P. v. Allen

Filed 8/31/06 P. v. Allen CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Gary Lee Allen was convicted of inflicting corporal injury on a spouse and related charges. On appeal, he challenges: (1) the trial court’s exclusion of certain evidence reflecting unfavorably on his wife, (2) the trial court’s admission of evidence of prior incidents of domestic violence, (3) the trial court’s instruction to a deadlocked jury, and (4) the effective assistance of his counsel. We find no errors and affirm.

STATEMENT OF PROCEDURE

By amended information filed March 11, 2004, defendant was charged with assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1); count 1),[1] infliction of corporal injury on a spouse (§ 273.5, subd. (a); count 2), dissuading a witness (§ 136.1, subd. (b)(1); count 3), possession of ammunition by a felon (§ 12316, subd. (b); count 4), and possession of a firearm by a felon (§ 12021, subd. (a)(1); count 5). The information also alleged that defendant had a prior serious felony strike conviction (§§ 667/1170.12) and had served a prior prison term (§ 667.5).

Prior to trial, a hearing was held pursuant to Evidence Code section 402 on motions in limine. Trial began on March 11, 2004, and after several days of testimony and jury deliberations, the jury returned guilty verdicts on counts 2, 4 and 5, and on a lesser included offense, simple assault, as to count 1. The jury acquitted defendant on count 3.

On March 23, 2004, the court found the two enhancement allegations true, but later determined that the prior conviction did not qualify as a serious felony under sections 667.5/1192.7.

On September 17, 2004, the trial court sentenced defendant to a three-year midterm on count 2 and concurrent two-year terms on counts 4 and 5. The court imposed a concurrent jail term on the assault count and struck the prior prison term allegation.

Defendant timely appeals.

STATEMENT OF FACTS

In November of 2002, defendant and his wife Darien Allen were having marital problems, and Darien was planning to move out of their shared home. The couple had been married since 1999 and had a 12-year-old son. Defendant’s friend Kevin Otterbein, who worked with defendant in his motorcycle business, had been staying with the family.

On November 11, 2002, around 10:30 p.m., Darien was in the kitchen washing dishes. According to her, defendant was angry because she was planning to move out soon. Defendant came into the kitchen, grabbed her with both hands and pushed her backwards into the cabinets. Her head hit a cabinet, causing a large lump and a mild concussion. Darien screamed, and defendant then threw her to the floor where she landed on her back. When she was down on the floor, defendant grabbed her throat and started to choke her. Darien described how defendant’s right hand was around her neck with his thumb pressed into her windpipe on the right side and his fingers pressed into the left side. She identified this grip as an “eagle claw“ maneuver that defendant had shown her from his martial arts training. Defendant had braced himself with his left hand on the kitchen counter and pressed on her throat for a minute, preventing her from breathing. Although she struggled at first, she soon started to lose consciousness. She thought defendant was going to kill her.

Otterbein had been outside the house smoking a cigarette when he heard defendant and Darien yelling at each other. He hesitated to get involved in their problems, but after he heard a woman’s scream, he went inside. He saw the two in the kitchen, with Darien on the floor and defendant standing over her strangling her, with one hand on her throat and the other hand bracing himself on the kitchen counter. Otterbein saw that Darien was not moving, she had no color in her face and her eyes were rolled back. He asked defendant what he was doing and urged him to release Darien, saying “Man, you’re blowing it, dude. Get off of her.” When defendant did not move, Otterbein grabbed his arm and shoved him off Darien. Defendant did not struggle.

Darien recalled hearing Otterbein’s voice and then the pressure on her throat let up. She still felt a sharp pain, but she got up and tried to catch her breath. Otterbein saw Darien hold her throat and cough as if she was having trouble breathing. Otterbein told the two not to fight any more and went outside.

When Darien walked into the living room to call the police, defendant followed her and kept her from making the call. He threatened her and told her that if she called the police she would ruin several people’s lives, meaning the employees of his new company. Darien went outside to use her cell phone to call the police, but defendant continued to follow her and threatened to “stick a knife in [her] skull.” She took his threat seriously because he owned several knives. Defendant got in his truck and followed her as she walked back and forth on the sidewalk. Darien went back in the house and called defendant’s father, who advised her to call the police. She did.[2] By this time, Otterbein had convinced defendant to leave.

