Filed 12/12/17 P. v. Stewart CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

NATHAN DAVID STEWART,

Defendant and Appellant.
C083197

(Super. Ct. No. 15F01663)



A jury found defendant Nathan Stewart guilty of assault by means of force likely to produce great bodily injury with an enhancement for personally inflicting great bodily injury. The trial court imposed a seven-year state prison term, suspended execution of sentence, and placed defendant on five years’ formal probation.
On appeal, defendant contends the trial court erred in failing to inform the jury it could not consider a witness’s improper response to a question, and trial counsel was ineffective for failing to ensure the jury was properly admonished. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On February 28, 2015, Keith Herrera, Bryan Griffe, and Nathan Davenport met at the Republic Bar and Grill, where they had several beers before going to the nearby Petra restaurant to eat. After they ordered their food and sat down, Herrera noticed the couple at the table behind them, defendant and Lisa Sox-Greer, were arguing. Defendant got up and bumped Griffe’s chair as he left the table. When he returned to his table, defendant grabbed Sox-Greer’s purse, left and then returned, grabbed her car keys, and left the restaurant. Sox-Greer yelled, “He has my car keys. Someone stop him.”
Davenport followed defendant outside, where he asked defendant to return the keys. Defendant pushed Davenport twice but Davenport did not fall. When defendant was across the street, he told Davenport to mind his own business; Davenport replied, “hey man. Just give her her stuff back.” Davenport continued to follow defendant.
Herrera followed defendant and Davenport, but lost sight of them for 30 to 60 seconds when they went around a corner. When Herrera caught up, he saw defendant grab Davenport in a bear hug and slam him into a car. Davenport tried to get away from defendant but defendant slammed Davenport into the ground. Defendant continued the assault, slamming Davenport head first into the ground three to five times. Defendant kept slamming Davenport after Davenport became dazed. Davenport’s eyes rolled back and he was unconscious.
Herrera stood across the street and said and did nothing during the attack. Defendant asked Herrera if he wanted to “fuck” with defendant as well. When Sox-Greer yelled at defendant to stop, he backed away.
As the police arrived, Herrera and Sox-Greer dragged Davenport out of the street. Davenport’s head did not strike the ground while they dragged him.
Sacramento police officers arrived at the scene to find Herrera and Sox-Greer standing around Davenport, who was on the ground with a pool of blood near his head. Herrera smelled of alcohol but did not appear to be intoxicated. Defendant had scratches on his knuckles and the top of his hands; he was shaking, sweating profusely, and appeared to be intoxicated.
Davenport sustained a life-threatening head injury and was placed in a medically induced coma because of brain swelling. He had a severe traumatic brain injury and a fractured skull. There was a contusion on the right frontal area of his brain, behind the eye, and another on the temporal area above his right ear. The contusions could have been caused by a single blow or by more than one blow to the head. Davenport’s blood-alcohol level was 0.255 percent.
Davenport woke up in the hospital two weeks after the incident. He remembered Herrera picking him up to go out, and that he ordered food and probably drank a lot that night, but could not recall much else of what happened. He was five feet six inches tall and weighed 120 pounds in March 2015.
The defense’s version of events was taken primarily from the testimony of defendant and Sox-Greer.
Defendant and his fiancée, Sox-Greer, went to several bars with a group of friends to celebrate a friend’s birthday on February 28, 2015. Around 6:30 p.m., they started at the Republic, where defendant had two beers. They did not see Davenport and his friends when they were there. They stayed at the Republic for about two and one-half hours before going to three other bars, where defendant had four more beers. Around midnight, they broke off from their group and went to Petra to eat.
Defendant and Sox-Greer discussed getting a hotel room because neither of them was in a condition to drive. They got into an argument at Petra, causing defendant to get up and walk away. Defendant left his electronic cigarette on the table when he got up; Sox-Greer started to put it in her purse. When he returned, defendant asked for the cigarette and then grabbed Sox-Greer’s purse. Sox-Greer kept the cigarette in her hands and told defendant he would get it if he returned her car keys. She handed defendant the cigarette, he returned her purse, but kept the keys.
At some point, defendant bumped the table, causing a cup of water to spill onto Sox-Greer’s lap. An upset and crying Sox-Greer told defendant, “you can’t leave me here.” Defendant replied that he could and left the restaurant. According to Sox-Greer, at this point she heard chairs being pushed back and a man saying, “oh hell no.” She did not say anything to the other people in the restaurant and never asked for someone to get her keys back from defendant.
