Filed 9/27/17 P. v. Guerrero CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Debra Harris, Judge. Affirmed.

Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, and Christen Somerville, Deputy Attorneys General, for Plaintiff and Respondent.

I

INTRODUCTION

Defendant Juan Pablo Guerrero appeals from judgment entered following jury convictions for elder abuse of his mother (Pen. Code, § 368, subd. (b)(1)[1]; count 1); criminal threats against defendant’s mother (§ 422; count 2); and assault likely to cause great bodily injury (GBI) against defendant’s sister (§ 245, subd. (a)(4); count 3). The jury also found true allegations of GBI as to count 3, but not as to count 1. The court sentenced defendant to a prison term of eight years eight months.

Defendant contends he received ineffective assistance of counsel (IAC) on the grounds his trial attorney (1) failed to object to admission of evidence of a prior conviction for assault, (2) failed to request a limiting instruction regarding the prior assault evidence, and (3) failed to object to the prosecutor’s closing argument regarding the prior assault evidence. Defendant also objects to being sentenced separately on counts 1 and 2 in violation of section 654. We reject defendant’s contentions and affirm the judgment.

II

FACTS

In 2013, defendant was homeless and abusing drugs. His mother (Mother) asked her daughter, defendant’s sister (Sister), to allow defendant to live in her home. On December 13, 2013, defendant moved into Sister’s home. Mother, who was 73 years old, lived there as well. While living at Sister’s home, defendant acted strangely. He said he was invisible, that he was a millionaire, that he could die and come back to life, and that he was close to God and could make things happen. When defendant was on drugs, he was violent and talked about death and killing people.

On January 16, 2014, Sister drove Mother to a doctor’s appointment in Long Beach. Defendant went along. When they returned home in the afternoon, Sister began preparing lunch. Sister testified that defendant said he wanted to leave to get some meat. She told him not to go because she had already prepared lunch. When Sister went to the door to let the cat outside, defendant came at her from behind with his fist in the air. He punched Sister in the head and pushed her to the ground, knocking her unconscious. He then kicked and hit her all over her body.

Mother testified that after defendant and Sister had some sort of argument regarding lunch, defendant pushed Sister and she fell to the ground. Mother tried to stop defendant from attacking Sister by grabbing defendant’s shirt. Mother feared defendant would kill Sister. Mother was aware defendant had previously attacked his father (Father). Defendant turned around toward Mother and threatened to kill her. He then punched her in the face, hit her in the back, and threw her to the ground. Mother feared for her life. Her face was swollen and her head hurt from defendant’s punch. While Mother and Sister lay on the ground, defendant went outside and called the police.

Deputy Gordon responded to defendant’s 911 call. She found him outside Sister’s home in the front yard. Defendant told Gordon he had knocked out his mother and sister and they needed medical attention. Defendant said that his sister had thrown a plate at him and had tried to hurt him, and his mother tried to defend Sister and gouge out his eyes. Defendant yelled that it was their fault. He was just acting in self-defense. When Gordon entered Sister’s home, she found Sister and Mother on the living room couch. Mother had a bump on her head. The side of Sister’s face was swollen and she complained of pain. Defendant was agitated and pacing in and out of the house. Defendant began yelling at Gordon that it was her duty to save Mother and Sister, and get them medical care, because defendant had knocked them out. Gordon asked defendant if he had been using drugs. Defendant became upset and told Gordon she could not ask him that. When Gordon and another deputy placed defendant in the patrol car, he began hitting his head against the glass. The deputies placed defendant in restraints for his own protection.

Defendant testified he got into a fight with Sister over lunch. She started screaming at him and grabbing him. Sister then threw a plate at him which broke on the wall. When she ran toward a vase, which defendant feared she was going to throw at him, defendant ran toward her and grabbed her hands to protect himself. Sister then tried to stab him in the neck with a pen. Mother grabbed his shirt and told him not to hit Sister. Suddenly Sister had a seizure and fell to the floor. Mother also fell because defendant removed his shirt that Mother was tugging on.

Dr. De Guzman testified she examined Sister two days after the charged crimes. Sister had a sprained ankle and a moderate concussion. De Guzman observed Sister had a bump on her head, her left jaw and lip were swollen, her cheek was bruised, and her right ankle was swollen. Sister complained of nausea, dizziness, headaches, and knee and ankle pain.