Before the police arrived, Darien told Otterbein to stay in a back room of the house because she knew he was on parole[3] and there were weapons in the house. When the police arrived, they took photographs of her injuries, which were admitted into evidence at trial. Darien had swelling and redness at the back of her head, a red mark on her throat by her windpipe and several red marks down the left side of her neck. She refused to go to the hospital with the emergency medical personnel that night, but she went the next day. The doctor told her she had a bruised larynx and a concussion. She had nausea and headaches for several days, as well as difficulty swallowing and eating.

When the police asked if there were any weapons in the house, Darien showed them defendant’s .22 rifle and ammunition in the bedroom closet. The police seized these items. According to Darien, about two weeks before the assault, defendant had threatened her with the rifle because he was angry that she was planning to move out. Darien reported other incidents of domestic violence over the years, including defendant slapping her in the face, hitting her with his hand and throwing a metal jack stand at her.

Although he was on parole, Otterbein talked to the police the next day and essentially confirmed Darien’s story. Several days later, he met defendant, who asked him to lie and say that Darien brought the guns into the house. At the time of trial, Darien and Otterbein were living together. They had started dating about a month and a half after the incident.

At trial, several witnesses testified against Darien. Her former husband Jeffrey Etheridge testified that he did not physically abuse her and that, although she made similar charges of physical abuse against him, he was never prosecuted for any assault on her.[4] Another former roommate testified that when he had an abscessed tooth and could not afford dental care, Darien, who was a dental assistant, used dental implements and anesthetic and removed the tooth, a procedure she was not licensed to perform. Darien also admitted a prior conviction for petty theft in 1989.

DISCUSSION

I. Exclusion of Impeachment Evidence

Defendant first contends that the trial court’s order prohibiting his cross-examination of Darien about an alleged theft of his father’s boat violated his Sixth Amendment right to confrontation and Evidence Code section 352.

A. Background

By motion in limine, the prosecutor sought to exclude evidence about defendant’s father’s boat, which was stored at the home of defendant and Darien. Defense counsel wanted to question Darien and defendant’s father about Darien’s alleged removal of the boat without the owner’s permission. Such evidence was relevant, according to defendant, to show Darien fabricated the charges against him in order to take his possessions and to gain custody of their son.

Before trial, a hearing was held pursuant to Evidence Code section 402. Gary Lee Allen, Sr., defendant’s father, testified that he owned a 1959 mahogany Bristol Pleasure boat, which had been stored at the home of defendant and Darien, and that he had not given anyone permission to move the boat. Defense counsel stated he was in possession of a note written by Darien in December 2002, giving a named person permission to transport the boat. The prosecutor asserted that the boat had to be moved because Darien was dissolving the household.

The trial court stated: “With respect to the issue on the boat, I think that [the prosecutor] has made this point in chambers that pretty much in life there’s going to be something that people disagree on whether or not it’s accurate or being honest. I think if you’re going to impeach, it has to be something material. I don’t think that the note she wrote about the boat is material. And I think it’s going to unduly consume time and it just, in that sense, the [Evidence Code section] 352 analysis is something that I would rule as not coming in . . . .”

B. Evidence Code section 352

The trial court concluded that under Evidence Code section 352 the introduction of evidence concerning the boat would not be material and would unduly consume time. Defendant argues this ruling was incorrect because (1) Darien’s act of taking or moving a boat that did not belong to her was an act of moral turpitude and thus reflected on her credibility, and (2) both people to be questioned (Darien and defendant’s father) were witnesses at trial and brief questions could have been asked of them.

It is well established that “[a] trial court may exclude evidence under Evidence Code section 352 if its probative value is substantially outweighed by the probability that admission will unduly consume time, create a substantial danger of undue prejudice, confuse the issues, or mislead the jury. (Evid. Code, § 352.)” (People v. Mincey (1992) 2 Cal.4th 408, 439.) In addition, “[t]he court’s exercise of discretion will not be reversed on appeal absent a clear showing of abuse. [Citation.]” (Ibid.)

Defendant sought to question the witnesses about the movement of the boat in order to reflect on Darien’s basic credibility as well as to shed light on her motive in allegedly fabricating the charges against defendant. Certainly a matter collateral to the essential issue in an action may be relevant to the credibility of a witness. (People v. Rodriguez (1999) 20 Cal.4th 1, 9.) “As with all relevant evidence, however, the trial court retains discretion to admit or exclude evidence offered for impeachment. [Citations.]” (Ibid.) Our Supreme Court has noted that “[m]isconduct involving moral turpitude may suggest a willingness to lie . . . .” (People v. Wheeler (1992) 4 Cal.4th 284, 295-296.) But the Wheeler court went on to caution trial courts about admitting such evidence: “Of course, the admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude. Beyond this, the latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues. . . .

