P. v. Broadus

Filed 10/12/06 P. v. Broadus CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kings County. Peter M. Schultz, Judge.

Tara K. Allen, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Julie A. Hokans and Catherine Chatman, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

In a second trial held after the first ended in a mistrial, a jury convicted Terrance Lovell Broadus of willfully failing to appear in court on August 20, 2004, while charged with a felony and released from custody on bail (Pen. Code, § 1320.5) and driving in a willful or wanton disregard for safety of persons or property while fleeing from a pursuing police officer (felony evading) on November 4, 2004 (Veh. Code, § 2800.2).^[1] Before the second trial, Broadus pled guilty to a misdemeanor charge of driving a motor vehicle on November 4, 2004 while his driver’s license was suspended or revoked (Veh. Code, § 14601.2, subd. (a).) During the second trial, Broadus admitted he suffered a prior conviction for a serious or violent felony within the meaning of Penal Code sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d). At sentencing, the trial court denied Broadus’s motion to strike his prior conviction and sentenced him to a total prison term of seven years, four months.

On appeal, Broadus contends his conviction for felony evading must be reversed because Vehicle Code section 2800.2 contains an unconstitutional mandatory presumption and the trial court’s failure to give a unanimity instruction violated federal law. Broadus also contends the trial court abused its discretion when it allowed the prosecutor to impeach him with his prior conviction for voluntary manslaughter and the trial court failed to conduct an adequate inquiry into juror misconduct. As we shall explain, we disagree with Broadus’s contentions and will affirm the judgment.

FACTS

Failure to Appear

At about 6:00 p.m. on July 18, 2004, Kings County Deputy Sheriff David Dodd arrested Broadus for assault with a deadly weapon and booked him into Kings County jail. Broadus contacted bail bondsman Eddie Brieno, who went to the jail and posted bond for him. Brieno met with Broadus in the lobby and advised him to appear in court on August 20, 2004, at 8:15 a.m. for arraignment, and provided Broadus with a receipt that listed the court date.

At about 8:45 p.m. that night, Broadus’s wife, Tanisha Broadus, met with Deputy Dodd to report spousal abuse. Deputy Dodd saw she had what appeared to be a fresh injury around her right eye, which was black and blue and swelling, and she had bald spots on her head where hair was missing. Deputy Dodd took Tanisha’s statement, photographed her injuries, and called the jail to add an additional charge to Broadus’s booking sheet. When he was informed Broadus had just bailed out, he issued an arrest warrant.

Broadus did not appear for his arraignment on August 20, 2004. Brieno tried to locate Broadus by making telephone calls to numbers he had provided, but was unable to locate him.

Felony Evading

On November 4, 2004, an off-duty Hanford police dispatcher saw a maroon Ford Mustang, that had been reported stolen, in the area of Idaho Avenue and 10th Avenue in Kings County. Kings County radio dispatch advised that Broadus was the car’s registered owner and he had several active arrest warrants. Several Kings County Sheriff’s Department patrol units, including Deputy Sheriff Jaime Ramirez, responded to the area, but they were unable to find the car. At about 1:00 p.m., they were cleared from the call.

Deputy Sheriff Lydia Montoya, who had heard the radio traffic, was driving west on Idaho when she spotted a red car to her right just before reaching 9th Avenue. Deputy Montoya turned right onto 9th, made a U-turn, and stopped at the stop sign at the intersection with Idaho. She called Deputy Ramirez to get more information about the stolen car. Deputy Ramirez returned to the area. Just as he passed 9th Avenue while driving on Idaho, he saw the car pull out of a driveway onto the road in front of him and drive east on Idaho. Deputy Ramirez switched on his overhead emergency lights and siren.^[2] As he was doing so, he called in the license plate and confirmed the car had been reported stolen. He was also advised the vehicle registration had expired, which is a violation of Vehicle Code section 4000, subdivision (a). Broadus looked at his rearview mirror, stuck his head out the front driver’s side window, looked back at Deputy Ramirez, and “sped away.” Until reaching Highway 43, which was about nine-tenths of a mile away, Broadus drove about 90 miles per hour. Traveling at that speed is a Vehicle Code violation, as the posted speed limit was 55 miles per hour.

