Filed 3/28/17 P. v. Peoples CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE


THE PEOPLE,
Plaintiff and Respondent,
v.
QUINCY A. PEOPLES,
Defendant and Appellant.

A147699

(Contra Costa County
Super. Ct. No. 05-142273-2)

INTRODUCTION
This case involves a domestic disturbance and the subsequent evasion of the police. Defendant Quincy A. Peoples was charged with three felonies; he was convicted of two misdemeanors. On appeal, defendant agues his trial attorney rendered ineffective assistance of counsel by failing to timely object to portions of his wife’s statement to police. We find no prejudice and affirm.
STATEMENT OF THE CASE
Defendant Quincy A. Peoples was charged by information in Contra Costa County with assault on a peace officer, resisting an executive officer, injury to a spouse, and hit-and-run driving. (Pen. Code, §§ 245, subd. (c), 69, 273.5, subd. (a), Veh. Code, § 20002, subd. (a).) The information also alleged one prior robbery conviction for enhancement purposes as a serious felony and a prior prison term (§§ 667, subds. (d)-(e), 667.5, subd. (a).), and three other convictions for probation ineligibility purposes (§ 1203, subd. (e)(4)).
Prior to trial, the court dismissed the hit-and-run charge on a section 995 motion. A jury acquitted defendant of the charged felonies. The jury convicted defendant of misdemeanor resisting arrest (§148, subd. (a)(1)), a lesser included offense of resisting an executive officer, and misdemeanor battery against a spouse (§ 243, subd. (e)(1)), a lesser included offense of injury to a spouse.
Defendant was sentenced to two years in county jail, with 550 days’ credit for time served, and no sheriff’s parole. He timely appeals.
STATEMENT OF FACTS
The Prosecution’s Case
The 911 Call
On August 11, 2014, T.K. placed a 911 call to report she was “having a domestic violence.” She said her husband was about to ram his car into her truck in the parking lot and she was “bleeding like crazy.” She asked if someone could come. She said her husband’s name was Quincy Peoples. She reported to the dispatcher “he just hit my truck with his car” and started to yell: “What you gonna do Quincy. You just hit my son’s f–g truck and you still want me to drop the key? Ok. I don’t think it’s a game, do not do that. Do not do that. [¶] . . . [¶] “I’m not about to get you the f–g key but if you run up that m–g truck and that truck is dented, I’m not giving you s–t Quincy. Ok then I’m gonna throw that m–g watch and I’m gonna send your ass to jail.”
T.K.’s Testimony
T.K. married defendant in March 2014. On August 11, 2014, she was living in an apartment on MacDonald Avenue in Richmond with her two children; defendant lived with her “off and on.” She had last seen defendant about five days before August 11. On that day, at 10:00 or 11:00 a.m., defendant called to say he would be home shortly. He showed up between 8:00 and 9:00 p.m. T.K. had packed his things and set them by the door. When defendant rang the doorbell, she let him inside but she told him to get his stuff and leave. She started arguing with him about him not coming home. Defendant grabbed his things and went outside to put them in his car. He made several trips from the apartment to the car and became upset because he said “that wasn’t all his stuff.” They started arguing back and forth, and while defendant was downstairs T.K. put the rest of his things outside the door, went inside, shut the door, and locked it. T.K. had changed the locks so defendant could not come and go as he pleased.
When defendant came back upstairs, he started cursing, kicking the door, and saying he was going to kick in the door. T.K. was standing behind the door, looking out the peephole at him. She did not think he was actually going to kick the door in, and she told defendant “to get out of here.” Defendant said he was not going to leave until he got all his stuff. He was upset because he wanted the key to a car she had rented from Concord BMW, in which he had left some of his belongings, but T.K. did not want to give him the key because “it wasn’t my car, and I didn’t want him to take off in it.”
Defendant kicked in the door. When the door gave way, it hit her in the nose and forehead, causing her to stagger back and her nose to bleed. Defendant saw her nose bleeding and became concerned. He told her to clean her face. T.K. professed she never felt threatened by defendant, not even that night.