When exercising its discretion under Evidence Code section 352, a court must always take into account, as applicable, those factors traditionally deemed pertinent in this area. [Citations.] But additional considerations may apply when evidence other than felony convictions is offered for impeachment. In general, a misdemeanor--or any other conduct not amounting to a felony--is a less forceful indicator of immoral character or dishonesty than is a felony. Moreover, impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.” (People v. Wheeler, supra, 4 Cal.4th at pp. 296-297, fns. omitted.)

The trial court reasoned that the note allegedly written by Darien was not material to her credibility and the testimony necessary to explain the issue would unduly consume jury time. We agree. The direct reflection on Darien’s believability as a witness is not readily apparent because there was no further evidence that she in fact stole the boat or converted it. The prosecutor’s explanation that Darien had to move the boat because she was vacating the premises is logical and does not readily impugn her credibility.

In any event, Darien was impeached at trial with other evidence of her dishonesty or illegal acts, including her admission that she had been convicted of petty theft, evidence concerning a dental procedure that she was not licensed to perform, and testimony from her former husband about false allegations of abuse.

C. Violation of Confrontation Rights

Defendant further contends that the trial court’s ruling violated his right to confrontation under the Sixth Amendment by prohibiting him from questioning Darien about her alleged misappropriation of the boat.

First, we observe that our Supreme Court has repeatedly stated that excluded evidence does not usually deprive a defendant of his constitutional rights to present a defense. “Application of the ordinary rules of evidence, as the trial court did here, does not impermissibly infringe on a defendant’s right to present a defense. (People v. Hall (1986) 41 Cal.3d 826, 834.)” (People v. Mincey, supra, 2 Cal. 4th at p. 440; see also, People v. Rodriguez, supra, 20 Cal.4th at p. 10, fn. 2.)

Defendant relies primarily on the case of Davis v. Alaska (1974) 415 U.S. 308. “[T]he exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.” (Id. at p. 316-317.) Moreover, “[t]he partiality of a witness is subject to exploration at trial, and is ‘always relevant as discrediting the witness and affecting the weight of [her] testimony.’ “ (Ibid.) Defendant also cites Delaware v. Van Arsdall (1986) 475 U.S. 673: “[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby ‘to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.’ “ (Id. at p. 680.)

However, in Delaware v. Van Arsdall, supra, 475 U.S. 673, the Supreme Court also noted that trial courts retain wide latitude under the Confrontation Clause “to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” (Id. at p. 679.) As our Supreme Court explained in People v. Harris (1989) 47 Cal.3d 1047: “Nothing in the Davis opinion suggests that the court intended to abrogate the power of trial courts to restrict cross-examination, even that by defendants, under well-established principles such as those reflected in Evidence Code section 352, i.e., if the probative value of the evidence ‘is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, or confusing the issues, or of misleading the jury.’ “ (Id. at pp. 1090-1091.)

Here, Darien’s credibility was challenged by the admission of evidence of her prior bad conduct, her unlicensed dental procedure, and her accusation against a former husband of similar domestic violence. This was not the situation in the Davis case, where the defendant was not allowed to impeach the credibility of a key prosecution witness. (Davis v. Alaska, supra, 415 U.S. at p. 309.) “The federal Constitution’s confrontation right is not absolute; it leaves room for trial courts to impose reasonable limits on a defense counsel’s cross-examination of a witness. (Delaware v. Van Arsdall[, supra,] 475 U.S. [at p.] 679; People v. Box (2000) 23 Cal.4th 1153, 1203.)” (People v. Sapp (2003) 31 Cal.4th 240, 290.) As the Supreme Court stated in Delaware v. Fensterer (1985) 474 U.S. 15, 20, “[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent the defense might wish.”

Defendant further argues that the erroneous exclusion of the boat evidence was not harmless beyond a reasonable doubt, because the decision against defendant was close, as demonstrated by the jury’s request for readback of testimony and the hung jury on two counts. However, as we have concluded that the trial court did not err in excluding the evidence and that defendant’s Sixth Amendment right to confrontation was not violated, we need not consider this claim.

II. Evidence Code section 1109

Defendant next contends that the trial court prejudicially erred by admitting evidence of 10-year-old allegations of domestic violence.

