phillips's testimony that he did not see any male clothing at the house the morning of July 25 did not prove anything because he (Bahena) had just removed it the previous night. However, in so arguing, Bahena misapplies the substantial evidence standard of review. It is not our function to reweigh the evidence or substitute our determination of the credibility of witnesses for the jury's determination of those matters. (People v. Jones, supra, 51 Cal.3d at p. 314.)

In addition to Phillips's testimony, Cheryl admitted at trial that she told Phillips she had decided to end her relationship with Bahena and he (Bahena) began moving out of the house in early June. She admitted it was possible she told Phillips that by mid-July all of Bahena's property was out of the house. Furthermore, Kasey testified Cheryl told her before the incident that Bahena was not living with her (Cheryl). Finally, Kasey's husband James testified that about two to three weeks before the incident he was told (apparently by Kasey and/or Cheryl) that Cheryl and Bahena were breaking up or having problems in their relationship. It was James's understanding that Bahena was moving out or had moved out of Cheryl's house. At that time, James offered to re-key the locks at Cheryl's house, but Cheryl declined his offer and explained Bahena had given her his key. Considering the record as a whole, we conclude there is substantial evidence to support the jury's findings that Bahena was not living at the Gladiola house at the time of the incident and he was guilty of committing the offense of residential burglary. (People v. Cuevas, supra, 12 Cal.4th at pp. 260-261; People v. Jones, supra, 51 Cal.3d at p. 314.)

II

Ineffective Assistance of Counsel

Bahena contends he was denied his constitutional right to effective assistance of counsel because his counsel allowed evidence of his criminal past to be admitted.

A

On direct examination by the prosecutor, Phillips testified, without defense objection, that Bahena told him he did not initially come out of the room in the Weldy's guesthouse because he knew he was subject to an arrest warrant. On cross-examination by Bahena's counsel, Phillips explained that "mainly [Bahena's] main arrest was for the warrant as well as this [i.e., the instant incident]. I mean, I had an arrest already. He was a parolee at large." Phillips also testified on cross-examination that Bahena asked him "not to charge him with a felony because he knew he'd get a lot of time."

On direct examination by the prosecutor, Cheryl acknowledged, without defense objection, that she knew Bahena had a "criminal past." She then denied that her knowledge of Bahena's criminal past affected her testimony. The trial court overruled a relevancy objection by Bahena's counsel, but at sidebar the court noted its concern about such questioning:

"This was not discussed in any kind of a pretrial or in limine motions, and I think it's improper to ask these questions, [addressing the prosecutor]. It's true that it came out already that he was on parole, but that would not allow you, in my view, to in open court to [talk] about his criminal past. You're free to ask her questions about whether he's convicted, about what may happen to the defendant, but not connect it to his criminal past, which is going to create questions in the jury's mind about the three strikes law and everything else under the sun. So you're directed, do not ask her questions about his criminal past or even intimate that he has one unless and until he gets on the stand and testifies and it comes out legally. I understand where you're going, and you have a right to inquire about her motivations and her testimony. But you do not need to connect it to his criminal past."

On cross-examination, in response to a question by Bahena's counsel regarding why she had lied to Phillips, Cheryl answered: "Because my parents didn't know that he had a past record, and I was embarrassed that I was with somebody that had a record." On redirect examination, the prosecutor asked her to explain why Bahena's criminal record would "have anything to do with your embarrassment with your parents." Cheryl answered: "Because the Sheriff [i.e., Phillips] was discussing his [i.e., Bahena's] record. And he was asking me about, did you know this about him -- [.]" Although the trial court overruled an objection by Bahena's counsel, the court gave the jury the following limiting instruction:

"Obviously there's been evidence that's been presented that Mr. Bahena has a criminal record, or has a criminal history. And that has come in for certain reasons, but cannot come in for other reasons. The reason it came in is to explain perhaps, for example, this witness's embarrassment, as she said, regarding certain things, or perhaps her knowledge of the criminal record and how that might affect her in one way or another.

"What it cannot be used for, and what the jurors are specifically instructed not to use it for, is as any kind of evidence that Mr. Bahena is a bad person, or that he's more inclined to commit crimes than somebody without a criminal record. You can't use it for that. You cannot discuss that in the jury room. The fact that it . . . has come in for various limited purpose[s] but cannot be used for the purpose I've indicated." (Italics added.)^[8]

On conclusion of Cheryl's testimony, the prosecutor recalled Phillips and asked him, without defense objection, if he had asked Cheryl whether she knew Bahena had a record. Phillips answered, without defense objection, that: "That was later in the day after her parents had left. And, yes, we [i.e., Cheryl and Phillips] were in the [patrol] vehicle, and I was asking her if he had been arrested before, and asked her if she knew of any convictions in his past." Phillips testified that Cheryl denied knowing Bahena had any prior arrests or convictions.

Bahena testified in his defense and admitted he was on parole, and there was an outstanding warrant for his arrest, on July 25, 2004, and also admitted he had a criminal history, including two felony convictions.