As defendant walked away from Petra, Davenport and his friends flagged him down and Davenport asked defendant about getting the keys back. Defendant thought Davenport had three people behind him. He told Davenport that Sox-Greer would get her keys after defendant got his tablet and hot spot from the car.
According to defendant, Davenport approached him aggressively. He shoved Davenport and ran across the street. Sox-Greer caught up at this point and asked for her keys. Defendant replied that he just wanted to get his things and then ran away from her.
Defendant apologized to Davenport for shoving him. As they approached the car, defendant told Davenport they were at his car and he just wanted his tablet and hot spot. He reiterated to Davenport that Sox-Greer would get her keys back.
As defendant reached down to get his tablet from the car, Davenport struck him on the neck, causing defendant’s glasses to fall off. Davenport was between defendant and the driver’s door when he hit him. Defendant grabbed Davenport and ran with him for three or four steps before Davenport went down with defendant on top of him. He tried to get up, but defendant fell down twice on Davenport before he finally got up on the third attempt. He then yelled at Herrera to get away from him.
Defendant denied slamming Davenport into the car or repeatedly slamming him into the ground.
Defendant was six feet two inches tall and weighed 225 pounds on the night of the incident.
A police car camera recorded defendant saying, “Thank you. Fuck you. Piece of shit mother fucker. You deserve what you get.” Defendant was also recorded telling police that he threw Davenport down.
DISCUSSION
I
Response To Question Which Was Subject To Objection
The trial court allowed the jury to submit questions, which the court would review and then ask witnesses.
Before trial, the court instructed the jury with CALCRIM No. 222 as follows:
“During the trial the attorneys may object to questions asked of a witness. I will rule on the objections according to the law. If I sustain an objection, the witness will not be permitted to answer; you must ignore the question.
“If the witness does not answer, do not guess what the answer might have been or why I ruled as I did. If I order testimony stricken from the record, you must disregard it and must not consider that testimony for any purpose.”
During Herrera’s testimony, a juror submitted a question asking him, “How well do you know Mr. Davenport? High school? [¶] Did you ever know him to be violent, combative, or threatening towards yourself or others?” The court replied, “That is not an issue in this trial so don’t speculate what the answer might have been. The question is improper.”
During the testimony of the detective who interviewed Herrera, Detective Sara Dorsey, the following exchange took place between the court and the witness:
“Q.[ ] Was that a point of your interview of Mr. Herrera? Did you specifically probe or ask questions to determine who first put hands on the other person?”
“A. From what Mr. Herrera stated, that Mr. Davenport was just following behind him, asking for the keys; and he never stated at any point that he physically went after him.
“If I can continue.
“Q. As in physically touching him?
“A. Physically touching.
“Q. He did follow him?
“A. He did follow him but physically he did not touch him.
“And also talking to Mr. Davenport, even though he couldn’t remember the incident, he advised I am a small guy. I don’t start fights and that’s not something I would do but I guess --
“[Defendant’s trial counsel]: Objection.
“THE COURT: He is just talking about in general, not that night?
“THE WITNESS: Yes, in general.
“THE COURT: Object[ion] sustained.”
At the next recess, outside the jury’s presence, the court stated it will strike the testimony to which defendant just objected. Trial counsel then asked the trial court to “readmonish the jury because sitting at my desk in my office is a copy of the Restraining Order Application that Mr. Davenport’s ex-girlfriend filed against him, so he is the kind of person who starts fights.” The court replied, “It doesn’t matter. I understand your concern. I order the testimony stricken. All right.” The trial continued, but the court never advised the jury that the testimony was stricken. The court did not admonish the jury regarding Detective Dorsey’s testimony about Davenport’s statement to her. No objection was raised to the court’s failure to admonish the jury.
The court gave the CALCRIM No. 222 instruction to the jury again, as part of the instructions given before deliberation.
Defendant asserts Detective Dorsey’s testimony relating Davenport’s statement that he did not start fights was barred under the hearsay rule and the confrontation clause. He contends the statement prejudiced him, and the trial court erred in failing to admonish the jury not to consider it.