A. Background

The prosecutor filed a motion in limine to admit evidence of several incidents of domestic violence by defendant. (Evid. Code, § 1109.) At the hearing held pursuant to Evidence Code section 402, Darien testified to the following: (1) In 1993 or 1994, when defendant was driving Darien to the hospital because she was feeling dizzy after a car accident, he hit her in the face and cut her lip, (2) also in 1993 or 1994, defendant slapped her in the face as she was getting out of the shower and she fell to the floor, (3) in February 1994, defendant shoved and hit her, (4) in 1994 or 1995, defendant threw a metal jack stand at her, but she ducked and it missed her, and (5) the week before the charged incidents, defendant threatened Darien with a rifle in their home in front of their son.

The trial court ruled that the evidence was admissible: “The information is admissible under [Evidence Code section] 1109. I want to invite a discussion on [Evidence Code section] 352, so we could have a clear record. I believe there are so many incidents that would be unduly prejudiced because of the cumulative--because of the undue consumption of time or because of the prejudicial effects. I’ll just allow questioning on all of these incidents and not--and not exclude any of them.”[5]

B. Analysis

Evidence Code section 1109 permits the introduction of evidence of the defendant’s commission of other acts of domestic violence in a criminal action in which the defendant is accused of an offense involving domestic violence, “if the evidence is not inadmissible pursuant to Section 352.” (Evid. Code, § 1109, subd. (a)(1); see People v. Jennings (2000) 81 Cal.App.4th 1301, 1313-1314.) “Section 1109 conditions the introduction of prior domestic violence evidence on an evaluation under section 352 of whether the evidence is more probative than prejudicial. A careful weighing of prejudice against probative value under that section is essential to protect a defendant’s due process right to a fundamentally fair trial. [Citations.]” (People v. Jennings, supra, at pp. 1313-1314.)

The Jennings court explained: “Under [Evidence Code] section 352, a trial court may in its discretion exclude material evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time, or create a substantial danger of undue prejudice, confusion of the issues, or misleading the jury. The weighing process under [Evidence Code] section 352 depends upon the trial court’s consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules. [Citations.] We will not overturn or disturb a trial court’s exercise of its discretion under [Evidence Code] section 352 in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious and patently absurd. [Citations.]” (People v. Jennings, supra, 81 Cal.App.4th at p. 1314.)

Defendant now asserts the prior acts of domestic violence were too remote to be probative. The statute provides that “Evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice.” (Evid. Code, § 1109, subd. (e).) Here, the oldest act described by Darien occurred in 1993 or 1994, or less than 10 years before the charged acts in 2002. Moreover, defendant failed to object below to the admission of the evidence on this specific ground, thus arguably failing to preserve the objection for review. (See Evid. Code, § 353; People v. Kipp (2001) 26 Cal.4th 1100, 1124.)

In fact, at the foundational hearing, defense counsel essentially conceded the admissibility of the evidence and noted that Darien’s credibility affected the weight of the evidence. Counsel then asserted there were too many incidents and some were not substantiated by any records. The trial court apparently ruled that testimony on all the incidents was admissible.[6]

Defendant also claims the trial court did not give reasons for its decision. However, “when ruling on a[n Evidence Code] section 352 motion, a trial court need not expressly weigh prejudice against probative value, or even expressly state it has done so. All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under Evidence Code section 352.” (People v. Williams (1997) 16 Cal.4th 153, 213.) Under Evidence Code section 1109, nothing more is required. (People v. Jennings, supra, 81 Cal.App.4th at p. 1315.)

Here, the trial court acknowledged Evidence Code section 352 and the principles involved in ruling on defendant’s objection. The prior incidents were no more egregious than the charged offense, they posed no danger of confusing the jury, and they provided evidence of an on-going pattern of abuse. (Cf. People v. Jennings, supra, 81 Cal.App.4th at pp. 1315-1316.) We see no abuse of discretion by the trial court.[7]

III. Instruction on Deliberation

Defendant also asserts the trial court’s instruction to the jury to continue deliberations coerced a verdict in violation of his rights to due process, a fair trial, and a unanimous verdict. (U.S. Const., Amend. VI, XIV; Cal. Const., art. I, § 16.)

A. Background

The case was submitted to the jury in the late afternoon of March 16, 2004. The next morning the jury requested a readback of certain parts of the record: the testimony of defendant’s father and specific testimony by Darien and by Kevin Otterbein concerning the time of the incident and the location of the parties’ son at that time. Then, the following morning the jury sent a request: “We would like guidance as to what standards of deliberation or methods of persuasion we should meet or use before declaring a hung jury.”[8] The trial court then carefully questioned the jury in order to ascertain whether more than one charge was involved and how many votes had been taken. The court offered to provide additional readback or to answer questions from the jury and then sent the jury back for a five minute caucus to see if there was anything further the court could provide to assist the jury in reaching a verdict. The court stated for the record the fact that counsel had previously approved the responses made by the court. In further discussions with the court, both counsel urged that the court ask the jury to keep deliberating.

