P. v. Nicholson

Filed 9/26/06 P. v. Nicholson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

A jury convicted defendant Aaron Darnell Nicholson of evading a peace officer with wanton disregard for the safety of others and possession of a firearm by a felon. It also found true allegations of seven prior convictions for purposes of the Three Strikes law and three prior prison terms for purposes of one-year sentence enhancements. On appeal, defendant contends that he received ineffective assistance of counsel because trial counsel failed to make certain objections. In a separate petition for writ of habeas corpus, which we ordered considered with the appeal, defendant raises the same claims of ineffective assistance of counsel supplemented by a declaration of trial counsel.[1] We affirm the judgment. We also dispose of the habeas corpus petition by separate order filed this day.

background

Defendant reported to his Redwood City parole agent’s office for a psychiatric appointment. After the appointment, defendant encountered six parole agents and engaged them in an argument when they tried to detain him. He escaped. He later telephoned the office, talked to Parole Agent Irma Vargas, refused to surrender, and threatened agent Vargas.

Palo Alto police planned to arrest defendant the next day by having Curtis Moore arrange a meeting with defendant at the Edgewood Plaza Shopping Center. Near the appointed time, uniformed police in marked patrol cars on alert for defendant’s Honda automobile parked near the center. Meanwhile, defendant was driving to the center from Oakland where he had picked up passenger Brandi Davis,[2] a woman whom he had been dating for two months. As he neared the center, defendant saw one of the waiting police cars. He exclaimed, “Damn, the cops are behind us.” He then drove onto southbound Highway 101 via the Embarcadero Road onramp and accelerated. Officer Bertrand Milliken followed in his patrol car. Defendant weaved through traffic and then took the westbound San Antonio Road exit ramp. Officer Milliken activated his lights and siren. He pursued defendant onto San Antonio. Defendant made a u-turn. He traveled eastbound on San Antonio until turning right into opposing traffic onto the cloverleaf exit ramp from southbound 101 to eastbound San Antonio. Officer Milliken caught up and tried to disable defendant’s car. He damaged the car’s taillight but, in the process, went off the road into the ice plant. Defendant reached the end of the exit ramp and drove over the curb onto southbound 101. Officer Steve Herrera, who was in pursuit on southbound 101, saw the maneuver and activated his lights and siren. He then chased defendant through Mountain View, Sunnyvale, Cupertino, and Los Altos. On northbound Foothill Expressway in Los Altos, defendant crossed the barrier and traveled northbound in the southbound lanes for a mile and a half at 75 miles per hour. He turned onto eastbound San Antonio and sped down the road toward 101 through a red light at El Camino Real at 80 miles per hour. He entered northbound 101 and accelerated to 90 miles per hour while weaving through the traffic lanes and road shoulder, passing 20 to 40 vehicles. Between the Embarcadero and University Avenue exits in East Palo Alto, defendant crashed the car into a fence on the side of the road, exited the car, climbed over the fence, and escaped.[3] Police arrived at the scene and asked Davis to identify the driver. Davis said that defendant was the driver. Police searched the car and discovered in the trunk a backpack containing a gun and a Dallas Cowboys jacket. The officers took Davis to the police station for further questioning and showed her a photographic lineup. Davis identified a picture of defendant as the driver and said that she had seen defendant wearing a Dallas Cowboys jacket.

The only evidence for the defense was defendant’s testimony, which asserted an alibi defense. Defendant related the following.[4]