Nevertheless, she went to the kitchen to get a knife. Defendant then tore the closet door off its hinges and threw the door at her in self-defense. She fell down and the knife went somewhere. He picked up the knife and set it down on the table while she was on the ground. A few seconds later, they started “tussling” over the key, which she had put in her bra, while he talked to her in a calm voice. Thinking T.K. had the keys in her hand, defendant climbed on her back, and placed her hand behind her back to get the key. He got up to get her something to wipe her face, and then she got up. They started arguing again, and he threw a desk chair at her, but it did not hit her. Then he grabbed the rest of his stuff and left.
T.K. went to the balcony outside her front door. She could see defendant putting things into the trunk of his car. They continued the argument over the key. Defendant got in his car and backed it into her son’s truck because, he said, he wanted the key. They continued arguing. Defendant backed his car into the truck again. She called 911 because she “didn’t want him to tear my son’s truck up. That was the only reason why I called.” She continued to watch defendant while talking with the 911 dispatch operator. At some point, the police arrived. She could see a police car coming down Second Street. She did not see other police cars. The security gate to the parking lot opened. She saw a uniformed police officer walk through the gate as it was still opening. He disappeared from her view as he walked between some parked cars. She noticed a second officer on the sidewalk outside the parking lot with his gun drawn.
When T.K. noticed the first officer outside the parking lot waiting for the gate to open, defendant had turned left and was rolling slowly towards the gate, waiting for it to open fully. Defendant’s window was rolled down. T.K. heard the officer she could not see say to defendant, “[L]et me talk to you.” He said it more than once. Defendant responded, “All right.” Then defendant drove out of the lot through the gate. Once outside the gate, defendant turned right and accelerated away. The first officer got behind defendant’s car. The second officer stepped out into the street and started firing at the back of defendant’s car as he was going down the street. He never entered the parking lot.
After that, T.K. tried to leave as well, but the police would not let her. They took some pictures of the inside of her apartment and then made her go to the police station, where she gave a statement to two officers. T.K. was impeached with her statement to the police regarding what she saw defendant do after the police arrived and other particulars of her testimony. T.K. admitted she identified defendant as Quincy Peoples to the 911 dispatcher, but gave a different name to the police who questioned her at the police station. She did so “because [she] was concerned for his well-being after they had shot at him. Of course, [she] didn’t want to give them his name. If someone shot at your husband, would you want to give them . . . his name?” T.K. admitted she had been convicted of forgery in 2002, writing a bad check in 2003, obtaining money by false pretenses in 2008, and welfare fraud in 2011.
T.K.’s Videotaped Police Interview
T.K.’s videotaped interview by Senior District Attorney Inspector Dominic Medina and Richmond Detective Dan Wellhausen was shown to the jury during Wellhausen’s testimony. In the interview, T.K. initially identified defendant as Andre Quincy Moore and denied she told the 911 dispatcher his name was Peoples. She eventually admitted his name was Andre Quincy Peoples.
T.K. told Wellhausen and Medina defendant had never been violent with her before. She was standing behind the door when defendant kicked it in, and the door hit her in the nose, causing it to bleed. He threw a chair and a closet door at her. Neither one hit her. He wanted her car keys. He left the apartment and shouted at her that he was going to ram his car into her son’s truck. Then he did ram her son’s truck. She called the police after the first time he ran his car into her son’s truck. He was about to do it again when she saw the police coming through the gate.
She was standing on the patio looking over the balcony. She saw three officers. “[T]he police come to the gate and the gate is opening. And he sees it too so he hops in the car and he acts like he’s—the police are tellin’ him to stop. He acts like he gonna stop. He was sayin’, “All right—all right—all right,” like he was gonna stop. But instead he just smashes on the gas and goes to the right and flies down the street wherever he went. [¶] . . . [¶] But the police were, like, comin’ through gate and they were on the side of his car. They weren’t standin’ in front of his car. They were on the side of his car askin’ him to stop. And he act like was stoppin’. [¶] . . . [¶] But instead he just hit the gas and flew outta the gate. [¶] . . . [¶] And I heard the gunshots.”
Police Officers’ Testimony
Richmond police officers Robert Branch, Bashar Zeidan, and Aaron Mandell testified. Each responded in his own car to a dispatch call regarding a domestic dispute or disturbance. All were in uniform. They arrived at about the same time and parked their cars on Second Street, one behind the other. Branch got out of his car and approached the gate, followed by Zeidan. The gate is electric and slides from left to the right (when facing it from the street) along a track to open. The gate was opened for the police by somebody. Mandell was behind Zeidan. The gate was not fully open when Branch went through to the parking lot.