When the jury returned, the court inquired: “Was there anything else we could give you or provide that would help the deliberations on those counts for which you have not reached a verdict?” The response was “No, Your Honor. We have no further request for readback.” “THE COURT: Do you feel Mr. (Foreperson) that the jury would benefit from deliberating further on the charges that you’ve reached verdicts on?

THE FOREPERSON: Given the opinions of --no, I do not.”[9]

“THE COURT: I appreciate that feedback and I respect that. If you could just go and deliberate further on those counts you don’t have verdicts on, but deliberate for as long as you believe that is required. So I’m not saying you have the whole rest of the day. I’m not saying you have to go five minutes for you to be--how long you believe is required to reach verdicts on those charges where you have not yet reached verdicts.

Where you’ve reached verdicts, we’ll give you envelopes. And if you could please put the charges you’ve reached in the envelopes and give them to Mike. We’ll hold them for safekeeping.

JUROR NO. 6: Your Honor, I want to ask, so if we’re hung on one or two issues, everything is not hung, right?

. . .

THE COURT: Yes, that’s correct. If you have verdicts on some of the charges, you have verdicts on some of the charges. Just issues that you would--

[DEFENSE COUNSEL]: Your Honor, may I ask if the jury is referring to issues or counts?

JUROR NO. 6: Counts.

THE COURT: That’s okay. No problem.

Be guided by your conscious [sic] and thank you very much and just let us know when you’re ready to come out. And Mike will take those verdicts from you.”

The record reflects that the jury returned with its verdicts on all counts 40 minutes later.

B. Analysis

Defendant argues that this instruction by the trial court, in essence to deliberate until they had a verdict, was a form of jury coercion that is not allowed. Defendant further asserts that the court incorrectly advised the jurors to be guided by their “conscience” when in fact they are required to be guided by the evidence and the law.

Section 1140 provides: “Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.” The trial court has the responsibility to determine whether further deliberations might be helpful. “The determination, pursuant to section 1140, whether there is a ‘ “reasonable probability” ‘ of agreement, rests within the sound discretion of the trial court. (People v. Miller (1990) 50 Cal.3d 954, 994.) Although the court must take care to exercise its power without coercing the jury into abdicating its independent judgment in favor of considerations of compromise and expediency (ibid.), the court may direct further deliberations upon its reasonable conclusion that such direction would be perceived ‘ “as a means of enabling the jurors to enhance their understanding of the case rather than as mere pressure to reach a verdict on the basis of matters already discussed and considered.” [Citation.]’ (Ibid.)” (People v. Proctor (1992) 4 Cal.4th 499, 539.)

We do not view the trial court’s comments as coercing the jury to reach a verdict. Rather, the court elicited information from the jury to determine whether it was deadlocked on all counts or some counts and then encouraged it to try again to reach a verdict. Nothing in the language used by the court violated the proscriptions of the Supreme Court in People v. Gainer (1977) 19 Cal.3d 835. In Gainer, our Supreme Court disapproved a charge to a deadlocked jury which encouraged the minority jurors to rethink their position in light of the majority’s views because such an instruction encouraged the jurors to abandon a proper focus on the evidence. (Id. at pp. 845-848.) The Gainer court also cautioned against an instruction that informed the jury that the case must at some time be decided. (Id. at pp. 851-852.)

Here, with the agreement of counsel, the trial court urged the jury to continue deliberating, but left in the jury’s control the amount of time the jurors felt was productive to continue deliberating. When the statements are read in context, the court did not direct the jury that it must reach a verdict. (Cf. People v. Proctor, supra, 4 Cal.4th at p. 539, People v. Moore (2002) 96 Cal.App.4th 1105, 1121.) As to the trial court’s comment to the jurors to be guided by their consciences, we find no improper statement. The comment, when read in context, refers to the jury’s ability to determine for itself the appropriate time period for deliberation. We find no error.

