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Friday, December 02, 2005

Austin v. Wiskel

Filed 11/30/05 Austin v. Wiskel 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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


SALLY O. AUSTIN, H027669


Plaintiff and Respondent, (Santa Clara County


Superior Court


v. No. CV771376)


ESTHER T. WISKEL, et al., ORDER MODIFYING OPINION


AND DENYING REHEARING


Defendants and Appellants.


_____________________________________/


THE COURT:


It is ordered that the opinion filed herein on November 3, 2005, be modified by striking the sentence on page 7, lines 14-16 that reads: “Even in this context, defendants, as the prevailing parties, were entitled to recover their pre-election costs, and plaintiff was not entitled to recover her pre-election costs.” and replacing it with: “Even in this context, plaintiff was not entitled to recover her pre-election costs.”


This modification does not affect the judgment.


The petition for rehearing is denied.


Dated: ___________________________


Mihara, J.


_____________________________


Premo, Acting P.J.


_____________________________


McAdams, J.


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P. v. Pham

Filed 11/30/05 P. v. Pham CA4/3



NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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



FOURTH APPELLATE DISTRICT



DIVISION THREE








THE PEOPLE,


Plaintiff and Respondent,


v.


CHIEN DINH PHAM,


Defendant and Appellant.



G034625


(Super. Ct. No. 02NF1656)


O P I N I O N



Appeal from a judgment of the Superior Court of Orange County, Patrick H. Donahue, Judge. Affirmed.


Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant.


Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Janelle Boustany, Deputy Attorneys General, for Plaintiff and Respondent.


* * *


A jury convicted Chien Pham of second degree murder (Pen. Code, § 187; all statutory references to this code unless noted) and found he used a firearm (§ 12022.53). He claims the trial court and the prosecution violated his due process rights by refusing to grant immunity to a key defense witness, who then refused to testify. He also claims the trial court committed various evidentiary and instructional errors. Finding these contentions without merit, we affirm.


I


Factual and Procedural Background


On May 18, 2002, the Ritz dance club in Anaheim entertained a near capacity crowd to hear a popular local singer. As a precaution, several security guards used a metal detector and patted down most of the patrons as they entered the nightclub. By 1:30 a.m., most of the patrons had departed. Two groups totaling approximately 40 people remained. Members of the “Tiny Rascals” gang (TRG) congregated at one table, while other patrons, including defendant, sat at a different table.


A fight erupted when a man tossed a bottle of cognac onto the TRG table. The combatants threw chairs and broken bottles at each other during the melee. At the outset of the fight, defendant was struck near his eye by flying glass when he turned toward the TRG table. Angry, frustrated, and bleeding, defendant sat at the table and did not join in the brawl.


Security guards moved to quell the disturbance by macing the combatants and expelling the non-TRG group, some of whom were aligned with the Oriental Playboys or O.P.B. gang, through the front door of the club. Several TRG partisans, including 28-year-old victim Tinh Le (Tinh), departed out the emergency back door of the establishment and proceeded around to the front. As the two groups converged, guards intervened to restrain two TRG men who moved toward another man in an aggressive manner.


Defendant approached Tinh on the sidewalk in front of the club. According to the Ritz’s security supervisor, Atour Evaz, the two spoke in Vietnamese for approximately 20 to 30 seconds. To Evaz, defendant appeared “kind of mad,” but Tinh remained calm. The surveillance videotape showed Tinh had nothing visible in his hands or waistband and did not make a move toward his waistband. Tinh lifted his hands in an “open-handed” gesture. When Tinh turned towards the approaching security guard, defendant removed a gun and fired at Tinh’s torso from about three or four feet away. He fired twice more as the victim reeled back; one shot struck Tinh’s head. Evaz ran into the club and defendant fled down an alley to the north of the building. Evaz heard multiple gunshots, perhaps as many as 40, seemingly from “everywhere.”


Based on casings found at the scene, assailants fired at least four guns during the melee. Police recovered the pistol used to kill Tinh in the street adjacent to the parking lot in front of the club. The crime lab identified defendant’s DNA on the grip of the gun. The FBI arrested defendant September 1, 2002, in Las Vegas. He provided a false identity card, but his wallet contained his California driver’s license with his real name. Defendant explained he kept the false identification because of “club fighting” in California. Shown a video of the incident, defendant denied he was the shooter and did not claim anyone had threatened him with a gun inside or outside the Ritz.


Defendant produced evidence that Tinh had a gun on his person at the time he was shot. Several of his TRG cohorts removed the weapon after defendant shot the victim and fled. Tinh’s hands had gunshot residue on them, obtained from either handling a weapon or proximity to one that had been fired.


Defendant testified he attended the club with friends and relatives. He claimed he became intoxicated after drinking cognac throughout the evening. Toward the end of the night, a fight broke out when someone flung a glass or bottle at the TRG table. Defendant was struck in the face by a glass or bottle thrown from the TRG table. The area around his left eye began to bleed. It was too dark and crowded to identify his assailant. While the two groups fought, he sat down because the injury he sustained was painful. During the brawl, he spotted someone holding a gun, but did not recognize the individual. Frightened and frustrated by the injury, he ran out the front door to the parking lot to locate a friend for a ride home. He did not see his friends as people rapidly departed from the club. Defendant asked to borrow a gun from a man named Do. When Do hesitated, defendant grabbed the weapon and tucked it behind his waist. He approached Tri Le (Tri), a member of the TRG group whom defendant knew, because he wanted to learn why he had been hit and explain he was not involved with either of the groups. Defendant admitted he was angry, but did not plan to shoot anyone for revenge. He felt safer or more confident with the gun.


Defendant walked up to a group that included Tinh, who took a couple of steps toward him. Defendant asked why he had been hit. Tinh appeared angry and cursed at him, “Mother f-----, I am going to beat you up.” Tinh’s hands went up. Defendant believed Tinh had a gun because of the bulge in Tinh’s shirt at his waist. Defendant thought the group planned to attack him to beat him up. As Tinh raised his hands, defendant, frightened, pulled out the gun, and fired at Tinh. Defendant shot Tinh so he could escape and did not want to kill him. He fled west down the alley toward the back parking lot. Someone fired at him from the back parking lot and from the alley. He returned fire down the alley, and the person ran away.[1] He reversed course and ran back down the alley and to the street, firing shots into the air to scare others away, and then tossed the gun into the street.


Following a July 2004 trial, a jury acquitted defendant of first degree premeditated murder with special circumstances (lying in wait, gang benefit theories), and a substantive gang charge and gang enhancements. The jury convicted defendant of second degree murder as a lesser included offense and found the allegation he used a weapon to be true.[2] The court imposed a 15-year-to-life prison term for the murder and added 25 years for use of the firearm. This appeal followed.


II


Issues Concerning Potential Witness Tri


Defendant raises several issues concerning Tri, a TRG gang member and percipient witness who refused to testify at trial. Before turning to these issues, we summarize the factual and procedural background defendant cites to support his argument.


Tri, a leading member of TRG known as “T-bone,” accompanied Tinh to the Ritz and stood nearby when defendant shot Tinh. He also was next to another TRG gang member, Tri Huynh, when Huynh removed the handgun from Tinh’s body, and later was seen running towards the alley holding a semiautomatic handgun behind his back.


Investigators interviewed Tri on five occasions. In three of the interviews, Tri admitted Tinh had a gun inside the Ritz, but his description of Tinh’s conduct varied. In one account, Tri stated Tinh displayed the weapon so that everyone could see it, including defendant. In a later pretrial interview, Tri claimed he prevented Tinh from pulling out the handgun and displaying the weapon.


In April 2003, based on the investigation surrounding Tinh’s homicide, the Orange County District Attorney charged Tri with possession of a firearm by a felon and active gang participation. By the time of defendant’s trial in July 2004, federal authorities had detained Tri on money laundering and narcotics charges.


Before federal authorities intervened, Tri and defendant’s prosecutor arrived at a tentative agreement to have Tri testify for the prosecution. Federal agents returned Tri to local custody for defendant’s trial. After further interviews, the prosecution decided not to call Tri as a witness because he gave several conflicting accounts of his observations. Defense counsel, however, wanted Tri’s testimony primarily to show that the victim brandished a handgun during the fight inside the nightclub.


Tri, represented by counsel, testified at a hearing held outside the jury’s presence. Tri acknowledged he was at the Ritz when the shooting occurred, but when asked if he had seen himself in the video, his lawyer intervened and requested to confer with Tri. When the hearing resumed, Tri announced that he did not want to testify further. The trial court permitted defendant’s counsel to continue, and counsel asked Tri whether he observed Tinh with a firearm inside the Ritz. Tri responded “No.” When counsel pressed Tri further, asking if Tinh displayed a handgun before the fight, Tri declared, “I don’t want to testify no more.” The court construed Tri’s refusal to answer questions as an invocation of his Fifth Amendment privilege against self‑incrimination and prohibited further questioning.