When he reached the intersection at Highway 43, Broadus slowed down and rolled through the stop sign at about 15 miles per hour without stopping, which is another Vehicle Code violation. Broadus accelerated and lost traction as he turned left onto Highway 43. He lost control of the car and “fish-tail[ed]” into the opposing lane of traffic, causing at least one other vehicle to take evasive action. This is another Vehicle Code violation, as Broadus was driving on the wrong side of the road. When Broadus regained control, he made a U-turn into the southbound lane of Highway 43. Both Broadus and Deputy Ramirez paused as they faced each other on the highway. Broadus appeared to be reaching down for something, so Deputy Ramirez took his gun out of its holster and prepared to exit his patrol car. Before he could get out, Broadus sped away; as he did so, he put his hand out the window and waved. Deputy Ramirez made a U-turn and pursued Broadus as he turned east onto Idaho.

Meanwhile, California Highway Patrol Officer Chris Maselli heard about the search for the stolen car over the radio and drove to the area of Idaho and 9th, where he met Deputy Montoya. As they were talking, they saw the stolen car drive by at a distance, traveling eastbound on Idaho. When Officer Maselli reached Idaho, he saw Deputy Ramirez driving eastbound on Idaho at 90 to 100 miles per hour. Officer Maselli followed him, but waited at the intersection of Idaho and Highway 43 when he saw the two vehicles stop. Officer Maselli saw Broadus accelerate and make a U-turn onto southbound Highway 43, with Deputy Ramirez in pursuit. As Officer Maselli joined the pursuit,^[3] he heard Deputy Montoya drive up behind him with lights and siren activated, and allowed her to pass him.

As Broadus continued east on Idaho with Deputy Ramirez behind him, Deputy Montoya caught up with them just east of Highway 43, followed by Officer Maselli. Broadus again reached a speed of about 90 miles per hour, but slowed down to 55 to 60 miles per hour on Idaho. Broadus turned north on 6th Avenue. He was now traveling about 35 to 45 miles per hour. He straddled the center divider line, which is another Vehicle Code violation.

At the request of the sheriff’s department, Officer Maselli took over the pursuit. Officer Maselli activated his lights and siren, passed the deputies, and used his public address system to order Broadus to pull over and stop. Broadus looked back through the open driver’s side window and appeared to be trying to tell Officer Maselli something. At the same time, Broadus’s car drifted out of his lane, which is a Vehicle Code violation. A second CHP unit arrived on the scene and Broadus finally stopped. Officer Maselli stopped behind him, and the deputies pulled up on either side of him. As Broadus got out of his car he attempted to talk to Officer Maselli, who took him into custody.

At the jail, after Officer Maselli advised Broadus of his Miranda^[4] rights, Broadus agreed to talk. Officer Maselli asked Broadus why he ran. Broadus responded: “See, the sheriff’s office came by my house and told my wife that they were looking for me regarding an assault case. I thought this was an old case and thought to myself, “I can’t win these cases if I go to court and fight it. They are going to twist things around and I’m going to need a lawyer.” So I was on the run until I could get a lawyer. I have two strikes and could be facing a third.” Officer Maselli asked, “So you knew you had a warrant and didn’t want to go back to prison so you ran? Broadus responded “yes.” Officer Maselli asked why the car had been reported stolen, since Broadus was one of the registered owners. Broadus explained he sold the car to a cousin about a month ago, but had taken it back two weeks before because the cousin never paid for it. Broadus was booked into jail with three outstanding warrants.