The trial court never ruled on defendant’s request to admonish the jury. It sustained defendant’s objection to Detective Dorsey’s testimony and, when asked to admonish the jury about it, the court stated it understood defense counsel’s concerns and ordered the testimony stricken, but it never stated that it would or would not give the requested admonishment. It was defendant’s burden to seek a ruling on his request for an admonishment. (People v. Braxton (2004) 34 Cal.4th 798, 813; People v. Rhodes (1989) 212 Cal.App.3d 541, 554; 3 Witkin, Cal. Evidence (5th 3d. 2012) Presentation at Trial, § 401 at pp. 558-559.) Defendant’s failure to do so forfeits the contention on appeal.
II
Ineffective Assistance Of Counsel
Defendant then contends trial counsel was ineffective in failing to urge the trial court to inform the jury that the evidence had been stricken.
To establish ineffective assistance of counsel, a defendant must show: (1) counsel’s performance was below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 668, 691-692 [80 L.Ed.2d 674, 695-696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) “ ‘Surmounting Strickland’s high bar is never an easy task.’ ” (Harrington v. Richter (2011) 562 U.S. 86, 105 [178 L.Ed.2d 624, 642].)
The reason Strickland’s bar is so high is because “[a]n ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest ‘intrusive post-trial inquiry’ threaten the integrity of the very adversary process the right to counsel is meant to serve. [Citation.] . . . It is ‘all too tempting’ to ‘second-guess counsel’s assistance after conviction or adverse sentence.’ ” (Harrington v. Richter, supra, 562 U.S. at p. 105 [178 L.Ed.2d at p. 642].)
Where it is easier to dispose of an ineffective assistance of counsel claim on the grounds of prejudice, we need not address whether counsel’s performance was deficient. (In re Fields (1990) 51 Cal.3d 1063, 1079.) To establish prejudice, “[i]t is not enough ‘to show that the errors had some conceivable effect on the outcome of the proceeding.’ ” (Harrington v. Richter, supra, 562 U.S. at p. 104 [178 L.Ed.2d at p. 642].) To establish prejudice, defendant must show “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.” (Strickland v. Washington, supra, 466 U.S. at p. 694 [80 L.Ed.2d at p. 698].) “The likelihood of a different result must be substantial, not just conceivable.” (Harrington, at p. 112 [178 L.Ed.2d at p. 647].)
The trial court properly sustained the objection; Detective Dorsey’s answer that Davenport told him he did not start fights was inadmissible hearsay, improper character evidence (Evid. Code, § 1101, subd. (b)), and was nonresponsive to the question posed to her. The statement was at most minimally harmful to defendant. Davenport’s credibility was not significantly at issue, as he could not recall the encounter with defendant. Part of the inadmissible statement, Davenport saying he was a “small guy,” was already known to the jury, who could see Davenport when he testified. Another fact known to the jury, the relative sizes of defendant and Davenport further diminishes the potential prejudice from the hearsay statement. Defendant was eight inches taller and weighed almost twice as much as Davenport. It is simple common sense to infer that Davenport was unlikely to initiate a fight with a person so much bigger than himself.
Defendant’s contention that “[t]his was a close case” is incorrect. He correctly points out that the eyewitness to the assault, Herrera, lost sight of defendant and Davenport for 30 to 60 seconds before seeing defendant slam Davenport into the car and then the ground. However, the conclusion he draws from this fact, that his testimony of being punched in the neck by Davenport before Davenport went to the ground, fits within this gap in Herrera’s account, thereby rendering the case close, does not follow. While Herrera losing sight of defendant and Davenport is not inconsistent with defendant’s rendition of events, the rest of Herrera’s account, that defendant slammed Davenport into the car and then repeatedly slammed him into the ground, is not. Nor did the jury have to rely solely on Herrera’s testimony to refute defendant’s version of events. Defendant’s testimony as to how Davenport was injured, Davenport fell down with defendant on top of him, then defendant trying to get up but falling on Davenport two times before getting up, is far less consistent with the life threatening injuries sustained by Davenport than Herrera’s version of events. In addition, defendant’s claim of self-defense cannot be reconciled with his recorded statement, “Thank you. Fuck you. Piece of shit mother fucker. You deserve what you get,” as well as his statement to police that he threw Davenport.
Finally, any potential prejudice to defendant is further minimized by the trial court again giving CALCRIM No. 222, which informed the jury to disregard any question for which an objection was sustained. In light of the minimal potential prejudice from the improper testimony, the strong case against defendant, and the mitigating effect of CALCRIM No. 222, we conclude that defendant fails to meet Strickland’s standard of prejudice. Counsel’s failure to ask for a ruling on the request to admonish the jury was not constitutionally ineffective assistance.




DISPOSITION
The judgment is affirmed.



/s/
Robie, Acting P. J.



We concur:



/s/
Butz, J.



/s/
Mauro, J.