Defendant’s counsel accused the prosecutor of bad faith in failing to grant Tri immunity and requested the court provide judicial immunity to the witness. When the court declined, defendant moved for a mistrial, which the court also denied. Finally, the court denied defendant’s request to admit Tri’s statements to investigators for the truth of the matters asserted. Defendant introduced the substance of these statements while cross‑examining the prosecution’s gang expert, but the court instructed the jury the statements were received only for the limited purpose of testing the basis of the expert’s opinion.


Defendant raises several due process claims, and argues the trial court erred when it declined to admit Tri’s out-of-court statements for their truth. We discuss, in turn, each of defendant’s claims.


A. The Prosecutor Did Not Deny Defendant Due Process By Refusing to Grant


Tri Use Immunity


Defendant claims the prosecutor’s failure to offer Tri use immunity constituted “overreaching” and violated his due process right to a fair trial. He argues the prosecutor obtained “a tactical advantage through discriminatory use of immunity grants to suppress material, exculpatory, and non-cumulative facts from the jurors.” We disagree.


A prosecutor has a duty to administer the immunity power evenhandedly, with a view to ascertaining the truth, and not as a partisan engaged in a legal game. (People v. Hunter (1989) 49 Cal.3d 957, 975.) Due process is violated when a prosecutor selectively uses immunity grants “for the purpose of suppressing essential, noncumulative exculpatory evidence.” (Ibid.)


Here, the prosecutor’s immunity decision did not result in the suppression of noncumulative exculpatory evidence. Defendant’s counsel sought Tri’s testimony to demonstrate the victim had brandished a handgun during the melee inside the Ritz, and therefore defendant acted in self-defense because he feared Tinh would reach for the weapon he had displayed earlier during the fight inside. The trial court endured several lengthy discussions on how this evidence exonerated defendant of murder charges, but defendant rendered these discussions moot when he testified he could not identify the person brandishing the weapon during the brawl inside the club. Defendant may have had other reasons to be wary when he confronted the victim outside, but according to his own testimony, he shot Tinh because he feared the victim would reach for a handgun under the bulge in his waistband, not because he spotted Tinh displaying the weapon during the fight inside the Ritz. Because defendant did not identify Tinh as the person with the gun during the fight, Tri’s statements that the victim displayed a handgun inside the club do not qualify as exculpatory evidence.


Nor did the prosecutor exercise bad faith in deciding not to extend Tri use immunity. As the prosecutor explained, she decided against immunity because Tri provided several conflicting versions of the incident to investigators: “Well, Tri [] has always been a mixed bag. And what he wound up doing was lying and giving a different story to subsequent officers; every time he spoke to them, something new came up. [¶] And when he sat down with us at a proffer and told us he was giving a truthful statement, he said that he was an associate of TRG; he said that he had shot at the defendant in the alleyway one time, and it turns out, of course, that neither the gang expert [nor the physical evidence] supported that story . . . . [¶] And so he has been ever shifting in his story telling . . . . The only thing the People could have done was immunize this person and proffer this witness; then sanction this liar to come into court in exchange for a break on a state prison case, a second strike case . . . .” Defendant’s lawyer conceded Tri lied when he claimed he shot his semiautomatic handgun only once. Thus, the record demonstrates the prosecutor did not deny Tri use immunity to suppress exculpatory evidence or gain a tactical advantage.


B. The Prosecutor Did Not Threaten or Intimidate Tri into Asserting His Privilege


Against Self-Incrimination


Defendant complains the prosecutor intimidated Tri into not testifying and took “the laboring oar to create a finding of Fifth Amendment privilege for a third-party who was represented by silent counsel making no such claim or effort.” He asserts the “prosecutor’s objections and obstructionist activity were improper for this represented witness.”


Prosecutorial interference with the defendant’s right to call witnesses violates a defendant’s right to compel the attendance of witnesses under the Sixth Amendment and the right to due process under the Fourteenth Amendment. (People v. Lucas (1995) 12 Cal.4th 415, 456 (Lucas).) To prevail on this claim, defendant must establish three elements: (1) the prosecutor’s misconduct transformed a defense witness willing to testify into one unwilling to testify; (2) the prosecutor’s misconduct was a substantial cause in depriving defendant of the witness’s testimony; and (3) the testimony must be material to the defense. (Id. at p. 457.) Defendant fails to satisfy any of these elements.


The record does not show the prosecutor threatened or intimidated Tri into asserting his right against self-incrimination. At the hearing outside the jury’s presence, the record reflects Tri conferred with his lawyer immediately before declining to testify further. The prosecutor made no comment or argument concerning Tri’s decision other than to object to defense counsel making an offer of proof in front of the witness. Defendant complains that the prosecutor arranged for delivery of Tri’s court file containing the pending charges against him, but defendant’s lawyer did not object and the prosecutor’s action merely anticipated the trial court’s desire to examine the file. Nor did the prosecutor commit misconduct by objecting to judicial immunity for Tri. We decline to construe these actions as misconduct. Finally, as discussed above, Tri’s testimony was not material to the defense.


C. The Trial Court Correctly Concluded Tri Invoked His Right Against Self-


Incrimination When He Refused to Testify


Defendant contends the trial court erred in concluding Tri invoked his privilege against self-incrimination when he announced, “I don’t want to testify no more.” We disagree. Under the circumstances here, we do not see how the trial court could come to any other conclusion.


The privilege against self-incrimination is properly invoked whenever the witness’s answers “‘would furnish a link in the chain of evidence needed to prosecute’ the witness for a criminal offense.” (People v. Cudjo (1993) 6 Cal.4th 585, 617 (Cudjo).) To find an invocation of the privilege, “‘it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.’” (Ibid.) A trial court may compel the witness to answer only if it “clearly appears to the court” the proposed testimony “cannot possibly have a tendency to incriminate the person claiming the privilege.” (Evid. Code, § 404.)


Here, the court reasonably concluded the witness invoked his Fifth Amendment privilege not to testify. Considering the setting, with Tri represented by counsel, no other conclusion is warranted. And it did not “clearly appear” Tri’s testimony about the brawl inside the Ritz would not tend to incriminate him. His association with Tinh and other TRG gang members tended to show he was an active gang participant. We discern no error.


D. The Trial Court Did Not Err in Refusing to Grant Judicial Immunity


Defendant contends the trial court abused its discretion in declining to grant Tri judicial immunity, and complains the court mistakenly believed it lacked the power to take this action on its own. Defendant is wrong on both counts.


Nothing in the record supports defendant’s claim the trial court misunderstood the extent of its powers. The veteran trial judge was amply familiar with the law restricting the use of judicial immunity, and denied defendant’s request based on Lucas, supra, 12 Cal.4th at pp. 459-461. There, the California Supreme Court observed that “‘the vast majority of cases, in this state and in other jurisdictions, reject the notion that a trial court has “inherent power” to confer immunity on a witness called by the defense.’” (Id. at p. 460.) Lucas noted only one jurisdiction had concluded the judiciary could confer immunity to a witness but only if (1) the proposed testimony is “‘clearly exculpatory’”; (2) the testimony is essential; and (3) there is no strong governmental interest weighing against an immunity grant. (Ibid.) Assuming the trial court could authorize immunity under the limited test above, defendant failed to make the requisite showing. As discussed above, Tri’s proposed testimony was not clearly exculpatory or essential. Moreover, there existed a strong governmental interest against an immunity grant. Tri faced charges of being an active gang participant based on the events surrounding the homicide. Had Tri received use immunity, the district attorney would have been required to prove the evidence offered at Tri’s trial was not derived from Tri’s immunized testimony at defendant’s trial. (People v. Stewart (2004) 33 Cal.4th 425, 469.) To avoid jeopardizing the case against Tri, the prosecution would have narrowed the scope of its cross-examination to prevent Tri from later claiming the prosecution’s case against him was tainted. (Id. at p. 470.) Accordingly, we conclude the trial court did not err in rejecting defendant’s judicial immunity request. Defendant also moved for a mistrial based on the court’s rulings. Because none of defendant’s claims concerning immunity, prosecutorial misconduct and Tri’s assertion of his right against self-incrimination have merit, the trial court correctly denied his mistrial motion.


