Filed 9/27/18 P. v. Lopez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Cheri Pham, Judge. Affirmed.

Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott Taylor and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

An information charged Andrew Herman Lopez with one count of assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4); count 1; all further statutory references are to the Penal Code unless otherwise stated), and one count of felony battery with serious bodily injury (§ 243, subd. (d); count 2).

The information also alleged Lopez inflicted great bodily injury in the commission of count 1 (§§ 1192.7, subd. (c), 667.5, subd. (c)); had been convicted of two prior serious felonies (§ 667, subd. (a)(1)) and four prior “strikes” (§ 667, subd. (b)-(i)); and had served two prior prison terms (§ 667.5, subd. (b)).

A jury convicted Lopez of count 1, assault with force likely to produce great bodily injury, but found not true the great bodily injury enhancement. The jury found Lopez not guilty of count 2, felony battery with serious bodily injury, and instead convicted him of simple assault and battery as lesser included offenses.

At sentencing, the prosecutor dismissed both of the prior serious felony conviction enhancements, and two of the four prior strike conviction enhancements. The court dismissed the misdemeanor assault conviction, found true the remaining strike and prior prison term allegations, and sentenced Lopez to a total term of six-years in prison.

On appeal, Lopez argues the court committed prejudicial evidentiary and instructional error. We disagree and affirm the judgment.

FACTS

In 2014, Ryan M.[1] and his father, Clifford M., lived in Laguna Niguel. Rebekah Bramblett, Lopez’s estranged wife, was their next-door neighbor. Ryan and Bramblett were friends and they enjoyed spending time together.

Late one night, Ryan drove Bramblett to a liquor store and then to a friend’s house. When they returned home, Ryan parked his car in the driveway. Ryan and Bramblett got out of the car, and they walked toward their respective residences.

As Ryan approached his front door, a large man jumped out of the bushes and yelled, “What are you doing with my wife?” Ryan had never seen the man before, and replied, “I don’t know what you’re talking about.” The man repeated, “that’s my wife,” and he attacked Ryan. Ryan did not know how many times he was hit, but he remembered falling to the ground. He was unable to identify his attacker.

Clifford was sleeping when he heard yelling outside his home. He got up to investigate, ran to his front door, and turned on an outside light. Clifford heard a loud bang on the door. When he opened the front door, Clifford saw Lopez less than eight feet away from him and standing over Ryan. Lopez turned away from Ryan, and walked toward Bramblett’s house.

Clifford followed Lopez and asked, “What up?” Lopez opened the gate to Bramblett’s backyard and disappeared behind the fence. Lopez was pacing behind the fence when he told Clifford, “I did it.” Clifford asked, “Why,” and Lopez responded, “She’s my wife.” At that point, Clifford decided to go back home and call the police.

Around 1:00 a.m., Orange County Sheriff’s Deputy Raymond Garcia was dispatched to Bramblett’s address to investigate reports of an argument between a man and a woman. As Garcia drove to Bramblett’s address, he received another call about someone’s son being assaulted by a neighbor.

When Garcia arrived at the scene, he heard a man and woman arguing in Bramblett’s backyard, and he decided to investigate. Lopez, who was five feet, ten inches tall and weighed around 205 pounds, matched the description of the suspect given in connection with the assault report. Garcia contacted Lopez, and he had Lopez sit in the back of his patrol car while he continued to investigate. Lopez had blood on his shirt, socks, and pants, but there were no cuts, marks, or bruises on Lopez’s hands.

Garcia interviewed Ryan at the hospital. Ryan had a large gash on his forehead that required five stitches to close. He also had three chipped teeth that necessitated a cosmetic dental procedure, and he suffered numerous bruises to his body and face. Ryan was treated for his injuries and released the same night. The prosecution submitted several color photographs depicting Ryan’s injuries.

During closing argument, defense counsel conceded Lopez assaulted Ryan. He did not raise an identity defense, or claim that his client acted in self-defense. Instead, defense counsel focused on the relatively minor nature of Ryan’s wounds to argue Lopez had not inflicted great, or serious, bodily injury.

DISCUSSION

1. Evidentiary Error

a. Background

According to a prosecution pretrial motion, Ryan had been convicted of possession of marijuana for sale in 2003, and possession of heroin for sale in 2007. Ryan had also suffered misdemeanor drug-related convictions in 2004, 2011, and 2012, and he had a misdemeanor petty theft conviction in 2010. Plus, Ryan was currently being prosecuted for another drug-related case at the time of trial. While the prosecution sought to exclude evidence of Ryan’s prior felony convictions, defense counsel argued the prior felony convictions were for crimes of moral turpitude, and thus probative of Ryan’s credibility.