Defendant lived in three different places: Pittsburgh, Oakland, and Richmond. For about one year since being released from prison on parole, defendant operated a building maintenance company, landscaping company, senior care company, and a senior-citizen escort company, all without proper paperwork. And he was “just getting ready to license some physical therapists to come over and do the physical therapy.” Others performed the work for the businesses, and defendant collected the profits. Tisha Buckner invited Davis to a Memorial Day barbeque at defendant’s grandmother’s house in East Palo Alto. Defendant and Davis met and began a romantic relationship. Within a month, Davis told defendant that she was pregnant. This caused defendant to secure medical coverage, find an apartment, and give Davis a vehicle. Defendant decided to break up with Davis after he overheard her say that she was not pregnant. On the day of the incident in question, defendant bought his car without paying for it from a place in Oakland where you can buy a car and change the paperwork later. He never looked in the trunk. Later, Davis paged defendant, defendant called Davis, and the two agreed to go out together that evening in Livermore. Defendant, however, had an appointment for that evening with a high-priced loan shark in Walnut Creek or Orinda for the purpose of borrowing money. He sought to borrow money because, though he had a little money in his pocket, he wanted a little bit more. The loan shark would not permit Davis to be present. Also, Curtis Moore had called defendant asking to meet that evening at the Edgewood Plaza Shopping Center in Palo Alto. At some point, defendant called up a man named “T,” a person who normally hung out near Davis’s mother’s apartment in Oakland. In exchange for a couple of hundred dollars that defendant had in his pocket, T agreed to take the car defendant had just bought and drive Davis to Palo Alto, pick up Moore, and drive to and meet defendant at the Dublin BART (Bay Area Rapid Transit) station. Defendant then drove in his car to the mother’s apartment where he picked up Davis. He drove and met T. T drove off in the car with Davis. Defendant took BART to the Orinda or Rockridge station. The loan shark picked him up and took him to her house where defendant obtained a loan. In the home, defendant received two pages and one cell phone call. He returned the calls and talked to various people he knew who thought that he was in East Palo Alto. He explained to them that he was in Walnut Creek or Orinda. Some of defendant’s callers said that the neighborhood was surrounded by police who were looking for him. Defendant became worried about Davis, had a premonition that she was in jail, called a couple of bail bondsmen, and took BART to Oakland. He arrived at the mother’s apartment where the mother, Earl Downs, and a cousin, Pat, were smoking drugs. He told them that he did not take Davis with him. He gave Downs $40 for gas and food and said that someone should go bail out Davis from jail. The mother and Downs left while defendant remained with Pat. Later that evening, the mother and Downs returned with Davis. Davis expressed anger toward defendant and said that he, not T, should have driven her.

After in limine proceedings concerning the prosecutor’s proffered impeachment to which defendant made no objection,[5] defendant’s testimony was impeached by eight felony convictions, which defendant admitted on direct or cross-examination. They consisted of the following: a 1989 incident resulting in two attempted murder convictions, two assault convictions, and a conviction for shooting into an occupied motor vehicle; a 1985 conviction for involuntary manslaughter; and the 1998 parole office incident resulting in an escape conviction and a criminal threat conviction.^[6]

After defendant completed his testimony, the prosecutor successfully moved without objection to unbifurcate the sentence-enhancement trial on defendant’s seven prior convictions given that defendant had already testified about the majority of the convictions. He then proved the priors, including the 1978 child molestation conviction. (Ante, fn. 5.) To prove the child molestation conviction, he introduced into evidence a packet of court documents that included a probation officer’s report (exhibit 5); to prove the involuntary manslaughter conviction, he introduced into evidence a packet of court documents that included a probation report (exhibit 6); and to prove the two attempted murder convictions, two assault convictions, and shooting conviction, he introduced into evidence a packet of court documents that included a probation report (exhibit 7).

discussion

Defendant contends that his trial counsel was constitutionally ineffective in four ways: first, counsel failed to object to the use of eight priors for impeachment on the ground that the use of eight was excessive; second, counsel failed to object to the use of the involuntary manslaughter conviction on the ground that involuntary manslaughter is not a crime of moral turpitude; third, counsel failed to object to unbifurcating the trial on the child molestation conviction; and fourth, counsel failed to object to certain parts of the probation reports on the grounds of hearsay (Evid. Code, § 1200), more-prejudicial-than-probative (id., § 352), or inadmissible character evidence (id., § 1101).

“Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) That right “entitles the defendant not to some bare assistance but rather to effective assistance.” (Ibid.)

“To establish constitutionally inadequate representation, a defendant must demonstrate that (1) counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel’s representation subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. (People v. Mitcham (1992) 1 Cal.4th 1027, 1058; see Strickland v. Washington (1984) 466 U.S. 668, 687-696.) ‘When a defendant on appeal makes a claim that his counsel was ineffective, the appellate court must consider whether the record contains any explanation for the challenged aspects of representation provided by counsel. “If the record sheds no light on why counsel acted or failed to act in the manner challenged, ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,’ [citation], the contention must be rejected.” ‘ [Citations.]” (People v. Samayoa (1997) 15 Cal.4th 795, 845-846.)

Defendant bears a burden that is difficult to carry on direct appeal. (People v. Lucas (1995) 12 Cal.4th 415, 436.) Our review is highly deferential; we must make every effort to avoid the distorting effects of hindsight and to evaluate the challenged conduct from counsel’s perspective at the time. (In re Jones (1996) 13 Cal.4th 552, 561; Strickland v. Washington, supra, 466 U.S. at p. 689.) A court must indulge a strong presumption that counsel’s acts were within the wide range of reasonable professional assistance. (Strickland v. Washington, supra, 466 U.S. at p. 689; People v. Hart (1999) 20 Cal.4th 546.) The burden is to establish the claim not as a matter of speculation but as a matter of demonstrable reality. (People v. Garrison (1966) 246 Cal.App.2d 343, 356.) As to the failure to object in particular, “[a]n attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel.” (People v. Kelly (1992) 1 Cal.4th 495, 540.)