E. The Trial Court Did Not Err in Prohibiting Defendant from Commenting on the Prosecution’s Failure to Call Tri as a Witness


Defendant next complains the trial court should have permitted comment on the prosecution’s failure to call Tri as a logical witness. He acknowledges that counsel may not comment on a witness’s invocation of the right against self-incrimination (People v. Ford (1988) 45 Cal.3d 431, 444), but distinguishes this rule because “the defense here did not seek to comment on the witness, but rather sought to comment on the fact the prosecution did not call a logical witness who was within its power to produce.” Not so. As we discussed earlier, Tri invoked his Fifth Amendment right and the prosecution did not commit misconduct when it declined to offer Tri use immunity. Defendant’s contention is therefore without merit.


F. The Trial Court Did Not Err in Excluding Tri’s Hearsay Statements


Defendant contends that Tri’s statements concerning Tinh’s conduct inside the Ritz qualified as a declaration against interest under Evidence Code section 1230, and therefore should have been admitted as an exception to the hearsay rule. We disagree.


Evidence Code section 1230 provides that “[e]vidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, . . . so far subjected him to the risk of . . . criminal liability . . . or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.” The proponent of this evidence must show the declarant is unavailable, the declaration was against the declarant’s penal or social interest when made, and the declaration carried sufficient reliability to warrant admission. (People v. Duarte (2000) 24 Cal.4th 603, 610-611.) We review the trial court’s ruling under an abuse of discretion standard. (People v. Lawley (2002) 27 Cal.4th 102, 153.)


Here, Tri’s statements that he persuaded Tinh to put his gun away during the fight at the Ritz did not qualify as a declaration against interest. No reasonable person would conclude the statement exposed the declarant to criminal liability. Nor would the statement subject Tri to ridicule or disgrace with his gang cohorts because they could conclude Tri based his statement on gangland tactics rather than a desire to avoid conflict.


Defendant argues that if Tri’s statement supported the invocation of his Fifth Amendment rights, it must also qualify as a declaration against interest. Defendant is mistaken. As discussed earlier, a witness may invoke his Fifth Amendment rights if testifying would furnish a link in a chain of incriminating evidence or if the statement would tend to incriminate the witness. In other words, the privilege protects apparently innocuous statements that might become incriminating when considered with other evidence. (Cudjo, supra, 6 Cal.4th at p. 617.) In contrast, the proponent of a declaration against interest must establish the statement was against the declarant’s penal or social interest to qualify as a hearsay exception under Evidence Code section 1230. Defendant failed to meet this burden.


Defendant also argues the statement was against Tri’s interest because it jeopardized his tentative agreement for immunity and lenient consideration in his pending case because his observation Tinh had a handgun made his testimony less appealing for the prosecution. Essentially, defendant argues Tri’s statement should have been admitted because it was reliable. The fact remains Tri’s statement was not a declaration against his interest. The trial court did not abuse its discretion in ruling Tri’s statements inadmissible.


III


Character Evidence of Victim


Defendant contends the trial court erroneously excluded evidence of Tinh’s aggressive character on a prior occasion similar to the incident at the Ritz. We disagree.


Evidence of the victim’s violent character is relevant to show defendant’s apprehension of danger. Even if defendant was unaware of the victim’s violent nature, the evidence nevertheless tends to show the victim was probably the aggressor. (People v. Brophy (1954) 122 Cal.App.2d 638, 647.) Evidence Code section 1103 expanded this rule to apply to the victim of any crime. The section provides the defendant may offer evidence “of the character or a trait of character . . . of the victim of the crime for which the defendant is being prosecuted” to prove “conduct of the victim in conformity with the character or trait of character.” (Evid. Code, § 1103, subd. (a)(1).) The trial court has broad discretion in determining the relevancy of the evidence and whether to exclude it under Evidence Code section 352. (People v. Stitely (2005) 35 Cal.4th 514, 547-548.)


Defendant relies on evidence showing that Tinh attempted to aid his friends embroiled in a fistfight at a nightclub. At a hearing outside the jury’s presence, Ritz security supervisor Evaz testified that approximately two years before the incident at the Ritz, several of defendant’s friends exchanged blows with another group of men in an altercation at the Club Can in Garden Grove. Tinh acted as if would join the fray, but stopped when a security guard placed a hand on him.


The trial court rejected this evidence, observing: “I think this incident . . . really doesn’t describe any type of violence. I think its probative value is minimum, outweighed by time consumption and prejudicial value. . . . [¶] If he had been in a fight, if he was throwing punches, I think that fits 1103. When I look at the relevance as it applies to this case, I have been watching the video, I think it hasn’t relevance and minimal probative value.”


The evidence was not relevant. Evidence the victim refrained from joining a fight to aid his friends does not demonstrate the victim’s violent character and therefore acted as the aggressor when confronted by defendant. Even if marginally relevant, the slight probative value of the evidence was outweighed by the risk it would confuse the issues and unduly consume trial time. In sum, the trial court did not abuse its discretion.


IV


Jury Instructions


A. No Error Occurred When the Trial Court Instructed on Imperfect Self-Defense Using CALJIC No. 5.17


The trial court instructed the jury on imperfect self-defense as defined in CALJIC No. 5.17. This instruction provides that a homicide committed in the actual but unreasonable belief in the need to defend against imminent peril to life or great bodily injury is voluntary manslaughter rather than murder. The court defined imminent peril or danger as one that is apparent, present, immediate and must be instantly dealt with, or must so appear at the time to the slayer. The last paragraph provided the following: “However, this principle is not available, and malice aforethought is not negated, if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversary’s use of force.”[3]


Defendant objected to the last paragraph, arguing there was no evidence that the victim attempted to use force against defendant. The trial court overruled defendant’s objection, explaining that because defendant approached Tinh armed with a gun and displayed an intent to harm, “there [was] some evidence that caused . . . [¶] . . . Tinh [] to pull [out] a weapon.” Defendant varies the same theme on appeal, arguing no evidence supported the notion defendant took hostile acts toward the victim.


The trial court found that the jury reasonably could infer that the victim’s hand motion was an initial attempt to respond aggressively to what the victim perceived as a possible assault stemming from defendant’s angry and belligerent demeanor. In other words, defendant’s wrongful conduct provoked Tinh and therefore created the circumstances defendant later claimed justified his use of force. (See In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1 [“wrongful conduct” includes acts initiating a physical assault].) The jury also could have found the last paragraph of CALJIC No. 5.17 inapplicable. The court informed the jury as follows: “Whether some instructions apply will depend upon what you find to be the facts. Disregard any instruction which applies to facts determined by you not to exist.” Thus, defendant fails to demonstrate that instructing the jury with the last paragraph of CALJIC No. 5.17 denied him a fair trial.


Finally, defendant argues the terms “wrongful,” “unlawful” and “legally justified” found in CALJIC No. 5.17’s last paragraph are vague and undefined. Although he concedes the instruction correctly states the law (see People v. Hardin (2000) 85 Cal.App.4th 625, 635), he argues the trial court should not have given the instruction because “[t]he lay juror could not apply any sort of meaning” to these terms. But defendant did not seek to clarify or define these terms. It is “defendant’s obligation to request any clarifying or amplifying instruction . . . .” (People v. Kimble (1988) 44 Cal.3d 488, 503; People v. Lang (1989) 49 Cal.3d 991, 1024 [defendant may not object on appeal that an instruction correctly stating the law and responsive to the evidence was too general or incomplete unless defendant requested clarifying language].) Having failed to do so, defendant cannot now raise the issue. The trial court did not err when it instructed the jury on the last paragraph in CALJIC No. 5.17.


B. No Substantial Evidence Supported Lesser Included Offense Instructions on Involuntary Manslaughter


Defendant contends the court should have instructed sua sponte on involuntary manslaughter as a lesser included offense to murder under multiple theories: misdemeanor manslaughter, criminal negligence, and an unintentional killing in the exercise of imperfect self-defense. We disagree.


Involuntary manslaughter exists where there is an unlawful killing of a human being without malice (1) in the commission of an unlawful act, not amounting to a felony or (2) in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. (§ 192, subd. (b).) Involuntary manslaughter generally is considered a lesser included offense to murder (People v. Prettyman (1996) 14 Cal.4th 248, 274), but the trial court has no sua sponte duty to instruct on lesser included offenses that are not supported by substantial evidence. (People v. Breverman (1998) 19 Cal.4th 142, 162.)