At an Evidence Code section 402 hearing, the prosecutor argued Ryan’s prior felony convictions were too remote to be relevant. The 2003 conviction for possession of marijuana for sale was 13 years old, and it had recently been reduced to a misdemeanor pursuant to Proposition 47. The 2007 possession for sale of heroin case was over 10 years old at the time of trial. The prosecutor argued the probative value of the stale prior felony convictions did not outweigh the risk of undue prejudice.

The court acknowledged Ryan’s prior felony convictions involved moral turpitude, but also noted that Ryan had been conviction free between 2012 and 2016. After balancing the relevant factors under Evidence Code section 352, the court concluded, “the probative value of the alleged victim’s credibility is outweighed by the prejudicial effect, as well as the danger of misleading and confusing the jury.” On this basis, the court excluded evidence of Ryan’s prior felony convictions.

b. Argument

Lopez asserts the court abused its discretion and violated his state and federal constitutional rights to due process and to confront adverse witnesses, California Constitution, article I, section 28, subdivision (f)(4), and Evidence Code sections 352 and 788, which provides for the impeachment of a witness with a prior felony conviction, by not admitting evidence of Ryan’s prior drug-related felony convictions. Lopez asserts the court’s ruling allowed the prosecutor to give Ryan “‘a false aura of veracity.’”

True, a defendant must be afforded a meaningful opportunity to present a complete defense under the due process clause of the Fourteenth Amendment. (People v. Albarran (2007) 149 Cal.App.4th 214, 229.) Moreover, a criminal defendant has the right to present all relevant evidence of significant probative value. (People v. Babbitt (1988) 45 Cal.3d 660, 684.)

On the other hand, “The routine and proper application of state evidentiary law does not impinge on a defendant’s due process rights. [Citation.] Additionally, ‘reliance on Evidence Code section 352 to exclude evidence of marginal impeachment value . . . generally does not contravene a defendant’s constitutional rights to confrontation and cross-examination.’ [Citation.]” (People v. Riccardi (2012) 54 Cal.4th 758, 809-810, overruled on other grounds by People v. Rangel (2016) 62 Cal.4th 1192, 1216.) The 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.’ [Citation.]” (Riccardi, at p. 10.)

In this case, Lopez had the opportunity to cross-examine Ryan at trial, and he presented a complete defense. We perceive no deprivation of Lopez’s state or federal constitutional rights on the basis of the court’s ruling to exclude Ryan’s prior felony convictions for impeachment in this case.

Moreover, under Evidence Code section 352, the court has considerable discretion to “exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” Evidence Code section 352 is designed to avoid the type of prejudice derived from “‘evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues,’” not “the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.” (People v. Karis (1988) 46 Cal.3d 612, 638.)

Under the abuse of discretion standard, we find no error. Although Lopez describes Ryan as the “primary witness” against him, he is overstating the importance of Ryan’s testimony. Ryan did not identify Lopez as the assailant. He did not describe the details of the attack, and nothing suggests Ryan was under the influence of a controlled substance, or alcohol, at the time. Ryan’s testimony about Lopez mentioning his wife was verified by Clifford, who also heard Lopez refer to his wife, and Clifford identified Lopez as the attacker.

In addition, the nature and extent of Ryan’s injuries was substantiated by color photographs, and Garcia noted the lack of injury to Lopez. Against the minimal relevance of Ryan’s stale felony priors the court correctly weighed the possibility of jury confusion and undue consumption of time. In short, there was nothing arbitrary, or capricious, in the court’s decision to exclude evidence of Ryan’s prior felony convictions.

However, even were we to conclude otherwise, Lopez has not established the allegedly erroneous exclusion of this impeachment evidence was prejudicial under either the test set out in People v. Watson (1981) 30 Cal.3d 290, 296 (Watson), or Chapman v. California (1967) 386 U.S. 18. (People v. Page (2008) 44 Cal.4th 1, 41-42 [absent violation of federal constitutional rights, evidentiary error is measured under Watson standard of prejudicial error].)

Again, Ryan did not identify Lopez as his attacker, and he could not provide details of the attack. Clifford identified Lopez as the person who assaulted Ryan, and he and Garcia testified to Lopez’s statements and physical condition. Under these circumstances, any error in the court’s exclusion of Ryan’s prior felony convictions was harmless beyond a reasonable doubt.