III

ADMISSIBILITY OF EVIDENCE OF PRIOR OFFENSE

Defendant contends the trial court abused its discretion in allowing evidence that a year before the charged offenses, defendant assaulted Father (the prior assault). Defendant argues the evidence was inadmissible character evidence under Evidence Code section 1101, subdivision (a). Defendant acknowledges that he forfeited his objection to the evidence but alternatively argues that his attorney committed IAC by failing to object to the evidence and the prosecutor’s closing argument, and by failing to request an instruction limiting the jury’s use of the prior assault evidence to the issue of Mother’s sustained fear.

We conclude there was no IAC because the prior assault evidence was admissible and the prosecutor’s closing argument was proper. While defense counsel could have requested a limiting instruction on the use of the prior assault evidence, defense counsel’s failure to do so does not constitute IAC.

A. Procedural Background

Before the trial, defense counsel told the court that the prosecutor had said the People would not be using the prior assault evidence as propensity evidence under Evidence Code section 1109. The People would only be using the evidence to establish Mother’s state of mind for purposes of proving the section 422, criminal threat offense. The trial court then summarized its in camera tentative ruling that the prior assault evidence could be used to prove the element of reasonable fear. The court noted defendant had expressed concern that the evidence would be used for propensity, and the prosecutor had stated it would not do so. Defense counsel objected to the prior assault evidence on the ground it should be excluded under Evidence Code section 352. The trial court disagreed, stating the evidence would not result in an undue consumption of time and, although there was the danger of the evidence being considered as propensity evidence, the evidence was highly probative as to the criminal threat element of fear. The People responded that they did not intend to use the evidence as propensity evidence, although under Evidence Code section 1109, it was admissible as propensity evidence. The People stated it was not necessary to admit the evidence under Evidence Code section 1109, because the evidence was admissible to establish the fear element.

During the trial, Mother testified that defendant threatened to kill Sister, and Mother feared he would do so. When the prosecutor asked if defendant had attacked Father in the past, defense counsel objected based on relevance and lack of foundation. The trial court overruled the objections. Mother testified that defendant “threw punches” at Father and told him he would have killed Father if he had a gun. The prosecutor asked Mother if Father had obtained a restraining order against defendant. Defense counsel objected based on lack of foundation and hearsay. The court sustained defendant’s objections. In response to the prosecutor’s inquiry of whether defendant had ever threatened his family, Sister responded that defendant had threatened her brothers, sisters, and Mother, and was physically violent with Father. Sister did not know whether Father was hospitalized.

B. IAC Applicable Law

In order to successfully challenge a guilty conviction on the ground of IAC, a defendant must establish both: “‘(1) that counsel’s representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails. Moreover, “‘a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.’ [Citation.]”’” (People v. Holt (1997) 15 Cal.4th 619, 703 (Holt), quoting People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.)

“Because we are limited to the record on appeal, we must reject the contention that counsel provided ineffective assistance if the record sheds no light on why counsel acted or failed to act in the manner challenged unless (1) counsel was asked for and failed to provide a satisfactory explanation or (2) there simply could be no satisfactory explanation.” (People v. Burgener (2003) 29 Cal.4th 833, 880.) In reviewing an IAC claim, this court must view defense counsel’s actions with deference and indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. (Strickland v. Washington (1984) 466 U.S. 668, 689; Holt, supra, 15 Cal.4th at p. 703.)

C. Admissibility of Evidence of Defendant’s Prior Assault Offense

Defendant contends his attorney should have objected to the evidence of his prior assault because the evidence was inadmissible character evidence under Evidence Code section 1101, subdivision (b) and unduly prejudicial under Evidence Code section 352. We disagree and reject defendant’s IAC challenge on the ground the trial court likely would have overruled an objection to the prior assault evidence and related closing argument, because the evidence was admissible. In making this determination, we apply the following principles. Only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is broadly defined as that having a “tendency in reason to prove or disprove any disputed fact that is of consequence” to resolving the case. (Evid. Code, § 210.) All relevant evidence is admissible, unless a specific statutory or constitutional provision bars its admission. (Evid. Code, §§ 350, 351; Cal. Const., art. I, § 24.)