Defense

Broadus testified he appeared in court on August 9, 2004, after his arrests for assault and spousal abuse. At that appearance, he was told no charges had been filed yet and he could return in 30 days or wait for a letter should the charges be filed. Broadus agreed to return in 30 days and went home. He did not remember he was supposed to appear on August 20, 2004, and thought that case had been dropped. On cross-examination, he acknowledged he was given a piece of paper on August 9 advising him to appear on August 20. Later, a friend showed him his picture in a newspaper, which stated he was wanted for assault. His wife also told him law enforcement officers were looking for him.

Broadus’s wife Tanisha testified he suffered from schizophrenia and could not remember appointments. Tanisha testified the injuries she showed the deputies in July 2004 were actually caused during a fight she had with a girl with whom Broadus was having an affair. When she made the report of spousal abuse to Deputy Dodd, Tanisha said she lied because she “wanted him to pay.” Tanisha later told an officer and Broadus she wanted to drop the charge. In August 2004, she was not living in their home and was not there to help Broadus remember appointments.

Broadus testified on November 4, 2004, he was at a friend’s house on Idaho Avenue when he noticed police cars in the area and decided he should leave. He saw one of the police cars behind him as he drove away, but said the officer’s overhead lights were not turned on until he reached the stop sign at Highway 43. He made the turn onto Highway 43 and found two police vehicles waiting for him. He pulled along the side of the road and stopped. One of the officers “shouted and he went for his gun, and I didn’t want to wait out there in the country for them to shoot me. They just shot that dude in Lemoore.” Broadus made a U-turn and kept driving. Broadus decided to drive to the police station in Hanford where there would be witnesses, and claimed he never went faster than 45 miles per hour.

DISCUSSION

A. Vehicle Code section 2800.2

Broadus contends Vehicle Code section 2800.2^[5] contains an unconstitutional mandatory presumption. As pertinent, the statute provides: “(a) If a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison, or by confinement in the county jail for not less than six months nor more than one year.... (b) For purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under Section 12810 occur, or damage to property occurs.”^[6]

Section 12810 describes violations that carry “points,” which may cumulate to cause administrative action against a person’s driving privileges. (See §§ 12809, 12810.5, 13359.) The statute lists some violations that either do or do not carry a point count, and also provides “any other traffic conviction involving the safe operation of a motor vehicle upon the highway shall be given a value of one point.” (§ 12810, subd. (f).) As our Supreme Court has recognized, many of these violations can be committed without endangering human life, such as “driving an unregistered vehicle owned by the driver (§§ 40001, 12810, subds. (e), (g)(1)), driving with a suspended license (§§ 14601, 12810, subd. (i)), driving on a highway at slightly more than 55 miles per hour when a higher speed limit has not been posted (§§ 22349, subd. (a), 12810, subd. (e)), failing to come to a complete stop at a stop sign (§§ 22450, 12810, subd. (e)), and making a right turn without signaling for 100 feet before turning (§§ 22108, 12810, subd. (e)).” (People v. Howard (2005) 34 Cal.4th 1129, 1137-1138.)^[7]

Subdivision (a) of section 2800.2 elevates misdemeanor evasion, section 2800.1, to a felony by adding the element of driving “‘in a willful or wanton disregard for the safety of persons or property.’” (People v. Pinkston (2003) 112 Cal.App.4th 387, 390-391.) Subdivision (b) is the portion of the statute Broadus contends creates an unconstitutional mandatory presumption.^[8] He argues: “The basic facts the prosecution must prove to bring the presumption into play - three Vehicle Code violations or damage to property - do not on their face establish that the defendant acted with conscious disregard for the safety of persons or property during the pursuit.”

This court, however, has concluded the statute does not create an impermissible mandatory presumption in Laughlin, supra, 137 Cal.App.4th 1020. After reviewing the law regarding mandatory presumptions and the rules of substantive law, we concluded in Laughlin that the language of section 2800.2, subdivision (b) is a rule of substantive law: “Subdivision (b) does not contain a presumption. It sets forth a definition of conduct that is deemed to be the legal equivalent of willful or wanton disregard for purposes of section 2800.2. Subdivision (b) does not follow the common lay meaning of the term but is a term of art for purposes of section 2800.2.” (Laughlin, supra, 137 Cal.App.4th at pp. 1027-1028.)

