P. v. Maldonado

Filed 3/10/17 P. v. Maldonado CA5





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

SANTOS MALDONADO,

Defendant and Appellant.


F070557

(Super. Ct. No. BF156024A)


OPINION

APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge.
Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, and Carlos A. Martinez, Deputy Attorney General, for Plaintiff and Respondent.
-ooOoo-


Defendant Santos Maldonado was charged with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1) [count 1])[1] and battery with serious bodily injury (§ 243, subd. (d) [count 2]). The information further alleged he served five prior prison terms (§ 667.5, subd. (b)) and, in connection with count 1, inflicted great bodily injury in the commission of the crime (§ 12022.7). The jury found defendant not guilty on count 1 and guilty on count 2. In a bifurcated proceeding, the trial court found true the prior prison term allegations. Thereafter, defendant received an aggregate sentence of six years: an upper term of four years on count 2 plus two years for two of the prior prison terms. The court struck punishment for the remaining prior prison terms.
On appeal, defendant contends the trial court erroneously admitted evidence of his mother’s attempt to dissuade a witness from testifying. He also asserts his trial attorney rendered ineffective assistance because (1) she did not request a limiting instruction with respect to the abovementioned dissuasion evidence; and (2) in her summation, she did not argue he was entitled to protect himself from the victim’s repeated attempts to embrace him. For the reasons set forth below, we reject these claims and affirm the judgment.
STATEMENT OF FACTS
On July 12, 2014, Ignacio and Constance Tapia[2] hosted a party at their home in Bakersfield. Defendant, Ignacio’s nephew, arrived at around 5:00 p.m. Constance “didn’t care for him to be there” and both she and Ignacio asked him to leave. Defendant left the premises after he greeted his siblings but came back sometime before 6:00 p.m. Again, Ignacio and Constance asked him to leave. Defendant departed 15 to 20 minutes later but returned by 8:00 p.m. Constance notified Ignacio and Ignacio asked defendant to leave for a third time. In response, defendant sat inside Ignacio’s Ford Expedition, which was parked on the driveway. Ignacio implored, “Please leave, Santos. You are not welcome here at this time.” Defendant inquired, “Why does everybody have to party and I can’t?” Ignacio replied, “Because of your history.” Defendant exited the vehicle and sat in a swing in the yard. Ignacio asked him once more to leave the party. Defendant left but came back at around 9:30 p.m. By then, an estimated 20 to 25 guests were in attendance, most of whom congregated outside. Defendant “grabbed a beer from a female’s hand and started drinking it.” Constance shouted, “I told you not to come over no more[!]” Ignacio and other guests tried to convince defendant to leave, but to no avail.
At around 10:30 p.m., defendant’s cousin Christopher Acosta arrived. He and defendant talked while standing on opposite sides of the property’s chain-link fence: Acosta faced the house and defendant faced the street. Acosta said, “Santos, what’s wrong? We are family. I love you. . . . [¶] . . . [¶] . . . We are family. Primo,[[3]] we are family.” He then tried to hug defendant over the fence. After the second or third attempt, defendant punched Acosta in the face and retrieved a black ceramic coffee mug from a dining table in the yard. The guests were upset with defendant for striking Acosta and told defendant to leave. In addition, Acosta entered the yard and remarked, “Santos, we are family. We are cousins. Why are you doing this? Why did you hit me for?” The guests, including Acosta, did not hold any objects, let alone weapons. Ignacio instructed the crowd, “Give him room to leave. Move away from him. Give him a path to the . . . front gate. [¶] . . . [¶] . . . Give him room. Let . . . Santos leave.” Although the guests complied, defendant “back-pedal[ed]” and entered a shed at the rear of the property. Acosta followed him. Before he could “tell [defendant] again that [they] are family,” Acosta was struck with either a “glass,” “bottle,” or “cup.” He ended up “pulling out big‑old pieces of glass out of [his] face.” Ignacio saw defendant next to the fence and urged him to flee. Defendant “jumped over the fence and ran.”