Defendant argues the prior assault evidence is inadmissible propensity evidence under Evidence Code section 1101, subd. (a).[2] Evidence Code section 1101(a) prohibits admission of character evidence if offered to prove conduct in conformity with that character trait, commonly described as a propensity to act in a certain way. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 405-406.) Section 1101, subdivision (b), however, “provides that ‘[n]othing in this section’ prohibits the admission of uncharged acts to prove a fact ‘other than [a person’s] disposition to commit such an act.’ Section 1101(b) is not an exception to section 1101(a). Section 1101(a) prohibits the use of character to prove conduct. Section 1101(b) provides for the admission of uncharged acts when relevant to prove some other disputed fact. The true exceptions to section 1101(a) are set out in Evidence Code sections 1102, 1103, 1108, and 1109.” (Bryant, Smith and Wheeler, at p. 406.)

The prior assault evidence is admissible to prove, among other things, defendant’s motive or intent during the commission of the charged crimes. (Evid. Code, § 1101.) Such evidence of uncharged crimes is normally admissible “‘only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent.’” (People v. Foster (2010) 50 Cal.4th 1301, 1328, quoting People v. Kipp (1998) 18 Cal.4th 349, 369.)

In the instant case, evidence of defendant’s prior assault on Father was relevant to show that defendant intended to threaten Mother. Because Mother witnessed defendant’s prior assault upon Father, the prior assault evidence was also relevant to show that, during the charged criminal threat offense, Mother experienced sustained fear for her safety and the fear was reasonable. The circumstances of defendant’s prior assault upon Father are similar to those of the charged offenses of threatening to kill Mother and assaulting her, as well as Sister. In both the prior and charged offenses, defendant physically attacked close family members. Evidence of defendant’s prior acts of violence against his father was therefore relevant to and probative of “whether defendant intended to make a threat, whether the charged threat caused [Mother] to be in sustained fear for her safety, and whether such fear was reasonable.” (People v. Fruits (2016) 247 Cal.App.4th 188, 204; see People v. Wilson (2010) 186 Cal.App.4th 789, 808 [victim’s knowledge of the defendant’s prior conduct is relevant to establishing the victim was in a state of sustained fear within the meaning of section 422.].

There was also additional good reason for defense counsel not objecting to the prior assault evidence, not only because it was admissible to prove Mother’s fear, but also because the evidence was admissible under Evidence Code section 1101, subdivision (b) as to counts 1 and 3, to show a common scheme or design in assaulting Mother and Sister. Defendant argued at trial that he mistakenly injured Mother, but this was refuted by Sister’s testimony that defendant had previously threatened his brothers, sisters, and Mother, and had also gotten into a physical altercation with Father.

In addition, the prior assault evidence was admissible under Evidence Code section 1109, to prove elder abuse against Mother. Evidence Code section 1109, subdivision (a)(2) provides in relevant part: “n a criminal action in which the defendant is accused of an offense involving abuse of an elder . . . , evidence of the defendant’s commission of other abuse of an elder . . . is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.” In determining whether the prior assault evidence was admissible to prove Mother’s fear, the trial court appropriately weighed the probative value and prejudicial nature of the evidence under Evidence Code section 352. The court reasonably concluded the probative value of the evidence was not substantially outweighed by the risk of prejudice. Any prejudice was minimal. Only very limited facts were provided as to defendant’s prior assault of Father, minimal trial time was expended presenting the evidence, the charged offenses were far more serious than the prior assault, and the brief, sanitized evidence of the basic facts of the prior assault was not likely to inflame the jury.

Although the trial court did not state it relied on these additional grounds (§§ 1101, subd. (b), 1109) for allowing the prior assault evidence, there was good reason for defense counsel not to object to the evidence. The evidence was admissible based on multiple grounds. “Because there was no sound legal basis for objection, counsel’s failure to object to the admission of the evidence cannot establish ineffective assistance.” ([i]People v. Cudjo (1993) 6 Cal.4th 585, 616.) In addition, an objection would have drawn further attention to the prior assault. This court must indulge a strong presumption that defense counsel’s decision not to object falls within the wide range of reasonable professional assistance. Defendant has not overcome the presumption that defense counsel’s challenged action of not objecting to the evidence was sound trial strategy. (People v. Thomas (1992) 2 Cal.4th 489, 531.) Furthermore, any deficiency in defense counsel not objecting to the prior assault evidence is harmless error because it is probable that, even if defense counsel objected, the trial court would have overruled the objection. (Holt, supra, 15 Cal.4th at p. 703.)