Relying on People v. Wilson (1967) 66 Cal.2d 749 (Wilson), defendant contends the court erred in refusing to instruct the jury on misdemeanor manslaughter on the theory he brandished a deadly weapon (§ 417). In Wilson, the defendant denied intending to assault the victims, testifying he entered an apartment with a shotgun intending only to scare the occupants. Based on this evidence, the Supreme Court concluded defendant was entitled to involuntary manslaughter instructions because the jury could have found the killings occurred without malice while defendant brandished the weapon, and therefore was an unlawful act not amounting to a felony. (Wilson, supra, at p. 758.)


Here, defendant presented no evidence he intended merely to brandish a firearm. Unlike the defendant in Wilson, there was no evidence defendant intended to scare Tinh; rather, it was undisputed he intended to shoot him.


Defendant also cites People v. Penny (1955) 44 Cal.2d 861 to argue the court should have instructed on manslaughter as a criminally negligent act: “[Defendant] was seeking to escape a terrorist street gang which appeared to him to be moving in to beat him. He was confronted by [Tinh] who made what [defendant] feared to be a menacing gesture. He knowingly fired at [Tinh’s] body, without an intent to kill, to deter harm to his person. Any objective view of shooting a person in the body must conclude the fatal consequence of the negligent act could reasonably have been foreseen in the sense of negligence law.”


Defendant’s argument is based on the assumption he acted negligently in shooting the victim several times. But no evidence supports this assumption. Defendant did not testify he negligently mishandled the firearm. (See, e.g., People v. Carmen (1951) 36 Cal.2d 768, 776 [defendant, carrying gun with cartridge in firing chamber, pointed forward, accidentally discharged the weapon when he stumbled approaching occupied vehicle]; People v. Clark (1982) 130 Cal.App.3d 371, 382-383.) Defendant intentionally fired three times directly into Tinh. Consequently, there was no factual basis for negligent manslaughter instructions.


Finally, defendant argues the court should have instructed on negligent manslaughter on a theory of imperfect self-defense without intent to kill. In People v. Blakeley (2000) 23 Cal.4th 82, the Supreme Court held that a defendant commits voluntary manslaughter when acting with conscious disregard for life and the knowledge that the conduct is life-endangering, unintentionally but unlawfully kills while having an unreasonable but good faith belief in the need to act in self-defense. (Id. at p. 85.) The majority, responding to a dissent, stated it had no “quarrel with th[e] view” that “a defendant who kills in unreasonable self-defense may sometimes be guilty of involuntary manslaughter.” (Id. at p. 91, italics added.) In other words, involuntary manslaughter may apply when a defendant kills in unreasonable self-defense, but lacks an intent to kill or conscious disregard for life. Defendant argues his conduct falls within this exception. We disagree.


Defendant fired three gunshots into the victim’s chest at close range, demonstrating an intent to kill or conscious disregard of life. True, defendant testified he did not intend to kill, but his hope the victim would survive does not warrant an involuntary manslaughter instruction. Indeed, for murder based on implied malice, the prosecution need not prove defendant intended his life-endangering act would result in death. Rather, the prosecution must prove defendant deliberately performed an intentional act defendant knew was life endangering. (See CALJIC No. 8.31.) Here, defendant offered no evidence he was unaware that shooting the victim three times, once in the head, was an act dangerous to human life. Accordingly, no evidence supported an involuntary manslaughter instruction.


C. Providing the Jury with the Mutual Combat Instruction Does Not Mandate Reversal


The trial court, on its own motion, instructed the jury on mutual combat per CALJIC No. 5.56. The court instructed as follows: “The right of self-defense is only available to a person who engages in mutual combat if he has done all of the following: [h]e has actually tried, in good faith, to refuse to continue fighting; [¶] . . . [h]e has clearly informed his opponent that he wants to stop fighting; [¶] . . . [h]e has clearly informed his opponent that he has stopped fighting; and [¶] . . . [h]e has given his opponent the opportunity to stop fighting. After he has done these four things, he has the right to self-defense if his opponent continues to fight.” We agree with defendant the instruction did not apply, but conclude any conceivable error was harmless.


In People v. Quach (2004) 116 Cal.App.4th 294 (Quach), a panel of this court held this version of CALJIC No. 5.56 (since amended), “transmogrified the requirement of a good faith endeavor to decline further combat into a categorical denial of the defense to anyone who has not succeeded in clearly informing his opponent that he is no longer fighting and wishes to stop. . . . [w]e cannot find such a rule in Penal Code section 197.” (Id. at p. 301.) Quach also faulted the instruction for failing to mention that a victim may not respond to a simple assault with deadly or excessive force, and if he does the defendant may respond with like force. And if the victim’s counter assault is so sudden and perilous there is no opportunity to decline “or to make known to his adversary a willingness to decline the strife, if he cannot retreat with safety, then as the greater wrong of the deadly assault is upon his opponent, he would be justified in slaying, forthwith, in self-defense.” (People v. Hecker (1895) 109 Cal. 451, 463- 464; see Quach, supra, at pp. 301-302.)


CALJIC No. 5.56 expressly applies only to “a person who engages in mutual combat.” The instruction contemplates a non-deadly fight that escalates when the defendant’s adversary resorts to deadly force. Defendant and his victim exchanged words, but not blows, before defendant shot the victim. Thus, the instruction did not apply because there was no evidence defendant and the victim engaged in mutual combat.


Reversal is not required, however. The court instructed the jury to “disregard any instruction which applies to facts determined by you not to exist.” We presume the jurors followed the court’s instructions (People v. Sanchez (2001) 26 Cal.4th 834, 852) and did not apply CALJIC No. 5.56 because no evidence showed defendant and the victim engaged in mutual combat. Where the court gives an irrelevant instruction, the error “is usually harmless, having little or no effect ‘other than to add to the bulk of the charge.’” (People v. Rollo (1977) 20 Cal.3d 109, 123.) Any error in providing CALJIC No. 5.56 was harmless by any standard.


D. The Court Properly Instructed that Voluntary Manslaughter Was a Lesser Offense to Murder


Finally, defendant asserts the written instruction defining voluntary manslaughter contained an error. On the version of CALJIC No. 8.40 provided, the court handwrote the first sentence: “In the lesser included offense to count [?] namely voluntary manslaughter . . . .” Defendant interprets the “?” as a “2.” Count 2 was the attempted murder of Tommy Tran. He asserts: “The emphasized number is a handwritten number that appears to be a ‘2’ and should be a ‘1.’ This may simply be careless penmanship, but upon first viewing and then later examination it appears to be a ‘2’ with a loop on the bottom.” He complains the jury was thus not instructed that voluntary manslaughter was a lesser included offense of the murder of Tinh charged in count 1.


The point lacks merit; any purported ambiguity would have been quickly resolved by the jury. The reporter’s transcript reflects that the court read the instruction, “[i]n the lesser included offense to count I.” (Italics added.) The written instruction referred to one who “unlawfully kills another human being” (italics added), not one who unlawfully attempts to kill. The court provided a separate instruction on attempted voluntary manslaughter for count 2: “In the lesser included offense to count 2 namely attempt voluntary manslaughter.” There was no indication the jury was confused. We discern no error.


V


Disposition


Judgment affirmed.


ARONSON, J.


WE CONCUR:


SILLS, P. J.


FYBEL, J.


[1] The prosecution charged defendant with attempted murder of Tommy Tran, a victim of a gunshot wound found lying in the alleyway. The jury acquitted defendant of this charge.


[2] The jury initially deadlocked on the murder count. The court provided CALJIC No. 8.71 (doubt as to degree compels second degree murder verdict) at the request of the prosecution, and the jury subsequently returned its verdict.


[3] The complete instruction reads: “A person who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, kills unlawfully but does not harbor malice aforethought and is not guilty of murder. [¶] This would be so even though a reasonable person in the same situation seeing and knowing the same facts would not have had the same belief. [¶] Such an actual but unreasonable belief is not a defense to the crime of voluntary . . . manslaughter. [¶] As used in this instruction, an ‘imminent’ peril or danger means one that is apparent, present, immediate, and must be instantly dealt with or must so appear at the time to the slayer. [¶] However, this principle is not available, and malice aforethought is not negated if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversary’s use of force.”

Karen C. v. Sup. Ct.

Filed 11/30/05 Karen C. v. Sup. Ct. CA5


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


FIFTH APPELLATE DISTRICT








KAREN C.,


Petitioner,


v.


THE SUPERIOR COURT OF MARIPOSA COUNTY,


Respondent,


MARIPOSA COUNTY DEPARTMENT OF HUMAN SERVICES,


Real Party In Interest.




F048917



(Super. Ct. Nos. JV1992A,


JV1992B, JV1992C)




O P I N I O N



THE COURT*


ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Wayne R. Parrish, Judge.


Deborah A. Bennett, for Petitioner.


No appearance for Respondent.