When Branch first saw defendant, he was standing behind his car shouting at the third floor balcony. Branch repeatedly yelled at him to stop and show his hands. Defendant turned towards Branch and repeatedly said, “[O]kay, okay, okay,” showing his hands as he walked slowly towards the open driver’s side car door and got into the car. He closed the door and started to drive away. He turned his car east, accelerating quickly. Branch continued to say stop and defendant continued to say okay as he continued to drive away. Since defendant was not stopping, Branch got out of the car’s path of travel. As defendant’s car passed him, Officer Branch turned toward the gate and saw Officer Mandell standing in the entrance of the gate, “in harm’s way.” He also saw Officer Zeidan. The car slowed before accelerating again toward the gate and Officer Mandell. Branch fired his weapon at defendant twice. He watched as defendant’s car turned out of the parking lot onto Second Street.
When Zeidan walked into the parking lot, defendant was driving a white Ford Crown Victoria. Branch was yelling repeatedly at defendant to stop. Defendant ignored Branch’s commands to stop. Defendant kept driving, slowly, turning toward the gate. At this point, Zeidan started yelling at defendant to stop, too. Defendant slowed almost to a stop next to Zeidan. Zeidan looked at defendant and told him to stop; defendant looked forward, then “floor[ed] it.” Zeidan did not feel threatened, but he saw in his peripheral vision that “Officer Mandell was in his way” halfway between the north and south side of the gate. Zeidan thought defendant was going to run over Officer Mandell, possibly killing him, and started shooting at defendant. Zeidan fired four or five times. Officer Zeidan estimated that the entire incident, from the time he walked into the parking lot, to the time he started shooting, was “very quick. [¶] . . . [¶] Maybe 15 seconds.” Zeidan could not see Officer Mandell and thought he had been run over, so Zeidan continued chasing the car and firing. He did not stop firing until he was in the middle of Second Street and decided defendant was too far away to be stopped.
By the time Mandell got to the gate, which was open, he could not see Branch or Zeidan. Mandell heard a loud voice yelling “stop the car” or something similar. As Mandell was walking up the slope of the driveway towards the parking lot, he saw a car turn towards the gate and begin to accelerate rapidly. He shone his flashlight at the hood of the car below the driver. When the car was 20 to 25 feet away from him, it started to “really slow down.” He thought the car was going to stop for him and, when it was 10 to 15 feet away, Mandell began to angle away from the center of the gate towards the driver’s side of the car. He was located just outside the parking lot, at the railing for the gate. He and defendant made eye contact. Mandell took a step or two towards the driver’s side front quarter panel before stepping off to the side as the car began to accelerate past him. He yelled at the driver to get out of the car. Although he did not remember taking a step back, he saw on the videotape of the incident that he did. The car’s length passed by him within inches. As Mandell cleared the front quarter panel of the car, he heard a volley of gunshots. He remembered glass shattering. Mandell never drew his gun. The car hit the street as Mandell glimpsed Officer Zeidan running past him.
Prior Similar Conduct
A deputy sheriff testified that on August 12, 2015, he told defendant to go to his cell, but defendant refused to comply. Instead, he took a fighting stance with clenched fists. When the deputy called for help, defendant ran to his cell.
Defense Case
Dr. Gregory Sancier testified as an expert in the reasonable use of force. He was a police officer for over 30 years and currently consults with law enforcement agencies in officer-involved shootings on “[c]risis and danger assessment.” He reviewed video surveillance footage of the interaction between defendant and the police. Dr. Sancier opined it was unreasonable for the police to pull a gun on a driver in a moving car, especially if the officer is also moving. “[I]t is extremely dangerous to approach, or to point your weapon or even think about discharging your weapon at a moving vehicle.” Shooting at a moving vehicle is unreasonable because there is no guarantee you are going to be able to strike that suspect with a round from your weapon, but the hazard is you may hit someone other than the suspect. Nor was it reasonable for officers to try to kill someone who had driven past them after failing to heed commands to stop. It is unreasonable because “we don’t know what the threat is, but to use a firearm to stop a passing car at speed when you’re moving is just an extremely dangerous situation . . . . You can’t guarantee you’re going to hit what you’re shooting. Hitting a large vehicle is one thing, but hitting the driver is a completely different situation.” In addition, the officer does not know if the person at whom he is shooting is “even . . . guilty of anything, at this point.” Based on the videotape, Dr. Sancier did not think Officer Mandell was “in a life-altering situation based on the driver slowing down.” Dr. Sancier found it perplexing that the other officers were firing at the suspect, “whereas the officer who allegedly was in fear for his life, or they felt was in fear for his life, . . . never drew his firearm to defend his own life . . . .” He believed it was unreasonable for the officers not to “go run and check on [the possibly injured officer] first, let the car go, we’ll get that person later, let’s go see what the extent of the injuries are.” The Richmond Police Department manual does not teach their officers to shoot at moving cars. “It’s not considered to be a practice that is favorable, and at all times, it should be discouraged, but there’s stipulations after that, none of which were met in this situation.” However, the Richmond Police Department’s use-of-force policy explicitly states that an officer may discharge his or her firearm in a situation where he or she reasonably believes that another person’s life is in danger, and Dr. Sancier agreed the officers perceived that Officer Mandell’s life was in jeopardy.