D. Defense Counsel’s Failure to Request a Limiting Instruction

Defendant argues IAC based on his trial attorney’s failure to request a limiting instruction, instructing the jury that it could only use the prior assault evidence to determine whether Mother experienced reasonable, sustained fear of defendant when he threatened her in violation of section 422.

“If evidence is relevant and admissible for one purpose, but inadmissible if considered for another purpose, the trial court must admit it but, upon request, limit its proper scope and so instruct the jury. (Evid. Code, § 355.)” (People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 405.) As discussed above, evidence of defendant’s prior assault was relevant to prove some fact other than propensity. The evidence was therefore admissible, subject to a limiting instruction upon request. (Ibid.) There was no request for a limiting instruction. Therefore the court did not instruct the jury that consideration of the prior assault evidence was limited to the issue of defendant’s mother’s sustained fear and could not be considered as character evidence.

It is unknown from the record on appeal as to why defense counsel did not request a limiting instruction. But there are legitimate tactical reasons for not doing so. Counsel may have not requested a limiting instruction because it would have drawn greater attention to defendant’s prior assault and because defense counsel may have wanted to avoid bringing to the prosecutor’s attention the benefit of seeking admission of the evidence as propensity evidence under Evidence Code section 1109. The record sheds no light on why defense counsel did not request a limiting instruction, and there are valid reasons for not doing so. (People v. Burgener, supra, 29 Cal.4th at p. 880.) A reasonable attorney could have tactically concluded that the risk of requesting a limiting instruction outweighed any questionable benefits such instruction would provide. (People v. Hernandez (2004) 33 Cal.4th 1040, 1053.)

E. Failure to Object to the Prosecutor’s Closing Argument

During closing argument, the prosecutor argued that defendant “turns his anger toward his 73-year-old mother, . . . , threatens to kill her. He has previously beaten her husband very severely, so she’s in fear for her life based not only on what she saw the defendant do right there with her daughter but what he did to her husband, he then beats her unconscious.” The prosecutor noted defendant had previously beaten Father, who was elderly. Later during closing argument, the prosecutor stated that Mother “testified the defendant had previously beaten her elderly husband. She was in fear for her life at that time. And she was still in fear of the defendant to this day.” At the end of closing argument, the prosecutor stated regarding element 6 of the jury instruction for the criminal threat offense, “No. 6, we have to prove that [Mother’s] fear was reasonable under the circumstances. Of course aside from what she [had] just seen, she was aware that the defendant had severely beaten her husband, so, yes, her fear was reasonable.”

Defendant contends defense counsel committed IAC during closing argument by failing to object to this argument, which defendant argues constituted prosecutorial misconduct. Defendant also argues defense counsel failed to object to the prosecutor not informing the jury that the prior assault evidence was introduced for a limited purpose and could not be considered as propensity evidence. But defense counsel’s failure to object in this regard did not constitute misconduct. The prior assault evidence was admissible, as discussed above, and the prosecutor’s discussion of the prior assault evidence was appropriately limited to the issue of Mother’s fear when defendant threatened to kill her. Defense counsel’s comments regarding the prior assault evidence were therefore proper and within the broad range of permissible argument.

In addition, the prosecutor had no duty to tell the jury that consideration of the prior assault evidence was limited to the issue of Mother’s fear. It follows that defense counsel was not ineffective in not objecting to the prosecutor’s closing argument or to the prosecutor not telling the jury to limit consideration of the prior assault evidence to the issue of reasonable fear. We note, “[a] mere failure to object to argument seldom establishes counsel’s incompetence.” (People v. Thomas, supra, 2 Cal.4th at p. 531.) This case is no exception. Defendant has not established any IAC. We further reject defendant’s IAC, cumulative error argument, because defendant has not established any IAC.

IV

OBJECTION TO MULTIPLE PUNISHMENT UNDER SECTION 654

Defendant contends that as to sentencing on counts 1 and 2, the trial court violated section 654 by imposing multiple punishment for a single criminal act or course of conduct, with a single objective. We find no error.

A. Law Applicable to Sentencing Under Section 654

Section 654 provides in relevant part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” Section 654 precludes multiple punishments for a single “discrete physical act,” and when a defendant engages in a “course of conduct encompassing several acts pursued with a single objective.” (People v. Corpening (2016) 2 Cal.5th 307, 311; People v. Mitchell (2016) 4 Cal.App.5th 349, 352; People v. Mesa (2012) 54 Cal.4th 191, 199 [defendant cannot be punished twice for single act even if defendant harbored multiple criminal objectives.].) If each of the offenses was incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. (People v. Jackson (2016) 1 Cal.5th 269, 354.)