Allen, Polgar, Proietti & Fagalde and Michael A. Fagalde, for Real Party In Interest.


-ooOoo-


This extraordinary writ petition arises from a contested 12-month review hearing at which the juvenile court terminated petitioner’s reunification services and set a Welfare and Institutions Code section 366.26 hearing[1] as to her three small children. We will deny the petition.


STATEMENT OF THE CASE AND FACTS


In June 2004, the Mariposa County Department of Human Services (department) removed petitioner’s then four-year-old and three-year-old sons and 11-month-old daughter from what would later be described as one of the worst “dirty house” cases on record in the county. The home smelled of urine and mold throughout. The rooms were cluttered and dirty. The beds had no linen and were inaccessible. Worse still, the carpet was soaked with water and sewage from the toilets which were backed up. There was drug paraphernalia, pornography and numerous small objects accessible to the children. Deputy sheriffs arrested petitioner and the children’s father, R., for child endangerment and drug charges and the Public Health Department declared the home uninhabitable.


The department filed a dependency petition on the children’s behalf and the juvenile court ordered them detained. At the jurisdictional hearing, the court found the allegations true and, at the department’s recommendation, ordered both parents to complete psychological evaluations to determine if they were capable of benefiting from reunification services. The court set the dispositional hearing for August 30, 2004.


At the dispositional hearing on August 30, 2004, the court ordered a plan of reunification for petitioner and R. Petitioner’s case plan required her to maintain a clean and safe home and complete a parenting program. Her case plan also required her to participate in outpatient therapy to address anger management and any other services recommended by the therapists. The court also set a three-month interim review hearing on October 25, 2004, and a six-month review hearing on February 7, 2005.


Within days after the dispositional hearing, the department received the results of the psychological evaluations. The psychologist diagnosed R. with an antisocial personality disorder and petitioner with a dependent personality disorder, which the psychologist concluded rendered them unable to care for their children. However, while the psychologist could not recommend any services that could restore R.’s ability to care for his children, the psychologist suggested that petitioner could benefit from a residential program that offered domestic violence counseling and substance abuse treatment. The psychologist specifically stated:


“It is my recommendation that [petitioner] should be assessed by [an agency] that provides domestic violence counseling and treatment. If she qualifies for and accepts residential services that include a substance abuse component, she can begin a course of treatment that could help her, within a period of six months, toward independent thinking and decision making in the best interest of her children.


“If she does not qualify for or does not accept residential services she will be left struggling with depressive, hypomanic and oppositional characteristics, conduct problems, and methamphetamine dependency, in the context of a dependent relationship with a dysfunctional man, In such a case, no services could restore her ability to control her children adequately within a period of six months.”


After receiving the psychologist’s report, the department referred petitioner for outpatient therapy. The department also reported the psychologist’s conclusions and recommendations in its interim report and recommended the court continue the existing plan in effect.


On October 25, 2004, the court conducted the three-month interim review hearing. The parties, including counsel for petitioner, submitted on the department’s recommendation to retain the existing reunification plan in effect. The court found petitioner was provided reasonable services and retained the six-month review hearing on calendar for February 7, 2005.


The six-month review hearing was continued several times and conducted on March 14, 2005. In the interim, the department reported that petitioner and R. continued to use drugs and neither one sought therapy for their personality disorders. They separated and were in the process of divorce and petitioner had a live-in boyfriend who was on probation for a then-recent incident of domestic violence. R. was awaiting sentencing in a criminal matter and petitioner and R.’s two sons were exhibiting signs of severe emotional damage. In its six-month status review, the department recommended the court terminate reunification services for both parents.


At the six-month review hearing on March 14, 2005, petitioner’s attorney informed the court that petitioner began drug treatment in December 2004 under the auspices of the drug court and had since remained drug-free and compliant with the program requirements. In light of petitioner’s progress, her attorney asked the court to continue her services.


County counsel argued the court should terminate petitioner’s services, citing the psychologist’s recommendation she participate in a residential program and her failure to seek any mental health treatment. Petitioner’s attorney countered that petitioner demonstrated success in an outpatient treatment program, proving that she did not need residential treatment.


After argument, the court found petitioner was provided reasonable services and ordered an additional six months of services for her. The court terminated reunification services for R. The court also ordered petitioner to complete a mental health assessment that next week. The court set the 12-month review hearing for July 25, 2005.


Over the next six months, petitioner continued to progress in drug treatment and her prognosis was considered good. However, she still had not scheduled an appointment for a mental health assessment. In addition, her inability to control the children during visitation continued to expose them to danger. On one occasion, the boys found some matches and were found in a corner trying to light them. In its 12-month status review, the department recommended the court terminate petitioner’s services and set the matter for permanency planning.


Petitioner challenged the department’s recommendation and a contested 12-month review hearing was conducted on September 12, 2005. It was undisputed at trial that petitioner made progress in drug treatment. The issue was whether the department failed to provide reasonable services by not referring petitioner for residential treatment as recommended by the psychologist. The caseworker testified that she referred petitioner many times for outpatient therapy but only a therapist could refer petitioner for residential treatment.


Petitioner testified she did not pursue therapy during the first six months of services because she was using drugs. After she was court-ordered to complete a psychological assessment at the six-month review hearing, she made several unsuccessful attempts to schedule an intake assessment. Petitioner advised the caseworker of her difficulty scheduling the assessment but testified that the caseworker did not intervene and petitioner did not make any further efforts to pursue therapy on her own. She stated she was involved in drug court and did not have time to participate in a residential program.


Petitioner also admitted knowing that her boyfriend had a criminal record and served a prison sentence. She was also aware that he was convicted in October 2004 and was on probation for battering his ex-girlfriend. She stated his circumstances concerned her but that he had never attempted to strike her.


After argument, the court found petitioner was provided reasonable services. The court commended petitioner on her recovery but concluded that she had not made progress with respect to her mental health problems. Consequently, the court terminated reunification services and set a section 366.26 hearing for December 19, 2005. This petition ensued.


DISCUSSION


Petitioner argues, as she did at trial, that the department should have modified her case plan to include residential treatment as recommended by the psychologist. Since it did not, she argues, she was denied reasonable services and the juvenile court erred in terminating her services. We conclude she waived the issue for our review.


All orders subsequent to the dispositional order in dependency proceedings are directly appealable. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150.) Unappealed postdisposition orders are final and binding. (Ibid.)


In this case, the time to argue that reasonable services for petitioner must include residential treatment was either at the three-month review hearing on October 25, 2004, or by direct appeal from the court’s reasonable services finding made at that hearing. However, petitioner did not do either. In fact, her attorney submitted on the department’s recommendation to retain the original case plan in effect. In so doing, her attorney assented to the terms of the plan on petitioner’s behalf and waived her right to challenge the reasonableness of the plan on appeal.


To the extent trial counsel was arguably ineffective for not arguing for a modified plan either at the three-month review hearing or by filing a section 388 petition,[2] we find no evidence of prejudicial effect. A petitioner asserting ineffectiveness of counsel must prove trial counsel’s performance was deficient, resulting in prejudicial error. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668.) We need not evaluate counsel’s performance if petitioner fails to prove prejudicial error; i.e., absent counsel’s errors, there is a reasonable probability of a more favorable outcome. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1180.) Therefore, to prevail on a claim of ineffective assistance of counsel, petitioner would have to show that, but for counsel’s failure to argue she needed residential treatment, the court would have modified the case plan to include it and petitioner would have benefited from the treatment and reunified with her children.


Here, there is no evidence that the court would have modified petitioner’s case plan based on the psychologist’s recommendation. Rather, as the court stated at the 12-month review hearing, it was not compelled to follow the psychologist’s recommendations. Rather, the court considered the psychological report a tool for use in determining what services to provide. Moreover, there is no evidence that petitioner would have entered an inpatient program. She was already involved in a live-in romantic relationship and she testified at trial that she did not have time for a residential program. Finally, there is no evidence petitioner would have benefited from a residential program. Apart from her drug abuse, her dependent personality disorder posed the most significant danger to her children yet she refused to seek therapy for it. As a result, she traded one abusive relationship for another potentially abusive relationship and she still lacked the skills to care for and protect her children. Therefore, any claim of ineffective assistance of counsel would fail for lack of prejudice. Based on the foregoing, we find no error on this record.


DISPOSITION


The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.


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*Before Dibiaso, Acting P.J., Harris, J., and Cornell, J.


[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.


[2] Section 388 allows the parent of a child adjudged a dependent of the juvenile court to petition the court to change, modify or set aside any order upon grounds of change of circumstance or new evidence.

Lonnie S. v. Sup. Ct.