We also reviewed the legislative history of the statute, which we concluded supported this interpretation. (Laughlin, supra, 137 Cal.App.4th at p. 1028.) As we explained: “The analysis by the Senate Rules Committee of Assembly Bill 1999 for the 1995-1996 term states that this bill ‘would define “a willful or wanton disregard for the safety of persons or property” as behavior that includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count occur[ ].’ (Sen. Rules Com., Office of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 1999 (1995-1996 Reg. Sess.) as amended July 7, 1996, p. 2, italics added.) In describing what Assembly Bill 1999 would provide, the Legislative Counsel’s Digest states that the bill ‘would describe acts that constitute driving in a willful or wanton disregard for the safety of persons or property.’ (Stats. 1996, ch. 420, italics added.) Language used by the Legislature makes it clear it was not creating a mandatory presumption but was instead creating a rule of substantive law.” (Laughlin, supra, 137 Cal.App.4th at p. 1028.)

In reaching this conclusion, we agreed with two other appellate courts which reached the same result: People v. Williams, supra, 130 Cal.App.4th 1440 and People v. Pinkston, supra, 112 Cal.App.4th 387. (Laughlin, supra, 137 Cal.App.4th at p. 1028.)

By amending section 2800.2 to provide these alternate ways of committing the crime, the Legislature simply expanded the crime’s definition. (People v. McCall (2004) 32 Cal.4th 175, 187-191 [statute deeming possession of precursor chemicals to constitute crime of possession of end product did not create any presumption, but simply expanded definition of the crime].) This disposes of Broadus’s alternative claim that, as applied to this case, the permissive inference in section 2800.2 - that reckless driving may be inferred from driving with a suspended license - is irrational. The statute does not provide an inference of willful or wanton disregard for the safety of person or property; it provides alternative definitions of it. Further, it was not irrational for the Legislature to treat evading a peace officer as a felony in cases where property damage occurs or the defendant violates three traffic safety laws. (See People v. McCall, supra, 32 Cal.4th at p. 189 [“Substantive due process allows lawmakers broad power to select the elements of crimes, and to define one thing in terms of another. [Citations.]”)

B. The Failure to Give a Unanimity Instruction

Broadus claims the instructions given in this case were insufficient because there were multiple ways in which section 2800.2 could have been violated - driving with general willful and wanton disregard, multiple traffic infractions or property damage - and the trial court should have given the jury a unanimity instruction requiring the jury to agree on which of these three means of commission formed the basis of a guilty verdict. This argument is squarely contrary to controlling case law. “[W]here a statute prescribes disparate alternative means by which a single offense may be committed, no unanimity is required as to which of the means the defendant employed so long as all the members of the jury are agreed that the defendant has committed the offense as it is defined by the statute. It follows that even though the evidence establishes that the defendant employed two or more of the prescribed alternate means, and the jury disagrees on the manner of the offense, there is no infirmity in the unanimous determination that the defendant is guilty of the charged offense.” (People v. Sutherland (1993) 17 Cal.App.4th 602, 613; see also People v. Pride (1992) 3 Cal.4th 195, 249.)

While acknowledging the above rule, Broadus maintains that to the extent the rule prevails in California, it is inconsistent with the United States Supreme Court’s holding in Schad v. Arizona (1991) 501 U.S. 624, 630-633, wherein the Court held that due process precludes a state from punishing a criminal defendant under a statute so broadly defined that it is fundamentally unfair. The California Supreme Court, however, has already thwarted such a claim in People v. Santamaria (1994) 8 Cal.4th 903, 918-919, wherein the Court stated that California’s version of the unanimity rule, requiring juror unanimity only on the issue of whether the defendant is guilty of the charged crime irrespective of whether there is agreement on which of several theories of guilt apply, “passes federal constitutional muster.” (See People v. Briscoe (2001) 92 Cal.App.4th 568, 591.) As a Court of Appeal, we have no power to declare otherwise. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

