Filed 5/22/18 P. v. Davis 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

ROBERT LEE DAVIS,

Defendant and Appellant.


C084809

(Super. Ct. No. 16FE04487)





Appointed counsel for defendant Robert Lee Davis asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.
I
A
During the relevant time period, defendant had been in a dating relationship with the victim for about seven or eight years. The relationship involved domestic violence. In late February 2016, the victim and defendant were homeless and were camping in a parking garage with a group of other people.
The victim testified that one day she and defendant argued and the victim told defendant she did not want to be with him anymore. She turned to walk away and felt a poke in her leg. She noticed a hole in her pants and blood on her leg. The victim did not hear defendant say anything or see a weapon before she was stabbed. She denied threatening, kicking or hitting defendant, or displaying a weapon at the time.
Defendant testified the victim had been raising her voice, hit defendant twice in the head with a closed fist, and started kicking him. Defendant tried to block her kicks and accidentally cut the victim with a tool he had been using to clean his nails. He apologized.
Sacramento Police officers responded to a call that a woman had been stabbed. When they arrived, they saw the victim with a bloody cloth wrapped around her calf. She told officers she and defendant had been arguing. It appeared to Officer Wesley Aslin that the victim was under the influence of alcohol. The victim was taken to the hospital and received stitches. She suffered nerve damage from the stabbing.
B
There was evidence of prior acts of domestic violence. On May 15, 2013, San Francisco Police Officer Derick Dragon responded to a 911 call and found defendant behind a fence in an alley. The victim was inside with what appeared to be a stab or puncture wound that was bleeding. Defendant had a one and one-half inch laceration on his torso, red and swollen eyes, and a swollen forehead. The victim told officers defendant had stabbed her. Officers arrested the victim, but not defendant. Ultimately, the case against the victim was dismissed. Defendant testified that the victim had cut him with a knife, then fell and injured herself.
On July 24, 2013, Officer Dragon again responded to the same address and found the victim with a cut on her forehead and a red, swollen throat. Defendant had deep gashes in his head and a bleeding gash in his armpit. The victim said defendant threw a shot glass at her, strangled her, and tried to punch her; she used part of the broken glass to defend herself. She later admitted she had stabbed defendant with a knife.
On August 31, 2014, defendant and the victim got into an argument and defendant dumped everything out of the victim’s purse. When the victim picked up the phone to call the police, defendant ripped the phone out of the wall. Defendant received a misdemeanor conviction.
On November 3, 2014, defendant and the victim got into an argument at a bar and defendant was kicked out of the bar. The victim went to a friend’s apartment. Defendant arrived and hit the victim in the face. She had some bruising and blood in her ear. A case against defendant was dismissed.
On December 20, 2014, defendant got out of jail and went to the apartment where the victim was staying. Defendant hit the victim with a plastic chair. He received a misdemeanor conviction.
On August 7, 2015, Sacramento Police Officers Patrick Klutz and Kirby Giusti responded to a call for assistance. Defendant had swelling above his right eye and an approximately two-inch long bleeding cut on his left hand. The victim had no injuries. At the time, defendant and the victim were homeless. Defendant said that during an argument, the victim chased him and lunged at him, cutting his hand. The victim said she had no idea how defendant was injured, but she pleaded to a misdemeanor domestic violence charge. The trial court placed her on probation and she took anger management classes.
C
In this case, an amended information charged defendant with inflicting corporal injury resulting in a traumatic condition on a person with whom defendant had a dating relationship (Pen. Code, § 273.5, subd. (a) -- count one) and assault with a deadly weapon, a knife or sharp object (§ 245, subd. (a)(1) -- count two). As to both counts, the information alleged defendant personally inflicted great bodily injury (§ 12022.7, subd. (e)), and as to count one, the information alleged defendant personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)).