IV. Ineffective Assistance of Counsel

Finally, defendant maintains he received ineffective assistance of counsel when his counsel failed to obtain a ruling on his motion to reduce the conviction on count 2 [infliction of corporal injury on a spouse, section 273.5, subdivision (a)] from a felony to a misdemeanor.[10] Prior to sentencing, defendant filed a Statement in Mitigation in which he moved to have his felony conviction on count 2 reduced to a misdemeanor. (§ 17.) This would have removed his limited probation eligibility under section 1203, subdivision (e)(4).[11] At the sentencing hearing, defense counsel argued in favor of the reduction and in favor of a grant of probation. The court then asked the prosecutor to respond, specifically to the “Section 17 issue.” After stating on the record that it had reviewed the probation report and the statements in mitigation, including the attachments, as well as talking with counsel, the court denied probation and sentenced defendant to a three-year midterm on count 2 and concurrent two-year terms on counts 4 and 5.

According to defendant, his counsel should have requested a specific ruling on the motion or should have objected when the court inquired as to whether there was any legal cause why sentence should not be imposed.[12] He insists that due to his participation in various programs while incarcerated, his earlier successful completion of parole and his prospects for success on probation, including gainful employment and a stable new family, the court would have reduced his felony conviction to a misdemeanor and placed him on probation. Thus, he concludes, he was prejudiced by his counsel’s ineffective assistance.

“ ‘In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was “deficient” because his “representation fell below an objective standard of reasonableness . . . under prevailing professional norms.” [Citations.] Second, he must also show prejudice flowing from counsel’s performance or lack thereof. [Citation.] Prejudice is shown when 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 a probability sufficient to undermine confidence in the outcome.” [Citations.]’ “ (In re Harris (1993) 5 Cal.4th 813, 832-833.) The defendant has the burden to demonstrate the inadequacy of his trial counsel. (People v. Lucas (1995) 12 Cal.4th 415, 436.)

Certainly a trial court has broad discretion under section 17 to reduce certain felony convictions to misdemeanors. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977; People v. Hawkins (2002) 98 Cal.App.4th 1428, 1457.) Here, the trial court denied probation and sentenced defendant to the midterm, referring to the reasons stated in the probation report. By denying probation and sentencing defendant to a prison term, the court implicitly denied defendant’s motion. Nothing requires the court to specify further reasons or to elaborate on its decision.

In any event, defendant has not shown a reasonable probability of a different result. The probation report recommended a mid term of three years. The report noted defendant’s criminal record, which included six prior felony convictions and multiple misdemeanor convictions, as well as several factors in aggravation and mitigation, and recommended striking the prior prison term enhancement. The prosecutor argued strenuously for a longer term and objected to the court striking the enhancement for the prior prison term. We see no reasonable probability of a different result.

DISPOSITION

The judgment is affirmed.

Duffy, J.

WE CONCUR:

Mihara, Acting, P.J.

McAdams, J.

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

[2] The tape recording of Darien’s call to 911 was played for the jury.

[3] Otterbein was on parole for possession of a controlled substance and was due to be discharged in November 2004. He had other prior convictions, including burglary, attempted burglary, receiving stolen property, falsely reporting an emergency, using a forged access card, providing a false name to the police, and vehicle theft.

[4] Etheridge denied Darien’s accusation that he sexually abused their son. He also claimed that he did not respond to her successful request for a restraining order against him. Etheridge had served a prison sentence for possessing and manufacturing methamphetamine.

[5] Although the transcript of the trial court’s comments is somewhat ambiguous, both parties agree the court found the evidence not inadmissible under Evidence Code section 352.

[6] The trial court had excluded evidence of an allegedly similar assault by defendant against a former wife in 1986 as more prejudicial than probative.

[7] The Attorney General also argues the prior incidents of domestic violence were separately admissible under Evidence Code section 1101, subdivision (b), as showing a pattern of violence against Darien, which was relevant on the count of attempting to dissuade the victim from reporting the assault. (See People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1610-1614; People v. Zack (1986) 184 Cal.App.3d 409, 415.)

[8] According to the transcript, the trial court read the jury’s request as “ ‘We would like guidance as to what methods of pursuing [sic] we should meet or use before declaring a hung jury.’ “

[9] It is unclear from the transcript whether the trial court misspoke in asking about further deliberations on the charges “that you’ve reached verdicts on.”

[10] Section 273.5, subdivision (a) provides in relevant part: “Any person who willfully inflicts upon a person who is his or her spouse, . . . corporal injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.”

[11] Section 1203, subdivision (e)(4) provides: “(e) Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons:

. . .

(4) Any person who has been previously convicted twice in this state of a felony . . . .”

[12] Defense counsel responded: “Not to my knowledge.”