Filed 11/30/05 Lonnie S. v. Sup. Ct. CA5


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


FIFTH APPELLATE DISTRICT








LONNIE S.,


Petitioner,


v.


THE SUPERIOR COURT OF STANISLAUS COUNTY,


Respondent,


STANISLAUS COUNTY COMMUNITY SERVICES AGENCY,


Real Party In Interest.




F048901



(Super. Ct. No. JUV507961)




O P I N I O N



THE COURT*


ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Nancy B. Williamsen, Commissioner.


Lonnie S., in pro. per., for Petitioner.


No appearance for Respondent.


Michael H. Krausnick, County Counsel, and Linda S. Macy, Deputy County Counsel, for Plaintiff and Respondent.


-ooOoo-


Petitioner, in pro. per., seeks an extraordinary writ (Cal. Rules of Court, rule 38 (rule)) to vacate the orders of the juvenile court terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing[1] as to his infant son A. We conclude his petition fails to comport with the procedural requirements of rule 38.1(a). Accordingly, we will dismiss the petition as facially inadequate.


STATEMENT OF THE CASE AND FACTS


In December 2004, then one-month-old A. was released to the protective custody of the Stanislaus County Community Services Agency (agency) after he and his mother R. tested positive for various illicit drugs. At the time, petitioner was in prison.


The agency filed a dependency petition on A.’s behalf, which the juvenile court sustained. The court found petitioner to be A.’s biological father but denied petitioner reunification services. The court ordered services for R. and set the six-month review hearing for September 12, 2005. The agency placed A. in foster care.


Over the next six months, R. made no progress in her case plan. In addition, she did not visit A. at all despite opportunities to do so. Meanwhile, A. was in a loving, committed foster home with caretakers who wanted to adopt him.


The uncontested six-month review hearing was conducted on September 12, 2005. Petitioner and R. appeared through counsel who offered no evidence. The court terminated R.’s reunification services and set the section 366.26 hearing for December 19, 2005. This petition ensued.


DISCUSSION


Petitioner does not allege the juvenile court error. He merely informs this court that he will be released from custody by March of 2006 and asks that A. be released to his and his wife’s custody at that time.


Rule 38.1(a) specifies that the writ petition must set forth a summary of the grounds for the petition and be accompanied by points and authorities. (Rule 38.1(a)(1)(D) & (a)(3).) The points and authorities must inform the reviewing court of the issue(s) presented, reference the factual support for them in the record and offer argument and authorities that assist the court in resolving the issues. (Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 583.) While this court will liberally construe a writ petition in favor of its sufficiency, the petition must contain an assertion of juvenile court error.


In this case, petitioner fails to assert any error on the part of the juvenile court and we will not independently review the record for possible errors. (In re Sade C. (1996) 13 Cal.4th 952, 994.) Accordingly, we must dismiss the petition as facially inadequate for appellate review.


DISPOSITION


The petition for extraordinary writ is dismissed. This opinion is final forthwith as to this court.


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Vista Lawyers are available and standing by to help you.


*Before Vartabedian, Acting P.J., Wiseman, J., and Gomes, J.


[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

P. v. Cardiel

Filed 11/30/05 P. v. Cardiel CA5


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


FIFTH APPELLATE DISTRICT








THE PEOPLE,


Plaintiff and Respondent,


v.


ALEJANDRO GANDARA CARDIEL,


Defendant and Appellant.




F047637



(Super. Ct. No. BF108368A)




O P I N I O N



THE COURT*


APPEAL from a judgment of the Superior Court of Kern County. Charles P. McNutt, Judge.


Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant.


Bill Locker, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, and Wanda Hill Rouzan, Deputy Attorney General, for Plaintiff and Respondent.


-ooOoo-


Following the denial of his motion to suppress evidence (Pen. Code, § 1538.5), appellant Alejandro Cardiel, pursuant to a plea agreement, pled no contest to possession of methamphetamine for purposes of sale (Health & Saf. Code, § 11378). The court imposed the 16-month lower term.


On appeal, appellant contends the court erred in denying his suppression motion. We will affirm.


FACTUAL BACKGROUND


On November 3, 2004, police in Bakersfield obtained and executed a search warrant authorizing search of appellant’s person, “the residence at 239 Irene Street” in Bakersfield (Irene Street residence) and two motor vehicles. The warrant was based on an affidavit executed on November 2, 2004, by City of Bakersfield Police Detective A. Ronquillo.


In his affidavit, Detective Ronquillo stated that within 10 days prior to its execution, he was contacted by a “confidential and reliable informant” (CRI), who told the detective the following.[1] “[H]e/she[[2]] was capable of purchasing methamphetamine,” and had in the past purchased methamphetamine, from a Hispanic male known to the CRI as “Al” who “resid[ed] at an unknown address, possibly in the Bakersfield area.” Al “drives two vehicles he uses to deliver methamphetamine: a newer, white, SUV type vehicle, and an older, brown over black Jeep CJ5.” The CRI provided a physical description of Al.


Detective Ronquillo provided Al with “city funds” for a controlled buy, and thereafter the CRI placed a telephone call and “ma[de] arrangements for the delivery and purchase of methamphetamine at a prearranged location.” Detective Ronquillo “remained in the area to assist in surveillance” and observed a subject who matched the general description provided by the CRI “arrive at the prearranged location in a newer, white, SUV type vehicle, and meet with the CRI.” During this meeting, the CRI obtained from the subject a substance which was later tested and determined to contain methamphetamine.


After the controlled buy, Detective Ronquillo and “surveillance units” followed the subject whom the detective suspected was Al. The subject “parked his vehicle in front of the residence” at 1018 Jefferson Street (“Jefferson Street residence”) and entered the residence. “A brown cloth-top over black, Jeep, CJ5” (Jeep) was parked in front of the Jefferson Street residence.


California Department of Motor Vehicle (DMV) records revealed the following. The white vehicle the subject was seen driving, a 2002 Chevrolet Trail Blazer (Chevrolet), was registered to Juanita O. Gonzalez or Alejandro G. Cardiel “at 609 Decatur Street, Bakersfield.” The Jeep was registered to Alejandro Cardiel or Jose Cardiel at the same address. Alejandro Cardiel listed his most recent address as 7000 Ming Avenue, Apartment C, in Bakersfield.


The CRI identified a photograph of Alejandro Cardiel, obtained from the DMV, as that of the man he knew as Al from whom he purchased methamphetamine at the police-arranged transaction.


Within the 10 days prior to the execution of the affidavit, Detective Ronquillo and other police detectives conducted surveillance of the Chevrolet and the Jeep, and during that time observed appellant “driving the Chevrolet . . . between the Jefferson Street residence and the residence at 239 Irene Street in Bakersfield.”


Within the five days prior to the execution of the affidavit, Detective Ronquillo and other police detectives conducted surveillance of the Jefferson Street residence, and observed the following. The residence “appeared at that time to be vacant with a ‘For Rent’ sign on the front gate.” The detectives “also found [the Chevrolet and the Jeep] parked at the residence at 239 Irene Street, during the late evening and early morning hours,” and they “observ[ed] [appellant] freely entering and exiting the residence, leading [Detective Ronquillo] to believe ALEJANDRO CARDIEL had moved to this residence.” “[O]n at least two occasions,” the detectives saw appellant “leave the residence at 239 Irene Street, enter the [Jeep] and drive away from the residence” and engage in activities known to Detective Ronquillo to be “consistent with narcotic sales,” viz., driving to various residences, entering, remaining a short time and leaving, making contact with persons in “open, public places, contacting these subjects for a short period of time, and then terminating his contact with them.”


Detective Ronquillo stated: “Based on the facts contained in this Statement of Probable Cause and my training and experience, I believe the previously described evidence is indicative of methamphetamine trafficking and currency derived from methamphetamine sales will be found in the locations . . . to be searched. [¶] It is also my belief that a search of the premises . . . will locate the previously described items and will identify those parties in control of the premises . . . in which illegal controlled substances may be found.”


Detective Ronquillo has been a police officer in Bakersfield for the past 27 years. The affidavit detailed his training and experience relating to detecting drug trafficking.


DISCUSSION


Appellant contends the affidavit submitted in support of the search warrant failed to establish probable cause to search the Irene Street residence, and therefore the court erred in denying the suppression motion.


“It is a basic principle of the Fourth Amendment that for a search warrant to issue there must be probable cause.” (U.S. v. Laughton (6th Cir. 2005) 409 F.3d 744, 747.) “Probable cause exists when the information on which the warrant is based is such that a reasonable person would believe that what is being sought will be found in the location to be searched.” (People v. Stanley (1999) 72 Cal.App.4th 1547, 1554.) In determining whether an affidavit is supported by probable cause, the magistrate must make a “practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.” (Illinois v. Gates (1983) 462 U.S. 213, 238.)