Lopez also argues Ryan was the only witness testifying to the facts of the assault because no one else saw the events, and only he could provide evidence relating to a claim of self-defense. However, Lopez did not claim self-defense at trial, and Clifford heard a scuffle and saw Lopez walking away from Ryan, who was lying on the ground and bleeding. Thus, even assuming Ryan had been impeached with one, or both, of his prior felony convictions, there is no reasonable possibility of a more favorable result.

2. CALCRIM Nos. 226 and 316

Ryan also raises two claims of instructional error relating to the court’s exclusion of Ryan’s prior felony convictions, and the prosecutor’s grant of immunity against incriminating testimony relating to Ryan’s pending criminal case.

a. Background

During pretrial discussions, the prosecutor told the court Ryan was an uncooperative witness. Ryan had threatened to “begin forgetting facts” of Lopez’s case if he did not receive consideration in his pending case during a discussion with one of the district attorney’s investigators. Ryan was represented by counsel in his pending felony case, and the prosecutor argued “questioning him as to that open case on the stand would raise a whole other can of issues.”

The court and defense counsel agreed the fact Ryan had a pending case and threatened to forget facts if not shown consideration in that case was relevant to Ryan’s motivation and bias. Consequently, the court indicated a willingness to allow questioning about his threatened noncooperation, but the court also wanted to forbid counsel from “go[ing] into any facts about that case or any circumstances about [Ryan’s] case.”

The following morning, before jury selection, the prosecutor suggested offering Ryan use immunity “so that if the subject [of his pending case] does come up . . . he would be protected against any statements that he does make regarding his new case.” With the offer of use immunity, the court said it would sanitize references to Ryan’s open case by referring to it as a “pending criminal matter that’s unrelated to this case.”

Later that day, the prosecutor filed signed documents entitled, “WAIVER OF HEARING (Use Immunity),” “PETITION FOR AN ORDER COMPELLING TESTIMONY OF A WITNESS (1324 Penal Code) (Use Immunity),” and an “ORDER REQUIRING WITNESS TO ANSWER QUESTIONS (1324 Penal Code) (Use Immunity).”

In proceedings outside the presence of the jury, the court asked Ryan whether he had discussed the documents with his attorney, and if he understood the terms and conditions of the prosecutor’s proposed agreement. Ryan indicated he had discussed the documents with his attorney, and he understood them. The court was satisfied Ryan knowingly and voluntarily entered into a use immunity agreement with the prosecution, and signed the order.

The court clarified the parameters of any questioning on the issue by telling Ryan, “no one is going to be allowed to ask you about the facts of your pending case.” The court also told Ryan he had to truthfully answer questions, “regarding the statement that you made to the [district attorney] investigator.”

At the beginning of Ryan’s direct examination, the prosecutor asked Ryan if he was under subpoena to testify, and if he wanted to testify. Ryan responded, “Not exactly.” The prosecutor said, “Okay and back about a week ago, did you have an opportunity to meet with myself and a [district attorney] investigator?” Ryan said, “Yes.” The prosecutor responded, “And during that conversation, did you let us know that you have your own pending legal matter?” Ryan replied, “Yes.” The prosecutor continued, “Okay and during that conversation, did you also tell us in some way, shape, or form that you wanted to some special consideration on your own pending legal matter?” Ryan said, “That’s not exactly - - that may have been how you took it, but that’s not exactly what I meant by it.”

The court sustained defense counsel’s objection that Ryan’s answer was nonresponsive. The prosecutor then engaged Ryan in the following colloquy: “[The prosecutor] During that conversation you did highlight to us you had your own pending legal matter? [¶] [Ryan] Yes. [¶] Q And during that conversation, did I tell you that you were not going to get any special consideration on your own separate pending legal matter? [¶] A Yes. [¶] Q Is that a legal matter that happened or arose in 2016? [¶] A Yes. [¶] Q And do you understand that you’re here today testifying under oath? [¶] A Yes. [¶] Q And that you must tell the truth as you remember it? [¶] A Yes. [¶] Q So, I’m going to ask you about what happened back in 2014.”

At the conclusion of the case, the court and counsel discussed jury instructions, including CALCRIM No. 226 (Witnesses). CALCRIM No. 226 informs the jury of their duty to decide the credibility and believability of the witnesses, and instructs the jurors to use their common sense, experience, and “anything that reasonably tends to prove or disprove the truth or accuracy of [the witness’s] testimony.”