DISCUSSION
Defendant argues his trial attorney rendered ineffective assistance of counsel by failing to object in a timely fashion to the admission of T.K.’s police interview, People’s exhibit 75, which was admitted into evidence in its entirety, without objection, until after the first 12 minutes the videotape had been played for the jury (equivalent to 15 pages of the transcript, Exh. 75A). At that point, defense counsel belatedly requested a limiting instruction, “since this is being offered for impeachment purposes.” The court indicated the statement came within the hearsay exceptions for prior consistent and inconsistent statements, and was therefore admissible as substantive evidence, i.e., for its truth. Defense counsel objected that the prosecutor had proffered the statement under Evidence Code section 770 so that she would “not have to confront Mrs. Peoples with the statement while she was still testifying.” Defense counsel maintained the statement was not admissible for its truth, while the prosecutor and the court maintained it was. Defense counsel’s objection was noted for the record and her request for a limiting instruction was denied.
Defense counsel then objected that only the portions of the statement that were inconsistent with T.K.’s testimony should be played. She specifically objected to T.K.’s reference to defendant’s drug use. “[S]he doesn’t seem to have a foundation for that. She seems to be speculating.” The court observed, “That’s already come in.” Counsel argued the statement still could be stricken, and a limiting instruction still could be given. The court responded: “I think you waived it, and you didn’t object to it, and you said you were agreeing that the whole—the whole tape could come in, and now you don’t like what you’re hearing, and now you’re objecting.”
Nevertheless, after the entire tape was played, at the conclusion of Detective Wellhausen’s testimony on direct examination, the court gave the following admonition: “Ladies and Gentlemen, we’re going to take a break, but before I move on, there [were] some statements in that recording that were by the officer, and those statements [were] hearsay statements so you can’t consider those. And also [there were] some statements that reference what other people told them. Those are also hearsay statements.”
In this appeal, defendant argues the first 36 pages of the 94-page interview were “irrelevant, highly prejudicial and not admissible under any hearsay exception,” and defense counsel was remiss for failing to move to redact them. Specifically, defendant argues defense counsel should have moved in a timely fashion to redact T.K.’s statement that “it just was brought to my attention that he’s using drugs” and he might have been staying in some abandoned-looking apartments “at the dead-end on First Street. [¶] . . . [¶] . . . I’m like ‘Who would live down here? [¶] . . . [¶] Who—who—stays down here.’ So it has to be some dope down there.” Towards the end of the 36 pages, T.K. identified a female friend of defendant’s as “the one that calls herself his God sister. But I think they’re get high buddies.” Towards the end of the interview, the police asked T.K. where she thought defendant was coming from when he arrived at her apartment that night. T.K. responded she thought he was coming from the God sister’s house in San Francisco. She was “not sure” if this person was “a girlfriend but I think that they get high together.” Asked if defendant had any obvious tattoos by which he could be identified, T.K. also said defendant had a marijuana leaf tattooed on his back.