Sheriff’s deputies arrived at the residence after midnight. They interviewed Ignacio as well as Acosta. Acosta appeared “kind of dazed” and his face was “covered in blood.” The deputies observed black ceramic shards and fresh bloodstains near the shed.
Meanwhile, Anita Rubio, a neighbor, was hosting her own party. She went outside and spotted defendant, who “looked like he was hiding.” Rubio asked him what he was doing. Defendant “put a finger up in front [of] his mouth” and muttered, “Shhh.” Rubio saw the deputies nearby and shouted, “He is right here[!]” Defendant tried to escape but was apprehended. At the time of his arrest, he was holding a bandana in one hand, which was bleeding profusely.
Acosta was subsequently transported to San Joaquin Community Hospital, where he was examined by Dr. Jason Manuell, an emergency department physician. Acosta sustained lacerations on the bridge of the nose and around the left eye, which were sutured by Manuell. Acosta’s eye remained bruised and swollen for about four weeks. At trial, Manuell opined Acosta’s injuries were “consistent with being struck with an object.”
DISCUSSION
I. The trial court’s admission of evidence that defendant’s mother attempted to dissuade Ignacio from testifying did not constitute prejudicial error.
a. Background.
On October 15, 2014, Ignacio was sworn as a prosecution witness outside the jury’s presence. The trial court remarked, “Mr. Tapia, it’s been represented to me through the prosecutor that . . . you are going to plead the Fifth, something to that effect.” When asked whether he would do so, Ignacio answered, “No.” The prosecutor then conducted a voir dire examination:
“Q Mr. Tapia, do you recall speaking with me this morning via telephone?
“A Yes.
“Q Do you recall telling me that, quote, unquote, they are telling you to take the Fifth?
“A True.
“Q Okay. You do recall that?
“A Yes.
“Q Okay. What specifically were you told about taking the Fifth when you come to court?
“A I was told not to testify and please plead the Fifth.
“Q And, sir, who told you that?
“A Other family members.
“Q Any family members in particular?
“A [Defendant]’s mother. [¶] . . . [¶]
“Q And when did that happen, sir?
“A Yesterday.
“Q Okay. And how did she get ahold of you? Is it by telephone[?]
“A No. She came to visit.
“Q Did she visit you in person?
“A Yes.
“Q And her request of you was specifically not to testify today?
“A She stated, ‘Are you going to plead the Fifth?’ [¶] I told her, ‘No. I’ve been subpoenaed, and I have to testify.’ ”
After Ignacio exited the courtroom, the court asked the prosecutor whether he would raise the issue in front of the jury. The prosecutor replied:
“I would like to, Your Honor. . . . I think . . . it would directly affect [Ignacio’s] demeanor while testifying. I think it would be relevant for that purpose. And so I would ask the Court to allow me to question him on . . . whether . . . anybody has attempted to dissuade him from testifying in this matter.”
Defense counsel objected:
“[F]irst, I’d make an oral in limine motion to exclude any evidence of or reference to somebody either in a vague sense or specifically identifying somebody such as [defendant’s mother] telling or requesting Mr. Tapia to plead the Fifth if called to testify. It is not relevant to prove or disprove any fact in question in this case.
“And, pursuant to Evidence Code Section 352, I also believe it should be excluded as it will create an undue prejudice against my client. The information is that it’s [defendant]’s mother asking a family member to not testify, not [defendant]. So it’s the defense position that it’s not relevant to . . . any issue in this case. And I don’t believe it needs to be addressed in front of the jury based on those grounds.”
Subsequently, the court admitted the dissuasion evidence:
“The Court will allow introduction of that issue to be presented to the jury since it does go directly toward the witness’s credibility as it relates to any potential bias or reasons why or motivation why he would testify the way he does.
“The Court does find that it is significant as it relates to the witness’s credibility, and that significance and its probative value would certainly outweigh any prejudicial effect[,] recognizing that witness intimidation or witness dissuasion is certainly a credibility determination to be made by the jury and it is an area that does not have to originate or arise by . . . defendant’s direct involvement. That is not . . . necessary.