An appellate 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. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . , that course should be followed.” (Strickland v. Washington, supra, 466 U.S. at p. 697.) Therefore, if the defendant does not show that he or she was prejudiced by the purported deficient performance of counsel, the claim can be rejected without deciding whether counsel’s performance was actually deficient under the Strickland standard. As to the prejudice prong, “[t]he United States Supreme Court [has] explained that this second prong of the Strickland test is not solely one of outcome determination. Instead, the question is ‘whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.’ [Citation.]” (In re Harris (1993) 5 Cal.4th 813, 833.) A defendant must prove prejudice that is a “ ‘demonstrable reality,’ not simply speculation.” (People v. Williams (1988) 44 Cal.3d 883, 937.)

Defendant argues that there was no reason not to make an excessiveness objection to the use of the eight felonies for impeachment. He urges that the use of eight constituted prosecutorial overkill. He points out that none of the eight involved theft, fraud, or deceit, felonies which bear most directly on honesty. He adds that five of the eight involved the single 1989 incident and the punishments for the two assaults and one shooting were stayed, effectively making the incident worth two instead of five impeachment felonies. He concludes that, had counsel objected, the trial court would have been obligated to exclude, at the very least, the three stayed felonies. There is no merit to this contention.

Defendant cites no authority for the proposition that a trial court must exclude impeachment felonies as excessive simply because there are eight potential felonies to use or that punishment was stayed for some of the eight. To the contrary, the authorities indicate that there is “no limitation on the number of prior convictions with which the defendant’s credibility can be impeached” and the issue boils down to a discretionary decision. (People v. Mendoza (2000) 78 Cal.App.4th 918, 927 [counsel not ineffective for failing to move to exclude most if not all of 10 priors].) Since defendant cannot demonstrate that the trial court would have been compelled to exclude three of the eight priors on the ground of excessiveness, defendant cannot demonstrate that trial counsel’s failure to object on that ground was deficient performance.

Defendant next argues that there was no reason not to object to the use of his involuntary manslaughter conviction for impeachment. He cites People v. Solis (1985) 172 Cal.App.3d 877, 882-883, for the proposition that involuntary manslaughter is inadmissible for impeachment because it is not a crime of moral turpitude.

Defendant, however, makes no argument that he suffered any prejudice from this supposed dereliction. Nor could he. Seven priors were already properly used for impeachment. Two of those were attempted murders. We cannot imagine how the addition of one involuntary manslaughter conviction to this group rendered the result of the trial unreliable or the proceeding fundamentally unfair.

Defendant further argues that there was no reason not to object to unbifurcating the sentence enhancement trial as to the child molesting conviction. He points out that this conviction did not come out in the trial via impeachment. He suggests, without developing the point, that the child molestation evidence prejudiced the jury against the rest of his case.

Again, however, defendant does not explain how the jury’s knowledge of this conviction tipped the scales against him to render the result of the trial unreliable or the proceeding fundamentally unfair.[7] From defendant’s own admissions, the jury learned that defendant had been convicted of two attempted murders, two assaults, a shooting, an escape, and a threat. Without explanation from defendant, we cannot imagine how adding the child molestation conviction (and involuntary manslaughter conviction (ante, fn. 7)) to this mix caused prejudice.

Defendant finally argues that there was no reason not to object to certain parts of the probation reports being admitted.

“Probation reports contain a wide variety of information, including descriptions of the crime, the defendant, the defendant’s past record, a victim’s statement, and the probation officer’s recommendation regarding probation eligibility and possible sentence. [Citations.] Some parts of a probation report, such as the summary of the crime, are obviously not a contemporaneous recording of an event.” (People v. Monreal (1997) 52 Cal.App.4th 670, 677, fn. omitted.) Indeed, unless the probation officer was a percipient witness, all of the officer’s narration that certain events occurred is inadmissible hearsay unless an applicable exception applies. (People v. Reed (1996) 13 Cal.4th 217, 230.) By the same reasoning, a probation officer’s report-stated opinion is inadmissible hearsay.