During the afternoon on the third day of jury deliberations, the trial court replaced Juror No. 6 with an alternate juror because Juror No. 6 had a prior commitment. When another juror informed the trial court that the juror would have a conflict the following Tuesday, the trial court replied: “All right. Then I suggest we hope we get a verdict before then. Okay. Because at this point we can’t lose any more jurors, and you’ve [sic] at it a while. I’m confident something will happen in the next day or so.” The trial court instructed the jurors that the alternate juror must participate fully in deliberation that leads to any verdict, and that the jurors must set aside and disregard all past deliberations and begin deliberations all over again. At that point a juror told the trial court they had already decided count one. The trial court responded: “I would discuss it with [alternate Juror No. 2] to see if all 12 are in agreement based on your discussions. All right. Go forth.” There was no objection to the trial court’s comments. The next day, the jury reached a verdict, finding defendant guilty of all charges and finding the allegations true.
The trial court sentenced defendant to six years in prison, consisting of the following: the low term of two years for infliction of corporal injury, a consecutive three years for the great bodily injury enhancement, and a consecutive one year for the weapons enhancement. The trial court imposed but stayed a term of two years for assault, with a low term of three years for the great bodily injury enhancement attached to that count. The trial court awarded defendant 303 days of presentence credit and ordered him to pay a $3,200 restitution fine (§ 1202.4), a $3200 parole revocation fine (§ 1202.45), a $60 criminal conviction fee (Gov. Code, § 70373), and an $80 court security fee (§ 1465.8.).
II
Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing the opening brief. Defendant filed a supplemental brief, asserting various arguments. We address each argument in turn.
A
Defendant claims the trial court improperly rushed the jury through deliberations after placing an alternate on the jury.
When an alternate juror has been seated after deliberations have begun, the new jury must be instructed “to set aside and disregard all past deliberations and begin deliberating anew.” (People v. Collins (1976) 17 Cal.3d, 687, 694, superseded by statute in People v. Boyette (2002) 29 Cal.4th 381, 462, fn. 19.) Here, the trial judge properly instructed the jury in this regard. Defendant argues the trial court told the jury to hurry up and that it rushed the jury, but the record shows the trial court did not tell the jury to disregard its instructions or its duty, and there is no evidence in the record that the jury failed to fairly, carefully and properly perform its duty.
B
Defendant next claims the trial court abused its discretion in excluding evidence of prior crimes the victim committed against him in 2010.
Both defendant and the prosecution made motions in limine to admit numerous prior acts of domestic violence perpetrated by both defendant and the victim. For example, defendant’s counsel sought to admit, and the People sought to exclude, two 2010 incidents in which the victim was arrested for stabbing assaults. Both of the 2010 cases were dismissed for insufficient evidence.
The trial court excluded prior acts by either defendant or the victim occurring before 2010, ruling the 2010 arrests were too old and stale. But it admitted more recent acts of both defendant and the victim, including two stabbings of defendant by the victim in 2013 and one in 2015. The trial court explained: “There is a history of domestic violence between [the victim] and [defendant], and then on each side either one being an aggressor on any given day depending on the situation. It appears that the defense may -- the theory of the case is self-defense. Therefore, the history of domestic violence between both parties does become relevant.”
The record demonstrates the trial court understood and fulfilled its responsibilities under Evidence Code sections 1109 and 352. (People v. Williams (1997) 16 Cal.4th 153, 213.) We find no abuse of discretion in excluding the 2010 incidents of domestic violence.
C
In addition, defendant claims his trial counsel was ineffective because he did not use defendant’s mental health records and did not effectively cross-examine the victim.
“[A] defendant claiming ineffective assistance of counsel . . . must show both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome.” (People v. Ochoa (1998) 19 Cal.4th 353, 445.) Decisions regarding what evidence to present and how rigorously a witness should be cross-examined are matters normally left to counsel’s discretion and rarely demonstrate inadequacy of counsel. (People v. Cox (1991) 53 Cal.3d 618, 662, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) “The record before us does not fully reveal why counsel elected to proceed in the manner in which defendant now complains, and defendant’s claim must fail for that reason. [Citation.]” (People v. Carter (2005) 36 Cal.4th 1114, 1190.)
D
Finally, defendant notes there were no African Americans on the jury and only one African American in the jury venire. But his argument relies on facts not contained in the record on appeal. “An appellate court’s review is limited to consideration of the matters contained in the appellate record.” (People v. Neilson (2007) 154 Cal.App.4th 1529, 1534.)
E
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.



/S/
MAURO, J.



We concur:



/S/
BLEASE, Acting P. J.



/S/
BUTZ, J.