Defendant also complains of District Attorney Inspector Medina’s repeated statements to T.K. concerning his certainty that defendant was going to be charged with attempted murder (“you need to understand, . . . he’s gonna be charged with an attempted murder on a police officer”) and that the police might shoot him if they had to chase him down (“[a]nd you and I both know that that [attempted murder arrest warrant] puts a price tag on him, right?”). The inspector also told T.K. he was representing the district attorney’s office, where he had worked homicide for over 15 years, and “a lot of officers” were investigating “this thing tonight [¶] . . . [¶] . . . because of the component of attempted murder.” He told her defendant was looking at 50 years to life without the possibility of parole for two counts of attempted murder, and that “[p]eople that get wrapped up in this thing, if they cover up for him, are gonna pay less . . . but they’re gonna look at some time on a[n] attempted murder.” Evidently, the point of this exercise was to persuade T.K. to cooperate with the police, i.e., to stop lying to them, tell them where defendant was staying, or tell them if he was contacting her by phone.
The rules governing our review of ineffective assistance claims on appeal are well established. Under state law, “[a] defendant seeking relief on the basis of ineffective assistance of counsel must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel’s failings.” (People v. Price (1991) 1 Cal.4th 324, 440; People v. Anderson (2001) 25 Cal.4th 543, 569.) The rule is the same under federal law. “To establish ineffective assistance of counsel ‘a defendant must show both deficient performance by counsel and prejudice.’ ” (Premo v. Moore (2011) 562 U.S. 115, 121.) “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).)
In this context, “trial counsel’s tactical decisions are accorded substantial deference [citations] . . . . ‘A reviewing court will not second-guess trial counsel’s reasonable tactical decisions.’ ” (People v. Riel (2000) 22 Cal.4th 1153, 1185; Strickland, supra, 466 U.S. at pp. 689 [“[j]udicial scrutiny of counsel’s performance must be highly deferential”], 690 [“strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable”].) A reviewing court “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” (Strickland, at p. 689.) “There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.” (Ibid.) “ ‘The question is whether an attorney’s representation amounted to incompetence under “prevailing professional norms,” not whether it deviated from best practices or most common custom.’ ” (Premo v. Moore, supra, 562 U.S. at p. 122.) “Surmounting Strickland’s high bar is never an easy task.” (Padilla v. Kentucky (2010) 559 U.S. 356, 371.)
In addition, in cases where counsel was not asked why he or she failed to make a motion, and the appellate record does not shed light on counsel’s tactical reasons, “[a]n appellate court should not . . . set aside a jury verdict, and brand a defense attorney incompetent unless it can be truly confident all the relevant facts have been developed . . . .” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.) In such cases, “[r]ather than attempt to glean inferences from a record where the critical questions were irrelevant and unasked” (id. at p. 268), it is customary to affirm the judgment on direct appeal and permit the defendant to raise the issue on habeas corpus (id. at pp. 267–268).
Such is the case here. Although defendant argues counsel was ineffective for failing to move for redaction of the interview in a timely fashion, in fact counsel never asked to redact Inspector Medina’s references to attempted murder. Instead, she asked for a limiting instruction which, ultimately, the court gave. On this record, it is entirely possible counsel wanted the jury to hear Medina’s heavy-handed attempts to cow T.K. into cooperating with the police with respect to the assault charge, albeit with the caveat that nothing Medina said could be taken as true. Since defendant was not charged with two counts of attempted murder, showing Medina in action underscored the successful defense argument that the police reaction to defendant’s conduct was unreasonable and overblown. Under these circumstances, we are not prepared to brand defense counsel incompetent without more information.
Even assuming counsel had no tactical reason for failing to object ahead of time to T.K.’s speculative assumptions that defendant used drugs with his God sister, and frequented a drug house on First Street, we see no prejudice. In the first place, the court’s admonition told the jury to ignore such statements as hearsay. (“And also [there were] some statements that reference what other people told them.”) Under Strickland, defendant must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different; a reasonable probability is one that undermines confidence in the outcome. (Strickland, supra, 466 U.S. at p. 694.) Here, defendant was charged with three felonies. The jury outright rejected the most serious felony charge, assaulting a police officer with a deadly weapon. It rejected the felony charge of resisting an executive officer in favor of misdemeanor resisting arrest, and rejected the felony charge of injury to a spouse in favor of misdemeanor battery of a spouse. The record amply supports both misdemeanor convictions. On this record, defendant cannot show the probability of a better result if the jury had not heard about defendant’s tattoo, or T.K.’s speculations about his drug use, or Inspector Medina’s interrogation tactics. No ineffective assistance of counsel appears.
DISPOSITION
The judgment is affirmed.


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Dondero, J.


We concur:


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Humes, P. J.


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Margulies, J.