“The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific ‘things’ to be searched for and seized are located on the property to which entry is sought.” (Zurcher v. Stanford Daily (1978) 436 U.S. 547, 556, fn. omitted.) Thus, “[t]he affidavit must establish a nexus between the criminal activities and the place to be searched.” (People v. Garcia (2003) 111 Cal.App.4th 715, 721.) “ ‘[A]n affidavit . . . must contain facts demonstrating a substantial probability that [contraband or] evidence of a crime will be located in a particular place. [Citations.] A statement that the affiant “ ‘has cause to suspect and does believe’ ” that the evidence is located at the targeted premises is insufficient.’ ” (Ibid.) “ ‘The opinions of an experienced officer may legitimately be considered by the magistrate in making the probable cause determination.’ [Citation.] However, an affidavit based on mere suspicion or belief, or stating a conclusion with no supporting facts, is wholly insufficient.” (Ibid.) “ ‘A statement that the affiant “ ‘has cause to suspect and does believe’ ” that the evidence is located at the targeted premises is insufficient.’ ” (Ibid.) “ ‘The sufficiency of the affidavit must be evaluated in light of the totality of the circumstances.’ ” (Id. at p. 720.)


“The question facing a reviewing court asked to determine whether probable cause supported the issuance of the warrant is whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing.” (People v. Kraft (2000) 23 Cal.4th 978, 1040. “ ‘Doubtful or marginal cases are resolved in favor of upholding the warrant. [Citations.] The burden is on [the defendant] to establish invalidity of [a] search warrant[ ].’ [Citation.] ‘The magistrate’s determination of probable cause is entitled to deferential review.’ ” (People v. Garcia, supra, 111 Cal.App.4th at p. 720.)


As indicated above, Detective Ronquillo stated in his affidavit that he believed “currency derived from methamphetamine sales [would] be found” in the Irene Street residence. Appellant agues this is a “bare, conclusory statement,” unsupported by any statement of the reasons for, or facts underlying, such belief. He argues that the affidavit did not “establish[ ] that he actually spent the night there or that he was living at that location.” And even if it was “established” appellant lived at the Irene Street residence, he argues, the affidavit does not establish a sufficient nexus between the residence and criminal activity. In support of this claim he notes that after the controlled buy, appellant went to the Jefferson Street residence, not the Irene Street residence. These contentions are without merit.


We first examine the showing that appellant lived at the Irene Street residence. The affidavit indicates the following. Although initially police observed appellant’s vehicles parked outside the Jefferson Street residence and appellant entering that residence, subsequently the Jefferson Street residence appeared to be empty, and a “For Rent” sign was posted. However, even before that residence appeared to be empty, police observed appellant driving “between” that location and the Irene Street residence, and thereafter police observed the following: appellant’s vehicles were parked at the Irene Street residence late in the evening and early in the morning; appellant “freely entered and exited” that location; and on at least two occasions appellant drove from that location to other locations where he engaged in activities Detective Ronquillo recognized as being consistent with drug trafficking.


Notwithstanding that appellant apparently provided DMV addresses on Decatur Street and Ming Avenue but not Irene Street, the presence of appellant’s vehicles at the Irene Street residence, and in particular the fact that vehicles were there late in the evening and early in the morning, considered in combination with the observations of appellant “freely” entering and leaving the residence on multiple occasions, support the inference appellant was living at the Irene Street residence.


We next turn to the question of whether the affidavit contained a sufficient showing of a nexus between the Irene Street residence and criminal activity. There is no serious dispute the affidavit is sufficient to establish probable cause that appellant was engaged in criminal activity, specifically, drug dealing: he was observed selling to the CRI a substance that was later determined to contain methamphetamine, and he later drove from the Irene Street residence to parts of Bakersfield where he engaged in activity known to Detective Ronquillo to be consistent with drug dealing.


We recognize, as appellant points out, that “it cannot follow in all cases, simply from the existence of probable cause to believe a suspect guilty, that there is also probable cause to search his residence.” (U.S. v. Lucarz (9th Cir. 1970) 430 F.2d 1051, 1054.) However, “[t]he nexus between the objects to be seized and the premises searched need not, and often will not, rest on direct observation, but rather ‘can be inferred from the type of crime, the nature of items sought, the extent of an opportunity for concealment and normal inferences as to where a criminal would hide [evidence of a crime] . . . .’ ” (U.S v. Reddrick (7th Cir. 1996) 90 F.3d 1276, 1281, emphasis added.) Thus, it has been “ ‘recognized that, in issuing a search warrant, a magistrate is entitled to draw reasonable inferences about where the evidence is likely to be kept, based on the nature of the evidence and the type of offense[]’ [citation], and that ‘in the case of drug dealers evidence is likely to be found where the dealers live[]’ [citation].” (Ibid.; accord, U.S. v McClellan (7th Cir. 1999) 165 F.3d 535, 546; U.S. v. Feliz (1999) 182 F.3d 82, 87-88.) As the court asked rhetorically in U.S. v. Feliz, supra, 182 F.3d at p. 88, “If [the defendant, a drug dealer] did not maintain his accounts and records, and the presumably large sums of money received in the course of his dealings, at his apartment, where else would he keep them?” Thus, in the instant case, the magistrate was entitled to infer that, as Detective Ronquillo asserted, there was probable cause that appellant kept the proceeds of his illegal drug sales in the Irene Street residence.


“Although individual facts within the affidavit might also be consistent with lawful activities, it is the totality of the circumstances that must be considered. The fact that there may be more than one reasonable inference to be drawn does not defeat the issuing magistrate’s finding of probable cause.” (People v. Stanley, supra, 72 Cal.App.4th at p. 1555.) Here, when we interpret the affidavit in the proper “practical, common-sense” fashion, evaluate it in light of the totality of the circumstances and accord proper deference to both the experienced officer/affiant and the trial court, we conclude the magistrate did not err in determining that the affidavit established probable cause that evidence of a crime would be found in the premises searched. (Illinois v. Gates, supra, 462 U.S. at p. 238.)


DISPOSITION


The judgment is affirmed.


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* Before Wiseman, Acting P.J., Cornell, J., and Gomes, J.


[1] The remainder of the “Factual Background” section is taken from the affidavit executed by Detective Ronquillo.


[2] For the sake of brevity, we will use the masculine pronoun in referring to the CRI.

P. v. Creamer

Filed 11/30/05 P. v. Creamer 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









THE PEOPLE,


Plaintiff and Respondent,


v.


STEPHEN CREAMER,


Defendant and Appellant.





F046937



(Super. Ct. No. MCR017041)




OPINION




THE COURT*


APPEAL from a judgment of the Superior Court of Madera County. Jennifer R.S. Detjen, Judge.


Paul V. Carroll, 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, Stephen G. Herndon and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.



-ooOoo-


INTRODUCTION


On June 25, 2004, appellant Stephen Creamer, was found guilty after a jury trial of two counts of committing a lewd and lascivious act on a child under age 14 (Pen. Code, § 288, subd. (a), counts one & three) and exhibition of lewd material to a minor (Pen. Code, § 288.2, subd. (a), count two). The trial court sentenced Creamer to the midterm of six years on count three and to a consecutive term of two years on count one for a total prison term of eight years. The court imposed an eight-month term on count two to run concurrent with Creamer’s sentence. The court granted applicable custody credits and imposed a restitution fine.


On appeal, Creamer contends the trial court improperly instructed the jury on the effect of voluntary intoxication. Creamer also contends the trial court erred in denying the jury’s request for the reading back of defense counsel’s closing argument.


FACTS


Creamer lived with Kim and her two daughters. The victims, M. and R., routinely had sleepovers with Kim’s daughters. When the incidents occurred, M. was age 10 and R. was 8 years old.


On November 11, 2003, Creamer was in his residence. Kim’s daughters were having a sleepover with M., R., and another girl. While M. was playing Monopoly, Creamer touched her buttock. After M. went to sleep, she awoke to find Creamer on top of her. M. was on her stomach. Creamer was moving up and down on her. M. could feel Creamer’s penis touching her buttocks. M. felt sick. She thought she was dreaming and fell asleep.


When M. awoke, she was alone with Creamer in his bedroom. The other children were in the other bedroom. M., who was sure she went to sleep wearing underwear, was not wearing her underwear when she woke up.