C. Impeachment

Broadus contends the trial court abused its discretion under Evidence Code section 352 by admitting evidence of a 1992 felony conviction for voluntary manslaughter with use of a firearm to impeach him. Broadus sought to exclude the conviction on that ground, arguing that a 13-year-old manslaughter conviction does not have much bearing on the issue of honesty. The trial court ruled as follows: “ with regard to the [Evidence Code section] 352 objection, first on [People v.] Castro [(1985) 38 Cal.3d 301], the crime of voluntary manslaughter is a moral turpitude crime. Assessing the conventional [section] 352 issues, the conviction is certainly not recent; however, nor is it exceedingly remote. It does not appear from the offer of proof that Mr. Broadus has lived a blame worthy life since then having a 1995 return to custody for violation of parole and three subsequent misdemeanor convictions. The crime itself does not directly in the traditional fashion go to honesty or veracity in the same nature that theft, fraud or perjury convictions would, and it has some potential to prejudice due to the violent nature of the crime. On the other hand, one may certainly logically reason that someone who would intentionally, criminally kill another human being would have few qualms about lying about them under oath. On balance, the Court feels that the probative value of the proferred conviction outweighs any undue prejudice or any tendency to confuse issues and will permit its use for impeachment.”

Castro provides that a witness may be impeached with a prior conviction of a felony involving moral turpitude, but the trial court retains the discretion to exclude the prior conviction if it is more prejudicial than probative under Evidence Code section 352. (Castro, supra, 38 Cal.3d at pp. 306, 312-314; see People v. Collins (1986) 42 Cal.3d 378, 381.) In deciding whether to exercise its discretion to exclude a prior conviction under section 352, a trial court considers four factors set forth by our Supreme Court in People v. Beagle (1972) 6 Cal.3d 441. (Castro, supra, 38 Cal.3d at p. 307; People v. Green (1995) 34 Cal.App.4th 165, 182 (Green).) The factors are: “(1) whether the prior conviction reflects on honesty and integrity; (2) whether it is near or remote in time; (3) whether it was suffered for the same or substantially similar conduct for which the [defendant] is on trial; and, (4) finally, what effect admission would have on the defendant’s decision to testify.” (Castro, supra, at p. 307.) A trial court’s discretionary ruling admitting or excluding a prior conviction for impeachment will not be disturbed unless the ruling exceeds the bounds of reason and creates a miscarriage of justice. (Green, supra, 34 Cal.App.4th at pp. 182-183.) In the event of an erroneous ruling, we will reverse only if it is reasonably probable that a result more favorable to the defendant would have occurred in the absence of the error. (Castro, supra, 38 Cal.3d at p. 319; see People v. Watson (1956) 46 Cal.2d 818, 836.)

Broadus argues the trial court abused its discretion by allowing the prosecutor to impeach him with his voluntary manslaughter conviction because he could have been impeached with the conduct underlying his misdemeanor conviction for petty theft under People v. Wheeler (1992) 4 Cal.4th 284. Broadus asserts that the petty theft conviction is more probative of his credibility than the voluntary manslaughter conviction and, as a crime of violence, his voluntary manslaughter conviction is more prejudicial than the petty theft conviction, therefore the trial court should have allowed him to be impeached with the petty theft prior instead.

Broadus, however, never raised this argument in the trial court. Accordingly, we are precluded from considering it. (See People v. Catlin (2001) 26 Cal.4th 81, 122-123 [contention that admission of other-crimes evidence violated right to fair trial waived by failure to raise it in trial court]; People v. Rivera (1984) 162 Cal.App.3d 141, 146-147 [defendant’s failure to object waived constitutional challenge to jury instruction allowing jury to consider defendant’s prior conviction for impeachment purposes, where error did not result in miscarriage of justice].) Even if, as Broadus asserts, the parties and court were on notice that Broadus had suffered a misdemeanor conviction for petty theft which was also available for impeachment purposes, the prosecutor did not request the use of this conviction and defense counsel did not argue that it should be used in place of the voluntary manslaughter conviction. D. Juror Misconduct

Broadus contends his constitutional rights were violated because the trial court failed to conduct an adequate inquiry into a juror’s communication with a witness and his counsel was ineffective for not requesting further inquiry.