B

A criminal defendant is constitutionally entitled to effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466 U.S. 668, 684-685; People v. Pope (1979) 23 Cal.3d 412, 422, disapproved on another ground by People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) To show denial of the right to counsel, a defendant must show: (1) his or her counsel's performance was below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance prejudiced the defendant. (Strickland, supra, at pp. 687, 691-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-217; Pope, supra, at p. 425.) To show prejudice, a defendant must show there is a reasonable probability that he or she would have received a more favorable result had his or her counsel's performance not been deficient. (Strickland, supra, at pp. 693-694; Ledesma, supra, at pp. 217-218.) "When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the [trial counsel's] errors, the factfinder would have had a reasonable doubt respecting guilt." (Strickland, supra, at p. 695.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]" (People v. Williams (1997) 16 Cal.4th 153, 215.) It is the defendant's burden on appeal to show that he or she was denied effective assistance of counsel and is entitled to relief. (Ledesma, supra, at p. 218.)

"In evaluating a defendant's claim of deficient performance by counsel, there is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' [citations], and we accord great deference to counsel's tactical decisions. [Citations.] . . . Accordingly, a reviewing court will reverse a conviction on the ground of inadequate counsel 'only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.' [Citations.]" (People v. Frye (1998) 18 Cal.4th 894, 979-980.)

However, a court need not address the issue of whether a defendant's counsel performed deficiently before it addresses the issue of whether the defendant was prejudiced by that purported deficient performance. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Strickland v. Washington, supra, 466 U.S. at p. 697.)

C

Bahena asserts his counsel performed deficiently by allowing evidence of his criminal past to be admitted. Assuming arguendo that Bahena's counsel performed deficiently as Bahena asserts, we nevertheless conclude he has not carried his burden on appeal to show he was prejudiced by that deficient performance, i.e., that it is reasonably probable he would have received a more favorable result had his counsel's performance not been deficient. Bahena argues that evidence on his criminal past "not only caused the jury to dismiss [his] credibility before he testified, it also caused the jury to dismiss the entire line of defense evidence and witnesses." However, any prejudice that could have resulted from admission of evidence on Bahena's criminal past was effectively prevented or cured by the trial court's limiting instruction, which instructed the jurors to consider that evidence only for the purpose(s) for which it was admitted and not to consider it as evidence "that Mr. Bahena is a bad person, or that he's more inclined to commit crimes than somebody without a criminal record." We presume the jury followed that limiting instruction and did not consider that evidence for improper purposes (e.g., to show Bahena was a bad person or was inclined to commit crimes). Bahena does not argue or show otherwise.

Furthermore, although Bahena argues that had that evidence been excluded he would not have testified in his defense "in a misguided, last-ditch, and ultimately unsuccessful attempt to somehow convince the jury he was not the all-around bad guy it had been unlawfully led to believe he was," he does not persuade us he would not have testified in his defense had that evidence been excluded or that, in any event, it is reasonably probable he would have received a more favorable result had that evidence been excluded and had he not testified in his defense. (Strickland v. Washington, supra, 466 U.S. at pp. 693-694; People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.)^[9] Based on our review of the record, the jury could have found the testimonies of Bahena and the other defense witnesses to be not credible on the issues of whether Bahena lived at the Gladiola house at the time of the incident and whether he participated in the "trashing" of the house. There is no evidence to show the jury's determination of credibility issues "turned" on evidence that Bahena had a criminal past. On the contrary, the jury's credibility determinations apparently were based on its weighing of the inconsistencies and inherent implausibilities of the testimonies of the defense witnesses against the relative strength of the testimonies of the prosecution's witnesses and other prosecution evidence. The jury could have reasonably found Bahena and Thing lacked credibility because they had conspired to falsely testify that Bahena was not involved in the "trashing" of the Gladiola house and allow Thing to "take the fall" for Bahena. We conclude it is not reasonably probable Bahena would have received a more favorable result had his counsel's performance not been deficient. (Strickland v. Washington, supra, at pp. 693-694; People v. Ledesma, supra, at pp. 217-218.) Therefore, he was not denied his constitutional right to effective assistance of counsel. (Strickland v. Washington, supra, at pp. 687, 691-692; People v. Ledesma, supra, at pp. 216-217; People v. Pope, supra, 23 Cal.3d at p. 425.)

DISPOSITION

The judgment is affirmed.

McDONALD, J.

WE CONCUR:

McCONNELL, P. J.

HALLER, J.

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

^[2] Miranda v. Arizona (l966) 384 U.S. 436.

^[3] She testified they were married on August 21, 2004.

^[4] She later denied telling Phillips Bahena had slapped her. She testified he had only pushed her.

^[5] She later testified she told Phillips that Bahena was living at the house during the months of May, June and July in 2004.

^[6] Thing did not tell her how long he would be paid that monthly amount.

^[7] He apparently does not contend there is insufficient evidence to support his conviction for vandalism over $400 (§ 594, subds. (a), (b)(1)).

^[8] At the conclusion of the trial, the court again gave a limiting instruction (CALJIC No. 2.09).

^[9] To the extent he argues reversal is required per se if the record shows no conceivable tactical reason for his counsel's deficient performance, he misconstrues the appropriate standard of prejudice.