“So, for those reasons, the Court will allow the People to address . . . [defendant’s mother] dissuading the witness [from] testify[ing] in this case.”
Thereafter, Ignacio was summoned to the witness stand. On direct examination, the following colloquy transpired:
“[PROSECUTOR:] Now, sir, why are you here today?
“[IGNACIO:] I was subpoenaed by the district attorney’s office against [defendant].
“[PROSECUTOR:] Are you here because you want to be?
“[IGNACIO:] Yes.
“[PROSECUTOR:] Now, . . . have you been contacted by anybody, sir, trying to get you not to testify today?
“[IGNACIO:] At this time, yes.
“[PROSECUTOR:] When were you contacted?
“[IGNACIO:] Yesterday.
“[PROSECUTOR:] And by whom?
“[IGNACIO:] [Defendant]’s mother. [¶] . . . [¶]
“[PROSECUTOR:] And what was her request of you, sir?
“[DEFENSE COUNSEL:] Objection. Hearsay based on the grounds I previously stated.
“THE COURT: Any response . . . ?
“[PROSECUTOR:] I’ll withdraw the question, Your Honor. [¶] . . . And you came today regardless?
“[IGNACIO:] Yes.”
b. Standard of review.
“[A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence.” (People v. Waidla (2000) 22 Cal.4th 690, 717.) “Under the abuse of discretion standard, ‘a trial court’s ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ [Citation.]” (People v. Hovarter (2008) 44 Cal.4th 983, 1004; see People v. Kipp (1998) 18 Cal.4th 349, 371 [“A court abuses its discretion when its ruling ‘falls outside the bounds of reason.’ ”].)
c. Analysis.
Defendant contends the dissuasion evidence was inadmissible because (1) he did not authorize his mother’s attempt to suppress Ignacio’s testimony; (2) the attempt did not occur in his presence; and (3) Ignacio “displayed no reluctance to answer questions posed to him by the trial court or the prosecution during voir dire, or during the examination in front of the jury.” The Attorney General concedes “the court likely erred in admitting evidence that [defendant]’s mother attempted to dissuade Ignacio from testifying because such evidence was irrelevant to show Ignacio’s demeanor, credibility, motive, or bias for testifying.”
Assuming arguendo the trial court erroneously admitted the dissuasion evidence, we find such error harmless.
By constitutional mandate, “[n]o judgment shall be set aside, or new trial granted, in any cause, on the ground of . . . the improper admission or rejection of evidence, . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.) “[A] ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); accord, People v. Callahan (1999) 74 Cal.App.4th 356, 363.)[4]
In the instant case, it was not reasonably probable that a result more favorable to defendant would have been reached absent admission of the dissuasion evidence. The record demonstrates defendant grabbed a black ceramic coffee mug and entered the shed at the rear of the Tapia residence. Acosta followed him and was struck with either a “glass,” “bottle,” or “cup,” resulting in facial lacerations, bruising, and swelling. Thereafter, black ceramic shards were found near the shed and one of defendant’s hands was bleeding profusely. (See People v. McGriff (1984) 158 Cal.App.3d 1151, 1157 [“Although evidence against appellant was largely circumstantial, the circumstantial evidence was overwhelming.”].) Defendant fled the scene and hid outside a neighbor’s house. After the neighbor summoned the nearby deputies, defendant tried to flee once again but was captured. (See People v. Visciotti (1992) 2 Cal.4th 1, 60-61 [“The jury could infer from the actions of defendant immediately following the crime that his flight . . . reflected consciousness of guilt.”].) In addition, the record shows, prior to the battery at issue, (1) Acosta engaged in a friendly conversation with defendant and tried to hug him two or three times but was punched in the face; and (2) the guests who witnessed the punch were unarmed and, though upset, gave defendant room to leave the property without incident. Given these circumstances, self-defense could not be justified. (See People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065 [“ ‘To justify an act of self-defense . . . , the defendant must have an honest and reasonable belief that bodily injury is about to be inflicted on him. [Citation.]’ [Citation.] The threat of bodily injury must be imminent [citation], and ‘. . . any right of self-defense is limited to the use of such force as is reasonable under the circumstances. [Citation.]’ ”].)