Trial Proceedings

On the second day of trial, during the prosecution’s case-in-chief, the prosecutor advised the court that a juror had initiated a conversation in the hallway with Officer Chris Maselli, who had not yet testified. The court questioned Officer Maselli about the exchange:

“THE COURT: Mr. Maselli, the district attorney has related some information to the Court that I believe you related to her about some contact that a juror made with you, and I understand it was this morning?

“[OFFICER MASELLI]: Yes, your Honor.

“THE COURT: I’d like to get firsthand from you what happened. Could you tell me what happened?

“[OFFICER MASELLI]: Yes, sir. One of the jurors approached me and asked me if I knew an Officer Trip who worked for the California Highway Patrol, at which point I stated I did. He said that he went to high school with the individual. I advised him that he now worked in Coalinga and was sergeant, and he was a good guy. He said that he was. He said that there was another officer that he couldn’t remember his name that lived in Bakersfield or worked out of Bakersfield, at which time I shook my head. He couldn’t remember his name. That was pretty much the extent of the conversation that took place.

“THE COURT: [Defense counsel], any questions of Mr. Maselli on the subject?

“[DEFENSE COUNSEL]: No.

“THE COURT: [Prosecutor]?

“[PROSECUTOR]: No.”

After the parties identified the juror in question, the court stated: “Well, the Court intends at the minimum to bring [Juror No. 006] into court and admonish him as to his duty not to speak with any of the witnesses. [Defense attorney], do you have any comments or requests for other or further action in the matter?” After a brief off-the-record discussion between defense counsel and Broadus, defense counsel responded, “No, your Honor.” The prosecutor also did not have any comments or requests for other or further action, stating “if you are just going to caution him, I think that is appropriate.”

The juror was brought into court and the following exchange took place:

“THE COURT: [Juror No. 006], I understand that you had some conversation this morning outside of the court with one of the witnesses in the case, a highway patrol officer. Were you aware that that officer was a witness in the case?

“THE JUROR: Um, no and yes. I assumed that he was out there for a reason. But I --

“THE COURT: You didn’t know who he was at --

“THE JUROR: No, I don’t know and still don’t know.

“THE COURT: He is going to be a witness in this case.

“THE JUROR: Okay.

“THE COURT: And I have admonished the jury that it’s important that they not converse with any of the witnesses in the case.

“THE JUROR: Okay.

“THE COURT: I understand that you had no way of knowing for sure who is going to be a witness in the case, but you can probably be on pretty safe grounds assuming that if there is somebody out there in a uniform, there’s a good chance that the person is going to be a witness in the case. So I need to remind you once again don’t engage in any even social conversation with the witnesses, with the lawyers, with the defendant in this case, because it just makes it a whole lot easier for everybody concerned. And as I told the jurors yesterday, even if all you are talking about are things that are unrelated to the case, it just causes other people who might see the contact to wonder what is going on and what are they talking about, and it’s just better for everybody concerned if there is not even any reason for people to wonder about that. So can you keep that in mind and be super cautious about not engaging in any even social conversations with people who might be witnesses in the case?

“THE JUROR: Yes.”

Analysis

Broadus contends the trial court’s inquiry into possible juror misconduct was inadequate. According to him, the court had a sua sponte obligation to “question the juror himself about the details surrounding the interaction[,]” and to inquire “about any possible bias this juror may have had in favor of law enforcement“ and “what, if any, affect that bias would have on his deliberations.”