As to the child molestation probation report, defendant points out that the report contained a narration of the underlying criminal conduct. This evidence showed that defendant threatened an 11-year-old victim with a hammer and bottle, penetrated her for 15 minutes, threatened her with a knife to dissuade her from telling anyone, later chased her across a schoolyard with a wrench, and admitted hitting and throwing her against a wall and trying to break her legs. Defendant adds that the report contains irrelevant and prejudicial probation officer opinions such as defendant has a long history of anti-social behavior with violent overtones, has no impulse control, seems to pose a threat to the welfare of others, and has aggressive tendencies that are taking on dangerous proportions.

As to the involuntary manslaughter probation report, defendant points out that the report contained a narration of underlying conduct suggesting that he murdered the victim.[8] He adds that the report contained a probation officer’s opinion that he remains a serious threat to the physical well-being of those unfortunate to cross his path.

As to the attempted murders, assaults, and shooting probation report, defendant points out that the report contained a narration of bad conduct other than the impeachment or enhancement priors such as a 1973 school burglary and malicious mischief, a 1974 high-speed chase from police, a 1974 apartment break-in where he set fire to a pile of papers, a 1974 police threat, a 1975 systematic stealing from a nursery, a 1975 teacher insult and abuse, a 1977 possession of a military style billy club, a 1977 assault and battery conviction, a 1977 firebombing of a school and store, a 1981 abscond from parole supervision while possessing a gun, a 1982 parole violation for selling drugs, and a 1985 escape conviction. Defendant also emphasizes the following opinions given by the probation officer: (1) “That this twenty-nine-year-old asocial man would be found guilty of these serious charges comes as no surprise. That the offense involved a drug deal gone bad is not a shock. That he was on parole at the time is not hard to believe. That he used a weapon is consistent with his background. What is incomprehensible, is that he continues unabated to wreak havoc in the community showing no signs of tempering his behavior”; (2) “The subject has spent the majority of his life incarcerated, or in some sort of rehabilitative/custodial setting. On those infrequent occasions he has been released in the community, his presence has always been felt, unfortunately to the detriment of those who have come in contact with him. The period of incarceration he now faces, although not deterring or rehabilitating him, will at least provide the community a respite from the onslaught of his offenses.”

The People do not contest that the excerpts defendant complains about were inadmissible. They instead urge that trial counsel might not have objected to admission of the probation reports because the reports also contained favorable evidence about defendant that counsel might have wished the jury to learn. But defendant was not required to refrain from objecting to unfavorable excerpts in order to have favorable excerpts admitted. We see no satisfactory explanation for trial counsel’s failure to object.

As to the probation report excerpts, defendant does develop a prejudice argument that we focus upon. Defendant ties in the failure to object and the jury’s knowledge of the probation reports’ contents with his perspective of the case. In defendant’s view, the People’s case “was not particularly strong” because it was “a swearing contest” given that no one except Davis could identify him and no physical evidence linked him present in the car. Defendant explains: “The case boiled down to a simple credibility contest between [defendant] and [Davis]. But [defendant’s] defense could not survive the improper admission of his prior crimes and probation reports. The jurors learned that [defendant] was a one-man crime-wave, a child molester, a violent man who by his own admission killed a ‘broad’ and tried to hide the body, an arsonist, a burglar, and a drug dealer. They learned that he previously led the police on a high-speed chase, running stop signs just as he allegedly did in the present case. And they learned the opinion of those who evaluated his prospects--that the public was safe only if he was behind bars. One is hard pressed to imagine circumstances more prejudicial than those that [defendant] faced here. Given the sheer magnitude of inflammatory information, his defense was prejudiced. There is simply no way a jury could impartially adjudicate the facts of this case knowing what this jury knew about [defendant].”

We agree with defendant that the kind and amount of arguably inadmissible evidence in the probation reports cast defendant in a light that is much more unfavorable than we ordinarily see in similar cases. But we cannot agree that this case was close.

First, Davis was defendant’s girlfriend rather than some stranger who might mistake the identity of someone who was driving her in a car. At the scene, she identified defendant to the police as the driver without prompting. At the police station, she identified defendant’s photograph without prompting. Her credibility was unquestioned at trial. Defendant’s suggestion that Davis had a motive to lie because she was angry about their soured romance has no support in the record. There is no evidence that allows the remotest inference that Davis knew defendant intended to break up with her. Moreover, when the prosecutor attempted to introduce evidence to negate an anticipated suggestion from defendant that Davis was framing him, defendant objected on the ground of relevancy, adding that he hadn’t “developed anything” on that issue. And, in sustaining the objection, the trial court confirmed: “There’s no issue right now. Her credibility has not even been attacked.”