A course of conduct divisible in time, even if directed to one objective, may also give rise to multiple punishments. (People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11; People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1289.) “‘This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.’” (Kurtenbach, at p. 1289; see People v. Clair (2011) 197 Cal.App.4th 949, 960.)

“Intent and objective are factual questions for the trial court, which must find evidence to support the existence of a separate intent and objective for each sentenced offense.” (People v. Jackson, supra, 1 Cal.5th at p. 354; People v. Capistrano (2014) 59 Cal.4th 830, 886 [to permit multiple punishments, there must be evidence to support the finding the defendant formed a separate intent and objective for each offense for which he was sentenced.].) We review for substantial evidence the court’s implied or express factual finding of whether there was a single criminal act or a course of conduct with a single criminal objective. (People v. DeVaughn (2014) 227 Cal.App.4th 1092, 1113; People v. Coleman (1989) 48 Cal.3d 112, 162.) We view the evidence in the light most favorable to the People and presume in support of the court’s order the existence of every fact the trier could reasonably deduce from the evidence. (People v. Tarris (2009) 180 Cal.App.4th 612, 627.) Where the relevant facts are undisputed, our review of the court’s section 654 ruling is de novo. (People v. Corpening, supra, 2 Cal.5th at p. 312.)

B. Discussion

During the sentencing hearing, defense counsel argued that sentencing defendant consecutively on count 2 violated section 654, because there was no specific delineation between defendant’s act of elder abuse against Mother (count 1) and the criminal threat (count 2). Defense counsel therefore requested the trial court to stay defendant’s sentence on count 2 under section 654. The trial court denied the request on the grounds the elements of the two offenses differed and the facts of the case supported imposing separate sentences.

Defendant argues that sentencing on his convictions for elder abuse and criminal threat should have been stayed under section 654, because the two crimes were part of the same objective and course of conduct. Defendant asserts that the trial court erroneously applied the elements tests under section 954, which is the wrong legal standard. (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.) Section 954 concerns the charging of “two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts.” (§ 954.) Section 954 prohibits multiple convictions for lesser included offenses. (People v. Reed (2006) 38 Cal.4th 1224, 1227.) It does not apply to sentencing. (Ibid.) The trial court made no reference to section 954 when sentencing defendant, and we do not assume the trial court inappropriately relied on section 954 when sentencing defendant. “‘It is generally presumed that a trial court has followed established law [citation].’” (People v. DeGuzman (1996) 49 Cal.App.4th 1049, 1053.) The trial court merely stated it denied defense counsel’s request not to stay sentencing on count 2 under section 654 because “[t]he elements are different and the facts of the case sufficient enough for me to deny.” This statement simply supports the determination that sentencing the crimes separately was appropriate because the two convictions were based on separate, independent criminal acts, which do not have overlapping elements requiring the same evidence to prove each crime.

There is substantial evidence supporting the trial court’s determination the crimes were separate, independent crimes. When Mother attempted to intervene in defendant attacking Sister, defendant threatened to kill Mother. Then, in furtherance of a separate objective, defendant gratuitously punched Mother in the face, hit her in the back and “threw” her, causing her to fall onto the floor. Under these circumstances, the trial court reasonably found that defendant’s act of committing the criminal threat offense was a separate act, independent and divisible from defendant’s act of punching Mother in the face. The evidence shows that when defendant threatened to kill Mother, he intended to cause her to suffer sustained fear, and then when he assaulted her, his objective was to injure her by punching her in the face and back. His assault of Mother was not merely incidental or necessary to the criminal threat offense. The assault upon Mother constituted a separate, gratuitous act of violence. (People v. Nguyen (1988) 204 Cal.App.3d 181, 193.) Sentencing defendant separately for the elder abuse and criminal threat crimes does not constitute multiple punishment for convictions that arise out of an indivisible, intertwined transaction, having a single intent and objective. (People v. Racy (2007) 148 Cal.App.4th 1327, 1336; People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.) The trial court therefore did not violate section 654 by sentencing defendant separately for elder abuse and making a criminal threat (counts 1 and 2).

V

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

MILLER

Acting P. J.

SLOUGH

J.