The instruction also lists 14 specific factors the jury may consider when evaluating a witness’s testimony. By agreement of the prosecutor and defense counsel, the court gave CALCRIM No. 226, but omitted five of the 14 listed factors. The excluded factors were: (1) did the witness admit to being untruthful; (2) what is the witness’s character for truthfulness; (3) has the witness been convicted of a felony; (4) has the witness engaged in conduct that reflects on their believability; and, (5) was the witness promised immunity or leniency in exchange for his or her testimony. (CALCRIM No. 226.) The court said these five factors were not applicable, and both parties agreed. Neither party requested CALCRIM No. 316 (Witness Credibility - Other Conduct).

b. Argument

Lopez argues the prosecutor’s grant of immunity from prosecution in Ryan’s pending criminal case was relevant to Ryan’s credibility in his case. Lopez argues the court had a sua sponte duty to instruct the jury to consider the fact Ryan testified under a grant of use immunity when evaluating Ryan’s credibility (CALCRIM No. 226). He also contends the court should have given CALCRIM No. 316, which allows the jury to consider a witness’s prior felony convictions, or “crime or other misconduct,” when evaluating credibility. Again, defense counsel did not request the additional factors listed in CALCRIM No. 226, or that the court give CALCRIM No. 316. Thus, with respect to both purported instructional errors, Lopez also asserts he received the ineffective assistance of counsel.

“We review de novo a claim that the trial court failed to properly instruct the jury on the applicable principles of the law.” (People v. Canizalez (2011) 197 Cal.App.4th 832, 850.) We also review de novo whether the trial court has a duty to give a particular jury instruction sua sponte. (People v. Simon (2016) 1 Cal.5th 98, 133; People v. Guiuan (1998) 18 Cal.4th 558, 569.)

In criminal cases, the trial court has a sua sponte duty to instruct the jury on all general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.) However, “[a] trial court has no sua sponte duty to revise or improve upon an accurate statement of law without a request from counsel [citation], and failure to request clarification of an otherwise correct instruction forfeits the claim of error for purposes of appeal.” (People v. Lee (2011) 51 Cal.4th 620, 638.)

Lopez does not argue the version of CALCRIM NO. 226 given was erroneous, only that it was incomplete. However, the court does not have a sua sponte duty to give clarifying, or pinpoint instructions. (People v. Lee, supra, (2011) 51 Cal.4th at p. 638.) Moreover, the court’s pretrial evidentiary ruling ensured there would be no factual basis to give an instruction on how to consider evidence of Ryan’s prior felony convictions (CALCRIM No. 316). Thus, Lopez’s only avenue for reversal is the argument his counsel provided constitutionally deficient representation.

A defendant seeking reversal for ineffective assistance of counsel must prove both deficient performance and prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687.) To show prejudice, defendant must show a reasonable probability that he would have received a more favorable result had counsel’s performance not been deficient. (Id. at pp. 694-695.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Id. at p. 694.) “The likelihood of a different result must be substantial, not just conceivable.” (Harrington v. Richter (2011) 562 U.S. 86, 112.)

In addition, “a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding.” (People v. Mai (2013) 57 Cal.4th 986, 1009.) Where, as here, defense counsel’s tactical decisions are at issue, the defendant must show “there could be no conceivable reason for counsel’s acts or omissions.” (People v. Weaver (2001) 26 Cal.4th 876, 926.)

Lopez has not demonstrated there could be no conceivable reason for defense counsel’s actions. Defense counsel decided to admit Lopez was Ryan’s assailant to focus on the relatively minor nature of Ryan’s injuries, and the jury agreed with defense counsel’s assessment. As for the prior felony conviction factor in CALCRIM No. 226, there was no factual basis to request the additional factors, because the court excluded evidence of Ryan’s prior felony convictions. Finally, neither side mentioned the words “use immunity” during trial. Therefore, any reference to use immunity would have been confusing to the jury.

Finally, under the circumstances presented here, Lopez has failed to establish he received prejudicial ineffective assistance of counsel as a result of defense counsel’s decision to not request modification of CALCRIM No. 226, or to request the court give CALCRIM No. 316. He has not shown a reasonable probability that but for the alleged ineffective assistance a more favorable result would have been obtained.

DISCUSSION

The judgment is affirmed.

THOMPSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

FYBEL, J.