R. testified that Creamer was her best friend’s stepfather. Some time during the evening when she slept over, Creamer placed a movie into the VCR. R. saw two naked women touching a man’s penis. Later that evening, R. was in Creamer’s room lying on her back in his bed. Creamer placed his penis inside R.’s vagina. Creamer removed his penis and R. saw something white come out of his penis. The next day R. told Creamer’s ex-wife what Creamer had done the previous evening.


Ruth Taylor, a pediatric nurse practitioner, examined R. on November 18, 2003. R. told Taylor someone had placed his penis into her vagina and it hurt “the worst ever.” Because R. was abused more than 72 hours earlier, Taylor conducted a sexual abuse examination rather than an “evidential examination.” Taylor concluded R.’s physical conditions were normal. Taylor was not surprised because most children she has examined for sexual abuse have normal findings.


Madera Police Officer Thomas Burns executed a search warrant based on an alleged sexual assault. Burns found adult pornographic magazines and movies as well as homemade Polaroid photographs. Burns viewed the videotapes to make sure there were no children. One commercially produced videotape was cued to a scene where two women were orally copulating a man.


Creamer testified he had served in the United States Army and was involved in combat in Bosnia. Creamer retired from the Army on October 1, 1998. Creamer was taking prescription medication, Diazepam, for a “borderline” Post Traumatic Stress Disorder. Creamer explained that he takes a triple dose at night which causes him to go to sleep immediately. The medication causes Creamer to ignore things happening around him. The evening of M. and R.’s sleepover, Creamer took his medication. Creamer went to sleep between 6:00 p.m. and 8:00 p.m. He did not remember anything that happened that evening. Creamer denied ever molesting any child and denied molesting M. He denied having sex with R. or showing her a pornographic videotape.


INTOXICATION INSTRUCTIONS


Creamer contends the trial court erred in admonishing the jury with CALJIC No. 4.21.1 because the instruction does not accurately state the law because it fails to “clearly inform the jury that voluntary intoxication can negate specific intent.” According to Creamer, CALJIC No. 4.21.1 only implies that voluntary intoxication may negate specific intent.[1]


Respondent replies that CALJIC No. 4.21.1 was requested by Creamer. According to respondent, any modification to CALJIC No. 4.21.1 would be a pinpoint instruction. Creamer’s failure to request a pinpoint instruction constitutes a waiver of the issue on appeal. Respondent further argues that Creamer’s argument fails on its merits.


The failure to object to an instruction and to request an alternative instruction generally precludes the defendant from raising the alleged instructional error on appeal. (People v. Hart (1999) 20 Cal.4th 546, 622.) The failure by the appellant to request clarification or amplification constitutes a waiver of the issue on appeal. (People v. Arias (1996) 13 Cal.4th 92, 171.) Where the defendant believes an instruction is unclear, he or she has the obligation to request clarification from the trial court. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1192.)


Respondent accurately points out that according to the notes on the instruction at page 86 of the clerk’s transcript, it was Creamer who requested CALJIC No. 4.21.1. Creamer replies that his challenge is to the legal correctness of the instruction. We disagree. Creamer’s contention is that the instruction fails to expressly state that voluntary intoxication can negate specific intent. The instruction, in relevant part says, “If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether or not that the defendant had the specific intent or mental state.”


The practical meaning of this sentence is that the jury can find the absence of specific intent if it finds the defendant’s mental state was affected by intoxication. This is obviously a factual issue for the jury to decide. The instruction goes on to explain that if the jury has a reasonable doubt whether the defendant had the required specific intent, it must find the defendant did not have that intent. The instruction authorizes the jury to negate specific intent depending on the facts of the particular case. Creamer’s argument amounts to a demand for clarification of a point already made in the given instructions. Creamer, however, did not ask for such clarification from the trial court and cannot raise the issue for the first time on appeal.


On the merits, Creamer’s argument also fails. The California Supreme Court has found no problem with the use of CALJIC No. 4.21.1.[2] (See People v. Saille (1991) 54 Cal.3d 1103, 1121.) Here, Creamer testified the medication he took for his borderline posttraumatic stress condition caused him to completely fall asleep the evening the events occurred. The challenged instruction gave the jury the opportunity to find Creamer did not act with the requisite specific intent due to his intoxication from the medication. The jury apparently rejected this testimony and defense. We find no instructional error in the court’s use of CALJIC No. 4.21.1.


READING BACK OF TRIAL COUNSEL’S CLOSING ARGUMENT


Creamer contends the trial court erred in denying the jury’s request for the reading back of his counsel’s closing argument to the jury. We do not find that the trial court abused its discretion.


During jury deliberations, there was a request to hear the reading back of M.’s testimony and defense counsel’s closing argument.[3] The court explained to the parties that it would permit the reading back of M.’s testimony, but it would not allow the reading back of counsel’s closing argument because it was not testimony. Defense counsel was concerned that if the jury had a question about the instructions, he wanted the court to point out which instructions were relevant to the jury’s question. Counsel otherwise agreed not to have his closing argument read back to the jury.[4]


Creamer argues the trial court misunderstood the law because the reading back of counsel’s closing argument is permitted. Respondent replies that the trial court did not indicate it lacked authority to allow the reading back of counsel’s argument. The court decided it was only going to allow the reading back of evidence from the case. We agree with respondent.[5]


Even where the trial court expressly indicates it lacks authority to order the reading back, however, the error has been found not to be prejudicial under a Watson standard of review.[6] The theory argued to the jury was not of such complexity that its repetition was necessary in order for the defendant to receive the full benefit of the adversarial process. Where the disputed issue is covered by the jury instructions, it is not reasonably probable that, had the trial court read back counsel’s summation, the jury would have reached a different verdict. (People v. Sims (1993) 5 Cal.4th 405, 452-453 [questioned on another ground in People v. Storm (2002) 28 Cal.4th 1007, 1031-1032].)


In the instant action, the intoxication theory argued to the jury was not of such complexity that its repetition was necessary for the defendant to receive the full benefit of the adversarial process. Though he argues to the contrary above, Creamer received complete jury instructions on the effects of voluntary intoxication, his primary defense at trial. Under these facts, it is not more reasonably probable that, had the trial court read back defense counsel’s closing argument, the jury would have reached a different verdict.


Having reached this conclusion, we reject Creamer’s final argument that trial counsel was ineffective for failing to object to the trial court’s decision not to read back his closing argument. To prevail on this point, Creamer also has to demonstrate prejudice. (People v. Maury (2003) 30 Cal.4th 342, 389.) As we observe above, he has not done so.


DISPOSITION


The judgment is affirmed.


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*Before Harris, Acting P.J., Cornell, J., and Dawson, J.


[1] The trial court read the jury the following version of CALJIC No. 4.21.1:


“It is the general rule that no act committed by a person while in the state of voluntary intoxication is less criminal by reason of that condition.


“Thus, in the crime of assault, which is lesser to the crime of ‘lewd act with [a] child,’ the fact that the defendant was voluntarily intoxicated is not a defense and does not relieve the defendant of the responsibility for the crime.


“However, there is an exception to this general rule, namely, where a specific intent or mental state is an essential element of the crime. In that event, you should consider the defendant’s voluntary intoxication in deciding whether the defendant possessed the [required] specific intent or mental state at the time of the commission of the alleged crime.


“Thus, in the crime of “lewd act with [a] child,” a necessary element is the existence in the mind of the defendant of a certain specific intent. In the crime of ‘harmful matter exhibited to a minor’ a necessary element is the existence in the mind of the defendant in a specific intent and mental state. The requisite specific intent or mental state is included in the definition of the crimes set forth elsewhere in these instructions.


“If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether or not that the defendant had the required specific intent or mental state.


“If from all the evidence you have a reasonable doubt whether a defendant had the required specific intent or mental state, you must find the defendant did not have the specific intent or mental state.”


[2] This court has rejected the argument that CALJIC No. 4.21.1 is confusing and that it shifts the burden to the defendant to prove his or her innocence where there is an issue of voluntary intoxication. (People v. Aguirre (1995) 31 Cal.App.4th 391, 400-402.)


[3] The jury earlier asked for the reading back of Ruth Tyler, the nurse who examined R.


[4] Defense counsel’s argument to the jury was brief. Counsel argued that it was impossible for his client to form intent because he essentially passed out after taking his medication. Counsel argued there was no testimony from any witness contradicting his client’s testimony. Counsel argued his client was too intoxicated from his medication to form specific intent to commit the alleged offenses.


[5] The unsworn statements of counsel are not evidence. (In re Zeth S. (2003) 31 Cal.4th 396, 414.)


[6] People v. Watson (1956) 46 Cal.2d 818, 836.