Filed 11/20/18 P. v. Sida CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted Freddy Sida of willful harm to a child, false imprisonment of a hostage, resisting a peace officer, and vandalism. The trial court found true enhancement allegations and sentenced defendant to 17 years in prison.

Defendant now contends (1) the trial court abused its discretion in allowing opinion testimony by a deputy sheriff that defendant used a child as a shield prior to his arrest, and (2) if his contention is forfeited, he received ineffective assistance of counsel.

We conclude defendant forfeited his contention by failing to object in the trial court, and he has not established ineffective assistance. We will affirm the judgment.

BACKGROUND

S. Nayabkhil moved into an apartment in March 2015. He left his apartment for five to 10 minutes on March 29, 2015, locking the door behind him. When he returned, Nayabkhil saw defendant and codefendant Fermen Navarette inside the apartment. Navarette had Nayabkhil’s sunglasses in his pocket.

Feeling threatened, Nayabkhil ran out of the apartment and called 911. He described the burglars and what they wore to a 911 operator. A Sheriff’s helicopter followed a suspect who matched the description of one of the burglars and directed deputies to a townhouse.

A car was parked in front of an open garage door at the townhouse. Sacramento County Sheriff’s Deputy Craig Evans walked behind the car and saw K. Barrera and three small children come out of the garage. Deputy Evans was in uniform. He asked Barrera who lived at the townhouse. Barrera responded that the house was her brother’s and her brother lived there. But she stopped answering the deputy’s questions when he asked if anyone had just arrived at the townhouse. Holding the youngest child, Barrera started to walk toward the garage.

Deputy Evans lightly grabbed Barrera’s arm and led her away from the garage. Barrera yelled: “Stop touching me.” “Where are you taking me?” and “Leave me alone.” Defendant, Navarette and a third man came out of the garage and rushed toward the lone deputy. Deputy Evans believed defendant and Navarette were the burglars because they matched the descriptions he received.

Deputy Evans released Barrera’s arm and drew his handgun, pointing it in the direction of the three males. He repeatedly ordered the men to stop and to get on the ground. He intended to place defendant and Navarette under arrest. The third male returned to the townhouse. Defendant and Navarette stopped but did not get on the ground.

One of the children -- an 8- to 10-year-old boy -- started walking in the direction of the garage. Defendant took a step forward, picked up the child with his right arm, wrapped his arm around the child’s waist, held the child’s legs behind him and the child’s upper body in front of him and carried the child toward the garage.

During trial, the prosecutor asked if Deputy Evans used a specific word in his report to describe how defendant picked up the child. Deputy Evans responded, “Once he picked that child up, he didn’t -- [defendant] didn’t just turn towards the garage and walk away. He was holding that child, essentially, between he and I, and using that child as a shield.” Counsel for Navarette objected on the ground of speculation and moved to strike the testimony. Defendant’s counsel did not join in the objection, or object on the basis of improper opinion testimony or on any other basis. The trial court overruled cocounsel’s objection, stating “it’s his impression of what he saw. You can cross-examine.”

Deputy Evans described how defendant walked sideways as he proceeded into the garage and away from the deputy. The child began to cry. He said Barrera repeatedly told defendant, “Put him down.” Defendant walked toward the door in the garage which led into the house. Navarette also walked into the garage.

Deputy Evans holstered his gun and drew his Taser because the child was between him and defendant. When they were in the garage, defendant put the child down. The child ran out of the garage, screaming. Defendant tried to open the door into the house, but the door was locked.

Deputy Evans repeated the orders to get on the ground. He told Navarette he would get Tased if he did not get on the ground. Navarette complied after repeated orders. Deputy Evans continued to order defendant to get on the ground. He used the Taser on defendant when defendant started to back toward the door. Both barbs of the Taser did not strike defendant and he continued toward the back of the garage. Defendant finally got on the ground when a second deputy arrived with gun drawn. Defendant was handcuffed and placed in the back of a patrol car. He kicked at the rear window of the patrol car, causing damage.