In articulating his argument, Broadus acknowledges the crucial facts that he did not object below to the sufficiency of the court’s inquiry or ask that Juror No. 006 be discharged. Instead, his defense counsel, after consulting with him, agreed to the court’s decision to simply admonish the juror. Having failed to provide the trial court with an opportunity to correct the alleged deficiency, Broadus waived any objection he might otherwise have had to the sufficiency of its inquiry or its failure to discharge Juror No. 006. (People v. Allen (1986) 42 Cal.3d 1222, 1267, fn. 28 [juror misconduct claim rejected, in part because it was not raised below]; see also People v. Kipp (1998) 18 Cal.4th 349, 364-366 [argument that juror should have been excused for cause was waived because peremptory challenges were not exhausted and juror was not challenged below] and People v. Bell (1998) 61 Cal.App.4th 282, 289 [objection to discharge of juror on constitutional grounds deemed waived].)

Furthermore, defense counsel’s failure to preserve the issue for appellate review did not render his assistance ineffective.^[9] When the court asked defense counsel whether he requested any action other than the court’s proposal to admonish the juror, defense counsel conferred with Broadus before declining the offer. As a result of this conversation, defense counsel reasonably could have concluded that Broadus wanted to retain this juror. There are countless ways to provide effective assistance in a case and even the best criminal defense attorneys would not defend a particular client in the same way. (People v. Duncan (1991) 53 Cal.3d 955, 966.) Since counsel’s course of conduct could have been sound trial strategy, we reject on direct appeal any claim of ineffective assistance of counsel associated with the failure to demand further inquiry or to seek discharge of this juror. (People v. Kipp, supra, 18 Cal.4th at pp. 367-368 [ineffective assistance not shown because counsel’s failure to challenge prospective juror may have been intentional].)

DISPOSITION

The judgment is affirmed.

_____________________

Gomes, J.

WE CONCUR:

_____________________

Levy, Acting P.J.

_____________________

Kane, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

^[1] The charges arose from two separate superior court case numbers. The cases were consolidated for trial.

^[2] Deputy Ramirez was driving a black and white patrol car with a star logo on the doors, “sheriff” painted on the hood, overhead lights, and a siren. He wore a uniform with star-shaped patches on the shoulders that said “County of Kings Sheriff.”

^[3] Officer Maselli was driving a black and white patrol vehicle marked with California Highway Patrol stars on both doors and “Highway Patrol” painted on the trunk. The vehicle was equipped with overhead lights and a siren. Officer Maselli wore a uniform shirt with a badge and Highway Patrol patches on both sleeves.

^[4] Miranda v. Arizona (1966) 384 U.S. 436.

^[5] All further statutory references are to the Vehicle Code unless otherwise noted.

^[6] Subdivision (b) was added to section 2800.2 in 1996. (People v. Laughlin (2006) 137 Cal.App.4th 1020, 1023 (Laughlin).)

^[7] Section 12810 was amended in 2004 so that subdivision (e) became subdivision (f) and subdivision (g)(1) became subdivision (i)(1). (Stats. 2004, ch. 650, § 9.)

^[8] “A mandatory presumption tells the trier of fact that if a specified predicate fact has been proved, the trier of fact must find that a specified factual element of the charge has been proved, unless the defendant has come forward with evidence to rebut the presumed connection between the two facts. [Citations.] In criminal cases, a mandatory presumption offends constitutional principles of due process of law because it relieves the prosecutor from having to prove each element of the offense beyond a reasonable doubt. [Citations.]” (People v. Williams (2005) 130 Cal.App.4th 1440, 1444-1445.)

^[9] To prevail on an ineffective assistance claim, the defendant must show that counsel’s performance fell below an objective standard of reasonableness and that, but for counsel’s unprofessional errors and omissions, it is reasonably probable that the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 688, 693-694.) When a defendant claims incompetence of counsel on direct appeal, he must overcome the presumption that, under the circumstances, the challenged error or omission might have been a strategic decision. Where the deficiency could have been a tactical choice, the claim is properly pursued in a petition for writ of habeas corpus. (People v. Pope (1979) 23 Cal.3d 412, 426-428, overruled on another ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081 fn. 10, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823 fn. 1.)