Second, defendant’s alibi testimony was preposterous. According to defendant, he was the proprietor of five businesses who bought a car for nothing and drove it without title or registration before giving $200 to a person whose name he did not know to drive in the car his soon-to-be exgirlfriend so as to allow him to take BART and meet an unnamed loan shark to borrow money. Setting aside the patent incredibility, defendant corroborated not one bit of this story despite there being five potential alibi witnesses: T, the loan shark, the mother, Downs, and Pat. Though defendant sometimes asserts that he was not asked to explain certain inconsistencies in his story, defendant misses the point. The patent incredibility of his story cries out for an explanation. Absent an explanation, the story remains patently incredible. Moreover, as we have pointed out, defendant was properly exposed on the witness stand as a two-time attempted murderer, two-time assaulter, an occupied motor vehicle shooter, a parole agent escaper, and a parole agent threatener. Any possible jury prejudice against defendant stemming from the information in the probation reports was from confirmation of, rather than original exposure to, defendant’s unsavory character.

In short, no jury could disbelieve unimpeached Davis and instead believe defendant’s incredible alibi that came via defendant’s thoroughly impeached testimony. Defendant has simply failed to demonstrate that the jury’s exposure to the information in the probation reports rendered the result of the trial unreliable or the proceeding fundamentally unfair.

As a final point, defendant argues that there is no evidence other than hearsay in the murders-assaults-shooting probation report to support that the assaults and shooting convictions were accompanied by findings of personal use of a firearm, findings that are necessary to qualify those convictions as strikes. Defendant faults trial counsel for failing to object to the hearsay. Defendant’s analysis is erroneous.

In determining whether a prior conviction is true and qualifies as a strike, the trier of fact is not limited to matters necessarily adjudicated, but is entitled to examine the “entire record of the conviction.” (People v. Guerrero (1988) 44 Cal.3d 343, 355 [trial court properly considered accusatory pleadings and plea documents]; see, e.g., People v. Harrell (1989) 207 Cal.App.3d 1439, 1443-1444 [charging documents and minute order].)

On appeal, “[w]e examine the documentary exhibits received in evidence at the trial on the prior convictions in the light most favorable to the judgment below to determine whether they disclose substantial evidence--that is, evidence which is reasonable, credible and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Garrett (2001) 92 Cal.App.4th 1417, 1433.)

Here, the documents introduced by the People included an information showing that defendant had been charged with the following: (1) attempted murder on July 4, 1989, of Jesse Grant, with an allegation of personal use of a firearm; (2) attempted murder on July 4, 1989, of Gary Gorden, with an allegation of personal use of a firearm; (3) assault with a firearm on July 4, 1989, of Jesse Grant, with an allegation of personal use of a firearm; (4) assault with a firearm on July 4, 1989, of Gary Gorden, with an allegation of personal use of a firearm; and (5) discharge of a firearm at an inhabited and occupied dwelling house, etc., on July 4, 1989. The documents also included an abstract of judgment showing that punishments for the assaults and shooting were stayed. These facts allow the inference that defendant was charged with perpetrating one shooting incident against two victims. As defendant concedes, the abstract also shows that the attempted murder convictions were accompanied by findings of personal use of a firearm. If there was one incident, it follows that the convictions for the assaults and shooting were also accompanied by findings or facts that defendant personally used a firearm. Since a reasonable jury could infer from the information and abstract that defendant personally used a firearm in all five offenses, trial counsel cannot be faulted for failing to object to the probation-report hearsay or, alternatively, trial counsel’s failure to object to the hearsay did not render the result of the trial unreliable or the proceeding fundamentally unfair.

disposition

The judgment is affirmed.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

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[1] The declaration essentially conveys that trial counsel does not know or remember why she failed to make the objections.

[2] At trial, Davis used the name, Brandi Dale, because she had married since the time of the incident in question.

[3] It is unclear when or how the police apprehended defendant.

[4] The evidence about the parole-office incident was elicited from defendant on cross-examination.

[5] Defendant made one objection to the proffered impeachment. He objected to use of a 1978 conviction for child molestation. The trial court sustained this objection.

[6] The incident in this case took place the day after the 1998 parole office incident but the trial in this case took place in 2005. The reason for the hiatus is not apparent from the record.

[7] For purposes of this point, we accept that, had trial counsel successfully objected to admission of the involuntary manslaughter conviction for impeachment, the jury would not have learned of it during the trial and trial counsel might have treated this conviction in the same category as the child molestation conviction and objected to its unbifurcation as well as unbifurcation of the child molestation conviction.

[8] The conviction was by plea. On direct examination, defendant testified: “In 1985 I was charged with the murder. I pleaded to involuntary manslaughter for a deal.”