Defendant argued at trial that he did not restrain a child, he did not use a child as a shield and he was simply trying to get the child out of harm’s way. Testifying for the defense, Barrera said she had her two-year-old son and eight-year-old stepsister with her on the day of the incident. There were no other children present. Defendant and Navarette came out of the house. No one else came outside. Barrera did not know defendant and Navarette were in her house before they came outside. She did not remember telling a defense investigator that defendant and Navarette had been at her house for about 30 minutes before she went outside to leave. When they were in the garage, defendant picked up Barrera’s stepsister when she was in front of him “to move her aside.” Defendant did not move toward the door that led into the house after he picked up the stepsister. He did not use the stepsister as a shield. Defendant and Navarette got on the ground after the deputy ordered them to do so. Defendant and Navarette were on the ground when a deputy Tased Navarette.

An investigator with the Public Defender’s Office testified in rebuttal that Barrera told her that defendant and Navarette had been at Barrera’s house for about 30 minutes before Barrera went outside to leave. Barrera told the investigator that she told defendant to put the stepsister down after he grabbed her. The prosecutor presented video-recordings contradicting Barrera’s testimony in other respects.

The jury convicted defendant of willful harm to a child (§ 273a, subd. (a) -- count two), false imprisonment of a hostage (§ 210.5 -- count three), resisting, obstructing or delaying a peace officer in the performance of his duties (§ 148, subd. (a)(1) -- count four) and vandalism (§ 594, subd. (a) -- count five). The jury could not reach a verdict on count one (§ 459 - first degree burglary) and the trial court declared a mistrial on that count. In a bifurcated proceeding, the trial court found true allegations that defendant had a petition sustained against him for robbery as a juvenile (§ 211), was previously convicted of assault with force likely to produce great bodily harm (§ 245, subd. (a)(1)), and committed an offense resulting in a felony conviction within five years of serving a prison term (§ 667.5, subd. (b)).

The trial court sentenced defendant to 17 years in prison.

DISCUSSION

I

Defendant contends the trial court abused its discretion in allowing Deputy Evans to opine that defendant used the child as a shield prior to his arrest. Defendant argues that to prove he was guilty of false imprisonment of a hostage the People had to prove he acted for purposes of using the child as a shield (§ 210.5) and the challenged testimony was an improper opinion regarding that element of the offense.

As a threshold matter, the Attorney General argues defendant forfeited his appellate claim by not objecting in the trial court. A defendant forfeits an appellate claim by failing to make a timely and specific objection on the ground asserted on appeal. (People v. Jablonski (2006) 37 Cal.4th 774, 823; People v. Partida (2005) 37 Cal.4th 428, 433-434.) Here, defendant did not object in the trial court to the challenged testimony. Accordingly, the contention is forfeited.

Anticipating this result, defendant argues his trial counsel provided ineffective assistance. Ineffective assistance of counsel is established by proving that (1) trial counsel’s representation was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficiency resulted in prejudice to defendant. (People v. Maury (2003) 30 Cal.4th 342, 389; Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 692-693].) With regard to prejudice, “the record must demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation.]” (Maury, at p. 389) The defendant must show a reasonable probability of a more favorable result. (People v. Ledesma (1987) 43 Cal.3d 171, 217-218; Strickland, at pp. 693-694.)

Here, defendant’s ineffective assistance claim fails because he has not established deficient representation and prejudice. Nonexperts are allowed to state opinions in limited situations. (Evid. Code, § 800.) But Deputy Evans did not provide an opinion. He described what he saw defendant do on the date of the incident. Deputy Evans said when the child was in front of defendant, defendant picked the child up with his right arm, wrapped his arm around the child’s waist, held the child’s legs behind him and the child’s upper body in front of him, and carried the child like “a rolled up rug.” Deputy Evans explained, “Once he picked that child up, he didn’t -- [defendant] didn’t just turn towards the garage and walk away. He was holding that child, essentially, between he and I, and using that child as a shield.” Thus, no improper opinion objection was warranted.

Further, there was no reasonable probability of a more favorable result if defendant’s trial counsel had objected to the challenged testimony because Deputy Evans demonstrated how defendant held the child in front of his body, between defendant and Deputy Evans, while walking backwards toward the door in the garage after the deputy drew his gun and ordered defendant to get on the ground. Defendant does not object to the demonstration and other testimony by Deputy Evans. Additionally, Barrera agreed defendant held the child in front of him after picking the child up. She told a defense investigator defendant grabbed the child and Barrera told defendant to put the child down. She also said defendant backed into the garage when he saw the police.

DISPOSITION

The judgment is affirmed.

/S/

MAURO, Acting P. J.

We concur:

/S/

DUARTE, J.

/S/

HOCH, J.