II. Defendant’s claims of ineffective assistance of counsel must be rejected because the appellate record does not shed light on why his trial attorney acted or failed to act in the challenged manner.
To establish ineffective assistance of counsel, a defendant must show (1) defense counsel did not provide reasonably effective assistance in view of prevailing professional norms; and (2) defense counsel’s deficient performance was prejudicial. (See People v. Oden (1987) 193 Cal.App.3d 1675, 1681, citing Strickland v. Washington (1984) 466 U.S. 668, 687-688.) “It is . . . particularly difficult to establish ineffective assistance of counsel on direct appeal, where we are limited to evaluating the appellate record. If the record does not shed light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation.” (People v. Scott (1997) 15 Cal.4th 1188, 1212.)
The record before us “ ‘does not illuminate the basis for the attorney’s challenged acts or omissions . . . .’ ” (People v. Silvey (1997) 58 Cal.App.4th 1320, 1329.) Defense counsel was never asked to explain why she did not request a limiting instruction with respect to the dissuasion evidence or why she did not argue in her summation that defendant was entitled to protect himself from Acosta’s repeated attempts to embrace him. “When . . . defense counsel’s reasons for conducting the defense case in a particular way are not readily apparent from the record, we will not assume inadequacy of representation unless there could have been ‘ “no conceivable tactical purpose” ’ for counsel’s actions. [Citations.]” (People v. Earp (1999) 20 Cal.4th 826, 896; see People v. Jones (2003) 29 Cal.4th 1229, 1254 [“ ‘ “[T]here is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ ” ’ ”].) Here, we cannot conclude defense counsel’s conduct had no conceivable tactical purpose. As previously noted, Ignacio’s testimony pertaining to defendant’s mother’s effort to dissuade him from testifying was limited. Defense counsel may have believed a request for a limiting instruction would have imprudently drawn further attention to the matter. (See People v. Hinton (2006) 37 Cal.4th 839, 878; People v. Freeman (1994) 8 Cal.4th 450, 495.) With regard to closing argument, “the right of self-defense is based upon the appearance of imminent peril to the person attacked” (People v. Perez (1970) 12 Cal.App.3d 232, 236) and “ ‘any right of self-defense is limited to the use of such force as is reasonable under the circumstances’ ” (People v. Minifie, supra, 13 Cal.4th at p. 1065). Defense counsel may have concluded an attempt to depict defendant’s act of smashing a ceramic coffee mug on an unarmed relative’s head as a sensible and proportionate response to the “peril” of receiving a conciliatory hug would have been futile. (See Yarborough v. Gentry (2003) 540 U.S. 1, 8 [“[J]udicious selection of arguments for summation is a core exercise of defense counsel’s discretion. [¶] When counsel focuses on some issues to the exclusion of others, there is a strong presumption that he did so for tactical reasons rather than through sheer neglect.”].) Accordingly, we reject defendant’s claims of ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.

_____________________
DETJEN, J.
WE CONCUR:


_____________________
GOMES, Acting P.J.


_____________________
PEÑA, J.

[1] Unless otherwise indicated, subsequent statutory citations refer to the Penal Code.

[2] To avoid confusion, we distinguish individuals who share the same surname by their given names.

[3] “Primo” means “cousin” in Spanish.

[4] Defendant asserts the more stringent “harmless beyond a reasonable doubt” standard prescribed in Chapman v. California (1967) 386 U.S. 18, 24, is the proper test of reversible error. We disagree. The application of ordinary rules of evidence does not implicate the federal Constitution; therefore, we review allegations of evidentiary error under Watson’s “reasonable probability” standard. (People v. Harris (2005) 37 Cal.4th 310, 336; People v. Marks (2003) 31 Cal.4th 197, 226-227; see People v. Page (2008) 44 Cal.4th 1, 42 [“In the absence of a violation of federal rights, we evaluate whether ‘it is reasonably probable that a result more favorable to [defendant] would have been reached in the absence of the error.’ ”].)